But where a et has to make its уп ` a cause & the issuance of a wont therein is near, to judgh on the cause effectual it may issue it To compel me to levy a tası topay.ajh- a substitute for ord process ofx 462 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 claim for payment had not been brought to judgment in the Circuit Judgment reversed, and the cause remanded with instructions to naudio Post Master fr.Y.- 1-i a ease iren Cucch د UNITED STATES ex rel. SEEGER v. PEARSON, Postmaster. Mandamus. vs Pot Master of N.Y. The relator alleges that he is the editor and proprietor of a newspaper periodical called "Medical Classics," and has requested the defendant, who is the postmaster of New York, to enter and transmit through the mails this publication as second-class matter. This request was refused by the defendant, and the publication was charged a higher rate of postage, as third-class matter, because held to be designed as an advertising medium. The relator denies any such pur ll cases are On appeal by the relator to the First Assistant Postmaster General, this refusal was sustained; and the relator brings this proceeding to compel the defendant, by mandamus, to receive and transmit the publication as second-class matter. BROWN, J. I am constrained, by the weight of authority, to decline to entertain this proceeding by mandamus. A long line of decisions of the Supreme Court has affirmed the broad doctrine. that the Circuit Court has no jurisdiction to issue a writ of mandamus as an original proceeding, but only as ancillary to some other proceedings or right of which it has jurisdiction. Considering that the fourth subdivision of section 629 of the Revised Statutes (U. S. Comp. St. 1901, p. 503) gives the Circuit Court express jurisdiction "of all causes arising under the postal laws" (Act March 3, 1845, 5 Stat. 739), and that the fourteenth section of the judiciary act (section 716, Rev. St. [page 580, U. S. Comp. St.]) authorizes the federal courts to issue such writs whenever "necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law," it might have been inferred, in the absence of authority, that if the relator was entitled to the relief demanded, according to the general usage and practice 57 So Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743 (1887). As to power of federal courts to issue mandamus to municipal corporations to levy taxes required for the payment of judgments, as an ancillary jurisdiction to the enforcement of judgments recovered in those courts, see Riggs v. Johnson Co., 6 Wall. 166, 18 L. Ed. 768 (1867). of the law, and if a writ of mandamus was the proper remedy for such relief, the writ might have been issued in the exercise of the proper jurisdiction of the court, inasmuch as the cause is one arising exclusively "under the postal laws." Upon repeated examination of the decisions of the Supreme Court, however, I cannot find myself authorized to treat this question as an open one. In most of the cases in which the question has arisen, the Circuit Court had undoubted original jurisdiction of the subject-matter of the proceedings, under some one or other of the express provisions of the statutes, quite as clear as is its authority to determine "all causes arising under the postal laws." Nevertheless, the right to pursue the remedy by means of an original writ of mandamus has been uniformly denied. McIntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. Ed. 340; Bath Co. v. Amy, 13 Wall. 244, 20 L. Ed. 539; Graham v. Norton, 15 Wall. 427, 21 L. Ed. 177; County of Greene v. Daniel, 102 U. S. 187, 26 L. Ed. 99; Davenport v. County of Dodge, 105 U. S. 237, 26 L. Ed. 1018; Rosenbaum v. Board (C. C.) 28 Fed. 223; U. S. ex rel. Reed v. Smallwood, 1 Chi. Leg. N. 321, Fed. Cas. No. 16,315. Without considering, therefore, in what cases, or to what extent, a review of the decision of the postmaster or of the Assistant Postmaster General, as respects the determination of the question of fact upon which the rating of postal matter depends, is either reviewable at all, or under a proceeding by mandamus (see Carrick v. Lamar, 116 U. S. 423, 6 Sup. Ct. 424, 29 L. Ed. 677), I must dismiss the application upon the ground first stated.58 58 The following cases in this collection are cases of mandamus: State v. Justices, 15 Ga. 408 (1854); People ex rel. Sheppard v. Ill. State Board of Dental Examiners, 110 Ill. 180 (1884); Illinois State Board of Dental Examiners v. People, 123 Ill. 227, 13 N. E. 201 (1887); Harrison v. People, '222 Ill. 150, 78 N. E. 52 (1906); Ex parte Sparrow, 138 Pa. 116, 20 Atl. 711 (1890); Ayers v. Hatch, 175 Mass. 489, 56 N. E. 612 (1900); People ex rel. Greenwood v. Board of Supervisors Madison Co., 125 Ill. 334, 17 N. E. 802 (1888); Allbutt v. General Council, 23 Q. B. D. 400 (1889); Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262 (1897); People ex rel. Bush v. Collins, 7 Johns. (N. Y.) 549 (1811); Gage v. Censors, 63 N. H. 92. 