A circuit court of the United States cannot acquire
jurisdiction, by removal from a state court under § 2 of the
Act of March 3, 1875, c. 137, 18 Stat. 470, of an original
proceeding to obtain a mandamus against the treasurer or the board
of supervisors of a city to compel them to take action, in
accordance with a statute of the state, to pay the interest or
principal of bonds issued by the city.
Section 716 of the Revised Statutes, giving power to a circuit
court to issue all writs not specifically provided for by statute
which may be necessary for the exercise of its jurisdiction and
agreeable to the usages and principles of law, construed in
connection with §§ 1 and 2 of the act of 1875, operates
to prevent the issuing by the circuit court of a writ of mandamus
except in aid of a jurisdiction previously acquired by that
court.
These actions were commenced in a state court of California,
were removed thence into the circuit court of the United States on
the plaintiff's motion, and were remanded to the
Page 120 U. S. 451
state court on the defendant's motion. The plaintiff sued out
these writs of error. The case is stated in the opinion of the
Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
On the 13th 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, Stat. 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
twenty-one 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
Page 120 U. S. 452
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 18th 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 12th
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 21st of December, 1885, the plaintiff filed a
petition
Page 120 U. S. 453
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 24th 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 F. 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 Stat. 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, 7 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 § 14 of the
Judiciary Act of 1789, 1 Stat. 81, to those cases in which it might
be necessary to the exercise of their jurisdiction. This provision
of § 14 appears now in § 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
Page 120 U. S. 454
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 preemptive 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 § 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 § 11, the circuit court was,
by § 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 14th 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 means of the writ proposed to be sued
out."
Consistently with the views in those cases, this Court, in
Riggs v. Johnson
County, 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
Page 120 U. S. 455
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,
76 U. S. 311;
Bath County v.
Amy, 13 Wall. 244, and
Heine v.
Levee Commissioners, 19 Wall. 655.
In
Bath County 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 11th section of the Judiciary Act 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 14th section of the
act, while, no doubt, including mandamus under the term "other
writs," indicated that the power to grant that writ generally was
not understood to be covered by the 11th section. Citing the prior
cases, the Court said:
"The writ cannot be used to confer a jurisdiction which the
circuit court would not have without it. It is authorized only when
ancillary to a jurisdiction already acquired."
The same doctrine was applied in
Graham v.
Norton, in 1872, 15 Wall. 427, where a circuit
court of the United States had affirmed the action of a district
court in granting a mandamus to compel a state auditor to issue
certificates as to the amount of illegal taxes paid by the
applicant, the issuing of such certificates being provided for by a
statute of the state. This Court held that neither the circuit
court nor the district court had jurisdiction to issue the
writ.
Page 120 U. S. 456
The same principles have been asserted by this Court in cases
arising since the Act of March 3, 1875, as in
County of Greene
v. Daniel, 102 U. S. 187,
102 U. S. 195;
in
United States v. Schurz, 102 U.
S. 378,
102 U. S. 393;
in
Davenport v. County of Dodge, 105 U.
S. 237,
105 U. S.
242-243, and in
Louisiana v. Jumel,
107 U. S. 711,
107 U. S.
727.
But now it is contended for the plaintiff in error that the
circuit court can obtain jurisdiction of these cases by their
removal under § 2 of the act of 1875. It was evidently thought
that the circuit court would have no original cognizance of them if
commenced in that court, for they were not brought in that court,
although in the petition for removal in each proceeding the
plaintiff states that he was a citizen of New York when it was
commenced, and in the petition for removal in the first proceeding
he states that Bauer was at its commencement a citizen of
California, the defendant in the second proceeding being, when it
was brought, a municipal corporation of California. The proceedings
were evidently instituted with the purpose of removing them, for
the petitions for removal were severally filed by the plaintiff
three days and ten days after process was served on the defendant,
and nothing was done in the state court but to file a complaint,
and to serve a summons, and to take proceedings for a removal.
To maintain the jurisdiction by removal, it is contended that
that jurisdiction does not depend on the original jurisdiction of
the circuit court; that the former may exist without the latter,
and that in the present case it does exist.
