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party to impeachment, as for a high misde- 2. Because, if he is entitled to it, a man. meanor. If such be the character of the act, damus commanding the judges of the district it is in vain to contend that it can be valid. and circuit courts of Louisiana to restore him

3. Is the remedy by mandamus the appro- to it, is not the proper mode of ascertainpriate legal remedy?

ing his right. In White's case, 6 Mod. 18, an application 3. Because, if he is entitled to it, and if a was made for a mandamus to restore the party mandamus is a proper remedy; yet this court, to the place of clerk of the company of butch- under the limitation of its powers by the Coners, and the case of an attorney of an inferior stitution and laws, has no authority to issue court was cited, in which the mandamus had that writ in such a case and for such a pur• been issued, but Holt, Chief Justice, said that pose. case differs. 1. Office of attorney concerns I. The office of clerk of a district court of the public, for it is for administration of jus. the United States is a public office created by tice. 2. He has no other remedy. The case law for a public benefit; its duties are defined thus recognized bears a strong and complete by law, and the mode in which the incumbent analogy to that at bar. The office of clerk is to be appointed is expressly designated by nearly concerns the administration of justice, law. It does not depend on usage or custom. and the party has no other remedy. If any The Constitution requires (art. 2, sec. 2) the writ of quo warranto would lie in Louisiana, it mode of appointment to inferior officers to be must be brought in the same court before the designated by law. same judge who has committed the wrong in By the third section of the Act of the 24th the original case. An assize is equally out of September, 1789, 1 Story's Laws, 54, there is the question, and is not only obsolete in Eng to be a district court of the United States in land, but utterly impracticable here. Man- each district, the judge of which is to be called damus was awarded to restore one to the office the district judge. By the seventh section of of steward of a Court Leet, but from which he the same law (7 Story's Laws, 56), the district had been displaced for his affection to the courts are to appoint clerks for their respective king. T. Ray. 18. On motion for a man- courts; the clerk for each district court is to be damus to restore an attorney, the court was at clerk of the *Circuit Court in the same [* 244 first equally divided, (T. Ray. 57); but it was district; and the clerk is to take oath and give subsequently allowed. Ibid. 94. In Dighton's bond before he enters on his office. By the case, T. Ray. 188; 1 Vent. 77, a mandamus eighth section of the Act of 26th March, 1804, 243*) *was prayed to restore a town clerk, 2 Story's Laws, 936, a district court was es. but refused, because by the terms of the char. tablished in the territory of Orleans, to con. ter, the town possesses the absolute power of sist of one judge, "who shall appoint a clerk." turning him out. This, however, was thought By the third section of the Act of 8th April, so monstrous a grievance that the court advised 1812, 2 Story's Laws, 1225, the State of Loui. to have the patent repealed. In Dew v. The siana was formed into a district, and a district Judges of the Sweetspring District Court, 3 court established there, the judge of which Hen. & Mun. 1, mandamus was held, after full "shall appoint a clerk." By the Act of 3d argument, to be the appropriate remedy to re- March, 1823, 3 Story's Laws, 1920, Louisiana store a clerk who had been superseded by an was divided into an eastern and western disirregular appointment. In 3 Devereaux the trict, with a district court for each; though the same point was solemnly adjudged.

