States courts generally over the issue of writs is BOW found in the
Judicial Code, Sec. 262, 36 Stat. L. 1162.
appointed receiver of the Water Electric Light Company,
by an order of the District Court of the United States for the
''The circuit court of appeals will not issue this writ where there is
nothing to which the right to issue such a writ can be said to be
an incident." U. S. v. Sessions, 205 Fed. 502, 123 C. C. A. 570. The
same may be said of the district courts. U. S. v. Nashville, etc., R.
Co., 217 Fed. 254.
The practice in mandamus proceedings conforms in general to
the practice in common law actions. Cleveland v. U. S., 127 Fed.
667, 62 C. C. A. 393.
In Ex parte Harding, 219 U. S. 363, 55 L. Ed. 252, the question
was whether the decision of the circuit court not to remand a case
to the state court could be the subject of mandamus proceedings
in the supreme court; in other words, whether by mandamus a court
having asserted jurisdiction could be compelled to let go by this
writ, and Chief Justice White reviewed the cases in the supreme
court, reaffirming the rule that, in spite of conflicting decisions, man-
damus is not the proper remedy in such case. To so use it Would be
to usurp the function of error or appeal, and it has many times been
held that this writ can not be used for that end.
In Ex parte Simons, 247 U. S. 231, 62 L. Ed. 1094, the district
court transferred a cause of action to the equity side of the court
under an erroneous conception of the law of New York; petition was
made to the supreme court for mandamus, or that being regarded as
improper then prohibition or certiorari, whichever would be ap-
proved. Justice Holmes, speaking for the court, says that "it does
not much matter in what form an extraordinary remedy is afforded
in this case. But as the order may be regarded as having repudiated
jurisdiction of the first count, mandamus may be adopted to require
the district court to produce and to give the plaintiff her right to a
trial at common law."
For the general principles governing the issue of this writ, see
Foster, Federal Practice, 5th ed., pages 1445 to 1456, and for the
general rules of practice therein, see ibidem, pages 1461 to 1469.
Mandamus is not a writ of right, and the petitioner must come
with clean hands, as in equity. Turner v. Fisher, 222 U. S. 204.
A suit was brought in the United States district court for infringe-
ment of patent, of copyright, and for unfair competition, decree and
accounting ordered; appeal and circuit court of appeals upheld in
part and disaffirmed in part, and district court decreed accordingly
and appointed a master to proceed with the accounting. Meanwhile
in another circuit an opposite holding had been made as to the
validity of the patent in suit, and certiorari proceedings were enter-
tained by the supreme court; thereupon the circuit court of appeals
was moved to stay accounting in the district court, but refused, be-
340 SUITS AT LAW.
Division of the - District of - , pronounced in the
cause of the National Construction Company against said
Water & Electric Light Company and others. By said order
petitioner, as receiver, was authorized to sue for the debts due
said Water & Electric Light Company, and did, on the -
day of - , by leave of said court, file a bill in said cause to
collect from the city of - - the amount due from it to said
Water & Electric Light Company.
After appearance and defense made by the city of - , and
on a final hearing of said cause, petitioner, as receiver as afore-
said, recovered of the city of - the sum of - - ($ )
dollars, and the costs of said cause, as appears from a copy of
said decree herewith filed as Exhibit "A," and asked to be
taken as a part hereof, but not for copy.
Petitioner further states that the city of - - is a municipal
corporation, chartered and existing under acts passed by the
General Assembly, of the state of - , and is situated in
county, state of , and within division and district afore-
said. Under the laws of - - the real and personal property
of said municipal corporation held and used for its corporate
purposes is exempt from levy and sale by execution.
cause the case was beyond its jurisdiction and anyway no stay had
been requested in the district court; thereupon the district court
was moved on the same ground to stay the account, but refused on
the theory that conditions were right for the accounting after a
prolonged litigation, and it could not be expected to anticipate an
adverse decision in the supreme court. Thereupon a petition for a
writ of mandamus was asked, directed to both courts below to do
nothing further in the case until the certiorari proceeding might be
determined; it was refused, the court saying that it would not lie to
the circuit court of appeals, since the case was not in that court, nor
to the district court, because the writ was not intended to control
interlocutory proceedings,, as here, and it could not be used to suspend
the action of a lower court in view of the prophesied adverse holding
in a court of review. Ex parte Wagner, 249 U. S. 465, 63 L. Ed. .
