| Kendall v. United States
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| Syllabus
| Opinion
[ Thompson ] | Dissent
[ Taney ] | Separate
[ Barbour ] |
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Kendall v. United States
Mr. Justice BARBOUR:
In this case, I have no doubt but that Congress has the constitutional power to give to the federal judiciary, including the Circuit Court of this District, authority to issue the writ of mandamus to the [p642] Postmaster General to compel him to perform any ministerial duty devolved on him by law.
I have no doubt that the act which in this case was required to be done by the Postmaster General is such an one as might properly be enforced by the writ of mandamus if the Circuit Court of this District had authority by law to issue it.
But the question is whether that court is invested with this authority by law? I am of opinion that it is not, and I will state the reasons which have brought me to that conclusion.
It was decided by this Court, in the case of M'Intire v. Wood, 7 Cranch 504, upon a certificate of division from the Circuit Court of Ohio, that that court did not possess the power to issue a writ of mandamus to the register of a land office commanding him to issue a final certificate of purchase to the plaintiff for certain lands in the State of Ohio.
The principle of this case was approved, and the same point affirmed, in the case of M'Cluny v. Silliman, 6 Wheat. 598.
In the views, then, which I am about to present, I shall set out with the adjudged and admitted proposition that no other Circuit Courts of the United States have power to issue the writ of mandamus. And then the whole question is resolved into the single inquiry whether the Circuit Court of this District has power to do that which all admit the other Circuit Courts of the United States have not the power to do? It has been earnestly maintained at the bar that it has, because it is said that it has, by law, a larger scope of jurisdiction.
To bring this proposition to the test of a close scrutiny, let us compare the precise terms in which the jurisdiction of the Circuit Courts of the United States is granted by the Judiciary Act of 1789 with those which are used in the grant of jurisdiction to the Circuit Court of this District by the Act of the 27th February, 1801.
The eleventh Section of the Judiciary Act of 1789, so far as it respects this question, is in these words:
That the Circuit Courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.
The fifth Section of the Act of the 27th February, 1801, giving [p643] jurisdiction to the Circuit Court of this District, so far as respects this question, is in these words:
That said court shall have cognizance of all cases in law and equity, between parties, both or either of which shall be resident, or shall be found within the said District, and also of all actions or suits of a civil nature, at common law or in equity, in which the United States shall be plaintiffs or complainants.
Having placed these two sections in juxtaposition for the purpose of comparing them together, I will now proceed to examine the particulars in which it has been attempted to be maintained that the grant of jurisdiction to the Circuit Court of this District is more extensive than that to the other Circuit Courts of the United States, so as to enable it to reach this case, which it is admitted the others cannot do.
In the first place, we have been told that, in the grant of jurisdiction to the other Circuit Courts by the eleventh Section of the Judiciary Act of 1789, the words "concurrent with the courts of the several States" are found, which words are not contained in the fifth Section of the Act of the 27th February, 1801, giving jurisdiction to the Circuit Court of this District. It is argued that these words are restrictive in their operation, and limit the jurisdiction of those courts to those cases only of which the State courts could take cognizance at the time the Judiciary Act of 1789 was passed. That, as the ordinary jurisdiction of the State courts did not then extend to cases arising under the Constitution and laws of the United States, therefore the jurisdiction of the Circuit Courts, given by the eleventh Section of that act, did not extend to those cases, because it was declared to be concurrent, and consequently only coextensive.
This position is, in my estimation, wholly indefensible. I think it a proposition capable of the clearest proof that the insertion of the words "concurrent with the courts of the several States" was not intended to produce, and does not produce, any limitation or restriction whatsoever upon the jurisdiction of the Circuit Courts of the United States.
No such consequence could follow for this obvious reason -- that the State courts could themselves rightfully take cognizance of any question whatever which arose in a case before them, whether growing out of the Constitution, laws, and treaties of the United States, or, as is said in the eighty-second number of the Federalist, arising under the laws of Japan. The principle is, as laid down in the number [p644] of the Federalist, just referred to,
That the judiciary power of every government looks beyond its own local or municipal laws and, in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe.
In conformity with this principle, it is said by this Court, 1 Wheaton 340, speaking of the State courts:
From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the Constitution, laws, and treaties of the United States, the supreme law of the land.
And, in the same case, after putting cases illustrative of the proposition and a course of reasoning upon them, they conclude by saying,
it must therefore be conceded that the Constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before State tribunals. It was foreseen that, in the exercise of their ordinary jurisdiction, State courts would incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States.
