Where the matter in controversy was the right to the mayoralty
in Georgetown, the salary of which office was $1,000 per annum,
payable monthly, and the duration of which office was two years,
this Court has jurisdiction of a case coming up by writ of error
from the Circuit Court of the United States for the District of
Columbia.
The fact that the salary is payable monthly makes no difference,
the appropriation, when made, being made for the whole sum.
A judgment of ouster being rendered in the circuit court, and
the defendant having filed the necessary bond and sued out a writ
of error to this Court, this amounts to a supersedeas upon the
judgment.
The case is not a proper one for a mandamus from this Court to
the judges below or for a rule upon them to show cause why they
should not carry out the judgment of ouster.
The fact that the term of office will be about to expire when
the writ of error is returnable,
viz., December term,
1860, is not a sufficient reason for the interposition of this
Court at the present stage of the proceedings.
This was an application for a peremptory mandamus or for a rule
to show cause why the judges of the Circuit Court of the District
of Columbia should not execute a judgment in that court by which
Henry Addison had been directed to be
Page 63 U. S. 175
ousted of the mayoralty of Georgetown. Addison had sued out a
writ of error, returnable to December term, 1860, and filed the
usual bond, which the circuit court decided to amount to a
supersedeas, and accordingly suspended the judgment of ouster.
Page 63 U. S. 181
MR. JUSTICE McLEAN delivered the opinion of the Court.
"Richard R. Crawford, of the City of Georgetown, in the District
of Columbia, states that on the fourth Monday of February, 1857, in
pursuance of an act of Congress to amend the charter of Georgetown,
approved the 31st May, 1830, and an act to amend the same charter,
approved the 11th August, 1856, by ballot to elect some fit and
proper person, having the qualifications required by law, to be
mayor of the corporation of Georgetown, to continue in office two
years, and until a successor shall be duly elected, said Crawford,
being duly qualified, received the greatest number of legal votes,
and was elected mayor of the said corporation, and took the oath as
mayor, and continued to discharge the duties for two years."
"On the fourth Monday of February, 1859, another election was
held for mayor, at which he received the greatest number of legal
votes, and was by the judges declared to be duly elected, on which
he presented himself in the presence of the two boards of the
common council of the said corporation, and claimed that the oath
should be administered, but the said two boards, alleging that
there was a mistake in the returns, and that there was in fact a
majority of one vote in favor of Henry Addison, who was the
opposing candidate, and to whom the oath of office was
administered, and who took possession of the office, and continues
to exercise the duties of the same."
"And your petitioner represents that at the ensuing term of
Page 63 U. S. 182
the Circuit Court of the District of Columbia, being the court
then and still having jurisdiction in the premises, an information,
in nature of
quo warranto, upon the relation of your
petitioner was filed in the said court by Robert Ould, Esq., the
attorney of the United States for the District of Columbia, on
which due process was issued against the said Henry Addison,
requiring him to answer before the said court by what warrant he
claimed to exercise the said office of mayor of the corporation of
Georgetown."
"And the said Addison having pleaded to the said information,
and certain replications having been made to said plea by the said
attorney of the United States, certain issues were joined thereon
at the October term, 1859, of the said court, and amongst others
the issue to try whether the said Henry Addison had, as alleged by
him in his plea, received the greatest number of legal votes for
mayor at the said last-mentioned election; and upon the issue it
was found by the jury, duly empanelled and sworn to try the same,
that the said Henry Addison did not receive the greatest number of
legal votes for mayor at the said election; and thereupon the said
court rendered judgment of ouster against the said defendant, and
for the costs of your petitioner, as relator in the said
proceeding, to-wit, on the ___ day of December instant."
"Whereupon due process for the execution of the said judgment to
remove the said defendant and for the recovery of the costs
aforesaid was duly prayed of the said court, but the said Henry
Addison, pretending that the proceedings upon the said information
in matter of law may be reviewed by this Honorable Court upon writ
of error, sued out such writ of error, filed a bond, and caused a
citation to be issued and served upon your petitioner to appear and
answer to the said writ of error on the return thereof, to-wit, at
the December term, 1860. And thereupon the said circuit court, for
the express and sole reason that such writ of error and bond
operated as a supersedeas, which is expressed in their order in
that behalf, refused to execute the said judgment, or to issue any
process to remove the said defendant or for the recovery of the
costs aforesaid. "
Page 63 U. S. 183
"Your petitioner is advised and humbly submits that this
Honorable Court hath no jurisdiction of the matter of the said writ
of error, and that the same must be dismissed on the return
thereof. But as hereinbefore stated, the said writ is not
returnable until December term, 1860, and the term of office for
which your petitioner was elected as aforesaid will then be about
to expire."
