Application for leave presented October 30, 1899. Denied November 13, 1899.
Blake v. McClung, 172 U.S. 239, (which case was brought here by writ of error to the Supreme Court of the State of Tennessee,) having been remanded to that court, and the mandate having gone down, the counsel of Blake and others moved for the entry of a decree placing them in the same class and on exact equality with the Tennessee creditors in respect to the distribution of the assets of the insolvent company among its creditors; but this the state Supreme Court declined to do, and entered a decree that Blake and others were entitled to participate in the assets on the basis of a broad distribution of the assets of the corporation among all of its creditors without preference or priority, as though the act of 1877 had not been passed; that there should be a computation of the aggregate indebtedness due from the corporation to its creditors of every class wherever residing, whereupon Blake and others should be paid the percentage and proportion found to be due to them on that basis; and that the residue of the estate of the insolvent company should be applied, first to the payment of the indebtedness due to the creditors of the corporation residing in Tennessee as provided in section five of the act of 1877, and then pro rata to the payment of the debts of the alien and non-resident creditors of said corporation other than Blake and others. To this decree Blake and others duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance. Held that, without inquiring whether the conclusions of the Supreme Court of Tennessee were or were not in harmony with the views expressed by this court, the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error and not by mandamus, the remedy on error being not only entirely adequate, and open to be sought unrestrained by the amount involved, but, in respect of dealing with state tribunals, being manifestly the proper remedy.
Mr. Heber J. May and Mr. Tully R. Cornick filed a brief for petitioners.
Mr. S.C. Williams and Mr. John W. Green were allowed to file a brief in opposition.
The writ of mandamus cannot be issued to compel a judicial tribunal to decide a matter within its discretion in a particular way, or to review its judicial action had in the exercise of legitimate jurisdiction, nor be used to perform the office of an appeal or writ of error. And it only lies, as a general rule, where there is no other adequate remedy. As respects the Federal courts, it is well settled that where the mandate leaves nothing to the judgment or discretion of the court below, and that court mistakes or misconstrues the decree or judgment of this court and does not give full effect to the mandate, its action may be controlled, either upon a new appeal or writ of error if involving a sufficient amount, or by writ of mandamus to execute the mandate of this court. City Bank of Fort Worth v. Hunter, 152 U.S. 512; In re Sanford Fork and Tool Company, 160 U.S. 247; In re Potts, 166 U.S. 263.
Nevertheless, without inquiring whether the conclusions of the Supreme Court of Tennessee were or were not in harmony with the views expressed by this court, we are of opinion that the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error and not by mandamus. The remedy on error is not only entirely adequate and open to be sought unrestrained by the amount involved, but in respect of dealing with state tribunals is manifestly the proper remedy.
That it is adequate under § 709 of the Revised Statutes is clear. Stanley v. Schwalby, 162 U.S. 255, a case on a second writ of error to the state court, in which the statutes and decisions bearing on the subject are fully considered. And that it should be resorted to when the action of the state courts is complained of is equally plain. Assuming that the question of the form of the proceeding which this court might adopt to enforce the execution of its own mandates in the courts of the United States is one of practice merely, and either mode might be pursued, as ruled by Mr. Chief Justice Taney in Perkins v. Fourniquet, 14 How. 328, 330, we think the summary character of the proceeding by mandamus renders it inappropriate in respect of the courts of another jurisdiction.
By the thirteenth section of the judiciary act of September 24, 1789, c. 20, 1 Stat. 81, this court was clothed with the power to issue "writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States;" and this was carried forward into § 688 of the Revised Statutes. And it was ruled in Graham v. Norton, 15 Wall. 427, that "this express authority to issue writs of mandamus to National courts and officers has always been held to exclude authority to issue these writs to state courts and officers;" excepting "where they have been issued as process to enforce judgments." In Gordon v. Longest, 16 Pet. 97, which was a writ of error to review the action of a state court wrongfully refusing to remove a case into the Circuit Court, Mr. Justice McLean intimated that mandamus might lie to compel action by the state court, but the remark was purely obiter and cannot be regarded as authoritative.
By the fourteenth section of the judiciary act, Circuit Courts were vested with power "to issue writs of scire facias, . . . and all other writs not specially provided for by statute, which may be necessary to the exercise of their respective jurisdictions, and agreeable to the principles and usages of law ;" which was reenacted as section 716 of the Revised Statutes. In Bath County v. Amy, 13 Wall. 244, it was held that the Circuit Courts had no power to issue writs of mandamus to state courts, by way of original proceeding, and where the writ was neither necessary nor ancillary to any jurisdiction which the court then had.
But our attention has been called to no case in which this court has exercised jurisdiction by mandamus under circumstances similar to those supposed to exist here; while there are cases in the Circuit Courts which illustrate the propriety of declining to do so.
In Ladd v. Tudor, 3 Wood. Min. 325, 332, which was an application for a mandamus to compel a state court to remove a cause to the Circuit Court, Mr. Justice Woodbury said: "Some doubt might exist, whether a mandamus to a state court from this tribunal organized under another government, was a proper remedy. It has been settled that a state court cannot issue a mandamus to an officer of the United States. McClung v. Silliman, 6 Wheat. 598. In 16 Pet. 97 the remedy was by a writ of error to reverse the first judgment in the state court. And where another remedy lies, a mandamus is held to be improper. 10 Johns. 484. But Cooke, 160, seems to countenance the present cause. Brown v. Crippin, 4 Hen. M. 173, quoted in some of the digests for it, seems, on examination, to be a case of a mandamus by the highest state court to the common pleas in the same State, to remove such a case, and not one from a court of the United States. . . . In McIntire v. Wood, 7 Cranch, 504, it was held that a mandamus did not lie from the Circuit Court to an officer of the United States; and though that speaks generally of the power of this court to issue it in order to sustain its jurisdiction, and the decision in Cooke rests on that power of superior courts to enforce their jurisdiction over inferior ones by mandamus, yet it is very questionable whether a case like the present ought to be considered within that principle. It is a correct principle between inferior and superior courts of the same government, but difficult to be upheld between courts established by separate governments. If necessary to decide on this, it might require more grave consideration before sustaining it in cases like this, because being a mode of redress very likely to lead to jealousies and collisions between the States and General Government of a character anything but desirable." The Justices v. Murray, 9 Wall. 274, was a writ of error to the Circuit Court for the Southern District of New York from a judgment for a peremptory mandamus rendered against the justices of the Supreme Court of New York for the Third District to remove a cause, but Mr. Justice Nelson stated in a note on page 276, that: "The alternative and peremptory mandamus against the Supreme Court of New York was allowed by consent of the counsel for the defendants, with a view to present the question raised and decided in the case. The Circuit Court had refused to issue it against the court, and issued it only against the clerk. This is stated to prevent the case from being cited as an authority for the power, and without intending to express any opinion on this subject." And see Hough v. Western Transportation Company, 1 Bissell, 425, Drummond, J.; Fisk v. Union Pacific Railroad Company, 6 Blatchford, 362, Blatchford, J.; High on Extr. Remedies, Third Edition, § 227 et seq., and cases cited.
Leave to file petition denied.