Mumuy and another
(Oircuit (J()urt, E. D. Mi88()uri.
ECUTION OF JUDGMENT.
Neither a United States circuit court, nor a judge thereof, has authority to interfere by injunction to prevent the execution of a judgment of a state court, upon the ground that it has been superseded by an appeal therefrom to the United States supreme court, nor to enjoin state officials or other officers from disregarding such a supersedeas.
In such cases, the application for. an injunction must be made to the United States supreme court, or a judge thereof.
In Equity... Chester H .. Crum, for complainanta. Leverett for defendants. ; MCCRARY, C. J. The judges. of the .circuit court powElr to grant writs of injunction only in cases where they might be granted by the circuit court. .lithe case is one in which an injunctiollI:night be' granted by the supr.eme court, then application must be made to that court, or to a judge thereof. Rev. St. § 719. The complainants claim to be the owners of a franchise known as the "Missouri State Lottery." The attorney general of Missouri reoently in!;tituteda proceeding by quo warranto against complainl1nts in the supreme. court of Missouri, alleging that said franchise ceased and expired on the first day of January, 1878, and praying judgment of ouster. Issue was joined, and upOn final hearing judgment of ouatel' waS rendered by the said supreme court of Missouri. The bill alleges in substance that the record of that case presented to the supreme court of Missouri for decision a federal que!3tion, to· wit: Whether, under certain statutes of Missouri, and certain contracts made thereunder, and by virtue of certain decisions of the supreme court of that state, there was a contract extending beyond the first day of January, 1878, the obligation of which would be impared by denying to complainants the right to carryon business as a lottery company after. that date. This federal question having been decided adversely to complainants, the bill avers that they sued out a writ of error to the supreme court of the United States, and filed a bond, which, being duly approved, operates as a supersedeas. The complainants' claim is that, having given a supersedeas bond, it is their right to continue their business as a lottery company, pend-
ing the decision of the case in th!3 supreme cogrt, the same Soaif no judgment of ouster had been rendered; and they aver that respondthey will interfere. with complauunts by proseents cuting, arresting, and seizing any of their,agents who may be in the prosecution of their lottery business, thus anticipating judgment of the supreme court of the United States upon the afore· said writ of error. If the threatened proceedings on the part of respondents should be enjoined at all, it is because, if periDitted, they would interfere with the power and right of the supreme court of the United States, by virtue of the writ of error, to take control.of, and deal with, the entire subject-matter of the litigation. Whether the supreme court has jurisdiction by virtue of the writ of error, and whether, if. so, the threatened proceedings would' interfere with its exercise, are· questions for the supreme court to decide, and cannot be determined by a judge of the circuit court. The complainants have set out in their bill very fully the substance of the proceedings in the quo warranto case,'a.nd alsothesteps taken in order to obtain a writ of error and and counsel have argued before me at great length the: question whether there was a federal question in the case, which involves, of course, the question whether the supreme court has']urisdictionthereof. It il),not only clear that this is a question which rpight be decided by the: supreme court, but also that it cannot be decided by any other court. And, since the decision of this question must and 'in large measure determine the question of the right of complil,i.ru1nts,t() the: injunction, I am clearly of opinion that the application must be addressed to the supreme court or to One of, the judges thereof. . That court is authorized to issue any writ which may be necessary for the exercise of its jurisdiction, and agl'eeableto the usages and ,principles of law. Rev. St. § 716. If the effect of the threatened proceedings' would be to interfere with the exercise of the jurismctioh ofthe supreme court in the quo,warranto case, or to depnive the .complainants of .the full benefit of their writ of error a.nd 8uperBedea, bond, then the that supreme court can enjoin them, and.a temporary purpose can be granted by a judge of that court. I know of no authority for the doctrine that, the QircQit court, or a the execution ·circuit judge, may interpose, by,. injunction, to, of the judgment of a state court,upQn .the ground that it hltE! been superseded by an appeal to the supreme, court, or,to enjoin state officials, or others, from disregarding sU(lh Buperfl"edeaB. In every
such case an injunction is in aid of the jurisdiction of the supreme court. This is, therefore, a case in which an injunction might be granted by the supreme court, or a judge thereof, and not a case for the consideration of a circuit court or a circuit judge.
