MR. JUSTICE BLATCHFORD delivered the opinion of the court.
On the 13th of October, 1885, Albert S. Rosenbaum brought an action in the Superior Court of the city and county of San Francisco, in the State of California, against John A. Bauer, treasurer of the city and county of San Francisco. The complaint set forth the issuing of certain bonds, called Montgomery Avenue bonds, by the Board of Public Works of the city and county of San Francisco, under an act of the legislature of California, approved April 1, 1872, Stats. of 1871-2, c. 626, entitled "An act to open and establish a public street in the city and county of San Francisco, to be called `Montgomery Avenue,' and to take private lands therefor." The act provided for the creation by taxation of a fund for the payment of interest on the bonds, and of a sinking fund for their redemption; and enacted that whenever such treasurer should have in his custody $10,000 or more belonging to the sinking fund, he should advertise for proposals for the surrender and redemption of the bonds. The complaint alleged that the plaintiff owned twenty-one of the bonds of $1000 each; that the treasurer had in his hands over $12,000 belonging to the sinking fund; that the plaintiff had exhibited his bonds to the treasurer and demanded that he advertise for proposals for the surrender of bonds issued under the act; that he refused so to do; and that no part of such bonds had been paid. The complaint prayed for a judgment that the defendant, "as treasurer of the city and county of San Francisco, be commanded to advertise for the redemption of Montgomery Avenue
Three days afterwards, the plaintiff filed a petition for the removal of the suit into the Circuit Court of the United States for the District of California, on the ground that the plaintiff was a citizen of New York and the defendant a citizen of California. The state court made an order of removal. The record being filed in the Federal court, the defendant demurred to the complaint, specifying as a ground of demurrer that the Federal court had no jurisdiction of the subject of the action. The case being heard on the demurrer, the court made an order, on the 18th of January, 1886, that the cause be remanded to the state court, "this court having no jurisdiction of this cause in this form." The plaintiff has brought a writ of error to review that order.
The same act provided that an annual tax should be levied on the property therein mentioned to raise money to pay the coupons annexed to the bonds, and another annual tax to create a sinking fund for the redemption of the bonds, the taxes to be levied in the manner in which other taxes are levied, that is, by the Board of Supervisors. The same Rosenbaum, being the owner of twenty-one of the bonds, and of eight matured coupons, of $30 each, attached to each bond, each coupon being for six months' interest, the first of them having matured January 1, 1882, brought an action, on the 12th of December, 1885, in the said Superior Court of the city and county of San Francisco, against the Board of Supervisors of the city and county of San Francisco. The complaint set forth that there were no funds in the hands of the treasurer applicable to the payment of any of the coupons; and that the plaintiff had demanded of the Board that it levy a tax sufficient to pay the coupons, but it had refused so to do. The complaint prayed for a judgment "against said Board of Supervisors, commanding them to levy the tax hereinabove mentioned, and to continue to levy said tax from year to year until all the interest upon said bonds, and said bonds themselves, are fully paid."
On the 21st of December, 1885, the plaintiff filed a petition
The Circuit Court, in remanding the causes, 28 Fed. Rep. 223, proceeded on these grounds: (1) That it had always been held by this court that the Circuit Courts had no jurisdiction to award a mandamus except as ancillary to some other proceeding establishing a demand, and reducing it to judgment, the mandamus being in the nature of process for executing the judgment. (2) That a proceeding for a mandamus was not a suit of a civil nature, within the meaning of any provision of the act of March 3, 1875, c. 137, 18 Stat. 470, and was not removable under it.
Prior to the act of 1875, it was well settled that the Circuit Courts had no jurisdiction to issue a writ of mandamus in a case like the present.
