Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

record to persons appointed by the President as their successors, whose title they disputed ;66 to transmit a specified paper with the transcript of the record.67

The writ will not issue except in an extraordinary case against a judge where there is no proof of a demand that he do as the writ would direct,68 nor to compel the performance of an act by a person who is under no duty in respect thereto.69

Where the record shows apparent jurisdiction, the writ will not be issued to compel a dismissal of a cause for want thereof, unless evidence showing such a defect is before the court.70 It is not the office of a mandamus to direct a court to decide in a particular way a matter before it within its jurisdiction,71 even when there is no remedy by writ of error or appeal.72

The issue of the writ is within the discretion of the court.78

As a general rule a writ of mandamus will not issue when there is any other adequate remedy for the relator.74 A mandamus will not issue in a case of doubtful right.75 A mandamus will not issue in a case where the relator has another adequate remedy, and the grant of the writ may affect the rights of

66 Re Parsons, 150 U. S. 150, 37 L. ed. 1034.

67 Starcke v. Klein, C. C. A., 62 Fed. 502. The proper remedy seems to be a certiorari for a diminution of the record. See infra, $ 460.

68 Edinburg Coal Co. v. Humphreys, C. C. A., 134 Fed. 839.

69 U. S. y. Lake Drummond Canal & Water Co., 228 Fed. 66; U. S. v. Basic Products Co., 260 Fed. 472.

70 Re Cleland, 218 U. S. 120, 54 L. ed. 962. Where the evidence was not before the court of review, it refused to issue the writ to compel the dismissal of proceedings in bankruptcy against the corporation, on the ground that the petition failed to show that such corporation belonged to the class specified in the statute. Matter of Riggs, 214 U. S. 9, 53 L. ed. 887.

71 Re Morrison, 147 U. S. 1, 26,

37 L. ed. 55, 65. Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524; Ex parte Park & Tilford, 244 U. S. 582; Ex parte Slater, 246 U. S. 128. A determination; Primos Chemical Co. v. Fulton Steel Corporation, 254 Fed. 454.

72 Re Rice, 155 U. S. 396, 39 L. ed. 198.

73 Re Cleland, 218 U. S. 120, 122, 54 L. ed. 962, 964, where it was said that the delay and inconsistent position of the petitioner to the writ might be a ground for denying the same. Dowagiac Mfg. Co. v. Lochren, C. C. A., 143 Fed. 211.

74 Re Pennsylvania Co., 137 U. S. 451, 453, 34 L. ed. 738, 739.

75 U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 644, 34 L. ed. 811, 814, per Lamar, J., citing Life & Fire Ins. Co. v. Wilson's Heirs, 8 Pet. 291, 302, 8 L. ed. 949, 953.

persons who are not parties to the proceedings, or where it will be attended with manifest hardship and difficulties.76 The want of any other remedy does not always authorize the issue of the writ.77

A State court cannot by injunction or otherwise interfere with the issue of a writ of mandamus by a Federal court.78

§ 457a. Jurisdiction of the Supreme Court to issue writs of mandamus. The Supreme Court has power to issue writs of mandamus, in cases warranted by the principles and usages of law,' to any courts appointed under the authority of the United States; 2 or where a State or an ambassador, or other public minister, or a consul or vice-consul is a party, to persons holding office under the authority of the United States, 3 but when a State is a party, only when such officer is a citizen of another State. The Constitution prohibits the grant to that court of any further original jurisdiction to issue writs of mandamus to officers of the United States, 5

The power of the Supreme Court to issue writs of mandamus directed to other courts of the United States is authorized by the Constitution, because such a writ is in the nature of appellate jurisdiction. In a case ultimately within its power of review, the Supreme Court has jurisdiction thus to compel the filing of the record in a Circuit Court of Appeals. After the mandate of the Circuit Court of Appeals has been filed in a District Court it is doubtful whether the Supreme Court of the United

.

76 U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 644, 34 L. ed. 811, 814, per Lamar, J., citing People v. Forquer, Breese (1 Ill.), 68 (2d ed. 14); Van Rensselaer v. Sheriff of Albany, 1 Cowen (N. Y.), 501, 512; Oaks v. Hill, 8 Pick. (Mass.) 46. See U. S. v. Com ’rs, 5 Wall. 563, 18 L. ed. 692.

77 Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610.

78 U. 8. v. King, 74 Fed. 493 ; Clapp v. Otoe County, C. C. A., 104 Fed. 473.

$ 457a. U. S. R. S., $ 688.

