After a return unsatisfied of an execution on a judgment in the
circuit court against a county for interest on railroad bonds,
issued under a state statute in force prior to the issue of the
bonds, and which made the levy of a tax to pay such interest
obligatory on the county, a mandamus from the circuit court will
lie against the county officers to levy a tax, even although prior
to the application for the mandamus a state court have perpetually
enjoined the same officers against making such levy; the mandamus,
when so issued, being to be regarded as a writ necessary to the
jurisdiction of the circuit court which had previously attached,
and to enforce its judgment, and the state court therefore not
being to be regarded as in prior possession of the case.
The case somewhat fully stated was thus:
Statutes of Iowa enact:
That the county commissioners of any county may submit to the
people of it at any election, the question whether the county will
aid to construct any road which may call for extraordinary
That when a question so submitted involves the borrowing of
money, the proposition of the question must be accompanied by a
provision to lay a tax for the payment thereof in addition to the
usual taxes, and no vote adopting the question proposed will be of
effect unless it adopt the tax also.
That the county judge, on being satisfied that the above
requirements have been substantially complied with, and that a
majority of the votes cast are in favor of the proposition
submitted, shall cause certain records to be made, after which
Page 73 U. S. 167
vote and the entry thereof an the county records, shall have
the force and effect of an act of the General Assembly.
That neither contracts made under propositions thus adopted, nor
the taxes appointed for carrying them out, can be rescinded.
That money raised for such purposes is specially appropriated,
and constitutes a fund distinct from all others in the hands of the
treasurer, until the obligation assumed is discharged.
The questions, whether the foregoing statutory provisions
authorized a county to aid in the construction of a railroad, and
whether, if so, the legislature could, under the state
constitution, confer such power upon counties, was adjudged in
several decisions by the Supreme Court of Iowa in the affirmative.
After these decisions, bonds were issued by several counties in the
state, in aid of the construction of railroads. Subsequently to the
issuing and negotiation of them, the Supreme Court of Iowa, on a
review of their former decisions, overruled these decisions, and
held that the above statute did not confer the power in question
upon counties, and that the legislature could not constitutionally
confer the power, and that bonds issued by the counties and cities
of the state, in aid of the construction of railroads, were void.
This Court, however, in the case of Gelpcke v. City of
in other cases afterwards, refused to follow these later decisions
of the Iowa court, and established, for the federal courts, that
the earlier Iowa decisions, affirming the power to issue the
bounds, should be regarded as decisive of the question, as to all
bonds issued while those decisions remained unreversed.
Notwithstanding which, however, the state courts apparently
considered bonds in like case still void.
While the state decisions, that the county could
such bonds, were yet unreversed, the commissioners of Johnson
County issued, in a negotiable form, a large number of coupon
bonds, payable to bearer. The bonds recited on
Page 73 U. S. 168
their face that they were issued under authority of the act of
Assembly, and of the required vote &c., and (as the fact was)
that they had been issued by the county for stock in a railroad
Marcus Riggs having become the holder of several of them,
brought suit and obtained judgment in the Circuit Court of the
United States for Iowa; but execution being issued, it was returned
There was nothing which by the laws of Iowa --
where statutes exempt public property of a county and the property
of the private citizen from being levied on to pay debts of a civil
corporation -- could be found to satisfy the execution. After this,
various taxpayers of the county filed a bill in chancery in one of
the state courts against the county commissioners (none of the
bondholders, however, being made parties to the proceeding or
having notice of it), alleging that the bonds and coupons were void
from the beginning, and had been repeatedly held so by the Supreme
Court of Iowa, and praying a perpetual injunction to the
commissioners against levying any tax to pay them, which injunction
the state court granted. After
the injunction upon this
proceeding instituted in the state court had been issued, Riggs --
by petition reciting his judgment, unsatisfied after execution, and
the fact that it was obtained on the bonds such as above described,
reciting also the vote of the county to pay the tax,
that it had the effect of a law -- applied to the circuit court of
the United States for a mandamus to the commissioners to compel
them to lay a tax,
"sufficient to pay the amount of the said judgment and cost and
of the principal and interest falling due for each year on said
bonds, and especially the interest warrants or coupons included in
the aforesaid judgment, and to continue the same from year to
year, until the said bonds and coupons or interest warrants are
in payment for the coupons or interest warrants
annexed to said bonds, now due and unpaid, an not included in the
aforesaid judgment, and of such coupons or interest warrants as
The commissioners answered, making as return the injunction
previously laid on them by the state court. Riggs demurred to
Page 73 U. S. 169
answer, assigning four causes of demurrer, the substance of the
one chiefly relied on, and considered here, being, that "after the
judgment was rendered" in the circuit court, the state court had
"no jurisdiction, power or authority" to prevent him "from using
the PROCESS of this Court by writ of mandamus to collect his
The circuit court overruled the demurrer, and judgment was given
for the commissioners. The case was now here on error.
To better understand the argument it may be well to state:
1. That by an act of Congress (sometimes called the Process
Act), passed, first in 1789, and improved and made permanent in
1792, [Footnote 3
] it was
"That the forms of writs and executions, . . . and the modes of
process, in suits at common law, . . . shall be the same in each
state respectively as now used or allowed in the supreme courts of
And by a later act [Footnote
] (May, 1828):
"That writs of execution, and other final process issued on
judgments rendered in the federal courts, and the proceedings
shall be the same in each state as are now used in
the courts of such state."
2. That in the Revised Statutes of Iowa (A.D. 1860), a mandamus
is stated to be, and thus regulated under the head:
ACTION BY MANDAMUS
"§ 3761. An order of a court of competent jurisdiction
commanding an inferior tribunal, corporation, board, or person to
do or not to do an act, the performance or omission of which the
law specially enjoins as a duty."
"§ 3762. That the plaintiff shall state his claim and facts
sufficient to constitute a cause for such claim."
"§ 3766. That the pleadings and other proceedings
Page 73 U. S. 170
in which a mandamus is claimed shall be the same in all
respects, as nearly as may be, as in an ordinary action for the
recovery of damages.
