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States can issue the writ of mandamus directed to the former court except in aid of a proceeding instituted before the issue of such mandate.8

The cases in which the Supreme Court has granted and those in which it has denied, applications for the writ of mandamus, are previously discussed.9

§ 457b. Jurisdiction of the Circuit Courts of Appeals to issue writs of mandamus. The jurisdiction of the Circuit Court of Appeals to issue writs of mandamus exists only in cases where the relief is necessary to the complete exercise of their appellate jurisdiction. The writ may issue from a Circuit Court of Appeals in a proper case to compel action by the Court below which is required for the exercise of its functions by the court of review after the issue of the writ of error or the allowance of an appeal,2 or where the District Court is proceeding contrary to the mandate of the Circuit Court of Appeals, or refuses to proceed in a suit pending below so that the appellate jurisdiction of the Circuit Court of Appeals may be defeated, 4 or has improperly set aside an appealable decree.5

A Circuit Court of Appeals has no power to issue such a writ to control proceedings in a case which could not be brought before it by appeal of writ of error after final decree of judgment.6

8 Er parte Wagner, 249 U. S. 465. 9 See $ 457 supra.

$ 457b. 1 Muir v. Chatfield, C. C. A., 255 Fed. 24. 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, 10 L. ed. 161.

2 Ibid; supra, $ 457.

3 Ex parte Chicago Title & Trust Co., C. C. A., 146 Fed. 742; Re Beckwith, C. C. A., 203 Fed. 45; A. D. Howe Mach. Co. v. Dayton, C. C. A., 210 Fed. 801, supra, $ 457.

4 McKlennan v. Carland, 217 U. S. 268, 54 L. ed. 762; Barber Asphalt Pav. Co. v. Morris, C. C. A., 132 Fed. 945; Re Robert Gair Co., 196 Fed. 492; Re Watts, C. C. A., 214 Fed. 80; Ex parte Equitable Trust Co., C. C. A., 231 Fed. 577, 585, 594.

5 Re Dennit, C. C. A., 215 Fed. 673, supra, $ 457.

6 U. S. ex rel. Mudsill Min. Co. v. Swan, C. C. A., 65 Fed. 647; U. S. v. Severens, C. C. A., 71 Fed. 768; Collin County Nat. Bank of McKinney, Tex. v. Hughes, C. C. A., 152 Fed. 414; Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524; U. S. v. Sessions, C. C. A., 205 Fed. 502; Muir v. Chatfield, C. C. A., 255. Fed. 24.

Such a court has no power to compel a District Court to take original jurisdiction of a cause, or to set aside an order remanding a case removed from a State court, or to refuse to discharge a vessel seized in admiralty unless the owner gives a bond,' or to dismiss a case for want of jurisdiction as a Federal court,1 when the jurisdictional question is Federal in its nature; but it has been said that it may do so when the jurisdiction is disputed upon other grounds; 11 and it may compel a District Court to proceed in a case which the latter has stayed under the belief that it has no jurisdiction thereof.12

$ 457c. Jurisdiction of the District Courts to issue writs of mandamus. Except when specifically authorized by statute a District Court of the United States has no power to issue a writ of mandamus which is not necessary for, or ancillary to, the exercise of its jurisdiction in another matter; even when the relief sought concerns a right secured by the Constitution of the United States.

177;

7 U. S. ex rel. Mudsill Min. Co. v. Swan, C. C. A., 65 Fed. 647; Collin County Nat. Bank of McKinney, Tex. v. Hughes, C. C. A., 152 Fed. 414; Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524.

8 U. S. v. Sessions, C. C. A., 205 Fed. 502.

9 Muir v. Chatfield, C. C. A., 255 Fed. 24.

10 U. S. v. Severens, C. C. A., 71 Fed. 768. See New Liverpool Salt Co. v. Wellborn, C. C. A., 160 Fed. 923; Hammond Lumber Co. v. U. S. District Court, 0. C. A., 240 Fed. 924.

11 Dowagiac Mfg. Co. v. McSherry Mfg. Co., C. C. A., 155 Fed. 524.

12 McClellan v. Carland, 217 U. S. 268, 54 L. ed. 762.

$ 457c. 1 U. S. R. S., $ 716; McIntire v. Wood, 7 Cranch, 504, 3 L. ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. ed. 340; Graham

v. Norton, 15 Wall. 427, 21 L. ed.

Bath County v. Amy, 13 Wall. 244, 20 L. ed. 539; County of Greene v. Daniel, 102 U. S. 187, 26 L. ed. 99; Davenport v. County of Dodge, 105 U. S. 237, 26 L. ed. 1018; Louisiana v. Jumel, 107 U, S. 711, 727, 27 L, ed. 448, 453; Gares v. N. W. Nat. Bldg., L. & I. Ass'n, 55 Fed. 209; Knapp v. Lake Shore & Michigan Southern Ry. Co., 197 U. S. 536, 49 L. ed. 870; Covington & C. Br. Co. v. Hager, 203 U. S. 109, 51 L. ed. 111. But see Frank v. "Butler County, C. C. A., 139 Fed. 119; U. S., Butterworth & Lowe v. Sessions, C. C. A., 205 Fed. 502; Evans v. Yost, C. C. A., 255 Fed. 726; U. S. v. Nashville, C. & St. L. Ry., 217 Fed. 254.

