American Union Telegraph Co. v. Bell Telephone Co.

¶5*699Treat, J.

¶6To have the jurisdictional question tested, the order to show cause issued in this case; and now, on the motion to discharge said order, the court is to determine whether, by force of the act of 1875, the powers not theretofore existing as to an original proceeding for mandamus have-been granted. All the decisions prior to that act, it is conceded, denied such jurisdiction in the United States circuit courts; hut it is contended that the act of 1875 not only enlarged the jurisdiction as to parties, but also as to the subject-matter and forms or modes of proceeding. The language invoked is that said courts “shall have original cognizance, etc., of all suits of a civil nature at common law or in equity."

¶7There still remain on the statute book sections 629 and 716, which are substantially a reproduction of sections 11 and 14 of the judiciary act, (1789,) unless their restrictions are repealed by the act of 1875. The latter enlarged the jurisdiction as to parties, hut used the same language as to the nature of the suits which had prevailed since 1789, viz.: “All suits of a civil nature, at common law or in equity,” under which the United States supreme court has uniformly held that, taken in connection with section 14 of the original act — now 716 of the Bevised Statutes — -the power claimed did not exist. It is held, therefore, that the United States circuit courts have not, under the statutes of 1875, any other jurisdiction in mandamus proceedings than theretofore existed. The same reasons that caused congress originally to withhold the authority exist more forcibly to-day, growing out of the large multiplication of offices and corporations.

¶8The motion to discharge the order is granted.

¶9If the parties wish to further test the question a demurrer to the jurisdiction may be interposed and sustained.