Blake v. McClung, 172 U. S. 239
(which case was brought here by writ of error to the Supreme Court
of the 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
Page 175 U. S. 115
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
nonresident 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.
The Embreeville Freehold, Land, Iron & Railway Company,
Limited, was a corporation organized under the laws of Great
Britain and Ireland for mining and manufacturing purposes, carrying
on business in the State of Tennessee, as authorized by a law of
that state of March 19, 1877. The fifth section of the act gave
priority in the distribution of assets to resident creditors of the
state. The company having become insolvent, McClung and others
filed an original creditors' bill in the proper court, asking the
appointment of a receiver and the administration of the affairs of
the company as an insolvent corporation. The case resulted in a
final decree by the Supreme Court of Tennessee adjudging that the
Tennessee creditors were entitled, under said section, to priority
in the distribution of the assets over simple contract creditors of
other states and countries. Among the creditors affected were C. G.
Blake and Rogers, Brown & Company, citizens of the State of
Ohio, and the Hull Coal & Coke Company, a corporation of
Virginia, who, being dissatisfied, sued out a writ of error from
this Court. And it was held, reversing the decree of the state
supreme court, that the fifth section of the act of 1877, insofar
as it gave priority to
Page 175 U. S. 116
Tennessee creditors over creditors of the same class of other
states of the Union, was in violation of the second section of the
fourth article of the Constitution, providing that "the citizens of
each state shall be entitled to all privileges and immunities of
citizens in the several states," but it was also ruled that a
corporation created under the laws of another state was not a
"citizen" within the meaning of this clause.
Blake v.
McClung, 172 U. S. 239,
172 U. S. 258,
172 U. S.
262.
In the opinion, among other things, it was said:
"We adjudge that, when the general property and assets of a
private corporation lawfully doing business in a state are in
course of administration by the courts of such state, creditors who
are citizens of other states are entitled, under the Constitution
of the United States, to stand upon the same plane with creditors
of like class who are citizens of such state, and cannot be denied
equality of right simply because they do not reside in that state,
but are citizens residing in other states of the Union."
The judgment was in these terms:
"The final judgment of the Supreme Court of Tennessee must be
affirmed as to the Hull Coal & Coke Company, because it did not
deny to that corporation any right, privilege, or immunity secured
to it by the Constitution of the United States. As to the other
plaintiffs in error, citizens of Ohio, the judgment must be
reversed, and the cause remanded for further proceedings not
inconsistent with this opinion, and it is so ordered."
The mandate having gone down, the counsel of Blake and Rogers,
Brown & Company 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 Rogers, Brown
& Company 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
Page 175 U. S. 117
class, wherever residing, whereupon Blake and Rogers, Brown
& Company 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
nonresident creditors of said corporation other than Blake and
Rogers, Brown & Company. Beard, J., dissented. 52 S.W.
1001.
To this decree Blake and Rogers, Brown & Company 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.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
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 v. Hunter, 152 U.
S. 512;
In re Sanford Fork and Tool Co.,
160 U. S. 247;
In re Potts, 166 U. S. 263.
Page 175 U. S. 118
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,
55 U. S. 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 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.
Page 175 U. S. 119
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, 1 3 Wood. & Mon. 325, 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 the 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
41 U. S.
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 Cook,
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 from the
highest state court to 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,
Page 175 U. S. 120
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
76 U. S. 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
Biss. 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.