2 Covington & C. Br. Co. v. Hager, 203 U. S. 109, 51 L. ed. 111. But it has been held that the writ may issue to compel a State Board of Equalization, with the exception

A District Court cannot by removal acquire jurisdiction to grant a maridamus in a case where it could not do so upon an application originally addressed to it; 8 but where the relief sought was a direction that a street railway company operate its cars in accordance with the conditions of its franchise, a removal was permitted. The fact that a District Court of the United States has no jurisdiction of an original proceeding by mandamus to compel municipal officers to levy a tax to pay bonds does not affect its jurisdiction of an action at law by a citizen of another State to recover judgment on such bonds, although any judgment recovered can be enforced only by mandamus. An application to a 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. The writ will not issue to compel a United States marshal to restore to office a deputy marshal whom he has removed ; 7 but it has been said that it may compel a post-master to forward to the first assistant postmaster general a letter carrier's application for re-instatement.

The District 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; 9 and to compel the Union Pacific Railroad Company to operate its road as required by law.10

of the Governor, to equalize taxes. Huidekoper v. Hadley, C. C, A., 177 Fed. 1.

3 Indiana ex rel. Munice v. L. E. & W. R. Co., 85 Fed. 1. Contra, State ex rel. Postal Tel. Cable Co. v. Del. & A. Tel. & T. Co., 47 Fed. 633; People v. Colorado C. R. Co., 42 Fed. 638, 640.

4 State v. Tacoma Ry. & Power Co., 244 Fed. 989.

3 Waite v. City of Santa Cruz, 89 Fed. 619.

6 Re Forsyth, 78 Fed. 296.

7 U. S. v. Lapp, C. C. A., 244 Fed. 377.

8 U. S. v. Postmaster of City of Buffalo, 221 Fed. 689.

918 St. at L. 333.

10 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, 23 L. ed. 428. It seems that the corporation may be thus compelled to operate its telegraph lines by itself alone through its own corporate officers.

11

The District Courts of the United States have jurisdiction to compel the compliance, by railway companies and other common carriers, with the provision of the Interstate Commerce 'Laws; but not unless the matter in question has first been submitted to the Interstate Commerce Commission 12 Such a court has not jurisdiction to compel the Interstate Commerce Commission to entertain a complaint which the Commission has dismissed under the belief that it is beyond its jurisdiction.18 Such a writ may be issued by the Supreme Court of the District of Columbia.14 It was held that the Circuit Court of the United States for the Southern District of New York had the power to grant the writ to compel the Board of General Appraisers to examine and decide a case, of which it had jurisdiction under the Customs Administrative Act.15

The District Courts have jurisdiction upon the application of the Attorney General to issue writs of mandamus commanding any persons or corporations to comply with the provisions of the act creating the Federal Trade Commission. 16

The writ was denied when access was sought to the books and papers of a corporation not engaged in interstate or foreign commerce nor charged with unfair competition; when the purpose was to obtain information for the Navy Department of the cost of manufacturing of a patented article under a secret process. 17

The most frequent instances in which writs of mandamus are issued by the District Courts of the United States are to compel

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

11 Jud. Code, $ 207, 36 St. at L. 1087. See 88 75, 151, supra, 25 St. at L. 862, 88 6, 10, 23, as amended by Act of June 29, 1906, ch. 3591, 34 St. at L. 585. See supra, 8 77d, infra, 8 457d.

18 Baltimore & Ohio R. R. Co. v. U. S. ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. ed. 292; U. S. v. Louisville & N. R. R. Co., 236 U. S. 318, 337.

18 Interstate Commerce Commis. sion v. U. S. ex rel. Humboldt Steamship Co., 224 U. S. 474, 56 L. ed. 849.

14 Ibid, infra, $ 458.

18 26 St. at L. 137. Thomas Prosser & Son v. United States, C. C. A., 158 Fed. 971.

16 Act of Sept. 26, 1914, ch. 311, $ 9, 38 St. at L. 721, Comp. St., $ 883, supra, 8 77h.

17 U. S. v. Basic Products Co., 260 Fed. 472.

the levy of taxes by officers of municipal or other public corporations to satisfy judgments previously obtained in the courts which issue the writs.18 When so employed, the writ is considered not to be a suit, but simply process in aid of execution.19 Where judgments rendered on certain railroad aid bonds issued by a township contained orders making it the duty of the county commissioners of the county in which the township was located to levy annually a necessary tax to collect the interest on the bonds, but such judgments did not direct the clerk to issue writs of mandamus thereafter if defaults should occur in the levy of the tax; it was held that they did not contain process within themselves for their own enforcement, so that, on the board's default, it was necessary for the owner of the judgments to obtain orders of the court to compel performance.20 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.21 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.

1.22 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

V.

18 Riggs v. Johnson County, 6 Wall. 166, 18 L. ed. 768; Davies v. Corbin, 112 U. S. 36, 28 L. ed. 627; Commissioners Aspinwall, 24 How. 376, 16 L. ed. 735; Supervisors v. U. S., 4 Wall. 435, 18 L. ed. 419; Weber v. Lee County, 6 Wall. 210, 18 L. ed. 781; U. S. v. New Orleans, 98 U. S. 381, 25 L. ed. 225; Tucker v. Hubbert, C. C. A., 196 Fed. 849. But see Board of Com 'rs of Grand County v. King, C. C. A., 54 Fed. 202. For a case where the county justices were imprisoned for contempt because of their disobedience to such a writ see Re Copenhaver, 54 Fed. 660.

19 Thompson v. Perris Irr. Dist., 116 Fed. 769.

20 Board of Com ’rs of Hertford County, N. C. v. Tome, C. C. A., 153 Fed. 81.

21 Aylesworth v. Gratiot County, 43 Fed. 350, 352. «« Where the plaintiff is otherwize 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 cha ter which we were not entitled to administer

Ibid. See Jordan v. Cass County, 3 Dillon, 185; Davenport v. County of Dodge, 105 U. S. 237, 26 L. ed. 1018.

22 Hair y. Burnell, 106 Fed. 280,

here."

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