stay, and to proceed with all convenient speed to try and adjudicate the controversy and to enforce the judgment upon it. Writ accordingly issued.

(Syllabus by the Court.)

On Petition for Writ of Mandamus.

The Barber Asphalt Paving Company, a corporation of the state of West Virginia, presents its petition to this court for a writ of mandamus to induce the Honorable Page Morris, District Judge holding the Circuit Court for the District of Minnesota, to proceed to the trial and determination of an action at law against the city of Duluth which the petitioner commenced in that court on May 31, 1904. In response to the order to show cause why the mandamus should not be issued the respondent has filed an answer, and by the petition and answer these facts are admitted: In May, 1902, the Barber Company entered into a contract with the city of Duluth to pave one of its streets for the sum of $54,760. Section 80 of the charter of that city provides that the city attorney may, and upon the request of seven taxpayers he must, appeal from the allowance by its common council of any claim exceeding $25, except the claims of employés or officers for wages or salary, to the district court of St. Louis county, which shall thereupon have jurisdiction of the parties and of the subject-matter, and that thereafter no order shall be issued for the payment of any part of the claim thus challenged until a certified copy of the judgment of the district court is filed with the city clerk. The Barber Company paved the street. On August 3, 1903, the mayor and common council of the city ordered the payment to that company of $25,500 on account of labor and material furnished by it under its contract, and the city attorney, at the request of seven taxpayers, appealed from this allowance to the district court of St. Louis county, where this appeal is pending. On October 8, 1903, the mayor and council of the city allowed and ordered the payment to the Barber Company of $8,189 on the same account, and at the request of the same taxpayers the city attorney appealed from this allowance to the same court, where this appeal is also pending. The city charter provides that these appeals shall be placed upon the calendar of the court for trial, that the court may require pleadings, that issues of law shall be summarily heard, and that issues of fact shall be tried as other issues of that character are heard in that court. Orders for pleadings and trials have been made in these appeals, but the Barber Company appeared specially in both and challenged the jurisdiction of the court, and in one failed to plead farther when its objections were overruled. In May, 1903, before the allowance of these appeals, certain taxpayers of the city of Duluth, some of whom subsequently instigated these appeals, brought a suit against that city and the Barber Company in the district court of St. Louis county to enjoin the city from paying anything to the petitioner on account of the work and material furnished by it under its contract. That suit was tried upon its merits, and in May, 1904, that court decided that the complainants were entitled to no relief, but stated in a memorandum filed with the decision that, if they had been diligent, they would have been entitled to an injunction, since, in the opinion of the court, the contract was invalid because there was not a sufficient amount in the permanent revolving fund at the time it was let to warrant its existence. In this state of the case the petitioner brought an action in the United States Circuit Court for the District of Minnesota against the city of Duluth on May 31, 1904, for the sum of $38,316.14, which it alleged was due to it under its contract. and a portion of which had been allowed by the city council and was challenged by the appeals. The city moved the court to stay all proceedings in that action until the trial and final determination of the proceedings pending in the state court, and on July 26, 1904, Judge Morris made an order of the court that all proceedings in that action should be stayed until the final determination of the two appeals pending in the district court of St. Louis county.

Carl Taylor (Jared How, on the brief), for petitioner.
Bert Fesler, for respondent.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The order which the petitioner challenges stays its action in the Circuit Court of the United States until the questions which that action presents shall have been finally determined by the courts of the state. That order is not reviewable by writ of error or by appeal, and the Barber Company applies to this court for its writ of mandamus to direct the judge holding the court below to proceed to the trial of its case.

The plaint of the petitioner is that by the order of the court below it is practically prohibited from a trial and decision by the national courts of a controversy over $38,316.14 between citizens of different states, which is pending in that court, and which involves nothing but the question of the existence and the amount of a simple contract debt. It is unnecessary to the determination of the issues now presented to consider or decide whether or not the district court of St. Louis county had acquired, by means of the appeals, jurisdiction of the subject-matter and of the parties to the action in the federal court when that court ordered all proceedings in the action before it stayed until the final determination of those appeals. If the state court had not acquired such jurisdiction, there was no reason for staying the cause in the federal court. If it had acquired jurisdiction, the order practically prohibits the trial of the controversy in the national courts, and remits its decision to the courts of the state, and the only reason urged in support of it is that the same controversy was pending in the district court of the state, that that court had jurisdiction of the subject-matter and of the parties, and that by the charter of the city its officers were forbidden to pay the claim of the petitioner until that court should so direct. It will accordingly be conceded-but it is not decided that the district court of St. Louis county had acquired jurisdiction by means of the appeals of the parties to the action in the federal court and of the controversy there presented when that action was commenced, and before the order which enjoined its progress was made. It is also conceded for the purposes of this decision, although that question is not decided, that the petitioner might have removed the appeals to the federal court, and that the question here presented stands as though the Barber Company had first brought actions to collect its debt in the state court, and had afterwards brought one in the federal court to enforce the same obligation.

