AND IMPORTERS . SAN FRANCISCO. Cfc T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LAW OF MANDAMUS BY S. S. MERRILL Of the St. Louis Bak. CHICAGO : T. H. FLOOD AND COMPANY. 1892. Copyright, 1892, BY S. S. MERRILL. STATE JOURNAL PRINTING COMPANY, Printers and Stereotypers, MADISON, wis. DEDICATION. THIS BOOK IS DEDICATED TO THE MEMORY OF MY BROTHER, WILLIAM E. MERRILL, DATE LIEUTENANT-COLONEL, CORPS OP ENGINEERS, UNITED STATES ARMY, WHO ORIGINATED AND CONSTRUCTED THE MOVABLE DAM ACROSS THE OHIO RIVER NEAR PITTSBURGH, PA., AND WHO FOR THE LAST TWENTY YEARS WAS IN CHARGE OF THE GOVERNMENTAL WORK ON THE OHIO RIVER. 687423 PREFACE. The law of mandamus has gradually grown up under the guidance of judicial discretion, which has produced such varying decisions from the numerous courts of last resort, that it is expedient from time to time to collect the law on this subject, both to assist the practicing attor- ney relative to the application of the writ in new questions presenting themselves from time to time, and to aid the courts in harmonizing their views of judicial discretion. In preparing this volume the author has himself care- fully examined every decision therein cited, and his read- ers may safely rely on the correctness of such citations. Of course it is admitted that the exercise of the greatest care does not render an error an impossibility. This work is now committed to his professional breth- ren in the hope that Job's wish, that his enemy would write a book, is not advice which should have been heeded by its author. S. S. MERRILL. St. Louis, May, 1892. TABLE OF CONTENTS. CHAPTER 1. DEFINITION AND HISTORY OF THE WRIT OF MANDAMUS. Section. Definition of the writ of mandamus 1 Origin of the writ .......... 2 The writ is a common-law writ . 3 Formerly no traverse was allowed . 4 When a traverse was allowed to the return ..... 5 English common law as adopted in America ..... 6 Statute of Anne adopted ........ 7 Extension of the writ in England ....... 8 Uncertainty as to the limits of its use 9 CHAPTER 2. NECESSITY THE ORIGIN OF THE WRIT. No other remedy 10 Remedy required where there is a right 11 Increasing the uses of the writ 12 CHAPTER 3. SCOPE OF THE WRIT OF MANDAMUS. The duties enforced by mandamus .... To compel production and inspection of public documents Mandamus as to property devoted to public use Mandamus not lie to enforce private contracts Writ not lie to compel payment of debts Exceptions as to collecting debts hy this writ Exceptions continued . . . . • Change of law as affecting mandamus . CHAPTER 4. 13 14 15 16 17 18 19 20 HOW FAR THE WRIT IS CONFINED TO PUBLIC RIGHTS AND AGAINST PUB- LIC OFFICERS. Is the writ confined to public rights in England? American rule ...... 21 22 VI TABLE OF CONTENTS. The writ will not l'un against a private person or officially Subject continued Mandamus to parties assuming public duties When is property devoted to public uses? Mandamus lies to those holding public franchises Mandamus runs to railroad corporations The writ runs against any corporation . . Section. one not acting 23 24 25 26 27 27a 28 CHAPTER 5. GENERAL PRINCIPLES GOVERNING THE ISSUE OF THE WRIT OF MANDAMUS. General nature of acts to which the writ applies . Ministerial acts Distinction between ministerial and judicial acts illustrated . Mandamus to take action in judicial or discretionary matters Mandamus not lie when performance is discretionary . Permissive statutes may be mandatory ..... Though the act calls for discretion, no excuse for non-action . Mandamus to take jurisdiction when wrongfully declined Mandamus not lie when officer has acted in a discretionary matte Exceptions as to interfering with acts involving discretion Illustrations of such interference ...... Mandamus when fraud or prejudice has influenced action The abuse of discretion must be flagrant .... The writ of mandamus will not lie to undo what has been done Mandamus and injunction contrasted ..... Are preliminary questions judicial or ministerial? . English rule as to preliminary questions .... American rule as to preliminary questions .... Subject continued Summary of decisions on the subject ..... Mandamus protects only substantial interests The writ creates no new duty .'.... Writ denied when there are other remedies .... Other remedy must be speedy ...... Other remedy must be adequate ...... Other remedy must be specific Other remedy must be a legal remedy Relator must show a clear legal right Obligation on respondent to do the act must be absolute Mandamus not lie, if act only to be done on approval of another There must be an officer to do the act desired Corollaries from preceding sections Mandamus is entirely a civil remedy 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 TABLE OF CONTENTS. VLL CHAPTER 6. DISCRETION OF COURT IN ISSUING THE WRIT. Section, Nature of the discretion of the court 62 Illustrations of exercise of discretion 63 Limitations as to the use of the writ from its nature ... 64 Subject continued 65 The court will try to make the writ the means of obtaining sub- stantial justice 66 The writ will be granted only in cases of necessity ... 67 Relator must show good motives and correct actions ... 68 Maridamus will be refused to direct an officer's general course of conduct 69 Writ refused when delay in acting not unreasonable ... 70 "Writ will be refused when it will work injustice .... 71 Writ will be refused when justice will not be subserved thereby . 72 Writ will be refused when it will operate harshly .... 73 The writ will not be issued unless it can effect substantial justice . 74 The writ will not issue when it will be unavailing .... 75 Subject continued 76 If the relator's rights expire before the hearing, the writ will be re- fused 77 Writ will be denied if respondent has gone out of office or the act ceases to be his duty 78 Mandamus to compel an action after the time limited for its per- formance 79 Instances of issuing the writ after the time to perform the act had expired ......••••• 80 The court will protect the respondent's rights .... 81 Parties will not be harassed by suits 82 Discretion used in protecting the rights of third parties ... 83 The writ will not issue when another tribunal can require the act to be done 84 The last rule not strictly observed 85 A mandamus not issued to command A. to command B. . . 86 Laches will bar relief by mandamus 87 Discretion of court when the state is relator . . . . • 88 CHAPTER 7. MANDAMUS AGAINST THE STATE. Cannot obtain a mandamus indirectly by obtaining one against an officer ........... 89 When the writ goes against the officers to enforce a liability of the state 90 VU1 TABLE OF CONTENTS. CHAPTER 8. MANDAMUS TO THE EXECUTIVE OFFICERS OF THE GOVERNMENT. Section The three co-ordinate independent branches of the government . 91 Mandamus to the president of the United States .... 92 Mandamus to the governor of a state ...... 93 Mandamus refused against the governor of a state ... 94 A case wherein decided that the writ would not issue against a gov- ernor ........... 95 Case where it was decided that a governor is amenable to this writ 96 Deductions from the decisions 97 Mandamus to the governor of a state from a federal court . . 98 Mandamus to other executive officers . . . ... 99 Mandamus to heads of federal executive departments . . . 100 Cases of mandamus to heads of federal executive departments . 101 Mandamus to the secretaries of state of the various states . . 102 Mandamus to a state treasurer 103 Mandamus to the comptroller of a state . . • • . 104 Mandamus to the auditor of a state ...... 105 Mandamus to commissioner of state land office .... 106 CHAPTER 9. MANDAMUS TO THE LEGISLATIVE DEPARTMENT. > CHAPTER 10. MANDAMUS TO PUBLIC OFFICERS AND PUBLIC CORPORATIONS. A mandamus lies to all public officers and public corporations to perform any ministerial duty ...... 108 When suits do not accomplish the act desired, a mandamus lies — Illustrations .......... 109 Mandamus not issue when officers have a discretion as to the man- ner or matter of doing the act 110 Mandamus to the governing board of a county .... Ill Acts of county authorities, involving judgment and discretion . 112 Mandamus to city councils 113 Mandamus to officers of taxes 114 Mandamus relative to public schools ...... 115 Mandamus to enforce duties relative to the public roads . . 116 Mandamus relative to letting public contracts .... 117 Mandamus relative to the approval of bonds of officers . . . 118 Mandamus about issuing licenses 119 Mandamus to police officials 120 Mandamus to clerk of the county board ..... 121 Mandamus to the clerk of a court ..*•.. 122 Mandamus to a sheriff 123 TABLE OF CONTENTS. IX Section. Mandamus to a register of deeds 124 Mandamus to keep public offices in the proper places . . . 125 Mandamus to auditing officers 126 Mandamus to assessors of taxes ....... 127 Mandamus relative to subscriptions by municipal corporations to railroads, etc. 128 Mandamus to levy a tax to pay debts, when authority to make a levy is granted or is implied 129 Claims must be legally established before a mandamus will issue to compel the levy of a tax for their payment .... 130 In a mandamus on a judgment, is the latter conclusive? . . 131 In a mandamus to levy a tax to pay a demand, public necessities must be first considered 132 Mandamus to collectors of revenue 133 Mandamus to obtain possession of public funds .... 134 Mandamus to disbursing officers . . . . . . 135 Mandamus concerning the payment of salaries .... 136 CHAPTER 11. THE USE OP MANDAMUS, WHEN THE RIGHT TO A PUBLIC OFFICE OR TO MEMBERSHIP, OR TO AN OFFICE, IN A PUBLIC CORPORATION, IS CON- CERNED. Right to disfranchise a member of a public corporation . . 137 Mandamus to order elections . . . . . . . .138 Mandamus to count the votes cast at an election .... 139 Mandamus to canvassing boards to issue a certificate of election . 140 Mandamus to swear an officer elect into office .... 141 Mandamus in favor of one holding the certificate of election . 142 Mandamus to put into office not granted, when there is a de facto incumbent .......... 143 Whether mandamus lies to put one into office pending a contest . 144 Mandamus to compel an officer elect to assume the duties of the office 145 Mandamus is allowed in some states to try the title to an office . 146 When a public officer may be removed from an office . . .147 Mandamus lies to restore an officer wrongfully removed from office 148 Mandamus will not lie to seat an officer who may be removed at once 149 Mandamus when an officer not removed but another party intrudes himself 150 Mandamus when removal from office is discretionary . . . 151 Party having the prima facie title to an office can enforce his rights as such officer by the writ of mandamus 152 Subject continued 153 X TABLE OF CONTENTS. Section, Mandamus for books and paraphernalia of office by party with the prima facie title . . . . . . . . .154 Subject continued 155 Mandamus not lie to private individual to surrender office books, etc . . 156 CHAPTER 12. MANDAMUS TO PRIVATE CORPORATIONS. Mandamus runs to private corporations because they are the crea- tion of the state 157 What duties of a private corporation are enforceable by manda- mus 158 Illustrations of the issue of the writ of mandamus to private corpo- rations 159 Mandamus to compel the transfer of its stock by a private corpo- ration . . . . • 160 Mandamus to obtain the inspection of the books of a private cor- poration 161 Mandamus lies to common carriers to prevent discrimination . 162 Mandamus will not he to a private corporation when there is an- other remedy 163 Mandamus will not go against a private corporation when it is financially unable to do the act desired 164 Mandamus to compel officers of private corporations to discharge their duties 165 Mandamus to restore to membership in a private corporation . 166 "Will a mandamus lie to restore to membership in a private corpora- tion when no pecuniary interests are involved? . . .167 What irregularities in expelling a member of a private corporation will vitiate such expulsion when it is reviewed by mandamus . 168 Expelled members must appeal to appellate tribunals before they can call for a mandamus 169 Mandamus to restore a member will not issue when he may be reg- ularly expelled upon his restoration 170 An action for damages for expulsion from a corporation is a waiver of all right to apply for a restoration by mandamus . . 171 Mandamus to admit to membership in private corporations . . 172 Mandamus to restore or to admit an officer of a private corpora- tion 173 Mandamus to benevolent associations to pay death losses . .174 If a private corporation has a visitor, a mandamus lies only when he fails to act .......... 175 Mandamus issues in ecclesiastical matters only when property rights are involved ......... 176 Mandamus to a foreign corporation 177 TABLE OF CONTENTS. xi CHAPTER 13. MANDAMUS TO CANVASSERS OF ELECTIONS. Section. The duties of canvassing boards are ministerial .... 178 When the canvassing board may reject, and when they must count, votes 179 Will any evidence be received except the returns when a man- damus is asked for against the canvassers of an election? . 180 A mandamus will issue to compel the proper officer to declare the result of the election 181 Mandamus will issue to the canvassing board though they have already given another the certificate 182 The peremptory writ will specifically direct the canvassing board what to do 183 Mandamus will not lie when another remedy or the board had dis- cretion or the writ was illegal 184 By mandamus the canvassing board may be required to reconvene and do their duty, though they have adjourned sine die . . 185 CHAPTER 14 MANDAMUS TO COURTS. Mandamus lies to courts as to ministerial acts .... 