deli vered the opinion of the court.
Attеmpt was made in the first place to prosecute the suit in the name of the mate for himself and as assignee of the crew, but the court.before entering the decree suggested an amendment, and the crew were admitted as co-libellants, which will render it unnecessary to make any further reference to that feature of the pleadings.
Proceedings in rent were instituted in the Distriсt Court-against the bark Elwine Krepline, by the mate,’for himself and in behalf of the crew of the bark, on the twenty-fourth of August, 1870, in a case of subtraction of wages civil and maritime, add they allege in the libel, as amended",-,that the bark is a Prussian vessel, and that they are Prussian subjects, and that , they were hired' by the master and legally shipped.on board the bark for a specified term оf service; and that they continued well and truly to perform the duties they were shipped to fulfil, and that they were obedient to the lawful commands of the master, until they were discharged. They also set forth the, date when they were shipped, the length of time they had served, the wages they were to receive, and the amount due and unpaid tó them respectively for their services, and aver that the owners of the bark refuse to pay the amount.
Process was issued and served by the seizure of the bark, and the, master appeared, as claimant, and filed an answer. He admits that the appellants shipped on board the bark at the place and in the capacities and for the wages alleged in the libel, but he avеrs that they signed the, regulations, and directions of the shipping law a shipping articles and bound themselves by the rulesnd rules of navigation'of the country to which the bark belonged, and he denies that they well and truly performed their duties, or that they were
Apart from the merits he also set up the following defences :
1. That the court had no jurisdiсtion of the matter contained in the libel, because the bark was a Prussian vessel, owned by Prussian citizens, and because the libellants were Prussian subjects belonging to the crew of the vessel, and were also citizens of that kingdom.
Support to that defence is derived from'the tenth article of our treaty with that government, which provides that consuls, vice-consuls, and commercial agents of the respective countries, in the ports of the other, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between .the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of'the local authorities, unless the сonduct of the crews, or of the captain, should disturb the order or tranquillity of the country, or the consuls, vice-consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect. *
He set up that provision of the treaty, and prayed that he might have the same advantage of it as if the same was separately and formally pleaded to the libel.
2. That the libellants in signing the shipping articles bound themselves, under the penalty of a forfeiture of wages, not to sue or bring any action for any cause, against the vessel, or the master, or owners thereof, in any court or tribunal except in those of Prussia.
Testimony was taken in the District Court, and the District Court entered a decree in favor of the libellants for the amount due them for their wages, and referred thе cause to a commissioner to ascertain and report the amount. Subsequently he reported that the amount due to the libellants was seven hundred and forty-three dollars and forty-one cents. Exceptions were filed by the claimant, and the District Court upon further hearing reduced the amount to seven hundred and twelve dollars and thirty-two cents, and entered a final decree for.that amount, with costs of suit. Thereupon the claimant appealed to the Circuit Court, and the record shows that the appeal was perfected, and that the. cause was duly eutered in that court.
On the fifth of the last- month the petition under consideration was filed in this court in behalf of the appellees in that suit, in which they represented that the cause appealed was fully argued before the Circuit Court on the same pleadings and proofs as those exhibited in the District Court, and that the Circuit judge reversed the decree of the District Court and dismissed the libel for want of jurisdiction in the District Court to hear and determine the controversy; that the Circuit judge declined to entertain the cause or to consider, the same on the merits, and that no final decree on the appeal has been entered in the Circuit Court or signed.by the Circuit judge.
His refusal to entertain jurisdiction and to hear and de
(1.) Because the treaty stipulation, if so construed, is unconstitutional and void.
(2.) Because that article of the treaty applies only to disputes between the masters and crews of vessels, and has no reference to suits in rem against the vessel.
(3.) Because the record in this case shows that the Prussian authorities refused to entertain jurisdiction of the controversy.
(4.) Because the treaty is with Prussia, and it appears that her government has-no Consul, vice-consul, or commercial agent at that port.
(5.) Because that the consul who acted in the case requested the District Court to take jurisdiction of the matter in difference.