same person was to be judge of both. By the If the remedy be appropriate, this is the only Act of 3d March, 1837, 4 Story's Laws,-, the tribunal by which it can be awarded. By the eastern district of Louisiana is made part of provisions of the Judicial Act, the clerk of the the Ninth Circuit; and it is provided that "the District Court becomes the clerk of the Cir. Circuit Court, and the judges thereof, and the cuit Court. The record shows that the as- District Court, and the judges thereof, are sociate judge of this court who presides in the to have like powers as in other circuits and Louisiana Circuit Court, refused to recognize districts." the validity of the act of the district judge, or In the year 1837, Judge Lawrence was duly to receive the clerk whom he had attempted to appointed and commissioned as district judge appoint. In consequence of the disagreement for the eastern district of Louisiana. On the of the two judges, there is no clerk. No busi. 18th May, 1838, he did, as district judge, apness is or has been transacted in the Circuit point John Winthrop clerk of the District Court; the government and individual suitors Court for that district, by a commission under are unable to roceed in their causes; no case his hand. On the 19th May, 1838, Mr. Wincan be brought up to this tribunal, and the throp took the oath and gave the bonds rewhole appellate jurisdiction of this court is quired by law, and entered upon the duties of suspended during this extraordinary state of the office. affairs. Unless this court interpose, such a Thus, according to all the provisions of law, state of things must remain; a mandamus is Mr. Winthrop is now clerk of the District prayed to both courts, and we considered each Court; and under the seventh section of the us a necessary exercise of the appellate power Act of 24th September, 1789, is also, ipso facto, of this tribunal, and in accordance with the for. clerk of the Circuit Court in the same district. mer practice of this court. Ex-parte Burr, 9 On what ground, then, does the petitioner Wheat. 529; Ex-parte Crane, 5 Peters, 190. claim this office? It is this, that on 21st

Mr. Gilpin opposed the rule to show cause. February, 1834, Judge Harper, at that time This rule ought not to be granted:

district judge, appointed the petitioner clerk 1. Because the petitioner is not entitled to l of the court. Now, as it is admitted that no the office.

person but a district judge can appoint a clerk

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of the District Court, and as the appointment | modes by which appointments to all offices are made by the present judge is asserted to be il to be made; these are by elections, by the legal, the conclusion must be that the appoint- President and Senate, by the President, by the ment of a clerk once made cannot be revoked courts of justice, and by the heads of departo or superseded by the court making it. This ments. It also designates out of all officers is the only ground on which the petitioner whose appointment is thus provided for, but can sustain his right to this office.

five classes whose terms shall be of a certain This position is denied, because the express duration, which cannot be lessened unless by words of the law vest in the District Court the the death, voluntary resignation, or impeachpower of appointing a clerk at any time; be- ment of the incumbents. These are representacause this appointment is similar in character tives in Congress, who shall hold their office for to others which are unquestionably superseded a term of two years; the President and Viceby new appointments; and because every min. President for four; the senators for six, and isterial or executive office, is, ipso facto, termi. the judges “during good behavior." The ir nated by a new appointment legally made of a resistible inference from this is, that by desig. competent officer, unless otherwise provided by Dating certain officers of whose terms it abso. express law.

lutely fixes the duration, it meant to lay down i. By the words of the several acts of Con- no such rule in regard to any others. gress, this power of appointment is vested in An ambassador to a foreign government, or the court and the judge for the time being. a secretary of one of the executive departe There is no restriction or limitation to it. It is ments, holds his office under the same general neither greater nor less than other powers vested power of appointment, when vested in the in the court or the judge. He has power” President, as a clerk of court does when it is to appoint a clerk, as he “has power” by the vested in the court. The Constitution has not words of the law to order books to be pro- *made the term of one more or less in- [*246 duced, to grant new trials, to punish contempts, dependent of the appointing power than the or to make rules and regulations. Cannot acts other. It has annexed to the power of appoint245*] done by virtue of those powers be re- ment the same rights in one case as in the othvoked or superseded by a new exercise of the er. More properly speaking, it annexes the same power? That will not be denied. These same duties. The power of appointment is a powers are discretionary; to be exercised by trust to be exercised for the public welfare; it the court and the judge, according to such dis- is the duty of the appointing power to select at cretion, at any time; and they may, therefore, any time the person best qualified to fill the be so exercised, even though they should oper- office; he has no right to avoid its exercise, if ate to revoke or supersede previous acts. There he believes it to be essential to the general is nothing which limits or restricts the present good. The fitness of the officer may depend judge, because a former one has acted under on other circumstances than his own merits, as the same power.