UNITED STATES ex rel.DAY 'V. MAYOR, ETC., NEW ORLEANS.
(Oireuit Oourt,E. D. Louisiana.
SUPERSEDEAS-BoND REQUIRED-How IS THE AMOUNT OF, TO BE DETERMINED.
The amount of the bond to be required by a United States circuit court granting a s;'persedeas is to be determined by it, in its sound discretion, under the laws and rules of the supreme court. 2.
In the cases of mandamus against the city of New Orleans to direct the levy of taxation, looking to the payment of a specific sum of money, wherein the matter in dispute exceeds the sum of $5,000, exclusive of costs, and wherein writs of error are applied for and a supersedeas asked, the bonds required were fixed at $150, plus 10 per cent. of the amount of the judgment or judgments sought to be stayed. S. RULE 29 OF THE GENERAL RULES OF THE UNITED STATES SUPREME COUR'fMUNICIPAL OFFICERS,
Where the defendants in the judgment are municipal officers, having little or no interest pecuniarily in the event of the suit, and where the judgments sought to be stayed are not for money or property, but to direct the performance of a ministerial act, rule 29 of the general rules of the United States supreme court has no applicll.tion, 4. APPEAL FROM ANY OTHER THAN A MONEY JUDGMENT-SECTION 2, RULE 23,
GENERAL RULES OF THE UNITED STATES SUPREME COURT-DAMAGES MAY RE AWARDED,
QUlJ3re, as to whether, under section 2 of rule 23, general rules of the United States supreme court, which reads, "In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of 10 per cent., in addition to interest, shall be awarded upon the amount of the judgment,"any damages mAy be awarded by the supreme court in any case where there is no direct appeal from a money judgment.
PARDEE, C. 'J. There is no doubt of the right to the writ of error in those cases where the amount of the judgment to be paid by taxation exceeds $5,000, exclusive of costs. Counsel concede the right to a supersedeas, and only differ as to the amount of the bond to be required. The amount of the bond is to be determined by the court allowing the supersedeas, in its sound discretion, under the laws and the rules of the supreme court. Rule 29 of the general rules of the
UNITED STATES V. MAYOR, ETC., OF CITY OF NEW ORLEANS.
Buprem,e court seems to be the only rule attemrAing to guide tLe court in fixing the amount of the hondo This rule provides for the following conditions:
(1) Where the judgment or decree is for the recovery of money not otherwise' seemed; (2) where the property in controversy necessarily foHows tllt' event of the suit; (3) where the property is in the custody of the marshal under process; (4) where the proceells, or a bond for the, value thereof, is· in the control or cllstody of the court.
The bases under consideration come under none of these conditions. The judgments sought to be Rtayed are not for money or property, but to direct the performance of a minist.erial act, to-wit: the levy of taxation, looking to the payment of a specific sum of money. The defendants in the judgments are municipal officers, having little or no pecuniary interest in the matter. They. have a right to their writ of error, and for a supersedeas to require of thema bond for the whole amount of the original judgment, including "first damages for delay," and costs and interest on the appeal, would be a great hardship,'which this court will not exact unless the law and duty clearly require it. The object of the bond is to secure the defendant in error against damages from delay, and costs in prosecuting the writ. So, .under rule 29, when the property is supposed to be secure,. as where it necessarily follows the event of the suit, or is in the custody of the court, a bond is only to be required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit and just damages for delay, and costs and interest on the appeal. From the terms oUhe judgments sought to be stayed it would seem that the amount of the judgments, costs accrued, and interest to accrue, ale seMred by all the taxable no further property in the city of New Orleans, and would security. This view, 1ll a similar case, appears to have been taken by Mr. Justice Miller and Judge Treat, in the eighth circuit, eastern district, of Missouri. See case of Fourth Nat. Bank v. F/\mklin County, 10 Cent. Law J. 193. If this be the case, only the costs incurred in the prosecution of the writ, and just damages for delay, need to be secured by the supersedeas bond. Indeed, so far as costs are concerned, the plaintiff in error will have to pay for his record, and give other stipulation for costs in the supreme court. See General Rules, No. 10. The general damages for the delay in the payment of money is the interest for and secured with allowed bv law, and this seems to be v.8,no.3- 8