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after judgment to compel the levy of the tax.23 The writ issues to compel the proper county officers to assess at its true value the property subject to taxation in order that sufficient taxes may be levied to pay the amount due a judgment creditor 24

A State statute forbidding the issue of a mandamus, in certain cases, will not impair the jurisdiction of the Federal courts in that respect.25

A repeal of the State statute authorizing the officer to levy the tax does not divest the power of the Federal court to compel him to do so by mandamus, after a judgment upon a contract before the repeal.26 Otherwise the writ will not issue to compel an officer to perform a duty not imposed upon him by the law of the State under which he was appointed.27 A Federal court cannot appoint commissioners to levy and collect the tax, although a State court has commanded the county officers to make such levy and collection in payment of a judgment and these have failed to do so.28 Where the original State statute made it the duty of the county court, when the office of sheriff was vacant, to appoint a single collector under a single bond, to collect all county taxes including those levied to pay the county debts, and an amendment, subsequent to the issues of the county bonds, authorized such a court to appoint several collectors giving separate security each charged with the duty of collecting a designated part of the taxes; it was held that this was unconstitutional and a writ was issued directing the county judge in case of such vacancy to appoint a special collector to collect levies to satisfy the judgment and other county taxes and to continue such appointment and direction until a collector should

23 Galena v. Amy, 5 Wall. 705, 18 L. ed. 560.

24 U. S. Fall City Const. Co. v. Jimmerson, C. C. A., 222 Fed. 489.

25 U. S. ex rel. Kilpatrick v. Cap. devielle, C. C. A., 118 Fed. 809.

26 Wolff v. New Orleans, 103 U. S. 358, 26 L. ed. 395; Von Hoffman v. Quincy, 4 Wall. 535, 18 L. ed. 403.

27 U. S. v. Macon County, 99 U. S. 582, 25 L. ed. 331; U. S. v. La

Fed. Prac. Vol. III-5

bette County, 7 Fed. 318; U. S. v. County of Clark, 95 U. S. 769, 24 L. ed. 545; Memphis v. U. S., 97 U. S. 293, 24 L. ed. 920; Brownsville v. Loague, 129 U. S. 493, 32 L. ed. 780. Cf. Hicks v. Cleveland, C. C. A., 106 Fed. 459; Padgett v. Post, C. C. A., 106 'Fed. 600; Little Rock v. U. S. ex rel. Howard, C. C. A., 103 Fed. 418.

28 Yost v. Dallas County, 236 U. S. 50.

accept the appointment and qualify.29 When a municipal corporation had refused to comply with its obligation to levy a special assessment to pay bonds, and a judgment was entered directing that a bond holder recover from it the amount for which the assessment should have been levied to be enforceable only by a writ of mandamus; a bill in equity to collect the amount from the persons against whom the assessment was directed was sustained.30 Where the charter of the municipal corporation has been repealed and its corporate existence extinguished, no such mandamus can be granted.31 It has been held that the court will not thus control the discretion of the municipal authorities, to make appropriations to pay current expenses out of the fund in the city treasury: 32 When such a writ is issued by a District Court of the United States to enforce its own judgment, the jurisdiction cannot be enlarged so as to include a judgment of another court.38 A mandamus to compel the levy of a tax cannot be issued until after a judgment has been obtained.34 It has been said that after a claim against a school district has been duly established and liquidated, mandamus is the proper remedy to compel payment thereof.35

$ 457d. Mandamus under the interstate commerce laws. The District Courts of the United States have jurisdiction, upon the application of the Attorney-General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of said Act to regulate commerce or of any Act supplementary thereto or amendatory thereof by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of said Acts, or any of them.” 1

29 Hendrickson v. Apperson, 245 U. S. 105.

30 Cushman v. Warren-Scharf Asphalt Paving Co., C. C. A., 220 Fed. 857.

31 Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. ,197; Barkley v. Levee Com ’rs, 93 U. S. 258, 23 L. ed. 893. But see U. S. v. Port of Mobile, 12 Fed. 768.

For the power of the court to appoint a receiver in such a case, see supra, $ 306.

32 Cleveland v. U. S., C. C. A., 111 Fed. 341, 347.

33 U. S. ex rel. Kerr v. New Orleans, C. C. A., 117 Fed. 610, 612.

34 Rosenbaum v. Bauer, 120 U. S. 450, 30 L. ed. 743, and cases cited.

35 Whitaker & Ray Co. v. Roberts, County Superintendent of Schools, 155 Fed. 882.

$ 457d. 1 Act of Feb. 4, 1887, ch. 104, $ 20, 24 St. at L. 386, as amended June 29, 1906, ch. 3591, $ 7, 34

The District Courts of the United States “have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ; Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of the question of fact; Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement."' 2

The Act of March 1, 1913, providing for the physical valuation of property of carriers provides, “that the district courts of the United States shall have jurisdiction upon the application of the Attorney General of the United States at the request of the commission, alleging a failure to comply with or a violation of any of the provisions of this section by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of this section." 8

The writ has been issued to compel the Interstate Commerce Commission to receive proof as to the present cost of condemna

St. at L. 593, Feb. 25, 1909, 35 St. at L. 649, June 18, 1910, ch. 309, $ 14, 36 St. at L. 555, March 4, 1915, ch. 176 $ 1, 38 St. at L. 1196, Aug. 9, 1916, ch. 301, 39 St. at L. 441, Feb. 28, 1920, $$ 434, 436, Comp. St., § 8592, supra, 8 77d.

