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The District Courts of the United States have jurisdiction to compel the compliance, by railway companies and other common carriers, with the provision of the Interstate Commerce Laws; but not unless the matter in question has first been submitted to the Interstate Commerce Commission.12 Such a court has not jurisdiction to compel the Interstate Commerce Commission to entertain a complaint which the Commission has dismissed under the belief that it is beyond its jurisdiction.18 Such a writ may be issued by the Supreme Court of the District of Columbia.14 It was held that the Circuit Court of the United States for the Southern District of New York had the power to grant the writ to compel the Board of General Appraisers to examine and decide a case, of which it had jurisdiction under the Customs Administrative Act.15

The District Courts have jurisdiction upon the application of the Attorney General to issue writs of mandamus commanding any persons or corporations to comply with the provisions of the act creating the Federal Trade Commission.16

The writ was denied when access was sought to the books and papers of a corporation not engaged in interstate or foreign commerce nor charged with unfair competition; when the purpose was to obtain information for the Navy Department of the cost of manufacturing of a patented article under a secret process. 17

The most frequent instances in which writs of mandamus are issued by the District Courts of the United States are to compel

Union Pac. Ry. Co. v. U. S., 59 Fed. 813, 833.

11 Jud. Code, $ 207, 36 St. at L. 1087. See $$ 75, 151, supra, 25 St. at L. 862, $$ 6, 10, 23, as amended by Act of June 29, 1906, ch. 3591, 34 St. at L. 585. See supra, 8 770, infra, $ 457d.

12 Baltimore & Ohio R. R. Co. v. U. $. ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. ed. 292; U. 8. v. Louisville & N. R. R. Co., 236 U. S. 318, 337.

13 Interstate Commerce Commission v. U. S. ex rel. Humboldt Steamship Co., 224 U. S. 474, 56 L. ed. 849.

14 Ibid, infra, $ 458.

15 26 St. at L. 137. Thomas Prosser & Son v. United States, C. C. A., 158 Fed. 971.

16 Act of Sept. 26, 1914, ch. 311, $ 9, 38 St. at L. 721, Comp. St., $ 883, supra, 8 77h.

17 U. S. v. Basic Products Co., 260 Fed. 472.

the levy of taxes by officers of municipal or other public corporations to satisfy judgments previously obtained in the courts which issue the writs. 18 When so employed, the writ is considered not to be a suit, but simply process in aid of execution.19 Where judgments rendered on certain railroad aid bonds issued by a township contained orders making it the duty of the county commissioners of the county in which the township was located to levy annually a necessary tax to collect the interest on the bonds, but such judgments did not direct the clerk to issue writs of mandamus thereafter if defaults should occur in the levy of the tax; it was held that they did not contain process within themselves for their own enforcement, so that, on the board's default, it was necessary for the owner of the judgments to obtain orders of the court to compel performance.20 It has been held that an action will lie to obtain a special judgment which will not warrant the issue of an execution and can only be enforced by a mandamus, although in the State court the only remedy could be an original mandamus.21 A mandamus was granted to compel the transfer of stock in a corporation to the buyer of the same at a sale under an execution issued by the same court.22 When the statute authorized a city council to levy a tax to pay a funded debt “if it believe that the public good and the best interests of the city require," a mandamus was issued

v.

419;

18 Riggs v. Johnson County, 6 20 Board of Com ’rs of Hertford Wall. 166, 18 L. ed. 768; Davies v. County, N. C. v. Tome, C. C. A., Corbin, 112 U. S. 36, 28 L. ed. 627; 153 Fed. 81. Commissioners Aspinwall, 24 21 Aylesworth y, Gratiot County, How. 376, 16 L. ed. 735; Supervis- 43 Fed. 350, 352. "Where the ors v. U. S., 4 Wall. 435, 18 L. ed. plaintiff is otherwise entitled to re

Weber v. Lee County, 6 Wall. lief in this court, he will not be 210, 18 L. ed. 781; U. S. v. New debarred therefrom by reason of the Orleans, 98 U. S. 381, 25 L. ed. 225; fact that his remedy in the State Tucker v. Hubbert, C. C. A., 196 . court upon the same cause of ac-. Fed. 849. But see Board of Com’rs tion would be of a character which of Grand County v. King, C. C. A., we were not entitled to administer 54 Fed. 202. For a case where the here." Ibid. See Jordan vi Cass county justices were imprisoned for County, 3 Dillon, 185; Davenport contempt because of their disobedi. v. County of Dodge, 105 U. S. 237, ence to such a writ see Re Copen- 26 L. ed. 1018. haver, 54 Fed. 660.

