|Kendall v. United States
100 U.S. 1
[ Thompson ]
[ Taney ]
[ Barbour ]
Kendall v. United States
Mr. Chief Justice TANEY.
As this case has attracted some share of the public attention, and a diversity of opinion exists on the bench, it is proper that I should state the grounds upon which I dissent from the judgment pronounced by the Court. There is no controversy about the facts, and, as they have been already sufficiently stated, I need not repeat them.
Upon some of the points much argued at the bar, there is no difference of opinion in the Court. Indeed, I can hardly understand how so many grave questions of constitutional power have been introduced into the discussion of a case like this, and so earnestly debated on both sides. The office of Postmaster General is not created by the Constitution, nor are its powers or duties marked out by that instrument. The office was created by act of Congress, and wherever Congress creates such an office as that of Postmaster General by law, it may unquestionably, by law, limit its powers and regulate its proceedings, and may subject it to any supervision or control, executive or judicial, which the wisdom of the legislature may deem right. There can therefore be no question about the constitutional powers of the executive or judiciary in this case. The controversy depends simply upon the construction of an act of Congress. The Circuit Court for the District of Columbia was organized by the Act of February 27, 1801, which defines its powers and jurisdiction, and if that law, by its true construction, confers upon the court the power it has in this instance exercised, then the judgment must be affirmed.
There is another point on which there is no difference of opinion in the Court. We all agree that, by the Act of July 2, 1836, it was the duty of the Postmaster General to credit Stockton and Stokes with the amount awarded by the Solicitor of the Treasury, that no discretionary power in relation to the award was given to the Postmaster General, and that the duty enjoined upon him was merely ministerial. [p627]
These principles being agreed on, it follows that this was a proper case for a mandamus, provided Congress have conferred on the Circuit Court for the District of Columbia the prerogative, jurisdiction and powers exercised by the court of King's Bench in England, for Stockton and Stokes are entitled to have the credit entered in the manner directed by the act of Congress, and they have no other specific means provided by law for compelling the performance of this duty. In such a case, the court of King's Bench in England would undoubtedly issue the writ of mandamus to such an officer, commanding him to enter the credit. Have Congress conferred similar jurisdiction and powers upon the Circuit Court for this District? This is the only question in the case. The majority of my brethren think that this jurisdiction and power has been conferred, and they have given their reasons for their opinion. I, with two of my brethren, think otherwise, and with the utmost respect for the opinion of the majority of this Court, I proceed to show the grounds on which I dissent from their judgment.
It has been decided in this Court that the Circuit Courts of the United States, out of this District, have not the power to issue the writ of mandamus to an officer of the General Government, commanding him to do a ministerial act. The question has been twice before the Supreme Court, and upon both occasions was fully argued and deliberately considered. The first case was that of M'Intyre v. Wood, 7 Cranch 504, decided in 1813. It was again brought up in 1821, in the case of M'Cluny v. Silliman, 6 Wheat. 598, when the former decision was reexamined and affirmed. And it is worthy of remark that, although the decision first mentioned was made twenty-five years ago, yet Congress have not altered the law or enlarged the jurisdiction of the Circuit Courts in this respect, thereby showing, that it has not been deemed advisable by the legislature to confer upon them the jurisdiction over the officers of the General Government which is claimed by the Circuit Court for this District.
As no reason of policy or public convenience can be assigned for giving to the Circuit Court here a jurisdiction on this subject which has been denied to the other Circuit Courts, those who maintain that it has been given ought to show us words which distinctly give it or from which it can plainly be inferred. When Congress intended to confer this jurisdiction on the Supreme Court by the Act of 1789, ch. 20, they used language which nobody could misunderstand. In that law, they declared that the Supreme Court should have power [p628] to issue
writs of mandamus, in cases warranted by the principles and usages of law to any courts appointed, or persons holding office, under the authority of the United States.
Here are plain words. But no such words of grant are to be found in the Act of February 27, 1801, which established the Circuit Court of the District of Columbia and defined its powers and jurisdiction. Indeed, those who insist that the power is given seem to have much difficulty in fixing upon the particular clauses of the law which confers it. Sometimes it is said to be derived from one section of the Act, and then from another. At one time it is said to be found in the first section, at another in the third section, and then in the fifth section, and sometimes it is said to be equally discoverable in all of them. The power is certainly nowhere given in direct and positive terms, and the difficulty in pointing out the particular clause from which the power is plainly to be inferred is strong proof that Congress never intended to confer it. For if the legislature wished to vest this power in the Circuit Court for this District, while they denied it to the Circuit Courts sitting in the States, we can hardly believe that dark and ambiguous language would have been selected to convey their meaning; words would have been found in the law, equally plain with those above quoted, which conferred the power on the Supreme Court.
