United States Circuit Court under the general removal act.3 Many cases, civil in form, have been adjudged to be of a penal or criminal character. So an action of a civil nature cannot be retained in a State court by dressing it in a criminal garb, or beginning it in a criminal court. Cases of a criminal form have been held to be of a civil nature.5 scribed is recoverable as a punish- | Kansas v. Zeibold, 123 U. S. 623, ment for the doing of acts made 8 Sup. Ct. 273, 31 L. 205, criminal by the statute. The State were brought to enforce a crimhas no other purpose than to re-inal law, and were penal in charcover a penalty for a violated law, and thereby secure obedience to it." Indiana v. Alleghany Oil Co., 85 Fed. 870, 873. 3" An action to enforce a penalty, whatever may be its form, is one of a criminal nature. As such, within the removal act, it is not a removable case." Iowa v. Chicago, B. & Q. R. Co., 37 Fed. 497, 3 L. R. A. 554. Hunt v. United States, 166 U. S. 424, 17 Sup. Ct. 609, 41 L. 1063; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. 239; Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. 746; United States v. Shapleigh, 12 U. S. App. 26, 4 C. C. A. 237, 54 Fed. 126; Indiana v. Alleghany Oil Co., 85 Fed. 870, quoted in note 2; Moloney v. American Tobacco Co., 72 Fed. 801; acter, though civil in form, and should have been remanded to the State courts. But the question was not raised. It appears from the arguments reported that the attorneys for the State erroneously assumed that the suits were civil suits within the removal statute, because they were civil in form. As the question was not raised in argument, nor considered by the Courts, so far as appears from the opinions, these decisions cannot be considered as authorities in substantial conflict with the cases heretofore cited in this section. 5 Illinois v. Illinois Cent. R. Co., 33 Fed. 721, which was an information in the nature of a quo warranto filed in the criminal court of Cook County, Illinois; Cases cited in Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. 482, the suit in Ames v. Kansas being of the same nature in a civil Texas v. Day Land & C. Co., 41 form. Fed. 228; "A quo warranto information is United States v. Mexican Nat. R. a criminal proceeding only in name Co., 40 Fed. 769; and in form; in its nature it is Bank v. Indiana, 1 Blackf. 267, 272 Ferguson v. Ross, 38 Fed. 161, 3 purely a civil proceeding." State L. R. A. 322; Iowa v. Chicago, B. &. Q. R. Co., (omitted from s. c., 12 Am. D. 234). 37 Fed. 497, 3 L. R. A. 554; United States v. Poyllon, 27 Fed. Cas. 608, 1 Car. Law Repos. 60. It is clear that the cases of Sometimes a quo warranto proceeding is a criminal proceeding in its nature as well as in its form, as in a suit to enforce a forfeiture of the defendant's property for a viola § 51. A United States Circuit Court has no jurisdiction, and can acquire none by removal, of an original suit for a writ of mandamus. But such Circuit Court may, in a proper case, grant a mandatory injunction, and, therefore, may take jurisdiction of a suit for such an injunction upon removal.-The term "suit of a civil nature" does not include any suit that was of a prerogative character in England in 1789, when the original judiciary act was passed. A mandamus was originally a prerogative writ only, and it had not lost its prerogative character when that statute was enacted.1 But, as said by Justice Bradley and repeated by Judge Baker, it "has come to be in many cases, and in most States, a private suit, brought for the purpose of enforcing a tion of law, and hence is not re- | ground of diverse citizenship where movable. one of the parties is a citizen of a territory." § 51. Pennsylvania v. Western U. Tel. Co., 1 Dauph. Co. Rep. (Pa.) 141. It is said in the Fed. and C. C. A. head-notes to Place v. Illinois, 18 U. S. App. 724, 16 C. C. A. 300, 69 Fed. 481, that "A quo warranto suit to test the defendant's title to office in a corporation organized under the laws of the State in which the suit is brought is not removable on the ground that the defendant and the relator are citizens of different States." The reporter seems to the writer to have missed the point of that case. The defendant appears from the report to have been a citizen of the territory of Arizona and not a citizen of a State at all. This qualification should be added to the end of the head-note quoted: แ "when the defendant is not a citizen of a State but is a