[399]

[390]

[400]

with the proceedings had under said warrant, |
that there should also be entered therein the
names of the witnesses present and examined
and their fees; the name of the guard, if any,
and his fees; and also the marshal's and deputy
marshal's fees, together with the milage and
expenses allowed by law; and the said order
was continued of force.

III. From the said January 16, 1882, to No-
vember 22, 1883, petitioner, as such commis-
sioner, issued warrants in three hundred and
seventy-six cases, in three hundred and twenty-
eight of which issue was joined and testimony
taken, and in forty-eight of which issue was not
joined, the defendant was discharged, and no
testimony taken; and he duly made his docket
entries in each and in all of said cases as re-
quired by said order.

IV. His accounts for fees for keeping said docket were duly verified by oath and presented to the said court, in presence of the district attorney, and approved by the court; and an order approving the same as being in accordance to law and just, duly entered upon the records of the said court. In said accounts, as approved by the court, he was allowed a fee of $3 in each case where issue was joined and testimony taken, and $1 where issue was not joined and the defendant was discharged.

V. His accounts therefor were duly presented for payment to the accounting officers of the Treasury, together with the order of court approving the same, and payment thereof was refused by them.

Mr. John Goode, Solicitor-Gen., for appei-
lant.

Messrs. Charles C. Lancaster and
Charles E. Mayer, for appellee.

Mr. Justice Matthews delivered the opin-
ion of the court:

It is provided in section 847 R. S. regulating the fees of commissioners:

"For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services."

Section 828 R. S. provides that the clerk be allowed:

"For making dockets and indexes, taxing costs, and all other services on the trial or argument of a cause where issue is joined and testimony given, $3."

And, "For making dockets and indexes, taxing costs and and other services in a cause which is dismissed or discontinued, or where judgment or decree is made without issue, $1."

This view is met by the court of claims in the following extract from its opinion: "The phrase like services' does not neces sarily mean identical with; for by such a construction the compensation allowed to commissioner for any other service' would be defeated because of the subject matter of the duties of the commissioner and the clerk being somewhat different; but the statute must receive a reasonable construction, and where the service of the clerk bears a substantial resemblance to the duty performed by the commissioner, then, under section 847, the commissioner would be entitled to the compensation allowed by law to the clerk, it being in legal substance a like service.'"

The compensation of fifteen cents for each folio, supposed to embrace this service, is given 'for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record certificate, return or report." Clearly, this service [ has no likeness to that of keeping a docket; while the keeping of a docket by the commissioner is a like service to the keeping of a docket by the clerk, although the docket entries to be made by each may differ.

The judgment of the Court of Claims is af firmed. True copy. Test:

James H. McKenney, Clerk, Sup. Ct. U, S.

Ex Parte:

In the Matter of the PETITION of L. D.
BROWN AND LEANDER HOLMES, Pe
titioners.

(See S. C. Reporter's ed. 401, 402.)
Mandamus-jurisdiction.

1. Mandamus lies to compel a court to take jurisdiction in a proper case, but not to control its discretion.

2. A judgment of an inferior court, dismissing a case for want of le prosecution, can only be reviewed by this court by writ of error or appeal. [Original.]

Submitted Jan. 13, 1886. Decided Jan. 18, 1886.

ON motion for leave to file petition for a writ

of mandamus.

On July 10, 1884, the petitioners commenced an action of ejectment against one William Rank, in the District Court of the Second Judicial District of Washington Territory, to recover sixty-four acres of land. The court hav

It was not disputed by the accounting officers of the Treasury Department nor by the Solicitor-ing overruled their demurrer to the defendant's General in argument, that the commissioner was answer, the plaintiffs appealed to the supreme legally bound under the order of the circuit court court of the Territory. That court sustained a to render the services charged for in keeping the motion to dismiss the appeal, upon the ground dockets required, nor that he is entitled to com- that the action was at law and could only be pensation therefor. But it is insisted that he examined on writ of error upon a proper asought not to be allowed the compensation de-signment of errors under the rules of the court. manded, because the services rendered in keeping his docket are not in all particulars like services to those rendered by clerks in keeping dockets, and that, consequently, his compensation is fully covered by paragraph 8 of section 828, which allows for making entries "for each folio, fifteen cents."

