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urer to pay a judgment of the Court of Claims. No mandamus will issue to enforce specific performance of a contract with the United States which has been repudiated by an act of Congress.6 It has been held that a writ of mandamus, addressed to the Commissioner of Patents, is the proper remedy to compel the transmission to the Board of Examiners in Chief of an appeal, which the primary examiner has refused to allow; and that, in such a case, a writ should not issue to the Court of Appeals for the District of Columbia, which has dismissed, for want of jurisdiction, an appeal.?



pose of challenging the validity of the entry within two years from the issue of the final receiver's receipt, although an adverse report by a dep. uty supervisor of a National Forest challenging such entry for insufficiency of residence and cultivation had been filed in the General Land Office within the two years but not acted upon until after the time had expired. Lane v. Hoglund, 244 U. S. 174. The writ will issue to compel the Interstate Commerce Commission to entertain plaint which it has dismissed under the belief that it is beyond its juris. diction. Interstate Commerce Commission v. U. S. ex rel. Humboldt Steamship Co., 224 U. S. 474, 56 L. ed. 849; U. S. ex rel. Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638. To compel the Interstate Commerce Com. mission to receive proof as to the present cost of condemnation and damages, or purchase, of the land, rights of way and terminals owned by a railroad and to report there. upon in accordance with the Act of March 1, 1913, ch. 92 (37 St. at L. 701). U. S. ex rel. Kansas City Southern Ry. Co. v. Interstate Commerce Commission, 252 U. 8. 178.

5 Roberts v. U. S., 176 U. S. 221,

44 L. ed. 443. There is a dictum by Mr. Justice Daniel to the effect that no mandamus will issue "to command the withdrawal of a sum or sums of money from the Treasury of the United States to be ap. plied in satisfaction of disputed or controverted claims against the United States.'' U. S. ex rel. Goodrich v. Guthrie, 17 How. 284, 303, 15 L. ed. 102, 105. In an English case, Lord Chief Justice Denman said: “If, as has been suggested, it should on any occasion be unsafe with reference to the public service to make a payment of this kind, the fact may be stated on return to the mandamus. There might per: haps be occasions on which the Lords Commissioners would be bound to apply the money to par. ticular purposes of a more pressing nature.The King v. The Lord Com’rs of the Treasury, 4 Ad. & El. 286, 295; cited by Lamar, J., in U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 644, 34 L. ed. 811, 814.

6 U. S. ex rel. Levey V. Stock slager, 129 U. S. 470, 478, 32 L. ed. 785, 787.

7 Ex parte Frasch, 192 U. S. 566, 48 L. ed. 564.

$ 459. Practice on application for mandamus. In the Supreme Court of the United States, the usual practice on an application for a mandamus is to issue a rule addressed to the judge or judges of the lower court calling on him or them to show cause why the writ should not issue against him. The rule may also be addressed to the lower court itself. The rule is only issued upon a petition verified by affidavit, showing an apparent right to the writ. The party at whose relation the writ is issued must show an interest in the relief sought; 4 and should allege his citizenship. He is not obliged to obtain the intervention of the Attorney-General or a district attorneyIt is the safer practice to move ex parte for leave to file the petition.? The return cannot be amended on the motion of a person to whom the writ is not addressed.8

An application for a mandamus to enforce payment of a judgment of a court of the United States is ancillary to the original action and within the jurisdiction of the Federal court, irrespective of the citizenship of the parties. 9

It has been held that, upon an application based upon a statute of the United States, the State practice should not be followed; but that the practice remains substantially as at common law.10 It has been said that the practice should conform to that upon an application for a scire facias. 11

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$ 459. 1 Postmaster-General Trigg, 11 Pet. 173, 9 L. ed. 676; Ex parte Poultney v. La Fayette, 12 Pet. 472, 9 L. ed. 1161; Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853.

2 Hollon Parker Petitioner, 131 U. S. 221, 33 L. ed. 123. •

3 Poultney v. La Fayette, 12 Pet. 472, 9 L. ed. 1161; Ex parte Taylor, 14 How. 3, 14 L. ed. 302; Postmaster-General v. Trigg, 11 Pet. 173, 9 L. ed. 676.

