269 F. 150 | E.D. Mo. | 1920
John C. Higdon, Esq., and G. H. Foree, Esq., candidates on the Democratic ticket for nomination to the positions of United States Senator from Missouri and Representative in Congress from the Tenth congressional district of that state, respectively, at the primary election August 3, 1920, applied to the judge of the United States District Court for the Eastern District of Missouri for a writ of mandamus commanding the board of election commissioners in tha city of St. Louis, Mo., to reopen the ballot boxes, recount the ballots, and make a true and lawful return thereof to the court. Various frauds and irregularities were alleged. The application was denied by Hon. Charles B. Faris, United States District Judge, for want of jurisdiction. A petition for rehearing was presented to William C. Hook, United States Circuit Judge, at the instance of the petitioners and with the consent of the District Judge.
Two grounds for the existence of jurisdiction are asserted: First, the provision of the Constitution which extends the judicial power “to all cases in law and equity” arising under the Constitution and laiys of the United States (article 3, § 2) ; second, the federal Corrupt Practices Acts (37 Stat. 29 [Comp. St. § 192 et seq.]; 40 Stats. 1013 [Comp. St. Ann. Supp. 1919, § 10251a]), relating to primary, general, and special elections.
In Knapp v. Railway Co., 197 U. S. 536, 25 Sup. Ct. 538, 49 L. Ed. 870, the Interstate Commerce Commission sought by an original petition for mandamus in a Circuit Court of the United States to compel the railway company to make certain reports which an act of Congress authorized the Commission to require. The Supreme Court held that the jurisdiction of the Circuit Courts under the Judiciary Act of 1789 had not been enlarged by subsequent statutes; also that the court had no power to enforce performance by the railway company of its duty by an original proceeding in mandamus. In Covington Bridge Co. v. Hager, 203 U. S. 109, 111, 27 Sup. Ct. 24, 25 (51 L. Ed. 111), the court said:
“We deem it settled beyond controversy, until Congress shall otherwise provide, that Circuit Courts of the United States -have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by .the Constitution of the United States.”
The District Courts of the United States have no more power in this particular than had the Circuit Courts, to whose jurisdiction they succeeded.
The petition for rehearing is denied.