private right." These changes in State laws, however, have not enlarged the jurisdiction of the United States Circuit Courts. The general jurisdiction of the United States Circuit Courts never has extended to a proceeding for an original writ of mandamus.3 An application for a mandamus is not a suit of a civil nature, within the meaning of the removal acts.4

Indiana v. Lake Erie & W. R. | Cas. 355, 1 Hall Law J. 429, BrunCo., 85 Fed. 1. ner Col. Cas. 249, 5 Hughes 1);

Hall v. Union Pac. R. Co., 11 Fed. Cas. 268, 3 Dill. 515, 6 Chi. Leg. News 307, 8 Am. Law Rev. 775, affirmed in Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. 428.

These special statutes do not enlarge the jurisdiction of the United States Circuit Courts by removal from State courts, but affect their original jurisdiction only. The right of removal depends upon the general statute, ante § 7.

4 This doctrine is firmly established:

Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. 743, affirming Rosenbaum v. Board of Sup'rs, 28 Fed. 223, 11 Sawy. 620; Heine v. Levee Com'rs, 19 Wall.

655, 22 L. 223;

Fuller v. Aylesworth, 43 U. S. App. 657, 21 C. C. A. 505, 75 Fed. 694;

Denton v. Baker, 48 U. S. App. 235, 24 C. C. A. 476, 79 Fed. 189; Shepard v. Tulare Irr. Dist., 94

Fed. 1;

Indiana v. Lake Erie & W. R. Co., 85 Fed. 1;

In re Forsyth, 78 Fed. 296;
Gares v. Northwest Nat. B., L. &
I. Ass'n, 55 Fed. 209;

In re Vintschger, 50 Fed. 459;
Ohio v. Columbus & Xenia R.
Co., 48 Fed. 626;

United States v. Pearson, 32 Fed. 309, 24 Blatchf. 453;

American Union Tel. Co. v. Bell Telephone Co., 1 Fed. 698, 1 McCr. 175;

Sanford v. Portsmouth, 21 Fed. Cas. 363, 2 Flip. 105, 6 Cent. Law J. 147, 2 Month. Jur. 14, 6 N. Y. Wkly. Dig. 335;

Smith v. Jackson, 22 Fed. Cas. 575, 1 Paine 453;

United States v. Smallwood, 27 Fed. Cas. 1129, 1 Chi. Leg. News

Graham v. Norton, 15 Wall. 427, 321, 2 Am. Law. T. Rep. U. S. Cts.

21 L. 177;

Riggs v. Johnson County, 6 Wall. 166, 18 L. 768;

McClung v. Silliman, 6 Wheat. 598, 5 L. 340;

McIntire v. Wood, 7 Cranch 504, 3 L. 420 (overruling Gilchrist v. Collector of Charleston, 10 Fed.

109, 1 Leg. Gaz. 47;

United States v. Union Pac. R. Co., 28 Fed. Cas. 341, 2 Dill. 527.

"If not a suit of a civil nature, within the meaning of the act of 1789, it cannot be one within the meaning of the same language in the act of 1875. A mandamus,

The rule that the United States Circuit Courts cannot, under the general statute, take jurisdiction of an original suit for a writ of mandamus, cannot be evaded by bringing

therefore, is not a suit of a civil nature, within the meaning of any provision of the act of 1875, and is not removable under it." Rosenbaum v. Board of Sup'rs, 28 Fed. 223, 11 Sawy. 620.

Delaware v. Delaware & A. Telegraph & Telephone Co., 47 Fed. 633, affirmed by Circuit Court of Appeals, Delaware & A. Telegraph & Telephone Co. v. Delaware, 3 U. S. App. 30, 2 C. C. A. 1, 50 Fed.

Illinois v. Rock Island & P. R. Co., 71 Fed. 753;

This reasoning applies with equal | 677; force to the removal of mandamus proceedings under the act of 1887-8, ante §7. The question is elaborately discussed by Judge Baker in Indiana v. Lake Erie & W. R. Co., 85 Fed. 1,

and this conclusion was reached by him:

"A proceeding for an original writ of mandamus, commenced in a State court, is not a suit of a civil nature at law or in equity, within the meaning of the act of March 3, 1887, or of the act of August 13, 1888, for the re-enrollment of the former act; and therefore it is not removable, under the provisions of those acts, from a State court into a Circuit Court of the United States."

There are a few cases in which jurisdiction upon removal in mandamus proceedings has been assumed without questioning whether they were suits of a civil nature.

