^^HEESaaSSi AT \ KF9035.H63 __^^„,^re«!^ ■6'2b 198 23A DATE DUE /f^HM '^^S^S^fel^ g .■ OAYLORD PRINTED IN U.SA The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020198234 ..i^H L'."^-^ A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, BMBRACIKQ MANDAMUS, QUO WARRANTO, AND PROHIBITIOlSr. By JAMES L. gGH, AUTHOR OP A TREATISE ON THB LAW OF nfJXJKOEIOlW. CHICAGO: CALLAGHAN AND COMPANY. 1874. ^l\*tr^ Entered according to act of Congress, in the year 1874, by James L. Eiqh, In the Office of the Librarian of Congress, at Washington PREFACE. In a previous volume, the author has attempted to delineate the principles governing courts of equity in administering relief by the extraordinary remedy of the writ of injunction. The unexpected favor with which that work was at once received, led to the belief that a similar treatise, upon some of the more important extraordinary remedies of courts of law, might prove acceptable to the profession, and the result is the following work, embracing the legal remedies of man- damus, quo warranto and prohibition. In the selection of these topics, the author has by no means intended to exclude others from the generic class of extraordinary legal remedies. He has rather been govei-ned by the unsatisfactory condition of our legal literature upon the subjects here included, and by the necessity for a more exhaustive presentation of the law governing these particular remedies, than is to be found in any existing treatise. To a considerable extent liis labors have covered a field hitherto untrodden, no previous writer having ever attempted a treatise upon either of the subjects here embraced, which should be founded upon and include the resiilt of all the English and American decisions. The author has endeavored to familiarize himself with these decisions, from the earliest eases in England, down to and including the latest reported cases in both countries, as well as many which have a])peared in the various legal periodicals. Following the inductive method, he has endeavored so to group and general- ize the results of his investigations, as to ascertain the gov- erning principles underlying all the decisions, and to state (3) ft IV PREFACE. these in <-,lie text with as much brevity as seemed consistent with clearness. If his generalizations are not always satisfac- tory tc his readers, they have at least the means of verifying their correctness, since his citations are believed to be as accurate as patient toil can make them. 'No case has been cited upon the authority of a digest, text-writer, or head note, and none without a careful and conscientious study of the entire decision from beginning to end. The author is well aware of a growing prejudice among the bench and bar against the rapid accumulation of law books. He is not disposed to assert that that prejudice is without just foundation, nor, upon the other hand, does he desire to be understood as tendering any apology for his own contributions to the literature of the profession. But if he may be permitted to state M'hat he conceives to be the real need of the profession, it is, not for fewer text-books, but for better ones. We want less rhetoric and more law in the hand-books which we are obliged to use in the daily routine of practice. Convenience in analysis and aiTangement, clearness and precision in the state- ment of principles, ease of reference and accuracy in citation, are the indispensable requisites of a good law book. Above all else the writer should content himself with stating the law as it is, leaving to legislators and judges the task of determining what it should be. In the attainment of these results, graces of style and diction may well be made a secondary considera- tion. And while a careful adherence to these conditions may not win for the author an enviable reputation in the domain of belles lettres, it will do something more and better, it will secure him the gratitude of a profession whose labors he has lightened, and whose just commendation should be hi? highest and best reward. J. L. H. Chicago, July 1, 1874. CONTENTS. THE J.KFERBNCBS ARE TO THE SECTIONS. PART FIRST. THE LAW OF MANDAMUS. CHAPTER I. SECTION. Of the Origin aud Natuee of the Wbit of Man- damus, 1-30 CHAPTER II. Op Mandamus to Public Officers, 31-146 I. — Nature and Grounds of the Jurisdiction, . 31- 48 II. — Election, Title and Possession of Offices, . 49- 66 III. — Amotion from Public Offices, .... 67- 72 lY. — Books, Records and Insignia of Office, . . 73- 79 v.— Ministerial Officers, 80-99 VI.— Auditing and Fiscal Officers, 100-117 YII.— Executive Officers, 118-134 YIII.— Legislative Officers, 135-136 IX.— Taxing Officers, 137-146 VI OOKTEIiTS. Sbctiok CHAPTEE III. Of Mandamus to Ikfekior Coukts, 147-275 I. — Principles governing the Jurisdiction, . . 147-1 9S II.— Bills of Exceptions, 199-215 III.— Attorneys, 216-224 lY.— State and Federal Courts, 225-229 Y.— Ministerial Functions of Courts, .... 230-238 YI.— Justices of the Peace, 239-245 YII. — Special Illustrations of the Jurisdiction, . 246-275 CHAPTEE lY. Of Mandamus to Private Coispokations, .... 276-322 I.— Outlines of the Jurisdiction, 276-290 II. — Amotion from Corporation, 291-305 III.— Corporate Eoolis and Ec cords, . . . .306-314 lY. — Eailways, Canals and Public Improvements, 315-322 CHAPTEE Y. Of Mandamus to Municipal ConroKATioNS, . . . 323-429 I. — Principles on which the Jurisdiction is exercised, 323-337 II. — Auditing and Payment of Municipal Obli- gations, 338-367 III. — Municipal Taxation, and herein of Munici- pal Aid Subscriptions and Bonds, . . . 368-400 lY. — Municipal Officers and Elections, . . . 401-412 Y. — Municipal Improvements, Streets and Highways, -. . 413-429 CHAPTEE YI. Of the Parties to the "Wkit, 430—447 I. — Parties for whom the Writ is granted, . . 430-439 II. — Parties against whom the Writ is granted, 440-447 CONTENTS. vii SSCTIOH. OHAPTEE VIE. Of the Pleadings in Mandamus, 448-49T I. — General Principles governing the Plead- ings, 448-466 II.— The Keturn to the Alternative Writ, . . 457-487 III. — Pleadings subsequent to the Return, . . 488-497 CHAPTEE VIII. Of the Peactice in Mandamus, 498-528 CHAPTER IX. Of the Alteenative Wkit, 629-546 CHAPTER X. Of the Peeemptoey Weit, 547-564 CHAPTEE XI. Of the Violation of the "Weit, 566-676 CHAPTER XII. Of the Codets enteusted with the Jueisdiotion, . 677-690 PART SECOND. QUO WARRANTO AND PROHIBITION. CHAPTER XIII. Of the Oeigin and Natuee of the Jueisdiotion in Quo Waeeanto, 591-622 CHAPTER XIV. Of Quo Waeeanto against Public Offioees, . . 623-646 Vlll CONTEKTS. SECTI014 CHAPTEE XY. Of Quo Wabeanto against Peivate Coepoeatiohs, 647-677 CHAPTEE XVI. Or Quo "Waeeanto against Municipal Coepoeations, 678-696 CHAPTEE XVII. Of the Paeties in Quo Waeeanto, 697-709 CHAPTEE XVIII. Of the Pleadings in Quo Waeeanto, 710-730 CHAPTEE XIX. Of the Peaotioe in Quo Waeeanto, 731-744 CHAPTEE XX. Of the Judgment in Quo Waeeanto, 745-761 CHAPTEE XXI. Of the Weit of Peohibition, 762-804 I.— Nature and Purpose of the Writ, . . . .762-772 II. — Principles governing the Jurisdiction, . . 773-794 III. — ^Practice and Procedure in Prohibition, . . 795-804 Page. Appendix, 585 Index to Paet Fiest, 603 Index to Paet Second, 658 TABLE OF CASES CITED. THE BBFEBEKCBB ABB TO THB SECTIONe. Ackerman v. Desha County, 33, 386 Adams v. Mathis, 347 Allen V. Robinson, 75 American Railway Frog Co. v. Ha- ven, 78, 306 Anderson v. Colson, 49 Anderson ». Pennie, 241 Anonymous, 14, 52, 71, 73, 153, 154, 381, 306, 329, 439, 465, 486, 628, 735, 774, 795 Apgar V. Trustees, 351 Appleford's Case, 380, 396 Applegate v. Applegate, 175 Arberry «. Beavers, 4, 57, 363 Arnold v. Shields, 765, 773 Asgill V. Hunt, 774 Atherton v. Sherwood, 73, 75 Attorney General -b. Barstow, 603, 604, 610, 634, 638, 703, 714, 739, 750 Attorney General «. Blossom, 610 Attorney General v. Leaf, 614 Attorney General v. Lum, 80, 81, 82, 504 Attorney General v. Michigan State Bank, 661, 710, 719, 730 Attorney General v. New Jersey R. & T. Co., 6 Attorney General v. Petersburg and Roanoke E. Co., 648 Attorney General v. Salem, 690 Attorney General v. Utica Ins. Co., 610 Auditorial Board v. Aries, 103 Auditorial Board v. Hendrick, 102 Austen v. Probate and Common Pleas Court, 256 Awdley ». Joy, 3, 577 B. Bacon and Lyon, JEx parte, 24, 156, 160 Baggs' Case, 2 Bailey v. Strohecker, 814 Baily, Ex parte, 156, 160, 162 Baker v. Administrator of Backus, 660 Baker ». Johnson, 356 Baker v. Marshall, 313 Baldwin v. Cooley, 779 Ballon «. Smith, 245 Banister v. Hopton, 774 Bank of Columbia «. Sweeny, 188, 192 Bank of Mount Pleasant, Be, 697, 706, 731 Banks, Ex parte, 24, 156, 172 Barker «. People, 685 Barksdale v. Cobb, 34, 156, 171 Barnett «. Warren Circuit Court, 357 Barrows v. Massachusetts Medical Society, 303 TABLE OF CASES CITED. [references are to sections.] Ba8sett, Ex parte, 156, 162 Bassett ». Barbin, 441 Bassett v. School Directors, 14 Bates V. Overseers of the Poor, 329 Bath County «. Amy, 29, 98, 392, 589 Bayne «. Jenkins, 116 Beanian ®. Board of Police, 347, 462, 554 Beck «. Jackson, 230, 231 Beebe v. Lockert, 246 Beffuhl «. Swan, 150 Bellows, Ex parte, 713 Benbow v. Iowa City, 377, 379, 393, 397 Benjamin v. Prieur, 229, 586 Benson, Ex parte, 24, 156, ICO Benson v. Paull, 25, 28 Bininger, Re, 787 Bishop of St. David v. Lucy, 794 Bishop of "Winchester's Case, 796, 797, 798, 799, 800 Blaclc, .E'j:p(M'<«, 24, 325 Black 0. Auditor of State, 80, 112, 113 Blacliburn, Ex pa/rte, 773 Blacquiere ii. Hawkins, 774 Blaltemore ». Glamorganshire R. Co., 6 Blecker «. St. Louis Law Commis- sioner, 188 Blunt n. Greenwood, 156, 163 Board of Commissioners v. Spitler, 783, 784 Board of Police ■;. Grant, 345, 463, 554 Bonham's Case, 2 Bonner v. State of Georgia, 49, 73 Booze J). Humbird, 437 Boraim n. DaCosta, 186 Boren v. Commissioners of Darke Co., 91 Borough of Calne, Be, 307 Borough of Uniontown «. The CommonM'ealth, 413 Bostwick, Ex parte, 177, 178 Bouton i>. Hursler, 773 Boycc V. Russell, 15 Boynton ». District Township of Newton, 377, 378 Bracken v. Wells, 39 Bradley, Ex pa/rte, 318 Bradley v. Sylvester, 695 Bradstreet, Ex parte, 191, 358, 569, 588 Brashear v. Mason, 138, 129 Braudlacht, Ex parte, 769, 770 Brazier «. Tarver, 186 Brem d. Arkansas Co. Court, 232 Brennan's Adm'r. n. Harris, 186 Bright ®. Supervisors of Chenango, 346, 348, 349, 535 Briscoe ». Ward, 199 Britton «. Platte City, 377 Bromley, He, 365 Brooke v. Ewers, 235, 349 Brosius V. Reuter, 71, 297, 461, 471, 473 Browerj). O'Brien, 60, 61, 63, 63, 430, 531 Brown v. Crego, 329, 365, 586 Brown v. Crippin, 225, 237, 584 Browne v. Rowe, 778 Bryan v. Cattell. 80, 104, 105 Buckley v. Palmer, 547 Budd V. New Jersey R. R. & Trans. Co., 350 Buggin V. Bennett, 774, 803 Burger v. The State, 782 Burnet v. Auditor, 339 Burr, Ex parte, 317, 218 Burr V. Norton, 73, 76 Butler V. Cobbett, 138 Butz V. City ot Muscatine, 369, 377, 393, 395 Byrne v. Harbison, 15, 177, 179 C. Campbell, Ex parte, 150 Campbell v. Wallen's Lessee, 325 Canal Trustees v. People, 530, 537, 538 Cannon v. Janvier, 508 TABLE OF CASES CITED. XI [befehences abs to sections.] Cariaga v. Dryden, 188, 189 Carnochan, Mx parte, 80, 81, 83 Carpenter v. Bristol, 191 Carroll v. Board of Police, 346, 347, 856, 462, 554 Casky v. Haviland, 186 Castello D. St. Louis Circuit Court, 151 Calchside «. Ovington, 774 Caton V. Burton, 803 Chamberlain, Ex parte, 152, 155 Chamberlain «. Sibley, 130 Chance v. Temple, 13, 430, 440, 514, 531, 537, 539, 548 Chase s. Blackstoue Canal Co.,159 Cheatham, Ex parte, 15, 177 Chicago, B. & Q. R Co. «. Wilson, 230, 237 Chicago & Northwestern R. Co. «. People, 322 Chickham v. Dickson, 774 Chisholm i>. McGehee, 111 Churchwardens Case, 53 Chtirchwardens ■ of Market Bos- worth V. Rector of Market Bosworth, 774 Cincinnati College r. La Rue, 41 Cincinnati etc. R. Co. v. Commis- sioners of Clinton Co., 389 Citizens Bank of Steubenville o. Wright, 34, 80, 86 City Council of Montgomery, E.r. parte, 156, 166 City of Galena v. Amy, 369, 377, 393, 397 City of Little Rock, Ex parte, 773 City of Louisville v. Kean, 327 City of Madison v. Korbly, 412 City of Olney v. Harvey, 365 City of Ottawa «. People, 4, 24, 413, 416, 431, 433 City of Zanesville v. Auditor, 96 Clapham v. Wray, 779 Clapper, Ex parte, 40, 434 Clark V. Board of Directors, 332 Clark t. McKenzie, 56, 60, 62, 63, 337, 441 Clark «. People, 629, 712, 716 Clarke ». Company of Proprietors, 538 Clarke a. Leicestershire & North- amptonshire Union Canal, 493 Clayton v. Heidelberg, 782 Cleary v. Dcliesseline, 697 Cleaver d. Commonwealth, 685 Cole, Ex parte, 273 Colonial Life Insurance Co. v. Su- pervisors of New York, 14, 140 Colt v. Roberts, 332 Commercial Bank d. Canal Commis- sioners, 448, 493, 503, 538 Commercial Bank t. McCaa, 669 Commissioner of Patents ». Wliite- ley, 128, 131, 191 Commissioners ». Auditor, 351 Commissioners of Boone «. State,429 Commissioners of Columbia ii. Bry- son, 337, 441, 448 Commissioners of Columbia Co. v. King, 883, 384, 519, 563 Commissioners of Crawford e. Lou- isville, New Albany & St. Louis Air Line R. Co., 390 Commissioners of Johnson Co. ■». Hicks, 339 Commissioners of Knox Co. v. As- pinwall, 383, 393, 394, 553, 590 Commissioners of La Grange Co. v. Culler, 236 Commissioners of Public Schools v. Covinty Commissionei-s, 13, 144 Commissioners' Court v. Tarver, 459, 462, 463, 487 Common Council of Albany, Ex parte, 324 Commonwealth v. Alleglieny Bridge Co., 654, 698 Commonwealth v. Allen, 685 Commonwealth «. Arrison, 653, 664, 685 xu TABLE OF CASES CITED. [KEFBRBNCB9 ABE Commonwealth v. Birchett, 603, 631 Commonwealth u. Bunn, 230 Commonwealth «. Burrell, 609, 614, 697 Commonwealth ®. Canal Commis- sioners, 5,9 Commonwealth v. City of Pitts- burgh, 680 Commonwealth c. Cluley, 605, 700 Commonwealth ». Cochran, 42, 46 Commonwealth e. Commercial Bank, 648, 737 Commonwealth «. Commissioners, 603, 701 Commonwealth e. Commissioners of Allegheny, 5, 9, 13, 15, 20, 41, 339, 382, 388, 460, 471, 472, 492 Commonwealtli e. Commissioners of Lancaster Co., 352, 459, 462, 554 Commonwealth «. Commissioners of Philadelphia, 5, 9, 49, 352 Commonwealth ®. Councils of Pittsburg, 329 Commonwealth c. County Commis- sioners, 10, 53, 346 Conimonwealth «. Court of Ses- sions, 230, 233 Commonwealth e. Cross Cut R. Co., 718 Commonwealth v. Dennison, 3, 4, 5, 124, 531, 583 Commonwealth v. Dillon, 632 Commonwealth v. District Court,217 Commonwealth v. Farmers' Bank, 654, 698 Commonwealth ». Fowler, 703 Commonwealth v. Frazier, 634 Commonwealth v. German Society, 294, 304, 472, 481 Commonwealth v. Gill, 736, 737 Commonwealth e. Graham, 653, 664 Commonwealth v. Guardians of the Poor, 304 Commonwealth v. Henry, 36, 825 Commonwealth v. James River Co, 660 TO SECTIONS.] Commonwealth ». Johnson, 356 Commonwealth ■«. Jones, 605, 614, 685. 731 Commonwealth v. Judges, 323 Commonwealth v. Judges of the Common Pleas, 188, 247 Commonwealth e. Justices of Fair- fax Co., 330, 237 Commonwealth . Aldrich, 49 Conrad v. Prieur, 229, 586 Conway, Expa/rte, 166 Cooper v. Stocker, 770, 772 Corporation v. Paulding, 196 Cortleyou e. Ten Eyck, 235, 584 Coster, Ex parte, 163 Gotten V. Ellis, 119 County of Boone o. Todd, 230, 333 County of Calaveras «. Brockway 79, 364, 453 County of Pike ®. State, 435, 431 County Court «. Robinson, 254 TABLE OP CASES CITED. xm [KEFEKENOES ABE TO SE0TI0K8.] County Court of Macoupin v. Peo- ple, 13, 391 County Court of Madison v. People, 891, 525 County Court of Warren «. Daniel, 188, 189 Cowell V. Buckelew, 253, 581 Cox u. St. Albans, 773 Coy V. City Council, 377 Craudall b. Amador Co., 339, 340 Crane, Mx parte, 191, 209 Crane v. Judge of Wayne Circuit Court, 209 Creager s. Meeker, 292, 214 Cripp's Case, 478 Crocker v. Old South Society, 300 Cromie, He, 227, 585 Croucher v. Collins, 796, 797, 800 Crowell i>. Lambert, 73, 74, 75 Curser «. Smith, 250 Curtis !). McCuUough, 288 Cuthbert v. Lewis, 230, 232 D. Daniel v. County Court of Warren, 27, 581 Danley v. White! ey, 80, 104 Danville & White Lick Plankroad Co. B. The State, 724 Darby v. Cosens, 7S1 Darley ». Queen, 593, 598, 599, 626 Dart V. Houston, 617, 618 Davenport, Ex parte, 24, 156, 157 Davis B. McKeeby, 66 Dawson v. Thruston, 230, 234 Day V. Callow, 363 Day V. Justices of Fleming Co. Court, 175 Decatur v. Paulding, 138, 129, 130 De Groot, Ex parte, 188, 195 Delacy «. Neuse River Navigation Co., 294, 295 Delavan ■». Boardman, 214 Dennett, Re, 120, 121 Dickerson v. Peters, 418, 420 Dickson v. People, 630, 759 Diggs -B. Prieur, 229, 586 Dinwiddio Justices v. Chesterfield Justices, 503 Dixon 11. Feild, 251 Dixon «. Judge of Second Circuit, 152, 154 Dodd V. Miller, 117, 484 Dodge V. Woolsey, 395 Dolby J). Remington, 800 Dominick «. Sayre, 395 Donnelly v. People, 603, 710, 711 Drew V. Judges of Sweet Springs, 67 Duke of Rutland v. Bagshaw, 800 Duncan v. Mayor of Louisville, 365, 366 Dunklin County v. District County Court, 1, 188, 194 Durant «. Supervisors of Washing- ton, 574 E. Earle's Case, 2, 407, 408 Early v. Mannix, 15, 177, 178 Echols, Ex pa/rte, 135 Edmunds, Ex pa/rte, 109 Edmundson v. Walker, 773 Elkins s. Athearn, 188, 189 EUicott «. Levy Court, 144 Ellis «. County Commissioners of Bristol, 56, 60, 61, 62, 63 Ellyson, Ex parte, 772 Elston, Ex parte, 170, 177 Enfield ti. Hall, 457 Engel v. Spear, 204 Etheridge v. Hall, 17, 210, 512 Evans «. Gwyn, 774 Farman v. Commissioners of Darke Co., 91 XIV TABLE OF CASES CITED. [BEFUBENCSS ABE TO SECTIONS.] Farwoll, Petition of, 244 Fellows V. Tait, 205 Felts V. Mayor, 73, 76, 437 Fireman's Insurance Co., Ex parte, 313 Fireman's Insurance Co. c. Mayor of Baltimore, 277 Fish «. Weatherwax, 249 Pitzhugh ». Custer, 459 Flagg 0. Mayor of Palmyra, 382, 384 Plagley v. Hubbard, 172, 177, 183 Fleming, Ex parte, 23, 274 Fogle V. Gregg, 15, 16 Forman ti. Murphy, 241 Forster v. Forster, 779 Forsyth ©. Justices, 267 Fotherby «. Metropolitan R. Co., 28 Fowler v. Peirce, 80, 101 Fox v. Whitney, 518 Francisco v. Manhattan Insurance Co., 225, 226, 584 Frank v. San Francisco, 377 Freas v. Jones, 247 Freeman e. Selectmen of New Haven, 24, 42, 44 Fremont . Taylor, 782, 783 Gulick D. New, 81, 238 Gunn's Adm'r. v. County of Pu- laski, 152, 156 Gunton v. Ingle, 658, 698 H. Habersham «. Savannah & Ogechet Canal Co., 310 Haight v. Turner, 509 TABLE OF OASES CITED. XV [rbferencbs are to sections.] Hall ». County Court of Audrain Co., 188 Hall V. Norwood, 766 Hall V. People, 432, 431, 433 Hall V. Selectmen of Somersworth, 824 Hambleton v. People, 785, 736 Hamilton v. State, 431 Hammar v. City of Covington, 413, 416 Hardcastle «. Maryland & Delaware R. Co., 31 Harpending v. Haight, 119 Harriman v. County Commission- , ers, 789 Harrington «. County Commission- ers, 436 Harris v. State of Georgia, 203 Harrison «. Emmerson, 240 Harrison i>. Williams, 880 Hartshorn v. Assessors of Ellsworth, 539 Harwood v. Marshall, 49, 464, 470, 472, 521 Hatch t>. City Bank of New Or- leans, 310 Hawkins v. Governor, 65, 130, 131 Hawkins v. More, 523, 538, 588 Hawley's Case, 489 Hayne v. Hood, 117, 484 Hays, Expa/rte, 156, 166 Heath, Ex parte, 53, 403 Heckart v. Roberts, 484 HefiFner v. The Commonwealth, 15, 431, 433, 433 Hempstead v. Underhill's Heirs, 80, 84 Henderson, Ex parte, 150 Hendricks v. Johnson, 356, 357 Henry, Ex parte, 156, 167 Hereford's Case, 478 Higgins V. City of Chicago, 431 Hill V. County Commissioners of Worcester, 418 Hillis V. Ryan, 113 Hogan V. Alston, 186 Hollister v. Judges, 275, 446, 544 Home Insurance Co. v. Scheffer, 552 Hommerich v. Hunter, 113 Hooten «. McKinney, 73, 76 Home V. Barney, 178 Hosner v. De Young, 39 Hough V. Western Transportation Co., 336, 337, 585 Houston V. The Levy Court, 505 Houston & Great Northern R. Co.?). Kuechler, 126 Houston etc. R. Co. v. Randolph, 32 Howard «. Pierce, 785, 804 Howe V. Commissioners of Crawford Co., 324, 418 Howell V. Crutchfield, 27, 581 Howland ji. Eldredge, 24, 42, 46, 47 Hoxie J). Commissioners of Somer- set, 439, 538 Hoyt, Ex parte, 188 Hudson V. Daily, 186 Huffi). Kimball, 114, 117 Hull V. Supervisors of Oneida, 349 Hullman v. Honcomp, 619, 677 Humboldt Co. v. County Commis- sioners of Churchill, 24, 34, 41, 334, 533 Huntington v. Smith, 379, 484 Hurst's Case, 316 Hussey v. Hamilton, 78 Hutson V. Lowry, 778 Hutt, Ex parte, 177 Illinois Central R. Co. v. Rucker, 330, 337 Indianapolis & Cincinnati R. Co. v. The State, 320 Inhabitants of Ipswich «. Petition- ers, 438 Inhabitants of Lexington v. Mulli- ken, 15, 389 Inhabitants of School District ». Clark, 143 Insurance Co. v. Adams, 191 XVI TABLE or CASrS CITED. [references are to sectioks.] Insurance Co. e. Wilson, 191 Irving V. Askew, 306 J. Jackson v. Maxwell, 777 Jackson «. Neale, 774 James e. Commissioners of Bucks Co., 15 Jamison «. Reid, 303 Jansen v. Davison, 159, 177, 182, 193 Jared v. Hill, 159, 255 Johnson, Sx parte, 156, 170, 173 Johnson v. Basqnere, 800 Johnson v. Boon, 800 Johnson v. Glascock, 255 Johnson v. Lucas, 7, 32 Johnson v. State, 457, 459 Jones, Ex parte, 177 Jones V. Allen, 247 Jones V. City of Little Rock, 166 Jones B. Justices of Stafford, 174, 188 Judd V. Driver, 8 Judges of Oneida Common Pleas b. The People, 34, 156, 160, 161, 188, 189 Justice v. Jones, 250 Justices of Cannon Co. v. Hooden- pyle, 377 Justices of Clarke v. The Paris etc. Turnpike Road Company, 383, 387 Justices of Jefferson Co. v. Clark, 70 Justices of Spencer Co. Court v. Harcourt, 70 Juxon V. Lord Byron, 774 K. Kanouse v. Martin, 337 Kaye v. Kean, 567 Keasey u. Bricker, 503 Keech v. Potts, 774 Keller v. Hyde, 360 Kemp V. Porter, 186 Kendall v. The United States, 3, 4, 34, 80, 89, 127, 129, 531, 589 Kennedy v. Woolfolk, 335 Kerr v. Trego, 685 Kidder v. Morse, 456 Kimball v. Lamprey, T3, 329 Kimhall v. Union Water Company, 30, 313 King, Ex parte, 186 King V. Amery, 755 King V. Baily, The, 480 King «. Baker, 199 King V. Bank of England, 15, 17, 309, 313 King V. Barker, 8 King V. Benchers of Grays Inn, 333 King V. Bettesworth, 171, 260 King v. Bishop of London, 71, 543 King V. Bishop of Oxford, 536, 538 King V. Bland, 281 King V. Bond, 659, 692 King V. Borough of Abingdon, 480 King V. Bower, 384 King V. Boyles, 721, King «. Brame, 701 King T. Brecknock Canal Co., 815 King V. Bristol Dock Company, 536 King V. Bristow, 96 King V. Broom, 774 King V. Churchwardens of Croy- don, 71 King V. Churchwardens of Fresh- ford, 138 King V. City of Canterbury, 2, 407, 408 King ■«. City of Chester, 489, 474, 478 King o. City of London, 601, 724, 746, 753 King V. Clarke, 53, 687, 693, 703, 748 King v. Commissioners of Sewers, 37 King V. Company of Free Fishers, 805 TABLE OF CASES CITEB. XVU [BEFBBENCEe ARE TO 8ECT10KB.] King V. Corporation of Bedford Level, 626, 670 Kinp- V. Cowell, 653 King B. Cudlipp, 653 King «. Dawes, 631 King V. Dayrell, 239 King «. Dr. Gower, 380 King i>. Edyvean, 570 King 1). Everet, 35 King «. Francis, 741 King V. Gaskin, 73 King V. Greame, 339 King V. Griffltlis, 301 King V. Hampton, 353, 581 King V. Harwood, 481, 691, 734 King V. Hewes, 153, 153 King I). Hull, 756 King e. Ingram, 73, 339 King V. Inhabitants of Frieston, 188, 193 King I). Justices of Cambridgeshire, 34, 156, 167 King V. Justices of Herefordshire, 636 King V. Justices of Kent, 349 King V. Justices of Nottingham, 543 King V. Justices of Suffolk, 153, 153, 154 King ». Kemp, 703 King i>. Knapton, 53, 403 King V. Lane, 733 King V. Licensing Justices, 43, 44 King V. Long, 473 King ®. Lords Commissioners, 137 King V. Loutlier, Sir William, 620 King V. Margate Pier Company, 538 King i>. Mayor of Abingdon, 337, 443, 543 King V. Mayor of Bristol, 410 King 1). Mayor of Cambridge, 463, 476, 477 King V. Mayor of Colchester, 15, 49, 50 King V. Mayor of Exeter, 517 King V. Mayor of Fowey, 573, 573 King V. Mayor of Grampond, 401 5 King n. Mayor of Kingston-upon- Hull, 439, 541 King V. Mayor of London, 403, 410 King e. Mayor of Lyme Regis, 468, 469, 471, 474, 478, 481 King 11. Mayor of Totness, 334 King V. Mayor of Tregony, 543 King V. Mayor of Wilton, 411 King 1]. Mayor of York, 406, 463, 468, 477, 478, 488, 523, 560 King V. Mayor & Aldermen of Lon- don, 458, 490 King T. Mayor & Burgesses of Don- caster, 467 King V. Mein, 734 King v. Merchant Tailors Co., 310 King V. Minister of Stoke Damerel, 54 King V. Mirehouse, 239 King V. Morris, 687, 709 King V. Mortlock, 686, 709 King V. Mountague, 239 King «. Newling, 692, 733 King V. Nicholson, 650 King V. Ogden, 653, 682, 699 King V. Orde, 744 King V. Oundle, 490 King V. Ouze Bank Commissioners 479 King ». Overseers of Shepton Mal- let, 538, 540 King V. Owen, 73, 74, 546 King B. Parish of Lowton, 465 King ». Parry, 683, 699, 701 King V. Patrick, 380, 396 King «. Payn, 73, 339 King v. Reeks, 747 King V. Rees, 53 King V. Saunders, 688 King V. Serle, 405, 756 King V. Severn & Wye R. Co., 18, 317 King V. Slatford, 403, 536 King V. Slythe, 734 King V. Stacey, 605, 658, 659, 668 693, 703 XVIU TABLE OF CASES CITED. [BEPEHENCES are to SECTIONa.] King ». St. Katherine Dock Com- pany, 488 King V. Stokes, 693 King V. Symmons, 680, 709 King 11. Tate, 688 King V. Taylor, 337, 443, 543, 747 King V. Town of Andover, 439 King V. Town of Colchester, 481 King V. Trevenen, 683, 687, 699, 703 King «. University of Cambridge, 281, 396, 543 King 1). Warlow, 638, 704 King V. Water Works Co., 10, 318 King V. Whaley, 380 King V. Wlieeler, 21, 35 King V. White, 682, 699 King V. Whitwell, 637 King V. Williams, 483, 754 King v. Wilts Canal Co., 310 King 11. Winchester, 49 King V. Woodman, 631 King «. Yorkshire, 188, 193 King & Queen v. St. Jolin's College, 280, 396 King William Justices v. Munday, 15,16 Kinloch v. Harvey, 765 Kisler v. Cameron, 56, 60 Koon, Ex parte, 188, 189 Kynaston v. The Mayor & Aldermen of Shrewsbury, 458 L. Ladd v. Tudor, 337, 585 Ladue «. Spalding, 517 La Farge, Ex parte, 509 Laird o. Abrahams, 343 Lamb ». Lynd, 401, 685 Lansing v. County Treasurer, 377, 398, 394, 590 Lawrence, Ex parte, 157, 186 Lawrence «. Warbeck, 778 Layton «. The State, 557 League v. De Young, 39 Lee's Case, 71, 303 Lee V. Oxenden, 71 Leigli's Case, 332 Leland v. Rose, 15, 177 Leman «. Goulty, 781 Leonard v. House, 41 Lessee of Lawlor v. Murray, 199 Levy V. Inglish, 460 Lewis V. Barclay, 19, 188, 190 Life & Fire Insurance Co. v. Adams, 149, 533 Life & Fire Insurance Co. v. Wil- son's Heirs, 230, 335, 534 Lindsey v. Attorney General, 600, 603, 697 Lindsey v. Auditor of Kentucky, 337, 441, 443 Lindsey v. Luckett, 67 Little 1). Morris, 188 Lloyd V. Brinck, 335, 349, 534 Louisiana v. Judge of Parish Court, 156, 168 Louisiana College v. State Treas- urer, 115 Louisville & New Albany R. Co. v. The State, 15, 16 Lowe, Ex parte, 186 Louther's Case, 697 Ludlum «. The Fourth District Court, 336 Lunt ». Davison, 457 Lutterloh s. Commissioners of Cumberland Co., 338, 369, 377 Lydston v. Mayor of Exeter, 480 Lynch, Ex parte, 15, 339, 341 M. Macarty, Succession of, 15, 177 Maddox v. Graham, 337, 383, 441, 445 Madison County Court v. Alex- ander, 330, 233 Magee v. Supervisors of Calaveras, 63 Magruder v. Swann, 65, 119 Mahone, Ex parte, 266 TABLE OF CASES CITED. XIX [KEFEHKNOES ABB TO SECTIONS.] Manns o. Glvens, 330, 234 Manor i). McCall, 139, 230, 283 Mansfield ». Puller, 15, 339 Many, Ex pa/rte, 24, 156, 159, 191, 193 Marathon o. Oregon, 365 Marbury ®. Madison, 29, 98, 99, 119, 127, 587, 589 Marshall «. State, 177 Martin, Ex parte, 246 Mason v. School District, 37 Mauran v. Smith, 41, 120, 122 Mayo «. James, 768, 803 Mayor ®. Lord, 337, 369, 377, 380, 384, 393, 395, 396, 443, 543 Mayor v. Roberts, 418, 419 Mayor v. State of Georgia, 427 Mayor of Coventry's Case, 572 Mayor of Penryn, Be, 627, 747, 760 Mayor of Vicksburg o. Rainwater, 57( 403 McBane ». The People, 8, 511 McCIung v. Silliman, 98, 99, 589 McCluny c. Silliman, 99, 589 McCoy 0. Justices of Harnett Co., 358, 480, 533 McDiarmid v. Fitch, 331 McDonald v. Elfe, 771 Mclntire ». Wood, 39, 98, 99, 589 M'Kenna «. Commissioners of Roads, 800 McKensie v. Ruth, 508, 537 McMeechen, Ex parte, 773 McMillen e. Smith, 156, 166 Menard v. Shaw, 40 Merced Mining Co. n. Fremont, 166 Midberry ». Collins, 304 Middleton's Case, 3, 291 Middleton «. Low, 119 Miles V. Bradford, 118 Miller n. English, 652 Miltenberger d. St. Louis Co. Court, 152, 155 Mitchell v. Hay, 80, 85 Mitchell V. Spear, 363, 484 Morgan, Ex pa/rte, 163, 186 Morgan v. Commonwealth, 369, 373 Morgan v. Register, 27, 581 Morris, Ex pa/rte, 343, 513 Morris «. Underwood, 633 Morse, Re, 159 Mottu c. Primrose, 384 Mumma d. Potomac Company, 648 Murphy v. Farmers Bank, 614, 654, 697, 698, 731 Murphy v. Wentworth, 503, 513 N. Napa Valley R. Co. v. Supervisors of Napa Co., 389 Nelson, Ex pa/rte, 156, 159, 193 Neuse River Navigation Co. b. Commissioners of Newbern, 399 Neuse River Navigation Co. ». Commissioners of New-Berne, 483 New Jersey v. Wilson, 395 Newman, Ex pa/rte, 19, 188, 190, 191 Newman «. Justices of Scott Co. 200, 353, 582 Nichols ». The Comptroller, 104, 105 Norris v. The Irish Land Company, 314 Northington, Ex parte, 334 North Western N. C. R. Co. c. Jenkins, 80, 86 O. Oakes «. Hill, 9 . Ohio «. Wood, 313 Ohio & Indiana R. Co. 'o. Commis- sioners of Wyandot, 33 Orosco ». Gagliardo, 335, 584 Oroville & Virginia R. Co. ■». Super- visors of Plumas, 13, 41, 389, 453 Ortman e. Dixon, 166 Ostrander, Ex pOA-te, 19, 188, 189, 190 XX TABLE OF CASES CITED. [bbfebences Pacific Railroad 11. The Governor, 131 Paine, Ex parte, 387 Parker «. Gierke, 774 Parkinson's Case, 380, 396 Patrick's Case, 380, 396 Paxton V. Knight, 774 Peats' Case, 493, 536 Pegram «. Commissioners of Cleave- land, 369, 383, 441, 444 People, Ex parte, 616 People V. Abbott, 718 People V. Adam, 34, 43, 46, 47 People V. Assessors of Barton, 140, 553 People V. Attorney General, 34, 43, 45 People V. Auditor General, 139 People ». Auditors of Wayne Co., 346, 350, 351 People ». Bacon, 187 People v. Baker, 307 People V. Bank of Hudson, 661, 666, 667 People ®. Bank of Niagara, 667, 734 People V. Bank of Washington, 667, 734 People V. Bartlett, 639, 713, 753 People V. Bell, 101, 395 People V. Bennett, 369, 374 People ®. Bissau, 130, 133 People «. Board of Apportionment, 345 People V. Board of Education of Detroit, 333, 438 People ■». Board of Metropolitan Police, 4, 494, 559 People V. Board of Police, 409 People v. Booth, 15, 339, 343 People «. Bradley, 357 People u. Brennan, 34, 43, 46, 48, 333, 341, 533, 553 People e. Bristol & Rensselaerville Turnpike Co., 593, 651 ARE TO SECTIONS.] People ». Brooks, 80, 101, 513, 538, 539 People v. Canal Board, 94 People V. Carpenter, 695 People V. Champion, 88 People V. Chicago & Alton R. Co., 14, 330 People V. Cicott, 740 People V. Circuit Judge of Branch Co., 187 People V. Circuit Judge of Third Circuit, 187, 191 People ». City of Cairo, 365, 511 People ». City of Chicago, 31, 507 People V. Clark, 710 People V. Clark Co., 339, 340 People v. Clute, 743 People V. Collins, 34, 38, 43, 44, 80, 334, 413, 481, 488 People V. Columbia Common Pleas 156, 160 People «. Commissioner of High •ways, 433, 475 People v. Commissioner of State Land Office, 80, 84, 537 People ■». Commissioners of High- ways, 40, 434, 563 People 13. Commissioners of Salem, 483 People V. Common Council of Brooklyn, 413 People V. Common Council of De- troit, 49, 51, 404 People V. Common Council of New York, 334, 440, 443 People V. Contracting Board, 91, 93, 94 People v. Cook, 363, 638, 639 People V. Corporation of Brooklyn, 10, 510 People 0. Corporation of New York, 49, 50 People «. Cover, 63 People «. Croton Aqueduct Board, 93,94 People 11. Curyea, 9, 433 TABLE 01' CASES CITED, XXI [bbferbnces are to sections.] People J). De La Guerra, 250, 351 People v. Delaware Common Pleas, 269 People 1!. De Mill, 662, 704 People®. Doesburg, 741 People V. Dowling, 219 People V. Edmonds, 356 People V. Everitt, 558 People ®. Fay, 92 People V. Finger, 496 People «. Flagg, 351 People «. Fleming, 134 People «. Fletcher, 80, 81, 338 People ®. Fogg, 359 People V. Forquer, 9, :^3, 49, 50, 51 People®. Gale, 80, 81, 82 People V. Gillespie, 603 People V. Gilmer, 7, 259 People e. Goodwin, 639 People V. Green, 94, 358 People V. Halsey, 431, 433 People V. Hartwell, 633 People V. Hatch, 4, 7, 9, 15, 26, 123, 135, 449 People V. Hawkins, 15 People v. Haws, 356, 357 People V. Head, 10, 73, 74 People V. Hilliard, 10, 60, 61, 62, 449,450 People ». Hills, 632 People «. Hillsdale & Chatham Turnpike Co., 617, 649, 651 People 11. Holden, 624 People B. Hubhard, 15 People V. Inspectors of State Prison, 6,431,432 People V. Jameson, 202 People B. Johnson, 345 People V. Jones, 624 People V. Judge of Chautanque Common Pleas, 163 People V. Judge of Jackson Circuit Court, 235, 236, 227, 584, 585 People v. Judge of Probate, 156, 171 People V. Judge of Wayne Co. Court, 153, 154, 187 People ». Judges of Dutchess Com- mon Pleas, 173, 188, 191 People V. Judges of N. Y. Common Pleas, 335, 336, 337, 584, 585 People V. Judges of Oneida Com- mon Pleas, 24, 156, 163 People ». Judges of Ulster, 551 People i>. Judges of Washington, 503, 569 People i>. Judges of Westchester, 314 People V. Judges of West Chester, 301 People V. Justices of Delaware Com- mon Pleas, 318 People V. Kildufif, 73, 74, 339, 461 People ». Kingston & Middletown Turnpike, 648, 651 People ®. Kip, 733 People ». Lacoste, 639 People V. Lawrence, 360 People V. Lee, 302, 583 People v. Loomis, 754 People v. Loucks, 80, 81, 82 People V. Manhattan Company, 727 People V. Manhattan Gas Light Co., 390 People V. Marine Court, 771, 778 People V. Matteson, 60, 63 People V. Mayor of Bloomington, 413, 414, 443 People ». Mayor of Chicago, 9, 10, 449 People -D. Mayor of New York, 15, 18, 20, 94, 339, 341, 638 People ■». Mayworm, 639, 713 People V. McClay, 133 People V. Mead, 382, 385, 387 People V. Mechanics' Aid Society, 394 People V. Medical Society of Erie, 287, 394, 295 People V. Miles, 639, 712 People V. Miller, 733 People V. Miner, 80, 83, 492 People v. Mississippi & Atlantic R Co., 603, 710, 711, 738 XXI 1 TABLE OF CASES CITED. [BEFERENCBS ABE TO SECTIONS,] People V. Monroe Oyer and Ter- miner, 268 People V. Moore, 188 People i>. New York Common Pleas, 24, 156, 157, 159, 193 People 'u. ^Niagara Common Pleas, loO, 162 People «. Norton, 272 People V. Nostrand, 561 People V. Ohio Grove Town, 389, 473, 492 People V. Olds, 77 People ». Olmsted, 140 People V. Opdyke, ;j-'>o, ;io 1 People V. Pacifi(; Mail Steamship Co., 308 People «. Palmer, 356 People V. Pearson, 152, 301, 308, 517, 530, 553, 555, 565, 569 People «. Pease, 629, 638, 639 People D. Percells, 738 People V. Perry, 80, 88 People V. Phillips, 757 People V. Pratt, 188 People V. President & Trustees of Brooklyn, 499, 557 People V. Ransom, 493, 538 People v. Regents of University, 54, 431, 433 People B. Rensselaer & Saratoga R. Co., 727, 753 People B. Richardson, 710, 733, 735 People V. Ridgley, 620, 712 People V. Rivers, 60, 61, 62, 63 People «. Russell, 153, 155 People 11. Ryder, 706, 710 People V. Sackett, 741 People V. Salomon, 9, 15, 21, 32, 373, 449, 451, 455, 493, 534 People V. Secretary of State, 104, 106, 117 People V. Seneca Common Pleas, 369 People V. Seward, 770, 772 People V. Sexton, 15, 24, 156, 173, 177, 183 People V. Seymour, 550 People «. Shearer, 80, 87, 139 People ?). Smith, 80, 104, 110 People 1). State Insurance Co., 277 People v. State Treasurer, 20, 400 People ji. Steele, 283, 557 People V. Stevens, 57, 77, 78 People i>. St. Stephen's Church, 398 People V. Superior Court of New York, 156, 157, 161, 163, 168, 188 People V. Supervisors of Albany, 346, 349 People v. Supervisors of Chenango, 15, 339, 343, 869, 375 People V. Supervisors of Columbia, 369, 518 People «j. Supervisors of Delaware, 348, 349, 535 People «. Supervisors of Dutchess, 533, 539 People V. Supervisors of Pulton, 454 People V. Supervisors of Greene, 10, 49, 57, 140 People «. Supervisors of Herkimer, 369, 375 People V. Supervisors of Jackson, 398 People V. Supervisors of Livingston, 345 People K. Supervisors of Macomb, 348, 350, 535 People V. Supervisors of New York, 346, 348, 535 People V. Supervisors of Otsego, 80, 146, 369, 375 People 11. Supervisors of Queens, 782 People V. Supervisors of San Fran- cisco, 327, 348, 349, 413, 480, 527, 535 People «. Supervisors of Vermilion, 371 People 11. Supervisors of Westchea ter, 14, 140, 537 People n. Sweeting, 605, 638, 633, 638 People V. Taylor, 80, 90 TABLE OF CASES CITED. XXlll [RBFBRENCB8 ARB TO SECTIONS.] People V. Thompson, 10, 15, 339, 341, 655, 656 People V. Throop, 308, 311, 506, 545, 553, 557 People V. Tibbets, 653 People V. Tioga Common Pleas, 509 People V. Town of Fairbui^, 401 People D. Township Board, 421 People V. Treasurer of Wayne Co., 506 People V. Tremain, 14 People V. Turner, 330 People V. Ulster Common Pleas, 157 People V. Utica Insurance Co., 610, 648, 650, 652, 752 People V. Vail, 433 People V. Van Cleve, 723 People ». Van Slyck, 638, 760 People V. Waite, 605, 646, 731, 738 People 11. Walker, 310 People «. Warfield, 31, 23 People V. Wayne Circuit Court, 771, 776 People V. Weston, 173, 188, 191 People V. Whitcomb, 617, 618, 728 People V. White, 435 People V. Wiant, 31 People V. Williams, 156, 173 People V. Wood, 15, 339, 342, 345 People V. Woodbury, 713 People V. Works, 762, 783 People v. Yates, 120, 133, 440, 504 Peralta v. Adams, 15, 159, 177, 182, 193 Person ». Warren R. Co., 142 Persons, Bx parte, 327 Peterson, Bx parte, 767, 771 Pickett, Ex parte, 136 Pile, Expm-te, 166 Piuckney v. Henegan, 557 Piqua Branch v. Knoop, 395 Poe, Be, 775 Polk V. Plummer, 437 Pool V. Gardner, 774 Postmaster General v. Trigg, 24, 156, 158 Poultney, Bx parte, 24, 156, 157 Pratt v. Meriden Cutlery Co., 307 Prescott «. Gonser, 107, 355 Price V. Harned, 514, 548 Prickett, Be, 335, 336 Prignitz ii. Fischer, 780 Proprietors Kennebunk Toll Bridge, Be, 431 Putnam, Bx parte, 186 Queen v. Ambergate etc. R. Co., 315 Queen v. Anderson, 631 Queen v. Archdall, 657 Queen v. Baldwin, 550 Queen v. Birmingham etc. R. Co., 517 Queen v. Birmingham & Gloucester R. Co., 14 Queen v. Blagden, 718 Queen v. Blanshard, 188, 189 Queen v. Blizard, 633 Queen v. Bristol Dock Co., 315 Queen v. Bristol & Exeter R. Co., 315 Queen v. Caledonian R. Co., 550 Queen v. Chapman, 517 Queen v. Commissioners of Land Tax, 138 Queen v. Cory, 507 Queen v. Deptford Pier Co., 318 Queen u. Derby, 15, 49 Queen v. Derbyshire etc. R. Co., 312 Queen v. Dolgelly Union, 447 Queen ®. Eastern Counties R. Co., 18, 19, 815, 318, 536 Queen v. East & West India Docks etc. R. Co., 548 Queen v. Gamble, 515 Queen v. Great Western R. Co., 315, 316, 520 Queen «. Greene, 631 Queen v. Guardians of the Poor, 626 Queen v. Guardians of St. Martins, 401 XXIV TABLE OF CASES CITED. [BBPEHENCEB ABE TO SECTIONS.] Queen v. Harland, 24, 156 Queen v. Heathcote, 3 Queen v. Hopkins, 546 Queen v. Hull & Selby R. Co., 15, 283 Queen v. Hungerford, 645 Queen v. Justices of Kesteven, 151 Queen -o. Justices of Middlesex, 152 Queen v. Kendall, 281 Queen v. Ledgard, 549, 571 Queen «. Mayor of Dover, 472 Queen v. Mayor of Hereford, 52, 402, 472 Queen «. Mayor of Leeds, 402 Queen v. Mayor of New Windsor, 495 Queen v. Mayor of Pomfret, 464, 477, 488 Queen v. Mayor of Stamford, 493, 533 Queen «. Mousley, 653 Queen v. Norwich Savings Bank, 14 Queen v. Old Hall, 34, 156, 257 Queen «. Pepper, 655 Queen v. Pickles, 515 Queen v. Pitt, 31 Queen v. Quayle, 655 Queen v. Raines, 473 Queen v. Rochdale & Halifax Turn- pike, 315 Queen v. Select Vestrymen of St. Margaret, 383 Queen v. Slatter, 655 Queen ■v. Southampton, 80, 89, 471 Queen ». Southeastern R. Co. 330 Queen «. Taylor, 670 Queen v. Thomas, 383 Queen «. Trustees of Swansea Har- bor, 318 Queen v. Twiss, 779 Qaeen «. Twitty, 481 Queen v. Tyrrell, 747 Queen v. Victoria Park Co., 285 Queen v. Wardens of the Parish of St. Saviour, 382 Queen v. York, Newcastle & Ber- wick R. Co., 315 Queen v. York & North Midland R. Co., 315, 316 Quimbo Appo «.. People, 762, 781 R. Ramsay v. Court of Wardens, 778 Ramsey «. Carliart, 708 Randolph v. Stalnaker, 230, 334 Reading v. Commonwealth, 15, 413 Rees V. City of Watertown, 393, 394, 590 Reese v. Lawless, 785 Reeside «. Walker, 94, 139 Regina v. Diplock, 715 Regina v. Guise, 483 Regina v. Hampton, 626 Regina v. Ipswich Corporation, 481 Regina v. Jones, 696 Regina v. Justices of Durham, 644 Regina v. Lancashire & Yorkshire R. Co., 316 Regina v. Lane, 481 Regina v. Lockhouse, 631 Regina v. Mayor of Derby, 440 Regina v. Mayor of Hereford, 337, 443, 542, 543 Regina v. Mayor of Norwich, 463 Regina -e. Mayor & Aldermen of Norwich, 477, 488 Regina «. Midland Counties & Shan- non Junction R. Co., 313 Regina i>. Parish of Goole, 286 Regina v. Thirlwin, 701 Regina v. Twitty, 483 Regina v. Vestry of St. Lukes, 417 Respublica v. Clarkson, 165 Respublica «. Guardians of the Poor, 325, 326 Rex V. Abingdon, 464 Rex V. Askew, 1, 2 Rex v. Barker, 1, 71 Rex V. Biddle, 747 Rex V. Bishop of Durham, 15 TABLE OF CASES CITED. XXV [BEVBKEKOES ABE TO SSOTIONS.] Rex s. Blooer, 71, 297 Kex V. Boyles, 625 Rex «. Brown, 433 Rex V. Ohurcliwardens of Taunton St. James, 476 Rex V. City of London, 679 Rex ®. Clapham, 73, 74 Rex V. Commissioners of Land Tax, 483 Rex V. Corporation of Maiden, 467 , Rex V. Corporation of Wigan, 401 Rex V. Daws, 659, 692 Rex V. Day, 688 Rex V. Dean and Chapter of Dublin, 52, 556 Rex V. Dicken, 692 Rex V. Foster, 704 Rex V. Grimes, 717 Rex V. Guardians of Great Farring- don, 330 Rex «. Hodge, 702 Rex ». Justices of Herefordshire, 483 Rex V. Justices of West Riding of Yorkshire, 438 Rex 4). Justices of "Worcestershire, 162 Rex V. Lambert, 481 Rex ■». Lee, 71 Rex B. Leigh, 629, 712, 717, 747 Rex V. Liverpool, 468, 472 Rex V. Lord of Milverton, 465 Rex e. Mayor of Abingdon, 480, 543 Rex V. Mayor of Axbridge, 410 Rex V. Mayor of Cambridge, 488 489 Rex V. Mayor of Coventry, 412 Rex «. Mayor of Hertford, 735, 746 Rex V. Mayor of Norwich, 543 Rex V. Mayor of Oxford, 2, 407, 412 Rex V. Mayor of Wilton, 411 Rex V. Mayor & Aldermen of Lon- don, 476 Rex V. Penrice, 467 Rex V. Philips, 719 Rex «. Reynell, 620 Rex V. Sparrow, 483 Rex V. Stacey, 438 Rex 1). Stephens, 692 Rex V. Tod, 339 Rex «. Town of Liverpool, 407, 408 Rex V. Trinity House, 735, 746 Rex «. Vice Chancellor of Ciun- bridge, 281 Rex V. Wardroper, 603, 681, 692 Rex V. White, 433 Rex V. Wildman, 73, 306, 541 Rex V. Williams, 602, 749 Rex V. Windham, 281 Rex V. Worcester & Birmingham Canal, 314 Reynolds ■». Baldwin, 694 Rhodes v. Craig, 251 Richardson, Bx parte, 800 Riggs V. Johnson County, 393 Rioters Case, 199 Boiibins, Ex parte, 272 Roberts, Ex pwrte, 156, 160 Roberts «. Holsworth, 152 Robinson d. Supervisors of Butte, 882, 388 Rodgers e. Alexander, 82 Rodman «. Justices of Larue Co., 369 Rogers, Ex parte, 553 RoUersville & Portage Turnpike ■«. Commissioners of Sandusky Co., 371 Root, Ex parte, 518 Rose «. County Commissioners, 64 Rowland, Expa/rte, 177, 270 Runkel b. Winemiller, 71, 297 Rusch B. Supervisors of Des Moines Co., 394, 590 Russell «. Elliott, 236 S. Sanders, Ex pa/rte, 433 Sanders v. Nelson Circuit Court, 250 Sanger ». County Commissioners of Kennebec, 431, 433 XXVI TABLE OF CASES CITED. [BEFEBBHCES ABE TO SSCTIOKS.] Sasseen v. Hammond, 770, 771 School Directors «. Anderson, 32, 141 School Inspectors of Peoria ». Peo- ple, 4, 21, 488 Secombe, Sx parte, 317, 318, 220 Secretary v. McGarrahan, 24, 43, 43, 128, 132, 441 Selma & Gulf R. Co., Sx parte, 24, 80, 112, 389, 463, 560 Seymour i). Ely, 42, 46, 47 Shaddeu v. Sterling's Adm'rs., 186 Shelby v. Hoffman, 15, 177, 225, 236, 584 Shelby Co. Court v. Cumberland & Ohio R. Co., 382 Sherman «. Clark, 6 Shipley v. Mechanics' Bank, 313 Shoolbred v. Corporation of Charles- ton, 369, 370 Shrever -o. Livingston Co., 502, 513 Sights V. Yarualls, 174, 503 Sikes V. Ransom, 199, 200 Silver v. The People, 80, 83, 449,453 Silverthorne v. Warren R. Co., 488 Simpson i>. Register of Land Office, 80.83 Singleton b. Commissioners, 67, 68 Sinnickson ii. Corwine, 347 Skaggs, Ex parte, 503, 513 Small, ^^^arte, 170, 177 Smith, Bx parte, 626, 767, 776 Smith's Case, 753 Smith c. Carr, 581 Smith i>. Commonwealth, 864 Smith 0. Erb, 71, 297 Smith 1). Jackson, 358, 589 Smith -D. Judge of Twelfth District, 173 Smith V. Langley, 774 Smith «). Mayor of Boston, 325, 328 Smith 11. Moore, 235, 241 Smith D. Slate, 753 Smyth V. Titcomb, 143 Society v. Commonwealth, 293, 304, 471, 472, 481 South Carolina K. Co. v. Ells, 777 South Carolina Society «. Gurney, 800, 808 Spraggins v. County Court of Hum- phries, 227, 585 Springfield v. County Commission- ers, 460, 461 Squier v. Gale, 153 Stadford ». Neale, 795, 797 Staflford v. Union Bank of Louisi- ana, 368 State ex rel. Leonard, 790 State ex rel. Nabor's Heirs, 186 State 11. Acting Board of Aldermen, 519 State 11. Albin, 53 State V. Allen, 618, 615 State V. Ashley, 593, 600, 602, 603, 609, 613 State I). Bailey, 8, 13, 41, 56, 436 State 11. Baird, 551 State V. Barker, 80, 94 State 11. Beecher, 629, 713, 729 State V. Biddle, 258, 581 Stale V. Boal, 630, 713 State V. Board of Education of Fond du Lao, 93 State V. Board of Equalization, 454 State !). Board of Liquidators, 24, 43 State V. Board of Trustees, 377 State v. Bouebrake, 353 State V. Bonner, 43, 46 State V. Bordelon, 80, 104, 113 State V. Bowen, 164 State 11. Bowker, 145 State V. Bradford, 684, 742, 758 State 11. Brown, 605, 606, 687, 661, 676, 735, 753, 758 State V. Buckles, 351, 353 State V. Burbank, 12, 36, 358, 362 State V. Burgoyne, 230 State 1). Burnett, 605, 607, 781, 761 State v. Buskirk, 616, 707 State 11. Canal & Claiborne Streets R. Co., 278 State 11. Carney, 12, 59 TABLE OF CASES CITED. XXVll [kbfbbsnces abb to sections.] State V. Centreville Bridge Co., 605 State «. Chamber of Commerce, 294, 305 State V. Champlin, 633 State V. Chase, 118, 119 State V. Cincinnati Gas Light Co., 661 State v. Circuit Judge of Mobile, 60, 61 State ®. City of Charleston, 690 State V. City of Cincinnati, 484 State V. City of Davenport, 369 State ». City of Keokult, 421 State V. City of Lyons, 689 State V. City of Madison, 229, 337, 377, 379, 380, 441, 443, 586 State V. City of Milwaukee, 369, 370, 443, 539 State V. City Council of Eacine, 377, 379 State V. Clark, 103, 108, 113 State V. Clark Co. Court, 769 State V. Collins, 255 State !). Columbia & Augusta R. Co. 773 State V. Commercial Bank, 649, 710, 730 State V. Commercial Bank of Man- chester, 661 State u. Commissioners of Clinton Co., 382 State V. Commissioners of Eureka, 58 State V. Commissioners of Franklin Co., 360 State V. Commissioners of Hamilton Co., 91 State v. Commissioners of Perry, 430, 581 State V. Commissioners of Printing, 91 State V. Commissioners of Roads, 198, 782, 800 Slate ». Commissioners of School Fund, 33 State V. Common Council of Mil- waukee, 377, 455 State V. Common Council of Orange, 424 State v. Common Council of Rail- way, 401, 403 State V. Common Council of Water- town, 67, 69 State «. County Court of Howard, 15, 25 State V. County Court of Texas Co., 230, 231 State V. County Judge of Davis Co., 436 State V. County Judge of Floyd, 15, 339, 340 State 11. County Judge of Johnson Co., 548, 562 State v. County Judge of Marshall, 11, 13, 41, 56, 481, 433 State V. Court of Common Pleas, 228, 584 State i). Curler, 177, 225, 226, 584 State V. Davis, 41 State «. District Township of Du- buque, 561 State «. Dougherty, 35 State i>. Dousman, 759 State V. Draper, 80, 108, 108, 112, 113 State V. Dubuclet, 12, 86, 858, 862 State 1). Duflfy, 832 State V. Dunlap, 67 State v. Dunn, 49 State «. Eaton, 451 State V. Edwards, 792 State V. Elkinton, 568 State V. Elmore, 200, 258, 583 State «. Elwood, 521, 523 State V. Ely, 230, 331 State 1). Engleman, 15, 177, 184 State B. Evans, 630 State V. Everett, 450 State V. Farris, 664 State V. Fisher, 605, 638, 633 State V. Foote, 615 XXVlll TABLE OF CASES CITED. [BBFBBENCES ARE State V. Freeholders of Essex, 418, 419 State V. Gamble, 80, 104, 105 State V. Gardner, 640 State v. Gates, 337, 441, 443 State 11. Georgia Medical Society 293, 294, 395 State v. Gibbs, 56, 60, 61, 63, 519 State i). Gleason, 611, 629, 697, 712, 737 State V. Goll, 73, 306, 540 State V. Governor, 41, 65, 120, 121, 450 State t). Graves, 426 State V. Griscom, 480 State ». Haben, 434 State «. Hall, 300, 201, 258, 582 State V. Hamilton, 433 State 11. Hammell, 374 State 0. Hardie, 603 State V. Harris, 369, 373, 716 State v. Hartford & N. H. K. Co. 817 State V. Harvey, 566 State V. Hastings, 521, 522 State ■!). Hays, 116 State V. Hixon, 643 State ». Hoefliuger, 367 State v. HoUiday, 415 State s. Howard Co. Court, 330, 231, 533 State ». Hudnall, 770, 800 State V. Hungerford, 804 State V. Hunton, 629 State V. Inhabitants of Strong, 416, 481, 432 State J). Jacobs, 633 State V. Johnson, 613, 756 State t>. Jones, 472, 513, 517, 527, 530, 538, 540, 551 State 11. Judge of Commercial Court, a51, 765 State n. Judge of County Court, 770 State v. Judge of Eighth District Court, 346, 789 State «. Judge of Fifth District Court, 346 TO BECTI0N8.] State «. Judge of Fourth District Court, 15, 177, 185, 346, 770, 771, 780, 789 State 11. Judge of Fourth Judicial District, 765, 788 State n. Judge of Kenosha Circuit Court, 159, 188, 193 State V. Judge of Ninth Circuit, 64 State 0. Judge of Orphan's Court, 148 State v. Judge of Second District Court, 177, 246 State v. Judge of Sixth District Court, 15, 177, 181, 246 State v. Judge of Third District Court, 248 State V. Judge of Thirteenth Dis- trict, 225, 584 State «. Judges of Salem Pleas, 230, 237 State V. Justices of Bollinger Co. Court, 856, 357 State ». Kirkley, 335 State «. Kispert, 23, 363 State v. Knight, 349 State ®. Kupferle, 603, 671, 710, 712 State v. Lafayette Co. Court, 380, 331 State v. JLarrabee, 305, 261 State ». Lawrence, 60, 62, 63, 603, 707 State v. Layton, 73, 76 State V. Lean, 79, 449, 460, 492, 521 State V. Lehre, 32, 41, 658, 709 State v. Lewis, 826, 645 State V. Lingo, 608 State V. Lusitanian Portugese So- ciety, 801 State ». Lynch, 37, 862 State V. Magill, 80, 87, 145 State V. Marlow, 617 State ». Mayhew, 142 State J). McArthur, 82, 173, 197, 493 State D.McAuliffe, 15, 177, 179,243 State ». McBride, 612 State ». McCriUus, 356, 361 State 11. McDaniel, 673, 674, 715, 730 State v. McDiarmid, 708, 713 TABLE OF CASES CITED. XXIX [XlEFBBEXGEe ABE TO SECTIONB.] State v. Mclver, 313 State v. McMillan, 480 State V. Meadows, 80, 83 State ■». Meiley, 254 State V. Merry, 611, 613 State V. Messmore, 610, 615 State V. Mills, 249, 373 State V. Mississippi, Ouachita & Red River R. Co., 734 State V. Mitchell, 171, 177, 181 State V. Moffitt, 697, 706 State v. Morgan, 177, 181 State V. Moseley, 103, 118 State V. Mount, 351, 358, 364 State V. Nathan, 771, 781 State V. Noggle, 303 State V. Northeastern R. Co., 319 State V. Palmer, 713 State V. Paterson & Hamburg Turn- pike Co., 654, 697, 698 State 11. Paul, 600, 635 State V. Pawtuxet Turnpike Co., 631 State v. Perrine, 14, 144 State «. Pitot, 77 State V. Police Jury of Jefferson, 418 State V. Ralls County Court, 757 State V. Real Estate Bank, 613, 647, 666 State V. Ridgell, 781 State 1). Ridgley, 617, 618 State «. Robinson, 34, 43, 46, 48, 56 State V. Rodman, 49, 57 State V. Rombauer, 813 State V. Saxton, 79 State ®. Schnierle, 605, 633, 697 State i>. Schofleld, 551 State D. School Land Commission- ers, 530 State V. Secretary of State, 34, 80, 104, 110 State V. Shaw, 24, 42 State V. Sheldon, 215 State V. Sherman, 663 State V. Slavin, 521, 533 State V. Smith, 253, 869, 374, 549, 566, 574 State V. Steers, 688, 760 State V. Stewart, 593, 599, 608, 616, 707 State «. St. Louis Court of Criminal Correction, 204 State ». St. Louis Insurance Co., 609, 613 State V. Stockwell, 79 State V. Stone, 613 State r>. Supervisors of Beloit, 37, 144, 339, 377, 380, 440, 504, 586 State u. Supervisors of Mineral Point, 517 State V. Supervisors of Sheboygan, 15, 16, 839, 455 State B. Supervisors of Washington, 9, 428 State V. Tappan, 96, 373 State V. Taylor, 177, 180, 617, 638, 643, 754 State V. Third District Court, 185 State v. Thompson, 103, 113 State V. Todd, 201, 202, 505 State t. Tolan, 605, 682, 683 State V. Town Council of Oahaba, 689 State D. Towns, 120 State V. Treasurer of Callaway Co., 356 State V. Trustees of Wabash & Erie Canal, 285 State V. Trustees of Warren, 14, 886 State V. Turk, 614 State V. Union Township, 497 State V. Wadkins, 617, 637 State V. Wakely, 771 State V. Warmoth, 43, 130, 133 State V. Warren Foundry and Ma^ chine Company, 314 State V. Washburn, 173 State V. Waterman, 87 State B. Watts, 156, 160, 167 State V. West Wisconsin R. Co., 610 XXX TABLE OF CASES CITED. [refkebkcbs are to sections.] State B. Wilmington Bridge Co., 319, 457, 459, 507 State V. Wilmington City Counoil, 403 State V. Wilson, 344 State ». Wright, 178, 188, 191 State i>. Wrotnowski, 65, 80 State «. Yeatman, 354 State 1). Zanesville Turnpike Co., 35, 321, 435 State of Florida ». Kirke, 318 State of Georgia v. Powers, 211 State Bank «. State, 603, 755, 758 State Bank of Indiana «. State, 672 Steward v. Eddy, 360 St. John's College v. Todington, 798 St. Louis County Court v. Sparks, 15, 49, 50, 275, 446, 517, 544 St. Luke's Church v. Slack, 73, 306 Stone v. Wetmore, 605, 606 Story, Bx parte, 212 Stout V. Hopping, 188, 189 Street i). County Commissioners, 409, 485 Strong, Be, 60, 61, 63 Strong's Case, 80, 83 Sturgis 1). Joy, 153, 154 Supervisor of Sand Lake v. Super- visor of Berlin, 323 Supervisors ». United States, 369, 377, 393, 396, 397 Supervisors of Culpepper e. 6or- rell, 790, 802 Supervisors of Mason Co. v. Min- turn, 403 Swan V. Gray, 24, 43, 46, 81, 338, 463, 502, 552, 554 Swann «. Buck, 101 Swann v. Work, 111 Sweet ti. Hulbert, 782 Symes v. Symes, 771 Symmers v. Regem, 704 Tabor v. Commissioner of Land Office, 39 Tarbell v. Griggs, 229 Tarver v. Commissioner's Court, 10, 369, 370 Taylor, Ex parte, 156, 169, 233 Taylor v. Governor, 65 Ten Eyck v. Farlee, 247 Tennessee & Coosa R. Co. v. Moore, 118, 119 Terhune v. Barcalow, 342 Territory v. Lockwood, 705 Thomas v. Armstrong, 327 Thomas v. Auditor of Hamilton Co., 359 Thomas v. His Creditors, 165 Thomas v. Mead, 763, 763, 791 Thomason b. Justices, 164 Thompson, Ex parte, 515 Thornton, Ex parte, 186 Tilden v. Supervisors of Sacramento Co., 346 Tillson V. Commissioners of Put- nam County, 381 Towle V. State, 102 Town of Orange v. Bill, 243 Townsend's Case, 334 Tucker, Ex parte, 803 Tucker it. Justices of Iredell, 463, 526, 554 Tuolumne Co. v. Stanislaus Co., 348, 535 Turner, Re, 351 Turner n. Melony, 80, 104, 105 Trainer v. Porter, 779 Trapnall, Ex parte, 264 Trenton Water Power Co., Be, 18, 319 Truett V. Taylor, 648 Trustees v. Dillon, 369, 373 Trustees of Williamsburgh, Be, 17 U. Underwood v. White, 49 Union Church ». Sanders, 71 Union Pacific R. Co. «. Commis- sioners of Davis, 390 TABLE OF CASES CITED. XXXI [REFEBENCES AKE TO PECTIOITB.] United States, Expa/i-te, 339, 588 United States v. Bank of Alexan- dria, 389 United States «. City of Sterling, 393 United States v. Commissioner, 24, 43, 43 United States ». Commissioners of Dubuque, 27, 33, 581, 582 United States v. Guthrie, 138, 139 United States v. Hoffman, 766 United States -o. Kendall, 566 United States ii. Lawrence, 34, 156, 191, 257 United States v. Lockwood, 635, 685, 697, 731, 782 United States b. Peters, 191, 339, 588, 766, 786 United States ». Seaman, 34, 43, 43 United States v. Shanks, 793 United States e. Smallwood, 39, 95, 589 United States n. Supervisors of Lee County, 398, 894, 573, 575, 576, 590 United States v. Treasurer of Mus- catine Co., 377, 393, 394, 590 United States v. Union Pacific R. Co., 528 Universal Church v. Trustees, 14, 336, 457 Updegraff i>. Crans, 619, 641, 685 Utica Insurance Co. ». Scott, 753 V. Vail «. People, 495 Vandeveer v. Conover, 158 Vaughan v. Company of Gun Makers, 294 Virginia & Truckee K. Co. v. County Commissioners, 140 Von Hoffman v. City of Quincy, 369, 393, 895 "W. "Wade V. Judge, 186 Wadsworth o. Queen of Spain, 779 "Waldron v. Lee, 143, 148 Walker, Ex pa/rte, 776 "Walker's Case, 380 Walkley v. City of Muscatine, 393, 897 "Wall «. Court of "Wardens, 777 "Walter v. Belding, 73, 329 "Ward V. County Court, 15, 339 "Warwick v. Mayo, 800 "Washburn o. Phillips, 765, 793 "Washington University o. Green, 6 "Watts o. Police Jury of Carroll, 369, 370 Wajonan v. Southard, 394 "Weavel «. Lasher, 349 "Weber «. Zimmerman, 297, 448, 457 567, 571 "Weeden v. Town Council of Rich mond, 404 "Welch D. Ste. Genevieve, 377, 393 394, 590 "Wells v. Stackhouse, 247 "Wertheimer b. Mayor of Boonville 777 "Weston v. Dane, 116 "Whipple, Succession of, 788 "White's Case, 399 White River Bank, Be, 379 Whitney, Ex pa/rte, 188, 189 Widdrington's Case, 3, 280, 291, 296 Wight V. People, 603, 710, 711 Wilkins v. Mitchell, 15, 177, 178 Wilkinson v. Cheatham, 369, 876 Wilkinson v. Yale, 229 Williams n. Cooper Common Pleas, 188 Williams n. County Commissioners, 14 Williams, Ex parte, 271, 796, 797, 800, 803 Williams ». Saunders, 335 Williams v. Smith, 33, 134 XXXI 1 TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Williamson, Bx pm-te, 15, 177 Wilson v. Berkstresser, 772 Winchelsea Causes, 692 Winston «. Moseley, 103, 113 Winters e. Heirs of Burford, 134 Witherington's Case, 390, 391, 396 Withers v. State, 221 Woodbury v. County Commission- ers, 14, 64 Woodruff, Ex parte, 569 Worthington o. Hulton, 377 Wright «. Allen, 697 Wright c. Fawcett, 476 Wright 0. Johnson, 195 T. Yeager, Mx pa/rte, 174 York & North Midland R. Co. •». The Queen, 815, 316 Zylstra «. Corporation of Charles- ton, 777 PAET I. THE LAW OF MANDAMUS THE LAW OF MANDAMUS CHAPTEE I. OF THE ORIGIN AND NATURE OF THE WRIT OF MANDAMUS. S 1. Definition of the writ 3. Its ancient origin, 3. The writ a prerogative remedy in England. 4. Not a prerogative writ in the United States. 5. The writ regarded as an extraordinary remedy. 6. Comparison of mandamus and iigunction. 7. Mandamus not a creative remedy. 8. Common law rules still applicable ; the i emedy a civil one ; and ao original proceeding. 9. Right must be clearly established ; discretion of the courts. 10. Conditions necessary to the exercise of the jurisdiction. 11. Mandamus not necessarily conclusive as to the right in controversy. 12. Courts will not anticipate omission of duty. 13. Demand and refusal, when necessary. 14. Mandamus not granted where it would be fruitless, 15. Not granted where other adequate legal remedy exists. 16. Statutory remedy a bar to mandamus. 17. Other remedy must be specific. 18. Remedy by indictment no bar to mandamus. 19. Absence of other remedy not always a ground for mandamus. 30. The jurisdiction as affected by equitable remedies. 31. Writ not granted where court of equity has acquired jurisdiction. 33. Qualification of the rule. 23. Injunction, when a bar to the relief 24. Distinction between ministerial duties and those resting in discretion the governing principle. 25. Writ not granted for enforcement of contract rights. (3) 4: MANDAMUS. [PAET I. 26. Not granted where proceedings are tainted with fraud; nor where it would encourage petty litigation. 37. The jurisdiction original, not appellate. 28. The jurisdiction revolutionized by legislation in England. 29. What courts may grant the writ in this country. 30. Statutes regulating the writ, construction of. § 1. The modern writ of mandamus may be defined as a command issuing from a common law court of competent jurisdiction, in the name of the state or sovereign, directed to some corporation, ofiicer, or inferior court, requiring the per- formance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.' In the specific relief which it affords, a mandamus operates much in the natiire of a bill in chancery for specific performance, the principal differ- ence being that the latter remedy is resorted to for the redress of purely private wrongs, or the enforcement of contract rights, while the former generally has for its object the performance of obligations arising out of official staticn, or specially imposed by law upon the respondent. The object of a mandamus is to prevent disorder from a failure of justice and a defect of police, and it should be granted in all cases where the law has established no specific remedy and where in justice there should be one. And the value of the matter in issue, or the degree of its importance to the public, shoiild not be too scrupulously weighed.^ 'See 3 Black. Com. 110; Dunklin a failure of justice and defect of County «. District County Court, 23 police. Therefore it ought to be Mo. 449. used upon all occasions where the " Rex ■!). Barker, Burr. 1267. And law has established no specific rem- see 3 Black. Com. 110. "A manda- edy, and where in justice and good mus," says Lord Maksfield, in Rex government there ought to be one. V. Barker, " is a prerogative writ, to Within the last century it has been the aid of which the subject is liberally interposed for the benefit entitled, upon a proper case pre- of the subject and advancement of viously shown, to the satisfaction of justice. The value of the matter, the court. The original nature of or the degree of its importance to the writ and the end for which it the public police is not scrupulously was framed, direct upon what occa- weighed. If there be a right and sions it should be used. It was noother specific remedy this should introduced to prevent disorder from not be denied." And in Rex v. CHAP. I.] OEIGIN AND NATTJEE OP WRIT. 5 § 2. The writ of mandamus is of very ancient origin, so ancient indeed that its early history is involved in obscurity, and has been the cause of much curious research and of many conflicting opinions. It seems, originally, to have been one of that large class of writs or mandates, by which the sovereign of England directed the performance of any desired act by his subjects, the word ^^ mandamus'" in such writs or letters missive having doubtless given rise to the present name of the writ. These letters missive or mandates, to which the generic name mandamus was applied, were in no sense judicial writs, being merely a command issuing directly from the sovereign to the subject, without the intervention of the courts, and they have now become entirely obsolete. The term "mandamus," derived from these letters missive seems gradually to have been confined in its application to the judicial writ issued by the kings bench, which has by a steady growth developed into the present writ of mandamus. Its use as a judicial writ may be distinctly traced to the reigns of Edward II and Edward III, when it was used to correct an improper amotion from a corporate franchise. The reports, however, aiford but fevvr instances of its application before the latter part of the seven- teenth century, when it may be said to have been first systematically used as a corrective of official inaction, and for the purpose of setting in motion inferior tribunals and officers.! Askew, Burr. 2186, the same eminent This was a case where the writ was authority says: "There is no doubt granted to restore a member of a that where a party who has a right, municipal corporation to the enjoy- has no other specific, legal remedy, ment of his franchise, from which the court will assist him by issuing he had been improperly removed, this prerogative writ. * * But but it is ' by no means tlie first case the court ought to be satisfied that in which the jurisdiction was exer- they have ground to grant a manda- cised for this purpose. See Middle- mus: it is not a writ that is to issue ton's case, 3 Dyer, 333, b. temp. of course, or to be granted merely 16 Eliz. And PoWTS, J., in Queen for asking." v. Heathcote, 10 Mod. 57, referring ' Baggs' case, 11 Coke, 93, decided to the assertion that Baggs' case in Trinity Term, 13 Jac. I, has been was the beginning of mandamus, frequently though incorrectly cited says that the writ is certainly of as the earliest case of a mandamus, much greater antiquity. at least to municipal corporations. In Dr. Widdrington's case, 1 Lev, 6 MANDAMUS. [part I, § S. Originally the writ of mandamiis was piirely a pre- rogative writ, and to this day it preserves in England some of its prerogative features. It was called a prerogative writ from the fact that it proceeded from the king himself, in his eonrt of kings bench, superintending the police and preserv- ing the peace of the realm, and it was granted where one was entitled to an office or function, and there was no other remedy. ' Bi^ckstojSte terms it a " high prerogative writ, of a most extensive remedial nature,"^ and it is uniformly referred to in the earlier cases as a prerogative remedy, and is spoken of as one of the flowers of the kings bench.-'' In this coimtry, however, a mandamus can not in any strict sense be termed a prerogative writ, and much confusion of ideas has resulted from the eiforts of many of the courts to attach prerogative features to the remedy, as used in the United States. This confusion has resulted chiefly from a failure to properly discriminate between the English and American systems. Under the English constitution, the king is the part I, 33, 13 Car. II, the antiquity of the writ is thus stated: "The court was moved for a mandamus to restore him to a fellowship in Christ's College in Cambridge, which was opposed by Jones, be- cause the universities have conu- sance of pleas by their charter, and the colleges have their visitors ; and therefore no mandamus lies. But two precedents were remembered to have been cited by Arthur Trevor in Dr. Godland's case, of mandamus granted in the like case, the one in the time of Edw. 2, and the other in the time of Edw. 3. To which Jones said that no mandamus had been granted since those till within these ten years. But Foster, Chief Justioe,said that there was one about the end of Elizabeth's reign, or the beginning of King James'." Still more satisfactory proof of the early origin of the jurisdiction by mandamus is found in Eex v Askew, Burr. 3186, where Lore" Manspikld says : " In a manuscrip' book of reports which I have seen the reporter cites (in reporting Dr Bonham's case), a mandamus in ths time of Edw. 3, directed to the Uni versity of Oxford, commanding them to restore a man that was 5a?!. nitus: which shows both the anti- quity and extent of this remedy bj mandamus." For early instances in which the writ was used to restore municipal officers to their corporate rights and franchises, see King «. City of Can- terbury, 1 Lev. part I, 119; Sir Thomas Earle's case, Carth. 173; Rex V. Mayor of Oxford, 3 Salk. 428. ' Per Mansfield, C. J., in Kings. Barker, 1 Black. W. 353. " 3 Black. Com. 110. « Per DoDBBiDeE, J., in Awdley a Joy, Poph. 176. CHAP. I.J ORIGIN AND NATUEE OP "WRIT. T fountain and source of justice, and where the law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary judicial powers of the courts, and the mandamus was issued in the king's name, and by the court of kings bench only, as having the general supervising power over all inferior jurisdictions and officers. Originally, too, the king sat in his own court in person and aided in the administration of justice, and although he has long since ceased to sit there in person, yet by a fiction of law he is still so far pre- sumed to be present, as to enable the court to exercise its prerogative powers in the name and by the authority of the sovereign. And the fact that a mandamus was formerly allowed only in cases affecting the sovereign or the interests of the public at large, lent additional weight to the preroga- tive theory of the writ. These suggestions are believed to sufficiently explain the statements so frequently met in the reports, that the writ of mandamus is a prerogative writ, issu- ing not of strict right, but at the will of the sovereign and as an attribute of sovereignty.! ^g confined to the English sys- tem, and to the jurisdiction of the court of kings bench, these statements may be accepted as correct. But even in that country there seems to be a growing tendency to divest the writ of its prerogative features, and to treat it in the nature of a writ of right. § 4. In the United States, from the nature of our system of government, the writ has necessarily been stripped of its prerogative features. In ieed, it is difficult to perceive how a mandamus can in any sense be deemed a prerogative writ in this country, unless the power of granting it were confined to one particular court in each state, or to a particular federal court, whose general functions should correspond to those of the court of kings bench, and which should represent the sovereignty of the country in the same sense in which it is represented in England by the kings bench. And the better considered doctrine now is, that the writ has, in the United ' See Kendall B. The United States, nison, 24 How. 66; Gilman s. Bas- 12 Pet. 527; Commonwealth v. Den- sett, 33 Conn. 298. 8 MANDAMUS. [part I. States, lost its prerogative aspect, having come to be regarded much in the nature of an ordinary action between the parties, and as a writ of right to the extent to which the party aggrieved shows himself entitled to this particular species of relief. 1 In other words, it is regarded as in the nature of an action by the person in whose favor the writ is granted, for the enforcement of a right in cases where the law affords him no other adequate means of redress. ^ § 5. Under the American system the writ having, as we have thus seen, been stripped of its prerogative features, it has necessarily lost some of the characteristics which formerly distinguished it as an extraordinary writ, and has been assimi- lated to the nature of an ordinary remedy.' It is stiU, ' Commonwealth «. Dennison, 34 How. 66; Kendall •«. The United States, 12 Pet. 527 ; Gilman ®. Bas- sett, 33 Conn. 298 ; Arterry v. Bea- vers, 6 Tex. 457. In Commonwealth ■a. Dennison, 24 How. 66, Tauet, C. J., referring to the prerogative features of the writ, says: "It is equally well settled, that a manda^ mus In modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubt- edly came into use by virtue of the prerogative power of the English crown, and was subject to regula- tions and rules which have long since been disused. But the right to the writ and the power to issue it have ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable." So in Gilman b. Bassett, 33 Conn. 298, the court, Butlkb, J., say : " Doubt less the writ was originally a pre- rogative one, but it has ceased to depend upon any prerogative power, and is now regarded in much the game light as ordinary process." The courts of Illinois, however, still adhere to the high prerogative theory of the writ, denying that it is in any sense a writ of right, and insisting that it issues only by vir- tue of prerogative, or in the discre- tion of the courts. See School Inspectors of Peoria v. The People, 20 111. 530; People v. Hatch, 3.S 111. 184, and see opinion of Brbesb, J. , p. 140 ; City of Ottawa v. The Pea pie, 48 111. 240. A similar tendency is noticeable in New York, where it is held that, mandamus being a pre- rogative writ, the relator must take the benefit of it on such terms as are accorded by the sovereign. Peo- ple V. Board of Metropolitan Police, 26 N. Y. 316. In as far as the Illi- nois cases here cited recognize the right to the writ as subject to a wise judicial discretion, they are undoubtedly correct, but in as far as they attempt to re-habilitate the writ with the attributes of preroga- tive power, they are opposed to the current of modern authority. " Arberry v. Beavers, 6 Tex. 457. ' See Commonwealth v. Dennison, 24 How. 66. CHAP. I.] ORIGIN AND ErATTIEE OF WRIT. 9 however, regarded as an extraordinary remedy in the sense that it is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to aiford redress to the party aggrieved, and where without its aid there would be a failure of justice. ' In this sense, its character as an extraordinary writ bears a striking resemblance to that of an injunction, which is the principal extraordinary remedy of courts of equity, and is granted only when the usual and accustomed modes of redress are unavailing. And it is to be constantly borne in mind in investigating the law of mandamus as it now prevails both in England and the United States, that by treating the remedy as an extraordinary one, it is not to be understood that the writ is left to the arbitrary caprice of every court vested with the jurisdiction, or that its use is not governed by rules as fixed and principles as clearly defined as those which regulate any branch of our jxirisprudence. On the contrary, it is believed that few branches of the law have been shaped into more symmetrical development, and few legal remedies are administered upon more clearly defined principles, than those which govern the courts in administering relief by the extraordinary aid of mandamus. § 6. A comparison of the writ of mandamus, as now used both in England and America, with the writ of injimction, discloses certain striking points of resemblance as well as of divergence in the two writs. Both are extraordinary reme- dies, the one the principal extraordinary remedy of courts of equity, the other of courts of law, and both are granted only in extraordinary cases, where otherwise these courts would be powerless to administer relief. Both, too, are dependent to a certain extent upon the exercise of a wise judicial discretion, and not grantable as of absolute right in all cases. It is only when we come to consider the object and purpose of the two writs, that the most striking points of divergence are pre- 1 Commonwealth B.Canal Commis- gheny, 16 S. & R. 317; Common- sioners, 3 Penrose & Watts (Sud wealth v. Commissioners of Phila- edition), 517. And see Common- delphia, 1 Whart. 1. wealth i>. Commissioners of Alle- 10 MAWDAMTJS. [PAET I. sented. An injunction is essentially a preventive remedy, mandamus a remedial one. The former is usually employed to prevent fature injury, the latter to redress past grievances. The functions of an injunction are to restrain motion and enforce inaction, those of a mandamus to set in motion and compel action. In this sense an injunction may be regarded as a conservative remedy, mandamus as an active one. The former preserves matters in statu quo, while the very object of the latter is to change the status of affairs and to substitute action for inactivity. The one is, therefore, a positive or remedial process, the other a negative or preventive one.i § 7. An important feature of the writ of mandamus and one which distinguishes it from many other remedial writs, is that it is used merely to compel action and coerce the perform- ance of a pre-existing duty. In no case does it have the effect of creating any new authority, or of conferring power which did not previously exist, its proper function being to set in motion and to compel action with reference to previously exist- ing and clearly defined duties. It is therefore in no sense a creative remedj^, and is only used to compel persons to act where it is their plain duty to act without its agency.^ And it follows, necessarily, that the writ will not go to command the performance of an act which would be unlawful in the absence of the writ.!' § 8. While in this country the writ has been regulated to a considerable extent by constitutional and statutory enact- ments, it has lost but few of its ancient remedial incidents, and is still governed by common law rules where such rules have not been abrogated. Though in form and name the pi'oceed- ings partake somewhat of a criminal nature, yet the remedy is in substance a civil one, having all the qualities and attributes ' See further as to the distinctions Blakemore v. Glamorganshire R. here noted, People i). Inspectors of Co., 1 Myl. & K. 154. State Prison, 4 Mich. 187 ; Attorney " People v. Gilmer, 5 Gilm. 342. General v. New Jersey R. & T. Co. And see opinion of Brbesb, J., in 3 Green Ch. 136 ; Washington Uni- People v. Hatch, 33 111. 140. versity v. Green, 1 Md. Ch. 97 ; ' Johnson v. Lucas, 11 Humph. Sherman v. Clark, 4 Nev. 138; 306. CHAP. I.] OBIGIN AND WATTJEE OF WRIT. 11 of a civil action. 1 And since the proceeding has all the ele- ments of an ordinary action at law, including parties, plead- ings, mesne and final process, it is regarded as an original proceeding or suit, rather than the mere final process of a suit, or a mode of obtaining execution on a judgment.^ § 9. The writ of mandamus being justly regarded as one of the highest writs known to our system of jurisprudence, it only issues where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. The right which it is sought to protect must therefore be clearly established, and the writ is never granted in doubtful cases. ^ It follows also from the important position which this writ occupies as a remedial process, as well as from its nature as an extraordinary remedy, that the exercise of the jurisdic- tion rests, to a considerable extent, in the sound discretion of the court, subject always to the well settled principles which have been established by the courts, or fixed by legislative ' State v. Bailey, 7 Iowa, 390 ; Judd ' State v. Supervisors of Washing- D. Driver, 1 Kan. 455. And see ton, 3 Chand. 350 ; Free Press Asso- McBane e. The People, infra. elation «. Nichols, 45 Vt. 7 ; Peo- " McBane v. The People, 50 111. pie v. Salomon, 46 111. 419 ; People 503. "The proceeding by man- ». Mayor of Chicago, 51 111. 38. In damns," says Walkbk, J., " has all State v. Supervisors of Washington, the elements of a suit. It has a 8 Chand. 350, the court, Jackson, J., party plaintiff, a party defendant, say: "A writ of mandamus is the and is to obtain a right of which the highest judicial writ known to our plaintiff is deprived, and it is insti- constitution and laws, and accord- tuted and carried on in a court, and ing to the long approved and well we are at a loss to determine what established authorities, only issues element it lacks to be a suit. It has in cases where there is a specific mesne and final process, has plead- legal right to be enforced, or where ings, and issues of law and of fact there is a positive duty to be and are formed and tried as in other which can be performed, and where cases, and it terminates in a judg- there is no other specific legal rem- ment which is executed in the mode edy. Where the legal right is prescribed by the law. This being doubtful, or where the performance so, it must be held to be an original of the duty rests in discretion, a proceeding, or suit, having none of writ of mandamus can not right- the elements of final process." fully issue." 12 MAWDAMTTS. [PAKT enactment.! Cases may, therefore, arise where the applicant for relief has an undoubted legal right, for which mandamus is the appropriate remedy, but where the court may, in the exercise of a wise judicial discretion, still refuse the relief. Thus, where by granting the writ the court would, in eifect, decide questions of grave importance concerning the official status of parties not before the court, and who have had no opportunity of being heard, it may very properly refuse a man- damus, although the case presented is in other respects an appropriate case for the exercise of the jurisdiction.^ So if another action be already pending in which the same questions may be tried, the court may, in its discretion, refuse a man- damus, especially where a determination of the questions upon a summary application for the writ would affect the rights of ' Commonwealth v. Canal Com- missioners, 2 Penrose & Watts (3n(J edition), 517; Commonwealth «. Commissioners of Allegheny, 16 S. & R. 3X7; Commonwealth v. Coin- missioners of Philadelphia, 1 Whart. 1 ; People v. Hatch, 33 111. 134; Peo- ple 11. Curyea, 16 111. 547; People v. Forquer, infra; Free Press Associa- tion i>. Nichols, 45 Vt. 7. " People V. Forquer, Breese, 68. " If the right had been established as a perfect legal right," says Smith, J., p. 83, " and it has been violated, our laws must afford a remedy. But in the case of a mandamus, there are cases where this may have been shown, yet the court will not grant the writ. It is certainly a sound legal principle, that cases may arise where the court will not grant a mandamus, when the grant- ing thereof will, in a collateral man- ner, decide questions of importance between persons who are not parties to the proceedings, and have had no notice and opportunity to interpose their defense; or where it will be attended with manifest hardships and difficulties. And it has been further decided in the court of kings bench, that courts are not bound to grant writs of mandamus in all cases where it may seem proper; but may exercise a discre- tionary power, as well in granting, as refusing, as where the end of It is merely a private right. See Bacon's Abridgment. Courts will not grant a mandamus to a per- son to do any act, where it is doubt- ful whether he ought to do it. The real question then, is, on this part of the case, that although it were certain the party applying had a legal right, and that it has been violated, and that the law would afford him a remedy, and which remedy is conceded to be a man- damus, whether it is not such a case as would be attended with manifest difficulties and great hardships, but also involving in a collateral man- ner the right of these parties who have no opportunity of defending their interests." CHAP. I.J OKIGIN AND NATUKE OF WEIT. 13 persons not before the court and who have had no opportunity of being heard.* § 10. Since the object of a mandamus is not to supersede legal remedies, biit rather to supply the want of them, two pre- requisites must exist to warrant a court in granting this extra- ordinary remedy: first, it must appear that tlie relator has a clear, legal right to the peii'ormance of a particular act or dii ty at the hands of the respondent'; and, second, that the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it is sought to coerce. ^ The test to be applied, there- fore, in determining upon the right to relief by mandamus, is to inquire whether the party aggrieved has a clear, legal right, and whether he has any other adequate remedy, since the writ only belongs to those who have legal rights to enforce, who find themselves without an appropriate legal remedy. ^ In this sense it may be regarded as a dernier resort, to be used when the law affords no other adequate means of relief.* And wherever the conditions above noticed co-exist, the right to the extraordinary aid of a mandamus may be regarded as, to that extent, ex debito justitiw. ^ To warrant the relief, hoM'- ever, the right whose enforcement is sought must be a com- plete and not merely an inchoate right.* And the relator must not only show a clear, legal right to have the particular thing in question done, but also the right to have it done by the persons against whom the writ is sought.'' And since the writ is founded on a suggestion of the relator's own right, it ' Oakes «. Hill, 8 Pick. 47. age, C. J., say: "A mandamus ' People ij. Supervisors of Greene, issues, in general, in all cases where 13 Barb. 37 ; Commonwealth v. Ros- the injured party has a right to seter, 3 Binu. 360 ; People v. Thomp- have anything done, and has no son, 35 Barb. 73 ; Tarver v. Com- other specific means of compelling misaioner's Court, 17 Ala. 537 ; King its performance. There must be a V. Water Works Co., 6 Ad. & E. 355, right, therefore, without any other per OoLEKiDOB, J. adequate remedy, or a mandamus ' People «. Thompson, 35 Barb. 78. does not issue ; and I incline to the ' People V. Head, 35 111. 335. opinion that the right must be com- ' People V. Hilliard, 39 111. 418. plete, not inchoate." * People 1}. Corporation of Brook- ' People v. Mayor of Chicago, 51 lyn, 1 Wend. 318. The court, Sav- 111. 38. 14 MANDAMUS. [PAET I. is not suiBcient to show merely an absence or want of right on the part of respondents, without showing the relator's title.' § 11. It is worthy of note that proceedings in mandamus do not always or necessarily determine the questions of ulti- mate right involved, and the writ is frequently gi-anted where it can only determine one step in the progress of inquiry, and when it can not finally settle or determine the controversy. A familiar illustration of this may be found in cases of man- damus to canvassers of elections, to compel them to canvass the votes cast and to declare the return accordingly, where it may still be necessary to resort to proceedings in quo warranto to determine the ultimate questions of right and to procure admission to the office.* § 12. Mandamus is never granted in anticipation of a sup- posed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is, therefore, incumbent upon the relator to show an actual omission on the part of the respondent to perform the required act, and since there can be no such omission before the time has arrived for the performance of the duty, the writ will not issue before that time. In other words, the relator must show that the respondent is actually in default in the performance of a legal duty then due at his hands, and no threats or prede- termination can take the place of such default before the time arrives when the duty should be performed, nor does the law contemplate such a degree of diligence as the performance of a duty not yet due.* § 13. As regards the necessity of a previous demand and refusal to perform the act which it is sought to coerce by mandamus, the authorities are not altogether reconcilable. The better doctrine, however, seems to be that which recog- nizes a distinction between duties of a public nature, or those ' Commonwealth ». County Com- missioners of Public Schools v. missioners, 5 Rawle, 75. County Commissioners, 20 Md. 449. ' State V. County Judge of Mar- And see State v. Burbank, 22 La shall, 7 Iowa, 186. An. 298; State v. Dubuclet, 24 La. « State V. Carney, 3 Kan. 88 ; Com- An. 16. CHAP. I.] ORIGIN AND NATURE OF WRIT. 15 whicli affect the public at large, and duties of a merely private nature and affecting only the rights of individuals. And while in the latter class of cases, where the person aggrieved claims the immediate and personal benefit of the act or duty whose performance is sought, demand and refusal are held to be necessary as a condition precedent to relief by mandamus,! in the former class, the duty being strictly of a public nature, not affecting individual interests, and there being no one specially empowered to demand its performance, there is no necessity for a literal demand and refusal. ^ In such cases the law itself stands in lieu of a demand, and the omission to perform the required duty in place of a refusal.' But in cases where demand and refusal are held necessary, it is not sufficient that the demand be couched in merely general terms, but it should be express and distinct, and should clearly designate the precise thing which is required.* So, too, the demand should be untrammeled by any conditions which may make the refusal a qualified instead of an absolute one.^ § 14. It is a fundamental principle of the law of manda- mus, that the writ will never be granted in cases where, if issued, it would prove unavailing. And wherever it is ajjpa- rent to the court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court is invoked, or for other sufficient causes, so that the granting of the writ must necessarily be fruitless, the court will reftise to interfere.* So if it is apparent that the writ, if ' Oroville & Virginia R. Co. v. * Chance v. Temple, 1 Iowa, 179. Supervisors of Plumas, 37 Cal. 354. ' County Court of Macoupin •«. ' State v. County Judge of Mar- The People, 58 111. 191. shall, 7 Iowa, 186; State b. Bailey, 'Williams u. County Commis- Ib. 390 ; Commonwealth v. Commis- sioners, 35 Me. 345 ; Woodbury v. sioners of Allegheny, 37 Pa. St. 237. County Commissioners, 40 Me. 304 ; And see for a fuller discussion of People v. The Chicago & Alton R. the distinction here noticed. Chap- Co., 55 111. 95; People v. Supervi- ter II, post. sors of Westchester, 15 Barb. 607 ; ' State r>. County Judge of Mar- Colonial Life Insurance Co. «. Su- shall, awpra. pervisors of New York, 24 Barb. 16 , MANDAMUS. [pAET I. granted, can not be enforced by the court, relief will be with- beld, since the courts are averse to exercising their extra- ordinary jurisdiction in cases where their authority can not be vindicated by the enforcement of process. ^ Nor will man- damus be allowed unless the act or duty whose enforcement is sought is legally possible at the time, and it is therefore a sufficient return to an alternative mandamus that the respond- ent has no power to do the act required. ^ So the relief will be withheld where the respondent offers to do the thing sought without a mandamus. ^ But it is important to observe, that while the impossibility of performing the act sought by the writ is ordinarily a sufficient objection to the exercise of the jurisdiction, yet it is otherwise where such impossibility has been caused by the respondent's own act, and in such case the courts may properly interfere, notwithstanding the alleged impossibility on the part of respondent to do the act in question.* § 15. From the origin, nature and purpose of the writ, as thus far discussed, it has been shown to be an extraordinary remedy, applicable only in cases where the usual and accus- tomed modes of procedure and forms of remedy are powerless to afford relief. It follows, therefore, from the principles already established, as well as from the very nature and essence of the remedy itself, that the writ never lies where the party aggrieved has another adequate remedy at law, by action or otherwise, through which he may attain the same result which he seeks by mandamus. This principle is of the highest importance in all cases where it is necessary to deter- mine upon the propriety of interference by mandamus, and the rule will be found to be firmly established as one of the fundamental principles underlying the entire jurisdiction, that the existence of another specific, legal remedy, fully adequate 166 ; People v. Tremain, 17 How. Pr. Bank, 9 Ad. & B. 729. 143 ; State i). Trustees of Warren, 1 ' Bassett v. School Directors, 9 & 3 Ohio (Snd edition), 300; TJni- La. An. 513. veraal Church v. Trustees, 6 Ohio, ^ State v. Perrine, 5 Vroom, 254. 445 ; State i>. Perrine, 5 Vroom, 254; ' Anon. LoflEt, 148. Bassett v. School Directors, 9 La. * Queen B.Birmingham &Glouces. An. 513 ; Queen «. Norwich Savings ter R. Co. 2 Ad. & E. N. S. 47. OHAP. I.] ORIGIN AND NATURE OP \^RIT. 17 to afford redress to the party aggrieved, presents a complete bar to relief by the extraordinary aid of a mandamus. The rule has been recognized from the earliest times, and it has been applied throughout the entire growth and development of the law of mandamus. Indeed, it results from the very nature and origin of the writ, which was introduced to supple- ment the existing jurisdiction of the courts, and to aiford relief in extraordinary cases where the law presented no adequate remedy. The existence or non-existence of an adequate and specific remedy at law in the ordinary forms of legal procedure is, therefore, one of the first questions to be determined in all applications for the writ of man- damus, and whenever it is found that such remedy exists, and that it is open to the party aggrieved, the courts uniformly refuse to interfere by the exercise of their extraordinai-y jurisdiction.! ' King 11. Bank of England, Doug. 524; Wilkins v. Mitchell, 3 Salk. 829; Rex v. Bishop of Durham, Burr. 567 ; King v. Mayor of Col- chester, 2 T. R 260; Queen «. Hull & Selby B. Co., 6 Ad. & E. N. S. 70 ; Queen -o. Derby, 7 Ad. & E. 419 ; Commonwealth v. Rosseter, 2 Binn. 360; Boycei). Russell, 2 Cow. 444; People «. Hawkins, 46 N. Y. 9; State J). County Court of Howard, 39 Mo. 375 ; State v. McAuliflfe, 48 Mo. 112; People v. Hatch, 33 111. 134; People «. Salomon, 46 HI. 419; Louisville & New Albany R. Co. «. The State, 25 Ind. 177; Fogle v. Gregg, 26 Ind. 345 ; King "William Justices «. Munday, 2 Leigh, 165 ; State i>. Supervisors of Sheboygan, 29 Wis. 79 ; Shelby ». Hoffman, 7 Ohio St. 450; Reading v. Common- wealth, 11 Pa. St. 196; James v. Commissioners of Bucks Co., 13 Pa. St. 72; Heflner ». The Common- wealth, 28 Pa. St. 108; Ex parte Cheatham, 6 Ark. 437; Ex pa/rte 2 Williamson, 8 Ark. 424; Succes- sion of Macarty, 2 La. An. 979; State V. Judge of Fourth District Court, 8 La. An. 92 ; State v. Judge of Sixth District Court, 9 La. An. 350 ; Leland v. Rose, 10 La. An. 415 ; State V. Judge of Sixth District Court, 12 La. An. 342; Early v. Mannix, 15 Cal. 149; People v. Hubbard, 23 Cal. 34; Peralta v. Adams, 2 Cal. 594; People v. Sex- ton, 24 Cal. 78 ; Byrne e. Harbison, 1 Mo. 225, 2nd edition, 160; State v. Engleman, 45 Mo. 37; St. Louis County Court ®. Sparks, 10 Mo. 118; Mansfield «. Puller, 50 Mo. 338; Ward v. County Court, lb. 401; Commonwealth ». Commissioners of Allegheny, 16 S. & R. 317; Peo- ple «. Supervisors of Chenango, 11 N. T. 503; People v. Mayor of New ^ York, 10 Wend. 393; Ex parti' Lynch, 2 Hill, 45 ; People v. Thomp- son, 25 Barb. 73 ; People v. Wood; 85 Barb. 653; People v. Booth, 49 Barb. 31 ; State v. County Judge of 18 MANDAMUS. [PAKT § 16. While the rule under consideration is a common law rule of very ancient origin, it is not confined in its application to cases where the existing remedy relied on in bar of the jurisdiction by mandamus is a common law remedy, but applies with equal force to cases where a particular or special remedy is provided by statute. Wherever, therefore, an express remedy is afforded by statute, plain and specific in its nature, and fully adequate to redress the grievance complained of, mandamus wiU not lie.^ And the fact that the person aggrieved has, by neglecting to pursue his statutory remedy, placed himself in such a position that he can no longer avail himself of its benefit, does not remove the case from the application of the rule, and constitutes no ground for interfer- ence by mandamus.* Floyd, 5 Iowa, 380; Inhabitants of Lexington v. Mulliken, 7 Gray, 280. Authorities might be multiplied indefinitely in support of the prin- ciple as stated in the text, but it is believed that the above will suffice. The principle vpill be found con- stantly recurring throughout these pages, especially in the chapters pertaining to Courts, Public Offi- cers, and Private and Municipal Corporations. The principle is tersely stated by Mr. Justice Teates, in Commonwealth v. Ros- seter, 2 Binn. 360, in these words : "To found an application for a mandamus, the established rule of law is, that there ought in all cases tp be a specific, legal right, as well ^ the want of a specific legal remedy. Courts of justice uni- formly refuse such applications where the party has another com- plete remedy, unless, as it is said in some cases, the remedy be ex- tremely tedious. It is evident that it would be highly inconvenient to try civil rights in this mode of pro- ecdure, when the party may insti- tute a suit in the ordinary legal course, and if injured, obtain a com- plete satisfaction measured out to him by a jury, equivalent to a spe- cific relief" And in Shelby v. Hoffman, 7 Ohio St. 450, the court use the following language : "The writ of mandamus, at common law, was a prerogative writ, introduced to prevent discord from a failure of justice, and to be used on occasions where the law had established no specific remedy. It is, however, a general rule at common law, that the writ of mandamus does not lie unless the party applying has no other adequate legal remedy." 'State e. Supervisors of Sheboy- gan, 29 Wis. 79 ; King "William Jus- tices V. Munday, 3 Leigh, 165; Louisville and New Albany R. Co. «. The State, 25 Ind. 177; Fogle v. Gregg, 26 Ind. 845. 'State V. Supervisors of Sheboy- gan, 29 Wis. 79. This was an action by a former county treasurer to compel the board of supervisors to audit and allow certain portions of his official accounts which they had CHAP. I.] OBIGIN AND WATUEE OP WRIT. 19 § 17. It is to be borne in mind, however, in the applica- tion of the principle under discussion, that the existing legal remedy relied upon as a bar to interference by mandamus, must not only be an adequate remedy in the general sense of the term, but it must be specific and appropriate to the particular circumstances of the case. That is, it must be such a remedy as affords relief upon the very subject matter of the contro- versy, and if it is not adequate to afford the party aggrieved the particular right which the law accords him, mandamus will lie, notwithstanding the existence of such other remedy.* And if the existing remedy is inadequate to place the injured party in the same position he occupied before the injury or omission of duty complained of, it is insufficient for the pur- poses of the rule under discussion and will not prevent the interposition of the courts by mandamus.* Thus, the exist- ence of a remedy by an action on the case against a public officer for neglect of official duty, does not supersede the remedy by mandamus, since such an action can only afford pecuniary compensation and can not compel the performance of the specific duty required.* previously refused to allow. A stat- has neglected to pursue it, and has utory remedy existed by an appeal now lost his right to appeal, consti- from the decision of the board to tutes no sufficient ground for grant- the circuit court of the county. The ing a mandamus. If it did, then mandamus was refused, the court, the writ should be granted in every Cole, J., saying, p. 85 : " Here was case, to correct the erroneous decis- a plain, adequate remedy by action, ion of an inferior tribunal, when furnished the relator for the correc- the aggrieved party has failed to tion of the decision of the board, appeal from such a decision within The statute in the clearest language the time allowed by law. It must gave him an appeal to the circuit be apparent that the writ of man- court from this determination disal- damns has not been awarded for lowing those payments. This rem- such a purpose, but only where no edy the relator should have adopted adequate specific remedy by action instead of applying for a mandamus exists." to correct the erroneous decision of ' Etherldge v. Hall, 7 Port. 47; In the board. True, his right to appeal re Trustees of Williamsburgh, 1 from the decision of the board has Barb. 34; Fremont «. Crippen, 10 expired, but that fact can make no Cal. 211. See Eing v. Bank of difference with our determination England, Doug. 524. on this application. He had a plain "Etheridge «. Hall, «upra. legal remedy, but the fact that he 'Fremont v. Crippen, 10 Cal. 211 20 MANDAMUS. PAKT I. § 18. In conformity witli the principle discussed in the preceding section, that the remedy relied upon as a bar to relief by mandamus must be specifically adapted to the precise injury for which redress is sought, it is well established that the existence of a remedy by indictment for the omission of duty or other grievance complained of, constitutes no objection to granting the extraordinary aid of a mandamus. An indict- ment, at the most, is merely punitive, and not remedial in its nature, and can only punish the neglect of duty, without compelling its performance. It 'can not, therefore, take the place or usurp the functions of a mandamus, which affords specific relief by commanding the performance of the identical thing sought. 1 § 19. While, as we have already seen, the rule that man- damus does not lie where the party aggrieved has another adequate and specific remedy at law, is well established and universally recognized, yet the converse of the proposition does not necessarily hold true, and the absence or want of other adequate and specific legal remedy is not, of itself, sufficient to lay the foundation for interference by mandamus. Indeed, there are many cases where an injury has been committed or a duty omitted, for which the law affords no redress in the iisual ' Queen ■». Eastern Counties R. Co. cases wliere an act of parliament is 10 Ad. & E. 531 ; King v. Severn & contravened. Besides, the indict- Wye R. Co., 3 Barn. & Aid. 644; ment does not compel {he perform- , People V. Mayor of New York, 10 ance, but only punishes the neglect Wend. 395; In re Trenton Water of duty, though it was thought Power Co., Spencer 659 ; Fremont «. proper to remind us that mandamus Crippen, 10 Cal. 211. The principle might do no more, for that disobe- is well stated by Lord Dbnmajst in dience would only bring the party Queen v. Eastern Counties R. Co. into contempt, and expose them to 10 Ad. & E. 531, as follows: "It attachment, which would but end was urged that our mandamus to in individual suffering, and leave compel obedience to an act of par- the required act still undone. Tet liament implying a disobedience at we are not in the habit of supposing present, the prosecutor may indict, that persons required to obey the and, having that remedy, does not queen's writs issuing from this require the extraordinary process of court, will incur the penalty of con- mandamus. This argument appears tempt for contumacy, or be advised to prove too much, as it would pre- to evade the known and ancient vent the court from acting in all process of the law." CHAP. I.] ORIGIN AlVD NATURE OF WRIT. 21 forms, and where the courts have yet refused to grant relief by mandamus. 1 But the fact that the form and method of pro- ceeding by mandamus in a particular case are such as to prevent the judgment of the court from being revised by a writ of error, while it is a consideration which ought to induce great caution in assuming the exercise of the jurisdiction by man- damus, will not, of itself, prevent the court from interfering in a proper case.^ § 20. The object of a mandamus being to enforce specific relief, it follows that it is the inadequacy rather than the absence of other legal remedies, coupled with the danger of a failure of justice without the aid of a mandamus, which must usually determine the propriety of this species of relief.' And the existence of possible equitable remedies does not affect the jurisdiction of courts of law by the writ of man- damus, for while such remedies may properly be taken into consideration in determining the exercise of judicial discretion in allowing the writ, they do not affect the question of juris- diction.* Indeed, the courts have gone still farther, and have held that by a legal remedy, such as will bar relief by man- damus, is meant a remedy at law as contra-distinguished from a remedy in equity, and that the mere existence of an equitable remedy is not, of itself, a conclusive objection to the exercise of the jurisdiction, although it may and should influence the court in the exercise of its discretion in the particular case." ^Hx parte Ostrander, 1 Denio, willbe granted for that cause." 679; Lewis ». Barclay, 35 Cal. 313; ' Queen «. Eastern Counties R. Co. BxpMie Newman, 14 Wal. 153. In 10 Ad. & E. 531. Ex pourte Ostrander, the court, Jew- ' People v. State Treasurer, 34 ETT, J., say : " It is argued that Mich. 468. without the aid of this writ the 'Id. And see People ®. Mayor of party is remediless : that error will New York, infra. not lie. That is not a suflScient ^People ». Mayor of New York, ground in itself to entitle a party to 10 Wend. 395. And see Common- the writ. It is true that when a wealth v. Commissioners of AUe- party has another legal remedy, a gheny, 33 Pa. St. 318. In People v. mandamus will generally he refused Mayor of New York, Mr. Justice on that ground; but it is not true Nelson, for the court, says: "It is that because a party has no legal contended that a mandamus is not remedy, unless by this writ, that it the appropriate remedy in this case 22 MANDAMUS. [PAET I. § 21. "WTiere, however, in addition to the existence of a sufficient equitable remedy, the parties have already invoked the aid of that remedy and have sought relief in a court of equity, a different rule applies. In such cases, the parties having invoked the jurisdiction of a court of equity, if that court is fully empowered to determine the controversy and to afford ample relief to all parties in interest, a court of law will refuse to lend its extraordinary powers to determine a litiga- tion which may be as well concluded in the forum in which it was originally begun. And the familiar principle of jurispru- dence, that, as between courts of co-ordinate powers, the one which first acquires jurisdiction of a cause and is fully empowered to afford complete relief, shall be allowed to retain jurisdiction and determine the controversy, applies with especial force in such cases. The fact, therefore, that a court of chancery has already acquired jurisdiction of the same sub- ject-matter which is presented in the application for a man- damus, and has full power to grant relief, or to compel the performance of the thing sought, is a complete bar to the exer- cise of the jurisdiction by mandamus. * Especially is this true where the relator in the mandamus proceedings is also the plaintiff in equity and has himself invoked the aid of that The proposition Is, I believe, uni- sion to do the act, to compel a versally true, that the writ of man- performance of which this writ is damns will not lie in any case sought, constitute any objection to where another legal remedy exists, the granting of the writ. The prin- and it is used only to prevent a ciple which seems to lie at the failure of justice. By legal remedy foundation of applications for this is meant a remedy at law, and writ and the use of it is, that when- though the party might seek redress ever a legal right exists, the party is in chancery, that, of itself, is not a entitled to a legal remedy, and when conclusive objection to the applica- all others fail the aid of this may be tion. That may and should influ- invoked." ence the court in the exercise of the ' Queen ». Pitt, 10 Ad. & E. 272 ; discretion which they possess, grant- People e. Warfield, 20 111. 160; Pee- ing the writ under the facts and pie v. Wiant, 48 111. 268 ; People v. circumstances of the particular City of Chicago, 53 111. 424; School case, but does not affect its right or Inspectors of Peoria «. The People, jurisdiction. Nor does the fact 20 111. 530; Hardcastle ®. Maryland that the party is liable to indict- & Delaware R. Co., 32 Md. 33 ; King ment and punishment for his omis- ®. Wheeler, Oa. temp. H. 99. CHAP, !•] OBIGIN AND NATURE OF WRIT. 23 court. In Buch case, having voluntarily chosen the forum in which to litigate his rights, he is estopped by his own con- duct from afterward seeking to transfer the controversy to another jurisdiction, i ' People V. City of Chicago, 53 111. 424 ; School Inspectors of Peoria v. The People, 20 111. 530; Hardcastle «. Maryland & Delaware E. Co., 33 Md. 32. People d. City of Chicago was an application on the relation of a newspaper company for a writ of mandamus to compel the common council of the City of Chicago to designate the newspaper published by said company as the official paper in which the proceedings of the council should be published, in conformity with a statute requiring their publication in the German newspaper having the largest circu- lation. It appeared in the proceed- ings that at the time of filing the petition for the alternative man- damus, a bill in chancery was already pending, in which the rela- tors sought equitable relief for the same grievances. The alternative writ was denied, the court saying, p. 437: "It is made to appear to the court, in this proceeding, that at the time of filing the petition of the relators for the alternative writ of mandamus, there was pending in the circuit court of Cook County a suit in chancery, instituted by these relators against the common council of the city of Chicago, the various other city officers, and the company who publish the 'Illinois Volks Zeitung,' the German newspaper alleged to have been designated by the common council to publish its proceedings. The relators sought, by the bill in that suit, and obtained an injunction, restraining the city authorities and the ' Volks Zeitung ' from executing the purpose for which the latter had been so desig- nated, and the relators, in their bill, pray for 'such other relief as is agreeable to equity.' That bill is made an exhibit in the petition of the relators, and a copy is filed there- with. While there may be grave doubts whether a court of chancery would take jurisdiction for the mere pur- pose of compelling the proper exe- cution of the law in question, on the part of the common council, yet, having acquired jurisdiction for a purpose clearly within the province of a court of chancery, that of awarding an injunction, it may retain the bill for the purpose of ascertaining and enforcing all the rights of the parties properly involved in the subject-matter in controversy. The writ of man- damus is only employed where the party has a legal right and has no otlier remedy. The relators, then, having resorted to a court of chan- cery in such manner as gives to that court full jurisdiction to adjust and enforce the rights of all the parties interested in this controversy, it would be improper for us, on this application, to undertake to settle the questions involved in that suit, in the mode desired. People ex rel. Mitchell 1). Warfield, 30 111. 164; School Inspectors of Peoria ii. The People ex rel. Grove, lb. 531 ; People ex rel. "Wallace v. Salomon, 46 111. 419; People ex rel. Wheaton v. 24 MANDAMUS. [pAET I. § 22. The rule as thus stated is to be accepted with the qualification that the proceedings in chancery will afford as effectual a remedy as could be had by mandamus. And where the court is satisfied, from the nature of the questions involved, that they can not be appropriately or finally determined in the chancery proceeding, and that complete justice to all parties can not be had in that suit, or that it will be no bar to a sub- sequent suit of the same nature against the same defendants, the pendency of the proceedings in equity will not prevent the court from exercising its jurisdiction by mandamus, since the latter remedy affords more complete justice in such a case than could otherwise be obtained. ^ § 23. It has already been shown that mandamus never lies where the writ, if granted, would prove inoperative. And the rule is well established that the writ will not be granted to compel the performance of an act which has been expressly forbidden by an injunction in the same court or in another court of competent jurisdiction, or whose performance would be in direct violation of an existing injunction, even though the person seeking relief by mandamus is not a party to the injunction suit. Courts will not compel parties to perform acts which would subject them to punishment, or which would put them in conflict with the order or writ of another court, nor will the court, in such cases, to which application is made for a mandamus, inquire into the propriety of the injunction.* Wiant, 48 111. 264. The alternative commissioners alleged that a final writ is denied." decree had been rendered against ' People ». Salomon, 51 111. 55. them in a chancery suit instituted " Ohio & Indiana R. Co. v. Com- by certain citizens of the county, in misaioners of "Wyandot, 7 Ohio St. which they had been perpetually 278; State v. Kispert, 21 Wis. 387; enjoined from making tlie subscrip- i?s}jart«Pleming, 4Hill, 581. And tion. The peremptory mandamus see People v. Warfleld, 20 111. 160. was refused, the court, Bkinkbr- Ohio & Indiana R. Co. «. Commis- hoff, J., saying : * * * " It is sioners of Wyandot, was an alterna- true the Ohio and Indiana Railroad tive writ of mandamus to compel Company was not a party to the the county commissioners to sub- proceeding in chancery in which scribe to the stock of relator, in con- the decree of injunction was ren- formity with a vote of the electors dered, and that decree does not, of the county. The return of the therefore, bind or conclude the OHAP. I.] ORIGIN AND WATTJEE OP WRIT. 25 § 24. But the most important principle to be observed in tlie exercise of the jurisdiction by mandamus, and one which lies at the very foundation of the entire system of rules and principles regulating the use of this extraordinary remedy, is that which fixes the distinction between duties of a peremp- tory or mandatory nature, and those which are discretionary in their character, involving the exercise of some degree of judgment on the part of the officer or body against whom the mandamus is sought. This distinction may be said to be the key to the extended system of rules and precedents forming the law of mandamus, and few cases of applications for this extraordinary remedy occur which are not subjected to the test of this rule. Stated in general terms, the principle is tha,t mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but that as to all acts or duties necessarily calling for the exercise of judgment and discretion, on the part of the officer or body at whose hands their performance is required, mandamus will not lie. The application of the rule is universal and its illus- trations are as multiform as are applications for the aid of this extraordinary remedy. It applies with especial force to company by any of its findings ; but disobedience to the decree of injunc- it does nevertheless have the effect, tion. Even where the order or while it exists in full force, to pre- decree of injunction is made by a elude the company from having the court of competent jurisdiction, peculiar remedy which it now here other than that in which the man- seeks. If we were to award the per- damns is sought, the latter will not emptory writ of mandamus, we thus place a party between two fires, should command the commissioners by subjecting him to contradictory of Wyandot county to do the very orders. Ex parte Fleming, 4 Hill, act which, by our decree of injunc- 581. Whether there be any way in tion in full force, they are forbidden which the Ohio and Indiana Rail- to do. The idea of such inconsist- road Company can get rid of the ency is wholly inadmissible. If the decree of injunction, is a question peremptory writ of mandamus were not before us. As to that, it is at to issue, and the defendants failed liberty to proceed as it may be to obey it, they would be liable to advised ; but we are clear that it can process for contempt; while, on the not be done collaterally in this pro- other hand, if they obeyed it, they ceeding." would be equally in contempt for 26 MANDAMUS. [pART I. cases where the aid of mandamus is sought against inferior courts or judges, public officers, municipal authorities and corporate officers generally, and in all these cases it is the determining principle in guiding the courts to a correct decision. And wherever such officers or bodies are vested with discretionary power as to the performance of any duty required at their hands, or where in reaching a given result of official action they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no manner interfere with the exercise of iuch discretion, nor control or dictate the judgment or decision which shall be reached. But if, upon the other hand, a clear and specific duty is positively required by law of any officer, and the duty is of a ministerial nature, involving no element of discretion and no exercise of official judgment, mandamus is the appropriate remedy to compel its performance, in the absence of any other adequate and specific means of relief, and the jurisdiction is liberally exercised in all such cases. * 'Humboldt Co. ■». County Com- 19 Wend. 113; People «. Judges of missioners of Churchill, 6 Nev. 30; Oneida Common Pleas, 31 Wend Ex parte Black, 1 Ohio St. 30 ; City 20 ; Ex parU Davenport, 6 Pet. 661 of Ottawa 1). The People, 48 111. 340 ; United States v. Lawrence, 3 Dall United States ». Seaman, 17 How. 43 ; Ex parte Poultney, 13 Pet. 472 235 ; United States v. The Commis- Postmaster General -c. Trigg, 11 Pet, sioner, 5 Wal. 568 ; Secretary ®. Mc- 173 ; Ex pwrte Many, 14 How. 34 Garrahan, 9 Wal. 398; State v. People ». Sexton, 37 Cal. 533 ; Barks- Board of Liquidators, 23 La. An. dale ». Cobb, 16 Geo. 13; Ex parte 388; States. Shaw, lb. 790; People Banks, 28 Ala. 28; King «. Justices V. Collins, 19 Wend. 56 ; People B. of Cambridgeshire, 1 Dow. & Ry. Attorney General, 22 Barb. 114; 325; Queen ». Harland, 8 Ad. & E. People ». Brennan, 39 Barb. 651; 826; Queen d. Old Hall, 10 Ad. & E. Freeman d. Selectmen of New Ha- 248 ; Kendall v. The United States, ven, 34 Conn. 406; State «. Robin- 12 Pet. 534; Citizen's Bank of son, 1 Kan. 188; Swan «. Gray, 44 Steubenville v. Wright, 6 Ohio St. Miss. 393 ; People v. Adam, 3 Mich. 318 ; People o. Collins, 7 Johns. Rep. 487 ; Howland v. Eldredge, 43 N. Y. 549 ; State v. Secretary of State, 33 457; Judges of Oneida Common Mo. 293; .Es^orJe Selma & Gulf R. Pleas «. The People, 18 Wend. 79 ; Co. 46 Ala. 423. Ex parte Bacon and Lyon, 6 Cow. Space will not permit of further 892 ; ^a; y arte Benson, 7 Cow. 363 ; citution of authoi'ities, and the People 1). New York Common Pleas, above are selected from among the OHAP. I.] OEiaiN AND NATTJEE OF WEIT. 27 § 25. From the nature of the remedy as thus far disclosed, it is obvious that it relates only to the enforcement of duties incumbent by law upon the person or body against whom the coercive power of the court is invoked. It is not, therefore, an appropriate remedy for the enforcement of contract rights of a private or personal nature, and obligations which rest wholly upon contract, and which involve no question of trust or of official duty, can not be enforced by mandamus. A contrary doctrine would necessarily have the effect of substi- tuting the writ of mandamus in place of a decree for specific performance, and the courts have, therefore, steadily refused to extend the jurisdiction into the domain of contract rights.* And since the writ is not granted ex debito justitiw upon the assertion of a right, if it is apparent to the court that the rights of the parties are dependent upon a contract which is then the subject of proceedings in chancery for specific per- formance, in which the entire matter may be determined, a mandamus will not be granted. ^ § 26. It is important that a person seeking the aid of a mandamus for the enforceipent of his rights should come into court with clean hands, and where the proceedings have been tainted with fraud and corruption, the relief will be denied, however meritorious the application maybe on other grounds.' So if the granting of the writ would have the effect of encouraging petty litigation and of delaying other and more important interests, sufficient grounds are presented to justify the court in withholding the relief.* § 27. The granting of the writ of mandamus is the exercise of an original and not of an appellate jurisdiction, the writ itself being an original process. Hence it follows that in those states where the courts of last resort are devoid of original leading cases in which the doctrine 16 Ohio St. 308; Benson «. Paull, 6 of the text has been recognized and El. & Bl. 373; State v. County Court applied. For applications of the of Howard, 39 Mo. 375. principle to courts, public officers, ^ King».Wheeler, Ca. temp. H. 99. private corporations and municipal ^ Commonwealth v. Henry, 49 Pa. corporations, see the chapters on St. 530. those subjects, p«s*. 'People v. Hatch, 33 111. 134, ' State «. Zanesville Turnpike Co. opinion of Walkeu, J. 28 MANDAMUS. [PAET I. jurisdiction and vested with only appellate powers, such courts can not ordinarily exercise jurisdiction by mandamus, i An exception, however, is recognized where the issuing of the writ is necessary in aid of the appellate powers of such courts, and in such cases it is not regarded as an original proceeding, but one instituted in aid of the appellate jurisdiction possessed by the courts. 2 § 28. In England, the jurisdiction by mandamus, as we have seen, was formerly exercised exchisively by the court of kings bench, the writ being regarded as a branch of the king's prerogative, and therefore granted only by his own court, in which by legal fiction he was supposed always to be present. By the common law procedure act of 1854,' however, the law of mandamus and the practice and procedure in administering the relief were entirely revolutionized. This act extends the jurisdiction to all the superior courts in the kingdom, which are authorized to grant the relief in connection with any civil action, save ejectment and replevin, the pleadings, practice and procedure therein being assimilated as closely as possible to those prescribed in- ordinary civil actions for the recovery of damages. The effect of this sweeping enactment has been to place mandamus proceedings upon much the same footing as ordinary personal actions, and although the statute expressly preserves the jurisdiction of the kings bench as formerly exer- cised, its necessary result would seem to be the almost total annihilation of the prerogative features of the remedy, reduc- ing it to a personal action for the protection of individual rights.* But, although the act entitles the plaintiff to demand a writ of mandamus, requiring the defendant to fulfill any duty in which the plaintiff is personally interested, either together with or separately from any other demand which may be enforced in the action, the right of the plaintiff to the aid of a mandamus is regarded as a substantive right in and of ' Howell II. Crutchfleld, Hemp. 99 ; of Dubuque, Morris, 42. Morgan v. The Register, Hardin ' 17 & 18 Victoria, Chap. cxxv. (3nd edition), 618 ; Daniel v. County See Appendix C. Court of Warren, 1 Bibb, 496. * See Appendix C. ' United States v. Commissioners CHAP. I.J ORIGIN AND NATURE OF WRIT. 29 itself, and not a mere adjunct to the action already begun. » It is held, however, that the act has not extended the remedy to the enforcement of merely private and personal contracts, such for example as an agreement between two parties to exe- cute a lease, and as to all such contracts the party aggrieved is still left to pursue the ordinary legal remedies.* § 29. In the United States, the jurisdiction by mandamus is usually exercised by the courts of general common law juris- diction throughout the different states. It is also exercised by the courts of last resort in many of the states, some- times as a part of their original jurisdiction, iixed by the organic law of the state, and in other cases only in aid of their appellate powers. In the federal courts the writ is granted only in aid of an existing jurisdiction, and when necessary to the exercise of powers already conferred by law. And while it is doubtless competent for congress to confer upon the cir- cuit and district courts of the United States the power of granting writs of mandamus as an original jurisdiction, such power has never yet been conferred, and these courts are strictly limited in the use ol this extraordinary remedy to cases where it is necessary in aid of a jurisdiction already acquired.^ § 30. Many of the states of this country have regulated the use of this remedy, to a considerable extent, by statute, but the tendency of the courts seems to be to adhere to the well estab- lished rules of the common law governing the jurisdiction in all cases where these rules are applicable. In illustration of this tendency, where it is enacted by statute that the writ shall issue to " any inferior tribunal, corporation, board, or person, ' Fotherby ». Metropolitan R. Co. U. S. District Court for Louisiana. 15 L. T. R. N. S. 243. But by an act of congress approved s Benson ■». Paull, 6 Bl. & Bl. 373. Marcli 3, 1873, it is provided thut ' See Bath County v. Amy, 4 Chi- the proper circuit court of the cago Legal News, 209, 13 Wal. 344; United States shall have jurisdiction Mclntyre v. "Wood, 7 Cranch, 504 ; to hear and determine all cases of Graham v. Norton, 15 Wal. 437; mandamus to compel the Union Marbury v. Madison, 1 Cranch, 49 ; Pacific Railway Company to oper- Unlted States v. Smallwood, 1 Chi- ate its road as required by law. 17 cago Legal News, 321, decided in Statutes at Large, 509. 30 MANDAMUS. [PAET I. to compel the performance of an act wMch the law specially enjoins as a duty resulting from an office, or trust, or station ; or to compel the admission of a party to the use or enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, officer, board or person," and it is also provided by the same statute that the writ " shall be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law," the courts will construe the latter section as a limitation upon the powers conferred by the former, and not as an enlargement of those powers. And the presumption wiU be indulged in such case that the legislature of the state, in pre- scribing this statutory remedy, had in view the nature and extent of the remedy by mandamus as known at the common law, and as used in other states of the union. The courts wiU, therefore, in administering relief by mandamus under such a statute, be governed by the same conditions and limitations which prevailed at common law, and will not issue the writ in cases where another adequate remedy is provided by law.'^ ' Kimball r>. Union Water Company, 44 Cal. 178. CHATTER II. OF MANDAMUS TO PUBLIC OFFICERS. I. NaTUK^ and GEOtlNDS OF THE JUKISDICTION, § 31 II. Election, Title and Possession of Offices 49 III. Amotion from Public Offices, 67 IV. Books, Recoeds and Insignia op Office, 73 V. Ministerial Officers, 80 VI. Auditing and Fiscal Officekb 100 VII. ExECUTrvE Officers, 118 VIII. Legislative Officers 135 IX. Taxing Officers 137 I. Nature aud G-eounds of the Jurisdiotion. 31. Frequent use of the writ against public ofScers. 33. The writ a stimulus to official actipn ; but it does not create powa 33. Relator should show personal interest. 34. Distinction between ministerial and discretionary duties. 35. Statutory penalty, or action upon official bond, no bar to the reliel 86. Not granted before duty is actually due. 37. Officer must be actually in office ; eflect of expiration of term. 38. Continuing duty may be enforced against successors. 39. Relator's right must be clear; third parties involved. 40. Writ does not lie to compel unlawful act. 41. Demand and refusal, when necessaty^ distinction between publU and private duties. 42. Duties resting in judgment and discretion not controlled by mandamus. 43. The rule illustrated. 44. Further illustra,tions of the rule. 45. Further illustrations of the rule. , 46. The rule applicable to all classes of officers. 47. The rule as applied to ministerial officers. 48. The rule as applied to executive officers. (81) 32 MANDAMUS. [PAKT I. § 31. The most important branch or the jurisdiction by mandamus is that which pertains to the writ as a remedy for the inaction or misconduct of public officers, charged with the performance of duties of a public nature, and the writ is most frequently granted to set in motion such officers and to compel their action in cases where they have refused or neglected the performance of their official duties. In the chapters upon private and municipal corporations * wiU be found a full dis- cussion of the law of mandamus as applicable to corporate officers, while in the chapter upon courts, the author has endeavored to state fully and in detail the principles govern- ing the relief when applied as a corrective of inaction on the part of judicial officers. It is proposed in the present chapter to lay down the more general rules governing relief by mandamus as applicable to all public officers, and then to pro- ceed with a discussion of the law of mandamus as affecting the title and possession of the office, with further discussions of the principles governing the use of the writ as a corrective of inaction on the part of ministerial, executive and legislative officers. § 32. It is to be premised that the jurisdiction by man- damus over the official acts of public officers, is exercised for the purpose of stimulating rather than of restraining their action. And while officers who are backward or dilatory in the exer- cise of their functions may properly be set in motion by mandamus, yet when they are once in motion and are proceed- ing to discharge a duty imposed upon them by law, they are no longer subject to the control of the writ.* With this distinction kept in view, it may be stated generally that where the law enjoins upon a public officer the performance of a specific act or duty, obedience to the law may, in the absence of other adequate remedy, be enforced by mandamus.* It is to be observed, however, that the writ neither creates nor con- fers power upon the officer to whom it is directed, but merely commands the exercise of powers already existing. It will ' See post, Chapters IV and V. ^ United States v. Commissioners ^ School Directors v. Anderson, 45 of Dubuque, Morris, 42. Pa. St. 388. CHAP. II.J TO PUBLIC OFFICEES. 33 not, therefore, lie to compel an officer to perform an act which, withont the mandate of the court, would be unlawful for him to perform.! And to warrant a court in granting the writ against a public officer, such a state of facts must be presented as to show that the relator has a clear right to the performance of the thing demanded, and that a corresponding duty rests upon the officer to perform that particiilar thing.^ And where substantial doubt exists as to the duty whose perform- ance it is sought to coerce, or as to the right or power of the officer to perform the duty, the relief will be withheld, since the granting of the writ in such case would render the jjrocess of the court nugatory.^ So the fact that there are such diffi- culties in the way of performing the duty in question as to render the writ nugatory, if granted, is a sufficient objection to the exercise of the jurisdiction.* Indeed, the proposition is clearly and indisputably established, that mandamus will never lie to command the performance of an act which it is impos- sible for the officer to perform.^ § 33. It is, of course, essential to the granting of the writ as against public officers, that the relator on whose apj^lication the relief is sought, should show some personal interest wliose protection he seeks to enforce. And it may be stated as a general principle, that mandamus will not lie to compel action upon the part of public officers, where it is apparent that the relator has no direct interest in the action sought to be coerced, and that no benefit can accrue to him from its performance.* § 34. An important distinction to be observed in the outset, and which will more fully appear hereafter, is that between duties which are peremptory and absolute, and hence merely ministerial in their nature, and those which involve the exer- cise of some degree of official discretion and judgment upon the part of the officers charged with their performance. As regards the latter class of duties, concerning which the officer ' .Johnson v. Lucas, 11 Humph. 306. * State v. Lehre, 7 Rich. 334. = Houston etc. R. Co. v. Randolph, » Ackerman v. Desha County, 37 24 Tex. 317. Ark. 457. 3 Williams «. Smith, 6 Cal. 91; « State v. Commissioners of the People e. Porquer, Breese, 68. School Fund, 4 Kan. 361. 3 34 MANDAMUS. [PAKT 1. is vested witli discretionary powers, while tlie writ may prop- erly command him to act, or may set him in motion, it will not further control or interfere with his action, nor will it direct him to act in any specific manner. But as to the Ibrmer class of cases, where mandamus is sought to compel the per- formance of a plain and unqualified duty, concerning which the officer is vested with no discretion, a specific act or duty being by law required of him, the writ will command the doing of the very act itself. ^ § 35. While the general rule is well established, that the existence of an adequate and specific remedy by the ordinary process of the courts, constitutes a suflScient bar to interfer- ence by mandamus, a mere statutory penalty against the officer for failure to perform an oflScial duty is not regarded as such a remedy, and the writ will go, notwithstanding such pen- alty. ^ Nor will the fact that the party aggrieved by the non- performance of official duty has a remedy by an action against the officer upon his official bond, prevent the courts from lend- ing their aid by mandamus to enforce the duty, the remedy upon the bond being inadequate for the grievance.^ § 36. The duty whose performance it is sought to coerce by Tnandamus, must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform. Thus, the writ will not go to the treasurer of a municipal corporation, to require payment of money out of a fund not yet in his possession and to be there- after received, such a degree of diligence not being contem- plated by the law. And until the officer has actually received the money and refused to apply it as directed by law, there has been no failure in the performance of his duty and consequently no ground for a mandamus.* § 37. It is regarded as of the very essence of the proceed- ing by mandamus to compel the performance of official duties, that there should be some officer or officers in being, havinjr ' Humboldt Co. v. County Cora- ' State v. Dougherty, 45 Mo. 294. missioners of Churchill, 6 Nev. 30. * State v. Burbanlc, 32 La An. 398: 'King V. Everet, Ca. temp.H. 261. State v. Dubuclet, 24 La. An. 10. CHAP. II.] TO PUBLIC OM'IOEES. 35 the power and whose duty it is to perform the act sought, since if there be no such oflicers it is obvious that the man- date of the court would be nugatory. ^ And where persons have been elected to certain offices, but have never qualified, and have never assumed any of the functions of the offices, nor acted in any manner, they can not be treated as officers de facto and are not subject to control by mandamus.^ So it is a sufficient objection to issuing the writ to compel the per- formance of an official duty, that the officer \& functus officio, and therefore unable to comply with the writ, so that it would prove unavailing if granted. ^ And where the term of office of the respondent has expired, and he resides beyond the jurisdiction of the court, the writ will be withheld.* So where it is apparent that before the issuing and service of the alternative writ requiring respondent to make a payment out of certain public funds, his term of office had expired and his successor had been elected and qualified, to whom he had turned over all the public funds in his hands, these facts con- stitute a good return to the writ, the proceedings appearing to have been in good faith. ' So it has been held that the fact that respondent's term of office was about to expire, and that the time yet remaining was insufficient to allow the ^:ie- rorm- ance of the duty required, was a sufficient return to the writ.' § 38. Where, however, a continuing and perpetual duty is incumbent upon certain public officers, the rule would seem to be otherwise. And in such case, the fact that the officers hold their tenure by annual election, and that their term of office has almost expired, will not prevent the court from inter- fering, since the duty, being continuing in its nature, may be enforced against the officers generally and their successors.'' § 39. Since mandamus lies only to compel the perform- ance of duties clearly prescribed by law, it will not be granted where there is any substantial defect in the proof of the rela- ' State ®. Supervisors of Beloit, 31 ' State v. Lynch, 8 Ohio St. 347. Wis. 380. ' King ®. Commissioners of Sew 2 Id. ers, Ld. Raym. 1479. 3 State V. "Waterman, 5 Nev. 333. ' People «. Collins, 19 Wend. 56. ^ Mason «. School District, 30 Vt. And see People v. Champion, 16 487. Johns. Rep. 61. 36 MANDAMUS. [pART I. tor's right. 1 Especially will the courts refuse in such a case to interfere, when it is apparent that the interests of third parties, not before the court, are involved, even though the officer should express his willingness to perform the duty required. 3 Thus, the writ will not go to the commissioner of the general land office of a state for the purpose of procur- ing a title to public lands, where it is apparent that there are other parties in interest claiming title to the land, who are not represented in the proceedings for mandamus, since the court will not pass upon their rights on a proceeding in which they are not parties. ^ § 40. The writ is never granted for the purpose of com- pelling the performance of an unlawful act, or of aiding in carrying out an unlawful proceeding. Thus, it will not lie where its resiilt would be to subject respondents to an action of trespass, should they perform the act commanded.* JSTor will it go to a state comptroller, requiring him to transfer upon the books of the state certificates of the funded indebt- edness of the state, which have been sold under execution, in a manner different from that prescribed by law for the transfer. 5 § 41. The question of the necessity of a demand and refusal to perform the duty in controversy, is one not wholly free from doubt, and an apparent conflict of authority may be observed in the adjudications upon this subject. The doctrine has been broadly asserted, and is sustained by the most respectable authorities, that in no event will the writ be granted to compel the performance of an official duty until demand ' Bracken v. Wells, 3 Tex. 88. can not, therefore, be maintained " Bracken «. Wells, supra; Tabor without its consent, and then only 1). Commissioner of Land Office, 39 in the manner indicated by that Tex. 508. consent. Hosner v. De Young, 1 ° Tabor ii. Commissioner of Land Tex. 764 ; League v. De Young, 2 Office, 29 Tex. 508. And in Texas Tex. 497. But the doctrine is plainly the doctrine Is maintained that the contrary to the weight of authority, writ will not lie to a state officer, as as we shall hereafter see. to a surveyor, to compel a survey of .* Ex parte Clapper, 3 Hill, 458. a tract of land, since the proceed- And see People «. Commissioners ings against the officer are virtually of Highways, 27 Barb. 94. proceedings against the state, and ^ Menard v. Shaw, 5 Tex. 884. CHAP. II.J TO PUBLIC 0FFI0EE8. 37 has been made upon the officer and he has refused to act.' Other cases have gone only to the extent of insisting upon proof of demand and refusal before granting the writ in an absolute or peremptory form.^ The better doctrine, however, and one which has the support of strong authority, is that which recognizes a distinction between duties of a public nature and affecting only the public at large, and those of a private nature specially affecting the rights of individuals. And it is held, where the person aggrieved has a private interest in or claims the immediate benefit of the act sought to be coerced, that he must first make a demand upon the officer to lay the foundation for relief by mandamus. ^ But as regards duties of a strictly public nature, incumbent upon public officers by virtue of their office, and which they are sworn to perform, no demand and refusal are necessary as a condition precedent to relief by mandamus. In such cases, no individual interests being affected, there is no one specially empowered to demand performance of the duty, and no neces- sity for a literal demand and refusal. The law itself stands in the place of a demand, and the neglect or omission to per- form the duty stands in the place of a refusal; or, in other words, the duty makes the demand and the omission is the refusal.* Again, it has been held that if the duty is of such a character that its performance can not be expected without demand, the writ will not issue until demand is made; but where the duty is plain and specific, relating to an act which the law requires of public officers, no demand is necessary. ^ It must, however, in all cases clearly appear that the officer against whom the jurisdiction by mandamus is invoked, is ' State v. The Governor, 1 Dutch. sioners of Allegheny, 37 Pa. St. 237 ; 331; State ». Lehre, 7 Rich. 334; States. County Judge of Marshall, State V. Davis, 17 Minn. 439. And 7 Iowa, 186 ; Same v. Bailey, lb. 390. see Condit ^.Commissioners of New- * State i>. County Judge of Mar- ton Co. 25 Ind. 432. shall, 7 Iowa, 186 ; State 11. Bailey, ' Leonard «. House, 15 Geo. 478 ; Ih. 390 ; Con-.monwealth u. Commis- Mauran v. Smith, 8 R. I. 193. sioners of Allegheny, 37 Pa. St. 287. 8 Oroville & Virginia R. Co. v. ' Humboldt Co. v. County Com- Supervisors of Plumas, 37 Cal. 854. missioners of Churchill, 6 Nev. 30. And see Commonwealth «. Commis- 38 MANDAMFS. [pART I. actually in default in the performance of some act wliich the law specially enjoins as a duty resulting from his office, i § 42. We come next to the consideration of a fundamental rule, underlying the entire jurisdiction by mandamus, and especially applicable in determining the limits to the exercise of the jurisdiction over public officers. That rule is, that in all matters requiring the exercise of official judgment, or resting in the sound discretion of the person to whom a duty is con- fided by law, mandamus will not lie, either to control the exercise of that discretion, or to determine upon the decision which shall be finally given. And wherever public officers are vested with powers of a discretionary nature as to the per- formance of ^ny official duty, or in reaching a given result of official action they are required to exercise any degree of judg- ment, while it is proper by mandamus to set them in motion and to require their action upon the matters officially entrusted to their judgment and discretion, the courts will in no man- ner interfere with the exercise of their discretion, nor attempt by mandamus to control or dictate the judgment to be given. ^ Indeed, so jealous are the courts of encroaching in any man- ner upon the discretionary powers of public officers, that if any reasonable doubt exists as to the question of discretion or want of discretion, they will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer. 3 § 43. Illustrations of the rule and of its application are so ' Cincinnati College «. La Eue, 22 Justices, 4 Dow. & Ry. 735 ; State v. Ohio St. 469. Robinson, 1 Kan. 188 ; State «. Bon- ° United States «. Seaman, 17 How. ner, Busb. L. 257 ; Commonwealth 235 ; United States v. The Commis- ». Cochran, 6 Binn. 456 ; Same v. sioner, 5 Wal. 563 ; Secretary v. Mc- Same, 5 Binn. 87 ; Seymour v. Ely, Garrahan, 9 Wal. 298; State «. 37 Conn. 103; Swan ■». Gray, 44 Board of Liquidators, 23 La. An. Miss. 393; People ». Adam, 3 Mich. 388 ; State «. Shaw, lb. 790 ; State «. 427 ; Howland v. Eldredge, 43 N. Y Warmoth, 23 La. An. 76 ; People v. 457. And see, for the application Collins, 19 Wend. 56 ; People v. At- of the same principle to corpoi'ate torney General, 22 Barb. 114; Peo- officers, the chapters on Private und pie !). Brennan, 39 Barb. 651 ; Free- Municipal Corporations, man v. Selectmen' of New Haven, ^ State ii. Warmoth, 23 La. An. 76, 34 Conn. 406; King e. Licensing CHAP. II.] TO PUBLIC Of^FICEES. 39 numerous that it will suffice, in this connection, to indicate only a few of the more important. It will be observed that most of the cases in which the rule has been recognized and applied, are cases in which the powers of the officer, as to the act sought to be coerced, were powers of a quasi-judicial nature. And where the official duty in question involves the necessity upon the part of the officer of making some investi- gation, and of examining evidence and forming his judgment thereon, a proper case is presented for the application of the rule. Thus, where the question involved was, whether the relator, a printer to the senate of the United States, was enti- tled to receive from the superintendent of public printing and to print certain public documents, and in determining the question of relator's right, it was necessary for the superin- tendent to investigate the usages and practice of congress upon the subject, and to examine evidence before forming his ultimate judgment, it was held that the duty was so far judi- cial in its nature that its performance could not be controlled by mandamus.^ So the issuing of a patent for public lands by the commissioner of the United States land office, being a duty which involves the exercise of judgment and discretion in passing upon the proofs presented and in determining the questions of fact involved, mandamus for its performance will not lie to the secretary of the interior, or to the land commissioner. 2 § 44. The duties of a board of registration, authorized by law to decide upon the qualifications of electors, are regarded as duties which, though not strictly judicial, yet require the exercise of judgment and discretion. Where, therefore, one has been refused the right of suffrage by such a board, he can not by mandamus compel them to admit him as an elector. ^ So where magistrates are entrusted by law with the power of granting licenses for public houses, and have acted upon an application and in the exercise of their discretion have refused 1 United States v. Seaman, 17 Garrahan, 9 Wal. 398. How. 335. ^ Freeman v. Selectmen of New ' United States v. The Commis- Haven, 34 Conn. 406. Bioner, 5 Wal. 568 ; Secretary ». Mc- 40 MANDAMUS. [PART I. the license, they can not be compelled by mandamus to re-hear the application.! And where the duty of selecting a route for a highway is coniided by law to a special commission or board of officers, their decision will not be reviewed coUaterally on proceedings by mandamus to compel an inferior board to construct the highway as thus located. ^ § 45. Where, under the laws of a state, the attorney general is empowered to determine in what cases proceedings by information in the nature of a quo warranto shall be instituted to try the title to any public office or franchise, he is regarded as vested with a discretion, the exercise of which is in its nature a judicial act, over which the courts have no control. And when such officer has declined to institute proceedings to try the right to an office, mandamus does not lie to reverse his decision, or to compel him to bring the action. ^ § 46. In tracing the application of the rule under discus- sion, it remains to be noticed that it is not limited to officers of a judicial nature, or whose duties are in the main quasi- judicial, but it is extended to all officers, whether of an execu- tive or ministerial nature, who are, as to certain official acts or duties, vested with powers of a quasi-judicial character. And while, as we shall hereafter see in our examination of the law of mandamus as applicable to ministerial officers, the writ is freely granted to compel the performance of strictly ministerial duties, yet where officers, whose functions are chiefly minis- terial, are yet entrusted with the performance of certain special duties requiring the exercise of judgment and discretion, they can not, as to such duties, be controlled by mandamiis, and while they may be set in motion and com]3elled to act, the courts will not dictate what their action shall be.* Thus, where it is made the duty of a clerk of a court to approve the bonds of all county officers, the act of approval is considered •King V. Licensing Justices, 4 States. Robinson, 1 Kan. 188; State Dow. & Ry. 735. v. Bonner, Busb. L. 257 ; Comraon- ^ People V. Collins, 19 Wend. 56. wealths. Cochran, 5 Binn. 87; Same ° People V. Attorney General, 22 «. Same, 6 Binn. 456 ; Seymour v. Barb. 114. Ely, 37 Conn. 103 ; Swan v. Gray, 44 * Howland v. Bldredge, 43 N. Y. Miss. 393; People v. Adam, 3 Mich, 457 ; People «. Brennan, 39 Barb. 651 ; 427. CHAP. II.J TO PUBLIC OFI'ICEES. 41 as BO far judicial in its nature, that mandamus will not lie to control the judgment of the clerk as to the approval of a bond presented.! So where the location of a county seat is by law entrusted to the judgment of certain commissioners appointed for that purpose, who have perfoi'med their duty and fixed upon the location, their decision can not be controlled or altered by mandamus.^ § 47. It is held, in further illustration of the rule as applied to ministerial officers, that where the auditor general of a state is aiithorized to withhold tax deeds for land sold for unpaid taxes, if he shall discover that, on account of irregular assess- ments, or for any other cause, the lands should not have been sold, he is vested with powers so far judicial in their nature that mandamus will not lie to require him to issue a deed in such case. 3 And where it is made the duty of town assessors, whenever the consent of a majority of the tax-payers of the town shall be obtained to the issuing of town bonds in aid of a railway, to make affidavit of such fact, mandamus will not go to compel the assessors to make such affidavit, their judgment being final upon the matter.* While, in such case, it is con- ceded that the courts may by mandamus compel the officers to proceed and consider the evidence on which their decision must necessarily rest, the writ will not require them to come to any particular conclusion, since this would be, in effect, to take away their discretionary powers, and substitute the opin- ion of the court in lieu thereof ^ And where a superintend- ent of highways is entrusted with the inspection of improve- ments and repairs made upon the highways by the contractor for that purpose, and with the power of determining as to their sufficiency, and the contractor is to be paid only upon the superintendent's certificate of sufficiency, mandamus will not lie to compel the superintendent to issue his certificate, when in the exercise of his judgment he has decided the contrary.* § 48. As an illustration of the rule as applied to officers whose general functions are of an executive nature, it is held, ' Swan 1). Gray, 44 Miss. 393. 457. ' State V. Bonner, Busb. L. 357. ' Id. » People V. Adam, 8 Mich. 427. « Seymour v. Ely, 37 Conn. 103. '' Howland i>. Eldredge, 43 N. Y. 42 MANDAMUS. [pAliT I. under an act of legislature providing that the public advertis- ing of a municipal corporation shall be given to four news- papers having the largest circulation, to be designated by the mayor and comptroller of the city, since the determination of the question of fact as to which papers have the largest circu- lation necessarily involves the hearing and consideration of evidence, that the writ will not go to compel such officers to designate particular papers. ^ It is proper, however, to require the officers to meet and act upon the question, without direct- ing them to act in a particular manner, or to reach a particular result. 2 So where a board of state officers are entrusted by law with the letting of contracts for the public printing of the state, and are vested with certain discretionary powers in determining what bids shall be accepted, the courts will not interpose by mandamus to control such discretion.^ II. Election, Title and Possession of Offioks. g 49. Questions of title and possession usually determined by quo wari'anUj 50. Reasons for refusing mandamus in such cases. 51. Illustrations of the rule. 53. Mandamus allowed to swear an officer. 53. Not allowed in cases of disputed title; when allowed to compel issuing of commission. 54. Will not lie to compel appointments to office. 55. Incidents to title and election to public offices. 56. The writ lies to canvassers of election returns. 57. But not where they are entrusted with judicial powers ; nor where they have already acted. 58. The rule illustrated ; mandamus refused to compel holding of elec- tion. 59. Not allowed to canvassers of elections before time to act. 60. The writ granted to compel issuing of certificate of election. 61. Foundation for the rule. 63. Application of the rule where office is already filled. 63. The rule applied regardless of general functions of officer. 64. Writ not granted where it would prove unavailing. 65. When allowed to compel issuing of commission. 66. Will lie to compel registration of voter's name. ' People 1). Brennan, 39 Barb. 651 ' State «. lilobinson, 1 Kan 188 Id. CHAP. II.] TO PUBLIC OFFIOBES. 43 § 49. In determining the extent to which the courts may properly interfere by mandamus with questions relating to the title to and possession of public offices, it is necessary to recur to an important principle, frequently asserted throughout these pages, and which may be properly termed the controlling principle governing the entire jurisdiction by mandamus. It is that in all cases where other adequate and specific remedy exists at law for the grievance complained of, the writ of man- damus is never granted. Applying this principle to cases where relief has been sought to determine disputed questions of title and possession of public offices, the courts have almost uniformly refused to lend their aid by mandamus, since the remedy by information in the nature of a quo warranto is justly regarded as the most appropriate and efficacious remedy for testing the title to an office, as well as the right to the pos- session and exercise of the franchise. And the rule may now be regarded as established by an overwhelming current of authority, that where an office is already filled by an actual incumbent, exercising the fanctions of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, nor to determine the disputed question of title. In all such cases, the party aggrieved who seeks an adjudication upon his alleged title and right of pos- session to the office, will be left to assert his rights by the aid of an information in the nature of a quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute. 1 And whenever it is apparent on the face of the ' People «. Corporation of New delpliia. 6 Whart. 476 ; King «. York, 3 Jolins. Cas. 79; People v>. Mayor of Colchester, 2 T. R. 260; Supervisors of Greene, 12 Barb. 217 ; Queen b. Derby, 7 Ad. & E. 419; Anderson b. Colson, 1 Neb. 172; King «. Winchester, lb. 215. But Bonner ii. State of Georgia, 7 Geo. see, contra, Conlin ■;;. Aldrich, 98 473 ; St. Louis Co. Court v. Sparks, Mass. 557, where mandamus was 10 Mo. 118; State «. Rodman, 43 granted to compel the members of a Mo. 256 ; People ■«. Common Council school committee to allow the rela- of Detroit, 18 Mich. 338; Under- tor to act as a member of the com- wood «. White, 27 Ark. 382 ; People mittee, although they had pre- v. Forquer, Breese, 68; State v. viously recognized a third person as Dunn, Min. (Ala.) 46 ; Common- a member and allowed him to act wealth ■». Commissioners of Phila- in that capacity. And in Harwoovl 44 MANDAMUS. [PAET I. pleadings, that the issue presented involves a determination as to the person properly elected to an office, or entitled to exercise its functions, the writ of mandamus will be withheld. ' § 50. Aside from the existence of another adequate remedy by proceedings in quo warranto to test the title of an incum- bent to his office, it is a sufficient objection to relief by man- damus in such a case, that the granting of the writ woidd have the effect of admitting a second person to an office already filled by another, both claiming to be duly entitled thereto, and resort must still be had to further proceedings to test the disputed title. ^ And the rule finds still further support in the fact that, ordinarily, the determination of the question of title to a disputed office upon proceedings in mandamus, would be to determine the rights of the de facto incumbent in a proceeding to which he was not a party. ^ § 51. In illustration of the rule under consideration, it has been held that where one claims to have been elected by the common council of a city to the office of assessor, and alleges that the council wrongfully deprive him of his office by refus- ing to count one vote in his favor, no case is presented author- ■V. Marshall, 9 Md. 83, mandamus 7 Pa. St. 42; People d. Forquer, was held to be the proper remedy Breese, 68; People «. Corporation to determine the title to a disputed of New York, 3 Johns. Gas. 79, office, and to restore the relator "Where the office is already filled," thereto, even though quo warranto say the court in People «. Corpora- would lie, on the ground that the tion of New York, "by a person latter remedy might prove inade- who has been admitted and sworn, quate by reason of delay, and that and is in by color of right, a man- while judgment of ouster might be damus is never issued to admit given against the incumbent, such another person; because the cor- judgment would not necessarily poration, being a third party, may install the claimant into the office, admit or not at pleasure, and the and he might still be obliged to rights of the party in office may be resort to other process to obtain injured, without his having an possession. opportunity to make a defense. ' Anderson «. Colson, 1 Neb. 173. The proper remedy, in the first ' King «. Mayor of Colchester, 2 instance, is by an information in the T. R. 260. nature of a quo warranto, by which ' St. Louis Co. Court ». Sparks, 10 the rights of the parties may be Mo. 118 ; Commonwealth ». Perkins, tried." CHAP. II.J TO PUBLIC OFFICERS. 45 izing the court to interfere by mandamus. ^ And where a decision upon the application for mandamus would have the effect of deciding which of two parties is entitled to exercise the chief executive power of the state, neither of them being before the court, the relief will be withheld and the parties will be left to proceedings in quo warranto, even though the relator shows a clear, legal right, which has been violated. ^ § 52. While, as we have thus seen, the courts refuse to lend their aid by mandamus to determine disputed questions of title to office, or to put a claimant into possession, a distinc- tion has been drawn between such cases, and cases where the writ is sought merely for the purpose of swearing in a claim- ant to an office, and in the latter class of cases the relief has frequently been allowed. * But it is to be borne in mind that the effect of a mandamus to swear one into an office is not to create or confer any title not already existing, and while it may be the consummation of relator's title, if he have any, it creates no new title.* § 53. In all cases of doubt as to the election of officers, where the validity of the election is the chief point in contro- versy, the courts will not interfere by mandamus, but will put the aggrieved party in the iirst instance to an information in the nature of a quo warranto. And before a mandamus will be granted to compel the recognition of one as an officer, the court will require that judgment of ouster shall have been ' People V. Common Council of tained by Pakkbr, C. J., that by- Detroit, 18 Mich. 338. granting the writ to swear one into " People V. Forquer, Breese, 68. an office, the court gives him a legal ' King «. Clarke, 2 East, 75 ; possession, and he is then as much Churchwardens case, Carth. 118; entitled to the office as though in King 1). Rees, lb. 393; opinion of actual possession, and may then Pabkbii, C. J., in Rex. v. Dean and maintain his rights without the Chapter of Dublin, Stra. 536; Queen assistance of a mandamus. It is, V. Mayor of Hereford, 6 Mod. Rep. however, impossible to reconcile 309 ; King v. Knapton, 3 Keb. 445 ; this doctrine with the current of Anon. Freem. K. B. 21 ; Ex parte authority, and the principle as Heath, 3 Hill,42. stated in the text is believed to con- ■•King (J.Clarke, 3 East, 75. In vey the true doctrine deducible from Rex «. Dean and Chapter of Dub- the decided cases. lin, Stra. 536, the doctrine is main- 46 MAKDAMUS. [PAET I. given against the incumbent de facto. ^ While there would seem to be no impropriety in the use of the writ to compel the issuing of a commission to a person duly elected to an office, yet to justify the exercise of the jurisdiction for this purpose, it is essential that the relator should show a good title to the office claimed. ^ And since the claimant can derive no title from an illegal or invalid election, the writ will not go to compel the issuing of a commission, where the laws of the state providing for the registration of voters have not been complied with.^ § 54. The writ will not go to compel the making of an appointment to fill an office, where it has already been filled by the person who is properly vested with the power of appoint- ment, especially if abetter and more convenient remedy exists than by mandamus.* Nor will it be granted to compel the making of an appointment to office, where it is apparent that the appointing power is about to proceed in the matter. Thus, where the management of the affairs of a state university is entrusted to a board of regents, and the aid of a mandamus is invoked to compel the regents to appoint to a particular pro- fessorship established by law, the writ will not be granted if it appears by the return that the regents have taken the neces- sary preliminary action in the matter, having appointed a committee for that purpose, and where it is not shown that they seek to evade the law by^ unnecessary delay. ' § 5.5. l^otwithstanding the rule denying relief by man- damus to compel admission to a disputed office or to determine the title thereto, there are certain incidents connected with the question of title and election to public offices, which from their nature involve the exercise of merely ministerial pow- ers, and are hence properly sxibject to control by mandamus. Among these incidents are the canvassing of election returns, the issuing of certificates of election to the person entitled thereto, and the issuing of a commission to a claimant duly ' Commonwealtli «. County Com- ' King «. Minister of Stoke Dam- missioners, 5 Rawle, 75. erel, 1 Nev. & P. 56. " State V. Albin, 44 Mo. 346. "People v. Regents of University, 'Id. 4 Mich. 98. OHAP. II.J TO PUBLIC OFFICEES. 47 elected. In all these cases we shall find no difficulty in arriv- ing at a correct result, by keeping constantly in view the distinction heretofore alluded to, between duties of a purely ministerial nature, involving the exercise of no official discre- tion, and duties quasi-judicial in their nature and calling for the exercise of a reasonable degree of official judgment and discretion. § 56. And, in the first place, as regards the duties of canvassing votes cast at an election and of making a return of the person elected, while it is doubtless true that such duties partake of a quasi-judicial nature, as far as concerns the determination of whether the papers received by the can- vassers and purporting to be election returns, are, in fact, such returns, and are genuine and intelligible, and substantially authenticated as required by law, yet beyond these preliminary questions the duties of canvassers are regarded as chiefly ministerial. These questions being determined, the remaining duties of such canvassers in deciding who is elected are merely mechanical or ministerial, involving simply the labor of count- ing the votes returned and determining who has received- the highest number. Wherever, therefore, such boards of can- vassers have neglected or refused to perform this duty, or have only performed it in part, and have neglected to examine or include all the returns presented to them, they may be com- pelled by mandamus to proceed with the performance of their duty, leaving all questions of the validity of the election to be determined by the tribunals provided by law for that purpose, i For example, where it is alleged that a state board of canvass- ers of elections have neglected and still neglect to canvass the votes returned upon an election for governor, and to determine and certify in the manner prescribed by law who has been elected to the office, sufficient cause is shown for issuing the alternative writ.^ But in proceedings by mandamus to 'Clark ^.MoKenzie, 7 Bush. 533; ley, lb. 390; Kisler c. Cameron, 30 State V. Gibb3, 13 Fla. 55; Ellis v. Ind. 488. County Commissioners of Bristol, 2 "State v. Eobinson, 1 Kan. 17. But Gray, 370 ; State «. Eobinson, 1 Kan. the writ was refused in this case on 17 ; State V. County Judge of Mar- the ground that the election was not shall Co., 7 Iowa, 186; Same v. Bai- held in the proper year. 48 MANDAMUS. [PAET I. compel a board of canvassers to perform their official duties, allegations of fraud and bribery in tbe election are not a proper subject for the consideration of the court. '- § 57. It is to be borne in mind, however, that the general rule as laid down in the preceding section, applies only to cases where the functions of the canvassers are strictly minis- terial in their nature, and where, as is sonietim.es the case, the" powers of such officers are extended to and cover the decision of questions strictly judicial in their nature, the rule has no application. Thus, where boards of canvassers are empow- ered with the exercise of judicial functions over the whole question of the election, being authorized not only to perform the ordinary duties of canvassers, but also to hear and determine all contested elections, and no appeal lies from their decision, the courts wiU refuse to interfere by mandamus with the exercise of their discretion or judgment, and will regard their decision as final and conclusive. ^ So where a special act of legislature providing for the location of a county seat, makes it the duty of a judge of the county to canvass the returns of the election upon the question of location, such officer is regarded as vested with powers of a judicial nature in deter- mining \vhetlier the elections have been held and the returns properly made in the diiferent precincts, and also as to the sufficiency of the returns and their genuineness. Where, therefore, he has, in the exercise of his judgment, passed upon and rejected certain returns, mandamus will not go to compel him to again pass upon and to receive them.^ And, generally, it will suffice to say that the writ does not lie to canvassers of elections to compel them to canvass the returns after they have once performed this duty and the matter has passed beyond their jurisdiction, even though they have erred in rejecting votes which should have been received.* In such case the person returned as elected being actually in possession 'State V. County Judge of Mar- 'Arberiy ». Beavers, 6 Tex. 457. shall, 7 Iowa, 186. " People e. Supervisors of Greene, ^ Grier «. Shackleford, 2 Brev. (3nd 13 Barb. 217; State «. Rodman, 43 edition) 549 ; Maj^or of Vioksburg «. Mo. 25fi. Rainwatei 47 Miss. 547. CHAP. II.] TO PTJBLIO OFFICBES. 49 of the office under color of right, the question of title to the office can only be determined by proceedings in quo warranto against the incumbent, and it is always a sufficient objection to the exercise of the jurisdiction that the writ, if granted, would be nugatory or ineffectual. ^ And in proceedings by mandamus involving collaterally the right of contesting claim- ants to an office, the court will not review the decision of a board of canvassers, such decision being treated as conclusive except in proceedings by quo warranto. ^ § 58. In conformity with the doctrine of the preceding section, it is held that where a statute directs a board of county commissioners to order an election for county officers, pro- vided a certain number of qualified electors shall petition for such election, and it is made the duty of the board to ascertain whether the requisite number of voters have joined in the petition, and whether they are qualified electors, mandamus does not lie to control them in the exercise of this duty, since it partakes of a judicial nature, and the board are required to determine upon the exercise of their own judgment. Where, therefore, they have acted officially upon the matter and have refused to order an election, mandamus will not go to compel them to make such order.* § 59. In no event will the vsrit issue to canvassers of election returns, to control or interfere with their action before the time when it is made by law their duty to act, since there can be no omission or neglect to perform a duty, when the time has not yet arrived for its performance.* And no mere threats or predetermination on the part of the canvassers, before the time when the performance of the duty is required at their hands, can alter the rule or vary its application. ^ § 60. The duty of canvassing election returns and ascer- taining the person elected, being, as we have thus seen, a ministerial duty, involving the exercise of no discretion, and properly subject to the coercive action of the writ of man- damus, it follows necessarily that the same rule may be applied ■ Id. reka, 8 Nev. 309. « People v. Stevens, 5 Hill, 616. 'State v. Carney, 3 Kan. 88. ' State 11. Commissioners of Eu- ' Id. 4 50 MANDAMUS. [part I, to the duty of issuing a certificate of election to the person who has received the greatest number of votes. And the rule is equally well established, that where canvassers of elec- tion returns, or other officers, are entrusted by law with the duty of issuing a certificate of election to the person receiving the highest number of votes, the performance of this duty, being merely a ministerial act, involving the exercise of no judicial functions, is a proper subject of control by the writ of man- damus on refusal of the officer or board to perform the act. ' Thus, where inspectors of city elections, who are regarded as officers within the meaning of the law, are entrusted simply with ministerial duties, such as casting up the votes given for each person and declaring the result, without any authority to determine as to the validity of the election, or the legality of the votes received, their functions are regarded as being in no sense judicial, and mandamus will go to compel them to issue 'In re Strong, 30 Pick. 484; Peo- ,ple -u. Rivers, 27 111. 342; People «. Hilliard, 29 111. 419; Brower ». O'Brien, 2 Ind. 433; Kisler «. Cam- eron, 39 Ind. 488 ; State v. Circuit .Judge of Mobile, 9 Ala. 338; State 0. Gibbs, 13 Pla. 55 ; Ellis ». County Commissioners of Bristol, 2 Gray, 870; Clark u. McKenzie, 7 Bust, '533. And see People d. Matteson, 17 111. 167; State ti. Lawrence, 3 Kan. 95. In the case last cited, Mr. Justice Lindsay, delivering the opinion of the court, says: "The duties of the examiners are merely mechanical or mathematical. They may possibly judge as to "whether or not the returns of the election are in proper form and legally attested; but after that they must compute the votes cast for the sev- eral candidates, and issue certifi- cates of election in accordance with the result. * * Such duties are purely ministerial, and the olBcers composing the examining board can be compelled by mandamus to per- form them. * * Nor do we regard it an available objection that the board has already acted in the matter, as in this case. Inferior judicial tribunals can not be con- trolled in their action by mandamus. They can be compelled to act ; but having discretion in all judicial questions, they must in such be allowed to determine how they shall act. It is not so, however, with ministerial oflBcers. Until they have performed the exact duty im- posed upon them by law, they must be considered as in default ; and in a case like this it would be a legal anomaly to allow the examining board to rely upon the fact that they had issued the certificate of election to a party who had not received the largest number of votes, contrary to an express pro- vision of the law, as a sufBoient reason why they should not be com- pelled to perform an imperative duty." CHAP. II.J TO PUBLIC OFFIOEES. 51 a certificate of election to the person who has received the .highest number of votes, i § 61. The rale, as thus stated, in no manner conflicts with the principle heretofore discussed, that mandamus does not lie to compel admission to an office, since the courts have recog- nized a clear distinction, between the two classes of cases. And while the granting of the writ to admit an applicant to an office would necessarily have the effect of determining the title thereto, no such effect can possibly attach to the writ when applied to compel the issuing of a certificate of election. The certificate of election is by no means conclusive as to the right to the office, but is merely evidence of a prima facie title thereto, upon which, it is true, the holder may afterwards be enabled to prosecute his right in another form of proceed- ing, but which does not of itself carry title or determine the right. 2 In all such cases, the courts proceed by mandamus upon the presumption that the counting of the votes and ascertaining the majorities, and then giving certificates of the result, are merely ministerial acts, and that the canvassers, from the nature of the case, can have no discretion in deter- mining who is elected, this being a matter of mathematical calculation, or a conclusion to be drawn from the facts, and in no manner subject to the control of the officer upon those facts. ^ The granting of the writ under such circumstances, neither has the effect of turning out the actual incumbent of the office, nor of affecting his rights in any manner, since he is not before the court.* It merely places the relator in a position to be enabled to assert his right, which he might otherwise not be enabled to do.'' § 62. From the nature of the principles thus far con- sidered, and which are believed to have the undoubted sanc- tion of the best authorities, it necessarily follows that the fact of the office being already filled, by an incumbent de facto, 'Kisler «. Cameron, 39 Ind. 488. » State®. Circuit Judge of Mobile, estate B. aibbs, 13 Fla. 55; Peo- 9 Ala. 338; In re Strong, 20 Pick. pie r>. Billiard, 39 111. 419. And see 484. Ellis «. County Commissioners of ■• People o. Rivers, 37 111. 242. Bristol, 3 Gray, 370. 'Brower ». O'Brien, 2 Ind. 433 52 MAWDAMIJS. [PAET I. affords no bar to the granting of the writ to compel the issu- ing of a certificate of election, i And ordinarily the fact that the canvassing oflBcers have given a certificate of election to another person, will not prevent the granting of the writ to require them to certify the election of the relator, he appear- ing to be properly entitled thereto.^ Otherwise, however, where proceedings are already pending to procure relief in another manner. And where upon a canvass of votes a cer- tificate of election has been issued to a person, who is there- upon commissioned and enters upon the performance of his duties, mandamus will not go to the officer who has issued the certificate, requiring him to certify the election of another per- son, where proceedings at law are already pending to test the validity of the election, in a court which has rightfully acquired jurisdiction of the case, and which is fully empow- ered to do justice in the premises. ^ But the writ has been ' In re Strong, 20 Pick. 484. See, however, Magee v. Supervisors of Calaveras, 10 Cal. 376, vphere it is held that if the canvassers have performed their duty, and in the exercise of their discretion have de- clared the result of the election adversely to the claimant, he can not hftve mandamus to compel the issuing of a certificate, his remedy being by proceedings in quo war- ranto. 2 Ellis V. County Commissioners of Bristol, 2 Gray, 370; Clark •». McKenzie, 7 Bush. 523; State «. Lawrence, 3 Kan. 95; People v. Rivers, 27 111. 342; People ». Bil- liard, 39 111. 419. This was a peti- tion for mandamus -to compel the clerk of a county court to certify to the governor of the state the elec- tion of relator as justice of the peace. It was returned, inter alia, that another person had been duly elected and had received the certifi- cate. Caton, C. J., for the court. says: "It is objected, that the de- fendant has already issued a certifi- cate for another, to whom has been issued a commission for the same ofllce. That can not affect the rights of the relator. As well might it be contended that a certificate issued to one without color of an election, would prevent the clerk from issu- ing the certificate to the relator. We do not propose to turn the oth- ers out of ofilce on an application for a mandamus. They are not par- ties to this record, and are not bound by this adjudication. All that the court can do, and all it is asked to do in this proceeding, is to compel the county clerk to issue to the re- lator a certificate of election, which the proof shows he was entitled to. Our right and our duty to do this were fully considered and settled in The People ex rel. ii. Matteson, 17 111. 167. A peremptory mandamus .should have been issued." » People V. Cover, 50 111. 100. CHAP. II.] TO PXJBLIO OFFIOEBS. 53 granted to compel tlie issuing of a certificate of election to the relator by the incumbent de facto of the office which was in dispute.! § 63. The application of the rule is not affected by the general nature or functions of the officer against whom the writ is sought, provided he be properly authorized to issue the certificate to the person entitled thereto. And the juris- diction by mandamus in such cases has been exercised against boards of canvassers,^ county clerks,^ and clerks of court,* the courts being influenced in granting the relief, rather by the nature of the duty to be performed, than by the general functions of the officer by whom it is to be performed. Accordingly where it is made by law the duty of a secretary of state to issue certificates of election to officers declared by a board of canvassers to be elected, mandamus will go requir- ing him to issue the certificate. ^ And the fact that the secre- tary has given a certificate to another person, who has not been declared entitled thereto by the board of canvassers, constitutes no sufficient return to the alternative writ.^ § 64. It is a sufficient objection to granting the writ to require a board of officers to declare the relator elected to a particular office, that the term for which he claims to have been elected will expire before any effectual action can be had in the case, since the courts will not interpose where the writ would prove unavailing. ' ISTor will the writ be granted where there has been no actual vacancy in the office, and the present incumbent is rightfully in possession. ^ So it will be with- held where the applicant has not shown himself to be duly elected, and the only effect of interfering would be to declare the election void.' § 65. Mandamus has been recognized as the appropriate ' Brower s. O'Brien, 2 Ind. 423. « Id. ^ Clark «. McKenzie, 7 Bush, 523 ; ' Woodbury ». County Commis- Ellis D. County Commissioners of sioners, 40 Me. 304. Bristol, 2 Q-ray, 370; State d. Gibbs, ^ Rose v. County Commissioners, 13 Fla. 55. 50 Me. 243. ' People D. Rivers, 27 111. 242. » State v. Judge of Ninth Circuit, < Brower t>. O'Brien, 2 Ind. 428. 18 Ala. 805. ' State v. Lawrence, 8 Kan. 95. 