Cluny v. Silliman

• Decision Date: 01 February 1817
• Citation: 4 L.Ed. 263,15 U.S. 369,2 Wheat. 369
• Parties: M'CLUNY v. SILLIMAN
• Court: U.S. Supreme Court

15 U.S. 369

2 Wheat. 369

4 L.Ed. 263

M'CLUNY v. SILLIMAN.

February Term, 1817

March 13th.

Mr. Harper moved for a mandamus in this cause, to the defendant, as register of the land-office of the United States, at Zanesville, in the state of Ohio, commanding him to enter the application of the plaintiff, for certain tracts of land according to the provisions of the 9th section of the act of Congress, of the 10th May, 1800, entitled, 'An act providing for the sale of the lands of the United States, in the territory of the United States, northwest of the Ohio, and above the mouth of Kentucky river.' A rule to show cause had been obtained in the supreme court of the state of Ohio, (being the highest court of law or equity of that state;) whereupon the defendant appeared, and excepted to the jurisdiction of the court: but this plea was afterwards waived, and a case agreed between the parties, on which the court ordered the rule to be discharged. Mr. Harper now moved for a mandamus to issue from this court, upon the ground that the case was within the appellate jurisdiction of the court under the equity of the judiciary act of 1789; that, although the court had determined that it had no original jurisdiction to issue writs of mandamus to persons holding office under the authority of the United States, yet it might have an appellate jurisdiction to issue a mandamus to such persons, where it had been refused by the highest court of law or equity of a state, in a case drawing in question the validity of a statute of, or an authority exercised under, the United States.

The motion was denied by the court.

Motion denied.^a

^a In the case of Marbury v. Madison, 1 Cranch, 137., the court determined, that having, by the constitution, only an appellate jurisdiction, (except in cases of ambassadors, &c.) and it being an essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause: That, although a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, was, in effect, the same as to sustain an original action for that paper, and, therefore, seemed not to belong to appellate, but to original jurisdiction; and that, consequently, the authority given to this court by the 13th section of the judiciary act of 1789, to issue writs of mandamus to 'persons holding office under the authority of the United States,' was not warranted by ...