New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S. 135, 26 L. 96 (decided by Justice Harlan who afterwards dissented in Rosenbaum

v. Bauer);

75;

Washington v. Northern Pac. R. Co., 75 Fed. 333;

Indiana v. Lake Erie & W. R. Co., 83 Fed. 284.

It is clear that all these cases should have been remanded to the State courts because not "of a civil nature," as that term is used in the removal acts and the decisions above cited. One of them was afterwards remanded.

Indiana v. Lake Erie & W. R. Co., 85 Fed. 1.

So there are a few Circuit Court cases in which the removability of mandamus proceedings has been asserted, on the ground that they are of a civil nature, although these cases admit that such suits cannot be originally brought in the United States Circuit Courts.

Colorado v. Colorado Cent. R. Co., 42 Fed. 638;

Erwin v. Walsh, 27 Fed. 579, 23 Blatchf. 535;

Washington Imp. Co. v. Kansas Pac. R. Co., 29 Fed. Cas. 360, 5 Dill.

Tennessee v. Whitworth, 22 Fed. 489.

Tennessee v. Whitworth, 22 Fed. 81 (both decided by Justice Matthews who likewise afterwards dissented in Rosenbaum v. Bauer);

Missouri v. Bell Telephone Co., 23 Fed. 539;

The case of Erwin v. Walsh is based upon Washington Imp. Co. v. Kansas Pac. R. Co.; and both cases are, in effect, overruled by Rosenbaum v. Bauer, afterwards decided by the Supreme Court. Colorado v. Colorado Cent. R. Co.,

in the form of a suit in equity, an action that in substance is a suit for a mandamus.5

The United States Courts can issue writs of mandamus "which may be necessary for the exercise of their respective jurisdictions."6 But this incidental power to issue writs of mandamus to make effective the jurisdiction of the United States Courts, does not make removable any mandamus cases begun in State courts.7

A Circuit Court of the United States, as a court of equity,

though decided after Rosenbaum v. Bauer, with which it is in direct conflict, does not refer to it, but is based on the overruled case of Washington Imp. Co. v. Kansas Pac. R. Co. These cases are, therefore, without value as precedents at the present time upon this question.

But if these cases were correct as applied to the removal act of 1875 before its amendment, they would not be controlling under the act of 1887-8, for the reason, hereafter discussed (§ 63), that jurisdiction by removal is now limited to cases of which the Circuit Courts are given original jurisdiction by amended §1 of the act of 1875, ante § 6.

In one case it was held that a mandamus proceeding, begun by railroad commissioners to compel a railroad company to comply with an order to elevate its track, was not removable, for that it was an exercise of the police power of the State.

Parsons v. Marye, 23 Fed. 113, this objection was ignored by the Circuit Court, the remedy by mandamus having been taken away,

Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91, 27 L. 468; but its judgment was reversed by the Supreme Court upon another question.

Marye v. Parsons, 114 U. S. 325, 5 Sup. Ct. 932, 29 L. 205. Parsons v. Marye, supra, was followed in

Norfolk Trust Co. v. Marye, 25 Fed. 654;

but these cases have little, if any, value as precedents since the decisions of the Supreme Court in

Ex parte Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. 216;

Smith v. Bourbon County, supra; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. 972, 34 L. 304. 6 Rev. St. U. S., § 716.

The instances in which this power has been exercised are far too numerous for citation here. Perhaps the case in which the subE.ject is the most elaborately discussed is

Woodruff v. New York & N. R. Co., 59 Conn. 63, 20 Atl. 17. 5" The objection is one of substance, and not merely of form. It cannot be waived, and it cannot be ignored." Smith v. Bourbon County, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. 73. In

Riggs v. Johnson County, 6 Wall. 166, 18 L. 768.

7 No suit for a writ of mandamus that may be necessary for the exercise of the jurisdiction of a United States Court, can properly be brought in a State court; and a

may, in a proper case, grant a mandatory injunction.8 A suit wherein a mandatory injunction may be granted by the

There are many cases in the United States Circuit Courts in which mandatory injunctions have been granted. Coe v. Louisville & N. R. Co., Northern Pac. R. Co., supra, is re3 Fed. 775;

Wells v. Oregon Ry. & N. Co., | 912; but there is a vigorous dis15 Fed. 561, 8 Sawy. 600;

senting opinion by Judge Caldwell

Baltimore & O. R. Co. v. Adams who seems to have the best of the

United States Circuit Court may be removed thereto if begun in a State court.9

v. Louisville & N. R. Co., 31 U. S. | Fed. Cas. 1179, 9 Wkly. Notes Cas. App. 252, 14 C. C. A. 290, 67 Fed. 35;