ajnrn^U Cam ^rl^nol ICibratry Cornell University Library KF8858.B15 V.2 The law of jurisdiction :inciuding impea 3 1924 020 096 875 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020096875 THE LAW OF JURISDICTION lNCLirDIK& IMPEACHMENT OF JUDGMENTS, LIABILITY FOR JUDICIAL ACTS, AND SPECIAL REMEDIES AS FOLLOWS: DIVORCE; CONTEMPT; HABEAS CORPUS; CERTIORARI; PROHIBI- TION; QUO WARRANTO; MANDAMUS. W! F." BAILEY, Late Ciecuit Judge of Wisconsin; author of 'Master's Liability for Injuries to Servant;" "The Law of Personal Injuries Relating to Master and Servant." IN TWO VOLUMES. YOLUME II. CHICAGO: T. II. FLOOD AND COMPANY. 1899. Copyright, 1899, BY W. F. BAILEY. STATE JOURNAL FEINTING COMPANY, Printers and Sterbotypbrs, madisoh, "wis. TABLE OF CONTENTS. YOLUME ir. Eeferences are to sections. CHAPTEE 23. CERTIORARI. Object and purpose of the writ ....... 409 Distinction between courts of record and those not of record . 414 Courts of record when proceeding out of the course of the com- mon law ... . ... . . . . 415 Statutes of several states 418 et seq. When writ will lie 436 et seq. Inferior courts . ^ . 431 et seq. Judicial acts 432a Tribunals other than courts when exercising judicial powers . 483 Errors of law 433 Inferior tribunals continued — Highway commissioners . . 433a Tax proceedings 433& Proceedings of public boards 433c Direction of the writ 433d CHAPTER 24. CERTIORARI CONTINUED. Allowance of writ, when discretionary 434 Rule of practice in Massachusetts and some of the Eastern States 434a Rule of practice in several other states 434& Time within which writ should be allowed .... 434d Proceedings subject to review 435 et seq. Review of evidence; rule in several states . .... 436& Remedy by appeal and certiorari, when concurrent . . . 437 Void proceedings; rule 438 Addressed to justices' courts 440 To tribunals other than courts 441 To municipal corporations 443 Ancillary to other proceedings 443 Contempt proceedings . . 444 Who may apply for the writ; parties 444a IV CONTENTS OF TOLITME II. Eeferences are to sections, The return; hearing .... The judgment; common-law The judgment; effect of statutes The judgment; when no jurisdiction . The judgment; dismissal of proceedings The judgment; modifying .- The' judgment; conclusive effect of . Costs, question of ... . Eeview of judgment .... CHAPTER 25. PEOHiBITION, WRIT OF, 445 et sec. 444b 444c 4AM 444e 444/ Uig 444h 444i 444; Definition and nature of writ 445 When writ will lie . . . . 446 et seq. When granting of is discretionary . 448 Legislation, how far subject to control 450 Removal of officers .... 451 Administrative action 453 Executive ofHcers .... 453 Ministerial officers .... 454 Boards of review 455 Jurisdiction, question of ... . 456 Contempt proceedings 459 Effect of other remedies existing 466 Inferior courts; splitting demands 473 Improper service of process 474 Removal of causes .... 475 Venue, change of ... . 476 Granting new trials .... 477 Interest of judge .... 477 Title to office ' 479 Stage of proceedings where writ will issue 480 CHAPTER 26. QUO WARRANTO, 483 et seq. Nature and office of writ 482 Statutory proceedings in nature of 484 Title to office 485 et seq. Officers distinguished from agents 488 Whether a -writ of right or discretionary 490 Rule in courts of last resort 491 Other remedies existing 492 Municipal boards as judges of qualification and election of mem- bers 494 Power of legislatures to control the use of the romedy . . 495 Relator, who may be 499 et seq. Discretion of attorney-general 503 CONTENTS OF VOLUME II. V Eeferences are to sections. Applicatioii to the court for leave 504 Statutes, effect upon the rule 505 Extent of the inquiry 507 Vacancy in office 513 Eligibility 514 Persons holding another office 517 Persons convicted of crime 518 Bribery, effect of 5I9 Expiration of term before conclusion of proceedings . . 520 The judgment 521 Appeal 524 CHAPTEE 27. quo "WARRANTO CONTINUED — MUNICIPAL CORPORATIONS — PRIVATE CORPORATIONS. Municipal Corporations. Writ addressed to 535 et seq. Purpose of the writ 526 Proceedings of, not interrupted, reviewed or amended . . 529 Relator, who may be 530 "Where lands improperly included within limits of city or village 533 Private Corporations. Use of the writ with respect to corporate officers . . . 533 Statutory remedies; their effect 534 Remedy in equity , 535 Parties, who are proper 536 Corporate franchises, who may attack 537 Modes of dissolving corporations 588 Relator, who may be 539 Abuse of franchise 541 Usurping a franchise 541, 553 Non-user of a franchise 543 Monopoly; use of franchise to ci-eate 545ct Distinction between misuse and acts ultra vires . , , 547 Statutory remedies 552 Extent of the inquiry 556 Proceedings to oust from the exclusive right to exercise a fran- phise 556 et seq. Effect of statutes extending remedy to include abuse of powers 558 Other remedies existing; effect of 559 Estoppel, when applicable 560 CHAPTEE 28. MANDAMUS. Character and origin of the ancient writ ..... 561 The modern writ . . , 562 VI COIsTENTS OF VOLUME II. EeferencGS are to sections. Office of the writ .... Demand, when necessary . . The relator To what extent the writ is discretionary Effect of other existing remedies What is an adequate remedy Useless or unlawful acts . . . 563 563a 564, 565 568 et seq. 576 576 et seq. 585 et seq. CHAPTEE 29. MANDAMUS TO INFERIOR COURTS, Nature and extent of the remedy Compelling courts to assume jurisdiction Compelling entry of judgments Compelling enfoi-oement of judgments Compelling reinstatement of an appeal Compelling supersedeas Compelling change of venue Compelling vacating of orders dismissing causes Compelling setting aside service of process Compelling granting or dissolving of injunctions Compelling granting or. vacating other orders . Compelling signing of bills of exceptions . Compelling admission of attorneys Compelling reinstatement of attorney Compelling appointment of, to defend non compos person Suspension and disbarment of attorney . . . 593 594 601 603 604 606 607 609 610 611 611b 613 et seq. 624 63.-) 637 635 et seq. CHAPTER 30. MANDAMUS CONTINUED — PARTICULAR COURTS. Justices' courts and justices of the peace; writ addressed to . 628 Federal courts . . 629 Supreme court of the United States; when writ may issue from 639 Circuit and district courts . , G30 Supreme court of the District of Columbia .... 631 Removal of causes 633 State courts; supreme or court of last resort .... 634 CHAPTEE 31. MANDAMUS TO PUBLIC OFFICERS. General principles 635 Executive officers 630 Federal officers C39 State officers 646 et seq. Issue of warrants for salaries 655 CONTENTS OF VOLUME II. Vll References are to sections. Issue of warrants for awards 656 Payment of awards and other claims 658 et seq. Warrants drawn on special fund 661a CHAPTER 32. MANDAMUS TO PUBLIC OFFICERS CONTINUED. Clerks of court 663 Issue of executions 663 Other duties 665 Delivery of books and papers 666 Inspection of papers and records 669 Approval of bonds , 670 District attorneys 671 Sheriffs 673 Begisters of conveyances 677 County clerks 678 Public officers generally 679 CHAPTEE 33. MAN'D Alius CONTINUED — RIGHT AND TITLE TO OFFICE — ELEC- TIONS, 684 et seq. County seat; testing question of location or removal . . . 684 Eight and title to office, how far determined .... 685 Admission to office 686 Compelling election 688 Nominations for office 689 Election of officers; appointment of 690 Boards of canvassers 691 Possession of office 701 Removal and restoration of public officers .... 707 County seat; elections to determine location of . . . 713 Action of board upon petition 713 Canvassing the vote 717 Oath of office; compelling officer to administer . . . . 720 Issue of certificates of election 733 Appointments to office . _ 723 Nominations to office; placing names on official ballot . . 734 Civil service; appointment of veterans 735 Removal of an officer, compelling 728 Acceptance of an office, compelling 739 CHAPTER 34. MANDAMUS CONTINUED— MANDAMUS TO MUNICIPAL BODIES. Municipal corporations 733 et seq. County boards and municipal boards 733 et seq. Acting as board of audit 734 Vlll CONTENTS OF VOLUME II. References are to sections. Payment of claims 735 Judgments; providing for payment of 736 Levy of taxes for such purposes 736 Issue of writ by state court to enforce payment of a judgment of a federal court . . 746 Distinction between negotiable bonds and ordinary warrants . 743 Payment of bonds; compelling levy of taxes .... 747 Payment of money collected 753 Enforcing issue of bonds 753 Levy of taxes for other purposes 756 Public improvements 756 Payment of awards . 757 Other duties relating to public funds 761 Water rentals 759 Turning over funds 761 Creation of public or sinking funds 762 Highways; opening; construction and repair .... 764 et seq. Bridges; construction and repair 766 et seq. Licenses, duty in respect to 770 Contracts, letting of 771 Contracts for public printing 773 Contracts; performance of conditions 773 Reversal of action once taken ....... 774 Buildings; changing plan of construction 777 Meeting of board or council compelling 783 Ordinances, compelling enforcement of 784 Delivery of bonds 786 Correction of record 787 School boards 788 et seq. Erection of building 789 Distribution of school books 739 Reinstatement of pupil 789 Course of studies to be pursued 739 Colored children; duty in respect to 79O Reinstatement of teacher 79]^ Payment from school fund 793 Issue of certificates to teachers 793 Examination of applicants 1793 Payment of compensation 1-/9Q CHAPTEE 35. MANDAMUS CONTINUED — PRIVATE CORPORATIONS — PUBLIC DUTIES, 794 et seq. Nature of public duties of private corporations .... 795 Discretion, control of -.qp Visitorial powers of state 0,0 Railroads; public duties q,^,-. CONTENTS OF VOLUME IL ixT^ Eeferences are to sections. Operation of road 804' Deviation from established route SOS- Construction of road 806' Construction of viaducts , 809 Power of legislature to impose additional burdens . . . 809 Restoring highways 814 Construction of private crossings 815 Construction of cattle-guards 816 Construction of fences 817 Establishment of depots 818 Carriage and delivery of freight 822 Furnishing separate trains for passengers 835 Regulation of rates 836 Unlawful discrimination 837 Payment of compensation for land 839 Contract duties; rule 833 Water-works companies . . . . . . . . 831 et seq. Control of rates 833 Compelling extension of mains 834 Compelling the furnishing of pure and wholesome water . . 836 Gas companies 838 Telephone companies 841 Canal companies 844 Log-driving companies 845 Street railway companies 846 CHAPTER 36. MANDAMUS CONTINUED — PRIVATE CORPORATIONS CONTIN- UED—PRIVATE CORPORATIONS PROPER, 853 et seq, Courts will not interfere 853 Enforcement of specific duties 853 Election, compelling holding of 854 Inspection of books and papers 855 Admission to society . 865 Reinstatement of members 866 By-laws, reasonableness of 869 et seq. Religious corporations 879 Enforcement of trusts 881 Mutual Benefit Societies. Expulsion of members . 883 Notice, when, required - 883 Effect of failure of jurisdiction upon rights of members . . 884 Grounds for expulsion or forfeiture of contract rights . . 885 Effect of changes in constitution or by-laws .... 886 Waiver of forfeiture 887 Effect of course of dealing 888 Effect of subsequent assessment after default .... 889 X CONTENTS OF VOLUME II. References are to sections. Waiver of non-performance of other conditions , . . 890 Waiver of forfeiture by inconsistent acts 891 Effect of non-payment of assessments vs^hen due to uncontrolla- ble causes 893 Reinstatement; effect upon contract 893 Remedies of members ........ 894 Jurisdiction of superior body, incorporated under another state, to make assessments 895 CHAPTER 3Y. JUDGES AND OFFICERS EXERCISING JUDICIAL POWER - BILITY OF. Rule with respect to judges of superior courts . There must be an absence of all jurisdiction over the subject- matter Distinction between lack of jurisdiction and error Where warrant or indictment fails to charge an offense Exemption only applies to judicial acts Distinction between judicial and ministerial acts Rule with respect to judges of inferior courts . Reasons given for distinction between judges of superior and those of inferior courts ..... Doctrine of the New York court .... Where warrant does not charge the offense Where proceeding under a law in fact unconstitutional Where justice has mistaken the law Rule with respect to officers exercising judicial powers Where malice or corruption is cliarged Rule with respect to election officers Exception to the rule as recognized in some states . Jurisdiction of officers Malice, character and extent of proof of . ■LIA- 897 898 899 900 901 903 903 904 905 906 907 908 909 910 911 912 918 -Q-- JURISDlCT10i\, IMPEACHMENT, ETC. PAET III. SPECIAL REMEDIES — Continued. CHAPTER 23. CEETIOEAEL Seo. 409. Object and purpose of the writ. 410. Writ ordinarily ' 11 not issue where there is another ade- quate remedy. 411. Appeal — Effect of, where right exists. 413. Subject illustrated — Excep- tional case. 413. Rule in Idaho, Nevada and other states. 414. Distinction between courts of record and those not of rec- ord. 415. Courts of record proceeding out of the course of the common law. 416. Writ not a substitute for appeal or writ of error. 417. Iowa statute — Rule under. 417a. Trial de novo. 418. Statutes of several of the states — Alabama. 419. Mississippi. 430. Missouri ( 431. Georgia. / -■-- 433. Massachur"!"^^"^ 433. Maine. 434 Vermont. 434a. Writ supersedev. in New York in certain cases — Kansas and Nebraska. 435. Michigan. 36 Sec. 436. General rule where there Is no other adequate remedy. 437. Writ only reaches jurisdic- tional defects of courts. 438. Distinction between error and want of jurisdiction. 489. Subject continued. 430. Tribunals not proceeding ac- cording to the common law. 431. Inferior courts — Jurisdictional questions examined. 433. Term, " not proceeding accord- ing to the course of the com- mon law," defined. 433a. Judicial acts. Towns, school districts, etc. — Creating, dividing, vacating. Assessors — Acts of. Boards of audit. Licenses — Granting or refus- ing. OflScers — Appointment and re- moval Boards of health. Wrongful acts. 433. 5?ribunals, other than courts, exercising judicial power. 4B3a. Highway commissioners — Acts of. 433&. Tax proceedings. 4B3c. Proceedings of public boards. 433d Direction of the writ. 662 SPECIAL REMEDIES. [§ i09. Sec. 409. Object and purpose of writ. — The object and pur- pose of a writ of certioro.ri is to bring up for review the record of proceedings of inferior or subordinate courts and other tri- bunals exercising judicial functions. In discussing the subject, and in the examination of adjudications of courts, great care must be exercised in distinguishing between common-law writs and those authorized by statute, called statutory writs ; and again with respect to common-law writs, those cases where the writ issues to bring up the records or proceedings of courts, and where it issues to some body or inferior tribunal exercising judicial powers. The common-law writ, as its name implies, is not a creature of the statute, but exists independent thereof. Though in many jurisdictions its use has been either extended, limited or qualified by legislative action, so that it is more in the nature of a statutory writ than otherwise, yet in most juris- dictions, when the common-law writ issues and is directed to a court, it only brings up for review jurisdictional questions. It will not lie on account of error or mistake, and I apprehend that in most of the states, except those where the writ has fallen into disuse and another appropriate remedy provided, notwith- standing there may exist a statutory writ, the common-law writ may be used in all cases where the court is proceeding without jurisdiction.^ Note to Sec. 409. — The writ of certiorari is one of common use, yet of all writs and remedies its object and purpose is the least understood. AVho can state 'correctly its purpose in such a way that it will meet the views of courts in all jurisdictions? I am speaking now with reference to the com- mon-law writ. The office of the writ is well understood. It is to certify the record of the proceedings from an inferior to a superior tribunal. Nothing is to be certified but the record proper, and the court acts upon that record. Highway Com'rs v. Carthage, 37 111. 140; Petition of Tucker, 27 N. H. 405. Understanding fully the office of the writ does not meet the question. That is, to what extent will the record be examined, and what errors will be deemed sufficient to authorize a reversal of the judgment or proceedings. But little reliance, as appears in the discussion of this subject as we pro- ceed, can be placed upon general expressions. Those who have pretended to treat the subject, as some have, by merely collecting such general ex- pressions, have tended to confuse rather than to demonstrate and make plain. They make no distinction between errors of law and errors which are jurisdictional, nor do they make any distinction between proceedings 1 Jackson v. People, 9 Mich. Ill; Fowler v. Roe, 35 N. J. L. 549; State Stanley v. Homer, 24 N. J. L. 511; v. Smith, 101 Mo. 174. §§ 4:10, 411.] . OEETIOEAEI. 563 of inferior courts and proceedings of inferior boards exercising judicial powers. It is evident that these distinctions must be observed, or else an intelligent treatment of the subject is not made. Attention should be called to the fact that the purpose of the common-law writ is not held to be the same in all jurisdictions with respect to review of errors in proceedings of inferior courts, and what may be a rule in one state is of no force in another. Sec. 410. Writ ordinarily will not issue where there is an- other adequate remedy.— The rule is quite generally stated that the writ- will not issue unless there is no appeal, nor, in the judgment of the court, any plain, speedy or adequate rem- edy, and in some of the states such is the provision of statutes.^ It must be kept in mind, however, that such rule where it ex- ists applies more generally to inferior courts, and, as is stated hereafter and quite fully discussed, does not in all cases apply to other inferior tribunals exercising judicial power. Sec. 411. Appeal — Effect of^ where right exists. — The courts lay much stress upon the particular language used, and hence the writ is not denied in all cases where there exists a right of appeal or other remedy. If the remedy by appeal, where it exists, is not adequate or cannot be applied promptly, then the injured party may, in the discretion of the court, have the writ. This exception to the rule is illustrated in a case of bastardy under the Iowa code, by the provisions of which the county court is authorized to take from the father of the child such security as may be directed by the court to save the county, and every county in the state, from all charges for the maintenance of the child. The order and judgment of the court required a quarterly payment of an amount deter- mined to the county treasurer. This was held an excess of jurisdiction of the court and certiorari would lie. The party had the right of appeal, but, as was stated by the court : " If the defendant appeals his case in order to avoid the unauthor- ized and illegal part of the judgment of the county court re- quiring him to pay $10 quarterly into the county treasury for the support of the child, he only takes the case to a tribunal where the unauthorized judgment of the county court Avill, by 1 Clary v. Hoagland, 5 Cal. 476; Iowa, 137; Winter v. Fitzpatrick, 35 Miller v. Sacramento County, 25 CaL Cal. 369. 94; Ransom v. Commissioners, 6fi 5t3i SPECIAL EEMEDIES. [§ 412. the action of the district court, become authorized and legal. He appeals from the ' irjing pan to the fire.' This would not afford an adequate remedy or any remedy whatever." ^ It is true that some courts have unguardedly used the expression that the writ will not lie where there is the right of appeal ; ^ yet it is very evident, from what is stated in other cases, that no more was intended than that if there existed a right of ap- peal which afforded a plain, speedy and adequate remedy, then the writ would not lie. Thus where, upon appeal, a judgment rendered in the county court and affirmed by the district court was reversed by the supreme court, and, after the remittitur was filed in the district court, the county court issued a mandamus commanding the clerk to issue a writ of restitution pursuant to the original judgment in that court, it was held that certiorari would lie on the petition of a stranger to the record, though an appeal would lie. It was said that this was one of the classes of cases referred to in the 'section of the code.' Sec. 412. Subject illustrated — Exceptional case. — So the writ of certiorari was held to be the proper remedy to annul an erroneous order made by the superior coui-t dismissing an appeal from a justice's court for the supposed insufficiency in the undertaking on appeal. The petitioner applied for a writ of mandamus to compel the hearing of the appeal. It was stated that mam,damus was not the proper remedy ; that would not annul but simply ignore the order. The order must first be annulled by a direct proceeding — ■ that is, by certiorari. Such is the remedy when a court has entered judgment or made an order in excess of its jurisdiction.* I assume that the order dismissing the appeal was appealable. It was certainly a final order, and it has been held in that state that an order of a county court dismissing an appeal from a justice's court in an action of forcible entry and detainer was a final judgment and appealable. The fact that the proceeding was that of a 1 Coburn v. Mahaska County, 4 G. ing Co. v. Superior Court, 65 Cal. Gr. (Iowa), 343. See also Abney v. 187. Clark, 87 Iowa, 727. 3 Clary v. Hoagland, 5 Cal. 476. 2 Slavonic, etc. Benefit Asso. v. ^Levy v. Superior Court, 66 CaL Court, 6a Cal. 500; Golden Gate Min- 293. § 413.] CEETIOEAEI. 665 superior court proceeding according to the course of the com- mon law makes it exceptional, but only in that respect.^ It must follow that the ground upon which it was held that cer- tiorari would lie was that the remedy by appeal was not suffi- ciently speedy or adequate. Again, it is stated that to adjudge a party guilty of contempt of court for which he is fined and imprisoned is to adjudge him guilty of a specific criminal offense. The imposition of a fine is a judgment in a criminal case, and the jurisdiction of the court to impose and punish for such an offense is reviewable by this court on habeas oorjpus^ or on certiorari^ and on appeal.* Sec. 413. Rule in Idaho, Nevada and other states. — In Idaho the statute is similar to that of California. It "was there held that there were three essential conditions that must be present to warrant the allowance of the writ, and the writ would not issue if any one of the three were wanting, viz. : 1. That the court or judge below exceeded his jurisdiction. 2. That there was no appeal provided by law from the judg- ment or decision of the court. 3. That there is no other plain, speedy or adequate remedy.^ The result of such decision is that in that state the right of appeal, irrespective of the ques- tion whether it is a plain, speedy or adequate remedy, is conclu- sive against the allowance of the writ. In E"evada, however, if the remedy by appeal is not adequate, certiorari will lie,^ and such is the rule which generally prevails in the several states with respect to inferior courts and tribunals.' It was stated by the United States supreme court that, when sought as be- 1 ZoUer V. McDonald, 33 Cal. 136. ePaul v. Armstrong, 1 Nev. 82; 2 Citing People v. Turner, 1 Cal. Wiggins v. Henderson, ^ Pac. Rep. 144; Ex parte Rowe, 7 Cal. 181. 459. 3 Citing Ex parte Cohen, 6 Cal. 319; ' Memphis, etc. R. Co. v. Brannum, Batchelder v. Moore, 43 CaL 413; Ex 96 Ala. 464; Highway Com'rs v. Har- parte Smith, 53 Cal. 304. per, 38 111. 103; State v. Evans, 13 * Citing People v. O'Neil, 47 Cal. Mont. 339; Union Steamboat Co. v. 110; Ex parte Hollis, 59 CaL 403; Buiialo, 83 N. Y. 351; State v. Rose Baker v. Superior Court, 71 Cal. 583. (N. Dak.), 58 N. W. Rep. 514; Cham- In these cases the court was not pro- pion v. Minnehaha County, 5 Dak. ceeding according to the course of 416; Golding v. Jennings, 1 Utah, the common law. 135. 6 People V. Lindsay, 1 Idaho, 399. 566 SPECIAL EEMEDIES. [§ 414. tween private persons, the general rule is that the writ of cer- tiora/ri will be granted or denied in the sound discretion of the court on special cause or ground shown, and will be refused when there is a plain and equally adequate remedy by appeal or otherwise. It appears that a circuit court of the United States had made an order appointing a receiver and granted an injunction against interfering with his management of the property confided to him. The right of appeal was given by act of congress to the circuit court of appeals from the final decree of the circuit court in such suit, and this even though the question of the jurisdiction of the circuit court was involved, and such right of appeal could be exercised with respect to the orders in question, or an order refusing to set them aside and dissolve the injunction. Hence the application for the writ of certiora/ri was denied.' That such is the rule recognized by the state courts quite generally has been stated, and it applies not- withstanding the time allowed by statute for taking an appeal has elapsed.^ "What was stated in another case, to the effect that if the time for appeal had elapsed cerUorari would lie, had reference to a case determined in justice's court. It would seem from such statement that if the right of appeal still exists from judgments in such courts, even where the court has determined without jurisdiction, that appeal is the proper remedj' to re- view questions of law. If the right does not exist, the question of jurisdiction may be reviewed by certiorari? In California, however, the writ does not lie to a justice's court where there is a right of appeal. Sec. 414. Distinction between courts of record and those not of record. — A distinction must be noted here between courts of record and those not of record in the application of the rule. The writ does not ordinarily lie after judgment where there is a remedy by appeal or writ of error, even to review jurisdictional defects of superior courts or those courts which proceed according to the course of the common law. State- ments sometimes occurring in text-books and opinions of judges 1 In re Tampa Suburban E. Co., 168 3 Comstock v. Clemmens et aL, 19 U. S. 583. Cal. 78. 2 Faut V. Mason, 47 Cal. 7; Bennett V. Wallace, 43 CaL 25. § 414.] CEETIOEAEI. 567 are oftentimes misleading, such as " that the writ will not lie where there is another adequate remedy." In fact, courts gen- erally only so hold where it is sought to review proceedings of courts of record after final judgment by means of such writ, and in some cases determinations of inferior tribunals. The rule which prevails in most of the states where the common- law writ is recognized in all its integrity, uninfluenced by statutory regulations or provisions, is that, after final judgment in a court of record proceeding according to the course of the common law, the only remedy is by appeal or writ of error. But where the court below is not a court of record or does not proceed according to the course of the common law, the proper remedy is by certiorari} Such was the rule in England. The reason given by its courts, and some which I have cited in the states, for the distinction noted, is that, as to the latter, no writ of error would lie. Appeal, however, is now generally allowed . from the judgments of such courts ; yet, notwithstanding the existence of such right, the remedy to reach jurisdictional de- fects is by certiora/ri. The mere taking of an apppeal is, in many cases, an appearance, and may constitute a waiver of ju- risdictional defects with respect to the person, and if a party should be compelled to confer jurisdiction where none existed, thus preventing an impeachment of the judgment for want of jurisdiction, it follows that the right of appeal is not an ade- quate remedy or any remedy at all. Of course, we are speak- ing with reference to judgments of courts, and not of other tribunals exercising in the particular instance judicial powers. It cannot be said, however, that the rule stated prevails in all jurisdictions, or is of universal application where recognized. Instances are quite numerous where the rule has been ig- nored. Thus in California, where the superior court — a court of record — was proceeding according to the course of the com- mon law, and extended the time in which a defendant might plead until ten days after the remittitur in another action then pending on appeal in the supreme court, when the time was limited by statute to thirty days, the supreme court not only 1 Cooke et al. v. Petitioners, 15 Pick. Paine v. Leicester, 23 Vt. 44; Parks 234; Wardsworth v. Sibley, 38 Wis. v. Boston, 8 Pick. 317. 484; People v. Betts, 55 N. Y. 600; 568 SPECIAL EEMEDIES. [§ 414. allowed the writ of certiorari to review such order, but held that, in so far as it attempted to extend the time to plead more than thirty days, it was in excess of the jurisdiction of the su- perior court, and modified the order.' It is manifest here that the error of the supreme court was twofold : first, in allowing and correcting the error upon the writ, and second, in decid- ing that the error committed by the superior court was juris- dictional. "We have seen that it has been uniformly held that a sentence for a term in excess of that prescribed by law is but error, and may be reviewed upon writ of error, or the defend- ant, after having satisfied the lawful part of the sentence, may be discharged on habeas corpus. It is true the excess of such a sentence is beyond the lawful exercise of the power of the court, but it is not every excess in the exercise of power that will render a proceeding absolutely void, nor will the courts ordinarily, only upon appeal or writ of error, separate the un- lawful from the lawful part. The court evidently proceeded upon the theory that upon a common-law writ the proceedings of all courts, superior as well as inferior, courts of record as well as those not of record, courts proceeding according to the course of the common law as well as those proceeding other- wise, to the extent that every act in the progress of the trial which was in excess of the power of the court was subject to review. As stated elsewhere (sec. 427), this is a mistake. If the writ is a proper process for correcting the alleged error of the court, it may be resorted to, at any stage of the cause, to bring up for review any erroneous decision the court might make. It is true the court states in the case under considera- tion that the remedy by appeal was not an adequate remedy, yet the office of the writ is not to reach the common-law pro- ceedings of such courts. Inferior courts, in some of the eastern states, are courts of record, such as courts of justice of the peaqe and police courts. It was held in Massachusetts that the police court of Lowell was not only a court of record, but also that, in general, its proceeding was according to the course of the common law. They state: "In receiving complaints and issuing warrants for the seizure of intoxicating liquors ille- gally kept, they proceed according to the course and principles 1 Baker v. Superior Court, 71 CaL 58a § 415.] OEETIOEAEI. 5C)& of the common law; any decisions of the court may be appealed from. Though the cause for the search and the seizure did not exist at common law, but is created by statute, this is immate- rial. The procedure to enforce the statute is according to the course of the common law, in the same manner as are proceed- ings by indictment and trial for any new offense created by statute." ^ Where there is no right of appeal from the judgments of superior courts, then the writ will lie to review their orders or proceedings which have been taken before judgment, which order or proceeding is not of itself the subject of appeal.^ Thus, the writ was allowed where in an action the district court ap- pointed a receiver, where such power was not conferred or in- herent in the court to annul such order of appointment. The grounds stated were that a direct appeal from the order made before judgment appointing a receiver is not allowed, nor is such an order reviewable upon appeal from the final judgment. In subsequent pages the subject of the allowance of the writ to review proceedings of superior courts taken before judgment is discussed.' Sec. 416. Courts of record proceeding out of the course of the common law. — Where the superior court is proceeding out of the course of the common law, it seems that the courts exer- cise a discretion with respect to allowing the writ where there exists a right of appeal. The Michigan court, after affirming that under the constitution appellate jurisdiction was vested in that court over inferior tribunals not proceeding according to the course of the common law, said: "But while the power exists, it has been considered as one which would be exercised sparingly in cases where other adequate remedies can be had ; and where a decision can be taken up by appeal, and on that appeal the jurisdictional questions as well as those arising on the merits can be fully disposed of, a certiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it." * The facts were that the defendant in error had obtained a judgment of restitution be- 1 Lynch v. Crosby, 134 Mass. 313. 285. Compare Goodale v. District 2 French Bank Case, 53 Cal. 495; Court, 56 Cal. 26. Bolman v. Superior Coui-t, 54 Cal. 3 Fi-ench Bank Case, 53 Cal.-495. ^FarreU v. Taylor, 12 Mich. 113. 570 SPECIAL EEMEDIES. [§ 416. fore a court commissioner against the petitioner as holding over under a mortgage foreclosure (the proceeding being had under a statute giving a summary remedy in such case). The pro- ceeding was to review the action of such court commissioner. It will be observed that he was classed as an inferior tribunal. He probably was a judge at chambers, part and parcel of the circuit court, but proceeding in a summary manner under spe- cial statute authority. It should, however, be stated that this court is one which holds that upon a common-law writ, when addressed to a court, something more than the question of juris- diction may be inquired into ; that the inquiry may extend to ■errors of law.^ Note to Sec. 415. — In Wisconsin, where a county judge has the author- ity specially conferred by statute to appoint commissioners to award dam- ages for the taking of lands by railroad companies, it was held that his powers in this respect were special and statutory, and the general provis- ions of law relating to appeals from his judgments had no application. That the proper remedy in case he refused to appoint was mandamus, and if he should make such appointment without authority, the appropriate remedy was by certiorari. Western Union R. Co. v. Bickson, 30 Wis. 389. Sec. 416. Writ not a substitute for appeal or writ of error. From the doctrine which prevails as stated, it necessarily fol- lows that the writ, when addressed to courts, will not serve the purpose of an appeal or writ of error.^ Yet it would seem from those cases which hold that errors of law may be corrected or reviewed, that the writ to such extent does serve the purpose of a writ of error. As stated in a previous section, stat?utes in many states have so corrupted the original common-law writ that care must be exercised in examining the subject that we are not misled. By some courts it is declared that the writ is in the nature of a writ of error addressed to the inferior tribu- nal whose procedure is not according to the course of the com- mon law.' That in its office of removing final adjudications for review, it possesses all the characteristics of a writ of error. 1 Jackson v. People, 9 Mich. 111. v. Windon, 10 W. Va. 180; Tiedt v. i^Baskins v. Wylds, 39 Ark. 353; Carstenson, 61 Iowa, 334; Hitchcock Gaither v. Watkins, 66 Md. 576; Ex v. Superior Court, 73 Cal. 295. parte Pierce, 44 Ark. 509; State v. 3 Farmington R. W. P. Co. v. Berk- .Stewart, 5 Strobh. 31 (S. C); Hay v. shire Co., 113 Mass. 213. Piston, 2 Leigh, 708, (Va.); Meeks § J:16.] CEETIOEAEI. 571 It performs the same office as to inferior summary tribunals "which a writ of error does to an inferior court of record.' Again it was said : " The legitimate office of the writ is to enable the court to review and correct the decisions and final determina- tions of inferior officers and tribunals, and not to invest the court with the right to exercise the powers thus conferred by statute." ^ Such statements are correct when applied to inferior boards and officers exercising judicial power, as appears in sub- sequent pages, but that they are applicable in all cases to pro- ceedings by inferior courts is not the rule. The true rule as ■applied to such courts, though not the rule in all jurisdictions, is that stated by the "Wisconsin court in Tallmadge v. Potter, 12 Wis. 318, as follows: "The office of a common-law writ of ■certiorari is to confine inferior tribunals within their jurisdic- tion, to prevent them from exercising powers not delegated to them, and not to correct every error they may commit in exer- cising the powers that are delegated." The rule of the Ten- nessee court is broader: * "It {certiorari) is the method adopted by which circuit courts as courts of general jurisdiction, both civil and criminal, exercise control over all inferior jurisdic- tions, however constituted, and whatever the course of their proceedings, as well where they have attempted to exercise a jurisdiction not conferred, as where there has been an irregular or erroneous exercise of jurisdiction." Such being its office, it is apparent it serves the purpose of a writ of error. The dis- tinction made by the supreme court of Maine between such a writ and a writ of error was stated to be : " The latter lies where the proceedings are according to the course of the common law ; in other cases certiorari is the proper writ. A writ of error is a writ of right; a writ of certiorari is not. It is a matter of sound discretion to grant or refuse it. There are several other points of difference. They are alike in this: that no one but a party to the record, or one who has a direct and immediate interest in it or is privy thereto, can maintain either of those writs." * This distinction is far from complete, though in the main it may have been when rendered. Appeals are now iStonev. New York, 25 Wend. 167. ^Bath Bridge Co. v. Magoun, 8 2 Devlin v. Piatt, 11 Abb. Pr. 400. Me. 293. 3 Wilson V. Lowe, 7 Coldw. 156. 572 SPECIAL EEMEDIES. [§ 417. allowed in many cases 1:r®ni decisions of inferior boards and officers, which supersedes a resort to the remedy by certiorari. Sec. 417. Iowa statute. — The Iowa statute provides that the writ may be granted not only where there is an excess of ju- risdiction, but where the tribunal, board or officer is otherwise acting illegally. It was stated with reference to this statute, that " if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally ; but if a discretion is conferred upon the inferior tribunal, its exercise cannot be illegal." It is plain that the statute does not contemplate that the decisions of the in- ferior tribunals upon the questions of fact may be reviewed by certiorari. The distinction between erroneous proceedings, which are termed illegalities, and erroneous decisions of fact, is obvious. The code of that state (sec. 3222) also provides that "the trial in a proceeding by certiorari may be on the record, proceedings and facts certified by the return to the writ> and such other testimony, oral or written, as either party may introduce pertinent to the issue." It was held that such pro- vision was not intended to extend the remedy so that inquiry may be made into matters other than the jurisdiction and legality of the proceedings of the inferior court ; that it was not the purpose of the statute to change the office of a certio- rari so that it will operate as an appeal wherein causes may be tried de novo} The proqeeding in question was brought to review the action of a board of supervisors in laying out a highway. We shall see that without such a statute, in cases of bodies other than established courts, errors of law are sub- ject to review by the writ. The statute merely extended that rule to inferior courts. Where, however, the question presented by the writ was whether the supervisors were authorized to submit the question of relocation of a county seat to a vote of the electors, and that power depended upon the number of qualified signers to a petition, and the bill of exceptions re- cited that the court, although requested so to do by plaintiffs, did not examine, or cause to be examined, the petition or re- monstrances, to ascertain how many names of persons who iTiedt V. Carstensoii, 61 Iowa, 334. § 41 T«.] CEETIOEAEI. 573 signed the remonstrances were also upon said petition, and thereby determine whether the said petition had the majority, it was said: "The court seems to have relied simply upon the statements of the defendants made to their return, and to have ignored altogether the evidence sent up with their return, Avhereby the truth or falsity of their statement might have been determined. It was the duty of the court to have exam- ined the evidence submitted and determine whether it showed that the signatures properly in the petition were a majority of all the names submitted.'" The same question was before the supreme court of I^eyada, and it was there determined that whether the action of the board was based upon strictly legal and sufficient evidence was not within their province to in- quire.^ Sec. 41 Ya. Trial de novo. — It has been stated by a text- writer that in some of the states (Alabama, Colorado, Iowa, Illinois, Mississippi, North Carolina, Tennessee and Texas) the writ of certiorari has been modified by statute to such an extent that its operation is in the nature of an appeal, and upon such writ there is a trial de novo in the superior court. This expression of the rule created by statute is hardly ac- curate. It. may be so far as Alabama, Mississippi and Texas are concerned. "V\''e have seen it is inaccurate with respect to Iowa. In the other states named, the rule, as I understand it, is that, where a party has lost his right of appeal without fault or negligence on his part, he may, by means of the statutory writ, obtain a trial de novo in the superior court.' In some jurisdictions there is no trial de novo upon the merits, nor are the merits examined, in the absence of illegalities or error, by the superior court granting the writ. The record and sometimes the evidence is reviewed, and the court may render a new judgment. In Texas it seems that the writ may issue to re- view proceedings where it is made to appear that injustice has 1 Stone V. Miller, 60 Iowa, 343. lemore v. Dazey, 12 111. 144; William- 2 State v. Humboldt County, 6 Nev. son v. Boy kin, 99 N. C. 238; Cox v. 100. Pruett, 109 N. C. 487; Hardin v. Will- 3 Small V. Bischelberger, 7 Colo. iamson,5 Heisk. (Tenn.) 393; McMur- 563; Cushman v. Rice, 3 111. 566; Gal- ray v. Milan, 3 Swan (Tenn.), 176. 57i SPECIAL EEMEDIES. [§§ 418, 419. been done. In cases of default, however, a good cause must be shown for not appearing and making a defense.^ Sec. 418. Statutes of several states — Alabama.— The Ala- bama code, section 2405, provides for a trial de novo on appeal or writ of certiorari from justices' courts. By another provis- ion of the code (sec. 3166), it is declared that the common- law writ is not repealed, but left in full force; that it was the true intent of chapter 13 to provide a plain, more speedy and less expensive mode of procedure in all cases to which it ap- plies. Sec. 419. Mississippi. — The Mississippi code,- section 2358, provides that " all ca§es decided by a justice of the peace may, within six months thereafter on good cause shown, by petition supported by aiBdavit, be removed to the circuit court of the county by writ of certiorari, which shall operate as a super- sedeas, the party in all cases giving bond with security, as in oases of appeal from justices of the peace ; and in any cause re- moved by certiorari under this act, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. In case of an affirm- ance of the judgment of the justice, the same judgment shall be given as on appeal. In case of reversal the circuit court shall enter such judgment as the justice ought to have entered, if the same is apparent, or may then proceed and try thq cause anew on its merits. The clerk of the circuit court on the issu- ance of a certiorari shall issue a summons for the party to be aifected thereby." Section 1344 of the code provides that the circuit court of the proper county, or the judge of such court in vacation, may award a certiorari for the purpose of examining any adjudication made in any application hereby authorized (summary proceedings against tenants). Upon such certiorari the circuit court shall have power to examine into the correct- ness of all the decisions of the officer before whom the proceed- ings were had, upon questions of law only, and also to require the return of such parts of the proceedings as are material to an examination of such questions upon their merits. Whenever 1 May V. Lewis, 4 Tex. 1. §§ 420-422.] CEETioEAjBi. 675 any such proceedings brought before the circuit court by cer- tiorari shall be reversed or quashed, the court may make res- titution to the party injured, with costs, and may make such orders and rules and issue such process as may be necessary to carry its judgment into efPect; and if the proceedings shall be reversed or quashed, the tenant or lessee may recover against the person making the application for such removal any dam- ages he may have sustained by reason of such proceedings, with costs, in an action. Sec. 420. Missouri. — The Missouri code, in cases of forcible entry and detainer (sec. 5126), provides that proceedings be- fore a justice may be removed into the circuit court by cer- tiorari^ at anv time after the service of summons or making publication, as provided, and before the day of trial. Section 5127 provides that the writ will not issue unless application is made therefor before the day of trial, and section 5129 for a trial de novo. Sec. 421. Georgia. — Georgia constitution, article 6, section 4, paragraph 5 (Code, sec. 5153), declares that the superior courts shall have power to correct errors in inferior jurisdictions by writ of certiorari, which shall only issue on the sanction of the judge. Section 4049 of the code provides that " the writ of certiorari will lie for the correction of errors committed by justices of the peace, corporation courts or councils or any in- ferior judiciary, or any person exercising judicial powers." Sec- tion 4052 provides the manner for obtaining the writ from inferior tribunals. It was held that the writ is a constitu- tional as well as a statutory remedy. That the only power and authority given by the constitution to the superior courts is by the writ. The legislature has no power to provide other means.^ Sec. 422. Massachusetts. — The Massachusetts statute (sec. 3, ch. 150) clothes the supreme court with general superintend- ence, of all courts of inferior jurisdiction to correct and prevent errors and abuses therein, when no other remedy is specially provided, and may issue writs of certiorari, mandamus, etc., and all other process to courts of inferior jurisdiction, corporations I Maxwell v. Tomlin, 79 Ga. 570. 57G SPECIAL EEMEDIES. [§ 422. and individuals, necessary to the furtherance of justice and the regular execution of the laAvs. Section 7, chapter 186, provides that writs of certiorari to correct errors in proceedings that are according to the course of the common law shall be issued from, and returnable to, the supreme judicial court, according to the practice heretofore established, and subject to such fur- ther regulations as shall be made from time to time by the general rules of the court. " Sec. 8. Where proceedings are brought up by the writ, the court may quash or affirm such proceedings, or enter such judgment as the court below should have rendered; or may piake such order, judgment or decree in the premises as law and justice may require." These stat- utes were construed in Farmington M. W. P. Go. v. Commis- sioners, 112 Mass. 206. It was there declared that a writ of certiorari (when nOt used as auxiliary to any other process) is in the nature of a Avrit of error, addressed to an inferior court or tribunal whose procedure is not according to the course of the common law. After the writ has been issued and the rec- ord certified in obedience to it, the court is bound to determine, upon an inspection of the whole record, whether the findings are legal or erroneous ; but the granting of the writ in the first instance is not a matter of right, and rests in the discretion of the court ; and the writ will not be granted unless the peti- tioner satisfies the court that substantial justice requires it. A writ of certiorari lies only to correct errors in law, and not to revise a decision of a question of fact upon the evidencJe intro- duced at the hearing in the inferior court, or to examine the sufficiency of the evidence to support the finding, unless objec- tion was taken to the evidence, for incompetency, so as to raise a legal question. Speaking with reference to the case before the court, it was said: " The refusal of the county commission- ers to abate a tax cannot be revised upon certiorari, except for an erroneous ruling in matter of law. The legislature has evi- dently considered the county commissioners a more appropriate tribunal to decide questions of fact in the matter of taxation than a court of common law or a jury. The provision of the statute , . . empowering the court, upon certiorari, to enter such judgment as the court below should have rendered, or make such order, judgment or decree in the premises as law § 423.] CEETIOEAEI. 577 and justice require, does not enlarge the authoritj?^ of the court to examine the matters passed upon below, but merely enables it, after examining the case according to the rules of law, to embody the result in a new judgment, framed so as to secure the rights of all parties, instead of being limited, as it was be- fore the statutes were amended in this respect, to quashing or affirming the judgment below. If a question of law is raised at the hearing before an inferior court whose proceedings are not according to the course of the common law, and not the subject of appeal or exception, it is proper to state in the rec- ord the facts proved and the ruling in matter of law upon them ; and if this is not done the inferior tribunal may be re- quired by this court to certify, together with its record, a state- ment of the ruling made upon the point set out in the petition for a certioTOA'i. But whenever the case was Avithin the juris- diction of the inferior tribunal, the petitioner for a writ of cer- tiorari cannot be permitted to introduce evidence to contradict or vary its statement in its record or return of its proceedings and decision." Sec. 423. Maine. — The statutes of Maine regulating the use of the writ of certiorari are sections 3 and 4 of chapter 77 and section 13 of chapter 102. By the provisions of the former the supreme court has the general superintendence of all inferior courts for the prevention and correction of errors and abuses, where the law does not expressly provide any remedy; and it may issue writs of error, certioraH, mandamus, prohibition, quo wa/rranto, and all writs and processes necessary for the furtherance of justice or the execution of the laws. The latter section provides that all writs. of certiorari to correct errors in the proceedings not according to the course of the common law shall be issued from the supreme judicial court according to the practice heretofore established, subject to such further reg- ulations as are made from time to time by such court. These statutes received a construction, and a mode of practice was declared, in Levant v. County Commissioners, 67 Me. 429. It was said: "A writ of certiorari is in some respects similar to a writ of error, and in others dissimilar. The former, unlike the latter, is not a writ of right, and it lies where the proceed- 37 578 SPECIAL REMEDIES. [§ 423, ings sought to be revised, like those now under consideration, are not according to the course of the common law. Generally, a writ of certiorari is grantable only at the sound discretion of the court, where it appears that otherwise some injustice would be done. If the tribunal whose record is sought to be quashed has jurisdiction, and the error assigned mere matter of form, and substantial justice was done, a denial of the writ is no vio- lation of the party's essential rights. If, however, the tribunal had no jurisdiction in the premises, the court, on petition of a proper party, will not refuse the writ, the wrong and injustice in such cases consisting in the assumption and exercise of an authority not conferred by law." After stating the practice proper where the hearing is preliminary to the writ, as in Mas- sachusetts, the court proceeds to state : " The petition should set out, among other things, such of the proceedings as the pe- titioner desires to have revised, bearing in mind that the writ only deals with errors in law, and not with the evidence, un- ' less some question of law is raised in relation thereto. JSTotice must be served upon the tribunal to which the writ, if granted, will be addressed." Speaking further with reference to the return or answer: "The respondent tribunal should file an an- swer, under oath, setting out therein (when not annexed to the petition) a copy of the record. If the original record be de- fective, it may be amended by the tribunal in accordance with the facts at any regular session. If it do not contain a full, detailed statement of the facts (not evidence) proved, find the rulings thereon, so far as the points complained of in the pe- tition are concerned, so as to enable this court to determine the questions of law raised, such omissions should be supplied in the answer. When completed, and signed and sworn to by the members of the tribunal whose proceedings they are, the answer, being in the nature of a return, is conclusive in all matters of fact within its jurisdiction. . . . "Whenever the case was within the jurisdiction of an inferior tribunal, it is not competent for the petitioner to contradict the record or return; but where extrinsic evidence is introduced by the re- spondents tending to show that substantial justice does not require the proceedings to be quashed, then the petitioner may introduce like evidence in rebuttal." §§ 424r-4:27.] CEETioEAEi. 579 Sec. 424. Termont. — In Vermont, section 11, chapter 30, Gen- eral Laws, confers the power upon the supreme court to issue writs of certiorari and the other writs there named, only when they shall be necessary to the furtherance of justice and the regular execution of the laws. Hence the necessity for the party asking to have the writ issued to show that some sub- stantial injustice has been done by the action of the county court.' Note. — The writ is abolished in Kansas, Nebraska, and in certain cases in New York. Other means of review, however, are provided. The writ has not been used in Connecticut. Sec. 425. Michigan. — ^In Michigan, by statute, judgments rendered before justices of the peace may be removed into the circuit or district courts by means of a writ of certiorari. The party has a right to this writ, although another and more com- plete remedy may be had by special appeal.^ Sec. 426. General rule wliere there is not another ade- quate remedy. — So far the discussion has been directed to what may be termed a qualification of the rule, in substance, that the rule or right does not prevail where there exists an- other adequate remedy. The converse of the proposition is the rule, and that is, that where there is no remedy, either by ap- peal or otherwise, the proper means of reviewing the proceed- ings of inferior courts or tribunals is by certiorari? Sec. 427. Writ only reaches jurisdictional defects of courts. The common-law rule, as we understand it, as generally recog- 1 Chase v. Town of Rutland, 47 Vt. v. Ti-ue, 19 Me. 46; Williamson v. Car- 393. man, 1 Gill & J. 196 (Md.); Mendon 2 Proper v. Conkling, 67 Mich. 244. v. Worcester, 2 Allen, 463 (Mass.); Other statutes relating tp this writ Adams v. Abram, 38 Mich. 302; State and their construction will be found v. Leftwich, 41 Minn. 42; Snoddy v. post, sec. 436. Pettis County, 45 Mo. 361 ; Holmes v. ■! Appling V. Bailey, 44 Ala. 334; Morris, 16 N. J. L. 536; People v. Ex parte Couch, 14 Ark. 337; Baker Betts, 55 N. Y. 600; People v. Walsh, V. Superior Court, 71 Cal. 583; Rogers 67 How. Pr. 484; State v. Jeflfei-son, V. Bennett. 78 Ga. 707; Mason v. Spe- 66 N. C. 310; Hall's Appeal, 56 Pa, St. cial Drainage Dist, 134. 111. 330; 238; Ridgway v. Hinton, 25 W. Va. Hawkeye Ins. Co. v. DutBe, 67 Iowa, 558; Poe v. Marion Machine Works, 175 ; State v. Judges, 32 La. 1256 ; Dow 24 W. Va. 520. 580 SPECIAL BEMEDIES. [§ 427. nized in this country, is that the writ, with respect to being a remedy to review judgments of courts, only issues to reach jurisdictional defects and those committed only by courts not of record, or those of courts of record not proceeding in the course of the common law, and it is immaterial in such cases that there may also exist a remedy by appeal. Its purpose is to confine such courts within the limits of their powers. The writ has been issued to a court of record which proceeded ac- cording to the course of the common law to review its proceed- ings.^ But the use of the writ in such cases is the exercise of appellate jurisdiction, and, aside from the mischievous conse- quences that might result, is contrary not only to the well- settled principle that the writ will not be allowed where the party has an adequate remedy by appeal or writ of error, even to review jurisdictional defects, but to the office and purpose of such a writ. The supreme court of Wisconsin, in the later case of Ghitt&iiden v. State, 41 "Wis. 285, condemned such prac- tice, and states that in the cases referred to — Hauser v. State and Martin v. State — the question as to the regularity or cor- rectness of the practice was not discussed or questioned by coun- sel, and the point was passed sub silentio by the court. The court gives abundant reason for its criticism upon the practice adopted in those cases, aside from the one stated, to wit: the existence of a remedy by appeal or writ of error, one of which is that, if the circuit court was proceeding in the cause without jurisdiction, the appropriate writ to be applied for from that court would seem to be the writ of prohibition and not a com- mon-law certiorari. The court, in speaking of the inconvenience and the mischievous consequences that might follow the allow- ance of the writ under such circumstances, state: " If the writ is a proper process for correcting the alleged error' of the cir- cuit court in refusing to dismiss the proceeding, it might be re- sorted to at any stage of the cause to bring up for review any erroneous decision which the court might make." The same question was before the supreme court of Minnesota {State v. JVoonan, 24 Minn. 124), several reasons being given why the writ would not lie ; among others, that the law provided a rem- edy by appeal or writ of error after judgment, which was ample 1 Hauser v. State, 33 Wis. 678; Martin v. State, 35 Wis. 294 § 4:27.] CEETIOEAEI. 581 and exclusive; and another, the mischievous consequences that might follow if the writ vs^ere sustained in such cases. Among the reasons given was that the errors complained of were not jurisdictional. The statement made in the opinion that when the writ was addressed to superior courts proceeding in the course of the common law, only errors going to the jurisdic- tion would be reviewed, evidently was not intended to be con- sidered that even such errors were subject to review upon a writ addressed to such a court. In the case to which, they refer and distinguish {Minn. Cent. E. Co. v. McJVamara, 13 Minn. 608), the court was not proceeding according to the course of the common law. The doctrine seems to be well settled that upon a writ ad- dressed to a court of record, when proceeding according to the course of the common law, if allowed, its judgment will not be reviewed though it proceeded without jurisdiction, when the party has a remedy by appeal or writ of error.^ In the first case cited it is said, " The general rule as laid down in the books is, that a common-law certiorari will not issue where a party has another adequate remedy ; and it is certainly a novel application of such a writ to make it perform the office of a writ of error to bring up for review a final judgment of a court of record." They state that in Wisconsin, where the writ is issued to a justice of the peace, it is only jurisdictional ques- tions which will be examined, such being an inferior court not of record. They further state : " We know of no case which holds that it is a proper process to bring up for review the final judgment of a court of record proceeding according to the course of the common law. The remedy by appeal or by writ of error has been deemed the proper remedy or mode of pro- cedure to use for bringing before the appellate court such judg- ments." In the other case cited, the Massachusetts court uses the following language: "The question is. What is the legal and proper remedy or process for the purpose of correcting any errors in the proceedings after final judgment rendered, or the final decision of the cause? And it seems to be well set- tled by the English authorities, that after the' final judgment in a court of record proceeding according to the course of the 1 Wards worth v. Sibley, 38' Wis. 484; Cooke v. Petitioners, 15 Picfc 334. 582 SPECIAL EEMEDIES. [§ 4:2T. common law, the only remedy is by writ of error. But where the court below is not a court of record, or does not proceed according to the course of the common law, no writ of error will lie, and the proper remedy is by certiora/riP The ques- tion of the exercise of original jurisdiction by the court of last resort was not considered in the cases referred to. The ques- tion of practice and power under the common law was involved. The constitutions of many states have clothed such courts with a general superintendence of all courts of inferior jurisdiction, to correct and prevent errors and abuses therein, when no other remedy is expressly provided, and for this purpose to issue writs of error, certiorari, mandamus, etc., necessary to the furtherance of justice. The provision in the constitution of all the states where it exists may not be quite so comprehensive. Such is the provision of that of Massachusetts, and substan- tially that of Minnesota. It was stated by the supreme court of Massachusetts that " this broad and general authority was doubtless conferred for the purpose of enabling that court to bring before them any proceedings of judicial tribunals where there was no special mode prescribed for revising and correct- ing them." Of course the proceedings of superior courts could not be reviewed by virtue of such provision where there ex- isted other remedies for review ; and as the right to review by cerUorari, where such remedies do not exist, is given by the common law, and an appeal or writ of error lies from the final order or judgment in such cases, there can be no occasion for the exercise of such power. The Massachusetts court gave to such provision a very liberal construction. The error com- plained of was an erroneous decision of an inferior tribunal (county commissioners) relating to the burden of proof, and the effect to be given to the act of selectmen in laying out a town way which the petitioners sought to have revised by the selectmen, and it was held, there being no right of appeal or other mode of reviewing the error of the commissioners, the supreme court, in the exercise of its original jurisdiction, could revise the proceedings and correct the error by certiorari} The constitution of "Wisconsin is not precisely the same. Supervisory control over inferior courts is given, and original 1 Mendon v. County Commissioners, 3 Allen, 463. § 428.] CEETIOEAEI. 583 jurisdiction to award writs of mandamMs, habeas corpus, cer- tiorari and other writs is expressly conferred. The supreme court of that state, considering the effect of such provision, state : " There can be no doubt about the jurisdiction of this court to grant the writ in a proper case. The constitution refers to the writ as it was used and applied in practice when the constitu- tion was adopted, and did not intend to give it a scope or object different from its original and appropriate function. Wherever, when the constitution was adopted, a common-law writ of cer- tiorari was an available and appropriate process to bring up for review the proceediiigs of an inferior court or tribunal, there it can now be resorted to. But we think it would be contrary to all practice and all precedent to make it a substitute for a writ of error or appeal, to bring up for review the final judgments of courts of record proceeding according to the course of the common law." ' In cases of commitment for contempt, and other cases where the proceedings are in their nature special, the writ has been allowed, though there was provided a remedy by appeal or writ of error ; but such cases do not proceed ac- cording to the general course of the common law, but specially in a manner applicable to such a proceeding. With respect to the application of the rule to proceedings of other bodies or officers, the writ may issue where they are acting without or in excess of their jurisdiction, and also to review and correct illegalities, and to some extent irregularities, in their proceed- ings, when proceeding in the exercise of their jurisdiction, but in no case can it extend to review the merits of the contro- versy or control discretionary action. This is a subject of dis- cussion in subsequent pages. Sec. 428. Distinction between error and want of jurisdic- tion. — The distinction between error and lack of jurisdiction is illustrated in the following cases : A writ was issued to the municipal court of one of the counties in Wisconsin, such court being a court of record, and before final judgment therein. The question raised was whether a corporation could be the object of a criminal libel. A motion was made to quash the informa- tion, which was denied, whereupon the writ was issued. It was held that the question raised was not jurisdictional to the ex- 1 Wardsworth v. Sibley, 38 "Wis. 484. 584: SPECIAL BEMEDIES. [§ i29'. tent that it could be reached by certiorari. The reasoning was : Conceding for the sake of argument that a corporation could not be the object of a criminal libel, that the municipal court had jurisdiction to' hear, try and determine criminal prosecu- tions for libel. This necessarily includes jurisdiction to hear and determine motions to quash informations therefor, and to determine whether the information in a given case does or does not charge that the accused has committed a criminal offense. Conceding that the decision of the municipal court was erro- neous, the court makes the inquiry, " Is the error a jurisdic- tional one ? " It may be so, they answer, in the sense that no court has jurisdiction to make a wrong decision ; but as they again ask, " Is it a jurisdictional error in the sense which will authorize this court to review and correct it on certiora/rif It is not perceived that this case differs in principle from any other criminal prosecution in which the indictment or infor- mation fails, for any reasop, to show by apt and proper aver- ments that a criminal offense has been committed, or from a civil action the complaint in which fails to state facts sufficient to constitute a cause of action." If the court should decide erro- neously in respect to the sufficiency of such an information or complaint, it could not review the proceeding upon certiorari} Seo. 429. Subject continued. — This conclusion the court seeks to justify by what was held in a prior case. The federal court had rendered a judgment for a penalty for violation of a federal law. The supreme court of "Wisconsin had previously declared the law exacting the penalty to be unconstitutional. In an action of replevin brought in the state court against the marshal, it was urged that, the act having been declared void, the judgment of the federal court was void, as being without the jurisdiction of the court. The state court held, however, that the federal court was empowered to exercise its judgment as to the validity of that law ; and having done so, though it arrived at a wrong conclusion, it Avas mere error.^ The de- cision of the court with respect to the jurisdiction of the trial court to determine whether it was a criminal libel was un- doubtedly correct and sustained by the decisions of the federal 1 Hauser v. State, 33 Wis. 678. 2 Arnold v. Booth, 14 "Wis. 180. § 4:30.] CEETIOEAEI. 585 supreme court in several cases.^ The rule which applies is that, where a court has jurisdiction, it has a right to decide every question which occurs in the case; and, whether its decision be correct or otherwise, its judgment, until reversed, is binding on every other court.^ The contention in the case cited was that damages were not recoverable in admiralty for the drown- ing of certain persons in consequence of a collision of vessels. It was held this was a question proper for the court to decide. Where a court has jurisdiction to dismiss appeals for failure to prosecute,' or jurisdiction to hear a motion to set aside the service of a summons in a justice's court upon motion,* an er- roneous decision cannot be reviewed by certiorari. It is error merely. Yet we find that where the court in fact has jurisdic- tion, and erroneously dismisses an appeal on the ground of want of jurisdiction, mandamus will lie to compel the court to proceed to a trial of the appeal.* This distinction has been illustrated in the several chapters of this work. A reference -to the index will locate the particular sections. Sec. 430. Tribunals not proceeding according to the com- mon-law rule. — In most jurisdictions the rule prevails that where the tribunal exercising judicial powers does not pro- ceed according to the course of the common law, the proper remedy to review their proceedings is by the common-law writ of certiorari, and the reason given is that as to their proceed- ings no appeal or writ of error will lie, and therefore there is na other remedy. Yet, as we have seen, the reason for the rule does. not furnish the test in all cases, as the writ lies in many cases, though a review is provided by appeal; and we also find that quite generally the writ issues to courts of a justice of the- peace, where a want of jurisdiction appears of record, notwith- standing a remedy is also provided by appeal.* Note. — Observe the distinction between this subject and that treated under sec. 415. The latter refers to courts of record; this, to inferior tri- bunals. lEx parte Gordon, 104 U. S. 575; < History Company v. Light, 97 CaL Ex parte Hagar, 104 IT. S. 520; Ex 56. parte Pennsylvania, 109 U. S. 174. * gee ch. 29, sec. 599, Mandamus. 2 In Ex parte Gordon, SMpra. 6 Harris v. Barber, 129 U. S. 366; 3 Alexander V. Municipal Court, 66 Gaither v. Watkins, 66 Md. 576-,. Gal. 387. People v. Betts, 55 N. Y. 600; Wards- 586 SPECIAL EEMEDIES. [§ 431. In N"ew York and some of the states the general rule applies to judgments rendered in justices' courts, in effect, that where the statute provides a remedy by appeal certiorari will not lie.' And the same rule prevails in California. It should be stated, however, that if a justice has not jurisdiction of the subject- jnatter, the appellate court does not acquire it by appeal. If the justice has not jurisdiction of the person, an appeal ordina- rily confers it. The right of appeal in such cases does not give a plain, speedy and adequate remedy, hence certiorari in most jurisdictions will lie. The rule stated may be correct when applied to proceedings of such tribunals from whose decision there is no other method of review. In such cases the superior court, as we proceed to state, will look into the proceedings, not only for the purpose of seeing whether the subordinate tribunal kept within its jurisdiction, but also to ascertain whether there was any legal proof of facts authorizing the ad- judication, and whether any rule of law affecting the right of the relator has been violated.^ Notwithstanding this rule was -announced by the New York court without limitation, yet it is very evident to those who have considered the adjudged cases that it only has application to special tribunals as dis- tinguished from courts, unless it may be otherwise provided by statute.' Sec. 431. Inferior courts — Jurisdictional questions ex- amined. — It is true that the supreme court of the United States, and other courts, have stated that a writ of oeriiorari, when its object is not to remove a case before trial or to sup- ply defects in a record, but to bring up after judgment the proceedings of an inferior court or tribunal whose procedure is not according to the course of common law, is in the nature worth V. Sibley, 38 Wis. 484; Har- i People v. Sleight, 3 Hun, 632. bonar V. Eldred (Mich.), 64 N. W. Eep. 2 People v. Smith, 45 N. Y. 773; 1054; Lake Shore & M. S. R. Co. v. People v. Board of Com'rs, 69 N. Y. Hunt, 39 Mich. 469; Winter v. Fitz- 408; People v. Board of Com'rs, 83 Patrick, 35 Cal. 369, and cases cited; N. Y. 358; Poe v. Machine Works, 24 State ex rel. Turner v. Circuit Court, W. Va. 517. See, however, Owens v. 71 Wis. 595; Poe v. Machine Works, State, 37 Wis. 456. ■24 W. Va. 517; Beasley v. Town of 3 Harris v. Barber, 139 U. S. 366; Beckley, 28 W. Va. 81 ; State v. Cohen, Owens v. State, 27 Wis. 456. 18 S. C. 198. § 431.J CEETIOEAEI. 5ST of a writ of error, yet it is only such, so far as ordinary courts are concerned, as to questions of jurisdiction. The judgment cannot be reviewed on other grounds.^ Upon the question of review of judgments of inferior courts, it was stated in a re- cent case by the supreme court of Illinois, speaking with refer- ence to the common-law writ: " It is assumed by the petition that such a writ may be used as a complete substitute for a writ of error or an appeal, and that by virtue of it errors in ruling upon the law and the evidence in the progress of the trial, and in the application of the law to the facts in the rendi- tion of the judgment, may be corrected. This is a grave mis- apprehension. The office of the writ is only to bring before the court awarding it the record of the proceedings of the inferior tribunal, and the judgment must either be that the writ be quashed and a procedendo awarded, or that the rec- ord of the proceedings be quashed. . . . The rulings of the court upon the law and the evidence in the progress of the trial, and in the application of the law to the facts in the rendition of the judgment, cannot be reviewed in this manner. We can only inquire, where a return is made to the writ bringing the record before us, whether the inferior court had jurisdiction, and proceeded legally — that is, followed the form of proceeding legally applicable in such cases, — and not whether it correctly decided the questions arising upon the admission or esclusion of evidence, the giving and refusing of instructions and other like questions during the progress of the trial before the court and jury, and in the overruling of motions for new trials and in arrest of judgment, and the rendition of judgment after verdict, etc. The rulings of a court may be erroneous, and yet it may have jurisdiction and proceed legally. If the posi- tion of counsel for the petitioners were correct, the constitu- tional and statutory limitations would be utterly useless, for in every case it would only be necessary to sue out a certiorari to bring all the rulings of the inferior court before the appel- late court for review. Where decisions upon questions of law and fact arising during the progress of the trial or in the rendi- tion of the judgment, other than such as relate to the question of jurisdiction or the legality of the proceeding, are review- 1 Harris v. Barber, 128 U. S. 366; Owens v. State, 37 Wis. 456. 688 SPECIAL REMEDIES. [§ 431. able upon certiorari, it is by virtue of some statute which has existence in this state.^ Where it was sought by means of the writ to review the ac- tion of a court of justice of the peace in overruling a plea of former conviction, it was said : " This was obviously no error, if error it was, going to the jurisdiction of the justice, and therefore not a matter to be inquired of upon the common-law writ of certiorari, which reaches only jurisdictional defects. The remedy for such errors or mistakes is by appeal. The doc- trine has long been settled in this state, that, when the party aggrieved has any other remedy, it is onlj errors and abuses going to the jurisdiction which will be examined upon this writ." ^ Such is the rule in "West Virginia. It was there stated : " That although the general rule is that inquiry will be made into only such errors and defects as go to the jurisdiction of the court below, and that for all other errors or irregularities the party must resort to his remedy by appeal or writ of error, yet if the inferior tribunal proceeds in a summary manner, and not according to the course of the common law, and there is no remedy by appeal or writ of error, the court will consider other than jurisdictional questions.'" Under the California practice act, which was in force in 1860, and was held to be merely an affirmance of the common law, it was said : " That a common-law writ tries nothing but the jurisdiction, and in- cidentally the regularity of the proceedings upon Avhich the jurisdiction depends. Under no circumstances can the review be extended to the merits. Upon every question except the mere question of power, the action of the inferior tribunal is final and conclusive." * It might be said that the New York courts at first gave a more extended application to the writ. It was stated that the superior court had the power at common law to review the proceedings of all inferior tribunals to pass upon the jurisdiction of such tribunals, and to review all legal decis- ions made by them, but not their determinations upon ques- tions of facts, which are conclusive.' The court had under 1 Hamilton v. Harwood, 113 IlL 154. i Whitney v. Board of Delegates, 2 Owens V. State, 27 Wis. 456. 14 Cal. 479. 3 Poe V. Marion Machine Works, 34 5 starr v. Trustees, 6 Wend. 564. W. Va. 517. § 431,] CEETIOSAEI. 589 consideration the proceedings of a tribunal other than a court: and such is the rule in most jurisdictions with respect to a re- view of their proceedings. It was subsequently stated that the main object of the writ was to confine the action of inferior officers within the limits of their delegated powers.^ The court evidently did not intend to declare that the legal decisions of an inferior court could be thus reviewed. General expressions to the effect that the writ will lie to re- view irregularity in the proceedings of inferior tribunals and errors of law therein have frequently been made, yet in all such cases the court had under consideration proceedings of officers, not of courts. Such were Susquehanna Bank v. Supervisors, 25 K Y. 312; Baldwin v. Buffalo, 35 K T. 380; Swift v. Pough- Tceepsie, 37 N. T. 511 ; People v. Assessors, 39 1^. T. 81 ; People V. Assessors, 40 N. T. 154; People v. Supervisors, 51 N. T. 442; People V. Allen, 52 JST. T. 538. The New York court, in a later case, make the distinction herein stated, and referring to the cases cited state : " It is thus seen that the office of a common- law writ of cerUorari has been somewhat enlarged since the decision in the 30th New York {People v. Commissioners of Highways, p. 12). But it will also be seen that it is in cases where the relator has no other available remedy, and where injustice would be done if the writ was not permitted to do its work;" The rule still remains unimpaired, at least in principle, that where there is a remedy by appeal the writ will be con- fined to its original and more appropriate office, which was said to be to bring up the record of the proceedings of an inferior court or tribunal to enable the court of review to determine whether the former has proceeded within its jurisdiction, and not to correct mere errors in its proceedings.'^ The supreme court of the United States state the purpose of the writ to be that stated by the Wisconsin court, when applied to inferior courts, and the same reason is given. Thus they say: "As an appeal lies from the judgment of the justice of the peace, his proceedings cannot be quashed by writ of certiorari, unless for want of jurisdiction appearing on the face of the record." ^ To the same effect is Gaitlier v. Wathins, 66 Md. 576. 1 People V. Goodwin, 1 Seld. 568. 3 Harris v. Barber, 139 U. S. 366. 2 People V. Betts, 55 N. Y. 600. 590 SPECIAL REMEDIES. [§ 431. The difficult question, and one with respect to which courts are not agreed, is as to the extent of the inquiry to determine the question of jurisdiction. The argument advanced by the New- York court is that as the main object of the writ is tliat above stated, to wit, " to confine the action of inferior officer^ within the limits of their delegated powers," the reviewing court must necessarily re-examine, if required, the decision of the magis- trate on all questions on which his jurisdiction depends, whether of law or fact. That inferior magistrates, when required by writ of certiorari to return their proceedings, must show affirm- atively that they had authority to act, and when their author- ity and jurisdiction depends upon a fact to be proved before themselves, and such fact be disputed, the magistrate must cer- tify the proofs given in relation to it, for the purpose of en- abling the higher court to determine whether the fact be established.' The statute of that state denied to commissioners of highways the power to lay out a road through any building without the consent of the owner. There was a barn standing on the land laid out for the highway in controversy, and un- less the owner's consent was given the officers were without authority, and it was Avith reference to this fact that the lan- guage of the court was used. The California court, while conceding that in many cases it is held that the record alone can be regarded, and that it is not the office of the writ to bring up the evidence even upon a disputed jurisdictional fact, assert that the cases are very nu- merous t© the effect that the review may be extended to every issue of law and fact involved in the question of jurisdiction, and that not only the record, but the evidence itself, when necessary to the determination of this question, must be re- turned, and adopt this latter rule as the most reasonable, and in their opinion the true rule.^ The rule thus stated was that which had been adopted in prior cases in New York and fol- lowed in others since; in one where the question was whether consent had been given to the construction of a highway through an orchard,^ and another whether a road terminated in a pri- 1 People V. Goodwin, 1 Seld. 568. 3 People v. Dutchess County, 23 2 Whitney v. Board of Delegates, Wend. 360. etc., 14 Cal. 479. § 482.] CEETIOEAEI. 591 vate inolosure so that it could not be a public road,' and has since been approved in California.^ The great diflficulty lies in applying the rule ; yet it cannot be said but that the rule is the same as that Avhich permits an attack upon judgments of courts by other proceedings for want of jurisdiction. A decision of the New York court of appeals is often misstated, as holding that, upon a common-law writ to review summary proceedings by a landlord against his tenan t, the evidence as to whether the relation of landlord and tenant existed could be reviewed, as that was a jurisdictional fact. The fact is that the court make the exception in that case that the writ was statutory.^ The exact question was decided by the supreme court of the United States, and to the effect that such question could not be determined upon a common-law writ. That errors of judgment in the exercise of jurisdiction could not be thus reviewed. Want of jurisdiction must appear from the record.* Ordinarily the return to the writ brings up the record proper and not the evidence, where used to revieAV the proceedings of inferior courts. We meet with extremes when the writ is addressed to inferior tribunals. In some jurisdictions the rule is applied that is stated with respect to courts, while in others it is held, as we have seen, that it is a part of the record, or may be considered to the extent of determining jurisdictional facts, while in others the evidence may be brought up and reviewed, to the extent, at least, of de- termining whether there is sufficient evidence — in some states limited to whether there is some evidence — to sustain the judgment. The cases last stated must be influenced by statu- tory enactments. They are referred to later. Sec. 432. Term, " not proceeding according to the course of the common law/' defined. — The term, "tribunals not pro- ceeding according to the course of the common law," is some- what indefinite. Courts of record in many cases exercise a jurisdiction not according to the common law, and a procedure to acquire jurisdiction is different from that prevailing at com- 1 People V. Van Alstyne, 33 Barb. 3 Benjamin v. Benjamin, 5 N. Y, 131. 383. 2 Blair v. Hamilton, 83 Oal. 49. 4 Harris v. Barber, 139 U. S. 866. 692 SPECIAL EEMEDIES. [§ 432. mon law or established by common-law courts in ordinary pro- ceedings therein. They are special in character, relating only to the particular class of proceedings; yet the provisions of law are such that, after jurisdiction has been acquired, there- after the subsequent proceedings are regular and in the ordi- nary course, and the right of appeal is given in the same man- ner and to the same extent as in proceedings in conformity to the ordinary course. It is clear the rule stated as applicable to tribunals not proceeding according to the common law has no application to judgments rendered in such actions or pro- ■ceedings. On the other hand, tribunals other than established courts are formed, and power judicial in its character is con- ferred upon them to determine certain questions. The man- ner of their procedure is often summary and out of the course pursued in established courts. The right of appeal is often- times given to an aggrieved party to some established court, which proceeds according to the course of the common law. Such tribunals are properly termed " tribunals which proceed out of the course of the common law," and it is the judgment of such tribunals usually that may be reviewed upon certiorari, upon questions not only of jurisdiction, but of law as well. (Jertiorcvri in such cases may operate as a writ of error to re- view and determine such questions. The same rule has been applied also to a court when proceeding in a manner not in the course of the common law, where writ of error or exceptions do not lie to such proceedings, though they are authorized in regular proceedings.^ There are courts which do not recognize the position first assumed, but on the contrary hold that proceedings like those of attachment are out of the course of the common law, and hence certiorari is the proper remedy. I understand that such is the doctrine of the New Jersey and Michigan courts, and perhaps that of Pennsylvania.^ If so, it does not seem that the inquiry upon the writ could extend beyond the proceeding that is special, and, where such proceedings are auxiliary to the ac- tion for the debt, that the judgment for debt could not be the 1 Petition of Landoff, 34 N. H. 163. 100; Parks v. Watts, 113 Pa. St. 4; 2 Curtis V. Steever, 36 N. J. L. 304; Patterson v. Goodrich, 81 Mich. 235. Thompson v. Eastburn, 16 N. J. L. § i32.] CEETIOEAEI. 593 subject of inquiry. The courts of Michigan and New Jersey- give a very extended scope to proceedings by certiorari. The former hold, where an order of a probate court granting leave to the administrator of an estate of an incompetent person to sue upon a guardian's bond has been set aside by the circuit court and the proceedings reversed, the entire proceedings may be reviewed by the supreme court on certiorari, on the ground that the proceedings are not according to the course of the common law.' The supreme court of Massachusetts, however, speaking with reference to probate courts and their proceed- ings, hold, as stated by another, that, like the ecclesiastical • courts of Great Britain, they are a court of peculiar jurisdic- tion, having a separate and exclusive jurisdiction over an im- portant class of subjects. Such courts proceed according to the civil law ; their jurisdiction is separate and distinct from that of the common-law courts; and the fact that the}'^ proceed according to the course of the civil law does not bring them within the provision allowing certiorari to such jurisdictions as do not follow the course of the common law. (Note to Ency. of Practice, vol. 4, p. 89.) The court simply holds the above with reference to the probate court of that state, in considera- tion of the legislation with respect to review of their decisions. In that state the court acts in such matters as a supreme court of probate, and the common-law courts as such have no con- trol over their proceedings and cannot review their decisions.^ Proceedings pursuant to a statute upon an information filed for the purpose of causing a convict in the state's prison to be sentenced to additional punishment by reason of his being im- prisoned upon a second or third conviction were held to be according to the course of the common law; and the remedy was by writ of error, and aot certiorari? So a police court in Massachusetts, in receiving complaints and issuing warrants for the seizure of intoxicating liquors illegally kept, proceeds according to the course and principles of the common law. Po- lice courts are courts of record of common-law jurisdiction, civil and criminal, in that state.* It was stated by the supreme 1 Welch V. Van Auken, 76 Mich. 464 « Cook et aL v. Petitioners, 15 Pick. 2 Peters v. Peters, 8 Cush. 539. 234 4 Lynch v. Crosby, 134 Masa 313. 38 59i SPECIAL EEMEDIES. [§ 432. court of Michigan that a proceeding to recover the possession of lands under the law of forcible entry and detainer, being summary and unknown to the common law, certiora/ri only lies to bring the cause into that court ; but when appealed to the circuit court as provided by law, it becomes a proceeding ac- cording to the course of the common law, and error is the only mode of reviewing the judgment of the circuit court.^ Con- tempt proceedings are familiar instances where the court pro- ceeds in a special and summary manner. Of course they were known to the common law, but the proceeding is unlike that pursued in ordinary cases, or what may be termed common-law proceedings, certiorari being the only direct remedy, as ordi-. narily there was no appeal. The rule as applied to such pro- ceedings is stated and illustrated in the chapter on contempts, and also in section 444, this chapter. Bastardy proceedings. — Bastardy proceedings are special in character and not according to the course of the common law. Hence it is held that the proceedings of a court in such a case are subject to review upon certiorari. What questions will be reviewed depends upon the law and practice of each particular state.^ Proceedings in forcible entry and unlawful detainer are of such a character that certiorari ordinarily lies to review their judgments, and the same is true with respect to summary proceedings generally to recover possession of land.' In Michigan, however, it was held, while certiora/ri is a remedy which might be used, yet as there were other remedies they would dismiss the writ.* In subsequent cases hereinafter re- ferred to, that court held in respect to other matters that though an appeal might be a better remedy, yet, as the party was enti- tled to the writ, it would not be dismissed. The writ is particu- larly applicable to proceedings summary in character, and has been applied in a variety of instances to the acts of judicial officers exercising a special authority, and to proceedings spe- cial in character. Where a transcript was filed of a justice's 1 Parker v. Copland, 4 Mioh. 538. 3 Commonwealth v. Bigelow,3 Pick. 2 Baxter v. Columbia Tp., 16 Ohio, 31; People v. Covill, 20 Hun, 460; 56; Sweet v. Overseers, 3 John. 23; Thorn v. Eeed, 1 Ark. 480. Gilev. Moore, 3 Pick. 386; Mariner V. < Farrell v. Taylor, 12 Mich. 113; Dyer, 3 Me. 165. Smith v. Reed, 24 Mich. 240. § 432(2.] CEETIOEAEI. 595 judgment, and execution issued thereon, certiorari was issued to review the proceeding.^ The act of a circuit judge in re- quiring a new bond from a county official, pursuant to the re- quirements of a statute, has been held thus subject to review ; ^ also the proceeding of a court in summarily entering satisfac- tion of a judgment upon the record,' and also proceedings to compel a town to support an insane pauper.* Sec. 432a. Judicial acts. — The writ of certiorari issues at common law to review the proceedings of inferior courts, offi- cers or bodies acting in a judicial capacity, and then only when it is made to appear that a wrong has been done which can be corrected by the issuing of the writ. It will not issue for the purpose of reversing ministerial or unlawful acts not done in the discharge of some judicial or quasi-]vLAiQisl duty.* In some of the states the use of the writ is extended to include legisla- tive and ministerial acts of public corporations and of officers.^ The uniform distinction is between judicial and ministerial acts ; the former being only voidable for error, and the latter being merely void if not done in pursuance of lawful authority. And as judicial acts are valid until reversed for error, a writ of error or certiorari will lie in all such cases. If the proceedings are in a court of record according to the course of the common law, a writ of error is the proper remedy to reverse or vacate an erroneous judgment, otherwise the remedy is by certiorari.'' The principal difficulty in treating this branch of the law of certiorari is to determine what acts are judicial or quasi-]vL(M- cial as distinguished from those that are legislative or minis- terial. By some the test has been declared to be the exercise of judgment and discretion. That where a duty is imposed bj'- law on an inferior tribunal, board or officer, in the performance of which it has no discretion, its action in the performance of 1 Wedel V. Green, 70 Mich. 643. 494; People v. Van Slyck, 4 Cow. 397; 2 Ex parte Buckley, 53 Ala. 43. See Pearsall v. Commissionei-s, 17 Wend, also People v. Nash, 15 N. Y. Supp. 39. 15 ; People v. Walker et at, 68 N. Y. 3 Lawrence v. Vickey, 13 N. J. L. 403. 3g8. 6 Treasurer v. Mulf ord. 36 N. J. L. *Londonderiy v. Babbitt, 54 Vt. 49; State v. Hughes County, 1 S. Dak. 455. 292. 'State v. Kemen et at, 61 Wis. " Parks v. Boston, 8 Pick. 317. 596 SPECIAL EEMEDIES. [§ 432a. that duty is ministerial; but where the law imposes a duty, in the performance of which the tribunal, board or officer can exercise judgment and discretion, such action in its nature is quasi-judicial. This test, however, is not wholly satisfactory to many courts. In fact, is not recognized by some. The dis- tinction between a judicial and legislative act was stated by Field, J., in the Sinking Fund Gases, 99 U. S. T61, to be well de- fined. " The one determines what the law is and what the rights of the parties are with reference to transactions already had ; the other prescribes what the law shall be in future cases aris- ing under it. "Whenever an act undertakes to determine a question of right or obligation or of property as the foundation upon which it proceeds, such act is to that extent a judicial one and not the proper exercise of legislative functions." The distinction between judicial and ministerial acts is often not easily determined. It was said by a learned judge that " there can be no great difficulty in determining, when an officer is charged with both judicial and ministerial duties, to which class of duties a particular act belongs." ^ But in this statement I cannot concur; nor does the test which he sug- gests make the distinction clear, when he says : " The charac- ter of the act itself will usually determine whether it be judi- cial or ministerial. If it be the execution of a determination committed by the law to the judgment and discretion of the officer, which could be as well done by another as by the one thus clothed with the power of determination, it i» a minis- terial act. The fact that it requires skill and involves judg- ment and discretion will not give it a judicial character." The further statement made by him is the expression of authority elsewhere as well. He says: " It 'must be borne in mind that the fact of an officer ]Deing clothed with discretion in the dis- charge of a duty as to the manner of its performance or as to the control of circumstances and attendant acts, necessarily arising in the discharge of such duty, will not give to it a ju- dicial character. It is impossible to conceive of any ministerial duty to be performed by an officer that may not be — that is not — accompanied by circumstances which require the exer- cise of judgment and discretion." It was also stated by the 1 Beck, J., in MoCord v. High, 24 Iowa, 836. § 432a.] CEETioEAEi. 597 ]N"ew York court of appeals that " the fact that a public agent exercises judgment and discretion in the performance of his duties does not make his action or powers judicial in charac- ter ; " 1 and by the supreme court of California, that the exer- cise of judgment is not the criterion by which a proceeding must be viewed to determine its character. To render it the exercise of a judicial function its judgment must act, in a mat- ter which is judicial, in the sense above indicated (the sense stated by Justice Field, supra)} Again, the officer or tribunal to whom the writ is issued must be an inferior officer or tri- bunal exercising judicial functions, and the proceeding brought up for review must he a judicial proceeding. The writ does not extend to a mere ministerial act though performed by a judicial officer.' It will be observed that, notwithstanding the definitions al- ready given, we are without a test in many cases. We know at a glance that that given by Justice Field, to wit, " that a ju- dicial act determines what the law is and what the rights of parties are with reference to transactions already had," is not sufficiently comprehensive. It does not meet the proceedings of county commissioners, city councils or of boards of alder- men when they act in naatters like the laying out of highways, or making assessments for sewers or other improvements, and yet it is generally held that in such matters they act judicially, and not merely as ministerial or executive officers.^ They do not determine what the law is ; much less do they deter- mine anything with reference to past proceedings. They merely act as public agents in performing public duties, and the only element that establishes the character of their proceedings as judicial is that of the discretion and judgment which they are required to exercise, unless it may be that in such proceedings the parties or persons interested have the right to be heard, and the determination is presumably made with reference to the exercise of that right. It must be true that where an officer is required to act upon evidence such act is judicial. If a mag- 1 People V. Walter et al., 68 N." Y. 3 People v. Bush, 40 Cal. 344. 403. 4 Attorney-General v. Nortliamp- 2 People V. Board of Education, 54 ton, 143 Mass. 589. Cal. 375. 598 SPECIAL EEMEDIES. [§ 4:32t«. istrate or board is required to act upon a petition to determine its sufficiency, such act is judicial, and Ms decision ordina- rily is the exercise of jurisdiction; and it may be that an act may be judicial when the officer is only required to act upon physical evidence. "Why is it not a proper test to say that, " where the officer, in cases other than where he is required to determine a question of law and declare it in the performance of a duty, is to depend upon his own judgment unaided by evi- dence of any character as to the manner of performing it, the method adopted is ministerial ; that where his judgment is to be controlled by evidence of any character which he is bound to consider, then his act or determination is judicial ? " It seems to me that the supreme court of Massachusetts had this distinction in mind when they stated : " The appointment of police officers by the municipal authorities of a city cannot in any just sense be called a judicial proceeding. It is an im- portant duty, and, like most administrative duties, involves the exercise of judgment and discretion ; but it is administrative and not judicial in character. No one has the right to ie heard, and their decision is not within the meaning of the law an ad- judication or determination of any question, or of the rights of any parties." ^ Boards of commissioners, and those having like powers, are authorized to determine the necessity for laying out public ways. The exercise of this power is judicial. The board of necessity must consider many questions to arrive at a conclusion. It may not require the consideration of oral testi- mony, yet they must necessarily consider physical facts and conditions, which they have knowledge of by observation or otherwise.2 The decisions of the courts cannot be reconciled, nor can we deduce from many of them any rule upon which their decision was made to rest. Thus, in Michigan it was held that the action of a board of supervisors in discontinuing a road was legislative in character, and therefore could not be reviewed upon certiorari,^ though they were required to act only upon petition. It is true they had a discretion to exer- cise notwithstanding the petition. The same statute also pro- 1 Attorney-General v. Northamp- » People v. Board of Supervisors, 38 ton, 143 Mass. 589. Mich. 64a 2 Parks V. Boston, 8 Pick. 318. § i32a.] CEETioEAEi. 599 vides in the same manner for laying out and establishing roads. No reason was suggested why their action in respect to discontinuing was not of the same character as it would have been if instead they had established a road. An order of the board of supervisors creating a swamp-land district under the California statute was held to be legislative,^ as well as the action of the board in the matter of directing a supplemental assessment, the appointment of commissioners to make it, and the subsequent rescission of the order.^ Towns, school districts, etc. — Creating, dividing, etc. — It is quite generally held that the action of municipal or quasi- municipal boards in creating subdivisions, such as towns, school districts and the like, or dividing the same, is legislative ' Assessors — Acts of. — The acts and determination of assess- ors in valuation of property has quite generally been consid- ered as judicial in character. They are required ordinarily to act upon the best information they can obtain, and sometimes with respect to real property from actual view. They certainly are required to act upon evidence.* In Barhyde v. Shepard, 35 N. T. 238, the court reviews the several provisions of the statute relating to the duties of assessors, both as to taxable property and that which is exempt. Thej^ say : " As a rule all buildings are taxable, and it is the duty of the assessors to in- clude them in the list ; but if a particular building is claimed and is found to have been built for a seminary of learning, it must be stricken from the list. The assessors hear the proof by the statement of the claimants and decide whether the building was erected for that purpose." The court further illustrates, taking property of a corporation for an example. They say : " Two propositions must be established before them, one of fact, to wit : that they are an incorporated company; another of law, that 'Williams v. Sacramento County, Minn. 313; Christleib v. Hennepin 65 Cal. 160. County, 41 Mich. 143. '^ Bisler v. County of Sacramento, * Buffalo & State L. E. Co. v. Super- 59 Cal. 698. ■ visors, 48 N. Y. 93; Swift v. Pough- 3 Lemont v. Dodge County, 39 Minn, ke-^psie, 37 N. Y. 511. 385; Moede v. Stearns County, 43 600 SPECIAL EEMEDIES. [§ 432a. such an incorporation is not liable to taxation on its capital." Again, certain classes of persons are under the law entitled to certain exemptions. To determine who are within those classes requires not only the exercise of judgment, but a determination upon evidence. This evidence usually involves diificult and nice questions both of fact and law, but it is the duty of the assessors to make the inquiries, to hear the evidence, and to determine the validity of the claim. Again, the law provides in some cases that debts owing may be deducted from taxable property; also that a minister of the gospel is entitled to cer- tain exemptions. In each and all of these cases, say the court in the case last cited, " the action of the assessors is eminently judicial in its nature. To administer oaths, to hear evidence, to weigh its effect, to compare it with the law, and to decide the question presented, are of the essence of judicial action." The court further state : " That this action (on the part of the assessors) is judicial is clearly indicated by two expressions of the statute in addition to those quoted. First, the names of all the taxable inhabitants of the town are to be ascertained by the assessors upon ' diligent inquiry.' This implies an ex- amination and investigation of a judicial character, similar to that undertaken by a grand juror. . . . The other expres- sion is found in section 9, in which the assessors are directed to prepare an assessment roll in which they should set down the details pointed out, embracing names, quantity and value, and this roll shall be prepared according to the best informa- tion in their power. They are to inform themselves ; they are to ascertain by all means within their reach, by oral statements, by written proof, by personal observation and judgment, are to reflect and consider, and finally to adjudicate according to their best information, and prepare the roll accordingly." The purpose of quoting so much at length from the opinion in this case is twofold : First, as all the acts on the part of assessors are not judicial (for instance, making figures on the roll indicating a deduction and making the deduction itself), to indicate generally what are judicial; and second, as sustaining the definition or test which we have stated of judicial action. The action of a city council or other bodj'- possessing similar powers in passing upon a petition for the reduction of taxes is § 4:32a.] OEETIOEAEI. 601 judicial.' So is the action of a board of supervisors acting as a board of equalization.^ The action of township trustees in calling an election upon the presentation of a petition signed by one-third of the resident taxpayers of the township, as provided by law, for the purpose of having decided thereat a proposition to vote a tax to aid in the construction of a railroad, so far partakes of a judicial character as that its legality may be determined in a proceeding of certiorari? The action of a county board of supervisors upon a petition presented for the removal of a county seat is judicial.* And quite generally, as before stated, action taken upon any petition is judicial in character. It is in the nature of evidence which they must consider, and upon which must be based their determination. The supreme court of Georgia, however, do not recognize this rule, if it may be called such, to the extent at least which it is stated. Thus, where the statute of that state provided for elections respecting fences and stock law in and for a single militia district, but made no provision for a counter petition, or for any contest or hearing before the ordinary, it was held that the action of the ordinary upon the petition presented was ministerial, and hence certiora/ri would not lie.' Boards of audit. — Boards of audit are g'wosi-judicial bodies for the purpose of examination and settlement of accounts and claims. The allowance and settlement are an adjudication of the claim.® Licenses — Granting or refusing. — "With respect to the granting of licenses by municipal boards, in some jurisdictions it is held that their action is judicial ; in others the contrary is held. Thus, in Massachusetts it is held that the proceedings in relation to the granting of a ferry license are judicial ; hence certiorari will lie.' In that case, however, there was a hear- ing upon petition. The supreme court of California, however, held that the power to grant a ferry license was not judicial j JCollinsv. Davis etaL, 57 Iowa, 256. 6 Eldorado County v. Elstner, 18 2 Royce v. Jenny et al., 50 Iowa, 676. CaL 144; Robinson v. Supervisors, 1& 3 Jordon v. Hayne et aL, 36 Iowa, 9. Cal. 208. * Herrick v. Carpenter, 54 Iowa, 340. ' Fay et al. v. Petitioners, 15 Pick. 5 Meadows v. Taylor, 13 S. E. R. 155. 243. ■602 SPECIAL EEMEDIES. [§ 4:32a. but this ruling was placed upon the ground that the power was vested in the board of supervisors — a political body — and hence was not judicial.^ Later they took occasion, to correct their manifest error.^ The granting of dram-shop licenses was held in Missouri a judicial act.' The same was held in Khode Island; but the statute there forbids the granting of such licenses for certain reasons and under certain, conditions, and hence the determination with respect to such reasons and con- ditions is judicial in character.^ In Minnesota and jS'orth Car- olina the contrary is held.' Appointment and removal of officers.— It is generally held that the appointment of public officers by municipal authorities or other power is administrative and not judicial.^ But the power to remove officers for cause is judicial.'^ It was, how- ever, held in JSTew York in an early case that the appointment of a constable and three justices of the sessions was the exer- cise of judicial power.^ It was stated in the latter case that whenever the rights of an individual are infringed by the acts of persons clothed with authority to act, and who exercise that authority illegally and to the injury of an individual, the per- son injured may have redress by certiorari. The proceedings of a municipal board in determining as to the eligibility of one of their number is judicial.' Boards of health.— Boards of health ordinarily have the power conferred upon them to summarily remove or abate a public nuisance. Yet it is held that their proceedings are not subject to review by certiorari. Such a board is not required to give any person a hearing before exercising its jurisdiction, and is not required to, and has no power to, call and swear wit- nesses, but may act upon its own inspection and knoAvledge. 1 Chard V. Stone, 7 Cal. 117. ton, 143 Mass. 589; People v. Bush, 2 People V. Eldorado County, 8 40 Cal. 344 '^^^ ^S- ' Macon v. Shaw, 16 Ga. 172; State 3 State V. Heege, 37 Mo. App. 338; v. Duluth, 53 Minn. 238. 4 Rhode Island Soc. V. Budlong, 25 8 Wood v. Peake, 8 Johns. 69- Atl. Rep. 657. Wlldy v. Washburn. 16 Johns. 48. s State V. Lamberton, 37 Minn. 362; 9 Board of Aldermen v. Darrow 18 Ealeigh v. Kane, 2 Jones, 288. Colo. 460. ' 6 Attorney-General v. Northamp- § 433.] CEETIOEAEI. 603 TKeir determinations are not final and conclusive upon the owners of the premises where the nuisance is alleged to exist, as to the existence of a nuisance. If it was, then the exercise of such summary power could not be upheld. Their determi- nation that certain conditions existing constitute a nuisance does not make them a nuisance. It is the actual existence of a nuisance which gives them jurisdiction to act. The board acts at its peril.^ Wrongful acts. — The wilful and wrongful acts of public of- ficers is not subject to review by certiora/ri. Thus, the M^rong- f ul and fraudulent sale of a school-house and fixtures belonging to a school district by two of the district officers was held not to be in any sense a judicial or quasi-]\xA\c\a]. proceeding.^ Sec. 433. Tribunals other than courts exercising judicial power — Kule. — The writ is frequently allowed and used to review the proceedings of highway commissioners, boards of review, assessors and other bodies clothed with discretionary power, for the purpose of correcting errors of law or irregular- ities in their proceedings. In such cases the court can consider all questions arising upon the face of the record,' even to the extent of ascertaining whether the determination was made upon any evidence that would warrant it.* The rule was stated by the New York court, that, upon the review of proceedings by a common-law writ of certiorari, only errors in law affecting materially the rights of the parties may be corrected. The evidence may be examined to determine whether there is any competent proof to justify the adjudication made; but ques- tions of fact as to which there is conflicting evidence, or when conflicting inferences may be drawn from the facts or in matters •of judgment or discretion in a case justifying their exercise, 1 People V. Board of Health, 140 Goodwin, 24 Wis. 286; State ex rel. N.Y.I; Yates T.Milwaukee, 10 WaU. Supervisors v. Nelson, 57 "Wis. 147; 497_ People v. Board of Police and Excise, 2 State V. Kemen, 61 Wis. 494. 68 N. Y. 408. 3 Dow V. True, 19 Me. 46; Lapau v. < State ex rel. Merchant v. Whit- County Coin'rs, 65 Me. 160; Mil- ford, 54 Wis. 150; State ex rel. Wood waukee Iron Co. v. Schubel, 29 Wis. Co. v. Dodge County, 56 Wis. 79; Peo- 444; People v. Board of Commrs, 69 pie v. Smith, 45 N. Y. 773. N. Y. 408; State ex reL McCune v. 604 SPECIAL EEMEDIES. [§ 433. cannot be reviewed. The particular question was whether there was evidence to justify the removal of an officer by the respondent for incapacity.^ Again, it was stated by the same court that on such a writ the court may go behind the inquiry, whether the inferior tribunal had jurisdiction of the parties and the subject-matter, and whether its proceedings and judgment were within that jurisdiction, and may examine the case upon the whole evidence to ascertain whether, as matter of law, there Avas any error in the proceedings before such inferior tribunal. The court reviews many leading cases in that state, and while admitting that by far the greater number had confined the matter of review to jurisdictional questions only, announce that such rule might work great injustice in many cases, and the one declared would be more in consonance with the administration of justice.^ In a later case, where the purpose of the writ was to review the proceedings of the board of assessors, the court held that the writ brings up the merits as well as questions of jurisdiction and regularity, and that, where the assessors have neither exceeded their power nor been irregular in exercising them, the court will still examine and correct their decisions if erroneous ; and the court did in that case reduce the assessment upon the facts stated in the affidavit which was presented to the assessors from $5,000 to $500.' The supreme court of Wisconsin make the clear distinction which we have noted, be- tween proceedings to review proceedings of inferior tribunals and where the writ is applied for to review the judgments of inferior courts. They say : " But in proceedings of a summary character and out of the course of the common law, like the proceedings of the board of review under our statute, in which powers are exercised affecting valuable rights of property, and where there can be no direct review of their determinations unless upon a common-law writ of certiora/ri, whatever errors they may commit, and however clear it maybe upon the undis- puted facts that their decision is erroneous, there a different practice may well obtain. There, although the board may have 1 People V. Board of Police and Ex- 3 People v. Assessors of Albany, 40 oise, 68 N. Y. 408. N. Y. 154 2 People v. Board of Police, 39 N. Y. 506. § 433a.] CEETIOEAEI. 605 jurisdiction of the property, yet if in their proceedings they violate clear provisions of the statute in fixing the valuation of it, their mistakes and errors may be corrected upon a common-law writ of certiorari." ^ The same court had in a prior case ap- plied the rule stated, and held that a common-law writ of cer- tiorari properly brought up for review the proceedings taken under the statute for vacating a highway, and that it would examine the entire proceedings to see if they were regular and in conformity to the statute.^ Sec. 4:33a. Inferior tribunals continued — Highway com- missioners. — The writ is frequently used to review the pro- ceedings of highway commissioners, or those exercising the same powers, in laying out, establishing, opening and vacating highways.' In Massachusetts, Maine, New Hampshire, and possibly some other states, the doctrine is that the writ will not lie in the case of a town laid out by selectmen and accepted by the town to quash the proceedings; that the proceedings of the town in such a case may be examined and controverted in ac- tions of trespass qua^e clausum.^ The same courts hold, how- ever, that the writ will lie as to proceedings of courts of sessions and of county commissioners in laying out and establishing roads,^ and also to the mayor and aldermen of cities to remove and review their proceeding on the location of ways.® It was said by the Massachusetts court that the ground upon which it is held that the writ will lie in the latter cases is that the pow- ers of the mayor and aldermen in such cases are like those of county commissioners and require no act or vote of the town.' •Milwaukee Iron "Works Co. v. *Gay v. Bradstreet, 49 Me. 580; Schubel, 39 Wis. 444. - Bobbins v. Lexington, 8 Oush. 393; ^ State V. Goodwin, 24 Wis. S86. Bobbins v. Bridgewater, 6 N. H. 3 Baker v. Runnells, 13 Me. 335; 534. Longfellow v. Quimby, 39 Me. 303; 5 Longfellow v. Quimby, 39 Me. 303; D wight V. Springfield, 4 Gray, 107; Gay v. Bradstreet, 49 Me. 580; Eob- Dietrick v. Highway Com'rs, 6 111. bins v. Lexington, 8 Gush. 393. App. 70; State v. Goodwin, 24 Wis. eparks v. Boston, 8 Pick. 318; Eob- 286; Ex parte Keenan, 31 Ala. 558; bins v. Lexington, 8 Gush. 393; Preble People V. Brighton, 20 Mich. 57; v. Portland, 45 Me. 241; Gay v. Brad- Names V. Commissioners, 30 Mich, street, 49 Mo. 580. 490 ; Campau v. Button, 33 Mich. 535 ; ' Bobbins v. Lexington, 8 Cush. 293. Vanderstolph v. Boylan, 50 Mich. 330. 606 SPECIAL REMEDIES. [§ 4335. The distinction seems to be that, in the latter cases mentioned,, the powers of the officers which they exercise are judicial. I do not find that the distinction made by the courts referred tO' is recognized in other jurisdictions; yet it is to be kept in mind that, in the great majority of states, highways are not estab- lished or accepted by vote of the inhabitants. In Michigan it was stated that, where proceedings of town highway commis- sioners were void, the owners of the lands appropriated may treat them as being so, and bring trespass when their occupa- tion is disturbed ; but that is not as appropriate and suitable a remedy as certiorari} The doctrine of the Massachusetts court further is: The proceedings of county commissioners cannot be impeached collaterally for errors not affecting their jurisdic- tion ; that the proper remedy is a petition for certiorari, upon which any omissions or errors of form may be cured by amend- ment, and on which the whole proceedings may be quashed if the errors are such as demand it.^ The court intimate at least, if they do not so decide, that the failure to give sufficient notice of meetings merely goes to the formality and regularity of the proceedings and record and does not affect the jurisdiction of the commissioners. If the notice referred to was prescribed by law, and its provisions were not complied with, it is evident upon all authority that the commissioners were without juris- diction. If the sufficiency of the notice was a matter of dis- cretion, then of course the jurisdiction of the commissioners was not affected. Sec. 4335. Tax proceedings. — With respect to proceedings instituted for the determination and levy of taxes, the writ has been largely used to review them. The writ lies to bring up the proceedings of town boards of review. The sworn state- ments and examinations, where such are permitted by law, are a part of the record where made, and will be brought up by the writ, and all questions arising upon the face of such record may be reviewed, and errors of law appearing therein may be corrected.' And the same rule applies to commissioners of 1 Names V. Commissioners, 30 Mich. 3 Milwaukee Iron Co. v.. SclwbeU 489. 29 Wis. 444; Knapp v. Heller, 32 Wis. 2Gilkey v. Watertown, 141 Mass. 467; People v. Hadley, 76 N. Y. 338;. 317, and cases cited. State v. County Clerk, 59 Wis. 15. § 4336.] CEETIOEAEI. 60T equalization, where they exist by law, to equalize the valuation between the different towns of a county.^ Boards of review have no authority to act arbitrarily and capriciously in deter- mining the question of valuation. They must act upon the evidence submitted, unless they are vested with a discretion and evidence is not permissible, and if they ignore proper evi- dence submitted and arbitrarily fix a valuation, their proceed- ing is void and will be reversed upon certiorari? Where the determination of the valuation is left to the discretion of the board, and they may, in the exercise of that discretion, raise or lower the valuation placed upon the property of an individ- ual, then the writ will not lie to review a discretion so exer- cised.' The proceedings of boards and corporate bodies in levying a tax may be reviewed and reversed if found to be void. It has been said that great care should be exercised in the issuance of the writ in such cases, and that it is frequently refused on the ground of public inconvenience. Upon such review the validit^'^ as well as the constitutionality of the law under which the board or officer assumes to act may be deter- mined.* In New York the writ was issued and directed to the board of supervisors, but they had previously issued the war- rant to collect the taxes to the collector. It was held that the jurisdiction of the supervisors and the power of the board to change the roll terminated with the levy of the tax and deliv- ery of the tax roll and warrant to the proper town officer; that neither the tax roll nor warrant was before the court Avhen the judgment was rendered on the return of the writ, and a direction to the board of supervisors to correct the roll or amend the warrant was wholly unavailing.' Note to Sec. 4336. — "While in many states the writ is used to review the proceedings of taxing officers, the supreme court of Michigan announce the doctrine that the writ will not lie in that state in such cases. No particu- lar legal ground is stated as the foundation of this rule, but inferentially, at least, it is upon the ground of discretion. They state that " the employ- ment of the writ in tax cases may be very troublesome. The writ is one 1 State V. County Clerk, 59 Wis. 15. < state v. Bell et al., 91 Wis. 271; 2 Jlilwaukee Iron Co. v. Schubel, People v. Supervisors, 83 N. Y. 275. 29 Wis. 444; Knapp v. Heller, 32 Wis. * People v. Supervisors, 82 N. Y. 275. 4Q7_ See, however, Goetzman v. Whitaker, 3 Smith V. Supervisors, 30 Iowa, 531. 81 Iowa, 527. 608 SPECIAL EEMEDIES. [§§ iSSc, 433d •easily obtained; a considerable number of officers may allow it; it is issued on no other consideration than the allowance, and the plaintiff incurs no responsibility for consequent damages. The writ when served is supposed to remove the record into the (superior) court, so that all proceeding of the officers to whom it is addressed are immediately stayed." They state an- other reason way the allowance of the writ is inexpedient, in substance, -"that the writ is not a flexible remedy; all the court can do is to quash or refuse to quash the proceedings. If suit in equity were resorted to, the com- plaining party might be required, as a condition to any relief, to do what under the circumstances appeared to be just; and if he is injured to thte extent only of a part of the taxes, he will be decreed to pay the remainder." "Whitbeck v. Hudson, 50 Mich. 86. Sec. 433o. Proceedings of public boards. — The Avrit also iias been directed to county boards to review their proceedings in changing boundaries of towns, and the same rules apply upon such review as are herein stated with respect to inferior bodies in the exercise of judicial powers.^ Sec. 4:'6Sd. Direction of the writ. — The writ, where the purpose is to review proceedings of town or county boards, should be directed to such board and not to the clerk, and the return should be made by the board and not by the clerk. In fact it is held that jurisdiction is not acquired by a writ di- rected to the clerk, and where return is made by him ; nor will the voluntary appearance of the board confer jurisdiction. The rule is pronounced that where a writ of certiorari is mis- directed, to the extent that jurisdiction is not acquired, the writ will be quashed even after a hearing upon the merits.'^ Such a board has control of its own records though they are in custody of the clerk. The person or body whose action is to be reviewed, and in whose hands the record of such action remains, is the proper party defendant in certiorari proceed- ings, and they must make return to the writ.' When the pur- pose is to review the action of a "city council as a body, the writ must be so directed, and not to the clerk. It is trae that in the case where this doctrine was stated the appointment of 1 State V. Town of Manitowoc, 92 3 Eoberts v. Commissioners, 30 Wis. 546. See, however, cases cited Mich. 181 ; State v. City of Fond du under Judicial Acts. Lac, 42 Wis. 287; People v. Highway 2 State V. Town of Manitowoc, 92 Com'rs, 30 N. Y. 73. Wis. 546; McNamara v. Spees, 25 Wis. 539. § iS3d.'] CEETIOEA.EI. 609 a clerk was with the council ; but this can make no differ- ence in the doctrine where such clerks are elected. Whether elected or appointed, in the mere matter of making and pre- serving the records of the action of the council, their relation to the corporation must be the same.^ The Wisconsin court distinguish between a body like a common council and tem- porary boards like boards of review in respect to the question under discussion. The latter, it is said, is not a permanent body, but one which, after performing a specified duty, dissolves, leaving its records in the control of the town clerk. The town clerk, therefore, alone has the legal custody and possession of the records of the board after it ceases to exist, and can make return of its proceedings in the matter, and hence is the proper person to whom the writ should be directed in such cases.^ It was stated by the New York court that a certiorari does not lie to an infericg:' tribunal except to remove proceedings that remain before it.' We have seen that in another and later case the same court held that the power and jurisdiction of a board of supervisors ceased with the delivery of the tax roll and war- rant to the collector.* If this is the correct doctrine, then it is that the proceedings of boards of review and other like bodies cannot be reviewed upon certiorari after they adjourn ; that they cannot in such case correct the record. However, we find in other states that the mere fact that such boards have dis- solved does not affect the question of the power of the courts to review their proceedings upon certiorari. Were it other- wise, a party would be absolutely without remedy. Conceding for the argument that the record or order cannot be corrected by such body, there is no question but that it can be re- versed, and, where reversed, if the collector still persists in col- lecting the tax, the taxpayer, in a proceeding to recover what has been collected, may rely upon the judgment of the court as the basis of his right.^ 1 State V. City of Fond du Lac, 43 * People v. Supervisors, 83 JST. Y. 375. Wis. 287. ^ Goetzman v. Whitaker, 81 Iowa, 2 State V. City of Fond du Lac, 43 357; State v. City of Fond du Lac, 43 Wis. 387; State V. City of .Milwaukee, Wis. 387; Milwaukee Iron Co. v. 86 Wis. 376. Schubel, 39 Wis. 444 'People V. Highway Com'rs, 30 N. Y. 73. 39 610 SPECIAL KEMEDIES. [§ 4:33d. Boards of canvassers, though they have adjourned, may be compelled by mandamus to reconvene and perform their du- ties in a lawful manner, and correct mistakes of either law or fact; 1 and among the courts which so hold are those of New York and Michigan.^ Boards possessing such or similar pow- ers, and of a like character, are not dissolved or do not cease to exist by the mere act of adjournment, to the extent, at least, that their action cannot be the subject of review or they can- not be summoned to answer process directed to them. There ^ are decisions to the contrary ; but the former, in the opinion of the writer, are best supported by authority and reason. "Where the inferior board has lost control of the record, the exception stated by the Wisconsin court and others may apply, in effect that the writ may properly be directed to the proper custodian. This exception, I apprehend, only applies where by law it is made the duty on the part of the board or officer to transmit or certify the record to another board or custody, there to be kept as a record or otherwise.' A certiorari to correct the as- sessment roll, by striking out an illegal assessment, was issued after the assessors had completed the roll and delivered it to the supervisor of the town. This fact appearing upon the re- turn to the writ, a supplemental writ was issued to the super- visor, commanding him to bring the roll into the court, which was done, and a hearing was then had upon the merits. Whether this practice was proper or authorized was not de- termined, as no objection was raised that the writ was net the proper remedy because of the fact that the roll had passed out of the hands of the assessor, and it was held that the objection could not be raised for the first time in the appellate court.* It was held, however, by the supreme court of the state of New York {People v. Tomjphins, 40 Hun, 228), that where the writ is applied for to review the action of assessors after they have completed their roll and delivered it to the supervisor, the court has no authority to correct errors committed by the assessors, though the writ is directed to the assessors and su- 1 See sec. 692. 3 chick v..CoflEey, 75 Cal. 371 ; Mor- 2 Matter of Stewart, 155 N. Y. 545; ris Canal Co. v. State, 14 N. J. L. 411. Eoemer v. Board of Canvassers, 90 * People v. McLean, 80 N. Y. 354, Mich. 27. § 433^.] CEETIOEAEI. 611 pervisors, since the supervisors, to -wlioni alone the writ is prop- erly directed, have no power under the statute to correct errors complained of which were committed by the assessors. Sub- sequently the two foregoing cases were distinguished from the case the court had under consideration, and wherein it held that the writ was properly directed to the assessors to review their action, and to the comptroller who had possession of the roll, because of the fact of such possession, on the ground that in such former cases the writ did not issue under the statute (ch. 269, Laws of 1880), which was the statute under the au- thority of which the latter court proceeded.^ Such statute authorizing the issuing of the writ provides for a review of the proceedings of the assessors, and does not contemplate the mere affirmance or reversal of the whole assessment ; hence it was held immaterial what officer has the actual custody of the assessment roll at the time the writ issues ; that the supervisor was not a necessary party .^ Note. — It was stated in Champion v. Minnehaha County, 5 Dak. 416, in denial of a motion to dismiss the writ on the ground that the powers and functions of the board had ceased: "Tlie powers and duties of tlie board never cease so long as there is a board. The members may change, the in- dividuality of the board may change, but the board remains the sajne. If it is meant that the control of the board over this very particular subject- matter has ceased, the same is true of every executive and administrative body where it has performed an executive or administrative duty, and even of the judgment of courts after the term at wliich the judgment was ren- dered has lapsed. . . . Yet courts have power to affirm, modify or re- verse . . . the judgments of inferior courts over which the original tribunal has long lost control. . . . Where such judgment is remitted to the tribunal whose action is reviewed, the judgment of the court merely stands in place of the original decision, and subsequent proceedings had thereon wiU be governed accordingly." Where the particular officer whose action is the subject of review has ceased to be an officer, some of the courts hold that the writ cannot be directed to him.' The contraryis held by others.* "Where the office, like that of a comptroller, is contin- 1 People V. Carter, 53 Hun, 458. In re Ewingson, 3 N. D. 184; Bee v. 2 People V. Smith, 24 Hun, 66; Peo- Seaman, 36 W. Va. 381; People v. pie V. Carter, 47 Hun, 446. Brennan, 79 Mich. 363. 3 Peck V. Foote, 4 How. Pr. 425; < Harris v. Whitney, 6 How. Pr. Matter of Tiffany, 30 N. Y. Supp. 486; 175; People v. Hill, 65 Barb. 170. 612 SPECIAL EBMEDIES. [§ 4:33d. vlOvls, it may be improper to make the individual incumbent, •whose act is sought to be reviewed, a party by name, and the writ should be directed to the present incumbent who has cus- tody of the records and papers of the office.^ In order to pro- cure a reversal of an order of commissioners of highways ordering the removal of fences as being an encroachment, and in other like matters, it is necessary that the order should be brought up and made a part of the record.^ It was stated by the supreme court of Michigan that a writ of certiorari to review proceedings before a justice of the peace and a jury, under the statute of that state relative to encroachment upon highAvays, must be directed to the justice, and, if necessary to bring up the final action of the highway commissioners or the documentary evidence annexed to it, to them also. That the township clerk was not a member of the board of commissioners, and a record •of their proceedings made up by him and returned by him where so directed are without authority of law. A township clerk may legally certify papers in his custody, and when such papers become properly a part of a return of a writ of certiorari, directed to the commissioners of highways, the latter may annex such certified copies, and return them, certifying them under their signatures, substantially, " Our return to the within writ appears by the schedules hereto annexed, certified by our clerk." ' The rule seems to be that in proceedings against a town or county the writ should be directed to the board of su- pervisors and not to the clerk, and the return should be made by the supervisors themselves or a majority of them, though in Michigan and perhaps in some other states it is provided by statute that the writ may be directed to the clerk and the re- turn made by him.^ Such tribunal is the only party which can file an answer or demurrer to the petition. Such answer or return, when it states any facts, is in the nature, not of an alle- 1 Matter of Tiffany, 30 N. Y. SuRp. Com'rs, 16 Gray, 341; Worcester & 486. Nashua E, Co. V. Com'rs, 118 Mass. 2 People V. Highway Com'rs, 30 561; Tewksbury v. County Com'rs, N. Y. 73. 117 Mass. 563. See, however, as to 3 Roberts v. Highway Com'rs, 30 proceedings against a town. State v. Mich. 181; Same Case, 25 Mich. 28. Harrison, 46 N. J. L. 79, where it is ^ State V. Town of Manitowoc, 93 held the writ should be directed to Wis. 546; Plymouth v. County the town and not to the clerk. § iSSd.] CEETIOEAEI. 613 gation of a party, but of an official return, and conclusive in all matters of fact, and should be signed b\'- the members of the tribunal and not by an attorney. But if a question of law only is intended to be raised by a demurrer to the petition, it may be filed by an attorney. ^ The rule applies to proceedings by village boards, and when the action is brought to review their alleged illegal acts, the writ should be directed to and served upon the board, and not upon the clerk. The writ cannot go- to a mere ministerial officer save in exceptional cases, as where the body or board whose acts are sought to be reviewed is not a continuing one or has ceased to exist, and such ministerial officer has proper custody of the record or proceeding. So in the case of a village board, it must appear that such board has ceased to exist in order to justify the direction of a writ to the clerk of the board.^ Note. — Says Newman, J. , in State v. Town of Manitowoc, 92 Wis. 546 : " In enacting tlie ordinance in question, the county board was acting in a political and governmental function, in the interest of the public, and not in the inter- est or for the county in its private or corporate capacity. The writ of certio- rari, upon which it should be sought to review its action, should be directed to the officers or board whose act it was sought to review, whenever that is a permanent body and has control of its own records. And this is true even where a clerk has custody of the records as the^mere agent of the corpora- tion. The writ in that case should not be directed to the clerk, but to the- board or body. If misdirected, the writ must be superseded or quashed. The court acquires no jurisdiction by it (citing many cases). The writ ia this case was misdirected. It should have been directed to the county board of supervisors of Manitowoc county, and not to the county clerk. The ap- pearance of the county clerk in the action, and his attempt to make a re- turn to the writ, was futile to give jurisdiction of the board of supervisors or of the case. The return is a nullity and confers no jurisdiction, either of the person or of the subject-matter. Until the proper defendant is before the court, the court can have no jurisdiction of the subject-matter. This can only be acquired by a proper writ and a return made by the proper offi- cer or board. The writ in this case should have been directed to the board of supervisors, and the return should have been made by the supervisors themselves, or a majority of them. Nor is a return, signed only by an at^ torney for the board, sufficient. It is said to be proper, in some cases involv- ing private rights, to join as defendants persons having an interest adverse to the relator. However that may be, and whether it is applicable to case.'j involving only questions of public right, it is difficult to see how either of 1 Worcester & Nashua R. Co. v. 2 State v. McGovern, 100 Wis. 666. Commissioners, 118 Mass. 561. 614 SPECIAL EEMEDIES. [§ 4.33d. the towns of Newton or Manitowoc or Manitowoc county have any interest, in their private or corporate capacity, in this matter. . . . Nor is it per- ceived how the attempted appearance of the board of supervisors, after judgment, aids the judgment. It was void when rendered. It wag void when the board of supervisors was represented as appearing. The court de- cided nothing and changed nothing in consequence or on the strength of that appearance. . . . This does not question the effect of an appearance by a natural person in his own right, after judgment, in an ordinary action. This case is not affected by those cases which hold that the writ should not be quashed, nor the action dismissed, after a hearing upon the merits. Those are none of them cases of misdirection of the writ. They were all cases where the writ had been properly issued and returned, but was liable to be quashed for irregularities." CHAPTEE 24. CEETIORAEI — Continued. Sbo. 434. Allowance of writ — When dis- cretionary. 434a. Rule of practice in Massachu- setts and other states. 434b. Rule of practice in several of the states. 434e. Allowance of writ — Not con- clusive. 434d. Time within which writ should he allowed. 435. "Writ does not lie to review pro- ceedings taken by a vote of electors. 436. Writ does not lie to review the merits. 