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tion and damages, or purchase, of the land, or rights of way and terminals owned by a railroad and to report thereupon in accordance with the statute last quoted. To compel a carrier to carry the petitioners' coal in such reasonable quantities as could be handled. To compel a carrier to furnish the relator its equitable proportion of cars to carry coal, when the basis of distribution between neighboring shippers has been fixed by contract. To compel an express company to transport intoxicating liquor into a State where prohibition was established. To compel a common carrier to file annual reports. The writ will not be issued unless the matter has first been submitted to the Interstate Commerce Commission."

The writ was denied when sought to compel the production of books and papers which did not relate to Interstate Commerce although they might show a violation of the anti-trust law,10 and when the allegations in the petition as to the papers of which production was requested were so vague that the court could not see whether any of these were privileged communications between an attorney and client and what parts thereof were relevant to an investigation of Interstate Commerce. 11

The provision that the writ may issue notwithstanding a question of fact raised by the pleading is undetermined does not justify its issue when no case of unjust discrimination is shown to exist, although it does authorize the amount of compensation to be determined after the writ has been issued upon proper

terms. 12

8 457e. Mandamus against the executive and administrative officers of the United States. In general. The only courts which have original jurisdiction to issue the writ of mandamus against an officer of the United States in the absence of special statute,

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4 U. S. ex rel. Kansas City Southern Ry. Co. v. Interstate Commerce Commission, 252 U. S. 178.

5 U. S. ex rel. Stoney Coal Co. v. Louisville & N. R. Co., 195 Fed. 88.

6 U. S. ex rel. Green Briar Coal & Coke Co. v. Norfolk & Western Ry. Co., C. C. A., 143 Fed. 266 reversing 138 Fed. 849.

8 U. S. v. Union Stockyard & Transit Co., 192 Fed. 330.

9 Baltimore & Ohio R. R. Co. v. U. S. ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. ed. 292.

10 U. S. v. Louisville & N. Ry. Co., 212 Fed. 486.

7 U. S. ex rel. Friedman v. U. S. Express Co., 180 Fed. 1006.

11 Ibid.

12 U. S. ex rel. Morris v. Delaware L. & W. R. Co., 40 Fed. 101.

when the writ is not ancillary to other jurisdictional powers, and where neither a State nor an ambassador or other public minister, nor a consul or a vice-consul is a party, are the Supreme Court of the District of Columbia, and the Territorial and insular Courts.2

The District Court of the Canal Zone has power to issue the writ in a proper case. It may compel the auditor to issue a warrant in payment of a salary fixed by Congress for which there has been an appropriation. The District Court of Alaska may issue a mandamus to compel a commissioner of that Territory to proceed in a cause.5

A District Court has no jurisdiction to compel a post master by mandamus to transmit mail matter at a lower rate of postage than that charged, nor to compel a collector to examine into the facts as to the validity of a claim to a trade-mark affecting importations. It has been said that, although a District Court may have the power to grant the writ of mandamus at the application of a receiver in bankruptcy, it will not do so to compel a postmaster to transport the receiver's publications, when there is doubt as to their being mailable.8

A State court cannot issue a mandamus against an officer of the United States to compel the performance of a duty of his Federal office.

The writ was denied when sought to compel a commission with quasi-judicial functions to enroll an applicant as a member of an Indian tribe. 10

In a case where the application is not made by a person claim

$ 457e. 1 Kendall v. U. S., 12 Pet. 524, 9 L. ed. 1181; U. S. v. Schurz, 102 U. S. 378, 26 L. ed. 167. See U. S. v. Guthrie, 17 How. 284, 15 L. ed. 102; infra, $ 458.

2 Clough v. Curtis, 134 U. S. 361, 33 L. ed. 945. Specific power to issue the writ is granted to the District Courts of Porto Rico. Act of March 2, 1917, ch. 145, $ 48, Comp. St., $ 3803u.