The only possible ground of jurisdiction in the present cases is
diversity of citizenship, for the right of action claimed does not
arise under the Constitution or a law or treaty of the United
States. It exists, if at all, under a statute of the state. The
state is not alleged to have passed any law impairing the
obligation of any contract of which the plaintiff claims the
benefit, or to have deprived him of any right secured to him by the
Constitution of the United States. In respect to jurisdiction by
citizenship, as applicable to this case, § 1 of the act of
1875, in regard to original jurisdiction, and § 2, in regard
to jurisdiction by removal, describe the subject matter of the
suit
Page 120 U. S. 457
in terms which are the same legally. In § 1, the suit of
which "original cognizance" is given is "a suit of a civil nature
at common law or in equity," where the matter in dispute exceeds,
exclusive of costs, the sum or value of $500, and "in which there
shall be a controversy between citizens of different states." In
§ 2, the language is identical except that the suit is to be a
suit "of a civil nature
at law or in equity." In § 11
of the act of 1789, the original cognizance given to the circuit
court was of "all suits of a civil nature at common law or in
equity," where the matter in dispute exceeds, exclusive of costs,
the sum or value of $500, and "the suit is between a citizen of the
state where the suit is brought and a citizen of another state." In
§ 12 of that act, jurisdiction by removal was given to the
circuit courts of a like suit. Now if, as has always been held,
"original cognizance," under § 11 of the act of 1789, did not
exist of proceedings like those before us, founded on citizenship,
it must necessarily follow that original cognizance cannot exist,
under § 1 of the act of 1875, of such a proceeding, founded on
citizenship. If so, it is impossible to see how, with legally
identical language in § 2 with that in § 1, jurisdiction
by removal can exist, under § 2 of the act of 1875, of
proceedings like those before us, founded on citizenship. This view
is entirely aside from the principle which has controlled in some
cases, where a restriction as to original jurisdiction, contained
in other provisions of § 11 of the act of 1789, did not exist
in § 12 of that act in regard to jurisdiction by removal, or
in other removal statutes. Of that character was the restriction in
§ 11 on the right of an assignee of a chose in action to sue
if the suit could not have been prosecuted in the court had the
assignment not been made, as illustrated by the cases cited by the
plaintiff in error of
City of Lexington v.
Butler, 14 Wall. 282, and
Claflin v.
Commonwealth Ins. Co., 110 U. S. 81.
In
Gaines v. Fuentes, 92 U. S. 10, an
application for removal was sustained under the local prejudice Act
of March 2, 1867, 14 Stat. 558, of a suit to annul a will on the
ground that the act, in authorizing the removal, invested the
federal court by that fact with all needed jurisdiction to
adjudicate the case.
Page 120 U. S. 458
But that case was not one of a mandamus, to which the implied
restriction of the statute in respect to that writ was applicable.
The same remark may be made as to
Boom Company v.
Patterson, 98 U. S. 403, where
the removal proceeding was one to condemn lands for the use of a
boom company, and as to
Hess v. Reynolds, 113 U. S.
73, where the removal was of a proceeding in a probate
court to obtain payment of a claim against the estate of a deceased
person, and as to
Bliven v. New England Screw Co., 3
Blatchford 111, and
Barney v. Globe Bank, 5 Blatchford
107, where foreign corporations successfully maintained
jurisdiction by removal in ordinary suits, although they could not
have been compulsorily brought into the circuit court by original
process.
As this Court, while §§ 11 and 12 of the act of 1789
were in force, and § 14 of that act was also in force, always
held, even where the requisite diversity of citizenship existed,
that the restriction of § 14 operated to prevent original
cognizance by a circuit court, under § 11, of a proceeding by
mandamus not necessary for the exercise of a jurisdiction which had
previously otherwise attached, so, with §§ 1 and 2 of the
act of 1875 in force at the same time with § 716 of the
Revised Statutes, the restriction of § 716 must operate to
prevent cognizance by removal, by a circuit court, under § 2
of the act of 1875, even where the requisite diversity of
citizenship exists, of a like proceeding by mandamus. As was said
by this Court, speaking by MR. JUSTICE MILLER, in
Hess v.
Reynolds, 113 U. S. 73,
113 U. S. 79-80,
the language of the repealing clause of the act of 1875 is "that
all acts and parts of acts in conflict with the provisions of this
act are hereby repealed," and the statute to be repealed must be in
conflict with the act of 1875, or that effect does not follow.
There is nothing in § 2 or any other part of the act of 1875
which is in conflict with or has the effect to abolish the
restriction of § 716, just as there was nothing in § 11
or § 12, or any other part of the act of 1789 which was in
conflict with or had the effect to abolish the restriction of
§ 14 of that act.
These cases fall directly within the provision of § 5 of
the act of 1875 that if, in any suit removed from a state court
Page 120 U. S. 459
to a circuit court of the United States, it shall appear to the
satisfaction of said circuit court at any time after such suit has
been brought or removed thereto that such suit does not really and
substantially involve a dispute or controversy properly "within the
jurisdiction" of said circuit court, the said circuit court shall
proceed no further therein, but shall dismiss the suit or remand it
to the court from which it was removed, as justice may require.
