Court will not interfere to correct an error in the decision,5 even upon a question as to the validity of a statute. The Supreme Court has no power to issue a writ of prohibition in any other case, except when necessary for the exercise of its jurisdiction in some matter before it; or possibly when an application is made by a State, public minister, or consul.8

It is uncertain whether the power of the Circuit Courts of Appeals to issue writs of prohibition extends to any cases except those in which its exercise is necessary for the efficient administration of the particular jurisdiction with which they are invested.9

No Circuit or District Court of the United States has the power to issue a writ of prohibition except when necessary for the exercise of its jurisdiction in some matter previously before it.10

It seems that the Supreme Court of the District of Columbia has the power to issue writs of prohibition directed to inferior courts and to public boards and officers acting in a given judicial capacity within its territorial jurisdiction." It is doubtful whether any court has the power to issue a writ of prohibition against a court-martial.12 Where the court against which the writ is sought has clearly no jurisdiction of the suit or prosecution issued before it originally nor of some collateral matter arising therein, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, the writ of prohibition should issue,13 and a refusal to grant the writ, where all the proceedings appear of record, may be re

5 Ex parte Gordon, 105 U. S. 515; Ex parte Hagar, 104 U. S. 520; Ex parte Pennsylvania, 109 U. S. 174; In re Fassett, 141 U. S. 479, 484; In re Engles, 146 U. S. 357; In re Morrison, 147 U. S. 14.

10 U. S. R. S., § 716; Re Bininger, 7 Blatchf. 159.

11 See argument of Messrs. Jeff. Chandler and Eppa Houston, in Smith v. Whitney, 116 U.S. 167, 173; Act of Feb. 27, 1827, ch. 69, § 2 (19

6 Ex parte Pennsylvania, 109 U. S. St. at L. 253); U. S. v. Schurz, 102

174.

7 Ex parte Gordon, 1 Black, 503; In re Christy, 3 How. 292; Ex parte Warmouth, 17 Wall. 64; Ex parte Graham, 10 Wall. 541.

8 In re Baiz, 135 U. S. 403.

U. S. 378; Price v. State, 8 Gill (Md.), 295, 310.

12 Smith v. Whitney, 116 U. S. 167, 175: U. S. v. Maney, 61 Fed. R. 140.

13 In re Rice, 155 U. S. 396; In re N. Y. & Porto Rico S. S. Co., 155

9 U. S. v. Williams (C. C. A.), 67 U. S. 523. Fed. R. 384.

viewed by a writ of error.14 But where there is another remedy, by appeal or otherwise, or where the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the grant or refusal of the writ is discretionary; and it is not obligatory where the case has gone to sentence and the want of jurisdiction does not appear upon the face of the proceedings.15

The usual practice is, upon an application in the name of the United States on the relation of the party aggrieved, for the court to grant a rule to the judge sought to be prohibited, to show cause why the writ should not issue, and to accompany the rule with an order that he proceed no further in the case till the decision of the Supreme Court in the premises.16 It has been said that when the suit complained of is brought by a private person he may be joined as a defendant; but that when it is a suit or prosecution on behalf of the government the writ of prohibition can go to the court only." The proceedings of a court-martial cannot be prohibited by such a writ addressed to an officer who ordered the court-martial to convene, but is not himself a member of it.18 The application for the writ should be supported by an affidavit where the motion for the writ of prohibition is founded upon matter not appearing upon the face of the proceeding below.19 It is the duty of the respondent to produce any evidence that exists to countervail the petitioner's proof of such new matter.20

The writ of prohibition cannot be used to correct errors of a court in deciding matters of law or fact within its jurisdiction, or to undo what has been done.22 21 "The only effect of the writ is to suspend all action, and to prevent any further proceeding in the prohibited direction." 23

14 Smith v. Whitney, 116 U. S. 167, 173.

15 In re Rice, 155 U. S. 396; In re N. Y. & Porto Rico S. S. Co., 155 U. S. 523; In re Cooper, 143 U. S. 472, 495; Am. Construction Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 379. 16 U. S. v. Hoffman, 4 Wall. 158. 17 Smith v. Whitney, 116 U. S. 167, 176, per Gray, J.

