It is not a proper proceeding for the cor rection of errors of an inferior court ; Judges of the Oneida Common Pleas v. People, 18 Wend. (N. Y.) 79; State v. Judge of Dist. Court, 13 La. Anu. 481; 7 Dowl. & 11. 334 ; Ex parte Oklahoma, 220 U. S. 191, 31 Sup. Ct. 426, 55 L. Ed. 431; In re Riggs, 214 U. S. 9, 29 Sup. Ct. 598, 53 L. Ed. 887 ; or where there is adequate remedy by appeal; Gibson v. Circuit Judge, 97 Mich. 620, 57 N. W. 189; San Joaquin County v. Superior Court, 98 Cal. 602, 33 Pac. 482 ; Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386 ; or by certiorari ; Crittenden v. Circuit Judge, 97 Mich. 637, 57 N. W. 192. But mandamus, under U. S. R. S. § 088, is for the purpose of revising and correcting proceedings in a case already instituted in the courts and is part of the appellate jurisdiction of the supreme court.
It will lie to compel a circuit court to re mand a case to a state court where it is ap parent that that court has no jurisdiction. The rule that mandamus will not lie to con trol the judicial discretion of an inferior court does not apply to an attempt of such court to exercise its discretion on subject matter not within its jurisdiction ; In re Winn, 213 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873; or where a court assumes jurisdic tion on removal in a case where, ou the face of the record, no jurisdiction attached ; Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264.
It cannot perform the office of an appeal or writ of error to compel the circuit court to reverse its decision refusing to remand a case removed from a state court; In re Pol litz, 200 U. S. 323, 27 Sup. Ct. 729, 51 L. Ed. 1081; but where a court refuses to take ju risdiction when it should do so, mandamus will lie ; In re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211; State v. Dis trict Court, 38 Mont. 166, 99 Pac. 291. It lies to compel a person or officer to perform a duty imposed by law. If the duty lies in his discretion, the writ may issue to compel him to act and decide, and this applies to a judi cial officer ; Kimberlin v. Commission To Five Civilized Tribes, 104 Fed. 653, 44 C. C. A. 109.
It is a suit within the meaning of that term in U. S. R. S. § 709; American Express Co. v. Michigan, 177 U. S. 404, 20 Sup. Ct. 695, 44 L. Ed. '823. Where it is brought to enforce a judgment on municipal bonds it is purely ancillary to the original action and a substitute for the ordinary process of exe cution ; Kinney v. Banking Co., 123 Fed. 297, 59 C. C. A. 586.
The writ is not demandable, as matter of right, but it is to be awarded in the dis cretion of the court ; 1 Term 331, 396, 404, 425; People v. Croton Aqueduct Board, 49
Barb. (N. Y.) 259 ; Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580. But where a clear legal right to a writ is shown, the court has no discretion about granting it; Illinois Central R. Co. v. People, 143 I11. 434, 33 N. E. 173, 19 L. R. A. 119.
A petition for a mandamus to a public officer abates by his resignation of his of fice; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 17 Sup. Ct. 225, 41 L. Ed. 621; where it was said that this principle has for years been considered as so well settled in that court "that in some of the cases no opinion has been filed and no official report publish ed ;" The Secretary v. McGarrahan, 9 Wall. (U. S.) 298, 313, 19 L. Ed. 579. The writ does not reach the office, but is against the officer as a person ; U. S. V. Boutwell, 17 Wall. (U. S.) 604, 21 L. Ed. 721.
The power of granting this writ in Eng land seems originally to have been exercised by the court of chancery, as to all the in ferior courts, but not as to the king's bench; 1 Vern. 175 ; Ang. & A. Corp. § 697. But see 2 B. & Ald. 646; 2 M. & S. 80; 3 Ad. & E. 416. But for a great number of years the granting of the prerogative writ of manda mus has been confined in England to the court of king's bench.
In the United States the writ is generally issued by the highest court having jurisdic tion at law ; Com. v. Common Councils, 34 Pa. 496 ; it cannot be granted in equity; Smith v. Bourbon, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73.
Section 234 of the Judicial Code (March 3, 1911) gives the supreme court power to is sue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office un der the authority of the United States. The issuing of a mandamus to courts is the exer cise of an appellate jurisdiction, and, there fore, constitutionally vested in the supreme court; but a mandamus directed to a public officer belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restrict ed to certain specified cases, which do not comprehend a mandamus. The latter clause of the above section (which is taken from the Judiciary Act of Sept. 24, 1789), authorizing this writ to be issued by the supreme court to persons holding office under the authority of the United States, was held not war ranted by the constitution, and void; Mar bury v. Madison, 1 Cra. (U. S.) 175, 2 L. Ed. 60; see Ex parte Hoyt, 13 Pet. (U. S.) 279, 10 L. Ed. 161; Ex parte Whitney, 13 Pet: (U. S.) 404, 10 L. Ed. 221.