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Opinion of the Court.

necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."

In McClung v. Silliman, in 1821, 6 Wheat. 598, a mandamus was applied for in a Circuit Court of the United States to compel the register of a land office of the United States to issue papers to show the preemptive interest of the plaintiff in certain land. The writ was refused. In this court, the case was sought to be distinguished from McIntire v. Wood, on the ground that the parties were citizens of different states. But the court, speaking again by Mr. Justice Johnson, said that no just inference was to be drawn from the decision in McIntire v. Wood, in favor of a case in which the Circuit Court was vested with jurisdiction by citizenship under § 11 of the act of 1789. And then, in answer to the argument, that, as the parties were citizens of different states, and competent to sue under § 11, the Circuit Court was, by § 14, vested with power to issue the writ as one "necessary for the exercise of its jurisdiction," the court said: "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 acquired by means of the writ proposed to be sued out.”

Consistently with the views in those cases, this court, in Riggs v. Johnson County, in 1867, 6 Wall. 166, held that a Circuit Court had power to issue a mandamus to officers of a county, commanding them to levy a tax to pay a judgment rendered in that court against the county for interest on bonds issued by the county, where a statute of the state, under which the bonds were issued, had made such levy obligatory on the county. This ruling has been repeatedly followed since, and rests on the view that the issue of the mandamus is an award of execution on the judgment, and is a proceeding

Opinion of the Court.

necessary to complete the jurisdiction exercised by rendering the judgment.

In many cases adjudged in this court since McIntire v. Wood, that case has been referred to as settling the law on the point to which it relates; as in The Secretary v. McGarrahan, 9 Wall. 298, 311; Bath County v. Amy, 13 Wall. 244; and Heine v. The Levee Commissioners, 19 Wall. 655.

In Bath County v. Amy, in 1871, (ubi supra,) the holder of bonds issued by a county in Kentucky applied to the Circuit Court of the United States for a mandamus to compel the county court to levy a tax to pay the interest on the bonds, on the ground that a statute of the state required the county court to do so. No judgment had been obtained for the interest. In Kentucky such a proceeding could have been maintained in a court of the state, without a prior judgment, and would have been there treated as a suit of a civil nature at common law, and not a mere incident to another suit. The Circuit Court awarded the mandamus, but this court reversed the judgment, holding that it was doubtful whether the writ of mandamus was intended to be embraced in the grant of power in the 11th section of the Judiciary Act of 1789, to the Circuit Courts, to take cognizance of suits of a civil nature, at com. mon law, where the diversity of citizenship there specified existed; but that the special provision of the 14th section of the act, while, no doubt, including mandamus under the term "other writs," indicated that the power to grant that writ generally was not understood to be covered by the 11th section. Citing the prior cases, the court said: "The writ cannot be used to confer a jurisdiction which the Circuit Court would not have without it. It is authorized only when ancillary to a jurisdiction already acquired."

The same doctrine was applied, in Graham v. Norton, in 1872, 15 Wall. 427, where a Circuit Court of the United States had affirmed the action of a District Court in granting a mandamus to compel a state auditor to issue certificates as to the amount of illegal taxes paid by the applicant, the issuing of such certificates being provided for by a statute of the state. This court held that neither the Circuit Court nor the District Court had jurisdiction to issue the writ.

Opinion of the Court.

The same principles have been asserted by this court in cases arising since the act of March 3, 1875; as in County of Greene v. Daniel, 102 U. S. 187, 195; in United States v. Schurz, 102 U. S. 378, 393; in Davenport v. County of Dodge, 105 U. S. 237, 242, 243; and in Louisiana v. Jumel, 107 U. S. 711, 727.

But now it is contended for the plaintiff in error that the Circuit Court can obtain jurisdiction of these cases by their removal under § 2 of the act of 1875. It was evidently thought that the Circuit Court would have no original cognizance of them, if commenced in that court, for they were not brought in that court, although in the petition for removal in each proceeding the plaintiff states that he was a citizen of New York when it was commenced, and in the petition for removal in the first proceeding he states that Bauer was at its commencement a citizen of California, the defendant in the. second proceeding being, when it was brought, a municipal corporation of California. The proceedings were evidently instituted with the purpose of removing them, for the petitions for removal were severally filed by the plaintiff three days and ten days after process was served on the defendant, and nothing was done in the state court but to file a complaint, and to serve a summons, and to take proceedings for a removal.

To maintain the jurisdiction by removal, it is contended. that that jurisdiction does not depend on the original jurisdiction of the Circuit Court; that the former may exist without the latter; and that in the present case it does exist.

