been condemned for public use." The word " This construction is supposed to be strengthened by the act of 1809, which again empowers the Corporation" to lay out, open, extend, and regulate streets, lanes and allies," but confines the use of the jury for assessing damages to those sustained "by reason of opening or extending any street, lane or alley." The opinion that the original power continues after its first exercise, renders it unnecessary to decide on the extent which may and ought to be given to the word "regulate.” 2. The second point presents a question of some difficulty. One object of the ordinance probably was, to give as much validity to the graduation made by the commissioners, as if it had been måde under the direct superintendance of the corporate body. But it cannot be disguised, that a promise is held forth to all who should build on the graduated streets, that the graduation should be unalterable. The Court, however, feels great difficulty in saying, that this ordinance can operate as a perpetual restraint on the Corporation. When a government enters into a contract, there is no doubt of its power to bind itself to any extent not prohibited by its constitution. A Corporation can make such contracts only as are allowed by the acts of incorporation. The power of this body to make 1821. Goszler V. The Corporation of Georgetown. 1821. M'Clung V. Silliman. a contract which should so operate as to bind its legislative capacities forever thereafter, and disable it from enacting a by-law, which the Legislature enables it to enact, may well be questioned. We rather think that the Corporation cannot abridge its own legislative power. Decree affirmed. March 12th. March 16th. (CONSTITUTIONAL LAW.) M'CLUNG V. SILLIMAN. A State Court cannot issue a mandamus to an officer of the United THIS cause was argued by Mr. Harper, for the plaintiff in error, and by Mr. Doddridge, for the defendant. Mr. Justice JOHNSON delivered the opinion of the Court. This case presents no ordinary group of legal questions. They exhibit a striking specimen of the involutions which ingenuity may cast about legal rights, and an instance of the growing pretensions of some of the State Courts over the exercise of the powers of the general government. The plaintiff in error, who was also the plaintiff below, supposes himself entitled to a pre-emptive interest in a tract of land in the State of Ohio, and claims of the register of the land office of the United States, the legal acts and documents upon which such rights are initiated. That officer refuses, under the idea, that the right is already legally vested in another; and that he possesses, himself, no power over the subject in controversy. A mandamus is then moved for in the Circuit Court of the United States, and that Court decides, that Congress has vested it with no such controlling power over the acts of the ministerial officers in the given case. The same application is then preferred to the State. Court for the county in which the subject in controversy is situated. The State Court sustains its own jurisdiction over the register of the land office, but on a view of the merits of the claim, dismisses the motion. From both these decisions appeals are made to this Court, in form of a writ of error. In the case of M'Intire v. Wood," decided in this Court, in 1813, the mandamus contended for was intended to perfect the same claim, and in point of fact the suit was between the same parties. The influence of that decision on these cases, is resisted, on the ground, that it did not appear in that case, that the controversy was between parties who, under the description of person, were entitled to maintain suits in the Courts of the United States; whereas, the averments in the present cases show, that the parties litigant are citizens of different States, and, a 1 Cranch, 504. 1821. McClung Silliman. 1821. McClung V. Silliman. therefore, competent parties in the Circuit Court. But we think it perfectly clear, from an examination of the decision alluded to, that it was wholly uninfluenced by any considerations drawn from the want of personal attributes of the parties. The case came up on a division of opinion, and the single question stated is, "whether that Court had power to issue a writ of mandamus to the register of a land office in Ohio, commanding him to issue a final certificate of purchase to the plaintiff for certain lands in the State ?" Both the argument of counsel, and the opinion of the Court, distinctly show, that the power to issue the mandamus in that case, was contended for as incident to the judicial powers of the United States. And the reply of the Court is, that though, argumenti gratia, it be admitted, that this controlling power over its ministerial officers, would follow from vesting in its Courts the whole judicial power of the United States, the argument fails here, since the legislature has only made a partial delegation of its judicial powers to the Circuit Courts; that if the inference be admitted as far as the judicial power of the Court actually extends, still, cases arising under the laws of the United States, are not, per se, among the cases comprised within the jurisdiction of the Circuit Court, under the provisions of the 11th section; jurisdiction being in such cases reserved to the Supreme Court, under the 25th section, by way of appeal from the decisions of the State Courts. There is, then, no just inference to be drawn from the decision in the case of M'Intire v. Wood, in fa vour of a case in which the Circuit Courts of the United States are vested with jurisdiction under the 11th section. The idea is in opposition to the express words of the Court, in response to the question stated, which are, "that the Circuit Court did not possess the power to issue the mandamus moved for." It is now contended, that as the parties to this controversy are competent to sue under the 11th section, being citizens of different States, that this is a case within the provisions of the 14th section, and the Circuit Court was vested with power to issue this writ, under the description of a "writ not specially provided for by statute," but "necessary for the exercise of its jurisdiction." The case certainly does present one of those instances of equivocal language, in which the proposition, though true in the abstract, is in its application to the subject glaringly incorrect. It cannot be denied, that the exercise of this power is necessary to the exercise of jurisdiction in the Court below; but why is it necessary? Not because that Court possesses jurisdiction, but because it does not possess it. It must exercise this power, and compel the emanation of the legal document, or the execution of the legal act by the register of the land office, or the party cannot sue. The 14th section of the act under consideration, could only have been intended to vest the power now contended for, in cases where the jurisdiction already exists, and not where it is to be courted or 1821. McClung V.. Silliman. |