the federal courts have not hesitated to enjoin proceedings in state courts where this has been necessary to preserve their own jurisdictional rights, or to protect individuals in their federal rights. Thus in Dietzsch v. Huidekoper it was held that the prohibition of Section 720 of the Revised Statutes would not prevent a federal court from issuing an injunction restraining proceedings on a replevin bond, the state suit being based on a judgment obtained in a state court after the defendant had removed the case to the federal courts and there obtained judgment in his favor. The court said: "The action on the replevin bond in that [the state] court was simply an attempt to enforce the judgment of that court in the replevin suit, rendered after its removal to the United States circuit court, and after the state court had lost all jurisdiction over the case. If no judgment had been rendered in the state court against the plaintiffs in the replevin suit, no action could have been maintained upon the replevin bond. The bond took the place of property seized in replevin, and a judgment upon it was equivalent to an actual return of the replevied. property. The suit upon the replevin bond was, therefore, but an attempt to enforce a pretended judgment of the state court, rendered in a case over which it had no jurisdiction, but which had been transferred to and decided by the United States Circuit Court, by a judgment in favor of the plaintiffs in replevin. The bill [for injunction] in this case was, therefore, ancillary to the replevin suit, and was in substance a proceding in the federal court to enforce its own judgment by preventing the defeated party from wresting the replevied property from the plaintiffs in replevin, who, by the judgment of the court, were entitled to it, or what was in effect the same thing, preventing them from enforcing a bond for the return of the property to them. A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of injunction to stay proceedings in a state court." 8

7103 U. S. 494; 26 L. ed. 497.

8 In Mississippi Railroad Commission v. Illinois Central R. Co. (203 U. S. 335; 27 Sup. Ct. Rep. 90; 51 L. ed. 209) it was held that the commission was not a court within the meaning of Rev. St., Sec. 720.

In Martin v. Hunter's Lessee, a case, it will be remembered, arising out of the refusal of the state court to obey a mandate from the federal tribunal, the court did not find it necessary to decide whether or not the federal court had the power to issue a mandamus to the Virginia court to enforce its former judgment. Instead, the court simply reversed the judgment of the Virginia Court of Appeals and affirmed that of the lower court. Justice Johnson rendered a concurring opinion in which he said: "The presiding judge of the state court is himself authorized to issue the writ of error, if he will, and thus give jurisdiction to the Supreme Court; and if he thinks proper to decline it, no compulsory process is provided by law to oblige him. The party who imagines himself aggrieved is then at liberty to apply to a judge of the United States, who issues the writ of error, which (whatever its form) is, in substance, no more than a mode of compelling the opposite party to appear before this court and maintain the legality of his judgment obtained before the state tribunal. An exemplification of the record is the common property of every one who chooses to apply and pay for it, and thus the case and the party are brought before us."

After pointing out that the court disavowed all intention to decide as to the right to issue a compulsory process to the state courts, Justice Johnson, however, goes on to argue that the federal court might properly issue a mandamus only to the lower federal courts, and that in case a state court, whose decrees might be reversed by the federal court, should refuse to alter its action in obedience thereto, the federal Supreme Court, under authority granted by the Judiciary Act, where the case had once before been remanded, could itself proceed to a final decision of the case and

In French v. Hay (22 Wall. 250; 22 L. ed. 857) the court say: "The prohibition in the Judiciary Act against the granting of injunctions by the courts of the United States touching proceedings in state courts has no ap plication here. The prior jurisdiction of the court below took the case out of the operation of that provision. If the state courts should persist in proceeding a thing not to be expected the wrong will be on the part of those tribunals and not of the court below."

91 Wh. 304; 4 L. ed. 97.

the awarding of a judgment thereupon.10 By this means and by a liberal use of the writ of injunction and that of habeas corpus ad subjeciendum, Justice Johnson declared that the constitutional revising power might be fully secured to the United States without ever resorting to compulsory or restrictive processes upon the state tribunals.

The circumstances under which the federal courts will issue injunctions restraining state officials from enforcing, or bringing suits in the state courts to enforce a state act which is alleged to be in contravention of the federal Constitution will be further considered in chapter LIV, in which the suability of the State is disenssed.