186 Mandamus does not lie to control the judicial discretion of a court 187 Discretion of a court will be reviewed when it is guided by fraud, passion, prejudice or adverse interest ..... 188 Mandamus to courts to compel judicial action, but not to con- trol it 189 Mandamus lies to make a judge sign a bill of exceptions . . 190 Application under the statute of Westminster to compel the sign- ing of a bill of exceptions 191 The bill of exceptions must be presented to the judge within the proper time 192 No one can be required to sign a bill of exceptions except an officer 193 Cases where a mandamus to sign a bill of exceptions will be re- fused 194 Mandamus to restore attorneys who have been disbarred . . 195 Mandamus not granted to review interlocutory proceedings of the courts 196 Exceptions to the rule 197 Mandamus often granted in Louisiana to review interlocutory or- ders 198 Interlocutory orders of courts may in Alabama be reviewed by the writ of mandamus 19'J Interlocutory orders of courts may in Michigan be reviewed by writs of mandamus 200 Afandamus cannot take the place of an appeal or writ of error . 201 Xii TABLE OF CONTENTS. Section. Mandamus will not always lie, though appeal or writ of error not allowable • 202 Mandamus lies to compel a court to try a cause, when it refuses to do so on the erroneous decision that it has no jurisdiction . 203 When a court for any cause improperly refuses to proceed in a cause, mandamus lies to compel action 204 Disputed question whether appealed or mandamus lies upon an er- roneous dismissal of an appeal by the lower court . . .205 "When an appeal is wrongfully dismissed for matters occurring sub- sequent to its docketing, it may be reinstated on the docket by a mandamus ......•••• 206 When a mandamus lies to compel a court to hear a cause, when it has declined to hear it by reason of an erroneous decision on some preliminary question 207 Mandamus to compel the allowance of an appeal .... 208 Mandamus will not lie to a court when there is another remedy . 209 Litigants cannot by agreement create duties which the court may be compelled by mandamus to perform 210 Special instances where a mandamus was not required or would have been inefficacious . 211 Mandamus to justices of the peace ...... 212 CHAPTER 15. WHAT COURTS ISSUE THE WRIT OF MANDAMUS. Courts of general common-law jurisdiction issue writs of man- damus 213 In issuing writs of mandamus courts exercise original or appel- late jurisdiction 214 Issue of writs of mandamus by appellate courts .... 215 Issue of mandamus by the United States supreme court . . 216 Issue of writs of mandamus by subordinate federal courts . . 217 Mandamus by federal courts to levy a tax to pay their judgments 218 CHAPTER 16. RELATIONS BETWEEN FEDERAL AND STATE COURTS AND OFFICERS RELA- TIVE TO THE USE OF THE WRIT OF MANDAMUS. Federal courts can issue a mandamus to all state officers, except ju- dicial officers, but state courts cannot to federal officers . .219 Mandamus in connection with the transfer of causes from the state to the federal courts 220 CHAPTER 17. APPLICATION TO OFFICER TO PERFORM HIS DUTY. Mandamus is never issued unless the respondent is in default in the performance of his duty 221 TABLE OF CONTEXTS. Xlll Section. A demand must be made before the writ will issue . . . 223 A refusal to comply must be shown before the writ will issue . 333 When personal demand is unnecessary 224 A positive refusal to perform the duty is not always necessary — Conduct may be equivalent to a refusal 225 A demand cannot be made before the time has expired wherein the officer is allowed to do the act ....... 226 Will a mandamus lie when the power to do the act for that year ceases with the occurrence of the default? .... 227 CHAPTER 18. PARTIES TO MANDAMUS PROCEEDINGS. Parties in interest must be the relators in mandamus proceedings to protect private rights 228 Can a private party be the relator to enforce a public right? . . 229 Subject continued 230 Public officers, but not their agents, can apply for this writ as rela- tors even against their co-officers 231 Who may be joined as relators 232 Does the writ abate by the death of the relator or the expiration of his term of office? 233 The writ must issue against him whose duty it is to do the act de- sired 234 All persons charged with the performance of the duty must be joined as respondents, but none others 234a All persons concerned in the separate but co-operative steps in the attainment of the result sought may be joined as respondents in one mandamus 235 Contrary rulings on the last proposition 236 How the manda7ims should be directed when a corporation is the respondent ........•• 237 Does the writ abate upon the resignation, or expiration of the term of office, of the respondent? 238 When the resignation alone does not vacate the office, such resig- nation may be disregarded till the office is legally vacated . 239 Where a corporation or a select body is the respondent, no change in its membership will affect the proceedings .... 240 Maiidamiis not lie to one having no duty in the premises or who has gone out of office ......•• 241 Can third parties be subsequently brought in as relators or respond- ents? 243 Subject continued 242a Third persons interested should be allowed to intervene or should be made parties ....■•••• 243 Third parties not allowed to intervene to litigate matters not in- volved in the mandamus proceedings 244 XIV TABLE OF CONTENTS. CHAPTER 19. PLEADINGS AND PRACTICE IN MANDAMUS PROCEEDING& Section. First proceeding is a motion asking for the writ . . . 245 The motion for a mandamus must be verified .... 246 The affidavits for the motion should be entitled of the court but not of the cause 247 Sufficiency of the jurat to the petition for a mandamus . . 248 Action of the court on the petition for a mandamus . . . 249 When the court will grant the alternative writ on the motion to show cause 250 When the court will issue a peremptory writ without any notice to the respondent .... .... 251 Action of the court on the hearing of the motion to show cause . 252 The alternative writ becomes the first pleading in the cause . . 253 Particularity of statement required in the alternative writ . . 254 Subject continued 255 Illustrations of the particularity required in the writ *. . . 256 The alternative writ must show that the proper demand of per- formance was made of the facts rendering a demand unneces- sary ........... 257 A refusal by the respondent to act must be alleged in the alterna- tive writ or the facts equivalent to a refusal .... 258 The alternative writ must show that the relator has no legal rem- edy except the writ of mandamus 259 Particularity required in the mandatory clause of the alternative writ 260 Documents of importance in the case should accompany a petition for a mandamus 261 The alternative writ should conform to the petition . . . 262 Mode of setting out the facts in the alternative writ . . . 263 The manner in which mandamus proceedings are entitled . . 264 Where there is an informality in the alternative writ an alias may issue ........... 265 Proceeding when no return is made to the alternative writ . . 266 A return of obedience to the alternative writ .... 267 The early practice in mandamus proceedings .... 268 When a motion lies to quash the alternative writ .... 269 Demurrer to the alternative writ 270 Amendment to alternative writ ....... 271 Return after the overruling of the demurrer to, or motion to quash, the alternative writ 272 No prescribed form for a return, but it must contain the necessary allegations 273 Certainty and completeness of statement required in a return . 274 TABLE OF CONTENTS. XV Section. Certainty required in a return to a writ to restore a party removed from office or membership in a corporation . . . , . 275 A return is sufficient which follows the suggestions of the writ . 276 Several defenses may be stated in a return 277 Pendency of other litigation pleaded in abatement . . . 278 Pleas puis darrein continuance 279 Positiveness of allegation required in a return . . . .280 Instances of returns which were adjudged to be insufficient . . 281 "Who shall make the return 282 Verification of the return 283 Treatment of a return which is evasive or frivolous . . . 284 Demurrer to a return and rules governing it 285 Subject continued 286 Amendment of return 287 Reply to the return 288 Reply and subsequent proceedings 289 Trial by jury .... 290 Relator must prove his right to all he asks for ... 291 General rules of practice and of pleading as applicable to mandamus proceedings • 292 Amendments under the early practice 293 Amendments under the present practice 294 All the issues must be disposed of before the peremptory writ will issue • • *°" How far the peremptory writ must conform to the alternative . 296 When the peremptory writ will be. quashed, or disobedience of it excused , 297 Attachment for making no return to or for not obeying a peremp- tory writ .298 The peremptory writ must be fairly and honestly complied with . 299 Defenses which may be urged against an attachment on the hear- ing of a motion to show cause why an attachment should not issue for disobeying a peremptory mandamus .... 300 Defects appearing on the papers, on account of which an attach- ment for disobedience of a peremptory writ of mandamus will be refused 801 Proceedings when a party is adjudged guilty of contempt of court 302 Proceedings for contempt of court against corporations and boards 303 When an appeal lies in a mandamus proceeding under English law 304 An appeal is granted in America, in mandamus proceedings, when- ever the action taken is considered to be a final judgment . 305 Appeal or writ of error lies if the writ is refused on the reading of the petition 806 Proceedings in review in the appellate court 307 The right to review mandamus proceedings by appeal or writ of error does not always exist «>08 XVI TABLE OF CONTENTS. Section. Is a peremptory mandamus suspended by an appeal with an indem- nifying bond? 309 Costs in mandamus proceedings 310 CHAPTER 20. MISCELLANEOUS PRINCIPLES. Mandamus bars a suit for damages and vice versa .... An injunction will not issue against the prosecution of a marl' damus Mandamus not always issued when there is no other remedy . Statute of limitations, how far applicable Res judicata in mandamus proceedings . • • . CHAPTER 21. FORMS IN MANDAMUS PROCEEDINGS. Entitling the petition Form of the body of the petition Verification of the petition Form of the alternative writ . Requirements of the return . Form of final judgment . Illustrations of the necessary pleadings 311 812 313 314 315 316 317 318 319 320 321 TABLE OF CASES CITED. A. Abrams, Ex parte, 48 Ala. 151. §199. Ackerman v. Desha Co., 27 Ark. 457. § 75. Adams v. Mathis, 18 N. J. L. 310. §205. Adkins v. Doolen, 23 Kan. 659. §229. Ah Sep v. Gong Choy, 13 Oreg. 205. §190. Alabama, etc. Co., Ex parte, 59 Ala. 192. §199. Albany (Com. Council), Ex parte, 3 Cow. 358. § 127. Albin v. Ind. Dist. (Board Direct- ors), 58 Iowa, 77. § 115. Alderson v. Com'rs, 31 W. Va. 633. §185. Alexander v. State, 82 Tenn. (14 Lea), 88. §§ 190, 192. Alger v. Seaver, 138 Mass. 331. §§ 62, 63, 84. Allen v. Kobinson, 17 Minn. 113. §144. Allnutt v. Subsidiary, etc. Court, 62 Mich. 110. § 166. American C. Co. v. Licking Co. (Com'rs), 31 Ohio St. 415. §117. American, etc. Co. v. Bell, etc. Co., 1 McCrary, 175. § 217. v. Haven, 101 Mass. 398. §§ 21, 62. Amperse v. Kalamazoo (City), 59 Mich. 78. §§ 40, 274. Amy v. Watertown, 130 U. S. 301. §239. Anacosta Tribe v. Marbach, 13 Md. 91. § 166. Anderson v. Pennie, 32 Cal. 265. §212. Andover, Case of, 2 Salk. 433 ; 13 Mod. 332. § 232. Anonymous, 2 Chit. 253. § 21. 2 Chit. 254. § 234a. 2 Chit. 255. § 154. 1 Barn. (K. B.) 402. § 165. 7 N. J. L. 160. § 187. 2 Salk. 436. § 232. 2 Salk. 525. § 269. Antoni v. Greenhow, 107 U. S. 769. §20. Apgar v. Trustees, 34 N. J. L. 308. §§ 115, 311. Aplin v. Grand Traverse County, 73 Mich. 182. § 89. v. Midland Co. (Sup'rs), 84 Mich. 121. § 285. v. Van Tassel, 73 Mich. 28. §§ 88, 89. Appleford's Case, 1 Mod. 82. §§ 37, 175. Applegate v. Applegate, 4 Mete. (Ky.)236. §189. Arberryv. Beavers, 6 Tex. 457. §§30, 40, 51, 57, 108, 254, 266^ 294. Armijo v. Territory, 1 N. Mex. 580. §251. Arno v. Circuit Court, 42 Mich. 362. §200. Arrington v. Cotton, 1 Baxt 316. §115. XV111 CASES CITED. Arlington v. Van Houton, 44 Ala 284. § 51. Ashby v. Wellington, 8 Pick. 524. §22. Aspen (Mayor) v. Aspen, etc. Co., 10 Colo. 191. § 57. Assessor of Taxes v. State, 44 N. J. L. 395. § 20. Atchison v. Lucas, 83 Ky. 451. §56. Atchison, etc. R R. v. Jefferson Co. (Com'rs), 12 Kan. 127. §§ 82, 128. Attala Co. (Board Police) v. Grant, 9 Sm. & Mar. 77. §§ 251, 252, 285. Attorney-General v. Albion, etc. Inst, 52 Wis. 469. §229. v. Barstow, 4 Wis. 567. § 97. v. Boston, 123 Mass. 460. §§ 9, •29, 51, 227, 230. v. Chicago, etc. R. R., 35 Wis. 425. §88. v. Lawrence (City), 111 Mass. 90. § 79. v. Lum, 2 Wis. 507. § 85. v. New Bedford (Mayor), 128 Mass. 312. § 63. v. New Jersey, etc. Co., 3 N. J. Eq. 136. § 43. Atwood v. Partree, 56 Conn. 80. §229. Auditor v. Halbert, 78 Ky. 577. §314. Auditorial Board v. Aries, 15 Tex. 72. §126. v. Hendrick, 20 Tex. 60. § 126. Audly's Case, Latch, 123. § 283. Austen v. Probate Court, 35 Mo. 198. § 204. Austin v. Searing, 16 N. Y. 112. §158. Avery v. Krakow (Tp.) 73 Mich. 622. §87. Ayers, In re, 123 U. S. 443. §§ 89, 98. B. Babcock v. Goodrich, 47 Cal. 488. §§ 51, 53, 126, 249, 261, 322. Badger v. United States, 93 U. S. 599. § 239. Bagg's Case, 11 Coke, 73. § 137. Bailey v. Ewart, 52 Iowa, 111. § 115. v. Oviatt, 46 Vt. 627. §§ 21, 158, v. Strohecker, 38 Ga. 259. §160. Baker v. Johnson, 41 Me. 15. §§53, 55, 135. v. Kirk, 33 Ind. 517. § 93. v. Marshall, 15 Minn. 180. § 160. Baldwin v. Branch Cir. Judge, 48 Mich. 525. § 200. Ball v. Lappius, 3 Oreg. 55. § 75. Ballou v. Smith, 29 N. H. 530. § 212. Baltimore, etc. R. R, Ex parte, 108 U. S. 566. §§ 46, 201, 203. 