Daily Davenport Democrat. [volume] (Davenport, Iowa) 1864-1874, 1868-02-13

tne '<s. t'..h IN terms, authorizes this
'.'"s -: ,,riss OF mandamus, IL cases
49, NV The principles and ussges q
- ,c sny courts appointed OF persons
t.ii;nr Office under the authority Of he
United States ii Stat. at Large. 81
Neither state courts nor state officers are
named IN the clause, and the argument is.
that the authoritg to issue the writ does not
extend 10 any courts or persons except
thosc enumerated. Erpressio nnius cot ~
clusio olierius. Particular consideration
OF that point, Losever, is unnecessary,
NJ there Ia no application 20 this c'us' lut
any such writ. Examination on the ,eco'"'
even for a IN ,ment, will show tha' the sp-
nl;r,,;op for the writ in this case was 10
~. .;,cuit court. and that the case Was
h,o, ,hs hare by writ OF error TO the Judg-
80, ~ that court But this court cannot
,.,u. the writ Of mandamus in any case in
the exercise Of original jurisdc. on, - no
such power 10 conferred by the Consti;u
don. Direct decision Of this court In the
case OF Marbury " Madison, Cran., It's,
vas that the clause Of the thirte enth section |
Of the judiciary act referred to by the de- |
PENDANTS. 90 far % Il processes TO authorize |
| this court to issue tho writ TO persons hold |
| ing office under the United Statef other |
than judicial officers, vas not warranted by
the Constitution, because il contemplated
the exercise Of original jurisdiction in .
case other than those enumerated ia tho
instrument.
Second proposition Of the defendants Is,
that the fourteen nth section OF the judiciary
act does not confer the power upon the fed
eral courts to issue the writ to . State Off
Ger in any case. They argue that it does
not authorize those courts 10 issue it at all,
Is it 10 not one of the wrts named in ths
section, and is specially provided for, as
appears in the preceding section. Nothing,
however, 10 better settled than the rule that
the circuit courts in the several States may
issuc the writ Ia all cases where il may be
necessary, agreeable to the principles and
usag = - law, TO the sxssetss o. soer re-
spective jurisdictions. Such was the con.
i rsesien given TO tho fourteenth section Of
. the judiciary act at the same time that the
last clause Of the preceding section, sxesp,
Il ~ applied 10 judicial officers, WAS held 10
. 10 unconstitutional and void, and that con.
+ struction has been followed TO the present
r tins. --( Aclntire '. Wood, 7 Gran, 504,
i McClung ~. 6ilimap, Q Wheat, COL. Oonk
70 lin Trea, 16l.
!. None Of The circuit courts in the severn
It States can issue the writ ~ An exercise o.
Of court, but they may issue il whenever It il
he necessary, sgrssabiy to the principles aet
10 usages Of Law, TO the exercise Of their prop
SO er jurisdiction, and their judgments in susl
cases may be rs-examinsd in this court, Of
he writ Of error, under the twenty second sec
W zion Of the judiciary act. Objections to tn
he Jurisdiction Of the circuit court, and OF thi
nd court, are therefore ovefrulsd.
TO vi. Before proceeding 10 consider ID
tie operation and efeos OF the injunction Issue
H. by the State court, il becomes necessary
M examine more closely into the source, nj
ed ture, and operation Of federal process, an
ol- the jurisdiction and power Of the circu
The courts in the several States Circuit couY
in were created by the act Of Congress-, und'
,gs which the Judicial system Of the Unite
the States was organised, but the act made l
ut. provision for the forms Of process. Foru
on, OF processes in the federal courts were re-
tor ulated by the act Of Congress, which vi
urt passed i've DAYS later.--tl Stat. at Larg
de- 93)
ate Writs and processes issuing r on a circ.
the court were required by that act to bear I,
lied test of the Chief Justice Of the Suprer
urn Cour to be under tho seal of the c,u
pom and TO be signed by the Clerk. By the &c
aim ond section of the act, II Was provided I'll
the forms of wris aud executions,
nty and the modes OF process, in suits at col
to mon law, should be the same
his were then used in the Supreme Courts
or the States. Subsequent act adopted sn
'cs etantially those provisions, and made the
we'd peimanent.-U Stat. NJ Large, 27G.) Leg
icy, ,n.cl OF those enactments was, that Co
om- grcss adopted the forms OF writs aud Ell
the cuio.s, and the modes Of process, Is tn
liz | md nd ,s,t ha nf
ent States. Tor use in ito several circuit court
der Modes of process, aud forms Of process
in were in use in the States Ut that perio
other than such a. wsrc known 1t commc
llso law understood in the Engliah couvs
/ il Radical changes had been made in some
i . the States, not only the forms Of mes
"a process. aud the rules Of pleading, but
uty the modes of process in enforcing jud
Of msnt, as was we'll known 10 Congress VIII
min the Jude AIRY and process acts were passc
anne Executions, 1t is admitted, may be issu
en- by the circuit court, bot the power Of su
tho courts to issue the other writs necessary
the the exercise of Jurisdiction, is equally Gle
for with the single restriction that the vi
ally and the mode Of process, must be agre,
q . bio to the principles and usages Of la
nds Usages of law, and not Of the common ID
UNI II will DO observed, are the words Of I
lble, principles and usages Of law as known a
lint understood in the State courts at the d
mot oil that enactment.
Forms OF process, meene and final o
,dsr the modes OF process varied in essent
, ON particulars from the principles and usae
ned OF the common law, and in many cai
.ail they were different in tho different Stat,
lars lf, then. Congress, in the very septen
: Of IN which it gives appellate jurisdiction o.
Re STATE courts, expressly denies to this cou
hey the rig0t to Issue the writ Of mandamws
I OF State courts and State officers, while
red gratis il in cases Of federal courts and Il
ty, eral officers, did Il intend in the next q
10y tion TO authorize The inferior courts, viii
Ion have no appellate jurisdiction Whatever ov
,ck any State tribunal, to issue mandamus
hat State courts or to State oficsrsi Or did
Of intend that while the Supreme Court itss
was forbidden, both in its appellate o.
nts original jurisdiction, to issue . mandam,
he to State officers. that court might effect q
err same purpose BY ordering the circuit ceus
in . do Nf This would be ~ ineonsistsnc
nd Of which thsss b 10 other like instance i
t., the statute, Aad which IL u varisscs Wit
Il the care and skill which are spparer
nd in all its parts. This view could b We
no supported, If the occasion justified il, By q
~ sAsususssou VI Ill Suo ieEl0toSt00 Of o0o
or period showing the jealousy with which th
i'm rights Of the states and the state court
The were guarded.
ito II. however, the federal courts can, uude
- proper Circumstances, take coatrol Of thss
1t officers for the purpose Of compelling Shsr
ic- to levy taxes, il 10 incontrovertibls that th
10. power OF the state cours ever such o61eess
m and over the subject Of their tax, 10 % ful
en- and complete ~ that Of the federal court
by can possibly Be. I,is. indeed, . concession
he TO say that the jurisdiction Of the feeders
he courts 10 concurrent with that Of the Stat
an courts.
d. In the casss now under consideration it j
At conceded that the State courts had issue,
he their injunction after due course Of legs
on proceedings, in which the taxpayers wcr
he complsinants aud the supervisors were de
cd PENDANTS, before any application vas mad
H. 10 the federal courts for Q mandamus.
de In order to prevent such conflicts .
he threaten to grow out of the matter bsfor