18 Ibid.

19 In re Baiz, 135 U. S. 403, 430, per Fuller, C. J. 20 Ibid.

21 Smith v. Whitney, 116 U. S. 167, 176.

22 U. S. v. Hoffman, 4 Wall. 158. 23 Ibid.

§ 363. Mandamus.- The writ of mandamus is a command issuing in the name of the United States directed to a person, corporation, or inferior court within its jurisdiction, requiring it so do some particular thing therein specified, which pertains to its office or duty, and which the court issuing the writ determines to be its duty.1

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 The Constitution prohibits the grant to that court of any further original jurisdiction to issue writs of mandamus to officers of the United States. The constitutionality of the grant to the Supreme Court of power to issue writs of mandamus to other courts of the United States has been upheld on the ground that such a writ is in the nature of appellate jurisdiction.5

4

A mandamus will issue to compel a court to exercise its discretion in one way or another." A mandamus will issue to compel a court to proceed in a case which it has dismissed for want of jurisdiction, when the record before the lower court showed its jurisdiction, and there is no review by appeal or writ of error; but not when through mistake a paper showing the jurisdiction was not in the record and before the court. After a case has proceeded to the filing of a declaration and a plea to the jurisdiction, or its equivalent, and judgment in favor of the plea and for a dismissal of the action, the plaintiff

§ 363. Ex parte Crane, 5 Pet. 189, parte Parker, 120 U. S. 737; In re 190. Hohorst, 150 U. S. 653.

2 U. S. R. S., § 688; In re Green, 141 U.S. 325.

3 U. S. R. S., § 688. See Kentucky v. Dennison, 23 How. 266; Virginia v. Rives, 100 U. S. 313, 316; In re Baiz, 135 U. S. 403; Virginia v. Paul, 148 U. S. 107.

7 Insurance Co. v. Comstock, 16 Wall. 258; Railroad Co. v. Wiswall, 23 Wall. 507; Hoadley v. San Francisco, 94 U. S. 4; Ex parte Schollenberger, 96 U. S. 359; Ex parte Railway Co., 103 U. S. 794; Ex parte Baltimore & O. R. Co., 108 U. S. 566;

4 Marbury v. Madison, 1 Cranch, Hollon Parker, Petitioner, 131 U. S. 137.

5 Ex parte Crane, 5 Pet. 189, 190. 6 Ex parte Crane, 5 Pet. 189, 190; Ex parte Morgan, 114 U. S. 174; Ex

221. But see In re Burdett, 127 U. S. 771; In re Pennsylvania Co., 137 U. S. 451, 453.

8 In re Sherman, 124 U. S. 364.

12

is confined to his remedy by writ of error, and cannot by mandamus compel the inferior court to take jurisdiction of his case. The writ of mandamus has been granted to compel a District Judge of the United States to order the marshal to deliver to the county jailer certain prisoners convicted under indictments, or other criminal proceedings, illegally removed to the Circuit Court of the United States; 10 to compel the allowance of an appeal," provided the applicant was a party to the suit; 1 to compel a judge to settle a bill of exceptions and to sign the same after it had been settled by him,13 but not to sign a bill of exceptions which he considered did not state correctly the proceedings before him;1 to compel a court to proceed in a suit which it had improperly stayed; 15 to take jurisdiction of a writ of scire facias which it had improperly quashed; 16 to compel a court to proceed to judgment," and when the act of signing the judgment was purely ministerial, to sign the same; 18 to execute a judgment it had rendered; to execute a previous mandate of the Supreme Court; 20 and to compel the reinstatement in a court of the United States or of the District of Columbia of an attorney who had been disbarred, in a case of which the court had no jurisdiction or acted with flagrant impropriety."1

9 Ex parte Baltimore & O. R. Co., 108 U. S. 566; Ex parte Railway Co., 103 U. S. 794; In re Pennsylvania Co., 137 U. S. 451, 453.

10 Virginia v. Rives, 100 U. S. 313, 323, 329; Virginia v. Paul, 148 U. S. 107.

11 Ex parte Jordan, 94 U. S. 248; Ex parte Railroad Co., 95 U. S. 221; Vigo's Case, 21 Wall. 648. But it was said that the writ may be denied where the order appealed from was wholly discretionary, or where the discretion was properly exercised. Lewis v. Baltimore & L. R. Co. (C. C. A.), 62 Fed. R. 218.

12 Ex parte Cutting, 94 U. S. 14. 13 Chateaugay O. & I. Co., Petitioner, 128 U. S. 544. See Ex parte Crane, 5 Pet. 189, 190.

14 Ex parte Bradstreet, 4 Pet. 102. 15 Livingston v. Dorgenois, 7

19

Cranch, 577. But see Ex parte Bradstreet, 8 Pet. 588.

16 In re Connaway, 178 U. S. 421.

17 Life & Fire Ins. Co. v. Wilson, 8 Pet. 291; Life & Fire Ins. Co. v. Adams, 9 Pet. 571.

18 Ex parte Bradstreet, 6 Pet. 774; Life & Fire Ins. Co. v. Wilson, 8 Pet. 291; Ex parte Many, 14 How. 24. But see Ex parte Morgan, 114 U. S. 178.

19 U. S. v. Peters, 5 Cranch, 115; Stafford v. Union Bank, 16 How. 135.

20 White v. U. S., 1 Black, 501; U. S. v. Fossatt, 21 How. 445; Ex parte Dubuque & P. R. Co., 1 Wall. 69; In re Washington & G. R. Co., 140 U. S. 91; infra, § 495. But see Ex parte Railway Co., 101 U. S. 711; In re Humeson, 149 U. S. 192.

21 Ex parte Bradley, 7 Wall. 364; Ex parte Robinson, 19 Wall. 506. But see Ex parte Burr, 9 Wheat. 529; Ex

A mandamus will not be issued when there is any other appropriate relief," as, for example, by writ of error or appeal,23 nor to control the exercise of discretion," except, possibly, in case of a very flagrant abuse of discretion.25 The writ of mandamus has been denied when asked to compel a court to allow or refuse an amendment of a pleading," to order the withdrawal of a plea," to allow the filing of double pleas,28 at the application of a private individual to remand a civil case after a motion for a remand had been denied by the Circuit Court,29 to retain jurisdiction of a case which had been remanded to the State court since the act of March 3, 1887,30 to vacate interlocutory orders which do not terminate the suit," to vacate a preliminary injunction, to vacate an order setting aside a nonsuit, to open a default," to quash a writ of execution, to admit a prisoner to bail, to diminish the amount of bail required for a prisoner's discharge," to approve a bond, to grant a rehearing," to receive further proofs on an appeal in admiralty, to vacate an order directing a district attorney and a marshal to deliver the official books of record to persons ap

33

32

36

parte Secombe, 19 How. 9; Ex parte Wall, 107 U. S. 265; In re Green, 141 U. S. 325.

22 Bank of Columbia v. Sweeny, 1 Pet. 567; U. S. v. Addison, 22 How. 174; Ex parte Newman, 14 Wall. 152; In re Morrison, 147 U. S. 14, 26.

23 Ex parte Newman, 14 Wall. 152; Ex parte Baltimore & O. R. Co., 108 U. S. 566; Ex parte Brown, 116 U. S. 401; Connecticut Mut. L. Ins. Co., Petitioner, 131 U. S. App. clxxxi; In re Morrison, 147 U. S. 14, 26; Am. Constr. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 379.

24 Ex parte Railway Co., 101 U. S. 711; Ex parte Roberts, 6 Pet. 216; Ex parte Davenport, 6 Pet. 661; Ex parte Bradstreet, 7 Pet. 634; Ex parte Bradstreet, 4 Pet. 182; Ex parte Bradstreet, 8 Pet. 588; Ex parte Milwaukee R. Co., 5 Wall. 188; Life & Fire Ins. Co. v. Wilson, 8 Pet. 291. 25 Ex parte Bradley, 7 Wall. 364. 26 Ex parte Bradstreet, 7 Pet. 634. 27 Ex parte Sweeny, 1 Pet. 567.

38

28 Ex parte Davenport, 6 Pet. 661. 29 Ex parte Hoard, 105 U. S. 578; Ex parte Dancel, 181 U. S. -. But see In re Baiz, 135 U. S. 403; Virginia v. Rives, 100 U. S. 313, 316; Virginia v. Paul, 148 U. S. 107.

30 In re Pennsylvania Co., 137 U. S. 451, 453.

31 Ex parte Hoyt, 13 Pet. 279; Ex parte Whitney, 13 Pet. 404; Gain v. Relf, 15 Pet. 9; Ex parte Perry, 102 U. S. 183; Ex parte Schwab, 98 U. S. 240; Am. Constr. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 379. 32 Ex parte Schwab, 98 U. S. 240. 33 Ex parte Loring, 94 U. S. 418. 34 Ex parte Roberts, 6 Pet. 216. 35 U. S. ex rel. Harless v. Judges (C. C. A.), 85 Fed. R. 178.

36 Ex parte Flippin, 94 U. S. 348. 37 Ex parte Taylor, 14 How. 3. 38 Ex parte Milwaukee R. Co., 5 Wall. 188.

39 U. S. v. Bullock, 6 Pet. 485, note. 40 In re Hawkins, 147 U. S. 486.