CHAPTER 16. RELATIONS BETWEEN FEDERAL AND STATE COURTS AND OFFICERS, RELATIVE TO THE USE OF THE WRIT OF MANDAMUS. § 219. Federal courts can issue a mandamus to all state officers, except judicial officers, but state courts cannot to federal officers. 220. Mandamus in connection with the transfer of causes from the state to the federal courts. § 219. Federal courts can issue a mandamus to all state officers, except judicial officers, but state courts cannot to federal officers.- Owing to the peculiar relations between the United States government and the states, questions have often arisen concerning the right of the federal courts to issue the writ of mandamus to state courts and state officers, and of state courts to issue the writ to federal courts and federal officers. The laws of the United States are the supreme law of the land, and the states have no control over the federal officers, who can only be controlled by the power that created them; consequently a state court cannot issue a mandamus to a federal officer.1 Nor can the states restrain either the process or the proceedings of the national courts. The United States courts are invested with authority to decide causes in the same manner as the state courts are, and involving the rights and remedies of parties under state laws, and are allowed to use the same remedies as the state courts. They can therefore issue the writ of mandamus to state officers, so far as the federal congress has given them authority. They can issue the writ of mandamus to all state officers except 1 McClung v. Silliman, 6 Wheat. 598; Ladd v. Tudor, 3 W. & M. 325; Kendall v. United States, 12 Pet. 2 Riggs v. Johnson Co., 6 Wall. 166; United States v. Lee Co. (Sup'rs), 2 Biss. 77. judicial officers. The United States, owing to the complete independence of the states, can impose on a state officer, as such, no duty whatever and compel him to perform it. The state courts, being courts of general jurisdiction, may by mandamus require state courts or officers to discharge any duty whatever incumbent on them. They have required local officers to levy taxes to pay judgments obtained in the federal courts to pay to the judgment-creditor money collected on a tax levied to pay his judgment, though such judgment was obtained in a federal court, and to erase certain mortgages then on file in the recorder's office, in accordance with an order of a national district court, sitting in bankruptcy. A mandamus will not lie to a state judge to issue a subpoena requiring parties to appear and testify before the register and receiver of a federal land office. It would be an intrusion." 3 $220. Mandamus in connection with the transfer of causes from the state to the federal courts.- Congress has provided by its legislation that certain suits filed in the state courts may under certain circumstances be transferred to the federal courts, and that if such suits be wrongfully transferred to the federal courts, those courts shall remand them to the state courts for trial. In case either court shall fail in its duty, the question arises whether such duty is ministerial and subject to be enforced by the writ of mandamus. It is generally held that such duties are partly judicial, and that an appellate state court will not issue a mandamus to compel an inferior state court to transfer a cause to a federal court. The proper remedy is to appeal 1 Riggs v. Johnson Co., 6 Wall. 166. 66. State v. Curler, 4 Nev. 445; People v. Jackson Cir. Court (Judge), 2 Kentucky v. Denison, 65 U. S. 21 Mich. 577; Campbell v. Wallen, 3 State v. Beloit, 20 Wis. 79. Mart. & Yerg. 266; Francisco v. Manhattan I. Co., 36 Cal. 283; Hough v. Western T. Co., 1 Biss. 425; Orosco v. Gagliardo, 22 Cal. 83; Cromie, In re, 2 Biss. 160; Gordon v. Longest, 16 Pet. 97. Contra, Boom v. De Haven, 72 Cal. 280. Brown v. Crippen, 4 Hen. & M. 4 Brown v. Crego, 32 Iowa, 498. 5 Conrad v. Prieur, 5 Rob. 49; Diggs v. Prieur, 11 Rob. 54; Benjamin v. Prieur, 8 Rob. 193. from the final judgment to the state supreme court, and thence take a writ of error, if necessary, to the federal supreme court. To the United States circuit courts has not been given the power to issue a mandamus to compel such transfer.2 When a transfer has been granted to the federal court, a mandamus to the state court to proceed and try the case will be refused, because in making such transfer the court acted in a judicial capacity. It has, however, been held that an appeal may be taken from the order transferring the case, and that a mandamus may issue to compel the allowance of such appeal. An original mandamus proceeding cannot be transferred from a state to a federal court. It was held by a divided court that the circuit court was limited by statute to the issue of writs of mandamus in aid of a jurisdiction already acquired, and that the removal acts did not extend to mandamus proceedings, which were not civil actions in the sense in which those words were used in that statute. When a transfer to the federal court has been refused, but the defendant has filed the papers in the federal court, a mandamus will issue to compel the state court, upon its refusal, to proceed with the case, though the answer shows that a nonsuit was entered in the federal court against the plaintiff, and an injunction issued against his prosecuting a petition for a mandamus. Courts of last resort cannot be deprived of their power, to control the inferior state courts in the discharge of their duties, by the federal courts by injunction or other process against liti 5 173; State v. Fairfield C. Pleas, 15 Ohio St. 377. The last court holds that a mandamus to transfer the cause, after the rendition of a judgment, is not proper, but that a writ of error is then appropriate. Shelby v. Hoffman, 7 Ohio St. 450. 