In McIntire v. Wood, in 1813, 7 Cranch, 504, it was held that a Circuit Court had no power to issue a mandamus to the register of a land office of the United States, commanding him to grant a final certificate of purchase to the plaintiff for lands to which he supposed himself entitled under the laws of the United States. In that case, the plaintiff's alleged right to a certificate of purchase was claimed under the laws of the United States, but this court, speaking by Mr. Justice Johnson, said, that the power of the Circuit Courts to issue the writ was confined by § 14 of the Judiciary Act of 1789, 1 Stat. 81, to those cases in which it might be necessary to the exercise of their jurisdiction. This provision of § 14 appears now in § 716 of the Revised Statutes in these words: "SEC. 716. 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
In McClung v. Silliman, in 1821, 6 Wheat. 598, a mandamus was applied for in a Circuit Court of the United States to compel the register of a land office of the United States to issue papers to show the preëmptive interest of the plaintiff in certain land. The writ was refused. In this court, the case was sought to be distinguished from McIntire v. Wood, on the ground that the parties were citizens of different states. But the court, speaking again by Mr. Justice Johnson, said that no just inference was to be drawn from the decision in McIntire v. Wood, in favor of a case in which the Circuit Court was vested with jurisdiction by citizenship under § 11 of the act of 1789. And then, in answer to the argument, that, as the parties were citizens of different states, and competent to sue under § 11, the Circuit Court was, by § 14, vested with power to issue the writ as one "necessary for the exercise of its jurisdiction," the court said: "It cannot be denied that the exercise of this power is necessary to the exercise of jurisdiction in the court below: but why is it necessary? Not because that court possesses jurisdiction. but because it does not possess it. It must exercise this power and compel the emanation of the legal document, or the execution of the legal act by the register of the land office, or the party cannot sue. The 14th section of the act under consideration could only have been intended to vest the power now contended for in cases where the jurisdiction already exists, and not where it is to be courted or acquired by means of the writ proposed to be sued out."
Consistently with the views in those cases, this court, in Riggs v. Johnson County, in 1867, 6 Wall. 166, held that a Circuit Court had power to issue a mandamus to officers of a county, commanding them to levy a tax to pay a judgment rendered in that court against the county for interest on bonds issued by the county, where a statute of the state, under which the bonds were issued, had made such levy obligatory on the county. This ruling has been repeatedly followed since, and rests on the view that the issue of the mandamus is an award of execution on the judgment, and is a proceeding
In many cases adjudged in this court since McIntire v. Wood, that case has been referred to as settling the law on the point to which it relates; as in The Secretary v. McGarrahan, 9 Wall. 298, 311; Bath County v. Amy, 13 Wall. 244; and Heine v. The Levee Commissioners, 19 Wall. 655.
In Bath County v. Amy, in 1871, (ubi supra,) the holder of bonds issued by a county in Kentucky applied to the Circuit Court of the United States for a mandamus to compel the county court to levy a tax to pay the interest on the bonds, on the ground that a statute of the state required the county court to do so. No judgment had been obtained for the interest. In Kentucky such a proceeding could have been maintained in a court of the state, without a prior judgment, and would have been there treated as a suit of a civil nature at common law, and not a mere incident to another suit. The Circuit Court awarded the mandamus, but this court reversed the judgment, holding that it was doubtful whether the writ of mandamus was intended to be embraced in the grant of power in the 11th section of the Judiciary Act of 1789, to the Circuit Courts, to take cognizance of suits of a civil nature, at common law, where the diversity of citizenship there specified existed; but that the special provision of the 14th section of the act, while, no doubt, including mandamus under the term "other writs," indicated that the power to grant that writ generally was not understood to be covered by the 11th section. Citing the prior cases, the court said: "The writ cannot be used to confer a jurisdiction which the Circuit Court would not have without it. It is authorized only when ancillary to a jurisdiction already acquired."
The same doctrine was applied, in Graham v. Norton, in 1872, 15 Wall. 427, where a Circuit Court of the United States had affirmed the action of a District Court in granting a mandamus to compel a state auditor to issue certificates as to the amount of illegal taxes paid by the applicant, the issuing of such certificates being provided for by a statute of the state. This court held that neither the Circuit Court nor the District Court had jurisdiction to issue the writ.
