sections of the statute which confer original jurisdiction and in those which authorize removals.

142. Federal Courts May Not Under Section 24, Paragraph 1, of the Judicial Code, Entertain an Original Petition for a Mandamus.-It has always been held that a mandamus proceeding is not included within the suits of a civil nature at common law of which the Federal Courts, by section 11 of the original Judiciary Act and its various revisions, were given jurisdiction. There are two reasons for so holding. At common law mandamus was a prerogative writ. A private suitor had no right to ask for it. It was applied for by the Attorney-General. He might, if he saw fit, make such request at the instance of some individual and in reliance upon the latter's relation of the facts. The approved form of petition for the writ in many jurisdictions is "the State upon the relation of John Doe." In modern times, even where the old forms of pleading are more or less completely retained, a mandamus proceeding has become an ordinary suit which anyone may institute. A hundred years ago it still had more of its ancient seeming, even if most of its antique substance had passed away. There was, therefore, a real question in the minds of lawyers as to whether Congress intended to include mandamus proceedings within the word "suits" as used in the eleventh section. It was held that such was not the intention, because a comparison of the language of section 14 of the same Act, now section 716 of the Revised Statutes, led to that conclusion. That section reads: "The Supreme Court and the Circuit and District Courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdiction and agreeable to the principles and usages of law." It was held that the writ of mandamus was included within the writs thus described, and that the obvious purpose of the section was to give to the Courts power to issue

them as ancillary to the exercise of some jurisdiction specifically conferred upon them.1

There was doubtless a practical reason of public policy for reaching that conclusion-a reason which probably explains why the Courts have always adhered to the determination they first reached and why Congress has never authorized the Federal Courts, except in some specially enumerated cases, to entertain petitions for mandamus otherwise than in aid of their other jurisdiction.

Under our dual system of government, there are many opportunities for collisions between State and Federal authorities. It is not to the public interests that private litigants should be in a position to force them. If a citizen of one State conceived that he had the right to the exercise, by some public official of another State, of some purely ministerial function, he might go into the Federal Courts and apply for a writ of mandamus to compel that State official to do his duty. In the long run it is probably better that he be forced to seek relief of this kind from a State tribunal. Doubtless State prejudice or partiality sometimes stands in the way of his getting what he should have. If it does, it is a lesser evil than to arouse the antagonisms always so easily stirred up, when a Federal Court undertakes to direct a State officer to discharge some official duty.

Occasionally, where the writ of mandamus is used as a writ of execution, the Federal Courts have issued it to municipal officials. In this way judgments recovered against cities and counties have been enforced. The tax-levying officials of the defendant municipality have been commanded to levy a tax sufficient to pay the judgment.2

Congress has in a few special cases conferred upon the District Courts power to issue the writ as an original oneas, for example, to compel interstate carriers to furnish equal facilities to shippers.3

1 Rosenbaum vs. Bauer, 120 U. S. 453.

'Riggs vs. Johnson County, 6 Wall. 166.

Sec. 10, Act March 2, 1889, 25 Stat. 862; United States vs. Norfolk & Western R. R. Co., 143 Fed. 266.

143. What Does "Of a Civil Nature" Mean?-By the first paragraph of section 24 of the Judicial Code, the District Courts are given jurisdiction over such suits only as are "of a civil nature." The constitutional provision defining the extent of the Federal judicial power nowhere uses the word "civil" or any word of like import. Nevertheless, as was pointed out in Chisholm vs. Georgia,1 and as CHIEF JUSTICE MARSHALL demonstrated in his opinion in Cohens vs. Virginia, it is clear that, under the dual system established by the Constitution, the original jurisdiction of the Federal Courts is necessarily limited to cases of a civil nature, except when they are called on to enforce the laws of Congress. Any other construction would have extended Federal jurisdiction to criminal prosecutions against persons not citizens of the prosecuting State.

