Dissenting Opinion: Bradley, J., Harlan, J., Matthews, J. to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly "within the jurisdiction" of said Circuit Court, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require. What is meant by the expression "within the jurisdiction"? It means, within the judicial cognizance within the capacity to determine the merits of the dispute or controversy, and to grant the relief asked for. The provision does not give countenance to the idea that the suit or proceeding is to be retained in the Circuit Court till brought to a formal adjudication on the merits, when, at that ultimate stage, the court must say that the case is not within its jurisdiction, after the party successfully challenging the jurisdiction has been harassed by expense and injured by delay. But it means what it says, that the dismissal or remanding "shall" be made whenever, "at any time" after the suit is brought or removed to the Circuit Court, it shall appear to the satisfaction of that court that there is, really and substantially, no dispute or controversy of which it has jurisdiction, in the sense above pointed out; the right to have a review by this court of the order dismissing or remanding the suit being given to the aggrieved party at once, instead of his being compelled to await the making of such an order at the end of a full and formal hearing or trial, on issues and proofs, on the merits alleged on either side. Orders affirmed. MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE MATTHEWS, dissenting. MR. JUSTICE HARLAN and MR. JUSTICE MATTHEWS agree with me in dissenting from the judgment of the court in this case. It is a constitutional right of the citizens of the several states having controversies with the citizens of other states, to have a national forum in which such controversies may be liti Dissenting Opinion: Bradley, J., Harlan, J., Matthews, J. gated. It was one of the declared purposes of the Constitution. that the judicial power of the United States should extend to certain cases enumerated, one of which was, "to controversies between citizens of different states;" and it was declared that this power should be vested in one Supreme Court, and in such inferior courts as the Congress might from time to time ordain and establish; thus making it the duty of Congress to establish such tribunals. If Congress fails in this constitutional duty, the citizens have no redress but the ballot-box. But Congress has not failed. It has established the requisite tribunals, and has invested them with the powers necessary to give the citi zens their constitutional rights. Or, if it has failed in any respect, either with regard to persons or causes, we think it has not failed in respect to the class of cases to which the present belong. Congress, by the act of March 3, 1875, passed to determine the jurisdiction of the Circuit Courts, has declared that they shall have original cognizance, concurrent with the courts of the several states, amongst other things, of all suits of a civil nature at common law or in equity, involving over five hundred dollars, in which there shall be a controversy between citizens of different states; and that any such suit brought in any state court may be removed by either party into the Circuit Court for the proper district. This jurisdiction should be liberally construed so as to give full effect, as far as may be, to the constitutional right, as presumably within the intent of Congress The terms "suits at common law and in equity," or "suits at law and in equity" (which is the same thing), are, in themselves, of the most general character and of the broadest signi fication; and this court ought not, by its decisions, to restrict their application. It is not meant by the expression "suits at common law," to confine the jurisdiction of the Circuit Courts to the old technical actions of trespass, trover, trespass on the case, debt, detinue, assumpsit, &c., but it extends to and includes any form of proceeding of a civil nature in which a legal right cognizable by the courts of common law is sought to be judicially enforced, by whatever name, under the new-fangled nomenclature adopted by the different states, the proceeding Dissenting Opinion: Bradley, J., Harlan, J., Matthews, J. may be called. Suits at law and equity include every form of proceeding except those peculiar to Admiralty, Ecclesiastical or Probate and Military jurisdictions. And even in matters savoring of Ecclesiastical process, after an issue has been formed between definite parties, we have held that the controversy came under the head of a suit at law. Gaines v. Fuentes, 92 U. S. 10, 17; Hess v. Reynolds, 113 U. S. 73. The broad terms used in the law were purposely employed, as it seems to us, to make the jurisdiction complete to the full extent which the Constitution intended it should have. It is true, that in one or two cases we have intimated a distinction between the extent of jurisdiction given in the first and that given in the second sections of the act of 1875; but that distinction, if well founded, does not affect the present cases, since they arise under the second section, which has been supposed to be the broader of the two, and, in any event, the ground of distinction is not here involved. Now, a mandamus, which was originally a prerogative writ only, has come to be in many cases, and in most states, a private suit, brought for the purpose of enforcing a private right. This is true in the two cases now before