But let us examine the sections which are supposed to give this power to this Circuit Court.
1st. It is said to be given by the first section. This section declares that the laws of Maryland, as they then existed, should be in force in that part of the District ceded by Maryland, and the laws of Virginia in that part of the District ceded by Virginia. By this section, the common law in civil and criminal cases, as it existed in Maryland at the date of this act of Congress (February 27, 1801) became the law of the District on the Maryland side of the Potomac, and it is argued that this Circuit Court being a court of general jurisdiction in cases at common law and the highest court of original jurisdiction in the District, the right to issue the writ of mandamus is incident to its common law powers as a part of the laws of Maryland, and distinguishes it in this respect from the Circuit Courts for the States.
The argument is founded in a mistake as to the nature and character of the writ of mandamus as known to the English law, and as [p629] used and practised in Maryland at the date of the act of Congress in question.
The power to issue the writ of mandamus to an officer of the government commanding him to do a ministerial act does not, by the common law of England or by the laws of Maryland as they existed at the time of the cession, belong to any court whose jurisdiction was limited to a particular section of country, and was not coextensive with the sovereignty which established the court. It may, without doubt, be conferred on such courts by statute, as was done in Maryland in 1806, after the cession of the District. But, by the principles of the common law and the laws of Maryland as they existed at the time of the cession, no court had a right to issue the prerogative writ of mandamus unless it was a court in which the judicial sovereignty was supposed to reside, and which exercised a general superintendence over the inferior tribunals and persons throughout the Nation or State.
In England, this writ can be issued by the King's Bench only. It cannot be issued by the Court of Common Pleas, or any other court known to the English law, except the court of King's Bench. And the peculiar character and Constitution of that court, from which it derives this high power, are so well-known and familiar to every lawyer that it is scarcely necessary to cite authorities on the subject. Its peculiar powers are clearly stated in 3 Black.Com. 42, in the following words:
The jurisdiction of this court is very high and transcendant. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here or prohibit their progress below. It superintends all civil corporations in the Kingdom. It commands magistrates and others to do what their duty requires in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition,
&c. It is from this "high and transcendant" jurisdiction that the court of King's Bench derives the power to issue the writ of mandamus, as appears from the same volume of Blackstone's Commentaries, p. 110. "The writ of mandamus," says the learned commentator,
is in general a command issuing in the King's name from the court of King's Bench, and directed to any person, corporation or inferior court of judicature within the King's dominions requiring them to do some particular thing therein specified which appertains to their office and duty and which the court of King's Bench has previously determined, or [p630] at least supposes to be consonant to right and justice. It is a high prerogative writ of a most extensively remedial nature.
And Mr. Justice Butler, in his introduction to the law relative to trials at nisi prius, also places the right to issue this writ upon the peculiar and high powers of the court of King's Bench. In page 195, he says:
The writ of mandamus is a prerogative writ issuing out of the court of King's Bench (as that court has a general superintendency over all inferior jurisdictions and persons), and is the proper remedy to enforce obedience to acts of Parliament, and to the King's charter, and in such a case is demandable of right.
Indeed, in all of the authorities, it is uniformly called a "prerogative writ" in order to distinguish it from the ordinary process which belongs to courts of justice, and it was not originally considered as a judicial proceeding, but was exercised as a prerogative power. In the case of Audley v. Jay, Popham 176, Doddridge, Justice, said:
This court hath power not only in judicial things, but also in some things which are extrajudicial. The maior and comminalty of Coventry displaced one of the aldermen and he was restored, and this thing is peculiar to this court, and is one of the flowers of it.
These peculiar powers were possessed by the court of King's Bench because the King originally sat there in person and aided in the administration of justice. According to the theory of the English Constitution, the King is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain his right by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law. And although the King has long since ceased to sit there in person, yet the sovereign is still there in construction of law so far as to enable the court to exercise its prerogative powers in his name, and hence its powers to issue the writ of mandamus, the nature of which Justice Doddridge so forcibly describes by calling it extrajudicial, and one of the flowers of the King's Bench. It is therefore evident that, by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the court of King's Bench, in which the sovereignty might by construction of law be supposed to sit and to exert there its prerogative powers in aid of the court in order that a right might not be without a remedy.