436a. Nor discretionary acts. 4366. Review of evidence 436c. New York — Rule in. 486d. Michigan — Rule in. 436e. New Jersey — Rule in. 436/. Utah — Rule in. 486gr. West Virginia — Rule in. 437. Remedy by appeal and cer- tiorari concurrent Seo. 438. Void proceedings — Rule. 439. Stay of proceedings — Writ will lie. 440. To justices' courts. 441. To tribunals other than courts. 443. To municipal corporations. 443. Writ ancillary to other pro- ceedings. 444. Contempt proceedings. 444a. Parties — Who may apply for the writ. 444&. The return — Hearing. 444c. The judgment — Common law. 444d. The judgment — Effect of stat- ute. 444e. The judgment — Where no ju- risdiction. 444/. The judgment — Dismissal of proceedings. 444gr. The judgment — Modifying. 4447i. The judgment — Conclusive effect of. 444i Costs — Question of. 444/. Review of judgment. Sec. 434. Allowance of writ — Wlien discretionary. — It is often stated that the allowance of the writ is largely discretion- ary. It is so generally held, though in some instances it has been held a matter of right, where the case presented peculiar conditions ; and it may be stated that where it is manifest that great injustice has been done, and no other remedy exists, and there is an absence of neglect on the part of the relator, that quite generally the writ is a matter of strict right.' It has been iFarrell v. Taylor, 12 Mich. 113; Gaither v. Watkins, 66 Md. 580; Wood V. Lewis (Md.), 30 AtL Rep. 610; Flournoy v. Payne, 28 Ark. 87; Hyslop V. Finch. 99 111. 171; People V. Board of Police, 82 N. Y. 506; School Trustees v. School Directors, 88 IlL 100. 616 SPECIAL EEMEDIES. [§ 434a. held, in some cases that where there was a remedy by action this was sufficient to justify a refusal to allow the writ.^ Sec. 434:a. Eule of practice in Massachusetts and other states. — It seems that in Massachusetts, Maine and some other of the states, the practice is to allow a writ of certiorari only upon petition, in order to avoid unnecessary expense and delay, and to enable the court to deal with the substantial justice of the case, untrammeled by merely formal knd technical defects in the record. They adhere to the rule that all evidence ex- trinsic to the record must be excluded when the record is before the court on the writ. But it is otherwise in the hearing on the petition for the writ. Such petition is addressed to the dis- cretion of the court, and upon the hearing the court is not lim- ited by the record with its infirmities in matters of form, but will enlighten its discretion by inquiring into so much of the proceedings under revision as will enable it to deal with the substantial justice of the case. The procedure and practice they state to be, that the petition should set out, among other things, such of the proceedings as the petitioner desires to have raised, bearing in mind that the writ only deals with errors in law, and not with the evidence, unless some question of law is raised in relation thereto. !N"otice must be served upon the tribunal to which the writ, if granted, will be addressed. Such tribunal is the only real party respondent, although other par- ties may appear to maintain or object to the proceedings and be subject to costs. The respondent tribunal should file an answer under oath, setting out therein (when annexed to the petition) a copy of the record. If the original record be defect- ive it may be amended by the tribunal in accordance with the facts at any regular session. If it do not contain a full, detailed statement of the facts (not evidence) proved and the rulings thereon, so far as the points complained of in the petition are concerned, so as to enable the court to determine the questions of law raised, such omissions should be supplied in the answer when completed, and signed and sworn to hj the members of the tribunal whose proceedings they are. The answer, being in the nature of a return, is conclusive of all matters of fact within 1 Matter of 18th Street, 10 Abb. Pr. 169; Hooper v. Bridgewater, 103 Mass. 513. § 434&.] CEETIOEAEI. 617 its jurisdiction. If the tribunal does not appear and file its answer so that the case may be decided upon its merits, or wil- fully refuses to make a full statement of facts and rulings, the superior court, having full power to correct abuses as well as errors, may require such statement to be certified together with the record, whenever the case was within the jurisdiction of an inferior tribunal. It is not competent for the petitioner to con- tradict the record or return, but when extrinsic evidence is in- troduced by the respondents tending to show that substantial justice does not require the proceedings to be quashed, then the petitioner may introduce like evidence in rebuttal. After the writ- has been issued and the record certified in obedience to it, the court is bound to determine, upon an inspection of the whole record, whether the proceedings are illegal or erroneous ; but the granting of the writ in the first instance is not a matter of right and rests in the discretion of the court.^ Sec. 4345. Rule of practice in several of the states. — In many of the states the petition is presented directly to the court, judge or other officer clothed with the power to allow it, and the writ issues upon such allowance. If the petition is suffi- cient in form and substance then the respondent makes his re- turn. The whole question is then determined from the record. It is said that in such cases the court exercises the discretion that the courts of Massachusetts and Maine exercise upon the hearing of the petition prior to the allowance of the writ. Even in the states named (Massachusetts and Maine) there is no discretion, where the proceedings sought to be reviewed were without juris- diction, though injustice was not done.^ They say that " when the commissioners have no jurisdiction in a given proceeding the court has no occasion to exercise its discretion in the mat- ter, but on due presentation of the matter orders the writ at once ; for in such case, the action of the commissioners being without the authority of law, parties aggrieved thereby have the legal right to have the proceedings quashed for the asking." ' 1 Levant v. County Com'rs, 67 Me. 2 White v. County Com'rs, 70 Me. 429; Tewksbury v. County Com'rs, 317; Bangor v. County Com'rs, 80 Me. 117 Mass. 563; Farmington R & W. 270. Co. V. Commissioners, 113 Mass. 206; SHayford v. County Com'rs, 78 Me. Worcester & Nashua R Co. v. Com- 153; Fairfield v. County Com'rs, 66 missioners, 118 Mass. 561. Me. 385. gl8 SPECIAL EBMEDIES. [§ i345. In the federal court the practice adopted by the Massachusetts court would seem to be followed, as they state that " when the writ is sought between private persons, the general rule is that the writ will be granted or denied, in the sound discretion of the court, on special cause or ground shown." ^ The Wisconsin court recognizes the rule that the granting of the writ rests within the sound discretion of the court, even though an error has been committed ; yet if it appears that no injustice has been done the court should quash the proceedings. They state : " And we also think we ought to exercise a discretion even after a return is made, or on motion to quash under our practice, and examine all the circumstances, and, if we find substantial jus- tice has been done, dismiss the proceedings." ^ In the case cited the writ was brought to review the action of a town board in fixing the valuation of both personal and real property of the plaintifPs in that town for the purposes of taxation. A motion was made to quash the writ. It appeared from affidavits read in support of the motion to quash that there was a large amount of personal property liable to taxation in that town which was not included in the assessment roll, and on the hearing the mo- tion to quash, all proceedings in relation to the personal property of the plaintiff were discontinued, and the writ of certiorari, so far as it related to the personal property, was, with the consent of the defendant, dismissed. The motion to quash the writ, so far as it related to the real estate, was denied, and on the final hearing the valuation made by the board of review was set aside. The supreme court reversed the order and judgment of the court below on the ground that it appeared (though such matter was withdrawn) that the personal property omitted more than counterbalanced the alleged overvaluation of the real estate, claiming that in the exercise of the discretion which they had they could quash all the proceedings upon the writ even after judgment.* It appears the plaintifPs were not called upon to meet such issue, it having been withdrawn, and it only incidentally appeared. Upon a hearing of that question they might have been able to show that such property had not been omitted or was such that they were not obligated to pay taxes upon it. 1 In re Tampa Suburban R. Co., 1G8 2 Knapp et al. v. Heller, 33 Wis. 467. U. S. o83. 3 Knapp et aL v. Heller, 33 Wis. 467. § 434:C.J CEETIOEAEI. 619 Sec. 434c. Allowance of writ not conclusive on the court. In Michigan, as well as in "Wisconsin, it is held that the allow- ance of the writ by the proper oificer is not conclusive upon the court. That the propriety of the allowance is always open to examination by the court itself. The writ is not of right, but is granted under discretion. That to allow a single judge or a person not a member of the court to bind it in advance would be to take away the authority of the court itself. That unless the writ is granted by the court itself, the propriety of its al- lowance will be considered on motion or on the hearing." It is held that the discretion of the officer in allowing the writ will not be reviewed on motion to dismiss. Where certiorari was brought to review proceedings to lay out a highway, it was held sufficient ground to quash proceedings under the writ that the interest of the petitioner arose only from his being a taxpayer, and therefore liable to be called upon to pay a trifling portion of the tax which would be levied to satisfj'' the appraised dam- ages.^ It is upon the ground of discretion that the court of Michigan may refuse to entertain proceedings when sought to re- view the action of inferior courts, in summary proceedings where resort may be had to the remedy by appeal. In such cases, which we discuss later, appeal and certiorari may be concurrent remedies, not to review the same questions, but the one to re- view errors of law and the other to review the question of juris- diction. The Michigan court, however, state that where other- adequate remedies exist, the power of review should be spar- ingly exercised, and that where a decision can be taken up by appeal, and on that appeal the jurisdictional questions as well as those arising upon the merits can be fully disposed of, a cer- tiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it.' Ac- cordingly, the court dismissed proceedings under such a writ in a case of summary proceedings against a tenant holding over. It was stated that the object of the law providing for the exer- cise of summary jurisdiction in such cases was to prevent delay and injurious consequences that might follow. That if the pro- iLantis, Matter of, 9 Mich. 334; ^Vanderstolphv. Boylan, 50 Mich. Farrell v. Taylor, 13 Mich. 113. See, 330. however, Eowe v. Eowe, 38 Mich. 353. ' Farrell v. Taylor, 13 Mich. 113. 620 SPECIAL REMEDIES. [§§ 4:'3id, 435. eeedings could be removed and stayed by certiorari, the security for the payment of rent, which the statute prescribes in cases of appeal, would be evaded. This court, howeve-, where pro- ceedings have been taken by municipal officers and boards which affect substantial rights of parties with respect to the taking of their property, will review such proceedings upon cer- tiorari, though there may exist a right of appeal. It is stated that the rule is relaxed in such cases. The court, however, will not review the question of damages.' Sec. 434d Time within whicli writ should be applied for. Tlie time within which the writ should be applied for in some jurisdictions is prescribed by statute. In others it comes within the discretion of the court. Some courts have declared tliat the writ ordinarily should not be allowed after one year, and others after two. The doctrine of laches, however, is quite generally applied, especially where the statute is silent. It was held in Michigan that the statutory provisions requiring the writ to be issued within two years, and providing for its allowance out of court, do not take away the discretionary power of the court. To this proposition Justice Campbell dis- sented, and expressed doubt whether, where the question of jurisdiction is involved and the defect in this particular is ap- parent upon the face of the record, the court could dismiss the writ after its allowance. In the particular case proceedings were taken for the draining of swamps, pursuant to statutory provisions, and the report of the commissioners had been con- firmed. Eleven months afterwards parties who appeared and opposed the confirmation sued out a certiorari to remove the proceedings to the supreme court. That court quashed the writ on the ground of laches.^ The discretion of the court was exercised in another case in quashing the writ, which was al- lowed to review proceedings of drain commissioners, upon the ground that the party knew of such proceedings and had taken a contract to dig the ditch.^ Sec. 435. Writ does not lie to review proceedings taken by a vote of electors.— While, as we have seen, certiorari is 1 People V. Village of Brighton, 20 2 Lantis, Matter of, 9 Mich. 323. Midi. 57: Specht v. Detroit, 20 Mich. 3 People v. Eoldiger, 40 Mich. 745. 168; § ^36.] CEETIOEAEI. 621 the proper remedy for reviewing the proceedings of oflBcers or boards in laying out highways, as well as other proceedings taken by them, yet it does not lie to review proceedings which are taken by a vote of the town or district.' Sec. 436. Writ will not lie to review the merits.— The general rule undoubtedly is, except where a statute otherwise extends or limits, that certiorari will not lie to review the mer- its ; that an appeal is the proper remedy where such relief is sought ; that where it is allowed upon other grounds than want of or excess of jurisdiction, only errors or irregularities in the proceeding's that are substantial in their effect upon the pro- ceedings or rights of the parties can be reviewed or corrected ; and that in such cases the fact that an appeal lies is not ordi- narily, in the absence of a statute providing otherwise, suffi- cient to prohibit the allowance of the writ. This is especially applicable, as we shall see, to proceedings of inferior tribunals other than courts, and in somp jurisdictions is applicable to in- ferior courts. Thus, under the New York statute, which gives an appeal from commissioners of highwaj^s to the county judge, it was held that since such appeal only contemplates a review of the merits, certiorari will lie to review the regularity of their proceedings.^ Before the Maryland court it was argued that a certiorari ought not to be allowed where the party has a remedy by appeal or writ of error. In reply it was stated " that the court was not prepared to go to that extent. This much, however, they would say : that, as it is a matter resting in the legal discretion of the court, the writ ought not to be granted in any case where the party has a right of appeal, ex- cept for the purpose of testing the jurisdiction of the tribunal below."' Note to Sec. 436. — Under the California statute, resort to tlie writ is confined to cases in which the inferior board or ofScer has exceeded his ju- risdiction; consequently it does not lie to correct or review mere errors of law. To authorize the writ the inferior board or officer must have entered a judgment beyond the jurisdiction conferred by law; in other words, must iRobbins et aL v. Lexington, 8 ^Gaither v. Watkins, 66 Md. 580; Cush. 292. Weed v. Lewis, 30 AtL Eep. 610. 2 People V. Steadman, 57 Hun, 282; People V. Harris, 63 N. Y. 891. 622 SPECIAL EEMEDIES. [§ 436a.. have exercised judicial power not conferred. The writ will not lie to re- view acts of a legislative character, such as the passing of ordinances. They are attempts to make law, not to render a judgment under an exist: ing law. Spring Valley W. W. v. Bryant, 52 Cal. 133. Sec. 436a. Discretionary acts. — The principle is well settled that certiorari will not lie to review the exercise of discretion on the part of courts or ofRcers. There are cases where the writ has been issued, and what are termed discretionary acts have been reviewed, but in such cases the courts have pro- ceeded upon the ground that the act was unwarranted or ille- gal, or so palpably wrong that it could be said that the court or officer had not exercised discretion ; that the act was arbi- trary rather than discretionary. Such cases are rare.^ In those jurisdictions where the writ only issues to review jurisdictional defects in proceedings hj organized courts, the question of dis- cretion or its abuse does not arise. It is only important where the errors and illegalities in the proceedings of inferior tribu- nals are subject to review. It is true that in early cases in New York it was said that " an improper exercise of discretion, as in refusing a new trial or the postponement of a cause in a common-law court, is not a ground for a writ of error; but where palpable injustice has been done by an inferior jurisdic- tion in the exercise of a discretionary power, in opposition to the settled principles of law and equity, their proceedings may be corrected either by certiorari or by mandamus. Thus, where the proceedings before justices of the peace were reviewed on certiorari in the supreme court, one of the ordinary grounds for reversing the judgment of the justice was that he had, in the exercise of his discretion, refused an adjournment when he ought to have granted it had his discretion been soundly and judiciously exercised." Citing Rose v. Stuyvesant, 8 Johns. 426 ; Beehman v. Wright, 11 Johns. 442.^ The certiorari there re- ferred to must have been a writ in the nature of a writ of error and not the common-law writ, or else the court, in stating the principle, made no distinction between inferior courts and in- ferior tribunals exercising judicial power. The principle so 1 State V. Bassett, 33 N. J. L. 36; 153; State v. Green, 3 Head (Tenn.), Clifford V. Overseers, etc., 37 N. J. L. 356. 2 Brooklyn v. Patohen, 8 Wend. 47. § 4365.] CEETIOEAEI. 623 declared is one that is applicable at the present day to proceed- ings by such inferior tribunals. The common-law writ, when addressed to them, is, as we have seen, in the nature of a writ of error to review errors of law and illegalities in their proceed- ings. This distinction is well illustrated by what was said by the supreme court of ITorth Carolina, speaking with reference to an amendment of the record: "But though the propriety of an amendment of the record and the particulars wherein it is to be amended are entirely discretionary with the judge, yet if he refuses to entertain a motion to amend and to hear the evidence on the ground of want of power, then he fails to ex- ercise hi§ discretion, and therein a questiou of law is made which is reviewable on appeal when that is allowed; and in state cases, where no appeal is allowed, it is an error which may be brought up and reviewed in the exercise of the super- visory power by a writ of certiorari.'''' ' "Where the rule has been stated to be otherwise, it will be found upon investigation that in the particular jurisdiction the scope of the writ has been extended beyond what it was at common law. Discretion, the exercise of which will not be controlled by mandamus or re- viewed by certiorari, is conferred upon officers in so many cases that no attempt will be made to enumerate them. The duties of commissioners or selectmen with respect to highways clearly illustrates such a discretion. "Whether the public needs are such as to require a road, in many cases the route it shall be estab- lished, and similar questions, are left to the judgment and dis- cretion of such officers. Discretion of such a character must be left somewhere, and when fairly exercised is not subject to re- view. This question is quite fully treated under " Mamdavius" Sec. 4365. Beview of evidence. — Under the common-law doctrine, as heretofore indicated, the evidence is not subject to review. In fact, the record does not bring up the evidence only in some exceptional cases; in some jurisdictions where jurisdiction depends upon the existence of certain facts. The evidence is not preserved by bill of exceptions or otherwise.^ 1 State V. Swepson, 83 N. C. 584 Cal. 479; Benjamin v. Benjamin, 5 See also Ketchum t. Superior Court, N. Y. 383. See, however, Barber v. 65 CaL 494. Hams, 139 U. a 366. 2 People V. Board of Delegates, 14 62i SPECIAL EEMEDIES. [§ 436c. In some states erroneous conclusions from admitted facts, and which appear in the record, will be reviewed. In such cases the error is one of law, and review is confined to those juris- dictions Avhere errors of law may be reviewed upon such a writ. Thus, in Michigan, the question of the disqualification of a judge was reviewed, it appearing that the ruling was based upon a finding that the testimony of the judge did not show that he had been previously an attorney for one of the parties. It was held by the court issuing the writ that, the judge having given advice to one of the parties as to the subject-matter of the suit, this disqualified him, and the order was vacated.' In New Hampshire a sinailar error, with respect to the disqualification of a commissioner of highways, was reviewed.^ In California the error of the court in adjudging that to be a contempt which, under all the facts, could not under any circumstances constitute a contempt, was reviewed, but the court placed its ' decision, as it was forced to do if it made it, under the doc- trine of that state, on the distinct ground that the court was without jurisdiction to declare that a contempt which was not such under the law.' By statute, in some jurisdictions, review of the evidence is prohibited, hence the decision of the inferior tribunal is beyond control.* In other states statutes provide for a review of the evidence. The writ thus becomes what we term a statutory writ. Sec. 436c. New York — Rule in.— Section 2140 of the New Tork code provides that " the questions involving the merits to be determined by the court upon the hearing are the follow- ing only : . . . 4. "Whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination. 5. If there was such proof, whether there was, upon all the evidence, such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof, rendered in an action in the supreme court triable by a jury, would be set 1 Curtis V. Wiloox, 74 Mich. 69. State v. Elizabeth, 50 N. J. L. 847; 2 Moore v. Sandown, 19 N. H. 93. Vanderwerker v. People, 5 Wend. 3 In re Shortridge, 99 Cal. 52G. 530; Thomas v. People, 19 Wend. 480. estate Y. Smith, 31 N. J. L. 91; § 436c.] CEETIOEAEI. 625 aside by the court as against the weight of evidence." Section 2134 requires the clerk with whom a writ of certiorari is filed, and each person upon whom a writ of certiorari is served, " to make a return with a transcript annexed and certified by him of the record or proceedings, and a statement of the other mat- ters specified in and required by the writ." Prior to the enact- ment of this rule, the courts of New York were seemingly in conflict upon the question of the extent to which the evidence might be reviewed and considered, — not so much with refer- ence to the proceedings of courts as with respect to proceedings of other inferior tribunals exercising judicial powers, — and much of the confusion was due to the effort to justify the cor- rection of errors of such tribunals by means of the common-law writ, and in not making clear the distinction which they cre- ated between the proceedings of the two classes of inferior tribunals.' Thus, it was stated by Grover, J., in People v. Smith, 45 ISr. Y. 776 : " It must now be regarded as settled in this state that it is the duty of the court ... to examine the evi- dence, whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether in making it any rule of law affecting the rights of the parties has been violated." There are several cases in that court where somewhat similar expressions were used. They are collated in People V. Betts, supra, and the court there said in reference to them :' " It is thus seen that the office of a common-law writ has been somewhat enlarged since the decision in the 30th l^Tew York {People v. Commissioners, p. 72). But it will also be seen that it is in cases where the relator has no other available rem- edy, and where injustice would be done if the writ was not per- mitted to do its work. The rule still remains unimpaired in principle, that, xvheve there is a remedy by appeal, the writ will be confined to its original and more appropriate office, which was said to be to bring up the record of the proceedings of an inferior court or tribunal to enable the court of review to de- termine whether the former has proceeded within the jurisdic- tion, and not to correct mere errors in its proceedings." In a subsequent case it was stated: "The statute (section 2140) has ■extended the operation of the writ beyond what it had at com- 1 People V. Betts, 55 N. Y. 600. See sec. 431, ante. 40 626 SPECIAL EEMEDIES. [§ 4:36(?. mon law. Not only may the court inquire as to the jurisdic- tion of the body or the officer making the determination which is the subject of review, and whether it has pursued the mode required by law, but also whether any legal rules have been violated to the prejudice of the relator, and it may examine the facts so far as to ascertain whether the determination was supported by evidence or was against the preponderating weight of evidence." ^ Speaking further with reference to the office of the writ, where an appeal is also allowed, it was said: "The question presented for determination upon an appeal from an order of commissioners and those brought up by a writ of oer- tiorari are not the same. There is, in a general sense, the dis- tinction which exists between a review by courts of questions of fact and law. The statute authorizes an appeal in order that there may be a reconsideration by another tribunal of the merits of the application for laying out a highway in the nat- ure of a review of the action of the commissioners. The ref- erees may consider the question of the necessity of the proposed highway, whether it is required \)j the public interests and ail questions bearing upon the expediency of laying it out, and they may reverse or affirm the action of the commissioners as in their judgment they may determine."' The court reaches the conclusion that the remedies by appeal and certiorari are concurrent, and that both may be prosecuted at the same time. The section of the code referred to received constructiori by the court of appeals prior to the decision last referred to.^ Speak- ing with reference to what was held in a prior case {Peojple v. French, 110 N. Y. 494), it was said : " We did not determine in that case that the supreme court upon certiora/ri did not have jurisdiction to review the determination of the police commis- sioners upon the evidence, and it is a mistake to suppose that if there is any evidence in the record brought to the supreme court by certiorari sustaining the determination of the commis- sioners, that court has no right to interfere therewith. Such is the rule in this court, and such was the rule at common law. Eut now by section 2140 of the code, upon the hearing on the return of a writ of certiora/ri, the supreme court may inquire 1 People V. Hildreth et al,, 136 N, Y. 2 People v. French, 119 N. Y. 503. 360. § 436c?.] CEETIOEAEI. 627 ■whether there is any competent proof of all the facts necessary to be proved in order to authorize the making of the determina- tion; and if there was such proof, whether there was, upon all the evidence, such a preponderance of proof against the exist- ence of any of those facts that the verdict of a jury aflBrming the existence thereof, rendered in an action in the supreme court triable by a jury, would be set aside by the court as against the weight of evidence. Therefore in all this class of cases it is the duty of the supreme court not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence, and if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence. It is the purpose of the law to give a review in the supreme court by certiorari not only upon the law, but upon the evidence, to the extent specified in the statute, and every party who seeks such a review is entitled to the fair and judicious exercise of that jurisdiction." Sec. 4:36d Michigan — Rule in. — The statutes of Michigan authorize the removal of proceedings after judgment by certio- rari into the circuit or district court. (How. Stat., sec. 7031.) Other provisions of the statute specify the steps that must be taken. The party applying for the writ must within five days give notice to the justice of his intention of removing the cause by certiorari, and within the same time make an aJEdavit setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded ; and he must -within thirty days after the rendition of the judgment present the affidavit to a circuit judge or circuit court commissioner of any county in the state, and if he is satisfied that any error has been committed by the justice or jury in the proceedings, verdict or judgment, he shall allow the certiorari by indorsing his allowance thereon. A bond is required. The affidavit and Avrit is then to be served upon the justice. Section 7040 requires the justice to make return in writing, in which he shall truly and fully make answer to 628 SPECIAL EEMEDIES. [§ 436rf. all the facts set forth in the affidavit. And section lOU pro- vides that the court shall give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice which did not affect the merits. This statute evi- dently authorizes a review of the evidence. And if it appear there was no evidence to sustain the judgment, or, what is the same in effect, the successful party's own evidence negatives his right of action, the judgment will be reversed.^ Where the writ was quashed after being allowed, upon the ground that the decision of the justice was correct in quashing a writ of replevin for indefiniteness in the description of the prop- erty, the appellate court reversed the judgment of the justice and the circuit court, holding that the description of the prop- erty was sufficiently specific.^ It was stated by the court that " ho doubt a better remedy would have been by special appeal to the circuit court, but the statute gave the remedy by certiorari, and the party was entitled to it. And- the mere fact that such mode of proceeding prevents a trial of the original suit upon the merits is no reason for denying the right to the remedy. The writ is never a matter of right, and can only issue upon satisfying the circuit judge or court commissioner that there has been an error committed affecting the merits." ' And if the error consist in the admission of testimony, it must clearly ap- pear that injury resulted to the party against whom the judg- ment was rendered.* iNo errors are considered which are not made a ground for the allowance of the writ, and no errors are assignable in the circuit court, but the case must be decided in the return.' The office of the writ is to review questions of law and not of fact, and if there is any competent evidence tend- ing to prove the facts necessary to support the judgment, the determination of the commissioner is conclusive. The weight of evidence will not be considered.' The common-law writ is in use in that state, but its scope is extended beyond what it had at common law. The court will examine the rulings of 1 Bumham v. Gilder, 34 Mich. 246. 5 People v. Hobson, 48 Mich. 27. 2 Proper v. Conkling, 67 Mich. 344. 6 Brown v. Blanchard, 39 Mich. 390; 8 Young V. Kelsey, 46 Mich. 414 Schall v. Bly, 43 Mich. 401; McGraw ^Whaley v. Gale, 48 Mich. 193. v. Schwab, 33 Mich, la §§ 436e-4:3,6p'.] ceetioeaei. 629' the inferior court and see that injustice has not been done by erroneous rulings.^ It was said in another case, where pro- ceedings of a court commissioner in dissolving an attachment were under consideration, that the rulings of the commissioner would not be reviewed in that class of cases.^ Such a writ will lie for want of jurisdiction, if reasonably applied for, notwith- standing a remedy by appeal.' Sec. 436e. New Jersey — Rule in — The New Jersey statute provides that in all cases of certiorari, brought to remove any tax or assessment, or other order or proceeding touching any local or public improvement, it shall be the duty of the court to determine disputed questions of fact as well as of law. It was held that the statute applied to a proceeding to remove encroachments from a highway.* Sec. 436/". Utah — Rule in. — The statute of; Utah provides that " the review upon certiorari cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer. . . . That the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment either affirming, annulling or modifying the pro- ceedings below." The construction given to this statute is, that the court may require that the entire proceedings,.including the evidence, be brought up in the return, and it could look into the testimony to determine whether there is any evidence which will warrant, as matter of law, the judgment, decision or order which is the subject of complaint.' It was said that the statute was practically declaratory of the common law, but this evidently is a mistake so far as applied to inferior courts. The common-law writ does not bring up the evidence. Sec. 436gi'. West Tirginia — Rule in. — The statute of "West Virginia (see. 3, ch. 110) provides that, " when the writ lies from the circuit court to an inferior tribunal, the inferior tribunal 1 Palmer v. People, 43 Mich. 414. * State v. Groendyke, 38 N. J. L. 114. 2 SchoU V. Ely, 43 Mich. 401. 5 Gilbert v. Board of Police, 40 Pac. 'Dunlap V. Eailroad Co., 46 Mich. Eep. 264. 190. 630 SPECIAL EEMEDIES. [§ 437. shall certify the evidence and sign bills of exception, and that upon the hearing such circuit court shall, in addition to deter- mining such questions as might have been, determined upon a certiorari, as the law heretofore was, review such judgment, order or proceedings of the county court, council, justice or other inferior tribunal upon the merits, determine all questions arising on the law and evidence, and render such judgment or make such order upon the whole matter as law and justice may require." Under this statute the judgments of justices of the peace and all inferior tribunals may be reviewed upon their merits, as the merits appear from such a record.^ It was held, however, that this statute did not authorize the court, after re- versing the action of the inferior tribunal, to retry the case upon the merits and weigh the evidence ; that the power was limited to a review of the case, and to deciding every point on the law and the evidence arising on the record.^ Note 1. — Massachusetts: The statutes of this state have been amended or re-enaoted from time to time and are placed under different chapters of the revised laws. The substance of the several provisions is given under section 423 of this work, together with the construction placed upon them by the court. Note 3. — It is impracticable to embody the statutes of all the states where they exist. There are different provisions in some, applying to different pro- ceedings. They have been amended from time to time. The danger of being incorrect, and of misapplication of decisions to statutes not in force, is sufficient to Induce us to forego the task of attempting to give the statutory law in each state. The principal features of most of such statutes are sim- ilar to some of those which liave been stated. Sec. 437. Remedy by appeal and cei'tiorari concurrent.— In some jurisdictions the writ is a concurrent remedy with ap- peal in some cases. It is so in New York with respect to reviewing illegalities in proceedings of inferior tribunals,' and such rule generally prevails. It is, however, a concurrent remedy in but few jurisdictions for a review of the merits. The questions presented for determination upon an appeal f roni an order of a board or officer, and those brought up by a 1 Natural Gas Co. v. Healey, 33 W. 2 Alderson v. Commissioners, 32 W. Va. 103; Poe v. Marion Machine Va. 454. Works, 24 W. Va. 517. 3 People v. Steedman, 57 Hun, 282; People V. Hildreth, 126 N. Y. 860. § 437.] CEETIOPAEI. 631 writ of certiorari, are not the same. There is, in a general sense, the distinction which exists between a review by courts of questions of fact and law. Statutes frequently provide for a review of the merits. The office of a writ of certiora/ri is quite different. The scope of the writ and the questions which may be determined thereon are often defined by statute, and quite generally they are such as are subject to determination where the statute has not so defined, though it is said that such statutes extend the operation of the writ beyond what it had at common law. Not only questions of jurisdiction may be determined, but also whether the officer or board pursued the mode required by law, and also whether any legal rules have been violated to the prejudice of the relator ; and the facts may be examined for the purpose of ascertaining whether they are sufficient to justify the conclusion reached.^ There is nothing to prevent a relator from taking both an appeal from an order of the commissioners and suing out a certiorwri at the same time, and pursuing both remedies concurrently.^ In Texas the writ is a concurrent remedy, and it is not necessary that a party should assign any reason for riot taking an appeal.' The reason ordinarily given why the writ will not lie as a concur- rent remedy is that, the party having an adequate remedy by appeal, there is no necessity for the allowance of the writ, and such allowance being discretionary, the courts, in the exercise of that discretion, will refuse it. It is questionable whether refusal could be justified on other grounds. The constitution provides for the writ. It was stated by the supreme court of Georgia: " There is nothing in the constitution or laws of our state which prohibits a certiorari from being issued because an appeal is given from the same tribunal to which it issues. The Judiciary Act of 1T89 provides both for an appeal and a writ of certiorari from the inferior court. The nature of the two remedies is well understood, and one of the distinctions which has always been drawn between them is, that an appeal can only be had when it is expressly given, and a certiorari always lies unless it has been expressly taken away."* 1 People V. Hildreth, 126 N. Y. 860; s Ray v. Parsons, 14 Tex. 371. Eitter v. Kunkle, 39 N. J. L. 259; ^Eoserv. Marlow,R.M. Charlt.543; Hillman v. Stranger, 49 N. J. L. 192. 2 Chitty, Gen. Prac. 374 1! People V. Hildreth, 126 N. Y. 360. 632 SPECIAL EEMEDIES. [§ 43T. TJnder the general rule which prevails, certiorari will not lie when there is an adequate remedy by appeal or otherwise, or, as qualified by some courts, only to reach jurisdictional defects, which probably means that an appeal is not a sufficiently speedy and adequate remedy to reach such defects. These considerations do not affect the question of their being con- current remedies; that is, where the writ will lie there can be no objection to the party pursuing a remedy by appeal at the same time, the one to reach jurisdictional defects, the other to review the merits. Hence the courts in many jurisdictions have held, with respect to inferior tribunals other than courts, that the remedies are concurrent.^ It was held that the cir- cuit court of "Wisconsin has jurisdiction under the constitution to issue the writ of certiorari to prevent municipal authorities from levying unauthorized assessments, notwithstanding the city charter provides a remedy by appeal.^ It was said : " This remedy by appeal is only given by the charter as to matters within the jurisdiction of the common council. Certainly it was not designed to take away the remedy given by writ of certiorari. The jurisdiction of the circuit court to issue such writ is secured by the constitution of the state, and of course cannot be taken away by legislative enactment." The decision of the Pennsylvania court is to the same effect : " That the juris- diction by certiorari could not be taken away except by ex- press terms or irresistible implication." ' That certiorari and appeal are concurrent remedies to review the judgment* of justices of the peace is directly held by some courts. In fact, there exists no reason why the doctrine applied to proceedings of inferior tribunals should not be thus included. Thus, in New Jersey, where a justice of the peace proceeded without jurisdiction to render judgment, it was held that the remedies by certiora/ri and appeal were concurrent, and the party feeling aggrieved might resort to either at his option.* And where a party had taken an appeal, which was dismissed because not perfected or prosecuted, this was held no bar to the remedy by 'People V. Donohue, 15 Hun, 418; 'Overseers v. Smith, 3 S. & R. 363. "Weed V. Lewis, 30 Atl. Eep. 610. < Bitter v. Kunkle, 89 N. J. L. 259; 2 Vaughn v, Ashland, 37 N. W. Rep. Hillman v. Stanger, 49 N. J. L. 192. 809. § 438.] CEETIOEAEI. 633' certiorari; ^ and where an appeal has been taken and is pend- ing, certiorari will still lie for the purpose of seeing whether the justice has not exceeded His jurisdiction, or for correcting his proceedings subsequent to the judgment. This was held though a statute of that state provided that no judgment from which an appeal is given shall be removed into the supreme court by certiora/ri or otherwise for the correction of any sup- posed error therein; that is, for the correction of any supposed error in the judgment rendered by the justice.'' The Wiscon- sin court seem to have found an insurmountable objection to an appeal from a judgment after a writ of certiorari had been issued and served. They state that the issuance and service of the writ at once removed the entire record from the justice's court to the circuit court, therefore there was nothing left for the appeal to act upon. It was a garnishee action, and the garnishee had sued out a writ of eerUora/ri. The defendant subsequently and on the same day served his notice of appeal.' Sec. 438. Toid proceedings — Rule. — It is generally held that proceedings which are void may be reversed by certiorari, even though their invalidity was of such a character as to be subject to successful collateral attack.* There are some cases where the writ has been refused to set aside void proceedings, but not always upon the ground that such proceeding was un- necessary, though in some instances the denial of the writ was placed upon that ground.' Quite generally the writ has been denied upon the ground that the relator had another adequate remedy, and the rule prevailing in their jurisdiction being that in such cases the writ does not lie. It was held by the "Wiscon- sin court that a void order on the part of the land commission- ers in reference to a patent would not be reversed on certiorari, 1 Wheeler & Wilson Mfg. Co. v. Brackett, 27Hun, 605; Fitchv. High- CEirty, 53 N. J. L. 336. way Comm., 32 Wend. 133; Carron '2Ki-umeick v. Krumeick, 14 N. J. v. Martin, 26 N. J. L. 594; State v. L 41. Fowler (La.), 16 S. Eep. 565; Old sM'cCormick H. M. Co. v. Graves, Colony R. Co. v. FaU Elver, 147 Mass. 85 Wis. 201. 455- ^ ^ estate V. Thompson, 3 N. H. 236; 'State v. Village of Lamberton, 3/ State V. Richmond, 26 N. H. 237; Minn. 363; Spooner v. Seattle, 6 Wash. Combs V. Dunlap, 19 Wis. 591; Cran- 371. dall V. Bacon, 30 Wis. 671; Matter v. 63tl: SPECIAL EEMEDIES. [§ 438. as the order could not in any manner affect the right or claim of the petitioner.' The Massachusetts court inclines to the opinion that certiorari is the oiily available remedy to reach jurisdictional defects, as they state: "It may be questioned if the proceedings of tribunals exercising judicial functions can be impeached upon grounds which are open under a writ of certiorari. . . . The record of an inferior court or tribunal not proceeding according to the course of the common law can- not be impeached for mere informalities, either in an action of tort against one exercising authority under its order or decree, or by bill in equity to enjoin him from so doing. . . . Even if in a limited sense the error committed by such a tri- bunal may be said to affect its jurisdiction, as where notice of its proposed proceedings is defective, advantage of this can be taken by certiorari only." It was held the particular act in question (laying out a road forty instead of fifty feet in width) was an excess of authority while dealing with a matter within the jurisdiction of the officers, rather than an act with- out jurisdiction, and was therefore wholly void. It was further stated : " The office of a writ of certiorari is to correct the errors and restrain the excesses in the exercise of jurisdiction by in- ferior courts or officers acting judicially. It is not intended that their proceedings shall be attacked collaterally, which might often result in confusion and perhaps grave injustice, and careful provision has been made by legislation for the pro- tection of the rights of all parties interested when such, pro- ceedings are brought up for revision on certiorari. In such case this court, if it finds error therein, may not only quash the proceedings, but may order them to be amended; may enter such judgment as the inferior tribunal should have entered ; or may direct it to proceed anew according to law." ^ The fore- going is but an illustration of what we find in the books. But for the concluding portion of the statement as quoted, nothing appears to inform the reader that the court was speaking with reference to a statutory writ. Evidently at the outset they are speaking with reference to the common-law writ, as they state the office of such a writ, but confine it to correcting the errors 1 State V. Timme, 70 Wis. 637. 2 old Colony R. Co. v. Fall River, 147 Mass. 455, § 4:38.] CEETIOEAEI. 635 and restraining excesses in the exercise of jurisdiction. "Wlien there is an entire want of jurisdiction, and the proceedings of inferior tribunals are void for that reason, it seems that that court holds that certiorari will not lie ; that no writ is required to set them aside, and remedies by action are not barred.' Thus it was held that a statute which confers judicial powers upon selectmen, and which is to take effect upon its acceptance by the town, if not legally accepted the selectmen acquire no ju- risdiction under it, and their proceedings are void, and a writ of certiorari will, not lie to quash them.^ It would seem to follow that in that state, Avhen the officer or tribunal acts in excess of its jurisdiction, ceHiorari is the only remedy. Where they act without jurisdiction certiorari will not lie. The pro- ceedings are subject to collateral attack. The supreme court of the United States apparently hold such to be the general rule with respect to tribunals other than courts. They say : " "With the proceedings and determinations of inferior boards or tribunals of special jurisdiction, courts of equity will not interfere, unless it should become necessary to prevent a mul- tiplicity of suits or irreparable injury, or unless the proceeding sought to be annulled or corrected is valid upon its face and the alleged invalidity consists in matters to be established by extrinsic evidence. In other cases, the review and correction of the proceedings must be obtained by the writ of certiorari. This is the general and well established doctrine." It does not follow that the term other cases, as here used, includes all cases, and it would seem that the court did not intend so to declare from what is stated' immediately preceding the lan- guage quoted, as follows : " If the statutes and ordinances under which the mayor undertook to act did not invest him with any authority to render the judgments against the complainant, the judgments were void, and could not cast a cloud upon his title or impair any remedies at law provided for the protection of his property or the redress of trespasses to it. On the other hand, if the statutes and ordinances invested the mayor with authority, when new streets in the city were to be opened, to render judgments for the amount of benefits assessed against 1 Locke V. Lexington, 122 Mass. 2 Locke v. Lexington, 123 Mass. 290, 290. 636 SPECIAL EEMEDIES. [§ 438. the OAvners of adjoining property, and in this instance he failed to follow their provisions, or exceeded the jurisdiction they conferred, the remedy of the complainant was by certiorari at law, and not by bill in equity." ^ The distinction made by the Massachusetts court between want of jurisdiction and ex- cess of jurisdiction is here recognized. In the former the pro- ceedings are subject to collateral attack. In the latter they are subject to review upon certiora/ri. It is doubtful if the courts generally hold the doctrine that, where the judgment or proceedings are void upon their face, certiorari will not lie. It may be that where the tribunal is wholly without any au- thority in the premises, and such clearly appears upon the rec- ord, the writ will not lie, on the ground that the judgment or proceedings cannot, if allowed to stand, prejudice the rights of or work mischief to any person. It was so held in Wisconsin with reference to a void order on the part of land commission- ers respecting the withholding of a patent for land. The powers thus conferred upon the commissioners were not judi- cial, within the constitutional meaning of the term. The rea- son given is that the acts of the commissioners under the statute conferring the power are not binding or conclusive upon any one, and their exercise is always subject to review and correc- tion in the courts in collateral actions. The court say: "We are aware of no principle of law by which a determination of any tribunal so entirely wanting in efficacy and so barren of results can be reached by certiorari. The function of that writ is to bring up for review determinations of inferior tribunals, which if allowed to stand will prejudice the rights of or work mischief to somebody." ^ In New York it was held that where the statute prescribes the form of an order or other summary proceedings it must be followed as far as is consistent with the nature and exigency of the particular proceeding, and hence an order for the removal of fences, made by two commission- ers in the case of an encroachment of a highway, was void, it not appearing on the face of the order that the third commis- sioner was duly notified to attend the meeting of the board and apprised of the purpose for which he was required to at- 1 Ewing V. City of St. Louis, 5 Wall. 2 State v. Timme et aL, 70 Wis. 637. 413. I 438.] CEETIOEAEI. 637 tend. It was said : " But the order being void does not preclude the party from treating it as voidable, and bringing a certiorari to quash it, at his election." ^ Again it was stated, speaking with reference to highway commissioners : " If they act without juris- diction their action is not binding or conclusive, and any order they may make is a mere nullity, affecting no rights. Such or- ders can be reviewed by a common-law certiorari and vacated." ^ In State v. Mayor of St. Paxil, 34 Minn. 250, the proceedings of the mayor of the city of St. Paul in revoking an auctioneer's license were brought up for review by means of the writ of cer- tiorari. It appeared that the mayor had no authority in the premises ; that the power was vested in the common council. It was held that his act was not only not judicial, but was not of- ficial, and, the act being absolutely without authority, certiorari would not lie. Where a village board attempted, months after an election upon the question of granting license, to recanvass the vote, and declared a result different from that first declared, it was held that their proceedings were so utterly without au- thority, and consequently void, that certiorari would not lie. It was further held that the act of granting a license by the council was not of a judicial character, and hence the writ would not lie.' With respect to judgments of inferior courts, such as those of a justice of the peace, the rule generally prevails that want of jurisdiction, as well as excess of jurisdiction, is sufficient to sustain the writ. Their proceedings are wholly judicial. There might be cases where the judgment and proceedings would be so AvhoUy without the semblance of authority that it might be held the writ would not lie, yet it is difficult to conceive of such a case. Their judgments may be docketed in courts of record, execution may issue upon them, and title to real estate may be clouded, and property may be seized and sold. Nec- essarily they prejudice the rights of persons, though subject to collateral impeachment. Where the plaintiff in an action be- fore a justice of the peace failed to appear within one hour 1 Fitch V. Commissioners, 23 Wend. ' Holden v. Village of Lamberton, 132. 37 Minn. 363. 2 People V. Harris et al., 63 N. Y. 391; People v. WiUiams, 36 N. Y. 441. 638 SPECIAL EEMEDIES. [§ 438. after the time to which the cause was adjourned, it was held that the justice was bound, under the statute, to render a judg- ment of nonsuit against him. Proceeding in the cause was not error merely, but a usurpation of power not conferred by- statute ; and although the judgment may be void upon its face^ still, as it is one of the principal objects of the common-law certiorari to keep inferior courts and tribunals within their ju- risdiction, it will nevertheless be reviewed and reversed upon such writ.' The same was held where the court, in adjourning the cause for one week, lost jurisdiction in not specifying the hour of the day or the place to which it was adjourned.^ It was said by Marcy, J., in Striher v. Mott, 6 Wend. 465, in an. swer to the suggestion that, the judgment being void, there was no necpssity for the writ: " I can see no way whereby the plaintiff can prevent the judgment from being carried into ef- fect against him but by a reversal. The execution which may be issued thereon would not show upon its face a want of ju- risdiction in the magistrate, either as to the person of the party or the subject-matter of the suit. The officer would therefore be protected in executing it." The New Jersey court make no distinction between want of jurisdiction and excess of ju- risdiction, or between inferior courts and tribunals exercising judicial or g^wast'-judicial powers. Thus it was said that the supreme court has a right to review the proceedings of corpo- rations and all other inferior tribunals that do acts affecting the rights and property of individuals which are judicial or g'wasvjudicial in their nature, and may do this as well where those proceedings are wholly void for want of any power or jurisdiction in the tribunal to act as where they are illegal in consequence of some material irregularity. The judgment of a justice of the peace in a case of replevin, should he erroneously proceed in such a case, would undoubtedly be wholly void, but it also might be set aside by means of a certiorari? The same, in effect, is the doctrine of the New Hampshire court.^ While in Ohio, where the action of the mayor in entering up a judg- ment for taxes was wholly unauthorized, it was held that, the judgment being a perfect nullity, it could not be made more 1 Combs V. Dunlap, 19 Wis. 591. 3 Canon v. Martin, 36 N. J. L. 504. 2 Crandall v. Bacon, 20 Wis. 640. < State v. Eichmond, 26 N. H. 237. § 439.] CEETIOEAEI. 639 so by reversal.^ In Louisiana it seems that the writ can only be resorted to when the proceedings are absolutely null and void ; ^ and in Tennessee that the writ lies to review judgments absolutely void.' Sec. 439. At what stage of the proceedings the writ will lie. — The question whether the writ will lie before judgment is not decided alike by all courts. The character of the tri- bunal, whether proceeding according to the course of the com- mon law or otherwise, as well as the nature of the proceeding, sometimes determines the question. The New Jersey court ' states the rule to be in that jurisdiction: "It (the supreme court) has the superintendence of all inferior courts, both civil and criminal, of all corporations in the exercise of their corpo- rate powers, and of all public commissioners in the execution of their special authorities and public trusts. It causes their pro- ceedings to be certified before it in order that, upon inspection, they may be stayed, affirmed or set aside, as the case may re- quire, and that in many cases before, as well as after, judg- ment."* This court later stated that it was not ordinarily a proper use of the writ to intercept and review proceedings pre- liminary to final action, except when the court issuing the writ can continue them to completion. The operation of this rule is confined to those cases where the office of the writ is in the nature of a writ of error. In other cases it is a discretionary writ, and in the absence of any statute governing the time it shall issue, it is subject to that discretion. Where the object is to review municipal action, especially if that action is said to be beyond the corporate power, it is a frequent practice for the writ to go, while the final step that completes the in- jury is yet but threatened.^ And again it was said the com- mon-law writ still lies; but when the statutory substitute for the writ of error is used, the judgment must be final.^ In 1 Dixon V. Cincinnati, 14 Ohio, 240. State v. Commissioners, 37 N. J. L 2 State V. Koenig, 39 La. 776. 13; State v. Patterson, 39 N. J. L. 489 s Holmes v. Eason, 8 Lea, 754. « Hinchman v. Cook, 20 N. J. L. 271 * Ludlow V. Ludlow, 4 N. J. L. 367; Mowery v. Camden, 49 N. J. L. 106 Whitehead v. Gray, 13 N. J. L. 36. Quimby v. Hopping, 53 N. J. L. 117; 5 State V. Patterson, 34 N. J. L. 163; Engle v. Crombie, 21 N. J. L. 611 State V. Jersey City, 85 N. J. L. 404; •640 SPECIAL EEMEDIES. [§ 4:39. Pennsylvania it was held that in criminal cases the writ would lie before judgment when a writ of error would not lie,^ and in Virginia that the writ would lie either before or after verdict.^ "We have heretofore stated that the writ has been issued to su- perior courts to review their proceedings taken before judgment upon questions of jurisdiction only.^ "We also find that such a practice was criticised in a subsequent case, and that the "Wis- consin court, as well as the Minnesota court, contend that such is not the province of the writ. (Sec. 427.) "We find, however {supra, sees. 412 and 414), that the California court has allowed the writ to courts of record proceeding according to the course of the common law to review jurisdictional er- rors before judgment. In other cases in that state, where it was held that the writ would not lie before judgment, it was stated that the alleged errors were not jurisdictional. Thus the rule was applied where a court granted a new trial in dis- regard of the statutory method of procedure. Its action was but error and did not affect in any manner the jurisdiction of the court.* Also where a court dismissed an appeal for the failure to prosecute it. The question of such failure was within its jurisdiction, and though the court came to a wrong con- clusion, it constituted error of judgment merely.^ The general rule is that a common-law certiora/ri will not issue where a party has another adequate remedy and the law provides for an appeal or writ of error from the final judgments of such a court. Momdamus is the remedy to compel a court to proceed where it has jurisdiction. Prohibition lies to restrain a court from proceeding where jurisdiction is wanting. As prohibi- tion and certiora/ri only issue where the question involved is that relating to the jurisdiction of the court, it must follow, if the latter will issue to review the proceedings of courts taken prior to final judgment, that to a certain extent at least they are concurrent remedies — the one to restrain action, the other to annul proceedings. If certiorari will not lie prior to judg- ment, then it is demonstrated that certiorari will not lie in any 1 Commissioner v. Simpson, 3 ^ Yenawine v. Riohter, 43 Cal. 812. Grant's Cases, 438. 5 Alexander v. Municipal Court, 66 2 McCaboy's Case, 3 Va. Cas. 368. Cal. 387. 3 Hauser v. State, 33 Wis. 478. §§ 4-iO, 441.] CEETIOBAEI. 641 case to annul the judgment of superior courts if proceeding according to the course of the common law, where the party- has an adequate remedy bj^ appeal or writ of error. Sec. 440. Justices' coiivts. — Certiorari lies to annul the judg- ments of courts of justices of the peace and other inferior courts not of record, but ouly after final judgment. Such is the general rule.^ The order of the court upon the hearing is either that of affirmance or reversal of the judgment below. The writ is a writ of review. Its office is to bring up for review final deter- minations of such courts. Were the rule otherwise a writ might issue at any step in the proceedings of the inferior court and thus withdraw the case from its consideration.^ The old com- mon-law writ was frequently used to remove proceedings from one court to another, and this before judgment, but that rule in most states has been modified in this respect by judicial ac- tion to the extent that there must be a final judgment or order, and this rule as thus modified is still termed the common-law rule. Sec. 441. Tribunals other than courts. — "With respect to proceedings of officers and inferior tribunals or bodies other than established courts, there is such diversity of opinion in different jurisdictions, more or less in many cases influenced by provisions of statutes, that a general rule upon the sub- ject as now prevailing cannot be stated. In New Jersey it is stated that the common-law writ still lies, but when the statu- tory substitute for the writ of error is used the judgment must be final ; ' that a certiorari at common law goes to special and summary tribunals and brings up the whole or any part of the proceedings according to the command and exigencj'^ of the writ, and such writ may be issued before the inferior jurisdic- tion has consummated its authority.* The Missouri court, how- ever, did not have the same understanding of the common-law 1 Varrel v. Church, 36 Wis. 818; Cal- 213; People v. Walter et al., 68 N. T. Ion T. Sternberg, 38 Wis. 539; Healey 400; Lynde v. Noble, 20 Joluis. 80. •V. Kneeland, 48 Wis. 479; State v. SHinchman T.Cook,20 N. J. L.271; Cohen, 13 S. C. 198. Mowery v. Camden, 49 N. J. L. 389. 2 People V. County Judge, 40 CaL * Hinchman v. Cook, 20 N. J. L. 371. 479. See Haines v. Backus, 4 Wend. 41 642 SPECIAL REMEDIES. [§ 442. writ. They say that at common law the writ issued, when not ancillary to other process, as a writ in the nature of a writ of error addressed to inferior tribunals whose proceedings were not according to the course of the common law, and could issue on final judgments only.^ Sec. 442. Municipal corporations. — The doctrine which generally prevails in respect to inferior tribunals and oflBcers is the same as that stated respecting iiiferior courts, with the possible exception of municipal corporations, in effect that the writ only issues after final determination.^ With respect to municipal proceedings, it is stated that the common-law writ still lies at any stage of the cause.' The rule is thus stated : " It is not a proper use of the writ to intercept and re- move for review the steps in a procedure preliminary to a decision or final resolution therein, except when the court is- suing the writ can continue the proceedings to completion. But this rule is not one of universal force. Its operation is properly confined to those cases where the ofiice of the writ is in the nature of that of a writ of error, and when, therefore, its allowance is governed by similar principles. But in other cases it is a discretionary writ, in the absence of any statute requiring it to be granted, and the time for its allowance as well as other circumstances is subject to that legal discretion. Where the object is to review municipal action, especially if that action is said to be beyond the corporate power, it is a frequent practice for the writ to go, while yet the final' step that completes the injury is but threatened." * Some of the earlier decisions of the ISTew York courts would seem to indi- cate that the writ would not -lie when sought for the purpose of reviewing the oificial or corporate proceedings of a common 1 State V. Schneider, 47 Mo. App. Graham, 14 Tex. 316; Richardson v. 675; State V. Edwards, 104 Mo. 125. Smith, 59 N. H. 517; Goodwin v. 2 State V. District Court, 44 Minn. Sagadohoc County, 60 Me. 328; State 244; People v. Walter et al., 68 N. Y. v. Timme, 70 Wis. 627. 400; Grinnegar v. Norway, 33 Minn. 3 Matter of Hamilton, 58 How. Pr. 127; Galloway v. Stophlet, 1 Ohio St. 290; State v. Patterson, 34 N. J, L. 434; Palms v. Campau, 11 Mich. 109; 168. Sanders v. Plunkett, 40 Ark. 507; < State v. Patterson, 34 N. J. L. 163 r Morris V. Shyrook, 50 Miss. 590; Eve- State v. Jersey City, 35 N. J. L. 404. ridge V. Bemys, 93 Ga. 760; Kirk v. § ii2.] CEETIOEAKI. 643 council when they are of a legislative, executive or ministerial character; such as the regularity of proceedings by ordinances or resolutions, under the right of eminent domain, to open streets, constructing sewers, voting taxes, appointing officers and the like ; and the same is the general rule where the pro- ceedings are strictly of that character.^ The cases where the proceedings of such bodies have been reviewed upon certiorari were of a judicial as distinguished from a legislative character.- The rule in this respect is stated by Judge Dillon in his work on Municipal Corporations, section 926, as follows : " If an ap- peal be not given or some specific mode of review provided, the superior common-law courts will on certiorari examine the pro- ceedings of municipal corporations, even though there be no statute giving this remedy; and if it be found that they have exceeded their charter powers, or have not pursued those pow- ers, or have nGt conformed to the requirements of the charter or law under which they have undertaken to act, such pro- ceedings will be reversed or annulled. An aggrieved party is in such case entitled to certiorari, ex deliito justitia-." He evi- dently referred to judicial acts. The rule in fact is even more extended, in this: that, notwithstanding a right of appeal, the writ will lie to correct illegal action, but not to review the merits or the facts.' The proceedings under a charter to open streets are in some respects judicial. The provisions of such a charter or of a general law giving a party claiming damages an appeal to the circuit court does not preclude the superior court from exercising its supervisory power by certiorari to review questions other than those of damages solely.* In general, if municipal authorities fail to follow the provisions enacted for their action, or exceed the powers conferred, the remedy of the land-owner for the review and correction of the proceed- ings is by certiorari, — a bill in equity will not lie. 1 People V. Mayor, 3 Hill, 9; Dixon ' People t. Hildreth, 126 N. T. 360; V. Cincinnati, 14 Ohio, 340. Ritter v. Kunkle, 39 N. J. L. 359; 2 People T. Smith, 45 N. Y. 772; Ray v. Parsons, 14 Tex. 371 ; Vaughn People V. Police Board, 39 N. Y. 506; v. Ashland (Wis.), 37 N. W. Rep. 809; Kennedy V. Troy, 77 N. Y 493; Peo- People v. Wemple, 61 Hnn, 53; pie V. Fire Comm'rs, 83 N. Y. 358. Trainer v. Lawrence, 36 HL App. 91. For other cases, see Judicial Acts, * People v. Brighton, 30 Mich. 67. sec. 433 et seq. * Ewing v. St. Louis, 5 Wall. 4ia 644: SPECIAL EEMEDIES. [§ 443. Seo. 443. Writ ancillary to other proceedings.— The writ is frequently used as ancillary to other proceedings, to bring up the record, where such record is necessary to a complete understanding of the case.' Thus, if a record is defective or incomplete, the errors or omissions should be suggested and a certiorari moved to bring up a correct record.^ Such is the fre- quent use of the writ. In Ex parte Yerger, 8 Wall. 85, the power of the court and the use of the writ Avere stated as fol- lows : " In all cases where a circuit court of the United States has, in the exercise of its original jurisdiction, caused a pris- oner to be brought before it, and has, after inquiring into the cause of detention, remanded him into the custody from which he was taken, this court, in the exercise of its appellate juris- diction, may by the writ of habeas corpus, aided by the writ of certiora/ri, revise the decision of the circuit court, and, if it be found unwarranted by law, relieve the prisoner from the un- lawful restraint to which he has been remanded." It appeared that the action sought to be revised was that of a tribunal whose decisions were subject to revision by the supreme court in ordinary modes. A similar proceeding was that adopted in Ex parte Lange, 18 Wall. 163. There the court was met with the objection that the United States supreme court was with- out appellate jurisdiction to review the judgment of the subor- dinate courts in criminal cases, and Justice Clifford dissented from the opinion of the majority on this ground. It was said, however, that " the authority of the supreme court in such case, under the constitution of the United States and the fourteenth section of the judiciary act of 1789, to issue the writ, and to examine the proceedings in the inferior court, so far as may be necessary to ascertain whether the court has exceeded its au- thority, is no longer an open question. Disclaiming any asser- tion of a general power of review over the judgments of the inferior courts in criminal cases, by the use of the writ of ha- leas corpus or otherwise, we proceed to examine the case as lEx parte Jackson, 96 U. S. 727; SHudgins v. Kemp, 18 How. 530: Ableman v. Booth, 31 How. 506; Ex Stearns v. United States, 4 Wall. 1; parte Virginia, 100 U. S. 339; State Sweeney v. Lomme, 33 Wall. 308; V. Gleen, 54 Mo. 610; State v. Neel,48 Missouri, Kan. & Tex. R. R, Co. v. Ark. 383; Ex parte Lange, 18 Wall. Dinsmore, 108 U. S. 30. 163. § -±43.] CEETIOEAEI. 645 disclosed by the record of the circuit court and the return of the marshal in whose custody the prisoner is found, to ascer- tain whether it shows that the court below had any power to render the judgment by which the prisoner was held." It was said in In re Martin, 5 Blatch. 303, that " It is common prac- tice for courts to bring before them the evidence produced be- fore the committing magistrate upon which the commitment is founded ; and when the evidence is reduced to writing in the form of a deposition, whether hj the committing magistrate or by other competent authority. This is frequently done by cer- tiorari in aid of habeas corjpvs." Thus the writ will lie in aid of habeas corpus where such latter writ issues in the exercise of original jurisdiction, as well as where it issues in the exer- cise of appellate jurisdiction.' It must be kept in mind that in some jurisdictions the inquiry upon habeas corpus is more extended than in others. That in many the only question determined is that of jurisdiction, and this is determined from the petition and return. In such cases the oflBce of a writ of certiorari would be limited at least to the record. "Where the scope of inquiry is more extended, it may be the evidence may be brought up as well. In Pennsylvania certiorari and habeas corpus may be severally used as ancillary to each other. If a habeas corpxis at common law issues, and the return shows that the prisoner is held by virtue of proceed- ings in a court or before a magistrate over which the court issuing the writ of habeas corpus has a supervisory authority, the latter court may bring up the record by means of certiorari. If a certiora/ri be used to bring a case into a higher court for hearing or review, it is not only proper to issue a habeas corpus to bring up the defendant, but the only means, where his pres- ence is necessary.^ The supreme court of Georgia ' is authorit j^ for the statement that the writ lies in aid of hibeas corpus, although not specifically granted by legislative act. The consti tution itself gives such a right when it declares that the supe- rior courts shall have power to correct errors in inferior juris- dictions by a wixt of certiora/ri. In Montana the writ will also 1 In re Stupp, 13 Blatch. 501. ^ Livingstoii v. Livingston, 24 Ga. 2Gosline v. Place, 32 Pa. St. 520. 379. See also Kirby v. State, 62 Ala, 51. 646 SPECIAL EEMEDIES. [§ 443. lie in aid of habeas corpus where the proceedings are of a pre^ liminary nature and no final judgment has been rendered, and the prisoner has no remedy by appeal.^ The supreme court of Wisconsin, in the exercise of its original jurisdiction, issued the writ and determined the questions presented in two cases while the proceedings were pending and before final- judgment,^ not in aid of or ancillary to habeas corpus. Subsequently, how- ever, it virtually declared that such practice ought not to pre- vail, even though the writ could be used in such a case, which the court doubted.^ The office of such a writ, when used as ancillary to that of habeas corpus, is to bring up the record from the subordinate court for the inspection of the appellate court, in order that the court may inquire into the cause of commitment and ascertain whether the court was possessed of jurisdiction to make the order.* So the writ may be used to review proceedings upon habeas corpus,^ though when an appeal is allowed from the order of the judge or court the writ will not lie.^ A judgment of discharge, not actually void for want of jurisdiction, is a final judgment and cannot be impeached collaterally.'' The authorities are well agreed that the com- mon-law writ of certiorari will issue to review such proceedings where the prisoner has been remanded, and it would seem that upon the return to the writ the court can determine not only the question of the jurisdiction of the officer to render the order or judgment, but also whether his decision or judgment was erroneous or otherwise.^ In Michigan the writ may bemused to bring before the appellate court the acts and proceedings of courts that may or may not be embraced in the record, in con- nection with or as ancillary to a writ of error, as where the judge addressed a jury in the jury room in the absence of counsel." iln re McCutoheon, 10 Mont. 115. parte Collier, 6 Ohio St. 55; In re 2 Hauser v. State, 33 Wis. 678; Mar- Crow, 60 Wis. 849; Ex parte Milburn, tin V. State, 35 Wis. 294 9 Peters, 704; Matlies v. Colbert, 34 3 Chittenden et al. v. State, 41 Wis. Ga. 384. 285. 6 People v. Tucker, 19 N. Y. 903. *Ex parte Lange, 18 Wall. 163; ' In re Crow, 60 Wis. 349. Kirby v. State, 63 Ala. 51 ; Livingston 8 in re Crow, 60 Wis. 361. V. Livingston, 24 Ga. 379. 9 Fox v. Peninsular W. L. & C. »In re Martin, 5 Blatch. 303; Ex Works, 84 Mich. 676. § M3.] CEETIOEAEI. 647 Habeas corpus being a collateral proceeding, no question other than that of the jurisdiction of the officer or court to render the judgment of discharge can be reviewed. Thus, where a person convicted of the commission of offenses was discharged by a court commissioner upon the ground that the defendant had fully satisfied the sentence of the law, and he was re- arrested or detained by the sheriff, and he sued out a second writ directly from the supreme court, it was held that such prior judgment of discharge was final and conclusive ; that the court commissioner had jurisdiction, and that such judgment could only be reviewed upon certiorari} The discussion in- dulged in by the very able judge who delivered the opinion is devoted almost wholly to the proposition that the proceedings on the part of the commissioner, which resulted in the dis- charge of the defendant, could not be reviewed upon the second writ of habeas corpus; that the only mode of review was by certiorari. Hence, it would seem to follow that the errors of such an officer, in such a proceeding, were subject to review. It was stated by the court : " It can be readily seen that this return undertakes to have the question whether the petitioner had actually suffered his fuU sentence before his discharge, retried and redetermined upon the allegation of new facts only on the second writ of hahecos corpus, which we have seen by the authorities cannot be done. That was the real and only question adjudicated by the commissioner, amd it can he re- viewed only hy certiorari, and until review in that way isjlnal." The rule as stated by this court is: " That where a prisoner is held by legal process the writ of habeas corpus does not operate, so to speak, by way of change of venue from the court or offi- cer issuing the process of arrest, to the court or officer issuing the habeas corpus. The latter writ, in such a case, raises only the question of jurisdiction of the court or officer to issue the process of arrest." ^ If the officer, upon habeas corpus, should remand the prisoner, when in fact it appeared that the com- mitting magistrate was without or acted in excess of his ju- risdiction, then, as I understand from what Avas said in In re Crow, that would be such an error as would be reviewed upon certiorari; and if the officer should discharge the defend- 1 In re Crow, 60 Wis. 349. 2 in re Eldred, 46 Wis. 530. 648 SPECIAL EEMEDIES. [§ 443. ant upon the habeas corpus, when in fact the committing mag- istrate had jurisdiction, this also would be such error as would be reviewed and revised upon certiora/ri, and like eifect would follow the determination of the question whether the sentence imposed had been satisfied. In every such case the officer issu- ing the writ would be acting, within his jurisdiction, and the decision he might render, whether right or wrong, would be but error. The determinations of a judge or court commissioner in such proceedings, being out of the course of the common law, summary in character, where there is no right of appeal, are thus placed by the Wisconsin court upon the same footing as the determination of inferior tribunals, not judicial, but ex- ercising judicial or ^wiKi^-judicial powers. In Minnesota it was held that an order discharging a person brought up on a writ of habeas corpus could not be reviewed upon certiorari. The reasoning is, that a proceeding in habeas corpus is a special pro- ceeding, not only because it is not an ordinary civil action, but because it is so expressly classified in the statutes. An order discharging a person brought up on habeas corpus is a final order because it fully disposes of and makes an end of the pro- ceeding in which it is made. That it follows that such order may be brought to the appellate court for a full review" by ap- peal under section 8, chapter 66, Statutes of 1878, which inter alia provides that an appeal may be taken by an aggrieved party to the supreme court from a final order affecting a sub- stantial right made in a special proceeding. If, as is alleged in the case at bar, a person imprisoned for crime is wrongfully discharged upon habeas corpus, the state is the aggrieved party whose substantial right is affected. As an appeal lies from an order of discharge in habeas corpus proceedings, a certiorari does not lie, it being the settled doctrine of that court that certiorari will not lie in a case in which the appellate jurisdic- tion of the court can be adequately invoked by appeal.^ As ordinarily the only question raised by a writ of habeas corpus is that of jurisdiction of the court or officer, in criminal pro- ceedings, the question is whether the decision of the officer who made the order upon the return of the writ upon that question was correct. It would also seem by the great weight 1 State V. Buckliam, 29 Miim. 462. § 444:.] OEETIOEAEI. 649' of authority that the state is entitled to the writ to review the proceedings where the prisoner has been discharged upon Ao- leas corpus} The supreme court of Ohio, however, held that the remedy by certiorari was not available to the state, where a prisoner charged with a crime had been discharged upon habeas corpus; that the right to prosecute a writ of error, or certiorari, against one who is indicted and tried for a crime or offense is not given to the state nor to those who prosecute offenders under the laws.** Sec. 444. Contempt proceedings. — The writ lies to review proceedings against one charged with contempt, such proceed- ings being summary in character and ordinarily not reviewable upon appeal or by writ of error.' This rule does not, however, apply to orders punishing civil contempts, for the reason that such orders are appealable or the party has another adequate remedy.* The I^Tew York code provides that certiora/ri and not habeas corpxos may issue, if specifically applied for, where it ap- pears by a petition for habeas corpus that the offense for which the prisoner is detained is not bailable. It was held that under this statute the writ of certiora/ri would lie to review the pro- ceedings where a party was committed for contempt for failure to pay money as ordered by the court.' It was held that a judgment rendered refusing, in a contempt proceeding, to com- pel the party in contempt to reimburse the relator for loss oc- casioned by his contempt, was not reviewable upon certiorari. The particular ground was that the relator still had his right of private action against the party in contempt.^ There is- some controversy over the question whether, where the court 1 In re Crow, 60 Wis. 361 ; Ex parte ery v. Muskegon Booming Co., 62 N. Fonta, 3 Rob. (La.) 495; Weddington W. Rep. 561 (Mich.). V. Sloan, 15 B. Men. 147; United * State v. Leftwicli, 41 Minn. 42; States V. Wingall, 5 HiU (N. T.), 17. State v. Willis, 63 N. W. Rep. 169. 2 Ex parte Collier, 6 Oliio St. 55. (Minn.); State v. District Court, 36 3 People V. Turner, 1 Cal. 144; Lutz Pac. Rep. 757 (Mont.); Montgomery V. Aylesworth, 66 Iowa, 639; State v. v. Muskegon Booming Co., 62 N. W. District Court, 13 Mont. 347; Von Rep. 561 (Micli.). Straeton v. Lewis, 77 Iowa, 330; Peo- ^ in re Hess, 1 N. T. Supp. 811 ; State pie V. Donahue, 33 Hun, 470; State v. ex rel. Taylor v. Forbes, 143 N. Y. 219.. Leftwich, 41 Minn. 42; State v. Willis, « Montgomeiy v. Muskegon Boom- 63 N. W. Rep. 169 (Minn.); Montgom- ing Co., 63 N. W. Rep. 561 (Mich.). 650 SPECIAL REMEDIES. [§ 444. has by its order refused to punish for civil contempt, the writ will lie to review such order. In Michigan it was held that the writ would not lie in the particular case. The proceeding was against a sherifif to punish him for intentional and gross misconduct in omitting to do his duty under an execution. The court denied the application to punish the sheriff and certiorari was brought to review that action. The court held that while judgments against a party who has been subjected to liability to pay money or stand imprisoned were final, and within the jurisdiction of the supreme court to review, the refusal to give any relief in the proceeding was not a final judgment. There was nothing in the statutes which provides that such proceedings shall, in themselves, either stay or supersede any other legal remedies Avhich the relator may resort to. This being so, and the usual common-law remedies remaining open, the mere failure to punish the offender is not conclusive, or GYen prima facie, that he has not made himself liable for the results of misconduct. The court proceeds to argue, and by -analogy to Avhat was determined in a case in ISTew York quite dissimilar, that the fine ordered to be paid in civil contempts is not strictly a debt, but that the proceeding was a criminal pros- ecution, and seem to hold that where the party has been or- dered to make indemnity, even to the whole amount due, that still such proceeding is criminal, not civil, which would give the result that the payment of such a fine, in the absence of a stat- ute, would not bar the action for the debt. We have seen in the chapter on contempts that proceedings to enforce perform- ance of duty, such as the payment of money in civil actions, are civil contempts and not criminal prosecutions.' In Iowa it was said that in the absence of statutory authority there was none for reviewing, on certiora/ri, the action of a court in refus- ing to punish an alleged contempt against the authority of the court. In that state, however, there was a statute which pro- vided: "ISTo appeal lies from an order to punish for contempt, but the proceedings may, in a proper case, be taken to a higher court for revision by certiorari " (Code, sec. 3499) ; and the court gave to it the construction that the action of the court may, in a proper case, be so reviewed, whether the defendant has or 1 Schwab V. Coots, 44 Mich, 467. § 444:.] CEETIOEAEI. 651 lias not been punished, in all cases when a substantial right, either public or private, is involved, -which can only be pro-, tected or enforced by the proceeding in contempt.^ With respect to what questions will be reviewed by the su- perior court upon return to the writ in contempt cases, it must be said that the courts are so widely apart upon the proposition that a definite answer cannot be given. The question of the jurisdiction of the court to make the order is always open to in- quiry.- In the chapter treating of contempts it was stated that the doctrine generally prevailing was, that judgments in cases of criminal contempts were not subject to review upon appeal or writ of error, but orders made in civil actions or orders punish- ing for civil contempts, so called, were appealable, and hence it was quite generally held that in cases of the latter kind cer- tiorari would not lie, as the defendant had an adequate remedy by appeal. Under the provisions of the New York code, it seems that such proceedings are subject to review by means of the writ of certiorari? It is clear that the question whether the act punished is or is not a contempt is not jurisdictional. This has been fully discussed in the chapter on contempts. Hence it follows that in those courts which hold that upon cer- tiorari only jurisdictional questions will be reviewed, the ques- tion whether the act punished as a contempt was so in fact is not thus subject to review. If subject to review in other jurisdictions it must be upon the ground recognized by some, that where a court of record is proceeding out of the course of the common law, and there is no remedy by appeal, the court will review upon certiorari not only questions affect- ino- the jurisdiction of the court, but also errors and illegalities in the proceedings. The New York court of appeals is one of a number which hold that the question is not jurisdictional; * yet they hold that the question is one which may be reviewed and determined upon certiorari? Yet, by reason of the pro- visions of their code, and perhaps to some extent the exceptional 1 Lindsay v. Clayton District Court, ' People v. Forbes, 143 N. Y. 319. 75 Iowa, 509; Currier v. Mueller, 79 < Fisher t. Langbien, 103 N. Y. 84 Iowa, 316. 5 People v. Oyer and Terminer, 101 2 People ex rel. Munsell v. Court. N. Y. 245; People t. Forbes, 143 X. Y. 101 N. Y. 215; People v. Forbes, 143 219; People v. Dwyer, 90 N. Y. 403. N. Y. 219. 652 SPECIAL REMEDIES. 444a, doctrine of their courts, the cases there decided are not to be relied upon as authority in other jurisdictions. In North Car- olina, under the constitution of that state, providing that the appellate court shall have " power to issue any remedial writs necessary to give it a general supervision and control of the inferior courts," a certiorari in the nature of a writ of error lies to bring before it for review the action of an inferior court in condemning and punishing an officer of the court for con- tempt. Such writ, however, is not the common-law writ, but, as stated, is in the nature of a writ of error.^ And other states where there exists a similar constitutional provision have as- sumed the right to issue such a writ ; and in several states, by force of statute, the right to determine the question of the mat- ter charged being a contempt is exercised. The supreme court of California is of those courts which hold that, upon certiorari, the inquiry will be confined to the question whether the infe- rior court has exceeded its jurisdiction. Yet they hold that this includes the power to determine whether the matter al- leged as a contempt is such in fact ; for they argue that if it was not a contempt, then the court had no jurisdiction to pun- ish it as such.^ Sec. 444a. Who may apply for the writ — Parties. — The supreme court of Maine, as we have stated cmte, declared that where the writ is addressed to a board or inferior tribunal, they are the only respondents that can make a return. In Iowa it was held, where a proceeding by certiorari was com- menced by a resident taxpayer of the county to test the va- lidity of the action of the board of supervisors, whereby the salary of the county attorney was increased, that such attorney was a necessary party.' It is well settled that a taxpayer may maintain a proceeding by certiorari to review the action of town, county and city boards in matters where the amount of his taxes has been increased.* This rule is carried to the ex- tent that proceedings reducing the assessment of another tax- 1 Ex parte Biggs, 64 N. C. 202. « Collins v. Davis, 57 Iowa, 276; 2 For other cases, see " Contempts," Knapp v. Heller, 32 Wis. 467 ; Goetz- sec. 307. man v. Whitaker, 81 Iowa, 527; Mil- 3 Qoetzman v. Whitaker, 81 Iowa, waukee Iron Co. v. Schubel, 29 Wis. 527. 444. § an.] CEETIOEAEI. 653 payer might be thus reviewed.^ So a party injuriously affected by the action of highway commissioners, acting under a statute, in placing an encroachment upon a highway, may apply for the writ, though not technically a party to the original pro- ceedings.^ Sec. 4445. The return — Generally conclusive — Hearing. The return to the writ is conclusive of the matters therein stated, and cannot be contradicted by extrinsic evidence.' The court cannot go behind the return.^ As the writ brings up the record only, the court cannot consider the affidavits upon which it was granted. The court must decide the case upon the papers and the return to the writ, and cannot consider any afl&davit or other proofs not found therein. If the tribunal has proceeded according to law, then its determination is con- clusive and the court can inquire no further.' However, the "Wisconsin court considered the affidavits used upon a hearing to quash the writ, but only upon the question of the exercise of discretion.* In JSTew York, in the supreme court, it was held that errors in the admission or rejection of testimony could not be reviewed,'' while in Michigan the contrary is held, and such appears to be the rule of the English courts.^ That the ques- tion of law arising either upon the admission of evidence or the other rulings in the proceedings must always have a bear- ing upon the result, and the appellate court cannot, generally at least, assume that any of them have not contributed to it. It seems, also, that in the English courts, where facts exist Avhich, if apparent, would have ousted the jurisdiction, they have been allowed to be set forth in the affidavits of the relator, and a response required. Instances of this occur where the magistrate acting was disqualified by interest or other cause.' However, in this country, as we sta.te ^ost, this rule does not 1 Collins V. Davis, 57 Iowa, 356. mon Council v. State, 59 Wis. 426; 2 Campau v. Button, 33 Mich. 535. Lynch's Case, 9 Abb. N. C. 69. 3 People V. Leavitt, 41 Mich. 470; « Knapp v. Heller, 33 Wis. 467. People V. Fire Commissioners, 73 N, 'People v. Hair, 35 Hun, 135. Y_ 437. 8 Jackson v. People, 9 Midi. Ill, < People V. Morgan, 65 Barb. 473; and cases cited. People v. Burton, 65 N. Y. 452. 9 Jackson v. People, 9 Mich. Ill, 5 State ex rel. Manitowoc County and cases cited. V. County Clerk, 59 Wis. 15; Com- 65i SPECIAL EEMEDIES. [§ iiio. prevail. The return and the record proper are all that is ex- amined by the court, including the evidence in certain cases for certain purposes, unless in pursuance of statutory authority. Sec. 444c. The judgment. — The judgment rendered by the court of review, where it is not otherwise provided by statute, is either that of aifirmance or reversal of the proceedings of the inferior tribunal.' Thus where the supreme court, in reviewing the action of referees appointed in highway proceedings, made an order as follows : " Decision of the referees vacated ; order appointing them set aside, the appeal to stand to be deter- mined by a new board of referees to be appointed by the county judge," it was said by the court of appeals: "The certiorari was directed to the referees, and brought up for review only the proceedings and determination of those officers, and the only duty devolving upon the supreme court was to affirm or reverse their proceedings and decision. This was the extent of the authority resting in that court. ... It (the writ) did not bring up the proceedings prior to their appointment, or present any question in regard to the regularity or correctness of the order appointing them, and it must necessarily follow that it was erroneous in that court to set aside such order and prescribe future action in the case. As above suggested, the au- thority of the supreme court was limited to a reversal or affirm- ance of the order and proceedings of the referees." Where a justice of the peace vacated and set aside a judgment rendei;ed before him, which was an act clearly in excess of his powers, upon certiorari it was held that the court of review was lim- ited to affirming, annulling or modifying the order thus made. It could not affirm the original judgment.^ Where a justice lost jurisdiction in an action of replevin by failure imme- diately on receipt of the verdict to enter an order in his docket requiring the officer to deliver the goods and chattels men- tioned in the verdict to the plaintiff and to adjudge that he recover such damages and costs, such being required by stat- ute, and upon certiorari the court of review properly reversed iLuflev.Pope,7Hill,557;Whitbeok patrick, 35 Cal. 369; Bandlow v. V. Hudson, 50 Mich. 86; People v. Thieme, 53 Wis. 57. Ferris, 36 N. Y. 218; Winter v. Fitz- 2 winter v. Fitzpatrick, 35 Cal. 269. § ■i-tid.'] CEETIOEAEI. 655 the judgment of the justice entered on a day subsequent, and in addition ordered the property restored to the defendant, and in case such.return could not be had, then that the defend- ant have and receive from the plaintiff their value, it was held this was in excess of the power of the circuit court. It had no power to do anything more than to reverse or affirm the judg- ment of the justice with costs. That the writ did not bring up the evidence for review, but only the record, and that only for the purpose of enabling the circuit court to determine whether the justice had jurisdiction to render the judgment complained of.' Sec. 444^. The judgment — Effect of statutes. — In many states, however, statutes authorize courts of review to affirm, reverse or modify the judgment of the inferior court or tri- bunal, or enter such judgment as the court below should have rendered, or enter such judgment, order or decree in the prem- ises as law and justice may require. The language is not the same in the several states where statutes exist modifying the common law in this respect, nor are the powers thus extended as full as here stated, in some ; yet in all the power is granted to change or modif j"^ the j adgment below. The language stated is that of the Massachusetts statute, and it was held in that state that the statute does not enlarge the authority of the court to examine the matters passed upon below, but merely enables it, after examining the case according to the rules of law, to embody the result in a new judgment, framed so as to secure the rights of all parties, instead of being limited, as it was be- fore the statutes were amended in this respect, to quashing or affirming the judgment below.^ The Michigan statute is some- what different. There the court is authorized to " give judg- ment in the cause as the right of the matter may appear, with- out regarding technical omissions, imperfections or defects in the proceedings before the justice which did not affect the merits ; or to affirm or reverse the judgment in whole or in part." It is held that where the result in the circuit court is 1 Smith V. Bahr, 62 Wis. 244. See 2 Farmington R. W. P. Co. v. Coin- also Starkweather v. Sawyer, 63 Wis. missioners, 112 Mass. 206. 297. 656 SPECIAL EEMEDIES. [§ Hid. the same as below, the judgment should be a simple affirmance, with or without costs.^ Yet it is not error for the circuit court to enter a new judgment against the plaintiff in certiorari and Tiis sureties for the amount of the judgment and costs in the justice's court, with interest thereon up to the date of the new judgment in the circuit court. The new judgment is a substi- tute for the other. '^ In a later case the judgment of the circuit court was that the judgment of the justice be in all things af- firmed and stand in full force and effect, and then proceeded to adjudge anew that the defendant in error recover against the plaintiff in error and his surety the amount of the judg- ment below and interest, and that he have execution therefor. It was contended that there were thus two judgments — one in the justice's and the other in the circuit court. It was held, however, that the whole entry in the circuit court should be taken together; that the latter judgment was the only one that could be enforced ; that the judgment of the justice was xaerged therein.' The statute authorizes the court of review to enter an entirely new judgment, even to the extent of re- versing that of the justice, and giving judgment for the oppo- ■site party, which he established as appears from the record.* Yet the right to judgment must appear as matter of law from the record or by undisputed evidence. The court of review cannot weigh the evidence and reach therefrom a different conclusion from that of the justice.' In an early day Wiscon- sin provided for the use of a statutory writ. It empowered the court on certiorari to affirm or reverse the judgment in whole or in part, and to make any such final order or judg- ment as should be proper in furtherance of justice. It was held that the statute did not authorize a reversal of the judgment and the entry of a new one; that it did not confer any new power upon the court, but merely repeated in another form, for greater caution, the power conferred in the previous part of the section.^ The statute of New York contained language iDooley v. Eilbert, 47 Mich. 615. ^McClatoMe v. Durham, 44 Mich. ^McDermid v. Eedpath, 39 Mich. 435. ■^'^^- * Overpack v. Ruggles, 37 Mich. 65. 3 Reingelberg v. Peterson, 76 Mich. 6 Dykens v. Munson, 3 Wis 181 107. §§ 4Me, 444/".] ceetioeaei. 657 of the same import, and the conclusion reached by the court there "was the same.^ Sec. 444e. The judgment — Inferior court without juris- diction. — "Where it is determined that the inferior court was without jurisdiction, then of course a new judgment or a judg- ment upon the merits cannot be rendered. The principle is elementary that if the subordinate court is without jurisdiction the superior court cannot gain it by reason of the writ. The very question was determined by the supreme court of Mississippi (Morris v. Shyroclc, 50 Miss. 590). • The statute provided that " when any cause is removed on certiorari to the circuit court, that court should be confined to the examination of questions of law arising or appearing on the face of the record and pro- ceedings; that in case of affirmance of the judgment of the justice the same judgment shall be given as on appeal, and that in case of a reversal the circuit court should enter up such judg- ment as the justice ought to have entered, if the same were apparent, or should proceed to try the cause anew on its merits." It was held that when the justice of the peace had no jurisdic- tion of the case, the circuit court could not entertain jurisdic- tion, and hence could not render a judgment on the merits. The same conclusion was reached by the supreme court of Ten- nessee.* Sec. 444/. The judgment — Dismissal of proceedings. — Courts frequently have, where it was determined to affirm the judgment, ordered a dismissal of the proceedings under the writ. Such practice is improper, and in some jurisdictions fatal. Such an order is only proper for defects in the writ or the service or the want of jurisdiction. A reason given is that on appeal from a judgment of affirmance the regularity of the proceedings be- fore the justice, so far as they were capable of being inquired into on the writ, could be inquired into by the appellate court, while on appeal from a judgment of dismissal the only inquiry can be as to the cause of dismissal, and if it appear there was no cause the judgment must be reversed.' In another case dis- 1 Sheldon v. Quinline, 5 Hill, 440. ^ Morse v. Spees, 25 Wis. 543 ; Owens 2 Dixon V. Caruthers, 9 Yerg. 80. v. State, 27 Wis. 456. 42 658 SPECIAL EEMEDIES. [§ 444^'. posed of at the same term, the court upon appeal from such a judgment reviewed the merits and came to the conclusion that the judgment of the justice should be reversed. It was said as that form of judgment appears to have been adopted as proper, where there appeared no reason for reversing the judgment of the justice, and the merits were fully argued, we have consid- ered them.^ The case of /State v. Washoe County, 6 Wev. 104, pre- sented the same features as that of McNamara v. Sj)ees, supra, and the Nevada court considered the judgment of dismissal equivalent to an affirmance of the judgment of the lower court; and in Burrow v. Sanders, 57 Miss. 211, the court held, while it deemed the practice improper, yet as the same result was ob- tained by dismissing the writ as if the proceedings had been examined and the judgment affirmed, it would not disturb the judgment. It would seem that this practically unimportant question of practice ought not to occasion conflict of judicial opinion, yet we find the courts are at variance. Thus, in Florida it was stated by its court : " Upon such writ (common-law writ of certiorari) we neither affirm nor reverse a judgment, nor try the case upon its merits. We must either quash the proceed- ing of the judge of the circuit court or quash the certiorari which brings it here;"^ and such appears to have been held in Ala- bama.' Such also is the practice in Illinois,^ and apparently in Louisiana.^ Of course such a judgment is proper where motion to quash the writ is granted without any review of the merits ; * and a judgment is proper quashing the proceedings of »the in- ferior tribunal where it is determined that its proceeding was without or in excess of its jurisdiction.'' Sec. 444^. The judgment — Power to affirm or reverse in whole or ill part.— Statutes in some instances provide that the court may reverse in whole or in part, and quite generally it is held that where the excess of jurisdiction affects only a part of the judgment, which part is severable and distinct from iMoNamara v. Spees, 25 Wis. 539. « People v. Nearing, 27 N. Y. 306; 2 Basnet v. Jacksonville, 18 Fla. 533. Carpenter's Case, 14 Pa. St. 486; State SMoAlUlley v. Horton, 75 Ala. 491. v. Duluth, 53 Minn. 238. ■» Brown v. Roberts, 133 IIL 631; "Brush v. Detroit, 33 Mich. 43; Hamilton v. Harwood, 113 111. 154. Morse v. Spees, 25 Wis. 543. 5 State V. Judge, 36 La. Ann. 977. § 444^.] CEETIOEAEI. 659 that within the proper jurisdiction of the inferior tribunal, then only such excess will be quashed.^ In fact, such is the practice at common law; ^ but where the several parts of the proceeding are connected together and depend upon each other, there the whole must be quashed and not a part.' In the case last cited it was stated by Shaw, C. J. : " It appears to be well settled that upon a return of a writ of certiorari the court will not enter a new judgment where the proceedings are found erroneous; but if the proceedings are so independent of and disconnected with each other that a part may be quashed and leave the remainder an entire beneficial and available judgment for the purposes for which it was intended, the court may quash that which is erroneous and aflfirm the remainder." This rule was applied where the plaintiff in an action in an inferior court recovered judgment for a small sum, which was adjudged to be a lien upon certain logs (the statute giving a lien in certain cases). Upon oertiorari to the circuit court the judgment was reversed in toto upon the ground that the logs were in another county, and not within the jurisdiction of the inferior court rendering the judgment. Upon an appeal to the supreme court it was held that the judgment as to the lien should have been quashed by the circuit court, but as to the personal judgment, which was clearly correct, it should have been affirmed. That part of the judgment which gave a lien upon the logs is distinct and sepa- rate from that which gave a personal judgment; consequently the circuit court should have quashed that part and affirmed the remainder.* Where judgment was erroneously entered against a garnishee for an amount of money and also for the delivery of certain notes, where it appears that he admitted having the notes but denied having the money, it was held that the supe- rior court should not have reversed the whole judgment, but should have merely set aside the personal judgment against the garnishee and have required him to turn over the notes.' This iShafer v. Hogue, 70 Wis. 393; 'Sliafer v. Hogue, 70 Wis. 393; Commissioners v. Blue Hill Turnpike Commissioners v. West Boston Bridge Co., 5 Mass. 420; Commissioners v. Co., 13 Pick. 196. West Boston Bridge Co., 13 Pick. 196; ^ Shafer v. Hogue, 70 Wis. 393. Gray v. Wilcox, 56 Mich. 58. 3 Hallett v. Blain, 58 Ga. 143. ^Shafer v. Hogue, 70 Wis. 393; Bandlow v. Thieme, 53 Wis. 59. 660 SPECIAL EEMEDIES. [§ 444^. feature of the common law or provision of statute, as the case may be, is entirely distinct from other statutory provisions which in effect authorize the court to enter such judgment as the court below should have rendered, and make such judgment or decree in the premises as law and justice require. Under such statutory authority the court can render a new judgment where the one rendered is erroneous, and so appears from the record and undisputed facts. Care should be observed in con- sulting the cases with respect to this distinction. Where there were two distinct informations and the justice considered there were two distinct offenses, and in fact the whole constituted but one offense, it was held that the proceedings as to the one must be quashed and as to the other affirmed.^ "Where one convicted of an offense is sentenced for a term exceeding that authorized by law, the rule stated has no application. There are no distinct and separate parts of the sentence. "Where an error in highway proceedings relates solely to the question of damages awarded or the right of an individual thereto, the pro- ceedings are so far independent of those in relation to the loca- tion and acceptance of the road that the former may be quashed and the latter affirmed ; "' but where the proceedings are void for want of notice the entire proceedings will be quashed, and not merely quashed as to a part of the highway which injuriously af- fects the complaining parties and affirmed as to the remainder.^ Where county, town and school taxes have been separately as- sessed, and the proceedings are illegal only as to one, the pro- ceedings relating to such assessment alone may be quashed and the assessment as to the others affirmed.^ The rule has also been held to apply to illegal items included in the tax levy and warrant: such errors are independent and unconnected with the other items making up the assessment; ^ also to correcting illegal assessments in not making the proper deductions from the capital or capital stock of corporations.^ It appears from 1 Commissioners v. Derby, 13 Mass. * Vance v. Little Eock, 30 Ark. 435 ; 433. ^ State v. Quaife, 23 N. J. L. 89. 2 Minot V. Cumberland Co. Com'rs, 5 People v. Westchester County, 57 38 Me. 131. Barb. 877. 3 Names v. Commissioners, 30 Mich. "^ People v. Board of Assessors, 39 490. N. Y. 81; People v. Ferguson, 38 N. y. 89., §§ -i-il/i, 444*.] CEETIOEAEI. 661 the decisions of the courts that costs which are allo-wed in favor of the successful party are so far independent of the judgment proper that the part of the judgment for costs may be quashed and that for damages affirmed.^ The rule has no application to judgments against joint tort-feasors or joint trespassers.^ Sec. 444A. The judgment — ConclusiTC eifect of. — Judg- ments upon the merits in certiorari proceedings are final and conclusive. Where, however, the proceedings are dismissed for irregularities merely, this may not preclude another appli- cation, nor operate as a bar.' Sec 444/. Costs — Question of. — The question of allowance or disallowance of costs by the court of review is, like almost every other question involved in the proceeding by certiora/ri, the subject of conflict of judicial opinion. In some of the states the question is regulated by statute. At common law costs €0 nomine were never given to either party in any action what- soever. But although not given by the name of costs, yet in reality they were alwaj's included in the quantum of damages in actions where damages Avere given, and in such cases were assessed by the jury.* Statutes in all of the states provide for allowance of costs in actions at law, and it has been urged that such statutes were applicable to certiorari. Hence, courts have been compelled to determine the nature of the proceeding. It has been determined that certiorari is not an action at law, and hence the statutes relating to costs in such actions can have no application.^ The proceedings have been classed as special proceedings, and hence such costs as by statute were allowed in such proceedings were to be allowed on c&rtiorari. Such were early decisions in ISTew York based upon a statute of that state.'^ (Sec. 31S, old code.) The court of appeals, iHurlburt t. "Wilcox, 19 Wis. 419; < Justice Hornblower in AUer v. Nichol V. Pattei-son, 4 Ohio, 300; Rob- Shurts, 17 N. J. L. 188. inson v. Hedges, 3 N. J. L. 263. ^ stetson t. County Commissionei-s, 2 Sheldon v. Quinline, 5 Hill, 441; 73 Me. 17. Eichards v. "Walton, 13 Johns. 434. ^ gee Haviland v. "White, 7 How. s State V. "Washoe County. 13 Nev. Pi-. 134: People v. Flake, 14 How. 17; Hendrix t. Kellogg. 33 Ga. 435; 537: People v. Van Alstyne, 3 Keyes People T. Kingston, 101 N. Y. 83; (N. Y.), 35. North River Meadow Co. v. Christ Church, 33 N. J. L. 434 662 SPECIAL EEMBDIES. [§ 44:4^. however, in subsequent cases have held that the common-law writ is in no sense a special proceeding;' and still later it re- affirmed the doctrine expressed in previous cases that costs were not allowable on a oommon-law writ, but held that the statutory writ was much broader, where it authorized a review and correction of the decisions and actions of inferior tribunals which entitled it to be denominated a special proceeding. Hence costs might be allowed.^ It has been urged that costs were allowable by reason of the analogy between writs of error and c&rtiorari; but the answer has been that a writ of error only lies to a court proceeding according to the course of the com- mon law, and certiorari only lies to a tribunal not proceeding according to the course of the common law.' Note. — In many states actions and special proceedings are defined by statute. Thus, an action is declared to be an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punish- ment of a public offense. Every other remedy is a special proceeding. It must follow that in those states where such a statute exists, other provis- ^ ions relating to costs in special proceedings are directly applicable to cer- tiorari. Says Woodruff, J., in People v. Board of Police, 39 N. Y. 506: "It is quite clear that on a common-law certiorari costs were not recoverable by either party against the other. It was fitting that this should be so, as, in general, the people were the plaintiffs in certiorari, and some tribunal or body exer- cising powers judicial or giiasi-judicial was defendant. In favor of both good faith was to be presumed, and the errors alleged, and, as the case may be, committed, were errors in law only. Where the relator, at whdse in- stance the writ was sued out, was seeking to maintain some private right, property or privilege, there might be reason for providing that he should be liable for costs in case of afiirmance. but as to the defendant there would still be the same groimd of immunity in case of reversal. It is not accord- ing to our sense of propriety or expediency that public officers, boards or judicial tribunals should act under the peril of being charged with costs if they err in their judgment of the rules of law.'' By statute in some of the states the allowance of costs is within the discretion of the court. Thus, the statute of Maine, chapter 102, section 14, provides " that upon every application 1 People V. Board of Police, 39 N. Y. 3 Commonwealth v. Ellis, 11 Mass. 506 ; People v. McDonald, 09 N. Y. 369. 465. 2 People V. Commissioners, 76 N. Y. 64 § mi.] CEETIOEAEI. 663 for certiorari and on the final adjudication thereof, the court may award costs against any party who appears and under- takes to maintain or object to the proceedings." It was said: •" By this section a limit is imposed upon the discretion of the court; costs cannot be awarded against a party who appears and does not defend aga,inst the proceeding. This is because a person who has acted in a judicial capacity ought not to be subjected to costs in cases where his errors are corrected with- out any opposition on his part. He stands in the position of a respondent in equity who puts in a disclaimer. In equity, the complainant having had probable cause to proceed against a respondent who disclaims, neither party recovers costs.^ There are courts which find authority in the nature of the proceeding, independent of statutes, to exercise a discretion in allowing costs in certain cases.^ Where the right to costs exists either by force of statute or otherwise, the question is limited to the amount and the party which is entitled thereto. Statutes in some instances provide that the costs shall be the same as is allowed upon appeal. The question is often present where the ■court has power to render a new judgment, and it is less favor- able to the respondent than that of the tribunal below as to which party is entitled to costs. Usually upon appeal, the re- spondent, so long as the judgment is not reversed, recovers costs, and such by force of the statute would be the result upon certiorari? So, also, where the writ is dismissed, costs will be ja warded against the petitioner.* And it is held in some juris- dictions, where the court was without jurisdiction to issue the writ, that it had no power to award costs upon dismissal for such reason.' The appellate court, on appeal from the judg- ment of the court of review, may, it seems, award costs of ap- peal in its discretion.* The New York court of appeals, however, subsequently decided, upon direct consideration of the question, 1 Stetson V. County Commissioners, ever, Barnes v. Robinson (Tenn.), 4 73 Me. 17. Yerg. 186, apparently contrary. 2Aller V. Shurts, 17 N. J. L. 188; ^Dye v. Noel, 85 11.1. 390. ■State V. Meyer, 40 N. J. L. 353. See, SDeston v. Boyd, 31 Ark. 264; Taul however, Stiers v. Stiers, 20 N. J. L. v. Collingsworth, 2 Yerg. (Tenn.) 579. 53_ 6 Adams v. Abram, 38 Mich. 303; 3 Chance v. Haley, 6 Ind. 367; Nor- People v. Wheeler, 21 N. Y. 82; Peo- ton V. Walker, 19 Tex. 103. See, how- pie v. Van Alstyne, 8 Keyes, 35. 664 SPECIAL EEMEDIES. [§ 444f. that costs upon appeal from proceedings upon a common-law writ were not allowable.^ Sec. 444/. Review of tlie judgment of the court of review hj the appellate court. — The question of the right to appeal from the judgment of the reviewing court is another question which is the occasion for a conflict of judicial opinion. The allowance of the writ being discretionary, this is urged as a reason against the right of appeal, as appeal does not lie to review discretionary acts. Yet, as we have seen, in some juris- dictions the propriety of granting the writ is determined upon hearing, and, if allowed, then thereafter the proceedings are of strict right ; while in others the writ is allowed more as a mat- ter of course, and the discretion is exercised at the hearing upon the return. The rule seems to be that, when the proceeding is final and affects a substantial right, the right of appeal exists, such as a judgment upon the' hearing, whether it be in form that of affirmance or reversal, or dismissal of the writ or quash- ing the proceedings. But where the court refuses, in the exer- cise of discretion, to allow the writ, then that such order is not appealable, unless it may be in a clear case of an abuse of dis- cretion. As it seems that in the latter class of jurisdictions above mentioned the discretion that may be exercised extends to the appellate court, no good reason appears why the right of appeal does not exist even where the court below has exercised its discretion, not because the appellate court may exercise its discretion, but on the ground that there may have been an abuse of discretion, which can be determined in no other way, as well as on the ground that such order of refusal does aft'eot a substantial right, and for the purposes of appeal is a final order made in a special proceeding. Of course authorities may be found to the contrary, but there is conflict on every proposi- tion;^ the distinction being made by some courts that where the writ is dismissed, then only the regularity of the proceed- ing is reviewable upon appeal.^ In ISTew York it was held that 1 People V. Nelliston, 79 N. Y. 638. ler, 32 "Wis. 467; Shafer v. Hogue, 70 2 See section 415, treating the ques- Wis. 393; Morse v. Spees, 25 Wis. 543; tion of discretion. Moede v. Stearns Owens v. State, 27 Wis. 456. County, 43 Minn. 312; Knapp v. Hal- 3 Morse v. Spees, 25 Wis. 548. § 444;.] CEETioEAEi. 665 an appeal would not lie from an order denying a motion to quash.' Yet it was said that case was not an authority for the proposition that an order denying the motion to quash a certi- orari irregularly or improperly issued in a case not reviewable on certiorari is not appealable, as when the proceedings sought to be reviewed were not of a judicial character.^ Note.— There is a distinction to be observed between the right of appeal and the determination of questions upon appeal. Thus, there is a difference between saying that an appeal does not exist to review discretionary acts, and saying that upon appeal discretionary acts will not be reviewed. The right to appeal exists from the character of the proceedings as affecting a substantial right. What shall be considered and determined upon that ap- peal is another question. Thus it was said by the IsTew York court of appeals: "The writ was applied for under the provisions of the code of civil procedure, which by express provision makes its allowance dis- cretionary with the court. Such an order is not reviewable by this court. If the court in making the order had refrained from exercising its discretion in passing upon the question pre- sented, and had quashed the writ upon the ground of a want of power to issue it, or had granted it in a case not warranted by law, this court could properly have reviewed the questions presented by an appeal from such determination. But in a case where that court has exercised its discretion with respect to the allowance or denial of the writ, and has refused to grant it on the ground that it ouglit not, under all of the circumstances of the case, to have been issued, this court has no jurisdiction to review its determination, and so it has been repeatedly held." ' Note. — The court may not, as a rule of practice, review the exercise of discretion in inferior courts, but that it is a question of jurisdiction may well be doubted. It has jurisdiction to determine whether the court has exercised its discretion, and a wrong decision of that question, as that court has frequently held, does not affect its jurisdiction. Besides, precedents are numerous in that court and many others, that an abuse of discretion is not the exercise of discretion; that arbitrary action is sometimes an abuse of discretion, and that the appellate court, by reason of its superier powers, if upon no other ground, will correct such abuse where it has been exercised. 1 Jones V. People, 79 N. Y. 45. ' People v. McCarthy, 103 N. Y. 630. 2 People V. Commissioners, 97 N. Y. 37. 666 SPECIAL REMEDIES. [§ 444/. In a subsequent case {Matter of Oorwin, 135 IST. Y. 245) it ■vva-s said with respect to the allowance of a common-law writ of certiorari: " The granting or refusal of which by the supreme court has always been held to be so far discretionary that an order of the court quashing the writ is not reviewable here, unless it affirmatively appears that the discretion of the court was not exercised in granting it." Note. — An act regulating the review of assessments, etc. (ch. 269, Laws 1880), is held to be independent of the writ of certiorari recognized by the code, and in such cases the writ is a matter of right and the court is with- out discretion. Such was the rule in Alabama,^ but by statute appeals are expressly provided ; ^ and in Maryland, where no appeal is pro- vided for, the judgment is final and conclusive.' In Florida,'' Missouri,^ West Virginia,^ Wisconsin,' Michigan,* Illinois,' and in most of the states, the right of appeal is recognized, and in Tennessee '" and California ^^ this right is confirmed by statute. In Illinois it is expressly held that the discretion of the court is subject to review,^^ and in Virginia " that the refusal to issae the writ, or the propriety of issuing it, may be reviewed in the supreme court of appeals by writ of error. The judgment of the appellate court is ordinarily either that of affirmance or reversal." I know of no reason why the appellate court has not the same power with respect to modification that it has with respect to other judgments at law. 1 Carter v. Douglas, 2 Ala. 499. w Lawson v. Scott, 1 Yerg. 93. 2 Ex parte Candee, 48 Ala. 386. n Brewster v. Hartling, 37 CaL 15; 3 Baltimore, etc. Turn. Co. v. North- Winter v. Fitzpatrick, 35 Cal. 269. ern Cent. E. Co., 15 Md. 193. 12 Board of Supervisors v. Magoon, i Deans v. Wilcoxson, 18 Fla. 531. 109 111. 143. 5 Hill v. Young, 3 Mo. 337. "Board of Education v. Hopkins, 6 Board of Education v. Hopkins, 19 W. Va. 84. 19 W. Va. 84. H McClatchie v. Durham, 44 Mich. 'Knapp V. Heller, 33 Wis. 467; 435; Young v. Kelsey, 46 Mich. 414; Morse v. Spees, 35 Wis. 543. Lamar v. Commissioners, 21 Ala. 773; 8 Adams v.Abram, 32 Mich. 303-304. Memphis, etc. R. Co. v. Brannum, 96 9 Board of Supervisors v. Magoon, Ala. 461; Vance v. Little Rock, 30 109 IlL 143. Ark. 435. CHAPTER 25. PROHIBITION — WRIT OF. Sec. 445. Definition and nature of the writ. 446. Writ lies only where there is a want of jurisdiction. 447. Excess of jurisdiction. 448. When granting the writ is dis- cretionary. 449. Writ only issues to restrain the exercise of judicial functions. 450. Legislation — How far subject to control by. 451. Removal of officers. 453. Administrative action. 453. Executive ofiicers. 454. Ministerial officers — Taxing offi- cers — Sheriffs, etc. 455. Boards of review. 456. Jurisdiction, question of. 457. Illustrations of the application of the rule. 458. Rule further illustrated. 459. Contempt proceedings. 460. Whether acts or words alleged are contempts, not a question of jurisdiction. 461. Disobedience of void order. 463. Distinction between void and voidable orders. 463. California, rule in. 464. Iowa, rule in. 465. Courts-martiaL 466. Another adequate remedy avail- able— Effect. 467. Rule generally in state courts. 468. Illustrations of the application of the rule. 469. Rule not applicable where court is proceeding against an ex- press prohibition of a statute. 470. Where judge disqualified. 471. Remedy must be speedy and ade- quate. 473. Judgments appealed from. 473. Inferior courts — Splitting de- mands. 474 Improper service of process. 475. Removal of causes — State court proceeding notwithstanding. 476. Venue — Court proceeding where right to change of, es- tablished — Action brought in wrong county. 477. Granting new trials — Interest of judge. 478. Suggestion first made in court below. 479. Title to office. 480. Stage of proceedings when writ wUl issue. 481. Writ ordinarily does not lie after proceedings are closed. Sec. 445. Definition and nature of the writ. — A most full and accurate definition of the nature of the remedy and ofiice of the writ of prohibition is given by Blackstone (3 Com. 111). He says: "The other injury, which is that of encroachment of jurisdiction, calling one, coram nonjudicCy to answer in a court that has no legal cognizance of the cause, is also a grievance 668 SPECIAL EEMEDIES. [§§ 446, 447. for which the common law has provided a remedy by the writ of prohibition. A prohibition is a writ issuing properly out of the court of king's bench, being the king's prerogative writj but for the furtherance of justice it may also be had in some cases out of the court of chancery, common pleas or exchequer, directed to the judge and parties to a suit in any inferior court, commanding them to cease from the prosecution thereof, upon suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court." Changing only the name of the court from which the writ issues, these words de- fine with exactness the nature and extent of the remedy as known and applied in this country.^ Sec. 446. Writ lies only where there is a want of jurisdic- tion. — The writ lies only where the subordinate tribunal has no jurisdiction at all in the premises, or where, having juris- diction, some question arises which is not within the power of the court to decide.^ The use of the writ is not confined to those cases where the court has no jurisdiction originally of the subject-matter, but extends also to those cases where the court having such jurisdiction is about to exceed its powers, and to do that which it has no power to do at all. In other words, the writ will lie to confine tribunals within the limits of their powers.' Sec. 44T. Excess of jurisdiction. — The writ has a proper but a restricted and limited ofiice, and it cannot be enlarged so as to bring within its scope and operation questions merely collateral or incidental to its direct purpose, or more or less intimately connected with such purpose and object. It cannot be made a drag-net by means of which all controverted and litigated questions between individual suitors may be brought into court and tried and determined, for its ofiice, as we repeat, is to prevent the exercise by a tribunal possessing judicial pow- 1 State ex i;el. Kellogg v. Gary, 435; Smith v. Whitney, 116 U.S. 167; Judge, 33 Wis. 93. Ex parte Gordon, 104 U. S. 515. 2 State ex rel. De Puy v. Evans, 88 3 Smith v.. Whitney, UC U. S. 167; Wis. 255; Mam-er v. Mitchell, 53 Cal. Ex parte Gordon, 104 U. S. 115: Ex 289; Curtis v. Superior Court, 63 Cal. parte Pennsylvania, 109 U. S. 174 § 448.] PEOHIBITION WEIT OF. 669 ers of jurisdiction over matters not within its cognizance or exceeding its jurisdiction in matters of which it has cognizance. It is a prcTentive rather than remedial process, and cannot take the place of a writ of error or other proceeding for the review of judicial action, or of a suit in equity to prevent or re- dress fraud.^ Hence, though a court may have jurisdiction of an action, prohibition will lie to. forbid it to issue a writ not authorized by law.^ And though a county court has jurisdic- tion to canvass and certify the returns of a county-seat election, the writ will lie after they once have canvassed the returns, to prevent a recanvass and thus change the result first ascertained, on the ground that the latter act would be an unauthorized assumption of judicial power.^ It was stated by the New York court of appeals, upon review of English authorities, that those cases proved that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the sub- ordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction; from which it follows that the mere fact of jurisdiction of the subject-matter and of the per- son is not conclusive against the right to issue the writ.* Sec. 448. When the granting of the tv rit is discretionary. The writ is in some cases a matter of right, and in others dis- cretionary. "Where it appears that the court whose action is sought to be prohibited had clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition as a matter of right. But Avhere there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made mat- ter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary.' Note.— It is quite doubtful whether the state courts will be willing to adopt the latter declaration of the high court which made it. It is oer- 1 Thomson v. Ti-acy et al., 60 N. Y. 3 State ex rel. Ellis v. Elkin (Mo.), 31; Hudson v. Judge of Superior 30 S. W. E. 333. Court, 42 Mich. 239. * Quimbo Appo v. People, 20 N. Y. 2 State ex rel. MoCurdy v. Slaver 531. the effect that a change of venue may be had, where aa action is brought in the wrong county, upon compliance with certain conditions, prohibition will issue to restrain the pro- ceedings of the court which refuses to order the change after the proper demand has been made and the other requisite con- ditions have been complied with.' So it will lie to restrain proceedings in an action to recover real estate brought in the wrong county where such provisions do not exist.^ Sec. 477. New trial, granting of — Interest of judge. — The writ will lie to prevent the granting of a new trial after expiration of the trial term,' and to restrain a justice of the peace from granting a new trial after the lapse of thirty days from the rendition of the judgment. (In this particular state, it seems, a justice has such power within thirty days.) * Also in I:^ew York to restrain the court of oyer and terminer from granting a new trial upon the merits after a conviction for felony. The principal question of such right was elaborately discussed, and the conclusion reached that the courts had no such power.^ The writ lies to a judge of a subordinate court to prevent him from hearing a cause where he has a personal interest in the subject-matter, though the court over which he presides has jurisdiction of the cause.* Sec. 478. Suggestion first made in court helow.— The su- preme court of the United States, in stating the rule respect- ing the issue of the writ, included as one of the essential ele- ments that the party must have made objection at the outset, in the court where the proceedings were pending, of the want of jurisdiction.'' The rule has been stated that, before a writ of prohibition will be granted to a court, it must have deter- mined adversely to the petitioner on a motion or suggestion 1 State V. Superior Court, 5 Washi * Burroughs v. Taylor (Va.), 17 S. E. St 518. Rep. 745. 2 Granger's Bank v. Superior Court ^ Appo v. People, 20 N. T. 531. (Cal.), 33 Pac. Rep. 1095. 6 North Bloomfield G. M. Co. v. 3 State V. Walls (Mo.), 20 S. W. Rep. Keyser, 58 CaL 315. 883. ' 'In re Rice, 155 U. S. 396. 694: SPECIAL EEMEDIES. [§§ 4T9, 480. founded on the ground of a want of jurisdiction in the court.' Such was the rule at common law. A plea was necessary, and a refusal to entertain the plea.^ Hence, where an injunction has been ordered contrary to the express provisions of a statute, prohibition will not issue, unless a motion has been made to dissolve the injunction and refused.' Sec 479. Title to office. — Prohibition will not issue to test the title to an office. There is, in cases where the right is dis- puted, an adequate remedy by quo warranto. If it appear that there is an office de facto to be filled, and the incumbent was ostensibly appointed or elected to fill such office, then he be- comes a de facto officer, whose proceedings will not be restrained, and this though it should be made to appear that the officer or body exercising the power of appointing actually did not pos- sess it.^ The California court, however, hold that the legality of a grand jury may be tested by writ of prohibition, on the ground that the court is without jurisdiction, where it proceeds to try one accused of crime upon indictment not found by a lawful jury, and that the remedy by appeal, where one is given, is not a speedy and adequate remedy; and involved in the ques- tion is the legality of the appointment of the person who sum- mons such jury, whether he is a proper officer or person duly selected or appointed under the law.' Sec. 480. Stage of proceedings when writ will issue. — The courts of England in several cases discussed the question whether the writ would lie after judgment and sentence, and it seems that the rule was established that, where the jurisdic- tional defect appeared upon the face of the proceedings, then the writ would issue in a proper case, even after judgment or sentence. "Where such jurisdictional defect was not thus ap- 1 State V. District Court, 39 Pao. 3 Ex parte McMeechen, 13 Ark. 70. Eep. 749 (Wyo.); State v. Judge, 44 See also Ex parte City of Little La. Ann. 1083; Ex parte McMeechen, Eock, 26 Ark. 53. 18 Ark. 70; Ex parte Hamilton, 51 ^In re Radl, 86 Wis. 645; Hull v. Ala. 63; State y. Judge, 39 La. Ann. Superior Court, 63 Cal. 174; State ex 806; State v. Judge, 43 Mich. 239; rel. v. McMartin, 43Minn. 30; Epper- Southern Pacific R. Co. v. Superior son v. Eice (Ala.), 15 S. Eep. 434 Court, 59 Cal. 471. 5 Bruner v. Superior Court, 93 CaL 2 Edmundson v. Walker, Carth. 166. 239. § 481.J PEOHIEITION WRIT OF. 695 parent on the face of the record, then the writ would not issue after judgment and sentence ; ^ and still made the distinction that, where the court possessed jurisdiction of the principal subject-matter, but not of collateral matters arising therein, if the aggrieved party proceeded to trial upon the merits with- out objection, he was too late in making application for the writ after judgment and sentence.^ I have not found in the decisions of the courts of this country any case where the dis- tinction above stated has been accepted or declared, but rather quite generally the rule seems to be that, where the act which is proposed to be restrained has been done, then the writ will not lie. The very nature of the writ, being " preventive and not remedial," would seem to indicate this.' Sec. 481. Writ ordinarily does not lie after proceedings are closed. — lean imagine no principle which would permit the use of the writ after the proceedings are closed. While its use may not be resorted to, to undo what has been done, there are cases where the same result has practically been secured. Thus, where a court has granted a new trial without having authority so to do, prohibition was issued to restrain further proceedings.* 1 assume that all proceedings based upon a juris- diction usurped, about to be taiien, may be restrained by prohibi- tion, though the effect may be that it suspends or virtually ignores the previous orders or decrees of the court ; but as to those pro- ceedings already had and which are closed, the writ cannot issue to review or directly set them aside. The issue of the writ being largely discretionary, the court will, upon application for it, take care that improper advantage is not taken, and will withhold it or grant it, as the circumstances may seem to de- mand. There can be in this country, with the liberal right of appeal and review granted by our laws, but little occasion for resort to the writ. It was held in Virginia that the writ would issue after judgment.' There can be no doubt but that it might 1 Smith V. Gibson, Cas. temp. 58 Cal. 177; Daniel v. Smith, 64 Cal. Hardw. 317; Keechv. Potts, 1 Keb. 8. 346; Hull v. Superior Court, 63 CaL 2Full V. Hutchins, Cowp. 433. 179. s State V. Judge, 44 La. Ann. 1093; * Burroughs v. Taylor (Va.), 17 S. K State V. Judge, 45 La. Ann. 313 : State Eep. 745. ex reL EUis v. Elkin (Mo.), 30 S. W. 5 French v. Noel, 33 Gratt 454 Eep. 333; Coker v. Superior Court, 696 SPECIAL EEMEDIES. [§ 481. thus issue to restrain other judicial proceedings based upon a void judgment, but not the ministerial acts of officers in the attempt to enforce it. The instances would be rare where the writ would lie for other reasons. First. The party would have an adequate remedy by appeal or writ of error, possibly in some cases by certioTo/ri. Second. If a civil action, the levy upon and sale of his personal property would create no title in the purchaser. He could sue for its value or maintain an action of replevin. If the judgment would cloud the title to his real prop- erty, he could bring an action to remove the cloud if the judg- ment was not void upon its face. If void upon its face it would ordinarily not create a cloud.^ It appears that the statements Ave have made are in accord with the doctrine announced by the supreme court of the United States. It was said : " If the thing be already done, it is manifest that the writ of prohibition cannot undo it, for that would require an affirmative act, and the only effect of a writ of prohibition is to suspend all action and to prevent any further proceeding in the prohibited direc- tion." Further they state: ""We have examined all the cases referred to by counsel which show that a prohibition may issue after sentence and judgment; but in all these cases something remained which the court or party to whom the writ was di- rected might do, and probably would have done, as the collec- tion of costs or otherwise enforcing the sentence." ^ 1 Woodward v. Superior Court, 95 * United States v. Hoffman, 4 Wall. Cal. 373; State ex reL Kellogg v. 158. Gary, 33 Wis. 93. CHAPTEK 26. QUO WARRANTO. Sec. 483. Nature and office of tlie writ. 483. Statutory proceedings quite gen- erally a new proceeding. 484. Such statutes merely change the form of procedure — The proceeding civil in its natura 485. Proceeding double in its pur- posa 486. Title to office — Writ only lies where one is in possession of an offica 487. Person declared elected entitled to possession pending contest. 488. Officers distinguished from agents. 489. Proceeding will not lie to pre- vent the doing of particular acts, 490. "Whether a vrrit of right or dis- cretionary. 491. Rule in courts of last resort. 493. Other remedies existing. 493. Special statutory remedy. 494 Where charter makes a munici- pal board judge of the elec- tion and qualification of its members. 495. Power of a legislature to con- trol the use of the remedy. 496. The remedy lies where there is not an office to be filled. 497. Equity has not jurisdiction. 498. Mandamus will not lie to re- move an incumbent. 499. Relator — Interest required. 500. Rule where purpose is to dis- solve a corporation. 501. Relator must have a direct in- 1 terest — Taxpayers. Sec. 503. Discretion of attorney-general — When subject to control. 508. General rule stated. 504. Application to the court — Leave of, how obtained. 505. Statutes — KfiEect upon the rule. 506. Practice under statutes. 507. Extent of the inquiry. 508. Certificate of election — When its prima facie character de- stroyed — Rule. 509. Matters relating to the conduct of the election. 510. Mattel's relating to tlie office. 511. Constitutionality of the act cre- ating an office — When sub- ject of inquiry. 512. Vacancy in office tested by pro- ceedings in quo warranto. 513. Oath of office — Failm-e to take — Effect — Matter relating to the person. 514. Eligibility. 515. Persons who have declared their intentions. 516. An alien holding office is a de facto officer. 517. Person holding another office — Rule. 518. Persons convicted of crime — Rule. 519. Bribery — Effect of. 530. Expiration of term — Effect of upon proceedings. 531. Trial by jury. 522. The judgment. 533. Imposition of fine. 534. Appeal— Effect o£ 698 SPECIAL EEMEDIES. [§ 482. Sec. 482. Nature and office of the writ.— The ancient writ of quo warranto was in the nature of a writ of right for the king against him who claimed or usurped any office, franchise or liberty, to inquire by what authority he supported his claim in order to determine the right. It also lay in case of non- user or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what war- rant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse.^ The ancient writ for causes stated by the learned author fell into disuse, and was succeeded by a different method of prosecution, by information filed in the court of the king's bench by the attor- ney-general in the nature of a writ of quo warranto. This was properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him or seize it for the crown, but was applied to the mere purpose of trying the civil right, seizing the franchise or oust- ing the wrongful possessor, the fine being nominal only. By virtue of statute 9 Ann., c. 20, the proceeding was applied to the decision of corporate disputes between party and party, without any intervention of the prerogative, upon an informa- tion in the nature of quo wwrramto, to be brought with leave of the court at the relation of any person against one usurp- ing or intruding into or unlawfully holding any franchise or pifice in any city, borough or town corporate. Such statute provided for its speedy determination, and directed that, if the defendant be convicted, judgment of ouster (as well as fine) be given against him, and that the relator should pay or receive costs according to the event of the suit.' It is unnecessary here to enter upon a historical review of the events which in- duced the changing of the writ to its present form. It is suf- ficient to state that it is still a quasi-cxmxm2\. proceeding ; and while it is mainly resorted to to determine civil rights, both public and private, yet its character and purpose of punishing a usurper is not destroyed, but remains as at common law. In fact it is beyond the power of legislatures to abolish the quasi- criminal jurisdiction vested in courts by the constitution with respect to the writ of quo wa/rranto, though it may be compe- J 3 Blackstone (Cooley's), 263. 2 3 Blackstone (Cooley's), 263. §§ 483, 484.] QUO waeeanto. 699 tent for it to give a quasi-ciYil proceeding in such cases.^ Hence it -will be found that in many of the states where the use of the writ has been regulated by statute, provision has been made for the imposition of a fine, in addition to the judgment of ouster, in the discretion of the court, and that cases have been before the courts where such discretion has been exercised in imposing such penalty.^ Sec. 483. Statutory proceeding quite generally a new pro- ceeding. — Some of the states have provided that a civil action in the nature of the writ of q^to warranto may be brought in the name of the state by a private person on his own complaint, when the attorney-general refuses to act, or where the office usurped pertains to a county, town, village or school district. Without such provisions, courts might perhaps in proper cases have authorized proceedings in the name of the attorney-gen- eral, if that officer wrongfully refused to act, and it was neces- sary to proceed in his name.' This branch of the section of the statute, however, gives a new proceeding by private par- ties in the name of the state, without use of the attorney-gen- eral's name or office, in cases of local office, and in all cases in which that officer may refuse to act. This proceeding is plainly in the nature of a civil action, although in the name of the state.* The conclusion was reached by Kyan, 0. J., that the statute distinguished between a criminal information by the at- torney-general and the quasi-civil remedy which it gives to a private person, and that such distinction was founded on the previous use of the proceeding by information, sometimes of a criminal and sometimes of a civil nature.' Sec. 484. Such statutes merely change the form of pro- cedure — The proceeding civil in its nature. — The same view is taken by the New York court. There the statute, similar to that of Wisconsin, abolished the writ of quo warranto, and pro- ceedings by information in the nature of quo warranto, and gave a remedy by action. It is held, however, that this stat- 1 State V. Baker, 38 Wis. 71. * State v. Baker, 38 Wis. 71. 2 State V. Baker, 33 Wis. 71. = State v. Baker, 38 Wis. 71. 8 Attorney-General v. Bai-stow, 4 Wis. 567. 700 SPECIAL KEMEDIES. [§ 484r. ute merely changes the form of procedure; that the position of the defendant and the rules of evidence and the presump- tions of law and fact are the same as in the proceeding by writ of information, for which the remedy by action was substi- tuted. The jurisdiction and power of the courts are not touched by that statute, nor the right to seek and reach through them all the remedy which that writ once afforded.^ The parties, however, stand in the same relation of equality to each other as in other civil actions, and the proceedings of the trial court are to be conducted, and decisions of that court reviewed, upon the principles applicable to civil actions, and not by those which prevail in criminal proceedings, when the latter differ from the former. Several other states have by statute abolished the writ and the information in the nature of a writ of quo warranto and substituted a remedy by civil action. Among these is Kansas.^ The question as to the effect of such legislation upon the remedy was before the supreme court of the United States, and that court improved the opportunity of stating briefly, not only the effect of such legislation, but also the character of the remedy generally as a civil proceeding. That court is author- ity for the statement that "long before our Kevolution the proceeding lost character as a criminal proceeding in every- thing except form, and was applied to the mere purposes of trying the civil right, seizing the franchise or ousting the wrong- ful possessor, the fine being nominal only, and such without any special legislation to that effect. Such has always been its character in many of the states of the Union. In some of the states, however, it has been treated as criminal in form, and matters of pleading and jurisdiction governed accordingly. Such is the rule in New York, Wisconsin, JSTew Jersey, Arkan- sas and Illinois, but in all these states it is used as a civil rem- edy." Note.— The court evidently overlooked the later cases in New York "This being the condition of the old law, it seems to us clear that the effect of legislation like that in Kansas, as to the mode of proceeding in quo warranto cases, is to relieve the old civil 1 People V. Thatcher, 55 N. Y. 538; 2 Ames v. Kansas, 111 U. S. 449. People V. Hall, 80 N. Y. 117. § 485.] QUO WAEEANTO. 701 remedy of the burden of the criminal form of proceeding with which it had become incumbered, and to restore it to its orig- inal position as a civil action for the enforcement of a civil right. The right and the remedy are thus brought into har- mony, and parties are not driven to the necessity of using the form of a criminal action to determine a civil right." ' Sec. 485. Proceeding double in its purpose. — The pro- ceeding, so to speak, may be double in its purpose : to deter- mine and vindicate public rights, and to enforce or protect the civil rights of individuals; to oust one who has usurped an ojEce ; to give to the one of lawful right its possession. At common law whenever a subject undertook to exercise a pub- lic ofBice or franchise, he was called upon by the crown, through the writ of quo warrcmto, and compelled to show his title, and, if he failed to do so, judgment passed against him. The peo- ple here are the ultimate source of the right to hold a public oifice, and now, as heretofore, when the right of a person ex- ercising an office is challenged in a direct proceeding by the attorney-general, the defendant must establish his title or judg- ment will be rendered against him. A failure on his part to prove a legal title to the office will not establish that of the relator, where the proceedings are brought on the relation of one claiming such title. Upon the issue of his title the plaintiff holds the affirmative, and the burden of proving it rests upon him. Judgment in the action may be rendered against the defendant without adjudging that the title to the office is in the relator.^ In many of the states the form of the remedy has not been changed by statute, though the proceeding is regarded as civil in character, rather than criminal, in other respects than the mere commencement by information, and with respect to that,its sufficiency is tested by the rule appli- 1 Ames Y. Kansas, 111 U. S. 449; man v. Otter (Ky.), 20 S. "W. E. 1036; Foster v. Kansas, 112 U. S. 205. See People v. Hartwell, 12 Mich. 508; Peo- also State v. McDaniel, 23 Ohio St. pie v. Volcano Canyon T. Co., 100 354; Central & Georgetown R Co. v. Cal. 87; Budd v. Holden, 28 Cal. 134; Taylor, 5 Colo. 40; Commercial Bank People v. Gillispie, 1 CaL 343. See, V. State, 4 S. & M. 439. however, Attorney-General v. May, 2 People V. Thatcher, 55 N. Y. 538; 99 Mich. 538, as to burden of proof. People V. Perley, 80 N. Y. 624; Tiel- 702 SPECIAL EEMEDIES. [§ 486. cable to civil complaints rather than criminal indictments or informations.! In Illinois, however, the proceeding is so far regarded as criminal that the rules of criminal pleading are applied to such informations.^ Sec. 486. Title to office — Writ only lies where one is in possession of an office. — One of the purposes of the writ being, as has been stated, to try or test the right or title to an office, and that inquiry being directed to the right of possession of it, it follows that the writ only lies where one is in possession of the office.' This of itself may be a subject of controversy ; and where there are different claimants, it is important to know upon which rests the burden of commencing proceedings to test the right. This condition usually occurs where one is in the actual posses- , sion of the office, either claiming to have been re-elected, or holding over, claiming that his successor has not been elected. The rule in such cases was stated by the Wisconsin court to be, "tl^at as against a person holding an office by virtue of an election for a term of office which has expired, the person so holding over is estopped from denying that his successor was duly elected, when such successor shows that he was declared elected by the proper board of canvassers. He cannot avoid the effect of the decision of the canvassers by simply holding on to the office and claiming that the decision of the canvassers was erroneous, or the electors who cast the votes were not legal electors, or that fraud was practiced, which, when investigated, would show a different result. If in such a case he was a can- didate for re-election, he must himself commence proceedings by quo warranto against the party claiming the office, for the purpose of having the judgment of the canvassers reversed; and he cannot hold on to the office upon his mere claim that the judgment of the canvassers was erroneous. If he was not a candidate for the office, his duty is to surrender the official papers, records and moneys to the person duly elected upon his having duly qualified. The law will not permit him, on the 1 state T. Hardie, 1 Ired. 42; State ^ Hay v. People, 59 111. 94; Donnelly Bank v. State, 1 Blackf. 267; Stete v. v. People, 11 la 552; Wight v. Peo- Ashley, 1 Ark. 279 : Lindsley v. Attor- pie, 15 III 417. ney-General, 33 iliss. 508; State v. » UpdegraflE v. Crans, 47 Pa. St. 103. Price, 50 Ala. 568. §§ 487, 488.] Qro waeeanto. 703 pretense of championing the losing party, to hold on to the oflRoe for his own benefit." ^ Seo. 487. Person declared elected entitled to possession pending contest.— The rule is well established that the person holding the ordinary credentials shall be qualified and allowed to act pending a contest and until a decision can be had on the merits.^ Seo. 488. Officers distinguished from agents^ etc. — In England the rule was stated that a quo warranto will lie for usurping any office, whether created by charter of the crown alone or by the crown with the consent of parliament, provided the office is of a public nature and a substantive office, and not merely the function or employment of a deputy or a servant held at the will or pleasure of others.' Intrusion into an office of a private corporation is not the subject of quo warrranto there, unless the corporation has public duties.* In this country the rule is otherwise, as we discuss later. So in this country the writ only lies to test the right to an office, as such, against one claimed to be usurping an office, as an officer, and will not lie where the place or position is not an office, and the person alleged to be the intruder is not one claiming the office as an officer, or is not an intruder into an office, as distinguished from one acting or assuming to act, or intruding into a posi- tion, as a mere agent, trustee, or in the employment of some private party. The inquiry extends to judicial, administrative and executive officers — officers that claim by appointment as well as those that claim by election by constituted public bod- ies or through the voice of the people.* 1 Supervisors of La Pointe V. O 'Mai- 5 Commonwealth v. Swasey, 133 ley, 46 Wis. 35. Mass. 588; United States v. Lock- 2McCrary on Elections, sec. 204; wood, 1 Pin. 359 (Wis.); State v. Commonwealth v. Baxter, 35 Pa. St. Messmore, 14 Wis. 116; State t. Von 363; People v. Miller, 16 Mich. 56; Baumbaoh,13 Wis. 310; State v. Bun- People V. Callahan, 83 111. 128; Peo- ner, 20 Wis. 63; State v.Dousman,28 pie V. Head, 35 111. 335; Crowell v. Wis. 541; State v. Eiordan, 24 Wis. Lambert, 10 Minn. 369; People v. 484; State v. Goldthwaite, 16 Wis. Stevens, 5 Hill, 616. 146 ; State v. Ely, 4 Wis. 420 ; State v. SDarley v. Reg., 12 C. & F. 520. Barstow, 4 Wis. 567; State v. Mc- 4 King V. Ogden, 10 B. & C. 230; Garry,21 Wis. 496; State v. Perkins, 18 Queen v. Mousley, 8 A. & E. (N. S.) 946. Wis. 411 ; State v. Brunst, 3 Wis. 787 ; ( 04 SPECIAL EEMEDIES. [§ 489. The cases last cited related to the following officers: Probate judge, circuit judge, city treasurer, clerk of county board, coroner, county supervisors, county superintendent, county treasurer, district attorney, governor, inspector of house of correction, member of board of health, justice of the peace, municipal judge, school director, sheriff, and state's prison com- missioner; the right to act as a pilot, the right to preside over meetings of a city council, school treasurer, chief of police, president of senate, drainage commissioner, clerk of vestry, and wardens and vestrymen. So it follows that the proceed- ings cannot be maintained against employees of a railroad company, either agents or those who are employed in the op- erating department ;i nor against the managers of a lottery appointed by a corporation;^ nor a minister of the gospel;' nor against trustees appointed under an act of the legislature to close up the affairs of a state bank. Such a trust has none of the indications of an office, — no tenure is prescribed, no fees or emoluments are allowed and no salary; nor is any oath required to be taken. It is a mere trusteeship, to take charge of the assets and wind up the affairs of the bank.* Nor can the pro- ceeding be maintained against a policeman.' Sec. 489. Proceeding will not lie to prevent the doing of particular acts. — The action or proceeding will not lie to pre- vent judicial or other officers whose right to the office is not contested from doing particular acts ; such, on the part of a ju- dicial officer, as trying a specified class of cases ; " or dn the part of other officers to determine which has the right to per- form certain duties.' Nor will the action or proceeding lie to State V. Brown, 1 Wis. 513; State v. Burrows, 1 Q.B. 399; Dunlap v. Stew- Palmer, 24 Wis. 63; Attorney-Gen- art, 6 Houst. (Del) 359. eral v. Foote, 11 Wis. 14; Palmer v. lEliason v. Coleman, 86 N. C. 225; Woodbuiy, 14 Cal. 43; State v. Gas- People v. Hills, 1 Lans. 203. tinal, 20 La. 114; State v. Bemondy, 2 Commonwealth v. Dearborn, 15 36 Me. 279; State v. Stumpf, 21 Wis. Mass. 125. 430 ; Werts v. Rogers (N. J. L.), 28 AtL 3 Commonwealth v. Murray, 11 S. «S; Rep. 726; People t. Ellis (Mich.), 49 R 78 (Pa.). N. W. Rep. 308; State v. Hall, 111 N. 4 People v. Ridgley, 31 HI. 66. 0. 369; Smith v. People, 39 IlL App. » People v. Cain, 84 Mich. 223. 238; State v, Tierney, 23 Wis. 430; « State v. Evans, 3 Ark. 585, 36 Am. State V. Minton, 49 Iowa, 591; State Dec. 468. V. Bulkeley, 61 Conn. 287; Reg. v. ' State v. Smith, 55 Tex. 447. §§ 490, 491.] ' QUO WAEEANTO. 705 determine the right or title of persons to an office which is not authorized.* Sec. 490. Whether a writ of right or discretionary. — It has been held in some jurisdictions that quo warram,to, like writs of mandamus and other prerogative writs, rested in the discre- tion of the court and were not of strict right.^ In such juris- dictions, however, where the proceedings are instituted by the attorney-general, and relate to a public right, the court does not question his act, whether there exist a discretion or not.^ Where, however, the statute has provided that the remedy is by civil action, and authorized the attorney-general to institute proceedings on his own motion, the court is without discretion ; and where the new remedy is given, in effect permitting a per- son to bring an action upon his own relation in the name of the state, then I apprehend that the proceeding is of the same character as that in other civil actions, and the party proceeds as a matter of right. Sec. 491. Rule in courts of last resort. — Courts of last re- sort, however, exercise a discretion in granting leave to institute proceedings in that court, where there is authority in subordi- nate courts to entertain such proceedings. The circumstances under which such courts will assume original jurisdiction were stated by Kyan, C. J., as follows: "To warrant the assertion of origina,l jurisdiction here the interests of the state should be primary and proximate, not indirect or remote, peculiar per- haps to" some divisions of the state, but affecting the state at large in some of its prerogatives, raising a contingency requir- ing the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character, the court judging of the contingency in each case for itself. For all else," though raising questions puhlici juris, ordinary remedies and ordinary jurisdictions are adequate. And only where for some 1 State V. Worth. 43 Conn. 79. » State v. Gleason, 13 Fla. 190; Reg. 2 State V. Fisher, 38 Vt. 714; People v. Clarke, 7 W. & R. 601; Common- V. Waite, 70 111. 85; People v. Kuling, wealth v. America Bank, 10 Phil. 156: 4 Colo. 139; Commonwealth v. Cluley, State v. Hardie, 1 Ired. 43 (N. C). 56 Pa. St. 370; State v. Brown, 5 E. I. 1. 45 . 706 SPECIAL EEMEDIES. [§ 492. peculiar cause these are inadequate will the original jurisdic- tion of this court be exercised for the protection of merely- private or local rights. Proceedings to restrain municipal un- dertakings or municipal taxation in ordinary cases belong ap- proximately to the original jurisdiction of the circuit and not of this court. These are questions ^wiZ^ci juris, as are title to local public office, performance of local official duty, use of local highways, maintenance of local public buildings, abuse of local power or franchise, and kindred local matters. But these are not generally questions involving the sovereign prerogative or the interest of the state at large so as to call for the prerogative jurisdiction of this court.^ The court, however, for reasons that were peculiar to the case, did thereafter assume jurisdic- tion of proceedings to determine the right to a local office.^ Sec. 492. Other remedies existing, — It has been said that quo warranto proceedings would not lie where there was an- other adequate remedy, and also that such a proceeding is the proper one where the right to a public office or franchise is the question to be determined, and that the power to entertain such proceedings and their distinctive character are beyond the power of legislative destruction. In some of the states statutes have been enacted providing a method of procedure in cases of contested elections, and it is often urged that such statutory method is conclusive and precludes proceedings by quo vxirranto. "Where the power of the court is discretionary, it follows that in the exercise of that discretion the court could refuse to allow the writ or to proceed upon an information filed in the nature of a writ of quo warranto, and would do so where the ordinary common-law remedies were plain and ade- quate, or where special statutory proceedings afford not only an ample and adequate remedy, but one more speedy in deter- mining the question. Such were the grounds of decision in Peo])le V. Hillsdale and Chatham Turnpike Co., 2 Johns. 190, and Lord v. Avery, 38 Mich. 405. In the former the court refused to grant an information in the nature of quo war- ranto against the defendant on the relation of a private party, 1 Attorcey-General v. Eau Claire, 2 state v. Baker, 38 Wis. 71, 37 Wis. 400. §§ 493, 494.J QUO waeeanto. 70Y where the complaint was that such defendant had opened a road through his land without making him compensation, and stated they would leave him to pursue his common-law remedy against it as a trespasser; that the public were in no way concerned in the controversy, and that was a sufficient reason for not granting this extraordinary remedy. In the latter case the question was the legality of a school district. The court denied the application on the ground that there was a special statute authorizing proceedings to determine that ques- tion, which was adequate and better adapted to reach a speedy determination of the question than the proceeding applied for. Sec 493. Special statutory remedy. — State v. Ma/rlow, 15 Ohio St. 114, is often cited as an authority directly sustaining the proposition first stated. The doctrine of that case is merely to the effect that, a specific mode of contesting elections hav- ing been provided by statute according to the requirements of the constitution, that mode alone could be resorted to in ex- clusion of the common-law mode of inquiry by proceeding in quo warranto. That, the constitution providing for two meth- ods, the court would construe both provisions, and arrived at the result stated. Sec. 494. Where charter makes a municipal board judge of the qualification and election of its members. — In New York it was held that the provisions of the charter of a city making the board of aldermen the judge of the election, returns and qualification of its own members, subject, however, to any court of competent jurisdiction, did not oust the courts of juris- diction or prevent them from originating an inquiry as to the right to that office. The provision simply creates a cumulative jurisdiction, by the exercise of which the board is, for the time, constituted a legal body and its acts are made authoritative, leaving to courts of competent jurisdiction the right to inquire, in behalf of the people, into the right of any person who by action of the board holds a place in it. The authorities which are claimed to hold an opposite view are commented upon and distinguished, the court reaching the conclusion that upon the general proposition, independent of constitutional or strict statutory provisions, there is substantially no conflict. This 70S SPECIAL EEMEDIES. [§§ 495, 496. court also expresses doubt as to the power of the legislature to restrict the substance of proceedings in quo warranto, or to di- vest courts of the power in respect thereto which is vested in them by the constitution.^ Sec. 495. Power of the legislature to control the use of the remedy. — The Wisconsin court, as we have seen, is an au- thority against any such power in the legislature.^ The doc- trine asserted by the New York court seems to be that ex- pressed in earlier cases.' In ISTebraska it was held that a stat- ute creating a mode of contesting elections did not affect the jurisdiction in qtoo warranto existing under the constitution ; * while the courts of Kansas and Colorado are in accord with the courts of "Wisconsin upon the proposition that legislatures have no power to divest the courts of that jurisdiction.* In Illinois it is held that the provisions of the election law, permitting electors to contest elections, does not operate to deprive the courts of jurisdiction, by proceedings in quo tuarranto, to de- termine the right or title of an incumbent to an elective office." So in Florida the jurisdiction of the courts is not impaired by the fact that the common council have authority to inquire into the legality of the election of a mayor of a city organized under general laws.' Sec. 496. The remedy lies where there is not an ofiftce to be filled. — Nor is such jurisdiction taken away in Ohio by rea- son of the provisions of the statute, in terms declaring'that the council of a municipal corporation is the exclusive judge of the election of its own members, and the court may inquire by pro- ceedings in quo warranto as to the right of one to hold the office of a member of such a body, who assumes such right from a ward that has no legal existence, or under an election not held 1 People V. Hall, 80 N. Y. 117. * Kane v. People, 4 Neb. 509. 2 People V. Baker, 38 Wis. 71; At- 6 state v. Allen, 5 Kan. 313; People torney-General v. Messmore, 14 "Wis. v. Boughton, 5 Colo. 487. 115. See also State V. Board of State » Snowball v. People, 147 111. 200: Canvassers, 36 Wis. 498. Patterson v. People, 65 ILL App. 651. ^ People V. Bristol & Renssellaer- ' BucJiman v. State, 15 S. Rep. 697 ville T. Co,, 38 Wend. 329; People v. (Fla.). Hillsdale & Chatham T. Co., 23 Wend. 354. § 497.] QUO WAEEANTO. 709 under authority of the law.^ But under the requirements of the constitution the jurisdiction of such a body is exclusive upon the question of the election of its own members.^ How- ever, where there is no such office as that which the claimant assumes to fill, or there is no authority for his election thereto, the attempt to exercise its functions is a mere usurpation. It presents a different question from that which arises in a mere election contest, and quo warranto is the only proper proceed- ing.' Such was the reasoning of the supreme court of Penn- sj'lvania in a case where the question was whether the ward was entitled to one or two representatives. It was said the supreme court cannot inquire whether the election was regu- larly conducted, for that duty belongs to the branch of the council in which the seat is claimed, but they can decide the question whether there was an office or vacancy to be filled.* The Alabama ' courts also hold, under the provisions of the code (section 3177), which defines procedure in quo warranto for usurpation of office or franchise, and specially enacts that the validity of no election which may be contested under this code can be tried under that chapter, that where the code makes provision for election contests, proceedings in quo warranto can- not be resorted to.^ To the same effect is a recent decision by an English court, which rules that under an act which de- clares that an election shall not be questioned on any certain specified grounds, except by an election petition, q^w warranto will not lie where such grounds are relied upon." In Mon- tana such a statute is merely a concurrent remedy.'' Sec. 497. Equity has not jurisdiction. — The doctrine is that a court of equity has not jurisdiction to try the title to a public office, and cannot be resorted to to enjoin one from usurping an office.* Thus, a bill was filed by a number of persons who 1 State V. O'Brien, 47 Ohio St. 464. Commonwealth v. Fowler, 10 Mass. 2 State V. Berry, 47 Ohio St. 232. 290. s State V. O'Brien, 47 Ohio St. 464. sperks v. State (Ala.), 18 S. Rep. * Commonwealth v. Meser, 44 Pa. 756. St. 341; People v. Eiordan, 41 N. Y. SReg. v. Morton, 1 Q. B. 39. 483. See also Attorney-General v. ^ State v. Fransham, 48 Pao. Rep. 1. Holihan, 29 Mich. 116; People v.Gart- See also State v. Equitable L. & B. land, 43 N. W. Rep. 687; Common- Assoc. (Mo.), 41 S. W. Rep. 916. wealth V. Allen et al., 70 Pa. St. 465; 8 Hinckley v. Breen, 55 Conn. 119; 710 SPECIAL EEMEDIES. [§ 497. claimed to have been duly elected trustees of a German Catho- lic cemetery association, claiming the fact of their election, and that the officers of the association refused to declare them elected, but on the contrary, combining with the old board of trustees and with defendants, declared elected the defendants as trustees; that the officers and old trustees refused to deliver the books and property of the association, and have usurped and continue to usurp, contrary to law, the offices of the asso- ciation and to control its property and affairs. Other matters were set forth relative particularly to the creed of that church, and that, contrary to the constitution and by-laws of the as- sociation, and in violation thereof, they had admitted to bur- ial in the association grounds those who died out of com- munion of the Catholic church. The prayer of the biU was that the defendants be restrained from the exercise of the office of trustees, for an accounting and delivery of the books and papers, and also that the trust created be required to be faith- fully executed by preserving the burial ground for the exclu- sive purpose of the burial of Germans who are Catholics, and that the surplus means of the company be appropriated to charitable and pious uses ; that the bodies of persons not Catho- lics be removed. The restraining part of the prayer for re- lief was limited to the time when quo warranto proceedings which were pending could be heard. The court determined that the legality of the election of the complainants as trust- ees could not be judicially tested by bill in chancery, but only by proceedings by quo wa/rranto. That the objects of the trust were such as a court of equity would uphold, upon the application of any member of the association, where there has been an abuse or perversion of such trust. But the proof in the case did not show such a violation or abuse of the trust created as to justify the interference of a court of equity .^ Statements made by some text-writers to the effect that, where equity may afford the proper relief, quo wa/rranto will not lie, are misleading. The case of People v. Whitcomb, 55 111. 172, has been cited as authority in support of such posi- HuUman v. Howcomp, 5 Ohio St. inuUman y. Howcomp et al, 5 338; Updegrafle v. Crans, 47 Pa. St. Ohio St. 338. 103. § 4:97.] QUO "WAEEANTO. 711 tion. It will be seen, however, that such a proposition was not involved in the case. Thus it was said that such " a writ is employed to try the right a person claims to an ofHce and not to test the legality of his acts. If an officer threatens to exercise power not conferred upon the office, or exercise the powers of his office in a territory or jurisdiction within which he is not authorized to act, persons feeling themselves aggrieved may usually restrain the act by injunction. The case of At- torney-General V. Board of /Supervisors, 11 Mich. 63, was a bill filed to restrain the county authorities from unlawfully re- moving a county seat, and an injunction was granted. But that case does not hold that the act could have been prevented by an information in the nature of quo warranto. The case of People V. Maynard, 15 Mich. 463, was such an information, but it questioned the right of the officer to act as treasurer in a county. He claimed that by the formation of a new county, the residence of the original treasurer of the original county being embraced in the new county, the office had become va- cant, and that he was appointed treasurer to fill the vacancy. . . . In this case there seems to be no question that defend- ants in error are legally and properly officers of the city, and there can be as little doubt that they may perform all the functions of their offices within the city limits, whatever they may be. If they attempt to pass and enforce ordinances be- yond the bounds of the city, or to levy and collect taxes be- yond the city limits, such acts would be unauthorized, and might, no doubt, be restrained on a bill properly framed for that purpose. But whether a law which purports to attach this territory to the original corporate limits is or is not con- stitutional cannot be determined in such a proceeding as this. If the corporate authorities shall attempt to enforce their ordi- nances against persons in the territory thus annexed, they may raise the question of the validity of the law on their defense ; or if they shall levy and attempt to collect taxes on the lands embraced in the portion used for agricultural purposes, the tax- payer may, no doubt, file a bill to restrain their collection, and thus present the question whether the law is valid and binding." ' See Dart v. Houston, 33 Ga. 506; Stultz v. State, 65 Ihd. 493. 713 SPECIAL EEMEDIES. ['§§ 498, 499. Sec. 498. Mandamus will not lie to remove an incumbent. Nor can mandamus be resorted to to remove an incumbent, qvA) warranto being the exclusive remedy where the right or title to a public office is the question for determination.^ Sec. 499. Relator — Interest required. — With respect to the interest in the subject-matter of the controversy which must be shown and possessed on the part of the relator to au- thorize the proceeding, the decisions of the courts are not uni- form, and the question is to a great extent controlled by stat- utes in the respective states. Therefore it is impossible to lay down any rule that will be general in its application. Such statutes generally provide that the attorney-general may file an information in his own behalf, or may exhibit the relation of a person having an interest, or leave to file the information may be granted on the relation of such a person in the name of the state, where the attorney-general refuses to act, and in some states without reference to the act of the attorney-general, and in some of the states, where the proceedings relate to a local public office, and the proceedings are by civil action, neither leave of the court or of the attorney-general is required to enable the relator, in the name of the state, to bring the action. The attorney-general may file the information as relator; and where the usurpation of an office is the subject of the controversy, an information may be exhibited on the relation of any person claiming the right thereto.^ Whether a person not so directly interested, but indirectly interested as a taxpayer or a member of the board of officers, if the right to the office is in contro- versy, is one of that character and may be a competent relator, is a question courts have answered differently. Under the Louisiana statute it is held that the relator must show a muni- ment of title in himself,' and that in the proceeding under that statute the person claiming the office is plaintiff, and the in- 1 People V. Matterson, 17 111. 167; 2 Commonwealth v. Swank, 77 Pa. St. Louis Court v. Sparks, 10 Mo. 117; 154; Attorney-General v. Barstow, 4 Duane v. McDonald, 41 Conn. 517; "Wis. 567; People v. Ryder, 12 N. Y. State V. Camden, 42 N. J. L. 335; Reg. 433. T. Rioketts, 3 N. & P. 151 ; Rex v. Ox- 3 State v. Wittenberger, 33 La. Ann. ford, 1 N. & P. 474 See title Man- 263. damns. §§ 500, 501.J Qiro wAEEANTo. 713' oumbent defendant ; ^ while in Arkansas it is held that the state must move, where the controversy relates to the right to a public office.^ In Pennsylvania it is held that members of a school board as such may maintain quo warranto to test the right of a person to act as a member of the board, and the right of other members of the board to act as officers thereof.* Where it is the duty of the attorney-general to file an infor- mation on the relation of one claiming the right to a public office, and such an information is filed but afterwards dis- missed as to the state, the relator may still prosecute the pro- ceeding in his own behalf.* Sec. 500. Rule where purpose is to dissolve a corporation. The rule seems to be different where the proceeding is against a corporation to dissolve it. In such cases, the whole purpose of the proceeding being public, the relator is not a party to the proceeding, and cannot control it.^ Seo. 501. Relator must have a direct interest — Taxpay- ers. — Even under a statute which gives the remedy to any person or persons desiring to prosecute the same, a private relator cannot proceed where the right involved is purely pub- lic, and does not in any manner especially concern him.'' In Louisiana and Kansas a private relator cannot contest or in- quire into the right of persons exercising municipal offices by quo warranto proceedings on the ground that he is a taxpayer ; ^ while in New Jersey it appears that a taxpayer is a competent relator in proceedings against persons or officers usurping the functions of a board of assessment and revision of city taxes.* And in Georgia, the fact that one is a taxpayer makes him a competent relator where the proceeding is to test the legal right of one assuming to be an alderman ; ' and the same in iGuillotte V. Ponicy, 41 La. Ann. * Common\Cealth v. Cluley, 56 Pa. 333. St. 370. 2 Ramsay v. Carhart, 27 Ark. 13; 7 Voisin v. Leche, 33 La. Ann. 25; State V. McDiarmid, 37 Ark. 176. Miller v. Palermo, 13 Kan. 14. See 3 Commonwealth v. Fletcher et al., People v. Grand Bridge Co., 18 Colo. 36 Atl. Rep. 917. ' 11. ■•Attorney-General v. Barstow, 4 a state v. Hammer, 43 N. J. L. 435. Wis. 587. ' Davis v. City Council (Ga.), 17 S. s State V. Douglass County Road E. Rep. 110. Co., 10 Oreg. 198. 714 SPECIAL EEMEDIES. [§ 502. Isovth Carolina, where the statute provides that quo warranto may be brought by the attorney-general upon the complaint of any private party.^ In Colorado the action may be brought by a defeated candidate in the name of the state, though he may not be entitled to the office.^ The supreme court of Mich- igan, having this question under consideration, declare the rule in that state to be that a citizen, taxpayer and elector of the county has the right to set the machinery of the law in motion and to compel the prosecuting attorney or the attorney-general, upon a proper and jjrimafaeie showing, to file an information in the nature of a quo warranto to test the right of the incumbent to hold the office (of sheriff). The attorney-general ought not to institute quo warranto proceedings upon the relation of a citizen having no claim of title to the office, unless the show- ing is such as to afford reasonable grounds for the belief that the incumbent of the office is an intruder therein, or one not competent under the constitution to hold it.' Sec. 502. Discretion of attorney-general — When subject to control. — The supreme court of Ohio, speaking with refer- ence to this question, stated : " It is not contended that the law has made it the duty of the attorney-general to commence an action in quo warranto to test the constitutionality of a statute when requested by any person who may have, or claims to have, an interest in the question. He may in a proper case, upon his own relation, bring such action, or he may hping it on leave of the court or a judge in vacation, on the relation of another person. The application when made by another is addressed to his own discretion, the exercise of which the court cannot control. If he refuses it must be presumed that his re- fusal is based upon sufficient cause. Nor do we deem it proper in a case like this to direct the attorney-general to bring the action (the statute 'gives the court, governor and general as- sembly such authority). But we think the power of the court under this section should, as a general rule, be exercised only when something relating to the court or its business renders it 1 State T. Hall, 111 N. C. 367. See, however, People v. Fairchild, 67 '- Londoner v. People, 15 Colo. 557. N. Y. 334 3 Lamoreaux v. ElUs, 89 Mich. 146. § 503.] QUO WAEEANTO. 715 necessary and advisable." ^ The same court also holds that by reason of the Ohio statute which provides that a person claiming to be entitled to a public office unlawfully held and exercised by another may by himself, or an attorney at law, bring an action therefor, "that no other private relator can bring such action. The right is limited to such person." ^ The supreme court of Nebraska, construing the statute of that state, held that where the state at large is interested in a pro- ceeding in quo warrcmto, the attorney-general is, at common law, the proper person to institute it ; but when the informa- tion is filed by an individual to oust an incumbent from an office and install the relator therein, it is a personal remedy on behalf of the individual claiming to be aggrieved, and the state is but a nominal party. Where the attorney-general re- fuses to file an information, the statute permits the relator, upon obtaining leave of the court, to prosecute such proceed- ings in his own behalf in the name of the state.^ A private citizen has been held a competent relator in proceedings against one assuming to act as mayor,* tax collector,^ member of council,'' and street inspector;^ and it has been held that a member of a board of public officers is a competent relator in proceedings to test the right or title of another member of the same board.* Sec. 503. General rule stated. — From an examination of the adjudged cases I find the rule to be that, where the controversy relates to a matter purely public, then the proceedings, though on relation of a private relator, are public and in behalf of the state or the people, and wholly within the control of the state through its proper representative, and the information must be filed by such representative, unless he refuses, when the court may allow it to be exhibited by a private relator, in its discre- tion. When it relates to a public office it may be exhibited by 1 Thompson v, Watson, 48 Ohio St. ^ Commonwealth v. Philadelphia 553. City Surveyor, 1 Serg. & E. 382; Com- ^ State v. Taylor, 50 Ohio St. 120. mon wealth v. Keilly, 4 Phil. 329. 3 State V. Stein, 13 Neb. 529. See ^ Commonwealth v. Meser, 44 Pa. Boyd T. Thayer, 143 U. S. 135. ■ St. 341 ; Chicago v. People, 80 111. 490. * Commonwealth v. Jones, 12 Pa. ' State v. Martin, 46 Conn. 479. St. 365. 8Dickerson v. People, 17 111. 197. 716 SPECIAL EEMEDIES. [§ 504. the attorney-general on the relation of an interested party. That part oi' the proceeding which relates to an inquiry as to the right of the incumbent is so far public that it is within the control of the person representing the interest of the state. That part which relates to the right of the contestant in con- nection with that of the alleged usurper may be prosecuted by such contestant as relator and as a party. After the proceed- ings are inaugurated the state cannot control them to the extent of impairing the rights of the claimant, nor can the claimant so control them as to impair the rights of the state. Sec. 504. Application to the court — Leave of, how ob- tained. — At common law application was first made to the court for leave to file an information, and this may be the re- quirement in some of the states, though in others it is not nec- essary that leave should be obtained where the attorney-general files the information on his own motion and as relator.^ Where the granting of the writ is discretionary, as in many states, it would seem to follow that application must be made to the court. Where the statute in terms permits a private relator to bring an action in the name of the state, but in his own behalf, then the formality of application to the court is superseded by force of the statute. Where the statute does not prescribe the rule of proceeding, the forms of proceeding are as at common law.^ Therefore the application must be supported by affidavits stating facts which must be sufiicient, prima facie at least, to show the usurpation of the office and the right of the relator to the office where that is one of the purposes of the proceed- ing.' In some jurisdictions this is followed by an order to show cause, on the return of which the respondent may file counter affidavits, and if it then appear that the respondent's title is not clear beyond dispute, the rule is made absolute and the in- formation is filed.* In others the practice appears to be that 1 State V. Equitable Loan & Invest- ^ People v. Sweeting, 2 John. 184 ment Co. (Mo.), 41 S. W. Eep. 916; * United States v. Lockwood, 1 Pin. State V. Berkeley (Mo.), 41 S. W. Rep. 359 (Wis.); Commonwealth v. Jones, 932; Commonwealth v. Allen, 128 13Pa. St. 365; In re Mount Pleasant Mass. 308. Bank, 5 Ohio, 349; State v. Gummer- 2 State V. Bryoe, 7 Ohio, 417, pt. 3, sail, 34 N. J. L. 539. p. 82; State v. MoDaniel, 32 Ohio St. 354 §§ 505, 506.] QUO WAEEANTO. 117 the hearing may be had upon the giving of notice, without the order to show cause.^ The rule in Vermont and Illinois is that the court can only acquire jurisdiction, in the absence of a vol- untary appearance, by service of a writ under seal of the court; that a mere notice of application to the court is not sufficient.- Sec. 506. Statutes— Effect of, upon tlie rule. — It will be found, however, that the effect of statutes which in substance at least make these proceedings civil in character, has to a great extent removed the technicalities of form and proceeding in such cases that formerly attended them, and the same is true with respect to averments in the information and other plead- ings. Some courts, as we have seen, still cling tenaciously to old matters of form in either respect, but in the greater number of jurisdictions the requirement has been relaxed, though it may be said that more strictness is required than in ordinary civil actions.^ The defendant in such proceedings may set up such defenses as he may have, though there may be more than one.* The ordinary method is either to disclaim or justify.^ Sec. 506. Practice under statutes. — The practice under a statute which abrogates the old common-laAv writ and proceed- ings by information in the nature of qito warranto, and provides that the remedies theretofore obtainable in those forms may be obtained by civil action, was held to be, that the action is com- menced by a summons directed to the defendant subsciibed \>x the attorney-general. The complaint is the same as in other civil actions with respect to form. It must state the facts, and not conclusions merely, constituting the usurpations or cause of action, as the nature of the case does not admit of a counter- claim. The only pleadings are the complaint and answer ; no i State V. Burnett, 2 Ala. l-iO. See 15 Mich. 354; People v. Clark, 4 Murphy v. Farmers' Bank, 30 Pa. St. Co wen, 95; Ex parte Davis, 41 Ma 3S: 415; Gilroy v. Commonwealth, 105 State v. Sherman, 43 Mo. 210; State Pa, St. 484. V. Peelle, 131 Ind. 495; East Dallas t. -'Hambleton v. People, 44 111. 458; State, 73 Tex. 371; State v. MoDaniel, People V. Waite, 70 111. 259; State v. 23 Ohio St. 354. Smith, 48 Vt 14. * State t. McDaniel, 22 Ohio St. 354. 8 People V. Kingston, etc. Turnpike 'Larke v. Crawford, 28 Mich. 88; •Co., 28 Wend. 193; People v. Miller, State v. Foote, 11 Wis. 14. 718 SPECIAL EEMEDIES. [§§ 507, 508. replication is necessary.^ Where a statute permits a private relator for a local office to bring an action in behalf of himself but in the name of the state, the summons may be signed by his attorney. Sec. 507. Extent of the inquiry. — When the right of a per- son exercising an office is challenged in a direct proceeding by the attorney-general, the defendant, as we have stated, must establish his title, or judgment will be rendered against him. He is required to prove that he was elected or appointed to fill the particular office. The possession of the office is no evi- dence of his right. He must affirmatively show that his pos- session is a legal and rightful one. His failure in this respect does not establish the title of the relator; that is an affirmative proposition which the relator must establish in any event before he can have judgment in favor of his right. The certificate of election, however, is prima facie evidence of the right of the incumbent, and that fact appearing, then the state or the re- lator must impeach the certificate and show that such an in- cumbent did not in fact receive the requisite number of votes to entitle him thereto, the principle being that it is not the re- turn, but the result of the election (if it be an elective office), which is the foundation of the right to the office. Therefore it is competent in such an action to go behind the ballot-box and purge the return by proof that votes were received and counted which were cast by persons not qualified to vote ; ^ but the election is not to be set aside and declared void merely because certain illegal votes were received which do not change the result.' Sec. 508. Certificate of election — When its prima facie character destroyed — Rule. — When, however, it is shown that the certificate does not state the truth as to the result of the election, its character as prima facie evidence and the pre- sumption that attaches thereto is destroyed, and then the in- cumbent relying upon such certificate must establish his right 1 state V. Messmore, 14 Wis. 116. v. Commissioners, 35 Kan. 647; Peo- 2 People V. Thatcher, 55 N. Y. 535; pie v. Tuthill, 31 N. Y. 550; State v. Prince v. Skillen, 71 Me. 371. Norton, 46 Wis. 383; Judkins v. Hill, 3 Prince v. Skillen, 71 Me. 371 ; State 50 N. a 140. § 509.] QUO WAEEANTO. 71& to the office Dy other evidence in order to prevent a judgment of ouster agrainst him; and if the evidence shows that the re- spondent did not receive the number of votes declared in the certificate, and it shows that the relator received more than were credited to him, which was sufficient to change the result, this is sufficient to destroy the truthfulness of the certificate and call upon the respondent to show by other evidence that he. received a plurality of the legal votes cast. That the evi- dence may justify a jury in finding that a large number of the votes cast for the relator were illegal votes does not affect the result. "Whether they are legal or illegal votes, the fact would remain that they voted for the relator, and that fact would as effectually impeach the truthfulness of the canvass as though they had been all legal voters. The certificate being impeached, the respondent can no longer rest a right upon it, and he must then show by other evidence that he received a plurality of the legal votes cast at such election.^ A judgment that the relator is entitled to the office under such condition of the evidence as first stated could not be sustained, as it must be shown that he received a plurality of the legal votes.^ Seo. 509. Matters relating to the conduct of the election. — Mere irregularities in the conduct of an election do not in- validate it or impeach the presumptive force of the certificate. To have any such effect it must appear that, by reason of such irregular methods, legal votes were not received or counted, or that illegal votes were received. Hence, if the election is held by officers not legally appointed as such, or if the inspectors omitted to take the oath of office, or failed to appoint clerks as directed by statute, or if the polls are closed before the hour prescribed by law when they should be closed, these and kin- dred defects or omissions will not of themselves be sufficient to declare that tiie election is invalid. It must appear further, to authorize such a judgment, that by reason of those omissions or acts legal voters were prevented from casting their bal- lots, or that illegal votes were cast which affected the result of the election or at least cast a reasonable doubt upon such 1 State ex reL Swenson v. Norton, 2 game case. 46 Wis. 333. Y20 SPECIAL REMEDIES. [§ 510. result.! Where, however, by reason of the misconduct of the persons so conducting an election, or their fraudulent acts, it appears that the certificate of election or canvass of the votes is false, then it is, as we have seen, that such certificate or can- vass ceases to be of any force as evidence of the result, and the person who relies upon such evidence as proof of his right must establish such right by other competent evidence; and this would perhaps include a showing that the actual result was not affected by such fraud or misconduct.^ Irregularity merely should not be confounded with failure to observe mandatory requirements of the law respecting matters of substance. A person may be a legal voter, yet his vote may be cast under such conditions as to render it an illegal vote. He is only entitled to exercise the riglit of suiJrage in the precinct of his residence, and if he should cast his vote in another it would be an illegal vote. To guard against possible fraud the legislature may provide for a system of registration of voters, and, where such provision has been made, a failure on the part of the proper authorities to provide for such registration will render all votes oast at a precinct where no registry was made illegal, in the absence of proper affidavits which the law requires in the case of an unregistered elector.^ Sec. 510. Matters relating to the office. — The authority to hold a valid election must be conferred by the people, either directly through the constitution which they have themselves ordained, or indirectly through the enactments of their legal representatives, the legislature. The inquiry, therefore, is prop- erly directed to determine whether there is legally any such office which the respondent assumes to fiU.^ Hence it was held that quo warranto could be maintained against a per- son who assumes the exercise of the office of member of the council of a city from a ward which had no -legal existence,^ 1 People V. Cook, 8 N. Y. 67; People the constitutionality of registration T. Wilson, 63 N. Y. 186. laws. 2 People V. Wilson, 63 N. Y. 186; * State v. O'Brien, 47 Ohio St. 4Ci; State ex reL Swenson v. Norton, 46 Commonwealth v. Meser, 44 Pa. St. Wis. 332. 341; People v. Draper, 15 N. Y. 532. 3 State V. Stumpf. 23 Wis. 630. See s state v. O'Brien, 47 Ohio St. 464. Dells V. Kennedy, 49 Wis. 155, as to § 511.J QUO WAEEANTO. 721 and also against a person claiming to be such a member from a ward -which was represented by a member, the ward not being entitled to two;i the inquiry in the first case being di- rected to the legality of the organization of the ward, and in the latter to the fact whether it contained the requisite number of taxable population to entitle it to increased representation, as well as the mixed question of law and fact of the regularity of the proceedings provided, when such fact was found to exist to authorize an electioa of such a representative. The rule ap- plies to the same extent to the authority to make an appoint- ment to fill an oflB.ce as to hold an election for an office.^ Thus, where the legislature of a state passed an act which by its pro- visions was to take effect at a future date, and created a new county out of certain towns, and the governor of the state ap- pointed a person to the office of judge of probate of wills in such new county prior to the law taking effect, it was held that such appointment was void;' and where the legislature en- larged the boundaries of representative districts of a city, which was prohibited by the constitution, it was held that one exer- cising the office of alderman by virtue of an election from a ward thus sought to be added to the city was guilty of in- trusion, and judgment of ouster was entered against him.* In such proceedings against a county officer the legal existence of a county may be inquired into,' and in like proceedings against a town officer the legal existence of the town may be the subject of inquiry.^ But corporate existence which was irregular in its origin may often become regular by lapse of time and public acquiescence, and then it can no longer be dis- puted by any one.' Sec. 511. Constitutionality of the act creating an office — When subject of inquiry. — The inquiry may go to the ex- tent of determining the constitutionality of the act creating an 1 Commonwealth v. Meser, 44 Pa. 3 Commonwealth v. Fowler, 10 St. 341. Mass. 290. 2 State V. Marlowe, 15 Ohio St. 114; * People v. Holihan, 39 Mich. 116. State V. O'Brien, 47 Ohio St. 464; 6 People v. Maynard, 15 Mich. 463; Commonwealth v. Fowler, 10 Mass. People v. Supervisors, 41 Mich. 647. 290; Attorney-General V. Holihan, 39 "People v. Carpenter, 34 N. Y. 86; Mich. 116. People v. Supervisors, 41 Mich. 647. ' People V. Supervisors, 41 Mich. 647. 46 722 SPECIAL EEIIEDIES. [g§ 512, 513. office or public corporation, as well as to the validity of the proceedings by force of which the public corporation was as- sumed to be called into existence.^ And in proceedings against the judge of a court, the constitutionality of the act creating the court may also be the subject of inquiry.^ Sec. 512. Tacancy in office tested by proceedings in quo warranto. — Quo warranto is the proper proceeding to test the question of vacancy in office as well as the power or legality of appointment, and a relator who claims an office by reason of an election or appointment to fill a vacancy must show that the office had become vacant at the time of his election or ap- pointment. The inquiry thus necessarily must take a wide range. It reaches to the eligibility of one assuming the exer- cise of the office, the legality of his election or appointment, the power to declare a vacancy, as well as the existence of con- ditions upon which rest the exercise of such power. The ques- tion is sometimes presented where the duly elected or appointed officer has been held by the appointing or electing power not to have complied with the law in respect to taking the oath of office or in filing a proper bond, or where such bond has not been approved. In such cases a vacancy occurs only upon the neglect or refusal of the officer to conform to the re- quirements of the law. If he presents a proper and sufficient bond, the mere neglect or refusal of the officer or board with whom the duty of approval rests to approve the same in no manner affects the right or title of the officer to the office, and therefore cannot create a vacancy in the office;' nor would the mere failure to take the constitutional oath of office.* Seo. 513. Oath of office — Failure to take— Effect.— Where the law requires an officer elected or appointed to take the oath of office and file his bond within a limited time after his election or appointment, and also declares that the omission to do so shall make a vacancy in the office, it is held that the direc- 1 People V. Draper, 15 N. Y. 533; 3 state v. Dahl, 65 Wis. 510; Auditor People V. Carpenter, 24 N. Y. 86 ; Peo- v. ■Woodruff, 2 Pike, 73 (Ark.) ; People pie V. Supervisors, 41 Mich. 647. v. Fitch, 1 CaL 519; People v. Scan- - Frazer et aL v. Freelon, 53 Cal. nell, 7 CaL 432. 644. estate v.Findley, 10 Ohio, 51. §§ 514, 515.] QUO WAEEANTO. 723 tipns with regard to time are not applicable to a person to "vvhom the election, board refuses the certificate, but can only be applicable to a person declared elected by the board. There- fore, when the relator has been, refused the certificate by the board, he can maintain his action to oust the incumbent ; and after judgment in his favor can then take the oath of oflBce and give the bond required by law, and his failure to do so prior to that time does not create a vacancy in the office.^ The supreme court of Florida maintain that the relator must take the oath of olfice before commencement of proceedings, and the infor- mation must allege that fact.^ Sec. 514. Eligibility.— " All political power is inherent in the people, and those who are not of the people can have no share in it. The people are such as are born upon the soil, by whom and for whom in the first place the government was ordained, and such persons of foreign birth as may elect to as- sume the obligations of a citizen by complying with the laws of naturalization as enacted by congress. If they desire to se- cure political rights they must cease to be aliens and become citizens in the mode there prescribed. Until then they can neither vote nor hold ofiice; they can neither choose nor be chosen, for that is to exercise political power, and they are not of the people, who alone can exercise it. In the nature of things this must be so, and cannot be otherwise except by force of some positive law."' Sec. 515. Persons who have declared their intentions. — In many of the states, however, by force of constitutional pro- visions or statutes in accord with the constitution, the right to choose and be chosen to state and municipal offices is con- ferred upon aliens who have declared their intention to be- come citizens in conformity to acts of congress relating thereto.* In the absence of any constitutional or statutory provision on the subject, such ineligibility goes only to the holding of the office, and hence if an alien who is not an elector receives a 1 State V. Dahl, 68 Wis. 510; People bolt, 30 Cal. 186. See State v. Smith, V. May worm, 5 Mich. 146. 14 Wis. 497. estate V. Phillips, 30 Fla. 579. « State v. Fowler, 41 La. Ann. 380; 3 Sanderson, J., in Walther v. Ea- In re Conway, 17 Wis. 53& 724: SPECIAL EEMEDIES. [§ 515. plurality of votes for an ofiBLce, he may lawfully hold and ex- ercise the same, if by naturalization or declaration his disabil- ity is removed before the commencement of the term of office to which he has been elected.^ And it is held under the con- stitution of California that persons who are aliens may be elected or appointed to certain legislative offices. In other words, the fact that a person is an alien is no bar to his hold- ing an office created by the legislature, where a contrary in- tent is not apparent from the provisions of the law.^ It is held, however, that a person regularly appointed to a public office is presumed to be eligible thereto in the absence of con- trary proof.' Note to Sec. 515. — The distinction is made between rights of a citizen of a state conferred upon an alien and a citizen of a state or of the United States. It is true that a citizen of the state is ipso facto a citizen of the United States. Story's Comm. Constitution, sec. 1693; Slaughter House Cases, 16 Wall. 36; Dred Scott v. Sandford, 19 How. 393-576. But in Dred Scott V. Sandford, 19 How. 393-404, Mr. Chief Justice Taney, in delivering the opinion of the court, said: "The words -people of the United States ' and ' citizens ' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institu- tions, form the sovereignty, and who hold the power and conduct the gov- ernment through their representatives. They are what we familiarly call the ' sovereign people,' and every citizen is one of this people and a con- stituent member of this sovereignty. ... In discussing this question we must not confound the rights of citizenship which a state may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a state, that he must be a citizen of the \jnited States. He may have all the rights and privileges of the citizen of a state, and yet not be entitled to the rights and privileges of any other state. For, previous to the adoption of the constitution of tlie United States, every state had the undoubted right to confer on whomsoever it pleased the chai'acter of citizen, and to endow him with all its rights. But this character of course was confined to tlie boundaries of the state and gave him no rights or other privileges in other states beyond those secured to him by the laws of nations and the comity of states. Nor have the several states surren- dered the power of conferring these rights and privileges by adopting tlie constitution of the United States. Each state may still confer these upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is 1 State V. Murray, 28 Wis. 96; State 2 In re Bulger, 45 Oal. 553. V. Trumpf, 50 Wis. 103; State v. Kil- 3 State v. Eing, 39 Minn. 7a roy, 86 Ind. 118. § 516.] QUO WAEEANTO. 725 used in the constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen of the other states. The rights which he would acquire would be restricted to the state which gave them. The constitution has conferred on congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Con- sequently no state, since the adoption of the constitution, can by naturaliz- ing an alien invest him with the rights and privileges secured to a citizen of a state under the federal government, although so far as the state alone was concerned he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the constitution and laws of the state attached to that character." Sec. 516. An alien holding office is a de facto officer. — The official acts of an alien declared to be elected to an office are binding upon the municipality, on the ground that he is an officer de facto, and his right or title is not subject to collateral impeachment. The precise definition of an officer de facto, observes Bigelow, C. J. {Fitchburg B. Co. v. Grand Junction Depot Co., 1 Allen, 557), "is one who comes in by forms of law and acts under a commission or election apparently valid, but in consequence of some illegality, incapacity or want of qualification is incapable of holding the office.'" Note to Sec. 516. — An elaborate discussion of the provisions of the nat- uralization laws is found in Boyd v. Thayer, 143 U. S. 135, being particularly devoted to the status of children of aliens- who have merely declared their intention, and the effect of subsequent acts of voting, holding office, etc. The facts were as follows: Boyd was born in Ireland in 1834, of Irish par- ents. His father emigrated to the United States in 1844 with all his family, and settled in Ohio, in which state he has since resided continuously. In 1849 his father duly declared his intention to become a citizen of the United States, but there is no record or other written evidence that he ever com- pleted his naturalization by taking out his naturalization certificate after the expiration of the five years. For many years after the expiration of that time, however, he exercised rights and claimed privileges in Ohio which could only be claimed and exercised by citizens of the United States and of the state. The son on obtaining majority voted in Ohio, under the belief that his father had become a citizen. In 1856 he moved to Nebraska, in which state he resided continuously until the commencement of this action. He voted there at all elections, held various offices there which required him to take an oath to support the constitution of the United States, served in the army during the war, was a member of a convention to frame a state constitution, was mayor of Omalia, and, after thirty years of unquestioned exercise of such rights and privileges, was elected governor 1 Opinion of Judges, 70 Me. 560. 7726 SPECIAL EEMEDIES. [§ 516. of the state of Nebraska, receiving a greater number of votes than any other person voted for. He took the oath of office and entered upon the dis- charge of his duties. His predecessor, as relator, filed an information in the supreme court of Nebraska, in which were set forth the facts as to the declaration of intention by Boyd's father, and it was further averred that the father did not become a citizen during the son's minority, nor until the October term of the court of common pleas in Muskingum county, Ohio, in the year 1890, when the son was flfty-six years of age; and it was claimed that Boyd, the son, never having himself been naturalized, was not at the time of his election a citizen of the United States, and was not, under the consti- tution and laws of Nebraska, eligible to the office of governor of that state, and the relator therefore prayed judgment that Boyd be ousted from that office, and that the relator be declared entitled to it until a successor could be elected. To this information the respondent in his answer, after stating that his father on March 5, 1849, when the respondent was about fourteen years of age, made before a court of the state of Ohio his declarations of intention to become a citizen of the United States, and averring that his father for forty-two years last past has enjoyed and exercised all of the rights, immunities and privileges and discharged all the duties of a citizen of the United States and of the state of Ohio, and was in all respects and to all intents and purposes a citizen of the United States and of the state of Ohio, and particularly alleging his qualification to be a citizen and acting as such for forty years, voting and holding office in that state, further dis- tinctly alleged on information and belief that prior to October, 1854, his father did in fact complete his naturalization in strict accordance with the act of congi-ess, known as the naturalization laws, so as to admit and con- stitute him a full citizen of the United States thereunder, he having exer- cised the rights of citizenship herein described, and at said time informed respondent that such was the fact. To this answer the relator interposed a demurrer, and on these pleadings the court below entered a judgment of ouster against Boyd, to which judgment a writ of error was sued out from the supreme court of the United States. The following questions were decided: 1. That as the defense relied on arose under an act of congress and pre- sented a question of federal law, the supreme court of the United States had jurisdiction to review it. 2. That the fact that the respondent's father became a citizen of the United States was well pleaded and was admitted by the demurrer. 3. That upon this record Boyd had been, for two years next preceding his election to the office of governor, a citizen of the United States and of the state of Nebraska. 4. That, where no record of naturalization can be produced, evidence that a person having the requisite qualifications to become a citizen did in fact and for a long time vote and hold office and exercise rights belonging to citizens, is sufficient to warrant a jury in inferring that he has been duly naturalized as a citizen. It was further held by Fuller, C. J., and Blatchford, Lamar and Brewer, J J. : 5. That the supreme court of the state having denied to Boyd a right or §§ 517, 518.] QUO WAEEANTO. 727 privilege existing under tlie constitution of the United States, the supreme court Oi the United States had jurisdiction on that ground also to review the judgment of the supreme court of Nebraska. 6. That even if the father did not complete his naturalization before the son attained majority, the son did not lose the inchoate status which he had acquired through his father's declaration of intention to become a citi- zen, and that he occupied in Nebraska the same position which his father could have occupied had he emigrated to that state. 7. That within the intent and meaning of the acts of congress he was made a citizen of the United States and of the state of Nebraska under the or- ganic and enabling acts of congress and the act admitting the state into the Union. 8. That congress has the power to effect a collective naturalization in the admission of a state into the Union, and did so in the case of Nebraska. 9. That the admission of a state on an equal footing with the organized states involves the adoption, as citizens of the United States, of those whom congress makes members of the political community, and who are recog- nized as such in the formation of the new state with the assent of congress. 10. That the rule prescribed by section 4 of the act of April 14, 1802 (3 Stat. 155, ch. 28), was to be a uniform rule, and there was no reason for limiting such a rule to the children of those who had been already nat- uralized, but on the contrary the intention was that the act of 1803 should have a prospective operation. Sec. 517. Person holding another office — Rule.— The con- stitution or laws of most of the states contain provisions ex- cluding persons holding one office from eligibility to another office. These provisions are not uniform in the respective states, and reference in all cases should be made to these pro- visions and to the decisions of the respective state courts to as- certain their construction. In some of the states it is provided by the constitution that no member of the legislature shall, during the terra for which he is elected, be elected or appointed to any civil office in the state which shall have been created, or where the emoluments thereof shall have been increased, during the term for which he was elected. It was held that such provision did not operate so as to exclude a member of the legislature from holding an office which was created, or the emoluments of which were increased, during his legislative term, but after his election or appointment to such civil office.' Seo. 518. Persons convicted of crime — Rule.— In perhaps most of the states persons who have committed crimes are dis- 1 State V. Boyd, 31 Wis. 208. 728 SPECIAL EEMEDIES. [§§ 519, 520. qualified from holding office. The law in some of the states goes to the extent that the mere commission of the crime so disqualifies, and the facts in reference thereto are open to in- quiry.' In Pennsylvania such issue must, if demanded, be tried by a jury .2 In most of the states the fact of guilt must have been judicially determined before disqualification attaches. There must have been a conviction for crime.' In Illinois it appears that the oificer charged with crime may be suspended until the fact is judicially determined.* Sec. 519. Bribery — Eifect of. — "Whether one who has re- sorted to bribery to influence the result of an election thereby becomes disqualified for the office is a question of some doubt. The English statute (5 & 6 Edw. YI, ch. 16) disqualified one guilty of such an act. In this country, where the person has been convicted of the offense, that of course would disqualify him. The Colorado court holds that under the provisions of their constitution the use of corrupt means to obtain the office does not disqualify.^ In other states such conduct only goes to the extent of rejecting the votes that were influenced by such con- duct.* Yotes cast for a candidate for any public office in con- sideration of his promise, in case of his election, to donate a sum of money or other valuable thing to a third party, whether such party be an individual, private or public corporation, are illegal votes, and will be rejected by the court when called upon judi- cially to declare the result of the election.' This doctrine was applied in a case where a candidate for county judge circulated and published a promise that, if elected, he would perform the duties for a sum less than the salary prescribed for such services.* Sec. 520. Expiration of term — Eifect of on proceedings. It frequently happens that the term of the office the right to iRoyall V. Thomas, 28 Gratt. (Va) 6 People v. Goddard, 8 Colo. 433. 130; Commonwealth v. Walter, 83 ^ State v. Humphreys, 74 Tex. 466; Pa. St. 105. State v. Purdy, 36 Wis. 213; State v. 2 Commonwealth v. Walter, 83 Pa. OUn, 23 Wis. 309. St. 105. 7 state v. Purdy, 36 Wis. 313; State 8 Commonwealth v. Jones, 10 Bush v. Humphreys, 74 Tex. 466. (Ky.), 735; Barker v. People, 3 Cow. 8 state v. Purdy, 36 Wis. 313. See 668; State v. Humphreys, 74 Tex. 406. Alvord v. Collin, 20 Pick. 428. i Cowley V. People, 95 IlL 349. § 520.] QUO WAEEANTO 729 which is the subject of controversy expires before the proceed- ings are concluded and the right determined, and the question then presented is whether the proceedings must fail or proceed to judgment, though the respondent is not in the office and therefore cannot, strictly speaking, be ousted therefrom. The courts quite generally hold that Avhere the proceedings have been commenced during the term of office for which the rela- tor claims to have been elected, the proceedings will not be dismissed, though such term expires prior to judgment in the proceedings. Ordinarily the object of the proceedings is more than to oust the incumbent. In most jurisdictions a fine may, in the discretion of the court, be imposed, and costs may be recovered against the respondent, should he be found guilty ; and when the office is claimed by another, the right of such person to the office is also involved, who, if judgment is in his favor, may use it as the foundation for recovery of damages caused by the usurpation.^ There are cases (notably People v. Sweeting, 2 Johns. 18, and Commonwealth v. Athearn, 3 Mass. 285) where leave to file an information was refused on the ground that the term of the office would expire before the question could be determined. This ruling proceeded upon the ground that the term of office was only one year, not an important office, and that the discretion of the court would be best exercised in refusing the writ. In another case the New York court refused to dismiss the proceedings, although the term of office had expired.^ There are decisions by the su- preme court of Iowa to the effect that proceedings will be dis- missed where the term of office has expired before judgment. These cases, however, were of that character where the rights of third parties were not involved, or Avhere there were no emoluments attached to the office, and the only result of pro- ceeding to judgment would be to determine the question of payment of costs. The court, in one of the cases, remarked that " the court ought not to be required to spend its time in the accumulation of a bill of costs, for no other purpose than that of determining which party should pay." ' The fact that 1 People V. Hartwell, 13 Mich. 508; 2 People v. Loomis, 8 Wend. 396. People V. Eodgers (Cal.), 46 Pac. Kep. ' State v. Porter, 58 Iowa, 19; State 740; Hunter v. Chandler, 45 Mo. 453; v. Minton, 49 Iowa, 59; State v. Pow- Common wealth v. Smith, 45 Pa. St. 59. ell (Iowa), 70 N. W. Rep. 593. 730 SPECIAL EEilEDIES. [§§ 521, 522. the office has, since the commencement of the proceedings, been abolished, will not have the effect to cause them to be dis- missed, for the same reasons which have been stated with re- spect to expiration of the term of office.' Sec. 521. Trial by jury. — The issues involved in quo war- ranto proceedings are to be tried before a jury, whether com- menced in the supreme court under its jurisdiction or in a subordinate court. The supreme court may impanel a jury or send the issue to the subordinate court, there to be heard before a jury, the order directing that the evidence and proceedings be returned to the superior court for final determination.* Sec 522. The judgment. — The rights of three parties ordi- narily are involved in the proceedings, viz : those of the relator, the respondent, and the public. Hence the court may render judgment of ouster only against the respondent, or it may in addition thereto render judgment in favor of the relator that he is entitled to the office.' So if the respondent received the highest number of votes, but is ineligible on account of being an alien or for other causes, judgment of ouster may be against him, but judgment for the relator declaring his right thereto cannot be given, though it appear that he received the next highest number of votes.* If it appear that a sufficient number of legal votes were rejected to change the result, such votes cannot be counted in favor of the relator as to his right to the office, but, the fact appearing, may be sufficient to oust the in- cumbent.' And where the statute under which both parties claim is invalid, judgment of ouster will be rendered against the respondent.^ Upon a judgment of amotion from office the party is divested of all official authority and excluded from office so long as the judgment remains in force, and if in favor of the relator he needs no writ to invest him with the office.' 1 People V. Bodgers (Cal.), 46 Pao. * State v. Smith, 14 Wis. 497. Eep; 740. 6 State v. McDaniel, 22 Ohio St. 354 2 People V. Doerburg, 16 Mioh. 133; « State v. Dousman, 28 Wis. 541. State V. Messmore, 14 Wis. 116. 'People v. Stephenson, 98 Mich. estate V. Barstow, 4 Wis. 567; Peo- 218; Fawcett v. Sxn^erior Court, 15 pie V. Hall, 80 N. Y. 117; State v. Nor- Wash. 843. ton, 46 Wis. 332. §§ 523, 52i,] QUO WAEEANTO. 731 A judgment of ouster executes- itself. Possession of the books and papers may be given in the mode prescribed by statute. A writ of assistance is not necessary to place the relator in pos- session of the office.^ Sec. 523. Imposition of fine. — "Whether a fine shall be im- posed is a matter of discretion.^ Some states provide by stat- ute for the imposition of a fine ; other states hold that the power is vested in the court ; and still others that the proceed- ing has become civil in character, by which the power to im- pose a fine has been eliminated. Sec. 524 Appeal — Effect of, upon staying execution of the judgment. — It is quite generally held that, upon appeal from a judgment of ouster, the execution of the judgment will not be stayed; that the right to exercise the functions of the office by the respondent is annulled by the judgment, and the one declared entitled thereto must perform them. The prac- tical result of suspending the judgment dm'ing the pending of the appeal in many cases would be to deprive the relator of his remedy.^ 1 People V. Conover, 6 Abb. Pr. 320. Wash. 376; State v. Knight (Wis.), 50 See Mandamus. N. W. Rep. 1013; People v. Living- 2 State Y. Baker, 38 Wis. 71; State ston, 80 N. Y. 66; People v. Conover, V. Brown, 5 R. L 1. 6 Abb. Pr. 330; Welch v. Cook, 7 3 People V. Stephenson, 98 Mich. How. Pr. 333. 318; State v. Superior Court, 15 CHAPTEE 27. QUO WARRANTO — Continued. Sec. L Municipal Corporations. 535. Writ addressed to municipal corporations. 526. Writ ordinarily addressed to officers to test the legal ex- istence of the corporation, 527. Subject continued. 528. Municipal corporations not dis- solved. 539. Proceedings of public corpo- rations not interrupted, re- viewed or amended. 530. The relation ordinarily that of the attorney-general. 531. Where proceeding is against acting officers, persons di- rectly interested may become relators. 533. Proceedings will lie where lands are not adjacent to village settlements or not contiguous. IL Private Corporations. 533. Corporate officers — Intrusion into or unlawful occupancy. 534. Statutory remedies — Their ef- fect. 535. Remedy in equity. 536. Parties — Relation. 537. Corporate franchises — Pri- vate — Who may attack. 538. Modes of dissolving corpora- tions enumerated and dis- cussed. 539. Proceedings ordinarily, where offense is against the public, must be prosecuted by the attorney-general. 540. Corporate franchises — Defini- tion. Sec. 541. Abuse of franchises — Usurp- ing a franchise — Quo war- ranto. 542. Non-user of franchise — Same remedy. 543. Forfeiture only declared for wilful abuse or neglect. 544 Mere technical violations not sufficient to work a forfeit- ure. 545. Acts and omissions held to have been sufficient to au- thorize the proceedings. 545a. Monopoly — Use of franchise to create. 5456. Subject continued. 546. Effect of abuse of a particular franchise upon the corpora- tion. 547. Distinction between misuse of a franchise and acts ultra vires. 548. Distinction illustrated. 549. Discretion exercised lif declar- ing forfeiture. 550. Non-user, to justify a forfeit- ure, must be total — Proceed- ings must be brought by the attorney-general 551. Insolvency and suspension of operations. 553. Statutory remedies in such cases. 553. Usurpation — What may con- stitute. 554. Existence of de facto corpora- tion — Not subject to collat- eral attack. 555. Whether proceeding should be against the corporation or of- ficers. §§ 525, 526.] QUO waeeanto. 733 Sec. 556. Extent of the inquiry. 557. Proceedings to oust from the exclusive right to exercise a franchise. Sko. the remedy to include abuse of powers. 559. Other remedy existing — Ef- fect of. 558. EfEect of statutes extending 560. Estoppel — When applicable. I. Municipal Coepoeations. Sec. 525. Writ addressed to municipal corporation. — The use of quo warranto proceedings in England to dissolve munici- pal corporations and to declare forfeited their charter and franchise was frequent. In this country their use for such pur- pose is quite rare. It may be said that the remedy only pre- vails in a particular class of cases. "It is only the sovereign power of the state," says Judge Eedfield, " which can create corporate franchises, and all who presume to exercise them without the consent of such authority are liable to this mode of procedure." ' It is not so much in this country a question whether the proceedings can be maintained as what acts con- stitute such usurpation of franchises as will invoke this rem- , edy. The use of the proceeding is generally confined to testing the question whether such corporations have a legal existence, rather than to declare the forfeiture of a franchise or charter, legally existing, on account of abuse of their privileges. Yet it would seem that with respect to the former the proceeding is not always brought against the corporation directly as such, but the question is usually tested and determined by a pro- ceeding against officers acting under claim of office therein.^ Sec. 526. Writ ordinarily addressed to officers to test the legal existence of the corporation. — It was stated by the su- preme court of Michigan that quo warranto would not lie against a township to determine its legal existence where the invalidity of its organization appeared on the face of the record, but that the proper remedy was hj certiorari. The reason given was, that there could be no such proceeding against the town, because that would admit it to be a corpo- 1 State V. Village of Bradford, 83 Vt. 50. 2 People V. Holihan, 39 Mich. 116; People V. Maynard, 15 Mich. 468; Peo- ple V. Supervisors, 41 Mich. 647; Peo- ple V. Carpenter, 34 N. Y. 86; State V, O'Brien, 47 Ohio St. 464. 73i SPECIAL EEMEDIES. [§ 527. ration. It was further stated that q^uo warranto proceeding Tvould lie against those assuming to act as officers of such town, and the legal existence of the town thus inquired into for the purpose of determining their right; but that in such proceeding the corporation was not a party, and therefore such a proceeding would not lead to any judgment directly reach- ing the whole controversy in one record, and might lead to un- necessary delay.i It is proper to suggest that the statements of the court were made in reference to the precise question whether certiorari was the proper remedy, or proceedings in quo warranto. The principal question was before the court of appeals of New York. There it was made a question on the argument whether proceedings in quo vxirranto against one acting as supervisor was the proper remedy to bring up for de- cision the question of the legal existence of the town. To the argument that, if there was in fact no town, there could be no office, and consequently no usurpation, it was said the objec- tion was too technical; that the object of the statute was to provide a speedy and effective mode of determining claims to exercise the duties of office, and that necessarily involved the determination of the existence of the particular office. If it did not legally exist, there could be no usurpation ; and the same result would follow if it had a legal existence and the re- spondent was entitled to it. In either aspect the determina- tion of the legal existence of the office was involved and must necessarily be decided.^ Sec 52T. Subject continued. — The difficulties suggested by the Michigan court were not apparent to the supreme court of Vermont. There proceedings in quo vmrranto were commenced ' against a town and its officers to dissolve the town, on the ground that the corporation was not legally organized. It was not claimed or held that thereby the legality of its existence was recognized to the extent of preventing an inquiry as to that question.' The supreme court of ^N'ebraska, however, is in accord with the Michigan court upon the proposition that 1 People V. Supervisors, 41 Mioli. 647. 3 state v. Village of Bradford et al., 2 People V. Carpenter, 34 N. Y. 86; 33 Vt. 50. People V. Draper, 15 N. Y. 533. See also State v. Parker, 35 Minn. 315. § 528.] QUO WAEEANTO. 735 to proceed directly against the town is to recognize its exist- ence as such, and therefore reach the conclusion that, to test its legal existence as such, the proper mode is to institute the proceedings against the acting officers.^ The supreme court of Minnesota, on the other hand, emphatically repudiate the objection urged, and state that " there is no sound reason for the rule suggested, that in proceeding against the de facto or unauthorized corporation by name the legal existence of the corporation is admitted. The question goes directly to the , right of the corporation to exercise the corporate franchise, and the state may proceed directly against it." ^ The Mich- igan court, subsequent to the decision in the cases cited, deter- mined that, after officers had been elected and expenses in- curred, the proper remedy to test the legal existence of the corporation was by proceedings in quo warranto against the town or its officers, and that certiorari would not lie.' We conclude, therefore, that the proceedings to test the legal ex- istence of a municipal corporation may be brought against the corporation itself by name, and its acting officers, in which a judgment may be had declaring the non-existence of the cor- poration. Sec. 528. Municipal corporations not dissolved. — ISTo case in this country has been found in which a municipal corpora- tion has been dissolved for an abuse of its franchise on the part of its officers. Municipal franchises and charters are given for the benefit of the citizens of the municipality and not for the benefit of the officers of such bodies, and if they abuse their trust or exceed their powers there are ample rem- edies provided for the correction of such abuses other than a deprivation of the charter rights of the corporation.'' Hence it has been held that the proceedings will not lie against a municipal corporation to enforce performance of a duty im- 1 State V. Uridel (Neb.), 55 N. W. Highlands, 50 N. J. L. 457; State v. Rep. 1073. See also State v. Flem- Tuttle, 53 Wis. 45. ing et aL (Mo.), 44 S. W. Rep. 758. ' Atlee v. Board of Supervisors, 94 estate V. Ti-acy, 48 Minn. 479, 51 Mich. 563, following School District N. W. Rep. 613. See also People v. v. School Inspectors, 37 Mich. 3. Clark, 70 N. Y. 518; People v. River- < Commonwealth v. Pittsburg, 14 side, 66 CaL 388; State v. Atlantic Pa. St. 177; Attorney-General v. Salem, 103 Mass. 138. 736 SPECIAL BEMEDIES. [§ 529. posed by la^v. "With respect to municipal corporations, such proceedings can only be made available to test the legality of their existence, as has been stated. It cannot be said, as is the xule with respect to other corporations, that where, having a legal existence, the corporation has by abuse forfeited its char- tered privileges, such a proceeding may be brought to enforce such forfeiture. The judgment may be that the franchise usurped or abused be forfeited to the commonwealth, if the commonwealth can enjoy it, or that there be ouster and fine. Such judgment in either form is clearly inapplicable where the purpose of the proceeding is to compel the performance of a duty which the respondent neglects or refuses to perform, or to restrain the improper use of a franchise or power clearly granted which does not work a forfeiture of the whole fran- chise. The rule may be different in the case of non-user or abandonment of the franchise.^ Sec. 529. Proceedings of public corporations not inter- rnpted, reviewed or amended. — Such a proceeding will not interrupt the proceedings of public corporations in the exercise •of their functions, though they may be acting erroneously or in excess of their actual powers; nor will it in such cases have the effect to review their action or to amend their proceedings or vacate and set aside their ordinances.^ The supreme court of Illinois, however, appear to have reached a contrary conclu- sion, holding that under the statute of that state autljorizing proceedings in quo warrcmto, where any corporation exercises powers not conferred by law, an information would lie against a board of education to correct its illegal action in excluding colored children from the public schools.' In Michigan it was sought to apply such proceedings to correct the action of a board of supervisors in selling a county poor farm, it being urged that the right to sell such property was a franchise. The court, how- ever, made the distinction that the act of the board in selling the property was the exercise of a franchise and not a usurpa- tion, and though their act in selling the same to members of 1 Attorney-General v. Salem, 103 433; State v. Cahaba, 30 Ala. 66; Mass. 138. See People v. Turnpike State v. Mayor, 10 Rich. 491 (S. C). Co., 23 Wend. 222. 3 People v. Board of Education, 101 estate V. City of Lyons, 31 Iowa, 111. 308. § 530.] QUO WAEEANTO. 737 the board might be void on the grounds of public policy, quo toarranto was not the proper remedy to right such action.^ The proceedings have been used in a jurisdiction other than that of Illinois to annul the exercise of corporate powers which were in excess of those conferred by law; the result being that the public corporation was not disturbed in its exercise as such, but restrained from the exercise of the particular power. Thus, it was held that an action in guo wa/rr(mto at the suit of the at- torney-general was proper to prevent a board of state regents of a university from the exercise of corporate powers which were in excess of those conferred.^ It is clear, however, that the proceedings cannot properly be used to correct corporate acts unless such remedy is authorized by statute. The object and use of such proceedings were very clearly stated by a learned court, in substance, that they will not in anj'^ case be entertained for the purpose of declaring void or annulling a legislative act, whether it be of the state or of an inferior municipal corpora- tion ; and that its proper sphere and office are not to annul what has been done, but to affirm or . adjudge as unauthorized the claim to the office, franchise or power in question, and, in case of adverse claimants, to award the office or franchise to the one having the legal right thereto.' Sec. 530. The relation ordinarily that of the attorney- general. — In many jurisdictions it is the doctrine that proceed- ings to test a public corporate franchise must be taken and .prosecuted by the attorney-general in behalf of the state. They cannot be sustained upon the relation of private persons only, and such is said to be the rule at common law. The reasoning is, that municipal as well as private corporations can only exist by authority of the state. They derive their franchises from the state, and it is therefore the peculiar province of the state to inquire into the misuser or usurpation of such -franchises. A private citizen, if he have a sufficient interest to support the ap- plication, may be allowed to contest the right of one intruding into an office ; but where the object is to test the right of a cor- 1 McDonald V. Supervisors, 91 Mich. 3 State v. City of Lyons, 31 Iowa, 459. 433. estate V. Eegents (Kan.), 40 Pao. Eep. 656. 47 738 SPECIAL EEMEDIES. [§ 531. poration to exercise the corporate franchise, a privilege derived from the sovereign power, the information must be filed by the attorney-general on behalf of the state. The proceeding is nec- essarily one of a public nature, and must be prosecuted by and in behalf of the public. In such cases it is not instituted for the redress of private grievances or the enforcement of private rights. The prosecution must in fact as well as in form be authorized and conducted by the public authorities; no mere formal consent will satify the requirements of the law in this respect.' In such jurisdictions the doctrine stated applies in all cases where the object of the proceedings is to determine the legal existence of the public corporation, whether the ac- tion or proceeding be brought against those assuming to act as ofiicers, or directly against the assumed corporation by name. Where, however, the object of the proceedings is to determine the right to an office in a legal corporation, this rule does . not apply in all cases.^ Sec. 531. Where proceedings are against acting officer,, persons directly interested may become relator. — In other jurisdictions where the proceedings are against the acting officer, and the purpose of the proceeding is to test the exist- ence of the public corporation, persons whose interests are directly affected may become relator, and the proceedings prose- cuted and conducted in the same manner as against persons, usurping an office which is. legally existing.^ Hence it has been held that a taxpayer has such an interest as will authorize him to set the machinery of the court into action.* But generally the interest of the relator must be such as is not shared by the public generally. The mere fact that he owns land which has been illegally appropriated is not sufficient, nor that his lands are remotely situated from the village settlement and there- 1 State V. Tracy et al, 48 Minn. 479, Co., 10 Oreg. 198; State v. Stein, IS 51 N. W. Rep. 613; People v. Railroad Neb. 529. Co., 88 111. 546. 3 state v. Tuttle, 53 Wis. 45; Lamor 2 Voisen v. Leohe, 23 La. Ann. 25: reaux v. Ellis, 89 Mich. 146; State v. Ramsay v. Cahart, 27 Ark. 12: Miller Hammer, 43 N. J. L. 435; Davis v. City V. Palermo, 12 Kan. 14; People v. of Dawson (Ga.), 17 S. E. Rep. 110. Grand River Bridge Co,, 13 Col. 11; ^Lamoreaux v. Ellis, 89 Mich. 146;. Gibbs V. Somers Point, 49 N. J. L. State v. Hammer, 43 N. J. L. 435. 515; State v. Douglas County Road See also State v. Tuttle, 53 Wis. 45. § 532.] QUO "WAEEANTO. 739 fore should not be included in the corporate limits. His inter- est in either case is not one in which the public is concerned; ^ yet it has been held that the owner of agricultural lands ille- gally included within the boundaries of a city or village in which he is not a voter may maintain proceedings in quo war- ranto to determine the validity of such inclusion.^ The Minne- sota court held, however, that the incorporation, if invalid, is so as respects all the lands included, and the court cannot modify or change the limits of an act of incorporation.' Note. — The statement of the facts in the Nebraska case is so incomplete as to leave in doubt the exact position of the court. There is no statement of the time when the city tlierein named was incorporated, nor whether under general laws or special act; nor whether the land referred to was the extent of the land included, other than such as was at the time of the in- corporation within the limits of the village. I infer from what is stated that it was the illegal act of including the lands referred to in the village incorporation that is the subject of complaint, and that the subsequent incorporation of such territory in a city made that corporation a nullity, as was contended. If the city merely extended its boundaries, then that ex- ercise of a franchise might be declared illegal without affecting the incor- poration proper on the ground of excess of power. If the whole territory was embraced in the original act of incorporation, I can see nothing that distinguishes the case from the one decided in Minnesota. Seo. 532. Proceedings will lie where lands are not adjacent to village settlements or contiguous. — That quo warranto will lie to dissolve or declare illegal and unauthorized an assumed municipal corporation on the ground that it has unlaAvfully in its acts of incorporation included lands not adjacent to village settlements or lands not contiguous has been several times de- cided. In some cases the proceedings have been conducted by public prosecutors in behalf of the state, directly against the corporation.^ In others so conducted, but on the relation of an affected person against officials.^ The principle that seems to be declared in these cases is that under laAvs Avhich provide 1 State etal. V.Tracy etal., 48 Minn. 'i State v. Minnetonka (Minn.), 59 479, 51 N. W. Rep. 613 : People v. Grand N. W. Rep. 973 ; Vestal v. Little Rock, River Bridge Co., 13 Colo. 11. 54 Ark. 321. estate V. Dimond (Neb.), 62 N. W. sghumway v. Bennett, 39 Midi. Rep. 498. 450 ; State v. Dimond (Neb.), 63 N. W. 3 State et al. v. Tracy et al., 48 Minn. Rep. 498. 479. 740 SPECIAL EEMEDIES. [§ 532. for the incorporation of cities and villages upon compliance with certain prescribed conditions, where other required con- ditions exist with respect to population and sometimes with respect to territory, only those lands which lie so near the center or nucleus of population as to be somewhat suburban in character and have some community of interest with such set- tled part, in the maintenance of village or city government, can properly be included in the corporate limits. That such laws do not, in the absence of express provisions, authorize the incor- poration of large tracts of rural territory having no natural connection with any village or city and no adaptability to vil- lage or city purposes. An information in the nature of quo wa/rranto is held to be the proper proceeding to try the ques- tion of the legality of the annexation of territory to a municipal or (^'wasJ-municipal corporation.^ The question as to the effect of such proceedings is not determined the same by all courts. The doctrine of the Minnesota court is that the part illegally' annexed and over which jurisdiction has been exercised is de facto a part of the municipality until determined otherwise, and that such determination only affects its status from that time;^ while elsewhere it has been held that, the proceedings being' void, the question may be raised collaterally and its ille- gality is determined as from the beginning; that quo warranto does not lie, but injunction is the proper remedy.^ The first- named court is not in harmony with those last above cited upon the question of collateral attack, applying the rule that th£ legal existence of a de facto corporation cannot be raised in a col- lateral proceeding. In Missouri, where it seems proceedings are taken before a court to determine certain questions, among others, whether the petition is signed by a majority of the tax- able inhabitants, it is held that the decision of the court is of the character of a judgment, and cannot be collaterally assailed, but that a proceeding in quo warranto by the state is a direct attack, and hence those questions are subject to review.* 1 state V. Board of Com'rs, 69 N. W. s People v. Whitcomb, 55 IIL 72; Rep. 925 (Minn.); State v. Fleming Stvdtz v. State, 65 Ind. 492. et al., 44 S. W. Rep. 758 (Mo.). ^ State v. Fleming et aL, 44 a W. 2 State V. Board of Com'rs, supra. Rep. 758 (Mo.). §§ 533, 534] QUO -waeeanto. lil II. Private Coepoeations. Seo. 533. Corporateofflcers — Intrusion — Unlawful occu- pancy.— Most of the states have enacted statutes with special reference to private corporations; hence it will be found that the scope of inquiry is much more varied and extensive in some states than in others, and in most all more extended than at common law. The general scope of such inquiry may prop- erly be classed under two heads or subdivisions, viz. : First, with respect to corporate officers and offices. Second, with respect to corporate franchises. Whatever may have been the rule in England, it is clear that in this country, under the common law, proceedings in quo warranto may be used to de- termine the right of an alleged intruder into an office of a private corporation, such corporation being created by the sov- ereign power.i The language of early statutes in this country relating to this remedy is that the remedy would lie against any person who shall usurp, intrude into or unlawfully hold any office or franchise within the state. It was held under such statutes, as well as under the statute 9 Ann., ch. 20, that the law applied to private corporations. It was declared that to be a corporation was a franchise, and that a corporate office is a franchise.^ Sec. 534. Statutory remedies — Their effect.— Later stat- utes are more comprehensive, and their language broader, and usually in express terms include any office in a corporation created by authority of the state. And were it not for stat- utes that also exist in many of the states, giving to courts ju- risdiction in equity or in other modes to determine the question of the right to offices in private corporations, there would be no question but that proceedings in quo warranto would be the proper remedy in all such cases, both at common law and under the statute. The greatest difficulty in treating this sub- ject is to determine whether such statutes supersede the use of proceedings in quo warranto, or whether the two remedies are "People V. Tibbetts, 4 Cowen, 358; State et al., 53 Ohio St. 63; Arming- Commonwealth V. Graham, 64 Pa. ton v. State, 95 Ind. 431. St. 339; Commonwealth v. Arrison, 2 people v. Tibbetts, 4 Cowen, 358. 15 Serg. & R 137; Crawford et al. v. H2 SPECIAL EEMEDIES. [§ 535. concurrent. No universal rule can be stated with respect to this proposition, for the simple reason that court of different jurisdictions are not in accord; some holding that the special mode provided by statute is exclusive of other remedies, while others hold the contrary. In New Jersey it was held that a court of chancery had no jurisdiction to determine the validity of the election of persons assuming to be directors of a private corporation; that the courts of law exercised jurisdiction by writ of qiM warranto or information in the nature of such a writ, and, if there was any doubt as to the application of such remedies, the difficulty was obviated and supplied by a sum- mary and efficient proceeding under a statute of that state en- acted for the very purpose.^ Sec. 535. Remedy in equity.— It was held, however, in that state that while a court of equity has no jurisdiction to remove an officer from an office of which he is in possession, or to de- clare such office forfeited, yet when, in a suit of which equity has jurisdiction, the question of the right to an office, or as to the regularity of an election, arises, and must be decided to obtain equitable relief, the court is competent to inquire into and de- cide these matters for the purposes of the suit. But its decis- ions will not, like that of a court of law upon quo warranto or mandamus, operate in rem and remove or oust any one from an office which in fact he holds.^ In California a statute pro- vides for the bringing of an action or proceeding in equity to inquire into the validity of a corporate election and to set the election aside if not made in conformity to law.' In ISTew York equity will not assume jurisdiction, there being an adequate summary remedy under the statute.* In Massachusetts it is held that suits to reniove or to institute corporation officers do not belong to the original jurisdiction of chancery, and that the right to be such officer cannot in general, and in the absence of special legislation affording this remedy, be tested by means of 1 Owen V. Whitaker, 20 N. J. Eq. 3 Wright v. Central CaL C. W. Co., 133. 67 Cal. 533. 2 Johnston et al. v. Jones et al., 33 * Miokles v. Rochester City Bank, N. J. Eq. 316; In re Steamboat Co., 11 Paige, 118. See, however, Soho- 44 N. J. L. 529. harie V. E. Co. Case, 13 Abb. Pr. (N. S.) 191 § 336.] QUO WAEEANTO. 743 injunction; but where the question is presented in an action in equity and is necessary to be determined for the purposes of the suit, the court may so determine it, but, in harmony with the New Jersey court, will go no further.^ "Where the stock- holders of a corporation had divided into two factions and had held separate meetings and elected directors and other officers, it was held that an injunction would not issue, at the suit of the directors elected by one faction, to restrain the directors and officers of the other faction from interfering with them in the business of the corporation; that an information in the nature of quo warranto was the proper remedy ; and the rule would not be otherwise if the bill was construed as a complaint against the defendants for wrongfully assuming to act as a cor- poration when they were not such in fact.^ The rule is applied in these and similar cases that the remedy by quo warranto is an adequate legal remedy, and hence a resort to equity is not permissible. It is also held that a suit in equity is in the nature of a collateral attack.' Note. — This state is exceptional in its doctrine as to what constitutes collateral attack. See Impeachment of Judgments — Collateral Attack. Seo. 536. Parties — Kelation. — "Where proceedings are au- thorized in equity or by statutory mode they are civil in character, and those having an interest injuriously affected may maintain the action. "Where the proceeding is instituted merely to oust those holding office, it may be required that the action be brought in behalf of those having a like interest. But in quo wa/rranto, unless a different rule is prescribed by statute, the proceeding is in the name of the state, and usually on information filed by the attorney-general, though on the relation of a proper interested party. In examining the stat- utes of some of the states which permit an action in quo war- ranto to be brought by one in his own behalf, but in the name of the state, I have found that the statute only applies to one iNew England Mut. Life Ins. Co. Hoguer v. Heyberger, 7 Watts & V. Phillips et al., 141 Mass. 53o. See Serg. 107; Owen v. Whittaker, 20 also Hughes v. Parker, 20 N. H. 58; N. J. Eq. 122; Kean r. Water Co., 53 Nathan v. Tompkins, 82 Ala. 437. N. J. Eq. 813. 2 Carmel Nat. Gas & Imp. Co. v. ^ North v. State, 107 Ind. 356. Small et aL, 47 N. E. Rep. 11 (Ind.); 744 SPECIAL EEMEDIES. [§ 537. claiming a local public office. Such are the statutes of Wiscon- sin and Ohio. In the latter state it was held that the relators could not, on their own motion and independent of the attor- ney-general or prosecuting attorney, maintain the action to test the right to hold the position of director of an agricultural society.! Tj^e intrusion into an office of a private corporation, while technically a matter of public concern, in fact is in most cases a mere matter affecting individual rights and interests ; and undoubtedly legislatures, recognizing such to be a fact, found it to be a sufficient reason for the enactment of statutes providing a remedy by means of private proceedings. Sec. 537. Corporate franchises — Private.— At common law, private individuals, without the intervention of the attor- ney-general, cannot, either as of right or by leave of court, file an information in the nature of a guo warranto? The abuse of a public franchise under color of a legislative grant is a public wrong as distinguished from a private grievance ; hence the remedy by quo wa/rranto must proceed from the attorney-gen- eral, or some authorized agent of the sovereign power, to dis- solve it. In cases involving merely the administration of corporate functions or duties which touch practically only in- dividual right, such as the election of officers, admission of a corporate officer or member, and the like, the writ may issue at the suit of the attorney-general or of any person desiring to prosecute the same, where such method has the sanction of statutory permission ; and where not, and such private person has an interest which is injuriously afifected, of such a character as will satisfy the proceedings, he may upon leave of the court, in the name of the state or attorney-general, prosecute such proceeding. The nature and extent of the right or interest thus affected that will justify such leave of the court will be illustrated in subsequent pages.^ Where the law authorizes a corporation, and there is an effort in good faith to organize a corporation under the law, and there- 1 Crawford et al. v. State et aL, 52 ' Murphy v. Farmers' Bank, 20 Pa. Ohio St. 63. St. 415; People v. North Chicago R. 2Goddard V. Smithett,3Gray, 116; Co., 88 111. 537; Kinney v. Gas Co., Eioe V. National Bank, 126 Mass. 300; 143 Mass. 417; State v. Turnpike Co., Kenney v. Gas Co., 143 Mass. 417. 1 Zab. (N. J.) 9. § 537.] QUO WAEEANTO. Y4:& upon, as a result of such effort, corporate functions are assumed and exercised, the organization becomes a corporation de facto, and as a general rule the legal existence of such a corporation cannot be inquired into collaterally, although some of the re- quired legal formalities may not have been complied ^Yith. Ordinarily, such an inquiry can only be made in a direct pro- ceeding brought in the name of the state. E"o private person, though claiming to be a stockholder, having dealings with a de facto corporation, can be permitted to say that it is not also a corporation de jure} Thus, the right of such a corporation ,to hold property cannot be questioned by an individual citizen in an action to set aside a contract which he had made with it in the corporate name and character.^ The regularity of the organization of public corporations, such as towns, cannot be questioned in collateral proceedings, and the same rule prevails with respect to private corporations.' The rule is not limited to cases where one by contract admits corporate existence, but . is a rule of general application.^ Thus a junior mortgagee can- not defeat a senior mortgage by showing that the corporation to which the senior mortgage was executed was defectively or- ganized, if it be a corporation de facto!' Two things only are necessary to be shown in order to establish the existence of a corporation de facto: 1. The existence of a charter or some law under which the powers assumed might lawfully be cre- ated ; and 2. A user by the party to the suit of the rights claimed to be conferred by such charter or law.^ The rule, however, does not go to the extent of precluding strangers from showing there was no law authorizing a corporation, nor from showing that there was no attempt at corporate organization nor any assump- tion of corporate powers.' Nor does the general rule apply in actions brought against subscribers to the preliminary articles of association for their subscriptions. The reason is that there should be a dejure corporation as a condition precedent to the 1 Hasselman V. United States Mort. 5 -Williamson v. Kokomo B. L. F> Co., 97 Ind. 365; North at aL v. State, Ass'n, 89 Ind. 389. 107 Ind. 856. * Methodist Episcopal Church t» 2 Baker et al. v. Neff, 73 Ind. 68. Pickett, 19 N. Y. 4. 3 Hon V. State, 89 Ind. 249. ' Oroville, etc. R. Co. v. Plumas Co., 4 Cochran v. Arnold, 58 Pa. St. 37 Cal. 354; WUliamson v. Kokomo 399. B. L. F. Ass'n, 89 Ind. 389. 746 SPECIAL EEMEDIES. [§ 537. right of recovery.^ An exception to the rule in some jurisdic- tions is with respect to condemnation proceedings, it being held that a corporation de facto has no such special and extraordi- nary powers as the exercise of the right of eminent domain ;2 though it is held in some cases that the party is amply pro- tected by provisions of statute which require the payment of the compensation before the land is actually taken/ and in others that, even in such cases, suit in equity will not lie.'' A court of equity does not possess the power to restrain a corporation organized under the forms of law from performing acts within its corporate power, merely because some of the steps taken in organizing the company may have been irregu- lar, or because the purpose of the corporation may have been to establish a monopoly. An injunction which would restrain the company from using the corporate organization in the con- duct of their business would be as efficient an annulment of their franchise as would be a judgment against them upon quo warranto. Thus, a trading or manufacturing corporation, until its charter is annulled by proceedings at law, has the same au- thority as an individual trader or manufacturer to sell or con- sign its goods and carry on its business.^ An exception to this rule sometimes stated is, that a court of equity can determine a question of corporate existence whenever it becomes neces- sary to determine some other matter of equitable cognizance. Yet this exception cannot extend to an inquiry which involves the existence of the corporation. Thus, it is the rule that no officer of a corporation can be ousted from his office except by a direct proceeding at law to try his title. The exception to that doctrine is stated to be, that if some other ground of equi- table jurisdiction arises, as where the office is obtained by fraud, by breach of trust, by concealment or treachery, then a court of equity will restrain the acts of such officers. "When persons pretend to act for a corporation, then in a suit to enjoin an act of such pretended officers, which threatens irreparable injury, 1 Richmond Street R. Co. v. Reed, 3 Aurora, etc. R. Co. v. Nutter, 56 83 Ind. 9; WiUiamson v. Kokomo B. Ind. 88. L. F. Ass'n, 89 Ind. 389. 4 National Docks Ry. Co. v. Central 2Morawetz on Priv. Corp., sec. R. Co., 32 N. J. Eq. 755. 147, n. ; Williamson v. Kokomo B. L. » Stockton v. American Tobacco F. Ass'n, 89 Ind. 389. Co., 36 Atl. Rep. 971 (N. J.). § 538.] QXro WAEEANTO. 717 a court of equity will intervene and decide the question of agency. So when the question involves the agency of officers of a corporation to bind the corporation by a contract enforce- able in equity, the court will decide the question of power to make the contract. So where it became necessary to decide who was the proper officer to file an answer in a suit, on ob- jection by a stranger, the question of agency was necessarily determined, but the court refused to examine the legality of the election of the officer who filed the answer, he being clearly a de facto officer.' The rule does not extend to acts of quasi- public corporations outside of their charter privileges, or where they have violated implied limitations upon their general pow- ers so as to create a nuisance or a public injury.^ Sec. 538. Modesof dissolving corporations enumerated and discussed. — The only modes of dissolving a corporation known to the common law were by the death of all its members ; by an act of the legislature ; by a surrender of the charter accepted by the government, or by forfeiture of the franchise, whicli could only take effect upon a judgment of a competent tribunal on a proceeding in behalf of the state ; and neither a court of law nor a court of equity had jurisdiction to decree a forfeiture of the charter or dissolution of the corporation at the suit of an individual.^ The New York courts have held that under early statutes the information could be filed against individuals or corporations exercising or holding a franchise public in its nature upon the relation of a person aggrieved as one of the public, and without leave of the court, where the purpose was to oust the defendants from the enjoyment of such franchise.* Such courts classed turnpike companies as being public in their nature, and distinguished them from merely private corpora- tions. This distinction was not recognized by the Pennsylvania court, which intimated at least that they, in common with banks, canal and bridge companies, were private, though some- what of a public nature; that public corporations were such 1 Stockton V. American Tobacco ' Folger v. Columbian Ins. Co., 99 Co., 36 Atl. Eep. 971 (N. J.), and cases Mass. 367. cited. ^Tliompson et al. v. People, 23 2 Stockton V. American Tobacco Wend. 537; People v. Tm-npike. Road Co., 36 AtL Rep. 971 (N. J.). Co., S3 Wend. 231. 748 SPECIAL REMEDIES. [§§ 539, 540. as concern the government of the country or the administra- tion of justice.! Sec. 539. Proceedings ordinarily, where offense is against the public, must be prosecuted by the attorney-general.— The rule is thus stated by Judge Dillon: " Where a corpora- tion, by the exercise of powers not conferred by its charter, does no private injury, but commits an offense against the public alone, the state may proceed or waive the right to do so, as may be deemed most beneficial to the public interests. If a wrong is done by the abuse of a franchise it is a public wrong, and a proceeding by quo warranto must be by the public prosecutor or other authorized officer of the state, who may act either of his own accord or at the instance of a private relator; but he must act in his official capacity, under a sense of oflicial duty, and not merely lend his name for the use of a private party. The proceeding must be official in fact and not in form only."^ Substantially the same rule was declared by the supreme court of Massachusetts, that an information in the name of the attor- ney-general, which is not brought ex officio, but at the relation of an individual for the protection of his private interests against the acts of a corporation, cannot be maintained for the purpose of restraining the corporation from further use of its corporate powers and from usurping public franchises to which it is not entitled.^ Sec. 540. Corporate franchises — Definition. — An accepted definition of a franchise was stated by Finch to be, a royal privilege or branch of the king's prerogative, subsisting in the hands of the subject.^ A more modern definition is that a franchise is properly an incorporeal hereditament ; a certain privilege conferred by grant from government and vested in an individual.* Special privileges conferred by government upon individuals and which do not belong to the citizens of the 'Commonwealth v. Arrison, 15 Mass. 417; New England Ins. Co. v. Serg. & R. 127. Phillips, 141 Mass. 535; Dimham v. 2 Dillon on Municipal Corporations, Presby, 120 Mass. 385. See also State sec. 899. See also People v. Eailroad v. Douglas County Road Co., 10 Greg. Co., 88 111. 537; State v. Tracy, 48 198. Minn. .497. 4 Finch, 164. 3 Attorney-General v. Gas Co., 143 6 3 Kent, 358. § 541.J QTTO WAEEANTO. Ti9 country generally of common right.' In England franchises were formerly granted by the crown only to persons or corpo- rations ; latterly corporate franchises are commonly granted by parliament. In this country they proceed from the legis- lative power, and are very generally granted to corporations. A corporation may be presently created by the terms of a stat- ute without condition precedent or preliminary. But, very commonly, charters are framed, not of themselves creating, but authorizing the formation of corporations upon preliminary conditions. Under the former class of charters the corpora- tion created is the grantee of the franchise conferred. Under the latter class neither the franchise to be a corporation, nor the particular franchise to be conferred, takes effect before the actual formation of the corporation. When the corporation is formed the franchises conferred vest in it as grantee. Fran- chises so conferred are like any other estate granted upon condition precedent, the estate vesting upon condition fulfilled. But, like every other operative grant, franchises so conferred must have a certain grantee.^ Hence, an act authorizing any person, company or corporation, their successors or assigns, to build certain works in or upon a navigable stream, and collect tolls upon logs or lumber that may be floated or navigated by means of such works, is void, and the franchise thus attempted to be granted is void for the want of a certain grantee.' Sec. 541. Abuse of franchise — Usurping a franchise — Remedy by quo warranto. — Franchises thus being a branch of the sovereign power delegated or conferred, those who as- sume to exercise such privileges where granted must, in the manner of their exercise, conform to the terms and conditions prescribed, and confine themselves within the limit of the au- thority granted. In other words, they must not abuse or mis- use the privilege. In case of an alleged abuse or misuse of such privileges the state may, by means of proceedings in quo war- rcmto, inquire into the manner of the use of the franchise, and if it be determined as a fact that the grantee has been guilty 1 Bank v. Earle, 13 Pet. 519. ' Same case. 2 Sellers v. Union Lumbering Co., 39 Wis. 535. 760 SPECIAL EEMEDIES. [§ 541. of abuse or misuse of such franchise, obtain a judgment of for- feiture ; and for like reasons, where it is alleged that such priv- ileges have not been conferred upon the individual or corpora- tion who assumes to exercise them, the state in like manner may inquire with respect to the authority of such person or corporation to so exercise such privileges ; and if it be deter- mined that authority is wanting, or not conferred, obtain a judgment declaring such person or corporation an usurper, and ousting him or it from the exercise and enjoyment thereof.' A corporation must come up to all the substantial objects for which it was instituted ; if it depart from any of these it is guilty of a breach of trust. The very essence of the purpose of creating it is the implied condition that it will demean itself faithfully and honestly in the use of its franchises.^ In State v. Standard Oil Co., 49 Ohio St. 137, the judgment of the court was that of ouster from the particular power which was adjudged unauthorized. The court was prevented from ouster of the franchise of a corporation on account of the pro- visions of the statute of limitations. There can be no doubt but that the power of the court extends to the forfeiture of the corporate franchise, and may be exercised, in its discretion, to an ouster merely of a power or franchise which is usurped. In the recent noted case of People v. Pullman Palace Car Co., 51 ]Sr. E. Eep. 664, the question of usurpation of powers was elaborately discussed, and it was there determined what constituted an usurpation, and what di(i not, on the part of the defendant, in its business transactions. The defendant com- pany was incorporated under special act of the legislature of the state of Illinois. It was, among other things, provided " that said corporation shall have power to manufacture, con- struct and purchase railway cars, with all convenient append- ages and supplies for the persons traveling therein; and the same may sell or use, or permit to be used, in such manner and upon such terms as the company may think fit and proper. It may be lawful for the company to purchase, acquire and hold such real estate as may be deemed necessary for the successful 1 People V. Turnpike Co., 23 Wend. ^ People v. Turnpike Co., 23 Wend. 231 ; Chesapeake & Ohio Canal Co. v. 321, Eailroad Co., 4 Gill & J. (Md.) § 541.] QUO WAEEANTO. T51 , prosecution of their business, and may have power to sell and convey the same." The usurpations of power complained of were : 1. That the company owned a large ten-story building in Chicago, of the value of $2,000,000, a large part of which is rented. 2. That it owns fifty acres of ground at Pullman Avhich is covered with dwellings, which are rented. 3. That it owns fifty acres of ground at Pullman which is used for streets, alleys, etc. 4. That it owns fifteen acres upon which is built a large business block and hotel. 5. That it owns two churches. 6. That it owns a large number of school-houses, all of which are rented. T. That it owns a large hotel, which it operates. 8. That it owns a theater. 9. That it owns a mar- ket-hall. 10. That it owns a gas-plant. 11. That it owns and operates a water-plant. 12. That it owns and operates a heat- ing-plant. 13. That it owns and operates a brick-plant. Sev- eral other distinct allegations of usurpation were alleged as to ownership and operation of enterprises not connected with or incidental to the primary purpose of the corporation. The court at the outset declared that the enactment creating the corporation was the full measure of its power. In order to- enable it to carry into execution the powers thus conferred, it may exercise other powers known to the law as incidental or implied powers. Implied powers exist only to enable a corpo- ration to carry out the express powers granted ; that is, to ac- complish the purpose of its existence ; and can in no case avail to enlarge the express powers and thereby warrant it to devote its efforts and capital to other purposes than such as its char- ter expressly authorizes, or to engage in collateral enterprises not directly, but only remotely, connected with its specific cor- porate purposes. (Many cases are cited to support the state- ment made as to what powers exist by implication.) It was held that, as the company had the right to erect an office- building, it could erect such an one as would accommodate its needs in the future, and might rent such portions not presum- ably needed until the future increase of business demanded them. This holding was not made after trial upon the merits, but upon demurrer to the answer. It would be important ta know what the court would hold with respect to investment of surplus funds not actually needed at the time, but kept as a 752 SPECIAL EEMEDIES. [§ 541. reserve in case of necessity. "With, respect to the allegations of usurpation in laying out a town and owning and operating gas-plants, water-works, etc., it was held that such scheme was not incident to or necessary to carry on the primary purpose of the corporation, though the averment was admitted by the demurrer that the same was for the sole purpose of furnishing homes for the workmen, and that, under the peculiar condi- tions attending the nature of its business and the location of its extensive works, it was necessary to attract the best class of skill and labor ; that suitable houses for them should be erected ; that they were not built for profit, were not profit- able, and were necessary for the prosecution of its business ; that as incident thereto it was necessary, in order to furnish educational facilities and facilities for religious worship, and to make the houses thus constructed convenient, suitable and at- tractive, school-houses and churches and gas-plants and water- works and sewerage be constructed and maintained; that the stores and hotels constructed were also necessarily incident thereto and all for the accommodation of those workmen, and not for profit, and, as stated, necessary and essential in order to successfully carry on the business which was the primary purpose of the corporation. The same was held with respect to the operation of a farm. It was, however, held, with re- spect to the allegation of holding vacant land, that it was not beyond the corporate power where it was or might be deemed necessary for the future extension of its business, but not for the purpose of erecting houses thereon for the accommodation of its employees ; that the power granted included the right to sell to its passengers intoxicating liquors under a license from the state ; that it might furnish an excess of steam-power to another corporation; that it could not, without express author- ity, or authority necessarily implied, become a stockholder in another corporation; that the continued exercise of powers not authorized, with the knowledge of the state, for a long term of years, and the payment of taxes which the state had expressly supervised, was not a defense to proceedings by the state in quo warranto. It evidently was assumed in this case that the excess of power exercised was a public mischief or injury, for it cannot be the law that every exercise of power in excess of §§ 542, 543.] QUO waeeanto. 153 that strictly conferred can constitute ground of forfeiture. There are many acts committed by corporations thus in excess that do not affect the public at large, except very remotely, if at all, and are more in the nature of ultra vires acts, having their operation upon individuals only. Certainly the building of one house for accommodation of an indigent employee, or one whose services had become more than ordinarily valuable, ought not to be considered an act of usurpation, nor the in- vesting of funds in securities or property, other than for the purpose of speculation ; and I understand the general rule to be that stated by the supreme court of Minnesota, that to con- stitute a misuser of the corporate franchise, such as to warrant its forfeiture, the ultra vires act must be so substantial and con- tinued as to amount to a clear violation of the condition upon which the franchise was granted, and so derange or destroy the business of the corporation that it no longer fulfills the end for which it was created ; and in case of excess of powers it is only where public mischief is done that the state, by the attor- ney-general, should interfere.^ Sbo. 542. Non-user of franchise — Same remedy. — The state may also in like manner, as before stated, proceed to in- quire with respect to the non-user of the privileges granted, and if it be determined that there is such non-user and it is due to causes which will justify a forfeiture of the privilege, the state may have judgment declaring a forfeiture. The material question with respect to those cases which involve the question of abuse of corporate privileges or franchises is, what acts or omissions will constitute such abuse as will justify a judgment of forfeiture. With respect to those which involve the ques- tion of usurpation, the questions ordinarily are whether they are acting under any pretended authority or grant, and if so whether it is sufficient to warrant or justify the exercise of the privilege; and with respect to those cases which involve the question of non-user, whether there is such non-user, and if so whether it is unjustifiable. Sec. 543. Forfeiture only declared for wilful abuse or neg- lect. — The general principle underlying these several propo- 1 State V. MiiiD. T. M. Co., 40 Minn. 313. 48 75i SPECIAL EEMEDIES. [§ 544. sitions has been stated by an eminent jurist. He says : " To work a forfeiture there must be something wrong, and not only a wrong, but one arising from wilful abuse or improper neg- lect. An inability through misfortune to answer the design for which the body-politic was instituted is also cause for for- feiture. It must be something more than accidental negli- gence or a mere mistaken excess of power, or a mistake in the mode of exercising an acknowledged power. There must be an abuse of trust somewhat of such a nature as would ren- der a trustee liable to forfeit his station on complaint of his cestui que trust if the question stood on the relation between them. Corporations are political trustees. Have they fulfilled the purposes of their trust, or acted in good faith, with a view to their fulfillment ? is the question to be asked when they are called upon to forfeit their charter, either for acts of commis- sion or omission, unless indeed they are so generally crippled or broken down in their affairs as, in the judgment of a court and jury, to be incapable of prosecuting their business with safety to that community who granted the charter and who hold the relation of cestui que trust." ^ Suffering an act to be done which destroys the end and object for which a corpora- tion is instituted must be regarded as equivalent to a direct surrender. It cannot then answer the end of its institution.^ Technically non-performance of the conditions of the act of incorporation is deemed ^^r se a misuser that may forfeit the grant.' Sec. 544. Mere technical violations not sufficient to work a forfeiture. — The courts, however, do not act upon mere tech- nical violation. A substantial performance according to the intent of the charter is all that is required of grantees, and in order to warrant or justify the absolute forfeiture of a grant or privilege the violation of the terms prescribed in awarding the grant must be a wilful or intentional violation or disregard of conditions precedent in substantial matters, as distinguished from mere technical acts of commission or omission, or a total 1 Cowen, J., in People v. Turnpike 3 People v. Turnpike Co., 23 Wend. Co., 33 Wend. 236. 193. 2 People V. President, etc. of Bank, 6 Cowen, 211. § 544.] QUO WAEEAITTO. 755 inability to comply with such conditions. It must be conceded that, though the proceedings are against the corporate body, it is the acts of the individual corporators that are the subject of judgment in the court. They obtain the grant and engage to perform the conditions, and when charged with a breach the corporation is accountable upon principles applicable to an in- dividual to whom valuable grants have been made upon con- ditions precedent or subsequent. In these a substantial and reasonable performance according to the intent of the grantor is all that is required, such as is within their ability to perform.^ It has been said that corporations are creatures of the law, and when they fail to perform duties which they are incorporated to perform, and in which the public have an interest, or do acts which are not authorized or are forbidden them to do, the state may forfeit their franchises and dissolve them by an information in the nature of a quo warranto. Citing People v. Utioa Ins. Co., 15 Johns. 358, S Am. Dec. 234; People v. Pittsburg E. Co., 53 Cal. 694; Golden Rule v. People, 118 111. 492. The grant of corporate franchises is always subject to the implied condition that they will not be abused. Citing Chicago Life Ins. Co. v. Needles, 113 U. S. 574. In its relations to the government, and when the acts or neglects of a corporation, in violation of its charter or the general law, become the subject of public in- quiry, with a view to the forfeiture of its charter, the wilful acts and neglects of its oflBcers are regarded as the acts and neglects of the corporation, and render the corporation liable to a judgment or decree of dissolution. Citing Angell & Ames on Corp., § 310 ; Life Ins. Co. v. Mechanics' Ins. Co., 7 Wend. 35 ; Bank Commissioners v. Buffalo, 6 Paige, 497; Ward v. Sea Ins. Co., 7 Paige, 294. This reasoning proceeds upon the theory that the corporation is cognizant of and approves of the acts of its agents; and where it is made to appear that the agent has departed from his duties as prescribed by the corporation, or violated his instructions in the performance of the acts com- plained of and relied upon as a basis for forfeiture, no such for- feiture will be declared. Citing State v. Commercial Bank, 6 Sm. & M. 237.'' 1 People V. Turnpike Co., 23 Wend. 2 People v. Dashaway Association, 193: State v. Farmers' College, 33 84 CaL 114 Ohio St 487. 756 SPECIAL EEMEDIES. [§ 545. Sec. 545. Acts and omissions held to have heen sufficient to authorize the proceeding.— The rules having th'us been presented, v^e can only look for further light to a review of the adjudged cases. The question is still open as to vs^hat acts of commission or omission will constitute a breach of duty such as to warrant the extraordinary action of dissolution of the corporation or forfeiture of the franchise. Where a mutual re- lief association was organized under the laws of a state for the purpose, expressed in the law, of mutual protection and relief of its members, and for the payment of stipulated sums of money to the family or the heirs of the deceased members of such as- sociation, and it was charged and proven that the association issued sixty-four certificates to one person who had no insur- able interest in the insured, and who were strangers to the association, it was held that this was such an abuse of its fran- chise as would authorize a judgment of complete forfeiture, and it was so determined.^ Non-compliance with the requirements of an act of incorporation of a turnpike company as to the con- struction of a road is per se a misuser, for which a forfeiture of its privileges and franchises may be declared.^ So, where the road has been permitted to fall into such a state of decajj- and dilapidation as to render it dangerous or inconvenient to trav- elers.^ Proceedings will lie to forfeit the charter and annul the franchise of a railroad corporation which has abandoned a part of its road, as well as where it has failed to build and operate its entire road. There is no privilege granted or right obtained to operate a part thereof, and where it undertakes to do so it is exercising a franchise or privilege without legal sanction.* So they will lie for the same purpose where the corporation keeps its principal place of business and its records in a place outside of the state where created.^ And also where, under color of its charter to operate a public road, it builds and operates one that is practically for private use or private purposes.^ "Where, how- 1 State V. Cent. Ohio M. F. Ass'n, 39 261; Attorney-General v. Railroad Ohio St. 399. Co., 36 Wis. 466. 2 People V. Turnpike Co., 28 Wend. 5 Attorney-General v. Railway Co., 193. 45 Wis. 579. 3 People V. Turnpike Co., 23 Wend. « State v. Railroad Co., 40 Ohio St. 231. 504. * People V. Railroad Co., S4 N. Y. § SlSa.j QUO WAEEANTO. 757 ever, a turnpike company has without authority expended large sums of money in extending its roads, without any objection or interference on the part of the state, the proceedings will not lie to divest the corporation of the property so acquired.^ Yet the writ will lie against a corporation to contest its claim to exercise a right or privilege to or in the public lands of a state.^ Courts, however, proceed with extreme caution in proceedings which have for their object the forfeiture of corporate fran- chises, and such forfeitures are not to be allowed except under express limitations of their charter or for a plain abuse of power, by which the corporation fails to fulfill the design and purpose of its organization.