The

The federal courts have not been given, nor could they constitutionally be given, the jurisdiction to issue writs of mandamus to compel the performance by state officials of state duties.11 constitutional power of Congress to authorize the federal courts, by writs of mandamus, to compel the performance of duties, whether by state or federal officials, imposed by federal law would seem to be beyond question, though Congress has not yet seen fit to grant to these courts the power except as ancillary to jurisdiction already otherwise obtained.12 It is to be remembered, however, that Congress cannot, without the consent of the State, impose upon its functionaries the performance of federal duties. Where, however, the act ordered is one unconnected with his official state duties, the fact that an individual is a state functionary would not exempt him from the mandatory power of the federal courts. § 74. State Restrictions upon the Right of Removal of Suits from State to Federal Courts.

By various acts of Congress rights have been granted to defendants to remove into federal courts civil actions begun in state

10 By Act of 1867 (Rev. Stat., Sec. 709), the Supreme Court was given this power without reference to whether or not the case had been previously remanded. That act provides, "the Supreme Court may, at their discretion, proceed to a final decision and award execution, or remand the case to the inferior court.".

11 Prigg v. Pennsylvania (16 Pet. 539; 10 L. ed. 1060).

12 U. S. v. Circuit Court (126 Fed. Rep. 169).

13

courts, where there is a diversity of citizenship of the parties. This right, which will be more fully discussed in a later chapter,' is granted, not that federal supremacy may be maintained, but that an impartial tribunal may be secured in suits in which citizens of different States are parties. One important question, however, with reference to the maintenance of federal authority, has arisen in connection with the right of removal based upon diversity of citizenship, and this is as to the authority of the States to prevent foreign corporations from exercising this federal privilege by making it a condition precedent to their being allowed to enter the State or to continue to do business therein that, when sued by a citizen of the State, they will not have the cause removed into the federal courts. Here it is apparent that the question is not so much the right of the State to interfere with the exercise by a federal court of its jurisdiction when obtained, as it is to prevent that jurisdiction from being invoked.

That States cannot put restrictions upon the removal of cases from their courts to federal tribunals any more than they can prevent it was declared in a case arising under a statute of the State of Wisconsin which provided that insurance companies of other States desiring to do business within its limits should sign a written agreement that they would not remove to the federal courts suits brought against them in the State's courts. One of these companies, having removed a case to the federal courts notwithstanding its agreement not to do so, the Wisconsin courts, ignoring the fact of its removal, proceeded with the case and rendered judgment against the company. The Supreme Court of the United States, upon appeal to it, declared the judgment void upon the ground that the agreement itself and the statute requiring it were illegal, as no one could be compelled to bind himself in advance not to exercise a right guaranteed to him by the Constitution any more than he could barter away his life or freedom.14

When, however, in a later case, the Supreme Court of the United States was asked to issue an injunction forbidding the

13 See Chapter L.

14 Home Insurance Co. v. Morse (20 Wall. 445; 22 L. ed. 365).

Secretary of State of Wisconsin to revoke the license of an insurance company that had violated its agreement not to remove, that court held that it could not thus control the action of a state official, even though his action was apparently based upon an improper ground. The court said: "The argument that the revocation in question is made for an unconstitutional reason cannot be sustained. The suggestion confounds an act with an emotion or a mental proceeding which is not the subject of inquiry in determining the validity of a statute."15 In other words it was held that the right both of granting and of revoking a license to a foreign corporation to do business within a State belonging to the proper officer of that State, it was not within the competence of a federal court to determine whether that power was exercised for a good or bad reason or for no reason at all.

But when, in a still later case, there was drawn into question the operation of a statute of Iowa which declared that upon the violation by a foreign insurance company of its agreement not to remove a case to the federal courts, its license should thereby become void, the federal Supreme Court held that the violation of an illegal agreement could not of itself operate as a revocation of the company's license. If revoked at all it would have to be by the act of a competent state official, and not, ipso facto, by the exercise of a constitutional right.16

This entire subject was reviewed in Security Mutual Life Insurance Co. v. Prewitt" in which it was held that a State may by statute provide that if a foreign insurance company shall remove to a federal court a case which has been commenced in a state court, the license of such company to do business within the State shall thereupon be revoked. In its opinion the court say: "It is admitted that a State has power to prevent a company from coming into its domain, and that it has the power to take away the right to remain after having been permitted once to enter, and that right may be exercised from good or bad motives; but what the company denied [in this case] is the right of a State to enact

15 Doyle v. Continental Insurance Co. (94 U. S. 535; 24 L. ed. 148). 16 Barron v. Burnside (121 U. S. 186; 7 Sup. Ct. Rep. 931; 30 L. ed. 915). 17 202 U. S. 246; 26 Sup. Ct. Rep. 619; 50 L. ed. 1013.