dissenting.
The case is not here as if on writ of certiorari, or appeal for review of error alleged to have been committed by the lower court. This is an application for the writs of mandamus and prohibition to command and restrain action by the judges named. These may not be granted unless the lower court was plainly without jurisdiction to hear and determine the case or the particular issue. In re New York & P. R. S. S. Co., 155 U. S. 523, 531. Ex parte *497Oklahoma, 220 U. S. 191, 208. Ex parte Chicago, R. I. & P. Ry., 255 U. S. 273, 275. Precisely, the question is whether, on the facts here disclosed, the court was without power to consider and decide upon the corporation’s application for an order directing the Board to certify and file a transcript of the record and restraining in the meantime any other action by it. The decision just announced answers affirmatively, and that is the basis- on which the Court commands vacation of the order of the lower court and prohibits it from reviewing the order of the Board, without first giving it a reasonable opportunity to vacate its order; that is, without giving the Board more time to proceed under § 10 (d). Obviously jurisdiction of the circuit court of appeals attached upon the filing of the corporation’s petition for review and service of a copy on the Board. Any other construction of § 10 (f) would let the Board, by refusing to certify a transcript of proceedings before it, prevent judicial review of its orders. Congress did not so intend. While the. statute expressly re- , quires the person aggrieved to file a certified transcript, it impliedly, but not less plainly, commands the Board to certify the record. This Court’s decision rests on the statement that, as the term is to be applied in this instance, jurisdictiqn is the power'to hear'and determine the controversy presented in a given set of circumstances. If the lower court had jurisdiction to entertain and decide the corporation’s motion, writs of mandamus and prohibition may not be granted, for they are not available for correction of mere error or even abuse of discretion. Interstate Commerce Comm’n v. New York, N. H. & H. R. Co., 287 U. S. 178, 203-204. Ex parte Whitney, 13 Pet. 404, 408. Ex parte Taylor, 14 How. 3, 13. Ex parte Railway Co., 101 U. S. 711, 720. In re Hawkins, Petitioner, 147 U. S. 486, 490. In re Atlantic City Railroad, 164 U. S. 633, 635. In re James Pollitz, 206 U. S. 323, 331. Cf. Ex parte Simons, 247 U. S. 231, 240.
*498Stripped of unnecessary details and language, the circumstances under which the lower court made the challengéd order may be stated briefly.
Upon charges made by the Steel Workers’ Organizing Committee, the Board, July 15, 1937, issued complaint alleging that the corporation was engaging in unfair labor practices. The corporation joined issue. Before it filed answer, hearings were held by the Board, from July 21 to July 24. After answer, there were hearings before an examiner at various times and places between August 9 and September 27. April 8, 1938, the Board made its decision and order. It found the corporation guilty of practices denounced by the Act. It ordered it to cease and desist, to reinstate certain persons/ to pay sufficient to. equalize what certain persons would have earned if employed by the corporation during specified periods, less the amount they earned at other work, during those periods,.
April. 18, the corporation filed in the circuit court of appeals its petition to have the Board’s order adjudged invalid. The petition charges that, in violation of the corporation’s rights under the due pr’ocess clause of the Fifth Amendment, the Board ordered the 'corporation to reinstate persons not alleged in the complaint to have been unlawfully discharged or discriminated against by the corporation; and so directed notwithstanding the corporation had never been accorded or offered a hearing or opportunity of making defense as to the asserted rights of those persons; that the Board made the order without affording the corporation opportunity to present its cáse by argument,, orally or upon brief. It alleges that, under the terms of the order, about five thousand persons may claim reinstatement, petitioner is required to reinstate or pay them as specified, the average wage is JS6.50 per-day. And it asserts that to defer reinstatement, pending decision by the court as to validity, of -the order, would *499involve a risk of such magnitude as imminently to threaten its right to have, review in court. And-the petition avers that unless the order be stayed, irreparable injury and loss will result to the corporation and that it will be denied review of a substantial part of the order. It prays service of a copy on the Board, certification by the Board of the transcript as required by law, invalidation of the order, direction to the Board to dismiss its complaint, and a stay of the order and of proceedings by the Board to enforce it, excepting such as may be taken in court.