2 Re Green, 141 U. S. 325, 35 L. ed. 765.

3 U. S. R. S., $ 688. See Kentucky v. Dennison, 24 How. 66, 16 L. ed. 717 ; Virginia v. Rives, 100 U. S. 313, 316, 25 L. ed. 667, 668, Re Baiz, 135 U. S. 403, 34 L. ed. 222; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386.

4 Re Massac setts, 197 U. S. 482, 49 L. ed. 845.

5 Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60.

6 Ex parte Crane, 5 Pet. 189, 190, 8 L. ed. 92, 93.

7 Ex parte Abdu, 247 U. S. 27.

States can issue the writ of mandamus directed to the former court except in aid of a proceeding instituted before the issue of such mandate. 8

The cases in which the Supreme Court has granted and those in which it has denied, applications for the writ of mandamus, are previously discussed.9

8 457b. Jurisdiction of the Circuit Courts of Appeals to issue writs of mandamus. The jurisdiction of the Circuit Court of Appeals to issue writs of mandamus exists only in cases where the relief is necessary to the complete exercise of their appellate jurisdiction. The writ may issue from a Circuit Court of Appeals in a proper case to compel action by the Court below which is required for the exercise of its functions by the court of review after the issue of the writ of error or the allowance of an appeal,2 or where the District Court is proceeding contrary to the mandate of the Circuit Court of Appeals,: or refuses to proceed in a suit pending below so that the appellate jurisdiction of the Circuit Court of Appeals may be defeated,4 or has improperly set aside an appealable decree.5

A Circuit Court of Appeals has no power to issue such a writ to control proceedings in a case which could not be brought before it by appeal of writ of error after final decree of judgment.

8 Ex parte Wagner, 249 U. S. 465. 9 See $ 457 supra.

$ 457b. 1 Muir v. Chatfield, C. C. A., 255 Fed. 24. Before the Evarts Act of March 3, 1891, a Circuit Court could, as ancillary to a case of which it had appellate jurisdiction, issue a writ of mandamus to a District Court of the United States. Smith v. Jackson, 1 Paine, 455; The New England, 3 Sumner, 495; The Enterprise, 3 Wall. Jr. 58; Ex parte Jesse Hoyt, 13 Pet. 279, 10 L. ed. 161.

2 Ibid; supra, $ 457.

3 Ex parte Chicago Title & Trust Co., C. C. A., 146 Fed. 742; Re Beckwith, C. C. A., 203 Fed. 45; A. D. Howe Mach. Co. v. Dayton, C. C. A., 210 Fed. 801, supra, 8 457.

4 McKlennan v. Carland, 217 U. S. 268, 54 L. ed. 762; Barber Asphalt Pav. Co. v. Morris, C. C. A., 132 Fed. 945; Re Robert Gair Co., 196 Fed. 492; Re Watts, C. C. A., 214 Fed. 80; Ex parte Equitable Trust Co., C. C. A., 231 Fed. 577, 585, 594.

5 Re Dennit, C. C. A., 215 Fed. 673, supra, 8 457.

6 U. 8. ex rel. Mudsill Min. Co. v.-Swan, C. C. A., 65 Fed. 647; U. S. v. Severens, C. C. A., 71 Fed. 768; Collin County Nat. Bank of McKinney, Tex. v. Hughes, C. C. A., 152 Fed. 414; Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524; U. S. v. Sessions, C. C. A., 205 Fed. 502; Muir v. Chatfield, C. C. A., 255 Fed. 24.

Such a court has no power to compel a District Court to take original jurisdiction of a cause, or to set aside an order remanding a case removed from a State court, or to refuse to discharge a vessel seized in admiralty unless the owner gives a bond, or to dismiss a case for want of jurisdiction as a Federal court,10 when the jurisdictional question is Federal in its nature; but it has been said that it may do so when the jurisdiction is disputed upon other grounds; 11 and it may compel a District Court to proceed in a case which the latter has stayed under the belief that it has no jurisdiction thereof.12

§ 457c. Jurisdiction of the District Courts to issue writs of mandamus. Except when specifically authorized by statute a District Court of the United States has no power to issue a writ of mandamus which is not necessary for, or ancillary to, the exercise of its jurisdiction in another matter; 1 even when the relief sought concerns a right secured by the Constitution of the United States,

177;

7 U. S. ex rel. Mudsill Min. Co. v. Swan, C. C. A., 65 Fed. 647; Collin County Nat. Bank of McKinney, Tex. v. Hughes, C. C. A., 152 Fed. 414; Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524.