The question, then, is, would the pendency of such actions be, or was the pendency of the appeals, a sound reason for prohibiting the trial of the controversy between the petitioner and the city in the federal court until the state courts had finally decided the questions which it involves? The general rule upon this subject has been so clearly announced and so often affirmed by the Supreme Court and by this court that it is no longer open to debate or con

sideration. It is that the pendency in a state court of an action
brought by the plaintiff in a subsequent action between the same.
parties in the federal court, and which involves the same subject-
matter, presents no bar and furnishes no ground for the abatement
of the later action. Stanton v. Embrey, 93 U. S. 548, 554, 23 L.
Ed. 983; Standley v. Roberts, 59 Fed. 836, 844, 8 C. C. A. 305,
314; Merritt v. Barge Co., 79 Fed. 228, 233, 24 C. C. A. 530, 535;
Green v. Underwood, 86 Fed. 427, 429, 30 C. C. A. 162, 164; Hughes
v. Green, 28 C. C. A. 537, 539, 84 Fed. 833, 835; Hubinger v. Cen-
tral Trust Co., 36 C. C. A. 494, 496, 94 Fed. 788, 790; City of Ogden
v..Weaver, 108 Fed. 564, 568, 47 C. C. A. 485, 492; B. & O. Ry. Co.
v. Wabash R. Co., 57 C. C. A. 322, 324, 119 Fed. 678, 680; Ball v.
Tompkins (C. C.) 41 Fed. 486, 490. But where one of the courts
has secured possession or dominion of specific property by proper
process, the suit in the co-ordinate jurisdiction to affect the same
property should not be dismissed, but before a seizure of the prop-
erty is made therein it should be stayed until the proceedings in
the court which first obtained jurisdiction of the property are con-
cluded, or ample time for their termination has elapsed. Zimmer-
man v. So Relle, 80 Fed. 417, 420, 25 C. C. A. 518, 521; Gates v.
Bucki, 53 Fed. 961, 965, 4 C. C. A. 116, 120.

The contention of counsel for the respondent is that the action
in the federal court was properly stayed because by the charter of
the city of Duluth the petitioner's claim is payable≤nly out of the
permanent revolving fund of the city, and the appeals to the state
court have the effect to attach this fund, and to enjoin the officers
of the city from paying it until the state court so directs. It does
not, however, appear that the liability of the city to its contractor
is in any way limited to the amounts which may at any time be
found in its revolving fund, or that it is anything less than a direct
contract liability. Barber Asphalt Paving Co. v. City of Denver,
72 Fed. 336, 340, 19 C. C. A. 139, 143; City of Denver v. Barber
Asphalt Paving Co., 27 C. C. A. 677, 83 Fed. 1020; United States v.
Saunders, 124 Fed. 124, 131, 59 C. C. A. 394, 401. Moreover, it is
not true that the appeals place any attachment or fasten any lien
upon the revolving fund of the city. If that fund is charged with
any lien or trust in favor of the petitioner, it is not by virtue of the
appeals or of the suits which they evidence, but by virtue of the
existence of the indebtedness of the city which those appeals chal-
lenge.

Nor does the provision of the city charter which prohibits the
officers of the city from paying the claim of the Barber Company
pending the appeals without the order of the state court in any way
restrict or impair the jurisdiction of the United States Circuit Court
to proceed to the trial of the controversy before it, and to the en-
forcement of the judgment which it may render. The provisions
of section 80 of the charter were not intended to limit or affect the
jurisdiction of the federal court. They furnish a convenient and
speedy method of securing the opinion of the state courts of the
validity of claims against the city, and, while they provide in terms
that, when appeals are taken from the allowance of such claims,

