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ROSENBAUM v. BAUER. ROSENBAUM V. SAN FRANCISCO.

decided: March 7, 1887.

ROSENBAUM
v.
BAUER.

ROSENBAUM
v.
SAN FRANCISCO.



ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

Author: Blatchford

[ 120 U.S. Page 451]

 MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 13th of October, 1885, Albert S. Rosenbaum brought an action in the Superior Court of the city and county of San Francisco, in the State of California, against John A. Bauer, treasurer of the city and county of San Francisco. The complaint set forth the issuing of certain bonds, called Montgomery Avenue bonds, by the Board of Public Works of the city and county of San Francisco, under an act of the legislature of California, approved April 1, 1872, Stats. of 1871-2, c. 626, entitled "An act to open and establish a public street in the city and county of San Francisco, to be called 'Montgomery Avenue,' and to take private lands therefor." The act provided for the creation by taxation of a fund for the payment of interest on the bonds, and of a sinking fund for their redemption; and enacted that whenever such treasurer should have in his custody $10,000 or more belonging to the sinking fund, he should advertise for proposals for the surrender and redemption of the bonds. The complaint alleged that the plaintiff owned twenty-one of the bonds of $1000 each; that the treasurer had in his hands over $12,000 belonging to the sinking fund; that the plaintiff had exhibited his bonds to the treasurer and demanded that he advertise for proposals for the surrender of bonds issued under the act; that he refused so to do; and that no part of such bonds had been paid. The complaint prayed for a judgment that the defendant, "as treasurer of the city and county of San Francisco, be commanded to advertise for the redemption of Montgomery Avenue

[ 120 U.S. Page 452]

     bonds, as in section eleven of the act hereinabove referred to provided."

Three days afterwards, the plaintiff filed a petition for the removal of the suit into the Circuit Court of the United States for the District of California, on the ground that the plaintiff was a citizen of New York and the defendant a citizen of California. The state court made an order of removal. The record being filed in the Federal court, the defendant demurred to the complaint, specifying as a ground of demurrer that the Federal court had no jurisdiction of the subject of the action. The case being heard on the demurrer, the court made an order, on the 18th of January, 1886, that the cause be remanded to the state court, "this court having no jurisdiction of this cause in this form." The plaintiff has brought a writ of error to review that order.

The same act provided that an annual tax should be levied on the property therein mentioned to raise money to pay the coupons annexed to the bonds, and another annual tax to create a sinking fund for the redemption of the bonds, the taxes to be levied in the manner in which other taxes are levied, that is, by the Board of Supervisors. The same Rosenbaum, being the owner of twenty-one of the bonds, and of eight matured coupons, of $30 each, attached to each bond, each coupon being for six months' interest, the first of them having matured January 1, 1882, brought an action, on the 12th of December, 1885, in the said Superior Court of the city and county of San Francisco, against the Board of Supervisors of the city and county of San Francisco. The complaint set forth that there were no funds in the hands of the treasurer applicable to the payment of any of the coupons; and that the plaintiff had demanded of the Board that it levy a tax sufficient to pay the coupons, but it had refused so to do. The complaint prayed for a judgment "against said Board of Supervisors, commanding them to levy the tax hereinabove mentioned, and to continue to levy said tax from year to year until all the interest upon said bonds, and said bonds themselves, are fully paid."

On the 21st of December, 1885, the plaintiff filed a petition

[ 120 U.S. Page 453]

     for the removal of this latter suit into the Circuit Court of the United States for the District of California, on the ground of diversity of citizenship in the parties. The state court made an order of removal. The defendant made a motion in the Federal court to remand the case to the state court on the ground of want of jurisdiction by the Federal court "of the subject-matter contained in the complaint." On the 24th of May, 1886, the court made an order granting the motion, and the plaintiff has brought a writ of error to review that order.

The Circuit Court, in remanding the causes, 28 Fed. Rep. 223, proceeded on these grounds: (1) That it had always been held by this court that the Circuit Courts had no jurisdiction to award a mandamus except as ancillary to some other proceeding establishing a demand, and reducing it to judgment, the mandamus being in the nature of process for executing the judgment. (2) That a proceeding for a mandamus was not a suit of a civil nature, within the meaning of any provision of the act of March 3, 1875, c. 137, 18 Stat. 470, and was not removable under it.

Prior to the act of 1875, it was well settled that the Circuit Courts had no jurisdiction to issue a writ of mandamus in a case like the present.

In McIntire v. Wood, in 1813, 7 Cranch, 504, it was held that a Circuit Court had no power to issue a mandamus to the register of a land office of the United States, commanding him to grant a final certificate of purchase to the plaintiff for lands to which he supposed himself entitled under the laws of the United States. In that case, the plaintiff's alleged right to a certificate of purchase was claimed under the laws of the United States, but this court, speaking by Mr. Justice Johnson, said, that the power of the Circuit Courts to issue the writ was confined by § 14 of the Judiciary Act of 1789, 1 Stat. 81, to those cases in which it might be necessary to the exercise of their jurisdiction. This provision of § 14 appears now in § 716 of the Revised Statutes in these words: "SEC. 716. The Supreme Court and the Circuit and District Courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be

[ 120 U.S. Page 454]

     necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."

In McClung v. Silliman, in 1821, 6 Wheat. 598, a mandamus was applied for in a Circuit Court of the United States to compel the register of a land office of the United States to issue papers to show the preemptive interest of the plaintiff in certain land. The writ was refused. In this court, the case was sought to be distinguished from McIntire v. Wood, on the ground that the parties were citizens of different states. But the court, speaking again by Mr. Justice Johnson, said that no just inference was to be drawn from the decision in McIntire v. Wood, in favor of a case in which the Circuit Court was vested with jurisdiction by citizenship under § 11 of the act of 1789. And then, in answer to the argument, that, as the parties were citizens of different states, and competent to sue under § 11, the Circuit Court was, by § 14, vested with power to issue the writ as one "necessary for the exercise of its jurisdiction," the court 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. It must exercise this power and compel the emanation of the legal document, or the execution of the ...


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