United States v. Union Pacific Railroad Co.

would be made to the court this term for a peremptory writ of mandamus, as prayed.

Putnam & Rogers, Sapp, Lyman, & Hanna, and A. V. Larimer, for the petitioners.

J. M. Woolworth, A. J. Poppleton, Contra.

DILLON, Circuit Judge.-By act of Congress approved March 3, 1873 (17 Stats. at Large, 509), it is provided that the "Proper circuit court of the United States shall have jurisdiction to hear and determine all cases of mandamus to compel said Union Pacific Railroad Company to operate its road as required by law." It is under this act that the present proceeding is instituted.

There has been no appearance by the defendant in the court, but on the day fixed in the notice as the one on which the petitioners would apply for a writ of mandamus, counsel in the interest of the defendant have asked leave to suggest for the consideration of the court the question whether, assuming the proceeding to be regular and one which is authorized, and the court to have jurisdiction in the matter, the court can, prior to the final determination of the controversy, award a writ of mandamus. This suggestion is based upon the statute of the state (Code of 1873, p. 573) relating to "Actions of Mandamus," and the effect of claimed for the 5th section of the act of Congress of June 1, 1872 (16 Stats. at Large, 197).

By the statute of the state, proceedings by mandamus are assimilated to regular actions at law, both in respect to pleadings and procedure. The alternative writ is abolished, and an order of mandamus, which is a substitute for the peremptory writ, issues only after trial, and the right to such order has been adjudged to the plaintiff.

The 5th section of the act of Congress of June 1, 1872, above mentioned, enacts "That the practice, pleadings, and

United States v. Union Pacific Railroad Co.

forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceedings existing at the time in like causes in the courts of record in the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."

* *

The act of Congress first above mentioned gives to the "Proper circuit court * jurisdiction to hear and determine all cases of mandamus to compel the Union Pacific Railroad Company to operate its road as required by law." It will be assumed that this is a proper court to take cognizance of the proceeding here commenced, and the question which meets us and which must be determined before any further steps can be taken, is, whether the proceedings shall be conducted in conformity to the state statutes relating to mandamus, or according to the practice at common law. If according to the latter, then in due course an alternative writ issues, which stands in the place of a petition or declaration, to which, if served, return must be made, and the rights of the parties thereon determined in the usual manner; but if according to the state statute, then no writ can be awarded until the right to it is established by the final judgment of the court.

The question as to the effect of the act of June 1, 1872, upon the practice in mandamus proceedings in this court, is one of interest, and we proceed to consider it.

Under the judiciary act, which prescribes the jurisdiction of this court, it is settled that it cannot issue the writ of mandamus at all in the exercise of original jurisdiction; that the power to issue this writ is confined exclusively to cases where the jurisdiction already exists, and that jurisdiction cannot be acquired by means of this writ. (Bath County v. Amey, 13 Wall. 244; Riggs v. Johnson County, 6 Wall. 166, 197.)

Now the 5th section of the act of June 1, 1872, regulating

United States v. Union Pacific Railroad Co.

pleadings and procedure, cannot have the effect to confer on this court jurisdiction in mandamus cases; the jurisdiction must otherwise exist by virtue of the judiciary act or some other act of Congress, and then the court may issue the writ when necessary to the exercise of such jurisdiction and agreeable to the principles and usages of law. (Judiciary Act, section 14; Bath County v. Amey, supra.)

The provisions of the state statute which contemplates that there shall be original process and regular pleadings, and a final determination or judgment before the writ or order is awarded, are in the main wholly inapplicable to the ancillary jurisdiction of this court in mandamus proceedings. So that in general, the practice in this court in mandamus proceedings is not affected by the act of June 1, 1872, but remains as before. And by its terms, that act refers to causes of a common law nature (sec. 11, Judiciary Act); and by the express decision of the supreme court, mandamus proceedings are not included in the section of the judiciary act which prescribes the jurisdiction of this court. (Bath County v. Amey, supra, and cases there cited.) The general practice of the court in mandamus proceedings being regulated by the principles and usages of law, and not by the state legislation, is there anything in the nature of this case which should make it an exception?

It is true that the act of 1873 gives the proper circuit court original jurisdiction of this particular case of mandamus, but as it is not one of the cases which falls within the jurisdiction of this court in common law actions as conferred by the judiciary act, and is not one of those to which the act of June 1, 1872, was intended to refer, and so does not fall within it; and as the duty sought to be enforced arises wholly under acts of Congress, and can be in no way influenced by state legislation, it is our opinion that this proceeding should be made to conform to the practice at

United States v. Union Pacific Railroad Co.

common law as liberalized and modified in more recent times by legislation and judicial decisions.

A motion for a rule upon the Union Pacific Railroad Company to appear and show cause why an alternative writ should not be granted, or for an alternative writ to be granted without the rule, is the proper step next to be taken by the relators.

LOVE, J. Concurs.

NOTE. The motion for the alternative writ is now under advisement by the court on the question, whether the petitioners may be relators, and as to jurisdiction of the court over the respondent.

Construction of act of July 1, 1872, see Schwabacker v. Reilly, ante; Bronson v. Keokuk, ante.

APPENDIX.*

In re CLEMENS.

An accommodation indorser of negotiable paper, whose indorsement is in no no way connected with the business of the indorser, cannot be forced into bankruptcy for suspending and failing to resume payment of such paper. Such paper is not "his commercial paper," within the meaning of the ninth clause of section 39 of the bankrupt act.

(Before DILLON, Circuit Judge.)

Bankrupt Act.-Section 39 Construed.-Accommodation Indors

ers.

THIS is a petition by John Clemens under section 2 of the bankrupt act, to have reviewed an order of the district court by which his answer to a petition to show cause why he should not be adjudicated a bankrupt, was held insufficient. The material facts are these:

Morris Langsdorf filed his petition in the district court of the United States against John Clemens, praying that he might be decreed a bankrupt. The petition alleges that one Christian Stæhlin made his note for $3,000, dated St. Louis, February 14, 1873, which was indorsed by respondent and three other persons, which note, before its maturity, came to the hands of the petitioning creditor for value, and that the note was subsequently duly protested for nonpayment. A copy of the note and indorsements is set forth in hæc verba in the petition.

* In the Appendix are included cases mostly decided since the previous portion of the volume was in print.