4 Ex parte Fleming, 2 Wall. 759, 17 L. ed. 924; Clough v. Curtis, 134 U. S. 361, 33 L. ed. 945; People v. Colorado Cent. R. Co., 42 Fed. 638.

5 People v. Colorado Cent. R. Co., 42 Fed. 638, 641.

6 U. P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428; s. c. as Hall v. Union P. R. Co., 3 Dill. 515; U. S. v. U. P. R. Co., 91 U. S. 72, 23 L. ed. 224.

7 Georgia v. Grant, 6 Wall. 241, 18 L. ed. 848; Farmers' L. & Tr. Co., Petitioner, 129 U. S. 206, 32 L. ed. 656.

8 Ex parte Harmon, 131 U. S. Appendix, lxvii.

9 Tucker v. Hubbert, C. C. A., 196 Fed. 849.

10 U. S. v. U. P. R. Co., 2 Dill. 527; Evans v. Yost, C. C. A., 255 Fed. 726.

11 Evans v. Yost, C. C. A., 255 Fed. 726, infra, $ 469.

It is, however, safer to comply also with the regulations of the State practice.12 The rule in the State of Washington, that, in case of the refusal of the treasurer of a municipal corporation to pay a warrant, the holder cannot sue the municipality, but his sole remedy is a mandamus to compel the levy of a tax, does not bind the Federal courts there held, and the holder of the warrant may recover a judgment at law as preliminary to an application for a mandamus. 13

A State statute forbidding a mandamus to enforce a judgment against a municipal corporation has been held not to deprive the Federal court of jurisdiction.14 Where mandamus is sought to compel the payment of a judgment against a municipal corporation, performance should be first made of all conditions precedent required by State statutes, such as the issue of an execution and its return unsatisfied,15 and service of the judgment upon such officers as the State statute requires. 16 It seems that a formal demand for payment of the judgment is, except when the statutes of the State require it, not a condition precedent to the issue of the writ.17 A demand for payment of a judgment is equivalent to a demand for the levy of a tax to pay it.18 The filing of a certificate of the judgment with a city clerk in Montana was held to be a sufficient demand. 19

The remedy is a common law writ.20 A bill in equity praying for its issue to correct certain tax assessments cannot be sus

12 Wisdom V. Memphis, 2 Flip. 285; Stewart v. Justices of St. ('lair Co. Court, 47 Fed. 482, 484, quoted supra, $ 455.

13 First Nat. Bank of Central City v. City of Port Townsend, Wash., C. C. A., 184 Fed. 574.

14 Hart v. New Orleans, 12 Fed. 292; New Orleans v. Morris, 3 Woods, 103, 115. "A mandamus to collect a tax for the payment of a judgment is process in execution, and nobody heretofore has ever questioned the power of a court to control its own process." Memphis v. Brown, 97 U. S. 300, 24 L. ed. 924, per Story, J.

15 Riggs v. Johnson County, 6

Wall. 166, 18 L. ed. 768; Weber v. Lee County, 6 Wall. 210, 18 L. ed. 781; Lansing v. County Treasurer, 1 Dill. 522; Laird v. Mayor of De Soto, 25 Fed. 76.

16 Moran v. Elizabeth, 9 Fed. 72.

17 U. S. v. Elizabeth, 9 Rep. 232; U. S. V. Auditors of Brooklyn, 8 Fed. 473; U. S. v. New Orleans, 17 Fed. 483.

18 U. S. ex rel. Masslich v. Saunders, C. C. A., 124 Fed. 124,

19 Mayor, etc., of Helena v. U. S. ex rel. Helena Waterworks, C. C. A., 104 Fed. 113.

20 Assessor of Vernon Parish v. Gould, C. C. A., 210 Fed. 894.

tained upon the equity side of the court.21 The application should be by a verified petition, which may be also termed an information or complaint.22 Such petition should state the citizenship of the petitioner 23 and contain a correct, uncolored statement of the matter concerning which it seeks relief.24

The writ of mandamus is either peremptory or alternative. 25 The peremptory writ requires the defendant absolutely to obey its commands. The alternative writ directs him either to obey or to show cause to the contrary upon the day fixed for its return. 26

