without plea from the defendant, and without affording the attorney for the state the opportunity of contesting the position, assumed the fact that another indictment was pending in this court for the same offense, and that the pendency of it destroyed their jurisdiction. If they had gone further, and quashed the indictment for the want of jurisdiction, perhaps this might have been the exercise of such a judicial discretion as would have been beyond the reach of their power. But this was not done; the court abstained altogether from doing anything, and a failure of justice is likely to arise from their want of action. We unite in the opinion that this is a proper case for a mandamus.

III. Doctrine limiting rule to ab initio refusal of jurisdiction..

There are a few courts, including the Supreme Court of the United States, that have apparently taken the position that mandamus will not lie unless the inferior court refused to take jurisdiction ab initio.

United States.-Ex parte Des Moines & M. R. Co. (1881) 103 U. S. 794, 26 L. ed. 461; Ex parte Baltimore & O. R. Co. (1883) 108 U. S. 566, 27 L. ed. 812 (see also Rose's Notes to these cases); Re Key (1903) 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct. Rep. 624.

Illinois. People ex rel. Sayer v. Garnett (1889) 130 Ill. 340, 23 N. E. 331.

Louisiana.-State v. Morgan (1857) 12 La. Ann. 712; State ex rel. Halphen v. Hudspeth (1886) 38 La. Ann. 97; State ex rel. Liggins v. Judges First Circuit Ct. of Appeals (1895) 47 La. Ann. 1516, 18 So. 510; State ex rel. Grunnewald v. Judges of Ct. of Appeal (1901) 105 La. 217, 29 So. 816.

Massachusetts.-Crocker v. Justices of Superior Ct. (1911) 208 Mass. 162, 94 N. E. 369, 21 Ann. Cas. 1061.

Missouri.-State ex rel. Walnut Street R. Co. v. Neville (1892) 110 Mo. 345, 19 S. W. 491; State ex rel. South St. Joseph Town Co. v. Mosman (1905) 112 Mo. App. 540, 87 S. W. 75 (see comment on same case, infra).

Nevada.-State ex rel. Treadway v. Wright (1868) 4 Nev. 119 (see comment on same case, infra); Nevada

C. R. Co. v. District Ct. (1893) 21 Nev. 409, 32 Pac. 673. (But all these Nevada cases are now overruled. See discussion, infra.)

New York. Re McBride (1893) 72 Hun, 394, 25 N. Y. Supp. 431; Kelsey v. Church (1906) 112 App. Div. 408, 98 N. Y. Supp. 535.

North Dakota.-State ex rel. Atty. Gen. v. District Ct. (1904) 13 N. D. 211, 100 N. W. 248.

Pennsylvania.-Com. v. Judges of Common Pleas (1810) 3 Binn. 273. Utah.-State v. Booth (1899) 21

Utah, 88, 59 Pac. 553. England.-Ex parte Milner (1851) 15 Jur. 1037.

There appears to be some reason for the contention that, so far as the United States Supreme Court decisions go, the holdings may have been induced by statutes. In Ex parte Bradstreet (1833) 7 Pet. (U. S.) 647, 8 L. ed. 810, and in Chicago & A. R. Co. v. Wiswall (1875) 23 Wall. (U. S.) 507, 23 L. ed. 103, mandamus is said to be the proper remedy, because the judgment is not final in the sense that a writ of error is available. In Knickerbocker Ins. Co. v. Comstock (1873) 16 Wall (U. S.) 258, 21 L. ed. 493, where the circuit court had dismissed a writ of error on the ground that it lacked jurisdiction, and the aggrieved party had brought a writ of error in the Supreme Court, that court said: "Repeated decisions of this court have established the rule that this court has power to issue a mandamus, in the exercise of its appellate jurisdiction, and that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause. Marbury v. Madison (1803) 1 Cranch (U. S.) 175, 2 L. ed. 72; Kendall v. United States (1838) 12 Pet. (U. S.) 622, 9 L. ed. 1220. Power to issue the writ of mandamus to the circuit courts is exercised by this court, to compel the circuit court to proceed to a final judgment or decree in a cause, in order that this court may exercise the jurisdiction of review given by law; and, in the case of Ex parte Bradstreet (1833) 7 Pet. (U. S.) 647, 8 L. ed. 815, this court decided, Marshall, Ch. J., giving the