205. Bank of California v. Shaber, 55 Cal. 322. § 135. Bank of State v. Harrison, 66 Ga. 696. §§ 21, 62, 160. Banks, Ex parte, 28 Ala. 28. § 199. Banton v. Wilson, 4 Tex. 400. §§ 146, 148. Barkley v. Levee Com'rs, 93 U. S. 258. §§218,240. Barksdale v. Cobb, 16 Ga. 13. §§51, 53, 201. Barnes, Ex parte, 84 Ala. 540. § 199. Barnet v. Dir. Ind. Dist., 73 Iowa, 134. § 51. Barney v. State, 42 Md. 480. §§ 159, 285. Barrows v. Mass. Med. Soc., 12 Cush. 402. § 166. Bass v. Shakopee City, 27 Minn. 250. §303. v. Taft, 137 U. S. 458. § 111. Bassett v. Barbin, 11 La, An. 672. §§ 65, 129. Bates v. Detroit, etc. Assoc., 47 Mich. 646. § 174. CASES CITED. XIX Bates v. Overseers of Poor, 14 Gray, 163. § 231. v. Taylor, 87 Term. 319. §94 Bath County v. Amy, 13 Wall 244. §217. Bauer v. Sampson Lodge, 102 Ind. 262. § 169. Bayard v. United States, 127 U. S. 246. §§ 56, 101. Bayne v. Jenkins, 66 N. C. 356. §103. Beaman v. Lake Co. (Board of Po- lice), 42 Miss. 237. §§ 55, 56. Bean v. People, 6 Colo. 98. §§ 213, 305. v. Barton Co. Court, 33 Mo. Ap. 635. § 119. Beard v. Lee Co. (Sup'rs), 51 Miss. 542. §§ 33, 130. Beaulieu v. Pleasant Hill (City), 4 McCrary, 544. § 132. Beck v. Jackson, 43 Mo. 117. §152. Becke, Ex parte, 3 B. & Ad. 704. §§ 39, 187. Beebe v. Lockert, 6 Ark. 422. § 208. Beecher v. Anderson, 45 Mich. 543. § 242a. Beguhl v. Swan, 39 CaL 411. §§ 46, 203. Belcher v. Treat, 61 Me. 577. § 61. Bell v. Pike, 53 N. H. 473. § 114. Benbow v. Iowa City, 7 WalL 313. §281. Benedict v. Howell, 39 N. J. L. 221. §190. Benjamin v. Prieur, 8 Rob. 193. §219. Benson v. Paul, 6 EL & BL 273. §16. Biggs v. McBride, 17 Oreg. 640. §§ 13, 17, 143. Birmingham F. L Co. v. Com., 92 Pa. St. 72. § 160. Black, Ex parte, 1 Ohio St. 80. §111. Black v. Auditor, 26 Ark. 237. §§ 46, 102, 105, 246. Black, etc. Soc. v. Vandyke, 2 Whart. 309. §§ 157, 166. Blair v. Marye, 80 Va. 485. §§ 12, 51. Bledsoe v. International R. R., 40 Tex. 537. §§ 30, 94, 99. Blisset v. Daniel, 10 Hare, 493. §166. Block v. Com'rs, 99 U. S. 686. § 315. Blunt v. Greenwood, 1 Cowen, 15. §197. Board of Educ. v. Detroit (City), 80 Mich. 548. § 60. Board of Improv. v. McManus, 54 Ark. 446. § 126. Board of Liquid, v. McComb, 92 U. S. 531. § 228. Board of Police v. Grant, 9 Sm. & Mar. 77. § 204. Board of Supervisors v. People, 110 111. 511. § 33. Bobbett v. State, 10 Kans. 9. § 229. Boggs v. Chicago, etc. R. R., 54 Iowa, 435. §§ 1, 13, 21, 159. Bonner v. State, 7 Ga. 473. §§ 93, 143. Boom v. De Haven, 72 CaL 280. §219. Boone Co. (Board Com'rs) v. State, 38 Ind. 193. §§ 53, 116. v. State, 61 Ind. 379. §§ 153, 270. Boone Co. v. Todd, 3 Mo. 140. §111. Booth v. Strippleman, 61 Tex. 378. §285. Boothe, Ex parte, 64 Ala. 312. § 201. Booze v. Humbird, 27 Md. 1. §§ 66, 233. Boraim v. De Costa, 4 Ala. 393. §199. Boren v. Darke Co. (Com'rs), 21 Ohio St. 311. § 117. Borgraefe v. Knights of Honor, 22 Mo. Ap. 127. § 16a XX CASES CITED. Boston T. Co. v. Pomfret (Town), 20 Conn. 590. § 114. Bostwick, Ex parte, 1 Cow. 148. §201. Bos worth v. Webster, 64 CaL 1. §§ 75, 133. Bouldin v. Alexander, 15 Wall. 131. §176. Bowers v. Taylor, 127 Ind. 272. §§ 274, 301. Boynton v. Newton (Dist. Town.), 34 Iawa, 510. § 130. Bracken v. Wells, 3 Tex. 88. § 67. Bradley, Ex parte, 7 Wall. 364. §§ 40, 195, 216, 313. Bradstreet, Ex parte, 4 Pet 102. §190. 7 Pet. 634. §§ 189, 216, 273. 8 Pet. 588. § 196. Brady v. New York (Supervisors), 2 Sandf. 460. § 111. Brashear v. Mason, 6 How. 92. §§ 100, 306. Brazier v. Tarver, 4 Ala. 569. § 199. Brem v. Arkansas County Co. Court, 9 Ark. 240. §204. Brennan v. Harris, 20 Ala 185. §189. Brewer v. Watson, 61 Ala 310. §155. Brigenoth (Bailiff's) Case of, 2 Stra 808. §303. Briggs, Ex parte, 1 E. & E. 881. §§ 14, 155. Briggs v. Hopkins, 16 R L 83. §§ 30, 40, 48. Briscoe v. Ward, 1 Har. & J. 165. §190. Bristol, etc. R. R, In re, 3 Q. B. D. 10. §§ 76. 164. Brokaw v. Com'rs of Highways, 130 111. 482. §§ 34, 40, 81. Bromley, In re, 3 D. & R 310. §204. Brooke v. Ewers, 1 Stra 113. § 189. Brosius v. Reuter, 1 Harr. & Johns. 551. § 22. Brower v. O'Brien, 2 Ind. 423. §§ 61, 264. Brown, Ex parte, 116 U. S. 401. §206. Brown v. Board Com'rs, 38 Kans. 436. § 182. v. Buck, 75 Mich. 274. § 200. v. Crego, 32 Iowa 498. §§ 135, 219. v. Crippen, 4 Hen. & M. 173. §220. v. Ruse, 69 Tex. 589. §§ 246, 270. Brownsville v. Loague, 129 U. S. 493. §§ 50, 131, 218. Bruce v. Williamson, 50 Ala 313. §199. Bryan v. CattelL 15 Iowa, 538. §105. Bryson v. Spaulding, 20 Kans. 427. §§ 121, 223. Buckley v. Palmer, 2 Salk. 430. §268. Buck-man v. Beaufort (Com'rs), 80 N. C. 121. § 32. Budd v. New Jersey, etc. Co., 14 N. J. L. 467. § 204. Buffalo, etc. R R v. Com., 120 Pa. St. 537. § 51. Burdett, In re, 127 U. S. 771. §§ 216, 313. Burgess of Devises, 2 Keb. 725. §283. Burke v. Monroe Co. (Sup'rs), 4 W. Va. 371. § 179. Burkhart v. Reed, 134 U. S. 361. §107. Burland v. Northwestern, etc. Assoc, 47 Micb. 424. §§ 16, 17, 174, 315. Burnet v. Portage Co. (Aud.), 12 Ohio St. 54. §§ 32, 37, 107. Burnsville I. Co. v. State, 119 Ind. 382. §§ 56, 61, 160, 290. Burr, Ex parte, 9 Wheat. 529. §§ 41, 195, 216. Burr v. Norton, 25 Conn. 103. §§ 142, 148, 155. CASES CITED. XXI * Burt v. Reilly, 82 Mich. 251. § 72. v. Michigan Grand Lodge, 66 Mich. 85. §§ 157, 166, 169. Burtis, Ex parte, 103 U. S. 238. §§ 42, 43, 187. Butler v. Coblet, 11 Mod. 254. § 127. Butterworth v. Hoe, 112 U. S. 50. §101. Button v. Platte City, 2 DilL 1. §130. Butz v. Muscatine (City), 8 Wall. 575. §§129,130. Byrne v. Harbison, 1 Mo. 225. § 209. c. Cabaniss v. Hill, 74 Ga. 845. § 130. Cage, Ex parte, 45 CaL 248. § 201. Cairo (City) v. Campbell, 116 111. 305. § 226. v. Everett, 107 EL 75. § 225. Calaveras County v. Brockway, 30 Cal. 325. §§ 125, 178, 278, 290. Calne (Borough), Case of, 2 Stra. 948. §§109,155. Campbell, Ex parte, 20 Ala. 89. §187. Campbell v. Wallen, Mart & Yerg. 266. §220. Campau v. Board Public Works, 86 Mich. 372. § 83. Canada C. R. R, In re, 35 Up. Can. Q. B. 390. § 235. Canal (Board Trustees) v. People, 12 111.248. §255. Canal Com'rs (Board) v. Willa- mette, etc. Co., 6 Oreg. 219. §25. Candee, Ex parte. 48 Ala, 386. §§ 47, 118, 274, 277, 279, 306. Cannon v. Janvier, 3 Houst 27. §245. Canova v. State, 18 Fla. 512. §S 20, 274. Cape Girardeau Co. Court v. Hill, 118 U. S. 68. §20. Careaga v. Fernald, 66 Cal 351. §§ 53, 305. Cariaga v. Dryden, 29 Cal. 307. §313. Carlton High Dale, Ex parte, 4 N. & M. 312. § 81 Carnochan, Ex parte, Charlt 216. §85. Carpenter v. Bristol (Co. Com'rs), 21 Pick. 258. §§ 29, 111. Carr v. State, 127 Ind. 204 §§ 89, 105. Carrick v. Lamar, 116 U. S. 423. §§ 29, 81, 101. Casky v. Haviland, 13 Ala. 314. § 189. Cass Township v. Dillon, 16 Ohio St 38. § 134. Castello v. St Louis Cir. Ct, 28 Mo. 259. § 46. Castle v. Lawlor, 47 Conn. 340. §290. Catlettsburg (Trustees) v. Kiuner, 13 Bush, 334. §§ 40, 229. Cavanaugh v. Wright, 2 Nev. 166. §203. Central, etc. Co. v. Com., 114 Pa. St 592. §§254,274. Central U. T. Co. v. State, 118 Ind. 194. §§ 25, 162. v. State, 123 Iud. 113. §§ 25, 162. Chalk v. Darden, 47 Tex. 438. § 106. Chamberlain, Ex parte, 4 Cow. 49. §187. Chamberlain v. Lincoln, 129 Mass. 70. § 169. Chambers, Ex parte, 10 Mo. Ap. 240. §§ 53, 196. Chance v. Temple, 1 Iowa, 179. §§ 56, 89, 90, 228, 239, 247, 249, 250, 251, 255, 257, 263, 264, 268, 270, 272, 274, 283, 291, 296, 305. Chase v. Blackstone C. Co., 10 Pick. 244. § 187. v. Cheney, 58 IlL 509. § 176. XX11 CASES CITED. Chase v. Morrison, 40 Iowa, 620. §115. Chastain v. Armstrong, 85 Ala 215. §199. Chateaugay, etc. Co., Petitioner, 128 U. S. 279. § 190. Chesapeake, etc. Co. v. Baltimore, etc. Co., 66 Md. 399. § 25. Chesebro v. Babcock, 59 Conn. 213. §305. v. Montgomery, 70 Mich. 650. §200. Chicago, etc. R. R. v. Franks, 55 Mo. 325. § 212. v. Iowa, 94 U. S. 155. § 25. v. People, 56 111. 365. § 27. v. Suffern, 129 I1L 274. §§ 56, 57, 230. v. Wilson, 17 111. 123. § 189. Chicot Co. v. Kruse, 47 Ark. 80. § 61. Chinn v. Trustees, 32 Ohio St 236. §§ 87, 314. Chisholm v. McGehee, 41 Ala. 192. §§ 93, 104. Chumasero v. Potts, 2 Mont 242. §§ 3, 13, 21, 61, 62, 93, 145, 213, 224, 230, 264, 290. Churchill v. Emerick, 56 Mich. 536. §200. v. Martin, 65 Tex. 370. § 309. Cincinnati College v. Yeatman, 30 Ohio St. 276. § 127. Cincinnati, etc. R R. v. Clinton Co. (Com'rs), 1 Ohio St 77. §§ 65, 128. Citizens' Bank v. Wright 6 Ohio St 318. § 105. City v. Sansum, 87 111. 182. §§ 131, 237. Clapper, Ex parte, 3 Hill, 458. §§ 60, 81, 116. Clark v. Board Examiners, 126 Mass. 282. §§ 178, 179. v. Crane, 57 CaL 629. §§ 75, 190, 192. v. Elwick, 1 Stra. 1 ; Barnes, 58. §24. Clark v. McKenzie, 7 Bush, 523. §§ 178, 185, 238. Clarke v. Leicestershire, etc. Canal, 6 Ad. & E. (N. S.) 898. §269. v. Trenton, 49 N. J. L. 349. §143. Clarke Co. (Com'rs) v. State, 61 Ind. 75. §§ 230, 282. Clarke Co. (Just.) v. Paris, etc. Co., 11 B. Mon. 143. §§ 128, 297. Clay v. Bolland (Va., 1891), 13 S. E. Rep. 262. § 14. Clay County v. McAleer, 115 U. S. 616. §§ 20, 60, 129, 132. Clayton v. Mc Williams, 49 Miss. 311. §42. Clough v. Curtis, 134 U. S. 361. §107. Coffin v. Davenport (City Council), 26 Iowa, 515. §§ 129, 132. Coit v. Elliott 28 Ark. 294. § 187. Cole, Ex parte, 28 Ala. 50. § 199. Collarn's Petition, 134 Pa, St 551. §§ 37, 40, 119. Colley v. Webster, 59 Conn. 361. §53. Colnon v. Orr, 71 Cal. 43. § 14. Colonial, etc. Co. v. Board Super- visors, 24 Barb. 166. § 75. Colt v. Roberts, 28 Conn. 330. §115. Columbia Co. (Com'rs) v. Bryson, 13 Fla. 281. §§ 240, 312. v. King, 13 Fla 451. §§ 20, 129, 224, 225, 294 Columbian Ins. Co. v. Wheelright 7 Wheat 534. § 308. Colvard v. Commissioners, 95 N. C. 515. §§77,78. Commercial Bank v. Canal Com- missioners, 10 Wend. 25. §§ 252, 255, 269, 274, 285, 286, 304. Commissioner of Patents v. White- ley, 4 Wall. 522. § 100. Commissioners v. Sellew, 99 U. S. 624. §§240,303. CASES CITED. XX111 Commonwealth v. Allegheny (Com'rs), 16 S. & R 317. §51. v. Allegheny (.Com'rs), 32 Pa. St. 218. §§13, 274, 285. v. Allegheny (Com'rs), 37 Pa. St 237. §224. v. Allegheny (Com'rs), 37 Pa, St 277. §§ 129, 225, 257, 260, 274. v. Allegheny (Com'rs), 43 Pa. St 400. § 129. v. Bunn, 71 Pa. St. 405. § 189. v. Cochran, 6 Binn. 456. §§ 32, 37, 110. v. County Commissioners, 5 Binn. 536. § 115. v. County Commissioners, 5 Rawle, 45. §§ 57, 138, 143. v. Cumberland C. P. Ct (Judges), 1 S. & R. 187. §§ 11, 195. v. District Court (Judges), 5 Watts & S. 272. § 195. v. Emminger, 74 Pa St. 479. §179. v. Empire P. R. R, 134 Pa. St. 237. §§ 68, 161. v. Fairfax Co. (Just), 2 Va. Cas. 9. § 111. v. German Society, 15 Pa. St. 251. §£ 166, 275. v. Guardians of the Poor, 6 S. &R469. §§137, 147,166. 168, 275. v. Hampden Sessions (Just), 2 Pick. 414. §§ 111, 225,257. v. Henry, 49 Pa. St 530. §g 68, 110, 283. v. James, 135 Pa. St 480. § 109. v. Johnson, 2 Binn. 275. § 135. v. Kanawha Co. (Just), 2 Va. Cas. 499. § 111. v. Lancaster Co. (Com'rs), 6 Binn. 5. § 126. v. Loomis, 128 Pa. St. 174 §116. v. MeCandless, 129 Pa. St. 492. §290. Commonwealth v. McLaughlin, 120 Pa. St. 518. § 204. v. Middlesex (Sessions), 9 Mass. 388. § 189. v. Mitchell, 82 Pa. St 343. §§56, 117,229. v. Norfolk (Sessions), 5 Mass. 434. § 189. v. Pennsylvania B. Inst., 2 S. & R 141. §§ 49, 168. . v. Perkins, 7 Pa. St. 42. § 112. v. Philadelphia (Com'rs), 1 Whart 1. §§ 63, 283. v. Philadelphia C. P. (Judges), 3 Binn. 273. § 205. v. Philanthropic Soc, 5 Binn. 486. § 166. v. Phoenix Iron Co., 105 Pa. St. 111. § 161. v. Pike B. Soc, 8 Watts & S. 247. §§ 166, 261. v. Pittsburgh, 88 Pa St 66. § 129. v. Pittsburgh (Sel. Council), 34 Pa St 496. §§ 129, 222, 225, 237, 257, 259, 274, 284, 293, 294, 319, 322. v. St Patrick B. Soc, 2 Binn. 441. § 166. v. Sheehan, 81 Pa St. 132. §§116, 302. v. Taylor, 36 Pa St. 263. §§ 35, 113. 297. Compton v. Airial, 9 La. An. 496. §122. Condit v. Newton Co., 25 Ind. 422. § 221. Conlin v. Aldrich, 98 Mass. 557. §§ 49, 146. Connitt v. Reformed, etc Church, 54 N. Y. 551. § 176. Conrad v. Prieur, 5 Rob. 54. § 219. Conrow v. Schloss, 55 Pa. St. 28. §§ 190, 191, 273. Cook v. College Phy. & S., 9 Bush, 541. § 158. v. Tannar, 40 Cona 378. § 245. XXIV CASES CITED. Cooper v. Nelson, 38 Iowa, 440. §§ 129, 131. Copeland v. State, 126 Ind. 51. §118. Corpus Christi (City) v. Woessner, 58 Tex. 462. § 132. Cortleyou v. Ten Eyck, 22 N. J. L. 45. § 189. Cotten v. Ellis, 7 Jones, 545. § 93. Cottle v. Harrold, 72 Ga 830. § 190. County Com'rs (Board) v. Crotty, 9 Colo. 318. § 31. Coventry (Mayor), Case of, 2 Salk. 429. §§ 3, 266. Cowan v. Fulton, 23 Grat 579. §203. Cowell v. Buckelew, 14 Cal. 640. §§ 84, 85. Cox v. Rich, 24 Kans. 20. § 212. Coy v. Lyons (City Council), 17 Iowa, 1. §§ 130, 132. Crane, Ex parte, 5 Pet 190. §§ 3, 190, 214, 210. Crans v. Francis, 24 Kans. 750. §§ 253, 289. Crawford v. Carson, 35 Ark. 565. §43. Crawford County (Com'rs) v. Louis- ville, etc. R R, 39 111. 192. §228. Craykendall, Ex parte, 6 Cow. 53. §197. Creager v. Meeker, 22 Ohio St. 207. §190. Creary v. Rogers, 35 Ark. 298. §215. Crocker v. Old South Society, 106 Mass. 489. §§ 166, 168. Cromastie v. Bladen (Com'rs), 85 N. C. 211. §§ 130, 132, 300. Cromie, In re, 2 Biss. 160. § 220. Crosby v. Fortescue, 5 Dowl. 273. §261. Cross v. West Va. etc. R R, 34 W. Va. 742. §§ 242a, 260. Crowell v. Lambert, 10 Minn. 369. §154. Culver v. Judge, 57 Mich. 25. § 204. Cumberland, etc. R R v.Washing- ton C. Court (Judge), 10 Bush, 564. § 312. Cummings v. Armstrong, 34 W. Va. 1. § 190. Cummins v. Evansville, etc. R R., 115 Ind. 417. §§ 158, 159. Curningham v. Macon, etc. R R., 109 U. S. 446. § 89. v. O'Connor, 80 Tenn. 397. §154. Curser and Smith, 1 Barn. (K. B.)59. §246. Cutcomp v. Mayor, 60 Iowa, 156. §77. Cuthbert v. Lewis, 6 Ala. 262. § 126. Cutting, Ex parte, 94 U. S. 14. §§ 57, 221. D. Dacosta v. Russia Co., 2 Stra. 783. §22. Daly v. Dimock, 55 Conn. 579. § 62. Dalton v. State. 