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native writ,41 to dismiss the proceeding, 42 or a demurrer.43 Objections depending upon new matter can only be raised by a return.44 It has been said that since the new equity rules the decision to quash or a demurrer should be postponed until the hearing on the merits. 46
A demurrer may be filed to the return.46 A motion for the writ founded on the record may be treated as such a demurrer.47 Amendments of the proceedings including the return may be allowed, but not such an amendment as would make an tirely new case. 48 It has been held that an amendment cannot be allowed after the reversal by the Supreme Court of an order granting the writ, when pending the writ of error the judgment has become dormant by the lapse of time under the State statute.49 It is error to refuse the relator permission to discontinue his application at any time before the final order, even after the return to an alternative writ.50
By the common law the return was not traversable.51 By the statute *9 Anne, ch. 20, a traverse was allowed to the return to a writ of mandamus in proceedings against persons claiming to hold public offices instituted by any person to obtain admission
41 High on Extraordinary Remedies $ 459; U. S. v. Postmaster of Buffalo, 221 Fed. 687.
42 Re Garrosi, C. C. A., 229 Fed. 363.
43 High on Extraordinary Reme. dies $ 459; U. S. v. Postmaster of Buffalo, 221 Fed. 687.
46 U. S. ex rel. Turner v. Fisher, 222 U. S. 204, 56 L. ed. 165. There, the relators set forth insufficient notice of a motion to strike their names from an enrollment of members of an Indian tribe and the return set forth, upon information and belief, that the relators were not entitled to be placed upon the enrollment. A general demurrer to this answer was overruled, since, if the return was true, the grant of
the writ would have been properly followed by a second order of the secretary, on due notice, striking the names of the relators from the roll. U. S. v. Nashville, C. & St. L. Ry., 217 Fed. 254.
47 Supervisors v. Durant, 9 Wall. 736, 19 L. ed. 813; U. S. v. Union Pac. R. Co., 4 Dill. 479; s. C. as Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428.
48 People v. Colorado Cent. R. Co., 42 Fed. 638, 644.
49 Brockway v. Oswego, 40 Fed. 612.
50 U. S. ex rel. Coffman V. Norfolk & W. Ry. Co., C. C. A., 118 Fed. 554.
51 Enfield v. Hills, 2 Lev. 236, 238; Lunt v. Davison, 104 Mass. 498; High on Extr. Rem., $ 457.
or restoration to office or to the franchise of being burgess or freeman.
The issues must be tried by a jury,52 and the proceedings must be in accordance with the practice at common law.58 A reference to a master of the issues, or of the return, and the exceptions thereto, is error. 54
Where the duty sought to be enforced is one neglected by a public corporation or a court,55 and not the purely personal default of a public officer, the death, resignation, or expiration of the term of office of the officer against whom the proceedings are directed will not abate them, and the writ may be issued or enforced against his successor.
56 When the writ or application is based upon the personal default of a public officer, according to the former rule, the proceeding would abate upon his death or his retirement from office.57 In such a case, if the application is granted, costs will be awarded to the relator, although the public officer acted in good faith under an erroneous view of the law.58
By statute it is provided : “That no suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration his term of office, or his retirement, or resignation, or removal from office, but, in such event, the Court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain
52 Cleveland v. U. S. ex rel. Cunningham, C. C. A., 127 Fed. 667.
53 Ibid. 54 Ibid.
55 Commissioners v. Sellew, 99 U. S. 624, 25 L. ed. 333; Thompson v. U. S., 103 U. S. 480, 485, 26 L. ed. 521, 523; Hollon Parker, Petitioner, 131 U. S. 221, 33 L. ed. 123. 56 Secretary
McGarrahan, 9 Wall. 298, 19 L. ed. 579; U. S. v. Boutwell, 17 Wall. 604, 21 L. ed. 721; Thompson v. U. S., 103 U. S. 480, 484, 485, 26 L. ed. 521, 523.