tice Marshall in Ex parte Bradstreet (1833) 7 Pet. (U. S.) 634, 8 L. ed. 810, and if the decision of the present case depended only on the general rule, the power of the court to issue the mandamus would be undoubted. But, in our opinion, the matter is governed by statute. This will be manifest by reference to previous legislation on the subject. The 5th section of the Act of March 3, 1875 (determining the jurisdiction of the circuit courts), provided that the order of the circuit court, dismissing or remanding a cause to the state court, should be reviewable by the Supreme Court on writ of error or appeal, as the case might be. 18 Stat. at L. 470, 472, chap. 137, Comp. Stat. § 1019, 5 Fed. Stat. Anno. 2d ed. p. 398. This act remained in force until the passage of the Act of March 3, 1887, by which it was superseded, and the writ of error or appeal upon orders to remand causes to the state courts was abrogated. The provision of the Act of 1887 is as follows: 'Whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.' 24 Stat. at L. 553, chap. 373. This statute was re-enacted August 13, 1888, for the purpose of correcting some mistakes in the enrolment (25 Stat. at L. 435, chap. 866, Comp. Stat. § 1012), but the above clause remained without change. In terms, it only abolishes appeals and writs of error, it is true, and does not mention writs of mandamus; and it is unquestionably a general rule that the abrogation of one remedy does not affect another. But in this case, we think it was the intention of Congress to make the judgment of the circuit court remanding a cause to the state court final and conclusive. The general object of the act is to contract the jurisIdiction of the Federal courts. The

abrogation of the writ of error and appeal would have had little effect in putting an end to the question of removal, if the writ of mandamus could still have been sued out in this court. It is true that the general supervisory power of this court over inferior jurisdictions is of great moment in a public point of view, and should not, upon light grounds, be deemed to be taken away in any case. Still, although the writ of mandamus is not mentioned in the section, yet the use of the words, 'such remand shall be immediately carried into execution,' in addition to the prohibition of appeal and writ of error, is strongly indicative of an intent to suppress further prolongation of the controversy, by whatever proc ess. We are, therefore, of opinion that the act has the effect of taking away the remedy by mandamus, as well as that of appeal and writ of error."

But apparently this doctrine does not apply in full force where the mandamus is sought to compel action by the Interstate Commerce Commission. In Interstate Commerce Commission v. United States (1912) 224 U. S. 474, 56 L. ed. 849, 32 Sup. Ct. Rep. 556, the court, in holding that the supreme court of the District of Columbia has power to issue a mandamus to compel the Interstate Commerce Commission to take jurisdiction of a petition that it had dismissed, after it erroneously. decided that it had no jurisdiction, said: "The general principle which controls the issue of a writ of mandamus is familiar. It can be issued to direct the performance of a ministerial act, but not to control discretion. It may be directed against a tribunal, or one who acts in a judicial capacity, to require it or him to proceed, the manner of doing so being left to his or its discretion. It is true there may be a jurisdiction to determine the possession of jurisdiction. Ex parte Harding (1911) 219 U. S. 363, 55 L. ed. 252, 37 L.R.A. (N.S.) 392, 31 Sup. Ct. Rep. 324. But the full doctrine of that case cannot be extended to administrative officers. The Interstate Commerce Commission is purely an administrative body. It is true it may exercise and must exercise quasi judi

cial duties, but its functions are defined, and, in the main, explicitly directed, by the act creating it. It may act of its own motion in certain instances; it may be petitioned to move by those having rights under the act. It may exercise judgment and discretion, and, it may be, cannot be controlled in either. But if it absolutely refuse to act, deny its power, from a misunderstanding of the law, it cannot be said to exercise discretion. Give it that latitude, and yet give it the power to nullify its most essential duties, and how would its nonaction be reviewed? The answer of the Commission is, by ‘a reversal by the tribunal of appeal.' And such a tribunal, it is intimated, is the United States commerce court. But the proposition is plainly without merit, even although it be conceded, for the sake of argument, that the commerce court is by law vested with the exclusive power to review any and every act of the Commission, taken in the exertion of the authority conferred upon it by statute; that is, to exclusively review, not only affirmative orders of the Commission granting relief, but also the action of that body in refusing to award relief on the ground that an application was not entitled to relief. This is so because the action of the Commission, refusing to entertain a petition on the ground that its subject-matter was not within the scope of the powers conferred upon it, would not be embraced within the hypothetical concessions thus made. A like view disposes of the cases relied upon in which it was decided that certain departmental orders were not susceptible of being reviewed by mandamus. We do not purpose to review the cases, as we consider them to be plainly inapposite to the subject in hand. In the case at bar the Commission refused to proceed at all, though the law required it to do so; and to do so as required-that is, to take jurisdiction, not in what manner to exercise it is the effect of the decree of the court of appeals, the order of the court being that a peremptory writ of mandamus be issued, directing the Commission to take jurisdiction of

said cause, and proceed therein as by law required.' In other words, to proceed to the merits of the controversy, at which point the Commission stopped because it was 'constrained to hold,' as it said, 'upon authority of the decision recently announced in Re Jurisdiction Over Rail & Water Carriers (1910) 19 Inters. Com. Rep. (Fed.) 81, that the Commission is without jurisdiction to make the order sought by complainant,' the steamship company."