is strikingly the case with ambassadors of for. 2. Nor is there anything in the nature or eign diplomatic agents with whom it may often character of this power of appointing a clerk, happen that at particular conjunctures, public as vested by law in the district judge, which expediency may require the selection of one makes it different from the appointing power man in preference to another, without contrastvested in other persons; and in whose case, iting their individual merits. The appointing is not denied that its exercise supersedes a pre- power is bound to act upon these causes, so as vious appointment. The, acts of 1804, 1812, justly to perform his trust. If in so doing he and 1823, which authorize the district judge to supersedes a previous appointment, or removes appoint á clerk, also authorize the President to a previous incumbent, that is an unavoidable appoint an attorney and a marshal. It will result, but it would afford no excuse for the not be contended that the latter are irrevoca- neglect of a high trust. ble; yet there is no distinction whatever in the Nor does this view of the constitutional duty grant of power. An appointment of an attor of the appointing, power go to pardon or exney by a former President does not take from cuse any impropriety in its exercise. On the the present executive the power to appoint a contrary, by imposing the duty of selecting new one: why, then, should the act of a for the proper person at every time, it places the mer judge restrict the actual incumbent performance of that duty under more strict Either both are perpetual, or both may be su- supervision. Wrongfully or corruptly, or imperseded. In an Act passed on the 3d March, properly to exercise it, becomes, in this light, 1831, 4 Story's Law8,-, the district judge

an official misdemeanor. Unquestionably, a Louisiana is “authorized to appoint an in- judge who should be governed by favoritism or terpreter to the District Court.” It will hardly corrupt motives in performing one branch of be contended that such an appointment can. his constitutional functions, would be equally not be superseded by the court; yet the power amenable to the laws as if he were so in disgiven in that case is no broader than in regard charging another. His responsibility is the to a clerk.

same whether he exercises the power to ap. 3. There is nothing in the act of Congress point an officer or the power to punish a con. conferring this power of appointment which in tempt; to grant a new trial, or to do any other terms forbids its termination within a limited act which under the laws he “has power” to time; and it is a settled principle, arising out do. Misdemeanor in one case would afford as of the Constitution and laws of the United good ground for impeachment as in the other. States, that unless there be such a prohibi. If these positions be true, it then follows tion, every ministerial or executive office is, ipso that, under à fair construction of the Constitufacto, terininated by a new appointment legally tion, the appointing power, when not limited, is made. The Constitution prescribed the several' to perform its duties at the time and manner

deemed best for the public good; but strictly damus is not the proper mode of ascertaining responsible to the highest tribunal for an hon- it. This is not a case for a mandamus, acest discharge of those duties and strictly recording to the principles and usages of law. sponsible, also, to private individuals, for 80 1. A mandamus can only be issued to a perusing it as not to interfere with their legal son or inferior tribunal, which the court issuing rights.

it has a right to control, in the particular in. And such has been the uninterrupted prac stance. It is a high prerogative writ. It is tice under the Constitution for fifty years. an order from a superior to an inferior tribunal, Has it ever been doubted that the President when the inferior neglects a duty which the may recall an ambassador when he chooses, or superior is bound to see performed. It is never change the heads of departments? Is it de granted against a judge of the court that issues nied that the heads of departments may re- it, as would be the case here, were this rule al. move or supersede the clerks in their respec. lowed against the judge of the Circuit Court tive offices. By what reasoning, then, could a of Louisiana. It is never granted against a different practice be sustained in regard to the judge of the higher courts of common law. In courts of law, when the Constitution confers the case of Audley v. Joyce, Popham, 176, it in the same sentence the same powers upon is spoken of as a flower of prerogative, vested them as upon the President and the heads of in the King's Bench, to be * used in con- (* 248 departments ?