Hearing was had on the day the petition was presented, and this court granted a rule requiring the Circuit judge to show cause on the day therein named why a peremptory writ of mandamus should not issue to him directing him to hear the appeal of the petitioners and decide the same on the merits. Due servicе of that rule was made, and the case now comes before the court upon the return of the judge to that rule. He returns, among other things not necessary tq be reproduced, as follows: That the cause.of the libellants proceeded to a. decree in their favor in the District Court; that an appeal from that decree was taken in due form to thе Circuit Court for that district; that the Circuit Court did not refuse to entertain the appeal nor did the Circuit Court refuse to decide .the case on the appeal nor hold or decide that the Circuit Court had no jurisdiction to hear or decide the same, as required by the proofs or by-the law. On the contrary, the Circuit Court did entertain the appeal,
Power to issue writs of mandamus to any courts appointed under the authority of the United States was given to this court by the thirteenth section of the Judiciary Act, in cases warranted by the principles and usages of law. * When passed, the section also empowered the court to issue such writs, subject to the same conditions, to persons holding office under the United States, but this court, very, early, decided that the latter provision was unconstitutional and void, as it assumed to enlarge the original jurisdiction of the court, which is defined by the Constitution. †
Applications for a mandamus to a subordinate court are warranted by the principles and usages of law in cases where the subordinate court, having jurisdiction of a case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter u decree in the case, but the principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what, judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error' or appeal, as the only office of the writ when issued to a subordinate court is to direct the performance of a ministerial act or to command the court to act in a case where the court has jurisdiction and refuses to act, but the
Evidently the District judge was inclined to adopt the proposition, advanced by the libellants, that the suit for wages, as it was prоsecuted by a libel in rem, was not within the treaty stipulation, nor a controversy within the jurisdiction of the consul, but he did not place his decision upon that ground. He did, however, rule that the treaty did not have the effect to change the jurisdiction of the courts, except to require them to decline to hear matters in difference between the masters and crews of vеssels in all cases where the consul had acted or perhaps was ready to act as judge or arbitrator in respect to’ such differences. Beyond doubt he assumed that to be the true construction of the treaty, and having settled that matter he proceeded to inquire whether the consul had adjudicated the pending controversy, of whether the evidence showed that he was ready to do so, and having answered those inquiries in the negative he then proceeded to examine the pleadings and proofs, and came to the conclusion in the case which is expressed in the decree from which the appeal was taken to the Circuit Court.
All of those matters were again fully argued in the Circuit Court, and the Circuit judge decided to reverse the decree of the District Court upon the following grounds: (1.) That
Such questions were undoubtedly raised in the pleadings, and it is equally certain that they were decided by the District Court in favor of the libellants. Raised as they were by the pleadings, it cannot be successfully denied that the same questions were also presented in the Circuit Court, and in view of the return it must be conceded that they were decided in the latter court in favor of the respondent. Support to that proposition is also found in the opinion of the. Circuit judge, and in the order which he made in the case. Suffice it, however, to say, it so appears in the return before the court, and this court is of the opinion that the return, in the existing state of the proceedings, is conсlusive.
Confessedly the petitioners are without remedy by appeal or writ of error, as the sum or value in controversy is less than the amount required to give that right, and it is insisted that they ought on that aceouut to have the remedy sought by their petition. Mandamus will not lie, it is true, where the party may ha,ve an appeal or writ of error, but it is equally true that it will not lie in many other cases where the party is without remedy by appeal or writ of error. Such remedies are not given save in patent and revenue cases, except when the sum- or' value exceeds two thousand dollars, but the writ of mandamus will not lie in any case to a subordinate court unless it appears that the court of which complaint is made refused to act in' respect to a matter within the jurisdiction of the court and where it is the duty of the court to act in the premises.
Admiralty courts, it is said, will not take jurisdiction in such a casé except where it is manifestly necessary to do so to prevent a failure of justice, but the better opinion is that, independent of treaty stipulation, there is no constitutional
Superior tribunals may by mandamus command an inferior court to perform a legal duty where there is no other remedy, and the rule applies to judicial as well as to -ministerial acts, but it does not apply at all to a judicial'act to correct an error, as .where the act has been erroneously performed. If the duty is unperformed and it be judicial in its character the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done, or if it be ministerial, the mandamus will direct the specific act to be performed. †
Dower is given to this court by the Judiciary Act, under a writ of error, or appeal, to, affirm or reverse the judgment or decree of the Circuit Court, and in certain'eases to render such judgment or decree as the Circuit Court should have rendered or passed, but no such power is given under a writ of maudamus, nor is it competent for the superior tribunal, undеr such a writ, to re-examine the judgment or decree of the subordinate court. Such a writ cannot perform the functions of an appeal or writ of error,, as the superior court will not, in any case, direct the judge of the subordinate .court what judgment or decree to enter in the case, as the writ does not vest in the superior court any power to give
Viewed in the light of the return, the court is of the opinion that the rule must be discharged and the
Petition denied.
Notes
8 Stat. at Large, 882.
1 Stat. at Large, 81.
Marbury
v.
Madison,
Insurance Co.
v.
Wilson,
Angell & Ames on Corporations, 9th ed., § 727; Cagger v. Supervisors, 2 Abbott’s Practice, N. S. 78.
Tapping on Mandamus, 347; Moses on Mandamus, 210; Com. Bank
v.
Commissioners,
Springfield
v.
Harnden, 10 Pickering, 59; People
v.
Commissioners, 11 Howard’s Practice, 89; People v. Champion,
Wright v. Fawcett, 4 Burrow, 2041; Moses on Mandamus, 214.
2 Parsons on Shipping, 224; Lynch
v.
Crowder, 2 Law Reporter, N. S. 355; Thomson
v. Nanny,
Carpenter v. Bristol, 21 Pickering, 258; Angell & Ames on Corporations, 9th ed., § 720.
Ex parte Crane,