Mccullough v. Hicks

• Decision Date: 16 April 1902
• Parties: McCULLOUGH et al. v. HICKS, County Auditor, et al. (PARDEE, Intervener).
• Court: South Carolina Supreme Court

41 S.E. 761

63 S.C. 542

McCULLOUGH et al.

v.HICKS, County Auditor, et al. (PARDEE, Intervener).

Supreme Court of South Carolina.

April 16, 1902.

STATE COURTS—JURISDICTION—INJUNCTION TO FEDERAL COURT.

1. A state court has no jurisdiction to enjoin the enforcement of a writ of mandamus issued by the United States circuit court, as it is a process ancillary to a judgment in a case of which the federal court originally had jurisdiction.¹

2. Where, in an action in a federal court defendant township appears, answers, resists the action, files an appeal bond, and prosecutes an appeal, the state court cannot inquire if the federal court had jurisdiction of defendant, but such question can only be made by motion in the original action in the federal court.

McIver, C. J., dissenting.

Petition by John W. McCullough and others against W. P. Hicks, county auditor, and others, for writ of injunction. Fannie C. Pardee intervened. Denied.

Joseph W. McCullough, for petitioners.

Jas. J. Earle, for county auditor and treasurer.

Lewis W. Parker and H. J. Haynesworth, for intervener.

GARY, A. J. This is an application to the supreme court, in the exercise of Its original jurisdiction, for an injunction restraining the county auditor from assessing, and the county treasurer from collecting, a certain tax, which they were directed to assess and collect, by mandamus issued by the United States circuit court for this district, for the purpose of paying certain judgments recovered in that court on coupons of bonds issued by Dunklin township, county of Greenville and state of South Carolina, in aid of a railroad.

The first question to be determined is whether this court has jurisdiction of the case. The determination of the issues raised by the pleadings involves the construction of section 1, art 4, Const. U. S., providing that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, " and this presents a federal question. Bank v. Farnum, 20 Sup. Ct. 506, 44 L. Ed. 619. In determining this question, this court is compelled to follow the decisions of the United States supreme court The proceeding by mandamus has been construed to be in the nature of process for enforcing payment of a judgment rendered by a circuit court of the United States. In U. S. v. Johnson Co., 73 U. S. 197, 18 L. Ed. 776, the court says: "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 a 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 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 thereis 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. Kentucky v. Dennison, 24 How. 97, 10 L. Ed. 725. Outside of this district, no circuit court can issue it at all, in the exercise of original jurisdiction. Power of the circuit courts in the several states to issue 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 exists and not where it is to be acquired by means of the writ. KendaU v. U. S., 12 Pet. 615, 9 L. Ed. 1181; McClung v. Silliman, 6 Wheat. 601, 5 L. Ed. 340; McIntire v. Wood, 7 Cranch, 506, 3 L. Ed. 420. This 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 direction that it should be issued. Knox Co. v. Aspinwall, 24 How. 385, 16 L. Ed. 735; Von Hoffman v. Quincy, 4 Wall. 554, 18 L. Ed. 403; Rock Island Co. Sup'rs v. U. S., 4 Wall. 446, 18 L. Ed. 419. Learned courts in the states have advanced the same views, and it does not appear that there is any contrariety of decision. Com. v. Allegheny Co., 32 Pa. 225; Com. v. City of Pittsburgh, 34 Pa. 509; Armstrong v. Allegheny Co., 37 Pa. 279; Graham v. City of Maysville, 6 Am. Law Reg. 620; Carroll v. Board, 28 Miss. 38; Moses, Mand. 126. Tested by all these considerations, our conclusion is, that the proposition 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. Kentucky v. Dennison, 24 How. 97, 16 L. Ed. 717."

In English v. Miller, 2 Rich. Eq. 320, it was decided that the court of equity of this state cannot enjoin the collection of an execution issued from the United States court. As the report of that case is quite short, we repro duce it in full, as follows: "In December, 1843, the defendant, who is a citizen of Kentucky, recovered judgment against the complainants on a promissory note in the court of the United States for South Carolina. In February, 1845, the complainants filed this bill, praying an injunction to restrain the marshall from collecting the execution issued on the judgment. The Chancellor: If the complainants had any...