"§ 4181. That when the action
of mandamus is by a
private person there may be joined therewith the injunction of
chapter 155, . . . and the action
shall be by ordinary
3. That by the fourteenth section of the Judiciary Act,
] it is enacted that
circuit courts among others named:
"Shall have power to issue writs of scire facias,
habeas corpus, and other writs not specially provided for by
which may be necessary for the exercise of their
and agreeable to the principles and
usages of law."
4. That the same act, in the thirteenth section [Footnote 6
] enacts that:
"The Supreme Court shall . . . have power to issue . . . writs
of mandamus, . . . to any courts appointed or persons holding
office ~ under the authority of the United States."
At the same time with the present case was another, Thompson
v. Henry County,
exactly like it in principle the two being
Page 73 U. S. 184
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Application of the relator to the circuit court was for a
mandamus to compel the defendants, as the supervisors of
Page 73 U. S. 185
the county, to assess a tax upon the taxable property of the
county to satisfy the judgment described in the transcript.
Pursuant to the usual practice the court granted the alternative
writ, commanding the defendants to assess the taxes, or show cause
to the contrary, on or before the second day of the next term of
the court. Service of the writ was duly made, but they neglected to
levy the tax, and elected to show cause against the
They appeared, and in their return to the writ, they deny that
it is their duty to levy the tax to pay the judgment, or that the
relator is entitled to a peremptory writ, and allege that they have
been enjoined not to assess a tax for that purpose by the state
court, and aver that they cannot do so without being guilty of
contempt and becoming liable to punishment. Plaintiff demurred
specially to the return, and assigned the following causes of
demurrer: 1. That the relator was no party to the proceedings in
the state court. 2. That the proceedings in the state court were
subsequent to the judgment of the relator in the circuit court. 3.
That the state court had no jurisdiction, power, or authority, to
prevent the relator from using the process of the circuit court to
collect his judgment. 4. That the decree for an injunction rendered
in the state court was no bar to the application of the relator for
relief. But the court overruled the demurrer and decided that the
return was sufficient. Judgment was thereupon rendered for the
defendants, and the plaintiff sued out this writ of error.
I. Power was vested by law in the county judge of a county in
the state of Iowa, to submit the question of the people of his
county whether they would construct or aid in the construction of
roads or bridges, but when the question proposed involved the
borrowing or the expenditure of money, the requirement was that it
must be accompanied by a provision to lay a tax for the payment of
the same in addition to the usual taxes, and the legislative
enactment was, that such special tax, if voted under those
circumstances, should be paid in money and in no other manner.
II. Revision of the proceedings was also devolved upon
Page 73 U. S. 186
the county judge; but if satisfied that they were correct, and
that a majority of the votes had been cast in favor of the measure,
it was made his duty to cause the proposition and the result of the
vote to be entered at large in the minutebook of the county, and
the same section of the act provides that the entry, when so made,
shall have the force and effect of an act of the General Assembly.
Moneys so raised for such a purpose are regarded as specially
appropriated by law and as constituting a fund, distinct from all
others, in the hands of the treasurer, until the obligation assumed
is discharged. Contracts made under such regulations are declared
irrepealable, and the provision is that the taxes appointed for
carrying the object into effect cannot be rescinded. [Footnote 7
III. Corporation defendants, acting under the authority of those
provisions of law, on the first day of December, 1853, issued fifty
bonds to the Lyons Iowa Central Railroad Company, of one thousand
dollars each, with interest warrants, at the rate of seven percent,
payable semiannually. Recitals in the respective bonds are that
they were issued by the authority of that act of the General
Assembly, and of the required vote of the qualified voters of the
county, taken in pursuance of that act. They were issued in payment
of a subscription of five hundred shares in the capital stock of
the plaintiff sued the defendants in the circuit court and
recovered judgment against them for the same in the sum of five
thousand one hundred and eighty-nine dollars and twenty-six cents,
which is in full force and unsatisfied. Execution was duly issued
on the same, and the marshal returned that he found no corporate
property. Unable to enforce payment of his judgment, through the
ordinary process of an execution, the plaintiff applied to the
circuit court in which the judgment was recovered, for a mandamus
Page 73 U. S. 187
the defendants to levy the tax as authorized by the people of
the county at the time they voted to aid in the construction of the
railroad and to issue the bonds.
V. Principal defense stated in the return of the supervisors is,
that they had been enjoined from levying the tax as prayed, by a
prior decree of the state court, and the record shows that the
state court, at the suit of a taxpayer of the county, issued an
injunction perpetually enjoining the defendants from levying the
special tax voted at the time the proposition to grant aid to the
railroad was adopted. Want of jurisdiction in the circuit court was
not alleged in the return, nor was any such ground assumed by the
circuit judge who refused the writ. Experienced counsel, however,
have made that point in this Court, and it becomes the duty of the
Court to determine it before examining the merits. Jurisdiction is
defined to be the power to hear and determine the subject matter in
controversy in the suit before the court, and the rule is universal
that if the power is conferred to render the judgment or enter the
decree, it also includes the power to issue proper process to
enforce such judgment or decree. [Footnote 8
Express determination of this Court is, that the jurisdiction of
a court is not exhausted by the rendition of the judgment, but
continues until that judgment shall be satisfied. Consequently, a
writ of error will lie when a party is aggrieved in the foundation,
proceedings, judgment, or execution of a suit in a court of record.
Process subsequent to judgment is as essential to jurisdiction
as process antecedent to judgment, else the judicial power would be
incomplete and entirely inadequate to the purposes for which it was
conferred by the Constitution. Congress, it is conceded, possesses
the uncontrolled power to legislate in respect both to the form and
effect of executions and other final process to be issued in the
Page 73 U. S. 188
courts. Implied concession also is, that Congress might
authorize such courts to employ the writ of mandamus to enforce a
judgment rendered in those courts in a case where the ordinary
process of execution is inappropriate, and where the judgment
creditor is without other legal remedy; but the defendants insist
that Congress has not made any such provision. Federal courts, it
is argued, cannot act in any way on state officers, except in the
specified cases in this Court under the twenty-fifth section of the
Judiciary Act. Support to that proposition is attempted to be drawn
from the last clause of the thirteenth section of that act, which,
in terms, authorizes this Court 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. [Footnote
Neither state courts nor state officers are named in the clause,
and the argument is, that the authority to issue the writ does not
extend to any courts or persons except those enumerated.