43 Ohio St. 652, §§ 178, 179, 180. Daniel v. Warren Co. Court, 1 Bibb, 496. § 215. Daniels v. Miller, 8 Colo. 542. §§ 57, 255. Dauley v. Whiteley, 14 Ark. 687. §105. Danville v. Blackwell, 80 W. Va. 38. §187. Darrow v. People, 8 Colo. 417. § 139. Davenport v. Dodge Co., 105 U. S. 237. g§ 217, 218. Davenport, Ex parte, 6 Pet 661. §187. Davies v. Corbin, 112 U. S. 36. §S 305, 309. v. McKeeby, 5 Nev. 369. § 178. Davis v. Carter, 18 Tex. 400. §§ 85, 262. v. County Com'rs, 63 Me. 396. §g 40, 41, 62, 112. CASES CITED. XXV Davis v. Men ash a. Village), 20 Wis. 194. S 19* v. Porter, 66 « ,al. 658. § 60. v. Superior Court, 63 Cal. 581. §65. Davisson v. Board Supervisors, 70 Cal. 612. § 33. Dawson v. Thruston, 2 Hen. & M. 132. §111. Day v. Callow, 39 Cal. 593. § 135. v. Fleming Co. Court (Just.), 3 B. Mon. 198. £ 189. Dearing v. Shepard, 78 Ga. 28. §130. De Bode, In re, 6 Dowl. 776. § 89. Decatur v. Paulding, 14 Pet. 497. §§ 99, 306. De Groot, Ex parte, 6 Wall. 497. §306. De Haas v. Newaygo Ch\ Judge, 46 Mich. 12. § 193. Delacey v. Neuse R. W. Co., 1 Hawks, 274. § 168. Delaney v. Goddin, 12 Grat. 266. §111- Delgado, In re, 140 U. S. 586. § 152. Dement v. Rokker, 126 111. 174. §61. Dennett, Petitioner, 32 Me. 508. §94. Dennis, Ex parte, 48 Ala. 304. § 210. Dental Examiners v. People, 123 111. 227. § 40. Denver v. Hobart, 10 Nev. 28. §143. Detroit (City) v. Hosmer, 79 Mich. 384. § 200. Detroit, etc. R R v. Newton, 61 Mich. 33. § 200. Detroit, etc. Co. v. Gartner, 75 Mich. 360. §§ 41, 200. Detroit F. P. Co. v. Auditors (Board), 47 Mioh. 135. § 16. Devin v. Belt, 70 Md. 352. § 119. Dew v. Sweet Springs (Judges), 3 Hen. & M. 1. §§ 146, 148 242a. Dickerson v. Peters, 71 Pa, St. 53. §116. Dickson, Ex parte, 64 Ala. 188. §203. Diggs, Ex parte, 52 Ala. 381. § 148. Diggs v. Prieur, 11 Rob. 54. § 219. Dillon v. Barnard, 21 Wall. 430. §269. Dinwiddie (Just.) v. Chesterfield (Just), 4 Call, 556. §282. Directors (Board) v. Wolfley (Ariz.), 22 Pac. Rep. 383. § 94. District Twp. v. Ind. District, 72 Iowa, 687. § 62. Dixon v. Field. 10 Ark. 243. § 204. v. Judge Second Dist., 4 Mo- 286. § 189. Doolittle v. Branford (Selectmen), 59 Conn. 402. §§ 238, 240, 246. v. County Court, 28 W. Va. 158. §§ 47, 286, 322. Douglas v. Chatham (Town), 41 Conn. 211. §257. Dove v. Ind. Sch. Dist., 41 Iowa, 689. §§ 61, 115. Doyle v. Raleigh, 89 N. C. 133. § 148. Draper v. Noteware, 7 Cal. 276. §§ 57, 60, 126. Drew v. McLin. 16 Fla. 17. §§ 179, 248, 297. 319, 322. Driscoll v. Jones (S. Dak., 1890), 44 N. W. Rep. 726. §§ 142, 152, 154. Dryden v. Swinburne, 20 W. Va. 89. § 189. Dublin (Dean) v. Dowgatt, 1 Peere Williams, 348, 351. §309. Dubordieu v. Butler, 49 Cal. 512. § 135. Du Bose, Ex parte. 54 Ala. 278. § 51. Dubuque, etc. R R, Ex parte, 1 Wall. 69. § 189. Dudley, Ex parte, 79 Ala. 187. § 189. Duffitt v. Crozier, 30 Kans. 150. §189. XXVI CASES CITED. Dunbar v. Frazer, 78 Ala. 538. §119. Duncan v. Louisville (Mayor), 8 Bush, 98. § 109. Dunklin Co. v. Dunklin Dist. Ct, 23 Mo. 449. § 187. Dunphy v. Belden, 57 Cal. 427. §204. Duperier v. Iberia Parish (Pol. Jury). 31 La. An. 709. §§ 20, 132. Durant v. Washington Co. (Sup'rs), Woolw. 377. § 303. Durham v. Monumental S. M. Co., 9 Oreg. 41. §§10,13,160. E. Early v. Mannix, 15 Cal. 149. § 212. East Saginaw v. Saginaw Co. Treas., 44 Mich. 273. § 134. • Eby v. School Trustees, 87 Cal. 166. §64. Echols, Ex parte, 39 Ala. 698. § 107. Edmunds, Ex parte, L. T. R, 25 N. S. 705. § 126. Education (Board) v. Runnels, 57 Mich. 46. § 16. Edwards v. United States, 103 U. S- 471. §239. Effingham v. Hamilton, 68 Miss. 523 §§ 66, 115. Elder v. Washington Ter., 3 Wash. Ter. 438. §§17,53,54. Electric R. R.v. Grand Rapids (City), 84 Mich. 257. § 67. Elkins v. Athearn, 2 Denio, 191. §187. Ellair v. Judge, 46 Mich. 496. § 200. Ellicott v. Levy Court, 1 Har. & J. 359. §79. Elliott, Ex parte, 33 S. C. 602. § 181. Ellis v. Bristol Co. (Com'rs), 2 Gray, 370. §§140,182. Ellison v. Raleigh, 89 N. C. 125. §148. Elston, Ex parte, 25 Ala. 72. § 199. Emory v. State, 41 Md. 38. § 159. Enfield v. Hills, 2 Lev. 236. § 268. Erd v. Bavarian Assoc, 67 Mich. 233. § 168. Essex Co. R. R. v. Lunenburgh (Town), 49 Vt. 143. § 128. Etheridge v. Hall, 7 Port. 47. §§ 53, 62, 190, 192, 305. Eufaula (City Council) v. Hickman, 57 Ala. 338. §§ 129, 237, 303. Evans v. Hart of Oak B. Assoc, 12 Jur. (N. S.) 163. §§ 74, 173. v. McCarthy, 42 Kans. 426. §105. v. Thomas, 32 Kans. 469. §§ 51. 62. v. Philadelphia Club, 50 Pa. St. 107. §§ 166, 168, 173, 261, 322. Eve v. Simon, 78 Ga. 120. § 30. Everitt v. People, 1 Caines, 8. § 297. Ewing v. Cohen, 63 Tex. 482. §§ 29, 46, 51, 201, 202, 204, 205, 313. Excelsior, etc. Assoc, v. Riddle, 91 Ind. 84. §§ 51, 174. Eyerly v. Jasper Co., 72 Iowa, 149. §234 F. Falk v. Strother, 84 Cal. 544. § 126. Farnsworth v. Boston (City), 121 Mass. 173. § 235. v. Kalkaska Co., 56 Mich. 640. §285. Farrell v. King, 41 Conn. 448. §§ 234, 242. Far well, Petition of, 2 N. H. 123. §212. Fasnacht v. German L. Assoc, 99 Ind. 133. § 165. Fellows v. Tait, 14 Wis. 156. § 194. Felts v. Memphis (Mayor), 2 Head, 650. §§ 142, 148, 155, 233. Firemen's Ins. Co., Ex parte, 6 Hill, 243. § 160. v. Baltimore (Mayor), 23 Md. 296. § 159. CASES CITED. XXV11 Fish v. "VVeatherwax, 2 John. Cas. 215. § 221. Fisher v. Charleston (City), 17 W. Va. 595. §§ 130, 132, 224, 227, 240, 245, 249, 250, 252, 253, 255, 269, 289. v. Charleston (Mayor) 17 W. Va. 628. §§ 130, 132, 224, 250, 253,254, 262, 263,291,296. Fisk v. Cuthbert, 2 Mont. 593. § 105. Fitch v. McDiarmid, 26 Ark. 482. §§ 51, 62. Flagg v. Palmyra (Town), 33 Mo. 440. 8 129. Fleming, Ex parte, 4 Hill, 581. § 82. Fleming, Ex parte, 2 Wall. 759. §255. Fletcher v. Ren f roe, 56 Ga. 674 §103. Flippen, Ex parte, 94 U. S. 348. §196. Floral, etc. Co. v. Rives, 14 Nev. 431. §203. Fogle v. Gregg. 26 Ind. 345. § 53. Foote v. Myers, 60 Miss. 790. § 278. v. Noxubee Co. (Sup'rs), 67 Miss. 156. §111. Ford v. Cartersville (Mayor), 84 Ga. 213. §§127,230. Foreman v. Murphy, Penn. 1024. §212. Foster v. Redfield, 50 Vt. 285. § 187. v. White, 86 Ala. 467. § 161. Fowler v. Pierce, 2 CaL 165. §§ 65, 104, 105. Fox v. Whitney, 32 N. H. 408. § 310. Francisco v. Manhattan I. Co., 36 Cal. 283. § 220. Freas v. Jones, 16 N. J. L. 358. § 205. Frederick v. Mecosta Cir. Judge, 52 Mich. 529. § 189. Free Press Assoc, v. Nichols, 45 Vt. 7. §§ 56, 102, 105, 117. Freeman v. New Haven (Select- men), 34 Conn. 406. § 178. Fremont v. Crippen, 10 CaL 211. §§ 1, 21, 51, 53. French, Ex parte, 100 U. S. 1. § 201. French v. Cowan, 79 Me. 426. §§ 140, 143. Freon v. Carriage Co., 42 Ohio St 30. §§ 13, 49, 55, 160. Frey v. Michie, 68 Mich. 323. §§ 143, 290. Frisbie v. Fogg, 78 Ind. 269. §§ 23, 154. v. Wythe Co. (Just), 2 Va. Cas. 92. § 110. Fritz v. Muck, 62 How. Pr. 69. §§ 157, 166. Frost v. Chester (Mayor), 5 El. & Bl. 531. § 138. Fuller v. Plainfield Acad. School, 6 Conn. 532. §§ 49, 166, 237, 269. Fulton v. Hanna, 40 CaL 278. § 84. Fry v. Montgomery Co. (Com'rs), 82 N. C. 304. §§ 245, 298. v. Reynolds, 33 Ark. 450. §234 G. Gaal v. Townsend, 77 Tex. 464 §§ 148, 234a. Gaines v. Thompson, 7 Wall. 347. §100. Galbraith v. Green, 13 S. & R 85. §193. Galena (City) v. Amy, 5 WalL 705. §130. Galveston, etc. R. R. v. Gross, 47 Tex. 428. §§ 65, 106. Gardner v. Haney, 86 Ind. 17. § 51. Garland, Ex parte, 42 Ala. 559. §199. Garlington, Ex parte, 26 Ala. 170. §210. Garnett v. Stacy, 17 Mo. 601. § 212. Garrabrant v. McCloud, 15 N. J. L. 462. § 206. Gas Light Co. v. Colliday, 25 Md. 1. §27. Gay v. Gilmore, 76 Ga. 725. § a xx vm CASES CITED. Gayle v. Owen Co. Court, 83 Ky. 61. § 43. Gee v. Alabama, etc. Co., 13 Ala. 579. § 199. Gephard, In re, 1 John. Cas. 134. §195. German R. Church v. Com., 3 Pa. St. 282. §§ 169, 176. George's Creek, etc. Co. v. Alle- ghany Co. (Com'rs), 59 Md. * 255. §§ 51, 66, 87, 130, 314. Georgia v. Stanton, 6 Wall. 50. §61. Geter v. Com'rs, 1 Bay, 354. §§ 147, 148, 275. Gibbs v. Bartlett, 63 Cal. 117. § 138. v. Hampden Co. (Com'rs), 19 Pick. 298. § 111. Giboney v. Rogers, 32 Ark. 462. §189. Gilbert v. Moody (Idaho, 1891), 25 Pac. Rep. 1092. §§ 104, 105. v. Niagara Co. (Judges), 3 Cow. 59. § 187. Gillespie v. Wood, 4 Humph. 437. §60. Gilman v. Bassett, 33 Conn. 298. §§ 61, 62, 115. Glalon v. Fairbairn, 30 Low. Can. Jurist, 323. § 178. v. Fairbairn, 31 Low. Can. Jurist, 48. § 178. Goff v. Wilson, 32 W. Va. 393. §97. Goheen v. Myers, 18 B. Mon. 423. §§ 46, 47, 205. Golden v. Elliott, 13 Kans. 92. § 87. Golden C. Co. v. Bright, 8 Colo. 144. §246. Gooch v. Gregory, 65 N. C. 142. §§ 85, 130. Goodell, Ex parte, 14 John. Cas. 325. §§ 124, 251. Goodwin v. Glazer, 10 Cal. 333. §122. Goolsby, Ex parte, 2 Grat 575. §209. Gordon v. Longest, 16 Pet. 97. §2520. v. Winchester, 12 Bush, 110. §27. Gorgas v. Blackburn, 14 Ohio, 252. §§ 239, 274. Gormley v. Day, 114 111. 185. §§ 66, 75. Graham v. Norton, 15 Wall. 427. §217. v. Parham, 32 Ark. 676. § 218. v. People, 111 111. 253. § 189. Grant, Ex parte, 6 Ala. 91. § 213. v. Davenport (City), 36 Iowa, 396. § 132. Grantham, In re, 4 D. & L 427. §247. Graves, Ex parte, 61 Ala. 381. § 209. Gray v. Barton, 62 Mich. 186. §200. v. Saginaw Co. (Cir. Judge), 49 Mich. 513. § 87. v. State, 72 Ind. 567. §§ 30, 93. Great Western R. R. v. Queen, 1 El. & Bl. 874. § 159. Greathouse v. Jameson, 3 Colo. 397. §208. Green, In re, 141 U. S. 325. § 216. v. African M. E. Soc, 1 S. & R. 254. § 49. v. Purnell, 12 Md. 329. § 104. Greene County v. Daniel, 102 U. S. 187. §§ 217, 218. Greener v. Moore, 6 Colo. 526. §§ 57, 60. Gregg v. Pemberton, 53 Cal. 251. §§ 295, 305. Gresham, Ex parte, 82 Ala. 359. § 187. Grier v. Shakleford, 3 Brev. 491. §§ 184, 213, 313. Griffin v. Wakelee, 42 Tex. 513. § 309. Grigsby v. Bowles, 79 Tex. 138. §215. Groome v. Gwin, 43 Md. 572. § S3. Gulick v. New, 14 Ind. 9a § 118. CASES CITED. XXIX II. Haight v. Turner, 2 John. 370. §247. Haines v. Commonwealth, 99 Pa. St. 410. § 191. v. Saginaw Co., 87 Mich. 237. §64. Hale v. Haselton. 21 Wis. 320. § 193. v. Eisley, 69 Mich. 596. § 68. Hale (Com'rs Highways) v. People, 73 111. 203. § 53. Hall v. Audrain Co. (Court), 27 Mo. 329. § 208. v. Crossman, 27 Vt. 297. §§ 66, 75, 246. v. People, 57 111. 307. §§ 116, 230. v. Somersworth (Selectmen), 39 N. H. 511. §§10,115. v. Steele, 82 Ala. 562. § 60. v. Stewart. 23 Kans. 396. §§ 57, 122, 180. Ham v. Toledo, etc. R R, 29 Ohio St. 174. § 83. Hambleton v. Dexter (Town), 89 Mo. 188. §§ 253, 255. Hamilton v. State, 3 Ind. 452. §§ 127, 230. v. Tutt, 65 Cal. 57. § 212. Hammar v. Covington (City), 3Metc. (Ky.) 494. §§ 116, 229, 232. Hancock v. Perry (Dist Town.), 78 Iowa. 550. §§ 115, 230. Hangen v. Albina, etc. Co. (Oreg., 1891), 28 Pac. Rep. 244. § 27. Hanlin v. Ind. District, 66 Iowa, 69- §117. Hannon v. Halifax (Com'rs), 89 N. C. 123. § 144. Haralson, Ex parte, 75 Ala. 543. §199. Hardcastle v. Maryland, etc. R R, 32 Md. 32. § 82. Hardee v. Gibbs, 50 Miss. 802. §§222, 233, 238, 246, 253, 255, 257, 258, 270, 272, 304, 305. Hargnell v. Lafayette B. Soc, 47 Mich. 648. § 158. Harkins v. Sencerbox, 2 Minn. 344. §254. Harl v. Pottawattamie, etc. Co., 74 Iowa. 39. § 174. Harmon v. Dreher, 1 Speer's Eq. Cas. 87. § 176. Harpending v. Haight, 39 Cal. 189. §93. Harrington v. Holler, 111 U. S. 796. §203. v. Berkshire Co. (Com'rs), 22 Pick. 263. § 116. Harris, Ex parte, 52 Ala. 87. §§ 29, 43, 56, 143. Harrison v. Emmerson, 2 Leigh, 764. § 189. v. Simonds, 44 Conn. 318. §§ 66, 67, 173. v. Williams, 4 D. & R 820. §§ 14, 155. Harrison S. T. v. McGregor, 96 Ind. 185. §51. Hart v. Circuit Judge, 56 Mich. 592. §205. Hartman v. Greenhow, 102 U. S. 672. §§ 62, 305, 309. Hartranft's Appeal, 85 Pa. St 433. §94. Hartshorn v. Ellsworth (Ascess.), 60 Me. 276. §§ 260, 262. Harwood v. Marshall, 9 Md. 83. §§ 146, 274, 284, 288. Haskins v. Scott Co. (Sup'rs), 51 Miss. 406. §§ 232, 269. Hatch v. City Bank, 1 Rob. 470. § 161. Hawes v. White. 66 Me. 305. § 124. Hawkins v. Governor, 1 Ark. 570. §§ 94, 99, 102. v. Hardin, 35 111. Ap. 25. § 245. v. Kercheval, 78 Tenn. 535. §120. v. More, 3 Ark. 345. §§ 262, 269, 319, 322. Hayes, Ex parte (Ala.. 1891), 9 South. Rep. 156- §§ 37, 199. XXX CASES CITED. Haymore v. Yadkin (Com'rs), 85 N. C. 268. §§ 51, 62, 314. Hays, Ex parte, 26 Ark. 510. §§ 29, 56, 187. Heath, Ex parte, 3 Hill, 42. § 178. Heckart v. Roberts, 9 Md. 41. § 232. Heffner v. Commonwealth, 28 Pa. St. 108. §§ 56, 229. Heilbron v. Superior Court, 72 Cal. 96. § 187. Heine v. Levee Commissioners, 19 Wall. 655. § 3. Hemphill v. Collins, 117 I1L 396. §201. Hempstead v. Underhill, 20 Ark. 337. § 106. Hempstead County v. Grave, 44 Ark. 317. § 187. Hendee v. Cleveland, 54 Vt. 142. §189. Henderson, Ex parte, 84 Ala. 36. §189. Henderson, Ex parte, 6 Fla. 279- §§ 203, 213. Hendree, Ex parte, 49 Ala. 360. §201. Hendricks v. Johnson, 45 Miss. 644. §§ 135, 281. Henry, Ex parte, 24 Ala. 638. §§ 187, 199. Henry v. Taylor, 57 Iowa, 72. §§ 30. 48, 111. Herteman, In re, 73 Cal. 545. § 190, Hewell v. Lane, 53 Cal. 213. § 123. Hewitt v. Craig, 86 Ky. 23. § 244. v. Judge of Probate, 67 Mich. 1. §261. Hibernia F. E. Co. v. Common- wealth, 93 Pa. St. 264. §166. Higgins v. Chicago (City), 18 111. 276. § 129. Highway Com'rs v. People, 66 111. 339. § 57. v. People, 73 III 203. § 116. v. People, 99 111. 587. § 57. Hill v. Goodwin, 56 N. II. 473. §114. v. Worcester, 4 Gray, 414. §116. Hillis v. Ryan, 4 G. Greene, 78. §135. Hitchcock v. Hampden Co. (Com'rs), 131 Mass. 519. §116. Hoard, Ex parte, 105 U. S. 578. §g 201. 220. Hockett v. State, 105 Ind. 250. § 25. Hogan v. Alston. 9 Ala. 627. § 199. Hogue v. Fanning, 73 Cal 54. §212. Holland v. State. 23 Fla. 123. § 231. Holliday v. Henderson. 67 Ind. 103. § 105. Hollis v. Brandon, 1 Bos. & Pul. 36. §247. Hollister v. Lucas Co. Ct. (Judges), 8 Ohio St. 201. §§ 189, 237. Hollon Parker, Petitioner, 131 U. S. 221. §§ 187, 203, 205, 240. Hommerich v. Hunter, 14 La. An. 225. § 103. Hon v. State, 89 Ind. 249. §§ 108, 134. Hoole v. Kinkead, 16 Nev. 217. §§ 30. 