Const states-to and by the Constitution of the United States, such portion of it Porrer to coerce as was necessary to coerce the courts, officers and agents of the ns of Nate Gov general government was withdrawn from the states, and conferred on reserved in the federal sovereignty. Here the power lay dormant, until Congress should act. On the Legislature was imposed the duty to give it effect; Conan. it was wide as the land, and extended to every portion of it; and Congress's onf by the judiciary act of 1789 (section 13) Congress attempted to in- deful attempt vest the Supreme Court of the United States with the power to issue to confert was writs of mandamus to persons holding office under the authority of the United States. But the Constitution having restricted this court definte by for act of 1789 час to the exercise of certain original powers, and this not being amongst on Sup Ch-Kild them, it was holden, in Marbury v. Madison, 1 Cranch, 137, 2 L. Unconst! 1803 Ed. 60, so much of the act was void. The decision was made in 1803; up to that time, Congress and the country did not question In 180! Congr that a law existed, proper and necessary to give effect to the prerogative, through the instrumentality of this court, and that it was properly vested in the highest tribunal in the land, exercising a when 2° Dutch thot what conferred porsion jurisdiction coextensive with our whole territory. So the matter conferred f Supr. ing the circuit court for the District of Columbia. And the ques- Idence neprob stood, when the act of the 27th February, 1801, was passed, organiz tion is, did Congress, by implication, confer, or intend to confer, this high prerogative, within the ten miles square, on the circuit court? That concurrent power with the Supreme Court was intended to be given it is difficult to believe. * * * It is admitted, and was so decided in McIntire v. Wood, that none other of the Circuit Courts of the United States, holden by the judges of the Supreme Court, have the power claimed for the court in this District, and that throughout the twenty-six states of the Union this high prerogative writ cannot be exerted, because Congress, since the decision in 1803, in the case of Marbury v. Madison, has not seen proper to vest it in these inferior tribunals; nor is it matter of surprise, when we recollect to what extent the executive departments would have been subjected to the judicial power. Should we, then, by doubtful implication and a strained construction, apply this highest of judicial powers, in its nature broad as the Union, to this ten miles square? That the power can only be maintained to exist by implication, and not by express enactment, is admitted on all hands. It never was attempted to be conferred, in express terms, save on the Supreme Court; and is the construction that invokes it for the circuit court of this District a strained one? The tenth section of the repealed act of the 13th of February, 1801, declares "that the circuit courts then established shall have, and are hereby invested with, all the powers heretofore granted by law to the Circuit Courts of the United States, unless otherwise provided by this act." There is no repealing clause to the act. The section. quoted refers directly to the fourteenth section of the act of 1789, for the powers common to all the Circuit Courts of the Union. They Congr. haonthron to other Cuc Ch have stood unaltered, and been recognized, with slight exceptions, as the sole powers by which the jurisdiction of the Circuit Courts has been enforced, from the year 1789 to this time. It is insisted, however, that the jurisdiction conferred on the circuit court by the eleventh section of the repealed act of the 13th of February, 1801, is much broader than that given to them by the eleventh section of the act of 1789; that the act of 1801 covers the whole ground of the Constitution. This is certainly true; but the fifth section of the act of the 27th of February, 1801, declaring what matters shall be cognizable in the circuit court for the District of Columbia, confers jurisdiction quite as comprehensive. Its cognizance (or jurisdiction "to hold plea") extends to all crimes and offenses, and to all cases in law and equity, provided the defendant be found in the district. Thus, as the eleventh sections of the act of 1789 and the 13th of February, 1801, each have reference to the exercise of jurisdiction, in suits or actions between litigant parties, or over matters in some form brought before the court to try and ascertain a contested right, it would be a most unnatural construction to hold (as I think) that the phrase "cognizance of all cases in law and equity” authorized the court to assume the high power of coercing by mandamus one of the Secretaries, or the Postmaster General, to the performance of some specific public duty, in case of an ascertained right, by force of the strong arm of sovereign power, because he was a public officer; and who was not a suitor in court, or party to a case in law or equity. * * * The truth, there can be little room for doubt, is that Congress has been unwilling to expose the action of the government, in the administration of its vast and complicated affairs, and its officers, who have charge of their management, to the danger and indignity of being coerced and controlled, at the ill-defined discretion of the inferior courts, by the writ of mandamus, and that after the decision of Marbury v. Madison, in 1803, holding that the Supreme Court had not the power thus to coerce an officer of the United States, it has been permitted to lie dormant, awaiting the action of the Legislature. The supposition is rendered highly probable, when we consider the delicacy its exercise would necessarily involve, and the difficulty of vesting so high and extensive a power in the inferior courts, and especially, in those of this District, in a modified and safe form. Such being my own opinion, I think the order awarding the mandamus against the Postmaster General should be reversed, for want of jurisdiction in the court below to issue the writ. Judgment affirmed.55 55 It was held in United States v. Schurz, 102 U. S. 378, 393, 394, 26 L. Ed. 167 (1880), that the revision of the statutes of the United States did not affect the jurisdiction of the Supreme Court of the District of Columbia to issue writs of mandamus. а A were thas auth to issue mand onferard of its in enca = pendy by tree oh jn hasbeen alto on other gods S. 1171, 172. 