^ It was held, however, that an information in the nature of a quo warramto would not lie to enforce the dissolution of a corporation organized merely to pro- mote the cause of temperance, on the ground that it has disre- garded its corporate trust and violated its charter by perversion and misapplication of its funds from the object for which it was formed, and from the use for which the funds were given and received, by dividing the same among its members, for the reason that the perversion of the fund is not an injury to the public* The court divided cases of forfeiture into two classes : 1. Gases of perversion, as where a corporation does an act in- consistent with the nature and destructive of the ends and pur- poses of the grant. In such cases, unless the perversion is such as to amount to an injury to the public, who are interested in the franchise, it will not work a forfeiture. 2. Cases of usur- pation, as where a corporation exercises a power which it has no right to exercise. In this last case the question of forfeiture is not dependent, as in the former, upon any interest or injury to the public. Seo. 545a. Monopoly — Use of franchise to create. — Pro- ceedings in the nature of quo warranto have been frequently instituted of late to annul charters on the ground that a cor- poration was organized for the purpose, or was using its fran- 1 Commonwealth v. Turnpike Co., Ohio, 535; State v. Farmers' College, 153 Pa. St. 47. 32 Ohio St. 487. 2 Ohio V. Railway Co., 58 Ohio St. * People v. Dashaway Ass'n, 84 Cal. 189. 114. 'State V. Commercial Bank, 10 758 SPECLAX EEMEDIES. [§ 54:5a. chise for the purpose of establishing a monopoly and stifling competition. The courts have given grave consideration to the questions involved. In a leading case the statement is made " that it appears to be settled that the state as prosecutor must show on the part of the corporation accused some sin against the law of its being which has produced, or tends to produce, injury to the public. The transgression must not be merely formal or incidental, but material and serious, and such as to harm or menace the public welfare. For the state does not concern itself with the quarrels of private litigants. It furnishes for them sufiicient courts and remedies, but inter- venes as a party only where some public interest requires its action. The ground of forfeiture is tersely described as " some misdemeanor in the trust injurious to the public." ^ That court had previously declared that " in the granting of charters the legislature is presumed to have had in mind the restrictions of corporations within chartered limits ; and a departure therefrom is only deemed excusable when it cannot result in prejudice to the public." ^ It was further stated in the former case that there were two questions open for inquiry. First, has the de- fendant corporation exceeded or abused its powers ? and second, does that excess or abuse threaten or harm the public welfare ? The court held in the affirmative as to both propositions. Note. — It was said : " The first question requires us to ascertain what the defendant corporation has done in violation of its duty or omitted to do in the performance of its duty. We find disclosed by the proof that it has become an integral part and constituent element of a combination which possesses over it an absolute control, which has absorbed most of its cor- porate functions, and dictates the extent and manner and terms of its entire business activity. Into that combination, which drew into its con- trol sixteen other corporations engaged in the refining of sugar, the defend- ant has gone in some manner and by some process, for as an unquestionable truth we find it there. All its stock has been transferred to the central association of eleven individuals, denominated a 'board; 'in exchange it has taken and distributed to its own stockholders certificates of the board carrying a proportionate interest in what it describes as its capital stock. The new directors of the defendant corporation have been chosen by the board, made eligible by its gift of single shares, and liable to removal under the terms of their appointment at any moment of independent ac- 1 People V. North River Sugar Re- 2 Leslie v. Lorillard, 110 N. Y. 531. fining Co., 131 N. Y. 583. § 5455.] QUO WAEEANTO. 759 tion. It has lost the power to make a dividend, and is compelled to pay- over its net earnings to the master whose servant it has become. Under the orders of that master it has ceased to refine sugar, and by so much has lessened the supply upon the mai-i^et. It cannot stir unless the mas- ter approves, and yet is entitled to receive from the earnings of the other refineries, massed as profits in the treasury of the board, its pro- portionate share for division amongst its own stockholders holding the sub- stitute certificates. In return for this advantage it has become liable to be mortgaged, not only for its own corporate benefit alone, but to supply with funds the controlling board when reaching out for other and coveted refineries. No one can look these facts fairly in the face without being compelled to say that the defendant is in the combination, and to stay. Indeed, so much is with great frankness admitted on the part of the appel- lant. Its counsel concedes that the stock was transferred to the board mentioned in the agreement and on the terrns and for the purpose naen- tioned in the agreement; and that this action effectually lodged the con- trol of the defendant company, so far as such control can be secured by the voting power, in that board." Sec. 545&. Subject continued. — It is now wfeU settled that when the object and purpose of a corporation, either singly or in combination with others, is to prevent competition in trade and to so control the market for a commodity as to enhance its price, it becomes inimical to trade and commerce, hence un- lawful and injurious to the public welfare. " It follows that it is an abuse of the franchise of a corporation to engage in any enterprise with such intent and purpose, or to use its franchise for the furtherance of any such intent. This question has been regularly met by the courts. Thus, in Judd v. Harrington, 139 N. Y. 105, certain parties who were dealers in sheep and lambs entered into an agreement by its terms organizing an associa- tion for the declared purpose of guarding and protecting their business interests from loss by unreasonable competition. The agreement was to pool their commissions, except in a certain dealing. It was held that the real nature and purpose of the agreement was to suppress competition in an article of food, and to so control the market that they could enhance the price of the article. In People v. Sheldon, 139 JS". Y. 251, certain •coal dealers organized a company known as the Lockwood Coal Exchange. The object of the corporation was to prevent com- petition in the price of coal among the retail dealers in that city by constituting the exchange the sole authority to fix the price which should be charged by the members for coal sold '760 SPECIAL EEMEDIES. [§ 5455. by them. Some of the organizers were indicted, charged with the offense of doing an act injurious to trade or commerce. The case was submitted upon the theory that the purpose, if estab- lished by the evidence, rendered the act illegal, and such ruling was held to be correct. It was said by Andrews, C. J., in rendering the opinion: "The question is. Was the agreement in view of what might have been done under it, and the fact that it was an agreement the eflfect of which was to prevent competition among coal dealers, one upon which the law fixes the brand of condemnation? It has hitherto been an accepted maxim in political economy that competition was the life of trade. The courts have acted upon and adopted this maxim in passing upon the validity of agreements the design of which was to prevent competition in trade, and have held such agree- ments to be invalid." Again he states : " Agreements to pre- vent competition in trade are in contemplation of law injurious to trade because they are liable to be injuriously used. The present case may be used as an illustration. The price of coal now fixed by the exchange may be reasonable in view of the interests both of dealers and consumers, but the organization may not always be guided by the principles of absolute justice. . . . If agreements and combinations to prevent competition in prices are or may be hurtful to trade, the only sure remedy is to prohibit all agreements of that character. If the validity of such an agreement was made to depend upon actual proof of public prejudice or injury, it would be very difficult in any case to establish the invalidity, although the moral evidence might be very convincing." In Arnold v. Pittston <& Elmira Coal Co., 68 N. Y. 558, the action was to recover for the price of a certain quantity of coal which was delivered to the defend- ant by the plaintiff's assignor, under and pursuant to an agree- ment. The question was whether such agreement was valid. The plaintiff's assignor and the defendant were engaged in min- ing and selling coal. The agreement was to the effect that the defendant company should take of the coal produced by the plaintiff's assignor not exceeding two thousand tons per month at the market price, and that the latter should not sell coal to any other person to be shipped in that direction. It was held that the agreement was entered into for the purpose of enhanc- § 5455.] QUO WA.EEANTO. 761 ing the price of coal north, of the state line, and was against public policy and void. Eapello, J., in the opinion says: " That a combination to effect such a purpose is inimical to the inter- ests of the public, and that all contracts designed to effect such an end are contrary to public policy, and therefore illegal, is too well settled by adjudicated cases to be questioned at this day." In People v. Milk Exchange, 145 JST. Y. 26, the action was brought by the attorney-general to vacate the charter of the defendant. In defendant's charter the object of its organiza- tion was stated to be the " buying and selling of milk at whole- sale and retail." A large majority of the stockholders were milk dealers in the city of IsTew York, and creamery or milk commission men in that vicinity. At the first meeting of the board of directors a by-law was adopted, declaring that said board " shall have the power to make and fix the standard or market price at which milk shall be purchased by the stock- holders of the company." Acting under this by-law the board fixed from time to time the price of milk to be paid by dealers. No milk was purchased by defendant, but it did a commission business, selling milk for farmers to dealers, who would pur- chase at the price fixed, guaranteeing payment and charging a commission therefor. The prices so fixed largely controlled the market in and about the city of JSTew York. It was held that the evidence justified a finding that the corporation was a combination inimical to trade and commerce, and hence un- lawful, and that a judgment granting the relief sought was proper. In line with what was said in People v. Sheldon, supra, is the statement of Champlin, J., in Picha/rdson v. Buhl, 11 Mich. 632. After commenting on the tendency of the combina- tion known as the Diamond Match Company to prevent com- petition and to control prices, he says: " It is no answer to say that this monopoly has in fact reduced the price of friction matches. That policy may have been necessary to crush com- petition. The fact exists that it rests in the discretion of this company at any time to raise the price to an exorbitant de- gree." One of the most noted cases in this country is that of State V. Standard Oil Co., reported in 49 Ohio St. 13. The ac- tion there was to vacate the defendant's charter on the ground that it had abused its corporate franchises by becoming a party 762 SPECIAL REMEDIES. [§ 5i55. to an agreement that was against public policy. It was largely in the nature of the familiar trust agreements, some of which have been referred to. However, there was present this ex- ception : that the agreement was entered into by a large major- ity of the stockholders and with reference to their own hold- ings, the corporation not being directly a party. One of the first questions thus presented was the responsibility of the cor- poration itself and the effect upon the corporate franchise. The court declared : " That where all or a majority of the stock- holders composing a corporation do an act which is designed to affect the property and business of the corporation, and which, through the control their numbers give them over the selection and conduct of the corporate agencies, does affect the property and business of the company in the same man- ner as if it had been a formal resolution of its board of di- rectors, and the act so done is ultra vires of the corporation and against public policy, and was done in their individual capacities for the purpose of concealing their real purpose and object, the act should be regarded as the act of the corporation, and to prevent the abuse of corporate power may be challenged as such by the state in a proceeding in quo warranto." It was held that an agreement by which all or a majority of the stockholders of a corporation transfer their stocks to certain trustees, in consideration of the agreement of the stockholders of other companies, and of the members of limited partner- ships engaged in the same business, to do likewise, and by which a,ll are to receive, in lieu of their stocks and interests so trans- ferred, trust certificates to be issued by the trustees equal at par to the par value of their stocks and interests, and by which the trustees are empowered, as apparent owners of the stock, to elect directors of the several companies and thereby control their affairs in the interest of the trust so created, and are to receive all dividends made by the several companies and limited partnerships, from which as a common fund dividends are to be made by the trustees to the holders of the trust certificates, tends to the creation of a monopoly to control production as well as prices and is against public policy. The court, how- ever, was prevented from declaring a dissolution of the corpo- ration by reason of the provision of a statute of limitations. § 5455.J QUO WAEEANTO. 763 It, however, having declared that in making the trust agree- ment it exercised a power which it had no authority under the laws of the state to make, and was continuing to exercise such power, it was further held that it should he ousted from the power to make and perform the agreement or any part of it, and stated that, if thereafter it should continue to carry out the terms of the agreement, it would bo held that it was doing so in violation of the judgment of the court. Judgment of ouster to this extent was ordered. Note. — The following was expressed by the supreme court of Georgia <40 Ga. 583): "All experience has shown that large accumulations of prop- erty, in hands likely to keep it intact for a long period, are dangerous to the public weal. Having perpetual succession, any kind of a corporation has peculiar facilities for such accumulation, and most governments have found it necessary to exercise great caution in their grants of corporate powers. Even religious corporations professing, and in the main truly, nothing but the general good, have proven noxious to this objection, so that in England it was long ago found necessary to restrict them in their pow- ers of acquiring real estata Freed, as such bodies are, from the sure bound to the schemes of individuals — the grave, — they are able to add field to field, and power to power, until they become entirely too strong for that society which is made up of those whose plans are limited by a single life." In People v. Chicago Gas Trust Co., 130 111. 268, the ques- tions involved were somewhat different from those present in the cases above referred to. The action was by proceedings in the nature of quo warranto, the particular ground being that of usurpation of powers, privileges and franchises not conferred by law. There was no question as to the exercise of corporate franchises which were within its grant. The corporation was organized under the general law, and among the objects speci- fied there was, in brief, the right "to purchase, hold or sell the capital stock of any gas or electric company or companies in Chicago or elsewhere in Illinois." It was alleged that the com- pany had purchased and held the majority of stock in four prominent gas companies of the city of Chicago. The princi- pal question presented was the legality of such power of pur- chase and holding. This is one of the features referred to which distinguishes this case. Another is that corporations formed for the purpose of supplying gas are engaged in the performance of duties quasi-puhlic in character. The opinion of the court is very able and elaborate, and the conclusion was 764: SPECIAL EEMEDIES. [§ 5455. reached that under the general law, which provides a method for the formation of corporations for any lawful purpose, a cor- poration cannot be formed to purchase and hold or sell the capital stock of any gas or electric company in Chicago or else- where in Illinois, upon the distinct ground that the object and purpose of such a corporation is to create a monopoly, at least that it tends so to do, and hence is not a lawful purpose; nor can such power be justified on the ground that it is incidental to a lawful purpose, that of the erection and operation of works for the manufacture, sale and distribution of gas and elec- tricity. It was said: "An incidental power is one that is di- rectly and immediately appropriate to the execution of the specific power granted, and not one that has a slight or remote relation to it. (Citing Hood v. Railroad Go., 22 Conn. 1.) That it is not a necessary implication from the express power to main- tain works for the manufacture and sale of gas that the power to purchase stock in other gas companies should also exist ; nor can the right of a corporation to invest in shares of another company be implied because both companies are engaged in a similar business." The doctrine that corporations cannot be- come stockholders in other corporations without express legis- lative authority was strongly asserted and numerous cases cited. It was further stated that " the business of manufactur- ing and distributing illuminating gas by means of pipes laid in the streets of a city is a business of. a public character. It is the exercise of a franchise belonging to the state. Thp serv- ices rendered and to be rendered for such a grant are of a pub- lic nature ; companies engaged in such business owe a duty to the public ; any unreasonable restraint upon the performance of such a duty is prejudicial to the public interests and in con- travention of public policy. Whatever tends to prevent com- petition between those engaged in a public employment or business impressed with a public character is opposed to public policy and is therefore unlawful. Whatever tends to create a monopoly is unlawful as being contrary to public policy." The court cites many cases in support of the statements last made.' iCoke Co. V. Coke Co., 121 111. 530; hurst v. Railroad Co., 43 Ga. 583; Gibbs V. Gas Co., 130 U. S. 396; Coal Transportation Co. v. Pipe Line Co., Co. V. Coal Co., 68 Pa. St. 178; Rail- 22 W. Va. 600. road Co. v. Collins, 40 Ga. 583; Hazel- § 64:5i.] QUO "WAEEANTO. 765 The supreme court of the United States also state that the supplying of illuminating gas is a business of a public nature to meet a public necessity. It is not a business like that of an ordinary corporation engaged in the manufacture of articles that may be furnished by individual effort. {Giobs v. Consoli- dated Gas Co., 130 U. S. 396.) In this case an agreement be- tween two gas companies, in effect regulating the price of the commodity, was held to be unlawful as against public policy, and consequently one who negotiated the agreement could not recover compensation for his services. Among other sufficient reasons given as showing that such an agreement was unlaw- ful was that " where a corporation of such a qioasi-^yxhlio char- acter has granted to it, by charter, a franchise intended in large measure to be exercised for the public good, the due perform- ance of those functions being the consideration of the public grant, any contract which disables the corporation from per- forming those functions, which undertakes without consent of the state to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the contract with the state, and is void as against public policy." In Distilling & Cattle Feeding Co. V. People, 156 111. MS, the questions involved were practi- cally the same as those decided in People v. Chicago Gas Trust Co., supra. The combination was organized in order to obtain control of the manufacture and sale of distillery products by purchasing the stock of various distillery companies and plac- ing it in the hands of trustees. The distinguishing feature is that the trust combination was, not at the time of making the agreement or purchasing the stock a corporation, but merely a combination of individual stockholders with perhaps others. But subsequently such trust combination was changed into a corporation which was organized, owned and controlled by the trustees of the combination, and to which all the property con- trolled by the combination was transfei'red. It was held that such corporation was illegal. In State v. JVebrasla Distilling Co., 2S Neb. TOO, the facts were somewhat similar to those in the case last cited. The same combination was involved and the stock of the defendant corporation was in the same trust. The action was quo war- 766 SPECIAL EEMEDIBS. [§ 5455. ranto to declare a forfeiture of the defendant's franchise. The general statute under which the defendant corporation was organized in one respect was similar to the statute of Illinois, in that it provided that corporations might be organized there- under for the transaction of any "lawful business." Upon the issue formed it was found that the defendant had entered into the combination aforesaid ; that its purpose was to control trade and enhance prices and to destroy competition. It was held that the purposes of the corporation, under its agreement, were unlawful, and judgment followed dissolving the corporation and annulling its franchise. It was stated by the court that " a corporation can only be organized under our laws for a lawful purpose, and any~ act done by such corporation for the accomplishment of a purpose not lawful is unauthorized, in excess of its powers, and therefore illegal and void." " The acts of a corporation, to be lawful, need not necessarily be mala proMMta or mala in se, although such acts are illegal in all cases ; but any act of a corporation which, by the terms of its charter, it is not authorized to do, is in excess of its powers and therefore unlawful." There are some important questions which are conclusively settled by the foregoing decisions. One is that a business is unlawful which is against public policy ; that public policy forbids contracts or agreements which have for their ultimate purpose the destruction of competition and the creation of monopolies as well as the conducting of a business for like purpose and with like interest, and that a corporation cannot be organized for any such purpose; nor can it enter into any such agreement, nor do or perform any act for the accom- plishment of such a purpose. Such acts, being unauthorized and in excess of the power granted or which can be granted, sub- ject the corporation to a forfeiture of its franchise. Note. — Such an array of emphatic decisions against the legality of pool or trust combinations naturally would suggest their extinguishment; yet we find to-day that they are being formed to control almost every well- known commodity. They reach out beyond state lines and absorb the enterprises of other and distant states. We find, in addition to the dec- laration of courts, that legislative action has been taken to prevent the spread of such imlawful combinations. The great question of the day is. Where is the remedy ? because the result is certain and can be easily be fore- told. It is panics, failures, disorder, and the financial ruin of the weak and § 54:55.] QUO WAEEANTO. 767 the upbuildicg of the strong. Is it to be said there is no remedy ? Such a confession would be humiliating in the extreme. To say that the arrogant combination of capital can accomplish that which armed foes without and armed foes within were powerless to do — defy the law and subvert tlie rights of the people — is but the expression of what appears to-day to be an actual fact. It is evident it requires more than vigorous and righteous judgments of courts to stay the impending evil. They can only act when there is an appeal. There is no fear of the courts. The primary duty lies elsewhere; and if I were permitted to suggest, would say that it should be made the bounden duty, with heavy penalty in case of neglect, of the attorney-gen- eral of every state, upon credible information, to immediately commence proceedings to annul the franchise of any and every corporation that either directly or indirectly, with knowledge, does any act in furtherance of any unlawful purpose of the character mentioned. I would go further. I would prohibit every corporation of a sister state or combination, whether the trunk or its branch, from doing any business in the state, declaring and enacting that its deeds, contracts and conveyances should be void and the fruits of its unlawful gain should escheat to the state. Speaking of the Diamond Match Company, it was said by the Michigan supreme court in the case of Richardson v. Buhl, 77 Mich. 632, Sherwood, C. J., delivering the opinion : " The organization is a manufacturing company. The business in which it is engaged is making friction matches. Its articles provide for the aggregation of an enormous amount of capital, sufficient to buy up and absorb all of that kind of business done in the United States and Canada, to prevent any other person or corporation from engaging in or carrying on the same, thereby preventing all competition in the sale of the article manufactured. This is the mode of conducting the business and the manner of carrying it on. The sole object of the cor- poration is to make money by having it in its power to raise the price of the article or diminish the quantity to be made and used at its pleasure. Thus both the supply of the article and the price thereof are made to depend upon the action of a half dozen individuals, more or less, to satisfy their cupidity and avarice, who may happen to have the controlling interest in this corporation, an artificial person, governed by a single motive or purpose, which is to accumulate money regardless of the wants or necessities of over sixty millions of people. The article thus completely under their control for the last fifty years has come to be regarded as one of necessity, not only in every household in the land, but one of daily use by almost 768 SPECIAL EEMEDIES. [§ 5455. every individual in the country. It is difficult to conceive of a monopoly which can affect a greater number of people, or one more extensive in its effect on the country, than that of the Diamond Match Company. It vyas to aid that company in its purposes, and in carrying out its object, that the contract in this case was made between these parties and which we are now asked to aid in enforcing. Monopoly in trade or in any kind of business in this country is odious to our form of gov- ernment. It is sometimes permitted to aid the government in carrying on a great enterprise, or public work under govern- mental control, in the interest of the public. Its tendency is, however, destructive of free institutions, and repugnant to the instincts of a free people, and contrary to the whole scope and spirit of the federal constitution, and is not allowed to exist under express provision in several of our state constitutions. Indeed, it is doubtful if free government can long exist in a country where such enormous amounts of money are allowed to be accumulated in the vaults of corporations, to be used at discretion in controlling the property and business of the coun- try against the interest of the public and that of the people for the personal gain and aggrandizement of a few individuals. It is always destructive of individual rights and of that free competition which is the life of business, and it revives and perpetuates one of the great evils which it was the object of the framers of our form of government to eradicate and pre- vent. It is alike destructive to both individual enterprise and individual prosperity, whether conferred upon corporations or individuals, and therefore public policy is, and ought to be, as well as public sentiment, against it. All combinations among persons or corporations for the purpose of raising or controlling the prices of merchandise, or any of the necessaries of life, are monopolies, and intolerable, and ought to receive the condem- nation of all courts." An important distinction should be observed between com- binations of the character and for the purposes stated and con- tracts which tend to the restraint of trade and indirectl}", per- haps, accomplish the same result. It is held that a party may legally purchase the trade and business of another for the very purpose of preventing competition, and its validity, if supported § 5i0.] QtTO WAEEANTO. Y69 by a consideration, depends upon its reasonableness as between the parties. The whole question was elaborately discussed, and authorities in great numbers cited, in the case otDmmond Match Co. V. Boeder, 106 IST.- T. 473. A distinction is also recognized between mere agreements by corporations, such as railroads, with respect to uniform rates, where none of the corporate franchises are surrendered, and combinations of the character hereinbefore referred to. It may not be unlawful for such companies, where not prohib- ited by statute, to enter into such agreements. Much depends upon the nature and character of the agreement.' The supreme court of the United States have recently had under consideration a traffic agreement between several roads and held that it was obnoxious to the law. The case is not- yet officially reported. Sec. S46. Eifect upon the corporation of abuse of a partic- ular franchise. — The question is sometimes presented, where it appears that there has been an abuse of corporate franchises or privileges, whether the offense affects a particular fault, or a particular branch, or a franchise which the corporation pos- sesses in connection with others, to the extent that the forfeit- ure shall be declared only as to such branch or fault, leaving the corporation in possession and enjoyment of its corporate existence and franchises not affected by the fault. This ques- tion was discussed by Cowen, J., and the conclusion drawn that, where franchises distinct in their character were con- ferred upon a corporation, they might be forfeited without af- fecting the main body. The learned judge cites the case of London v. Yanacre, 12 Mod. 270, where it appeared that, long after the city had been incorporated, King John granted to it the schrievwick of Middlesex, etc., by letters patent. This was held a distinct franchise, the neglect or abuse of which might result in a forfeiture of that alone. Yet he claims that but few of the older cases deny that usurpation in any respect is generally cause of total forfeiture, or that maladministra- tion or non-feasance in one department shall have the same effect. He seems to be committed somewhat to the doctrine 1 Chicago, P. & I E. Co. v. L B. R. Co., 5 McLean, 450. 49 7T0 SPECIAL REMEDIES. [§ 547. of the case of the city of London, where it was determined that the taking of an illegal toll was sufficient to work a for- feiture' of the city charter with its thousand franchises. Be this as it may, he declared that the franchise of being a cor- poration for one general purpose, such as to erect and make profit from a turnpike, to bank, insure, or the like, comes within the doctrine which denies that a franchise is divisible.^ Sec. 547. Distinction between misuse of a franchise and acts ultra vires. — There is. a distinction recognized by the courts between misuse of a franchise and acts or contracts ultra vires. It is not the performance of every unlawful act that will constitute an abuse of corporate privileges. It was • sought by quo warranto to deprive a gas company of its fran- chise on the ground that the company had violated the terms of the agreement upon which the assent of the city to the use of the privileges was granted. After stating that the exist- ence of gas companies did not contravene public policy, and that their existence depended upon the right to lay pipes in the public streets, and that the consent to lay such pipes could, with best interest to all concerned, be left to the city author- ities, who had control of the use of the streets, and after de- claring that the granting of such right by a city was more in the nature of an easement than a franchise, it was said : " It is a matter peculiarly local in its character, and which should always be, to a reasonable extent, under municipal superyision, to prevent clashing among the many convenient uses to which . ways must necessarily be subjected — for water, drainage and other urban needs. It is not a state franchise, but a mere grant of authority, which, whether coming from private own- ers or public agents, rests in contract or license, and nothing ■'else, or an unauthorized intrusion. A violation of a contract or an unauthorized intrusion must be redressed, as all ordinary wrongs are redressed, by the usual legal remedies. It in no way concerns the state whether the power is granted or with- held, nor whether the corporation has or has not fulfilled its agreements." ^ 1 People V. Turnpike Co., 23 Wend. 2 Maybury v. Gaslight Co., 38 Mich. 221. 154. § 548.] QUO WAEEANTO. Y71 Sec. 548. Distinction illustrated. — This distinction was clearly expressed by the supreme court of Ohio. The claim there was that a railroad was occupying lands, the use of \yhich had been condemned for a right of way for railroad purposes by its predecessors, for private purposes merely — that of a switch track to certain industries. The statute of limitations had inter- vened so as to prevent the state from proceeding against thb original corporation for which the land had been condemned. The court state that the only claim that can now be asserted against the operating company is that, without authority of law and against his consent, it is wrongfully occupying the prop- erty of the relator, and proceeds to state the inquiry, Is it within the jurisdiction conferred on the courts in a proceeding in qxio warramto to afford relief of any kind in such a case ? which it answers in the negative. The court proceeds to state that, ex- cept where the proceeding is brought to try title to an office in which the defendant may be ousted and the claimant inducted, or where it is brought to determine the title of a corporation to property claimed by the state, it is always limited to a deter- mination of the right of a corporation to the exercise of certain powers and franchises which can only be derived from the grant of the state. It is not a remedy to determine disputes between it and private persons as to the ownership of the prop- erty where the power of eminent domain has been conferred on a corporation by the state. It is not a mere matter to be determined in quo wa/rranto whether the corporation in the exercise of the power has perpetrated a fraud and wrongfully or unjustly acquired the property of a private person, and if found guilty to oust it therefrom. Other and more appropriate remedies are provided the citizen for the assertion and protec- tion of his rights of property in such cases. He may adopt any of the remedies he would have under like circumstances against a natural person. For usurpation or abuse of a franchise the state must always be the plaintiff, as it alone can complain of such usurpation of its authority or abuse of privileges granted. It is not then a suit for the vindication of the proprietary rights of the individual against the claims of the corporation; the remedy of the individual against a corporation for the recovery of property being the same as against a natural per- 772 SPECIAL EEMEDIES. [§ 549. son.' Yet when such a corporation for a period of five years fails to construct the line of railroad named in its charter, but condemns private property and constructs a railroad wholly unsuited to the wants of the public, and for the benefit only of coal mines owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate poAvers, franchises and privileges, and in a proceed- ing instituted in behalf of the public authorities judgment of forfeiture will follow.^ So the writ will not lie to exclude a street railway company from laying its tracks in a public street of a city where the right so to do has been granted by the com- mon council ; ^ nor to test the validity of a perpetual grant made by a township to a suburban railway company of a right to operate its road upon a township highway where the cor- porate life of the corporation is limited to thirty years ; * nor when a turnpike company opens its roads through the land of an individual without making him compensation, pursuant to the direction of the act of incorporation. The company in such a case is a mere trespasser, and the injured party has an adequate remedy in the course of the common law.' Sec. 549. Discretion exercised in declaring forfeiture. — Whether a corporation which is shown upon a quo wa/rranto proceeding to have misused or abused its franchises should be ousted of its corporate franchises is a question not capable of determination by any fixed rule or test, but rests in the sound discretion of the court, in the light of all the circumstances of the case before it.^ Where, however, a corporation has been guilty of such negligence as is made by the terms of the char- ter a cause for the forfeiture of its franchise, and the state, on the relation of the attorney-general, demands a dissolution on account thereof, the court has no discretion to refuse such judg- ment upon the ground that public or private interest would be better subserved by preserving the existence of the corporation.' 1 State V. Railway Co., 50 Ohio St. 5 People v. Turnpike Co., 2 Johns. 239. 190. - State V. Railroad Co., 40 Ohio St. « State v. People's Mut' Ben. Asso- 504 ciation, 43 Ohio St. 579. 3 People V. Railroad Co., 92 Mich. 522. 'State v. Pennsylvania & Ohio * Attorney-General v. Railway Co., Canal Co., 23 Oiiio St. 131. 98 Mioh. 65. §§ 550, 551.] QUO WAEEANTO. T73~ Sec. 550. Non-user, to justify a forfeiture, must be total — Proceedings must be brought by the attorney-general. — An information in the nature of a quo warranto, praying that the charter of a corporation be declared forfeited for the non-user or misuser of its franchise, cannot be maintained if it does not appear to have been brought by the attorney-general in behalf of the state, or to be prosecuted by him in its behalf. This, we have seen, is the rule established by the great weight of au- thority, and is the only rule consistent with the nature and ob- ject of the proceeding. The mere fact that the information appears to be upon the relation of an individual will not defeat the proceeding. It may be rejected as surplusage; but if it appears that it is brought by or in behalf of an individual or a corporation, and at their expense, the proceedings will fail. It is for the attorney-general on his ofHcial responsibility to determine whether he desires to prosecute ; or, in case the pro- ceedings have been improperly brought by private relators, to apply for leave to amend the information so that it shall ap- pear to have been brought in behalf of the state.* The doc- trine was early asserted that, in order to justify a judgment of forfeiture on the ground of non-user of a franchise, such non-user must be total.^ This is probably stating the rule somewhat too strong. Perhaps the better statement of the rule is, that suffering an act to be done which destroys the end and object for which a corporation was instituted will justify a forfeiture, as such would be equivalent to a surrender of its corporate rights.' Sec. 551. Insolvency and suspension of operations. — Hence it Vas held that insolvency and refusal, to pay bills in specie or other lawful money on demand are not of themselves sufficient to oust a bank of its corporate rights.* The mere refusal to pay, unless arising from continued insolvency, is no ground of for- feiture. Suspending operations may in some cases be a pru- 1 Attorney-General v.Adonai Shomo » People v. President, etc. of Bank, Corporation, 167 Mass. 431. 6 Cowen, 211. 2 People V. President, etc. of Bank * People v. President, etc. of Bank, of Washington and Warren, 6 Cowen, 6 Cowen, 311; People v. President, 217. etc. of Bank, 6 Cowen, 317; State v. Commercial Bank, 10 Ohio, 535. 774 SPECIAL EEMEDIES. [§ 552. dent and justifiable measure, and consistent with the ultimate solvency of the bank.' Yet if the suspension of payment or of operation shall be continued for a length of time,, the right to dissolve the corporation vcould be established. A bank circu- lation is created to provide by its credits a currency which may serve as money. "Whenever this currency becomes discredited, irredeemable and inconvertible, so that the bank no longer ful- fills its end, there is a misuser of its powers, such as upon com- mon-law principles may work a forfeiture.^ "Where such a bank has assigned or transferred so much of its property as to render it incapable of continuing banking operations, then it becomes incapable of fulfilling the ends and objects of its incorporation, and forfeiture will be declared.' Sec. 552. Statutory remedies in such cases. — The rule may be different where the legislature has provided different reme- dies, but if the conditions are such that, by reason of insolvency or other causes, such remedies are unavailing and will 'not af- ford protection, then the rule is not changed. It was held that where the charter of a bank provided, in case of suspension of payment, for the^ payment of twelve per cent, damages to the holder of its notes, this was a remedy adequate to correct the evil, and forfeiture would not be declared. It did not ap- pear but that the suspension of payment was temporary, owing to unusual conditions.* "Where a charter for a college was granted, and the object of the corporation, as evinced by legis- lative acts in regard to the institution, was to create an institu- tion of learning in which there should be a professorship of agriculture, but the general course of instruction was to be con- trolled by the trustees, the doctrine was expressed that, so long as the trustees maintain under the charter an institution of learning, with a professor of agriculture and other competent instructors for a preparatory and liberal elective course of classical, scientific and agricultural education, and the general design of the institution is being faithfully accomplished by 1 People V. President, etc. of Bank, 3 People v. President, etc. of Bank, 6 Co wen, 311; People v. President, 6 Cowen, 317. etc. of Bank, 6 Cowen, 317; State V. ^ State of Ohio v. Commercial Commercial Bank, 10 Ohio, 535. Bank, 10 Ohio, 535. 2 Same cases. § 553.] QUO WAEEANTO. 775 them to the best of their ability, the franchise to be a corpo- ration will not be regarded as forfeited to the state, merely be- cause of a partial decay of the agricultural department, caused by students refusing to take that special course of instruction.^ Sec. 553. Usurpation, what may constitute. — The extent of the inquiry, where there is an alleged usurpation of a franchise, is practically the same in all jurisdictions. It reaches to the manner of the organization of a corporation. The right to be a corporation is a franchise, to acquire which the prescribed statutory conditions for the formation of the corporation must be substantially complied with, without the omission of any requirement, though a substantial rather than a literal com- pliance with each provision of the statute will suffice.^ Hence the question always is in such cases : Was there a substantial compliance with conditions precedent ? And generally it may be said that where the thing required to be done is done, but not literally as, directed, it will be held a substantial compli- ance ; but where any one requirement of such a character, as to be a condition precedent, is entirely omitted, then there is no such substantial compliance as is required by law. Hence, where the law required that the articles of incorporation must be subscribed by five or more persons, a majority of whom must be residents of the state, and acknowledged by each be- fore some officer authorized to take and certify acknowledg- ments of conveyances of real property, it was held that the acknowledgment was a condition precedent, and that the fail- ure of one of such persons to acknowledge the instrument was fatal to the proceeding and to the existence of the corpora- tion.' Where, however, the certificate stated the pla,ce of busi- ness, but did not describe it as the principal place of business, as required, this was held a substantial compliance.'' Where the affidavit required in such cases to be attached to the cer- tificate stated that ten per cent, of the amount subscribed had been actually paid in, omitting the words " good faith," which 1 State V. Farmers' College, 82 Ohio 3 People v. Monteolto Water Co., 97 St. 487. Cal. 376. 2 People V. Selfridge, 53 CaL 331; ^Ex parte Spring Valley Water People V. Montecito Water Co., 97 Works, 17 CaL 133. Cal. 276. 776 SPECIAL EEMEDIES. [§§ 554, 555. the statute required, but it was recited in the certificate that more than ten per cent, had been actually in good faith paid in, it was held there was a substantial compliance.' Where the acknowledgment taken by the notary omitted to state that the persons whose acknowledgments were taken were person- ally known to the notary, but did contain a statement that the persons who signed appeared before him and acknowledged the paper, it was held a substantial compliance.^ Sec. 554. Existence of de facto corporation not subject to collateral attacli. — It is to be observed that, unless the state complain, a de facto corporation must be considered as possess- ing a corporate character. Neither can the stockholders, when sued upon their individual liability, raise the question of non- compliance with the law; nor can the existence of the corpo- ration be questioned upon collateral attack.' Sec. 555. Whether proceedings should he against the cor- poration or its officers. — We have seen in a preceding chap- ter that in some jurisdictions it is held that, where the com- plaint is that of usurping the franchise of being a corporation, the proceedings should be against the individuals who it is claimed are guilty of the wrongful act, and not against the pretended corporation by name. If the latter course is taken, it is held to be an aclcnowledgment of the existence of the cor- poration, which is inconsistent with the theory or fact of usurpation.* In other jurisdictions this technical nicety is not observed, but rather the averments in the complaint or infor- mation are to be relied upon as determining the intent and purpose of the information. It was held, however, in a court that had adopted the rule first stated, that it only applied where the assumed corporation had never been a corporation, either de facto or dejure. Where the corporation was such de facto but not dejure, because of non-compliance with stat- utory requirements, then the proceeding Avas proper against it 1 People V. Railroad Co., 45 Cal. 306. fore, People v. Railroad Co., 15 Wend. = People V. Cheeseman, 7 Colo. B76. 113; People v. Stanford, 77 Cal. 360; 3 People V. Mont'ecito Water Co., 97 State v. Cincinnati G. L. Co., 18 Ohia Cal. 376. St. 263. * See, in addition to cases cited be- § 556.] QUO WAEEANTO. 77T by its corporate name, to determine the question of its exist- ence de jure} Sec. 556. Extent of the inquiry. — The inquiry extends to ascertain and determine whether the corporation is exercising powers not conferred. Being mere creatures of the statute, they possess only those properties which their charters or the law confers upon them, either expressly, or as incidental to their existence.^ Hence the question is always in such cases whether the authority exercised is within the corporate grant, or otherwise conferred by law. Such inquiry often involves nice and intricate questions of construction of laws, and is be- yond the power of statement of any definite test or rule. One of the first cases where this question is directly involved arose in JSTew York and was determined in 1818. The legislature of that state had duly incorporated the Utica Insurance Company. In addition to the exercise of powers conferred relating to in- surance, it assumed to exercise banking powers also, whereupon the attorney-general instituted proceedings by information to oust the corporation from the exercise of banking powers, claiming they were not conferred but were being usurped. It was conceded that at common law the right of banking was a common-law right belonging to individuals and to be exercised at their pleasure. It was claimed, however, that this right was restricted by the act of 1804, and that since that time the right of banking by any company or association became a fran- chise or privilege derived from the grant of the legislature, and therefore the corporation must show such a grant of au- thority. It Avas held that the right of a corporation to carry on the business of banking was a franchise. That such right must be expressly conferred upon the defendant corporation, and judgment of ouster was declared.' Of course such judg- ment only affected the particular franchise usurped. The rule was stated that judgment of ouster is rendered against individ- uals for unlawfully assuming to be a corporation. It is ren- dered against corporations for exercising a franchise not au- 1 People V. Montecito Water Co., 97 4 Wheat. 518; Le Coutenix v. Buflfalo, Cal. 376. 33 N. Y. 383. ' Dartmouth College v. Woodward, ^ People v. Utica Ins. Co., 15 Johns. 359. 7TS SPECIAL EEMEDIES. [§ 557. thorized by their charter. In such case the corporation is ousted of such franchise, but not of being a corporation. Sec. 557. Proceedings to onst from the exclusive right to exercise a franchise.— It has been held that the proceeding would lie to oust a corporation from the exchisive right to ex- ercise a franchise. Hence, where a city ordinance conferred upon a gas company the exclusive right to lay its pipes in the streets and alleys of a city, it was held that such city, in the absence of clear legislative authority, could not grant to any person or corporation such exclusive right. That the right to such use of the public streets of a city is a franchise, and must emanate either directly or indirectly from the legislature.^ That such an ordinance is void, as being in restraint of trade, a grant of monopoly, and therefore against public policy and in direct conflict with the whole theory of a free government, was the determination of an able court.^ Note.— In State v. Gas Co., 18 Ohio St. 363, one of the grounds urged against the gas company was that it refused to comply with the terms and conditions of an ordinance regulating the price to be charged for furnish- ing gas. The answer was that the city council enacted such ordinance from corrupt motives in an irregular manner, and that the price so fixed was arbitrary and less than the cost of manufacture. The question was presented as to the power of the courts to inquire into the .motives of such members of the common council. It was conceded that, as to matters re- lating to strictly legislative duties, their motives could not thus be inquired into, but with respect to the ordinance in question, it was not of general character, but operated on the defendant alone. The authority of the council was the exercise of a discretion conferred upon it by the legisla- ture, which might have been conferred elsewhere, and the company af- fected had a right to demand that it should be honestly exercised for the purpose for which it was given. A ferry franchise was made exclusive on condition that the grantee and his successors should at all times keep the ferry in good order and repair and furnish the needful facilities for ferrying foot-passengers over a river. An information in quo warrcmto averred, generally, a long-continued neglect to fur- nish such facilities, a want of repair of the ferry, neglect in 1 State V. Cincinnati Gr. L. Co., 18 2 Norwicli G. L. Co. v. Norwich C. Ohio St. 363. See Norwich G. L. Co. G. Co., 35 Conn. 19. V. Norwich C. G. Co., 35 Conn. 19. § 558.] QUO WAEEANTO. T79 management, refusal at times to ferry passengers, and tte charge of illegal tolls. The demand was against the exclusive- ness of the franchise. It was held that qxw warranto was equally available to forfeit the exclusiveness of a franchise as to forfeit the entire franchise. It was said that the act, or omission to act, which will constitute a violation of the condition, must be a course of conduct ; not a single failure to carry a passenger, or several isolated acts of negligence, but a continued, persistent neglect of duty must be shown be- fore a failure to afford facilities would be proven. Facilities, in the sense here used, means everything incident to the gen- eral prompt and safe carriage of passengers — boats in good repair, appliances answering the purpose, and readiness and willingness to perform throughout the year. Interruptions by ice, floods, accident to machinery or employees, might often occasion temporary inconvenience to the public, but of these the public would have no right to complain. It is obvious that the charge which would cover a violation of the condition must go to a persistent and general course of conduct cover- ing more than special days and acts. It must be continuous through months and perhaps years.^ Sec. 558. Effect of statutes extending the remedy to in- clude abuse of powers. — In many of the states the writ has been extended by statute, the remedy being authorized " where any corporation exercises powers not conferred by law." In such jurisdictions the use of the proceedings may reach only the excess of the exercise of power and not affect the corporate franchise as such. Thus in Illinois the remedy was used to correct the illegal action of a board of education in excluding colored children from the public schools;^ and in Kansas to oust the board of regents of the University of Kansas from the exercise of corporate powers in attempting to collect a fee for the use of the library, and excluding students from the use of the library, for the non-payment of such fine. It was held that such acts were an unwarranted assumption of power.' It is true 1 Commonwealth v. Sturtevant, 37 ' State v. Regents (Kan.), 40 Pac. Atl. Eep. (Pa.) 916. Rep. 656. 2 People V. Board of Education, 101 111. 308. 780 SPECIAL EEMEDIES. [§ 559. these were institutions public in their nature, but this fact seemed to present the greatest obstacle to the application of the doctrine asserted, it being assumed that in case of private corporations the doctrine was of strict application. In Ohio the proceedings were held proper where the object was to oust the defendant railroad from a right it was exercising in respect to the canal lands of the state, on the ground that the inquiry related to a right or privilege claimed and exercised by a cor- poration under the laws of the state in respect of lands that constituted a part of the canal system of the state, and calls upon the defendant to set forth the grounds upon which it claims such right or privilege, and that such is a proper office of a proceeding in q%w warranto} The proceeding was held appropriate to determine whether a railroad company had exceeded its powers in the manner of constructing a bridge over a navigable stream, it being authorized by public act, to oust it from the exercise of such particular franchise.^ Sec. 559. Other remedy existing — Eifect of. — It is often stated that proceedings by quo warranto will not lie where there are other remedies. There are so many qualifications which would attach to such a rule that it can hardly be classed as a rule. The existence of other remedies does not deprive the state or the public of this remedy, where there is an abuse or misuser of corporate franchises.' As we have seen in some jurisdictions where other remedies are provided to determine the right of office in private corporations, the statutory remedy must be resorted to, but in matters of public concern the pub- lic have the right in some form to this remedy. In fact it is held by some courts, and such is the weight of authority, that the jurisdiction of the courts with respect to it is beyond the control of legislatures. Where the matter in controversy re- lates to private rights or inquiries, which may be redressed in the ordinary way by proceedings at law, then the proceeding by quo warranto will not lie ; but it is no answer to an informa- tion or in quo loarra/iito proceedings that individuals aggrieved 1 Ohio v. Railway Co., 53 Ohio St. 3 People v. Turnpike Co., 23 Wend. 189. 221 ; People v. Turnpike Co., 23 Wend. 2 People V. Railroad Co., 15 Wend. 254 113. § 560.] QUO WAEEANTO. 781 have tlieir remedy by private action, or that a penalty is im- posed for a particular non-feasance, unless the remedy by quo warranto is taken away in express terms or by necessary impli- cation.^ Sec. 560. Estoppel — When applicable. — The doctrine of estoppel has been applied where proceedings affect a private relator, where, for instance, he has acquiesced in the proceed- ings, or taken part in producing or creating the existing con- ditions "with knowledge of irregularities or defects which ren- der them void. This doctrine is more generally asserted with respect to corporate elections.^ "Where, however, the proceed- ings are instituted by the state, either to forfeit a franchise for abuse or non-user, ot to oust an individual or corporation from the exercise of a franchise on the ground of usurpation, the doctrine of estoppel does not apply, unless there has been some express recognition by the state tantamount to a consent on its part that the right or privilege shall be so exercised. Such recognition must be by the sovereign power to have such effect, and not by a department thereof having no authority to grant the franchise.' The fact that the state is a stockholder will not in any manner affect its right to demand a forfeiture of the franchise.* 1 People V. Turnpike Co., 33 Wend, monwealth v. James Eiver Co., 3 Va. 331. Cases, 190. ^State V. Lehre, 7 Eioh. (S. C.) 334; ^ Commonwealth v. James Eiver State V. McNaughton, 56 Vt. 786. Co., 3 Va. Cases, 190. 3 Baker V. Backus, 33 111. 110; Com- CHAPTEE 28. MANDAMUS. Sec. 561. Character and origin of the ancient writ. 563. The modern writ, in the United States, an ordinary proceed- ing or action at law. 563. Office of the writ — To put in- ferior tribunals or public per- sons in motion — To compel the performance of minis- terial duties. 563a. Demand — When necessary. 564,565. The relator — Effect of modern legislation. 566. Eule in federal courts. 567. Where private interests in- volved, the right of the re- lator must clearly appear. 568. Discretion exercised in allow- ing the writ. 569. Extent of the rule — Laches. 570. Exceptions to the rule. 571. Discretion does not extend to denial of clear legal right where there is no other rem- edy. 573. Discretion of the actor not con- trolled — Ministerial duties only — Ministerial duties de- fined. 573. Abuse of discretion — When controlled. 574 Discretion exercised with man- ifest injustice may be con- trolled. 575,576. Whether writ will be granted in anticipation of a Seo. defect of duty or error of conduct. 577. Writ only lies where there is no other adequate legal remedy. 578. Illustrations of the application of the rule. 579. Eemedy in equity — Effect of. 580. Adequate remedy — What the term includes. 581. Action for damages ordinarily not ; nor is replevin to recover , bonds or papers in custody of a public office. 582. Eemedy by appeal or writ of error ordinarily precludes mandamus. 583. Eemedy by quo warranto pre^ eludes mandamus. 584. Indictment — Party subject to, does not supersede manda- mus. 585. 586. Writ does not lie to compel either useless or tualawful acts. 587. Proceedings pending in chan- cery— Effect of. 588. Legal remedy, in order to su- persede mandamus, niust be prompt. 589. Mandamus the remedy where there is failure of positive duty, without discretion, 590. Clear right of relator must ap- pear. 591. Question further discussed. Seo. 561. Character and origin of the Avrit.— The writ of mandamus being of very ancient origin, we naturally look to Says Blackstone: "A the old commentators for a definition. § 562.] MANDAMUS. T83 writ of mandamus is in general a command issuing in the king's name from the court of king's bench, and directed to any per- son or corporation or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty, and Avhich the court of king's bench has previously determined or at least supposes to be consonsant to right and justice. It is a high prerogative writ of a most extensively remedial nat- ure." 1 It is the highest judicial writ known to our constitu- tion and laws, and, according to long approved and well estab- lished authorities, only issues in cases where there is a specific legal right to be enforced, and where there is a positive duty to be and which can be performed, and where there is no other specific or adequate remedy.^ Sec. 662. The modern writ, in the United States, an or- dinary proceeding or action at law. — It would not be profit- able to the reader to give an historical review of this ancient writ and remedy in this work, or in detail to trace its trans- formation in this country from the high prerogative writ of England to what it is now in modern practice — an action at law between parties. The right to the writ and the power to issue it has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.' Courts have enlarged upon these definitions. Thus, it is stated by the Maryland court that " mandamus is a writ commanding the performance of some act or duty therein specified, in the performance of which the applicant for the writ is interested, or by the non-performance of which he is aggrieved or injured. As a preventive remedy simply it is never used. Its use is confined to those occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." * Note to Sec. 563.— In England, as late as 1838, this writ could be issued by the king's bench only. It could not be issued by the court of common 1 3 Black. Com. 110. ' Commonwealth v. Dennison, 34 2 Kendall v. United States, 13 Pet. How. 66. 613; State v. Supervisors, 3 Pin. 553 « Ligg v. Mayor, etc., 43 Md. 303. (Wis.); United States v. Boutwell, 17 WaU. 604 78J: SPECIAL EEMEDIES. [§ 563. pleas or any other court known to the English law except the court of king's bench. The peculiar powers of that court are oleai'ly stated in 3 Black. Com. 42, in the following words: "The jurisdiction of this court is very high and transcendent. It keeps all inferior courts within bounds of their authority, and may either remove their proceedings to be deter- mined here or prohibit their progress below. It superintends all civil cor- porations in the kingdom. It commands magistrates and others to do what their duty requires, in every case, where there is no other specific remedy. It protects the liberty of the subject by a speedy and summary interposi- tion," etc. It is from this high and transcendent jiu-isdiction that the court of king's bench derives the power to issue the writ of mandamus. In all of the authorities there, it is uniformly called a " prerogative writ," in order to distinguish it from the ordinary process which belongs to courts of justice; and it was not originally considered as a judicial proceed- ing, but was exercised as a prerogative power. These peculiar powers were possessed by the court of king's bench because the king originally sat there in person, and aided in the administration of justice ; and where the laws did not afford a remedy and enable the individual to obtain his right by the regular forms of judicial proceedings, the prerogative powers of the sover- eign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law. And although the king has long since ceased to sit there in person, yet the sovereign is still there in construction of law, so far as to enable the court to exercise its prerogative powers in his name; and hence its power to issue the writ of maiidamus, the nature of which Judge Doddridge so forcibly describes by calling it extra-judicial and one of the flowers of the king's bench. It is therefore evident that, by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the court of king's bench, in which the sovereignty might by construction of law be supposed to sit, and to exert there its prerogative powers in aid of the court, in order that a right might not be without a remedy. Taney, C. J., in Kendall v. United States, 13 Pet. 629. A judgment in such a case, therefore, stands like the judg- ment of an ordinary action at law, subject to review under similar conditions.' The proceeding is regarded as an original proceeding or action at law, wherein exists, as in ordinary ac- tions, mesne and final process, pleadings, issues of law and fact, having none of the elements of final process.^ Seo. 563. Office of the writ. — Heliet hy ma?ida7tius cannot be granted in equity, but only at law.^ Its olfice is to compel 1 Hartman v. Greenhow, 103 U. S. ^ Smith v. Bourbon County, J.27 672. U. S. 105. 2MoBane v. People, 50 111. 503. § 563a.J MANDAMUS. T85 a party to do that which it is his duty to do without it, con- ferring no new authority, and only then when the partj' thus to be coerced has it in his power to perform the act.^ It can- not be issued in a case Nvhere discretion and judgment are to be exercised by the officer, and can be granted only where the act required to be done is merely ministerial and the relator without other adequate remedy, except that it may bring into exercise judicial powers.- A mandamus is not a preventative writ. Its office in part is to put inferior tribunals or public persons in motion. It commands the performance of ministe- rial acts, or, being addressed to subordinate judicial tribunals, requires them to exercise their functions and render some judg- ment in cases before them, but not to compel them to come to any particular decision;' not to rectify errors.' The foregoing are in the main the general conditions which attach to m,afn,- damus. As will be noticed hereafter, the rules thus declared yield to some extent in cases possessing exceptional features ; jet it may be truthfully said that there is no branch of the ju- risprudence of this country where the general principles which attach, or the rules which apply, are as well settled .and as firmly adhered to as those which attach and apply to proceed- ing by Tnandamius. Sec. 563a. Demand — When necessary. — Where the duty to be performed is of a public nature, no duty to demand its per- formance devolves upon any one, and express demand for its performance is not required as a condition of application for the writ. The law itself stands in the place of a demand, and the omission to perform stands in the place of a refusal.* Thus, no demand is necessary as a condition of resort to mandamus to compel a county clerk to perform the duties of his office in the matter of apportioning taxes to be levied in the several subdivisions of the county, or in doing so to credit to the sub- division entitled thereto the amount of overpayment for pre- vious years as determined by commissioners duly appointed.' 'Brownsville Taxing District v. 3 People v. Inspectors, 4 Mich. 185. Logue, 129 IT. S. 493. * State v. Cornwall, 73 N. W. Eep. 63. 2 United States v. Seaman, 17 How. « Same case. 235; Ex parte Black, 1 Ohio St. 30; Secretary v. McGarrahan, 9 Wall. 398. 50 786 SPECIAL EEMEDIES. . [§§ 664, 565. The rule is otherwisje as to duties which do not partake of a public nature and more nearly affect private rights. In such cases express demand is required, and a refusal to comply with such demand, either direct or by conduct, must appear.' Sec. 564. The relator. — The courts are agreed upon the prop- osition that a private individual can apply for a writ of man- damus in a case where he has some private or particular inter- est to be subserved or some particular right to be preserved or protected by the aid of this process.^ In fact in many states statutes have been enacted which provide that in such cases the action is so far personal that it may be brought and pros- ecuted in the name of -the relator as plaintiff, and not in the name of the state. Where, however, public rights and duties are to be subserved or enforced, the courts are not in harmony with respect to the right of • a citizen to apply for the writ. The great weight of authority, hoiyever, is in favor of the proposition that, even in such cases, any citizen interested in having the public duty performed or public right enforced may be a relator.^ Sec. 565. Eelator continued. — In matters of mere public right the people are the real party ; in matters of private inter- est they are the nominal party merely. It is the, right, if not the duty, of every citizen to interfere and see that a public offense be properly pursued and punished and that a public grievance be remedied, and ordinarily, in such cases, the wrongful act or refusal is no more the concern of one citizen than another. As the law does not confer the right nor im- pose the duty upon any one, not even an officer, if it were held 1 United States v. Boutwell, 17 visors, 56 N. Y. 249; Union Pacific Wall. 604. R. Co. v. Hall, 91 U. S. 343; State v. estate V. Commissioners, 93 Ind. Bailey, 7 Iowa, 390; Napier v. Poe, 13 133; State v. Doyle, 40 Wis. 175 People V. Inspectors, 4 Mich. 185 Sanger v. Commissioners, 35 Me. 291 Ga. 170; State v. Henderson, 38 Ohio St. 644. Contra. Mitchell v. Board- man, 79 Me. 469; Sanger v. Commis- Union Pacific E. Co. v. Hall, 91 U. S. sioners, 25 Me. 391. See also People 343. V. Inspectors, 4 Mich. 187; People v. 3 People V. Collins, 19 Wend. 56; Board of State Auditors, 43 Midi. State V. Doyle, 40 Wis. 175; Hyatt v. 433. Allen, 54 CaL 353; People v. Super- § 566.] MANDAMUS. 787 that a citizen of the county could not make the application, it would seem to follow that no one could, and hence there might be a case of great public interest without remedy.^ The prin- cipal reasons urged against this doctrine are that the writ is prerogative in its nature — a reason which is of no force in this country, and no longer in England, — and that it exposes a de- fendant to be harassed by many suits. An answer to the lat- ter objection is said to be, by the federal court, granting that the writ is discretionary with the court, it may be well as- sumed that it will not be unnecessarily granted.^ Note. — Where the relief sought is a matter of public right the people at large are the real party, and any citizen is entitled to a writ of manda- mus to enforce the performance of such public duty. It is sulBcient if he is a citizen and as such interested in the execution of the laws. State v. Cunningham, 83 Wis. 90, 134; State v. Cornwafll, 73 N. W. Rep. (Wis.) 63. Hence a citizen and taxpayer may resort to mandamus to compel the county clerk, in apportioning county taxes, to carry into effect equalization assess- ments of the previous year as made by commissioners appointed for that purpose under Wisconsin laws, and to give such subdivisions of the county the credit they are entitled to as determined by such commissioners. The town or municipality is not a necessary party, nor is it in its corporate ca- pacity affected by such determination. It does not affect its revenues, nor impose a debt upon the municipality. It immediately and directly affects each taxpayer in the amount of his tax. State v. Cornwall, 73 N. W. Rep. 63. A wife whose husband has abandoned her, or is temporarily absent, has a right in her own relation to the writ to compel a sheriff to release to her exempt community property, such as household furniture, tools, etc., that may have been seized under execution against the husband, and have the execution set aside for the benefit of herself and family. State v. Creech, 51 Pac. Rep. 368. See sec. 590. Sec. 566. Relator coutinned — Rule in federal courts.— It may be that the supreme court of the United States does not approve of the doctrine to the full extent herein stated. It was not necessary, perhaps, in the case it -had under con- sideration. The doctrine stated by it is that private persons may move for mandamus to enforce a public duty, not due to the government as such, without the intervention of the gov- ernment law oflBcer, and the doctrine applies in case of appli- cation to compel the performance of duties to the public by 1 People V. Collins, 19 Wend. 56. 91 U. S. 343; Ayres v. State Auditors, 2 See Union Pacific R. Co. v. Hall, 42 Mich. 433. 7SS SPECIAL EEMEDIES. [§§ 567, 568. corporations. They state that an application for a mandamus has been supposed to have some analogy to a bill in equity for the restraint of a public nuisance, and a bill may be sustained to enjoin the obstruction of a public highway when the injury complained of is common to the public at large and only greater in degree to the complainants; citing the Wheeling Bridge Case, 13 How. 518. The court held that merchants having frequent occasion to receive and ship goods over the Union Pacific Eailway could lawfully become relators in a suit against the railway company, on behalf of the public, without the assent or direction of the attorney-general of the United States, or the district attorney for the district of Iowa, where they resided, to compel the company to operate its road ac- cording to law.^ Sec. 567. Where private interests involved, the right of the relator must clearly appear. — Where, however, private interests are involved, distinct from those of a public nature, and it is sought to enforce such private rights or interests by means of mandamus, the right and title of the relator to the relief must clearly appear. In fact, the relator in such a case is a party to the suit and his interest as such must appear. "Were it otherwise, a mere stranger might obtain a mandamus officiously and for purposes not desirable to the real part}''.^ Sec. 568. Discretion exercised in allowing tlie writ. — It is often said, and sometimes held, that the granting or refus- ing of the writ is a matter of discretion. The writ originally was called a prerogative writ. It originated from a necessity to furnish a remedy to compel the performance of a specific duty in cases where the ordinary forms of legal procedure fur- nished jio adequate remedy, and issued by the exercise of the sovereign power of the king, who originally sat in the king's bench in person. As this exercise of power could not be con- trolled, the issuing of the writ was necessarily discretionary, and was liable to be issued or refused as the king might see fit. When the power became vested in the courts of England, and 1 Union Pacific R. Co. v. Hall, 91 476; People v. Collins, 19 Wend. 56. U. S. 343. See sec. 590. 2 King V. Sheriff of Chester, 1 Chit. §§ 569, 5Y0.] MANDAMUS. 789 when transmitted to our own courts, it was and still is re- garded as discretionary, as. distinguished from a writ of right. But although in this sense discretionary in the court to grant or refuse the remedy, yet it is not an absolute or arbitrary dis- cretion, but th« power is to be- exercised in conformity to, and may be regulated and controlled by, certain rules of law dic- tated by experience and incorporated into our system of judi- cature. The distinction between an absolute discretion and that which, is governed by legal rules is well recognized: the former is not reviewable, the latter is.^ The Wisconsin court announce the doctrine that the discretionary power of the court extends only to a writ applied for in aid of a mere private right ; that where the writ is invoked in behalf of the state, as a pure prerogative writ, in matters publici juris, there is no discretion.^ Note. — The writ is no longer a prfirogative writ in this country. In some states it retains some of its former prerogative characteristics. Sec. 569. Extent of the rule — Laches. — It may be said that the result of the doctrine announced is, that the writ prac- tically issues as of course, except in particular cases, where it appears that the writ if issued would be unavailing, or the right to be enforced or duty performed is a matter of doubt; or the right of the relator does not clearly appear ; or that by reason of laches or other conduct on the part of the relator it would be inequitable to issue the writ. Where the relator has for an unreasonable time slept upon his rights, the court may refuse the writ. In determining, however, what will consti- tute such unreasonable delay, regard should be had to the cir- cumstances justifying the delay, to the nature of the case and the relief demanded, and to the question whether the rights of the defendant or other persons have been prejudiced by the delay.' Sec. 570. Exceptions to the rule. — There are cases where the doctrine of discretion has been extended beyond the lim- 1 People V. Common Council, 78 3 state ex rel. v. Doyle, 40 Wis. 320. N. Y. 56, opinion by Chief Justice 3 People v. Common Council, 78 Church. See also Brooke v. Widde- N. Y. 56. combe, 39 Md. 386; Union Pacific E. Co. V. Hall, 91 U. S. 343. 790 SPECIAL EEMEDIES. [§ 570. its stated. They are, however, exceptional in character and circumstances. It was stated by the supreme court of Illinois that it was a sound legal principle that cases may arise "where the court will not grant a mandamus, when the granting thereof will, in a collateral manner, decide questions of importance between persons who are not parties to the proceedings and have had no notice or opportunity to interpose their defense ; or where it will be attended with manifest hardships and diffi- culties.1 And the Massachusetts court held that it was not proper to issue a mandamius where it appeared that an action was pending in which the same question might be tried.^ The principle in that and similar oases is not that of discretion, but rather another, which is that, where a court of competent ju- risdiction has obtained jurisdiction of the subject-matter, it will be left to proceed to determine the questions involved without interference by another tribunal. It appears to the writer that during the past few years the use of the remedy by mandamus has been more than ordinarily frequent in the courts of Michigan, which he attributes to the disposition on the part of that court to relax the rigor of the rules applicable to such remedy to meet individual cases. That court frequently expresses the doctrine that the discre- tion of the court or tribunal will not be reviewed, and some- times they state that it is with great hesitation that the court acts in a matter involving the discretion of a court or judge. "Where the court had made an order closing proofs in a. chan- cery case, where it appeared that the issues were important and ought not to be disposed of without, proofs being taken on both sides, and that the failure to take proofs on the part of the relator was due to the illness of one of the solicitors for the relator, mandamus issued to vacate such order.' It was said by this court that it would not undertake to review ques- tions involved, in the trial of a cause upon an application for mandamus to compel the circuit judge to vacate an order grant- ing a new trial; that the trial courts have a large discretion 1 People V. Farquer, Breese (111.), 68. 8 Lansing Lumber Co. v. Ingham, 2 Graves v. Hill, 8 Pick. 46. See 108 Mich. 305. also Commissioners of Highway^ v. People, 99 III 587. § 511.] ■ MANDAMUS. ~ 791 in such matters, in the exercise of which the superior court ■vvill not interfere unless the abuse of discretion is palpable ; ^ that where the aflS.davit on motion for a new trial contains something upon which the circuit judge is called upon to exer- cise his judgment, it becomes a matter addressed to his discre- tion, and the supreme court has no authority to issue a manda- mus to direct him to rescind his action.^ The right of a court to issue the writ, ordering a recount of the vote in a case where the governor of a state has issued his proclamation in conformity to law that a proposed constitu- tional amendment had received a majority vote of the people and had become a part of the state constitution, was not de- termined. "When the question was presented to the New Jersey court, ample reasons for denial of the writ were found upon other grounds. It was declared that the question of recount was one of public policy, under the circumstances, as no indi- vidual or private right was affected. The terms of the article under which the amendment was submitted, declaring how the vote should be canvassed, and imposing the duty upon the governor, after determining that the amendment had received a majority vote, to issue a proclamation forthwith declaring that it had been adopted by the people, was in effect a declara- tion by the legislature that, so far as the government was con- cerned, public policy required that the question should be at rest when the chief executive had performed that duty. It was further stated that, if the power inheres in the court to order the ■inamdambus, it would require a very clear case to in- duce the count to intervene for the purpose of reopening the count and subjecting to litigation a subject of such paramount importance, and the matters presented would not justify it.' Sec. 571. Discretion not allowed to refuse a clear legal right where there is no other remedy.^- There can be no discretion in the court to refuse the remedy, when demanded by a person holding a clear legal right under the laws of a state, with ho other remedy to enforce it. In such a case the 1 C. & Gr. L. R. Co. V. Newton, 89 ^ state v. Board of Registry, etc., Mich. 549. 38 Atl. Rep. 848. ^Shiiner v. Circuit Judge, 17 Mich. 67. 792 SBECIAL EEMEDIES. [§§ 572, 573. law and the right of the citizen would be imperative upon the court.' As stated by another court, it is an abuse of judicial discretion to deny a writ of mandamus where the application is made to enforce a clear legal right; where the duty to be en- forced is plain and positive; where substantial damage will fol- low its non-performance; where there is no other adequate remedy ; no laches chargeable to applicant, and no special rea- sons which render resort to the remedy inequitable.^ Sec. 572. Discretion of the actor not controlled — Minis- terial duties only. — That the writ will not lie to control judgment or discretion which has been reposed elsewhere is a principle of universal recognition. The judgment or discretion thus conferred is personal to the court, body or person, and no court can substitute its own judgment and discretion for theirs. The only difficulty ordinarily presented is the determination whether the act or duty is one which requires some "degree of judgment or discretion. If the duty is mandatory, required by law, and no discretion is confided as to the manner of its exer- cise, then the remedy is available, otherwise not. Hence it is generally asserted that the only acts which courts can right- fully control by this remedy are such as are purely ministerial.* And duties of this character which may be compelled by man- damus are defined as those imposed by law and not by contract, or those which arise necessarily as an incident to the office in the case of a public officer, involving no discretion in their exercise, but which are mandatory and imperative.* A minis- terial act is one to be performed under a given state of facts in a prescribed manner, in obedience to legal authority, and with- out regard to or exercise of the judgment of the one doing it upon the propriety of its being done.'' Sec. 573. Abuse of discretion — When controlled. — A pub- lic officer or inferior tribunal may be guilty of so gross an abuse 1 Moody V. Fleming, 4 Ga. 115, 48 Secretary v. MoGarrahan, 9 Wall. Am. Deo. 210. 299. 2 New V. Voege (Wis.), 71 N. W. « State, Charleston C. & C. E. Co. v. Rep. 880. Whitesides, 30 S. C. 579. ' United States v. Seaman, 17 How. s Maroum v. Ballot Commissioners, 225; State v. Governor, 22 Wis. 110; 32 W. Va. 263. § 573.] MANDAMUS. 793^ of discretion or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. In such case mcmdamus will af- ford a remedy. The discretion vested in official bodies must not be exercised arbitrarily ~f or the gratification of feelings of malevolence, or for attainment of merely personal or selfish ends, but for the public good, and should be controlled by an honest judgment and not by passion or prejudice.^ Hence it was held upon a hearing by a city council upon petition for the revocation of a license that the board is bound to find the com- plaint true or untrue according to the evidence, and if the un- disputed evidence and admitted facts establish its truth the board may be compelled by mandamus to revoke the license,, even though a majority have voted that the charges are un- true.^ Note to Sec. ^'1%.— Discretion, abuse o/.— It was said: "They" (the board) " could not rightfully, and against the undisputed evidence and the ad- mitted facts, find the complaint to be untrue. As a general rule, mandamus , only lies where there is no other adequate remedy, and cannot be availed of as a writ of error. Here there is no other adequate remedy. But so long as an inferior court or tribunal acts within the scope of its authority touch- ing any matter about which it must exercise its discretion, its action can- not be revised by mandamus. . . . It is not the province of a mandamus- to detei'mine and adjudicate disputed rights, but to enforce undisputed riglits and duties. But in the case at bar, as indicated, there were no dis- puted facts to be determined and no discretion to be exercised. The return to the writ denied no allegation therein, and so admitted the several charges contained therein, including the charges that the defendants, as mayor and common council, wilfully, unreasonably, persistently and negligently re- fused to revoke the license, and wilfully and unreasonably abused their power and authority. Such being the admitted facts, the peremptory writ of mMudamus should have been awarded." The same court in another case had the same general subject under consideration. There the fact was that a county board of supervisors rejected certain names from a petition for the removal of a county seat, on the ground of a want of apparent identity with the poll list, and refused to hear extrinsic evidence to establish such identity. The statement of the court is, that " while it may be conceded that the board had no power to compel the attendance of witnesses and require- them to submit to examination and cross-examination under oath as in a court of justice, yet, when the nature of the proceeding, the powers of the- iStatev. Kellogg etal., 95 Wis. 673; 2 state v. Kellogg et aL, 95 Wis. Illinois State Board of Dental Exam- 673. iners v. People, 133 IlL 337. 791 SPECIAL EEMBDIES. [§§ 574, 575. board, and the practical necessities of the case are considered, we think it clear the proof and method of proof tendered were competent, and that in refus- ing to receive it and rejecting these names the board acted arbitrarily and illegally, and that for the purposes of this appeal it is proper to assume that if evidence had been received it vrould have appeared that these one hun- dred and eight signers were competent and legally qualified. . . . Good faith on the part of the board required it to act fairly and impartially in the matter, and to give a reasonable opportunity to parties interested to produce such proof as they might be able, and when produced to weigh it in like manner. No doubt the decision of the board, when regularly and fairly made as to the facts proved, would be conclusive. But here the board illegally refused to consider any facts dehors the petition and poll lists, and denied the right, essential to a fair hearing, of producing evidence. A decision thus arrived at cannot be held conclusive without violating every principle upon which a fair and impartial determination depends." The court in stating the purposes of the writ, and with special reference to acts resting in discretion, afiirms that while the writ will not lie in any matter requiring the exercise of official judgment or resting in sound dis- cretion, it does lie to correct arbitrary and Illegal action. State v. Super- visors, 88 "Wis. 356. Seo. 574. Discretion exercised with manifest injustice. — There are, however, cases which show that, if the discretion is ■exercised with manifest injustice, the court is not precluded from commanding its due exercise.^ The proceedings must, however, show a flagrant abuse of discretion, and of such a character as to clearly show that the discretion of the court, body or officer has not been exercised. The court then pro- ceeds upon the theory of commanding the exercise of discre- tion, not of revising it. Sec. 575. Wliether writ will be granted in anticipation of a defect of duty or error of conduct. — There is some conflict of opinion as to whether the writ will issue until there has been an actual omission of duty or error of conduct. It is con- tended, on the one hand, that there can be no such error or omission until the time arrives for the performance of the re- quired duty, and hence the writ cannot lie, and that it is im- material that there may be a well-founded belief that the duty will not be performed, or even that there is a threat to that 1 Topping on Mandamus, 14; Davis Ga. 115, 48 Am. Dec. 310; Village of V. Commissioners, 63 Me. 396; Water Glencoe v. People, 78 IlL 382; Com. Commissioners v. Common Council, v. Boone Co. Court, 83 Ky. 638; State -83 Mich. 164; Moody v. Fleming, 4 v. Megowan, 89 Mo. 156. § 5''6.] MANDAMUS. 795 effect;* while on tlie other hand, the contention is that, as the very object and purpose of the writ is to prevent disorder and failure of justice, it ought to be used upon all occasions M^here the law has established no specific remedy, and where injustice and good government there ought to be one; that the statutes granting to certain courts general superintendence over subordinate courts, and the power to issue the writ to such courts, and to corporations and individuals, necessary to the furtherance of justice and the regular execution of the laws, vests a judicial discretion in such courts, to the exercise of which the courts have abstained from laying down any pre- scribed limits; and therefore in the exercise of such discretion, in order to secure the execution of the laws, the court is not obliged to wait until the evil is done before issuing the writ, where the person or corporation against whom the writ is de- manded has clearly manifested a determination to disobey the laws.^ Sec. 576. Discnssion of question continued, — In consider- ing the question the Massachusetts court notice the cases re- ferred to by Mr. High as sustaining the statement of the text of his work, and reach the conclusion that either they are in- applicable or that they were decided upon other grounds. In those cited from Maryland and Kansas, the only day when the respondents, could by law act upon the subject in question had either passed, or had not arrived, when tne writ of mcmdamus was applied for, while those cited from Louisiana were at- tempts by a creditor of a municipal corporation or of the state to secure a priority by writ of mandcwius to its treasurer to pay the debt of the petitioner, and the writ was refused in the one case because it appeared by the record that the proceed- ings were fictitious and collusive, and in the other because the treasurer had not received the money, and could not, therefore, be in default in not paying it. The Massachusetts court held that, where a city council, authorized by statute to maintain a iHigh, Extraordinary Remedies, La. Ann. 16; State v. Commission- sec. 12, citing State v. Carney, 3 Kan. ers, 17 Fla. 707. 88; Commissioners v. Commission- 2 y^^ttorney-General v. Boston, 133 ers, 20 Md. 449; State v. Burbank, 33 Mass. 460, and oases cited; Farns- La. Ann. 298; State v. Dubuclet, 34 worth v. Boston, 121 Mass. 178. 796 SPECIAL EEMEDIES. [§§ 5T7-679. ferry at such rates of toll as the board of aldermen may from time to time determine, orders that the ferry be run free of toll on and after a future day, the court, on application made before that day arrives, may, by a writ oi mandamus to the city council, compel the city to continue to collect the tolls es- tablished by the board of aldermen.^ Sec. 577. Wi'it only lies where there is no other adequate legal remetly. — It is only in oases where there is a specific legal right to be enforced, or where there is a positive duty to be performed, and when there is no other adequate legal rem- edy, that the writ of mandamus issues.^ It has been said that this is not universally true in relation to corporations and min- isterial officers ; ' but such an exception, though questioned by a later decision of the New York court,* was subsequently ap- proved in other cases. Sec. 578. Illustration of the application of the rule. — A mandanrnus will not lie to compel a clerk of the court to issue an execution upon a judgment, because in case of refusal to do so in a proper case the statutes of some of the states provide a plain, speedy and adequate remedy, and, independent of the statute, the court has ample power upon motion to direct that execution issue.^ l&or will it be granted to compel the clerk of a court to deliver papers in his possession to the relator, as there is an adequate remedy by application to the judge of the court for an order directing the clerk to deliver such papers.* Sec. 579. Existence of a remedy in equity — Effect of. — " By legal remedy is meant a remedy at law, and though the party might seek redress in chancery, that of itself is not a 1 Attorney-Geueral t. Boston, 133 ^ People v. Supervisors, 11 N. Y. Mass. 460. 563. 2 State ex rel. Wolfe v. Supervisors, * pickett et al. v. Owen, 66 Iowa, 29 Wis. 79; People v. Supervisors, 11 485. See, however, Garonette v. N. Y. 563; People v. Hawkins, 46 Haley, 104 Cal. 497; Town of Hay- N. Y. 9; Button v. Village of Han- ward v. Pimental (Gal.), 40 Pao. Rep. over, 42 Ohio St. 215; Baboook v. 545. Goodrich, 47 Cal. 488. e People v. MoGoldrick, 33 N. Y. S. 3 McCullough V. Mayor, 23 Wend. 441. 459, 2 Barb. 389. § 579.] MANDAMUS. 79Y conclusive objection to the application. That may and should influence the courts in the exercise of the discretion which they possess in granting the writ under the facts and circumstances of the particular case, but does not affect their right or juris- diction. The principle which seems to lie afc the foundation of this writ and the use of it is that, whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail the aid of this may be invoked." ^ It was stated by the United States supreme court, " a court of equity is sometimes resorted to as ancillary to a court of law in obtaining satisfac- tion of its judgments. But no court having proper jurisdiction and process to compel the satisfaction of its own judgments can be justified in turning its suitors over to another tribunal to obtain justice. ' It is no objection, therefore, to the use of this remedy {mandamus) that the party might possibly obtain another by commencing a new litigation in another tribunal." ^ This doctrine was more emphatically expressed by the supreme court of Michigan. It was said : " Courts of law do not, in de- ciding such questions (referring to other remedies as a ground for denial of the writ of mandamus), take into account remedies in equity. They may be regarded in determining the exercise of discretion in allowing the writ, but they cannot affect the ju- risdiction. There is no case where a court of law has its juris- diction cut off by the existence of equitable remedies. The rule is the reverse — that equity will not interfere if legal rem- edies are adequate. There is the strongest possible reason why a party should not be turned over to the tedious and dilatory process of a long suit, where there are no issues that need it." Speaking with reference to the particular case, the court con- tinued: "The only question that could arise in the class of cases now before us is whether the bonds are in the possession of the respondent. If they are, the right to have them restored is a legal conclusion not open to question." ' Under the section wherein the question of the discretion of 1 People V. New York, 10 Wend. 2 Knox County v. Aspinwall, 34 375; Com. v. Commissioners, 33 Pa. How. 376. See Walkley v. Muscatine, St. 318; La Grange v. State Treasurer, 6 Wall. 481. 34 Mich. 468; Tawas, etc. R. Co. t. ^La Grange v. State Treasurer, 24 Iosco Circuit Judge, 44 Mich. 479. Mich. 468. 798 SPECIAL REMEDIES. [§ 579'. the court in issuing the writ is discussed, incidentally the fur- ther question, whether the writ would issue where there was another remedy provided, was referred to. We find the ex- pression used with respect to other writs — that they will not lie where there is another adequate remedy. It must follow- that as between such writs the more appropriate is the one that should be resorted to, and the mere fact that one may be re- sorted to does not operate to the exclusion of the other if more appropriate ; and further, that it is a matter within the discretion of the court. Thus it is held that a writ of prohibi- tion issuing from the highest court of common law is the ap- propriate remedy to restrain a tribunal of peculiar, limited or inferior Jurisdiction from taking judicial cognizance of a case not within its jurisdiction. The power to issue such writs is quite generally, either by the constitution or laws of particular states, conferred upon their appellate courts. By statute in Massachusetts the power of the court extends to corporations and individuals. There it is declared by the court that the court therefore is vested with ample power to issue writs of prohibition in proper cases, where there is no adequate rem- edy. The issue of the writ was there upheld to restrain county commissioners from proceeding with the assessment of dam- ages caused by the taking of lands by a railroad company for a passenger station, on the ground that the law did not pro- vide for compensation; and it was said: "In the present case, if the proceedings for the assessment of damages had gone on to final judgment, they might indeed. have been quashed by a writ of certiorcf/ri. Eut the fact that the remedy by petition for writ of certiorari will be open to the land-owner after final judgment affords no reason why the court should now refuse a writ of prohibition, and thereby put the petitioner to the trouble, expense and delay of a trial before a tribunal which has no jurisdiction of the case, and to whose jurisdiction the petitioner has objected at the outset of the proceedings." ^ Yet in one of the subordinate courts of New York it was held that where the proceedings were subject to review by certiorari, prohibition would not lie.^ iConn. River R. Co. v. County 2 People v. Clute, 43 How. Pr. 457 Com'rs, 137 Mass. 50. §§ 580, 581.] MANDAMUS. T99 Sec. 580. Adequate remedy — What the term includes. — It is the mere inadequacy and not the mere absence of all other legal remedies, and the danger of the failure of justice without it, that must usually determine the propriety of this writ. "Where none but specific relief will do justice, specific relief should be granted if practicable, and when a right is. single and specific it usually is practicable.' To supersede the remedy by mandaimos a party must not only have a specific, adequate, legal remedy, but one competent to afford relief upon the very subject of his application.^ Sec. 581. Action for damages ordinarily not; nor is re- plevin to recover honds or papers in custody of a public officer. — Hence an action for damages against an officer for neglect of duty is not equally convenient, beneficial and effect- ive as the proceeding by mandate, since it would not compel him to do the specific act which the law requires.' It was- stated in McCullough v. Mayor, 23 Wend. 457, "although as a general rule a mandamus will not lie where the party has an- other remedy, it is not universally true in relation to corpora- tions and ministerial officers. ISTot with standing they may be liable in an action on the case for a neglect of duty, they may be compelled by mandamus to exercise their functions accord- ing to law." In that case it was determined that it was the duty of the common council to take the necessary measures to have the sums awarded as compensation to owners of land, by rea- son of the opening of a street, collected, and the performance of this duty could be compelled by m,andam,us, though the party had an action against the officers for neglect of duty. In fact, were the rule otherwise, the use of the writ would be superseded in the great majority of cases where allowed. In a subsequent case in New York doubt was thrown upon the expression quoted from MoOullough v. Mayor. It was there said ; " If such an exception exists it can extend, I think, no further than was expressly recognized in the former case, viz. : If there be a refusal to perform a duty expressly devolved upon 1 La Grange v. State Treasurer, 34 ' Babcock v. Goodrich, 47 Cal. 488. Mich. 468. See also Babcock v. Good- See People v. Supervisors, 11 N. Y. rich, 47 Cal. 488. 563; People v. Mead, 24 N. Y. 114-,. 2 Babcock v. Goodrich, 47 Cal. 488. People v. Hawkins, 46 N. Y. 9. 800 SPECIAL EEMEDIES. [§ 581. the corporation, though an action on the case would perhaps lie, a mandamus may be awarded ; " and that is hardly more than saying " if the remedy by action be doubtful a mandamus will lie." ^ Hence it was held \h.aA. mandam^us would not lie against a county to compel it to refund money collected upon an assess- ment made against a non-resident; that the assessors were liable to him in an action for the amount of the tax and ex- pense of collection. In a later case in that state it was stated : •" But a right of action against the officer who ought to per- form the duty can never be an answer to a motion for a maii- damus to compel its performance, because, if this were so, the remedy would be taken away in nearly every case ; for the right to an action for damages generally exists where a party is en- titled to a remedy by mandamus against a ministerial officer ; " approving what was said in McCuUoughv. Mayor, supra? The doctrine declared in that state seems to be, if the decision of its courts can be reconciled on any theory, that in those <;ases where a right of action exists, in which the appropriate relief can be granted, other than actions against an officer or corporation for neglect of duty, it supersedes mamdamus. Thus, in a case determined later than those heretofore cited, where it appeared that the petitioner had a clear right of action against the town to recover his proportion of certain moneys, m,am,damus would not lie to compel payment.^ In the case of Peoj>le v. Mead, supra, it was held that the facts of the particular case were sufficient to take it out from the application of such rule. These facts were that the town had collected the tax authorized by special act to pay the in- terest on certain bonds, and that mamdamus was the 'appropri- ate remedy to enforce payment. In referring to the cases which hold that the existence of a right of action against the town precludes mandamus, it wa.s said: "None of them pre- sent the case of a proceeding prescribed by statute for raising money by a local tax for the benefit of a class of creditors', where that proceeding has been carried on according to law nearly to its completion, where it has proved efPectual in rais- ing the money from the taxpayers, who were the proper par- 1 People V. Supervisors, UN. Y. 503. 3 People v. Hawkins, 46 N. T. 9. 2 People V. Mead, 34 N. Y. 114. § 581. J MANDAMUS. 801 ties charged with its payment, and where the only step wanting to produce satisfaction to the creditor is the payment of the money so raised into his hands." This was held if it were con- ceded that an action against the town would lie. It was de- termined it would not. Note.— It was further stated in this case: " If the defendants are allowed to persist in refusing to make payment, on the ground that the relator has a right of action against the town, and they should act on that suggestion and prosecute the town, the anomaly would be presented of the legal pur- suit by a creditor of money owing by the town which it had already raised and collected from the taxpayers and placed in the hands of a public offi- cer for the very purpose of being paid to his creditors — all in performance of specific statutory directions, — but where, in consequence of the perversity of the official persons whose duty it was made to pay it over, it could not be obtained by the creditor. Upon the argument of the defendant's counsel judgment must be recovered against the town, which would have no means of satisfying it without further legislation, while at the same time the money collected specifically to pay such creditor must remain in the hands of the treasurer, no person being by law entitled to take it from him. except those official persons who refuse to have anything to do with it. It seems to me one of the most appropriate cases for the remedy by man- damus against the recusant officers which can be conceived. The remedy against the town, conceding that an action will lie against it, is inadequate, for towns are noc presumed to have any property liable to seizure on exe- cution, and they have no power of taxation which would enable them to raise this money again." See sec. 753. The existence of a right of action was held to preclude man- damus where the supervisors refused to follow the directions of a legislative act requiring them to audit and allow the sal- aries of judges, on the ground that such judges had a remedy by action against the corporation.^ And it was also early held that the writ would be denied to compel a corporation to trans- fer stock which the relator claimed to be entitled to, on th§ ground that he had an action against the corporation for a re- fusal to make the transfer.^ This case has not been followed generally, though in some jurisdictions it has been recognized. It may be stated that ordinarily, where a particular method of raising money for local public purposes is prescribed by stat- ute, the party entitled to receive it has a right to the full and perfect execution of the power conferred, which may be en- 1 Ex parte Lynch, 3 Hill, 45. 2 Ex parte Fireman's Ins. Co., 6 Hill, 343. 51 802 SPECIAL EEMBDIES. [§ 582. forced by the writ of mandamus, though relief might be had in an action at law.^ The fact that an action will lie upon the oflBcial bond of an auditor for the improper refusal on the part of such auditor to draw a warrant, where such duty is spe- cifically enjoined by law, will not supersede the writ of man- damus. It is not an adequate remedy within the meaning of that term. It would not compel him to do the specific act which the law requires him to perform.^ Nor is replevin a proper proceeding to recover bonds or papers deposited with a public ofiicer. The custody of such papers belongs to the ofiBcer in charge, and mandamus to compel the custodian to deliver them up to the owner is the only safe process. The remedy by replevin would not only involve a needless legal contention, but it is not a proper or lawful thing to allow a sheriff on such a writ to intermeddle with public papers. The policy of the law requires them to be guarded by their official custodian, and it would be a monstrous abuse if public officers could be exposed to the visitation of ministerial officers who might be commanded by a writ, issued without previous order or supervision of a court, to seize upon and deliver over to any one who should sue out the process any document or muni- ment to be found there.^ Sec. 582. Remedy by appeal or writ of error ordinarily precludes mandamus. — "Where, however, the party may ob- tain full relief by appeal or writ of error, or other legal pro- ceeding, mandamus will not be awarded.* But the mefe fact that there exists a right of appeal is not conclusive. Thus, it was stated in acknowledgment of the general rule, that, " in granting this remedy, courts are always disposed to confine it to cases where there is no other adequate specific remedy." " But," they say, " the existence of a remedy of another nature which is not adequate furnishes no reason for refusing it, if the necessity of justice requires it." And further, referring to the particular case : " An appeal, if resorted to, will not give 1 People V. Mead, 24 N. Y. 114. People v. Board of Police, 107 N. Y. 2Baboock v. Goodrich, 47 Cal. 488. 235; Ex parte Railroad Co., 65 Ala. 2 La Grange v. State Treasurer, 24 599; Hemphill v. Collins, 117 111. 396; Mich. 468. American Construction Co. v. Jack- * People V. MoLane, 63 Cal 616; sonville, etc. R. Co., 148 U. S. 372. § 582.] MANDAMUS. 803 speedy redress, and parties who are interfered with in such a summary way ought, if possible, to get some quicker relief, and be saved from being obliged to take the risk of any fur- ther vexation by defending against contempt proceedings in case they disregard the injunction." ^ The injunction was be- yond the power of the court granting it, and the writ was ap- plied for to set it aside. "Where the subordinate court miscon- strued the mandate of the supreme court, it was held that an appeal would lie to correct the mistake; that it was a very proper remedj'' in the particular case ; yet it was said the sub- ject might without doubt be brought before the court upon motion, and a mandamus issued to compel its execution.^ This question is quite fully discussed in the chapter on cer- tiorari (ch. 23, sec. 411 et seq.). It will be observed that the rule as stated is not one of universal application. The remedy by appeal must be an adequate remedy in order to supersede mandamus, and it must be suflSciently speedy to have that ef- fect. As we discuss later, a distinction is observed between courts and inferior tribunals with respect to the use of manda^ mus. It is said in that discussion that the language used by the supreme court of California in certain cases might be mis- leading, and it was made to appear that in that state the writ had been issued where there existed not only a right of appeal, but also a remedy by certiorari. We find later expressions of the court to the effect that the right to an appeal is an ade- quate remedy. If the expression a^ used simply applies to the particular case, there could be no charge of inconsistency. But if it was used to express a rule or doctrine applicable to all cases, evidently the court is far from being consistent.' Note. — Right of appeal. — Mandamus will not lie against a board of school directors where the party has the right of appeal to the county- superintendent. Barnett v. School Directors, 73 Iowa, 134; Marshall v. Sloan, 35 Iowa, 445. But will lie to compel a board of school directors to carry out a vote of the electors, though an appeal might lie from their action to the county superintendent. Benjamin v. School District Town- ship, 50 Iowa, 648. It is not the proper remedy for compelling a clerk to issue an execution on a judgment, the remedy by application to the court iTamar E. Co. v. Iosco Judge, 44 3 People v. Superior Court, 114 Cal. Mich. 479. 466; People v. Pratt, 38 CaL 166, 2 Perkins v. Fourniquet, 14 How. 201. 804: SPECIAL EEMEDIES. [§ 583. or judge for an order for such execution being a plain, speedy and adequate remedy. Pickett v. Owen, 66 Iowa, 485. Nor to compel the vacation of an order granting costs. Haney v. Circuit Judge (Mich.), 59 N. W. Rep. 662. Nor when its effect will be to reverse an order of a court having jurisdiction, though the order may be erroneous. State v. Laflin (Neb.), 58 N. W. Rep. 936. Nor to compel the quashing of a writ of certiorari to review proceedings of highway commissioners in laying out a private road. Gibson v. Circuit Judge, 97 Mich. 620. Nor to compel a circuit judge to suppress a deposition. Chandler v. Circuit Judge, 97 Mich. 631. J^or against a probate judge to compel the appointment of commissioners to lay off dower. Pulling v. Durfee, 97 Mich. 605. Nor to compel him to allow a contingent claim against an estate. Insurance Co. v. Durfee, 97 Mich. 613. Nor against a circuit judge to compel the vacation of an injunction restraining the owners of a majority of the capital stock of a corporation from holding a meeting for the election of directors. Chiera v. Brevoort, 97 Mich. 638. Nor to change the place of trial in ejectment, where a motion to change the place of trial has been overruled. Joaquin County v. Superior Court (Cal.), 33 Pac. Rep. 483. Though when the statute directs a change on affidavit of prej- udice of the judge and provides that he has no further jurisdiction, if the judge refuses to change the place of trial, the writ will lie on the ground that appeal is an inadequate remedy and the duty of the judge in such cases is purely ministerial. State v. MoCracken, 1 Mo. App. 233. Nor to compel a probate court to admit a will to probate, where refusal to so admit it is solely upon the ground that the testator was a non-resident. Preston v. Fidelity Trust & Safety Vault Co. (Ky.), 22 S. W. Rep. 318. Nor to compel such a court to vacate an order admitting a will to probate. Corby V. Probate Judge (Mich.), 55 N. W. Rep. 386. Nor to review the action of a dis- trict judge in discharging upon habeas corpus one held under state process to answer for acts done pursuant to a fedei-al law. Commonwealth v. Paul, 148 U. S. 107. But when a federal court has unlawfully taken juris- diction of a prosecution commenced in a state court against a federal revenue ofiBcer, the supreme court of the United States will award the writ, directing the judge of the lower court to remand the same. Com- monwealth V. Paul, 148 IT. S. 107. Nor to compel a justice who has erro- neously dismissed an action to proceed to try the same. Nevada Central K. Co. V. District Court (Nev.), 33 Pac. Rep. 673. See also State v. Lichtenberg, 4 Wash. St. 653; State v. Goodrich, 87 Tex. 401. Nor to compel a county board to credit and allow items, upon settlement of a county treasurer's account, where the statute gives a right of appeal. State v. Supervisors, 39 Wis. 79. Sec. 583. Remedy by proceedings in quo warranto pre- cludes mandamus. — If the relief demanded can be granted by- information in the nature of quo warranto, this will be sufficient to deny the party the remedy by mandamus} 1 People V. Supervisors, 13 Barb. 217; v. Colson, 1 Neb. 173; State v. Eod- Bonner v. State, 7 Ga. 473; Anderson man, 43 Mo. 350. §§ SSi, 585.J MANDAMUS. 805 Sec. 584 Indictment — Party subject to, does not super- sede mandamus.— Though the person maybe subject to an indictment and criminal prosecution for failure to perform the required act, yet the existence of such remedy will not have the effect to supersede the remedy by mandamus. Criminal prosecution does not have the effect to compel the performance of the required act, and therefore is not an adequate remedy.' Sec. 585. The writ does not lie to compel either useless or unlawful acts. — It is a maxim of our legal authors as well as a dictate of commpn sense that the law will not itself at- tempt to do an act which would be vain, nor to enforce one to do a thing which would be vain and fruitless.' Hence, where it is sought by m,am,damus to compel the performance of acts, when the proceeding is void by reason of the want of the giv- ing of the proper notice within the time required by law, the writ will be refused, because the proceedings can serve no use- ful purpose.' Where relator applied for the writ to compel a state board of medical examiners to grant to him a license to practice medicine, and it being made to appear aflBrmatively, from the journals of the legislature, that the act creating said board was not read section by section in the senate on final passage, as required by the constitution, the writ was denied. The act creating the board being void, the board was without authority in the matter.* So also where the party otherwise was entitled to the writ to compel the placing of his name upon an official ballot, the w^rit was denied solely upon the ground that there was not in law a vacancy in the office to which he sought to be elected.^ So the writ will be withheld where it is souffht to command that to be done which it is not within the power of the person of whom the act is required, to do. If he has put it out of his power to do his duty he may be liable in damages to one prejudiced by his act, but mandamus will not lie. Hence it will not lie to compel a treasurer to pay a 1 Fremont v. Crippen, 10 Cal. 211; ed.), 348: Trustees, etc. v. Nicoll, 3 People V. New York, 10 Wend. 393; Johns. 598. Commonwealth v. Doylestown Super- 3 Clark v. Crane, 57 Cal. 639. visors, 16 Pa. Co. Ct. Rep. 161 (Pa. * Brown v. State Board, etc., 51 Pac. Com. PI.). Rep., 417 (Idaho). 2 Broom's Legal Maxims (6th Am. * Wells v, Monroe, 38 Atl. Rep. 987. 806 SPECIAL KEMEDIES. [§ 586. judgment when the proper funds have been otherwise diverted ; ^ nor to compel highway commissioners to complete the proceed- ings, essential to the establishment of a road, after the time limited for the completion of their proceedings has expired.^ Sec. 586. The application of the rule further illustrated. But it will lie to compel a railroad company to restore a high- way to its original condition, though it may be necessary for such company to condemn lands for such purpose not within its right of way nor within the limits of the original highway. Incident- ally it has such power of condemnation and will be compelled to exercise it, though, if such power did not exist, it could not thus be subject to compulsion.^ It will not lie, however, to compel a railroad company to transport beer into a state where such transportation is prohibited, nor will it compel the company to determine for itself whether an article of beer is intoxicating or not, and thus determine whether it is within the prohibition of the statute. Mandamus will not lie to compel the per- formance of acts involving the exercise of discretion.* 'Eov will it lie to compel a treasurer to pay money collected to a judgment creditor, while he is prohibited by an injunctional order at the suit of another party. Such creditor should apply by petition to be made a party to the injunction suit.' Nor to compel village authorities to make special assessments to pay judgments of condemnation when more than five years have elapsed after dismissal of the proceedings.^ That the duty to perform an act required hj law will, however, be compelled, notwithstanding the time specified for its performance has passed, is well illustrated by what was said in a recent case and with reference to the particular facts. The writ was ap- plied for to compel a county clerk to credit to a city a sum which commissioners, duly appointed, had determined was in excess of its proper proportion of taxes which had been paid by the taxpayers thei-eof in a previous j'^ear, and this the law 1 Rice V. Walker, 44 Iowa, 458. 152. See also People v. Hayt, 66 N. T. 2 Williams v. Commissioners, 35 606. Me. 345; Commonwealth v. Commis- < Mil. Malt Extract Co. v. ChL, E. L sioners, 6 Pick. 501. & P. R Co., 73 Iowa, 98. 5 People V. D. & C. R. Co., 58 N. Y. 5 state v. Kispert, 21 Wis. 387. « People V. Hyde Park, 117 IlL 463. § 586.] MAIIDAMUS. 807 required him. to do at the time he made the apportionment of taxes to the several towns, cities and villages in said county; but he had in this respect failed to comply with the statute. It was held that the refusal or neglect of a public oiHcer to perform his duty to the public at the time appointed could not frustrate completely the remedial purpose of the statute. That, it being stiU within the power of the clerk to perform the duty enjoined by the statute, he would be so compelled; and as the duty was a continuing one, if he was out of office, his succes- sor could be so compelled to perform it.^ There may be some question among the courts with respect to the latter proposition, viz. : that where the duty is a continu- ing one, the writ may issue to the successor in olHce. The "Wisconsin court is firm in its position that the writ may be thus directed. In an early case in that court the question was presented. Paine, J., in the opinion, speaking for the court, says : " It seems the papers laying the foundation for this ap- plication were served on the predecessor in office of the re- spondents. It may be that in such cases, in proceedings to charge a party personally with contempt, some notice or re- quest should be first served upon him, and that he ought not to be so charged upon the strength of the proceedings taken against his predecessor, of which he may in fact have had no knowl- edge. But so far as the advancement of the principal remedy is concerned, it is to be regarded as a proceeding against the officer and not against the individual ; and when proper papers have been once served upon the officer, any proceeding which they warrant may be taken against his successor, without com- mencing de novo. This rule is essential to the due administra- tion of justice, which might otherwise be baffled by the regu- lar changes in office, or defeated by resignations made for the very purpose of destroying proceedings already had." ^ This statement of the rule was approved in a subsequent case,' and was said to be in accord with the decisions of other state courts and a recent case in the United States supreme court, though it was conceded that earlier cases in the latter court were ap- parently contrary.* 1 State V. Cornwall, 73 N. W. s State v. Warner, 65 Wis. 271, 286. Eep. 63. *See People v. Collins, 19 Wend. estate v. Gates, 32 Wis. 310. 56; Maddox v. Graham, 3 Met. (Ky.) 808 SPECIAL EEJIEDIES. [§ 686. It will appear, however, from a reading of the case cited in the federal court that the position first assumed by it has not been changed in the subsequent case. It will also appear that that court assumes the very opposite of the premises assumed by the Wisconsin court. Thus it was said : " The office of a writ of mandamus is to compel the performance of a duty rest- ing upon the person to whom it is sent. That duty may have originated in one way or another. It may, as is alleged in the present case, have arisen from the acceptance of an oifice which has imposed the duty upon its incumbent. But, no mat- ter out of what facts or relations that duty has grown, the law regards, and what it seeks to enforce by a vsrit of mamdamus is, the personal obligation of the individual to whom it ad- dresses the writ. If he be an officer and the duty an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is there- fore in substance a personal action, and it rests upon the avowed and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which, by him, the relator has a clear right. Hence it is an imperative rule, that, previous to making application for a writ to command the performance of any particular act, an ex- press or distinct demand or request to perform it must have been made by the relator or prosecutor upon the defendant, and it must appear that he refused to comply with suoii de- mand either in direct terms or by conduct from which a refusal can be conclusively inferred. Thus it is the personal default of the defendant that warrants impetration of the writ, and if peremptory mandamus be awarded, the costs must fall upon the defendant. It necessarily follows from this, that, at the death or retirement from office of the original defendant, the writ must abate, in the absence of any statutory remedy to the contrary. When the personal duty exists only so long as the office is held, the court cannot compel the defendant to per- form it after his power to perform has ceased. And if a suc- 56; People V. Short, 16 Johns. 60; Pe- 604; Secretary v. McGarrahan, 9 gramv. Commissioners, 65 N. C. 114; Wall. 298; Commissioners v. Sellew, United States v. Boutwell, 17 Wall 99 U. S. 634 § 586.] MANDAMUS. 809' cessor in oflBce may be substituted, he may be mulcted in costs for the fault of his predecessor without any delinquency of his own. Besides, were a demand made upon him, he might dis- charge the duty, and render the interposition of the court un- necessary." 1 The difficulties which seem insurmountable to the very able court practically all disappear if it is held that the duty is one pertaining to the office. The question of costs would thus be met as a disbursement. The mere question of contempt is not involved, as each person is only responsible for his own con- tempt, and a successor in office would not be guilty until he had done or omitted to do that which was a contempt. In the later case referred to {Oommissioners v. Sellew, 99 U. S. 624), the court distinguishes the foregoing case from the one in hand. In the latter the question was as to the direction of the writ to a municipal board or body of officers, it being urged that the personnel of such board or body had changed, and really as constituted when the writ would be directed, they were the successors in office of the persons who constituted the board or body at the commencement of the proceedings. Thus they say : " In United States v. BoutweU it was decided that as a manda/nvus was used to compel the performance of a duty rest- ing upon the person to whom the writ is sent, if directed to a public officer, it abated on his death or retirement from the office. That principle does not, as we think, apply to this case. Thus the officer proceeded against was the secretary of the treasury of the United States, and the writ was aimed exclusively against him as a person. Here the writ is sent against the board of county commissioners, a corporation created and organized for the express purpose of performing the duty, among others, which the relator seeks to have enforced. The alternative writ was directed both to the board in its corporate capacity and to the individual members by name, but the peremptory writ was ordered against the corporation alone. As the corporation can only act through its agents, the courts will operate upon the agents through the corporation. When a copy of the writ which has been ordered is served upon the clerk of the board, it will be served upon the corporation, and be equivalent to a 1 United States v. BoutweU, 17 Wall 604 810 SPECIAL EEMEDIES. [§ 586. command that the members of the board shall do what is re- quired. If the members fail to obey, those guilty of disobe- dience may, if necessary, be punished for contempt. . . . One of the objects in creating such corporations, capable of suing and being sued and having perpetual succession, is that the very inconvenience which manifested itself in Boutwell's case may be avoided. In this way the office can be reached, and the officer compelled to do its duties, no matter what changes are made in the agents by whom the officer acts. The board is in effect the officer, and the members of the board are but the agents who perform its duties." This reasoning would apply equally as well to the case first cited. In both cases the command is enforced against those through whom alone it can be obeyed. In both cases the individuals who refuse to obey may be punished for contempt. In both cases the office can thus be reached, and the officer compelled to perform its duties, no matter what changes are made ; and it is only necessary to assume in the former that the duty is official as well as per- sonal, which is the assumption in the latter. Besides, the diffi- culties presented by the opposite view are weightier by far than those stated by the court in the Boutwell case. In the one there not only may be, but ordinarily would be, a complete denial of both right and remedy, because in most cases the pro- ceedings cannot be conducted during the official life of a person. In the other the difficulties relate to personal considerations only, which can easily be obviated, and do not seriously affect any personal right. The rule announced by the Wisconsin court is, as stated by it, in accord with authority in the respective states which have heretofore been cited. If the right in question does not abate or expire, then the right to its enforcement does not, with the death or retirement.^ The writ cannot ordinarily be directed to an agent or employee. It must be directed, as we have seen, to some one with authority to do the act required. This prin- ciple is well illustrated in the case of Sweet v. Conley, 39 Atl. Eep. (E.. I.) 336, where mandamus was applied for to compel a surveyor of highways to restore a street grade which he had changed by order of the town council, on the ground that, the 1 People V. Collins, 19 Wend. 56. § 587.] MANDAMUS. 811 council was without authority to order the change, and the surveyor had no right to comply with such order. It was held that the surveyor of highways was a mere ministerial officer of the town council, subject to their direction and control, with no authority to incur any indebtedness against the town, ex- cept perhaps in case of emergency, such as the removal of snow or other obstruction from the highways. He has no power to change the established grade of a highway, nor has he any power to change the actual grade thereof, whether this be the record grade or not, except in so far as such change may be necessary to make the same safe and convenient for travelers ; and having no power to make any such change, it necessarily follows that no duty rests upon him in this regard, and man- damus could not issue. It was said that " the mere fact that the town council had no authority to order the respondent to raise said grade, and also that the respondent had no right to comply with such order, does not give to the relator the right to redress in this form of action. On the contrary, the facts alleged would seem to show quite clearly that the relator has an adequate legal remedy for the damages sustained. . . . Moreover, it has frequently been held that this form of action will not lie to undo what ought not to have been done." These cases are unlike those where, although it is yet in the power of the party to perform, the act, if commanded to be done and if done, will be fruitless. In such cases, as well illustrated in another section, the writ will not issue. Thus, if mandamus is applied for to compel a county treasurer to make out a list of lands delinquent for taxes, and furnish it to the official county printer for publication, and by reason of delays the time for publication of the delinquent list has passed, the writ would be unavailing if issued, and hence this is sufficient reason for denial of the writ.> Sec. 587. Proceedings pending in chancery — Effect of.— Where, however, proceedings in chancery are pending, and the questions involved are of such character that the precise relief to which the party is entitled is within the power of the court and open for determination, ma/ndamms will not lie to deter- iMcCluskey et aL v. Eice, 51 Pac. Eep. (Kan.) 1101. 812 SPECIAl EEMEDIES. [§§ 688, 589. mine those questions, but they will be left to the court of chan- cery to determine.^ Yet where the decree in such suit would not settle the controversy, and would only be final as between the parties to it, and would not bar a suit of the same nature by other parties, and public duties and public works would be de- layed in their performance, such remedy in chancery would not be adequate to the extent of refusing relief by mandamus? Sec. 688. Legal remedy must be prompt. — The writ may issue even where other remedies exist if they are not suffi- ciently speedy to prevent material injury.' It lies to vacate an illegal injunction, where the party affected thereby would otherwise have to submit to serious injury or to the risk of proceedings for contempt in disregarding it.* Also to compel a town board to proceed and audit an amount allowed a land- owner for damages in laying out a highway over his land. The party has a right of action against the town on the award of the commissioners ; yet if the relator should bring his action against the town to recover on the award, he would be in na better condition than he was in respect to, his claim, and might have to proceed by moMdamus to compel the town authorities to levy a tax to pay the judgment.^ Also to correct the error of the circuit court in treating the decision of the supreme court, reversing a decree of the former for error in certain items of an accounting, as a reversal in all respects, and in admitting new testimony on questions other than the accounting, because a remedy by appeal is inadequate on account of the unavoid- able delay .^ Sec. 589. Mandamus the remedy where there is failure of positive duty without discretion.— Ordinarily, however, man- damus is the only adequate remedy where a positive duty is enjoined by law upon an officer, and where he has no discre- tion as to the manner of its performance.' 1 People V. Wiant, 48 IlL 264 «Tawas & B. C. R Co. v. Circuit ^ People T. Salomon, 45 IlL 415. Judge, 44 Mich. 479. 3 Tawas & B. G B. Co. v. Circuit « State v. Wilson et aL, 17 Wis. 687. Judge, 44 Midi. 479; State v. Wilson 6 Gaines v. Rugg, 148 U. S. 238. et aL, 17 Wis. 687. 'Benjamin v. District Township, 50 Iowa, 648. §§ 590, 591.J MANDAMUS. 813 Sbo. 590. Clear riglit of the relator must appear.— The general statement has been made that where a remedy by mamdamus is invoked there must be a clear and unquestioned legal right,! and that where a claim is disputed and its validity controverted, then the writ cannot be invoked.^ This proposi- tion is true, so far as it relates to the issuing of the peremptory writ in the first instance, but does not extend to the denial of the remedy by mandamjus in all cases where the claim or right is disputed. In proper cases the relator may apply for and obtain an alternative writ, and the ultimate right to the per- emptory writ may be determined upon the issue formed by the return to such writ by proof, though such return traverses or denies the right as alleged in such alternative writ.' The rule goes to the extent that mandamus will not issue to enforce a doubtful right; that it is incumbent upon the party to show in all cases a clear legal right.^ In other words, the writ of Tnandavius is a remedy to compel the performance of a duty required by law, where the party seeking relief has no other remedy, and the duty sought to be enforced is clear and in- disputable.' Sec. 591. Question further discussed. — It is true that where there exist controversies between parties as to their legal rights relating to the possession of property, such as the right to iave issued by a corporation certificates of stock claimed by a subscriber, it has been held by some courts that mandamus will not issue, and the ruling is placed upon the ground that such remedy cannot be resorted to unless the relator's legal right is clear and unquestionable.* The general statement is made: " That if there be doubt as to what his legal right may be, involving the necessity of litigation to settle it, mandamus must be withheld." That its principal office is not to inquire and investigate, but to command and execute. It is properly 1 People V. Hawkins, 46 N. Y. 9: ''People v. Supervisors, 36 Mioh. People V. Supervisors, 64 N. Y. 600; 377; People v. Judge, 36 Mich. 374; People V. Supervisors, 36 Mich. 377. People v. Stevens, 66 N. Y. 606; State 2 Same cases. v. Supervisors, 3 Chand. 350. 3 People V. Supervisors, 143 N. Y. s Bayard v. United States, 137 U. S. ^71; People v. Supervisors, 64 N. Y. 346. 600; Bro wnell v. Supervisors, 49 Mich. e Tovrnes v. Nichols, 73 Me. 515, 414, 814 SPECIAL EEMEDIES. [§ 591. called into requisition in cases where the la" has been settled, or in cases where questions of law or equity cannot properly or reasonably arise. It is evident that this statement is too gen- eral. There are many cases where the right is disputed, and where the ultimate right depends upon questions of law which may not have been definitely settled, where the -writ will issue. If the right be made clear by proof upon issue made raised by return to an alternative writ, and the case is one where the party is without adequate remedy, mandamus may issue. Take, for instance, a case where it is sought to compel canvassers to can- vass votes cast at an election. The return to an alternative writ traverses the allegations therein. Can it be said the remedy will be denied simply on the ground that the facts are disputed, and the party denied the right to establish those facts by proof, or that the remedy will be denied simply because cer- tain questions of law may arise that are not clearly and definitely settled ? The statement thus made of the rule by the Maine court is evidently correct, to the extent that where the duty re- quired to be performed is not plain and certain, but involves the necessity of litigation to determine the right as between dif- ferent claimants, and the person or officer upon whom the duty devolves to perform the duty has no interest, the only ques- tion being to which claimant the right belongs, m,anda7nus will not lie to compel him to decide that question. Ordinarily that question must be determined in advance by the judgment or decree of a competent court. Thus where, in answer to a peti- tion for a writ of mandamus to be issued to the secretary of state to compel him to pay to the petitioner part of an award made by the Mexican Claims Commission, the secretary set up that he could not recognize the claim of the petitioner without ignoring the conflicting claim of another person, between whom and the petitioner litigation in respect to the award was then and had for a long time been pending, it was held on demurrer that this was sufficient; that the secretary, in view of the litigation, was not bound to decide between the conflicting- claims.^ In the case cited litigation was pending. The rule evidently must be the same where conflicting claims exist though litigation has not been commenced. The right in either 1 Bayard v. United States, 137 U. S. 346. § 591.J MANDAMUS. 815 case is doubtful. Another reason is that the rights of claim- ants ought not to be concluded where there is no opportunity to be heard. If, however, there is imposed the duty to determine which of two or more conflicting claimants is entitled to the claim or right, then the writ would issue to compel the person or officer to proceed and determine that question, unless the question was pending in a court competent to decide it.^ The remedy, as we have seen, at the present day is largely in the nature of a civil action, wherein may be determined, as in other actions, disputed questions of fact and law ; the extent of the investigation and the mode of procedure being largely regulated by statute.^ , The following general principles were laid down by the New York court of appeals : First, that to entitle a relator to the writ he must, show himself legally and equitably entitled to some right properly the subject of the writ, and that it is legally demandable from the person to whom the writ must be directed ; also that such person still has it in his power to perform the duty required ; second, that whatever is required to be done by such relator as a condition precedent to the right demanded must be shown affirmatively to have been performed by him.' NOTK — Where a relator sought to compel a board of education to award to him a contract for building a school-house, it was said: "In order to en- title the relator to the relief prayed for he must show a clear legal right in himself. It is not enough to show that the board awarded the contract to Newell without sufficient warrant, or that the relator's right on compari- son was better than that of Newell, who is not a party to the proceeding." Ross V. Board of Education, 43 Ohio St. 374 The use of the expressions, " clear right of the relator must appear," and the " writ will not issue to enforce a doubtful right," is oftentimes misleading. To some extent there may be a doubt with respect to almost every alleged right, — doubtful to the extent that it may not have been established in an inde- pendent proceeding in a court of justice. Also there is a dis- 1 Graves v. Hill, 8 Pick. 46; Com- cases cited; People v. Lewis, 28 How. missioners of Highways V. People, 99 Pr. 159; People v. Commissibners, T IlL 587: People v. Wiant, 48 111. 