The English common law was adopted in the colony of Maryland, [p631] and the courts of the province formed on the same principles. The proprietary government established what was called the provincial court, in which it appears that, in imitation of what had been done in England, the lord proprietary, in an early period of the colony, sat in person. [*] This court possessed the same powers in the province that belonged to the court of King's Bench in England. Its jurisdiction was coextensive with the dominions of the lord proprietary, and it exercised a general superintendence over all inferior tribunals and persons in the province, and consequently possessed the exclusive power of issuing the writ of mandamus.
When the revolution of 1776 took place, the same system of jurisprudence was adopted, and the fifty-sixth article of the Constitution of Maryland provided
that three persons of integrity and sound judgment in the law be appointed judges of the court now called the provincial court, and that the same court be hereafter called and known by the name of the General Court.
No further description of the jurisdiction and powers of the General Court is given. It, therefore, in the new order of things, was clothed with the same powers and jurisdiction that had belonged to the provincial court before the revolution. In other words, the General Court was, in the State of Maryland, precisely what the court of King's Bench was in England. Afterwards, and before the cession of the District of Columbia to the United States, County Courts were established in Maryland corresponding in character with what are called Circuit Courts in most of the States. These courts possessed general jurisdiction, civil and criminal, in the respective counties, subject, however, to the superintending power of the General Court, which exercised over them the same sort of jurisdiction which the court of King's Bench exercises over inferior tribunals. This was the system of jurisprudence in Maryland at the time when the act of Congress adopted the laws of the State for the District, and the power which the Maryland courts then possessed, by virtue of those laws, in relation to the writ of mandamus, are set forth in the case of Runkle v. Winemiller, 4 Harris & M'Henry 449. Chief Justice Chase, in delivering the opinion of the court in that case, after describing the character and principles of the writ of mandamus, says:
The court [p632] of King's Bench having a superintending power over inferior courts of jurisdiction, may, and of right ought to, interfere to supply a remedy when the ordinary forms of proceeding are inadequate to the attainment of justice in matters of public concern. 3 Bac.Abr. 529, 530. The position that this Court is invested with similar powers is generally admitted, and the decisions have invariably conformed to it, from whence the inference is plainly deducible that this court may, and of right ought for the sake of justice, to interpose in a summary way to supply a remedy where, for the want of a specific one, there would otherwise be a failure of justice.
This case was decided in 1799, in the General Court, and it shows, most evidently that the power of issuing the writ of mandamus was confined to that court, and was derived from its King's Bench powers of superintending inferior courts and jurisdictions in the execution of the law, and that this power was not possessed by any other court known to the laws of Maryland. And so well and clearly was this understood to be the law of the State that when the General Court was afterwards abolished by an alteration in the Constitution, and County Courts established as the highest courts of original jurisdiction, no one supposed that the prerogative powers of the General Court were incidental to their general jurisdiction over cases at common law, and a statute was passed in 1806 to confer this jurisdiction upon them. This act declares,
that the County Courts shall have, use, and exercise, in their respective counties, all and singular the powers, authorities, and jurisdictions which the General Court, at the time of the abolition thereof, might or could have exercised in cases of writs of mandamus.
The adoption of the laws of Maryland, therefore, does not give to the Circuit Court for the District of Columbia the power to issue the writ of mandamus as an incident to its general jurisdiction over cases at common law. It has none of what Blackstone calls the "high and transcendent" jurisdiction of the court of King's Bench in England, and of the General Court in Maryland. It is not superior to all the other courts of the United States of original jurisdiction throughout the Union, it is not authorized to superintend them, and "keep them within the bounds of their authority," it does not "superintend all civil incorporations" established by the United States, nor "command magistrates" and other officers of the United States in every quarter of the country, "to do what their duty requires in every case where there is no other specific remedy." Its jurisdiction is confined to the narrow limits of the District, and the [p633] jurisdiction which it derives from the adoption of the laws of Maryland must be measured by that of the County Courts of the State, which the court for this District in every respect resembles. These courts had no power to issue the writ of mandamus at the time when the laws of Maryland were adopted by Congress, and when the County Courts afterwards became, by the abolition of the General Court, the highest courts of original jurisdiction, still, by the laws of that State, they could not issue this writ until the power to do so was conferred on them by statute. As this act of assembly passed five years after Congress assumed jurisdiction over the District, it forms no part of the laws adopted by the act of Congress. I cannot, therefore, see any ground whatever for deriving the authority to issue this writ of mandamus from the first section of the act of Congress, adopting the laws of Maryland as they then existed.