In Re Pennsylvania Co. (1890) 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141, the court said: "It is true that after a case has proceeded to the filing of a declaration and a plea to the jurisdiction, or its equivalent, and a judgment is rendered in favor of the plea and a consequent dismissal of the action, this court has held that the plaintiff is confined to his remedy by writ of error, and cannot have a mandamus, which only lies, as a general rule, where there is no other adequate remedy. Ex parte Baltimore & O. R. Co. (1883) 108 U. S. 566, 27 L. ed. 812, 2 Sup. Ct. Rep. 876; Ex parte Des Moines & M. R. Co. (1881) 103 U. S. 794, 26 L. ed. 461. But it was expressly held in Chicago & A. R. Co. v. Wiswall (1875) 23 Wall. (U. S.) 507, 23 L. ed. 103, that a mandamus would lie to compel a circuit court to take jurisdiction of and proceed with a case which it had wrongfully remanded to the state court. The reason was that an order to remand was not a final judgment, and no writ of error would lie. This case is supported by the rule laid down by Chief Justice Marshall in Ex parte Bradstreet (1833) 7 Pet. (U. S.) 634, 8 L. ed. 810, and if the decision of the present case depended only on the general rule, the power of the court to issue the mandamus would be undoubted."

In People ex rel. Sayer v. Garnett (1889) 130 III. 340, 23 N. E. 331, supra, it was held that mandamus would not lie to compel the superior court to reinstate an appeal that it had dismissed, on the ground that the statute giving it jurisdiction was unconstitutional. The court said: "A mandamus will not be issued by a superior to an inferior court, for the purpose

of controlling the latter in the exercise of its judicial judgment or discretion. Where one of the appellate courts of this state dismisses an appeal to it from a circuit court for want of jurisdiction, it thereby judicially determines a question incident to the proceedings, and properly arising therein; in passing upon the question it acts in a judicial capacity, and, therefore, mandamus will not lie to compel the reinstating of the appeal." But in People ex rel. Barnes v. Chytraus (1907) 228 III. 194, 81 N. E. 844, it was held that the writ will lie to compel a court to grant an application for leave to prosecute as a poor person, where the court's refusal was not based upon the showing made, but upon the ground that the applicant had not complied with a rule of court imposing unlawful burdens upon her. And in Crocker v. Justices of Superior Ct. (1911) 208 Mass. 162, 94 N. E. 369, 21 Ann. Cas. 1061, supra, the court said: "The petitioners were indicted for a felony. Seasonably they presented motions, suggesting that because of local prejudice and other causes' they could not have an impartial trial in the county of Suffolk, and asking that the proceeding be removed to another county for trial. Thereafter, an order was entered by a judge of the superior court, which, as amended, was as follows: 'I refuse to hear the parties on the several motions of the defendants that the court order a trial of these indictments in some county other than the county of Suffolk, believing that I have no jurisdiction to entertain or to grant such motion.' This is a petition for a writ of mandamus to compel the superior court to entertain and decide the motions. The first question presented is whether mandamus lies in a case of this sort. It becomes necessary to determine the meaning of the indorsement made in the superior court upon the motions filed by the defendants there, who are the petitioners here. It is perhaps susceptible of two constructions; one that the court has considered the subject-matter, and ruled as matter of law that it has no jurisdiction of such motions; the oth

er that the court has abdicated its province and refused to exercise its judicial function, adding by way of parenthesis that its excuse is a belief that it has no jurisdiction in the premises. Ordinarily, we should be loath to adopt the latter construction. But the language appears to be strongly phrased with an evident intent to convey that thought, and an examination of the papers discloses that, as originally entered, an unequivocal ruling of law was made disposing of the motion. If that had stood as the final action of the superior court, the only remedy of the defendants would have been by exception or appeal, under Rev. Laws, chap. 219, §§ 32, 34, 35. But it did not so stand, and the action of that court was changed to a statement of declination even to hear the parties. We are constrained, therefore, to interpret the order as a refusal to act at all upon the motions." The writ was issued.

In State ex rel. South St. Joseph Town Co. v. Mosman (1905) 112 Mo. App. 540, 87 S. W. 75, it was held that mandamus would not lie to compel the circuit court to reinstate a cause that it had dismissed on appeal from a decision of a justice of the peace, the circuit court holding erroneously that it had no jurisdiction because the justice had exceeded his jurisdiction. While mandamus was refused on the ground that appeal was the proper remedy, the court also held that the circuit court had acted judicially in deciding that it had no jurisdiction. This feature of the decision is not in harmony with the decision of the supreme court of the state. See Missouri cases cited, supra.

In State ex rel. Treadway v. Wright (1868) 4 Nev. 119, the court apparently takes this position, although the appeal was dismissed upon the ground that the stamps required by statute had not been attached at the proper time, and nothing was said about the court's lack of jurisdiction. But the position was approved in Floral Springs Water Co. v. Rives (1880) 14 Nev. 431, supra, where the court had refused to proceed for supposed lack of jurisdiction, but apparently had not.