IN RE MASSACHUSETTS

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No. 15.

Judges

Melville Weston Fuller

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In re COMMONWEALTH OF MASSACHUSETTS, PETITIONER.

Mr. Herbert Parker, Attorney General of the State of Massachusetts, and Mr. Frederick H. Nash for petitioner:

The Supreme Court of the District of Columbia has no jurisdiction of the bill in equity filed in that court and the lack of jurisdiction appears on the face of the bill. The only court where the dispute between Cotton and the Commonwealth can be adjudicated is the Supreme Court of Massachusetts where the Commonwealth has consented to be impleaded. 11th Amendment, Const. U.S.; Rev. Laws Mass. c. 201; Hagood v. Southern, 117 U.S. 52, 71; Cunningham v. Railroad Company, 109 U.S. 446; Rhode Island v. Massachusetts, 12 Pet. 657, 718; Grignon's Lessee v. Astor, 2 How. 338; Florida v. Georgia, 17 How. 478, 507.

Massachusetts is an indispensable party to the suit and in its absence jurisdiction is lacking. Mallow v. Hinde, 12 Wheat. 193; Findley v. Hinde, 1 Pet. 241; Shields v. Barrow, 17 How. 130; Barney v. Baltimore, 6 Wall. 280; Ribon v. Railway Co., 16 Wall. 446; Gregory v. Stetson, 133 U.S. 579; California v. So. Pac. R.R. Co., 157 U.S. 229, 249.

As to necessity of having both parties before the court and subject to its jurisdiction see Price v. Forrest, 173 U.S. 410; Sanborn v. Maxwell, 18 App.D.C. 245, 253; Minnesota v. Nor. Securities Co., 184 U.S. 199; Williams v. Bankhead, 19 Wall. 563; Dodd v. Una, 40 N.J. Eq. 672, 709; Calvert's Parties in Eq., 10; Daniell Ch. Pr., 3d Am. ed., 285; In re Ayers, 123 U.S. 443, 505.

As to the Eleventh Amendment this case comes within Louisville v. Jumel, 107 U.S. 711; Cunningham v. Macon Brunswick R.R. Co., 109 U.S. 446; Hagood v. Southern, 117 U.S. 52; In re Ayers, 123 U.S. 443; Christian v. Atlantic N.C.R.R. Co., 133 U.S. 233; Belknap v. Schild, 161 U.S. 10; Fitz v. McGhee, 172 U.S. 516; Smith v. Reeves, 178 U.S. 436; Minnesota v. Hitchcock, 185 U.S. 373. And not within United States v. Peters, 5 Cranch, 115; Osborn v. Bank of United States, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Board of Liquidation v. McComb, 92 U.S. 531; United States v. Lee, 106 U.S. 196; Virginia Coupon Cases, 114 U.S. 270; Pennoyer v. McConnaughy, 140 U.S. 1; In re Tyler, 149 U.S. 164; Reagan v. Farmers' Loan Trust Co., 154 U.S. 389; Scott v. Donald, 165 U.S. 108; Tindal v. Wesley, 167 U.S. 204; Smyth v. Ames, 169 U.S. 517; Illinois Central R.R. Co. v. Adams, 180 U.S. 28; Missouri R.R. Co. v. Missouri Railroad Commissioners, 183 U.S. 53.

The Supreme Court of the District of Columbia having no jurisdiction of the subject matter of the bill, by reason of the exemption from suit of an indispensable party, the Commonwealth's remedy for the usurpation of jurisdiction is a writ of prohibition to the judges of that court.

If this suit is removed the Commonwealth can apply for mandamus to compel the Secretary to issue another warrant. Redfield v. Windham, 137 U.S. 636; Roberts v. United States, 176 U.S. 221.

The Commonwealth should not appeal, and none of its officers can appear, in any court outside of its own jurisdiction. United States v. Lee, 106 U.S. 196, 205; Hagood v. Southern, 117 U.S. 52, 71; Georgia v. Jesup, 106 U.S. 458; South Carolina v. Wesley, 155 U.S. 542.

