(dissenting).
I agree that this court has the jurisdiction and power to issue the writ. The question is whether in the exercise of a sound discretion this is an appropriate case for the utilization of that power. As was stated in Roche v. Evaporated Milk Association, 319 U.S. 21, 25, 63 S. Ct. 938, 941, 87 L.Ed. 1185:
“The common-law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court. Ex parte Republic of Peru, supra [318 U.S. 578, at page 584], 63 S.Ct. 797 [793, 87 L.Ed. 1014], and cases cited; Whitney v. Dick, 202 U.S. 132, 136, 140, 26 S.Ct. 584, 586, 587, 50 L.Ed. 963. Hence the question presented on this record is not whether the court below had power to grant the writ but whether in the light of all the circumstances the case was an appropriate one for the exercise of that power. In determining what is appropriate we look to those principles which should guide judicial discretion in the use of an extraordinary remedy rather than to formal rules rigorously controlling judicial action.”
Further the court stated, 319 U. S. at page 26, 63 S.Ct. at page 941:
“The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferi- or court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. [Citing cases.]”
The last statement was quoted with approval in Bankers Life & Casualty Co. V. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 148, 98 L.Ed. 106, and the court pointed out that the respondent Judge *712had jurisdiction of the subject matter and the person and that it was necessary in the course of the litigation for him to make the ruling under attack. The court further stated:
“Its decision against petitioner, even if erroneous — which we do not pass upon — involved no abuse of judicial power, Roche v. Evaporated Milk Ass'n, supra, and is reviewable upon appeal after final judgment. If we applied the reasoning advanced by the petitioner, then every interlocutory order which is wrong might be reviewed under the All Writs Act."
No criteria are supplied either by statute or rule for determining the “exceptional condition” referred to in Rule 53(b). Therefore, Judges might well disagree as to the circumstances which would justify a reference. Respondent in the exercise of his judgment concluded that the circumstances were sufficient and ruled accordingly. A Judge with authority to make a correct ruling has the same authority to make an erroneous ruling. As was stated in the Roche case, 319 U.S. at page 27, 63 S.Ct. at page 942:
“Its decision, even if erroneous— a question on which we do not pass —involved no abuse of judicial power, and any error which it may have committed is reviewable by the circuit court of appeals upon appeal appropriately taken from a final judgment, and by this Court by writ of certiorari.”
Stated another way in the same opinion, 319 U.S. at page 32, 63 S.Ct. at page 945:
“In the present case the district court has acted within its jurisdiction and has rendered a decision which, even if erroneous, involved no abuse of judicial power.”
The majority opinion asserts that respondent in entering the order of reference abused his discretion. No reason is assigned, however, for such holding other than that respondent made an erroneous ruling. But that is not sufficient, as is shown by statements from Roche and Bankers Life, supra. In fact, respondent in entering the order under attack had at least as wide a discretion as this court has in deciding whether the writ should issue. In my opinion, there was no abuse of discretion by respondent, but the issuance of the writ will constitute an abuse of discretion by this court. The shoe is to be placed on the wrong foot.
The majority opinion reasons that unless action is taken at this time “petitioners are faced with the necessity and great expense of protracted trials which conceivably may eventually lead nowhere but to a complete retrial of the causes before a competent tribunal.” This sort of reasoning has been definitely repudiated. In the Roche case, the court in response to the same contention stated 319 U.S. at page 30, 63 S.Ct. at page 943:
“We may assume, as they allege, that that trial may be of several months’ duration and may be correspondingly costly and inconvenient. But that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable. Where the appeal statutes establish the conditions of appellate review an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases.”
See same case, 319 U.S. at page 31, 63 S.Ct. 938, and also the Bankers Life case, 346 U.S. at page 379, 74 S.Ct. 145. Respondent’s action at most constitutes no more than an erroneous ruling entered in the course of the proceeding and will be subject to review upon appeal from a final judgment.
The majority places great reliance upon McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992, and United States v. Kirkpatrick, 3 Cir., 186 F.2d 393. The opinion states that these two cases are “decisive of the issues before us.” In my view, that is an erroneous conception of those cases. As stated, the
*713Supreme Court in McCullough summarily directed a District Judge to vacate an order of reference. Apparently there has been considerable loose talk as to the reason for the court’s action, which I suspect that court will, sooner or later, be called upon to repudiate. It is not difficult, however, to ascertain why the Supreme Court directed the issuance of the writ in that case. While it stated no reason, it cited only Los Angeles Brush Manufacturing Co. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481. In the James case, as in the instant case, it was sought by mandamus to compel a District Judge to vacate an order referring a patent case to a Master. On page 703 of 272 U.S., on page 288 of 47 S.Ct., of the opinion, the order of the District Judge is set forth, which contains the reasons for making the reference, consisting in the main of a congested court calendar. While the reference in that case was under Equity Rule 59, it is pertinent to note that the requirement under that rule was substantially the same as under present Rule 53 (b), that is, that it should be made “only upon a showing that some exceptional condition requires it.” The Supreme Court denied issuance of the writ but engaged in considerable discussion relative to mandamus, evidently for the enlightenment of District Judges, see, 272 U.S. at page 708, 47 S.Ct. 286. In that discussion the court stated 272 U.S. at page 707, 47 S.Ct. at page 289:
“Were it [the Supreme Court] to find that the rules have been practically nullified by a District Judge or by a concert of action on the part of several District Judges, it would not hesitate to restrain them.”