3 Smith v. Jackson, C. C. A., 241 Fed. 747.

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ing a beneficial interest in sustaining or defeating a bill, no court should interfere by mandamus to correct the record of a legislative body 11 The Governor of a State cannot be compelled by mandamus to return a fugitive from labor or justice.12

The writ of mandamus issues to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act.13 There are cases in which the writ of mandamus will not be issued to compel the performance of even a purely ministerial act. “In a case, for instance, where the intention of the officer, though acting within the scope of his duty, had been frustrated by a clerical mistake." 14

8 458. Jurisdiction of the Supreme Court of the District of Columbia to issue a writ of mandamus to an officer of the United States. The Supreme Court of the District of Columbia has the power to issue the writ of mandamus, to an officer of the United States or other person within its territorial jurisdiction in cases in which the relator is by common law entitled to seek relief. The writ will not issue in a case where its effect would be to direct or control the head of an executive department in the exercise of judgment or discretion, even when in the exercise of his discretion the officer has been called upon to interpret several statutes of doubtful meaning and he has made an erroneous interpretation of these ; 2 but when the officer refuses to act

11 Clough v. Curtis, 134 U. S. 361, . Kendall v. Stokes, 3 How. 87, 11 L. 33 L. ed. 945..

ed. 506; Com'r of Patents v. White12 Kentucky v. Dennison, 24 How. ley, 4 Wall. 522, 18 L. ed. 335; 66, 16 L, ed. 717.

U. S. ex rel. Miller v. Black, 128 U. 13 U. S. ex rel. Boynton v. Blaine, S. 40, 50, 32 L. ed. 354, 358; U. S. 139 U. S. 306, 319, 35 L. ed. 183, ex rel. Redfield v. Windom, 137 U. 187; Brownsville v. Loague, 129 U. S. 636, 34 L. ed. 811; U. S. ex rel. S. 493, 501, 32 L. ed. 780, 783. Boynton v. Blaine, 139 U. S. 306,

14 U. S. ex rel. Redfield v. Win- 35 L. ed. 183; Roberts v. U. 8., 176 dom, 137 U. S. 636, 644, 34 L. ed. U. S. 221, 44 L. ed. 443; U. S. ex 811, 814, per Lamar, J., citing U. rel. Riverside Oil Co. v. Hitchcock, S. v. Schurz, 102 U. S. 378, 26 L. 190 U, S. 316, 47 L. ed. 1074. ed. 167.

2 Congress on March 3, 1837, $ 458. 19 St. at L. 253; U. S. V passed an act giving a pension to Schurz, 102 U. S. 378, 394, 26 L. the widow of any officer who had ed. 167, 171; Kendall y. U. S., 12 died in the naval service. On the Pet. 524, 9 L. ed. 1181; Decatur v. same day Congress passed a resolu. Paulding, 14 Pet. 497, 10 L. ed. 559; tion granting a pension to the widow


of Stephen Decatur for a certain Guthrie, 17 How. 284, 305, 15 L. period of time. Mrs. Decatur ap- ed. 102, 106. But upon a writ plied for and received her pension of error to the Supreme Court of under the general law, with a reser- the Territory of New Mexico it was ration of her rights under the resolu- held that in case of a disputed election, claiming the special pension tion to a municipal offiee, mandamus granted by that as well. The Secre- may issue to compel the recognition tary of the Navy, acting under the by another municipal officer of the opinion of the Attorney General, de- de facto officer, whose tit is discided that she could not have both. puted, until the rights of the parUpon her application for a manda- ties can be determined on quo war

to compel the Secretary to ranto. Re Delgado, 140 U. S. 586, grant her a special pension, the writ 590, 35 L. ed. 578, 580. Mitchell was denied. Decatur v. Paulding, 14 furnished material and performed Pet. 497, 515, 516, 10 L. ed. 559, labor for the United States under a 568, 569, per Taney, C. J. An appli- contract; and when the work was cation for a mandamus against the done and the materials furnished Secretary of the Navy, by a comman- he presented his account to the der in the navy of the Republic of proper office for adjustment and Texas, for pay alleged to be due settlement. The balance was found him from the United States since to be correct so far as the labor the annexation of Texas under the and material were concerned, but joint resolutions for annexation of it was also found that through penTexas, was denied.