What is meant by the expression "within the jurisdiction?" It means
"within the judicial cognizance," within the capacity to determine
the merits of the dispute or controversy, and to grant the relief
asked for. The provision does not give countenance to the idea that
the suit or proceeding is to be retained in the circuit court till
brought to a formal adjudication on the merits, when at that
ultimate stage, the court must say that the case is not within its
jurisdiction, after the party successfully challenging the
jurisdiction has been harassed by expense and injured by delay. But
it means what it says: that the dismissal or remanding "shall" be
made whenever, "at any time" after the suit is brought or removed
to the circuit court, it shall appear to the satisfaction of that
court that there is, really and substantially, no dispute or
controversy of which it has jurisdiction in the sense above pointed
out; the right to have a review by this Court of the order
dismissing or remanding the suit being given to the aggrieved party
at once, instead of his being compelled to await the making of such
an order at the end of a full and formal hearing or trial, on
issues and proofs, on the merits alleged on either side.
Orders affirmed.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN and
MR. JUSTICE MATTHEWS, dissenting.
MR. JUSTICE HARLAN and MR. JUSTICE MATTHEWS agree with me in
dissenting from the judgment of the court in this case.
It is a constitutional right of the citizens of the several
states having controversies with the citizens of other states to
have a national forum in which such controversies may be
litigated.
Page 120 U. S. 460
It was one of the declared purposes of the Constitution that the
judicial power of the United States should extend to certain cases
enumerated, one of which was "to controversies between citizens of
different states," and it was declared that this power should be
vested in one Supreme Court and in such inferior courts as the
Congress might from time to time ordain and establish, thus making
it the duty of Congress to establish such tribunals. If Congress
fails in this constitutional duty, the citizens have no redress but
the ballot box. But Congress has not failed. It has established the
requisite tribunals and has invested them with the powers necessary
to give the citizens their constitutional rights, or if it has
failed in any respect either with regard to persons or causes, we
think it has not failed in respect to the class of cases to which
the present belong.
Congress, by the Act of March 3, 1875, passed to determine the
jurisdiction of the circuit courts, has declared that they shall
have original cognizance, concurrent with the courts of the several
states, among other things, of all suits of a civil nature at
common law or in equity, involving over $500 in which there shall
be a controversy between citizens of different states, and that any
such suit, brought in any state court, may be removed by either
party into the Circuit Court for the proper district. This
jurisdiction should be liberally construed so as to give full
effect, as far as may be, to the constitutional right as presumably
within the intent of Congress. The terms "suits at common law and
in equity" or "suits at law and in equity," which is the same
thing, are in themselves of the most general character and of the
broadest signification, and this Court ought not by its decisions
to restrict their application. It is not meant by the expression
"suits at common law" to confine the jurisdiction of the circuit
courts to the old technical actions of trespass, trover, trespass
on the case, debt, detinue, assumpsit, etc., but it extends to and
includes any form of proceeding of a civil nature in which a legal
right cognizable by the courts of common law is sought to be
judicially enforced, by whatever name, under the new-fangled
nomenclature adopted by the different states, the proceeding
Page 120 U. S. 461
may be called. Suits at law and equity include every form of
proceeding except those peculiar to admiralty, ecclesiastical or
probate, and military jurisdictions. And even in matters savoring
of ecclesiastical process, after an issue has been formed between
definite parties, we have held that the controversy came under the
head of a suit at law.
Gaines v. Fuentes, 92 U.
S. 17;
Hess v. Reynolds, 113 U. S.
73. The broad terms used in the law were purposely
employed, as it seems to us, to make the jurisdiction complete to
the full extent which the Constitution intended it should have. It
is true that in one or two cases we have intimated a distinction
between the extent of jurisdiction given in the first and that
given in the second sections of the act of 1875; but that
distinction, if well founded, does not affect the present case,
since they arise under the second section, which has been supposed
to be the broader of the two, and, in any event, the ground of
distinction is not here involved.
Now a mandamus, which was originally a prerogative writ only,
has come to be in many cases and in most states a private suit
brought for the purpose of enforcing a private right. This is true
in the two cases now before us. The appellant has a money demand
against the City and County of San Francisco, and is seeking to
collect it in the usual way in which such demands are collectible
by the law of procedure of California. The mandamus which he seeks
is the mere process for commencing his action, and is a proper
process suited to his case. The City and County of San Francisco
can set up any defenses to the action in this form which it could
do in the ordinary action of debt or upon contract. It is
essentially a civil suit at law, no matter by what name it is
called -- certainly as much so as were the proceedings in
Gaines v. Fuentes, Hess v. Reynolds, already cited, and in
Boom Company v. Patterson, 98 U.
S. 404, where there was an issue to ascertain the value
of property taken by virtue of eminent domain. In
Davies v.