31, 37, 117, 313. Hosier v. Higgins Town Board, 45 Mich. 340. §§ 130, 291. Hough v. Western T. Co., 1 Biss. 425. § 220. Houston v. People, 55 111. 398. § 114. Houston (City) v. Emery, 76 Tex. 321. § 237. Houston, etc. R. R. v. Randolph, 24 Tex. 317. §§ 254, 255. Hovey v. State, 127 Ind. 588. §§ 93, 94. Howe v. Crawford Co. (Com'rs), 47 Pa, St. 361. §116. Howell v. Crutchfield, Hemp. 99. §189. Hower's Appeal, 127 Pa, St 134. §242. CASES CITED. XXXI Howland v. Eldredge, 43 N. Y. 457. §313. Hoxie v. Somerset Co. (Com'rs), 25 Me. 333. £ 254. Hoyt, Ex parte, 13 Pet. 279. §§ 196, 204, 216. Huckabee, Ex parte, 71 Ala. 427. §56. Hudmon v. Slaughter, 70 Ala. 546. §179. Hudson v. Daily, 13 Ala, 722. § 199. Huff v. Kimball, 39 Ind. 411. § 256. v. Knapp, 5 N. Y. 65. §§ 135, 136. Huffmau v. Mills, 39 Kans. 577. §154. Hughes v. Craven Co. (Com'rs), 107 N. C. 599. § 130. Hull v. Oneida Co. (Sup'rs), 19 John. 259. § 12G. v. Reilly (Mich.. 1891), 49 N. W. Rep. 869. § 200. Humbert v. Dunn, 84 CaL 57. §104. Humboldt Co. v. Churchill Co. (Com'rs), 6 Nev. 30. §§ 65, 111, 224. Huntington v. Smith, 25 Ind. 486. §130. Hurn, Ex parte (Ala., 1891), 9 South. Rep. 515. § 199. Hurst's Case, 1 Lev. 75. § 195. Hussey v. Hamilton, 5 Kans. 462. §§ 23, 24, 156. Hyatt v. Allen, 54 CaL 353. §§ 127, 230. Illinois C. R R. v. Rucker, 14 111. 353. §§ 109, 189. Illinois, etc. Society v. Baldwin. 86 111. 479. § 168. Illinois State Hospital v. Higgins, 15 111. 185. § 18. Indianapolis v. McAvoy, 86 Ind. 587. § 51. Indianapolis, etc. R. R. v. State, 37 Ind. 489. § 159. Ing v. Davey, 2 Lea. 276. § 215. Ingerman v. State (Indiana, 1891), 27 N. E. Rep. 499. §§ 18, 224, 257. Insurance Co. v. Comstock, 16 Wall. 258. §§ 205. 216. v. Wilder, 40 Kans. 561. §§ 30, 37. Ipswich, Inhabitants of, Petition- ers, 24 Pick. 343. § 116. Iron Companies v. Pace, 89 Tenn. 707. §79. Irving v. Askew, 20 L. T. R (N. S.) 584. § 223. Jack v. Moore, 66 Ala. 184. § 126. Jameson v. Hudson, 82 Va. 279. §146. Jamison v. Reed, 2 G. Greene, 394. §194. Jansen v. Davison, 2 John. Cas. 72. §201. Jared v. Hill, 1 Blackf. 155. § 189. Jayne v. Drorbaugh, 63 Iowa, 711. §178. Jefferson Co. v. Arrghi, 51 Miss. 667. § 130. Johnes v. Auditor of State, 4 Ohio St. 493. § 263. Johnson, Ex parte, 3 Cow. 371. §§ 33, 187. Johnson v. Campbell, 39 Tex. 83. § 135. v. Dick, 69 Mich. 108. §§ 212, 242a. v. Glascock, 2 Ala. 519. § 189. v. Lucas, 11 Humph. 306. § 60. v. Mann, 77 Va. 265. § 148. v. Smith, 64 Ind. 275. §§ 134, 253. v. Ward. 82 Ala. 486. § 67. Johnston v. State, 128 Ind. 16. §§ 181, 182, 185. xxxn CASES CITED. Joint F. H. School v. Green Grove (Town), 77 Wis. 532. § 114. Jones v. Allen, 13 N. J. *L. 97. §§ 204, 205. v. Jefferson City, 66 Tex. 576. §239. v. Moore Co. (Com'rs), 106 N. C. 436. §§ 40, 119. Judd v. Driver, 1 Kans. 455. §§ 61, 213. Justice and Jones, 1 Barn. 280. §204. K. Kaine v. Commonwealth, 101 Pa. St. 490. §§ 51, 53. Karcher v. Supreme Lodge, 1S7 Mass. 368. § 169. Kaye v. Kean, 18 B. Mon. 839. §309. Keller v. Hyde, 20 Cal. 593. § 135. Kelley v. Milan, 127 U. S. 139. §129. Kelly v. Edwards. 69 Cal. 460. § 143. Kemerer v. State, 7 Neb. 130. §§126, 222,255,291. Kendall v. Lassiter, 68 Ala. 181. §201. v. Stokes, 3 How. 87. § 311. v. United States, 12 Pet. 524- §§1, 11, 62.92,100,101,213, 217, 219. Kennebunk T. Bridge (Proprietors), Petitioners, 11 Me. 263. § 116. Kennedy v. Board of Education, 82 Cal. 483. §§ 16, 22. v. Woolfolk, 1 Overt. 453. § 187. Kent v. Dickiuson, 25 Grat. 817. §203. Kentucky v. Denison, 65 U. S. 66. §§ 47, 61, 62, 219. Keokuk (City) v. Merriam, 44 Iowa, 432. §§ 109, 154, 155. Kidder v. Morse, 26 Vt 74 § 254. Kimball v. Lamprey, 19 N. H. 215. §§ 23, 154. v. Union Water Co., 44 CaL 173. §160. King, Ex parte, 27 Ala. 387. § 199. King v. See Rex v. King v. Hampton, 3 Hayw. 59. §215. King and Owen, Skin. 669. §§ 265, 266. King William (Just.) v. Munday, 2 Leigh, 165. §§ 55, 62. Kirk v. Cole, 3 Mac Arthur, 71- §212. Kisler v. Cameron, 39 Ind. 488. §§ 178, 183. Kleiber v. McManus, 66 Tex. 48. §§ 204, 261. Klein v. Smith Co. (Com'rs), 54 Miss. 254. §§ 130, 314. Klokke v. Stanley, 109 111. 192. §§ 66, 75. Knarr's Petition, 127 Pa. St. 554. §§ 188, 204. Knight v. Ferris, 6 Houst. 283. §§ 234a, 269. Knox Co. (Board Com'rs) v. Aspin- wall, 24 How. 376. §§ 225, 252. Koon, Ex parte, 1 Denio, 644. §§ 187, 201. Koonce v. Jones Co. (Com'rs), 106 N. C. 192. § 111. Labette Co. (Com'rs) v. United States, 112 U.S. 217. §§217. 218, 234, 235, 237. Ladd v. Tudor 3 W. & M. 325. § 219. Lafayette (City) v. State, 69 Ind. 218. §§ 113, 246, 322. Lagrange Co. (Com'rs) v. Cutler, 7 Ind. 6. § 111. Laird v. Abrahams, 15 N. J. L. 22. §212. CASES CITED. XXXU1 Lake v. King, 16 Nev. 215. § 196. Lake Co. (Com'rs) v. State, 24 Fla. 263. § 221. Lamar v. Wilkins. 28 Ark. 34. §§ 178, 241. Lamb v. Lynd, 44 Pa. St. 336. §113. Lamphere v. Grand Lodge, 47 Mich. 429. §§ 158, 166. Lancaster Co. (Com'rs) v. State. 13 Neb. 523. § 126. Langdon, etc. R R, In re, 45 Up. Can. Q. B. 47. § 68. Lansing v. City Treasurer, 1 Dill. 523. § 218. Larkin v. Harris, 36 Iowa, 93. §§ 57, 242«. Lavelle v. Soucy, 96 111. 467. § 255. Lawrence, Ex parte, 34 Ala. 446. § 189. Lawrence v. Hanley, 84 Mich. 399. §155. v. Ingersol, 88 Tenn. 52. § 142. Layton v. State, 28 N. J. L. 575. §§ 304, 305. Leach v. Fayetteville (Com'rs), 84 N. C. 829. § 130. Lee v. Harper, 90 Ala. 548. § 199. Lee County v. State, 36 Ark. 276. §§~70, 224, 232, 257, 270, 294, 305. Leech v. Harris, 2 Brewst. 571. §166. Leeds v. Atlantic City, 52 N. J. L. 332. §§ 143, 150. Legg v. Annapolis (City), 42 Md. 203. §§ 10, 43, 51, 277, 284. Leigh v. State, 69 Ala. 261. §§ 51, 56, 61, 62, 178. Le Roux v. Judge, 45 Mich. 416. § 222. Le Roy v. Slatford, 5 Mod. 316. ' § 281. Levy v. Inglish, 4 Ark. 65. §§ 212, 269, 274. Lewis v. Barclay, 35 Cal. 213. §§ 187, 313. Lewis v. Henley, 2 Ind. 332. § 223. v. Marshall Co. (Com'rs), 16 Kans. 102. §§ 178, 179, 185. v. Whittle, 77 Va. 415. §§ 10, 49, 53, 146. Life, etc. Ins. Co. v. Adams, 9 Pet. 571. §§ 123, 196, 204, 250. v. Wilson, 8 Pet. 291. §§ 189, 216. Linden v. Alameda Co. (Sup'rs), 45 Cal. 6. § 229. Lindsay v. Circuit Judge, 63 Mich. 735. § 200. v. Luckett, 20 Tex. 516. § 146. Lindsey v. Auditor of Ky., 3 Bush, 231. §§ 105, 238. Liquidation (Board of) v. McComb, 92 U. S. 531. § 98. Little v. Morris, 10 Tex. 263. §§ 187, 201. Livingston v. McCarthy, 41 Kans. 20. § 242o. v. Trinity Church (Rector), 45 N. J. L 230. §§ 173. 176. Lloyd v. Brink, 35 Tex. 1. § 189. v. Chambers, 56 Mich. 236. §201. London v. Lynn, 1 H. Black. 206. §303. v. Swallow, 2 Keb. 76. § 265. Long, In re, 14 L. J. Q. B. 146. §297. Long v. State, 17 Neb. 60. §§ 179, 253, 270, 289. Long's Case, 5 Coke. 121. § 274. Long Island R R.. In re, 19 Wend. 37. § 166. Loring, Ex parte, 94 U. S. 418. § 196. Loubat v. Le Roy, 40 Hun, 546. §169. Louis v. Brown Township, 109 U. S. 162. § 315. Louisiana v. Jumel, 107 U. S. 711. §§ 89, 98. v. Pilsbury, 105 U. S. 278. § 20. Louisville (City) v. Kean, 18 B. Mon. 9. §§40,119,237. XXXLV CASES CITED. Louisville G. Co. v. Citizens' G. Co., 115 U. S. 683. §27. Louisville Ind. School v. Louisville (City), 88 Ky. 584. § 208. Louisville, etc. R R v. State, 25 Ind. 177. § 53. Low v. Mills, 61 Mich. 35. § 200. Lowe, Ex parte, 20 Ala. 330. §§ 199, 204. Lowe v. Phelps, 14 Bush, 642. § 123. Lowell v. Boston, 111 Mass. 454. §27. Loy, Ex parte, 59 Ind. 235. § 250. Luce v. Dukes Co. (Board of Educ), 153 Mass. 108. § 179. v. Mayhew, 13 Gray, 83. §§ 178, 179, 242«. Ludlum v. Fourth Dist. Court, 9 Cal. 7. § 187. Lumbard v. Stearns, 4 Cush. 60. §27. Lusk, Ex parte, 82 Ala, 519. §§ 143, 148. Lusk v. Perkins. 48 Ark. 238. § 109. Lutterloh v. Cumberland Co. (Coni'rs), 65 N. C. 403. §§ 130, 251, 252, 259. Lyman v. Martin, 2 Utah, 136. §§ 178, 224, 253, 270, 272, 290. Lynch, Ex parte, 2 Hill, 45. §§ 55, 136. Lynch, Ex parte, 16 S. C. 32. §§ 31, 57, 65, 104, 127. Lyon v. American Screw Co., 16 R I. 472. § 161. v. Rice, 41 Conn. 245. §§ 229, 234a. M. McAleer v. Clay County, 42 Fed. R 66.-,. § 314. McBane v. People, 50 111. 503. § 61. McBride v. Grand Rapids (City), 47 Mich. 236. £ 136. v. Grand l,*apids(Com. Council). 32 Mich. 360. § 21.1 McCauley v. Brooks, 16 Cal. 11. §§ 65, 104. McClung v. Silliman, 6 Wheat. 598. §219. McConihe v. State, 17 Fla. 238. §§ 65, 138. 221, 230. McCrary v. Beaudry, 67 Cal. 120. §§ 27, 262. McCreary v. Rogers, 35 Ark. 298. §208. McCoy v. Harnett Co. (Just.), 4 Jones, 180. §§ 263, 282. v. Harnett Co'. (Just), 5 Jones, 265. § 256. McCullough, Re, 35 Up. Can. Q. B. 449. § 178. McCullough v. Brooklyn (Mayor), 23 Wend. 458. §§ 53, 109. McDearmid v. Fitch, 27 Ark. 106. §155. McDonald v. Ross-Lewin, 29 Hun- 87. § 168. McDuffie v. Cook, 65 Ala. 430. §§ 31, 118. McGee v. State, 103 Ind. 444. § 154. Mclntire v. Wood, 7 Cranch, 504. §217. McKenzie v. Ruth, 22 Ohio St. 377. §§ 253, 255. Mackey, Ex parte. 15 S. C. 322. §§ 51. 53, 62, 77, 78, 178, 184, 185, 241. Maclean v. Speed, 52 Mich. 257. § 200. McLeod v. Scott (Oreg., 1891), 26 Pac. R 1061. § 40. McMahon v. San Mateo County (Sup'rs), 46 Cal. 214. § 111. McMillen v. Smith, 26 Ark. 613. §187. Macoupin Co. Court v. People, 58 111. 191. § 222. McQueen v. Middletown M. Co., 16 John. 5. § 177. .Madison (City) v. Korbly, 32 Ind. 71. § 148. Madison (County Court) v. Alexan- der, Walker, 523. § 111. CASES CITED. XXXV Madison (County Court) v. People, 58 111. 45*6. §§ 65, 68, 270. Maddox v. Graham, 2 Mete. (Ky.) 56. §§ 129, 225, 232, 289, 290, 303. Maddox v. Neal, 45 Ark. 121. §§ 57. 75. Magee v. Calaveras County (Sup'rs), 10 Cal. 376. § 182. Magruder v. Swan, 25 Md. 173. §93. Maher v. State (Neb., 1891), 49 N. W. Rep. 436. § 115. Mahone, Ex parte, 30 Ala. 49. §§ 61, 204. Malcom v. Rogers, 5 Cow. 188. §34. Manaton's Case, Ray. 365. § 283. Mann v. Illinois, 94 U. S. 164. § £5. Mannix v. State, 115 Ind. 245. §143. Manns v. Givens, 7 Leigh, 689. §§47, 111. Manor v. McCall, 5 Ga. 522. §§ 41, 129, 186, 188. Mansfield v. Fuller, 50 Mo. 338. § 130. Many, Ex parte, 14 How. 24. § 29. Marathon (Town) v. Oregon (Town), 8 Mich. 372. § 114. Marbury v. Madison, 1 Craneh, 137. §§ 29, 92, 99, 101, 216. Marshall v. Clark, 22 Tex. 23. § 89. Marshall v. Sloan, 35 Iowa, 445. §§ 51, 53. Martin, Ex parte, 5 Ark. 371. § 212. Martin v. Ell wood, 35 Minn. 309. §115. v. Ingham, 38 Kan. 641. § 96. v. Tripp, 51 Mich. 184. §11"). Mason v. School District, 20 Vt. 487. §§78,241. Mason Co. (Sup'rs) v. Miuturn, 4 W. Va. 300. § 186. Mau v. Liddle, 15 Nev. 271. § 111. Mauran v. Smith, 8 R. I. 192. § 94. Maxey v. Mack, 30 Ark. 472. § 125. Maxton Co. (Com'rs) v. Robeson Co. (Com'rs), 107 N. C. 335. §119. Maxwell v. Burton. 2 Utah, 595. §65. v. State, 40 Md. 273. § 127. Mayor v. Lord, 9 Wall. 409. §§ 218, 237. Meadows v. Nesbit, 80 Tenn. 486. §115. Medberry v. Collins, 9 John. 345. §192. Medical, etc. Soc. v. Weatherly, 75 Ala. 248. §§ 49, 157, 166, 261. Memphis, etc. Co. v. Pike, 9 Heisk. 697. §§' 54, 160. Memphis (Merchants) v. Memphis (City), 9 Baxt 76. §218. Menard v. Shaw, 5 Tex. 334. § 60. Mendon (Inhabitants) v. Worcester County. 10 Pick. 235. §116. Merced Min. Co. v. Fremont, 7 Cal. 130. § 201. Meredith v. Supervisors, 50 Cal. 433. §143. Metsker v. Neally, 41 Kan. 112. §148. Meyer v. Dubuque (City), 43 Iowa, 592. £§270,272,294. v. Porter, 65 Cal. 67. §§ 129, 135. Michigan (City) v. Roberts. 34 Ind. 471. § 110. Michigan C. R. R. v. Tuscola Co. (Prob. Judge), 48 Mich. 638. §200. Middleton v. Low, 30 Cal. 596. § 93. Middleton's Case, Dyer, 333. § 137. Miller v. Black, 128 U. S. 50. § 101. v. Tucker Co. Ct., 34 W. Va. 285. §§201.204. Milliken v. Weatherford (City Coun.), 54 Tex. 388. §§ 51, 148, 290. Mills v. Brevoort, 77 Mich. 210. 8 200. XXXVI CASES CITED. Mills Publishing Co. v. Lavrabee. 78 Iowa, 97. § 89. Milner, Ex parte, 6 Eng. L. & Eq. 371. §§ 45, 187. Miltenberger v. St. Louis Co. Court, 50 Mo. 172. g 187. Mississippi v. Durham, 15 Dist. Col. 235. § 89. Mitchell v. Board man, 79 Me. 469. §§ 75. 229. v. Hay, 37 Ga. 581. § 123. v. Huron Co. Judge, 53 Mich. 541. § 200. v. Speer, 39 Ga. 56. § 135. Mixer v. Manistee Co. (Sup'rs), 26 Mich. 423. § 40. Mobile, etc. Co. v. Cleveland, 76 Ala. 321. §§ 39, 40, 118. Mobile, etc. R. R. v. People, 132 111. 559. § 56. Mobile & O. R. R. v. Wisdom, 5 Heisk. 125. §§ 13, 51, 53, 57, 159. Moiles v. Watson, 60 Mich. 415. §143. Montague (Lord) v. Dudman, 2 Ves. Sr. 396. §§ 3, 309. 312. Montgomery, Ex parte, 24 Ala 98. § 199. Monroe Co. v. Lee Co., 36 Ark. 378. §§ 70, 222. Monroe Co. (Sup'rs) v. State, 63 Miss. 135. § 111. Moon v. Cort, 43 Iowa, 503. §§ 116, 229. v. Welford, 84 Va. 34. § 196. Mooney v. Edwards, 51 N. J. L. 479. §§ 29, 31, 186, 187, 212. Moore v. Muse, 47 Tex. 210. § 84. v. State, 72 Ind. 358. § 212. Morgan, Ex parte, 30 Ala. 51. § 199 2 Chit 250. §§ 187, 201. 114 U. S. 174. § 189. Morgan v. Commonwealth, 55 Pa. St. 456. § 129. v. Fleming, 24 W. Va. 186. §§ 285, 286. Morgan v. Pratt Co. (Convrs), 24 Kans. 71. § 179. Morley v. Power, 73 Tenn. 691. §§ 10, 47, 115, 313. Morris, Ex parte, 11 Grat. 292. §§ 56, 212, 306, 309. Morris v. State, 94 Ind. 565. § 294. v. Womble, 30 La. An. 1312. §§ 123, 228. Morton v. Comptroller-General, 4 Rich. (N. S.) 430. §§ 46, 57, 65, 104, 227, 270, 273, 313. Moses v. Kearney, 31 Ark. 261. §230. Mossy v. Rains, 25 La. An. 623. § 66. Mottu v. Primrose, 23 Md. 482. §§ 165, 225, 237. Mount Moriah C. Assoc, v. Common- wealth, 81 Pa. St. 235. §159. Mulroy v. Knights of Honor. 