Fed. Prac. Vol. III-6
Contra, People ex rel. La Chicotte v. Best, 187 N. Y. 1, 116 Am. St. Rep. 586.
The writ may be addressed to the officers and to their successors in office whom it will bind. Hicks v. Cleveland, C. C. A., 106 Fed. 459.
57 Secretary McGarrahan, 9 Wall. 298, 19 L. ed. 579; U. S. v. Boutwell, 17 Wall. 604, 21 L. ed. 721; Thompson v. U. S., 103 U. S. 480, 484, 26 L. ed. 521, 523.
58 U. S. v. Schurz, 102 U, S. 407, 26 L. ed. 175.
a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the Court may make such order as shall be equitable for the payment of costs." 69 It has been held that this authorizes the continuance of a proceeding, upon an application for a mandamus, against the successor in office of the original respondent.60 The pendency of a previous application for the same relief, in the same jurisdiction and between the same parties, may be pleaded in abatement. 61
The issue of a mandamus to compel a railway company to comply with the Interstate Commerce Law does not bar an independent application to the court or Interstate Commerce Commission, by a person similarly situated with the relator, to secure similar relief, although he contributed to the expense of the former application.62
The application may be denied for laches,63 It has been held that a mandamus will not issue to enforce a judgment after the judgment has become dormant according to the State law through the lapse of time, and no execution can issue thereunder. 64
Delay will not bar the application when in the meantime the applicant has obtained, in accordance with the State practice, judgments renewing the original judgment.66
Upon an application for a writ of mandamus to enforce a judgment no question adjudicated by the judgment can be
59 Act of February 8, 1899, C. 121; 30 St. at L. 822.
60 Caledonian Coal Co. v. Baker, 196 U. S. 432, 442, 49 L. ed. 540, 544; supra, 8 216.
61 U. S. ex rel. Coffman v. Norfolk & W. Ry. Co., 114 Fed. 682.
62 Merchants' Coal Co. v. Fairmont Coal Co., C. C. A., 160 Fed.
the fund had been distributed. U. S. ex rel. Arant v. Lane, 249 U. S. 361; a delay of twenty months before an application for re-instatement to office.
64 U. S. v. Oswego, 28 Fed. 55; Brockway v. Oswego, 40 Fed. 612; McAleer v. Clay County, 42 Fed. 665; Stewart V. Justices of St. Clair Co. Court, 47 Fed. 482; City of Harper v. Daniels, C. C. A., 211 Fed. 57. But see Amy v. Galena, 7 Fed. 163.
65 Bunch v. U. S., C. C. A., 252 Fed. 163.
63 Matter of Eastern Cherokees, 220 U. 8. 83, 55 L. ed. 379, where an application to require the Court of Claims to modify its decree was denied because delayed until after
questioned; 66 but it is competent to show that the judgment is void.67 Where the application was made to collect judgments, by process not contained in themselves and requiring, to be sustained, reference to the alleged cause of action upon which they were founded, the aid of the court was denied when the record showed that the judgment rested on no cause of action.68 A lack of diversity of citizenship between the parties to the original judgment is no defense ; 69 not even when the representations concerning the citizenships were false and fraudulent.70 It is no defense to an application for the writ to compel the issue of a warrant for payment of a judgment in accordance with a State statute that the municipality has no funds to pay it ; 71 nor, is it a defense to an application for a writ to compel the levy of a tax which has been unlawfully refused for a period of years that the tax will exceed the statutory limitations.72 Nor to a proceeding for payment of a judgment out of a particular fund that there are outstanding municipal warrants when it is not shown that they are payable out of such funds or entitled to a preference.73
It is no defense to an application for a mandamus to compel the levy of a tax that, since the suit in which was entered the judgment sought to be enforced, a State court has enjoined the levy.74 Evidence that a special tax has been levied to pay the relator's claim, and that all claims except those of the same
66 Harshman v. Knox County, 122 U. S. 306, 30 L. ed. 1152; Kaill v. Board of Directors of St. Landry Parish, La., C. C. A., 194 Fed. 73; Tucker v. Hubbert, C. C. A., 196 Fed. 849; Estill County, Ky. v. Embry, C. C. A., 144 Fed. 913. It was held to be no defense to an application for a mandamus to compel the payment of a judgment by a parish, that the funds to be collected by it were dedicated by law to educational purposes and were insufficient to maintain the schools. Kaill v. Board of Directors of St. Landry Parish, La., C. C. A., 194 Fed. 73.
