UNITED STATES SUPREME COURT DECISIONS ON-LINE

The circuit courts of the United States have no power to issue writs of mandamus to state courts by way of original proceeding and where such writ is neither necessary nor ancillary to any jurisdiction which the court then had.

Hence, such writ, on error here, was held to have been wrongly granted in favor of a holder of county bonds, to make the county levy a tax, the creditor not having obtained judgment in the circuit court on his claim nor even put it into suit.

The 11th section of the Judiciary Act of 1789 enacts that:

"The circuit court shall have original cognizance concurrent with the courts of the several states of all suits of a civil nature at common law . . . between a citizen of the state where the suit was brought and a citizen of another state."

The 14th section of the same act, referring to certain courts of the United States, including the circuit courts, enacts:

"That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and ALL other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."

An act passed in 1813 by the Legislature of Kentucky (which state was admitted into the Union A.D. 1792) enacts:

"SECTION 2. That it shall be lawful for the person at whose instance a mandamus may be issued to traverse the truth of any one or more of the facts asserted in the return made to such writ, the traverser concluding the same by an appeal to the country for the trial of the contested facts upon which issue may have been taken by such traverse. A jury shall be empanelled and sworn by order of the court having jurisdiction thereof, subject to the same rules and regulations, and with power to such courts to superintend and control such jury by

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instructing them in points of law which may arise in the course of such trial or of granting new trials in the same manner, and to be governed by the same principles which are applicable to the trial by jury in other cases at common law."

"SECTION 3. It shall be the duty of such court, upon the result of any such finding as aforesaid, to pronounce judgment thereon in favor of either party according to law and to award judgment for the costs of suing out or defending such mandamus, as the case may be, in favor of the successful party, upon which execution shall and may be issued as in other cases."

And, finally, an Act of Congress of May 19, 1828, enacts:

"That the forms of mesne process, except the style, and the forms and modes of proceeding in suits in the courts of the United States held in those states admitted into the Union since the 29th day of September in the year 1789, in those of common law, shall be the same in each of the said states respectively as are now used in the highest court of original and general jurisdiction of the same."

With those statutes, federal and state, in force, the Legislature of Kentucky incorporated, A.D. 1852, the Lexington & Big Sandy Railroad Company. By the charter of the railroad, the county courts of the different counties through which it was to run were authorized to subscribe to the stock of the road and to pay their subscriptions by borrowing money, making the money borrowed payable in the way in which the county courts should deem most advisable. The interest on all such sums borrowed was to be provided for in like manner, provided that all taxes laid to pay either principal and interest should be sacredly appropriated to such purpose and no other. A subsequent act required the county courts to issue bonds and to proceed to levy, assess, and collect a tax to pay the interest thereon according to the true intent and meaning of the previous act.

The County of Bath subscribed $150,000, and issued one hundred and fifty bonds of $1,000 each, payable thirty years from date, with interest semiannually, for which coupons were annexed. And, the company having endorsed them, sold and put them into circulation. The county court levied clubjuris

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the tax and paid the interest for five years, and then stopped payment.

In this state of things, one Amy, of New York, being the holder of eighty-two of the bonds, with the overdue and unpaid coupons, in November, 1866, made a written demand upon the justices who composed the County Court of Bath County, requiring the court forthwith to levy the necessary tax to pay his coupons, and notified to each of the judges that if they did not do so, he would, on the second day of the next term of the circuit court of the United States sitting in the district, move that court for the writ of mandamus requiring them to do it. No tax was levied, and at the next term of the circuit court, Amy accordingly filed an affidavit in the nature of an information setting forth specifically his case and concluding with a prayer for a mandamus requiring the tax to be levied. The court granted a rule against the county to show cause why the writ should not issue. The county came and craved oyer of the bonds and coupons, which was had, upon which it moved the court to discharge the rule, and also filed a response to the rule setting forth eleven points of defense. By agreement of counsel, a general traverse of the facts set out in the response was entered on the record, and the law and facts submitted to the court for trial and decision. Upon the trial, the court found the issues for the plaintiff and gave judgment awarding a peremptory writ of mandamus. To reverse this judgment, the county brought the case here. The chief ground of the argument of their counsel, Messrs. M. Blair, J. G. Carlisle, and J. B. Beck, being that under the 14th section of the Act of September 24, 1789, the circuit court of the United States had no jurisdiction to issue a writ of mandamus, there having been no previous judgment of the court in favor of the party holding the obligations and no previous attempt made by it to enforce their payment by its ordinary process.

The argument is that the circuit court had no jurisdiction clubjuris

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until the relator had reduced his demand to judgment, and had an execution returned, "no property" thereon. But in no case has this Court decided that this was a prerequisite to the jurisdiction.

Mandamus is a common law action, so held by this Court. [Footnote 1] The act of 1813 of Kentucky, in which state the cause originated, makes the proceedings by mandamus there also a suit of a civil nature at common law, not a mere incident to another suit. The parties plead to issue. Issues of fact are to be tried by jury; issues of law by the court. Judgment is to be awarded, and execution issued thereon. This act of 1813 was in force when the Act of Congress of May 19, 1828, was adopted providing that the proceedings in suits at common law, in states admitted to the Union since 1789, shall be the same in the national courts in each of said states as are now used in the highest courts of original and general jurisdiction of the same.

Now, by the course of proceeding in Kentucky, it is not necessary that a party who has a right to have a tax levied by a county court or city council to pay his demand, should reduce the demand to judgment before applying for the writ of mandamus requiring the levy of the tax. This is settled by adjudicated cases, [Footnote 2] and that where a party has the right to have a county court levy a tax, upon their refusal, after demand, he may proceed in the first instance for the writ.

Certainly this Court, under the act of Congress of 1828, will award to the citizen of another state the same relief that the state court would give one of its own citizens in a case arising upon the statute laws of that state.