54 MANDAMUS. [PAET I. remedy to compel the issuing of a commission to an officer properly entitled thereto. Thus, where under the constitution and laws of a state, the secretary of state is held to be only a ministerial officer, in as far as concerns the duty of affixing his official signature and the seal of the state to commissions issued by the governor of the state, he having no supervisory powers in determining whether such official acts as require his attestation are constitutional or unconstitutional, mandamus lies to compel him to sign and seal a commission issued by the governor.! § 66. Mandamus has also been held an appropriate remedy to protect the right of a voter to a registration of his name upon a poll list. And a registering officer, appointed under the laws of the state for this purpose, may be compelled by the writ to register the names of voters applying for registration and properly entitled to vote.* III. Amotion Feom Public Offices. § 67. Mandamus the proper remedy to correct a wrongful amotion from office. 68. Removal without charges or sworn evidence a ground for mandamus. 69. Distinction between absolute power of amotion and power to remove for due cause. 70. "Writ not granted to restore officer merely defaoto. 71. Ecclesiastical offices, amotion from corrected by mandamus only where temporalities are attached. 73. Return to writ insufficient where notice to accused is not shown before amotion. § 67. "We have already seen that the courts refuse to lend their extraordinary aid by mandamus to determine disputed questions of title to office, or to compel the admission of a claimant in the first instance, where he has never been in pos- ' State D. Wrotnowski, 17 La. An. v. The Governor, 39 Mo. 388 ; Haw- 156. And see Magruder v. Swann, kins o. The Governor, 1 Ark. 570 ; 25 Md. 173. But see, contra, State «. Taylor s. The Governor, lb. 21. The Governor, 1 Dutch. 381 ; State '^ Davies «. McKeeby, 5 Nev. 369. CHAP. II.J TO PUBLIC OFPICBES. 55 session of the office or exercised its franchises.^ Where, however, one has been in the actual and lawful possession and enjoyment of an office, from which he has been wrongfully removed, a diflferent case is presented. And mandamus is recognized as a peculiarly appropriate remedy to correct an improper amotion from a public office, and to restore to the full enjoyment of his franchise a person who has been improp- erly deprived thereof. ^ And where one has been wrongfully deprived of his office by the illegal appointment of another, the writ will go to compel his restoration, even though the person appointed in his stead be in possession de facto. ^ § 68. The general common law rule, that to warrant the removal of an officer, speciiic charges should be brought against him and all witnesses in the matter should be sworn, is held applicable even to offices unknown to the common law and created by statute, and a disregard of this rule in the amotion of an officer may authorize the aid of a mandamus to compel his restoration. And the writ will go to a board of commissioners appointed by an act of legislature for the per- formance of certain public duties, requiring them to restore a member whom they have displaced in disregard of the common law principle above stated.* - § 69. While, in the application of the rule under discussion, ' See ante, § 49. cognizance in an extraordinary '' State D. Common Council of manner of tlie riglit to an office Watertown, 9 Wis. 254 ; Lindsey ■». contested by two persons, where the Lucliett,30Tex. 516; Drew D.Judges dispute might be effectually deter- of Sweet Springs, 3 Hen. & M. 1; mined in the ordinary course of jus- Geter ■!). Commissioners, 1 Bay, 354 ; tice. While the doctrine of this Singleton ti. Same, 2 Bay, 105. But case is certainly more in harmony see, contra. State v. Dunlap, 5 Mart. with the general principle, denying 371, where it is held in an able relief by mandamus where other opinion, that the courts should not adequate remedy may be had by ordinarily interfere by mandamus law, than is the rule laid down in to restore an officer who has been the text, it is opposed to the current deprived of his office, since he may of authority upon the particular maintain an action at law for dam- point in question, ages, and the intruder may be ousted ^ Drew ■o.Judges of Sweet Springs, by proceedings in quo warranto. 3 Hen. & M. 1. To interfere by mandamus in such ' Qeter «. Commissioners, 1 Bay, a case would, it is held, be taking 354; Singleton u. Same, 2 Bay, 105. 56 MAWDAMTT8. [PAET it is conceded that if the power of removal from an oiBce rests in the discretion of any other officer or body of officers, the exercise of that discretion will not be interfered with by man- damns, yet a distinction is taken between cases where such power of removal rests absolutely in the discretion of other officers, and cases where they are only empowered to remove "for due cause." In the latter class of cases, the words "for due cause " are regarded as a limitation upon the power of removal, and the determination of what is such cause is deemed a question of law, whose ultimate determination rests, not with the officers empowered to remove, but with the courts. In other words, while the judgment of inferior boards or tribunals upon matters which properly rest in their discretion will not be controlled or interfered with by mandamus, their judgment as to what the law allows them to determine, or as to the extent of their jurisdiction, may be so controlled. ^ And 'State V. Common Council of Watertown, 9 "Wis. 254. This was a mandamus sued out by the relator, Grill, to compel the common council of the city of Watertown to restore him to the office of superintendent of city schools, from which he had been removed by the council. By an act of legislature the council ' were vested with the power of re- moval " for due cause." The court, Paine, J., upon this point say, p. 359 : " This is a clear limitation of the power of removal, and if the council should remove without 'due cause,' its action would be entirely unauthorized. But it was said that the council had a discre- tion to determine what was 'due cause.' This may be true, if noth- ing more was meant than that the council had to determine for itself in acting under this power, whether there was 'due cause' of removal, and that in thus determining it, it must exercise its best judgment or discretion. This is undoubtedly so. But this does not make it a case of discretion, within the rule that a discretion vested by law will not be controlled by mandamus. For in every instance where it is conceded that a mandamus is a proper rem- edy to compel the performance of a specific duty required by law, the officer or body from whom it is required has to judge in the first instance, whether he should perform it or not. So all inferior tribunals that have power to proceed only when certain jurisdictional facts are established, must judge for themselves according to their best discretion, whether such facts exist. But this does not by any means make their action a case of discre- tion not to be controlled. Such discretion exists only where there is a decision on some subject which the law has given the power to decide on with the intent that such decision should be final unless changed by some direct appeal or review. * * Where a power to CHAP. II.] TO PUBLIC 0PFICEK8. 57 where it is shown by the return that the grounds relied upon to justify the removal, relate to acts committed during a prior term of office, involving no moral delinquency, and which, if violations of duty at all, were well known to the appointing power at the time of re-appointment of the officer, such acts are not deemed sufficient cause for the removal. Under such circumstances the re-appointment is regarded as a condonation of the offence, and mandamus will lie to restore the officer. ^ And a distinction is recognized between the jurisdiction by mandamus to compel the restoration of an officer to an office from which he has been wrongfully removed, and the power of appointment to the office. For, while the courts will not interfere with the discretion of inferior tribunals as to whom they shall appoint to offices within their control, they may and remove 'foi- due cause' is given, the words ' for due cause ' operate as a limitation on the power. And yet, if the authority to determine finally what was ' due cause,' were given to the same body vested with the power of removal, the limitation would be entirely defeated and the power of removal absolute. What is ' due cause ' for the removal of an ofiicer is a question of law to be deter- mined by the judicial department, and in the absence of any statutory provision as to what should consti- tute such cause, should be deter- mined with reference to the nature and character of the office and the qualifications requisite to fill it." 'State «. Common Council of Watertown, 9 Wis. 254. Say the court, Paine, J., p. 261 ; " There are a number of charges, but the return admits that all except the last, relate to acts or omissions of the relator during the prior term of oflice. Now, without examining those charges, to determine whether they would sliow good cause of removal, if occurring during the term when *he removal was sought, which we think very doubtful, yet we think it a sufficient answer to them, that they did not relate to anything occurring during that term. We do not say that in no case could acts done during a prior term justify a removal. Thus, if after a treasurer was elected, it should be discovered that during his prior term he had committed a defalcation, and been guilty of gross frauds in tlie man- agement of his office, it might per- haps be just ground for removal. But where, as in this case, the charges show nothing more than a mere neglect of some formal duty, ' which the law may have required, involving no moral delinquency, and which, if violations of duty at all, must have been well known to the appointing power, we do not think, where they relate entirely to acts during a prior term of office, that they constitute due cause in law for the removal of an officer. For such offences, if offences at all, his re-appointment should be re- garded as a condonation." 58 MAWDAMirs. [part I. will compel tliem by mandamus to restore one to an office to whicli he is justly entitled, but of whicli lie has been wrong- fully deprived.^ § 70. It is to be borne in mind that the rule as above stated is applied only in favor of those who are clearly entitled, de jwre, to the office from which they have been removed. And where the writ is sought to compel the restoration of one claiming the right to an office, it is not sufficient for him to show that he is the officer de facto, but it is also incumbent upon him to show a clear, legal right, and failing in this he is not entitled to the peremptory writ.^ § 71. As regards offices of an ecclesiastical or spiritual nature, questions of much nicety have arisen in determining how far the civil courts may interfere to restore one who has been improperly removed from his office. The true distinction taken, both in England and America, in fixing the limits of the jurisdiction by mandamus over such cases, turns upon the question as to whether the offices, though in the main eccle- siastical in their nature, yet carry with them certain temporal rights or endowments entitling them to the protection of the civil courts, or whether they are purely spiritual in their ' State w. Common Council of to the office all the time ; and he Watertown, 9 Wis. 254. " But it is asks that the council, which has, objected in the return," say the without authority, removed him court, p. 263, " that the council can from that to whicli he is entitled, not restore the relator, because they shall retrace its illegal steps, vacate have not the power of appointment, its proceedings, and remove the but that this power belongs to the obstacles which it has unlawfully school commissioners. But clearly placed in his way. He does not ask it is not an appointment that the them to appoint him, but by vacat- relator seeks, or is entitled to, if he Ing their unauthorized proceedings has been illegally removed. If it against him, to restore him to that was to be an appointment by the to which he is already appointed, appointing power, it is very certain Their return that tlie power of that this court could not control its appointment belongs to the school discretion or compel it to appoint commissioners, is no answer to this any particular person. But this demand. The demurrer is sustained proceeding is based on an entirely and the peremptory Avrit awarded." different theory. Its claim is that "Justices of Jefferson Co. p. Clark, the relator does not need any ap- 1 Mon. 82. And see Justices of pointraent, but that his title is Spencer Co. Court e. Harcourt, 4 B. and has been complete and perfect Mon. 499. CHAP. II.J TO PTJBLIO OPFICEES. 59 functions and incidents, unconnected with any temporalities or emoluments.! In the former class of cases, the power of the civil courts to restore one who has been wrongfully removed is well established. Thus, in the case of the curacy of a chapel, endowed with certain temporal rights, of which the curate has been wrongfully deprived after a long and uninterrupted enjoyment and possession, a fitting case is presented for the interference of the civil courts. ^ In such case, mandamus to restore is said by Lord Mansfield to be the true specific remedy, the relator being wrongfully dispossessed of an office or function drawing with it certain temporal rights, where in the established course of justice the law has provided no other remedy. ^ So it lies, in England, to restore a sexton to his place.* But it will not lie to the doctors commons to restore a proctor, the office being regarded as purely spiritual and not subject to control by the kings bench. ^ And where the office is purely ecclesiastical, unconnected with any stipend, salary or emolument, as in the case of the pastorate of a church, whose incumbent receives no regular salary or stipend, but is supported entirely by private and voluntary contribu- tions, the civil courts will refase to lend their aid by man- damus to correct an amotion from the office.^ ISTor, in such 'BexD.Blooer, Burr. 1043; Union says Mr. Justice Houston, p. 129, Church v. Sanders, 1 Houst. 100. " as stated in his application for the ''Rex ». Blooer, Burr. 1043; Run- writ, is to this effect: That he is kel 1). Winemiller, 4 Har. & Mc- a duly constituted elder minister in Hen. 429. And see Brosius v. Reu- the church in question, which ex- ter, 1 Har. & J. 480; S. 0. lb. 551. tends, as he alleges, into several of But see Smith «. Erb, 4 Gill, 437. the states of the Union, and that in ' Rex v. Blooer, supra. So in Eng- virtue of Ms office , as such elder land the writ lies to compel the minister, he is the pastor, or minister trustees of a dissenting church to in charge, of a religious society, admit a minister to the pulpit who incorporated under the general law has been duly elected pastor of the for such purposes, by the name of church. Rex «. Barker, Burr. 1365. the Union Church of Africans, in *Anon. Freem. K. B. 31. Wilmington, in this state, and that ^ Lee's case, Carth. 169; Lee v. as such, it is his right to preach in Oxenden, 3 Salk. 280; Rex b. Lee, the said church whenever he may 3 Lev. 309. see proper to do so, and to admin- * Union Church v. Sanders, 1 ister the ordinances and discipline Houst. 100. " The petitioner's case," thereof, and to exercise a pastoral 60 MANDAMUS. [PAET case, does the fact that the trustees of the church are ineorpo- charge over it. That the present corporate trustees of the church have forcibly excluded him from it, and have debarred and prevented him from exercising the rights and functions appertaining to his office ; and that, having no other legal remedy in the premises, he prays the court to issue a writ of man- damus, directed to the said church, commanding them to admit him to preach in the church whenever he may see proper to do so, and to exercise the rights before stated, or show cause to the contrary. The statement of facts contained in his petition is full and particular, and he sets forth at much length such portions of the constitution, disci- pline and usages of the church as he conceives to be necessary to establish the official character in which he appears before the court, and the ecclesiastical rights and privileges which he claims to per- tain to it. But it contains no allega- tion, and there is no proof, that there is any emolument or compen- sation of any kind attached to the office of elder minister, or preacher in charge of the church in ques- tion, or that there is any temporal right or benefit, stipend or salary, dependent apon or incident to it. On the contrary, it conclusively appears that the claim and right upon which he relies, is purely spir- itual and ecclesiastical in its nature, and that it involves no legal or temporal right whatever ; and it is now well settled, both in this coun- try and in England, that when such is the case, mandamus will not lie." Citing Rex «. Blooer, Burr. 1043 ; Rex V. Barker, Burr. 1365 ; King v. The Bishop of London, 1 Will. R. 11; King «. The Churchwardens of Croydon, 5 T. R. 713; Runkel i>. Winemiller, 4 Har. & McHen. 429. * * Upon the authority of these cases, and the principle which they have so clearly established in regard to this writ, I am of the opinion that the court below erred in enter- taining the application of Ellis Sanders for a writ of mandamus in this case. There is no endowment, no emolument, alleged or shown to be annexed to the pastoral charge to which he claims to be entitled, and from which he complains that he has been and is still excluded by the trustees ; and as there is no tem- poral or legal right shown to be involved in the matter, and as it appears that the only right which he asserts in regard to the office and functions claimed by him is merely an ecclesiastical or spiritual right, it is not a case for the interposition or within the jurisdiction of a court of law, and conseqently it was not • a case in which a writ of mandamus should have issued below. For it is not the province of a court of law to enforce such rights. A court of law can not enforce a merely moral or a purely equit- able right, much less a merely spiritual or ecclesiastical right. When, however, the possession or enjoyment of a temporal right, as the enjoyment of an endowment or an emolument, is attached to the ecclesiastical office and its func- tions, and is consequently depend- ent upon the exercise and enjoyment of the spiritual right, the law, out of the regard which it entertains for the temporal right and benefit of OHA.P. II.] TO PUBLIC OFFIOEES. 61 porated under tlie general law of the state to take charge of the temporalities of the church, affect the application of the rule.i § 72. Since a summons to answer the charges preferred against an officer is necessary to constitute a proper amotion, it follows that a return to the alternative writ to restore the officer removed is insufficient if it fails to show such summons or notice.* TV. Books, Reooeds and Insignia of Office. § 73. Mandamus lies for custody of official records, seals and insignia. 74. The rule illustrated. 75. Degree of title necessary. 76. Writ lies for custody of public buildings. 77. Not granted where title to office is the real point in issue. 78. Not allowed where other remedy may be had at law. 79. Allowed to compel holding of office or court at county seat; but not to determine election for removal of county seat. § 73. The principles thus far discussed and illustrated, as to the extent to which the courts will interfere by mandamus with questions of title to and possession of offices, and inci- dents relating thereto, have shown the extreme jealousy of the courts to lending their extraordinary aid in any case where its effect would be to determine disputed questions of title, all such questions being properly determinable by proceedings in quo warranto. It remains to consider such incidents con- nected with public offices as the books, records, seals and other insignia of office, which, though intimately connected with the official position, do not form a necessary part of it. And it may be asserted as a general rule, that mandamus lies to com- pel the transfer or delivery of the books, seals, muniments, which it has jurisdiction, will prevent a failure of justice in this interpose by mandamus to restore respect, which would otherwise the party wrongfully excluded occur." from bis ecclesiastical functions, 'Union Church v. Sanders, supra. where he has no other specific legal "King v Gaskin, 8 T. R. 209. remedy for the temporal right, ta 62 MANDAMUS. [PAKT I. records, papers and other paraphernalia pertaining to a puhlic oiBce to the person properly entitled to their custody, and the writ may even be extended to the case of public buildings per- taining to an office, and may require the surrender of such buildings to the person legally entitled thereto. ^ § 74. The branch of the jurisdiction under discussion is of ancient origin and was exercised by -the kings bench at an early day.^ And wherever the term of an officer has expired, he may be compelled by mandamus to turn over to his successor all records and books pertaining to his office to which the pub- lic are entitled to access. ^ And the writ may even be granted for this purpose in aid of the person declared duly elected to the office and holding the certificate of election, and duly sworn, although proceedings are pending to test the legality of his election, since the court by granting the writ does not finally determine upon the legality of the election.* So the writ will go to the former mayor of a city, requiring him to deliver'to the newly-elected mayor the common seal of the municipality. ^ And while it is true that quo warranto is the only method of ' People 1). Kilduff, 15 111. 493 ; ball «. Lamprey, 19 N". H. 215 * King People V. Head, 35 111. 325 ; Crowell «. Payn, 1 Nev. & P. 524. V. Lambert, 10 Minn. 369 ; Atherton ° See King i). Owen, 5 Mod. Rep. V. Sherwood, 15 Minn. 331 ; State «. 314. Layton, 4 Dutch, 344; Burr ?;. Nor- = Rex v. Clapham, 1 Wils. 305; ton, 25 Conn. 103 ; Felts «. Mayor, People t>. Head, 25 111. 325. 3 Head, 650; King B. Owen, 5 Mod. 'People v. Head, 35 111. 335. Rep. 314; Rex v. Clapham, 1 Wils. "Whatever our decision may be," 305 ; King «. Ingram, 1 Black. W. say the court, per Caton, C. J., " it 50. And see Hooten b. McKinney, can not affect in the least, the con- 5 Nev. 194 ; Bonner v. State of Geor- test now going on in the legal tri- gia, 7 Geo. 473. See as to man- bunals. We can only determine damns to compel the delivery of whether the relator is entitled to the books and records pertaining to records, etc., pertaining to the oflSce. corporate offices, American Railway It is true this involves, incidentally. Frog Co. s. Haven, 101 Mass. 398 ; the inquiry as to who is entitled to State D. Goll, 3 Vroom, 385; St. enjoy the office for the time being, Luke's Church v. Slack, 7 Cush. but we by no means settle the ques- 226 ; Rex «. Wildman, Stra- 879 ; tion whether the relator was legally Anon. 1 Barn. K. B. 403. And see elected or not," And see Crowell v. as to delivery of books and records Lambert, 10 Minn. 369. pertaining to municipal offices, ' People v. Kilduff, 15 111. 493. Walter v. Belding, 24 Vt. 668; Kim- , CHAP. II.J TO PUBLIC OPPICEES. 63 determining disputed questions of title to public offices, yet a mere groundless assumption of an election on the part of the respondent, and a pretended exercise of the functions of the office de facto, will not deter the court from granting the mandamus. 1 § 75. As regards the evidence of his title which the relator must show who seeks the aid of mandamus to recover posses- sion of official records and insignia, it is held that, having received a certificate of election and qiialified in the manner provided by law, he is, prima facie, entitled to their posses- sion and may enforce his rights by aid of the writ.^ And upon the application for mandamus, the court will not go behind the certificate of election and try the relator's actual title. It is, therefore, wholly immaterial whether the relator was eligible to the office in question, or whether he was duly elected thereto, since to try such issues would be to determine the title upon proceedings in mandamus, which the courts will never do.* Otherwise, however, where the respondent has actually obtained judgment in his favor in proceedings to test the election, and in such case the relator is not entitled to the writ, even though he has appealed from the judgment against him and the appeal is still pending.* § 76. The writ maybe granted to compel the surrender of public buildings to the officer properly entitled to their custody as an incident to his office, where a former officer refuses to sur- render them. 5 In such case, the term of the person in posses- sion having expired, he is regarded as in possession without any colorable right or title of any nature, and is therefore a mere intruder, for whose expulsion a prompt and efficient remedy is necessary." So where the sherifi" of a county is entitled by law to the custody of the county jail, of which he has been wrongfully deprived, he is entitled to the aid of a mandamus to restore him to possession.'' And where it is ' People V. Kilduff, 15 111. 493. » State •». Layton, 4 Dutch. 244; = Crowell «. Lambert, 10 Minn. Telts ». Mayor, 3 Head, 650 ; Burr n. 369. Norton, 25 Conn. 103. ' Atherton v. Sherwood, 15 Minn. " State «. Layton, 4 Dutch. 344. 231. ' Felts «. Mayor, 3 Head, 650 ; ' Allen v. Robinson, 17 Minn. 113. Burr v. Norton, 25 Oonn. 103. 64 MAWDAMTJS. [PAET I. made bylaw the duty of the county clerk of a particular county to provide for the transfer of certain records to a new county created out of the old, the writ will go to compel the perform- ance of this duty.i § 77. But if it be apparent to the court that, instead of a proceeding whose object is only to get possession of the booka and insignia of the office, the writ is invoked, in reality, to test the title to the office, and that the question of title is the real point in issue, it will refuse to lend its aid by mandamus. In all such cases, the parties will be left to a determination of the disputed questions of title by proceedings upon informa- tion in the nature of a quo warranto, since this is the only remedy in which judgment of ouster can be had against an actual incumbent, and the person rightfully entitled can be put into possession of the office. ^ The court will not, therefore, upon an application for a mandamus to procure possession of official records, inquire into the rights of a de facto incumbent of the office, and if it is apparent that the relator's rights can not be determined without such an investigation into respondent's title, mandamus will not lie.s § 78. It is worthy of note that the cases in which the courts have interposed by mandamus for the surrender of books, papers and other insignia pertaining to public offices, are cases where the person in possession claimed under some color of right, and are, for the most part, cases where the books and records were claimed by a former incumbent of the office, or person claiming to be entitled to its possession and to the exer- cise of its functions. And where, under the laws of a state, mandamus can only issue to an inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office or trust, the writ will not lie for the surrender of official records and insignia, if it is apparent from the record that the respond- ent is merely a private person, not claiming the right of pos- session by virtue of any office or trust.* In such case, ample ' Hooten Kendall v. The United States, 13 Pet. 524; Citizens Bank of Steuben- ville D. Wright, 6 Ohio St. 318 ; Peo- ple V. Commissioner of State Land Oflace, 33 Mich. 270; North "Western N. C. R. Co. v. Jenkins, 65 N. C. 173;. Queen «. Southampton, 1 Best & Smith, 5 ; State v. Wrotnowski, 17 La. An. 156 ; State ®. Barker, 4 Kan. 379 ; State v. Magill, lb. 415 ; People 0. Perry, 13 Barb. 306; People v. Taylor, 45 Barb. 139; People v. Miner, 37 Barb. 466 ; Silver v. The People, 45 111. 335; Strong's case, Kirby, 345; State v. Meadows, 1 Kan. 90; Simpson v. Register of Land Office, Ky. Dec. (3nd edition), 317; People v. Collins, 7 Johns. Rep. 549 ; People v. Shearer, 30 Cal. 645 ; Hempstead «.TJnderhill's Heirs, 30 Ark. 837; Mitchell v. Hay, 37 Geo. 581 ; People v. Loucks, 38 Cal. 68; People v. Gale, 33 Barb. 503; People «. Fletcher, 3 Scam. 483 ; At- torney General v. Lum, 3 Wis. 507 ; Fowler v. Peirce, 2 Cal. 165; Peo- ple V. Brooks, 16 Cal. 11; Dan- ley «. Whiteley, 14 Ark. 687 ; State V. Bordelon, 6 La. An. 68; Turner ». Melony, 13 Cal. 631 ; Bryan v. Cat- tell, 15 Iowa, 538 ; State «. Gamble, 18 Fla. 9; State u. Secretary of State, 83 Mo. 393 ; People v. Smith, 43 111. 319; JEx parte Carnochan, Charlt. 316; £!x parte Selma & Gulf R. Co. 46 Ala. 433 ; State v. Draper, 48 Mo. 313 ; Black v. Audi- tor of State, 36 Ark. 337; People^ V. Supervisors of Otsego, 51 N. Y. 401. ^ Six parte Carnochan, Charlt. 316 ; People V. Gale, 33 Barb. 503 ; People D.Fletcher, 2 Scam. 482; Attorney General v. Lum, 3 Wis. 507 ; People V. Loucks, 28 Cal. 68; Gulick v New, 14 Ind. 93. " People V. Fletcher, 3 Scam. 482. 68 MANDAMUS. [PAET I. bonds, otter than that of determining the sufficiency of the surety, the writ has been allowed, notwithstanding another person fills the office de facto and is wrongfully exercising its functions. 1 But where the clerk is vested with powers of a quasi-judicial nature as to the approval of bonds of county officers, the rule is otherwise, and in such case mandamus wiU not lie to compel the approval. ^ § 82. While the authorities are not altogether free from doubt as to the right of a judgment creditor to compel the clerk of a court by mandamus to issue an execution upon his judgment, the true test to be applied in such eases seems to be, whether the remedy against the clerk by action at law for a refusal to perform his duty is sufficient to give full redress to the party injured. And where it is held that an action at law against the clerk for damages upon his bond, or a modon in the proper court, would aiford ample relief to the judgment creditor, the courts will withhold relief by mandamus.^ On the other hand, notwithstanding the existence of a remedy by action against the clerk upon his official bond for damages, if such remedy be inadequate to procure for the party aggrieved the specific relief to which he is entitled, mandamus will lie.* Thus, the writ will go to the clerk of a court commanding him to issiie a writ of assistance in aid of an order of the court for the delivery of particular property.^ So where plaintiff in an action for the recovery of real property obtains a judgment entitling him to a writ of habere facias possessionem,, but the clerk of the court refuses to issue such writ, an appropriate case is presented for relief by mandamus, since an action at law upon the bond of the clerk for damages would be mani- festly inadequate. " And the writ has been allowed to compel a clerk to issue a citation in a cause,'' as well as to issue an ordinary execution upon a judgment. ^ So, too, it has been granted by the supreme court of a state to compel the clerk ' Gulick «. New, 14 Ind. 93. torney General v. Lum, 2 Wis. 507. ^ Swan «. Gray, 44 Miss. 393. ^ Attorney General v. Lum, mpra. ' Goodwin v. Glazer, 10 Cal. 833 ; " People v. Loucks, 28 Cal. 68. Fulton «. Hanna, 40 Cal. 278. ' Ex parte Carnocban, Charlt. 316. * People V. Loucks, 28 Cal. 68 ; At- ' People ii. Gale, 23 Barb. 503. OHAP. II.] TO PUBLIC OFFICEES. 69 of an inferior court to make out and transmit to the supreme court a transcript of the record in a cause detei-mined in the court below, where the plaintiff has sued out a writ of error, in forma pcmperis, in the higher tribunal, i But in all cases where the writ is sought to compel a clerk to issue an execu- tion, it should be shown that application for relief was first made to the court in which the judgment was rendered, and that such court has refused to act.^ And the writ will not go commanding a clerk to issue an order for a sale under a judg- ment, after the expiration of the statutory period of limita- tion, beyond which a judgment becomes dormant until revived by due process of law, since all proceedings under such judgment are void until it has been revived.^ § 83. Officers entrusted with the recording of deeds are treated as ministerial officers within the meaning of the rule, and properly subject to the writ.* Thus, mandamus lies to a register of deeds to compel him to record a deed left with him for that purpose,^ or to enter upon the records satisfaction of a mortgage. ' So the writ will go commanding a recorder of deeds to permit access to his books and records by a person properly entitled thereto.'' So, too, the register of a state land office may be required by mandamus to receive and regis- ter a plat and certificate of the survey of lands.* And where, by an act of legislature, a portion of one county is annexed to another, the register of deeds of the latter county is entitled to the aid of a mandamus, to compel the same officer in the former county to permit him to transcribe the records of his county, in as far as they affect real estate in the portion thus annexed. ^ § 84. The writ will go to the commissioner of a state land office requiring him to issue patents for certain swamp lands appropriated to a county by an act of legislature for the con- ' KodgersD.Alexauder, 35 Tex. 116. parte Goodell, 14 Johns. Rep. 325. « Compton V. Airial, 9 La. An. 496. « People v. Miner, 37 Barb. 466. = State «. McArthur, 5 Kan. 380. ' Silver v. The People, 45 111. 235. * Strong's case, Kirby, 845 ; Peo- ^ Simpson o. Register of Land pie D. Miner, 37 Barb. 466; Silver v. Office, Ky. Dec. (2nd edition), 317. The People, 45 111. 325. » State «. Meadows, 1 Kan. 90. ' Strong's case, Kirby, 845 ; Ex 70 MAirDAMTJS. [PABT I. struction of a public road, the duty of the ofScer being treated as a ministerial one. i And a state land agent, as to duties in passing upon conflicting claims to lands, which are ministerial in their character, may be controlled by mandamus, although • in proceedings for the writ in such case, the court will not per- mit the rights of third parties to be affected, any farther than they are necessarily and incidentally aifected in determining the duties of the officer. ^ § 85. Where an officer has levied upon property in satis- faction of unpaid taxes, which is claimed as exempt from levy under the exemption laws of the state, and the owner has given bond and security for the forthcoming of the property, the writ may be granted requiring the officer to deliver up the property, this being his plain, legal duty, as to which he is vested with no discretion, and there being no adequate remedy in damages, an action of trespass against the officer not afflarding specific relief by the return of the projierty. -^ § 86. Again, it has been held, in conformity with the gen- eral rule allowing mandamus to compel the performance of ministerial duties, that where a banking association has com- plied with all the requirements of the law necessary to entitle it to receive from the state auditor bank notes for circulation, the writ will be granted to require the auditor to comply with his duty by furnishing the notes.* And where it is made by law the imperative duty of a state treasurer to issue bonds of the state to a railway, upon completion of a .certain portion of its road, this duty may be enforced by mandamus upon the application of the company.^ § 87. The duty of an assessor of taxes to assess lands liable to taxation, is regarded as a ministerial duty, for which man- damus is the proper remedy.' And where the laws of the state give the right to a purchaser of tax-sale certificates for lands bid off by counties at tax sales, to have such certificates ' People II. Commissioner of State ^ Citizen's Banl^ of Steubenville Land Office, 23 Mioli. 270. v. Wright, 6 Ohio St. 318. ^ Hempstead «. Underhill's Heirs, ' North "Western N. C. R. Co. ?>, 20 Arli. 337. Jenkins, 65 N. C. 173. = Mitchell D. Hay, 37 Geo. 581. « People v. Shearer, 30 (Jal. 645. CHAP. II.J TO PUBLIC OPMOEES. 71 assigned to Mm, and it is the duty of tte county treasurer to make such assignment, mandamus lies for a refusal to perform this duty.i § 88. Where the power of granting licenses is conferred upon a particular officer, as an official duty, and he is required by law to grant certain licenses to persons tendering sufficient surety and paying certain fees, his only discretion in the mat- ter being as to the sufficiency of the surety, the writ will go commanding him to grant a license on sufficient surety being given and the fees being paid.^ § 89. Where a duty is ijiposed by law upon certain officers of levying and collecting certain money and paying it over to others, while it would seem to be incompetent to com- mand such officers speciJically by mandamus to bring an action for the money, the writ may go requiring and directing them to take the necessary legal measures for recovering payment.'' § 90. A commissioner for the selection of jurors under the laws of the state, being regarded as a ministerial and not a judicial officer, may be compelled by the writ to strike from a jury list the name of a person who is not liable to jury duty, the officer being regarded as devoid of all discretion in the matter.* § 91. The duties of public officers entrusted with the let- ting of contracts for public works, are deserving of special notice in this connection, particularly with reference to that class of contracts which are required by the constitution or laws of the state to be let to the lowest bidder. In many of the states it is provided, either in the constitution, or by express legislation, that certain contracts for services to be rendered the public, such as public printing, the erection of public buildings, and other kindred works of public improve- ment, shall be let to the lowest responsible bidder giving adequate surety, the details of the advertising, awarding of contracts, amount of surety required, and other matters of like nature being generally regulated by expre,^,. legislation. With ' State V. Magill, 4 Kan. 415. ' Queen d. Southampton, 1 Best & ' People ». Perry, 13 Barb. 306. Smith, 5. " People V. Taylor, 45 Barb. 129. 72 MANDAMUS. [part I. reference to this class of contracts and the duties of the ofiBcers entrusted with awarding them, the doctrine has been broadly asserted in Ohio, that where the bidder for the work has com- plied with all the requirements of the law, and his proposal is for the lowest price and is in conformity with law, he is entitled to the contract, and it is the imperative duty of the officers to award it accordingly, the duty being of a minis- terial nature and hence subject to coercion by mandamus, even though the contract may have already been awarded to anothei bidder, i But even in Ohio the decisions are far from harmo- nious, and the rule which they have attempted to establish has been so hedged about by limitations and conditions as to be of but little force. Thus, it has been held that the writ would not lie in behalf of the lowest bidder for public printing, to compel the commissioners to award him the contract for the printing, which had already been awarded by mistake to a higher bidder, where the party aggrieved had been guilty of a long and unexplained delay in seeking relief, and where he failed to show how much lower his bid was than that of the person receiving the contract. ^ Nor will the jurisdiction be exercised in favor of one claiming to be the lowest bidder, who does not show a clear, legal right on his own part, and a plain dereliction of duty on the part of the officers.^ And where the law requires competing bidders for contracts for works of public improvements to give a good and sufBcient bond, to the acceptance of the officers or commissioners entrusted with let- ting the contracts, and in the exercise of their discretionary powers such officers have rejected the bond, mandamus will not go to compel them to award the contract to the bidder whose bond they have rejected.* § 92. The better doctrine, however, as to all cases of this nature, and one which has the support of an almost uniform ' Farman v. Commissioners of ^ State v. Commissioners of Print- Darke Co. 21 Ohio St. 311. And the ing, 18 Ohio St. 386. same doctrine has been contended ' State «. Commissioners of Ham- for in New York, where no award ilton Co. 20 Ohio St. 425. had yet been made of the contract. * Borens.Commissioners of Darke See People «j. Contracting Board, 46 Co. 21 Ohio St. 311. Barb. 354. CHAP. II,] TO PTTBLIO OFnCEKS. 73 current of authority, is that the duties of officers entrusted with the letting of contracts for works of public improve- ment to the lowest bidder, are not duties of a strictly minis- terial nature, but involve the exercise of such a degree of official discretion as to place them beyond control of the courts by mandamus, i And the true theory of all statutes requiring the letting of such contracts to the lowest bidder, is that they are designed for the benefit and protection of the public, rather than for that of the bidders, and that they confer no absolute right upon a bidder to enforce the letting of the contract by mandamus, after it has already been awarded to another. ^ In all such cases, the spirit rather than ' State V. Board of Education of Fond du Lac, 24 "Wis. 683 ; People V. The Contracting Board, 37 K. Y. 378; Same v. Same, 33 N. T. 382; People ■B. Croton Aqueduct Board, 36 Barb. 340 ; Same v. Same, 49 Barb- 259; People v. Fay, 3 Lansing, 398; Free Press Association i). Nichols, 45 Vt. 7. ^ Slate v. Board of Education of Fond du Lac, 34 Wis. 683. The principles on which relief by man- damus is denied in this class of cases are very clearly stated in the opinion of the court in this case by Painb, J., as follows: "This was an application by the relators for a writ of mandamus, to compel the board of education of Fond du Lac to let to them a contract for the building of a school house in that city. The charter required the work to be let by contract ' to the lowest responsible bidder.' And it appears from the petition that the relators were the lowest bidders, and it must perhaps be assumed, on the papers on which the court below acted, that they were responsible bidders. It also appears from the peti- tion, that the contract was in fact let to other parties, whose bid was higher. It is claimed on behalf of the board, that they had a discretion in determining what bidders were responsible, which the courts ought not to control. But, without decid- ing upon this point, we think the application was properly denied, for the reason that where proposals are made and bids put in, in the usual manner, in letting contracts for public works, the lowest bidder has no such fixed, absolute right, that he is entitled to a mandamus to compel the letting of the con- tract to him, after his bid has been in fact rejected, and the contract awarded to another. The statutory provision requiring the contract in such cases to be let to the lowest bidder is designed for the benefit and protection of the public, and not of the bidders. And whatever remedy the public may have, the lowest bidder, whose bid has been rejected, has no absolute right to a writ compelling the execution of a contract with him, after one has in fact been let to another. The writ of mandamus being a discretionary writ, the fact that the contract has 74 MAWDAMTJS. [PAET I. the strict letter of the law requiring the work to be let to the lowest bidder should be kept in view.i And where the right of the officers to enter into the contract is itself somewhat doubtful, mandamus will not lie.^ l^or does the mere issuing ' of proposals by officers entrusted with letting contracts, invit- ing bids for the performance of the work, without binding themselves to award the contract to the lowest bidder, create such an obligation on the part of the officers as to entitle the lowest bidder to the aid of a mandamus to obtain the con- tract.^ Especially is it ground for refusing the writ, in such a case, that the officers show that they are without the neces- sary appropriation to meet the expenditure required, and that they have materially changed the design and character of the work, so that the public interests require that it should be again advertised and the contracts let under proposals framed in accordance with such alterations.* § 93. It is important also to observe, in connection with the doctrine under discussion, that where public officers are entrusted by law with the duty of awarding contracts for work or services to be rendered the state, and are required by law to let the contract, after competition, to the person whose offer shall be most advantageous to the state, their authority in the matter is exhausted when they have made the award. They can not, therefore, be compelled by mandamus to examine other proposals and to enter into another contract for the same services, after they have already passed upon the miatter and awarded the contract.'' § 9i. The authorities referred to in the notes to the pre- ceding sections, leave no room for doubt as to the settled rule that the lowest bidder acquires no such rights by making his bid as Jio entitle him to the iprit of mandamus, before the con- actually been awarded to another is ' People v. Fay, 3 Lansing, 398. sufficient to induce the court to de- ' Id. cline to interfere to further compli- ' People v. Croton Aqueduct cate the matter, even though they Board, 49 Barb. 359. might otherwise have done so. The * Id. People V. Contracting Board, 37 N. ° Free Press Association v. Nich- Y. 378. See also People v. Croton ols, 45 Vt. 7. Aqueduct Board, 49 Barb. 359." OHAP. II.] TO PUBLIC OFJFICEBS. 75 tract has actually been awarded him.^ The powers conferred upon the boards or officers authorized to contract with the low- est bidder, necessarily involving the exercise of discretion, the general principle denying relief by mandamus to control the discretionary powers of public officers applies, and the courts refuse to interfere. ^ Upon similar principles the writ will be ' See cases cited supra, and Peo- ple 1). Croton Aqueduct Board, 26 Barb. 240. ' People V. The Contracting Board, 27 N. Y. 378. Mr. Justice Emott, delivering tlie opinion, says : " Tlie constitution of this state (article 7, g 3,) as amended in 1854, declares that ' all contracts for work or mate- rials on any canal shall be made with the person who shall oflfer to do or provide the same at the lowest price, with adequate security for their performance.' The act of 1857 (vol. 1, p. 214,) provides that the contracting board ' shall have power, and it shall be their duty to let by contract, under such regulations as said board shall prescribe, to the lowest bidder or bidders, who will give adequate security for the per- formance of the contract,' the repairs of any completed section of the canal. Under this law, the con- tracting board advertised for propo- sals to keep the Cayuga and Seneca canal in repair for four years and a half. This notice indicated the form and character of the security, which the board would consider adequate, that is, it stated that every proposal must be accompanied by a certificate of deposit, in some bank in good credit, that four thousand dollars in cash had been deposited therein to the credit of the auditor, which would be retained as security for the performance of the contract. The relator made a proposal which was somewhat lower in price tlian that of any other person, but it was not accepted. A contract was made with one Case, who seems to have been the next highest bidder. The relator delivered with his proposal a certificate that he had deposited in the Salt Springs Bank of Syra- cuse four thousand dollars, payable to the order of N. S. Benton, audi- tor, but the certificate did not state in so many words that he had depos- ited such amount in cash. Case, whose bid was aoceftted, delivered a similar certificate, containing, how- ever, the words ' in cash.' It is to be inferred, although it is not dis- tinctly stated, that this difference in the form or phraseology of the certificate was the reason assigned for rejecting the relator's bid, and accepting a higher one. I confess I should be unable to justify such a decision, and I can hardly suppose that it was the true and only ground of the action of the board. Yet I think the supreme court ought not to have compelled the board, by mandamus, to reverse their action, or to make a contract with the rela- tor, after they had already made another contract with another per- son. The powers conferred upon the board necessarily involved and implied an exercise of discretion, although it seems exceedingly clear what decision their duty required them to make in this case. But they are to determine who is the 76 MANDAMUS. [PAKT I. refused where it is souglit to compel certain state officers to approve of a contract awarded the relator for the construction of public works of the state, i Where, however, the relator has been awarded the contract for printing the laws of a state and the contract has been actually entered into, for the faithful performance of which he has given the required bonds, he may lowest bidder, and what is adequate security ; or if the amount and char- acter of the security required is fixed by general regulation, then the contracting board are to decide whether the security offered in any given case conforms to the regula- tions. The principle is well settled, that whenever the act requires the exercise of discretion, this remedy will not lie. There must be a clear legal right, not merely to a decision in respect to the thing sought, but to the thing itself (People ex rel. Lynch v. Mayor of New York, 25 Wend. 680, 686 ; 19 Johns. 259 ; Ree- side V. "Walker, 11 How. U. S. 272.) The right in the case before us seems exceedingly plain, but it is after all only a right to a correct decision. The relator has no con- tract, no right to any specific act free from all discretion in the con- tracting board. If we may interfere here, we may do so whenever the contracting board decides incor- rectly as to the respective amounts of proposals, or the character of securities. If the case were clearer to my mind than it is, in favor of the jurisdiction to grant a man- damus, I should still feel bound to withhold it, and that, although the relator should have no other remedy, which I by no means admit. The writ of mandamus is, to some extent at least, in the discretion of the court to grant or refuse ; especially where, as in this case, no property of the relator has been taken or affected, and his claims rest altogether upon the interests of the state to have its work done by the lowest bidder, and not upon a legal right on his part. (People ». Canal Board, 13 Barb. 450, and cases cited.) The only legal right of the relator in such a case, if he could have any, would be to damages for refusing him the con- tract. But it appears in this case that the contracting board have made a contract with another per- son, one Case, already mentioned, and that he is engaged in the work. This individual would certainly be entitled to compensation for his work ; and the only result of order- ing a second contract for the same work, would be to subject the state to the payment of double compensa- tion." And in a very recent case, it has been held that the writ will not lie to compel municipal officers to approve of the security tendered for the faithful performance by a bidder of his proposed contract for public work, whereby an expendi- ture will be required larger than is necessary, and larger than would be incurred by awarding the con- tract to a lower bidder, who has substantially complied with the law. People V. G-reen, N. Y. Supreme Court, Special Term, 6 Chicago Le- gal News, 208. ■ People ■B. The Canal Board, 18 Barb. 432. CHAP. 11.] TO PUBLIC OrFICERS. - 77 by mandamus compel the secretary of state to fumisli him with copies of the public laws for printing, notwithstanding the printing has been let to another under a subsequent law. In such a case the relator's rights are regarded as contract rights, and in as far as the subsequent law impairs their obli- gation, it is invalid and constitutes no bar to relief by man- damus. ^ § 95. Mandamus will not lie from a district court of the United States to the postmaster of a city, to compel him to publish the list of letters uncalled for in the newspaper having the largest circulation, as required by law. The granting of the writ for such a purpose would be the exercise of an original jurisdiction, and the federal courts have no power to interfere by mandamus, except when the writ is necessary to the proper exercise of a jurisdiction previously acquired. ^ § 96. While the discussion of the law of mandamus to min- isterial officers thus far, has shown the jurisdiction to be well established to enforce the performance of public duties plainly incumbent by law upon such officers, it is nevertheless limited to cases where the officer is legally and fully empowered to perform the mandate of the court. And the writ will not go to command the performance of an official act or duty in advance of the time when it is actually required by law, since the courts will not presume that public officers will refuse the performance of their diities at the proper time.* Nor will the writ issue in any event to compel a ministerial officer- to per- form a duty required of him by a statute which is decided to be void.* J^or will mandamus lie to a ministerial officer to enforce obedience to an order of an inferior court, especially where a remedy by indictment exists against the officer for disobedience. 5 § 97. It sometimes happens that officers whose general functions are of a ministerial nature, are entrusted by law with ' state V. Barker, 4 Kan. 379. And iana. see Same v. Same, lb. 435. ' City of Zanesville v. Auditor, 5 » United States v. Smallwood, 1 Ohio St. 589. Chicago Legal News, 331, decided * State v. Tappan, 39 Wis. 664. in U. S. District Court for Louis- ' J?;ing v. Bristow, T. R 168. 78 MANDAMUS. [PAET I. the performance of duties of a quasi-judicial character, and requiring of the officer the exercise of his best judgment and discretion. In such cases the courts are guided by the nature of the duty, rather than the functions of the officer at whose hands its performance is required, and in conformity with the general principle denying the aid of mandamus to control the exercise of official judgment and discretion, they will refuse to interfere to command the performance of the duty. For example, where a board of county commissioners are required by law to appoint suitable persons as collectors of taxes for the different towns and wards of their county, the duty of making such appointments is treated, not as a ministerial duty, but as one which calls for the exercise of a discretion closely allied to judicial, and with the exercise of which the courts will not interfere by mandamus. ' § 98. It only remains to notice those cases where, although the duty sought to be coerced is purely of a ministerial char- acter, unattended with the exercise of any official discretion, relief by mandamus is withheld on account of some defect or want of jurisdiction in the court whose aid is sought. In this country such cases are not infrequent, owing to our peculiai system of state and federal courts. As regards the power of the circuit courts of the United States by the writ of man- damus, under the judiciary act of 1789, it is held that the juris- diction is confined exclnsively to cases where it is necessary for the exercise of their general jurisdiction and powers. ^ In other words, circuit courts are authorized to use the writ only as ancillary to a jurisdiction already acquired, and it can not be used to confer or create a jurisdiction which they do not otherwise possess.^ These courts, therefore, under the act of 1789, can not by mandamus compel the performance of minis- terial duties by the officers of the United States, where such duties are not in aid of the exercise of their existing jurisdic- tion. Hence they will not grant the writ to compel the regis- ter of a land office to issue a certificate of purchase for lands, ' Commonwealth «. Perkins, 1 Pa. Bath County v. Amy, 13 Wal. 345 ; St. 43. Graham «. Korton, 15 Wal. 437. ' Mclntirei). Wood, 7 Cranch, 504; " Bath County ». Amy, supra. CHAP. II.] TO PUBLIC OFPICEES. 79 although the duty is purely ministerial.! ISTor will the state courts he allowed by mandamus to control the action of min- isterial officers of the United States, and the writ will not lie from a state court to compel the register of a United States land office to issue a certificate of purchase for lands, since such an office, being created by the government of the United States, can only be controlled by the power which created it.^ ' Mclntire v. "Wood, 7 Cranch, 504. = McClung v. Silliman, 6 Wheat. 598. "Whether," says .JoHirsoN, J., pronouncing the opinion, "a state court generally possesses the power to issue v^rits of mandamus, or what modifications of its powers may be imposed on it, by the laws which constitute it, it Is correctly argued, that this court can not be called upon to decide. But when the exer- cise of that power is extended to officers commissioned by the United States, it is immaterial under what law that authority be asserted, the controlling power of this court may be asserted on the subject, under the description of an exemption claimed by the officer over whom it is exer- cised. It is not easy to conceive on what legal ground a state tribunal can, in any instance, exercise the power of issuing a mandamus to the register of a land office. The United States have not thought proper to delegate that power to their own courts. But when in the cases of Marbury v. Madison, and that of Mclntire b. Wood, this court decided against the exercise of that power, the idea never presented itself to any one, that it was not within the scope of the judicial powers of the United States, although not vested by law in the courts of the general government. And no one will seriously contend, it is presumed, that it is among the reserved powers of the states, be- cause not communicated by law to the courts of the United States? There is but one shadow of a ground on which such a power can be con- tended for, which is, the general rights of legislation which the states possess over the soil within their re- spective territories ? It is not now necessary to consider that power, as to the soil reserved to the United States, in the states respectively. The question in this case is, as to the pow- er of the state courts, over the officers of the general government, employed in disposing of that land, under the laws passed for that purpose. And here it is obvious, that he is to be regarded either as an officer of that government, or as its private agent. In the one capacity or the other, his conduct can only be controlled by the power that created him ; since, whatever doubts have from time to time been suggested, as to the su- premacy of the United States, in its legislative, judicial, or executive powers, no one has ever contested its supreme right to dispose of its own property in its own way. And when we find it withholding from its own courts, the exercise of this controlling power over its minis- terial officers, employed in the ap- propriation of its lands, the infer- ence clearly is, that all violations of 80 MANDAMtrS. [part I. § 99. It is not, however, to be inferred from the authorities cited in the preceding section, that the power of issuing the writ of mandamus to an officer of the United States, command- ing him to perform a duty required by law, is beyond the scope of the judicial power of the government under the con- stitution. On the contrary, the cases upon this subject, so far from denying the judicial power of the United States over its own officers, expressly recognize its existence, while they deny that the whole of that power has been confided by law to the circuit courts. In other words, the power is regarded as a dormant one, not yet called into action or vested in the courts. ^ YI. Auditing and Fiscal Officees. § 100. Outline of the jurisdiction. 101. Ministerial duties of auditing officers subject to mandamus. 103. Discretionary powers not subject to the writ. 103. Salaiy of disputed office. 104. Mandamus lies to compel drawing of warrant for claim allowed. 105. Lies to compel drawing of warrant for salary. 106. Material furnished under contract; illegal contract. 107. Affixing official seal to warrant; successor in office liable. 108. Incumbent de facto entitled to mandamus for salary. 109. Writ refused for auditing accounts of public officer. 110. Granted to compel certifying of account ; payment to wrong person. 111. Salary or claim must be authorized by law. 113. Writ granted to compel payment of warrants drawn upon fiscal officers. 113. Granted for payment of warrant for salary due ; incumbent de facto entitled to the remedy. 114. Rule where warrant is payable out of particular fund. private right, resulting from the acts traordinary and unprecedented of such officers, should be the sub- mode of trying such questions on a ject of actions for damages, or to motion for a mandamus." recover the specific property (ac- ' See Mclntire «. Wood, 7 Cranch, cording to circumstances), in courts 504; McCluny ». Silliman, 2 Wlieat. of competent jurisdiction. That is, 369; McClung b. Silliman, 6 Wheat, that parties should be referred to 598; Kendall e. The United States, the ordinary mode of obtaining jus- 13 Pet. 524; Marbury v. Madison, 1 tice, instead of resorting to the ex- Cranch, 49. OHAP. II.J TO PUBLIC OFPICEES. 81 115. Discretion of fiscal officer not controlled by mandamus. 116. Limitations upon the general rule. 117. Officer must have funds in possession. § 100. The duties of public officers entrusted with the auditing and payment of accounts for services rendered the public, salaries of officers, and other obligations of a kindred nature, may be appropriately considered in this connection, and form an important feature of the general jurisdiction of the courts by mandamus over public officers. We have elsevsrhere considered the principles governing the interference by this writ, to compel the auditing and payment of claims and demands against municipal corporations, ^ and we have here to consider the use of the writ as applied to other than muni- cipal officers, and more especially to the various state officers to whom^ is entrusted the duty of auditing and paying demands against the state. § 101. In as far as the duties of the class of officers under consideration are ministerial in their nature, and imconnected with the exercise of any especial discretion or judgment, they are properly subject to the control of the courts. And where the nature and amount of the services rendered the state are definitely fixed and ascertained, and the compensation therefor is fixed by law, the duty of auditing and allowing the account for such services becomes a mere ministerial act, the perform- ance of which may be coerced by mandamus. Thus, the writ will go to the comptroller of public accounts of a state, requir- ing him to audit the account of a member of the state legisla- ture for his services rendered in that capacity, since, the nature of the services as well as their amount being definitely fixed, and the compensation being prescribed by law, the comp- troller is vested with no official discretion in the matter, and may be compelled by mandamus to perform his plain duty.^ ISTor is it regarded as a sufficient objection to granting the writ in such a case, that it affiards an indirect method of suing the state.* And such an officer may be required by the writ ' See Chap.V, Subdivision II, post People «. Brooks, 16 Cal. 11. ^ Fowler v. Peirce, 3 Cal. 165 ; " Fowler i). Peirce, swpra. 6 82 MANDAMUS. [PART I. to correct a manifest erroj in his accounts, whicli has arisen from his erroneously pursuing a law which has been subse- quently declared void.i In general, however, since a sover- eign state can not be sued in its own courts without its own consent, the remedy by mandamus is not to be extended, so as to become in effect a process against the state for testablishing demands of an unliquidated nature, which properly fall within the cognizance of the legislature. ^ § 102. "Whiere, however, auditing oflBcers entrusted by law with the duty of passing upon and determining the validity of claims against a state, are vested , with powers of a discre- tionary natuite as to the performance of their duties, a different rule prevails. In such cases, the fundamental principle deny- ing relief by mandamus to control the exercise of official dis- cretion applies, and the officers having exercised their judgment and decided adversely to a claimant, mandamus will not lie to control their decision, or to compel them to audit and allow a rejected claim. The remedy, if any, for such a grievance, must be sought at the hands of the legislature, and not of the courts.^ And where a state comptroller is vested with certain discretionary powers in the adjusting and settlement of demands against the state, he can not be compelled to issue his warrant for the payment of a particular sum.* § 103. Where there is an actual incumbent of an office, holding his position and exercising its functions under color of right, mandamus will not lie to the state auditor to compel him to audit the claim of another person for the salary of the office. In such case, it is a sufficient objection to relief by mandamus that a conflict of title is presented, which can only be determined by proceedings in quo warranto, and the auditor himself has no power to inquire into the regularity of the commission issued for the office, nor to determine the disputed title." ' People V. Bell, 4 Cal. 177. ■• Green «. Purnell, 12 Md. 329. ' Swann i>. Buck, 40 Miss. 291. » State a. Moseley, 34 Mo. 375 ; 'Auditorial Board ■!). Aries, 15 Winston ■». Moseley, 35 Mo. 146; Tex. 72 ; Auditorial Board «. Hen- State v. Thompson, 36 Mo. 70. And drick, 20 Tex. 60; Towle v. The see State «. Draper, 48 Mo. 213; State, 3 Fla. 202. State v. Clark, 52 Mo. 508. CHAP. II.] TO PUBLIC OFFICERS. 83 § 104. The drawing of a warrant for the payment of a demand or claim against a state, which has been duly audited and allowed by the proper authority, is regarded as a duty of a purely ministerial nature and hence properly falling within the scope of mandamus. And wherever the demand has been definitely ascertained as prescribed by law, and the duty is plainly incumbent by law upon a particular officer of drawing his warrant upon the treasury for the amount due, a refusal to perform this duty will warrant the interposition of the courts by mandamus.' Thus, the writ will go to the auditor of pub- lic accounts of a state, to draw his warrant for a particular amount appropriated by act of legislature for a particular pur- pose, since his duty in the premises involves the exercise of no discretion and is merely ministerial in its nature.^ JtTor is the jurisdiction by mandamus, in this class of cases, ousted by the fact that the claimant has by law the privilege of suing the state, if dissatisfied with the decision of the auditing offi- cer, since this privilege, or submission on the part of the state to be sued, does not take away the remedy by mandamus as to acts of a purely ministerial nature. ^ § 105. Frequent applications of the rule as above stated occur in cases of salaries due to public officers, and in cases of this nature, where the amount of the salary is definitely fixed and appropriated by law, the drawing of the warrant upon the public treasurer is unattended with the exercise of any official discretion, and may very properly be coerced by mandamus.* And in proceedings for this purpose, the courts will not ordinarily inquire into the eligibility of the. officer to the office whose salary he seeks to draw.^ Though if there be no other incumbent or claimant of the office, it would seem to be ' Danley v. "Whiteley, 14 Ark. 687 ; ' State v. Bordelon, supra. State V. Bordelon, 6 La. An. 68 ; Tur- » Danley v. Whiteley, 14 Ark. 687. ner v. Melony, 13 Oal. 621 ; Bryan v. * State ®. Gamble, 13 Pla. 9 ; Bryan Cattell, 15 Iowa, 538 ; State «. Gam- v. Cattell, 15 Iowa, 538. And see ble, 13 Fla. 9 ; State v. Secretary of Turner v. Melony, 13 Cal. 621 ; Nich- State, 33 Mo. 293 ; People v. Smith, ols d. The Comptroller, 4 Stew. & 43 111. 319 ; People v. Secretary of Port. 154. State, 58 111. 90; Nichols v. The » Turner ®. Melony, 13 Cal. 631. Comptroller, 4 Stew. & Port. 154. 84 MANDAMUS. [PART I. proper for the court to determine whether the appointment under which relator claims was void J § 106. Where it is the plain and unmistakable duty of a state auditor to draw his warrant upon the treasurer of the state, for the payment of money due for materials furnished the state under contract with the proper officers, and it is also the duty of the treasurer to countersign such warrant, and deliver it to the person properly entitled thereto, this duty may be coerced by mandamus, regardless of whether there is money in the treasury out of which the warrant may be paid. Such a case is plainly distinguished from that of mandamus to compel the actual payment of the money, where it is conceded to be a sufficient objection to the interference, that there are no funds in the treasury out of which the payment can be made.^ And the writ will lie, in the case under consideration, as to materials furnished to and received by the state under the con- tract, even though the law was not complied with in awarding the contract.* Where, however, there has been a departure from the requirements of the statute in letting the contract, and the legislature of the state has, by resolution, refused to go on with the contract in the future, mandamus will not be granted to compel the secretary of state to receive materials yet undelivered under the contract. In such case, while the state is regarded as having ratified the contract, as to materials already received and accepted thereunder, it has the undoubted right to refuse to proceed further under the contract.* § 107. Mandamus is also the appropriate remedy to com- pel the performance of a purely ministerial act, necessary to the legality of the warrant for the payment of money due from the public, such as affixing an official seal to the warrant. And where the duty of affixing the seal is imposed upon the officer by law, there being no other adequate remedy, man- damus lies for its performance.^ In such case, the jurisdiction may be exercised against the successor of the officer whose duty it originally was to affix the seal, the duty being regarded ' State V. Gamble, 13 Fla. 9. = Id. « People V. Secretary of State, 58 ' Id. 111. 90. ' Prescott v. Gonser, 34 Iowa, 175. CHAP. II.J TO PUBLIC OFFICEES. 85 as a continuing one, incumbent upon the oificer in his official' capacity and not as an individual, i § 108. Where disputed questions arise as to the title to a public office, the incumbent de facto is regarded as vested by his commission with prima facie evidence of his right, and as entitled to the emoluments of the office until the state by a proper proceeding, has revoked the authority with which it had previously invested him. Mandamus, therefore, lies in such case to a state auditor, to compel him to draw his warrant upon the treasurer for payment of the salary due the incumbent de facto, notwithstanding the pendency of proceedings in quo warranto, instituted by the attorney general of the state, to test the title to the office.^ § 109. In England, mandamus does not lie in behalf of a public officer, entrusted with the custody and disbursement of public funds, to compel the commissioners of the treasury to direct an examination and auditing of his accounts with the government. The relief is refused in such case on the ground that, while the officer may have a moral right to insist upon the auditing of his accounts, yet he has no such express legal right as to lay the foundation for a mandamus, in the absence of any statute making it the duty of the commissioners to audit his accounts. ^ § 110. In conformity with the principles already established, mandamus will lie to a secretary of state, requiring him to certify the account of the register of state lands for services rendered, where this duty is incumbent by law upon the sec- retary, and he is vested with no supervisory control over the register and no discretion as to the performance of the latter's duties.* And it is to be observed that where the custodian of public funds pays them to the wrong person, simulating the real claimant, and negligently or carelessly fails to assure him- self of the identity of the payee with the real claimant, the state is still liable for the amount really due, and mandamus 1 Id. ' Ex parte Edmunds, 25 L. T. R. 2 State B. Clark, 53 Mo. 508. See N. S. 705. also State v. Draper, 48 Mo. 313; * State v. Secretary of State, 33 Same ». Same, 50 Mo. 353. Mo. 393. 86 MANDAMUS. [PAET I. will lie to compel the auditor to draw his warrant for the amount, and the treasurer to make payment of the same. Thus, the writ will go to a state auditor, to draw his warrant for the amount of interest due on state bonds to a holder thereof, and to the treasurer to pay the same, notwithstanding a previous jjayment to a person not entitled thereto. ^ § 111. It is to be borne in mind that the jurisdiction by mandamus in this class of cases is dependent upon whether the demand or claim is one definitely fixed or authorized by law. And a state comptroller of public accounts will not be directed by the writ to draw his warrant upon the state treas- urer, in payment of a salary which is not specifically author- ized by law.^ Nor will the writ issue to a state auditor, to compel him to draw his warrant upon the treasury, in payment of a claim where no evidence was shown as to the value of the services rendered, and no law authorizing the payment, espec- ially where the legislature of the state has already passed upon the claim and allowed a portion thereof, which has been paid.^ § 112. Upon principles similar to those governing the courts in extending relief by mandamus to compel the drawing of warrants upon the public treasury, for demands definitely ascertained and legally due, will they interfere to compel pay- ment of such warrants by the custodian of the public funds on whom they are drawn. The act of payment in such cases, being a naked, ministerial act, involving no element of discre- tion, a refusal of the proper officer to make the payment in accordance with the warrant or order, drawn upon him by the proper authority, will justify the interference of the courts by ' People ». Smith, 43 111. 219. Mr. knows his duty, and wishes to per- Justice Bbbese, pronouncing the form it, pays money to one of whose opinion, says ; " The treasurer took identity he is not entirely satisfied, the risk of the identity of the payee, Should he pay to one simulating the and if, by his negligence in not real party, it will be no bar to a re- assuring himself of the identity, covery by the latter. Graves v. payment has been made to the American Exchange Bank, 17 N.Y. wrong person, the state remains lia- 205." ble to pay the interest to the real ' Chisholm o. McGehee, 41 Ala. party entitled to it. It is not usual 192. that a custodian of money, who ' Swann v. Work, 24 Miss. 439. CHAP. II.] TO PUBLIC OPPICEES. 87 mandamus. 1 Thus, the writ will go to a state treasurer com- manding him to make payment of warrants drawn upon him by the auditor of state, the warrants giving the persons hold- ing them a clear right to the amounts indicated, and there remaining only the ministerial act of payment.^ And in such case, the treasurer can not withhold payment on the ground that the amount claimed is not due according to his construc- tion of the law. 3 So where the court has decided that a spe- cific amount is due the relator from a particular fund, as a school fund, the commissioner in charge of that fund may be required to make the payment.* § 113. The payment of a salary due to a public officer aflbrds a good illustration of the general rule as here stated, the relator being plainly entitled to the amount fixed by law as compensation for his services. ^ And an ofiicer de facto, in possession of the oflBce and exercising its functions under color of right, is entitled to the aid of mandamus to compel pay- ment of his salary, notwithstanding there is a conflicting claimant to the office.* And upon such application the court will not investigate the actual legal title to the office.' § 114. Where a particular warrant upon the treasurer of a state, for the payment of money due from the state, is made payable out of a particular fund, upon application for man- damus against the treasurer to compel the payment of the war- rant, it should be shown that there was money in the hands of the treasurer at the time of presenting the warrant, applicable to its payment. And in such case it is not a sufficient com- pliance with the rule to allege that the money was in the hands of the treasurer when the warrant was drawn. ^ ' Hommerich d. Hunter, 14 La. ' Black v. Auditor of State, 36 An. 321 ; State ». Bor.delon, 6 La. Ark. 337. An. 68; ^!B parte Selma & Gulf R. « State B. Draper, 48 Mo. 313. And Co. 46 Ala. 433 ; State ». Draper, 48 see Same v. Same, 50 Mo. 353 ; State Mo. 313 ; Black «. Auditor of State, «. Clark, 53 Mo. 508. 36 Ark. 337. ' Id. And see State «. Moseley, « Ex 'parte, Selma & Gulf R. Co. 46 34 Mo. 375 ; Winston ». Moseley, 35 Ala. supra; Hommerich «. Hunter, Mo. 146 ; State «. Thompson, 36 supra. Mo. 70. ' Hommerich v. Hunter, supra. * Huff o. Kimball, 39 Ind. 411. * Hill is V. Byan, 4 G. Greene, 78. 88 MANDAMUS. [PAET I. § 115. "WTiile the duty of making payment of a demand definitely ascertained and legally due is, in itself, purely a ministerial act, and therefore, as we have just seen, a proper subject of control by mandamus, yet the rule is otherwise if the fiscal officer, entrusted with the duty of making payment, is also entrusted with powers of a discretionary nature in determining the propriety of the demands which he shall pay. In such case, the general principle forbidding the interference of the courts with the exercise of official discretion is allowed to prevail, and mandamus is refused. Thus, the writ will not lie against a state treasurer, commanding him to pay a demand against the state which he has refused, where it is made by law his duty to examine all claims against the public treasury, and where he is authorized to refuse payment of unjust or unrea- sonable claims, and where, in the exercise of these powers, he has passed upon and refused to allow the claim in question. ^ § 116. It is to be observed that the writ only issues to officers in custody of public funds, to compel the payment of claims or demands which have been specifically authorized, or for which money has been appropriated, in due course of law. And mere contract relations between the claimant and the state, as to the amount of compensation to be paid for services rendered by the former, do not constitute such an appropria- tion of the public funds in the hands of the public treasurer, as to lay the foxmdation for a mandamus to compel the payment. ^ Nor will the writ go to a state treasurer, commanding the pay- ment of a demand against the state, where it appears that the legislature has expressly forbidden such payment. ^ And it is important to observe, that the writ will not direct public officers or servants to make payment of demands against the public, in any other than the manner prescribed by law. For example, where the state has, by a resolution of the legislature, provided that the payment of certain bonds of the state shall be made in legal tender currency, while upon their face the obligations call for payment in gold and silver coin, man- damus will not lie to compel payment of the bonds in coin, ' Louisiana College v. State Treas- " Weston «. Dane, 51 Me. 461. nrer, 2 La. 394. « Bayne v. Jenkins, 66 N. C. 356. CHAP. II.J TO PUBLIC OFFICEES. 89 even thougli tlie court may be of opinion that the state has failed to meet its obligations and to comply with its contracts. ^ The remedy for such a grievance must be sought in the legis- lature, and not in the courts.^ § 117. It is always a complete objection to interfering by mandamus, that the granting of the writ would be nugatory, and in the case of fiscal officers against whom the writ is sought, to compel payment of a public indebtedness out of a public fund, it is sufficient to show that there are no funds in the hands of the officer appropriated to that piirpose, since the writ will not lie to compel the performance of an act which the officer is powerless to perform. ^ YII. ExEcuTTVi! Officers. § 118. Conflict of authority as to jurisdiction by mandamus over execu- tive officers. 119. Ttie writ granted to executive officers in some states. 130. The weight of authority opposed to the jurisdiction ; reasons there- for. 121. Writ not granted to compel governor to issue commission ; or to declare person elected. 133. Not granted to require performance of military duties by governor. 123. Not granted to compel governor to issue state bonds; or to deposit bill with secretary of state. 124. Writ does not lie from federal courts to governor of state. 125. Eefused against secretary of state to certify act of legislature. 126. Land commissioner required to issue bonds to railway. 127. Rule as to heads of executive departments and cabinet officers of United States. 128. Limitation upon the rule. 129. Rule as applied to secretary of the treasury. 130. Rule as to secretary of the navy concerning payment of naval pen- sions. 131. Rule as to commissioner of patents. 133. Patents for public lands. > State V. Hays, 50 Mo. 34. See also People v. Secretary of State, » Id. 58 111. 90; Huflf «. Kimball, 39 Ind. ' Hayne ■». Hood, 1 Rich. N. 8. 16. 411. And see Dodd v. Miller, 14 Ind. 433. 90 MANDATiUS. PART I. 133. Mandamus to sheriffs. 134. When granted to compel sheriff to make deed. § 118. The jurisdiction of the courts by mandamus over executive ofScers, including governors of states, heads of the executive departments of the general government, and others of a kindred nature, has given rise to questions of much diffi- culty, and not a little conflict of authority has resulted from the eiforts of the courts to apply the general principles of the law of mandamus to such cases. Especially is this true with reference to the control of the courts by mandamus over the official action of the governors of the various states, and upon no branch of the law of mandamus are the authorities more contradictory than upon this. And while, as to purely execu- tive or political fanctions devolving upon the chief executive officer of a state, and as to duties necessarily involving the exercise of official judgment and discretion, the doctrine may be regarded as uncontroverted that mandamus will not lie,' yet as to duties of a ministerial nature and involving no ele- ment of discretion, which have been imposed by law upon the governor of a state, the authorities are exceedingly conflicting and, indeed, utterly irreconcilable. Upon the one hand, it is contended, and with much show of reason, that as to duties of this character, the general principle allowing relief by man- damus against ministerial officers should apply, and the mere fact of ministerial duties having been required of an executive officer, should not deter the courts from the exercise of their jtirisdiction. Upon the other hand, it is held that under our structure of government, with its three distinct departments, executive, legislative, and judicial, each department being entirely independent of the other, neither branch can properly interfere with the duties of the other, and that as to the nature of the duties required of the executive department by law, and as to its obligation to perform those duties, it is entirely independ- ent of any control by the judiciary. While the former theory has the support of many respectable authorities, and is certainly ■ Miles V. Bradford, 32 Md. 170. 528 ; Tennessee & Coosa R. Co. v. And see State v. Chase, 5 Ohio St. Moore, 36 Ala. 871. CHAP. II.] TO PUBLIC OPPICEES. 91 in harmony with the general principles underlying the jurisdic- tion as applied to purely ministerial officers, the latter has the clear weight of authority in its favor, and may be regarded as the established doctrine upon this subject. The importance of the subject, however, merits a somewhat extended discussion, and it is proposed to consider both propositions somewhat in detail, together with the reasoning of the courts in support thereof. § 119. The courts of last resort in the states of Ohio, Ala- bama, California, Maryland and North Carolina, while conced- ing the complete independence of the governor of the state from judicial control, in the performance of his purely executive and political functions, have held that, as to ministerial duties incumbent by law upon the executive, and which might with equal propriety have been required at the hands of any other officer, the general principle prevails and mandamus will lie to compel the performance of such duties. Looking to the nature of the act to be performed, rather than to the general functions of the officer at whose hands it is required, and that act in no manner partaking of an executive or political character, and involving the exercise of no official discretion, the courts of these states have held that the executive character of the officer did not remove him from judicial control, and that a failure or neglect to perform a plain and imperative ministerial duty required of him by law, was sufficient foundation for interposing the extraordinary aid of a mandamus. ^ Thus, the ' State 11. Chase, 5 Ohio St. 528 ; and carry on the business of bank- Tennessee & Coosa R. Co. 11. Moore, ing. The section of the banking 36 Ala. 371 ; Cotten v. Ellis, 7 Jones, act relied upon in support of the 545 ; Magruder v. Swann, 25 Md. application, provided that, upon its 173 ; Middleton «. Low, 30 Cal. 596 ; being properly certified to the gov- Harpending v. Haight, 39 Cal. 189. ernor that the banking company State V. Chase, 5 Ohio St. 528, was had complied with the provisions an application for a mandamus, of the law and was entitled to com- upon the relation of a banking as- mence business, the governor should, sociation to compel the respondent, if satisfied that the law had in all as governor of Ohio, to issue his respects been complied with, issue proclamation, as required by stat- his proclamation, setting forth that ute, announcing that the company the company was authorized tncom- was duly authorized to commence mence and carry on the business of 92 MANDAMUS. [PAKT \vrit has been recognized as the proper remedy to compel the governor of a state to issue a proclamation, in compliance with a statute, declaring that a banking association, having corn- banking. Although the mandamus was refused, on other grounds, the court held that as to purely minis- terial acts devolving upon the exe- cutive of the state, he was amenable to the process of the courts by man- damus. Upon this point the court, Baktlby, C. J., say: "The consti- tutional provision declaring that ' the supreme executive power of this state shall be vested in the gov- ernor,' clothes the governor with important political powers, in the exercise of which he uses his own judgment or discretion, and in regard to which, his determinations are conclusive. But there is nothing in the nature of the chief executive ofSce of this state, which prevents the performance of some duties merely ministerial being enjoined on the governor. While the au- thority of the governor is supreme in the exercise of his political and executive functions, which depend on the exercise of his own judg- ment or discretion, the authority of the judiciary of the state is supreme in the determination of all legal questions involved in any matter judicially brought before it. Al- though the state can not be sued, there is nothing in the nature of the office of governor, which prevents the prosecution of a suit against the person engaged in discharge of its duties. This is fully sustained by the analogy of the doctrine of the Supreme Court of the United States, in the case of Marbury «. Madison, 1 Cranch Rep. 49. However, there- fore, the governor, in the exercise of the supreme executive power of the state, may, from the inherent nature of the authority in regard to many of his duties, have a discre- tion which places him beyond the control of the judicial power, yet in regard to a mere ministerial duty enjoined on him by statute, which might have been devolved on an- other officer of the state, and aflFect- ing any specific private right, he may be made amenable to the com- pulsory process of this court by mandamus. The official act of the governor in question, in regard to issuing the proclamation asked for, is a duty prescribed by statute, not necessarily connected with the supreme executive power of the state, ministerial in its nature, and a duty which might have been en- joined on some other officer. It is contended that tliis duty rests in the discretion of the governor, by virtue of the provision requiring that ' he shall, if he be satisfied that tlie law has, in all respects, been complied with, issue his proclamation,' etc. The facts connected with the or- ganization of the company, and the other essential preparations preli- minary to the commencement of the business of banking, are re- quired to be certified to the gover- nor; and on finding that the law has been complied with in these respects, the proclamation is re- quired. The duty is imperative on his being satisfied of a given state of facts. It is his duty to look into the evidence presented to him, and act on a given state of facts. He has no uncontrollable power of judgment as to either the law or the CHAP. II.] TO PUBLIC OFFICEES. 93 plied with the law in aU respects, was entitled to begin the business of banking.^ So mandamus has been granted to require a governor to draw his warrant upon the treasurer of the state for the payment of a salary due to a state officer. ^ So, too, the writ has been allowed commanding the governor of a state to sign and execute a patent for lands sold by the state, where the law regulating the sale of such lands had been complied with by the officers of the state and by the purchaser.^ And where by statute the governor is required to authenticate as laws all bills which have passed both houses of the legislature, the act of authentication has been treated merely as a ministerial act, partaking in no manner of an executive character, which the law might with equal propriety have required of any other officer, and hence a duty whose performance might be coerced by mandamus.* So the duty facts. On his finding the existence of the requisite fact, the law is peremptory in requiring the per- formance of the duty. True it is, if the evidence presented he not clear and satisfactory as to the compliance with the requirements of the law, but leaves ground for doubt, the act is not authorized. The duty en- joined, therefore, although subject to a condition, is ministerial in its nature." ' State V. Chase, 5 Ohio St. 528. ^ Gotten V. Ellis, 7 Jones, 545. » Middleton v. Low, 30 Cal. 596. * Harpending v. Haight, 39 Cal. 189. Mr. Justice Wallace, pro- nouncing the opinion of the court, says, p. 213 : * * * " And upon principle it would seem that, if the petitioner has a vested right by law to have the bill in question authen- ticated, the mere circumstance that the person whose duty it is to direct the act to be performed is an officer, even the chief oflBoer, of tlie execu- tive department, and as such, in the discharge of other and important duties, should not either impair the right or embarrass its assertion. The duty to direct the autlientica- tion imposed upon the governor by the statute, might have been en- joined upon any other executive officer, and in such case would it be pretended that its performance could not be enforced? It might have been made part of the official duty of the secretai-y of state, inde- pendently of any direction to him by the governor, to affix the appro- priate certificate to the bill ; and in that case, would it be any answer to say that he was an executive officer, and as such Invested with executive discretion and authority in refer- ence to certain other matters not involved in this question ? And if it be conceded that the governor, because he is chief of the executive department, enjoys for that reason an absolute immunity from all judi- cial process, even wlien his duty in the given instance is ministerial, and a citizen has a vested riglit to have it performed, may not the 94 MAWDAMTTS. [part I. of the chief executive of a state to issue commissions to the persons returned to him as elected to the various public offices in the state, has been held a mere ministerial duty, imposed upon the governor as preliminary to the qualification of the officers, which he is imperatively required to perform, in order that the difierent departments of the government may be kept in motion, and mandamus has therefore been granted to com- pel the issuing of a commission by the governor, i So, again, it has been held, still having regard to the nature of the act to be performed, rather than to the character of the officer, that where a statute imposed upon the governor of a state the duty of drawing his warrant upon the treasurer for the payment of certain funds to a railway company, upon its performance of certain conditions, the duty was of a ministerial character and properly subject to control by mandamus. ^ same exemption from judicial pro- cess be set up by other officers of the executive department? Would the attorney general, the controller, the treasurer, and the other great officers of state, by reason of their mere official ranli, be beyond the reach of the process of the law in all cases, and not be compelled to perform any official act, no matter how distinctly enjoined upon them ? And if the state officers of the ex- ecutive department are to be clothed with this immunity, it must be re- membered that the sheriifs, record- ers, etc., in the several county or- ganizations, are also members of the executive department, and upon what principle could one of them be compelled to perform his duty in any case ? It seems, to us that the assertion of such a doctrine would draw after it the most serious com- plication and confusion, both in public and private rights, and prac- tically disrupt the whole fabric of government." > Magruder «. Swann, 25 Md. 173. " Tennessee & Coosa K. Co. o. Moore, 36 Ala. 371. "By the con- stitution of this state," say the court. Walker, J., "the powers of gov- ernment are divided and distributed among three departments, the legis- lative, the executive, and the judi- cial. The governor, as the head of the second of these departments, is clothed with the ' supreme executive power of the state'; and in the dis- charge of those political functions attached to his office, which depend on the exercise of his own judg- ment or discretion, his determina- tions are conclusive. Any attempt on the part of the judiciary to con- trol or direct him in the perform- ance of executive duties, about which he has a discretion, and may exercise his own judgment, would be a manifest usurpation of power. But there is nothing in the nature of his office which can prevent the legislature from assigning to the governor the performance of some mere ministerial acts, in regard to which he is not clothed with any CHAP. II.J TO PUBLIC OFFICEES. 95 § 120. WLile it may be conceded that the doctrine of the eases referred to in the previous section, allowing mandamus to the chief executive officer of a state as to the performance of purely ministerial duties, has much to commend it in the very strong reasoning adduced by the different courts in its favor, yet the weight of authority is clearly opposed to the doctrine. And the courts of Arkansas, Georgia, Illinois, Louisiana, Maine, Minnesota, ISTew Jersey and Ehode Island have by a uniform current of authority established the doctrine that the chief executive of the state is, as to the performance of any and all official duties, entirely removed from the control of the courts, and that he is beyond the reach of mandamus, not only as to duties of a strictly executive or political nature, but even as to acts purely ministerial whose performance the legislature may have required at his hands, i In support of this doctrine, the courts adopting it have relied largely upon the three-fold division of the powers of government which prevails in this country, and upon the necessity of maintaining the perfect independence of the executive, legislative and judi- cial departments. And while, under the American system, it is intended that the functions of these co-ordinate departments shall be conjointly exercised, yet each is to be closely confined discretionary power, his whole duty ministerial duties imposed upon being that of simple obedience to him by statute, which might have the command of the legislature ; been devolved on another officer if and when this is done, the governor the legislature had seen fit, and on is to be viewed as merely a minis- the performance of which some terial agent of the law; and if he specific, private right depends, he fails or refuses to perform the act may be made amenable to the com- required of him, he is amenable to pulsory process of the proper court the law; and any person whose by mandamus." rights are dependent on the per- ' Hawkins b. The Governor, lArli. formance of such act may have re- 571 ; State a.Towns, 8 Geo. 360 • State dress by resorting to the proper v. "Warmoth, 23 La. An. 1 ; State v. legal remedy. * * While, there- The Governor, 39 Mo. 388 ; In re fore, it is true that, in regard to Dennett, 32 Me. 508; State v. The many of the duties which belong to Governor, 1 Dutch. 331 ; Chamber- his office, the governor has, from lain v. Sibley, 4 Minn. 309 ; Mauran the very nature of the authority, a «. Smith, 8 R. 1. 192 ; People v. Bis- discretion which the courts can not sell, 19 111. 239; People v. Yates, 40 control, yet in reference to mere IlL 136. 96 jtfANBAMTJS. [PAET I. to its own particular sphere, and any interference on the part of the judiciary with the functions of the executive, either to command the execution of a duty enjoined upon him by law, or to regulate the manner of its performance, is an unwarrant- able assumption of power upon the part of the judiciary, alike subversive of the political balance between the three great departments and destructive of the independence of the execu- tive, i The executive department, as to the discharge of its ' State V. The Governor, 1 Dutch. 331; Hawkins v. The Governor, 1 Ark. 570 ; In re Dennett, 33 Me. 508 ; People D.Bissell, 19 111. 229; State®. Warmoth, 22 La. An. 1 ; Mauran v. Smith, 8 R. I. 192. State v. The Governor, 1 Dutch. 381, was an ap- plication for a mandamus directing the governor to sign and issue to the relator a commission to an office to which he claimed to he duly elected. The court say: "In the third place, we are of opinion that the mandamus must be denied, upon the broad ground that this court has no power to award a mandamus, either to compel the execution of any duty enjoined on the executive by the constitution, or to direct the manner of its performance. The exercise of such power would be an unwarrantable interference with the action of the executive within his appropriate sphere of duty. The constitution has divided the powers of government into distinct depart- ments, and cautiously provided for their independent exercise. It has expressly forbidden any person be- longing to or constituting one of these departments, from exercising any of the powers properly belong- ing to either of the others, except as expressly provided in the constitu- tion itself. It has vested in the gov- ernor all the executive powers of the government. Among the powers specifically enumerated, is that ot issuing commissions under the great seal of the state to all such officers as shall require to be com- missioned. The issuing of the com- mission under the constitution of this state is clearly an exercise of political power. In regard to any other executive duty prescribed by the constitution, it has never been pretended that the judiciary has the power to enforce its execution, or to direct the manner of its perform- ance. The constitution requires that the governor is to take care that the laws be faithfully executed; can the judiciary compel the perform- ance of this duty ? He is required to sit as a member of the court of pardons ; can the judiciary inter- fere if the duty is neglected ? Why is it that in this particular branch of executive duty, (the issuing of commissions,) and in no other, the court may interfere ? It is'said that the granting of a commission is a mere ministerial act ; but is it, there- fore, less an executive act! As contradistinguished from judicial duties, all executive duties are min- isterial. The idea seems to be enter- tained that the duty of the executive becomes ministerial, when no dis- cretion is left as to the manner of its performance, and that in such case the court may interfere to compel its performance. If this be CHAP. II.] TO PUBLIC OFFICERS. 97 official functions, is responsible not to tlie judiciary, but to the people, and the courts can no more interfere with executive discretion, than can the legislature or executive with judicial discretion. And the constitutions of the various states having clearly iixed the boundaries between the powers of the three departments, the courts are powerless to obliterate the limits thus established.! the test, it follows, that wherever the executive duty is clear the judi- ciary is authorized to interfere ; but in all cases of doubt or difSculty, or uncertainty, the responsibility of acting rests upon the executive alone. In many cases the law al- lows the executive no discretion. The duty must be performed in strict accordance with the law, but this court has not, therefore, power to order the duty to be performed. All executive duty is required to be executed by a higher authority than the order of this court, viz., by the mandate of the constitution. The absence of discretionary power can not change the character of the act, or warrant the interposition of the judiciary. If by ministerial duties, are meant duties performed by one acting under superior authority, or not with unlimited control, none of the duties of the executive are min- isterial. All the powers conferred by the constitution upon the gov- ernor are political powers, all the duties enjoined are political duties. Touching all the powers conferred on the executive by the constitution, he is entirely independent of the control of the judiciary, being re- sponsible to the people alone, and liable to impeachment for misde- meanor in office. " ' Hawkins s.The Governor, 1 Ark. 570. This was an application for a rule upon the governor of the state 7 to show cause why a peremptory mandamus should not he awarded against him, commanding him to issue a commission to the petitioner for a public office which he claimed. The jurisdiction was denied by the court in an exhaustive opinion. Lacy, J., concluding as follows : "The analysis of his duties, then, clearly proves that he is in no way amenable to the judiciary for the manner in which he shall exercise or discharge these duties. His re- sponsibility rests with the people, and with the legislature. If he does an unconstitutional act, the judi- ciary can annul it, and thereby assert and maintain the vested rights of the citizen. The writ asked for, however, does not proceed upon the ground that the governor has done any illegal or unconstitu- tional act, but that he has refused to perform a legal or constitutional duty. In the first case, the court certainly has jurisdiction; and in the last, they unquestionably have not. The court can no more inter- fere with executive discretion, than the legislature or executive can with judicial discretion. The con- stitution marks the boundaries be- tween the respective powers of the several departments, and to obliter- ate its limits would produce such a conflict of jurisdiction as would inevitably destroy our whole politi- cal fabric, and with it the principles 98 MANDAMUS. [PART I. § 121. The doctrine as thus stated has been most frequently applied in cases where it has been sought by mandamus to compel the governor of a state to issue commissions to persons claiming to be rightfully elected to public offices. And the courts have held the duty of issuing such commissions to be of a political nature, requiring the exercise of the political powers of the governor, and none the less an executive act because it is positively required of the governor by law. Th« mere fact that no discretion is left with the executive as to the manner of its performance, does not render it a ministeria) duty in the sense that mandamus will lie to compel its per- formance, and whatever constitutional powers are conferred upon the e:^ecutive are regarded as political powers, and al? duties enjoined upon him as political duties. The mere absence, therefore, of any element of discretion as to the per- formance of the act, can not change its character or warrant the interposition of the extraordinary powers of the judiciary. And the issuing of a commission being thus treated as an executive or political, rather than a mere ministerial duty, the courts have refused to encroach upon the functions of the chief executive officer of the state by commanding him to perform this duty.' So the writ has been denied where it was of civil liberty itself. It would be ' State 11. The Governor, 39 Mo. an express violation of the constitu- 388 ; State ». The Governor, 1 Dutch, tion, which declares upon its face, 331 ; Hawkins v. The Governor, 1 ' that there shall he three separate Ark. 570. State «. The Governor, 39 and independent departments of Mo. 888, was an application to the government, and that no person or supreme court of the state, to com- persons, being of one of these de- pel the governor to issue a commis- partments, shall exercise any power sion to the relator as one of the belonging to either of the others.' justices of a county court. The See Constitution, Article II, Section jurisdiction of the court to interfere 2. This being the case, it is clearly with the executive by mandamus, demonstrable that the court has no was questioned by demurrer to the jurisdiction of the cause now under petition. After a full review of the consideration, and they have no authorities, the demurrer was sus- power to award a mandamus to the tained and the mandamus refused, governor to compel him to grant The reasons for refusing to interfere the commission. The motion must, with the acts of the executive are therefore, be dismissed for want of very clearly stated by Mr. Justice jurisdiction." Waoner, as follows : " By Article CHAP. II.] TO PUBLIC OFFICERS. 99 sought to compel the governor, with other state officers, to declare the relator elected to an office, under a statute requir- ing snch officers to open and compare the votes returned upon the election. In such case, it is held that the court can not entertain the inquiry vrhether the duty required of the execu- tive department has been correctly or incorrectly performed, since that department is beyond control by the judiciary, and is responsible for the correct performance of its duties only in 5, Section 25, of the constitution of this state, it is made the duty of the governor to commission all officers not otherwise provided for by lavr. There is no statutory enactment aflecting this constitutional provi- sion; the issuing of a commission is clearly an exercise of political povifer. But it is insisted that the granting of a commission is a mere ministerial act; but does it follow that it is therefore less an executive act? In one sense of the term, as contradistinguished from judicial duties, all executive duties may be said to be ministerial. We do not consider that the duty of the execu- tive becomes ministerial because no discretion is left as to the manner of its performance, and that in such case the court may interfere to en- force performance. From such a doctrine it would follow that where the executive duty was clear, the court would be authorized to inter- fere ; but in cases of doubt or diffi- culty, or uncertainty, the judiciary could afford no remedy, but the responsibility would rest alone on the discretion of the executive. In many cases no discretion is vested with the governor ; his acts and functions must be performed in strict accordance with specific law, but this court is not on that account invested with power to compel the acts, duties and functions to be per- formed. The chief magistrate of the state is required to execute the duties devolving on him by law, by a higher authority than the orders of this court — by the mandate of the constitution. Whatever powers are conferred by the constitution on the executive are political powers — whatever duties are enjoined upon him are political duties. As to all powers conferred, or duties enjoined by the constitution on the governor, he is entirely independent of the judiciary, and responsible to the people alone at the polls, and liable to impeachment for misdemeanor in office. If the court can issue a writ of mandamus to compel the execu- tive to grant a commission which he improperly, or from a mistaken view of the law withholds, why may they not award process to compel him to issue writs of elec- tion, and to see that the laws are enforced and obeyed ? If the power exists, and the jurisdiction is assumed, where is the limit to be placed? If he is clothed with a political discretion as regards the execution and enforcement of the laws, and many other duties which are enjoined on him, so he is con- cerning the issuing of commissions. If the court have power to prescribe the rule of his conduct in one case, 100 MANDAMUS. [PAET I. the manner prescribed by tlie constitution. And the mere fact that such duty might have been imposed upon any other officer than the chief executive of the state, does not change its char- acter or vary the rule, since the act must still be performed by the executive in his official capacity, for it is only in that capacity that the power is conferred upon him, and being entrusted to the executive department eo nomine, it is neces- sarily an official act.i they have in the other. This would make the judges the interpreters of the will of the executive, and the independence of the executive de- partment as a co-ordinate branch of the government would be virtually destroyed." In an earlier case in Missouri, the doeti'ine was main- tained that the general jurisdiction conferred upon the supreme court of the state by the constitution, giving it power to issue writs of mandamus, and to hear and deter- mine the same, was sufficient to warrant the issuing of an alterna- tive writ of mandamus to all per- sons, including the governor of the state, and that the proper course was to determine the question of jurisdiction over the person after return to the alternative writ. Pa- cific Railroad v. The Governor, 23 Mo. 353. In this case, however, the governor expressed his willingness to perform the duties required, pro- vided the law requiring them should be held constitutional, so that it did not become necessary to pass upon the question of the ultimate right of the court to compel the perform- ance of the duties by mandamus. In Georgia it has been held that the issuing of a commission by the gov- ernor of the state to officers duly appointed, is merely a ministerial duty, and that no satisfactory legal reasons exist why the jurisdiction by mandamus should not be ex- tended to cover such duty. And the refusal to interfere by man- damus in such cases is based wholly upon political grounds, the court holding that the ultimate effect of granting the writ in the event of a refusal upon the part of the gov- ernor to obey it, would be to deprive the state of the head of one depart- ment of the government. State «. Towns, 8 Geo. 360. ■ In re Dennett, 83 Maine, 508. The court, Sheplet, C. J., say: " This is a petition to the court, that a rule may issue that the governor and council and secretary of the state may show cause why a writ of mandamus should not issue, com- manding the governor and council to declare the petitioner elected to the office of county commissioner for^ the county of Lincoln. If such a writ can not be legally issued by the court, the rule to show cause should not be made. By the constitution the powers of the gov- ernment are divided into three dis- tinct departments, and no person belonging to one of these, can exer- cise any of the powers properly be- longing to either of the others, ex- cept in cases expressly directed or permitted. The authority conferred upon this court to issue writs of mandamus is limited to the issue of such writs to courts of inferior CHAP, n.J TO PUBLIC OrPIOEES. § 122. TJpon somewhat similar principles, relief by man- damus lias been denied wbere it was sought to compel the performance by the governor of a state of certain military duties incumbent upon him by law in his capacity as com- mander-in-chief of the military forces of the state. Thus, where it was made by law the duty of the governor, as com- mander-in-chief of the military of the state, to prefer charges against military officers for misconduct, and to convene a court martial for the trial of such charges, the court refused to inter- fere by mandamus to coerce the performance of this duty, upon the ground of the necessary independence of the three CO- ordinate departments of the government, and the necessity jurisdiction, to corporations, and to individuals. The act approved on February 22, 1842, c. 3, § 2, provides, tliat ' the governor and council shall open and compare the votes re- turned as specified in the first sec- tion of this act.' It is by such com- parison of the votes returned for each candidate, that the fact is ascertained, that some person has or has not been elected to the ofiice of county commissioner. If the act of opening and comparing the votes returned be an ofiicial duty to be performed by the executive depart- ment, this court can not entertain the inquiry, whether it has been correctly or incorrectly performed. That department is responsible for the correct performance of its duties in the manner prescribed by the constitution, but it is not responsi- ble to the j udicial department. The argument, that it can not properly be regarded as an official duty of the executive department, because its performance might by law have been entrusted to other persons, is not regarded as sound. The per- formance of the duty might have been entrusted to others, and it might have been entrusted to the judicial department. It does not follow that an act can not be the official act of a department of the government because other persons might lawfully have performed the same acts, if performance had been by law entrusted to them. This court has been authorized to lay ovit highways ; and it could do so only as a court and in the exercise of its official duties; and yet other per- sons might have been autliorized to perform those duties. Money is granted and works are directed to be performed by law under the direction of the president of the United States or of a governor of a state. In such cases the law might have entrusted the supervision to other persons. This duty is not necessarily to be performed by an executive department of the govern- ment by any provision of the con- stitution. When the performance is by law entrusted to an executive department of a government eo nomine, the performance of the duty is an official act. The individual or persons composing the executive department can not perform the act without being clothed with the offi- cial authority." 102 MAHDAMUS. ' [PABT I. of limiting eacli department to its appropriate sphere of action. 1 Nor in such case is the rule affected by the fact that the duty whose performance is sought is incumbent upon the executive, not in his civil capacity as governor, but in his military capacity as commander-in-chief, since the two func- tions are necessarily and inseparably united, and the governor is no more subject to the control of the courts in one capacity than in the other. ^ § 123. The issuing and delivering by the governor of a state of state bonds, claimed by relators in payment of certain public work performed by them under an act of legislature, is regarded as a duty falling within the principles above dis- cussed, and hence beyond control by mandamus.* So the writ has been refused, where it was sought to compel the governor to issue to the relator new bonds of the state for arrears of interest due upon certain other state bonds, the issuing of the new bonds being required of the governor by an act of legis- lature.* So, too, mandamus has been denied against the gov- ernor of a state, where it was sought to compel him to comply with his official duty, by depositing in the office of the secretary of state a bill duly passed by both houses of the legislature. ^ § 124. From the peculiar form and structure of our system of government, each state being sovereign and independent within itself, except in as far as its sovereignty may have been delegated to the general government, it follows that the chief executive officers of the different states are entirely inde- pendent of control by the federal judiciary in the perform- ance of their official duties, and these duties can not be coerced by mandamus from the federal courts. And while it is the plain and imperative duty of the governor of any state, upon proper demand made by the governor of any other state, to deliver up fugitives from justice from such other state, this duty being imposed upon him by the constitution and laws of the United States, yet the federal courts are powerless to com- > Mauran v. Smith, 8 K. I. 193. " People v. Bissell, 19 111. 329. ' Id. . ' People V. Yates, 40 111. 126. And ' State V. Warmoth, 32 La. An. i. see People v. Hatch, 33 111. 9. CHAP. II.] TO PTJBLIO OPFIOEES. 103 pel the performance of this duty, and can not grant the writ of mandamus in such a case, even though the act to be per- formed is purely ministerial. ^ The performance of such • duties is to be left to the fidelity of the executive of each state to the compact entered into with the other states when it became a member of the union, and if he refuses to perform so plain a duty, there is no power in the federal government to coerce its performance.^ § 125. Mandamus will not lie to a secretary of state, to require him to certify an enrolled act of the legislature to be a law, which has not come into his possession under and by virtue of the law defining his duties, even though it be his duty to make certified copies of all laws, acts, resolutions, or other records pertaining to his office. Thus, where a bill has- been placed in the hands of the secretary of state by the lieu- tenant-governor, with the written objections of the governor thereto, with instructions to keep and • return the bill on the opening of the next session of the legislature to the house in which it originated, the secretary will not be required by man- damus to certify that the bill was a law, and had become so by the failure of the governor to return the same with his objections within the time fixed by law.* § 126. Where, imder the charter of a railway company and the laws of a state, the railway is entitled to have issued to it land certificates from the general land oflice of the state, for a certain amount of land proportioned to the amoTint of railway actually completed, the commissioner of the land ofiice, may be required by mandamus to issue the certificates to the rail- way company to which it is lawfully entitled. The commis- sioner in such case, although regarded in a general sense as an executive officer, is vested with no discretion as to the par- ticular duty in question, and is therefore subject to the control of the courts by mandamus.* § 127. Questions of much nicety have arisen in determin- ing the extent to which the courts may interfere by man- ' Commonwealth v. Dennison, 34 ' People v. Hatch, 33 111. 9. How. 66. * Houston & Great Northern R " Id. Co. V. Kuechler, 36 Tex. 382. 104 MANDAMUS. [PABT I. damns with the heads of executive departments of the govern- ment of the United States, cabinet officers and others of a like nature, whose general functions are of an executive or politi- cal character. The true test to be applied in cases of this nature, is whether the duty is of an executive or political character, requiring the exercise of official judgment, or whether it is ministerial in its nature, involving the exercise of no official discretion, being specifically and peremptorily required of the officer. If of the latter class, the courts, with- out attempting to interfere with the general executive or political functions of the officer, may properly require at his hands the performance of a duty plainly incumbent upon him by law, and as to which he is vested with no discretionary powers. Thus, where by the provisions of an act of congress, the solicitor of the treasury department was directed to audit and adjust certain claims against the postal department of the government, and to allow the claimants such an amount as he should deem just, and it was made the duty of the postmas- ter-general to credit the claimants with whatever sura the solicitor should award, upon refusal of the postmaster-general to perform this duty mandamus was granted, the act required being regarded as a precise, definite act, ministerial in its nature, and concerning which the postmaster-general was vested with no discretion, i And in England the writ has ' Kendall v. The United States, 12 of the law, and not to the direction Pet. 524. Mr. Justice Thompson, of the president. And this is em- delivering the opinion of the court, phatically the case, where the duty- says: "There are certain political enjoined is of a mere ministerial duties imposed upon many officers character. Let us proceed, then, to in the executive department, the dis- an examination of the act required charge of which is under the direc- by the mandamus to be performed tion of the president. But it would by the postmaster-general ; and his be an alarming doctrine, that con- obligation to perform, or his right gress can not impose upon anyexecu- to resist the performance, must de- tive officer any duty they may think pend upon the act of congress of proper, which is not repugnant to the 2d of July, 1836. This is a any rights secured and protected by special act for the relief of the re- the constitution; and in such cases, lators, Stockton & Stokes; and was the duty and responsibility grow passed, as appears on its face, to ad- out of and are subject to the control just and settle certain claims which CHAP. II.] TO PTTBLIC OFFICEBS. 105 been granted to the lords of the treasury, to compel them to make payment of a pension properly allowed out of a fund appropriated by parliament for this purpose, there being no other adequate, legal remedy. In such case, the grounds of they had for extra services, as con- tractors for carrying the mail. These claims were, of course, upon the United States, through the post- master-general. The real parties to the dispute were, therefore, the rela- tors and the United States. The United States could not, of course, be sued, or the claims in any way enforced against the United States, without their consent obtained through an act of congress, by which they consented to submit these claims to the solicitor of the treasury to inquire into and deter- mine the equity of the claims, and to make such allowance therefor as upon a full examination of all the evidence, should seem right, accord- ing to the principles of equity. And the act directs the postmaster- general to credit the relators with whatever sum, if any, the solicitor shall decide to be due to them, for or on account of any such service or contract. The solicitor did ex- amine and decide that there was due to the relators, one hundred and sixty-one thousand five hun- dred and sixty-three dollars and ninety-three cents. Of this sum, the postmaster-general credited them with one hundred and twenty- two thousand one hundred and one dollars and forty-six cents : leaving due the sum of thirty-nine thousand four hundred and seventy-two dol- lars and forty-seven cents, which he refused to carry to their credit. And the object of the mandamus was to compel him to give credit for this balance. Under this law the post master-general is vested with no discretion or control over the deci- sions of the solicitor; nor ia any appeal or review of that decision provided for by the act. The terms of the submission was a matter resting entirely in the discretion of congress; and if they thought proper to vest such a power in any one, and especially as the arbitrator was an oflScer of the government, it did not rest with the postmaster- general to control congress, or the solicitor, in that affair. It is unne- cessary to say how far congress might have interfered, by legisla- tion, after the report of the solicitor. But if there was no fraud or mis- conduct in the arbitrator, of which none is pretended, or suggested, it may well be questioned whether the relators had not acquired such a vested right, as to be beyond the power of congress to deprive them of it. The act required by the law to be done by the postmaster-gen- eral is simply to credit the relators with the full amount of the award of the solicitor. This is a, precise, definite act, purely ministerial ; and about which the postmaster-general had no discretion whatever. The law upon its face shows the exist- ence of accounts between the rela- tors and the post office department. No money was required to be paid^ and none could have been drawn out of the treasury without further legislative provision, if this credit should over-balance the debit stand- 106 MABTDAMIIS. [part I. relief are two fold: first, the existence of a clear legal right in the claimant, involving a corresponding duty on the part of the officials; and second, the absence of any adequate remedy at law in the ordinary course of proceedings. These condi- ing against the relators. But this was a matter with, which the postmaster- general had no concern. He was not called upon to furnish the means of paying such balance, if any should be found. He was sim- ply required to give the credit. This was not an official act in any other sense than being a transac- tion in the department where the books and accounts were kept ; and was an ofllcial act in the same sense that an entry in the minutes of a court, pursuant to an order of the court, is an official act. There is no room for the exercise of any dis- cretion, official or otherwise. All that is shut out by the direct and positive command of the law and the act required to he done is, in every just sense, a mere ministerial act. And in this view of the case, the question arises, is the remedy by mandamus the fit and appropri- ate remedy ? The common law, as It was in force in Maryland when the cession was made, remained in force in this district. We must, therefore, consider this writ as it was understood at the common law with respect to its object and pur- pose, and varying only in the form required by the different character of our government. It is a writ, in England, issuing out of the kings bench, in the name of the king, and is called a prerogative writ, but considered a writ of right; and ia directed to some person,corporation, or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office or duty, and which is sup- posed to be consonant to right and justice, and where there is no other adequate, specific remedy. Such a writ, and for such a purpose, would seem to be peculiarly appropriate to the present case. The right claimed is just and established by positive law ; and the duty required to be performed is clear and speci- fic, and there is no other adequate remedy." The case of Marbury n. Madison, 1 Cranch, 49, has been re- peatedly cited in support of tlie same doctrine, and has been re- garded by the courts, almost with- out exception, as the leading Ameri- can case in support of the jurisdic- tion by mandamus over the acts of ministerial officers. In truth, no adjudication of the courts has ever been more thoroughly misunder- stood, or more persistently misap- plied. Marbury v. Madison, decided in 1803, was an application to the Supreme Court of the United States, invoking the aid of its original ju- risdiction, for a rule upon Mr. Madison, the then secretary of state, to show cause why he should not deliver to the relators their com- missions as justices of the peace for the District of Columbia, to which offices they had been duly nomin- ated by the president and confirmed by the senate. The, court refused to interfere, upon the ground that its original jurisdiction, being limited by the constitution to cases " affect- ing ambassadors, other public min. CHAP. II,] TO PUBLIC OFFICEES. 107 tions uniting, mandamus is recognized as the only appropriate remedy, adequate to afford redress, i § 128. The rule as laid down in the preceding section would seem to be limited to such acts or proceedings on the part of the officer as are not implied in the inherent functions of his oifice, being rather of an extraneous character, minis- terial in their nature, and required of the individual rather than of the functionary. * Where, therefore, the particular duty in question is one which is required of a cabinet- officer or head of a department, in the ordinary and usual course of 'ais official duties, necessarily calling for the exercise of some degree of official judgment and discretion, and he has acted upon or decided the case presented, the courts have uniformly refused to interfere by mandamus to revise such action or to control his decision.* § 129. This principle has been repeatedly applied to cases where the secretary of the treasury, in the ordinary discharge of his duties, has passed upon and refused to allow a claim ipon the treasury of the United States. In such cases, his isters and consuls, and those in lied upon Marbury v. Madison as which a state shall be a party," did conclusive authority in support of not extend to the case of public ofiS- the jurisdiction. The views of the cers, and that that clause of the court as presented by the illustri- judiciary act authorizing the su- ous Makshall, upon the question preme court to issue writs of man- of mandamus to ministerial officers, damus to such officers, was there- are, of course, entitled to the re- fore unconstitutional and void. It spect which is due to all the legal will thus be seen that the question opinions of the first of American of jurisdiction was the sole ques- jurists. But as judicial authority tion upon which the court were in the class of cases under consider- called upon to decide, and beyond ation, they are mere obiter dicta. this question the case can not be ' King v. Lords Commissioners, regarded as authority. Notwith- 4 Ad. & E. 286. But see Same v. standing this fact, the case has been Same, lb. 984. constantly cited from that day to " See United States v. Guthrie, 17 this, as the leading authority in How. 284; Brashear ». Mason, 6 support of the jurisdiction by man- How. 92. damus over ministerial officers, and " Decatur v. Paulding, 14 Pet. 497; hardly a case has occurred in which United States v. Guthrie, 17 How. the relief has been granted to com- 284 ; Commissioner of Patents v. pel the performance of ministerial Whiteley, 4 Wal. 522 ; Secretary v. duties, where the couit has not re- McGarrahan, 9 Wal. 398. 108 MANDAMUS. [PAET I. action being strictly within the limits of his official duties, and the power and duty of determining the justice and legality of the claim being incumbent upon him by law, the courts will not entertain an application for a mandamus to compel the secretary to pay such rejected claim. i Indeed, it is a sufficient ' United States v. Guthrie, 17 How. 384; Brashear v. Mason, 6 How. 93. United States v. Guthrie was an application to the circuit court of the United States for the District of Columbia, for a man- damus to compel the secretary of the treasury to pay the salary of a territorial judge, for the unexpired term of his office, from which he had been removed by the president. The decision of the cir- cuit court, overruling the applica- tion, was sustained. Mr. Justice Dakibl, pronouncing the opinion of the court, says ; " The only legit- imate inquiry for our determination upon the case before us is this: whether, under the organization of the federal government, or by any known principle of law, there can be asserted a power in the circuit court of the United States, for the District of Columbia, or in this court, to command the withdrawal of a sum or sums of money from the treasury of the United States, to be applied in satisfaction of disputed or controverted claims against the United States? This is the ques- tion, the very question presented for our determination; and its simple statement would seem to carry with it the most startling considerations — nay, its unavoidable negation, un- less this should be prevented by some positive and controlling com- mand ; for it would occur a priori, to every mind, that a treasurj', not fenced round or shielded by fixed and established modes and rules of administration, but which could be subjected to any number or descrip- tion of demands asserted and sus- tained through the undefined and. undefinable discretion of the courts, would constitute a feeble and inad- equate provision for the great and inevitable necessities of the nation. The government under such a reg- ime, or, rather, under such an absence of all rule, would, if practi- cable at all, be administered not by the great departments ordained by the constitution and laws, and guided by the modes therein pre scribed, but by the uncertain, and perhaps contradictory action of the courts, in the enforcement of their views of private interest. But the question proper for consideration here has not been left for its solu- tion upon theoretical reasoning merely. It has already been author- itatively determined. The power of the courts of the United States to command the performance of any duty, by either of the principal ex- ecutive departments, or such as is incumbent upon any executive offi- cer of the government, has been strongly contested in this court; and, in so far as that power may be supposed to have been conceded, the concession has been restricted by qualifications, which would seem to limit it to acts or proceedings by the officer, not implied in the sev- eral and inherent functions or duties incident to his office ; acts of a char- CHAP. II.J TO PUBLIC OFFICEES. 109 objection to interference by mandamus in such case, that the secretary of the treasury is prohibited by law from directing the payment of any moneys out of the treasury not specifically appropriated by law.* Nor will the courts in any case compel by mandamus the payment of money out of the United States treasury, in satisfaction of disputed or controverted claims acter rather extraneous,and required of the individual rather than of the functionary. Thusithas been ruled, that the only acts to which the power of the courts, by mandamus, extends, are such as are purely min- isterial, and with regard to which nothing like judgment or discre- tion, in the performance of his du- ties, is left to the ofBcer ; but that, wherever the right of judgment or decision exists in him, it is he, and not the courts, who can regulate its exercise. These are the doctrines expressly ruled by this court, in the case of Kendall v. The United States, 18 Pet. 534; in that of Decatur v. Paulding, 14 Pet. 497; and in the more recent case of Brashear «. Ma- son, 6 How. 93 ; principles regarded as fundamental and essential, and apart from which the administration of the government would be imprac- ticable. These principles, just stat- ed, are clearly conclusive upon the case before us. The secretary of the treasury is inhibited from directing the payment of moneys not specific- ally appropriated by law. Claims against the treasury of the United States, like the present, are, accord- ing to the organization of that de- partment, to be examined by the first auditor ; from this officer they pass, either under his approval or by appeal from him, to the comp- troller ; and from the latter they are carried before the secretary of the treasury, without whose approba- tion they can not be paid, and who can not,even by the concurring opin- ion of the inferior officers of the de- partment, be deprived of his own iudgment upon the justice or legal- ity of demands upon public money confided to his care. Opposed to the claim under consideration, we have the decisions of three different functionaries; to each of whom has been assigned, by law, the power and duty of judging of its justice and legality. By what process of reasoning, then, the authority to make those decisions, or those de- cisions themselves, can be recon- ciled or identified with the perform- ance of acts merely ministerial, we are unable to conceive ; and unless so identified, or there could have been shown some power in the cir- cuit court competent to the repeal- ing of the legislation by congress, in the organization of the treasury department — competent, too, to the annulling of the explicit rulings of this court, in the cases hereinbefore cited — the circuit court could have no jurisdiction to entertain the ap- plication for a writ of mandamus in this instance. As no such power has been shown, nor, in our opin- ion, could have been shown, or ever had existence, the decision of the circuit court, overruling the applica- tion, is approved and affirmed." ' United States v. Guthrie, supra. 110 MAWBAMTJS. [PAET I. against the government, i And in accordance with the well settled principle that no action for a debt can be maintained against the government, except by its own consent, mandamus will not lie to enforce a claim circuitonsly against the secretary of the treasury, where it can not be enforced against the gov- ernment. ^ So the writ will be refused wherfe it is sought to compel the secretary of the treasury to enter a verdict against the United States upon the books of the treasury department, and to pay the amount of such verdict, it being a sufficient objection that there has been no appropriation by congress to pay the claim, since without such appropriation the secretary of the treasury is powerless to act in the premises. ^ And, generally, it may be said that mandamus will not lie to the secretary of the treasury to perform any act whose performance is not expressly required by law.* § 130. The rule denying the aid of mandamus to contro' the action of cabinet officers and others whose functions are of a like character, in cases where they have passed upon matters properly resting within their official discretion, has been applied to the duty of the secretary of the navy in expounding the naval pension laws. And where it is made the duty of that officer to pay pensions from the navy pension fund, accord- ing to the terms of the acts of congress regulating the subject, of which fund he is constituted the trustee, where the secretary has exercised his judgment in construing the law under which he acts, in a case properly falling within his jurisdiction, his decision is final and will not be controlled by mandamus. Thus, where an applicant claims a pension under an act of congress and another under a resolution of congress, and the secretary has decided that the claim can only be sustained as to one, leaving the applicant to select under which to proceed, the decision will not be revised by mandamus. ^ ' Id. to allow the applicant a pension ' Reeside d. Walker, 11 How. 373. provided by a resolution of congress. ' Id. The applicant claimed both under * Id. the general law, and under the res- ' Decatur v. Paulding, 14 Pet. 497. olution. The secretary had decided. This was an application for the writ in conformity with the opinion of to compel the secretary of the navy the attorney general, that the appli- CHAP. II.] TO PTJBLIO OFFICEES. Ill § 131. Upon similar principles the writ has been refused where sought to correct the action of the commissioner of pat- ents upon matters properly falling within the scope of his oflBcial action. And where the commissioner is required by law to grant reissues of patents to assignees, it is his first duty to decide whether the applicant for the reissue is an cant was not entitled to both, but that she might take under either at her election. She then elected to receive under the general law, under protest, and applied for a man- damus against the successor of the secretary to compel him to allow her the pension provided by the res- olution. The circuit court refused the peremptory writ, and its decis- ion was sustained on writ of error. Taney, C. J., says : * * " The duty required by the resolution was to be performed by him (the secretary) as the head of one of the executive de- partments of the government, in the ordinary discharge of his official duties. In general, such duties, whether imposed by act of congress or by resolution, are not mere min- isterial duties. The head of an ex- ecutive department of the govern- ment, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolu- tions of congress, under which he is from time to time required to act. If he doubts, he has a right to call on the attorney general to assist him with his council ; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments, as well as for the president, unless their duties were regarded as executive, in which judgment and discretion were to be exercised. If a suit should come before this court, which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construc- tion of a law must be given in a case in which they have jurisdiction, and in which it is their duty to in- terpret the act of congress, in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the sec- retaries, nor revise his judgment in any case where the law authorized him to exercise discretion, or judg- ment. Nor can it by mandamus, act directly upon the officer and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties. The case be- fore us illustrates these principles, and shows the diflference between executive duties and ministerial acts. The claim of Mrs. Decatur having been acted upon by his pre- decessor in office, the secretary was obliged to determine whether it was proper to revise that decision. If he had determined to revise it, he must have exercised his judgment upon the construction of the law and the resolution, and have made 112 MANDAMUS. [PAET I. assignee, and having examined this question and decided adversely to the applicant, the writ will not go to compel him to make another examination, since it will not be allowed to subserve the purposes of a writ of error. ^ § 132. The duty of executive officers of the general govern- ment in passing upon claims for the issuing of patents for public lands, necessarily involving the hearing of proofs and the rendering of a decision thereon, is regarded as a duty involving the exercise of such a degree of judgment and discretion as to remove it from the control of the courts. Mandamus, there- fore, will not lie to the secretary of the interior to compel the issuing of a patent to a claimant whose application has been refused. 2 § 133. As regards duties imposed by law upon sheriflfs, who are generally considered as executive officers, it is to be observed that mandamus will lie to such officers, commanding the performance of specific duties clearly enjoined upon them by virtue of their office, or by operation of law, and concern- ing which they are vested with no discretionary powers.* Thus, where the duty is imposed upon a sheriif by law of choosing appraisers to appraise the value of property taken on execution, which is claimed by the judgment debtor as exempt up his mind whether she was enti- gress, requiring the exercise of so tied under one only, or under hoth. much judgment and investigation, A.nd if he determined that she was can, with no propriety, be said to entitled under the resolution as well command a mere ministerial act to as the law, he must then have again be done by the secretary. The inter- exercised his judgment in deciding ference of the courts with the per- whether the half-pay allowed her formance of the ordinary duties of was to be calculated by the pay the executive departments of the proper, or the pay and emoluments government, would be productive of of an officer of the commodore's nothing but mischief; and we are rank. And after all this was done, he quite satisfied- that such a power must have inquired into the condi- was never intended to be given to tion of the navy pension fund, and them." the claims upon it, in order to ascer- ' Commissioner of Patents v. tain whether there was money Whiteley, 4 Wal. 522. enough to pay all the demands upon " Secretary «. McGarrahan, 9 Wal. it; and if not money enough, how it 298. was to be apportioned among the " People e. McClay, 2 Neb. 7 ; Fre- parties entitled. A resolution of con- mont v. Crippen, 10 Cal. 211. CHAP. II.] TO PUBLIC OPFICEES. 113 from levy under the exemption laws of the state, the duty of the sheriff being plain and imperative, it may be enforced by mandamus, there being no other adequate remedy to enforce its performance. 1 So the writ will go to command a sheriff to execute final process of restitution in an action of forcible detainer, his duty in the premises being plain" and unequi- vocal. ^ And in such case, the existence of a remedy by an action upon the sheriff's bond presents no bar to the jurisdic- tion by mandamus, since the possession of the property in controversy is the main thing sought, and this can only be had by enforcing the writ of restitution.* § 134. The writ has been granted to compel a sheriff to execute a conveyance of land sold on execution to one claiming to be entitled thereto as a purchasing creditor, even though the sheriff had issued a prior deed to another creditor claiming in the same capacity, and the land had thus passed into the hands of an innocent purchaser.'* But the writ will not go to compel the issuing of a deed by a sheriff of lands sold at a judicial sale, to a purchaser who refuses payment of the purchase money on the ground that he is entitled to the land as being the oldest execution creditor, there being an unsettled contest as to the priority of lien.^ Nor will the writ be granted to compel the issuing of a sheriff's deed for land sold under execution, where the proceedings are so far voidable ' People v. McClajr, 3 Neb. 7. " We empt from forced sale or execution, have no doubt," says Mr. Justice This done, the respondent had but Lake, " that mandamus is the pro- one course to pursue: this was to per remedy in this case. There is call three disinterested freeholders no other adequate remedy for the of the county, and haTe them ap- wrong of which the relator com- praise the property, and if its value, plains. By no other means can he as shown by the appraisement, did compel the respondent to do that not exceed five hundred dollars, which the law specially enjoins release it from the execution and upon him, as a duty resulting from return it at once to the owner." the official position that he occupies. Accordingly the peremptory writ The relator filed an inventory of all was awarded, his personal property, as required ' Fremont v. Orippen, 10 Cal. 211. t)y sect. 533 of the Code of Civil . ^ i^. Procedure, which embraces that ' People v. Fleming, 4 Denio, 137. which the respondent had levied ' Williams v. Smith, 6 Cal. 9\. upon, and claimed it as being ex- 8 114 MANDAMUS. [PAET I. that the purchaser's right is by no means clear, as where the sheriff has sold several distinct and separate tracts in one lot and for one aggregate'price, it being his duty to offer each tract for sale separately. ^ VIII. Legislative Offioees. § 135. Mandamus not granted to legislative department as to legislative functions. 136. But may be granted as to ministerial duties. § 135. As regards the jurisdiction of the courts by man- damus over legislative officers, while but few cases have occurred where judicial aid has actually been invoked against the legislative department, the question would seem upon principle to present no difficulties, and to be readily solved by an application of the doctrines already established as applicable to cases where the extraordinary aid of the courts has been invoked against executive officers. And it may be asserted as a principle founded upon the clearest legal reasoning, that legislative ofiSeers, in as far as concerns their purely legislative functions, are beyond control of the courts by the writ of .mandamus. The legislative department being a co-ordinate and independent branch of the government,* its action within its own sphere can not be revised or controlled by mandamus from the judicial department, without a gross usurpation of power on the part of the latter. Mandamus, therefore, will not lie to compel the speaker of the house of representatives of a state legislature to transmit to the senate a bill which it is alleged has passed the house, but which the speaker has decided has not passed. The question being strictly within the legislative functions of the speaker, and the house having sustained his decision on appeal therefrom, the courts wiU refuse to interfere with such an exercise of official judgment • Winters v. Heirs of Burford, 6 Cold. 828. CHAP. II.] TO PUBLIC OFPICEES. 115 and discretion in a matter properly within the jurisdiction of the legislative department. i § 136. Where, however, the duty required of the legislative officer is simply of a ministerifi,! nature, not calling for the exercise of any especial legislative functions, nor involving ■any degree of official discretion, there would seem to be no impropriety in interfering by mandamus upon a failure to perform the duty. Thus, the writ has been granted, upon the application of a member of the house of representatives of a state, to compel the speaker of the house to certify to the comptroller of public accounts the amount to which the mem- ber was entitled as compensation for mileage. ^ But even in such a case the jurisdiction is asserted with a considerable degree of caution. ^ Ex pa/rte Echols, 39 Ala. 698. Say the court, Bykd, J. : * * "The speaker decided that the bill had not passed by a vote of two-thirds of that branch of the legislature ; and an appeal was taken from that decision to the house, and the house sustained the decision of the speaker. This was a question cer- tainly within the jurisdiction of the Bpeaker and house to pass upon, and is not a mere ministerial duty, but one that pertains to their legis- lative functions, and is one over which the house has exclusive juris- diction. No other departmant of the government can revise its action in this respect, without a usurpa- tion of power. * * This court will not interfere with either of the other co-ordinate departments of the government in the legitimate exercise of their jurisdiction and powers, except to enforce mere ministerial acts, required by law to be performed by some ofllcer there- of; and not then, if the law leaves it discretionary with the oflScer or department. * * It seems to be held by all the authorities, that the writ of mandamus can only issue to some officer required by law to perform some ministerial act, or to a judicial officer to require him to take action; but not in a matter requiring judgment or discretion, to direct or control him in the ex- ercise of either. Among all the cases and text books on this subject, none go to the length of laying down the doctrine that the speaker of the house of representatives, or of a legislative body, in a matter arising in the regular course of legislation, upon which he is called to decide, can be controlled by this or any other tribunal, except by the one over which he presides; and that having sustained .his opinion and action, this court can not re- view it." ' Bxpa/He Pickett, 24 Ala. 91. 116 MANDAMUS. [PAET I. IX. Taxing Oiticees. § 137. The jurisdiction outlined. 138. English precedents. 139. Writ granted to enforce ministerial duties of taxing officers. 140. "When granted to compel equalization of assessments. 141. Not granted after officers have acted upon correction of assess. ments. 142. When granted in aid of collection of taxes against corporations. 143. Delinquent tax collectors. 144. Writ not granted before omission of duty; nor after time has elapsed ; respondent must actually be in office. 145. Purchaser of tax-sale certificates entitled to mandamus. 146. Writ granted to correct illegal assessments upon United States bonds. § 137. The jurisdiction by mandamus over the official acts of officers entrusted with the levying and collection of taxes forms a part of the general jurisdiction by this writ over the acts of public officers, and may be appropriately considered in this connection. We have elsewhere considered the use of the writ as applied to cases of municipal taxation, and the enforcement of municipal aid bonds, ^ and it is proposed to consider here the more general principles applicable to all officers entrusted by law with the duty of levying and collect- ing taxes. § 138. Perhaps the earliest reported case where the extra- ordinary aid of a mandamus was applied to the subject of taxation, was where the writ was allowed by the kings bench to compel local officers entrusted with tlje levying of a land tax to tax the land equally.^ The propriety of the writ for this purpose was, however, afterward denied by the kings bench, and it was held that the appropriate remedy was by appeal from the action of the taxing officers.* And it was held, still later, that the writ should not go to require the ' See Chapter V, Subdivision III. 354. But aemble, that if the assess- ' Queen w. Commissioners of Land ors should refuse to make any tax, Tax, 11 Mod. Rep. 306. mandamus would be the proper " Butler V. Cobbett, 11 Mod. Rep. remedy to compel them to act. Id. CHAP, 11.] TO PTTBLIC OFFICERS. . 117 making of an equal poor rate on the inhabitants of a parish, upon allegations that it was being made unequally, if the party dissatisfied had another remedy by appeal. ^ § 139. In this country the doctrine is well established, that in all cases where the duty of assessing or levying a tax is plainly required by law of particular officers, and no other remedy exists by which the duty may be enforced, mandamus will lie, the duty being treated as purely ministerial and unat- tended with any element of official discretion. ^ Thus, the duty of an assessor of taxes to assess lands liable thereto, is regarded merely as a ministerial act, and hence one which may be enforced by mandamus. ^ And where, by an act of legis- lature, commissioners are appointed to provide for the erection of county buildings, and the duty of levying a tax to defray their expenses is made incumberft upon an inferior court, the writ will go to compel the levying of the tax, it being a fixed, specific duty, and not resting in the discretion of the court.* Upon similar principles, where certain lands are by law exempt from taxation, and it is made the duty of the auditor general of the state to reject the taxes upon such lands, the duty being plain and unmistakable, its enforceiftent may be had by mandamus.^ § 140. As regards the duty of officers entrusted by law with the equalization of taxes and assessments, the courts may properly interfere by the writ to set such officers in motion, and to compel them to act upon an application properly pre- sented by a tax-payer dissatisfied with the tax assessed against him.' And it has been held that the writ might be granted against assessors who had improperly assessed shares of bank stock owned by the relator, to require them to cancel or cor- King V. Churchwardens of division III. Frtshford, Andr. 24. " People v. Shearer, 30 Cal. 645. ^ People u. Shearer, 30 Cal. 645 ; < Manor v. McCall, 5 Geo. 523. Manor v. McCall, 5 Geo. 522. And = People v. Auditor General, 9 see for an application of the same Mich. 134. principle to municipal officers en- « Virginia & Truckee R. Co. v. trusted with the duty of levying County Commissioners, 5 ITev. 341. municipal taxes. Chapter V, Sub- 118 MAH-DAMTTS. [PAET I. rect the assessment, i But mandamus will not go to a board of supervisors requiring theim to make corrections in the assessment of taxes for their county, after the assessments have been completed and warrants have been issued to the receiver of taxes and the matter has passed beyoiid the control of the supervisors, since the writ would be nugatory if issued, and the rule is well established that mandamus will never issue where it would be nugatory from want of power in the respondents to perform the act required.^ § 141. While, as shown in the preceding section, the writ may properly issue to set in motion oflScers entrusted with the correction of assessments, and to compel them to act upon an application properly presented, the courts will not interfere with or control the action of such officers when they have actually passed upon the application. The abatement or reduc- tion of taxes improperly assessed is, in such cases, essentially a judicial rather than a ministerial act. Hence it follows that when the proper officers have passed upon an application for the reduction of taxes, and have decided it adversely to the party aggrieved, they'can not be required by mandamus to alter their decision and to make an abatement in the tax.* So where school directors have assessed a school tax, the writ does not lie to compel them to discharge a tax-payer from payment of his portion of the tax, their power if any in this respect being discretionary.* § 142. The writ is sometimes invoked in aid of the collec- tion of taxes assessed against corporate bodies, and may be properly issued for this purpose, in the absence of any Other adequate remedy to enforce the collection. ^ Thus, where it is made by law the duty of the president, or other proper officer of banking corporations, to set aside and withhold out of the ' People u. Assessors of Barton, Barb. 317. 44 Barb. 148 ; People v. Olmsted, 45 ^ Gibbs v. County Commissioners Barb. 644. of Hampden, 19 Pick. 298. ' Colonial Life Insurance Co. v. * School Directors $. Anderson, Supervisors of New York, 34 Barb. 45 Pa. St. 388. 166 ; People u. Supervisors o# West- ' State v. Mayhew, 3 Gill, 487 ; Chester, 15 Barb. 607. And see Peo- Person «. Warren R. Co. 3 Vroom, pie u. Supervisors of Greene, 13 441. CHAP. II.] TO PUBLIC OFPICEES. Hy dividends or profits of the t)ank the amount of tax levied upon its stock, and to pay this amount into the treasury of the state, an appropriate case is presented for the aid of a mandamus upon a refusal to perform this duty, since the state has no other adequate remedy, i And where a railway company has made a lease of its road, the lessee stipulating to pay and dis- charge all taxes imposed on the property leased, the business being wholly conducted by the lessee and the lessor retaining no property of any material value, so that there is no other adequate remedy, mandamus will lie to compel payment of the tax.* § 143. Mandamus is the appropriate remedy to be employed against delinquent tax collectors to enforce the performance of their duties. And where the duty is clearly and unmistakably imposed upon public oflScers of issuing a warrant of dis- tress against delinquent collectors, the issuing of such warrant may be enforced hy mandamus if the collector neglects to collect and pay over the tax at the proper time. ^ Nor in such case can the respondent, as a ministerial officer, object that the act of the legislature authorizing the tax is unconstitutional, since it is not within the province of such offi^cers to deter- mine the constitutionality of laws, nor wiU the courts upon summary proceedings in mandamus determine as to the con- stitutionality of statutes affecting the rights of third persons.* ' State V. Mayhew, 3 Gill, 487. the collection and disbursement of 'PersonB.WarrenR. Co. 3Vroom, revenue in any of the departments 441. of the goTernment, has nogjight to ' Smyth v. Titcomb, 31 Me. 373 ; refuse to ^perform his ministerial Inhabitants of School District v. duties, prescribed by law, because Clark, 33 Me. 483 ; Waldron v. Lee, he may apprehend that others may 5 Pick. 333. But in the latter case, be injuriously affected by it, or that it is held that the court may look the law may possibly be unconstitu- into the facts shown by the return tional. He is not responsible for to determine whether the tax was the law, or for the possible wrongs properly assessed. which may result from its execu- * Smyth V. Titcomb, 31 Me. 373 ; tion. He can not refuse to act Inhabitants of School District v. because others may question his Clark, 33 Me. 482. "A public offl- right. The individuals to be affect- cer," says Mr. Justice Howard in ed may not doubt the constitution- Smyth V. Titcomb, " entrusted with ality of the law, or they may waive 120 MANDAMUS. [PAET I § 144. In no event will the courts interfere by mandamus in anticipation of a supposed omission of duty, and the writ will not, therefore, go to compel taxing officers to assess a tax, the time for which has not yet arrived, merely upon the pre- sumption that the officers will refuse to perform their duty at the proper time.^ Nor will the writ be granted commanding a tax to be imposed for a special and particular purpose, after the time prescribed by the legislature for the levy has elapsed.^ And where a tax collector, acting in good faith and in conformity with the order of a tribunal having jurisdiction of the matter, has remitted certain taxes, and his term of office has since expired by limitation, and he is therefore powerless to obey the mandate of the court, he will not be required by mandamus to proceed with the collection of the tax. 3 Nor will the writ issue to officers elect .to levy a tax, who have failed to qualify and have never assumed to act in any manner whatever, since they can not even be treated as officers de facto. ^ % 145. The writ has been granted to compel a county treasurer to assign and transfer to the purchaser tax sale cer- tilicates for lands bid off by the county at tax sales, the pur- their supposed rights or wrongs, or cially settled. The respondent was may choose to contest the validity required by law to issue a warrant of the enactment personally. Pub- of distress against the delinquent lie policy as well as public neces- collector, without inquiry into the sity and justice require prompt and proceedings prior to the assessment efficient action from such officers, and commitment of the tax, and as The st^e, counties, towns and he has neglected that duty without school districts must be^upplied, sufficient cause, a peremptory man- in order to accomplish the purposes damns must issue." of their organizations, and the 'Commissioners of Public Schools proper officers iil their respective u. County Commissioners, 20 Md. departments must seasonably fur- 449. nish the authorized amounts. The " Ellicott -o. The Levy Court, 1 consequences would be ruinous if Har. & J. 360; Commissioners of they could withhold their services Public Schools •!). County Commis- and the necessary means, either sioners, supra. from timidity or captiousness, until ' State v. Perrine, 5 Vroom, 354. all questions of law which might ■* State v. Supervisors of Beloit, 21 arise in the performance of their Wis. 280. official duties should first be judi- CHAP. II. J TO PITBLIC OFFIOEES. 121 chaser liaving tendered the whole amount of taxes due, with the penalty, interest and costs, the law giving him a clear right to the assignment under such circumstances. ^ But if in such case, the purchaser has failed to bring himself within the provisions of thef law governing the ternis of his application to the treasurer for the assignment of the certificates, he will be refused the aid of a mandamus. ^ § 146. Where the boards of supervisors of certain counties are authorized and empowered, upon the application of any person aggrieved, to hear and determine claims for illegal assessments upon United States bonds and secui'ities, which are exempt by law from taxation, and to repay the amount col- lected upon such illegal assessments, the duty imposed upon the supervisors is treated as a mandatory one, not resting in official discretion. The only questions for the supervisors to determine in such eases are questions of fact as to whether the illegal taxes have been paid and their amount, and the existence of the claims being undisputed, mandamus will go to require the supervisors to audit and allow the amounts thereof, and to cause the same to be levied and collected in the manner prescribed by law.* ' State V. Magill, 4 Kan. 415. ' People v. Supervisors of Otsego, ' State V. Bowker, 4 Kan. 114. 53 Barb. 564, 51 N. Y. 401. CHAPTEE III. OF MANDAMUS TO INFERIOR COURTS. I. Pkinciples Gotbendjg the Jtohsdiction, § 147 II. Bii/LS OF Exceptions, 199 III. Attoknets, 316 IV. State and Federal ComiTS, 325 V. MlNISTEKIAL FdNCTIONS OF CoiTRTS, 330 VI. Justices of the Peace, 239 VII. Special Illdstkations of the JraiisDicTiON 246 I. Peinoiplbs Goveening the Jueisdiction. 147. The jurisdiction well established; former retnedy in England. 148. Mandamus the present remedy to compel courts to act; but confer* no power. 149. Only lies to compel court to act; does not prescribe judgment. 150. Granted where court refuses to act on matters within its jurisdiction 151. Distinction as to preliminary questions not affecting merits. 152. Writ limited to setting court in motion ; general rule. 153. Not granted to change or set aside a verdict. 154. Not granted to alter record, receive plea, reinstate appeal, or U construe statute. 155. Does not lie to compel granting of habeas corpus, or punishmen* for contempt, or correction of errors in assessments. 156. Judicial discretion not subject to control by mandamus. 157. "Writ not granted to control questions of pleading. 158. Discretion of court over executions not subject to mandamus. 159. Questions of costs not subject to mandamus. 160. Setting aside defaults and granting new trials not controlled by mandamus. 161. Former doctrine in New York. 162. Control of courts over referees not subject to mandamus. 163. Writ not granted to control questions of practice. 164. Not granted to compel court to accept particular bond or sureties. 165. Not granted to interfere with courts under state insolvent laws. (132) CHAP. III.] TO IBTFEEIOE COURTS. 123 166. Does not lie to control discretion of courts as to granting or dissolving injunctions. 167. Not granted to compel judgment on verdict, or to receive evidence. 168. Does not lie as to granting continuance, or stay of proceedings. 169. Discretion of court in setting asid.e ca. aa.; sufficiency of bail. 170. Further illustrations of the general rule. 171. Discretion of probate courts not subject to mandamus. 172. Change of venue ; new parties to a cause; reference to master in chancery. 173. Dismissal of causes not controlled by mandamus. 174. Granting licenses; opening roads. 175. Nominating officers; administering oath of office. 176. The controlling principle stated. 177. Existence of other remedy a bar to mandamus. 178. The rule of ancient origin ; illustrations. 179. Statutory remedy a bar ; appeals from subordinate courts. 180. Tests to be applied ; writ not granted to remove cause from docket. 181. Further illustrations of the general rule, 183. Eefusal of court to award costs. 183; Changes of venue. 184. Clerks of court. 185. Application of the principle to appellate courts. 186. Departure from the general rule in Alabama ; illustrations. 187. Similar departure in Michigan. 188. Mandamus not allowed to usurp functions of writ of error or appeal. 189. Kule not affected by error in decision of lower court; nor by hardship resulting therefrom. 190. Nor by absence of remedy by error or appeal. 191. The doctrine applied to dismissing appeals. 193. Applied to questions of evidence and pleading. 193. Applied to questions of costs. 194. Payment of subscription to railway. 195. Mandamus does not lie to compel granting of mandamus. 196. Not granted where unavailing. 197. Daty of judge must be in official capacity. 198. Relator must establish a clear right. , § 147. The jurisdiction by the writ of mandaimas over inferior judicial tribunals, though closely guarded and jeal- ously exercised by the courts, is too well established to admit of controversy, and forms one of the most salutary features of the general jurisdiction of the courts by mandamus. It is most frequently invoked for the purpose of setting inferior courts in motion, and to compel them to act where action has been either refused or delayed. The earlier remedy, adopted 124 MANDAMUS. [PAKT I. in England, for the refusal or neglen+ of justice on the part of the courts, was by the wi-it of 'procedendo ad judiciwm,. This was an original writ, issuing out of chancery, to the judges of any subordinate court, commanding them in the king's name to proceed to judgment, but without specifying any particular judgment. If this writ were disobeyed, or if the judges to whom it was addressed still neglected or refused to act, .they were liable to pimishment for contempt, by an attachment returnable either in the kings bench or common pleas. 1 § 148. The use of the writ of prooedendo for the purpose of quickening the action of inferior courts, and preventing a delay of justice, has in modern times, been superseded by the writ of mandamiis. And the latter is now regarded as the proper if not the only remedy, by which the sovereign power can compel the performance of ofiicial duty by inferior magis- trates and officers of the law.^ In England, it being the province of the court of kings bench to superintend all infe- rior tribunals, and to enforce the proper exercise of their powers, mandamus will lie from that court to the judges of any inferior court, commanding and requiring them to do jus- tice according to the powers of their office, whenever they have delayed acting.^ But it is to be borne in mind, M'ith reference to the jurisdiction over the action of inferior courts, that it is exercised, not for the piirpose of conferring power upon those courts, since this is beyond its scope and province, but only to compel the use of powers already existing. Hence the writ will never be awarded to compel a court to do that which, in the absence of such .mandate, it would be powerless to do.* § 149. The province of the writ, in as far as it affects the action of inferior courts, is not to be extended for the purpose of compelling the rendition of a particular judgment, in accordance with the views of the higher court. And while it is proper to compel the inferior tribunal to proceed and ' 3 Bl. Com. 109. ^ State u. Judge of Orphan's Court, ' Waldron v. Lee, 5 Pick. 323. 15 Ala. 740. » 8 Bl. Com. 111. CHAP. IIlJ TO INFERIOR COURTS. 125 render some judgment, in a case where it has refused or neg- lected to act, yet the writ will not prescribe the party for whom judgment shall be rendered, since this would be, in effect, to introduce the supervisory power of the appellate court, into a cause yet depending in the inferior tribunal, and thus prematurely to decide the case, and to compel the inferior court to give judgment, not in accordance with its own views, but in conformity with the opinion of the higher tribunal. * Such a procedure might justly be regarded as subversive of our whole system of jurisprudence. ^ § 150. While, as we shall hereafter see, the authorities hold, almost without exception, that in aU matters resting within the jurisdiction of an inferior court, and upon which it has acted in a judicial capacity, mandamus will not lie to review its proceedings, or to revise its rulings, yet where the matters in question are clearly within the powers of the infe- rior court, but it refuses to exercise its jurisdiction, or to entertain the proceedings, the writ will lie to compel the court to act.* Thus, where it is made the duty of an inferior court to entertain and hear appeals from justices of the peace, man- damus will lie for a refusal to perform this duty.* But the writ win not be granted to compel the judge of an inferior court to re-investigate facts and circumstances of a case which he has previously fully examined and investigated, since he has the right to rely upon his previous decision, based upon a full investigation of the facts. ^ § 151. A distinction is recognized between cases where it is sought by mandamus to control the decision of the inferior court upon the merits of a cause, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law or of practice prelim- inary to the whole case. And while, as we shall see, the deci- sion of such court upon the merits of the controversy, will not be controlled by mandamus, yet if it has erroneously ' Life & Fire Insurance Co. v. Ad- parte Henderson, 6 Fla. 379. ams, 9 Pet. 573. * Ex parte Henderson, supra. 2 Id. ' Ex pa/rte Campbell, 20 Ala. 89. ' Beguhl «. Swan, 39 Cal. 411 ; Ex 126 MANDAMUS. [PAET I. deci'ded some question of law or of prg-ctice presepited ^.s a preliminary objection, and upon such erroneous construction, has refused to go into the merits of the c^se, mandamus wiU lie to compel it to proceed. ^ For example, where, in a statu- tory proceeding instituted to test the election of an ofi&cer, the court below refuses to try the case upon its merits, and quashes the proceedings, upon the ground th^t the contestant has not given the notice required by statt^te, if such court has erred in its construction of the statute as to the notice required, the writ will be granted to compel it to reinstate the case and proceed to a hearing. ^ If, however, the point raised by the preliminary question be purely a matter of fact, the decision of the inferior tribunal is binding and conclusive, and will not be controlled by mandamus.* § 152. But the most important distinction to be observed in administering relief against inferior courts, is, that while they may be compelled by mandamus to act, where they have refused to prqceed, the writ being regarded as the most appro- priate remedy to set them in motion, yet it will in no case command the inferiqr tribxmal how to act, nor dictate any spe- cific judgment which it shall render. In other words, while mandamus is regarded as the appropriate remedy to set the machinery of the courts in motion, it will not control their motion, or direct the performance of any particular judicial act.* And it is this peculiar feature of the writ, when applied ' Queen v. Justices of Kesteven, 3 parte Chamberlain, 4 Cow. 49 ; Mil- Ad. & E. N. S. 810; Castello v. St. tenberger v. St. Louis Co. Court, 50 Louis Circuit Court, 28 Mo. 259. Mo. 172 ; People ». Bussell, 46 Barb. ' Castello «. St. Louis Circuit 27 ; Dixon v. Judge of Second Cir- Court, 28 Mo. 259. cult, 4 Mo. 286 ; • Gunn's Adm'r. v. ' Queen v. Justices of Kesteven, 3 County of Pulaski, 3 Ark. 437. But Ad. & E. N. S. 810. see, contra, People ii. Pearson, 1 * Queen v. Justices of Middlesex, Scam. 458, where the writ was 9 Ad. & B. 540 ; Koberts v. Hols- granted to direct a judge to vacate worth, 5 Halst. 57 ; People v. Judge an order fqr a continuance, and to of Wayne Co. Court, 1 Mich. 359 ; grant a motion which he had disal- Sturgis V. Joy, 3 El. & Bl. 739 ; King lowed, in a case which was deemed I). Hewes, 3 Ad. j& B. 725 ; King " too clear to admit of doubt." But V. Justices of SuflFolk, 5 Nev. & the correctness of the ruling, even Man. 139; Anon. 2 Halst. 160; JEx in such a case, insiy )vell ]3e doubted. CHAP. II.] TO INFEEIOK CQUETS. 127 as a corrective of judicial inaction, which distinguishes it from cases where it is addressed to officers, especially of a ministe- rial nature, to compel the performance of their official duties, since in the latter class of cases, the writ points out the par- ticular act which is to be performed, i And the distiiiction prevails, regardless of whether the party aggrieved has or has not another adequate remedy for the grievance sustained. ^ § 153. In conformity with the distinction noticed in the foregoing section, it is held that mandamus will not lie to change a verdict, or to alter the minutes of a verdict so tha.t they may correspond with the fact, since the propriety of the mode of entering the verdict is properly a matter for the con- sideration of the inferior court, and the granting of the writ in such case would be an unwarrantable interference with the exercise of the functions properly pertaining to such court.-' N"or will the writ lie to compel an inferior court to set aside a verdict and to grant a new trial, this being a matter peculiarly within its own cognizance.