Mandamus may issue from the supreme court to the clerk of a
district court upon refusal under order of the court, to compel him
to file the record in the circuit court of appeals of a case in which
the supreme court has ultimate discretionary power of review. Ex
parte Abdu, 247 U. S. 27, 62 L. Ed. 966.
See the note on mandamus in U. S. v. Lament, 39 L. Ed. 160.
But petitioner charges that said city of , by the laws of
and its charter, is authorized through and by its board of
mayor and aldermen to levy and collect taxes on all property,
privileges and polls subject to taxation for state purposes, for
the payment of judgments and decrees rendered against it, and
it is the duty of said board of mayor and aldermen to levy
and collect taxes sufficient to pay off and discharge the judg-
ment .aforesaid in favor of petitioner, and the costs adjudged
Petitioner further states that in the year 189 , the board
of mayor and aldermen of said city did levy a tax of
cents on the $100 for water rent, and cents on the $100
for lights, collected the same, or a large part thereof, and the
amount so levied and collected did become, under the contract
then existing between the city of - - and the \Yater & Elec-
tric Light Company, a fund exclusively for the payment for
water and lights under said contract, the judgment aforesaid
being for water and lights furnished under same contract. But
notwithstanding its duty in this respect, the board of mayor
and aldermen refused to pay over the amount collected of said
levy, and has refused to enforce payment to itself from certain
taxpayers of a considerable amount of the levy.
Petitioner further states that since the rendition in his favor
of the judgment aforesaid against the city of , he has,
through his attorneys, demanded payment of the same, but
the said city has failed and refused to pay any part of said
judgment or the costs incident thereto, or to make any levy
of taxes for that purpose.
Petitioner further states that he has also had execution is-
sued on said judgment, and the same was, by the marshal,
presented for payment to the officials of said city, but payment
of same was refused, and it has been returned nulla bona.
Petitioner is informed and believes that the mayor and
aldermen of the city of - - have refused and have deter-
mined not to assess or collect any taxes for the payment of the
342 SUITS AT LAW.
judgment aforesaid, and he is advised that he had no other
adequate remedy to enforce the payment of said judgment.
Petitioner therefore prays that your honor grant an order
for the issuance of an alternative writ of mandamus command-
ing and directing the city of - - to forthwith pay the amount
of plaintiff's judgment, with interest and costs, or to appear
before the court on some day to be named in said writ, and
show cause, if any there be, why a peremptory writ of man-
damus should not issue requiring a sufficient tax to be levied,
assessed and collected on and out of the taxable property within
the corporate limits of the city, to pay said judgment, interest
and costs, and requiring said judgment, interest and costs to
be paid out of the proceeds of such levy, assessment and collec-
tion, within ninety (90) days from the service of said writ;
that said alternative writ of mandamus be issued and directed
to said city of - , C. L., Mayor, and to W. S.. J. S., J. L.,
R. J., I. E., the aldermen of said city ; he further prays for such
other and general relief as lie may be entitled to in the premises.
This is the first application for writ of mandamus in tin's
cause. X- & X.,
Attorneys for Petitioner.
State of , - - County, ss.
Personally appeared before me. W. P., a notary public, W.
W., and made oath in due form of law that he is agent and
superintendent of plaintiff, is acquainted with the facts alleged
in the foregoing petition, and same are true to the best of his
knowledge, information and belief. \Y. W.
Subscribed and sworn to before me, this - - day of - ,
A. D. . W. P.,
[Seal.] Notary Public.
(1) Taken from Cleveland, Tenn., v. Cunningham, Recr., 98 Fed.
657, 39 C. C. A. 311.
As to when a writ of mandamus may issue to compel state officers
to levy a tax to satisfy a judgment obtained in the United States
court, see Knox County v. Aspinwall, 24 How. 383; Riggs v. Johnson
County, 6 Wall. 184; Louisiana v. U. S., 103 U. S. 289; Board v.
Thompson, 10 C. C. A. 154, 61 Fed. 915.
The court may order that the tax levy be distributed over a
term of j-ears where the amount to be collected is large and it
appears too much of a burden to make the entire collection at once.
