This was an alternative writ of mandamus, issued out of this court and directed to the circuit judge of Rock county, commanding him to proceed with the trial of a certain action of ejectment pending in the circuit court of Rock county — which action is mentioned in said writ, — or that he return his reasons for refusing and declining to try said cause. The circuit judge has made return that he refused to take any action in, or permit the plaintiff to proceed with, the trial of the cause, for the reason that a writ of certiorari, issued out of the circuit court of the United States for the western district of Wisconsin, had been served and filed with the clerk of his court; a copy of which writ of certiorari is annexed to and made a part of the return.
The counsel for the relator now moves for a peremptory writ on the return made by the circuit judge. We think the motion for the peremptory writ must be denied, for the reason that the matters stated in the writ of certiorari afford a sufficient ground or excuse for the refusal of the respondent to allow the relator to proceed with the trial of the ejectment suit pending or commenced in the circuit court of Rock county.
The writ of certiorari sets forth and states that this action of ejectment, which was commenced in the circuit court of Rock county, is for and on account of certain rights, authórity and title set up and claimed by Henry M. lewis, collector of internal revenue in and for the second district of Wisconsin, under the provisions of the internal revenue laws of the United States, and for and on account of the right, title and authority
Now the counsel for the relator does not question- the validity of this enactment, nor does he claim that the proceedings taken to remove the cause to tlie circuit court of the United States were not regular and in compliance with its provisions. But he insists tbat it was the duty of the state court to proceed with the cause and try the same on the merits, and thus determine by a judicial investigation whether the suit was one falling within the class named in the act of congress or not. If on such trial it was ascertained that the cause was one embraced within the act, then it is conceded that the state court would have lost jurisdiction by the steps taken to remove it, and that all of its proceedings would be coram nonjudice. There is undeniably some difficulty, and frequently no little hardship, growing out of the operation of the laws of congress which provide for the removal of a class of causes from the jurisdiction of the state courts to the federal courts. Whether this difficulty and embarrassment are not inherent in our form of government, and do not grow out of the necessity which seems to exist to render one system of tribunals, which for most purposes is independent and distinct in its constitution and actioh, subordinate as to these causes to a foreign jurisdiction, are questions we are not called upon to examine. The law of congress under which it is sought to remove this cause, is founded upon the theory that any case arising under the revenue laws of the United States may be removed at the instance. of the defendant from the state to the federal tribunals. And when the prescribed steps have been taken by the defendant to remove the cause, the act provides that it shall be the duty of the state court to stay all further proceedings therein, and any trial or judgment in the state court thereafter had is null and void. Now, in this condition of the statutory law on the subject, it seems strange that it is still the duty of the state court
For these reasons the motion for a peremptory writ must be denied.
By the Court. — Motion denied.