From these quotations, it is apparent that no restriction can have been imposed upon the jurisdiction of the Circuit Courts of the United States by words which make it concurrent with that of the courts of the States when it is admitted that there is no question which can arise before them, in a civil case, which they are not competent, and indeed bound, to decide according to the laws applicable to the question, whether they be the Constitution, laws and treaties of the United States, the laws of Japan, or any other foreign country on the face of the earth.
The same number of the Federalist already referred to furnishes the obvious reason why these words were inserted. It is there said that, amongst other questions which had arisen in relation to the Constitution, one was whether the jurisdiction of the federal courts was to be exclusive, or whether the State courts would possess a concurrent jurisdiction? The author reasons upon the subject, quotes the terms in which the judicial power of the United States is vested by the Constitution, states that these terms might be construed as importing one or the other of two different significations, and then concludes thus:
The first excludes, the last admits, the concurrent jurisdiction of the State tribunals, and as the first would [p645] amount to an alienation of State power, by implication, the last appears to me the most defensible construction.
The reason, then, why these words were inserted in the eleventh Section of the Judiciary Act was to remove the doubt here expressed, to obviate all difficulty upon the question whether the grant of judicial power to the federal courts, without saying more, might not possibly be construed to exclude the jurisdiction of the State courts. Its sole object was, as is sometimes said in the law books, to exclude a conclusion.
Congress cannot, indeed, confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, as is said in Houston v. Moore, 5 Wheat. 27, although it is said in the same case the State courts may exercise jurisdiction on cases authorized by the laws of the State and not prohibited by the exclusive jurisdiction of the federal courts. This, however, is not because they have had, or can have, any portion of the judicial power of the United States, as such, imparted to them, but because, by reason of their original, rightful judicial power, as State courts, they are competent to decide all questions growing out of all laws which arise before them, and accordingly the framers of the Judiciary Act, proceeding on the idea that questions arising under the Constitution, laws and treaties of the United States might and would be presented and decided in the State courts, inserted the 25th Section, by which those cases, under certain circumstances, might be brought by writ of error or appeal to this Court.
The difference in the phraseology of the two sections has been adverted to. It has been said that the words in the 11th Section of the Judiciary Act of 1789, are all suits of a civil nature, at common law, or in equity, and those in the 5th Section of the Act of 1801, giving jurisdiction to the Circuit Court of this District, are "all cases in law and equity." Now it is impossible to maintain that there is any difference in legal effect between these two modes of expression. What is a case in law or equity? I give the answer in the language of the late Chief Justice of this Court: "To come within this description, a question must assume a legal form for forensic litigation and judicial decision." And what is a suit? I give the answer also in the language of the late Chief Justice, who, in 2d Peters 464, says, in delivering the opinion of the Court, "if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit." It is then unquestionably true that the court, which has jurisdiction over all [p646] suits in law and equity, has as much judicial power by those terms as a court has by the terms, "all cases in law and equity." The only difference between the two sections under consideration, in relation to the question before us, consists in the two limitations contained in the 11th Section of the Judiciary Act, the one as to the character of the parties, the other as to the value of the matter in dispute.
When, therefore, we suppose a case in which the plaintiff and defendant are citizens of different States (the one being a citizen of the State where the suit is brought) and in which the value of the matter in dispute is five hundred dollars, with these parties, and a subject matter of this value, all the Circuit Courts of the United States can take cognizance of it, whether it shall have arisen under the Constitution, laws or treaties of the United States, the laws of a State, or of any foreign country, having application to the case. Whenever, therefore, it is said that those courts cannot take cognizance of cases in law and equity arising under the Constitution, laws or treaties of the United States, it is only meant to say that they cannot do it on account of the character of the questions to be decided, unless the parties and the value of the subject matter come within the description of the 11th Section, but when they do, there cannot be a possible doubt. And this will explain the case of a patentee of an invention, referred to in the argument, to whom a right to institute a suit in the Circuit Courts has been given by special legislation. The only effect of that is that such a patentee can sue in the Circuit Courts, on account of the character of the case, without regard to the character of the party, as to citizenship, or the value of the matter in dispute, whereas, without such special legislation, he could have sued in the Circuit Courts if his character as a party, and the value of the matter in dispute had brought his case within the description of the 11th Section of the Judiciary Act. In the case of M'Cluny v. Silliman, however, this difficulty did not exist, for it is distinctly stated in that case, page 601 that the parties to that controversy were competent to sue under the 11th Section, being citizens of different States, and yet this Court refers to and adopts the response which they had given to the question stated in M'Intire v. Wood, which answer was in these words: "that the Circuit Court did not possess the power to issue the mandamus moved for."