Corbin, 112 U. S. 36, we
sustained a writ of error from this Court to the circuit court on a
judgment in a proceeding for mandamus to carry into effect a
judgment for a debt. THE CHIEF JUSTICE there said:
"While the writ of mandamus, in
Page 120 U. S. 462
cases like this, partakes of the nature of an execution to
enforce the collection of a judgment, it can only be got by
instituting an independent suit for that purpose. There must be
first a showing by the relator in support of his right to the writ,
and second, process to bring in the adverse party whose action is
to be coerced, to show cause, if he can, against it. If he appears
and presents a defense, the showings of the parties make up the
pleadings in the cause, and any issue of law or fact that may be
raised must be judicially determined by the court before the writ
can go out. Such a determination is, under the circumstances, a
judgment in a civil action brought to secure a right -- that is to
say, process to enforce a judgment. Such a judgment is, in our
opinion, a final judgment in a civil action within the meaning of
that term as used in the statutes regulating writs of error to this
Court."
In the jurisprudence of California, it has frequently been held
that a mandamus is a civil action. It is only necessary to refer to
the cases to show that this point is beyond all dispute.
Perry
v. Ames, 26 Cal. 372;
Cariaga v. Dryden, 30 Cal. 246;
Courtwright v. Bear River Mining Co., 30 Cal. 583;
Knowles v. Yates, 31 Cal. 90;
People v. Kern
County, 45 Cal. 679;
People v. Thompson, 66 Cal.
398.
But it is urged that the power given to the circuit courts of
the United States to issue writs of mandamus is limited by act of
Congress to certain special cases -- namely only where they may be
necessary for the exercise of their ordinary jurisdiction,
Rev.Stat. § 716, and that, according to the decisions of this
Court in suits for the collection of money, the writ can only be
used as ancillary to an execution after a judgment has been
obtained in an ordinary suit. It is sufficient to say that all of
these decisions except two relate to the law as it was before the
passage of the act of 1875. That act, as we have seen, is expressed
in general terms without any qualification as to the writs or
process which shall be employed, and repeals any restraining effect
of § 716 of the Revised Statutes, if in conflict with it. The
two cases to which we have referred as decided since the act are
County of Greene v. Daniel, 102 U.
S. 187, and
Davenport v. County of Dodge,
105 U. S. 237. But
the
Page 120 U. S. 463
point decided in these cases was that although the state law
gave the remedy of mandamus to compel the levy of taxes for the
payment of bonds, an ordinary action might nevertheless be brought
on the bonds for the purpose of obtaining a judgment. They do not
decide, whatever dicta may appear to have been made, that mandamus
might not have been brought originally.
The inference drawn from § 716 of the Revised Statutes is
that, as it grants power to this Court and the circuit courts
"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"
(which is rightly supposed to include the writ of mandamus), it
must be construed as denying the power to issue that writ in any
other case. This conclusion might be admissible if it is restrained
to the instance of the particular writ of mandamus which alone was
in contemplation -- that is, the prerogative writ of mandamus as
known to the practice of the King's Bench in England. The object of
this section of the statute was to give the courts of the United
States the power to issue such a writ when necessary in the
exercise of a jurisdiction in which the use of such a writ was
conformable to law. But the section had no reference to mandamus as
a form of civil action, as it has become in modern times, having a
definite purpose and scope, and as distinct in its use, for the
purpose of enforcing private rights of a particular description, as
are the forms of actions known to the common law, such as
assumpsit, debt, or trespass. Viewed as a civil action, authorized
by the laws of the state in which the suit is brought, the
jurisdiction of the circuit courts is established by § 1 of
the act of 1875, which embraces
"all suits of a civil nature at common law or in equity, where
the matter in dispute exceeds, exclusive of costs, the sum or value
of five hundred dollars, . . . in which there shall be a
controversy between citizens of different states."
If there be such a suit, in which, by the law of the state, the
form of proceeding is required to be in mandamus, § 914 of the
Revised Statutes applies, which requires that
"The practice, pleadings, and forms and modes of proceeding in
civil cases, other than equity
Page 120 U. S. 464
and admiralty cases, in the circuit and district courts shall
conform as near as may be to the practice, pleadings, and forms and
modes of proceeding existing at the time in like causes in the
courts of record of the state within which such circuit or district
courts are held, any rule of court to the contrary
notwithstanding."
Effect may be given in the present case to this provision of the
statute without running counter to § 716. The fallacy of the
argument against the jurisdiction of the circuit court in such
cases is in construing § 716 as an exception out of the
general grant of jurisdiction to that court over all suits in which
the controversy is between citizens of different states, whereas it
is a general grant of power to issue all writs necessary to the
exercise of their jurisdiction -- a power which would probably have
been implied without an express grant.
In our judgment, the case ought not to have been remanded, and
the judgments of the circuit court remanding the same should be
reversed.