22 IIair v. Burnell, 106 Fed. 280. 19 Thompson v. Perris Trr. Dist., 116 Fed. 769.

after judgment to compel the levy of the tax.23 The writ issues to compel the proper county officers to assess at its true value the property subject to taxation in order that sufficient taxes may be levied to pay the amount due a judgment creditor.24

A State statute forbidding the issue of a mandamus, in certain cases, will not impair the jurisdiction of the Federal courts in that respect.25

A repeal of the State statute authorizing the officer to levy the tax does not divest the power of the Federal court to compel him to do so by mandamus, after a judgment upon a contract before the repeal.26 Otherwise the writ will not issue to compel an officer to perform a duty not imposed upon him by the law of the State under which he was appointed.27 A Federal court cannot appoint commissioners to levy and collect the tax, al. though a State court has commanded the county officers to make such levy and collection in payment of a judgment and these have failed to do so.28 Where the original State statuté made it the duty of the county court, when the office of sheriff was vacant, to appoint a single collector under a single bond, to collect all county taxes including those levied to pay the county debts, and an amendment, subsequent to the issues of the county bonds, authorized such a court to appoint several collectors giving separate security each charged with the duty of collecting a designated part of the taxes; it was held that this was unconstitutional and a writ was issued directing the county judge in case of such vacancy to appoint a special collector to collect levies to satisfy the judgment and other county taxes and to continue such appointment and direction until a collector should

23 Galena v. Amy, 5 Wall. 705, 18 L. ed. 560.

24 U. S. Fall City Const. Co. v. Jimmerson, C. C. A., 222 Fed. 489.

25 U. S. ex rel. Kilpatrick v. Capdevielle, C. C. A., 118 Fed. 809.

26 Wolff v. New Orleans, 103 U. S. 358, 26 L. ed. 395; Von Hoffman v. Quincy, 4 Wall. 535, 18 L. ed. 403.

27 U. S. v. Macon County, 99 U. S. 582, 25 L. ed. 331; U. S. v. La

Fed. Prac. Vol. III-5

bette County, 7 Fed. 318; 'U, S. v. County of Clark, 95 U. S. 769, 24 L. ed. 545; Memphis v. U. S., 97 U. S. 293, 24 L. ed. 920; Brownsville v. Loague, 129 U. $. 493, 32 L. ed. 780. Cf. Hicks v. Cleveland, C. C. A., 106 Fed. 459; Padgett v. Post, C. C. A., 106 Fed. 600; Little Rock v. U. S. ex rel. Howard, C. C. A., 103 Fed. 418.

28 Yost v. Dallas County, 236 U. S. 50.

accept the appointment and qualify.29 When a municipal corporation had refused to comply with its obligation to levy a special assessment to pay bonds, and a judgment was entered directing that a bond holder recover from it the amount for which the assessment should have been levied to be enforceable only by a writ of mandamus; a bill in equity to collect the amount from the persons against whom the assessment was directed was sustained.30 Where the charter of the municipal corporation has been repealed and its corporate existence extinguished, no such mandamus can be granted.31 It has been held that the court will not thus control the discretion of the municipal authorities, to make appropriations to pay current expenses out of the fund in the city treasury. When such a writ is issued by a District Court of the United States to enforce its own judgment, the jurisdiction cannot be enlarged so as to include a judgment of another court.38 A mandamus to compel the levy of a tax cannot be issued until after a judgment has been obtained.34 It been said that after a claim against a school district has been duly established and liquidated, mandamus is the proper remedy to compel payment thereof.35

$ 457d. Mandamus under the interstate commerce laws. The District Courts of the United States have jurisdiction, upon the application of the Attorney-General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of said Act to regulate commerce or of any Act supplementary thereto or amendatory thereof by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of said Acts, or any of them.” 1

29 Hendrickson v. Apperson, 245 U. S. 105.

30 Cushman v. Warren-Scharf Asphalt Paving Co., C. C. A., 220 Fed. 857.

31 Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197; Barkley v. Levee Com’rs, 93 U. S. 258, 23 L. ed. 893. But see U. S. v. Port of Mobile, 12 Fed. 768.

For the power of the court to appoint a receiver in such a case, see supra, $ 306.

32 Cleveland v. U. S., C. C. A., 111 Fed. 341, 347.

33 U. S. ex rel. Kerr v. New Orleans, C. C. A., 117 Fed. 610, 612.

34 Rosenbaum v. Bauer, 120 U. S. 450, 30 L. ed. 743, and cases cited.

35 Whitaker & Ray Co. v. Roberts, County Superintendent of Schools, 155 Fed. 882.

$ 457d. 1 Act of Feb. 4, 1887, ch. 104, $ 20, 24 St. at L. 386, as amended June 29, 1906, ch. 3591, 87, 34

The District Courts of the United States have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ; Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of the question of fact; Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement.” 2

The Act of March 1, 1913, providing for the physical valuation of property of carriers provides, “that the district courts of the United States shall have jurisdiction upon the application of the Attorney General of the United States at the request of the commission, alleging a failure to comply with or a violation of any of the provisions of this section by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of this section." 3

The writ has been issued to compel the Interstate Commerce Commission to receive proof as to the present cost of condemna

St. at L. 593, Feb. 25, 1909, 35 St. at L. 649, June 18, 1910, ch. 309, $ 14, 36 St. at L. 555, March 4, 1915, ch. 176 § 1, 38 St. at L. 1196, Aug. 9, 1916, ch. 301, 39 St. at L. 441, Feb. 28, 1920, $$ 434, 436, Comp. St., $ 8592, supra, $ 770.

2 Act of March 2, 1889, ch. 382, $ 10, 25 St. at L. 862, Comp. St., $ 8593.

3 Act of Feb. 4, 1887, ch. 104, $ 19a, added March 1913, ch. 92, 37 St. at L. 701, Feb. 28, 1920, $ 433, Comp. St., $ 8591.

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