It has been attempted to be maintained in the argument that the Circuit Court of this District has a more extensive jurisdiction than [p647] the other Circuit Courts of the United States, by the following course of reasoning: we have been referred to the third Section of the Act of the 27th of February, 1801, establishing the Circuit Court of this District, which section is in these words:
The said 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.
It is then assumed in the argument that the powers of the court, and its jurisdiction, are the same thing; it is also assumed that the third Section has reference not to the powers of the Circuit Courts of the United States and their judges, as they shall be from time to time modified by legislation, but to those which were established by the Act of the 13th February, 1801, entitled "an act to provide for the more convenient organization of the courts of the United States," which, though since repealed, was passed fourteen days before the act establishing the Circuit Court of this District, and was in force at the date of the passage of this latter act.
We are then referred to the eleventh Section of the Act of the 13th of February, 1801, by which jurisdiction is given to the Circuit Courts thereby established, over
all cases in law or equity arising under the Constitution and laws of the United States, and treaties made, or which shall be made under their authority.
Even conceding for the present all these assumptions in favour of the argument, it wholly fails to sustain the position contended for. To prove this, I need only refer to my previous reasoning in this case, by which I have shown that, under the eleventh Section of the Judiciary Act of 1789, the Circuit Courts had as ample jurisdiction in all cases arising under the Constitution, laws and treaties of the United States, as is given them by the section now under consideration, subject only to the two limitations as to parties, and value of the matter in dispute. So that, beyond all question, the only difference is that, by the section now under consideration, the Circuit Courts could take cognizance on account of the character of the case, no matter who were the parties or what the value in dispute, whereas, as, by the eleventh Section of the Judiciary Act, they could take cognizance of the same questions, provided the parties were, for example, citizens of different States and the matter in dispute was of the value of five hundred dollars. And yet, as I have already stated, in M'Cluny v. Silliman, in which the parties corresponded to the requirements of the law and there was no question raised as to the value of the matter in dispute, this Court reaffirmed the proposition [p648] that the Circuit Courts of the United States did not possess the power to issue the writ of mandamus. But let us briefly examine one of the assumptions which I have, argumenti gratia, conceded for the purpose of giving the fullest force to the argument founded on it -- I mean that which takes for granted that the powers and the jurisdiction of the court are the same thing. I say nothing of the other assumption simply because it is wholly immaterial to the view which I take. Are the powers and jurisdiction of the court equivalent? Whatever may be the meaning of these terms in the abstract, they are clearly used as of essentially different import in the acts of Congress, and this difference will, in my opinion, go far to show the error in the conclusions drawn from the assumption that they are of equivalent import. There are several reasons which conclusively prove that they were used in different senses by Congress. In the first place, as well in the Act of 1789, establishing the Circuit Courts of the United States and the Act of the 13th February, 1801, reorganizing them, as in the Act of the 27th February, 1801, establishing the Circuit Court of this District, the jurisdiction of the court is defined in one section and its powers are declared in another. Now, it is an obvious remark that if powers and jurisdiction were considered as equivalent, here was mere useless tautology. For, upon this hypothesis, the grant of powers carried with it jurisdiction, and, e converso, the grant of jurisdiction carried with it powers.
In the next place, we not only find that in some sections the term "cognizance" or "jurisdiction" (which are synonymous) is used, whilst, in others, the term "power" is made use of, but in the very same section -- that is, the thirteenth, in relation to the Supreme Court, both terms are used thus: "The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except," &c., and in the same section, "and shall have power to issue writs of prohibition to the District Courts," &c.
Again: the Act of 1789, after defining the jurisdiction of the different courts in different sections, viz., that of the District Courts in the ninth that of the Circuit Court in the eleventh, and that of the Supreme Court in the thirteenth, together with the power to issue writs of prohibition and mandamus, proceeds in subsequent sections to give certain powers to all the courts of the United States. Thus, in the fourteenth, to issue writs of scire facias, habeas corpus, &c., in the fifteenth, to require the production of books and writings, in the 17th, to grant new trials, to administer oaths, punish contempts, [p649] &c. It is thus apparent that Congress used the terms "jurisdiction" and "powers" as being of different import. The sections giving jurisdiction describe the subject matter and the parties of which the courts may take cognizance, the sections giving powers import authority to issue certain writs and do certain acts incidentally becoming necessary in, and being auxiliary to, the exercise of their jurisdiction. In regard to all the powers in the fifteenth and seventeenth Sections, this is apparent beyond all doubt, as every power given in both those sections necessarily presupposes that it is to be exercised in a suit actually before them, except the last in the seventeenth Section, and that is clearly an incidental one, it being a power "to make and establish all necessary rules for the orderly conducting business in the said courts," &c. And this brings me directly to the fourteenth Section, under which it was contended, in the case of M'Cluny v. Silliman, that the Circuit Courts could issue writs of mandamus. That section is in these words:
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.