3

All the authorities bearing upon this question are fully reviewed in Wisconsin vs. The Pelican Insurance Co. The defendant, a Louisiana corporation, had carried on business in Wisconsin, and had there subjected itself to certain pecuniary penalties, for which the State in its own Courts recovered judgment for $15,000. The company had no assets within the State. Wisconsin brought as an original action in the Supreme Court of the United States, a civil suit upon the judgment. The Court said it would look through the form to the substance. The claim was in essence for a penalty. It showed that it had repeatedly held that even its original jurisdiction was confined to proceedings of a civil

nature.

144. In What Sense Does Paragraph 1, Section 24, Use the Words "At Common Law''?-What construction is to be put upon the words "at common law" as used in the paragraph now under consideration?

A suit may be a suit at common law without necessarily being a suit which could have been carried to a successful

12 Dallas, 419.

26 Wheat, 264. 3 127 U. S. 265.

conclusion in one of the Superior Courts at Westminster. The jurisdiction is not restricted to old and settled forms. The words are used in contradistinction to proceedings in equity, on one hand, and admiralty and criminal cases, on the other. It includes all suits in which legal, as distinguished from equitable, rights are to be ascertained and determined. "Wherever by either the common law or the statute law of a State a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any Court which has jurisdiction of such matters and can obtain jurisdiction of the parties."1

145. Suits Under Lord Campbell's Act Are Suits "At Common Law".-The Federal Courts, where the proper diversity of citizenship exists, can take jurisdiction of suits under the Lord Campbell's Acts of the States, although at common law no such suit could have been maintained. When the liability has been fixed by the law of one State, a Court of the United States sitting in another may enforce it; it is not penal.2

146. In What Sense Does Paragraph 1, Section 24, Use the Phrase "In Equity"?-The jurisdiction applies not only to suits at common law, but also to suits in equity. What is meant by those words here? A case in equity is a case over which at the time of the adoption of the Federal Constitution the High Court of Chancery in England would have had jurisdiction in accordance with the principles and practices then recognized and followed by it.1

147. State Legislation Cannot Limit the Equitable Jurisdiction of Federal Courts.-This jurisdiction cannot be diminished by any legislation of the States.

'Dennick vs. Railroad Co., 103 U. S. 11.

1 Dennick vs. The R. R. Co., 103 U. S. 17.

2 Texas & Pacific Railway Co. vs. Cox, 145 U. S. 604. 'Payne vs. Hook, 7 Wall. 425.

Wood & Lee were a firm, each of the partners of which was a citizen of the State of Missouri. They obtained a judgment in the State Courts of Louisiana against one Cohn, a citizen of the latter commonwealth. They filed their bill in equity in the Circuit Court of the United States for the Western District of Louisiana against Cohn, his wife and his wife's mother, all citizens of Louisiana. The bill sought to set aside as fraudulent a judgment in favor of Mrs. Cohn against Cohn; and asked that property standing in the name of Mrs. Cohn's mother and alleged to be in fact the property of Cohn, should be subject to the payment of the firm's judgments. The Court below dismissed the bill on the ground that equity had no jurisdiction, there being a well-known and adequate remedy at law. The Supreme Court said:

"We are unable to concur in these views. It is well settled that the jurisdiction of the Federal Courts, sitting as Courts of Equity, is neither enlarged nor diminished by State legislation. Though by it, all differences in forms of actions be abolished, though all remedies be administered in a single action at law, and, so far at least as form is concerned, all distinction between equity and law be ended, yet the jurisdiction of the Federal Court, sitting as a Court of Equity, remains unchanged.” * * * "That jurisdiction, as has often been decided, is vested as a part of the judicial power of the United States in its Courts by the Constitution and Acts of Congress in execution thereof. Without the assent of Congress, that jurisdiction cannot be impaired or diminished by the statutes of the several States regulating the practice of their own Courts."***"So conceding it to be true as stated by the learned Judge, that the full relief sought in this suit could be obtained in the State Courts in an action at law, it does not follow that the Federal Court, sitting as a Court of Equity, is without jurisdiction. The inquiry rather is whether by the principles of common law and equity, as distinguished and defined in this and the mother country at the time of the adoption of the Constitution of the United States, the relief here sought was one obtainable in a Court of law or one which only a Court of Equity was fully competent to give."1

1 Mississippi Mills vs. Cohn, 150 U. S. 202.