Expressio unius est exclusio alterius.
consideration of that point, however, is unnecessary, as there is
no application to this Court for any such writ. Examination of the
record, even for a moment, will show that the application for the
writ in this case was to the circuit court, and that the case was
brought here by writ of error to the judgment of that court. But
this Court cannot issue the writ of mandamus in any case in the
exercise of original jurisdiction, as no such power is conferred by
the Constitution. Direct decision of this Court in the case of
Marbury v. Madison,
] was that the clause of the thirteenth
section of the Judiciary Act referred to by the defendants, so far
as it professes to authorize this Court to issue the writ to
persons holding office under the United States, other than judicial
officers, was not warranted by the Constitution, because it
contemplated the exercise of original jurisdiction in a case other
than those enumerated in the instrument.
Second proposition of the defendants is, that the fourteenth
Page 73 U. S. 189
section of the Judiciary Act does not confer the power upon the
federal courts to issue the writ to a state officer in any case.
They argue that it does not authorize those courts to issue it at
all, as it is not one of the writs named in the section, and is
specially provided for, as appears in the preceding section.
Nothing, however, is better settled than the rule that the circuit
courts in the several states may issue the writ in all cases where
it may be necessary, agreeably to the principles and usages of law,
to the exercise of their respective jurisdictions. Such was the
construction given to the fourteenth section of the Judiciary Act
at the same time that the last clause of the preceding section,
except as applied to judicial officers, was held to be
unconstitutional and void, and that construction has been followed
to the present time. [Footnote
None of the circuit courts in the several states can issue the
writ as an exercise of original jurisdiction, any more than this
Court, but they may issue it whenever it is necessary, agreeably to
the principles and usages of law, to the exercise of their proper
jurisdiction, and their judgments in such cases may be examined in
this Court, on writ of error, under the twenty-second section of
the Judiciary Act. Objections to the jurisdiction of the circuit
court, and of this Court, are therefore overruled.
VI. Before proceeding to consider the operation and effect of
the injunction issued by the state court, it becomes necessary to
examine more closely into the source, nature, and operation of
federal process, and the jurisdiction and power of the circuit
courts in the several states. Circuit courts were created by the
act of Congress, under which the judicial system of the United
States was organized, but the act made no provision for the forms
of process. Forms of processes in the federal courts were regulated
by the act of Congress, which was passed five days later. [Footnote 13
Writs and processes issuing from a circuit court were required
by that act to bear the test of the Chief Justice of
Page 73 U. S. 190
the Supreme Court, to be under the seal of the court, and to be
signed by the clerk. By the second section of the act, it was
"the forms of writs and executions, . . . and the modes of
process, in suits at common law, . . . should be the same as were
then used in the supreme courts of the states."
Subsequent act adopted substantially those provisions, and made
them permanent. [Footnote
] Legal effect of those enactments was that Congress adopted
the forms of writs and executions, and the modes of process, as
then known and understood in the courts of the states, for use in
the several circuit courts.
Modes of process and forms of process were in use in the states
at that period other than such as were known at common law as
understood in the English courts. Radical changes had been made in
some of the states, not only in the forms of mesne process, and the
rules of pleading, but in the modes of process in enforcing
judgment, as was well known to Congress when the Judiciary and
Process Acts were passed.
Executions, it is admitted, may be issued by the circuit court,
but the power of such courts to issue the other writs necessary to
the exercise of jurisdiction, is equally clear, with the single
restriction that the writ, and the mode of process, must be
agreeable to the principles and usages of law. Usages of law, and
not of the common law, it will be observed, are the words of the
provision, which, doubtless, refers to the principles and usages of
law known and understood in the state courts at the date of that
Forms of process, mesne and final, and the modes of process
varied in essential particulars from the principles and usages of
the common law, and in many cases they were different in the
different states. Intention of Congress, in passing the Process
Acts, was that the forms of writs and executions, and the modes of
process and proceedings in common law suits in the several circuit
courts, should be the same as they were at that time in the courts
of the respective
Page 73 U. S. 191
states. Instead of framing the forms of process, and prescribing
the modes of process, Congress adopted those already prepared and
in use in the respective states, not as state regulations, but as
the rules and regulations prescribed by Congress for use in the
several circuit courts. Adopted as they were by an act of Congress,
they became the permanent forms and modes of proceeding, and
continue in force wholly unaffected by any subsequent state
legislation. Alterations can only be made by Congress or by the
federal courts acting under the authority of an act of
Practical effect of the course pursued was that the forms of
writs and executions and the modes of process and proceedings were
the same whether the litigation was in the state court or in the
circuit court of the United States. They were not always the same
in different states nor in different circuits; and in some
instances they were widely different in the different states of the
same circuit. Those diversities, or many of them, continue to the
Great diversity in the forms of real actions and of indictments
were the necessary effect of the system. Different rules of
pleading necessarily followed. Modes of process also were
different, both in respect to mesne and final process. Attachment
of personal and real property upon mesne process is allowed in one
district, while the power to create any such lien in the service of
such process is entirely unknown in another district, even in the
same circuit. Lands of the debtor were subject to seizure and sale
on execution in one district, while in another real property was
only subject to seizure and an extent corresponding to a modified
as at common law. Money judgments in one district
became a lien upon the lands of the judgment debtor, while in
another the judgment creditor must first seize the lands before he
was entitled to any such preference.
Remedies on judgments against municipal corporations partook of
the same diversity in the different districts as that appearing in
the modes of process to enforce judgments recovered against private
persons. Judgment against
Page 73 U. S. 192
such a corporation might be enforced in one district by levying
the execution, as issued against the corporation, upon the private
property, personal or real, of any inhabitant of the municipality,
while in another the appropriate remedy, in case the execution
against the corporation was returned nulla bona,
mandamus to compel the proper officers of the corporation to assess
a tax for the payment of the judgment. [Footnote 15
Circuit courts, by virtue of those acts of Congress, became
armed with the same forms of writs and executions and vested with
the authority to employ the same modes of process as those in use
in the state courts. Permanent effect of that wise measure was,
that the forms of writs and executions and the modes of process
were the same, whether the litigation was in the forums of the
state or in the circuit court of the United States.