citizen of a territory." Compare post § 121 and notes. A better head-note to the case would be this: 1"At the time when the act [of 1789] was passed it [a mandamus] was a high prerogative writ, issuing in the King's name only from the court of King's Bench, requiring the performance of some act or duty, the execution of which the court had previously determined to be consonant with right and justice. It was not, like ordinary proceedings at law, a writ of right, and the court had no jurisdiction to grant it in any case except those in which it was the legal judge of the duty required to be performed. Nor was it applicable, as a private remedy, to enforce simple common law rights between individuals. The power to issue a writ of mandamus as an original and independent proceeding, does not, then, belong to the Circuit Courts." Bath County v. Amy, 13 Wall. 244, 20 L. 539; Indiana v. Lake Erie & W. R. Co., 85 Fed. 1. 2 Dissenting opinion in Rosenbaum v. Bauer, 120 U. S. 450, 7 "A suit is not removable on the Sup. Ct. 633, 30 L. 743; private right." These changes in State laws, however, have not enlarged the jurisdiction of the United States Circuit Courts. The general jurisdiction of the United States Circuit Courts never has extended to a proceeding for an original writ of mandamus.3 An application for a mandamus is not a suit of a civil nature, within the meaning of the removal acts.4 Indiana v. Lake Erie & W. R. | Cas. 355, 1 Hall Law J. 429, BrunCo., 85 Fed. 1. ner Col. Cas. 249, 5 Hughes 1); Fuller v. Aylesworth, 43 U. S. App. 657, 21 C. C. A. 505, 75 Fed. 694; 8 There are a few special statutes conferring upon United States Circuit Courts jurisdiction to issue writs of mandamus in the cases enumerated in such statutes. One example of the exercise of this power is Hall v. Union Pac. R. Co., 11 Fed. Cas. 268, 3 Dill. 515, 6 Chi. Leg. News 307, 8 Am. Law Rev. 775, affirmed in Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. 428. These special statutes do not enlarge the jurisdiction of the United States Circuit Courts by removal from State courts, but affect their original jurisdiction only. The right of removal depends upon the general statute, ante § 7. 4 This doctrine is firmly established: Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. 743, affirming Rosenbaum v. Board of Sup'rs, 28 Fed. 223, 11 Sawy. 620; Heine v. Levee Com'rs, 19 Wall. 655, 22 L. 223; Denton v. Baker, 48 U. S. App. 235, 24 C. C. A. 476, 79 Fed. 189; Shepard v. Tulare Irr. Dist., 94 Fed. 1; Indiana v. Lake Erie & W. R. Co., 85 Fed. 1; In re Forsyth, 78 Fed. 296; In re Vintschger, 50 Fed. 459; United States v. Pearson, 32 Fed. 309, 24 Blatchf. 453; American Union Tel. Co. v. Bell Telephone Co., 1 Fed. 698, 1 McCr. 175; Sanford v. Portsmouth, 21 Fed. Cas. 363, 2 Flip. 105, 6 Cent. Law J. 147, 2 Month. Jur. 14, 6 N. Y. Wkly. Dig. 335; Smith v. Jackson, 22 Fed. Cas. 575, 1 Paine 453; United States v. Smallwood, 27 Fed. Cas. 1129, 1 Chi. Leg. News Graham v. Norton, 15 Wall. 427, 321, 2 Am. Law. T. Rep. U. S. Cts. 21 L. 177; Riggs v. Johnson County, 6 Wall. 166, 18 L. 768; McClung v. Silliman, 6 Wheat. 598, 5 L. 340; McIntire v. Wood, 7 Cranch 504, 3 L. 420 (overruling Gilchrist v. Collector of Charleston, 10 Fed. 109, 1 Leg. Gaz. 47; United States v. Union Pac. R. Co., 28 Fed. Cas. 341, 2 Dill. 527. "If not a suit of a civil nature, within the meaning of the act of 1789, it cannot be one within the meaning of the same language in the act of 1875. A mandamus, The rule that the United States Circuit Courts cannot, under the general statute, take jurisdiction of an original suit for a writ of mandamus, cannot be evaded by bringing therefore, is not a suit of a civil nature, within the meaning of any provision of the act of 1875, and is not removable under it." Rosenbaum v. Board of Sup'rs, 28 Fed. 223, 11 Sawy. 620. This reasoning applies with equal force to the removal of mandamus proceedings under the act of 1887-8, ante § 7. The question is elaborately discussed by Judge Baker in Indiana v. Lake Erie & W. R. Co., 85 Fed. 1, and this conclusion was reached by him: "A proceeding for an original writ of mandamus, commenced in a State court, is not a suit of a civil nature at law or in equity, within the meaning of the act of March 3, 1887, or of the act of August 13, 1888, for the re-enrollment of the former act; and therefore it is not removable, under the provisions of those acts, from a State court into a Circuit Court of