trolling municipal corporations. In Rex y. So generally has this principle been admit. Baker, 3 Burr. 1285, 1267, it is said that it is ted, and so uniform has the practice been, that to be exercised only when absolutely necessary, out of the innumerable cases in which public and then in virtue of a general supervising 247*] *officers have been superseded or re- power. In The Rioters' case, 1 Vernon, 175, moved by a new exercise of the appointing and again in Lawlor v. Murray, 1 Sch. & Lepower, very few have become subjects of ju- froy, 75, 79, the Court of Chancery declared dicial examination. Whenever they have been they would not presume to issue it to the Chief 80, this exercise of the appointing power has Justice of the King's Bench. In Bridgman v. been judicially recognized. In the case of The Holt, Show. Parl. Ca. 117, the judges of the Commonwealth v. Sutherland, 3 Serg. & Rawle, King's Bench remonstrated against a manda148, and in that of The Commonwealth v. Bus- tory process from the House of Lords, as sier, 4 Serg. & Rawle, 451, the Supreme Court trenching upon their rights; since it was comof Pennsylvania decided that the general power pelling the action of those who by the law of of appointment, vested in the governor, au- the land had a right to exercise their own thorized him to remove an incumbent wherever judgment. In some instances it has been isthe time for the continuance of the office was sued by a higher court of record to an inferior not fixed. In the case of Bowerbank v. Morris, one, directing it to perform some strictly minWallace, 119, it is held that such removal may isterial act; but even these instances are few in be made either by express notification, or sim- number, and its exercise in common law cases ply by appointing another person to the same is found to be chiefly confined to municipal office. The case of Avery v. The Inhabitants of corporations, courts of sessions, and such tri. Tyringham, 3 Mass. 160, cited to sustain a dif- bunals. Brooks v. Ewers, 1 Strange, 113; Ex. ferent doctrine, arose out of the long estab- parte Amherst, T. Ray. 214; Ex-parte Morgan, lished usage in New England which regards | 2 Chitty, 250. the relation between the minister and parish In Pennsylvania, the Supreme Court, which is in the light of a contract, to be limited by ex one of general appellate jurisdiction, has repress agreement, or if not, only to be dissolved fused to say whether it will in any case issue for some good cause, or by consent of both par- a mandamus to a court of common pleas. The ties. Even at common law, a custom for the Commonwealth v. The Court of Common Pleas, appointing power to remove ad libitum, where 3 Binney, 273; The Commonwealth v. The Court the term was not fixed, or the incumbent held of Common Pleas, 1 Serg. & Rawle, 195; Morat will, was always held to be a good custom. ris v. Buckley, 8 Serg. & Rawle, 211. Rex v. The Mayor of Coventry, 2 Salkeld, 430; In New York, the Supreme Court has indeed Rex v. The Wardens of Thame, 1 Strange, 115; assumed a general supervisory power over othRex v. The Mayor of Cambridge, 2 Shower, 70. er courts, similar to that of the King's Bench

If a full expression of the Legislature of the in England; but even they have seldom, if ever, Union on this important part of the American exercised this power of mandamus, except in Constitution is to be regarded by courts of jus. cases of clear ministerial duty, and chiefly tice as an authority, we have that also deliber- against town officers, etc. Sikes v. Ransoni, 6 ately, given, fully sustaining the right of the Johns. Rep. 279. appointing power to remove, where no express

Upon these principles, this is no case for a provision exists, and declaring that right to be mandamus. There is neither the high superiorincidental to the power of appointment. The ity in the one tribunal, nor inferiority in the debate in the House of Representatives on the other; nor the evident right of control in the bill "to establish the

department of foreign af- particular case which is necessary to justify fairs,” and vote on 22d June, 1789, Journal of it. There is no precedent for it in the judicial Congress, Vol. I. p. 50, have always been re- decisions of courts in England or any of the garded as conclusive in regard to the opinions States; and as was said by the Court of King's of those who framed the Constitution.