"Your petitioner is advised that his only adequate and proper
remedy is by a mandamus from this Honorable Court, directed to the
judges of the said Circuit Court of the District of Columbia,
commanding them to issue process for the execution of the judgment
aforesaid. And for that the transcript of record herewith filed
plainly expresses on its face the sole cause for the refusal of
such process, so as distinctly to present the whole matter of law
for the consideration of the court, he prays that a peremptory
mandamus may issue, or, in the alternative, that such interlocutory
order may be passed to that end, as this Court may direct."
Under the thirteenth section of the Judiciary Act of 1789, the
Supreme Court has
"power 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 United States."
The power of the circuit courts to issue the writ of mandamus is
confined exclusively to those cases in which it may be necessary to
the exercise of their jurisdiction.
Kendall v. United
States, Curtis, 12th vol., 851.
On a mandamus, a superior court will never direct in what manner
the discretion of an inferior tribunal shall be exercised, but they
will, in a proper case, require the inferior court to decide.
Life Insurance Company v.
Wilson's Heirs, 8 Pet. 294. It has repeatedly been
declared by this Court that it will not by mandamus direct a judge
as to the exercise of his discretion, but it will require him to
act.
38 U. S. 13 Pet.
279.
A mandamus is a remedy where there is no other appropriate
relief, and it is only resorted to on extraordinary occasions.
The writ of error is a common law writ, and is almost as old as
the common law itself. This writ, to operate as a
Page 63 U. S. 184
supersedeas, must be issued within ten days after the rendition
of the judgment, and on security being given for a sum exceeding
the amount of the judgment. Where no supersedeas is required,
security for the costs of the supreme court must be entered. So
that, in these respects, the writ of error is said to be a writ of
right, though regulated by statute.
The condition on the supersedeas bond is:
"that the said Henry Addison shall prosecute the said writ of
error to effect, and answer all damages and costs if he shall fail
to make his plea good, then the above obligation to be void;
otherwise to be and remain in full force and virtue."
In
Columbus Insurance Company v.
Wheelright, 7 Wheat. 534, it was held that a writ
of error will lie from this Court upon the judgments of the circuit
courts awarding a peremptory mandamus if the matter in controversy
is of sufficient value. But in that case it did appear that the
office of director of the insurance company, which was the matter
in controversy, was of less value than one thousand dollars and
that its value was to be ascertained by the salary paid; the Court
held it had no jurisdiction.
The weight of this authority is not lessened by the fact on
which the question of jurisdiction turned. The salary of the Mayor
of Georgetown was established by law at one thousand dollars per
annum, and if this be the matter of controversy, it settles the
jurisdiction.
But it is contended that a year's salary cannot be regarded as
the amount in controversy, as the salary is paid monthly or
quarterly, as may be most convenient to the mayor. The law
regulates the pay of all salaried officers by the year, and the
estimates are so appropriated in the reported bills. Any departure
from this annual allowance would derange more or less the fiscal
action of a government or corporation.
But it is said that the remedy by writ of error is inappropriate
and ineffectual, as the office of the relator will expire about the
time the writ of error is made returnable. This may be a defect in
the law, which the legislative power only can remove. A writ of
error returnable instanter would give
Page 63 U. S. 185
more speedy relief, and might be more satisfactory, but we must
administer the law as we find it.
The bond and security given on the writ of error cannot be
regarded as an idle ceremony. It was designed as an indemnity to
the defendant in error, should the plaintiff fail to prosecute with
effect his writ of error.
We can entertain no doubt that the writ of error is the legal
mode of revising the judgment of the circuit court in this case,
and that security having been given on the judgment, as the law
requires, it is superseded.
MR. JUSTICE WAYNE and MR. JUSTICE GRIER dissented.