they shall be paid only upon the order of the appellate court, they do not exclude original suits or the enforcement of judgments upon them by the usual processes even in the state courts (Murphy v. County Commissioners, 14 Minn. 67 [Gil. 51]), much less in the courts of the United States. Nor would this prohibition of the charter have had the effect to restrict the power of the federal courts if such had been the intention of the Legislature of the state. The jurisdiction of the federal courts is granted to them by the Constitution and laws of the United States, and no state legislation may impair, restrict, or destroy it. Wherever the citizens of a state may secure a trial and decision of their controversies in its courts either by original suits, by appeals, or by other proceedings, citizens of different states have the right to the determination by the courts of the United States of like controversies between them which involve the requisite amounts; and no state, by conferring exclusive jurisdiction of such controversies upon its own courts, by prescribing exclusive methods of commencing litigation, by prohibiting the payment of claims save upon the order of its own courts or by any other means, may strike down that right or take away the plenary power of the national courts to enforce their lawful adjudications. Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433, 434 [U. S. Comp. St. 1901, p. 508]; Davis v. Gray, 16 Wall. 203, 221, 21 L. Ed. 447; Ex parte McNeil, 13 Wall. 236, 20 L. Ed. 624; Cowley v. Railroad Co., 159 U. S. 569, 583, 16 Sup. Ct. 127, 40 L. Ed. 263; Cummings v. Bank, 101 U. S. 153, 157, 25 L. Ed. 903; Gaines v. Fuentes, 92 U. S. 10, 20, 23 L. Ed. 524; Railway Co. v. Whitton, 13 Wall. 270, 278, 287, 20 L. Ed. 571; Broderick's Will, 21 Wall. 503, 520, 22 L. Ed. 599; Gormley v. Clark, 134 U. S. 338, 348, 10 Sup. Ct. 554, 33 L. Ed. 909; Darragh v. H. Wetter Mfg. Co., 78 Fed. 7, 14, 23 C. C. A. 609, 616; Richardson v. Green, 9 C. C. A. 565, 571, 578, 61 Fed. 423, 429, 435; National Surety Co. v. State Bank of Humboldt, 120 Fed. 593, 56 C. C. A. 657; Sawyer v. White, 122 Fed. 223, 227, 58 C. C. A. 587, 591. The provision of the city charter that, after the claims of the petitioner were challenged by appeals to the state court, they should never be paid by the officers of the city without the order of that court, was ineffective to deprive the court below of the power in a proper case before it to order those claims to be paid, or to relieve the officers of the city from the duty to obey such an order. Mercer County v. Cowles, 7 Wall. 118, 119, 19 L. Ed. 87; Chicot County v. Sherwood, 148 U. S. 529, 533, 534, 13 Sup. Ct. 695, 37 L. Ed. 546; Thompson v. Searcy County, 57 Fed. 1030, 1037, 6 C. C. A. 674, 680; Hess v. Reynolds, 113 U. S. 73, 77, 78, 5 Sup. Ct. 377, 28 L. Ed. 927; Clark v. Bever, 139 U. S. 96, 103, 11 Sup. Ct. 468, 35 L. Ed. 88; Union Bank v. Vaiden, 18 How. 503, 15 L. Ed. 472; Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct. 440, 36 L. Ed. 130; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867; Security Trust Co. v. Black River National Bank, 187 U. S. 211, 227, 23 Sup. Ct. 52, 47 L. Ed. 147; Barrow Steamship Co. v. Kane, 170 U. S. 100, 111, 18 Sup. Ct. 526, 42 L. Ed. 964; In re Stutsman County, N. D. (C. C.) 88 Fed. 337, 340, 343. Thus the laws of the states relative to

the administration and settlement of decedents' estates generally expressly limit the right to establish demands against such estates to proceedings in the probate courts of the states. But a creditor of another state may nevertheless establish his claim in an action against the personal representative of the deceased in the proper federal court without first presenting it to the probate court. Security Trust Co. v. Black River National Bank, 187 U. S. 227, 23 Sup. Ct. 52, 47 L. Ed. 147, and cases there cited.

By the law of their organization, counties in Illinois were exempt from suit elsewhere than in the circuit courts of the county. But a suit by a citizen of another state against such a county in the federal court was sustained, and Chief Justice Chase said:

"The power to contract with citizens of other states implies liability to suit by citizens of other states. and no statute limitation of suability can defeat a jurisdiction given by the Constitution." Mercer County v. Cowles, 7 Wall. 122, 19 L. Ed. 87.

The Legislature of the state of Arkansas provided that no suit or proceeding against a county in that state should be maintained in any court otherwise than by a presentation of a verified claim to the county court for allowance or rejection, that the defeated party might appeal from the decision of that court to the state court of general jurisdiction, where the case should be tried in the usual course, but that in the absence of the presentation of a verified claim to the county court no case against or controversy with a county could arise of which any court, state or federal, could take cognizance or jurisdiction. Citizens of New York brought an action against a county of the state of Arkansas in the federal court by original process without presenting any claim to the county court. The Supreme Court sustained the action, and said:

"Any other view of the subject would prevent citizens of other states from resorting to the federal courts for the enforcement of their claims against counties of the state, and limit them to the special mode of relief prescribed by the act of February 27, 1879 [St. Ark. 1903, c. 32, §§ 810-812]. The jurisdiction of the federal courts is not to be defeated by such state legislation as this. In Hyde v. Stone, 20 How. 170, 175, 15 L. Ed. 874, it is said: 'But this court has repeatedly decided that the jurisdiction of the courts of the Unitel States over controversies between citizens of different states cannot be impaired by the laws of the states which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. In many cases state laws form a rule of decision for the courts of the United States, and the forms of proceeding in these courts have been assimilated to those of the states, either by legislative enactment or by their own rules. But the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction. Suydam v. Broadnax, 14 Pet. 67, 10 L. Ed. 357; Union Bank v. Vaiden, 18 How. 503, 15 L. Ed. 472.' This principle has been steadily adhered to by this court." Chicot County v. Sherwood, 148 U. S. 529, 533, 534, 13 Sup. Ct. 695, 37 L. Ed. 546.

These principles and authorities render the following conclusions unavoidable: The petitioner's right of action in the Čircuit Court to recover the debt which it alleges to be due to it from the city was not conditioned by its presentation of its claim to the city council, or by any of the other requirements of the charter of the city of