Brashear v. alties and forfeitures that balance Mason, 6 How. 92, 12 L. ed. 357. So was liable to be materially reduced. was an application for the writ to It also appeared that Mitchell was compel the Secretary of the Navy indebted to contractors and others to accept the highest bid for a con- in a large amount for work done demned vessel. U. S. ex rel, Gold- and materials furnished under the berg v. Daniels, 231 U. S. 218. contract. The Treasury

officials An application for a mandamus agreed with Mitchell that this acto the Secretary of the Treasury to count should be adjusted, if he compel the payment of a salary to would consent that his said in. a Territorial judge for the unex- debtedness should be paid out of pired term of his office, from which the sums allowed, and that the conhe claimed that he had been im- trol of the money should not be givproperly removed by the President, en up until those claims were satwas denied. U. S. ex rel. Good- isfied. He assented, and a draft rich v. Guthrie, 17 How. 284, 303, was prepared accordingly. Mitchell 305, 15 L. ed. 102, 105, 106.

failed to satisfy the claims, and The writ of mandamus to the the assignee of his claim to the Secretary of the Treasury is not a draft applied for a mandamus to legal remedy to try the title of compel the Secretary of the Treasthe relator to an office claimed by ury to deliver the draft to him behim. U. S. ex rel. Goodrich v. fore he had made the agreed pay.

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ments; but the application was de- was required, an application for a nied. U. S. ex rel. Redfield v. Win- writ of mandamus will be refused. dom, 137 U. S. 636, 34 L. ed. 811. U. S. v. Commissioner, 5 Wall. 563,

The writ was denied when prayed 565, 18 L. ed. 692, 693; U. S. ex to compel the Secretary of the rel. Riverside Oil Co. v. Hitchcock, Treasury to collect a different rate 190 U. S. 316; U. S. ex rel. Alaska of duty upon a certain import from Smokeless Coal Co. v. Lane, 250 that which he had determined to U. S. 549. There the writ was be lawful. Louisiana v. McAdoo, sought to require the Secretary of 234 U. S. 627.

the Interior and the Commissioner An application for a mandamus to of the General Land Office to issue compel the Commissioner of Patents a patent which had been denied to refer an application for a re- because the Secretary had decided issue, which he had decided did not that work done was for prospecting come within the statute, to “the purposes and not for the purpose proper, examiner, or otherwise ex- of opening a mine. amine or cause the same to be ex- The writ will not issue to review amined according to law,” was de- the decision of the Secretary of nied. Com 'r of Patents v. Whiteley, the Interior as to the practice to 4 Wall. 522, 18 L. ed. 335. The be pursued in making applications writ was denied when asked to com- for land patents. U. S. ex rel. pel the Commissioner of Patents Ness v. Fisher, 223 U. S. 683, to declare an interference at the 56 L. ed. 610. Nor to require request of the junior applicant for the Secretary of the Interior to a patent. Ewing v. U. S., 244 U. S. approve the selection of land al1.

lotted to such tribe, by one who Neither an injunction will issue claimed to be an adopted member to prevent, nor a mandamus issue of the same, in a case where the Secto compel, the cancellation of an retary, was of the opinion that the entry in the 'Land Office under applicant had not been duly which a claim is made to lands. adopted. U. S. ex rel. West v. Gaines v. Thompson, 7 Wall. 347, Hitchcock, 205 U. 8. 80, 51 L. ed. 19 L. ed. 62. See also Sioux City 718. Nor to review his decision re& St. P. R. Co. v. U. S., 36 Fed. opening because of newly discov610, 612.

ered evidence or fraud a previous Where the Commissioner of the administrative order concerning the Land Office or the Secretary of succession to an Indian allotment the Interior has decided that a pat- while the property was still under ent should not issue, in a case liis administrative control. Lane where numerous questions of law l'. U. S., 241 U. S. 201. and fact arose, some of them de- Where the Secretary of the Inpending upon circumstances which terior had granted a land patent in rested upon parol proof, and where pursuance of an act of Congress, it the exercise of judicial functions, was held that the courts could not some of them of a high character, review his proceedings by manda

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