28 Mo. Ap. 463. g§ 166, 168, 169. Munkers v. Watson, 9 Kans. 668. §189. Murphy v. Rceder T. Treas., 56 Mich. 505. § 285. v. Smith, 49 Ark. 37. § 135. Murray v. Stevens, 110 Mass. 95. §160. Myers v. Chalmers, 60 Miss. 772. §182. v. State, 61 Miss. 138. § 228. Myra Clarke Whitney, Ex parte, 13 Pet. 404. § 196. E". Nabor, State ex reL, 7 Ala. 459. §199. i Napa (City) v. Rainey, 59 Cal. 275. §57. Napa V. R. R. v. Napa Co. (Sup'rs), 30 Cal. 435. § 34. Napier v. Poe, 12 Ga. 170. §§ 24, 51, 313. Nash, Ex parte, 15 Q. B. 92. §§ 42, 43. CASES CITED. XXX Vll Nash v. Page, 80 Ky. 539. g 25. Needham v. Thresher, 49 Cal. 392. §135. Nelson v. Edwards, 55 Tex. 389. §§ 148, 154. Neuse, etc. Co. v. New Berne (Com'rs), 6 Jones, 204. § 281. Neuse N. Co. v. Newbern (Com'rs), 7 Jones, 275. § 75. New Haven, etc. R. R. v. State, 44 Conn. 376. §§ 88, 159, 268, 285, 304, 305. New Orleans G. Co. v. Louisiana L. Co., 115 U. S. 650. § 27. Newman, Ex parte, 81 U. S. 152. §§ 216, 232, 270, 291, 313. Newman v. Scott Co. (Just.), 1 Heisk. 787. § 290. Newport (City) v. Berry, 80 Ky. 354. §§ 30, 40, 313. Nichols v. Comptroller, 4 Stew. & Port. 154. § 104. Noble Co. (Com'rs) v. Hunt, 33 Ohio St. 169. §§ 48, 111, 290. Nohro, Ex parte, 1 B. & C. 267. §247. Norris v. Baltimore (City), 44 Md. 598. g§ 130, 135. v. Irish L. Co., 8 El. & Bl. 512. §160. North, Ex parte, 49 Ala. 385. §§ 199, 201. North P. etc. R. R. v. Gardner, 79 Cal. 213. § 123. Northington, Ex parte, 37 Ala. 496. §189. Northwestern, etc., R R. v. Jenkins, 65 N. C. 173. § 103. Norton v. Dyersburg, 127 U. S. 160. §129. o. Oakes v. Hill, 8 Pick. 47. §§ 22, 82, 83. Oglesby v. Sigman, 58 Miss. 502. §§ 179, 182, 185. Ohio v. Wood, 22 Ohio St. 537. §212. Ohio, etc. R. R. v. Wyandot Co. (Com'rs), 7 Ohio St. 278. §82. Ohio & M. R R. v. People, 120 111. 200. §§ 31, 75, 76, 164. v. People, 121 111. 483. § 51. Oliver v. Hopkins, 144 Mass. 175. §169. Olmstead v. Morris Aqueduct (Prop'rs), 47 N. J. L. 311. §27. Olney (City) v. Harvey, 50 111. 453. §130. Olsen v. Muskegon Cir. Judge, 49 Mich. 85. § 201. O'Neal v. Kelly. 72 Ala. 559. § 201. Oneida C. P. Judges v. People, 18 Wend. 79. §§ 11, 187, 196, 197, 204, 313. Opdyke, Ex parte, 62 Ala. 68. § 187. Orange (Town) v. Bill, 29 Vt. 442. §212. Orosco v. Gagliardo, 22 Cal. 83. §220. Oroville, etc. R. R v. Plumas Co., 37 Cal. 354. § 223. Ortman v. Dixon, 9 Cal. 23. § 187. Osage Valley, etc. R. R. v. Morgan Co. Ct, 53 Mo. 156. § 128. Osborn v. Clark, 1 Ariz. 397. § 187. Ostrander, Ex parte, 1 Denio, 679. §313. Ottawa (City) v. People. 48 111. 233. §§ 51, 52, 53, 116, 228, 230. Ottawa Co. (Sup'rs) v. Auditor Gen- eral, 69 Mich. 1. § 89. Otto v. Journeymen's, etc. Union, 75 Cal. 308. §§ 157, 166. P. Pacheco v. Beck. 52 Cal. 3. § 102. Page v. Clopton, 30 Grat. 415. §§ 190, 201. v. Hardin, 8 B. Mon. 648. § 47. xxxvm CASES CITED. Paine, Ex parte, 1 Hill, 665. §§ 170, 173. Palmer v. Hartford" (Village), 73 Mich. 96. § 40. v. Jones, 49 Iowa, 405. § 296. v. Stacy, 44 Iowa, 340. §§ 53, 66, 130, 225. Parker, Ex parte, 120 U. S. 737. §§ 46, 203. Parker v. Hubbard, 64 Ala. 203 §84. v. Portland, 54 Mich. 308. §§ 31, 40, 119. Parkes, Ex parte, 9 Dowl. 614. § 73. Parkinson's Case, 3 Mod. 265. § 175. Parrott v. Bridgeport (City), 44 Conn. 180. §§ 16, 21. Patrick (Dr.), Case of, 1 Keb. 286, 833 ; 2 Keb. 65 ; 1 Lev. 65. §175. Patterson v. Vail, 43 Iowa, 142. §§ 116, 242a. Peabody v. Boston School Com., 115 Mass. 383. §§ 140, 313. Pearsons, Ex parte, 1 Hill, 655. §119. Pearsons v. Ranlett, 110 Mass. 118. § 135. Peafs Case, 6 Mod. 229. § 43. Peck v. Booth. 42 Conn. 271. §§ 51, 229. v. Waddell, 17 Ohio St. 271. §179. Pees v. Leeds (Mayor), Stra. 640. g§ 237, 292. Peet v. Maccabees, 83 Mich. 92. §168. Pegram v. Cleveland Co. (Com'rs), 64 N. C. 557. § 129. v. Cleveland Co. (Com'rs), 65 N. C. 114. §'240. Peik v. Chicago, etc. R. R., 94 U. S. 164. § 25. Pender v. Herle, 3 Bro. P. C. 505. §304. Pennsylvania Co., Ex parte, 137 U. S. 451. §§ 203, 220. Pensacola T. Co. v. Western U. T Co., 96 U. S. 1. § 25. People v. Alameda Co. (Sup'rs), 45 Cal. 395. §§ 280, 285, 290. v. Albany (Sup'rs), 12 John. 414. §§ 37, 312. v. Albany, etc. R. R., 24 N. Y. 261. §§ 27a, 159. v. Allegan Cir. Judge, 29 Mien. 487. §§ 10, 31, 39, 201. v. American Institute, 44 How. Pr. 468. § 168. v. Anshei C. H. Cong., 37 Mich. 542. §§ 49, 170. v. Anthony, 129 111. 218. § 190. v. Ashbury, 46 Cal. 523. § 127. v. Attorney-General, 41 Mich. 728. § 33. v. Auditors (State), 42 Mich. 422. §105. v. Austin, 46 Cal. 520. §§ 134, 242a. v. Bacon, 18 Mich. 247. §§ 201. 214, 23S. v. Baker, 35 Barb. 105. §§ 255, 274, 285, 286, 291, 293, 294, 315. v. Barnes, 66 Cal. 594. § 212. v. Barnett (Sup'rs), 91 111. 422. §§ 297, 302. v. Barton (Assessors), 44 Barb. 148. §§ 127, 252. v. Batchellor, 53 N. Y. 128. §§ 65, 269. v. Bay Co. Cir. Judge, 41 Mich. 326. § 200. v. Bell, 4 Cal. 177. § 126. v. Benevolent Society, 3 Hun. 361. § 168. v. Bennett, 54 Barb. 480. § 127. v. Bissell, 19 111. 229. § 94. v. Bloomington (City), 63 111. 207. gg 34, 1 16, 230, 237. ' v. Board of Police. 75 N. Y. 38. §120. v. Board of Police, 107 N. Y. 235. §§ 51, 290. CASES CITED. XXXIX People v. Board of Trade, 80 111. 134. §49. v. Booth, 49 Barb. 31. § 56. v. Branch Cir. Judge, 1 Doug. (Mich.) 319. § 51. v. Brennan, 39 Barb. 522. § 109. v. Brennan, 39 Barb. 651. § 32. v. Brennan, 45 Barb. 457. § 153. v. Brinkerhoff, 68 N. Y. 259. §§ 111, 237. v. Brooklyn (City), 1 Wend. 318. § 56. v. Brooklyn (City Council), 77 N. Y. 503. §§ 79, 280. v. Brooklyn (Com. Coun.), 22 Barb. 404. § 230. v. Brooklyn (Pres.), 13 Wend. 130. §304. v. Brooks, 16 Cal. 11. § 93. v. Brooks, 57 111. 142. § 260. v. Brown, 55 N. Y. 180. §§ 76, 134. v. Budd, 117 N. Y. 1. § 25. v. Buffalo Co. (Com'rs), 4 Neb. 150. § 117. v. Buffalo Co. (Com'rs), 6 Neb. 454. § 126. v. Burrows, 27 Barb. 89. § 126. v. Cairo (City Council), 50 111. 154. § 237. v. Canal Appraisers, 73 N. Y. 443. § 109. v. Carr, 86 N. Y. 512. § 102. v. Cass Cir. Judge, 39 Mich. 407. §200. v. Central, etc. Co., 41 Mich. 166. §§ 53, 163. v. Central P. R R, 62 Cal. 506. §266. v. Champion, 16 John. 61. § 237. v. Chapin, 104 N. Y. 96. §§ 62, 87, 314. v. Chenango (Just), 1 John. Cas. 179. § 189. v. Chenango Co. (Sup'rs), 11 N. Y. 563. §§ 55, 56, 111. People v. Chenango Co. (Sup'rs), 8 N. Y. 317. § 79. v. Chicago, 53 111. 424. § 82. v. Chicago (City), 25 Ilk 48a §246. v. Chicago (Mayor), 51 HL 17. §253. v. Chicago, etc. R R, 55 IIL 95. §50. v. Chicago, etc., RR, 67111. 118. §§ 158, 159. v. Circuit Judge Third Dist, 19 Mich. 296. § 205. v. Clark Co. (Sup'rs), 50 IIL 213. §§ 55, 130. v. Cline, 63 111. 394. § 114. v. Collins, 7 Johns. 549. § 121. v. Collins, 19 Wend. 56. §§ 116, 230, 238. v. Colorado C. R. R, 42 Fed. Rep. 638. § 66. v. Columbia Co. (Sup'rs), 67 N. Y. 330. § 126. v. Columbia Co. (Sup'rs), 10 Wend. 363. § 129. v. Commissioner S. Land Office, 23 Mich. 270. § 106. v. Contracting Board, 46 Barb. 254. §§ 78, 117. v. Contracting Board, 27 N. Y. 378. §117. v. Contracting Board, 33 N. Y. 382. § 117. v. Cook, 39 Cal. 658. § 135. v. Crane, 60 Cal. 279. § 190. v. Croton Aqueduct Board, 26 Barb. 240. § 56. v. Croton Aqueduct Board, 49 Barb. 259. §§ 66, 117. v. Crotty, 93 111. 180. §§ 60, 234 . 256. v. Cullom, 100 111. 472. § 94. v. Cummings, 72 N. Y. 433. §165. v. Curtis, 41 Mich. 723. g§ 23, 124. xl CASES CITED. People v. Curyea, 16 HI. 547. § 83. v. Davis, 93 111. 133. §§ 56, 116, 255, 256, 262, 269. v. De La Guerra, 43 CaL 225. §204 v. Delaware C. Pleas. (Just), 1 John. Cas. 181. § 195. v. Delaware Co. (Sup'rs), 45 N. Y. 196. §§ 111, 126, 292. t. Dental Examiners, 110 HL 180. § 29. v. Detroit (Board Educ), 18 Mich. 400. §§ 115, 228. v. Detroit (Corn. Council), 18 Mich. 338. § 143. v. Detroit (Corn. Council), 29 Mich. 108. § 113. v. Detroit (Superior Judge), 40 Mich. 729. § 189. v. Dickson, 46 CaL 53. § 190. v. District Court, 14 Colo. 396. §§201,204. v. Dowling, 55 Barb. 197. §§62, 221. v. Dulaney, 96 111. 503. §§ 16, 67, 89. v. Dutcher, 56 111. 144 § 128. v. Dutchess C. Pleas (Judges), 20 Wend. 658. §§ 46, 187, 196. v. Dutchess, etc. R R, 58 N. \ 152. §§ 76, 159, 255, 296. v. East Saginaw, 40 Mich. 336. v. East Saginaw (Com. Council), 33 Mich. 164. § 63. v. Edmonds, 15 Barb. 529. § 135. v. Edmonds, 19 Barb. 468. § 135. v. Education Board, 127 114 613. §§ 224, 230, 290. v. Edwards, 66 III. 59. § 84 v. Elmira (Town Auditor), 82 N. Y. 80. § 126. v. Essex County (Sup'rs), 70 N. Y. 228. §§ 52, 111, 233. v. Fairbury (Town), 51 111. 149. §114 People v. Fairman, 91 N. Y. 385. §285. v. Fay, 3 Lansing, 398. § 117. v. Ferris, 76 N. Y. 326. § 43. v. Finger, 24 Barb. 341. §§ 268, 290, 292. v. Fitzgerald, 41 Mich. 2. § 313. v. Fleming, 4 Denio, 137. § 123. v. Fletcher, 2 Scam. 482. § 85. v. Fort Edward (Trustees), 70 N. Y. 28. § 128. v. Forquer, Breese, 68. §§ 33, 83. v. Fowler, 55 N. Y. 252. § 60. v. French, 102 N. Y. 583. § 120. v. Frink, 32 Mich. 96. § 135. v. Fulton (Sup'rs), 14 Barb. 52. §§ 269, 286. v. Fulton Co. (Sup'rs), 53 Hun, 254 §§280,283. v. Gale, 22 Barb. 502. § 85. v. Garnett, 130 Ilk 340. §§ 46, 202, 203, 205, 313. v. Genesee Cir. Judge, 37 Mich. 281. § 63. v. Genet, 59 N. Y. 80. §§ 68, 194 v. German, etc. Church, 53 N. Y. 103. §§ 157, 166. v. Gilmer, 10 111. 242. §§ 50, 187. v. Glann, 70 I1L 232. §§ 128, 255. v. Governor, 29 Mich. 320. §§ 94, 95, 102. v. Grand Co. (Com'rs), 6 Colo. 202. § 179. v. Green, 56 N. Y. 466. § 126. ^. Green, 64 N. Y. 499. §§ 13, 126, 307. v. Greene Co. (Sup'rs), 12 Barb. 217. §§ 53, 66, 77, 184, 185. v. Hake, 81 III 540. § 82. v. Halsey.. 37 N. Y. 344 §§ 135, 230. v. Hamilton Co., 3 Neb. 244. §253. OASES CITED. Xli People v. Harris, 9 Cal. 571. §§ 212, 281. v. Hatch, 33 I1L 9. §§ 50, 66, 94, 286. v. Hawkins, 46 N. Y. 9. § 51. v. Haws, 36 Barb. 59. § 126. v. Hays, 5 Cal. 66. § 123. v. Hayt, 66 N. Y. 606. §§ 57, 75, 234, 255. v. Head, 25 111. 325. §§ 23, 154. v. Herkimer Co. (Sup'rs), 56 Barb. 452. § 111. v. Highway Com'rs, 27 Barb. 94. §§ 81, 116. v. Highway Com'rs, 25 How. Pr. 257. § 309. v. Highway Com'rs, 52 111. 498. §292. v. Highway Com'rs, 88 111. 141. §51. v. Hilliard, 29 III 413. §§ 140, 142, 154, 178, 182,235,259. v. Holden, 91 111. 446. § 128. v. Hubbard, 22 Cal. 34.° § 212. v. Huntoorj, 71 111. 536. § 212, v. Hyde Park, 117 111. 462.^ §§ 60, 129, 222, 257. v. Inspectors State Prison, 4 Mich. 187. §§ 21, 108, 229. v. Jackson Cir. Ct. Judge, 21 Mich. 577. § 220. v. Jackson Co. (Sup'rs;, 24 Mich. 237. § 111. v. Jameson, 40 111. 93. § 190. v. Johnson, 100 111. 537. §§ 56. 57, 135. v. Judge 12th Dist, 17 Cal. 547. §65. v. Kent Cir. Ct. Judge, 38 Mich. 351. § 201. v. Ketchum, 72 111. 212. § 63. v. Kilduff, 15 111. 492. §§ 154, 155, 274. v. King, 110 N. Y. 418. § 25. v. Klokke, 92 111. 134. § 57. v. Knickerbocker, 114 111. 539. §31. People v. La Grange (Tp. Board), 2 Mich. 187. §§ 114, 252, 262, 294. v. La Salle Co. (Sup'rs), 84 111 303. § 111. v. Lawrence, 6 Hill, 244. § 135. v. Lee, 14 Cal. 510. § 192. v. Lieb, 85 111. 484. § 155. v. Livingston Co. (Sup'rs), 26 Barb. 118. § 126. v. Livingston Co. (Sup'rs), 68 N. Y. 114. §§ 130, 225. v. Loucks, 28 Cal. 68. § 85. v. McClay, 2 Neb. 7. § 123. v. McCormick, 106 111. 184 §§ 29, 286, 288. v. McLane, 62 Cal. 616. § 51. v. Macomb Co. (Sup'rs), 3 Mich. 475. §§ 32, 126. v. McRoberts, 100 111. 458. §187. v. Mahoney, 30 Mich. 100. §§ 134, 291. v. Manhattan, etc. Co., 45 Barb. 136. § 162. v. Masonic B. Ass'n, 98 111. 625. §§ 49, 68. v. Masonic, etc. Ass'n, 126 N. Y. 615. § 174. v. Matteson, 17 111. 167. § 143. v. Mead, 24 N. Y 114. § 109. v. Mechanics' Aid Sou, 22 Mich. 86. §§ 166, 170. v. Medical Soc. of Erie, 24 Barb. 570. §§ 49, 166. v. Medical Soc. of Erie, 32 N. Y. 187. §§ 49, 172. v. Metropolitan Pol. Board, 26 N. Y 316. §§ 62, 292. v. Miner, 37 Barb. 466. § 124. v. Miner, 46 111. 384. § 126. v. Monroe Co. (Probate Judge), 16 Mich. 204. § 187. v. Monroe Oyer & Terminer, 20 Wend. 108. §§ 78, 211. v. Moore, 29 Cal. 427. § 201. v. Mott, 1 How. Pr. 247. § 161. ylii CASES CITED. People v. Mount Morris (Town) (I1L, 1891), 27 N. E. Rep. 757. §224 v. Musical, etc. Union, 118 N. Y. 101. §§ 168, 310. v. Muskegon Circuit Judge, 40 Mich. 63. §§ 187, 204. v. Nash, 47 Hun, 542. § 16. v. Newton, 126 N. Y. 656. § 72. v. New York, 3 John. Cas. 79. §143. v. New York (Com. Assoc), 18 Abb. Pr. 271. § 166. v. New York (Com. Coun.), 3 Keyes, 81. §237. v. New York (Comptroller), 77 N. Y. 45. § 126. v. New York, etc. R R, 22 Hun, 533. §§ 27, 158, 162. v. New York. etc. R R, 28 Hun, 543. §§ 27, 162. v. New York, etc. R R, 104 N. Y. 58. §§ 27, 158. v. New York (Mayor), 10 Wend. 393. §§ 51, 53, 55, 313. v. New York (Mayor), 25 Wend. i 680. § 136. v. New York (Sup'rs), 1 Hill, 362. § 126. v. New York (Sup'rs), 32 N. Y. 473. §126. v. New York (Sup. Court), 18 Wend. 675. § 197. v. New York (Sup. Court), 19 Wend. 701. § 187. v. Niagara C. Pleas, 12 Wend. 246. §197. v. Northern P. R. R, 18 Fed. Rep. 471. §§ 14, 161. v. Norton, 16 Cal. 436. § 189. v. Nostrand, 46 N. Y. 375. §§ 154, 262, 297. v. Ohio Grove Town, 51 111. 191. §§111, 274. v. Olds, 3 Cal. 167. § 143. v. Olmsted, 45 Barb. 644. §127. People v. Oneida C. Pleas (Judges), 21 Wend. 20. § 197. v. Onondaga Co. (Board Can- vas.) (N. Y, 1891), 29 N. E. Rep. 327. § 179. v. Onondaga Co. (Sup'rs) (N. Y, 1891), 29 N. E. Rep. 355. §179. v. Ontario (Sup'rs), 85 N. Y. 323. §269. v. Opdyke, 40 Barb. 306. § 109. v. Otsego Co. (Sup'rs), 53 Barb. 564. §§ 111, 127. v. Otsego Co. (Sup'rs), 51 N. Y. 401. § 34 v. Pacheco, 29 Cal. 210. § 228. v. Pacific Mail Steam. Co., 50 Barb. 280. § 161. v. Palmer, 52 N. Y. 83. § 135. v. Parker V. C. Co., 10 How. Pr. 543. § 160. v. Pearson, 1 Scam. 458. §§ 204, 252. v. Pearson, 2 Scam. 189. §§ 190, 248, 261, 266, 319, 322. v. Pearson, 3 Scam. 270. §§ 193, 266. v. Perry, 13 Barb. 206. § 39. v. Police Board, 35 Barb. 527. §§ 74, 120. v. Police Board, 35 Barb. 535. §120. v. Police Board, 35 Barb. 544 §120. v. Police Board, 35 Barb. 644 §120. v. Police Board, 35 Barb. 651. §120. v. Police Board, 46 Hun, 296. §282. v. Police Board, 107 N. Y. 235. §56. v. Police Commissioners, 108 N. Y 475. § 310. v. Pratt, 28 Cal. 166. § 196. v. Prendergast, 117 111. 588. §208. CASES CITED. xliii People v. Pritchard, 19 Mich. 470. §§ 285, 310. v. Ransom, 2 N. Y. 490. § 225. v. Reis, 76 Cal. 269. § 23. v. Rice (N. Y., 1891), 29 N. E. Rep. 355. § 179. v. Richmond Co. (Sup'rs), 20 N. Y. 252. § 225. v. Rives, 27 111. 