As the writ of mandamus is not specially provided for by law except in the case of the Supreme Court, it is obvious that, to enable any Circuit Court to issue it, it must be shown to be necessary to the exercise of its jurisdiction. It is argued here, as it was in the case of M'Cluny v. Silliman, that a mandamus is proper where there is no other specific legal remedy, and that therefore, in such a case, it is necessary to the exercise of the jurisdiction of the court, and so within the words of the statute. But what was the answer of the Court in that case? Amongst other things, they 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.
Again they said:
The fourteenth 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. Such was the case brought up from Louisiana, in which the judge refused to proceed to judgment, by which act the plaintiff must have lost his remedy below, and this Court have been deprived of its appellate control over the question [p650] of right.
As this answer was considered conclusive in the case referred to, it would be sufficient for me to stop here, with giving the same answer. But let us pursue the subject a little further. The proposition which I maintain is that this section did not contemplate any original writ, but only those which are incidental and auxiliary. That it did not contemplate any writ as original process, is apparent from this consideration that by an act passed at the same session, and within five days thereafter, entitled an act to regulate processes in the courts of the United States, the forms of writs and executions, except their style and modes of process then used in the supreme courts of the States, were adopted.
But it seems to me that there is an argument to be derived from the nature and character of the writ of mandamus, and the legislation of Congress in relation to it, which is, of itself, decisive against the power of the Circuit Court to issue it. It is declared by all the English authorities, from which in general our legal principles are drawn, to be a high prerogative writ. Accordingly, it issues in England only from the King's Bench, in which the King did formerly actually sit in person, and in which, in contemplation of law, by his judges, he is still supposed to sit. It never issues but to command the performance of some public duty. Upon this principle, 5 Barn. & Ald. 899, the court of King's Bench refused a mandamus to a private trading corporation to permit a transfer of stock to be made in their books, declaring that it was confined to cases of a public nature, and that, although the company was incorporated by a royal charter, it was a mere private partnership. Upon the same principle, I believe that it may be affirmed without exception, unless where a statutory provision has been made that in every State of the Union where the common law prevails, this writ issues only from the court possessing the highest original common law jurisdiction. The Congress of the United States adopted the same principle, and, by the thirteenth Section of the Judiciary Act of 1789, gave to the Supreme Court of the United States power in express terms 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,
thus covering the whole ground of this high prerogative writ. If, then, there ever were a case in which the maxim that expressio unius est exclusio alterius applied, this seems to me to be emphatically that case. It is of the nature of the writ, to be issued by the highest court of the government, the Supreme [p651] Court is the highest, and accordingly, to that Court, the power to issue it is given. It is given in express words to that Court, and is not given in terms to any other court. It is given to that Court in express terms, in the thirteenth Section, and although not given in terms in the fourteenth Section, immediately following, the power to issue it is attempted to be derived by implication from that section. And last, but not least, where it is given, it is subject to no limitation but that it is to issue "in cases warranted by the principles and usages of law," and may be issued to "any courts appointed by, or persons holding office under the authority of the United States," whereas, in the fourteenth Section, all the courts of the United States are empowered to issue certain writs, naming them, and then others, not naming them, and not mentioning the writ of mandamus, which may be necessary for the exercise of their respective jurisdictions. Nor is the force of this argument at all weakened by the circumstance that this Court, in the case of Marbury v. Madison, 1 Cranch 137, declared that part of the Judiciary Act which empowered the Supreme Court to issue the writ of mandamus to be unconstitutional so far as it operated as an act of original jurisdiction. Because this case was decided nearly fourteen years after the law was passed, and we must construe the act as if it were all constitutional, because Congress certainly so considered it, and we are now inquiring into what was their intention, in its various provisions, which can only be known by construing the act as a whole, embracing its several parts, of which the power in question was one. But if the other Circuit Courts of the United States, under the powers given to them, cannot, as has been decided by this Court, issue the writ of mandamus, then the Circuit Court of this District cannot do it under the powers given to it, because its powers are the same with those of the others. For, by the third Section of the act establishing it, it and its judges, are declared to have all the powers by law vested in the Circuit Courts, and the judges of the Circuit Courts of the United States, and even supposing that to refer to the powers of the Circuit Courts, as organized by the Act of 1801, that does not vary them, because, by the tenth Section of that act, those courts are invested with all the powers heretofore granted by law to the Circuit Courts of the United States -- that is, those by the Judiciary Act, unless where otherwise provided by that act, and there is no pretence that there is any power given in that act which affects this question. If then, the jurisdiction and the powers of the Circuit Court of this [p652] District are the same with the jurisdiction and powers of the other Circuit Courts of the United States, and if, as has been solemnly decided by this Court, that jurisdiction and those powers do not authorize the other Circuit Courts to issue the writ of mandamus, it would seem to follow as an inevitable consequence that neither can the Circuit Court of this District issue that writ.