Except under extraordinary circumstances, when no defense is possible 27 a peremptory writ cannot issue without notice to the respondent.28

The alternative writ should state the averments of title or right which form the inducement of the writ, and should be in conformity with the legal obligation of the respondent.29 A peremptory writ has, however, been granted from the return of a citation to show cause to the contrary without any alternative writ.30

The writ and other proceedings upon an application for a mandamus to compel the levy of a tax under a judgment against a public corporation should ordinarily be addressed by name to the officers whose duty it is to act, and also describe them in their official capacity 31 A mandamus is sufficient when merely addressed to a public officer by his official title without naming him,32 although the corporation has another title under

21 Ibid.

22 Poultney v. La Fayette, 12 Pet. 472, 9 L. ed. 1161; U. S. v. Union P. R. Co., 2 Dill. 527.

See High on Extr. Rem., Part I, ch. viii.

23 People v. Colorado Cent. R. Co. 42 Fed. 638, 641.

24 Ex parte Slater, 246 U. S. 128.

25 U. S. ex rel. Fisher v. Board of Directors of Public Schools, C. C. A., 229 Fed. 1.

26 Ibid.

27 Commissioners of Santa Fe County v. Territory of New Mexico ex rel. Coler, 215 U. S. 296.

28 Fairbanks v. Amoskeag Nat. Bank, 3 Fed. 602.

29 People v. Colorado Cent. R. Co., 42 Fed. 638, 644.

30 Clearwater County V. Pfeffer, C. C. A., 236 Fed. 183,

31 Thompson v. U. S., 103 U. S. 480, 484, 26 L. ed. 521, 523; The Mayor v. Lord, 9 Wall. 409, 19 L. ed. 704. For a form of the mandatory part of the writ see Cleveland v. U. S., C. C. A., 111 Fed. 341, 349; Bunch v. U. S., C. C. A., 252 Fed. 673.

32 Thompson v. U. S., 103 U. S.

which its charter gives it power to be suit.33 The writ may also be addressed to the corporation itself, as in the case of a county.34 When the clerk has acted in obedience to an erroneous order of his court, it is irregular to make the clerk and not the court and judge a party to the application.35 When the action sought to be corrected is that of a single judge he should be the respondent.36 It is proper to unite as respondents to the proceedings for the writ, all the officers whose action is necessary to the levy of the tax, although some of them have not refused to act.37 Where parts of a county have been detached by a statute providing that they bear their respective proportions of its indebtedness, the counties to which those portions are annexed are not necessary parties to an application for a mandamus to compel the commissioners of the original county to levy a tax to pay the same.38 When a State statute provides that service of process against a public board may be made upon its clerk, service of the writ upon that clerk will be sufficient to justify the punishment of the individual members of the board for contempt if they disobey.39 An alternative writ of mandamus commanding certain designated officials and “such persons as may be elected to fill vacancies in the board of revision and assessment” to do certain acts was held bad on demurrer, as showing that some against whom it was directed had no notice and were not ascertained.40

The respondent, if he is unwilling to do the thing directed, under the former practice at least, may raise objections apparent on the face of the application by a motion to quash the alter

480, 26 L. ed. 521; The Mayor v.
Lord, 9 Wall. 409, 19 L. ed. 704.
As to the form of the writ, see
State v. Sullivan, 50 Fed. 593.

83 The Mayor v. Lord, 9 Wall. 409, 19 L. ed. 704.

84 Commissioners v. Sellew, 99 U. S. 624, 25 L. ed. 333.

85 Ex parte Abdu, 247 U. S. 27, 29, where the irregularity was disregarded. Ex parte U. S., 242 U. S. 27.

36 Ex parte U. S., 242 U. 8. 27.

37 McKie v. Rose, 140 Fed. 145, affirmed C. C. A., 145 Fed. 584.

88 Commissioners of Santa Fe County v. Territory of New Mexico ex rel. Coler, 215 U. S. 296, 54 L. ed. 202.

39 Commissioners v. Sellew, 99 U. S. 624, 25 L. ed. 333. But see U. S. v. Labette County, 7 Fed. 318.

40 U. S. v. City of Elizabeth, 42 Fed. 45.

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