264. Wend. 474. 2Schend v. Aid Society, 49 Wis. 3 People v. Hoyt, 66 N. Y. 606. 237; 5 Wait's Prac. (0th ed.) 575 and S16 SPECIAL BEMEDIES. [§ 591. tinction in tlie application of this principle between those cases where the peremptory writ is applied for in the first instance npon motion or order to show cause, and cases where the pro- ceeding is inaugurated by the alternative writ. In cases within the former class there is no hearing upon the merits other than so far as they are involved and made to appear by the petition and return, the return being regarded as true and beyond con- tradiction. In cases commenced by an alternative writ the petition and return form the issues, and such issues are to be tried and determined in the same manner as in ordinary civil actions. In fact, as we have seen, when private rights are sought to be enforced the proceeding is mainly a civil action. The right is determined in such a proceeding in most cases, and the rule stated more properly applies to the questions of fact and law to be established in such proceeding^ as to whether it is clearly established and not left in doubt ; and this applies not only to the right asserted by the relator, but also to the duty or act required of the respondent; not to the right as made to appear upon the petition and return at the commence- ment of the proceedings, but as such right is made to appear upon the full and final hearing of the case.^ 1 Larkin v. Harris, 36 Iowa, 93. CHAPTEE 29. MANDAMUS TO INFERIOR COURTS. Sec. 593. Nature and extent of the rem- edy — Ordinarily compels ju- dicial action, not to review it. Tiie rule which supersedes the writ where there is an ade- quate legal remedy does not apply where the purpose is to set inferior courts in motion. Jurisdiction — Courts may be compelled to assume, even where they have decided that jurisdiction did not exist. Rule in federal courts. Rule further illustrated. Rule in state courts. Rule further illustrated. 599-600. Questions preliminary to a hearing upon the merits. «01-603. Judgments — Entry of. 608. Judgments — Enforcement of. 604. Appeal — Dismissal of . Continuance — Granting or re- fusing. Supersedeas. ■607-608. Change of venue. 60D. Dismissal of causes — Vacation of orders. Setting aside service of process. Injunctions — Granting or dis- solving. 611a. Doctrine of the Michigan court. 593. 594. 595. 596. 597. 598. 605. 606. 610. -611. Sec. 611&. Other orders — Granting or va- cating. 612-616. Bill of exceptions — Compel- ling signing of. 617. Bills of exception — Chancery courts. 618. Bill of exceptions — Alteration. of by judge. 619. Bill of exceptions — Laches. 630. Bill of exceptions — Signing of, where term of office of trial judge has expired. 631. Bill of exceptions — Compelling signing of, extends to all tri- bunals upon which the duty is imposed. 633. Bill of exceptions — Signing of, cannot be compelled where prisoner has escaped. 633. Bill of exceptions — Amend- ment — Revocation of writ. 624. Attorneys — Compelling admis- sion of. 635, 636. Attorneys — Suspension and disbarment of. 636a. Attorneys — Suspension and disbarment — Notice. 637. Distric t attorney — Compelling court to recognize. 637. Attorneys — Appointment to defend non compos person. Sec. 592. Nature and extent of the remedy. — The principles and rules which are inherent in or which apply to the remedy- by mandamus are stated in the preceding chapter. It \a&j be said that the whole law relating to mandamus has there been stated. In fact, all that will be contained in this and other chapters is the application of those principles and rules to spe- cific subjects and particular acts and omissions. One of the 53 818 SPECIAL EEMEDIES. [§ 693. fundamental principles thus stated is that the remedy lies to compel inferior courts to proceed with the performance of their functions and duties in cases where there is either refusal or unnecessary delay. It is the only manner in which the sover- eign power can compel the performance of oificial duty by in- ferior magistrates and officers of the law. Without such power somewhere the affairs of the public might be brought to a stand.* The superior court, by means of this writ, cannot clothe the in- ferior court with any additional power, nor direct it as to the manner in which it shall exercise the powers it possesses It can simply compel it to act.^ Sec. 593. The rule which supersedes the writ where there is an adequate legal remedy does not apply where the pur- pose is to set interior courts in motion.— The general rule has been stated that mandarmis will not lie where the party has another adequate remedy, but this rule has no application where the purpose of the writ is to set inferior courts in motion. In such cases mandamus will be allowed irrespective of the ques- - tion whether the party has or has not another remedy. This exception does not apply where, through error of judgment, a cause has been dismissed or erroneously decided on grounds - other than that of jurisdiction.^ "While the law is thus well settled as to the power of the superior court to compel the in- ferior court to proceed, yet it is equally well settled, as stated in the preceding chapter, that there is no poAver in such court to compel the court to decide according to the dictates 'of any judgment but its own, nor to direct what judgment it shall enter,* nor to require the court to undo what it has done, on the ground that its decision was erroneous.^ Hence the writ will not be allowed to compel a judge to vacate a rule opening a judgment to enable a defendant to plead a bankrupt dis- charge, though it is urged that the order interferes with vested rights.'^ It will be observed that there is an important distinc- 1 Waldron et al. v. Lee, 5 Pick. 333. < United States v. Lawrence, 3 DalL 2 United States v. Lawrence, 3 Ball. 43; Ex parte Hoyt, 18 Pet. 390. 43; Ex parte Hoyt, 13 Pet. 365; Chase '" People v. Judges, 30 Wend. 658; T. Blackstone Canal Co., 10 Pick. 344; Elkins' t. Athearn, 3 Denio, 191. People V. Judges, 30 Wend. 658. i> Elkins v. Athearn, 2 Denio, 191. 3 People V. Judge, 1 Mich. 359. See seo. 600. §§ 594, 595.] MAl^DAMUS TO INFEEIOE COUETS. 819 tion between the writ as directed to inferior courts and where , the writ is directed to officers or bodies clothed simply with the exercise of ministerial functions. In the former, the man- date is simply to proceed within its acknowledged powers, with- out direction as to the particular judgment it shall render or the manner in which it shall proceed; while in the latter the mandate is to do some particular act or proceed in the manner directed. This distinction is important and should always be kept in mind, otherwise a party may be misled. Sec. 594. Jurisdiction — Courts maybe compelled to as- sume. — While the power to direct the inferior court to pro- ceed and exercise jurisdiction, where it refuses to act, is un- questioned, yet there is some controversy whether, where the court has acted and dismissed a proceeding for want of juris- diction, its action can be reviewed by mandamus, and, if the decision of the court be determined to have been erroneous, that the writ will then be allowed directing the court to pro- ceed and assume and exercise its jurisdiction. Some courts make the distinction that where the court entertains jurisdic- tion, then its decision cannot be controlled, but where it re- fuses to exercise jurisdiction it may be compelled. On iirst impression it would seem that, where the jurisdiction of the court is invoked by petition or other proceeding, and the court entertains the proceeding to the extent of acting upon it and determining its sufficiency or insufficiency, it has assumed ju- risdiction, and, though its determination may have been errone- ous, this is but an error of judgment; that it has exercised its judgment and discretion, which is not subject to review by mandamus, and that ordinarily such error may be corrected upon appeal or by writ of error. Where, however, such de- termination cannot be reviewed, then the writ might issue to prevent a failure of justice. Sec. 695. Eule in federal courts. — The rule is well settled in the United States supreme court that a writ of mandamus cannot be used to review a judgment of a circuit court on a plea to the jurisdiction.^ Where a circuit court on demurrer 1 Ex parte Railway Co., 103 U. S. 794; Ex parte Railway Co., 108 U. 8. 566. 820 SPECIAL EEMEDIES. [§ 595. vacated and quashed a writ of replevin for want of jurisdic- tion, it was held a final judgment, and, if otherwise within the court's jurisdiction, subject to review upon writ of error, and hence mandamus would not lie.^ Yet it was held by the same court that the power to issue the writ of mandamus to the cir- cuit court is exercised to compel the circuit court to proceed to a final judgment or decree in. a cause, in order that the su- preme court might exercise the jurisdiction of review given by law ; and where, under the forty-first section of the bankrupt act of 186Y, a trial by jury was had in the district court in a case of application for involuntary bankruptcy, and exceptions were taken in the proper form, it was held that a writ of error would lie from the circuit court, when the debt or damages claimed amount to more than $500, and, if that court declined to hear the matter and dismissed the case because it supposed it had no jurisdiction, a mandamus would lie to compel it to proceed to final judgment.^ And in another case it was said that every party has a right to a judgment of that court in a suit brought by him in one of the inferior courts of the United States, pro- vided the matter in dispute exceeds the sum or value of $2,000, and that the court in such case will issue the writ to a circuit court, in a case where the subordinate court had improperly dismissed the case, requiring the court to reinstate the case, and to try and adjudge the issues between the parties.' And in still another it was held that the order of a circuit court re- manding, for wa,nt of jurisdiction to hear it, a case removed from a state court into it, was not a final judgment, in the sense which authorizes a writ of error ; that the remedy of the party against whose will the suit has been remanded was by manda- mus to compel action, and not by writ of error.* In Ex parte Scholleiiberger, 96 U. S. 369, the question was Avhether mandamus would lie to require the judges of the cir- cuit court of the United States for the eastern district of Penn- sylvania to hear and determine certain suits brought in that lEx parte Railway Co., 108 U. S. « Railroad Co. v. Wiswall, 23 Wall. 566. 507. See also In re Pennsylvania 2 Insurance Co. v. Comstook, 16 Co., 137 U. S. 451; Ex parte Sohollen- Wall. 258. berger, 96 U. S. 639; In re Hohurst, 3 Ex parte Bradstreet, 7 Peters, 647. 150 U. S. 653. § 595.] MANDAMUS TO INFEEIOE COTTETS. 821 court in favor of the relators against a number of insurance com- panies incorporated by the laws of other states, but doing busi- ness in that state under a license granted pursuant to a statute regulating that subject. The circuit court declined to entertain jurisdiction of the causes, on the ground that the defendant companies were not at the commencement of the respective suits, or at any time, inhabitants of or found in the said district. The only question in the case was whether the defendants could be sued in the district without their consent. The statute of the state required, as a condition of doing business in the state, the filing of a written stipulation on the part of the defendants, agreeing that any legal process affecting the company served on the insurance commissioner, or the party designated by him, or the agent specified by said company to receive service of process for said company, shall have the same effect as if served personally on the company within the state, and other condi- tions. Service was had upon such an agent. The court at the outset state that it was unnecessary to inquire whether these several companies were inhabitants of the district. That the re- quirements of the law, for all the purposes of the- particular case, were satisfied, if they were found there at the commence- ment of the suits. It was stated in the language used in an- other case: "It" (a corporation) "cannot migrate, but may exercise its authority in a foreign territory upon such condi- tions as may be prescribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there, it will be presumed to have assented, and will be bound accordingly. . . . "We entertain no doubt that it made the company liable to suit where this suit was brought, in all respects as if it had been an independent corpo- ration of the same locality." The principle was stated that states pannot by their legislation confer jurisdiction upon the courts of the United States to take cognizance of a case. Thus, if the parties to a suit, both plaintiff and defendant, are in fact citizens of the same state, an agreement upon the record that they are citizens of different states will not give jurisdiction. But if the two agree that one shall move into and become a citizen of another state, in order that jurisdiction may be given, and he actually does so in good faith, the court cannot 823 SPECIAL EEMEDIES. [§§ 596, 597. refuse to entertain the suit. So, as in this case, if the legisla- ture of a state requires a foreign corporation to consent to be found within its territory for the purpose of the service of process in a suit as a condition of doing business in the state, and the corporation does so consent, the fact that it is found gives the jurisdiction, notwithstanding the finding was pro- cured by consent. The essential fact is the finding, beyond Avhich the court will not ordinarily look. . , . The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a de- fendant, and it is one which he may waive." Sec. 596. The rule in the federal court further illus- trated. — It is held by the same court that momdamus lies at the instance of a state to compel the remanding to one of its courts of a criminal prosecution there commenced, and of which the circuit court of the United States has assumed jurisdiction at the suggestion of the defendant without due proceedings for its removal.' Note. — There has been Diuoh difference of opinion among courts as to the steps necessary to perfect the removal of a cause from the state courts. In cases under section 643 the jurisdiction of the federal court attaches by notice to the state court from the clerk of the circuit court of the petition there filed. In cases under section 641 the filing of the petition in the state court is of itself notice to that court and the case in legal effect removed. Virginia v. Paul, 148 U. S. 107, 116. The rule was stated by the circuit court of appeals to be, that where a circuit or district court refuses to hear a cause for want of jurisdiction, and the question thus decided may be heard on certificate in the supreme court, it would not be in the power of the circuit court of appeals by mandamus to compel the inferior court to take jurisdiction of the cause, but that such power is vested in the supreme court whenever the remedy by appeal or writ of error on certificate is not adequate.'' Seo. 597. Rule in the state courts. — The doctrine is stated in Tapping on Mandamus, 105, that the writ issues to inferior 1 Virginia v. Paul, 148 U. S. 107. 2 United States v. Swan, 65 Fed. Eep. 647. § 598.] MANDAMUS TO INFERIOE COUETS. 823 courts to compel them to exercise jurisdiction where they have erroneously refused to do so; and the doctrine of many of the states is to the same effect, with perhaps the qualification that the order or judgment, if any, is final and beyond review.' Thus in Michigan it was held that under the common law and the constitution of that state no writ of error or other proceeding lies on behalf of the public to review a judgment of acquittal in a criminal case, but there was no rule of law to prevent the review of proceedings which have not gone to trial. That it was well settled that a decision quashing an indictment might be reviewed, and probably by writ of error. But as such a proceeding was subject to the objection of delay, mcmdamus has been regarded as the more appropriate remedy where the action of the court in quashing the indictment was prompted by a supposed want of jurisdiction.^ And in another case the writ issued to compel the police justice of a city to receive a complaint against one charged with embezzlement, where such justice had refused on the ground of the supposed want of jurisdiction.' Sec 598. The rule further illustrated. — The California court held that a writ of mandate would lie to compel the su- perior court to hear and determine a proceeding for contempt, where it refused to hear and dismissed such proceeding for sup- posed want of jurisdiction.* That court, however, holds that no appeal lies from an order dismissing a proceeding for an alleged contempt of court ;^ also that mandamus would lie where the court refused to entertain a cause on the ground of supposed want of jurisdiction, and that the question whether the court rightfully refused would be entertained and determined in such proceeding. It appeared, however, that the court merely struck the case from the calendar, refusing to proceed, but did not dismiss or otherwise dispose of the action.^ Such is the" rule in West Virginia ' and in Missouri.^ "Where a judge has erro- 1 People V. Swift, 1 Mich. 539; Tern- ^ Sanchez v. Newman, 70 Cal. 210. pie V. Superior Court, 70 Cal. 211. « Beguhl v. Swan, 39 Cal. 411; State 2 People V. Swift, 39 Mich. 529. v. Cape Girardeau Court, 78 Mo. 560. 3 Attorney-General v. Police Jus- ' Wheeling Bridge & T. E. Co. v. tice, 40 Mich. 631. Paull (W. Va.), 19 S. E. Eep. 551. * Temple v. Superior Court, 70 CaL s state v. Laughlin, 75 Mo. 358. 211. 824 SPECIAL EEMEDIES. [§ 599. neously refused to hear a case on the ground of disqualification, he may be compelled by mandamus to proceed and determine it;' and where an inferior court refuses to entertain an appeal for supposed want of jurisdiction, the appeal may be reinstated by mandamus? Yet it was held in ISTew York that where a justice determines that he is without jurisdiction, such decision disposes of the case, and mandamus will not lie to compel him to make a final order, but the question of jurisdiction must be reviewed in the ordinary way.' And the same conclusion was reached by the Kentucky court, where the inferior court re- fused to entertain proceedings for the condemnation of land on the ground that, being an orchard, the taking thereof was prohibited by statute ; ^ and by the Alabama court, which held that mandamus does not lie to compel a judge to hear and de- termine a motion which he has overruled on the ground that he has no jurisdiction to hear it.^ Sec. 599. Questions preliminary to a hearing upon the merits.— The rule is stated that where an inferior court has refused to entertain jurisdiction on a matter preliminary to a hearing on the merits, mandamus is an appropriate remedy.* I observe that it has been contended by some judges and law writers that this rule (if it be a rule) extends to embrace erro- neous construction of some question of law or of practice which is preliminary to the whole case. If it were confined to ques- tions relating to the power or jurisdiction of the court, then there is abundant authority for the position assumed. If, on the other hand, it is intended to assert that the rule embraces all cases where the court refuses to proceed to the merits, then I should very much doubt the application of any such rule. Courts often err in determining questions of law or practice upon demurrer or motion, whereby the merits of an action are 1 State V. Young (Fla.), 12 S. Rep. 6 Ex parte Hurn (Ala.), 9 S. Eep. 673; Ex parte Alabama State Bar 515. (Ala.), 8 S. Eep. 768. « Brown v. Mining Co. (Mich.), 6a 2 State V. District Court (Mont.), 34 N. W. Rep. 1000; People v. Swift, 59 Pac. Rep. 298. Mich. 529; Rex v. West Riding, 3 P. 3McBride v. Murray, 72 Hun, 894. & D. 462; Costello v. St. Louis Cir. "Wright V. Baker (Ky.), 33 S. W. Ct., 28 Mo. 259; State v. Judge, 34 Rep. 335. La. Ann. 1177. § 599.] MjUsidamus to infeeioe couets. 825- not reached, and the party has an. adequate remedy by appeal or writ of error. If w.andamus would lie, it certainly would transform that writ into a writ of error. The case cited from the Louisiana court was where, in a proceeding authorized by statute to test the election of an officer, the court quashed the proceedings on the ground that the contestants had not given the proper notice, and it was held that, if such court erred in its construction of the statute upon the question of notice, the writ would issue to compel it to reinstate the case and proceed to its determination upon the merits. The question is present whether any departure from the general rule is to be made in cases where the court has refused to pass upon the merits of a cause on account of some prelimi- nary objection upon a point of law. It may be said that a dis- tinction i» recognized, but as to what questions are embraced in the exception to the rule the courts are not agreed. The distinction is stated by Christiancy, J. (in People v. Judge, 29 Mich. 487), as follows: "If the inferior court has acted judi- cially in the determination of a question of fact — at least, if the latter be one properly arising upon the case itself, and not some collateral motion or matter (that is, if the case or pro- ceeding before it, upon the facts, raised the particular question in such shape as to give the powpr judicially thus to determine it), — then such determination, however erroneous, cannot be reviewed; nor can any order the court may have made or ac- tion it may have taken in consequence of it be disturbed or reversed or reviewed by mandcMnus, if the action or order be such as would be justified by the same decision or determina- tion when correctly made. . . . But if the case before the lower court does not, upon its facts or the evidence, legiti- mately raise the question of law or fact it has assumed to de- cide, so that the court could act judicially upon it, or so as to give the court the power judicially to make the decision it has assumed to make, then its action is not properly judicial, and no assumed determination of it, nor any order resting upon it, will preclude the remedy by mandamus, provided the case be in other respects a proper one for that species of remedy." The supreme court of Colorado, however, does not approve- the statement thus made by Judge Christiancy, but are inclined S26 SPECIAL EEMEDIES. [§ 590. to follow the statemeat made in a dissenting opinion by Justice Scott of the supreme court of Missouri {Gastello v. Circuit Court, 28 Mo. 259), in substance that " where the point involves a rule of law or rule of court, and likewise a question of fact which may go to the legal merits of the controversy, the decision is within the discretion of the court, and if erroneous cannot be controlled by mandamus. But it is otherwise if the court re- quire an act to be done or proof to be made, before proceeding to the merits, Avhich is not required by any rule of law or prac- tice or rule of the court, and which imposes unnecessary hard- ship on a party." ' Hence where a complainant, at the hearing of a demurrer to the bill in an application for an injunction, re- fused, at the request of the court, to testify as to his interest and to his good faith in making the application (the court ex- pressing a doubt as to these matters), and the court refused to continue the hearing, it was held that the court had entered upon the hearing, and his refusal to continue was a judicial de- termination of a fact which bore directly on the merits of the cause, and moMdamus would not be granted to compel the court to hear and determine the motion.^ In Castello v. Circuit Court, 59 Mo. 259, the court dismissed the petition in an election con- troversy because the contestant had not given to the contestee the notice required by statute, and the supreme court held that the objection upon which the proceeding was dismissed was purely a question of law as to a preliminary matter, and that, if the trial court misconstrued the law, relief might be adminis- istered by mandamus. The question in the case decided by the Michigan court was whether the determination of the cir- cuit court in a proceeding to compel a justice to make a return, that the justice had waived his fee for making the return, was subject to review by mandamus. It was said : " Where, in such a proceeding, the circuit judge has determined that the justice had waived the payment of the fee for making the return, his decision is conclusive and cannot be reversed on certiorari or mandamius, provided there be any facts stated by the justice having any tendency whatever to establish it; but in this case, I Union Colony v. Elliott, 5 Colo. spgople v. District Court, 51 Pac. 371; People v. District Court, 51 Pac. Eep. 510. JBep. 510. § 600.] MANDAMUS TO INFEBIOE COUETS. 827 where no fact is stated having any such tendency, the order of a court compelling a return may be vacated by mcmdmnus. That court quite recently has held that where a judgment was prematurely entered in default, and the court upon motion refused to vacate it or set it aside, the writ will issue directing the setting aside such default.^ Sec. 600. The rule further discussed. — Upon the author- ity of the Michigan court we have stated that the writ may be allowed to set inferior courts in motion, irrespective of the fact that the party may or may not have an adequate remedy at law, and, as we have seen, "the doctrine of some courts appears to be that where the jurisdiction of the court has been invoked, and upon consideration of the question it has been honestly but erroneously determined that it did not have jurisdiction, then mandamus will not lie, if there exist a remedy by appeal or writ of error. In other courts it is held that the very pur- pose of the writ is to compel courts to assume jurisdiction which they have, if they have refused for any cause, and such cases present an exception to the rule; and also that courts will be compelled, where they have capriciously refused to proceed, or where they unnecessarily delay, or where the rem- edy at law is inadequate, either in not affording speedy relief or otherwise, to proceed. In other cases a remedy by appeal or otherwise will supersede the writ. Thus, if a judge of an inferior court captiously refuses to hold court, he may be com- pelled to do so, and this rule applies equally to all officers invested with discretion.* And the question whether the party might or might not have another adequate remedy would not be considered. So it was held that a county court may be compelled by mandamus to levy a tax required by law to be levied for the payment of county bonds, where such court refuses to order such levy. "Whether the duty imposed upon the court was mandatory or judicial is not stated by the court.' 1 Reid, Murdoch & Co. v. Benzie, 73 Court, 83 Ky. 633; State v. Megowan, N. W. Eep. 891. 89 Mo. 156. 2 Warren County Court v. Daniel, ^ Shelly v. St. Charles County, 30 2 Bibb, 573 (Ky.); Hull v. Supervis- Fed. Eep. 603. ors, 19 Johns. 359; Com. v. Boone Co. 828 SPECIAL EEMEDIES. [§ 601. Sec. 601. Judgments — Eutry of .— Jlcindamvs will issue to compel an entry of juclgment on a verdict where the court has granted a new trial, not erroneoush^, but where he is Avithout authority to do so; and this does not invade the rule that the writ will not lie to compel a court or judge to retrace his steps or undo what has been done.* If the proceeding or order granting. the new trial was irregular merely, then the writ would not lie.^ It will issue, also, to compel a judge to receive the verdict of a jury and enter judgment, when such verdict is in due form and has not been set aside for appar- ent cause.' It will not issue to compel a judge to enter judg- ment upon a verdict which from affidavits or other form of proof he is satisfied was obtained by perjury on the part of an interested party;* nor to enter judgment for the full amount returned by the verdict, where the court, in the exercise of its discretion, has required a remittitur of a part thereof, or that the party submit to a new trial.^ It was first held in Cali- fornia that the writ would lie to compel the judge of a dis- trict or circuit court to enter judgment on the report of a referee.' Subsequently the contrary was held, the decision being placed on the ground that where the court refused to confirm such a report the party had a remedy by appeal.' Both conclusions may be correct. If the court refuses to con- firm or make any order in the premises, the writ would lie to compel it to act. If it has taken any action and made any order therein, then the remedy by appeal would preclude the allowance of the writ. Where a justice of the peace has dis- missed a suit for Avant of prosecution, he may be compelled by mandamus to enter a judgment against the plaintiff for the taxable costs made by the defendant and to issue execution therefor.^ Where there exists a statute which requires the justice, immediately upon receiving a verdict or rendering a decision in a cause, to enter judgment in his docket, it may not be clear that mandamus Avould lie. And where the proceed- 1 State V. Adams, 13 Mo. App. 436. 5 state v. Kincaid (Neb.), 37 N. AV. 2 Meachim v. Austin, 5 Day, 233 Rep. 613. (Conn.). 6 RusseU v. Elliott, 3 CaL 34o. SMunkers T.Watson, 9 Kan. 669; ' Ludlum v. District Court, 9 Cal. 7. Smith V. Moore, 38 Conn. 105. s state t. Engle (Ind.), 26 N. E. Rep. 4 State V. Edwards, 11 Mo. 132. 1077. §§ 602, 603.] MANDAMUS TO INFEEIOE COUETS. 829 ings in a case have reached such a. stage that there is nothing to be done but the clerical work of entering the judgment, entry thereof by the justice may be compelled by inandamus} Sec. 602. Entry of judgment continued. — The writ was refused to compel the successor of a judge to enter judgment where the trial judge had filed conclusions of law and fact and directed the attorney to prepare an interlocutory decree for the purpose of an accounting, which he had not signed. The reason for the conclusion of the court was, that until final judgment the trial court is not concluded by any of its orders and its discretion is not subject to control by mandamus? The writ will not lie to compel the entry of judgment against a defendant where it appears that at the next session of the court it will probably act in the premises.' Nor will it issue Avhere the papers, upon which the application is based to com- pel the entry of judgment, affirmatively show that service was by publication, and fail to show proof sufficient to authorize the entry of the judgment.* It was held that the provisions of section 2249 of the I^ew York Code, in effect that in summary proceedings, if sufficient cause is not shown upon the return day of the precept, . . . the justice must make a final order awarding to the petitioner the delivery of the possession of the property, were mandatory, and if sufficient cause is not shown the justice will be compelled by m,anda/mus to make the final order.' Sec. 603. Judgments — Enforcement of. — Mandamus i^ the appropriate remedy to enforce a judgment where the same cannot be enforced by execution.* Thus, where judgment has been rendered against a town or municipal corporation, either in a state or federal court, for the amount of corporate bonds, the courts will compel by mandamus, in cases where the corpo- 1 Corthell v. Mead (Colo.), 35 Pac. < State v. Hunter, 4 Wash. St. 651, Eep. 741. See also Anderson v. Pen- 30 Pac. Eep. 642. nie. 33 Cal. 266. 3 People v. Murray, 33 N. Y. Sup. 2 Broder v. Superior Court, 103 Cal. 160. 131-134, 37 Pac. Rep. 143. estate v. Beloit, 20 Wis. 79; State estate V. Hunter, 4 Wash. St. 651, v. Madison, 15 Wis. 30; Harriman v. 30 Pac. Rep. 643. Waldo County, 53 Me. 83. 830 SPECIAL EBMEDIES. [§ 603. rate authorities refuse, the levy of a tas to pay such judgments.' And where county commissioners refuse to carry into effect a judgment of the supreme court refusing to lay out and estab- lish a highway, mandamus may issue on petition of the injured party.^ "Where, however, proceedings have been taken and an order made staying execution upon a judgment, though irreg- ular, mandamus will not lie to enforce the judgment. The remedy is by motion to vacate." And where a court, whose duty it is to issue executions upon judgments (instead of a clerk of a court), refuses after an ineffectual appeal from its judg- ment to issue an execution thereon, mandamus will lie to com- pel it to do so.* Note to Sec. 603. — In Knox County v. Aspinwall, 24 How. 376, the question of the power of the federal courts to issue mandamus to compel the levy of a tax to pay the judgment of such a court was questioned. The court proceeds to- state: "Now, it is not alleged nor pretended but that, if this judgment had been obtained against the corporation in a state court, the remedy now sought could have been obtained, for it must be admitted that, according to the well-established principles and usage of the common law, the vs^rit of mandamus is a remedy to compel any person, corporation, public functionary or tribunal to perform some duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable. That this case comes com- pletely within the category is too clear for argument; for, even assuming that a general law of Indiana permits the public property of the county to be levied on and sold for the ordinary indebtedness of the county, it is clear that the bonds and coupons issued under the special provisions of this act were not left to this uncertain and insufficient remedy. The act provides a special fund for the payment of these obligations, on the faith and credit of which they were negotiated. It is especially incorporated into the con- tract that this corporation shall assess a tax for the special purpose of pay- ing the interest on these coupons. If the commissioners either neglect or refuse to perform this plain duty imposed upon them by law, the only rem- edy which the injured party can have for such refusal or neglect is the writ of mandamus. Why should not the circuit court of the United States be competent to give to suitors this only adequate remedy? By the common law the writ of mandamus is granted by the king's bench, in vir-- tue of its prerogative and supervisory power over inferior courts. The covirts of the United States cannot issue this writ by virtue of any super- iKnox County v. Aspinwall, 24 3 Ex parte French, 100 U. S. 1. How. 376; State v. Beloit, 20 Wis. 79; < State v. District, 13 Atl. Rep. 43 State V. Madison, 15 Wis. 30. (N. J.). -Harriman v. Commissioners, 53 Me. 83. § 604.] MANDAMUS TO INFEEIOE COURTS. 831 visory power at common law over inferior tribunals. They can derive it only from the constitution and laws of the United States. The jurisdic- tion of these courts is, by the constitution, extended to controversies be- tween citizens of different states. Congress has authority to make all laws which shall be necessary and proper for carrying this jurisdiction into- effect. The jurisdiction of the court to give the judgment in this case is not disputed; nor can it be denied that, by the constitution, congress has the power to make laws necessary for the carrying into effect all its judg- ments. Has it done so? By the fourteenth section of tlie judiciary act of 1789 it is enacted: 'That courts of the United States shall have power to issue writs of scire facias, habeas corpus and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles of the common law.' Now the jurisdiction is not disputed, and it. is necessary to an efiScient ex- ercise of this jurisdiction that the court have authority to compel the exercise of a ministerial duty by the corporation, which by law they are bound to perform, and by the performance of which alone the plaintiff's remedy can be effected. The fund to pay this judgment, by the face of the contract, is a special tax laid and to be collected by the defendants. They refused to perform a plain duty. There is no other writ which can afford the party a remedy, which the court is bound to afford, within its constitutional powers, except that afforded by mandainus. It is agreeable to the principles of the common law, and consequently within the category as defined by the statute." This question was further considered in the subsequent case of Riggs v. Johnson County, 6 Wall. 166, and it was there held that mandamus would lie against the county officers to levy a tax. even although prior to the application for the mandamus a state court have perpetually enjoined the same officers against making such a levj' ; the mandamus, when so issued, to be regarded as a writ necessary to the jurisdiction of the circuit court which had previously attached, and to enforce its judgment. The doctrine was applicable that the jurisdiction of a court which first attaches is exclusive; that the state court cannot enjoin proceedings in the federal court, nor can the federal courts enjoin proceedings in the state courts. Yet, independent of that rule, the writ may issue. As stated in a. later case, it is not a question which court first obtained possession of the case. See Supervisors v. Durant, 9 Wall. 415. The court had occasion to define the power of the federal courts with re- spect to this writ. They say: "When issued by a federal court, the writ of mandamus is never a prerogative writ. Outside of this district no cir- cuit court can issue it at all in the exercise of original jurisdiction. Power ' of the circuit courts in the several states to issue the writ of mandamus is confined exclusively to those cases in which it may be necessary to the ex- ercise of their jurisdiction. Express determination of this court is that it can only be issued by those courts in oases where the jurisdiction already exists, and not when it is to be acquired by means of the writ." Sec. 604. Appeal — Dismissal of. — The doctrine that where the inferior court refuses to take jurisdiction where it ought so S32 SPECIAL EEMEDIES. [§ 605. to do, or wliere, having obtained jurisdiction in a cause, it re- fuses to proceed in the due exercise thereof, mandamus will issue to compel it to proceed, applies where an appellate court has erroneously decided that an appeal has not been properly- perfected. And it is held that mandamus is the proper rem- edy where such refusal is that of a superior court.^ There are cases which apparently hold that mandamus will not lie to compel subordinate courts to reinstate an appeal once dis- missed ; that the proper remedy is by appeal or writ of error.^ This ruling may be correct where the appeal was dismissed on other grounds than that of a supposed want of jurisdiction, either in the court to entertain it, or from non-compliance with precedent conditions to the right of appeal. But where the court has jurisdiction and the appeal has been properly per- fected, then the court will be compelled to assume jurisdiction.' Where, however, the court has made an order dismissing the appeal, it is held by the California court that such order must first be annulled by certiorari before the mandate should issue to proceed to a hearing of the appeal.* This would seem, how- ever, to be an unnecessary proceeding, as the mandate itself would in effect supersede the order. On the other hand, if certiorari is the proper remedy, a decision thereon annulling the order of dismissal would of itself reinstate the appeal, and onandamus would not lie unless there was a subsequent refusal to proceed. "Where it is sought to compel the allowance of or reinstatement of an appeal by mandamus, it must afBrmjitively appear upon the face of the papers that the relator has a clear right to the appeal, and that the order or judgment is appeal- able.^ Sec. 605. Contiimance — Gr an ting or refusing. — The ques- tion of granting a continuance of a cause is one which is always I Ex parte Parker, 120 U. S. 737; 3 People v. Judge, 37 Mich. 303; McCreary v. Rogers, 35 Ark. 298; Levy v. Superior Court, 66 Cal. 293; Ware v. McDonald, 62 Ala. 81; State State v. District Court, 34 Pac. Rep. V. Allen, 93 Mo. 30; State v. Cooper, (Mont.) 398; State v. Murphy,' 41 La. 20 Fla. 547. Ann. 526; State v. Whitaker, 45 La. 2Wells V. Stockhouse, 3 Harr. (N. J.) Ann. 1299. 355; Commissioners v. Commission- ^Levy v. Superior Court, 66 Cal. ers' Pleas, 3 Binn. (Pa.) 273; State v. 293. Evans, 45 N. J. L. 295. 6 Ex parte Cutting, 94 U. S. 14; §§ 606, 607.] MANDAMUS TO INFEEIOE COITETS. 833 addressed to the judgment and discretion of the trial court, and its determination of that question for that reason is not subject to control by mandamus. In case of abuse of discre- tion the appellate court might reverse its judgment upon ap- peal or writ of error, but not otherwise.^ Sec. 606. Supersedeas. — In many of the courts mandamus lies to compel the granting of a supersedeas in a proper case, and upon compliance with the conditions prescribed by law, and also lies to compel a court to vacate a supersedeas order where the same has been granted without authority of law. "Where, however, the question of granting a supersedeas is left to the discretion of the court, or he must necessarily exercise a discretion in passing upon the question, then it would seem upon well-settled principles that such discretion will not be controlled if the party have an adequate remedy. But where its judgment is based upon an erroneous construction of the law the writ may issue. Where the party has the right, as in some states, in case of refusal to grant a supersedeas, to make appli- cation to the supreme court, then it is quite certain that man- dam,us would not be allowed.^ The reason given by the Cali- fornia court for its position that the writ lies to vacate an order improvidently granted staying proceedings is that such an order is not appealable, and hence the only remedy is by mam^ doMbus to compel the court to proceed.' It is made the duty of the court ordinarily, in allowing an appeal, to take security. The appellant, therefore, is not entitled to a supersedeas unless this is done. If the judge grant a supersedeas without exacting such security, then the prevailing party is entitled to process to carry the judgment or decree into effect, and upon refusal may compel the court to do so.* Sec. 607. Change of venue. — The law permits a change of venue, in most if not all of the states, where the action is corn- State v. Burthe, 89 La. Ann. 841; 25; Ex parte Walker, 25 Ala. 577; State V. Cooper, 20 Fla. 547. Rhodes v. Craig, 21 Gal. 419. 1 Palmer v. Jones, 49 Iowa, 405; s Rhodes v. Craig, 21 CaL 419. Locket V. Child, 11 Ala. 640; Ex parte * Stafford v. Union Bank, 17 How. Jones, 66 Ala. 202 ; People v. Superior 275 ; Staflord v. New Orleans, 17 Ho w. 'Court, 19 "Wend. 701. 283. 2 Culver V. Superior Court, 57 Mich. 53 834 SPECIAL EEMEDIES. [§ 608. menced in the ^^rong county, and also where, on account of the prejudice of the people, it is made to appear that the party may not have a fair and impartial trial. In some of the western states there is also provision for removal where an affidavit is filed to the effect that, on account of the prejudice of the judge, a fair and impartial trial cannot be had. In the first and last cases mentioned the statute is mandatory. The only discretion left to the court is to determine in the first case that the county where the action is brought is not the county where the defend- ants reside, or, in case of a local action, that it is not the county where the property, the subject of the action, is situated, and in the latter, whether the affidavit conforms in terms to the re- quirements of the statute. The general doctrine, however, is, with a possible exception, that in none of the cases will man- damus lie to compel the judge, where he refuses, to make the order changing the place of trial. This doctrine, with respect to the two former class of cases mentioned, is placed sometimes upon the additional ground that the aggrieved party has a right of appeal.' With respect to the last-mentioned class, the court can exercise no discretion if the affidavit conforms to the re- quirements of the statute ; but it is held in some cases that the order refusing to change the place of trial is appealable, and this precludes allowance of the writ,^ while in others it is held that the duty on the part of the judge is purely ministerial, and therefore the writ will issue.^ The California court is not in accord with the Missouri court upon the question stated. They hold that the justice can be compelled to act in case of refusal, but his erroneous action cannot be corrected by mandamus, but only by appeal.* Sec. 608. Change of venue continued. — Where an order Avas made for a change of venue in a criminal case while the accused was absent from the court room, it was held that man- damus would lie to vacate the order.* This seems to be extend- 1 People V. Roberts, 100 IlL 458; Indiana County, 33 W. N. C. (Pa.) 153 ^ Joaquin County v. Superior Court Smith v. Judge, 17 Cal. 547. (Cal.), 88 Pac. Rep. 482; Ex parte 2 state v. Washburn, 33 Wis. 99. Banks, 38 Ala. 38; State v. Lafayette 3 state v. McCracken, 1 Mo. 233. County Court, 41 Mo. 333; Newlin v. •! People y. Hubbard, 23 Cal. 34 6 Ex parte Bryan, 44 Ala. 403. § 609.] MANDAMrS TO INFEEIOE COtlETS. 835 ing the functions of the remedy by mandamus to the utmost limit. If a judge should commit such an error the accused has a proper and adequate remedy by writ of error. It is held in Illinois and Alabama, however, that mandamus will lie to com- pel a county judge who is interested in a controversy in his court to transmit the case to the circuit court as required by ]aw;i while in Ohio the contrary is held where a judge was disqualified under section 550 of the Eevised Statutes of that state on the ground that the party had a remedy by appeal.- "With respect to justices' courts it was held in Missouri that under the provisions of section 2953 of the statute, which pro- vides that, on the filing of a proper aflidavit in due time for a change of venue in any civil cause before a justice of the peace, the justice must allow the change and note the fact on his docket, that on filing the affidavit the duty of the justice was purely ministerial, and ?nandamus was the proper remedy to compel him to act.' It would seem that, where the statute is mandatory upon the doing of a prescribed act, the writ ought to lie on the ground of an abuse of discretion, if discretion is in- volved, and to avoid unnecessary delay. An appeal would not in such case a£ford an adequate remedy. Seo. 609. Dismissal of causes — Yacation of orders. — One of the rules which has heretofore been stated as governing the remedy by mandamus, as applied to inferior courts, is that it compels action, but does not review or correct that which has been done. Hence the writ will not issue to compel the court or judge to vacate an order once made, unless it be where the court has erroneously refused to proceed where it had jurisdic- tion in fact. Hence it will not lie to compel the court to va- cate an order staying proceedings where such order was within its acknowledged powers ; * nor an order granting a new trial ; * nor an order dismissing an action.' The contrary was held by the Michigan court in a case where a chancery decree was set 1 Graham v. People, 111 111. 253; 5 People v. Judge, 41 Mich. 5. State V. Castleberry, 33 Ala. 85. 6Ex parte Johnson, 35 Ark. 614; 2 State V. Wolfe, 3 Ohio Dec. 345 People v. Weston, 38 Cal. 639; Heil- (Cir. Ct.). bron v. Superior Court, 73 Cal. 96; 3 State V. Clayton, 34 Mo. 563. Davis v. Commissioners, 63 Me. 396; estate V. Taylor, 19 Wis. 566. Ex parte Brown, 116 U. S. 401. S36 SPECIAL REMEDIES. [§ 610. aside on a mere motion which was unauthorized.^ Nor to com- ;j3el a judge to vacate an order made in a chancery suit entered 'by consent;^ nor to vacate an order ordering a special election under a local-option law ; ^ nor an order made by the circuit court of the United States to incumbents in office to turn over the property in their possession to their successors;* nor an order made suspending from practice an attorney at law,' though it seems that, if the court should make such an order in proceedings for contempt, such punishment being wholly unauthorized, OTawf^am-Ms would lie to restore the attorney;* nor to compel a probate judge to vacate an order admitting a will to probate.' In some cases, as we have seen ante, the writ may issue to reinstate a case that has been improperly stricken from the docket.* But after a court has once decided a cause, it cannot be compelled by mandcmius to reinstate the cause or iTcverse its decision.' In Alabama the writ was allowed to re- instate an attachment which was ancillary to an action at law and which the court had improperly dismissed." Sec. 610. Setting aside service of process. — In Michigan it is distinctly held that the writ will issue to set aside the service of a summons illegally made on one while attending court as a witness.^' It must be true that the aggrieved party has a complete remedy by motion to the court to set aside such a «ervice, and a remedy by appeal if the motion is denied. Such a remedy is equally as effective as that by mandamus. So the same court held that the writ would issue to vacate an order of the court overruling a motion for the relator's discharge from arrest, where he was arrested before he could leave the place where taken on a prior arrest, and after his discharge from such first arrest. ^^ 'York V. Judge, 57 Mich. 431. 8 gee also Ex parte State, 51 Ala. -2 Pishell V. Judge, 97 Jlioh. 607. 817. 3 State V. Morris, 86 Tex. 336, 34 S. 9 Hempstead Co. v. Grave, 44 Ark. W. Rep 393. 317; Hemphill v. Collins, 117 111. 396; nn re Parsons, 150 IT. S. 150. Sankey v. Levy, 69 Cal. 344 6 Underwood v. Judge, 97 Mich. 636. w Boraim v. De Costa, 4 Ala. 393. •«Ex parte Eobinson, 19 Wall. 505. » Mitchell v. Judge, 53 Mich. 541. ' Corby v. Judge (Mich.), 55 N. W. 12 Watson v. Judge, 40 Mich. 739. Eep. 386. §§ 611, 611«.J MANDAMUS TO mFEEIOE COtTETS. 83TT Seo. 611. Injunctions — Granting or dissolving.— What- ever may have been the rule established hy some courts with^ respect to controlling the judgment and discretion of inferior courts in the matter of granting or dissolving injunctions, it is now clearly settled by an almost universal current of author- ity that the writ will not issue in such cases. There is hardly a question arising in equity that is so much addressed to the discretion of a judge as that relating to the granting or dissolv- ing of injunctions. Some courts have made the exception to the rule that, where it appears upon its face that the bill is- devoid of substance and was insufficient to support the ap- plication, the writ might issue.^ Yet the Michigan court in another case held that mandamus would not lie to compel ai circuit court to proceed to trial, when a bill has been filed and injunction allowed to restrain it; that the sufficiency of the bill could not be reviewed collaterally, whether the bill was in the same or another court.^ And in a later case the same court held that a mandamus to disturb action by a circuit judge in equity can only issue upon some exigency requiring prompt action to prevent mischief ; and so long as the law is open, the court is not called upon to use its extraordinary powers to. assist private redress of supposed wrongs.' Sec. 611a. Doctrine of tlie Micliigan court, — -Yet in Michi- gan the remedy has quite frequently been used to compel the vacation of a preliminary in junctional order; and where the averments of the bill, conceding them to be true, are insufficient to warrant the issuance of an injunction, mandamus will in some cases issue to vacate one that has been issued. Thus,, where a board of supervisors were enjoined from purchasing a site for county buildings and issuing bonds in payment there- for, pursuant to a vote of the electors, and the averments of the bill, as held by the superior court, were insufficient to war- rant the issuance of the injunction, it was held that the subor- dinate court should be ordered to vacate it. It was said : " We think that important public improvements should not be com- 1 Van Norman v. Judge, 45 Mich. 2 People v. Judge, 40 Mich. 63. 304: Merced Mining Co. v. Fremont, s Detroit, etc. R. Co. v. Judge, 61 7 Cat 131; Ortman v. Mining Co., 9 Mich. 33. Cal. 28. ygS SPECIAL EEMEDIES. [§ 611a. pelled to await the law's delay consequent upon the final de- termination of a long chancery suit, and that the writ of man- damus is proper under the circumstances to obtain a speedy determination." ^ They assert that the fact that there is a spe- cific remedy in equity does not necessarily oust the jurisdiction of a common-law court, but only appeals to its discretion, which may be exercised where the circumstances call for prompt in- terference by the courts. Mandamus therefore will lie to va- cate an illegal injunction where the party affected thereby would otherwise have to submit to serious injury or the risk of proceedings for contempt in disregarding it.^ That the writ will issue to vacate an injunction where the order is one be- yond the jurisdiction of the court was early decided in that state. "Where a receiver of a corporation was appointed ex jMrte to manage the business of a corporation, and an injunc- tion granted depriving the directors of control, which the superior court held was in excess of the power of the court, man- damus issued to compel the respondent to vacate the order ap- pointing the receiver and to dissolve the injunction.' The writ was also issued in that state to dissolve an injunction which was granted against the pastor of a church to restrain the pas- tor from admitting to membership any person without the con- sent of the majority of the church council, and from doing certain other acts, upon the ground that the parties must first exhaust the remedies afforded by the ecclesiastical body before the courts will consider the questions involved ; * and was is- sued in another case to review the action of a circuit judge in granting a preliminary injunction and refusing to dissolve the same, where the return disclosed the question in dispute to be one of law merely.' The same court in a recent case declared that, if it appears that the case was within the jurisdiction and power of the cir- cuit judge, the court will not review his decision in granting an injunction or in refusing to dissolve it.* It would appear, 1 Board of Supervisors v. Judges, ^Buettner v. Circuit Judge, 100 106 Mich. 166. Mich. 179. -Tawas, etc. R. Co. v. Iosco, 44 sjonia Ins. Co. v. Circuit Judge, Mich. 479. 100 Mich. 606. 3 People V. Judge, 31 Mich. 456. " Chiera v. Brevoort, 97 Mich. 638. § 611a.J MANDAMUS TO INFEEIOE COUETS. 839 therefore, that in some of the cases referred to in that court the decision of the court was not error merelj"-, but in excess of its jurisdiction; while it will be conceded that, if the court had granted the motion to dissolve, it could not be said that its order was void for want of jurisdiction, but having refused to dissolve, its erroneous exercise of judgment was in excess of its powers. This court has held that momdamus is not the proper remedy by which to review an appealable order in a chancery suit.' Momdamus was held to lie in the following cases : To dissolve a preliminary injunction restraining a rail- road company from running over so much its road as was built by the complainants under a contract with a tram railway company, to whose assets the defendant had succeeded by pur- chase, except on condition of carrying lumber and logs for complainants on the terms agreed upon in said contract.^ Also to dissolve an injunction enjoining the payment of dividends on corporate stock held by the wife of defendant, previously assigned to her by him, and standing in her name on the books of the company, the complainant's claim being based upon an attachment upon such stock. The court held a bill in equity would not lie to protect the lien of such an attachment.' Also to dissolve an injunction restraining proceedings upon a judg- ment rendered by another court of competent jurisdiction and <;o-ordinate authority, issued in a suit instituted for the pur- pose of canceling the judgment.* Also to dissolve an injunc- tion issued from the Wayne circuit court, restraining the relator from trying an attachment suit pending in the superior court of Detroit, in favor of one of the relator's creditors, and com- menced prior to the relator's assignment of its property for the benefit of creditors.^ Also to dissolve an injunction which re- strains the relator from making a contract for city lighting under an accepted bid of an electric light company." The court in its opinion stated what might be termed a rule governing the action of the court with respect to the issue of 1 Thomas et al. v. Gartner et aL, 97 * McClean v. Circuit Judge, 53 Mich. Mich. 608. 357. 2 Railroad Co. v. Circuit Judge, 45 ^ iron Works v. Circuit Judge, 59 Mich. 304. Mich. 373. 3 Van Norman v. Circuit Judge, 44 « Detroit v. Circuit Judge, 79 Mich, Mich. 479. 384. SiO SPECIAL KEMEDIES. [§ 611a. mandamus to dissolve an injunction. They say: ""Whether mandamus is the proper remedy to remove an injunction which ought not to stand depends entirely on the conditions of its issue. Usually, if the mischief can as Trell be settled by appeal, that is the proper resort. But we have held on several occa- sions that where a preliminary injunction operates in such a way as to do violence to vested rights and interests and to pre- vent the proper authorities from exercising their legal func- tions, it is such an invasion of right as entitles the aggrieved parties to a prompt redress, which, as decided in those cases, is better for the public peace and order than encouraging an open disregard of the legal tribunals where it can be avoided, when the action of an inferior court within its jurisdiction is to be reached by other appellate process ; yet where the ac- tion complained of is beyond any discretionary power, or is an abuse of. discretion which cannot be justified on legal princi- ples, this court 'will and may interfere by mandamus, if there is urgency or pressing occasion to do so. In determining that the writ should issue in the matter they had under considera- tion, and that it presented conditions which brought it within the rule, it was stated further that it is one of the necessary and fundamental rules of law that the judicial power cannot interfere with the legitimate discretion of any other depart- ment of government. So long as they do no illegal act, and are doing business within the range of the powers committed to their exercise, no outside authority can intermeddle ^ith them; and unless the action complained of in the court below was beyond the legal discretion of the city, the circuit court had no jurisdiction to grant the injunction which was allowed. The decisions of the Michigan court upon this important question have been quoted at great length for the reason that it seemed necessary in order to acquire a knowledge of the doctrine prevailing in that state, and the reasons upon which such doctrine is based ; and the conclusion which the writer ex- tracts from such decisions is that, in cases where the supreme court are of the opinion that an injunction has been improvi- dently granted and seriously affects important rights and in- terests, mandamus will issue to perform the office of a writ of error. It cannot be seriously questioned but that the court in § 611S.] MANDAMUS TO INFEEIOE COUBTS. 8il most of the cases referred to had jurisdiction of the subject- matter and the parties. As stated by the supreme court of the United States : ' " When application was made for the allow- ance of the injunction, it became the duty of the court to de- termine whether the case was one in which the power could be exercised. The question arose in the regular progress of the cause, and if decided wrong an error was committed, which like other errors may be corrected on appeal after final decree below." Again it was stated by the same court, speaking with reference to the decision of a subordinate court : "Of this decision the petitioners complain and seek to have reversed. This we cannot do by mcmdamus. Under that form of pro- ceeding we may compel an inferior court to decide upon a matter within its jurisdiction and pending before it for judicial determination, but we cannot control its decision. Neither can we in that way compel the inferior court to reverse a de- cision w^hich it has made in the exercise of its legitimate juris- diction. That is the office of a writ of error or an appeal in cases to which such proceeding applies, but not of a writ of 7)iamdamus." ^ Some of the cases which support the doctrine of the text are cited in the foot-note.' The Louisiana court is authority, how- ever, for an exception to the rule, in substance that, where there is danger that the administration of justice may suffer by delay, Trmndamus lies to compel a district judge to grant an injunc- tion in limine, even though a party has other but slower means of relief, leaving the matter to the discretion of the court.* But this follows, as I understand, from a provision of the code (arts. 830, 831). The courts will not by mcmdamus compel that to be done which, in effect would be in violation of the terms of an injunction, even by those who are not parties to the injunction proceedings.^ Sec. 6115. Other orders — Granting or vacating. — "We have seen that the writ is sometimes used to direct the restoration 1 Ex parte Schwab, 98 U. S. 240. 240; State v. Engleman, 80 Mo. 551; 2 Ex parte Flippin, 94 U. S. 348. State v. Kispart, 21 Wis. 387. 3 Ex parte City Council of Mont- * State v. Lazarus, 86 La. Ann. 578. gomery, 24 Ala. 98; State v. Judge, 5 Ex parte Fleming, 4 Hill, 581; 28 La. Ann. 905; McMillan v. Smith, Ohio, etc. R. Co. v. Wyandotte, 7 36 Ark. 613 ; Ex parte Schwab, 98 U. S. Ohio St. 278. 812 SPECIAL EEIIEDIES. [§ 6115. of cases where the appeal has been improperly dismissed upon the ground of a supposed want of jurisdiction. It is also the rule and practice in some jurisdictions to make use of the writ to vacate orders which have been improperly granted, dismiss- ing cases where the ground of dismissal was other than that of supposed want of jurisdiction; and this rule and practice may be supported by the general rule which authorizes the writ to compel courts to proceed where they have jurisdiction. The writ was issued to compel the vacation of an order dismissing a writ of replevin, where the ground for such dismissal was that the officer failed to certify the copy of the writ served upon the defendant. It was said that the proper practice was to allow an alias writ to issue to complete the service.' It was also issued when, under a statute providing for change of venue, application had been made for such change, and while pending an order for alimony was made therein by the court in which the proceedings were instituted to vacate such order.^ "Where a statute provided that every suit in chancery shall be com- menced in the circuit court for the county in which the prop- erty in dispute is situated, if the subject-matter is local and a suit of such character was instituted in another county, a plea having been entered to the jurisdiction which was overruled, mandamus issued to compel the vacation of the order overrul- ing such plea.' It seems to the writer that the proper remedy in such case would have been by the writ of prohibition, to re- strain the court from proceeding. The effect of the order in the mandamtis proceeding is to compel the judge to reverse his decision of a question of law, which quite generally is held not within the purpose of mandamus. "Where a statute provided that, upon the return of an execu- tion issued against the property or effects of a limited partner- ship association, an execution may issue against any of the members of the association to the extent of the portions of the subscriptions respectively in the capital of the association not then paid up, and the court denied a motion for the issuance of an execution against the members of a limited partnership as- sociation on the ground that such statute was void, mandamus 1 Anderson v. Lane, 105 Mich. 89. ^ Chapin et al. v. Dodds, 104 Mich. 2 Wood V. Adsit, 105 Mich. 378. 233. § 6115.] MANDAMUS TO INFERIOE COUETS. 843 issued to require the vacation of such order. The court having jurisdiction because the act was valid in fact, the decision is within acknowledged principles.^ An order vacating an attach- ment brought under the log-lien act, on the ground there was no proper service of the writ upon the principal defendant or upon the log owners or those in custody of the logs, for the reason that no copy of the inventory was served,, was reviewed by the superior court upon mandamus and an order made re- instating the proceedings.- A creditor of a corporation whose debt has not been merged in a judgment has no right to inter- vene and answer and file a cross-bill resisting the petition of a judgment creditor of the corporation filed under provisions of the Michigan statute, and an order allowing such a creditor to so intervene will be directed to be vacated by mandamus? The writ has also been issued to review the decision of a circuit judge quashing proceedings for contempt commenced before his predecessor in office, on the ground of a want of jurisdic- tion to try the question of fact involved.* The act having been completed prohibition would not lie ; hence it may be that man- damus was the only remedy unless there was a right of appeal. A judge of probate has no power to set aside his own adjudica- tions and grant rehearings; hence, where such an oflicer makes an order setting aside a former order disallowing a claim and granting a rehearing, mandamus will issue to direct the vacat- ing of such order last granted by him.* The writ was issued in another case to set aside a default judgment in an action at law. Service was had or attempted upon a corporation. The return merely recited that service was made upon a person named as agent, but did not state how it was made. The court denied a motion to set aside the judgment and also the default;* and in still another to vacate a judgment by default, where the judgment was prematurely entered, being entered the day that security was filed.'' 1 Rouse et aL v. Donovan, 104 N. Y. < Montgomery v. Circuit Judge, 100 234_ Mich. 436. 2 McGuire v. Circuit Judge, 101 » Hitchcock v. Taylor, 99 Mich. 138. Mich. 375. " People, M. B. S. v. Frazer, 97 Mich. 3 Riverside Iron Works v. Hosmer, 637. 100 Mich. 124. ' Rankans v. Padgham, 97 Mich. 623. Sa SPECIAL EEMEDIES. [§§ 612, 613. Sec. 612. Bill of exceptions — Compelling signing of.— JTandamus is the appropriate remedy to enforce the settlement and signing of a bill of exceptions where the trial judge re- fuses. Courts of last resort are given by law a general superin- tendence over inferior courts, and are clothed with the power of enforcing performance of duties which have been conferred upon inferior courts. It being made the duty of trial judges to settle bills of exceptions and to sign them when settled, for a refusal to perform this duty the superior court may compel performance by mandamus, there being no other adequate rem. edj} The rule stated is of general application. The proper practice, however, is to first obtain an alternative writ to the trial judge commanding him to settle and sign a bill according to the facts, without any specific direction as to what are the facts to be stated therein.^ Sec. 613. Bill of exceptions — Compelling signing of, con- tinued. — The mere act of signing the bill is ministerial in its nature, and the writ may properly direct the performance of that duty. Hence, where upon the application for an alternative writ it appears that the bill required to be signed has been pre- pared and presented to the judge, that it is a true bill, accord- ing to the facts, and that the judge without sufficient reason refuses to sign it, it is proper that the alternative writ should direct that he sign the particular bill or show cause. Then, if upon the return no cause is shown against the applicatign, or that it is not true according to the facts, the peremptory writ may issue to compel the signing of the particular bill.^ The ruling in the Wisconsin case cited (State v. dough, 69 Wis. 369) may not sanction this practice. If, upon the return of such alternative writ, it is contended that the bill as prepared and presented does not contain a true statement of the facts, or all of the material facts, then the peremptory writ can go no fur- iChateaugay O. & I. Cos., Peti- 2 State v. Clough, 60 Wis. 369. tioner, 128 U. S. 344; Sikes v. Ean- 3 State v. Hawes, 43 Ohio St. 16; som, 6 Jolins. 379; People v. Judge, Douglas v. Loomis, Judge, 5 W. Va. 41 Mich. 726; State v. Hawes, 43 543; Springer v. Peterson, 1 Blackf. Ohio St. 16; State v. McDonald, 30 188; People v. Pearson, 3 Scam. 189 Minn. 98; Hawes v. People, 139 111. (111.); State v. Hull, 3 Cold. 355. 133. §§ 614, 615.] MANDAMUS TO INFEEIOE CO0ETS. 845 ther than to direct that the judge shall settle and sign a bill according to the facts. His discretion in determining what are the facts cannot be controlled by w.cmdamus, and his de- termination as to what are the facts is conclusive.^ The Cali- fornia court is authority that in such case the direction should be to settle the bill first and then sign it.^ If, however, it ap- pear from the answer that the judge is willing to sign a true bill, but denies that the bill presented is true, the peremptory writ must be refused.' Sec. 614. Bill of exceptions — Compelling signing of, con- tinued. — For the purpose of settling a bill of exceptions the judge before whom the case is tried is, to determine finally what occurred at the trial. The law makes him, and properly so, the judge of the propriety and accuracy of the act he is called upon to solemnly yeriiy, so that it should properly become a part of the record in the cause, and it is not for other par- ties to determine the truth. His knowledge and recollection must finally determine what occurred at the trial.* Hence a circuit judge will not be compelled by mcmdamu-i to insert in a bill of exceptions instructions which it is claimed he gave to the jury, when he returns that he has already settled the bill of exceptions truly and according to his knowledge and recol- lection of the facts.^ Sec 615. Bill of exceptions — Compelling signing of, con- tinned — The return or answer to the alternative writ. — Where the alternative writ issues upon the ground that the judge refuses to sign a bill of exceptions, it is incumbent upon the judge in his answer to make known the cause that in his opinion justifies such a refusal.^ Such grounds should be state^d 1 State V. Hawes, 43 Ohio St. 16; ^State v. Noggle, 13 Wis. 380; Peo- State V. Clough, 69 Wis. 369; People pie v. Pearson, 2 Scani. 189; Ex parte V. Pearson, 3 Scam. 189; People v. Bradstreet, 4 Peters, 102. Lee, 14 Cal. 512; State v. Babcook, 51 » State v. Noggle, 13 Wis. 880. Vt. 570; Delavan v. Boardman, 5 « state v. Hawes, 43 Ohio St. 27; Wend. 132. Sikes v. Eansom, 6 Johns. 279 ; State 2 People V. Lee, 14 Cal. 512. See v. Brockwell, 16 Lea, 683 (Tenn.); also Page v. Clopton, 30 Grat. 415. Reichenbach v. Ruddach, 121 Pa. 3 State V. Todd, 4 Ohio, 351 ; Creager St. 18. V. Meeker, 22 Ohio St. 207. 84C SPECIAL EEMEDIES. [§ 616. with particularity. The answer must not be evasive. The nature of the defense must clearly appear, either by denying the allegations of the writ or stating facts sufficient to defeat the relator's right. It should contain positive allegations of fact, and not mere inferences from facts.' An answer merely stating that the bill is not a true bill and does not state the exceptions in manner or form as they were taken upon the case, without stating wherein they were not correct, will be held bad for uncertainty.^ "Where exception is taken to a refusal to charge that there is no evidence which tends to prove a ques- tion involved, the party desiring to have this ruling reviewed may, in case of refusal on the part of the trial judge, resort to mandamus to compel the judge to incorporate into the bill of exceptions all the evidence bearing upon that question.' Ordi- narily the court will not inquire into the reasons which induced the trial judge to sign a bill after the statutory period had ex- pired, but will presume they were sufficient.* It will, as we have seen, inquire into the reasons which induced him to refuse to sign the bill, to determine whether the relator's right has been waived, or whether the application was in fact made in time.^ JS'or will the question of mistake, surprise or excusable neglect in not presenting the bill within the statutory period be considered on application for mandamiis to compel the judge to settle the bill. Even assuming that the trial judge has power to grant such relief, whether it shall do so or not is matter resting in the discretion of the court, which is not subject to control by mandamus, being subject to review on appeal in case of error or an abuse of discretion ; and this is true thouo-h the court upon such refusal certifies that the bill was not served ' in time by reason of the mistake, inadvertence and excusable neglect of the counsel for the moving party.* Sec 616. Bills of exception— Compelling signing of, by r^f- erees.— Mandamus lies to compel a referee, as well as a judge, 1 Com. V. Commissioners, 37 Pa. St. i People v. Lee, 14 Cal. 510. 377; State v. Hawes, 43 Ohio St. 37. 5 willard v. Dillerd, 86 Cal. 154. 2Reiohenbaoh v. Ruddaoh, 121 Pa. "gtonesifer v. Armstrong, 86 CaL St. 18. 594 3 Crane v. Judge, 34 Mich. 513. See Ex parte Crane, 5 Peters, 190. §§ 617-619.] MANDAMUS TO INFEEIOE COUETS. 8i7 to settle correctly a case and exceptions, where he unjustly or "without suflBcient reason refuses.^ Sec. 617. Bills of exception — Chancery courts. — It was early decided that bills of exceptions were unknown in chan- cery practice as it then existed.^ To what extent the practice prevails in the different states must be determined by refer- ence to the practice acts in each. The practice of review upon exceptions prevails in most of the code states. In such states the remedy by appeal extends equally to actions at law and suits in equity, and the same method of review upon bill of exceptions applies to each. Sec. 618. Bills of exception — Alteration of, Iby judge. — After a bill of exceptions has been duly signed and filed, the authority of the judge over the same has ceased to the extent that he cannot, of his mere volition, alter or make changes in the same. Upon proper proceedings being had, evidently he may make changes to correspond with the facts while they remain of record in his court. Mandamus will not lie, how- ever, to compel him to restore a bill, altered by him at his own volition, to its original condition. The reason given is that such alteration is the act of the judge in his individual capacity merely, and is of no force, and that mandamus does not lie against a private citizen.' It would seem that a party should have some remedy, and the right to have the appeal deter- mined upon the bill as settled. I know of no remedy applica- ble unless by motion to restore, and appeal from order refusing; or it might be that it may be shown what the condition of the bill was when settled ; and yet this might lead to serious com- plications. In fact, it has been held that a bill of exceptions cannot be attacked for alleged imperfections on its face by a writ of mMfidam^us compelling the judge to sign a true bill of exceptions.* Sec. 619. Bill of exceptions — Laches. — The time within which proceedings shall be taken tending to the settlement as well as the signing of bills of exceptions is generally regulated 1 People V. Baker, 35 Barb. 105. 8 state v. Powers, 14 Ga. 388. 2 Ex parte Story, 13 Pet. 339. 4 Harbin v. Ketron, 94 Ind. 146. SiS SPECIAL EEMEDIES. [§ 620. by statute or rules of court. There can be no question of laches or unreasonable delay where the successive steps are taken within the time so prescribed. It is only where proceed- ings are attempted after the expiration of the period of limita- tion, or where there has been an extension of time, either by order of the court or stipulation of the parties, that the ques- tion of laches arises. We have seen that where the judge signs the bill after the limitation prescribed, the court will assume it was done for sufficient reason; and also where the court has refused to sign a bill, though he certifies that the delay was excusable, the court will not interfere with his discretion thus exercised by mamdamus} "Where the judge grants an ex- tension of time for a definite period, he cannot afterwards re- fuse to sign the bill, if presented within that time ; ^ and if he is absent from the state when the time thus extended expires, then the party should have a reasonable time after his return to present it. But if the party delay an unreasonable time under the circumstances, he forfeits his right to the privilege which has been extended to him.' It is important that the bill should be settled as soon after the trial as is reasonably convenient, while the several matters are fresh in the memory of the court and counsel. The fact that the parties have stip- ulated that the bill may be presented and signed after the limitation prescribed by law cannot control the discretion of the court.* Sec 620. Bill of exceptions — Signing of, where term of office of trial judge lias expired. — It may be stated that the doctrine is not uniform in the several states upon the question of who shall settle and sign the bill where the judge who tried the cause has left the bench — whether his successor or himself. It is the rule in some of the states that the judge who presided at the trial is the proper person to settle and sign the bill, though his term of office has expired.^ The reasoning is that he knows what took place at the trial, what questions of law ' Stonesifer v. Armstrong, 86 Cal. v. Cross, 90 N. C. 15; People v. Judge, 594. 41 Mich. 725. 2 Alexander V. State, 14 Lea (Tenn.), ^Engel v. Speer, 36 Ga. 358; State 88; People v. Judge, 41 Mich. 725. t. St. Louis Court, 41 Mo. 598. 3 State V. Dyer, 99 Ind. 426; Cross 5 Davis v. Menasha, 20 Wis. 194; §§ 621, 622.] MAXDAMUS TO INFEEIOE OODETS. 849 were raised and decided, and seems to be the most suitable per- son to settle the exceptions for review by the appellate court.^ In other states it seems to be the rule that the successor in office is the proper person to settle and sign the bill,^ and if he refuse, mandamus lies to enforce the performance of this duty. "Whether a judge can be compelled by mandamus, after his term of oifice expires, to settle and sign a bill of exceptions in a case tried before him during his term, is a question of some doubt.'* By statute in Wisconsin (ch. 116, Laws of 1870), a judge may be so compelled. In Michigan it is held that mandamus will not issue to settle a case for review to a judge who has resigned since filing his answer to the order to show cause.* Sec. 621. Bill of exceptions — Compelling signing of, ex- tends to all tribunals upon wliicli the duty is imposed. — The use of the writ to compel the settling and signing of exceptions is not confined to inferior courts proper, but extends to other tribunals exercising judicial powers in cases where the law im- poses upon them such a duty. Thus, where the commissioners of a county in West Yirginia sitting as a board of canvassers refused to sign a bill of exceptions to their decisions upon being so requested by a candidate for office, and such being their duty as prescribed by law, it was held that moMdamMs would lie to compel them to settle and sign a bill.^ And where a special tribunal was organized under a statute authorized and empowered to try and determine issues involved in county elections in case of contest, and during the proceedings excep- tions were properly taken, and subsequently it was requested to ,sign a bill of exceptions which was presented, and such re- quest was refused, it was held that m.am,damus would issue to ■compel the performance of the act.^ Sec. 622. Bill of exceptions — Signing of, cannot be com- pelled where prisoner has escaped. — Mandamus will not lie to compel the settling or signing of a bill of exceptions in a Galbraith v. Green, 13 S. & R. (Pa.) ^De Haas v. Judge, 46 Mich. 13. 85; State v. Barnes, 61 Neb. 37. See Eggleston v. Judge, 50 Mich. 147. 1 Davis V. Menasha, 20 Wis. 194. ^ Anderson v. Kanawha Co. Com'rs, 2 State V. Slick, 86 Ind. 551; Smith 81 W. Va. 633. V. Baugh, 33 Ind. 163. 6 State v. Sheldon, 2 Kan. 323. 3 Fellows V. Tait, 14 Wis. 156. 54 850 SPECIAL REMEDIES. [§§ 623-625. case where, after trial for a felony of which, the accused was found guilty, he has escaped. The particular ground is that an escaped prisoner can take no action before the court. His being in custody is necessary to any step for or against him such as may be taken to bring him again into custody.^ Sec. 623. Bill of exceptions — Amendment — ReTOcation of writ. — Where a court through oversight or inadvertence has issued an alternative writ to compel a judge to settle and sign a bill of exceptions not containing all the facts deemed necessary by him, it will on discovery of the mistake, having the power, of its own motion set aside and vacate the writ, and direct. a bill to be prepared according to the facts and set- tled before the trial judge.^ Sec. 624. Attorneys — Compelling admission of.— The use of the writ of Tnandamus to compel actions by courts in re- spect to the admission of attorneys is subject to the same gen- eral principles that regulate its use in other matters. Where the power of admission is vested in the courts, ordinarily the qualifications of the applicant to assume the relation or office of an attorney is to be determined in some manner by the court. It thus acts judicially in determining this question, and consequently its determination is not subject to review or con- trol by a superior court by momdamus? Where, however, the court arbitrarily refuses to permit an applicant to be examined who is entitled to such right or privilege, Tnandamus will issue to compel the court to grant the right.^ Sec. 625. Attorneys — Suspension and disbarment. — Courts are only authorized to suspend or disbar attorneys for ade- quate cause, and whether there is sufficient cause is a question for the determination of the court. In such matter it acts judicially, and ordinarily its discretion and judgment are not subject to control by mandamus!' The power thus vested in 1 People V. Genet, 59 N. Y. 80. « State v. Baker (Fla.), 6 S. E. 445. 2 State V. Wis. & Minn. R. Co., 69 5 Ex parte Seoombe, 19 How. 9; "Wis. 369. Com. v. Common Pleas, 1 S. & R. (Pa.) 3 Ex parte Seoombe, 19 How. 9; In 187; Com. v. District Court, 5 W. & re Splane (Pa.), 19 Pitts. Leg. J. (N. S.) S. (Pa.) 272. 237. § 626.] MANDAMUS TO INFEEIOE COURTS. 851 courts with respect to attorneys is very great and far reaching, and in some cases may be exercised in a manner quite sum- mary. However, it is not an arbitrary and despotic power, to be exercised at the will, and to suit the caprice, of the judge) nor in satisfaction of feelings of hatred or revenge. The dis- cretion thus vested in the court is a sound legal discretion, to be exercised, not only for the independence and welfare of the bar, but to maintain the dignity of and respect for the court ; ^ and where this discretion has been flagrantly abused, the ex- ception to the general rule applies and mandamus may issue to restore the attorney's name to the roUs.^ "Where, however, the attorney has a remedy by appeal or writ of error in cases other than where the court acts without or beyond its jurisdic- tion, it would seem, upon well-settled principles, that the writ will not lie,' though it must be conceded that the remedy has been frequently applied in respect to disbarment of attorneys, without reference to the existence of a remedy by appeal or certiorari.'^ Note. — In People v. Turner, 1 Cal. 145, the court, while stating that, if the applicants have another specific and adequate remedy, the writ will not lie, further state: "That there is no other specific legal remedy is too apparent to admit of controversy or to require any further consideration." In Fletcher v. Dangerfield, 20 Cal. 430, the order of the court was reviewed upon certiorari. Such was the proceeding in Start v. Start, 7 Iowa, 499. I infer that the court in People v. Turner concluded that the remedy by certiorari or appeal was not an adequate remedy — one that was sufli- ciently speedy, — and there is much force in this position. It requires no argument to sustain the proposition that an attorney, with his pending cases, who has been disbarred from his ofSce and his practice, should have a speedy remedy to determine the legality of his punishment. Sec. 626. Attorneys — Suspension and disbarment contin- ued. — "Where, however, the court is without jurisdiction, either as respects the cause or person, or where the punishment for the alleged offending is not authorized by law, then it is quite generally held that mandamus will lie to restore an attorney 1 Ex parte Secombe, 19 U. S. 9. 3 in re Eandall, 11 Allen, 473. 2 State V. Kirke, 13 Fla. 378, 95 Am. * People v. Judges of Delaware Co., Dec. 814; Ex parte Burr, 9 Wheat. 1 Johns. Cases, 181 ; People v. Turner, 539; Walls v. Palmer, 64 Ind. 493. 1 Cal. 145. 852 SPECIAL EEMEDIES. [§ 626(Z. who has been disbarred, and in fact it is the more appropriate remedy.! Thus, where a court disbarred an attorney for con- tempt committed by him before another court,^ and where a court, as punishment for contempt committed by an attorney in its presence, disbarred him, punishment for contempt being prescribed by statute, and not extending to disbarment {Ex parte Robinson, 19 "Wall. 505), it was held that the judgment of the court was beyond its jurisdiction, and therefore ma/nda- mus would lie ; that no amount of legal discretion can supply a defect or want of jurisdiction. Mcmdmnus is also the recog- nized remedy when the case is outside of the discretion of the court, and is one of irregularity or against the law or of fla- grant injustice.' Sec. 626a. Attorneys — Suspension and disbarment — No- tice. — It is generally conceded that the attorney is entitled to notice and an opportunity to be heard in his defense, and that, where such notice is wanting, then the court is without juris- diction to proceed,* and that mandamus will lie to restore an attorney who has been disbarred without notice of the proceed- ings. The supreme court of the United States, adhering to its peculiar doctrine in reference to the question of jurisdiction ac- quired in special proceedings, which, as we have seen in other chapters, is not in accord with the doctrine of many of the state courts, make an exception to the rule stated. Thus, where a statute directs that the proceedings to remove an attorney must be taken by the court on its own motion for matter within its knowledge, and that notice shall be given the attorney, yet where the court is of the opinion that no notice was necessary under the statute and proceeded without it, its decision being made in the exercise of jurisdiction once obtained, the subject being within its acknowledged jurisdiction, mandamus would not lie to reverse or amend it.' lEx pai-te Bradley, 7 Wall. 364; « People v. Turner, 1 Cal. 145; Ex State V. Kirke, 12 Fla. 278; Ex parte parte Heyfron, 7 How. (Miss.) 127. Eobinson, 19 Wall. 505. 5 Ex parte Secombe, 19 How. 9. See 2 Ex parte Bradley, 7 Wall. 364. also In re Randall. 11 Allen, 437. See, 3 Ex parte Bradley, 7 Wall. 364. however, Ex parte Robinson, 19 Wall. 505. § 627.] MANDAMUS TO INFEEIOE COtfETS. 853 Sec. 627. District attorney — Compelliug court to recog- nize appointment of attorney to defend person who is non compos. — The writ will issue to compel the judge of an inferior court to recognize a district attorney who has been duly elected or appointed and who is duly qualified to discharge the duties of the office.^ The writ will also issue to compel an inferior court to appoint an attorney to defend a person who is non compos and against whom suit is brought.^ 1 People V. HaUett, 1 Colo. T. 853. 2 Ex parte Worthington, 37 Ala. 496. CHAPTEE 30. MANDAMUS— PARTICULAE COUETS. Sec. 638. 629. 630. 631. Justices' courts and justices of the peace — Writ addressed to. Federal courts, supreme court — When writ may issue from. Circuit and district courts. Supreme court of the District of Columbia. 632. Federal courts continued — Ee- moval of causes. 633. State coTorts — Eemoval of causes. 634. State court — Supreme or court of last resort! Sec. 628. Justices' courts and justices of the peace. — The same general rules apply to proceedings in justices' as in other inferior courts. Such courts may be compelled by mandamus to proceed to the performance of their duties, and determine matters which are brought before them and which are within their jurisdiction.^ Thus, a writ of mandate lies to compel a justice to proceed with the preliminary examination of a per- son regularly charged with having committed a criminal offense, arrested and brought before him. The duties imposed in this respect by statute are generally imperative. He cannot justify a refusal to proceed upon the ground that an examination for the same offense had been had before another magistrate. <.This is not a matter for his consideration, and especially where the prisoner is discharged by him.^ The rule was applied to the extent of compelling a police justice of a city to entertain a complaint for embezzlement of county funds against a ward collector, where he refused by reason of a supposed lack of ju- risdiction.' He may be compelled to enter judgment where the proceedings have reached that stage where discretion has been exercised and exhausted, and the act has become in its nature ministerial, or a plain duty imposed by law.* Also to iPeoplev. Barnes, 66 CaL 594; At- 'Attorney-General v. Crosby, 40 torney-General v. Police Justice, 40 Mich. 631. Mich. 631. 4 Smith v. Moore, 38 Conn. 105; An- ^Peoplo V.Barnes, 66 CaL 594 • derson v. Pennie, 82 Cal. 265. § 629.] MAOTDAJVIUS PAETICTTLAE COTJETS. 855 make entries in his docket whicli are according to the facts. But not, however, to compel him to change entries therein once made, as they import verity and cannot be impeached or contradicted by the statements of the justice himself, even on matters of jurisdiction.^ Also to certify the record or tran- script where required, "where an appeal has been properly taken.^ Also to issue an execution upon a judgment ; ^ and generally to do and perform all acts that are ministerial in their nature. But not to vacate a judgment once rendered,^ or control any matter •within his discretion.* Sec. 629. Federal courts, supreme court. — The proposi- tion is often stated that the supreme court of the United States, under the constitution, is without power to grant writs of imajn- dmnus except in aid of its appellate jurisdiction ; that it cannot grant the writ as the exercise of an original jurisdiction.* The expression or distinction may not be sufficiently explicit for the comprehension of every one without research or reflection. The writ is applicable only in the supervision of the proceed- ings of inferior courts in cases where there is a legal right without any existing legal remedy. A mandamius to an ofiicer is the exercise of original jurisdiction ; but mandarmis to an inferior court of the United States is in the nature of appellate jurisdiction.'' The thirteenth section of the judiciary act of 1T89 enacts that " the supreme court shall have power to issue writs of prohibition to the district courts where proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding offices under the authority of the United States." It is held that notwith- standing the provisions of such act authority does not exist in the supreme court to issue the writ in the exercise of orig- inal jurisdiction; that such clause, so far as it attempted to 1 State V. Ellis, 69 Wis. 19. * Miller v. Powell, 7 Barb. 977; Mil- . 2 Town of Orange v. Bill et al., 29 ler v. Powell, 53 Me. 352. Vt. 443; Ex parte Martin, 5 Ark. « Ex parte Crane, 5 Pet. 190; Mar- g71_ bury v. Madison, 1 Cranch, 137; Ex 3 Hamilton v. Lutt, 65 Cal. 57; Fer- parte Bradley. 7 Wall. 364. hum V. Barcalow, 6 Halst. (N. J.) 38. ' Ex parte Bradley, 7 Wall. 364; * O'Brien v. Tallman, 36 Mich. 13. Ex parte Crane, 5 Pet. 190. 856 SPECIAL EEIIEDIES. [§ 630. authorize such jurisdiction, is not warranted by the constitu- tion.' In the distribution of power by the constitution it is declared that the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers, and those in which a state shall be a party. In all other cases the supreme court shall have appellate jurisdiction. It is the essen- tial criterion of appellate jurisdiction that it revises and cor- rects the proceedings in a cause already instituted, and does not create that cause. Hence the authority given by said act to issue writs of mandamus to public oiBcers is unwarranted by the constitution, except in those cases enumerated in the con- stitution, with the exception of judicial officers of the United States, and as to those in the exercise of appellate jurisdiction only.^ Sec. 630. Circuit and distiict courts. — The fourteenth sec- tion of the judiciary act of 1789 enacts that certain courts of the United States, including the circuit and district courts, " shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdic- tions and agreeable to the principles and usages of law." Under this enactment such courts may issue a writ of mandaTntis when necessary to the exercise of their jurisdiction, but they have no authority to issue it as an original writ in any case.' The express authority to issue the writ to national courts and of- ficers has always been held' to exclude authority to issue the writ to state courts and officers.* The only exception is where such writ has been issued as a process to enforce judgments.* Thus, mandamus will not lie from the district court on the ap- plication of an assignee in bankruptcy against the auditor of a state to recover from the state taxes long before paid into the state treasury, on the ground that the legislature had en- iRiggs V. Johnson County, 6 Wall. ' Graham v. Norton, 15 Wall. 427; 166; Marbury v. Madison, 1 Cranoh, Bath County v. Amy, 13 Wall. 244; 137; United States v. Boutwell, 17 Mclntyre v. Wood, 7 Cranch, 504 Wall. 604 *itiggs v. Johnson, 6 WaU. 189; 2 Marbury v. Madison, 1 Cranch, Graham v. Norton, 15 Wall. 427. 137 ; Eiggs v. Johnson County, 6 Wall » Graham v. Norton, 15 Wall. 427. 166, 188. § 631.J MANDAMUS PAETICULAE COURTS. 857 acted a law directing them to be refunded. Such a mandamus IS not ancillary to a jurisdiction already acquired, but is in effect an original proceeding.^ Nor will it be granted in favor of a holder of county bonds to make the county levy a tax, the creditor not having obtained judgment on his claim, nor even put it in suit.^ Nor to compel the register of a land office to grant final certificates of purchase for lands to which the relator supposed himself entitled under the laws of the United states.' A judgment at law is necessary to support a writ of mandamus to enforce the levy and collection of taxes to pay bonds,* and, when judgment has been obtained, then mandamus is the proper remedy to enforce it, and may be issued by the circuit court.' The writ in such case is process in execution, and the court may control its own process and define its extent.^ Sec. 631. Supreme court of the District of Columbia,^ The supreme court of the District of Columbia has power to issue writs of mandamus as original process in those cases in which the parties are by the common law entitled to them.^ This result follows not from any act of congress specifically conferring this jurisdiction, but from the provisions of the act declaring the laws of Maryland to be in force in that part of the District ceded by her, which invested the then circuit court with this power because it was a common-law jurisdic- tion, and the common law on that subject was then in force in Maryland, aiid such jurisdiction was extended to the supreme court upon its organization.' This construction of the law has made it necessary for parties desiring to compel an officer of the government to perform an act in which they are interested to resort to the highest court of the District for redress; the 1 Graham v. Norton, 15 WalL 437. « Memphis v. Brown, 97 U. S. 300. 2 Bath County v. Amy, 13 "Wall. 344. 7 Kendall v. United States, 13 Pet. 3 Mclntyre v. Wood, 7 Cranch, 504 534; Decatur v. Paulding, 14 Pet. 497; 4 Green County v. Daniels, 103 U. United States v. Schurz, 103 U. S. S. 187; Davenport v. Dodge County, 378; United States v. Black, 138 U. 105 U. S. 337; Chickaming v. Car- S. 40. penter, 106 U. S. 663. SKendaU v. United States, 13 Pet. 5 Labette County v. United States, 534; United States v. Black, 138 U. 113 U. S. 317; United States v. Gates, S. 40. 7 Wall. 610. 858 SPECIAL EEMEDIES. [§§ 632-634. supreme court of the United States and the circuit and district courts thereof, as we have seen, not having original jurisdic- tion.i Sec. 632. Federal courts continued — Removal of causes.— The doctrine is well settled that mandamus does not lie to com- pel state courts to allow a removal of causes into the federal courts.- There may be said to be two sufficient reasons for this position: First, the writ will issue to state courts only in aid of the appellate jurisdiction of the federal court; and second, the aggrieved party has a remedy by application to the state court and appeal to the highest court of the state, and thence by writ of error to the supreme court of the United States. Another reason might be stated to be, that the juris- diction of the federal court does not depend upon the action of the state court where the case is one proper for removal and the proper steps have been taken.' Where, however, a case has been improperly removed from the state court to the fed- eral court, the writ will lie on the application of the state to compel the latter court to remand it.^ But the writ will not issue in such a case where the circuit court has once refused a motion to that effect. The remedy is by writ of error.' Sec. 633. State courts — Removal of causes. — The writ will not issue from superior courts of a state to compel inferior courts to allow removal of a cause. It will not control their discretion where they have acted.^ Another reason is that a conflict of jurisdiction might arise between the state and fed- eral courts.' And still another, that the aggrieved party has a remedy by appeal or writ of error.* Sec. 634. State courts — Supreme or court of last resort. In some of the states the power of the supreme or other court of last resort to issue the writ is limited to the same extent as 1 United States v. Black, 138 U. S. 5 Ex parte Hoard, 105 U. S. 578. 40. 6 Francisco t. Insurance Co., 36 CaL 2 Hough V. Western Trans. Co., 1 283; People v. Judge, 21 Mich. 577. Biss. 425. 'Francisco v. Judge, 36 Cal. 283. 3 Shelby v. Hoffman, 7 Ohio St. 8 ghelby v. Hoffman, 7 Ohio St. 450; 450. State v. Curler, 4 Nev. 445. 4 Virginia v. Eives, 100 U. S. 313. § 634.J MANDAMUS — - PAETICULAE COTIETS. 859 the federal supreme court, and the writ issues only in aid of its appellate jurisdiction. In other states, for instance, Wis- consin, California, Michigan and some others, the court has original jurisdiction. Where such superior court is vested with appellate power only, then the inferior courts are not subject to interference by such courts, except in cases where it be- comes necessary to exercise or aid the appellate jurisdiction of such superior courts. As we have seen, they can compel in- ferior courts to proceed, because it may be essential to the right which a party has of appeal that the controversy be deter- mined and concluded in the inferior court.^ Where the su- preme court has concurrent jurisdiction of the writ with the circuit or inferior cotirt, it will grant it only when good rea- son is shown why the application is not made to such other court.^ 1 State V.Hall, 3 Coldw.(Tenn.) 255; 36 Iowa, 188; Hawes v. People, 124 Hoosier v. Higgins Township Board, HL 560. 45 Mich. 340; Westbrook v. Wicks, 2 State v. Haben, 22 Wis. 101. CHAPTER 81. MANDAMUS TO PUBLIC OFFICERS. 635. General principles. 636. Executive officers. 637. Writ only issues to officers in being having the power and whose duty it is to perform the act. 638. Discretion of public officers will not be controlled — Writ wiU not lie where party has an adequate legal remedy. 639. Federal officers — ^Writ can only issue from supreme court of District of Columbia. 640. Secretary of interior. 640, 641. Patents. 643. Secretary of state — Delivery of commission. 643. Postmaster-general — Payment of an award. 644. Secretary of treasury — Pay- ment of claims. 644a. Secretary of navy — Payment of pensions. 645. Superintendentof public print- ing — Delivery of documents. 646-649. State officers — Governor — Whether writ lies to him in any case. Sec. 650. 651. Governor — Application of the rule. Executive officers of state — The rule prevailing in some states which exempts the governor applied by their courts to aU executive officers of state. Contrary doctrine prevails in other states — Illustrations. State boards. State and other auditing offi- cers. Warrants for salaries — Issue of by state and other officers. Warrants for awards and other purposes — Issue of. Duty in some instances minis- terial, in others not. 658, 659. Payment of awards and other claims. Payment of awards and other claims — ^Duty ordinarily min- isteriaL Eight of action wiH not pre- clude the allowance of the writ. 661a. Warrants drawn on special fund. 652. 653. 654. 655. 656. 657. 660. 661. Sec. 635. General principles. — We have seen in the pre- ceding chapters that mandamus, when addressed to a public oificer, is the exercise of original jurisdiction on the part of the court issuing the writ, and therefore cannot be issued by courts having appellate jurisdiction only. The general rules and principles which have been stated to be applicable where the writ is applied for when addressed to inferior courts are those which apply and govern where the application is for a writ addressed to a public officer. §§ 636-638.] MANDAMUS TO PUBLIC OFFICERS. 861 Sec. 636. Executive officers.— Thus, the court will not in- terfere by mandamus with the executive ofiBcers of the gov- ernment, whether national or state, in the exercise of their ordinary official duties; but when they refuse to act in a case at all, or when by special statute or otherwise a mere minis- terial duty is imposed upon them, that is, a service which they are bound to perform without further question, then if they refuse to act or perform such duty a mandamus may be issued to compel them.i The rule is stated somewhat stronger by the United States court, in substance, that the courts will not interfere by m,and Sec. 827. Unlawful discrimination — Control. — The law with respect to controlling unlawful discrimination applies as well to persons as to rates. Such a company cannot select whom it will to enjoy exclusive privileges upon its road. Thus, it cannot grant the exclusive privilege to any particular ex- press company, but must give to every one equal facilities and rights.- In defining express facilities it was said : " As inter- preted by the customs and usages of these parties (referring to the parties to the suit), and sanctioned and adopted by the decisions of the courts, these facilities may be said to include the right to enter depots and stations with loaded and empty wagons ; the use of the platforms and space for the loading' and unloading of express freight; sufficient space in suitable cars, drawn in passenger or quick trains, for the transportation of such freight, and a messenger in charge thereof, with room for its assortment while in transit, and a suflficient delay at stations for the delivery and receipt of express matter. Ex- press facilities, from the nature of the business, cannot be lim- ited to a definite space, biit must correspond in this and other particulars to the public want and convenience to which the express company ministers." ' Sec. 828. Commutation tickets — Issue of.— A railroad company is under no obligation to issue commutation tickets for any particular locality or station. But when it has estab- lished such a system and rate to the public, it cannot refuse the advantages thereof to any particular individual. Such an act would be in law an unjust discrimination against such individ- ual, and a violation of the principle of equality which railroad companies must observe in the management and conduct of their business.^ 1 State V. Fremont, E. & M. V. R. 3 Wells, Fargo & Co. v. Oregon Ry. Co., 32 Neb. 313, 35 N. W. Rep. 118. & Nav. Co., 15 Fed. Rep. 561. 3 Wells, Fargo & Co. v. Oregon Ry. ■'At water v. Delaware, etc. R. Co., & Nav. Co., 15 Fed. Ren. 561; Wells, 48 N. J. L. 55. Pargo &. Co. V. Nor. Pao. R. Co., ZZ Fed. Rep. 469. 1016 SPECIAL EEMEDIES. [§§ 829-831. Sec. 829. Compensation for land.— In England the writ has been in many cases issued for the protection of land-owners in their right to compensation for land taken by virtue of the right of eminent domain. Where a railroad company has failed to institute proper proceedings to ascertain such compensation, the courts have compelled it to do so by proceedings in man- damus; and in some cases such a company has been compelled to make payment of the amount of compensation thus deter- mined, on the ground of the inadequacy of any other remedy.' In this country, however, statutes usually provide that the land- owner may institute the proceedings in case the corporation neglect. He also has a right of action for damages and for possession where his property has been unlawfully appropri- ated. It would seem that such remedies are entirely adequate. Sec 830. Writ issues on ground that there is no other remedy that is adequate. — In those cases which have been referred to where it is held that the writ would lie, and gen- erally where duties of a similar character are imposed which relate to the rights and welfare of the public, there is no other adequate remedy. An indictment is not, nor is an action for damages, for the very plain reason,, if for no other, that they do not affect existing conditions. They still remain.^ II. "Watee-woeks Companies. Sec. 831. Water-works companies are quasi-puhlic corpo- rations. — In preceding pages it has been stated that corpora- tions created under the laws of a state for the purpose of vend- ing and distributing water to the inhabitants of a locality are quasi-T^uhliQ. corporations. They may exercise the right of emi- nent domain. Their purpose is public in character, and sub- ject to the same general power and control which prevails with respect to railroad corporations.' 1 Queen v. Eastern Counties R Co., 2 Habersham v. Savannah & Ogee- 2 Ad. & E. (N. S.) 347; King v. Water- ohee Canal Co., 26 Ga. 665. worJis Co., 6 Ad. & E. 350; Queen v. 3 See mpra, sec. 801; Price v. Riv- Trustees of Swansea Harbor, 8 Ad. & erside^ L. & I. Co., 56 Cal. 431; Mc- E. 439; Queen v. Deptiord Pier Co., Crary v. Beaudry, 67 CaL 120. 8 Ad. & E. 910. §§ 832, 833.] PEIVATE OOEPOEATIONS PITBLIC DUTIES. lOlY Sec. 832. Subject to control with respect to pviblic du- ties. — It was there stated that they could make no discrimina- tion either in persons or price. It must follow from the rules which have been stated with respect to railroad corporations that all duties or acts which they are by law required to per- form may be enforced by mandamus. The rates that may be charged, in the absence of any designation in their char- ters, evidently must be such as under all the circumstances must be reasonable, and that question ultimately is one to be determined by the courts. In many charters, however, the maximum rates are fixed, and the question arises whether char- ters of such a character so far partake of the nature of a con- tract that they become absolute and unalterable. Such charters usually emanate from the local municipality which permits the use of the streets for pipes and incident purposes. In most of the states at the present time, the state, by force of its consti- tution or laws, has a reserved power to alter or change the rights and privileges granted, and this extends to regulating the prices that may be charged consumers. The provision for fixing rates cannot be separated from the remainder of the statute by calling it a contract.' Hence, laws requiring gas companies, water companies and other corporations to supply their customers at prices fixed by the municipal authorities of the locality are within the scope of legislative power, unless, prohibited by constitutional limitation or valid contract obli- gations, and subsequent legislation affecting the franchise is not prohibited.^ Sec. 833. Authority of courts with respect to rates.— The question that more nearly pertains to our subject is to what extent, if at all, can the courts upon mandamus regulate such rates, if as fixed they are ' unreasonable. The proposition was stated in Spring Valley Water Works Co. v. Schottler, supra (110 U. S. 34 Y), but not decided. It was further stated that the prices fixed by the honest judgment of a commission duly authorized must be deemed reasonable both by the company and the pub- 1 Spring Valley Water-works Co. 2 Spring Valley Water-works Co. V. Schottler, 110 U. S. 847; Mnnn v. v. Schottler, 110 U. S. 347. Illinois, 94 U. S. 113; Sinking Fund Cases, 99 U. S. 700. 1018 SPECIAL EEMEDIES. [§§ 834r-83G. lie. It would follow that, as mandamus does not lie to control a discretion honestly exercised, it would not lie to determine the question proposed. That it might lie where thore had been fraud or a clear abuse of discretion is clearly a principle of the law of mandamiis. The same rule applies to companies or persons operating under a franchise that we have seen is applicable to railroad corporations, and that is that they can- not discriminate either in respect to persons or rates.' Sec 834. Compelled to extend mains. — Such companies may also be compelled by mandamus to extend their mains, where under the ordinance by which the right to construct and oper- ate such works is granted the duty is imposed upon the com- pany. Such a contract, if it be termed a contract, is not of that character which precludes the enforcement of its conditions by means of such a proceeding.^ Sec. 835. To change location of pipes. — Mandamus is the appropriate remedy to compel a water company to change the location of pipes which obstruct the flow of water in the sewers, and it is no sufficient objection to the granting of the writ that the pipes were originally laid with the consent of the city. The question of the liability on the part of the city for the expense incident to such change is not a proper subject for considera- tion.' Sec. 836. To furnish pure and wholesome water. — Char- ters sometimes provide for the furnishing of pure and wliole- some water in sufficient quantity to meet specified needs. The word " pure " in such a charter means wholesome or ordinarily pure, and not pure in a chemical sense.* It is quite probable that the duty thus imposed, where the charter was silent in this respect, would include as much. The question not only of the duty of such a company to furnish pure water, but also of the power of the court to enforce such duty by mandam.us, was de- ' Amerioan Water Works Co. v. 3 city Council v. Capital City State, 46 Neb. 194; McCrary v. Water Co. (Ala.), 9 S. Rep. 339. Beaudry, 67 CaL 120. ^Commonwealth v. Towanda 2 City of Topeka v. Topeka Water Water Works Co., 15 Atl. Rep. 440, Works Co. (Kan.), 49 Pac. Rep. 79. § 837.] PRIVATE COEPOEATIONS PUBLIC DUTIES. 1019 termined by the 'New York supreme court in a recent case.' In prior pages we have stated the conclusion of the court with respect to these questions {ante, sec. SOla), which was in effect that having undertaken in view of its franchises of a public character, and expressly charged with the duty of performing a. certain service to all who pay certain rates or fees therefor, it could be compelled by mandamus to perform such service, which in that case was the furnishing of pure water. Sec. 837. The nature of the franchise does not prevent the enforcement of a clear duty. — Some courts and text-writers make use of the term " contracts " as applied to charters of such character. This is misleading. They are in no sense such con- tracts as to preclude supervision by the courts so far as they re- late to public use and the public welfare. They are more in the nature of public duties voluntarily assumed, and incident to the nature of their franchise. The duty to furnish wholesome water is as much a public duty as that water shall be furnished to all consumers without discrimination. It is evident, therefore, that where such a company, exercising a franchise for public uses, fails or refuses to furnish wholesome water, its duty in this re- spect may be enforced by mandamus, as well as where it fails or refuses to furnish sufficient in quantity, having the power so to do. That an action in equity to rescind the franchise is not an adequate remedy, nor is an action for damages. Yet where the conditions prescribed by an ordinance have been accepted and fully performed, a contract is thereby created which can- not be violated, unless by reason of some reserved power ex- isting when the contract was made. Thus, it was stated by the United States supreme court as late as 1898, that that •court had toO often decided for the rule to be even questioned, that the grant of a right to supply gas and water to a munici- pality and its inhabitants, through pipes and mains laid in the streets, upon condition of the performance of its service by the grantee, is the grant of a franchise, vested in the state, in con- sideration of the performance of a public service, and after performance by the grantee is a contract protected by the constitution of the United States against state legislation to 1 People V. Suburban Water Co., 56 N. Y. Supp. 364. 1020 SPECIAL EEMEDIES. [§ 837. impair it. (Citing several cases.) It is true that in these cases the franchise was granted directly by the state legisla- ture, but it is equally clear that such franchises may be be- stowed upon corporations by the municipal authorities, pro- vided the right to do so is given them by their charters. State legislatures may not only exercise their sovereignty directly, but may delegate such portions of it to inferior legislative bodies as in their judgment is desirable for local purposes.* Note.— By an act of November 28, 1883, the legislature of Washington territory incorporated the city of Walla Walla, conferring upon it, among other powers, the power to provide a sufficient supply of water for the city, and the right to permit the use of the city streets for the purpose of laying pipes for furnishing such supply for a term not exceeding twenty-five years. The act contained a further provision fixing the limit of indebtedness of the city at |50,000. The city under this authority by contract granted the Walla Walla Water Company the right to lay and maintain water mains, etc., for twenty-five years, reserving to itself the right to maintain fire hydrants and to flush sewers during this term, each without charge. The contract further provided that it was voidable by the city, so far as it re- quired the payment of money, upon the judgment of a court of competent jurisdiction, whenever there should be a substantial failure of such supply, or a like failure on the part of the company to perform its agreements, and that until the contract should have been so avoided the city should not erect or maintain, or become interested in, other water-works. These con- ditions were accepted by the water company and were complied with by it, and the conti'act was in force when a bill was filed as hereinafter stated. In 1890 the city authorities passed an ordinance to provide for the construc- tion of a system of water-works to supply the city with water, and to issue bonds for that purpose to the amount of $160,000, which ordinance was ac- cepted by the necessary majority of legal voters. The water company then filed its bill to enjoin the city from creating the proposed water-works, and from expending city moneys for that purpose and from issuing city secu- rities therefor. To this bill the city demurred, resting its demurrer upon a want of jurisdiction, all parties on both sides being citizens of the state of Wisconsin. Held: (1) That the allegations of the bill raise a question of the constitutional power of the city to impair the obligations of its contract with the plaintifiE by adopting the ordinance. (3) That the ordinance and acceptance constituted a contract as stated in the text. (3) That the plaint- iff has no adequate and complete remedy at law and the court has jurisdic- tion in equity. (4) That as the contract was limited to twenty-five years, and as no attempt was made to grant an exclusive privilege, the city acted within the strictest limitation of its charter. (5) That if the contract for water supply was innocuous in itself and was carried out with due i-egard to the good order of the city and the health of its inhabitants, the aid of the police power could not be invoked to abrogate or impair it. 1 Walla Walla v. Walla Walla Water Co., 173 U. S. 1. § 837.] PEIVATE COEPOEATIONS PUBLIC DUTIES. 1021 The question was discussed in this connection of the power of one council to bind its successor or the city by present contracts of the character stated. It was said: "This court has doubtless held that the police power is one which remains constantly under the control of legislative authority, and that a city council can neither bind itself or its successors to contracts prej- udicial to the peace, good order, hea'th or morals of its inhabitants; but it is to cases of this kind that these rulings have been confined. If a contract be objectionable in itself upon these grounds, or if it become so in its exe- cution, the municipality may, in the exercise of its police power, regulate the manner in which it may be carried out, or may abrogate it entirely, upon the principle that it cannot bind itself to any course of action which shall prove deleterious to the health or morals of its inhabitants. In such case an appeal to the contract clause of the constitution is ineffectual. . . . Under this power and the analogous power of taxation we should have no doubt that the city council might take such measures as were necessary or prudent to secure the purity of water furnished under the contract of the company, the payment of its just contributions to the public burdens, and the observance of its own ordinances respecting the manner in which the pipes and mains of the company should be laid through the streets of the city. ... If , as alleged in the answer, the water company failed to carry out its contract, and the supply furnished was inadequate for domestic sani- tary or fire purposes, and the pressure so far insufficient that in many parts of the city water could not be carried above the first story of the buildings, the seventh section of the contract furnished an adequate and complete remedy by an application to the courts to declare the contract void." Speak- ing with reference to exclusive franchises it was stated: "Cases are not infrequent where, under a general power to cause the streets of a city to be lighted or to furnish its inhabitants with a supply of water without limita- tion as to time, it has been held that the city has no right to grant an ex- clusive franchise for a period of years." Citing many cases. Speaking further, with reference to limitations of indebtedness under charters, it was stated: " There is considerable conflict of authority respecting the proper construc- tion of such limitation in municipal charters. There can be no doubt that if the city proposed to purchase outright or establish a system of water- works of its own, the section (referring to that limiting the indebtedness to fifty thousand dollars) of the statute should apply, though bonds were issued therefor payable in the future. There are also a number of respectable au- thorities to the effect that the limitation covers a case where the city agi-ees to pay a certain sum per annum, if the aggregate amount payable under agreement exceeds the amount limited by the charter. But we think the weight of authority as well as of reason favors the more liberal construe ■ tion that a municipal corporation may contract for a supply of water or gas, or like necessary, and may stipulate for the payment of an annual rental for the gas or water furnished each year, notwithstanding the aggre- gate of its rentals during the life of the contract may exceed the amount of the indebtedness limited by the charter." The court distinguishes ordi- nary from extraordinary expenses, and states a rule which settles disputed questions with respect to the effect of such limitations upon indebtedness incurred by current expenses. 1022 SPECIAL EEMEDIES. [§ 838. II. Gas CoMPAiTiEs. Sec. 838. Distinction attempted from water companies.— For reasons not satisfactory at least, some courts hare made distinctions between gas and water companies in respect to their public character. Judge Sherwood, in Williams v. Mutual Gafi Co., 4 Am. & Eng. Corp. Cases, says: "These rights and privileges (gas companies) are granted that corresponding duties and benefits might inure to the citizens when the rights and privileges conferred should be executed. The benefits are the compensation for the rights conferred and privileges granted, and are more in the nature of convenience than neces- sity. Hence the duty of such a corporation imposed cannot therefore be likened to the innkeeper or common carrier, but more necessarily approximates the telegraph, telephone, or mill -owner." Substantially the same reasons were expressed by the supreme court of Connecticut.^ To these courts, then, it appears that the question of necessity as distinguished from convenience is the controlling element which determines the public character of corporations or those enjoying franchises granted by the state. That a use is not public — that is, not an absolute necessity — because it could be obtained from other sources ; or that transportation by rail was not an absolute neces- sity, as the old stage-coach could be utilized for such purpose. The doctrine should rest on higher grounds. It is that declared by many courts, in substance, that corporations invested with franchises to subserve the public interests are subject to legis- lative control. That the visitorial or superintending power of the state over corporations created by the legislature will always be exercised in proper cases, through the medium of the courts, to keep those corporations vrithin the limits of their lawful powers, and to control and punish abuses of their fran- chises.^ JSTotwithstanding the position assumed by Judge Sher- wood as to the character of such companies, their relations to the community, and the rights and privileges they must neces- 1 MoCum V. Norwich City Gas Co., Commerce, 47 Wis. 670; Attorney- 30 Conn. 521. See also New York General v. Columbus Gas Light Co., Cent. etc. R. Co. v. Metropolitan G. 34 Ohio St. 572; Cincinnati G. L. Co. L. Co., 63 N. Y. 326. v. State, 18 Ohio St. 237. estate V. Milwaukee Chamber of §§ 839, 840.] PEIVATE COEPOEATIONS PUBLIC DUTIES. 1023 sarily exercise, give to them a public character, and to a cer- tain extent a monopoly, which can be controlled only upon the ground of some corresponding duty to meet the public wants. That duty requires the company to supply gas to those who have properly prepared their premises to receive it, upon complying with such reasonable conditions as may be exacted of them by the company.^ Sec. 839. They are quasi-public corporations. — It was said by the supreme court of the United States " that the manu- facture of gas and its distribution for public and private use, by means of pipes laid under legislative authol-ity in the streets and ways of a city, is not an ordinary business in which every one may engage, but is a franchise belonging to the govern- ment, to be granted for the accomplishment of public objects, to whomsoever and upon what terms it pleases. It is a busi- ness of a public nature, and meets a public necessity for which the state may make provision. It is one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization for the promotion of public convenience and safety."^ Sec. 840. Whether they can he compelled to furnish gas to all applicants-. — The question whether such companies are public or private is manifestly important; upon the answer depends the right of those who desire the use of gas to enforce its delivery. In some jurisdictions it is held there is no obli- gation on the part of such a company to furnish gas generally to all persons who desire its use,' Avhile in others it is held that at common law gas companies are bound to furnish gas to all persons who have made the necessary preparations to receive the same, and especially where such companies have been awarded the exclusive right and privilege of vending gas." It 1 Williams v. Mutual Gas Co., 52 Bank v. London G. Co., 30 U. C. Q. B. Mich. 499. 333. 2 New Orleans Gas Co. v. Louisiana . * Williams v. Mutual Gas Co., 52 Light Co., 115 U. S. 650. Mich. 499; Shepard v. Milwaukee 3McCune v. Norwich City Gas Co., Gas L. Co., 6 Wis. 539; New Orleans 30 Conn. 531 : Com. v. Lowell G. L. G. L. & B. Co. v. Paulding, 13 Rob. Co., 13 Allen, 75; Paterson G. L. Co. (La.) 378; Gas Light Co. of Baltimore V. Brady, 37 N. J. L. 345; Commercial v. CoUidaj^ 35 Md. 1. 1024: SPECIAL EEMBDIES. [§§ 84:1, 842. is held even, in New York that the furnishing of gas is so far a public use that a charter authorizing a company to take private property upon making compensation therefor is constitutional.' And it also has been held in that state that gas-light companies which possess, by virtue of their charter, powers and privileges which others cannot exercise, the provisions of their charters requiring them to furnish gas on payment of all moneys due from applicants, may be compelled by ma/ndamus to furnish gas to persons who have a right to receive it, and who offer to comply with such reasonable rules and regulations as the com- pany may have provided.'^ III. Telephone Companies. Sec. 841. Telephone companies are quasi-public corpora- tions. — We have seen' that the Michigan court likened gas companies to telephone companies, and held they were unlike railroad companies with respect to their public character. It will be seen, however, that quite generally telephone companies are considered and classed by the courts as partaking of a pub- lic character to the extent that mcundamus will lie to compel them to grant equal rights to all persons to enjoy the benefits to be derived from the use of the telephone.' " The telegraph and telephone are important instruments of commerce, and their service as such has become indispensable to the commer- cial and business public. They are public vehicles of intelli- gence, and they who own or control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railway company as a common carrier can rightfully refuse to perform its duty to the public."* Sec. 842. Compelled to grant equal facilities to telegraph companies as to others. — In controversies between telephone and telegraph companies, as well as controversies between com- 1 Bloomfield & R. N. G. Co. V. Rich- Co. v. Bradbury, 106 Ind. 1; Cent. ardson, 63 Barb, 437. Union Telephone Co. v. State, 118 2 People V. Manhattan G. L. Co., 45 Ind. 194. Barb. 136. * Telephone Co. v. Telegraph Co., 3 State V. Nebraska Telephone Co., 66 Md. 399. See also Transfer Co. v. 17 Neb. 136; Cent. Union Telephone Telephone Co., 34 Alb. L. J. 383. §842.] PEIVATE OOEPOEATIOSrS PUBLIC DUTIES. 1025 panics of the former kind and those engaged in other pur- suits, the qtiestion has been presented as to the right of the latter to compel the granting to them the use and enjoyment of the benefit of the telephone. The principal contention has been over provisions in the contract between the patentees of instruments and the telephone companies relating to the use of the instruments, wherein such companies are restricted in sach use to the extent that the facilities afforded by means thereof cannot be extended to telegraph companies in general or par- ticular companies named. It has been quite uniformly held that telephone companies could not discriminate with respect to those who desired the facilities they offered, and that such provisions in their contracts with the lessors or owners of the patent were absolutely void.^ Note. — The subject under consideration is elaborately considered in an opinion delivered by Justice Brewer. Its reasoning and logic is of such con- clusive character that I give it space here. He says: "Now, the question is whether the court can compel this defendant, doing the telephone busi- ness of this city, to establish communication with any other individual or company than that permitted by its license from the patentee. I believe fully in the saoredness of property, but I think all property stands upon an equal basis, whether that property consists of gold dollars in your pocket, real estate, or the ownership of a patent. There is no peculiar sanctity hovering over or attaching to the ownership of a patent. It is simply a property right, to be protected as such. Starting from that as a basis, while every property owner may determine for himself to what he will de- vote his property, yet the moment he puts that property into what perhaps may, for lack of better expression, be defined as 'the channels of com- merce,' that moment he subjects that property to the laws which control commercial transactions. A telephone system is simply a system for the transmission of intelligence and news. It is perhaps in a limited sense, and yet in a strict sense, a common carrier. It must be equal in its deal- ings with alL It may not say to the lawyers of St. Louis, ' my license is to es- tablish a telephone system open to the doctors and the merchants, but shut- ting you out, gentlemen of the bar.' The moment it establishes a telephone system here, it is bound to deal eqxially with all citizens in every depart- ment of business, and the moment it opens its telephone system to one telegraph company, that moment it puts itself in a position where it was bound to open its system to any other telegraph company tendering equal pay for equal service. So my conclusion is, notwithstanding the terms of 1 Union Tel. Co. v. New England L. J. 363; State v. Telephone Co., 23 Tel. & Tel. Co. (Vt), 17 AtL Eep. Fed. Eep. 539. 1071 ; State v. Telephone Co., 22 Alb. 65 1026 SPECIAL EEMEDIBS. [§§ 843-84:5. this license, which seemed to inhibit it from dealing or giving its telephonic privileges to any other telegraph company than the Western Union, the moment it establishes its telephonic system here, that moment it com- pelled itself to respond to the demands of any telegraph company or any individual in the city tendering to it equal pay for equal privileges." State V. Telephone Co., 33 Fed. Rep. 539. Sec. 843. May Ibe compelled to move poles at direction of municipal authorities. — Such companies, being subject to municipal control with respect to the use of the public streets, may be compelled to remove poles inside the curb in order to facilitate the laying of a pavement in the street. They cannot question the order providing for the making of the improve- ment by paving in the absence of fraud, corruption or oppres- sion.' IV. Canal Companies. Sec. 844. Canal companies are quasi-public corporations. What has been stated with respect to the duties of railroad companies that are public in character, and the enforcement of the performance thereof, applies with equal force to' canal companies. "Wherever there is a specific duty imposed by law upon such companies, its performance may be enforced by mandamus. There is in fact no other remedy that is adequate. Thus, it may be compelled to construct a bridge over a ditch where such power is vested in them.^ V. LoG-DEiviNG Companies. Sec. 845. Operating under charters — Quasi-public cor- porations. — In many states companies are organized for the purpose of driving logs upon streams navigable for such pur- pose, having obtained a franchise to build dams upon and use the streams for such purpose. The improvements thus made are presumably in the interest of navigation, and consequently a public use. This has been so held." Hence it follows that such companies may be compelled to operate their works and iMonongahela City v. Monongar ^ Fresno County v. Fowler Swift hela Electric L. Co., 12 Pa. Co. Ct. Canal Co., 68 Cal. 359. Rep. (Pa. Com. PL) 539. 3 Oohn v. Wausau Boom Co., 47 Wis. 314. §§ 846-848.] PRIVATE COEPOEATIONS PUBLIC DUTIES. 1027 exercise their franchise in the interest of the public; and if they fail in such respect, or if they grant special favors to any one who is obliged to rely upon the use of such stream to carry its logs to market, mandamus will compel the performance of their public duties and the operation of their works in the pub- lic interest. They cannot use the works in such a manner as to facilitate the delivery of logs to the factory of one person or the delivery of particular logs, excluding equal facilities with respect to the logs of others. VI. Steeet Kaileoads. Sec. 846. Street railroad companies are quasi-public cor- porations. — Street railway companies quite generally receive their franchises from municipal authorities, though in some states they may organize under general laws, the franchise com- ing directly from the state. By using the streets within a mu- nicipality, they become subject to municipal control with respect to the manner of using the streets, both as to the matter of con- struction and operation. The performance of those duties which it owes to the public, among which is that of operating its road in accordance with the provisions of ordinances of the city pursuant to which its road was constructed, may be en- forced by m/junda/mus} Sec. 847. Compelled to pave portions of street. — Hence such a corporation may be compelled to pave that portion of a street which it occupies between its rails and for a prescribed distance outside.^ Sec. 848. Poverty as an excuse.^ It was held, however, by the supreme court of Michigan that it was a sufficient excuse on the part of such a company that it was absolutely without funds or credit. The general principle that the writ will not issue where it will prove unavailing was applied; that wherever it is apparent that the defendant is unable to perform the act sought to be enforced, the writ, as a general rule, will be denied ; 1 City of Potwin Place v. Topeka 2 state v. Railway Co., 39 Fla. 590. Ey. Co., 33 Pac. Eep. 309. 1028 SPECIAL EEMEDIES. [§ 849. that in such a case a proceeding in the nature of quo warranto is the proper remedy and not mandamus} Sec. 849. PoTcrty as an excuse on the part of other quasi- public corporations. — Poverty as an excuse for the perform- ance of duties by public corporations was urged in the case of a railroad company where the writ was applied for to compel it to put its road in repair. It there appeared that the corpora- tion was not only without funds, but also that it had not in its power any means of raising the necessary funds. There- fore, it thus appearing that it was not within the power of the corporation to perform the duty it required, the writ was with- held.^ To the same effect is the conclusion of the supreme court of New Jersey." Many other courts do not recognize the want of funds or the poverty of the corporation as a suffi- cient excuse for failure to perform public duties. If such a rule should prevail it would amount to an absolute surrender of the public right in most cases, as it is a matter- of common knowledge that most of the railroad companies, both ordinary and street, are indebted beyond their ability to pay. On the other hand, where such is the fact there is no means of enforc- ing the mandate except by proceedings in contempt. Proceed- ings in the nature of quo warranto accomplish only the forfeit- ure of the franchise. It is probable, though, that in most instances, if the mandate should issue, the compan}'^ or those who hold its bonds would comply with its terms, realizing that in case of failure forfeiture in the other proceeding would be declared. It was stated by the supreme court of Kansas * that where a railroad company owning a short line of road is wholly insolvent and has no cars or engines with which to operate it and no funds for the payment of the expenses, and the road has been abandoned for several months, and it cannot be operated except at a great loss, mandamus would not issue to compel the company to repair or replace the road. Such an order would be of no public benefit. It was held, however. City of Benton Harbor v. St. Jo- 3 Silverthorne v. Railroad Co., 33 seph & B. H. St. E. Co. (Midi.), 60 N. N. J. L. 176. W. Rep. 758. 4 state v. Dodge City M. & T. Ry. - Ohio & M. R. Co. V. People, 120 Co. (Kan.), 36 Pac. Rep. 755. Ill 200. §§ 850, 851.] I-EIVATE COEPOEATIONS PTTBLIC DUTIES. 1029 by the supreme court of Georgia ^ that it is not an abuse of dis- cretion to issue mandamus to compel a canal corporation to- put its canal in navigable condition, though the answer of the- corporation states that it has no funds nor any means of obtain- ing funds to meet the necessary expenses, and also that if the- canal was placed in navigable condition it would not be profit- able to operate it. Sec. 850. May be compelled to adjust or protect wires so as not to interfere with telephone wires. — A street-car com- pany may be compelled by m,andamiis, at the instance of a tele- phone company having a prior license or franchise, to obey an ordinance requiring it to string guard-wires to its trolley- wire, in places where it must cross other wires, so as to prevent dam- age by its breakage, on a showing that such former company is in special danger as to the life of its servants and the integ- rity of its property in case of such breakage, it also appearing that breakage cannot be prevented, and that such guard-wires are the approved and only safeguards in such cases.^ Sec. 851. May toe compelled to move its poles at direction of municipal authorities. — Such a company may be com- pelled to move its poles pursuant to directions of the city council^ m order to facilitate the making of improvements in the street by the city. It cannot be heard to question the wisdom or pro- priety of the order requiring removal of the poles or the order providing for the improvement.' 1 Savannah & O. Canal Co. v. Shu- 3 Monongahela City v. Mononga- man, 91 Ga. 400. hela Electric L. Co., 18 Pa. Co. Ct. 2 State V. Janesville St. R. Co., 87 Eep. 529. Wis. 73. CHAPTER 36. MANDAMUS TO PRIVATE CORPORATIONS PROPER. Sec. 853. Courts will not interfere with internal regulations of private corporations. , 853. Specific duties will be enforced. 854. Elections — Compelling hold- ing of. 855. Inspection of books and papers. 856. Writ will not lie to gratify mere curiosity. 857. Subject continued. 858. Discretion exercised in allowing the writ. 859. Demand and refusal. 860. Transfer of stock. 861. Exceptions to the rule. 862. Issue of stock. 863. Delivery of corporate books and papers to proper custodian. 864. Affixing corporate seal. 865. Admission to society. 866. Reinstatement of members. 867. Merits of controversy not open to review. 868. Whether act is a violation of by- laws, a question for the courts. 869. By-laws must be reasonable and germane to the object of the society. 870. Procedure. 871. Charges must be specific and record kept. 873. Remedy by appeal within the order. 873. Society must act within its ju- risdiction. 874. Visitorial powers of the state. 875. Breach of contract in absence of moral delinquency not suf- ficient to expeL Sec. 876. Suit in equity to dissolva 877. Where the by-laws do not con- tain provisions for the deter- mination of contract relations, courts are open. 878. Grand lodge to determine con- flicting rights of representa- tion. 879. Religious corporations. 880. Ministers unlawfully deposed. 881. Execution of trusts. 883. Mutual benefit societies — Ex- pulsion of members. 883. Notice, when required. 884. Effect of failure of jurisdiction upon rights of members. 