Evidently that is the statement in the James case which the court relied upon in the McCullough ease. Certainly the court in the latter case did not cite the former as authority for the proposition that a District Judge was subject to mandamus for ordering a reference because of a congested docket because the court in the James case refused to issue a writ where the reference was made for that reason. If there be any doubt, however, why the writ was directed to issue in McCullough, it is dispelled in Roche, wherein the court stated, 319 U.S. at page 31, 63 S.Ct. at page 944:
“Hence there are in this case no special circumstances which would justify the issuance of the writ, such as the persistent disregard of the Rules of Civil Procedure, 28 U.S, C.A. following section 723c, prescribed by this court, found in McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (see Los Angeles Brush Corp. v. James, 272 U.S. 701, 706 [708], 47 S.Ct. 286, 288, 289, 71 L.Ed. 481) * * ”
The Kirkpatrick case falls in the same category. There it appears that a conference of District Judges was called by the Chief Judge to formulate a plan to relieve a congested docket of admiralty cases. A plan was agreed upon among the Judges by which such cases were to be referred to Commissioners. In fact, the court, 186 F.2d at page 397, referred to the plan as “a wholesale reference of admiralty cases.” It is true in Kirkpatrick the court, 186 F.2d at page 399, referring to the McCullough case, stated that a congested court docket was not regarded in that case “as sufficient to empower the district court to make a reference in that case.” I think that is a gratuitous statement. At any rate, no word has been spoken by the Supreme Court, directly or indirectly, that a writ of mandamus should issue to restrain a District Judge from referring a case to a Master because of a congested docket. On the other hand, the Supreme Court in James denied the writ where reference was made for that reason and has clearly indicated that the writ issued in McCullough because of a practice or custom to refer all cases of a certain class to a Master.
Reference as was done in McCullough and Kirkpatrick, in accordance with or by reason of a plan, practice or custom, constitutes an abdication of the judicial function. It is the very antithesis of the exercise of judicial discretion. A reference under such circumstances bears no resemblance to that with which we are now concerned. Respondent’s reply to *714the rule to show cause' sets forth the circumstances which he took into consideration. He decided, as he had the authority to do, that the showing was sufficient. We need not now be concerned with whether that decision was correct or erroneous. In any event, there was no abuse of judicial power which should move this court in the exercise of its sound discretion to issue this extraordinary writ.
1 No good purpose could be served in commenting upon numerous other cases referred to in the majority opinion, other than the recent opinion of this court in Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 7 Cir., 220 F.2d 299. That case rather than supporting the opinion illustrates its fallacy. There, .the District Judge denied a motion for transfer under 28 U.S.C.A. .§ 1404(a). This court, in directing the issuance of the writ, stated, 220 F.2d at page 304:
“To warrant action by us, there must be something more than an erroneous decision. Our problem is, was the refusal by the District .Judge to order the transfer, an abuse of discretion?”
In the instant situation the most that can be said of respondent’s action is that he made an erroneous decision. In the Igoe case we held that there had been an abuse of discretion on the basis that the statute providing for the transfer of eases set forth the criteria to be employed in ruling upon such a motion. Such being the case, this court concluded that there had been an abuse of discretion because respondent had failed to follow the criteria which Congress had prescribed. In the instant case, how- ' ever, as pointed out, the rule under consideration provides no criteria as to what constitutes the “exceptional condition,” and respondent’s judgment on that score is, if challenged, subject to review on appeal from a final judgment.
Finally, the majority appears to place reliance upon the fact that the order of reference was made over objection of both parties to the suit. Any logic in this reasoning is not discernible to me. The court’s jurisdiction, with its right to exercise its discretion in making the reference, was precisely the same whether it was made with the consent of the ■parties, over their objection or on the court’s own volition.
The action of the majority will, in my judgment, seriously impede the disposition of business in the District Courts of this Circuit, particularly in Chicago, where because of the heavy case load a Master is an indispensable arm of the court. No District Judge can now feel safe in making such a reference, with knowledge that this court is likely to substitute its judgment for his. If reference is to be outlawed, it should be by legislation or Supreme Court rule rather than by decision of this court. It is easy to speculate on other means of relieving congested court calendars, such as the procurement of additional Judges. Such potential relief, however, which may never materialize, is of little aid. District Judges are faced with realities which speculative theories do not dispel.
I would deny the issuance of the writ.