242. §§ 140, 182. v. Rochester, etc. R. R, 76 N. Y. 294. § 302. v. Rome, etc. R. R, 103 N. Y. 95. §§ 27a, 159, 229. v. Russell, 46 Barb. 27. § 187. v. Saint Franciscus, etc. Soc, 24 How. Pr. 216. §§ 166, 168. v. Saint Luke's Church, 7 Cush. 226. § 23. v. Salomon, 46 111. 333. § 270. v. Salomon, 46 111. 415. §§ 52, 56. v. Salomon, 51 111. 37. § 82. v. Salomon, 54 111. 39. §§ 65, 127. v. San Francisco (Sup'rs), 11 Cal. 42. § 126. v. San Francisco (Sup'rs), 20 Cal. 591. § 65. v. San Francisco (Sup'rs), 21 Cal. 668. §§ 113, 130. v. San Francisco (Sup'rs), 27 Cal. 655. §§ 282, 285, 291. v. San Francisco (Sup'rs), 36 Cal. 595. §§ 116, 229. v. San Luis Obispo Co. (Sup'rs), 50 Cal. 561. § 35. v. Scates, 3 Scam. 351. §§ 203, 262. v. Schiellein, 95 N. Y. 124. § 185. v. Schools (Board Trustees), 111 I1L 171. § 108. v. Schuyler, 69 N. Y. 242. § 126. v. Schuyler, 79 N. Y. 189. § 135. v. Scrugham, 20 Barb. 302. §150. v. Secretary of State, 58 111. 90. §§ 103, 105, 234a, 235. People v. Sexton, 24 Cal. 78. § 187. v. Sexton, 37 Cal. 532. § 187. v. Smith, 77 N. Y. 347. § 120. v. Spruance, 8 Colo. 307. § 57. v. State Auditors, 42 Mich. 422. §§ 53, 94, 102, 229. v. State Canvassers (Board), (N. Y, 1891), 29 N. E. Rep. ■ 355. § 179. v. State Insurance Co., 19 Mich. 392. § 159. v. State Prison Inspectors, 4 Mich. 187. § 51. v. State Treasurer, 23 Mich. 499. §103. v. State Treasurer, 24 Mich. 468. §§ 10, 13, 51, 55, 82, 103, 311, v. Steele, 2 Barb. 397. § 21. v. Stephens, 2 Abb. Pr. (N. S.) 348. «§ 65, 143. v. Stout, 23 Barb. 338. § 135. v. Straight, 128 N. Y. 545. § 152. v. Sullivan Co. (Sup'rs), 56 N. Y. 249. §§ 230, 253, 269, 281. v. Supervisor, 100 111. 332. §238. v. Swift, 59 Mich. 529. §§ 36, 201, 203. v. Syracuse (Com. Coun.), 78 N. Y. 56. § 87. v. Thistlewood, 103 HI. 139. §§ 245, 252. v. Thompson, 25 Barb. 73. § 136. v. Thompson, 66 Cal. 398. § 82. v. Thompson, 99 N. Y. 641. § 16. v. Throop, 12 Wend. 183. §§ 161, 234, 237. v. Tioga Com. Pleas, 1 Wend. 291. § 247. v. Town Auditors, 74 N. Y. 310. § 126. v. Town Auditors, 75 N. Y. 316. §126. v. Tremain, 29 Barb. 96. §§ 6(i, 105, 126. v. Troy (Com. Coun.), 78 N. Y. 33. §§ 29, 31, 32, 46, 77. xliv CASES CITED. People v. Turner, 1 Cal. 143. § 40. v. Ulster Co. (Judges), 1 John. 64. § 266. v. Ulster Co. (Sup'rs), 24 Mich. 237. § 111. v. University (Regents), 4 Mich. 98. §§ 70, 229. v. Van Buren Co. (Judge), 41 Mich. 725. § 192. v. Walker, 9 Mich. 328. §§ 161, 322. v. Walsh, 117 N. Y. 621. § 25. v. Warfield, 20 111. 159. § 82. v. Washington C. Pleas (Judges), 2 Caines, 97. § 190. v. Wayne Cir. Court, 20 Mich. 220. § 187. v. Wayne Cir. Court, 32 Mich. 259. § 190. v. Wayne Cir. Judge, 22 Mich. 493. §200. v. Wayne Cir. Judge, 27 Mich. 303. § 206. v. Wayne Cir. Judge, 30 Mich. 98. §201. v. Wayne Cir. Judge, 39 Mich, 115. § 200. v. Wayne Co. (Auditors), 5 Mich. 223. § 126. v. Wayne Co. (Auditors), 41 Mich. 223. § 111. v. Waynesville (Town), 88 I1L 469. §128. v. Weber, 86 111. 283. §§ 62, 262. v. Wendell, 71 N. Y. 171. §§ 56, 135. v. Westchester C. Pleas Court, 4 Cow. 73. § 190. v. Westchester (Sup'rs), 15 Barb. 607. §§ 75, 127, 255, 269. v. Westchester (Sup'rs), 73 N. Y. 173. §§ 126, 285. v. Weston, 28 CaL 639. §§ 46, 187, 205, 313. v. Wexford Co. Treas., 37 Mich. 351. § 238. People v. Whipple, 41 Mich 548. §§ 69, 113. v. White, 54 Barb. 622. § 114. v. Wiant, 48 111. 263. § 82. v. Williams, 55 111. 178. § 187. v. Williams, 91 111. 87. § 190. v. Wood, 35 Barb. 653. § 16. v. Yates, 40 111. 126. §§94, 234a, 291. v. Zane, 105 111. 662. § 204 Peoria Co. (Sup'rs) v. Gordon, 82 111. 435. § 314 Peralta v. Adams, 2 Cal. 594 § 201. Perkins v. Ind. School Dist, 56 Iowa, 476. § 115. Perry, Ex parte, 102 U S. 183. §§ 196, 201. Person v. Warren R. R., 32 N. J. L. 441. § 19. Peters v. State Canvassers (Board), 17 Kans. 365. § 184 Pfister v. State, 82 Ind. 382. §§ 111, 262. Philips v. Bury, 1 L. Raym. 5. § 40. v. Bury, 4 Mod. 106. § 313. v. Bury. 2 Term, 356. §§ 40, 175, 313. Phillips v. School District, 79 Mich. 170. § 115. Phoenix Iron Co. v. Commonwealth, 113 Pa St. 563. §§ 55, 161, 285, 288. Pickell v. Owen, 66 Iowa, 485. §§ 51, 85, 112. Pickett, Ex parte, 24 Ala. 91. § 107. Pike Co. (Com'rs) v. People, 111 I1L 202. §§ 135, 228. Pile, Ex parte, 9 Ark. 336. § 197. Pinckney v. Henegan, 2 Strob. 250. §§ 102, 309. Pistorius v. Stempel, 81 Mich. 133. §§ 49, 68. Pittsburgh, etc. R. R v. Common- wealth, 104 Pa, St. 583. §§ 13, 159. Poindexter v. Greenhow, 114 U. S. 270. § 98. CASES CITED. xIy Poindexter v. Greenhow, 84 Va. 441. §20. Police Board v. Grant, 9 Sm. & Mar. 77. §§ 32, 130. Polk v. Winett, 37 Iowa, 34. § 129. Polk County (Coni'rs) v. Johnson, . 21 Fla. 578. § 274. Pond v. Parrott, 42 Conn. 13. § 57. Poor Commissioners v. Lynah, 2 McCord, 170. §§ 40, 313. Porter Township (Overseers) v. Jersey Shore (Overseers), 82 Pa. St. 275. §§ 53, 56. Portman v. Fish Commissioners, 50 Mich. 258. § 16. Portwood v. Montgomery Co. (Sup'rs), 52 Miss. 523. § 111. Postmaster-General v. Trigg, 11 Pet. 173. §§ 246, 261. Poteet v. Commissioners, 30 W. Va. 58. § 269. Potter v. Todd, 73 Mo. 101. § 187. Poultney v. Bachman, 10 Abb. N. C. 252. § 169. v. Bachman, 31 Hun, 112. § 169. v. La Fayette (City), 12 Pet. 472. §§ 187, 246, 261. Powell v. Tarry, 77 Va. 250. § 190. Pratt v. Meriden C. Co., 35 Conn. 36. §161. Prescott v. Gonser, 34 Iowa, 175. §§ 57, 121, 314. President v. Elizabeth (Mayor), 40 Fed. R. 799. §§ 298, 299, 310. Price v. Riverside, etc. Co., 56 Cal 431. §§ 27, 162, 224 Prickett, In re, 20 N. J. L. 134 §118. Privett v. Stevens, 25 Kans. 275 §179. Proll v. Dunn, 80 Cal. 220. § 104 Prospect Brew. Company's Peti- tion, 127 Pa. St 523. § 274 Public Schools (Com'rs) v. Alle- gany Co. (Com'rs), 20 Md, 449. §§ 34, 65, 75, 221. Pucket v. Bean, 11 Heisk. 600. §142. v. White, 22 Tex. 559. §§ 57, 60. Pudney v. Burkhart, 62 Ind. 179. §123. Pulford v. Fire Department, 31 Mich. 458. § 168. Pumphrey v. Baltimore (Mayor), 47 Md. 145. §§ 116, 230. Purdy v. Sinton, 56 Cal. 133. § 119. Putnam, Ex parte, 20 Ala. 592. §199. Putnam v. Langley, 133 Mass. 204. §146. Putnam Co. (Com'rs) v. Allen Co. (Aud.). 1 Ohio St 322. § 126. Q. Quan Wo Chung v. Laumeister, 83 Cal. 384. § 123. Queen v. See Regina v. E. Railroad v. Wiswall, 23 Wall 507. §220. Railroad (Com'rs) v. Portland, etc. RR, 63 Me. 269. §§158,159. Railway Co., Ex parte, 103 U. S. 794. §§ 46, 201. Raisch v. Education (Board), 81 Cal. 542. §§ 19, 54, 115. Ralls County v. United States, 105 U. S. 733. §§ 20, 129, 131, 260. Ramagnano v. Crook, 85 Ala. 226. §§ 39, 419. Randolph v. Stalnaker, 13 Grat 523. § 111. Ray, Ex parte, 45 Ala. 15. § 201. Reading (Councils) v. Common- wealth, 11 Pa. St 196. §116. Redding v. Bell, 4 Cal. 333. § 256. Rees v. Watertown (City), 19 Wall. 107. §§ 20, 218. xlvi OASES CITED. Reeside v. "Walker, 11 How. 272. §§ 31, 90, 100. Eegina v. Adamson, 1 Q. B. D. 201. §§ 61, 212. v. All Saints (Church Wardens), I Ap. Cas. 611. §§ 77, 87. v. Ambergate, etc. R. R., 17 Ad. & E. (N. S.) 362. § 222. v. Ambergate, etc. R. R, 1 EL & BL 372. g§ 60, 76. v. Arnauld, 16 L. J. (N. S.) 50, Q. B. § 60. v. Baldwin, 8 Ad. & R 947. §295. v. Barnwell (Com'rs Land Tax), II Mod. 206. § 127. v. Birmingham, etc. R. R, 2 Ad. &E. (N. S.)47. §76. v. Blackwell R. R, 9 D. P. C. 558. §68. v. Bradford (Mayor), 4 Eng. L. & E. 194. § 138. v. Bridgman, 15 L. J. (N. S.) 44, M. C. § 212. v. Bristol (Just.), 28 Eng. L. & E. 160. §§ 32, 61, 187. v. Bristol, etc. R. R., 4 Ad. & E. (N. S.) 162. § 226. v. Brown, 7 Ellis & B. 757. §§ 45, 61, 212. v. Cadogan, 5 B. & Aid. 902. §14. v. Chapman, 6 Mod. 152. §§237, 268, 282. v. Chester (Dean), 15 Q. B. 513. §175. v. Clitheroe, 6 Mod. 133. § 293. v. Cory, 3 Salk. 230. § 246. v. Derby (Councilors of Bor- ough), 7 A. &E. 419. §143. v. Derby (Mayor), 2 Salk. 436. §86. v. Derbyshire, etc. R. R, 3 EL & BL 784. § 161. v. Dover (Mayor), 11 A. & E. (N. S.) 260. §§ 286, 310. Regina v. East, etc. Docks, 2 El. & B1.466. §§291,296. v. Eastern C. R. R, 10 Ad. & E. 531. §§159,227,268. v. Exeter (Chapter), 12 A. & E. 512. § 51. v. Fall, 1 Q. B. 636. § 290. v. Fox, 20 Q. B. D. 246. § 251. v. Gamble, 11 A. & E. 69. § 53. v. Gamble, 3 Per. & Dav. 122, note d. § 258. v. Goodrich, 19 L. J. Q. B. 413. §36. v. Great Western R. R., 5 Ad. & E. (N. S.) 597. § 293. v. Great Western R R, 1 El. & B. 253. § 227. v. Guise, 2 L. Raym. 1008. §281. v. Halifax (Overseers Poor), 10 L. J. M. C. 81. § 53. v. Harden, 23 L. J. Q. B. 127. §310. v. Harland, 8 Ad. & E. 826. §187. v. Heathcote, 10 Mod. 48. §§ 6, 53, 63. v. Hereford (Mayor), 2 Salk. 701. § 237. v. Hopkins, 1 Ad. & E. (N. S.) 161. §§ 23, 156, 255. v. Hudson, 9 Jur. 345. § 297. v. Hull, etc. R. R, 6 Ad. & E. (N. S.) 70. § 55. v. Ipswich Corporation, 2 L. Raym. 1283. § 299. v. Kendall, 1 Q. B. 366. § 165. v. Kestevan (Just), 3 Q. B. 810. §45. v. King, 20 Q. B. D. 430. § 267. v. Lambourn V. R. R., 22 Q. B. D. 463. § 160. v. Lane, 2 L. Raym. 1304. § 281. v. Ledyard, 1 Q. B. 616. §§ 269, 303. v. Leeds (Mayor), 11 A. & E. 512. §§ 139, 141. CASES CITED. xlvii Regina v. Leeds, etc. Co., 11 A. & E. [ 316. § 87. v. Leicester, 15 Q. B. 671. §§ 36, 45. v. Liverpool, 1 Eng. L. & E. 810. §45. v. London, etc. R. R, 16 Ad. & E. (N. S.) 864. § 164. v. Lords Com'rs Treasury, L. R 7 Q. B. 387. §§ 89, 90. v. Luton Roads (Trustees), 1 A. & E. (N. S.) 812, § 164. v. Mainwaring, Ellis, B. & C. 474. §§ 32, 61, 212. v. Manchester (Council), 9 Q. B. 458. § 292. v. Manchester, etc. R R, 8 A. & E. 413, 427. § 293. v. Middlesex (Just), 2 Ad. & E. (N. S.) 433. § 175. v. Middlesex (Just), 2 Q. B. D. 516. § 187. v. Midland, etc. R. R, 9 L. T. R (N. S.) 151. § 160.' v. Newbury, 1 Q. B. 751, 758. §§ 294, 310. v. New Windsor (Mayor), 7 A. & E. (N. S.) 908. § 286. Y. North Midland R R, 11 A. & E. 955. § 286. v. Norwich (Mayor), 2 Salk. 436 ; L. Raym. 1244. §§ 277, 281. v. Oswestry (Treas.), 12 Q. B. 239. § 135. v. Payn, 11 A. & E. 955. § 284. v. Peach, 2 Salk. 572. § 43. v. Pickles, 3 Ad. & E. (N. S.) 599. §£ 234a, 293. v. Pirehill North (Just), 13 Q. B. D. 696. § 267. v. Pirehill North (Just), 14 Q. B. D. 13. § 267. v. Pitt, 10 A. & E. 272. § 82. v. Pomfret (Mayor), 10 Mod. 107. §§ 274. 277, 281. v. Poole (Mayor), 1 Q. B. 616. §§ 268, 284, 297, 298, 301. Regina v. Powell, 1 Q. B. 352. § 89. v. Powell, 1 Q. B. 574. § 235. v. Radnorshire (Just), 15 L. J. (N. S.) 151, M. C. §§ 57, 60. v. Raines, 3 Salk. 233. § 74. v. Ray, 44 Up. Can. Q. B. 17. §57. v. Registrar, 21 Q. B. D. 131. §§ 51, 53, 252. v. Richards, 20 L. J. Q. B. 351. §45. v. St Andrews (Gov.), 10 A. & E. 736. §§ 268, 284. v. St. Luke's Vestry, 31 L. J. Q. B. 50. § 58. v. St. Margaret's Vestry, 8 A. & E. 889. §§ 225, 257, 258. v. St. Martins (Guard, of Poor), 17 A. & E. (N. S.) 149. §138. v. St. Pancras, 24 Q. B. D. 371. §39. v. St. Pancras (Direct, of Poor), 7 A. & E. 750. §§ 290, 292. v. St Saviour (Churchwardens), 7 A. & E. 925. §§ 268, 310. v. Smith, 30 Up. Can. Q. B. 518. §304. v. Southampton, 1 Best & S. 5. §81. v. Southampton (Com'rs), 30 L. J. Q. B. 244. § 280. v. Southampton (Com'rs of Port), L. R 4 Eng. & Irish Ap. 449. § 260. v. South East R R, 25 Eng. L. & E. 13 ; 4 H. L. C. 471. §256. v. Stamford (Mayor), 6 Ad. & E. (N. S.) 433. § 292. v. Swansea Harbor (Trustees), 8 A. & E. 439. § 19. v. Tithes Commissioners, 19 L. J. Q. B. 177. §§ 255, 291. v. Treasury, 15 Jur. 767. § 17. v. Wigan (Corp.), Burr. 782. §278. xlviii CASES CITED. Eegina v. York, etc. R. R., 1 E. & B. 173. §§76,227. Reichenbach v. Ruddach, 121 Pa- st. 18. §§ 190, 281. Respublica v. Clarkson, 1 Yeates, 46. § 110. v. Guardians of Poor, 1 Yeates, 476. §110. Rex v. Abingdon, 12 Mod. 308. §282. v. Abingdon (Mayor), 2 Salk. 432 ; 1 L. Raym. 559. § 281. v. Abingdon (Mayor), 2 Salk. 431 ; 12 Mod. 401. §§ 235, 274, 282. v. Abingdon (Mayor), 2 Salk. 700. §237. v. Abrahams, 4 Q. B. 157. §§ 22, 56. v. Adams, 2 A. & E. 409. § 49. v. Adamson, 1 Q. B. D. 201. §39. v. Archbishop, 8 East, 213. §§ 51, 55. v. Askew, 4 Burr. 2186. §§ 28, 157, 172. v. Atwood, 4 B. & Ad. 481. §143. v. Axbridge (Mayor), Cowp. 523. §§ 74, 149. v. Bank of England, 2 B. & Aid. 620. §§ 21, 22. v. Bankes, 3 Burr. 1452. §§ 138, 235, 242a. v. Barker, 3 Burr. 1265. §§ 1, 10, 21, 49, 51, 62, 313. v. Barker, 3 Burr. 1379. § 292. v. Bedford (Corporation), 1 East, 79. §§ 138, 141, 145. v. Bedford Level, 6 East, 356. §§ 141, 173. v. Blooer, 2 Burr. 1043. §§ 21, 49. v. Bower, 1 B. & C. 585. § 145. v. Brecknock, etc. Canal, 3 A. & E. 217. § 225. v. Bristol, 1 Show. 288. § 274. Rex v. Bristol (Mayor), 1 Dow. & Ry. 389. §g 74, 149. v. Bristow, 6 Term, 168. § 53. v. Broderip, 5 B. & C. 239 ; 7 D. & R. 861. §§ 57, 212. v. Cambridge (Chan.), 6 Term, 89. §§ 166, 313. v. Cambridge (Mayor), 4 Burr. 2008. § 138. v. Cambridge (Mayor), 2 Term, 456. § 277. v. Cambridge (Vice Chan.), 3 Burr. 1647. § 165. v. Cambridge (University), 1 W. Black. 552. § 10. v. Cambridge (University), Fort 202. §§ 2, 6. v. Cambridge (University), 8 Mod. 148. §§ 49, 168. v. Cambridgeshire (Just), 1 D. & R. 325. §§ 37, 87, 187. v. Canterbury (Archb.), 8 East, 213. § 56. v. Canterbury (Archb.), 15 East, 139. § 40. v. Canterbury (City), 1 Lev. 119. § 148. v. Chester, 1 M. & S. 101. § 143. v. Chester, 5 Mod. 10. § 232. v. Chester (Epis.), Stra. 797. §175. v. Chester (Bish.), 1 Wils. 206. §175. v. Christchurch, 7 E. & B. 409. §155. v. Clapham, 1 Wils. § 305. v. Clarke, 2 East, 83. § 143. v. Clear, 4B.&C. 899. §§ 13, 14, 21, 62. v. Colchester (Mayor), 2 Term, 260. § 143. v. Colchester (Town), 2 Keb. 188. § 276. v. Coventry, 2 Salk. 430. §§ 74, 149. v. Customs (Com'rs), 5 A. & E. 380. §89. CASES CITED. xlix Rex v. Darlington, 12 L J. Q. B. 128. §40. v. Dayrell, 1B.&C. 485. § 81. v. Doncaster (Mayor), 2 L. Rayni. 