56 Am. Rep. 492 (1884); People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894 (1907); People ex rel. Fonda FN. 153,6x7 v. Morton, 148 N. Y. 156, 42 N. E. 538 (1896); U. S. ex rel. Roop v. Douglass,' Fr. 209, 654 19 D. C. 99 (1890); U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. 12. 32 L. Ed. 354 (1888); U. S. v. Hitchcock, 190 U. S. 316, 23 Sup. Ct. 698, 47 L. Ed. 1074 (1903); People ex rel. Raster v. Healy, 230 Ill. 280, 82 N. E. 599, 15 L. R. A. (N. S.) 603 (1907); People ex rel. Post v. Healy, 231 Ill. 629, 83 N. E. 453 (1908). ferior tribunal, bd, or or, excercising judicial functs had exceeded the ion of such tribunal, bd, or on there is no appeal, nor, we The judgh of Mech, any plam, speedy, radequate remedy 1024 The revew upon this writcannot be extended further than to determ whether the inferior betreual, bd, or or has regularly pursued the authy of RELIEF AGAINST ADMINISTRATIVE ACTION. SECTION 56.-CERTIORARI In Calef. Wret of Review 10 67-1077·11 08-10 (Part 2 The writ of certiorari is used for the purpose of bringing up for review: 2. The conviction of an inferior court of criminal jurisdiction. See, e. g., 3. The quasi judicial decisions of administrative authorities. It is only the latter application which is to be here considered. Hawkins, Pleas of the Crown, II, c. 27, one of the chief authorities for the writ, deals mainly with the second application. The best account of the writ as an administrative law remedy is an article by Prof. F. J. Goodnow on the Writ of Certiorari in 6 Polit. Science Quarterly, p. 493. SECTION 57.-SAME-AUTHORITIES AND ACTIONS SUB- BALL v. PATTRIDGE.59 (Court of King's Bench, 1666. 1 Sid. 296.) By statute Car. II it is enacted that there shall be certain Commissioners who shall have power to receive claims concerning the fens in Cambridge, Huntington, etc., and to decide the boundaries of them, and that they shall make decrees and return them in the petty bag in chancery. And motions were made several times for certiorari to remove the proceedings before the commissioners, and some were granted. But afterwards, on consideration of the statute, they resolve that no certiorari will lie. And if there shall be any [writ], it shall be procedendo, for (by THE COURT) this is a new judicature absolute in the commissioners by this new law, with which this court has nothing to do if they proceed according to the statute, for then it binds perpetually, but if they do not proceed according to statute then all is void and coram non judice, and the parties are at liberty to examine this in an action brought at common law. 59 The original report is in Norman French. of JB M clanned und They it Stat it to levy to re Orders were made by the justices of peace, for levying money, for repairing Caerdiffe bridge, by virtue of the 23 Eliz. c. 11. And was objected by Mr. Earle and Mr. Lechmore, that this court cannot in this case grant a certiorari; because it was a new jurisdiction pair whers-Relate which is reposed in the justices, and this court has nothing to inter- to erected by a new act of Parliament, the trust of the execution of meddle with it; for if they proceed according to the statute, then there is no reason to remove their orders; but if not, then what they do is coram non judice, and void. And the parties may examine the legality of their proceedings in an action; and so it was held in a case of decrees made by commissioners upon the act for the fens. 1. Sid. 296, Ball v. Partridge; Hardr. 480, Terry v. Huntington; Cro. Car. 394, Nichols v. Walker. And no certiorari lies to remove orders made by commissioners of bankrupts. Sed non allocatur. For this court will examine the proceedings of all jurisdictions erected by act of Parliament. And if they, under pretence of such act, proceed to incroach jurisdiction to themselves greater than the act warrants, this court will send a certiorari to them, to have their proceedings returned here; to the end that this court may see, that they keep themselves within their jurisdiction; and if they exceed it, to restrain them. And the examination of such matters is more proper for this court. As in the case in question; whether the