Remark should be made that those Process Acts in terms apply
only to the old states, but the federal courts in states since
admitted into the Union are, in virtue of subsequent enactments,
governed by regulations substantially similar. [Footnote 16
Express provision in the third section of the act of the
nineteenth of May, 1828, is that writs of execution, and other
final process issued on judgments rendered in the federal courts,
AND THE PROCEEDINGS THEREUPON, shall be the same in each state as
are now used in the courts of such state.
VII. Public buildings and all other public property of a county
in the State of Iowa, are exempt from execution under the law of
the state, and the same law enacts that the property of the private
citizen can in no case be levied upon to pay the debt of a civil
Return of nulla bona
in this case therefore showed that
the creditor was without remedy, unless the circuit court in which
the judgment was recovered could issue the writ of mandamus to
compel the proper officers of the county to
Page 73 U. S. 193
levy the tax voted for that purpose when the consent of the
county was given to incur the liability.
VIII. Definition of mandamus, as given in the code of the state,
is that it is an order of a court of competent jurisdiction
"an inferior tribunal, corporation, board, or person, to do or
not to do an act, the performance or omission of which the law
specially enjoins as a duty resulting from an office, trust, or
station. [Footnote 18
Established rule in the supreme court of the state is that where
the debt of a municipal corporation has been reduced to judgment
and the judgment creditor has no other means to enforce the
payment, mandamus will be issued to compel the proper officers of
the municipality to levy and collect a tax for that purpose.
Apart from the injunction, therefore, it is an incontrovertible
fact that the appropriate remedy of the plaintiff, if his judgment
had been recovered in the state court, would have been mandamus to
compel the defendants, as the supervisors of the county, to levy
the tax previously voted to pay the judgment.
Same views have also been advanced by this Court in several
cases in which there was no dissenting opinion. Mandamus, said MR.
JUSTICE GRIER, in an analogous case, is a remedy, according to well
established principles and usages of law, to compel any person,
corporation, public functionary, or tribunal, to perform a duty
required by law, where the duty sought to be enforced is clear and
undisputable, and the party seeking relief has no other legal
remedy. [Footnote 20
Petitioner in that case had previously recovered judgment for
interest due on bonds issued by the county as material aid in the
construction of a railroad, and the report of the case shows that
the same legislative act which authorized the subscription made
provision that the commissioners should annually "assess a special
tax sufficient to realize the
Page 73 U. S. 194
amount of interest to be paid for the year." Unanimous decision
of this Court was, that the writ of mandamus was the proper legal
remedy to enforce that duty in case of neglect and refusal, and the
judgment of the circuit court granting the writ was affirmed.
Decision of the court was placed upon the ground not only that the
writ was necessary to the exercise of jurisdiction in the circuit
court, but that the law providing for a special tax was a part of
Necessary conclusion is that the decision in that case is an
authority for everything asked in the plaintiff's application,
unless it be held that the power of the circuit court to grant
relief in this case was displaced and overruled or perpetually
suspended by the injunction issued from the state court.
Exactly the same views have been expressed by this Court in
later cases. Where a state has authorized a municipal corporation
to contract and to exercise the local power of taxation to the
extent necessary to meet the engagement, the power thus given
cannot be withdrawn until the contract is satisfied. [Footnote 21
Regularity of the proceedings in the primary suit are not open
to inquiry, and it is conceded that the judgment was in regular
form; and if so, then the power of the circuit court to issue final
process, agreeably to the principles and usages of law, to enforce
the judgment, is undeniable. [Footnote 22
Authority of the circuit courts to issue process of any kind
which is necessary to the exercise of jurisdiction and agreeable to
the principles and usages of law, is beyond question, and the power
so conferred cannot be controlled either by the process of the
state courts or by any act of a state legislature. Such an attempt
was made in the early history of federal jurisprudence, but it was
wholly unsuccessful. [Footnote
] Suit in that case was ejectment and the verdict
Page 73 U. S. 195
was for the plaintiff. Defeated in the circuit court, the
defendant went into the state court and obtained an injunction
staying all proceedings. Plaintiff applied for a writ of habere
but the judges of the circuit court being
opposed in opinion whether the writ ought to issue, the point was
certified to this Court; and the decision was that the state court
had no jurisdiction to enjoin a judgment of the circuit court, and
the directions were that the writ of possession should issue. Prior
decisions of the court had determined that a circuit court could
not enjoin the proceedings in a state court, and any attempt of the
kind is forbidden by an act of Congress. [Footnote 24
Repeated decisions of this Court have also determined that state
laws, whether general or enacted for the particular case, cannot in
any manner limit or affect the operation of the process or
proceedings in the federal courts. [Footnote 25
The Constitution itself becomes a mockery, say the Court in that
case, if the state legislatures may at will annul the judgments of
the federal courts, and the nation is deprived of the means of
enforcing its own laws by the instrumentality of its own tribunals.