Finally, it was argued that, if all the other sources of power failed, there is a sufficient one to be found in that section of the Act of 1801 establishing the Circuit Court of this District by which it is enacted that the laws of Maryland as they now exist shall be and continue in force in that part of the District which was ceded by that State to the United States, &c. The argument founded upon this section is in substance this: the laws of Maryland are declared to be in force in this part of the District; the common law of England constitutes a part of those laws; by the common law, in such a case as this, a writ of mandamus would lie; therefore, the Circuit Court of this District can issue a mandamus in this case. This part of the argument proceeds upon the principle that the adoption of the common law, per se, authorizes the issuing of the writ. But it must be remembered that the adoption of the common law here cannot give any greater power than the same common law would give to the courts of Maryland, from which State it is adopted. Now, in M'Cluny v. Silliman, it was decided that a State court could not issue a mandamus to an officer of the United States; consequently, it follows that no court in Maryland could have issued the writ in this case; and yet the argument which I am now considering seeks to maintain the position that, whilst it is conceded that a Maryland court, with the common law in full force there, could not have issued this writ, the Circuit Court of this District has the authority to do so by reason of the adoption of that very law which would not give the authority to do it there.
It does seem to me that to state this proposition is to refute it. The object of this provision appears to me to have been plainly this: that the citizens of that part of this District which formerly belonged to Maryland should, notwithstanding the cession, continue to enjoy the benefit of the same laws to which they had been accustomed, and that, in the administration of justice in their courts, there should be the same rules of decision, thus placing the citizens of this District substantially in the same situation in this respect as the citizens of the several States, with this difference only, that, [p653] whilst in the States there are Federal and State courts, in the one or the other of which justice is administered according to the character of the parties and other circumstances, in this District, by its judicial organization, the same justice which in the States is administered by the two classes of courts is here dispensed by the instrumentality of one court, viz., the Circuit Court of this District. But that, as in the states, the Federal Circuit Court cannot issue the writ of mandamus, because the jurisdiction and powers given to them by Congress do not authorize it, so here, the Circuit Court of this District cannot issue it, by virtue of the jurisdiction and powers given to it by Congress, (exclusively of the adoption of the laws of Maryland) because, exclusively of those laws, its jurisdiction and powers, as I think I have shown, are neither more nor less, in reference to this subject, than those of the other Circuit Courts of the United States. And as in the States, the State courts cannot issue it, although the common law is in force there, so the Circuit Court of this District cannot issue it, although the common law, by the adoption of the laws of Maryland, is in force here, it being, in my opinion, impossible to maintain the proposition that the adoption of the common law here can impart a greater authority than it does to the courts of the very State from which it was adopted.
The result of that adoption as it regards this question may, as it seems to me, be summed up in this one conclusion: that, as in Maryland the common law is in full force which authorizes the writ of mandamus, and yet a Maryland court can only issue it to a Maryland officer, and not to an officer of the United States, so here, the same common law, upon the same principles, would authorize the Circuit Court of this District to issue the writ to an officer of the District of Columbia, the duties of whose office pertained to the local concerns of the District, but not to an officer of the United States.
Under every aspect in which I have viewed the question, I feel a thorough conviction that the Circuit Court of this District had not power to issue the writ in question, and, consequently, I am of opinion that the judgment demanding a peremptory mandamus, should be reversed.
Mr. Justice CATRON concurred in opinion with the Chief Justice, and Mr. Justice BARBOUR.