* § 154. So the writ will be refused where its purpose is to compel a court to alter its record, so that it may correspond with the state of facts disclosed by affidavits filed with and made a part of the application for rnan damns. ^ l^or will it be granted to compel the court to receive a particular plea offered by a party to a cause pending therein, even though the court may have erred in rejecting such plea.« So it will be refused where sought to compel the court to reinstate an appeal from a justice of the peace, which it has dismissed.' So, too, it will not lie to compel the court to give a particular construction to a statute, in a matter properly within its juris- diction.* And in all such cases the writ is refused, regardless ■ Roberts ». Holsworth, 5 Halst. 57. cial Circuit, 4 Mo. 286. And spe " People «. Judge of Wayne Co. Kiner v. Justices of Suffolk, 5 Nev. & Court, 1 Mich. 359. Man. 139. • King V. Hewes, 8 Ad. & E. 735 ; • Anon. 2 Halst. 160. King V. Justices of Suffolk, 5 Nev. ' People n. Judge of Wayne Co. & Man. 189. Court, 1 Mich. 359. • Squier v. Gale, 1 Halst. 157. « Sturgis v. Joy, 2 El. & Bl. 739. • Dixon V. Judge of Second Judi- 128 MANDAMUS. [PAET I. of whether the inferior tribunal has decided properly or improperly in the first instance. ^ § 155. In conformity with the distinction under considera- tion, it has also been held that mandamus will not lie to compel the granting of a writ of habeas corpus, the power to hear and determine applications for this writ being purely a judicial power. 2 Nor will it lie to compel an inferior court to punish a witness for contempt in non-attendance, since every court must itself be the sole judge of whether a contempt has been committed against its process.' So where an inferior court, of limited jurisdiction, is vested by law with the power of hearing and correcting errors in the assessment of taxes, its action will not be controlled by mandamus, since the hear- ing and determination of applications for the correction of assessments is a judicial and not a ministerial act.* § 156. The fundamental principle underlying the entire jurisdiction by mandamus over the action of inferior courts, is, that in all matters resting within the discretion of the inferior tribunal, mandamus will not lie to control or interfere with the exercise of such discretion. And while the jurisdic- tion of superior common law courts over courts of inferior powers, by the writ of mandamus, is well established, it is exercised with the utmost caution, lest there should be any improper interference with the exercise of the judicial powers of the court below, and it will only be used in such manner as to leave the inferior tribunal untrammeled in the exercise of the discretionary or judicial powers with which it is properly vested by law. And the rule may be regarded as established by an overwhelming current of authority, both English and American, that mandamxis will not lie to control the exercise of the discretion of inferior courts, and where such courts have acted judicially upon a matter properly presented to them, their decision can not be altered or controlled by mandamus 'Anon, supra; Sturges v. Joy, 'Ex parte Chamberlain, 4 Co-w. tvpra. 49. ' People V. Russell, 46 Barb. 27. ' Miltenberger v. St. Louis Co. Court, 50 Mo. 173. CHAP, m.J TO INPEEIOE COURTS. 129 from a superior tribunal, i And it is important to observe tliat the rule applies witli equal force, regardless of the pro- priety or impropriety of the action of the inferior court. It is suificient that the discretion has been exercised, and whether rightly or wrongly exercised, it can not be questioned by mandamus.^ § 157. Having, in the preceding section, considered the general rule denying the writ in cases where it is invoked to control the judgment or discretion of an inferior court, it may not be inappropriate to consider, in this connection, some of the applications of the rule, as well as a few apparent exceptions which have been recognized. And it may be said, generally, that the discretion of inferior courts over questions of plead- ing arising in the course of their proceedings will not be con- trolled by mandamus. 8 Thus, where a court has set aside ' Judges of Oneida Common Pleas v. The People, 18 "Wend. 79, overrul- ing People V. Superior Court of N. T. 5 Wend. Hi; JEx parte Bacon and Lyon, 6 Cow. 393 ; Ex parte Benson, 7 Cow. 363; Ex pa/rte Baily, 2 Cow. 479 ; Ex parte Nelson, 1 Cow. 417 ; People V. New York Common Pleas, 19 Wend. 118 ; People v. Judges of Oneida Common Pleas, 31 Wend. 30, overruling People «. Niagara Common Pleas, 13 Wend. 346 ; Peo- ple V. Superior Court of New York, 19 Wend. 68; Ex parte Bassett, 3 Cow. 458 ; Gilbert v. Judges of Ni- agara Co. 3 Cow. 59 ; Ex pa/rte John- son, 3 Cow. 371 ; People ®. Superior Court of New York, 19 Wend. 701 ; Ex parte Davenport, 6 Pet. 661; United States «. Lawrence, 3 Dall. 42 ; Ex parte Poultney, 13 Pet. 473 ; Postmaster General v. Trigg, 11 Pet. 173 ; Ex parte Roberts, 6 Pet. 316 ; Ej: pa/rte Taylor, 14 How. 3; Ex parte Many, 14 How. 24; Ex pa/rte City Council of Montgomery, 24 Ala, 98; Ex pa/rte Henry, 24 Ala. 638;' Gunn's Adm'r. v. County of Pulaski, 9 3 Ark. 427; Ex pa/rte Hays, 26 Ark. 510; McMillen v. Smith, lb. 613; Goheen v. Myers, 18 B. Mon. 423 ; Louisiana o. Judge of Parish Court, 15 La. 521 ; People v. Sexton, 37 Cal. 533; Barksdale v. Cobb, 16 Geo. 13; Ex parte Banks, 28 Ala. 28; People V. Williams, 55 111. 178 ; People v. Judge of Probate, 16 Mich. 204; Ex parte Johnson, 25 Ark. 614; King i>. Justices of Cambridgeshire, 1 Dow. & Ry. 325 ; Queen v. Harland, 8 Ad. & E. 826; Queen ». Old Hall, 10 Ad. & E. 248. But see, contra. People v. Columbia Common Pleas, 1 Wend. 297 ; Blunt v. Greenwood, 1 Cow. 15. " Queen v. Harland, 8 Ad. &E. 836 ; State «. Watts, 8 La. 76. ° Ex parte Davenport, 6 Pet. 661 ; Ex pa/rte Poultney, 12 Pet. 472. But see, contra, People b. Superior Court of New York, 18 Wend. 675, where it is held that if the inferior court has plainly erred and exceeded its authority in allowing an amend- ment, which was not within its legal discretion, the writ will lie to compel such court to vacate the 130 MANDAMUS. [PAET I. certain pleas ofiered in a suit pending therein, and has ordered them to be stricken out as a nullity, it will not be compelled to restore the pleas and to vacate its order. ^ So the discretion of courts of equity as to regulating the time and manner of appearing and answering in chancery causes, will not ordi- narily be interfered with by mandamus, such courts being at liberty to enlarge and extend the time for appearance and answer, whenever the purposes of justice require this course. ^ And the order of a subordinate court granting a feigned issue, to test the validity of a judgment, is not subject to review on mandamus. ^ § 158. Mandamus wiU not lie to compel a court to vacate a rule setting aside an execution, such a case being regarded as inappropriate for the exercise of the jurisdiction.* Nor will a rule be granted requiring an inferior court to show cause why the writ should not be granted, to compel such court to issue an execution which it has refused, where the record discloses that the court had refused the execution after " mature deliberation," and there is nothing in the record dis- closing a, prima facie case of mistake, misconduct, or omission of duty on the part of the court. ^ § 159. The general subject of costs and questions connected with the taxation of costs, being largely matters of judicial discretion, the courts are not inclined to interfere with the exercise of this discretion in inferior tribunals, and mandamus will not lie to modify or control their rulings as to costs. ^ And the rule is not limited to courts proper, but is extended to subordinate tribunals of a quasi judicial nature as well. And where such a tribunal, upon a proper application, has refused costs in a matter pending before it, the writ will not order. And see People o. New York ' Postmaster General ». Trigg, 11 Common Pleas, 18 Wend. 534; Bz Pet. 173. porie Lawrence, 34 Ala. 446. « Ex parte Nelson, 1 Cow. 417 ; ■ Ex pa/rte Davenport, 6 Pet. 661. People v. New York Common Pleas, ' Ex pa/rte Poultney, 13 Pet. 472. 19 Wend. 113 ; Jansen t. Davison, 3 ' People V. Ulster Common Pleas, Johns. Cas. 72; Peralta «. Adams, 2 18 Wend. 628. Cal. 594; Ex pa/rte Many, 14 How * Vandeveer «. Conover, 1 Har. (N. 24 ; State «. Judge of Kenosha Cir J.) 271. cuit Court, 3 Wis. 809. CHAP. III.J TO INFERIOR COURTS. 131 lie to compel it to allow the costs. * So where the amount of costs was left blank in the record of a judgment, and upon the case being afBrmed on error, and sent back to the court below, it refused a motion to amend the record by inserting the amount of taxed costs, it was held that mandamus would not lie, after such refusal, to compel the allowance of the costs.* § 160. The control of courts of general common law juris- diction over the setting aside of defaults and the granting of new trials, will not be interfered with by mandamus.* And in this respect an application for the writ to compel the inferior court to set aside a default and inquest is not distin- guishable, in principle, from applications for new trials, and these are always considered as resting in the sound discretion of the court to which they are addressed, and not subject to review by mandamus.* And the granting or refusing of a rule to set aside a default, not being governed by fixed and imperative rules, but being rather a matter of sound judicial discretion, it will not be interfered with by mandamus.^ Ifor is the rule altered or varied by the fact that the court below may have decided erroneously in rejecting the application in the first instance. Thus the writ has been refused, where it was sought to compel the granting of a new trial on the ground that the court had erred in its instructions to the jury, since such questions were properly within the discretion of the ' Chase v. Blackstone Canal Co. sibility of afHdavits of jurors, upon 10 Pick. 344; Morse, Petitioner, 18 a motion for a new trial, is not a Pick. 443. question of judicial discretion, but ' Sx pa/rte'M.any,14:'Ex>w.2i. But purely one of law, which may be the writ will lie from an appellate investigated by the superior court to an inferior court, to compel it to upon an application for a man- make an order for costs In eon- damns. The doctrine of this case, formity with the decision of the however, may be regarded as sub- appellate court previously rendered, stantially overruled by the opinion Jared v. Hill, 1 Blackf. 155. of the court in Judges of Oneida ' £Jx parte Roberts, 6 Pet. 316 ; Bx Common Pleas v. The People, 18 pa/rte Bacon and Lyou, 6 Cow. 393; Wend. 79. Ex pa/rte Benson, 7 Cow. 363; Mx * Mx parte Roberts, 6 Pet. 216. parte Baily, 3 Cow. 479 ; State v. ' Ex parte Bacon and Lyon, 6 Watts, 8 La. 76. But see People v. Cow. 393; Ex pa/rte Benson, 7 Cow Columbia Common Pleas, 1 Wend. 363. 297, where it is held that the admis- 132 MANDAMUS. [PAKT I. inferior court, and the remedy should be sought by appeal or writ of error. 1 Any other rule must necessarily result in an endless conflict of opinion upon questions, which, from their very nature, should be finally adjudicated by the inferior court.* § 161. The rule as above stated, denying the writ where it is sought to compel the granting of a new trial, has not been establislied without some conflict of authority. And it was formerly held by the courts of New York, that if the inferior court, in passing upon the application for a new trial, should deny to a party the benefit of an established rule of practice, not dependent at all upon circumstances, the superior court might interfere. Thus, where a rule had been granted for a new trial, upon the ground of newly discovered evidence, and upon the application for a mandamus to vacate the rule, it appeared that the plaintiffs were guilty of gross negligence in not procuring the evidence upon the former trial, and that it was, at the most, merely cumulative evidence, and that estab- lished rules of practice had thus been violated, it was held a proper case for mandamus.^ This doctrine, however, is plainly inconsistent with the whole current of authority, and has been expressly overruled in New York.* ' Ex pa/rte Baily, 2 Cow. 479 ; ment of rights undefined by law. State V. Watts, 8 La. 76. In Bx This would result in an endless poA-te Baily, 2 Cow. 479, the court conflict of opinion upon questions say : " As to the remedy by man- which must, from their very nature, damua, it may be proper to remark, be finally determined by the court that though in extreme cases we below, because they can not be might interfere, and control the reached by the rules of law; and court below upon questions of fact although we may think the inferior presented in the form of a motion jurisdiction has erred, yet we will for a new trial, yet it is a remedy not interfere. It is true that ex- which should be used very spar- treme cases may be supposed, ingly. A contrary course would which would form an exception to draw before this court, whenever this doctrine." one of the parties should be dis- ' Id. satisfied with the decision of the ' People «. Superior Court of New common pleas, an examination of York, 5 Wend. 114. And see Same those questions which address «. Same, 10 Wend. 285. themselves merely to the discretion ' Judges of Oneida Common Pleas of that court. We should be per- ». The People, 18 Wend. 79. petually appealed to for the adjust OHAP. III.] TO IlfFEEIOE COUETS. 133 § 162. Upon principles similar to those discussed in the preceding sections, the writ will be reftised where it is sought for the purpose of regulating or interfering with the control of courts over their own referees, where the practice prevails of refering causes for hearing and investigation. And the writ will not lie to compel the court to vacate an order setting aside a report of referees, even though the court to which the application is made is satisfied that the infei'ior tribunal erred in setting aside the report. ^ Thus, where the court below had set aside the report on the ground that it was based upon the testimony of a witness who was not credible, mandamus to vacate the rule was refused, notwithstanding the inferior court had decided erroneously. ^ Nor will the writ be granted in the class of cases under consideration because the court below has mistaken the weight of evidence, since mandamus deals only with questions of law, and it is not its province to deter- mine disputed questions of fact.* ' People V. Judges of Oneida Com- mon Pleas, 21 Wend. 20, overruling People «. Niagara Common Pleas, 13 Wend. 246; £!x pwrte Bassett, 3 Cow. 458. ' Ex parte Bassett, 2 Cow. 458. ' People V. Superior Court of N. T. 19 Wend. 68. The province of the writ of mandamus, as far as re- lates to the control by a superior over the action of an inferior court is concerned, is clearly defined in the opinion of the court, delivered by Mr. Justice CowBN, as follows: "On motion for a mandamus, if there appears to be a fair, indeed I may say a plausible opening for an opposite conclusion, there is no rule of law upon which I can say to the court below that they shall not adopt it. They have in general, a discretion to grant or withhold a new trial or a re-hearing before ref- erees ; and as a general rule, there- fore,, we can not control them by mandamus. That they have acted against a strong balance of testi- mony is not enough. The case should be conclusive against them in point of fact, and come to us upon a mere point of law. By what rule of law am I to estimate the force or weight of circumstances falling on the mind? Thelawknowa no standard in such cases beyond the mind which it has selected to weigh them. Ex parte Morgan, 2 Chitty's R. 250; Rex «. The Justices of Worcestershire, 1 Chitty's R. 649. It orders the court to set aside a re- port when it is against the weight of evidence, and confides the issue whether it be so to the discretion of the judges. It is not, if I may be allowed to say so, a case of specific gravity, as if it presented evidence which the law would hold conclu- sive, or pronounce to be prima fcbeie sufiicient ; but a case in which men must proceed without scales to aflSx 134 MANDAMUS. [pART I. § 163. We liave already seen that the discretion of inferior courts over questions of pleading arising therein, is not subject to control by mandamus. The same rule applies as to mere questions of practice, and while it has been held that errors in points of practice may be corrected by mandamus,' yet the later and better considered doctrine is, that the writ will not lie to interfere with the discretion of an inferior court upon mere points of practice. ^ § 164. In further illustration of the rule that mandamus will not lie to control the exercise of judicial discretion, the writ will be refused where it is sought to compel a court or judge to accept of a particular bond which has been rejected for insufficiency. And where the court has passed upon and adjudicated the question of the sufficiency of the bond, in a judicial proceeding, mandamus will not lie.* So where the duty of judging of the sufficiency of sureties upon an official bond, is, by law, devolved upon an inferior court, and it has passed upon the question and decided that the sureties were insufficient, its decision is not subject to review by mandamus.* § 165. The writ will not lie to compel a court to hear the a weight by the exercise of their refused a new trial, on a case con- reason. A mandamus can not direct taining the facts disclosed by these the line of thought. Where the law affidavits; it is abundantly settled leaves that open it is never done, that in such case a mandamus shall Jurors weighing circumstances by not go because we may think the which to measure vindictive dam- court has mistaken the weight of ages, or even on trying issues of life, evidence. Mx parte Baily, 2 Cowen, are familiar instances. You can 479,483; Bxpwrte Morgan, 3 Chit- not in mechanics make two clocks ty's R. 250. The same rule applies go alike. With what propriety where they have set aside the report then shall the law go into the region of referees." of metaphysics and demand that ' Blunt ». Greenwood, 1 Cow. 15, men shall agree in certain pre- where the writ was granted to com- scribed conclusions from premises pel the court to vacate an order set- demanding the exercise of human ting aside a,fi.fa. judgment? It allows an appeal " .^k ^arte Coster, 7 Cow. 533. See and re-hearing by other men in cer- also Peoples. Judges of Chautauqua tain cases; but a mandamus deals Common Pleas, 1 Wend. 73. in matter of law, as exclusively as ' State «. Bowen, 6 Ala. 511. a writ of error or certiorari. Sup- ■■ Thomason «. The Justices, 8 pose the court below had granted or Humph. 233. CHAP. III. J TO INFEEIOB COURTS. 1^5 application of an insolvent debtor for his discharge under the laws of the state, where the court, upon due application, has decided that he was not entitled to such hearing. ^ And upon similar principles the relief will be refused, where it is invoked to compel commissioners of bankruptcy under a state law, to give the bankrupt a certificate of conformity, when it is shown by the return of the commissioners, that they had reason to doubt that the disclosure made by the bankrupt was a true disclosure of all his estate and effects.* And this is true, even though the court to which the application for the writ is addressed, should differ in opinion from the commissioners upon the question of the sufficiency of the bankrupt's dis- closures.* § 166. The aid of mandamus has sometimes been invoked to control the action of inferior courts of chancery jurisdiction over the subject of injunctions, and to compel them to grant or dissolve the writ, in accordance with the views of the superior tribimal as to its propriety or impropriety. "While there are cases where the courts, adopting the theory that the granting or withholding of an injunction is the exercise of a mere ministerial discretion, have interfered by mandamus to compel the granting of the writ where it has been improp- erly refused,* yet these cases have been overruled by later and better cousidered decisions, and the contrary doctrine has been established. And the rule may now be regarded as clearly settled, both upon principle and authority, that the granting or dissolving of injunctions, is a matter of purely judicial dis- cretion, and when this discretion has once been exercised, and the inferior court has refused to grant an injunction, or, if already granted, has refused to dissolve it, mandamus will not ' Thomas v. His Creditors, 1 Har. injury was likely to result without '(N. J.) 373. the relief, and where the relator « Respublica «. Clarkson, 1 Yeates, showed no injury sustained by him- (3nd edition,) 4'6. self different from that common to ' Id. the whole community, the writ was ■* Ex pwrte Conway, 4 Ark. 303 ; not granted. Jones v. City of Little ^a!;p«r<«Pile,9Ark. 336. But, even Rock, 35 Ark. 301. But the doc- in Arkansas, the mandamus was al- trine of these cases has been entirely lowed only in cases where personal overruled. See note infra. 136 MANDAMUS. [PAKT lie to control such decision, i Thus, the writ will not be granted to compel the dissolution of an injunction by an inferior court, even though it is alleged that the defendant in the injunction suit has, by his answer, fully denied all the equities of the injunction bill, and that he is without the right of appeal from the decision of the court refusing the dissolu- tion, since in all such cases the decision of the inferior court is final and conclusive. ^ But it has been held that mandamus ' Expa/H6 Hays, 36 Ark. 510: Mc- Millen «. Smith, lb. 613 ; Ex parte City Council of Montgomery, 24 Ala. 98. ' Ex parte City Council of Mont- gomery, 34 Ala. 98. Tlie grounds upon whicli the writ is denied in such cases, are well laid down in the opinion of the court, CHrLTON, C. J., as follows: "The supreme court of this state has a general superintendence and control over inferior tribunals, as prescribed by the constitution of the state. Art. 5, § 3. This control and superin- tendence must not, however, be ex- ercised capriciously or arbitrarily, but according to the established forms and usages which obtain in the administration of justice. Should this court interpose its juris- diction to control the inferior courts in the exercise of their discretion, either in the making and continu- ing of interlocutory orders, or in re- fusing to make them, in the pro- gress of causes, it would be difficult to calculate the delay, embarrass- ment and inconvenience which would .result, not only to suitors, but to the courts themselves. If every order of continuance, every refusal to grant new trials, and the numerous interlocutory orders which are made in causes, both at law and in equity, from their in- ception to their final termination, could each be made distinct subject matter for an appeal to this court, at the hazard of a heavy bill of costs, this court would become an intolerable grievance, and there would be no end to the litigation to which a cause requiring a great number of such orders might be subjected. The granting or contin- uing of injunctions by the courts of equity, is a matter within the sound discretion of those courts, to be ex- ercised with reference to the pecul- iar circumstances of each case. Es- pecially is this so with respect to their jurisdiction over the subject of nuisances. Aside from the stat- ute which allowed an appeal, in cases where the chancery court dis-. solved an injunction, to the next term of this court, no such appeal would lie ; and this court has uni- formly refused to interfere with the exercise of the discretion vested in the primaiy courts, in the making of interlocutory orders, the granting or refusal of new trials, and the like. In the case before us, we are asked to control the chancellor, in requiring him to dissolve an injunc- tion, which, in his opinion, under all the circumstances of the case, ought not to be dissolved. Without intimating any opinion as to the correctness of his conclusion, con- CHAP. III.] TO INFERIOR COURTS. 137 will lie to compel a court to issue an attachment for violation of an injunction, the remedy by appeal being considered inad- equate in such case.i • § 167. The writ will not be granted to compel a court to enter judgment upon one of several verdicts found by a jury, where it has already passed upon the question, and, in the exercise of its discretion, has refused to enter judgment. ^ So it will be refused where the purpose of the application is to compel the court to enter judgment in a cause in which it has seen fit to grant a new trial, since the question of the propriety or impropriety of granting a new trial is a question which can not be entertained upon proceedings in mandamus.* Nor will the writ be allowed to compel an inferior court to receive certain evidence in a cause pending therein, the admissibility of the evidence being a question addressed wholly to the judgment of the court itself.* § 168. The discretion of inferior courts in such matters as the granting of continuances, or the stay of proceedings, will not be controlled by mandamus.^ And where a court has ordered a stay of proceedings under a levy, until the deter- mination of a suit in replevin concerning the same property upon which the execution has been levied, the order being one which the court was fully competent to make, it will not be compelled by mandamus to vacate such order." § 169. As a further illustration of the rule that the writ is not granted to control or interfere with the discretion of inferior courts, it is held that where, on setting aside a writ of ca. sa., the court has imposed a condition that defendant should stipulate not to bring an action of false imprisonment sidered in connection with the facts, Mining Co. 9 Cal. 18. we ate satisfied that the case made 'Sx parte Henry, 24 Ala. 638. hy the. petitioner presents no ground " State v. Watts, 8 La. 76. for our interference. Mandamus ■* King v. Justices of Camhridge- lies to compel the inferior courts to shire, 1 Dow. & By. 325. exercise a discretion, but not to con- 'Louisiana v. Judge of Parish trol that discretion." Court, 15 La. 521 ; People v. Superior > Merced Mining Co. ■». Fremont, Court of New York, 19 Wend. 701. 7 Cal. 131 ; Ortman v. Dixon, 9 Cal. ' People v. Superior Court of New 23. But see Fremont v. Merced York, 19 Wend. 701. 138 MANDAMUS. [PAET I. against the plaintiff, mandamus will not lie to compel the court to strike out this condition, it being purely a question addressed to the discretion of the courts '■ So, where it is pro- vided by statute that the sufficiency of an affidavit to hold to bail, and the amount of bail to be given, are to be decided by the court, and the court has already passed upon the question and held the affidavit sufficient, the writ will not lie, since its effect in such case would be to control the judgment of an inferior court while acting within the scope of its authority. ^ § 170. Mandamus will not lie to compel the judges of an inferior court to proceed against justices of the peace for mal- feasance in office, where, under the constitution and laws of the state, the judges are vested with discretionary powers as to instituting such proceedings, and, in the exercise of their dis- cretion, have refused to proceed.* Nor will it lie to compel a court to discharge bail,* or to vacate an order suppressing a deposition. ^ § 171. The discretion of courts of probate powers, over matters properly pertaining to their peculiar jurisdiction, properly falls within the general rule under discussion, and will not ordinarily be controlled by the writ of mandamus.^ Thus, the refusal to grant letters of administration, pendente Ute, is regarded as a legitimate exercise of judicial discretion, and being a decision from which an appeal will lie, it consti- tutes no foundation for proceedings in mandamus. ' And the writ will be refused where it is sought for the purpose of com- pelling a probate judge to extend the statutory period allowed creditors for proving their claims against the estates of dece- dents, it being regarded as a question properly resting in the discretion of the probate judge. ^ § 172. The granting or refusing of applications for a change ' Gilbert d. Judges of Niagara Mich. 204 ; Barksdale v. Cobb, 16 Co. 3 Cow. 59. Geo. 13; State ». Mitcliell, 3 Brev. " Ex parte Taylor, 14 How. 3. (2nd edition,) 571. But see King v. ' Ex parte Johnson, 3 Cow. 371. Bettesworth, 7 Mod. Rep. 319. * Ex parte Small, 25 Ala. 74. ' Barksdale v. Cobb, 16 Geo. 13. ' Ex parte Elston, 35 Ala. 72. « People ». Judge of Probate, 16 » People D. Judge of Probate, 16 Mich. 304. CHAP. III.] TO INFERIOR COURTS. 139 of venue may be appropriately referred to the same general rule, and the discretion of the courts over applications of this nature, is not subject to control by mandamus, i And where the legislature has passed a special act, directing a change of venue in a criminal case, which the court has refused to grant on the ground of the unconstitutionality of the act, mandamus will not lie to compel the change of venue. ^ So, too, with interlocutory orders allowing new parties to come into a cause pending; and an order made before judgment is finally an- nounced in 'the case, allowing parties not originally appearing in the case to come in, is regarded as the decision of a judicial question, and the action of the court in granting such order is not subject to review by mandamus. ^ Upon similar principles the writ will be refused where the object of the application is to compel a court to refer a case to a particular master in chancery to take proofs therein, the reference being purely a question of discretion with the court.* § 173. Questions connected with the dismissal of actions, or with the refusal to dismiss, either for want of jurisdiction, or for other causes, sometimes afford occasion for invoking the aid of the extraordinary powers of the superior courts. The tendency of the courts is to regard such questions as proper matters of judicial discretion, and to withhold relief by man- damus in conformity with the general rule under discussion. ^ And the writ will not lie to compel an inferior court to reverse its action in refusing to dismiss a bill of complaint, since, in passing upon such dismissal, the court must necessarily have ' State D.Washburn, 33 Wis. 99 ; Ex compel the court to make the order pwrte Banks, 38 Ala. 38 ; Flagley v. changing the place of trial to the Hubbard, 33 Cal. 34; People B. Sex- county of defendant's residence, ton, 34 Cal. 78. But see, contra. State This doctrine, however, was over- 1). McArthur, 13 Wis. 407, where it ruled in State v. Washburn, 33 Wis. was held, that the statute regulating 99, the proper remedy for the party changes of venue, gave a defendant aggrieved being by appeal, an unqualified and absolute right ' Smith t. Judge of Twelfth Dis- to a trial in the county where he trict, 17 Cal. 547. resided, and that no discretion was ' People v. Sexton, 37 Cal. 532. left to the court in granting the ap- * People v. Williams, 55 111. 178. plication for such change, and that ' Goheen ». Myers, 18 B. Men, mandamus would therefore lie to 423 ; Ex parte Johnson, 25 Ark. 614 140 MANDAMUS. [PAET I. exercised its judicial functions, thus placing tlie question at issue beyond the control of a mandamus. ^ And the dismissal by an inferior court of an appeal from a justice of the peace for want of jurisdiction, being a judicial determination of a question incident to the proceedings and properly raised therein, and the court, in passing upon the question, having acted in a judicial and not in a ministerial capacity, man- dam.us will not lie to compel the reinstating of the appeal. ^ § 174:. It frequently happens that inferior courts of limited jurisdiction are vested by law with control over special sub- jects, such as the granting of licenses, or the opening of roads, which, though not strictly matters of judicial cognizance, yet call for the exercise of such a degree of judgment and dis- cretion, as to bring them within the general principles already discussed. Thus, where the county courts in the respective counties of a state, are clothed with discretionary powers in the matter of granting licenses for keeping houses of enter- ' tainment, and in the exercise of their powers they have refused an application for a license, their decision wiU not be revised by mandamus.* So where an inferior court, acting within the scope of its authority, has refused an application for the open- ing of a highway, upon a full hearing of the case, its judg- ment is regarded as binding and conclusive upon the question, until reversed in some proper method. The writ will, there- fore, be refused to compel the opening of the road in such a case, since its effect would be to compel the court to reverse its own decision, and to enter another judgment, contrary to its own views of the law and right of the case.* § 175. Somewhat analogous to the cases considered in the previous section, are those where inferior courts are invested with the power of making nominations to certain offices, or of administering oaths of office, and the superior courts are ' J?a! parte Johnson, 35 Ark. 614. 'Ex parte Teager, 11 Grat. 655. ^ Goheen v. Myers, 18 B. Mon. And see Sights v. Yarnalls, 12 Grat. 423 ; People v. Weston, 28 Gal. 639 ; 292. People V. Judges of Dutchess Com- * Jones v. Justices of StafiFoi-d, 1 men Pleas, 20 Wend. 658; State v. Leigh, 584. Wright, 4 Nev. 119. OHAP. III.] TO INFEEIOE COTTETS. 141 inclined to withhold their interference to correct the decisions of inferior tribunals upon such questions.' And where, by the laws of a state, the justices of a county court are entrusted with the power of nominating to the governor of the state certain persons, from whom the sheriff of the county is to be selected and appointed, the justices are not subject, in the exercise of their discretion, to be controlled by mandamus, and the writ will not issue to compel them to nominate a particular person.^ So, where it was sought to compel such justices to administer the oath of oflBce to an under-sheriff, it was held a sufficient objection to making the writ peremptory, that the person appointed was of a bad moral character, the justices being vested with some degree of discretion in administering the oath, for the protection of the public* § 176. We have thus examined, in detail, the general rule denying relief by mandamus in all cases where the purpose of the application is to control the judgment or interfere with the discretion of the court below. The controlling idea in refusing the interference in all such cases, seems to be to leave the inferior court untrammeled in the exercise of its own powers, and to refuse a species of relief which would, in effect, substitute the opinion of the superior for that of the inferior tribunal, and compel the latter to render judgment, not accord- ing to its own views of the law, but by substituting another judgment in lieu of its own, while the cause is yet pending before it. Such a procedure would be alike foreign to the nature and purpose of the writ under consideration, and we may, therefore, conclude that the doctrine is too firmly estab- lished, both upon principle and authority, to admit of any doubt, that mandamus will not lie to control the judgment or discretion of an inferior court. § 177. Another rule underlying the entire jurisdiction by ' See Frisbie v. Justices of Wythe » Frisbie e. Justices of Wythe Co. Co. 3 Va. Cas. 93; Day«. Justices 2 Va. Cas. 93. of Fleming Co. Court, 3 B. Mon. ' Day v. Justices of Fleming Co. 198; Applegate®. Applegate, 4Met. Court, 3 B. Mon. 198. And see Ky. 236. Applegate«. Applegate, 4 Met. Ky. 28fi. 142 MANDAMUS. [PAET I. mandamus over inferior courts, and second only in importance to that just considered, is, that the existence of another adequate legal remedy is always a bar to relief by mandamus to control the action of such courts. And in all cases where full and ample relief can be had, either by appeal, writ of error, or otherwise, from the judgment, decree, or order of the subordinate court, mandamus will not lie, since the courts will not permit the functions of an appeal, or writ of error, to be usurped by the writ of mandamus. Indeed, the interfer- ence in such cases would, if tolerated, speedily absorb the entire time of the appellate tribunals in revising and super- intending the proceedings of inferior courts, and the embar- rassment and delay of litigation would soon become insup- portable, were the jurisdiction by mandamus sustained in cases properly falling within the appellate powers of the higher courts. It may, therefore, be laid down as the universal rule, prevailing both in England and America, that the existence of another remedy adequate to correct the action of the inferior court, will prevent relief by mandamus. ^ § 178. The rule under consideration is of comparatively ancient origin, and in an early case in the kings bench a man- damus was refused where it was sought to compel an inferior court to execute a judgment, the ground relied upon by the court being that a sufficient remedy existed by the writ de ' "Wilkins «. Mitchell, 3 Salk. 229 ; Byrne b. Harbison, 1 Mo. 225 (2nd Succession of Macarty, 3 La. An. edition, 160) ; State ®. McAulifFe, 48 979; State «. Judge of Fourth Dis- Mo. 112; Bx pa/rte Q-oolsby, 2 Grat. trict Court, 8 La. An, 92; State », 575: State ». Mitchell, 2 Brev. (3nd Judge of Sixth District Court, 9 La. edition,) 571 ; Ex parte Bostwick, 1 An. 250 ; Leland b. Rose, 10 La. An. Cow. 143 ; Jansen v. Davison, 2 415;State«.JudgeofSecondDistrict Johns. Cas. 72; Peralta «. Adams, 2 Court, lb. 420; State «. Judge of Cal. 594; Flagley v. Hubbard, 22 Sixth District Court, 12 La. An. 342 ; Cal. 34; People v. Sexton, 24 Cal. Marshall ». The State, 1 Ind. 72; 78; State v. Engleman, 45 Mo. 27; State ». Taylor, 19 Wis. 566 ; Early Expwrte Elston, 25 Ala. 72 ; Ex parte V. Mannix, 15 Cal. 149; Ex parte Small, lb. 74; Ex pa/rte Rowland, Jones, 1 Ala. 15 ; State v. Morgan, 12 26 Ala. 133 ; Ex parte Garlington, La. 118; Exparte Cheatham, 6 Ark. lb. 170; State v. Curler, 4 Nev. 445; 437; Ex pa/rte Williamson, 8 Ark. Shelby*. Hoffman, 7 Ohio St. 460. 424; Ex pa/rte Hutt, 14 Ark. 368; CHAP. III.] TO INJb'EKlOK COURTS. 143 exeouiione jvdioii, issmng out of chancery.' And the writ ■will not be granted to compel a court to render a particular judgment, where full and speedy relief can be had by appeal in the ordinary manner. ^ So it has been held, where a jury has found for plaintiif, .but the court has arrested judgment for an alleged insufficiency in plaintiif' s declaration, that man- damus would not lie to require the court to give judgment for plaintiff, since a writ of error might be had, the proper course being for the party desiring to bring error to apply to the court for judgment against himself.^ § 179. The remedy urged in bar of the jurisdiction by man- damus may be a statutory remedy, and if it is specific in its nature, and adequate for the purposes of the relief sought, it is clearly within the rule. Thus, where a sufficient remedy is provided by statute for compelling justices of the peace to grant appeals, mandamus will not lie.* And where the refusal of the inferior court to allow an appeal, is itself subject to correction by appeal or supersedeas, such refusal constitutes no ground for interference by the extraordinary aid of man- damus.^ § 180. In the application of the rule, the sole test seems to be, whether the order of the subordinate court which it is sought to correct is of such a nature as to be the subject of an appeal, or other corrective remedy. And if this be true, the writ will not issue to compel the court to vacate the order.' So where an inferior court has set aside a judgment, and has allowed defendant to plead to the merits, it will not be com- pelled, by mandamus to remove the cause from its docket, and to issue an execution upon the judgment, since full and ade- quate relief may be afforded by an appeal in the ordinary course.'' § 181. Where, on a plea to the jurisdiction of the subor- dinate court, the plea has been sustained and the cause ordered > Wilkins ®. Mitchell, 3 Salk. 229. < State «. McAuliflfe, 48 Mo. 112. ' Early ®. Mannix, 15 Cal. 149. ' Byrne ». Harbison, 1 Mo. 225 ' SJx parte Bostwick, 1 Cow. 143. (2nd edition, 160). But see, contra, Home v. Barney, 19 « State v. Taylor, 19 Wis. 566. Johns. Rep. 347. ' £!x paHe Goolsby, 2 Grat. 575. 144 MAITDAMTTS. [PART I. to another court for trial, sncli judgment being appealable, mandamus will not lie to compel the court first having cogniz- ance of the matter to take jurisdiction of and determine the cause.' Nor will it lie to compel the granting of letters of administration to particular persons, where the court has already heard the application and appointed other persons, ade- quate remedy by appeal being given to the party aggrieved. ^ And the refusal of the court below to allow the attorney in fact of the relator to represent him on the trial of a cause, will not warrant the use of this peculiar remedy, since such refusal may properly be presented for revision by a bill of exceptions.^ § 182. We have already seen that the power of inferior courts over the taxation of costs, and questions incident thereto, is so largely a matter of judicial discretion that its improper exercise will not be corrected by mandamus.* This, however, does not constitute the sole ground on which the refusal to interfere with such questions may be based. And wherever a court has refused to give judgment for costs to the party deem- ing himself entitled thereto, and relief from the defective judg- ment may be had by resorting to an appeal or writ of error, or the party aggrieved may resort to his action for the costs, relief by mandamus will be refused. ^ § 183. The granting or refusing of a change of venue, being a matter of judicial discretion, is not, as we have already seen, subject to control by mandamus.^ But the refusal of the courts to interfere in such cases may also be based upon the existence of other relief, since the decision of an inferior court, refusing an application for a change of venue, is subject to review by appeal from the final judgment, and mandamus will not, therefore, lie to compel the change.' So where a change of venue has been granted by the inferior court, upon regular application, duly heard and considered, the same court will not be compelled by mandamus to proceed with the trial of the ' State V. Morgan, 12 La. 118. * See ante, § 159. ' State V. Mitchell, 3 Brev. 2nd ° Jansen v. DaYison, 2 Johns. Uas. edition, 571. 72 ; Peralta v. Adams, 3 Cal. 594. ' State V. Judge of Sixth District « See ante, § 172. Court, 13 La. An. 842. ' Flagley v. Hubbard, 33 Cal. 34. CHAP. III.J TO INPEEIOE COTJETS. 145 cause, wliere a prompt and efficacious remedy exists by appeal.* Indeed, the granting of the writ under such circumstances would be, in effect, the reversal of the order as a judicial pro- ceeding, and it is not the function of a mandamus to reverse the orders of inferior courts.^ § 184r. While there are frequent instances of the exercise of the jurisdiction by mandamus over clerks of court, regarding them in the light of ministerial officei's, to compel the perform- ance of purely ministerial duties, yet even in this class of cases the relief will be withheld if the party aggrieved has a suffi- cient remedy by writ of error. Thus, mandamus will not lie to compel a clerk of court to make out and file a transcript of the proceedings in a cause, which, acting under the direction of the court, he has refused to do, even though the court may have erred in its order, since ample remedy is afforded by writ of error. ^ § 185. As regards the application of the general principle under discussion to courts which are vested with only appellate powers, and which are, by their constitution, devoid of original jurisdiction, it would seem to apply with peculiar force. And the rule is well established that such courts will in no case interfere by mandamus, except in aid of their appellate juris- diction, and will refuse the writ in all cases where the ques- tions involved can be tried on appeal from the subordinate to the appellate tribunal.* § 186. While, as we have thus seen, the rule is well estab- lished that mandamus will not lie to control or correct the action of subordinate courts, where other remedy can be foxind, equally efficacious, in Alabama the tendency of the courts has been toward a partial relaxation of the rule. And it is held in that state, that as to questions which do not finally settle or determine the rights of the parties to the controversy in the lower court, and which are, therefore, not subject to review on error or appeal, mandamus is the appropriate remedy to con- ' People V. Sexton, 34 Cal. 78. La. An. 185 ; State ji.Judge of Fourth » Id. District Court, 17 La. An. 383 ; Same ' State V. Bngleman, 45 Mo. 37. v. Same, 19 La. An. 4. * State 11. Third District Court, 16 10 146 MANDAMUS. [PAET I, trol the action of the inferior court, i Thus, when an attach- ment, issued in aid of, or as ancillary to an action at law, is improperly dismissed, the court may be compelled by man- damus to reinstate the proceedings. ^ A distinction is, how- ever, recognized between cases where the attachment is ancil- lary to the main proceeding, and where the action is begun originally by attachment, and it is held that mandamus will not lie to compel the inferior court to quash an original attach- ment, which is the leading process in the case.^ Nor, in such case, will it be granted to compel the court to vacate an amend- ment which it has allowed to the original writ of attachment.* But where the court has erroneously refused to permit a suit to be revived, and has ordered it to be abated, it may be com- pelled by mandamus to rescind the order. ^ So the writ has been allowed to correct the erroneous action of an inferior court in dismissing a suit upon the application of a nominal plaintiif, which is carried on for the benefit of another person. " So, too, where the court has given an improper construction to a written agreement between the parties to a cause, and has allowed an amendment to the pleadings, in violation of the terms of such agreement, mandamus has been granted to com- pel the enforcement of the agreement.' And where no appeal lies from the order of an inferior court dismissing a cross-bill before the final determination of the cause, mandamus has been granted to compel the court to set aside its order of dismissal and to restore the cross-bill. ^ So it has been granted, pending proceedings for divorce and alimony, to require the inferior, court to make an order for the support of the wife, •pendente Ute, the court holding that if such relief were denied no other ' Kemp J). Porter, 6 Ala. 172. And Gee -o. Alabama Life Insurance Co. see "Wade ®. Judge, 5 Ala. 130 ; Bra- 13 Ala. 579 ; Hudson t. Daily, lb. zier«.Tarver, 4 Ala. 569; Boraim v. 722. Da Costa, 4 Ala. 393 ; Hogan ii. Als- » Ex parte Putnam, 30 Ala. 592. ton, 9 Ala. 627 ; Casky v. Haviland, * Id. 13 Ala. 814; Brennan's Adm'r. v. ' State, ea; reZ. Nabor's Heirs, 7 Ala. Harris, 20 Ala. 185 ; Ex parte Lowe, 459. 30 Ala. 331 ; Shadden «. Sterling's « Brazier «. Tai-ver, 4 Ala. 569. Adm'rs. 38 Ala. 518. ' Ex parte Lawrence, 34 Ala. 446. ' Boraim v. Da Costa, 4 Ala. 393 ; » Ex pa/rte Thornton, 46 Ala. 384. CHAP. III.] TO IJTFEEIOE COURTS. 147 adequate remedy could be found. * So, too, it has been allowed to compel the court to declare a bond for costs insufficient. ^ It will thus be seen that in the courts of Alabama, a wider departure has been allowed from the general principle under discussion, than can be reconciled with the weight of authority or of sound reasoning. And it would seem, in that state, that the use of the writ has been extended until it has become, within the scope of its operation, as common a means of review- ing the decisions of an inferior tribunal as an appeal.' But, even in Alabama, the practice of resorting to the writ of man- damus for the correction of errors of inferior tribunals, has been strongly denounced.* § 187. A similar tendency toward a departure from the well established rule denying the writ for the correction of errors which may be redressed by writ of error or appeal, is noticeable in the state of Michigan. And the courts of that state seem to have proceeded upon the theory, that the grant- ing of a mandamus to direct the action of a legal tribunal, pro- ceeding in the course of justice, is the appropriate exercise of a supervisory judicial control, and is in the nature of appellate action. Thus, it has been held that mandamus was the appro- priate remedy to compel a court to set aside a judgment, which it had improperly refused to set aside. ^ But the reasoning in support of such decisions does not seem to justify the conclu- ' Ex parte King, 37 Ala. 387. failed to show a clear, legal right, . ' Ex parte Morgan, 30 Ala. 51. yet the jurisdiction to compel the ' See opinion of Walkbk,0. J., in inferior court to reinstate the appeal Ex parte Garland, 42 Ala. 559. Is not denied, and would seem to be ■* See opinion of 'Byb.'D, J ., in Ex impliedly recognized in the opinion pa/rte Garland, 43 Ala. 566. of the court. But the Michigan de- ' People i>. Bacon, 18 Mich. 347. cislons are far from harmonious or And see People ». Judge of Wayne reconcilable, and a contrary doc- Circuit Court, 33 Mich. 493. And trine has been recognized In People in People ». Circuit Judge of Third e. Circuit Judge of Branch Co. 17 Circuit, 19 Mich. 396, which was an Mich. 67, and People v. Judge of application for a mandamus to com- Wayne Circuit Court, 30 Mich. 280, pel the court to reinstate an appeal, where mandamus to compel an in- which it had dismissed for want of ferior court to vacate an order for a jurisdiction, although the writ was new trial, was refused, refused because the relator had 148 ma]N"da:.i"S. [part i. sion reached, and is plainly repugnant to tlie doctrine as deduced in the foregoing sections from the weight of authority, both English and American. § 188. The review of the authorities cited in the preceding sections, has shown the doctrine to be too firmly established to be easily shaken, that the existence of another adequate and specific remedy, is a sufficient bar to the exercise of the juris- diction by mandamus, and that the writ is never granted where the grievance complained of may be corrected on error or appeal. Closely allied to this doctrine, and founded upon the same reasoning, is the principle that mandamus will not be allowed to take the place or usurp the functions of an appeal or writ of error. Indeed, the principle is but the statement, in another form, of the doctrine last discussed, and it will be found to rest upon the same chain of reasoning and to be sup- ported by the same overwhelming weight of authority. And while, in the exercise of its control over subordinate tribunal?, a superior court may set them in motion, and compel them to act, it can not, by mandamus, revise their errors, or correct their mistakes, l^ov will the writ be granted to reverse the decisions of inferior courts, upon matters properly within their judicial cognizance, or to compel them to retrace their steps, and correct their errors in judgments already rendered. In other words, it is not the province of the writ of man- damus to correct the judgments and decrees of inferior courts, and, by substituting the judgment or opinion of the higher tribunal in place of that of the lower, to usurp for mandamus substantially the same functions as a writ of error or appeal. ' ' Bank of Columbia v. Sweeny, Bx parte Oslrander, lb. 679 ; Elkins 1 Pet. 567 ; Hx parte Hoyt, IS Pet. ». Athearn, 2 Denio, 191 ; People v. 21d; Ex parU Whitney, IS FetiOi; Weston, 38 Cal. 639; Cariaga v. Ex parte De Groot, 6 Wal. 497 ; Ex Dryden, 29 Cal. 307 ; Lewis v. Bar- parte Newman, 14 Wal. 153 ; Judges clay, 85 Cal. 213 ; Jones ». Justices of Oneida Common Pleas «. The of Stafford, 1 Leigh, 584; Peoples. People, 18 Wend. 79, overruling Pratt, 28 Cal. 166 ; People v. Moore, People V. Superior Court of N. Y. 29 Cal. 437; State ». Judge of Keno- 5 Wend. 114; People «. Judges of sha Circuit Court, 8 Wis. 809; Dutchess Common Pleas, 30 Wend. County Court of Warren v. Daniel, 658; Ex parte Koon, 1 Denio, 644; 3 Bibb, 573; State d. Wright, 4 Nev. OHAP. III.] TO INiTEEIOE OOTTETS. 149 § 189. The application of the rule under discussion is in no manner affected by the fact that the subordinate court may have erred in its decision, which it is sought to redress. Even 119; Stout V. Hopping, 3 Har. (N. J.) 471 ; Kings. Inhabitants of Fries- ton, 5 Barn. & Ad. 597 ; Queen ®. Blansiiard, 13 Ad. & E. N. S. 318; Little V. Morris, 10 Tex. 363 ; Dunli- lin Co. V. District Co. Court, 33 Mo. 449; Williams v. Cooper Common Pleas, 37 Mo. 335; Blecker v. St. Louis Law Commissioner, 30 Mo. 111. See, contra, Hall «. County Court of Audrain Co. 37 Mo. 339 ; King ». Yorkshire, 5 Barn. & Ad. 667. In People v. Judges of Dutch- ess Common Pleas, 30 Wend. 658, which was an application for man- damus to compel the common pleas to vacate a rule quashing an appeal from a justice of the peace, the rule, with the reasons in support of it, is stated very clearly by Mr. Justice BiioNSON, as follows: "This pre- sents an important question in rela- tion to the appropriate office of the writ of mandamus. The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought before it for adjudication, and the question is, whether we can, by mandamus, 'require that court to undo what it has done, on the ground that the decision was erro- neous. I am of opinion that we possess no such power. I shall not stop to inquire whether the order quashing the appeal was such a final judgment upon the rights of the parties, as may be reviewed by writ of error, nor whether the rela- tor has any other remedy. Com- monwealth «. The Judges of the C. P., 3 Bin. 373. I place my opinion upon' the broad ground that the writ of mandamus can not be awarded for the correction of judi- cial errors. This court, in the exer- cise of its supervisory power over inferior tribunals, can require them, by mandamus, to proceed to judg- ment, but we can not dictate what particular judgment they shall ren- der ; much less can we require them to retrace their steps, and reverse a decision already made. Although ministerial officers and corporations may be required by this writ to act in a particular manner, or even to reverse what they have already done, the rule is otherwise in re- lation to courts of justice, and other bodies acting judicially, up- on matters within their cognizance. Their errors, if corrected at all, must be reached by some other pro- cess than the writ of mandamus. It is not to be denied that there had been a gradual departure in this state from the old law on this sub- ject, until this court had, in one in- stance at least, exercised a jurisdic- tion by mandamus as large as that which we now decline. But we stand corrected by the decision of the court of last resort in the case of The Judges of Oneida v. The People, 18 Wend. 79. As we under- stand that decision, taken in con- nection with the resolution adopted by the court, we have no jurisdic- tion by mandamus to review the de- cision of a subordinate court in a matter of which it had judicial cog- nizance." 150 MANDAMUS. [PAET I. though it be conceded that the judgment of that court is plainly erroneous, no ground is shown for the exercise of the jurisdiction by mandamus, if the question presented to the inferior court was properly within its jurisdictional powers. ^ The subordinate court having passed upon the question pend- ing before it, its decision becomes a judicial determination, and, if erroneous, it is a judicial error, which it is not the province of a mandamus to correct.^ And the fact that the decision complained of may seem to bear harshly and oppres- sively upon the party complaining, does not warrant a departure from the well established rule.^ § 190. Even if the party aggrieved has no right of appeal, or if a writ of error will not lie to the judgment or ruling of the court below, the same inflexible rule applies, and if the court properly had jurisdiction of the questions presented for its determination, the want of any remedy by error or appeal affords no ground for the exercise of the jurisdiction by man- damus. For, while it is true that the existence of another adequate remedy, either by error or appeal, bars relief by mandamus, yet. the converse of the proposition is not neces- sarily true, and the want of such l-emedy does not, of itself, entitle the party aggrieved to this extraordinary relief.* § 191. Frequent applications of the doctrine under discus- sion have been made in cases where it has been sought to com- ' Judges of Oneida Common Pleas opinion of the court in the latter ■». The People, 18 Wend. 79 ; Cariaga case, says : " Confessedly the peti- «. Dryden, 29 Cal. 307 ; Ex parte tioners are without remedy hy ap. Whitney, 13 Pet. 404; County Court peal or writ of error, as the sum or of Warren v. Daniel, 3 Bibb, 573; value in controversy is less than the Stout V. Hopping, 2 Har. (N. J.) 471 ; amount required to give that right, Queen v. Blanshard, 18 Ad. & E. K. and it is insisted that they ought, S. 318. on that account, to have the remedy '^ Ex pa/rte Koon, 1 Denio, 644; sought by their petition. Mandamus Ex parte Ostrander, lb. 679 ; Elkins will not lie, it is true, where the V. Athearn, 2 Denio, 191. party may have an appeal or writ 2 Ex parte Whitney, 13 Pet. 404. of error, but it is equally true that ' Ex parte Ostrander, 1 Denio, it will not lie in many other oases 679 ; Lewis v. Barclay, 35 Cal. 213 ; where tlie party is without remedy Ex parte Newman, 14 Wal. 152. Mr. by appeal or error." Justice CLirFORD, delivering the CHAP, III.J TO INFEEIOE COURTS. 151 pel an inferior court to reinstate an appeal from a subordinate court, which it has dismissed for want of jurisdiction, or for other cause. And with reference to this class of cases, it maj be said generally, that, where the court, acting in a judicial capacity, has dismissed an appeal from an inferior tribunal, its order of dismissal is to be regarded as a judicial determina- tion of the question, and, however erroneous, it is final and conclusive, and its correctness will not be questioned by man- damus. ^ Thus, where a court of general jurisdiction has dis- missed an appeal from a justice of the peace, mandamus will not lie to compel it to proceed to a hearing and deteimination of the appeal, since the effect of the writ in such a case would be to review all the proceedings of the court below, and to convert the mandamus into a writ of error. ^ So where a cir- cuit court of the United States has acted upon the questions presented by an appeal from a district court, and has dismissed the proceedings for want of jurisdiction, it will not be com- pelled by mandamus to entertain jurisdiction, and to proceed to a hearing of the cause. ^ ' Ex parte Newman, 14 Wal. 152; State v. Wright, 4 Nev. 119 ; People V. Weston, 28 Cal. 639; People v. Judges of Dutchess Common Pleas, 20 Wend. 658. But see People v. Circuit Judge of Third Circuit, 19 Mich. 396. = State v. Wright, 4 Nev. 119. And see People -o. Weston, 28 Cal. 639 ; People v. Judges of Dutchess Com- mon Pleas, 20 Wend. 658. ' Ex parte Newman, 14 Wal. 152. The court, Mr. Justice Cliffokd pronouncing the opinion, say, p. 165 et seq.: "Applications for a man- damus to a suhordinate court are warranted by the principles and usages of law in cases where the subordinate court, having jurisdic- tion of a case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree in the case, but the principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ when issued to a subordinate court, is to direct the performance of a ministerial act, or to command the court to act in a case where the court has jurisdiction and refuses to act, but the supervisory court will never prescribe what the deci- sion of the subordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the sub- 152 MAKDAMirS. PAET I. § 192. In conformity with the rule denying the writ for the purpose of correcting the errors of a lower court, it has ' " been refused v/here it was sought to compel the inferior court to admit certain evidence which it had excluded, i ISTor will it lie to correct or revise questions of pleading which have been decided by the subordinate tribunal, or to compel the with- drawal of an issue already made up in a cause, and the substi- tution of a different issue, the appropriate remedy for all questions of this nature being by writ of error or appeal.* And an additional reason of equally binding force for refusing the writ in such case, is, that notwithstanding any opinion ordinate court in disposing of the controversy. Insurance Co. v. Wil- son, 8 Pet. 302 ; United States ii. Pe- ters, 5 Cranch, 13.5: Mx parte Brad- street, 7 Pet. 648; £Jx parte Many, 14 How. 24 ; United States i). Law- rence, 3 Dall. 43 ; Commissioner d. Whitely, 4 "Wal. 522; Insurance Co. ■u. Adams, 9 Pet. 603. * * * Su- perior tribunals may by mandamus command an inferior court to per- form a legal duty where there is no other remedy, and the rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unper- formed and it be judicial in its character, the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the man- ner in which it shall be done, or if it be ministerial the mandamus will direct the specific act to be per- formed. Carpenter v. Bristol, 31 Pickering, 258 ; Angell & Ames on Corporations, 9th ed., § 720. Power is given to this court by the judi- ciary act under a writ of error, or appeal, to affirm or reverse the judg- ment or decree of the circuit court, and in certain cases to render such judgment or decree, as the circuit court should have rendered or passed, but no such power is given under a writ of mandamus, nor is it competent for the superior tribu- nal under such a writ, to re exam- ine the judgment or decree of the .subordinate court. Such a writ can not perform the functions of an ap- peal or writ of error, as the supe- rior court will not, in any case, di- rect the judge of the subordinate court wliat judgment or decree to enter in the case, as the writ does not vest in the superior court any power to give any such direction, or to interfere in any manner with the judicial discretion and judgment of the subordinate court. Bx parte Crane, 5 Peters, 194; Ex parte Brsid- street, 7 Id. 634; Insurance Co. v. Wilson, 8 Id. 304; Ex parte Many, 14 Howard, 34. Viewed in the light of the return, the court is of the opinion that the rule must be dis- charged and the petition denied." ' King V. Inhabitants of Prieston, 5 Barn. & Ad. 597. But see King s. Yorkshire, lb. 667. = Bank of Columbia v. Sweeny, ] Pet. 567. CHAP. III.J TO INFEEIOE C0UET8. 153 expresged by the superior court upon the proceedings in man- damus, the same question might again recur upon the final judgment in the case on writ of error, i § 193. Tlie rule under consideration applies, also, to ques- tions of costs, and their erroneous decision by the subordinate court aifords no ground for the interposition of the extraoi'- dinary aid of a mandamus. It will not, therefore, be granted to compel a judge to tax a particular bill of costs or to order a particular person to pay the costs of a suit, even though he may have erred in his refusal to tax the costs, since the grant- ing of the writ to thus correct the error of an inferior tribunal. ' Bank of Columbia o. Sweeny, supra. "This case," says Mau- shalij, C. J., "arose under the pro- vision of tlie act of tlie 1e;;islalure of Maryland incorporaling tlie Bank of Columbia, v, liicli author- izes summary process for tlie col- lection of debts due to the bank. That act allows an execution against the person of the debtor, to issue in the first instance, upon the application of the president of the bank ; but it also authorizes the court, if upon the return of the ex- ecution the defendant 'dispute the debt,' to order an issue to be made up, &c. to try the action. In the present case, the circuit court did not refuse to direct such an issue to be made up; which had they re- fused to do, a mandamus would have been the proper process to compel that to be done which the act requires. But the circuit court did du-ect an issue, and allow a plea of the statute of limitations. The application now is, that the circuit court be ordered to withdraw that issue, and to direct a different issue to be made up, according to what the counsel for the bank supposes to be the proper construction of the act. We think this is not a proper case for a mundamus. It does not difler in principle, from any other case in which the party should plead a defective plea, and the plaintiff should demur to it; in \vliich case there is no doubt that the revising power of this court could be exercised only by a writ of error. If this motion could now prevail, it would be a plain evasion of the provision of the act of con- gress, that final judgments only should be brought before tliis court for re-examination. This case might still be brought before this court by a writ of error, notwithstanding any opinion expressed upon the man- damus, and the same question again be discussed upon the final judg- ment. The effect, therefore, of this mode of interposition, would be to retard decisions upon questions which were not final in the court below, so that the same cause might come before this court many times, before there would bo a final judg ment." 154 MANDAMUS. [PAET I. would be a gross perversion of its appropriate office and functions. '^ § 194. In conformity with the general rule denying the writ for the correction of inferior tribunals by annulling what they have erroneously done, it will not lie to compel a county court to vacate an order, within its jurisdictional powers, directing the sale of lands of the county to a railway company, in payment of the subscription of the county to the stock of the railway. 2 § 195. The writ does not lie from a superior to an inferior court, to compel it to grant a mandamus which it has refused, since it is not the function of a mandamus to reverse the decision of an inferior court, even where that decision is a refusal to grant a mandamus, the appropriate remedy, if anj being by writ of error. ^ § 196. The general principle discussed in the opeiiiiig chapter, that a mandamus will not be granted where, if issued, it would prove unavailing, applies with equal propriety to cases where the relief is sought against the action of the courts, and if it is apparent that the writ would prove unavail- ing, it will be withheld. Thus, where a court has, on a chal- lenge to the array, directed a jury to be discharged and the cause to stand continued, mandamus will not be granted to compel the court to set aside its order and pioceed with the trial of the cause, since the same challenge might be again interposed to another jury, and with the same result.* § 197. ]S"o pi'inciple of the law of mandamus is better established than that requiring the party aggrieved to show, as the foundation of the proceedings, that the specific act sought to be coerced is the duty of the person against whom ' State u. Judge of Kenosha Cir- ^ Ex parte De Gi'oot, 6 Wal. 497. cuit Court, 3 Wis. 809. And see Ex But in Arlcansas tlie writ has been parte Nelson, 1 Cow. 417; People v. allowed to compel a court to issue a New York Common Pleas, 19 Wend. writ of habeas corpus, which it 113; Jansen «.■ Davison, 2 Johns. had improperly refused. Wright «. Cas. 72; Peralta ». Adams, 2 Cal. Johnson, 5 Ark. 687. 594; Ex parte Many, 14 How. 34. * Corporation «. Paulding, 4 Mar- ' Dunklin Co. v. District Co. Court, tin, N. S. 189. 23 Mo. 449. OHAP. III.] TO INFERIOR COURTS. 155 the writ is directed, and the rule applies with equal force to cases where the relief is sought against courts and judges. And where it is apparent that the thing sought to be per- formed is not a duty resulting from the oiEce of the judge, relief will be withheld. Thus, where the parties to a suit stipulate that certain facts shall be determined by referees, and that their report when submitted shall stand as the finding of the court, and shaU be signed by the judge, he can not be com- pelled by mandamus to sign the report or finding, since it is not a duty incumbent upon him in an ofiicial capacity, but only by virtue of the stipulation entered into by the parties. * § 198. It is also a fundamental rule, that the relator must show a clear and unquestioned right to the specific thing sought, and this rule is applied in all cases where the purpose of the proceeding is to compel the action of judicial tribunals. And the writ will not issue to an inferior tribunal of a quasi - judicial nature, to compel it to grant a statutory right or fran- chise, such as the right of maintaining a ferry, to which the relator does not show himself to be entitled beyond doubt.^ ' State «. McAitliur, 33 Wis. 437. " State v. Commissioners of Roads, 3 Port. 413. 156 MANDAMUS. [PAKT I. II. Bills of Exceptions. g 199. Former remedy in chancery. 300. The jurisdiction now exercised by courts of law. 301. When mandamus granted to sign bill of exceptions. 202. Truth of bill to he determined by court below. 203. Writ refused where bill has once been signed. 204. Relator's laches may bar relief. 205. Writ only granted to judge who tried cause. 206. Absolute refusal to sign bill must be shown. 207. When granted to referee. 208. Effect of answer denying jurisdiction of higher court. 209. Evidence and instructions, when included in bill. 210. Limitation upon general rule ; remedy by indictment or impeach ment. 211. Subsequent alterations in bill not corrected by mandamus. 212. Jurisdiction not exercised over courts of chancery. 213. Nor over justice courts. 214. Bill need not be incorporated in writ; hut siiould accompany it. 315. Jurisdiction extended to quasi-judicial tribunals. § 199. The jurisdiction by mandaimis to compel inferior courts to sign and seal bills of exceptions, or to amend such bills according to the truth of the case, seems to have been originally confined to the English court of chancery, and no instances are to be foimd of its exercise by the court of kings bencli.^ The earlier practice in this country was analogous to 'See SiVes i>. Kansom, 6 Johns. tained. "The application," say the Rep. 379, where the history of the court, "is entirely new; and it be- jurisdiction is very clearly set forth. comes a question whether this This was an application to the su- court can interfere when a court prerae court of judicature of New below refuses to seal a bill of ex- York, under the old system, for a ceptions. The books do not furnish mandamus to the judges of an infe- much light on this subject. The rior court, to amend a bill of excep. practice in England, under the tions, according to the truth of the statute of Westm. 3, (of which ours case. Although the court denied is a copy) seems to be, to apply to the relief, on the ground that suflB- the court of chancery, for a writ cient cause was not shown to war- grounded upon the statute. The rant interference, the jurisdiction form of the writ is to be found in in this class of oases, was fully sus- the Register (183, a,); and Lord CHAP. III.] TO INFERIOR COURTS. 157 that of tlie Englisli court of chancery, and an inferior court of law might he compelled hy a compulsory writ, issuing out of chancery, and directed to the judges, to sign and seal a hill upon proper cause shown. ^ While this " compulsory writ," as it was called, was not, in terms, a mandamus, yet its effect was the same, and the jurisdiction thus exercised was sub- stantially identical with that now made use of to accomplish the same result. § 200. The power of compelling an inferior court of law to sign and seal a bill of exceptions, is now freely exercised by the courts of law of last resort in this country, even in those states where the separate chancery system still prevails. And where the court of final resort of a state has a general super- intendence over all inferior courts, and is bound to enforce Redesdale, in tlie case of Lessee of Lawlor v. Murray, (1 Sch. and Lefroy, 75,) calls it a mandatory writ, a sort of prerogative writ; that the judges to whom it is di- rected must ohey the writ, by seal- ing the exceptions, or make a spe- cial return to the king in chancery. The writ, after reciting the com- plaint, commands the judges, si ita est, tune sigilla vestra, die., et hoe siib perieulo quod ineimbit nullatenus omittatis. What that peril is, with- in the purview of the writ, does not distinctly appear ; though the books speak of an action on the statute, at the instance of the party aggrieved. (Show. P. 0. 117.) In the Rioters case, (1 Veru. 175,) a precedent was produced, where, in a like case, such a mandatory writ had issued out of chancery, to the judge of the sheriff's court in London. But though no instance appears of such a writ issuing out of the K. B., when an inferior court refused to seal a bill of exceptions, there is no case denying to that court the pow- er to award the writ. It is, in ef- fect, a writ of mandamus, and it is so termed in the books. (Bac. Abr. tit. Mandamus, E.) A mandamus is a prerogative writ. It ought to be used where the law has estab- lished no specific remedy, and where, in justice and good govern- ment, there ought to be one. Why can not the writ in question issue from this court ? We have the gen- eral superintendence of all inferior courts; and are bound to enforce obedience to the statutes, and to oblige subordinate courts and mag- istrates to do those legal acts wliich it is their duty to do. The man- damus, as was observed in the case of The King «. Baker, (Burr. 1205,) has, within the last century, been liberally interposed, for the benefit of the subject, and the advancen ont of justice. There is no reason why the awarding of this particular writ does not fall within the juris- diction of this court, or why it should be exclusively confined to tlie Court of Chancery." ' Sec Briscoe ^). Ward, 1 liar, it J. 165. 158 MANDAMUS. [PAET I. obedience to the laws of the state, and to compel subordinate courts to perform the duties legally incumbent upon them, the granting of the writ to compel the signing or amending of bills of exceptions may be regarded as falling naturally and appropriately within the jurisdiction of such court, i Even where the state court of last resort is vested only with appel- late powers, it may, in aid of its appellate jurisdiction, and as a necessary incident to its proper exercise, grant a mandamus to require an inferior court to sign and seal a bill of excep- tions, in order that the record of the case in the appellate court may be perfected, and to carry out and perfect the right of the party appeahng.^ § 201. As regards the mere act of signing and approving a bill of exceptions, it is held to be of a ministerial nature, and hence subject to control by mandamus, although a legal discretion is to be observed in determining the character of the particular bill to be signed. If, therefore, the court to which the writ is directed shows satisfactory reasons for not signing the bill presented, the peremptory writ will not go, but in the absence of any return showing such reasons, the peremptory mandamus will issue. ^ And where it is shown that the court below has absolutely refused to sign a bill, and the relator avers that the matters therein contained are material to the determination of his rights on appeal, a proper case is pre- sented for a mandamus to compel the signing of the bill.* But it is always a sufficient objection to the application for the writ, that the bill, as tendered to the court for its signa- ture, was untrue, and where the relator does not deny the correctness of such a return, he is considered as having assented to it, and his application will be refused. ^ § 202. An important consideration to be borne in mind in the exercise of this branch of the general jurisdiction by man- ' Sikes V. Ransom, 6 Johns. Rep. = People «. Pearson, 3 Scam. 370. 379. i State v. Hall, 3 Cold. 355. ' State V. Hall, 3 Cold. 255. And ' Peoples. Judges of "West Chester, see State v. Elmore, 6 Cold. 528; Col. & C. Cas. 185 ; S. C. 3 Johns. Cas. Newman v. Justices of Scott Co. 1 118; State v. Todd, 4 Ohio, 351. Heiskell, 787. CHAP. III.J TO IWFEBIOE COUETS. 159 damns, is, that tlie power of determining whether the particular bill of exceptions tendered is or is not true, rests exclusively with the court or judge before whom the cause was tried, and to whom the writ is directed, and the exercise of this power is beyond control by mandamus. ' All that the judge can be required to do, is to sign such a bill as presents the facts in accordance with his knowledge and recollection, since this must necessarily be the test in determining what particular bill shall be signed. "Where, therefore, the judge returns that the bill as originally settled by him was settled truly, according to the facts of the case as he remembers them, nothing more can be required of him.* And where he has already signed one bill of exceptions, he can not be compelled by mandamus to sign another and a different one, since it is his own exclusive province to determine the correctness of the bill which he shall sign.' And in no event should the writ direct a judge to sign a bill absolutely, as presented, but only to sign it after it has been duly settled.* So where the return shows that the respondent is willing to sign a true bill, but alleges that the bill as presented is not true, the peremptory writ will be refused, since the right to determine thfe truth of the bill rests exclusively with the judge himself. ^ § 203. Mandamus will not lie to compel the signing of a second bill of exceptions in the same cause, where one has already been signed and certified, embracing the same grounds, and the whole matter involved has been adjudicated by the appellate court. ^ And where conflicting questions arise con- cerning the facts to be inserted in the bill, and the inferior court has already signed one bill, it will not be compelled to amend it, the qiiestion being regarded as within the peculiar knowledge of the judge before whom the cause was tried, and the superior tribunal will not, on proceedings in mandamus, hear and determine the facts on which the adjudication of the > State V. Todd, 4 Ohio, 351 ; Peo- * People •». Lee, 14 Cal. 510. pie V. Jameson, 40 111. 96 ; State v. = Creager «. Meeker, 33 Ohio St. Noggle, 13 Wis. 380. 307. ' State V. Noggle, 13 Wis. 380. * Harris v. State of Georgia, 2 Geo. • People V. Jameson, 40 111. 96. 390. 160 MANDAMUS. [PABT I. question must depend. i Especially will tlie writ be refused to compel the amendment of a bill where the statutes of tht state afford ample remedy for the party aggrieved in such a case, and he will be left to pursue his statutory remedy. ^ § 204. While, as we have seen, the jurisdiction by man- damus is freely exercised to compel an inferior court or judge to settle and sign a bill of exceptions, which has been refused, yet the party aggrieved by such refusal must use due diligence in availing himself of this extraordinary remedy. And where there has been gross laches in allowing the bill to rest for many months before presenting it for signature, or where it has not been tendered until after the expiration of the time prescribed by law for that purpose, and after so long a period has elapsed that the judge has forgotten the facts involved in the case, and is unable to remember whether the allegations contained in the bill are true or false, no grounds exist for a mandamus, and the inferior court is justified in such case in its refusal to sign the bill. ' Nor, in such case, will the fact that the parties to the cause have stipulated in writing to waive the statutory period for their mutual convenience, alter the case *or vary the application of the rule, since such a stipulation can not have the effect of altering the law, or of depriving the judge of his rights as to the time of signing the bill.* And where the bill was not tendered to the judges at the trial, and not until the subsequent vacation, and was then presented to the judges individually, it was held that mandamus woidd not lie.^ § 205. It being, as we have thus seen, an indispensable condition to the exercise of the jurisdiction in this class of cases, that the jiidge to whom the writ is directed should be personally cognizant of the facts which it is sought to incor- porate in the bill of exceptions, mandamus will not lie to compel a judge to sign a bill in a case which was tried before ' Jamison v. Reid, 3 Gr. Greene, 394. berry «. Collins, 9 Johns. Rep. 346. ' Id. ' Engel v. Speer, 36 Geo. 258. 3EngeIf).Speor,36Geo.358; State ' Midberry v. Collins, 9 Johns. V. St. Louis Court of Criminal Cor- Rep. 345. rection, 41 Mo. 598. And see Mid- OHAP. III.j TO INFEKIOE COURTS. 161 his predecessor in oifice, since lie can not, in sucli a case, have the necessary knowledge to enable him to pass upon the bill.i So where the judge is entirely ignorant of the contents of the bill, and returns that he does not know what took place at the trial, the cause having been tried, by agreement of counsel, before a private person, the wi-it will be withheld. ^ § 206. An absolute refusal on the part of the judge to per- form his duty, should be shown as a condition precedent to granting a mandamus to compel the signing of a bill of excep- tions. And a mere qualified and temporary refusal or delay on the part of the judge, as by suggesting an adjournment to the parties in the hope of preventing further litigation, does not amount to such a refusal as to warrant interference by the extraordinary aid of a mandamus.* § 207. While mandamus would seem to be the appropriate remedy to compel a referee, to whom a case has been referred for hearing, to settle a case and exceptions, yet it should be made apparent to the court granting the writ, that the excep- tions, when so settled, will be in accordance with the facts of the case, and where the alternative writ fails to show this, the omission is fatal, and the peremptory writ will not be granted.* § 208. Where the judge of an inferior court has been directed by an alternative mandamus to sign a bill of excep- tions, but fails to make return to the alternative writ, and in lieu thereof files an answer denying the power of the court to take cognizance of the case, he will be compelled by a peremp- tory mandamus to sign the bill, the case being treated as one in which the authority of the higher court has been dis- regarded. ^ § 209. Where the court below was asked, on the trial of a cause, to charge the jury that there was no evidence tending to prove a certain proposition involved in the case, but the instruction was refused and exception taken, the court was compelled by mandamus to include in the bill of exceptions all the evidence bearing upon that particular proposition. ' Fellows V. Tait, 14 Wis. 156. 584 » State ». Larrabee, 3 "Wis. 783. * People v. Baker, 35 Barb. 105. 8 Irving «. Askew, 20 L. T. R. N. 8. ' People v. Pearson, 3 Scam. 370. 11 162 MANDAMUS. [PAKT I. plaintiff in error being clearly entitled to that right. ^ But while it is conceded that the supreme court of the United States may issue the writ, in the exercise of its appellate juris- diction, to compel a circuit court to sign a bill of exceptions, yet the writ will not be granted to compel the circuit court to incorporate into the bill so much of the instructions of the court to the jury as relates to the evidence in the case, the rulings of the court upon the propositions of law submitted by counsel in the instructions asked being all presented in the bill, and only the charge and comments of the court to the jury upon the evidence being omitted. ^ § 210. While, as we have already seen, the general rule is too well established to admit of controversy, that the discre- , tion of the inferior court or judge as to what constitutes a true bill of exceptions, will not be interfered with by man- damus, it does not follow that a judge is privileged to reject a bill which properly presents the case. And a return to the alternative writ which alleges that the relator had no authority to compel the respondent to sign the bill, since he himself must be the judge of the correctness of the exceptions, is insufficient, where it fails to show that the bill as presented did not state the facts truly, or that the exceptions were not taken in the proper manner and at the proper time.^ Nor is it a sufficient objection to the exercise of the jurisdiction, that the party aggrieved has a remedy against the judge refusing to sign the bill by indictment or impeachment, since a convic- tion or removal of the judge from office would not restore the person aggrieved to his rights, and would not, therefore, afford an adequate or specific remedy for his grievance.* § 211. Where, after signing the bill as originally presented to him, and after filing it in the clerk's office, the judge, of his own volition, makes material changes and alterations in the bill, mandamus will not lie to compel him to restore it to its original condition. In such case, the authority of the judge over the bill having entirely ceased upon his signing ' Crane v. Judge of "Wayne Circuit ^ Btheridge v. Hall, 7 Port. 47. Court, 24 Micli. 513. * Id. ' Ex parte Crane, 5 Pet. 190. CHAP. III.] TO IWFBRIOE OOTJETS. 163 and certifying it, his subsequent action in making the changes and alterations, however unauthorized, is merely in his indi- vidual capacity, and is not done officially, as judge, and the writ is not granted against a private citizen, i § 212. Bills of exceptions being unknown to chancery practice, the writ will not issue to compel the signing of a bill in a chancery cause determined in the inferior court. ^ Nor will it be granted to compel a court of chancery to inscribe in an order book, upon the application of one of the parties, an order which it has made in the cause. ^ § 213. The branch of the jurisdiction under discussion applies only to courts of record, and mandamus does not lie to compel a justice of the peace to sign and seal a bill of exceptions in a cause tried by him, in the absence of any law making it his duty to sign such bill.'* § 214. As a matter of practice, where the writ is granted to compel an inferior court to sign and seal a bill of exceptions, it is not necessary to recite the bill in the alternative writ, and a motion to quash because of its omission will not be granted. ^ The writ, however, should be accompanied by the bill which was tendered for signature.' And as regards the practice on applications to compel amendments to bills of exceptions, it would seem to be the better course to refer the bill back in the first instance to the judge who settled it, in order that he may have an opportunity of reviewing it.' § 215. The jurisdiction by mandamus to compel the signing of bills of exceptions has been extended to inferior tribunals, which, though not properly courts, yet partake of a judicial nature and exercise judicial functions. Thus, where a special tribunal is organized under the statutes of a state for the trial of contested county elections, and during a trial before such tribunal exceptions are taken to its rulings, and a bill of excep- ' State of Georgia v. Powers, 14 4 Cow. 73. Geo. 388. « Creager v. Meeker, 23 Ohio St. " Ex parte Story, 12 Pet. 339. 207. ' Id. ' Delavan v. Boardman, 5 Wend. ♦ Ohio V. Wood, 22 Ohio St. 537. 132. ' People v. Judges of Westchester, 164 MAU-DAMTJS. [PART I tions is afterwards tendered for its signature, -whicli is refused^ a proper case is presented for a mandamus.^ But it would seem that, on a return by the respondents in such case that they have made full compliance with the writ, the court wiU decline to hear proof offered by the relator, that the bill of exceptions, as signed, was not true.^ III. Attoeneys. § 316. Mandamus to restore attorneys. 317. Limitations upon the exercise of tlie jurisdiction. 318. Allowed where court has exceeded its jurisdiction ; or decided erroneously. 319. Actual amotion of attorney must be shown. 330. Want of notice to attorney before removal. 331. Eule in Alabama ; affidavit, requisites of 333. Distinction between office and employment. 333. Mandamus not granted to compel admission to practice. 334. Granted to compel appointment of attorney to defend non compos. % 216. Questions of considerable interest to the profession have frequently occurred in determining how far the superior courts of appellate jurisdiction and of iinal resort, may inter- fere by mandamus with the control of inferior courts of gen- eral jurisdiction over attorneys practising therein, and with the removal of attorneys from their office. In England, the jurisdiction of the kings bench by mandamus to restore an attorney to his office is of comparatively ancient origin.' In this country, the powers of the courts over attorneys, and the status of attorneys as officers of the court, are generally regulated by statute in the different states, and the decisions are not wholly reconcilable as to the power of the higher courts to control by mandamus the lower tribunals in the amotion of attorneys from their office. § 217. It would seem, upon principle, that an order of dismissal, deposing an attorney from his office, is in its ' State t. Sheldon, 3 Kan. 333. « See Hurst's Case, 1 Lev. part I. " See note to same case. 75. OHAP. III.] TO INFEBIOE COUETS. 165 nature a judicial act, and is or should be performed in the exercise of a judicial discretion. And it is well settled, as a common law doctrine, that this power rests exclusively with the court, which must itself determine, in the absence of statutes, the qualifications of its officers and for what cause they shall be removed. ^ It may be said, generally, that the revising tribunal, even if it possesses undoubted authority to control the inferior court as to the removal of its attorneys, will only exercise this authority in a plain case, and where the conduct of the court below is irregular, or flagrantly im- proper. 2 And the courts are less inclined to interfere where the complaint is not of an absolute removal, but only of a suspension from practice, which has nearly expired, and after which the attorney may be restored by the court itself. ^ And where, by statute, it is made the duty of attorneys and coun- selors to " maintain the respect due to courts of justice and judicial officers," and it is provided that a violation of this duty shall constitute cause for removal, it rests with the court below to determine as a judicial question what acts constitute a violation of the statute, and sufficient cause for removal. "Where, therefore, the court has decided that the offiinding party has been guilty of such acts as constitute a violation of the statute, and has ordered his removal, its decision will not be controlled by mandamus.* ' Ex parte Secomhe, 19 How. 9. ' Ex parte Burr, supra. "The power, however," says Chief ' Ex parte Secombe, 19 How. 9. Justice Taney, in this case, "is The court, Taney, C. J., delivering not an arbitrary and despotic one, the opinion, say: "The statute, it to be exercised at the pleasure of will be observed, does not attempt the court, or from passion, preju- to specify the acts which shall be dice, or personal hostility ; but it is deemed disrespectful to the court the duty of the court to exercise or the judicial ofScers. It must, and regulate it by a sound and Just therefore, rest with the court to de- judicial discretion, whereby the termine what acts amount to a viola- rights and independence of the bar tion of this provision ; and this is a may be as scrupulously guarded judicial power, vested in the court and maintained by the court, as the by the legislature. The removal of rights and dignity of the court the relator, therefore, for the cause itself." above mentioned, was the act of a » Ex parte Burr, 9 "Wheat. 529. court done in the exercise of a judi- 166 MANDAMUS. [PAET § 218. "While, as we have seen in the preceding section, the writ will not lie to control the exercise of the judicial discre- tion of an inferior court in removing an attorney, yet if the court has manifestly exceeded its authority and acted outside of its jurisdiction, as if it has disbarred an attorney for a contempt committed by him before another court, mandamus will lie to restore the attorney, since no amount of legal dis- cretion can supply a defect or want of jurisdiction. ^ And it cial discretion, which the law au- thorized and required it to exer- cise." And. see Commonwealth v. The District Court, 5 W. & S. 372, where mandamus to restore an attorney to the rolls was refused on the ground that the admission of an attorney being a judicial act, his dismissal is equally so, and that, in principle, there can he no dis- tinction between the two cases. ' JE!x parte Bradley, 7 Wal. 364 And see People ii. Justices of Dela- ware Common Pleas, 1 Johns. Cas. 181. Ex parte Bradley, 7 Wal. 364, arose out of a petition by Bradley to the supreme court of the United States, for a mandamus to compel the supreme court of the District of Columbia to restore him to the office of attorney and counselor in that court, from which he alleged that he had been wrongfully re- moved. Mr. Justice Nelson, deliv- ering the opinion, says: "This writ is applicable only in the super- vision of the proceedings of inferior courts, in cases where there is a legal right, without any existing legal remedy. It is upon this ground that the remedy has been applied from an early day, indeed, since the organization of courts, and the admission of attorneys to practice therein down to the present time, to correct the abuses of the inferior courts in summary proceed- ings against their officers, and es- pecially against the attorneys and counselors of the courts. The order disbarring them, or subjecting them to fine or imprisonment, is not reviewable by writ of error, it not being a judgment in the sense of the law for which this writ will lie. Without, therefore, the use of the writ of mandamus, however flagrant the wrong committed against these officers, they would be destitute of any redress. The attorney or coun- selor, disbarred from caprice, preju- dice, or passion, and thus suddenly deprived of the only means of an honorable support of himself and family, upon the contrary doctrine contended for, would be utterly remediless. It is true that this remedy, even when liberally ex- pounded, affords a far less effectual security to the occupation of at- torney than is extended to that of every other class in the community. For we agree tliat this writ does not lie to control the judicial discretion of the judge or court; and hence, where the act complained of rested in the exercise of this discretion, the remedy fails. But this discre- tion is not unlimited, for if it be exercised with manifest injustice, the court of kings bench will com- mand its due exercise. Tapping on OHAP. m.J TO INrEEIOE OOTJKTS. 167 has been held, although it would seem to carry the interfer- ence to its utmost limit, that where the inferior court has decided erroneously upon the testimony in disbarring an attorney, and a plain case of hardship is made to appear, man- damus will lie, and that the superior court is only precluded from interfei'ing when the discretion of the lower court has been exercised in a reasonable manner, i ^ 219. To warrant the interference by mandamus in this class of cases, there must have been an actual amotion from the office of attorney. And a mere refusal of the court to listen to an attorney in a single case, or even statements on the part of judges of such court that the attorney will not be allowed to practice before them, will not justify the writ, where there has been no action on the part of the court actually disbarring the relator. ^ § 220. Mandamus is the appropriate remedy to compel an inferior court to restore an attorney to the rolls, where he has Mandamus, 13, 14. It must be a sound discretion, and according to law. As said by Chief Justice Tanbt, in Ex parte Secoilibe, 19 How. 13 : ' The power, Iiowever, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice or personal hostility.' And by Chief Justice Marshall, in Ex parte Burr, 9 Wheat. 530: 'The court is not inclined to interpose, unless it were in a case where the conduct of the circuit or district court was irregular, or was flagrantly im- proper.' "We are not concerned, however, to examine in the present case how far this court would in- quire into any irregula,ritie3 or ex- cesses of the court below, in the exercise of its discretion in making the order against the relator, as our decision is not at all dependent upon that question. Whatever views may be entertained concerning it, they are wholly immaterial and un- important here. The ground of our decision upon this branch of the case is, that the court below had no jurisdiction to disbar tlie relator for a contempt committed before another court. The contrary must be maintained before this order can be upheld and the writ of man- damus denied. No amount of judi- cial discretion of a court can sup- ply a defect or want of jurisdiction in the case. The subject-matter is not before it; the proceeding is coram non judice and void. Kow, this want of jurisdiction of the in- ferior court in a summary proceed- ing to remove an officer of the court, or disbar an attorney or counselor, is one of the specific cases in wliich this writ is the appropriate remedy." ' State of Florida v. Kuke, 13 Fla. 378. " People 1). Cowling, 55 Barb. 197. 168 MANDAMUS. [PAET I. been improperly stricken therefrom upon an ex parte proceed- ing, without notice or opportunity either for defense or explan- ation. And while, in the absence of statutory regulations, it is conceded that courts of original jurisdiction have control over their attorneys, practising before them, with authority to strike them from the rolls, yet this authority is to be exercised only after affording the party accused an opportunity of being heard in defense. Where this has not been done, mandamus is regarded as the only adequate remedy to meet the case, and the granting of the writ in such a case in no manner interferes with the exercise of the judicial discretion of the court below. ^ But where, by statute, it is provided that the proceedings for the removal of an attorney may be taken by the court, on its own motion, and for matter within its knowledge, and the court has accordingly acted on its own motion, and removed the attorney for offenses committed in open court, and then decides that in such a case no notice is necessary and pro- ceeds without it, its decision, being made in the exercise of judicial authority, upon a subject-matter within its. jurisdic- tion, can not be revised or annulled by mandamus.^ § 221. It is held in Alabama, that af an attorney who has been duly admitted to practice in all the courts of the state, is improperly prohibited from practising in a local and inferior court, he may be restored by mandamus, but that it is not sufficient to allege that the relator is a practitioner of law in ' People 0. Turner, 1 Cal. 143. his trade, or a merchant of the pur- The court, Mr. Justice Bbnnktt, suit of his commercial avocations, say: "That there is no other spe- It is true, that, being officers of tlie ciflc and adequate legal remedy, is court, attorneys are in many re- too apparent to admit of contro- speots subject to the orders of the versy, or to require any further con- court, but these orders must be the sideration here. Would the issuing result of sound and legal, and not of it interfere with the discretionary of arbitrary and uncontrolled dis- power of the court ? I think not. cretion. A mandamus to the dis- An attorney, by his admission as trict court to vacate this order, such, acquires rights, of which he would not be an interference with can not be deprived at the discretion the discretionary powers of that of the court, any more than a phy- court." sician of the practice of his profes- ° Bx parte Secombe, 19 How. 9. sion, a mechanic of the exercise of CHAP, III.] TO IWPERIOE OOTTBTS. 169 all the courts of the state, both of state and federal jurisdic- tion, it not being alleged that he is duly and regularly licensed and that he has taken the oath.i And the affidavit in support of the application for mandamus to restore an attorney to the rolls, is insufficient if it does not show that the court below acted improperly in the removal, or that the fact charged against the attorney and on which he was removed, was founded in error or mistake.^ § 222. In the exercise of the jurisdiction under discussion, a distinction is taken between interfering to restore an attor- ney, whose position is that of an officer of the court, and cases of mere employment, and while, in the former class of cases, the jurisdiction is often exercised, in the latter class, the courts will not interfere. Thus, it is held that the position of a proc- tor of doctors commons in England is not an office, properly speaking, but merely an employment, subjecting the person to the original jurisdiction of the court of doctors commons. Where, therefore, such court, acting within its powers, has sus- pended a proctor, mandamus will not lie to restore liim.^ § 223. The question of the admission of persons to practice as attorneys in the courts has sometimes given rise to applica- tions for the extraordinary aid of mandamus to compel the admission of applicants. This question, however', being regarded as a judicial one, and the courts in passing ujaon the admission of attorneys being regarded as exercising judicial rather than ministerial functions, the exercise of their preroga- tive will not be disturbed or revised by a superior court. Where, therefore, the subordinate court has refused to admit an applicant, mandamus will not lie to compel the admission.* And in England, mandamus will not go to one of the inns of court to compel admission to the degree of barrister-at-law, these inns being merely voluntary societies submitting to gov- ' Withers «. The State, 36 Ala. 252. providing that " there may be a ' In, re Gephard, 1 Johns. Cas. 134. competent number of persons, of an ' Leigh's case, 3 Mod. Rep. 332. honest disposition and learned in * Commonwealth v. The Judges, the law, admitted by the justices of 1 S. & R. 187. This decision was the respective courts, to practice aB rendered under a statute of the state attorneys there." 170 majstdamus. [paet I. ernment, and the proper method of redress in such a case being by appeal to the twelve judges. ' § 224. It has been held an appropriate exercise of the juris- diction by mandamus to grant the writ for the purpose of com- pelling a subordinate court to appoint an attorney to defend a person who is non cornpos, and against whom suit is brought.^ IV. State and Fedeeal Couets. § 335. Mandamus not granted to remove cause from state to federal court. 336. Reasons in support of the rule. 837. Writ not granted from federal to state courts to compel removal. 338. Distinction between removal of cause and accepting surety for removal. 339. Mandamus in aid of proceedings in federal courts. § 225. Our peculiar system of state and federal courts, with their different jurisdictions, each acting independent of the other, has given rise to questions of much nicety in cases falling within the jurisdiction of either forum, and in some instances the aid of mandamus has been invoked for their determination. The most frequent eases of this kind have been where mandamus was sought to compel the removal of a cause from the state to the federal courts, under the 12th sec- tion of the judiciary act of 1789, providing for such removal by a non-resident defendant sued in the state courts. While the authorities are far from reconcilable upon this subject, the better considered doctrine, supported by the clear weight of authority, undoubtedly is, that where the question of removal is properly presented to the state court and passed upon by that tribimal, its decision, however erroneous, is not void and can not be reviewed by proceedings in mandamus in the higher state court. And mandamus will not lie from the superior courts of the different states, to compel the subordinate courts either to revise, reverse, or rescind their action upon such applications, or to compel them to proceed in any manner ' Kina; ii. Benchers of Grays Inn, ' Bx parte Northington, 37 Ala. Doug. 353. 496. CHAP. III.] TO INPEEIOE COURTS. 171 inconsistent therewith, where the case has been properly pre- sented to them and they have either granted or refused the application for removal, i Any attempt to control or reverse by mandamus the rulings of the inferior courts upon such applica- tions, may justly be regarded as a flagrant violation and abuse of the well established functions of the writ.^ § 226., Various reasons have been assigned in support of the rule by the different courts in which it has been recognized and applied. Thus, the writ has been refused in such cases on the ground that, if any coercive action should be necessary to procure the removal, it should naturally come from the United States courts, rather than from the state tribunals. ^ So it has ' Francisco v. Manhattan Insur- ance Co. 36 Cal. 283 ; Shelby v. Hoflf- man. 7 0hio St. 450; States. Curler, 4 Nev. 445; People d. Judges of New York Common Pleas, 2 Denio, 197; People v. Judge of Jackson Circuit Court, 21 Mich. 577. But see, contra. Brown v. Crippin, 4 Hen. & M. 173 ; State v. Judge of Thirteenth District, 33 La. An. 29. And see Orosco «. Gagliardo, 22 Cal. 83. In Kennedy v. Woolfolk, 1 Overt. 453, the court were divided as to whether the duty of the state court to order the removal of a cause to the federal court upon proper application was a ministerial or a judicial duty. And in Campbell v. Wallen's Lessee, Mart. & Yerg. 366, it was held that where the state court had refused to allow the removal, its decision might be reversed on appeal to the supreme court of the state, which court might order the cause to he sent to the federal court. ' Francisco v. Manhattan Insur- ance Co. 36 Cal. 383. ' People V. Judge of Jackson Cir- cuit Court, 31 Mich. 577. Camp- BBLii, C. J., denying the jurisdiction in such cases, says : "We are also unable to discover any propriety in resorting to the writ of mandamus of this court to correct the action of a circuit court in a case, under the act of congress. If any coercive action should be deemed necessary to transfer proceedings into the courts of the United States, it should naturally come from United States authority; and if the result can not he reached without the intervention of some writ, we find it difficult to believe that the remedy can be de- pendent on the discretion of a state court. In all cases where writs are expressly mentioned for purposes of removing cases into United States courts, they issue returnable there. There is no writ of certiorari or mandamus known to the common law, issuing from one jurisdiction to courts within it for the removal of causes into another jurisdiction. Certiorari is the proper writ for re- moving records from one court into another for trial, and is the writ ex- pressly authorized to be issued by United States courts, for removing thither certain cases from state courts under the act of 1833. 4 U. S. Stat. 633. But whether certiorari 172 MANDAMUS. [PAET I, been refused t.n the ground that, if granted in such cases, it would necessarily lead to a conflict of jurisdiction between the state and federal courts.' So, too, it has been withheld for the reason that mandamus is not a proper remedy to review the action or to correct the errors of inferior courts upon questions which they have judicially determined, and that where the court has erroneously refused to allow the removal of the cause to the federal courts, and has entertained jurisdiction and pro- ceeded to trial and judgment, the proper remedy is by writ of error or appeal, to review the rulings and judgment of the court below. ^ § 227. As regards the power of the circuit courts of the United States over the state courts of general jurisdiction, to compel them to allow the removal of a cause into the federal courts, while the existence of such a power has been asserted as necessary for the exercise of the jurisdiction of the United States courts,^ yet the doctrine may now be regarded as too or mandamus would be appropriate for this purpose, it is certainly more seemly that they should not depend on the discretion of any tribunal not holding its commission from the authority creating the right of re- moval. The United States supreme court has never, that we can find, decided expressly, upon a case aris- ing under the statute in question, that the circuit courts of the United States may issue the proper writ, if any is required, but the principle has been asserted distinctly that a summary remedy exists, and, if so, there can be no special difiiculty in ascertaining it. Gordon v. Longest, 16 Pet. B. 97. And we think the view taken by the supreme court of New York in the case of The Peo- ple «. The Judges of the N. Y. Com- mon Pleas (3 Denio, 197), refusing a mandamus, is in accordance with good sense. We should feel dis- posed to go as far as possible to prevent a failure of any right, but we do not perceive any such neces- sity in these cases." Still stronger ground is taken in The People v. Judges of New York Common Pleas, 3 Denio, 197, where it is as- serted as the undoubted prerogative of the courts of the United States to issue the writ of mandamus in all cases necessary for the exercise of their jurisdiction, and hence in the class of cases under consideration. But the authority of this case, upon this point, is entirely overborne by Hough V. Western Transportation Co. 1 Bissell, 425, infra. ' Francisco v. Manhattan Insur- ance Co. 36 Cal. 383. ' Shelby v. Hoffman, 7 Ohio St. 450 ; State v. Curler, 4 Nev. 445. ' Spraggins v. County Court of Humphries, Cooke, 160; People v. Judges of New York Common Pleas, 3 Denio, 197. And see People v Judge of Jackson Circuit Court, 2) Mich. 577. CHAP. III.J TO INFERIOR COTJKTS. 173 well established to admit of question, that such power does not exist. And while it is believed to be within the power of congress to confer upon the circuit courts of the United States jurisdiction to compel by mandamus the removal of causes from the state into the federal courts, yet such power is not now possessed by the circuit courts, either under the judiciary act of 1789, or under the act of 1866, * providing for the removal of cases from the state to the federal courts. They will not, therefore, attempt by mandamus to review the deci- sion of a state court upon an application of this nature, or compel it to remove the cause to the federal tribunal. ^ The appropriate remedy in such case is by appeal to the supreme court of the state, and thence to the supreme court of the United States. ^ ' 14 V. S. Statutes at Large, 306. ' Hough u. Westera Transporta- tion Company, 1 Bissell, 425 ; In re Cromie, 2 Biasell, 160 ; Ladd v. Tudor, 3 W. & M. 326. But see, contra, Spraggins v. County Court of Humphries, Cooke, 160. ' Hough V. The Western Trans- portation Co. 1 Bissell, 435. This was an application by the defendant, a foreign corporation, sued in the state courts, to the circuit court of tlie United States, for a mandamus to compel the state court to remove the cases to the federal tribunal. The right of the circuit court to interfere in such case was denied by Drummond, J., in an exhaustive opinion which may be regarded as having set at rest the previously unsettled authorities upon the sub- ject. He says: "The question is, whether, under the circumstances of the case, the mandamus will lie. I think it will not. Of course, in expressing this opinion, it is not necessary for the court to determine whether the state court decided properly in refusing the application made by defendant. * * It is a little singular that throughout our judicial history there has been, so far as we have been able to ascer- tain, but one application made to the circuit court of the United States for this writ, where a state court has refused to comply with the 12th section of the judiciary act. That case was the case in Tennessee, and is referred to in the case of The People V. The Judges of the New York Common Pleas, reported in 2 Denio, 197. This case grew out of the case of Kanouse v. Martin, 15 How. 198, which was commenced in a state court of New York, and where the application was made to the state court to remove the cause to the circuit court of the United States. After the application was made the plaintiflf amended his de- claration so as to make the amount in controversy less than five hun- dred dollars, and thereupon the application was refused. The case went to the highest court of the state, and thence to the supreme court of the United States. Tlie 174 MANDAMTTS. [paeI' § 228. A distinction has been recognized between the action of a state court in refusing to order the removal of a cause to the federal court, and in refusing to accept surety tendered for such removal. And vrhile, as we have just seen, mandamus will not lie to the state court from its appellate tribunal in the former case, the writ may be granted in the latter. Thus, under the act of congress of March 3, 1863, providing for the supreme court of the United States reversed tlie case on the ground that the application should have been granted, and that whenever it was made the statute interposed, and de- clared that if it was within the meaning of the 13th section of the judiciary act, it was not competent for the state court to take any other step in the case, and that it did, after the application was made, by allow- ing this amendment, and that was an erroneous act. Judgment was therefore reversed, and it was held that it was the duty of the court to look into the whole record and to determine whether the case was within the provision of the l?th section of the judiciary act. That was a case, as I understand it, in which the counsel for defendant, instead of applying to the circuit court of the United States for a man- damus, applied to the supreme court of the state for a mandamus. The opinion of the court was given by Bkonson, C. J., denying the appli- cation, on the ground that the 14th section of the judiciary act gave the circuit court of the United States power to issue the writ of man- damus, and therefore the applica- tion should be made to that court, and not to the supreme court. In this opinion they refer to the only case to which the notice of this court has been directed, which is the case of Spraggins v. County Court of Humphries, Cooke, 160. The judge says : ' I am not aware that any of the federal courts have questioned their power to act in the same manner. If they have power, there is no reason why this court should interfere.' He says, also, ' I am aware that the court of appeals in Virginia awarded a mandamus to an inferior court in that state to compel the removal of a cause into the circuit court of the United States. Brown «. Crippin, 4 Hen. & Munf. 173. ' But,' he says, ' until it shall be settled that the federal courts want the power to issue all such writs as may be necessary for the exercise of the jurisdiction conferred upon them by the constitution and laws, this court can not act without the appearance of making an offi- cious tender of its services.' It was for this reason that the motion for mandamus was refused. I admit that the case proceeds upon the ground that the proper source to apply to for -i. writ of mandamus was the circuit court of the United States, and not to the state court. The question then is whether that is a proper source. I think that the view of the judge was incorrect. * * * It will be seen, from what has been said, that there is a remedy for the party; he is not without redress ; he can take his exception ; CHAP. III.J TO IWFEEIOE COURTS. 175 removal to the federal courts of suits begun in the state courts, for acts done iinder the authority of the president of the United States during the rebellion, the act of accepting surety for the removal is not regarded as an act of judicial discretion, and if the court refuses to accept of surety, and refuses to relinquish jurisdiction of the case, mandamus will lie.i § 229. Mandamus lies from the supreme court of the United States to the court of claims, to compel the latter to hear and determine a motion for a new trial. ^ And the writ will lie from the supreme court to a district court of the United States, to compel it to execute its decree, notwithstanding a state legislature has attempted to annul such decree on the ground that the federal court had not jurisdiction, since the states will not be allowed to determine the jurisdiction of the United States courts.^ So the state courts may, and sometimes will, interfere by mandamus in aid of a decree of the federal courts. Thus, where the United States district court, sitting in bank- ruptcy, decrees a sale of mortgaged premises and a cancellation of the mortgages, but the recorder of mortgages refuses to release them in compliance with such order, mandamus will lie from the state court to compel obedience to the mandate of the district court.* And where it is the plain and impera- tive duty of a county treasurer, under the laws of the state, to pay a judgment against the county out of funds in his hands which have been collected for that purpose, the fact that the judgment was rendered in the federal courts, will not prevent the state courts from interfering by mandamus to enforce the supreme court of the state can have done that, either hy express give him redress if the lower court language or by necessary implicar has decided wrong, and if that court tion, I do not think that this court ■will not, the supreme court of the ought to exercise a doubtful power." United States may. It is true this ' State v. Court of Common Pleas, is a circuitous way to have any sup- 15 Ohio St. 377. posed wrong remedied, but still I ^ Ex parte United Sjiates, 16 Wal. think it is the only way in which 699. it can be done. The congress of the ' United States «. Peters, 5 Cranch, United States have not seen fit to 115. give this summary remedy by writ * Conrad ». Prieur, 5 Eob. La. 49 ; of mandamus, if it was competent Benjamin v. Prieur, 8 Rob. La. 193 ; for them to do it, and until they Diggs v. Prieur, 11 Rob. La. 54. 176 MANDAMUS. [PAKT payment. 1 So the writ will lie from the state courts to compel the authorities of a town to levy a tax for the payment of a judgment recovered against the town in the United States courts. 2 ' Brown v. Crego, 33 Iowa, 498. ^ State «. Supervisors of Beloit, 30 Wis. 79 ; State ». City of Madison, 15 Wis. 30. The principles upon which the state courts will interfere in aid of proceedings in the federal tribunals are very clearly stated by Mr. Justice Paine, in State «. City of Madison, as follows : " This was an application for a writ of man- damus to compel the common coun- cil of Madison to levy a tax for the purpose of paying a judgment which the relator has recovered against the cit}' in the district court of the United States for the district of Wisconsin. The counsel for the city moved to quash the alternative writ. No question was made as to the validity of the judgment, and disposing of the case upon the ques- tions raised, we can see no good reason for granting the motion. The use of the writ of mandamus to compel corporate authorities to levy a tax, the levying of which is a specific duty imposed upon them by law, and in respect to which they have no discretion to exercise, is well established, and indeed was not questioned. Commonwealth i>. Councils of Pittsburg, 34 Penn. St. Rep. 509. In an amendment to the charter of the city, found as Chap. 119, Pr. Laws, 1856, it is provided that whenever a judgment is recov- ered against the city, 'the same shall be levied and collected as other city or ward charges,' etc. This imposes it as a, specific duty on the common council to levy and collect a tax to pay any valid judg- ment against the city, and the fact that if this is not done within a specified time execution may issue, does not make the duty any the less specific or binding. Why, then, should they not be compelled by mandamus to perform this duty? Simply, it is said, because the judg- ment is that of a United States court instead of a state court. And in support of this position several cases were cited, to the effect that the state courts consider the judg- ments of the United States courts as standing on the same footing with judgments of the courts of other states. And the case of Tarbell o. Griggs, 3 Paige, 807, was also relied on, in which it was held that a creditor's bill would not be enter- tained in a state court, in aid of a judgment recovered in a federal court in the same state, on which an execution had been returned unsatisfied. But it will be observed that even in that case, the chancellor intimated that he might have re- tained the case upon the suggestion of any sufl3cient equitable ground for it. He said; 'This court, upon the principle of comity, has gone so far as to compel a discovery from persons residing in its jurisdiction, in aid of the prosecution or defense of a suit pending in the court of a sister state. And I am not prepared to say it might not, upon the same principle of comity, interfere to aid the parties in the collection of a judgment of a court of the United CHAP. III.] TO INPBRIOE COURTS. 177 V. MiNisTEEiAii Functions of Couets. § 330. Mandamus lies for ministerial duties. 231. When granted to compel approval of bonds. 232. When court may be compelled to audit or pay claims. 233. Erection of public buildings. 234. Illustrations of the general rule. 235. Writ granted to compel entering of judgment. 236. Judgment on report of referee ; effect of appeal. 287. Bridges; highways; railroads. 238. When granted to clerks of court. , § 230. It has already been shown that as to all matters of a judicial nature and resting within the limits of judicial dis- cretion, mandamus is not an appropriate remedy, and that the courts uniformly refuse to interfere by this species of relief. States or of a sister state, upon any sufficient grounds of equity appear- ing upon the face of the bill, to show that the exercise of such a jurisdiction was necessary to pre- vent a failure of justice.' And on the other hand, it was held in Wil- kinson et al. V. Yale et al. 6 McLean, 16, that the federal courts would entertain a creditor's bill founded on a state court judgment, and inti- mated that the state courts could properly do the same with respect to federal judgments. Which of these two cases has the better reason we do not deem it necessary to de- cide. For, even though the case in Paige be correct we do not think it would sustain the conclusion that a state court should not issue a man- damus to compel a state ofScer to perform a specific duty imposed on him by a state law, merely because the right sought to be protected originated in the judgment of a United States court. Suppose a 12 register refuses to record a patent issued by the United States, or the clerk to file a transcript of a judg- ment of the United States court, should a state court refuse to issue a mandamus to compel them on the ground that the party had acquired the right which he was seeking to protect from the United States gov- ernment in some of its departments ? Such a plea would seem to us un- worthy of a moment's considera- tion. And we can not see that it ought to have any more force as applied to the question presented; here. If the federal court had juris- diction in a suit against the city, and could render a valid judgment against it, then it must be assumed that' the law imposed upon the council the duty of collecting a tax to pay such a judgment as well as any other. And whenever the state itself imposes on its own oflScers specific duties in respect to judgBj«nts, that is a good reason 178 MANDAMUS. [PAET I. either to control or regulate in any manner the discretion of inferior courts as to matters properly presented to them in a judicial capacity. But it not unfrequently happens that duties devolve upon courts or judges, either by operation of law, or by positive statute, which partake more of a ministerial than of a judicial nature, and where the duty is so plain and imper- ative that no element of discretion can enter into its perform- ance. And while the courts uniformly refuse to interfere with the discretion of inferior tribunals in the performance of their duties, yet as to acts to be performed by a court or judge in a merely ministerial capacity, or as to duties which are obligatory upon them by express statute, and as to which there can be no dispute, and no element of discretion, mandamus is an appro- priate remedy, and will be granted to compel the performance of the act or duty.^ § 231. Frequent instances of the application of this rule occur in eases of official bonds, which are by law required to be approved by a particular court or judge, and where public officers are required by law to give a bond with satisfactory surety to the state, before entering upon the performance of their duties, and a particular court is designated, whose duty it is made to approve of the bond, the approval is not regarded as the exercise of such a judicial function as to preclude control why the state courts should compel tion 103) ; Madison Co. Court •». Alex- a performance of those duties. It ander, 1 Miss. 523; Cuthbert«.Lewis, does not' become the court to be 6 Ala. 363; Chicago, B.&Q.R. Co. «. more scrupulous in respect to en- Wilson, 17 III. 138; Commonwealth forcing a performance of the duty v. Court of Sessions, 2 Pick. 414; than the state was in creating that Manor v. McCall, 5 Geo. 522; Daw duty in the first place. For these son v. Thruston, 3 Hen. & M. 132; reasons we think the motion to Manns s. Giveus, 7 Leigh, 689; State quash must be overruled, with ■». Judges of Salem Pleas, 4 Halst. costs." 246; Randolph v. Stalnaker, 13 ' State B. Burgoyne, 7 Ohio St. Grat. 528 ; Commonwealth «. Bunn, 153; States. Ely, 48 Ala. 568; State 71 Pa. St. 405; Commonwealth v. V. Lafayette Co. Court, 41 Mo. 331 ; Justices of Fairfax Co. 2 Va. Cas. 9 ; 8. C. lb. 545 ; State v. Howard Co. Commonwealth v. Justices of Kan- Court, lb. 347; State®. County Court awha Co. lb. 499. See also Life & of Texas Co. 44 Mo. 230 ; Beck v. Fire Ins. Co. v. Wilson's Heirs, 8 Jackson, 43 Mo. 117; County of Pet. 291; Illinois Central R. Co. d. Boone v. Todd, 3 Mo. 140, (2nd edi- Rucker, 14 111. 353. CHAP. III.J TO INFERIOE COURTS. 179 by mandamus. The approval or rejection of the bond in such case, though coupled, it is true, with some degree of discretion, is held to be essentially a ministerial act, and as such man- damus will lie to compel its performance. ^ Indeed, there would seem to be no other remedy adequate to redress the griovance.2 So where it is made by law the duty of an inferior court to approve the bond of its own clerk, mandamus will lie, the proceeding not being regarded as one for the purpose of testing the right to the office, but merely a demand that the court shall perform its plain duty.^ And in such case, the commission issued by the governor of the state to the relator, is treated as prima facie evidence of his title to the office, and a sufficient foundation for proceedings in mandamus to compel the approval of his bond.* But in all such cases, it would seem to be the more correct practice, not to command the inferior court peremptorily in the first instance to approve of the bond tendered, but the alternative writ should be so framed as to command the court to proceed and act upon the applica- tion, and to hear the evidence offered as to the sufficiency of the sureties, and to approve them if sufficient. ^ § 232. In some of the states the auditing and payment of claims for public services rendered to a county are made the duty of the inferior courts, such as county courts, and in such cases the same rule applies, and the duty may be enforced by mandamus. 8 Thus, where a county court is required by law to settle and adjust all claims against the county for services rendered, the writ will be granted to compel such court to pro- ceed and audit a claim for services duly performed.'' And. such courts may be required by mandamus to proceed to adjudicate upon claims against the county which they have improperly ' State u. Lafayette Co. Court, 41 ' State v. Howard Co. Court, 41 Mo. 231; S. C. lb. 545; State i>. Mo. 347. County Court of Texas Co. 44 Mo. <■ Madison Co. Courts. Alexander, 230; States. Ely, 43 Ala. 568; Beck 1 Miss. 533; County of Boone b. t. Jackson, 43 Mo. 117. Todd, 3 Mo. 140, (3nd edition, 103.) » State B. Ely, supra. And see Cuthbert v. Lewis, 6 Ala. ' Beck V. Jackson, 43 Mo. 117. 263. 4 jj ' Madison Co. Court d. Alexander, 1 Miss. 523. 180 MANDAMTTS. [PAKT I. refused to pass upon or allow. * But where tlie amount of the claim is a matter whose determination rests in the judicial discretion of the court, it will not be directed to allow the claim at a specific sum, but only to proceed and audit the claim, leaving the court unti-ammeled as to the amount which shall be allowed. 2 Where it is made the duty of the court to issue its warrant upon the county treasurer, for the payment of a claim against the county which has been properly allowed, mandamus will lie for a refusal to perform this duty.^ And the same rule applies where the duty of directing the pay- ment of a claim against a county, is incumbent upon an inferior tribunal of a quasi-judicial nature, and if the validity of the claim has been established by the proper authority, no element of discretion remains to be exercised in drawing the order for payment, and the duty may be enforced by man- damus.* § 233. The erection of public buildings sometimes affords occasion for the exercise of the jurisdiction, and where it is made by statute the imperative duty of an inferior local court to provide a suitable house of correction for the county, the duty not being of a judicial nature, and not calling for the exer- cise of any discretion, its performance may be compelled by mandamus. ' So where commissioners are appointed by act of legislature, to provide for the erection of county buildings, and the duty of levying a tax for defraying the expenses of the commissioners is made incumbent upon a local court, man- damus will lie to enforce its performance, it being a fixed and specific duty, not resting in the discretion of the court. ^ § 234. "Where it is made incumbent upon the justices of a county court to receive proof of certain deeds and to admit them to record, their duties in this regard are treated as purely ministerial and their performance may be coerced by man- ' Bx parte Taylor, 5 Ark. 49 ; 140, (2nd edition, 103.) Brem ». Arliansas Co. Court, 9 Ark. ■■ Cuthbert v. Lewis, 6 Ala. 263. 240. " Commonwealth ». Court of Ses- ' Id. sions, 2 Pick. 414. 3 County of Boone «. Todd, 3 Mo. » Manor ». McCall, 5 Geo. 523. CHAP. III.] TO INFERIOR COURTS. 181 damns. 1 And where it is the duty of a county court to admit to record the report of the county surveyor in relation to lands sold by the sheriff for unpaid taxes, and the court is without authority to inquire into the regularity or validity of the sheriff's sale, mandamus will be granted to compel the admis- sion of the report for record. ^ § 235. The writ has sometimes been granted to compel the entering of judgments, where nothing remained but the mere ministerial duty of making the proper entry. ^ And where an inferior court, acting in a judicial capacity, has found all the facts necessary to a judgment or decree, so that the judgment would be a mere conclusion of law upon the facts found, the entering up of the proper judgment is regarded as only a min- isterial act, to enforce which mandamus is the appropriate rem- edy.* So where the verdict of a jury has been rendered in a cause, in due form, and it is responsive to the issues presented and is supported by evidence, mandamus may be allowed to compel the court to enter judgment upon the verdict, the duty of entering judgment in such case being regarded as an abso- lute duty on the part of the court, unaccompanied with any element of judicial discretion.' And where an inferior court is by law deprived of the power of setting aside verdicts and granting new trials, and it is the plain duty of such court to enter judgment upon a verdict rendered, as to which it has no discretionary powers, if it has, nevertheless, set aside a verdict and granted a new trial, mandamus will lie to compel the court to give judgment upon the verdict.' Again, where a judg- ment, under the rules of the court and the laws of the state, can not be enforced until attested by the signature of the judge, and is not a final judgment on which error will lie until wit- nessed by such signature, mandamus will lie to compel the signing of the judgment, it being regarded, not as a judicial, ' Dawson v. Thruston, 2 Hen. & 60 ; Smith v. Moore, 38 Conn. 105 ; M. 133; Manns v. Givens, 7 Leigh, Brooke «. Ewers, Stra. 113. 689. * Williams v. Saunders, 5 Cold. 60. " Randolph «. Stalnaker, 13 Qrat. ' Lloyd v. Brinck, 35 Tex. 1. 628. « Cortleyou v. Ten Eyck, 3 Zab. 45. ' See Williams®. Saunders, 5 Cold. 182 MANDAMUS. [PABT I. but merely a ministerial act.^ And tlie writ may issue, in sucli a case, to the successor of tlie judge before whom the judgment was obtained, since the court remains unchanged, notwithstanding the change of incumbents. ^ § 236. Upon similar principles the writ has been allowed to compel a court to enter up judgment upon the report of a referee.^ But it will not be granted for this purpose where the court must still exercise its discretion in granting or with- holding the relief prayed.* And it is a sufficient return to the alternative writ directing the entry of judgment, that the cause has been removed by appeal beyond the jurisdiction of the court to which the writ is directed, since the appeal deprives such court of all power to act in the cause. ^ § 237. "Where a county court is entrusted by statute with the power of determining upon the necessity of building bridges in the county, its functions in this respect are purely minis- terial and it may be compelled by mandamus to biiild a bridge.* So where it is the duty of the court, upon proper application, to appoint certain surveyors of highways, such ai)pointment may be enforced by mandamus.'' And where the judge of an inferior court is required by statute to appoint com- missioners to condemn lands for railway purposes, the writ will lie to compel such judge to make the appointment, the duty being regarded as merely ministerial.** § 238. While there are cases where the writ has been granted to compel the clerk of a court, treating him as a min- isterial officer, to issue an execution, ' yet the writ will not lie for this purpose where it is not shown that an application had first been made to the court in which the judgment or decree ' Life & Fire Insurance Co. v. Fairfax Co. 2 Va. Gas. 9 ; Common- Wilson's Heirs, 8 Pet. 391. wealth v. Justices of Kanawha Co. = Id. lb. 499. ^ Russell v. Elliott, 3 Cal. 245. ' State v. Judges of Salem Pleas, ' Ludlum «. The Fourth District 4 Halst. 346. Court, 9 Cal. 7. » Chicago, B. & Q. R. Co. v. Wil- » Commissioners of La Grange son, 17 111. 138. And see Illinois Co. I). Cutler, 7 Ind. 6. Central R. Co. v. Rucker, 14 111. 353. « Commonwealth v. Justices of » See Chapter II, Subdivision V. CHAP. III.j TO INFEEIOE COUETS. 183 was obtained, and that it had been rejected by that court. ^ Nov will mandannas go to the clerk of a court to compel the issuing of an execution upon a judgment rendered against a county, since a county, being a municipal corporation, created by law for public and political purposes, is a part of the government of the state and partakes of the sovereignty of the state, and is not, therefore, subject to execution.^ Nor will the writ go to the clerk of a court, directing the perform- ance of duties of a quasi-judicial nature, such as the approval of official bonds of county officers, the duty being one which requires the exercise of judgment and discretion, and not a mere ministerial act.^ So if a plain and adequate remedy exists by action at law against the clerk, upon his official bond, mandamus will not lie.* VI. Justices of the Peace. § 239. Mandamus granted to set justices in motion. 240. Granted for ministerial duties. 241. And to compel entering of judgment. 342. And issuing execution. 243. When granted to allow appeal. 244. Eeport of referees. 245. Granted to perfect record ; and to deliver copy. § 239. The principles upon which the courts interfere by mandamus with justices of the peace, are not essentially different from those which regulate the interference with courts of record, and which have been considered in the previous ' Compton V. Airial, 9 La. An. 496. ' Swan v. Gray, 44 Miss. 393. Oth- " Gooch V. Gregory, 65 N. C. 142. erwise, however, where the clerk is And see Lutterloh «. Commission- vested with no discretion as to the ers of Cumberland Co. 65 N. C. 403. approval of the bond, and his duty The appropriate remedy, in such is imperative. Guliok i>. New, 14 case, is held to be by mandamus Ind. 93 ; People v. Fletcher, 3 Scam, against the county authorities to 483. levy a tax in payment of the judg- * Goodwin v. Glazer, 10 Cal. 338. meat. 184 MANDAMTJS. [PAET I. subdivisions of this chapter. "We have there seen that the writ will lie to set courts in motion, where they have refused to act, and to compel them to exercise their rightful jurisdic- tion. The same rule applies to justices of the peace, and they may be compelled by mandamus to hear and determine matters properly within their jurisdiction and properly brought before them.i Thus, the writ will issue to justices of the peace to compel them to enforce a particular statute, whose enforcement is made their duty by law.^ But it is to be observed, while the writ is freely granted to compel justices to perform their duties, yet it will not lie where it is apparent that the performance of the act required would render the justices liable to an action. ^ § 240. As regards the performance of duties of a minis- terial nature, incumbent upon justices of the peace, no reason is perceived why they should be placed upon any other footing than those of ministerial officers in general. And where it is made by statute the duty of certain magistrates to administer an oath of insolvency to a debtor seeking his discharge under the insolvent laws of the state, no discretion being reserved to the justices, and their duty being purely ministerial, man- damus will lie to compel them to administer the oath.* JSfor will the relief be withheld in such case, even though the magistrates show by their return that they were of opinion that the debtor had concealed certain property which it was his duty to disclose.^ § 241. While, as to the hearing and determining of judi- cial matters properly presented to them and within their jurisdiction, justices of the peace are regarded strictly as judicial officers, yet as to the entering of judgments their duties and functions are considered as merely ministerial, cor- responding in this respect with the duty of the clerk of a court of record in entering the judgment of the court. Hence the ' Rex V. Tod, Stra. 580; King v. 615. And see King v. Mirehouse, 2 Mountague, 1 Barn. K. B. 73. Ad. & E. 632. ' King D. Mountague, supra. * Harrison v. Emmerson, 2 Leigh, ' King v. Dayrell, 1 Barn. & Cress. 764. 485; King v. Greame, 3 Ad. & E. ' Id. CHAP. III.] TO IWFEEIOE COTJRTS. 185 act of entering the judgment, not being a judicial act, may be enforced by mandamus, and the return of the justice to the alternative writ, that he has made a true record of the judg- ment, is not conclusive or final, i So, vrhere a justice has exceeded his jurisdiction and powers by setting aside a verdict and granting a new trial, the writ will be granted to comj)el him to enter judgment in the cause in conformity with the verdict rendered. ^ And the writ lies to compel a justice to enter a judgment of discontinuance in a cause, which he has refused on the ground of non-payment of fees, where he is not legally entitled to the fees.^ But it does not lie to compel a justice to alter the entry of a record upon his docket.* § 242. The right of the plaintiff to an execution upon his judgment before a justice of the peace, is such a right as may be enforced by mandamus in a proper case.^ Thus, where after judgment rendered the justice has made a conditional order, allowing the defendant to come in and defend upon payment of costs, and defendant has failed to comply with the condition, plaintiff's right to an execution becomes absolute and may be enforced by mandamus to the justice.' And where a defendant has appealed from a judgment, in a case in which no appeal properly lies, the entire proceedings under the appeal are coram non judice, and mandamus will be granted to require the justice to issue an execution.'' § 243. The right of appeal from a justice's or magistrate's court may, in a proper case, be enforced by mandamus. And where a party convicted in a magistrate's court is entitled absolutely to an appeal from such decision to a higher court, but this right is denied and the appeal refused, he may procure redress by mandamus. * And where an appeal has been properly taken, mandamus will go to compel the justice to certify the appeal in due form to the higher court. » But, in ' Smith D. Moore, 38 Conn. 105. « Terhune ». Barcalow, 6 Halst. ' Forraan ®. Murphy, Pen. 1034. 38. » Anderson ■». Pennie, 33 Cal. 365. ' Laird «. Abrahams, 3 Green, 32. * G-arnett ». Stacy, 17 Mo. 601. « Bx parte Morris, 11 Grat. 393. ' Laird ». Abrahams, 3 Green, 33; ' Town of Orange v. Bill, 39 Vt. Terhune t. Barcalow, 6 Halst. 38. 443. 186 MANDAMUS. [PAET 1. cunformity with the well established rule that mandamus does aot lie where another specific and adequate remedy exists, it will not be granted to compel a justice to allow an appeal, where another and suflBcient remedy is provided by statute to compel the allowance of the appeal, i § 244. Where a justice of the peace, acting within the scope of his authority, has rejected a report of referees, though he may have decided upon insufiicient reasons, his judgment is to be considered as a subsisting judgment until reversed by due process of law, and mandamus will not lie to compel him to accept the report, there having been no refusal or delay in giving judgment such as would warrant the writ.^ § 245. Mandamus has been held the appropriate remedy to compel a justice of the peace to perfect his record. ^ So it has been granted to compel such officer to deliver a copy of a recognizance to a person entitled thereto.* VII. Special Illtjsteations of the Jueisdiction. g 346. Mandamus to compel the granting of appeals. 347. Not granted to compel dismissal of appeal. 248. Appeal from order of sale of partnership effects. 349. Mandamus to receive verdicts and enter judgments. 250. Lies to compel court to proceed with trial of cause. 351. The general rule and illustrations thereof. 253. Want of jurisdiction in subordinate court. 253. Rule as to courts of only appellate jurisdiction. 254. Mandamus not granted where oth'ur remedy exists. 255. Granted to procure compliance with order of superior coui-t. 256. Granted to compel hearing of motion. 257. General conclusion; decision not interfered with. 358. Use of the writ as between federal courts. 259. When refused to ofiBcer of subordinate court. 360. Effect of other litigation; granting of administration; probate of will. 361. Correction of errors in decree. 362. Election for removal of county seat. ' State V. McAuliffe, 48 Mo. 113. ' Ballou v. Smith, 29 N. H. 530. ' Petition of Farwell, 3 N. H. 133. ■■ Id. CHAP. III. J TO INFERIOR COURTS. 187 363. Insufficient security upon appeal. 364. Mandamus to compel holding court at proper time and place. 365. Granted to compel examination in bankruptcy. 366. When granted in aid of habeas corpus. 367. Damages for property taken in construction of highway. 368. Not granted where authority of special court has expired. 369. Laches of party aggrieved a bar to relief. 370. Consent of parties not sufficient foundation for writ. 371. Dismissal of cause in pursuance of military order. 373. Dismissal for want of security for costs; answer to interrogatories; substitution of attorney. 373. Parties in interest should be notified. 374. Degree of interest required. 375. To whom the writ should be addressed. § 246. The power of courts of original jurisdiction over the granting or refusing of appeals has given rise to frequent applications for the extraordinary aid of the appellate courts by mandamus. Upon this subject the authorities are far from reconcilable, and it is difficult to deduce from the decided cases any rule susceptible of general application. In Louisiana, the writ is freely granted to compel the allowance of appeals, and the courts of that state have extended the jurisdiction in such cases to its extreme limits.* And in the same state, where the right of appeal is given, not only from iinal judgments, but from all interlocutory judgments which may cause irre- parable injury, the writ will issue to compel a subordinate court to grant an appeal from an order dissolving an injunc- tion, the court having refused to allow the appeal on the ground of insufficiency of the security offered.^ So, in Arkan- sas, it is held that mandamus is the appropriate remedy to compel the granting of an appeal which the court below has improperly denied, the relator having complied with all the requirements of the law entitling him to the appeal. ^ ' See State v. Judge of Sixth Dis- State v. Judge of Eighth District trict Court, 33 La. An. 119 ; Same v. Court, 34 La. An. 599. Same, lb. 130; State v. Judge of "State «. Judge of Fourth Dis- Fourth District Court, lb. 90 ; State trict Court, 31 La. An. 736. V. Judge of Fifth District Court, 33 = Mx pwrte Martin, 5 Ark. 371 ; La. An. 713 ; State v. Judge of Sec- Beebe ®. Lockert, 6 Ark. 433. ond District Court, 34 La. An. 596 ; 188 MANDAMUS. [PAET 1. § 247. While the writ, as we have thus seen, is sometimes granted to compel the allowing of an appeal, it will not lie to compel subordinate courts to reinstate appeals which they have dismissed. Such dismissal, whether made in accordance with a rule of practice of the inferior court not unlawful in itself, or done in the exercise of a judicial discretion, is held equally beyond control by mandamus, and the party aggrieved will be left to his writ of error. i And it is a sufEcient objec- tion to interposing by mandamus in such a case, that the court in dismissing the appeal has acted according to the dictates of its own judgment, since, while the writ is freely granted to compel courts to act, it will not lie to compel the perform, ance of any particular act, nor to control in any degree the exercise of judicial discretion.^ Nor will a subordinate court be compelled by the writ to dismiss an appeal on the ground that it has been improperly entertained, since if such court irregularly sustains an appeal and proceeds to hear and deter- mine the matter in controversy, redress may be obtained by certiorari. * § 248. Where an inferior court, pending litigation for the dissolution of a partnership, has a right to order a sale of the partnership effects, and has accordingly granted an order of sale, and has refused an appeal from such order, it will not be required by mandamus to allow the appeal.* § 249. The writ will go to compel a court to receive a ver- dict of a jury. Thus, where the jury found for defendants, but also found as a part of their verdict that defendants should pay the costs of suit, which was plainly beyond their powers, so much of the verdict as related to costs was treated as sur- plusage, and the writ was granted to compel the court to receive the verdict. ^ So it has been awarded to require an ' Sinnickson ». Corwine, 2 Dutch, lee, 1 Har. (N. J.) 348. 311 ; Wells v. Stackhouse, 3 Har. ' Commonwealth ®. Judges of the (N. J.) 355 ; Commonwealth ?). Judges Common Pleas, 3 Binn. 273. of the Common Pleas, 3 Binn. 273. 'Jones v. Allen, 1 Green, 97. But see, contra, Pfeas «. Jones, 1 * State ». Judge of Third District Har. (N.J.) 358; Adams®. Mathis, 3 Court, 6 La. An. 484. Har. (N. J.) 310; Ten Eyck i). Far- ' State v. Knight, 46 Mo. 83. CHAP. III.] TO INTERIOR COURTS. 189 inferior court to proceed to judgment upon a verdict. ^ And where a verdict is found for plaintiff, but judgment is arrested because of insufficiency of the pleadings, the court may be required by mandamus to enter up judgment against the plaintiff, for the purpose of enabling him to bring a writ of error. 2 "Where, however, the verdict has been set aside and the parties have proceeded to a new trial upon the merits, and plaintiff is then non-suited, it is too late for him to seek relief by mandamus to compel the court to proceed to judgment upon the former verdict in his favor. In such a case, having submitted to a new trial, he is regarded as having waived all right to the interposition of the higher court. ^ And in no event should the writ be granted peremptorily, to compel the court to enter judgment upon a verdict, without notice to the defendants against whom the judgment is sought, since their rights are directly affected by the proceedings, and they should, therefore, be allowed an opportunity of being heard.^ § 250. Mandamus lies to compel inferior courts to proceed with the trial of causes which they have delayed without suf- ficient reason, the plaintiff in a cause having an absolute right to a determination of his action. ^ And the writ has been issued to compel a subordinate court to reinstate a case on its trial docket and to proceed with the trial.® And where by the charter of a railway company it is provided that the owner of any land taken by the company, who may feel aggrieved with the assessment of damages, shall be entitled to an appeal to the court of common pleas of the county, which shall review the proceedings and determine the amount of the dam- ages in a summary way, such court may be required by man- damus to proceed and determine the appeal, where it has delayed action without adequate cause.'' But, while it is con- ' Brooke v. Ewers, Stra. 113 ; ' People d. De La Guerra, 43 Cal. Lloyd V. Brinck, 35 Tex. 1. 225. ' Pish V. Weatherwax, 3 Johns. ' Sanders v. Nelson Circuit Court, Cas. 315. ■ Hardin, 3nd edition, 19. » Weavel v. Lasher, 1 Johns. Cas. ' Budd v. New Jersey R. R. & 241. Trans. Co. 3 Green, 467. * State V. Mills, 37 Wis. 403. 190 MANDAMUS. [PAET I. ceded that the writ is the proper remedy to eominand an inferior court to pi'oceed with the trial of a cause, on a proper case being shown, it will not issue without an affidavit, since it is not to be presumed that the inferior court has delayed justice.^ Where, however, the affidavit shows that the court having jurisdiction of the matter refuses to act, no sufficient reason being shown for such refusal, mandamus vnll lie, for example to compel the probate of a will.^ § 251. Indeed, the rule may now be regarded as well estab- lished, that mandamus' lies in all cases to compel an inferior court to proceed to the trial of a cause, and to set it in motion, where it has unreasonably delayed the proceedings, or where its refusal to proceed amounts to a denial of justice.^ The object of the writ in this class of cases is not to compel a par- ticular decision, but merely to set the court in motion, and to require it to exercise its undoubted jurisdiction, and when this is done its full purpose is accomplished.* In illustration of the rule, it is held, where a court has refused to proceed on the ground that other parties, who are uriknown, may be interested in the subject matter and should be made parties to the suit, that mandamus will lie, on the ground that the refusal of the court to proceed amounts to a delay of justice. ^ So the writ has been granted to compel a court to proceed with a cause, when it has improperly granted an order staying all proceedings and such order is not appealable.^ So, too, where the court has allowed a continuance without due cause, it has been held a proper case for a mandamus to compel it to proceed.'' § 252. ISTotwithstanding the writ is freely granted to com- pel subordinate courts to proceed with the trial of causes, yet the superior tribunal will withhold its interference where the court below has refused to proceed on the ground of a want ■ Ourser B.Smith, 1 Barn. K.B. 59. 243. See also People v. De La ' Justice V. Jones, 1 Barn. K. B. Guerra, 43 Cal. 225. 280. " In re Turner, 5 Ohio, 542. ^ State V. Judge of Commercial ' State ®. Judge of Commercial Court, 4 Eob. La. 227 ; In re Tur- Court, 4 Rob. La. 227. ner, 5 Ohio, 542; Rhodes «. Craig, « Rhodes ». Craig, 21 Cal. 419. 21 Cal. 419 ; Dixon v. Feild, 10 Ark. ' Dixon v. Felld, 10 Ark. 243. CHAP. III. J TO IJSrrERIOR COUETS. 191 of jurisdiction, and it is not alleged that it has refused to take any action whatever. Since such court, though it may Iiave refused to proceed to trial for want of jurisdiction, might not refuse to dismiss the cause for the same reason, and if dis- missed the relator would have his legal remedy by appeal from the order of dismissal. ^ § 253. "Where the court of last resort of a state is vested only with appellate jurisdiction, it can not issue the writ to compel an inferior court to proceed with a cause pending therein, since this would be the exercise, not of an appellate, but of an original jurisdiction, and the granting of the writ in such cases is not necessary to aid in the discharge of the func- tions of the court as a purely appellate court. ^ JSTor will a court of purely appellate powers, and authorized to issue only such writs as are necessary and incident to the exercise of its appellate jurisdiction, grant a mandamus to compel any official action on the part of officers of a subordinate court, since in all such cases the application should be made to the inferior court itself.3 It may, however, in aid of its appellate juris- diction, and as a necessary incident to its exercise, issu^e a man- damus commanding the inferior court to sign and seal a bill of exceptions, in order that the record of the cause, of which the appellate court has jurisdiction by appeal, may be com- pleted, the purpose of the writ in such a case being merely to perfect the right of the party appealing.* § 254. In conformity with the general principle that man- damus does not lie where other adequate remedy exists at law in the ordinary course of proceedings, the writ will not be granted to compel the judge of an inferior court to pay over moneys received by him in his official capacity to the parties entitled thereto, the remedy by action against the judge or against the sureties upon his official bond being deemed ade- quate.^ And where an inferior court is entrusted by law with ' State V. Smith, 19 Wis. 531. •• State v. Hall, 3 Cold. 255. And 'King V. Hampton, 3 Hayw. see State v. Elmore, 6 Cold. 528; (Tenn.) 59 ; State v. Biddle, 36 Ind. Newman v. Justices of Scott Co. 1 138. And see Cowell «. Buckelew, Heiskell, 787. 14 Cal. 640. ' State v. Meiley, 23 Ohio St. 534. ' Cowell V. Buckelew, 14 Cal. 640. 192 MANDAMUS. [PART I. the duty of levying certain taxes for school purposes, and it has passed upon the matter and levied the tax, its decision can not be corrected by mandamus because of insufBciency in the amount levied, the proper remedy being by appeal. ^ § 255. An inferior court or judge refusing to proceed according to the mandate of the superior court, may be required by mandamus to proceed, though in such ease a peremptory writ will not issue in the first instance upon eso parte state- ments, but only a rule to show cause. ^ In such case it affords no justification to the inferior court that it acted upon the impression that the judgment of the higher tribunal was erro- neous.^ And the fact that the judge of the court below had been of counsel to one of the parties to the controversy, does not, of itself, disqualify him from executing the mandate of the appellate court, and constitutes no objection to the grant- ing of a mandamus.* And the writ will lie from an appellate to a subordinate court to compel the latter to make an order for costs in conformity with the decision of the appellate tribunal previously rendered. ^ § 256. The peremptory writ of mandamus will issue to compel an inferior court to hear and determine a motion pre- sented by the relator, where the return of such court to the alternative writ admits the filing of the motion as alleged, and affords no excuse or reason for the refusal to hear and determine the matter." § 257. The obvious conclusion to be drawn from all the cases in which the extraordinary aid of a mandamus has been extended, to compel subordinate courts to act upon matters within their jurisdiction and properly presented for adjudica- tion, is that the relief will be granted only where the courts have refused to act, and then merely for the purpose of setting them in motion, and not to control or in any manner dictate what their action shall be. It is, therefore, a sufficient objec- • County Court ». Eobinson, 37 * State v. Collins, 5 Wis. 339. Ark. 116. » Jared v. Hill, 1 Blackf. 155. ^ State «. Collins, 5 Wis. 339 ; « Austen «. Probate & Common Johnson v. Glascock, 3 Ala. 519. Pleas Court, 35 Mo. 198. 'Id. CHAP. III.] TO INFEEIOR COIIKTS. 193 tion to the interference in such cases, and constitutes a suffi- cient return to the alternative writ, that the court has already acted upon and decided the particular matter in controversy. ' And upon such return the superior court will not investigate the propriety or correctness of the decision of the court below, nor inquire whether its action was erroneous. ^ And, in gen- eral, it may be said that whatever views the higher court may entertain as to the propriety of the action of the court below upon judicial matters properly presented to that tribunal, it will not interfere to compel the performance of an act which such court, acting in a judicial capacity, has refused. Thus, where the lower court has refused to issue a warrant for the arrest of a person charged with the commission of a crime, upon the ground that the evidence presented was insufficient to authorize the arrest, mandamus will not lie to correct such decision, or to compel the issuing of the warrant.^ § 258. The writ will lie from the supreme court of the United States to a district court, to compel it to reinstate a case which it has dismissed on the ground that the pleadings contained no allegations of the value of the matter in dispute, and that it did not therefore appear that the cause was within the jurisdiction of the court, where the action is not for the recovery of a money demand, but for the recovery of lands. In such case it is not necessary that the value of the thing demanded should be stated in the pleadings, but it may be properly proven in evidence, and the district court may be compelled in such a case to reinstate the cause and to hear and determine it, to the end that the party aggrieved may have the final judgment of the supreme court, if the value of the land in controversy should be sufficient to entitle him to a ' Queen v. Old Hall, 10 Ad. & E. cause instituted therein, on th,e 248. ground of its insufficiency, the re- 2 Id. lief being granted on the ground " United States v. Lawrence, 3 that the court, by its refusal to Ball. 42. But see, contra, Barnett V. quash the bond, had deprived the Warren Circuit Court, Hardin, 2nd relator of a right for which the law edition, 180, where an inferior court furnished him no other remedy was compelled by mandamus to than mandamus, quash a bond for costs, given in a 13 194 MANDAMUS. , [PAET I. hearing in that court, i But since the power of circuit courts of the United States to issue the writ, extends only to cases where it is necessary for the exercise of their jurisdiction, they will not interfere to compel a district court to vacate a rule allowing certain amendments to the record in a cause there pending, such a use of the writ not being in aid of the jurisdiction of the circuit court. ^ § 259. A state court of final resort will not interfere by mandamus to compel a subordinate court to direct one of its own officers to execute a decree, the enforcement of which that court has enjoined. In such case, the officer being enjoined by his own court from enforcing the decree, can not be com- pelled by the higher tribunal to violate the injunction.* An additional reason for refusal of the relief in such a case, is found in the principle heretofore considered, that a writ of mandamus confers no authority, and only issues to compel a party to perform an act which is his plain duty without the writ.* § 260. The existence of other litigation in another forum, affecting the matter which is the foundation of the proceed- ings in mandamus, may sometimes operate as a bar to relief by this extraordinary writ. And it has been refused where it was sought to compel the granting of administration, it being shown that a contest was already pending as to a pretended will of the deceased. ^ But subsequent litigation will not be allowed to affect proceedings for mandamus already instituted, and where the writ has been issued to compel the probate of a will, it will not be superseded by the fact that litigation con- cerning the will was instituted after the issuing of the writ.' § 261. Mandamus will not go to compel the judge of a sub- ordinate court to strike from a decree certain words which he has inserted therein, after the decree was signed, where the effect of the words inserted is not such as to injure the parties 'Ex parte Bradstreet, 7 Pet. 634. 'Steward v. Eddy, 7 Mod. Eep. See S. C. 8 Pet. 588. 143. ' Smith 1). Jackson, 1 Paine, 453. ' King v. Bettesworth, 7 Mod. Rep. » People V. Gilmer, 5 Gilm. 242. 219. •Id. CHAP. III.] TO IWPERIOK COURTS. 195 in any way, the court having acted in good faith and merely for the purpose of correcting a supposed clerical error, since in such case the relator shows no specific legal right which will be injured by the act which he seeks to correct, i § 262. Where a statute providing for the location of a county seat, makes it the duty of the county judge to canvass the returns of the election upon the question of location, the power of determining whether the elections have been held and the returns properly made in the diflferent precincts, and of determining as to the sufficiency of the returns and their genuineness, is regarded as of a judicial nature, and therefore mandamus will not go to compel such judge to receive returns which he has already passed upon and rejected. ^ § 263. Where a court has accepted of insufiicient security upon an appeal from its decree, mandamus has been granted to compel it to proceed with the execution of the decree, not- withstanding the appeal and the order of the court that the appeal bond should operate as a supersedeas.^ And where a statute gives an appellant from a judgment of a justice's court the right to substitute a new appeal bond in lieu of the original bond returned by the justice, biit the court in which the appeal is pending refuses to allow the substitution of the new bond, it may be compelled so to do by mandamus.* § 264. Mandamus would seem to be the appropriate rem- edy to compel the holding of a term of court at the time pre- scribed by law, where great injury is likely to residt from the refusal of the court to hold the term, and in such case the party aggrieved has no other adequate and specific remedy. ' And the writ will go to compel the holding of a court at the place designated by law for that purpose.' § 265. Commissioners in bankruptcy, whose duties partake of a judicial nature, may be required by mandamus to issue • their warrant for the further examination of a bankrupt who ' State V. Larrabee, 3 Chand. 179. ■■ Garrabrant v. McCloud, 3 Green, " Arberry s. Beavers, 6 Tex. 457. 462. ' Stafford v. Union Bank of Louis- ' SJx parte Trapnall, 6 Ark. 9. iana, 17 How. 275. * County of Calaveras v. Brock way, 30 Cal. 325. 196 MANDAMUS. [PAET I. has been committed for not satisfactorily answering at a prev- ious examination, but who is afterwards desirous of having a farther examination for the purpose of making full disclosure of his affairs.! § 266. Where, under the laws of a state, a prisoner in cus- tody before indictment found, has a right to be heard on habeas oorjms touching the question of his guilt, but the court refuses to hear the evidence offered, it may be compelled by mandamus to hear and consider the evidence.^ But in such a case the writ in no manner interferes with the exercise of the discretion or judgment of the court to which it is addressed, and the power of the superior court is exhausted when it requires the court below to hear and consider the evidence, without compelling it to render any particular decision.* § 267. Where a court has ordered the appropriation of private property for public purposes, as the land of a private citizen in opening a public highway, and the damages for the property taken have been properly assessed by a jury, the court may be required by mandamus to order the amount of dam- ages so assessed to be paid in accordance with law, there being ■ no other specific, legal remedy.* § 268. In conformity with the general principle denying relief by mandamus where the writ, if granted, would prove inoperative, it will be refused where sought against a court acting under a special commission which has expired.^ § 269. Laches of the party aggrieved in seeking to avail himself of the remedy by mandamus may operate as a bar to relief. Thus, where a party had permitted a period of five years to elapse after the final determination of a cause, before seeking relief by mandamus, it was deemed inexpedient to interpose.' And it has been held that even a year's acquies- cence in the proceedings complained of was sufiicient to prevent relief by mandamus.'' ' In re Bromley, 3 Dow. & Ky. 310. miner, 30 "Wend. 108. ' E. Erb, 4 Gill, 437. 6 Lansing, 172. CHAP. IV.] TO PRIVATE COBPOEATIONS. 211 cient cause for disfranchising a corporator, and the courts deal with the churches only in their corporate and not in their religious capacity. ^ But the writ will not be granted against an ecclesiastical corporation, to compel the restoration of a member to his standing and rights of membership, before a final decision by the church judicatories, since the ecclesiastical courts are the best judges of what constitutes an offense against church discipline. * § 299. The office or position of a trustee in an eleemosy- nary corporation, such as a school founded by voluntary con- tributions, is regarded as a franchise of such a nature that mandamus lies to restore an incumbent who has been improp- erly removed from the office.' And this is so, even though no profit attaches to the office, and no pecuniary loss is incur- red by being deprived of the exercise of its functions.'* And the writ has been allowed to restore one to a clerkship in an incorporated trading company, from which he has been im- properly removed. 5 § 300. While, as we have thus seen, the courts freely inter- pose by mandamus in cases of a wrongful amotion from cor- porate franchises, to warrant this relief it must clearly appear that the corporator is actually denied the enjoyment and exercise of his franchise, and it is not sufficient to warrant the interference, that he is merely restricted in the mode of its exercise. Thus, a refusal to allow a member to speak or vote at successive corporate meetings, being only a restriction upon the mode of exercising his rights, and not an actual exclusion from the corporation, affi)rds no ground for a mandamus.' § 301. Mere informality in the proceedings of a corpora- tion for the removal of a member, especially if such informal- ity is caused by his own action, will not justify interference by mandamus, where it is evident that there were just grounds for his amotion, and that he has been acting in hostility to the corporation, and seeks a restoration only to continue his oppo- ' Id. " H. « German Eeformed Church v. ° White's case, Ld. Baym. 1004. Seibert, 3 Pa. St. 283. « Crocker v. Old South Society, = Fuller ■». Trustees, 6 Conn. 533. 106 Mass. 489. 212 MANDAMUS. [PAET I. sition to its interests. > Nor will the peremptory writ be awarded, to restore one to a corporate office, however irre- gularly he may have been removed, where it is shown in the return to the alternative writ that there was good ground for removal, and where it is apparent that the relator, if restored to his franchise, might be again immediately removed.^ § 302. Where an incorporated medical society is vested by its charter and by-laws with jurisdiction to inquire into and pass judgment upon the conduct of its members, and to expel them for sufficient cause, where the proceedings in the expul- sion of a member for unprofessional conduct appear to have been conducted with due deliberation, and the offending mem- ber has been allowed ample opportunity to be heard in his defense, there being no evidence of haste or prejudice in the proceedings against him, or that the corporation acted in viola- tion of his rights, mandamus will not lie.* § 303. In England, in case of offices of an ecclesiastical nature, over which the ecclesiastical courts have full jurisdic- tion, the civil courts will not interfere by mandamus. Thus, the kings bench will not grant the writ to the- doctors com- mons, to restore a proctor to his office, but will leave him to his remedy in the ecclesiastical courts.* § 304r. Where proceedings in mandamus are instituted to test the right of amotion from a corporate body, and the cor- poration is commanded by the alternative writ to restore the relator to his franchise, the return should set forth positively and without evasion or inference the particular facts relied upon in justification of the corporate action, in order that it may appear whether the relator was properly removed and for legal and sufficient cause. All facts relating to the conviction and amotion should be shown, as well those relating to the cause of removal as to the form and mode of procedure. ^ In ' State V. Luaitanian Portugese » Green v. African Methodist So- Society, 15 La. An. 73. ciety, 1 S. & R. 354; Society v. The " King V. Griffiths, 5 Barn. &• AM. Commonwealth, 53 Pa. St. 135. And 731. see Commonwealth «. Guardians of ' Barrows i). Massachusetts Medi- the Poor, 6 8. & R. 469 ; Common- cal Society, 13 Gush. 403. wealth v. The German Society, 15 * Lee's case, Carth. 169. Pa. St. 351. CHAP. IV. J TO PEIVATB OOBPORATIONS. 213 other words, facts should be alleged in the return, and not mere conclusions ft-om facts. It is not sufficient, therefore, that the corporation should allege that the relator was tried and expelled by a " select number " of the corporators, but it should be shown from what source this select number derived their authority, and in what manner they were appointed, that the court may determine whether the proceedings were con- ducted in acc(ordance with law.i Nor is it a sufficient com- pliance with the rule, for the corporation to allege in its return that the relator was expelled " according to the terms of the constitution and by-laws," which are referred to and made by reference a part of the return. Such a return is plainly insuffi- cient, since the facts necessary to show the course of procedure are only inferable from the return, and a corporation will not be allowed to shield itself behind a return which seeks to constitute the corporate body itself the sole judge of the regularity of its proceedings. ^ § 305. Suspension from a corporate franchise, as well as actual amotion, has been held a sufficient ground for invoking the extraordinary aid of the courts by mandamus, and the writ has been granted against the board of directors of a chamber of commerce, to prevent them from depriving a member of his franchise by suspension. ^ But a distinction is taken between an actual removal from a corporate office, and a sus- pension which does not deprive the party of the possession of his office, but only excludes him from participation in the pro- fits of the corporation, without impairing his possession of the office, or his right to attend and vote at corporate meet- ings. And in the latter case, mandamus will not lie to restore the party aggrieved, since he has his remedy by an action for the tort against those who have disturbed him in the receipt of his profits.* - Green v. African Methodist ' State «. Chamber of Commerce, Church, sv^ra. 30 Wis. 63. * Society v. The Commonwealth, ' King v. Company of Tree Fish- 53 Pa. St. 135. . ers, 7 East, 353. 214 MANDAMUS. [PAKT III. CoEPOEATE Books and Recoeds. g 306. Mandamus lies to compel surrender of corporate books and records. 307. Production of books at corporate meeting ; stockholder must show interest. 308. Writ granted for inspection of books. 309. Refused in England to trading corporation. 310. Not granted for mere curiosity ; demand and refusal necessary. 311. To whom the -nrit should run. 312. Judgment creditor of corporation entitled to inspection. 313. Mandamus not granted to compel transfer of shares to purchaser on corporate books. 314. Departures from the rule. § 306. The control of the courts over the books and re- cords of incorporated associations, and the jurisdiction by mandamus to procure their delivery to or their inspection by the persons or officers properly entitled thereto, are, as we shall hereafter see, very freely exercised in cases of municipal or public corporations. But the jurisdiction is not confined to corporations of a public nature alone, and is frequently exer- cised in the case of purely private corporations, for the protec- tion of their officers and members, where they would be remediless in the ordinary course of proceedings at law. And the rule is well established, both upon principle and authority, that mandamus will lie to compel the surrender and delivery of corporate books and records to the officers properly entitled thereto. And where the term of office has expired, either by removal, or by lapse of time, and the officer refuses to sur- render the corporate records and documents to his successor duly elected and entitled to their custody and control, man- damus will go to compel the delivery, i Thus, it will be granted to compel the clerk and treasurer of a religious corporation, who have refused on the expiration of their term of office to deliver the corporate records to their successors, to compel ' American Railway Prog Co. v. Slack, 7 Cush. 226 ; Rex v. Wild- Haven, 101 Mass. 398 ; State v. Goll, man, Stra. «79 ; Anon. 1 Barn. K. B. 3 Vroom, 385 ; St. Luke's Church v. 403. CHAP. IV.] TO PEIVATE COEPOEATIOKS. 215 such delivery. 1 So it will be granted upon the relation of a private manufacturing company, to require tlie surrender of its books and papers to the officers duly elected and entitled to their custody. 2 Nor will the fact that the corporate offices are then filled by actual incumbents, holding the offices de facto, and in possession of the books, and exercising the functions of the offices, avail against the exercise of the jurisdiction. ^ And since the possession of the officer is regarded as the pos- session of the corporation, it is no sufficient objection to grant- ing the writ that he has purchased the books with his own funds, nor will the relief be withheld because the corporation is still indebted to the officer for the purchase price of the books, or for arrears of salary.* § 307. The rule has been extended to compel the attend- ance of a corporate officer with the books of the corporation at a meeting thereof. ^ But a stockholder will not be allowed by mandamus to compel the company to keep its books of account at the principal office or place of business of the corporation, where he fails to show any personal injury to himself resulting from the keeping of the corporate books elsewhere.' § 308. Mandamus is the appropriate remedy to enforce the rights of corporate stockholders and members to an inspection of the books and records of the incorporation, and the writ will issue for this purpose upon a proper showing of the relator's right and a refusal on the part of the corporate authorities to allow the inspection.' Thus, the writ will be granted to compel the cashier of a bank to submit the books of the bank to the inspection of one of the directors.^ ISTor is it sufficient ' St. Luke's Church «. Slack, 7 People ». Pacific Mail Steamship Cush. 226. Co. 50 Barb. 280. '^ American Railway Frog Co. v. * People «. Throop, 12 Wend. 183. Haven, 101 Mass. 398. The relator, on an affidavit that he > Id. was one of the directors of the Cayu- * State B. Groll, 3 Vroom, 285. ga County Bank, and that the cashier ° In re Borough of Calne, Stra. had refused to permit him to inspect 948. and examine the discount book of « Pratt B. Meriden Cutlery Co. 35 the bank, obtained a rule that the Conn. 36. cashier submit the book to his in- ' People B. Throop, 13 Wend. 183; spection, or show cause why a man- 216 MANDAMUS. [PABT I. ground for refusing the mandamus, that the book which it is sought to inspect is a book of accounts between the company and its shareholders, and therefore regarded as confidential, or that the information which it contains might be used for improper purposes. ^ § 309. The English rule is somewhat stricter, and confines the jurisdiction to narrower limits than is the case in this coun- try. And the court of kings bench will not grant the writ to ' a mere trading corporation, such as the Bank of England, upon the application of an individual member, to compel the direc- tors of the corporation to produce their accounts and to divide their profits, since this would be, in effect, to allow one of several partners to compel his copartners, by mandamus, to produce th'eir accounts of profit and loss, and to divide the profits. Such an object can only be accomplished by a bill in chancery, and the writ of mandamus will not be granted for this purpose.^ § 310. It is to be borne in mind in the exercise of that branch of the jurisdiction by mandamus now under discussion, that the writ will not be granted merely to enable a corporator to gratify an idle curiosity in the examination of the corporate records, but he must show some specific interest at stake ren- dering the inspection necessary, or some beneficial purpose for which the examination is desired. And unless there is some damus should not issue. "It must his co-directors, is a question not be conceded," says Savage, C. J., presented; and if such an action " that if the relator has a right to would lie, that would be no objec- the inspection of the books of the tion to a mandamus in the present bank, a mandamus is the appropri- state of the case. If there is a right ate and the only remedy at law. on the part of the relator to examine The oases cited by counsel show the books, either with reference to that in case of removal or suspen- his own safety, or with a view to sion from corporate rights, a man- the proper execution of the trust damus is the proper remedy. No reposed in him by the stockholders, action at law lies in such a case, then this is the remedy, and the under its present circumstances ; only remedy In a court of law." whether an action might not be > People d. Pacific Mail Steam- maintained in case actual individual ship Co. 50 Barb. 280. damages should be the consequence ' King v. Bank of England, 2 of the conduct of the defendant and Barn. & Aid. 669. OHAP. IV.] TO PEIVATB COEPORATIOWS. 217 particular matter in dispute between members of the corpora- tion, or between the corporation and its individual members, or some specific pui-pose for which the inspection is necessary, mandamus will not lie, since the courts will not permit the use of the writ upon merely speculative grounds, or to gratify a spirit of curiosity. ^ ]S"or will the writ be granted unless the relator shows that he has made a proper demand upon the proper parties having the records in custody, and that such demand was made at a fitting time and place and for a suffi- cient reason, and that the inspection was refused. ^ § 311. As regards the person to whom the writ should be directed where an inspection of corporate records is sought, the proper practice is to address it to the one actually having the custody of the books and records, even though he is merely a ministerial officer acting under the direction of others, as in the case of a bank cashier acting under a board of directors. In such case the rule applies that the writ should run to the partic- ular person who is to perform the act required, and the cashier having charge of the books, his refusal to allow their inspec- tion is his individual act, and the writ is therefore properly addressed to him.^ Though there can be no impropriety in such a case in directing the writ also to the board of directors.* § 312. The same relief may be allowed in behalf of a judg- ment creditor, where it is necessary for the proper enforcement of his rights under his execution. And where, under the laws of the state, a judgment creditor of an incorporated company is entitled to an execution against such shareholders as have not paid their shares, in satisfaction of his judgment, he may be allowed the aid of a mandamus to compel the company to permit an inspection of its books, for the purpose of ascertain- ing who are the shareholders, and the amount remaining unpaid on their respective shares.^ ' People 1). Walker, 9 Mich. 328; King i). Wilts Canal Co. 3 Ad. & E. Hatch «. City Bank of New Orleans, 477. 1 Rob. La. 470; King v. Merchant ' People «. Throop, 13 Wend. 183. Tailors Co. 3 Barn. & Ad. 115. * Id. ' People «. Walker, 9 Mich. 828 ; ' Queen v. Derbyshire etc. R. Co 3 El. & Bl. 784. 218 MANDAMUS. [part I. § 313. In conformity with the general principle that man- damus will not lie where other adequate and specific remedy may be had at law, the courts refuse to lend their interference by this extraordinary writ for the purpose of compelling the transfer to a purchaser of shares of capital stock upon the books of an incorporated company, or to compel a company to issue certificates of stock. In all such cases full and complete satisfaction, equivalent to specific relief, may be had by an ordinary action at law to recover the value of the stock, and the existence of such other remedy is a complete bar to the exercise of the jurisdiction by mandamus, where it does not appear that the particular stock in question possesses any especial value over other stock of the corporation, i § 314. A departure from tlie rule as laid down in the pre- ceding section is sometimes allowed, where, under the peculiar special action on the case, to recover the value of the stock, if the bank have unduly refused to transfer it. There is no need of the extraordin- ary remedy by mandamus, in so or- dinary a case. It might as well be required in every case where trover wouldlie. It is not a matter of pub- lic concern, as in the case of public records and documents: and there can not be any necessity, or even a desire of possessing the identical shares in question. By recovering the market value of tliem, at the time of the demand, they can be re- placed. This is not the case of a specific and favorite chattel, to which there might exist the preti- um affectionis. The case of The King D. The Bank of England, Doug. 524, is in point, and this remedy in that case was denied. Motion de- nied." In Regina s. Midland Coun- ties & Shannon Junction R. Co. 9 L. T. R. N. S. 151, the writ was re- fused to compel the transfer on the ground of infancy of the purchaser. ' Shipley v. Mechanics' Bank, 10 Johns. Rep. 484 ; Bx parte Fireman's Insurance Co. 6 Hill, 243 ; State «. Rombauer, 46 Mo. 155; Baker ■». Marshal, 15 Minn. 177 ; Kimball v. Union Water Co. 44 Cal. 173; King •0. Bank of England, Doug. 534. But see, contra. State ii. Mclver, 2 Rich. N. S. 25 ; Regina v. Midland Counties & Shannon Junction R. Co. 9 L. T. R. N. S. 151, where it is held that the duties of oflScers of a railway company to make the trans- fer of stock upon the books of the company in favor of a purchaser, are of such a nature as to warrant the writ to compel such transfer, the ordinary remedy by action being held insufficient. The rule, how- ever, as laid down in the text, is supported by the clear weight of au- thority, and commends itself as more in harmony with t|^e general principles governing the law of mandamus. As is said by the court in Shipley n. Mechanics' Bank, 10 Johns, hep. 484, "The applicants have an adequate remedy, by a CHAP. IT.J TO PRIVATE COBPOEATIOWS. 219 circumstances of the case the corporate officer, whose duty it is to make the transfer of stock upon the books of the company, occupies for the time being the relation of a public officer, upon whom are imposed public duties of such a nature as to warrant the interference by mandamus. For example, where it is pro- vided by statute that in case of a levy upon and sale of shares of capital stock under execution, it shall be the duty of the proper officer of the corporation, upon presentation of the cer- tificates of sale of such shares, to make the necessary transfer upon the books of the company, and to give the purchaser such evidence of title to the stock purchased as is usual and neces- sary with other stockholders, mandamus will lie to compel the performance of the duty. In such a case the corporate officer is regarded, pro Kac vice, as a public officer, entrusted with the performance of a public duty, and thus subject to the control of the courts by mandamus. ^ So 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 shares in the company, leaving all doubts as to the question of the right to the shares so disposed of to be shown by the corporation in its return to the writ.^ And where the duty is incumbent upon a corporation by the terms of its charter to enter upon the reg- ister of the corporation the names of all the owners of its cap- ital stock, this duty may be enforced by mandamus.* But the writ will not lie to enforce the transfer upon the corporate books of shares of capital stock purchased by the relator under proceedings in attachment, where the shares have been prev- iously transferred and new certificates have been issued to a person showmg prima yaoie title thereto, before the proceed- ings in attachment were issued. The relief, in such case, is refused on the ground that mandamus never lies except in a plain ease.* ' Bailey v. Strohecker, 38 Geo. 259. pany, 8 El. & Bl. 512. ' Rex V. Worcester & Birmingham * State v. "Warren Foundry and Canal, 1 Man. & Ry. 529. Machine Company, 3 Vroom, 439. " Norris v. The Irish Land Com- 220 MANDAMUS. [PAKT IV. Kailwats, Canals and Public Impeovements. § 315. Mandamus formerly granted to compel completion of railway. 316. The English rule reversed. 317. An open question here ; hut writ may be granted after completion of railway. 818. Writ granted for damages for land taken. 319. Construction of bridges enforced by mandamus ; remedy by indict- ment no bar. 330. Railway crossings and approaches thereto. 331. Contract obligations not enforced by mandamus. 323. Writ granted for delivery of grain to warehouse. § 315. The extent to which the courts may properly inter- fere with corporate bodies engaged in works of public improvement, such as railways, docks and canals, and may control their action for the purpose of compelling them to carry out the terms and perform the conditions of their char- ters, forms an interesting branch of the law of mandamus, and has given rise to some conflict of authority. The doctrine was formerly maintained by the court of kings bench, that where an incorporated company, such as a railway, chartered by act of parliament, with compulsory powers for taking the necessary lands in the construction of its road, had exercised its right of eminent domain, and had entered upon and com- pleted a portion of its line, mandamus would lie at the suit of a land-owner whose land had been taken, or who might be prejudiced by the non-completion of the road, to compel its completion. The reasoning upon which the court interfered in such cases was, that the railway, having exercised the extraor- dinary powers conferred upon it over the lands of private per- sons, could not be considered merely in the light of an ordinary purchaser of lands, at liberty to convert them to any purposes which it might see lit, but that an imperative obligation was thereby created on the part of the corporation, to devote the land taken to the purposes for which it was acquired,which obligation CHAP. ly.J TO PRIVATE COEPORATIOWS. 221 could only be adequately enforced by mandamus.* And it was held, too, that the relief might be granted at the instance of a shareholder in the company, as well as an adjoining land- owner. ^ § 316. The principle, however, thus attempted to be estab- lished by the kings bench, was afterwards overthrown on error to the exchequer chamber, and the English rule may now be regarded as well settled, that mandamus will not lie in this class of cases. And where a railway company is incorporated, with the usual grants of the right of eminent domain, and permission is given the company to construct its road as pro- posed, such permission imposes no imperative duty upon the corporation to proceed with the work, the statute being con- strued as permissive and not obligatory. IS'or does the accept- ance of its charter by the railway company create such a con- tract with the public, or with individual land-owners, as to make it obligatory upon the company to construct the road proposed.* And though acts of incorporation of railway com- ' Queen v. York& North Midland R. Co. 1 El. & Bl. 178, reversed on error in the exchequer chamber, lb. 858; Queen «. Eastern Counties R. Co. 10 Ad. & E. 531 ; Queen v. York, Newcastle & Berwick R. Co. 16 Ad. & E. N. S. 886; Queen a. Great "Western R. Co. 1 El. & Bl. 253, re- versed on error in the exchequer chamber, lb. 874. And see Queen 0. Bristol Dock Co. 3 Ad. & E. N. S. 64. But see Queen v. Rochdale & Halifax Turnpike, 12 Ad. & E. N. 8. 448; Queen v. Bristol & Exeter R. Co. 4 Ad. & E. N. S. 162; King v. Brecknock Canal Co. 3 Ad. & B. 317. ^ Queen v. Ambergate etc. R. Co. 17 Ad. & E. N, 8. 863. » York & North Midland R. Co.b. The Queen, 1 El. & Bl. 858, revers- ing same case lb, 178 ; Great West em R. Co. v. The Queen, 1 El. & Bl. 874, reversing same case lb. 353. York & North Midland R. Co. v. The Queen, is the leading English case upon the doctrine under dis- cussion. This was a writ of error to the exchequer chamber, from a judgment of the queens bench, upon a demurrer to a return to a man- damus, commanding the plaintiff in error, the defendant below, to pur- chase lands and make a railway from Market Weighton to Cherry Burton, pursuant to its act of incor- poration. The-court below had ren- dered judgment for the prosecutors, and awarded a peremptory man- damus to complete the railway. (See Queen c. York & Narth Mid- land R. Co. 1 El. & Bl. 178.) In 1846, the plaintiff in error had ob- tained an act of parliament, empow- ering it to construct a railway upon a certain route. A portion only of the line was constructed, when the act expired, before the mandamus 222 MANDAMUS. [PAET I. panies are frequently spoken of as contracts, they can not, strictly speaking, be construed as such, where they confer only conditional powers. In such cases, the powers, if acted upon, carry with them corresponding duties, but, if not acted upon, they are not regarded as imperative upon the companies. To was applied for. In 1849, another act was obtained, authorizing the company to abandon the former line, and to substitute a new one. Two prosecutors, or relators, joined In the application for mandamus, one a land-owner on the proposed new line, whose land had been taken, the other a land-owner on the for- mer line. The points raised were: 1. "Whether the act of 1849 made it the duty of the company to con- struct the railway. 2. If not, whether, under the circumstances, a contract existed between the com- pany and the relators, which could be enforced by mandamus. 3. Fail- ing these propositions, whether the work which in its inception was permissive only, became obligatory by part performance. Upon the for- mer point, the court held, upon a critical examination of the act of parliament, that no imperative obli- gation was cast upon the company to construct the road. The words of the statute being enabling, or per- missive, and not obligatory, and the compulsory power of taking the land being limited to three years, and the time for making the rail- way to five years, it was held to be optional with the company, whether the road should be completed or abandoned. Upon the other two propositions, the court, Jbbvis, C. J., say : " But it is said that a rail- way act is a contract on the part of a company to make the line, and that the public are a party to that con- tract, and will be aggrieved if the contract may be repudiated by the company at any time before it is acted upon. Though commonly so spoken of, railway acts, in our opin- ion, are not contracts, and ought not to be construed as such: they are what they profess to be, and no more ; they give conditional powers, which, if acted upon, carry with them duties, but which, if not acted upon, are not, either in their nature or by express words, imperative upon the companies to whom they are granted. Courts of justice ought not to depart from the plain mean- ing of words used in acts of parlia- ment : when they do so, they make, but do not construe, the laws : and, if it had been so intended, the statute should have required the company to make the line in express terms : indeed some railway acts are framed upon that principle : and to say that there is no difference between words of requirement and words of author- ity, when found in such acts, is simply to affirm that the legislature does not know the meaning of the commonest expressions. * * It seems to us, therefore, that these statutes do not cast upon the plain- tiflfs in error this duty, either by ex- press words or by implication : that we ought to adhere to the plain meaning of the words used by the legislature, which are jjermissive only ; and that there is no reason in policy or otherwise why we should endeavor to pervert them from their CHAP. IV.] TO PRIVATE CORPORATIONS. 223 assert the existence of a contract between the land-owners and the company, by which the latter is bound to complete its road, is only begging the question, since, as between these parties, the real issue is whether there is such a contract, and this can not be inferred from a permissive or enabling statute. It fol- natural meaning. But itis said that the land-owners are in a better situ- ation than the public at large, and that the privilege to take their lands is the consideration which binds the company to complete the railway; that during the currency of the three years they are deprived of their full right of ownership, and, if not to be compensated by the construction of the railway, they would in many cases sustain a loss, because, whilst the compulsory powers of purchase subsist, they are prevented from alienating their lands or houses de- scribed in the book of reference, and from applying them to any purposes inconsistent with the claim which may be made to them by the rail- way company. In truth they are not prevented from so doing, at any time before the notice to take their lands is given, if they act bona fide, in the meantime, the notice to take their lands being the Inception of the contract between the land-own- ers and the company. But, if this complaint were better founded, it does not follow, merely because cer- tain land-owners are subjected to a temporary inconvenience for the ad- vancement of a public good, that therefore the company are bound to make the whole railway. If it were a contract between the land-owners and the company, it would not be just that one should be bound and the other free: but to assert that there is a contract between the land- owners and the company is to beg the whole question; for upon this part of the case the question is whether there is such a contract. As a matter of fact, we know that in many cases no such actual contract exists. Some few proprietors may desire and promote the railway : but many others oppose it, either from a disinclination to the project, or with a view to make better terms. "With the dissentients there is no contract unless it be found in the statutes : and to the statutes, there- fore, we must refer to see what is the obligation which is cast upon the company in respect of the land- owners upon the line. As in the former case, the words upon this subject are permissive only. The company may take land : if they do, they must make full compensation. In this state of things, if there be a bargain between the parties, what is that bargain? The company say, in the language of the statutes, that they shall make full compensation for the land taken and no more ; the prosecutors say that the considera- tion to be paid for the land is the full compensation mentioned in the act, and also the further considera- tion of an entire line of railway from York to Beverley. But, if this is the price which the prosecutors are to have, each land-owner is entitled to the same value; and yet, by this mandamus, the other proprietors on the line from Market Weighton to Cherry Burton, who perhaps are hostile to the application, are con. 224 MANDAMUS. [PAKT r. lows necessarily from these views, that where a railway com- pany, tinder an act of incorporation creating no compulsory obligation to construct its road, has completed the principal portion of its line, and has then abandoned the residue because it passes through a country thinly populated, where the road, if constructed, would not prove remunerative, mandamus will strained to sell their land for an in- adequate considerati on : viz. a full compensation, and a part only of the line of the railway, to which, by the hypothesis, they were entitled by the original bargain. If this were the true meaning of the stat- utes, it would indeed be unjust: more so than the imposition of those temporary inconveniences, to which it is said the land-owners may be subjected, and to which we have already referred. But that it is not the true meaning is clear from the words of the statutes, which are per- missive only, and impose the duty of making full compensation to each land-owner as the option of taking the land of each is exercised, and, further, from the section to which we have already referred, which contemplates the total aban- donment of the line or the part per- formance of it, and makes provision for the return of the land to the original proprietors in certain cases. * * There remains but one fur- ther view of the case to be consid- ered; and of that we have partly disposed in the observations which we have already made. But, in as much as Lord Campbell proceeded upon this ground only in the court below, although it was not much re- lied upon before us in argument, we have, oat of respect to his high au- thority, most carefully examined it, and are of opinion that the man- damus can not be supported upon the ground that the railway com- pany, having exercised some of their powers, and made part of their line, are bound to make the whole rail- way authorized by their statutes. It is unnecessary here to determine the abstract proposition, that a work, which before it is begun is per- missive, is after it is begun obliga^ tory. We desire not to be under- stood as assenting to the proposi- tion of my brother Erie, that ' many cases may occur where the exercise of some of the compulsory powers may create a duty to be enforced by mandamus.' And, on the other hand, we do not say that such may not be the law. If a company, em- powered by act of parliament to build a bridge over the Thames, were to build one arch only, it would be well deserving of consid- eration whether they ought to be indicted for a nuisance in obstruct- ing the river, or for the non-perform- ance of a duty for not completing the bridge. It is suflScieut to say that in this case there are no circum- stances to raise such a duty, if such a duty" can be created by the act of the party. The plaintiffs in error have made the principal portion of their line, and they have abandoned the residue from no corrupt motives, but because Beverley has already sufficient railway communication, and because the residue of their line passes through a country thinly populated, and, if made, would not CHAP. IV,] TO PRIVATE COKPOEATIONS. 225 not lie to compel its completion, where no corrupt motives are imputed to the company in abandoning the line.i § 317. In the absence of any American decisions bearing directly upon the principle under discussion, the question may still be regarded as an open one in this country, although no reason is perceived why the rule of non-interference, adopted by the exchequer chamber, should not be recognized and fol- lowed here as well as in England. After the completion of the railway, however, the cases would seem to stand upon a different footing, and the broad doctrine has been maintained, that, after the completion of the work, the corporation may be compelled by mandamus to fairly and fully carry out the objects for which it was created.^ Thus, where by the terms of its charter a railway is required to transport passengers to 91 particular point or terminus, it may be compelled by man- damus to conform to its charter obligations in this particular.^ And where the act of incorporation provided that the public should have the use and enjoyment of the railway upon the payment of certain rates, and the company afterwards took up certain portions of its track, mandamus was granted to com- pel the re-placing of such portions.* And this was allowed, notwithstanding the liability of the corporation by indictment, the remedy by indictment being regarded as far less effective in such a case than that by mandamus. ^ § 318. The writ has frequently been granted to protect the rights of land-owners to compensation for their lands taken in the construction of works of public improvement. And where a railway, or other corporation, is vested with the right of emi- nent domain, it may be compelled by mandamus to take the be remunerative." Accordingly the established in England, judgment of the court of queens ' Tork & North Midland R. Co. «. bench, awarding the peremptory The Queen, a-upra. mandamus, was reversed. In con ' State v. The Hartford & N. H. formity with this decision, the judg- K. Co. 29 Conn. 538. mentof the queens bench in Regina ' Id. e. Lancashire & Yorkshire R. Co. 1 * King v. Severn & Wye R. Co. 3 El. & Bl. 238, was also reversed, and Barn. & Aid. 644. the doctrine of the text may there- ' Id. fore be regarded as conclusively 15 226 MANDAMUS. [PAET I. necessary steps for summoning a jury to assess damages for the property taken or damaged, and it may even be required by the writ to make payment of the amount of damages so assessed, in the absence of any other specific or adequate remedy.'- § 319. The duty incumbent upon railway and other cor- porations engaged in works of public improyement, of con- structing their bridges in accordance with the requirements of their charters, or in such manner as to avoid danger or incon- venience to the public and to prevent the obstruction of navi- gation, may properly be enforced by mandamus. ^ Thus, a railway company may be compelled so to construct its bridge across a navigable stream, in the manner prescribed by its charter, as not to obstruct the navigation of the stream.^ So a bridge company, which, by the terms of its charter, is required to maintain and forever keep in repair a certain bridge, may be compelled by mandamus to perform this duty.* And it does not constitute a sufficient objection to the exercise of the jurisdiction by mandamus in such a case, that the offense is a nuisance, for which an indictment might lie, since the duty to erect and keep in repair the bridge is a public duty, the specific performance of which is the chief thing sought, and for which mandamus is the most appropriate remedy.^ Indeed, relief has been granted in this class of cases for the express purpose of redressing a grievance in the nature of a nuisance. Thus, where it is the duty of a canal company to construct a bridge over a road which is obstructed by its canal, this duty may be enforced by mandamus, since there is no other adequate remedy at law. And while, in such a case, pecuniary damages might compensate for the past injury and ' Queen v. Eastern Counties R. ton Water Power Co. Spencer, 659 ; Co. 2 Atl. & E. N. S. 347 ; King v. Habersham v. Savannah & Ogechee Water Works Co. 6 Ad. & E. 355 ; Canal Co. 36 Geo. 665. Queen v. Trustees of Swansea Har- ' State v. Northeastern R. Co. 9 bor, 8 Ad. & E. 439 ; Queen v. Dept- Rich. 347. ford Pier Co. lb. 910. ' State v. Wilmington Bridge Co. ' State V. Wilmington Bridge Co. 3 Harring. 813. 3 Harring. 313 ; State v. Northeast. * Id. ern R. Co. 9 Rich. 347; In re Tren- CHAP. IV.j TO PBITATE COEPOEATIOWS. 227 obstruction of the road, such damages would afford no redress for the future, since the obstruction would still remain. ^ So where the duty of erecting a bridge is so plainly incumbent upon a corporation that the court has no doubt as to the ques- tion of obligation, and the omission to perform the duty is admitted, mandamus will lie, even though there may be a remedy by indictment, the latter not being regarded as a specific remedy to compel the performance of the particular thing sought. 2 § 320. The obligation of railway companies to construct and maintain proper crossings and suitable approaches thereto at all points where their lines of railway intersect public streets or highways, and to leave all such highways as they may cross in a safe condition for the use of the public, is an obligation which may properly be enforced by the aid of man- damus.^ And the right of the courts to interfere in such cases for the protection of the public would seem to be the same, whether grounded upon the common law obligation of railway companies to maintain their crossings in a safe condi- tion, or upon express provisions of their charters affirming and declaring the common law duty.* So where a railway company is granted the right of way through a city and cer- tain conditions are annexed to the grant and embodied in the ordinance, requiring the company to maintain all necessary crossings, approaches and culverts at points where the track runs upon or across the streets and alleys of the city, and to make such crossings and approaches of suitable construction for the convenient passage of persons and vehicles, mandamus lies to compel the performance of these conditions. ^ But where, by its act of incorporation, a railway company has an option at its point of crossing a highway, either to carry its ' Hal^ersham «. Savannah & Oge- May 38, 1873 ; Indianapolis & Cin- chee Canal Co. 26 Geo. 605. cinnati R. Co. v. The State, 37 Ind. ' In re Trenton "Water Power Co. 489. Spencer. 659. ' People v. Chicago & Alton R. ' People v. Chicago & Alton R. Co. supra. Co. 5 Chicago Legal News, 436, Su- ' Indianapolis & Cincinnati R preme Court of Illinois, decided Co. v. The State, 37 Ind. 489. 228 MAH-DAMTJS. [PABT I. track over the highway, or the highway over its track, a man- damus commanding the company to do one of these things in the alternative is defective if the record fails to show that it is impossible that the other branch of the alternative can be performed. 1 § 321. Duties imposed upon a corporation, not by virtue of express law or by the conditions of its charter, but arising out of contract relations, will not be enforced by mandamus, since the use of the writ is limited to the enforcement of obli- gations imposed by law. Thus, the writ will not go to a turn- pike company, to compel it to keep a bridge in repair upon the ground of its having contracted so to do with the ofiScers of the county. 2 § 322. Mandamus has been held to be the proper remedy to compel a railway company to deliver to a particular ware- house or grain elevator grain consigned thereto in bulk along the line of railway, the warehouse itself being situated upon the line of respondent's, road, with facilities for the delivery of grain equal to those of other warehouses at which the rail- way delivers, and the carriage of grain in bidk being a part of the regular business of the road. The right to relief -by man- damus in such cases is based upon the duty or obligation of the railway company as a common carrier, and the want of any other adequate remedy at law.* ' Queen v. Southeastern R. Co. 4 16 Ohio St. 308. H. L. Ca. 471. ' Chicago & Northwestern R. Co. « State V. Zanesville Turnpike Co. v. The People, 56 111. 365. CHAPTEK y. OF MANDAMUS TO MUNICIPAL CORPORATIONS. I. PRDrCIPLBS ON -WHICH THE JuBISDICTON IS EXERCISED, . § 323 II. AuDiTma AND Payment of M-dnicipal Obligations, . . . 338 III. Municipal Taxation, and hebbin op Municipal Abd Sttb- SCRIPTIONS AND BONDS, 368 IV. Municipal Oppicebs and Elections, 401 v. Municipal Impbotements, Streets and Highways, . . . 413 I. Peinciples on which the Jtteisdiotion is Exeecised. g 333. Mandamus granted to set corporations in motion. 324. General rule as to ministerial duties ; the rule applied. 325. Discretion of municipal officers not interfered with. 326. The rule applied to approval of official bonds; discretion in appointment of officers. 327. Application of the rule to the granting of licenses. 828. Mandamus refused where officers have already acted upon matter ; damages in opening railway. 329. Mandamus lies for custody of municipal books and records; the rule applied and illustrated. 330. Lies for inspection of municipal records; degree of interest neces- sary. 331. The rule applied to registrars of election. 332. School boards subject to mandamus; exclusion from school on account of color; reinstating teacher; removal of school. 333. Officer compelled to deliver municipal bonds in payment for lands. 334. Refusal to accept office ; calling meeting for removal of officers. 835. Writ granted against persons acting for corporation without authority. 836. Distribution of public fund. 337. Parties to whom the writ should run ; change in officers ; successors liable. mm 230 MANDAMUS. [part I. § 323. The vast interests entrusted to the care of municipal and public corporations, as well as the extraordinary pow- ers, partaking both of a legislativt and of a judicial nature, wielded by these bodies, have occasioned frequent applications for the aid of the courts by mandamiis to compel the proper performance of their corporate duties, and to set them in motion when they have refused to act upon matters falling within the scope of their well defined powers.' And while it is true, as we shall hereafter see, that in all matters entrusted to or properly resting in the judgment and discretion of such bodies, or their ofiicers, and upon which they have actually passed, mandamus will not lie to control their decision, it is still the most efficient remedy and is freely granted to set them in motion and to enforce action, where they have refused to act at all. 2 § 324. Mandamus has been fitly termed the spur by which municipal officers are moved to the performance of their duty.* And it may be affirmed as a general rule, sanctioned by the best authorities, that where a plain and imperative duty is specifically imposed by law upon the officers of a municipal corporation, so that in its performance they act merely in a ministerial capacity, without being called upon to exercise their own judgment as to whether the duty shall or shall not be performed, mandamus is the only adequate remedy to set them in motion, and the writ is freely granted in such cases, the ordinary remedies at law being unavailing.* As illustra- ting the rule, it is held that where county commissioners are required by a plain and positive statute to set aside a certain portion of the county funds annually for a specific purpose, and have refused to perform this duty, they may be compelled ' In Dillon on Municipal Corpor- ford Co. 47 Pa. St. 361. porations, Oh. XX, will be found a * Humboldt Co. v. Churchill Co. very full and satisfactory collection 6 Nev. 30 ; Hall ®. Selectmen of of authorities bearing upon the Somersworth.SQN. H.511; .©ajparte subject matter here discussed. Common Council of Albany, 3 Cow. ' Supervisor of Sand Lake ">. Su- 358; People v. Common Council of pervisor of Berlin, 2 Cow. 485. New York, 45 Barb. 473 ; People v- ' Howe V. Commissioners of Craw- Collins, 7 Johns. Eep. 549. CHAP, v.] TO MtrWIClJ>AL OOEPOEATIOKS. 231 to act by mandamus, i So where, tinder the statutes of a state, it is made the imperative duty of town authorities to appro- priate and pay over a certain percentage of the taxation of the town for the support of teacher's institutes, the payment may be enforced by mandamus, there being no other adequate remedy, by action at law or otherwise.^ So, too, where the legislature has directed the municipal authorities of a city to create a public fund or stock for a particular purpose, the writ may issue to the common council of the city, requiring them to pass the necessary ordinance for creating the stock, since the obligation laid upon them is imperative, and they have no dis- cretion as to its performance.^ And where a board of muni- cipal officers are required by law to raise for the support of the poor so much money annually as may be fixed by another board, entrusted with full power as to determining tlie amount thus to be raised, the duty of raising the money may be enforced by mandamus, there being no discretion left to the officers, and their duty being purely of a ministerial nature.* So where it is made the duty of a town clerk to recoi'd surveys of high- ways made by the highway commissioners of the town, the performance of the duty may be coerced by mandamus. ^ And in such case, it constitutes no sufficient return to the writ to allege that the commissioners had not duly qualified, since the validity of their title can not be attacked collaterally, upon pro- ceedings in mandamus, and it is not competent for a mere ministerial officer, such as thefclerk, to adjudge the acts of the commissioners null and void.* § 325. While, as we have thus seen, the courts are inclined to a somewhat liberal exercise of their jurisdiction by man- damus, for the purpose of coercing the performance of duties obligatory upon municipal corporations and their officers, they yet refuse to trespass upon the limits of official discretion, and ' Humboldt Co. «. Churchill Co. 6 * Ex parte Common Council of Nev. 30. Albany, 3 Cow. 358. 2 Hall i>. Selectmen of Somers- ' People ®. Collins, 7 Johns. Eep. worth, 39 N. H. 511. 549. " People v. Common Council of ' Id. New York, 45 Barb. 473. 232 MANDAMUS. [PABT I. the principle applies with peculiar force to this class of cases, that mandamus will not lie to control the decision of officers entrusted with the power of determining any particular mat- ter. Where, therefore, municipal authorities are by law entrusted with jurisdiction over certain matters, the decision of which rests in their sound discretion, and requires the exer- cise of their judgment, mandamus will not lie to control or in any manner interfere with their decision, since the courts will not direct in what manner the discretion of inferior tribunals and officers shall be exercised. ^ Thus, where county commis- sioners are by law authorized to erect certain public buildings, without being required to erect them in any particular time, the power of determining when the buildings shall be erected resting in their own judgment, they can not be compelled by mandamus to erect a particular building at a articular time, since this would substitute the judgment and opinion of the court in place of their own discretion.^ And where the mayor of a city is invested with discretionary powers as to the leas- ing of certain lands, requiring the exercise of his judgment, he is not, as to such powers, subject to control by mandamus.* § 326. An excellent illustration of the rule is presented in the case of the approval of official bonds by municipal offi- cers. And where certain town officers are entrusted by law with the power of approving the sufficiency of sureties upon the bonds of town constables, and of fixing the amount of the bonds, they will not be require* by mandamus to approve a particular bond tendered.* Where, however, municipal offi- cers whose duty it is to accept and approve of the bonds ten- dered by officers elect, have refused to act in the matter, the writ may issue for the purpose of setting them in motion, and the party aggrieved will not be required to resort to proceed- ings in quo warranto against the incumbent of the office.^ > Commonwealth v. Henry, 49 Pa. 476. St. 530; Expa/rte Black, 1 Ohio St. ^ Ex parte Black, 1 Ohio St. 30. 30 ; In re Prickett, Spencer, 134. * Commonwealth v. Henry, 49 Pa. And see Smith v. Mayor of Boston, St. 580. 1 Gray, 73; Respublica v. Guardians * In re Prickett, Spencer, 134. of the Poor, 1 Yeates, (2nd edition,) " State t>. Lewis, 10 Ohio St. 12a CHAP. V.J TO MUWICIPAL CORPORATIONS. 233 But where a board of officers, such as guardians of the poor of a city, are entrusted by law with the power of appointment to certain minor offices, the entire matter resting in their dis- cretion, they will not be controlled as to the appointment by mandamus, since if inconvenience or hardship arises from the appointment actually made, the legislature, and not the court, is the proper forum to which resort should be had for relief. * § 327. The granting of licenses, being usually a matter of sound discretion, falls under the general rule above laid down. And wherever the authorities of a mimicipal corporation are entrusted with the power of granting licenses, such as for the sale of liquors, or the keeping of houses of entertainment, having discretionary powers in the matter, their discretion win not be interfered with by mandamus, and if they have once acted upon and decided an application, the courts will npt interfere to correct their decision. ^ Otherwise, however, where the license has been refused under a mistaken construc- tion of the law governing the case, and where a board of county supervisors, acting under a mistake as to the law, have refused a ferry license to which the applicant was clearly entitled, the writ has been allowed.^ § 328. It follows necessarily from the rule as above dis- cussed and illustrated, that where municipal officert: have once acted upon matters properly entrusted to their decision, they can not be compelled again to act upon the same matters. For example, where the mayor and common council of a city are empowered with the determination of the amount of damages to be paid to adjacent land-owners for injury sustained in the opening of a railway, and have rendered a final decision in the matter, mandamus will not lie to compel them to again consider the question.* § 329. It has already been shown, in discussing the law of mandamus as applied to private corporations, that the courts ' Respublica -o. Guardians of the Francisco, 20 Cal. 591. Poor, 1 Yeatea, (2nd edition,) 476. ' Thomas v. Armstrong, 7 Cal. 286. ' City of Louisville v. Kean, 18 B. ' Smith «. Mayor of Boston, 1 Mon. 9 ; Ex parte Persons, 1 Hill, Gray, 72. 655; People v. Supervisors of San 234 MAWDAMUS. [part I. are inclined to a liberal use of the writ for the purpose of compelling the delivery of corporate hooks and records to the persons properly entitled thereto, as well as to procure an inspection of such books and records by a corporator entitled to such inspection.' The jurisdiction over the records of municipal and public corporations rests upon similar princi- ples, and the rule is well settled that mandamus will lie to compel the delivery of the books and records of such corporate bodies into the custody of the officers properly entitled thereto.^ For example, a county treasurer may be required by the writ to deliver to the clerk of the county the books of account pertaining to his office, showing his receipts and dis- bursements during his term of office, where such books are required by law to be deposited with the clerk. ^ So man- damus will lie in behalf of a board of municipal officers, such as the selectmen of a town, duly elected, to enforce the sur- render of the books and records pertaining to their office, which are held by other persons claiming the office, the relief being granted in such a ease on the ground of the inadequacy of the ordinary legal remedies.* Nor is it a sufficient objec- tion to the issuing of the writ, that the person having custody of the corporate books claims them by way of security for money advanced for the corporation.^ And mandamus will go to the person having custody of municipal records to com- pel their production at a corporate meeting. ^ So it lies to a former mayor of a city, to compel the deliver}'- of the common seal of the city to his successor.'' But in all cases where the aid of a mandamus is invoked to procure the surrender of municipal records, it is incumbent upon the relator to clearly establish his right, and in the absence of a satisfactory show- ing in this respect the relief will be withheld. Thus, the members of a committee appointed by a to-wra to audit the ' Ante, % 306 etseq. ' Kimball «. Lamprey, 19 N. H. = Walter i}. Balding, 24 Vt. fi58; 315. Kimball v. Lamprey, 19 N. H. 215; ' King v. Ingram, ,1 Black. W. 50t King V. Payn, 1 Nev. & P. 534; King « Anon. 3 Barn. K. B. 235. ». Ingram, 1 Black. W. 50. ' People ». Kilduff, 15 111. 492. ' King V. Payn, supra. CHAP, v.] TO MTTNIOIPAL OOEPOEATIONS. 235 accounts of overseers of the poor, have no such interest in the books and papers kept by such overseers, as to entitle them to the extraordinary aid of a mandamus to compel their delivery. Such persons are not public officers, entitled to the custody of the books by virtue of their office, but are only the agents of the town, and the wrong being to the principal and not to the agent, the principal should seek redress. ^ § 330. Ujjon principles analogous to those already consid- ered, the courts interfere by mandamus to compel municipal authorities to allow the inspection of their records by persons showing their right to such inspection, and the writ will be granted in behalf of a member of the municipality, who is entitled to an inspection of its books, to permit him to make such inspection and to take copies and abstracts of the records at his own cost.^ It is, of course, essential to the exercise of the jurisdiction in such cases, that the relator should show some interest in the records wliich he seeks to inspect, and it may well be doubted whether the writ would in any case be allowed iipon the relation of a mere stranger. But a resident within the municipality, who has been sued by the corporation for a violation of one of its by-laws, is entitled to the aid of a mandamus to procure an inspection of the books of the cor- poration, as far as they relate to the matter in dispute, and to compel the clerk of the corporation to furnish him with copies of i'ts by-laws, at his expense. ^ § 331. "Where the laws of a state provide that registrars of elections shall, as soon as possible after an election, deposit with the clerk of the county the original books of registration, to be preserved among the records of the county, the duty thus created is of such a nature as to come within the jurisdiction by mandamus, and the writ will go to compel the delivery.* § 332. The writ is sometimes granted against municipal officers or local boards entrusted with the management of schools. And where a uniform system of schools is provided 1 Bates V. Overseers of the PoeJr, ' Harrison v. Williams, 4 Dow. & 14 Gray, 163. Ry- 830. ^ Kex i>. Guardians of Great Far- * McDiarmid «. Fitch, 27 Ark.lOa ingdon, 9 B. & 0. 541. 236 MANDAMUS. [PAET I. by the constitution or laws of tlie state, to whicli all children of a certain age are entitled to admission, the school trustees or board of education may be required by mandamus to admit to school privileges a child of the required age whom they have excluded on account of color. * So the writ will be granted against the officers of a school distriqt, requiring them to conform to the law regulating the discharge of their duties, and to carry out the directions of the district, or to reinstate a teacher whom they have removed without authority for so doing. 2 But the courts will not interfere to correct a mere temporary irregularity in the aflFairs of a school district, such as a temporary removal of the school from the proper school house, no permanent injury being contemplated, and the period of such removal having almost expired. ^ § 333. Mandamus will lie to prevent a municipal officer from setting at naught the wiU of the corporation, by refusing to carry out its instructions. For example, where a city has, through its common council, directed the purchase of certain lands, and that payment therefor be made in bonds of the corporation, but the officer whose duty it is to deliver the bonds refuses so to do, sufficient cause is presented for inter- ference by mandamus, and tlie party aggrieved will not be put to his action for specific performance.* § 334. It being a common-law offense to refuse to servp in a public office to which one has been elected, mandamus wiU lie to compel a municipal officer, duly elected, to take the offi- cial oath and enter upon the duties of his office. ^ And the writ will issue in such a case, notwithstanding he has paid a fine provided by a by-law of the corporation for not accepting an office, where the by-law does not declare that the fine shall be in lieu of service." But it will not lie to compel a meeting of the authorities of a municipal corporation for the purpose of considering the removal of certain municipal officers because ' State v. Duflfy, 7 Nev. 342; Peo- = Colt v. Roberts, 38 Conn. 330. pie V. Board of Education of De- ^ People v. Brennan, 39 Barb. 522. troit, 18 Mich. 400; Clark v. Board ' King ». Bower, 1 B. & C. 247. of Directors, 34 Iowa, 366. « Id. ' Oilman ». Bassett, 33 Conn. 398. CHAP. V.J TO MUNICIPAL OOBPOEATIONS. 237 of their non-residence, even under a charter requiring all offi- cers to be residents within the limits of the municipality, the granting of the writ for such purpose being without the sanction of precedent.^ § 335. The writ may be granted for the protection of a municipal corporation against persons claiming to act for and represent it in a public or official capacity, but without authority. Thus, where certain persons claim to act as a building committee for the construction of public buildings, without being properly authorized so to act, they may be com- pelled by mandamus to surrender to the corporate authorities the plans and specifications in their possession for the construction of such public buildings.^ § 336. While it would seem that mandamus may be the proper remedy to compel municipal officers having charge of a public fund, to distribute money due from such fund to the persons properly entitled thereto, yet the writ will not issue for this purpose where, if granted, it would prove unavailing. And where town trustees, having charge of public funds, are directed by an alternative mandamus to pay to certain religious societies amounts claimed as due them from such funds, the writ will not be made peremptory, if it appears by the return that the predecessors of the trustees to whom the alternative writ was directed, had decided that the relators were not entitled to the money, and had accordingly distributed it to others. In such a case, the money not being subject to the order of the respondents, the peremptory writ, if granted, must necessarily prove unavailing, and this of itself constitutes a sufficient objec- tion to its being granted.* § 337. As regards the parties to whom the writ should be directed where its purpose is to compel the performance of official duties incumbent upon a municipal corporation, the ' King v. Mayor of Totness, 5 Lev. Part I, 91. Dow. & By. 481. But the writ was '> State ». Kirkley, 39 Md. 85. granted in an early case in the kings ' State v. Trustees of Warren Co. bench, to compel a municipal cor- 1 Ohio (3nd edition), 300 ; Univer- poration to admit an apprentice to sal Church v. Trustees, 6 Ohio, 445 his freedom. Townsend's case, 1 238 MANDAMUS. [PART I. earlier English practice was to direct it to the body politic by- its corporate name, and it has been held a sufficient ground for quashing the writ that it was not thus directed, but ran to the mayor and aldermen of the municipality. ^ In this country, however, the earlier rule has not been followed, and it seems to be settled that the writ may properly be directed to the mayor and aldermen, without running to the municipality in its corporate name.^ And since proceedings by mandamus against municipal officers to compel the performance of their official duties, are virtually proceedings against the corpora- tion itself, rather than its individual officers, it is no bar to the exercise of the jurisdiction against a board of such officers, that the term of a portion of them has expired and that a new board, composed in part of different members, has been formed.* And such a change in the membership of the board does not BO change the parties as to abate the proceedings, the judg- ment of the court being obligatory upon the members of the board actually in office at the time of its rendition.* Upon the same principle of treating the proceedings against the municipal officer as proceedings instituted against him in his official, rather than in his individual capacity, it is held, where service of process and of the necessary papers has been had upon the officer, any proceedings which they might warrant against him may be had against his successor, without begin- ning de novo J ' Kegina v. Mayor of Hereford, 2 tucky, 3 Bush, 231. State i). Gates Salk. 701. And see King v. Taylor, was an application for a mandamus 3 Salk. 231. But see King ®. Mayor against the town authorities, to com- of Abingdon, Ld. Raym. 559. pel them to levy a tax in payment " Mayor v. Lord, 9 Wal. 409. of a judgment recovered against the ' Maddox v. Graham,- 2 Met. Ky. town upon coupons attached to its 56; Commissioners of Columhia «. bonds. Service of the papers was Bryson, 13 Fla. 281. And see Clark had upon the predecessor in office V. McKenzie, 7 Bush, 523. of the respondent. The court, Mr. ' Maddox «. Graham, s«pras; Com- Justice Painb, say: "It may be missioners of Columbia v. Bryson, that in such cases, in proceedings supra. to charge a party personally with ' State V. Gates, 22 Wis. 210 ; State contempt, some notice or request e. City of Madison, 15 "Wis. 30. should be first served upon him, and And see Lindsey v. Auditor of Ken- that he ought not to be so charged CHAP, v.] TO MUNICIPAL CCEPOEATIOlSrS. 239 II. Auditing and Payment of Municipal Obligations. § 3R8. The jurisdiction stated. 339. Mandamus refused where claimant has other remedy. 840. Illustrations of the rule ; remedy need not he a special one ; inabil- ity of corporation to pay judgment. 341. The rule applied to salaries of municipal officers. 342. Wnt refused against mayor to countersign warrant ; douht as to person entitled. 343. Writ refused to correct illegal tax. 344. Legal remedy must be adequate to bar mandamus. 345. Discretion of auditing officers not controlled by mandamus ; the doctrine applied. 346. Writ refused where officers have passed upon and rejected demands. 347. Auditing board estopped by its own decision. 348. Distinction between setting officers in motion and controlling their action. 349. Mandamus the proper remedy to test jurisdiction of auditing officers. 350. Services authorized by law and made a charge against county. 351. Mandamus lies to compel drawing of warrant for claim allowed ; applications of the rule. 352. Want of funds a bar to the relief. 353. Warrant for claim allowed by supervisors ; permissive statute con- strued as obligatory. 354. Writ refused in aid of contracts ultra vires. 355. Relief barred by statute of limitations. 356. Mandamus lies for payment of claim allowed ; the rule illustrated and applied. 357. Specific appropriation ; special fund ; want of funds ; fraud ; illegal appointment cured by subsequent legislation. 358. Refusal necessary; claim should be allowed; particular sum due should be shown. upon the strength of proceedings ceeding which they warrant maybe taken against his predecessor, of taken against his successor, without which he may in fact have had no commencing de novo. This rule is knowledge. But so far as the ad- essential to the due administration vancement of the principal remedy of justice, which might otherwise be is concerned, it is to be regarded as baffled by the regular changes in a proceeding against the officer, and office, or defeated by resignations not against the individual; and made for the very purpose of de- when proper papers have been once stroying proceedings already corn- served upon the officer, any pro- menced." 240 MANDAMUS. [PAET I. 359. Money must be held by the officer as corporate funds. 360. Liability must bave been incurred by proper authority. 361. Writ refused where money may be recovered by action at law. 362. Payment must be actually due ; expiration of term ; effect of injunc- tion against payment. 363. Amount of payment limited by amount of fund ; want of funds. 364. Duty of respondent must be shown ; payment by delivery of muni- cipal bonds. 365. Payment of judgments agai,nst municipality enforced by mandamus. 366. Issuing of municipal bonds for property condemned for public purposes. 367. Writ granted to compel delivery of funds from county treasurer to town treasurer. § 338. The auditing and payment of claims against muni- cipal corporations, such as for salaries, services rendered, mate- rials furnished and the like, have afforded frequent occasion for invoking the extraordinary aid of the courts by mandamus, in behalf of claimants against the municipality. The power of passing upon and allowing claims of this nature, though some- times vested in a particular officer of the municipal corpora- tion, more frequently rests with a board of officers, such as a board of supervisors of a county or town, to whom is entrusted the dnt}' of auditing claims which may be properly presented against the municipality. § 339. The first point to be observed in determining whether the courts will interfere in this class of cases is, whether any other legal and specific remedy exists, by action at law, or otherwise, adequate to afford relief to the party aggrieved. And the rule is too firmly established to admit of doubt or con- troversy, that if there be any other adequate and specific rem- edy, such as an action at law against the corporation, by which relief may be had by the aggrieved claimant, mandamus will not lie to compel municipal authorities or their auditing boards or officers, either to audit or pay claims against the corpora- tion. ^ Indeed, the rule is simply the application of a prin- ' Mansfield v. Fuller, 50 Mo. 338; Gray, 280; People «. Clark Co. 50 Ward V. County Court, lb. 401 ; Com- 111. 218 ; Commissioners of Johnson monwealth v. Commissioners of Co. «. Hicks, 2 Ind. 527; Peoples. Allegheny, 16 8. & R. 317 ; Inhabit- Supervisors of Chenango, 11 N. Y. ants of Lexington v. Mulliken, 7 563 ; People v. Mayor of Now York, CHAP, v.] TO MUNICIPAL COEPOEATIOWS. 341 ciple tuiderlying the entire jurisdiction by mandamus, that the existence of other adequate and specific legal remedy is a bar to relief by this extraordinary writ, and the courts will only put in requisition their extraordinary powers in cases where no remedy can be had in the usual course of the law. And it is not the province of mandamus to settle differences of opinion between municipal authorities and claimants as to the amount due for services rendered. All such cases of disputed accoimts or claims against the municipality should be referred to the arbitrament of a jury or to the ordinary process of the courts, and they can not be determined by proceedings in mandamus. ^ And the fact that the claimant has lost his remedy at law, or is in such position that he can not avail himself of that remedy, will not warrant a mandamus, where his own laches has deprived him of his legal remedy. ^ § 340. Application of the rule above discussed has been made to the case of the holder of county orders, drawn upon the general fund of a county, and it is held that the holder of such orders, being entitled to judgment against the county in case of non-payment of his order, must pursue that remedy, and is not entitled to the aid of a mandamus. ^ So where a 25 Wend. 680 ; Bx pwrte Lynch, 3 the opinion of the court, says : " It Hill, 45; People v. Thompson, 25 has never been understood, and it Barb. 73 ; People «. Wood, 35 Barb. never should be, that the holder of 653 ; People v. Booth, 49 Barb. 31 ; such an order had the right, on re- Crandall b. Amador Co. 20 Cal. 72; fusal of payment, to apply for a State V. County Judge of Floyd, 5 mandamus to . Stanislaus Co. People V. Supervisors of Delaware 6 Cal. 440. Co. 45N. Y. 196; People r. Super- 248 MANDAMUS. [PAET I. the corporation whose representatives they are. And the writ affords the only plain, speedy and adequate remedy, to test the preliminary question of the jurisdiction of such oiScers, where they have refused to act for want of jurisdiction.^ Where, therefore, a board of auditing officers refuse to act upon demands presented for adjiidication, upon the ground that they are not properly obligations for which the county is liable, the coiirt, if satisfied that the demands are properly chargeable against the county, may require the board to act upon and audit such claims, without in any manner attempting to con- trol or regulate the amount which shall be allowed. ^ It by no means follows, however, because mandamus is the proper remedy to test the jurisdiction of the municipal authorities over the matter presented for their determination, that they will necessarily be compelled to exercise their power in that particular case, and if the court is satisfied that the duty is not absolute and final, the peremptory writ may be withheld.^ ' People «. Supervisors of San Francisco, 28 Cal. 439. ' Hull V. Supervisors of Oneida, 19 Johns. Rep. 359 ; Bright v. Super- visors of Chenango, 18 Johns. Rep. 343 ; People v. Supervisors of Dela- ware Co. 45 N. Y. 196. In Hull i). Supervisors of Oneida, 19 Johns. Rep. 359, Mr. Justice Platt, deliv- ering the opinion, says : " The dis- tinction recognized hy us is, that where the inferior tribunal has a discretion, and proceeds to exercise it, we have no jurisdiction to con- trol that discretion by mandamus. But if the subordinate public agents refuse to act, or to entertain the question for their discretion, in cases where the law enjoins upon them to do the act required, it is our office to enforce obedience to the law by mandamus, in cases where no other legal remedy exists. The case of the People ex rel. Wil- son «. Supervisors of Albany, 13 Johns. Rep. 414, and the Matter of Bright ». Supervisors of Chenango, 18 Johns. Rep. 342, exemplify this distinction. * * * The question now pj-esented is, whether the super- visors were bound to audit and allow the account, as a county charge ? If it be a legal claim, then we have no doubt of our jurisdic- tion to instruct and guide the super- visors in the execution of their duty, by mandamus ; not to control their discretion in judging what is a reasonable compensation for such services; but to compel them to admit the claim as a county charge, and to exercise their discretion aa to the amount, or, in the language of Lord Ellenbobough, in the case before cited (King «. Justices of Kent, 14 Bast, 395.) ' this court would interfere so far as to set the inferior jurisdiction in motion.' " ° People D. Supervisors of San Francisco, 28 Cal. 439. CHAP. V.J TO MUNICIPAL COEPOEATIONS. 249 § 350. Where certain services are authorized by statute and made a charge against a county, mandamus will lie to its board of supervisors requiring them to receive and allow a claim against the coimty for the services thus rendered. Thus, where it is provided by statute that m.edical services rendered for the indigent sick of a cour.ty shall be made a charge upon the county, the duty imposed apon the supervisors of allowing a claim for such services is treated as an official duty, peremp- tory in its nature, which they are not at liberty to disregard, and in the discharge of which they can not be permitted to follow their own caprices. Mandamus will, therefore, lie in such a case to compel the performance of the duty. ^ § 351. As regards the mere ^ct of drawing a warrant upon the treasurer or other municipal officer charged with payment, after a demand has been properly audited and allowed by the officer or board charged with this duty, the case stands upon a different footing from the class of cases just considered, and there can be no valid objection to granting the writ for this purpose. In such case, the amount of indebtedness due from the corporation being definitely fixed by the proper authority, there remains only the ministerial act of drawing the necessary warrant for its payment, and mandamus is the appropriate remedy to compel the performance of this duty.^ Thus, the drawing of a warrant by a city comptroller upon the city treasurer for the ascertained amount of an indebtedness admitted to be due from the city, is a purely ministerial act, which may be enforced by mandamus.* And where the common council of a city, acting within the legitimate scope of their authority, have authorized the making of certain contracts, and the expenditure of certain moneys for the benefit ' Peoples. Supervisors of Macomb ors of "Wayne Co. 10 Mich. 307. Co. 3 Mich. 475. Otherwise, how- ' People v. Flagg, 16 Barb. 503 ; ever, where the board has actually State d. Mount, 31 La. An. 353; passed upon such a claim and People v. Auditors of Wayne Co. 5 audited it at a particular amount. Mich. 328 ; State v. Buckles, 39 Ind. And in such case the writ will not 272; Apgar ?;. Trustees, 5 Vroom, issue to compel the allowance of an 308. amount which has been deducted ' State v. Mount, 31 La. An. 353. from the account. People v. Audit- 250 MANDAMUS. [PAET I. of the city, and upon performance of the work, have ordered the money to he paid, a ministerial officer of the city who has been ordered to draw his warrant for the payment of the amounts due, will not he allowed to question the regularity or propriety of the action of the city, but will be compelled by mandamus to draw the warrant, i ISTor is it a sufficient return to an alternative mandamus, directing a board of county audi- tors to draw a warrant upon the county treasurer for the amount of a claim against the county, that such warrant has already been drawn, but has been levied upon under execution against the claimant and the peremptory writ will go in such a case. 2 And where money has been raised by taxation for the payment of a specific class /)f creditors, such as teachers in the public schools, and is in the hands of the officer entrusted by law with the duty of making payment, the writ will lie on behalf of a teacher who has rendered services in accordance with the law, and who is entitled to payment out of the school fund, to compel the necessary officers to' draw their order for the payment of the money, the remedy by action against the officers being regarded as inadequate.^ But in all this class of cases, the relief is granted only where the amount of the demand has been definitely ascertained and fixed, in the manner provided by law. The writ, therefore, will not be granted to a county auditor, requiring him to issue an order for the payment of a claim against the county, where such officer is not himself authorized to fix the amount, and where it has not been fixed by the proper authority.* § 352. It is always a sufficient objection to the exercise of the jurisdiction by mandamus, that the writ, if granted, would prove unavailing. And it affords an insuj)erable objec- tion to granting the relief that there are no funds out of which the warrant can be paid if drawn. "Where, thei'efore, it appears by the return to the alternative writ, that there is not sufHcient money in the municipal treasury, out of which to satisfy the order or warrant, or that there are no funds except such as are ' People v. Flagg, 16 Barb. 503. ' Apgar v. Trustees, 5 Vroom, 308. " People ?). Auditors of Wayne Co. '■Commissioners v. Auditor, 1 5 Mich. 333. Ohio St. 323. CHAP, v.] TO MtTNICIPAL COEPORATIONS. 251 necessary to satisfy the ordinary current expenses of the corporation, the peremptory writ will be refused, i And where, under the laws of the state, a board of county com- missioners is vested with exclusive control over all expendi- tures of county funds, mandamus will not lie to the county clerk to issue his order upon the treasurer for payment of a claim against the county, until it has been submitted to and approved by the board of commissioners. ^ § 353. A county auditor may be compelled by mandamus to draw his warrant upon the treasurer of the county for the payment of a sum allowed by the board of county supervisors, who have appropriated the money and directed the auditor to draw his warrant therefor. ^ And the writ will lie in such case, notwithstanding the action of the board of supervisors was unauthorized and illegal in the first instance, where it has been subsequently ratified by an act of legislature.* In such cases, although the statute fixing the duty of the auditor is only permissive in terms, providing that he "may" draw his warrant upon the treasurer for a sum allowed by the super- visors, yet it will be construed as creating an imperative obli- gation, the word " may " being regarded as synonymous with the word " shall," where public interests or the rights of third persons intervene.^ § 354. Where, however, the aid of a mandamus is sought to compel a county auditor to draw his warrant upon the treasurer in payment of a claim against the county for services rendered, and the relator's right rests solely upon a contract with the county commissioners, in making which they have plainly exceeded their powers, the contract being ulPra vires, mandamus will be refused, notwithstanding the claim has been passed upon and allowed by the commissioners who made the contract. ^ § 355. The right to relief in this class of cases may be » Commonwealth «. Commission- " State u. Bonebrake, 4 Kan. 247. ers of Lancaster Co. 6 Binn. 5 ; Com- " State ». Bucljles, 39 Ind. 272. monwealtli v. Commissioners of " Id. Pliiladelphia Co. 1 Whart. 1 ; Same « Id. t). Same, 2 Whart. 286. « State ». Yeatman, 22 Ohio St. 546. 252 MANDAMUS. [PAET I. barred by tlie statute of limitations. And where the statute of limitations of a state limits all actions against public officers, growing out of liabilities incurred by the doing of any act in an official capacity, or by the omission of any official duty, to three years from the time when the action accrued, the statute applies to a case where mandamus is sought to compel the clerk of a board of county supervisors to affix the seal of the county to warrants drawn upon the treasurer. In such case the statute will be held to run from the time of issuing the warrants, since it was then the immediate duty of the clerk to affix his seal, and his omission to perform that duty constituted the ground of action, for which he was at once liable to pro- ceedings in mandamus. 1 § 356. The act of paying a demand or claim against a municipal corporation, after it has been duly audited and the amount fixed, like the act of drawing a warrant upon the dis- bursing officer just considered, is regarded merely as a minis- terial duty, unattended with the exercise of any judgment or discretion, and hence subject to control by mandamus. And where claims against a municipal corporation have been duly audited and allowed and payment is ordered by the proper authority, and there remains only the ministerial duty on the part of the treasurer or other disbursing officer of making the payment, mandamus will lie for a refusal to perform this duty, there being no other adequate and specific remedy for the party aggrieved.^ Thus, where town supervisors of roads are required by law to pay such orders as are drawn upon them by the proper authority for surveyor's services, and have refused to perform this duty, mandam^^s will lie, there being no other specific remedy.^ And the writ will issue in such case, even though an action might lie against the supervisors ' Presoott v. Gonser, 34 Iowa, 175. Court, 48 Mo. 475 ; Hendricks v. " State «. Treasurer of Callaway Johnson, 45 Miss. 644. And see Co. 43 Mo. 228 ; Commonwealth «. Carroll ■». Board of Police, 28 Miss. Johnson, 2 Binn. 275; Baker B.John- 38; People ». Edmonds, 19 Barb, son, 41 Me. 15 ; People v. Edmonds, 468 ; People v. Opdyke, 40 Barh. 306. 15 Barb. 529 ; People v. Haws, 36 ' Commonwealth v. Johnson, 2 Barb. 59 ; People «. Palmer, 52 N.Y. Binn. 275. 83 ; State v. Justices of Bollinger Co. CHAP. V.J TO MUNICIPAL OOEPOEATIOWS. 253 for breach of duty in refusing to make the payment, since such action must necessarily be brought against the super- visors in their private capacity, and a judgment against them would not authorize an execution to be levied on the treasury of the township. 1 So the writ lies to a county treasurer to compel the payment of sheriff's fees for services rendered the county in attending court, the services having been duly cer- tified by the court, and there being no other effectual remedy, either by action against the county, or against its treasurer. ^ So, too, a county treasurer may be compelled by mandamus to pay money due to a public officer, as a judge, as additional compensation for services rendered, where such compensation has been authorized by act of legislature, and fixed by the board of county supervisors, and the claim of the relator has been duly presented, audited and allowed. In such case a clear and imperative duty rests upon the fiscal officer of the county to make the payment, and no other remedy exists, since the claim does not create a debt against the county for which an action would lie.^ § 357. In further illustration of the rule, it is held that where a specific appropriation has been made, both by the legislature of the state and the common council of a city, for the payment of certain services rendered the city, and no remedy exists by action against the corporation, mandamus will lie to compel the payment.* So the writ will issue for the payment of a warrant drawn upon a special fund for a particular indebtedness against the county, since the warrant being on a special fund, no action at law lies against the county, and the ordinary remedy is thus unavailing.^ And in this class of cases, where a municipal officer is directed by the writ to make payment of a demand which has been duly ' Id. But see State v. McCrillus, refused on other grounds. 4 Kan. 250. * People v. Haws, 36 Barb. 59. 2 Baker «. Johnson, 41 Me. 15. And see People v. Opdyke, 40 Barb. 3 People V. Edmonds, 15 Barb. 529. 306. And see Same v Same, 19 Barb. 468, ' State ®. Justices of Bollinger Co. ■where the same principle is con- Court, 48 Mo. 475. ceded, though the mandamus was 254 MANDAMUS. [PAET 1. allowed against the corporation, it does not constitute a suffi- cient return to show that he has no funds with which to make payment, without showing that he had no funds at the time when the several demands of payment were made.^ Nor is it a sufficient return to allege that the warrant for the payment of the money was obtained by fraud and misrepresentation, without specifying the particular acts of fraud relied upon, since a statement of mere general conclusions of law is insufficient. 2 And the writ will go to compel a county treas- urer to make payment for services rendered the county, under an appointment conceded to have been unconstitutional in the first instance, where the legislature of the state has by subse- quent legislation recognized the validity of the demand for the services rendered, and has directed the money to be paid.^ § 358. It is to be observed, however, since mandamus lies only to require the performance of an official duty which the officer has failed to discharge, that the writ will not be allowed in the class of cases under consideration, where the fiscal officer has not yet refused to make the payment, and the war- rants have not yet been issued.* Neither will the writ be granted when the demand has not been properly audited and allowed. ^ Nor is it sufficient that the claimant in such cases should pray generally for the payment of what is due, without averring that some particular sum is due. And where the alternative writ and the petition on which it was granted are both deficient in this respect, a motion to quash will be sus- tained, the defect being one of substance and not merely of form.^ § 359. Another important limitation upon the rule, is, that the money from which the payment is required to be made, must be held by the fiscal officer for the corporation and as ' Hendricks v. Joliuson, 45 Miss. An. 298; State v. Dubuclet, 34 La. 644. An. 16. 2 Id. ' People «. Green, 53 N. Y. 224. * People V. Bradley, 7 Albany Law * McCoy v. Justices of Harnett Journal, 92. Co. 5 Jones, 265. See Same v. Same, " State •!). Mount, 31 La. An. 353. 6 Jones, 488. And see State «. Burbank, 33 La. CHAP, v.] TO MUlflCIPAL COEPOKATIOWS. 255 corporate funds, and the writ will not lie to require a county auditor in his official capacity to pay money which has never been under the control of the county as county funds, but has simply been in the individual possession of the auditor. ^ And a county treasurer, as regards funds of the county in respect to which he is not placed in any direct relations with creditors of the county, and which he does not hold merely in a ministerial capacity, to be paid to creditors on demand, but in his disburse- naents acts upon the warrants of other officers, can not be com- pelled by mandamus to make payment in a proceeding directed by the creditors, without the warrant of the proper auditing officers.^ § 360. Again, it is to be observed that the rule applies only in cases where the services rendered to the corporation were contracted for by proper authority, and where the demand or claim has been audited by an officer or tribunal having juris- diction of the subject matter. ^ And a board of county com- missioners can not be called upon by mandamus to make pay- ment out of the public treasury for services contracted for by them, where they were not empowered by law to contract for such services, and were devoid of any legal authority for so doing.* So the writ will not go to a county treasurer to require payment of a demand which has been allowed and ordered paid by the board of supervisors of the county, where such board had no jurisdiction over the subject matter and this fact appeared on the face of the account itself, since such approval is a mere nullity and it is the duty of the treasurer to ■ withhold payment.^ And it is a good return by a county treasurer to an alternative mandamus commanding him to pay a warrant drawn by the county auditor, that the warrant was drawn for a demand not' legally chargeable against the county, and this being shown the peremptory writ will be refused. ^ § 361. Nor will the courts interpose by mandamus to com- ' Thomas ». Auditor of Hamilton Lawrence, 6 Hill, 344. Co. 6 Ohio St. 113. ' States. Commissioners of Prank- ' People !;. Fogg, 11 Cal. 351. lin Co. 21 Ohio St. 648. ' State?). Commissioners of Frank- ' People v. Lawrence, 6 Hill, 244 lin Co. 21 Ohio St. 648 ; People v. « Keller v. Hyde, 20 Cal. 593. 256 MANDAMUS. PART I pel payment of a demand justly due from a municipal cor- poration, where other and adequate remedy may be had at law. Thus, where money for the payment of certain county bonds held by the relator is actually in the hands of the treasurer with which to make the payment, mandamus will be refused, it being apparent that an action against the treasurer upon his official bond would afford a plain and efficient remedy. ^ § 362. Until payment is actually due from the mnnicipal officer and the fund has come into his possession out of which to make the payment, the writ will not be granted, since the law does not contemplate such a degree of diligence as the per- formance of a duty not yet due. And until the officer has received the money and refused to apply it in the manner pro- vided by law, there is no failure of duty, and hence no ground for mandamus. 2 And where the writ is sought against an officer in his official capacity, as a town treasurer, to compel the payment of public funds, but it is shown that before the issuing and service of the alternative writ his term of office had expired and his successor had been elected, to whom he had turned over all the public funds in his hands, such payment constitutes a sufficient defense to the writ, his proceedings appearing to have been conducted in good faith. ^ So where a town treasurer has been restrained by injunction from paying over certain money in his hands, mandamus wiU not go to compel the payment, since he is bound to obey the injunction as long as it exists.* § 363. Another important qualification of the general rule authorizing relief by mandamus, to compel the payment of demands justly due from municipal corporations, is, that the writ should be limited, as to the amount of payment ordered, to the amount in the particular fund out of which it is required to be paid, and should never require the officer to pay more than there is in that particular fund.^ And where, by his return, the officer shows that he has no funds on hand out of ' State 11. McCrillus, 4 Kan. 350. * State v. Kispert, 31 Wis. 387. » State V. Burbank, 33 La. An. 398 ; ' Day i>. Callow, 39 Cal. 598 ; Peo- State V. Dubuclet, 34 La. An. 16. pie v. Cook, lb. 658. « State V. Lynch, 8 Ohio St. 347. CHAP, v.] TO MUNICIPAL COEPOEATIONS. 257 which the payment can be made, such return, if uncontradicted, is conclusive against granting the peremptory writ, since the courts will not interpose their extraordinary remedies where they are likely to be nugatory, i § 364. Where it is sought to compel the mayor of a city to make payment to the relator for services alleged to have been performed under an order of the city council, it has been held incumbent upon the relator to show the law imposing the duty of payment upon the mayor, and failing to show this, and it being denied by the return, it is error to grant a peremptory mandamus. 2 And while the writ is proper to compel the treasurer of a city to pay warrants drawn upon him by the comptroller, yet he will not be required to deliver to the relator in satisfaction of his warrants the bonds of the city, the treas- urer having a legal discretion to refuse such demand, and there being no duty incumbent upon him to make the payment in this manner.^ § 365. The aid of mandamus is frequently invoked to com- pel the payment of demands against municipal corporations which have been reduced to judgment, where payment of the judgments has been refused, and the judgment creditors are remediless by the ordinary process of execution against the corporation. And it may be affirmed as a general rule, that where judgments have been recovered against a municipal cor- poration, and the ordinary remedy by execution is unavailing, a refusal by the proper authorities to make payment of the judgment will warrant rejef by mandamus, it being the only remedy adequate to meet the grievance complained of.* Thus, where under the laws of the state judgments against a town- ship can not be' enforced by execution, but are to be collected like all other township charges, the writ will lie against the municipal authorities to enforce the payment of a judgment.^ ' Mitchell v. Speer, 39 Geo. 56. Marathon v. Oregon, 8 Mich. 373; ' Smith «. Commonwealth, 41 Pa. Brown s. Crego, 32 Iowa, 498 ; Dun- St. 385. can v. Mayor of Louisville, 8 Bush. « State V. Mount, 21 La. An. 869. 98. * City of Olney v. Harvey, 50 111. ' Marathon «;. Oregon, 8 Mich. 372. 453; Peopleo. City of Cairo, lb. 154; 17 258 MANDAMUS. [PAKT I. And where a county treasurer has money in his hands which has been collected for the payment of a judgment against the county, and it is made his plain and imperative duty by statute to pay over the money in satisfaction of the judgment, the writ will go to compel the payment, i N'or in such a case, does the fact that the judgment was rendered in the federal courts, deprive the state courts of their jurisdiction to enforce the pay- ment. ^ ITor is it any objection to granting relief in this class of cases, that, pending the proceedings at law which resulted in the judgment against the municipal corporation, it was, by legislative enactment, changed from a town to a city, since the municipality remains the same, notwithstanding the change in its machinery, and its obligations may still be enforced against the new body corporate.^ § 366. In conformity with the doctrine as stated in the previous section, it is held that where the mayor of a city is duly authorized and directed by acts of legislature and city ordinances in conformity therewith, to condemn certain prop- erty for wharf purposes, and is required to issue bonds of the city in payment for the land thus condemned, mandamus will go to compel the mayor to issue bonds and to raise the neces- sary funds in payment of the judgment of condemnation.* The ground upon which the courts proceed in such a case, is, that an officer of the corporation has undertaken to set at naught the corporate will, and mandamus affords the only rem- edy. And since the city itself would be entitled to the writ against an officer who had disregarded his duty and set the corporate will at deiiance, with- equal propriety may the real parties in interest avail themselves of the same remedy. ^ § 367. Mandamus is the appropriate remedy to compel a county treasurer to pay over to a town treasurer public funds belonging to the town, to the custody of which its treasurer is entitled.' And in such case, on appeal from the judgment of an inferior court awarding the peremptory mandamus, if the ' Brown v. Crego, 33 Iowa, 498. * Duncan v. Mayor of Louisville, ' Id. 8 Bush, 98. ' City of Olney v. Harvey, 50 111. ' Id. 453. « State v. Hoeflinger, 81 "Wis. 357 CHAP. V.j TO MUNICIPAL COEPORATIOWS. 259 appellate tribunal is satisfied that the relator is then entitled to the writ, it may confirm the judgment of the court below, regardless of whether such judgment was correct at the time it was rendered.! III. Municipal Taxation, aito Herein of Munioipal Aid Sdbsceiptions and Bonds. § 368. Important distinction. 309. Specific duty of levying tax may be enforced by mandamus. 370. Thie rule applied to taxation for public improvements. 371. Writ only granted where private rights have intervened. 372. Pendency of proceedings in chancery no bar to mandamus. 373. Taxes in payment of bounties to volunteers. 374. Taxation for school purposes. 375. Issuing tax warrants by supervisors ; re-payment of taxes improp- erly levied. 376. Damages in removal of county seat. 377. Taxation in payment of judgment against municipality. 378. Judgment against school district. 379. Duty of levying the tax a continuing one; successors in office; resignation ; demand ; want of funds. 380. Writ lies from state courts though judgment was recovered in federal courts ; validity of bonds settled by judgment. 381. The jurisdiction cautiously exercised. 382. Municipal railway aid bonds ; mandamus lies to compel levy of tax in payment of interest ; conditions requisite. 383. Title to the bonds; averments necessary; sale below par value; remedy in equity. 384. Preliminary proceedings presumed regular. 385. Writ refused where bonds are invalid for want of assent of tax- payers. 386. Not granted where it would be nugatory. 387. Particular method of taxation for particular purpose ; assessment of subscription by county courts. 388. Partial compliance with duty insufficient. 389. Mandamus granted to compel municipal subscription in aid of railway. 390. Actual contract relation necessary between municipality and rail- way ; vote of electors insufficient. 391. Railroad must not interpose unreasonable conditions. » State e. Hoeflinger, 31 Wis. 257. 260 MAlSTDAMUe. [PAET I. 393. When jurisdiction exercised by federal courts. 393. Mandamus granted for levy of tax in payment of judgment upon municipal aid bonds. 394. The jurisdiction exercised in the federal tribunals. 395. Effect of injunction from state courts; effect of subsequent adverse decisions or legislation by state. 396. Corporation concluded by judgment. 397. When statute construed as imperative; return should disclose facts concerning levy. 398. Mandamus to compel apportionment. 399. Want of capacity in corporation. 400. Surrender of illegal municipal bonds. § 368. Questions of much nicety have frequently arisen in determining how far the courts may, by the extraordinary aid of a mandamus, control the taxing power of municipal bodies and compel the levying of taxes for general or speciiic pur- poses, and the extent to which the interference may be carried without encroaching upon the element of sovereignty which is a necessary incident to the exercise of the taxing power. And in the discussion of these qxiestions, the distinction so often adverted to in these pages between duties of a manda- tory or ministerial nature, and those which are accompanied by the exercise of judgment and discretion, will be found to solve most of the difficulties with which the subject has been surrounded through a failure to recognize such distinction. § 369. The first general rule to be considered in our exam- ination of the topic under discussion is, that where the specific duty is imposed by law upon a municipal corporation of levy- ing a particular tax for some purpose of public utility, and the duty is so plain and imperative as to admit of no element of discretion in its exercise, mandamus is the appropriate and indeed the only adequate remedy for a refusal on the part of the corporate authorities to perform this duty.i A distinc- ' State V. City of Davenport, 12 Co. 10 Wend. 363 ; People «. Ben- Iowa, 335 ; State «. City of Milwau- nett, 54 Barb. 480 ; People v. Super- kee, 25 Wis. 123; State ». Smith, 11 visors of Chenango, 8 N. Y. 317; Wis. 65; Watts v. Police Jury of People v. Supervisors of Otsego, Carroll, 11 La. An. 141; Tarver v. 53 Barb. 564; People «. Supervisors Commissioner's Court, 17 Ala. 537; of Herkimer Co. 56 Barb. 453; Wil- People e. Supervisors of Columbia kinson ». Cheatham, 43 Qeo. 358; CHAP. V.J TO MtJNIOIPAL COEPOEATIOWS. 261 tion has been taken in the application of the rule, between cases where the duty devolving upon the municipal authorities is merely a general duty of providing for the payment of all indebtedness against the municipality, and cases where a special duty is made obligatory upon the corporate authorities to levy and collect a tax for a particular purpose, or to meet an obligation created by a special law, and it has been held in the former class of cases, that mandamus would not lie, but that in the latter the courts might freely interpose, i And if the duty is thus specifically imposed, it will not be performed merely by making a levy and providing generally for the col- lection of the tax, but it should be specifically performed and the tax should be set apart for the payment of the particular obligation or indebtedness in question.^ But it is a sufficient return to the writ by the corporate officers to whom it is directed, to show that they have not neglected or refused to provide for the payment of the obligation whose enforcement is sought, and such a return is not demurrable.^ § 370. Frequent instances of the application of the rule as above laid down have occurred in cases of taxation for muni- cipal improvements, such as the erection of public buildings, the construction of harbors and the like. And where, by act of legislature, the duty is obligatory upon certain county offi- cers of levying and collecting taxes for the erection of public buildings, this duty may be enforced by mandamus, there being no other legal remedy.* So where a city is authorized by legislative enactment to build a harbor and to issue its Trustees v. Dillon, 16 Ohio St. 38 ; 435 ; City of Galena v. Amy, 5 Wal. State V. Harris, 17 Ohio St. 608; 705; Butz «. City of Muscatine, 8 Morgan ii. Commonwealth, 55 Pa. Wal. 575; Mayor «. Lord, 9 Wal. St. 456; Rodman v. Justices of 409. Larue Co. 3 Bush, 144; Pegram «. 'State v. City of Davenport, 12 Commissioners of Cleaveland Co. 64 Iowa, 335. N. C. 557 ; Lutterloh v. Commission- ' Id. ers of Cumljerland Co. 65 N. C. 'Id. 403 ; Shoolbred v. Corporation of * Tarver «. Commissioner's Court, Charleston, 3 Bay, 63; Von Hoflf- 17 Ala. 527; Watts ii. Police Jury man «. City of Quincy, 4 Wal. 535 ; of Carroll, 11 La An. 141. Supervisors v. United States, lb. 262 MANDAMUS. [PAET 1. bonds for that purpose, and to raise money by taxation in payment of tlie principal and interest of the bonds, upon failure of the city to perform this duty, a contractor who has completed the work and obtained judgment for the amount due for his services, is entitled to the writ to compel the city authorities to levy and collect a tax in payment of his judg- ment, i And where it is made by act of legislature the duty of city authorities to levy an assessment to pay for buildings torn down in the opening of a street, the duty being absolute and specific may be enforced by mandamus. ^ § 371. But in all cases of this nature, it is essential to the exercise of the jurisdiction that private rights should have intervened requiring the protection of the courts. ^ And where the statute providing for the levy of the tax is merely permissive, as in the case of an act of legislature authorizing but not requiring county commissioners to levy a tax for the- construction of a road, no action having been taken under the statute and no private rights having intervened, the writ will not go.* So where no private rights have as yet been affected by the proceedings, a mere individual tax-payer, who has no other interest than the public generally, is not entitled to the writ to compel the levying of a tax for an amount found necessary by commissioners of highways for the construction of a bridge. ^ And the rule in no manner conflicts with the discretion of municipal authorities as to the construction of a work of public improvement which is not made their impera- tive duty, but is merely permissive upon them, and in such case they will be left to exercise their discretion in their own way and upon their own responsibility.* § 373. While it is generally true that the pendency of proceedings in chancery involving the same subject matter, ' State V. City of Milwaukee, 35 ■* Rollersville & Portage Turn- Wis. 123. pike v. Commissioners of Sanduslvy ^ Shoolbred i). Corporation of Co. 1 Oliio St. 149. Cliarleston, 3 Bay, 63. ' People v. Supervisors of Vormil- 2 Rollersville & Portage Turnpike ion, 47 111. 259. V. Commissioners of Sandusky Co. " Rollersville & Portage Turnpike 1 Ohio St. 149 ; People v. Supervis- v. Commissioners of Sandusky Co. ors of Vermilion, 47 111. 259. 1 Ohio St. 149. CHAP, v.] TO MUNICIPAL CORPOEATIONS. 263 and in a court which is fully empowered to administer relief, is a bar to proceedings in mandamus, yet if it is apparent that the questions involved can not be appropriately or finally determined in the suit in chancery, the aid of a mandamus may be granted, notwithstanding the pendency of such suit. Thus, where commissioners of public parks seek by mandamus to compel a county clerk to receive their estimate of expenses necessary for park improvements, and to include such estimate in the warrants for the collection of the taxes, as provided by law, the writ may be granted, notwithstanding the pendency of a suit in chancery wherein a property holder seeks to enjoin the clerk and commissioners from doing the act whose per- formance is sought by mandamus. In such case, it is obvious that full and complete justice can not be done to all parties by the proceedings in chancery, since they are no bar to another action by another party against the sanie defendants for the same subject matter, and hence the propriety of interfering by mandamus. 1 § 3Y3. The duty of levying municipal taxes in payment of bounties to volunteers in the military service, affords a proper subject for the exercise of that branch of the jurisdiction .under discussion. And where a local board of municipal authorities is entrusted by law with full power to contract loans in payment of bounties, to soldiers, and under such authority has incurred a debt for the payment of such boun- ties, mandamus will lie to assess the necessary tax in payment of the indebtedness, and the writ m^j go to the successors in ofliee of those who incurred the obligation. ^ So a county treasurer may be compelled by mandamus to pay over to the proper authorities of a town, the amount of a tax levied for the payment of bounties to volunteers, the tax having been held constitutional and valid. ^ And in deteraiining whether a particular system of paying such bounties has been adopted in their county, county commissioners are held to act in a ministerial rather than a judicial capacity. It is, therefore, no ' People V. Salomon, 51 111. 55. 55 Pa. St. 456. " Morgan v. The Commonwealtli, ' Trustees v. Dillon, 16 Ohio St. 38. 264 MAWDAMTIS. [PAET I. sufficient return to the alternative writ commanding sucli com- missioners to levy the tax, that after investigation they are unable to conclude that the system of paying bounties speci- fied in the statute has been adopted in their county, since, if the facts exist making the statute applicable to their county, the commissioners are bound to ascertain the facts correctly and to perform the duty enjoined by the statute, i But in no event will the writ go to compel the levying of such a tax under a statute held to be void.^ § 374. Relief by mandamus is also granted to compel municipal authorities to raise by taxation the necessary funds for the support of public schools. And the writ will lie to a board of village trustees, requiring them to collect a tax for school purposes, where this duty is made obligatory upon them by a plain and imperative statute.^ So the common council of a city may be compelled by mandamus to comply with the duty imposed by their charter of raising by taxation the necessary funds for educational purposes in the city, the amount having been designated and fixed by the proper authority.* And where the duty is clearly incumbent by law upon the collectors of taxes in the different wards of a city, to pay over to the superintendent of schools, out of the first moneys collected by them, such sums of money as are from time to time directed to be raised for public school purposes, mandamus lies upon a refusal to perform the duty. ^ § 375. "Where a board of supervisors have neglected to issue warrants for the collection of a tax at their regular meet- ing at the time required, the writ will go to compel them to meet and issue the warrants." So, where a plain and impera- tive statute mates it the duty of a board of supervisors, to determine the amounts of taxes which have been improperly assessed against citizens of the county and to cause such taxes to be repaid, this duty may be enforced by mandamus.'' 1 State V. Harris, 17 Ohio St. 608. nango, 8 N. Y. 317. ' State «. Tappan, 29 Wis. 664. ' People v. Supervisors of Otsego, » People 11. Bennett, 54 Barb. 480. 53 Barb. 564, 51 N. Y. 401 ; People * State v. Smith, 11 Wis. 65. v. Supervisors of Herkimer Co. 56 ' State V. Hammell, 3 Vroom, 446. Barb. 452. ' People B. Supervisors of Che- CHAP. V.J TO MUNICIPAL COKPORATIOWS. 265 § 3Y6. Wliere the removal of a county seat is authorized and directed by a statute, which also provides a mode for ascer- taining the amount of damages incurred by the removal, man- damus will lie to the proper officer of the county to levy a tax in payment of damages sustained by the removal, the amounts due having been definitely ascertained in the mode provided by the statute, i § 377. The enforcement of judgments against municipal corporations affords frequent occasion for invoking the extra- ordinary aid of the courts by mandamus. Here, again, we are met by the same distinction already noticed, between the enforcement of duties merely ministerial in their nature, and those involving the exercise of certain discretion and judg- ment. And whenever the duty of levying a tax in satisfac- tion of a judgment against a municipal corporation, is plainly and specifically imposed by law upon the corporate authorities, or the ordinary remedy by execution is unavailing, and it is the plain and unmistakable duty of the corporate officers vested with the taxing power, to exercise that power for the purpose of satisfying the judgment, mandamus will go to compel the levying and collecting of the necessary tax.^ Where, therefore, a city is required by its charter, whenever judgment is had against it, to levy and collect the amount of the judgment -like- other charges against the city, the writ will go to compel the city authorities to perform this duty.^ So, ' Wilkinson «. Clieatliam, 43 Geo. Amy, 5 Wal. 705 ; Benbow v. Iowa 358. City, 7 Wal. 313; United States ». ' State V. City of Madison, 15 Treasurer of Muscatine Co. 3 Abb. Wis. 80; State v. Supervisors of Be- U. S. 53; S. C. sub nom. Lansing v. loit, 30 Wis. 79 ; State v. Common County Treasurer, 1 Dill. C. C. 522 ; Council of Milwaukee, 30 Wis. 91 ; Welch v. Ste. Genevieve, lb. 130. State 1}. City Council of Racine, 32 And see Butz v. City of Muscatine, Wis. 358 ; Gorgas v. Blackburn, 14 8 Wal. 575 ; Mayor v. Lord, 9 Wal. Ohio, 353; Coy ». City Council, 17 409; Britton «. Platte City, 3 Dill. Iowa, 1 ; Frank ■v. San Francisco, C. C. 1 ; Boynton ii. District Tuwu- 31 Cal. 668. And see Goooh 4). Greg- ship of Newton, 34 Iowa, 510; ory, 65 N. C. 143 ; Lutterloh v. Com- Worthington v. Hulton, 13 L. T. R. missioners of Cumberland Co. 65 N. S. 463. N. C. 403 ; Supervisors v. United » State v. City of Madison, 15 States, 4 Wal. 435 ; City of Galena v. Wis. 30. 266 MANDAMUS. ' [PAKT I. where a creditor lias obtained judgment against a city, which can only be satisfied by the levy of a particular rate or tax for a' given year, the duty thereby devolves upon the municipal authorities of levying such rate, not exceeding the maximum within their powers, as will pay off the judgment. Such duty, it is held, results from the plain moral as well as legal obliga- tion on the part of the city to pay its debts, and no discretion can rightfully be claimed as to its performance by the city ofiicials. It follows, therefore, that mandamus will lie for the enforcement of the duty.i And where it is made by law the plain duty of a county board of supervisors to provide for the payment of all debts against the county, they being vested with no discretion in the matter, if they refuse to make provi- sion for the payment of a judgment debt, they may be directed by mandamus, either to appropriate the necessary amount from the revenues of the county, or to provide for the payment by taxation.^ So, where a judgment is obtained against a town in its corporate capacity, and it is averred in the alternative writ that the corporation has no property with ^vhich to satisfy an execution, the writ will go to compel the officers of the town to levy and collect a tax in satisfaction of the judgment. ^ And the fact that no execution can issue against a county, which represents in some sense the sovereignty of the state, has been held sufficient warrant for sustaining a mandamus to county authorities, directing the levy of a tax in payment of a judgment against the county.* ' Coy V. City Council, 17 Iowa, 1. judicial department can not prop- ^ Frank v. San Francisco, 31 Cal. erly interfere, even though the party 668. aggrieved has no other remedy. " Gorgas i). Blackburn, 14 Ohio, The power of the county authorities 252. to levy a tax is held to be a part of ' Lutterloh v. Commissioners of the fiscal or taxing power of the Cumberland Co. 65 N. C. 403. But state, delegated to the several coun- in Tennessee, the courts refuse to ties, and the officers to whom the interfere by mandamus to compel duty is entrusted, within their the levying of a tax by county au- limited sphere have a discretion to thorities in payment of claims exercise of the same nature as that against the county which have been of the legislature itself. Justices of allowed, on the broad ground that Cannon Co. v. Hoodenpyle, 1 the taxing power is in its nature a Humph. 145. ]pq;i»lativo function, with which the CHAP, v.] TO MUNICIPAL CORPORATIONS. 267 § 378. The jurisdiction in the class of cases under con- sideration has been extended to officers of school districts, on whom is imposed the duty of levying a tax for the payment of judgments recovered against the district, and mandamus lies to compel the performance of this duty, where no j)rop- erty of the municipality can be found subject to levy under execution. The duty of levying a tax under such circum- stances becomes an imperative obligation, and since the court can not act upon the individual electors of the school district to compel them to vote the tax, it must necessarily proceed by mandamus against the board of directors, who are the agents and representatives of the district, to compel them to perform the duty.i § 379. The cases already cited aiford sufficient illustration of the doctrine under discussion and of its application in practice. It remains, however, to be observed, that the duty of levying a municipal tax in satisfaction of a judgment against the corporation, is treated as a continuing duty, and it does not terminate with the levying of a single tax which is collected only in part, but ends only when the whole amount is collected and the judgment paid. Hence it affords no excuse for a partial performance of the duty that the municipal authorities have levied and collected a portion of the tax, but that certain tax-payers have neglected to pay tlieir assess- ments. ^ And since the duty is a continuing one, the retire- ment from office of a portion of the mimicipal authorities affords no bar to relief by mandamus, and the duty may be enforced against their siiccessors in office. ^ Nor can the corporate officers absolve themselves from the responsibility of levying the tax by a fraudulent resignation of their offices.* And' where the duty of the municipality to levy and collect the tax in payment of the judgment is plain and imperative, it affords no excuse for their inaction that a demand had not been made for the performance of the duty, before invoking ' Boynton v. District Township City, 7 Wal. 313. of Newton, 34 Iowa, 510. * State v. City of Madison, supra. ^ State V. City of Madison, 15 * Gorgas v. Blackburn, 14 Ohio, Wis. 30. And see Benbow v. Iowa 353. 268 MANDAMUS. [pAET I. the extraordinary aid of the courts. ^ Not is it a sufficient return to a mandamus commanding the levying of a muni- cipal tax in payment of a corporate indebtedness, that there is no money in the treasury, since the very object of the writ is to procure money. ^ § 380. Mandamus will lie from the state courts to compel municipal authorities to exercise their taxing power for the satisfaction of a judgment, even though the judgment were obtained against the municipality in the federal courts. ^ And upon application for the writ to command municipal authori- ties to levy a tax in payment of judgments against the town, the validity of the bonds on which the judgments were obtained can not be inquired into or called in question, since this is settled by the judgment itself and the town is estopped by that decision.* § 381. Although, as we have seen in the preceding sections, the jurisdiction by. mandamus to set in motion the taxing power of municipalities is well established, it is to be exercised with much caution, and the interference will not be granted for trivial causes. And where the judgment which it is sought to enforce in this manner has not been in existence a sufficient length of time to satisfy the court, in the absence of other proof, that the municipal authorities have any disposition to withhold payment unreasonably, the return averring that a part of the burden properly belongs to another county, and that respondents are and always have been ready and willing to pay the relator that portion of the judgment rightfully due from their county, the peremptory writ will be refused. ^ § 382. We come next to a consideration of the principles upon which the taxing power of municipal corporations may be set in motion, to meet their obligations incurred by muni- cipal subscriptions in aid of railway and other kindred euter- ' State V. City Council of Racine, of Madison, 15 Wis. 30. 22 Wis. 258. ' State i>. Supervisors of Beloit, ' Huntington v. Smith, 25 Ind. supra; Mayor v. Lord, 9 Wal. 409. 486. « Tillson v. Commissioners of Put- ° State V. Supervisors of Beloit, 20 nam Co. 19 Ohio, 415. Wis. 79. And see State v. City CHAP, v.] TO MUNICIPAL CORPORA TIOWS. 269 prises of a quasi-public nature. And it is to be premised tbat where municipal officers have, by authority of law, pledged the faith of the municipality in aid of such enterprises, and have issued municipal bonds in payment of their subscriptions to the capital stock, the duty of levying a tax to meet such obligations is merely a ministerial duty, unattended with the , exercise of any special discretion. And the rule may now be regarded as too firmly established to admit of doubt, that where municipal corporations are authorized by law to sub- scribe to the stock of railway companies, and to issue their bonds in payment of such subscriptions, and are also required to levy a tax in payment of the interest upon bonds thus issued, mandamus will lie on behalf of the bond-holders, to compel the corporate authorities to levy the necessary tax in payment of the interest on such bonds. i The conditions ' Maddox v. Graham, 3 Met. Ky. 56 ; Shelby Co. Court v. Cumberland & Ohio R. Co. 8 Bush. 309 ; Com- missioners of Knox Co. B.Aspinwall, 34 How. 376 ; Commonwealth ■». Pittsburgh, 34 Pa. St. 496 ; Common- ' wealth «. Commissioners of Alle- gheny Co. 87 Pa. St. 277 ; Same v. Same, 83 Pa. St. 218 ; State v. Com- missioners of Clinton Co. 6 Ohio St. 280; Pegram v. Commissioners of Cleaveland Co. 64 N. C. 557; Com- missioners of Columbia Co. ». King, 13 Fla. 451 ; Bobinson j). Super- visors of Butte, 43 Cal. 353 ; Flagg V. Mayor of Palmyra, 88 Mo. 440. And see People ». Mead, 34 N. Y. 114. Commonwealth ■». Pittsburgh, 34 Pa. St. 496, is a leading case upon the subject under discussion. This was an alternative mandamus to the select and common councils of the city of Pittsburgh, directing them to assess and levy a tax for the pay- ment of interest upon bonds of the city, issued in payment of its sub- scription to the capital stock of a railway. The court in an able and exhaustive opinion, delivered by Mr. Justice STEONa, say, p. 509 : * * "We shall spend no time in endeav- oring to prove, what is apparent upon the face of tliis statement of facts, that it presents a fit case for a mandamus. Here is a clear legal right in the relator, a corresponding duty in the defendants, and a want of any other adequate and specific remedy. No action at law would lie at the suit of the relator against the defendants for not making pro- vision for the payment of the inter- est, for not levying and collecting a tax, which is the thing sought to be accomplished by this writ. That an action might be brought against the city upon the bonds themselves is true, but that is not the right here asserted, nor would it enforce the duty alleged. The liability of the city to pay- the bonds is one thing, the duty of the councils to make provision for their payment is quite another. The city councils are 270 MANDAMUS. [PAET requisite to the exercise of the jurisdiction in this class of cases are, a clear, legal right in the owners of the bonds, coupled with a corresponding duty on the part of the municipal authorities to provide the means of payment, and the want of any other adequate and specific legal remedy. These con- ditions co-existing, the municipal authorities who are charged with the duty of providing for the payment of the interest upon the securities issued by the corporation, may be required by mandamus to perform their plain and imperative duty, i ISTor is it necessary, in this class of cases, to show any express refusal in terms, upon the part of the corporate officers, to lay the foundation for the writ, it being sufficient if it is apparent from their conduct that they do not intend to perform the act required, 2 especially where it is averred in the return that the public bodies, and the members of the council are public officers. Nothing is better settled than that mandamus is the appropriate writ by which the commonwealth com- pels the performance of a public duty. The propriety of this form of remedy for such a case as this relator presents was fully vindicated In Commonwealth m rel. Thomas v. The Commissioners of Allegheny Co. 8 Casey, 318, and both English and American authorities were re- ferred to in support of its use. Cases are numerous in which the writ has been sustained to enforce the levy and collection of a tax: Queen v. The Wardens of the Parish of St. Saviour, 7 Ad. & El. 925 ; Queen v. The Select Vestrymen of St. Marga- ret, 8 Ad. & El. 889 ; Queen ». Thomas, 3 Ad. & E.N.S. 589. In the case of The Justices of Clarke ». The Paris etc. Turnpike Road Company, 11 B. Monroe, 143, it was decided that mandamus was the appropriate and only remedy for compelling compliance with a duty to levy money to pay a subscription to the stock of a turnpike road company. In Graham «. City of Maysville, 6 Am. L. R. 589, it was applied by the court of appeals of Kentucky to a case in all essential particulars like the present. Many other similar decisions might be cited. If, then, the relator is the owner of some of the bonds upon which interest is due and payable, and if it be the duty of the defendants to make pro- vision for the payment of the inter- est by levying and collecting a tax, a duty which they have neglected and refused to perform, it is no novelty that they are called upon by the writ of mandamus to discharge that duty. The novelty is in the necessity for the writ, and not in the writ itself." ' Commonwealth v. Pittsburgh, 34 Pa. St. 496 ; Maddox v. Graham, 3 Met. Ky. 56 ; Commonwealth «. Commissioners of Allegheny Co. 33 Pa. St. 318. ' Maddox v. Graham, 3 Met. Ky. 56; Commonwealth v. Pittsburgh, 34 Pa. St. 496. CHAP, v.] TO MUNICIPAL COEPOEATIONS. 271 respondents are resisting the payment of the railway obliga- tions. ^ And the fact that actions at law have been brought against the municipality upon the unpaid coupons, afibrds no objection to the issuing of the writ, where such actions have been dismissed before judgment in mandamus. ^ J>Jor is it a sufficient return to the alternative writ in this class of cases, that there are no funds in the hands of the officers with which to meet the interest iipon the municipal obligations, it being their duty to levy a tax to procure funds. ^ § 383. It is not essential to the exercise of the jurisdiction in this class of cases, that the relator's title to the bonds should be set forth in detail, and it is a sufficient averment of his title to allege that he purchased the bonds, without giving the consideration for the purchase, or the method of the transfer.* l^or is it necessary to allege in the alternative writ when the principle of the bonds becomes due and payable, nor the rate of interest which they bear, nor the time and place of payment of interest. ^ And the relief will be granted, notwithstanding the bonds have been disposed of below their par value, in violation of law.* Nor does the existence of a remedy in equity constitute a sufficient objection to granting the aid of a mandamus in this class of cases.' § 384. While in this class of cases the courts will hold the bond-holder to a knowledge of the law authorizing the issue of the bonds, yet they will not hold him bound to inquire into the regularity of the municipal election voting the railway aid subscription, nor will they hold him bound to inquire as to the qualifications of the voters, nor as to other details affecting the regularity of the bonds. ^ The issuing of the bonds authorizes the presumption in favor of a hona fide holder, that all such pre-requisites have been complied with, in the time, form and ' Maddox «. Graham, mpra. v. Commissioners of Alleglieny Co. 2 Id. 37 Pa. St. 277. ' Pegram «. Commissioners of ' Commonwealth «. Commission- Cleaveland Co. 64 N. C. 557. ers of Allegheny Co. 33 Pa. St. 218. * Commonwealth v. Pittsburgh, 34 ' Id. Pa. St. 496. " Flagg «. Mayor of Palmyra, 33 » Commonwealth «. Pittsburgh, 84 Mo. 440. And see Mayor v. Lord, 9 Pa. St. 496. And see Commonwealth Wal. 409. 272 MAKDAMUS. [PAET I. manner required by law, and objections upon the ground of irregularities in such preliminary proceedings will not avail upon the application for mandamus. ' ISTor is it necessary that the bond-holder should first resort to suit to fix the amount of interest due upon his bonds, since this is merely a question of mathematical calculation, and can as well be determined by the municipal records as by the judgment of a court. ^ § 385. "While, however, the courts will not hold the relator to the necessity of an inquiry as to the regularity of the details connected with the issuing of the bonds, or with the previous proceedings, yet it is a sufiicient objection to granting relief that the bonds are absolutely invalid. And where it is shown that the necessary assent of the tax-payers of the municipality was not obtained to the issuing of the bonds, as required by the act authorizing their issue, and that the bonds are therefore invalid, the holder is not entitled to the aid of a mandamus.^ § 386. The general doctrine being well established that mandamus will not lie in cases where the writ, if granted, would be nugatory, the peremptory writ will be refused where the purpose of the application is to compel county authorities to levy taxes in payment of certain bonds of the county, which are required by law to be paid o\it of the taxes collected in certain specified localities in the county, where the return of the oificers shows that they have no knowledge or means of information sufiicient to enable them to assess the tax aarainst ' Flagg V. Mayor of Palmyra, title no one else can. The town has supra. no power to recognize these bonds, ^ Commissioners of Columbia Co. or in any manner to raise money to V. King, 13 Pla. 451. pay them. The bonds being in- ' People V. Mead, 86 IST. T. 334. valid, the plaintiflF is in the same G-BOTEB, J., says : " The bonds and position he would be if he had no coupons are the foundation of the bonds at all, and the money was plaintiffs claim, and these being raised as a donation for him. In invalid, his right fails, and he hav- such a case, I apprehend, no one ing no right to any money, has no would insist that a mandamus right to a mandamus to compel any would lie to compel officers to do body to do any act to enable him acts to enable the plaintiflF to get to obtain it. It is said that if the the money." town does not dispute the plaintiffs OHAP. V.J TO MUNICIPAL COEPOEATIONS. 273 tlie lands, and no means of determining the particular districts to be assessed according to law, the records supplying such information having been destroyed, i § 387. Where a particular method of raising money by municipal taxation for local purposes is provided by law, it would seem that the person entitled to receive the money may have the aid of mandamus to compel its payment, even though a possible remedy may exist by action at law. Thus, where it is provided by statute that the interest upon certain town bonds shall be met by the levying of a tax, and the money thus raised shall be paid to the bond-holders by commissioners designated for that purpose, the writ will go to require such commissioners to make the payment, an action against the town not being regarded as an effectual remedy. ^ And where, under an act of legislature, certain county courts are authorized to take and subscribe stock for their counties in an incorporated turnpike company, and are empowered to assess the amount of stock so subscribed upon the real estate within their counties, mandamus is the proper remedy to require such courts to carry out their obligation and to make the necessary assessment in payment of their subscription, no other remedy being adequate to enforce the performance of the duty.^ § 388. A partial compliance with the law creating the obligation on the part of the municipal authorities to levy the tax, will not avail against the exercise of the jurisdiction by mandamus. And where it is made by law the duty of a board of county supervisors to levy and collect each year a tax upon all the taxable property in the county, sufficient for the pay- ment of all the bonds of the county outstanding, and to provide a certain fund for their redemption, if the supervisors have knowingly made an insufficient levy for these purposes, the writ will go to command them to levy a sufficient tax.* § 389. The propriety of the writ of mandamus, as a means of compelling delinquent municipalities to discharge liabili- ' Ackerman «. Desha County, 37 Turnpike Co. 11 B. Mon. 143. Ark. 457. * Robinson v. Supervisors of 2 People «. Mead, 34 N. Y. 114. Butte, 43 Cal. 353. ' Justices of Clarke v. Paris etc. 18 274 MANDAMUS. [PAET I, ties whicli they have incurred under stock subscriptions in aid of railways, is thus shown to be fully established. ^ Nor is the interference of the courts for this purpose confined to cases where the bonds or obligations of the municipal corporation have already been issued, but the relief may also be granted to enforce the subscription and to compel the issuing of the municipal securities pledged in aid thereof.^ Thus, the writ will go to compel a board of county supervisors to subscribe to the stock of a railway company, when the duty of making such subscription is plainly required by law. ^ But in such case, it is held to be the duty of the railway company to first demand of the supervisors that they make the subscription, and to tender the books of the company and request the sub- scription.* And where the authorities of a municipal corpora- tion, duly authorized by law to subscribe to the stock of a railway company, have made such subscription, with the assent of a majority of the electors of the municipality, as required by law, mandamus is the appropriate remedy to procure the issuing and delivery of the bonds to the railway, in accordance with the subscription. In such case, a clear, legal right is shown on the part of the railway, involving a corresponding official duty on the part of the municipal authorities, for the performance of which mandamus affords the only adequate and specific remedy. ^ § 390. A distinction, however, is to be recognized between cases wherein the rule as above stated has been applied, and the case of a mere vote of municipal electors authorizing the subscription, but unaccompanied by any act upon the part of the officers or agents of the municipality, whereby a contract 1 See also Commonwealth v. Per- visors of Napa Co. 30 Cal. 435. kins, 43 Pa. St. 400. ' Oroville & Virginia R. Co. v. ' Napa Valley R. Co. v. Super- Supervisors of Plumas Co. 37 Cal. visors of Napa Co. 30 Cal. 435 ; Peo- 354. pie 1). Ohio Grove Town, 51 111. 193; ° Cincinnati etc. R. Co. v. Com- £Jx parte Selma & Gulf R. Co. 45 missioners of Clinton Co. 1 Ohio Ala. 696 ; Cincinnati etc. R. Co. v. St. 77 ; People v. Ohio Grove Town, Commissioners of Clinton Co. 1 51 111. 193; .Sa; parte Selma & Gulf Ohio St. 77. R. Co. 45 Ala. 696. But see S. C. 46 ' Napa Valley R. Co. v. Super- Ala. 230. CHAP. V.J TO MTJWICIPAL COEPOEATIONS. 275 relation has been established between the municipal corpora- tion and the railway. And since the people of a county can not, in their primary capacity, enter into contract relations binding upon the county, but must act through their duly constituted agents or ofScers, it follows that a mere vote of the people of a county authorizing the subscription, does not of itself constitute a contract with the railway, nor is it a proposition which can ripen into a contract upon performance by the railway of the conditions annexed to the vote. Such a vote, therefore, does not constitute sufficient foundation for a mandamus to compel the county to issue its bonds, or to levy a tax in aid of the subscription, nor will a tender of its stock by the railway, at or before the making of its request upon the corporate authorities to make the subscription, vary the rela- tions of the parties, or afford ground for the relief.^ In such ' Union Pacific R Co. v. Commis- sioners of Davis, 6 Kan. 856 ; Com- missioners of Crawford v. Louis- ville, New Albany & St. Louis Air Line R Co. 39 Ind. 192. In Union Pacific R. Co. V. Commissioners of Davis, Mr. Justice VALBNTiTtB, pro- nouncing the opinion of the court, says, p. 271 : " It seems to be, par- tially at least, admitted by the plain- tiffs, that the vote alone of the peo- ple of Davis county, did not create a contract between the county and the railway company. But it is claimed that the vote was of itself a proposition to the railway com- pany, which the railway company accepted by performing the condi- tions of the vote, and thereby a con- tract was created between the rail- way company and the county, and binding upon the county. But the people of counties do not act in their primary capacity in making contracts. They act only through their legally constituted agents. It is the commissioners of the county only that are authorized to sub- scribe for stock in a railroad com- pany, and not the people of the county, (Laws of 1866, pp. 73, 73;) and a railway company can not contract with a county in any way, except through the county commis- sioners. * * * In this case the people of Davis county did not make any proposition to the rail- way company, but simply author- ized their agents, the county com- missioners, to make a proposition to said company, to subscribe for stock in the company, provided the company should build their road through Davis county, a thing which it must be presumed the company intended to do, whether the stock was subscribed or not, as the corporation was created and or- ganized among other things for that express purpose, long before said vote was had. * * * "We do not suppose that the voluntary tender of the stock by the railroad com- pany, at or before the making of the request upon the commissioners to subscribe therefor, and to issue 276 MANDAMUS. [PAET I. case, until a contract has been actually consummated between the officers of the county and the railway, the acts of the former and of the voters of the county are regarded as between themselves, the one as principal and the other as agent. ISTo contract exists with the railway company, and until the money is actually raised, or the stock taken, the principal and agent, that is, the people and their officers, alone have control of the proceedings, and mandamus will not lie.' § 391. While it is conceded that mandamus is the proper remedy to enforce a compliance upon the part of municipal authorities, with their subscriptions in aid of railway and other kindred enterprises of a quasi-public nature, and to com- pel the delivery of municipal aid bonds which have been regularly voted, where the railway has complied with all the conditions necessary to entitle it to the bonds, the jurisdiction will not be exercised where the demand for the municipal obligations is coupled with unreasonable or illegal conditions. And where a county has subscribed to the stock of a railway company, and the company in tendering its stock and demand- ing the bonds of the county, couples the tender with conditions which are unwarranted by law, as that the stock, after delivery to the county, shall be immediately delivered back to the rail- way company for a merely nominal consideration, mandamus will not go in aid of the railway, even though the conditions were in pursuance of an agreement entered into at the time of making the subscription, such an agreement being a fraud jper se, which the courts will not recognize or enforce by man- damus. ^ the bonds of the county in pay- the said commissioners will not be ment thereof, in anywise changes compelled on any application of the case. It is our opinion that the railway company to subscribe there never was any contract be- for said stock. The writ of man- tween the county and the railway damns is refused." company ; and, therefore, as a neces- ' Commissioners of Crawford ». sary consequence, the county com- Louisville, New Albany & St. Louis missioners, who are the agents and Air Line R. Co. 39 Ind. 192. the representatives of the county, " County Court of Macoupin ii. and not of the railway company, The People, 58 111. 191 ; County owe no duty to the railway com- Court of Madison e. The People, Ih pany ; and as a further consequence, 456. CHAP. V.j TO MUNICIPAL COEPOBATIOlirS. 277 § 392. As regards the jurisdiction of the circuit courts of the United States, in the class of cases under consideration, it is to be borne in mind that these courts can only interfere by way of mandamus in cases where the use of the writ is neces- sary to the proper exercise of their existing jurisdiction. And while, as we shall presently see, these courts freely interpose the aid of mandamus to compel the payment of judgments upon municipal obligations rendered therein, they will not grant the writ to compel municipal authorities to levy and collect a tax for the payment of interest upon bonds of the municipality, where the claim for interest has not been reduced to judgment in the federal courts. The granting of the writ in such case would be the exercise of an original jurisdiction, from which they are expressly barred, their use of this extra- ordinary remedy being limited strictly to cases where it is essential to the proper exercise of a jurisdiction already con- ferred by law.i § 393. The cases thus far considered in which the extraor- dinary aid of mandamus has been granted to compel muni- cipal corporations to levy a tax to meet their liabilities upon municipal aid securities, have been cases where the obligations of the corporation were not yet reduced to judgment. We pass, next, to the consideration of cases where relief is sought after judgment obtained against the municipality, and here we shall find the same principles applicable as before. Indeed, after the municipal securities have been reduced to judgment, the duty of levying a tax to provide means for payment of the jxidgment would seem to be still stronger than before. And the rule may be regarded as established by an overwhelming weight of authority, that mandamus is the appropriate remedy to compel municipal corporations to comply with their duty of levying and collecting taxes, in payment of judgments obtained upon bonds or other obligations of the municipality, issued by authority of law in aid of railway and other enter- prises of a like nature. ^ Indeed, the jurisdiction by man- ' Bath County v. Amy, 13 Wal. Aspinwall, 24 How. 376 ; Super- 344, 4 Chicago Legal News, 209. visors v. United States, 4 Wal. 435 ; ^ Commissioners of Knox Co. v. Von Hoffman v. City of Quincy, 4 278 MANDAMUS. [part damns in this class of cases may now be regarded as so firmly established, as to oust the jurisdiction of equity over the sub- ject matter. A bill in equity, therefore, will not lie to subject the taxable property of the municipality to the payment of judgments upon its bonds issued in aid of subscriptions to railways, and the judgment creditor will be left to pursue his remedy by mandamus. And this is true, even though he may have repeatedly invoked the extraordinary aid of a mandamus without avail, since the remedy at law is, in theory at least, adequate and perfect, although the execution of that remedy may have been unjustly delayed by the fraudulent conduct of the municipal authorities, aided by legislative enactments, in resisting the enforcement of the writs of mandamus. ^ Wal. 535 ; City of Galena v. Amy, 5 Wal. 705 ; Butz v. City of Muscatine, 8 Wal. 575 ; Mayor v. Lord, 9 "Wal. 409 ; Benbow v. Iowa City, 7 "Wal. 313 ; United States v. City of Sterl- ing, 3 Bissell, 408, 3 Cliicago Legal News, 187; United States v. Super- visors of Lee County, 2 Bissell, 77, 1 Cliicago Legal News, 121 ; United States V. Treasurer of Muscatine Co. 2 Abb.U. S. 53; S. C. suJ> mm. Lan- sing V. County Treasurer, 1 Dill. C. C. 522 ; "Welch i}. Ste. Genevieve, lb. 130. And see "Walkley v. City of Muscatine, 6 "Wal. 481. ' Rees V. City of Watertown, Su- preme Court of United States, 6 Chicago Legal News, 221. This was a bill in equity, originally brought in the United States circuit court for the eastern district of "Wisconsin, asking the aid of equity to subject the taxable property of the defend- ant to the payment of complainant's judgments upon railroad aid bonds issued by the defendant, and that the United States marshal might be empowered to seize and sell so much of the property as would satisfy the judgments. The bill disclosed that the complainant had obtained three different writs of mandamus against the municipal corporation, for the enforcement of his judgments, but tbat by resignations of the munici- pal officers, acts of legislature in aid of the defendants, and other de- vices, nothing was accomplished by the mandamus proceedings. Relief in equity was denied, on the ground that the remedy at law by man- damus, however inadequate in prac- tice, was perfect in theory, and should be pursued. Mr. Justice Hunt, delivering the opinion, says: * * " The appropriate remedy of the plaintiff was and is a writ of mandamus. (See Riggs v. Johnson County, 6 "Wall. 193.) This may be repeated as often as the occasion re- quires. It is a judicial writ, a part of the recognized course of legal proceedings. In the present case it has been thus far unavailing, and the prospect of its future success is, perhaps, not flattering. However this may be, we are aware of no au- thority in this court to appoint its own officer to execute the duty thus neglected by the city in a case like CHAP. V.J TO MTTSriCIPAL C0EP0EATI0N8. 279 § 394. The jurisdiction by mandamus iu this class of cases has been more frequently exercised in the federal than in the state tribunals. And while doubts have been expressed as to the power of the circiiit courts of the United States to issue the writ of mandamus to municipal officers, commanding them to levy a tax in payment of judgments recovered in those courts upon municipal obligations, the right is now clearly established, both upon principle and authority. ^ In such cases it is held that the fourteenth section of the judiciary act of the present. * * The writ of mandamus is, no doubt, the regular remedy in a case like the present, and ordinarily it is adequate and its results are satisfactory. The plain- tiff alleges, however, in the present case, that he has issued such a writ on three different occasions; tliat, by means of the aid afforded by the legislature and by the devices and contrivances set forth in the bill, the writs have been fruitless; that, in fact, they afford him no remedy. The remedy is in law and in theory adequate and perfect. The dififi- culty is in its execution only. The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct, and yet they are con- founded in the present proceeding. To illustrate: the writ of habere facias possessionem is the established remedy to obtain the fruits of a judgment for the plaintiff in eject- ment. It is a full, adequate, and complete remedy. Not many years since there existed in central New York combinations of settlers and tenants, disguised as Indians, and calling themselves such, who re- sisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a perfect remedy at law, but through fraud, violence, or crime, its execution was prevented. It will hardly be argued that this state of things gave authority to in- voke the extraordinary aid of a court of chancery. The enforcement of the legal remedies was temporarily suspended by means of illegal vio- lence, but the remedies remained as before. It was the case of a minia- ture revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is adequate and complete, and time and the law must perfect its execution. Enter- taining the opinion that the plain- tiff has been unreasonably obstruct- ed iu the pursuit of his legal reme- dies, we should be quite willing to give him the aid requested if the law permitted it. We can not, how- ever, find authority for so doing, and we acquiesce in the conclusion of the court below that the bill must be dismissed." ' Commissioners of Knox Co. v. Aspinwall, 34 How. 376; United States D. Treasurer of Muscatine Co. 2 Abb. U. S. 53 ; S. C. sui nom. Lan- sing V. County Treasurer,' 1 Dill. C. C. 523; Welch v. Ste. Genevieve, lb. 130. See Rusch «. Supervisors of Des Moines Co. 1 Woolworth, 313. 280 MANDAMUS. [PAET I. 1789, authorizing the courts of the [Jnited States to issue all writs which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles of the common law, confers sufficient authority upon the circuit courts to warrant their interference by mandamus. The juris- diction over the subject-matter itself being regarded as 'plain, and it being necessary to its effective exercise that the circuit courts should compel the corporate authorities to perform the ministerial duty of levying the tax, mandamus is regarded as the only writ within the constitutional powers of these courts adequate to the emergency. ^ ' Commissioners of Knox Co. . Super- visors of Des Moines Co. 1 Wool- worth, 313, and is completely over- thrown in Kees v. City of Water- town, Supreme Court of United States, 6 Chicago Legal News, 331. 282 MANDAMUS. [PAET I. their own judgments, i JSTor can the rights of the judgment creditor against the municipality be taken away or impaired by subsequent judicial decisions of the state courts, or by their construction of state statutes which impair the obligation of the contract. And the supreme court of the United States, if satisfied that the judgment creditor was entitled to the aid of a mandamus against the municipality, under the statutes of the state in force at the time of making the contract, will enforce the same remedy, notwithstanding subsequent deci- sions of the state courts giving a diiferent construction to their statutes. 2 And it is regarded as being as much within the power of the supreme court of the United States, under the twenty -fifth section of the judiciary act, to protect the contract rights of the judgment creditor against subsequent judicial decisions of the state, as it would be against subsequent legis- lation. ^ So the subsequent legislation of the state, after the rights of the judgment creditor have accrued, will not be allowed to deprive him of his right by mandamus to compel the levying of a tax by the municipality in payment of his judgment iipon its bonds. Thus, where at the time of issuing the bonds, the laws of the state authorize and require the muni- cipal corporation to collect suflScient taxes to meet its obliga- tions, but after contract rights have accrued and the relator has purchased the bonds, an act of legislature attempts to restrict the power of municipal taxation, so that the corporation will not be able to collect a sufficient amount to pay the judgments upon its bonds, such legislation will not be allowed to impair the right of the judgment creditor to relief by mandamus. The state having, in the first instance, authorized the munici- pal corporation to contract by issuing its bonds, and to exer- cise the power of local taxation to the extent necessary to meet such obligations, the power conferred becomes a trust, which can not be annulled by the donor, and neither the state nor the corporation can impair the obligation of the contract. Man- damus will therefore lie to compel the corporate authorities to ' Mayor v. Lord, 9 Wal. 409. 575. " Butz B. City of Muscatine, 8 Wal. » Id. CHAP. V-J TO MUNICIPAL COEPOEATIONS. 283 levy and collect the necessary tax in payment of the judgment, notwithstanding such subsequent legislation, i § 396. In applications for mandamus to compel municipal corporations to collect taxes in payment of judgments upon their aid securities, the courts will not permit the correctness of the judgment to be impeached. ^ Nor is it a valid objec- tion to granting the relief that the bonds of the municipality were never sanctioned by the requisite popular vote, the cor- poration being concluded upon all such questions by the judg- ment at law, and the courts will not go behind the judgment " Vou Hoffman v. City of Quincy, 4 Wal. 535. Swatnb, J., delivering the opinion of the court, says: " When the bonds in question were issued, tliere were laws in force which authorized and required the collection of taxes sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the act of the 14th of February, 1863, there would he no difficulty in enforcing them. The amount permitted to be col- lected by that act will be insuffi- cient ; and it is not certain that any- thing will be yielded applicable to that object. To the extent of the de- ficiency the obligation of the con- tract will be impaired, and if there be nothing applicable, it may be re- garded as annulled. A right with- out a remedy is as if it were not. For every beneficial purpose it may be said not to exist. It is well set- tled that a state may disable itself by contract from exercising its tax- ing power in particular cases. New Jersey v. Wilson, 7 Cranch, 166; Dodge V. Woolsey, 18 How. 331; Piqua Branch v. Knoop, 16 How. 369. It is equally clear that where a state has authorized a municipal corporation to contract and to exer- cise the power of local taxation to the extent necessary to meet its en- gagements, the power thus given can not be withdrawn until the con- tract is satisfied. The state and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor can not annul, and which the donee is bound to execute; and neither the state nor the corporation can any more impair the obligation of the contract in this way than in any other. Peoples. Bell, 10 Cal. 570; Dominick v. Sayre, 3 Sandf 555. The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the city to impose and collect the taxes in all respects as if that act had not been passed. A different result would leave noth- ing of the contract but an abstract right, of DO practical value, and ren- der the protection of the constitu- tion a shadow and a delusion." ^ Supervisors v. United States, 4 Wal. 435. 284 MANDAMUS. [PAET I. and, upon proceedings for mandamus, investigate the suffi- ciency of the original cause of action. * § 397. It is not essential to the exercise of the jurisdiction in this class of cases, that the duty of levying the tax should be peremptorily required by statute of the corporate authori- ties, but it is sufficient that their statutory authority be sim- ply permissive, provided rights have accrued requiring pro- tection by mandamus. Thus, where a board of county officers are empowered by statute to levy and collect a special tax, if deemed advisable by them, for the payment of county debts not otherwise provided for, the words of permission will be construed as peremptory and imposing an absolute duty upon the officers, whenever public interest or individual rights require such construction, and mandamus will go in such case to compel the county authorities to levy the tax in payment of judgments upon bonds of the county.^ And in all cases of this nature, it is not a sufficient return to the alternative writ to allege, in the words of the writ, that the tax has been levied, without disclosing the whole act constituting the levy, in order that the court may determine whether a sufficient levy has been made to satisfy the judgment. ^ § 398. "Where it is made by law the duty of a county board of supervisors to apportion the amount of indebtedness of the county to the state with the other taxes, and to levy the same as a portion of the county taxes for that year, and the amount of such indebtedness is properly certified to the board by the proper officer of the state, the legal duty of the board becomes fixed and peremptory, and mandamus will go to compel the making of the apportionment.* § 399. Where a naunicipal corporation is authorized to sub- scribe to the capital stock of a private incorporation, and the only means provided by law for the payment of its subscription is by issuing its bonds, it is held a sufficient return to a man- damus requiring payment of the subscription, that the cor- ' Mayor i>. Lord, 9 Wal. 409. of Muscatine, 6 Wal. 481. ' Supervisors v. United States, 4 ' Benbow «. Iowa City, 7 Wal. 313. Wal. 435; City of Galena v. Amy, 5 ' Peoples. Supervisors of Jackson Wal. 705. And see Walkley «. City Co. 34 Mich. 337. CHAP, v.] TO MFWICIPAL COEPOEATIOWS. 285 porate authorities have made diligent effort to effect a sale of the bonds, but without avail. In such a case, the subscription is held to have been made with reference to the restricted powers of the municipality, and the failure to make the pay- ment is regarded as having originated in a want of capacity known to both parties in the first instance, and subject to which the subscription was made.i § 400. Where a state treasurer has received, in his olficial capacity, certain mimicipal aid bonds, under a law which is afterwards declared unconstitutional, mandamus will lie in behalf of the municipality to compel the surrender of the bonds, when the treasurer has refused on proper demand to surrender them. The corporation in such case has the clear right to recall its illegal securities, and the duty of the treasurer to surrender them being plain and unmistakable, involving no exercise of official discretion, a proper case is afforded for relief by mandamus.^ IY-. Municipal Oefigebs and Elections. § 401. Mandamus granted to compel holding of municipal election. 403. Granted to compel admission to municipal office ; swearing in. 403. Writ refused where municipal oflBcers are iudges of their own election. 404. Not granted to control discretion ; lies to compel common council to consider nominations. 405. Effect of judgment of ouster upon mandamus to swear in claimant. 406. .Mandamus to affix corporate seal to certificate of election. 407. Mandamus lies to correct wrongful amotion from municipal office. 408. Amotion from common council ; doctrine of the kings bench. 409. Bestoration of clerk of county commissioners ; policemen. 410. Writ refused where officer is again liahle to immedig,te removel or suspension. 411. Want of notice of proceedings for amotion. 413. Return to writ; right of amotion; custom of removal; misde- • meanor. ' Neuse River Navigation Co. v. " People e. State Treasurer, 33 Commissioners of Newhern, 7 Jones, . Mich. 499; Same v. Same, 34 Mich. 375. 468. • 286 MANDAMUS. [PAET I. § 401. In conformity with the fundamental principle that mandamus lies to compel the performance of official duties, imperative in their nature and unaccompanied with any ele- ment of discretion, the courts will interfere by this extraor- dinary writ to compel the holding of a municipal election, where the duty is clearly obligatory and has been disregarded by the officers entrusted by law with its performance.! And where the president and board of trustees of an incorporated town have neglected within the time prescribed by law to give the requisite notice for the annual election of a new board of trustees, and afterwards refuse to call any meeting for such election, they may be set in motion by mandamus. ^ So the duty of the common council of a city to elect certain muni- cipal officers at a specified time may be enforced by man- damus.* So, too, where it is the duty of municipal authorities to supply vacancies in their number by election, the writ will go to require them to proceed to an election for this purpose.* And the writ will lie in such a case, notwithstanding the pen- dency of proceedings in quo warranto against one of such officers to try the title to his office.^ Nor- is it essential that a demand and refusal should be shown to warrant interference by mandamus, the delay in proceeding to the election being regarded as equivalent to a direct refusal on the part of the officers.^ It is to be observed, however, that the writ issues to compel the holding of a municipal election, only upon the supposition that there is an actual vacancy in the office, and if the office be already filled by an officer de facto, claiming under color of right, mandamus will not lie to compel a new election, but the party aggrieved will be left to his remedy by information in the nature of a quo warranto.'' And the grant- ' People V. Town of Pairbury, 51 ■■ King n. Mayor of Grampond, 6 111. 149 ; Lamb ». Lynd, 44 Pa. St. T. B. 301 ; State v. Common Council 336 ; State v. Common Council of of Rahway, 4 Vroom, 110. Eahway, 4 Vroom, 110; King v. ^ King «. Mayor of Grampond, yor of Grampond, 6 T. R. 301. supra. And see Rex «. Corporation of Wi- * State ». Common Council of gan, Burr. 783. Rahway, 4 Vroom, 110. '' People V. Town of Fairbury, 51 ' Queen v. Guardians of St. Mar- Ill. 149. tins, 17 Ad, & E. N. 8. 149 ; Frost -o. " Lamb «. Lynd, 44 Pa. St. 336. Mayor of Chester, 5 El. & Bl. 5R^ CHAP, v.] TO MUNICIPAL CORPOEATIOWS. 287 ing of two concurrent writs to compel the holding of a muni- cipal election is not a matter of course, and will not be allowed without special cause shown. ^ § 402. The propriety of the writ of mandamus to compel admission to municipal offices, though not very firmly estab- lished, either upon principle or authority, has yet been recog- nized, and the court of kings bench has granted the writ to compel the admission of a town clerk to his ofiice,^ and to compel the mayor of an incorporated town to swear in the town clerk. 3 Indeed, as regards the administering of the oath of office to such municipal officers as appear to be elected, there would seem to be no impropriety in granting the writ, even though it be conceded that the court has no jurisdiction to judge of the election itself, since, the administering of the oath is considered only as incidental to the question of election.-* And in England, the writ has been granted to compel^the com- mon council of a municipal corporation to receive and count the vote of a member of the council duly elected and qualified, and to permit him to exercise the duties of his office. ^ § 403. Where municipal boards are by law made the judges of the elections, qualifications and returns of their own officers or members, the powers thus vested in them are held to be so far discretionary as to be beyond control by mandamus. And while it is competent for the courts, in such cases, to set the municipal authorities in motion, and to require them to hear and determine the question of the election of a claimant, they will go no further, and will not direct what particular judg- ment shall be given.* Where, therefore, a board of municipal ' Rex «. Corporation of Wigan, the same nature had been made and Burr. 782. refused with respect to a former ' King «. Slatford, 5 Mod. Rep. election. King «. Mayor of Lon- 316. don, 1 Nev. & Man. 385. 3 Queen v. Mayor of Hereford, 6 " Ex parte Heath, 3 Hill, 43. Mod. Rep. 309 ; King v. Knapton, 3 ^ Queen », Mayor of Leeds, 11 Ad. Keb. 445. And it is held in Bng- & B. 512. land to be no suflBcient objection to ^ State e. Common Council of the granting of an alternative man- Rah way, 4 Vroom, 110 ; Supervisors damus to admit one to a municipal of Mason Co. v. Minturn, 4 W. Va. office, that a previous application of 300. See also Mayor of Vioksburg 288 MANDAMUS. [PART I. officers, vested with sueli discretionary powers, have refused to admit an applicant, mandamus will not lie to review their pro- ceedings.'- So where the aldermen of a city are by law made the JTidges of the election and qualifications of their own mem- bers, with power to order elections, they are regarded as being vested with discretionary powers in determining who is. duly elected, partaking in some degree of a judicial nature. Where, therefore, they have passed iipon the application of one claim- ing to be duly elected to the common council, and have decided adversely to his application, mandamus will not go to compel them to issue a certificate of election to the applicant. ^ § 404. In conformity with the fundamental doctrine deny- ing the aid ot mandamus to control the exercise of official judgment or discretion, the writ will not go to control the action of a board of municipal officers, such as a town council, sitting as a board of canvassers of elections, and authorized by law to strike from the voting list the name of any voter, upon satisfactory proof that he is not qualified to vote. The action of such officers partakes of a judicial nature, and where they have passed upon the question and have stricken a name from the voting list after a hearing, they can not be required by mandamus to restore the name, since the courts will not, by this process, review the errors of inferior tribunals of a judi- cial or quasi -judicial character. ^ Where, however, an act of legislature provides for the nomination by the mayor of a city of a board of public works for the city, and it is also made the duty of the common council to consider and act upon the nominations thus made, but they refuse to perform this duty, on the ground of the alleged unconstitutionality of the law requiring it, mandamus will go to compel them to consider the nominations, where the court is satisfied that the main purpose of the act is within the legitimate province of legisla- tive action, and not in conflict with the constitution.* V. Rainwater, 47 Miss. 547. But see, water, 47 Miss. 547. contra, State v. Wilmington City ^ Weeden ». Town Council of Council, 3 Barring. 294. Richmond, 9 R. 1. 128. ' Supervisors of Mason Co. -o. ■" People v. Common Council of Minturu, sitpra. Detroit, 6 Chicago Legal News, 176, " Mayor of Vicksburg ■». Rain- Supreme Court of Michigan. CHAP. V.J TO MUNICIPAL COEPOEATIONS. 289 § 405. Where the writ is sought to compel the swearing in of a person claiming the right to hold a municipal office, as that of mayor of a city, it is a sufficient objection to the inter- ference that judgment of ouster has been rendered against the relator, upon an information in the nature of a quo warranto to test his title to the office, the effect of such a judgment, whether proper or improper in itself, being to work a com- plete amotion from the office, entirely excluding the person removed so long as it remains in force, i § 406. In England, the alternative writ issues as of course to compel a municipal corporation to affix its corporate seal to the certificate of election of a municipal officer, the case being regarded as akin to that of administering the official oath to an applicant.^ And in such ease the mandamus is not con- clusive upon the right of the actual incumbent of the office, who may contest the right upon return to the writ.^ § 407. We have already seen, in considering the law ot mandamus as applicable to private corporations, that the writ is freely granted in cases of wrongful amotion from a cor- porate office, for the purpose of restoring the party aggrieved to the enjoyment of his franchise.* Upon principles analo- gous to those governing the jurisdiction in cases of private corporations, the courts will interpose their aid by mandamus to restore a municipal officer, who has been removed from his position without sufficient cause, and the jurisdiction may be traced to a very early date in the kings bench. ^ § 408. The wrongful amotion of a member of the common council of a city, affords good cause for relief by mandamus. * And the rule was laid down at an early day by the kings bench, that a member of a municipal corporation could only be dis- franchised for some act tending to the destruction of the body corporate, or of its liberties and privileges, and that a mere ' King «. Serle, 8 Mod. Rep. 333. Burr. 723 ; Sir Thomas Earle's case, ^ King V. Mayor of York, 4 T. R. Carth. 173; King v. City of Canter- 699. bury, 1 Lev. part I, 119; Rex ». 8 Id. Mayor of Oxford, 3 Balk. 438. * See ante, § 391 et seq. « Rex v. Town of Liverpool, Burr. ' See Rex «. Town of Liverpool, 723. 19 . 290 MANDAMTJS. [PAET I. personal offense from one member of the corporation toward another did not constitute sufficient cause for amotion, and the removal of a corporator for such offense would be redressed by mandamus. 1 And the writ has been granted to restore an alderman of a city who had been expelled from his priority and precedence of place as alderman. ^ § 409. The peremptory writ will go to a board of county- commissioners to restore their clerk to his office, from which he has been removed, where there appears on the record, which is taken as the return, no cause of removal, the statutes of the state requiring the cause of removal to be stated upon the record.^ And the writ will lie to the mnnicipal anthoritiea of a city to compel the restoration of policemen who have been improperly excluded from their office, and to permit them to exercise their functions and to draw their salaries.* § 410. While the propriety of the writ as a remedy for the wrongful amotion of a municipal officer is thus clearly estab- lished, the relief will be withheld where it is either admitted by the party, or is apparent from the return that if restored to his franchise he is liable to be again immediately removed for the same cause. ^ So if the officer, instead of being removed, has only been suspended, even though the proceed- ings for his suspension were irregular, if it appears by his own showing that his conduct has been such as to constitute reasonable and sufficient groimd for the suspension, mandamus will not lie to restore him to his office.* § 411. While want of notice to the person removed of the proceedings for his removal is ordinarily deemed a sufficient objection to the validity of the proceedings, yet, where the officer has actually been heard in his own behalf upon charges of misbehavior, which are fully proven, and he is removed ■ Sir Thomas Earle's case, Carth. Same v. Same, lb. 544 ; Same v. 173. Same, lb. 644 ; Same u. Same, lb. 651. 'King V. City of Canterbury, 1 ' Rex «. Mayor of Axbridge.Cowp. Lev. part 1, 119. 533 ; King ■». Mayor of Bristol, 1 ' Street ii. County Commissioners, Dow. & Ey. 889. Breese, Beecher's edition, 50. ' King v. Mayor of London, 3 T. ' People «. Board of Police, 35 R. 178. Barb. 537 ; Same v. Same, lb. 536 ; CHAP. V.J TO MtrWICIPAL COEPOKATIOlirS. 291 from his office, he can not rely upon the fact that he was not summoned to answer the charges. ^ And it is a sufficient return to the alternative writ to restore one to his corporate office, that he was heard in his own defense, without alleging that he was summoned to answer the charges. ^ § 412. "Where the writ is invoked for the purpose of com- pelling the authorities of a city to recognize and restore an officer whom they have deposed from his position, it is suffi- cient to return that the officer was removable at the pleasure of the municipal authorities, and that they had legally and rightfully discharged him, and such return is not demurrable. ^ But where the corporation relies, in justiiication of its con- duct, upon a custom of removal at pleasure, the return to the alternative writ directing the restoration of a municipal officer should allege such custom positively, and it is insufficient to show the custom merely by way of recital.* And where a municipal officer, holding his office at the will of the corporate authorities, is disfranchised, and upon mandamus to restore him the corporation does not rely upon its power of removal, but returns a misdemeanor as the cause of amotion, which is held an insufficient cause, the peremptory writ will go to restore the officer. ^ V. MUNICIFAL iMPEOVEMKNte, StEEETS AND HIGHWAYS. § 413. The general rule stated and applications thereof. 414. Obstruction of streets ; power construed as duty. 415. Liability of officer to penalty no bar to mandamus. 416. Degree of interest required of relator. 417. Duty must be an actual present duty; discretion of officers; sanc- tion of other officers. 418. Discretion of municipal authorities not interfered with. 419. Action of municipal authorities not reviewed by mandamus. • Rex V. Mayor of Wilton, 2 Salk. Ind. 74. 428. ■* Rex n. Mayor of Coventry, 2 « King V. Mayor of Wilton, 5 Mod. Salk. 430. Rep. 257. ' Rex ©. Mayor of Oxford, 2 Salk. » City of Madison v. Korbly, 32 428. 292 MANDAMUS. [PAKT I. 430. Awarding contract for paving street. 421. Mandamus for payment of damages in opening street. 422. Damages should be assessed or paid before mandamus granted to open road ; effect of discontinuing road. 423. Duty must be plain and unmistakable. 424. Municipal proceedings presumed regular; writ refused where it would render officers liable in trespass. 425. Signing municipal bonds ; payment of money for public improve- ment. 426. Effect of subsequent discontinuance of proposed improTement. 427. Erection of wharf heads. 428. Discretion in apportionment of expense incurred. 429. Statutory remedy a bar to the writ. § 413. The duties of municipal corporations in maintaining and keeping in repair improvements of a public nature, such as highways, streets and bridges, ajSbrd frequent occasion for invoking the extraordinary remedies of the courts, and the jurisdiction by m.andamus over this class of cases is well established. The existence of an obligation on the pa,rt of the authorities of a municipal corporation in regard to such improvements, lays the foundation for relief by mandamus, in the absence of other adequate and specific remedy, and, in as far as the obligation is in the nature of a ministerial duty, unaccompanied by any discretionary powers, it is peculiarly within the control of the writ of mandamus. And it is a general rule applicable to all municipal corporations, that wherever the duty is plainly incumbent upon such bodies of making local improvements, such as streets, highways or bridges, or of keeping in repair improvements already con- structed, and the obligation is so plain and imperative as to leave no room for the exercise of any discretion upon the part of the municipal authorities, mandamus will lie to enforce the obligation.! por example, where a board of county super- ' Borough of Uniontown v. The Legal News, 136, Supreme Court of Commonwealth, 34 Pa. St. 293 ; City Illinois, decided June 24, 1872 ; of Ottawa «. The People, 48 111. 383 ; People v. Common Council of People ». Supervisors of San Fran- Brooklyn, 22 Barb. 404 ; People ii. Cisco, 36 Cal. 595 ; Hammar v. City Collins, 19 Wend. 56. But see, con- of Covington, 3 Met. Ky. 494 ; People tra, Reading «. The Commonwealth, v. Mayor of Bloomington, 5 Chicago 11 Pa. St. 196, where it is held that CHAP. V.J TO MUNICIPAL COEPOEATIOlSrS. 293 visors is required by statute to make certain local improve- ments, such as the grading of streets, the duty being absolute and unqualified, and of a ministerial nature, the board may be compelled to act by mandamus. ' And where, by act of legis- lature, the duty is plainly and imperatively incumbent upon the common council of a city to make certain street improve- ments, the writ will issue for the enforcement of the obliga- tion. ^ J!^or does the fact that certain incidents and details of the work are left discretionary with the authorities, as regards the manner of their execution, render the duty less mandatory, or constitute a bar to relief by mandamus.^ So, where a municipal corporation is required by law to maintain and keep in repair certain bridges, or to keep them open for the passage of boats, mandamus is the appropriate remedy to compel the performance of such duty, there being no discretion left to the corporate authorities, and no other legal and specific remedy.* And where the imperative duty is imposed iipon a board of municipal officers of opening a highway, upon a route indicated by a special commission or board of ofiicers appointed for that purpose by the legislature, mandamus will lie to compel the performance of the duty, and in such case the inferior board can not, by its return to the alternative writ, question the decision of the commission locating the route. ^ § 414. Where the common council of a city is empowered by its charter to keep in repair the streets of the city, and to remove all obstructions therefrom, the grant of power will be construed for the public benefit, and its execution may be insisted upon as a public duty. And in such case the writ mandamus, being grantable only ia Franeiseo, 36 Cal. 595. cases of last necessity, and where no " People «. Common Council of other adequate and specific remedy Brooklyn, 23 Barb. 404. exists, it will not lie to compel the ' People v. Supervisors of San officers of a town or city to keep Francisco, 36 Cal. 595. open a street and sidewalk, the ' City of Ottawa «. The People, 48 proper remedy for the obstruction 111. 233 ; Howe v. Commissioners being by indictment. of Crawford Co. 47 Pa. St. 361. ' People ». Supervisors of San ' People ». Collins, 19 Wend. 56. 294 MAWDAMFS. [PABT I. will be granted to require tte municipal authorities to remove houses, fences, and other obstructions from the streets. * § 415. The fact that the officer on whom the duty of opening a road is incumbent, is liable to a penalty for non- fulfillment of his duty, will not prevent the courts from extending relief by mandamus, since the penalty is not a specific remedy and may be paid or satisfied in full, and yet the road not be opened. An overseer of highways may, there- fore, be required by mandamus to open a road in accordance with the plain and positive requirements of the law, notwith- standing the penalty for failure to perform this duty.^ § 416. As regards the degree of interest in the improve- ment in question which the relator must show to entitle himself to relief, it would seem, where the writ is sought to compel city authorities to keep the streets in repair, that property owners fronting on the streets to be affected are com- petent relators, and have a sufficient interest in the subject matter to entitle them to relief.^ And where the remedy is resorted to for the enforcement of a strictly public right, such as maintaining bridges over a navigable river and keeping them open for the passage of boats, the people are regarded as the real party seeking relief, and the relator need not show any legal interest in the result. It is enough, in such case, that he is interested as a citizen in the execution of the laws and the enforcement of the particular duty in question.* § 417. To warrant the exercise of the jurisdiction by man- damus in the class of cases under consideration, it must clearly ' People 1). Mayor of Bloomington, ties to lay out a public road, at the 5 Chicago Legal News, 136, Supreme relation of a citizen who shows no Court of Illinois, decided June 24, especial interest of his own to be 1873. promoted by the road, and who fails ' State V. Holliday, 3 Halst. 305. to show that his rights are more ^ Hammar «. City of Covington, 3 impaired than those of other citi- Met. Ky. 494. zens by the omission of duty com- ■■ City of Ottawa v. The People, 48 plained of. For a ihore extended 111. 333. But see State v. Inhabitants discussion of the degree of interest of Strong, 35 Me. 397, where it is necessary to make one a proper held that the writ will not be relator in such cases, see Chapter granted requiring county authori- VI, post, § 431, et seq. CHAP, v.] TO MTJWICIPAL CORPORATIONS. 295 appear that there is an actual, present duty on the part of the municipal authorities, and that this duty has not been per- formed. And where a general duty is imposed by statute upon a board of municipal or local officers, as the duty of draining a parish, involving all parts of the parisbf equally, there must of necessity be some degree of discretion on the part of the officers in determining upon the extent and order of their ■works, with reference to the necessities of different localities in the parish. The writ, therefore, will not go to command such officers to make a sewer for the use of a particular locality, where it is shown by their return that other parts of the par- ish are being drained which are of more importance to the pub- lic, and that the particular work sought by the mandamus is unnecessary, and that they are unable to do all the work required at ouce.^ And to authorize the writ in this class of ' Begina v. Vestry of St. Lukes, 5 L. T. R. N. S. 744. " I am of opin- ion," says CooKBUKN, 0. J., "that this writ of mandamus calling upon the vestry of St. Luke's, Chelsea, to drain a certain street called Limer- ston street, is defective. In order to constitute a writ which will be sufficient, there ought to appear on the face of it a present duty on the part of the defendants to do the work in question, and that this duty has not been performed. Now, the only duty shown is a general duty to drain, etc. the whole of the par- ish, and it does not appear that in this particular instance there is any present duty to do the particular work. By the Metropolitan Local Management Act I agree that there is imposed on the vestiy a general duty to drain the parish, and this involves all the parts of the parish ; but I think also, that in the dis- charge of that duty a reasonable time for its discharge is necessarily implied; and I think, when we con- sider the magnitude and extent of the works thereby imposed, and the nature of the funds which are to de- fray the expense, there must be vested in the body on which that duty is oast some discretion to select the extent and order of their opera- tions, in reference to the means at their disposal, and with reference to the greater or less degree of neces- sity for selecting one district in preference to another. It can not be expected that the vestry are to levy the whole sum necessary to com- plete the works at once. The work must be done with reference to what is reasonable and proper under the circumstances. Therefore some dis- cretion must be vested in the vestry or local board to select one part of the works, to begin with, in prefer- ence to another. It may well be that in reference to this locality the vestry may have thought the works in other parts of the parish were of more pressing necessity, and that this locality might wait for a time. Tak. 296 MAWDAMTJS. [PAKT I. cases, it should clearly appear that the duty which it is sought to coerce is absolute and unconditional, and it is a fatal objec- tion to granting the relief that the respondents are not author- ized to perform the act sought, until they have first obtained the sanction and approval of another board of officers. ^ § 418. It is thus apparent that the true test to be applied, in determining whether relief by mandamus shall be adminis- tered for the enforcement of that class of municipal duties under consideration, is, whether the obligation which it is sought to enforce is of a positive and mandatory character, or whether it is accompanied with or implies the exercise of offi- cial judgment and discretion on the part of the municipal authorities, and if the obligation be of the former class the courts do not hesitate to interfere. And this brings us to the consideration of another principle, equally important in deter- mining whether an appropriate case is presented for the extra- ordinary aid of a mandamus. That principle is, that as to all questions connected with local and public improvements, such as maintaining and keeping in repair roads, streets, or bridges, concerning which the municipal authorities are vested with discretionary powers, and are required^ to exercise their own judgment in determining upon the necessity of the work or the manner of its execution, mandamus will not lie, since the law will not command the performance of an act, concerning the expediency or propriety of which the corporate authorities are themselves the judges. ^ Thus, where municipal authori- ties are authorized by act of legislature, without being peremp- torily required, to construct a public road, it being left to their discretion to determine whether the work is desirable or nec- ing all those circmnstancea into con- ' Regina «. Vestry of St. Lukes, sideratiou, I do not think it is supra. enough to say that there is a large ' State v. Police Jury of Jeiferson, part of the parish undrained; it 2SLa. An. 611; State d. Freeholders must he shown that there was a of Essex, 3 Zab. 314 ; Mayor v. Rob- present duty on the vestry to do this erts, 34 Ind. 471 ; Hill «. County work, and that a reasonable time for Commissioners of Worcester, 4 Gray, its discharge had elapsed. Now, 414. See also, upon the same sub the present duty is not at all shown ject, Diokerson ii. Peters, 71 Pa. St in this mandamus." 53. CHAP, v.] TO MUN-ICIPAIi OOEPOEATIOKS. 297 essary, they will not be required by mandamiiB to construct the road.i And where county commissioners are entrusted by law with the power of locating roads and highways, the question of what the public convenience requires in such loca- tion is regarded as peculiarly within the province of the com- missioners, and their decision upon this point will not be revised by the courts, nor will mandamus lie to compel them to locate a road where they have already decided that the pub- lic convenience does not require its location. ^ § 419. It is further held, in conformity with the general doctrine laid down in the preceding section, that where a board of town officers are vested by law with full power to determine upon the utility and necessity of erecting or rebuild- ing bridges within the town, the refusal of such board to rebuild a bridge as desired by certain citizens of the town, affords no ground for the interposition of the extraordinary aid of a mandamus, no abuse of the discretionary powers vested in the board being shown. ^ In such a case, where it is mani- fest that the granting of the writ would be attended with great expense and hardship, and that the end sought is to promote private rather than public interests, the case is regarded as appealing to the discretionary powers of the court, and the writ will be refused, unless the powers of the board are being abused.* And the question of whether an impro\'ement in the streets of a city shall be made and paid for out of the general fund in the city treasury, is a question with reference to which the judgment of the common council will not be reviewed or set aside by mandamus, and if granted in such a case the writ may be quashed on motion.^ § 420. Again, it is held where certain municipal officers, ■ such as a department of highways of a city, are authorized by a resolution of the common council of the city to enter into a contract with a competent person who may be selected by a ' State V. Police Jury of Jefferson, Zab. 214. 22 La. An. 611. * State v. Freeholders of Essex, ' Hill 11. County Commissioners of supra. •Worcester, 4 Gray, 414. ' Mayor v. Roberts, 34 Ind. 471. ' State «. Freeholders of Essex, 3 298 MANDAMUS. [PAET 1. majority of the owners of property fronting on a certain street, for the paving of the street, a certain degree of discretion is vested in the department as to the competency of the person selected. A conrt will not, therefore, require them by man- damns to award the contract to any particular person, even though he may have been selected by a majority of the prop- erty owners, they having afterwards selected another person before the contract was awarded. ^ § 421. Mandamus is the proper remedy to compel a city to take the necessary steps to provide for the payment of dam- ages, awarded to property owners by the opening of a Btreet through their property, there being no other process to com- pel the city to proceed, since an action of trespass, if brought, would necessarily assume the proceedings to be void.^ And where a city street has been ordered to be opened or extended, commissioners for the assessment of damages having been duly appointed and having reported an assessment which has been confirmed, and the warrant having issued to collect tho amounts assessed for payment of the damages, a peremptory mandamus will go to compel the city to collect and pay ovei the damages.^ So where it is made the duty of a board of town officers to draw their warrant upon the treasurer, for the payment of damages awarded the relator for laying out a highway over his lands, the duty may be enforced by man- damus.* But where a board of county commissioners have, in accordance with the laws of the state, appointed a committee to determine the amount of damages caused by laying out a highway, the acceptance or rejection of the report of such com- mittee is held to be a judicial and not a ministerial act, and the commissioners will not be required by mandamus to accept the report.^ § 422. An important condition to be observed where man- damus is sought to compel mimicipal authorities to open ■ Dickerson v. Peters, 71 Pa. St. 53. * People v. Townstnip Board, 3 " State V. City of Keokuk, 9 Iowa, Mich. 187. 438. ' In re Proprietors Kennebunk ' Higgins V. City of Chicago, 18 Toll Bridge, 11 Me. 263. 111. 276. CHAP, v.] TO MFNIOIPAL C0EP0EATI0K8. 299 streets and highways, is, that the claims of property holders for damages to their property caused by the opening of the road should be first adjusted or paid, before the courts will lend their interference. ^ And, in an application for mandamus against commissioners of highways, requiring them to open a road, the relators should aver in their petition and prove that the damages assessed as compensation to the land owners have been paid or released, or that the necessary funds are at the disposal of the commissioners for this purpose, and where this does not appear it is error for the court to award a peremptory mandamus. 2 So the fact that the damages to property owners through whose land the highway is to pass have not been assessed or paid, is a complete return to an alternative man- damus directing the commissioners to open the road.^ It is also a good return to the writ, that after service thereof and before return, the highway has been discontinued by regular legal proceedings for that purpose.* § 423. While, as we have thus seen, mandamus is frequently allowed to enforce the performance of duties connected with public improvements at the hands of mimicipal authorities, the duties sought to be coerced must be of so plain and unmistakable a nature as to leave no room for doubt. And where a statute requires the supervisors of a county to contract for the erec- tion of public buildings for the use of the county, but doubt exists, under the statute, as to the mode in which the duty shall be performed, so that different members of the board might have different opinions as to the manner in which they should act, the writ will not be granted. ° § 424. Where the writ is sought to compel the common council of a citj'^ to open a street within the corporate limits, the proceedings of the council and of their agent in the matter will be presumed to be regular, and will not be called in ques- • People V. Curyea, 16 111. 547; ways, 1 N. Y. Sup. Ct. Rep. 193. See Hall V. The People, 57 111. 307 ; Peo- also People «. Curyea, 16 111. 547. pie v. Commissioner of Highways, 1 * People «. Commissioner of High- N. Y. Sup. Ct. Rep. 193. ways, supra. ^ Hall V. Tlie People, supra. ' State v. Supervisors of Washing- ' People D. Commissioner of High- ton Co. 3 Chand. 247. 300 MANDAMirs, [part I. tion. And tte court, in such case, will only determine as to the right of the applicants to have the street opened, and the duty of the city authorities to open it. i But the writ will not go to municipal officers requiring them to open a road, where it is manifest that by obeying the mandate of the writ the oflScers would render themselves liable to an action of trespass.* § 425. The writ will lie to compel the president of a muni- cipal corporation to sign its bonds, which have been issued by authority of the legislature for carrying out a work of munici- pal improvement. 3 And where specific funds have been donated by a state to a county, to be held by the county in trust for the completion of certain public improvements, which funds have been mingled with the other moneys of the county, it is proper to allow a peremptory mandamus, requiring the payment of the money to the person entrusted with expending it for carrying out the work.* § 426. Mandamus will not go to a municipal corporation requiring it to proceed with the condemnation of property for purposes of street extension, where the extension has been abandoned and the ordinance repealed by the common council on grounds of public policy, and because the expense necessary in the prosecution of the work would be greater than the ben- efits to be derived from it. The granting of the writ in such a case would be to set aside and annul the deliberate action of the corporation, and to require private property to be devoted to public uses, and highways to be opened, contrary to the expressed will of the public.^ Where, however, damages for the opening of a road over relator's premises have actually been awarded, the subsequent discontinuance of the road is no bar to relief by mandamus to compel the county authorities to pay the amount allowed, the right to damages in such case being regarded as vesting as soon as the verdict is returned ' State V. Common Council of ' People v. White, 54 Barb, 633, Orange, 2 Vroom, 131. * County of Pike «. The State, 11 « Ex pa/rte Clapper, 3 Hill, 458. Ill, 203. And see People d. Commissioners of ' State ». Graves, 19 Md. 351, Highways, 27 Barb. 94. OHAP. v.] TO MtTKICIPAL COEPOEATIOlirS. 301 and accepted, and the right is not, therefore, affected by the subsequent discontinuance of the road.i § 427. Where, by an act of legislature, the duty is devolved upon the mayor and common council of a city, together with other persons specified, of appointing commissioners to deter- mine the proper water line for the erection of wharf-heads, the statute being mandatory and not merely directory in its pro- visions, the enforcement of the duty is a proper subject for the exercise of the jurisdiction by mandamus, since a positive, statutory right is created, and the party aggrieved has no other redress, either legal or equitable.^ § 428. County commissioners, who are vested by law with the power of directing that a portion of the expense incurred by the town in making a highway shall be paid out of the county treasury, and who have refused the exercise of this power in a given case, can not be compelled to exercise it by mandamus, it being of a judicial nature, and therefore not sub- ject to control.* And this is so, regardless of whether the commissioners have decided properly or improperly upon 'the application.* § 429. Notwithstanding the jurisdiction by mandamus over municipal officers entrusted with the location of streets and other kindred improvements, is, as we have seen in the preced- ing sections, well established and clearly defined, it will not be exercised to the exclusion of special remedies provided by law. Mandamus will not, therefore, lie to a board of county com- missioners, commanding them to locate a particular highway and to make an order for the payment of damages to be thereby sustained, where a statute has provided ample remedy by appeal from the decision of the commissioners.'' ' Harrington v. County Commis- tioners, 24 Pick. 343. sioners, 23 Pick. 363. * Id. ^ Mayor ». State of Georgia, 4 ' Commissioners of Boone v. The Geo. 36. State, 88 Ind. 193. » Inhabitants of Ipswich, Peti- CHAPTEE VI. OF THE PARTIES TO THE WRIT. I. Parties for whom the Writ is Graiitbd, ; § 430 II. Parties against whom the Writ is Granted, 440 I. Paeties fok whom the Wkit is Geauted. § 430. Proceedings instituted in name of state or sovereign. 431. Degree of interest, necessary on part of relator; distinction between cases of public and private right. 433. The distinction denied in some of the states. 433. The distinction further illustrated. 434. Real party in interest should be relator; payment of order on city treasurer; joinder of different claimants. 435. County commissioners not proper relators for mandamus to keep turnpike in repair. 436. Degree of interest fixed by statute ; voters for location of county seat. 437. Survivorship of action. 438. Mandamus to admit child to public schools; the father a proper relator. 439. Distinct interests can not be joined; restoration of members of common council ; damages for laying out road. § 430. The remedy by mandamus, as discussed and illus- trated in the preceding chapters, has been shown to be sub- stantially a civil remedy in its nature, and one which is applied for the protection of purely civil rights. The proceedings, however, are usually instituted in the name of the state or sovereign, upoi^ the relation or information of the party aggrieved. It is difficult to perceive any satisfactory reason why the proceedings should not be conducted as in ordinary (302) CHAP. VI.J OF THE PARTIES. 303 civil actions for the protection of private rights, merely in the name of the actual parties in interest as plaintiff and defend- ant, as is done in some of the states, without introducing the state or sovereign power as the prosecutor. This method, however, of instituting the proceedings is of very ancient origin, and seems to have had its foundation in the theory which formerly prevailed, regarding the writ of mandamus as purely a prerogative writ, issuable not of right, but only at the pleasure of the sovereign, and hence issued only in his own name and as an attribute of his sovereignty. And while the tendency of the courts in modern times is to disregard the prerogative theory of the writ, and to treat it as an ordinary writ of right, issuable as of course upon proper cause shown, many of the courts still adhere to the former theory, so far, at least, as to consider the proceedings properly instituted only in the name of the state. Thus, in Ohio, it is held that from the nature of the writ as a command issiiing from the sov- ereign power, it is properly prosecuted in the name of the state as the sovereign, upon the information of the actual party in interest, and that the adoption of the code of pro- cedure has not made any essential change in the writ or proceedings thereunder in this respect. ^ And in Iowa, pro- ' State «. Commissioners of Perry, a duty imposed on them by law, and 5 Ohio St. 497. The court, Scott, in a case like the present it must be J., say: "A question has been made difficult to point out any mode of in this case, whether the proper obtaining adequate redress, if the parties are before the court. The performance of that duty can not respondents claim that the state of be enforced by mandamus. The Ohio is not a. proper party, and that question as to the prosecution of the relators have not such an inter- the writ in the name of the state is est in the subject matter as will en- purely technical, and if this mode titl^them to the remedy which they of prosecution be informal under aee^ The STOth section of the code the code, leave would of course be provides that the writ ' may issue on given to amend. But we incline to the information of the party benefi- think this mode of proceeding in cially interested,' and we think the mandamus proper. The writ is from facts stated in the information show its very nature and definition, ' a such a beneficial interest in the re- command issuing in the name of lators as entitles them to relief. The the sovereign aiJbority.' Bouvier's subject matter of complaint is the Diet. Blackstone says: 'It is a refusal by public officers to perform command issuing in the king's 304 MANDAMUS. [part I. ceedings in mandamus are regarded as a prosecution, within the meaning of the constitution of the state which requires all prosecutions to be conducted in the name and by the authority of the state. It is, therefore, considered erroneous in that state that the proceedings should be conducted in the name of an individual citizen, and where the object sought is to enforce a duty for merely private ends, the action should be conducted in the name of the state, upon the relation of the informant.^ The tendency of the courts, however, is to regard the use of the name of the sovereign power as prosecutor to be merely nominal, the remedy being regarded as essentially a civil remedy. 2 § 431. As regards the degree of interest on the part of the relator, requisite to make him a proper party on whose informa- tion the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a, mandamus is invoked, merely for the purpose of enforcing or protecting a , private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest. And while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, where the relief is sought merely for the pro- tection of private rights, the relator must show some personal or special interest in the subject matter, since he is regarded as the real party in interest and his rights must clearly appear. On the other hand, where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special m%v- name.' In the United States it has writ or the proceedings under it always been issued in the name of Prom the nature of the remedy this the sovereignty by which it has suit then is properly prosecuted in been authorized. We apprehend the the name of the state." code does not contemplate an essen- ' Chance v. Temple, 1 Iowa, 179. tial change in the character of the ' Brower v. O'Brien, 3 Ind. 423. CHAP. VI.] OF THE PARTIES. 305 est in tlie result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws. ^ § 432. Notwithstanding the strong array of authority in support of the doctrine as laid down in the preceding sec- ' County of Pike v. The State, 11 U\. 202; City of Ottawa v. The Peo- ple, 48 111. 233; Hamilton v. The State, 3 Ind. 453 ; People ». Collins, 19 Wend. 56 ; Hall v. The People, 57 111. 307; People ■». Halsey, 37 N. Y. 344; State v. County Judge of Mar- shall, 7 Iowa, 186. See, contra, State ». Inhabitants of Strong, 25 Me. 297 ; People V. Regents of University, 4 Mich. 98; People v. Inspectors of State Prison, lb. 187 ; Heffner v. The Commonwealth, 28 Pa. St. 108 ; San- ger «. County Commissioners of Kennebec, 25 Me. 291. County of Pike ®. The State, 11 111. 203, was an action brought upon the relation of one Metz, a commissioner ap- pointed by act of legislature to superintend certain internal im- provements for which an appro- priation had been made, for a per- emptory mandamus to compel the county commissioners to pay over the money to Metz. The court. Treat, C. J., say: "It is contended that the relator has not such an in- terest in the fund sought to be recovered as will authorize him to prosecute this peculiar remedy. The question, who shall be the relator, in an application for a mandamus, depends upon the object to be at- tained by the writ. Where the rem- edy is resorted to for the purpose of enforcing a private right, the per- son interested in having the right enforced must become the relator. He is considered as the real party, and his right to the relief demanded must clearly appear. A stranger is 20 not permitted ofBciousIy to inter- fere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced. See the case of The People v. Col- lins, 19 Wendell, 56, where this question is much discussed, and the foregoing conclusions are clearly stated. No doubt is entertained of the right of Metz to become the relator and pursue this remedy. The object of the suit is not a mat- ter of individual interest, but of public concern. Any citizen of the county, especially of the locality in- terested in having the improve- ments prosecuted, could become the relator, and obtain the mandamus. There is a manifest propriety in permitting Metz to give the in- formation and conduct the proceed- ing. He has the direction of the improvement, and the money, when received, is to pass into his hands and be disbursed by him." The same principle is very clearly stated in Hamilton v. The State, 3 Ind. 452. This was an application by one Bates for a mandamus directing the county auditor to issue a duplicate for the collection of taxes as re- quired by law. Upon the question of the right of a private citizen to institute the proceedings, the court, 306 MANDAMTJS. [PAET tion, and in the opinions of the courts cited in its support, the contrary doctrine has been earnestly contended for and has the support of some most respectable authorities. Thus, it is held in Maine, that a private citizen is entitled to a mandamus only when he has some particular interest or right to be protected, independent of that which he holds in common with the pub- lic at large. 1 And where it does not appear that he has any interest to be promoted, or that his rights are in any degree impaired by the omission of duty complained of, more than those of any other individual citizen, he will be denied the relief.^ So in Michigan the courts have denied the right of an individual citizen to institute proceedings in mandamus against public officers to compel the performance of a public duty, un- less he shows some special interest, or clear, legal right in the Blackford, J., say: "The only remaining question in the cause is, whether, admitting the writ might issue. Bates was a proper relator? The objection is that some officer of the state, and not a mere private person, should have been the rela^ tor. Were this a case merely for private i-elief, the relator would have to show some special interest in the subject matter. But here the case is difl'erent. The defendant, who was county auditor, refused to issue the legal duplicate for the col- lection of the taxes, and a man- damus was applied for to compel him to discharge this duty of his office. It is a case for the enforce- ment, not of a private, but of a pub- lic right; and it is not necessary, in such cases, that the relator should have a special interest in the matter, or that he should be a public officer. That the defendant should dis- charge correctly the duties of his office, was a matter in which Bates, as a citizen of the county, had a general interest; and that interest was, of itself, sufficient to enable him to obtain the mandamus is question, and have his name in- serted as the relator. There is f New York case in which this sub jeot is fully discussed, and in which it is held that any private citizen may be a relator where, as in the present case, the mandamus is in a matter of public right. The man- damus in the New York case com- manded certain commissioners of highways to open a certain public road ; and it was held that, in such case, the attorney general, or any citizen of the state, might be the relator. The People v. Collins, 19 Wend. 56. We are unanimously of opinion, for the reasons above given, that the judgment of the circuit court ordering a peremptory man- damus to issue in this case is cor- rect." ' State «. Inhabitants of Strong, 25 Me. 397. »Id. CHAP. VI.] OF THE PARTIES. 307 matter. 1 So in Pennsylvania, it is held that mtmicipal authori- ties will be set in motion and compelled by mandamus to per- form a purely public duty, only upon the application of some person actually representing the public interests. Thus, a pri- vate citizen will not be allowed a mandamus to compel town authorities to open an alley within the corporate limits, even though the duty of opening the alley is imposed upon the corporation by an act of legislature, and though the individual relator shows a personal interest in the matter, from the enhanced value likely to accrue to his adjoining property by the opening of the alley. ^ However satisfactory the reason- ing of the courts in the states here referred to may appear, yet the undoubted weight of authority supports the doctrine as laid down in the previous section, and the distinction there noticed is too well established to be easily overthrown. § 433. In conformity with this distinction between cases of public and of private right, it is held, that a private citizen may properly be the relator in proceedings by mandamus, to compel the authorities of a municipal corporation to maintain a bridge and to keep it open for the passage of boats, these duties being required by law of the corporation.^ So where the writ is sought to compel highway commissioners to com- ply with their duty in the opening of a public road, the ques- tion being one of public and not of private right, the people are the real party in interest, and the relator need not show ' People V. Regents of University, and his right to the relief must 4 Mich. 98; Peoples. Inspectors of clearly appear; but where the ob- State Prison, lb. 187. ject is the enforcement of a public ' Heffner v. The Commonwealth, right, the people are regarded as 28 Pa. St. 108. the real party, and the relator need ' City of Ottawa i>. The People, not show that he has any legal in- 48 111. 333. " When the remedy is terest in the result. It is enough resorted to for the purpose of en- that he is interested, as a citizen, in forcing a private right, the person having the laws executed, and the interested in having the right en- duty in question enforced." Per forced must be the relator. The re- Bbbebb, C. J. lator is considered the real party, 308 MANDAMUS. [PAET I. any personal interest. In all such cases, the refusal of the officers to act is no more the concern of one citizen than of another, and it is the right, if not the duty, of every citizen to interfere and see that the public grievance is remedied.' So ' People r>. Collins. 19 Wend. .56; Hall V. The People, 57 111. 307. In People V. Collins, the court, Cowbn, .J., after stating the principle that in eases affecting private rights the title of the relator must appear, say; " In matter of mere public right, however, it is otherwise; here the people are the real party, as in the other case they are the nominal. Yet it is well known that they can not act except through individual in- formation by their attorney general or some private person. The latter is the constant course in procuring indictments, which, on being found, may then, by permission of the court, be pursued either by the pub- lic prosecutor or by private coun- sel. The power of this court to grant a mandamus at the suit of the people to compel the commissioners of highways to perform their duty, has often been exerted and can not be questioned. The People v. The Commissioners of Salem, 1 Cowen, 33; The People ex rel. Palmer v. Vail, lb. 589; Ex parte Sanders, 4 Id. 544. In such cases the wrong- ful refusal of the officers to act is no more the concern of one citizen than another, like many other pub- lic ofiFenses. It is at least the right, if not the duty of every citizen to interfere and see that a public of- fense be properly pursued and pun- ished, and that a public grievance be remedied. In Rex v. White, speaking of a mandamus for a public, as distinguished from a private object, Lord Hard- wiCKB said: 'The reason why we grant these writs is to pre- vent a failure of justice, and for the execution of the common law, or of some statute, or of the king's charter.' In Rex v. The Justices of Herefordshire, 1 Chitty's R. 700, the court said they could grant a man- damus to th* justices in sessions to elect a county treasurer; and that was then moved for by private counsel, without objection. In the cases before this court in- respect to commissioners of highways, no one thought of turning the relators over to the attorney general with a view to obtain his authority. In Rex «. Sparrow, 3 Strainge, 1133, a mandamus was granted command- ing justices to appoint overseers of the poor. These and the like mo. tions are generally made, I suppose, on the relation of some municipal corporator who feels a more lively interest in the matter for being so. But clearly, in the case of the pub- lic highway, his legal interest is no more than that of any other citizen. For obstructing it an indictment lies. A mandamus stands much on the basis of an information in na- ture of a quo warranto. Such an information had been obtained against the common councilmen of York, on the ground that they had not received the sacrament within six months, according to an act of parliament requiring this from offi- cers of corporations generally, as a qualification to receive and hold their places. The party making the CHAP. VI.] OF THE PARTIES. 309 it is laeld that iu such matters of public right as the canvassing of election I'eturns, any citizen may be a rela- tor in an application for mandamus. ^ And the rule as sometimes stated, that the relator must show an indi- vidual right to the thing sought, is to be taken as appli- cable only to cases where individual interests are affected, and it has no reference to cases vrhere the interest is common to application had no connection with the corporation, which, it was not denied, would ordinarily he an ob- jection-, but in this case the appli- cant was received, Ashuest, J., ob- serving that ' where the application is made merely to disturb the local peace of the corporation, it is right to inquire into the motives of the party, to see how far he is connected with the corporation. But the ground on which this application is made is to enforce a general act of parlia- ment, which interests all the corpo- rations in the kingdom.' Builbk and GrKOSB, justices, concurred. Rex V. Brown, 3 T. R. 574, note. In Rex 11. Stacey, 1 T. R 3, a case was presented in which it was admitted the attorney general might prose- cute, but the court refused to re- ceive a private prosecutor, on ac- count of long acquiescence. Lord Mansfield said, the information might be refused on other circum- stances warranting the court to say 'you shall not make use of the king's name for such and such pur- poses.' Rex V. The Justices of the West Riding of Yorkshire, 7 T. R. 467, was an application, by a pri- vate individual, for a mandamus commanding the quarter sessions to render judgment on an indict- ment for a nuisance in obstructing a highway; yet no objection was made because the prosecutor was a private person. The court said the proper remedy for the prosecu- tor was by writ of error, because the return showed an imperfect judgment. In Rex ®. The Commis- sioners of the. Land Tax for the Parish of St. Martin in the Fields, in Westminster, a mandamus was granted to compel the defendants to elect a clerk. 1 T. R. 146. This was on the relation of a private in- dividual ; at least the attorney gen- eral did not appear in the matter. A public statute commanded the commissionera to appoint the clerk. There are many other cases in the books moved by private persons, which were yet founded on matters of as general and public a nature as those presented by the case at bar. No doubt the attorney general might very properly have moved in this case, and had all private citi- zens refused to interfere and give information, it might have been necessary, but I can not collect from any of the books or the reason of the thing that he alone has power to move. It is not for the defendants to object that several responsible relators appear 4n the matter." But see, contra, Heifner v. The Commonwealth, 38 Pa. St. 108 ; Sanger v. County Com- missioners of Kennebec, 25 Me. 291. ' State «. County Judge of Mar- shall, 7 Iowa, 186. 310 MANDAMUS. PART I. the whole community, or to the public at large, i At the same time, it is regarded as especially appropriate, where the proceedings affect a particular public interest of the state, that the officer entrusted with the management of such interest should be the relator. Thus, where mandamus is sought to compel the performance of a duty affecting the finances of the state, it is especially appropriate that the officer particularly charged with the management of its finances should be the moving party. ^ § 434. In conformity with the distinctions already noticed, it is held, where proceedings are instituted in mandamus, to compel the treasurer of a public fund to pay an order drawn upon him, that the relator should be the real party in interest, namely, the holder of the order, and not the party by whom it was drawn, and that if granted upon the relation of the latter, the writ should be quashed.^ For example, where the writ is sought upon the relation of the board of education of a city, to compel the city treasurer to pay certain orders, drawn by the board in favor of a contractor for the erection of school buildings, the board having parted with their interest in the funds by drawing and delivering the orders, are not proper parties to institute proceedings to compel payment, where the real party in interest sees fit to acquiesce in the refusal to pay.* ' People D. Halsey, 37 N. Y. 344. the further avermeut that the de- " State v. Hamilton, 5 Ind. 310. fendant has money in his hands- ' State V. Haben, infra. with which he ought toiiave paid * State V. Haben, 32 "Wis. 660. the orders, constitute all of the ma- "The object of the writ," says terial allegations of the writ. The DrxON, C. J., "is to compel the re- other matters stated, though veiy spondent, who is the treasurer of the useful to show the embarrassments city, to pay two orders for the sum of the board of education caused of $100 each, drawn by the relators, by the respondent's withholding the board of education of the city, money due upon its orders, are in favor of one Alger, a contractor wholly irrelevant to the real cause on the high school building, and of action set forth, which is the delivered to him, which orders, now improper refusal to pay the sum of in the possession of and belonging $300 to Mr. Alger. The embarrass- to Mr. Alger, have been presented by ments of the board constitute no him to the defendant, and payment ground for issuing the writ, or demanded and refused. These, with reason why the members should CHAP, fl.] or THE PARTIES. 311 So, it fi a sufficient objection to the issuing of the writ that too mf ny parties have joined in the application. Thus, where different claimants of money due from the state, join in pro- ceedings for mandamus to compel the payment of the money, alleging their claims to be separate, the application will be refused.! § 43'). A board of county commissioners, acting as an adminiptrative body, or as a quasi corporation, with certain limited powers and duties prescribed and fixed by law, are not proper parties to compel by mandamus a turnpike company to kee] in repair a bridge forming a part of the company's road, v-here such commissioners are vested by law with no super V] lion or control over such matters.^ § iSf. In some of the states, the degree of interest neces- sary to make one a proper party to institute the proceedings is fixed by statute. And it is held that the effect of a statute, which provides that the writ may be issued upon the informa- tion, under oath, of the party beneficially interested, is not to render any person a competent relator, regardless of whether he has any right or interest to be protected, but only to warrant interfere to compel the payment of violation of that right, it is well money to a third person, in which settled that the application must be they have no actual interest. The by the real party in interest. The board parted with all its interest in case in this respect differs entirely the money on issuing the orders, from that of The State ex rel. etc. v. and if the holder of the orders sees City of Cincinnati et al. 19 Ohio, fit to acquiesce in the respondent's 178, and others cited by counsel, refusal to pay them, or not to insti- where the relators had not parted tute proceedings to compel their with their interest in the funds by payment, as he might do, no reason the issuing and delivery of proper is perceived why the board should orders, but where the proceedings complain. As already observed, the were instituted against other offl- obstacles thrown in the way of the cers to compel them to perform future operations of the board by certain duties, in order to ena,ble the refusal of the respondent to pay the relators to obtain control of its orders, should he persist in so funds to which by law they were doing, constitute no ground in law entitled." for issuing the writ. It is only upon ' Heckart v. Roberts, 9 Md. 41. the clear legal right to have the ' State i>. ZanesTille Turnpike Co. orders already issued paid, that the 16 Ohio St. 308. writ can be granted ; and for the 312 MANDAMUS. [PAET I. the writ in behalf of the pu-blic, through its officers, for the enforcement of a public duty, or in behalf of a private citizen whose interests are to be affected, or whose rights are to be enforced. 1 But under such a statute, it is held that voters in certain townships, whose votes have been rejected in the canvass of an election upon the location of a county seat, and who have thus been deprived of a voice in the election, are parties beneficially interested within the meaning of the act, and hence proper relators to compel a re-canvass of the election. 2 § 437. Proceedings for mandamus being strictly in the nature of a personal action, it follows necessarily that they die with the person in whose behalf they have been instituted. They can not, therefore, be prosecuted by the personal repre- sentatives of the relator after his death. ^ Where, however, the proceedings are instituted by a public officer in his official capacity, for the public benefit, as to obtain possession and custody of a building pertaining to him by virtue of his office, the action does not abate by the termination of his office, but may be prosecuted by his successor.* ' State V. County Judge of Davis to have "been prosecuted by thena in Co. 3 Iowa, 380. their official character of sheriff for ^ State «. Bailey, 7 Iowa, 390. the time being, for the public ' Booze V. Humbird, 27 Md. 1. benefit, and not as individuals. In * Felts 1). Mayor and Aldermen such u case the law regards the of Memphis, 3 Head, 650. This was name of the office, and not the an action of mandamus brought by adjunct name of the individual ; a sheriff, to be restored to the and in it are implied all the succes- custody and control of a public jail. sors that shall ever be to it, each Weight, J., for the court, says : successor for the time of his term " The next question is, whether any- being the real plaintiff to support thing has transpired since the insti- the action, whether described by tution of this suit to abate it? The name or not. And if one die, or his official term of Gilmore, who was term of office expire, before the then the sheriff, has expired, and determination of the suit, it shall though Felts, his successor, becapie be continued by his successor, and a party by an amended petition, yet will not abate. 1 Hayw. 144 ; Polk his term has also expired and his e. Plummer et al. 3 Humph. 500. successor been elected. The record We are of opinion, therefore, that does not disclose any personal or the present sheriff of Shelby county individual interest, either in Gil- may take the benefit of this suit." more or Felts ; but the suit appears CHAP. VI.J or THE PAETIES. 313 § 438. Where it is sought by mandamus to compel a board of education to admit a minor child to the privileges of the public schools, while the proceedings are in reality for the benefit of the child, the father is the proper party to make the application, being the natural guardian of the child and charged with his education. ^ § 439. Where the interests of several relators seeking redress by mandamus are separate and independent, they can not join in one and the same writ, but should have separate writs, according to their several interests. ^ Thus, where different members of the common council of a city, who have been removed from their offices, seek by mandamus to be restored, they can not all join in one writ, since, their interests being several and independent, a joint restitution can not be awarded them.^ And where two persons have been severally awarded damages, for injuries sustained by them individually •in the laying out of a road across their respective lands, in which they have no common interest, it seems that they can not join in an ajDplication for a mandamus to compel tlie county authorities to pay such damages.* 'People 1). Board of Education Kep. 332; Anon. 2 Salk. 436. of Detroit, 18 Mich. 400. And see Hoxie v. Commissioners of '' King V. City of Ciiester, 5 Mod. Somerset, 25 Me. 333. Eep. 10 ; King v. Mayor of Kingston- ' King^ v. City of Chester, 5 Mod. upon-Hull, 8 Mod. Kep. 209 ; Same Rep. 10. V. Same, 11 Mod. Rep. 882; King * Hoxie «. Commissioners of Som- V. Town of Andover, 12 Mod. erset, 25 Me. 333. 314 MANDAMUS. [PAET I. II. Parties Against whom the "Weit is Geanted. g 440. Writ should run to person wlio is to perform duty ; official capacity; joinder of respondents. 441. Writ may run to successors in office; the general rule and its I illustrations. 443. Mandamus to municipal corporations, joinder of respondents. 443. Change of municipal officers, effect of 444. Board of county commissioners. 445. Mandamus to pay interest on municipal aid bonds, railway need not be a party. 446. Mandamus to courts, how addressed. 447. Writ not granted vrhere it does not appear who is to make return. § 440. As regards the joinder of parties respondent in writs of mandamns, the first general principle to be observed is, that the writ should run to the person or body whose duty it is to perform the act required, i It will not, therefore, lie to one person to command another to do the required act.^ And where the purpose of the writ is to secure the perform- ance of an official duty by a public oflicer, it should be addressed to him in his official and not in his private capacity.^ But if the petition or application for the mandamus is against t-^^o officers jointly, and it can not be sustained as to one of them, it necessarily fails as to both.* Where, however, several writs have been asked against several persons in one and the same rule to show cause, it has been held that a peremptory man damus might be allowed as to one and denied as to the others. ^ § 441. It would seem to be proper, in all cases where the aid of mandamus is invoked to compel the performance of official duties by public officers, after the expiration of their term of office, that the proceedings should be carried on against the successor of the officer, since the action is brought against ' People V. Common Council of * Chance «. Temple, 1 Iowa, 179. New York, 3 Keyes, 81 ; Regina «. ■* People t). Yates, 40 111. 126. Mayor of Derby, 3 Salk. 436 ^ State v Supervisors of Beloit, 20 ' Regina v. Mayor of Derby, supra. Wis. 7&. OllAP ^I.j OP THE PAETIE8. 315 liim in liis official and not in his individual capacity. ^ Thus, where the duty of assessing and levying a special tax is imposed by law upon a public officer, the statute fixing the duty not being limited to any particular incumbent of the office, the duty will be treated as obligatory upon successors in the office, and its performance may be required of them by mandamus.^ And where proceedings in mandamus are instituted against a state auditor, to compel him to issue his warrant upon the state treasurer, for the payment of an indebtedness due from the state, the resignation of the auditor and the appointment and qualification of his successor, present no defense, either in abatement or in bar of the action, which may be carried on against the successor, it being substantially a controversy between the relator and the state. ^ "Where, however, the officer goes out of office before the determination of the man- dam lis proceedings, and before judgment therein, and the action is not revived against his successor, it is improper for the court to give judgment against him as if he were still in office, and to award a peremptory mandamus against both him and his successor in office, since he may properly object that he no longer possesses the power to execute the comm&,nds of the writ.* ' See Lindsey v. Auditor of Ken- relator a patent for certain lands, tucky, 3 Bush, 231 ; Bassett v. Bar- The secretary filed a return, in the bin, 11 La. An. 672; Commissioners nature of a plea to the jurisdiction, of Columbia v. Bryson, 13 Fla. 281 ; pending the consideration of which Pegram v. Commissioners of Cleave- by the court he resigned. Four land,. 65 N. C. 114; State v. Gates, months after his resignation, a man- 33 Wis. 310 ; State v. City of Mad- damus was issued, directed to him ison, 15 Wis. 30 ; Maddox v. Graham, or to his successor in oflSce, com- 3 Met. Ky. 56 ; Clark v. McKenzie, manding him to convey the land. 7 Bush, 533. The writ, when issued, was served ' Bassett v. Barbin, 11 La. An. 678. upon the successor, as one of the ' Lindsey v. Auditor of Kentucky, parties named in the alternative 8 Bush, 331. judgment, although no proceedings ' Secretary v. McGarrahan, 9 Wal. had been taken to revive the suit 398. This was a petition, originally against him, or to make him a party, brought in the supreme court of the and no notice of the pendency of the District of Columbia, praying that action was given him, and no oppor- a mandamus might issue to the sec- tunity to answer the application retary of the interior, to issue to the upon its merit? Upon these objec- S16 MANDAMUS. [PAET I. § 442. Questions of considerable importance have arisen in determining upon the proper joinder of parties respondent, in cases of mandamus to municipal corporations. The doctrine of the kings bench, establish«d at an early period, seems to have been that the mandamus should be directed to the body politic by its corporate name, and it was held that if the writ was not thus directed, but ran to the mayor and aldernien of the muni- eipality, it might be quashed.'- But in this country, the doc- trine is well established, that in cases of mandamus to coerce the performance of a duty incumbent upon a municipal cor- poration, as the duty of levying a tax to provide for the pay- ment of a judgment against the municipality upon its bonds, the writ may properly run to the mayor and aldermen of the corporation, without being directed to the municipality in its corporate name.^ And where the municipal corporation is composed of several distinct bodies or organs, the writ should be addressed to that particular branch of the municipal gov- ernment, whose province and duty it is to perform the particn- tions, as well as others, the decision of the court below was reversed on error to the supreme court of the United States. Mr. .Justice Clif- ford, for the court, says : " Service was made upon 0. H. Browning, secretary of the interior; but the fact is conceded, or not denied, that lie had resigned and gone out of office four months before the deci- sion of the court was announced. When he resigned, of course the suit abated, but the court gave judg- ment against him as if he were still in office, and decreed that the writ of mandamus should be directed to him and to his successor in the office. Complaint may well be made by that party, that he no longer pos- sesses the power to ej^ecute the com- mands of the writ, and the present secretary may well complain that he is adjudged to be in default, though he never refused to allow the relator to purchase the land, and that the judgment was rendered against him without notice, and without any opportunity to be heard. Notice to the defendant, actual of constructive, is essential to the juris- diction of all courts, and the better opinion is, that a judgment rendered without notice may be shown to be void, when brought collaterally be- fore the court as evidence." ' Regina i>. Mayor of Hereford, 2 Salk. 701. And see King i). Taylor, 3 Salk. 231. But see King ii. Mayor of Abingdon, Ld. Raym. 559. « Mayor ». Lord, 9 Wal. 409 ; Peo- ple «. Mayor of Bloomington, 5 Chicago Legal News, 136, Supreme Court of Illinois, decided June 34, 1872. And see People i>. Common Council of New York, 3 Keyes, 81. CHAP. TI. ] OF THE PABTIES. 317 lar act, or to put the necessary macliinery in motion to secure its performance.' § 443. Proceedings by mandamus against municipal officers, to compel the performance of their official duties, being vir- tually proceedings against the corporation, a change in the membership of the officers does not so change the parties as to abate the proceedings, the municipal body being a continuous one, and the writ being addressed to tlie officers in their offi- cial capacity, rather than as individuals. ^ Indeed, this prin- ciple has been carried to the extent of allowing proceedings in mandamus against a municipal officer, in his official capacity, upon whom due service of process has been made, to be con- tinued against his successor, without compelling the party aggrieved to begin de novo.^ And where the jurisdiction is invoked against the mayor and common council of a city, to compel the performance of an official duty, required of them by law, it is no objection to the alternative mandamus, that it does not show who compose the common council, since, if the peremptory writ should finally issue, it would be directed to ' People V. Common Council of where a corporation is required by New York, 3 Keyes, 81. This was law to do a particular act, the man- au application for a mandamus damus is addressed to that organ of against the common council of the the corporation which is to perform city of New York, to compel them it. In the language of some of the to perform a duty required of them cases, the writ lies against the body by law in creating a certain public upon whom the duty of ' putting the fund or stock. Mr. .Tustice Wright, necessary machinery in motion ' is for the court, says : " As to the ob- imposed. The common council is jection that the common council the only organ of the corporation of owe no duty to the relators, it is the city of New York, which can based on the ground that the statute, create the stock under the statute, in language, imposes the duty to It must be done by an ordinance, create the stock upon ' the mayor, and that can only be enacted by the aldermen and commonalty of the legislative department, viz. : the city of New York,' that is, the muni- common council. (City Charter, cipal corporation, and not upon the Laws of 1857, Vol. I, p. 874.) " common council. This objection is " Commissioners of Columbia ». equally groundless with that which Bryson, 13 Fla. 381. has been considered. The rule is well ' State v. City of Madison, 15 "Wis. established that the writ lies to the 30 ; State i). Gates, 23 "Wis. 310. And person or the body whose legal duty see Lindsey i). Auditor of Kentucky, it is to perform the required act ; as 3 Bush, 331. 318 MAWDAMIJS. [PAET I. the mayor and common council, whoever they might be, com- manding tliem to do the act required, i § 444. "Where it is provided by statute, that all acts and proceedings by or against a county in its corporate capacity, shall be in the name of a board of county commissioners, by whom all the corporate functions of the county are to be exer- cised, such board of commissioners retains its perpetuity, not- withstanding changes in its individual members. Where, therefore, mandamus is sought to compel the performance of an official duty by such commissioners, the writ is properly directed to the board, and the different members composing it are bound to obey the mandate of the court. ^ § 445. In case of mandamus against the authorities of a municipal corporation, to compel the jjayment of interest on the bonds of the mimicipality, issued in aid of its subscriptions to a railway, it is not necessary that the railway company should be made a party to the proceedings, nor need the tax- payers of the city be joined, nor other holders of the securities.^ § 446. Where the aid of a mandamus is invoked against an inferior court, it would seem to be sufficient, ordinarily, to address the writ either to the court as such, or to the individual judges composing it.* But where there are other judges authorized to hold the terms of the coiirt, the mandamus should be addressed individually, since in case of disobedience to the writ the power of enforcing obedience is exercised over the judges personally.^ § 447. The fact that it does not appear who is the proper person to make return to an alternative mandamus, if granted, is a strong objection to the issuing of the writ, and where the very object of the proceeding is to determine this question, the application will be refused.' ' State «. City of Milwaukee, 25 10 Mo. 118. Wis. 122. ' Hollister «. Judges, 8 Ohio St. '' Pegram «. Commigsioners of 201. Cleaveland, 65 N. C. 114. « Queen v. Dolgelly Union, 8 Ad ' Maddox v. Graham, 2 Met. Ky. 56. & E. 561. * St. Louis County Court®. Sparks, CHAPTEE VII. OF THE PLEADINGS IN MANDAMUS. I. GrBNBRAL PlirNCIPLB8 QOVEKNING THE PLEADINGS, ... § 448 II. The Rbtorn to the Alternative Writ, 457 III. Pleadings Subsequent to the Return 488 I. General Peinciples Goveening the Pleadings. § 448. The general rules of pleading applicable to mandamus ; the statute of Anne and its eflfect. 449. Alternative writ should make out prima facie case ; eflFect of demur- rer to the writ. 450. Requisites of the petition. 451. Alternative mandamus open to usual modes of pleading applicable to declaration. 452. Plea in abatement waived by plea to the merits. 453. Rule in California as to pendency of other proceedings. 454. Defects in substance in alternative writ, when taken advantage of; information not subject to demurrer. 455. Effect of motion to quash petition s*andlng in lieu of alternative writ. 456. Requisites of application to compel issuing of tax deed. § 448. The general principles and rules of pleading may be said to prevail in cases of mandamus, as far as applicable to the subject matter, and in the absence of statutory regulations to the contrary, the practitioner must still resort to and be governed by the rules established at common law. Prior to the passage of the statute of Anne,^ the utmost strictness was required in the pleadings upon applications for mandamus, ' 9 Anne Ch 20, see Appendix A. (319) 320 MANDAMUS. [PAET I. since the application wafe determined solely upon the alterna- tive writ and the return thereto, the relator's onlj' remedy, if denied the relief, being by an action for a false return. The effect of the passage of the statute of Anne was to assimilate the proceedings, in cases falling within its provisions, to ordi nary actions at law, the relator setting forth his right or cause of action in certain formal modes, to which the respondent set up his defense by way of return, the relator then being at liberty to plead to or traverse the return, and the respondent might then reply, take issue or demur. ^ The pleadings were thus made to conform substantially to those in ordinary actions at law, and subsequent legislation in England rendered the likeness still more complete. In some of the states of this country, the statute of Anne has been recognized by judicial decisions, as forming a part of the system of laws adopted by the colonies from the mother country, while in others its pro- visions have been substantially re-enacted, so that in most of the states of the Union it forms a component part of the law regulating the subject of mandamus. This important statute may be said to bear the same relation to the law of mandamus in America, as the original statute of frauds to the law of con- tracts, and it has fonned the basis of most of the legislation in this country upon the subject of pleadings in mandamus. § 449. The alternative writ of mandamus is usually regarded as standing in the place of the declaration, in an ordinary action at common law.^ Testing this writ, therefore, by the ordinary rules of pleading, its first requisite is, that it should make out a prima facie case entitling the party aggrieved to the extra- ordinary aid of the court. ^ It follows, also, as in ordinary 'See 3 Black. Com. 365; Com- Mayor of Chicago, 51 111. 28; Peo- mercial Bank b. Canal Commission- pie v. Salomon, 46 111. 336. But in ers, 10 Wend. 26. See, as to the Wisconsin, it la held that the peti- efifectof the code of procedure upon tion on which the alternative writ the writ of mandamus and the issues performs the office of the de- pleadings and procedure therein, claration. State «. Lean, 9 Wis. 279. Weber «. Zimmerman, 33 Md. 45. ' People v. Hatch, 33 111. 139 ; Peo- = People ®. Hilliard, 29 111. 418 ; pie s. Mayor of Chicago, 51 111. 28. People 0. Hatch, 33 111. 139; Silver In People d. Hatch, Breese, J., de- «!. The People, 45 111. 337 ; People «. livering the opinion, says . " The CHAP. Til.] OF THE PLEADINGS. 321 actions, that a demurrer to the writ brings before the court the whole merits of tlie controversy, and the court will, on demur- rer, proceed to examine accordingly. ^ But it is sufficient if the alternative writ contains all the allegations necessary to call into action the power of the court. And where the mate- rial facts on which the relator foimds his application for relief are thus fully set forth, so that they may be admitted or trav- ersed, and they are admitted by demurrer to be true, the only remaining question for the court to decide is as to the law applicable to the admitted facts. ^ § 450. It is incumbent upon the person seeking the extra- ordinary aid of a mandamus, to set up in his petition or applica- tion to the court for the writ all the facts specifically, which, if true, would be necessary to entitle him to the relief sought. ^ And the relator should set forth in the petition or application, as well as in the alternative writ itself, all the facts upon which he relies for the relief sought, and. these should be stated so distinctly and clearly that the respondent may either admit or deny them, so that an issue may be framed on the facts alleged as the foundation for the relator's claim to relief.'* He must also show, not only that he has no other specific remedy, but that he has a specific right. ^ But, while mandamus is never granted where other adequate, legal remedy exists, it is not absolutely necessary that the petition should state, in so many words, that the relator is without other adequate remedy, if such appears to the court to be the actual faet.^ § 451. The alternative writ being, as we have seen, in the nature of a declaration at law, it is open to all the modes of pleading applicable to a declaration. Hence its allegations may be traversed, or may be confessed and avoided by alleging facts which go to avoid the eifect of the writ, or they may be alternative writ stands in the place 111. 28. of a declaration ; it is the declara- " People v. Hilliard, 29 111. 418. tion of the relator, and as in an or- ' State ®. The Governor, 39 Mo. dinary case commenced by a de- 388. claration, the plaintiff is bound to * State v. Everett, 52 Mo. 89. state a case prima facie good, so is ' Id. a relator in this proceeding." » People v. Hllliaid, 29 111. 418. ' People ». Mayor of Chicago, 51 21 322 MANDAMUS. [PAKT I. met by raising questions of law, upon the facts stated in the writ, by way of demurrer, i And it follows from the general analogy between the pleadings in mandamus and in ordinary actions at law, that a plea taking issue upon immaterial facts, and which neither traverses nor confesses and avoids material allegations, is bad upon demurrer. ^ § 4:52. Where the respondent pleads to the merits of the controversy, instead of relying upon facts which he might properly have pleaded in abatement, he thereby waives his plea in abatement. And while the pendency of another suit involving the same subject matter, would seem to be a good plea in abatement to the alternative writ, yet the respondent can not rely upon such plea, while he at the same time asks judgment of the court upon the merits of the controversy, by setting up facts upon which he relies as showing that a peremptory writ should not be allowed. ^ § 453. In California, the courts still adhere to the doctrine ' People «. Salomon, 46 111. 336. ^ State V. Eaton, 11 Wis. 29. ' Silver «. The People, 45 111. 337. This was an application to the court below for a mandamus to compel the respondent, a recorder of deeds, to permit the relator to have access to his office and its records for the purpose of transcribing them. The return denied that the matters set forth in the alternative writ were sufficient in law to entitle the rela,tor to a peremptory writ, which was treated by the court and counsel as a demurrer to the alternative writ. It further set forth the pendency of a similar suit in the same coxirt for the same purpose. " The only ques- tion," says Mr. Justice Lawkbncb, for the court, " upon which we have had any doubt is, whether the court did not err in striking from the re- turn that part of it which was de- signed as a plea in abatement. On consideration, however, we perceive no reason why the ordinary rules of pleadin'g should not be applied to this proceeding. The alternative writ stands in the place of a declara- tion, to which the return is an an- swer. The pendency of another suit for the same purpose would probably be a good plea in abate- ment, but the respondent can not rely upon that plea, and at the same time ask the judgment of the court upon the merits of the controversy, by setting up the facts upon which he relies as showing that upon the merits a peremptory writ should not issue. By adopting this course, he submits his cause to the judg- ment of that tribunal, and waives his plea in abatement. He elects, in fact, to have that court try the cause upon its merits, that he may plead its judgment, if in his favor, in bar of further proceedings in the suit pending before another tribu- nal." CHAP. VII.] OP THE PLEADINGS. 323 that the writ of mandamus is a high prerogative writ, issuing in the name of the sovereign power, and hence they refuse to entertain a ■ plea in abatement, alleging the pendency of another action involving the same issues raised in the man- damus proceeding.! So in proceedings by mandamus to compel the making of a subscription to the stock of a railway company, a plea that proceedings in quo warranto are pending against the persons claiming to compose the company, shows no defense to the action, and will be stricken from the files. ^ § 454. It is held that any defects in substance in the alternative writ, may be taken advantage of at any time before the granting of the peremptory writ, even after return made. ^ But where, under the practice of a state, proceedings for man- damus are begun by the filing of an information, the object of which is to make known to the court the ground of complaint and to ask the relief sought, such information is not regarded as a pleading to which a demurrer will lie, its purpose being to inform the court of the ground of action.* § 455. As a matter of convenience to the parties, it is fre- quently stipulated that the petition or application for the alternative writ may stand in place of the writ itself. In such cases, a motion to quash the petition has the effect of fully presenting for the decision of the court all questions raised by the petition, as well as their sufficiency to entitle the relator to the desired relief. In other words, the petition standing in place of the alternative writ, the motion to quash performs the same office as a general demurrer to the writ, and brings the law of the case fully before the court. It fol- lows, therefore, that all the facts which are well pleaded are admitted by the motion, and the question presented for the determination of the court is, whether enough is shown in the petition to entitle the relator to a peremptory writ.^ So a motion to set aside and discharge the rule to show cause why ' County of Calaveras v. Brock- 14 Barb. 53. way, 30 Cal. 335. * State «. Board of Equalization, ^ Oroville & Virginia R. Co. v. 10 Iowa, 157. Supervisors of Plumas, 37 Cal. 354. ' People ». Salomon, 51 111. 40. ' People '0. Supervisors of Fulton, S24 MAN-DAMirS. [PAKT }. a peremptory mandamTis should not issue, operates as a demurrer, and the statements of the relator in such ease are taken as true for the pui-poses of the motion, i And upon such motion, the court will not investigate facts outside the record. 2 § 456. "Where the aid of a mandamus is invoked to compel the issuing of a deed of lands sold for unpaid taxes, it is not requisite that the application should state all the facts neces- sary to show that the proceedings for the collection of the tax were regular, so that the deed, if issued, would avail the party seeking it. It is only necessary, in such case, to state the relator's right and the corresponding duty of the respondent, in general terms.* II. The Eetukn to the Alternative Weit. • § 457. The return defined; common law remedy by action for false return; effect of statute of Anne. 458. General features of the statute of Anne ; statute of "William ; statute of Victoria. 459. Effect of statute of Anne as to traversing return. 460. Functions of the return and its requisites. 461. Intendment in construing return. 462. When return taken as true. 463. Pleading several matters of defense in return. 464. Great strictness required in returns at common law. 465. Return necessary where respondent obeys the writ; requisites of such return. 466. Two courses open to respondent ; direct traverse, and plea in con- fession and avoidance. 467. General rule as to traversing raturn ; applications of rule to man- damus to municipal corporations. 468. Conclusions of law should not be traversed. 469. Matters of law not traversable need not be stated in return. 470. Rule for testing return by way of traverse. 471. Degree of certainty requisite in return. ' State V. Common Council of gan, 30 "Wis. 104. Milwaukee, 20 "Wis. 87. ' Kidder v. Morse, 26 "Vt. 74. ' State D. Supervisors of Sheboy- CHAP. VII.] or THE PLEADINGS. 325 473. Argumentative return bad ; facts should be stated and not conclu- sions from facts. 473. Eeturn by way of confession and avoidance ; general principle. 474. Degree of precision required ; rule applied to mandamus to correct amotion from municipal corporation. 475. Any cause existing at time of return may be shown. 476. Illustrations of rule allowing several consistent defenses to be interposed in return. 477. Return quashed where matters of defense are inconsistent. 478. Return sufficient if certain upon its face; negative pregnant not allowed ; rule applied to mandamus against municipal corpora- tions. 479. Return of discretionary powers of public officers against whom writ is granted. 480. Mandamus to municipal corporations and officers, by whom return should be made. 481. Requisites of return to mandamus to correct amotion from cor- porate office or membership. 482. Pendency of bill for injunction to restrain proceedings in man- damus not a good return. 483. Not duly elected, when a good return to mandamus to restore to office. 484. No money in treasury, when a good return. 485. Record of board of public officers, when taken as return- 486. Return in case of alias and pluries writ. 487. Return need not be verified by oath of respondent. § 457. The return to an alternative writ of mandamus may be defined as the legal statement or formula, by which the respondent answers the writ, showing either a compliance with its mandate or an excuse for not complying therewith, or that the relator is not entitled to the relief sought. At the com- mon law, and prior to the statute of Anne, no pleadings were allowed in mandamus beyond the return, and the court pro- ceeded to summarily hear and dispose of the application upon the alternative writ and the return, the latter being taken as conclusive. The return not being traversable, the only remedy of the relator in case it proved false, was by an action on the case for a false return. ^ This remedy, however, he was not at • See Enfield v. Hall, 1 Lev. part ber v. Zimmerman, 33 Md. 45 ; Lunt II. 238 ; Universal Church v. Trus- ®. Davison, 104 Mass. 498 ; Johnson tees, 6 Ohio, 445 ; State ii. Wilming- v. The State, 1 Geo. 271. Ion Bridge Co. 3 Barring. 540; We- 326 MCANDAMTJS. [PAET I. liberty to adopt until judgment had upon the sufficiency of the return. 1 To obviate this inconvenience, and for the pur- pose of obtaining speedier justice, as well as to assimilate the pleadings in mandamus to the ordinary common law plead- ings, the statute 9 Anne, Ch. 20,^ was enacted, regulating the pleadings in mandamus in all cases relating to municipal cor- porations and their officers, and by a more recent enactment its provisions were extended to all cases of mandamus.^ § 458. Most of the states of this country have either adopted the substantial provisions of this statute by express legislative enactment, or have recognized its binding force by judicial decisions, and a correct understanding of its pro- visions is of the highest importance in attempting to delineate the law of mandamus, as it prevails both in England and America. The statute authorizes the person suing or prose- cuting any writ of mandamus, in any of the cases therein specified, to plead to or traverse all or any of the material facts contained in the return, to which the respondent may reply, take issue, or demur. Such further proceedings are then to be had, as might have been had at common law if the relator had brought his action on the case for a false return. In case a verdict is found for the relator, or judgment is given for him . upon demurrer, or by nil dioit, or for want of a replication oi other pleading, he is entitled to his damages and costs, and a peremptory writ of mandamus shall issue without delay, as might have been done at common law if the return were adjudged insufficient.* The effect of the statute was to assim- ' Enfield v. Hall, 1 Lev. Part 11,238. tion of this statute, the party, if he ^ See Appendix A. intends to traverse any fact, must ' 1 "Wm. 4. Ch. 21. do so before he sets the return down * See Appendix A. The condi- for argument, and takes the opinion tion of the pleadings in mandamus, of the court as to its sufficiency. both before and after the statute of The object of that statute was to Anne, as well as the true construe- expedite the proceedings on this tion of this important act, are very writ. It seems to have been the lucidly set forth in King v. Mayor practice before it was passed, that & Aldermen of London, 3 Barn, & when a return was made, it must Ad. 255, as follows: Lord Tenter- have been first argued and adjudged DEN, C. J. " On the true construe- sufficient before an action for a false CHAP. VII.] OP THE PLEADINGS. 327 ilate proceedings in mandamus to those in ordinary personal actions, and though it did not abolish the common law remedy by an action on the ease for a false return, it yet rendered this remedy practically obsolete, by substituting in its stead a more expeditious form of procedure, by which complete relief was aiforded in one and the same proceeding, without compelling the relator to resort to his collateral remedy by an action for a return could be maintained. That caused some delay. To relieve the party suing out the writ from this, the act allows him to plead to, or traverse the facts in the return ; and if the issue on the traverse be found for him, it becomes immaterial whether the return be sufficient or not, and he is to have a peremptory mandamus, in the same manner as he might have had if the return were adjudged insufficient. All this is very plain. If it turn out that the facts are untrue, the result will be the same as though they were true, and the return were held insufl5cient. But then it is said, that if the issue be found in favor of the party making the return, there could be no mandamus, be- cause, in case of an issue in fact joined, the statute only authorizes a peremptory mandamus where such issue is found in favor of the prosecutor. It is by no means clear, however, that the party might not, by application to the court, be per- mitted to question the sufficiency of the return in law. This would be analogous to the case where after verdict there is a motion in arrest of judgment, or to enter a judgment for the defendant non obstante vere- dicto. It is not necessary to decide how that would be, as it is not now before us. But a traverse, if taken at all must be taken in the first in- stance." LiTTLBDALB, J. "As the the law stands, there are two modes of proceeding on a return to a man- damus. Before the statute of Anne the party suing out the mandamus might object to the return that it was insufficient, and by moving for a concilium have the question ar- gued and determined. That was a proceeding in the nature of a de- murrer. And then after judgment was entered upon the record, if the facts stated were not true, he might have had an action for a false return. But the rule was, that he could not bring such action until the return was adjudged sufficient in point of law. Then to remedy the incon- venience which was supposed to exist at common law, the statute of Anne passed,which alters the course of proceeding, and enables the par- ty suing out the writ to traverse the facts in the return, without pre- viously taking any other proceed- ing. The tiue construction of the act is, that after the return is made the prosecutor may, if he choose, plead to or traverse any of the facts contained in it; but he may also adopt the common law course, and if he does so, he must follow it up. If he had traversed the facts and they had been found to be true, so that there had been a verdict for the persons making the return, I think the prosecutor might have 328 MAWDAMUS. [PABT I. false return. Neitter the statute of Anne, however, nor the act of 1 Wm. lY, Oh. 21, extending the provisions of the former act to all cases of mandamus, gave to the relator the right of demurring to the return, in order that the decision of the lower court upon its validity might be reviewed on writ of error. This defect in the procedure was supplied by applied to the court to enter up judgment in his favor, on the ground of the insuflciency of the return in point of law, or he might have brought a writ of error on the judgment. In Kynaston «. The Mayor and Aldermen of Shrews- bury, Str. 1051, after a special verdict on a traverse of.the return, and a rule obtained for a peremptory man- damus, judgment was entered up that the return was not suflScient in law, and that it be disallowed and quashed." Taunton, J. " I am of the same opinion. The statute 9 Anne, C. 20, was intended to supply a defect in the law, namely, that where a return was made, the pros- ecutor, in order to have a peremp- tory mandamus, was obliged to in- sist upon the insuflBcienoy of the return in point of law. He could not traverse the facts contained in the return, although it were notori- ous to all the world that they wei-e false. The course was, as it Is now, where the sufBciency of the return IS disputed, to move for a concil- ium, and argue the validity of the return in point of law; if it ap- peared to the court insufficient, a peremptory mandamus was award- ed. But the prosecutor could not traverse any of the matters contained in the return, till judgment was given that it was sufficient in point of law. The statute now enables him to take an issue of fact upon the return, as he before might have taken an issue in law, and it puts a judgment on such issue on the same footing precisely, and causes it to be followed up with the same con- sequences as, before that time, a judgment upon an issue of law was. The prosecutor of a man damns may now, like any other party who is to answer a pleading on any record, either traverse the material facts, or question the suffi- ciency of the rriatter pleaded in point of law ; but he can not argue the sufficiency of the return, and then, when that has been adjudged against him, traverse the facts. I give no opinion whether, supposing the prosecutor of a mandamus choose, in the first instance, to go to trial on the traverse, and the issue be found against him by a jury, it be competent to him to question the return in point of law. That is the converse of this case, and is not now before the court." Patteson, J. "I entirely am of the same opinion. Before the act of parlia- ment, if the facts returned to a man- damus amounted to a sufficient an- swer in point of law, there was an end to the proceeding by man- damus. The only course for the prosecutor was, to apply to the court to quash the return for insuf- ficiency. If the court held it to be sufficient, the party suing out the writ could only bring an action on the case for a false return. The statute now gives him a further CHAP. VII.] OF THE PLEADINGS. 329 the act of 6 & 7 Yict. Ch. 67, i whicli provides that in all cases in which the relator desires to question the validity of the return, he shall do so by demurrer, in like manner as in ordinary personal actions, and upon judgment thereon any party aggrieved is authorized to prosecute a writ of error. ^ § 459. It will thus be seen that proceedings in mandamus, which at common law were arbitrary, cumbrous and unsatis- factory, have gradually been moulded into uniformity with the proceedings in ordinary personal actions, and are subject to the same general principles, in as far as concerns the pleadings necessary to bring the parties to an issue, and to procure a final determination upon their rights. And in this country, as well as in England, proceedings in mandamus are now usually regarded as in the nature of an action, to wliich the parties may plead as in other actions. In those states in which the statute of Anne is in force, the return to the alternative writ may be traversed, and this right of traversing the return is regarded as in lieu of the former action for a false return. ^ But in the absence of statutory authority, allowing a traverse to the return, it would seem that the common law rule still' prevails, where the statute of Anne has not been adopted, and the relator is left to his remedy by action for a false return.* benefit ; it first allows him to trav- = Johnson «. The State, 1 Geo. 371. erse the facts contained in the re- * Green u. African Methodist So- turn, and if they be found to be ciety, 1 S. & R. 254; Commonwealth false, it gives him a peremptory «. Commissioners of Lancaster, 6 mandamus, which he could not Binn. 5; Commissioners Court ». have had at common law without an Tarver, 21 Ala. 661 ; State v. Wil- action. It seems to me that, since mington Bridge Co. 3 Earring. 540. the statute, the motion for a con- But see Pitzhugh ». Custer, 4 Tex. cilium on a return to a nlandamus 391, where it is held that even in the is in the nature of a demurrer, and absence of any statute similar to the party making such motion the statute of 9 Anne, Ch. 20 and 1 stands in the same situation as a Wm. IV. Ch. 21, the common law defendant who has demurred to a rule of considering the return con- declaration ; who, if that be deter- elusive and remitting the relator to mined against him, can not after- his action for a false return, does wards take issue on the facts." not prevail, and that the rights of ' See Appendix B. the parties may be determined in 2 lb. one and the same controversy. 330 MANDAMUS. [PAET I. § 460. The proper function of the return is to show, not merely what would be & prima facie right in the respondent, in the absence of any allegation to the contrary, but to show a right to refuse obedience to the writ in view of the allegations which it contains, and if it fails to do this it is demurrable. ^ Unless, therefore, the alternative writ is quashed, the resjjond- ent is bound to make return, and to set forth, either a positive denial of the truth of the allegations contained in the writ, on which the relator founds his claim for relief, or to state other facts sufficient in law to defeat relator's right, since the court has already determined upon the application for the alternative writ, that the facts stated are prima facie true, and that they entitle the relator to the relief sought. ^ And, in general, the return should contain positive allegations of facts, and not mere inferences from facts. ^ § 461. It would seem that in as far as any presutnjjtion or intendment is exercised in construing a return, it should ordi- narily be in favor of and not against its sufficiency. And the courts will not, for the purpose of invalidating a return, pre- sume possible or even probable facts, which do not appear.* ' State B. Lean, 9 Wis. 279. accomplished by a demurrer, or by " Levy i>. Inglish, 4 Ark. 65. And a general traverse of the facts set see as to the sufficiency of the forth in the writ, it is generally return, Springfield v. County Com- done by matters averred in the missioners, infra. return by way of confession and ' Commonwealth v. Commission- avoidance. In which case, the facts ers of Allegheny, 37 Pa. St. 277; relied on to justify the refusal to Same v. Same, lb. 237. The rule is obey the mandate of the writ, must well stated in' this case by Mr. be clearly and specifically set forth, Justice Thomson, p. 379, as follows ; with sufficient certainty, and not " The establisliment of a duty and argumentative]}', inferentially, or the obligation to perform it, is upon evasively, so that the court may see the plaintiff to show, and this is at once that such facts, if established considered as done, prima facie, or admitted, are sufficient as the when the court awards the writ. alternative for obedience to the The respondent, upon service of it, writ." is bound either to obey, or show ^ Springfield «. County Commis- that the plaintilf has no right to siouers, 10 Pick. 59. See further, demand obedience, or that no duty upon the same subject, Brosius v. exists which he can be compelled Keuter, 1 I-Iar. & J. 551. to perform. Whenever this is not CHAP. VII.J OF THE PLEADINGS. 331 "WTiere, however, the return fails to answer the important facts alleged in the petition, every intendment and presumption will be made against it.i But as regards the sufficiency of the return, it is enough that it contains a full and certain answer to all the allegations expressly made, and that it discloses a fair, legal reason why the mandamus should not be obeyed.^ § 462. Where the statute of Anne does not prevail, the return is, in conformity with the common law rule, to be received as true for the purposes of the case, until proven false in an action for a false return, and if it contain matters suffi- cient to prevent the granting of the peremptory writ, that writ is refused.-'' And where the relator fails to traverse any of the allegations of the return, they are to be taken as true for the purposes of the application for a peremptory man- damus, the relator only being entitled to the peremptory writ upon the ground that he has disproved the truth of the return, just as at common law, when he had established its falsity by an action on the case, for a false return.* § 463. It is generally competent for the respondent to set forth in his return several distinct and separate defenses, at his option,^ and if he prevails on either of them, the per- emptory writ will be refused. ^ And where the statutes of a state, regulating civil practice and procedure, authorize defend- ants to plead as many matters as they may think necessary to their defense, the provision is held equally applicable to pro- ceedings in mandamus, and the respondent may, therefore, set up in his return as many separate defenses as he sees fit.'' It is, however, important that the several defenses relied upon 1 People V. Kilduff, 15 111. 503. ■" Tucker v. Justices of Iredell, 1 ' Springfield «. County Commis- Jones, 451. sioners, 10 Pick. 59. ° -K'a: parte Selma & Gulf R. Co. » Commonwealth «. Commission- 46 Ala. 330. And see Commissioners ers of Lancaster, 6 Binn. 5. And Court v. Tarver, 21 Ala. 661. see Commissioners Court v. Tarver, « Mx parte Selma & Gulf R. Co. 46 31 Ala. 661 ; Board of Police ii. Ala. 330. And see Regina «. Mayor Grant, 17 Miss. 77 ; Beaman v. Board of Norwich, Ld. Raym. 1244. of Police, 43 Miss. 337 ; Swan v. ■> Commissioners Court v. Tarver, Gray, 44 Miss. 393 ; Carroll v. Board supra. ■ of Police, 38 Miss. 88. 332 , MAWBAMtrS. [PAET I, in tlie return should be consistent witL. eacb. other, since, as we shall hereafter see, if thej be inconsistent or repugnant, the court may quash the entire return and grant the per- emptory writ, even though some of the matters stated might be suflioient as an independent return. ^ Or, it is within the discretion of the court to quash such portions of the return as it may deem insufficient, and to allow the rest to remain. ^ § 464. At common law, the utmost strictness was required in returns, and the courts in construing them exacted the highest degree of certainty known to the law. It is not too much to assert, that in no branch of the law was more technical precision required in pleading than' in returns to writs of mandamus.^ The reasons for requiring this strictness may be found in the fact that it was necessary, in order that the party injured might have sufficient ground on which to base his action for a false return, if it were false, and because the return fiould not be helped hj pleading.* And an additional reason may possibly be found in the tact that no intendment was made in favor of the return. ITotwithstanding the statute of Anne, the court of kings bench still maintained the rigor of the common law rule for a considerable period of time, holding that the statute in no manner took away the necessity of strict pleading.' And a repugnant and contradictory return is bad, notwithstanding the statute. ' § 465. Since the mandatory clause of the alternative writ always commands the respondent to perform the required act or duty in the alternative, that is, either to perform the act, or to show cause why it should not be done, it is at once obvious ' Regina «, Mayor of Norwich, Ld. in which more technical precision Raym. 1244; King ». Mayor of York, and nice discrimination are found, 5 T. R. 66. than in the rules which govern the ^ King 1). Mayor of Cambridge, 2 construction of returns to writs of T. R. 456. mandamus at common law." 2 See Harwood ®. Marshall, 10 * See opinion of Holt, J., in Rex Md. 451; Opinion of Holt, J., in v. Abingdon, 12 Mod. Rep. 401. Rex D. Abingdon, 13 Mod. Rep. 401. ' Queen v. Mayor of Pomfret, 10 In Harwood -o. Marshall, it is said Mod. Rep. 107. that " there is no branch of the law * Id. CHAP. VII.J OP THE PLEADINGS. 333 that the respondent has his option, either to question the siiflS- ciency of the writ in law or in fact, or to comply with the man- date of the court and perform the act required. By adopting the latter course, however, the respondent does not necessarily absolve himself from the duty of making return to the alter- native writ, and it would seem to be the correct practice in such case to make return that the mandate of the court has been obeyed. ' Thus, in an early case in the court of kings bench, where a mandamus had been issued to the judge of the prerogative court, to compel the granting of administration^ upon a motion to supersede the writ on affidavit that admin- istration had been granted before the writ was taken out, the motion was denied, the court holding that the facts relied upon in support of the motion should be set forth by way of return.^ Where the respondent yields obedience to the writ, it is sufficient to set forth by way of return, a succinct statement of his compliance, following the mandatory clause of the writ, and stating his performance of the duty as by the writ com- manded.^ And upon mandamus to justices of the peace, to proceed and give judgment in a cause pending before them, it is sufficient to allege, by way of return, that they have heard and determined the matter.* § 466. Where the respondent does not see fit to question the sufficiency of the alternative writ in point of law, either by motion to quash, demurrer, or other appropriate procedure for that purpose, and where he does not elect to obey the man- date of the writ, but desires to contest the application upon its merits, two courses are open to him. First, he may traverse the suggestion or supposal of the alternative writ, the practical effect of which method of procedure is equivalent to a plea of the general issue in ordinary personal actions. Or, secondly, he may plead matter by way of excuse or justification for his refusal to obey the mandate of the court, in which event he places himself in the attitude of a defendant in an ordinary • See Anon. 1 Barn. K. B. 363; 'King v. Parish of Lowton, 11 Rex V. Lord of Milverton, 3 Ad. & Mod. Rep. 301. E. 286, n. * Com. Dig. tit. Mandamus, D. 3. ' An'on.l Barn. K. B. 363. 334 MANDAMUS. [PAET I. personal action, wlio .interposes a plea by way of confession and avoidance. And the general principles governing these two generic classes of pleas, as applied in the usual course of proceedings in civil actions, are believed to be equally applica- ble to returns in mandamus. In either event, the object of the pleadings is to produce a definite issue, upon which the merits of the controversy may be determined, and final judg- ment rendered. An extended discussion of the principles of pleading governing j^leas by way of direct traverse, and in confession and avoidance, would be foreign to the purpose of the present work, and it is only proposed to consider here such principles as have been directly applied in the reported cases upon mandamus, leaving the reader to pursue a discus- sion of the more general principles in the various treatises on pleadings at common law, and under the codes of procedure adopted in the different states. § 467. Where the respondent desires, in his return, to traverse the suggestion or supposal of the alternative writ, the general rule is, that he should follow the suggestion itself, and where he pursues this in terms substantially as alleged, the, traverse will ordinarily be deemed sufficient, i It is, however, important to observe that the return should not be in mere general terms, without alleging specifically the facts relied upon. And where the alternative writ is granted to a muni- cipal corporation, commanding the corporate authorities to restore an officer whom they have removed, it is not a sufficient return to allege generally, that the relator has obstinately and voluntarily refused obedience to the orders and regulations made by the municipal authorities, contrary to the duty of his office and to his ofllcial oath. Such a return will be considered as 'too- general in its terms to constitute a justification for the removal, and the particular regulations which have been violated should be set forth. ^ And upon similar reasoning, a return of removal for neglect of duty is bad, which fails to set forth the particular instances of neglect relied upon.^ So ' Com. Dig. tit. Mandamus, D. 3 ; ' King v. Mayor & Burgesses of Bac. Abr. tit. Mandamus, I ; Rex v. Doncaster, Ld. Raym. 1565. Penrice, Stra. 1235. " Bac. Abr. tit. Mandamus, I. CHAP. VII.] OF THE PLEADIWCtS. 335 upon mandamus to compel the election of a corporate officer, the return should either deny the right of election mentioned in the alternative writ, or should show an election in accord- ance therewith, and a return setting up a diiferent right, under which it is alleged the election was held, is insufficient. > § 408. Another important principle of pleading, applica- ble in testing the sufficiency of a return by way of traverse to the -alternative writ, is, that mere conclusions of law, resulting from statements of fact in the alternative mandamus, can not be traversed. 2 Indeed, the principle as thus stated is but the application of the common law doctrine with respect to trav- erses generally, that they must be taken upon matters of fact, and not of law. The reason for the rule is found in the fact that a traverse of the law contained in the preceding pleading, constitutes, in eifect, an exception to the sufficiency of that pleading in point of law, and is, therefore, properly within the scope of a demurrer, rather than of a traverse.^ The rule under consideration has been frequently applied in cases of mandamus to municipal corporations. And where, on pro- ceedings to compel municipal authorities to certify the election of an officer, the alternative writ set forth in detail all the proceedings of the election, and concluded with an allegation that, by reason of the premises, the relator was elected to the office, by a majority of the persons present who had a legal risrht to vote at the election, a return that the relator was not elected to the office, was held bad, as being merely matter of consequence or conclusion, and not properly subject to traverse.* § 469. Again, it is to be observed that the courts will themselves take notice of siich propositions of law as neces- sarily grow out of the facts alleged in the return, and since matter of law is not ordinarily traversable in pleadings, it need not be alleged in the return. The principle as here stated, is > Rex v. Corporation of Maiden, Doug. 149. Ld. Raym. 481. » Steph. PI. 191. 2 King -!). Mayor of York, 5 T. R. « King i). Mayor of York, 5 T. R. 66. See also Rex v. Liverpool, Burr. 66. 733 ; Rex «. Mayor of Lyme Regis, 336 MANDAMUS. [PAET well illustrated in the case of mandamus to municipal corpora- tions to restore officers who have been removed. And where the law is regarded as clearly settled, that the power of amo- tion rests in the corporation at large, as a necessary incident to its existence, it is unnecessary to allege in the return the existence of such power, since it is purely a matter of law and hence not traversable.' § 470. It has been laid down as a test, in considering the sufficiency of a return by way of traverse, to determine whether, if the supposal of the writ be true and if it be sufficiently averred, an action for a false return could be maintained against the respondent. Or, in other words, if the facts averred in the return may, on a strict construction, be true, consistently with ' King V. Mayor of Lyme Regis, Doug. 149. "Tlie only question," says Lord Mansfibld," is whetlier,taking tlie law as clearly established, that the power of amotion is incident to a corporation, this would have been a sufficient return before the statute of Queen Anne, for I take it to be settled, that the same certainty is required now, as before that statute, though I think at first it might have been otherwise determined, because the reason was not the same. The great objection made to this return is, that the defendants have not set out, that the body at large has the power. They have set out the charter, and we must take it to be as stated, and there is no special power thereby given, either to the whole body, or any select part. In such a case, the charter making them a corporation, the law implies the right to remove to be in the whole body. The charter leaves it to the rule of law. It is said, there may be some other charter or by- law to the contrary. But is it neces- sary to state every possible negative, as that there is no other charter, by- law, etc.? I think it is not. If there were another charter or by- law restraining the power, and that were not set out, can there be a doubt but an action would lie? That would be misleading the court. Wherever there is a suppression of truth, and the party is thereby in- jured, he may maintain an action." BnLLER, J. : " Before the oases of Lord Bruce and Richardson, it was thought necessary to state the power to be in the corporation at large, because it was not then considered as incident to them. It is one of the first principles of pleading, that you have only occasion to state facts, which must be done for the purpose of informing the court, whose duty it is to declare the law arising upon those facts, and to ap- prise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it. It is now settled to be matter of law that, prima facie, the power of amotion is in the body at large. Being matter of law, it is not traversable." CHAP. VII.J OF THE PLEADIITGS. 337 the truth of the facts alleged in the writ, the return has been held vicious. 1 § 471. The court of kings bench still adheres to the earlier decisions, to the extent of exacting a considerable degree of particularity in the return, and while it is conceded that the mandatory part of the writ, requiring the performance of the duty which it is sought to coerce, may be in more general terms, it is held that the return should be very minute and par- ticular, in showing why the respondent has not done that which he was commanded to do.^ Both in England and in this country, however, the rigor of the ancient rule, as to the degree of certainty required, has been somewhat relaxed, and it is now the generally received doctrine that certainty to a certain intent in general is sufficient; that is, such a degree of certainty as upon a fair and reasonable construction may be called certain, without resorting to possible facts which do not appear.^ And it has been held that the same degree of certainty required in declarations and other pleadings at law is sufficient.* § 472. No principle of the law of mandamus is better estab- lished than that an argumentative return, like any other argu- ' HarwoodB. Marshall, 10 Md. 451. as in counts, replications, etc., and ' Queen «. Southampton, 1 B. & S. so in indictments ; 3. To a certain 5, opinion of Cromptok, J. intent in every particular, which is ° Per BuLLER, J. in King v. Mayor necessary in estoppels. The second of Lyme Regis, Doug. 149 ; Common- of those sorts is all that is requisite wealth ij. Commissioners of AUe- here, and I take it to mean what, gheny, 37 Pa. St. 277 ; Society «.Com- upon a fair and reasonable construc- monwealth, 52 Pa St. 125. In King tion, may be called certain, without V. Mayor of Lyme Regis, the rule recurring to possible facts, which as to the degree of certainty required do not appear. * * If the return in the return, is stated by Btjllbr, be certain on the face of it, that is J., as follows : " I agree that, in sulHcient, and the court can not in- these returns, the same certainty is tend facts inconsistent with it, for required as in indictments, or re- the purpose of making it bad. * * turns to writs of habeas corpus. Lord If presumptions were to be allowed. Coke has distinguished certainty in certainty in every particular would pleading into three sorts: 1. Cer- be necessary, and no man could tainty to a common intent, which is draw a valid and sufficient return." sufficient in a plea in bar; 3. Cer- •■ Brosius v. Renter, 1 Har. & J tainty to a certain intent in general, 551. 338 MANDAMTJS. [PABT I. mentative pleading, is bad. The facts relied upon slioTild be set forth clearly and positively, and not by way of argument or inference. In other words, facts should be stated and not mere conclusions or inferences from facts, since a defective or incom- plete statement of facts will not be aided or supplied, either by intendment or inference, i ISTor will the necessary facts, nol stated, be inferred or intended from the facts actually set forth. ^ And a return is faulty which states mere conclusions of law. without stating the facts, so that the court may judge of their sufficiency.* And where the return alleges byway of defense the pendency of other proceedings relating to the same subject matter, and in the same court, the allegations should be so clear and particular that the relator may reply thereto, and the court may determine whether such other proceedings are legal and sufficient.* As an illustration of the rule that an argumen- tative return is bad, where the writ issued to the mayor of a municipal corporation, commanding him to swear in a town clerk, a return that upon an election the relator had seventeen votes, and another person eighteen, and that the other person had been sworn, was held bad. '' Indeed, the court of kings bench has always insisted upon a strict application of the rule as here stated. And upon mandamus to correct an improper amotion from a municipal office, the return should set out with pre- cision all the facts necessary to show that the relator was removed in a legal and proper manner, and for a legal cause. It is not sufficient to allege these matters merely as conclusions of law, but the facts on which such conclusions are to be founded should be alleged, so that the court may itself deter- mine, as well upon the cause of amotion, as the propriety and regularity of the proceedings.^ But it is sufficient that the ' Brosius 11. Reuter, 1 Har. & J ' Harwood«. Marsliall, lOMcl.451. 551 ; Commonwealth v. Commis- ■* State «. Jones, 10 Iowa, 65. sioners of Allegheny, 37 Pa. St. 377 ; ' Queen i). Mayor of Hereford, 6 Society «. Commonwealth, 53 Pa. Mod. Rep. 309. St. 135 ; Queen v. Mayor of Here- ' See Rex -o. Liverpool, Burr. 733. ford, 6 Mod. Rep. 309; Harwood v. See further, upon the same subject, Marshall, 10 Md. 451; People «. Society b. Commonwealth, 53 Pa. St, Ohio Grove Town, 51 111. 195. 135 ; Commonwealth v. The Ger ^ Brosius 11. Reuter, supra. man Society, 15 Pa. St. 351. CHAP. VII.] OP THE PLEADINGS. 339 traverse in the return be as particular as the suggestion in the writ which is traversed, and where the return deiiies the title shown in the writ, in terms not more general than those in which the title is asserted, it is a sufficient return and will be sustained on demurrer.* § 473. We have, thus far, considered the rules applicable to a return by way of direct traverse of the matters alleged in the alternative mandamus. It more frequently happens, however, that the respondent, instead of traversing the supposal or mat- ter of inducement alleged in the alternative writ, is desirous of stating matter which will excuse or justify his refusal to com- ply with the mandate of the court. In such cases, the return is in the nature of a plea in confession and avoidance, and resort may be had to the general common law rules applicable to pleas of this nature, in testing the sufficiency of the return. Where this species of return is adopted, the respondent should state in direct and positive terms the matters of excuse or justification relied on, and if he fails to meet this requirement, and presents a merely argumentative return, it may be quashed for insufficiency, and an alias mandamus may issue, in order that the suggestion or supposal of the writ may be fully and plainly answered. ^ And in an early case in the kings bench, where an alternative mandamus had been granted to justices of the peace, to compel them to execute the statute of forcible entry, a return by the justices that they had procured the wrong doers to be indicted for a forcible entry, was held insuf- ficient, since it constituted no answer to the mandate of the court, and the respondents were ruled to make a further retarn.^ § 474. It is also incumbent upon the respondent, who seeks to excuse or justify his non -execution of the writ, by a return in the nature of a plea of confession and avoidance, to state the facts relied upon with such precision and certainty, that the court may be fully advised of all the particulars necessary to enable it to pass judgment upon the sufficiency of the return. And upon mandamus to restore members of a common council ' Queen t>. Mayor of Dover, 11 Ad. ' Queen «. Kaines, 3 Salk. 233. & E. N. S. 360, affirmed on error, » King v. Long, Barn. K. B. 83. lb. 378. 340 MAH-DAMUS. [PAICT I. who had been removed from their office, a return that the members of the council were chosen yearly, and that before the coming of the writ they were chosen and continued for a year, at the end of which time they were duly removed from their office by the election of others, was held bad for uncertainty, since it should have shown the precise time of the election. i So upon mandamus to restore the relator to the office of capital burgess in a municipal corporation or borough, from which he had been removed, a return alleging as the ground of relator's amotion his non-attendance at a meeting, to which he was called for the election of a capital burgess, with an aver ment of the right of such election in the capital burgesses, being the common council, was held bad, since it did not allege with sufficient certainty that the common council was com- posed of all the capital burgesses, and it would be difficult to maintain an action thereon, as for a false return. ^ § 475. The alternative writ of mandamus, being itself in the nature of a rule to show cause, any cause which exists at the time fixed for making return or showing cause, is available as an answer to the mandate of the writ.^ And this principle holds good, even though the issuing and serving of the alter- native writ be regarded as the commencement of an action, and any fact which occurs after service of the alternative man- damus, if of such a nature as to constitute a sufficient answer to the mandate of the court, may be set forth in the return by way of defense. Thus, to a mandamus directing a commis- sioner of highways to open a certain road, it is a sufficient return that since service of the writ the road has been discon- tinued, by due proceedings at law for that purpose.* § 476. It has already been shown, that it is competent for the respondent in his return, to allege as many distinct and several matters as he may deem necessary for his defense, pro- vided such matters are not inconsistent with or repugnant to each other. ^ In the application of this principle, questions 1 King V. City of Cheater, 5 Mod. 10. ways, 1 N. T. Sup. Ct. Rep. 193. ' King i>. Mayor of Lyme Regis, * Id. Doug. 177. 6 gee g 463, ante. See also "Wright ' People V. Commissioner of High- v. Fawcett, Burr. 2041. CHAP. VII.] OF THE PLEADINGS. 341 of mucli nicety have occurred in determining what matters might properly be included in a return, without repugnance or inconsistency. Thus, upon mandamus to the mayor and aldermen of a city, to admit and swear one as an alderman, a return alleging that the relator was not duly elected, and that a tribunal authorized to decide upon his election had adjudged it to be void, was held to be a good return, since the matters alleged, although distinct from, were perfectly consistent with each other, ^ So where the mandate of the writ was to admit and swear the relator to a certain office, the writ alleging that he was duly elected, and that he thereby became entitled to be sworn, a return alleging that he was not duly elected, and that he was not entitled to be sworn in, because he had not been previously approved of by the proper authority, was held good, since, there being a duplicity in the writ, there must necessarily be a duplicity in the return. ^ Again, where the alternative writ was granted to restore one to the office of sex- ton of a parish, and it was returned that he was not duly elected according to the ancient custom, and further, that there was a custom for the inhabitants to remove at pleasure, pursuant to which they had removed the relator, the court held the two matters of defense to be consistent, and sustained the return. 3 So where it was returned to a mandamus to admit one to the office of common councilman, that he M'as ineligible ' Rex V. Mayor and Aldermen of removed him.' Now where is the London, 9 B. & C. 1. repugnancy of this return t If he ' Wright V. Fawcett, Burr. 2041. was not duly elected, he certainly ' Rex. V. Churchwardens of Taun- has no right to be restored. But ton St. James, Cowp. 413. Lord whether duly elected or not, they Mansfield said: "I see no incon- show a right by custom to remove sistency or repugnancy at all. They him at pleasure, and that they have return that Lewis Cogan was not done so. There is no repugnancy duly elected. But as it was clear in saying that he was not duly that he had been in possession of elected, but that, being in fact the office, whether duly elected or elected, they had, according to an not, the return goes on and states 'a ancient custom, removed him from custom in the parish to remove the office. In either case, they were their sexton at pleasure; and that equally entitled to exercise that in pursuance of such custom, and right. Therefore, let the return be agreeably thereto, they had actually allowed." 3i2 MANDAMXJS. [PAKT I. to the office, and further, that he was not duly elected, as hj the writ supposed, the allegations were held not inconsistent, i § 477. If the several matters of defense, relied upon by the respondent in his return, are adjudged to be inconsistent or repugnant, the court will quash the entire return and award a peremptory mandamus.^ Thus, where a mandamus to com- pel municipal authorities to certify the election of relator as municipal recorder, alleged that the authorities, being duly assembled on a given day, elected the relator, and the return denied that they were duly assembled on that day for the pur- pose of an election, and afterwards alleged that they were assembled that day and elected an officer, the matters alleged were held to be so inconsistent with each other as to warrant the court in quashing the entire return. ^ So to a mandamus to admit one to the position of alderman, a return alleging, among other things, that the relator was elected by the ward, bxit refused by the mayor and aldermen, and alleging further, that he was not elected, was held bad because of repugnancy, because the court was unable to discern which was to be believed, and therefore a peremptory mandamus was granted.* So, too, where the writ commanded the mayor and burgesses of a city to restore a burgess to his position, and the return set forth, first, that the relator was elected and qualilied, second, that he was removed for non-attendance, and third, that his election was null and void, the return was adjudged bad, by reason of the repugnant and contradictory matter alleged therein." § 478. While, as we have already seen, great strictness was required at common law as to the certainty requisite in a return, yet it was always sufficient if the return were certain upon its face, and the court would not intend facts inconsis- ' King V. Mayor of Cambridge, 3 or of Pomfret, 10 Mod. Rep. 107. T. R. 456. ' King «. Mayor of York, supra. ^ King V. Mayor of York, 5 T. R. ' Regina o. Mayor & Aldermen of 66 ; opinion of Bullbr, J., in Rex Norwich, 3 Salk. 436. V. Mayor of Cambridge, 2 T. R. 456 ; ' Queen «. Mayor of Pomfret, 10 Regina «. Mayor & Aldermen of Mod. 107. Norwick, 2 Salk. 436 ; Queen c.May- CHAP. VII.J OF THE PLEADINGS. 343 tent with it, for tiae purpose of making it bad.' In the earlier English cases, frequent decisions are to be found where returns were held bad, because of that description of uncertainty known as a negative pregnant, that is, such a form of negative assertion as necessarily implied or carried with it an affirma- tive. For example, upon mandamus to restore one to the office of town clerk, a return non fuit debito admissus was held bad, the proper return in such case being non fuit admis- sus generally. And in support of the distinction the court relied upon the fact, that, upon the return as made, the party aggrieved would be deprived of his action on the case for a false return. 2 So a return of non fuit debito modo electus was adjudged bad, the proper return being non fuit electus.'^ So, too, upon mandamus to a municipal corporation to restore a recorder, the writ alleging that the corporators, being duly assembled, proceeded to the election of a recorder, a return that they were not duly assembled to proceed to the election of a recorder, was held bad as being a negative pregnant, since such a return might mean that they were duly assembled for some purpose, though not for the purpose of electing a recorder.'' It is to be observed generally, however, with refer- ence to the rule against a negative pregnant, that in modern times it has received no very strict construction, and many cases have occurred where the courts, relying upon various grounds of distinction from the general rule, have held that form of pleading to be unobjectionable. ^ § 479. In considering the law of mandamus as applicable to public officers entrusted with the performance of duties of a public nature, we have repeatedly seen, throughout the pre- ceding pages, that as to all matters entrusted to or resting in the discretion of such officers, mandamus is never granted, where the effect of the writ would be to interfere with the exercise of such official discretion. It is important, however, ■ Per BuLLBR, J., in King 4). Mayor King v. City of Chester, 5 Mod Rep. of Lyme Kegis, Doug. 149. 10. ■^ Hereford's case, Sid. 209. ' King b. Mayor of Torls, 5 T. R. ' Cripp's case, reported with Here- 66. ford's case, Sid. 309, 310. And see ' Steph. PI. 383. 344 MANDAMUS. [pAKT I. to observe, that, notwithstanding this well established prin- ciple, where officers are entrusted by law with the performance of certain duties of a public nature, and are authorized and required to do such matters anc" things in carrying out their duties as they may from time to time deem necessary, upon mandamus to compel their action, they can not by way of return, merely rely upon their discretionary powers and allege that they have done what they deemed necessary, without specifying what they have done. Thus, where commissioners for the improvement of a river, were authorized and required by law to construct such works and to do such things in con- nection therewith as should " from time to time be deemed necessary, proper, or expedient," upon mandamus to compel the commissioners to put the banks of the river in a state of stability and security, a return that they had done such things as were " from time to time deemed necessary, proper, or expedient," following the words of the statute, was held unintelligible and insufficient, since it failed to show that any- thing had in fact been done, and the 'allegations of the return might have been strictly true, and yet nothing whatever have been done by the commissioners.^ ' King v. The Ouze Bank Com- necessary.' A party is not to return missioners, 3 Ad. & E. 544. " If the a nonsensical answer to the king's return," says Lord Denmak, " had writ of mandamus, and leave the stated that the commissioners court to interpret it. (His lordship thought such and such things ne- then stated, upon the construction cessary, and that thej- had done of the act, he considered the other them, that would have been a suffi- part of the return bad.) The return cient answer. It might have been seems to me bad in all its parts, and more satisfactory if rthey had shown a peremptory mandamus must go." what they had done, and what they Littledale, J. " As to the first had spent ; but I am disposed to part of the return, it was open to think that it would have been the commissioners to return in two enough if they had said that they ways. First, they might have re- had exercised their judgment, and turned, in so many words, that they done all they deemed necessary. had done such works as were neoes- But they have used unintelligible sary, and that the banks were put language, making an assertion in into a state of permanent stability, the alternative. No meaning can This they have not returned, and be given to the words ' as should be perhaps, in the time which has or were from time to time deemed elapsed, they have had no oppor CHAP, VII.J OP THE PLEADIW6S. 345 § 480. At common law, a return to a mandamus directed to the officers of a municipal corporation, as to the mayor and other officers, was good, though not signed by the mayor nor attested by the corporate seal, since, if the return were false, an action might be brought against the whole body politic for a false return, and against any particular person for procuring such return to be made.i Eut where the writ is directed to an entire municipal corporation, it should be answered by a majority of the officers, and it is, therefore, insufficient for the mayor to make return without the consent of such majority. ^ In such case, however, the court will not, upon affidavits, examine whether the return of the mayor was actually made with the consent of the requisite majority, but will accept the return and leave the parties aggrieved to their remedy against the mayor, if the return be falsified. ^ And where the alter- tunity of doing sucli works. Sec- ondly, they might have said, 'We have from time to time executed divers matters and things for the purpose of putting the banks into perfect security, and are proceeding so to do.' This tliey do not return. But they only return that they have done all such things ' as should be, or were from time to time deemed necessary,' in the words of the act, without saying that they have done anything. It seems to me that this is not suflicient. As to the disjunc- tive allegation (though I do not say that 'or' may not sometimes be cop- ulative,) it seems to me that it is bad here." Pattbson, J. " I am of the same opinion. Possibly it might have been enough if the com- missioners had returned that they had from time to time done all things necessary for putting the banks in a permanent state of re- pair; but I, for one, should have thought that not sufficient. The commissioners are appointed, and are entrusted with mone^, for a par- ticular purpose;' and I think they should show that they have ex- pended a part of the money in the works, and are proceeding with them. The court does not, by the word 'forthwith,' mean to command them to do everything instantly; but to set about the works directly, and do what they can. If they had done all they could, they should have said so ; but tliis they do not say." Williams, J. "I am entirely of the same opinion. What does the return mean? How much, or how little, has been done? To whose satisfaction ? The allegation here made might have been satis- fied if nothing had been done. Per- emptory mandamus awarded." ■ Lydston 11. Mayor of Exeter, 12 Mod. Rep. 126. ' King V. Borough of Abingdon, 12 Mod. Bep. 308. ^ Rex 0. Mayor of Abingdon, 2 Balk. 431. 346 ' MANDAMUS. [PAKT I. native writ is directed against a board of municipal officers, sucli as county supervisors, they should make return in their corporate and not in their individual capacity. In such case, the return of a single member of the board, or of several members, in his or their individual capacity, can with no more propriety be considered the answer of the board, than could the return of a like number of private citizens, i And where one return is filed purporting to be that of the board itself, and another is filed purporting to be that of individual mem- bers of the board, the latter will be stricken from the files. ^ So where the writ issues to several officers of a county as a body, the return should be made by them in the same capacity, and if, instead of this, different returns are presented by different members of the body, which are inconsistent with and repugnant to each other, the proper course is to direct such returns to be withdrawn from the files, and to require th j officers to" make return as a body.^ In general, all the p.j-tiuj to whom the alternative writ is directed should make return, and where the writ ran to the aldermen, bailiffs and common- alty of a municipal corporation, but the return was by the bailiffs and capital burgesses, without the commonalty, it was adjudged bad.* But where an alternative mandamus is awai'ded against a board of municipal officers whose term has expired, commanding the performance of an official duty, and the writ is directed to them by name, it is sufficient that the return be made by them as the late officers, showing that they had, while in office, performed the duty required. ^ § 481. Upon mandamus to restore one to an office in a municipal corporation, the alternative writ suggesting an amo- tion by the corporators, or by some of them, a return that the relator was never amoved by them, or any of them, is sufficient, even though he may have been removed by their predecessors, since the present officers are not obliged to show this fact.' It ' People 11. Supervisors of San Ian, 8 Jones, 174. Francisco, 27 Cal. 655. ' King v. The Baily, 1 Keb. 33. = Id. ' Stale 1]. Griscom, 3 Halst. 186. ' McCoy V. Justices of Harnett " King v. Town of Colchester, 2 Co. 4 Jones, 180 ; State ii. McMil- Keb. 188. OHAP. VII.] OP THE PLEADINGS. 347 is also a sufficient return to the writ commanding the restora- tion of relator to a corporate office, that he has been restored, even though it be shown to the court that he has been again removed for misdemeanors in office. ' But it is not a good return to such writ, that the relator consented to be turned out of the office.2 And where the writ issues to restore one to a corporate office, from M'hicli he claims to have been wrongfully removed, a return that he was not duly elected, admitted, and sworn, is not sufficient, since the material suggestion in the writ is the removal, and the return should answer, not the words, but the material part of the writ.^ And in cases of ' Regina v. Ipswich Corporation, Ld. Raym. 1283. ' Regina v. Lane, Ld. Raym. 1304. " King s. Mayor of Lyme Regis, Doug. 79. And see King v. Har- wood, 8 Mod. Rep. 380. But see Rex V. Lambert, 12 Mod. Rep. 3; Queen v. Twitty, 7 Mod. Rep. 83. In King «. Mayor of Lyme Regis, Doug. 79, Lord Mansfibld very clearly lays down the requisites of the return in such cases. This was a mandamus to restore the relator, Mitchell, to the office of capital burgess of Lyme Regis. The wi'it alleged that Mitchell was duly elect ed, admitted and sworn a capital burgess of the borough, and as such had always behaved and conducted himself well, but that the mayor and burgesses, without any reasona- ble cause, liad unjustly removed him from his office. To tliis re- spondents returned, that the relator " was not duly elected, admitted and sworn a capital burgess of the said borough, and, therefore, they could not restore him, or cause him to be restored." Lord Mahsfibld says: " The question is, whether this is a sufficient return. The grievance complained of by the person apply- ing for tlie writ is. that having been duly elected, admitted and sworn, he has been removed by the corpo- ration; and they are to show a just cause of removal. It is admitted that they could not remove for want of an original title; but it is con- tended that they have sufficiently answered the suggestions of the writ, and that issue may be taken, or an action brought, on the return. Upon full consideration, we are all of opinion that the return must an- swer, not the words, but the materi- ality of the writ, and nothing shows this more than the nicety in the cases as to elected and duly elected. In the case of Lynne, the whole turned upon the question, whether it was a return to the material part ? A return which seems to be guarded, and not to deny the substance, is bad, although I rather think nothing is an election but a due election. Here the material sug- gestion Is the removal. They were not to judge of the title. The re- turn is in the conjunctive — not duly elected, admitted and sworn, — and, therefore, fallacious. If the truth would have warranted it, and they had returned not duly elected, 348 MANDAMUS. [PAKT I. mandamus to compel the restoration of persons who have been wrongfully removed from the enjoyment of their franchise as members of an incorporated association, the return should show all the facts necessary to the conviction and removal, both as regards the cause of disfranchisement and the mode of proceedings. 1 § 482. The fact that the respondent in the proceedings for mandamus has exhibited a bill in equity against the relator, praying an injunction to restrain further proceedings upon the application for the mandamus, which injunction has been refused, can not be taken as a return to the writ, or as suffi- cient excuse for not making return.^ § 483. Where the alternative writ has been granted to compel the swearing in of two persons, claiming to have been elected as church-wardens, a return that they were not duly elected is bad, unless it shows that neither of them was elected, since the writ should be complied with as far as possible, and if either of the two were duly elected, he should be sworn. ^ But where the writ issues to admit one to the office of church- warden, and contains a recital that he was duly elected thereto, a return that he was not duly elected is a good return, since it is competent for the respondent to deny any material alliga- tion in the writ, and the relator having stated the foutd-Cition of his right in the alternative mandamus, this may be denied in the return.* § 484. It is always a sufficient return to a mandamus to an officer, entrusted with the drawing of warrants or payment of claims upon the public treasury for services rendered, that there is no money in the treasury belonging to the fund on which the warrant is to be drawn, or out of which payment is to be made, since the courts will not command the doing of or admitted, or sworn, it might have ' Neuse River Navigation Co. » been good. We are all of opinion, Commissioners of New-Berne, f that the return is insufficient, and, Jones, 204. therefore, a peremptory mandamus ' Regina ». Guise, Ld. Raym. 1008 must issue.'' But see Regina «.Twitty, 2 Salk. 434. ' Society v. Commonwealth, 53 * King v. Williams, 8 Barn. & Pa. St. 125 ; Commonwealth d. The Cress. 681. German Society, 15 Pa. St. 351. CHAP. VII.] OF THE PLEADINGS. 349 an act which is beyond the power of the respondent.' JSTor is such officer required by any rule of pleading to go further in his return, and show why such a state of things exists. ^ But where the writ directs a town officer to levy a tax, to provide funds for the payment of an indebtedness against the town, the fact that there is no money in the treasury constitutes no return to the writ, since its very object is to procure money.* § 485. Where the writ issues to a board of public officers, such as county commissioners, in case of failure to make return, the record of the official proceedings of such board, being produced to the court, may be received as a return and may be acted on accordingly. It would seem, therefore, in such case, that no actual and formal return need be made, the court being otherwise informed of the facts necessary for its action.* § 486. In case an alius and pluries mandamus have issued, the return should, in strictness, be to the pluries, since the respondent is in contempt for disobeying the two former writs; yet if any damage has resulted therefrom, a return to the original writ may be allowed. ^ § 487. It would seem to be unnecessary, in practice, that the return should be verified by the oath of the respondent, since it is taken as true for the purposes of the case, in the absence of any statute allowing it to be traversed, and the party injured must seek his remedy by an action for a false retui-n.* ' Dodd I). Miller, 14 Ind. 433 ; * Street v. County Commissioners Hayne ■». Hood, 1 Ricli. N. S. 16; of Gallatin, Breese, Beeoher's edi- Mitcliell v. Speer, 39 Geo. 56. tion, 50. « Dodd D. Miller, supra. " Anon. 11 Mod. Rep. 265. ' Huntington v. Smith, 25 Ind. ' Commissioners Court «. Tarver, 486. 31 Ala. 661. 350 MAlSTDAMirS. [PAET III. Pleadings Subsequent to the Eetuen. § 488. Defective return, how taken advantage of; motion to quash ; demurrer. 489. When whole return quashed. 490. Demurrer to return not allowed at common law ; nor under statute of Anne ; the concilium. 491. Statute of Victoria authorizing demurrer to return. 493. Functions of a demurrer to the return. 493. Demurrer to return carried back to first defective pleading. 494. Demurrer must he interposed in first instance, 495. Rule where return is good in part and had in part ; demurrer and plea not allowed at same time. 496. Pleadings which may he interposed to the return ; effect of pleading to return. 497. No reply allowed to return under code of procedure. § 488. Two available methods are now generally recognized, by which the prosecutor or relator may take advantage of a defective return, and may test its sufficiency in point of law: the one by motion to quash," the other by demurrer. The for- mer method is usually resorted to only when the return is manifestly bad, by reason of some defect ajDparent upon its face, or by reason of its containing several matters of defense which are inconsistent with or repugnant to each other. ^ The latter method is adopted where the defects are less obvious, and where it is desired to present the legal objections to the return by a more formal argument.^ The doctrine of the kings bench would seem to be, that it is discretionary with the court, either to quash the return at once on motion for that purpose, or to have the cause set down for argument.^ And while the court has the undoubted right to quash the entire return, if the several matters alleged are inconsistent or repugnant, yet ' See King v. Mayor of York, 5 T. ^ See Silverthorne i>. Warren R. R. 66 ; Rex «. Mayor of Cambridge, Co. 4 Vroom, 173. 2 T. R. 456 ; Regina v. Mayor & " Per Dbnman, C. J., in King ». Aldermen of Norwich, 2 Salk. 436 ; St. Katherine Dock Company, 4 Queen i). Mayor of Pomfret, 10 Mod. Barn. & Ad. 860. Rep. 107. CHAP. Til.] OF THE PLEADINGS. 351 if there be no inconsistency in the different parts of the return, the court may, in its discretion, quash some portions of it, where it is complicated, and allow the rest to stand for trial.^ Where, however, important questions of law are presented by the return, requiring judicial investigation for their correct solution, the courts will hesitate to dispose of such questions upon a motion to quash the return, and in such case, it is regarded as the better practice to present the questions involved by demurrer to the return. ^ And where a return is presented which is issuable and triable, and is in bar of the remedy sought, it is error to sustain a motion to quash.^ § 489. It would seem, where two causes returned to a man- damus are inconsistent, that the whole must of necessity be quashed, since the court can not know which to believe, and the objection therefore goes to the whole return, the case being regarded as analogous to that of a declaration at common law, in which two inconsistent counts are joined.* Where, how- ever, the allegations of the return, to which objection is taken on the ground of inconsistency, are merely matters of surplus- age, they will not have the eifect of vitiating the return. Thus, upon mandamus to restore one to a municipal office, a return by tlie corporation that the relator had continued in office until the 25th of December, and also that he was removed on the 21st of August, was held not to be repugnant, the contradic- tion extending only to matter of surplusage, and therefore being immaterial. ^ § 490. At common law the prosecutor or relator in pro- ceedings in mandamus, could not test the sufficiency of the return to the alternative writ by way of demurrer. ISTor was this right given by the statute of Anne,^ which, although it allowed the relator to plead to or traverse the return, and the respondent to take issue or demur to such plea or traverse, was ' Bex V. Mayor of Cambridge, 3 * See opinion of Buller, J., in T. R. 456. Eex v. Mayor of Cambridge, 2 T. R. ' Silverthome v. Warren R. Co. 4 456. Vroom, 173. " Lord Hawley's case, Vent. 143. ' Scliool Inspectors v. Tlie People, « 9 Anne, ch. 20. See Appendix A. 30 111. 531. 352 MANDAMUS. [pAET I. silent as to the right of demurrer on the part of the relator. This deficiency, or want of any procedure for testing the legal- ity and sufficiency of the return, other than by motion to quash, seems to have given rise to the practice of allowing the relator, where he desired to dispute the suificiency of the return, to move for a concilium, and argue the validity of the return in point of law. The motion for the concilium was regarded as in the nature of a demurrer, and the party making the motion occupied substantially the same position as a defendant in a personal action, who demurred to a declaration. Indeed, the concilium would seem to have been merely a device resorted to in order to supply the place of a demurrer, its functions and eifect being substantially the same.^ Such was the condi- tion of the pleadings at common law, as well as under the statute of Anne, the anomaly being presented of the respon- dent, under that statute, having the right of demurrer, while the relator was denied that right. § 491. The method of procedure by the motion for a con- cilium, being attended with many inconveniences, and it being deemed desirable to give the relator the right to test the sufii- ciency of the return by demurrer, so that the decision of the court below as to such sufBciency, might be reviewed on writ of error, a statute was finally enacted for the purpose of obviating the inconveniences arising from the former system of pleading.^ This statute, after reciting the statute of Anne,-"* and the statute of William lY.* extending the provisions of the former act to all eases of mandamus, neither of which statutes, nor any other act, gave the relator the right to demur to the return, enacted that in all cases, where the person pros- ecuting any writ of mandamus desired to object to the validity of the return, he should do so by way of demurrer, according to the practice and usage in personal actions, and that there- upon the courts should adjudge, either that the return was valid in law, or that it was not valid, or that the writ itself was not ' King V. Mayor & Aldermen of lish Statutes at Large, 436. See London, 3 Barn. & Ad. 355. See Appendix B. also, King v. Oundle, 1 Ad. & B. 388. = 9 Anne, ch. 30. See Appendix A. " 6 & 7 Victoria, oh. Ixvii, 83 Eng- • 1 William IV. ch. 31. CHAP. VI I. J or THE PLEADINGS. 353 valid in law. If the writ was held to be valid, and the return invalid, the court was required by its judgment to award that a peremptory mandamus should issue, and upon such judgment any party to the record, deeming himself aggrieved thereby, might sue out and prosecute a writ of error, as in ordinary personal actions, i § 492. A demurrer to the return questions its sufficiency as a defense to the prayer for the relief sought. ^ Its purpose being to test the return as an answer to the allegations of the writ, it is at once obvious that this object can be attained only by assuming all the material allegations of the writ to be true which are neither denied, nor confessed and avoided. ^ And all matters which are sufficiently pleaded in the return, are, for the purposes of the demurrer, admitted to be true.* It follows, also, that where the return to the writ is in itself nothing more than a demurrer, and raises no questions of fact, but merely presents questions of law, no demurrer thereto is necessary.^ Thus, where the return traverses no fact alleged in the writ, and confesses none except the refusal of the ' See Appendix B. '^ People v. Ohio Grove Town, 51 111. 195. ' State D. Lean, 9 "Wis. 379. "The function of the return is not simply to show what would amount to a prima facie right in the respondent, in the absence of any allegation to the contrary; but it is to show a right to refuse obedience to the writ, in view of the allegations it contains. And if it does not do this it is demurrable. And the very object of a demurrer to the return is to test its sufficiency as an answer to the allegations of the writ ; and it is obvious that this can only be done by assuming all the material allegations of the writ not denied, nor confessed and avoided, to be true. The plea or answer which the plaintiff may put in to the return, is 23 designed to enable him to traverse or confess and avoid it, when it in the first instance sufficiently an- swers the writ ; and not to repeat material allegations previously made, which had been left entirely unanswered in order to obtain the benefit of them. "We think, there- fore, that the demurrer to the return raises the question of its sufficiency, and of the sufficiency of the rela^ tion, and that in disposing of it, not only the return, but every material allegation in the relation not denied nor confessed and avoided, is to be taken as true." Paine, J., in State «. Lean. * Commonwealth «. Commission- ers of Allegheny, 37 Pa. St. 277; Same v. Same, lb. 337. « People «. Salomon, 46 111. 336 j People v. Miner, lb. 387. 354 MAWDAMTJS. [PAET I. respondent to perform the act required, and alleges in justifica- tion of his refusal the unconstitutionality of the law requiring its performance, the whole question involved is fully presented, either with or without a demurrer to the return, i And in such case, the court, upon being satisfied of the constitution- ality of the law, will grant the peremptory mandamus. ^ § 493. The familiar rule of pleading, that a demurrer reaches back to the first fault committed by either party, applies with especial force in cases of mandamus. On demurrer to the return, it is therefore competent for the respondent to avail himself of any material defect in the alternative writ, the demurrer being carried back to the first defective pleading.* And although a return to a mandamus which merely sets up ' People «. Salomon, 46 111. 336. "Id. » People V. Ransom, 2 N. T. 490; Commercial Bank v. Canal Commis- sioners, 10 Wend. 36 ; State v. McAr- tliur, 23Wis.437. Commercial Bank V. Canal Commissioners, 10 Wend. 26, "was an application for a man- damus to compel the respondents, a state board of canal commissioners, to pay to the relator a sum of money claimed to be due. Judgment was rendered in favor of the respond- ents, upon demurrer to their return, and the relator sued out a writ of error. The doctrine of the text is very clearly set forth in the opinion of the court of errors by Chancellor Walwokth, as follows: "The re- turn to the alternative mandamus in this case is objectionable, in form at least, in not charging facts positively and distinctly; in this respect it is very informal and de- fective ; instead of stating facts, the return merely sets out or refers to matters of evidence from which those facts are inferred. This is contrary to every principle of good pleading, and if the writ in this case had shown a valid title in the relators, I should think the demur- rer to the return well taken. But here another well settled principle of pleading applies to the case under consideration. Although the particular plej,ding demurred to is bad, either in form or substance, yet if some previous pleading is defective in substance, judgment must be given against the party who has committed the first fault. Upon referring to the mandamus, as set out in the record, it shows no right in the relators to the money which the writ commands these defendants to pay. Perhaps it was suflScient in this case, in the writ, to refer to the order and assignment annexed to the affidavits on file to ascertain what the defendants were required to pay ; but the facts show- ing why they ought to pay that sum, should appear in the writ, clearly and distinctly; so that the facts there alleged might be admit- ted or traversed. Peats' case, 6 Mod. R. 310. 5 Burr. 3742. It may sometimes be allowable to refer to extrinsic facts to ascertain precisely CHAP. VII.J or THE PLEADINGS. 355 matters of evidence, from which facts may be inferred, is obnoxious to a demurrer, yet if the alternative vvrit is defective in substance, judgment may properly be given for respondents on demurrer to the return, the demurrer going back to the defective writ.^ So where the alternative writ is defective, in not showing that the act which it is sought to coerce is the specific duty of the ofiBcer at whose hands its performance is required, a demurrer to the return will be sustained as a demurrer to the writ itself. ^ And where the relator traverses the return to the alternative writ, and this traverse is demurred to, it is open to the respondent to rely upon any insufficiency in the writ in support of his demurrer. ^ But, after return to the writ and issxie tried thereon, the court will not quash the writ upon grounds which might have been urged against making the rule for the mandamus absolute, as that the prose- cutor had deceived the court in obtaining the writ.* § 4:94:. It is important to observe, that the relator, desiring to raise the question of the legal sufficiency of the return, should demur thereto in the first instance, since, by pleading to the return, he admits that the facts which it presents con- stitute upon their face a sufficient answer to the alternative writ. And by traversing the truth of the return, he is as completely estopped from afterward questioning its sufficiency in law, if the verdict be against him, as he would have been in an action for a false return before the statute of Anne.^ what is claimed in a suit ; but the ' Queen «. Mayor of Stamford, 6 reasons why it is claimed must Ad. & E. N. S. 433. always appear upon the record, to ° People v. Board of Metropolitan enable the court to judge of their Police, 26 N. Y. 316. In this case validity. As the mandamus was the relator, having pleaded to the defective in substance, I am satis- amended return, taking issue on all fled that judgment was properly its allegations, a verdict was found given for the defendants on the de- against him. He then applied for murrer to the return." a peremptory mandamus, non ob- ' Commercial Bank v. Canal Com- stcmie veredicto, which was granted, missioners, svj)ra. The judgment was reversed on ap- " State V. McArthur, 28 Wis. 437. peal, WsiaHT, J., holding as fol- ' Clarke v. Leicestershire & North- lows ; " There is an objection, aside amptonshire Union Canal, 6 Ad. & from the merits of the controversy, E. N. 8. 898. that I consider fatal to the judg- 356 MANDAMUS. [PAET I. § 495. If the return be bad in part and good in part, and that portion which is unobjectionable can be separated from that which is defective, a demurrer to the entire return will not be sustained.! ^ut, under a statute regulating proceedings in mandamus, which allows the relator to plead to or traverse all or any of the material facts stated in the return, both a demurrer and a plea will not be allowed at the same time. In such case, the whole return is to be considered as an entirety, like a count in a declaration. If, therefore, the facts set forth can not be traversed, the relator should demur, and he will not ment. Judgment non obstante vere- dicto has no place in the course of a mandamus procedure. "When the return of the defendants was amended or modified, it was op- tional with the relator to demur or plead to all or any of the material facts contained in it; and for this purpose time was given to him. Instead of demurring, which would have brought up the question of the legal suflSciency of the return, he pleaded to it, thereby admitting that the return upon its face, was a sufficient answer to the case made by the alternative writ. Having taken issue as to its truth, he could not subsequently question its suffi- ciency as matter of law, no more than he could in an action for a false return, before the statute, fol- lowing the statute of Anne, provided for the traverse of the truth of the return in the procedure of man- damus, instead of driving the re- lator to an independent action. He traversed the truth of the return In fact, holding the affirmative of the issue; and if a verdict had been found in his favor, he was entitled to judgment (3 R. S. 587, § 57), but if against him, the opposite conse- quence followed. When the truth of the return is traversed, the grant- ing of the peremptory mandamus is made dependent upon a verdict for him, as was the case in the action for a false return. The question of the legal sufficiency of the return in such an action could not arise, nor can it now, since the statute has allowed a traverse of the truth of the return in the direct proceeding for the mandamus. The writ of mandamus is a prerogative writ and the relator must take the benefit of it on such terms as are accordeo by the sovereign. It is not for him to say that he will question iht legal sufficiency of the return bote before and after the verdict. Bj traversing the truth of che leturn, he raises the same insuperable bai rier against subsequently question ing its sufficiency, if the verdict bu against him, as he would encounter in an action for a false return be- fore the statute. In this case the verdict was against the relator, and it seems to me to have been clear error in the court below to give judgment for a peremptory man- damus in his favor,when the verdict had gone against him." ' Queen 1). Mayor of New Windsor, 7 Ad. & E. N. S. 908. CHAP. VII.] OP THE PLEADINGS. 357 be allowed to dissect the return and plead to some portions and demur to the residue.* § 496. If the relator does not see fit to question the suffi- ciency of the return, either by motion to quash, or by demurrer, or if such motion or demurrer be interposed and overruled, it is competent for the relator, under the statute of Anne, to plead to, or traverse all or any of the material facts alleged in the return. The respondent is then at liberty to reply, take issue, or demur, as he may deem best, the pleadings being assimi- lated as nearly as possible to those in ordinary personal actions at law.^ The provisions of the statute of Anne, having been re-enacted in many of the states, and having in others been recognized by judicial decisions as of binding force, are believed to be generally applicable in this country, where not abrogated by codes of procedure, or other legislation regulating the subject. The effect of pleading to a return is to admit that it constitutes, upon its face, a sufficient answer to the case made by the alternative writ. It follows, therefore, where none of the material facts stated in the return are disproved upon the trial, that respondents are entitled to judgment. ^ § 497. Where, under the code of procedure of a state, the pleadings in mandamus are limited to the alternative writ and the answer or return thereto, no reply or pleading will be allowed beyond these, and if such pleading be filed, it may be quashed on application to the court. • In such case, the allega- tions of fact in the return, which are inconsistent with the statements of fact in the writ, will, for the purposes of the proceeding, and for forming an issue, be deemed controverted as upon a specific denial, vsdthout reply.* " Vail «. The People, 1 Wend. 38. ' State v. Union Township, 9 Ohio « See Appendix A. St. 599. ' People B. Finger, 24 Barb. 341. CHAPTEE VIII. OF THE PRACTICE IN MANDAMUS. 1 498. Practice widely divergent. 499. Application peremptory at common law; statute of Anne. ' 500. Practice at common law ; rule to show cause. 501. Common law procedure act of 1854 in England, effect of on practice. 503. The practice in this country. 503. Eule to show cause, in what states adopted. 504. Practice in Wisconsin ; rule against several respondents. 505. Mandamus to courts, rule to show cause the better practice. 506. Relator has aflSrmative on rule to show cause. 507. Verification of petition ; distinction as to private and public prose- cutors. 508. Verification by one of several joint relators ; omissions not supplied by aflSdavit on the hearing. 509. Affidavits should not be entitled. 510. Hearing on original papers and return; affidavits excluded. 511. Defect in application, should be taken advantage of in first instance. 513. Decision on application for alternative writ not subject to appeal or writ of error. 513. Wrjit only issued as a judicial act; time of return. 514. Application should not be entitled ; its contents. 515. Courts adverse to secoiM application after one refusal. 516. Time of making application. 517. Service of the writ, on whom and how made. 518. Costs, generally regulated by statute, or discretionary. 519. Amendments allowed to alternative, but not to peremptory man- damus. 530. Amendment to affidavits ; amended return. 531. Motion to quash the alternative writ, nature and efitect of. 533. Grounds of motion to quash. 533. Motion to quash, when made. 534. Application may stand in lieu of alternative writ ; eflfect in such case of motion to quash. 535. Return in nature of demurrer, efifect of quashing. 536. Form of judgment where relator fails to make out case. 537. Leave to plead over; motion for peremptory writ on pleadings; leave to file amended return. 538. Practice in federal courts. (358) CHAP. VIII.] OF THE PEACTICE. 359 § 498. The practice of the courts of general common law jurisdiction entrusted with the power of granting writs of mandamus, is so largely regulated by statute and local rules and usages, both in England and America, that it is a work of great difficulty to deduce from the adjudicated cases, any rules of practice not affected by statute and of general application. Indeed, it may be regarded as impossible, even if it were desirable in a general treatise upon the law of mandamus, to reduce to a harmonious system all questions of practice touch- ing the granting of the writ and its form and contents in so many different sovereignties, differing so widely in the prac- tice and procedure of their courts. And while some general features of the common law practice are still retained, and some of its general rules applied, in the different states, most questions of practice are regulated by local usage or stat- ute. It is these general principles which it is proposed to treat in the present chapter, it being presumed that each prac- titioner is sufficiently acquainted with the local practice j^re- vailing in his own state, to need no assistance upon these points from a general treatise, even were such assistance within the scope of this work. § 499. As has been shown in discussing the subject of pleadings in mandamus, the application for the peremptory writ, at common law, was a summary proceeding, and was heard upon the return without further pleadings. The statute of Anne,i however, authorized the relator to plead to or trav- erse all or any of the material facts contained in the return, and the usual practice now is to conform to the statute of Anne, in this respect, in the absence of conflicting statutes. Still it is to be observed, that this act did not have the effect of abro- gating the common law practice, and the summary method of proceeding may still be adopted. ^ § 500. At common law, upon a suggestion under oath, by the party injured, of his own right and the denial thereof, the usual practice was to issue a rule to show cause, directed to ' 9 Ann. ch. 20. See Appendix A. of Brooklyn, 13 Wend. 130. " People V. President & Trustees CGO MANDAMUS. [PABT I. the respondent and requiring him within a certain time to show cause why a writ of mandamus should not issue. If no suificient cause were shown, the writ itself was then issued, at first in the alternative form, to which the respondent was required to make return by a certain day, unless he chose to perform the act required. If he neither performed the act, nor made return within the time fixed in the alternative writ, the peremptory writ was then issued, commanding him absolutely to do the act in question, and to this writ no other return was allowed than a certificate of obedience to the mandate of the court. 1 § 501. By the English common law procedure act of 1854,^ the practice and procedure in mandamus cases, in that coun- try, have been entirely revolutionized, and most of the ancient and technical learning upon these subjects would seem to have been, to a considerable extent at least, rendered obsolete in England. This statute provides that the plaintiif in any action in any of the superior courts, except replevin and ejectment, may indorse upon the- writ and copy to be served, a notice to the defendant that he intends to claim a mandamus, and he may thereupon claim in his declaration, together with any other demand which may properly be enforced in the action, or separately, a writ of mandamus commanding the defendant to fulfill any duty, in the performance of which plaintiff is inter- ested. The pleadings and proceedings are assimilated as nearly as possible to those in ordinary actions for the recovery of dam- ages. The mandamus awarded need not recite the declaration or other proceedings, but simply commands the performance of the duty, and is in other respects similar in form to an ordinary writ of execution, except that it runs to the defendant instead of the sheriff', and may be issued in term or vacation, returnable forthwith. No return is allowed except that of com- pliance, and the writ thus issued has the same force and effect as a peremptory mandamus out of the queens bench. The statute also provides that upon application by motion to the ' 3 Black. Com. 111. Appendix C. ' 17tli & 18tli Vict, cli, cxxv. See CHAP. VIII.] OF THE PRACTICE. 361 court of queens bench, the rule may in all cases be made abso- lute in the first instance, if the court shall see fit, and the writ may be made returnable forthwith. The provisions of the common law procedure act of 1852 are also extended, as far as applicable, to the pleadings and proceedings upon a prerogative writ of mandamus out of the queens bench. Such are the lead- ing features of this statute, in as far as relates to practice and procedure, and it may be said to have entirely changed the English law upon this subject. ^ § 502. The usual practice in this country, in obtaining the alternative writ, is to present to the court a formal application, variously termed a petition, relation or complaint, setting forth in detail the grounds upon which the claim for relief is based and praying the aid of a mandamus. This application is generally verified by oath, or supported by afiidavits, and if a prima facie case is presented, warranting the relief prayed, the alternative writ issues commanding the respondent forthwith to do the act required, or to show cause why it should not be done. After the granting of the writ three courses are open to the respondent: first, he may do the thing required; second, he may demur; and third, he may make return. If he cliooses to demur and the demurrer is sustained, the application is of course ended. If his demurrer be over- ruled, the respondent must then make return, denying the allegations of the writ, or setting up new matter constituting a defense to the relator's claim. ^ And the proceedings are not to be assimilated to proceedings in equity. ^ § 503. Instead of issuing the alternative mandamus, as the first process upon the filing of a petition showing a prima facie case, the courts in some states have followed the former English practice of granting a rule to show cause. This seems to have been the former practice in New York, where, instead of issuing a mandamus in the first instance, the courts granted a rule to show caase, and the question of the relator's right to tbe relief sought, was then discussed upon the original papers See ADpeniiix C. Shrever e. Livingston Co. 9 Mo. 195 ; « See Swan ti. Graj 44 Miss. 393; Expa/rte Skaggs, 19 Mo. 389. Keasey ®. Brickor, 60 Pa. |t. 9. See ' Keasey «. Bricker, 60 Pa. St. 9. 362 MANDAMUS. [PAET I. on whicli the rule was obtained and the opposing affidavits. ^ And in Virginia, it was formerlj held to be an indispensable prerequisite to the issuing of a mandamus that a rule to show cause should first be granted, though this might be waived by the respondent appearing and making return to the alterna- tive writ.^ The later doctrine, however, in that state, is that a mandamus nisi may issue, without any previous rule to show cause. 3 And in Texas it is held that no rule to show cause is necessary, the alternative writ itself being regarded as the equivalent of a rule to show cause why the peremptory writ should not issue.* § 504. In Wisconsin, it is held to be correct practice, either to apply to the court in the first instance for an alternative mandamus, or to ask for a rule to show cause why the per- emptory writ should not issue, though a preference is expressed for the former course. ^ If, however, the latter course be . adopted, the rule to show cause serves the same purpose and performs the same functions as the alternative writ.^ But the practice of moving for several writs of mandamus upon one and the same rule to show cause, is regarded as improper, and but one writ should issue on such rule.'' The fact, how- ever, that too much is asked in the rule does not necessarily warrant the court in discharging it, and if tlie rule has been entered against several parties, against whom different writs are asked, a peremptory mandamus may be allowed as to one and refused as to the others.^ But the rule would seem to be otherwise where the relator proceeds by an alternative writ in the first instance,' or where the application is made against two public officers jointly. ^ " § 505. Where the aid of a mandamus is sought against ' See Commercial Bank e. Canal ' Attorney General v. Lum, 2 Wis Commissioners, 10 "Wend. 25; Peo- 507. pie i>. Judges of Washington, 1 « Id. Caine's Rep. 511. ' State v. Supervisors of Beloit, 20 ' Dinwiddie Justices ». Chester- Wis. 79. field Justices, 5 Call, 556. a Id. » Sights «. Yarualls, 12 Grat. 292. « Id. * Murphy v. Wentworth, 36 Tex. '» People v. Yates, 40 111. 126. 147. OHAP. VI.TI.J OF THE PKACTIOE. 363 inferior courts, the better practice would seem to be to apply for tlie rule to show cause and to allow a hearing upon the motion, in order that the parties in interest may have a full opportunity of being heard. ^ But if, upon the return of a rule to show cause why a mandamus should not issue, to com- pel the judges of an inferior court to sign a particular bill of exceptions, it is shown that the bill as presented was not true, the rule will be discharged and the case remitted, in order that the relator may apply for a mandamus requiring the judges to sign a biU of exceptions, or show cause.^ And if the object and purpose of the rule are not stated with sufficient clearness to apprise the respondent of the actual thing sought, the court will vacate the rule.^ § 506. Upon the argument of the motion for a mandamus, upon a rule to show cause, the relator, being the moving party, properly has the affirmative, and if the respondent has been heard in opposition to the motion, counsel for the relator ^ may be again heard in reply.* § 507. As regards the verification, by affidavit or other- wise, of the application for a mandamus, a distinction was early taken by the kings bench, between cases where the writ was sought in a matter of right, and where it was based upon a supposed failure of duty, and while in the former class of cases it was held that an affidavit was not required, in the lat- ter class the court would not proceed unless the facts were verified by affidavit. ^ In this country, the English rule requiring ihe application to be supported by affidavits has not been very strictly adhered to, although it is held that the peti- tion or application for the writ, must contain a statement of all the facts necessary to entitle the injured party to the relief sought, and that these facts should be verified in some form. "Where, therefore, the application is based upon the failure of ' Ex -pwrte Garland, 43 Ala. 559. Harring. 15. And see this case as to the general * People «. Throop, 12 Wend. 184, practice in granting writs of man- note; People «. Treasurer of Wayne damns and rules to show cause. Co. 8 Mich. 392. « State ». Todd, 4 Ohio, 351. ^ Queen «. Cory, 3 Salk. 230. 3 Houston II. The Levy Court, 5 864 MANDAMUS. [part I. duty on the part of the authorities of a municipal corporation, if the facts set forth are not verified by jurat or otherwise, the writ will be refused, even though the facts alleged are suffi- cient to make a case requiring the aid of a mandamus. ^ But while it may be necessary, in the case of a private relator seek- ing the extraordinary aid of a mandamus, to disclose by affi- davit the essential facts on which he relies for relief, yet the rule is otherwise where the writ is invoked by the public prosecutor, in behalf of the public. And where the proceed- ings are instituted by the attorney general, to secure the per- formance of a public duty, he need only suggest to the court the non-performance of the public right and demand the writ to compel its performance, without verifying his application by affidavit. 2 § 508. Where the petition for mandamus is made by sev- eral relators jointly seeking relief, it is competent for any one ,of the number to make the affidavit verifying the allegations of the petition, and in such case the omission of the other relators to join in the affidavit is not a fatal objection to the proceedings. * But where the relator has omitted in the alter- native writ important allegations of fact, necessary to entitle him to the relief sought, he will not be allowed upon the hear- ing to supply the omission by the affidavit or application on which the alternative writ was granted.* § 509, In conformity with the English rule, it is held that affidavits upon which an application for a mandamus is based, ' People ». City of Chicago, 25 mote the ends of justice. In this 111. 483. The court, Walker, J., case the petition proceeds for the say: " Whilst the strict English rule failure of a duty by the city, and of supporting the application by the facts set forth in the petition, separate afSdavits, is not regarded even if they are sufficient to make essential by our practice, still the a case, are not verified by a jurat or petition must contain a statement of otherwise, and the writ must there- all the facts necessary to disclose a fore be refused." case entitling the party to the relief ' State v. Wilmington Bridge Co. sought, and they must be verified 3 Harring. 813. by a jurat, or aflidavit in some form. " Cannon v. Janvier, 3 Houst. 27. This is the practice as it prevails in * McKenzie o. Ruth, 22 Ohio St. this country, and we regard it as 371. reasonable, and well adapted to pro- CHAP. VIll.] 0¥ THE PEACTIOE. 365 should not be entitled, since there is no cause yet pending. Thus, where it is sought by mandamus to compel an inferior court to give judgment in a cause then pending before such court, the affidavits in support of the application should not be entitled, as there is yet no cause pending in the court to which the application is made, and an indictment for perjury would therefore fail, since it could not be shown that such a cause then existed in the court in which the affidavit was made. * § 510. TJpon the hearing of the application for the writ, after return made, the proper practice is to act only upon the original papers and the return, and affidavits on behalf of the relators which are intended as a replication to the return are not admissable. The objection to receiving such affidavits is that they might contain new matter, which respondents should be permitted to answer, and the proceedings might thus be prolonged indefinitely.^ § 511. Where the respondent desires to take advantage of any defect in the notice of the application for a mandamus, he should do so in the first instance, since by making return to the writ he thereby waives all defects in the original notice, and can not afterward take advantage thereof.^ § 612. "We have elsewhere seen, that at common law, a writ of error would not lie to the judgment of an inferior court awarding or refusing a peremptory mandamus, but that in England and in most of the states of this country the old rule has been departed from, and writs of error are allowed. But as to the decisions of inferior courts granting or refusing the alternative writ, the better considered doctrine is, that no writ of error or appeal will lie, the judgment of the court being in no sense a final judgment upon a question of right between the parties.* ' Haight V. Turner, 3 Johna. Eep. 159 ; McBane ■s. The People, lb. 505. 371 ; People «. Tioga Common Pleas, ^ Shrever o. Livingston Co. 9 Mo. 1 Wend. 291. See Ex pa/rte La.Fa.rge, 195; Mx parte Skaggs, 19 Mo. 339. 6 Cow. 61. But in some of the states an order " People ». Corporation of Brook- of a court of record refusing to lyn, 1 Wend. 318. award an alternative mandamus, is 2 People V. City of Cairo, 50 111. treated as a final order which mav 3(i6 MANDAMUS. [PAET I. § 513. Since the power of issuing writs of mandamus is one which pertains to the court itself, as a judicial act, the alternative writ can not properly be issued by a clerk of court without an order of the court therefor, i And a reasonable time should be allowed by the court within which to make return, and the clerk should not be allowed to fix such time in his own discretion. 2 If sued out in vacation, it has been held that the writ should be made returnable to the next term of the court, and that it was error to make it returnable at cham- bers, and to hear and determine the case at chambers and grant the peremptory writ upon such hearing.^ Being an extraordinary remedy, however, and one which issues only when the ordinary process of the courts would prove unavail- ing, it would seem to be competent for the court to make it returnable according to the necessities of the particular case. And in the absence of any rule fixing the time for the return, it is left to the discretion and judgment of the court awarding the writ.* § 514. We have already seen that the affidavits, upon which the application for a mandamus is based, should not be entitled, and the same rule applies to the application or relation itself, which should simply be addressed to the court to which it is presented, without being entitled in any cause, since the pro- ceedings at this stage are raerelj ex parteJ An objection, however, on the ground that the application is entitled, being merely formal, should be taken m limine." The application or relation should state facts, and not mere evidence or legal conclusions from facts. And matters of which the court will take judicial notice, or which would properly appear by way of defense, need not be stated, but it should always appear that the inferior tribunal or officer against whom the writ is sought is legally required to perform the desired acf be reviewed by an appellate court. 147. Mx pa/rte Morris, 11 Grat. 392. And * State v. Jones, 1 Ired. 129. see Etheridge v. Hall, 7 Port. 47. » Chance v. Temple, 1 Iowa, 179. '- People V. Brooks, 57 111. 142. And see Price v. Harned, lb. 473. ' Id. ' Chance v. Temple, supra. ' Murphy v. Wentworth, 36 Tex. ' Id. CHAP. VIII.] OV THE PEACTICE. 367 § 515. Where the application has once been made and refused, the courts are exceedingly averse to granting the writ upon a subsequent application, holding that the parties should come prepared with proper materials in the first instance. 1 And where a mandamus is refused, on the ground of want of demand and refusal to perform the act sought, it is held that the writ will not be granted on a new applica- tion, even though it show a demand and virtual refusal, since the former application was denied. ^ But it is held that the objection for want of demand and refusal, should be taken at the outset of the argument upon the rule to show cause, and that it will not avail at a later stage of the proceedings.^ § 516. As regards the time when the application should b€ made, it is believed to be the usual practice in most states, to entertain applications for the alternative writ at any time, either in term or in vacation. In Alabama, however, it is held that, in the absence of statute regulations upon the sub- ject, the application should be made to the court only in term time, and that it is improperly made to a judge in vacation.* § 517. Service of the alternative writ is usually made upon the person or officer who is to perform the required act, or whose duty it is to make return. In the case of municipal corporations, the practice was early established of delivering the writ to the mayor, as being the " most visible part " of the corporation. 5 And in mandamus to a board of county super- visors, the original writ should be delivered to the chairman of such board, and a copy should be delivered' to each of the other members.* As regards the manner of serving the alter- native writ or the rule to show cause, it would seem, in the absence of any imperative statute requiring personal service, that such service is not absolutely necessary before granting the peremptory writ, except to lay the foundation for proceed - ' Queen v. Pickles, 3 Ad. & E. N. * Ex parte Grant, 6 Ala. 91. S. 599, note b. ' Queen v. Chapman, 6 Mod. Rep. » Ex parte Thompson, 6 Ad. & B. 153; King v. Mayor of Exeter, 12 N. S. 731. Mod. Rep. 351. » Queen v. Gamble, 3 Per. & Dav. ' State v. Supervisors of Mineral 133, note d. Point, 33 Wis. 396. ■ 368 MANDAMUS. [PART I. ings in attachment for contempt in violating the writ.i ITor is it necessary, for the purposes of awarding the peremptory writ, or an attachment for contempt in violating it, that the alternative mandamus should have been served by an officer of the court, duly authorized to serve process, it being regarded more in the nature of an ordinary rule, which may be served by an attorney or other person. ^ And it has been held that service by delivering a copy, at the same time producing the original, was good.^ And service by delivering a copy of the original writ will not be set aside, because the original was not served and was not shown to the person on whom service was made.* But it has been held that service by reading or merely offering to read the writ to the respondent, the officer retain- ing the writ on which to make his return, like an ordinarj process, was insufficient. ^ § 518. Questions of costs, in granting or withholding relief by mandamus, are usually regulated by statute, or left to be determined by the discretion of the court, and are hence not susceptible of being regulated or determined by iixed aiid definite rules. Where the application for the mandamus is merely ex parte, it would seem that costs should not follow its denial. But where notice of the motion is given to the adverse party, which he opposes, and the law is so plainly against the relator that the application is denied, costs may be awarded against him." And under a statute providing that, unless otherwise directed by law or by the court, costs shall follow the event of every action, it is held that proceedings in man- damus are not to be excepted from the general rule, and are governed by the statute.'' ' State V. Jones, 1 Ired. 129. practice on denying motions of this ' People D. Pearson, 3 Scam. 374. Icind, lias been not to give costs, es- ' St. Louis County Courts. Sparks, pecially where the motion is merely 10 Mo. 118. ex parte. But where notice of the * Queen v. Birmingham etc. R. motion is given to the adverse party, Co. 1 El. & Bl. 293. which he opposes rightfully, as in ' Ladue v. Spalding, 17 Mo. 159. this instance, and the law is plain ' Ex parte Root, 4 Cow. 548. And against the relator, we see no reason see People v. Supervisors of Colum- why costs should not follow the bia, 5 Cow. 391. In Ex pa/rte Root, denial. Such is the present case." it is said, per curia : " The general ^ Fox v. Whitney, 32 N. H. 408. OHAP. VIII.] OF THE PRACTICE. 369 § 619. In the matter of amendments, there would seem to be no reason why proceedings in mandamus should not be governed by the same rules which prevail in the case of ordi- nary legal remedies. And the alternative writ may be altered or amended so as to preserve the symmetry of the proceedings, and to make it conformable thereto.^ The courts will not, however, ordinarily permit the peremptory writ to be amended, but if it demands more than the relator is entitled to under his alternative writ, it may be set aside, and the relator may amend the alternative writ and then be entitled to a peremp- tory mandamus. 2 § 520. The doctrine is regarded as well settled in England, that where the rule for the alternative writ has been dis- charged, because of defects in the affidavit on which the application was based, it can not afterwards be granted upon an amendment to the affidavit, the only recognized exceptions to the rule being in cases where the amendment is merely in matter of form, as in the title of the cause or the jurat.' But where the return is so defective that a demurrer thereto would have been sustained, but instead of demurring a mate- rial issue has been joined and tried by a jury, leave may be allowed to file an amended return.* § 521. Since the issuing of an alternative mandamus, upon an ex parte application, is not at all concliisive upon the real merits of the controversy, or the sufficiency of the application, it follows that the respondent should be allowed an opportunity of testing the sufficiency of the alternative writ, or of the appli- cation therefor, before being compelled to make return. Such an opportunity is usually afforded by a motion to quash the alternative mandamus, which may be grounded, either on defects in substance, or in form. The motion to quash in mandamus cases, performs the functions of a demurrer to a declaration in an ordinary action at common law, and it is ' State ». Acting Board of Alder- ' Queen v. Great Western R. Co. 5 men, 1 Rich. N. 8. 30 ; State v. Gibbs, Ad. & B. N. S. 597. 13 Fla. 55. * State t. School Land Commis- '' Commissioners of Columbia v. sioners, 9 Wis. 300. King, 13 Fla. 451. 24 370 MANDAMUS. [PAKT I. regarded as the appropriate means of testing the sufficiency of the application.^ And it is held that the respondent is not bound to present his objections to the writ by return, but may in lieu thereof raise aU objections by a motion to quash the alternative writ, and upon this motion he is always entitled to be heard. 2 If the motion to quash be overruled, the proper practice is to allow the respondent, if he desire, further time ■ State 11. Lean, 9 Wis. 279. The court, Paine, J., say: "This was an application for a writ of mandamus to compel Joseph Lean, the register of deeds of Iowa county, to keep his office at Mineral Point. An alter- native writ was issued at the last term, and on the return day counsel appeared on behalf of Lean, and moved to quash the writ, for alleged defects in the petition on which it was granted. This motion was argued in the absence of the relator, but was not disposed of, and owing to the changes of the judges com- posing this court, a re-argument was ordered. At the present term the relator has filed a motion to strike from the files the motion to quash, and also another motion for a per- emptory writ. These three motions were argued together, and will now be disposed of. In support of the motion to strike off, it was urged that after an alternative writ of man- damus is once issued, the person to whom it is directed can only make return according to its mandate, and can not be permitted to move to quash the writ, even for alleged de- fects in substance in the petition on which it was issued. But we are satisfied that as a matter of practice, in such cases, a motion to quash is entirely proper. Alternative writs are usually granted without much examination. The papers are read. and if it appears clearly that the petitioner is not entitled to the relief sought, the writ is refused. Other- wise it has been usual to allow it to issue, leaving the merits of the ap- plication to be determined when presented by those familiar with them, and when both sides should be represented. And this course is almost a necessity. Applications for the writ are ex po/rte. The ques- tions involved are frequently com- plicated, and the solutions difficult. And it would be impossible for the court to give them such examina- tion, that the issuing of the writ should be held at all conclusive on the sufficiency of the applica- tion. And a motion to quash is a proper mode of testing that suffi- ciency. It performs the functions of a demurrer to a declaration, and we think, if a writ should be issued on an application defective in sub- stance, the person to whom it was directed should have some method of raising that question, before be- ing compelled to answer. And the authorities cited by the counsel for the respondent show that a mo- tion to quash has been resorted to for that purpose, both in this coun- try and in England. We think the practice proper, and the motion to strike off must therefore be denied." " Harwood v. Marshall, 10 Md. 451. CHAP. VIII.] OF THE PRACTICE. 371 to make return, i If the motion be sustained, leave may be given to amend. ^ § 522. Any variance in substance between the order of the court and the terras of the alternative writ, by which the char- acter of the act to be performed is changed, constitutes such a defect as may be taken advantage of by a motion to quash.* And in general it may be said, that, since it is incumbent upon the relator to show a clear right to the relief before it is awarded, a motion to quash the alternative mandamus will be sustained where he fails to show such right.* So if the alter- native writ, as well as the petition on which it is granted, is defective in substance, a motion to quash will be sustained.^ § 523. Under the English practice, aU objections to the alternative writ, in limine, should be raised by motion to quash, before return made, and by making return the respon- dent is usually precluded from raising any objections to the writ itself." And after return made and issue tried thereon, the courts will not quash the writ upon grounds which might properly have been urged against making the rule for the man- damus absolute, as that the prosecutor had deceived the court in obtaining the writ.'' In this country, the tendency has been toward a less stringent practice, and it is held that a mption to quash for defects in substance will lie, even after return made.* But as regards objections of a merely formal and technical nature, the English practice still prevails, and it is held that all such objections should be urged by motion to quash in the first stage of the proceedings, and they will not be allowed to prevail after return.' § 524. As a matter of convenience, it is frequently stipu- lated by counsel, that the petition or application for the alter- native mandamus shall stand for the writ itself. In such cases, > State V. Lean, 9 Wis. 379. ° McCoy v. Justices of Harnett, 5 " State V. Hastings, 10 Wis. 518. Jones, 265. See State «. Blwood, 11 Wis. 17 ; « King v. Mayor of York, 5 T. R. State V. Slavin, lb. 153. 66. " Hawlsins v. More, 3 Aik. 345. ' Queen v. Mayor of Stamford, 6 « State V. Hastings, 10 Wis. 518; Ad. & E. N. 8. 433. State V. Elwood, 11 Wis. 17 ; State v. ' Hawlcins v. More, 3 Ark. 345. Slavin, lb. 153. ' Fuller v. Trustees, 6 Conn. 532. 372 MANDAMUS. [PART I. a motion to quash has the effect of fully presenting to the court for its decision the questions raised by the application, and whether it shows a right to the relief sought, i In other words, the motion to quash performs in such case the functions of a demurrer, and brings the law of the case fully before the court. All the facts which are sufficiently pleaded are admitted by the motion, and the principal question presented is, whether enough is shown in the petition or application to entitle the relator to a peremptory mandamus. ^ § 525. Where the return to the alternative writ specifies and sets out in detail the objections to granting the relief sought, such- objections being in the nature of a demurrer to the writ, the effect of quashing that portion of the return is regarded as equivalent to overruling a demurrer to the alterna- tive writ, and although such practice is deemed irregular, the court may treat the questions presented as arising on demurrer. ' § 526. As to the form of entering judgment, where the relator fails to make out a case entitling him to the peremptory writ, it is held to be the proper practice to enter the judgment that the respondent go without day, and that he recover of the relator his costs.* And it is improper, in such case, to enter judgment that the writ be quashed, since such judgment is only appropriate when the petition does not disclose a case coming within the legitimate scope of the writ of mandamus, or where it is informal or defective. ^ § 527. Where exceptions to the return are overruled and the relator asks leave to plead over, his motion should be granted, the proceedings being assimilated as nearly as possi- ble to pleadings in ordinary actions. ' And where, upon return or answer, the relator moves for a peremptory writ upon the pleadings, the effect of such motion is the same as a demurrer to the return for not stating facts sufficient to constitute a defense.' But, while the relator is entitled to the benefit of ' People V. Salomon, 51 111. 40. Jones, 451. ' Id. » Id. ^ County Court of Madison v. The « State «. Jones, 10 Iowa, 65. People, 58 111. 456. ' People v. Supervisors of San ' Tucker v. Justices of Iredell, 1 Francisco, 27 Oal. 655. CHAl'. VIII.J OP THE PEACTICE. 373 all admissions contained in the return, if the case be brought to argument upon the alternative writ and the return, he can not insist upon facts alleged in his petition for the mandamus, or in the accompanying affidavits. ^ § 528. The practice in the United States courts in cases of mandamus, prior to the act of congress of June 1, 1872,^ was substantially identical with the practice at common law. That act provides that the circuit and district courts of the United States, in other than equity and admiralty causes, shall con- form as near as may be in their practice and pleadings to the practice in the state courts where they are situated. The effect of this statute, upon the practice in cases where the jurisdic- tion by mandamus is exercised by these courts, as ancillary to their existing jurisdiction conferred by law, does not seem to have been settled by any direct adjudication. It is held, how- ever, that this act does not apply to proceedings by mandamus in the federal courts in case of a special jurisdiction, created and conferred by a special act of congress for that purpose, as under the act of March 3, 1873,^ which provides that the proper circuit court of the United States shall have jurisdic- tion to hear and determine all cases of mandamus to compel the Union Pacific Railway Company to operate its road as required by law. And in cases arising under this statute, the courts will still be governed by the rules of practice prevailing at common law.* • People V. Commissioner of State ' M Statutes at Large, 509. Land Office, 19 Mich. 470. * United States v. Union Pacific 2 16 Statutes at Large, 197. R. Co. 2 Dill. C. C. 537. CHAPTER IX. OF THE ALTERNATIVE WEIT. § 529. Distinction between alternative and peremptory writs. 530. General nature of the alternative writ. 531. Origin of term mandamus; writ bears name of state or sovereign. 533. Form of writ ; distinction as to discretionary nature of act required. 533. Form of mandamus to courts to act on matters within their judgment. 534. The same as to ministerial duties of court. 585. Form of writ to compel auditing of demands against municipality. 536. General principles as to contents of alternative wit. 537. The same; must show clear right; facts necessaiy. 538. "Writ must correspond with order of court; defects in substance, how taken advantage of. 539. Mandatory clause ; great strictness required ; general requisites. 540. Absence of other legal remedy need not be alleged. 541. Alternative writ must follow rule to show cause. 543. Direction of the writ ; general rule ; rule where two persons may do the act. 543. Direction to municipal corporation. 544. Direction to courts. 545. Direction to private corporation, where inspection of books is sought. 546. Conclusion in the alternative ; omission not fatal ; defects not supplied from return. § 529. Writs of mandaimis as employed in the courts of England and of this country, are divided into two genei'al classes or subdivisions, whose distinguishing features are clearly marked and universally recognized. These are the alternative arid the peremptory writ, which sustain toward each other a relation somewhat akin to that of original and final process in an ordinary action at law. The chief points of difference between these two writs, or rather forms of the (374) CHAP. IX.J OF THE ALTERNATIVE WRIT. 375 same writ, relate to the time when they are issued, and their nature as admitting of answer or return. The alternative writ issues in the earlier stages of the cause, in some cases upon a rule to show cause, in others upon a formal petition or appli- cation, without such rule.' In either event, its purpose is one and the same, namely, to apprise the respondent of the nature and grounds of the relator's claim for relief, and to afford him an opportunity of performing the act required, or of showing caiise to the contrary. It therefore concludes with a clause in the alternative, commanding the respondent to perform the duty in question, or show cause to the court by a given day why he should not perform it, and it is from this clause that the alternative writ derives its name. It follows necessarily, from the object as well as the structure of the alternative writ, that it admits of an answer or return, in which the respondent may set forth the reasons why he should not yield obedience to the mandate of the court. The peremptory mandamus, as we shall hereafter %ee,^ is the final mandate of the court granted after full hearing and satisfactory proof, commanding the respondent forthwith to perform the duty in question. It is absolute and peremptory in its nature, admitting of no answer or return, and to its mandate the respondent is required to yield implicit obedience, under pain of attachment for a contempt of court. ^ § 530. In its form, the alternative mandamus is simply a command of the court, that the person to whom it is directed shall perform a particular act or duty therein specified, in favor of the relator or prosecutor, whose right is stated by way of inducement, or that cause be shown to the contrary within a given time. In its general features, it has been compared to a declaration in an ordinary action at law, it being the province of each to notify the opposite party of the cause of action, and of the particular relief claimed.* And the alternative writ may be said to combine the double functions of process and pleading in the same cause, to the extent that it serves to bring ' See §§ 500, 502, 503. * See Canal Trustees «. The Peo- 2 See Chapter X, post. pie, 13 111. 254. ^ See Chapters X and XI, post. 376 MANDAMUS. [PAKT I. the respondent into court, as well as to apprise him definitely of the grounds of action against him. Though largely subject, however, to the ordinary principles and rules of pleading, it is more frequently spoken of as a process or writ than as a form of pleading. And it has been held to partake of the nature of an ordinary rule of court, to the extent that it may be served by an attorney or other person, official service by an officer of court not being required. ' § 531. The term mandamus, as applied both to the alterna- tive and the peremptory writ, seems to owe its origin to that large class of mandates, or letters missive, by which the sover- eign of England formerly directed the performance of any desired act at the hands of his subjects, in which the word " Tnandamus" was always employed. These mandates, how- ever, bore no other resemblance to the present writ of man- damus than the name, and were in no sense judicial writs, although they may be regarded, to the extent here indicated, as the germ of the present writ. Being originally a prerogative writ in England, and still preserving many of its prerogative features, it always issues, in that country, in the name of the sovereign. In the United States, although the prerogative theory of the writ is generally discarded,^ writs of mandamus still bear the name of the state as prosecutor, although the object sought may be, and usually is, the enforcement of merely private rights.* It seems, however, to be the growing ten- dency of the courts in this country, to regard the use of the name of the state or sovereignty as merely nominal, since the writ is generally considered as a civil remedy.* § 532. An important distinction is to be observed as regards the form of the alternative mandamus, between cases where it is granted to compel the performance of a plain and unmis- takable official diity, ministerial in its nature and involving the exercise of no official judgment, and cases where it issues ' People «. Pearson, 3 Scam. 374. sett, 3.9 Conn. 398. See also State v. Jones, 1 Ired. 139. ' State e. Commissioners of Perry, " See Commonwealth v. Dennison, 5 Ohio St. 497 ; Chance v. Temple, 1 34 How. 66 ; Kendall v. The United Iowa, 179. States, 13 Pet. 537 ; Gilman «. Bas- * Brower «. O'Brien, 3 Ind. 433. CHAP. IX.] OP THE ALTERNATIVE WRIT. 377 to public officers merely to set them in motion, and to compel tliem to act upon matters resting within their discretion. And while, in the former class of cases, it is proper for the writ to designate specifically the precise act or thing whose performance is required, in the latter class the writ should run in general terms, merely commanding the officers to act upon the matter in question, without directing them to act in any particiTlar manner, or to reach any given result. * § 533. The principle just considered applies with equal force in determining upon the form of the writ when granted against subordinate courts, for the purpose of setting them in motion. And where the writ issues to compel a subordinate court to act upon some matter properly within its jurisdiction, it will not, in terms, prescribe the nature of the judgment to be rendered, or the party in whose favor the court shall decide, but will merely command the court to proceed and determine the matter in controversy, leaving it to render such judgment as it may deem just.^ So where the writ is granted against the judge of an inferior court, to procure the signing of a bill of exceptions, it should in no event command him, in terms, to sign a bill absolutely as presented, but only to sign it after 'seing duly settled, leaving the discretion of the judge imtram- neled as to what the contents of the bill shall be.^ So, too, T^here the aid of mandamus is sought to compel an inferior court to approve of the sureties upon an official bond, it is regarded as the correct practice to so frame the alternative writ as to direct the court to proceed and act upon the application, and hear evidence oflfered as to the sufficiency of the sureties, and to approve them if sufficient.* § 634. Where, however, the aid of mandamus is invoked to compel a court to perform an act of a ministerial nature, con- cerning which it is vested with no discretionary powers, there would seem to be no impropriety in the alternative writ con- ' People V. Supervisors of Dutch- " Life & Fire Insurance Co. v. ess, 1 Hill, 50 ; Humboldt Co. v. Adams, 9 Pet. 573. County Commissioners of Churchill, * People v. Lee, 14 Cal. 510. 6 Ney. 30 ; People v. Brennan, 89 ' State v. Howard Co. Court, 41 Barb. 651. Mo. 247. 378 MAWDAMXTS. [PAET I. taining a direct and formal command to the court to do tlie particular thing required. Thus, where a subordinate court has no power by law to set aside verdicts, or to grant new trials, and it is its plain duty to enter judgment upon a verdict rendered, it is proper for the writ to command the court in positive terms to enter the judgment. * So where the signing of judgment is, under the laws of a state, a necessary and absolute duty on the part of the judge, without which the judgment can not be enforced, the writ may, in terms, com- mand the signing of the judgment, the act of aiExing the signature being regarded as purely a ministerial duty.^ § 535. Upon principles analogous to those just considered, the form of the writ may be determined in cases where it is applied to set in motion municipal officers, and to compel the auditing of claims and demands against municipal corpora- tions. And where the writ issues to compel municij)al author- ities or boards to audit and pass upon demands against the municipality, it should be limited in form and terms to merely setting the officers in motion and requiring them to act, without directing them to render any particular decision, or to audit the demands at any given amount.^ Where, therefore, it is sought to require such officers to audit a particular demand, and to draw their warrant for its payment, instead of directing them to audit the demand at a given sum, the direction should be to audit the claim and to issue their warrant for such sum as they may allow.'*' § 536. As regards the contents of the alternative writ, the general rule is that it should contain all matters necessary to entitle the relator to the relief claimed. In other words, it should allege all the facts which go to constitute the duty, and which induce the obligation on the part of respondent, to ' Cortleyou «. Ten Eyck, 2 Zab. 45. Johns. Rep. 243; People v. Super- See also Lloyd v. Brinck, 35 Tex. 1. visors of N. Y. 33 N. Y. 473 ; People ' Life & Fire Insurance Co. v. ». Supervisors of Delaware Co. 45 Wilson's Heirs, 8 Pet. 391. N. Y. 196 ; People v. Supervisors of ' See People «. Supervisors of San Macomb Co. 3 Mich. 475. Francisco, 11 Cal. 43; Furman v. ■■ Tuolumne Co. ■!!. Stanislaus Co. Knapp, 19 Johns. Rep. 348; Bright 6 Cal. 440. ». Supervisors of Chenango, 18 CHAP. IX.J or THE ALTERNATIVE WEIT. 379 perform the act required. * And the gravamen of the com- plaint, as stated in the inducement of the writ, must be distinctly charged, since the courts will infer no faplt or dereliction on the part of the respondent for the purpose of sustaining the writ.^ But a mere recital in the writ of a statute, out of which it is claimed the duty arises whose enforcement is sought, will not be deemed a fatal objection where sufficient is recited to sustain the relator's case.^ And upon mandamus to compel the making of certain alterations in public works, by persons who are entrusted by law with discretionary powers as to the extent of the alterations required, as well as their mode of performance, it is sufficient if the alternative writ commands the doing of the acts in gen- eral terms, without specifying any particular alterations.* § 537. The alternative writ being regarded as the founda- tion of all the subsequent proceedings in the case, and resem- bling in this respect a declaration in an ordinary action at common law, it must show upon its face a clear right to the relief demanded, and the material facts on which the relator relies must be distinctly set forth, so that they may be admit- ted or traversed by the return. ^ A mere general assertion that injustice has been done the relator, does not suffice to meet the requirements of the rule, but he should state the exact particulars in which he claims to have been wronged, in order that the respondent may be enabled to answer them specifically.* And the matter of inducement stated in the alternative writ should include everything necessary to show jurisdiction over the subject of the writ, and to warrant its mandate, and these facts should be stated with precision and issuably.' ' Peat's case, 6 Mod. Kep. 310 ; 6 B. &. C. 181. King v. Bishop of Oxford, 1 Bast, ' Canal Trustees v. The People, 12 345. 111. 354; People v. Supervisors of 5 See opinion of Denman, C. J., Westchester, 15 Barb. GOT ; McKen- in Queen v. Eastern Counties R. Co. zie ■». Ruth, 32 Ohio St. 371. 10 Ad. & E. 531. ° People v. Supervisors of West- = Opinion of Holt, C. J., in King Chester, supra. V. Slatford, 5 Mod. Rep. 316. ' Chance v. Temple, 1 Iowa, 179. * King V. Bristol Dock Company, 380 MANDAMUS. [part § 538. It is to be presumed that all the material facts upon which the relator founds his claim to relief are stated in the alternative writ, since it is from this source only that the respondent can learn what the requirements of the court are, and what he is commanded to do. Great strictness is, there- fore, requisite in the form and contents of the alternative writ, • which must neither be enlarged beyond nor restricted within the limits of the order of the court. * Any substantial variance, changing the character of the act required to be done, will be fatal and may be taken advantage of on a motion to quash. ^ Aad an alternative mandamus which does not allege the facts upon which the relator relies, and which fails to apprise the respondent of the grounds on which relief is sought, is fatally defective, and the defect being in substance, it is held that it may be taken advantage of at any stage of the proceedings.^ ' Hawkins c. More, 3 Ark. 345. 'Id. « Canal Trustees ». The People, 13 111. 354. Treat, C. J., for the court, says: "This was a proceeding hy mandamus to compel the trustees of the Illinois and Michigan Canal to erect a bridge over the canal in La Salle county. Upon a petition and accompanying papers, the cir- cuit court directed an alternative mandamus to issue. The writ, after reciting the term of the court and the names of the parties, proceeded to state that the court ' did order that an alternative mandamus issue out of said court, directed to and commanding the said trustees, that Immediately upon the receipt of said writ, they cause a bridge of suitable dimensions to be built over the Illinois and Michigan Canal, at the centre east and west of section ten, township thirty-three north, of range three east of the third prin- cipal meridian, in said county, the said canal at that point obstructing a public highway; or tliat they show cause to the contrary before our said circuit court. Now, there- fore, we, being willing that full and speedy justice be done in this be- half, as it is just, command you, the said trustees, that immediately after the receipt of this writ, you cause the said bridge to bR built, or that you show cause to the contrary,' etc. The writ was served on the trustees, but they failed to make any return thereto, and the court awarded a peremptory mandamus. The trustees sued out a writ of error from this court. It is insisted, that the alternative mandamus is too de- fective to sustain the judgment. An alternative mandamus becomes the foundation of all the subsequent proceedings in the case. It answers the same purpose as the declaration In ordinary actions. It must show on its face a clear right to the relief demanded by the relator. He must distinctly set forth all the material facts on which lie relies, so that the same may be admitted or traversed. The defendant is called upon to CHAP. IX.] OF THE ALTERNATIVE "WEIT. 381 The writ should also call the attention of the respondent with especial certainty and particularity to the precise thing which he is required to do.* § 639. Especial care should be taken in framing the man- datory clause of the alternative mandamus, since the writ must perform the particular act sought to he enforced, or, hy a return, deny the facts alleged in the writ, or state other matters sufficient to defeat the relator's application. He is not re- quired to answer the petition on which tlie writ is ordered. This is the well established practice in the proceeding by mandamus. The King V. The Bishop of Oxford, 7 East, 345 ; The King v. The Margate Pier Company, 3 Barnewell & Al- derson, 330 ; Clarke v. The Company of Proprietors, 6 Adolphus & Ellis, N. S. 898; The Commercial Bank v. The Canal Commissioners, 10 Wen- dell, 36; The State v. .Tones, 1 Ire- dell, 139; Hoxie v. Commissioners of Somerset, 35 Maine, 338 ; The People -0. Ransom, 3 Comstock, 490. In this case the alternative man- damus is fatally defective. It does not set forth the facts on which the relators rely. It does not apprise the defendants of the grounds upon which the remedy is sought. They are not permitted to traverse a cer- tain state of facts, or admit the same to he true, and set np new matter in avoidance. The writ simply commands them to perform a particular act, or furnish an ex- cuse for not doing it. It is not sufficient to uphold the proceedings. The judgment has no basis on which to stand. The usual mode of taking advantage of a defective alternative mandamus is by motion to quash. And that may be the only mode of reaching mere formal defects. But objections to substantial defects may be raised at any stage of tiie proceedings. This is like the case of a writ of error brought to reverse a judgment entered on-a declaration showing no cause of action ; or of a conviction on an indictment that does not charge the commission of an offense. The proceedings fall for the want of a proper foundation to sustain them. The following cases are in point, if authorities are needed in support of so plain a proposition. In the case of The King V. Overseers of Shepton Mallet, 5 Modern, 431, the writ was held till after return made. In The King v. The Margate Pier Company, supra, the defendants were allowed to take advantage of a material defect in the writ, after their return was made. In Clarke v. The Company of Proprietors, supra, it was held by the court of exchequer, that, on demurrer to a traverse of the return to an alternative mandamus, the defendant might impeach the valid- ity of the writ. In the case of Th« Commercial Bank ». The Canal Commissioners, supra, a demurrer to the return was carried back and sustained to the writ. It is not necessary to express an opinion on the question, whether the trustees are bound to construct and main- tain bridges across the canal. The judgment must be reversed, with costs, against the relators." ■ People V. Brooks, 57 111. 143 382 MANDAMUS. [PAKT I. be enforced in the terms in whicli it is issued, or not at all, and the relator is concluded by its terms. ^ The mandatory clause should, therefore, be supported by and should not exceed the averments of title or right which form the induce- ment of the writ, and should be in conformity with the legal, obligation of the respondent. ^ If it exceeds the limits of such legal obligation, it is void.^ And an additional reason for the strictness exacted in the statement in the mandatory clause, of the duty required of the respondent, is found in the fact that, if the alternative writ be awarded for a purpose partly proper and partly improper, the court will not enforce it by a per- emptory mandamus as to that which is proper, but will quash the whole.* Where, therefore, the alternative writ demands more than the relator is entitled to, judgment will be given for the respondent, and the court will not separate and give judgment for the relator as to a part of the requirement of the writ, and for the respondent as to the residue.^ And where the mandatory clause, as prayed for by the relator, is so framed as to compel respondent to look dehors the writ, in order to ascertain the exact duty required of him, it is so defective that a peremptory mandamus will not be awarded.' The mandatory clause, therefore, like the body of the writ, should expressly and clearly state the precise thing which is required of the respondent.'' So where the alternative writ requires the respondent, a municipal corporation, to do several acts in the alternative, as to pay a certain judgment, or to issue, bonds for its payment, or to levy a tax upon its taxable property for its payment, the acts being distinct in their nature and the writ designating neither one in particular, a motion to quash will be sustained.* § 640. It has been shown in the opening chapter to be a ' Chance «. Temple, 1 Iowa, 179 j " People o. Supervisors of Dutch- Hartshorns. Assessors of Ellsworth, ess, 1 Hill, 50. 60 Me. 376. And see State e. City « Hartshorn «. Assessors of Ells- of Milwaukee, 22 Wis. 397. worth, 60 Me. 276. 2 Chance «. Temple, 1 Iowa, 179. ' People 's. Brooks, 57 111. 143. " Id. « State ». City of Milwaukee, 32 * Hartshorn v. Assessors of Ells- Wis. 397. worth, 60 Me. 376. CHAP. IX.J OP THE ALTERNATIVE WRIT. 383 fundamental principle of the law of mandamus, that the relief will never be granted where any other adequate, legal remedy exists, by which the .party aggriev^ may obtain full redress. i And the doctrine was formerly maintained, in the court of kings bench, that the alternative writ should allege, in terms, the want of any adequate legal remedy, as a foundation for the exercise of the extraordinary jurisdiction of the court by mandamus. 2 In this country, however, the doctrine would seem to be well established, that it is not necessary to allege in the alternative writ that the relator has no other remedy, or that he is without redress by the ordinary legal methods, it being sufficient in this respect that the facts stated in the writ show this to be the case. In other words, the existence or non-existence of other adequate remedy is a conclusion of law, to be drawn by the court from the facts stated, and it need not, therefore, be distinctly alleged in the alternative writ.^ , And it is held that the facts showing the absence of other adequate remedy need not be stated affirmatively, but that it is suffi- cient to state them by way of recital.* § 541. Under the English practice, the alternative writ only issued from the court of kings bench, after a rule to show cause had been made absolute, against the person or body to whom the proceedings were directed, and this practice has been adopted by some of the states of this country. In all cases where this practice prevails, the English rule should be followed, requiring the alternative writ to be framed in strict accordance with the rule as made absolute. And a failure to conform to the terms of the rule in this respect, is sufficient groimd for sustaining a motion to supersede the alternative mandamus.^ As illustrating this principle, where the rule, as granted against the mayor and aldermen of a municipal corporation, was, that they should assemble and keep courts and do the office of the corporation, but the alternative writ, ' See § 15, ante. * State v. Goll, supra. 2 King v. Overseers of Shepton '■ Rex v. Wildman, Stra. 879 ; King Mallett, 5 Mod. Rep. 421. u. Mayor of Kingston-upon-HulI, 11 ■ State -0. Jones, 1 Ired 139; State Mod. Rep. 383; S. C. 8 Mod. Rep. II. Goll, 3 Vroom, 385. 209. 384 MANDAMUS. [PAET I. as issued, required them also to admit all those to their free- dom who had a right to be free of the corporation, the writ was superseded before return, the court holding that there was no warrant on which to ground it.i And it would seem that, after return made, such a discrepancy between the alternative mandamus and the rule, constitutes sufficient ground for quashing the writ.^ § 542. The proper direction of the alternative mandamus is a matter of considerable importance, since it is by the direc- tion only that it is to be determined who shall obey the writ, or make return thereto. The general rule is, that it should be directed to those, and to those only who are to obey it, and a disregard of this rule is sufficient ground for sustaining a motion to quash. ^ And where there are two persons, specially designated by law, either of whom may do the thing required, it would seem that the proceedings should be instituted against both, and that the alternative writ should command them, or one of them, to perform the desired act.* And where the writ runs to an officer, for the performance of a duty incum- bent upon him by virtue of his official station, it should be directed to him by his official description or title.' § 543. Upon mandamus to a municipal corporation, direct- ing the performance of a duty incumbent upon the corporate authorities, while it is usual to direct the writ to the whole corporation, it is only necessary, in fact, that it should run to such of the corporate authorities as are concerned in the execu- tion of the thing required. Where, therefore, it is not in the power of others to put in execution the mandate of the writ, their omission will not be considered a misdirection. " And it has been held by the court of kings bench, that a mandamus to compel the election of a town clerk was bad, where it ran 'King V. Mayor of Kingston- * Opinion of Lord Ellenborough, upon-Hull, ll Mod. Kep. 383. in King v. Bishop of London, 13 ' See King v. Mayor of Kingston- East, 419. upon-Hull, 8 Mod. Rep. 209. « King ». University of Cam- ' Regina v. Mayor of Hereford, 3 bridge, 1 W. Black. 547. Salk. 701 ; King «. Justices of Not * Rex ii. Mayor of Abingdon, 2 tingham, 2 Barn. K. B. 56. Salk. 700. CHAP. IX.] OP THE ALTERNATIVE WEIT. 385 to the mayor, aldermen, and common council of the munici- pality, instead of to the mayor and aldermen only, in whom the right of election was.^ And the court will not compel a return to a writ thus misdirected, but will supersede the writ, as having been improvidently issued in the first instance.^ But where the alternative mandamus to elect and swear in a mayor of a municipality, is directed to the mayor and burgesses, commanding them to elect and swear in according to their authority, the direction wiU be held good, notwithstanding the power of election is in the burgesses alone, and the power of swearing in in the mayor alone, since something is required by the writ of each of those to whom it is directed. ^ It seems to have been the earlier English practice to direct the writ to the municipality, as a body politic, and by its corporate name, and a misdirection was formerly held sufficient ground for sustaining a motion to quash, as where the writ ran to the mayor and aldermen, instead of to the corporation eo nomine.^ In this country, however, the earlier English doctrine has not been followed, and it is regarded as correct practice to direct the writ to the mayor and aldermen of a city, as such, instead of to the body politic by its corporate name and title. ^^ § 544. In cases of mandamus to subordinate courts, to set them in motion and to compel action upon matters properly within their jurisdiction, on which it is their duty to act, it would seem to be correct practice to direct the alternative writ, either to the court as such, or to the individual judges of whom it is composed.* But the direction should be to the particular judge or judges of the court, where there are other judges authorized by law to hold the terms of the court, that it may be known against whom the authority to enforce obe- dience to the writ shall, if necessary, be exercised.'' ' Rex !). Mayor of Norwich, Stra. 3 Salk. 231. But see King n. Mayor 55 of Abingdon, Ld. Eaym. 559. a j^_ ' See Mayor v. Lord, 9 Wal. 409. 'King V. Mayor of Tregony, 8 « St. Louis County Courts. Sparks, Mod. Rep. 111. 10 Mo. 118. * Regina v. Mayor of Hereford, 3 ' HoUister v. Judges, 8 Ohio St, Salk. 701. See also King d. Taylor, 201. 25 386 MANDAMUS. [PAKT I § 545. Where tlie jurisdiction by mandamus is invoked against private corporations, to procure an inspection of their records by a person properly entitled thereto, the alternative writ should be directed to the actual custodian of the books and records, although he is merely a ministerial officer, acting under the direction and by the command of others. Thus,- where the writ is sought in aid of an inspection of the books of a banking incorporation, whose records and books are in the hands of the cashier, the writ should be directed to that officer, although he is subordinate to a board of directors. In such case, the general rule applies, requiring the writ to be directed to the particular person whom it is sought to coerce, and the cashier having charge of the books, his refusal to sub- mit them to inspection may be treated as his individual act, and the writ will, therefore, run to him in person, i It is proper, however, in such case, to direct the writ also to the board of directors, under whom the cashier acts.^ § 546. The mandatory clause of the alternative writ usually concludes with an alternative sentence, requiring the person to whom it is directed, in default of obeying the mandate, to show cause to the contrary, and this alternative clause is om of the distinguishing features between the form of the alter- native and the peremptory writs of mandamus. It would seem, however, that the omission of the alternative clause is not to be regarded as a fatal defect, and does not constitute sufficient ground for sustaining a motion to quash, the writ being mandatory and imperative in its terms, and it being the duty of the respondent, either to obey the mandate of the court, or to make return. ^ It is important to observe, how- ever, that the sufficiency of the writ is to be determined solely from its own contents, and any defects which may be apparent therein can not be supplied from the return.* ' People V. Throop, 13 Wend. 183. * Queen d. Hopkins, 1 Ad. & E. ' Id. N. 8. 161. " King V. Owen, 5 Mod. Eep. 814. CHAPTEE X. OF THE PBREMPTORT WRIT § 547. General nature of the peremptory writ. 548. Must conform to the alternative writ. 549. No return allowed. 550. Legal duty of respondeijt must appear; writ not granted upon incomplete record. 551. Failure to make return; insufficiency of return; act already per- formed. 553. Not issued on ex parte application ; when granted without alterna- tive writ. 553. Bule to show cause may take place of alternative writ. 554. Return to alternative writ, when taken as true. 555. Peremptory mandamus to judge to sign bill of exceptions. 556. Writ of error would not lie at common law; remedied by statute of Victoria. 557. Writ of error generally allowed in this country. 558. Peremptory writ vacated on ground of fraud. 559. Not granted non, obstante veredicto. 560. Rule where several defenses are joined in return. 561.. Certainty required in peremptory writ. 563. Right of amendment doubtful. 563. Writ refused notwithstanding verdict. 564. Form and contents determined by rules governing the alternative writ. § 547. The peremptory writ of mandamiis is the final or absolute mandate of the court, directing the performance of some official act or duty on the part of the respondent, upon his failure to make satisfactory return to the alternative writ previously granted. It is the final judgment in the proceed- ings, and sustains much the same relation to the alternative writ that a perpetual injunction does to a preliminary or interlocutory injunction, being the final assertion of the relator's right and of the respondent's duty. At the common ^3871 388 MANDAMUS. [pART I. law, the peremptory mandamus was granted only in the event of the return to the alternative writ being held insufficient upon its face. And if the respondent returned a sufficient cause to the alternative writ, even though false in fact, the court proceeded no further with the mandamus, but left the party injured to his collateral remedy, by an action on the case for a false return.* If, in such action, the return was falsified and the action sustained, the peremptory mandamus could not be refused. ^ But by the statute of Anne,* the prosecutor or relator was allowed in certain cases, and by a subsequent statute* in all cases, to plead to or traverse all or any of the material facts contained in the return, to which respondent might reply, take issue, or demur, whereupon such further proceedings were allowea as might have been had upon an action for a false return, and if the relator succeeded upon the issues joined, he was entitled to a peremptory man- damus forthwith. § 648. In its form and general features, the peremptory mandamus differs only from the alternative writ in the omission of the alternative clause, substituting therefor a per- emptory and absolute command, against which no cause can be shoAvn. And it is a well settled principle that the peremp- tory writ must conform strictly to the alternative mandamus, being necessarily limited as to form by the terms of the alter- native writ. In other words, the courts are powerless to award the peremptory writ of mandamus in any other form than that fixed by the alternative writ.' It follows, therefore, that if the alternative writ commands the doing of several things, it is incumbent upon the relator, in order to entitle himself to the peremptory writ, to show that he is entitled to the performance of all the things specified, and if he fails in any substantial part in establishing his title to any ' See 3 Black. Com. 111. Docks etc. R. Co. 3 El. & Bl. 466; '■ Buckley D. Palmer, 3 Salk. 430. Chance o. Temple, 1 Iowa, 179; ' 9 Anne ch. 20, sec. 3, see Ap- Price v. Harned, lb. 473 ; State «. pendix A. County Judge of Johnson Co. 13 ' 1 William IV. ch. 31. Iowa, 337. ' Queen v. East & "West India CHAP. X.] OF THE PEKEMPTOET WEIT. 389 of the things sought, there can be no peremptory mandamus. ^ And the proper order of the court upon the hearing of the application for the peremptory writ after the alternative writ has been granted, is, " let the writ be peremptory," or "per- emptory writ refused."^ § 549. From the nature and form of the peremptory man- damus, as above shown, it necessarily follows that there can be, strictly speaking, no such thing as a return to this writ, since it admits of no excuse, palliation, or denial, but abso- lutely requires the performance of the particular thing sought, and only a certificate of obedience to the writ and of what has been done in its execution is allowed.* And if the person to whom the writ is directed fails in this perfect and implicit obedience, he is liable to proceedings in attachment for a con- tempt of court.* It would seem, however, to be competent, upon proceedings in attachment, to urge any objections to the validity of the peremptory writ, and if sufficient objections are shown, obedience will not be enforced by attachment. ^ § 550. Before the peremptory writ will issue, the relator is bound to satisfy the court that there is a clear, legal duty incumbent upon the respondent, to comply with all the require- ments contained in the alternative writ." But where the facts upon which the alternative mandamus is based have all been passed upon by the court, and they are not denied or ques- tioned by the return, the return will be deemed insufficient, and the peremptory writ will be ordered forthwith.' It is to be observed, however, that a peremptory mandamus is never granted upon an incomplete record, and where the proceed- ings upon the alternative writ remain incomplete, it will be withheld until the whole record is brought before the court* § 551. The fact that the respondent fails to make return to ' Queen o. East & West India emptory writ and tlieir punishment, Docks etc. R. Co. 3 El. & Bl. 466. Chap. XI, post. . « Chance «. Temple, 1 Iowa, 179. ' Queen v. Ledgard, 1 Ad. & E. N. 3 3 Black. Com. Ill ; State v. S. 616. Smith, 9 Iowa, 334; Queen d. Led- « Queen ®. Caledonian R. Co. 16 gard, 1 Ad. & B. N. S. 616. Ad. & E. N. 8. 19. ■" 3 Black. Com. 111. And see, gen- ■> People v. Seymour, 6 Cow. 579. «rally, as to violations of the per- « Queen B.Baldwin, 8 Ad. &E. 947 390 MANDAMUS. [PAKT I. the alternative writ, does not necessarily entitle the relator to a peremptory mandamus without taking steps to enforce a return, and in some of the states it is held to be the better practice, in such case, to take the necessary steps to enforce a return before issuing the peremptory writ.* Nor is the issu- ing of the peremptory writ a necessary consequence of the respondent's return being insufficient, where such insufficiency is in the pleadings only, and not in the matter alleged. In such case it is held to be the better practice not to order the peremptory mandamus in the first instance, but to direct the filing of a fuller and more complete return. ^ And if it be shown that the act which it is sought to coerce has already been performed, the peremptory writ wiU not go, since if granted it would necessarily prove fruitless.' § 552. The person against whom the peremptory writ is sought, should always have an opportunity of being heard before such final relief is granted against him, and it is error to issue a peremptory mandamus upon an eae parte application.* And it is rarely issued without first granting the alternative writ, or a rule to show cause. Even under a statute expressly authorizing the issuing of a peremptory mandamus in the first instance, in cases where the right is clear and it is apparent that no valid excuse can be given for not performing the duty required, it is to be issued with great caution, and only upon a state of unquestionable facts, such as leave no room for doubt in the mind of the court. ^ But where the law fixing the duty in question is perfectly plain and free from doubt, and due notice has been given to all parties in interest, it has been held proper to grant the peremptory writ without having first issued an alternative mandamus.' And where a plain and imperative duty is incumbent by law upon public officers, ■ State V. Baird, 11 "Wis. 260. But benefit and convenience of the in People v. Judges of Ulster, 1 respondents. Johns. Rep. 64, it is said to be " State ■» Jones, 10 Iowa, 65. unnecessary to go through with the ' State «. Schofield, 41 Mo. 38. process and delay of rules and ■• Swan r>. Gray, 44 Miss. 393. attachments in order to compel a •■ Home Insurance Co. v. Scheffer, return, the alternative clause of the 12 Minn. 382. writ being regarded as for the « People v. Pearson, 1 Scam. 458. CHAP. X.] OF THE PEEEMPTOBY WEIT. 391 and the facts are not disputed, the court will not require the parties to go through with the form of an alternative man- damus, where they have been notified and have been heard by counsel, and the court is fully satisfied as to the legal duty.i So whei% a recorder of deeds has refused to record a deed properly acknowledged and entitled to record, which has been duly presented for that purpose, a peremptory writ has been allowed in the first instance. ^ § 553. A rule to show cause may properly take the place of the alternative writ, for the purpose of laying the founda- tion for granting a peremptory mandamus. And where the case has been fully heard upon the rule to show cause, and the facts of the case are sufficiently established, or the cause shown against issuing the writ is insuificient, there can be no impro- priety in allowing the peremptory writ in the first instance, especially where a delay might render the interposition of the court of no benefit to the party aggrieved, and the granting ' Commissioners of Knox Co. v. Aspinwall, 24 How. 376 ; Ex pa/rte Rogers, 7 Cow. 536. Commission- ers of Knox Co. V. Aspinwall, ■was the case of a mandamus to compel county commissioners to comply with the duty incumbent upon them hy law of levying a tax to pay a judgment against the county upon its bonds. The com- missioners had been served with notice of the motion for the writ, and appeared and contested the ap- plication. It was objected on writ of error that the peremptory writ was invalid for want of an alternative mandamus in the first Instance. The court, Mr. Justice Grier, upon this point, say: " It is no reason for setting it aside that a previous alternative writ had not issued. The notice served on the commis- sioners gave them every oppor- tunity of defense that could have been obtained by an alternative mandamus. There was no dispute about facts which could aflFect the decision. The court gave them an opportunity to comply with the de- mand of the plaintiff's ; their excuse for not doing so was, palpably, ' a mere colorable adjournment or pro- crastination of th^ performance of the act for the purpose of delay.' It is equivalent to a refusal. Hav- ing refused to perform the duty which the law imposed upon them on the proper day, without even the pretence of a reason for such con- duct, the peremptory mandamus was very pa)perly awarded, com- manding the duty to be performed forthwith." ' Ex parte Goodell, 14 Johns. Rep. 335. 392 MANDAMUS. [PAET I. of the peremptory mandamus, -without first having awarded the alternative vi^rit can not prejudice the parties in interest. * § 554. In several of the states the common law doctrine prevails, that upon the application for the peremptory man- damus, the facts embraced in the return to the alternative writ are to be taken as true, until proven false in an action for a false return. 2 The doctrine, however, is understood as apply- ing only to such facts as are relevant to the subject of inquiry before the court, and irrelevant facts will not be considered in the investigation. 3 In the states still adhering to this common law doctrine, the courts usually pass upon the case as presented by the alternative writ and the return, and investigate no ques- tions of fact other than as thus presented. If the return presents sufficient ground for withholding the peremptory writ, it is refused, otherwise it is granted.* And where a traverse is allowed, but the relator fails to traverse any of the allegations of the return, they are to be taken as true for ' People V. Throop, 13 "Wend. 183 ; People «. Breunan, 39 Barb. 522; People V. Assessors of Barton, 44 Barb. 148. People «. Throop, was a case where a peremptory man- damus was sought against the cash- ier of a bank, by one of its direct- ors, to compel the cashier to submit the discount book of the bank to his inspection. The court. Savage, C. J., were of opitiion that the rela- tor's right was too clear to admit of question, and that a rule to show cause having been issued, upon which the parties had been heard, the peremptory mandamus might go, without first requiring an alter- native writ. Upon this point it is said: "There can be no impro- priety in granting a peremptory wri*, in the first instance. The rule to show cause has performed the oflSce of an alternative writ. The game matter has now been presented to the court by affidavit, which would have come in the shape of a return to an alternative mandamus. A delay might render nugatory the whole proceeding as to the relator ; and granting the peremptory writ in the first instance can not preju- dice the defendant or the directors as to a review of a decision of this court. If it is desired, a record may be made up pro forma, and judgment rendered at the first term, so that the party defendant may bring his writ of error, if he be so advised. A peremptory mandamus is ordered." 'Board of Police v. Grant, 17 Miss. 77 ; Boaman v. Board of Police, 43 Miss. 237 ; Swan v. Gray, 44 Miss. 393; Carroll v. Board of Police, 28 Miss. 38; Commonwealtli v. Com. missioners of Lancaster, 6 Binn. 5. 2 Carroll v. Board of Police, 38 Miss. 38. ' Commonwealth v. Commission- ers of Lancaster, 6 Binn. 5. CHAP. X.] OF THE PEEEMPTOEY WEIT. 393 the purposes of the application for a peremptory mandanms, the relator being only entitled to the peremptory writ upon the ground that he has shown the return to be false, as if at com- mon law he had established its falsity in an action on the case for a false return, i So, where, in disposing of the application upon the answer to the rule to show cause, the court regards the answer as a return to an alternative mandamus, the effect of moving for the peremptory writ upon the pleadings, is to admit the truth of the matters contained in the answer. ^ § 655. The duty of the respondent to whom the alternative writ is directed, being to obey its mandate or show satisfactory cause to the contrary, the court will not permit him to ques- tion its power in place of rendering obedience to the writ. And where the alternative writ has issued, commanding the judge of an inferior court to sign and seal a bill of exceptions, but he refuses to make return thereto, and presents, in lieu of a return, an argument against the power of the court to take cognizance of the case, the peremptory mandamus will go.^ § 556. At common law, a writ of error would only lie upon a final judgment, or an award in the nature thereof, and the granting or refusing of a peremptory mandamus was not, prior to the statute of Anne, nor indeed under that statute, if dis- posed of in a summary manner, without plea or demurrer, def med a final judgment within the meaning of the rule, and hence error would not lie.* Neither the statute of Anne, ' Tucker «. Justices of Iredell, 1 gives a remedy where there is a Jones, 451. seeming probability for it, and it ' Board of Police ». Grant, 17 settles people in their possessions, Miss. 77; Beaman «. Board of Police, so that they may be able to defend 43 Miss. 237. their right, or, by virtue thereof, to ' People V. Pearson, 3 Scam. 189. bring any action for things inci- ' Rex 1). Dean & Chapter of Dublin, dent to the possession ; and if a writ Stra. 536 ; S. C. 8 Mod. 37. The re- of error should lie in such cases, it port of this case in 8 Mod. Rep. 37, would entangle all the public acts very clearly indicates the founda- of annual officers in most corpora- tion of the common law doctrine as tions and parishes. It is against stated in the text. It is as follows : the nature of a writ of error to lie " The court was of opinion that the on any judgment, but in causes right of any person was not to be where an issue may be joined and determined upon a mandamus. It tried, or where judgment maybe 394 MANDAMUS. [PAET I. nor the subsequent statute of William lY., extending its pro- visions,^ gave the relator the right of demurring to the return, in order that a decision as to its validity could be reviewed on error, but this omission was finally cured in England by the passage of an act allowing a demurrer to the return and judg- ment thereon, upon which error may be brought, and permit- ting any party to the record in cases of mandamus who shall think himself aggrieved by the judgment of the court to prosecute a writ of error, in like manner as in personal actions generally.^ § 557. In this country, the courts, almost without excep- tion, regard the judgment of an inferior court awarding or refusing a peremptory mandamus, after issue joined, as a final judgment, to which the writ of error will lie. Eut since the statute of Anne did not abrogate the summary common law procedure, upon the return alone without further pleadings, and since the relator is still at liberty to adopt the old method, and to insist upon a summary hearing without pleadings, it is held, where this course is adopted, that a writ of error will not lie, there being no record on which to base the writ. ^ In ISTew had upon a demurrer, and joinder of error would lie; but it was never in demurrer, and therefore it will yet determined that it would lie not lie on a judgment for a proce- upon a peremptory mandamus. dendo, nor on the return of an habeas And, therefore, it was resolved by em'pus. It is true, if the defendant the whole court that it would not in error liad traversed the return of lie. A writ of error was afterwards the dean and chapter to this man- brought on this judgment in the damns, as by the statute 9 Anne, c. house of peers, and the lord chief 30, he might, in such case the writ baron, who attended there, together of error would have been good, be- with seven other judges, acquainted cause then a final judgment might the lords in parliament, that all the be given; for upon the traverse of judges of England were of opinion the facts in the return, the other that a writ of error would not lie. side may take issue or demur; and And thereupon the judgment of the such proceedings might be had as court of kings bench was aflBrmed." if the prosecutor of the mandamus ' 1 Wm. IV. ch. 31. had brought an action on the case ' 6 & 7 Vict. ch. 67, see Appendix for a false return ; and if he had a B. verdict or judgment on a demurrer, ' People v. President and Trustees he shall recover his damages and of Brooklyn, 13 Wend. 130. Bosts, upon which judgment a writ CHAP. X.] OF THE PEEEMPTOEY WEIT. 395 York, while error will lie to the judgment of a court awarding the peremptory mandamus, ^ yet the writ of error is not allowed to operate as a sv/persedeas to stay the execution of the man- damus. ^ And in South Carolina, it is held that while an appeal will properly lie from an order allowing a peremptory mandamus, the appeal does not have the effect of a supersedeas, and the mandamus must still be executed. ^ In New Jersey, however, a rigid adherence to the common law riile is pre- served, and a writ of error to review the decision of an inferior court on the award of a peremptory mandamus, is refused on three grounds: first, because in that state the proceeding by mandamus is not regarded in the nature of a civil suit for the determination of a private right, but as the exercise of prerog- ative power; secondly, because the order awarding the writ is not in the nature of a final judgment, upon a question of right between the parties; and thirdly, because the common law rule denying the writ of error has never been changed in New Jersey, either by usage or statute.* § 558. "While, as we have already seen, no return is allowed to a peremptory mandamus, the courts exacting implicit and unquestioned obedience to the writ, yet it is competent for the court granting the peremptory writ to vacate or set it aside, where it was obtained through fraud or false representations on the part of the relator. Thus, where it had been agreed between the parties that no further proceedings in an action for mandamus should be had at that term of court, and the relator then employed other counsel and obtained a nrandamus, in disregard of the agreement, a motion to vacate the peremp- tory writ was sustained. 5 § 559. After the relator has pleaded to the return, taking issue upon all its allegations, and a verdict is' found against him, it is error to grant a peremptory mandamus, since a > See People «. Throop, 13 Wend. 250. 183. •' Layton «. The State, . 4 Dutch. ' People ». Steele, Edmond's Se- 575. lect Cases, 505. ' People v. Bveritt, Coleman & « Pinckney «. Henegan, 3 Strob. Caine, 149; S. C.l Caine's Kep. 8. 396 MANDAMUS. [PAET 1. judgment non obstante veredicto is not recognized in man- damus proceedings. When the relator has traversed the truth of the return, the granting of the peremptory writ is depend- ent upon a verdict in his favor, as v^as the case at common law in an action for a false return. And failing to obtain a verdict, he is not entitled to a peremptory mandamus. ^ § 560. Since it is competent for the respondent to present, in his return to the alternative writ, several different defenses, provided they are not inconsistent with or repugnant to each other, if he prevails on either of the grounds relied upon, the peremptory writ will be refused.^ These several defenses, however, should be consistent with each other, and if incon- sistent or repugnant the return may be quashed in toto, and the peremptory writ awarded.* § 561. Great particularity is necessary in stating in the peremptory writ the precise thing wliicli is required, in order that the respondent may be definitely apprised of all that he is commanded to do. And where a peremptory mandamus has been awarded to compel the treasurer of a school district to pay certain orders against the district, but the writ contains no description of the orders, either by number or amount, and this does not appear in any of the pleadings or other proceed- ings, the defect is fatal and will warrant the reversal of the judgment.* But where the writ is directed to public officers, commanding the performance of a public duty required of them by law, a reasonable degree of certainty in describiiig the thing to be performed is deemed sufficient, especially where the facts are within the personal knowledge of the officers to whom the writ is directed. ^ § 562. The authorities are not altogether reconcilable as to whether a peremptory mandamus may be amended, but the better doctrine seems to be, that no amendment should be allowed. In any event, a motion to amend and enlarge the ' People V. Board of Metropolitan 66. Police, 26 N. Y. 316. ' " State v. District Township of " Ex parte Selma & Gulf R. Co. Dubuque, 11 Iowa, 155. 46 Ala. 330. » People b. Nostrand, 46 N. Y. 873. . » King V. Mayor of York, 5 T. R. CHAP. X.] OF THE PEEEMPTORY WRIT. 397 peremptory writ, wliicli fails to point out specifically the par- ticulars in wliicli it is alleged to be defective, will be disre- garded, i And where the peremptory mandamus demands more than the relator is entitled to by his alternative writ, the better practice is, instead of allowing an amendment to the peremptory writ, to set aside the order granting it, and to allow the relator to amend the alternative writ, that he may then be entitled to a peremptory mandamus. ^ § 563. If the petition on which the mandamus is asked is insufficient, and fails to make out a 'prima facie case, the court will refuse the peremptory writ, notwithstanding the verdict of a jury finding the facts as alleged in the petition.^ And the action of the court in denying the peremptory mandamus in such a case, is analogous to that in arresting judgment in an ordinary action at law.* § 564. "With regard to the form of the peremptory writ and its contents, it is to be tested by the same general prin- ciples applicable in construing the sufficiency of the alternative mandamus, the principal diiference in form being the omission of the alternative clause in the peremptory writ. For these principles of construction, and the tests to be applied in deter- mining the sufficiency of the writ, the reader is referred to the preceding chapter. " ' State «). County Judge of John- ' People e. Commissioners of son, 13 Iowa, 237. Highways, 52 111. 498. ' Commissioners of Columbia «. * Id. King, 13 Pla. 451. ' See Chapter IX, amU. CHAPTEE XI. OP THE VIOLATION OF THE WKIT. § 565. Implicit obedience required ; violation punished by attachment for contempt. 566. Literal compliance not exacted. 567. Keversal by appellate court no justification; effect of injunction. 568. Irregularities do not justify violation. 569. Violation by judges of inferior courts; eflfect of resignation of judge. 570. Violation by corporation when personal notice dispensed with. 571. Quashing the writ, effect on proceedings in attachment. 572. Attachment allowed by kings bench for failure to make return. 573. Attachment against municipal officers for violation ; personal service not requisite. 574. Attachment directed to persons guilty of disobedience ; rule as to joinder of parties. 575. Injunction from state court no justification for violation of man- damus from federal court. 576. When rule to show cause dispensed with. § 565. The granting of the peremptory writ of mandamus, being the exercise of one of the highest powers vested in common law courts, implicit obedience is in all cases required to the mandate of the writ, and a violation thereof constitutes a gross contempt of the court out of which the writ issued. The usual process resorted to, both in England and America, for punishing persons who have been guilty of violating a writ of mandamus, is by proceedings in attachment against the offending party for contempt of court. * ' These proceedings are substantially the same as those resorted to for the punish- ment of any other contempt of court, and they are usually instituted upon sworn allegations setting up the fact of the ' See People ». Pearson, 3 Scam. 370. (398) CHAP. XI.J or THE VIOLATION. 399 violation, accompanied by a rule upon the offender to show cause why he should not be attached for a contempt of coart. Differences in the details of the practice upon proceedings of this nature exist in the different states, which need not be noticed here, it being presumed that each practitioner is sufficiently familiar with the rules of practice prevailing in his own state. § 566. In the first place, it may be observed, that a strictly literal compliance with the terms of the writ is not exacted, if it be apparent that it has been substantially complied with in spirit, and such a compliance with the material require- ments of the mandate of the court will exonerate the respondent from further responsibility. An attachment will not, therefore, be allowed upon the ground that the respondent has not himself done the act required to be performed, where it is shown by his return that the act commanded has been done, although it does not appear that it was done by the respondent in person.' And where a change has been made in the law requiring the performance of the particular act which has been commanded by mandamus, and the officer to whom the writ is directed, acting in good faith, and according to his best judgment as to the effect of such change in his legal liability, refuses further obedience to the mandamus, he should not be punished by attachment, even though mistaken in his judgment. In such case, a new application should be made for a mandamus, that a new decision may be had upon the facts and the law.^ And where, to an attachment for ' United States v. Kendall, 5 in the opinion awarding that writ, Cranch C. C. 385. that chap. 240, Laws of 1860, pro- ' State V. Harvey, 14 Wis. 151. By vided for an additional publication the court, PAtPTB, J. : " This is a of the laws in a newspaper to that motion for an attachment against provided for in sec. 17, chap. 6, R. the respondent, founded upon aflB- S., and did not interfere with the davits setting forth a refusal on his right of the person having the con- part to continue to comply with the tract for the state printing, to make peremptory writ of mandamus pre- the publication required by the lat- viously awarded by this court, ter section. It appears upon this requiring him to furnish to the re- motion, that the secretary of state lators copies of the laws for publi- obeyed the writ and furnished the cation in a newspaper. We held, relators copies of the laws,until said 400 MANDAMUS. [PAET refusing to obey a mandamus, tlie party attached shows that he is willing to comply with the mandate of the court, he will not be punished for disobedience, but he may still be compelled to do the act required by the writ.' § 567. Obedience to the writ is required during the entire time that it remains in force and unreversed by a higher tribunal, and the fact that the proceedings are subsequently reversed by an appellate court, affords no justification for a violation of the mandamus committed before such reversal. ^ Nor does it afford a sufficient excuse for failure to obey the writ, that since it was granted, the respondent has been enjoined in another court from .performing the act required, since a peremptory mandamus, when once issued, can not, like an ordinary execution upon a judgment at law, be staid by injunction, and to allow such interference would necessarily lead to a conflict of jurisdiction and interrupt the whole course of judicial proceedings.' section 17 was repealed by the legis- lature. He then ceased to furnish them, and this attachment is asked to compel him to continue. It was claimed by the counsel for the re- lators, that the decision awarding; the writ was conclusive upon the question now presented. But we think this is clearly not so. A de- cision requiring an officer to per- form some act which the law then enjoins upon him, can not have the effect of compelling him to con- tinue to perform that act after the law has ceased to require it. It is true that a question is made here whether the repeal of section 17 changes in any respect the rights of the relators ? But assuming that it did, so that if the writ should be now asked for the first time, it must be refused, the position certainly can not be correct that the court is required, by its former decision, awarding the writ when the relators were entitled to the copies, to con. tinue to compel the secretary to furnish them, though the relators no longer have any right to them. And however the question as to the effect of the change of the law upon their rights miglit ultimately be decided, we think it a sufficient answer to the motion for an attach- ment, to say that by the change of the law new questions were pre- sented which were not involved in the former decision, and that an officer acting in good faith, accord- ing to his best judgment, upon the effect of such change of the law, ought not to be punished by attach- ment, even if mistaken in his judg- ment; but the party should make a new application, so that a new de- cision might be made upon the facts and the law then existing." ' State V. Smith, 9 Iowa, 334. ' Kaye v. Kean, 18 B. Mon. 839. ' Weber v. Zimmerman, 33 Md. 45. CHAP. XI.] OF THE VIOLATION. 401 § 568. Mere irregularities in practice upon the granting of the peremptory writ, or even the fact that it was improvi- dently granted, will not avail as a justification of one who has violated its mandate. And it is therefore no sufBeient objec- tion to proceedings in attachment, that the court issued the peremptory mandamus before an alternative writ had been allowed. The peremptory writ having actually been allowed, and being a writ whose allowance is within the discretion of the court, its regularity can not be questioned by respondents after they have had an opportunity of being heard on the rule to show cause. 1 § 569. Wliere an inferior court has been directed by man- damus to restore certain cases which had been improperly dis- missed, and to proceed to judgment therein, and the judge of such court withholds judgment until the following term, while considering a motion for a new trial, he is not guilty of any such contempt as to warrant proceedings in attachment. ^ And where judges of an inferior court have rendered them- selves liable to attachment for contempt, in disregarding a mandamus, but it is apparent by their return that no inten- tional contempt was committed, instead of an attachment, an alias mandamus will issue.^ If a judge has already resigned his office, while it is true that he can not be required by man- damus to perform any judicial act connected therewith, yet if he had refused while still in office to do the act required by the ■ mandamus, as to sign a bill of exceptions, he may be punished by fine as for a high contempt of court, since the superior tribunal, having properly acquired jurisdiction over the respondent in the first instance, to compel him to perform the required act, can not be divested of its power to punish for contempt by his resigning the office.* And while it is conceded ' State v. Elkinton, 1 Vroom, 335. the attachment, and coercing the ° Expa/rte Bradstreet, 8 Pet. 588. defendant to sign the bill of excep- ^ Expa/rte Woodruflf, 4 Ark. 680. tions, it has no longer jurisdiction * People v. Pearson, 3 Scam. 270. over the person of the defendant, LocKwooD, J., for the court, says: because he had ceased to occupy "It is now, however, contended that the judicial station which he held whatever may have been the duty when attached. It is doubtless true of the court originally, in awarding that the defendant, being no longer 26 402 MANDAMUS. PART I. that one important object to be attained in punishing for the contempt, is to compel the party to perform the required act, it by no means follows, because this can not be attained, that no punishment should be inflicted. ^ But where it is sought to punish by attachment judges of an inferior court, who have refused to obey a mandamus directing them to sign a bill of exceptions, it should clearly appear by the affidavit on which the motion for attachment is based, that the persons who were served with the writ were the persons who should have sealed the bill, and where this does not appear nothing can be taken by the motion. ^ § 570. While it is generally requisite that personal notice of the issuing of the writ should be shown, in order to lay the foundation for proceedings in attachment against a corpora- tion for its violation, yet if a statute has dispensed with per- sonal notice, by requiring notice in writing to be posted in judge, can not be coerced to do an official act, or exercise a judicial function, and for such reason we have directed in the cause in which he, has refused to sign the bill of exceptions, that the bill should be considered a part of the record, but still it does not follow that because this court can not imprison the de- fendant until he shall sign the bill of exceptions, that it has no power to punish the defendant for his contempt of the law in his refusal to obey the writ. This court, hav- ing jurisdiction over the defendant while he was judge, to compel him to perform the required act for the purpose of enabling it to do justice betwecu the litigant parties, can not be di\ ested of the power to punish for contempt by the defendant's re- signing the office of judge. The offense being complete while he was juage, and subject to the authority of the court, no act of the party can release or bar the punish- ment. One object in punishing contempts by imprisonment, it is conceded, is to coerce the party to do the required act ; but because this object can not be obtained„it by no means follows that no pun- ishment should be inflicted. Pun- ishment looks to example as well as suffering. Both those objects are still attainable. * * * Every con- sideration of justice and a sacred regard to the maintenance of the supremacy of the law, solemnly admonish this court that those who violate its mandates must expect a punishment to be inflicted com- mensurate to the wrong done : but more especially should it take care that those to whom is committed the sacred duty of the execution of the laws, do not escape where they are themselves guilty of their in- fraction." ' People V. Pearson, supra. " People V. Judges of Washington, 2 Caine's Rep. 97. CHAP. 21.] OF THE VIOLATION. 403 some public place, such public notice in accordance witli the statute is Bl^&dent, prima Jhcie, to hold the members of the corporation. The rule to show cause why they should not be attached for contempt will therefore issue in such case, leaving respondents to show by way of excuse that they had not received actual notice of the writ, if such were the case.^ § 571. Where the writ has been granted to restore a minis- ter of an incorporated church to his pastoral office, but he is subsequently disqualified from holding his place, by the regularly constituted authorities of the church, such disquali- fication has been held a sufiicient cause for quashing the writ, and for discharging respondents from proceedings in attach- ment for its violation. 2 And it has been held competent, on proceedings in attachment, to urge any objections to the valid- ity of the peremptory writ, and if sufficient objections appear, obedience will not be enforced by mandamus. ^ § 572. Ordinarily an attachment for contempt issues only in case of violation of a peremptory mandamus, and the deci- sions to be found in the reports are chiefly with reference to such cases. It seems, however, to be the doctrine of the kings bench, that a failure to make return to the original, or to an dias mandamus, is such a contempt as to lay the foundation lor proceedings in attachment,* but that an attachment will .lot be granted in such case without a peremptory rule to leturn the alias writ.^ § 573. The jurisdiction by attachment, for contempt in violating or disobeying a mandamus, is extended to ofiicers of municipal corporations, who have been guilty of such viola- tion in their official capacity. And where municipal officers have disregarded a mandamus, directing them to assess and levy a tax, to provide for the payment of municipal bonds voted in aid of a subscription to a railway company, they may be punished by fine and imprisonment, as in other cases of ' King V. Edyrean, 3 T. R. 353. * See King v. Mayor of Fowey, 5 ' Weber v, Zimmerman, 33 Md. 45. Dow. & Ry. 614 ; Mayor of Coven- ' Queen t. Ledgard, 1 Ad. & E. N. try's case, 3 Salk. 429. S. 616. " Mayor of Coventry's case, supra. 404 MANDAMUS. [PAET I. contempt. 1 And in the case of mandamus to a municipal corporation, it would seem tliat personal service of the writ upon the corporate officers is not essential, to warrant proceed- ings in attachment for its violation. Tlius, where the writ was served upon a town clerk, but on no other officers of the corporation, an attachment was granted against the mayor and other corporate officers for failing to make return. ^ § 574. An attachment for contempt in violating or refusing to obey a peremptory mandamus, should be directed to all the persons guilty of disobedience to the mandate of the court. And where the peremptory writ has been granted against a board of canvassers of elections, composed of several distinct and independent officers, the mandate of the court extending to and covering them all, an attachment for violating the writ should include them all.^ It is not necessary, however, in proceedings by attachment for the violation of a mandamus, issued to a board of municipal officers composed of several different persons, to issue separate and distinct writs of attach- ment to each member of the board, the proper practice being to unite all the respondents in one attachment.* And if in such case separate writs have issued to the individual members of the board, the proceedings will be consolidated and con- tinued as a single attachment against the entire board. ^ § 576. Since the power of the federal courts is supreme, within the limits of their jurisdiction, and since, in cases of conflict between the federal and state tribunals, the latter must necessarily yield in matters resting within the jurisdiction of the former, it follows that it constitutes no sufficient justifica- tion for refusing to obey a mandamus regularly issued by a federal court in a matter properly presented for its adjudica- tion, that the parties to whom the writ is directed have been enjoined in the state courts from performing the act com- manded by the mandamus. Thus, where a circuit court of the ' Commonwealtli v. Taylor, 36 Pa. & Ry. 614. St. 263. See also United States v. ' State v. Smith, 9 Iowa, 334. Supervisors of Lee County, 2 Bis- ■■ Durant v. Supervisors of Wash- sell, 77. ington, Woolworth, 377. ' King V. Mayor of Powey, 5 Dow. • Id. CHAP. XI.] 01" THE VIOLATION. 405 United States has issued its mandamus to a board of county supervisors, directing them to levy a tax in payment of certain judgments, recovered in the circuit court against the county, upon its bonds issued in aid of railways, the supervisors can not take refuge from a violation of the mandamus, under a previous injunction from the state courts, restraining them from levying the tax, and they will be attached for contempt, notwithstanding such injunction. i ' United States v. Supervisors of Lee Oounty, 2 Bissell, 77, 1 Chicago Legal News, 131. The respondents in this case had been directed by mandamus from the circuit court of the United States, to levy a tax in payment of judgments upon certain railway aid bonds of the county in the federal court, the validity of which bonds had been originally sustained by the supreme court of Iowa, and by repeated subsequent decisions of the supreme court of the United States in conformity with the earlier Iowa decisions. Subse- quently the supreme court of Iowa reversed its rulings, holding the bonds invalid. No return was made by the board of supervisors to the peremptory mandamus, but upon the day of service of the writ upon the board, they adopted certain re- solutions reciting the service of the mandamus, and also the service of a previous injunction from the supreme court of Iowa, restraining them from levying the tax, and an- nouncing that they should abide by the Injunction and disregard the mandamus. Dktjmmond, J., in an exhaustive opinion, says: * * * " It would seem to need no argu- ment to show that the position taken by the board of supervisors of Lee county is unsound. If tena- ble, then the federal courts are en- chained by state authority and can not execute their own decrees. They act within the states and upon the people of the states. That is the very law of their being. But it is a fundamental principle that within their sphere they are supreme. Whether or not they are in the path pointed out by the constitution and law depends, by the very terms of the instrument itself, upon the ad- judications of the supreme court of the United States. Then, when that court, in a given case, has decided that the parties should obey the mandate of a federal court, state courts must yield. This has been the rule from the foundation of the government, and, therefore, in cer- tain controversies writs of error issue to the highest court of a state to revise its judgment or decree, under the twenty-fifth section of the judiciary act of 1789. It is upon tlie same principle that the act of March 2, 1833, 4 U. B. Statutes at Large, 6K4, was passed at the time of the South Carolina troubles. The' courts of the United States have constantly followed it since their organization. To take a very recent example : The bankrupt law of 1867, in various ways, interferes with the proceedings of the state courts. By what right ? By virtue of the power in congress to establish uniform 406 MAWDAMUS. [PAKT I. § 576. It seems to be the usual practice, both in England and America, to require service of a rule to show cause upon the respondents, before proceeding against them by attach- ment for a violation of the writ, and in ordinary cases this course should be pursued. Where, however, it is clearly apparent to the court, that the respondents have been guilty of a willful and deliberate violation of the mandamus, and that it is their settled purpose to continue in such violation, the rule to show cause may be dispensed with.* In such case, laws on the subject of bankruptcy. Whenever, in carrying out this power, the courts of the United States act upon the courts of the states, the latter must give way, and for the simple reason that the au- thority of the former is paramount. It must he so under our system, for it is very clear, if the doctrine now sought to be maintained by the de- fendants prevailed generally, the tie that binds the states, in the adminis- tration of justice at least, would be severed at once. What, therefore, the defendants are required to do in this case is nothing new. State courts and judges have done it often, and because they believed their oaths of office required it under the sixth article of the con- stitution, which declares that the laws of the United States ' made in pursuance thereof * * shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the con- stitution or laws of any state to the contrary notwithstanding.' The mandate issued from this court is a law to these defendants, expressly decided so by the supreme court of the United States. The judges of Iowa are bound to obey and respect it. On what higher ground can the board of supervisors of Lee county, in that state, place themselves to escape its binding obligation? It is the undoubted right of tlie courts of Iowa, in suits therein, to decide all legal questions properly coming before them under the constitution and laws of that state, and the par- ties thereto are concluded by such decision; but when they decide differently, in different cases, upon the same point, and the supreme court of the United States has adopted one course of decisions and rejected the other, neither the courts of that state nor the parties to con- troversies in the courts of the United States, can ignore or disregard the judgments of the federal courts, merely because they suppose the right ruling has not been followed." ' United States i>. Supervisors of Lee County, 2 Bissell, 77, 1 Chicago Legal News, 131. "The question has occurred," says Dkummond, J., "whether before a writ of attach- ment is ordered a rule to sliow cause should be served on the de- fendants. If it did not clearly ap- pear that the defendants had delib- erately taken their line and resolved to abide the results of a violation of the orders of the court, that course would be adopted. But it is plain from what has been stated that the only cause has already been CHAP, XI.] OP THE VIOLATIOK. 407 although the parties may disclaim any intention to commit a willful contempt of court, yet it appearing by their return that they have deliberately violated the mandate of the writ, and that they intend to continue the line of conduct adopted, in the future, a rule to show cause could serve no useful purpose, since the only cause which could be returned thereto has already been shown. ^ shown. And it would seem, there- fore, that a rule to show cause would serve no useful purpose. The object is to oblige the defendants to obey a lawful order of this court, and if they will do that, there is no desire to impose mere penalty. And besides, as parties to a suit in this court, on their own showing, they are guilty of contumacy. They allege, indeed, that they desire to obey all orders of the courts of the country, and do not wish to be in contempt of any, but an open, will- ful, deliberate violation of a lawful order of a court, duly served on a suitor, is itself a contempt, and, therefore, while they disclaim the wish to be in contempt, they ex- pressly admit they have committed it." ■ United States v. Supervisors of Lee County, supra. OHAPTEE XII. OF THE COURTS ENTRUSTED WITH THE JURISDICTION. § 577. The writ originally granted only by the kings bench. 578. Jurisdiction extended by statute to all superior courts in England. 579. No court in United States corresponding to the kings bench. 580. Courts usually fixed by constitution or statutes in this country. 581. The jurisdiction purely original ; how exercised by appellate courts. 583. Appellate courts may grant writ in aid of their appellate juris- diction. 583. Doctrine as between state and federal courts. 584. State courts will not grant writ to remove cause from state to federal court. 585. Nor will federal courts grant writ for such removal. 586. State courts may grant the writ in aid of decree or judgment of federal court. 587. Jurisdiction of United States supreme court by mandamus exer- cised only in aid of appellate powers. 588. Writ granted from supreme court of United States to inferior courts. 589. Circuit courts of United States devoid of original jurisdiction in mandamus. 590. But may grant the writ in aid of their existing jurisdiction. § 577. The use of the writ of mandamus as a judicial pro- cess or remedy, had its origin in the court of kings bench in England, and the exercise of the jurisdiction was formerly confined exclusively to that court. From a simple missive or mandate of the sovereign, issuing directly to the subject, the writ was gradually moulded and shaped into a judicial process of an extensive remedial nature, and freely granted by the kings bench, in the absence of other adequate and specific remedy. It was regarded as the especial province of the court of kings bench, to superintend all inferior tribunals through- out the kingdom, and to enforce at their hands the exercise of such judicial or ministerial powers as had been conferred (408) CHAP. XII.J or THE COURTS. 409 upon them by parliament or by tlie crown, and for this purpose the writ under consideration was regarded as the most effective remedy. 1 Deriving its origin directly from the king, sitting in his own court, the writ was always regarded, in England, as a high prerogative remedy, in distinction from an ordinary writ of right. And the jurisdiction is spoken of as one of the "flowers of the kings bench,"^ and was always jealously guarded by that tribunal. Being a court of very extended jurisdiction, entrusted with the superintendence of all civil corporations and inferior jurisdictions in the kingdom,^ it was natural that this extraordinary remedy shoidd be confined to this tribunal, and we accordingly find it shaped by the decis- ions of this court through several successive centuries, until it has attained its present symmetrical development, and is now recognized as the most effective of all the extraordinary remedies known to the common law. § 578. By the common law procedure act of 1864, the jurisdiction by mandamus in England, is extended to all the superior courts in the kingdom, which are authorized to grant writs of mandamus, in connection with or as ancillary to any civil action brought in such courts, excepting actions of eject- ment and replevin. The writ as thus issued is given the same force and effect as that of a mandamus from the court of kings bench, and the pleadings are assimilated, as nearly as possible, to those in ordinary actions for the recovery of damages. It is, however, expressly provided that the act shall in no manner impair or take away the jurisdiction of the court of kings bench to grant writs of mandamus, and the jurisdiction of that court, therefore, remains substantially unchanged, although the practice and procedure in mandamus cases are greatly changed.* § 579. As regards the courts properly empowered to grant this extraordinary remedy, in this country, it is to be observed in the first place, that, under the American system, no court, either state or federal, possesses the same general functions ' See 3 Black. Com. 110. = 3 Black. Com. 42. ^ Per DoDBRiDaE, J., in Awdley«i. * 17 & 18 Victoria, Chap. CXXV. Joy, Popli. 176. See Appendix C. 410 MANDAMUS. [PAET I. and jurisdiction as the court of kings bench, nor does any judicial tribunal known to our system, represent the sover- eignty of the country in precisely the same sense in which it is represented in England by the kings bench. And while this divergence between the judicial systems of the two nations, has in no manner impaired or altered the general remedial features of the writ of mandamus, which was transferred to this country as a part of the common law, it has yet had the effect of stripping the remedy of many of its purely preroga- tive features, and of reducing it more to a level with ordinary civil actions for the protection of private rights. ^ § 580. The courts empowered to exercise the jurisdiction by mandamus, in this country, are generally fixed by the con- stitutions of the various states, or by legislative enactment not inconsistent therewith. Usually the power is conferred upon the various common law courts of original and general juris- diction, such as the circuit or district courts throughout the various states, and in many cases the pleadings and procedure to be adopted by these courts in dispensing the remedy are also regulated by statute. The writ is also granted, in many of the states, by the supreme judicial tribunal or court of last resort of the state, in some instances as a part of its original jurisdiction, created and defined by the organic law of the state, and in other cases only in aid of its appellate powers. § 581. But in whatever courts the power of granting this extraordinary remedy may be vested, it is uniformly regai'ded as an original and not an appellate jurisdiction. And the writ itself is in no sense an appellate process, but purely an original one, not employed in the revision of a cause already adjudged, but itself originating a .cause. ^ It follows, therefore, that where the court of last resort of a state is limited, by the con- stitution of the state, to the exercise of an appellate jurisdiction only, it is powerless to grant the writ as an original proceed- ing, or to entertain jurisdiction in mandamus, except as a ' See § 5, ante. Hampton, 3 Hayw. (Tenn.) 59 ; State " Daniel i,. County Court ofWar- i. Biddle, 36 Ind. 138; Cowell ». ren, 1 Bibb, 496. See also King «. Buckelew, 14 Cal. 640. CHAP, XII.] OF THE COITETS. 411 necessary incident or appendage of its appellate powers. * And in such case, the legislature of the state, being equally bound with the courts by the constitution of the state, as the funda- mental and paramount law, can not confer upon the appellate court the power of granting the writ as an original proceed- ' Morgan v. The Register, Hardin (2nd edition), 618; Daniel «. County- Court of Wan-en, 1 Bibb, 496 ; How- ell V. Crutchfield, Hemp. 99. See also United States v. Commissioners of Dubuque, Morris, 42. In Mor- gan V. The Register, the nature of the jurisdiction as an original one Is very clearly stated by Edwakds, C. J., in the opinion, as follows: " By the constitution of this state, article four, section two, it is de- clared that 'the court of appeals, except in cases otherwise directed by this constitution, shall have ap- pellate jurisdiction only, which shall be co-extensive with the state, under such restrictions and regula- tions, not repugnant to this constitu- tion, as may from time to time be prescribed by law.' As this is not one of the cases excepted, it is necessary to show that it will be the exercise of an appellate jurisdiction, or of a necessary incident or ap- pendage to an appellate jurisdic- tion, in case the mandamus shall issue. What was or was not an ap- pellate jurisdiction was understood at and before the constitution was framed; to that meaning the con- stitution must have reference. Ours is a government organized by as- signing to the different departments their respective limits. That each department shall be confined within those limits, is essential to the na- ture and existence of the govern- ment. That the constitution is supreme, and controls and binds down every department, is one of those plain propositions no longer contested among those who regard the principles upon which written constitutions are constructed. By the same rule, therefore, by which the legislature would be restrained from giving to this court a jurisdic- tion not warranted by the constitu- tion, this court must feel restricted from the exercise of such jurisdic- tion. If the issuing the mandamus is an original, and not an appellate jurisdiction, this court has not the right to issue it, and the legislature can not give it, they being equally bound by the constitution as the fundamental and paramount law, controlling every legislative act which is repugnant to it. It is a primary essential to appellate judi- cial jurisdiction, that it should be the revision and correction of a judicial decision. * * No anal- ogy can be drawn from the exercise of the power to issue writs of man- damus by the court of kings bench, in England. Thatcourt had original as well as appellate jurisdiction; it was an emanation from the king's prerogative, and the writ of man- damus was a prerogative writ. That court had original jurisdiction over all capital offenses, all other mis- demeanors of a public nature tend- ing to a breach of the peace, to op- pression, or faction, or any manner of misgovernment ; and it is not material whether such offenses, being manifestly against the public 412 MANDAMUS. [PAET I. ing.i So where the court of final resort of a state is vested only with appellate powers, it can not grant a mandamus to a subordinate court, requiring it to proceed with a cause pend- ing therein, since such a use of the writ is not a necessary adjunct to the discharge of the functions of the court as a purely appellate tribunal, and would be the exercise, not of an appellate, but of an original jurisdiction. ^ JS'or will a court of appellate powers, which is restricted, by the organic law of the state, to the granting of such writs only as are necessary to the exercise of its appellate jurisdiction, issue a mandamus to the officers of a subordinate court, to compel any official action at their hands, but will leave the parties aggrieved to seek a remedy ia the inferior court itself § 582. The doctrine as above stated, however, in no manner impairs the right of the courts of final resort to issue the writ, where necessary in aid of their appellate powers, and in such cases the proceeding by mandamus is not regarded as an original one, but as auxiliary to and in aid of the appellate jurisdiction, with which they are properly vested.* For good, directly injured any particular jurisdiction to this court to issue a person or not. Far different and mandamus before the case had been more limited is that jurisdiction decided on, or presented to a subor- ■whloh is ' appellate only.' And so dinate court ; and that the constitu- was it wisely established by the tion, the supreme law of the land, framers of the constitution; other- prohibits the exercise of original wise, that court, which is to give jurisdiction, except in some cases, light and direction to all the other as specified therein (of which this tribunals of justice, might, from the is not one); so neither can we con- multiplicity of suits, become only sent to assume a jurisdiction in de- the grave, instead of being the soul fiance of that instrument by which of justice. The nature of its appel- we are bound, and which we are late jurisdiction was presented for sworn to support." consideration to this court in the ■ Morgan «. The Eegister, supra. case of Smith v. Carr, etc., ante, 313, ' King v. Hampton, 3 Hayw. decided at this term. There the (Tenn.) 59 ; State v. Biddle, 36 Ind. court had occasion to take notice 138. See also Cowell v. Buckelew, of some former precedents, and the 14 Cal. 640. reasons for overruling them. We ' Cowell «. Buckelew, 14 Cal. 640. can only add that, as we are firmly * United States v. Commissioners persuaded that the legislature have of Dubuque, Morris, 43; State «. not given, and could not give, the Hall, 3 Cold. 355. CHAP. XII. J OF THE COURTS. 413 example, a court of purely appellate powers may, in aid of its appellate jurisdiction and as a necessary incident to its exer- cise, grant the writ to a subordinate court, requiring it to sign and seal a bill of exceptions in a cause pending in the appel- late tribunal on appeal, in order that the record may be com- plete, the use of the writ in such a case being necessary to perfect the right of the appellant, and a proper adjunct of the powers of the appellate court, i § 583. Questions of grave importance have frequently arisen, and must necessarily occur under the American sys- tem, touching the relative powers and jurisdiction of the federal and state courts, and the right of the judicial power of the one sovereignty, to control by mandamus the action of tribunals or officers deriving their powers from the other. In such cases, both the state and federal courts are usually averse to granting this extraordinary remedy, where its eifect would be to control a person or body owing allegiance to the other jurisdiction, preferring to leave the controversy to be deter- mined in the forum to which it more properly belongs. Indeed, as regards officers of a state, deriving their powers wholly from the state, it may be asserted, generally, that they are beyond the jurisdiction of the federal courts by the writ of mandamus, as an original process, although, as we shall hereafter see, these courts may in some cases grant the writ to state officers in aid of an already acquired jurisdiction of the federal tribunals. And the supreme court of the United States can not grant the writ against the governor of a state, even for the performance of a duty clearly obligatory upon him by the constitution and laws of the United States, such as the delivery up to another state, upon proper demand, of fugitives from justice.^ § 584. The right of removal of a cause from the state to the federal courts, by a non-resident defendant sued in the former, has afforded frequent occasion for invoking the extra- ordinary aid of both the state and federal tribunals. And the doctrine has been asserted, that the superior courts of the • State «. Hall, 3 Cold. 355. And Helskell, 787. see State ■». Elmore, 6 Cold. 528 ; ' Commonwealth v. Dennison, 24 Newman «. Justices of Scott Co, 1 How. 66. 414 MANDAMUS. [PAET I. different states might properly grant the writ to subordinate state courts to compel such removal, where it had been refused, on proper cause shown in conformity with the twelfth section of the judiciary act of 1789. ^ The better considered doctrine, however, and one which has the support of the undoubted weight of authority, is, that the appellate courts of the differ- ent states can not grant the writ to subordinate tribunals, to control, or in any manner interfere with their action upon such applications for removal, such a use of the writ being regarded as an abuse of its recognized functions.'^ A distinc- tion, however, is taken in such cases, between the refusal of a state court to order the removal of a cause to the federal tribunal, upon proper cause shown, and its refusal to accept of surety tendered for such removal. And in the latter case, the superior court of the state may grant the writ to an inferior court, commanding it to accept of the surety tendered.* § 585. A similar conflict of authority to that noticed in the previous section, has existed as to the right of the federal courts to issue the writ of mandamus to the various state courts of general jurisdiction, for the purpose of compelling the removal of a cause pending therein to the federal tribunal, and the existence of such a power in the circuit courts of the United States, has been asserted as necessary to the proper exercise of their jurisdiction.* This conflict of authority, however, has been set at rest by recent decisions of the federal courts, denying the jurisdiction in this class of cases, and it may now be regarded as the settled doctrine, that they will not issue the writ to compel state courts to transfer causes to the federal tribunals. And, although it is believed to be within ' See Brown v. Crippin, 4 Hen. & Jackson Circuit Court, 21 Mich. 577. M. 173 ; State v. Judge of Thirteenth ' State v. Court of Common Pleas, District, 23 La. An. 29; Orosco v. 15 Ohio St. 877. Gagliardo, 22 Cal. 83. * Spraggins v. County Court of = Francisco v. Manhattan Insu- Humphries, Cooke, 160; People v. ranee Co. 36 Cal. 383; Shelby v. Judges of New York Common Hoffman, 7 Ohio St. 450 ; State v. Pleas, 2 Denio, 197. See also opi Curler, 4 Nev. 445; People v. Judges nion of Campbbll, J., in People v of New York Common Pleas, 3 Judge of Jackson Circuit Court, 21 Denio, 197 ; People v. Judge of Mich. 577. CHAP. XII.] OP THE COURTS. 415 the power of congress to confer snch a jurisdiction upon the circuit courts of the United States, yet these tribunals are powerless to grant the writ in such cases, either under the judiciary act of 1789, or under the act of 1866, ^ providing for the removal of cases from the state to the federal courts, upon proper cause shown. ^ § 586. It is proper, however, for the state courts to grant the writ of mandamus in aid of a decree rendei'ed in the fed- eral courts, where an appropriate case for the exercise of the jurisdiction is presented. ^ And the state courts will issue the writ to the authorities of a municipal corporation, for the purpose of compelling the levy of a tax, to satisfy a judgment recovered against the municipality in the courts of the United States.* So, too, a state court may properly grant the writ against a county treasurer, to enforce the performance of his duty in the payment of a judgment, out of funds collected for that purpose, although the judgment was recovered in the United States courts. ^ § 587. The jurisdiction of the supreme court of the United States, by the writ of mandamus, is limited, imder the con- stitution, to cases where its exercise is necessary in aid of the appellate powers of the court, and it can not grant the writ as the exercise of an original jurisdiction. The constitution having limited the original jurisdiction of this court to " cases aifecting ambassadors, other public ministers and consuls, and those in which a state shall be a party," ^ and having expressly declared that, in all other cases, it shall exercise only an appelr late jurisdiction,' it is powerless to grant the writ, except in cases where it is necessary to the proper exercise of its appel- late powers. 8 Nor is it competent for the legislative depart- ment of the government to extend this jurisdiction, beyond ' 14 IT. S. Statutes at Large, 306. * State v. City of Madison, 15 Wis. '' Hough V. "Western Transporta- 30 ; State v. Supervisors of Beloit, tion Company, 1 Bisbell, 425 ; In re 20 Wis. 79. Cromie, 2 Bissell, 160; Ladd v. Tu- " Brown ». Crego, 32 Iowa, 498. dor, 3 W. & M. 326. « Const. Art. Ill, Sec. II. = Conrad v. Prieur, 5 Rob. La. 49; ' Id. Benjamin v. Prieur, 8 Rob. La. 193; " Marbury v. Madison, 1 Cranch, Diggs V. Prieur, 11 Rob. La. 54. 49. 416 MANDAMUS. [part I. the limits fixed by the constitution, and that portion of the judiciary act of 178 9/ which attempts to confer upon the siipreme court the power to issue writs of raandamus to per- sons holding office under the United States, is plainly repug- nant to the constitution. This court will not, therefore, issue the writ to the secretary of state of the United States, even to command the performance of a clear and imquestioned duty on the part of that officer, ministerial in its nature and involv- ing the exercise of no official discretion.^ ' 1 U. S. Statutes at Large, 73. ' Marbury v. Madison, 1 Cranch, 49. The limits to the jurisdiction of the supreme court, in cases of mandamus, are very clearly defined in this case, which was an applica- tion to the court for a rule against the secretary of state, to show cause why a mandamus should not issue, commanding him to deliver to the relators their commissions, as jus- tices of the peace for the District of Columbia. Marshall, C. J., for the court, says : " The act to estab- lish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts ap- pointed, or persons holding office, under the authority of the United States:' The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description ; and if this court is not authorized to issue a writ of man- damus to such an officer, it must be because the law is unconstitutional, and, therefore, absolutely incapable of conferring the authority, and as- signing the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is , expressly extended to all cases arising under the laws of the United States, and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States. In the distribution of this power, it is declared that 'the supreme court shall have ori- ginal jurisdiction in all cases'affeot- ing ambassadors, other public min- isters and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.' It has been insisted at the bar, that as the origipal grant of jurisdiction to the supreme and inferior courts is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or re- strictive words, the power remains to the legislature to assign original jurisdiction to that court, in other cases than those specified in the article which has been recited, pro- vided those cases belong to the judi- cial power of the United States. If it liad been intended to leave it in the discretion of the legislature to apportion the judicial power be- tween the supreme and inferior OHAP. XII.] OF THE 00UET8. 417 § 588. The aid of the supreme court of the United States has seldom been invoked for the issuing of writs of mandamus to inferior courts. It has, however, granted the writ to a dis- trict court of the United States, to compel the latter to execute courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals In which it should be vested. The subsequent part of the section is mere surplus- age, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original, and original jurisdiction where the constitution has declared it shall be appellate, the distribution of juris- diction made in the constitution is form without substance. AflBrma- tive words are often, in their opera- tion, negative of otlier objects than those aflBrmed; and in this case, a negative or exclusive sense must be given to them or they have no opera- tion at all. It can not be presumed that any clause in the constitution is intended to be without eifect, and therefore such construction is inad- missable, unless the words require it. If the solicitude of the conven- ' tion, respecting our peace with for- eign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been in- tended. That they should have ap- pellate jurisdiction in all other cases, with such exceptions as con- 27 gress might make, is no restriction, unless the words be deemed ex- clusive of original jurisdiction. When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legisla- lature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court, by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not ap- pellate; in the other it is appellate and not original. If any other con- struction would render the clause inoperative, that is an additional reason for rejecting such other con- struction, and for adhering to tlie obvious meaning. To enable this court, then, to issue a mandamus, it • must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original. It is the essential criterion of appel- late jurisdiction, that it revises and corrects the proceedings in a cause 418 MANDAMUS. [PAKT I. its decree, whicli a state legislature had attempted to annul. ' And the writ has also been granted by the supreme court, to the United States court of claims, requiring the latter to hear and determine a motion for a new trial.^ So mandamus has been granted by the supreme court, to a district court of the United States, to compel the latter to reinstate a case, which it had dismissed on the ground that the pleadings did not dis- close the value of the matter in dispute, thereby failing to present a case falling within the jurisdiction of the district court. ^ § 589. As regards the jurisdiction of the circuit courts of the United States in mandamus, it is to be observed that their power to grant the writ is limited, under the judiciary act of 1789, to cases where it is necessary to the exercise of their general jurisdiction as conferred by law. In other words, the fourteenth section of the act of 1789, authorizing these courts to issue " writs of SGvre facias^ habeas corpus, and all other writs Tiot specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law," is construed as a limitation upon the power of the circuit courts over the writ of mandamus, confining it solely to cases where the writ is sought as ancillary to a jurisdiction already acquired. They will not, therefore, entertain proceedings in mandamus, or grant the writ, in any case where it is not a necessary adjunct to the exercise of a jurisdiction which they already possess.* already instituted, and does not lishing the judicial courts of the create that case. Although, there- United States, to issue writs of fore, a mandamus may be directed mandamus to public officers, ap- to courts, yet to issue such a writ to pears not to be warranted by the an officer for the delivery of a paper, constitution." is in effect the same as to sustain an ' United States v. Peters, 5 Oranch, original action for that paper, and 115. therefore seems not to belong to ap- " Ex pairte United States, 16 Wal. pellate, but to original jurisdiction. 699. Neither is it necessary, in such a ' Ex pa/rte Bradstreet, 7 Pet. 634 case as this, to enable the court to See S. C. 8 Pet. 588. exercise its appellate jurisdiction. * Mclntire v. Wood, 7 Cranch, 504 The authority, therefore, given to Smith v. Jackson, 1 Paine, 453 the supreme court, by the act estab- Bath County v. Amy, 18 Wal. 345 CHAP, XII.J OP THE COURTS. 419 And thfe same restrictioii applies to the district courts of the United States, and these courts can not grant the writ as the exercise of an original jurisdiction, but only in aid of their existing powers as conferred by law.* The authorities, how- ever, clearly recognize the judicial power of the government to extend the remedy by mandamus to its own officers, treat- ing it as a dormant power, not yet called into action or con- ferred upOn the circuit courts. ^ § 590. Where, however, the circuit courts of the United States have properly acquired jurisdiction of a subject, and the aid of a mandamus is necessary to enable them to properly Graham v. Norton, 15 Wal. 42'?. Molntil-e D. Wood is the leading Case in support of the doctrine of the text. The opinion of the court, by Mr. Justice Johnson, is as fol- lows : " I am instructed to deliver the opinion of the court in this case. It comes up on a division of opinion in the circuit court of Ohio, upon a motion for a mandamus to the regis- ter of the land office, at Marietta, commanding him to grant final cer- tificates of purchase to the plaintifi', for lands to which he supposed himself entitled under the laws of the United States. This court is of opinion that the circuit court did not possess the power to issue the mandamus moved for. Independ- ent of the particular objections which this case presents, from its involving a question of freehold, we are of opinion that the power of the circuit courts to issue the writ of mandamus, ia confined exclusive- ly to those cases in which it may be necessary to the exercise of their jurisdiction. Had the eleventh sec- tion of the judiciary act covered the whole ground of the constitu- tion, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising undei: laws of the United States, and the four- teenth section of the same act would sanction the issuing of the writ for such a purpose. But al- though the judicial power of the United States extends to cases aris- ing under the laws of the United States, the legislature have not thought proper to delegate the ex- ercise of that power to its circuit courts, except in certain specified cases. When questions arise under those laws in the state courts, and the party who claims a right or privilege under them is unsuccess- ful, an appeal is given to the su- preme court, and this provision the legislature has thought suflScient, at present, for all the political pur- poses intended to be answered by the clause of the constitution which relates to this subject." ' United States v. Smallwood, 1 Chicago Legal News, 321, decided in U. S. district court for Louisiana. " See Mclntire v. Wood, 7 Cranch, 504; McCluny«. Silliman, 2 Wheat. 369 ; McClung v. Silliman, 6 Wheat. 598; Kendall ». The United States. 12 Pet. 534; Marbury ». Madison, 1 Cranch, 49. 420 MANDAMtrs. [part I. carry out their jurisdiction, and to afford the necessary relief to which the parties are legally entitled, the right to issue the writ is regarded- as clearly established, the authority of the courts, in such cases, being derived from the fourteenth section of the act of 1789, already referred to. Cases of this nature have frequently occurred, where the aid of mandamus has been sought, to compel municipal corporations to provide for the payment of judgments upon municipal bonds and securi- ties, issued in aid of railway and other kindred enterprises of a quasi-public nature. And the doctrine is clearly established, that where such judgments have been recovered in the circuit courts of the United States, these tribunals may issue writs of mandamus, to compel the municipal authorities to levy a tax in satisfaction of the judgments, the writ being regarded as the only remedy, within the constitutional powers of the fed- eral courts, adequate to such an emergency. * ' Commissioners of Knox Co. b. Des Moines Co. Woolworth, 313. Aspin-wall, 24 How. 376 ; United See also United States v. Supervisors States V. Treasurer of Muscatine of Lee Co. 2 Bissell, 77, 1 Oliicago Co. 2 Abb. U. S. 53 ; S. C. sub nom. Legal News,121 ; Rees v. City of Lansing v. County Treasurer, 1 Dill. Watertown, Supreme Court of C. C. 522; Welch v. St. Genevieve, United States, 6 Chicago Legal lb. 130 ; Rusch t. Supervisors of News, 231. PAKT II. QUO WARRANTO, PROHIBITION. THE LAW OF QUO WARRANTO OHAPTEE XIII. OF THE ORIGIN AND NATURE OF THE JURISDICTION IN quo WARRANTO. § 591. Information in the nature of a quo warranto defined. 593. Tlie common law writ of quo warranto. 593. Ancient origin of the writ. 594. The statute of Gk woester, t3 Ed ;yard I. 595. Causes leading to the passage of the statuta. 596. Effect of the statute ; not wholly satisfactory. 597. Statute of 18 Edward I. 598. These statutes not the origin of writs of quo warranto. 599. Disuse of ancient writ on aholifion of justices in eyre. 600. Causes for disuse of the former remedy. 601. Growth of the jurisdiction by information in England; its abuse; case of the city of London. 603. Information a prerogative remedy before statute of Anne ; purpose and effect of that statute. 603. The original writ a civil remedy; the information formerly a criminal, now a civil remedy. 604. The information does not create rights ; nor does it prescribe duties. 605. Leave to file the information discretionary with the court; circum- stances which may be considered. 606. Eflect of statute as to discretion ; discretion exhausted when information filed. 607. The doctrine in Alabama as to discretion. 608. Two classes of informations in England. 609. Writs of quo warranto and informations confused ; object the same. f423) 424 QUO wakrajstto. [part II. 610. Authorities conflicting as to use of tlie two terms; held synony- mous in "Wisconsin. 611. The same docti-ine held in Florida. 613. The doctrine in Missouri ; original writ still recognized. 613. The distinction observed in Arkansas. 614. Statutory remedy in Pennsylvania. 615. Constitutional jurisdiction not to he taken avray by legislation. 616. The courts exercising the jurisdiction. 617. Information does not lie where other remedy exists. 618. Does not lie for official misconduct. 019. Jurisdiction in quo warranto a bar to jurisdiction in equity. 620. Public interest must be shown. 621. Statute of limitations. 622. Statutes to be construed as remedial. § 591. The modern iuforrnation in the nature of a quo warranto may be defined as an information, criminal in form, presented to a court of competent jurisdiction, by the public prosecutor, for the purpose of correcting the usurpation, mis- user, or non-user of a public office or corporate franchise. The object of the information, as now employed both in the courts of England and America, is substantially the same as that of the ancient writ of quo warranto, and though still retaining its criminal form, it has long since come to be regarded as, in substance, a civil proceeding, instituted by the public prose- cutor, upon the relation of private citizens, for the determination of purely ciyil rights. The use of the quo warranto informa- tion having entirely superseded the original writ in England, as well as in most of the states of this country, and the objects to be attained by the modern remedy being identical with those secured by the ancient writ, a brief sketch of the func- tions of the former remedy and of its growth, development, and decline, is necessary to a proper understanding of the remedy which has taken its place. § 592. The ancient writ of quo warranto was a high preroga- tive writ, in the nature of a writ of right for the king, against one who usurped or claimed any office, franchise or liberty of the crown, to inquire by what authority he supported his claim, in order to determine the right. It was also granted as a corrective of the mis-user, or non-user of a francliise, and commanded the respondent to show by what right, ^^qiio warranto^'' he exer- CHAP. 2III.J OF THE JTJBI8DICTI0K. 425 cised the franchise, having never had any grant of it, or hav- ing forfeited it by neglect or abuse, i Being an original writ, it issued out of chancery, and was directed to tlie sheriff, com- manding him to summon the respondent to appear before the king's justices at Westminster. Afterwards, by virtue of the statutes of quo warranto, ^ the writ was made returnable before the king's justices in eyre, and the respondent was commanded to appear before the king or these justices when they should come into the county, to show by what warrant the office or franchise in question was exercised. The justices in eyre having been displaced by the jiidges on the several circuits, the proceedings were again remanded to the king's justices at "Westminster, and the original writ gradually fell into disuse. ^ § .593. The origin of the writ may be traced to a very early date in the history of the common law. The earliest case upon record is said to have been in the ninth year of Richard I., A. D. 1198, and was against the incumbent of a church, calling upon him to show quo warranto he held the church.* It was frequently employed during the feudal period, and especially in the reign of Edward I., to strengthen the power of the crown at the expense of the barons. Indeed, to such an extent had the encroachments of the crown been carried, that, prior to the statutes of quo warranto, the king had been accustomed to send commissions over the kingdom to inqtiire into the title to all franchises, quo jure et quove nomine ilU retinerent, and the franchises being grants from the crown, if no siifficient authority could be shown for their exercise, they were seized into the king's hands, often without any judicial process.^ These encroachments of the royal prerogative having been limited and checked by statute, resort was then '3 Black. Com. 363, And see » 6 Bdw. I. ch. 3 ; ISBdw.I. st. 3. Commonwealth ». Small, 26 Pa. St. See Appendix D, E, post. 31; State v. Aslilej', 1 Ark. 279; = See 8 Black. Com. 262; State v. Com. Dig. Quo "Warranto (A). In Stewart, 32 Mo. 379. the code of practice of Louisiana, ' See opinion of Lord Chief Jus- article 828, the writ of quo warranto tice Tindal, in Darley v. The Queen, as used in that state is defined as 13 CI. & Fin. 520. an "order of which the object is to ' See 2 Inst. 280. prevent a usurpation." 426 QtrO WAEBANTO. [PAET II. had to the original writ of quo warranto. Indeed, both the original writ and the information in the nature thereof were crown remedies, and though often unreasonably narrowed in the hands of weak princes, they were always recognized as of most salutary eifect in correcting the abuse or usurpation of franchises. 1 § 694. By the statutes of quo warranto, ^ to which allusion has already been made, the encroachments of the crown were much restricted, and an examination of the provisions of these ' See opinion of Mr. Justice CowEN in People v. Bristol & Rens- selaerville Turnpike Co. 23 Wend. 222. " In times of feudal barbarity," says the learned Judge, " which, ac- companied and followed for many years the overgrown power of the nobles, there was constant occasion to apply the corrective of the quo warranto. It was the only eflfeotiial remedy, even if it could be called a remedy in itself ; for monopolies had become so numerous, and so fortified by interest and power, that the application of the writ de- pended in greater measure on the personal character of the prince than moral submission to the law. This was especially so when the writ was brought to bear upon manorial claims residing in the hands of the barons or lords either temporal or spiritual. Looking at Keilway's reports of ' cases in eyre, in time of the very memorable king Eichard the Third,' fol. 137 to 152, one would be led to believe that a good deal of his reign was devoted to this sort of judicial contest with his nobles. Indeed his predecessor, Edward the First, had found single writs too slow, and caused a statute to be passed under which his noble- men were called by proclamation, and obliged to come by squadrons before his immediate court or his justices in eyre whenever they en- tered the county. 2 Reeves' Hist. 220. Dubl. ed. 1787; Com. Dig. Quo Warranto (C. 2); Crabb's History of Engl. Law, 174, 5. This bearing too much the appearance of plun- der, another statute was passed, somewhat moderating the preced- ing, and bringing it back to about the common law course. 2 Reeves' Hist. 231; Crabb, supra. This is the statute on which Sir Edward Coke has furnished us with a labored commentary in his 2 Inst. 294. Still, as appears from tlie his- tory of the times, the vsrrit continued to be a very common resort, and to have been almost avowedly used to strengthen the crown at the expense of the barons. It was sometimes extended even to lands, though Coke showed that its proper ofiBce respected franchises only." Al- though the strictures of the learned justice upon the first statute of quo warranto, that of 6 Edw. I. c. 2, are hardly justified by a perusal of that statute, yet, in the main, his observa- tions upon the origin and nature of the remedy are deserving of atten- tion. = 6 Edw. I. ch. 2; 18 Edw. I. st. 2. See Appendix D, E, post. CHAP. XIII.] OF THE JITRISDIOTIOW. 427 statutes is necessary to a correct understanding of the history of the jurisdiction in quo warranto. The statute, 6 Edward I., commonly known as the statute of Gloucester, from the place where parliament then sat, and which was enacted in the year 1278, provided that all persons should enjoy their fran- chises, for the examination of which a day had been already ■fixed, until the coming of the king or his justices in eyre, before whom a quo warranto lay. As to all other persons the sheriff was required to make proclamation forty days before the coming of the justices in eyre, that aU those who held liberties or franchises should appear before the justices, and show " quo warranto " they held them. If any party failed to appear, his franchise was seized into the king's hands until he should appear, nomine distrietionis, and replevy the franchise, which he might do at any time while the eyre sat in that county, in default of which his franchise was forever forfeited. If any one appeared and objected that he was not bound to answer without an origiaal writ, the inquiry then was, whether he had usurped his franchise, and if this were shown he was required to answer immediately, without any original writ. If it were found that his ancestor died seized of the franchise, an original writ was issued commanding him to appear " in proximo adventu nostro, vel coram' justicianis nostris ad ppoximam, assisam cwn in partes illas venervnt, Qstensurvs quo warranto tenet" etc. To this writ the party made answer, and replication and rejoinder followed. The statute also allowed the respondent such reasonable delay as might be granted in the discretion of the justices, as in ordi- nary personal actions.* § 596. Lord Coke assigns as the causes leading to the pas- sage of this statute, that the king, being in pressing need of money, had been persuaded that few or none of the nobility, clergy, or commonalty, holding franchises under grant from the crown, could produce any charters as evidence of their grants, since most of their charters were either destroyed by < 1 English Statutes at Large, p. Crabb's Englisli Law, cli. XIII. pi 129. And see Appendix D, 'poU; 175 ; 3 Inst. 377 et geq. Com. Dig. Quo Warranto, C. 1. C. 3 ; 428 QUO WAREANTO, [pART II. wars and insurrections, or lost by lapse of time. He had, therefore, sent proclamations throughout the kingdom, direct- ing that all persons claiming liberties or franchises by grant from any of his predecessors, should show before certain per- sons, nominated for that purpose, by what right or authority they held such liberties or privileges, the result of which was, that many franchises which had long been held and enjoyed in quiet possession were seized into the hands of the crown. The king at length, finding that he had given heed to evil counsels, and mindful of the provisions of magna eharta, and being moved especially by petition of the lords and commons in parliament assembled, enacted this statute, for the purpose "of redressing the grievances under which his subjects had suiTered, by reason of the continued encroachments of the royal prerogative. ' § 596. Notwithstanding the statute of Gloucester, the method of conducting proceedings in quo warranto was still far from satisfactory to the subject. It is true that the har- rassing and vexatious mode of inquiry, under which he had recently sufi'ered, was done away with, and he was no longer subject to the scrutiny of a body of select commissioners, appointed by the crown to examine into the tenure by which he held his franchises and liberties. Instead of this arbitrary and imcertain method of procedure, an established tribimal was provided, whose duty it was to determine judicially the rights of the subject and the tenure by which they were held. He was still liable, however, to be summoned by a general proclamation at the hands of the sheriif, without any specific complaint or charges being tendered, to come before the king's itinerant justices, and to disclose what franchises he held, as well as the title by which they were acquired. In addition to this, great delay was experienced in the proceedings, owing to the fact that the justices were frequently in the habit of defer- ring judgment until they should be apprised of the king's pleasure in the matter. Moreover the costs and expenses of hearing pleas in quo warranto in cases determined at West- • 2 Inst. 380. CHAP. 2III.] OP THE JUEISDICTIOW. 429 minster, being a grievous burden, it was deemed advisable that the subject might receive justice in his own county, and that pleas of quo warranto should be heard and determined in the eyres or circuits of the justices. ^ § 597. These grievances, being complained of by the lords spiritual and temporal and the commons, led to the passage of the statute of 18 Edward I., enacted in the year 1290, and known as the statute de quo warranto novum, in distinction from the statute of Gloucester. This act, after reciting the delays which had been experienced in proceedings in quo war- ranto, declared that the king, of his special grace and for the affection which he bore to his prelates, earls, barons and others of his realm, granted that all under his allegiance, who could verify by inquest of the country, or otherwise, that they and their ancestors had used any liberties, whereof they were impleaded in quo warranto, before the time of Kichard I., or in his time, should be adjourned unto a certain day before the justices, within which time they might go to the king, who should confirm their liberties by letters patent. Such persons as could not establish seisin of the franchises or liberties in their ancestors or predecessors, were to be adjudged according to law and the custom of the realm, and such as held charter evidence of their rights were to be adjudged according to their charters. The statute further declared that the king had granted, for the purpose of sparing the costs and expenses of his people, that pleas of quo warranto should thenceforth be pleaded and determined in the circuits of the justices, and that all pleas then pending should be adjourned into their shires, imtil the coming of the justices therein. ^ The effect of this important statute, which was deemed an act of concession from the sovereign to the subject, was to weaken the prerogative powers of the former, and, to the same extent, to fortify the rights and privileges of the latter. And in aU cases where it appeared that the respondent to the writ had enjoyed, time whereof the memory of man ran not to the contrary, certain ' See 2 Inst. 495 ei sf?. post. And see 3 Inst. 494; Com. ' 18 Edw. I. St. 3, 1 English Stat- Dig. Quo Warranto, B ; Crabb's utes at Large, p. 257, Appendix E, English Law, ch. XIII, p. 175. 430 QUO WAEEANTO. [PAET H. franchises resting in prescription, Or, in case of franchises claimed under charter, if a grant were shown within the" time of Richard I., or, if a grant prior to that time were shown to have been confirmed and allowed since, the respondent could not be ousted. 1 § 698. These statutes have been incorrectly supposed by some authorities to be the origin and foundation of proceed- ings in quo warranto. The better doctrine undoubtedly is, that they were intended merely to regulate an existing juris- diction, by pruning it of its harsher and more oppressive features, and that, so far from creating a new jurisdiction or a new remedy, they were only declaratory of an existing course of procedure, which they attempted to regulate and improve. Indeed, this conclusion is inevitable from a perusal of the statutes themselves, and satisfactory evidence exists of the use of the writ at a period long anterior to the date of these enact- ments. ^ Their chief purpose seems to haVe been to shajie aii existing remedy, so that it might more effectually insure justice to the subject, by restraining the excesses of the royal prerogative, and by affording him a more convenient forum for the protection of his franchises, in the county where he resided, instead of compelling his attendance before the king's justices at Westminster. § 599. The precise period of time when this ancient writ fell into disuse in England, and its place was usurped by the more modern remedy of an information in the nature of a quo warranto, can not be definitely ascertained. It is cettain, how- ever, that the information, itself a common law remedy, wai of very early date,' and it is probable that it began to super- sede the more ancient remedy upon the abolition of the circuits of the king's justices in eyre, and the substitution in lieu thereof of the justices of assiZe.* The authorities differ as to ' See Com. Dig. Quo Warranto, ' See opinion of Lord Chief Jus- B ; Crabb's English Law, ch. XIII, tice TnroAL, in Darley ». The Queeii, p. 175. 13 CI. & Fin. 520. = Crabb's English Law, ch. XIII, * See Crabb's English Law, ch. p. 175; Darley v. The Queen, 12 CI. XVIII, p. 277; 3 Inst. 498; State v. & Pin. 530, opinion of Lord Chief Stewart, 32 Mo. 379. Justice TiNDAL. UHAP. XIII.] OF THE JURISDICTION. 431 the exact time when the circuits in eyre were abolished, Sir Matthew Hale fixing the period of their abolition at about the tenth year of Edward III. Lord Coke, however, filaces the period much later, basing his opinion upon an act of par- liament subsequent to that time, providing that no eyres should be held during two years, and upon a statute of the sixteenth year of Eichard II., enacting that no eyre should be held until the next parliament. * All the authorities, however, seem to agree that the abolition of these justices itinerant was the probable period when the ancient remedy began to fall into disuse. And this view of the case derives additional support from the fact that that clause of the statute of 18th Edward I., authorizing pleas of quo warranto to be heard and determined in the circuits of the justices, necessarily expired when these circuits were abolished, and the jurisdiction was again exercised, as before the statute, only in the courts at Westminster. ^ § 600. The substitution of the information in lieu of the original writ, is attributed by Blackstone to the length of the process upon the proceeding in quo warranto, as well as to the fact that the judgment rendered therein, it being in the nature of a writ of right, was final and conclusive, even against the crown. 2 An additional cause for the gradual disuse of the ancient writ may perhaps be found in the fact that it was purely a civil remedy, while the information was at first used both as a civil and criminal process, and resulted in a fine against the usurper, as well as judgment of ouster or seizure. But, whatever may have been the causes which led to the sub- stitution of the quo warranto information in lieu of the ancient writ, it has in modern times almost entirely displaced the former remedy, and is now the usual process to which resort is had to correct the iisurpation of any public ofiice or corpo- rate franchise, by trying the civil right, seizing the franchise 1 2 Inst. 498. costs, charges and expenses, lost its ' 3 Inst. 498. " Now when justices effect, for with justices in eyre this in eyre ceased," says Lord Coke, branch lived, and with them it " then this branch for the ease of died." the subject, and for saving of their ' See 3 Black. Com. 363. 432 Qiro WAEEAWTO. [part II. and ousting the usurper, i It lies in all cases where the ancient writ itself could have been maintained,^ and in England and in many of the states of this country, its scope has been enlarged and extended by legislative enactments. In the absence, however, of such legislation, its application has been held to be limited to cases where the original writ would have been granted at common law.^ § 601. The jurisdiction by information in the nature of a quo warranto having become lirmly established in England, and having entirely usurped the place of the ancient writ, it gradually developed into symmetrical form, and, by the aid of legislative enactments the principles regulating its exercise became well settled. As a corrective of irregularities in the administration of mimicipal corporations, it was always a favorite remedy with the crown. Nor is it matter of surprise that a jurisdiction so effective should, in the hands of corrupt monarchs, have been frequently subverted from its legitimate purposes and used as a means of strengthening the king's pre- rogative at the expense of his subjects. The most flagrant instances of such abuse of the remedy occurred in the turbu- lent proceedings which marked the latter period of the roign of Charles II., when the information was resorted to for the purpose of forfeiting the charters of large numbers of muni- cipal corporations throughout the kingdom. By the aid of a subservient judiciary, the king was thus enabled to seize tlie franchises of many of the principal municipalities, and to remodel them according to the royal will, reserving to the 'crown in the new charters granted the first appointment of those who should govern the corporation.* To such an extent was the jurisdiction carried that in the celebrated case of the city of London, decided at Trinity Term, in the 35th year of this reign, the entire liberties, privileges and franchises of the ' See State o. Ashley, 1 Ark. 379 ; Miss. 509. Lindsey v. Attorney General, 33 ^ Commonwealth v. Murray, 11 8. Miss. 509 ; State v. Paul, 5 Stew. & & R. 78. See also State v. Ashley, 1 Port. 40 ; Commonwealth ». Murray, Ark. 279. 11 S. & R. 73. * Hallam's Const. Hist. ch. XII; " Lindsey v. Attorney General, 33 3 Black. Com. 263. CHAP. XIII.] OF THE JURISDICTION. 433 city were seized into the hands of the king, where they remained for a period of four years, until his successor, James II., becoming terrified at tlie news of the intended invasion of tlie Prince of Orange, saw fit to restore the charter, which was accordingly done October 6, 1688, the king directing his lord chancellor, Jeffeeies, to restore it in person, i One of the principal grounds relied upon in suppor.t of the judgment in this case, was that a petition presented to the king by the common council of the city, to the effect that his prorogation of parliament had obstructed public justice, was a scandalous and libellous petition and a forfeiture of the corporate fran- chise. Another ground of forfeiture was the imposition of certain tolls upon goods brought into the city markets, by virtue of an ordinance or by-law of the municipality. Upon such frivolous grounds as these the franchises of the oldest municipality in the kingdom were seized into the hands of the crown, and like proceedings, for causes no less frivolous, were had against many of the principal municipal corporations throughout England. To such lengths was this abuse of the jurisdiction carried by the house of Stxiart, that it is said that no less than eighty-one quo warranto informations were pre- sented against municipal corporations during the reigns of Charles II. and James II. These continued encroachments of the royal prerogative, though justified by Blackstone,^ were productive of such serious alarm that after the revolution the judgment against the city of London was reversed by statute, and it was provided by the same act that the franchises of the city should never be seized for any misdemeanor or forfeiture.' § 602. Prior to the statute of Anne,* the information in the nature of a quo warranto was employed exclusively as a prerogative remedy, to punish a usurpation upon the franchises or liberties granted by the crown, and it was never used as a remedy for private citizens, desiring to test the title of persons claiming to exercise a public franchise. And although such ' King «. City of London, 3 Harg. ' See 3 Black. Com. 864 State Trials, 545. See comments ' 3 William & Mary, oh. 8, 9 Eog- upon this extraordinary proceeding lish Statutes at Large, 79. in Hallam's Const. Hist. ch. XII. * 9 Anne, ch. 30. See Appendix A. 28 434 QUO WARRANTO. ' [PART II. informations were exhibited by the king's attorney general long prior to this statute, yet the remedy thereby given was never enlarged beyond the limits prescribed for the original writ of quo warranto, which only extended to encroachments upon the royal prerogative. So that the information, as a means of investigating and determining civil rights between parties, may be said to owe its origin to the statute of Anne, which authorized the iiling of the information, by leave of court, upon the relation of any person desirous of prosecuting the same, for usurping or intruding into any municipal office or franchise in the kingdom. i The object of this statute, in as far as concerns the usurpation of corporate franchises, is said to have been the promotion of speedy justice against such usurpation, as well as to quiet the possession of those who were lawfully entitled to the franchise.^ And it was doubtless intended to be coniined to such franchises as were claimed in cases affecting corporate rights, or rights to freedom in municipal corporations, and not to be extended to all offices or franchises, exercised without authority from the crown within a corporation. And the word " franchises," as used in the act, has been construed by the court of kings bench, to mean only the freedom and right of membership in the corporation.* " See State v. Ashley, 1 Ark. 279. stances affecting those rights be- See also 9 Ann. ch. 20, sec. 4, Ap- tween party and party." And Mr. pendix A. post. Justice Dbnison observes: * * * ' Rex V. Wardroper, Burr. 1964. " There are numbers of offices which ' Rex®. Williams, Burr. 402. Lord a man may usurp and be liable to Maksfieu), in commenting upon an information for usurping which the statute of Anne, in th is case, are not franchises in corporations, observes : " The act is meant to ex- But these ' franchises ' mentioned tend to all officers or corporations in the act mean corporate rights, or as such ; and, as far as relates to all rights to freedom iu corporations." the corporate rights of the burgesses Mr. Justice Fostek says: "The and freemen, it is very legally, word ' franchises,' in the act, means clearly, and correctly drawn. But only freedoms and rights to be it is not within the reason or mean- members of the corporation. This ing of the act, that it should extend act was drawn with great care and generally to all offices or franchises attention. (Judge Powell was the ■exercised without authority from person who drew it.) And there is the crown, within a corporation, no reason to extend it beyond its It was meant to be confined to such intention." franchises »■! were claimed in in- CHAP. XIII.] OF THE JTJEISDICTIOW. 435 § 603. The original writ of quo warranto was strictly a civil remedy, prosecuted at the suit of the king by his attorney general, and in case of judgment for the king, the franchise was either seized into his hands, if of such a nature as to subsist in the crown, or a mere judgment of ouster was ren- dered to eject the usurper.* No fine was imposed, nor was any other punishment inflicted than that implied in the deprivation of the franchise, which had been improperly usurped or ille- gally exercised.^ The information was originally regarded as a criminal proceeding, in which the usurpation of the office or franchise was charged as a criminal offense, and the offender was liable upon conviction to a fine and imprisonment, as well as the loss of the franchise which he had usurped. In modern times, however, the information, as a means of criminal prosecution, has entirely fallen into disuse, and it has come to be regarded as a purely civil remedy, which, though partaking in some of its forms and incidents of the nature of criminal process, is yet a strictly civil proceeding, resorted to for the purpose of testing a civil right, by trying the title to an office or franchise and ousting the wrongful possessor. ^ Indeed, to such an extent has the remedy come to be regarded as purely a civil one, that it is held not to fall within the prohibition of the restrictive clauses contained in the constitution or bill of rights of many of the states, providing that no citizen shall be called to answer any criminal charge, except by present- ' See 3 Black. Com. 263 ; State v. M'Oloskey, 2 Rawle, 381, opinion Ashley, 1 Ark. 279. of Gibson, C. J. In Illinois, how- = See State v. Ashley, supra. ever, the information is still re- ' State B. Hardie, 1 Ired. 42 ; State garded as a mode of criminal Bank v. The State, 1 Blackf. 267; prosecution, for the two-fold pur- State V. Ashley, 1 Ark. 279 ; Lindsey pose of punishing the usurper and «3. Attorney General, 33 Miss. 508; ousting him from the franchise State V. Lingo, 2G Mo. 496 ; State v. usurped, and the rules of pleading Stewart, 32 Mo. 379 ; State ». Law- applicable to criminal indictments rence, 38 Mo. 585 ; State «. Kupferle, are applied to informations. Don- 44 Mo. 154; Commonwealth «. nelly v. The People, 11 III. 552; Birchett, 2 Va. Cas. 51 ; Attorney People v. Mississippi & Atlantic R. General v. Barstow, 4 Wis. 567; Co. 13 111.66; Wight o. The People, Commonwealth v. Commissioners, 15 111. 417. 1 S. & R. 382; Commonwealth v. 436 QUO WAEEASTTO. [PAET II. meut, indictment, or impeachment. Sucli restrictions, it is held, do not have the effect of prohibiting the information in the nature of a quo warranto, since it is at the most a criminal proceeding only in form and name, its primary object being, not the infliction of pains and penalties as in ordinary criminal proceedings, but to prevent the wrongful usurpation or abuse of an office or franchise. ^ § 604. In considering the nature and purpose of the infor- mation in the nature of a quo warranto, it is to be premised that it does not create an office or franchise, but is merely declaratory of existing rights, the court being the medium for declaring and enforcing rights already existing by law. Nor does it command the performance of his official functions by any officer to whom it may run, since it is not directed to the officer as such, but always to the person holding the office or exercising the franchise, and then not for the purpose of dictating or prescribing his official duties, but only to ascertain whether he is rightfully .entitled to exercise the functions claimed. 2 § 605. In England, the former practice of the court of kings bench seems to have been, to grant informations in the nature of a quo warranto almost as a matter of course. Indeed, to such an extent had the granting of these informations been carried, that it was often deemed prudent not to show cause against the rule nisi, lest the respondent should thereby dis- close his grounds of defense. Gradually, however, the kings bench became more cautious in granting leave to file the information, and would only do so after considering all the " State Bank ®. The State, 1 Blackf. writ of quo warranto to direct any 267 ; State v. Hardie, 1 Ired. 43. In oflBcer what to do. It is never People V. Gillespie, 1 Cal. 343, the directed to an oflBcer as such, hut information is regarded as a mixed always to the person — not to dictate action for the double purpose of to him what he shall do in his vindicating public policy and of office, but to ascertain whether he enforcing a private remedy. is constitutionally and legally au- ' Attorney General v. Barstow, 4 thorized to perform any act in, or "Wis. 659, 773. Mr. Justice Smith exercise any functions of the office observes, p. 773 : "It is foreign to to which he lays claim." the objects »nd functions of the CHAP. XIII.] OF THE JTTRISDICTION. 437 circumstances of the case.^ And the principle is now firmly established, that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an oflSce or franchise, rests in the sound discretion of the coiirt to which the application is made, even though there be a substantial defect in the title by which the office or fran- chise is held. 2 In the exercise of this discretion, upon the application of a private relator, it is proper for the court to take into consideration the necessity and policy of allowing the proceedings, as well as the position and motives of the relator in proposing it, since this extraordinary remedy will not be allowed, merely to gratify a relator who has no interest in the subject of inquiry.* The court will also weigh the considerations of public convenience involved, and will com- pare them with the injury complained of, in determining whether to grant or refuse the application.* And wherever it is apparent that the filing of the information would result in no practical benefit, as where there is no one claiming the office in opposition to the respondent, and the term will expire before a trial of the right can be had, or where a new election for the office is about to occur, which will afford full redress to the relators, the court may properly refuse the application for leave to file an information. ^ The expediency of permit- ting the information to be filed is also a proper matter for the consideration of the court, and the fact that a successful pros- ecutic>n of the proceedings, which are brought to test the title to a municipal office, may result in the suspension of all ' King V. Stacey, 1 T. R. 1. 365 ; Commonwealth v. Cluley, 56 « People V. Walte, 6 Chicago Le- Pa. St. 370; People b. Sweeting, 3 gal News, 175, decided in supreme Johns. Eep. 184. But see State v. court of Illinois, January 30, 1874; Burnett, 3 Ala. 140. State n. Tolan, 4 Vroom, 195 ; State ' State v. Brown, 5 R. 1. 1. n. Schnierle, 5 Rich. 399 ; State v. * State «. Schnierle, 5 Rich. 399. Centreville Bridge Co. 18 Ala. 678 ; ' People v. Sweeting, 3 Johns. Rep. State V. Fisher, 38 Vt 714; Com- 184; State ». Schnierle, 5 Rich. 299 ; monwealth B. Reigart, 14 S. & R.316 ; Commonwealth v. Reigart, 14 S. State V. Brown, 5 R. I. 1. And see & R. 216. See also State o. Centre. Stone V. Wetmore, 44 Geo. 495; ville Bridge Co. 18 Ala. 678. Commonwealth d. Jones, 13 Pa. St 438 QUO WAEKASTTO. [PAKT II. nninicipal government in the city for a long period of time, may properly be taken into account in deciding upon the application.! § 606. The right of the court to exercise its discretion, in granting or withholding leave to file an information, is not limited, even by a statute authorizing the granting of the remedy at any time on "proper showing made." The spirit of such a statute is held to contemplate the right of the court to refuse the application, if it shall see fit, and since the remedy is in no sense a matter of absohite right, on the part of a claimant to an ofiice, he must, notwithstanding such a statute, present to the court such facts as will enable it to decide the right to the office in question. ^ It is, however, important to observe that when the court has, in the exercise of its discre- tion, allowed the information to be filed, it has exhausted its discretionary powers, and the issues of fact and of law pre- sented by the pleadings must then be tried and determined in accordance with the strict rules of law, in the same manner and with the same degree of strictness as in ordinary cases.* § 607. In Alabama, a distinction is taken, in applying the doctrine of judicial discretion above considered, between cases where the proceedings retain the character of a prosecution in behalf of the state, where the franchise or office in controversy involves no question of private right, as in the case of corpo- rations, and cases where only private rights are involved. And it is held that the doctrine of discretion should be limited to the former class of cases, and that when the application is made in behalf of one claiming the right to a particular office or franchise, it is to be considered rather as a matter of right than of discretion.* § 608. Informations in the nature of a quo warranto as now used in England, in lieu of the ancient writ, are of two kinds: first, such as are exhibited by and in the name of the attorney general, ex officio, without any relator, and which are filed without leave of the court and without entering into any ' State «. Tolan, 4 Vroom, 195. = State ». Brown, 5 R. I. 1. » Stone V. "Wetmore, 44 Geo. 495. ■• State «. Burnett, 3 Ala. 140. CHAP. XIII.] OF THE JUEISDIOTIOK. 439 recognizance; second, informations in the name of the qneen's coroner and attorney, sometimes known as the master of the crown office, upon the relation of private citizens. The latter class can only be filed by leave of court first obtained for that purpose, as provided by the statute of Anne,i and by entering into a recognizance in conformity with the statute 4 and 5 William and Mary, ch. 18. The most frequent use to which the information is put in England is to determine the right to municipal offices and franchises, and its use as a means of testing the title to the franchises of private corporations in that country is of comparatively rare occurrence. § 609. In this country, the principles governing the juris- diction under discussion have been somewhat confused, by the failure of many of the courts to properly discriminate between the original or ancient writ of quo warranto, and the informa- tion in the nature of a quo warranto, and the terms have been used often as synonymous and convertible terms. The dis- tinctive features of the two remedies are clearly defined and have already been noticed. ^ And although the quo warranto information has almost entirely usurped the place of the original writ, yet the, latter is, in substance, still recognized and employed as an existing remedy in some of the states of this country.^ But whether resort be had to the ancient writ of quo warranto, or any process analogous thereto, or to the more modern and convenient remedy by information, the object of the proceeding is substantially one and the same, viz., to correct the usurpation, non-user or misuser of a public office or of a corporate franchise. And it is doubtless due to the comparatively short tenure of most offices in this country, as well as to the method of popular elections which forms the distinctive feature of the American system, that the jurisdic- tion is more frequently invoked for the determination of dis- puted questions of' title to public offices, in this country, than for all other causes combined. ' 9 Anne, ch. 30, Appendix A, State ». St. Louis Insurance Co. 8 post. Mo. 330. See also Commonwealth ^ See State -o. Ashley, 1 Ark. 379. v. Burrell, 7 Pa. St. 84. = See State ». Ashley, 1 Ark. 379; 440 QUO WAEEASTTO. [PAET II. § 610. In most of the states of this country, the jurisdic- tion is fixed by constitutional provisions, prescribing the courts which shall be empowered to grant the relief. And the authorities are somewhat conflicting as to the precise nature of the remedy intended to be conferred, since the terms writ of quo warranto and information in the nature of a quo warranto have been frequently used as interchangeable and synonymous terms. In Wisconsin, the doctrine is maintained that the two terms, a,s now generally used in this country, are to be understood as synonymous, and that the grant of power in the constitution of the state, authorizing the supreme court of the state to issue writs of quo warranto, is not to be limited or confined to the ancient common law remedy of that name, but that it is applicable to all cases where the information has been recognized as the appropriate remedy, according to the established usages of the common law. And the remedy by information in the nature of a quo warranto having long since taken the place of the ancient writ, it is held that the clause of the constitution conferring the power to grant writs of quo warranto, must be construed with reference to the estab- lished jurisdiction of the courts by the quo warranto informa- tion, and that to this jurisdiction reference must be had in determining the powers of the court under the constitution, rather than to the jurisdiction by the ancient writ of quo warranto. ^ ' State B. West Wisconsin R. Co., J., construing tliis clause, In the a leading case recently decided and opinion in State v. West Wisconsin to appear in 34 Wis. See also At- E. Co., observes : " It is as impossi- torney General v. Blossom, 1 Wis. ble to believe that the framers of 317 ; Attorney General «. Barstow, the constitution were looking back 4 Wis. 567; State v. Messmore, 14 over the period of three or four hun- Wis. 115. By section 8, article VII, dred years, into the middle ages, of the constitution of Wisconsin, il designing to give this court such Is provided that the supreme court jurisdiction, and only such, as was of the state shall "have power to then exercised in virtue of the writ issue writs of habeas corpus, man- of quo warranto, as it is that they damns, injunction, quo warranto, intended to confine the court to that certiorari, and other original and antiquated and useless process. The remedial writs, and to hear and framers of the constitution were determine the same." Dixon, C. practical men, and were aiming at CHAP. XIII.J OF THE JURISDICTION. 441 § 611. In Florida, also, the terms quo warranto and infor- mation in the nature thereof are used as synonymous, and the constitutional provision conferring original jurisdiction upon the coiirt of last resort of the state, by the writ of quo war- ranto, is held to warrant that court in exercising jurisdiction by information in the nature of a quo warranto. ^ It is also practical and useful results. They used the words ' writs of quo war- ranto,' juat as they had been used in common parlance, and by courts, lawyers and writers for hundreds of years, as synonymous with ' in- formation in the nature of quo war- ranto,' which had so long been the complete and unqualified substitute for the writ. 'This (the informa- tion) is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpa- tion of the franchise, as to oust him, or seize it for the crown ; but hath long been applied to the mere pur- poses of trying the civil right, seizing the francliise, or ousting the wrongful possessor, the fine being nominal only.' 3 Black. Com. 263. By the statute of this state the fine may be something more than nomi- nal. R. 8. ch. 160, sec. 15, 2 Tay. Stats. 1813, § 21. And in the early and leading case in New York, The People V TJtica Insurance Co., de- cided in 1818, and reported in 15 Johns. 358, in which the remedy by information was applied to one of these modern private moneyed or commercial corporations, we find Justice Spekcbr using the follow- ing language : ' An information in the nature of a quo warranto is a substitute for that ancient writ which has fallen into disuse, and the information which has super- seded the old writ is defined to be a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, and seize it for the crown. It has, for a long time, been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only.' Now it was with -a. view to this well known jurisdiction, then and long before exercised only in the proceeding by information, that the framers of the constitution gave or reserved the power to this court, using for convenience and brevity merely the words ' writ of quo war- ranto,' just as those words were used by Chancellor Kent in Attor- ney General v. Utica Ins. Co. 2 Johns. Chy. 371, 376, and as they had been used by other courts and writers times without number, and as they are still even used in our own statute (R. S. ch. 160, sec. 1, 2 Tay. Stats. 1807, § 1,) as meaning the same thing and intended to con- vey the same general idea of the words, ' information in the nature of quo warranto.' " ' State V. Gleason, 12 Fla. 190. By section 5, article VI, of the con- stitution of Florida, it is provided that the supreme court of the state shall " have power to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and also all writs necessary or proper to the complete exercise of its appel- late jurisdiction." Mr. Justice 442 QUO WAEEANTO. [PAET II. held, that it is not necessary to the exercise of the jurisdiction thus conferred, that the legislature should prescribe any partic- iilar mode of procedure, and that, in the absence of any such established mode, the court will proceed in conformity with the common law usages governing proceedings upon quo warranto informations. ^ § 612. In Missouri, the earlier doctrine seems to have been somewhat analogous to that prevailing in Wisconsin and Florida, and it was held that the supreme court of the state derived jurisdiction by quo warranto information, from a con- stitutional provision conferring upon the court the power of issuing writs of quo warranto, and other original remedial writs. ^ The later decisions in that state, however, recognize a distinction in the use of the terms, and hold that the writ of quo warranto, authorized by the constitution as an original remedial writ, to be issued by the suj)reme court, is the original common law writ as anciently used in England, and that it may issue without leave of court, being in the nature of a writ of right. It is therefore issued as of course, upon demand of the proper ofiicer of the state, just as a summons issues from Westcott, pronouncing the opi- constitutional grant of power was nion in State t>. Uleason, says ; the same as in our constitution, tire "Does the proceeding liere, to wit: supreme court of Missouri say: an information in tlie nature of a 'This court conceives that jurisdic- quo warranto, come within the con- tion is given of this case by the stitutional grant of power to issue a power to issue writs of quo war- writ of quo warranto? It will be ranto.' State «. Merry, 3 Mo. 278; found by reference to the American 8 Mo. 331. In Wisconsin, the oases, tliat tlie constitutional grant supreme court hold to the same of power in other states, where tlie view, remarking tliat the informa- proceeding has been by informa- tion has in view the same object, tion, is precisely similar to the 1 Wis. 333. This, upon examina- grant here. An examination will tion, will be found to be the Ameri- show that in the American practice can doctrine, and in England, such the terms ' quo warranto ' and ' in- a thing as a distinct proceeding by formation ' in the nature of quo the ancient writ of quo warranto warranto, are used as synonymous has not been practiced for cen- and convertible terms, the object turies." and end of each being substantially ' State d. Gleason, 13 Fla. 190. the same. Speaking of an informa- '' State v. Merry, 3 Mo. 378. tion of this character, where the CHAP, XIII.] or THE JUEISDIOTIOW. 443 an inferior court when the state begins an ordinary civil action against a citizen, and the court is without discretion in grant- ing the writ.i § 613. The same distinction is clearly recognized in Arkan- sas, where it is held that the ancient writ of quo warranto, and ' State V. St. Louis Insurance Co. 8 Mo. 330; State i,. Stone, 35 Mo. 555. In State v. St. Louis Insurance Co. Mr. Justice Scott, for tlie court, says ; " This court, by the constitu- tion of the state, has power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine tlie same. It would seem that the general assembly confounded the proceedings on a, writ of quo warranto with those on an information in the nature of a quo warranto, by making it the duty of the attorney general to apply to this court for a writ of quo warranto A writ of quo warranto is in the nature of a writ of right for the state against any person who claims or exercises any office, to inquire by what authority he supports his claim, in order to de- termine the right. (3 Black. Com. 263.) The writ of quo warranto, in consequence of the length of its process, has long since become obsolete in the English law, and information in the nature of a quo warranto, wherein the process is speedier, has been substituted in its place. Tomlin's Law Die, title, ' Quo Warranto.' The general assem- bly must have contemplated this last proceeding, in directing the attorney general to apply to this court for a writ of quo warranto. A writ of quo warranto, as we have seen, is in the nature of a writ of right. It issues on demand of the proper officer of the state, as a mat- ter of course, and there is no more necessity for an application to tliis court for this writ than there would be for a, summons in a circuit court when the state is about to commence an action of debt against one of her debtors. No reasons are offered why the writ should issue ; no information is communicated by affidavit, or otherwise, and tliere is no power in this court to refuse issuing the writ. Where, then, is the necessity of asking leave ? The asking leave is the admission that this court has a discretion in refus- ing or granting a writ of quo war- ranto, whereas none is considered to exist. In the case of the State v. Merry, 3 Mo. Rep., it was held that under that clause in the constitu- tion which gave this court original jurisdiction of writs of quo war- ranto, an information in the nature of a quo warranto might be filed, and that jurisdiction of it would be entertained. In the case of the State V. MoBride, 4 Mo. Rep. 303, an information in the nature of a quo warranto was exhibited against him, and jurisdiction was enter- tained of it by this court. The question was not made in that case; the party, it is presumed, acquiesc- ing in the opinion pronounced in the case of the State v. Merry. No question of jurisdiction can arise on the application now made by the attorney general, as he has not thought proper to ask leave to file 444 QUO V/AKKAXTO. [PAKT II. the information in the nature thereof, arc so distinct in their nature, and in the procedure under them, that, under the con- stitutional provision, conferring upon the supreme court of the state the power to hear and determine writs of quo warranto, as an original jurisdiction, the court is limited to the old common law writ, and can not exercise jurisdiction by a quo warranto information, i WLere, therefore, it is desired to an information in the nature of a quo warranto, but a demand is made simply for the writ itself, which, we conceive, issues as a matter of course, from the clerk's office of this court, on demand of the proper officer." ' State V. Ashley, 1 Ark. 279 ; S. C. lb. 513. See also State i>. Real Estate Bank, 5 Ark. 595; State «. Johnson, 36 Ark. 381. In State v. Ashley, the court. Bingo, C. J., say, p. 305 : "Informations as the basis or insti- tution of a criminal prosecution, are said to have existed coeval with the common law itself, but as a mode of investigating and deter- mining civil rights between private parties, they seem to owe their origin and existence to the statute of 9th Anne, which expressly authorized the proceeding in all cases of intrusion into, or usurpa- tion of corporate offices in corporate places. And although informations in the nature of a quo warranto were exhibited by the king's attor- ney general long prior to that time, the remedy given thereby was never extended beyond the limits pre- scribed to the old writ, and could, therefore, only be granted for some usurpation on the prerogative rights of the crown, and it is said there is no precedent of such information having been filed or allowed at the instance, or on tlie relation of any private person previous to sucJi statute of 9th Anne, nor could they be so exhibited afterwards, except in the cases mentioned in the stat^ ute, which neither increased or abridged the authority of the attor- ney general on that subject. This proceeding by information, when originally introduced, like all other criminal informations of that pe- riod, was designed principally to punish offenders who were guilty of usurping the prerogative rights of the crown ; yet, upon conviction or disclaimer, the right of the crown being thereby established, there was, besides the fine, a judgment of ouster against the defendant, or that the franchise be seized into the king's hands, thus affording, incidentally, a civil remedy for the king. And hence it is that all the authorities, ancient and modern, speak of the proceeding as being properly a criminal method of pros- ecution. It is, however, said to have been long since applied to the mere purpose of trying the mere civil right, seizing the franchise or ousting the wrongful possessor, the fine being nominal only. And, therefore, it was urged in the argu- ment that it must be considered as a substitute for the ancient writ of quo warranto, which came into ex- istence upon its disuse, and in 1607, fully occupied its place in the com- mon law, and consequently that the convention must be understood as CHAP. XTII.] OP THE JUEISDICTIOBT. 445 institute proceedings in that state against a private corpora- tion, such as a banking association, to procure a forfeiture of its franchises for misuser or non-user, the appropriate remedy is held to be by the ancient writ of quo warranto instead of.the information. 1 And under such a constitutional provision, it is held that a trial hj jury can not be demanded upon a writ of quo warranto. 2 Nor is the right to a jury trial in such case conferred by the 14th amendment to the constitution of the United States.^ § 614. In Pennsylvania, most of the substantial features of the ancient writ of quo warranto are preserved by statute, as a remedy for the usurpation of public offices, filled by appointment of the executive, or by election of the people, and the statutory remedy thus afforded, is held by the courts of that state to be, in all save form, the same as the writ of quo warranto at coinmon law.* The granting of the writ, liowever, is regarded as no more a matter of right in that state than is the information under the statute of Anne, but rests in referring to it, wlien tliey use the term writs of quo warranto, ratlier • than the antiquated and ohsolete proceeding by writ of quo warranto, which it can not he supposed to have been their intention to revise. To this argument we do not assent. The introduction of the latter did not subvert or destroy the former; they may have had, and we do not doubt that they did have a con- temporaneous existence; their pri- mary objects were essentially differ- ent, and the mode of proceeding in them materially varied, while they were in some respects attended with different results, and the form of the judgment was never the same ; one was strictly a civil, the other prop- erly a criminal metliod of proceed- ing. We are, therefore, of the opin- ion that the proceeding by writ of quo warranto and information in the nature of a quo warranto as known to and regarded by the com- mon law, are so different from each other that they can not with pro- priety be classed together, or com- prehended by one common name or description." See this case, p. 513, for the form of the writ of quo warranto, as used in Arkansas, and the procedure thereunder. And compare the form of the writ, as- used in this case, with the form of the ancient writ of quo warranto as recited in the statute of Gloucester, Appendix D, post. ' State V. Keal Estate Bank, 5 Ark. 596. = State v. Johnson, 26 Ark. 281. But see State v. Allen, 5 Kan. 213. ' State ■». Johnson, supra. * Commonwealth v. Burrell, 7 Pa. St. 34. See also Murphy v. Farmers' Bank, 20 Pa. St. 415. 446 QUO WARRANTO. [PART II. the sound discretion of the court.i In Tennessee, neither the original writ nor the information in the nature thereof, has ever been adopted, the remedy provided by statute in that state, for the usurpation of an oiBce or franchise, being in chancery. 2 § 615. In cases where the jurisdiction is conferred by the organic law of a state, it can not be taken away by legislative enactment, or by statutory changes in the form of the remedy. And where the supreme court of a state is vested by the con- stitution with original jurisdiction in quo warranto, it will continue to exercise the jurisdiction thus conferred, notwith- standing an act of the state legislature attempting to abolish both the original writ of quo warranto and the proceeding by information. 3 In such cases, the grant of power by the organic law of the state is regarded, not so much as conferring the power to issue a writ of a prescribed form, as to enable the court to hear and determine controversies of a certain char- acter. And the jurisdiction thus conferred can not be taken away by legislative enactment or change in the form of remedy, although new process may be adopted calculated to attain the same end.* ' Commonwealth ». Jones, 13 Pa. sisted that section 3 of article VII St. 365. of the constitution, only gave this " State ®. Turk, Mart. & Yerg. 286 ; court power to issue the writ of quo Attorney General v. Leaf, 9 Humph. warranto at the common law ; that 755. the statutes of 1849 abolished the ^ State V. Allen, 5 Kan. 213 ; State common law writ and substituted V. Messmore, infra. the proceeding by information ; that ' State B. Messmore, 14 Wis. 115. the present statute abrogated both The court, Dixon, C. J., comment- the writ and the information, and ing upon the case of State v. Foote, declared a civil action to be the only 11 Wis. 14, say: "The complaint remedy; and as it was a mere civil in that case, as in this, was styled action, it could not be entertained, an ■' information,' and the summons We considered that the framers of here is copied from the one there the constitution looked rather to issued. No objection was taken to the substance than the form; that the form of the summons, but the their object was not so much to complaint was demurred to, prin- give us power to issue a wnt of a cipally on the ground that this prescribed form, as to enable us to court had no jurisdiction over the hear and determine controversies subject of the action. It was in- of a certain character ; and that this OHA.P. XIII.] OF THE JtJEISDICTIOW. 447 § 616. The jurisdiction in this country, as we have already seen, is regulated to a considerable extent by the constitutions and statutes of the various states, which generally fix the courts which are empowered to administer the remedy, sometimes conferring the power as an original one upon the court of last resort of the state, and sometimes upon the various courts of general jurisdiction throughout the state. And in cases where both the supreme court of tlie state and inferior courts of gen- eral common law powers, such as circuit courts, are vested with jurisdiction in quo warranto, the supreme court may properly refuse to exercise its original jurisdiction in the matter, where the inferior courts are vested with ample power in the premises and can afford adequate relief by entertaining the information. 1 But since the granting of the writ of quo warranto is the exercise of an original and not of an appellate jurisdiction, where the supreme court of a state is by the constitution and laws of the state vested with only appellate powers, it can not issue the writ.^ § 617. A striking analogy exists between the remedy by quo warranto information, and the extraordinary remedies of injunction in equity and mandamus at law, in that neither of these extraordinary remedies is grantable where the party aggrieved can obtain full and adequate relief in the usual course of proceedings at law, or by tlie ordinary forms of civil action.^ And where a specific mode is provided by statute for contesting elections and a specific tribunal is created for that purpose, and the method of proceeding therein is fixed by law, resort must be had to the remedy thus provided, and jurisdiction could not be talten fore, overruled, but without a writ- away by any legislative changes in ten opinion." the forms of the remedy, but that ' State v. Stewart, 32 Mo. 379 ; we might adopt any new process State v. Buskirk, 43 Mo. 111. which was calculated to attain the ' Mx parte The People, 1 Cal. 85. same end. This was in accordance ' People v. Hillsdale & Chatham with the previous decisions and Turnpike Co. 3 Johns. Eep. 190; practice of this court. It had always State e. Wadkins, 1 Rich. 43; State taken jurisdiction of the proceeding v. Marlow, 15 Ohio St. 114. And by information in nature of a quo see State v. Taylor, 15 Ohio St. 137 warranto. The demurrer was, there- 448 QTJO -WAERAKTO. [PABT II. proceedings by information in the nature of a quo warranto will not be entertained. i So an information will rot lie against an officer of state militia, where a sjjecial tribunal is provided by the militia laws of the state and is vested with exclusi\-e jurisdiction of such matters. ^ ]K'or is the rule, as here stated, limited to cases where the relief may be attained in the ordinary forms of common law actions, but applies also to cases where the grievance may be redressed by bill in equity, and the existence of an adequate remedy in equity would seem to be a sufficient objection to entertaining pro- ceedings by information.^ § 618. Since the remedy by quo warranto, or information in the nature thereof, is only employed to test the actual right to an office or franchise, it follows that it can affi)rd no relief for official misconduct and can not be employed to test the legality of the official action of public or corporate officirs.* Thus, in the case of breaches of trust alleged to have been committed by trustees of an incorporated association, relief should properly be sought in equity- and not by proceedings in quo warranto.^ So where a public officer tlireatens to exercise powers not conferred upon him by law, or to exercise the func- tions of his office beyond its territorial limits, tlie proper remedy would seem to be by injunction, rather than by a quo warranto information. Thus, the information will not lie to prevent the legally constituted authorities of a city from levy- ing and collecting taxes beyond the city limits, under an act of legislature extending the limits, and the constitutionality of such an act can not be determined upon a quo warranto information.' ' State e. TMarlow, 15 Ohio St. 114. ' People v. Whitcomb, 55 111. 172. See also State v. Taylor, 15 Ohio St. Mr. .Justice Walker, for the court, 137. says: "The question sought to bo ' State D. Wadkins, 1 Rich. 43. raised by the information in this ^ People V. Whitcomb, 55 111. 173; case is, whether the city officers cmii Dart V. Houston, 23 Geo. 506. And extend the city government beyond see State v. Ridgley, 31 111. 66. the original limits of the town, and ■* People ®. Whitcomb, 55 111. 173; can levy taxes and enforce ordi- Dart B. Houston, 33 Geo. 506. nances in the portion of territory ' Dart V. Houston, supra. annexed by the act of February 23, CHAP. XIII.J OF THE JURISDICTIOIS'. 449 § 619. Where, however, the right to an office or franchise is the sole point in controversy, the specific legal remedy afforded by proceedings in quo warranto is held to oust all equitable jurisdiction of the case.i Thus, the legality of the election of trustees of an incorporated association, and their consequent right to exercise the functions pertaining to their office, and to conduct the affairs of the corporation, will not be determined by bill in chancery, such a case being regarded as appropriately falling within the jurisdiction of the common law courts by proceedings in quo warranto. ^ And since this remedy is applicable the moment an office or franchise is usurped, an injunction will not lie to prevent the usurpation, even though the respondent has not yet entered upon the office or assumed to exercise its functions. In such case, the party aggrieved should wait until an actual usurpation has occurred and then seek his remedy in quo warranto. ^ case, there seems to be no question that defendants 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 beyond the bounds of the city, or to levy and collect taxes beyond 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 ori- ginal corporate limits is or not con- stitutional, can not be determined in such a proceeding as this." ' Updegraff v. Crans, 47 Pa. St. 103 ; Hullman v. Honcomp, 5 Ohio St. 237. ' Hullman v. Honcomp, 5 Ohio St. 237. ' Updegraflf v. Crans, 47 Pa. St. 103. 1869, and which is used exclusively for agricultural purposes, and whether that act is not unconstitu- tional and void. The demurrer to the answer of respondents brought the whole record, as well the infor- mation as the answer, before the court to determine its sufficiency. The first question presented by the demurrer is, whether the remedy, if any exists, has not been miscon- ceived; whether the question of power to extend the city govern- ment over this territory thus an- nexed can be raised by quo war- ranto. This writ is generally em- ployed to try the right a person claims to an office, and not to test the legality of his acts. If an offi- cer threatens to exercise power not conferred upon the office, or to ex- ercise the powers of his office in a territory or jurisdiction within which he is not authorized to act, persons feeling themselves ag- grieved may usually restrain the act by injunction. * * * in this 29 450 QUO WAREANTO. [PART II. § 620. To warrant a court in entertaining an information in the nature of a quo warranto, a case must be presented in wliicli the public, in theory at least, have some interest, and it is not an appropriate remedy against persons alleged to have assumed a trust of a merely private nature, unconnected with the public interests. Thus, trustees appointed under an act of legislature to close up the affairs of a state bank, are not regarded as officers whose title can be determined by this form of remedy, since the public, as such, have no interest in the matter, and more appropriate relief may be sought by bill in equity on behalf of the parties aggrieved. Such trusteeship has none of the elements of an office, having neither a pre- scribed tenure and functions, nor an official oath. Nor is it a franchise in any proper sense of that term, since the appoint- ment confers no privilege or immunity of a public nature, nor does it convey any element of prerogative from the sovereign to the subject. Hence an information will not lie in eases of this nature, but the parties aggrieved will be left to pursue their remedy in equity for a mal-administration of the trust, i ' People v. Eidgley, 21 111. 66. to a particular corporation, and "Tlie act under which the defend- nothing more. It has none of the ants were appointed," says Mr. Jus- constituents of an office, none what- tice Brbbsb, " does not declare the ever. The defendants have the legal trust to be an office, nor in the title to all the property assigned, manner of their appointment was it to hold to them and the survivors considered an office. It has none of them, so that by judgment of of the indications of an office, no ouster they could not be divested tenure is prescribed, no fees or of this title. This can only be done emoluments allowed, and no salary, by bill in chancery. Is it a fran- nor is any oath required to be chise ? A franchise is said to be a taken. As the relators define it in right reserved to the people by the their information, it is a mere constitution, as the elective fran- ' trusteeship,' the duties of it being chise. Again, it is said to be a to take charge of the assets and privilege conferred by grant from wind up the affairs of the state government, and vested in one or bank, pay out its specie on hand more individuals as a public office. pro rata, and issue certificates of Corporations or bodies politic are indebtedness to bill holders and the most usual franchises known to other creditors; In one word, to ad- our laws. In England they are minister on the effects of a defunct very numerous, and are defined to corporation. These were duties of a be royal privileges in the hands of rspecial character, applicable alone a subject. An information will lie CHAP. XIII.] OF THE JUEISDICTIOW. 451 The information, however, will lie against one who claims an excl usive franchise or privilege of a valuable nature, and affect- ing the public, such for example as the privilege of operating a ferry over a river, although the mere fact of taking money from passengers is not of itself conclusive evidence of setting up or asserting an exclusive right. i § 621. The information in the nature of a quo warranto being in effect a civil remedy, though criminal in form, it is held that a statute of limitations barring proceedings upon the prosecution of indictments or informations under any penal law, is not applicable to this form of remedy, and it is not barred by such a statute. ^ And in the absence of any statutory period of limitation, it is held in this country that the attorney general may file the information in behalf of the people at any time, and that lapse of time constitutes no bar to the proceeding, in conformity with the maxim nullum tempus ocourrit regi. ^ § 622. Where the remedy by information in the nature of a quo warranto has been regulated by legislative enactments, these enactments are regarded by the courts as in the nature of remedial statutes, to which a strict construction is not to be applied. In such cases the usual rules of construction of remedial statutes are held applicable, and the courts will so construe them as to promote and render effective the remedy sought.* in many cases growing out of these nature, which could not be exer- grants, especially where corpora- cised without a legislative grant, tions are concerned, as by the stat^ would also be ^ franchise. There ute of 9 Anne, ch. 20, and in which must be some parting of preroga- the public have an interest. In 1 tive belonging to a king, or to the Strange R. (The King ®. Sir William people, under our system, that can Louther,) it was held that an in- constitute a franchise. Upon these formation of this kind did not lie defendants nothing of that kind in the case of private rights, where was conferred." no franchise of the crown has been ' Rex «. Reynell, Stra. 1161. invaded. If this is so, if in England ^ Commonwealth «. Birchett, 2 a privilege existing in a subject, Va. Cas. 51. which the king alone could grant, ' State v. Pawtuxet Turnpike Co. constitutes it a franchise, in this 8 R. I. 521. country, under our institutions, a , * Commonwealth v. Dillon, 61 Pa. privilege or immunity of a public St. 488. CHAPTER Xiy. OF QUO WARRANTO AGAINST PUBLIC OFFICERS. § 633. Information generally used in England against municipal corpora- tions ; in this country against public officers. 624. Power derived from the people in the United States. 625. Office defined; jurisdiction extended to all public officers; extended to creation of new office. €26. Nature of offices for which the information will lie ; three tests applied. 627. Actual user of office must be shown. 628. Judicial discretion ; information refused for petty office. 629. Burden of showing title rests on respondent. 630. Degree of interest required of relator. 631. Effect of acquiescence and laches. 632. Distinction between office and employment. 683. Effect of expiration of term, or resignation of office. 634. The information lies against governor of a state; presumptions indulged. 685. Judicial offices. 636. Jurisdiction not exercised to restrain officer from acting. 637. Military offices in the states. 638. Return of canvassers not conclusive as to election. 689. The doctrine recognized in New York ; the rule in Michigan. 640. In Alabama, information only lies for ineligibility to office. 641. Remedy in quo warranto a bar to an injunction. 642. Rule where rights of claimant are being already adjudicated. 643. Misdemeanor in office; change of residence of officer. 644. Information will not lie where judgment of ouster can not be rendered. 645. The jurisdiction not exercised where mandamus is the appropriate remedy. 646. EflFect of acquiescence in irregular election. § 623. The information in the nature of a quo warranto, as used in England, has been generally employed as a cor- rective of the usurpation of municipal oiBces and franchises, and the reports of that country afford more frequent instances (452) CHAP. XIV.J AGAINST PUBLIC OFFICERS. 453 of its application to municipal affairs than for any other pur- pose. In this country, however, the jurisdiction has been most frequently exercised for the purpose of determining dis- puted questions of title to public office, and for deciding upon the proper person entitled to hold the office and exercise its functions. And in the United States the remedy is now universally applied for this purpose, and the principles govern- ing the exercise of the jurisdiction in this class of cases are, for the most part, clearly and definitely fixed by an established course of judicial decisions. § 624, Since, under the American system, all power ema- nates from the people, who constitute the sovereignty, the right to inquire into the authority by which any person assumes to exercise the functions of a public office or fran- chise, is regarded as inherent in the people in the right of their sovereignty. And the title to office being derived from the will of the people, through the agency of the ballot, they are necessarily vested with a right of enforcing their expressed will, by excluding usui-pers from public offices. Nor is this right in any manner impaired by statutes, granting to electors, in their private capacity as citizens, the right to contest the election of any person assuming to exercise the functions of an office. Such statutes may have the effect of sharing the right with the elector, but they do not take away the right from the people in their sovereign capacity.' • People v. Holden, 28 Cal. 133. the election of any person who has Say the court, Sanderson, C. J. : been declared duly elected to a pub- " It is first claimed by the appellant lie office, to be exercised in and for that the district court had no juris- such county. But this grant of diction in the premises, and that power to the elector can in no way the only remedy in cases like the impair the right of the people, in present is under the statute which their sovereign capacity, to inquire prescribes the mode aind manner of into the authority by which any contesting elections. Wood's Di- person assumes to exercise the func- gest, p. 380, sec. 51. No proposition tions of a public office or franchise, could be more untenable. It is true and to remove him therefrom if it that the act providing the mode of be made to appear that he is a contesting elections confers upon usurper having no legal title there- any elector of the proper county to. The two remedies are distinct, the right to contest, at his option, the one belonging to the elector in 454 QUO WAEEANTO. [PART II. § 625. An office, such as to properly come within the legi- timate scope of a quo warranto information may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public. 1 And in the exercise of the jurisdiction under dis- cussion it will be found to extend to and cover a great variety of offices of a public nature, both elective and appointive, and whose functions partake of an executive, ministerial, legisla- tive, or judicial character. Nor is the use of the information limited to cases of the usurpation of an existing office or fran- chise, but it may be extended also to the setting up of a new office without authority of law.^ S 626. It seems to have been the earlier doctrine in Enarland, that a quo warranto information would not lie for any office, unless there had been a direct usurpation upon the crown, and doubts were at one time entertained as to whether the jurisdic- tion <.'Ould be exercised for any office not derived immediately from the crown, by charter or express grant. The rule, how- ever, is now well established by the highest judicial tribunal in that country, that the information in the nature of a quo warranto will lie for usurping any office, whether created by charter alone, or by act of parliament, provided it be an office his Individual capacity as a power civil or military, or any francliise granted, and the other to the people within this state. It matters not in the right of their sovereignty. upon what number of individual Title to office comes from the Will persons a right analogous in its of the people as expressed through results when exercised may have the ballot box, and they have a pre- been bestowed, for the power in rogative right to enforce their will question none the less remains in when it has been so expressed, by the people in their sovereign capac- exoluding usurpers and putting in ity. It has been shai-ed with the power such as have been chosen by elector, but not parted with alto- themselves. To that end they have gether. Substantially the same authorized an action to be brought point was made in the case of The in the name of the attorney general. People ii. Jones, 30 Cal. 50, without either upon his own suggestion or success." upon the complaint of a private ' Bee United States «. Lockwood, party, against any person who 1 Pinney's Wis. 359. usurps, intrudes into, or unlawfully ' Rex v. Boyles, Stra. 836. holds or exercises any public office. CHAP. XIV.] AGAINST PUBLIC OFPICEES. 455 of a substantive, public nature, and not merely the function or employment of an agent or servant, terminable at the will of others. Thus, the functions of a city treasurer, entrusted with the custody of the public funds, are of such a nature as to render the oflSce subject to proceedings upon a quo warranto information, although it is created, not by charter from the crown, but by act of parliament, and although the incumbent is appointed by certain magistrates, though not removable at their pleasure. * And the three tests to be applied in deter- 'Darleyu. The Queen, 12 CI. & Fin. 530, the leading English case. This was a writ of error in the house of lords, on a judgment in ihe exchequer chamber in Ireland, iifirming a judgment of the queens bench there, in the case of an in- formation in the nature of a quo warranto against the incumbent of the office of treasurer of the county of the city of Dublin. The prin- cipal question in the case was, whether the information would lie for such an olfloe, it being created Dy parliament and not by charter from the crown. Lord Chief Justice TiNDAL, for the judges, after an ex- haustive review of the authorities, says : " After the consideration of all the cases and dicta on this sub- ject, the result appears to be, that this proceeding by information in the nature of quo warranto will lie for usurping any ofBloe, whether created by charter alone, or by the crown, with the consent of parlia- ment, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others, for, with respect to such an employment, the court certainly will not interfere, and the information will not properly lie. The case of the registrar of the Bedford Level, The King «. Corporation of Bedford Level, 6 East, 356, and that of a county treasurer, who is the mere servant of the justices in England, The King i). Justices of Hereford- shire, 1 Chit. 700, are instances of this latter sort. There are then only two questions in respect to this office : Was it public ? and was the treasurer a mere servant of the Dublin magistrates ? The functions of the treasurer were clearly of a public nature ; he was to applot the assessment, receive and hold the money for a time, lieep it subject to his order on tlie bank, pay the ex- pense of public prosecutions, and pay other public moneys. It is clearly, therefore, of a public na- ture, and it is equally clear that though appointed by the magis- trates, he is not removable at their pleasure, and must, we think, be treated not as their servant, but as an independent officer. If the crown had established this office with pre- cisely the same functions, the peic- son filling It being removable in the same way as an officer of a corpo- ration created by charter, there could be no doubt that an informa- tion would lie, and the circumstance that the crown has enacted that there should be such an office, with-. 456 QUO WAEEANTO. [part II. mining whether an information will lie, are: first, the source of the office; second, its tenure; and third, its duties. The source of the office should be from the crown or sovereign authority, either by charter or legislative enactment, its tenure should be fixed and permanent, and its duties should be of a public nature.! Applying these tests the information will lie for the office of guardian of the poor, which is of a public character, created by statute, and entrusted with the performance of public duties. 2 And, ajiplying the same standard, it will be refused for an office in a private association of a purely elee- mosynary character, where the office or position partakes neither of a public or quasi-public nature.^ § 627. To lay the foundation for granting an information in the nature of a quo warranto to test the right or title to an office, there must in all cases have been an actual possession the consent of the two other branches of the legislature, has been shown to make no diiference. We think for these reasons that the nature of the oflBce held by the plaintiff in error was such for which an information in the nature of a quo warranto may be sustained, and that the judgment thereon is not erroneous." The lord chan- cellor observes as follows : " My lords, I entirely agree in the opi- nion which has been expressed on the part of the learned judges. Ad- verting to the provisions of the act of parliament, I am clearly of opin- ion that the office of treasurer of the county of the city of Dublin is a public office, the officer having important public duties to dis- charge ; and that the office is also of an independent character. It is clear, therefore, that if this office had been created by charter, an in- formation in the nature of a quo warranto would have lain for its usurpation. But the matter of doubt and controversy has been, whether, when an office is created, not by charter, but by act of parliament, an information of this kind can be sustained. There is a conflict of authority upon this subject. For my own part, I have long since come to the conclusion that, in this respect, there is no difference be- tween the circumstance of an office being created by charter and being created by act of parliament. In both cases the assent of the sov- ereign is necessary. Whether this is given by charter, or whether it is given by assent to an act of parlia- men* passed by both branches of the legislature, I think is altogether immaterial." ' Regina i}. Hampton, 13 L. T. R. N. S. 431. And see Queen v. Guardians of the Poor, 17 Ad. & E. N. S. 149. "Id. ' Bx parte Smith, 8 L. T. R. N. S. 458, following Darley v. The Queen, 12 CI. & Fin. 530. CHAP. XIV.] AGAINST PUBLIC OFFICEES. 457 and user of the franchise. It is not sufficient, therefore, that the person against whom the jurisdiction is invoked should have merely claimed the right to take the official oath, but an absolute user must also be shown. ^ But where an officer is acting without having been sworn into his office, he is guilty of an usurpation, even though he may have been duly elected.^ § 628. It is important to observe that the granting leave to lile informations in the nature of a quo warranto, is not in all cases a matter of strict right, but is subject, in a consider- able degree, to the exercise of a wise judicial discrimination, applied to the circumstances of the particular case. While, therefore, the sovereign authority has the unquestioned right to call any person to account for exercising, without authority, the functions of any office of a public nature, however small, yet the courts are averse to allowing the information to be filed in the case of petty offices of little importance.^ And in applications for the exercise of the jurisdiction, it is proper for the court to take into consideration the fact that no one complains of being deprived of the office which is exercised by' respondent, as well as the fact that the matter involved is of no practical importance, and that the term of office is short and has partially expired when the application' is made.^ § 629. An important feature of the law governing quo warranto informations, and one which most distinguishes this remedy from ordinary civil actions at law, is that the prose- cutor is not obliged to show title in himself to sustain the action, or to put the respondent upon the necessity of proving his title. And the principle is well established that the burden rests upon the respondent of showing a good title to the office whose functions he claims to exercise, the state being ' King v. Whitwell, 5 T. R. 85. such instance can have happened, "No instance has "been produced," and all the cases cited are the other says Mr. Justice BuLLKR, "in which way." t^e court have granted an informa- ' In re Mayor of Penryn, Stra. 583. tion in the nature of quo warranto, " Anon. 1 Barn. K. B. 379. •where the party against whom it ^ State «. Fisher, 38 Vt. 714. See was applied for has not been in the also People v. Sweeting, 3 Johns, actual possession of the office. No Kep. 184. 458- QUO WAKBAWTO. [PAET II. only obliged to answer the particular claim of title asserted. ^ The principle has been carried even further, and it has been held that it is incumbent upon the respondent to show, not only his title, but also the continued existence of every quali- fication necessary to the enjoyment of the oflBce, and that it is not sufficient for him to state the qualifications necessary to the appointment, and rely on the jDresumption of their con- tinuance.2 And while it is true, that as to officers de facto the courts will not inquire into their title in collateral pro- ceedings, yet in proceedings in the nature of a quo warranto, the object being to test the actual right to the office and not merely a use under color of right, it is incumbent upon the respondent to show a good legal title, and not merely a color- able one, since he must rely wholly on the strength of his own title. If he fails in this requirement judgment of ouster will be given. 5 § 630. As regards the degree of interest in tlie office or franchise in controversy, which must be shown to ^-ender one a competent relator to institute the proceedings, it has been held that a member of a board of public officers has a sufficient interest in the subject matter to make him a competent relator, in an information to test the title of another member of the same board.* But where the relator seeks by information not only to oust the respondent, but also to establish his own right to the office, he must show both his interest in and title to the office, as well as the necessary qualifications to render him eligible thereto.^ § 631. Long acquiescence on the part of the relatoi-s or informers, and their motives in seeking to file the inlbrmation, ' State v. Gleason, 13 Fla. 265 ; in State v. Hunton, 28 Vt. 594, it is People e. Mayworm, 5 Midi. 146; lield tliat where tlie respondent is Rex D. Leigli, Burr. 2143. And see in possession of the office, the pre- People i). Miles, 2 Mich. 348 ; Clarlc sumption of law is in favor of the !). The People, 15 111.217; State «. regularity of his election, and the Beecher, 15 Ohio, 723. But see Peo- relator being bound to make out pie 0. Lacoste, 37 N. Y. 192. his case has the affirmative of the ' People s. Mayworm, 5 Mich. 146. issue. « People V. Bartlett, 6 Wend. 422; - Dickson «. The People, 17 111. 197. People ■!>. Pease, 80 Barb. 588. But ' State e. Boal, 46 Mo. 528. CHAP. KIV.J AGAINST PUBLIC OPFICEES. 459 as well as the probable consequences to result from the pro- ceedings, are all proper subjects for consideration by the court in determining whether to grant or withhold leave to file the information.! And the principle is well settled that where one has concurred in inducing a person to exercise the functions of an oifice, he is estopped from afterward seeking by information to oust him from the office. ^ And one who has acquiesced in certain irregularities in the manner of con- ducting an election to an office, will not be allowed after himself submitting to the chances of an election and being defeated, to make such irregularities the ground of assailing the title of the officer elected by a quo warranto information.^ So the relator's laches in making the application, is an important element to be considered by the court in determining whether leave shall be granted to file the information.* But while the courts are disposed to overlook trifling irregularities in the election of officers who have held long and undisturbed posses- sion of their franchise, length of time will not prevail as against the sovereign, where the irregularities in the election go to the very question of right, and in such cases the maxim nulhim temjms occurrit regi applies with especial force. ^ § 632. In determining upon the propriety of a quo war- ranto information,- as a corrective of the usurpation of an office or francliise, an important distinction is to be drawn between the case of a public office proper, affecting public rights and interests, and that of a mere employment or agency, having no certain tenure, but determinable at the will of the employer. And while, in a generic sense, it is true that every office .is an employment, yet the converse of the proposition by no means follows, and there are many employ- ments, even of a public nature, which are not offices. While, therefore, the jurisdiction under discussion is well established as regards the usurpation of offices of a public nature, it is ' Kine ■». Dawes, 1 Black. W. 634. ■■ Queen ». Anderson, 3 Ad. & E. 8 Queen u. Greene, 2 Ad. & E. N. N. S. 740. g. 460. ' King v. Woodman, 1 Barn. K. 2 Regina v. Lockhouse, 14 L.T. R. B. 101. N. S. 359. 460 QXrO WABEANTO. [PAliT II. never exercised in the case of a mere agency or employment, determinable at the pleasure of the employer. ^ Thus, it is held that an information will not lie to remove officers of a railway company incorporated in the state, who hold their office by virtue of an election of the directors, such officers being merely agents or servants of the company, and remova- ble at the pleasure of the directors. ^ And the doctrine holds good even under a statute extending the remedy to offices in corporations created by the state, since the question of what constitutes an officer is not affected by such a statute, and must be determined by the common law.^ So where persons are employed by the governor of a state to perform certain duties for the state, there being no certainty as to their tenure of place, and they being subject to removal at pleasure, no office exists in the legal accejDtation of the term, and an information will not lie. The usurpation in such case, if any, is a i^surpation upon the governor of the state, and not upon the state itself* Nor does the recognition of such employ- ment by the legislature of the state, and the making of annual appropriations for its support, without changing its original character, or the tenure by which it is held, render the employ- ment an office the title to which may be the subject of an information. 8 § 633. Although, under the English practice, leave to file an information is frequently given, notwithstanding the term of office for which the respondent was elected has already expired, the object of the information in sach case being to inflict a fine for the usurpation, yet in this country, where the imposing of a fine has not generally been adopted, a different rule prevails. And where the term of office lias expired by efflux of time, and the officer no longer exercises or claims the franchise, so that judgment of amotion or ouster can not be rendered against him, the proceedings will not usually be entertained, and the courts will refuse leave to file the infor- ' People i>. Hills, 1 Lansing, 203; = Id. State V. Champlin, 3 Bailey, 220. ' State v. Champlln, 3 Bailey, 320. * People v. Hills, supra. ' Id. CHAP. XIV.] AGAINST PUBLIC OPFICEES. 461 mation.i And since the courts are vested with a certain degree of judicial discretion in granting or refusing applica- tions for leave to file the information, leave will not be granted where it appears that the term of office for which the respond- ent was elected will expire hefore the cause can be brought to trial, since the filing of the information in such case would be useless, and could not restore the relator to the office. ^ But the fact that after the rule to show cause has issued, the respondent resigns his office, and his resignation is accepted, presents no bar to making the rule for the information abso- lute, since the resignation is no answer to the rule, although it may regulate the discretion of the court of kings bench in determining the fine.* And in this country, where the impo- dition of a fine and the payment of costs are fixed by statutes of the state against one who is found guilty of usurping an office, the information will not be dismissed because of the expiration of the term of office after it was filed, but it will still be retained for the purpose of inflicting the fine and tfosts.* So where the incumbent of the office has ceased to exercise its functions the court may still decide upon his right, without, however, proceeding to judgment of ouster. ^ And while it is conceded that where the officer has already resigned his office, a quo warranto information is not necessary and will not lie merely for the purpose of vacating the office, yet where the object of the proceeding is not only to cause the respondent to vacate the office, but also to establish the title of the relator thereto, a different principle prevails. In such case the information will lie, even though the respondent has resigned and his resignation has been accepted before the rule was obtained, since the relator is entitled either to try the 'Morris ■». Underwood, 19 Geo. 14S. &R. 216; State ». Schnierle, 5 559 ; State ■». Jacobs, 17 Ohio, 143. Ricli. 299. And see State v. Fisher, And see State d. Taylor, 13 Ohio St. 28 Vt. 714. 130; People ®. Sweeting, 2 Johns. ' Kingu.Warlow, 2Mau.&Sel.75. Rep. 184. * People v. Hartwell, 13 Mich. 508. ' People B. Sweeting, 3 Johns. * State s. Taylor, 13 Ohio St. 130. Rep. 184; Commonwealth «. Reigart, 462 QUO WAIIKANTO. [PAET II. validity of respondent's title or to have his avowal upon the record of the invalidity of his election. ^ § 634. The office of governor of a state is regarded as a civil office of such a nature as to be amenable to the exercise of the jurisdiction under discussion. And where, by the con- stitution and laws of a state, its highest judicial tribunal is vested with jurisdiction by information in the nature of a quo warranto to prevent the citizens of the state from usurping its offices and franchises, an unlawful intrusion into the chief executive office of the state may be tried by this proceeding to judgment of ouster. In such case a plain distinction is recognized between a department of the government and the person assuming to exercise its duties, and the judicial branch of the government in no manner interferes with or attempts to control the legitimate functions of the executive depart- ment, but only seeks to protect the people from an unlawful usurpation of a high public office or franchise.^ It is to be ' Queen v. Blizard, L. K. 2 Q. B. 55, 15 L. T. R. N. S. 342. ^ Attorney General v. Barstow, 4 Wis. 567. Mr. Justice Cole, for the court, says, p. 750: "The objection to the exercise of the jurisdiction of this court to entertain a proceed- ing to determine the right of a per- son to hold and enjoy the office of governor, is, that it is dangerous to the independence of the executive department of the government. The executive power of the state is vested in the governor by the con- stitution, and hence, it is said, you can not interfere with the person acting as governor without disturb- ing the department. Who does not see the fallacy of this reasoning and the utter confusion of ideas in the very statement of the proposi- tion ? It assumes, in the first place, the very point in controversy, to wit: the right of the person acting as governor, to the office. This in- quiry proceeds upon the hypothesis that this right is disputed, con- tested ; that the respondent is an usurper. But whether he is or not is a question of fact to be established by proof alone. It is certainly very illogical to commence reasoning upon a proposition by begging the ques*lon. The question here is, who is entitled to hold the office of gov- ernor of this state? The answer given is that the respondent is the governor, and there the argument ends. Concede it, and there is noth- ing to inquire into ; no right to be ascertained, no subject for judicial investigation. But whether the re- spondent is the governor or not, is the issue. But a still greater error in the reasoning upon this case con- sists in confounding the person who holds an office with the office itself. By the general theory and principle of our government, the legislative, executive and judicial departments CHAP. XIV. J AGAINST PUBLIC OFPICEES. 463 observed, however, that where the proceedings upon an information to determine the right to hold and exercise a public office, call in question the acts of the executive dejDart- ment of the state, and are, in fact, based upon a supposed violation of the constitution hj that department, the presump- tion will be indulged by the judiciary that the executive department has acted rightly, until the contrary is shown. Indeed, this presumption may be said to exist in favor of the are equal, co-ordinate and inde- pendent, each within the sphere of its powers. Admit it, and wliat follows ? It is said that the person holding the office of governor is the executive department, or to state the proposition more intelligibly, the department and person are one and indivisible. Here is the vice of most of the reasoning upon this subject. Gentlemen will not dis- criminate, or do not discriminate between the office and the officer, a department of the government and a person exercising and acting in that department. Yet, to my mind, there is no difficulty whatever in making a distinction. I can easily see how an intruder may be re- moved from a department without interfering with or disturbing or impairing one jot or tittle of the powers of such department. Were it not for the conceded ability of the gentlemen who have advanced this argument, vitiated by this palpable fallacy involved in it, I should not deem it worthy a moment's exami- nation. As it is, it must be treated with sufficient respect to explode, if possible, the absurdity. And I there- fore say that there is not, and from the nature of the case there can not be, any resemblance, any similitude, any necessary connection, much less identity, between a department of the government and the person exercising the duties of the depart- ment. A department is a division or classification of a certain kind, of the powers of the government. It is not necessary to define what a person is, only negatively, and say that a person is not a department. Consider that the agents, the officers of these departments have been suc- cessively changing since the adop- tion of the constitution. Yet the departments remained unchanged. Some have died, perhaps, and others removed from the state; but the departments whose duties they dis- charged, are still unimpaired. So that this court can sit, examine and decide upon the rights of contest- ants to the office of governor, and give judgment against one, and for another, without breaking down or disturbing the executive department of the government." And Mr. Jus- tice Smith observes, p. 769: "So long as the constitution has pre- scribed certain qualifications for the executive office, and the people have hedged it about with inhibitory safeguards, I unhesitatingly affirm that if the writ of quo warranto could reach an intruder into no other office, that writ, or some other adequate process, should reach the office of governor." .464 QUO WAEEAWTO. [PAIIT II. regularity of the acts of inferior executive officers, and it applies with equal, if not greater force, to the heads of execu- tive departments, such as the governor of a state. ' § 635. The jurisdiction under consideration extends to judicial as well as political offices, and the office of probate judge of a county is one for wliich an information will lie.^ But it has been held in Alabama that the supreme court of the state has no power to inquire into the constitutionality of the appointment of a judicial officer, made by the legislative department of the state. And where the legislature had established a new inferior court, and had at the same session elected one of its own members to be the judge of such court, the supreme court of the state refused to interfere with the matter by information, or to inquire into the constitutional power of the legislature to make the election.* § 636. JSTotwithstanding the jurisdiction under discussion is, as we have seen, well established to correct the usurpation of an office or franchise of a public nature, the courts will not permit its use for the purpose of preventing a public officer from exercising any right or privilege incident to his office, and it can not be used to restrain an officer from doing a par- ticular act, the right to perform which is claimed as a part of his official functions. Thus, where a special judge is duly appointed and commissioned to try certain particular causes, quo wai-ranto will not lie to test his authority to ti-y certain of these causes, being a part of those which he was commis- sioned to hear and determine.* § 637. The use of the quo warranto information as a remedy for the usurpation of public offices, is not confined to offices of a civil nature only, but extends to military offices created by and existing under the laws of a state. ^ Tlius, where an officer of the state militia holds his office by virtue of an election by the legislature of the state, receives his com- mission under the seal of the state, and takes the same oath ' Commonwealth o. Prazier,4 Mon. » State v. Paul, 5 Stew. & Port. 40. 513. ' State v. Evans, 3 Ark. 585. ' United States v. Lockwood, 1 ' State v. Brown, 5 R. I. 1 ; Com- Pinney's ^is. 359. monwealth v. Small, 36 Pa. St. 31. CHAP. XIV.J AGAIITOT PUBLIC OFFICERS. 465 before entering upon his office that is required of all other public officers, his position is regarded as an office of a public nature, the title to which may be appropriately determined by an information in the nature of a quo warranto. i Where, however, a special tribunal or court of inquiry is created under the militia laws of the state, having exclusive jurisdic- tion over officers in the state militia, an information will not be entertained for such offices, since this extraordinary remedy is never granted to the exclusion of special remedies provided by law, and which are adequate to aiford redress. ^ § ^38. It is now the well established doctrine, that in pro- ceedings upon information to test the title to a public office, the return or certificate of canvassing officers as to the result of the election, is not conclusive as to the result or the title to the office. Such officers are, in general, held to be only minis- terial officers, vested with no judicial functions whatever, and their return is, at the most, but 'prima fade evidence in favor of the incumbent of the office. The courts will therefore go behind such returns, and will investigate the facts of the election, the number of votes cast, and the legality of the action of the canvassers. For this purpose they may receive testimony and make all needful investigation to determine the questions in dispute, and ff satisfied that the proceedings of the canvassers are erroneous, judgment of ouster will be given. 3 And the fact that the incumbent of an office de facto ' State B. Brown, 5 R. 1. 1. nature of a quo warranto, filed ' State «. Wadkins, 1 Ricli. 42. against the defendant, who, as is ' People v. Van Slyck, 4 Cow. 397 ; alleged, intruded into and unlaw- State v. Steers, 44 Mo. 223 ; Attorney fully holds the office of sheriff of General v. Barstow, 4 Wis. 567. See the county of Schenectady. The also People «. Pease, 30 Barb. 588; remedy by information is adapted People ®. Cook, 8 N. T. 67. And to this case. The statute is compre- see Cooley on Constitutional Limit- hensive in its terms. It extends to atinns, 623, et seq., where the whole all persons who shall usurp, intrude subject of contesting elections is into, or unlawfully hold and execute exhaustively treated. The language any office or franchise within this of the court, Woodwobth, J., in state. The jurisdiction of the court People v. Van Slyck, 4 Cow. 297, can not well be doubted when the very clearly states the rule as fol- question relates to a public office, lows : " This is an information in The decision of officers acting min- 30 466 QUO "WAREAWTO. [PABT II. holds a commission therefor, is not conclusive as to his right, since the title is derived from the election and not from the commission. If, therefore, the respondent holds his office without having been duly elected, he may be ousted, notwith- standing his commission.! § 639. The doctrine as above stated is still applied in the state of New York, although the writ of quo warranto and the information in the nature thereof have been abolished by the code of procedure, the remedy before obtained in these forms being now had by a civil action instituted for that pur- pose. For the purposes of such action, it is held tha* the return of canvassing officers afflards only prima facie evidence of an election, and the court may and will go behind the certi- ficate of the canvassers and investigate the facts of the election itself. 2 And upon principle as well as authority, it would seem that such proceedings properly open up an inquiry into every fact tending to show which of the claimants of an office was the actual choice of the electors.^ In Michigan, however, where the constitution of the state provides that when the return of the state board of canvassers is contested, the legis- lature in joint convention shall decide as to the person elected, it would seem that the courts can not go behind such return.* isterially is sought to be reviewed, ascertain tlie whole number of votes In The People t. The Mayor of New given at any election, and certify York, 3 John. Oas. 79, and The Same the same to be a true canvass. This v. Sweeting, 3 John. Rep. 184, the. Is not a judicial act, but merely court entertained jurisdiction, in ministerial. They have no power one case where the relator claimed to cdntrovert the votes of the elect- to 'have been elected to the oflBce of ors. If they deviate from the direc- alderman, .in the other to that of tions of the statute, and certify in supervisor, and considered an in- favor of a sheriflf not duly elected, formation as the proper remedy to he is liable to be ousted by informa- try the right of the parties. It was tion. The trial is had upon the contended on the argument, that right of the party holding the the decision of the board of can- office. The certificate is not con- vassers was conclusive until re- elusive. The court will decide upon versed, and could only be reviewed an examination of all the facts." by certiorari. This objection can ' State v. Steers, 44 Mo. 323. not prevail. The duties of the can- ' People v. Cook, 8 N. Y. 67. vaasers are ministerial. They are ' People v. Pease, 80 Barb. 588. required by the act to attend at the * See People v. Goodwin, 22 Mich, clerk's office, and calculate and 496. CHAP. XIV. J AGAINST PUBLIC OITICEES. 467 § 640. In Alabama, a somewhat novel doctrine is main- tained, with regard to the use of a quo warranto information as a means of testing the title to an office, and ousting an incumbent unlawfully exercising its franchises, and the pro- priety of the remedy in that state would seem to be dependent upon the ineligibility of the officer, or his illegal election in the first instance. And while the information will lie against one who was originally ineligible, or who was never duly and legally elected, and whose tenure of office was therefore illegal from the first, yet if the incumbent was lawfully elected in the first instance, and was eligible to the office, he can not be ousted by information, but resort must be had to the means affiDrded by the laws of the state for the punishment of officers by impeachment or otherwise.' § 641. In accordance with the general principle denying equitable relief where full redress can be had at law, the specific legal remedy afforded by proceedings in quo warranto to test the right to an office, is held to oust all equitable juris- diction of the case, and since this remedy is applicable the moment the office or authority is usurped, an injunction will not lie to restrain the exercise of official functions, even though there has been no actual entry upon the office. In such case, the party aggrieved should wait until an actual attempt is made to exercise the functions pertaining to the office, and then pursue his legal remedy by quo warranto.^ § 642. While the jurisdiction by quo warranto information to correct the unlawful usurpation of an office, is too well established to admit of controversy, and while judgment of ouster will be given in such proceedings against one who is found to be exercising the functions of an office, without due authority, yet where the rights of another claimant to the office are abeady being adjudicated, in the mode prescribed by statute for contesting elections, his rights will not be deter- mined upon proceedings in quo warranto, but will be left to the final adjudication of the contest already pending for that purpose.* ' State B. Gardner, 43 Ala. 234. 103. " Updegraff v. Crans, 47 Pa. St. " State «. Taylor, 15 Ohio St. 137. 468 QUO WAEEAKTO. [paET II. § 643. Where the relation or petition admits that the officer against whom the proceedings are instituted was duly elected and qualified, it should show, in order to sustain the applica- tion, some act of the officer working a forfeiture ipso facto of his office, and a mere misdemeanor will not suffice for this purpose, where the law has provided a particular method for the punishment of misdemeanors in office. ^ And the fact that an officer, such as the sheriff of a county, after being duly elected and installed into his office, has been made a non- resident in the county, by an act of legislature changing the boundary lines of the county, does not work a forfeiture of the office, and is not sufficient to sustain a writ of quo warranto.^ § 644. Ordinarily it would seem to be a sufficient objection to the exercise of the jurisdiction against a public officer, that the case as presented is one in which the court can not give judgment of ouster, even should the relator succeed. Thus, an information will not be allowed against certain magistrates, to compel them to show by what authority they grant licenses within a jurisdiction alleged to pertain to other magistrates, since there can not in such case be judgment of ouster or of seizure into the hands of the crown.* § 645. Proceedings in quo warranto will not be entertained where the writ of mandamus affords the appropriate and fitting remedy. For example, where one is elected to a county office, as that of sheriff, and commissioners whose duty it is to accept and approve his bond refuse so to do, the appropriate remedy is by mandamus to compel the commissioners to perform their duty, and not by proceedings in the nature of a quo warranto against the incumbent of the office.* So an information will not lie against one chosen as a member of a common council, for refusing to take upon himself the duties of the office to which he has been elected, the remedy, if any, being by man- damus.^ § 646. The fact that an irregularity in the election to a ' State t. Hixon, 27 Ark. 398. * State v. Lewis, 10 Ohio St. 138. ' Id. ' Queen o. Hungerford, 11 Mod, » Begina v. Justices of Durham, 3 Rep. 142. Ii. T. R. N. S. 372. CHAP. XIV.J AGAINST PUBLIC' OFFICERS. 469 public office, which is made the foundation for a quo warranto information, has been shared by the relator, who acquiesced therein without objection at the time of the election, is suffi- cient to estop him from maintaining the information. Thus, where the information seeks to overthrow the title to an elec- tive office, upon the ground that the election was void, having been held at a place other than that designated in the notices required by law, but it is shown by counter affidavits that the relator particij)ated in the election, and was himself an opposi- tion candidate, with full knowledge of the irregularity in the place of holding the election, the rule will be discharged, since the courts will not permit the public welfare to be dis- turbed by declaring an election void, in behalf of one who has participated in the irregularity, i ' People V. Waite, 6 Chicago Le- gal News, 175, decided in Supreme Court of Illinois, January 30, 1874. The doctrine of estoppel in such cases is clearly stated by Mr. Justice Scott, as follows : " The relator claims he was in a legal manner elected school trustee for township thirty-eight, and that the respondent has usurped that office, and now holds it and is exercising its func- tions without authority of law. The affidavit shows the respondent was himself elected to that office by the qualified voters of the town. It is insisted, however, the election was void for the reason it was not held at the place designated in the notices required by law to be posted prior to holding the election. The counter affidavits show the relator participated in the election he now seeks to have declared void, by voting thereat, and was himself an opposition candidate to respondent. The relator then knew as well as now what irregularities had inter- vened in the conduct of the elec- tion, and he ought not to be permit- ted to disturb the public welfare by having an election declared void in which he participated with a full knowledge of all irregularities that existed. A sound public policy forbids it. The only informality charged is, the election was held at an improper place. This fact was known to the relator. He uttered no complaint at the time, but sub- mitted his claims to the office to the voters of the town voting at that place, and claimed the right to, and did have his own vote recorded. These facts make it inequitable that he should have the remedy sought, and the court, in the exercise of a sound legal discretion, properly dis- charged the rule. The judgment must therefore be affirmed." CHAPTEE XY. OF QUO WARRANTO AGAINST PRIVATE CORPORATIONS. § 647. Quo warranto information the remedy for mis-user, non-user, or usurpation of corporate franchise. 648. Corporate franchise defined ; rights of sovereign power ; ground of forfeiture. 649. Courts averse to forfeiture of franchise ; not allowed where other remedy exists. 650. Information lies for usurping corporate franchise; insurance com- pany doing banking business. 651. Non-performance of conditions of charter a ground of forfeiture; principles of construction. 652. Degree of title necessary; distinction between cases of private and public right. 653. Offices in private corporations. 654. Courts averse to forfeiture of franchise on complaint of private citizen. 655. Actual user of corporate oflBce must be shown. 656. Effect of statute ; user required. 657. Presumption in favor of long user. 658. Acquiescence of corporator a bar to relief; discretion in case of private prosecutor. 659. Acquiescence, conduct and motives of relators to be considered. 660. Dissolution of corporation not cognizable in equity; effect of state being stockholder. 661. Instituting proceedings in corporate name, when an admission of corporate existence. 662. "When'corporate existence a jurisdictional fact. 663. When respondents presumed to be members of corporation. 664. Trustees of church ; when civil courts determined by decision of ecclesiastical tribunals. 665. Information does not lie against minister in church. 666. What constitutes forfeiture of franchise. 667. Non-user must be total ; banking corporation. 668. Information not allowed for mere mistake, no usurpation being shown. 669. Effect of information upon action at law against corporation. (470) CHAP. XV.] AGAINST PKIVATE CORPORATIONS. 471 • 670. Charter can not be attacked through title of oflBcer ; information not granted against mere servant. 671. Intendment in favor of regularity of proceedings of directors. 673. Effect of clause in charter as to time of dissolution. 673. Resignation of oflacers no bar to information. 674. Effect of votes offered for corporate officers, but not received. 675. Title to defunct office not tried by proceedings against successor. 676. Disclaimer and plea of not guilty ; evidence allowed. 677. Election of trustees not determined in chancery. § 647. The use of the original writ of quo warranto to cor- rect the usurpation of corporate franchises may be traced to a very remote origin, so remote, indeed, as to be shrouded in uncertainty, and to afford a fruitless topic of antiquarian speculation. It has already been shown, that in the reign of Edward I. the use of the writ was regulated by statute, which would indicate that it was then a well recognized remedy. Gradually, however, this ancient remedy fell into disuse, owing doubtless to the tedious nature of the process, and to the fact that the judgment rendered in the proceeding was conclusive, even against the crown, and in modern times its place has been almost entirely superseded by the information in the nature of a quo warranto. And the latter remedy has now come to be regarded, in England and most of the states of this coimtry, as the appropriate means of testing the right to exer- cise corporate franchises, as well in private as municipal corpo- rations, and as the proper corrective for a mis-user or non-user of such franchises. Indeed, this branch of the jurisdiction may be said to be of equal importance with that exercised over public officers, and the information is freely employed for the purposes indicated. In Arkansas, however, the ancient writ of quo warranto is regarded as the proper remedy to seize into the hands of the state the franchise of a corporation on the ground of mis- user or non-user. ^ § 648. A corporate franchise is 9, species of incorporeal hereditament, in the nature of a special privilege or immunity, proceeding from the sovereign power and subsisting in the hands of a body politic, owing its origin either to express ' State V. Real Estate Bank, 5 Ark. 595. 472 QUO WAEEANTO. [part II. grant, or to prescription wMcli presupposes a grant, i It fol- lows, therefore, that the sovereign power has the right at all times to inquire into the method of user of such franchise, or the title by which it is held, and to declare a forfeiture for mis- user or non-user, if sufficient cause appear, or to render judg- ment of ouster if the parties assuming to exercise the fran- chise have no title thereto. And it may be stated as a general rule, that wherever there has been a mis-user or non-user of corporate franchises, which are of the very essence of the eon- tract between the sovereign power and the corporation, and the acts complained of have been repeated and willful, they constitute just ground for a forfeiture in proceedings upon an information. 2 The question, however, to be determihed in • See People v. Utica Insurance Co. 15 Johns. Eep. 358. ^ Commonwealth «. Commercial Bank, 28 Pa. St. 383. And see Peo- ple «. Kingston & Middletown Turn- pike, 33 Wend. 198. Commonwealth D. The Commercial Bank, was a writ of quo warranto, issued out of the supreme court of the state, upon the relation of the attorney general, to procure a forfeiture of the re- spondent's franchises, on the ground of its having dealt in promissory notes, contrary to an express provi- sion of its charter, and having loaned money at higher rates than those prescribed by the charter. The extent of mis-user necessary to work a forfeiture is very clearly stated in the opinion of the court by Lewis, C. J., as follows : " These acts are expressly prohibited in the fundamental articles. The question then arises, do these constant and willful violations of the funda- mental conditions upon which the charter was granted, entitle the commonwealth to demand its for- feiture ? The question is not whether a single act, or even a series of acts of mis-user, through inadvertence or mistake, may work a forfeiture, but whether the constant and willful violation of these important condi- tions of the grant produce that effect ? Mr. Justice Story, in deliv- ering the judgment of the supreme court of the United States in Mum- ma II. Potomac Company, held, that 'a corporation, by the very terms and nature of its political existence, is subject to dissolution by forfeiture of its franchises for willful mis- user, or non-user.' 8 Peters' Rep. 387. Many years before that deci- sion was pronounced, the same principle was fully recognized by the same high authority in Truett et al. V. Taylor et al., 9 Cranch, 43, where the right of forfeiture for mis-user or non-user was held to be ' the common law of the land, and a tacit condition annexed to the creation of every corporation.' It is now well settled by numerous au- thorities, that it is a tacit condition of a grant of incorporation that the grantees shall act up to the end or design for which they were incor- porated ; and hence, through negh'ot CHAP. XV.] AGAINST PRIVATE CORPOEATIOWS. 473 such cases, is not whether a single act or a series of acts of mis-user, through inadvertence or mistake, mav work a for- feiture, but whether the constant and willful violation of the conditions of the corporate grant produces this result. ^ § 649. It is to be observed in the outset, that the courts proceed with extreme caution in proceedings which have for their object the forfeiture of corporate franchises, and such forfeitures are not to be allowed, except under express limita- tion, or for a plain abuse of power by which the corporation fails to fulfill the design and purpose of its organization. ^ Especially are the courts inclined to look with disfavor upon sucTi forfeitures where the law has 2:)rovided other sufiicient remedies, and where an adequate legal remedy is provided in damages, the corporate franchise will not be forfeited until an entire derangement of the corporate aifairs is shown. ^ Nor will the courts interfere by this extraordinary remedy against corporate bodies, where ample relief may be had in the ordinary course of proceedings at law. Thus, the information will not lie against a turnpike company, which is .charged with having opened its road through the relator's land without agreeing with him as to the compensation, and without having the damages ascertained in the manner provided by law, since in such case the corporation is a mere trespasser, and ample relief may be had by an ordinary action at law.* or abuse of its franchises, a corpo- It may be affirmed as a general ration may forfeit its charter, as for prinoiijle, that where there has been condition broken, or for a breach a mis-user, or a non-user, in regard of trust. See Angell & Ames on to matters which are of the essence Corporations, § 776, and the cases of the contract between the corpo- there cited. In the Attorney Gen- ration and the state, and the acts or eral v. Petersburg and Roanoke omissions complained of have been Railroad Company, 6 Iredell, 461, repeated and willful, they constitute it was held that the omission of an a just ground of forfeiture." express duty prescribed by charter ' Commonwealth v. Commercial is a cause of forfeiture, and that as Bank, supra. implied powers are as much pro- " State v. The Commercial Bank, tected by law as those which are 10 Ohio, 535. expressed, implied duties are equal- ' Id. ly obligatory with duties expressed, " People v. Hillsdale & Chatham and their breach is visited by tlie Turnpike Co. 2 Johns, Rep. 190. same consequences. 6 Iredell. 461. 474 QUO WARRANTO. [part II. § 660. Where a corporation is attempting, without author- ity of law, to exercise a franchise to which it is not entitled under its charter, and which under the laws of the state can only be exercised under a legislative grant, an information is the proper remedy to determine its authority, and if the title set up in defense be incomplete, the people are entitled to judgment of ouster. Thus, where under the laws of a state the right of carrying on banking operations is a franchise, which can only be used by virtue of a legislative grant, the information lies against an insurance company which is carry- ing on a banking business without authority of law, and judg- ment of ouster will be given in such case, i • ' People V. TJtioa Insurance Co. 15 Johns. Rep. 358. This was an in- formation in the nature of a quo warranto, filed by the attorney gen- eral against the respondent for hav- ing exercised hanking privileges without authority from the legis- lature. Spencek, J., observes, p. 387 : " If there are certain immu- nities and privileges in which the public have an interest, as contra- distinguished from private rights, and which can not be exercised without authority derived from the sovereign power, it would seem to me that such immunities and privi- leges must be franchises; and the act for rendering the proceedings upon writs of mandamus, and in- formations in the nature of quo warranto, more speedy and effect- ual, presupposes that there are fran- chises, other than offices, which may be usurped and intruded into. If, in England, a privilege in the hands of a subject, which the king alone can grant, would be a fran- chise, with us, a privilege or im- munity of a public nature, which can not legally be exercised without legislative grant would be a fran- chise. The act commonly called the restraining law, (sess. 27, ch. 114,) 1 R. 8. 712, enacts, that no per- son, unauthorized by law, shall sub- scribe to, or become a member of, any association, or proprietor of any bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, or transacting any other business which incorpo- rated banks do, or may transact, by virtue of their respective acts of in- corporation. Taking it for granted, at present, for the purpose of considering whether the remedy adopted is appropriate, that the de- fendants have exercised the right of banking, without authority, and against the provisions of the re- straining act, they have usurped a right which the legislature have enacted should only be enjoyed and exercised by authority derived from them. The right of banking, since the restraining act, is a privilege or immunity subsisting in the hands of citizens, by grant of the legis- lature. TJie exercise of the right of banking, then, with us, is tlie assei'tion of a grant from the legis- lature to exercise that' privilege, CHAP. XV.] AGAINST PRIVATE CORPORATIONS. 475 § 651. The non-perfomiance of the conditions of the act of incorporation is deemed, jper se, a mis-user sufficient to forfeit the grant on proceedings by information, and in determining whether such a departure from the provisions of the act of incorporation has been made as to work a forfeiture, the same and, consequently, It is the usurpa- tion of a franchise, unless it can be shown that the privilege has been granted by the legislature. An in- formation, in the nature of a writ ot quo warranto, need not show a title in the people to have the par- ticular franchise exercised, but calls on the intruder to show by what authority he claims it ; and if the title set up be incomplete, the people are entitled to judgment. (3 Kyd on Corp. 399 ; 4 Burr. 3146-7.) This position is illustrated by the nature and form of the information. The title of the king is never set forth; but after stating the fran- chise usurped, the defendant is called upon to show his warrant for exercising it. This considera- tion answers the argument urged by the defendant's counsel, that banking was not a royal franchise in England, and that it is not a franchise here which the people, in their political capacity, can enjoy ; for if their title to enjoy it need not be set out in the information, it is not necessary that it should exist in them at all. In the case of The King V. Nicholson and others, (1 Str.) it appeared that by a pri- vate act of parliament for enlarging and regulating the port of White- haven, several persons were ap- pointed trustees, and a power was given to them to elect others upon vacancies by death or otherwise. The defendants took upon them to act as trustees without such an elec- tion, and upon motion for an infor- mation in the nature of a quo war- ranto against them, it was objected, by the counsel for the defendants, that the court never grants these in- formations but in cases where there is a usurpation upon some franchise of the crown; whereas, in that case, the king alone could not grant such powers as are exercised by the trustees, the consequence of which was, that this authority was no prior franchise of the crown. To this it was answered, and resolved by the court, that the rule was laid down too general, for that informa- tions had been constantly granted when any new jurisdiction or pub- lic trust was exercised without au- thority ; and leave to file an infor- mation was, accordingly, granted. This case is a strong authority in favor of this proceeding. Many cases might be cited in which in- formations, in the nature of quo warranto, have been refused, where the right exercised was one of a private nature, to .the injury only of some individual. In the present case, the right claimed by the de- fendants is in the nature of a pub- lic trust; they claim, as a corpora- tion, the right of issuing notes, dis- counting notes, and receiving depos- its. The notes they issue, if their claim be well founded, are not obligatory on the individuak who compose th# direction, or are pro- prietors of the stock of the corpora- tion. These notes pass currently, 476 QUO WAEBANTO. [part II. general principles of construction are applicable which govern valuable grants to individuals upon conditions subsequent or precedent. In all such cases, a substantial performance of the conditions according to the intent of the charter is all that is required, and slight departures are overlooked, i And while, on the ground that the corporation have authority to issue them, and that they are obligatory on all their funds; the right claimed is one, therefore, of a public nature, and, as I conceive, deeply interesting to the community ; and if the defend- ants can not exercise these rights withoat a grant from the legisla- ture, if they do exercise them as though they had a grant, they are, in my judgment, usurping an au- thority and privilege of a public kind ; and we perceive that it is not necessary that the right assumed should be a prior franchise of the crown, or of the people of the state." ' People V. Kingston & Middle- town Turnpike, 23 "Wend. 193. And see People v. Bristol & Rensselaer- ville Turnpike, lb.- 223. In People V. Kingston & Middletown Turn- pike, the court. Nelson, C. J., after referring to the common law rule that a non-performance of the con- ditions of the act of incorporation is deemed, per' se, a mis-user that will forfeit the grant, say: "But granting this to be the general prin- ciple, the question still comes up for consideration, what departure from the provisions of the charter will work a forfeiture ? Shall every omission or non-performance of a condition of the grant have this eflfecA Though the proceeding by information be against the corpo- rate body, it is the acts or omissions of the individual corporators tliat are the subject of the judgment of the court. The powers and privi- leges are conferred and the condi- tions enjoined upon them; they obtain the grant and engage to per- form the conditions; and when charged with a breach, I do not perceive any reason against hold- ing them accountable upon princi- ples applicable to an individual to whom valuable grants have been made upon conditions precedent or subsequent. As to him, perform- ance is indispensable to the vesting or continued enjoyment. If a feofl- ment be made of lands upon condi- tion of paying rent, building a house, or planting an orchard, and a failure to perform, the feoffor may enter. So, if an oflSce be granted, a condition is implied that the party shall faithfully execute it, and for neglect the grantor may discharge him. 1 Bacon, 629 ; 15 Wendell, 291; 1 id. 388; 3 id. 498; 13 id. 530. Placing corporate grants upon this footing, there can be no great diffi- culty in ascertaining the principles that should govern conditions an- nexed to them. The analogous cases of individual conditional grants will give the rule. In these a reasonable and substantial per- formance according to the intent of the grantor is required. Shep. Touch. 133; 15 "Wendell, 291. In cases of conditions subsequent, if impossible to be performed, or ren- dered impossible by the act of God, the grantee is excused, and the CHAP. XV.] AGAINST PEIVATE OOEPORATIOWS. 477 as "we have already seen, the courts are inclined to look adversely upon applications for a forfeiture of the franchise, where other adequate legal remedy may be had, yet the exist- ence of other remedies at law will not necessarily deprive the public of the common law remedy by information for a mis- user of corporate franchises. ^ § 652. As regards the degree of title necessary to be shown by the prosecutor in order to support the information, a dis- tinction is taken between cases affecting merely private rights, where the proceedings are instituted in behalf of a private citizen, and cases affecting public interests, where the people are the real as well as nominal prosecutor. For esample, where the object of the information is to remove respondents from certain corporate offices of which they are incumbents, it is necessary that the relators show a title in themselves before they can properly inquire by what authority the respondents exercise their office or franchise, and a failure to show such title is fatal to the application.^ And it would seem that an estate is absolute. 2 Bacon, 676, tit. Condition; Shep. Touch. 133, 157. So, if waste be committed by a stranger, it shall not be a breach of the condition of the lease. 2 Bacon, 652. The whole law on the subject will be found reasonable, and noth- ing is required but what is within the means and ability of the party to comply with. It is emphatically so with respect to corporators, for we all know the nature of the con- ditions in their charters depends very much upon themselves; they usually settle the terms of the grant, and therein consult their own as well as the public interests. * * * I have said that the whole law on the subject of performance of con- ditions precedent or subsequent is reasonable and within the ability of the company to perform. A sub- stantial performance according to the intent of the charter is all that is required. Under the issues pre- sented this will be a question on the trial. If such a performance is shown the defendants will be en- titled to the verdict. The law in respect to individual grants on con- dition will afford familiar princi- ples to guide the court and jury. Slight departures are overlooked. The leaning of the law is against the party claiming the forfeiture; and if the failure is such as can not be disregarded in a court of law upon settled principles, and has arisen from mistake or accident, the legislature will apply the remedy. They, and not the court, possess the dispensing power." ' People «. Bristol & Rensselaer- ville Turnpike, 23 Wend. 222 ; Peo- ple V. Hillsdale & Chatham Turn- pike, lb. 254. ' Miller t>. English, 1 Zab. 317. 4*78 QUO WAEEANTO. [PAET II. information will not be allowed in behalf of one eorporatoi against another, on the ground of a defect of title which applies equally to the relator or to those under whom he claims, even though he has been for many years in the unin- terrupted enjoyment of his franchise, i Where, however, the proceedings are instituted solely for the protection of the public against an illegal usurpation of a corporate franchise, the people, through their attorney general, being the prose- cutor, the information need not show title in the people to have the particular franchise in question exercised. In such case it rests with the respondent to show title, and if the title relied flpon in defense be incomplete the people are entitled to judgment.^ § 653. The propriety of an information in the nature of a quo warranto as a remedy for an unlawful usurpation of an office in a merely private corporation, was formerly involved in some doubt, but the question may now be regarded as settled in this country. This species of remedy being generally employed in England in cases of public or municipal corpora- tions, the English precedents are inapplicable to this particular question, and its solution must be referred to the more general principles underlying the jurisdiction in question. Tested by these principles, an intrusion into an office of a merely private corporation may, in this country, be corrected by information with the same propriety as in cases of public or municipal cor- porations, since there is in both cases an unfounded claim to the exercise of a corporate franchise, amounting to a usurpa- tion of the privilege granted by the state. Indeed, the intrusion into a corporate office, created for the government and exer- cise of the franchise, can not, in principle, be distinguished from a usurpation of the franchise itself. And it would seem to be true, generally, that wherever a charter has been granted and the right to exercise an office under that charter is ques- tioned, the court may, in its discretion, permit an information to be ffled, as in the case of the office of trustees in a church ■ King ». Cudljpp, 6 T. R. 503 ; ' People v. Utica Insurance Co. 15 King V. Oowell, 6 Dow. & Ry. 836. Johns. Rep. 858. CHAP. XV.] AGAINST PRIVATE COKPORATIOWS. 479 corporation, or president and directors of an insurance com- pany.'^ In England, however, it is held that to warrant a quo warranto information against a corporate officer, his duties must be, to some extent, of a public nature, and where the case presented is merely that of a master in a private hospital, ' Commonwealtli «. Arrison, 15 S. & R. 127; Commonwealtli v. Gra- ham, 64 Pa. St. 339 ; The People v. Tibbets, 4 Cow. 358. In Common- wealth V. Arrison, Tilghman, C. J., for the court, says : " I find no in- stance of an information in the nature of a quo warranto in that country, (England,) except in a case of a usurpation of the king's pre- rogative, or of one of his franchises, or where the public, or at least a considerable number of people were interested. Neither do I find any case in which it has been denied that the court may, in its discretion, grant it, where an office is exercised in a corporation contrary to the charter. In England the number of corporations is very small in- deed, compared with the United States of America. Consequently the quantity of that kind of business which may be brought into our courts will be much greater than theirs. But that alone is not a suf- ficient reason for rejecting it. We are now to decide a general ques- tion on the right of the court; not on the expediency of exercising that right, either on the present, or any other case. Now to establish it as a principle that no information can be granted in cases of what the counsel call private corporations, might lead to very serious conse- quences. Perhaps it may be said that banks, and turnpike, canal, and bridge companies, are of a pub- lic nature; but yet they have no concern with the government of the country or the administration of justice. They are no further public than as they have to do with great numbers of people. But if numbers alone is the criterion, it will often be difficult to distinguish public from private corporations. Let us consider churches, for ex- ample. In some the congregation is very numerous, in others very small. How is the court to make the line of distinction ? If you say that the court has the right in both cases to grant or deny the informa- tion, according to its opinion of the expediency, there is no difficulty as to the right. But if it he alleged that there is a right in one case and not the other, the difficulty will be extreme. I strongly incline to the opinion that in all cases where a charter exists, and a question arises concerning the exercise of an office claimed under that charter, the court may, in its discretion, grant leave to file an information. Be- cause, in all such cases, although it can not be strictly said that any prerogative or franchise of the com- monwealth has been usurped, yet, what is much the same thing, the privilege granted by the common- wealth has been abuged. The party against whom the information is prayed, has no claim but from the grant of the commonwealth, and an unfounded claim is a usurpation, under pretence of a charter of a right never granted." 480 QUO WARKANTO. [PAET II. founded by a private person by law, without public duties or functions of any kind, an information will not lie.^ And it is said that no instance can be found of an information hav- ing been granted in England by leave of the court against persons for usurping a franchise of a merely private nature, and not connected with public government. ^ § 654. Notwithstanding the jurisdiction by information in the nature of a quo warranto, to enforce a forfeiture of a cor- porate franchise, is well established, the courts are averse to its exercise in behalf of merely private citizens. And where the purpose of the application is to seize into the hands of the state the franchises of a corporation, or to procure its dis- solution, the courts will not interfere in behalf of a private citizen having no other interest in the controversy than such as pertains to every other citizen. The abuse of a franchise granted by the state being a public wrong, the proceedings must be instituted by the public prosecutor or other authorized representative of the state, and in such cases a private citizen is not entitled to the aid of this extraordinary remedy, even though he be a creditor of the corporation. ^ The information in siich case is a public prosecution, involving the very exist- ence of the corporation, having for its object the recovery to the state of a forfeited franchise and not the redress of a private grievance. Such cases, therefore, are clearly distin- guishable from those which affect only the administration of corporate functions, and do not go to the life of the corpora- tion itself.* An exception, however, is recognized in cases ' Queen «. Mousley, 8 Ad. & E. N. * Murphy v. Farmers' Bank, 20 S. 946. Pa. St. 415. This was a proceeding ' King «. Ogden, 10 Barn. & Cress, in quo warranto, in the name of the 330. state, upon the relation or sugges- ' State «. Paterson & Hamburg tion of a private citizen, averring a Turnpike Co. 1 Zab. 9 ; Common- mis-user and abuse of the franchise wealth V. Farmers' Bank, 2 Grant's of a banking corporation and seek- Cases, 392 ; Commonwealth 0. Alle- ing a forfeiture of its charter. The gheny Bridge Cj. 20 Pa. St. 185 ; court, "Woodwaed, J., after stating Murphy v. Farmers' Bank, lb. 415 ; that the substance of the statute of Commonwealth v. Philadelphia, Anne had been adopted in Pennsyl- Germantown & Norristown R. Co. vania as part of thfi common law lb. 518. of that state, and that the clause of CHAP. XV.] AGAIlfST PRIVATE CORPORATIONS. 481 aifecting only private or individual rights and wHcli merely affect the administration of the corporate functions, without affecting the existence of the corporation, and in such cases it the statute autliorizing the infor- mation on the relation of " any per- son or persons desiring to prosecute the same," did not extend the rem- edy to a private relator in a case of public prerogative, proceed to say : "The usurpation of an office estab- lished by the coMtitution, under color of an executive appointment, and the abuse of a public franchise under color of a legislative grant, are public wrongs and not private injuries, and the remedy by quo warranto, in this court at least, must be on the suggestion of the attorney general, or some author- ized agent of the commonwealth. For the authorities I refer myself to those cited in the argument of the respondent's counsel. They estab- lish this as the uniform construc- tion in questions involving the ex- istence of a corporation. In ques- tions involving merely the adminis- tration of corporate functions, or duties which touch only individual rights, such as the election of offi- cers, admission of a corporate offi- cer, or member, and the like, the writ may issue at the suit of the attorney general, or of any person or persons desiring to prosecute the same. What is a corporation? A franchise. And Blackstone defines a franchise to be a part of the royal prerogative, existing in the hands of the subject. The sovereignty of every state must be lodged some- where. Limited by such conces- sions as popular violence has from time to time wrung from reluctant monarchs, it resides in England, in 31 the crown. In Pennsylvania, it re- sides in the whole mass of the peo- ple, and the three co-ordinate de- partments of government are the trustees appointed by the people for the exercise of so much of their sovereimty as they have not, by the bill of rights, denied them, nor by the constitution of the United States yielded to the general government. The legislature of Pennsylvania may establish a corporation, that is, grant out a part of the sovereignty of the state, because, being a gen- eral trustee for the people, and not forbidden, they are qualified to do so. The general government being a government of derivative powers, congress can not establish a corpo- ration, because the power to do so is not granted. Our legislature can, because the power is not withheld A corporation then exists in Penn- sylvania by virtue of a constitu- tional exercise of the sovereign power. Its existence is proof of the public will, which is nothing else than the will of the majority. Can one man so employ any of the departments of government as to tear down the fabric of a majority? Regarding the judiciary as one of the trustees of the sovereignty of the people, by which I mean the whole people, how can its functions be called into exercise against the existence of a public institution, except upon the suggestion of some agent of the whole people ? If they may, if individual caprice, passion, prejudice, or interest may use the judicial arm of the government to 482 QUO WAKEANTO. [PAET II. is held that the courts may interfere, on a proper showing, upon the relation of a private citizen. i § 655. It is to be borne in mind that the question of whether an information will lie in the case of a corporate office, is dependent upon the fact of possession or user of the office or franchise in question, and unless an actual user can be shown, in addition to a claim to the office, the information will not lie. 2 And a claim to the office which has been unsuc- cessfully asserted, or which may possibly be asserted success- fully in the future, can not take the place of yr be equivalent to the usurped possession which must be shown as a condition precedent to filing the information. ^ ISTor is it sufficient to allege generally that the respondent has accepted the office, without specifying the mode of acceptance, or the particular acts constituting it.* If, however, an actual user can be shown, it is not necessary in addition thereto to show an acceptance, it being sufficient that the party against whom the proceed- ings are instituted has acted in the office, regardless of whether there has been a formal acceptance.^ overthrow what the legislative or course. These are general views executive arms have erected, the which harmonize with the doctrine sovereignty of the majority is ex- of the cases. And, therefore, whilst tinguished, and the departments of I recognize the right of any relator the government, intended to work to have a quo warranto in the su- in harmony, are brought into fatal preme court who is desirous to conflict. A house divided against prosecute the same to redress any itself can not stand, and no more private grievance that falls within can a state. If quo warranto be that remedy, I deny the right of any given to individuals to dissolve cor- party, except the attorney general, porations, power will cease to steal or other officer of the common- from the many to the few, for here wealth, to sue for it to dissolve a will be a transfer of it bodily. With corporation." a corrupt judiciary, which the his- ' Murphy «. Farmers' Bank, s«p7'a. tory of other countries teaches us is " Queen v. Pepper, 7 Ad. & E. 745. not an impossible supposition, act- And see People ^. Thompson, 16 ing as the instrument of private Wend. 655. passions, any institution established ' Queen v. Pepper, supra. by the immediate representatives of * Queen «. Slatter, 11 Ad. & E. the people, and existing by will and 505. consent of the people, and for their ° Queen v. Quayle, 11 Ad. & B. convenience and benefit, may be 508. frustrated without appeal or re- CHAP. XV.J AGAINST PRIVATE CORPOEATIOWS. 483 § 656. Where, under the laws of a state, the information is allowed in cases where " any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or mili- tary, or any franchise," or where " any association or number of persons shall act as a corporation without being legally incorporated," to warrant the proceedings by information something more is required than a mere claim to the exercise of the franchise, and an actual user must also be shown. * And where, under such a statute, the information charges respondents with claiming and using, the franchise of a body corporate, it is not necessary that they should deny the claim to the franchise,, but it is sufficient that they deny the user, since this constitutes the gravamen of the charge.^ § 657. As regards the exercise of corporate franchises dependent not upon legislative grant, but upon prescriptive right and long user, it may be remarked that every presump- tion of law is exercised in favor of long possession. And where it is shown that the franchise which is assailed has been exercised from a period so remote that its foundation can not be distinctly traced, or its origin definitely assigned, the exer- cise of the franchise will not be presumed to be a usurpation, and the courts will not, by granting the information, originate proceedings for questioning its validity.' § 658. While the interest of a corporator in a private cor- poration is generally regarded as sufficient to make him a proper relator, in proceedings for an information against the usurpation of corporate offices, yet he may by his own acqui- escence forfeit his right to institute the proceeding, even though the title of respondents to the offices be defective. Thus, where members of a corporation have attended a cor- porate meeting and participated in its deliberations, voting for officers and acquiescing in the result of the election, although knowing certain votes to be illegal, they will not afterwards be allowed to question the legality of the election ' People V. Thompson, 16 Wend. ' Queen ®. Archdall, 8 Ad. & E. 655. 381. Ud 484 QUO wari:akto. [part ii. by an information. i And the granting or refusing leave to file an information on behalf of a private person, for the usurpation of an office under a private corporation, is regarded as resting within the discretion of the court, and the applica- tion in such case should show clearly that the office in question is a corporate office. ^ § 659. Long acquiescence on the part of corporators in the exercise by respondents of a corporate franchise may be suffi- cient to bar them from relief by information, and the fact that they show no right in themselves or in any other persons which depends upon their invalidating respondent's title is an important element in determining whether leave shall be granted to file the information, and these circumstances com- bining the application will be denied.^ And the conduct of the relators, as well as their motives and object, and the con- sequences to the corporation of granting leave to tile the information, are all proper elements to be considered by the court in passing upon the application.* So the fact that the relator stands in the same situation with the respondent, and that the impeaching of respondent's title must necessarily dissolve the corporation, are proper circumstances to be taken into consideration by the court in refusing the application. ^ But it would seem that the fact of relator's title having been previously attacked by a similar information, which was after- wards abandoned, will have no weight with the court in deter- mining whether the application shall be granted or refused.** § 660. The dissolution of a corporation and the revocation of its franchises, are generally considered matters of legal rather than of equitable cognizance, and unless a court of chancery is specially empowered to divest a corporation of its franchises, the more appropriate remedy for this purpose is by an information in the nature of a quo warranto, wherever there is a body corporate de facto, assuming to act in that ' State ». Lehro, 7 Rich. 334. And also, King «. Stacey, 1 T. E. 1. see King e. Stacey, 1 T. R. 1. "Rex b. Dpws, %wpra. And see " Gunton s. Ingle, 4 Cranch C. C. King v. Bond, 3 T. R. 767. 138. s King v. Bond, supra. » Rex V. Daws, Burr. 3130. See, « Id. CHAP. XV.J AGAINST PRIVATE CORPORATIONS. 485 capacity, but which from some defect is not authorized to exercise corporate powers. ^ And the fact that the state is interested in the corporation as a stockholder, constitutes no sufficient reason why it should not, in its sovereign capacity, proceed against the corporation by an information to procure a forfeiture of its franchise. ^ § 661. Some conflict of authority has existed in this coun- try, as to the effect of instituting proceedings against a cor- poration, eo nomvne, as an admission of its corporate exis- tence. But the weight of authority may now be regarded as sustaining the proposition, that the effect of filing an informa- tion against a corporation by its corporate name, to procure a forfeiture of its charter, or to compel it to disclose by what authority it exercises its corporate franchise, is to admit the existence of the corporation. Where, therefore, the informa- tion is filed against the respondent in its corporate name, and process has been issued and served accordingly, and the respondent has appeared and pleaded in the same corporate character, its corporate existence can not afterward be contro- verted. * Nor is it necessary in such case that the respondent, having pleaded its charter, should allege a performance of those acts which were required as conditions precedent to its organ- ization and legal existence.* Where, however, the action is instituted against individ\j^ls, charging them with usurping the privileges and franchises of a body politic and corporate, it is not a sufficient return by such respondents to show the act of incorporation, and that they own a portion of the cap- ' Bakers. Administrator of Back- use of the corporate name is not an VIS, 33 111. 110; Commonwealth ®. affirmation thiat tlie respondent is James River Co. 3 Va. Oas. 190. actually a corporation, but only that - Commonwealth c. James River by that name acts have been done Co. supra. aa alleged in the information, and ^ State n. Cincinnati Gas Light Co. the respondent is then called upon 18 Ohio St. 363 ; State v. Commer- to show by what authority such acts uial Bank of Manchester, 33 Miss, have been done. 474. But see, co;!*?-;!, Peoples. Bank * State «. Commercial Bank of of Hudson, 6 Cow. 317, where it is Manchester, 38 Miss. 474. And see held that the information in such Attorney General v. Michigan State case is merely descriptive, and the Bank, 3 Doug. 359. 486 QUO V/AERANTO. [PART II. ital stock of the company, being members thereof, and that as sucli members in connection with other members they have exercised the franchises in question. In such case the return should aL-o show that the respondents are empowered by the corporation to do the acts complained of, and that their action is binding and obligatory upon the corporation itself, since otherwise it is merely their individual action. ^ If, however, the inform:i;iun is filed against a corporation requiring it to sl)o\',' by \vh:it authority it exercises its franchises, it is a suf- ficient defense, jmma fade, to set up in the return the char- ter under which the corporation is warranted in exercising the pri\'ileges and franchises which it is charged with having usurped, since the charter shows that the corporation was legally created in the first instance, and the law will presume its continued exfstence down to the time of filing the informa- tion. ^ § 662. Where the object of the information is to correct the usurpation of a corporate oiEce, a difierent doctrine pre- vails from that applicable to the cases just considered. And where the information is filed for the usurpation of an ofiice in a corporation not created by special charter, but ineorjio- rated under the general law of the state for that purpose, the existence of the corporation, as such, becomes a jurisdictional fact which must be clearly set forth in the pleadings, and the mere allegation of corporate existence is insufficient, being only a conclusion of law drawn by the pleader. The corpo- ration being organized under the general law, by acts m pais, the mere allegation of corporate existence can not apprise the court of the facts constituting such corporate existence, and until this is shown it is not made to appear that there has been a usurpation of any office.^ ' State v. Brown, 33 Miss. 500. Justice Coolbt, as follows : " Wlien See S. 0. 34 Misa. 688. any person or association of per- ^ Attorney General e. Michigan sons is charged with usurping the State Bank, 3 Doug. 359. franchise of a corporation, it is suf- ^ People V. DeMill, 15 Mich. 164. ficient for the attorney general to The reasons in support of the doc- call upon them, in general terms, trine of the text, are very clearly to show by what authority they laid down in the opinion of Mr. claim the right to exercise such CHAP. XV.] AGAINST PBIVATE COEPOKATIONS. 487 § 663. Where the proceedings are instituted against certain named persons, and others alleged to be too numerous to be included in the record, charging them with usurping the fran- chises of a corporation, and the respondents named plead the existence of the corporation, with full right to use the fran- chise in question, and allege that they are directors, but neither admit nor deny the allegations that they assume to be mem- bers of the corporation, except in so far as they admit that they assume to act as directors, the court will, in the absence of evidence to the contrary, regard them as claiming to be members of the corporation, and will consider their plea as a plea in behalf of all the respondents.' § 664. The doctrine may now be regarded as well estab- lished, that an information in the nature of a quo warranto is the appropriate remedy against persons usurping the fran- chises and privileges of a board of trustees of an incorporated church association. 2 And it is to be observed that in cases involving the right of appointment to offices of trust, which are controlled by and subject to the authority of ecclesiastical tribunals, or denominational and sectarian authorities, the franchise; but when the very na^ the usurpation of the franchise, ture of the proceeding is such as The information in a case lilie the to assume the actual existence of a present must, therefore, show that corporatio?!, and it is alleged that a corporation exists; for until that defendants usurp some authority is shown, it is not made to appear therein, no ground whatever is that there is any office into which shown for calling upon defendants the defendants can intrude. The to show their right until it is made precedents in proceedings against to appear that a corporation exists, public officers, are not applicable. The claim to a corporate franchise, in all particulars, to the c;ise before which does not exist in fact, may us ; since those are cases where the be a great public wrong, demand- courts must judicially take notice ing immediate redress ; but the of the existence of the officers, and claim to an office in a corporation no allegations are necessary to show which has no existence, can hardly how they were created." be a matter of public concern, un- ' State v. Sherman, 23 Ohio St. less accompanied with the attomjit 411. to exercise a corporate franchise ; " Commonwealth v. Arrisou, 15 in which case the remedy would be S. & K. 137 ; Commonwealth v. Q-ra^ an information, not for the unlaw- ham, C4 Pa. St. 339. And see State ful intrusion into an office, but for v. Farris, 45 Mo. 183. 488 QUO WARRANTO. [pART II. civil courts are sometimes obliged, from the nature of the case, to follow and be guided by the decisions of the eccle- siastical tribunals, as to the qualifications for the offices in question, and they may be determined by the action of such tribunals in passing upon the questions presented by the information. Thus, where it is provided by the charter of an educational institution, that vacancies in its trustees shall be filled by a certain presbytery of a church, in determining what body is entitled to fill such vacancies, the civil courts will be governed by the decision of the supreme judicature of that church having jurisdiction of the matter, and if it has decided that the presbytery claiming the right to fill the appointment is no longer connected with the church, such decision will be considered final on proceedings by information against the trustees.! § 665. While, as we have just seen, the jurisdiction by information in the nature of a quo warranto is properly exer- cised against persons usurping offices in religious incorpora- tions, it does not, in this country, extend to ministers of churches. The position of a minister is considered by the courts as in no sense a public office, neither is it in any man- ner connected with the administration of justice, nor is it a right or franchise belonging to the state, each religious asso- ciation being left to the management of its own concerns without control by the state, save where civil and pro]-)erty rights are involved. Hence an information will not lie to show by what authority one exercises the functions of a min- ister in a religious incorporation, especially where the person seeking the aid of the court and the respondent do not claim under the same act of incorporation. ^ § 666. Upon the question of what constitutes such a sur- render of corporate rights as to amount to a forfeiture of the franchise warranting judgment of ouster, the general rule is laid down that the sufiering an act to be done which destroys the end and aim for which the corporation was created, is ' State V. Farris, 45 Mo. 183. ' Commonwealth i>. Murray, 11 S. & K. 73. CHAP. XV.] AGAINST PRIVATE OORPOEATIOKS. 489 equivalent to a direct surrender of the franchise. Thus, where it is alleged in the information that the respondent, a banking association, has assigned and transferred so much of its property as to render it unable to continue banking operations, a sufficient case is presented to warrant a forfeiture.' Where a mis-user is relied upon as the foundation for proceedings to procure a forfeiture of the corporate franchise, it must appear that there has been such a neglect or disregard of the corporate trust, or such a perversion of it to private purposes, as in some manner to lessen the utility of the corporatiop to those for whose benefit it was instituted, or to work some public injury. In other words, the misuser must be in some sense a misdemeanor, in violation of the trust. ^ ^ 667. To constitute a non-user of the franchise a sufficient ground for a forfeiture upon an information quo warranto, there must be a total non-user, and in the case of a banking association, a mere refusal to pay, unless arising from con- tinued insolvency, is no ground for a forfeiture.^ And it is important to observe that the right to prosecute for a for- feiture ceases with the cause on which the information is based. Where, therefore, an information is tiled against a banking corporation for a forfeiture of its franchise because of insolvency, although the corporation has actually been in an insolvent condition, yet if the proceedings are not taken until after it has again become solvent, respondent is entitled to judgment upon demurrer presenting this question.* § 668. The information will not be granted to disturb the affairs of a corporation in behalf of persons who show no injury to their franchise, and upon the ground of a mere mistake on the part of the corporate officers, there being no usurpation and no new privilege or franchise being acquired. ^ And it is an additional ground for refusing to interpose in 1 People V. Bank of Hudson, 6 son, lb. 217. Cow. 217. * People v. Bank of Niagara, 6 " State «. Real Estate Bank, 5 Ark. Cow. 196 ; People v. Bank of Hud- 59,5. son, lb. 217. ' People v. Bank of Washington, ' King v. Stacey, 1 T. R. 1. 6 Cow. 211 ; People v. Bank of Hud- 490 QUO WAERANTO. [PAKT II. such a case, that the persons complaining were present and acquiesced in the action of wliicli they complain. ' § 669. As regards the effect of proceedings by information, upon an action already pending at law in the ordinary form against the same corporation, it is held that the pendency of the information does not of itself confer any right to quash upon motion the proceedings in the action at law. Such a motion to quash, being allowable only for defects apipearing on the face of the proceedings, can not, therefore, be sustained because of the subsequent institution of proceedings by information against the same corporation. ^ § 670. The information will not be allowed where its object is to attack a charter granted by the sovereign, by assailing the title of an officer appointed under the charter, and who is in actual possession of Ids office. ^ Nor will the remedy by information be extended to the case of a mere servant of a corporation, who exercises no functions or autliorit}' under the sovereign power.* § 671. Where the information is brought for the jjurpose of testing the right to an office in a private corporation, the proceedings of the board of directors of the corporation in the removal and appointment of officers, within the scope of their powers, are to be presumed correct until the contrary is shown. Every reasonable intendment is made in favor of the regularity and correctness of such proceedings, and the burden of proof, therefore, rests upon him who assails their correctness. ^ § 672. A clause in the charter of an incorporated company providing that it shall not be dissolved before a certain speci- fied time, or until all its debts are paid, does not secure to the corporation immunity from a dissolution by a seizure of its franchises on proceedings by information. Such a clause is regarded rather as a right retained by the state than as a privilege granted to the corporation, being intended only to ' King «. Stacey, 1 T. R. 1. ' King v. Corporation of Bedford " Commercial Bank v. McCaa, 16 Level, 6 East, 356. Miss. 720. ° State «. Kupforle, 44 Mo. 154. ' Queen «. Taylor, 11 Ad. & E. 949. CHAP. XV.J AGAINST PRIVATE COEPOEATIOWS. 491 prevent its voluntary dissolution before the expiration of its charter, without payment of its debts. ^ § 673. Upon a quo warranto information to test the title of directors in an incorporated company, a plea by the respond- ents setting up the fact of their resignation and the appoint- ment and qualification of their successors, constitutes no answer to the information. If such a defense were to be allowed, it would be in the power of respondents, by succes- sive resignations, to render the proceedings wholly ineffectual. And such a case is clearly distinguishable from cases where the term of office expires pending the proceedings. ^ § 674. Where the information is sought to try the title to corporate offices, the court, in determining who was actually elected to the office, will not give the same effect to votes offered but not received, as is given to votes actually received by the judges of election. It can only oust the respondents from the office which they assume to hold, if they have not been legally elected thereto, and afford the party whose votes were improperly rejected an opportunity of voting at another election. ^ § 675. As regards the time when the proceedings should be instituted to test the title to a corporate office, while it is conceded that if the information be brought before the expira- tion of the term of office, it may be continued and deter- mined after its expiration, yet the rule is otherwise where the term of office has already expired, and the title to a defunct office will not be tried in a proceeding instituted against the successor in office.* § 676. Where the information charges respondents as indi- viduals with having usurped and exercised the privileges of a banking corporation, and they plead a disclaimer of any right to use and enjoy the franchises mentioned in the information, together with a plea of not guilty allowed them by statute, if the prosecution introduces evidence tending to show the ' State Bank of Indiana v. The » State v. McDaniel, 32 Ohio St. State, 1 Blackf. 267. 354. 2 State V. McDaniel, 23 Ohio St. " Commonwealth v. Smith, 45 Pa. 354. St. 59. 492 QTJO WAEEANTO. [PAET II. exercise of the franchises in qnestion by the respondents as individuals, it is competent for them to show by proper evidence that the corporation was duly organized by law, and that they did the acts complained of, not in their individual capacity, but as officers of the corporation. ^ § 677. The legality of the election of trustees of a private corporation, such as a cemetery association, and their conse- quent right to conduct the affairs of such association will not be determined by bill in chancery, such a case being regarded as one which falls appropriately within the jurisdiction of the common law courts by proceedings in the nature of quo warranto.^ ' State V. Bro-wn, 34 Miss. 688. s HuUmaa «. Hohcomp, 5 Ohio St. 237. OHAPTEH XYI. OF QUO WAERANTO AGAINST MUNICIPAL CORPORATIONS. § 678. The remedy as recognized in England and America. 679. Municipal franchises formerly seized in England ; case of city of London. 680. Franchises not forfeited or seized in this country. 681. Statute of Anne and its effect. 683. Information allowed in England by private relator ; considerations influencing the court; discretion of kings bench. 683. Discretion exercised as to private relator in this country. 684. Information against pretended corporation. 685. Information lies to determine title of members of common council. 686. Acquiescence in irregularities bars relief. 687. Limitations upon the rule as to acquiescence. 688. Corporation must actually be in existence; incompatible offices; user. 689. Information not allowed to interfere with municipal legislation. 690. Does not lie for performance of duty ; nor to question validity of municipal subscription. 691. When allowed on information and belief. 693 Period of limitation at common law and by statutes in England. 693. Effect of disclaimer and judgment of ouster upon second infor- mation. 694. Distinction between usurpation of office, and of franchise attached to office. 695. Inquiry as to corporate existence ; office held at pleasure of muni- cipal board. 696. Charter can not be attacked by information against officer. § 678. The propriety of a quo warranto information as a corrective of usurpations upon the franchises and privileges of municipal corporations, as well as to determine the title by which such bodies exercise their franchises, has long been recognized in England. Indeed, the jurisdiction by informa- tion in the nature of a quo warranto, as exercised in that country, has been almost wholly confined to cases affecting (493) 494 QUO WARRANTO. [PAET II. offices or franchises in mnnicipalities, and tlie reports affi)rd but few instances where the remedy has been applied in cases of private or trading corporations, and still fewer where it Jias been invoked to determine questions of disputed title to public office. In the United States, the information has been less frequently employed against municipal corporations, although the propriety of the remedy in such cases is satisfactorily established.' § 679. In England, the information was tbrmerly employed where it was desired to seize into the hands of the crown the franchises and liberties of any municipal corporation, and the remedy was freely resorted to by Charles II. and James II. for this purpose. Indeed, the jurisdiction by quo warranto infor- mation, during the reign of these monarchs, was employed exclusively to strengthen the power of the crown, at the expense of the principal municipalities throughout the king- dom, and it was invoked upon the most frivolous pretexts, and judgments of forfeiture and seizure were had in many cases aiFecting the oldest and wealthiest municipalities in the kingdom. These extraordinary proceedings reached their cul- mination in the case of the city of London, decided in the thirty-fifth year of Charles II., in which judgment of for- feiture of the entire franchises of the city was pronounced, and they were seized into the hands of the crown. ^ The case ' See upon tlie general subject of electing sheriffs of tlie city and quo warranto to municipal corpora- county of London and county of tions, Dillon on Municipal Corpora- Middlesex; third, that the mayor tions, ch. XXI, where a valuable and aldermen should he justices of collection of cases may he found. the peace and hold sessions of the ' Rex V. City of London, Hilary peace. To these several charges of Term, 35 Charles II. 3 Harg. State usurpation, the municipal authorl- Trials, 545. The information in ties pleaded in substance, first, tha*. this case set forth that the mayor, they were a body corporate, etc., by commonalty and citizens of Lon- prescription, and second, by divers don claimed and used, without war- charters from the crown, under rant, the liberties and 'privileges, which they justified the use of the first, of being a body corporate and franchises in question. The attor- politic, by the name of mayor and ney general replied, denying that commonalty and citizens of the city they were a body corporate, and of London ; second, of having and pleading, first, that they had ille- CHAP. XVI.J AGAINST MUNICIPAL CORPORATIONS. 495 has never been regarded as a precedent in En^knd, and the judgment was reversed by a subsequent act of parliament, which also provided that the franchises of the city should never be seized for any misdemeanor or forfeiture, i § 680. In this country, it is believed that no instances can be found where the charter or franchises of a municipal cor- poration have been forfeited or seized upon proceedings in gaily exacted money from the king's subjects by a pretended by-law, levying charges upon persons sell- ing provisions in the public mar- kets; second, that the respondents had voted to exhibit a certain peti- tion to the king, setting forth that, by the prorogation of parliament, the prosecution of public justice of the kingdom had received inter- ruption. To this the municipal au- thorities pleaded several pleas by way of rejoinder, and protested that no act, deed or by-law made by tlie mayor, aldermen and common council, was the act or deed of the body corporate. They also rejoined that the tolls imposed upon persons coming to market were reasonable and just, and that the city was fully authorized to exact such tolls to provide for the expenses of main- taining the markets, the right to ex- act tolls being founded upon pre- scription. Other pleadings followed on both sides, but the above suffi- ciently indicate the issues presented. The case was exhaustively argued both for the crown and the city, the principal burden of the argument turning upon the question of whether the municipal franchises could be forfeited and seized into the king's hands. The court were unanimously of opinion : " 1. That a corporation aggregate might be seized. That the statute 38 E. 3, cap. 10, is express, that the fran- chises and liberties of the city, upon such defaults, should be taken into the king's hands. And that bodies politic may oifend and be pardoned, appears by the general act of pardon, 12 Car. 3, whereby corporations are pardoned all crimes and offenses. And the act for regulating corporations, 13 Car. 2, which provides that no corpora- tion shall be avoided for anything by them misdone or omitted to be done, shows also that their charters may be avoided for things by them misdone, or omitted to be done. 2. That exacting and taking money by the pretended by-law was extor- tion, and a forfeiture of tlie fran- chise of being a corporation. 3. That the petition was scandalous and libellous, and the making and publishing it a forfeiture. 4. That the act of the common council was the act of the corporation. 5. That the matter set forth in the record did not excuse or avoid those for- feitures set forth in the replication. 6. That the information was well founded. And gave judgment that the franchise should be seized into the king's hands, but the entry thereof respited till the king's pleas- ure was known in it." ' 3 William & Mary, ch. 8, 9 English Statutes at Large, 79. 496 QUO WAEKANTO. [PAET IX. quo warranto, on account of the misconduct of corporate offi- cers. The privileges and franchises granted by charters to municipal bodies, under the American system, are deemed rather for the beneht of the people of the municipality, than for its officers, or for the corporation as such. Hence the courts will not permit usurpations on the part of municipal officers, or contests between such officers as to their relative functions and powers, to be used as the foundation for pro- ceedings in quo warranto . to forfeit the franchises of the municipality. The charter being the charter of the people, their rights and privileges are not to be taken away because of contests between corporate officers as to their relative rights, since any usurpation on the part of such officers may be corrected by suitable process, without resorting to a for- feiture of the franchises and liberties of the citizens and corporators. 1 ' Commonwealtli v. City of Pitts- burgh, 14 Pa. St. 177. See also Dil- lon on Municipal Corporations, g 730. In Commonwealth ». City of Pittsburgh, the doctrine of the text was very clearly enunciated in the opinion of the court, by Mr. Justice CoDLTEK, as follows ; " The attor- ney general is required by the 3d section of the act in relation to writs of quo warranto, passed 16tli of June, 1836, whenever he shall believe that any corporation has forfeited its corporate rights, priv- ileges, or franchises, to file a sug- gestion and to proceed to the deter- mination of the matter, and in pur- suance of this power he has filed this suggestion against the corpo- ration of the mayor, aldermen, and citizens of Pittsburgh ; and alleges that by the ordinance of the coun- cils wliich repealed a certain prior ordinance, passed in 1831, vesting in the mayor the appointment of the night watch and patrol ; also by vesting the appointment of said watch in a committee of councils, and finally by the appointment of the night watch by the councils themselves; the said corporation has claimed to use. and has used unlawfully, liberties and franchises not belonging to it; and all which privileges the said corporation has usurped against the commonwealth, etc. ; and a rule was granted, at his Instaoce, against the corporation, to show cause why a writ of quo warranto should not issue against the said corporation, commanding them to appear and show by what authority they exercised such priv- ileges and franchises. The corpo- ration appeared at the return of the rule, and was heard by its attor- neys, and the commonwealth wa.s heard by the representative of the attorney general. The corporation, even admitting all the allegations in the suggestion, has not usurped from the commonwealth any lib- erty, franchise, or privilege; nor has it by any thing, or act, shown CHAP. XVI.J AGAINST MTJNIOIPAL COEPOEATIONS. 497 § 681. The statute of Anne extended the remedy by quo warranto information, which had before been considered much in the nature of a prerogative one, to private citizens desiring to test the title of persons usurping or executing municipal oiEces and franchises, and rendered any person a competent relator in such proceedings who might first obtain leave of to this court, invaded the rights or privileges of any other corporation, Dor the rights or privileges of the people at large. It has used no franchise, or privilege, that did not belong to the corporation. It has done nothing more than use priv- ileges and franchises, unquestion- ably belonging to the corporation, and incident to the emergencies and requirements of its beneficial existence, to wit: the appointment of a night watch. That the corpo- ration possessed this power, will hardly be questioned by any rea- sonable man. That two of the func- tionaries, the legislative depart- ment, the councils, and the exec- utive department, the mayor, have disputed about their respective pow- ers in the matter, is admitted. But the charter was not granted for the benefit of the mayor or the councils either, but for the benefit of the peo- ple of the great municipality. The law has abundant means and pow- er of settling this dispute between the functionaries, without detriment to the people or corporation. Then why should the people be punished for the wrangling of the officers. The charter is the charter of the people, and shall they be punished by wresting it from them, and throwing their whole concerns into confusion and disorder, because the mayor and council dispute? The municipality of the city govern- ment has been built up and per- 32 fected through a course of many years, and by many acts of assem- bly ; and by many by-laws and or- dinances, as they were suggested by experience and time. And shall all this fair fabric, on which lay so many duties and obligations, on which most of the welfare and security of the citizens of a great community depend, be torn down and destroyed by the turbulence of any officer or officers ? A case has been cited from the reign of the Stuarts in England, as authority and precedent, in the instance of the forfeiture of the charter of Lon- don, for irregularity in passing some ordinance. But it must be recollected that the object and pol- icy of the royal government at that time, was to circumvent the liber- ties of the people, and one means of doing that was to forfeit tlie franchises of corporations, through the instrumentality of pliant judges who then held the office at his will, to the use of the king, who granted them out to his creatures upon prin- ciples less favorable to liberty. But after the revolution in 1768, when that race was driven from the throne, the parliament reversed this decision or judgment, and enacted that thereafter, the fran- chises of the city should not be forfeited 'for any cause by the courts. And why should the fran- chise of any municipal govern- ment be forfeited on account of tho. 498 QFO WAERAWTO. [part II. the court to file an information. It also provided for judg- ment of ouster, as well as a fine against persons found guilty of usurping or intruding into such ofiices and franchises, and authorized the court to grant a reasonable time for plead- ing, besides fixing the costs of the proceedings. ^ The object of the statute of Anne, in as far as relates to the usurpation of corporate franchises, was held to be the promotion of speedy justice against such usurpation, as well as to quiet the pos- session of those who were lawfully entitled to the exercise of the franchise. 2 And the effect of the act was to vest the court with discretionary powers as to granting leave to file the infor- mation, which is not allowed as of course, but only in the exercise of a sound judicial discretion applied to the partic- ular circumstances of each case. ^ § 682. In England, the rule is believed to be absolute, that an information will not lie against persons for claiming to act as a private corporation, unless the proceedings are instituted in the name of the attorney general.* A distinction, however, misconduct, alleged or real, of Its officers? The usurpation of offi- cers can he corrected by suitable means, leaving untouched the rights, franchises, and liberties of the citizens and corporators. If the mayor, who we must believe from the force of the suggestion, is the real complainant, had filed a suggestion against the council for usurping his functions, this court could, under the eighth section of the act relating to writs of quo warranto, have mrde him, although the relator, a party respondent also, and then determined on his rights and authority, as well as on those of the councils; and could have pronounced judgment of ouster against whoever was in the wrong ; and in such case, by the I5th sec- tion of the act of April 13, 1850, being a supplement to the act re- lating to orphan's courts, this court could have appointed trustees from among the citizens eligible to office in the corporation, as trustees to take charge of the corporation, un- til new officers were chosen accord- ing to the provisions of the charter. But in this proceeding we could pronounce no judgment, except for- feiture of franchises and of the charter, against the corporation, which would dissolve it and return it to its original elements. "We can not think of such a result ; there is not the slightest cause for it. The proceeding has worn a grotesque appearance, in my judgment, from the beginning. The rule is there- fore discharged." ' See Appendix A. ' Rex V. Wardroper, Buit. 1964. 'Id. * See King v. Ogden, 10 Barn. & Cress. 230. CHAP. XVI.] AGAINST MUNICIPAL COEPOEATIONS. 499 is recognized between such cases and cases of corporate bodies exercising powers of government and municipal authority. And an information will lie in behalf of a private relator to test the right of an officer in a municipal corporation, upon grounds affecting his title, and it affords no valid objection to the exercise of the jurisdiction in such a case, that the title of every other officer of the municipal "body is tainted with the same defect. ^ But even in the case of a municipal corpora- tion it is wholly discretionary with the court to grant or with^ hold permission to file the information. And the fact that a dissolution of the body corporate may reasonably be appre- hended from making the rule for the information absolute, while not a conclusive objection to interfering, is a consider- ation proper to be taken into account in passing upon the application. 2 So the fact that the affidavits in support of the rule impute no corrupt or fraudulent motives for the acts com- plained of, and do not allege that such acts have resulted in any inconvenience, or have produced any hardship or injustice, may properly be taken into consideration.' And it is always in the discretion of the court of kings bench to grant or refuse leave to file the information in behalf of individual corpo- rators, such cases being distinguished from those where the attorney general prosecutes in behalf of the government and where the information may be exhibited without leave of the court.* ^ § 683. A similar discretion is exercised in this country in granting or withholding leave to file the information at the instance of a private relator. And the fact that the successful prosecution of the information, which is sought to try respondent's right to the office of alderman in a municipal council, would result in the suspension of all municipal gov- ernment in the city for a long period of time, is a proper con- sideration to be addressed to the court. If, in such case, the only defect in respondent's title is a mistake in the day of 1 King v. White, 5 Ad. & E. 613, See also State «.Tolan, 4 Vroom, 195. the case distinguished from King ° Id. e. Ogden, ««j3ra. 'King ®. Trevenen, 3 Barn. & ' King t. Parry, 6 Ad. & E. 810. Aid. 479. 500 QUO WARRANTO. [pART II. election, there being no allegation of fraud or corruption against any person connected with the election, the court may properly -withhold leave to file the' information. * § 684. The creation of corporate franchises being an attri- bute of soTereignty, only to be exercised by the supreme power in the state, all who presume to exercise such franchises with- out due authority are liable to proceedings by information in the nature of a quo warranto. And it is held in Vermont, where it is sought to exercise the privileges and powers of a municipal corporation, without authority of law, that an information is the proper remedy, and the court will give judgment that the pretended corporation be dissolved. ^ § 685. The propriety of the quo warranto information, as a means of determining the right to hold offices in municipal corporations, is too well established to admit of controversy. ^ And while it is true that the common council of a city is, to a certain extent, a legislative body, yet it bears no such relation to a purely legislative body, as the legislature of a state, as to deprive the courts of their jurisdiction by quo warranto over the municipal body. An information will therefore lie to determine the title of members of a city council, notwithstand- ing the council is made, by an act of legislature, the judge of the qualifications of its own members, and notwithstanding ■ State D. Tolan, 4 Vroom, 195. tion, whether it be a private or pub- ' State ?). Bradford, 32 Vt. 50. The lie one. When the corporationi is court, Redfibld, C. J., say: "We of a public character, like a town are satisfied from the evidence in or village, which constitute integral the case, that there could not have portions of the sovereignty itself, been a legal majority of the voters there is more propriety in visiting present at the meeting in favor of the usurpation of these important accepting the charter, and that it functions of sovereignty with this did not, therefore, become a binding formal denial of their right to exer- law. The organization, therefore, cise such usurpation, than in the under it, is a mere usurpation of case of a mere private corporation, corporate franchises, without any but the law seems to be the same legal warrant. In such cases the in either case." law is well settled, in England, that ' Commonwealth «. Meeser, 44 Pa. upon the information of the attorney St. 341; Commonwealth v. Allen, general, the court of kings bench 70 Pa. St. 465. will abate and dissolve the corpora- OHAP. XVI.] AGAINST MUNICIPAL CORPORATIONS. 501 the existence of a remedy by iinpeacliment for misdemeanors in office. 1 § 686. We have already seen that the acquiescence of mem- bers of a private corporation may be such as to estop them from relief by information against officers of the corporation, ' Commonwealth v. Allen, 70 Pa. St. 465. This was an information in the nature of a quo warranto, calling upon respondents to show by what right they held the office of common councilmen of Phila- delphia, the ground of forfeiture relied upon being that they were also sureties on the official bond of the city treasurer. An act of legis- lature provided that it should be unlawful for any councilman to be surety upon such official bond, and that a violation of the act should forfeit his office. The respondents demurred upon the ground that by an amendment to the city charter it was provided that " the select and common council, respectively, shall in like manner as each branch of the legislature of this common- wealth judge and determine upon the qualifications of their mem- bers," and that therefore the proper tribunal to determine the question was the common council itself. It was also urged, as a ground of de- murrer, that the statutory remedy by impeachment should be fol- lowed. The opinion of the court was delivered by Agnbw, J., as fol- lows: "We can not doubt the juris- diction of the court in this case. There is no true analogy between the state legislature and the coun- cils of a city. Their essential rela- tions are wholly different. The councils are in no proper sense a legislature. They do not make laws, but ordinances; nor are the members legislators, with the con- stitutional privileges and immuni- ties of legislators. The councils owe their existence, their rule of action, their privileges and their immunities solely to the law, which stands behind and above them ; and their ordinances have their binding force, not as laws, but as municipal regulations, only by virtue of the law which infuses them with vigor. Hence all those decisions which evince the unwillingness of courts to interfere with the members of the legislature have no place in the argument. The legislature and the courts, deriving their existence from the constitution itself, are co-ordi- nate, independent branches of the government, standing upon a foot- ing of equality in the exercise of those powers which the constitution imparts to each in its own sphere. It would ill become a com't of jus- tice to attempt to displace a member of assembly. Its desertion of its appointed orbit would be followed by such a display of incompetency to effect its purpose as would be its most signal rebuke. This distinc- tion between a legislative body, rep- resenting the people, the primary power in the state, was directly in the mind of the chancellor who de- cided Barker v. The People,20 Johns. 457, a case strongly relied on by the defense. He said: 'The disqualifi- cation pronounced by the court would then fail to produce exclu- sion from the legislature; but it 502 QUO WAERAJSTTO. [PAKT 11. and the principle applies with equal force in the case of muni- cipal corporations. And where a rule was asked requiring the respondent to show cause why an information should not be filed against him for exercising the oiBce of mayor of a muni- cipality, on the ground of his having been proposed and would, nevertlieless, be effectual to exclude from all other public sta^ tions. Its effect in respect to all other public employment must be decided by the tribunals of justice.' If the councils of a city, no matter how large, may defy the law under which they exist and exercise all tlieir powers, so may the councils of the most humble borough, and thus the law of the land be violated with impunity, unless the courts of justice have power to curb their deviations and correct their mis- deeds. The right of this court to Issue the writ of quo warranto to determine questions of usurpation and forfeiture of office in a public corporation can not be questioned. Its powers, fully established by the general assembly, 22d May, 1732, 1 Smith's Laws, 131, and repeated in the act of 16th June, 1836, Purd. 928, pi. 19, have been recognized in numerous decisions, to some of which I may refer : Commonwealth c Arrison, 15 8. & R. 130; Com- monwealth V. McCloskey, 2 Eawle, 369-81 ; Commonwealth v. Jones, 3 Jones, 365 ; Cleaver «. Com. 10 Casey, 283 ; Lamb v. Lynd, 8 Wright, 336; Updegraff «. Crans, 11 Wright, 103 ; Kerr v. Trego, id. 292. * * * What obstacle, then, does the city charter oppose to the authority of the court ? It is said that councils have power in like manner as each branch of the legislature to judge and deterinine the qualification of their members. Granting that, it does not follow that the authority of the court is taken away to inquire into a forfeiture, which does not take place until the member has been admitted to his seat. It is only then it becomes necessary to enforce the law by giving judgment of ouster. If councils had not ad- mitted the member to his seat there would have been no violation of law, and consequently no forfeiture. Conceding that the power to in- quire into the qualification of a member implies a power to declare his disqualification, the omission of the council to make the inquiry is not a bar to the legal proceedings to enforce a salutary law. The offense, beginning only when the member unites in himself the double relation of councilman and surety, is continuing in its nature so long as he continues to be surety and councilman at the same time. If, then, the council suffer the oath to be administered sub silentio, or fail afterwards to inquire into and declare the disqualification, how can it be argued that the forfeiture which took effect eo instanti when the member was sworn in, and con- tinues while the prohibited rela- tion continues, can not be judicially ascertained and declared? This would set the council above the court, for it is the court which com- mand the inquiry. The error is in confounding disqualification with forfeiture, so far as to suppose they are equivalent expressions. The CHAP XVI.] AGAINST MUNICIPAL COKPOEATIONS. 503 elected on the same day, contrary to a by-law requiring the election to be on a day subsequent to that on which he was proposed, the rule was discharged with costs, upon its being shown that the relator was party to an agreement made by the corporation not to enforce the by-law. ^ But the fact that three out of four of the relators have acquiesced in the elec- tion of the officer, which they now seek by information to impeach, affords no bar to granting the information at the relation of the fourth, who did not concur in the election. ^ § 687. While, as we have thus seen, the rule is well estab- lished that acquiescence in the corporate election or other proceedings which are afterward made the foundation for a quo warranto information, is a good ground of objection to granting the relief, yet the acquiescence relied upon as an estoppel must be such as to have conduced in bringing about the condition of things complained of, and where the relators have not lain by mala fide, and have not contributed by their own conduct to the grievance complained of, they are not pre- vented from making the application.^ So, where the relators, at the time of holding an election for a municipal office, objected thereto, the fact of their having subsequently made no opposition to the election of the same officer to another fact that a man is surety for a cor- of the law, and oust the sitting poration ofBcer is a cause of dis- member from a seat which he qualification to take the seat, but no longer rightfully holds? The when the seat is taken it becomes a whole argument against the power cause of forfeiture. As a disquali- of the court is in effect to declare fication the councils may refuse the the councils superior to the law. seat, and even after he has taken it But the law which declares the they may remove him by reason of forfeiture is the true superior, and continuing disqualification. But no omission or device of councils when actual forfeiture takes place can retain a member in his seat by the union of the relations of who has forfeited it by his illegal surety and councilman, if the coun- act. The demand of the law can not oil fail to inquire into what they be set aside by the non-action or may consider the continuing dis- wrong action of a body wholly qualification, what clause of the subordinate to it." charter, or what principle of law, ' King «. Mortlock, 3 T. R. 301. robs the court of its necessary juris- '^ King «. Symmons, 4 T. R. 324. diction to inquire into the violation ° King ®. Morris, 3 Bast, 313. 504 QUO -WAEEANTO. [PAET II. office, of which the former was a necessary qualification, does not constitute such an acquiescence in the original defect of title, as to preclude them from seeking relief by information within the time allowed by law.^ But where the relator was actually present and concurred in the election, though ignorant of any ground of objection thereto, he is estopped by his acquiescence from afterward filing an information, the govern- ing principle being that he acquiesced in the objectionable election at the time it was held.^ § 688. To warrant the granting of a quo warranto informa- tion to test the right to hold and exercise a municipal office, the corporation must be actually in existence, and the mere assertion of a right to the office, after an actual dissolution of the corporation, is not of itself sufficient to warrant the court in interfering, there being no civil rights in controversy, and the claim to the office being a mere nullity. ^ Nor will an information lie against a municipal officer to show by what title he exercises his office, where it is claimed that he has accepted an office incompatible therewith, unless it is clearly shown that he was duly and regularly appointed to fill the second office.* But the fact that one has been sworn into a municipal office, de facto, although the swearing may have been defective in law, constitutes a sufficient user to warrant proceedings by information to test his right to the office, the case being distinguished from that of a mere naked claim to the office.^ § 689. While the principles thus far established indicate the tendency to a somewhat liberal use of quo warranto infor- mations, as a means of correcting the usurpation of corporate privileges, the courts will not entertain such informations for the purpose of interfering with or declaring void the legis- lative action of a municipal body, such as the common council of a city. The power of municipal legislation being properly vested in such a body, the courts will not permit the use of this remedy to inquire into or challenge the manner in which ' King V. Clarke, 1 East, 38. = King «. Saunders, 3 East, 119. " King V. Trevenen, 3 Barn. & Aid. * Rex ■e. Day, 9 Barn. & Cress. 702. 479. ' King v. Tate, 4 East, 837. CHAP. XVI.] AGAINST MUNICIPAL CORPORATIONS. 505 this power has been exercised, nor is it within the legitimate scope of the proceeding by information to declare null and void legislative acts of such a municipal body.i ISTor will the charter of a municipal corporation be forfeited by ^n-oceedings upon an information, because of the passage by the corporate authorities of an alleged illegal ordinance in which they have transcended their powers, the oflfense charged being at the most- but an error of judgment, rather than a willful abuse of power. ^ § 690. The object of the information being to correct the usurpation of an office or franchise by persons not properly entitled thereto, it does not lie to compel the performance of a duty, although such duty be connected with the exercise of the franchise. And where a municipal corporation neglects to perform a diity incumbent upon it by law, the grievance can not be remedied by information. Indeed, tRe rule seems to result necessarily from the nature of the judgment which is given in proceedings by information against a corporation, which is, either that the franchise usurped be seized to the state, or judgment of ouster and fine, and such judgment in either form would be clearly inadequate as a remedy for the neglect to perform a corporate duty.^ And where a muni- cipal corporation has, from time to time, made subscriptions ' State V. City of Lyons, 31 Iowa, in the nature thereof, has been en- 432. This was an information in tertained for the purpose of declar- the nature of a quo warranto, al- ing void or annulling a legislative leging that the common council of act, whether passed hy a state or an the city had passed certain ordi- inferior municipal legislature. It nances vacating a portion of one of is not necessary for us to distinctly the city streets, without lawful au- determine in this case whether or thority, and praying that judgment not, under our statute, such a pro- be rendered declaring the ordinance ceeding can under any circum- null and preventing the city from stances be maintained, since we attempting to vacate the street, ground our decision herein upon Mr. Justice Cole, delivering the the special facts set forth in the in- opinion of the court, says : " Our formation." attention has not been directed to ' State i>. Town Council of Ga- nor have we been able to find any haba, 30 Ala. 66. case in the books where a proceed- ' Attorney General v. Salem, 103 ing in quo warranto, or information Mass. 138. 506 QUO WAERAWTO. [PAET II. to the stock of railway companies, claiming tlie power to make such subscriptions and to levy taxes for their payment, and they are afterwards authorized and confirmed by an act of legislature, an information will not be allowed for the pur- pose of questioning their validity, i § 691. "Where it is apparent to the court that the merits of an election to a municipal office are sufficiently presented, even though sworn only upon information and belief, and the respondent has made no denial thereof in answer to the rule to show cause, the information will be allowed, there being enough shown to put the matter in a course of inquiry.^ § 692. At the common law, no definite period of limita- tion was fixed, within which the information should be filed. The court of kings bench, however, finally established the rule, that an information to determine the right to exercise a franchise in f municipal corporation, must be brought within twenty years, and that after twenty years uninterrupted pos- session, no rule would be granted against the person in jjos- session to show by what right he held and exercised the fran- chise.* As to cases within this period, however, the kings bench held it to be discretionary with the court whether the application should be granted or refused, the limit of twenty years being fixed as the boundary beyond which they would not, under any circumstances, interfere.* And it was held that no possession of the franchise for less than twenty years constituted, of itself, an absolute barrier to granting the appli- cation. ^ Subsequently, however, the court reduced the period of limitation to six years, beyond which tliey would not, under any circumstances, suffer a person in possession and enjoy- ment of the franchise to be disturbed.' And the same period of six years was afterwards fixed by statute as the limitation to informations for the exercise of any office or franchise in " State «. City of Charleston, 10 Daws, lb. 3120; King«. Stacey, 1 T. Rich. 491. R. 1 ; Kiag «. Newling, 3 T. R. 310. " King V. Harwood, 3 East, 177. ■■ Winchelsea Causes, supra; King ' Winchelsea Causes, Burr. 1963; v. Newling, supra. Rex V. Stephens, lb. 433. And see " King v. Bond, 3 T. R. 767. Rex V. Wardroper, lb. 1963; Rex v. « Rex ». Dicken, 4 T. R. 383. CHAP. XVI.J AGAINST MUNICIPAL COEPOEATIONS. 507 any city, borougli, or town corporate. ^ And this statute was construed to mean six years before making the rule for the information absolute, and not six years before granting the rule nisi J By a still later statute it was provided, that appli- cations to the court of kings bench for the purpose of testing the title of any mayor, alderman, councillor, or burgess in any borough, should be made before the end of twelve months after the election, or the time when the officer became dis- qualified.^ § 693. Where, upon an information for exercising the functions of a municipal office, the respondent disclaims the office and franchise, and judgment of ouster is rendered against him, he is thereby barred from showing upon a second information for exercising the same office, that he was duly elected before the former information and judgment, and that he was afterward sworn in under a peremptory mandamus, since the mandamus to swear into an office can confer no title.* § 694. A distinction is recognized between the usurpation of an office, and the usurpation of a franchise connected with )r attached to an office, although proceedings by quo warranto information are recognized as the appropriate remedy in both classes of cases. Thus, where the proceedings are brought to test the legality of a vote given by the presiding officer of the common council of a city, claiming to be a part of the com- mon council, and to be entitled to vote as such, the case is regarded as the usurpation of a franchise and the information the proper remedy. ^ § 695. Upon proceedings in the nature of quo warranto to test the right of an incumbent to a town office, it is competent for the court to inquire whether the town was legally created,, and whether the office had any legal existence, since, if the office were not legally created, there could be no usurpation.* And the information will noi bo allowed to determine the ' 33 Geo. III. Ch. 58. ' Reynolds v. Baldwin, 1 La. An. " King s. Stokes, 2 Mau.& Sel. 71. 162. ' 7 "Will. IV. & 1 Vict. Ch. 78, § 23. « People «. Carpenter, 24 K. T. 86. ■> King V. Clarke, 2 Bast, 75. 508 QUO WAKKANTO. [PAliT II. right of a clerk of a board of municipal officers to hold his place, upon the ground of an alleged irregularity in the elec- tion, where the office or position is held at the pleasure of such board, which is itself fully competent to do all that is soughl by the information. ^ § 696. The information will not He against a municipal officer, as the mayor of a city, where the real purpose of the application is to test the legality of the municipal charter, since the courts will not permit a charter to be repealed in a proceeding directed, not against the corporation, but against an individual corporator or officer. ^ ' Bradley ». Sylvester, 25 L. T. R. ' Regina v. Jones, 8 L. T. R. N. S. N. a 459 503 CHAPTEE XVII. OP THE PARTIES IN QUO WARRANTO. § 697. Information only allowed in name of state or public prosecutor. 698. The doctrine in cases affecting corporations. 699. English rule in cases against corporations. 700. Private relators ; effect of statute. 701. Private citizens as relators against municipal officers; must be competent relator in first instance. 703. Interest of relator against municipal corporation in England. 703. Presumption in favor of public prosecutor; can not dismiss to prejudice of relator. 704. Joinder of parties. 705. Territorial judges. 706. The doctrine in Ohio. 707. Leave of court; distinction as between public and private prose- cutor. 708. Private persons not entitled to writ in Arkansas. 709. Acquiescence of parties may render them incompetent rela*,or8. § 697. As regards the proper parties to an information in the nature of a quo warranto, it is to be observed that while the remedy by information to test the right to a public oflSce is now generally regarded as in the nature of a civil remedy, it still retains the form of a criminal proceeding, so far at least as concerns the parties prosecuting and the title of the cause. And in the absence of statutory regulations to the contrary, the common law rule still prevails, requiring the proceedings to be instituted in the name of the state or sovereign power by the attorney general or other prosecuting officer, and a private citizen will not be allowed to file the information in his own name, and of his own volition, since the law does not contemplate the use of this remedy by (509) 510 QUO WAERAWTO. [PAET II. individual citizens to redress the wrongs of the state, i The principle underlying the rule seems to be, that in the case of a public office or franchise, the usurpation is a public wrong, and the remedy should therefore be a public one, carried on in the name of the public prosecutor, and the real relator ought not to be allowed to usurp the process for private ends.^ The same principle is also applied to the case of a motion for a rule to show cause why the information should not be allowed.''' And while it would seem to be of but little practical importance in whose name the proceedings are instituted, yet the old practice is still adhered to unless otherwise provided by statute. The right to institute the proceedings, or to file the information, is regarded as incident to the office of the public prosecutor or attorney general, and the courts will not examine into the political or other motives which may have led to the filing of the information, nor will they inquire who is the real relator, but it will be presumed that the proceedings are properly instituted by the attorney general.* § 698. The abuse of a corporate franchise granted by the legislative authority of the state, being a public rather than a private wrong, comes under the same general principle, and where the invasion or abuse of such franchise affects only the public prerogative, and involves no grievance to individual rights, the same general rule applies. The object of the information in such cases being to seize the corporate franchise into the hands of the state, or to work a forfeiture of the charter and a dissolution of the corporation as a body politic, the proceedings will not be entertained upon the relation of a • Sir Wm. Lowther's case, Ld. Hambui-g Turnpike Co. 1 Zab. 9; Raym. 1409; Wright D.Allen, 3 Tex. In re Bank of Mount Pleasant, 5 158; Murphy •«. Farmers Bank, 20 Ohio, 249; State ®. Moffltt, 5 Ohio, Pa. St. 415 ; Commonwealth v. Bur- 358. rell, 7 Pa. Bt. 34; United States v. " State «. Schnierle, 5 Rich. 299; Lockwood, 1 Finney's Wis. 359; Cleary v. Deliesseline, 1 McCord, Cleary ». Deliesseline, 1 McCord, 35 ; State v. Paterson & Hamburg 35 ; State «. Schnierle, 5 Rich. 299 ; Turnpike Co. 1 Zab. 9. Lindsey «. Attorney General, 33 ' State v. Schnierle, supra. Miss. 508 ; State «. Gleaaon, 12 Fla. " State v. Gleason, 12 Fla. 190. 190. See also State «. Paterson & CHAP. XVII. j OF THE PARTIES. 511 merely private citizen, without interest in the controversy, even though leave of the court be first sought for that pur- pose, i A distinction, however, is recognized between cases involving the very existence of the corporate franchise, and such as merely affect the administration of corporate functions or duties affecting only individual rights, such as the election or admission of corporate officers, and in the latter class of cases the jurisdiction may be exercised upon the relation of private persons. ^ But while the information will lie upon the relation of a private citizen for the usurpation of an office in a private corporation, it is largely within the discretion of the court to grant or refuse the application.^ And one who has no interest in the affairs of a corporation, save such as is common to every citizen, can not sue out a writ of quo war- ranto to enforce a forfeiture of the corporate franchise and charter, but the proceedings must be taken by some author- ized representative of the state.* Nor does the fact that the person seeking the remedy is a creditor of the corporation, and has an action pending at law for the recovery of his debt, affect the application of the rule.^ § 699. The English rule with regard to granting leave to file an information against a corporation for a violation of its franchises, is, that where the application is made in behalf of indi\ddual corporators, it is addressed to the discretion of the court, which may grant or refuse the application, as it may deem best, the case being distinguished from that of an appli- cation by the attorney general in behalf of the government, in which case the information may be exhibited without leave.* § 700. !N'otwithstanding the well settled rule already dis- cussed requiring the information to test the title to a public ' Commonwealth v. Allegheny 438. Bridge Co. 20 Pa. St. 185 ; Murphy ' Commonwealth v. Fanners' ». Farmers Bank, lb. 415 ; Common- Bank, 2 Grant's Cases, 392. wealth «. Philadelphia, German- ' Id. town & Norristown R. R. lb. 518; • King «.Trevenen, 2 Barn. & Aid. State V. Paterson & Hamburg Turn- 479. See King v. Ogden, 10 Barn, pike Co. 1 Zab. 9. & Cress. 230; King «. White, 5 Ad. « Murphy v. Farmers Bank, supra. & B. 613 ; King v. Parry, 6 Ad. & ' Gunton v. Ingle, 4 Cranch, C. C. B. 810. 512 QUO WAREAIJ'TO. [pART II. ofl3ce to be filed in the name of the state, or by its attorney general, or public prosecutor, the real relator may be, and often is, a private citizen, whose rights are affected by the usurpation, and who sets the public prosecutor in motion. Especially is this true where the information is sought for the two-fold purpose of ousting a usurper from an office and determining the right of another claimant thereto. In such cases the interest of the relator in the subject matter becomes a question of considerable importance, in order to determine whether he is a proper party upon whose information or relation the proceedings may be had. Even under a statute extending the remedy to " any person or persons desiring to prosecute the same," the question of the relator's interest will be deemed decisive as to the exercise of the jurisdiction, and the relief will be granted only in behalf of one whose interests are affected by the matter in controversy. And such a statute does not entitle a private relator to the relief in a case of public right involving no individual or private grievance. ^ § 701. Where the object of the proceeding is to test the right of respondent to a seat as member of the common coun- cil of a city, a private citizen may be a competent relator, when it is apparent that he is not a mere volunteer interfering maliciously, but that he represents a large and responsible number of citizens, and is not influenced by merely personal motives. 2 So it is held that any citizen or tax-payer has a sufficient interest in the office of tax collector to render him a proper party to institute the proceeding for determining the right of the collector to exercise the functions of his office.* And where the application for leave to file the information is made by a proper relator, it may be granted, notwithstanding it rests upon and is supported by the affidavits of others whose conduct and whose acquiescence in the irregularity complained of have disqualified them as relators.* And the English rule is imperative, that there must be a competent relator when ' Commonwealtli s. Cluley, 56 Pa. ' Commonwealth o. Commission- 8t. 370. ers, 1 8. & K. 380. " Commonwealth v. Meeser, 44 * King v. Brame, 4 Ad. & E. 664; Pa. St. 341. King v. Parry, 6 Ad. & E. 810. CHAP. XVII.] OF'THB PAETIES. 513 the rule to show cause is first moved for, and no amendment will be allowed in this respect. * § 702. As regards the degree of interest necessary, under the English practice, to render one a competent relator to an information against a municipal corporation, it is to be observed that the courts are exceedingly adverse to entertain- ing the proceedings in behalf of a mere stranger to the cor- poration, and while there may be cases where leave would be granted a stranger to institute the proceedings, it could only be done where he presented a very clear case.^ But where, by the charter of a municipality, it is provided that its gov- ernment and that of all the people therein shall be vested in the mayor aad burgesses, an inhabitant of the municipality has a sufficient interest in the subject matter to render him a competent relator in an information to test the title of one of the burgesses. 3 § 703. "Where the information is filed by the proper officer of the state, as by the solicitor general, duly authorized by law to prosecute informations, the court will presume that the proceedings are had in his official capacity. Nor will this presumption be rebutted by the tact that he has recited in the information an order of one branch of the state legislature requesting him to file such information, the order being rejected as mere surplusage and not affording sufficient ground for sustaining a motion to quash the information.* And where, under the laws of the state, it is, the duty of the attor- ney general to file an information upon the relation of any ' Regina v. Thirlwin, 9 L. T. R. wise. He comes here as a perfect N. S. 731. stranger to the corporation, prowl- " King V. Kemp, note to King v. ing into other men's rights. I do Clarke,! East, 38. And see King not mean to say that a stranger may V. Stacey, 1 T. R. 1. In King v. not in any case prefer this sort of Kemp, Lord KENTOif ohserves, as application ; but he ought to come to the question of the relator's in- to the court with a very fair case in terest : " If he had shown that his his hands." own and other persons' privileges ' Rex v. Hodge, note to King v. had been injured, he would perhaps Trevenen, 3 Barn. & Aid. 344. have had reason for preferring this ' Commonwealth v. Fowler, 10 complaint; but the fact is other- Mass. 290. 33 514 QUO WAKBANTO. [pART II. person claiming to be rightfully entitled to a public office, while the attorney general may dismiss the proceedings as far as the rights of the people are involved, he will not'be allowed to dismiss to the prejudice of the relator, who will still be permitted to prosecute his own claims in the action already instituted. ' § 704. At the common law, it would seem to have been proper to join several different persons respondent in one and the same information, where the rights involved and the evi- dence in support of them were substantially the same.^ The statute of Anne provided that if it should appear to the court that the several rights of different persons to offices or fran- chises, might properly be determined on one information, leave might be given by the court to exhibit one such infor- mation .against the several persons.^ Under this statute, it is held by the court of kings bench, that where several informa- tions are filed against several different persons, whose rights are identical, the court may consolidate the proceedings, and determine the rights of the parties upon a single information against them all.* Where, however, the offense charged against several different respondents, in different informa- tions, is not a joint offense, the court will refuse to consolidate the proceedings, since in such case there must be different informations to enable each respondent to disclaim.^ And it is not competent for two persons, claiming different offices, to unite in one and the same information for the purpose of determining the title to both offices in one proceeding, and such a misjoinder of parties is fatal on demurrer.' Nor is the application of the rule varied by the fact that the duties, of the two offices are somewhat similar, or that the incumbents participate in the same duties.'' § 705. In the case of judges of the territorial courts in the various territories of the United States, who are appointed by '- Attorney General «. Barstow, 4 * Rex v. Foster, Burr. 573. Wis. 567. ' King v. Warlow, 2 Mau. & Sel. ' See opinion of Lord Mansfield, 75. in Symmers v. Regem, Cowp. 500. ' People v. De Mill, 15 Mich. 164. ' 9 Anne Ch. 30. See Appendix A. ' Id. CHAP. XVII.] OF THE PARTIES. 515 the president and confirmed by the senate, it is held that the territory is not a proper party to prosecute an information in the nature of a quo warranto to determine the right to hold such offices, since this would recognize the right of amotion in the territory, without the consent of tlie general govern- ment from which the appointment was derived. The right, therefore, to institute proceedings by a quo warranto informa- tion against such judges rests only with the United States, and a relation or information in the name of a territory is demurrable, i § 706. In Ohio it is held, where the proceedings are brought against a corporation, that the application for the rule to show cause should be made by the prosecuting officer of the proper county, for and in behalf of the state, and if, in a proper case, this officer refuses to proceed with the application for the rule, the court may order him peremptorily to proceed, or may, in its discretion, direct some other person to continue the proceedings. 2 The same rule applies where the application is made against an individual, and if the proceedings are brought by a private citizen in the first instance, they will be dismissed for irregularity.' § 707. As regards the necessity of applying for leave of court before filing the information, a distinction is taken between cases where the proceedings are instituted by the attorney general, ex officio, and without any relator, and cases where they are brought iipon the relation of a private citizen. In the former class of cases, the information is filed as of course, without leave of court, but in the latter class the information can only be filed by leave of court first had and obtained for that purpose, and the application is not granted as of course, but rests in the sound discretion of the court* § 708. In Arkansas, where the original writ of quo war- ■ Territory v. Lockwood, 3 Wal. under the New York code of pro- 230. cedure, People ». Ryder, 12 N. T. " In re Bank of Mount Pleasant, 438. 5 Ohio, 24S. ' State «. Stewart, 32 Mo. 379 ; ' State i>. Moffitt, 5 Ohio, 358. And State «. Lawrence, 38 Mo. 535. And see as to parties to the proceeding see State v. Buskirk, 43 Mo. 111. 516 QUO WAEEANTO. [PART II. ranto is still retained, the remedy is treated as one in behalf of the state, and the writ only issues at the instance of the state, by its attorney general. The proceeding is regarded as an issue between the state and the incumbent of the ofSce in controversy, and not as between two persons claiming a right to the oiiice. The courts of that state, therefore, refuse to grant the writ upon the relation of a private person, or as a remedy in behalf of individual claimants of a disputed office or franchise.^ § 709. It is important to observe, that persons who are otherwise competent relators to institute proceedings by infor- mation in the nature of a quo warranto, may by their own conduct be estopped from initiating the proceedings. Where, for example, members of a corporation, either private or municipal, have attended at a corporate election, and partici- pated in the proceedings, and have acquiesced in certain irreg- ularities, which they afterwards seek to make the foundation for proceedings by information against the officers elected, their acquiescence will be deemed a complete bar to allowing an information to be filed upon their relation. ^ It is held, however, that the acquiescence of the parties, which is relied upon as an estoppel, miist be of such a nature as to actually contribute toward bringing about the condition of things com- plained of, and where they have not acted in bad faith, and their acquiescence or laches has not contributed to the griev- ance complained of, they may still be competent relators.* And where there are several relators on whose information the proceedings have been instituted, some of whom have acquiesced in the irregularity of a corporate election which constitutes the gravamen of the information, their acquies- cence does not render one who did not participate therein incompetent as a relator, and the proceedings may be sus- tained, notwithstanding the incompetency of the others.'* ' Bamsey v. Carliart, 27 Ark. 13. v. Mortlook, 3 T. R. 801. See also State «. McDiarmid, lb. ' King v. MoiTis, 3 East, 313. 176. * King v. Symmons, 4 T. R. 334. ^ State V. Lelire, 7 Rich. 284 ; King CHAPTEE XYIII. OF THE PLEADINGS IN QUO WARRANTO. § 710. Ordinary rules of pleading in civil actions applicable. 711. Criminal pleadings followed in Illinois. 713. Prosecutor need not show title; burden of showing title rests on -respondent. 713. SuflSciency of allegations. 714. Plea that respondent had been declared elected. 715. Joinder of different pleas and defenses. 716. Respondent should disclaim or justify; what must be shown in justification. 717. Substitution of pleas at common law. 718. Plea of non uiurpcmit, or not guilty. 719. Matter need not be anticipated; when plea treated as confessing usurpation. 720. "When plea of charter suflScient. 721. Common law rule on information for usurping municipal office. 722. Sufficiency of plea as to election proceedings. 723. Allegations as to time of usurpation. 724. Purpose of the information; rules applicable to proceedings against corporations. 725. When plea of not guilty and disclaimer allowed. 726. Rules applicable to board of directors of corporation. 727. Breach of condition ; proviso annexed as defeasance to act of incor- poration. 728. Plea instead of answer; demurrer carried back to first defective pleading. 729. Pacts well pleaded admitted by demurrer; facts should be pleaded and not conclusions of law. 730. Pleadings in Ohio on information against corporation ; not changed by code of procedure. § 710. The tendency of the courts in modern times, being to regard an information in the nature of a quo warranto in the light of a civi) remedy, instituted for the determination of civil rights, although still retaining its criminal form and some (-5171 518 QUO WAEEANTO. [PAET II. of the incidents of criminal proceedings, the better doctrine now is that the pleadings should conform as far as possible to the general principles and rules of pleading which govern in ordinary civil actions. i And while, as we shall presently see, certain iinjDortant distinctions are drawn between this and ordinary civil actions as regards the title necessary to be pleaded by the prosecutor, yet in the main the practitioner will be guided by the accustomed rules of pleading applicable to civil actions. § 711. The courts of this country, however, have not given a uniform recognition to the doctrine of the preceding section, but have, in some cases, endeavored to establish an analogy between the pleadings applicable to quo warranto informa- tions and those in criminal proceedings. Thus, in Illinois, where it is held that the modern information is as much a means of criminal prosecution as was the proceeding at com- mon law, it is held that the rules of pleading applicable to criminal indictments should govern in quo warranto informa- tions, the principal difference being that an indictment is pre- sented by a grand jury, on their oaths, while in the case of informations the court is informed of the facts by the public prosecutor. And the statutes of the state requiring indict- ments and criminal prosecutions to be carried on in the name and by the authority of the state and to conclude " against the peace and dignity " etc., these words should be included in the information, and their omission is fatal. ^ § 712. Allusion has been made to an important distinction ' People v. Clark, 4 Cow. 95 ; State and the information in the nature v. Commercial Bank, 10 Ohio, 535 ; thereof have been aholished, the State v. Kupferle, 44 Mo. 154. And relief before attainable in these see Attorney General «. Michigan forms being now had in an ordi- State Bank, 2 Doug. 359. See also nary civil action. See as to plead- note to People v. Eiohardson, 4 Cow. ings in such cases. People v. Eyder, 97. But see, conira, Donnelly ». The 12 N. Y. 433. People, 11 111. 552; People «. Mis- '■ Donnelly «. The People, 11 111. sissippi & Atlantic R. Co. 13 111. 66 ; 552 ; People «. Mississippi & Atlan Wight ,;. The People, 15 111. 417. tic R*. Co. 13 111.66; Wight «. The In New York by the code of pro- People, 15 111. 417. cedure the writ of quo warranto CHAP. XVIII.J 0¥ THF- PLEADINGS. 519 between pleadings upon quo warranto informations, and in civil actions, as to the title necessary to be asserted by- the prosecutor. That distinction is, that while in ordinary civil actions the burden rests upon the plaintiff to allege and prove his title to the thing in controversy, the rule is reversed in cases of quo warranto informations, and the respondent is required to disclose his title to the office or franchise in con- troversy, and if he fails in any particular to show a complete title, judgment must go against him. In other words, in civil actions plaintiff recovers upon his own title; but in pro- ceedings in quo warranto respondent must show that he has a good title as against the government. ^ The sole issue in proceedings of this nature, instituted to test the right of an incumbent to an office or franchise, being as to the right of ' Rex i>. Leigh, Burr. 2143 ; Peo- ple V. Ridgley, 21 111. 66. And see People «. Miles, 2 Mich. 348; State 0. Gleason, 12 Fla. 265; People u. Mayworm, 5 Mich. 146; Clark v. The People, 15 111. 217; State v. Beecher, 15 Ohio, 723; People ®. Bartlett, 6 Wend. 422. But in Mis- souri it is held that where the ma- terial averments of the information are denied by the return or answer, the burden of proof is upon the re- lator to establish his case. State v. Kupferle, 44 Mo. 154. In People v. Ridgley, 21 111. 67, Mr. Justice Bbbksb observes: "The usual ob- ject of an information of this na^ ture is, to call in question the de- fendant's title to the oflBce or fran- chise claimed and exercised by him, because of some alleged defect therein, as for instance, that at the time of the election he was disqual- ified to be elected ; or that the elec- tion itself was void or irregular ; or that the defendant was not duly elected or not duly appointed; or that he has not been duly sworn in, or otherwise unlawfully admitted; or that he has since become dis- qualified, and yet presumes to act. A defective title is understood to be, and is, in contemplation of law, the same as no title whatever, and a party exercising an office or fran- chise of a public nature, is consid- ered as a mere usurper unless he has a good and complete title in every respect. This court has de- cided that the people are not re- quired to show anything. The entire onus is on the defendant, and he must show by his plea, and prove, that he has a valid title to the office. He must set out by what warrant he exercises the func- tions of the office, and must show good authority for so doing, or the people will be entitled to judg- ment of ouster. Clark v. The Peo- ple, ex relatione Crane, 15 111. R. 217. The information, however, must allege that the party against whom it is filed, holds and executes some office or franchise, describing it, so that it may be seen the case is within the statute." 520 QUO WARRANTO. [PAET II. the respondent, he can not controvert the right or title of the person alleged in the information to be entitled to the office, nor can the court adjudicate upon such right, unless it is necessarily involved in the determination of the issue between the people and the respondent. ^ It is therefore unnecessary that the relator should set forth his title to the office, and an information is not demurrable because of an omission to spe- cifically set forth such title, even under a statute authorizing the attorney general in such proceedings to set out in the information the name of the person rightfully entitled to the office, with an averment of his right thereto.^ And the state is not bound to show a demand for the office, nor to establish any fact save such as may be tendered by replication and put in issue by rejoinder or other plea.* § 713. As regards the question of intrusion into or usurpa- tion of the office, to test which an information is filed, it is regarded as sufficient to allege, generally, that the respondent is in possession of the office without lawful authority.* And in ease the pleadings are defective in this respect, the defect is one which should be taken advantage of by special demur- rer. ^ But where the information is filed by the state upon the relation of the person claiming to be injured by the usurpation, the relator joining with the state, if the pleadings show a good cause of action in favor of the state, a demurrer will not be sustained because it does not appear that the relator is entitled to the office. « Mere general allegations, however, that the respondent is not qualified for the office which he holds are insufficient, and the particular facts relied upon should be set forth.'' § 714. Where the information alleges that the respondent has intruded into and usurped the office of governor of the state, and that he is exercising its duties without right, a plea alleging that the respondent had been duly declared governor ' People V. Miles, 2 Mich. 348. People ii. Abbott, 16 Cal. 358. " Id. But see State ». Boal, 46 » People v. Woodbury, supra. Mo. 538. 6 State v. Palmer, 24 Wis. 63. ' State V. McDiarmld, 27 Ark. 176. ' Ex parte Bellows, 1 Mo. 115 (2nd " People J). Woodbury, 14 Oal. 43 ; edition, 80). CHAP. XVIII.] OF THE PLEADINGS. 521 by the board of state canvassers, although it may be good as a plea in bar, does not constitute a plea to the jurisdiction of the court, and if pleaded as such a demurrer will be sus- tained, i § 715. Under the English practice, it is competent for the crown to plead double in proceedings upon quo warranto informations, and it may reply several distinct matters to a return, by several distinct replications.^ It may also demur to the return and traverse its allegations at the same time.* And in Ohio, the remedy in the nature of quo warranto being regarded as a civil remedy, the statutes of the state allowing the defendant in any action in a court of record to plead, by leave of court, as many matters of defense as he shall think necessary, are held applicable to proceedings in quo warranto, and the respondent may plead several matters of defense or justiiication. Where, therefore, upon an information to try the title of directors of a corporation, respondents plead two different pleas, setting up different terms of office: first, that they were elected at a particular time and are entitled to hold over until their successors are elected, and that no successors have yet been elected, and second, that tliey were elected at an annual election, and that, having duly qualified, they hold by virtue of that election, there is no such repugnance in the title alleged as to prevent the respondents from availing themselves of both defenses to the same information.* § 716. Where the proceedings are instituted for the pur- pose of testing the title to an office, the proper course for the respondent is either to disclaim or to justify. If he disclaims all right to the office, the people are at once entitled to judg- ment as of course. If, upon the other hand, the respondent seeks to justify, he must set out his title specially and dis- tinctly, and it will not suffice that he alleges generally that he was duly elected or appointed to the office, but he must state ' Attorney General v. Barstow, 4 N. S. 380. Wis. 729. And see this case for * Id. forms of pleading for an intrusion * State v. McDaniel, 23 Ohio St. into an office. 354 = Kegina ». Diplock, 19 L. T. R. 522 QUO WARRANTO. [part II. specifically how he was appointed, and if appointed to fill a vacancy caused by removal of the former incumbent, the particulars of the dismissal as well as of the appointment must appear. The people are not bound to show anything, and the respondent must show on the face of his plea that he has a valid and sufiicient title, and if he fails to exhibit suffi- cient authority for exercising the functions of the office, the people are entitled to judgment of ouster. ^ Unless, therefore, the respondent disclaims all right to the office and denies that he has assumed to exercise its functions, he should allege such • Clark V. The People, 15 111. 317. This was an information to test the right to hold the office of a county- treasurer. The respondent pleaded, among other things, first, that a vacancy in the office had been caused by removal of the relator, to which he had been duly appointed by the board of supervisors; sec- ond, that the office was vacant and he was duly appointed, etc. The court. Treat, C. J., say: " The first plea is clearly defective. It fails to show that the relator was legally dismissed from the office of treas- urer. It alleges that he was removed for various reasons stated in an order of the board of supervisors, but the order itself is not set forth. The reasons ought to appear at large in the plea,, so that the court might determine whether the re- moval was for one of the causes specified in the statute. A dismis- sal for any other cause would not create a vacancy in the office, nor justify tlie board of supervisors in appointing the defendant. He could have no right to the office, unless the relator was properly removed therefrom. In the proceeding by information in the nature of a quo warranto, the defendant must either disclaim or justify. If he dis- claims, the people are at once en- titled to judgment. If he justifies, he must set out his title specially. It is not enough to allege generally that he was duly elected or appoint ed to the office ; but he must state particularly how he was elected or appointed. He must show on the face of the plea that he has a valid title to the office. The people are not bound to show anything. The information calls upon the defend- ant to show by what warrant he ex- ercises the functions of the office, and he must exhibit good authority for so doing, or the people will be entitled to judgment of ouster. Cole on Criminal Informations, 310 to 313; Willcock on Municipal Cor- porations, 486 to 488; Angell & Ames on Corporations, § 756. The second plea is also too general. It does not state how the office became vacant, nor does it show with suffi- cient certainty how the defendant was appointed. The third plea is likewise defective. The defendant does not attempt to set out his title. It is no answer to the information, that the relator is not entitled to the office. The defendant must show that he is rightfully in office, or the people are entitled to judg- ment against him." CHAP. XVIII.] OF THE PLEADINGS. 523 facts as, if true, invest him fully with the legal title; other- wise he is considered as a mere usurper, i § 717. At common law, if the respondent claimed the office under two distinct titles, one by prescription and the other by charter, but by his plea rested his defense upon his prescrip- tive right, which was tried and found against him, he could not then resort to his other defense of a charter right. ^ But if he was doubtful whether his title could best be supported under charter or by prescription, he might at any time before trial withdraw the one defense and plead the other. ^ So he might disclaim in part and justify in part.* And at any time before trial the court might grant leave to withdraw a plea and plead de novo on terms. Or, before joinder in demurrer, the respondent might amend by paying costs. ^ § 718. From the nature of the quo warranto information for the usurpation of an office or franchise, which calls upon the respondent to show by what warrant or authority he exer- cises the functions of the office, it follows of necessity that non usurpavit, or a simple plea of not guilty, does not con- stitute a sufficient plea, since it discloses no title to the office, which is the very gist of the controversy.^ But, while this principle is conceded, it is held to be competent for the respondent to traverse generally the material allegations ten- dered by the relator.'' And where the proceedings are brought to test the right of exercising a corporate franchise, a plea by the corporation alleging, in substance, a right to the exercise of the franchise, and containing negative averments which traverse the allegations contained in the information, is neither a disclaimer nor a plea of Tion uswrpavit, and is a valid plea." § 719. The general principle of pleading, that it is not necessary to anticipate matter which should more properly come from the other side, applies to the pleadings upon infor- ' State D. Harris, 3 Ark. 570. 308. See Commonwealth ». M'Wil- 2 Rex V. Leigh, Burr. 3143. liams, 11 Pa. St. 61. ' Rex V. Grimes, Burr. 2147. ' Commonwealth v. M'Williams, ^ Com. Dig. Quo Warranto, C. 4. awpra. <> Id. ' Commonwealth s. Cross Cut R. « Queen «. Blagden, 10 Mod. Rep Co. 53 Pa. St. 63. 524 QUO WAKEAKTO. [PAKT II. matioiis in the nature of a quo wai-ranto. Where, therefore, the plea or answer anticipates matter which should more properly be alleged by the prosecutor, so much of it as is faulty in this respect will be stricken out as surplusage. i And where the plea tendered by the respondent is utterly bad, and shows no title to the franchise which he is alleged to have usurped, it may be treated as confessing the usurpation, and judgment of ouster may be given thereon. ^ § 720. Upon an information to procure the forfeiture of the charter and franchises of a corporation, alleging an unlaw- ful use and usurpation, it is sufficient to plead the charter, without alleging the continued existence of the body corporate down to the time of instituting the proceedings, and without pleading certain facts which are alleged as an estoppel of the right of the state to insist upon a forfeiture of the franchise, since the plea of the charter constitutes a sufficient prima facie defense to the information. ^ And the corporate charter being shown, its continued existence down to the time of filing the information will be presumed.* § 721. At common law, upon proceedings by information for the usurpation of a municipal oliice, it was not deemed essential to allege specially whether the o^Hce was by charter or prescription. If it was shown to ue nw office concerning the public, this was held sufficient as against a usurper, and where this was admitted by demurrei', judgment would be for the king.^ § 722. Where the information is filed to test the right of an incumbent of an elective office to exercise its functions, it is sufficient if the plea shows the authority for holding the election, the holding of the election, and that respondent received the largest number of votes, without averring that he received the largest number of votes as appeared by the return of the canvassers, such an averment being regarded as immaterial. 8 Nor is it necessary to allege a strict fulfillment ' Attorney General «. Michigan State Bank, 2 Doug. 359. State Bank, 3 Doug. 359. < Id. » Rex ». Philips, Stra. 394. <■ King «. Boyles, Ld. Raym. 1559. "Attorney General o. Michigan " People ». Van Cleve, 1 Mich. 862. CTIAV. XVIII.] OP THE PLEADINGS. 525 on the part of the board of canvassers of election returns of all their duties, since the court may go behind their proceedings, their certificate of election being o^^ prvma facie evidence of title to the office.' § 723. As regards the time when the usurpation occurred, it is held to be unnecessary to specify in the information any particular day as that on which the respondent was guilty of a usurpation of the office in question. And where the allegation as to time is that for the space of two days last past respondent has usurped the office, it will be construed to refer to the two days next preceding the filing of the information, and the period of the alleged usurpation is thus fixed with sufficient certainty.^ Nor is it essential that the time when the infor- mation is presented to the court should appear in the caption thereof^ § 724. The fundamental purpose of the information is to inform the court as to the questions of fact upon which the proceedings are based, in order that it may properly apply the law to those facts. And when the information is filed against an incorporated company for the purpose of obtaining a for- feiture of its franchise, it should allege under what law the corporation exists, and if deficient in this respect, the infor- mation is demurrable.* So, where the proceedings are insti- tuted against a corporate body to compel it to show by what warrant it exercises its corporate franchise, it is proper for the respondent in its return to recite the several legislative enact- ments upon which it relies as constituting it a legal corpora- tion, and such a return will be held good on demurrer.^ And upon an information against an incorporated company, by its corporate name, to procure a forfeiture of its franchise, charg- ing the usurpation generally, if the respondent pleads its act of incorporation, under which it justifies, it is proper for the prosecution to reply, setting up specially the causes of for- feiture. ° ■ People B. Van Cleve, 1 Mich. 363. road Co. ». The State, 16 Ind. 456. ' People v. Miller, 15 Mich. 354. * State «. Mississippi, Ouachita & » Id. Bed River R. Co. 20 Ark. 495. * Danville & White Lick Plank- « People e. Bank of Niagara, 6 526 QUO WAEEAWTO. [PAET II. § 725. "Where the information charges respondents as indi- %ddiials with having usurped and exercised the franchise of a corporation, without authority of law, and the respondents have the right under the statutes of the state to plead not guilty to the information, they may, with the plea of not guilty, also plead a disclaimer of any right to use and enjoy the franchise in question, the two grounds of defense not being inconsistent as regards the individual capacity in which respondents are acting. And in such ease the state is not entitled to judgment upon the disclaimer, since under the plea of the general issue, it devolves upon the prosecution to establish by proof the facts alleged in. the information. i § 726. In proceedings by information to test the right of a board of directors of a corporation to hold their office, it is not sufficient that they plead generally that they were elected, but they should also set out the particulars of their election.^ Nor can respondents in such proceedings rely upon two distinct titles, but they may be put to their election under which of the two they will defend, and a plea alleging two distinct and separate elections, by virtue of which they claim to hold their office, is bad for duplicity. ^ § 727. Great strictness is required in assigning a breach of a condition for the purpose of forfeiting a corporate franchise, and while the breach need not, perhaps, in all cases be stated in the very words of the condition, yet it should at least be stated according to its legal effisct and spirit.* But where an association has been created a body politic and cor- porate m presenti, with a proviso annexed to the act of incor- poration, not as a condition precedent, but as a defeasance, being fully created and organized in the first instance, its con- tinued existence is presumed until the contrary is shown. It Cow. 196. See also as to pleading ■ State v. Brown, 34 Miss. 688. in such case, People ». Bank of « Commonwealtli «. Gill, 3 Whart. Washington, lb. 211. And see as 338. to pleadings upon an information » j^ for a forfeiture of the franchise of a • People v. Manhattan Company, municipal corporation, King v. City 9 Wend. 851. of London, 3 Harg. State Trials, 545. CHAP. XVIII.j OF THE PLEADIIS^GS. 527 is not necessary, therefore, for such a corporation, in answer to an information for a forfeiture of its franchise, to plead the condition of defeasance and allege its performance, even though the time within -which it* was to be performed has long since elapsed. 1 And in general it would seem to be sufficient to aver in the plea the incorporation of the respondent as a body politic, without averring a compliance with all the require- ments of its charter, or alleging affirmatively a performance of the necessary acts to complete the corporate organization, leaving the prosecution to reply any matter which would show ' People V. Manhattan Company, 9 Wend. 351. This was aquo war- ranto information to procure a for- feiture of respondent's charter, which liad heen granted upon the following condition: "Provided, that said company shall, within ten years from the passing of this act, furnish and continue a supply of pure and wholesome water, suffi- cient for the use of all such citizens dwelling in said city as shall agree to take it on the terms to be de- manded hy the said company; in default whereof the corporation shall be dissolved." Mr. Justice Sutherland, for the court, says: " I believe it was not contended, and it certainly can not be success- fully, that a compliance with the proviso in this case was a con- dition precedent to the original rightful existence and organization of the defendants as a corporation. The first enacting clause of the act creates and declares the individuals therein named, and their associates, a body politic and corporate in ' presenti, while, by the very terms of the proviso, they were to have ten years thereafter to furnish the water. Neither their existence nor their general powers as a corpora- tion were in abeyance during that period. They had a right immedi- ately to exercise any of the powers conferred upon them by their char- ter. The proviso was strictly a defeasance, and not a condition precedent; and it was not neces- sary, therefore, for the defendants to notice it in their plea. Perhaps the counsel meant to contend that as the defendants were called upon by the information to show by what authority they now claim and exer- cise the franchise of being a cor- poration, they were bound to aver everything necessary to show a present right; and as the period limited by the proviso had long before elapsed, it was incumbent upon them, among other things, to show that they had performed that condition. It seems to me to be a satisfactory answer to this argu- ment to say that the corporation having been shown to have been legally created and organized, is in judgment of law supposed to con- tinue to exist until the contrary is shown, and to have performed all its duties, and among others, the duty of supplying the city of New York with pure and wholesome water." 528 QUO WAEEAWTO. [PART II. a failure on the part of the respondent to comply with its act of incorporation.! § 728. In Illinois it is held to be the proper course for the respondent in the information to plead thereto instead of answering. 2 WTiere, however, he has filed an answer instead of a plea, the technical distinctions between the two may be disregarded and the answer may be treated as a plea for the purposes of the case, and there may be a demurrer to such answer and joinder in demurrer, as in ordinary cases. ^ It is to be observed, also, that the familiar principle of pleading that a demurrer reaches back to the first defective pleading on either side applies to quo warranto informations. Where, therefore, the information is fatally defective, upon a demurrer to respondent's plea, the court will not inquire into the validity of the plea, the demurrer reaching back to the defect in the information.* And it is open to the respondent upon demurrer to his answer, where no issue of fact has been formed and no trial had upon the merits, to raise the question of whether resort has been had to the proper remedy, since an answer is not a waiver of the right to question the propriety of the relief sought.' § 729. By analogy to the principle governing the pleadings in ordinary actions at law, all the facts which are well pleaded in the answer or return to the information, are admitted by demurrer thereto. The question upon such demurrer then is, whether the material averments in the information are answered, and if not the demurrer will be sustained and respondent will have leave to amend his answer." And where it is alleged in the information that respondent holds and exercises his ofiice without legal warrant or qualification, and by his answer he avers a legal appointment and qualification, and an entry upon the duties of the ofiice, and also alleges, as a legal conclusion, that he has ever since held and enjoyed the ofiice, as he had a legal right to do, such answer is not ' People V. Rensselaer & Saratoga « People v. Mississippi & Atlantic R. Co. 15 Wend. 113. R. Co. 13 111. 66. ' People V. Peroells, 3 Gilm. 59. « People «. Whitcomb, 55 111. 173. ' ^^- ' State V. Beecher, 15 Ohio, 733. CHAP. XVIII.J OF THE PLEADINGS. 529 sufficient, since it is incumbent upon the respondent to set up all tlie facts necessary to constitute a good and sufficient title to tlie office. 1 § 730. In Ohio the doctrine was early established that the prosecutor in proceedings upon a quo warranto information for the forfeiture of a corporate franchise might pursue either of two courses : he might disclose in the information the specilic ground of forfeiture relied upon, or he might, in general terms, charge the respondent with exercising certain franchises without authority, and call upon it to show by what warrant such powers were claimed. The plea should then deny the facts charged, or set forth the authority relied upon, as the case might be, and the replication might then allege the acts upon which the prosecutor relied as working a for- feiture. These, again, might be denied, or a demurrer might be filed, following substantially the same course as in ordinary pleadings at common law. In this manner the authority to exercise the franchise in question was disclosed by the party claiming the right to its exercise, and the acts alleged to be unauthorized were pleaded by the party complaining thereof. ^ And it is held that the rules of pleading established by the code of procedure in Ohio are not applicable to proceedings in the nature of quo warranto, and that the pleadings in such cases are still governed by the rules prevailing at the adoption of the code.' • Id. » State V. MoDaniel, 22 Ohio St ' State v. Commercial Bank, 10 354. Ohio, 535. 34 CHAPTEE XIX. OF THE PRACTICE IN QUO WARRANTO. g 731. Practice on rule to show cause why information should not be allowed ; rule not always granted. 733^ Service of rule ; discretion as to granting rule. 733. Requisites of affidavits ; should be sworn positively. 784. Distinction as to allegations of title and of usurpation. 785. Process at common law upon the original writ and upon the infot- mation. 736. Jurisdiction of the person, how acquired. 737. Amendments freely allowed. 738. Rule to show cause may be opposed by affidavits. 739. Effect of a default the same as in ordinary civil actions. 740. Of the venue where jury trial is had. 741. New trials allowed as in civil actions. 743. Costs under statute of Anne. 743. Costs in New Yorli. 744. Courts averse to second application for same defect in title. § 731. The usual practice in obtaining leave to file an information in the natare of a quo warranto, at the sugges- tion of a private relator, is, unless otherwise provided by statute or local rules of practice, to present to the court an application or petition, verified by affidavit, upon which a rule issues requiring the respondent to show cause why the infor- mation should not be filed against him, and unless he shows such cause on the return as to put his right beyond dispute, the rule for the information will be made absolute, in order that the question concerning the right may be properly deter- mined.! And it has been held that the allowing an informa- ' United States «. Lockwood, 1 See also People v. Waite, 6 Chicai^o Finney's Wis. 359 ; Commonwealth Legal News, 175, decided in Su- ■u. Jones, 12 Pa. St. 365 ; In re Bank preme Court of Illinois, January 30, of Mount Pleasant, 5 Ohio, 349. 1874. (580) CHAP. XIX.J OF THE PRACTICE. 531 tion upon the filing of a suggestion, witliout a rule to show cause, constitutes sufficient ground for sustaining a motion to quash. 1 The practice, however, of proceeding in the first instance by the rule to show cause is by no means uniform, and where the proceedings are instituted for the usurpation of an office claimed by the relator as a matter of right, it has been held to be immaterial whether the relator proceeds in the first instance by the rule nisi, or asks leave to file the infor- mation. And the latter course is said to be equally proper where notice of the application is given the respondent, and where sufficient time is allowed to enable him to prepare affi- davits in opposition to the case presented.^ So it has been held that the rule to show cause is a matter of form rather than of substance, and that if the respondent has a prelimi- nary hearing, as upon a motion to quash, the omission of the rule is not fatal.* Under the English practice, the prosecutor is obliged, by rule of court, to specify in the rule to show cause all objections which he intends to urge against the title of respondent, and no objection not thus specified can be raised on the pleadings without leave of court."* § 732. It is to be observed with reference to the nature of the rule to show cause, that it is not regarded as a writ issuing out of the court and directed to an officer, requiring his offi- cial return thereto, but it is merely a rule of court which can be served by any person competent to transact business, and the time and manner of such service may be made to appear to the satisfaction of the court by affidavit of the person making the service.^. And it is held that the court is vested with a certain degree of discretion as to whether the rule shall be granted, or leave be given to file the information in the first instance. And where respondents' whole case touching the subject of the application had been disclosed by their ' Commonwealth b. Jones, 13 Pa. 365. St. 365. * Reg. Gen. Hil. Term, 7 & 8 Geo. ' State v. Burnett, 2 Ala. 140. IV. ' Murphy v. Farmers' Bank, 30 Pa. ' United States v. Lockwood, 1 St. 415, overruling as to this point Pinney's Wis. 859. Commonwealth v. Jones, 12 Pa. St. 532 QUO WAEEAN-TO. [pAET II. answer in a chancery proceeding, and by the answers of other persons favorable to them, the court upon an examination of such answers granted a rule for the information in the first instance. 1 § 733. The affidavits upon which the application is based should contain positive allegations of the facts on which the prosecutor seeks to assail the title of the respondent, and the courts are averse to granting leave to file the information upon affidavits which rest only on the belief of the affiant.^ And where the affidavit upon which a rule nisi was obtained against the mayor of a municipality, only alleged that the relator did not believe the mayor was duly sworn into his office, it was held insufficient and the rule was discharged.* JSTor, in such case, will the court entertain an additional affi- davit upon the hearing, for the purpose of contradicting an entry upon the corporate records, showing that the mayor was duly sworn.* So where the application for the rule is based upon an immemorial custom to elect in a particular manner, it is necessary to state in the affidavits the existence of such custom, and not merely to allege facts from whence the con- clusion might be drawn. ^ § 734. ITotwithstanding the rule as stated in the preceding section is well established, its application would seem to be confined to the allegations of title, and not those of usurpa- tion. And it is held to be unnecessary that' the affidavits upon which the rule to show cause issues should be sworn positively, as to the allegations of the usurpation, and that it is sufficient if they be sworn upon information and belief of the relator. And where no answer has been made to these allegations by the respondent, who has had full opportunity of denial, the rule will be made absolute, stifficient facts appearing to put ' People V. Kip, cited in note to 310 ; King v. Lane, 5 Barn. & Aid. People u. Eichardson, 4 Oow. 106. 488. And see ttia note as to the general ' King a. Newling, supra. practice and procedure on quo war- ' Id. ranto informations. ' King v. Lane, 5 Barn. & Aid. " See King v. Newling, 3 T. R. 488. CHAP. XIX.] OF THE PEACTICE. 533 tlie matter in course of inquiry.^ The distinction recognized is, as to whether the matter of hearsay and belief goes to the validity of the title to the office in question, or merely to the fact of usurpation. 2 And if the affidavits in support of the rule for the information omit a material fact pertinent to the subject of inquiry, and vs^hich is disclosed in an affidavit filed by the other side, the latter may be read by the pros- ecutor in support of the rule.^ § 735. The respondent must in all cases be brought into court by due and regular process, and it is irregular to pro- ceed against him merely by a rule to appear.* At common law, the first process upon the ancient writ of quo warranto was a summons, and upon default of appearance the liberties and franchises in controversy were seized. Upon the quo warranto information, however, a difiierent practice prevailed, and the first process issued was a venwe facias or subpoena, which was followed by a distringas if the former process failed to procure an appearance. ^ And the information being in the nature of a personal action, there could not be a seizure of the franchise upon the venire facias, but only after the dis- tringas had issued, though it would seem to have been other- vdse upon the writ of quo warranto." § 736. An appearance by respondent upon the rule to show cause is not an appearance upon the information, and he is not thereby in court for the purposes of the information. The object of the rule being merely to obtain leave to institute the action, the respondent is not in court until brought there by due process.' And where the respondent is notified of the application for leave to file the information, but fails to appear in pursuance of the notice, and leave is thereupon granted to file the information, without further process, and a rule to ' King V. Harwood, 2 East, 177 ; ger, 5 Binn. 353. King B. Slythe, 6 B. & C. 240. <■ Rex v. Trinity House, Sid. 86; ' King !). Slythe, supra. ' Rex v. Mayor of Hertford, Ld. ' King V. Mein, 3 T. R. 596. Raym. 426. * People -0. Richardson, 4 Cow. 97. ' Anon. 8 Salk. 104. See also Hambleton ®. The People, ' Commonwealth ®. Sprenger, 5 44 111. 458 ; Commonwealth ». Spren- Binn. 358. 534 QUO WAKKANTO. [pART II. plead is entered, a copy of which is served on respondent, who neglects to plead, the court acquires no jurisdiction to render judgment of ouster, since the respondent has never been for- mally brought into court or served with process. Even though he be informally notified of the pendency of the proceedings before rendition of the final judgment, the court is still with- out jurisdiction, since this can only be acquired by service of process in the name of the people, or by a voluntary appear- ajice. ■■ § 737. Although the information in the nature of a quo warrauto is still a criminal proceeding in form, yet unlike criminal pleadings, it may be amended at any time before trial, or even upon the trial. Regarding the proceeding as substantially a civil remedy, for the protection of a civil right, the same principles are held applicable which govern in the allowance of amendments in ordinary actions, and the courts incline to. a liberal allowance of amendments upon proper cause shown and where they are necessary in furtherance of substantial justice. ^ It follows necessarily from the liberal practice in allowing amendments, that any objections to the proceedings which do not touch substantial questions of right, but merely go to matters of form, and which may be cured by amendment, do not furnish siifficient ground for sustaining a motion to quash. ^ § 738. It is regarded as proper practice for the respondent to answer the rule to show cause by counter affidavits, in which he sets up the grounds of his opposition to making the rule absolute. If these affidavits present satisfactory reasons to the court why leave should not be given to file the informa- tion, the rule will be discharged without further proceed- ings.^ § 739. The information in the nature of a quo warranto ' Hambleton v. The People, 44 111. " Commonwealth v. Commercial 458. Bank, 28 Pa. St. 383. ' Commonwealth v. Gill, 8 Whart. * People ii. "Walte, 6 Chicago Legal 228; State D. Gleason, 12 Fla. 190; News, 175, decided in Supreme Commonwealth v. Commercial B'k, Court of Illinois, January 30, 1874 28 Fa. St. 388 OHAP. XIX.] OF THE PKAOTIOE. 535 being in effect substantially a civil remedy, though criminal in form, the effect of a default is the same as in ordinary civil actions. Where, therefore, the respondent is in default in answering or pleading to the information, he is regarded as confessing all its allegations which are well pleaded, and the court may thereupon proceed to judgment of ouster forth- with, i But in a case of great public importance, involving the title to the chief executive oiilce of a state, which is claimed by the relator, the court may in its discretion require satisfactory evidence of the relator's election to the ofSce, not- withstanding the respondent is in default. ^ § 740. It is frequently necessary that issues of fact arising in proceedings upon quo warranto informations should be sent to a jury for trial, and in some of the states this is provided for by statute. As to the question of the venue in such cases, it would seem, in the absence of any statutory provisions upon that point, that if the case be one of an office which is local in its nature and functions, such as that of sheriff of a county, the proceeding should be treated as a local one, and the issue sent for trial to the particular county to which the office per- tains, unless such a showing is made as to warrant a change of venue.* § 741. While it seems to have formerly been matter of doubt whether a new trial could be had upon an information, after an issue had been referred to a jury trial, the rule may now be regarded as definitely established, that a trial upon a quo warranto inforrriation occupies in this regard the same footing as a trial in ordinary civil actions, and in the absence of any statute upon the subject the practice will be governed by the common law rules applicable to the subject of new trials.* And the information being now regarded as in the nature of a civil action, it is proper to grant a new trial, as in ordinary cases, upon the ground that the verdict is contrary to the weight of evidence.^ So where an issue of fact pre- sented by the pleadings is referred to a jury for- trial, and a ' Attorney General v. Barstow, 4 ' People v. Cicott, 15 Mich. 326. Wis. 567. " People v. Sackett, 14 Mich. 243, 2 Id. ' King V. Francis, 3 T. R. 4S4. 536 QUO WARRANTO. [pART II. special verdict is found as to some of the facts in issue, but the verdict is silent as to other and important questions pre sented, the court may treat the proceeding as having resulted in a mis- trial, and direct the cause to be tried de novoA § 742. The statute of Anne authorized the recovery of costs by the successful party, and in cases of municipal offices and franchises, which were the only cases covered by this statute, provided that the court might give judgment for the costs of the prosecution, if the relator were successful, or for the costs expended by the respondent, if he prevailed in the action.^ This statute seems to have been generally followed in this respect in most of the states, either by direct legislation, or by recognition of the courts. Where, however, the informa- tion is filed to test the right to exercise the franchise of a municipal corporation, and the officers of the corporation file a disclaimer of any purpose or intention to exercise the func- tions of the offices to which they were elected, no costs will be allowed against them.^ § 743. In New York, the code of procedure has -abolished both the common law writ of quo warranto and the informa- tion in the nature thereof, and has substituted a civil action in their stead. The courts of that state, however, are still gov- erned largely by the common law rules as to the granting of costs in proceedings under this statutory remedy. And where judgment of ouster is rendered against the respondent, costs will be allowed against him, even though the relator may have failed to establish his own title to the office.* § 744. Where the application for leave to file an informa tion has once been made and refused, it will not again be granted against the same officer for the same alleged defect in his title, upon affidavits impeaching those filed in opposition to the former application, since the courts will not encourage parties in coming before them with an imperfect case in the first instance and supplying its defects upon the second appli- cation by alleged inconsistencies in the opposing affidavits.^ ' People 10. Doesburg, 17 Mich. » gj^te v. Bradford, 33 Vt. 50. 135. " People v. Clute, 52 N. T. 576. " 9 Ann. ch. 30, sec. V., Appendix ' King «. Orde, 8 Ad. & E. 430, A, post. note. CHAPTEE XX. OF THE JUDGMENT IN QUO "WARRANTO. § 745. Nature of the judgment at comtoon law. 746. Conclusive effect of judgment upon the original writ. 747. Oapiatur pro fine; judgment upon one of several issues. 748. Judgment of ouster conclusive as to prior election. 749. Judgment good in part and bad in part. 750. Judgment of ouster neither creates nor destroys rights. 751. Costs under statute of Anne. 752. Judgment of ouster against corporation. 753. Distinction between seizure of franchises and dissolution of corpo- ration. 754. Ouster not dependent upon claim of right ; may be allowed where usurpation has ceased. 755. Goods and effects of corporation not forfeited to state. 756. Effect of judgment of ouster upon the officer; bars mandamus to restore him. 757. Judgment does not declare vacancy; relator's right need not be determined. 758. Discretion as to fine ; omission not assignable for error. 759. Want of leave to file information ; judgment on demurrer. 760. Return of canvassers not conclusive; commission not conclusive. 761. Refusal to allow information a final judgment in Alabama. § 745. At common law, the judgment upon the ancient writ of quo warranto, if for the respondent, was that he be allowed his office or franchise. And in case of judgment for the king for a usurpation of the franchise, or for its mis-user or non-user, a judgment of seizure into the king's hands was rendered, if the franchise was of such a nature as to subsist in the hands of the crown; if not of such a nature, there was merely judgment of ouster for the purpose of dispossessing the party. In case of judgment for a seizure of the franchises into the king's hands, all franchises incident and subordinate thereto, and held by the same grant, were also forfeited. If C537^ 538 QUO WAEEANTO. [PAET II. the respondent disclaimed, judgment was rendered immedi- ately for the crown. And upon the other hand, if the attorney general confessed the respondent's plea, judgment was rendered for the allowance of the franchises. Such confession, however, did not conclude either the king or the court as to matters of law, but was only conclusive as to questions of fact, and even as to such questions it would seem to have been conclusive upon the crown only in matters of private concern, wherein the public had no interest. ^ § 746. The original writ of quo warranto being in the nature of a writ of right, judgment thereon was regarded as final and conclusive upon all parties, including even the crown.^ And it was doubtless due to this fact, as well as the dilatory nature of the process, that its place was gradually usurped by the information in the nature of a quo warranto, the judgment in which is less decisive, being ordinarily a mere judgment of ouster with a nominal fine. This distinction between the nature of the judgment applicable to the two remedies was early recognized by the court of kings bench, which held that the appropriate judgment upon an information brought to test the right to exercise a corporate franchise, was, if the respondents were found guilty, that they be fined and ousted from the particular franchise, thus distinguishing the remedy from the ancient writ, on which the judgment was that the franchise be seized into the king's hands. ^ In the celebrated case of the city of London, however, which was that of an information for the mis-user and usurpation of corporate franchises, judgment was rendered that the liberties, privileges and franchises of the corporation be seized into the hands of the king.* § 74:7. At common law, upon jiidgment by nil dicit, on a quo warranto miorvaaiioTi, & capiatur jn'O fine 'wa,& issued as an interlocutory process for the purpose of bringing the respondent before the court, preparatory to rendering final ' Com. Dig. Quo Warranto, C. 5. Raym. 426. And see 3 Black. Com. And see 3 Black. Com. 263. 263. " Rex «. Trinity House, Sid. 86. ^ King v. City of London, 8 Harg. ' Rex 0. Mayor of Hertford, 1 Ld. State Trials, 545. CHAP. XX.] OP THE JtrDGMENT. 539 judgment in the cause. Formal judgment of ouster was then rendered by the court, ousting the respondent from his office, although the fine might, under acts of parliament, be pardoned to the ofifender.i And where it was found that the respondent had been guilty of usurpation, judgment of ouster was ren- dered against him, even though other important issues were found in his favor. Thus, upon an information to show by what authority the respondent exercised the office of mayor, where two issues were presented and tried, the first as to the election, which was found in his favor, and the second as to the swearing in, which was found against him, judgment of , ouster was rendered, since the acting as mayor without being sworn was regarded as a usurpation for which the respondent should be punished, even though he might have been entitled to a mandamus to swear him into the office.^ And since the crown was not obliged to show any title, the respondent being required to show a complete title in himself as against the crown, if he failed in any one material issue, judgment was given against him.^ But where the respondent confessed the ' Queen v. Tyrrill, 11 Mod. Rep. ranto, where the defendant failed 335. in the'title he had set up. And it " In re Mayor of Penryn, Stra. seemed acknowledged that there 583. And the same principle is was none. At least none were men- recognized in King «. Reeks, Ld. tioned. Whereupon his lordship Raym. 1445, where it is said that proceeded to ohserve that in civil the judgment of the court in the cases, if the plaintiif has no cause case of the Mayor of Penryn was of action he can not have judg- affirmed on error to the house of ment. But this manner of proceed- lords. ing is quite different. For, if the 5 Bex B.Leigh, Burr. 3143. The defendant has usurped the franchise respondent in this case had claimed without a title, the king must have the office of Mayor under two titles, judgment. The defendant, there- one by prescription, the other under fore, is obliged to show a title, and a charter, but by his plea, he had the king has no need to traverse based his defense upon his claim anything but the title set up. If under the prescriptive right, which any one material issue is found for was tried and found against him. tliu crown the crown must have The reporter says: "Lord Mans- judgment." Mr. Justice Yates FIELD asked if they could cite any adds : " If the plea contains no title case where judgment had been re- against the crown, there must he fused to the crown upon an infor- judgment for the crown. In civil matiou in the nature of a quo war- actions the plaintiff must recover 540 QUO WAEEANTO. [I'AET II. usurpation for a part only of the time alleged, insisting upon an election as to the residue, judgment of ouster was refused, such a ease being distinguishable upon principle from that of usurpation for the entire time charged in the information. * § 748. The effect of an absolute judgment of ouster is con- clusive upon the person against whom the judgment is ren- dered, and is a complete bar to his again asserting title to the office or franchise by virtue of an election before the original proceedings. Where, therefore, upon an information in the nature of a quo warranto for exercising the office of alderman, the respondent disclaims all title to the office, thereby admit- ting his usurpation, and judgment of ouster is rendered against him upon a second information for exercising the functions of the same office, he is concluded from asserting a title under an election held prior to the filing of the former information under which he claims to have been sworn into the office.^ Nor will the respondent, in such case, be permitted to rely upon a peremptory mandamus, by virtue of which he was sworn into the office under such former election, since a mandamus to swear in an officer can not, of itself, confer title. ^ § 749. It would seem that the judgment may be good in part and bad in part, and in such case it will be affirmed as to the part held good, and reversed as to the residiie. Thus, where judgment of ouster was rendered, together with judg- ment for costs under the statute of Anne, and the court was of opinion that the case did not fall within the statute as to costs, that part of the judgment was reversed, and the judg- upon liis own title, in cases of in- fails in it, or in any chain of it, formation in nature of quo war- judgment must tie given against ranto for usurpations upon the him. Here the defendant has set rights of the crown, the defendant up a particular title ; this title upon must show that he has a good title which he grounds his claim to the against the crown. * * * The franchise is found against him. He defendant in quo warranto is called can not now depart from it. There- upon to show his title; to show fore the crown is here entitled to quo warranto he claims the fran- judgment." chise. He accordingly shows his ' Rex v. Biddle, Stra. 953 ; 8. C. title. The crown are only to answer sub. nom. King v. Taylor, 7 Mod. 169. this particular claim. He must at ' King r>. Clarke, 3 East. 75. once show a complete title. If he ' Id. CHAP, XX.] or THE JUDGMENT. 541 ment of ouster was sustained, being held good as a common law judgment.! § 750. In considering the effect of a judgment of ouster upon a quo warranto information brought to determine the title to a public office, it is to be borne in mind that the judg- ment itself creates no right, but is merely declaratory of rights already existing, the court being the instrument or medium through which the rights created by law are ascertained and definitely fixed. The judgment, therefore, neither creates a right in the successful party, nor destroys one which formerly belonged to the party ousted. Nor does the judgment of ouster affect the nature or functions of the office itself, and these continue unchanged, whether the original incumbent remains, or whether another is substituted in his place. ^ ' Eex V. Williams, Burr. 402. " Attorney General «. Barstow, 4 Wis. 567. This was an information in the nature of a quo warranto to test the title to the office of gover- nor of the state. It was objected that a removal of the person filling the office of governor, and the sub- stitution of the relator in his stead, would interfere with the executive department, for the reason that the person substituted would be the governor of the court, elected or created by the court. Upon this point Whiton, 0. J., for the court, says, p. 659 : " As the case now ap- pears upon the record, the respond- ent has no legal right to the office, and the relator has a perfect right to it, by virtue of the clause of the constitution above referred to. If the faotB should remain unchanged, a judgment of ouster in this court against the respondent, and a judg- ment establishing the right of the relator, would not create a right in the latter, or destroy one which be- longs to the former. Their rights are fixed by the constitution, and the court, if it has jurisdiction ot this proceeding, is the mere instru- ment provided by the constitution to ascertain and enforce their rights as fixed by that instrument. Its office is the same as in all contro- versies between party and party; not to create rights, but to ascertain and enforce them. The same argu- ment would apply with equal force to an information in the nature of a quo warranto against a sheriff or any other officer. We do not think it well founded. It was contended further by the counsel for the re- spondent, that a judgment of ouster in this court against the respondent and a judgment in favor of the relator, would interfere with the executive department, because it would transfer the office of the gov- ernor from the former to the latter. We do not think this is a correct statement of the effect of a judg- ment of ouster in cases of this de- scription. It seems clear to us, that a judgment of ouster against the incumbent of an office in no way affects the office. Its duties are the 542 QUO WARRANTO. [PAET II. § 761. The statute of Anne extending and regulating the use of quo warranto informations in ca;ses affecting municipal ofHces and franchises, expressly enacted that in case any person should be found guilty of usurping or intruding into sucli offices or franchises, judgment of ouster should be given as well as a iine for such usurpation or intrusion, together with costs, and if judgment should be given for respondent, it should also carry costs, i But it is held that on rendering judgment upon the common law information, if there be no relator the court has no power to give judgment for costs against the respondents. ^ § 752. Following the common law rule, as well as the 0,0 J statute of Anne, the judgment usually rendered upon quo warranto informations is that of ouster, if the respondent be found guilty of a usurpation of the franchise, with sometimes a nominal fine.^ And where upon an information to test the right of a corporation to exercise certain corporate franchises not conferred by its charter, if the title set up by way of defense be incomplete, the people are entitled to judgment of ouster.* § 753. A clear distinction is recognized by the court of kings bench between a judgment of seizure, by which the franchise is seized into the king's hands, and a judgment dis- solving the corporation itself And where, upon an informa- tion against the officers and members of a municipal corpora- tion, judgment is rendered that the liberties of the corporation be seized into the hands of the king, the judgment does not have the effect of dissolving the corporation or amoving the members from their corporate franchise. Such a judgment same, whether the original incum- It remains as it was before the bent remains in it, or whether removal." another is substituted in his place. ' 9 Anne, ch. 20, sec. 5. See Ap- If a removal from an office by a pendix A. judgment of ouster against the in- ' Commonwealth v. Woelper, 3 S. cumbent would affect the office & R. 53. itself, so also would a removal by ^ See State b. Brown, 5 R. I. 1. the death of the incumbent, or his * People t>. Utica Insm-ance Co. resignation. In all these cases we 15 Johns. Rep. 357. think the office is in no way affected. OHAP. XX.] OP THE JUDGMENT. 543 neither extinguishes nor dissolves the body corporate, and the mere seizure by the crown of certain franchises and liberties which it has xisurped, does not extinguish the corporate entity.i Substantially the same distinction has been recog- nized in New York, where it is held, under the statute regulat- ing the use of quo warranto informations, that where the information is filed against individuals for unlawfully assum- ing to be a corporation, judgment of ouster is rendered against the individuals themselves, but as against corporaticins judg- ment of ouster is rendered for exercising a franchise not authorized by their charter, and in such case the corporation is ousted only of the franchise usurped, and not of being a corporation. 2 So where trustees of an incorporated village ' Smith's case, 4 Mod. Rep. 53. Per euria : " A corporation may be dissolved, for it is created upon a trust, and if that he broken it is forfeited; but a judgment of seizure can not he proper in such a case, for if it be dissolved, to what pur- pose should it be seized? There- fore, by this judgment in the quo warranto the corporation was not dissolved, for it neither extinguishes nor dissolves the body politic. Wherever any judgment is given for the king for the liberty which is usurped, it is, quod extinguatur, and that the person who usurped such a privilege shall not Ubertat, etc., nul- latenus intromiUat, etc., which is the judgment of ouster; but the quo warranto must be brought against particular persons. But where it is • for a liberty claimed by the corpo- ration, there it must be brought against the body politic ; in which case there may be a seizure of the liberties, which will not warrant either the seizure or dissolving of the corporation itself" See, also, as to effect of judgment of ouster upon a corporation, opinion of CoLDBiT, senator, in Utica Insurance Co. V. Scott, 8 Cow. 720. '2 People V. Rensselaer & Sarat>iga R. Co. 15 Wend. 113. Savage, C. J., for the court, says, p. 128 : "Whenever individuals or a corpo- ration shall be found guilty, eithei of usurping or intruding into any office or franchise, or of unlawfully holding, judgment of ouster shall be rendered, and a fine may be im- posed ; but where the proceeding is against a corporation, and a convic- tion ensues for mis-user, non-user, or surrender, judgment of ouster and of dissolution shall he rendered, which is equivalent to judgment of seizure at common law. If there- fore, the information in this case had for its object to oust the defend- ants from acting as a corporation, and to test the fact of their incor- poration, it should have been filed against individuals; if the object was to effect the dissolution of a corporation which had had an actual existence, or to oust such corporation of some franchise which it unlawfully exercised, then the information is correctly filed 544 QUO -WAEEANTO. [PAET II. fail to show a good title to their office, on proceedings against them by information to test their title, judgment of onster will be rendered against the trustees themselves, but not against the corporation.! But in Vermont it is held, that where the information is filed to test the right to exercise the franchise of a municipal corporation, and the court determines that the organization of the pretended corporation is a mere usurpation of a corporate franchise, without any legal warrant, judgment may be given that the pretended corporation be dissolved. 2 Where, however, the proceedings are instituted against a mere agent of the corporation, there can be no judg- ment of seizure of the corporate franchise for an abuse of the charter, such judgment being proper only in proceedings against the corporation itself.' § 754. As regards the judgment of ouster at common law, it is to be observed, that it is not at all dependent upon whether the respondent does or does not claim a right ti exercise the office or franchise in controversy, the question being whether he has done any act which necessarily implies a claim to its exercise. And if such act can be shown, judg- ment of ouster will be given, notwithstanding the usurpation has ceased before the trial.* So where a statute gives the pre- against the corporation. The dls- individuals for unlawfully assum- tinotion is well exemplified by Sir ing to be a ^corporation. It is ren- ROBBRT Sawtbk, in The King v. dered against corporations for ex- The City of London, cited in 3 T. ercising a franchise not authorized R. 523. He says the rule is this ; by their charter. In such case the When it clearly appears to the court corporation is ousted of such fran- that a liberty is usurped by wrong, chise, but not of being a corpora- and upon no title, judgment only tion. Judgment of seizure is given of ouster shall be entered. But against a corporation for a forfeit- when it appears that a liberty has ure of its corporate privileges." been granted, but has been mis- See, also, People ■». Bartlett, 6 used, judgment of seizure into the Wend. 432. king's hands shall be given. The ' People v. Bartlett, 6 Wend. 422. reason is given : that which came ^ State v. Bradford, 32 Vt. 50. from the king is returned there by ' Smith v. The State, 21 Ark. 294. seizure ; but that which never came * King v. Williams, 1 Black. W. from him, but was usurped, shall 93. But see State v. Taylor, 13 Ohio be declared null and void. Judg- St. 130. ment of ouster is rendered against CHAP. XX.J OF THE JUDGMENT. 545 vailing party in proceedings iipon a quo warranto information the right to costs absolutely, the court will give judgment of ouster, notwithstanding the information is entirely fruitless, the term of office having long since exjjired.i § 755. While it is competent upon judgment against a cor- poration, on a quo warranto information for a violation of its charter, to award that the privileges, liberties and franchises of the corporation be seized into the custody of the state, it is error to award that the goods, chattels, credits and effects of the respondent be seized into the custody of the state. The ownership of the corporation does not terminate until its dis- solution, and the better doctrine is, as we have already seen, that the judgment of seizure does not of itself work a disso- lution. Hence nothing is forfeited to the state but the corpo- rate franchises and liberties, which came from the state origin - ally. 2 ' People -0. Loomis, 8 Wend. 396. ^ State Bank «. The State, 1 Blackf. 367. This was a quo warranto information for the purpose of de- termining whether the respondent, a l)anking corporation, had violated its charter. The respondent being found guilty, judgment was ren- dered that " the privileges, liberties and franchises of said president, directors and company of the said bank be seized into the hands and custody of the said state, together with all and ' singular their goods and chattels, rights, credits and ef- fects, and all and singular their lands, tenements and heredita- ments, of what kind, nature and description soever, with costs " etc. The court, Hoi.man, J., say : " There are but two grounds on which it can be contended that the corporate effects fall into the hands of the state : 1st, as a forfeiture for abus- ing the franchises; or 2d, for the want of an owner by the dissolu- 35 tion of the corporation. When we examine the first of these grounds, we find nothing in the books to support an idea that the abuse of corporate franchises occasions a for- feiture of lands or goods, rights or credits, or, in fact, occasions any other forfeiture but the franchises themselves. The consequence of a breach of the implied condition on which their liberties were granted, was not that they should forfeit their property or possessions if they abused their franchises, but only that they should forfeit the fran- chises. That which comes out of the hands of the king is the proper subject of forfeiture, the king, by the seizure, resuming what origin- ally flowed from his bounty. Au- thorities leading to this conclusion are numerous. See the cases cited in 2 Bac. 32, and in The King v. Amery, 2 T. R. 515. For the for- feiture is the same for non-user, when no property has been held or 546 QirO WAEEANTO. [PAET II. § 756. The effect of judgment of ouster upon the officer himself, where the information is brought to test the right ol one usurping an office, is to constitute a full and complete amotion from the office, and to render null and void all pre tended official acts of the officer after such judgment, and the party thus amoved is entirely divested of all official authority and excluded from the office as long as the judgment remains in force, i Such judgment is therefore regarded as an effectual bar to proceedings in mandamus, to procure a restoration to the office. 2 And in such case, the court will presume, upon its judgment being made known to the chief executive officer of the state, whose duty it is to commission officers, that he will comply with the judgment and commission the person entitled to the office as declared by the judgment of the court. Upon this presumption an attachment will be refused against rights exercised, as for misuser or abuser, after tlie possession of much property and the exercise of exten- sive rights and credits; and the judgment is the same in both cases. Consequently, the judgment could not direct a seizure of the corporate possessions, as a forfeiture for the violation of the charter. Nor is the second ground — that the property falls to the state for the want of an owner, on the dissolution of the corporation — more tenable as a foundation on which to sustain this judgment. For the ownership of the corporation does not cease until its dissolution. And whether it is dissolved by the judgment of seizure or not, until the state has execution on that judgment, is not here very material. For if the cor- poration is dissolved by the judg- ment the judgment must be regu- larly entered, and have its full effect before the dissolution takes place; and it is not till then that the prop- erty can be said to be without an owner. The loss of the property to the corporation is a consequence of the judgment; and it is a contra- diction of the first principles of reason, a complete reversal of effect and cause, to make such loss of property a part of the judgment. That which can not exist until after the judgment, can never be the sub- ject-matter on which the judgment is given. But the better opinion seems to be, that the corporation is not dissolved by the judgment of seizure, but that it exists until the franchises are seized by the execu- tion on that judgment. See 2 Kyd on Cor. 409, 10, and the authorities there cited. Consequently, the last shadow of a support for this judg- ment, on this ground, must vani.sh." ■ King V. Serle, 8 Mod. Rep. 332; State I). Johnson, 40 Geo. 164. And see King ®. Hull, 11 Mod. Rep. 390. " King v. Serle, supra. CHAP. XX.] OF THE JUDGMENT. 547 the unsuccessful party for contempt of court in still assuming to exercise the functions of the office. * § 757. It is to be observed, however, that judgment of ouster does not necessarily have the eflfect of declaring that a vacancy exists in the office, since this is necessarily dependent upon the further question of whether there is any one else entitled to the office. ^ And it is competent for the court, upon the hearing, to give judgment of ouster against the respondent, without determining as to the relator's right, and where there is doubt as to the relator's election to the office in controversy, judgment may be given against the respondent, leaving the relator's right to be determined by another pro- ceeding. ^ § 758. The propriety of imposing a fine in addition to judgment of ouster is usually regarded as a matter of sound judicial discretion, and where no improper motives are alleged or shown against the party ousted, the fine imposed will be merely nominal.* And though the omission of a fine may be technically improper, yet it is so conclusively for the ben- efit of the respondents that they can not afterwards assign it for error. 5 § 769. As regards the objection that leave of the court was not obtained in the first instance to the filing of the informa- tion, it is held merely a formal objection, and after judgment of ouster is obtained the judgment will not be reversed because of such objection.* And where, upon overruling respondent's demurrer to the complaint or petition, the court is satisfied that he can not be benefited by permission to answer, judgment of ouster may be rendered forthwith.'' § 760. Judgment of ouster may be given against one who was not duly elected to the office claimed, notwithstanding the return or certificate of a board of canvassers of the election 'State B. Johnson, 40 Geo. 164. ' State Bank ». The State, 1 Blackf ^ State .. Kails County Court, 45 267.^.^^^^^ ^ ^^^ ^^ Mo. 58. » People u. Phillips, 1 Denio, 388. ,' , „ .q™ „,. . „. . T3 K 13 T 1 State V. Dousman, 28 Wis. 541. ' State V. Brown, 5 R. I. 1. ' 548 QtrO -WAERABTTO. [PAET II. in Ms favor, since sucli return is by no means conclusive and the courts may go behind it and examine the facts as to the legality of the election. * I^or will the holding of a commis- sion for the office prevent the court from giving judgment of ouster, if the incumbent was not legally elected, since the title to the office is derived from the election and not from the commission. 2 Even though the incumbent were properly elected in the first instance, yet if he was never sworn into the office, judgment of ouster may be given. ^ § 761. In Alabama, it is held that the refusal of a court of general common law jurisdiction to allow an information in the nature of a quo warranto to be filed, upon the relation of a private citizen claiming a right to the franchise or office which is alleged to have been usurped, is so far a final judg- ment that it may be reviewed on writ of error.* ' People V. Van Slyck, 4 Cow. 297 ; ' In re Mayor of Penryn, Stra. State V. Steers, 44 Mo. 223. 582. " State V. Steers, supra. * State v. Burnett, 2 Ala. 140. THE LAW OF PROHIBITION. OHAPTEE XXI. OF THE WRIT OF PROHIBITION. I. Natttrb akd Pckposb of the "Wbit, § 762 II. PBINCrPLBS GOTEBHING THE JtTRISDICTION, 773 III. Practice and Procbdukb m Prohibition 795 I. Natuee and Puepose of the Weit. 8 763. Definition of the writ. 763. Comparison of prohibition with mandamus and injunction. 764. Ancient origin of the writ ; used in -England against ecclesiastical courts. 765. The writ used in this country ; courts granting it ; not a writ of right. 766. A preventive rather than a corrective remedy. 767. Only allowed for usurpation of power; not granted where court has jurisdiction. 768. Proceedings not a part of original action. 769. Distinction as to proceedings of a judicial and of a ministerial nature ; writ only granted for the former. 770. Prohibition not granted wherfe other remedy exists. 771. Not granted where relief may be had by appeal. 773. Not allowed to take the place of writ of error or certiorari. § 762. The writ of prohibition may be defined as an extra- ordinary judicial writ, issuing out of' a court of superior (549) 550 PEOHiBiTiosr. [part II. jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdic- tion with which it is not legally vested. It is an original remedial writ,i and is the remedy afforded by the common law against the encroachments of jurisdiction by inferior courts, and is used to keep such courts within the limits and bounds prescribed for them by law.^ The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital import- ance to the due administration of justice that every tribimal vested with judicial functions should be confined strictly to the exercise of those powers with which it has been by law entrusted. 3 § 763. Some points of similarity may be noticed between this extraordinary remedial process and the extraordinary remedy of courts of equity by injunction against proceedings at law. Both have one common object, the restraining of legal proceedings, and each is resorted to only when all other remedies for attaining the desired result are unavailing. This vital difference is, however, to be observed between them, that an injunction against proceedings at law is directed only to the parties litigant, without in any manner interfering with the court, while a prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim. An injunction usually recognizes the jurisdiction of the court in which the proceedings are pending, and proceeds on the ground of equities affecting only the parties litigant, while the prohibition strikes at once at the very jurisdiction of the court. The former remedy affects only the parties, the latter is directed against the forum itself. As compared with the extraordinary remedy by mandamus, prohibition may be said in a certain sense to be its exact counterpart, since mandamus is an affirmative remedy, com- manding certain things to be done, while prohibition is nega- ' Thomas v. Mead, 36 Mo. 233. = Quimbo Appo v. The People, 3& " People V. Works, 7 Wend. 486. N. Y. 531. CHAP. XXI.J NATUKE 01' THE WlilT. 551 tive in its nature, and forbids the doing of certain things which ought not to be done.i § 764. The writ of prohibition is of very ancient origin, and it may be said to be as old as the common law itself. In England, the jurisdiction by this extraordinary remedy has generally been exercised only by the court of kings bench, though it is not exclusively confined to that tribunal. ^ From the earliest times the writ has been employed in that country to prevent the encroachment of the ecclesiastical upon the civil courts, and by far the larger portion of the English authorities upon the subject are confined exclusively to questions of ecclesiastical law having no application in this country. § 766. Like other common law remedies, prohibition is regarded as generally applicable in this country, unless abol- ished by positive statutory enactment. ^ Being an extraor- dinary remedy, however, it issues only in cases of extreme necessity, and before it can be granted it must appear that the party aggrieved has applied in vain to the inferior tribunal for relief. The jurisdiction is exercised by appellate or superior courts to restrain inferior courts from acting without authority of law, where damage and injustice are likely to follow from such action. And to this extent it may be regarded as one of the means by which appellate courts exercise their jurisdic- tion,* though, as we shall hereafter see, it does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal or writ of error. ISTor is it a writ of right, granted ex debito jtistitim, but rather one of ' Thomas v. Mead, 36 Mo. 233. to cease from the prosecution there- ' 3 Black. Com. 111. " A prohibi- of, upon suggestion that either the tion," says the learned commenta- cause originally, or some collateral tor, " is a writ issuing properly out matter arising therein, does not be- of the court of kings bench, being long to that jurisdiction, but to the the king's prerogative writ; but for cognizance of some other court." the furtherance of justice it may ' Arnold e. Shields, 5 Dana, 18. now also be had in some cases out " State v. Judge of Commercial of the court of chancery, common Court, 4 Rob. La. 48. And see State pleas, or exchequer, directed to the v. Judge of Fourth Judicial Dis- judge and parties of a suit in any trict, 10 Rob. La. 169. inferior court, commanding them 552 ■ PEOHIBITION. [part II. sound judicial discretion, to be granted or withheld according to the circumstances of each particular case.i And being a prerogative writ, it is to be used, like all other prerogative writs, with great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial pro- ceedings when none of the ordinary remedies provided by law are applicable.^ § 766. Another distinguishing feature of the writ is that it is a preventive rather than a corrective remedy, and issues only to prevent the commission of a future act, and not to undo an act already performed. Where, therefore, the pro- ceedings which it is sought to prohibit have already been dis- posed of by the court, and nothing remains to be done either by the court or by the parties, the cause having been absolutely dismissed by the inferior tribunal, prohibition will not lie, even though the case was thus disposed of after service upon the court of a rule to show cause why the writ should not issue, l^or will the suggestion that there are other suits of the same nature pending against the relator in the same court avail to procure the writ, since the court will not issue a pro- hibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases. ^ ' KinloCh V. Harvey, Harp. 508. by the suggestion of the relator, the ^ Washburn i>. Phillips, 2 Mete, court is informed he is about to do. 396. If the thing be already done, it is ^ United States «. HoflEman, 4'Wal. manifest the writ of prohibition 158. This was a rule nisi by the can not undo it, for that would re- Supreme Court of the United States, quire an affirmative act; and the commanding a district court to only eflfect of a writ of prohibition show cause why a prohibition Is to suspend all action and to pre- should not issue to restrain certain vent any further proceeding in the proceedings in admiralty. The re- prohibited direction. In the case turn alleged that after service of the before us the writ, from its very rule the admiralty suit had been nature, could do no more than for- dismissed by libellant on his own bid the judge of the district court motion and at his own costs. Mr. from proceeding any further in the Justice Miller, for the court, says : case in admiralty. The return "The writ of prohibition, as its shows that such an order is un- name imports, is one which com- necessary, and will be wholly use- mands the person to whom it is less, for the case is not now pending directed not to do something whicli, before that court, and there is no CHAP. XXI.] NATURE OF THE WRIT. 553 § 767. It follows from the extraordinary nature of the remedy, as already considered, that the exercise of the juris- diction is limited to cases where it is necessary to give a gen- eral superintendence and control over inferior tribunals, and it is never allowed except in cases of a usurpation or abuse of power, and not then unless other existing remedies are inade- reason to suppose that it will be in any manner revived or brought up again for action. The facts shown by the return negative such a pre- sumption. Counsel has argued very ingeniously that the case should be considered as remaining in the court below, in the same position as it was when the rule issued from this court; but we can not so regard it. By the action of the libellant and the consent of the court, the case is out of court, and the relator is no longer harrassed by an at- tempt to exercise over him a juris- diction which he claims to he un- warranted. If the return shows no more, it shows that the district judge has no intention of proceed- ing further in that case. Now, ought the writ to issue to him under such circumstances ? It seems to be an offensive and useless exercise of authority for the court to order it. The suggestion that there are or may be other cases against the relator of the same character can have no legal force in this case. If they are now pending, and the rela- tor will satisfy the court that they are pioper oases for the exercise of the court's authority, it would pro- bably issue writs instead of a rule, but a writ in this case could not re- strain the judge in the other cases by its own force, and could affect his action only so far as he might respect the principle on which the court acted in this case. We are not now prepared to adopt the rule that we will issue a writ in a case where its issue is not justified, for the sole purpose of establishing a principle to govern other cases. We have examined carefully all the cases referred to by counsel which show that a prohibition may issue after sentence or judgment ; but in all these cases something remained which the court or party to whom the writ was directed might do, and probably would have done, as the collection of costs, or otherwise en- forcing the sentence. Here the re- turn shows that nothing is left to be done in the case. It is altogether gone out of the court. These views are supported by the following cases : In United States v. Peters, 3 Dallas, 131, whicli was an applica- tion for prohibition to the admiral- ty, this court suspended its decision to give the libellant an opportunity to dismiss his libel. The court finally issued the writ, but there seems no reason to doubt, from the report of the case, that it would have considered such action by the libellant as an answer to the request for the writ. In the case of Hall v. Norwood, Siderfin, 165, — a very old case, when writs of prohibition were much more common than now,' — a prohibition was asked to a court of the Cinque Ports, at Dover. While the case was under cousidera^ tion, the reporter says : ' On the other hand'the court was informed 554 PKOHiBiTiON. [part II. quate to afford relief, i If, therefore, the inferior court has jurisdiction of the subject matter in controversy, a mistaken exercise of that jurisdiction or of its acknowledged powers will not justify a resort to the extraordinary remedy by pro- hibition.2 Thus, it will not lie to prevent an inferior court from proceeding under a rule to show cause why a mandamus should not issue, on the ground that the rule was improjierly issued, provided the court had jurisdiction by mandamus. ^ § 768. As regards the nature of the proceeding or action in prohibition, it is to be observed that it is in no sense a part or continuation of the action prohibited, by removing it from a lower to a higher court for the purpose of obtaining a deci- sion in the latter tribunal. So far from this, it is regarded as wholly collateral to the original proceeding, being intended to arrest that proceeding, and to prevent its further prosecution by a court having no jurisdiction of the subject matter in dispute. In other words, it is substantially a proceeding between two courts, a superior and an inferior, and is the means by which the superior tribunal exercises its superin- tendence over the inferior, and keeps it within the limits of its rightful jurisdiction. It is manifest, therefore, that the remedy by prohibition is distinct from and independent of the original proceeding, although collateral to it, and that, whether the original action is civil or criminal, the nature and object of the remedy by prohibition are the same, it being a civil proceeding to recover damages for the exercise of an unlawful jurisdiction, and to prevent its further exercise.* § 769. A distinction is taken, in the exercise of the juris- diction, between cases where the proceedings of the court tliat they had proceeded to judg- the cause is ended.' The rule here- ment and execution at Dover, and tofore granted in this case is dis- therefore that they move here too cliarged." late for a prohibition, and of this ' Exparte Greene, 29 Ala. 53. See opinion was the court, since there Ex, parte Smith, 34 Ala. 456. is no person to he prohibited, and ^ ExparteGreene, supra; Exparte possessions are never taken avray or Peterson, 33 Ala. 74. disturbed by prohibition.' The ° Ex parte Peterson, supra. marginal note by the reporter is ■* Mayo i). James, 13 Grat, 17. this : ' Prohibition will not lie after CHAP. XXI.] WATUBE 03? THE WKIT. 555 which it is sought to prohibit are of a judicial nature, and cases where they are merely administrative or ministerial. And while the writ will lie in proper cases as to matters of a purely judicial nature, it will not go if the proceedings which it is sought to prevent are only ministerial, i Thus, it will not lie to prevent the issuing of an execution, this being regarded as in no sense a judicial, but only a ministerial act.^ And where an inferior court of limited jurisdiction, in addi- tion to its judicial powers, is vested with certain functions of an administrative or ministerial nature, prohibition will not lie as to the latter.^ § 770. Like all other extraordinary remedies, prohibition is to be resorted to only in cases where the usual and ordinary forms of remedy are insuflScient to afford redress. And it is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists, and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law.* ' Ex pwHe Braudlaclit, 2 Hill, 367 ; B. Mon. 672. Ex pwrte Braudlacht State n. Clark Co. Court, 41 Mo. 44. was an application for a writ of pro- "The office of a proliibition," says hibition to restrain the issuing of an Mr. Justice Cowbn, in Ex parte execution upon a judgment in an Braudlacht, " is to prevent courts inferior court, which had been from going beyond their jurisdio- removed by certiorari to an ap- tion in the exercise of judicial, not pellate court. Mr. Justice Cowbn, ministerial power. Otherwise we for the court, says: "There is might be called on to send the writ the less reason in this case for whenever a justice of the peace was resorting to a prohibition, be- about to issue civil or even criminal cause the party claiming to be process irregularly." aggrieved has other remedies en- ^ Ex varte Braudlacht, supra. tirely effectual. If the execution 3 State V. Clark Co. Court, 41 Mo. sought for shall turn out to be void, 44. the justice and parties may, should ^ Ex parte Braudlacht, 2 Hill, 367 ; a levy take place, be proceeded State V. Judge of County Court, 11 asainst as trespassers; if issued in Wis. 50 ; Cooper v. Stocker, 9 Rich. cielianoe of the certiorari, the pro- 292 ; State v. Judge of Fourth Dis- ceeding will be punishable as a trict Court, 11 La. An. 696 ; State v. contempt. The writ of prohibition, Judge of Fourth District Court, 21 like mandamus, quo warranto, or La. An. 123 ; People v. Seward, 7 certiorari, ought not to issue where Wend. 518 ; Sasseen D.Hammond, 18 there are other remedies perfectly 556 PKOHIBITION. [PAET II. § 771. It follows necessarily from the doctrine laid down in the foregoing section, that the writ will not be allowed to take the place of an appeal, nor will it be granted as an exer- cise of purely appellate jurisdiction. In all cases, therefore, where the party aggrieved may have ample remedy by an appeal from the order or judgment of the inferior court, pro- hibition will not lie, no such pressing necessity appearing in such cases as to warrant the interposition of this extraordinary remedy, and the writ not being one of absolute right, but resting largely in the sound discretion of the court. ^ Thus, where the defendant in an action instituted in an inferior court, pleads to the jurisdiction of such court, and his plea is overruled, no sufficient cause is presented for granting a pro- hibition, since ample remedy may be had by an appeal from the final judgment in the cause. ^ JSTor will the writ go to restrain an inferior court from proceeding with certain attach- ment suits, upon the ground of the insufficiency of the affidavit on which the attachments were issued, since the court itself may affiDrd relief, or the party aggrieved may resort to an appeal. 5 And it has been held that the writ is not an appro- priate remedy in a court of purely appellate jurisdiction, the revisory powers of such court being considered adequate to affijrd relief from the action of subordinate tribunals.* It follows, also, from the principles already considered, that mere irregularities in the proceedings of an inferior court are not sufficient warrant for granting a prohibition, since the allow- ance of the writ upon such grounds would be the exercise of adequate. We have a discretion to State ». Nathan, 4 Rich. 51.3; State grant or deny the writ, (Gamtt, J., i). Judge of Fourth District Court, in State d. Hudnall, 3 Nott. & McC. 11 La. An. 696 ; Ex parte Peterson, 419, 433 ;) and it would, I appre- 33 Ala. 74 ; People v. Marine Court, hend, in general, be a very good 36 Barb. 341 ; Symes v. Symes, reason for denying it, that the party Burr. 813. has a complete remedy in some ' State ii. Judge of Fourth District other and more ordinary form." Court, 11 La. An. 696. ' State D. Judge of Fourth Dis- " People v. Marine Court, 36 trict Court, 21 La. An. 123 ; People Barb. 341. e. Wayne Circuit Court, 11 Mich. * Sasseen 1). Hammond, 18 B. 893 ; McDonald v. Elfe, 1 N. & M. Mou. 672. 501 ; State ». Wakely, 3 JST. & M. 410 ; OHAP. XXI.] NATTTEE OF THE "WRIT. 557 appellate power, and the writ is never granted for appellate purposes, nor to review the proceedings of a subordinate court. 1 § 772. Another fundamental principle, and one which is to be constantly borne in mind in determining whether an appro- priate case is presented for the exercise of this extraordinary jurisdiction, is, that the writ is never allowed to usurp the functions of a writ of error or certiorari, and can never be employed as a process for the correction of errors of inferior tribunals. And the courts will not permit the writ of pro- hibition, which proceeds upon the ground of an excess of juris- diction, to take the place of or be confounded with a writ of error, which proceeds upon the ground of error in the exercise of a jurisdiction which is conceded. The proper function of a prohibition being to check the usurpations of inferior tribu- nals, and to confine them within the limits prescribed for their operation by law, it does not lie to prevent a subordinate court from deciding erroneously, or from enforcing an erroneous judgment in a case in which it has a right to adjudicate. In all cases, therefore, where the inferior court has jurisdiction of the matter in controversy, the superior court will refuse to interfere by prohibition, and will leave the party aggrieved to pursue the ordinary remedies for the correction of errors, such as the writ of error or certiorari. ^ In the application of the principle, it matters not whether the court below has decided correctly or erroneously; its jurisdiction being conceded, pro- hibition will not go to prevent an erroneous exercise of that jurisdiction.* • McDonald d. Elfe, 1 N. & M. 501 ; State v. Wakely, 2 N. & M. 410, ' Ex pa/rte Ellyson, 20 Grat. 10 Arnold v. Shields, 5 Dana, 18 ; Wil son D. Berkstresser, 45 Mo. 383 Cooper V. Stocker, 9 Rich. 293; JSx 283. parte Blackbnrn, 5 Ark. 21 ; State v. Columbia & Augusta R. Co. 1 Rich. N. S. 46; Mx pa/rte QorAon, 3 Hill, 863; People v. Seward, 7 Wend. 518. ' Wilson V. Berkstresser, 45 Mo. 558 PKOHIBITIOW. [PAKT II II. Peinoiplbs Govbening the Jueisdiction. I 773. Plea to the jurisdiction must be interposed in court below. 774. Distinction as to granting prohibition before or after judgment of the inferior court. 775. Must be some person against whom writ can be enforced ; sentence of court martial. 776. Granted against courts of equity ; appointment of receivers. 777. Granted against justices of peace and petty courts. 778. Parties not allowed to make a jurisdiction by dividing cause of action in petty courts. 779. Parties to the proceeding ; degree of interest required. 780. Intention of court to proceed must clearly appear. 781. "Writ may be granted where court has jurisdiction, but has exceeded its powers. 783. Jurisdiction limited to judicial tribunals ; taxing officers. 783. Not granted to prevent governor from issuing commission. 784. Common law rules applicable ; board of county officers. 785. Of the courts entrusted with the jurisdiction. 786. Jurisdiction of the United States courts. 787. Prohibition from federal to state courts. 788. Questions of jurisdiction to be determined by superior court. 789. Writ lies pending appeal from inferior court. 790. Illustrations of the jurisdiction. 791. Writ granted to protect records and seal of superior court. 792. When refused against court martial. 793. Granted against probating estate of deceased Indian. 794. Writ of error. § 773. At the common law, to authorize a prohibition to an inferior court for want of jurisdiction, it was necessary that a plea to the jurisdiction should be tendered in that court before imparlance, and that the court should refuse to entertain the plea.i The common law rule is believed to be generally appli- cable in this country, and the writ will not go to a subordinate tribunal in a cause arising out of its jurisdiction until the want of jurisdiction has first been pleaded in the court below and ' Edmundson v. Walker, Carth. 81 ; Bouton ». Hursler, 1 Barn. K. 166; Cox ». St. Albans, 1 Mod. Rep. B. 71. OHAP. XXT.] PRINCIPLES GOVERNING. 559 th,e plea refused, i And where there has been no effort made to obtain relief in the court which it is sought to prohibit, the superior courts will refuse to exercise their jurisdiction by this extraordinary remedy.^ For example, where an injunction has been obtained in direct violation of statute, and without any jurisdiction on the part of the court, prohibition will not be granted to prevent the court from proceeding with the injunc- tion suit where no application has been made to dissolve the injunction. 3 So, where it is sought to prohibit the court below from issuing a writ of mandamus, but it is not shown that any effort has been made to prevent the issuing of the mandamus, either by plea to the jurisdiction or otherwise, the prohibition will be refused.* § 774. As regards the stage of the cause in the court below, at which the application for the writ may be made, some appa- rent conflict of authority may be observed running through the adjudicated cases, as to whether it should be made before or after the decision of the court, although the true test may be readily applied by observing a simple distinction. That distinction is, as to whether the want of jurisdiction in the subordinate court, which is relied upon as the foundation for the writ, is apparent upon the face of the proceedings sought to be prohibited. And while it is undoubtedly true that after a court has proceeded as far as verdict and judgment, or sen- tence, prohibition will not lie tbr a want of jurisdiction not apparent upon the record,^ yet the rule is supported by an ' Ex pa/rte MoMeechen,13 Ark.70 ; jurisdiction, the prohibition may be Ex parte City of Little Rock, 36 issued at any time, either before or Ark. 53. after sentence, because all is a nui- ' Id. lity; it is coram non judice. But ° Ex pa/rU McMeechen, svpra. where it does not appear upon the ' Ex parte City of Little Kock, 26 face of the proceedings, if the de- Ark. 53. fendant below will lie by and suffer ' Com. Dig. Prohibition, D. Jack- that court to go on under an appa- son ». Neale, 1 Lev. part II. 330 ; rent jurisdiction, it would be un- Buggin V. Bennett, Burr. 3037. The reasonable that this party, who rule as stated by Lord Mansfibm) when defendant below had thus in the latter case is this : "If itap- lain by and concealed from the pears upon the face of the proceed- court below a collateral matter, ings that the court below have no should come hither after sentence 560 PROHIBITIOlSr. [PAET II. overwhelming array of authority, that where the defect or failure of jurisdiction is apparent upon the face of the pro- ceedings which it is sought to prohibit, the superior tribunal may interpose the extraordinary aid of a prohibition at any stage of the proceedings below, even after verdict, sentence or judgment.! ^jkJ where the want of jurisdiction is thus apparent upon the record, prohibition will lie after sentence, even though part of the cause of action may have been within the jurisdiction of the inferior tribunal, since it will not be permitted to make a jurisdiction for itself, by coupling mat- ters beyond its control with those upon which it may right- fully adjudicate.^ "Where, however, the inferior court has jurisdiction of the principal point in controversy, though not of certain matters arising collaterally therein, and the defend- ant below pleads to the merits and submits to trial, without relying upon the want of jurisdiction as to such collateral against him there, and suggest that collateral matter as a cause of pro- hibition, and obtain a prohibition upon it, after all this acquiescence in the jurisdiction of the court be- low." ' Smith D. Langley, Ca. Temp. H. 317; Keech v. Potts, 1 Keb. 3; Catchside ®. Ovington, Burr. 1932; Asgill 11. Hunt, 10 Mod. Kep. 439 ; Chickham v. Dickson, 13 Mod. Rep. 133 ; Pool B. Gardner, lb. 206 ; Evans ». Gwyn, 5 Ad. & E. N. S. 844. See, also. Anon. 2 Barn. K. B. 169 ; Blao- quiere i). Hawkins, Doug. 378 ; King D. Broom, 12 Mod. Rep. 134; Anon. Freem. K. B. 78 ; Gardner v. Booth, 2 Salk. 549. But see Parker v. Gierke, 3 Salk. 87. "The rule of granting prohibition before or after sentence is this: That before sen- tence you may have a prohibition upon suggestion of a matter of fact, not appearing upon the face of the proceedings below; but after sen- tence you can not overturn the pro- ceedings by a bare averment of a fact; yet, if there be a want of juris- diction appearing upon the face of the libel, or any part of their pro- ceedings, that is sufficient ground for a prohibition after sentence, whether the cause be in an eccle- siastical court, or in the court of admiralty." Lord Hardwicke, in Smith t/. Langley, Ca. Temp. H. 317. But in Anon. 3 Salk. 388, a distinc- tion was taken between cases pend- ing in the spiritual and admiralty courts, and cases in the inferior courts of law. And it was held that where an action was begun in an inferipr court of law having no jurisdiction of the cause, a prohibi- tion would not lie after sentence, but otherwise if the suit were be- gun in the admiralty or spiritual courts, since their law is diflFereni from the common law. " Evans v. Gwyn, 5 Ad. & E. N. S. 844. CHAP. XXI.J PEINCIPLES GOVERNING. 561 matters until after sentence, he is too late in his application for the aid of a prohibition. * § 775. To warrant the exercise of the jurisdiction, there must in all cases be some court or person to whom the writ may be addressed and against whom it may be enforced. Thus, ' Full u. Hutching, Cowp. 423. The rule, with the reasons in sup- port of it, is very clearly stated in this case by Lord Mansfield as follows : " The case is, that the de- fendant Hutchins libelled in the ecclesiastical court for tithes, Full, the plaintiff, set up a mochos, and several customs, which he alleged to be time immemorial, or at least for forty years past. Witnesses were examined, the cause was heard, and sentence given against the customs. Full has now made application to this court for a prohibition upon the following ground : That his de- fense below was a plea of immemo- rial customs; that an immemorial custom is a matter properly triable at common law, and therefore it appears on the face of the proceed- ings, that this is a case where the spiritual court had no jurisdiction. The question Is, whether this appli- cation, being made after sentence, is not too late? Upon consider- ation of the principles on which this doctrine is founded, and upon looking into the case, we are all of opinion that the defendant in this case comes too late after sentence. Where matters, which are triable at common law, arise incidentally in a cause, and the ecclesiastical court has jurisdiction in the principal point, this court will not grant a prohibition to stay trial. For in- stance, if the construction of an act of parliament comes in ques- tion, or a release be pleaded, they 36 shall not be prohibited, unless the court proceed to try contrary to the principles and course of the com- mon law ; as if they refuse one wit ness, etc. And this is expressly laid down by Lord Hale, in 3 Lev. 64, Sir Wm. Juxon v. Lord Byron. There is another denomination of cases under which the present case comes, where matters are so prop- erly and essentially triable at com- mon law, that if the party comes for a prohibition before sentence, this court will grant it for the sake of the trial. But if the party sub- mit to trial, he is afterwards too late. The distinction in respect of cases where a prohibition does or does not lie after sentence, is this : If it appears on the face of the libel, that the ecclesiastical court has no jurisdiction of the cause, a prohibi- tion shall go ; because there, intere»t reipublicm that they should not en- croach upon the jurisdiction of the temporal courts; and in such case, their sentence is a nullity. There- fore, in the case of Paxton v. Knight, 1 Burr. 314, the court, though against their inclination, granted a prohibi- .tion, because it appeared on the face of the libel that the ecclesiastical court had no jurisdiction. This doctrine and distinction is fully set- tled and established in a case re- ported in 10 Mod. 13, Banister «. Hopton. There, upon a motion after sentence for a prohibition to the spiritual court, upon a question of prescription, the court held, that 562 PROHIBITION. [PAET II. in England, prohibition will not lie against the execution of the sentence of a court martial, after the sentence has been carried into effect by the king, and the court martial has ceased to exist, since there is then no court or person to whom the writ may be addressed, except to the sovereign, who has already executed the sentence.' § 7Y6. The exercise of the jurisdiction is not confined exclusively to restraining proceedings in courts of law, but extends also to proceedings in equity. And where the supreme court of a state is vested by the constitution of the state with power to issue such "remedial original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions," it may grant a prohibition though it were a matter triable at common law, yet if the party sub- mit to trial, it will be too late for a prohibition after sentence. In the margin of that case is cited 2 Salk. 548, which is cited for the true dis- tinction where a prohibition shall or shall not lie after sentence ; and there it is said, that if it appear in the libel or proceedings of the cause, that the cognizance of the cause does not belong to the spiritual >court, a prohibition shall go even after sentence. It shall go where they have no cognizance of the cause, not where there is only a de- fect of trial. There is another case -fully in point to the same distinc- tion ; the name of it is, The Church- wardens of Market Bosworth v. The Sector of Market Bosworth, Hil. 10 Wm. 3. B. R. 1 Lord Raym. 435. The libel, in that case, was founded upon a custom which the defendant denied; and the decree was against the custom : a prohibition was mov- ed for, because custom or no custom, is a matter triable at law ; and this appearing on the libel, the court had no jurisdiction; therefore pro- hibition ought to go, though after sentence. But the whole court held the contrary. And the reason given is this: that the plaintiflFs, having grounded their libel on a custom, which would have been well ground- ed if the custom had not been de- nied, shall not, after the custom is found against them, prohibit the court from executing their sentence. For the design of the motion for a prohibition is only to excuse the plaintiffs from costs. But, say the court, there is no reason why they should not pay them, since it ap- pears they have vexed the defend- ant without cause; and therefore denied the prohibition. The same reason holds here, as in that case. The defendant himself has alleged the custom, and submitted to trial ; therefore, there is no reason now why he should have a prohibition to save himself from the costs. We are all of opinion, that the cause shown against the prohibition should be allowed, and the rule discharged." ' In re Poe, 5 Barn. & Ad. 681. CHAP. XXI.] PRINCIPLES GOVEENIWG. 563 against any subordinate court, whether of general or limited jurisdiction, and whether a court of law or of chancery. ^ And where a court of chancery has exceeded its powers in the appointment of a receiver, prohibition has been granted to restrain it from proceeding under the order of appointment.^ But it will not go to restrain a court of equity while acting within the scope of its jurisdiction. ^ And where such court has full jurisdiction of the case made by the bill, both as regards the subject matter and the parties, and the appoint- ment of a receiver in the cause is clearly within the scope of its legitimate powers, prohibition will not lie.* Nor will the writ be granted against the judge or chancellor of a court of equity to prevent him from entertaining a cause or taking any proceedings therein, in the absence of any allegations connect- ing him actively with the proceedings complained of.^ ^ 777. Prohibition will also lie against justices of the peace and petty courts of limited and special powers, wherever a proper case is presented warranting the exercise of the juris- diction. Thus, where justices of the peace are proceeding without authority of law to abate a supposed nuisance, pro- hibition is the appropriate remedy to stay their action.* And where an inferior court has exceeded its jurisdiction by grant- ing a writ of prohibition against a justice of the peace, it may itself be restrained by prohibition from further proceedings.' So the writ lies to a municipal court of limited statutory juris- diction to restrain it from levying a fine beyond the amount fixed by law as the limit of its jurisdiction. ^ So, too, it lies against such court in behalf of one who has been discharged under the insolvent laws of the state, to prevent the enforce- ment of a fine inciirred before his discharge.' Where, how- ever, the decision of the inferior tribunal is by law final and ^ Ex pa/rte Smith, 23 A.^a. 9i. Ga. 87. 'Id. ' Jackson v. Maxwell, 5 Rand. 636 ' People V. Wayne Circuit Court, ' Zylstra v. Corporation of 11 Micli. 393. Charleston, 1 Bay. 382. * Ex pa/rte Walker, 25 Ala. 81. » Wall v. Court of Wardens, 1 « Ex parte Greene, 29 Ala. 52. Bay, 484 « South Carolina R. rv- ■• -RUs, 40 564 PEOHIBITIOK. [part II. conclusive upon the question decided, prohibition will not go to prevent the enforcement of such decision. Thus, where the mayor of a city is by the charter vested with certain j)owers as a magistrate, and his decision is final as to fines imposed up to a certain amount, he can not be restrained by prohibition from the enforcement of a fine imposed by him within the statiitory limit. i § 778. It is to be observed, with reference to inferior courts, which are limited by law to the decision of controversies where the amount involved falls within a specified sum, as in justice courts and other petty tribunals, that they will not be allowed to manufacture a jurisdiction for themselves by divid- ing a single matter into several suits, so as to bring them within the limits fixed by law, when the whole amount in con- troversy is suiEcient to bring it within the jurisdiction of a higher court. ^ Thus, where a plaintiff brings several distinct actions before a justice of the peace upon promissory notes against one and the same defendant, each of the notes being for an amount within the jurisdiction of the justice, but the aggregate amount being beyond his jurisdiction, prohibition lies to restrain the justice from proceeding, even after judg- ment rendered, but before the money has been paid. Such a case presents a clear defect of jurisdiction, since all the notes constitute but one indebtedness. ^ And the writ will lie as against an inferior or petty court of limited powers to prevent its taking cognizance of an action for an amount beyond its jurisdiction, even though the plaintiff voluntarily reduces his demand to bring the case within the jurisdiction of the'court. The principle upon which the interference is based in such case, is, that where the law has positively excluded the juris- diction beyond a certain maximum amount, no man shall be allowed to create a jurisdiction for himself by changing the real position of the parties to the contract at his own volition.* " Wertheimer v. Mayor of Boon- ' Hutson v. Lowry, 3 Va. Cas. 43. ville, 39 Mo. 354. •> Ramaay v. Court of Wardens, 3 ' Lawrence v. Warbeck, 1 Keb. Bay, 180. But see, contra, People v. 360; Girling u. Aldas, 3 Keb. 617; Marine Court of New York, 36 Hutson V. Lowry, 3 Va. Cas. 43. Barb. 341. OHAP, XXI.] PRINCIPLES GOVERNING. 565 If, however, the jurisdiction of the inferior court be undoubted, prohibition will not go merely because of the inconvenience to which the party may be put by submitting to the proceedings in that court. Thus, it will not be granted to restrain the prosecution of an action before a justice of the peace for an amount within his jurisdiction, upon the ground that the defendant in such action has certain set-oflFs against the plaintiff to an amount which can not be brought within the jurisdiction of the justice, so that defendant can not avail himself of a plea of set-off in that action.' § 779. As regards the parties to the proceeding, less strin- gency is observed than in the case of the extraordinary remedies heretofore considered. The writ being still regarded as a prerogative remedy, it is usually issued in England in the name of the king, and in this country in the name of the state. But while it is irregular to issiie the writ in the name of a private citizen instead of the state, yet if such irregularity in no way affects the merits of the application, the writ will not be set aside where a jurisdiction is usurped without any pre- tense of right. 2 Prohibition may be granted on the applica- tion of either of the parties litigant in the inferior tribunal.^ And it would seem, both upon principle and authority, that no personal interest in the proceedings sought to be prohibited need be shown by the relator or petitioner to warrant the application, and the writ may be granted upon the application of a stranger to the record. The governing principle in such cases is, that where an inferior court proceeds in excess of its lawful jurisdiction, it is chargeable with a contempt of the sovereign, as well as a grievance to the party injured, and the courts are therefore less stringent as to the degree of interest required of the applicant than in cases of mandamus and other extraordinary remedies.* 1 Browne n. Eowe, 10 Tex. 183. 171 ; Trainer «. Porter, 45 Mo. 336. ' Baldwin v. Cooley, 1 Eioh. N. Although the question here dis- S. 256. cussed is not altogether free from ' Clapham «. Wray, 13 Mod. Kep. doubt, the doctrine of the text has 423 ; Com. Dig. Prohibition, E. the clear weight of authority in its * Com. Dig. supra; Wadsworth v. support. Directly opposed to this Queen of Spain, 17 Ad. & E. N. S. doctrine is the case of Queen v. 566 PKOHiBiTioiir. [part ii. § 780. To warrant a court in granting this extraordinary remedy, it should clearly appear that the inferior tribunal is actually proceeding, or about to proceed in some matter over which it possesses no rightful jurisdiction. This may be properly shown by alleging any acts on the part of the court which indicate an intention to proceed, and where such inten- tion is not clearly shown the writ will be denied. And the mere fact that plaintiff's counsel has noticed a motion for hearing before the subordinate court does not show that such tribunal will necessarily entertain the motion, and is not suffi- cient ground for a prohibition, i And since the object of the writ is to prevent an inferior court from proceeding beyond its jurisdiction, where the return to the writ shows a prima fade case of jurisdiction in the court below, the prohibition will not be perpetuated. ^ § 781. The province of the writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but is also extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject matter in controversy, has exceeded its legitimate powers.* And where, after a conviction for felony, the court has at a subsequent term granted a new trial upon the merits, without any legal authority for so doing, an appropriate case is pre- sented for interference by prohibition, even though the original trial and conviction were fully within the jurisdiction of the court.* So the writ has been allowed where the court below Twiss, L. R. 4 Q. B. 407, which de- N. T. 531. See, also, State d. Ridgell, nies the right to interfere on behalf 2 Bailey, 560. of one who is a stranger to the * Quimbo Appo «. The People, 20 record, and not aggrieved by the N. Y. 531. " It is true," says Mr. alleged excess of jurisdiction. In Justice Sbijjen, p. 541, "that the Porster «. Forster, 4 B. & S. 187, the most frequent occasions for the use rule is stated to be, that a stranger of the writ are where a subordinate is entitled to the relief if he shows tribunal assumes to entertain some that he has sustained damage by cause or proceeding over which it the alleged excess of jurisdiction. has no control. But the necessity ' Prignitz ®. Fischer, 4 Minn. 366. for the writ is the same where, in a ^ State «. Judge of Fourth Dis- matter of which such tribunal has trict Court, 20 La. An. 239. jurisdiction, it goes beyond its legi- ' Quimbo Appo ». The People, 20 timate powers, and the authorities CHAP, XXI.] PRINCIPLES GOVERHrilirG. 567 liad grossly transcended the bounds prescribed by law, and had committed an error in a criminal cause, apparent on the face of the record, and involving a question of life and death. Thus, where a court had erroneously convicted a person and passed sentence of death upon him for an offense not capital, the error appearing upon the face of the proceedings, and there being no other means of correcting it, prohibition was show that the writ is equally ap- plicable to such a case. Mr. Jacob, in treating of this writ, after saying that it may issue to inferior courts of every description, whether eccle- siastical, temporal, military, or maritime, whenever they attempt to take cognizance of causes over which tliey have no jurisdiction, adds : ' or if, in handling of matters clearly within their cognizance, tliey transgress the hounds pre- scribed to them by the laws of Eng- land, as where they require two wit nesses to prove the payment of a legacy.' Jac. Law Die. title Prohi- bition. In the case of Darby v. Cosens, 1 Term R. 553, the defend- ant, who was vicar of the parish of Long Burton, had sued Darby in an ecclesiastical court for tithes, that being an action appropriate to the jurisdiction of that court; but the defendant having set up a modus by way of defense, an issue was presented which the ecclesiastical court had no authority to try ; still, as it assumed to proceed with the case, upon application to the court of kings bench a writ of prohibi- tion was issued. The precise objec- tion made here was taken in the case of Leman «. Goulty, 3 Term R. 8, where certain church wardens were cited in the bishops' court to exhibit on oath an account of the moneys received and paid by them. Objections being made to one or two items of the account, the bishop required them to pay a certain amount, and upon their refusing was proceeding still further "with the case when a rule was obtained in the court of kings bench to show cause why a writ of prohibition should not issue; and the counsel, in showing cause, insisted that as the bishops' court had original jurisdiction of the cause, the error should be corrected upon appeal, and was not a ground for a writ of prohibition ; but the court allowed the writ, and Lord Kbnyon, after admitting that for a mere error in giving a judgment which the court had power to render, the writ would not lie, said: 'Now, in this case, with respect to the compelling of a production of the church wardens' accounts, the spiritual court had exclusive jurisdiction; but there their authority ceases, and every- thing which they did afterwards was an excess of jurisdiction for which a prohibition ought to be granted.' These cases prove that the writ lies to prevent the exercise of any unauthorized power, in a cause or proceeding of which the subordinate tribunal has jurisdic- tion, no less than when the entire cause is without its jurisdiction. The broad remedial nature of this writ is shown by the brief state- ment of a case by Fitzherbbrt. In stating the various cases in which 568 PROHIBITION. [PAET II. granted. 1 The rule is otherwise, however, where ample remedy may be had by appeal from the action of the court below. 2 § 782. The legitimate scope and purpose of the remedy being, as we have already seen, to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon other tribunals, it can not properly be extended to oflScers or tribunals whose functions are not strictly judicial.^ And while there are cases where the writ has been granted against ministerial officers entrusted with the collection of taxes, yet the better doctrine, both upon prin- ciple and authority, undoubtedly is that it will not lie as against ministerial officers, such as collectors of taxes, or as against municipal boards of quasi-judicial functions, entrusted with taxing powers, to restrain them from levying or collect- ing taxes.* But where the power of appointment of certain the writ will lie, he says : ' And if a man be sued in the spiritual court, and the judges there will not gran*] unto the defendant the copy of the libel, then ho shall have a prohibition, directed unto them for a surcease,' etc., until they have de- livered the copy of the libel, accord- ing to the statute made Anno 2 H. 5. F. N. B. title Prohibition. This shows that the writ was never gov- erned by any narrow technical rules, but was resorted to as a con- venient mode of exercising a whole- some control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correct- ing the error after it is committed. I have no hesitation, therefore, in holding that this was a proper case for the use of the writ, if the su- preme court was right in the con- clusion to which it arrived at gen- eral term." ' State v. Ridgell, 2 Bailey, 560. ' Stale 1). Nathan, 4 Rich. 513. ' See People «. Supervisors of Queens, 1 Hill, 195 ; Clayton «. Hei- delberg, 17 Miss. 633 ; Greir v. Tay- lor, 4 McCord, 206 ; Board of Com- missioners «. Spitler, 13 Ind. 235. But see, contra, People v. Works, 7 Wend. 486 ; State ». Commissioners of Roads, 1 Mills' Const. Rep. 55 ; Burger v. The State, 1 McMullan, 410. In State v. Commissioners of Roads, the doctrine is maintained that the writ may go to restrain the action of public functionaries en- trusted with powers of a quasi- judicial nature, such as commis- sioners of roads, to prevent them from laying out a particular road. ' People «. Supervisors of Queens, 1 Hill, 195; Clayton v. Heidelberg, 17 Miss. 628. But see, mntra, Peo- ple «. Works, 7 Wend. 486 ; Burger «. The State, 1 McMullan, 410, in both of which cases prohibition was allowed to restrain the oollec. tion of taxes, although in Burger «. CHAP. XXI.] PKIWCIPLES GOVERNING. 569 commissioners to carry into effect a statute authorizing muni- cipal subscriptions in aid of a railway, is vested in the judge of a subordinate court, and the act under which the power is conferred is unconstitutional, it has been held that a superior court might properly interfere by prohibition to prevent the appointment.! § 783. Prohibition will not lie against the governor of a state, to restrain him from granting a commission to a person claiming to be duly elected to a public office. The grounds on which the relief is refused in such a ease are, that the judi- ciary has no power to invade the province of the executive, the three departments of government under our system being distinct and independent, and that prohibition is in no event The State, the exercise of the juris- diction for this purpose is conceded to be witliout the sanction of the English precedents. In People v. Supervisors of Queens, 1- Hill, 195, which was a motion for a prohibi- tion, or other remedy, to prevent the levying of a tax, the court, Bkon- SON, J., say : " The only remaining branch of this case is the motion of the relator for a writ of prohibi- tion to the town collector to stay the levying of the tax. A writ of prohibition does not lie to a minis- terial officer to stay the execution of process in his hands. It is directed to a court in which some action or legal proceeding is pend- ing, and to the party who prosecutes the suit, and commands the one not to hold, and the other not to follow, the plea. It stays both the court and the party from proceeding with the suit. The writ was framed for the purpose of keeping inferior courts within the limits of their own jurisdiction, without encroach- ing upon other tribunals. (3 Inst. 601; F. N. B 94; Vin. Ab. tit. Pro- hibition; and same title in Com. Dig., Bac. Ab. 7th Lond. ed. and Tomlin's Law Diet; 3 Bl. Com. 111. See also Tomlin's Law Diet. tit. Consultation, and F. N. B. 116.) Our statute also shows that the writ issues to a court and prosecuting party, not to a ministerial officer. (2 R. S. 587, §§ 61, 65.) In The People V. Works, 7 Wendell, 486, althonirli tlie motion for a prohibi- ti;)n seems to have been granted, the remarks of the chief justice are in perfect harmony with what has been said in this opinion in relation to the proper office of the writ; and that case must not be understood as having decided anytliing more than that the tax then under considera- tion was illegal. There is not the slightest foundation in the books for saying that a prohibition may issue to a ministerial officer to stay the execution of process in his hands. If the relator has suffered, or is in danger of suffering an in- jury, he is mistaken in supposing that we can grant the relief which he asks. Motion denied." ' Sweet V. Hulbert, 51 Barb. 312. 570 PROHIBITION. [PAET II. a fit remedy to restrain the head of the executive department in the execution of his duties, i § 784. In all cases where the remedy by prohibition is pro- vided by statute, but the statute fails to point out or prescribe the causes for which it may be allowed, reference must be had to the common law to determine whether an appropriate case is presented for the exercise of the jurisdiction.^ And since, at common law, the writ is onlj' granted to restrain a court or parties therein from proceeding with a cause on the ground of a want of jurisdiction, it will not lie, unless expressly author- ized by statute, to prevent a board of county officers from pro- ceeding in a matter pending before them, of which they have original and exclusive jurisdiction. ^ § 785. The power of granting the writ of prohibition is, in many of the states of this country, conferred by constitu- tional or statutory jDrovisions upon the courts of last resort as an original jurisdiction. It is not, however, limited exclu- sively to these courts, and in some of the states the courts of general common law jurisdiction, such as the various circuit or district courts throughout the state, issue tlie writ to courts inferior to them, to prevent the exercise of a jurisdiction properly pertaining to the higher tribunal.* § 786. As regards the jurisdiction of the federal courts by this extraordinary remedy, it is held that the supreme court of the United States may grant the writ to restrain a district court from proceeding by libel against armed vessels of a bel- ligerent power, at the suit of individual citizens to answer for captures and seizures made on the high seas, which have been brought for legal adjudication into the ports of the belligerent power. 3 The writ will not, however, lie from the supreme court of the United States in cases where it possesses no appel- late power, as in criminal cases. And where a circuit court of the United States has convicted a person of a criminal offense, and has sentenced him to death, and the warrant for ' Greir v. Taylor, 4 MoCord, 206. ^ Howard ». Pierce, 38 Mo. 296 ; ' Board of Commissionera v. Spit Reese ®. Lawless, 4 Bibb, .S94. ler, 13 Ind. 235. <■ United States v. Peters, 3 Ball. ' Id. 121. CHAP. XXI. J PRINCIPLES GOVEEWING, 571 his execution is in the hands of the marshal, prohibition will not lie from the supreme court to prevent its execution. In such case, the circuit court has no further control over the warrant and no power to recall it, and the duty of tlie marshal being purely ministerial, and the supreme court having no appellate jurisdiction over the action of the circuit coTirt in the jDremises, no cause is presented which will warrant the granting of a prohibition. ^ § 787. It may be regarded as extremely doubtful whether any power exists in the circuit courts of the United States to issue writs of prohibition to the state courts. And it would seem upon principle to be clear, that if such jurisdiction exists by virtue of the fourteenth section of the judiciary act of 1789,^ it is limited strictly to cases wherein the writ is neces- sary to the exercise of the jurisdiction of the circuit court. Where, therefore, a person has been adjudicated a bankrupt in a district court of the United States, prohibition will not lie from a circuit court, to prevent the state courts from enter- taining actions brought therein by the bankrupt against his partner in respect to the property of the bankrupt, and to pre- vent the state courts from interfering with the jurisdiction of the district court in bankruptcy. The use of the writ for such purposes is not necessary to the exercise of the jurisdiction of the circuit court, even though it has obtained control of the proceedings in bankruptcy by a petition for a review of the adjudication of the district court. ^ § 788. Although the granting or withholding of the writ is, as we have already seen, largely a matter of judicial discre- tion, yet the question of the jurisdiction of the subordinate court presented by the application must be decided by the superior and not by the inferior tribunal, it being the province ' Ex parte Gordon, 1 Black. 503. provided for by statute, -which may '' 1 U. S. Stat. 81. Section 14 of be necessary for the exercise of their the act provides that " all the before- respective jurisdictions and agree- mentioued courts of the United able to the principles and usages of States shall have power to issue law." writs of scire facias, habeas corpus, ^ In re Bininger, 7 Blatch. 159. and all other writs not specially 572 PEOIIIBITIOIJ". [PAilT II. of all superior courts of law to confine subordinate tribunals within their proper bounds. ^ But the writ will not go, when the very question of fact on which it depends is denied, and is the chief point in the litigation yet pending and Undeter- mined in the court below. Thus, where the jurisdiction of the inferior court depends upon the existence or non-existence of a certain judgment, and the question of fact as to whether such judgment was ever obtained is the issue presented in the court below, and the want of jurisdiction is not apparent on the face of the application, prohibition will not go, since if granted it would virtually be a trial of the case by the superior court upon its merits and before appeal.^ § 789. Prohibition is the appropriate remedy, pending an appeal from an inferior to a superior court, to prevent the former from exceeding its jurisdiction by attempting to execute the judgment appealed from.^ Thus, it lies to restrain the execution of an order of seizure and sale of property, under a judgment from which an appeal has been taken, which is still undetermined in the appellate court.* And where an inferior tribunal of a quasi-judicial nature, whose decision has been appealed to the court of last resort of the state and there reversed, still attempts to enforce its own judgment, regardless of the decision upon the appeal, an appropriate case is presented for the aid of a prohibition. ^ § 790. Where a court of general jurisdiction, as a circuit court of a state, has exceeded its powers by granting a writ of error and sujper&edeas to a county court, on the application of persons not parties to the judgment in the county court, and not afi'ected thereby, prohibition is the proper remedy." But the writ will not go to prevent the enforcement of the ' Gray ti. Court of Magistrates, 3 598. McCord, 175. * State «. Judge of Fourth District " State «. Judge of Fourtli Judicial Court, supra. District, 10 Rob. La. 169. See Sue- " Harriman ®. County Commis- cession of Whipple, 3 La. An. 336. sioners, 53 Me. 83. ^ State i>. Judge of Fourth District ' Supervisors of Culpepper i>. Gor- Court, 31 La. An. 735 ; State v. Judge rell, 30 Grat. 484. of Eighth District Court, 34 La. An. CHAP. XXI.J PEIIirCIPLES GOVEENISTG. 573 judgment of an inferior court because of its refusal to receive legal evidence upon the trial of the cause. ^ § 791. Prohibition lies to prevent an inferior court from improperly interfering with or attempting to control the records and seal of the superior court, and to protect the superior tribunal in the possession and control of its own records. And where a subordinate court is endeavoring, by its writ of injunction, to exercise control over the books, records and seal of the superior or appellate tribunal, such proceeding is regarded as an unwarranted encroachment upon the jurisdiction of the higher court, which may be prevented by the writ of prohibition. ^ § 793. Where the writ is sought to restrain a court martial from proceeding with the trial of the relator upon certain charges and specifications preferred against him, and the application is made in the first instance, and before the court martial has proceeded to the consideration of any other ques- tion than that of its own jurisdiction, unless it is apparent upon the face of the proceedings that such court has no juris- diction over any portion of the subject matter of the charges preferred, prohibition will not issue. ^ Nor will it go to restrain the collection of fines imposed by a court martial under the militia laws of the state, where the persons and sub- ject-matter were properly within the jurisdiction of such court.* § 793. Tlie writ lies to prevent a probate court of a state from exercising jurisdiction over the estate of a deceased Indian, who had resided upon an Indian reservation within the borders of the state, whose land retains its original charac- ter as a reservation, since the jurisdiction of the state for civil purposes does not attach over such lands, the Indian being regarded as a member of an independent nationality, over which the laws of the state have no force beyond the territo- rial limits of the state. ^ ■ State ea; r«Z. Leonard, 3 Rich. 111. * State v. Edwards, 1 McMullan, » Thomas -o. Mead, 36 Mo. 233. 215. ' Washburn v. Phillips, 2 Mete. ' United States v. Shanks, 15 Minn. 296. 369. 574 PEOHIBITION. [PAET U. § 794. It was held at an early date by the court of kings bench, that a writ of error would not lie upon the refusal of a prohibition, it not being regarded as a final judgment between the parties, i In this country the question has never been definitely presented, nor is it deemed of any practical importance, since in most of the states the jurisdiction by prohibition is exercised by courts of last resort, whose decis- ions are not subject to review. III. Peactice and Peocedtjbe in Peohibition. § 795. Ancient common law practice. 796. Modern common law practice. 797. Of the declaration in prohibition. 798. The same. 799. Damages and costs. 800. Common law procedure applicable in this country. 801. Statutory changes in procedure in England. 802. When declaration dispensed with. 803. Rule to show cause ; affidavits required. 804. Implicit obedience required; violation punished by attachment for contempt. § 795. The ancient practice at common law, in granting prohibitions upon motion, seems to have been to first issue a rule to show cause why the prohibition should not go ; second, to grant a rule nisi, and third, to make the rule absolute for the prohibition. 2 The respondent was at liberty to sue out a scire facias to show cause why a consultation should not be had of all the judges, and the scire facias recited the sug- gestion and also the prohibition issued thereon, to the damage of the party.* This practice, however, gradually fell into disuse, and in its place the court, on granting a prohibition, would bind the plaintlflF or relator in a recognizance, to pros- ecute an attachment against the respondent for a supposed ' Bishop of St. David v. Lucy, Ld. ' Anon. 3 Salk. 289. And see Raym. 539. Stadford «. Neale, Stra. 482. ' 1 Keb. 281. CHAP. XXI.] PEACTICE AND PEOOEDUKE. 575 contempt in proceeding in the action below after prohibition granted, 'and would also require him to declare in prohibi- tion. 1 § 796. In the absence of statutory regulations as to the pleadings and procedure in prohibition, the modern common law practice is still applicable. According to that practice, the party aggrieved by the usurpation of jurisdiction in the court below applied to a superior court empowered to issue the writ, setting forth in a suggestion, petition or information the nature and cause of his complaint. If the facts relied upon as the foundation for the relief were not presented by the record of the inferior court, the relator was obliged to ver- ify his suggestion by affidavit, and to set forth all the material tacts on which he relied. The court thereupon issued a rule to show cause upon a given day why the writ should not issue. The eifect of this rule, when served upon the subordinate 20urt, was to stay all proceedings therein in the action prohib- ited, and upon return the court would make tlie rule absolute, or would discharge it as seemed proper. If tlie rule were made absolute, or if the court deemed the point involved too aice or doubtful to be decided upon motion, the relator was required to declare in prohibition, when the usual pleadings it common law followed, and the case might then be decided upon demurrer or plea to the merits. If, upon demurrer and argument, or after trial upon the merits, the matter suggested appeared to be sufficient ground for prohibition in point of law, judgment with nominal damages was rendered for the relator, and the court below was prohibited from any further proceeding. If, upon the other hand, no sufficient ground appeared for prohibiting the inferior court, judgment was ren- dered against the relator, and a writ of consultation was there- upon awarded, which, if granted upon the merits, was a per- petual bar to another prohibition upon the same suggestion. This was called a writ of consultation because, upon consulta- tion had, the judges found the prohibition to be ill-founded, ind they therefore returned the cause to its original jurisdic- ' Anon. 3 Salk. 389. 576 PEOHIBITIOlSr. [part II. tion, to be there determined, and directed the inferior court to proceed therein, the prohibition to the contrary notwithstand- ing. ^ § 797. In addition to the reasons above shown for requiring the plaintiff or relator to declare in prohibition, this practice was also resorted to where it was desired to submit the ques- tions involved to a jury. For whatever purpose the declara- tion was required, it was regarded as the commencement of an action, which was, by a legal fiction, founded upon an attach ment against the respondent for a supposed contempt of court, in proceeding with his action below after being served with a writ of prohibition. The object of this fictitious proceeding, was merely to try with greater certainty whether the inferior court ought to proceed with tlie action, and not whether it had actually proceeded, that allegation being merely formal and the contempt being purely a fiction. The respondent was not, in fact, served with any prohibition, the writ ordinarily having not yet issued, and therefore he had committed no contempt, this matter being merely alleged for form's sake, and to entitle the party to demand damages by giving the action the requis- ites of an ordinary suit at law.^ This fiction seems to have been derived from the ancient practice in prohibition, since it is said that formerly the courts of common law would not grant the writ, unless the party were in contempt for proceed- ing after service of an original writ of prohibition out of chancery, and an alias and plv/ries directed to him. In that case, an attachment for prohibition issued against him, return- able in the superior courts of law, on which the party suing out the prohibition might declare to recover the damages which he had sustained, whence, it is supposed, the modern declaration had its origin.^ The contempt alleged in the ' Ex pa/rte Williams, 4 Ark. 537 ; note ; Bishop of Winchester's case, Bishop of Winchester's case, 1 1 Coke Rep. edition of 1826, p. 535, Coke Rep., edition of 1836, p. 535, note; Ex varte Williams, 4 Ark note ; Croucher v. Collins, 1 Saund. 537. 136, note; 3 Black. Com. 113; Com. "Bishop of Winchester's case, Dig. Prohibition, I. and K. note, supra; Croucher «. Collins, ' Stadford v. Neale, 8tra. 482 ; note, supra. Croucher v. Collins, 1 Saund. 136, OHAP. XXI.] PRACTICE AND PROCEDURE. 577 declaration being merely formal, no verdict was given upon that point. 1 § 798. The direction to declare being regarded as in favor of the respondent, he might afterwards submit and refuse the declaration, and the court would then stay proceedings upon his application.* But where the court was clearly satisfied that sufficient ground for a prohibition was shown, the respond- ent had a right to put the relator to declare, to the end that his jurisdiction might not be taken away from him in a sum- mary manner, where no writ of error lay to redress the griev- ance. ^ In cases where the matter involved was doubtful to the court, either upon questions of law or of fact, leave would be granted to declare in prohibition, in order that the ques- tions at issue might be properly determined.* And where the court was inclined to grant the prohibition, the respond- ent was regarded as being entitled to put the relator to his declaration, almost as a matter of right, although the relator had no right to declare when the court was averse to granting the writ.^ § 799. The declaration being to a considerable extent regarded as in the nature of an issue for the information of the court, upon a verdict for the relator or plaintiff on an issue joined thereon, only nominal damages were allowed. In case of judgment by default, the relator obtaining damages upon a writ of inquiry for the contempt in proceeding after prohibition was allowed costs from the time the rule was made absolute. If he obtained a verdict after plea pleaded, or after joinder in demurrer, he was allowed his costs from the time of the suggestion or original motion for the prohibition. Costs were also awarded against the respondent where he had insisted upon a declaration, and afterwards pleaded a frivolous plea, but by waiving his right to a declaration he might have the proceedings stayed without costs. If the relator was non- ' Stadford v. Neale, Stra. 482; Bx * Id. pmte Williams, 4 Ark. 537. " Bishop of Winchester's case, 1 ' Gegge 11. Jones, Stra. 1149. Coke Rep. edition of 1826, p. 585, ' St. John's College e. Todington, note. Burr. 198. 37 578 PROHIBITION. [part II. suited, or if he discontinued, or if verdict went against him, the respondent was entitled to costs, though not if he suc- ceeded upon demurrer, such case not being provided for by the statutes regulating costs in prohibition.! § 800. Such, in brief, seems to have been the common law method of procedure, where the aid of this extraoi'dinary remedy was invoked to restrain the nsurpations of inferior courts. Cumbrous and dilatory as it necessarily was, it yet aimed at the preservation of the rights of all parties concerned, and was specially designed for the two-fold purpose of guard- ing the rights of the party restrained, and of informing the superior court of all questions of law and of fact necessary to determine whether sufficient cause was presented for the exercise of its extraordinary jurisdiction. Unless otherwise regulated by statutes and codes of procedure, the common law practice as here delineated is believed to be still applicable in this country, and it has been expressly recognized by the decisions in several of the states. ^ ' Bishop of "Winchester's case, note, supra, and statutes there cited. ' See JUx parte Williams, 4 Ark. 537, for an exhaustive resume of the common law procedure upon writs of prohibition, as well as approved forms for the suggestion, declara- tion, plea, demurrer, pleas for con- sultation, judgment by default, writ of prohibition, and writ of consul- tation. See also for forms and pre- cedents of the various pleadings in prohibition known to the common law. Bishop of Winchester's case, 1 Coke Rep., edition of 1836, p. 535 ; Crouoher ii. Collins, 1 Saund. 136; Dolby i>. Remington, 9 Ad. & E. N. S. 179; Duke of Rutland v. Bag- shaw, 14 Ad. & E. N. S. 869 ; 6 Went worth's Pleadings, 242 , et seg. The common law procedure has been recognized and declarations in pro- hibition have been required in the following American cases : State v. Commissioners of Roads, 1 Mills' Const. Rep. 55; State i>. Hudnal, 3 N. &M. 419; S'a; parte Richardson, Harp. 308; M'Kenna v. Commis- sioners of Roads, lb. 381 ; Johnson V. Basquere, 1 Spear, 329 ; Johnson v. Boon, lb. 268 ; Warwick u. Mayo, 15 Grat. 528. In .E^a; parte Williams, 4 Ark. 537, the court, Dickinson, J., after reviewing the common law doctrine and mode of proceeding, saj', p. 545 : " As we have no statute upon the subject, the common law, with all its incidents, is of course, as far as applicable, in force here, and it only becomes necessary so to mould the remedy as to render it available under our system of juris- prudence, preserving as far as prac- ticable all its common law attri- butes. We understand, then, that a party wishing to avail himself of this writ in our courts must, if the facts are not presented by the record CHAP. XXI.] PRACTICE AND PROCEDUEE. 579 § 801. The more serious defects in the common law method of procedure on applications for prohibition, were remedied in England by an act of parliament, 1 Geo. TV., enacted in 1831. This statute, after reciting that the filing of a suggestion of record, on applications for the writ, was productive of unneces- sary expense, and that the allegation of contempt in the declaration was an unnecessary form, declares that it shall not be necessary to file a suggestion on any application for a writ of prohibition, and that the application may be made on afiidavits only. It also provides that in case the party apply- ing shall be directed to declare in prohibition, before the writ issues, his declaration shall be expressed to be on his behalf only, and not on behalf of himself and the crown, and that it shall set forth in a concise manner so much only of the pro- ceedings in the court below as may be necessary to show the ground of the application, without alleging the delivery of a writ, or any contempt, and shall conclude by praying that a writ of prohibition may issue. To this declaration a demurrer may be interposed, or such matters may be pleaded by way of traverse or otherwise, as may be necessary to show that the writ -should not issue, concluding with a prayer that the writ of the inferior court, make the ing the writ. If the defendant, upon proper suggestion to the inferior the suggestion being presented, ad- tribuntil, setting forth all the mate- mits the facts, the rule will go and rial facts on which he relies, with the writ issue. But if he insists the proper allegations, and if the upon a declaration, the case then facts do not appear on the record, takes its ordinary course and must verify the truth of them by affidavit, be decided upon demurrer, or plea Upon the presentation of the sug- to the merits, and the wi-it be gestion, a rule should b6 entered granted or the cause remanded to upon the opposite party, requiring its original jurisdiction, to be there him to show cause upon a given proceeded in and determined. As day, in court, why the writ should it is a qui tarn action, under our not issue; which rule, when so statute a bond for costs must be entered, and served upon the in- filed before or upon the filing of ferior court and the party, shall stay the declaration, which is the com- all further proceedings in the case; mencement of the action." See and the court will then, in their also as to the practice in granting discretion, make it absolute or dis- the wi'it. South Carolina Society v. charge it, and if the former, direct Gurney, 3 Rich. S. C. N. 8. 51. the party to declare, without issu- 580 PEOHIBITION". [PAET II. may not issue. Judgment shall thereupon be given that the writ do or do not issue, and the party in whose favor judgment is given, whether on nonsuit, verdict, demurrer, or otherwise, is entitled to costs and judgment for the same. In case of verdict for the plaintiff in the declaration, it shall be lawful for the jury to assess damages, for which judgment shall also be given, but such assessment is not necessary to carry costs, i § 802. Wliile the common law procedure is still recognized and enforced in some of the states, and the writ will not ordi- narily be granted in such states without first requiring the relator to declare in prohibition, if. the opposite party insists upon a declaration, yet the reasons for requiring this course seem to be more especially applicable to cases of prohibition arising in courts of general jurisdiction, and not of last resort And where the proceedings for the writ are instituted in the highest judicial tribunal of a state, as a part of its original jurisdiction, there seems to be less necessity for a declaration, and it may be dispensed with where the court is satisfied that the substantial merits of the controversy are fully presented by the petition and answer. ^ § 803. In no event should the writ be granted without first issuing a rule to show cause, in order that the respondent may be apprised of the proceeding and its object, and if it clearly appears to the satisfaction of the court that there is no ground for the writ, the rule to show cause will not issue.* Nor will the writ be granted to stay the proceedings of a sub ordinate court upon a mere suggestion of its want of jurisdic tion, without aflidavits or record evidence of the fact, and where the matters relied upon in support of the application are not apparent upon the face of the proceedings, but are collateral and dehors the record, they should in all cases be verified by affidavit.* Upon the return to the rule to show " 1 Geo. IV. ch. xxi, 71 English as to practice in granting the writ, Statutes at Large, 104. South Carolina Society ®. Qurney, 3 ' Supervisors of Culpepper «. Qor- Rich. S. C. N. S. 51. rell, 20 Grat. 484. * Caton ®. Burton, Cowp. 330 ; " Mayo V. James, 13 Grat. 17 ; Ex Buggin v. Bennett, Burr. 2037 ; Bt pwrte Tucker, 25 Ark. 567. And see pm-te Williams, 4 Ark. 537. CHAP. XXI.] PBAOTIOE AND PROOEDXTEE. 581 cause, the rule is made absolute, or is discharged, as it may seem proper to the court. ^ § 804. Implicit obedience to the mandate of the prohibi- bition is exacted in all cases, it being a high prerogative writ and issued from a superior to an inferior jurisdiction. The appropriate process for disobeying or unlawfully interfering with the writ is by attachment for contempt of court, to be enforced, if necessary, by fine and imprisonment. ^ And the courts are inclined to a liberal allowance of amendments to the attachment proceedings, such amendments being regarded as resting entirely within their discretion.* ' Mayo «. James, 12 Grat. 17. Black. Com. 113, 113; Com. Dig. ' Howard ». Pierce, 38 Mo. 396 ; Prohibition, I. State V. Hungerford, 8 Wis. 345 ; 3 ' State v. Hungerford, supra. APPENDIX. APPENDIX A. STATUTE OF ANNE. (9 Aiw. Ch. 20, A. D. 1711.) An act for rendering the proceedings upon writs of mandamus and informations in the nature of a quo warranto more speedy and effectual; and for the more easy trying and determining the rights of offices and franchises in corpora- tions and boroughs. I. Whereas divers persons have of late illegally intruded themselves into, and have taken upon themselves to execute the offices of mayors, bailiffs, portreeves and other offices, within cities, towns corporate, boroughs and places, within that part of Great Britain called England and Wales; and where such offices were annual offices, it hath been found very difficult, if not impracticable, by the laws now in being, to bring to a trial and determination the right of such persons to the said offices within the compass of the year; and where such offices were not annual offices, it hath been found difficult to try and determine the right of such persons to such offices, before they have done divers acts in their said offices, prejudi- cial to the peace, order and good government within such cities, towns corporate, boroughs and places, wherein they have respectively acted; and whereas divers persons, who had a right to such offices, or to be burgesses or freemen of such cities, towns corporate, boroughs or places, have either been illegally turned out of the same, or have been refused to be admitted thereto, having in many of the said cases no other remedy to procure themselves to be respectively admitted or restored to their said offices or franchises of being burgesses or freemen, than by writs of mandamus, the proceedings on which are very dilatory and expensive, whereby great mischiefs (585) 586 APPENDIX. have already ensued, and more are likely to ensue, if not timely prevented; for remedy whereof be it enacted by the queen's most excellent . majesty, by and vfith the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the iirst day of Trinity term, in the year of our Lord one thousand seven hundred and eleven, where any writ of mandamus shall issue out of the court of queens bench, the courts of sessions of counties palatine, or out of any the courts of grand sessions in Wales, in any of the eases aforesaid, such person or persons, who by the laws of this realm are required to make a return to such writ of mandamus, shall make his or their return to the first writ of mandamus. II. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term, as often as in any of the cases aforesaid, any writ of mandau:ius shall issue out of any of the said courts, and a return shall be made thereunto, it shall and may be lawful to and for the person or persons suing or prosecuting such writ of mandamus, to plead to, or traverse all or any the material facts contained within the said return; to which the person or persons making such return shall replj^, take issue, or demur; and such further pro- ceedings, and in such manner shall be had therein, for the determination thereof, as might have been had if the person or persons suing such writ had brought his or their action on the case for a false return; and if any issue shall be joined on such proceedings, the person or persons suing such writ shall and may try the same in such place as an issue joined in such action on the case should or might have been tried; and in case a verdict shall be found for the person or persons suing such writ, or judgment given for him or them upon a demur- rer, or by nil dicit, or for want of a replication or other pleading, he or they shall recover his or their damages and costs in such manner as he or they might have done in such action on the case as aforesaid; such costs and damages to be levied by capias ad satisfaciendum, fieri facias, »«« Jokisdiction.) when may grant mandamus , 37, 253, 581 writ granted by, only in aid of appellate jurisdiction . 185, 582 may grant writ to compel signing bill of exceptions . 300, 358 APPOINTMENT, to office, mandamus refused for 54, 326 distinction between appointment and restoration 69 APPRAISERS, for exempted property, mandamus to sherifl for 133 ASSESSMENTS. (Bee Taxes.) ASSESSORS, of town, affidavit of as to railway aid bonds 47 of city, writ refused for admission to office 51 of taxes, compelled to assess lands liable to taxation ... 87 mandamus granted for ministerial duties of . . . 139 improper assessment of bank stock by 140 ATTACHMENT, reinstatement of by mandamus in Alabama . - 186 for contempt, the usual remedy for violating writ .... 565 practice in , . . . 565 not granted where spirit of writ complied with 566 nor where officer has acted in good faith . . 566 PAKT riEST. 607 SZOTIOH. ATTACHMENT— CojiWn^f?. effect of willingness to comply with writ . . 566 irregularities in granting writ, no objection to 568 when refused against judge 569 when granted against corporation, though not notified of writ 570 proceedings in, when discharged 571 objections to peremptory writ may be urged . 571 granted for failure to make return 573 against municipal officers 573, 574 should be directed to all persons guilty of dis- obedience 574 practice in 576 rule to show cause, when dispensed with 576 ATTOBNEYS, mandamus concerning 316-224 mandamus to restore, conflict of authority 216 limitations upon 217 when granted 218 actual amotion necessary 319 jurisdiction illustrated 330 doctrine in Alabama • . 221 requisites of affidavit 321 distinction between office of, and mere employment . . . 233 admission of to practice, not controlled by mandamus . . 233 appointment of by mandamus, to defend a non compos . . . 334 substitution of, mandamus for 372 ATTORNEY GENERAL, mandamus against, when refused 45 AUDITING OFFICERS, mandamus to 100-117 ministerial duties of, mandamus granted 101 discretionary powers of, mandamus refused 103 compelled to draw warrant for amount due 104 for salaries 105 writ refused to compel auditing accounts of public officer . 109 of municipal corporations 338-367 form of mandamus to 535 AUDITOR OF COUNTY, when writ refused against for drawing warrant 351 when writ allowed 353 writ refused against, where contract ultra mres 354 not compelled to pay out of funds not held officially . . . 359 AUDITOR GENERAL, of state, writ refused as to issuing tax deeds 47 writ granted to reject taxes on exempted lands . . 139 608 INDEX. Seotioh. AUDITOR OF STATE, compelled to issue bank notes 86 when writ refused against, for auditing salary 103 compelled to draw warrant for demand due 104 mandamus against, to draw warrant for materials furnished 106 to draw warrant for salary of incumbent de facto 108 to draw warrant, where payment made to wrong person 110 writ refused where payment not authorized by law 111 effect of resignation of 441 B. BAIL, discharge of, writ refused 170 BANK, may have mandamus to state auditor for issue of bank notes 86 allowed writ against governor for issuing of proclamation . 119 stock of, improper assessment corrected by mandamus . . . 140 payment of tax from dividends, writ granted 142 subscription to stock of, opening books 379 books of, mandamus to allow inspection 308 of England, mandamus refused to 309 cashier of, writ directed to for custody of books 311 BANK NOTES. {See Bank.) BARRISTERAT-LAW, mandamus refused for admission of 333 BIDDER. {See Contkacts, Public Wokks.) BILLS OF EXCEPTIONS, mandamus to compel signing and sealing of ... . 199-315 jurisdiction over, originally in chancery 199 now exercised by courts of law .... 800 when mandamus granted for 301 truth of, to be determined by court below ....... 203 after one signed, writ refused for another 203,203 amendment of, when writ refused for 203 mandamus for signing, barred by laches 304 ignorance of contents of, a bar to the writ 205 signing of, only compelled at hands of judge who tried cause 205 absolute refusal to sign, necessary to mandamus 206 signing of, by referee, what necessary 307 effect of answer denying jurisdiction by mandamus over . . 208 Including evidence in 209 instructions to jury, excluded from 209 mandamus to sign, requisites of return to 210 not barred because of remedy by indictment or impeachment 210 PART FIRST. 609 Section. BILLS OF EXCEPTIONS— O'ore«8«.«ed. subsequent changes in by judge, not corrected by mandamus 311 unknown in chancery causes, lience writ refused . . . 313 jurisdiction by mandamus over, extends only to ooui'ts of record .... 318 practice in mandamus for signing of 314 jurisdiction over, extended to quasi-judicial tribunals . . 315 rule to show cause 505 mandamus to sign, violation of . 569 BOAED OF REGISTRATION, mandamus against, refused 44 when compelled to register voter . 66 BOARD OF SUPERVISORS. {See Municipal Cobpoeations, Sdpbb- VISORS, Board of.) BOND. [See Municipal Aid Bonds, Railkoabs, State Bonds, United States.; official, action on no bar to mandamus . 35 approval of, madamus refused 46,164,336 receiving of, writ granted 81 approval of, by court, mandamus for 231 by clerk of court, writ refused 238 of clerk of court, remedy on a bar to mandamus 338 on appeal, mandamus to substitute 363 BOOKS, of officer, mandamus lies for custody of 73 illustrations of mandamus for custody of ... . 74 writ refused for, where object is to test title to office 77 mandamus for, usually granted against former incumbent 78 not granted against private person 78 of insurance company, mandamus for inspection of by state officers 277 opening of for subscription to stock of bank 379 of private corporation, subject to mandamus 306 production of at meeting 307 mandamus to keep at principal office refused . 307 Inspection of by stockholder, the writ allowed . 308 not allowed to gratify curiosity 310 demand necessary ... . 310 custodian of, writ directed to . 311 of corporation. Inspection of by judgment creditor .... 312 transfer of stock on, mandamus refused . . 318 departure from the rule 314 entering probate of will of shareholder on . 314 of municipal corporation, mandamus for custody and deliv- ery of 839 39 610 INDEX. Section. BOOKS— Oontinued. writ granted for inspection of 330 of registry of elections, writ granted to deposit 381 BOUNTIES, to volunteers, mandamus to levy tax 373 BKIBERY, not considered on mandamus to canvassers of elections . . 56 BRIDGE, mandamus to compel building of, by county court . 887 by railway 319 by bridge and canal com- pany 319 repairing of by turnpike, wben writ refused 331, 435 levying tax for construction of, when writ refused .... 371 duty of municipal corporation, the general rule 413 repairing of, by municipal corporation, writ granted . . . 413 maintaining of, degree of interest required of relator . . 416, 433 discretion as to, not subject to mandamus .... . 418, 419 BUILDINGS. {See Public Buildings.) c. CABINET OFFICERS, mandamus to, when granted 137 when refused 128 postmaster general, mandamus to 137 secretary of the treasury, writ refused 139 secretary of the navy, writ refused 130 CANAL, duty of company to construct bridge, writ granted .... 319 CANVASSERS OF ELECTIONS, mandamus to, not always conclusive of right 11 writ granted to 55-64 general rule authorizing mandamus to 56 mandamus to, for election of governor 56 judicial functions of, not subject to control by mandamus . 57 mandamus to, refused where they have already acted ... 57 decision of, conclusive 57 mandamus to, not granted before time to act 59 authority to strike voter from list 404 mandamus to, degree of interest requisite 438, 436 violation of mandamus, attachment 574 CERTIFICATES OF ELECTION, issuing of, compelled by mandamus 55-64 general rule as to 60 PART FIRST. 611 Suction. CERTIFICATES OP ELECTION— Oore*mt«ed. mandamus to compel, not conclusive as to right .... 61 writ granted for, though office be already filled 63 granting of one, effect of as to subsequeat mandamus . 63, 63 writ granted for, regardless of general functions of officer . 63 mandamus for, refused where term is about to expire 64 refused where no actual vacancy 64 . 64 75 . 403 . 406 refused to applicant not duly elected . possession of, ground for mandamus to deliver records granting of by common council, when writ refused . . affixing seal of municipal corporation to CHANCERY. (yS«e Equity.) CHURCH, minister of, mandamus refused for restoration 71 mandamus to admit minister ...... . . . . 383 pew in, mandamus refused for possession of 383 mandamus to restore minjister to 397 membership in, mandamus to restore to 298 eft'ect of subsequent disqualification of minister .... 571 CHURCH WARDEN, election of, mandamus refused ... . . . 386 CITT. (See Common Council, Municipal Corporation.) CIVIL REMEDY, mandamus considered as a . 8, 430 CLAIMS. (See Auditing Officers, Municipal Corporations.) CLERKS OF COURT, approval of bond by, mandamus refused . . . . 46, 238 compelled to issue certificates of election . ^ 63 ministerial duties of, mandamus lies to set in motion . . 81 compelled to receive bond and administer oath of office . . 81 quasi-judicial powers of, not subject to mandamus . . 81 when compelled to issue execution 83, 338 compelled to Issue writs, when .... 83 compelled to transmit transcript of record 83 making transcript of record by, when writ refused . . 184 bond of, court compelled to approve 231 COLLECTORS OF TAXES, (See Taxes, Taxing Officers.) mandamus to appoint, refused 97 delinquent, mandamus to 143 mandamus to, refused after expiration of term 144 COLLEGES, officers in, writ refused when 380 fellowship in, expulsion from 380, 396 seal of, mandamus to affix 381 COMMANDER-IN-CHIEF. (See Govebnor of State.) 612 lE^DEX. Sbction. COMMISSION, issuing of, when writ refused 53 mandamus granted for 55, 65 by governor, writ granted for . 119 not a ministerial act, mandamus refused .... 131 prima facie evidence of title 331 COMMISSIONERS IN BANKRUPTCY, compelled to issue warrant to examine bankrupt 265 COMMISSIONER OF LAND OFFICE, mandamus to, when refused . . . . .... 39, 43 COMMISSIONER OF PATENTS, mandamus to, refused where he has acted . , . . 131 COMMON COUNCIL, not compelled to admit assessor, to oflBce . . .... 51 compelled to pass ordinance for creating stock 334 assessment of damages by, for land taken by railway . . 328 levy of tax by, to support public schools 374 compelled to count vote of member 403 discretionary powers as to admission of members . . . 403 compelled to consider nominations 404 improper amotion from, corrected by mandamus 408 compelled to improve streets . . . . 413 compelled to repair streets . . 414 discretion as to payment for street improvements 419 proceedings in opening street, presumed regular 424 compelled to appoint commissioners concerning wharf-heads 427 mandamus to restore to, joinder of parties . . .... 439 mandamus to, parties 442, 443 leturn to mandamus to admit to 476, 477 mandamus to, by whom return made 480 CO:iiMON LAW, rules of generally applicable in U. S 8, 30 disregard of in amotion of officer, ground for mandamus . 68 COMMON LAW PROCEDURE ACT, effect of, on jurisdiction by mandamus 38 has not extended writ to enforcement of private contracts . 28 effect of on practice and procedure 501 COMPTROLLER, mandamus against, when refused 40, 103, 111 when granted 101, 351 CONCILIUM, in lieu of demurrer to return 490 CONSTABLES, mandamus refused to approve bonds of 326 PAET FIBST. 613 Section. CONTEMPT, (See Attachment, Violation.) punishment of witness for, mandamus refused 155 violation of writ constitutes a . . . ... . . 565 attachment for, practice in . . ... . . 565 when refused .... . . 566 to whom directed .... . . rr4 by judged of iiiferior court . ..... 569 f :U\ir(' to ]n"kc i"'iirn '■ >-'s;,itnfPs ii . • . 572 liability for, notwithstanding injunction . . . 575 practice on proceedings in 37() rule to show cause, when dispensed with . 576 CONTINUANCE, granting of, not subject to mandamus ... . ... 168 CONTRACTS, not enforced by mandamus .... . . . 35, 38 for public printing, writ refused . 48 for public works ' 91-94 doctrine in Ohio . . 91 lowest bidder for, not entitled to mandamus . . . . 93 award of, a bar to mandamus to examine other proposals . 93 for public works of state, writ refused 94 for printing laws, mandamus in aid of .... 94 with state for services, no ground for mandamus . . . . 116 by turnpike company to repair bridge, not enforced by man- damus . . 331 for paving streets .... . . . . . 430 CONVEYANCE. (See Deed.) CORPORATE FRANCHISE. (See Amotion, Franchise, Munici- pal CoKPORATioN, Private Corporation.) CORPORATION. {See Amotion, Franchise, Municipal Corpor- ation, Private Corporation.) COSTS, not subject to control by mandamus 159, 183, 193 writ granted for, in conformity with order of appellate court 355 practice as to allowing 518 COUNTY. (See Municipal Corporations.) COUNTY CLERKS, compelled to issue certificates of election 63 compelled to transfer records to new county 76 COUNTY COURTS. (See Courtb.) COUNTY OFFICERS. (See Elections, Municipal Corpora- tions, Officers.) COUNTY SEAT, location of, writ refused 46 election as to, rejection of returns 57 614 INDEX. Section. COUNTY SE^A-T—Oontinued. mandamus to compel holding oflSce at 79 removal of, validity of election not determined by man- damus 79,362 taxation for damages in removal of 376 canvass of election returns, parties 436 COUNTY SURVEYOR, report of, mandamus to compel court to receive 234 COUNTY TREASURER. (See Trbasukek.) ( 'OUKT of chancery. [See Equity.) ( 'OURT OF EQUITY. {See Equity.) COURT MARTIAL, writ refused to compel governor to convene . 122 COURTS, (See Jurisdiction, Justices of the Peace, Uirted States.) mandamus by, in what courts vested ... ... 577-590 mandamus to, jurisdiction well established 147 early remedy against in England 147 performance of duty by, mandamus the proper remedy . . 148 mandamus to, does not confer power 148 judgment of, not prescribed by mandamus 149 compelled to act by mandamus . . 150 questions preliminary to hearing of cause, how far controlled by mandamus . ... 151 mandamus to set in motion, but not to control action . 152 verdict of, not changed by mandamus .... .... 153 not set aside by mandamus 153 new trial, mandamus refused for 153 records of, writ refused to alter 154 not compelled to receive plea 154 reinstating appeal by, mandamus refused 154 construction of statute by, writ refused . 154 granting habeas corpus, writ refused 155 correction of assessments by, not subject to mandamus . 155 judicial discretion of, not subject to or controlled by man- damus 156 over pleadings, not subject to man- damus 157, 193 over appearance in chancery . . . 157 granting feigned issue by, writ refused 157 control of over executions, not subject to mandamus . . . 158 control of over costs, not subject to mandamus . . 159,183,193 defaults, setting aside, writ refused 160 new trials, granting of, writ refused 160 ' former doctrine in New York 161 control of over referees, not subject to mandamus .... 162 PART FIRST. 615 Section. COVRTS—Gontimied. questions of practice in, not controlled by mandamus . . . 163' not compelled to accept bond rejected for insufficiency . . 164 not compelled to accept sureties on official bond . . . . 164 not compelled to hear application for discharge of insolvent debtor .... . . 165 not compelled to give certificate of conformity to bankrupt . 165 granting and dissolving of injunctions by, mandamus for- merly allowed for 166 mandamus not now granted . 166 mandamus to, refused to compel entry of judgment on one of several verdicts 167 refused for entry of j udgment where court has granted new trial . . . .... 167 not compelled to receive evidence 167 granting of continuances by, writ refused 168 stay of proceedings by, writ refused 168 condition imposed by, on setting aside ca.sa 169 decision of, on sufficiency of affidavit to hold to bail . . . 169 not compelled by writ to proceed against justices for mal- feasance . . 170 discharge of bail by, writ refused for 170 suppressing deposition by, writ refused 170 of probate, discretion of not controlled by mandamus . . . 171 refusal to grant administration by, no ground for mandamus 171 change of venue by, writ refused 172, 183 order by, allowing new parties to cause ... .... 173 reference by to master in chancery, writ refused 173 dismissal of actions by, not subject to the writ ... . 173 granting licenses by, mandamus not allowed 174 refusal by of application to open highway 174 nominations by to office, not controlled by mandamus . . . 175 administering official oath, when writ refused for .... 175 mandamus to, refused where other remedy exists at law . . 177 executing judgment by, writ refused 178 giving judgment by, when mandamus refused 178 statutory remedy may bar mandamus against 179 removal of cause from docket, writ refused 180 removal of cause to other court 181 granting administration by, mandamus refused 181 not compelled to proceed with trial after change of venue . 183 clerk of, when refused to make transcript 184 of appellate powers, writ granted by only in aid of appellate jurisdiction 185 mandamus to in Alabama, departure from general rule . . 186 writ granted fo reinstate attachment 186 616 INDEX. Sbotiok. COVRTS— Continued. granted to rescind order abating suit 186 granted where suit improperly dismissed . . . 186 granted to enforce written agreement 186 granted to restore cross bill . . ... 186 granted to compel order for support of wife pen- dente lite . 186 granted to declare bond for costs insufficient . . 186 mandamus to in Michigan, departure from rule 187 granted to set aside judgment 187 mandamus to, not allowed to take place of appeal or writ of error 188 error In ruling of, no ground for mandamus .... 189 want of remedy by error or appeal, no ground for relief 190 dismissal of appeal by, no ground for mandamus .... 191 not compelled to receive evidence 192 order by, for sale of lands in payment of subscription to railway 194 granting mandamus by, not compelled by mandamus . . 195 mandamus to, not granted where unavailing . . . . 196 report of referees, signing of, writ refused 197 grant of ferry franchise by, writ refused 198 bills of exceptions, mandamus for signing . . . 199-315 jurisdiction formerly in chancery . 199 now exercised by courts of law . 200 when mandamus granted for . . 201 truth of bill to be determined by court . 202 amendment of bill, when writ refused . 203 effect of ignorance of facts in bill . 205 refusal to sign bill, must be absolute 206 effect of denial of jurisdicti(m over . 208 ch&rge of, including in bill .... 209 indictment or impeachment against judge of, no bar to mandamus 210 attorneys, mandamus concerning 216-224 restoration of, limitations upon the jurisdiction 217 when writ allowed 218 219 control over • . . . 220 control over admission of not subject to man- damus 223 mandamus to appoint to defend non compos . . 224 removal of cause from state to federal, mandamus not granted for 225 reasons for refusing the relief 226 powers of federal over state courts . . , 227 surety for removal of cause from state to federal . 228 PART PIKST. 617 Sbotion. COVRTS— Continued. ministerial functions of, mandamus concerning . . . 230-238 general rule stated 230 approval of bond by, mandamus to compel . . . . 231 auditing of claims by 232 duties of, as to erection of public buildings 233 justices of county court compelled to receive proof of deeds and admit to record . . . .... 234 compelled to receive report of county surveyor .... 234 entering of judgment by, -when writ granted for . . . 335, 249 entering judgment on verdict . . 235 signing judgment . . ... 235 entering judgment on report of referee . . . ... 236 control of, over bridges, liigliways and railroads . . . 237 clerlis of, mandamus to issue execution 238 justice courts, mandamus to 239-245 allowance of appeals by, mandamus for 246, 248 reinstating appeals by, writ refused 247 dismissing appeals by, writ refused ... . 247 receiving verdict by, writ granted 249 compelled to proceed with trial of cause 250, 251 appeal from damages for land taken by railway 250 refusal to try cause for want of jurisdiction 252 of appellate powers, mandamus from 253 payment of money by, writ refused for 254 levying school tax by, writ refused where court has acted . 254 inferior court compelled to proceed according to mandate of superior court .... .... . . ... 255 hearing motion by, writ granted for 256 action by, a bar to mandamus for same matter 257 mandamus as between federal courts 258 executing decree by officer of subordinate court . ... 259 effect of litigation in another court . 260 mandamus to strilie words from decree refused 261 terms of, mandamus granted to compel holding at proper time and place 264 hearing evidence by on habeas corpus, writ granted for . . 266 compelled to pay damages for land taken for highway . . 267 acting under special commission, writ refused on expira- tion of 268 laches a bar to relief by mandamus against 269 not compelled to dismiss cause in pursuance of stipulation . 270 striking cause from docket of, writ refused 270 dismissal of cause by, in pursuance of military order . . . 271 when compelled 272 618 INDEX. Section. COVKTS— Continued. compelled to allow substitution of attorney . . .... 272 mandamus to, not made peremptory as to parties not notified 273 mandamus against ofiicers of, relator must show interest . 274 mandamus to, to whom directed 275 county, mandamus to compel assessment to pay subscription to stock . . . .... 387 mandamus to, rule to show cause should be granted . . . 505 form of mandamus to . . . .... ... 533, 534 violation of writ by 569 CROSSINGS, duty of railway to construct, enforced by mandamus . . . 319 CULVERTS, construction of by railway, mandamus for 320 CURATE, of chapel, restored by mandamus 71 D. DAMAGES, for lands taken by railway, mandamus for 318, 328 in opening streets and highways, mandamus to pay . . . 421 must be paid before writ granted to open street . . . .422 discontinuing road 426 mandamus barred by remedy at law . . 429 DEATH, of relator, abates proceedings . 437 DECREE, mandamus refused to strike words from . 261 mandamus to execute 263 DEEDS, (See Recorder op Deeds.) execution of by sheriif, writ granted 134 when refused 134 proof of and admitting to record, mandamus granted . . . 234 DEFAULTS, control of courts over, not subject to mandamus 160 DEFINITION, of mandamus 1 as compared with specific performance ] by Blackstonb 3 DEMAND AND REFUSAL, necessity (if, conflict of authority 13 distinction as to, between public and private duties ... 13, 41 PART FIEST. 619 Section. DEMAND AND KEFISSAI,— Continued. demand should be diatinot and untrammeled 13 ■when necessary to private corporations 284 not necessary before mandamus to compel holding muni- cipal election .... .... . . 401 second application on . 515 objection for want of, when taken . 515 DEMURRER, (See Pleadings.) to alternative mandamus, effect of 449 will not lie to information 454 to return, not known at common law 458, 490 not given by statute of Anne 490 concilium in nature of 490 given by statute of Victoria 491 effect of 492 carried back to first defective pleading 493 should be taken in first instance 494 where return good in part and bad in part . . . 495 not allowed with plea to return 495 motion to quash in nature of 524 return in nature of 525 DIRECTORS. (See Private Ooeporationb.) DISCRETION, (See Judicial Discretion.) duties resting in, as distinguished from ministerial duties . 24, 34 general rule as to . . 24, 34 of public officers, not subject to control by mandamus ... 42 in awarding contracts for public works, not controlled by mandamus . . 91-94 of courts, not subject to or controlled by mandamus . . 156-176 of municipal officers, not subject to mandamus . . . .335,418 In allowing claims against municipal ( corporation, not controlled by man- damus 345,846 as to improvements 418 of officers, return to writ 479 DOCKET, of justice of peace, writ refused to change 241 of court, writ refused to strike case from 370 DOCTORS COMMONS, mandamus refused to restore proctor iu 222, 308 DUTY, must be due before mandamus lies 12, 36 distinction between public and private, as to demand and 620 INDEX. Sbction, 'DVTY—Gontmued. refusal 13, 41 must be legally possible 14 of ministerial nature, as compared witli discretionary . . 24, 34 must be incumbent by law 25 must be free from doubt .... 32 continuing, effect of expiration of office 38 of discretionary nature, not subject to mandamus .... 43 distinction between public and private 431 E. ECCLESIASTICAL OFFICERS, when restored by mandamus 71 writ refused in England . 303 ELECTIONS, (See Cantassbes op Elections, Cbktipicates of Election".) to office, not determined by mandamus 49 validity of, not determined by mandamus 53 incidents to, determined by mandamus 55-66 canvass of, writ granted for . . 55-64 for governor, mandamus granted to canvassers 56 contested, not interfered with 57 when mandamus granted for hearing 151 of county officers, writ refused for . . 58 canvass of, not compelled before time to act 59 certificate of, writ granted for 60 not concluded by certificate 61 certificate of, effect of possession de facto 63 for removal of county seat, not determined by mandamus . 79, 263 governor of state not compelled to declare result of ... . 121 court for contesting, writ granted to sign bill of exceptions . 315 of corporate trustees, mandamus for 377 books of registration of, writ granted to deliver .... 331 municipal, mandamus to compel holding 401 of municipal officers, discretion as to determining .... 403 of corporate officer, the return 467 ELECTION RETURNS. (See Canvassbrs op Elections, Cekti- piOATES OP Election, Elections, Votes.) ELECTOR, mandamus to admit, when refused 44 ELEVATOR, delivery of grain at, mandamus to railway 323 EQUALIZATION. (See Taxes, Taxino Opficeks.) EQUITY, possible remedy in, no bar to mandamus 20 PAET PIEST. 621 Section. 'EqVlTY— Continued. existence of remedy not conclusive 20 where court of lias acquired jurisdiction, mandamus not granted ... 21, 35 remedy in, must be effectual to bar mandamus 22 no bar to mandamus to levy tax to pay interest on municipal bonds . 383 no remedy in to levy tax to pay judgment on municipal bonds 393 ERROR. (See Wbit op Ekeoh.) EVIDENCE, mandamus refused to compel court to receive . . . 167, 192 hearing of on habeas corpus, writ granted . 266 EXCEPTIONS. {See Bills of Exceptions.) EXECUTION, mandamus to compel issuing of 82, 180, 238 control of courts over, not subject to writ 158 by justice of the peace, mandamus granted for ... . 242 EXECUTIVE OFFICERS, quasi-judicial functions of, not subject to control by man- damus 48 chief executive of state, title of not determined by mandamus 51 mandamus to 118-134 political functions of, mandamus denied . .... 118 conflict of authority as to ministerial functions .... 118 ministerial duties of, mandamus granted in some states . . 119 issuing proclamation by, writ granted 119 drawing warrant for salary 119 signing patent for public lauds 119 authenticating acts of legislature 119 issuing commissions by 119 drawing warrant by, for payment of funds to railway . . . 119 weight of authority against allowing mandamus to governor 120 acts of, considered only in executive capacity 131 mandamus to governor, refused for issuing commissions to officers 131 military duties of, mandamus refused as to 122 delivery of bonds by governor, for services rendered state . 123 governors of states independent of federal judiciary . . . 134 secretary of state, writ refused to compel certifying act of legislature . . . 135 commissioner of land office, writ granted for issuing land certificates to railway 136 of United States, mandamus allowed as to ministerial duties 127 writ refused as to ordinary official duties of 128 sheriff considered aa, mandamus to J 33, 134 622 INDEX. Sbotiok. EXEMPTION, maLidamus for exempted property levied upon for unpaid taxes .... ... 83 EXTRAOKDINARY BEMEDY, mandamus considered as .... .... ... 5, 15 compared with injunction 6 F. FEDERAL JUDICIARY. (See Couets, Unitbd States.) FERRY, franchise of, mandamus refused to compel court to grant 198 FISCAL OFFICERS, (See Auditing Officers, AtniiTOR of State, MiNisTEKiAL Officers, Municipal Corporations, State Treasurer.) mandamus to 100-117 •writ refused against, if nugatory 117 FORM, of proceedings, criminal nature of 8 of alternative mandamus .... ... ... 529-546 FRANCHISE, corporate, amotion from early cured by mandamus ... 2 of office, amotion from cured by mandamus 67-73 in ferry, mandamus refused to compel court to grant . . 198 in private corporation, amotion from . . .... 291-305 FRAUD, a bar to relief 26 not considered on mandamus to canvassers of elections . . 56 ground for vacating peremptory mandamus 558 FUGITIVES, from justice, mandamus refused to governor for delivery of 124 G. GOVERNOR OF STATE, (See ExBCUTr^E Officers.) title of, not determined by mandamus . 51 election for, mandamus to board of canvassers ... .56 mandamus to ... ... . . 118-124 political functions of, mandamus denied . . . 118 ministerial functions of, conflict of authority . . . 118 mandamus granted in some states . 119 proclamation by, mandamus granted 119 drawing warrant for salary 119 signing patent for public lands 119 authenticating acts of legislature 119 issuiuf; commissions by, writ granted 119 drawing warrant by, for payment of funds to railway ... Hi) PAET FIRST. 623 Section. GOVERNOK OF ^TKI^— Continued. weight of authority against mandamus to 130 mandamus to, principles on which relief is refused .... 120 issuing commissions by, not a ministerial duty for which mandamus will lie . 131 independence of, from judiciary ... . . 130, 181 can not be compelled to declare one elected to ofBce . . . 131 military duties of, mandamus refused as to 132 delivery of bonds by, for services rendered state, writ refused 133 depositing act of legislature with secretary of state, writ refused 133 independent of federal judiciary 134 delivery of fugitives from justice, writ refused 134 GRAIN, delivery of by railway, mandamus allowed 832 H. HABEAS CORPUS, mandamus refused to compel granting of 155 hearing evidence on, mandamus for 266 HARBOR, municipal tax to pay construction of 370 HIGHWAYS, route for, writ refused 44 superintendent of, mandamus refused to 47 applications for opening, refusal of no ground for mandamus 174 surveyors of, mandamus to appoint 337 damages for land taken for, payment compelled by mandamus 267 crossing of by railway, mandamus granted to construct . . 320 surveys of, mandamus granted to record 324 damages in laying out, supervisors required to audit claim . 344 duty of municipal corporation as to, the general rule . . 413 mandamus to open . . 413 granted notwithstanding penalty 415 discretion of municipal officers not subject to mandamus . 418 damages in opening, mandamus for payment of . . 431, 429 must be paid before mandamus to open .... 422 mandamus to open, refused where officers liable in trespass . 434 discontinuance of, no bar to mandamus for damages in opening .... 426 expense in making, apportionment of 438 mandamus to locate, barred by statutory remedy ... . 439 degree of interest requisite for opening 433 damages sustained by, parties can not join 439 discontinuance of, good return 475 624 INDEX. Section. I. IMPEACHMENT, remedy by, no bar to mandamus for signing bill of exceptions 310 IMPROVEMENTS. {See Htohwats, MrwiciPAL Cokpoiiatioks, Private Corpokations, Public Impkovbmbnts, Public Buildings, RAttiiOADS.) INCUMBENT, of office, title not determined by mandamus .... 50 judgment against, when required 53 possession of, no bar to mandamus for certificate of election 62 title of, not determined on mandamus for custody of records 77 of ofiice, de facto, entitled to mandamus for salary . . 108, 113 INDICTMENT, remedy by, no bar to mandamus against public officer . . 18 no bar to mandamus for signing bill of exceptions . 310 INFERIOR COURTS. (See Courts.) INFORMATION. (See Quo Warranto.) INJUNCTION, mandamus compared with . . 5, 6 mandamus not granted in opposition to 38, 259 granting and dissolving of, mandamus formerly allowed for 166 not now allowed .... . 166 violation of, mandamus for attachment 166 dissolution of, mandamus to grant appeal from 346 against payment by town treasurer, a bar to mandamus . . 363 from state court against municipal tax, effect on U. S. courts 895 pendency of bill, not a good return 483 does not justify violation of mandamus 567 from state court, does not justify violation in U. S. court . 575 INNS OF COURT, mandamus to, refused for admission of barrister 333 INSIGNIA, (See Books, Records, Sbal.) of public offices, mandamus lies for custody of 73-79 INSOLVENT DEBTOR, application for discharge of, mandamus refused to compel hearing 165 administering oath to, writ granted 240 INSPECTORS OF ELECTIONS. {See Canvassbks of Elections, Ceetificates of Election, Elections.) INSURANCE COMPANY, records of, inspection by state officers 377 INTEREST, degree of requisite 33 on state bonds, mandamus for payment of 110 new bonds in lieu of 123 PAET FIRST. 625 Sbotion. INTEREST— CoraWraMed. must be shown where mandamus is sought .against oflScer of court 274 on railway aid bonds, mandamus to levy tax in payment of 383-385 on town bonds, mandamus to compel payment of by com- missioners . . . ^. 887 degree of, necessary to mandamus to repair streets .... 416 in mandamus to maintain bridge 416 distinction between public and private duties . . 431 conflict of authority 432 required to maintain bridge or open load . . . 433 effect of statute regulating 436 INTEBIOR. (See Sbcrbtabt of the Interiob.) J. JAIL, mandamus for custody of 76 JOINDER OP PARTIES. (See Paetibs.) JUDGE, (See Bills op Exceptions, Coubts.) discretion of, as to election returns 57 indictment or impeachment of, no bar to mandamus to sign bill of exceptions 210 ministerial functions of, subject to mandamus .... 230-237 successor of, when writ granted to 235 payment of money by, when writ refused 254 duty of in canvassing election returns 262 extra compensation of, mandamus to pay 356 violation of writ by 569 JUDGMENTS, (SeeComTS.) entry of on verdict, mandamus refused 167 when granted 235 mandamus to execute, refused where other remedy exists . 178 rendering of by court, when mandamus refused 178 against county in federal courts, mandamus to enforce . . 229 entry of, when mandamus granted for 235 signing of, mandamus for 235 on report of referee, mandamus to enter 236 against county, mandamus refused to issue execution on . . 238 entry of by justice of peace, mandamus for 241 against private corporation, mandamus refused for enforce- ment of 285 against municipal corporations, mandamus granted to com- pel payment of 365 writ granted to levy tax for payment of . 377 against school district, mandamus to levy tax 378 against municipal corporations, duty to levy tax a continu- ing duty 379 40 626 INDEX. Section. JUDGMENTS— C(TOEx. Section. SUPERVISOKS, BOARD OF, {See Municipal Corporations.) correction of assessments by, writ refused . . . 140, 343 when compelled to refund illegal assessments on U. S. bonds 146 when compelled to audit claim against town 344 discretion of in auditing claims, not controlled by man- damus 345,346 when set in motion to audit claim against county .... 348 compelled to allow claim for services made a charge against county 350 of roads, compelled to pay orders for surveyor's services . . 356 compelled to issue warrants for taxes 375 compelled to repay taxes improperly assessed 375 compelled to pay judgment against county 377 required to levy tax to pay county bonds 388 compelled to subscribe to stock of railway 389 apportionment of county indebtedness by 398 compelled to grade streets 413 SURETY, {See Bond.) for removal of cause from state to federal court 328 SURVEYOR. {See County Surveyor.) SURVEYORS OF HIGHWAYS. {See Hiohways.) SURVEYS, of highway commissioners, mandamus to record ...... 324 SWAMP LANDS, mandamus to issue patents for 84 T. TAXES, {See Municipal Taxation.) assessor of, compelled to assess lands liable 87 collectors of, mandamus to appoint refused 97 mandamus for 137-146 poor rate, writ refused for equalizing j38 assessment and levy of, writ granted jqq lands exempt from, mandamus allowed I39 equalization of, writ granted -iat, when refused I4I against corporations, mandamus in aid of 142 assessment of, writ not granted before time for 144 special, mandamus not granted after time I44 illegal assessments on U. S. bonds, writ granted 145 correction of errors in by court, writ refused I55 levy of, to pay judgment against town in federal courts . . 229 to erect public buildings . . . 233 for school purposes by court, writ refused where ' court has acted 05a PABT FIRST. 653 Section. TAXES— Continued. for teachers' institutes, writ granted to town authorities to-pay 324 illegally assessed by supervisors, writ refused .... 343 levy of to pay claims allowed against county, when writ granted 347 levy of by successors in office 441 TAX CERTIFICATES, purchaser of, when entitled to mandamus 87, 145 TAX DEEDS, issuing of by auditor general, writ refused 47 TAXING OFFICERS, mandamus to 137-146 conflicting doctrine in court of kings bench .... . 138 assessing and levying tax by, writ granted 139 assessors, equalization by 140 adverse decision by on equalization, writ refused . . . 141 collectors, mandamus for delinquency of 143 mandamus to, not granted in anticipation of omission of duty 144 collector, writ refused against after expiration of term . . 144 supervisors, compelled to correct illegal assessments on U. S. securities . 146 TERM OF COURT, mandamus to compel holding of at proper time and place . 264 TERM OP OFFICE, eft'ect of expiration of 37, 38 THREATS, ' of non-performance of duty, no ground for mandamus ... 13 of canvassers of elections, no ground for relief 59 TOWN CLERK, compelled to record surveys of highways 334 mandamus to admit to office 403 mandamus to swear in 403 TITLE, to office, not determined by mandamus 49 reasons for refusing relief as to 50 not determined by mandamus to swear in officer 52 incidents to, may be determined by mandamus .... 55, 66 not determined on mandamus for custody of official record . 77 TRAVERSE. (See Pleadings, Retdbn.) TREASURER, of municipal corporation, writ refused as to money not yet received 36 of county, compelled to assign tax certificates 87, 145 mandamus to pay judgment 229 654 INDEX. Section. TREASURER^ Continued. mandamus to pay alieriff's fees . .... 356 compelled to pay extra compensation of judge 356 when compelled to pay demand originally invalid 357 not compelled to pay out of funds not held in ministerial capacity . ... . 359 not compelled to pay demand not legally chargeable nor audited by proper authority . ... 360 of town, expiration of term of office . . . 302 Injunction against payment by . . . . 302 of city, not compelled to deliver city bonds in payment of warrants . 364 parties to mandamus to . . . . 4o4 of county, when compelled to pay judgment ... . 365 compelled to pay funds to town treasurer . . . 367 of school district, want of certainty in writ . 561 TREASURER OP STATE. {See State Treasukeh.) TREASURY. {See Secbbtakt of TREAsmtY.) TRESPASS, writ refused where parties liable to action of . . . 40 TURNPIKE COMPAJSTY, liability of to repair bridge, mandamus refused ... . 321 assessment by county court in payment of subscription to . 387 mandamus to, parties . 435 u. UNITED STATES, courts of, their jurisdiction by mandamus . . ... 29 district court of, writ refused to postmaster . . 95 jurisdiction by mandamus only ancillary ... 98, 99 judiciary, no control over governors of states .... . 124 executive oflBcers of, mandamus for ministerial duties . . . 127 bonds and securities of, mandamus to refund illegal assess- ment on 146 circuit court of, mandamus refused to entertain appeal from district court ... 191 supreme court of, jurisdiction to compel circuit court to sign bill of exceptions 209 removal of cause to courts of, from state courts . . 225, 226 circuit courts of, can not compel removal of cause from state courts 237 surety for removal of cause to, mandamus allowed . . . 328 supreme court of, mandamus from to court of claims . . . 239 mandamus from to district court .... 229 mandamus from to district court to rein- state cause 258 PART FIllST. 655 Section, UNITED STAT'ES—Continued. niaiicliimus from circuit to district courts of, when refused . 258 courts of, jurisdiction as to municipal aid bonds 393 not atfected by subsequent decisions or legislation of state 395 their jurisdiction in mandamus 583-590 UNIVERSITY, appointment to professorsliip in 54 mandamus to affix seal of 381 fellowship or degree in, mandamus for 296 UNLAWFUL ACT, mandamus not granted for 7, 40 V. VENUE, change of, writ refused for 172, 183 VERDICT, mandamus not granted to change 153 setting aside, writ refused 153 entry of judgment on one of several, writ refused .... 167 entry of judgment on, when writ granted 335, 349 entry of judgment in conformity with, mandamus to justice of the peace .... 341 mandamus to receive 249 VERIFICATION, general rule as to 507 by public prosecutor, not required 507 by one of several relators 508 VIOLATION, constitutes a contempt 565 punished by attachment 565 attachment for, refused where writ substantially complied with 566 not punished where officer acts in good faith 566 not justified by reversal of proceedings in appellate court . 567 not justified by subsequent injunction 567 not justified by irregularities in granting writ 568 by judges of inferior courts 569 by corporation, where not notified of writ 570 attachment for, proceedings discharged on quashing writ . 571 by municipal officers 573 attachment for, to whom directed 574 in federal courts, not justified by injunction from state court 575 practice on attachment for 576 rule to show cause, when dispensed with 576 656 INDEX. Sbotion. ^^^^'^°^' . . 280 to corporation, mandamus refused *°" VOLUNTEERS, payment of bounties to, mandamus to levy tax o7d VOTER, registration of, mandamus for "" ■writ refused to restore name to list 404 wlien competent relator *°° VOTES, canvass of, mandamus granted for 5o highest number of, writ granted to declare 60 W. W.VTIRHOUSE, delivery of grain at by railway, mandamus granted for . . 323 WARRANTS, for payment of claims against state, mandamus to draw . . 104 for salaries of officers, writ granted ; 105 for materials furnished state, writ granted 106 affixing seal to, mandamus allowed 107 for salary, to incumbent de/acto of office 108 for money due, writ granted where payment made to wrong person 110 for salary, refused where not speoiiically authorized bylaw .' Ill payment of, compelled by mandamus 112-117 on particular fund 114 drawing of for salary by governor, writ allowed 119 for payment of funds to railway by governor, mandamus granted 119 against delinquent tax collectors, mandamus in aid of . 143 issuing of by court to pay claim against county, mandamus allowed 233 for arrest of criminal, mandamus refused for 257 for examination of bankrupt, mandamus to issue .... 265 for payment of demands due from municipal corporation, mandamus granted 351 writ refused where no funds . 852 drawing of by county auditor, where writ allowed .... 353 vsrit refused where contract ultra mres . . 354 on county treasurer, mandamus barred by statute of limitations 355 on special fund for special indebtedness, writ allowed . . . 357 on city treasurer, writ refused to deliver city bonds in satis- faction of 364 to pay damages for laying out highway 431 PART FIRST. 657 Sbotioh. WILL, probate of, effect of litigation concerning 260 entering on books of corporation 314 WITNESS, punishment of for contempt, writ refused 155 WRIT OF ERROR, absence of, will not prevent interference by mandamus . . 19 remedy by, considered as a bar to mandamus 177-188 functions of, not usurped by mandamus 188 does not lie for granting or refusing alternative writ . . . 512 not allowed at common law on granting or refusing peremp- tory writ 556 not allowed under statute of Anne 556 but allowed under statute of Victoria 656 and allowed in this country 557 does not operate as a ««j)«rse(Ze