Congress may adopt state laws for such a purpose directly, or
confide the authority to adopt them to the federal courts, but
their whole efficacy when adopted depends upon the enactments of
Congress, and they are neither controlled or controllable by any
state regulation. [Footnote
State courts are exempt from all interference by the federal
tribunals, but they are destitute of all power to restrain either
the process or proceedings in the national courts. [Footnote 28
] Circuit courts and state
courts act separably and independently of each other, and in their
respective spheres of action the process issued by the one is as
far beyond the reach of
Page 73 U. S. 196
the other, as if the line of division between them "was traced
by landmarks and monuments visible to the eye." [Footnote 29
] Appellate relations exist in a
class of cases, between the state courts and this Court, but there
are no such relations between the state courts and the circuit
Viewed in any light, therefore, it is obvious that the
injunction of a state court is inoperative to control, or in any
manner to affect the process or proceedings of a circuit court, not
on account of any paramount jurisdiction in the latter courts, but
because, in their sphere of action, circuit courts are wholly
independent of the state tribunals. Based on that consideration,
the settled rule is, that the remedy of a party, whose property is
wrongfully attached under process issued from a circuit court, if
he wishes to pursue it in a state tribunal, is trespass, and not
replevin, as the sheriff cannot take the property out of the
possession and custody of the marshal. [Footnote 30
] Suppose that to be so, still the
defendants insist that the writ was properly refused, because the
injunction was issued before the plaintiff's application was
presented to the circuit court. Undoubtedly circuit courts and
state courts, in certain controversies between citizens of
different states, are courts of concurrent and coordinate
jurisdiction, and the general rule is, that as between courts of
concurrent jurisdiction, the court that first obtains possession of
the controversy, or of the property in dispute, must be allowed to
dispose of it without interference or interruption from the
coordinate court. Such questions usually arise in respect to
property attached on mesne process, or property seized upon
execution, and the general rule is, that where there are two or
more tribunals competent to issue process to bind the goods of a
party, the goods shall be considered as effectually bound by the
authority of the process under which they were first attached or
seized. [Footnote 31
Corresponding decisions have been made in this Court, as
Page 73 U. S. 197
in the case of Hagan v. Lucas,
] where it was held that the marshal
could not seize property previously attached by the sheriff, and
held by him or his agent, under valid process from a state court.
Rule laid down in the case of Taylor v. Carryl
] is to the same effect
as understood by a majority of the court. [Footnote 34
Argument for the defendants is, that the rule established in
those and kindred cases, controls the present controversy, but the
court is of a different opinion, for various reasons, in addition
to those already mentioned. Unless it be held that the application
of the plaintiff for the writ is a new suit, it is quite clear that
the proposition is wholly untenable. Theory of the plaintiff is,
that the writ of mandamus, in a case like the present, is a writ in
aid of jurisdiction which has previously attached, and that, in
such cases, it is a process ancillary to the judgment, and is the
proper substitute for the ordinary process of execution, to enforce
the payment of the same, as provided in the contract. Grant that
such is the nature and character of the writ, as applied in such a
case, and it is clear that the proposition of the defendants must
utterly fail, as in that view there can be no conflict of
jurisdiction, because it has already appeared that a state court
cannot enjoin the process or proceedings of a circuit court.
Complete jurisdiction of the case, which resulted in the
judgment, is conceded; and if it be true that the writ of mandamus
is a remedy ancillary to the judgment, and is the proper process to
enforce the payment of the same, then there is an end of the
argument, as it cannot be contended that a state court can enjoin
any such process of a federal court. When issued by a federal
court, the writ of mandamus is never a prerogative writ. [Footnote 35
] Outside of this
district no circuit court can issue it at all in the exercise of
Power of the circuit courts in the several states to issue
Page 73 U. S. 198
the writ of mandamus is confined exclusively to those cases in
which it may be necessary to the exercise of their jurisdiction.
Express determination of this Court is, that it can only be issued
by those courts in cases where the jurisdiction already
and not where it is to be acquired by means of the
writ. [Footnote 36
Proposition of the defendants proves too much, for if it be
correct, the circuit courts in the several states cannot issue the
writ in any case. Such a proposition finds no support in the
language of the Judiciary Act, or in the decisions of this Court.
Twice this Court has affirmed the ruling of the circuit court in
granting the writ in analogous cases, and once or more this Court
has reversed the ruling of the circuit court in refusing the writ,
and remanded the cause, with directions that it should be issued.
] Learned courts
in the states have advanced the same views, and it does not appear
that there is any contrariety of decision. [Footnote 38
Tested by all these considerations, our conclusion is that the
propositions of the defendants cannot be sustained, and that the
circuit courts in the several states may issue the writ of mandamus
in a proper case, where it is necessary to the exercise of their
respective jurisdictions, agreeably to the principles and usages of
law. Where such an exigency arises, they may issue it, but when so
employed, it is neither a prerogative writ nor a new suit in the
jurisdictional sense. On the contrary, it is a proceeding ancillary
to the judgment which gives the jurisdiction, and when issued
becomes a substitute for the ordinary process of execution to
enforce the payment of the same, as provided in the contract.
Next suggestion of the defendants is, that if the writ is
Page 73 U. S. 199
issued, and they should obey its commands, they may be exposed
to a suit for damages or to attachment for contempt, and
imprisonment. No such apprehensions are entertained by the court,
as all experience shows that the state courts at all times have
readily acquiesced in the judgments of this Court in all cases
confided to its determination under the Constitution and laws of
Congress. Guided by the experience of the past, our just
expectations of the future are that the same just views will
prevail. Should it be otherwise, however, the defendants will find
the most ample means of protection at hand. Proper course for them
to pursue, in case they are sued for damages, is to plead the
commands of the writ in bar of the suit, and if their defense is
overruled, and judgment is rendered against them, a writ of error
will lie to the judgment, under the twenty-fifth section of the
Remedy in case of imprisonment is a very plain one, under the
seventh section of the act of the second of March, 1833, entitled,
an act further to provide for the collection of the duties on
imports. Prisoners in jail or confinement for any act done or
omitted to be done in pursuance of a law of the United States, or
any order, process, or decree of any judge or court thereof, may
apply to either of the justices of the supreme, or a judge of any
district court of the United States for the writ of habeas corpus,
and they are severally authorized to grant it, in addition to the
authority otherwise conferred by law. [Footnote 40
Under any such circumstances, the wisdom of Congress has
provided the means of protection to all persons sued or imprisoned
for any act done or omitted to be done in pursuance of a law of the
United States, or any order, process, or decree of any federal
judge or court of competent jurisdiction.
Views here expressed also control the decision in the case of
Thomson v. Henry County.
Judgment reversed and the cause remanded with
Page 73 U. S. 200
to sustain the demurrer and for further proceedings in
conformity to the opinion of the Court.
the history set out in Gelpcke v.
City of Dubuque,
1 Wall. 175.
68 U. S. 1
1 Stat. at Large 93; ib.,
274; 5 id.