The petitioners now pray that a peremptory mandamus may issue, directed to the Supreme Court of Washington Territory and to the Justices thereof, commanding them to set aside the order dismissing said appeal and to reinstate said appeal and hear and decide said cause on its merits.

1885. UNION P. R. Co. v. UNITED STATES. UNITED STATES V. LAMAR. 402-404; 423-427

Mr. Leander Holmes, for petitioners, in | support of motion.

Mr. Chief Justice Waite delivered the opinion of the court:

This motion is denied. According to the petition, the court entertained jurisdiction of the cause, but dismissed it for want of due prosecution; that is to say, because errors had not been assigned in accordance with the rules of practice applicable to the form of the action. This is a judgment which can only be reviewed by writ of error or appeal, as the case may be. Mandamus lies to compel a court to take jurisdiction in a proper case, but not to control its discretion while acting within its jurisdiction. | This rule is elementary. Ex parte Morgan, ante 135, and cases cited.

[403]

[404]

(See S. C. Reporter's ed. 423-427.) Mandamus-control of public officers in matters of discretion.

1. In matters which require the exercise of judg ment and consideration by an executive officer of Submitted Jan. 11, 1886. Decided Jan. 18, 1886. discretion, no rule for a mandamus to control his the government, or which are dependent upon his action will issue.

[423]

[423]

[424]

[425]

a dwelling house thereon for the purpose of
obtaining a title thereto; that the land is not min-
eral, has not been reserved by the Government
and has never been surveyed; that there are no
improvements on it except such as have been
placed by him, and that the General Govern-
inent has constructed certain embankments and
walls, so that the island is now fast and an-
chored, and not liable to be changed by the
action of the river.

Hle fur or states that in September, 1883,
for the purpose of obtaining a survey of the
island, in order that he might avail himself of
the rights he had acquired as such settler he
made application, in writing, according to the
rules of the Interior Department, to the Com-
missioner of the General Land-Office for such
survey, stating that the island had never been
surveyed by the Government, and that he was
desirous that it should be brought into the mar-
ket according to the laws of Congress and the
regulations of the General Land-Office relating
to the disposal of lands embraced in fragment-

ary surveys.

the previous decision being sought on the alleged ground of error in holding the island to be a moving mass of alluvial deposits. The secretary declined to review the decision, and further held that it would be improper to order a survey, inasmuch as the War Department, under appropriations for the improvement of the river, was operating upon the island, and it was unknown to what extent or for what purpose the Government might require the same in connection with the great public work about which it was engaged.

Without treating the matters set forth in the opinions of the secretaries as established facts, enough appears on the face of the petition to show that a survey could not properly have been ordered, and that there was no error in refusing a rule for a mandamus.

It appears that, under Acts of Congress, an island situated some distance above the site of the present island was surveyed and set apart to the City of St. Louis. It is contended that the present island represents the one surveyed; it having been carried down the river by the He further states that upon the hearing of action of the current. It certainly would be a the application it was claimed by the City of matter of doubt, requiring for its solution grave St. Louis that the island was formerly known consideration, how far the title of the city to as the Quarantine Island, and had been sur- the island is affected by this movement. If any veyed and set apart to the city under the pro- doubt may rightfully exist in the mind of the visions of Acts of Congress of June 13, 1812, secretary on the subject, an answer is furnished and of May 26, 1824, relating to school lands; to the application for a mandamus directing but that in fact the survey made was of an him to order a survey to facilitate the acquiisland above the place now occupied by Arsen-sition of that title by others. al Island, and that no part of the space em- It also appears by the petition and the papers braced by that survey is now covered by the to which it refers, and the legislation of Conpresent island; and in support of this averment gress, that the Government is engaged in he states that the report made to the Secretary works, connected with the improvement of the of the Interior by the engineer of the War De- river, to stop the drifting character of the island partment, in charge of the government works and give it stability and permanence. Expendin the vicinity, shows that the island is not emitures largely exceeding any possible return braced within that survey, and is the property, from the sale of the island would seem to indinot of the City of St. Louis, but of the United cate that the Government designs to appropriStates. ate it to special uses, and not to open it to pre The Commissioner of the General Land-Of-emption and settlement. In the absence of posifice rejected the application, but transmitted the papers to the Secretary of the Interior for his examination and instructions. The immediate predecessor of the present secretary concurred with the commission. Upon the defendant's accession to office the application was renewed and rejected. The present petition was then laid before the Supreme Court of the District, which refused the rule upon him. To reverse its judgment and obtain the rule prayed, the case was brought here.