Bench in Rex v. Newcastle, 3 Barn. & Adolph. The result then is, that Mr. Winthrop, being 252, it ought to be refused where there is no duly appointed, the petitioner is superseded precedent for the exercise of such a power. and removed. He has, therefore, no legal right 2. A mandamus can only be issued to a per. to the office to which he asks to be restored. son, or inferior tribunal, when the act ordered

II. But if he has a right to the office, a man. 'to be done is ministerial, not discretionary.

1830

248

In Foot v. Brown, 1 Strange, 625, the Court In Louisiana there are eight district courts, of King's Bench refused a mandamus to com- from which there is an appeal to the Supreme pel a corporation to proceed to an election, be- Court. The district courts appoint their own cause it was discretionary with the corpora clerks, and the Supreme Court "has power" to tion. In Giles's case, 2 Strange, 881, they said issue all mandates necessary for the exercise that where justices of sessions had a discretion of its jurisdiction over inferior tribunals. 1 ary power, a mandamus would not be granted. Digest of La. Laws, 295. In the case of Winn In Rex v. Gray's Inn, 1 Douglas, 353, a man- v. Scott, 2 La. Rep. 89, the Supreme Court damus to compel the benchers to admit a bar said they could not issue a mandamus except rister was refused. In Rex v. Exeter, 2 East, to aid their appellate jurisdiction. In Louis. 462, a mandamus to compel the archbishop to College v. The State Treasurer, 2 La. Rep. 395, admit an advocate of the Archer's Court was they refused to direct a public officer to do an refused. In Rex v. Gloster, 2 Barn. & Adolph. act relative to which he was invested with 163, where the bishop refused to confirm a discretionary power. In The State v. (*250 249*] deputy-registrar, who *then applied for a Dunlap, 5 Martin, 271, they refused to direct mandamus, the Court of King's Bench said a district judge, by mandamus, to restore to there was no mode of forcing a person, who office a clerk of the District Court whom he has a discretionary power, to exercise it;" and had removed, though they disapproved of the they added: “Suppose the bishop returned rea. removal. sons which we thought insufficient, what course The Supreme Court of the United States, in could we take.” And the cases of Rex v. Flock. The United States v. Lawrence, 3 Dall. 45, said wood, 2 Chitty, 251, Ex-parte Morgan, 2 Chitty, they would not compel a district judge to de250, and Rex v. Wilts, 2 Chitty, 257, all show cide according to any judgment but his own. that the Court of King's Bench will never con. In Marbury v. Madison, 1 Cranch, 171, they trol inferior courts in matters of judgment. said that where an officer was to exercise exec.

The Supreme Court of New York in Wilson utive discretion, any application to control his v. Albany, 12 Johns. Rep. 414, said that, "wher conduct would be rejected without hesitation. ever a discretionary power was vested in an In M'Cluny v. Silliman, 6 Wheaton, 598, they officer, and he had exercised that discretion, refused to interfere with a register of a landthey would not interfere, because they could office acting within the limits of his office. not control, and ought not to coerce, that dis- The principle, therefore, is settled beyond cretion.” In Gilbert's case, 3 Cowen, 59, the question, that where the inferior tribunal has a same court refused a mandamus to require the discretion, and is to exercise its judgment in Court of Common Pleas to strike out certain the act to be done, there a mandamus cannot conditions which it had thought proper to an. i be issued. In the present case the duty is nex to one of its orders. In Ex-parte Johnson, clearly discretionary; it is one requiring the 3 Cowen, 371, the same court refused to como exercise of judgment; it is in no sense ministepel the Court of Common Pleas to hear charges rial; it is either judicial, if regarded as an act against a justice of the peace.

of the court, or it is executive, if considered as The Supreme Court of Pennsylvania, in The the act of an officer, vested by the ConstituCommonwealth v. The Court of Common Pleas, tion and law with the power of appointment. 3 Binn. 273, said that "they could not compel