1 Stat. at Large 81.
Code, §§ 114, 120.
Rhode Island v.
12 Pet. 718.
23 Wheat. 1; Suydam
20 How. 437; 2 Tidd's Practice 1134;
Co.Lit., 288, b.
1 Stat. at Large 81.
5 U. S. 1
7 Cranch 504; McClung v.
6 Wheat. 601; Conklin's Treatise 161.
1 Stat. at Large 93.
1 Stat. at Large 276.
Angell & Ames on Corporations § 629.
4 Stat. at Large 274; 5 id.
Code, sec. 1895; Revision, sec. 3274.
Code, sec. 2179; Revision, 3761.
Coy v. City Council of Lyons,
17 Ia. 1; Dox v.
237; Clark v. City of
Commissioners of Knox Co. v.
24 How. 303.
Von Hoffman v.
4 Wall. 554; Supervisors v. United
4 Wall. 444.
10 Wheat. 22; Bank of
the United States v. Halstead,
10 Wheat. 56.
7 Cranch 281.
4 Cranch 179; 1 Stat. at Large 335.
United States v.
5 Cranch 136.
2 Wheat. 9; Beers
9 Pet. 359.
United States v.
5 Cranch 136; Boyle
6 Pet. 658.
1 How. 306; Peck
7 How. 625.
21 How. 516.
24 How. 455; Buck
3 Wall. 341.
Payne v. Drewe,
4 East 523.
35 U. S. 10
61 U. S. 20
Mallett v. Dexter,
1 Curtis C.C. 174.
24 How. 97.
Kendall v. United
12 Pet. 615, 37 U. S. 627
6 Wheat. 601; McIntire
7 Cranch 506.
Knox County v.
24 How. 385; Von
Hoffman v. Quincy,
4 Wall. 554; Supervisors v. United
4 Wall. 446.
Thomas v. Allegheny County,
32 Pa.St. 225; Hamilton
509; Armstrong v.
279; Graham v. Maddox,
American Law Register 620; Carroll v. Board of Police,
Miss. 38; Moses on Mandamus 126.
24 How. 97.
4 Stat. at Large 634.
MR. JUSTICE MILLER, dissenting.
In the case of Gelpcke v. Dubuque,
reported in 1st
Wallace, [Footnote 2/1
] I felt
called upon to point out the evil consequences likely to flow from
the doctrine there asserted for the first time, that the
construction given by the state courts to their own constitutions
and statutes, could be disregarded and overruled by the federal
courts sitting in the same states and deciding the same
These consequences are now apparent in the judgments just
rendered, whereby the state officers are commanded to disobey an
injunction of a state court, rendered in regular judicial
proceedings, to which they were proper parties, in a matter of
which that court had undoubted jurisdiction, concerning the levy of
a tax under state laws.
It may not be inappropriate to review the steps by which this
Court has gradually arrived at the conclusion that it can do this,
for the purpose of enforcing the payment of bonds, issued without
authority of law, out of the property of those who never consented
to their issue or agreed to pay them.
In almost all the cases where municipal corporations have any
authority at all to issue such bonds, the statutes which give the
authority require that there shall first be a vote of the majority
of the people of the municipality, approving the purpose for which
they are issued, and authorizing their issue. Of course the law
fixes the manner of taking this vote, and I believe that until this
Court decided to the contrary, no court had ever held that such
bonds were valid without a substantial compliance with the statutes
on that subject.
But in the case of Commissioners of Knox County v.
21 Howard, [Footnote
] it was held that the commissioners, whose duty it was to
issue these bonds in the event that a majority voted them, were to
be the exclusive and final
Page 73 U. S. 201
judges of their own authority. It was said that because it
became their duty to determine whether the bonds had been legally
voted or not, before they issued them, therefore the fact that they
had issued them was conclusive of the vote and of their own
authority, and precluded all inquiry into that question.
These commissioners were merely the agents of the people of the
municipality. Their authority depended on no private instructions,
but on the public statutes of the state, which every person who
dealt with them could examine. The proceedings for a vote were all
of record, as well as the return of the officers taking the
Yet, in the face of all this, when these agents transcend their
authority, and attempt to bind upon the people of the county a load
of debt which may absorb all their property, and heavily burden
them for years, we are told that the agents were the final and
exclusive judges of their own authority. When the highest court in
the land renders a judgment or a decree, any other court before
which the matter may come has a right to inquire into its authority
to pass such judgment; but these mere agents of the people, whose
powers are limited by law, may, by merely asserting their
authority, pass a decree which no court can examine, because none
can dispute their jurisdiction.
After this decision, no matter how illegal, fraudulent, or
unauthorized were corporation bonds, no defense could be made to
them in the federal courts, and, of course, they were all sued upon
in those courts.
But when judgments were obtained, it was found that the ordinary
executions did not always produce the money, and some new device
was to be resorted to for this purpose. Accordingly, we find Mr.
Aspinwall applying for a writ of mandamus to compel the board of
commissioners to levy the tax necessary to pay his judgment. This
Court held, in 24th Howard [Footnote
] that he was entitled to the writ. This was decided only
seven years ago, and is the first instance in which a
Page 73 U. S. 202
federal court ever issued a writ of mandamus to a state officer
in the history of this government.
I shall examine into its authority to do so hereafter, but
merely note it in passing as among the new doctrines which this
Court has found it necessary to establish to enforce payment of
The next step was the decision already mentioned of Gelpcke
in which the Court held that the later decisions
of a state court on the construction of its own constitution,
although unanimous, would be disregarded in this Court in county
bond cases in favor of earlier decisions made by a divided
In the present case, we are required to take another step in the
same direction, and one still more serious. We are asked by
mandamus to compel these municipal officers to disobey an
injunction of the state court duly served on them and made
perpetual by a decree to which they were parties and which, if they
disobey, they will be imprisoned for such disobedience. Before
doing this, we are requested to reconsider the question of the
right of the federal courts to control the officers of the state in
the execution of state laws, by writ of mandamus, by counsel who is
commended to our consideration not more by his age and experience
in the law, than by his acknowledged ability as a constitutional
lawyer. In doing this, he points out that a provision of the
statute bearing directly on the question did not receive the
attention either of counsel or of the Court in the decision of
Aspinwall v. Knox County
nor in any subsequent case.