This court has power to issue the writ of prohibition to the Supreme Court of the District of Columbia, that being the appropriate remedy. In re Vidal, 179 U.S. 126; Ex parte Joins, 191 U.S. 93; Anderson v. Dunn, 6 Wheat. 204, 227; Ex parte Robinson, 19 Wall. 505; Rev. Stat. § 716; Re Chetwood, 165 U.S. 443; Re Tampa Ry. Co., 168 U.S. 583; Bronson v. La Crosse R.R. Co., 1 Wall. 405. In every case where the remedy has been denied there has been a meritorious reason without dealing with the court's power to issue it. See Asphalt Co. v. Morris, 132 F. 945; act of February 9, 1893, 27 Stat. 434; United States v. Schenz, 102 U.S. 378.

If this court declines to issue a writ of prohibition, then the petitioner's only remedy is a writ of mandamus to command the judges of the Supreme Court of the District of Columbia to dismiss the suit. Certiorari is desired, if necessary as an auxiliary writ. Re Hollon Parker, 131 U.S. 221; Re Chateaugay Iron Co., 128 U.S. 544; Ex parte Parker, 120 U.S. 737; Ex parte Morgan, 114 U.S. 174; Ex parte Burtis, 103 U.S. 238; Ex parte Railway Co., 101 U.S. 711; Ex parte Flippin, 94 U.S. 348; In re Hohorst, 150 U.S. 653.

Mandamus is a remedy when the case is outside of the exercise of the inferior court's discretion and outside of the jurisdiction of the court. Virginia v. Rives, 100 U.S. 313; Ex parte Bradley, 7 Wall. 364, 375; Ex parte Newman, 14 Wall. 152, 165; Ex parte Robinson, 19 Wall. 505; In re W. G.R.R. Co., 140 U.S. 91; Gaines v. Rugg, 148 U.S. 228; In re Grossmayer, 177 U.S. 48; Virginia v. Paul, 148 U.S. 107.

Mr. Frederic D. McKenney and Mr. John D. Flannery, with whom Mr. William Hitz and Mr. William Frye White were on the brief, for respondents:

This court has no power to issue the writ of prohibition. High on Extra. Leg. Rem., 3d ed., § 767 b; Ex parte Gordon, 1 Black, 503; Ex parte Christy, 3 How. 292. This is not a controversy between a State and citizen of another State. Hepburn v. Ellzey, 2 Cr. 445; Met. R.R. Co. v. Dist. of Columbia, 132 U.S. 1, 9; Hooe v. Jamieson, 166 U.S. 395.

In a proceeding brought by a State on petition for writs of prohibition, mandamus or certiorari, to restrain the justices of the Supreme Court of the District of Columbia from proceeding further in an action brought by a citizen of the District of Columbia against the Secretary of the Treasury to enjoin him from issuing to the Governor of the petitioning State a duplicate warrant, held, that this court has no original jurisdiction and as the controversy was not one between a State and citizens of another State, and under the act of February 9, 1893, 27 Stat. 434, establishing the Court of Appeals of the District of Columbia, this court has no appellate jurisdiction as it cannot review judgments and decrees of the Supreme Court of the District directly by appeal or writ of error. In cases over which this court has no original or appellate jurisdiction it cannot grant prohibition, mandamus or certiorari as ancillary thereto.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

This court has no original jurisdiction over this controversy, in any view, because it is not a controversy between a State and a citizen of another State. Hepburn v. Ellzey, 2 Cranch, 445; Hooe v. Jamieson, 166 U.S. 395. And it has not appellate jurisdiction, because since the passage of the act of February 9, 1893, 27 Stat. 434, c. 74, establishing the court of Appeals for the District of Columbia, this court, generally speaking, and not including cases arising under the bankruptcy law, Audubon v. Shufeldt, 181 U.S. 575, cannot review the judgments and decrees of the Supreme Court of the District, directly by appeal or writ of error.

By section 716 of the Revised Statutes, this court and the Circuit and District Courts "have power to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."

By section 688, prohibition may issue "in the District Courts, when proceeding as courts of admiralty and maritime jurisdiction," but there is no similar provision in respect of other courts. And it has been repeatedly held, as to the Circuit Courts, that they have no power under section 716 to issue writs of prohibition and mandamus, except when necessary in the exercise of their existing jurisdiction. Bath County v. Almy, 13 Wall. 244, 248; McClung v. Silliman, 6 Wheat. 598, 601.

This is equally true of this court, that is to say, that in cases over which we possess neither original nor appellate jurisdiction we cannot grant prohibition or mandamus or certiorari as ancillary thereto.

Rule discharged; petition denied.

In re COMMONWEALTH OF MASSACHUSETTS, PETITIONER.

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