But now it is contended for the plaintiff in error that the Circuit Court can obtain jurisdiction of these cases by their removal under § 2 of the act of 1875. It was evidently though that the Circuit Court would have no original cognizance of them, if commenced in that court, for they were not brought in that court, although in the petition for removal in each proceeding the plaintiff states that he was a citizen of New York when it was commenced, and in the petition for removal in the first proceeding he states that Bauer was at its commencement a citizen of California, the defendant in the second proceeding being, when it was brought, a municipal corporation of California. The proceedings were evidently instituted with the purpose of removing them, for the petitions for removal were severally filed by the plaintiff three days and ten days after process was served on the defendant, and nothing was done in the state court but to file a complaint, and to serve a summons, and to take proceedings for a removal.
To maintain the jurisdiction by removal, it is contended that that jurisdiction does not depend on the original jurisdiction of the Circuit Court; that the former may exist without the latter; and that in the present case it does exist.
The only possible ground of jurisdiction in the present cases, is diversity of citizenship; for the right of action claimed does not arise under the Constitution or a law or treaty of the United States. It exists, if at all, under a statute of the state. The state is not alleged to have passed any law imparing the obligation of any contract of which the plaintiff claims the benefit, or to have deprived him of any right secured to him by the Constitution of the United States. In respect to jurisdiction by citizenship, as applicable to this case, § 1 of the act of 1875, in regard to original jurisdiction, and § 2, in regard to jurisdiction by removal, describe the subject-matter of the suit
In Gaines v. Fuentes, 92 U.S. 10, an application for removal was sustained under the local prejudice act of March 2, 1867, 14 Stat. 558, of a suit to annul a will, on the ground that the act, in authorizing the removal, invested the Federal court by that fact with all needed jurisdiction to adjudicate the case.
As this court, while §§ 11 and 12 of the act of 1789 were in force, and § 14 of that act was also in force, always held, even where the requisite diversity of citizenship existed, that the restriction of § 14 operated to prevent original cognizance by a Circuit Court, under § 11, of a proceeding by mandamus not necessary for the exercise of a jurisdiction which had previously otherwise attached, so, with §§ 1 and 2 of the act of 1875 in force at the same time with § 716 of the Revised Statutes, the restriction of § 716 must operate to prevent cognizance by removal, by a Circuit Court, under § 2 of the act of 1875, even where the requisite diversity of citizenship exists, of a like proceeding by mandamus. As was said by this court, speaking by Mr. Justice Miller, in Hess v. Reynolds, 113 U.S. 73, 79, 80, the language of the repealing clause of the act of 1875, is, "that all acts and parts of acts in conflict with the provisions of this act are hereby repealed," and the statute to be repealed must be in conflict with the act of 1875, or that effect does not follow. There is nothing in § 2, or any other part of the act of 1875, which is in conflict with, or has the effect to abolish, the restriction of § 716, just as there was nothing in § 11 or § 12, or any other part of the act of 1789, which was in conflict with, or had the effect to abolish, the restriction of § 14 of that act.
These cases fall directly within the provision of § 5 of the act of 1875, that if, in any suit removed from a state court
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE MATTHEWS, dissenting.
MR. JUSTICE HARLAN and MR. JUSTICE MATTHEWS agree with me in dissenting from the judgment of the court in this case.
It is a constitutional right of the citizens of the several states having controversies with the citizens of other states, to have a national forum in which such controversies may be litigated.
