Rosenbaum v. Bauer Same v. Board of Sup Rs of City and County of San Francisco

Citation30 L.Ed. 743,120 U.S. 450,7 S.Ct. 633
PartiesROSENBAUM v. BAUER, Treasurer, etc. 1 SAME v. BOARD OF SUP'RS OF CITY AND COUNTY OF SAN FRANCISCO
Decision Date07 March 1887
CourtUnited States Supreme Court

A. L. Rhodes, for plaintiff in error.

P. G. Galpin, for defendants in error.

BLATCHFORD, J.

On the thirteenth 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, (St. 1871-72, 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 21 of the bonds, of $1,000 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 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 eighteenth 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 twelfth 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 twenty-first of December, 1885, the plaintiff filed a petition 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 twenty-fourth 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 cause, (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 St. 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,) 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 section 14 of the judiciay act of 1789, (1 St. 81,) to those cases in which it might be necessary to the exercise of their jurisdiction. This provision of section 14 appears now in section 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 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 pre-emptive 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 section 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 section 11, the circuit court was, by section 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 legal act by the register of the land-office, or the party cannot sue. 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 menas of the writ proposed to be sued out.'

Consistently with the views in those cases, this court, in Riggs v. Johnson Co., (in 1867,) 6 Wall. 166, held that a circuit court had power to issue a mandamus to officers of a county, commanding them to levy a tax to pay a judgment rendered in that court against the county for interest on bonds issued by the county, where a statute of the state under which the bonds were issued had made such levy obligatory on the county. This ruling has been repeatedly followed since, and rests on the view that the issue of the mandamus is an award of execution on the judgment, and is a proceeding necessary to complete the jurisdiction exercised by rendering the judgment.

In many cases adjudged in this court since McIntire v. Wood, that case has been referred to as settling the law on the point to which it relates; as in The Secretary v. McGarrahan, 9 Wall. 298, 311; Bath Co. v. Amy, 13 Wall. 244; and Heine v. Levee Com'rs, 19 Wall. 655.

In Both Co. v. Amy, (in 1871,) ubi supra, the holder of bonds issued by a county in Kentucky applied to the circuit court of the United States for a mandamus to compel the county court to levy a tax to pay the interest on the bonds, on the ground that a statute of the state required the county court to do so. No judgment had been obtained for the interest. In Kentucky such a proceeding could have been maintained in a court of the state without a prior judgment, and would have been there treated as a suit of a civil nature at common law, and not a mere incident to another suit. The circuit court awarded the mandamus, but this court reversed the judgment; holding that it was doubtful whether the writ of mandamus was intended to be embraced in the grant of power in the eleventh section of the judiciarya ct of 1789 to the circuit courts, to take cognizance of suits of a civil nature at common law, where the diversity of citizenship there specified existed; but that the special provision of the fourteenth section of the...

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