885. Grounds for expulsion or for- feiture of contract rights. 886. Effect of changes in constitu- tion or by-laws. 887. Waiver of forfeiture. 888. Effect of course of dealing. 889. Effect of subsequent assessment after default. 890. Waiver of non-performance of other conditions. 891. Waiver of forfeiture by incon- sistent acts. 893. Effect of non-payment of assess- ments when due to uncon- trollable causes. 893. Reinstatement — Effect upon contract. 894. Remedies of members. 895. Jurisdiction of superior body, incorporated under laws of another state, to make assess- ments. §§ 852-854.J PEIVATE COEPOEATIONS PEOPEE. 1031 Sec. 852. Courts will not interfere with internal regula- tions of private corporations. — "With respect to purely private corporations it is a recognized rule that the courts will not in- terfere with their internal regulations in regard to the enforce- ment of their rules. If members have grievances, the law ordinarily furnishes an adequate remedy by action. It cannot be said that this rule is absolute. In cases of manifest wrong, resulting in substantial injury, the courts, under the general supervisory power of the state exercised through them, will in- terfere.^ Sec. 853. Specific duties will be enforced. — In so far as specific duties are required of them by the terms of their char- ters, or by general provisions of law, performance will be en- forced by mandamus to the same extent as public duties will be enforced on the part of public corporations or those of a ^Mfflst-pablic character. Such duties, so far as they relate to the public, are in fact public duties, or duties which they owe to the public. Thus, where it is made the duty of any one such corporation to submit its books and affairs to the inspec- tion of public officers,^ or to furnish a list of their stockholders, together with their places of residence,' or where the corpo- rate authorities of a hospital are required to furnish a certifi- cate of death, or to amend a certificate issued according to the facts,^ mandamus will issue to compel the performance of such duties. Sec. 854. Elections — Compelling holding of.— It is usu- ally provided in the charters of such corporations, sometimes by general laws, and often by the provisions of by-laws, for the holding of annual meetings for the election of officers; and where such meetings are not held on the day designated therein, as well as where the meeting is to be held pursuant to a notice iFreon v. Carriage Co., 43 Ohio St. 3 People v. State Ins. Co., 19 Mich. SO; Mount Moriah Cemetery Ass'n v. 393. Commonwealth, 81 Pa. St. 235; In- 3 Fireman's Ins. Co. v. Baltimore, surance Co. v. Baltimore, 23 Md. 296; 33 Md. 396. Lamphere v. Grand Lodge, etc., 47 < People v. German Hospital, 8 Abb. Mich. 439; Bates v. Detroit Mut. Ins. N. C. 333. Co., 47 Mich. 646; Barrows v. Massa- chusetts Med. Soc, 13 Cush. 403. 1032 SPECIAL EEHEDIES. [§§ 855, 856. duly given by certain officers thereof, provision is made for the calling and holding of a meeting to elect officers. In such cases mandamus is the appropriate remedy in behalf of a stock- holder to compel the proper officers to call and hold an elec- tion.^ And it seems that the application for the writ need not be supported by a previous demand and refusal.^ Seo. 855. Inspection of books and papers. — Tn some states the statute expressly authorizes an inspection of the books and records of private corporations by members or stockholders. It has been stated, and I think quite truly, that such books are the common property of all the stockholders, though of neces- sity placed in the charge of one of its members or other per- son designated by the corporation.' Therefore such right of inspection must exist independent of statutes authorizing it.* Stockholders have such right at common law.^ That manda- mus is the appropriate remedy at the present day would seem to be too clear for argument. There is in fact no other ade- quate remedy. An action for damages is not an adequate rem- edy. In the language of the Louisiana court : ^ "A suit for damages might last for a long time, and petitioner suffer great loss by being debarred from an examination of the books. He does not ask for damages, but for the exercise of a right. If he has the right, he ought to have the exercise of it as soon as possible ; for the deprivation of his right cannot perhaps be accurately estimated in damages. It may be years before the amount of the damages can be known." Neither is a bill in equity, in the absence of allegations of fraud or insufficient dis- tribution of assets, a proper remedy. The reasons above stated are clearly applicable.' Sec. 866. Writ will not lie to gratify mere curiosity, — It has been stated that the writ will not be granted to gratify 1 People V. Cummings, 72N. Y.433; 5 in re Sage, 70 N. Y. 220; Lewis State V. Wright, 10 Nev. 167. v. Brainard, 53 Vt. 519: Huyler v. 2 Mother v. Primrose, 23 Md. 483. Cragin Cattle Co., 40 N. J. 392. » Phoenix Iron Co. v. Com., 113 Pa. « Cookburn y. Union Bank, 13 La. St. 563. Ann. 289. 4 People V. Throop, 12 Wend. 183; 'See also Stettaner v. New York, Com. V. Phoenix Iron Co., 105 Pa. St. etc. (N. J.), 6 Atl. Rep. 303. Ill; Foster v. White, 86 Ala. 467. § 85Y.] PEIVATE COEPOEATIONS PEOPEE. 1033 mere curiosity. That the writ shall not go at the caprice of the curious or suspicious. That either some property rights of the stockholders must be involved, or some controversy exist, or some specific and valuable interest be in question to settle which an inspection of the corporate records becomes neces- sary. Conceding that the first proposition correctly states the law, the question remains, What may or may not be determined curiosity ? Is it curiosity for a stockholder to seek to ascertain how his property is being dealt with, to ascertain the value of his interest or its nature and extent ? Such of the stockhold- ers as are in charge of the books have access to them at all times, and other stockholders in favor may be granted the same privilege. "Where is the reason that would deny an equal right to any one ? If it be said it might be injurious to the interest of the corporation to have one of its proprietors know its true condition, the answer might well be that it cannot be any more injurious that all should know its condition than a favored few, interested in preserving their own management and con- trol of the corporate affairs. In many corporations stockhold- ers are liable to an amount proportionate to their stock to the creditors of the corporation. Can it be possible that their cu- riosity in seeking to know the extent of their possible liability, or in preventing possible mismanagement which may create their liability, is of such a character that a valuable right shall be denied them ? It may not be out of place to suggest that if stockholders had more freedom in having access to the cor- porate books, a less number of corporations would have been wrecked, and less of misery and poverty caused by the embez- zlement of corporate officers. It has, however, been decided by honest courts that a desire to ascertain whether the corpo- rate affairs have been properly conducted by the directors and managers is not such a curiosity as will preclude the right to enforce inspection by ina/iidamv,s} Seo. 857. Subject continued .— The case oi People v. Walker, 9 Mich. 328, is often cited as being contrary to the position assumed by the I^ew Jersey court. I cannot so construe the iHuyler v. Cragin Cattle Co., 40 N. J. Bq. 393; Deaderich v. Wilson, 8 Baxt. (Tenn.) 108. 103i SPECIAL EEMEDIES. [§ 858. opinion in that case. The demand there was not made at the office, nor any reason or excuse given for not making it there. The only remark that could possibly be construed as evidenc- ing the position contended for, is that which states in substance that no case had been found which enabled a corporation to gratify mere idle curiosity; that the party asking the writ must have some interest at stake which renders the inspection necessary. In the separate opinion of Judge Christiancy it is stated : " The relator appears to have been a large stockholder in the company, and has sworn that he desired to inspect and have access to the books, records and papers, and to ascertain and determine his rights, duties, privileges and liabilities as such stockholder, and had the application been made at the proper time and place I am not prepared to saj'^ it could be treated as if made to gratify an idle curiosity." Sec. 858. Discretion exercised in allowing the writ. — Some courts lay stress upon the element that the court is invested with discretion in allowing the writ. For instance, one court, but not a court of last resort, thus states the rule : " The ap- plication is addressed to the sound discretion of the court. The reasons for granting it should be clear and cogent. To hold that every person who holds himself to be a holder of stock is at liberty to demand an examination of the transfer books when and as often as he pleases, and if refused to apply for a raandamus to enforce an absolute right, would be to es- tablish a rule highly prejudicial to the interests of all corpora- tions and their stockholders. The power of the court should be exercised in such cases with great discrimination and care." ^ How or in what manner the interests of the corporation might be prejudiced the learned judge does not state, and why ex- treme caution should be exercised in permitting one of many proprietors of a corporation to ascertain its condition, when he has been refused the right, is not clear to my mind, nor does the learned judge make it clear. There can be no question but that, in the exercise of the discretion vested in the courts, where it appears, or can with reasonable certainty be inferred from what is made to appear, that the purpose of the inspec- 1 People V. Lake Shore & M. S. R Co., U Huu, 1. §§ 859, 860.] PRIVATE COEPOEATIONS PEOPEE. 1035 tion demanded is an improper one, and with the intent to make an improper use of the books, the court may very properly refuse to aid the relator, and may refuse him the writ.^ Sec. 859. Demand and refusal.— The rule is undoubtedly correct that there must first be a demand and refusal to author- ize the allowance of the writ, and that such demand must be made at a reasonable time and at the proper place, which ordi- narily is where the books are in custody.^ The mere fact that it is convenient to the book-keepers and managers is not suffi- cient ground on which to base a refusal.' Sec. 860. Transfer of stock.— The courts of this country quite generally at an early day, when the remedy by mcm- damus was much more restricted in its nature and purpose than it is at present, concluded that the writ would not lie to compel the proper officer to transfer stock of a shareholder upon the books of the company. Since that time, relying upon the precedents established, many of them, and others where the question became one of first impression, have adhered to the original holding. The reason upon which their conclu- sion was based is that the shareholder had an adequate rem- edy at laAV against the corporation for the value of the stock claimed.* From the fact that so many courts have decided that such remedy is an adequate one, it would be idle to con- tend to the contrary. Yet, it may not be amiss to suggest that quite generally in other respects Avhere a duty is imposed, it has been very commonly held that an action for damages against the officer is not an adequate remedy. Again, the right of a stockholder to vote at corporate meetings depends upon the registry of his stock. Also, where shareholders are assessable, the liability is imposed upon those who appear to be such from the corporate books. The stock, from the char- > Bosenf eld v, Einstein, 40 N. J. L, 479. 2 People V. Walker, 9 Mich. 328 Com. V. Phoenix Iron Co., 105 Pa. St 111. 3 Com. V. Phoenix Iron Co., 105 Pa, St. 111. ^Yobey v. Harris, 54 Conn. 274 Georgia Bank v. Harrison, 66 Ga. 696; Kimball v. Union Water-works, 44 Cal. 173; Stookpole v. Seymour, 127 Mass. 104; Baker v. Marshall, 13 Min. 177; Freon v. Carriage Co., 42 Ohio St. 30; State v. Warren F. & M. Co., 32 N. J. L. 439. 1036 SPECIAL EEMKDIES. [§ 861, acter of the enterprise or from other causes, may not have a marketable value ; hence the inquiry in an action would involve an investigation into the actual condition of the company, or the stock may confessedly have but little value, perhaps not any. The principal object of sale may be to avoid further lia- bility. In such cases it would seem that an action for value of the stock would not afford an adequate remedy. Courts of re- spectable authority hold that such transfer may be compelled by mandamus, especially where there is no dispute with re- spect to the ownership or right of possession of the stock.' It would seem that some of the courts do not hold that the writ will not lie in all cases, or that an action for value of the stock is an adequate remedj^ They only so hold where the legal right of the petitioner to the possession of the stock and to the right of transfer is not clear and unquestionable ; and such un- doubtedly is the better rule and best in accord with the prin- ciples which underlie- the granting of the writ. If there be doubt as to what his legal right may be, involving the neces- sity of litigation to determine it, mandamus ought to be with- held, upon the well settled principle that the relator must show a clear right. The principal office of mandamus is not to in- vestigate, but to command and execute. The office of the writ is not the trial of mere questions of property.^ There are courts which hold that a suit in equity to compel the transfer of cor- porate stock is the most appropriate and complete remedy j that therein can be determined the rights of all parties.' Sec. 861. Exceptions to the rule. — -An exception to the rule as first stated has been recognized where the sale of the stock has been made by an officer upon execution or othqr legal process ; this on the ground that the sheriff is performing a ' People V. Goss Manuf. Co., 99 111. 2 Birmingham Fire Ins. Co. v. Com- 355; State v. First Nat. Bank, 89 Ind. mon wealth, 92 Pa. St. 73; Townes v. 303; People v. Crockett, 9 Cat 113; Nichols, 73 Me. 515; Murray v. 8te- Townsend v. Mclver, 3 S. C. 35; Nor- vens, 110 Mass. 95. ris V. Irish Land Co., 8 El. & Bl. 513: 3 Cushman v. Thayer Mfg. Co., 76 Goodwin v. Ottawa & P. Ry. Co., 13 N. Y. 365; Walker v. Detroit Tran- U. C. 354; Slemmons v. Thompson sit Ry. Co., 47 Mich. 338; Iron R. R, (Oreg.), 31 Pac. Rep. 514; Swift v. Co. v. Fink, 41 Ohio St. 41. State (Del.), 6 Atl. Rep. 856. §§ 8,62, 863.] PEIVATE C0EP0E4.TI0NS PEOPEB. 1037 public duty.i So, also, it has been held that the writ may be granted to require a corporation to enter upon its books the probate of a will of a deceased shareholder, disposing of his stock, leaving the question of the right to such stock to be shown by the corporation on its return to the writ.^ Sec. 862. Issue of stock.— Where a subscriber is entitled to have certificates of stock issued to him, and there is no dis- pute as to his right, it would seem, upon principle, mcmdamm would issue where the ofiicer capriciously refuses. Whether such an officer may be compelled to issue new stock upon sur- render of the old must depend to a great extent upon the pro- visions of the particular statute or by-law or resolution under which the right is claimed. If there is no legal duty on the part of the officer to do so, or his duty is not clear, then the writ will not issue. If his duty is clear, and his refusal will result in pecuniarj^ injury for which there is no other adequate remedy, the writ ought to issue.' Sec. 863. Delivery of corporate books and papers to proper custodian. — Mandamus is the appropriate proceeding to com- pel officers of a corporation, Avhether public or private, upon the expiration of their terms of office, to turn over to their successors the books, records, papers and paraphernalia pertain- ing to the office.* It appears also that the Avrit will issue for such purpose upon application of the corporation against per- sons who have usurped an office therein, claiming to have been duly elected, where such election is sought to be maintained by votes which are illegal in fact. In other words, that ques- tion may be determined in such a proceeding. It is immaterial that the rule might be otherwise, in case an officer claiming to have been elected should institute the proceedings, claiming the 1 Bailey v. Stockholder, 38 Ga. 259; » State v. St. Louis Paint Mfg. Co., State V. Jefferson ville Bank, 89 Ind. 21 Mo. App. 526. 302; State v. Molver, 2 S. C. 25; State * Fasnaoht v. German, etc. Assoc, V. Harrison, 66 Ga. 696. See, how- 99 Ind. 133; American Ey. Frog Co. ever, Durham v. Monumental M. Co., v. Haven, 108 Mass. 398; State v. Gall, 9 Oreg. 41. 3 Yroom {N. J.), 285; Warner v. My- 2Eex V. Worcester, etc. Canal, 1 ers, 4 Oreg. 72; St. Luke's Church v. Man. & R. 529. Stock, 7 Cush. 226. 1038 SPECIAL REMEDIES. [§§ 864, 865. right to the office.^ The ^vnt, however, will not issue against one who is wrongfully in possession without color or claim of right.^ Sec. 864. Affixing corporate seal. — The affixing of a corpo- rate seal is a mere ministerial act, and, when the duty is clear and proper, the officer may be compelled to affix it to any docu- ment, certificate or deed, where such is essential to its validity, or to give it character and force as evidence or otherwise.' Sec. 865. Admission to society. — IfanrJamus is the appro- priate remedy to compel the admission of one having a clear legal right to membership in an incorporated society. In fact, Avhere one demands admission to the enjoyment of a franchise to which he is presumptively entitled, his exclusion can only be justified by facts repelling the presumption that he is duly qualified for admission, or by extraneous facts showing that if his application was granted there are subsisting causes making a clear case for immediate expulsion.^ These causes must be such offenses as are recognized by the common law as cause for expulsion. They are, in general : 1. Violation of duty to the society as a member of the corporation. 2. Offenses as a citizen against the laws of the country. 3. Breach of duty in respect alike to the corporation and the laws.* In a leading case, ad- mission of a duly-licensed physician to membership in a medi- cal society was refused upon the ground of the publication by the relator of a professional advertisement, which was inserted in one or more of the daily papers some two years prior to his application for membership; it being charged that the print- ing of this notice was an act of empiricism, and in conflict with the code of ethics adopted by the society. It was said : " The act of the relator was neither immoral nor illegal. It was no violation of the by-laws, for, as to him, they were wholly in- operative. It was no present cause for exclusion, for the pub- 1 American Ry. Frog Co. v. Haven, E. (N. S.) 366. See People v. Black- 101 Mass. 398. hurst, 11 N. Y. S. 675. 2 Ex parte HoUoway , 30 Eng. Law < People v. Medical Society, 33 N. Y. & Eq. 240. 187; Ex parte Paine, 1 Hill", 665. SRexv. Windham, Co wp. 377; King 5 King y. Mayor of Liverpool, 3 V. University of Cambridge, 1 Black. Burr. 732; People v. Medical Society, W. 547; Queen v. Kendall, 1 Ad. & 32 N. Y. 187. ] PEIVATE COEPOEATIONS PEOPEE. 1039 lieation of the objectionable article bad been discontinued two years. When he applied for admission he proposed to become bound by the by-laws, and this the society refused to permit, for the sole reason that he had not observed them before they became rules of conduct for him. Where there is no law there is no transgression. The relator, therefore, had been guilty of no legal wrong which could bar his claim to the franchise." The court announced the following rule: "When a party hav- ing a clear presumptive title applies to be admitted to the ex- ercisfe of a corporate franchise, the application should not be denied, unless the right of immediate expulsion be plain and unquestioned. The general policy of the law is opposed to sharp and summary judgment, where the party whose rights are in jeopardy has no opportunity to be heard in his own de- fense." ' Sec. 866. Reinstatement of members. — The particular question, when and under what circumstances mandarnius will issue to reinstate a member of a society, is one not only of great importance, but one also that is not easy to determine. So much depends upon the particular character of the society, whether benevolent or otherwise, upon the provisions of statute where one exists, and upon the constitution and by-laws which the society has framed, that definite rules as applicable to all cannot be stated. There are some general rules or propositions of law, however, which are applicable to all. That mandamus is the proper remedy in case of illegal expulsion is conceded. That the only grounds of expulsion are those previously stated, to wit: 1. Violation of duty to the society as a member thereof. 2. Offenses as a citizen against the laws of the coun- try. 3. Breach of duty in respect alike to the society and the laws.^ Membership in societies is voluntary. They usu- ally operate under a constitution and code of by-laws ; so that one upon receiving the rights and privileges incident to mem- bership also assumes the corresponding duties and burdens, and subjects himself to the reasonable rules and regulations which have been framed and adopted by the society. To him they 1 People V. Medical Society, 33 N. Y. 2 People v. Medical Society, 33 N. Y. 187. , 187. 1040 SPECIAL EEMEDIES. [§§ 867, 868. are law ; and where they provide for and designate causes for expulsion he is equally bound, and cannot be heard in the courts to contend that such causes were insufficient. Seo. 867. Merits of controversy not open to review. — The merits of the controversy are open to review only in the man- ner provided by the constitution and by-laws of the society. "Whether the evidence was or was not sufficient to warrant the extreme punishment is a matter of no concern to the courts. The member has voluntarily assented that such tribunal as the society provides shall determine his rights and his status in the respect named, and he cannot call upon another. These prin- ciples are elementary.^ Yet it must not be inferred that the conduct and operations of such societies are entirely independ- ent of supervision by the state. As we have seen, the state may exercise a supervisory control over all corporations, and through the courts keep them within the limits of their legiti- mate powers;^ and hence when the proceedings are not in accordance with the by-laws of the society, the courts will by mandamus reinstate a member unlawfully expelled.' Sec. 868. Whether an act is a violation of by-laws is a question for the courts.— The question whether the act or conduct is a violation of the by-laws is one that the society cannot conclusively determine for itself. It must be such in fact. Thus, where the constitution makes "slander against the society " by a member an offense for which he may b« fined or expelled, it will be held that an offense something analogous to the common law of slander as applicable to individuals is intended ; and in a proceeding to enforce such a provision, un- less the words charged to be slanderous are set forth, it cannot be known whether there is any jurisdiction to make the in- quiry.* Where the constitution and by-laws contain no defini- 1 Society v. Commonwealth, 52 Pa. Roehler v. Mechanics' Aid Society, 32 St. 125; State v. Mil. Chamber of Mich. 86; Hussey v. Gallagher, 61 Commerce, 47 Wis. 670. Ga. 86; Sibley v. Carteret Club, 40 2 See also State V. Georgia Medical N. J. L. 295; Fuller v. Plainfleld Society, 38 Ga, 608; People v. Medical Academic School, 6 Conn. 533. Society, 32 N. Y. 187; State v. Mil. « People v. Mechanics' Aid Society, Chamber of Commerce, 47 Wis. 670. 33 Mich, 86. sSperry's Appeal, 116 Pa. St. 391; §§ 869-871.J PEIVATE COEPOEATIONS PEOPEE. 1041 tion of offenses against the society or provisions for imposing penalties, a member thereof cannot lawfully be suspended for non-payment of a fine imposed, and he may be restored to membership by mandamus} Sec. 869. By-laws must be reasonable and germane to tne object of the society.— By-laws must not only be reasonable, but they must be germane to the object of the society ,2 and must be such as are not against public policy or in violation of the law of the land.^ Therefore the courts, under the visitorial power of the state over such corporations, may determine the validity of their by-laws.* Sec. 870. Procedure.— "Where authority is vested in the corporation or society to expel a member, such authority can- not be delegated to the directors, trustees, or a committee. The expulsion must be the act of the corporation or society, and the grounds upon which the act is based must be found to exist by it.^. The member against whom the proceedings are taken is entitled to notice and opportunity of being heard in his defense, and where notice has not been given, and the member has been expelled without an opportunity of being heard, mandamus may be resorted to to reinstate him.* Sec. 871. Charges must be specific and record kept. — The charges and notice thereof must be specific. A record must be kept of the proceeding, and it must show upon its face the exact cause of expulsion and all of the proceedings necessary to au- thorize action. These should not be left to be shown by parol evidence. There should be means of determining the facts by the record itself in case they are brought in question.'' 1 Erd V. Nat. Aid & Relief Assoc, * State v. Chamber of Commerce, 67 Mich. 233. See, however, Dickin- 20 Wis. 63; Commonwealth v. St. son V. Chamber of Commerce, 39 Patrick's Ben. Soc, 3 Huu, 441. Wis. 45. " Ee Lacey v. Neuse Eiver Nav. Co., 2 Com. V. St. Patrick's Benevolent 1 Hawks, 274; Com. v. German So- Society, 2 Hun, 441. ciety, 15 Pa. St. 311; Wash. Ben. So- 3 People V. Medical Society, 24 Barb, ciety v. Becher, 20 Pa. St. 435. 370. ' People v. Mechanics' Aid Society, estate V. Mil. Chamber of Com- 33 Mich. 86. merce, 47 Wis. 670. 66 1043 SPECIAL EEMEDIES. [§ 872. Sec. 8T2. Remedy by appeal within the order. — The con- stitution and by-laws of fraternal and benevolent associations quite generally provide for appeal from the local lodge or so- ciety to a superior lodge or body of the same order by a per- son who maj' feel aggrieved at the action or determination of the local body. It is quite generally held that mandamus will not lie to reinstate an expelled member until after he shall have availed himself of all the remedies afforded by appeal within the order.' It may be said that the supreme court of California have gone to extreme lengths with respect to this question, and assumed a position which practically would make such corporations independent of and beyond the supervising control of the state through its courts. It is in fact held that the by-laws of such an association are not only binding upon members, but their reasonableness and Viilidity also, as being against public policy or the law of the land, is beyond investi- gation or determination of the courts. They say what might be bad or unreasonable as a by-law, as being against common right, may be good as a contract; and a man may part with or waive a common-law right voluntarily, of which it would be impolitic and unjust to deprive him by a by-law passed without his assent. Thus, as they state, a member who has signed the by-laws of a lodge which provide that a member may be expelled for contempt in failing to appear before a committee to stand trial upon charges, and that in such case the report of the committee shall be conclusive, waives any right of objection to the report of the committee by inten- tional default in refusing to appear before it to answer to the charges made against him.^ As we have seen, other courts do not go so far. The supreme court of Texas has taken ad- vanced ground with respect to the proposition that where the right of appeal is given within the order it must be pur- sued, in holding that mandamus Avill not lie to compel the reinstatement of an expelled member who has taken no appeal 'Levy V. Magnolia Lodge, I. O. O. 70; State v. Grand Lodge of K. P. F., 110 Cal. 297; Lafond v. Deems ot (N. J.). 23 Atl. Rep. 63. al., 81 N. Y. 507; Dolan v. Court of 2 Levy v. Magnolia Lodge, I. O. O. Good Samaritan, 128 Mass. 437; F., 110 Cal. 297. Chamberlain v. Lincoln, 120 Maso. § 873.] PEIVATE COEPOEATIONS PEOPEE. 1043 from the action of the board, though the order of expulsion may be void.^ Seo. 873. Society must act within its .jnrisdiction.— In an- other jurisdiction the rule is stated that mandarmis will not lie to compel the reinstatement of a member expelled for reasons of discipline, Avhere the remedy by appeal to a higher tribunal of the society has not been exhausted, and it does not appear that the judgment of expulsion was void for want of jurisdic- tion.2 In still another it was stated the want of jurisdiction does away with the obligation to seek relief by appeal, even when required by the constitution of a lodge, in other proper cases. The obligation to appeal is not imposed when the judg- ment is void for want of jurisdiction. The duty of an expelled member to exhaust by appeal or otherwise all the remedies Avithin the organization arises only where the association is acting strictly within the scope of its powers.' This would seem to be the better rule and one more in consonance with well-settled principles of law and justice. What may or may not be within the jurisdiction of such tribunals must depend upon the character, object and purpose of the particular society as well as the proAisions of its charter and by-laws to a con- siderable extent. Thus, it is held that a failure to serve upon the member the charges as made is a substantial jurisdictional defect in the proceedings taken for expulsion, and will render them void unless such omission is in some manner obviated.* So also a total absence of evidence to support the sentence of suspension or expulsion has the same force in such a mandamus proceeding as an absence of jurisdiction to make any inquiry at ail.^ The absence of a written charge upon the records of the society showing an offense within the provisions of the constitution and by-laws is a substantial jurisdictional defect ; * and so is the failure to give notice to the accused member and 1 Association v. Benson, 76 Tex. * People v. M.M. P. Union, 118 N.Y. 552; Benson v. Sacramento Benefit 101. Ass'n (Tex.), 21 S. W. Rep. 562. s People v. New York Produce Ex- 2 People V. Woman's Catholic O. change, 149 N. Y. 401. of P., 162 III. 78. " People v. Mechanics' Aid Society, 3 Supreme Lodge K. of P. v. Esk- 22 Mich. 86. holme, 59 N. J. L. 355. See also Vivar V. Knights of Pythias, 52 N. J. L. 455. 1044: SPECIAL EEMEDIES. [§ 873. not giving him an opportunity to be heard.' So also where the proceedings are without clear and express authority pro- vided by the constitution and by-laws, as well as where the means used are oppressive and arbitrary ; "- and where it appears that the expulsion was without sufficient cause, and is mani- festly the result of malice and a predetermination to expel the member regardless of a sufficient cause, mandamus will issue.^ Jurisdiction is also wanting where a member has been dis- franchised for violating a rale in conflict with public policy and the general law of the land.* It is often stated that the lodge or society, in determining such matters, acts in a judicial capacity. They are indeed inferior tribunals, and as such their jurisdiction must affirmatively appear. Thus it is that errors of law must be reviewed ; and where proceedings are not con- ducted in strict compliance with the rules of the order, then it is that jurisdiction is wanting, and, as has been stated, there is no obligation to resort to a remedy by appeal within the order. When a member consents in advance to abide by the rules of the order, and to pursue the -remedy they have pro- vided, such agreement ought not to extend further than to bind him to such observances and such course, when the society has properly respected them and conducted their proceedings in accordance with them. It cannot ignore them in the manner of procedure, and still insist that, as a condition precedent to application to the courts for relief against unlawful action, the member must have observed them. There is good reason for holding that stipulations of the character stated ought not to be held absolutely binding upon the member with respect to the matter of expulsion in societies where the chief purpose is that of insurance. Insurance depending upon membership, the as- sured should receive every consideration that may be necessary to protect his rights, and courts ought not, in such cases, where it is clear that he has been unlawfully and unjustly deprived thereof, conjpel a resort to proceedings that may be unavailing, 1 De Lacey v. Nease River Nav. Co., - State t. Fraternal Mystic Circle, 1 Hawks, 374; Commonwealth v. Ger- 9 Ohio C. Ct. Eep. 364. man Society, 15 Pa. St. 251 ; Lysaght ^ state v. Georgia Med. Soc, 38 Ga. V. St. Louis Operative Stone Masons' 608. Ass'n, 55 Mo. App. 538. * People v. Med. Soc, 24 Barb. 570. § 873.] PRIVATE COEPOEATIONS PEOPEE. 1045 simply on the ground that by agreement they have been made a condition precedent. There are many reasons in favor of the proposition suggested. In the first place, delay that may be very prejudicial is avoided. The member as welL as the beneficiaries wish to know whether he is a member or not, and whether there is any valid insurance. If he has ceased to be a member, then he may desire to obtain insurance elsewhere, and the sooner he makes application the cheaper it will be. In the next place, the mere fact that a member has been ex- pelled, unless for a heinous offense, ordinarily is evidence that there exists a prejudice against him, and upon appeal the power of the local lodge is almost supreme. It may be said so much ought not to be assumed. In reply it may be said that we cannot shut our eyes as to that which daily may be observed. There is again an utter unfitness in the tribunal to determine the matter. The courts would hardly respect a stipulation in a policy that an insured should leave to the judgment of an insurance company the whole question of their liability to pay in case of loss. The company is a party whose interests are adverse. So with respect to so-called benevolent societies, being nothing more than insurance companies. They are in- terested in not paying the loss, and common experience teaches, as will also a resort to the reports of cases in the courts of the several states, that except in rare cases an appeal is a fruitless remedy.^ The rule may be summarized as stated by another, and supported by abundant authority of precedent and princi- ple, as follows : If such a society expels a member, prejudicially affecting his rights, without giving notice of the accusation against him, or, though giving such notice, proceeds against him while insane, or proceeds against him in a manner differ- ent from that prescribed by the by-laws of the association, or inflicts a penalty not permitted by law for the offense charged, or the offense is of such a character that under no circum- stances can justify expulsion, though a remedy by appeal ex- ists, it need not be resorted to.'' J Huston V. Eentlinger, 91 Ky. 383; 2 United Workmen v. Zuhlke, 129 Otto V. Journeyman Tailors' Union, III. 298; Mulroy v. Supreme Lodge, 75 CaL 315; Ryan v. Cudaliy, 157 111. 38 Mo. App. 463; Knights of Pythias 108. V. Eskhohne, 59 N. J. L. 255; Huston "104G SPECIAL EEMEDIES. [§§ .87-i, 875. Sec. 8Y4. Yisitorial powers of the state.— The New York court is in harmony with the court of Illinois with respect to the proposition stated. It is there held that the visitorial super- vision inherent in the courts over the affairs of public or private corporations extends to an investigation of their proceedings for the purpose of keeping them within their chartered powers and protecting the rights of members against usurpation by the governing body to their prejudice. That when a member of a private corporation, such as the New York Produce Exchange, has been suspended or expelled by its board of managers, after a trial by the board on notice and with a full opportunity to be heard, the court, in determining an application for a man- damus to compel restoration to membership, is, in the absence of fraud or collusion, restricted to the question of jurisdiction of the board of managers to suspend or expel the member under the charter of the exchange ; and its by-laws must not only be authorized by the charter, but in addition thereto must state the causes of suspension and expulsion with such reason- able degree of certainty that a member may know the trans- gressions which will subject him to the penalty. Sec. 875. Breach of contract^ in absence of moral delin- quency, not sufficient to expel. — Where the by-laws of such a corporation provided for suspension or expulsion of a member upon a charge of wilful violation of the charter and by-laws or of fraudulent breach of contract, or of any proceeding incon- sistent with just and equitable principles of trade, or of other misconduct, a mere breach or non-performance of a contract unaccompanied by any moral delinquency is not a cause of suspension or expulsion.^ In another case in that state it was urged that before resorting to the remedy by mandamus, it was incumbent upon the relator to exhaust the means within the power of the organization for his restoration, and reference was made to the provision of the by-laws authorizing the society to reinstate an expelled member by a two-thirds majority of all V. Rentlinger, 91 Ky. 333 ; Savannah i People v. New York Produce Ex- Cotton Exchange v. State, 54 Ga. 668; change, 149 N. Y. 401. Medical Society v. Weatherby, 75 Ala. 348. § 876.] PEIVATE COEPOEATIONS PEOPEE. lOiT the members present after having paid all dues and fines stand- ing against him and an extra fine of fifty dollars, and appli- cants for reinstatement must pass an examination the same as those for original membership. It was said : " These provisions seem to have relation to cases of expulsion supported by pro- ceedings lawfully conducted, and where the appeal is to the discretionary power of the society, available for the restoration of an expelled member only as payment by him of an extra fine. There seems to be no adequate remedy provided by the by-laws for a case like the present one, where the remedy is founded upon the alleged right of restoration, subject to no fine or to examination as are applicants for membership. The ex- • pulsion of the member was held to be illegal for want of juris- diction in not giving the proper notice.^ Sec. 876. Suit in equity to dissolve. — An action in equity was brought to dissolve a benevolent association, on the ground that the association was divided into factions and its usefulness had ceased to exist. By the constitution and by-laws of the association provision was made for the redress of grievances and for the punishment of parties offending, and it was within the power of the association to suppress conduct of the kind complained of. An appeal was also authorized to a higher tri- bunal. No complaint had been made. The by-laws provided that the corporation could only be dissolved by a unanimous vote, and that no motion for such purpose should be entertained as long as there remained ten members in good standing. It was held simply that the action was not maintainable ; that plaintiffs were at least required in the first instance to resort to the remedies provided by the rules of the association before seeking the interposition of a court of equity.^ It can hardly be said that this case is authority for the position that resort must first be had in cases of expulsion of a member to all the tribunals provided within the order, where the particular tri- bunal in expelling the member was without jurisdiction. If the language might be so construed it is controlled by what was said in later cases. 1 People V. M. M. P. Union, 118 N. Y. 2 Lafond v. Deems et al., 81 N. Y. 101. 507. 10J:8 SPECIAL BEMEDIES. [§§ 877-879. Sec. S77. Where by-laws do not contain provisions for the determination of contract relations, courts are open. — The doctrine is quite firmly established that in those societies which are benevolent in character, and where to a certain ex- tent there exist contract relations between the society and its members, the rules and regulations of the societj'^ to which the member has subscribed must be resorted to, to determine controversies arising out of such relations, before an action can be maintained ia the courts. Where, however, the rules or laws of the society do not contain any provisions for the deter- mination of such questions, then the courts are open to the member to enforce his demand, to the same extent as against an Individ ual.^ Sec. 878. Grand lodge to determine conflicting rights of representatives. — So also the rights of different persons claim- ing to be representatives of a local lodge are to be determined where the rules so pro\dde by the grand lodge ; and where there are conflicting claims arising out of a claim of forfeiture by a local lodge of its franchise, a suit in equity cannot be main- tained to declare such forfeiture or recover the property until such forfeiture has been duly declared by the supreme tribunal of the order.^ Sec. 879. Eeligions corporations.— The doctrine with re- spect to church societies and religious corporations is in most respects the same as that which applies to benevolent associa- tions. In purely ecclesiastical matters, such as those which relate to church discipline, the courts rarely interfere. Hence, if a member has been expelled after he has been convicted for conduct inconsistent with his rights and duties as a member, or violation of the rules and regulations of the church society, the courts will not reinstate him. The church itself ordinarily is the best judge of those matters.' A distinction is made be- tween membership in a denominational religious society and in a ^ Dolan V. Court of Good Samar- N. Y. 103; German Reformed Church itan, 138 Mass. 437. v. Siebert, 3 Pa. St. 282; State v. He- 2 Chamberlain V. Lincoln et al., 129 brew Corporation, 31 La. Ann. 203; Mass. 70. People v. Aushel Ches Cong., 37 Mich. 3 People V. German, etc. Church, 53 542, § 8Y9.] PEIVATE COEPOEATIONS PEOPEE. , lOi? church corporation organized under provisions of statute. The church itself is a voluntary association, having power to adopt its own rules for admission and discipline and to administer them in its own way, independent of any control by the courts, while free from an intention to injure its members or those not belong- ing to it.^ And if injustice is done a member in respect to such matters of ecclesiastical concern, redress therefor must be had, if at all, by ecclesiastical proceedings under the rules of law adopted by the church for its government and that of its mem- bers. If a member is excluded from the proper enjoyment of the corporate property for religious worship and instruction, he may maintain an action therefor, and in fixing his damages the injury to his feelings may be considered.^ Mandamxis, however, will not lie. Where a church becomes incorporated under statutes, it seems that there is, so to speak, a double society: one temporal, and the other ecclesiastical. The statute usually indicates- who may be members of the corporation, but does not determine the qualification of church members, or the mode of their ad- mission. Those questions are, primarily at least, of ecclesias- tical cognizance, and both parties must first exhaust the rem- edies afforded by the ecclesiastical body before the courts will consider the question involved.^ The temporal body has noth- ing to do with the church organized from it, except as it pro- vides for its wants. In fact, the corporators may not necessa- rily be professors of any particular belief of faith, or members of any church. The church itself has its members, who are supposed to hold certain beliefs and subscribe some covenant with each other, where such is the custom of the particular denomination to which the church is attached. The church is not incorporated, and has nothing to do with the temporalities. It does not control the property of the trustees. It can receive nobody into the society and can expel nobody from it; on the other hand, the corporation has nothing to do with the church, except as it provides for its wants. It cannot alter the church faith or covenant; it cannot receive members; it cannot expel 1 Petty V. Toker, 31 N. Y. 267; 2People v. German, etc. Church, 5S People V. German, etc. Church, 53 N. Y. 103. N. Y. 103. SBeutiner v. Frazcr, 100 Mich. 179^ 1050 SPECIAL EEMEDIES. [§ 879. members ; it cannot prevent the church from receiving or ex- pelling -whomsoever that body shall see fit to receive or expel. Hence, mandairms will not lie to the corporation to reinstate a member of the church "who has been wrongfully expelled, nor will an action for damages for expulsion from the church lie against it.^ Corporations thus formed have no denomina- tional character and none can be engrafted upon them. The legal character of the corporation is not aCected by the exist- ence or non-existence, or ecclesiastical connection, doctrine, rites or modes of government of a church or churches formed by the corporators. " The existence of the latter as organized bodies," it is said, " is not recognized by our municipal law. That persons otherwise qualified do not lose their rights as cor- porators to vote at elections by reason of their having, individ- ually or collectively, renounced the doctrine and ecclesiastical government professed and recognized by the religious body in whose worship and services the corporate property has ahvays been employed. The trustees can determine by their control of the corporate property who shall conduct the religious ex- ercises. They are entitled to the possession and control of all the corporate property, and are empowered to exercise its entire administrative functions." Hence it follows that it is within the power of the corporators to effect an entire change in the character of the exercises with respect to the denominational creed that shall be conducted within the church edifice, and this power is beyond restraint by the courts. That injustice might thus be occasioned was recognized by the court, and ineans whereby it might be prevented were suggested. It was stated " that there were two modes by which this result might be ac- complished: one by causing the church edifice and lot to be con- veyed to the society upon the express condition that it should be forever thereafter devoted to the purposes of religious wor- ship by a congregation maintaining a certain faith and observ- ing certain prescribed ordinances and forms; the other by prescribing what persons it will admit to membership. This is within the power of the trustees to determine. Of course the latter method might prove ineffectual if the corporators or 1 Hardin v. Trustees of Church, 51 Mich. 137. §§ 880-882.] , PEIVATE COEPOEATIONS PEOPEE. 1051 members, or a majority of them, should change their mind and desire to embrace some other creed or faith, or none at all.' Sec. 880. Ministers unlawfully deposed With respect to ministers of church societies the rule is different. The position is somewhat in the nature of an office, having attached to it endowments or emoluments; and Avhere a minister having a prima facie right has been wrongfully deposed, mandcaniis will lie to reinstate him.^ In such cases, where the church so- ciety is incorporated, the court will examine the proceedings for the purpose of determining whether they have been prop- erly and legally conducted.' Sec. 881. Execution of trusts. — The courts will compel, on the part of such organizations, the ej^ecution of all trusts, and prevent any diversion from the proper use,* and will compel the officers thereof to perform their duties with respect to the temporal or business affairs of the society, such as delivery of -books and the like. Sec. 882. Mutual benefit societies — Expulsion of mem- bers. — The question under consideration is one of great im- portance in view of the growth of benefit or relief associations throughout the several states. They are in some respects fra- ternal orders, but the chief object and purpose is to provide for the insurance of members. The by-laws of such organiza- tions usually provide for suspension or expulsion of a member for violation of their provisions, and a consequent loss of the right of insurance. Public policy therefore demands that the visitorial power of the sta,te, exercised through the courts, should be applied where it is necessary to protect the contract rights of members; and, as will be seen, such power has been exercised in a multitude of instances. Forfeitures are abhorred in law; no less so in respect to contract rights of insurance in so-called fraternal societies than in respect to contracts of in- 1 Petty et al. v. Tooker et al., 31 N. ' Weber v. Zimmerman, 33 Md. 156; y. 307. Dempsey v. North Mich. Conference, 2Runkel v. Minmiller, 4 Har. & 98 Mich. 444. MoHen. (Md.) 429; Rex v. Blooer, 4 Feizsl v. First German Society, 9 Burr. 1043. Kan. 593. 1052 SPECIAL EEMEDIES. [§ SS3. surance in regularly organized companies, and it may be said the rules of law are practically the same as to each. One of the most frequent causes either of suspension or expulsion is that of the non-payment of dues or assessments. The first question with respect to suspension or expulsion based upon this particular ground is whether the mere fact of non-payment at the time and manner prescribed is self-executing, or is it re- quired that there shall be affirmative action taken declaring a suspension or termination of membership. The courts are not agreed with respect to this proposition. Some incline to the view that suspension or expulsion is not necessary to a forfeit- ure,^ while others incline to the doctrine that in order to ter- minate membership there must be affirmative action so declar- ing a forfeiture.^ There may be an exception to the rule last stated where the policy or certificate provides, in unmistakable terms, that the non-payment of the assessments or dues shall of itself work a forfeiture or termination of membership. It was held in a recent case that a provision in the constitution of a benefit society that a member not remitting his assessmen t within thirty days from the date of notice thereof shall forfeit his claim to membership was not self-executing; that affirma- tive action must be taken on the part of the societj^ declaring a forfeiture before such effect would result.' Sec. 883. Notice, wlieii required. — The courts quite uni- formly hold that there can be no loss of rights without notice, where notice is required, and therefore a member must 'have legal notice of an assessment before forfeiture can be declared.* A certificate or policy provided that " if any annual dues or mortality assessments on this policy shall not be paid when due, the consideration .of this contract shall be deemed and held iHogues V. Supreme Council, etc., Ass'n v. Hamlin, 139 U. S. 297; Su- 76 Cal. 109; EUerbe v. Faust, 119 Mo. preme Lodge K. of H. v. Dalberg, 138 053. 111. 508; Loughbridge v. Iowa, etc. 2 Northwestern, etc. Assoc, v. Med. Ass'n, 84 Iowa, 141; United Sohauss, 148 111. 804. States, etc. Ass'n v. Mueller, 151 111. 3 Northwestern, etc. Assoc, v. 334; Passenger Conductors' Life Ins. Sohauss, 148 111. 304 Co. v. Birnbaum, 116 Pa. St. 565; * Merriam v. Keystone, etc. Ass'n, Warner v. National, etc. Ass'n, 100 138 N. Y. 116; Scheuler v. Grand Mich. 157; Hall v. Supreme Lodge Lodge, 45 Minn. 356; Mutual Life K. of H., 34 Fed. Rep. 450. § 883.] PEIVATE COEPOEA.TIONS PEOPEE. 1053 to have failed, and this policy shall be null and void, and the only evidence of payment shall be the receipt of the associa- tion, signed by the president or secretary." It was said : " The policy does not state that the mortality assessments shall be- come due immediately when made, nor when they shall become due (the charter and by-laws were not in evidence). The pol- icy-holder must be notified of them and payment required be- fore it can be said that they are due ; as the policy is to become null and void for the non-payment of assessments, it is obvious that the policy-holder must be put in default before such a serious consequence to him can follow from his non-payment, and the only way that he can be legally put in default is by notice and demand, and an opportunity to pay after an assess- • ment had been made." It was further stated that there was no provision in the policy that notice could be given by mail. If such service be questioned, in the absence of countervailing proof, it will be suf^oient jprima facie to prove the fact of such mailing, and the presumption would be that it was received^ The association, however, takes the rislc of the notice being received. The policy-holder must have notice, and he cannot have notice if it fails to reach him without his fault.' A cer- tificate provided (and such provision was in the constitution of the association) that a " notice addressed to a member at his post-office address as appearing upon the books of the as- sociation, according to its usual course of business, shall be deemed a sufficient notice ; and proof of mailing the same, ac- cording to the usual course of business of said association, shall constitute and be deemed and held sufficient proof of compli- ance herewith on the part of said association." There was a clause in the constitution of the association making it the duty of a member failing to receive notice of an assessment on or be- fore a certain day to advise the association of that fact. The cause was in fact determined upon the question of proof of mailing the notice — a question which was left to the jury. Whether such provision in the policy and in the constitution would operate to conclude the member, where in fact no no- tice was received, the court did not determine, yet enough was said from which an inference might be gathered that the mem- iMerriam v. K. M. B. Ass'n, 138 N. Y. 116. 105-i SPECIAL REMEDIES. [§ 884. ber -would not be concluded Avhere pajj^ment after notice was actually received or tendered.' In some of the states statutes provide that no life insurance company can declare forfeited or lapsed any policy by reason of the non-payment of any premium, without notice, and prescribes what such notice must contain. It held that such statutory provisions form a part of the contract of insurance, and cannot be waived by the parties, nor by any conditions attached to the policies. It is also de- clared to be the law that such notice, as to form, substance and manner, must conform strictly to the provisions of the statute; that forfeiture cannot otherwise be declared.^ Sec. 884. Jurisdiction — Effect of lack of upon rights of members. — It is not our purpose in this discussion to review , all the questions that may arise by which the insurance may be collected in proper proceedings, where there has been an alleged failure to comply with the strict requirements of the conditions of policies or provisions of constitutions and by-laws, but those only which have relation to the suspension or expul- sion of members of associations and their right to be rein- stated by proceedings in mandamics. As there can be no sus- pension or expulsion without forfeiture of rights and benefits, the question of forfeiture becomes important in determining the rights of reinstatement through the medium of the courts. It may not be necessary for a member to resort to the courts to be reinstated to preserve his contract rights. For instance, if no jurisdiction is acquired to suspend or expel a member, either because the proceedings are irregular or Avithout proper notice having been given, or where he has not been regularly convicted in accordance with the rules of the society, nor un- der general principles of law, his membership still continues and his contract relations may be enforced. "Want of juris- diction does away with the obligation to seek relief by appeal, even where required by the constitution of a ' mutual benefit association, such as a lodge of the Knights of Pythias, in other- Avise proper cases. The duty of an expelled member to ex- 1 Mutual Life Ass'n v. Hamlin, 139 338; Warner v. National, etc. Ass'n, U. S. 297. 100 Mich. 157. - Miner v. Benefit Ass'n, 63 Midi. § 885.] PEITATE COEPOEATIONS PEOPEE. 1055 haust, by appeal or otherwise, all tlie remedies within the organization, only arises where the association is acting strictly within the scope of its powers.' It seems to be settled law in Massachusetts, and I assume in most jurisdictions, that the question of the validity of the assessment is always open when the question of forfeiture is to be determined. If the as- sessment is for a purpose, either in whole or in part, which the member is under no obligation to paj', or is excessive in amount, then his refusa,l to pay can create no forfeiture.- Sec. 885. Grounds for expulsion or forfeiture. — It is quite usual that the policies of such associations, and the constitution and by-laws as well, contain provisions with respect to enter- ing enumerated extra-hazardous employments. In some there are provisions which declare the policy void in case of depart- ure in this respect from the terms of the contract. In others no such condition is expressed, and the question is whether a subsequent engagement in a prohibited employment operates a forfeiture of the insurance or right of membership. This precise question was before the supreme court of Iowa. By the terms of the certificate the insured was permitted to en- gage in a lawful occupation, excepting those of a hazardous nature, including among others that of car-coupler. At the time the certificate was issued the member was engaged as a car-sealer. Subsequently he was employed as a car-coupler, and while so engaged he received the injury from which he died. There was no express reference made in the contract of insurance to a change of employment or its effect. It was held that the change to a specified hazardous employment did not render the certificate void. The opinion of the court should be carefully read to ascertain the specific ground upon which the conclusion of the court was reached. It is stated that " it will not do to say that hazardous occupations are for- bidden by necessary implication, and that, therefore, the for- feiture of the certificate must follow the adoption of such 1 Supreme Lodge of K P. v. Esk- 166Mass.316; Margessonv.Mass.lBen. holme, 59 N. J. L. 255, 59 Am. St. Ass'n, 165 Mass. 363; Underwood v. Rep. 609. Iowa Legion of Honor, 66 Iowa, 134. 2 Langdon v. Mass. etc. Life Ass'n, 1056 SPECIAL EEMEDIES. [§ 886. occupation, for the reason that the certificate and application specify the conditions on which the contract shall become void, and the adoption of a hazardous occupation is not one of them." In reaching this conclusion the court must have held that the stipulation which the member signed and agreed to was with- out force or effect. The position of the court is sought to be reinforced by what was held in Sandford v. California Fan'm- ers' Mutual Ins. Co., 63 Cal. 547, in substance that "a policy issued to one of its members by a mutual insurance company having authority to levy assessments upon its members for the proportion of losses and expenses of the company is not for- feited or suspended by the failure of the insured to paj'^ an as- sessment thus levied, unless such forfeiture or suspension is provided for as a part of the contract of insurance. If the ob- ligation to pay arises from an independent contract, its violation does not affect the policy. In that case, however, the policy provided for cancellation of the policy at the discretion of the secretary in case of delinquency on the part of the insured. There was nothing in the policy which declared a forfeiture or suspension of the policy in case of non-payment. The sec- retary had never exercised his discretion in declaring a for- feiture, and the court very properly held that the policy was in force. There could be no question but that the company, or secretary, which could exercise his discretion for it, had the option either to declare the policy forfeited or to remain in force ; in the latter case by accepting the individual liability of the member for the payment of the assessment. Sec. 886. Effect of clianges in constitution and by-laws upon contract rights of members. — Another question of con- siderable importance that may arise is the effect upon such a certificate and the status of the member of radical chans'es in the laws of the society or in the constitution of such society. It is considered quite clear that where, when the member joins such a society, there is no express provision with respect to his being bound by such subsequent legislation, he cannot bo bound thereby with respect to vested rights and interests. But the constitution or by-laws quite frequently contain provisions to the effect that they shall be bound by all articles and by-laws § 886.] PRIVATE COEPOEATIONS PEOPEE. 1057 which may at any time be adopted. It may be safe to say that in so far as subsequent changes are made which do not sub- stantially change the object and purpose of the society and do not deprive members thereof of vested rights as a part of the terms of the contract, they are bound.^ A member could not anticipate that the more radical changes would be made, and of course were not in contemplation of the parties when the contract was made, and therefore he ought not to be bound by the mere arbitrary action of the majority. While the writer was upon the bench, he was called upon to determine whether the rights of a member of the Order of United "Workmen were forfeited and his membership terminated by reason of engag- ing in the business of keeping a saloon. When he became a member of the order there was no prohibition against engaging in such an employment. Subsequently and after he had been a member for thirteen years, and had promptly paid his assess- ments and otherwise complied with the regulations and laws of the order, the constitution of the order was amended so as to include such a prohibitory provision, and it was urged that his membership was terminated and his policy forfeited ; and the writer held that such a change, even in the fundamental law of the order, could not operate upon his existing right to be and remain a member. That if it was within the power of the order to enact or adopt such a provision, it could not be retroactive in its operation. This question received consider- ation by the supreme court of Alabama {Supreme Commandery V. Ainsworth, 71 Ala. 436). Among the conditions there exist- ing was one that the person to whom the certificate was issued should comply with the general laws of the order then in exist- ence or which might thereafter be enacted. The certificate was accepted in writing, subject to the laws then in force or which might thereafter be enacted, and also other conditions of like force and effect were upon the face of the policy. Sub- sequent to the issuance of the certificate a law was adopted, by the terms of which a certificate of that class was forfeited if the member, whether sane or insane, should take his own life. It was urged that the effect of the conditions subscribed to and accepted by the member was that he was bound by the laws 1 Hobbs V. Iowa M. B. Assoc, 83 Iowa, 107. 67 1058 SPECIAL EEMEDIES. [§ 887. of the association adopted subsequent to the issue of the cer- tificate ; but the court said that " a corporation has no capac- ity, as the legislative po^ver from which it derives its existence has no capacity, by laws of its own enactment to disturb or di- vest rights which it had created; or to impair the obligation of its contracts ; or to change its responsibilities to its members ; or to draw them into new and distinct relations." The Iowa court is also authority for the position that there is no distinc- tion with respect to effect upon vested rights between articles of incorporation and by-laws. What could not be accomplished by the latter could not by an amendment of the articles of in- corporation or its constitution.^ Sec. 887. Waiver of forfeiture.— Another important ques- tion which is frequently involved and has an important bear- ing upon the question of reinstatement is that of waiver. It is a general rule that forfeiture of membership in such associa- tions may be waived by the association as well for the non- payment of assessments as for other causes.- This waiver may be affected in many ways other than by an agreement in express- terms. It is universally held that forfeiture is waived by the acceptance of assessments that are overdue.' While there is practically no controversy with respect to this proposition, it is sometimes asserted that the continued receipt of premiums or assessments after a forfeiture has occurred will only be con- strued as a waiver when the facts constituting a forfeiture are known to the company.* Yet this is true of such facts as are peculiarly within the knowledge of the assured. If the com- pany ought to have known of the facts, or with proper atten- tion to its business would have been apprised of them, it has no right to set up its ignorance as an excuse.* It has been iHobbs V. Iowa Mut. B. Assoc, 83 Council, etc., 78 Cal. 49; Metropolitan Iowa, 107. Life Ass'n v. Windover, 137 111. 417; 2 Moore v. Order of Railway Con- Bice v. New England, etc. Aid So- ductors, 90 Iowa, 731 ; National, etc. ciety, 146 Mass. 348. Ass'n V. Jones, 84 Ky. 110; Menard v. ■» insurance Co. v. WoUf, 95 U. S. Society of St. Jean Baptiste, 63 Conn. 336; Benneobe v. Insurance Co., 105 173; Mitts v. Home, etc. Life Ass'n, U. S. 355. 105 Cal. 233. s Knights of Pythias v. Kalinski,' 'True V. Bankers' Life Ass'n, 78 163 U. S. 289. Wis. 387; McDonald v. Supreme § 888.] PRIVATE COEPOEATIONS PEOPEE. 1059 stated that it is not the intention of the insurer, but the effect upon the insured, which gives validity to the estoppel.^ It was stated by one court : " The defendant received and held the money until after the death of the deceased, and he had a right to regard the contract as in force, regardless of any intention of the defendant to the contrary." ^ The fact that the company, in receivmg and retaining the money, did not know of the previous grounds of forfeiture, or did not intend to waive the same, is immaterial ; ' and this proposition is generally accepted as correct and to be the law. It has also been held that the omis- sion to make a demand for an assessment, as well as failure to take measures to collect, permitting the member to still remain as such, is a waiver of forfeiture for non-payment of assessments.* The same result will follow where the association gives the member an extension of time within which to make the pay- ment.' Such an act amounts to an election on the part of the association to continue the policy in force. Sec. 888. Waiver continued — ^ Where it may result from a course of dealing. — So, also, where the course of conduct on the part of the association is such as to justify the belief that a literal compliance with the terms of the contract with re- spect to time will not be insisted upon as a ground of forfeit- ure.' It was stated by a learned court : " Nor can it be doubted that a general practice and course of business which would lead the member to rely upon the acceptance of payment for assessments, after failure to pay in the time prescribed by the policy, will operate as a waiver of the forfeiture. Insurance companies cannot lead customers to rely upon their usages and course of business, and the declarations of their ofHcers, which disarm vigilance, overcome watchfulness and remove stimulus to promptness in payments provided by their policies, and then rigidly enforce the conditions of payment. They must give to iMay on Ins., sec. 507; Tobin v. < Menard v. Society of St. Jean Bap- Western Mut. Aid Society, 73 Iowa, tiste, 63 Conn. 173. 2gl. 6 Mills V. Home, etc. Life Ass'n, 105 2 Bailey v. Mut. Ben. Ass'n, 71 Iowa, CaL 233. 689. •* Gunther v. New Orleans, etc. Aid 3 Tobin V. "Western Mut. Aid Soc, Ass'n, 40 La. Ann. 776; Loughbridge 73 Iowa, 261. v. Iowa L. & E. Ass'n, 84 Iowa, 141. 1060 SPECIAL EEMEDIES. [§ 889. the customers the indulgence which they thus promise. For- feitures on account of omissions to pay provided by the policies will be regarded as waived by such usages of business and dec- larations of officers."^ It seems also, where the oflBcers of an insurance company assure a policy-holder that his policy will not be forfeited if payments are not promptly made, that then there must be notice to him that payment is required before forfeiture can be declared or a certificate of health required as a condition of reinstating the policy-holder.^ It was stated by the Wisconsin court that when such a company or association, either by its oiEcers or agents, induce the assured to believe that no forfeiture for non-payment of money to become due for premiums or assessments would be incurred until a personal notice to make payment has been given, forfeiture of the policy is waived, notwithstanding by the terms of the policy it was to become forfeited if the insured failed to make payment when payments were due, even where such payments became due at fixed periods.' Such an agreement, when made in the office of the company by its officers, may be shown by parol, notwithstanding a provision in the policy that any agreement not signed by the president and secretary, and bearing the seal of the company, should be void ; and probably in other cases where the agreement is made by an agent, if otherwise it would be binding on the company.'' Sec. 889. Subsequent assessments after default — Effect of. — The rule has been stated to be, that " every time the com- pany makes an assessment against the assured, after he has failed to pay a previous assessment within the time prescribed by the rules, it waives the forfeiture of the policy for such fail- ure to pay, and admits him to be a member of the company, notwithstanding such failure." ^ The same court make an ex- 1 Loughbridge v. Iowa L. & E. 2 True v. Bankers' Life Ass'n, 78 Ass'n, 84 Iowa, 141, citing Pillsbury Wis. 287. Boat Yard Co. v. Western Assur. Co., 3 Alexander v. Continental Ins. Co., 118 Pa. St. 415; Tripp v. Vermont 67 Wis. 423. Life Ins. Co., 55 Vt. 100; Marston v. ^Dilleber v. Knickerbocker Life Massachusetts Life Ins. Co., 59 N. H. Ins. Co., 76 N. Y. 567; Alexander v. 92; Alabama G. L. Ins. Co. v. Ger- Continental Ins. Co., 67 Wis. 432. many, 74 Ga. 51. 6 stylow v. Wisconsin Odd Fellows § 889.] PRIVATE COEPOEATIONS PEOPEE. 1061 ception to the rule that the practice of receiving assessments after due without objection constitutes a waiver of forfeiture of the policy, stating that such practice is confined to members in good health, and does not reach the case of one who is sick and near death when the attempt is made to pay the assess- ment.^ The rule that the making of subsequent assessments after non-payment of an assessment that is due operates as a waiver of forfeiture of the policy is not applicable in all cases. Much depends upon the particular form of the contract. Where by the terms of the policy or provisions of the constitution of the order a delinquent member is permitted, by the payment of his arrearages within a certain number of months or other desig- nated period after he becomes in default, it is held that the service of notice of assessments by such association upon him did not operate as a waiver of the right of said association to declare a forfeiture of such policy.^ And the Iowa court is authority that such result is not changed by the fact of tender of the payment of all arrearages before such forfeiture was de- clared.' The failure to pay an assessment under such conditions merely suspends the right of the member under his certificate, but does not terminate his relations with the lodge. The giving of no- tice of subsequent assessments ■ is entirely consistent with the duty of the defendant toward the member, at least until he had been in arrears for the period designated. The supreme court of Massachusetts, however, in a recent case declare, where the laws of the association w^ere that, " any member failing to pay an assessment or assessments within thirty days from date of notice calling for same shall stand suspended, and neither he nor his beneficiaries shall be entitled to any benefits from the society while he is suspended, nor until he is reinstated," that such laws were self -operating, and a member thus in default is suspended.- Other provisions of the law were in substance that within thirty days after such suspension the member may M. L. Co., 69 Wis. 334 See also Na- 2Lefflngwell v. Grand Lodge A. O. tional M. B. Ass'n v. Jones, 84 Ky. of U. W., 86 Iowa, 379; Schmidt v. 110. Modern Woodmen, 84 Wis. 101. 1 Schmidt v. Modern Woodmen, 84 3 game cases. Wis. 101. 1062 SPECIAL REMEDIES. [§ 889. be reinstated by a majority vote of the members ; after thirty days it required for reinstatement, in addition to a majority vote, a medical certificate as to good health. It appears to have been held that no officer of the company has any authority to bind it by doing any act inconsistent with its laws; that it was not necessary to consider whether the corporation itself could waive its own laws; consequently, that subsequent as- sessments made after default upon the assured in the regular course* of its business was not a waiver of the forfeiture of the policy occasioned by such default, nor was payment of the as- sessment after thirty days such a waiver, where he was noti- fied soon after that a medical examination was essential to reinstatement.^ The rule in that state, however, when not affected by peculiar conditions, is that an unconditional accept- ance of assessments waives all former known grounds for for- feiture.^ A case presenting somewhat similar features was before the New York court of appeals. The provisions of the constitution or laws of the society were very similar. Pay- ments of dues were received subsequent to default, bat on con- dition that the assured was at the time in good health. It appears he was not, and died the next day. It was not inti- mated by the court that, if the receipt of the payment was not conditional, it would not have constituted a waiver; on the contrary, they declare that a waiver of the forfeiture of a policy, in the absence of any agreement to that effect, results from negotiations or transactions with the insured after knowl- edge of the forfeiture, by which the insurer recognizes the con- tinued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some expense or trouble.' They state further that, in the ab- sence of an estoppel, knowledge of the facts and an intention to waive must exist.^ It has been stated that a forfeiture is not waived by making an assessment upon a member for loss 1 Lyon V. Supreme Assembly, etc., * Eonald v. Mutual Reserve F. & L. 153 Mass. 83. Ass'n, 133 N. Y. 378; Robertson v. 2 Rice V. New England Mutual Aid Metropolitan Life Ins. Co., 88 N. Y. Society, 146 Mass. 248. 541; Weed v. London L. F. Ins. Co., 3 Ronald V. Mutual Reserve F. & L. 116 N. Y. 510; Roby v. American Ass'n, 133 N. Y. 878. See also Titus Cent. Ins. Co., 120 N. Y. 510. V. Glens Falls Ins. Co., 81 N. Y. 419. ■§ 890.] PEIVATE COEPOEATIONS PEOPEE. 1063 by death, where such assessment is made after a default in the payment of annual dues, provided the death of the member creating the loss was prior to the default in the payment of dues, because the member is liable for the assessment, notwith- standing delinquency in the payment of the annual dues.^ Sec. 890. Waiver of non-performance of other conditions. "With respect to the waiver of forfeiture based upon other grounds, or where other conditions of the contract have been violated, the rule is not quite so strict in its application. Thus, the statement in an application for life insurance of the age of an applicant is material, and is ground of forfeiture whenever the company is apprised of the fact that the age given by the assured is less than that given, and if not known or discovered prior to the death of the member is sufficient to defeat any claim for loss against it. The facts in such a case should be sufficient to clearly establish a waiver before it can be found. Waiver in such a case must proceed from knowledge. Mere rumor is not sufficient, though it may have reached a local officer, such as the secretary of the local lodge. The associ- ation is bound to treat the member as innocent of falsehood until satisfied of his guilt or having full knowledge of the facts, and is not required to act by choosing between a waiver and a forfeiture until the truth is reached in a form, and so sup- ported by evidence, as to make it a duty to act decisively one way or the other. If it have information sufficient to put it upon inquiry, and it proceeds to make the inquiry and deter- mine the question, then the receipt of dues or assessments dur- ing the period of such investigation will not constitute a waiver of forfeiture. Such conduct does not indicate any in- tention to waive the forfeiture. The accused member, pending the investigation, must be deemed to have voluntarily taken the risk of the result.^ It has been held that forfeiture on the ground of suicide, where the original contract provided that the company should not be liable where death was caused in such manner, cannot be waived by implication. That the 1 Garbutt v. Citizens' L. & E. Ass'n, 2 Preuster v. The Supreme Coun- 84 Iowa, 293; Mandego v. Centennial cil, etc., 135 N. Y. 417. Mut. L. Ins. Co., 64 Iowa, 134. 106i SPECIAL EEilEDIES. [§ 891. doctrine of waiver only extends to existing contracts with re- spect to non-compliance with prescribed conditions, and does not extend to the making of new contracts or to such opera- tions as would essentially change the character of the contract as made.' Sec. 891. Waiver of forfeiture Iby ineonsisteiit acts. — The rule recognized and so often declared with respect to fire in- surance companies is equally applicable to life insurance com- panies, viz., that if the company requests the insured to incur expense in making proofs of loss or for other purposes, and he incurs such expense, the company cannot thereafter in- sist upon a forfeiture of the policy for a cause which was well known to the company when such requirement of proofs of loss or other matter was requested by the company.^ The rule is evidently based upon the doctrine of estoppel. It was ap- plied by the "Wisconsin court where the claim of forfeiture was residence in prohibited territory and death while there. The ground of waiver was in requiring amended proofs of loss upon the question of residence, and the consequent expense on tiie part of the beneficiary in procuring them.^ It appears from the cases cited that such has been settled to be a ground of waiver in that state in many cases, which are cited. The He^y York court of appeals are in accord with the Wisconsin court upon the general doctrine of waiver, and state the rule to be, which we have before quoted, but repeat here, that " a waiver of the forfeiture of a policy, in the absence of any agreement to that effect, results from negotiations or transactions with the assured, after knowledge of the forfeiture, by which the in- surer recognizes the continued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act or incur some expense or trouble," but are of a different mind with respect to the act of calling for proofs of loss constituting a waiver. It was said : " It was a condi- tion precedent to the maturity of the claim of the plaintiff 1 McCoy V. Northwestern Mut. R. Knights Templars M. L. I. Co., 94 Ass'n, 92 Wis. 577. Wis. 538. ■■i True V. Bankers' Life Assoc, 78 3 Kidder v. Knights Templar M. L. Wis. 287, and cases cited; Kidder v. L Co., 94 Wis. 538. § 892.] PEITATE COEPOEATIONS PEOPEE. 1065 that tlie proofs of death specified in the contract should be furnished. The acts of the defendant in furnishing blanks in the first instance and giving instructions were acts of courtesy. All the papers constituting the proofs of death and its cause were part of the evidence proper for the defendant to ask and for the plaintiff to give in order to impart to the defendant that full knowledge of the facts which under the circumstances was material to the reserved question of the member's rein- statement (the question being upon the acceptance of an over- due payment of dues), and also a condition precedent to any further acts to be relied upon as a waiver of forfeiture. As the matters relied upon to constitute a waiver were properly required by the defendant to enable it to ascertain the facts and decide as to its position, we think the court properly de- cided that there neither was a waiver nor any evidence tend- ing to prove it." ^ Sec. 892. Omission to pay assessments resulting from ac- cident and other uncontrollable causes.— Some of the re- ported cases involve the effect upon the question of forfeiture of an omission to pay dues and assessments, where the default was attributable to accident or other uncontrollable conditions. In such cases much is made to depend upon the terms of the contract or conditions of membership. Thus, where a certificate of membership' was conditioned that the association would pay to the member the amount of a death assessment if he complied with its rules and regulations, but that a failure to comply with its rules as to payment of assessments would render the certifi- cate void, and other conditions were to the effect of sending no- tice, and, in case payment was not received in thirty days from mailing of such notice, " it shall be accepted and taken as sufli- cient evidence that the party has decided to terminate his con- nection with the association, which connection shall thereupon terminate, and the party's contract with the association shall lapse and be void; but for valid reasons to the officers of the association (such as failure to receive notice of an assessment) he may be reinstated upon payment of assessment arrearages," it was held that if by reason of the unconsciousness of the iBonald v. Mutual Reserve F. L, Ass'n, 133 N. Y. 378. 1066 SPECIAL EEMEDIES. [§§ 893, 894. member he was unable to make the payment of arrearages, and the same were subsequently tendered by the beneficiary, to- gether with evidence sufficient to establish a valid excuse under the provisions of the contract, though the society refused to accept them, that the legal right to reinstatement appeared. The question as to the validity of the excuse was not left exclu- sively to the determination of defendant's officers, but where such an excuse existed they were bound to be satisfied there- with.i Sec. 893. Reinstatement — Effect upon contract. — Eein- statement of a member after default does not have the effect to create a new contract. It is merely a recognition and con- tinuance of the old. Subsequent legislation, therefore, does not operate upon or impose new obligations not common to all,^ and it makes no difference in this respect that the member so applying for reinstatement is beyond insurable age.' Sec. 894. Remedies of member. — The important question remains of the remedy of policy-holders or members of benevo- lent associations. Of course, as has been stated, an action at law after death will lie to recover the amount of the policy. An action in equity will also lie to determine the status of a policy-holder before the contingency has happened provided for by the terms of the policy. This question may have been doubted at one time, but at the present day appears to be set- tled.* The New Jersey court is of the opinion that maiidamus will not lie in cases where the contract of insurance is in insur- ance companies, though mutual, where the insurance is the only personal right or benefit involved.* The argument is that the relations existing between such a company and its policy-holder rest in contract alone, and that mandamus does not lie in such 1 Dennis v. Mass. Ben. Ass'n, 120 Ins. Co., 73 N. Y. 516; CoJien v. New N. Y. 496. York Mutual Life Ins. Co., 50 N. Y. ^ Lindsey v. Western, etc. Aid Soo., 610: Bradbury v. Mutual Reserve F. 84 Iowa, 734; Lovick v. Providence L. Co., 53 N. J. Eq. 306; Day v. Con- Life Ass'n, 110 N. C. 93. necticut Mut. L. Ins. Co., 45 Conn. 3 Lovick V. Providence Life Ass'n, 480. 110 N. C. 93. 5 Bradbury v. Mutual Reserve F. L. * Insurance Co. v. Pottker, 33 Ohio Ass'n, 53 N. J. Eq. 306. St. 459; Meyer v. Knickerbocker Life § 895.] PBIVATE COEPORATIONS PEOPEE. 1067 cases. The rule to a certain extent, and when rightly applied, is undoubtedly the law; yet it must not be forgotten that manda- mus often lies where the creation of a right was in contract. Incidents are the payment of salaries to public officers, the pay- ment of bonds by public authorities, the inspection of books and papers in private corporations, and the like, generally where a specific duty is imposed. The writ would not lie to compel payment of the policy, because that would be the enforcement purely of a contract, and where the party had an adequate remedy at law; nor would it lie to compel the payment by the member of dues or assessments or premiums which he had agreed to pay, for the same reason. That there may exist a remedy in equity does not supersede the remedy by mandamus. The references made to the English courts are unimportant, for there the writ was seldom addressed to purely private cor- porations. However this may be, and whatever the rule may be with respect to insurance companies proper, it is conceded law that the writ lies to reinstate a member who has been illegally suspended or expelled from a purely private corpora- tion, and where insurance is merely an incident to such mem- bership the right follows the membership.^ In fact the propo- sition is not disputed in this country and is recognized in the New Jersey case referred to. The death of an assured in such a society does not alter the contract obligations of the society. His legal right to reinstatement or to have the cer- tificate declared to be in force does not die with him, but passes to the beneficiary under the policy.^ Sec. 895. Jurisdiction of tlie superior body incorporated under laws of anotlier state. — A society incorporated under a Michigan incorporation act cannot subject itself or its mem- bers to the jurisdiction of an authority existing outside of the state and beyond the control of the Michigan laws. Hence it was held that a grand lodge of the Ancient Order of United Workmen incorporated under the laws of that state could not compel its members to pay assessments made under the orders »See cases cited in sec. 867 and Ass'n, 120 N. Y. 496; Wheeler v. Con- subsequent sections. nectiout M. L. Ins. Co., 83 N. Y. 543. 2 Dennis v. Massachusetts Benefit 1068 SPECIAL EEMEDIES. [§ 895. of a supreme lodge incorporated under the laws of Kentucky and not subject to Michigan courts. JSTor can it suspend mem- bers from their privileges as such for refusing to pay such an assessment.' There was an application for a mandamus in the case first cited to compel the recognition of relator as a mem- ber of one of the subordinate lodges of the order of which the respondent was the supreme governing authority in the state. As such member he stood insured by the respondent in the sum of two thousand dollars. He was suspended by the re- spondent, and w^ould thereby lose his insurance, for refusing to recognize and pay an assessment made under the orders of the supreme lodge, which was a corporation existing under the laws of Kentucky and not subject to the jurisdiction of the former state. The assessment was made to pay losses on risks taken bj^ the order in other states and by other state grand lodges. The result of such a rule would be that the supreme lodge of orders or societies must be incorporated under the laws of each state where subordinate lodges exist, in order to carry out the provisions and rules of the order. The question whether a member who has been expelled must first exhaust' his remedy by appeal within the order, when the laws so provide, before application can be made to the courts for relief, is fully dis- cussed in prior sections.^ 1 Lamphere v. United Workmen, 2 See sec. 872 et seq. 47 Mich. 429; Meurer v. Detroit M. P. B. Ass'n, 95 Mich. 451. PART lY. JUDICIAL POWERS. CHAPTEE 37. LIABILITY OF JUDGES AND OFFICERS EXERCISING JUDICIAL POWERS. Sec. 896. 897. 900. 901. 903. 903. Rule with respect to judges of superior courts. There must be au absence of all jurisdiction over the sub- ject-matter. Distinction between lack of jurisdiction and error. Where warrant or indictment fails to charge an offense. Exemption only applies to judi- cial acts. Distinction between judicial and ministerial acts. Rule with respect to judges of inferior courts. Reasons given for distinction between judges of superior and those of inferior courts. Sec. 904 Doctrine of the New York court. 905. Where warrant does not charge an offense. 906. Where proceeding under a law in fact unconstitutional. 907. Where justice has mistaken the law. 908. Rule with respect to ofHcers exercising judicial powers. 909. Where malice or corruption is charged. 909a. Same with respect to inferior courts or officers. 910. Rule with respect to election offloers. Sec. 896. Rule with respect to judges of superior courts. The question of the liability of judges for damages by reason of their official acts is a question of much importance. Its effect upon the proper administration of the law has been considered as an argument against the proposition. With respect to judges of superior courts, the doctrine is quite well settled that they are not liable to civil actions for their judicial acts, even when such acts are in excess' of their jurisdiction and are alleged to have been done maliciously and corruptly.^ For it is a general 1 Bradley v. Fisher, 13 Wall. 335; Lange v. Benedict, 73 N. Y. 13. 1070 JUDICIAL POWERS. [§ 896. principle, states a learned court, "of the highest importance to the proper administration of justice, that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal conse- quences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge would be in- consistent with the possession of this freedom, and would de- stroy that independence without which no judiciary could be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial au- thority in a degrading responsibility. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country. It has, as Chancellor Kent observes, a deep root in the common law." 1 The general propositions involved in the consideration of this subject are few in number, some of which are created by the diverse sentiment of courts. The courts, however, are prac- tically agreed upon one general proposition — that is, that the judges of superior courts of general jurisdiction are not liable to civil actions for their judicial acts where they have jurisdic- tion of the subject-matter, in the absence of malice or corrup- tion. The questions upon which the courts divide are : First. Whether the judges of such courts are so liable where the motive which prompts their acts is malicious or corrupt. Second. The application of the rule to inferior courts ^nd tri- bunals. Third. Whether, where it is conceded that malice and cor- ruption on the part of judges of such superior courts is not a ground of civil liability, such rule applies to inferior courts or tribunals. Fourth. The distinction between judicial and ministerial acts. It thus appears at a glance, upon mere statement, that these few general propositions involve the whole subject of jurisdic- tion, and include minor propositions great in number and varied in character. At the very outset we are met with the question, What courts are such superior courts or courts of general juris- diction to which attaches this exemption of its judges from civil 1 Bradley v. Fisher, 13 "Wall. 335. § 897.] LIABILITY OF JUDOES AND OFFIOEES. 1071 liability ? In the opening chapters of this work we have had this question under discussion. There courts are classified. Domestic courts are sub-classified as " superior courts," " courts of general jurisdiction," " courts of limited jurisdiction," " in- ferior courts," and " inferior tribunals." With respect to courts of general jurisdiction, the distinction is noted between their proceedings when proceeding according to the course of the common law and when exercising special powers conferred. The discussion there relates solely to the effect of their judg- ments and records upon the question of their conclusiveness, such classification having been for such purpose clearly estab- lished for reasons at least apparently satisfactory. If the same reason which founds the classification there, is present here, then we could confidently adopt the distinction which is so clearly made. But the trouble is the reason is wanting. The reason which gives force to the rule here is that stated in Brad- ley V. Fisher, supra, from which we quote ; and looking at the reason alone, we fail to observe why the rule as stated should apply only to superior courts. Yet as such is its limited appli- cation in many jurisdictions, as we shall discuss, we can only here use the reason as a guide or basis from which to determine what courts are included in the term " superior courts." I cannot recall that this question has ever been fairly met and decided ; but it may be said that it is not limited to appellate courts and those exercising a common-law jurisdiction, but includes courts of limited jurisdiction whose proceedings are according to the course of the common law. Whether such is the extent of the limit I am not prepared to state. That it is not in all jurisdictions, we shall presently see. Seo. 897. Absence of jurisdiction over the subject-matter. The courts recognize a clear distinction between an excess of jurisdiction and a clear absence of all jurisdiction over the subject-matter. For acts in excess merely of a jurisdiction possessed or conferred, exemption from liability is held ; while for the exercise of power where none at all is possessed, no excuse is permissible. It is an authority usurped, and the judge who thus usurps it is not shielded by the mere fact of his ofii- cial position, where such want of authority is known to him. 1072 JUDICIAL POWEES. [§ 897. This qualification seems to be attached to the statement of the rule, and to this extent it may be said a judge of such a court is distinguished from a mere intruder. The reason for this qualification is that stated with respect to the rule, and is as strong in the one case as in the other. The question of juris- diction of the subject-matter is oftentimes one difiicult to deter- mine, yet which must be determined by the judge; and to hold him responsible for error of judgment in that respect would evidently embarrass, if not prevent, the proper administration of justice. The judge must be left free to act without fear of probable consequences to himself. Ignorance of the law is no excuse for laymen, but is of necessity an excuse for him whose duty it is to determine and apply the law. It logically follows that the proper statement of the rule would be, that such a judge is only subject to civil responsibility where he knowingly usurps a jurisdiction not conferred at all. The distinction between excess of jurisdiction and the ab- sence of all jurisdiction is to some extent discussed in former chapters. It there appears that apparently what is termed by some courts an excess of jurisdiction is by others classed as mere error. Yet, with respect to the question of civil liability -of the judge, the latter distinction is of no importance. "Where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his de- termination in these particulars the validity of his judgments may depend.' And for error of judgment in these respects the judge is not to be held civilly responsible. The only dis- tinction, therefore, in the application of the rule which can be drawn between those cases where the judge or court is with- out jurisdiction of the subject-matter and those where his acts are merely in excess of his jurisdiction is that, in the for- mer, civil liability attaches for the exercise of authority know- ingly usurped, while in the latter, in many jurisdictions, there is no such liability, either for wilful act, or malicious or corrupt motives. In the one case there is a liability conditioned upon 1 Bradley v. Fisher, 13 Wall 335. § 897.] LIABILITY OF JUDGES AND OFFICEES. 1073 knowledge, while in the other there is absolute exemption. In the opinion in the case above cited the learned judge who wrote it seeks to illustrate the distinction here referred to. He states: "Thus, if a probate court, invested, only with au- thority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, ju- risdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exer- cise of usurped authority. But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense which is not by law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial considera- tion whenever his general jurisdiction over the subject-matter is invoked." The distinction noted was further illustrated by the particular matter in the case which the supreme court of the United States had under consideration. The plaintiff in that action alleged that the act of the judge in summarily dis- barring him for offensive misconduct and language spoken proceeded from malicious and corrupt motives, and that the order disbarring him was so corruptly and maliciously fabri- cated to give color and pretense to his jurisdiction in the prem- ises; and it was further alleged that plaintiff had not been given an opportunity to be heard. The court had general ju- risdiction with respect to contempts, and no liability could be predicated upon the manner of the exercise of that jurisdic- tion. Note.— The court discussed not only the power but the duty of the court with respect to disbarment, as well as the duties and obligations of attor- neys. It was said: " The power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice incompatible with a 107J: JUDICIAL POWEES. [§ 897. proper respect of the court for itself, or a proper regard for the integrity of the profession. And, except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, the power of the court should never be exercised without notice to the oflfending party of the grounds of complaint against him, and affording him ample opportu- nity of explanation and defense. This is a rule of natural justice, and is as applicable to cases where a proceeding is taken to reach the right of an attorney to practice his profession as it is when the proceeding is taken to reach his real or personal property. And even where the matter's constitut- ing the grounds of complaint have occurred in open court, under the per- sonal observation of the judges, the attorney should ordinarily be heard before the removal is made; for those matters may not be inconsistent with the absence of improper motives on his part, or may be susceptible of such explanation as would mitigate their offensive character-, or he may be ready to make all proper reparation and apology. Admission as an attor- ney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the pro- fession it is the means of support to themselves and their families. To de- prive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should there- fore never be decreed where any punishment less severe, such as reprimand, temporary suspension or line, would accomplish the end desired. But, on the other hand, the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the bar, is not merely to be obedient to the constitution and laws, but to maintain at all times the respect due to courts of justice and judicial offi- cers. This obligation is not discharged by merely observing the rules of court- eous demeanor in open ooui-t, but it includes abstaining out of court from all insulting language and offensive conduct towards the judges pereonally for their judicial acts." Quoting the language of Chief Justice Gibson, the judge continues: "In matters collateral to official duty, the judgeas on a level with the members of the bar as he is with his fellow-citizens; his title to distinction and respect resting on no other foundation than his virtues and qualities as a man. But it is nevertheless evident that professional fidelity may be violated by acts which fall without the lines of professional func- tions, and which may have been performed out of the pale of the court. Such would be the consequences of beating or insulting a judge in the street for a judgment in court. No one would pretend that an attempt to control the deliberation of the bench by the apprehension of violence, and subject the judges to the power of those who are or ought to be subordi- nate to them, is compatible with professional duty or the judicial independ- ence so indispensable to the administration of justice. And an enormity of the sort, practiced but on a single judge, would be an offense as much against the court, which is bound to protect all its members, as if it had been repeated on the person of each of them, because the consequences to suitors and the public would be the same; and whatever may be thought in such a case of the power to punish for contempt, there can be no doubt of the existence of a power to strike the offending attorney from the roll." § 898.] LIABILITY OF JUDGES AND OFFICERS. 1075 Sec. 898. Distinction between lack of jurisdiction and error of judgment.— Throughout the whole scope of this work it has been our object and purpose to discuss and illustrate the dis- tinction between want of jurisdiction and error of judgment merely. So many remedies are made dependent upon the jurisdiction, or want of it, of courts or tribunals that the ques- tion here stated becomes one of great importance. Thus it has been stated that a judgment in certain cases may be as- sailed collaterally where jurisdiction was wanting, and instances were given where certain acts or omissions were held to have been of such a character as to either deprive the court of or fail to invest it with jurisdiction. So, also, the general rule is stated that a person held in restraint under criminal process or judgment will not be released upon habeas corpus unless the court or officer was without jurisdiction in the premises, and instances were given illustrating the application of the rule- So, also, it has been stated that certiorari only lies to reach jurisdictional defects, and the rule has also in its application been illustrated. Yet it must not be assumed that in every such case where it has been held that the judgment or other proceeding was void for want of jurisdiction that a civil action would lie against the judge before whom the proceedings were had. Some of those cases involve the question of excess of jurisdiction, which is not a ground for civil liability. Others involve the question of a want of jurisdiction to render the par- ticular judgment, though the subject was within the jurisdiction of the court. We have also seen that where a court proceeds under an invalid law its judgment is void ; that it is without jurisdiction. Yet such is not a ground for a civil action against the judge. There are some courts, however, which do not ac- cept the doctrine that if a law is in fact void, as being in vio- lation of constitutional provisions or for other reasons, the court is without jurisdiction. Their decisions are to the effect that the court has jurisdiction to pass upon every question in- volved in the action, including the validity of the law imposing the penalty or conferring the right, as the case may be. That the judgment, so long as it remains unreversed, is for every pur- pose conclusive between the parties, and upon every question necessarily embraced in the judgment. In courts where such 1076 JUDICIAL POWERS. [§ 898. doctrine prevails, of course, no civil liability can be predicated upon an erroneous decision as to the validity of any law. In courts which adhere to the contrary rule, I do not think that any liability would arise from an erroneous decision upon that question. The court may have jurisdiction, if it be a criminal case, of offenses of the class defined, or, if the action is civil in character, it may have general jurisdiction of the subject-matter of private rights. The jurisdiction of the court in such cases does not depend upon the act which is challenged, but upon its inherent general powers derived from the constitution itself or possibly from general statutes. The particular judgment maj^ be void by reason of the invalidity of the law, and the jurisdic- tion of the court with respect to that particular matter may be wanting, by reason of the invalidity of the act, but the general jurisdiction of the court is not affected. It may be that the liability to confusion with respect to this question was the in- centive which caused courts to declare that in order to consti- tute any civil liability, in cases where the court was in fact without jurisdiction, it must appear that it had knowledge that such was the fact. With this limitation the doctrine of all courts is that a judge of a court of general jurisdiction is not liable in a civil action for errors of judgment, whether they proceed from a mistaken view of the law or of the facts, or with respect to his own jurisdiction.^ There would seem to be the same objection to calling upon a judge to defend against an accusation that he knew he was without jurisdiction as is urged in cases where the accusation is that he acted from cor- rupt or malicious motives. This reasoning was aptly stated by Chief Justice Shaw in Pratt v. Gardner, 2 Gush. 68, who said: " If it be said that it may be conceded that the action will not lie unless in a case Avhere a judge has acted partially or cor- ruptly, the answer is that the losing party may always aver that the judge has acted partially or corruptly, and may offer testimony of bystanders or others to prove it, and these proofs are addressed to the court and jury before whom the judge is called to defend himself; and the result is made to depend not on his own original conviction, the conclusion of his own mind in the decision of the original case, as by the theory of juris- iHallock V. Doming, 60 N. Y. 238; Londegan v. Hammer, 30 Iowa, 508. § 899.] LIABILITY OF JUDGES AKD OFFICERS. 1071 prudence it ought to do, but upon the conclusions of other minds, under the influence of other and different considerations." If the question of the knowledge on the part of the judge of his want of jurisdiction may be determined upon evidence of a similar character, the same results must" evidently follow. It is true that some courts hold to the opinion that the corrupt mo- tives actuating a judge constitute a ground of civil liability and may be the subject of proof, but it may be said that the over- whelming weight of authority is against it. The Iowa court, while not directly passing upon the question, indicated very clearly its views,' but subsequently they were changed.^ Sec. 899. Warrant or indictment not charging an offense. When a judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and no liability attaches upon his erroneous de- cision. Thus, where a complaint was presented to a justice setting forth certain facts claimed to constitute a criminal of- fense, when no offense was in fact charged, as was finally de- termined, it was held no action would lie against the justice, and this on the ground that his jurisdiction was invoked by the proper agencies of the law, and thus the question of his right to act in the premises was colorably before him, and it became his duty to decide the question of his jurisdiction.'' And where a defendant was arrested in a county other than where the vfarrant was issued, and the question was directly presented of the legality of the arrest, it was said : " Whether the plaintiff was legally arrested or not, he was brought before the justice under a warrant duly issued against the plaintiff, and the justice had jurisdiction to determine the question whether the arrest was sufficiently regular to give him juris- diction to proceed with the investigation. Whether his decis- ion was right or wrong is immaterial. It was a judicial decision of a question within the general scope of the jurisdiction of the justice, for which he is not answerable in a civil action."* In the case cited the justice held the party to the district court iLondegan v. Hammer, 30 Iowa, 3 Grove v. Van Duyn, 44 N. J. L. 654. 508. ILondegan v. Hammer, 30 Iowa, i Home V. Pudil, 88 Iowa, 533. 508. 1078 JUDICIAL POWEES. [§ 900. for trial, and it was insisted that, as the matter was within the jurisdiction of the justice, such proceeding was not only erroneous but beyond his jurisdiction. It was said: " The jus- tice had jurisdiction over the subject-matter, and whether he should try the cause himself, or commit the accused for trial in the district court, depended entirely upon the value of the property taken, shown by the proof. This determination in- volved the decision of questions of law and fact." Those cases are cited here for the purpose of illustrating the rule stated. We shall presently consider the general question in its applica- tion to justices of the peace and inferior judicial oflBcers, where it appears in many jurisdictions the exemption from liability of such officers is not so extended as is the liability of judges of superior courts, and some cases may be cited which are not in entire harmony with those above referred to. Note. — Where the contention was that the law prescribing an offense and fixing a penalty was void, as being beyond legislative power, and the plaintiff was convicted and imprisoned, it was said : " The justice of the peace had jurisdiction of the subject-matter of the action, being for the recovery of a penalty less than $200. He had jurisdiction, by the personal service of a summons, of the defendant therein, the present plaintiff, and no objection was taken to the form or the regularity of the proceedings. The jurisdiction of the magistrate was not derived from, and did not de- pend upon, the act which is challenged, but upon the general statutes of the state. He had jurisdiction to pass upon every question involved in the action, including the validity of the law imposing the penalty.'' Hallock v. Downing, 69 N. Y. 238. Sec. 900. Exemption only applies to judicial acts. — An- other exception to the general rule is that, to be free from liability, the act must be done by a judge in his judicial capac- ity — as a judicial act.^ Thus, where it was alleged that the act of a judge in resentencing a prisoner had been declared to be in excess of his jurisdiction, the proposition was stated by the court: "Did the defendant impose the second sentence as a judge; or, although he was at the moment of right upon the bench, and authorized and empowered to exercise the functions of a judge, was the act of resentencing the plaintifp so entirely without the jurisdiction which he then had as judge as that it iLange v. Benedict, 73 N. Y. 13. § 900.] LIABILITY OF JUDGES AND OFFICEES. 1079 was an arbitrary and unlawful act of a private person ? For it is plain that the fact that a man sits in the seat of justice, though having a clear right to sit there, will not protect him in every act which he may choose or chance to do there. Should such an one, rightfully holding a court for the trial of civil actions, order the head of a bystander to be stricken off, and be obeyed, he would be liable. Thus, a person in the office of judge of the ecclesiastical court in England excommunicated one for refusing to obey an order made in a matter then law- fully before the court for adjudication and of which he as judge had jurisdiction. He was held liable to an action. Citing Beau- ram, V. Sir Wm. Scott, 3 Campb. 388. He had not, as judge, jurisdiction of the person to whom he addressed the order. On the other hand, one rightfully holding a court for the trial of a criminal action fined and imprisoned a juror for that he did not bring in a verdict of guilty against one on trial for an offense, after the court had directed the jury that such a ver- dict was according to the law and facts. The juror was dis- charged from imprisonment on habeas corpus brought in his behalf, and it was held the act of fining and imprisoning him was unlawful, inasmuch as there was no allegation of corrup- tion or like bad conduct against the juror. The juror then brought an action against him who sat as judge and made the order, but took nothing thereby ; for it was held that the judge acted judicially as judge, as he had jurisdiction of the person of the juror and jurisdiction of the subject-matter, to wit: the mat- ter of punishing jurors for misbehavior as such, and that his judgment that the facts of that case warranted him in inflict- ing punishment was judicial error, to be avoided and set aside in due course of legal proceedings, for which, however, he was not personally liable." Citing Hammond v. Howell, 2 Mod. 218. The New York court proceeds to discuss the abstract ques- tion of jurisdiction, attempting to define or characterize the term " subject-matter " with probably little more success than those who have attempted to define the term " beyond a rea- sonable doubt." They say: "It is the general abstract thing which is the subject-matter. The power to inquire and adjudge whether the facts of each particular case make that case a part or an instance of that general thing, that power is jurisdic- 1080 jumciAL powEEs. [§ 901. tion of the subject-matter. . . . The inquiry is whether the court had judicial power to consider and pass upon the facts presented and to determine and adjudge that an act based upon them would be lawful or unlawful." Speaking with reference to the facts of the particular case, the court proceeded to say : " That (the federal) court also had jurisdiction of the subject-matter. It might by law indict and try persons charged with stealing and appropriating mail-bags ; it might pass sen- tence upon them when duly convicted of iine and imprison- ment. . . . This was the subject-matter, the general matter then before the court. The particular matter or question pre- sented was the sentence of fine and imprisonment passed upon the plaintiff." The exemption does not extend to every illegal act which a judicial officer may have done in the exercise of his ministerial powers and duties. Where, therefore, in th& progress of a civil action or a criminal proceeding a final judgment has been rendered, his judicial duty is at an end and nothing remains but to carry the judgment into effect. The issue of the execution or other warrant for that purpose is a ministerial and not a judicial act, and he may be held respon- sible in a civil action for any illegal act of that description.' Sec. 901. Distinction between judicial and ministerial acts. The judicial character of the officer is not a protection in such cases, as we have had occasion to say in other parts of this work. It is the character of the act, and not the character of the office, that determines the question of liability. It is not always an easy task to draw the line between acts that are judicial and those that are ministerial when performed by a judicial officer, and an attempt to enumerate or classify those that are judicial or those that are ministerial would fail. Some illustrations, however, may be given. Thus, a magistrate must issue his commitment upon the sentence, and if he suffer the prisoner to go at large for any considerable length of time after sentence and before commitment without any intermediate pro- ceeding, he will be liable as a trespasser.^ The rule which for- bids inquiry as to the motives which may have actuated such an officer in the discharge of his official duties does not apply; 1 Fisher v. Deane, 107 Mass. 118. 2 Fisher v. Deane, 107 Mass. 118. § 901.J LIABILITY OF JUDGES AND OFFICEES. ' 1081 hence it is competent to show that the illegal ministerial act was done with corrupt motives and for dishonest purposes.' It has been held that the act of a justice in entering up judgment,' in issuing an execution,^ or in entering stay of execution,* are purely ministerial acts. This result follows from the fact that his duties in those respects are fixed by law and do not involve the exercise of any discretion. So it has been held that the granting of a marriage license is a ministerial act ; ^ and in some jurisdictions the granting of a license to sell intoxicating liq- uors is a ministerial act, and for refusal to grant license to one entitled thereto, the officer is liable in a civil action.* The distinction between judicial and ministerial acts becomes of great importance. Much time and space has been devoted in the attempt to make the distinction clear in the discussion of the subject of mandamius. That the question oftentimes is one of difficulty is everywhere conceded. Many cases are re- ported in the books where the duties of a judicial officer are judicial in particular proceedings to a certain stage, when there- after, as to subsequent proceedings, they are ministerial merely. Again, the general character of the office furnishes no universal test ; ministerial officers, so called, exercising in many instances judicial functions, and judicial officers performing ministerial duties. Nor does the mere fact alone that in performing a duty some degree of discretion or judgment is to be exercised give character to the act as judicial; for such, to some extent, must be exercised in the performance of the plainest ministerial acts. Quite generally, however, when the officer is clothed with a dis- cretion as to the doing or not doing of a particular act, his determination in the matter is judicial, and also where he may exercise a discretion as to the manner in which the act shall be done. Thus, the duty on the part of a clerk of court in issuing an execution is ministerial, yet some discretion is in- volved. He is required to determine whether the decree or judgment has been duly entered which authorizes it, and must exercise his judgment to this extent. A familiar illustration is the approval of bonds. This duty may be either judicial or 1 Fisher v. Deane, 107 Mass. 118. * Kerns v. Schoonmaker, 4 Ohio, 331. 2 Hall V. Tuttle, 6 Hill, 38. 5 Wood v. Farrell, 50 Ala. 546. 3 Briggs V. Wardwell, 10 Mass. 356. « Grider v. Tally, 77 Ala. 433. 1082 JUDICIAL POWEES. [§ 902. ministerial. If the duty is to approve when certain conditions appear, then the duty is ministerial, though the officer neces- sarily must determine whether they are in conformity to the law which prescribes them. On the other hand, if that duty is to approve only upon being satisfied that certain conditions exist which are not prescribed by law, but which the officer is to determine from extrinsic evidence, or from knowledge or information which he may have or otherwise acquire, such, for instance, as the sufficiency or solvency of sureties, then his determination is judicial. Sec. 902. Judges of inferior courts. — In general terms it is frequently expressed by courts that the general rule with respect to the civil responsibility of judges applies equally to inferior as well as to superior courts. Thus, it was stated by Chief Justice Shaw in a leading case {Pratt v. Gardner, 2 Gush. 68): "It is a principle lying at the foundation of all well- ordered jurisprudence that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law and deciding upon the rights of others, should act upon his own free, unbiased convictions, uninfluenced by any apprehen- sion of consequences. . . . These rules extend as well to justices of the peace as to any other judicial officer acting within his jurisdiction in a judicial matter." ^ It was also stated by Beardsley, J. (in Wilson v. New York, 1 Denio, 595): " No action lies in any case for misconduct or delinquency, however gross, in the performance of official duties; and al- though the officer may not in strictness be a judge, still, if his powers are discretionary, to be exerted or withheld according to his view of whatever may be necessary or proper, they are in their nature judicial, and he is exempt from all responsibility by action for the motives which influence him and for the man- ner in which such duties are performed." Such language, stated without qualification, is misleading in those states where a distinction is recognized between superior and inferior courts; for it is not universally true that the general rule applies alike to all courts or the acts of officers exercising judicial power. On the contrary, the rule is quite general that judges of in- 1 See also Loudegan v. Hammer, 30 Iowa, 508, and cases cited. § 902.] LIABILITY OF JUDGES AND OFFIOEES. 1083 •ferior courts, such as justices of the peace, are liable in a civil action, not only where their acts are without all jurisdiction, but also where they exceed the powers and jurisdiction conferred. The reason for this distinction was stated by Justice Cooley in his work on Torts, page 491, as follows: " Why the law should protect the one judge and not the other ; and why, if it pro- tects one only, it should be the very one who, from his higher position and presumed superior learning and ability, ought to be most free from error, are questions of which the following may be suggested as the solution: The inferior judicial oflficer is not excused for exceeding his jurisdiction because, a limited authority only having been conferred upon him, he best ob- serves the spirit of the law by solving all questions of doubt against his jurisdiction. If he errs in this direction no harm is done, because he can always be set right by the court hav- ing appellate authority over him, and he can have no occasion to take hazards so long as his decision is subject to review. -The rule of the law, therefore, which compels him to keep within his jurisdiction at his peril cannot be unjust to him, be- cause, by declining to exercise any questionable authority, he can always keep within safe bounds, and will violate no duty in doing so. Moreover, in doing so, he keeps within the pre- sumptions of the law ; for these are always against the right- fulness of any authority in an inferior court which under the law appears doubtful. On the other hand, when a grant of general jurisdiction is made, a presumption accompanies it that it is to be exercised generally until an exception appears which is clearly beyond its intent. Its very nature is such as to con- fer upon the officer intrusted with it more liberty of action in deciding upon his powers than could arise from a grant ex- pressly confined within narrow limits ; and the law would be inconsistent with itself if it were not to protect him in the ex- ercise of his judgment. Moreover, for him to decline to exer- cise an authority because of the existence of a question when his own judgment favored it would be to that extent to decline the performance of duty and measurably to defeat the purpose of the law creating his office; for it cannot be supposed that this contemplated that the judge should act olficially as though all presumptions opposed his authority when the fact was di- rectly the contrary." 1084 JUDICIAL POWERS. [§§ 903, 904. Sec. 903. Reasons given for the distinction between judges of superior and those of inferior courts criticised. — It thus appears, if we assume the statement of the learned, author and jurist as correctly defining the reason for the dis- tinction referred to, that it is founded upon the right whicH the inferior magistrate may exercise at will, of refusing to en- tertain jurisdiction of proceedings. Because he has this right he must not take any hazard. This logic would be more for- cible if it secured absolute freedom from error. A question may be presented that is apparently free from doubt. In fact the circuit court to which the case is aj^pealed may concur in the opinion of the magistrate ; yet the supreme court, as is often the case, may be of a different mind. The one is exempted from liability, the other is not. Take, for instance, the question of the validity of a statute. The question may not be raised before the justice, or if it is, is it to be expected that such an officer, unless in a very clear case, will take the responsibility of declaring the statute void or in conflict with the provisions of the constitution? Suppose such an officer should decline to try a person for a crime on the ground that he had doubts as to the validity of the law, or refuse to examine when brought before him one accused of a felony, for the same reason? "Would it be said that the proper enforcement of the criminal laws should be suspended, and prisoners discharged, because of the existence of such a doubt or of fear of the possible con- sequences that might be occasioned the officer? It is said his action may be reviewed. Not so in criminal matters. If he should exercise jurisdiction then his errors may be corrected. Why should he not have the same liberty of action, the same independence of thought and judgment, as that accorded to superior judges? Why should he be made responsible for errors of judgment which the latter is exempted from? are questions to which, as we have said, no satisfactory answer can be given. Sec 904. Doctrine of the New Yorli court. — We have seen ante that the New York court was one which held strongly to the doctrine of the exemption from liability of judges of su- perior courts.^ The same general rule was announced in an 1 Lange v. Benedict, 73 N. Y. 13, § 904.J LIABILITY OF JUDGES AND OITICEES. 1085 earlier case with respect to the acts of a justice of the peace, in substance that, when facts arise which give him power to consider the question, he has the right to adjudicate upon them. The same result, however, was not reached as in the later case, though there is nothing in the opinion to indicate that the fact that the officer was an inferior magistrate affected the result. A justice of the peace had imprisoned a witness for refusing to answer a question. The important question, in an action for false imprisonment brought against the jus- tice, was said by the court to be, whether the defendant^ upon the facts now shown had the power to commit the plaint- iff for contempt. That he had jurisdiction of the person of the plaintiff and of the subject-matter then pending did not give him judicial authority to adjudge her guilty of a contempt and to imprison her therefor. To have that authority there must have arisen before him facts which gave him power to consider the question whether there had been a contempt committed by her. It seems that, as a prerequisite to such a commitment, there was required an oath of the materiality of the testimony, and because it did not appear that such an oath was made it was held that the justice had no judicial authority to adjudge the plaintiff guilty of contempt.^ The same court in a later case, which was an action for false imprisonment by reason of the plaintiff having been committed for contempt, not brought, however, against the judge, but against attorneys, took occasion to distinguish between a void process and one that was irregular merely. With reference to the latter it was said : " Irregular process is such as a court has general jurisdic- tion to issue, but which Is unauthorized in the particular case by reason of the existence or non-existence of some fact or cir- cumstance rendering it improper in such case." ^ The justice in the case above referred to had jurisdiction to punish for con- tempts of the character there stated, but not in the particular case, by reason of the omission of an essential matter. He sim- ply acted in excess of his jurisdiction in the particular case, and the judgment was therefore void. As we have seen, acts in excess of jurisdiction of a judge of a court of general juris- diction, though they may render the judgment void, are not 1 Rutherford v. Holmes, 66 N. Y. 368. 2 Fisher v. Langbien, 103 N. Y. 84. 1086 JUDICIAL POWEES. [§ 905. sufficient as a ground for a civil action against a judge. The court here recognized the distinction between judges of su- perior and inferior courts, and held that the latter were liable for judicial acts in excess of their jurisdiction. The omission to take some. preliminary step which is made a prerequisite to the first act is not the same in its effect upon the question of jurisdiction as where the step has been taken, but is not in sub- stance in conformity to or sufficient in law. In the former class of cases the whole proceeding is void, and, as we have seen, an inferior magistrate is not protected. In cases of the latter class, in most jurisdictions, superior as well as inferior ju- dicial officers are alike protected. Thus, where a party was committed for contempt, and the act or conduct did not consti- tute a contempt under tlie statute, it was held that it was within the power of the court to determine the question whether the matter complained of was a contempt under the statute, and an erroneous decision of the question did not at all affect the power to determine it.' Sec. 905. Warrant not charging an offense. — "Where a ju- dicial officer had awarded a capias upon affidavits which did not disclose such a cause of action as subjected the defendant to arrest therefor, it was held that the judge was exempted from liability by reason of the judicial character of his deter- mination ; ^ and where a county judge granted an order of arrest, Avhich was afterwards vacated on the ground that the affidavit upon which it was founded did not show sufficient cause, it was held that the decision and order protected the partj^ applying for it, and the attorney and all persons acting in obedience to the order.' In some jurisdictions, however, even the rule last stated is not recognized; but on the contrary, it is held that when the complaint or warrant does not in fact charge an offense, the justice and all persons acting under it are liable. Thus, in Ohio, where a justice of the peace issued his warrant and proceeded as if the complaint therein charged the crime of larceny, when in fact the acts charged, if truly stated, showed 1 Fisher v. Langbien, 103 N. Y. 84. a Landt v. Hills, 19 Barb. 383. See 2 Harmon v. Brotherson, 1 Denio, also Marks v. Townsend, 97 N. Y. 590; 537. Miller v. Adams, 53 N. Y. 409. § 905.] LIABILITY OF JUDGES AND OFFICEES. ' 1087 the defendant guilty of a bare trespass, it was held he acted without jurisdiction, as upon such complaint he had no authority to issue his warrant; that his misjudgment of the law, though honest, afforded him no relief.^ Note.— The general rule as fully discussed in other parts of this work is that a defect in an indictment to the extent that it does not charge an offense is not jurisdictional See ante, sees. 13, 14, 321, 439. It was held in another state that a warrant in the form pro- vided in criminal cases against a party proceeded against for a forfeiture enforceable, only by civil action, though irregular and liable to be set aside on motion, is not void, and the justice who issues it is not liable in an action for false imprison ment.^ The decision of the Ohio court is in direct conflict with a de- cision of the E"ew Jersey court. In the latter state it was held that, where a judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and no liability attaches upon his erroneous decision. ' That where a complaint is presented to a justice set- ting forth certain facts claimed to constitute a criminal offense, when no offense was in fact charged, no action would lie against the justice, and this upon the ground that his jurisdiction was invoked by the proper agencies of the law, and thus the ques- tion of his right to act in the premises was colorably before him, and it became his duty to decide the question of his juris- diction.' A question somewhat similar was presented to the Iowa court, which reached the same conclusion and upon sub- stantially the same grounds as that reached by the New Jersey court. There the defendant was arrested in a county other than where the warrant was issued, and the question directly pre- sented was the legality of the arrest. It was stated by the court : " Whether the plaintiff was legally arrested or not, he was brought before the justice under a warrant duly issued against him, and the justice had jurisdiction to determine the question whether the arrest was sufficiently regular to give him juris- diction to proceed with the investigation. "Whether his decision iTruesdell v. Combs, 33 Ohio St. 'Grove v. Van Duyn, 44 N. J. L. 186. , 654. 2 Carter v. Dow et al., 16 Wis. 398. 1088 JUDICIAL POWEES. [§ 905. was right or wrong is immaterial. It was a judicial decision of a question within the general scope of the jurisdiction of the justice, for which he is not answerable in a civil action." * The doctrine of the Ohio court is not without support in some other jurisdictions. The doctrine of the Yermont court is that judges of superior and inferior courts are alike protected, not observing the distinction in favor of the former heretofore noted. Yet it was held in that state that a justice was personally liable for issuing a warrant for, and in confining one accused of, larceny, where it appeared upon the face of the complaint that the crime had been committed more than six years prior to the issuing of the warrant; the statute of that state providing that, if complaint be brought after that time, the proceeding shall be void and of no effect. The justice evidently construed the lim- itation to mean that the term commenced to run from the time of the discovery of the fraud or crime. The dissenting opin- ion in the case is very strong and able.^ Likewise the court of Maine is in accord with the Ohio court. Thus, it was there held that a warrant issued by an inferior court, where it ap- pears upon its face that the court had no authority, will not protect the officer who executes it. That where a justice of the peace has jurisdiction of a criminal offense, but instead of pro- ceeding to trial requires him to find bail for his appearance'at a future term of the supreme judicial court, and to be com- mitted for want of such bail, that the officer executing the pro- cess is not protected.' In the Iowa case cited * the justi(je had, in the action which was made the basis of that action, held the party to the district court for trial, and it was urged that, as the matter was within the jurisdiction of the justice, such pro- ceeding was not only erroneous, but beyond his jurisdiction. It was said the justice had jurisdiction over the subject-matter, and whether he should try the cause himself or commit the accused for trial in the district court depended entirely upon the value of the property taken, as shown by the proof. This determina- tion involved the decision of questions of law and fact. It may also be said that the Indiana court is in harmony with the doc- iLondegan v. Hammer, 30 Iowa, "Porter v. Eeed, 75 Me. 488. 508. xirn, 3 Best & Smith, 576, which was a case where one of the judges was sued for a judicial act, and on demurrer one of the objections taken to the declaration was that it was bad in not alleg- ing malice. Judgment on the demurrer having passed for the defendant, the plaintiff applied for leave to amend his declara- tion by alleging malice and corruption. Mr. Justice Corapton replied : " It is a principle of our law that no action will lie against a judge of one of the superior courts for a- judicial act, though it be alleged to have been done maliciously and cor- ruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent them being harassed by vexatious actions." 1100 JUDICIAL POWEES. [§ 909. The "Wisconsin court state that judges are not liable either for mistakes, errors of judgment or corrupt conduct.^ It was also stated by Shaw, C. J., in a leading case in this country: " If it be said that it may be conceded that the action wiU not lie unless in a case where a judge has acted partially or cor- ruptly, the answer is that the losing party may always aver that the judge has acted partially or corruptly and may offer testimony of by-standers and others to prove it, and these proofs are addressed to the court and jury before whom the judge is called to defend himself, and the result is made to depend, not on his own original conviction, the conclusion of his own mind in the decision of the original case, as by the theory of juris- prudence it ought to do, but upon the conclusion of other minds under the influence of other and different considera- tions." The supreme court of Iowa for a time were evidently in doubt, though the leaning was to the view above expressed.^ Subsequently they state that it is settled beyond all contro- versy that a judge of any court, whether of limited or general jurisdiction, is not liable in a civil action for acts done in his judicial capacity and within his jurisdiction, even though it be alleged that the acts complained of were done maliciously and corruptly.' Quite recently, however, and without any attempt at explanation, that court held that an action would lie against a justice of the peace to recover damages for certain alleged wrongful and malicious acts which prevented the plaintiff from taking an appeal from a judgment rendered before such justice. The particular act alleged was the making of a false entry in his docket.'' The supreme court of California in Turpee v. Booth, 56 Cal. 65, and the supreme court of Maine in Tyler v. Alford, 38 Me. 530, recognize the general rule of non-liability. The former is in accord with what was said in Weaver v. Daven- port, 3 Denio, 120, and quotes it approvingly; and it may be stated that sach rule is recognized by far the greater number of courts. It cannot be said, however, that the court of appeals 1 Land, Log & Lumber Co. v. Mc- ^ Joaes v. Brown, 54 Iowa, 74 Intyre, 100 Wis. 258. ■'Home v. Pudil, 88 Iowa, 533. ^Wasson v. Mitchell, 18 Iowa, 153; Londegan v. Hammer, 30 Iowa, 508. § 909.] LIABILITY OF JUDGES AND OFFICEKS. 1101 of ISTew York adopted it. In the early case of Yates v. Lans- ing, 5 John. 282, which several times was before the courts, and where the subject was most elaborately reviewed by Kent, C. J., the result of his investigation was that no case could be found in the books wherein suit was maintained against the members of superior courts of general jurisdiction for any act done by them in a judicial capacity. He says : " The doctrine which holds a judge exempt from civil suit or indictment for any act done or omitted to be done by him sitting as judge has deep root in the criminal law. It is to be found in the earliest records, and it has been steadily maintained by an undis- turbed current of decisions in the English courts amidst every change of policy and through every revolution of their govern- ment." Speaking further with reference to the statute provid- ing a penalty for re-arrest of a person discharged upon habeas corpus he proceeds to state: " The penalty is given only for the voluntary and wilful act of individuals acting in a private or ministerial capacity. It is a mulct, and given by way of punish- ment. The person who forfeits it must knowingly, contrary to the act, re-imprison or cause the party to be re-imprisoned. There must be the scienter or intentional violation of the stat- ute, and this can never be imputed to the judicial proceedings of a court. It would be an impeachable offense, which can never be averred or shown but under- the process of impeachment. No man can foresee the disastrous consequences of such a suit. "Whenever we subject the established courts of the land to the degradation of private prosecution we subdue their independ- ence and destroy their authority. Instead of being venerable before the public they become conteihptible ; and we thereby embolden the licentious to trample upon everything sacred in society, and to overturn those institutions which have hitherto been deemed the best guardians of civil liberty." Subsequently it was declared: " No action lies in any case for misconduct or delinquency, however gross, in the performance of judicial du- ties. ... He (the judge) is exempt from all responsibility by action for the motives which influence him and the man- ner in which such duties are performed ; if corrupt, he may be impeached or removed, but the law will not tolerate an action 1102 JUDICIAL POWEES. [§ 909. to redress any individual wrong he may have done."^ And again: " It is undoubtedly a general rule of law that if a judi- cial officer, in making a decision upon a matter within his juris- diction, acts erroneously, no action will lie against him for damages, even though he is actuated by malice." ^ However, the court of appeals in referring to the rule stated that " an action will not lie for acts done under process regular on its face, and which the magistrate has jurisdiction to issue, unless the acts be malicious." * The action was against persons who ex- ecuted the process. Subsequently, where an action was brought against tax commissioners to recover damages resulting from their alleged illegal action, it was stated : " But however that may be, it is apparent that the defendants, as commissioners, had jurisdiction over the person of the shareholder and over the subject of the tax. In dealing with the question brought before them they exercised a judicial function, and if in error, no action lies against them unless that error was perpetrated Tnalidously ." ^ It is true the remark was made concerning an inferior board or officer; but the court of that state had an- nounced that the rule applied to all officers, high or low, judi- cial or ministerial, when exercising judicial powers.^ And in the absence of qualifying words there is no reason why we ought not to assume that the evident departure from the rule, thus declared in the later case, was intended to be general in its ap- plication, unless it should be that there are no cases where judges of superior courts have thus been held liable. It was held by the "Wisconsin court that the members of a board of equalization of taxes were not liable in a civil action while acting within their jurisdiction, though they acted from malicious or corrupt motives. The chief justice expressed a doubt with respect to the proposition, but deferred to the judg- ment of his associates. The reason given is that of public policy, and the argument to sustain it is, " that the duties which those officers are called upon to perform are frequently most difficult, delicate and embarrassing. The public interests require that 1 Wilson V. New York, 1 Denio, 595. < Apgar v. Hayward et aL, 110 N. Y. 2 Goetoheus v. Mathewson, 61 N. Y. 325. 420. s Wilson v. New York, supra. s HaUock V. Dowing, 69 N. Y. 238. § 909a.] LIABILITY OF JUDGES AND OFFICERS. 1103 all property not exempt should be assessed at its true value for taxation ; but many persons will resort to expedients to evade the proper assessment of their property, including deception and intimidation, and that, as a consequence, timid officers may be deterred from a proper discharge of their duties if made liable in a civil action upon a charge of malice or corruption." In support of their position they quote what was said by Beards- ley, J., in Weaver v. Davenj)ort, 3 Denio, IIT, " that no public officer is responsible in a civil action for a judicial determina- tion, however erroneous it may be, and however malicious the motive which produced it. Such acts, when corrupt, may be punished criminally; but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty. The rule extends to judges from the highest to the lowest, to jurors and to all public officers, whatever name they may bear, in the exercise of judicial power." ^ The Iowa court, in a recent case, held that a justice of the peace was liable in a civil action where he acted maliciously and from corrupt motives in making a false entry upon his docket with respect to the taking of an appeal and allowing the appeal. The duty in that case rasij have been held to have been ministerial, though it is not so expressed.^ Sec. 909a. Rule as applied to judges of inferior courts and officers exercising judicial powers. — The question which now confronts us, viz. : "Whether the rule, not as declared, but as ap- plied, includes judges of inferior courts and officers exercising judicial powers, is not only important but difficult to determine. There is no reason why in its application to strictly judicial officers there should be made any distinction. The reasons given by Cooley and others, for the distinction heretofore re- ferred to, in favor of the exemption of judges of superior courts where they are acting in excess of their jurisdiction, and deny- ing such exemption to judges of inferior courts, has no applica- tion. The consequences of malice and corrupt conduct are the same in the one case as the other, and their effect upon the ad^ 1 Steele v. Dunham et al., 36 Wis. ^Horne v. Pudil, 88 Iowa, 533. See 333. also Tyler v. Alf ord, 38 Me. 530. 1104 JUDICIAL POWEES. [§ 909a. ministration of justice must evidently be precisely the same. No question of care in the assumption of responsibility is in- volved. There may be a satisfactory reason why the exemp- tion should not extend to all who may be in the exercise of judicial powers. Eesponsibility should be felt and appreciated. Judges are liable to impeachment. Yet the impeachment of a ministerial officer Arho has but a simple duty to perform that is judicial in character would be an unheard-of proceeding. And unless an action for damages will lie, there is practically no restraint upon their official action. Note. — It is not meant to be understood that such officers are not liable to impeachment. Public officers of every grade and; description may be impeached for official misconduct or corruption. Wilson v. New York, 1 Denio, 595. It is too evident to be gainsaid that in many jurisdictions, even where their courts declare that the rule extends to all officers while in the exercise of judicial powers, a distinction is made against judges of inferior courts and such officers, and it is held, if not declared, that they are liable for injurious consequences occasioned by motives of malice or corrupt con- duct. The supreme court of Iowa is, as we have seen, among those courts which recognize the force of the general rule when applied to judges of superior courts. In an early case in that state they considered the rule in its application to inferior offi- cers ; and while stating that the nature of the duty there in question was judicial, and the officer in the performance thereof ordinarily would be within its protection, they further state (having reference to the particular act of approval of a bond) : " If in the fair exercise of their judgment they are of the opin- ion that the sureties on a bond are solvent, they are not civilly liable if mistaken, but would thus be liable if they approved a bond whose sureties were known to them to be worthless. So they would have no right to approve a bond without any sureties whatever. Such an act knowingly or carelessly done could not be regarded as a judicial act in such a sense as to exempt them from civil liabilities to any person thereby injured." ^ In 1893 that court held that an action for damages would lie against a > Wasson v. Mitchell, 18 Iowa, 153. § 909(2.] LIABILITT OF JUDGES AST) OFFICERS. 1105 justice of the peace for his wilful, malicious and corrupt con- duct in making a false entry in his docket which resulted in injury to a party to the suit. There is no intimation that the decision was placed upon the ground that the act was minis- terial, but on the contrary it was- broadly asserted that " the plaintiff had the right to show that the acts of the defendant were wrongful, malicious and corrupt, and not merely the result of the mistaken judgment of a judicial officer." ^ The supreme court of Maine emphatically declares that a justice of the peace, for any act done in his official capacity, is not liable in a civil action, but if he acts corruptly in his min- isterial duties he is liable to the party injured.^ No fault can be- found with this general statement of the rule, but in its ap- plication to the particular facts it can hardly be said it was applied. It appears the justice refused to allow an appeal upon the payment of the sum offered, but claimed he was en- titled to a larger sum. Execution was issued and the defend- ant in that suit was imprisoned. The defendant brought his action for damages. The court, after stating the general rule, proceed to say : " But in determining upon the supposed ap- peal, as well as in issuing the execution, the justice acted min- isterially in a matter demoMding the exercise of Ms discretion. In such cases he may be amenable to a party injured if he act corruptly." The criticism we make here is, not upon the determination that the acts complained of were ministerial, for one of them was certainly of such a character, but the de- scriptive character of such ministerial acts, viz.: that they ■were ministerial in a matter dem3,nding the exercise of his discretion, it being evident that if they were of such a charac- ter they were judicial acts. The only conclusion which I reach from this expression is, that in matters purely judicial, such as determining upon the evidence and deciding upon the merits, tiie justice is exempt from liability, though his deter- mination may have been actuated by corrupt motives. That as to other matters within his discretion they are ministerial acts, so to speak, of a judicial character, to which the exemp- tion from liability does not apply. 1 :^prne v. Pudil, 88 Iowa, 533. « Tyler v. Alford, 38 Me. 530. "70 1106 JUDICIAL POWEES. [§ 909«. The supreme court of Wisconsin declare the general rule, and adopt the verj' language of Beardsley, C. J. {Wilson v. New York, 1 Denio, 595). " But," they state, " such indemnity from liability incident to judicial functions goes no further than the result of the judicial act. So if a member of the auditing board, in passing upon a claim which such board has a right to audit, acts negligently or corruptly, for that alone there is no lia- bility; but if the mischief goes back further, and there is fraud in contracting the indebtedness itself, either because not au- thorized by law, although for some legitimate public purpose, or intentionally excessive, or fraudulently contracted from any other cause, liability attaches from the first act of infidelity to the public trust, if actual damage flows therefrom. The mere auditing of the claim in such a case is but a step in the scheme of fraudulently plundering the public treasury, and behind it the unfaithful ofiicer cannot successfully hide and rely on his judicial character for protection." ' Is not this an evasion of the rule? When logicallj'' considered, does it not in effect declare that such an officer is liable for judicial acts actuated by malicious or corrupt motives ? K"ow, to every judicial act that proceeds from an impure motive, the motive antedates the act, as well as the cause which creates the motive, though the fruits of the Avrong may culminate in the doing of the act. or one made possible by the act in the future. It might by the same reasoning be said that the judge of a superior court was not exempt from civil liability where his decision was, made pursuant to an agreement made before it was rendered. It i& as true in the one case as in the other that the judicial act would be but a step in consummation of the fraudulent purpose. This phase of the general question was elaborately discussed by Dwight, J., in Goetcheus v. Mathewson, ^1 N. T. 420. He states that the general rule applicable to courts of record does not ex- tend to all judicial officers. That in the case of inferior magis- trates, the act complained of, though judicial and within their jurisdiction, must, in order to shield them from responsibility, have been done honestly and in good faith (citing Shear. & Eedf . on Negligence, sec. 160, and cases cited). Accordingly, if malic© is shown, they will be liable to an action. He is speaking 1 Land, Log & Lumber Co. v. Molntyre, 100 Wis. 245. § 910.] LIABILITY OF JUDGES AND OFFICEES. 1107 for himself alone and not for the court. He demonstrates the, correctness of this proposition by reference to many author- ities, and undoubtedly proves that such was the rule in Eng- land. His contention is sustained by the rule in Maryland. It was there held that the office of an inspector of election is, under the law of Maryland, in its nature judicial; and accord- ingly such an officer cannot be held legally responsible for any- thing more than an honest and faithful exercise of his judgment, and is not liable for the consequences of mistakes honestly made, though he is responsible when actuated by malice.^ Justice Dwight refers to the character of the proof under which malice may be shown. He says : " It seems plain that as the existence of malice is a fact, it may be proved by the ordinary evidence sufficient to establish facts of this kind. Direct proof would be unnecessary. The existence of a bad intent may be inferred from circumstances," and quotes from other cases decided by the Maryland court in support of his position.^ We have re- ferred to what was said by the New York court of appeals with respect to this precise question. {Aj>ffar v. ITcn/ward et al., 110 N. T. 325.) That was an action for damages against the commissioners. It is true the court held that such commis- sioners had jurisdiction, and were not liable on that gi-ound; but they state : " In dealing with the question brought before them, they exercised a judicial function; and if in error, no action lies against them, unless that error was ^perpetrated raa- liciously.''' Sec. 910. Election officers. — It has been asserted that an exception to the general rule has been recognized in cases of election officers, such as boards of canvassers. This perhaps is not exactly correct, except in a few of the states. It may be true that they, more often than other officers or boards, have been held liable for their official acts, but this proceeds from two causes : the one the character of their duties, bringing them in direct contact with a large number of persons, and deter- minino- their rights in a matter of the greatest concern; and the other, the diversity of opinion with respect to the charac- iBevardv. Hoffman, 18 Md. 479. « Friend v. Hamill, 84 Md. 298; Elben v. Wilson, 33 Md. 135. 1108 JTTDICIAX POWEES. [§ 910. ter of their duties in another respect, whether judicial or min- isterial. If any cases exist they are very rare which hold that, if the duty exercised or attempted was judicial, personal lia- bility attached for the manner of its performance. It may be said, however, that the rule is relaxed in cases of malice. "Whether the duties of such a board, or officers, with respect to the registration of voters, as well as in the reception or re- jection of votes, are judicial or ministerial, is a question as to Avhich there is conflict of judicial opinion. I do not under- stand that the supreme court of the United States determined it in the case of Mwrplnj v. Ramsay, 114 U. S. 15. There the board of commissioners appointed under a special act of con- gress, and the members of the board of registration appointed by such board, were made defendants in a civil action for dam- ages, brought on the ground of illegally and maliciously refus- ing to the plaintiffs the right of registry. It seems that a particular oath was required having special reference to polyg- amists. A demurrer was sustained as to the board of commis- sioners, upon the ground that they had no authority to prescribe conditions to be followed by the board of registry, and, not participating in the wrongful act alleged, were not liable for the acts of the latter board. With respect to the members of the board of registry it was said that their cases stood upon a different principle. If they were merely ministerial officers, and if they have deprived the respective plaintiffs of their right to be registered as voters, in violation of law, they may ^ be re- sponsible in damages. The court stops here and proceeds to discuss the question whether the plaintiffs have by their plead- ing affirmatively shown the right claimed. The concluding part of the opinion relates to the duties of such officers, and quite clearly such duties are of a judicial character. Thus it is said : " The existing laws of the United States and of the territory, under which the election officers are bound to per- form their duties, must include the abt itself, which provides for their appointment and defines their duties ; and if they have not the right to exact an oath different from that, the form of which is given in the territorial act, they must otherwise satisfy themselves that persons offering to register are free from the disqualifications defined in the act of congress." This § 910.] LIABILITY OF JUDGES AND OFFICEES. 1109^ necessarily involves the exercise of judgment and discretion of a very high order, and evidently the duties of such board ex- tended to and included the consideration of evidence. If the court had directly answered the question proposed it would have been of great value upon another proposition. They pro- ceed to state: "In doing so (that is, satisfying themselves with respect to the voter being free from disqualification) they are of course required to exercise diligence and good faith in their inquiries, and are responsible in damages for rejections made without reasonable cause, or maliciously." The statement, " without reasonable cause," would indicate that their duties were considered ministerial, because, if judicial, their discretion to this extent was not subject to review. The statement with respect to " malice " might indicate that their duties were either judicial or ministerial, and, it the former, then this court would be in line with those courts which seem to hold that the ma- licious or corrupt motives of inferior tribunals are grounds of civil liability. Note. — It oftentimes seems that the courts are overnice in affirming that an act is judicial upon the sole ground that in some particular the officer is called upon to exercise his judgnient. There is evidently too much of hair-splitting process, as we have had occasion to remark several times. There is connected with the execution of all ministerial acts the exercise of some degree of judgment. To say that the remedy against an election offi- cer, or a member of a board of equalization, or an assessor, is impeachment, borders on the absurd; it certainly belittles that remedy, and, as eveiybody knows, it is absolutely impracticable. It lias been sought to apply the test so frequently asserted to the mere matter of inspection; and the question assumed such importance that not only the judgment of the court , of ap- peals of New York was invoked to determine the character of such an act, but also that of the supreme court of the United States. Thus, a statute of the United States provided that a postmaster was to charge letter postage upon a newspaper passing through the mails, by or upon which information should be communicated in writing, by marks or signs. The postmaster, having decided that an initial upon a newspaper did communicate such information, refused to deliver the paper unless the postage was paid. An action of trover was brought against him. The court of appeals held that his decision was reviewable by a jury, and that, as they found that the initial did not communicate information, he was liable. That, although the postmaster had in one sense to exercise judgment, yet as the act was not judicial in its nature in such a sense as to make his decision final, and hav- ing assumed to decide, he acted at his peril. The supreme court of the United States did not consider the act judicial, and stated that the nature of the 1110 JUDICIAL POWEES. [§ 910. act must be determined at all times by the law under whiob an officer is called upon to act and by the character of the act. Teall v. Fulton, 12 How. 284. The question was before the same court whether a public oflBcer was liable in damages to a party injured for his honest mistake of judgment in the performance of his of&cial duties. It seems that the doctrine was urged that as to duties which were not judicial he was responsible for the manner in which they were performed. The question had its origin in the act of the postmaster-general in settling an account with a contractor, in refusing certain credits or changing the account as determined by his pred- ecessor. The court at the outset determined tliat the acts complained of were not what the law terms ministerial, but were official acts done by the .defendant in his character of postmaster-general. They state: "We are not aware of any case in England or in this country in which it has been held that a public ofiScer, acting to the best of his judgment and from a sense of duty in a matter of account with an individual, has been held liable to an action for an error of judgment. . . . But a public ofScer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion; even although an individual may suffer by his mistake." Kendall v. Stokes, 3 How. 87. I do not understand that the New York court of appeals in GoetcTieibs v. Mathewson, 61 JS". Y. 420, determined the ques- tion. It was simply there declared in the majority opinion that "it may be conceded that such officers act in a quasi- j udicial character in putting questions and determining the effect of answers, etc., but their jurisdiction and authority are limited to an inquiry in reference to his place of residence and qualifi- cations as an elector," etc. A determination of the question was evaded. Justice Dwight in a separate opinion expresses that to his mind the inspectors in asking the questions pre- scribed by statute act in a mere ministerial capacity See People V. Pease, 27 JST. Y. 45 (a quo warranto proceeding). It was said that "the only judicial discretion vested in such officers is to determine whether any question put to the persons oifer- ing to vote has or has not been fully answered. . . . Their duties, except in the single instance adverted to, are simply ministerial in the reception of votes, and entirely so in count- ing and making the returns thereof." The supreme court of "Wisconsin is among those courts which hold that the duties of inspectors of election are wholly ministerial.' The supreme court of Massachusetts hold that the selectmen are liable civ- 1 Gillespie v. Palmer et al., 20 Wis. 544 § 910.] LIABILITY OF JUDGES AND OFFIOEES. 1111 illy for rejecting the vote of a qualified elector; but such de- cisions do not appear to be placed upon the ground that their duties in respect to receiving or rejecting votes are ministerial, but on the ground, in the earlier cases decided before the enactment of the statute relating to such subject, that the party thus deprived of a valuable right has no other remedy, and liability should rest somewhere for the wrong and to pre- vent frequent repetition.^ Note.— This court clearly expresses the reasons which seem at least to have been instrumental in inducing courts to forego the application of the general rule to election officers. Thus it is said: "The right of voting in such a government as ours is a valuable right; it is secured by the consti- tution; it cannot be infringed without producing an injury to the party; and although the injury is not of a nature to be effectually repaired by a pecuniary compensation, yet there is no other indemnity that can be had. In such a case, as in the case of an injury to the reputation and sometimes to the feelings, the good of society and security against a repetition of the wrong require that the suffering party should be permitted to resort to this mode of relief. The selectmen of a town cannot be proceeded against criminally for depriving a citizen of his vote, unless their conduct is the effect of corruption or some wicked or base motive. If, then, a civil action does not lie against them, the party is deprived of his franchise, without any relief, and has no way of establishing his right to any future suffrage. Thus a man may be prevented for his life from exercising a constitutional privilege by the incapacity or inattention of those who are appointed to regulate elections. The decision of the selectmen is necessarily final and conclusive as to the existing election. No means are known by which the rejected vote may be counted by any other tribunal, so as to have its in- fluence upon the election, or at least no practice of that kind has ever been adopted in this state. There is, therefore, not only an injury to the individ- ual, but to the whole community; the theory of our government requiring that each elective officer shall be appointed by the majority of all the votes of all the qualified citizens who choose to exercise their privilege. Now, if a party duly qualified is unjustly prevented from voting, and yet can maintain no action for so iipiportant an injury, unless he is able to prove an ill design in those who obstruct him, he is entirely shut out from a judicial investigation of his right; and succeeding.injuries may be founded on one originally committed by mistake. He may thus be perpetually excluded from the common privilege of citizens, without any lawful means of assert- ing his rights and restoring himself to the rank of an active citizen. Such a doctrine would be inconsistent with the principles and provisions of our free constitution, and must give way to the necessity of maintaining the people in their rights secured to them by the form of their government." With respect to the damages in such cases and the duties of jurors, it w^as 1 Lincoln v. Hapgood, 11 Mass. 350. 1]12 JUDICIAL POWERS. [§ 910. said: "But notwithstanding we deem it necessary that this action should be supported as the only mode of ascertaining and enforcing a right which has been disputed, we do not think it ought to be a source of speculation to those who may be ready to take advantage of any injury and turn it to their profit, to the vexation and distress of men who have unfortunately been obliged to decide on a question sometimes intricate and complicated, but who have discovered no disijosition to abuse their power for private purposes; and we therefore think that juries should always, in estimating the damages, have regard to the disposition and temper of mind discover- able in the act complained of; and probably the court could determine that a sum, comparatively not large, would be excessive damages in a case where no fault but ignorance or mistake was imputable to the selectmen. On the other hand, in oases in which it should be apparant that there was a wilful deviation from duty, and a wanton rejection of a vote from party motives or from personal hostility to the citizen whose vote is refused, or even a negligent or inattentive examination of his claim, exemplary damages would be required as a compensation to the injured party, and an expiation of the high and aggravated ofifense against the civil and political privileges of the citizen.'' That court referred to the quest;ion in Blanchard v. Stewrns et al., 5 Met. 300, and seem to recognize that the functions of such officers are to some extent judicial. They admit that the rule as it existed at that time was, in England and most of the states, to the effect that such officers were not liable when they acted in good faith without malice. The same was stated by the supreme court of Maine {Sanders v. Getohell, 76 Me. 158), in substance, viz. : " The rule in England and in most of the states of this country has long been that returning officers and inspectors of elections who are required to pass upon the qual- ifications of voters possess judicial functions in so doing, and are not liable to damages for rejecting a vote, unless the rejec- tion be malicious or wilful as well as wrongful. English judi- cial opinion at first inclined the other way, but, after memo- rable contests over the question, such came to be the settled law of that country. Almost all the courts in this country have acted upon the same rule." This rule which was recog- nized in Maine was changed by statute, which provides that " in no case shall any officer of a city, town or plantation incur any punishment or penalty, or be liable in damages, by reason of his official acts or neglects, unless they are unreasonable, corrupt or wilfully oppressive." ^ The courts of Maryland^ 1 See Donahue v. Eichards, 38 Me. 376. ^Bevard v. Hoffman, 18 Md. 479. § 910.] LIABILITY OF JUDGES AND OFFICERS. 1113 and Ehode Island ^ hold that the duties of such officers are ju- dicial, and apparently make no distinction with respect to their liability from cases where other oflBcers exercise similar pow- ers. In Iowa it would seem that the court holds such officers absolutely liable ; but the ground upon which such liability is made to depend does not appear in the case cited.^ The su- preme court of Ohio seems to have been impressed with the reasoning of the Massachusetts court, and, like that court, did not deem it material to determine the question of the character of the duties of such officers, whether judicial or ministerial.' The question has been regulated by statute in many states, and generally prescribes a middle ground between the two ex- tremes, and to the efifect that such officers are liable where their conduct is wilful, in some cases unreasonable; the statute of New York making the act criminal and prescribing a penalty.* From a review of the authorities Ave conclude that the great weight of authority is to the effect that the duties of such offi- cers in the respect referred to are quasi-judicial. That quite generally they are exempt from liability for such judicial acts where there is not present a wilful or corrupt motive. That the general rule which applies to judicial acts is quite gener- ally modified in its application to election officers, to the extent that they cannot claim immunity where their judicial acts are actuated by malicious or corrupt motives, and that this result flows from considerations of public policy and the respect for the almost sacred right of franchise. In some jurisdictions the judicial character of the act does not protect against liability where there is an honest mistake of judgment. In others, neither malice nor corruption will constitute an exception to the rule; while in still others, the act there being considered minis- terial, the officer is without protection. In the federal supreme court and the New York court of appeals, the officers were acting without or in excess of their jurisdiction. In the latter state and in Wisconsin, while the officers may interrogate the voter within the prescribed limits, they cannot reject his vote if he take the oath. Thus, in Goetoheus v. Mathewson, the facts were that the iKeenan v. Cook, 12 R. I. 53. 3 Jeffries v. Akeny, 11 Ohio, 373; 2 Long V. Long, 57 Iowa, 497. Anderson v. Millikin, 9 Oliio St. 508. iPeoplev. Boas, 93N. Y. 560. llli JUDICIAL POWEES. [§ 910. plaintiff was challenged when he offered to vote, on the ground of being disfranchised as a deserter; and, having taken the pre- liminary oath, was asked by the chairman of the board of in- spectors if he had been in the military service of the United States ; his answer was that he had. He was then asked if he had an honorable discharge therefrom; he refused to answer that question ; and being further asked if he left the service without leave, he also refused to answer that question. On such refusal the majority of the board — the challenge not being withdrawn — rejected his vote, although he persisted in his right to vote and take the general oath. It was held that in this the board acted without authority and beyond their juris- diction, and the rejection of his vote made them liable to him for damages resulting therefrom. It was said : " The inspectors of election have the right to ask a person who offers his vote, when challenged, on questioning him on the matters specially designated, such other questions as may tend to test his qualifi- cations as a resident of the town or ward, citizenship, and right to vote at the poll where he is challenged ; and it may be con- ceded that they act in a quasi-jxidicial character in putting such other questions and in determining whether he fully answers the questions which shall be put to him ; but their jurisdiction and authority are limited to an inquiry in reference to his place of residence and qualifications as an elector within the above- mentioned requirements and provisions of the constitution." Speaking with reference to the act of congress (ch. 79, Laws of 1885), it was further said : " The provision, assuming it to be valid, could only apply to deserters duly convicted as such by a court of competent jurisdiction; and there was no proof offered or allegation made of such conviction. The challenge of the plaintiff's right to vote on the ground of desertion with- out the production of the record of his conviction of the of- fense Avas consequently no more than a mere charge of its commission. It should have been disregarded, and did not jus- tify the questions which he refused to answer." Attention has heretofore been directed to what was stated by the supreme court of the United States in Murphy v. Ramsmj, 114 U. S. 15, in reference to the character of the acts of boards of registra- tion in making up the list, whether such acts were judicial or / I § 910.] LIABILITY OF JUDGES AND OFFICEES. 1115 ministerial. It is quite evident, however, that the duties of such oflacers in determining what persons are qualified electors, where the fact is made to depend upon evidence, are judicial where such officers wrongfully refuse to place the name of such a duly-qualified elector upon the list, or wrongfully erase the name of one such from the list. It is the law in some ju- risdictions that they are personally liable in a civil action. The mere fact of the judicial character of the act affords to them no protection.^ It seems that in such case the remedy of the injured person is an action against such officers, and that an action against the selectmen for not receiving his vote, if duly offered, will not lie. They can only, except as otherwise provided, be governed by the registry as it appears at the time.^ With respect to the question of malice or bad faith on the part of such officers, the writer assumes that the rule as to its effect upon their liability is the same in the several jurisdictions as it is respecting the liability of election officers in receiving or rejecting votes ; and, as we have seen, the rule is not the same in all jurisdictions. The duties of boards of canvassers have been discussed in the chapter on mandamus relating to the duties of public officers, and the conclusion reached that they are mainly ministerial. It necessarily follows, in the absence of some plain reason de- manding an exception to the rule in the case of such officers, that they are liable in a civil action where they wrongfully refuse to canvass the vote of a duly-qualified elector. Manda- mus will lie in any event. It has been so expressly deter- mined.' Also that the fact that the officers intended no wrong, but acted under the mistal^en belief that they were thus acting in the proper performance of duty, constituted no defense.* In Iowa, however, the supreme court expressed a doubt whether an action would lie against such officers for the non-perform- ance of such duties.^ 1 Lamed v. Wheeler, 140 Mass. ' McGowan v. Sedley, 8 Ir. Ch. Eep. 390. See also Perry v. Eeynolds, 53 343; Thomas v. Hinckle, 35 Ark. 450. Conn. 527; Pike v. Magoun, 44 Mo. < Thomas v. Hinckle, 35 Ark. 450; 491. Moore v. Kessler, 59 Ind. 152. 2 Lamed v. Wheeler, 140 Mass. 6 Jayne v. Drorbaugh,63 Iowa, 711. 390; Harris v. Whitcomb, 4 Gray, 438. INDEX. Eeferenoes are to sections, ACCIDENT— 1 as ground for relief in equity against judgments, 143-151. ADEQUATE EEMEDY (see Certiorari, 410 et seq.; Mandamus, 563-577 et seq., 795; Prohibition, 466 et seq.)— what tfie term includes, 580. does not supersede mandamus where purpose is to set inferior courts in motion, 593-600. no objection to suit in equity to set aside judgment on ground of fraud, 158. remedy to supersede mandamus, certiorari and prohibition must be a legal remedy, 578. by legal remedy is meant a remedy at law, 579. that remedy may be had in chancery not conclusive against such writs, 579. the remedy must be competent to afford relief upon the very subject, action for damages, ordinarily not, 581, 601, 661, 664, 855. replevin is not a proper remedy to recover bonds or papers deposited with a public officer, 581. mandamus is the only safe process, 581. remedy by appeal or writ of error ordinarily precludes mandamus, 578-583. right of appeal precludes mandamus against board of school directors, 583, n. writ will issue to compel them to carry out vote of electors, though appeal lies, 583. remedies in contempt proceedings, 3086, 418, 414. legal remedy must be prompt, otherwise not adequate, 588. rule as applied to private corporations, 797. rule as applied to railroad corporations, 814, 830. ordinary remedies at law generally adequate in cases of internal af- fairs of purely private corporations, 853. hence mandamus will not lie, 853. suit for damages not, when such a corporation refuses inspection of books, 853. mandamus the only remedy to compel payment of fund raised to pay bonds, 753. other remedies ample for enforcement of contracts, 773. payment of bonds, other remedies existing, 746. payment of warrants, other remedies existing, 655 et seq. quo warranto is an adequate remedy to determine the right between two factions in a private, corporation, 535. certiorari does not issue where thei'e is any other adequate remedy, 410. not applicable in matters of public concern, 559. remedy by appeal must be adequate and prompt to supersede writ, 411. rule in Idaho, Nevada and other states, 413. in California appeal supersedes writ from justice court in all cases, 413. 1118 INDEX. Eeferences are to sections. ADEQUATE REMEDY (continued) — remedy by appeal applies more particularly after judgment in courts of record, 414, 427. where there is no other remedy certiorari will issue, 426. certiorari and appeal concurrent remedies in some respects, 437. right of appeal does not generally supersede writ, where jurisdiction is wanting, 437. equity will not interfere with proceedings of inferior boards, etc., un- less proceeding to be annulled is valid upon its face, 438. prohibition will not issue where there is another adequate remedy, 447-456. such writ does not take the place of a writ of error or other method of review, 447—456. nor where certiorari is equally available, 468. remedy to be adequate must be reasonably prompt, 471. AFFIDAVITS — for order of publication, requisites of, 34 et seq. for attachment; defective, court without jurisdiction, 55, 234. may be amended in Wisconsin, 55. for garnishment; defective, court without jurisdiction, 55. may be amended in Wisconsin, 55. in replevin; if defective, court without jurisdiction, 55. for change of venue ; if defective, court not deprived of jurisdiction, 56 ALIENS (see Eligibility)— can neither vote nor hold office, 514. persons who have declared their intentions, 515. disability; removed before commencement of term, 515. presumed to be eligible until the contrary appears, 515. in California, may hold legislative office, 515. distinction between rights of citizenship conferred by state and citi- zen of the United States, 95, 515, note. is a de facto officer, 516. when a citizen, or possessing rights of such under naturalization laws, 516. note. naturalization of aliens; conferring power on state courts, 95. ALIMONY — defined, 371. distinction between alimony and division of estates under statists, 373. effect of decree upon dower, 373. it does not bar right where court did not have jurisdiction over the wife, 373. may be jjermanent or temporary, 374. jurisdiction to award, acquired only by personal service or appear- ance, 375. non-resident, not served, may in time commence proceedings for di- vorce and alimony, 376. is only incident to a suit for divorce, 377. in some courts the doctrine is otherwise, 379. court has a continuing power of review, 378. cannot allow, where decree is final, 379. a decree of division of property, final, 379. the allowance of a gross sum is alimony, unless expressed to be a di- vision of estate, 379. non-payment of alimony is a civil contempt, 804s. it does not constitute in some jurisdictions, nor in some cases, 304r. distinction where judgment is for one gross sum and where payable in instalments, 304)\ inability to pay; commitment void where it appears, 304s. where such inability is v.-ilfully occasioned with intent to avoid pay- ment, party may be committed, 304s. INDEX. 111& Eeferences are to sections. ALIMONY (continued) — appeal lies from order of commitment, 304s. court cannot compel party to seek employment to earn money, 304s. defendant may be discharged upon habeas corpus, 304s. AMENDMENT — no jurisdiction where defective proceedings cannot be perfected by amendment, 7. none where new oaiise of action is stated, in absence of new service, 11. affidavits in attaohmeiit and garnishment may be amended in Wis- consin so as to confer jurisdiction, 55. amending return; sale of land for taxes, 674. amending indictments or informations, 324 APPEAL — consent cannot confer jurisdiction of subject-matter, 50. nor to pass upon question not involved, 50. nor jurisdiction to try a case de novo, where statute provides forbear- ing upon original papers, 51. inferior court without jurisdiction of subject-matter, appellate court cajpinot gain it, 51. where amount in controversy is in excess of jurisdiction of inferior court, the appellate court cannot acquire, 51. where jurisdiction depends upon statutory conditions, consent cannot dispense with tliem, 53. appeal must be taken and perfected within the time and in the man- ner provided by law, 53. the time cannot be enlarged by consent, 53. notice must be served; cannot be waived, 53. parties may stipulate that it was filed, 53. jurat to affidavit for, from justice's court, must be signed by officer, 53. effect of failure to file bond, 52. right of appeal existing; its effect upon allowance of certiorari, 411, 413, 414. its effect upon issue of habeas corpus, 308. remedy by appeal and certiorari concurrent in certain cases, 437. remedy by appeal ordinarily precludes mandamus, 583. see Mandamus; Adequate Remedy, 577 et seq. contempts, appeal does not lie in criminal, 303, 308c, 413. lies in civil contempts, 303, 308c, 413. appeal dismissed for supposed want of jurisdiction, mandamus lies to reinstate, 598, 604 with respect to appeals in benevolent and other societies, see Manda- mus, 873 et seq. APPEARANCE (see Attachment; Consent; Waiveb) — voluntary, gives jurisdiction of the person, 48. not of the subject-matter, 49. not upon appeal where right of appeal depends upon statutory pre- cedent conditions, 53. not sufficient to confer jurisdiction over the res in proceedings in rem, 55, 130. , . , ^ . ^ sufficient to confer jurisdiction to render personal judgment m at- tachment proceedings, 55. but not against the property, 55. . t same doctrine prevails with respect to proceedings to enforce hen upon logs, 55. and for labor on granite, 55. in Illinois want of jurisdiction is waived by going to trial, 55. APPOINTMENT OF OFFICERS (see Mandamus; Office and Officer). ASSESSMENTS (see Taxes). 1120 INDEX. Eeferenoes are to sections. ASSESSORS — act judicially in assessing property, 432a. see Mandamus; Certiokaei; Liability op Judicial Officers. ASSIGNEES AND VENDEES — are generally privies in estate, 250. a judgment against an assignee is binding upon the creditor, 250. such a judgment may be impeached for fraud or collusion, 350. see Impeachment of Judgments by Strangers. ATTACHMENT — appearance gives jurisdiction to render a personal judgment, but not one against the property, 55. in Illinois defect waived by going to trial upon the merits, 55. in Wisconsin affidavit may be amended, 55. the proceeding is merely auxiliary, 130. not strictly a proceeding in rem, 320. only conclusive upon parties and privies, 330. seizure of the property, either actual or constructive, essential to jurisdiction, 55, 320. personal service or appearance not essential, 220. without personal service, no jurisdiction to render a personal judg- ment, 55, 220. in federal court, affidavit has served its purpose when writ is issued, 220. if the de'endant appears, the cause becomes mainly a suit in per- sonam with the added incident that the attached property is liable, 231. if no personal service or no appearance the proceeding is in rem, 231. no execution can issue, not even for costs, after the attached prop- erty is exhausted, 331. court cannot proceed unless the officer finds some property upon which to levy the writ, 331. substituted service, effect of, 233. ■ rule recognized by the Wisconsin court, 333. failure to publish notice when rejiuired, 323. in the federal court such "failure is not jurisdictional, 333. contrary rule prevails in most of the state courts, 234. the affidavit must contain the essential averments required by stat- ute, 224. . effect of proceedings upon the propei-ty, 225. operates only on the interest of the defendant. 225. officer obtains a special interest and may maintain trover or tres- pass, 225. sold as perishable, conclusive upon all the world, 225. the lien is transferred to the purchase-money, 235. the writ protects the officer, 335. ATTORNEYS — Privileged communications — communications between client and attorney are privileged, 806gf. the relation of client and attorney must actually exist, 306ft. character of commilnications within the privilege, 3067i. retainer not essential, S067i. when made to one not an attorney in fact, 306ft. communications made to a prosecuting attorney for the purpose of criminal proceedings, 306ft. the communication itself must be confidential, 306ft. communication made in presence of both parties, 306ft. where sevei-al persons on one side, communications made in presence of each other privileged in suits with third persons, 806ft. several parties, with interests diverse, uniting in submitting question to attorney, 306ft. INDEX. 1121 References are to sections. ATTORNEYS (continued) — Privileged communications (continued) — the witness must liave learned the matter only as counsel, SO&h. rule where communication is made to third party for pm-pose of em- ployment of attorney, 306i^. communications from merely nominal party, 'SOSh. rule applies to civil as well as criminal cases, 3067i. rule applies to all who represent the attorney, clerks, interpreters, agent or assistant, 306/j. rule applies to communications between a party, his legal adviser and his witnesses, 306/i.. communications not within the scope of lawyer's duty and profession, 306;i. special instances given, 306h. Waiver of privilege — privilege not personal to the attorney, but solely to the client, 306i. the attorney under no circumstances can waive it, 306*. the court cannot compel disclosure, 306i. the client may waive the privilege, 306i. in such cases the attorney may be compelled to testify, 306i. the mere fact that the client goes upon the stand and testifies does not operate as a waiver, 306i. client cannot be compelled to disclose upon cross-examination, 306i. client calling upon attorney to. testify with respect thereto removes the seal of secrecy, 806i. the same when client voluntary testifies with respect to them, 306i. rule in Massachusetts, 306i. whether waived by not claiming when opportunity offers, 306i communications for an unlawful purpose, 308i. rule in respect to testamentary matters, 306i. Documents — rule extends to, 306/. attorney cannot be compelled to produce books and papers intrusted to him by client, 306/. or testify to their contents, 306/ rule applies where documents required to be produced before grand jury or magistrate for purpose of criminal prosecution, 306/ documents not relating to the particular suit, 306/ correspondence between attorney and client are privileged, 306A;. exception in case of fraud bj^ some courts, 306fc. action by attorney against his client for fees; rule, 306fc. where papers pass out of attorney's into third person's possession, 306fc. rule where suit against both client and attorney, 306fc. Duties and responsibilities of attor7ieys — an officer of the court, 306r. must demean himself at all times properly before the court, 306r. subject to account to the court with respect to his dealings with his client, 306r-. power of the court, 306r. may not wilfully criticise or libel the court or judges, 306r. payment of money unlawfully withheld from his client will be en- forced, 306r. inability to pay, effect, 306n may be compelled to deliver client's papers at the instance of client, 306r. disobedience of any lawful order is contempt, 306?'. the power to punish for contempt is inherent in the court independ- ent of any statute, 301. 806r. rule with respect to attorney's lien, 306r. acts of official or personal dishonesty or oppression subject the attor- ney to the summary jurisdiction of the court, 306r. 71 1122 INDEX. References are to sections. ATTORNEYS (continued) — Duties and responsibilities of attorneys (continued) — acts of misbehavior in office stated, 306r. contempt may consist in manner of speech, 391. also in the use of disrespectful language, 293. also manner and substance of pleading, 292. attorneys hold their office during good behavior, 304 can be 'disbarred for misconduct only ascertained and declared by judgment of a ooiurt after opportunity to be heard, 304. admission of, 624 suspension and disbarment, 53.5 et seq., 609. judgment of suspension or disbarment not within jurisdiction of court in contempt proceedings, 391. mandamus the proper remedy to restore to office an attorney unlaw- fully disbarred, 291. district attorney; duties largely discretionary, 671. not controlled in mandamus proceedings, 671. mandaijius will not lie to compel admission of, where court exercises a disoi-etion, 634 nor to restore where suspended or disbarred, where discretion exer- cised. 635. unless in clear case of abuse, 635. court without jurisdiction, writ will lie, 636. attorney entitled to notice of disbarment proceedings; mandamus lies to compel appointment pt attorney to defend a person non compos, 637. AUDITING OFFICERS AND BOARDS — board of audit in examination of claims acts judi(!ially, 483a. ministerial acts will be compelled, 654. not those involving discretion, 654 action upon a claim may be, G54 thus, discretion will not be controlled in passing upon it, 654. where the amount is fixed by law they have no discretion, 654. if audited at less, may be compelled to audit at proper sum, 654, where the law fixes salary and a board may have fixed a different compensation, 654. AWARDS — mandamus lies to compel issue of warrant for, 656. to compel payment of, 658 et seq. to compel levy of taxes to pay, 757. judgment of commissioners not controlled or revised, 776. right of action does not preclude mandamus where there is refusal to pay, 601. postmaster-general compelled to pay, 648. B. BAIL (see Habeas Corpus) — admitting prisoner to, 357. discretion of com-t in capital cases, 357a. extrinsic evidence, 3576. circumstances extraordinary which may create an exception to the rule, 857c. where there has been a trial and disagreement, 357d where confinement will endanger life, 357e. rule where application is made before indictment, 357/. rule where there has been a conviction for felony pending appeal, 357g. excessive bail, 357/i. reduction of bail, 'd~)7i. right of appeal from order, 357/ INDEX. 1123 References are to sections. BAIL BONDS — ■ sureties are concluded by the judgment against the principal, 346. BAILEES — are in general bound by judgments against their bailor, 251. bailor not bound by judgment against bailee, 351. BENEFIT SOCIETIES (see Private Corporations; Mandamus). BILL OF EXCEPTIONS (see Mandamus, 613 etseq.) — mandamus proper remedy to enforce signing and settlement of, where judge improperly refuses, 613. proper practice in such a case, 613. the mere act of signing is ministerial and may be compelled, 613. the discretion of the judge in determining what are the facts cannot be controlled, 613. upon return of the alternative writ the judge may declare cause of refusal, 615. if the proposed bill is incorrect, must state defect, 615. judge may be compelled to insert all the evidence, 615. questions of mistake, surprise or excusable neglect in not seasonably presenting biil to judge, considered by him, will not be considered on appeal, 615. writ lies to referees where duty imposed, 616. bills of exceptions in chancery courts, 617. alteration of bill by judge; he has no power after it is signed and filed, 618. is his individual act if done and of no force. 618. laches in making application; question discussed, 619. time extended; there can be no laches within that time, 619. if judge absent from the state when time expires, party has a reason- able time after his return, 619. stipulation extending time cannot affect discretion of judge, 619. signing after expiration of time, 620. rule in some states that retiring judge shall sign, 630. in others, his successor, 620. whether maiidamus will lie to the retiring judge, qucere, 630. it lies in Wisconsin by statute, 630. BILLS OF BEVIEW-- must be filed in the court where records are and decree pronounced, 81. BOARDS OF CANVASSERS (see Mandamus; Quo Warranto) — duties of, 691. how far subject to control by mandamus, 691. duty of ascertaining number of Votes, 693. may be compelled to reconvene and canvass according to law, b9J, ftQft mandamus will be refused where election not authorized or held at proper time, 693. duty with respect to defective ballots, 695, 696. where ballots contain initial Christian name, 695, 696. though certificate awarded to another, 697, 774. duties that are judicial, 699. , , ^. -, j. „„-i- .?17 duties in canvassing vote on question of location ot county seat, ni. mandamMS will not lie until default, 700. • board cannot determine question of eligibility, 701. liability to civil action for damages, 910 et seq. BOARDS OF HEALTH — proceedings not subject to review by certiorari, i6ia. persons restrained by direction of, 378. facts subject to review upon habeas corpus, 378. 1124 INDEX. References are to sections. BOARDS OF REGISTRATION (see Mandamus; Liability of JuDiciiL Officers). BOARDS OF REVIEW — their proceedings are judicial, 433a. subject to review upon certiorari, 432a, 433. errors of law appearing upon the record will be reviewed, 4336. such boards cannot act arbitrarily in determining question of valua- tion, 4336. they must act upon the evidence, 4336. where they are clothed with a discretion not derived from evidence, then proper exercise of that discretion not subject to review, 4836. prohibition will lie, 455. see Peohibition, 455. BOARDS OF SUPERVISORS (see Municipal Corporations; Mandamus; Cketioraei; Liability of Judicial Officers) — act judicially in equalizing assessments, 433a. the same in passing upon petition for removal of county seat, 433a, 713. and generally in acting upon petitions, 433a. excess of their jurisdiction; liability, 909a. efEect of malice or fraud, 909a. BONDS — official; refusal to approve; effect on right to office, 513, 513. approval of, may be compelled, 670, 671. duty, gwosi-judicial, 670. writ will lie where discretion not involved, 671. writ will not lie where refusal is on the ground of insufficiency of sureties, 671. Municipal — amount of tax cannot be restricted after debt contracted, 738. mandamus lies to enforce payment by levy of tax, 747 et seq. where fund has been collected, 753. it is the exclusive remedy in such case, 753. mandamus lies to enforce subscription to capital stock of a corpora- tion and to issue bonds in payment, 753. character of agreement for subscription, 753. statute relating to, must be strictly pursued, 754. notice of election; where required, must be given the required time, 754. the petition or request for submission, or when a consent, must be filed, 754. writ denied where corporation has not fulfilled its agreement, 754. fraud in enacting ordinance ground for denial of writ, 755. payment of; when levy of tax therefor will be compelled, 746, 747. judgment essential in federal courts, 630, 747. not essential in state courts in ordinary cases, 748. state court may compel levy of tax to pay judgment of federal court, 746. if validity of bonds be disputed, the courts may oblige holder to re- sort to action, 749 et seq. writ not denied for irregularity in proceedings preliminary to issue of, 751. where work has been accepted and the duty is to deliver bonds, de- livery may be compelled, 656. Bail, appeal and replevin bonds — sureties are concluded by the judgment against the principal, 346. Receivers' bonds — are prima facie evidence against surety, 247. INDEX. 1125 References are to sections. BONDS (continued) — Bonds, in general — judgments against the principal are impeachable by the sureties for traud or collusion in procuring them in all cases, 248. failure of jurisdiction may always be shown, 249. Bonds of indemnity — judgments against principal stre prima facie evidence, 84. see Stjreties. some conflict whether sureties are privies or strangers, 239. difference of opinion with respect to effect of judgment against the principal upon surety, 239. what may be shown in defense, 240 et seq. distinction between an undertaking general in its terms and one where principal is to do a specific act to be determined in a given way, 243. in cases of the latter class sureties are bound, 343. Administrators' bonds — distinct in character from oiHcial bonds, 244. sureties are bound by judgment against principal, 243. this distinction not recognized in all jurisdictions, 244. where the condition is to be bound by the result of litigation, the judgment is conclusive, 344. mandamus proper remedy to recover bonds or papers deposited with public officer; replevin will not lie, 581. BOOKS AND PAPERS — Inspection of — mandamus proper remedy to compel, 855. suit for damages not an adequate remedy, 855. corporation may be compelled to submit for inspection, 853-855. not where purpose is that of idle curiosity, 856. court exercises a discretion in case of purely private corporation, 858. demand must be made at proper time and place, 857-859. clerk of court; compelled to permit, 669. register of conveyances so compelled, 677. public officers generally so compelled, 683. party cannot be compelled to deposit books ov papers with clerk for inspection by adverse party, 304d. Delivery of — m,andanvas proper remedy to compel, 679. by public officers, 679. by clerk of court, 6C6. corporate, at the instance of private corporation, 863. corporate bonds at instance of municipal corporation, from one who unlawfully holds them prior to issue, 786. Production of — mandamus proper remedy to compel, 785. corporate books, at instance of corporation, 785. BRIBERY — 3ERY — effect of, upon election, 519. what may constitute, 519. BRIDGES — construction and repair of, enforced by mandamus, 766. discretion not controlled, 766. restrictions upon amount of tax for such purpose; effect of, 766. county purchasing bridge; making it free of toll does not relieve it from duty of maintaining, 766. mandamus will not lie to restore bridge destroyed where vote of peo- ple required to provide fund, 766. 1126 INDEX. References are to sections. BEIDGES (continued) — county under a particular legislative act was compelled to levy tax to pay half of cost of bridge, 767. where bridge is over stream dividing two counties, writ may lie, 768. c. CABINET OFFICERS (see Officers). CANAL COMPANIES — public duties, enforcement of, 801-844. poverty as an excuse for not making repairs, 849. CANVASSERS OF ELECTIONS (see Board of Canvassers). CATTLE-GUARDS — duty of railroad company to maintain, enforced by mandamus, 816. CERTIFICATE OF DEATH — hospital corporation may be compelled to give, 851. CERTIFICATES OF ELECTION (see Board op Canvassers; Mandamus; Quo Warranto; Clerks op Court, 667). CERTIORARI — object and purpose of the writ, 409. brings up records of inferior tribunals for review, 409. distinction between common-law and statutory writs, 409. ordinary writ will not issue where there is another adequate remedv, 410. this rule apples more particularly when addressed to inferior courts, 410. appeal, right of as an adequate remedy, 411. such a remedy must be prompt and adequate, 411. subject illustrated, 412. contempt, judgment of; certiorari will lie though there may be right of appeal, 3086, 412-414. so will writ of habeas corpus issue, 308&. rule in Idaho, 413. rule in Nevada and generally in other states, 413. writ does not lie in California to a justice's court where there is right of appeal, 413. , distinction between courts of record and those not of record, 414. remedy by appeal applies more particularly after judgment, 414. where not a court of record, certiorari is a proper remedy, 414. courts of record proceeding out of the course of the common law, rule, 415. courts exercise a discretion in allowing writ, 415. writ not a substitute for appeal or writ of error, when addressed to courts, 416. Iowa statute, 417. writ operates to obtain a trial de novo in some states, by statute, 417a. statutes of several states: Alabama, 418. Mississippi, 419. Missouri, 420. Georgia, 421. Massachusetts, 423. Maine, 423. Vermont, 424. Michigan, 425. writ abolished in Kansas, Nebraska, and in certain cases in New York. 424. INDEX. 112T References are to sections. CERTIORARI (continued) — Connecticut; the writ has not been used, 424. where there is not another adequate remedy, general rule is that cer- tiorari will lie, 436. writ only reaches jurisdictional defects of courts not of record upon review of their judgments, 437. immaterial that there may also exist a right of appeal, 437. jurisdictional defects of superior courts cannot be reached by the writ after judgment, 437. where proceedings are special, writ may be allowed, 437. distinction between error and want of jurisdiction illustrated, 438, 429. tribunals not proceeding according to the course of the common law, 430. proceedings of, reviewable by certiorari, 430. judgments of inferior courts upon review; jurisdictional questions examined, 431. distinction between " inferior courts " and " inferior tribunals," 481. the term "not proceeding according to the course of the common law " defined, 432. bastardy proceedings, 433. vrrit only lies to review judicial acts, 433a. does not lie to review unlawful acts, 433a. distinction between judicial and ministerial acts, 433a. dividing and creating towns are legislative acts, 483a. assessors in assessing property act judicially, 432a. acts of city council in passing upon petition for reduction of taxes are judicial, 432a. board of supervisors in equalizing assessments act judicially, 432a. and the same in passing upon petition for removal of county seat, 483o. township trustees in calling an election to vote upon question of bonding town act judicially, 433a. boards of audit; the same, in examination of claims, 433a. public boards or officers in granting or refusing license, the same in most jurisdictions, 483a. and generally the same in acting upon petitions; also in determining elij,ibility of one of their number, 433a. and in removal of officers for cause, 433a. but in the appointment of officers their duties are executive, 483a. the proceedings of boards of health are not subject to review by cer- tiorari, 483a. proceedings of highway commissioners are thus subject to review, 433, 433a. tribunals other than courts exercising judicial power; rule, 438. errors of law and irregularities in their proceedings subject to review, 483. the matter must be determined from the record, 483. tax proceedings; review of, 433&. proceedings of public boards, 483c. direction of the writ, 433d. allowance of the writ, when discretionary, 484. rule of procedure in Massachusetts and Maine, 434a. rule of procedure in Wisconsin and Michigan, 4346. allowance of the writ not conclusive in the court, 434e. time within which the writ should be applied for, 4Sid. writ not allowed to review proceedings taken by a vote of electors, 435. nor to review the merits, 436. evidence not reviewed upon common-law writ, ' departures from this rule, 436&. rule in New York, 436c. rule in Michigan, 436d 1128 INDEX. References are to sections. CERTIORARI (continued) — rule in New Jersey, 4S6e. rule in Utah, 436/. rule in West Virginia, 436sf. remedy by appeal and certiorari concurrent in some cases, 437. void proceedings; when writ will lie, 438. at what stage of proceedings writ will lie, 439. rule stated by the New Jersey court, 439. rule stated by other courts, 439. rule with respect to justice courts, 440. rule with respect to tribunals other than courts, 441. rule with respect to municipal corporations, 442. writ when used as auxiliary to other proceedings, 443. when so used brings up record for inspection, 443. writ lies to review proceedings upon habeas corpus, 443. state entitled to writ when prisoner has been discharged, 443. Contempt proceedings — writ lies to review proceedings in criminal contempts, 444 not in civil contempts, 444. whether writ will lie when there has been a refusal to punish, courts not agreed, 444. questions subject to review, 444 extent of the inquiry, 444. who may apply for the writ, 444a. the return; effect of; hearing, 444b. the judgment, 444e. the judgment ; effect of statutes, 444d. the judgment; inferior court without jurisdiction, 444e. the judgment; dismissal of proceedings, 444/. the judgment ; power to affirm or reverse in whole or in part, 444g'. the judgment; conclusive effect of, 4Aih. costs; question of, 444i. regulated by statute in many states. 44Ai. review of tlie judgment of the court of review, 444^. whether right of appeal, discretionary, 444/. where court refuses to allow the writ, 444/. where writ dismissed, 444/. CHANGE OF VENUE — ordinarily mandamus will not lie to compel, 607, 608. mandamus will lie to compel judge interested to transmit the case to another court, 608. affidavit for, defective; jurisdiction not acquired though party ap- pears, 56. denial of right, 333. see Pbohibition, 476. CHARTERS (see Franchise). CHURCHES (see Religious Coerorations). CITIES (see Municipal Corporations). CLAIMS (see Mandamus) — auditing; duty judicial, see Auditing Officers. payment of; duty ordinarily ministerial, 560. right of action does not preclude mandamus, 660. mandamus will not lie to compel allowance of contingent, 583, nota CLERKS OF COURT — duties largely ministerial, 668. whether mandamus will lie to compel issue of execution on money judgment, qucere, 663. INDEX. 112^ References are to sections. CLERKS OF COURT (continued) — writ will lie to compel issue of execution upon other class of iudg- ments, 663. •' " action for damages against, may not be an adequate remedy, 664 mandamus lies to compel furnishing copies of record, recording. papers, furnishing transcript, 665. to compel delivery of books and papers, 666. issue certificates of election, 667. prohibiting recording of vote where election law is invalid, 668. to permit inspection of books and papers, 669. to approve bonds, 670. is an ofBcer of the court and must obey orders and directions of the court, 3O63. disobedience punishable as contempt, 300, 306g. fraudulent acts in line of duties, the same, 306g. failure to pay over money, the same, 306g;. neglect of duty, the same, 300. COLLATERAL ATTACK — definition of, 141. see Impeachment of Judgments, 136 et seq., 166 et seq. ; Divorce,. 360 et seq., 386; Impeachment op Judgments by Strangers, 233 et seq. ; Private Corporations, 533, 535, 537, 555 et seq. COMMISSIONERS OF IMMIGRATION (see Habeas Corpus, 879). COMMON COUNCIL (see Municipal Corporations). CONCURRENT JURISDICTION — general rule, court first obtaining jurisdiction retains it to the ex- clusion of another, 77. this jurisdiction extends to the execution of the judgment, 77. an action cannot be maintained in another court to set aside the judgment, 77. to have this effect, suit must be between the same parties or privies and involve the same matter, 77. rule does not apply, after suit is ended, as to rights of parties not bound by the judgment. 78. nor where action is brought against officers who seize the property upon attachment, 79. nor where the court is unable to grant full relief on account of its jurisdiction, 80. bills of review must be filed in the court where records and decree pronounced, 81. federal or state courts cannot enjoin proceedings in each other, 88. state ofiBcers may be enjoined from executing a law in conflict with federal constitution, 83. state court may issue habeas corpus where it does not appear pris- oner is detained by process out of the federal court, 83. person duly appointed to receive a fugitive from justice is an agent of the state, 84. prisoner thus in custody cannot be discharged by federal court oq ground of innocence, 84. where trial for an offense may be had in either one of two counties, rule, 85. receivers, actions by and against; rule; obtaining leave of court, 86. court appointing has exclusive jurisdiction of proceedings which may affect his full title or possession. 86. action for damages may be permitted without leave of court, 86. action in ejectment ma;y be so permitted in New York, 86. action to set aside foreclosure and sale not permitted, 86. receiver liable in an action for damages for selling property not au- thorized by decree, 87. 1130 INDEX. References are to sections. CONCURRENT JURISDICTION (continued) — national bank may be sued, though a receiver appointed, 87. mandamus will lie from state court to compel a recorder to cancel an inscription against property of a petitioner, though receiver has been appointed by federal court, 87. suit pending in a foreign jurisdiction does not operate as a bar to the commencement and prosecution of a suit in another, 88. parties, however, may be controlled and enjoined. 88. though the subject be beyond the jurisdiction of the court, 88. exemption of debtors; suits to evade in other jurisdictions, 89. courts may enjoin creditor from bringing', 89. may also enjoin a person from commencing suit in another jurisdic- tion where purpose is to avoid a decision of the particular state, 89. suit pending in two jurisdictions, proceedings in one may be stayed, federal courts ordinarily will refuse to entertain jurisdiction of a question of title when pending in a state court, 91. fraud; effect of. upon the general rule, 93. courts may relieve against a judgment procured by fraud, 93, 143, 155. may set aside sale of infants' estates, 98. also fraudulent sales by executor, 93. congress cannot confer judicial power on state courts, 93. state courts can exercise concurrent jurisdiction with federal courts, unless excluded, 93. when jurisdiction may be concurrent, 94. naturalization of aliens; conferring upon state courts, 95. such power is judicial, 95. state may confer rights of citizenship in the particular state, 95. but cannot confer right of citizenship of the United States, 95. state legislatures cannot restrict the jurisdiction of the federal courts, 96. nor interfere with the right of removal of causes, 96. nor prevent citizens of other states from bringing actions in the fed- eral courts, 96. nor provide for removal of causes to such courts, 96. nor regulate proceedings therein, 96. nor confer jurisdiction on federal courts, 96. nor affect the equity jurisdiction of the federal courts, 96. federal courts may enforce equitable remedies provided by state laws, 97. vessels, owners of; personal actions against ; concurrent jurisdiction of federal and state courts, 98. federal courts ; exclusive jurisdiction of, relates more particularly to proceedings in rem, 98. maritime contracts; jurisdiction concurrent, 98. insurance contracts, the same, 98. contracts to transport passengers, the same, 98. owner's interest in vessel may attach in state court, 99. for torts not .maritime, the admiralty court has no jurisdiction, 100. state courts may enforce liens against vessels by a proceeding in per- sonam with an attachment, 100. darnages caused to property on land by vessels, a subject of jurisdic- tion m state courts, 100. loss of goods by burning of vessel, a subject of admiralty jurisdiction, loss of goods occasioned by collision at sea, the same, 100. suits tn rem to enforce lien for wharfage, the same, 100. <'0]ltracts for building ships, supplying engines, etc., not maritime, nor wa,s there a maritime lien for repairs prior to change of twelfth admiralty rule, 100. INDEX. 1131 References are to sections. CONCURRENT JURISDICTION (contiiwed) — admiralty court without jurisdiction to decree sale of ship on unpaid mortgage, 100. concurrent jurisdiction of federal and state courts in criminal cases, 100 et seq. same act may constitute an offense against two sovereignties, 100 et seq. each jurisdiction may punish for an offense against its sovereignty, 101 et seq. embezzlement from national banks, 105 et seq. appeal and certiorari are concurrent remedies in certain cases, 437. CONSENT — effect upon jurisdiction, 49. cannot confer jurisdiction of the subject-matter, 49. appellate court without jurisdiction conferred cannot gain it by con- sent, 50. nor pass upon questions not involved in the issues, 50. subordinate court without jurisdiction, appellate court cannot gain, 51. nor acquire when amount in controversy is in excess of limitation of such subordinate court, 51. nor to try action de novo, where statute provides for hearing upon original papers, 51. nor where right of appeal depends upon compliance with statutory conditions, 52. time within which to perfect appeal cannot be enlarged by consent, 53. New York case, illustration of rule, 53. service of notice of appeal cannot be waived, 53. parties may stipulate that such notice was filed, 53. jurisdiction upon agreed state of facts, 54. parties cannot make experimental case, 54. stipulation not to appeal, when not binding, 54. see Waiver, 57 et seq. CONTEMPT — what are contempts, 288 el seq. pending cases; whether contemptuous remarks confined to, 390. may consist in manner of speech, 293. statements in the order made by the court upon appeal are conclu- sively presumed to be true, 291. disrespectful language, 393. common-law doctrine, 287. inherent power in the courts, 387-295. liberty of the press; bill of rights, 293. statutory limitations upon the power to punish, 394 et seq. distinction between inherent power and jurisdiction, 396. the doctrine having the weight of authority is that such right does not exist, 395. some courts to the contrary, 295, 296. contempts within the statute, 297. the statute relates to a change of the common law with respect to constructive contempts, 298. responsibility in publishing reports of a trial is not confined to pend- ing causes, 298. the Wisconsin court contra, 298. , . , , , publication at a distant point, whicli might be circulated m the court- room, same as a direct accusation in presence of court, 398. Civil contempts — enumerated, 399. 1132 INDEX. References are to sections. CONTEMPT (continued) — Character of proceedings — imposition of a iine is a judgment in a crimmal case, 300. it is no part of the process in the civil action, 300. it is a special proceeding, criminal in character, 300. the state is the real plaintiff or prosecutor, 300. rule in some states that proceeding should be entitled in the original action. 300. neglect of duty on part of ofScer of court is a contempt of court, 300. disobedience of valid order, the same, 300. court has power to compel production of books and discovery under oath, 300. attorneys misconduct of, a contempt independent of statute, 301. distinction between civil and criminal, 303. abduction of child by mother, 303. those enumerated as civil may also be criminal, 303. indemnity ordered, a civil contempt, 303. if criminal, no appeal lies, 302, 412-414, 446, note, if civil, the order is appealable, 303. fine and indemnity cannot be included in same order, 303. the judgment or final order, 303 et seq. fine or imprisonment is the penalty for misconduct, 803. where object is to enforce performance of duty, the penalty may be imprisonment until performed, 303. it must appear party has sustained a loss or injury, pecuniary in character, 803. ajso that party has it in his power to perform, 303. striking out pleading, cannot be ordered as a punishment, 304 denial of relief while in contempt, 304a. disobedience of order, 304b. Bebs case, government by injunction, 304c. inspection of books and papers, disobedience of order requiring, 304A party cannot be compelled to deposit books and papers with clerk for inspection by adverse party, 304d. disobedience of an order so requiring is not punishable as a con- tempt, 304d. the extent of the authority of the court is to compel their production as evidence upon the trial, 804d. order enjoining removal of officer, 304e. equity has no jurisdiction to restrain criminal proceedings, nor to restrain removal of officer, 804e. • disobedience of such an order not punishable as for a contempt, 304e. order enjoining attorney-general from bringing suits in name of state against delinquent taxpayers, 304e. disobedience not punishable as for contempt; the action being against the state, was prohibited by theconstitution, 304e. refusal to recognize a director duly declared by judgment of a court to have been elected, not punishable as for a contempt, an appeal having been taken; the appeal operated as a stay of proceed- ings, 304/. order enjoining federal officers; disobedience of an order by local land officer, restraining them from proceeding to sell certain lands, not punishable as a contempt, 'SOig. distinction between jurisdiction and judgment, 3047i. disobedience of writ of mandamus issued by a judge at chamben not punishable as a contempt, 304i. California doctrine exceptional; its courts will determine whethei act complained of was a contempt, 30 y. also that refusal by a telegraph operator to produce all telegrams bi tween certain parties was not contempt, 304/. the court only has jurisdiction to call for special messages, 304^'. INDEX. 1133 References are to sections. CONTEMPT (continued) — Character of proceedings (continued) — disobedience of ordex- enjoining one in possession of land from inter- fering with tile possession thereof, void, 304fc. court of equity by preliminary order cannot divest one of possession of realty, 304fc. nor a corporation of control of its affairs, except in proceedings to dissolve the corporation, 304fc. disobedience of injunctions improperly granted can only be excused on ground of order being absolutely void, 304i. if court has jurisdiction of party and subject-matter, order voidable merely, 304i. order more extensive in its restraints than prayer of complaint, not void, 304Z. if there is legal evidence sufficient to call for the exercise of judg- ment, order not void, 304Z. orders made in other than judicial proceeding, 304m. order of court on county to pay stenographer's fees, within its power, 304m. treasurer in contempt for dLsobedience, 304m. order for payment of witnesses' fees, in criminal cases, same, 304m. orders of court made in other than judicial proceedings enforcible by proceedings in contempt, 804m. those made by a judge by proceedings in mandamus, 304m. order of judge to pay expense of furnishing court room, of the latter class, 304m. interference by third party with order, 304?i. any person who interferes with the process, control or action of the court in a pending litigation unlawfully is guilty of civil contempt, 304m. civil contempts, so called, may be punished criminally, 304n. decree of specific performance; refusal to comply with, contempt, 304a , ., , ^. removal of child from jurisdiction of court while proceedmgs pend- ing to determine its custody, contempt, 304p. receivers; interference with their possession, 3042. possession of property that of the court, 3042. interference with such possession, contempt, 304g. such contempt may be committed by any person, whether an officer or employee of the receiver, or by a stranger, 3042. any unlawful interference with property thus m control is contempt, 304g. . ^ , • -iu any attempt to prevent or impede the receiver from complying with orders of the court in the management or operation of the prop- erty is contempt, 304^. . . maliciously inciting emploj^er of a receiver who is operating a rail- road to leave his employ is a contempt of court, 304g. rule extends to taking legal proceedings to obtain possession without sanction of court, 3042. ^.^.1.1. i * it is contempt for a sheriff to seize property in the hands ot a re- ceiver, 3042. non-payment of alimony, 304r, 304s. is & civil contempt, 304s. . ., , • • 1 distinction made by a California court between cml and criminal contempts, 304s. . , , , commitment until payment; prisoner is in custody under an execu- tion, 304s. same held in New York, 304s. . ,..,-i. i. 1 such a commitment cannot be made unless there is ability to comply with the order, 304s. , , . , -j- j ^ j v-i„ ;„ 4uty of the court to hear evidence and discharge if defendant s in- ability appears, 304s. 113i INDEX. References are to sections. COXTEMPT (continued) — Cliwracter of proceedings (continued) — where tlie inability is self-inflicted, then the order may go, 304s. the determination of this question conclusive, 304s. appeal lies from such an order, 304s. question of excess of power may be tested by habeas corpus, 304s. the question of ability to pay is jurisdictional, 304s. court has no jurisdiction to compel a party to seek employment to earn money or punish him for contempt in failing to do so, 304s. it would seem the Wisconsin court does not consider the question jurisdictional, but rather one involving discretion, 304s. defendant cannot be committed where he is earning no more than sufEcieat to pay the necessaries of life, and is without property, 304s. Witnesses, contempt of — refusal on the part of a witness to obey a subpoena is a contempt under statute and at common law, 305. it is contempt to induce a witness to go beyond the jurisdiction of the court or concealing him to prevent his attendance, 305. refusal to be sworn is a contempt, 305a. exceptions where statute permits certain persons to affirm, 305a. the exception does not give general libert}- of choice, 305ce. witness cannot claim privilege until after he is sworn, 305a. if imprisoned for refusing to be sworn, at expiration of term he can be adjudged again in contempt, if he still refuse, 305a. a Jew ofl'ered as a witness on Saturday cannot claim privilege on ground that such is his Sabbath, 30oa. in some states the privilege of affirming is open to all, 305a. refusal to testify or answer proper questions is a dii-ect contempt, ' 305b. power of court extends to punishment of witnesses subpoenaed to at- tend before a commissioner in another county, 305b. the fact that the commissioner has power to punish does not deprive the court of its power, 805b. in Michigan principal defendant refusing to testify in garnishee pro- ceedings, and disclose, may be punished as for a contempt, 305b. refusal to testify before a grand jury is a contempt which the court may punish, 305b. validity of grand jury cannot be called in question, 305b. power to punish not limited to proceedings in court, 305b. experts, refusal of, 305c. in some states not compelled to testify unless paid as an expert, 305c. interpreter held analogous to expert, 305c. expert, compelled to attend as a witness, 305c. rule quite general is that experts will be compelled to testify on pay- ment of ordinary witness fees, 305c. Privilege of icitncss under constitution, 305(7. no person shall be compelled to be a witness against himself, is its effect, 305d. this privilege is limited to criminal matters, 303d it extends to all investigations of an inquisitorial nature with respect to crime, 305d in Massachusetts and some other states the privilege is broader and extends to issues involved between other parties, 305(i. privilege protects from being compelled to disclose the circumstances of his offense, 305d. the sources from which or means by which the evidence of its com- mission or his connection therewith may be obtained or made ef- fectual against him, 3Q5d. the mere fact that his answers cannot be used against him does not satisfy the law, 30od. INDEX. 1135 Eeferences are to sections. CONTEMPT (continued) — Privilege of witness under constitution (continued) — the New York court of appeals state a doctrine riot strictly in ac- cord with that last stated, 305d the supreme court of the United States repudiates the doctrine of the New Yorij court, 305d. the effect of the term " criminal cases " as used, 305d the privilege applies to all cases in which the action prosecuted is not to establish, recover or redress private and civil rights, but to- try and punish persons charged with the commission of public of- fenses, 30jd. the New York court recently have placed themselves in accord with, the federal court, 30iid. in some states the privilege extends to civil oases, ZQod. statutory enactments; effect of, 305/. statutes; divided into two classes, 305/. the one that the evidence shall not be used against him upon prose- cution directed against him, 305/. the other declaring immunity, 305/. ^ discussion of the subject. 305/. quite generally held that the former are in violation of the constitu- tion, 305/ the latter quite generally upheld, 305/. some courts hold that neither is valid, 305/. the rule extended to act as well as words, 305gf. exposure to infamy and disgrace; privilege no longer extends to, 305/;., refusal to answer irrelevant questions, 305;. where the court is without jurisdiction, effect of refusal to answer, 305/ Privilege of icitnesses at common law, 306. viritness cannot be compelled to incriminate himself, 306. the privilege extends to such matters as may tend to criminate, 306. not confined to those matters which directly criminate, 306. criminating effect of answer, who to judge, 306a. the court must see reasonable ground to apprehend danger, 306a. the privilege that of the witness alone, 3066. waiver of privilege, 306c. witness must claim it at the outset, 306c. he may waive it or insist upon it, 306c. cross-examination; to what extent witness may be called upon to- testify, discussed, 306c. bastardy proceedings; mother of child, 306c. extreme application of the rule, 306c. case criticised, 306c, note. rule in Georgia, 306. privileged communications, political, 306a. rule with respect to executive officers of state, 306d. same, judicial proceedings and judicial action, 306c. rule, privilege applies to all matters which come before a court for judicial action, 306e. judge ordinarily not compelled to testify, 306e. arbitrators have been placed on same footing as judges, 306g. matters of fact coming to their knowledge not witliin the exemption, sources of information in criminal prosecutions are privileged, 806e. grand jurors, privileged, 306/. petit jurors, privileged, 3065r. Professional communications, client and attorney, 306ft-. such relation must actually exist to constitute the privilege, 306ft. character of communications within the privilege, 306ft. retainer not essential, 306ft. 1136 INDEX. References are to sections. CONTEilPT (continued) — Professional communications, client and attorney (continued) — wlien made to one not an attorney in fact, 3067i. communications made to a prosecuting attorney for the purpose of criminal proceedings, privileged, 306h. the communication itself must be confidential, 306^. communications made in pi-esence of both parties, not, 30Qh. where several persons on one side, communications made in presence of each other are privileged in suits by one against third persons, 3067i. parties to a contract are not entitled to claim communications as privileged, 308/i. where several parties whose interests are diverse unite in submitting questions to an attorney, they are considered privileged, 306/i. the witness must have learned the matter only as counsel and in no other way, 306ft. rule where communicated to third party for purpose of employment of attorney, 306ft. . communications from mere nominal party not privileged, 306ft. rule applies to civil as well as criminal cases, 306ft. rule applies to ail who represent the attorney — clerks, interpreter, agent or assistant, 806ft. rule applies to communications between a party, his legal adviser and his witnesses, 306ft. communications not within the scope of lawyer's duty and profes- sion not privileged, 306ft. special instances given, 306ft. 'Waiver of privilege, 308i. privilege not personal to the attorney, but solely to the client, 3062. the attorney under no circumstances can waive it, 306i. the court cannot compel it, 306i. the client may waive the privilege, 306i. in such case attorney may be compelled to testify, 306i. the mere fact that the client goes upon the stand and testifies does not operate as a waiver, 306i. the client cannot be compelled to disclose them upon cross-examina- tion, 306i. when client calls upon attorney to testify to communications, the seal of secrecy is removed, 8061 the same when the client voluntarily testifies to them, 306t.' in Massachusetts the mere fact that the client voluntarily makes himself a witness generally operates as a waiver, 306i. some cases hold that client waives the privilege by not claiming it when opportunity is present, 306i. communications for an unlawful purpose are not privileged, 306i. rule in respect to testamentary matters, 306i Documents — rule extends to, 306/. attorney cannot be compelled to produce books and papers intrusted to him by client, 306 j. or testify to their contents, 306 j. he may be compelled to testify as to the existence of paper deposited with him, 306/ rule not changed where paper required to be produced before a grand jury or magistrate to bind a criminal charge, 306/ not necessary that document should relate to the particular suit to be privileged, 306/ correspondence between attorney and client is privileged, 306fc. exception in cases of fraud by some courts, 306A:. in action by attorney against his client for fees, his written and oral instructions not privileged, 308fc. INDEX. 1137 Eeferenoes are to sections. CONTEMPT (continued) — Doouments (continued) — if papers pass out of attorney's and into third person's hands, not privileged, 306fc. m English courts, where attorney and client are both parties, rule does not apply, 306fc. rule and reasons same as respects confidential communications to attorneys, 306^. made so by statute, 306;. rule strict in some jurisdictions, 306Z. excludes testimony as to mental capacity, 308Z. the privilege is that of the patient, 306Z. the burden is on the party who seeks to exclude the eviaence, 306Z. privilege mcludes information acquired only while attending patient professionally, 306i. and limited to such as necessary to enable him to act in that canac- ity, 306?. ^ the objection must be taken before the witness testifies, 306Z. Clergymen — communications made to spiritual advisers privileged, 306to. made so by statute, 306m. Husband and wife — communications between husband and wife are privileged, 306w. they are matters which the law will not permit to be divulged, 396n. the rule and the statute embrace more than communications that are confidential, 806w. limited to such matters as occur during the existence of the marriaee. 306k. * what is privileged then remains so, though that relation has ceased, 306n. in some states after death of one of the parties it is limited to private conversations, 306n. the Ohio statute, 306n. in an action for damages against a parent for alienation of wife's af- fection, husband competent to testify to handwriting of wife in let- ters addressed to him, 306n. the letters also are competent evidence, 306n. statutes sometimes prohibit disclosure without the consent of parties, 306??, under such statutes by common consent they become competent wit- nesses, 306?i. rule somewhat similar to that governing communications between attorney and client, 306n. if communication made in known hearing of third persons it is not privileged, 306ji. in some states the rule has been limited to excluding strictly confi- dential communications, 806m. third party cannot testify to statements made to him by husband or wife when no one else was present, 306»i. in some states such rule does not prevail, 306»i. conversation by one with a third person in the presence of the other,, not privileged, 306?i. if only in the presence of young children, rule not affected, 30671. where statute merely forbids all confidential communications, all communications are not included, 306?i. confidential communications, defense, 806n. statute not applicable in cases of personal violence to the wife com- mitted by the husband, 306ri. nor in actions for divorce, 306w. 72 1138 INDEX. References are to sections. CONTEMPT (continued) — Husband and wife (continued) — nor in actions for necessaries furnished wife, 306?t. Misconduct of party other than direct disobedience of order or decree, 306p. acts and conduct apparently not within the statute, 306p. Officers of the court — corrupt conduct, oppression, wilful neglect of duty, misbehavior in office, constitute contempt of court, SOBg. the rule extends to inferior judges and magistrates, 3062. Clerks of courts, 30Gq. see Clerks op Court. Sheriffs, 306q. see Sheriffs. Attorneys, 306g. see Attorneys. Jurors, 306s. see Jurors. Misconduct of third persons, 306<. incidents, 3061 is classed as civil contempt, 306f. Excuses; purging after commitment, 306rt. advice of attorney, 306;:. intent with which the act was done. 306it. whether, where party is committed until indemnity is paid, court can release, qucere, SOGu. also whethei- court can remit fine, qucere. 306tt. inability to pay or comply with order, 306ii. Notice and opportunity to be heard; direct contempts, 307. constructive contempts, 307. Revieio of proceedings. 308 et seq. question of jurisdiction always open to review, 808. validity of the order violated is a subject of review, 308. if void, proceedings will be reversed, 308. method of review, 308a, 413-414. by appeal in some courts, 302, 412. in others appeal does not lie, 303-308a, 413-414. in civil contempts, appeal lies, 302^08a, 413. appeal, when allowed, 308c. certiorari a proper method in certain cases, 3086, 444 see Certiorari, 444. commitment for, in absence of order adjudging party guilty, 15. the power to punish for. by other than judicial tribunals, 309. the power vested in federal and state legislatures does not extend to municipal boards and the like, 309. legislative power, 309ci. doctrine of state courts, 309&. Review of proceedings upon habeas corpus — creditors, see Habeas Corpus, 345 et seq. question of jurisdiction only open, 345. sufficiency of cause of commitment not open, 345. statutes, effect upon the remedy, 347. adjudication is a conviction; commitment is an execution, 346. judgment distinguished from jurisdiction, 348. commitment for refusal to obey void order, prisoner will be dis- charged, 348, 461. commitment for contempt in absence of order adjudging defendant guilty, 15. errors rendering the commitment voidable not subject to review, 349. INDEX. 1139 References are to sections. CONTEMPT (continued) — Review of proceedings upon habeas corpus (continued) — nor will the question of the sufficiencv of the facts be reviewed, 349. whether the matter charged is a contempt; extent of the inquiry, 350, 457 et seq. -^ j' • doctrine of the New York court, 351. doctrine of the Wisconsin court, 352, 458. doctrine of the California court, 354, 461. doctrine of the Iowa court. 350. 462. doctrine of federal, circuit and district courts, 356. subject discussed, 353. whether prohibition will lie, see Prohibition, 459 et seq. CONTINUANCE — mandamus wiU not lie to compel, 605. CONTRACTS — mandamus does not ordinarily lie to enforce, 573, 798-823. the mere fact alone that the duty arises out of contract not sufiBoient to preclude mandainus, 894. charters held to be, in Massachusetts, 813. acceptance of ordinance by water company, when it constitutes, 878. legislature may not impair, 837. Municipal contracts (see Bonds ; Mandamus ; Municipal Corporations)— amount of tax cannot be restricted after issue of bonds, 738. vacating charter of city, resulting in repudiation, 738. when contract becomes complete in matter of subscription to stock, 758. mandamus lies to compel municipality or officer to proceed to coUect improvement assessment due contractor, 758. duty of municipal body in letting contracts, 771. discretion not controlled, 771. efiEect of reserving right to reject bid, 771. contracts for public printing, 772. rule when contract has been awarded, 773. mandamus lies to compel designation of paper, 773. Benefit societies {s&e Mutual Benefit Societies) — courts open to determine contract relations of members, where by- laws silent, 879. mandamus does not lie to enforce assessments, 894. nor to enforce payment of insurance, 894. breach of, not ordinarily svifficient ground for expulsion of member, 875. CORPORATIONS (see Municipal Corporations; Private Corporations; Mutual Benevolent Societies; Railroads; Water Companiib; Street Railways; Telephone and Telegraph Companies; Re- ligious Societies; Gas Companies; Canal Companies; Turnpike Companies). COUNTY CLERKS — character of duties, 678. may be compelled to execute tax deed, 678. to transfer record^ to new county, 681. to make report of fees, 679. COUNTY JUDGE (see Probate Court). COUNTY SEAT— removal of tested by mandamus, 684 writ directed to officer to compel holding of office at county seat, 684. the whole question involving the election is open to inquiry, 684. 1140 imhex. Eeferences are to sections. COUNTY SEAT (continued) — in many states the proceeding is regulated by statute, 684. in Nebraska it is held the court cannot go behind the face of the re- turns, 684. county board in acting upon petition, etc., whether they act judi- cially or in an administrative capacity, courts not agreed, 433a, 713. in Wisconsin extrinsic evidence may be received to establish iden- tity of names, 713a. their judgment upon evidence not subject to review, 713a. the board may be compelled to exercise its discretionary power, 713a. in Minnesota decision of board as to sufficiency of petition conclu- sive, 714 if the erasing of names involves questions of fact the writ will not lie to restore. 714. if merely a question of law involved, writ will lie, 714. in Nebraska the court determines the sufficiency of the petition from the evideaoe, 715. in Nevada the proceeding on the part of the board is judicial, and mandamus does not lie, 716. canvassing votes cast at such an election, 717. duties of the board are merely ministerial, 717. in Iowa it was held, where the duty of canvassing devolved upon the county judge, they were judicial, 716. the character of the act, not the nature of the office, determines the question, 718. announcement of result may be compelled, 719. COURTS (see Federal Couets) — Supreme court of the United States — jurisdiction in m,andamus, 629 et seq. jurisdiction in habeas corpus, 314 it has original jurisdiction in certain cases, 315. and appellate in others, 315. it may exercise its appellate jurisdiction directly, 315. such jurisdiction only extends to jurisdictional questions, not to errors of law, 315. may review upon appeal decisions of the circuit court made in habeas corpus proceedings, 315. record, to what extent examined, 313. if the record discloses a double conviction the prisoner will be dis- charged, 313. duty to award the writ is not absolute, 315. may review upon appeal decisions of the circuit court made upon habeas corpus, 315. application to the circuit court in the first instance preferable, 315. Proceedings pending in state court — disci-etion exercised in awarding the writ prior to conclusion, 316. discretion also exercised, whether accused shall first be put to his writ of error from highest court of state, 316-31, 323. not authorized to issue writ on ground that state statute is repug- nant to state constitution, 322. such statute must conflict with federal constitution, 333. fugitives from justice, jurisdiction, 384. Jurisdiction in mandamus — writ may issue from, 639. except in certain cases the writ only issues in aid of appellate iuris- diotion, 629. subject discussed, 639. mandamus to an officer is the exercise of appellate jurisdiction, 639. to an inferior federal court, appellate. 639. INDEX. 1141 References are to sections. COURTS (continued) — State supreme court, or court of last resort — when mandamus may issue from, 634. in some states writ only issues in aid of appellate jurisdiction, 634 in otliers such courts have original jurisdiction, 634. good reason must be shown for not applying to subordinate court having jurisdiction, 634. State courts of general jurisdiction (see Jurisdiction; Impeachment of Judgments; Judgments op Sister States). When proceeding out of the course of the common law (see Jurisdiction; Impeachment of Judgments; Judgments op Sister States). Probate courts (see Probate Court). Justice court (see Justice Court). COtTRTS-MARTIAL (see Habeas Corpus; Prohibition) — review of proceedings. 376. question of jurisdiction may be inquired into, 876. errors cannot be reviewed. 376. mere moral restraint not suiBcient, 376. are courts of special and limited jurisdiction, 376. a valid enlistment is essential to jurisdiction, 376. recitals of jurisdictional facts must be affirmatively proved, 376. such proof may be contradicted by extrinsic evidence, 376. enlistments in federal service; jurisdiction of federal courts exclu- sive, if party in custody of federal authorities, 377. Milligan case, 376, note, when prohibition will lie, 465. CREDITORS (see Impeachment op Judgments by Strangers). CROSSINGS (see Railroads). CULVERTS (see Railroads). CUSTODY OF CHILDREN (see Habeas Corpus; Divorce) — husband and father has primary right, 280. this right cannot be superseded without notice to him in a private action, 380. the subject may be, but is not necessarily, an incident to divorce pro- ceedings, 280. right of custody, a personal right, 380. decree cannot award custody to the wife when service is by publica- tion only, and husband a non-resident, 280. decree in divorce proceedings cannot affect children domiciled out of the territorial limits, 381. purpose of habeas corpus not to recover possession, but to discharge from illegal restraint, 358. character of proceeding, 359. ordinarily purpose is to determine wliich party is the most suitable to have control of the child, 359. child ordinarily need not be witliin the territorial jurisdiction if wrong-doer is, 360. whether demand should first be made, 361. petitioner must affirmatively show his right, 363. Order of the court — , „ ^ • ^ o/.n if child of the age of discretion, it will be freed from restraint, db<3. if not, he will be assigned to proper custody, 363. paramount right is in the father, 363. doctrine stated by the New Jersey court, 364. doctrine stated by the Michigan court, 365. , , ^, ,- doctrine generally is that the father's right is limited by the welfare of the child, 366. 1142 INDEX. References are to sections. CUSTODY OF CHILDREN (continued) — Order of the court (continued) — doctrine extends to cases wtiere parent seeks custody of child from third persons, 367. the father may relinquish his right by contract, 367. he may forfeit it by abandonment, 367. or lose it by being in a condition of total inability to afiford it neces- sary care and support, 367. rule does not go to the extent that the child can dictate his custodian, 368. writ generally discharged in cases of children of discretion, 868. rule carried to the extreme by Wisconsin court, 368. fitness of parties, a question always open, 369. character and ability to be considered, 369. where both parties are of immoral character, court may select a third person, 369. surrender having been made by parents, the right thereafter to re- claim, 370. contracts surrendering children, validity of, 371. an agreement by the father of itself would not operate against the mother after his death, 371. some courts inclined to a more strict adherence to the rule that the father's right is paramount, 378. also that he may reclaim the child where former objections no longer exist, 373. statutes j)roviding for the placing of abandoned or destitute children in charitable institutions, 373. where parents not parties to the proceedings they are not bound, 373. the question that remains is the welfare of the child, 373. such statutes are not penal, 373. age of discretion to express a choice, 374. the question is one for the court, 374. illegitimate children; the mother has the paramount right, 375. father has, against all but the mother, 375. in other respects rule not different from that of legitimate children, 875. D. DAMAGES — action for, ordinarily not such a remedy as will preclude mandamus, 581. award of in laying out highway, payment enforced by mandamus, 588. see Liability of Judicial Officers, DEMAND AND REFUSAL — demand need not precede mandamus to levy tax to pay judgment upon bonds, 745. whether essential in case pf other judgments, quaere, 745. generally when necessary, 563a, 586. DIRECT ATTACK (see Impeachment of Judgments, 136 et seq.) — definition of, 141. DISCRETION — of courts in allowing writs of certiorari, 434. of appellate court in review of proceedings of subordinate courts, 444/. of court in habeas corpus in advance of trial, 21. of courts in mandamus, 568 et seq. of courts in prohibition, 448. discretionary acts of courts, boards or oflScers ordinarily not subject to review, 573 et seq., 658 et seq. INDEX. 1143 References are to sections. DISCRETION (continued) — of attorney-general in quo warranto, 503. abuse of discretion, when controlled, 573 when exercised with manifest injustice, 574. DIVORCE — character of the proceedings, 260. not strictly in personam, 260. nor are they strictly in rem, 260, 261. they are peculiar and exceptional, 360, 361. ^^ocA®""^®® *^®® ^^^ status of the parties for all time and all purposes, each state may adjudge and declare the status of its own citizens, 361. status of non-resident party, not personally served, how far affected, the decree has no extra-territorial force, 363. status, how far affected by public policy or comity, 263. the doctrine is in some states that public policy demands that the de- cree shall be valid as to both parties. 263. the doctrine and that of comity ignored in other states, 263. the doctrine in Iowa, 263. the provisions of the constitution and act of congress relating to the faith and credit that shall be given judgments, how far applica- ble, 264 in some states held to apply, 264. in others the general rule prevails that the judgment is of no effect upon a defendant not personally served, 264. doctrine pronounced in Maine in a case presenting peculiar features, .cOO. substituted service upon a resident defendant out of the iurisdiction. 366. subject discussed, 267. due process of law defined, 367. place of domicile governs as to causes and tribunals, 268. the Vermont court and courts of some other states, contra, 268. husband and wife may have separate domiciles, 269. if wife lives separate and apart from her husband without sufficient cause, his domicile is her domicile, 269. in such a case a divorce is valid if granted on substituted service only, 269. if she lives separate and apart for sufficient cause she may acquire a separate domicile, 369. effect of statutory requirements upon the question of domicile, 370. jurisdiction resting by statute upon residence of plaintiff alone, pre- cludes wife from suing for divorce there, where she has a separate domicile, is the doctrine of some courts, 270. plaintiff's want of residence is a personal disability and may' be cured, 370-273. it is matter in abatement, and not in bar, 370. other courts hold that the wife's domicile follows the husband; that she may sue there, 370. Alimony — defined; it is not separate property nor an estate, 271. it is a mere personal duty on part of the husband, not a charge upon his estate, 371. distinction between alimony and division of estates under statute, 372. effect of decree upon dower, 373. it does not bar right of, where court did not have jurisdiction over the wife, 373. alimony may be permanent or temporary, 374. jurisdiction to award alimonj can only be acquired by personal serv- ice or appearance, 375. 114:4: INDEX. References are to sections. DIVORCE (continued) — Alimony (continued) - rule in Iowa somewhat different, 375. non-resident defendant may commence proceedings for divorce and alimony, where jiu-isdiction was not acquired, 276. alimony is only incident to a suit for a divorce, 377. in some com-ts the doctrine is otherwise, 379. court has a continuing power of review, 278. cannot allow where decree is final, 279. a division of property decreed is final, 279. the allowance of a gross sum is alimony, unless expressly decreed to < be a division of estate, 379. Custody of children — husband and father has primary right, 280. this riglit cannot be superseded without notice to him. in a private action, 280. the subject may be, but is not necessarils', an incident to divorce pro- ceedings, 280. such right of custody is a personal right, 280. decree cannot award custody to the wife where service is by publi- cation only, and husband a non-resident, 280. decree cannot affect cJiildren domiciled out of the territorial limits, 281. Fraud practiced in procuring a decree — plaintiff m^ust actuallj'- reside in the jurisdiction, 383. where neither of the parties so reside a decree obtained is absolutely void, 382. concealment from defendant of the pendency of proceedings renders void a decree, 284. seeking a domicile for the purpose of obtaining a decree renders void the decree, 283, 384. remarriage; effect of decree upon status and rights of the parties to, 385. where the party prohibited from marrying in state where dacree is obtained, he may lawfully remarry in another state, 285. the doctrine is otherwise in some jurisdictions, 285. and in some to the effect that if the purpose was to evade the law his marriage will not be recognized. 385. marriage between white persons and negroes not recognized in states where prohibited, though solemnized elsewhere, 285. recitals in deci-ee not nonclusive against collateral attack, 286. it may be shown parties were not residents or that no service was had upon the defendant, 286. DOWER (see Divorce) — judgment of foreclosure not a bar to subsequent proceedings to re- cover dower where widow had not signed mortgage, though made a party, 8. DUE PROCESS OF LAW — what constitutes, 30, 33, 367. E. EJECTMENT, ACTIONS OF — not strictly proceedings in rem, 319. the judgment has no force as to strangers, 219. such actions are personal, having for the subiect-matter real prop- erty, 219. INDEX. H45 References are to sections. ELECTIONS (see Quo Warranto; Mandamus; County Seat; Board op n«StfiI1: ?^' ^J^^*^^ ^^^ Officers; Private Corporations) - certificate of election, prima facie evidence of the right 507 court may go behind the ballot-box and purge the return, 507. 508^ -^''*"" ■^"''*^ character of the certificate is destroyed, matters relating to the conduct of the election, 508. irregularities merely do not invalidate, 509. or impeach presumptive force of the certificate. 509. to have such effect it must appear that, by reason thereof, legal votes were not received, or illegal votes were received, 509. If by misconduct or fraud it appears the canvass is false, the force of the certificate becomes destroyed, 509. voter only entitled to vote in precinct where he resides, 509. failure to provide for registration where required, fatal 509. constitutionality of registration laws, 509. Bribery, effect of — conviction for the offense of; disqualification, 519. in some courts, use of corrupt means does not, 519. in some others such conduct only reaches votes which were in fact influenced, 519. votes influenced by promise to donate money or other valuable thing to third party, illegal, 519. same, where promise is to perform duties at less than the salary, 519. officers of private corporations may be compelled by mandamus to call and hold election, 854. may be enforced, 688. Public elections — announcement of result may be compelled, 719. certificate of election may be compelled. 723. right and title to office, how far determined upon mandamus, 685. notice of an election will be compelled after charter day has passed, 688. the holding of a special election to fill a vacancy will be enforced, 688. the proper board or officer may be compelled to place name upon official ballot, 689. secretary of state will be so compelled, 689. appointment of election officers may be compelled, 690. ELIGIBILITY (see Aliens; Quo Warranto, 514 et seq. EQUITY — judgments may be set aside and vacated by suits in, on ground of fraud, accident or mistake, 92, 142, 155, 158. also on the ground of want of jurisdiction of the person, 143. recitals of service or appearance may be shown to be untrue, 145. return of the officer cannot be' contradicted, 147. grounds for relief enumerated, 148. appearance by unauthorized attorney, 149. equitable defense not available at law or legal defense prevented by fraud or accident, as a ground for relief, 150. accident or surprise as ground for, 151. mistake as a ground, 152. newly-discovered evidence, when ground for, 153. party must show he was free from neglect, 153. grounds arising subsequent to trial; payment; release; satisfaction of judgment, 154. equity will relieve from a fraudulent or corrupt use of a judgment, 156. character of the fraud, 157; 1146 INDEX. Eeferences are to sections. EQUITY (continued) — fraudulent concealment, 157. rule applies, though there may be an adequate remedy at law, 158. fraud in any case is ground for equitable relief, 158. fraud in procuring evidence of jurisdiction, 168. fraud upon the court or tribunal, 161. fraud preventing party from fully exhibiting his case, 163. fraud in procuring service of process, 163. perjury as a ground for relief, 164. matters involved in the issue; errors of law not, 165. no jurisdiction to try title to office, 497. jurisdiction conferred in many states to determine title to office in private corporation, 534. where it becomes necessary in an action in equity to determine it, rule, 535. no jurisdiction to restrain a corporation from performing acts within its power for defects in organization, 537. nor because its purpose is to establish a monopoly, 537. proceedings pending in chancery, effect upon remedy by mandamus, 587. if the precise relief is open for determination, writ will be refused, 587. otherwise if the decree would not settle the controversy or only be final between the parties, 587. equity will not assume jurisdiction where there is an adequate remedy at law, 142. where court without jurisdiction of person, rule does not apply, 143. suit in equity to dissolve benevolent society, jurisdiction, 876. EXCESS OF JURISDICTION (see Jueisdiction; Habeas Corpus; Ceb- TiORAEi; Prohibition; Liability of Judicial Officers) — general rule, 22. procedure must conform to legal methods, 23. authority to render the particular judgment must exist, 24 cumulative sentences, 26. trial for two distinct offenses at the same time, 27. judgment in excess of that prescribed by law, 28, 817. distmction between degree and kind, 29. judgment in excess of jurisdiction, 312, 313, 317. EXECUTION — whether mandamus will lie to compel issue of execution on money judgment, qucere, 663. will lie to compel upon other class of judgments, 663. EXECUTIVE OFFICERS (see Officers). EXECUTORS AND ADMINISTRATORS (see Bonds; Impeachment of Judgments) — settlement of accounts, a proceeding in rem, 215. EXEMPTION — suits to evade, in other jurisdictions, 89. EXPERTS (see Witnesses; Contempt,' 305c). EXTRADITION (see HABteAS Corpus, 383 et seq.; Fugitives from Justice, 383 et seq.). F. FEDERAL COURTS (see Courts)— cannot enjoin proceedings in state courts, 82. except in proceedings in bankruptcy, 82. may enjoin state officers from executing state law in conflict with federal constitution, 82. INDEX. 1147 References are to sections. FEDERAL COURTS (continued) — jurisdiction of, cannot be restricted by state legislation, 96. nor can the state impose restrictions upon removal of causes, 96. nor can they provide for removal of causes to the federal court, 96. nor prevent citizens of other states from bringing actions therein, 96. nor regulate proceedings therein, 96. nor confer jurisdiction thereon, 96. rules of practice in state courts with respect to bills of exceptions, writs of error and charging juries have no application to practice in federal courts, 96. equity jurisdiction of. cannot be affected, 97. under the constitution such jurisdiction must be uniform in the sev- eral states, 97. equitable remedy provided by state law may be enforced by the fed- eral courts, 97. personal actions against the owners of vessels concurrent with state courts. 98. exclusive jurisdiction of federal courts relates to proceedings in rem,98. maritime contracts; jurisdiction of, concurrent with state courts, 98. insurance contracts; jurisdiction same, 96-98. contracts to transport passengers, same, 98. owner's interest in vessel may be attached in state court, 99. where tort not maritime, admiralty courts are without jurisdiction, 100. statutory liens may be enforced in state court by proceeding in per- sonam and with attachment, 100. state courts have jurisdiction for damages caused by vessels to prop- erty on land, 100. goods lost at sea by burning of vessel, subject of admiralty jurisdic- tion, 100. lien of wharfage, subject of admiralty jurisdiction, 100. contracts for building ships, supplying engines, etc., are not mari- time, 100. sale of vessels on unpaid mortgage cannot be decreed in admiralty, 100. when writ of mandamus may issue from the circuit court and dis- trict courts, 630. no authority to issue it as an original writ in any case, 630. writ cannot issue from, to state courts or state officers, 630. the exception is that the writ may issue as a process to enforce judg- ments, 630 cannot issue to compel levy of a tax to pay municipal bonds, 680. nor to compel register of land office to grant final certificate of pur- chase, 630. when judgment has been obtained, writ may issue to enforce it, 630. jurisdiction of federal courts exclusive if party in custody of federal authorities, 377. fugitives from justice; jurisdiction, 384. circuit and district courts are of limited, but not inferior, jurisdic- tion, 133. same presumption is given to their records as is given to courts of general jurisdiction, 123. see Removal op Causes; Supreme Court of the District of Columbia, 630. has power to issue writs of mandamus as an original process, 631. Concurrent jurisdiction of {see Concurrent Jurisdiction). Criminal jurisdiction of — section 711, Revised Statutes, defining jurisdiction of, 101. limitation of the power of congress, 101. concurrent jurisdiction of federal and state courts, 101 et seq. exclusive jurisdiction of federal courts, 101 et seq. 1148 INDEX. References are to sections. FEDERAL COURTS (continued) — Criminal jurisdiction of (continued) — same act may constitute an offense against two sovereignties, 101 et seq. each jurisdiction may punish for the same offense against its sover- eignty, 101 et seq. embezzlement from national banks, 105 et seq. FENCES — duty of railroad company to maintain, 800-816. FINE (see Sentence). FORMER JEOPARDY — courts have jurisdiction to determine issue, 17. after judgment and sentence, where second conviction appears on face of judgment, prisoner will be discharged on habeas corpus, 17. Indiana court, contra, 335. sentence on more than one conviction, rule, 17. Waiver of (see Waiveb of Constitutional Rights, 58 et seq.) — verdict rendered during defendant's absence in jail bars further pros- ecution though set aside on defendant's motion, 59. jeopardy not created unless there has been a legal trial and a verdict, is the doctrine of some courts, 59. in others, jeopardy attaches when jury are sworn, 59. conviction for lesser offenses bars further prosecution for gi-eater, 60. nolle prosequi, effect of, 61. after jury impaneled and witnesses sworn, proceedings cannot be arrested, 61. motion in arrest of judgmeiit; effect of, 63. operates as a waiver in most states, 63. not so in Wisconsin, 63. validity of act authorizing waiver of jury a question for the court, 18. question of former jeopardy ordinarily not reviewable on habeas corpus, 330. prohibition will not issue to restrain proceedings on ground of, 467. judgment reversed for failure of proof bars further prosecution, 63. FRANCHISE (see Mandamus; License; Private Corporations) — public, operating, 801. exclusive, validity of, 837. FRAUD — courts of equity may set aside judgments obtained by fraud in an- other court, 92, 143, 155, 158. rule applied to decree directing sale of infant's lands, 93. and sales by executor under decree, 93. equity will relieve against a fraudulent use of a judgment, 156. character of a fraud that will invoke this jurisdiction, 157. fraudulent concealment, 157. fraud in any case is ground lor equitable jurisdiction, 158. fraud in procuring evidence of jurisdiction, 160. fraud upon the court or tribunal, 161. rule applied, though there may be an adequate remedy at law, 158. fraud preventing a party from fully exhibiting his case, ground for relief, 163. service of process procured by, 163. perjury as ground for relief, Wi. fraud in collateral attack of judgments of courts of limited jurisdic- tion, 187. fraud in collateral attack of judgments of sister states, 303, 303. fraud in collateral attack of foreign judgments, 310. fraud may be presumed where judgment is at variance with all ac- knowledged principles, 198. INDEX. 1149 References are to sections. FRAUD (continued) — strangers may impeach a judgment procured by fraud, 233-336. not all strangers, but such as may be prejudiced by it, 333-236. the fraud must have been participated in by party to the suit, 336. or if property has been sold by the vendee. 236. judgment excessive as a result of fraud or collusion, may be im- peached, 337. sureties may impeach judgment against the principal on grounds of fraud, 340-348. in some courts, only in a direct proceeding, 319. creditors may impeach judgments against assignees on ground of fraud, 350. stockholders may impeach judgments against corporation on ground of fraud, 257. they cannot impeach them collaterally; they are parties, 357. fraud in procuring divorce, see Divorce, 283-386. plaintiff must actually reside in the jurisdiction, 382. seeking a domicile for purpose of obtaining a divorce is fraud, 283. decree thus obtained is void, 383-384. concealment of pending proceedings is such a fraud as renders a de- cree void, 384. FREIGHT — duty of railroad companies, 800. mandamus to enforce, 800-833. FUGITIVE FROM JUSTICE (see Habeas Corpus, 383 et seq.)— when a fugitive, 383. one not actually present in the state vs'hen crime committed is not, 383. jurisdiction of federal and state courts, 384. state courts do not proceed when it appears the petitioner is held under federal authority, 385. state courts not prohibited because rights or laws are involved, 386. agent selected to convey a fugitive not a federal officer, 387. nature and extent of the inquiry upon habeas corpus, 388. the court will examine the extradition papers to determine lawful- ness of the arrest, 388. the affidavit or indictment may be examined, 389. the affidavit; sufficiency of, 390. allegations must be positive and direct, 390. sufficient must appear to show tribunal has jurisdiction to try the accused for the offense charged, 390. statement merely that a designated crime has been committed ordi- narily not sufficient, 391. otherwise as to murder, larceny, and the like, 391. the indictment, sufficiency of, 393. must charge a crime, 393. the court or officer may examine it, 393. matters of substance only will be examined, 393. test of sufficiency, 393. , . j, .^- , ^ determination of the governor that the accused is a fugitive, how tar conclusive, 394. i, i- -j. r governor of demanding state the only judge of the authenticity ot the affidavit, 395. the executive warrant, effect of, 396. prima facie evidence that precedent conditions have been complied with, 396. court may examine preliminary documents, 396. where such papers are withheld court can only look at the executive warrant, 396. . . , , . on,, •warrant need not state facts constituting the crime, 396. 1150 INDEX. References are to sections. FUGITIVE FROM JUSTICE (continued) — copy of the affidavit or the indictment need not accompany execu- tive warrant, 396. this rule does not prevail in all jurisdictions, 396. in some, the warrant must state the facts, 396. whether act charged constitutes a crime in state where committed, how determined, 397. the fact of indictment found, sufficient in some states, 397. in others, in absence of proof, the law of the demanding state will be considered the same as in state where demand is made, 397. in others by statute the printed statutes may be resorted to, 397. identity of alleged fugitive always open to inquiry, 399. arrest prior to demand, 400. alleged fugitive may be arrested and held a reasonable time, 400. mtist, however, stand charged with the crime in the state where com- mitted. 400. Illegal extradition — prosecution for another offense, 401. the rule under treaty stipulations with foreign countries, 401. rule where none such exists, 401. rule in the states, 401. the individual inducing extradition cannot tal^e advantage of to ob- tain civil reparation, 401. rule otherwise where accused has been brought within reach of pro- cess without legal authority, 401. fugitive under charge in state where found, 403. the demand of its law may first be satisfied, 403. rule different in California where arrest is sought in civil process, 403. Foreign extradition — exists by force of treaty, not of comity, 403. if surrendered, the fact that crime is not included in the treaty does not entitle to a discharge, 403. the determination of the judicial officer is not conclusive upon the president, 403. the granting of the executive warrant does not preclude inquiry afterwards, 403. congress alone has power to determine what officers may hold exam- inations, 403. a commissioner, simply as such, has no such authority, 403. proceedings of commissioners subject to review, 404. extent of the inquiry, 404. federal statute, evidence under, 405. fugitive entitled to process at the expense of the government, 406. proceedings before commissioners analogous to those before examin- ing magistrate, 407. complaint, sufficiency of, 408. G. GAENISHMENT — affidavit in Wisconsin may be amended so as to cure defect of juris- diction, 55. defective service may be waived, 56. is waived by moving to set aside judgment on default, 56. cannot thus bind principal defendant, 56. proceedings not strictly in rem, 336. are within the rule of attachment, 336. distinction is, tliat garnishment reaches property that cannot be seized on attachment. 836. right or title of third persons not affected, 326. see Attachment; Judgments in Rem. INDEX. 1151 References are to sections. GARNISHMENT (continued) — the judgment against a garnishee, 253. not binding on creditors, 253. whether the judgment itself operates as a bar, courts not agreed, 253. detendant in action bound by judgment against, 253. GAS COMPANIES (see Quo Wareanto; Mandamus) — distinguished by some courts and in some respects from water com- panies, 838. are quasi-puhlio corporations, 839. whether they caii be compelled to furnish gas to all applicants, courts not agreed, 840. creating a monopoly; usurpation of powers, 545&. GOVERNOR — whether mandamus will lie to compel performance of duty, courts not agreed, 646 et seq. distinction with respect to purely ministerial acts, 647. recent decision of New York court of appeals, 649. doctrine of supreme court of United States, 649. writ has been issued to compel issue of commission, 650. canvass of returns, 650. drawing warrant upon treasurer, 650. signing and execution of patent for lands. 650. to authenticate as a statute a bill not signed, 650. GRAND JURORS (see Juey). H. HABEAS CORPUS (see Former Jeopardy, 17, 18) — definition, 810. in the nature of a writ of error, 310. the right to liberty is the only subject of inquiry, 310. the proceeding is a new suit, 810. there must be actual confinement or present means of enforcing it,. 310o. jurisdiction and the validity of the process are the only questions considered, 311. judgment in excess of jurisdiction, 812, Record, to what extent examined, 813. rule in the supreme court of the United States, 813. If record discloses a double conviction the prisoner will be discharged, 818. after conviction and sentence, writ only lies where there is an ex- cess of jurisdiction, SIS. or where there is no authority for holding the defendant under it, 313. whether the act charged is a crime is a question for the trial court to determine. 814. if constitutional rights of accused are involved he will be released, 314 Jurisdiction of the supreme court of the United States, 814. it has original jurisdiction in certain cases, 315. and appellate in others, 315. it may exercise its appellate jurisdiction directly, 315. such jurisdiction only extends to jurisdictional questions, not to errors of law. 315. its duty is to award the writ unless it is clear the accused would be remanded, 315. 1152 IjStdex. References are to sections. HABEAS CORPUS (continued) — Jurisdiction of the supreme court of the United States (continued) — the right to the writ under the present law is not absolute, 315. may review upon appeal decisions of the circuit court made upon habeas corpus, 315. application to the circuit court in the first instance preferable, 815. Proceedings pending in state court — discretion exercised in awarding the writ prior to conclusion of, 316. discretion also exercised whether accused shall first be put to his writ of error from highest court of state, 316. Final judgments of courts of general jurisdiction; prohibition of stat- ute, 317. statute has no application where commitment is without jurisdiction, 317. in some jurisdictions, not where there is want of authority to render the particular judgment, 317. the remedy is placed beyond legislative discretion, 317. judgment distinguished from jurisdiction, 318. sentence in excess of law, 319. the excess voidable only on writ of error, 319. prisoner having suffered the legal penalty will be released, 319. Former jeopardy (see Former Jeopardy) — question of, not reviewable upon habeas corpus, 320. whether indictment charges an offense is a question of law, 321a. some courts hold it is so far jurisdictional that habeas corpus will issue, 321a. whether warranted by the constitution is a question that wiU be de- termined upon habeas corpus, 321a. Constitutional laius, conviction under — if proceedings or law are unconstitutional prisoner will be discharged, 322. discretion exercised in granting writ in advance of trial where ground is unconstitutionality of law, 21. the federal court after trial commenced will generally await deter- mination in state court of last resort, 322. federal court not authorized to issue writ on ground that state stat- ute is repugnant to state constitution, 322. to authorize discharge upon the writ such statute must conflict with the federal constitution, 322. ^ municipal ordinances in conflict with personal rights, 322a. conviction under proceedings not conforming to constitutional meth- ods will authorize discharge, 21. persons sentenced without indictment will be discharged, 331-23. states may provide for punishment by information, 323. in federal courts indictment cannot be amended, 324. in state courts information may be, 32-1. see Waiver of Constitutional Rights. Extent of inquiry — competency of grand jury not open to inquiry, 325. nor validity of law under which they were impaneled, 325. sufficient that the body acted under color of legal authority, 325. jurisdictional questions must be determined from the record, 326. the record cannot be impeached by extrinsic evidence, 326. the record must show jurisdiction, 327. the presumptions that apply in civil cElses will not be indulged in, 327. record must show that prisoner was asked if he had anything to say why sentence should not be pronounced, 327. that warrant was not filed with justice until after trial and imprison- ment might be shown was the ruling of a court, 327. INDEX. 1153 References are to sections. HABEAS CORPUS- (continued) — Final judgments of inferior and other courts — rule same as judgments of superior courts. 328. what the record must show in either court, 338. the omission of some of the requirements may not render the judg- ment void, but may constitute reversible error, 328. regularity of proceedings, presumption of, 329. erroneous sentence merely voidable, not void, 330. relief will be granted for cumulative sentences when unlawful, 36. rule where writ applied for or issued prior to judgment, 331. in most of the states tlie rule is the same as where issued subsequent to judgment, 331. only matters of jurisdiction open to inquiry, 381. though statute may require discharge when it shall appear that law and justice require it, 331. indictment or information not charging an offense will not authorize discharge. 332. exception made by the California court, 333. •change of venue; denial of right, 333. in some states mere error; in others, matter of jurisdiction, 338. statutes, effect of, which provide that return may be traversed and I an inquiry made into the facts, 334. statute construed, 335. the words of the statute limited to the lawfulness of the authority under which the prisoner is detained, 335. the guilt or innocence of the accused not a subject of inquiry, 84, 384 in Indiana evidence may be examined to determine question of juris- diction, 336. Meview of proceedings of committing magistrate — rule relaxed so as to permit a more extended inquiry, 387. evidence maybe examined to determine whether it reasonably tends to show the commission of an offense, 337. as well as whether it reasonably tends to show probable cause for the charge made, 337. where complaint shows want of jurisdiction, the prisoner will be dis- charged, 838. Statutes regulating scope of inquiry, effect of, 839. courts ordinarily will not interfere while examination is pending, 840. federal courts will not determine whether facts constitute a crime, 341. writ may issue from state court when it does not appear prisoner is detained by process of federal court, 83. Custody under civil process — formerly the issuing of the writ was discretionary, 843. regulated by statute, 348. extent of the inquiry, 344. . ,. ,. „ ,, ^ , , , the validity of the process and the jurisdiction of the court the only subjects, 844. Contempt proceedings — the question of jurisdiction only open, 345. sufficiency of cause of commitment not open, 345. adjudication is a conviction, commitment is an execution, 346. statutes, effect of, 347. judgment distinguished from jurisdiction, 348. prisoner committed for refusal to obey void order will be discharged, 348. illustrations of application of rule, 348. , . j. , errors which render the commitment voidable not subject to review, 349. 73 1154 INDEX. Eeferences are to sections. HABEAS CORPUS (continued) — Contempt proceedings {continued.) — _ , „,„ nor will the sufficiency of the facts be determined, 349. _ _ whether the matter charged is a contempt; extent of the mquiry, 350. New York court, doctrine of, 351. Wisconsin court, doctrine of, 352. California court, doctrine of, 354. Iowa court, doctrine of, 355. federal, circuit and district courts, doctrine of, 356. subject discussed, 353. Bail, admitting prisoner to, 357. discretion of covurt in capital cases, 357a. extrinsic evidence, 3576. circumstances extraordinary which may create an exception to the rule, 357c. where there has been a trial and disagreement, 357d. where confinement will endanger life, 357e. rule where application is made before indictment, 357/. rule where there has been a conviction for felony pending appeal, 3579-. excessive bail, 357^. reduction of bail, 357i. right of appeal from order, S57J. Custody of children — purpose of the writ not to recover possession, but to discharge from illegal restraint, 358. character of proceedings, 359. ordinarily the purpose is to determine which party is the most suit- able to have control of the child, 859. child necessarily need not be within the territorial jurisdiction, if wrong-doer is, 360. w^hether demand should first be made, 361. petitioner must affirmatively show his right, 362. order of the court; if the child of the age of discretion, it will free him from restraint, 362. if not, then he will be assigned to custody of proper custodian, 362. paramount right is in the father, 363. doctrine stated by the New Jersey court, 364. doctrine stated by the Michigan court, 365. doctrine generally is that the father's right is limited by the welfare of the child, 366. doctrine extends to cases where parent seeks custody of child from third persons, 367. the father may relinquish his right by contract, 367. he majr forfeit it by abandonment, 367. or lose it by being in a condition of total inability to afford it neces- sary care and support, 367. rule does not go to the extent that child can dictate his custodian, 368. writ generally discharged in cases of children of discretion, 368. rule carried to the extreme by the Wisconsin court, 368. fitness of the parties a question that is always open, 369. character and habits to be considered, 369. where both parties are of immoral character, court may select a third person, 369. surrender having been made by parents, the right to reclaim, 370. contracts surrendering children, validity of, 371. an agreement by the father of itself would not operate against the mother after the father's death, 871. some courts inclined to a more strict adherence to the rule that the father's right is paramount, 873. INDEX. 1155 References are to sections. HABEAS CORPUS (continued) — Custody of children (continued) — also tliat he may reclaim his child where former objections no longer statutes i)royiding for the placing of abandoned or destitute children m charitable mstitutions, effect of, 373. where parents not parties to the proceedings, they are not bound, 873. tne question that remains is the welfare of the child, 373. such statutes are not penal, 373. age of discretion to express a choice, 374. the question is one for the court, 374. Illegitimate children — * mother has paramount right, 375. father has against all but the mother, 375. in other respects the rule is practically the same as that which ap- plies to children that are legitimate, 375. Courts-martial — review of proceedings, 376. question of jurisdiction may be inquired into, 376. errors cannot be reviewed, 376. prisoner must be in restraint; mere moral restraint not sufladent, 376. ' they are courts of special and limited jurisdiction, 376. a valid enlistment is essential to jurisdiction, 376. recitals of jurisdictional facts must be affirmatively proved, 876. such proof may be controverted by extrinsic evidence, 876. enlistments in federal service; jurisdiction of federal courts exclu- sive, if party in custody of federal authorities, 377. Boards of health — persons restrained by direction of, 378. the right must clearly appear to be conferred by law, 378. the facts must be sufficient to warrant its exercise, 378. the facts will be reviewed, 378. Commissioners of immigration and other like bodies — their determination of facts not subject to review, 379. Application for the uirit by others than the party restrained, 380. Master may not, for his apprentice, 381. Sight of guardianship will not be tried, 382. Fugitives from justice — when a fugitive, 383. one not actually present in the state where crime committed is not, 383. jurisdiction of federal and state courts, 384. state courts do not proceed when it appears the petitioner is held under federal authority, 385. state courts not prohibited because federal rights or laws are involved, 386. the agent selected to convey a fugitive is not an officer of the United states, '387. nature and extent of the inquiry, 388. the court will examine the extradition papers to determine the law- fulness of the arrest, 388. the affidavit or indictment may be examined, 389. the affidavit; sufficiency of, 390. the allegations must be positive and direct, 390. sufficient must appear to show tribunal has jurisdiction to try the accused for the offense charged, 390. statement merely that a designated crime has been committed, ordi- narily not sufficient, 391. 1156 INDEX. References are to sections. HABEAS COEPUS (continued) — Fugitives from justice (continued) — otherwise as to murder, larceny, and the like, 390, 391. the indictment; suiBciency of; must charge a crime, 393. the court or officer may examine it, 392. matters of substance will only be examined, 392. test of suiSciency, 393. determination of the governor that the accused is a fugitive, how far conclusive, 394 whether governor acts judicially or ministerially, discussed, 394 the certificate authenticating the affidavit, how far conclusive, 395. the governor of the demanding state the only judge of the authen- ticity of the affidavit, 395. if it appear the affidavit was not made before the proper officer, the rule is otherwise. 395. the executive warrant, effect of, 396. prima facie evidence that precedent conditions have been complied with, 396. court may examine the preliminary documents, 396. where such papers are withheld by the governor, the court can only look at the executive warrant, 396. warrant need not state the facts constituting the crime, 396. copy of the indictment or affidavit need not accompany executive warrant, 396. this rule does not prevail in all jurisdictions, 396. in some jurisdictions the warrant must recite the facts, 396. whether act charged constitutes a crime in state where committed, how determined, 397. the fact that it appears that an indictment has been found is suf- ficient in some states, 397. in others, in absence of proof, the law of the demanding state will be considered the same as in the state where demand is made, 397. in others the statute provides that the printed statutes may be re- sorted to, 397. identity of alleged fugitive always open to inquiry, 398. guilt or innocence not a question of inquiry, 399. arrest prior to demand; an alleged fugitive may be arrested and de- tained a reasonable time, 400. must, however, stand charged with the crime in the state where committed, 400. ' , Illegal extradition — prosecution for another offense, 401. the rule under treaty stipulations with foreign countries, 401. rule where none such exist, 401. rule in the states, 401. the individual who is instrumental in obtaining extradition cannot take advantage to obtain civil reparation, 401. rule otherwise where accused has been brought within reach of pro- cess without legal authority, 401. fugitive under charge in state where found; the demands of its laws may first be satisfied, 402. rule different in California, where arrest is sought on civil process, 402. Foreign extradition — exists by force of treaty, not of comity, 403. if surrendered, the fact that the crime is not included in the treaty does not entitle to a discharge, 403. the determination of the judicial officer is not conclusive upon the president, 403. the granting of the executive warrant does not preclude inquiry after- wards, 403. INDEX. 1157 References are to sections. HABEAS CORPUS (continued) — Foreign extradition (continued) — congress alone has the power to determine what officers may hold ex- amination, 403. a commissioner simply as such has no such authority, 403. proceedings of commissioners subject to review, 404. extent of the inquiry, 404. federal statute, evidence under, 405. fugitive entitled to process at expense of the government. 406. proceedings before commissioners analogous to those before examin- mg magistrate, 407. complaint, sufficiency of, 408. HEIRS — whether a privy or stranger to proceedings in settlement of estate, •217,218,238,315. see Impeachment op Judgments by Stbangers. HIGHWAYS — proceedings of highway commissioners subieot to review by certiorari, 433,433a. doctrine in Massachusetts, Maine and New Hampshire, 433a. keeping in repair; duty enforced, 763. discretion as to manner not controlled, 763. removal of obstruction, 764. discretion not controlled, 764. opening of, may be compelled where duty not discretionary, 765. restoration of, by railroad companies, 613, 614, 814. crossings, maintenance of by such companies, 811. duty extends to highways established since construction of road, 814. sufficiency as to method determined by the court, 814. providing fund for payment of damages caused by opening, 769a. abandonment of proceedings, at what stage, 757, 769a. mandamus will not lie to compel opening, until damages ascertained and fund provided, 7696. nor when the result would authorize the commission of a trespass, 769&. right of appeal in some states supersedes mandamus, 769c. mandamus withheld, 769. mandamus will not lie to compel highway commission to complete proceedings after expiration of time, 585. payment of award of damages in laying out may be enforced by mandamus, 588. HUSBAND AND WIFE (see Witnesses; Contempt) — communications between husband and wife are ppvileged, 30471. they are matters which the law will not permit to be divulged, 306?i. the rule and the statute embrace- more than communications that are confidential, 306n. limited to such matters as occur during the existence of the mar- riage, 306». what is privileged then remains so, though that relation has ceased, 306n. in some states after death of one of the parties it is limited to private conversations, 306n. the Ohio statute, 306n. husband competent to testify to handwriting of wife, 306?i. in action against her parents for enticing her away, S06?i. letters from the wife also admissible, 306?i. statutes prohibiting disclosure without consent of parties, 306w. by common consent either may testify, 306n. communications made in known hearing of third pdrsons, 306?i. 1158 INDEX. Eef erenees are to sections. HUSBAND AND WIFE (continued) — rule in some states limited to strictly confidential communications, 306n. communications made to third party when no one else present, 306?i. communication by one in the presence of the other to third party, 306ji. when made in presence of young children, 306?i. statute merely forbidding confidential communications does not in- clude all communications, 306n. confidential communications defined, 306ra. statute not applicable in oases of personal injury to wife, 306n, nor in actions for divorce, 306n. nor in actions for necessaries furnished wife, 806?i. I. IMPEACHMENT OF JUDGMENTS (see Judgments, 108 et seq.) — distinction between void and voidable judgments, 136. by the record, 137. no presumption of other or different evidence than that appearing in the record, 137. except where fact of jurisdiction is adjudged, 138. subject explained, 139. Methods of impeachment — by proceedings in the action, 140. by direct attack in other proceedings, 140. by collateral attack, 140. definition of direct and collateral attack, 141. Action in equity — equity will not assume jurisdiction where there is an adequate rem- edy at law, 148. rule does not apply in cases of accident, fraud or mistake, 142, 155. nor where the court was without jurisdiction of the person, 143. recitals of service or appearance may be shown by extrinsic evidence to be untrue, 145. in cases of personal judgment where service by publication, it may be shown that defendant was a non-resident, 145. return of the ofScer cannot be contradicted, 147. grounds for relief enumerated, 148. appearance by unauthorized attorney, 149. distinction between unauthorized appearance and one falsely en- tered, 149. whether bill must show attorney insolvent, 149. equitable defense not available at law, or legal defense prevented by fraud or accident, 150. accident or surprise, 151. mistake, 153. newly-discovered evidence, 158. party must show he was free from negligence, 153. grounds arising subsequent to trial, 154. payment, release or satisfaction of the judgment, 154. equity will relieve against a fraudulent or corrupt use of a judgment, 156. character of the fraud in such cases, 157. rule applies though there may be an adequate remedy at law, 158. fraud in any case is ground for equitable relief, 158. fraud in procuring evidence of jurisdiction, 160. fraud upon the court or tribunal, 161. fraud preventing a partj^ from fully exhibiting his case, 163. fraud in procuring service of process, 164. matters involved m the issue; errors of law, 165. INDEX. 1159 References are to sections. IMPEACHMENT OF JUDGMENTS (continued)"— Collateral attach — Domestie judgments — rule in the code states, 167-176. rule in Iowa, 167. rule in Wisconsin, Indiana, Kansas, Missouri, Illinois, Pennsylvania and Ohio, 168. rule in California, 168. rule in Maryland, 170. rule in Massachusetts, 171. effect of federal decisions, 171. rule in other states, 171-176. judgments entered by agreement cannot be collaterally attacked on ground that such agreement was corrupt and unlawful, 173. collateral attack upon judgments of courts of limited jurisdiction, 173. extrinsic evidence to sustain or defeat, 173. record must show jurisdiction obtained, 173. then the judgment becomes prima facie evidence, 173. jurisdiction cannot be sustained by extrinsic evidence, 174 jurisdictional facts which are not required to be in writing or en- tered in the record may be proved by parol, 174 extrinsic evidence, when permissible to show lack of jurisdiction, 175. impeaching records and recitals, 176. by extrinsic evidence, 176. distinction between determination of existence of facts and mere de- cision that jurisdiction is acquired, 177. recital not in accord with the evidence in the record not conclusive, 178. statement of facts upon which jurisdiction depends may be refuted, 179. impeachment of return of service, 179. some courts hold that the return is conclusive, 179. others hold the contrary, 180. distinction between courts of general jurisdiction and of limited juris- diction, 180. return that a person served was the agent of a corporation may be refuted, 181. recital that a party had been served may be disproved, 181. distinction between void notice and defective notice, 182. in the former, judgment void and may be attacked collaterally, 183. docket entries in justices' courts, how far conclusive, 183. judgment relied iipon as evidence cannot be attacked by extrinsic evidence, 184 ■ entire record may be resorted to, to show judgment void upon its face, 185. rule extracted from the decisions, 186. Fraud — to what extent it may be shown, 187. Judgments of sister states — originally considered as foreign judgments, 188. constitutional provision and act of congress relating to the faith and credit to be given them, 188. such provisions do not relate to judgments rendered without juris- diction, 189. nor prohibit the states to exercise authority over the person or sub- ject-matter. 189. facts essential to jurisdiction may be contradicted, 198. though recited as existing in the record, 190-194 such judgments entitled to full faith and credit to the extent only of jurisdiction acquired. 191. personal judgment against a non-resident not personally served may be collaterally attacked at any time, 191. 1160 INDEX. Beferences are to sections, IMPEACHMENT OF JUDGMENTS (continued) — Judgments of sister states (continued) — the proper plea, however, is nul tiel record, not nil debet, 191. doctrine illustrated, 193. return of the officer may be contradicted, 195. exceptional case in Massachusetts, where it was held that the full faith and credit applied only to judgment upon the facts, not the law, 196. United States supreme court contra, 197. a decree adjudging a corporation bankrupt is in the nature of a de- cree in rem with respect to its status, 197. judgments can be impeached in another court for errors of law or practice, 197. judgments entirely at variance with acknowledged principles of law may be presumed to have been obtained by fraud, 198. Judgments in personam — are prima facie a verity, where want of jurisdiction does not affirm- atively appear upon the record, 199. effect of substituted service, 200. service not personal and no appearance, suit cannot be maintained on judgment, 300. jiidgment so obtained does not constitute a bar to another action on same demand, 200. doctrine announced by the Wisconsin court, 200. fraud ; when it may be shown and its effect, 203. rule in the federal court, 203. rule in the state courts not uniform, 203. Foreign judgments — rule stated by the United States supreme court, 204 comity of nations; its influence upon the rule, 205. rule in some of the state courts, 206. that such judgments are conclusive upon the merits, 306. in others that they ai-e prima facie evidence of indebtedness, 306. qviestion of jurisdiction always open, 307. such judgments impeachable for mistake, 308. and for fraud, 210. not impeachable for errors of law, 309. Foreign judgments in rem, — conclusive upon the merits, 311. affecting the status of persons, conclusive everywhere, 211. Impeachment of judgments in rem (see Judgments in Rem, 313 et seq.). Impeachment by strangers — parties and privies defined, 333. third persons, when they may impeach judgments, 333. for want of jurisdiction in a collateral proceeding, S33. for fraud a,nd collusion pi-actioed in procuring it, 333-336. the fraud must have been participated in by the plaintiff in the suit, 336. or if property has been sold by the vendor, 336. for errors or defects in the proceedings which render the judgment erroneous, 233. right only applies to strangers prejudiced by the judgment, 233. judgments not ordinarily admissible in evidence for or against a stranger, 234. they are admissible for certain purposes, such as proving the fact of rendition, 334. showing a claim of title, 334. character and extent of possession, 334. to prove the existence of a collateral fact, 334 INDEX. 1161 References are to sections. IMPEACHMENT OF JUDGMENTS (continued) - Impeachment hy strangers (continued) — they import verity when introduced to establish link in chain of title, a judgment may be introduced as showing a solemn admission of a fact, 334 but not as evidence establishing the fact. 234. creditors may show there was in fact no debt, is the doctrine of some courts, 337. whether it may be shown that the judgment is excessive, courts not agreed, 237. if the excess was the result of fraud it may be impeached, 237. when a privy or stranger; incidents, 238. Heirs — some conflict whether a privy or stranger, 215, 317, 218, 238. they are bound by a judgment against the testator or intestate, 238. and are entitled to the benefits of one in his favor, 238. Sureties — some conflict whether a privy or stranger, 289. some courts hold that the judgment against the principal is prima facie evidence, 239. the judgment may be prima facie evidence of the liability of the surety, and conclusive upon the fact of breach of the bond, 340. what may be shown in defense, 240. in California sureties may appeal, 340. other courts hold that such judgments are conclusive, 341. that they can be impeached only for fraud, 241. this rule applied to ofBcial bonds, 341. there may be a distinction between bonds that are joint and those several only, 341. there are other courts which hold that such judgments are no evi- dence at all against the surety, 343. the indemnifled may throw upon the indenmitors the burden of the primary litigation, 342. distinction recognized between an undertaking general in its terms. and one where the principal is to do a specific act to be determined in a given way, 243. An the latter class sureties are bound, 343. Administrators' bonds — distinct in character from oflScial bonds, 344. sureties are bound by judgments against principal, 243. this distinction not recognized in all jurisdictions, 344. where the condition is to be bound by the result of litigation, the judgment conclusive, 344 Bonds of indemnity — judgment only prima facie evidence, 34-5. Bail; injunctions; appeal and replevin bonds — sureties are concluded by the judgment against the principal, 346. JReceivers' bonds — are prima fade evidence against the surety, 247. judgments against the principal are impeachable by the sureties for fraud or collusion in procuring them in all cases, 348. failure of jurisdiction may always be shown, 349. Assignees and vendees — ' they are generally privies in estate, 250. a judgment against an assignee is binding upon the creditors, 350. may be impeached for fraud or collusion, 250. 1162 INDEX. References are to sections. IMPEACHMENT OF JUDGMENTS (continued) — Bailees — are in general bound by judgments against the bailor, 351. bailor not bound by judgment against bailee, 351. otherwise, if he defend the action, 351. Executors and administrators — are bound to the extent they succeed to the property rights of de- ceased, 353. Oarnishees and garnishors — defendant in an action bound by judgment against garnishees, 353. not binding on other creditors, 353. whether the judgment itself operates as a bar, courts not agreed, 358. are bound by judgments against their lessor, where lease is subse- quent, 354. Officers and their successors — judgments affecting rights and privileges of the office are binding, 355. Parties not of record — are bound when the action is prosecuted in their behalf, 356. ordinarily this result only follows when they have the right to con- trol the proceedings and of appeal, 356. that they were the real parties in interest may be shown by parol, 356. Stockholders — judgment against corporation conclusive upon stockholders, 357. may be impeached for fraud, collusion and sometimes mistake, 357. the reason upon which the rule is founded, 357. cannot sue unless directors refuse to act, 357. demand not essential where the officers are guilty of the wrong com- plained of, 357. judgments against the corporations obtained by fraud cannot be im- peached collaterally, 357. the stockholders are parties, 357. Trustees and cestui que trust — cestui que ti-ust ordinarily bound by judgment against trustees, 358. not where the judgment is against the trustee individually, 358. or where he did not represent the cestui que trust, 358. Defendants in chancery — adverse interests between co-defendants may be passed upon; they are conclusive, 359. INDICTMENTS — suffioienojr of, a question of law, 13, 14, 331, 439. improper joinder of distinct offenses, 333. presentment by, constitutional requirement, 31. change of, by the court, invalidates, 31. separate and distinct oJf enses charged ; eflfeot, 36, note. same act may be charged in different ways, 36, note. persons sentenced without, will be discharged on habeas corpus, 333. state may provide for punishment by information, 333. indictment cannot be amended, 334 informations may be amended, 334. grand jury; competency of, not open in habeas corpus, 333. insufficiency of indictment will not authorize discharge on habeas corpus, 333. nor will prohibition lie, 457, 458. party subject to indictment does not supersede mandamus, 584. mandamus lies to compel court to proceed where indictment quashed for supposed want of jurisdiction, 597. INDEX. 1163 Eeterences are to sections. INFERIOR COURTS AND COURTS OF LIMITED JURISDICTION— presumptions which attach with respect to jurisdiction, 121. in what manner want of jurisdiction may be shown, 133. circuit and district courts of the United States are courts of limited, but not of inferior, jurisdiction, 133. same effect given to their records as is given to courts of general juris- diction, 133. ^ •" state courts ; certain, whether inferior or of limited jurisdiction, 134 some courts make the test whether or not they are courts of record, 134. probate courts; their status in this respect not the same in all juris- dictions, 135. in the exercise of their general powers, after jurisdiction acquired, same presumption as attaches to courts of general jurisdiction, 136. record must affirmatively show compliance with statutory powers respecting sale of decedents' estates, 136. jurisdictional facts ascertained, record conclusive, 137. County courts — are of limited jurisdiction when not exercising probate powers; the rule as to presumptions is the same as attaches to courts of general jurisdiction, 128. INFERIOR COURTS PROPER — 1. Statutory courts. 3. Courts of justice of the peace. record must affirmatively show compliance with statutory require- ments, 129. same rule applies to other tribunals exercising judicial powers, though not strictly courts of justice, 139. such tribunals have the power, where jurisdiction depends upon cer- tain facts, to determine it, 139. where it depends upon allegations in a petition the statutory require- ments must appear therein, 139. essential facts conferring jurisdiction must appear, 130. record of common council must affirmatively show requisite number of votes, 130. effect of record with respect to subsequent proceedings, 131. the general rule does not extend to every technical defect, 133. yet where the statute requires an entry and none appears, there is no presumption that the step was taken, 133. mandamus addressed to, see Mandamus, 593 et seq. justice may enter time and place of adjournment, 133. record must show service of summons, 133. and entry of judgment immediately upon receipt of verdict, 133. parol proof is inadmissible to vary or explain docket, 134 judgment docketed in superior court possesses elements of a judg- ment of such court, 135. justices' judgments are not within the act of congress providing for certification, 185. they are, however, within the constitutional provision, 135. INFORMATIONS (see Indictment). INJUSTICE (see Equity). INSANITY -r person acquitted of an oflfense on ground of, cannot have reviewed upon habeas corpus commitment to an asylum connected with a prison, 15. INSPECTION OF BOOKS AND PAPERS (see Books and Papees). INSPECTORS OF ELECTION (see Boards of Cantassees; Elections> 11 6 J: INDEX. References are to sections. J. JEOPARDY (see Former Jeopardy). JUDGES AND OFFICERS EXERCISING JUDICIAL POWER, LIA- BILITY OF — rule with respect to judges of superior courts, 896. there must be an absence of all jurisdiction over the subject-matter, 897. distinction between lack of jurisdiction and error, 898. where warrant and indictment fail to charge an offense, 899. exemption only applies to judicial acts, 901. rule with respect to judges of inferior courts, 903. reasons given for distinction between judges of superior and those of inferior courts, 903. doctrine of the New York court, 904. when warrant does not charge the offense, 905. where proceeding under a law in fact unconstitutional, 906. where justice has mistaken the law, 907. rule with respect to officers exercising judicial powers, 908. when malice or corruption is charged, 909. rule with respect to election officers, 910. exception to the rule as recognized in some states, 911. jurisdiction of officers, 912. malice; character and extent of proof of, 913. When disqualified, proceedings (see Maudamus) — duties of, with respect to bills of exceptions, see Bills op Excep- tions. JUDGMENT (see Impeachment op Judgments, 136 et seq.) — distinction between, and jurisdiction, 6, 318, 348, 428, 454 et seq. error of, does not affect question of jurisdiction, 13. JUDGMENTS — classification of, 108. Domestic judgments of superior courts — pi-esumption is in ifavor of their jurisdiction, 109. this presumption only arises with respect to jurisdictional facts where the record is silent, 109. limited to jurisdiction over persons within their territorial limits, 109, 111. and over proceedings which are in accordance with the common law, 109. exception where judgment is taken pro confesso. 111. also where entire i-ecord discloses no service of process or no jurisdic- tion, 111. Superior courts in the exercise of special jurisdiction — record silent, presumption against the jurisdiction, 113, 113. when the special powers conferred are brought into action according to the course of the common law, the presumption is in favor of the jurisdiction, 113. where the powers are exercised over a class not within their ordinary jurisdiction, upon performance of prescribed conditions the pre- sumption is against the jurisdiction, 113. the facts essential to the exercise of jurisdiction must appear upon the record, 113. mode prescribed must be pursued, 113-116. doctrine of the California court, 114. proceedings subsequent to those required in obtaining jurisdiction; presumptions, 115. rule in the federal courts, 116. rule in the state courts, 117. INDEX. ' , 1165 References are to sections. JUDGMENTS (continued) — Summary proceedings in courts of general junsdietion, 118. summary proceedings defined. 118. record must show proceedings were in strict conformity to the stat- ute, 118. subjects and proceedings that are summary, 119. insolvency, 119. condemnation of land, 119. contested election oases, 119. statutory proceedings to recover compensation for flowage of lands, 119. sale of lands for non-payment of taxes, 119. distinction between special powers conferred and general powers ex- tended, 130. ^ f extending jurisdiction over foreclosure of tax deeds, not special, 130. same with respect to mechanic's lien, 130. attachment proceeding is merely auxiliary to other proceedings, 131. not a bar to subsequent proceedings by a prior mortgagee, though made a party, 8. nor a bar to a suit to recover dower where widow h9,d not signed mortgage, 9. nor a bar to one claiming under a paramount title, such title not being in issue, 9. authority must exist to render the particular judgment, 34 judgments in excess of that prescribed by law, 34 et seq. see Impeachment of Judgments; Habeas Corpus. judgments of inferior courts and courts of limited jurisdiction, see Inferior Courts. impeachment of judgments, see Impeachment of Judgments. judgments of sister states, see Impeachment of Judgments. foreign judgments, see. Impeachment of Judgments. probate judgments, see Probate Court. entry of judgment may be compelled by mandamus, 601. enforcement of, see Mandamus, 603 et seq. Judgments in rem — ^ defined; effect of, 318. the property is itself in such actions the defendant, 313. the judgment is conclusive not only upon the parties, but all others, 313. jurisdiction is acquired by seizure of the property, 30, 313. ^asi action in rem — distinction between such proceedings and those strictly in rem, 313- 216. the interest of the defendant alone is sought to be affected, 313. the judgment is only conclusive be^tween the parties, 313. the res must be actually or constructively seized, 30. appearance svdll not confer jurisdiction of the res, 55. Wills, probate of — a judgment in rem, 314. Executors, administrators and guardians — settlement of their accounts is a proceeding in rem, 315. the settlement is conclusive upon every subject adjudicated, 315. Probate judgments — possess some of the elements of judgments in rem, 316. want of jurisdiction may be shown, 316. they determine title only against those who claim under the deceased, 316. the decisions of the federal court are not to the contrary, 217. such decisions discussed and explained, 317. in many states deeds so authorized are ma,Ae prima facie evidence of title. 217. ^ „„ sometimes notice is essential to jurisdiction, sometimes not, 318. 1166 INDEX. Eeferenees are to sections. JUDGMENTS (continued) — Probate judgments f continued) — where not essential, the appearance or non-appearance does not affect tlie manner of procedure, 218. the Wisconsin court holds that notice of the assignment of property under probate of will is essential to jurisdiction, 318. that questions relating to the validity of the will could be deter- mined in an action of ejectment brought by the heir, 218. decisions of courts of other states contra, 218. that the petition gives the court jurisdiction and the proceeding is against the title, 218, Ejectment, actions of — they are actions in rem to the extent that the subject-matter is not a personal demand, 219. the judgment has no force as to strangers, 219. thev are personal actions, having for the subject-matter real prop- erty, 319. Attachment and replevin — the doctrine is the same as stated with respect to actions of eject- ment, 220. in attachment, seizure of the property, either actual or constructive, essential to jurisdiction, 220. personal appearance or service not essential, 230. without personal service or appearance personal judgment cannot be rendei-ed, 330. court cannot proceed unless the officer finds some property upon which to levy the writ, 381. substituted service, effect of, 332. rule recognized by the Wisconsin court, 338. the affidavit in state courts for attachment must contain the essen- tials required by statute, 324 effect of proceedings in attachment upon the property, 225. operates only upon the interest of the debtor, 225. officer obtains a special interest and may maintain trover or trespass, 225. sold as perishable, conclusive upon all the world, 225. the lien is transferred to the purchase-money, 225. the writ protects the officer, 225. Partition — proceedings not strictly in rem, 231. there can be no personal judgment in absence of personal service or appearance, 231. GarnishTnent proceedings — are within the rules of attachment, 326. distinction is, that garnishment reaches property that cannot be seized on attachment, 236. rights of third persons to the property are not affected, 336. Other proceedings — property seized upon attachment or execution issued out of one court not subject to replevin in another, 838. it is considered in custody of the court, 328. remedy of party where property has been wrongfully taken, 229. judgments in admiralty and those condemning land are strictly in rem, 330. actions to enforce mechanics' and laborers' liens are only in the nat- ure of proceedings in rem, 331. they affect the property, but are not conclusive upon strangers, 331. actions to foreclose mortgages are of the same character, 313. no personal judgment can be had in absence of personal service or appearance, 313. see DivoECE and Alimony. INDEX. 116T References are to sections. JUDGMENTS (continued) — Failure to publish notice — failure to publish notice when required, 333. in federal courts, it does not affect the question of jurisdiction, 333, nor does failure to publish summons, 333. in state courts quite generally such failure is fatal to jurisdiction, 334^ Mandamus, when will lie — mandamus proper remedy to provide for payment of judgments against municipal corporations, 736. cannot be compelled to levy in excess of maximum allowed by law, 737. mandamus will not lie to compel payment of, when fund has been diverted, 585. writ not granted pending appeal from judgment, 746. mandamus does not lie to enforce in New England states, 746, note, m-andamu^ lies from the federal courts, 747. the proper remedy to compel entry of judgments, 601 et seq[. will is&'ue where court not erroneously but without authority grants a new trial, 601. where verdict in due form has not been set aside for cause, 601. not where the court is satisfied, upon proof, that the verdict was ob- tained by perjury, 601. nor wliei'e the court has required a remittitur in part, 601. mandamus proper remedy when not euforcible by execution, 603. will not lie where execution has been stayed by irregular order, 603, JUDICIAL ACTS OF INFERIOR TRIBUNALS, 433a et seq. see Ceetioeaei; Mandamus; Liability of Judicial Officers. JURISDICTION — requisites of, 1 et seq. the subject defined, 4. of the person, defined, 5. distinction between, and judgment, 6, 348, 898. jurisdiction of the subject-matter must be actually obtained, 7. not sufficient that the subject-matter is within the jurisdiction of the court, 7. , j. j. -i. i -ii, proceedings that cannot be perfected by amendment, tribunal with- out jurisdiction, 7. j. ±. ^■ defect of, appearing of record, can be taken advantage of at any time and in any court, 10. court is without jurisdiction to probate a will not signed, 10. or to probate papers attached to a will, 10. reasoning leading to such conclusion questioned, 10, note. . amendment stating new cause of action deprives the court of juris- diotion in the absence of a new service, 11. jurisdiction must be invoked as to the particular subject, 1^. wrong decision but error; does not affect the question of jurisdic- tion, 13. „ ,. „. ... indictment or pleading; sufficiency of, a question of law, 14. unconstitutional law; effect of upon jurisdiction, 15. proceedings under, are void, 15. , • ■, . j i, j j. commitment for contempt, in absence of order adjudging defendant guilty, is void, 15. . ^„ former" jeopardy; effect upon jurisdiction, 17. see Habeas Corpus; Former Jeopardy. _ . . ,. ■, i„ indeterminate sentences; effect where law authorizing is invalid, 19. law valid in part only, effect, 30. , , .■, i-j-j. e the mere fact that the court has the power to decide upon validity ot a law is no certain test of its jurisdiction, 30. proceedings must be in conformity to constitutional methods, ii. 1168 IXDEX. References are to sections. JURISDICTIO>f (continued) — trial without jury, waiver of right, 21. presentment by indictment, mandatory, 21. change in indictment after return deprives court of jurisdiction, 21. Jurisdiction of the person — in personal actions there must be personal service or voluntary ap- pearance, 30, 367. such only is due process of law, 30. in actions quasi in rem, where res is seized, substituted service may be sufficient to give jurisdiction of the res, 80. presumption in favor of jurisdiction in superior courts. 109. this presumption only applies when record is silent, 109. and when proceeding according to course of the common law, 109. exception where record discloses defendant lived beyond territorial limits. 111. also where judgment taken pro confesso, 111. also where entire record discloses no service of process or no jurisdic- tion acquired, 111. superior courts in the exercise of special powers, 112. record silent, presumption against the jurisdiction, where the special powers are exercised in a special manner, 113. 113. otherwise where the special powers aie brought into action according to the course of the common law, 113. special mode prescribed must appear to have been pursued, 118. doctrine of the California court, 114 service of process, see Process. jurisdiction, judgments in rem, see Judgments m Rem. consent as affecting question of jurisdiction, see Consent. juri diction in appeals, see Appeals. change of venue, see Venue, Change op. concurrent jurisdiction, see Concurrent Jubisdioxion. criminal jurisdiction of federal courts, see Federal Courts; Con- current Jurisdiction. jurisdiction of the separate departments of government over each other, 107&, note, impeachment of judgments for lack of jurisdiction, see Impeach- ment OP Judgments; Judgments op Sister States; Judgments; Foreign Judgments. jurisdiction, excess of; rule, 33. . procedure must conform to legal methods, 38. authority to render the particular judgment must exist, 34 sentence of fine and imiirisonment where law provides for fine or im- prisonment is in excess of the jurisdiction, 24 sentence unauthorized is void, 24, 25. Wisconsin case, 24 note. cumulative sentence ; void as to excess, 26. separate and distinct offenses charged in one indictment, effect, 26, note. cumulative sentences are valid in some states, 26. no trial for two distinct offenses at same time, effect, 37. judgment in excess of that presci'ibed by law, 28. sentence for longer term than prescribed, merely error, 28. New York court remanded for proper sentence, 38. distinction recognized between an excess in degree and a judgment una\ithorized, 39. prohibition will lie to restrain, 450. see Prohibition. justices' courts, see Inferior Courts and Courts op Limited Juris- diction ; Justices' Courts. mandamus lies to compel courts to assume, see Mandamus, 593 et seq. INDEX. 1169 Eeferences are to sections. JURORS AND JURY — trial by, waiver of, 31. see Consent; Waiver. trial by; right to, in quo warranto, 531. grand jurors; privileged, 306/'. legality of, may be tested in Calif omia by prohibition, 479. petit jurors; privileged, 306^. competency of grand jury not open to inquiry upon habeas corpus, JUSTICES' COURTS — Certiorari — writ only reaches jurisdictional defects, 437, 431. immaterial that there may also exist a right of appeal, 437. remedy by appeal and certiorari concurrent in some cases, 437, void proceedings; when writ will lie, 438. writ will not lie to review the merits, 436. evidence not reviewed upon common-law writ, 436&. departures from the rule, 4366. statutes; several states, 434c et seq. writ lies only after judgment, 440. the return, 444&. the judgment, 444d et seq. conclusive effect of, 444/i. costs, question of, 444i. review of judgment by appellate court, 44^. docket entries cannot be impeached, 183. return of service controls docket entry, 183. whole record considered, 183. rule in several states, 183. Mandamus — courts may be compelled to proceed and determine matters within their jurisdiction, 638. to proceed with the examination of persons charged with crime, 638. to entertain a complaint for embezzlement, 638. to enter judgment when the proceedings have reached that stage that such duty is ministerial, 638. to make entries in docket according to the facts, 638. but not to change entries once made, 628. to certify the record of transcript, 638. to issue execution upon judgment, 638. not to vacate a judgment, 638. discretion of justice will not be controlled, 638. purpose bf the writ to put the court in motion, 563. and enforce performance of ministerial duties, 563, 573. discretion of the court not controlled, 573. ministerial acts defined, 573. ■Jurisdiction — record must affirmatively show compliance with statutory require- ments, 129. essential facts conferring jurisdiction must appear, 130, 183. effect of record of subsequent proceedings, 131. presumptions, 131. in some states they are considered as courts of record, 131. the general rule does not apply to every technical defect, 133, 174. where statutes require an entry, and none appears, no presumption that step was taken, 133. time and place to which a cause is adjourned must appear, 183. record must show service of summons, 133. judgment must be entered immediately upon receipt of verdict, 133. extrinsic evidence cannot be received to sustain, 174. 74 1170 INDEX. References are to sections. JUSTICES' COURTS (continued) — Jurisdiction (continued) — extrinsic evidence to impeach, 175. record and recitals may be impeached, 176, 180. decision of court with respect to jurisdiction, 177 et seq. statement of facts upon which jurisdiction depends may be refuted, 179. docket entries cannot be contradicted, 183. docket entries not controlled by extrinsic evidence, 134 effect of such a judgment when docketed in a superior court, 185. L. LAJSTD OFFICERS — mandamus does not lie to compel register of land ofiBce to grant final certificate of purchase, 680. issue patent where the act has become merely ministerial, 640. not where discretion is yet to be exercised, 641. nor where signature of president is wanting, 640. LEGISLATIVE BODIES — power to punish for contempt, 309 et seq. LESSEES — are bound by judgments against their lessor where judgment is sub- sequent to lease, 254. LICENSES (see Mandamus)— duty in respect to granting, 770. discretion not controlled, 770. arbitrary or illegal ground of refusal may justify mandamus, 770. authorities may be compelled to revoke, 770. rule applies to ferry license, 770. duties in some jurisdictions held judicial, 832a. in others contra, 332a. when and where certiorari will lie, 332a. LIENS — in actions to enforce, appearance will not confer jurisdiction over the res, 55, 120. see Mechanics' Liens; Loo-driting Companies; Mand^^mus, 845. LIMITATION OF INDEBTEDNESS — construction of laws, 887. LOWEST BIDDER (see Contracts). M. MANDAMUS — Character and origin of the ancient writ, 561. the modern writ in the United States an ordinary proceeding or action at law, 563. Office of the writ — to compel that to be done which is a duty, 563. it confers no new authority, 563. the party must have the power to perform the act, 563. the duty where specific act required must be ministerial, 563. there must be an absence of another remedy which is adequate, 563, it is not a preventive writ, 563. its purpose in part is to put inferior tribunals or officers in motion, 563. not to rectify errors, 563. " INDEX. 1171 References are to sections. MANDAMUS (continued) — The relator — who may be, 564. private individuals may be, where private rights involved, 564 where public rights are involved, rule, 564. '°^?^°!L^"'''®'^^°*^°°^ '"^ private person having an interest may be, 5o4, 565. J > rule in federal courts, 566. where private interests involved, right of relator must clearly ap- Discretion exercised in allowing the writ, 568. discretion not absolute or arbitrary, 568. must be exercised in conformity to and may be regulated by rules of law, 568. discretion only extends to writs in aid of private rights, is the doc- trine of the Wisconsin court, 568. extent of the rule; laches, 569. exceptions to the rule, 570. a clear legal right cannot be denied where there is no other remedy, 571. Discretion of the officer or tribunal not controlled, 573. such duties only as are ministerial are directed, 572. such as are imposed by law, 573. not those imposed by contract, 573. ministerial acts defined, 573. abuse of discretion, when controlled, 573. where exercised with manifest injustice, 574. whether writ will be granted in anticipation of a defect of duty or error of conduct; the I'ight denied in some courts, 575. in others it is held courts exercise a discretion, 575, 576. Writ only lies where there is no adequate remedy — rule illustrated, 578. existence of a remedy in equity, 579. by legal remedy is meant a remedy at law, 579. tliough redress may be had in chancery, not conclusive against the writ, 579. it may operate upon the exercise of discretion, 579. adequate remedy, what the term includes, 580. the remedy must be competent to afford relief upon the very subject, 580. action for damages ordinarily not, 581. it will not compel the doing of the specific act, 581. replevin is not a proper proceeding to recover bonds or papers de- posited with a public officer, 581. mandamus is the only safe process, 581. remedy by appeal or writ of error ordinarily precludes mandamus, 583. writ does not lie against board of school directors where there is right of appeal, 583, note. will issue to compel them to carrv out vote of electors though appeal lies, 583. will not issue to compel clerk to issue execution. 583, note. nor to compel vacation of order granting costs, 583, note. nor to compel allowance of certiorari against highway commission- ers, 583, note. nor to compel judge to suppress a deposition, 583, note. nor to cornpel appointment of commissioners to lay ofif dower, 583, note, nor the allowance of a contingent claim, 583, note, nor to compel vacation of injunction, 583, note. 1172 INDEX. References are to sections. MANDAMUS (continued) — Writ only lies where there is no adequate remedy (continued) — nor to compel admitting of will to probate, where refusal placed on ground that the testator was a non-resident, 582, note. nor to vacate an order admitting will to probate, 5a3, note. nor to review action of a judge in discharging prisoner on habeas corpus, 583, note. writ may issue to compel federal court to remand, where it unlaw- fully assumes jurisdiction, 583, note. remedy by proceeding in quo warranto precludes mandamus, 583. Indictment; party subject to, does not supersede mandamus, 584. Useless or unlawful acts — writ does not lie to compel, 585. nor the doing of that which it is not within the power of the party to do, 585. will not lie to compel a treasurer to pay a judgment when the fund has been diverted, 585. nor to compel highway commissioners to complete proceedings after expiration of time, 585. . nor to compel raili-oad company to transport beer in a state where prohibited, 586. nor to compel a treasurer to pay money when prohibited by injunc- tion, 586. nor to compel municipal authorities to levy special assessments after time, elapsed, 586. writ will lie to compel railroad company to restore highway, though it may involve the necessity of condemning land, 586. Proceedings pending in chancery; eflEeot of, 587. if the precise relief is open for determination, writ will be refused, 587. otherwise if the decree would not settle the controversy or only be final between the parties, 587. legal remedy must be prompt, otherwise not adequate, 588. writ may issue to compel payment of award of damages in laying out highway. 588. and will lie where there is failure of positive duty, without discretion, 589. clear right of relator must appear, 590. the rule goes to the extent that the peremptory writ will not issue to enforce a doubtful right, 590. the j)rincipal office of the writ is to command and execute, not to in- quire and investigate, 590. the writ lies in many cases where the right is disputed, and where the ultimate right depends upon questions of law, 591. or where the law and facts have been determined upon the alterna- tive writ, 591. Mandamus to inferior courts — nature and extent of the remedy, 593. ordinarily compels judicial action; does not review it, 593. cannot direct the manner the inferior court shall exercise its powers, 593. * simply compels it to act, 593. in such oases it is immaterial that another remedy exists, 593. distinction where writ is directed to inferior courts and where , directed to officers or to bodies exercising judicial functions, 593. in the former it merely directs action, 593. in the latter it directs the act to be done or manner of procedure, 593. courts may be compelled to assume jurisdiction, 594. iTjle in federal courts, 595. court having jurisdiction, but dismissing case for supposed want of, may be compelled to proceed, 595, 596. INDEX. 1173 References axe to sections. MANDAMUS (continued) — Mandamus to inferior courts (continued) — rule in state courts, 597. writ lies to compel courts to exercise jurisdiction where they have erroneously refused, 597, 598. writ has been used to compel a court to proceed where it had quashed an indictment for supposed want of jurisdiction, 597. also to receive a complaint in embezzlement, 597. and to hear and determine a complaint for contempt, 598. and to restore a case improperly stricken from the calendar, 598. and to proceed where it refused on the ground of supposed disqualifi- cation, 598. and to reinstate an appeal, 599. questions preliminary to a hearing upon the merits, 599. writ will lie to compel court to assume jurisdiction where it has re- fused, 599. subject discussed, 599, 600. Judgments, entry of — may be compelled where court not erroneously, but without au- thority, has granted a new trial, 601. and when verdict is in due form and has not been set aside for cause, 601. not where the court is satisfied upon proof that the verdict was ob- tained by perjury, 601. nor where the court has required a remitter in part, 601. Judgments, enforcement of — mandamus the proper remedy when not enforcible by execution, 603. judgment of court determining duty of commissioners of highways to lay out highway, writ will issue to enforce, 603. writ will not lie where execution has been stayed though by irregular order, 603. where a court refuses to issue an execution, such being its duty, writ will issue, 603. Appeal, dismissal of — writ will lie to compel reinstatement where dismissed for supposed want of jurisdiction, 598, 604 it must appear relator has a clear right to the appeal, 604 and that the order or judgment is appealable, 604 Continuance; granting or refusing — ordinarily within the discretion of the court, and the writ wiU not lie, 605. Supersedeas; granting or refusing — writ lies to compel the granting of, in a proper case, 606. and to compel vacation of, when granted without authority of law, 606. Change of venue — ordinarily writ will not lie to compel, 607, 608. writ will lie to compel judge interested to transmit the case to an- other court, 608. Dismissal of causes; vacation of orders — writ will not lie to review what has been done, 609. will not compel vacating of order staying proceeding, 609. or granting a new trial, 609. or dismissing an action, 609. or made in a chancery suit entered by consent, 609. or ordering a special election under a local-option law, 609. or suspending an attorney, 609. or admitting a will to probate, 609. ... , court cannot be compelled to reverse its decision in a case once de- termined, 609. 11 74 INDEX. References are to sections. MANDAMUS (continued) — Setting aside service of process — writ will lie where service made while party was in attendance upon court, 610. »i J- also where party was re-arrested before he could leave place after dis- charge from first arrest, 610. Injunctions; granting or dissolving — writ will not issue to vacate order, 611. rule otherwise in some courts, 611. other orders; granting or vacating, 6116. Bills of exceptions; compelling signing of — mandamus the proper remedy where judge improperly refuses, 612. proper practice, 612. the mere act of signing is ministerial and may be compelled, 613. the discretion of the judge in determining what are the facts cannot be controlled, 618. upon the return of the alternative writ the judge must disclose cause of refusal, 615. if the proposed bill is incorrect, must state defect, 615. judge may be compelled to insert aU the evidence, 615. questions of mistake, surprise or excusable neglect in not reasonably presenting bill will not be considered, 615. writ lies to referees where duty imposed, 616. bills of exceptions in chancery courts, 617. alteration of bill by judge ; has no power after it is signed and filed, 618. mandamus will not lie to compel him to restore, 618. it is his individual act and of no force, 618. laches in making application; question of, discussed, 619. time extended; there can be no laches within that time, 619. if judge absent from the state when time expires, party has a rea- sonable time after his return, 619. stipulation; extending time cannot affect discretion of judge, 619. signing after expiration of term, 620. rule not uniform in several states, 620. rule in some states is that retiring judge shall sign, 620. in others his successor, 620. whether mandamus will lie to the retiring judge, in doubt, 630. it lies in Wisconsin by statute, 620. writ lies to all officers upon whom duty is imposed, 621. will not lie to compel, on behalf of a prisoner who has escaped, 622. superior court allowing an alternative writ may revoke it, 623. Attorneys — writ will not lie to compel admission of, where court exercises dis- cretion, 624. will lie where examination is arbitrarily denied, 624. writ will not lie to restore an attorney suspended or disbarred, where discretion exercised, 625. unless in case of clear abuse, 625. where court without jurisdiction the writ will lie, 626. where a right of review exists, some courts hold writ will not lie; others that right of review is not an adequate remedy, 625. attorney entitled to notice; where notice is wanting court without jurisdiction, 626. writ lies to compel court to recognize a district attorney duly elected or appointed, 627. and to compel an inferior court to appoint an attorney to defend a person mow compos, 637. Particidar courts — justices' courts and justices of the peace: writ addressed to, 628. may be compelled to proceed and determine matters within their jurisdiction, 638. INDEX. 1175 References are to sections. MANDAMUS (continued) — Particular courts (continued) — to fi'^^^fo*^- "^'^^ examination of persons charged with crime, 628. to entertain a complamt for embezzlement, 638 vT,. "^ti" IT""* ^^^."^ *1'® proceedings have reached the stage where the duty is ministerial, 628. to make entries m docket according to the facts, 628. out not to ciiange entries once made, 628. to certify the record or transcript, 628. to issue execution upon a judgment, 628. not to vacate a judgment, 628. discretion of, will not be controlled, 628. Supreme court of the United States— when writ may issue from, 629. except in certain cases stated the writ only issues in aid of its appel- late jurisdiction, 629. '^^ subject discussed, 629. mandamus to an officer is the exercise of original jurisdiction, 629. to an mfeiior federal court, appellate, 629. Circuit and district courts of the United States— when writ may issue from, 630. no authority to issue it as an original writ in any case, 630. writ cannot issue from, to state courts or state officers, 630. the exception is that the writ may issue as a process to enforce iudg- ments, 630. cannot issue to compel levy of a tax to pay municipal bonds, 630. nor to compel register of land office to grant final certificate of pur- chase, 630. when judgment has been obtained, writ may issue to enforce it, 630. Supreme court of the District of Columbia — nas power to issue the writ as an original process, 631. removal of causes, 632. Wi-it does not lie to compel a state court to remove a cause, 632. State courts — superior court cannot issue to compel subordinate court to allow re- moval of a cause, 633. Supreme or court of last resort — when writ may issue from, 634. in some states writ only issues in aid of appellate jurisdiction, 634. in others such courts have original jurisdiction, 634. good reason must be shown for not applying to subordinate court having jurisdiction, 634. To public officers — general principles, 635. Executive officers — writ will not lie to control or direct ordinary official duties, 636. will lie to compel action where they refuse, 636. will compel performance of mere ministerial duties, 636. writ only issues to officers in being, 637. then only where they have the power and whose duty it is to perform the act, 637. an act not authorized by law cannot be compelled, 637. nor can more be required than the duty thus prescribed, 637. nor can a public officer be compelled to do that which his superior has ordered him not to do, 637. their discretion not subject to control, 638. adequate remedy existing, writ will not issue, 638. Federal officers; rule in respect to, 689. 1176 INDEX. References are to sections. MANDAMUS (continued) — Secretary of the interior — may be compelled to issue patent where the act has become merely ministerial, 640. not where the signature of the president is wanting, 640. will not issue to compel commissioner of land oiBce to prepare and issue patent, where discretion is yet to be exercised, 641. nor to compel him to examine application where he has done so and rendered an adverse decision, 641. Secretary of state — may be compelled to deliver commission, 643, Postmaster-general — may be compelled to pay an award, 643. Secretary of the treasury — will not be compelled to pay claim where decision adverse to claim- ant, 644. nor where there is no appropriation made, 644 nor to pay a draft to an administrator not appointed in the proper jurisdiction, 644. Secretary of navy — will not be compelled to pay pensions, 644a. the duty in that respect is judicial, 644a. Superintendent of public printing — discretion of, with respect to delivering documents, wiU not be con- trolled, 645. State officers: Governor — whether the writ will lie in any case, discussed, 646 et seq. writ has issued to compel the issue of commissions to ofiBcers duly returned as elected, 650. also to proceed to canvass returns of an election, 650. to draw his warrant upon the treasurer in favor of a railroad com- pany, 650. and for the payment of salaries of state officers, 650. to sign and execute patents for land, 650. to authenticate, as a statute, a bill duly passed, 650. State executive officers — in some states writ will not lie in any case, 651. writ has issued to compel secretary of state to revoke license of an insurance company, 652. to audit and allow a claim against the state, 653. to compel a state board to advertise for proposals for printing state reports, 653. to compel treasurer to pay a demand, 653. State boards — writ will issue to compel action, 653. to perform a particular act, 653. but not to compel discretion, 653. State and other auditing officers — ministerial acts will be compelled, 654. not those involving discretion, 654 action upon a claim may be, 654. their discretion will not be controlled in passing upon it, 654 where the amount is fixed by law, they are without discretion, 654. if audited at a less sum. may be compelled to audit at proper sum, 654 where the law fixes salary, and a board may have fixed a compensa- tion, 654 INDEX. 1177 References are to sectioDS. MANDAMUS (continued) — Warrants for salaries — the act of issuing is ministerial, 655. mandamus is the proper remedy, 655. Warrants for awards and other purposes — where award is certain, depending on no contingency, and the amount has been definitely determined, writ will lie, 656. where work has been accepted and the duty is to deliver bonds, de- livery may be compelled, 656. when duty is ministerial and when not, 657. subject illustrated, 657. Payment of awards and other claims — when ordered directly or by specific appropriation, duty is minis- terial, 658. an award of appraisers or other special tribimal may be questioned by the disbursing officers, 658. it has been held that the same rule applies to a town where such right exists; mandamus will not issue, 659. in other courts it is held that the duty of pavment is purely minis- terial, 660. right of action does not operate to supersede the writ, 661. where warrant is drawn on a special fund for a particular indebted- ness, mandamus is the only remedy, 661a. where proper board directs withholding of payment, writ will not issue. 661a. special levy cannot be ordered where indebtedness exceeds constitu- tional limit, 661a. Clerks of court — their duties largely ministerial, 663. executions; compelling issue of, 663. in some states writ will not lie for money judgment, 663. an adequate remedy exists in an action upon his bond, 663. or application can be made to the court for an order, 663. the rule is otherwise with respect to judgments of other kind, 663. action for damages may not be an adequate remedy, 664. Other duties — writ lies to compel furnishing of copies of papers, 665. to compel recording of documents, 665. the furnishing of transcripts, 665. the delivery of books and papers, 666. the inspection of papers and records, 669. the reporting of fees, 666. their payment into the treasury, 666. the issuing of certificates of election, 667. to prevent recording of votes cast under an unconstitutional law, 668. Approval of bonds — the duty is gwosi- judicial, 670. writ will lie where discretion not involved, 670. will not lie where refusal is on the ground of insufficiency of sureties, 670. District attorneys — duties largely discretionary, 671. Sheriffs — duties largely executive, 673. duties are mmisterial in executing conveyances of land, 673. _ will not be compelled to levy upon property where title or right not clear, 673. ,. ^ ,, , , nor to amend return, where he insists return is according to the facts, 674. 1178 INDEX. References are to sections. MANDAMUS (continued) — Sheriffs (continued) — will be compelled to make appraisal, 674 in sale of property, clothed with discretio'n, 675. will be compelled to execute writ of restitution, 676. Begisters of conveyances and documents — duties are largely ministerial, 677. inspection of records may be compelled, 677. County clerics — duties generally are ministerial, 678. Public officers generally; rights and duties of — entitled to that which pertains to the office, 679. surrender and delivery may be enforced, 679. retiring officer compelled to deliver records to his successor, 680. incidents of application of rule, 681. writ only lies to compel performance of acts incident to some office or position of trust, not to private persons. 682. writ lies to compel inspection of records, 683. right and title to office, 683. Elections — county seat; removal of, tested by mandamus, 684 writ directed to county officers to compel holding of office at the county seat, 684 the whole question involving the election is open to inquiry, 684 in many states the proceeding is regulated by statute, 684 in Nebraska it is held the court cannot go behind the face of the re- turns, 684 right and title to office, how far determined; appropriate proceeding is quo warranto, 685. Admission to office — mandamus the appropriate proceeding where there is no adverse in- cumbent, 686. rule where municipal body is made the judge of the qualification and election of members, 686. they have iio power after member has been seated, 686. incidental questions affecting the right may be determined by man- damus, 687. Compelling an election — notice of an election will be compelled after charter day has passed, 688. the holding of a special election to fill a vacancy will be enforced, 688. the proper board or officer may be compelled to place name upon of- ficial ballot, 689. secretary of state will be compelled to place nominations of a, de facto party upon ballot, 689. where the decision of supervisors is made by law final, the writ will not issue, 689. Election officers — ■ appointment of, may be enforced, 690. Boards of canvassers — duties are mainly ministerial, 691. those relating to authenticity of the returns are quasi-judicial, 691. where pure questions of law are involved they will be determined upon mandamus, 691. duty of ascertaining number of votes is ministerial, 692. board may be compelled to proceed and complete canvass, 692. and to include returns unlawfully rejected, 692. and to reconvene for such purpose if they have adjourned, 692, 698. INDEX. 11T9 References are to sections. MANDAMUS (continued) — Boards of canvassers (continued) — if election unauthorized or not held at the proper time writ will be withheld, 693. such exception does not extend to the conduct of the election, 693. board will be directed to determine who is entitled to certificate of election for member of congress, 693. though the power to determine the right to the office is vested in congress, 693. state boards can only act upon returns received, 694. they possess no power in absence of statute authorizing to send for additional returns, 694 defective ballots; ballots containing initials of christian name; duty of canvassers, 695. in quo warranto, question of intent is open, 695. when mandamus will lie to compel board to determine; courts not in harmony, 695, 696. board may be compelled to perform its duty, though certificate has been awarded, 697, 698. Wisconsin court held otherwise, 697. if governor, acting upon returns, has issued a commission, he cannot be compelled to issue another, 698. duties that are judicial, 699. those which involve the effect of erasures or interlineations upon ballots, 699. where by law they have the power to determine matters of contest, 699. state boards in determining matters upon appeal, 699. writ will not lie until default, 700. questions of eligibility not determined, 701. Possession of the office — mancZajftMS, the appropriate remedy to obtain possession of books and papers pertaining to an office, 703-704. peremptory writ will not issue upon motion, unless right is clear and not in dispute, 703. certificate of election not conclusive upon the right, 704 where title determined by lot, statute must be strictly pursued, 705. in case of duplicate appointments, writ will not lie to determine the right, 706. Bemoval and restoration of public officers — mandamus is the appropriate remedy to restore a public officer who has been wrongfully removed, 707. rule where office has been filled, 708. subject discussed, 708, 709. relator will not be seated where it appears he must be ousted upon contest, 709. must show that he is an officer de jure, 709. not sufficient to show that he is such de facto, 709. corporation may be compelled to remove an officer, 728. Cause of removal; jurisdiction — where power is absolute writ will not lie, 710. where the power exists for " due cause," a question of law is pre- sented which will be determined by the court, 710. appointee in place of one removed may institute proceeding to ob- tain possession of books and papers, 711. .,,. whether incumbent can question, in such proceeding;, the right to re- move or the legality of the proceedings, not definitely settled, 71^. County seat: elections to deter7nine location of— . ■,• ■ i, whether board in determining sufficiency of petition acts judicially oi in an administrative capacity, courts are not agreed, .Id. in Wisconsin extrinsic evidence maybe received to establish identity of names, 713a. 1180 INDEX. Eeterences are to sections. MANDAMUS (continued) — County seat; elections to determine location of (continued) — its judgment upon the evidence cannot be reviewed, 713a. the board may be compelled to exercise its discretionary power, 713a. in Minnesota decision of board as to sufficiency of petition conclu- sive, 714. if the erasing of names involves questions of fact, the writ will not lie to restoi-e, 714. if merely a question of law involved, writ will lie, 714. in Nebraska the court determines the sufficiency of the petition from the evidence, 715. in Nevada the proceeding on the part of the board is judicial and the writ will not lie, 716. canvassing votes cast at such an election, 717. duties of the board are mainly ministerial, 717. it was held that where duty of canvassing devolved upon county judge, it was judicial, 718. it is the character of the act and not the nature of the office that de- termines the question, 718. announcement of result may be compelled, 719. oath of office; administering of may be compelled, 720. Writ will lie to compel officers to determine sufficiency of sureties upon bond, 731. Also to issue certificates of election, 723. Also to attach seal to a commission, 733. Appointment to office — when compelled, 723. writ lies only to compel action, 723. will issue to compel proper board to confirm, 734^ boards having joint authority may be compelled to meet and ap- point, 726. Appointment of veterans; civil service — writ lies to compel observance of the law, 735. will not issue to compel judge to appoint veteran to the office of crier of court, 785. appointment not compelled where office is filled, 725. nor where board considers the applicant incompetent, 735. writ will lie to compel placing of name on eligible list, 735. Employees — distinction between officers and employees, 737. employees not within the rule, 737. Acceptance of office; whether it can be compelled, 739. Fitness for office not determined, or decision of proper board reviewed, 730. Promotion of veterans, 731. Municipal corporations — county boards are classed as quasi-itianicvpal bodies, 783. Auditing claims; rule, 734. Payment of claims, 735. Judgments; providing for payment of — mandamus the appropriate remedy, 736. cannot be compelled to exceed maximum allowed by law, 737. amount of tax cannot be restricted after debt contracted, 738. law authorizing contracting of debt presumes power to levy tax to pay it, 739. mandate may be broad enough to secure the fund, 740. merits of the action not open, 741. jurisdiction; want of may be shown, 743. distinction between negotiable bonds and ordinary warrants, 743, 744 in the former, duty required by law may be enforced, 743. INDEX. 1181 References are to sectiong. MANDAMUS (continued) — Judgments; providing for payment of (continued) — aiscretion conferred as to manner of providing fund not controlled. demand required, 745. writ not granted pending appeal from judgment, 746. ™746 Mte *° ^''^°''°® judgments does not lie in New England states. Bonds; levy of tax to pay, 747. judgment essential in federal courts, 747. such courts otherwise without jurisdiction, 747. m state courts writ will lie where levy provided for by statute, 748. rule not absolute m all cases. 749. accurate statement of the rule, 750. irregularity of proceedings cannot be urged as a defense, 751. payment of money collected; rule, 753. Enforcing subscriptions; issue of bonds, 753. statute authorizing issue must be strictly pursued, 754 where not, writ will not lie to enforce, 754. fraud in enacting ordinance, effect of, 755. Levy of taxes for other purposes — general principles stated, 756. for the erection of public buildings, 756. for payment of awards, 757. proceedings essential to enable contractor to coUeot from property owners may be compelled, 758. for the payment of ascertained vrater rentals, 759. individual or corporate rights must be involved, 760. Other duties relating to public funds — creation of sinking fund will be enforced where directed by law, 763. also levy of tax. as a poor fund, 763. also levy of tax for support of library, 763. Highways — keeping in repair, 763. discretion as to manner not controlled, 763. removal of obstructions, 764. discretion not controlled, 764. opening of, may be compelled, where duty not discretionary, 765. Bridges — construction and repair of, may be compelled, where duty not discre- tionary, 766. duty determined by judgment of a court will not lie, 767. bridge over stream dividing two counties, when writ will lie, 768. to authorize writ with respect to improvements duty must be plain, 769. Licenses — duty in respect to, will be enforced, 770. writ will not lie to control discretion, 770. otherwise where refusal is arbitrary or illegal, 770. writ will lie to compel revoking of, 770. where refused under mistaken construction of law, writ may issue, 770. Contracts — Letting of — where law gives discretion to reject any and all bids, duty is judi- cial, 771. Contracts for public printing — in absence of statute, contract may let to one not the lowest bidder, 773. writ will not lie where contract let and partly performed, 773. patented device; rule, 773. 1182 INDEX. References ar&to sections. MANDAMUS (continued) — Contracts, performance — conditions precedent on part of city will be enforced, 773. Reversing action — rule with respect to compelling, 774. with respect to fixing water rates, 775. with respect to award of damages, 776. with respect to changing character of buildings, 777. with respect to changing location of county seat, 778. with respect to changing ferry license, 779. with respect to decision of president of common council, 780. with respect to action of board of supervisors upon bill incurred by board of health, 781. duty where amount of claim has been detei-mined by other officers, 782. rule with respect to compelling meeting of board or council, 783. Ordinances; compelling enforcement of, 784. board; entitled to writ compelling custodian to produce books and records for inspection, 785. also to compel delivery of bonds, 786. Correction of record; ivhen may be compelled, 787. erroneous decision of presiding officer, when may be corrected, 787. deposit of documents in proper place may be compelled, 777. School boards — may be compelled to act, 788. discretion not controlled, 788, 789. ministerial acts compelled, 789. erection of school-house when directed by electors, 789. the proper distribution of school books, 789. reinstatement of pupil illegally excluded, 789. parent may determine what studies child shall pursue, 789. colored children entitled to benefit of public schools, 790. right may be enforced, 790. where separate schools provided by law, 790. writ does not lie to admit in other, 790. in absence of such a statute, school boards without authority, 790. Teachers — reinstatement may be compelled where removed without authority, 791. not officers, but employees, 793. president of the board may be compelled to sign contract, where legally employed by directors, 793. payments out of the school fund may be coinpelled in certain cases, 792. examining board or officer may be compelled to issue certificate to one who has passed the required examination, 793. also to examine an applicant, 793. Private corporations — writ only lies to enforce public duties or those arising from position of trust, 794. nature of duties, 795. discretion not subject to control, 79R. remedy by action, adequacy of, 797. contracts will not be enforced or liability upon determined, 798. Public duties; rule, 799. specific acts required by law to be done in a specific manner will be enforced. 799. visitorial power of the state extends to all corporations and is ex- ercised through the medium of the courts, 803. INDEX. 11 8S References are to sections. MANDAMUS (continued) — Railroad companies — are gMasi-public corporations, 803, may be compelled to perform acts required bv their charters or by- laws, 803. i . J and additional acts that may be incident thereto, 803. may be compelled to operate their road, 804. cannot change route without legislative consent, 804. cannot abandon one terminus and seek another, 804. rule does not extend to operation of road upon exact line of con- struction, 805. cannot abandon any part of road, 805. where one company became the owner of two parallel lines, it was held that it might abandon one, 805. writ does not lie to compel construction of road. 806. poverty as an excuse for not performing specific duties, 849. must operate road as a continuous line, 808. this doctrine applied to the Union Pacific Railroad Company with re- spect to its bridge over the Missouri river, 808. manner of construction in cities may be directed, 809. power of legislature to impose additional burdens and restrictions,. 810. changes and repaii-s may be directed, 811. in some states charters are considered contracts, 813. rule therein as to control by courts, 813. construction of viaducts may be directed, 809. also the restoration of highways, 813, 814. construction of private crossings may be directed, 815. also the construction of cattle-guards, 816. fences; the duty to erect depends upon provisions of law, 817. in some states such duty is not imposed, 817. where it exists, its performance may be enforced, 817. the establishment of stations may be enforced, 818. reasoning of the Massachusetts court, 819. rule with respect to the abandonment and restoration of depots, 830. carriage and delivery of freight may be enforced upon reasonable terms and conditions, 800, 821, 882. and without discrimination, 831. writ will not lie to compel performance of duties resting purely in contract, 833. rule illustrated, 833. the duty must be specific, and the right clear and undoubted, 824. furnishing separate trains for passengers, whether compelled, 835. regulation of rates; power of the courts, 836. unlawful discrimination ; power of the courts to prevent, 831, 837. commutation tickets; when issue of may be compelled, 838. compensation for land taken may be enforced by compelling com- pany to institute proceedings, 839. the ground upon which the writ issues, in the cases mentioned, is that no other adequate remedy exists, 830. Water-works companies — are ^Ma.si-publio corporations, 800, 831. public debts may be enforced, 833. individuals operating public franchise subject to the same rules as corporations, 801a. may be compelled to adopt reasonable rates, 833. the legislature may change, though rates are fixed by charter, 883. authority of the courts to change, 833. such companies cannot discriminate as to persons or rates, 833. may be compelled to extend mains, 834. to change location of pipes, 835. 11 Si INDEX. References are to sections. MANDAMUS (continued) — Water-works companies (continued) — to furnish pure and wiiolesome water, 836. the nature of the franchise does not prevent the enforcement of du- ties that are clear, 837. Oas companies — distinction recognized by some courts from water companies, 838. distinction not tenable, 888. are gwasi-public corporations, 839. whether they can be compelled to furnish gas to all applicants, courts not agreed, 840. Telephone companies — are giiasi-public corporations, 841. may be compelled to grant equal privileges to all, 841. including telegraph companies, 842. may be compelled to remove poles where so directed by municipal authorities, 843. •Canal companies — are gMasi-j)ublic corporations, 844. public duties may be enforced, 844. Log-driving companies — operating under charters, are gwasi-publio corporations, 845. cannot discriminate nor operate works for purely private use, 845. Street railway companies — are guasi-public corporations, 846. subject to municipal control, in manner of using streets, as to con- struction and operation, 846. may be compelled to pave portions of streets they occupy, 847. poverty as an excuse, 848. may be compelled to adjust or protect wires so as not to interfere witli telephone wires, 850. may be compelled to move poles where so directed by municipal au- thorities, 851. Private corporations proper — courts will not interfere with internal regulations of, 853. specific duties will be enforced, 853. proper officers of, may be compelled to call and hold elections, 854. inspection of books and papers may be compelled at instance ofstook- holder, 855. writ not granted where motive is that of mere curiosity, 856. subject discussed, 856, 857. discretion exercised in issuing writ, 858. demand and refusal essential, 859. transfer of stock upon books, 860. whether it can be compelled, courts are not agreed, 860. where sale has been made by an officer upon legal process, writ may lie, 861. writ will lie to compel entry upon books of the probate of a will dis- posing of stock, 861. issue of stock may be enforced, 863. delivery of corporate books and papers to successor may be enforced, 863. affixing of corporate seal may be compelled, 864. Societies — admission to society may be enf oi-ced where relator has a clear right, 865. reinstatement of members may be compelled, 866. merits of controversy not open to review, 867. whether act is in violation of the by-laws a question for the courts, 868. INDEX. 1185 References are to sections. MANDAMUS (continued) — Societies (continued) — ''^ofe.^ "^^* ^® reasonable and germane to the object of the society, 869. procedure on part of society, to what extent reviewed, 870. charges must be specific and record kept, 871. remedy by appeal within the order, 873. society must act within its jurisdiction, 873. charges must be served, 873. total absence of evidence to sustain the charge is an absence of iuris- diction, 873. proceedings not warranted by constitution and by-laws, void, 873. ' where they are arbitrary or oppressive, writ will lie, 873. visitorial power of the state extends to their proceedings, 874 and the protection of the rights of members, 874 breach of contract, in absence of moral delinquency, not sufficient cause for expulsion, 875. suit in equity to dissolve society; jurisdiction, 876. where by-laws do not contain provisions for the determination of con- tract relations, courts are open, 877. grand lodge to determine conflicting rights of representatives, 878. Religious corporations — rule respecting, 879. distinction between denominational society and a church corporation organized under statute, 879. ministers unlawfully deposed may be reinstated, 880. execution of trusts by such societies will be enforced, 881. MutuLol benefit societies — expulsion of members, 883. notice, when required, 883. jurisdiction; effect of want of, upon rights of members, 884 grounds for expulsion or forfeiture, 885. effect of changes in constitution and by-laws, 886. waiver of forfeiture, 887. vrhen it may result from a course of dealing, 888. subsequent assessments after default, 889. waiver of non-performance of other conditions, 890. waiver of forfeiture by inconsistent acts, 891. omission to pay assessments resulting from accident and other un- controllable causes, 893. reinstatement; effect upon contract, 89-3. remedies of members, 894 jurisdiction of the superior body incorporated under the laws of an- other state, 895. MECHANICS' LIENS — actions to foreclose, not special, 130. are in the nature of proceedings in rem, 331. they affect the property, but are not conclusive upon strangers, 331. in Maine, the proceeding is in rem and notice must be given to all the world, 331. judgment affects only the interest of the parties, 231. in some states, if there is failure to establish the lien, personal judg- ment may go against the one primarily liable for the debt, 331. statute not applicable against a municipality, 331. ' in actions to enforce, appearance will not confer jurisdiction over the res, 55. MINISTER (see Religious Societies). MINISTERIAL DUTIES (see Mandamus; Ceetioeaei). 75 1186 INDEX. References are to sections. MISTAKE — as ground for relief in equity against a judgment, 143, 153. foreign judgments impeachable on ground of, SOS. MORTGAGES — foreclosure of, 208. not strictly a proceeding in rem, 213. personal judgment for deficiency cannot be rendered in absence of personal service or appearance, 213. MUNICIPAL CORPORATIONS — Mandamus — will lie where there is a failure of positive duty without discretion, 589. county boards are classed as g^^asi-municipal corporations, 733.. auditing claims; rule, 734. payment of claipis, 735. judgments providing for payment of, 736. cannot be compelled to exceed maximum allowed by law, 737. amount of tax cannot be restricted after debt contracted, 738. discretion conferred as to manner of providing fund not controlled, 744. payment of money collected; rule, 752. enforcing subscriptions; issue of bonds, 753. ' statute authorizing issue must be strictly pursued, 754 fraud in enacting ordinance; effect of, 755. levying taxes for other purposes, 756. general principles stated, 756. for the erection of public buildings, 756. for payment of awards, 757. proceedings essential to enable contractor to collect from property owners, 758. for the payment of ascertained water rentals, 759. creation of sinking fund, 762. levy of tax for poor fund, 763. for support of library, 763. duties in respect to highways, see Highways. duties in respect to bridges, see Bridges. ' duties in respect to licenses, see Licenses. action once taken not reversed with respect to fixing water rates, 775.^ award of damages, 776. changing location of county seat, 778. changing ferry license. 779. decision of president of council may be, 780, 787. also decision of board of supervisors upon bill incurred by board of health, 781. only where amount of claim has been determined by other officers, 782. with respect to meeting of board, 783. ordinances, compelling enforcement of; compelling custodian to pro- duce books and papers, 785. and delivery of bonds not issued, 786. correction of record, when compelled, 787. Certiorari — writ lies to review judicial acts, 433a. distinction between judicial and ministerial acts, 433a. appointment and removal of officers, 432a. creating and dividing towns, school districts, etc., 482a-433c. tax proceedings, review of. 4i33&. writ ordinarily directed to the board, not to the clerk, 438d. • writ lies at any stage of the proceedings, 443. ' INDEX. References are to sections. 1187 MUNICIPAL CORPORATIONS (continued) — Certiorari (continued) — where charter powers are exceeded, or requirements of charter not pursued, proceedings will be annulled, 442. proceedings with respect to opening streets reviewed, 443. where the invalidity of the organization of a town appears upon the face of the record, certiorari %vas held the appropriate remedy, 526. subsequent decision contra, 527. Quo warranto — writ was formerly used to dissolve municipal corporations, 525. in this country writ more generally used to test legal existence of such corporations, 525. question usually tested by a proceeding against the ofiBcers, 526. where the invalidity of the organization of a town appears upon the face of the record, 526. 527. doctrine of some courts that writ will not lie directly against corpo- ration, 526, 527. other courts contra. 526, 527. municipal corporations in this country are not dissolved. 528. writ will not lie to enforce performance of duties imposed by law, 528. the rule as to dissolving corporation may be different in case of non- user or abandonment, 528. proceedings of public corporations not interrupted, reviewed or amended. 529. in Illinois, rule apparently contra, 529. the proceeding has been used in Kansas to annul the exercise of an excess of corporate powers, 539. The relator, see Relator. proceedings where agricultural lands have been included m vulage, ,531. where lands are not adjacent to village settlements or contiguous, 533. MUNICIPAL INDEBTEDNESS (see Mcnicipal Coepoeations; Bonds; Awards; Warkakts; Auditing Officers; Mandamus). MUTUAL BENEFIT AND OTHER SOCIETIES (see Mandamus) — admission to society may be enforced when relator has clear right, 865. reinstatement of members may be compelled, 866. merits of controvei-sy not open to review, 867. „ ., ^ whether act is in violation of the by-laws a question for the courts, 868 by-law must be reasonable and germane to the object of the society, procedure on part of society, to what extent reviewed, 870. charges must be specific and record kept, 871. remedy bv appeal within the order, 873. society must act within the jurisdiction, 873. . - ■ j. total absence of evidence to sustain the charge is absence of jurisdic- tion, 873. charges must be served, 873. •■ , , ,m q7q proceedings not warranted by constitution and by-laws, void, 87d. where they are arbitrary or oppressive mandamus will "e, 87d. visitorial power of the state extends to their proceedmgs, 874. and the protection of the rights of membere, 874. ,«,„,-„„+ breach of contract, in absence of moral delinquency, not sufficient cause for expulsion, 875. . . ■,■ i.- ont- suit in equity to dissolve society; jurisdiction, 87b. where by-lais do not contain provisions for the determination of con- tract relations, courts are open, 877, „(.„+;„„„ 070 grand lodge to determine conflicting rights of representatives, 878. 1188 INDEX. References are to sections. MUTUAL BENEFIT AND OTHER SOCIETIES (continued) — expulsion of member from mutual beneiit society, 883. notice, when required, 883. jurisdiction; efEect of lack of, upon rights of member, 884 grounds for expulsion or forfeiture, 885. effect of changes iu constitution and by-laws, 886. waiver of forfeiture, 887. when it may result from a course of dealing, 888. subsequent assessments after default, 889. waiver of non-j)erformance of other conditions. 890. waiver of forfeiture by inconsistent acts, 891. omission to pay assessments, resulting from accident or other uncon- trollable causes, 892. reinstatement, effect upon contract, 893. remedies of members, 894. jurisdiction of superior body incorporated under laws of another state, 895. N. NOTICE (see Process)— where required in probate proceedings, it must be given, 126, 218. distinction between void notice and defective notice, 182, 218. notice and opportunity to be heard, 304. see Attobneys; Due Process of Law, 0. OFFICE AND OFFICERS (see Elections; Board of Canvassers; Quo Warranto) — Mandamus — does not lie to interfere with executive officers in the exercise of oflS- cial duties, 636. will lie to compel action in performance of ministerial duties, 636. whether writ will lie to compel executive officers of state to perform duties, 651, 653. see Governor. secretary of state may be compelled to revoke license to insurance company, 652. to audit and allow claims against the state, 652. state treasurer may be compelled to pay a demand, 653. state boards; may be compelled to advertise for proposals for print- ing state reports, 653. may be compelled to take action, 653. to perform a particular act, 653. discretion not controlled, 653. federal officers; rule, 639. secretaiy of the interior, issue of patent, 640. where act is purely ministerial, 640. commissioner of land office; issue of patent where discretion.is yet to be exercised, 641. secretary of state; delivery of commission, 643. postmaster-general; payment of an award, 643. secretary of the treasury; payment of claim, 644. where no appropriation made, 644. payment of draft to administrator not appointed in proper jurisdic- tion, 644. secretary of navy; payment of pensions, 644a. only in that respect judicial, 644a. superintendent of public printing; delivery of documents, 645. INDEX. 1189 References are to sections. OFFICE AND OFFICERS (continued) — Mandamus (continued) — in general duty must be ministerial, 563, 573. officers must have power to perform the act, 563. discretion of the officer not controlled, 573. abuse of discretion, when controlled, 573. ministerial acts defined, 573. writ only issues to officers in being, 637. an act not authorized by law cannot be compelled, 637. nor can a public officer be compelled to do that which his superior has ordered him not to do, 637. writ only lies to compel performance of acts incident to some office or position of trust, not to private persons, 683. distinction between officers and employees, 737. admission to office, 686. incidental questions affecting right, 687. right and title to office, how far determined, 685. nominations for office, 689. placing names on official ballots, 689. possession of office, when writ will lie, 703. retiring officer compelled to deliver records to his successor, 679, 680. where title determined by lot, statute must be strictly pursued, 705. appointment to office, when compelled, 733. confirmation of appointment, board compelled to act, 724. appointments under civil service, 735 et seq. boards having joint authority may be compelled to meet and appoint, 737. duplicate appointments, 706. acceptance of office may be compelled, 739. fitness for office, 730. removal and restoration, 707. rule where office has been filled, 708, 735. cause of removal ; jurisdiction, 710. where power is absolute writ will not lie, 710. ■where the power exists for " due cause," a question of law is presented for the court, 710. appointee in place of one removed may institute proceedings to ob- tain possession of books and papers, 711. whether incumbent can question right to remove in such proceeding, quaere, 713. relator will not be seated where it appears he must be ousted upon contest, 709. must show that he is an officer de jure; not sufficient that he is such de facto, im. corporation may be compelled to remove an officer, 738. Quo warranto — writ only lies where one is in possession of an office, 4sb. incumbent holding over must himself institute proceedings where he claims the office, 486. if not a candidate he must surrender the office, 486. persons declared elected entitled to possession pending contest, 487. officers distinguished from agents, 488. writ only lies to test the right to an office, 488. . . ^ the inquiry may extend to judicial, administrative and executive offi- cers. 488. rule where charter makes a municipal board the judge of the quali- fication and election of its members, 494-496. remedy lies where there is not an office to be filled, see Relator, In Quo Warranto. certificate of election is prima facie evidence ot the ngnt, Ml. court may go behind ballot-box and purge the retiu-n, 507. 1190 INDEX. References are to sections. OFFICE AND OFFICERS (continued) — Quo warranto (continued) — the burden changes where prima facie character of the certificate is destroyed, 508. if claimant fails, judgment of ouster goes against him. 508. if the evidence shows relator received a plurality, the respondent must overcome it, 508. matters relating to the conduct of the election, 509. see Board op Canvassers; Elections. appointment made prior to the act creating the oiBce taking effect IS void, 510. the legal existence of the county or town may be inquired intc^ 510. district illegally created, election void, 510. effect of lapse of time and accjuiescence, 510. constitutionality of act creating office, a subject of inquiry, 511. also the validity of the proceeding calling it into existence, 511. vacancy in office may be tested, 512. also the power or legality of appointment, 512. neglect of officers to approve a proper bond, 512. failure to take constitutional oath, 512. bond may be filed and oath taken after judgment, 513. Eligibility; question of — aliens not eligible, 514. see Aliens. de facto officer; term defined, 515. discussion of naturalization laws; status of children of alien parents, 95, 514, 516, note. person holding another office; rule, 517. persons convicted of crime, 518. fact of guilt must have been judicially established, 518. the commission of crime disqualifies in some states, 518. subject open to inquiry, 518. bribery; effect of, 519. votes infiuenced by promises, 519. expiration of term; effect on proceedings, 520. office abolished, 520. trial by jury; right to, 521. the judgment; form and requisites, 523. fine; imposition of, 523. appeal does not stay execution of judgment, 524 Prohibition — executive officers will not be restrained in the exercise of their du- ties, 453. the exercise of judicial powers not conferred, or in excess of those conferred, will be restrained, 453. writ will not lie to restrain the exercise of ministerial duties, 454. administrative action and powers not subject to restraint, 452. where the right exists to remove an officer for cause, the board or officer acts judicially, 451. title to office will not be tested by. 479. in California legality of grand jury may be, 479. office and officers; private corporations, see Private Corporations. judgments affecting rights and privileges of office binding on suc- cessors, 255. ORDERS (see Alimony; Change op Venue; Contempt; Habeas Corpus; Prohibition) — Granting — vacating, dismissal of causes, 609 et seq. Mandamus ivill not lie — to review what has been done, 609. nor to compel vacating of order staying proceedings, 609. INDEX. 1191 Eeferenoes are to sections. ORDERS (continued) — Mandamus will not lie (continued) — or granting a new trial, 609. or dismissing an action. 609. or made in a chancery suit entered by consent, 609. or ordering a special election under a local-option law, 609. or suspending an attorney, 609. or admitting a will to probate, 609. or granting or dissolving an injunction. 611. rule otherwise in some courts. 611. other orders; granting or va.oating, 582, note, 6116. void order, disobedience of, see Prohibition, 461 et seq. PARTIES AND PRIVIES (see Impeachment of Jiidgment by Stran- gers) — defined, 233. parties not of record, when bound by judgment, 356 et seq. PARTITION — proceedings not strictly in rem, 231. personal judgment for costs cannot be rendered in absence of per- sonal service or appearance, 321. PERJURY (see Impeachment of Judgments) — as a ground for relief against judgment, 164 PERSON (see Jurisdiction op Person, 30 et seq.) — Jurisdiction of, defined, 5. in personal actions obtained by personal service or voluntary ap- pearance, 30 et seq. PHYSICIAN (see Contempt; Witnesses). PLEADING — suflSciency of, a question of law, 14. PRESUMPTIONS — in favor of the jurisdiction of domestic superior courts when pro- ceeding according to the course of tbe common law, 109. exception where record discloses defendant lived beyond the territo- rial limits. 111. also where judgment is taken pro eonfesso, 111. where superior courts are in the exercise of special jurisdiction, 112 et seq. are against the jurisdiction where special powers are exercised in a special manner, 113. ■otherwise when brought into action in the ordinary manner, 113. are against the jurisdiction when general powers are exercised over a special class, 113. where special mode prescribed, record must disclose that such man- ner was pursued, 113. doctrine of the California court, 114. rule with respect to subsequent proceedings, 115. effect of record disclosing failure of substantial compliance, 116. rule in federal court, 116. ^ rule in state courts, 116. summary proceedings, 117. •record must show strict compliance with statutory requirements, 118. inferior courts and courts of limited jurisdiction; jurisdiction not appearing, presumed not acquired, 131. conflict of opinions with respect to the rule, 135. 1192 INDEX. Eeferences are to sections. PRESUMPTIONS (continued) — when exercising statutory powers with respect to sale of decedents'" estates, record must disclose compliance with statute, 136. see Probate Courts. county courts are courts of general though limited jurisdiction, where not exercising probate jurisdiction, 138. inferior courts propei', statutory courts, and courts of justices of the peace, 139. records must affirmatively show compliance with statute, 139. same with respect to other inferior tribunals exercising judicial powers, 139. j ^ rule applied to a common council with respect to requisite number of votes upon a resolution. 130. effect of record upon subsequent pi'ooeedings, 131. where statute requires an entry and none appears, no presumption that step was taken, 133. judgment docketed in superior court, same presumption attaches as to judgments of that court, 135. averments of record as to jurisdictional facts, no presumption of other or different evidence, 137. PRIVATE CORPORATIONS (see Mandamus, 853 et seq.; Quo Warranto, 533 et seq. See also Railroads; Water Companies; Gas Com- panies; Street Railway Companies; Canal Companies; Tbue- PHONE Companies) — mandamus lies to enforce public duties on part of, 799 et seq. visitorial powers of the state, 803. courts will not interfere with internal regulations of, 853. there exists adequate remedies at law to meet such cases, 853. specific duties will be enforced, 853. furnishing list of stockholders, 853. submitting books for inspection, 853-855. hospital, furnishing certificates of death, 853. elections may be compelled, 854. inandamus does not lie to enforce duty to submit books and papers for inspection where purpose is idle curiosity, 856. court exercises discretion, 858. demand for inspection must be made at proper time and place, 859. transfer of stock; mandamus lies to compel, 193. exceptions to the rule, 861. may be compelled to enter upon books the probate of a will, 868. and issue corporate stock, 863. corporation or one entitled may compel delivery of corporate books and papers to proper custodian, 865. SQcieiies and associations — mandamus lies to compel admission into society, 865. also to reinstate member in certain cases, 866. merits of controversy not open to review, 867. by-laws; must be reasonable and germane to the object of the society, 869. whether act is in violation thereof, a question for the courts, 868. procedure by the society in cases of expulsion; requisites, 870. charges must be specific and record kept, 871. society must act within its jurisdiction, 873. charges must be served, 873. must appear upon the record, 873. opportunity to be heard must be given, 873. charges must be supported by evidence, 873. clear and express authority must appear by the constitution and by- laws, 873. proceedings must not be oppressive or arbitrary, 873. nor the result of malice, 873. INDEX. 1193 References are to sections. PRIVATE CORPORATIONS (continued) — Societies and associations (continued) — violation by member of a rule which is against public policy no of- fense, 873. breach of contract ordinarily not, 876. whei'e by-laws do not contain provisions for the determination of con- tract relations of members, courts are open, 879. visitorial powers of the state, 874. remedy by appeal within the order, 873. suit does not lie in equity to dissolve benevolent societies, 876. grand lodge to determine conflicting rights of representatives, 878. Mutual benefit societies — visitorial power of the state, 883. expulsion of members. 883. for non-payment of dues and assessments, 883. notice, when required, 883. sufficiency of notice, 883. jurisdiction, want of; effect upon member, 884 power of courts, 884. grounds for expulsion or forfeiture, 885. assessments; validity of, always open, 884. engaging in hazardous employment, 885. forfeiture only declared where policy so declares, 886. changes in the laws, effect of, 886. waiver of forfeiturii, 887. receipt of overdue premiums or assessments, 886. holding the amount of the assessment, 889. extending time, effect of. 887. course of conduct or dealing, 888. assurance that policy will not be forfeited, 888. proof by parol notwithstanding provision in policy otherwise, when admissible, 888. subsequent assessments after default, effect of, 889. New York rule, 889. waiver of non-performance of other conditions, 890. mistake as to age, effect of, 890. , . . waiver extends to existing contracts, and not to the makmg of new ones, 890. waiver by inconsistent acts, 891. doctrine of New York court, 891. omission to pay assessments resulting from accidents or uncontrol- lable causes, 893. remedies of member, 894. mandaniMS lies to reinstate in some cases, 894 , ,- . reinstatement; effect upon contract; mandamus does not lie to com- pel payment of assessments, 894. nor to compel payment of insurance, 894 „ . ^ ^ , on^ death of member does not affect the question of reinstatement, 894. to what extent, and in what cases, member must first exhaust his remedy in the order before application to the courts, 873 et seq. jurisdiction of superior body or lodge when incorporated under laws of another state, 895. j ■ „ association making corrupt use of its powers, ground for proceedings by quo warranto, 545. Reliqious corporations or societies — t, .?,-„„:„u„^ courts ordinarily do not interfere with matters of church discipline, distinction recognized between a denominational society and church corporation, 879. ministers unlawfully deposed, 880. 1194: INDEX. References are to sections. PRIVATE CORPORATIONS (continued) — Religious corporations or societies (continued) — execution of trusts, 881. mandamus will compel performance of temporal duties on the part of officers, 881. Sights and duties of members — quo warranto will lie to determine right of an alleged intruder into office, 533. corporate office is a franchise, 538. to be a corporation is a franchise, 533. statutory remedies to determine corporate rights and rights of mem- bers, 534. remedy concurrent in some states, 534 in others, supersedes common-law writ, 534 remedy in equity; whether it exists, courts not agreed, 535. parties to the proceeding, 536. , those whose interests are injuriously affected may maintain the ac- tion, 536. in quo warranto, unless changed by statute, the proceeding is in the name of the state, 536. an information filed by the attorney-general on relation of proper party, 536. Corporate franchises; private — corporate franchises, definition of, 540. proceedings to forfeit are public, and must be prosecuted by public authorities, 537, 539. not so as to matters involving merely the administration of corporate franchises, 537. modes of dissolving corporation, 538. abuse of franchise, a public wrong, 539. courts may inquire into matter of use of a franchise, 541. also determine whether privileges exercised have been conferred, 541. in the former judgment may be forfeiture, 541. in the latter it may be ouster, 541. non-user of a franchise, ground of forfeiture, 542. but only for wilful neglect or abuse, 543. suffering act to be done which destroys the end and object of the corporation, equivalent to a direct surrender, 543. technical violations will not work a forfeiture, 544. acts of officers considered the acts of the corporation, 544. agent departing from his duties or violating instructions will not work forfeiture, 544. act and omissions which have been held sufficient, 545. distinct franchises may be forfeited without affecting main body, 546. effect upon corporation of abuse of a particular franchise, 546. distinction between misuse of a franchise and acts ultra vires, 547. quo warranto does not lie to determine disputes between a corpora- tion and an individual, 548. nor to inquire as to fraud committed by the corporation in acquiring property, 548. condemning property for private use, an abuse of franchise, 548. discretion exercised in declaring forfeiture, 548. non-user must be total to justify forfeiture, 550. insolvency and suspension of bank ordinarily not sufficient, 551. otherwise if long continued, 551. statutory remedies in such cases, 553. usurpation of franchise; what constitutes, 558. failure to acknowledge articles of incorporation;' effect of, 553. existence of de facto corporation not subject to collateral attack, 532, 587, 542. whether proceedings should be against the corporation or its officers, 555. INDEX. 1195 References are to sections. PRIVATE CORPORATIONS (continued) — Corporate franchises; private (continued) — extent of the inquiry, 556. right to exercise a franchise. 557. efiEeot of statutes extending remedy by quo warranto to include abuse of powers, 558. other remedies existing; effect of, 559. action in equity, where quo warranto lies, is considered a coUaiieral attack, 535. legal existence of a de faeto corporation cannot be inquired into col- laterally, 535 et seq. rule does not apply to actions brought against subscribers, 537. nor prevent strangers from showing there was no laW authorizing a corporation, 537. nor any attempt at corporate organization, 537. nor any assuniption of corporate powers, 537. nile not applicable to coudemnation proceedings, 537. estoppel, when applicable, 560. PRIVIES — defined, 233. see Impeachment of Judgment by Strangers. PRIVILEGED COMMUNICATIONS (see Contempt; Attorneys; Physi- cians; Husband and Wife). PRIVILEGE — WITNESSES (see Contempt; Attorneys; Physicians; Husband and Wipe; Jurors). PROBATE COURTS (see Inferior Courts; Impeachment of Judg- ments) — c[uite generally classed as courts of limited jurisdiction, 135 et seq. in respect to sale of estates of decedents, record must aflSrmatively show compliance with statutory requirements, 125, 216. where notice requii-ed, it must be given, 136, 318. are subject to collateral attack upon ground of lack of jurisdiction, 173. jurisdiction cannot be sustained by extrinsic evidence, 174 when such evidence permissible to show lack of jurisdiction, 175. impeaching record and recitals, 176 et seq. effect of recitals stated and illustrated, 178. statement of facts upon which jurisdiction depends may be refuted, 179. impeachment of record as to seryice, 180. nile as to impeachment and collateral attack in several states, 180 et seq. distinction between void notice and defective notice, 188, 318. probate judgments are nullities when rendered without jurisdiction, 316. are not sti-ictly judgments in rem, 316. what has been actually adjudicated, where there was jurisdiction, is conclusive upon strangers, 316. rule in federal court, 317. in some courts the petition gives the court jurisdiction, 218. decree of sale of estate of lunatic, 2186. substituted service, effect of, 232. PROCESS — requisites of personal service, 31. requisites of substituted service, 33. leaving at usual place of abode, 33. whether jurisdiction is thus obtained, quaere, 33. declaration of the federal court that personal service only is due pro- cess of law, 33, 146, 300. 1196 INDEX. References are to sections. PROCESS (continued) — service by publication, 34 et seq. the aflSdavit, requisites of, 35 must contain averment of statutory grounds, 86. must disclose that defendant has property in the state, 36. must disclose a cause of action, 37. where order based upon a complaint as well as affidavit it is sufflcient if the complaint states a cause of action, 37. must disclose that defendant is a non-resident and has property within the state or that cause of action arose therein, 38. must disclose the exercise of diligence in attempting personal serv- ice, 39. where ground is departure from the state to avoid service of process or concealment therein for like purpose, such ground must ap- pear, 40. this provision has no application to a non-resident or one temporarily absent, 41. whether statement of facts must be made positively or may be upon information and belief, courts differ, 43. complaint must be verified and filed, 43. rule in federal coiu't, 44. rule in Iowa, 44 record must show existence of an order, 44, note. service outside of the state, when may be made, and effect of, 45. there must be a valid order authoi'izing, 45. publishing and mailing superseded, 45. when service is complete, courts not agreed, 45. when service is complete in case of publication, 46. order, directions of, 47. voluntary appearance, effect of, 48. see Consent. recitals with respect to service may be contradicted, 145. return of officer cannot be, 147. setting aside service of process, 610. PROHIBITION, WRIT OF — definition and nature of the writ, 445. lies only where jurisdiction is wanting, 446. or, where jurisdiction exists, some question arises beyond the power of the court to determine, 446. its purpose is to confine courts within the limit of their powers, 446. excess of jurisdiction will be restrained. 447. it is a preventive rather than a remedial process, 447. does not take the place of a writ of error or other method of review, 447, 456. when the granting of the writ is discretionary, 448. only lies to restrain the exercise of judicial functions, 449. will not arrest legislation pending before a duly-authorized body, 449. legislature cannot enlarge scope of writ and include ministerial func- tions, 449. legislative bodies, how far subject to control, 450. will be restrained where they attempt to usurp judicial powers, 450. or, being clothed with judicial powers, they proceed in excess thereof, 450. Removal of officers — where the right exists for cause, the board or officer acts judicially, 451. administrative action and powers not subject to restraint, 452. Executive officers — will not be restrained in the exercise of their duties, 458. the exercise of judicial powers not conferred or in excess of thoso conferred will be restrained, 453. INDEX. 1197 References are to sections. PROHIBITION, WRIT OF (continued) — Executive officers (continued) — ministerial officers, sheriffs, taxing officers, and the like, 454 writ will not lie to restrain them in the exercise of ministerial du- ties, 454. Boards of review — exercise judicial functions; writ will lie, 455. Jurisdiction, question of, 456. writ does not lie where act is done, 456. rule illustrated, 457. nor where warrant is void, or indictment or complaint is insufficient, 457. nile illustrated, 458. Contempt proceedings — rule applies to contempt proceedings, 459. whether acts or words are contempts is not a question of iurisdio- tion, 460. disobedience of void order not contempt, 461. distinction between those void and voidable, 462, 463. rule in California, 463. rule in Iowa, 464 Courts-martial, when proceedings will be restrained, 465. jurisdiction of such courts, 465. General provisions — writ will not lie where there exists another adequate remedy, 466, 467. rule illustrated, 468. judgment ordered without trial, 468. party once acquitted upon same charge, 467. where proceedings in one court have been stayed in another, 468. where proceedings are pending to incorporate village under uncon- stitutional law, 468. where proceedings are subject to review upon certiorari, 468. rule otherwise where court is proceeding contrary to an express pro- hibition of statute, 469. also where judge is disqualified, 470. remedy to be adequate must be reasonably prompt, 471. if appeal pending, court below will' be resti-ained from proceeding, 472. so an inferior court will be restrained where proceeding upon split demands, 473. also where service was unlawfully made, 474. removal of causes; state court proceeding, writ will not lie, 475. see Removal of Causes. w^here right to change of venue established, court below will be re- strained, 476. also where action is brought in wrong county, 476. a court will be restrained from granting a new trial where it is with- out authority, 477. also where judge has a personal interest in the litigation, 477. suggestion must be first made in the court below is the rule in some courts, 478. title to office will not be tested, 479. in California the legality of a grand jury may be, 479. stage of proceedings where writ will lie, 480. ordinarily not after they are closed, 481. but proceedings under void orders may be restrained, 481. Q- QUO WARRANTO — nature and office of the writ, 482. at common law it was a criminal method of prosecution to punish the usurper of a franchise or office and to oust him therefrom, 483. 1198 INDEX. References are to seetions. QUO WARRANTO (continued) — it is still a gwasi-oriminal proceeding, 482. it is beyond .the power of the legislature to abolish it. 482. statutory proceeding quite generally a new proceeding, 483. may be brought in name of the state by a private person when attor- ney-general refuses to act, 483. or where the office pertains to a county, town, village or school dis- trict, 483. such a proceeding is civil in character, 483. it merely changes the form of procedure, 484 proceeding double in its purpose, 485. to determine and vindicate public rights, and to enforce and protect civil rights of individuals, 485. the defendant must establish his right, 485. if he fail, it does not establish that of the relator, 485. the burden is upon him, 485, 507. Title to office — writ only lies where one is in possession of an office, 486. incumbent holding over must him.self institute proceedings where he claims the office, 486. if not a candidate, he must surrender the office, 486. person declared elected, entitled to possession pending contest, 487. officers distinguished from agents, 488. writ only lies to test the right to an office, 488. the inquiry may extend to judicial, administrative and executive offi- cers, 488. proceedings vpill not lie to prevent the doing of particular acts, 489. whether a writ of right or discretionary, 490-495. Rule in courts of last resort, 491. to warrant the assertion of original jurisdiction, the interests of the state should be primary and proximate, 491. other remedies existing; their effect, 492-495. Special statutory remedy, 493. rule where charter makes a municipal board judge of the qualifica- tion and election of its members, 494-496. power of the legislature to control the use of the remedy, 483-495. the remedy lies where there is not an office to be filled, 496. equity is without jurisdiction, 497. •mandamus will not lie to remove an incumbent, 498. Relator; interest required, 499. whether taxpayer may be, 499-501. or member of board, 499. rule where purpose is to dissolve a corporation, 500. relator must have a direct interest, 501. discretion of attorney-general, when subject to control, 503. general rule stated, 503. application to the court ; leave of, how obtained, 504 statutes; effect of, upon the rule, 505. practice under statutes, 506. Extent of the inquiry, 485-507. certilicate of election is prima facie evidence of the right, 507. court may go behind the ballot-box and purge the return, 507. rule where the prima facie character ot the certificate is destroyed, 50o. the burden changes, 508. if the claimant under it fail, judgment of ouster goes against him, 508. if the evidence shows relator received a plurality, the respondent must overcome it, 508. matters relating to the conduct of the election, 509. irregularities merely do not invalidate, 509. INDEX. 1199 References are to sections. QUO WARRANTO (continued) — Extent of the inquiry (continued) — or impeach the presumptive force of the certificate, 509. to have such effect, it must appear that by reason thereof legal votes were not received, or illegal votes were, 509. sufficient to change the result or cast a reasonable doubt upon it, 509. if, by misconduct or fraud, it appears that the canvass is false, the _ force of the certificate becomes destroyed, 509. irregularity should not be confounded with failure to observe man- datory requirements of substance, 509. voter only entitled to exercise right of suffrage in precinct where he resides, 509. failure to provide for registration where required, fatal, 509. Constitutionality of registration laws, 509. Matters relating to the office — appointment made prior to the act creating the office taking effect is void, 510. the legal existence of the county may be inquired into, 510. same with respect to a town, 510. district illegally created, election void, 510. irregular corporate existence may become regular by lapse of time and acquiescence, 510. constitutionality of an act creating an office a subject of inquiry, 511. also the validity of the proceedings calling it'into existence, 511. vacancy in office may be tested, 512. also the power or legality of appointment, 513. neglect of officers to approve a proper bond does not affect the ri^it or title to the office, 512. nor does the failure to take the constitutional oath, 513. person to whom the certificate has been refused may take oath and file bond after judgment in his favor, 513. Florida court to the contrary, 513. Eligibility, question of — aliens not eligible, 514. right conferred in many states to hold state and municipal offices upon declaration of intention, 515. right exists if disability removed prior to commencement of term, 515. in California aliens may be appointed or elected to certain legislative offices, 515. presumption in favor of eligibility, 515. alien holding office a de facto officer, 516. de facto officer; term defined, 516. discussion of naturalization laws; status of children of alien-born parents, 516, note, person holding another office, rule, 517. person convicted of crime, rule, 518. fact of guilt must have been judicially determined, 518. in some states the commission of crime disqualifies; subject open to inquiry, 518. bribery, effect of, 519. conviction of the offense of, disqualifies, 519. in some courts use of corrupt means does not, 519. in some others such conduct only reaches votes that were thus in- fluenced, 519. votes influenced by promise to donate money or other valuable thing to a third party or a corporation or institution will be rejected, 519. same, where promise is to perform certain duties of office for less than salary, 519. 1200 INDEX. References are to sections. QUO WARRANTO (continued) — Eligibility, question o/ (continued) — expiration of term; effect of, upon proceedings; general rule is that proceedings will not be dismissed, 520. nor will they be dismissed where office has been abolished, 520. trial by jury, right to, 521. The judgment; form, and requisites of, 522. fine, imposition of, 523. appeal does not stay execution of judgment, 524. Municipal corporations — writ was formerly used to dissolve municipal corporations, 525. in this country writ more generally used to test legal existence of such corporations, 525. question usually tested by a proceeding against the officers, 526. where the invalidity of the organization of a town appeared upon the face of the record, certioran was held the appropropriate remedy, 526. subsequent decision of the same court contra, 527. in some courts writ will not lie directly against the corporation, it being considered a recognition of corporate existence, 526, 527. in other coui-ts it is held that such objection is technical, 526, 527. municipal corpoi-ations in this country are not dissolved, 528. writ will not lie to.enf orce performance of duties imposed bylaw, 528. the rule as to dissenting corporation may be different in case of non- user or abandonment, 528. proceedings of public corporations not interrupted, reviewed or amended, 529. in Illinois, rule apparently contra, 529. the proceeding has been usad in Kansas to annul the exercise of an excess of corporate powers, 529. The relation — ordinarily that of the attorney-general, 530. in some jurisdictions this rule prevails where proceedings are against the officers, 530. in others the rule is otherwise, 531. persons whose interests are directly affected may become relators, 531. what may be such an interest stated, 531. proceedings where agricultural lands have been included in village, 531. where lands are not adjacent to village settlements or contiguous, 532. Private corporations — writ will lie to determine right of an alleged intruder into ofBce, 533. to be a corporation is a franchise, 533. a corporate office is a franchise, 533. statutory remedies, their effect, 584. in some states such a remedy is concurrent, 534. in others the common-law writ is superseded, 534 remedy in equity, whether it exists courts not agreed, 535. parties to the proceeding, 536. proceeding is civil in character, 536. those whose interests are injuriously affected may maintain the ac- tion, 536. in qao warranto, unless changed by statute, the proceeding is in name of the state, 536. on information tiled by the attorney-general on relation of proper party, 536. ^ ^ INDEX. 1201 Eeterences are to sections. QUO WARRANTO (continued) — Corporate franchises; private — proceedings to forfeit the franchises are public, and must be prose- y \ cuted by public authorities, 537, 539. in matters involving merely the administration of corporate fran- chises rule does not prevail, 537. modes of dissolving a corporation enumerated and discussed, 538. vrhere offense is against the public, attorney-general must pr6secute, abuse of a franchise is a public wrong, 539. corporate franchise, definition of, 540. Abuse affranchise — courts may inquire into manner of use of a franchise. 541. also determine whether the privileges exercised have been conferred, 541. in the former, judgment may be forfeiture, 541. in the latter it may be ouster, 541. Non-user of a franchise — forfeitiire may be declared, 543. but only for wilful abuse or neglect, 543. suffering an act to be done which destroys the end and object of the corporation is equivalent to a direct surrender, 543. mere technical violations not sufficient to work a forfeiture, 544. the acts of officers considered the acts of the corporation, 544. forfeiture will not be declared where agent departs from his duties or violates instructions, 544; acts and omissions which have been held sufficient to authorize the proceeding, 545. mutual relief associations making corrupt use of their powers, 545. use of franchise to create a monopoly, 545a, 5456. non-compliance with conditions imposed upon a turnpike company, 545. road permitted to become unsafe, 543. abandonment of part of road, 545. operating road for private instead of for public purposes, 545. courts proceed with extreme caution in such oases, 545, effect upon the corporation of abuse of a particular franchise, 546. distinct franchises may be forfeited without affecting the main body, 546. distinction between misuse of a franchise and acts ultra vires, 547. gas company violating contract with city, subject to ordinary legal methods, 547. distinction illustrated, 548. writ does not lie to determine disputes between a corporation and private persons, 548. nor to determine whether the corporation has perpetrated a fraud in acquiring property, 548. where, however, a coi-poration condemns property for merely private use, it is a misuse and abuse of its franchise, 548. discretion exercised in declaring forfeitures, 549. non-user to justify a forfeiture must be total, 550. insolvency and suspension of operations ordinarily not sufficient to oust a bank of its privileges, 551. otherwise if it continues a length of time, 551. statutory remedies in such cases, 553. Usurpation — what may constitute, 553. failure to acknowledge articles of incorporation, effect of, 553, existence of de facto corporation not subject to collateral attack, 554. .1j 76 1202 INDEX. References are to sections, QUO WARRANTO (continued) — Usurpation (continued) — whether proceedings should be against the corporation or its oflScers, 555. extent of the inquiry, 556. proceedings to oust from the exclusive right to exercise a franchise, 557. effect of statutes extending remedy to include abuse of powers, 558. other remedies existing, effect of, 559. estoppel, when applicable, 560. E. RAILROADS (see Mandamus; Private Corporations) — are gitasi-publio corporations, 803. incidental duties; performance may be enforced, 803. specific acts required by law to be done in a specific manner will be enforced, 799. duty must be specific and right clear and undoubted, 834 Visitorial power of the state, 802. may be compelled to perform acts required by their charters or by- laws, 808. may be compelled to operate road, 804. cannot change route witliout legislative consent, 804. cannot abandon one terminus and seek another, 804. rule does not extend to operation of road upon exact line of con- struction, 805. cannot abandon any part of road, 805. owning two parallel lines, may abandon one, 805. mandamus does not lie to compel construction of road, 806. poverty as an excuse for not performing specific duties, 849. must operate road as a continuous line, 806. and over bridge connecting two points, 806. manner of construction in cities may be directed, 809. power of legislation to impose additional burdens and restrictions, 810. in some states charters are considered contracts, 813. rule therein as to control by courts, 813. Viaducts — construction of may be directed, 809. Highways — restoration of, 813, 814. duty extends to those constructed since construction of road, 814 construction of, 816. Cattle-guards — construction of, 816. Fences — duty to erect depends upon provisions of law, 817. in some states such duty is not imposed, 817. where it exists its performance may be enforced, 817. Stations — establishment of, 818. reasoning of Massachusetts court, 819. rule with respect to the abandonment and restoration of depots, 830. Freight — delivery and carriage of, 800, 831, 833. cannot discriminate, 831, INDEX. 1203 References are to sections. RAILROADS (continued) — Contract — duties, not enforceable by mandamus, 833. rule illustrated, 833. Separate train — for passengers, 835. Bates — regulation of; power of courts, 836. Unlawful discrimination — power of the courts, 831-837. Commutation tickets — when issue of compelled, 838. Compensation for land taken — may be enforced by compelling company to institute proceedings, 889. the ground is, there exists no other adequate remedy, 830. Other duties — mandamus will not lie to compel transportation of beer into a state where prohibited, 586. abandonment of part of road will authorize proceedings in quo war- ranto, 545. also operating road for private instead of public purposes, 545. courts proceed with extreme caution in such cases, 545. RECEIVERS — court appointing, has exclusive jurisdiction of proceedings affecting the title or possession of the receiver, 86. action for damages may be prosecuted without leave of such court, 86, 87. contrary ruling, 86, 87. subject regulated in federal courts by act of congress, 87. one claiming possession of property in hands of a receiver must come to that court in that case and obtain leave to file bill, 87. action of ejectment permitted by the New York court, 86. action to set aside foreclosure and sale not permitted, 86. receiver selling property not mortgaged, 87. national bank may be sued though receiver appointed, 87. the fact that a federal court has appointed a receiver does not pre- vent state court from compelling, by mandamus, a recorder to can- cel an inscription against the property of relator, 87. judgment against principal, how far conclusive upon surety, see Bonds. RELATOR — in mandamus, who may be, 564 private individuals may be, where private rights mvolved, 564. where public rights involved, rule, 564. in most jurisdictions a private person havmg an mterest may be, 564, 565. rule in federal courts, 566. ^ , , where private interests involved, right of relator must clearly appear, 567. ^ -x •„ 4. ■ the rule goes to the extent that the peremptory writ wiU not issue to enforce a doubtful right, 590. to direct reinstatement of ap^.eal it must appear relator has clear right to the appeal, 604. 1201 INDEX. Eeferenoes are to sections. EELATOR (continued) — In certiorari — taxpayer may maintain proceeding to review action of taxing boards or officers where the amount of the taxes has been increased, 444a. persons injuriously affected by action of highway commissioners may maintain, 444a. In quo warranto — may be brought in name of state by private person when attorney- general refuses to act, 483. or where office pertains to a county, town, village or school district, 483. incumbent holding over must himself institute proceedings, where he claims the office, 486. interest required, 499. whether taxpayer may be, 499-501. or member of board, 499. rule where purpose is to dissolve corporation, 500. must have a direct interest, 501. with respect to municipal corporate franchises, ordinarily the attor- ney-general, 530. in some jurisdictions this rule prevails where proceedings are against the officers, 580. in others the rule is otherwise, 531. persons whose interests are directly affected may become relators, 531. what may be such an interest stated, 531. with respect to private corporate rights and franchises, 537. those whose interests are injuriousl3' affected may maintain the ac- tion, 536. proceeding, unless changed by statute, is in the name of the state, 536. an information filed by the attorney-general on relation of proper party, 536, proceedings to forfeit the franchise are public and must be prose- cuted by public authorities, 537-539. in matters involving merely the administration of corporate fran- chises, rule does not prevail, 537. where offense is against the public, attorney-general must prosecute, 539. EECORDS (see Books and Papers; Impeachment op Judgments). REGISTER OF CONVEYANCES — duties generally ministerial, 677. inspection of records enforced, 677. REMOVAL OF CAUSES (see Prohibition) — state legislatures cannot restrict nor impose conditions, 96. when cause removed, 596, note. mandamus will lie to compel remanding of cause improperly re- moved, 596. federal court unlawfully assuming jurisdiction, mandamus lies to remand, 582, note. mandamus does not lie to compel removal, 632. state court proceeding after removal cannot be enjoined, 82, note, 475. nor will party lose his rights by defending, 82, note. if the state court proceeds, remedy Iby appeal from highest court of state, 83, note. if judgment sought to be enforced out of the state, then the circuit court to which removed may enjoin, 82, note. REPLEVIN — actions in, not strictly in rem. 220. judgments liave no force as to strangers, 220. purely a personal action, having for its subject-matter personal prop- erty, 220. INDEX. 1205. Eeferencea are to sections. REPLEVIN (continued) — ^''sou^ht ^2 "7^* conform to statute, where delivery of property fs' jurisdiction not affected to proceed to determine issues of title and possession, 337. P''?F®oo? ^^^^^^ ^^°^ "*^'"* ^°^ subject to replevin in another court, it is considered in custody of court, 238. remedy of party where property has been wrongfully taken, 339. appearance will not confer jurisdiction, 55. not a proper remedy to recover bonds or papers deposited with a pub- lic oflacer, 581. r r r f S. SALARIES (see Quo Warranto) — payment of; when mandamus lies to enforce, 655, 656, 783. when issue of warrants for, will be compelled, 655. the sum fixed by law will be enforced, though board fixed a lower sum, 654. SCHOOLS — School boards — may be compelled to act, 788. discretion not controlled. 788, 789. ministerial acts compelled, 789. erection of school-house where district so directs, 789. distribution of books, 789. reinstatement of pupil, 789. parent has right to determine what studies child shall pursue, 789. colored children entitled to benefit of public schools, 790. mandamus lies to admit them, 790. where separate schools provided in accordance with statute, 790. in absence of such a statute, school board without autliority to estab- lish separate school, 790. reinstatement of teacher not compelled, 791. payment out of school funds may be compelled in certain cases, 793. teacher not an oificer, 793. not compelled to levy tax to pay illegal orders, 793. president of board may be compelled to si^n contract for employment of teacher where legally employed by directors. 793. examining board or officer compelled to issue certificate to one who has passed the required examination, 793. may be compelled to examine applicant, 793. SECRETARY OF INTERIOR — issue of patent may be enforced where proceedings have reached that stage that the act is ministerial, 640. not where the signature of president is wanting, 640. nor where discretion is yet to be exercised, 641. has no power to review act of commissioner in certain cases, 641, SECRETARY OF NAVY — duties in respect to payment of pensions judicial, 641 mandamus will not issue to enforce, 644a. SECRETARY OP STATE — delivery of commission enforced, 643. rule relating to state officers, see Office and Officers; Governob. 1206 INDEX. . References are to sections. SECRETARY OF TREASURY — decision with respect to payment of claim not reversed, 644 payment not compelled in absence of appropriation, 644. payment of draft not compelled to an administrator not duly ap- pointed, 644. SENTENCES — intermediate; effect on jurisdiction of invalid law authorizing, 19. fine and imprisonment imposed, where court limited to one, 34, 319. cumulative; excess of jurisdiction, 26, note, for longer term than statute prescribes, 88, 830. rule in New York in such cases, 28. distinction between excess in degree and a punishment unauthor- ized, 39, 319. erroneous sentence, 380. SERVICE OF PROCESS, 81 et seq. see Process; Impeachment of Judgments, 145 et seq., 191; Return OF Officer, 147, 179 et seq., 195; Substituted Service, 200, 332- 381 et seq. SHERIFF— duties largely executive, 672. in executing conveyance of land, duty ministerial, 678. cannot be compelled to levy upon property where title or right not clear, 673. nor to amend return where he insists it is according to the facts, 674. may be compelled to appraise property, 674. exercises much of discretion in sale of property, 675. duties in respect to writs of restitution may be enforced, 676. may have mandamus to restore possession of jail, 681. SOCIETIES (see Mandamus; Mutual Benefit Societies). STATIONS — duty of railroad companies to establish, enforced by mandamus, 818, 819. abandoned, mandamus lies to restore, 820. STOCK AND STOCKHOLDERS (see Private Corporations)— Transfer on books — whether it can be compelled, courts not agreed, 860. where sale has been made by an officer upon legal process, mandamus will lie, 861. entry upon books of the probate of a will disposing of stock may be compelled, 861. issue of stock may be enforced, 862. when may impeach judgment against corporation, 357. when may sue, 257. STREET RAILWAY COMPANIES — are gitasi-public corporations, 846. subject to municipal control in manner of using streets, both as to construction and operation, 846. may not discriminate, SOla, 846. compelled to pave portion of the street, 847. poverty as an excuse, 848. compelled to adjust and protect wires interfering with telephone wires, 850. compelled to move poles at direction of municipal authorities, 851. SUBSCRIPTIONS (see Bonds). INDEX. 1207 Eeferences are to sections. SUPERSEDEAS — anTwn'^.lif *° "eP'P^l granting of, in proper case, 606. thfivp Z^.SJ ^*?^*ing ^hen granted without authority of law, 606. wJiere discretion involved writ will. not lie, 606. SUPERVISORS (see Board of Stjpehvisoes). SUPREME COURT (see Courts). SUPREME COURT OF THE UNITED STATES (see Courts). SURETIES (see Bonds; Impeachment of Judgments, 339 et seq.). T. TAXES — levy of to pay judgments, when compelled. 736. levy cannot exceed maximum allowed by law, 737. law authorizing contracting of debt presumes power to levy tax to pay, 739. •' mandate broad enough to secure the fund, 740. levy compelled to pay improvement bonds, 637. amount of taxes cannot be restricted after issue of bonds. 738. levy of special tax to pay judgments on ordinary warrants, not com- pelled, 744. discretion with respect to manner of providing funds to pay indebt- edness, not controlled, 744. demand, when required, 744, 745. in New England states, judgments against municipalities not en- foroible by mandamus, 746. payment of bonds; compelling levy of tax, 747 judgment essential in federal court, 747. not essential in state courts in ordinary cases, 748. state courts may compel levy to pay federal judgment, 746. if validity of bonds disputed, courts may oblige holder to resort to action, 749, 750, 751. irregularities in preliminary proceedings not available, 751. levy of taxes for other purposes; general principles, 756. for public improvements, 756. payment of awards, 757. payment of ascertained water rentals, 759. providing sinking fund, 762. support of poor, 763. public library, 763. construction of bridges, 766. compelled to proceed to collect tax to pay for public improvement, 758. board compelled to meet and levy tax, 783. school board not compelled to levy to pay illegal orders, 793. see Warrants. Tax deeds — actions to foreclose not special, 130. countjr clerk compelled to issue, 678. if one issued that is defective, may be compelled to issue one without defect, 678. TEACHERS (see Schools). TELEPHONE COMPANIES — are gwasi-public corporations, 841. mandamus lies to compel granting of equal rights, 841. cannot discriminate against telegraph companies, 843. subject to municipal control as to location and removal of poles, 843. specific duties may be enforced, 843. 1208 INDEX. References are to sections. TRUSTEES — cestui que trust ordinariljr bound by judgment against trustee, 258. not where the judgment is against trustee individxially, 258. nor wliere he did not represent the cestui que trust, 258. TURNPIKE COMPANIES — non-oompliance with conditions imposed ground for quo warranto, 545. same; permitting road to become unsafe, 545. TJ. UNCONSTITUTIONAL LAWS — EFFECT UPON JURISDICTION— proceedings under, void, 15, 16. commitment for contempt in absence of order adjudging party guilty of, 15. committing one acquitted of an offense, on the ground of insanity, to an asylum attached to a prison, 15. offense created by, is not a crime, 16. conviction under, void, 16. former jeopardy, 17. indeterminate sentences, 19, 20. judgment of court upon the constitutionality of a law does not give jurisdiction, 429. liability of judicial officers when proceeding under law in fact un- constitutional, 906. see Habeas Corpus, 321a, 322, 327; Waiver of Constitutional Rights. UNCONSTITUTIONAL METHODS — proceedings must be in conformity to constitutional m^ethods, 21, 322. prisoner may be discharged on habeas corpus where not pursued, 322. UNITED STATES — mandamus will not lie to compel payment of claim or judgment in absence of appropriation therefor, 637. UNLAWFUL ACT — mandamus wiU not lie to compel, 585. V. VENUE (see Change op Venue). VESSELS — personal action against owners, see Concurrent Jurisdiction, 98 et seq. VISITORIAL POWER OF STATE — when exercised, 802, 839. with respect to construction of viaducts by railroad companies, 809. with respect to private corporations, 874. w. WAIVER (see Consent) — constitutional rights, 57. presentment by indictment, 21. former jeopardy, 58. is .waived by invoking new trial, 58. or by writ of error, a reversal of judgment, 58. INDEX. 1200 References are to sections. "WAIVEE (continued) — verdict rendered during defendant's absence in jail, set aside on his motion, not a waiver, 59. motion in arrest of judgment operates as a waiver, 62. not so in Wisconsin, 63. judgment reversed for failure of proof does not operate as a waiver, 63. right to be heard by self and counsel, and other rights and privileges, 63 et seq. Trial by Jury — weight of authority to the effect that such right may not be waived, 64 et seq. failure to challenge alien juror, 65, 66. exception, where by statute the accused may exercise an option as to waiver, 67. some courts of the opinion that accused may waive a jury in all cases not capital, 68. trial in county where crime committed, 69. waived when venue changed on motion of accused, 69. state cannot change, 69. accused shall not be compelled to be a witness against himself, 70. see Contempt; Privilege, etc. this right may be and is waived where accused voluntarily testi- fies, 70. either before a magistate or upon a coroner's inquest, 70. presence of accused; right to be heard by self and counsel, 71. he may waive such right is the doctrine of some courts, 71. in others the contrary is held, 59, 71, 73. record must show presence of accused, 73. Meeting witnesses face to face, 73. this right may be waived, 73. is waived where accused consents to the reading of depositions of absent witness, 73. or where witnesses are kept away by his procurement, 73. removal of accused for unseemly conduct, 74 Right to demand nature of accusation — this right may be waived, 75. is waived when reading of the indictment or information is waived, 75. Right to speedy and public trial — this right may be waived, 76. is waived when trial continued on motion of accused, 76. also when public are excluded at his request, 76. Waiver of service of process in garnishment, 56. Waiver of forfeiture and other conditions, 883 et seq. WARRANTS — For salaries — issue of may be compelled, 655. some courts contra, 655. for awards and other purposes, 656 et seq. duty in some instances ministerial, in others not, 657. where fund has been exhausted, 657. for money due on contract, 657. warrants drawn on special fund, 661. distinction between ordinary warrants and bonds, 743. payment of, 661 et seq. WATEP COMPANIES — public duties; enforcement of, 801, 801a, 833. duty to furnish water, 801a. duty to furnish pure water, 801a, 836. 1210 INDEX. References are to sections. WATER COMPANIES (continued) — rates and charges; power,of courts in respect to, 801a, 833, 833. are guasi-public corporations, 831. may exercise right of eminent domain, 831. municipal control with respect to mains, pipes, etc., 834, 835. acceptance of ordinance, when a contract, 837. legislature may not impair obligation, 837. when contract or franchise may be rescinded, 887. exclusive franchise; rule, 837. nature of franchise does not prevent enforcement of clear duties, 887. mandamus lies to enforce levy of tax to pay water rent, 759. discretion of municipal board in fixing, not controlled, 775. WILLS — will not signed, court is without jurisdiction to probate, 10. same witli respect to papers attached to a will, 10. probate of, a judgment in rem, 314, 818. WITNESSES (see Contempt; Priyilege, 305 et seq.; Attobneys; Phy- sicians; JuROES; ItorisTEES; Husband and Wife).