April 18, the" day on which the corporation filed petition for review, the Board, consistently with the corporation’s claim as to its duty under the Act, agreed promptly to certify the transcript and.to file it in court. April 22, the corporation filed an application for stay and temporary relief. Its application cited § 10 (g), which declares that commencement of proceedings under § 10 (f) shall not, unless specifically ordered by the court, operate as a stay of the Board’s order. It stated: The purpose of the application was to prevent irreparable loss and denial of review. If, pending final determination of the case, petitioner should fail to make reinstatements in accordance with the.order, its potential weekly liability would exceed $95,000. On that basis the corporation sought suspension of the portion of the order that relates to reinstatement or payment of wages, so that, if it should be upheld, the corporation’s liability to reinstate or to pay would commence ten days after the final decree of the court. In a brief submitted in support of its ¿notion, the corporation maintained that the order is invalid because the corporation was not afforded a fair and full hearing and because the order is one for reemployment and not for reinstatement; and that unless thq stay be granted, the corporation will suffer irreparable financial losses.
*500April 30 the corporation’s motion came on for hearing. The Board appeared.,and argued against it. The court neither • granted nor denied the application. The rule to show cause, issued May 3, recites that at the hearing, April 30, the Board stated that it “was seriously considering withdrawing, modifying or changing its order in the case and reopening same.” The Board’s application for vacation of that order states that at the hearing on April 30 the Board advised the court that it was contemplating vacating its order, and would advise the court of its final position not later than May 4, 1938; that, on May 3, it notified the corporation that it had definitely decided to vacate the order; but that, beforé any steps to do so.could be taken, the court had issued the restraining order. The Board maintained that as the transcript had not been filed, § 10 (d) was applicable and that the Board then had the right to withdraw or vacate the order.
In its answer to the rule to show cause, the Board says that it was not guilty of refusal to certify or of dilatory tactics, and that on April 18 its counsel informed the corporation’s counsel that the Board would as promptly as possible prepare the record for certification. “This task of considerable magnitude was forthwith commenced and was incomplete a week later when the supervening decision of the Supreme Court in Morgan v. United States, 304 U. S. 1, was rendered. . . . There is no question in this case, therefore, whether the court had jurisdiction to require the Board to file a record when such filing has been long delayed or refused by the Board. The Board has with all promptness elected to exercise its power to vacate its order under § 10 (d), and there Is no merit in petitioner’s claim that that section is inapplicable because the Board has evaded its obligations under the Act.”
In these circumstances the court did not lack jurisdiction to hear and determine the controversy presented by *501the corporation’s application for an order directing the Board to certify the record for filing in court. The Act contemplates prompt action. Section 10 (i) declares that petitions filed under it shall be heard expeditiously “and if possible within ten days after they have been docketed.” Power under § 10 (d) to change or vacate its order does not enable the Board to delay filing the record. At the bar counsel expressed the opinion that the Board may vacate an order without notice, § 10 (d). It had fifteen days, April 18 to May 3, to decide whether to vacate the order or join issue. That , period included a week before and a week after our decision in Morgan v. United States, supra. The Board does not claim that it needed until May 3 to certify the transcript. ,So the issue before the lower court was the very narrow one, whether for an unreasonable length of time the Board, withheld the record. And that question involves consideration of subsidiary ones: To what extent, if at all, a certification may be delayed by the choice of the Board to enable it to consider modification or repeal of its order. Whether after decision in Morgan v. United States more than a reasonable time had elapsed. While there is room for difference of opinion on these questions, it is very hard to perceive on what ground it may . be held that the court was without jurisdiction to decide them, or even to conclude that the order was an arbitrary exertion of power, or that restraint against further delay by the Board involved an abuse of discretion.
I am of opinion that the lower court had jurisdiction of the case and of the issues decided by the challenged order, and that therefore the Board’s application for writs of mandamus and prohibition should be denied.
Mr. Justice McReynolds concurs in this opinion.