The only possible ground of jurisdiction in the present cases, is diversity of citizenship; for the right of action claimed does not arise under the Constitution or a law or treaty of the United States. It exists, if at all, under a statute of the state. The state is not alleged to have passed any law imparing the obligation of any contract of which the plaintiff claims the benefit, or to have deprived him of any right secured to him by the Constitution of the United States. In respect to jurisdiction by citizenship, as applicable to this case, § 1 of the act of 1875, in regard to original jurisdiction, and § 2, in regard to jurisdiction by removal, describe the subject-matter of the suit

Opinion of the Court.

in terms which are the same legally. In § 1, the suit of which "original cognizance" is given is a suit "of a civil nature, at common law or in equity," where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and "in which there shall be a controversy between citizens of different states." In § 2 the language is identical, except that the suit is to be a suit "of a civil nature, at law or in equity." In 11 of the act of 1789, the original cognizance given to the Circuit Courts was of "all suits of a civil nature, at common law or in equity," where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and "the suit is between a citizen of the state where the suit is brought and a citizen of another state." In § 12 of that act, jurisdiction. by removal was given to the Circuit Courts of a like suit. Now, if, as has always been held, "original cognizance," under § 11 of the act of 1789, did not exist, of proceedings like those before us, founded on citizenship, it must necessarily follow that original cognizance cannot exist, under § 1 of the act of 1875, of such a proceeding, founded on citizenship. If so, it is impossible to see how, with legally identical language in § 2 with that in § 1, jurisdiction by removal can exist, under § 2 of the act of 1875, of proceedings like those before us, founded on citizenship. This view is entirely aside from the principle which has controlled in some cases, where a restriction as to original jurisdiction, contained in other provisions of § 11 of the act of 1789, did not exist in § 12 of that act, in regard to jurisdiction by removal, or in other removal statutes. Of that character was the restriction in § 11 on the right of an assignee of a chose in action to sue if the suit could not have been prosecuted in the court had the assignment not been made; as illustrated by the cases cited by the plaintiff in error, of City of Lexington v. Builer, 14 Wall. 282, and Claflin v. Commonwealth Ins. Co., 110 U. S. 81.

In Gaines v. Fuentes, 92 U. S. 10, an application for removal was sustained under the local prejudice act of March 2, 1867, 14 Stat. 558, of a suit to annul a will, on the ground that the act, in authorizing the removal, invested the Federal court by that fact with all needed jurisdiction to adjudicate the case.

Opinion of the Court.

But that case was not one of a mandamus, to which the implied restriction of the statute in respect to that writ was applicable. The same remark may be made as to Boom Com*pany v. Patterson, 98 U. S. 403, where the removed proceeding was one to condemn lands for the use of a boom company; and as to Iless v. Reynolds, 113 U. S. 73, where the removal was of a proceeding in a Probate Court to obtain payment of a claim against the estate of a deceased person; and as to Bliven v. New England Screw Co., 3 Blatchford, 111, and Barney v. Globe Bank, 5 Blatchford, 107, where foreign corporations successfully maintained jurisdiction by removal, in ordinary suits, although they could not have been compulsorily brought into the Circuit Court, by original process.

As this court, while §§ 11 and 12 of the act of 1789 were in force, and § 14 of that act was also in force, always held, even where the requisite diversity of citizenship existed, that the restriction of § 14 operated to prevent original cognizance by a Circuit Court, under § 11, of a proceeding by mandamus not necessary for the exercise of a jurisdiction which had previously otherwise attached, so, with §§ 1 and 2 of the act of 1875 in force at the same time with § 716 of the Revised Statutes, the restriction of § 716 must operate to prevent cognizance by removal, by a Circuit Court, under § 2 of the act of 1875, even where the requisite diversity of citizenship exists, of a like proceeding by mandamus. As was said by this court, speaking by Mr. Justice Miller, in Iless v. Reynolds, 113 U. S. 73, 79, 80, the language of the repealing clause of the act of 1875, is, "that all acts and parts of acts in conflict with the provisions of this act are hereby repealed," and the statute to be repealed must be in conflict with the act of 1875, or that effect does not follow. There is nothing in § 2, or any other part of the act of 1875, which is in conflict with, or has the effect to abolish, the restriction of § 716, just as there was nothing in § 11 or § 12, or any other part of the act of 1789, which was in conflict with, or had the effect to abolish, the restriction of § 14 of that act.

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These cases fall directly within the provision of § 5 of the act of 1875, that if, in any suit removed from a state court

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