New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1858-01-01

The Case OF the schooner Susan.

The Case OF the Schooner Susan.
This case in which the owners petitioned for a Wi
Of mandamus to compel the Collector of the port 0
Mobile to grant clearance to their vessel for Sal
Juan, was finished on Tuesday last in the u S Dis
trict Court Of Mobile. The application made On tn,
previous day for rule nisi to show cause WY tn,
Collector refused the clearance was resisted by th,
District Attorney on the following grounds:
LIST. The motion for a rule nsi is not sidebar mo
ton and grantable OF course. Notice OF subj a mo
ton is necessary and there would be no eason fol
the service Of notice If the party notified hsd no rgh
TO contest.
But apart from this consideration the principle !.
familiar and well settled, that the motion for rule
facie case.
Such : the practice in Alabama-e5 pa,fe Jones'
l. A. R.l5 Such is also the practices Of the Supreme
Court q the United States. Er parte Taylor IA
Howard3.
3D. The affidavit OF the petitioners entirely fails tc
disclosed prima facie case.
The broad assumption OF the affidayit or petition
is, that 1t within the jurisdictbnal powers Of cir
cult court the United States TO issue the writ OIL
mandamusp public officer Of the United States to
compel the performance of asTpposed ministerial act
The law hs been settled tothe contrary by uni
form series decisions made by the Supreme Court
OF the Unitd States. These decisions assert and
definitely fnhe following principles
lst That be power to issue mandamus in the
United State Circuit Courts purely statutary power
the creatre OF federal legislation and entirely
separate anedistnct from the scope and incidents Of
the same VT at common law.
I'd. Thathe act Of 1883, which confers that power
on the Circuit Court, has specifically resisted its
else to ceswhere the writ is required to aid fur
Their its prifiction and,
I'd. Tat necessary consequence, il cannot be
issued x nblic officer TO control him in the per.
iormanc otsny Official duty whatsoever. This would
be asserting original jurisdiction by the writ and not
using inn aid or furtherance Of Jurisdiction already
acquire.
The lstrict Attorney proceeded to quote numer.
Gus auhqrIes in support of the ground that as the
law nV stands, the Circuit Court of the United
Statesor the District of Columbia alone and except
lively possesses the power to issue the writ Of manda
mus ina proper case, (tbat is where the act refused
Is puhy ministerial,) to an officer of the United
States
1t flows from those principles and decisions that
the cte presented by the petitioners is one Of which
this clr has jurisdiction and hence cannot assert
it by suing the rule nisi
HoI Percy Walker and Robt. Smith, ESQ.,, on be
halt the petitioners replied, taking the ground as
to theiJst objection that the simple facts set forth
IN theetition established prima facie case. As to
the usdction OF the Court they contended that the
Constitution of the country vested the Judicial power
in onGupreme Court, and in such inferior courts as
the Ogress may from time to time ordain and es.
tabsk it is the duty Of Congress- them to vest the
Jgdlcla power OF the United States, as laid down 10
the Costtuton and 1t Is their duty TO vest the whole
power. The language, il imperative as to one part,
is impative as to all. Again, the judicial power is
delegad by the Constitution in the most general
terms, I'D may, therefore, be exercised by Congress
under very variety of form of appellate or original
jurisdiction,
The wit Of mandamus will lie, said Mr.. Walker,
" where he nquiry has been caused by the omission
or commission of purely ministerial act and as the
case betole usis purely ministerial act-as it is an
act which blythe law of the land, the Collector was
bound to Reridm II there had been no infringement
Of the law by be applicant say mandamus will
justly lie to eotpel the Collector to show cause for
such proceedhg on his part There is also law
Of Congress not in force which says that the Circuit
courts snail maze their practice writ and order of
proceedings, aFee with that pursued in the State
Courts. -
The Tribune fports the substance of the decision
rendered by thepourt as follows:
u would havebeen more satisfactory to the public
the Collector instead Of resisting the rule nis had
consented 10 maze return and show cause WHY he
refused TO grant clearance but the District Attor
ney has though otherwise, and has accordingly
pressed tue wanpf jurisdiction in the court to grant
sucn motion. hat his own view of the source of
the authority oflhe Circuit Courts conceded with
That presented hYMr Smith /; that the Constitution
by It's Inherent e invested the Circuit Courts with
an judicial powe not particularly restricted to the
Supreme Court hat if the question now under can
sderatlon was prfented to him for the first time as
an original questRn he would be disposed to think
tnat the court hq jurisdiction. He regretted that
,he case mad comp before him in its present shape:
ne would nave prderred the rule to have issued and
pe Coiiector TO laye set FORTH by his answer, the
reasons Tor his adon but the series OF authorities
cited by the Dstrft Attorney in which the Supreme
court had directypassed upon the question: left him
no option and he fas compelled whatever his private
opinions mlgnt bd to decide in conformity with the
ueeislohs OF the Supreme Court. He considered il an
extremely dangerqs thing that Executive officer
should he vested with power 10 stop the whole com.
merce OF the coltry and that to say the least
oil 1t, It was potter, the exercise of which in the
hands OF an ambitious man, might lead to very dis
astrous consequences. Bat, however this might be
nothing was lett t1hm by the action of the Supreme
Court OF the unitd States in the current of the de-
cisions cited, but 10 decide conformaby Herewith.
lie, therefore, Refused the motion.
Regarding the clrreetness of this decision we have
nothing TO say Tie Judge evidently acted from a
sense of duty, ana deplored the necessity of be
coming partyto an act arbitrary and despotic in
the highest degee, or rather depored his Inability to
prevent it. 1t Is indeed, as he says, a dangerous
thing to clothethe executive officer of the Govern
ment with sucla power but it seems that President
Buchanan does not think so, at least is ready to
exercise it upora very tritling occasion.