3. A mandamus cannot be issued to restore an inferior court to decide according to the a person to an office which is not a permanent dictates of any judgment but its own. In The one-never to an office determinable at pleasCommonwealth v. Cochran, 5 Binn. 103, they ure. In Draper v. Blaney, 1 Levinz. 291, Pepsaid they could only direct an inferior court to pis's case, Vent. 342, and Dighton's case, Vent. act according to the best of its judgment. In 82, a mandamus was refused to restore a town The Commonwealth v. County Commissioners, clerk who had been removed—the corporation 5 Binn. 536, they refused to direct the com- being vested with the power to appoint, withmissioners to allow an account. In The Com-out any limitation as to the tenure of the of. monwealth v. Clarkson, 1 Yeates, 48, they re

fice. fused to direct the commissioners of bank- 4. A mandamus cannot be issued unless the ruptcy to give the bankrupt a certificate, al. petitioner has no other legal remedy. though they thought him entitled to it. In In Rex v. Street, 8 Mod. 98, the Court of The Commonwealth v. The Court of Common King's Bench refused a mandamus to direct Pleas, 1 Serg. & Rawle, 187, they refused a the old churchwardens to deliver up the parish mandamus to compel the Common Pleas to books to their successors, because the latter admit an attorney. And in Austin's case, 5 might try their right to them at law on a Rawle, 203, where a court of common pleas feigned issue. In Rex. v. Chester, 1 Maule & had struck several attorneys from the rolls, it Sel. 103, the same court said they would not was necessary to obtain an act of Assembly to grant a mandamus where another remedy was give the Supreme Court jurisdiction over the open to the parties. In Marbury v. Madison,

i Cranch, 169, this court said that a party apThe Supreme Court of Virginia do not es

plying for a mandamus must be without any tablish a different principle in Dew v. The

legal remedy. Sweetspring's Court, 3 Hen. & Mun. 1, cited either by an information in the nature of a

In this case the petitioner can try his right, by the opposite counsel; for there the appoint- quo warranto, or by an action for money had ment of the clerk did not belong at all to the and received, or by assize. inferior court. The appointment was vested In the case of The People v. New York, 3 entirely in the Superior Court, and all the in- Johns. Cases, 79, it is held that a mandamus ferior court had to do was to take the security is not to be granted to admit a person to office, -a duty clearly ministerial

where another is in by color of right. The

Peters 18.

case.

proper remedy, say the court, is by an infor- this court power “to issue writs of manmation in the nature of a quo warranto. damus in cases warranted by the principles and

In Rex v. Jotham, 3 Term Rep. 675, it was usages of law;" but that enactment was solheld that a mandamus was not to be granted emnly decided in Marbury V. Madison, 1 even to restore to office a person previously ad-Cranch, 176, and in Ex-parte Crane, 5 Peters, mitted, because he could try his right by an ac- 193, to be contrary to the Constitution, as an tion for money had and received. And the cases exercise of original jurisdiction. of Harcourt v. Fox, 1 Shower, 616, Smyth v. *2. Nor can it be exercised by virtue of (* 252 Latham, 9 Brigham, 692, and Avery v. Tyr. its appellate jurisdiction; for the restoration 251"] ingham, 3 *Mass. Rep. 160, all show of a clerk to office is in no sense an appellate that an action of assumpsit for the fees or proceeding. It is held, in Marbury v. Madison, salary of an office, is the proper mode of as. 1 Cranch, 175, that an appeal is a resort to certaining the right of the party claiming it. this court "to revise and correct the proceed