The former secretary in his opinion adverted to the drifting character of the island, it being alleged to have changed 1,700 feet from its position when surveyed; to the works of the Government to stay its drifting and give it permanence; and to the title asserted to it by the City of St. Louis. He said that, even during the time of a survey, what would be a monument and a boundary to-day might require a change to-morrow, and that, therefore, as long as the same causes continued to operate and make the island a mere moving mass of alluvial deposits, it was useless to establish corners and monuments, which would be subject to immediate obliteration.

The application to the present Secretary was accompanied by evidence tending to show that the island was fast and anchored; a review of

tive enactment the secretary might, therefore, properly withhold any action tending to encourage a settlement there. This consideration alone is sufficient answer to any rule for a mandamus.

It is settled by many decisions of this court that in matters which require judgment and consideration to be exercised by an executive officer of the Government, or which are dependent upon his discretion, no rule for a mandamus to control his action will issue. It is only for ministerial acts, in the performance of which no exercise of judgment or discretion is required, that the rule will be granted. Decatur v. Paulding, 14 Pet. 499 [39 U. S. bk. 10, L. ed. 560]; United States v. Guthrie, 17 How. 284 [58 U. S. bk. 15, L. ed. 102]; U. S. v. Comr. 5 Wall. 563 [72 U S. bk. 18, L. ed. 692]; Litchfield v. Register and Receiver, 9 Wall. 577 [76 U S. bk. 19, L. ed. 682].

Within this principle there can be no question as to the correctness of the action of the Supreme Court of the District. Its judgment is there fore affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court. U. &

JOHN F. FLETCHER AND WILLIAM

WESENBERG, Plffs. in Err.,

0.

HAMLET, BLISS & ELLIOT.

(See 8. C. Reporter's ed. 408-410.)

District Court of the Parish of Orleans, on the
17th of March, 1883, against the commercial
firm of Fletcher, Wesenberg & Co., doing
business in New Orleans, Louisiana, and com-
posed of John F. Fletcher, Thomas O'Conner,
William Wesenberg and George M. Fletcher.
Service of citation was made on the firm and

Practice-construction of rule as to removal of William Wesenberg through Wesenberg in

causes.

L Cases advanced under section 8 of Rule 32 are
to be submitted on printed briefs or arguments af-
ter service of notice and brief or argument.
A joint cause of action cannot be removed by
the defendants, unless all join and all are citizens
of different States from the plaintiffs. The loss by
one of his right of removal affects all.
& A suit in a State Court of Louisiana, begun by
service of process on a firm through one of its
members, is not so changed in character as to make
a new suit by the subsequent service of process
en another member of the firm.
[No. 1157.]
Subvitted Dec. 1, 1885. Decided Jan. 18, 1886.

ERROR to the Circuit Court of the United
States for the Eastern District of Louisiana.
Motion by defendants in error to dismiss or

affirm.

The history and facts of the case appear in the opinion of the court.

Mr. B. F. Forman, for defendants in error, support of motion:

The application to remove was not made at the first term at which the cause could have bec tried.

Babbitt v. Clark,103 U. S. 606 (Bk. 26, L. ed. Pullman Palace Car Co. v. Speck, and Gregory v. Hartley, 113 U. S. 87, 742 (Bk. 28, Led. 926, 1150).

There can be no removal after a hearing on

demurrer.

Aley v. Nott, 111 U. S. 472 and Scharf v.
Lery, 112 U. S. 711 (Bk. 28, L. ed. 491, 825.)
All of the defendants must join in the re-
moval and remove the whole suit.
Chambers v. Holland, 11 Fed. Rep. 209; Bar-
Latham and Blake v. McKim, 103 U. S.
3,336 (Bk. 26, L. ed. 514, 563); Girardey v.
More, 3 Woods, 402.