Graham v. Quinlan. 207 Fed. 268, 124 C. C. A. 654; Cleveland v. U. S.,
166 Fed. 677, 93 C. C. A. 274.
In Cunningham v. Cleveland, 152 Fed. 907, 82 C. C. A. 55, it is
said that the order of the court is continuous and therefore subject
to such changes or amendments as the exigencies of the case may
require from time to time.
In Riverside County v. Thompson, 122 Fed. 860, 59 C. C. A. 70,
it is said that no notice or demand on the taxing officers is neces-
sary prior to the filing of a petition for a writ of mandamus to
compel them to levy a tax to pay a judgment which has been ob-
tained, the petition being such notice.
The order may state the amount to be collected by referring to
the judgment and need not specifically contain the statement of the
amount independently thereof. Estill County v. Embry, 144 Fed.
913, 75 C. C. A. 654.
Notice of Application for Writ of Mandamus.
To the Board of Mayor and Aldermen of the City of :
You are hereby notified that we will, on the day of
, before the Hon. C. D., at his office in the Custom House
at , apply for alternative writ of mandamus to be issued
by the district court of the United States for the - - division
of the - - district of - , against you, the city of - -, re-
quiring you to levy a tax upon all the property, privileges and
polls subject to levy, to pay and satisfy a judgment recovered
by me against you in said court, for the sum of ($ )
Dated this - - day of , A. D. .
R. J., Receiver.
r,y R. X., His Attorney.
State of - , - - County, ss.
Personally appeared before me. W. P., a notary public. W.
W.. and made oath that he. on the day of - , delivered
a copy of the foregoing notice to the mayor of the city of .
344 SUITS AT LAW.
Sworn to and subscribed before me, this - - day of -
A. D. . W. P.,
[Seal.] Notary Public.
Petition for Writ of Mandamus Directed to a Judge of an
Inferior Court to Compel Him to Allow an Appeal (1).
United States Circuit Court of Appeals for the Circuit.
A. B., Petitioner,
G. R., U. S. District Judge
for the - District
To the Honorable Circuit Judges of the United States holding
The petitioner, A. B., respectfully states that on the -
day of - - a suit was begun by him against C. D., in the dis-
trict court for the - - district of - , and was duly prose-
cuted in said court. [Here state the substance of the action or
The cause came on to be heard upon the pleadings and proof
and was argued by counsel for the plaintiff and by counsel for
the defendant and submitted to his honor, G. R., for a decree.
On consideration whereof on the - - day of - - a decree
was entered therein in the following words, to-wit : [Here
insert the order or decree sought to be reviewed.]
And thereupon on the - - day of - , your petitioner,
feeling himself aggrieved by the order of his honor, prayed
an appeal from said decree in due form of law and tendered
his bond with security thereon, which petition was filed with
the clerk of said court on the - - day of - - and thereafter
was presented to his honor for an allowance of the appeal.
And the petitioner further states that on the same day, to-wit,
on the da)- of , his honor, G. R., refused to allow
said appeal for the reason that no appeal was allowable from
said decree to the said circuit court of appeals for the cir-
cuit for the purpose of reviewing said decree.
\Yherefore, your petitioner, A. B., prays for a writ of man-
damus to issue out of this honorable court, directed to the
Hon. G. R., judge of the district court of the United States
for the district of - , sitting at , to compel said district
judge to grant him an appeal in the case of A. B. vs. C. D.,
pending on the equity side of said court, from the decree en-
tered by said court in said cause on the day of .
State of , County, ss.
I, A. B., the petitioner mentioned and described in the fore-
going petition, do hereby make solemn oath that the state-
ments contained therein are true according to the best of my
knowledge, information and belief. Those statements made
on my own knowledge I know to be true and those statements
made upon information and belief I verily believe to be true,
and I have read said petition. A. B.
Subscribed and sworn to before me this day of ,
19. B. R.,
Notary Public in and for said County.
(1) A writ of mandamus will issue to compel a court to take juris-
diction and to proceed to exercise such jurisdiction. Ex parte Brad-
street, 6 Pet. 774, s. c. 7 Pet. 634; Hollen Parker, Petitioner, 131 U. S.