459 BATH COUNTY v. AMY. Error to the Circuit Court for the District of Kentucky; the case The eleventh section of the judiciary act of 1789, enacts that "the Circuit Court shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law, * * * between a citizen of the state where the suit was brought and a citizen of another state." The fourteenth section of the same act, referring to certain courts of the United States, including the Circuit Courts, enacts: "That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." * * * With those statutes in force, the Legislature of Kentucky incorporated, A. D. 1852, the Lexington & Big Sandy Railroad Company. By the charter of the railroad the county courts of the different counties, through which it was to run, were authorized to subscribe to the stock of the road, and to pay their subscriptions by borrowing money, making the money borrowed payable in the way in which the county courts should deem most advisable. The interest on all such sums borrowed was to be provided for in like manner, provided that all taxes laid to pay either principal or interest should be sacredly appropriated to such purpose and no other. A subsequent act required the county courts to issue bonds, and to proceed to levy, assess, and collect a tax to pay the interest thereon, according to the true intent and meaning of the previous act. The county of Bath subscribed $150,000, and issued one hundred. and fifty bonds of $1,000 each, payable thirty years from date, with interest semiannually, for which coupons were annexed. And the company, having indorsed them, sold and put them into circulation. The county court levied the tax and paid the interest for five years, and then stopped payment. In this state of things one Amy, of New York, being the holder of eighty-two of the bonds, with the overdue and unpaid coupons, in November, 1866, made a written demand upon the justices, who composed the county court of Bath county, requiring the court forthwith. to levy the necessary tax to pay his coupons, and notified to each of the judges that, if they did not do so, he would on the second day of the next term of the Circuit Court of the United States, sitting in the district, move that court for the writ of mandamus requiring them to do it. No tax was levied; and at the next term of the Circuit Court, Amy accordingly filed an affidavit in the nature of an information, $716 RS. setting forth specifically his case, and concluding with a prayer for a mandamus requiring the tax to be levied. The court granted a rule against the county to show cause why the writ should not issue. The county came and craved oyer of the bonds and coupons, which was had, upon which it moved the court to discharge the rule, and also filed a response to the rule setting forth eleven points of defense. By agreement of counsel a general traverse of the facts set out in the response was entered on the record, and the law and facts submitted to the court for trial and decision. Upon the trial, the court found the issues for the plaintiff, and gave judgment awarding a peremptory writ of mandamus. To reverse this judgment the county brought the case here; the chief ground of the argument of their counsel, Messrs. M. Blair, J. G. Carlisle, and J. B. Beck, being that under the fourteenth section of the act of September 24, 1789, the Circuit Court of the United States had no jurisdiction to issue a writ of mandamus, there having been no previous judgment of the court in favor of the party holding the obligations, and no previous attempt made by it to enforce their payment by its ordinary process. Mr. Justice STRONG delivered the opinion of the court.50 It must be considered as settled that the Circuit Courts of the imit on Circ Ct form United States are not authorized to issue writs of mandamus, unless to issue mared Spelt out 1. Eleventh 8 this they are necessary to the exercise of their respective jurisdictions. Those courts are creatures of statute, and they have only so much of the judicial power of the United States as the acts of Congress have conferred upon them. The judiciary act of 1789, which established them, by its eleventh section, enacted that they shall have original cognizance, concurrently with the courts of the several states, of “all suits of a civil nature at common law, or in equity," between a citizen of the state in which the suit is brought and a citizen of another state, or where an alien is a party. While it may be admitted that, in some senses, the writ of mandamus may properly be denominated a suit at law, it is still material to inquire whether it was intended to be embraced in the gift of power to hear and determine all suits at common law, of a civil nature, conferred by the judiciary act. At the time when the act was passed it 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. Were there nothing more, then, in the judiciary act than the grant of general authority to take cognizance of all suits of a civil nature at common law, it might 56 Only a portion of the opinion is printed. well be doubted whether it was intended to confer the extraordinary powers residing in the British Court of King's Bench to award prerogative writs. All doubts upon this subject, however, are set at rest by the four-yourleenth§ teenth section of the same act, which enacted that Circuit Courts shall have "power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary to the exercise of their respective jurisdictions and agreeable to the principles and usages of law." Among those other writs, not doubt, mandamus is included; and this special provision indicates that the power to grant such writs generally was not understood to be granted by the eleventh section, which conferred, only to a limited extent, upon the Circuit Courts the judicial power existing in the government under the Constitution. Power to issue such writs is granted by the fourteenth section, but with the restriction that they shall be necessary to the exercise of the jurisdiction given. Why make this grant if it had been previously made in the eleventh section? The limitation only was needed. This subject has heretofore been under consideration in this court, and in McIntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420, it was unanimously decided that the power of the Circuit Courts to issue the writ of mandamus is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. The court said: "Had the eleventh section of the judiciary act covered the whole ground of the Constitution, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under laws of the United States, and the fourteenth section of the act would sanction the issuing of the writ for such a purpose. But, although the judicial power of the United States extends to cases arising under the laws of the United States, the Legislature have not thought proper to delegate the exercise of that power to its Circuit Courts, except in certain specified cases." And in McClung v. Silliman, 6 Wheat. 601, 5 L. Ed. 340, this court said, when speaking of the power to issue writs of mandamus: "The fourteenth section of the act under consideration [the judiciary act] could only have been intended to vest the power * * * 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." In other words, 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 doctrine asserted in both these cases was conceded to be correct by both the majority and the minority of the court in Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181. The power to issue a writ of mandamus as an original and independent proceeding does not, then, belong to the Circuit Courts. * * Applying this rule to the present case, it is decisive. The relator's |