2. But it is insisted that if the power to issue the writs of mandamus is not incidentally granted to this Circuit Court by the first section of the Act of February 27th, 1831, which adopts the laws of Maryland, yet it is directly and positively given by the fifth section, which declares that the court shall have cognizance of "all cases in law and equity." It is said that a case proper for a mandamus is a case at law, and that the words above-mentioned therefore authorize the Circuit Court to take cognizance of it.
The cases of Wood v. M'Intire and M'Cluny v. Silliman, hereinbefore mentioned, appear to me to be decisive against this proposition. These cases decided that the Circuit Courts out of this District have not the power now in question. It is true that the eleventh section of the Act of 1789, ch. 20, which prescribes the jurisdiction of the Circuit Courts out of this District, does not use the very same words that are used in the fifth section of the act now under consideration. The eleventh section of the Act of 1789 declares that the Circuit Courts shall have cognizance of "all suits of a civil nature at common law, or in equity," &c. But these words "all suits of a civil nature at common law" mean the same thing as the words "all cases at law," which are used in the Act of February 27th, 1801, and Mr. Justice Story, in his Commentaries on the Constitution, Abr. 608, 609, in commenting on the meaning of the words "cases at law and equity," as used in the Constitution, says:
A case, then, in the sense of this clause of the Constitution, arises where some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the [p634] form prescribed by law. In other words, a case is a suit in law or equity instituted according to the regular course of judicial proceedings, and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union.
Now if a case at law means the same thing as a suit at law, and the latter words do not give jurisdiction to the Circuit Courts out of this District to issue the writ of mandamus to an officer of the General Government, how can words which are admitted to mean the same thing give the power to the Circuit Court within this District? How can the cognizance of "cases at law" in the act of Congress before us be construed to confer this jurisdiction when it has been settled by two decisions of this Court that words of the same meaning do not give it to the other Circuit Courts? We cannot give this construction to the Act of February 27th, 1801, without giving a judgment inconsistent with the decisions of this Court in the two cases above-mentioned, and I cannot agree either to overrule these cases or to give a judgment inconsistent with them.
But it is argued that if the 1st section of the act of Congress does not give the Circuit Court this jurisdiction, and if the 5th section does not give it, yet it may be derived from these two sections taken together. The argument, I understand, is this: the General Court of Maryland possessed the power to issue the writ of mandamus in a case of this description, and inasmuch as that court possessed this power, the cases which authorized the parties to demand it were "cases at law" by the laws of that State, and consequently the jurisdiction is conferred on the Circuit Court in similar cases by the adoption of the laws of Maryland in the first section and the words in the fifth which give the Circuit Court cognizance of "cases at law."
The fallacy of this argument consists in assuming that the General Court of Maryland had jurisdiction to issue the writ of mandamus because it was "a case at law" whenever the party took the proper steps to show himself entitled to it. The reverse of this proposition is the true one. A "case at law," as I have already shown, means the same thing as a "suit," and the General Court had authority to issue the writ of mandamus not because the proceeding was a case or suit at law, but because no case or suit at law would afford a remedy to the party. This is the basis upon which rests the power of the court of King's Bench in England, and upon which rested the power of the General Court in Maryland before that court was abolished. [p635] These courts, by virtue of their prerogative powers, interposed "to supply a remedy in a summary way" where no suit or action known to the law would afford one to the party for the wrong he had sustained. It is not a suit in form or substance, and never has been so considered in England or in Maryland. For if it had been considered in Maryland as a suit at law, Chief Justice Chase, in the case of Runkel v. Winemiller, hereinbefore referred to, would hardly have put his decision on the prerogative powers of the General Court in the manner hereinbefore stated. Since the Statute of the 9th of Anne, authorizing pleadings in proceedings by mandamus, it has been held that such a proceeding is in the nature of an action, and that a writ of error will lie upon the judgment of the court awarding a peremptory mandamus. But it never has been said in any book of authority that this prerogative process is "an action," or "a suit," or "a case" at law, and never suggested that any court not clothed with the prerogative powers of the King's Bench could issue the process according to the principles of the common law unless the power to do so had been conferred by statute.