The right of removal is given to plaintiffs or defendants collectively.

Lille & N. R. R. Co. v. Ide, and Pirie 1. Tredt, (ante, 63, 331).

Mr. Edgar H. Farrar and Ernest B. Krattschnitt, for plaintiffs in error, contra.

Mr. Chief Justice Waite delivered the opin

it of the court:

person, April 6, 1883. This was good service
on the firm, and according to the laws of
Louisiana a judgment in the action would bind
Wesenberg personally, and the assets of the
firm and of the other members of the firm in
Louisiana. On the 6th of April Wesenberg
appeared and filed exceptions to the petition on
his own behalf and on behalf of the firm.
These exceptions, which involved the merits of
the case, were sustained in the district court
April 17, 1883, but on appeal to the supreme
court the judgment of the district court was
reversed, and the cause remanded for further
proceedings. Wesenberg then filed an answer
for himself and for the firm, May 22, 1884.
On the 4th of June, 1884, process was issued
The effect
and served on John F. Fletcher.
of this was to bring Fletcher into the suit so as
to bind him personally by a judgment in the
action as well as his property in Louisiana. On
the 17th of June Fletcher filed exceptions indi-
vidually and on behalf of the firm. These ex-
ceptions were referred to the merits November
28, 1884, and Fletcher then filed his answer.
The case was set down for trial December 4,
1884, but not being reached was ordered to be
continued until the next jury term.

A term of the court began on the first Mon-
day in November, 1884, and it continued until
the third Monday in July, 1885. For conven-
ience, different weeks in the term were set apart
for jury trials. These weeks, occurring at in-
tervals during the term, were often referred to
as jury terms.

Ön the 5th of February, 1885, Wesenberg
and John F. Fletcher joined in a petition for
the removal of the suit to the Circuit Court of
the United States for the Eastern District of
Louisiana, on the ground that they were citizens
of Tennessee and the plaintiffs citizens of Ala-
bama, and that the suit involved a controversy
wholly between citizens of different States.
When the case was entered in the circuit court

it was remanded. To reverse that order this
writ of error was brought.

It is conceded that the suit was not removable when the petition for removal was filed, unless the service of process on Fletcher on the 4th of This is a writ of error brought under section June so changed the character of the litigation the Act of March 3, 1875, 18 Stat. at L. as to make it substantially a new suit begun 47 chap. 137, for the review of an order of that day. In our opinion such was not the efrcuit court remanding a case which had fect of the new process. The suit was begun removed from a state court. It has been when process was served on Wesenberg and the abced under Rule 32, and is now for hear- firm. If judgment had been rendered against 12 on its merits. In submitting the case the the defendants at any time after that it could Gedendants in error treat the rule as though it have been enforced against Wesenberg personred a motion to dismiss or affirm. Such ally and against all the property of the firm ct the proper practice. Cases advanced and of the individual partners in Louisiana. der section 3 of Rule 32 are to be submitted The cause of action is joint. There is no sepmotions to dismiss under Rule 6; that is to arable controversy in the case. There can be on printed briefs or arguments after ser- no removal by the defendants unless they all of notice and brief or argument, as re-join and all are citizens of different States from 7-7d by section 4, Rule 6.

fars are these: Hamlet, Bliss & Elliot, 2 of Alabama, brought suit in the Civil

the plaintiffs. Confessedly Wesenberg lost his
right to a removal by failing to make the ap
plication in time, and as Fletcher cannot take

[410]

(404)

(404]

the case from the state court unless Wesenberg | the lots formerly numbered 5, 6 and 7), in square
joins with him, it follows that he is subjected 376 in the City of Washington, from a cloud
to Wesenberg's disability.
created by the assessment and sale thereof for
taxes amounting, with interest, to more than
$5,000.

The order to remand is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

Submitted Dec. 21, 1885. Decided Jan. 18, 1886.

APPEAL from the Supreme Court of the

District of Columbia.

The history and facts of the case appear in
the opinion of the court.

Mr. M. F. Morris, for appellant:
The property in question was church prop
erty, such as was intended to be exempted, and
was in fact exempted from taxation by the Act
of June 17, 1870. Until 1881 it was necessarily
used for church purposes, and could not legal-
ly have been used for anything else; and until
1874 the municipality acquiesced in the pro-
priety of that use.

