Gambar halaman

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

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

The Circuit Courts of Appeal have the power to issue writs of mandamus which are ancillary to cases over which they have appellate jurisdiction.46 Such a court has no power to compel a Circuit or District Court to take jurisdiction of a cause, 47 or to dismiss a case for want of jurisdiction.48

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; 49 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. 48 U. S. v. Severens (C. C. A.), 71

42 Starcke v. Klein (C. C. A.), 62 Fed. R. 768. Fed. R. 502. The proper remedy 49 18 St. at L. 333. seems to be a certiorari for a dimi. 50 17 St. at L. 509, § 4; U. S. v. U. P. nution of the record. See infra, R. Co., 2 Dill. 527; U. P. R. Co. v. Hall, S 365.

91 U. S. 343. It seems that the cor43 In re Morrison, 147 U. S. 1, 26. poration may be thus compelled to 44 In re Rice, 155 U. S. 396.

operate its telegraph lines by itself 45 In re Pennsylvania Co., 137 U.S. alone through its own corporate of451, 453.

ficers. Union Pac. Ry. Co. v. U. S., 59 46 26 St. at L 829; Smith v. Jack- Fed. R. 813, 833. son, 1 Paine, 453; The New England, 51 25 St. at L. 862, S 10. See U. S. 3 Sumn. 495; The Enterprise, 3 Wall. v. Delaware, L. & W. R. Co., 40 Fed. Jr. 58; Ex parte Hoyt, 13 Pet. 279. R, 101, 105.

47 U. S. ex rel. Mudsill Min. Co. v. 52 U. S. R. S., § 716; McIntire v. Swan (C. C. A.), 65 Fed. R. 647. 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

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.54 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. 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.56 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.57 When

Silliman, 6 Wheat. 598; Graham v. A. Tel. & T. Co., 47 Fed. R. 633; PeoNorton, 15 Wall. 427; Bath County ple v. Colorado C. R. Co., 42 Fed. R. v. Amy, 13 Wall. 244; County of 638, 640. Greene v. Daniel, 102 U. S. 187; 54 Riggs v. Johnson County, 6 Wall. Davenport v. County of Dodge, 105 166; Davies v. Corbin, 112 U. S. 36; U. S. 237; Louisiana v. Jumel, 107 Commissioners v. Aspinwall, 24 How. U. S. 711, 727; Gares v. N. W. Nat. 376; Supervisors v. U. S., 4 Wall. 435; Bldg., L. & I. Ass'n, 55 Fed. R. 209. Weber v. Lee County, 6 Wall. 210; An application to a United States Dis- U. S. v. New Orleans, 08 U. S. 381. trict Court by a receiver appointed But see Board of Com’rs of Grand in supplementary proceedings by a County v. King (C. C. A.), 54 Fed. R. State court, seeking a writ of man. 202. For a case where the county damus to require the clerk of the justices were imprisoned for conDistrict Court to pay a fund in the tempt because of their disobedience registry of that court to the receiver, to such a writ, see In re Copenhaver, is an original proceeding, and the 54 Fed. R. 660. court has no power to grant the writ. 55 U. S. v. Macon County, 99 U. S. In re Forsyth, 78 Fed. R. 296. Before 582; U. S. v. Labette County, 7 Fed. the Evarts Act of March 3, 1891, a R. 318; U. S. v. County of Clark, 95 Circuit Court could, as ancillary to a U. S. 769; Memphis v. U. S., 97 U.S. case of which it had appellate juris. 293; Brownsville v. Loague, 129 U. S. diction, issue a writ of mandamus to 493. Cf. Hicks v. Cleveland (C. C. A.), a District Court of the United States. 106 Fed. R. 459; Padgett v. Post (C. Smith v. Jackson, 1 Paine, 455; The C. A.), 106 Fed. R. 600; Little Rock New England, 3 Sumner, 495; The v. U. S. ex rel. Howard (C. C. A.), 103 Enterprise, 3 Wall. Jr. 58; Ex parte Fed. R. 418. Jesse Hoyt, 13 Pet. 279.

56 Galena v. Amy, 5 Wall. 705. 53 Indiana ex rel. Muncie v.L E. & 57 Wolff v. New Orleans, 103 U. S. W. R. Co., 85 Fed. R. 1. Contra, State 358; Von Hoffman v. Quincy, 4 Wall. ex rel. Postal Tel. Cable Co. v. Del. & 535.

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

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.64 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, and, when authorized by statute, a Territorial court.66 A State court cannot by injunction or otherwise interfere with the issue of a mandamus by a Federal court.6

58 Meriwether v. Garrett, 102 U. S. dan v. Cass County, 3 Dillon, 185; 472; Barkley v. Levee Com’rs, 93 U.S. Davenport v. County of Dodge, 105 258. But see U. S. v. Port of Mobile, U. S. 237. 12 Fed. R. 768. For the power of the 61 Hair v. Burnell, 106 Fed. R. 280. court to appoint a receiver in such a 62 U. S. v. Pearson, 24 Blatchf. 453. case, see supra, S 244.

63 In re Vintschger, 50 Fed. R. 459. 59 Rosenbaum v. Bauer, 120 U. S. 64 McClung v. Silliman, 6 Wheat. 450, and cases cited.

598. 60 Aylesworth v. Gratiot County, 43 65 Kendall v. U.S., 12 Pet. 524; U.S. Fed. R. 350, 352. “Where the plaintiff v. Schurz, 102 U. S. 378. See U. S. v. is otherwise entitled to relief in this Guthrie, 17 How. 284; infra, & 363a. court, he will not be debarred there- 66 Clough v. Curtis, 134 U. S. 361. It from by reason of the fact that his has been held that the District Court remedy in the State court upon the of Alaska may issue a mandamus to same cause of action would be of a compel a commissioner of that Terri. character which we are not entitled tory to proceed in a cause, Finn v. to administer here.” Ibid. See Jor- 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. 173.