act of Queen Elizabeth impowers the justices to raise money to mend wears, and to determine the doubt upon the act. As to the cases of orders made by commissioners of sewers, and of the fens, the court is cautious in granting certioraris; and first they make inquiry into the nature of the fact, and what will be the consequence of granting the writ; because the country may be drowned in the mean time, whilst the commissioners are suspended by the certiorari. But that is only a discretionary execution of the power of the court. And as the commissioners of bankrupts he said, that they had only an authority, and not a jurisdiction. * * Then exception was taken to the orders, that the money ordered to be levied was for repairing the wears, to do which they had no jurisdiction, but only to raise money for the repair of the bridge; and their authority being special, they ought to confine themselves within it. But HOLT, Chief Justice, held that, in regard that at the time of the making of the act, these wears were built as necessary to support the bridge, by virtue of the powers given by the act of the queen for rebuilding of the bridge, and were esteemed so then. and ever since, this court will esteem them accordingly still; and FR.ADM.LAW-30 Yon 51649 therefore consequential to the power for rebuilding and repairing of the bridge, and especially when they are averred to be so in the orders. And GOULD and TURTON, Justices, agreed. * * * 60 TREASURER OF CITY OF CAMDEN v. MULFORD. (Supreme Court of New Jersey, 1856. 26 N. J. Law, 49.) And reg abuellers te pave refusal It Comm", spavet recorcists The CHIEF JUSTICE delivered the opinion of the court.1 This action is brought by the treasurer of the city of Camden to wner this act to recover of the defendant the expenses of paving Pine street, in said ecoro cest. in asept city in front of the premises of the defendant. * * * 'lea Ords passed nr Whether the ordinances of a municipal corporation are subject ahh my of owners to removal and review by writ of certiorari has recently been questioned by high judicial authority; and although the point was not emurs: Gnido mooted upon the argument of this case, its importance demands conThe ard-word soft sideration. In the case of People v. Mayor, etc., of New York, 2 Hill can avail se of defen N. Y.) 11, Mr. Justice Bronson, in delivering the opinion of the Collaterally or does court said: "The powers exercised by the common council of the de remain inforce city of New York are for the most part either legislative, executive, elset aside made or judicial, and a certiorari only lies to inferior courts and officers who exercise judicial powers. If it were not for a few modern cases, succeedy. Mustion I should be of opinion that we have no authority to supervise in this way the acts, ordinances, and proceedings of the corporation of bring certiorari to pelaside theade the city of New York, or, indeed, of any other corporation, public * * or private. * All our city and many of our village corporaHere I discusses tions have been vested with very large powers within their respective limits; and, if a certiorari will lie to remove into this court an ordinance for constructing a sewer, it is difficult to see where we can stop short of reviewing all their acts in the same way, which looks to me like a great stretch of jurisdiction." In the Matter of Mt. Morris Square, 2 Hill (N. Y.) 14, it was held by the same learned court (Mr. Justice Cowen delivering the opinion) that the acts of municipal corporations, if plainly judicial in their character, may be reviewed on certiorari. But he said a certiorari to reverse a mere corporate act is without precedent, though if it should be altogether de may luogn bomgcert. 60 Only a portion of this case is printed. "There was a mistake made by the commissioners of sewers, grounded upon this: that where St. 23 Hen. VIII, c. 5, says that the commissioners in several cases there mentioned shall certify their proceedings into chancery, afterwards by St. 13 Eliz. c. 9, it is enacted that thereafter the commissioners shall not be compelled to certify or return their proceedings, which they interpreted to extend to a certiorari; and thereupon they refused to obey the certiorari, but they were all committed; and yet the statute does not give authority to this court [King's Bench] to grant a certiorari, but it is by the common law that this court will examine, if other courts exceed their jurisdictions." Groenvelt v. Burwell, 1 Ld. Raym. 454, 469 (1699). 61 Only a portion of the opinion is printed. |