4. But it is said that, if the jurisdiction exercised in this case by the Circuit Court for the District of Columbia cannot be maintained upon any of the grounds hereinbefore examined, it may yet be supported on the 3d section of the Act of February 27, 1801. This section, among other things, provides that this Circuit "Court and the judges thereof shall have all the powers by law vested in the Circuit Courts, and the judges of the Circuit Courts of the United States." And it is insisted that, as the Act of February 13, 1801, was at that time in force, the powers of this Circuit Court are to be measured by that act, although it has since been repealed; that the Circuit Courts established by the Act of February 13th, 1801, did possess the power in question; and consequently that the Circuit Court for this District now possesses it and may lawfully exercise it.
There are two answers to this argument, either of which is, in my judgment, sufficient.
In the first place, there are no words in the Act of February 27, 1801, which refer particularly to the powers given to the Circuit Courts by the Act of February 13, 1801, as the rule by which the powers of the Circuit Court for this District are to be measured. The obvious meaning of the words above quoted is that the powers of this Circuit Court shall be regulated by the existing powers of the Circuit Courts as generally established, so that the powers of this circuit [p636] court would be enlarged or diminished, from time to time, as Congress might enlarge or diminish the powers of the Circuit Courts in its general system. And when the law of February 13, 1801, was afterwards repealed, and the Act of 1789 reenacted, the powers of this Circuit Court were regulated by the powers conferred on the Circuit Courts by the last mentioned law. It was the intention of Congress to establish uniformity in this respect, and they have used language which, in my opinion, makes that intention evident. The Circuit Court for this District cannot, therefore, refer for its "powers" to the Act of February 13, 1801, since that act has been repealed.
In the second place, if the powers of the Circuit Court for the District of Columbia are still to be regulated by the law which was repealed as long ago as 1802, yet it will make no difference in the result of the argument. Much has been said about the meaning of the words "powers" and "cognizance" as used in these acts of Congress. These words are no doubt generally used in reference to courts of justice as meaning the same thing, and I have frequently so used them in expressing my opinion in this case. But it is manifest that they are not so used in the acts of Congress establishing the judicial system of the United States, and that the word "powers" is employed to denote the process, the means, the modes of proceedings which the courts are authorized to use in exercising their jurisdiction in the cases specially enumerated in the law as committed to their "cognizance." Thus, in the Act of 1789, ch. 20, the 11th section specifically enumerates the cases or subject matter of which the Circuit Courts shall have "cognizance," and subsequent sections under the name of "powers" describe the process, the means which the courts may employ in exercising their jurisdiction in the cases specified. For example, Section 14 gives them the "power" to issue the writs "necessary for the exercise of their respective jurisdictions," and names particularly some of the writs which they shall have the "power" to issue; Section 15, gives them the "power" to compel parties to produce their books, &c.; Section 17, gives them the "power" to grant new trials, to administer oaths, to punish contempts, and to establish rules of court. The same distinction between "powers" and jurisdiction or "cognizance" is preserved in the Act of February 13, 1801. The 10th Section of this act gives the Circuit Courts thereby established all the "powers" before vested in the Circuit Courts of the United States, unless where otherwise provided by that law, and the next following Section (the 11th) enumerates specifically the [p637] cases or controversies of which they shall have "cognizance." And so also, in the Act of February 27, 1801, establishing the Circuit Court for this District, the same distinction is continued, and the 3d Section (the one now under consideration) gives the court "all the powers by law vested in the Circuit Courts," while the 5th Section enumerates particularly the matters and controversies of which it shall have "cognizance," that is to say, over which it shall exercise jurisdiction, by the means and the "powers" given to it for that purpose by this same act of Congress. With these several laws before us, in each of which the same terms have evidently been always used in the same sense, it appears to me impossible to doubt the meaning which Congress intended to affix to them. If they had used the word "powers" and the word "cognizance" as meaning the same thing, would they, in the 10th Section of the Act of February 13, 1801, have given jurisdiction in general terms under the name of "powers" to the courts thereby established, and then have immediately followed it up with a specification of the cases of which it should take "cognizance?"; and if such an unusual mode of legislation had been adopted in this law from inadvertence or mistake, would it have been adhered to and repeated in the Act of February 27, 1801? It is hardly respectful to the legislative body, for this Court to say so. It is clear that