Congress, by the act of March 3, 1875, passed to determine the jurisdiction of the Circuit Courts, has declared that they shall have original cognizance, concurrent with the courts of the several states, amongst other things, of all suits of a civil nature at common law or in equity, involving over five hundred dollars, in which there shall be a controversy between citizens of different states; and that any such suit brought in any state court may be removed by either party into the Circuit Court for the proper district. This jurisdiction should be liberally construed so as to give full effect, as far as may be, to the constitutional right, as presumably within the intent of Congress. The terms "suits at common law and in equity," or "suits at law and in equity" (which is the same thing), are, in themselves, of the most general character and of the broadest signification; and this court ought not, by its decisions, to restrict their application. It is not meant by the expression "suits at common law," to confine the jurisdiction of the Circuit Courts to the old technical actions of trespass, trover, trespass on the case, debt, detinue, assumpsit, &c., but it extends to and includes any form of proceeding of a civil nature in which a legal right cognizable by the courts of common law is sought to be judicially enforced, by whatever name, under the new-fangled nomenclature adopted by the different states, the proceeding
Now, a mandamus, which was originally a prerogative writ only, has come to be in many cases, and in most states, a private suit, brought for the purpose of enforcing a private right. This is true in the two cases now before us. The appellant has a money demand against the city and county of San Francisco, and is seeking to collect it in the usual way in which such demands are collectible by the law of procedure of California. The mandamus which he seeks is the mere process for commencing his action, and is a proper process suited to his case. The city and county of San Francisco can set up any defences to the action in this form which it could do in the ordinary action of debt or upon contract. It is essentially a civil suit at law, no matter by what name it is called, — certainly as much so as were the proceedings in Gaines v. Fuentes, Hess v. Reynolds, already cited, and in Boom Company v. Patterson, 98 U.S. 403, 404, where there was an issue to ascertain the value of property taken by virtue of eminent domain. In Davies v. Corbin, 112 U.S. 36, we sustained a writ of error from this court to the Circuit Court on a judgment in a proceeding for mandamus to carry into effect a judgment for a debt. The Chief Justice there said: "While the writ of mandamus, in
In the jurisprudence of California, it has frequently been held that a mandamus is a civil action. It is only necessary to refer to the cases to show that this is a point beyond all dispute. Perry v. Ames, 26 Cal. 372; Cariaga v. Dryden, 30 Cal. 244, 246; Courtwright v. Bear River Mining Co., 30 Cal. 573, 583; Knowles v. Yeates, 31 Cal. 90; People v. Kern County, 45 Cal. 679; People v. Thompson, 66 Cal. 398.
But it is urged that the power given to the Circuit Courts of the United States to issue writs of mandamus is limited by act of Congress to certain special cases, namely, only where they may be necessary for the exercise of their ordinary jurisdiction, Rev. Stat., § 716, and that, according to the decisions of this court, in suits for the collection of money, the writ can only be used as ancillary to an execution after a judgment has been obtained in an ordinary suit. It is sufficient to say that all of these decisions, except two, relate to the law as it was before the passage of the act of 1875. That act, as we have seen, is expressed in general terms without any qualification as to the writs or process which shall be employed, and repeals any restraining effect of § 716 of the Revised Statutes if in conflict with it. The two cases to which we have referred as decided since the act are County of Greene v. Daniel, 102 U.S. 187 and Davenport v. County of Dodge, 105 U.S. 237. But the
The inference drawn from § 716, Rev. Stat., is, that as it grants power to this court and the Circuit Courts "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law," (which is rightly supposed to include the writ of mandamus,) it must be construed as denying the power to issue that writ in any other case. This conclusion might be admissible if it is restrained to the instance of the particular writ of mandamus which alone was in contemplation; that is, the prerogative writ of mandamus as known to the practice of the King's Bench in England. The object of this section of the statute was to give the courts of the United States the power to issue such a writ when necessary in the exercise of a jurisdiction in which the use of such a writ was conformable to law. But the section had no reference to mandamus as a form of civil action, as it has become in modern times, having a definite purpose and scope, and as distinct in its use, for the purpose of enforcing private rights of a particular description, as are the forms of actions known to the common law, such as assumpsit, debt, or trespass. Viewed as a civil action, authorized by the laws of the state in which the suit is brought, the jurisdiction of the Circuit Courts is established by § 1 of the act of 1875, which embraces "all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, ... in which there shall be a controversy between citizens of different states." If there be such a suit, in which, by the law of the state, the form of proceeding is required to be in mandamus, § 914, Rev. Stat., applies, which requires that "the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity
In our judgment, the cases ought not to have been remanded, and that the judgments of the Circuit Court remanding the same should be reversed.