Burnham v. Fields

• Decision Date: 11 November 1907
• Docket Number: 3,210.
• Parties: BURNHAM v. FIELDS, County Clerk.
• Court: U.S. District Court — District of Oregon

157 F. 246

BURNHAM v. FIELDS, County Clerk.

No. 3,210.

United States Circuit Court, D. Oregon.

November 11, 1907

Coovert and Stapleton, for plaintiff.

G. C Moser and H. B. Adams, for defendant.

WOLVERTON District Judge.

This is a proceeding by mandamus to require the defendant, who is the duly elected and qualified clerk of Multnomah county, Or., to keep open his office for the receipt, filing, and recording of deeds, mortgages, and instruments of similar character during legal holidays appointed by the Governor of the state other than those designated as such by law, and to file and record a deed which was acknowledged before a notary public upon such a day.

But two questions were presented at the argument, namely, whether the clerk should keep open his office upon holidays so appointed and whether he is required to file and record a deed acknowledged as above specified. However, I have been led to a consideration of the question whether the Circuit Court of the United States possesses the requisite jurisdiction to entertain a proceeding by a mandamus instituted purely as an original remedy. The federal adjudications are all of the same trend, to the effect that the court is without such jurisdiction. Whatever jurisdiction it has to entertain the proceeding by mandamus at all is referable to section 716 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 580), being the fourteenth section of the judiciary act of Congress, and to the act of March 3, 1875, c. 137, 18 Stat. 470 (U.S. Comp. St. 1901, p. 508), relating to suits between citizens of different states, and their removal from the state to the federal courts. The section alluded to declares that the Circuit Courts shall have 'power to issue writs of scire facias, habeas corpus, and all other writs not specifically provided for by statute, which may be necessary to the exercise of their respective jurisdictions and agreeable to the principles and usages of law.'

Under this statute, there remains no question as to the power of such courts to issue writs of mandamus, but by judicial construction and interpretation the power is restricted and limited to such writs as are auxiliary or ancillary in character, that shall or may be necessary to the potent exercise of jurisdiction given and acquired by other and original process. In M'Intire v. Wood, 7 Cranch, 504, 505, 3 L.Ed. 420, wherein it was sought to compel a register of the Land Office to grant a final certificate of purchase, the Supreme Court of the United States says:

'Independent of the particular objections which this case presents from its involving a question of freehold, we are of opinion that 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.'

And after commenting upon the eleventh section of the judiciary act the court continues:

'But although the judicial power of the United States extends to cases arising under the laws of the United States, the Legislature have not thought proper to delegate the exercise of that power to its Circuit Courts, except in certain specified cases.' Accordingly the writ was denied. So it was said in M'Clung v. Silliman, 6 Wheaton, 598, 601, 5 L.Ed. 340:

'The fourteenth section of the act under consideration could only have been intended to vest the power now contended for in cases where the jurisdiction already exists, and not where it is to be courted or acquired, by means of the writ proposed to be sued out.'

Again in a later case, involving the power of the Circuit Court to compel the proper officers of a county to levy a tax with which to discharge certain county bonds (Bath County v. Amy, 13 Wall. 244, 249, 20 L.Ed. 539), the Supreme Court,...