221; Ex parte Parker, 120 U. S. 738; In re Hohorst, 150 U. S. 658. But
not to take jurisdiction of a case removed from a state court. In re
Pennsylvania, 137 U. S. 453. The statute, formerly 25 Stat. L. 434,
enacted Aug. 13, 1888, is brought forward in the Judicial Code, Sec.
28, and provides that the "remand shall be immediately carried into
execution, and no appeal or writ of error from the decision * *
etc., shall be allowed, and in this case the court held that such statute
rendered the remand final and conclusive against mandamus also.
It may issue to compel a judge to act but not to control his discre-
tion. Ex parte Newman, 14 Wall. 152; Ex part*; Bradstreet, 6 Pet. 774;
346 SUITS AT LAW.
Ex parte Many, 14 How. 171; Ex parte Chateaugay Iron Co., 128 U.
S. 554; Ex parte Jordan, 94 U. S. 248.
Under the act now embodied without change as to that feature
in the Judicial Code, Sec. 266, requiring that an application for
interlocutory injunction to restrain state officers from enforcing a
state law in certain cases, be heard before three judges, held that
the order made by a single judge in such case was unauthorized and
mandamus was the proper remedy to require him to vacate his order;
the statute made no provision for appeal from the action of a single
judge, and a right of appeal is nowhere given in the statutes in such
case. Ex parte Metropolitan Water Company, 220 U. S. 539, 55 L.
Ed. 575. This decision is of importance also connection with the
act of Oct. 22, 1913, 38 Stat. L. 220, requiring a hearing before three
judges on application for injunction affecting an urder of the inter-
state commerce commission.
Order Granting Alternative Writ of Mandamus.
On motion of R. J., receiver of the Water & Electric Light
Company, on petition this clay filed praying for alternative
writ of mandamus to issue against the city of - , and the
mayor and aldermen thereof, requiring them to levy taxes to
pay a judgment obtained against them in this court for S ,
notice of which motion was given on the - - day of - ,
A. D. .
It is ordered that the clerk of this court issue the alternative
mandamus according to the prayer of said petition, on peti-
tioner giving bond in the sum of $ , to be approved by the
court, and security for costs.
Alternative Writ of Mandamus to Compel Levy of Tax to
The President of the United States of America, to the City of
, and to C. L., Mayor, and W. S., J. S., J. L., R. I.
and I. E., Aldermen of said City:
"Whereas, it appears from the petition of R. J., receiver of
the Water & Electric Light Company, that by suit which he,
as such receiver, was by order of court authorized to bring in
the district court of the United States for the division of
the district of , against the said city of , he did,
after appearance and defense made by said city, and on the
day of , recover against said city a judgment for
the sum of dollars, and the cost of said cause, amounting
to the additional sum of $ , that the said city of is
a municipal corporation chartered and existing under Acts
passed by the General Assembly of the state of , and is
situated in county, and in the division of the
district of ; and that under the laws of the real and
personal property of said municipal corporation held and used
for its corporate purposes, is exempt from levy and sale by
Whereas, it is further alleged in said petition that said city
of , by the laws of the state of and its charter, is
authorized through and by its board of mayor and aldermen
to levy and collect taxes on all property, privileges and polls
subject to taxation for state purposes, for the payment of
judgments and decrees rendered against it, and it is the duty
of said board of mayor and aldermen to levy and collect taxes
sufficient to pay off and discharge the judgment aforesaid in
favor of petitioner, and the costs adjudged against it ; that
in the year the board of mayor and aldermen of said
city did levy a tax of cents on the $100 for water rent,
and cents on the $100 for lights, and collected the same,
or a large part thereof, and the amount so levied and collected
did become, under the contract then existing between the city
of and the Water & Electric Light Company, a fund ex-
clusively for the payment of water and lights under said con-
tract the judgment aforesaid being for water and lights
furnished under the same contract. But that notwithstanding
its duty in this respect the said city refused to pay over the
amount that had been so levied and collected, and has refused
348 SUITS AT LAW.
to enforce payment to itself from certain taxpayers of a con-
siderable portion of the levy ; and
Whereas, it is further alleged that since the rendition of
said judgment petitioner has demanded payment of same, but
the said city has failed and refused to pay any part of the
same or of the costs incident thereto, or to make any levy of
taxes for that purpose; that execution was issued on said
judgment and placed in the hands of the marshal, and pre-
sented by him to said city, but payment of same, or any part
thereof, was refused, and it has been returned nulla bona; and
Whereas, it is further alleged that the board of mayor and
aldermen of said city of have refused and have deter-
mined not to assess or collect any taxes for the payment of
the judgment aforesaid, and that petitioner has no other
remedy or means by which to enforce the payment of said
judgment except as prayed in said petition for writ of man-
damus commanding the city of and the board of mayor
and aldermen thereof forthwith to pay the amount of peti-
tioner's judgment, with interest and costs, or to levy, assess
and collect a sufficient amount of taxes on and out of the tax-
able property, privileges and polls within the corporate limits
of said city; and
Whereas, it has been ordered by the Hon. C. D., sitting as
judge of the district court of the United States for the
division of the district of , that writ of mandamus
issue as prayed.
You are, therefore, commanded, unless said judgment, with
interest and cost, is paid, forthwith to levy, assess and collect
on and out of all the property, privileges and polls within the
corporate limits and subject to taxation, a sufficient amount
to pay said judgment, interest and costs, and to pay the same
out of the amount so levied and collected, or to appear before
said district court of the United States for the - - division
of the district of , on the - - day of , and
show cause, if any there be, why said tax should not be levied,
assessed and collected as hereinbefore ordered.
Herein fail not, and have you then and there this writ.
Witness the Hon. Melville W. Fuller, chief justice of the
supreme court of the United States, at , in said district,
the day of , in the year of our Lord nineteen hun-
dred and .
[Seal.] B. R.,
Clerk of the District Court of the United States
for the District of .
Answer of a U. S. Judge to an Alternative Writ of Mandamus
to Allow an Appeal from an Order Refusing to confirm a
Composition in Bankruptcy (i).
United States Circuit Court of Appeals, Circuit.
United States of America, ex rel.
A. D., Bankrupt, Petitioner,
G. R.. United States District Judge
for the District of .
The answer of G. R., judge of the District Court of the
United States for the District of , to the rule upon
him to show cause why a peremptory mandamus should not
issue commanding him, in said court, to allow an appeal to
A. B., petitioner, from a decree filed and entered in said cause
, disapproving a composition proposed by said petitioner.
The respondent respectfully answers and certifies to the
honorable Circuit Court of Appeals, for the circuit :
First. That he supposes the petitioner has correctly set out
the matters appearing of record in the proceedings in bank-
ruptcy, so far as in said petition he undertakes to relate them,
but for greater certainty respondent refers to the record itself
350 SUITS AT LAW.
when produced in evidence for accurate information as to the
matters and things therein recorded.
Second. Referring to the general orders in bankruptcy No.
36, regulating appeals from courts of bankruptcy, respondent
submits whether the said petition for mandamus against him
be not vexatious and without authority of law, inasmuch as
the appeal demanded might have been allowed, or may now be
allowed, if demandable in law, by any of the judges of this
court, and presumably by the court itself.
Third. Respondent denied the appeal demanded as set out
in the petition for a mandamus, solely for the reason set forth
by him in the memorandum endorsed on the application there-
for, as found in the record of said proceedings in bankruptcy,
and appearing in the printed record of the petition for man-
damus at pages 6 and 7, and again at pages 16 and 17. Re-
spondent now submits that no appeal was or is now demand-
able in law from the said order complained of by the petitioner,
to wit, the order of the 26th day of May, 1900, disallowing
and refusing to confirm the composition offered by the peti-
tioner to his creditors, as appears by the record of the pro-
ceedings in bankruptcy.
Fourth. Respondent is advised that it is not necessary that
he should make any further or other answer to the rule afore-
said than this herein contained, nor more specifically to any
of the allegations set forth in the petition for mandamus afore-
said. And having fully answered said rule, he prays to be
hence dismissed with all proper costs.
And these are the causes and reasons which this respondent
has offered why a mandamus should not issue, commanding
him to allow said appeal. But he respectfully submits to the
judgment of the court and will enforce by order any direction
given by the court in the premises.
Respondent respectfully refers to brief of counsel for Heber
Jones filed in this honorable court, and the authorities referred
to m support and maintenance of the positions assumed by