the word "powers" must have been constantly used in these laws in the sense I have already stated, and if the 3d Section of the last mentioned act is to be construed as referring particularly to the Act of February 13, 1801, it will not affect the present controversy. For we find the "powers" of those Circuit Courts given by the 10th Section, and they are there given by referring as generally to the "powers" conferred on the Circuit Courts by preceding laws, so that, after all, we are still carried back to the Act of 1789 in order to learn the powers of the Circuit Courts established by the Act of February 13, 1801, and consequently we are also to learn from that law the "powers" of the Circuit Court for this District. And upon turning to the Act of 1789, we find there the power given to the Supreme Court to issue the writ of mandamus "to persons holding office under the authority of the United States," but we find no such power given to the Circuit Courts. On the contrary, it has been decided, as hereinbefore stated, that, under the Act of 1789, they are not authorized to issue the process in question. The 3d Section of the Act of February 27, 1801, will not, therefore, sustain the jurisdiction exercised in this case by the Circuit Court. [p638]
But the principal effort on the part of the relators in this branch of the argument is to give to this third section such a construction as will confer on this Circuit Court a jurisdiction coextensive with that given to the Circuit Courts by the eleventh section of the Act of February 13, 1801. In other words, they propose to expound the Act of February 27th as if this section of the Act of February 13th was inserted in it. The eleventh Section of the act referred to enumerates and specifies particularly the cases of which the Circuit Courts thereby established had "cognizance," and the relators insist that jurisdiction in all the cases mentioned in that section is also conferred on the Circuit Court for this District by reason of the provision in the third Section of the Act of February 27th, above mentioned. And they contend that the aforesaid eleventh Section gave to the Circuit Courts established by that law jurisdiction to issue the writ in question, and that the Circuit Court for this District therefore possesses the same jurisdiction, even although it is not given by the fifth Section of the act establishing it. The object of this argument is to extend the jurisdiction of this Circuit Court beyond the limits marked out for it by the fifth Section of the act which created it, provided the eleventh Section of the Act of February 13th shall be construed to have given a broader jurisdiction.
Now it appears to me that, when we find the eleventh Section of the Act of February 13th enumerating and specifying the cases of which the Circuit Courts out of this District should have "cognizance," and the fifth Section of the Act of February 27th enumerating and specifying the cases of which the Circuit Court within this District should have "cognizance," if there is found to be any substantial difference in the jurisdictions thus specified and defined in these two laws, the just and natural inference is that the legislature intended that the jurisdiction of the courts should be different, and that they did not intend to give to the Circuit Court for this District the same jurisdiction that had been given to the others. This would be the legitimate inference in comparing any laws establishing different courts, and the conclusion is irresistible in this case, where the two laws were passed within a few days of each other and both must have been before the legislature at the same time. It would be contrary to the soundest rules for the construction of statutes in such a case to enlarge the jurisdiction of this Circuit Court beyond the limits of the fifth Section by resorting to such general words as those contained in the third, and to words, too, which much more [p639] appropriately apply to its process, to its modes of proceeding, and to other "powers" of the court, and which certainly have no necessary connection with the cases of which the court is authorized to take "cognizance."
I do not, however, mean to say, that the eleventh Section of the Act of February 13th conferred on the Circuit Courts which it established the power to issue the writ of mandamus in a case like the present one. I think it did not, and that a careful analysis of its provisions would show that it did not, especially when taken in connection with the provisions of the Act of 1789, which had expressly conferred that power on the Supreme Court. But it is unnecessary to pursue the argument on this point, because no just rule of construction can authorize us to engraft the provisions of this section upon the Act of February 27th so as to give to the Circuit Court for the District of Columbia a wider jurisdiction than that contemplated by the fifth Section of the last mentioned act.
Upon a view of the whole case, therefore, I cannot find the power which the Circuit Court has exercised either in the first Section, or the third Section, or the fifth Section, and it is difficult to believe that Congress meant to have given this high prerogative power in so many places, and yet, in every one of them, have left it, at best, so ambiguous and doubtful. And if we now sanction its exercise, we shall give to the court, by remote inferences and implications, a delicate and important power which I feel persuaded Congress never intended to entrust to its hands.
