Louisiana. Mandamus. Although no rule to show cause why a
mandamus should not issue to the District Judge of Louisiana had
been granted by the court; the district judge had agreed to appear,
as if a rule had been granted by this Court, and had been served
upon him; and copies of the papers on which the motion for a
mandamus was founded, had been served on the district judge and on
the parties in the suit in which the mandamus was to operate,
during the vacation. The district judge filed an answer, as if the
rule had been served on him, and appeared by counsel, waived the
formal rule on notice, and stated his readiness to show cause. By
the Court:
"Under such circumstances, there is no necessity for directing a
rule to be entered and notice to be given; all the purposes of the
rule are accomplished."
There had not been any rule taken out and served on the district
judge to show cause why a mandamus should not issue. Copies of the
papers on which the motion was founded, with notice that the same
would be made at this term, had been served on the district judge
and the parties in the suit pending before him, during the late
vacation. The district judge appeared by counsel, and waived any
notice of a rule to show cause, and offered to show cause
instanter. An objection having been suggested, whether,
even by consent on both sides, the rule and service thereof ought
to be dispensed with, some discussion took place on the subject
between the bench and the bar.
MR. JUSTICE BALDWIN was of opinion that in a cause of this sort,
the Court ought not to dispense with the regular course of
proceedings by the granting and service of a rule to show
cause.
MR. CHIEF JUSTICE MARSHALL said that the grant of a rule to show
cause and the service thereof is a matter in the discretion of the
Court.
The Court may, in its discretion, grant an alternative mandamus
if it deems it more conductive to public
Page 34 U. S. 572
justice and to prevent delays. Here, all the parties express
themselves ready to proceed in the cause. The district judge waives
any formal rule and notice, and wishes no delay; and states his
readiness now to show cause. Under such circumstances, all the
purposes of a rule to show cause and notice are accomplished, and
there is no necessity for directing such a rule and notice. The
Court, therefore, in my opinion, may properly proceed at once to
the hearing of the cause, for the purpose of ascertaining whether a
mandamus ought or ought not to be awarded.
The other judges concurred in the opinion of THE CHIEF JUSTICE,
and the Court directed the motion to come up on the next motion
day.