The action of assize, though out of use, is in ings of the court below in a cause already in. all respects consistent with our general prac. stituted." In Wishart v. Dauchy, 7 Cranch, tice of introducing (somewhat simplified in 110, it is said there are two modes of doing form) the direct modes of action established by thisma writ of error in common law cases, to the common law. It allows to both parties a re-examine the decision in point of law, and trial by jury; gives damages to the injured in appeal in civil law cases to review the law party, and restores him to the office if unjustly and fact. In Davis v. Braden, 10 Peters, 287, deprived of it. The Supreme Court of New it was held that in order to bring up a division Jersey, in Farley v. Craig, 3 Green, 218, recoof opinion between the judges of a circuit court ognize it as the proper mode "to recover before this court, the point on which they diseisin of an incorporeal hereditament, and dam- vided must have "arisen on the trial of the case ages for its deprivation.” It is invariably so below.” The Judiciary Act, 1 Story's Laws, recognized by the courts of common law in 60, establishes the same rule: it confines the England. In Webb's case, 8 Coke, 47, it is appellate jurisdiction of this court to appeals held that a man may have an assize of an and writs of error; and says, too, that these office, ut de libero tenemento, at common law. must be from final decrees and judgments. In In Vaux v. Jefferen, 2 Dyer, 114, an assize the present case, there is no cause instituted lies to recover the office of philizer in the Court of which the proceedings are to be revised and of Common Pleas. In Coveney's case, 2 Dyer, corrected; no decision on a point of law to be 209, the prerogative writ was refused to restore re-examined; no law and fact to be reviewed; the president of a college to his office, because no division of opinion on the trial of a cause he could have assize at common law. In Rex below; no appeal or writ of error from a final V. Westminster, Comb. 244, a mandamus to decree or judgment. How, then, can this case admit a bailiff was refused because he could come within the appellate jurisdiction of the have assize. In an anonymous case, 6 Mod. court. 18, Holt said that a mandamus ought not to 3. Nor is it in any respect necessary to the go where a party could have assize; and in Rex exercise of the appellate power of this court, v. Baker, 3 Burr. 1268, the same point was that the petitioner should be restored to the ruled. In Bridgman v. Holt, Show. Par. Cases, office of clerk. There is no writ of error or 111, we have a direct case in point, of an as appeal waiting below for the want of this ofsize brought by a person claiming to be law. ficer. There is no allegation that the restora. fully clerk of the court.

tion of the petitioner is required for any such It is therefore submitted that, whatever may cause. There is a clerk doing all the business. be the legal right of the petitioner to the office The mandamus is not sought for on this he claims, this is not a case in which a man- ground, but avowedly for the purpose of trying, damus would be granted according to the prin in this mode, the title to the office. This court ciples and usages of law; because this court has, in numerous cases, decided where a man. has not such a control over the inferior court damus is or is not necessary to the execution as to warrant it; because the act complained of of its appellate powers: in no one of them has was not ministerial, but discretionary; because it been held to be necessary in such a case as the office in question is not a permanent one, this. . Out of the seventeen applications made to endure for a definite period, and because to this court since its establishment, to issue the party complaining has other and more ap- writs of mandamus, but four have been granted. propriate remedies if he has been unjustly re. The decision of the court in these four cases of moved.

The United States v. Olmstead, 6 Cranch, 116, III. But if the case were one in which a Livingston v. Dorgenois, 7 Cranch, 517, Ex-parte court, vested with unlimited power, would in- Bradstreet, 7 Peters, 634, and The New York terfere by mandamus, still this court, deriving Insurance Company v. Wilson, 8 Peters, 291, their authority from the express grant of the after elaborate argument, was that the SuConstitution and the laws founded on it, can preme Court would issue a mandamus to a not issue it in such & case.

district judge, directing him, l. To execute a 1. This court has no power to issue a man. decree of his court in an admiralty case, where damus to restore a clerk of the Circuit or Dis. execution had been delayed on account of the trict Court, by virtue of its original jurisdiction. extraneous interposition of a State law. 2. To That jurisdiction is limited by the Constitution proceed to a inal judgment, and not stay proto cases affecting "ambassadors,” “public min. ceedings indefinitely. 3. To re-instate à suit isters" and "consuls," and those "wherein a dismissed on motion, after issue joined, so that State is party." This case is neither of these. the parties might have a final judgment. 4. To It is true, the 13th section of the Act of 24th sign a judgment on the record where it had September, 1789, 1 Story's Laws, 69, did give' been previously recovered and entered accord

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