Nor do I see any reason of policy that should induce this Court to infer such an intention on the part of the legislature where the words of the law evidently do not require it. It must be admitted that Congress have denied this power to the Circuit Courts out of this District. Why should it be denied to them, and yet be entrusted to the court within this District? There are officers of the General Government in all of the States who are required by the laws of the United States to do acts which are merely ministerial, and in which the private rights of individuals are concerned. There are collectors and other officers of the revenue who are required to do certain ministerial acts in giving clearances to vessels or in admitting them to entry or to registry. There are also registers and receivers of the land offices who are, in like manner, required by law to do mere ministerial acts in which the private rights of individuals are involved. Is there any reason of policy that should [p640] lead us to suppose that Congress would deny the writ of mandamus to those who have such rights in the States, and give it to those who have rights in this District? There would be no equal justice in such legislation, and no good reason of policy or convenience can be assigned for such a distinction.
The case of the Columbian Insurance Company v. Wheelwright, 7 Wheat. 534, has been relied on as sanctioning the exercise of the jurisdiction in question, and it is said, that this Court, in determining that a writ of error would lie from the decision of the Circuit Court of this District awarding peremptory mandamus, have impliedly decided that the Circuit Court had jurisdiction to issue the process. I confess I cannot see the force of this argument. The 8th Section of the Act of February 27, 1801, provides
that any final judgment, order, or decree, in said Circuit Court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars may be reexamined, and reversed or affirmed, in the Supreme Court of the United States, by writ of error or appeal, which shall be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had therein as is or shall be provided in the case of writs of error, or judgments, or appeals, upon orders or decrees rendered in the Circuit Court of the United States.
Now the order for a peremptory mandamus in the case cited, as well as in the one now before the Court, was certainly "a final judgment" of the Circuit Court. It decided that they had jurisdiction to issue the mandamus, and that the case before them was a proper one for the exercise of this jurisdiction. Being the "final judgment" of the Circuit Court, it was liable to be reexamined in this Court by writ of error, and to be reversed, if upon such reexamination, it was found that the Circuit Court had committed an error either in assuming a jurisdiction which did not belong to it or by mistaking the rights of the parties, if it had jurisdiction to issue the mandamus. In the case of Custis v. The Georgetown and Alexandria Turnpike Company, 6 Cranch 233, the Supreme Court sustained the writ of error and reversed the judgment of the Circuit Court of this District quashing an inquisition returned to the clerk, and this was done upon the ground that the Circuit Court had exercised a jurisdiction which did not belong to it. There are a multitude of cases where this Court has entertained a writ of error for the purpose of reversing the judgment of the court below upon the ground that the Circuit Court had not jurisdiction of the case, for the [p641] want of the proper averments in relation to the citizenship of the parties.
It is certainly error in a Circuit Court to assume a jurisdiction which has not been conferred on it by law. And it would seem to be a strange limitation on the appellate powers of this Court if it were restrained from correcting the judgment of a Circuit Court when it committed this error. If such were the case, then an error committed by a Circuit Court in relation to the legal rights of the parties before it could not be examined into and corrected in this Court if it happened to be associated with the additional error of having assumed a jurisdiction which the law had not given. Such, I think, cannot be the legitimate construction of the section above quoted. And if the Circuit Court mistakes its jurisdiction either in respect to the persons, or the subject matter, or the process, or the mode of proceeding, the mistake may be corrected here by a writ of error from its final judgment, or by appeal in cases of equity or admiralty jurisdiction. And whether the final judgment is pronounced in a summary or other proceeding, if it be in a case in which the Circuit Court had not jurisdiction, its judgment may be reexamined here, and the error corrected by this Court. The decision of this Court, therefore, in the case of The Columbian Insurance Company v. Wheelwright, that a writ of error would lie from the judgment of the Circuit Court of the District of Columbia awarding a peremptory mandamus is by no means a decision that the court below had jurisdiction to issue it.
In fine, every view which I have been able to take of this subject leads me to conclude that the Circuit Court had not the power to issue a writ of mandamus in the case before us. And, although I am ready to acknowledge the respect and confidence which is justly due to the decision of the majority of this Court, and am fully sensible of the learning and force with which their judgment is sustained by the learned judge who delivered the opinion of the Court, I must yet, for the reasons above stated, dissent from it. I think that the Circuit Court had not by law the right to issue this mandamus, and that the judgment they have given ought to be reversed.
* I derive my knowledge of the fact that the Lord Proprietary sat in person in the provincial court from a manuscript work of much value, by J. V. L. M'Mahon, Esquire, whose History of Maryland, from its first Colonization to the Revolution, is well known to the public.