This question must be determined by a consideration of sections
thirteen and fourteen of the Judiciary Act of 1789.
The Court, in the case above mentioned, bases the authority to
issue this writ on the following language of section fourteen:
"All the before-mentioned courts of the United States shall have
power to issue writs of scire facias,
habeas corpus, and
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."
The writ of mandamus is not here mentioned specifically,
Page 73 U. S. 203
and can only be authorized when it is necessary to the exercise
of jurisdiction already existing, and when agreeable to the
principles and usages of law, and if it is specially provided for
by statute, it is not included in the "other writs" referred to in
It is asserted in this class of cases to be necessary to the
exercise of the jurisdiction of the court.
It is a little remarkable that the first case which required its
use by a circuit court against state officers should have arisen
seventy years after the authority was granted under which it is now
called into exercise. While this consideration may not be
conclusive that the writ is unnecessary to the exercise of that
court's jurisdiction, it affords a strong presumption against the
existence of such necessity, and also that its issue in such cases
is not agreeable to the principles and usages of law.
But any doubt we may have in the construction of the fourteenth
section standing alone is removed by the provisions of the section
which immediately precedes it. It is there said that
"The Supreme Court shall also have appellate jurisdiction from
the circuit courts and courts of the several states in cases
hereinafter specially provided for, and shall have power to issue
writs of prohibition to district courts when proceeding as courts
of admiralty and maritime jurisdiction, and 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.
I shall not attempt in the face of this statute to argue that
the power granted by it to the Supreme Court to issue the writ of
mandamus is limited to courts appointed and to persons holding
office under the United States when, as in the present case, it is
to be directed to a person by virtue of his office. The concluding
words of the section are useless but for the purpose of so limiting
it, and if these words are useless, they are the first which in
eighty years have been found to be so in this admirable
If, then, Congress, in the very sentence in which it gives
appellate jurisdiction over state courts, expressly denies to
Page 73 U. S. 204
this Court the right to issue the writ of mandamus to state
courts and state officers, while it grants it in cases of federal
courts and federal officers, did it intend in the next section to
authorize the inferior courts, which have no appellate jurisdiction
whatever over any state tribunal, to issue mandamus to state courts
or to state officers? Or did it intend that while the Supreme Court
itself was forbidden, both in its appellate and original
jurisdiction, to issue a mandamus to state officers, that court
might effect the same purpose by ordering the circuit courts to do
it? This would be an inconsistency of which there is no other like
instance in the statute, and which is at variance with the care and
skill which are apparent in all its parts. This view could be well
supported, if the occasion justified it, by an examination of all
the legislation of that period showing the jealousy with which the
rights of the states and of the state courts were guarded.
If, however, the federal courts can, under proper circumstances,
take control of these officers for the purpose of compelling them
to levy taxes, it is incontrovertible that the power of the state
courts over such officers, and over the subject of their right to
tax, is as full and complete as that of the federal courts can
possibly be. It is indeed a concession to say that the jurisdiction
of the federal courts is concurrent with that of the state
In the cases now under consideration it is conceded that the
state courts had issued their injunction after due course of legal
proceedings, in which the taxpayers were complainants and the
supervisors were defendants, before any application was made to the
federal court for a mandamus.
In order to prevent such conflicts as threaten to grow out of
the matter before us, in cases of concurrent jurisdiction it has
been established as a rule that the court which first obtains
jurisdiction of the case shall have the exclusive right to decide
the matter in issue, and that any other court which may have
subsequently assumed to act in the matter must, when the fact of
this priority of jurisdiction is brought to its attention, proceed
Page 73 U. S. 205
This principle is necessary and is recognized in all courts, and
when properly applied in the spirit of comity which should actuate
courts, will be found sufficient to prevent unseemly collision
between them. It has been recognized by this Court so repeatedly as
the rule which governs in matters of concurrent jurisdiction
between the state and federal courts that a citation of authorities
is hardly necessary, but I mention Shelby v. Bacon,
Freeman v. Howe,
] and Buck v. Colbath.
This principle being conceded, and the return of the supervisors
to the alternative writ of mandamus, showing that they were
enjoined from levying the tax to pay these bonds before the
application was made to the federal court for the writ of mandamus
to compel them to levy it, it would seem to follow that the decree
of the state court must be respected and the return be held
But here we are met with another of those judicial subtleties of
which the corporation bond litigation seems to be the prolific
We are told that the writ of mandamus is not a new or original
proceeding, but is merely the ordinary exercise of the court's
jurisdiction in enforcing a judgment at law already rendered for
the payment of money; that a judgment had been rendered in favor of
the relator against the County of Johnson before the injunction
issued from the state court, and therefore the federal court had
first acquired jurisdiction of the case.
Let us inquire for a moment of what case the federal court had
acquired jurisdiction. Of an action of assumpsit, in which Marcus
Riggs was plaintiff and Johnson County was defendant and in which
the plaintiff recovered a judgment for his debt. Of what case was
it the state court had jurisdiction? Of a bill in chancery brought
by the resident taxpayers of Johnson County against the board of
supervisors of that county to enjoin them from levying a tax to pay
certain bonds. Neither party to the suit in the federal
Page 73 U. S. 206
court was party to the suit in the state court, or was a
necessary or a proper party to it. The subject matter of the suit
in the federal court was the ordinary collection of a debt from
Johnson County. The subject matter of the suit in the state court
was the attempt of the board of supervisors to levy an illegal tax.
The County of Johnson is a corporation capable to sue and be sued.
The supervisors are officers of whom certain duties are required.
They are not identical, and cannot be sued for the same
It surpasses my ingenuity to see how the suit in the federal
court can be said to have first obtained jurisdiction of the case
in the state court. The parties, plaintiff and defendant, are all
different, and the subject matter of the suit is different, and the
relief sought is different.