us. The appellant has a money demand against the city and county of San Francisco, and is seeking to collect it in the usual way in which such demands are collectible by the law of procedure of California. The mandamus which he seeks is the mere process for commencing his action, and is a proper process suited to his case. The city and county of San Francisco can set up any defences to the action in this form which it could do in the ordinary action of debt or upon contract. It is essentially a civil suit at law, no matter by what name it is called, — certainly as much so as were the proceedings in Gaines v. Fuentes, Hess v. Reynolds, already cited, and in Boom Company v. Patterson, 98 U. S. 403, 404, where there was an issue to ascertain the value of property taken by virtue of eminent domain. In Davies v. Corbin, 112 U. S. 36, we sustained a writ of error from this court to the Circuit Court on a judgment in a proceeding for mandamus to carry into effect a judgment for a debt. The Chief Justice there said: "While the writ of mandamus, in Dissenting Opinion: Bradley, J., Harlan, J., Matthews, J. cases like this, partakes of the nature of an execution to enforce the collection of a judgment, it can only be got by instituting an independent suit for that purpose. There must be, first, a showing by the relator in support of his right to the writ; and, second, process to bring in the adverse party, whose action is to be coerced, to show cause, if he can, against it. If he appears and presents a defence, the showings of the parties make up the pleadings in the cause, and any issue of law or fact that may be raised must be judicially determined by the court before the writ can go out. Such a determination is, under the circumstances, a judgment in a civil action brought to secure a right, that is to say, process to enforce a judgment.. Such a judgment is, in our opinion, a final judgment in a civil action, within the meaning of that term as used in the statutes regulating writs of error to this court." In the jurisprudence of California, it has frequently been held that a mandamus is a civil action. It is only necessary to refer to the cases to show that this is a point beyond all dispute. Perry v. Ames, 26 Cai. 372; Cariaga v. Dryden, 30 Cal. 244, 246; Courtwright v. Bear River Mining Co., 30 Cal. 573, 583; Knowles v. Yeates, 31 Cal. 90; People v. Kern County, 45 Cal. 679; People v. Thompson, 66 Cal. 398. But it is urged that the power given to the Circuit Courts of the United States to issue writs of mandamus is limited by act of Congress to certain special cases, namely, only where they may be necessary for the exercise of their ordinary jurisdiction, Rev. Stat., § 716, and that, according to the decisions of this court, in suits for the collection of money, the writ can only be used as ancillary to an execution after a judgment has been obtained in an ordinary suit. It is sufficient to say that all of these decisions, except two, relate to the law as it was before the passage of the act of 1875. That act, as we have seen, is expressed in general terms without any qualification as to the writs or process which shall be employed, and repeals any restraining effect of § 716 of the Revised Statutes if in conflict with it. The two cases to which we have referred as decided since the act are County of Greene v. Daniel, 102 U. S. 187, and Davenport v. County of Dodge, 105 U. S. 237. But the Dissenting Opinion: Bradley, J., Harlan, J., Matthews, J. point decided in these cases was, that, although the state law gave the remedy of mandamus to compel the levy of taxes for the payment of bonds, an ordinary action might nevertheless be brought on the bonds for the purpose of obtaining a judg ment. They do not decide, whatever dicta may appear to have been made, that mandamus might not have been brought originally. The inference drawn from § 716, Rev. Stat., is, that as it grants power to this court and the Circuit Courts "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law," (which is rightly supposed to include the writ of mandamus,) it must be construed as denying the power to issue that writ in any other case. This conclusion might be admissible if it is restrained to the instance of the particular writ of mandamus which alone was in contemplation; that is, the prerogative writ of mandamus as known to the practice of the King's Bench in England. The object of this section of the statute was to give the courts of the United States the power to issue such a writ when necessary in the exercise of a jurisdiction in which the use of such a writ was conformable to law. But the section had no reference to mandamus as a form of civil action, as it has become in modern times, having a definite purpose and scope, and as distinct in its use, for the purpose of enforcing private rights of a particular description, as are the forms of actions known to the common law, such as assumpsit, debt, or trespass. Viewed as a civil action, authorized by the laws of the state in which the suit is brought, the jurisdiction of the Circuit Courts is established by § 1 of the act of 1875, which embraces "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 five hundred dollars, in which there shall be a controversy between citizens of different states." If there be such a suit, in which, by the law of the state, the form of proceeding is required to be in mandamus, § 914, Rev. Stat., applies, which requires that "the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity |