pointed by the President as their successors, whose title they disputed," and to transmit a particular specified paper with the transcript of the record."2

43

It is not the office of a mandamus to direct a court to decide in a particular way the matter before it, even when there is no remedy by writ of error or appeal." As a general rule a writ of mandamus will not issue when there is any other adequate remedy for the relator.45

46

The Circuit Courts of Appeal have the power to issue writs of mandamus which are ancillary to cases over which they have appellate jurisdiction. Such a court has no power to compel a Circuit or District Court to take jurisdiction of a cause," or to dismiss a case for want of jurisdiction.“

49

The Circuit 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; and to compel the Union Pacific Railroad Company to operate its road as required by law.50 The Circuit and the District Courts of the United States have the power to issue a writ of mandamus to compel compliance with the provisions of the Interstate Commerce Act.51 Otherwise those courts have no power to issue a writ of mandamus, except when necessary for and ancillary to the exercise of their respective jurisdiction in another matter.52 A Circuit Court cannot by removal acquire

41 In re Parsons, 150 U. S. 150.

42 Starcke v. Klein (C. C. A.), 62 Fed. R. 502. The proper remedy seems to be a certiorari for a diminution of the record. See infra, § 365.

43 In re Morrison, 147 U. S. 1, 26. 44 In re Rice, 155 U. S. 396.

48 U. S. v. Severens (C. C. A.), 71 Fed. R. 768.

49 18 St. at L. 333.

50 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. It seems that the corporation may be thus compelled to operate its telegraph lines by itself

45 In re Pennsylvania Co., 137 U. S. alone through its own corporate of451, 453.

46 26 St. at L. 829; Smith v. Jack son, 1 Paine, 453; The New England, 3 Sumn. 495; The Enterprise, 3 Wall. Jr. 58; Ex parte Hoyt, 13 Pet. 279.

47 U. S. ex rel. Mudsill Min. Co. v. Swan (C. C. A.), 65 Fed. R. 647.

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

51 25 St. at L. 862, § 10. See U. S. v. Delaware, L. & W. R. Co., 40 Fed. R. 101, 105.

52 U. S. R. S., § 716; McIntire v. Wood, 7 Cranch, 504; McClung v.

jurisdiction to grant a mandamus in a case where it could not do so upon an application originally addressed to it.53

54

The most frequent instances in which writs of mandamus are issued by the Circuit Courts of the United States are to compel the levy of taxes by officers of municipal or other public corporations to satisfy judgments previously obtained in the courts which issue the writs. The writ will not issue to compel such an officer to perform a duty not imposed upon him by the law of the State under which he was appointed.55 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 after judgment to compel the levy of the tax. 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 made before the repeal. When

Silliman, 6 Wheat. 598; Graham v. Norton, 15 Wall. 427; Bath County v. Amy, 13 Wall. 244; County of Greene v. Daniel, 102 U. S. 187; Davenport v. County of Dodge, 105 U. S. 237; Louisiana v. Jumel, 107 U. S. 711, 727; Gares v. N. W. Nat. Bldg., L. & I. Ass'n, 55 Fed. R. 209. An application to a United States 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. In re Forsyth, 78 Fed. R. 296. 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.

53 Indiana ex rel. Muncie v .L. E. & W. R. Co., 85 Fed. R. 1. Contra, State ex rel. Postal Tel. Cable Co. v. Del. &

57

A. Tel. & T. Co., 47 Fed. R. 633; People v. Colorado C. R. Co., 42 Fed. R. 638, 640.

54 Riggs v. Johnson County, 6 Wall. 166; Davies v. Corbin. 112 U. S. 36; Commissioners v. Aspinwall, 24 How. 376; Supervisors v. U. S., 4 Wall. 435; Weber v. Lee County, 6 Wall. 210; U. S. v. New Orleans, 98 U. S. 381. But see Board of Com'rs of Grand County v. King (C. C. A.), 54 Fed. R. 202.

For a case where the county justices were imprisoned for contempt because of their disobedience to such a writ, see In re Copenhaver, 54 Fed. R. 660.

55 U. S. v. Macon County, 99 U. S. 582; U. S. v. Labette County, 7 Fed. R. 318; U. S. v. County of Clark, 95 U. S. 769; Memphis v. U. S., 97 U. S. 293; Brownsville v. Loague, 129 U.S. 493. Cf. Hicks v. Cleveland (C. C. A.), 106 Fed. R. 459; Padgett v. Post (C. C. A.), 106 Fed. R. 600; Little Rock v. U. S. ex rel. Howard (C. C. A.). 103 Fed. R. 418.

56 Galena v. Amy, 5 Wall. 705.

57 Wolff v. New Orleans, 103 U. S. 358; Von Hoffman v. Quincy, 4 Wall. 535.

the charter of the municipal corporation has been repealed and its corporate existence extinguished, no such mandamus can be granted.58 A mandamus to compel the levy of a tax cannot be issued until after a judgment has been obtained.59 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.60

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.61 A Circuit Court has no jurisdiction to compel a postmaster 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.63

64

62

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 only courts which have any original jurisdiction to issue such a writ against an officer of the United States, in the absence of special statute, and where neither a State, nor an ambassador or other public minister, nor a consul or vice-consul is a party, are the Supreme Court of the District of Columbia,65 and, when authorized by statute, a Territorial court. A State court cannot by injunction or otherwise interfere with the issue of a mandamus by a Federal court.67

58 Meriwether v. Garrett, 102 U. S. 472; Barkley v. Levee Com'rs, 93 U. S. 258. But see U. S. v. Port of Mobile, 12 Fed. R. 768. For the power of the court to appoint a receiver in such a case, see supra, § 244.

59 Rosenbaum v. Bauer, 120 U. S. 450, and cases cited.

60 Aylesworth v. Gratiot County, 43 Fed. R. 350, 352. "Where the plaintiff is otherwise entitled to relief in this court, he will not be debarred therefrom by reason of the fact that his remedy in the State court upon the same cause of action would be of a character which we are not entitled to administer here." Ibid. See Jor

dan v. Cass County, 3 Dillon, 185; Davenport v. County of Dodge, 105 U. S. 237.

61 Hair v. Burnell, 106 Fed. R. 280. 62 U. S. v. Pearson, 24 Blatchf. 453. 63 In re Vintschger. 50 Fed. R. 459. 64 McClung v. Silliman, 6 Wheat. 598.

65 Kendall v. U. S., 12 Pet. 524; U. S. v. Schurz, 102 U. S. 378. See U. S. v. Guthrie, 17 How. 284; infra, § 363a.

66 Clough v. Curtis, 134 U. S. 361. It has been held that the District Court of Alaska may issue a mandamus to compel a commissioner of that Territory to proceed in a cause, Finn v. Hoyt, 52 Fed. R. 83; and that man

67 U. S. v. King, 74 Fed. R. 493; Clapp v. Otoe County (C. C. A.), 104 Fed. R. 473.

§ 363a. 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, in cases in which the relator is by common law entitled to seek relief, to an officer of the United States or other person within its territorial jurisdiction. 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 the same; 2 but when the

officer refuses to act at all in a case where he is bound to act,3 or when by special statute or otherwise a purely ministerial duty, which he is bound to perform without question, is imposed upon a public officer, even the head of an executive de