2 Act of March 2, 1889, ch. 382, $ 10, 25 St. at L. 862, Comp. St., $ 8593.

3 Act of Feb. 4, 1887, ch. 104, $ 19a, added March 1, 1913, ch. 92, 37 St. at L. 701, Feb. 28, 1920, § 433, Comp. St., § 8591.

tion and damages, or purchase, of the land, or rights of way and terminals owned by a railroad and to report thereupon in accordance with the statute last quoted.* To compel a carrier to carry the petitioners' coal in such reasonable quantities as could be handled. To compel a carrier to furnish the relator its equitable proportion of cars to carry coal, when the basis of distribution between neighboring shippers has been fixed by contract. To compel an express company to traisport intoxicating liquor into a State where prohibition was established.? To compel a common carrier to file annual reports. The writ will not be issued unless the matter has first been submitted to the Interstate Commerce Commission.

The writ was denied when sought to compel the production of books and papers which did not relate to Interstate Commerce although they might show a violation of the anti-trust law, 10 and when the allegations in the petition as to the papers of which production was requested were so vague that the court could not see whether any of these were privileged communications between an attorney and client and what parts thereof were relevant to an investigation of Interstate Commerce. 11

The provision that the writ may issue notwithstanding a question of fact raised by the pleading is undetermined does not justify its issue when no case of unjust discrimination is shown to exist, although it does authorize the amount of compensation to be determined after the writ has been issued upon proper

terms. 12

$ 457e. Mandamus against the executive and administrative officers of the United States. In general. The only courts which have original jurisdiction to issue the writ of mandamus against an officer of the United States in the absence of special statute,

4 U. S. ex rel. Kansas City Southern Ry. Co. v. Interstate Commerce Commission, 252 U. S. 178.

5 U. S. ex rel. Stoney Coal Co. v. Louisville & N. R. Co., 195 Fed. 88.

8 L'. S. v. Union Stockyard & Transit Co., 192 Fed. 330.

9 Baltimore & Ohio R. R. Co. v. U. S. ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. ed. 292.

10 U. S. v. Louisville & N. Ry. Co., 212 Fed. 486.

6 U. S. ex rel. Green Briar Coal & Coke Co. v. Norfolk & Western Ry. Co., C. C. A., 143 Fed. 266 reversing 138 Fed. 849.

7 U. S. ex rel. Friedman v. U. S. Express Co., 180 Fed. 1006.

11 Ibid.

12 U. S. ex rel. Morris v. Delaware L. & W. R. Co., 40 Fed. 101.

when the writ is not ancillary to other jurisdictional powers, and where neither a State nor an ambassador or other public minister, nor a consul or a vice-consul is a party, are the Supreme Court of the District of Columbia, and the Territorial and insular Courts.

The District Court of the Canal Zone has power to issue the writ in a proper case. It may compel the auditor to issue a warrant in payment of a salary fixed by Congress for which there has been an appropriation. The District Court of Alaska may issue a mandamus to compel a commissioner of that Territory to proceed in a cause.5

A District Court has no jurisdiction to compel a postmaster by mandamus to transmit mail matter at a lower rate of postage than that charged, nor to compel a collector to examine into the facts as to the validity of a claim to a trade-mark affecting importations. It has been said that, although a District Court may have the power to grant the writ of mandamus at the application of a receiver in bankruptcy, it will not do so to compel a postmaster to transport the receiver's publications, when there is doubt as to their being mailable.8

A State court cannot issue a mandamus against an officer of the United States to compel the performance of a duty of his Federal office.

The writ was denied when sought to compel a commission with quasi-judicial functions to enroll an applicant as a member of an Indian tribe. 10

In a case where the application is not made by a person claim

$ 457e. 1 Kendall v. U. S., 12 Pet. 524, 9 L. ed. 1181; U. S. v. Schurz, 102 U. S. 378, 26 L. ed. 167. See U. S. v. Guthrie, 17 How. 284, 15 L. ed. 102; infra, $ 458.

2 Clough v. Curtis, 134 U. S. 361, 33 L. ed. 945. Specific power to issue the writ is granted to the District Courts of Porto Rico. Act of March 2, 1917, ch. 145, $ 48, Comp. St., § 3803u.

3 Smith v. Jackson, C. C. A., 241 Fed. 747.

4 Smith v. Jackson, C. C. A., 241 Fed. 747.

5 Finn v. Hoyt, 52 Fed. 83.

6 U. S. v. Pearson, 24 Blatchf. 453.

7 Re Vintschger, 50 Fed. 459. 8 Re Coleman, 131 Fed. 151.

9 McClung v. Silliman, 6 Wheat. 598, 5 L. ed. 340.

10 Kimberlin V. Commission to Five Indian Tribes, C. C. A., 104 Fed. 653.

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