The case was heard upon the bill, answer, a general replication, and the deposition of the pas tor of St. Patrick's Church, from which the facts appeared to be as follows:

The lots in question front south on F Street about 170 feet, and have a depth varying from about 93 feet to about 114 feet. They were conveyed by Anthony Caffray in 1804 to the Roman Catholic Bishop of Baltimore in fee "for the use of the Roman Catholic congrega tion worshiping in the place called St. Patrick's Church in the City of Washington;" and thenceforward until 1870 were occupied by the old St Patrick's Church. During that period the church enclosure included about one half of square 376, bounded south by F Street, west by Tenth Street, and north by G Street. In 1870 the old church building was found to be unsafe, and in 1872 it was taken down. Since 1870 and pending the completion of a new church, now in process of erection, the congre gation has worshiped in Carroll Hall on G arated from the lots in question by a thirty foot Štreet, within the same half square, and seppassage way. The new church fronts on Tenth

Street, with a strip of open ground about thirty-five feet wide on its south side and in the rear for light and ventilation, all to the north of the lots in question. The reason for so middle of the inclosure, was to enable a revenue placing the church, instead of putting it in the to be derived from the sale or lease of these lots to pay off the church debt incurred in building, and it was not necessary for the enjoyment of the church that these lots should remain vacant. In February, 1881, the plaintiff obtained a decree in equity, authorizing him to sell or otherParker v. Redfield, 10 Conn. 491; New Haven wise dispose of these lots, and to apply the v. Sheffield, 30 Conn. 160; Byington v. Wood, 12 building; and about that time he made leases proceeds to the completion of the new church Ia. 17; Hoboken v. Bergen, 43 N. J. L. 146; Mul- thereof for twenty-five years to private persons. roy v. Churchman, 52 Ia. 238; Appeal Tax Court From 1804 until June 30, 1875, no taxes were v. St. Peters, 50 Md. 321; Mass. Hospital v. Som-assessed on these lots. Afterwards until June merville, 101 Mass. 319.

An assessment once made cannot be increased without some notice to the owner of the prop

erty.

Cooley, Taxn. 541, 547; Cleghorn v. Postle waite, 43 Ill. 428; Darling v. Gunn, 50 Ill. 424. A parity of reasoning requires that property exempted from taxation shall not be assessed for taxes without some notice to the owner.

Mr. A. G. Riddle, for appellee.

Mr. Justice Gray delivered the opinion of

the court:

This is an appeal from a decree dismissing a bill in equity by the Roman Catholic Arch bishop of the Diocese of Baltimore, of which the District of Columbia is a part, to clear the title of lots numbered 36 to 46 inclusive (being

erty.

NOTE.-Taxation-exemption from, of church prop Compare St. Mary's Church v. Tripp, 14 R. L., 307; Erie Co. Comrs. v. Bishop, 13 Phila., 509; Enaut v. McGuire, 36 La. Ann., 804; Y. M. C. A. v. Donohugh, 13 Phila., 12; People v. Brooklyn Assessors, 27 Hun, 559; Presbyterian Theo. Sem. v. People, lul Ill., 578; Fort Des Moines Lodge v. Polk County, 56 Ia.. 34.

30, 1880, they were annually assessed for taxes
taxes since that time have been paid.
and sold for nonpayment thereof. The annual

the taxes assessed upon the lots on F Street for
The only matter in contest is the validity of
the five years between June 30, 1875, and June
30, 1880, under the annual Acts of Congress of
March 3, 1875, chap. 162, and July 12, 1876,
chap. 180, and the permanent Act of March 3,
1877, chap. 117, authorizing the levy of taxes
trict of Columbia, the material provisions of
for the support of the government of the Dis-

which are as follows:

The eighth section of each of these statutes exempts from taxation houses for the reformstion of offenders, almshouses, buildings devoted to art or belonging to institutions of purely public charity, church buildings, and grounds actually occupied by such buildings, houses to improve the condition of seamen or sol diers, fre public library taildings, and ceme teres.

The Act & 1875 adds: "The lands or grounds appurtenant to any said house or building, so far as reasonably needed and actually used for