Much has been said in the course of argument by counsel of the
incapacity of a state court to enjoin the judgment of a federal
court or to restrain or interfere with its process.
Nothing of the kind is attempted, nor any such power claimed by
the state court in the proceedings relied on in the return. The
judgment of the federal court is not mentioned or alluded to in the
proceedings in the state court. Neither plaintiff nor defendant in
the federal court are made parties to the suit in the state court.
Nor is any decree rendered touching its process or designed to
interfere with it. All the ordinary writs, and all the ordinary
powers of a court in a judgment at law, may be exhausted by the
federal court without the possibility of any collision between that
court and the decree of the state court. It is only when the
plaintiff in the federal court, having exhausted his remedy in that
action, brings a new suit, with new defendants, praying for a new
and different relief, that the courts come into collision.
It is said in answer to all this that the writ of mandamus as
applied for in this case is no new action, but is the ordinary
process by which the court enforces its judgment, and that this is
especially so in the Iowa circuit, because such is the case in the
Iowa state courts.
The Revision of 1860 of the Iowa statutes must determine
Page 73 U. S. 207
the soundness of this proposition so far as the courts of that
state are concerned. Chapter 153 is headed in capitals, "Action of
mandamus." § 3761 describes the cases to which the action is
applicable in the language used by common law writers. § 3762 says
the plaintiff shall state his claim and facts sufficient to
constitute a cause for such claim. § 3766. The pleadings and other
proceedings in any action in which a mandamus is claimed shall be
the same in all respects, as nearly as may be, as in an ordinary
action for the recovery of damages. § 4181 says that
"when the action of mandamus is by a private person, there may
be joined therewith the injunction of chapter 156, . . . and the
action shall be by ordinary proceedings."
I believe I have quoted substantially all that there is on this
subject in the statutes of Iowa, and these govern the practice of
her courts. I think I am also entitled to speak of the actual
practice in those courts. It is clear that it is not a mere
ancillary writ, but is in all cases a separate action, with
pleadings as in other actions and judgment thereon. How then can it
be said that this is one of the ordinary powers of the court,
incident to and consequent upon, the judgment of the court in an
action of debt or assumpsit?
But the statutes of Iowa in this respect have not changed the
common law. Bacon, in his Abridgment says that
"since this statute [9 Ann., chap. 20], a mandamus is in the
nature of an action, special replications and pleadings therein
being admitted, and costs awarded to either side that
In the case of Kendall v. Stokes,
] this Court held that
"the proceeding on mandamus is a case within the meaning of the
act of Congress. . . . It is an action, or suit brought in a court
of justice, asserting a right, and is prosecuted according to the
forms of judicial proceedings."
And in another case between the same parties, reported
44 U. S. 3
100, the Court says it is now regarded as an action by the party on
whose relation it is granted, and holds that the former action
Page 73 U. S. 208
of mandamus is a bar to an action of assumpsit for the same
cause. So in Kentucky v. Denison,
] it is said, "a mandamus, in modern
practice, is nothing more than an action at law between the
Passing from these conclusive evidences of what this very Court
considers to be the nature of the writ of mandamus and what the
statutes of Iowa (appealed to in the opinion of the majority as the
basis of their judgment) intend it to be, if we look to the
essential nature of the present proceeding, we shall still be more
convinced that it is a new suit in every sense of the word. We have
already shown that the parties are different. The purpose of it is
to enforce the levy of a tax -- an object which could never be
obtained and which is not within the scope of an action of
assumpsit. The parties seeking the writ in the information which
they filed in the present case did not rest their claim on the
statement that they had a judgment against a corporation which they
could not enforce by execution, but they go back of that and recite
the issue of the bonds, and the vote of the tax to pay them by the
county, and pray for this writ to enforce specifically that
contract. And in the opinion just delivered it is declared to be
the object of the writ to enforce the judgment of the court by
levying the tax, "as provided in the contract."
So that it is clear that both the plaintiff in his information
and the Court in its opinion consider the writ in this case as in
the nature of a bill in chancery to enforce specific performance of
And that is precisely what it is. Was it ever heard that such a
bill is merely ancillary to a judgment at law, and is only used for
the purpose of enforcing a judgment for damages for failing to pay
a note or bond? The obligation of the supervisors to levy this tax,
if it exist at all, is as perfect in regard to bonds on which there
is no judgment as it is where judgment has been rendered, and this
duty can as well be enforced by mandamus in the one case as in the
other. It is this duty which is sought to be enforced in the
Page 73 U. S. 209
present case. If a mandamus is liable to issue without the
judgment, how can it be said to be an incident to the judgment, and
a part of that suit?
But if I am mistaken in all that I have thus far been saying,
there is another proposition, supported by a uniform current of
authorities, which would preclude the issuing the writ of mandamus
in this case. That is, that the writ is never issued to a party
whom it would expose to imprisonment or other serious damage for
I have not time to quote from the authorities on this subject,
but they are numerous and without contradiction. [Footnote 2/10
The cases before us have been argued with great zeal and ability
on both sides, and counsel for the relator were challenged to
produce a single reported decision in which a mandamus had been
issued to parties who would be subjected to danger, to expense, or
to suffering, by obeying its order. No such case has been found,
and I feel authorized to say none can be found. With all the
respect which I have for this Court and for my brethren who differ
with me, I take the liberty of saying it has no right to set aside
all precedent and disregard established rules in the belief,
however confidently entertained, that it is done in the cause of
Page 68 U. S.
Page 62 U. S. 539
Page 65 U. S. 376
51 U. S. 10
61 U. S. 20
65 U. S. 24
70 U. S. 3
37 U. S. 12
65 U. S. 24
See The Queen v. Sir Gilbert Heathcote,
10 Modern 48;
The Queen v. Justices of Middlesex,
1 Perry & Davidson
402; King v. Dyer,
2 Adolphus & Ellis 606; People
5 Gilman 243; Ex Parte Fleming,
N.Y. 581; The Ohio & Indiana Railroad Company v.
Commissioners of Wyandot,
7 Ohio St. 278.
THE CHIEF JUSTICE.
I concur mainly in the views and wholly in the conclusions of my