67 Moore v. Edgefield, 32 Fed. 498.
Re Griggs, C. C. A., 233 Fed. 243.
68 Brownsville v. Loague, 129 U. S. 493, 505, 32 L. ed. 780, 784, 505.
69 Bunch v. U. S., C. C. A., 252 Fed. 673.
71 Symons v. U. S. ex rel. Masters, C. C. A., 252 Fed. 109.
72 Evans v. Yost, C. C. A., 255 Fed. 726.
73 U. S. v Board of Directors of Public Schools, C. C. A., 229 Fed. 1; Clearwater County v. Pfeffer, C. C. A., 236 Fed. 183.
74 Riggs V. Johnson County, 6 Wall. 166, 18 L. ed. 768.
class have been granted, is irrelevant to an application for a mandamus to compel the issue of bonds to liquidate his judgment.75 It is no defense to the application that the duties sought to be commanded do not include all the acts requisite to a full satisfaction of the judgment.76 It seems that certiorari and mandamus cannot be joined in one writ.77 But the petition may pray for these writs in the alternative.78 An order awarding the writ, which declares that it is for the collection of the amount specified in a judgment, is not fatally defective for failure to specify the amount to be collected.79
The writ of mandamus may direct the performance of a series of acts by different persons.80 A writ of mandamus to compel the levy of a tax may direct the distribution of the tax over a number of years, in order to relieve the taxpayers from hardship.81 Under the prayer for general relief the writ may be issued to compel the levy of a tax for a different year from that specifically requested. 82
When relief is granted against a judge it is the usual practice to withhold the issue of the writ until he has had an opportunity to obey the decision after notice thereof.83 The issue of the writ may also be suspended in a case affecting the rights of a party convicted of a crime in order to afford time for executive clemency.84 Ordinarily, upon a petition for a mandamus against a judge, costs will not be taxed against him if the writ is granted, although they may be against such other adverse parties as appear and resist the application on the merits.85
75 U. S. ex rel. Fisher v. Board of Liquidation, etc., of New Orleans, 60 Fed. 387.
76 Rose v. McKie, C. C. A., 145 Fed. 584, affirming 140 Fed. 145.
77 Fairbanks v. Amoskeag Nat. Bank, 30 Fed. 602.
78 Am. Const. Co. v. Jacksonville T. & K. W. R. Co., 148 U. S. 372; 37 L. ed. 486, infra, 460.
79 Estill County, Ky. v. Embry, C. C. A., 141 Fed. 913.
80 Labette County Com ’rs v. U. S., 112 U. S. 217, 28 L. ed. 698;
Hicks v. Cleveland, C. C. A., 106 Fed. 459; Bunch v. U. S., C. C. A., 252 Fed. 673.
81 City of Cleveland, Tenn. v. U. S., 166 Fed. 677; City of Harper v. Daniels, C. C. A., 211 Fed. 57.
82 U. S. v. Board of Directors of Public Schools, C. C. A., 229 Fed. 1.
83 Ex parte Simons 247 U. S. 231, in which the author was counsel, Ex parte Equitable Trust Co., C. C. A., 231 Fed. 574.
84 Ex parte U. S., 242 U. S. 27, 52. 85 Re Haight & Freese Co., C. C.