§ 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;? but when the

damus should not issue to compel a the Secretary to grant her a special commission with quasi-judicial func- pension, the writ was denied. Decations to enroll an applicant as a mem- tur v. Paulding, 14 Pet. 497, 515, 516, ber of a tribe. Kimberlin v. Commis- per Taney, C. J. An application for sion to Five Indian Tribes (C. C. A.), a mandamus against the Secretary 104 Fed. R. 653.

of the Navy by a commander in the 8 363a. 19 St. at L. 253; U. S. v. navy of the Republic of Texas, for Schurz, 102 U. S. 378, 394; Kendall v. pay alleged to be due him from the U. S., 12 Pet. 524; Decatur v. Paul- United States since the annexa. ding, 14 Pet. 497; Kendall v. Stokes, tion of Texas under the joint resolu3 How. 87; Com'r of Patents v. White- tions for annexation of Texas, was ley, 4 Wall. 522; U. S. ex rel. Miller denied. Brashear v. Mason, 6 How. v. Black, 128 U. S. 40, 50; U. S. ex rel. 92. An application for a mandamus Redfield v. Windom, 137 U. S. 636; to the Secretary of the Treasury to U. S. ex rel. Boynton v. Blaine, 139 compel the payment of a salary to a U. S. 306; Roberts v. U. S., 176 U. S. Territorial judge for the unexpired 221.

term of his office, from which he 2 Congress on March 3, 1837, passed claimed that he had been improperly an act giving a pension to the widow removed by the President, was deof any officer who had died in the nied. U. S. ex rel. Goodrich v. Guthnaval service. On the same day rie, 17 How. 284, 303, 305. An appli. Congress passed a resolution grant- cation for a mandamus to compel ing a pension to the widow of Stephen the Commissioner of Patents to refer Decatur for a certain period of time. an application for a re-issue, which Mrs. Decatur applied for and re- he had decided did not come within ceived her pension under the gen. the statute, to “the proper examiner, eral law, with a reservation of her or otherwise examine or cause the rights under the resolution, claiming same to be examined according to the special pension granted by that law," was denied. Com'r of Patents as well. The Secretary of the Navy, v. Whiteley, 4 Wall. 522. Neither an acting under the opinion of the At- injunction will issue to prevent, nor torney-General, decided that she a mandamus issue to compel, the could not have both. Upon her ap- cancellation of an entry in the Land plication for a mandamus to compel Office under which a claim is made

officer refuses to act at all in a case where he is bound to act, 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

to lands. Gaines v. Thompson, 7 for work done and materials furWall. 317. See also Sioux City & St. nished under the contract. The P. R. Co. v. U. S., 36 Fed. R. 610, 612. Treasury officials agreed with Mitch

Where the Commissioner of the ell that this account should be adLand Office had decided that a pat- justed, if he would consent that his ent should not issue, in a case where said indebtedness should be paid out numerous questions of law and fact of the sum so allowed, and that the arose, some of them depending upon control of the money should not be circumstances which rested upon given up until those claims were satparol proof, and where the exercise isfied. He assented, and a draft was of judicial functions, some of them prepared accordingly. Mitchell failed of a high character, was required, to satisfy the claims, and the asan application for a writ of man- signee of his claim to the draft apdamus was refused. U. S. v. Com- plied for a mandamus to compel the missioner, 5 Wall. 563, 565. Where Secretary of the Treasury to deliver the Commissioner of Pensions had the draft to him before he had made decided upon an application for an the agreed payments, but the appliincrease of a pension, that the appli- cation was denied. U. S. ex rel. Redcant was not entitled to the same, field v. Windom, 137 U. S. 636. So and this decision was confirmed by where the Secretary of the Interior the Secretary of the Interior, as evi- had granted a land patent in pursudenced by his signature of the cer- ance of an act of Congress, it was tificate given to the pensioner, it was held that the courts could not reheld that no mandamus would issue view his proceedings by mandamus to compel an increase of the pen- upon the application of a claimant sion. U. S. ex rel. Dunlap v. Black, to the land who contended that the 128 U. S. 40, 48. Mitchell furnished statute was unconstitutional. In re material and performed labor for the Emblen, 161 U. S. 52. An applicaUnited States under a contract; and tion for a mandamus to compel the when the work was done and the Secretary of State to pay a certain materials furnished he presented his award under the Mexican Claims account to the proper officer for ad- Commission, under the act of June justment and settlement. The bal. 18, 1878, was denied. U. S. ex rel. ance was found to be correct so far Boynton v. Blaine, 139 U. S. 306. See as the labor and material were con- also U. S. ex rel. Angarica v. Baycerned, but it was also found that ard, 127 U. S. 251, 259; Frelinghuysen through penalties and forfeitures v. Key, 110 U. S. 63. The writ of that balance was liable to be ma- mandamus to the Secretary of the terially reduced. It also appeared Treasury is not a legal remedy to try that Mitchell was indebted to con- the title of the relator to an office tractors and others in a large amount claimed by him. U. S. ex rel. Good

3U. S. ex rel. Dunlap v. Black, 128 137 U. S. 636, 644; U. S. ex rel. BoynU. S. 40, 48; U. S. v. Schurz, 102 U. S. ton v. Blaine, 139 U. S. 306, 319; U. S. 378; U. S. ex rel. Redfield v. Windom, v. Lamar, 116 U. S. 423; infra, note 4.

« SebelumnyaLanjutkan »