8 U. S. v. Sessions, C. C. A., 205 Fed. 502.

9 Muir v. Chatfield, C. C. A., 255 Fed. 24.

10 U. S. v. Severens, C. C. A., 71 Fed. 768. See New Liverpool Salt Co. v. Wellborn, C. C. A., 160 Fed. 923; Hammond Lumber Co. v. U. S. District Court, C. C. A., 240 Fed. 924.

11 Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524.

12 McClellan v. Carland, 217 U. S. 268, 54 L. ed. 762.

$ 457c. iU. S. R. S., 8716; McIntire v. Wood, 7 Cranch, 504, 3 y. ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. ed. 340; Graham

v. Norton, 15 Wall. 427, 21 L. ed.

Bath County v. Amy, 13 Wall. 244, 20 L. ed. 539; County of Greene v. Daniel, 102 U. S. 187, 26 L. ed. 99; Davenport v. County of Dodge, 105 U. S. 237, 26 L. ed. 1018; Louisiana v. Jumel, 107 U. S. 711, 727, 27 L. ed. 448, 453; Gares v. N. W. Nat. Bldg., L. & I. Ass'n, 55 Fed. 209; Knapp v. Lake Shore & Michigan Southern Ry. Co., 197 U. S. 536, 49 L. ed. 870; Covington & C. Br. Co. v. Hager, 203 U. S. 109, 51 L. ed. 111. But see Frank v. Butler County, C. C. A., 139 Fed. 119; U. S., Butterworth & Lowe v. Sessions, C. C. A., 205 Fed. 502 ; Evans v. Yost, C. C. A., 255 Fed. 726; U. S. v. Nashville, C. & St. L. Ry., 217 Fed. 254.

2 Covington & C. Br. Co. v. Hager, 203 U. S. 109, 51 L. ed. 111. But it has been held that the writ may issue to compel a State Board of Equalization, with the exception

A District Court cannot by removal acquire jurisdiction to grant a mandamus in a case where it could not do so upon an application originally addressed to it; 3 but where the relief sought was a direction that a street railway company operate its cars in accordance with the conditions of its franchise, a removal was permitted. The fact that a District Court of the United States has no jurisdiction of an original proceeding by mandamus to compel municipal officers to levy a tax to pay bonds does not affect its jurisdiction of an action at law by a citizen of another State to recover judgment on such bonds, although any judgment recovered can be enforced only by mandamus. An application to a District Court by a receiver appointed in supplementary proceedings by a State court, seeking a writ of mandamus to require the clerk of the District Court to pay a fund in the registry of that court to the receiver, is an original proceeding, and the court has no power to grant the writ. The writ will not issue to compel a United States marshal to restore to office a deputy marshal whom he has removed ; 7 but it has been said that it may compel a post-master to forward to the first assistant postmaster general a letter carrier's application for re-instatement.8

The District Courts of the United States have power to issue a mandamus, upon motion of the Attorney-General or any District Attorney of the United States, to compel any officer of the United States to file the bonds, make returns, and perform any other duties required by chapter 95 of laws passed at the Second Session of the Forty-third Congress, relating to costs and fees; 9 and to compel the Union Pacific Railroad Company to operate its road as required by law.10

of the Governor, to equalize taxes. Huidekoper v. Hadley, C. C. A., 177 Fed. 1.

3 Indiana ex rel. Munice v. L. E. & W. R. Co., 85 Fed. 1. Contra, State ex rel. Postal Tel. Cable Co. v. Del. & A. Tel. & T. Co., 47 Fed. 633; People v. Colorado C. R. Co., 42 Fed. 638, 640.

4 State v. Tacoma Ry. & Power Co., 244 Fed. 989.

5 Waite v. City of Santa Cruz, 89 Fed. 619.

6 Re Forsyth, 78 Fed. 296.

7 U. S. v. Lapp, C. C. A., 244 Fed. 377.

8 U. S. v. Postmaster of City of Buffalo, 221 Fed. 689.

9 18 St. at L. 333.

10 17 St. at L. 509, $ 4; U. S. v. U. P. R. Co., 2 Dill. 527; U. P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428. It seems that the corporation may be thus compelled to operate its telegraph lines by itself alone through its own corporate officers.

« ΠροηγούμενηΣυνέχεια »