1 Hough v. Western T. Co., 1 Biss. 425; Cromie, In re, 2 Biss. 160; Gordon v. Longest, 16 Pet. 97; Francisco v. Manhattan I. Co., 36 Cal. 283; State v. Combination, etc. 2 Hough v. Western T. Co., 1 Biss. 425; Cromie, In re, 2 Biss. 160. Contra, Spraggins v. Humphries Co. Court, Cooke, 160. 3 Francisco v. Manhattan I. Co., 36 Cal. 283. 4 State v. Judge Thirteenth Dist., 23 La. An. 29. 5 Rosenbaum v. Bauer, 120 U. S. 450. that, in case the judges below should refuse to grant the judgment asked, then at the next term of court they should show cause why a mandamus should not issue to them to proceed to judgment. The court admitted that, strictly speaking, the relators were not entitled to the rule till after a default on the part of the respondents in the discharge of their duties.1 § 222. A demand must be made before the writ will issue. A demand must be made on the proper officer to perform the duty desired before a writ of mandamus will be issued to compel him to discharge such duty.? It would be an abuse of justice to convict one of non-feasance or misdemeanor in neglecting his official duty, when he has not refused to do what may be required, and to mulet him in costs when he is not in default. This writ only issues as a matter of necessity and when there is no other means of obtaining the discharge of the duty incumbent on the officer. Consequently this writ will not be issued to compel an officer to do an act which he has not been asked to do.1 The demand should be for the specific thing which ought to be done, untrammeled by any condition which may make the refusal qualified instead of absolute." § 223. A refusal to comply must be shown before the writ will issue. As a corollary of the statement in the prior section that a demand must first be made, it should be added that a refusal to comply with the demand must also be shown." A mandamus to make a county subscribe 1 Fish v. Weatherwax, 2 John. Cas. 215. 2State v. Davis, 17 Minn. 429; State v. Schaack, 28 Minn. 358; Kemerer v. State, 7 Neb. 130; Monroe Co. v. Lee Co., 36 Ark. 378; Com. v. Pittsburgh, 34 Pa. St. 496; Talcott v. Harbor Com'rs, 53 Cal. 199; State v. Gibbs, 13 Fla. 55. 4 People v. Hyde Park, 117 Ill. 462; Le Roux v. Judge, 45 Mich. 416. 5 Macoupin Co. Court v. People, 58 Ill. 191.* 6 Com. v. Pittsburgh, 34 Pa. St. 496; United States v. Boutwell, 17 Wall. 607; State v. Governor, 25 N. J. L. 331; Lewis v. Henley, 2 Ind. 332; Bryson v. Spaulding, 20 Kans. 427. for stock of a railroad company, as provided by law, was refused for failure of the company to produce its subscription books and ask the county to subscribe. Nothing short of an absolute refusal of a judge to sign a bill of exceptions will authorize the issuance of a mandamus to compel him to sign it. Where it is not clear that there has been a refusal, the writ will be denied. A corporator requested the privilege of inspecting the corporate books. The managing committee asked time to consider the request. This was not considered to be a sufficient refusal to warrant a mandamus. A county judge was asked to sign and seal a case for appeal. He made a suggestion on the subject and the applicant went off. This was no absolute refusal and did not justify a mandamus. The applicant should have declined the suggestion and insisted that he wanted the case, as there stated, signed and sealed.' 1 § 224. When personal demand is unnecessary.- When it is said that a demand to do the act and a refusal thereof must exist prior to an application for a mandamus to compel the performance of the act desired, it must not be considered that such demand must in all cases be personal, or that such refusal must always be of the same nature. When the duty sought to be enforced is of a private nature, affecting only the right of the relator, a personal demand is necessary; and it is also necessary, if the duty sought to be enforced is of such a character that it could not be expected to be performed till demanded. Decisions, that there must be an express and distinct demand or request to perform, must be confined to such cases. Where, however, the duty is of a purely public nature, wherein no in 1 Oroville, etc. R. R. v. Plumas Co., 37 Cal. 354. 2 State v. Redd, 68 Mo. 106. 3 King v. Wilts, etc. Navigation (Prop'rs), 3 Ad. & E. 477. 4 Irving v. Askew, 20 L. T. R. (N. S.) 584. 5 People v. Education Board, 127 Ill. 613; People v. Mount Morris (Town) (Ill., May 11, 1891), 27 N. E. Rep. 757; Ingerman v. State. (Ind., May 1, 1891), 27 N. E. Rep. 499. 6 Humboldt Co. v. Churchill Co. (Com'rs), 6 Nev. 30. 7 United States v. Boutwell, 17 Wall. 607; Price v. Riverside, etc. Co., 56 Cal. 431. |