the United States." There are a few cases in which jurisdiction upon removal in mandamus proceedings has been assumed without questioning whether they were suits of a civil nature. New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S. 135, 26 L. 96 (decided by Justice Harlan who afterwards dissented in Rosenbaum v. Bauer); Delaware v. Delaware & A. Telegraph & Telephone Co., 47 Fed. 633, affirmed by Circuit Court of Appeals, Delaware & A. Telegraph & Telephone Co. v. Delaware, 3 U. S. App. 30, 2 C. C. A. 1, 50 Fed. 677; Illinois v. Rock Island & P, R. Co., 71 Fed. 753; Washington v. Northern Pac. R. Co., 75 Fed. 333; Indiana v. Lake Erie & W. R. Co., 83 Fed. 284. It is clear that all these cases should have been remanded to the State courts because not "of a civil nature," as that term is used in the removal acts and the decisions above cited. One of them was afterwards remanded. Indiana v. Lake Erie & W. R. Co., 85 Fed. 1. So there are a few Circuit Court cases in which the removability of mandamus proceedings has been asserted, on the ground that they are of a civil nature, although these cases admit that such suits cannot be originally brought in the United States Circuit Courts. Colorado v. Colorado Cent. R. Co., 42 Fed. 638; Erwin v. Walsh, 27 Fed. 579, 23 Blatchf. 535; Washington Imp. Co. v. Kansas Pac. R. Co., 29 Fed. Cas. 360, 5 Dill. Tennessee v. Whitworth, 22 Fed. 489. 75; Tennessee v. Whitworth, 22 Fed. 81 (both decided by Justice Matthews who likewise afterwards dissented in Rosenbaum v. Bauer); Missouri v. Bell Telephone Co., 23 Fed. 539; The case of Erwin v. Walsh is based upon Washington Imp. Co. v. Kansas Pac. R. Co.; and both cases are, in effect, overruled by Rosenbaum v. Bauer, afterwards decided by the Supreme Court. Colorado v. Colorado Cent. R. Co., in the form of a suit in equity, an action that in substance is a suit for a mandamus.5 6 The United States Courts can issue writs of mandamus "which may be necessary for the exercise of their respective jurisdictions." But this incidental power to issue writs of mandamus to make effective the jurisdiction of the United States Courts, does not make removable any mandamus cases begun in State courts." A Circuit Court of the United States, as a court of equity, though decided after Rosenbaum v. Bauer, with which it is in direct conflict, does not refer to it, but is based on the overruled case of Washington Imp. Co. v. Kansas Pac. R. Co. These cases are, therefore, without value as precedents at the present time upon this question. But if these cases were correct as applied to the removal act of 1875 before its amendment, they would not be controlling under the act of 1887-8, for the reason, hereafter discussed (§ 63), that jurisdic- | tion by removal is now limited to cases of which the Circuit Courts are given original jurisdiction by amended §1 of the act of 1875, ante § 6. In one case it was held that a mandamus proceeding, begun by railroad commissioners to compel a railroad company to comply with an order to elevate its track, was not removable, for that it was an exercise of the police power of the State. Parsons v. Marye, 23 Fed. 113, this objection was ignored by the Circuit Court, the remedy by mandamus having been taken away, Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91, 27 L. 468; but its judgment was reversed by the Supreme Court upon another question. Marye v. Parsons, 114 U. S. 325, 5 Sup. Ct. 932, 29 L. 205. Parsons v. Marye, supra, was followed in Norfolk Trust Co. v. Marye, 25 Fed. 654; but these cases have little, if any, value as precedents since the decisions of the Supreme Court in Ex parte Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. 216; Smith v. Bourbon County, supra; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. 972, 34 L. 304. 6 Rev. St. U. S., § 716. The instances in which this power has been exercised are far too numerous for citation here. Perhaps the case in which the subE.ject is the most elaborately discussed is Woodruff v. New York & N. R. Co., 59 Conn. 63, 20 Atl. 17. 5"The objection is one of substance, and not merely of form. It cannot be waived, and it cannot be ignored." Smith v. Bourbon County, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. 73. In Riggs v. Johnson County, 6 Wall. 166, 18 L. 768. 7 No suit for a writ of mandamus that may be necessary for the exercise of the jurisdiction of a United States Court, can properly be brought in a State court; and a |