It is, however, not quite correct to say that the two judicial systems are "entirely independent in their sphere of action." It is true that the state courts are wholly without power in any way to control the operations of the federal courts, but the reverse is not true. As has already appeared, a writ of error lies in certain cases from the federal Supreme Court to the state courts, and, when removal of a case is sought, the federal courts may issue a writ of certiorari to the state court demanding a copy of the record, and the clerk of the state court refusing compliance with this demand becomes, under an act of Congress, liable to fine or imprisonment. Furthermore the federal courts possess the right to protect their own jurisdictional rights or the rights of parties to suits before them by restraining orders forbidding proceedings in the state courts.

It is true that, actuated by a desire to preserve so far as possible the independence of the state judiciaries Congress, by act of 1793,6 which is still in force, has provided that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such an injunction may be authorized by any law relating to proceedings in bankruptcy." But, in other than cases in bankruptcy, 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. Huidekoper7 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

3 6 Wall. 210; 18 L. ed. 781. 46 Wall. 514; 18 L. ed. 933. 6 9 Wall. 415; 19 L. ed. 732. «Rev. St., Sec. 720.

7 103 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,9 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 the awarding of a j udgment 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.

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 application 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."

9 1 Wh. 304; 4 L. ed. 97.

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 (The Suability Of States. 611. A Sovereign State May Not Be Sued Without Its Consent), in which the suability of the State is discussed.

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 The 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.