1564. §§ 137, 147, 148, 275. v. Doncaster (Mayor), Say. 37. §§ 147, 275. v. Dublin, Stra. 536. § 304. v. Dublin (Dean), 8 Mod. 27. §§ 10, 268, 304. v. East India Co. (Directors), 4 B. & Ad. 530. §§ 53, 225. v. Edgvean, 3 Term, 352. § 303. v. Ely (Bisbop), 5 Term, 475. §§ 37, 175. v. Esham, 2 Barn. 265. § 266. v. Essex (Just.), 2 Cbit. 385. §41. v. Everet, Cas. Temp. Hard. 261. §§ 13, 113. v. Eye (Bailiffs), 1 B. & C. 85. §§ 57, 137. v. Flintshire (Just.), 11 Jur. 291. §45. v, Fowey (Mayor), 2 B. & C. 584. §57. v. Fowey (Mayor), 5 Dow. & Ey. 614. §§298,303. v. Free Fisbers (Co.), 7 East, 353. § 166. v. Frieston (Inbab.). 5 B. & Ad. 597. § 45. v. Gloucester (Bishop), 2 B. & Ad. 158. § 40. v. Goodrich, 3 Smith, 388. §§ 24, 35, 319, 322. v. Gower (Dr.), 3 Salk. 230. §§ 2, 6. v. Grampond (Mayor), 6 Term, 301. §§ 82, 138. v. Gray's Inn (Benchers), Doug. 353. § 195. v. Greame, 2 A. & E. 615. §§ 81. 212. v. Great Favingdon, 9 Barn. & Cres. 541. §§ 14, 155. Rex v. Griffiths, 5 B. & Aid. 731. §§ 74, 149. v. Halls, 3 A. & E. 494 §§ 81, 212. v. Hare, 13 East, 189. § 247. v. Hay. 4 Burr. 2295. § 82. v. Haslemere, Sayer, 106. § 278. v. Hereford (Mayor), 2 Salk. 70. § 234a. v. Hewes, 3 Ad. & E. 725 ; 5 N. & M. 139. § 189. v. Ingram, 1 W. Black, 50. § 24. v. Jeyes, 3 A. & E. 423. § 84. v. Jotham, 3 Term, 575. §g 21, 49. v. Kent (Just.), 14 East, 395. §§ 39, 203. v. Kingston (Mayor), 8 Mod. 209. §232. v. Knapton, 2 Keb. 445. § 141. v. Lancashire (Just.), 7 B. & C. 691. § 39. v. Leicester (Just.), 4 B. & C. 891. § 262. v. Leicestershire (Just.), 1 M. & S. 442. § 189. v. Leyland, 3 M. & S. 184 § 145. v. Liverpool (Town), Burr. 723. §§ 148, 275. v. Liverpool R. R, 21 L. J. Q. B. 284 § 68. v. London (Mayor), 3 B. & Ad. 255. §§ 40, 140, 268, 276, 277. v. London (Mayor), 9 B. & C. 1. §277. v. London (Mayor), 2 Term, 177. §§ 74, 148, 149. v. London Assurance Co., 1 D. & R 510. § 160. v. London Assurance Co., 5 B. & Aid. 901. § 21. v. London Dock Co., 5 A. & E. 163. §294 v. Lords Corn'rs Treasury, 4 A. & E. 286. § 90. v. Lords Corn'rs Treasury, 4 A. & E. 984 § 90. 1 CASES CITED. Rex v. Lyme Regis (Mayor), Doug. 144. §§274,275. v. Maiden (Corporation), 2 Salk. 431 ; 1 L. RayiQ. 481. §§ 268, 274 v. March, 2 Burr. 999. § 268. v. Margate Pier Co., 3 B. & Aid. 220. § 269. v. Marriott, 1 D. & R. 166. § 294 v. Marylebone, 5 A. & E. 276. §14 v. Merchants' T. Co., 2 Barn. & Ad. 115. § 161. v. Middlesex (Archd.), 3 A. & E. 615. § 234a. v. Middlesex (Justices), 4 Barn. & Ad. 300. §§ 29, 32. v. Milverton (Lord of 100), 3 Ad. & E. 284 § 235. v. Mirehouse. 2 A. & E. 632. §§ 81, 212. v. Monmouth (Mayor), L. R. 5 Q. B. 251. §§ 45, 203. v. Montacute, 1 W. Bl. 64 § 11. v. Montague, 1 Barn. 72. § 212. and Newcastle upon Tyne (Corp.), 1 Barn. 385. § 301. v. Norwich (Mayor), 1 B. & Ad. 310. §§49,79. v. Norwich (Mayor), Stra. 55. §§ 234a, 237. 159. v. Norwich (Dean), Stra. §268. v. Norwich Sav. Bank, 9 A. & E. 729. § 75. v. North Riding, 2 B. & C. 286. §29. v. Nottingham O. W. W., -6 A. & E. 355. §§ 19, 53. v. Nottingham O. W. W., 1 N. & P. 480. § 53. v. Oundle (Lord of), 1 A. & E. 283, 299. § 268. v. Ouze Bank Com'rs, 3 Ad. & E. 544. § 268. v. Overseers Shipton Mallet, 5 Mod. 420. § 259. v. v. V. V. V. Rex v. Owen, 5 Mod. 314. § 155. v. Oxford, 6 A. & E. 349. § 138. v. Oxford (Mayor), 2 Salk. 428. §§ 148, 149. v. Paddington Vestry, 9 B. & C. 456. § 73. v. Payn, 1 Nev. & P. 524. § 155. v. Penrice, Stra. 1235. § 276. v. Pierson, Andrews, 310, n. §247. Richardson, 1 Burr. 517. §147. Robinson, 8 Mod. 336. §§284, 299. Robinson, 2 Smith, 274 §§ 61, 212. Round, 4 A & E. 139. § 155. Rye (Mayor), Burr. 798. § 266. Saint Andrew (Gov'rs Poor), 7 A. & E. 281. §§ 265, 282. v. Saint Catherine's Hall, 4 Term, 233. § 175. v. Saint John's College, 4 Mod. 233. § 175. v. Saint Katherine Dock Co., 4 B. & Ad. 360. §§ 19, 22. Saint Pancras, 1 N. & P. 507. §§ 260, 268. Saint Pancras (Ch. Trustees), 3 A. & E. 535. §§ 262, 291, 293. Saint Pancras (Ch. Trustees), 6 A. & E 314 § 291. Serle, 8 Mod. 332. § 141. Severn, etc. R. R., 2 B. & Aid. 646. § 159. Simms, 4 Dowl. 294 § 261. Simpson, 3 Burr. 1463. § 242a. Smith, 2 M. &S. 583. §§234a, 237. Somersetshire (Just.), 4 N. & M. 394 §§ 81, 212. Sparrow, 2 Stra. 1123. § 79. Stafford, 3 Term, 646. §§ 13, 21, 55, 56. Stafford, 4 Term, 689. §§ 292, 293. v. v. V. V. V. V. V. V. V. CASES CITED. li V. V. V. Rex v. Staffordshire, 6 A. & E. 101. §68. Staffordshire (Just), 6 A. & E. 84. § 267. State-Damerell (Minister), 5 A. & E. 584. § 138. Suffolk (Just.), 1 B. & A. 640. §212. Surrey (Treas.), 1 Chit 650. §§ 53, 84, 135. Taunton (Churchwardens), Cowp. 413. § 276. Taylor, 3 Salk. 231. §§ 237, 281, 315. The Baily, 1 Keb. 33. § 282. Tod, 1 Stra. 530. § 212. Tower Hamlets, 3 Q. B. 670. §14. Tregony (Mayor), 8 Mod. Ill, 127. § 235. Tucker, 3 B. & C. 544. § 268. Turkey Co., 2 Burr. 999. § 22. Victoria Park Co., 1 Q. B. 288. § 53. Ward, 2 Stra. 893. §§ 109, 141. Warwickshire (Just), 5 Dowl. 382. § 247. Water Eaton (Lord of Manor), 2 J. P. Smith, 55. §297. Welbeck (Inhab.), Stra. 1143. §274. West Loe (Corporation), Burr. 1386. § 73. West Looe (Mayor), 5 Dow. & R. 414. §§ 110, 151, 298. West Riding of Yorkshire, 5 B. & Ad. 667. § 39. Wheeler, Cas. temp. Hardw. 99. §§ 13, 82. Wigan (Corporation) Burr. 782. § 138. Wildman, 2 Stra, 879. § 165. Williams, 8 B. & C. 681. §276. Willingford (Just), 2 Barn. 132, §269. v. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Rex v. Wilts, etc. Nav. (Prop'rs), 3 A. & E. 477. §§ 14, 223. v. Wiltshire (Just), 10 East, 404. §39. v. Winchester, 7 A. & E. 215. §143. v. Windham, Cowp. 377. §§ 10, 51, 165. v. Worcester (Bishop), 4 M. & S. 415. § 175. v. Worcester, etc. Co., 1 Man. & Ry. 529. § 160. v. York (Archbishop), 6 Term, 490. § 274. v. York (Mayor), 4 Term, 699. §109. v. York (Mayor), 5 Term, 66. §§ 277, 281. Reynolds v. Taylor, 43 Ala. 420. §105. Rhodes v. Craig, 21 Cal. 419. § 204. Rice v. Austin, 19 Minn. 103. § 94 v. State, 95 Ind. 33. § 105. v. Walker, 44 Iowa, 458. §§ 75, 135. Rice, etc. Co. v. Worcester (City), 130 Mass. 575. § 290. Richards v. Bristol (Com'rs), 120 Mass. 401. § 111. Riddell v. Harmony F. Club, 8 Phil. 310. § 168. Ridley v. Doughty, 77 Iowa, 226. §§ 127, 128. Riggs v. Johnson County, 6 Wall 106. §§ 216, 217, 218, 219, 312. Riley v. Kansas City, 31 Mo. Ap. 439. §120. Rioters' Case, 1 Vern. 175. § 3. Roberts, Ex parte, 6 Pet. 216. § 187. Robbins, Ex parte, 29 Ala. 71. § 199. Robins, Ex parte, 3 Jur. 103. § 27a. Robinson, Ex parte, 19 Wall. 505. §195. Robinson v. Butte Co. (Sup'rs), 43 Cal. 353. §§ 129, 132. v. Rogers, 24 Grat 319. § 105. Hi CASES CITED. Rochester (Mayor) v. Queen, L. J. 27 N. S. Q. B. 434 §§ 79, 238. Rodgers v. Alexander, 35 Tex. 116. §208. Rodman v. Larue Co. (Just), 3 Bush, 144. § 130. Rollersville, etc. Co. v. Sandusky County, 1 Ohio St. 149. §33. Rolston v. Missouri Fund Com'rs, 120 U. S. 390. § 98. Roscommon Midland Sup'rs, 49 Mich. 454. § 290. Rose v. County Com'rs, 50 Me. 243. §111. Rosenbaum v. Bauer, 120 U. S. 450. §§ 217, 220. v. Supervisors, 28 Fed. Rep. 223. §61. Ross v. Lane, 3 Sm. & M. 695. § 60. Rowland, Ex parte, 26 Ala. 133. §210. Rowland, Ex parte, 104 U. S. 604. §§ 51, 86, 234, 302. Rugby Charity Trustees, Ex parte, 9 D. & R 214. § 56. Runion v. Latimer, 6 S. C. 126. §§ 51, 57, 108, 143, 264. Runkel v. Winemiller, 4 Har. & McH. 429. §§ 10, 22, 49. Russell, Ex parte, 13 Wall. 664 §203. Russell v. Elliott, 2 Cal. 245. §§ 65, 189. S. Sage v. Lake Shore, etc. R R., 70 N. Y. 220. §§ 14, 161. Saint Clair Co. v. People, 85 111. 396. §§ 33, 39, 116. Saint Louis Co. Court v. Sparks, 10 Mo. 117. §§ 148, 237, 303. Saint Luke's Church v. Slack, 7 Cush. 226. §§ 23, 51, 62, 165, 313. Sale v. Baptist Church, 62 Iowa, 26, §176. Sandlake (Sup'rs) v. Berlin (Sup'rs), 2 Cow. 485. § 114 Sandys, Ex parte, 4 B. & Ad. 863. §74 Sanger v. Kennebec Co. (Com'rs), 25 Me. 291. §§ 116, 229. Sankey v. Levy, 69 CaL 244. § 187. Sansom v. Mercer, 68 Tex. 488. §§ 30, 31, 46, 230, 274, 284 Sansome v. Myres, 77 Cal. 353. §190. Sauls v. Freeman, 24 Fla. 209. § 315. Savannah (Cotton Ex.) v. State, 54 Ga. 668. § 166. Savannah (Mayor) v. State, 4 Ga- 26. §§ 87, 290. Sawyer, Ex parte, 88 U. S. 235. §196. Scarborough, Ex parte (S. C, 1891), 12 S. E. Rep. 666. § 184 Schend v. St. George's Society, 49 Wis. 237. §§ 249, 252, 262. Schlaudecker v. Marshall, 72 Pa. St 200. §§ 40, 119, 188. Schmidt, Ex parte, 62 Ala. 252. §201. Schmidt v. Abraham Lincoln Lodge, 84 Ky. 490. § 158. School Inspectors v. State, 20 111. 525. § 259. School Directors v. Anderson, 45 Pa. St. 388. § 70. School District v. Bodenhamer, 43 Ark. 140. § 130. v. Lauderbaugh, 80 Mo. 190. §§ 256, 294, 296. Schwab, Ex parte, 98 U. S. 240. §196. Schweiger v. Society, 13 Phila. 113. §275. Scott Ex parte, 8 Dowl. 328. § 232. Scott v. Chambers, 62 Mich. 532. §200. v. Superior Court, 75 Cal. 114. §§ 196, 313. CASES CITED. liii Screwmen's B. Assoc, v. Benson, 76 Tex. 552. §§ 49, 166, 169. Scripture v. Bums, 59 Iowa, 70. §§ 30, 37, 313. Secombe, Ex parte, 19 How. 9. §§ 216, 248. 261, 322. Secretary v. McGarrahan, 9 Wall. 298. §§ 29, 31, 46, 100, 238. Sedberry v. Chatham Co. (Com'rs), 66 N. C. 486. § 297. Selma, etc. R. R., Ex parte, 45 Ala. 696. § 111. 46 Ala. 230. § 277. 46 Ala. 423. § 103. Sessions v. Boykin, 78 Ala. 328. §§ 54, 135, 136. Seymour v. Ely, 37 Conn. 103. §§ 32, 116. Shadden v. Sterling, 23 Ala. 518. §204. Shandies, Ex parte, 66 Ala. 134. §§ 75, 187, 204. Shannon v. Frost, 3 B. Mon. 253. §176. Sheaff v. People, 87 111. 189. §§ 116, 240. Shelby v. Hoffman, 7 Ohio St. 450. §250. Shepard v. Milwaukee G. L. Co., 6 Wis. 529. § 27. v. Peyton, 12 Kans. 616. § 190. Sheppard v. Wilson, 6 How. 260. §192. Sherburne v. Horn, 45 Mich. 160. §§ 66, 140. Sherman v. Clark, 4 Nev. 138. §43. Shine v. Kentucky C. R. R., 85 Ky. 177. §§51,53. Shipley v. Mechanics' Bank, 10 John. 484. § 160. Shrever v. Livingston Co., 9 Mo. 195. §306. Shrewsbury v. Kynaston, 7 Bro. P. C. 396. § 290. Sibley v. Cartaret Club, 40 N. J. L. 295. §§ 166, 168. Sights v. Yarnalls, 12 Grat. 292. §119. Sikes v. Ransom, 6 John. 279. §§ 190, 192. Silver v. People, 45 111. 224. §§ 124, 253, 274, 289. Silverthorn v. Warren R. R, 33 N. J. L. 173. §§ 75, 76, 268, 285. Simon v. Durham, 10 Oreg. 52. §§ 179, 185. Singleton v. Commissioners, 2 Bay, 105. §§ 147, 148, 275. Skaggs, Ex parte, 19 Mo. 339. § 306. Small, Ex parte, 25 Ala. 74. § 211. Smalley v. Yates, 36 Kans. 519. §21. Smith v. Boston (Mayor), 1 Gray, 72. § 313. v. Bourbon Co., 127 U. S. 105. §111. v. Bourbon Co. (Com'rs), 42 Kans. 264. § 314. v. Eaton Co. (Sup'rs), 56 Mich. 217. § 142. v. Independent S. Disk, 40 Iowa, 518. § 115. v. Jackson, 1 Paine, 453. § 217. v. Lawrence (S Dak., 1891), 49 N. W. Rep. 7. §§ 178, 179, 182, 185, 224, 228. v. Moore, 38 Conn. 105. § 212. v. Ragsdale, 36 Ark. 297. § 212. v. Saginaw (Mayor), 81 Mich. 123. § 229. v. Strobr.ch, 50 Ala 462. § 126. Smyth v. Titcomb, 31 Me. 272. §§ 65, 187, 201, 273. Society for Visitation v. Common- wealth, 52 Pa. Sk 125. §§ 166, 274, 275. South & N. Ala. R. R., Ex parte, 65 Ala. 599. § 199. Spencer Co. (Jusk) v. Harcourt, 4 B. Mon. 499. §§ 149, 256. Spiritual Aid Society v. Randolph (Selectmen), 58 Vt. 192. § 75. liv CASES CITED. Spraggius v. Humphries Co. Court, Cooke, 160. § 220. Sprague v. Fawcett, 53 Cal. 408. §192. Spring Valley W. Co. v. Supervis- ors, 61 Cal. 18. § 111. Springfield v. Hampden Co.(Com'rs), 10 Pick. 59. §§ 274, 294. Springfield, etc. R R. v. Wayne Co. (Clerk), 74 111. 27. § 75. Squier v. Gale. 6 N. J. L. 157. § 187. Stackpole v. Seymour, 127 Mass. 104. § 160. Stafford v. Union Bank La., 17 How- 275. §§ 189, 216, 245, 322. Starnes v. Tanner, 73 Ga. 144. § 51. State v. Act Board Aldermen, 1 Rich. (N. S.) 30. §§ 293, 294, 322. v. Adams, 76 Mo. 605. § 189. v. Alachua Co. (Board Com.), 17 Fla. 9. §§ 183, 298, 299. v. Ames, 31 Minn. 440. §§ 46, 52, 109. v. Anderson, 52 N. J. L. 150. §104. v. Anderson Co. (Com'rs), 28 Kans. 67. § 62. v. Applehy, 25 S. C. 100. §§ 51, 56, 57, 87. v. Archibald, 43 Minn. 328. §§ 75, 127, 241. v. Auditor, 43 Ohio St. 311. §57. v. Babcock, 51 Vt. 570. § 190. v. Bacon, 6 Neb. 286. §§ 24, 155. v. Bailey, 7 Iowa, 390. §§ 179, 224, 235, 294. v. Baird, 11 Wis. 260. § 266. v. Baggott, 96 Mo. 63. § 294. v. Baker, 25 Fla. 598. § 195. v. Baltimore Co. (Com'rs), 29 Md. 516. §65. v. Baltimore Co. (Com'rs), 46 Md. 621. § 53. v. Barker, 4 Kans 379. §§ 65, 89, 102. State v. Barnes, 25 Fla. 298. §§ 39, 118. v. Barnes, 16 Neb. 37. §§ 78, 190, 193. v. Barnes, 35 Ohio St 136. §117. v. Baton Rouge (Selectmen), 25 La. An. 310. § 184. v. Baxter, 38 Minn. 137. § 190. v. Bell Tel. Company, 23 Fed. Rep. 539. § 25. v. Bell TeL Company, 36 Ohio St. 296. § 25. v. Belmont Co. (Com'rs), 31 Ohio St. 451. §§ 32, 70. v. Beloit (Sup'rs), 20 Wis. 79. §§ 129, 219, 234a, 262, 296. v. Beloit (Sup'rs), 21 Wis. 280. §59. v. Benton, 25 Neb. 834. §§ 40, 41, 105. v. Berg, 76 Mo. 136. §§ 179, 183, 185, 310. v. Bergen C. Pleas (Judges), 2 Penn. 737. § 205. v. Bergen (Freeholders), 52 N. J. L. 313. §§ 60, 76, 272, 295, 296. v. Bergenthal, 72 Wis. 314, §234. v. Berry, 14 Ohio St 315. §§ 75, 184 v. Biddle, 36 Ind. 138. § 215. v. Board of Education, 24 Wis. 683. § 117. v. Board of Health, 49 N. J. L. 349. § 149. v. Board of Liquidators, 23 La. An. 388. § 29. v. Bollinger Co. (Just), 48 Mo. 475. § 130. v. Bonebrake, 4 Kans. 247. §126. v. Bonnell, 119 Ind. 494. §§ 49, 56, 57, 119. v. Bonnifield, 10 Nev. 401. §310. CASES CITED. lv State v. Bordelon, 6 La. An. 68. §§ 65, 103, 105, 235. v. Boullt, 26 La. An. 259. §§ 55, 134. v. Bowden, 18 Fla. 17. § 78. v. Bowen, 6 Ala. 511. § 187. v. Bowker, 4 Kans. 114. § 135. v. Boyd (Neb., 1891), 48 N. W. Rep. 739. § 97. v. Braden, 40 Minn. 174. § 99. v. Breese, 15 Kans. 123. § 215. v. Brewer, 61 Ala. 318. § 105. v. Bridgman, 8 Kans. 458. §§ 23, 53, 135. v. Brockwell, 84 Tenn. 683. ■§190. v. Brown, 28 La. An. 103. § 244. v. Brown, 38 Ohio St. 344. § 230. v. Buchanan, 24 W. Va. 362. §§ 62, 65, 127. v. Buckles, 39 Ind. 272. § 126. v. Buhler, 90 Mo. 560. §§ 50, 56, 57, 201. v. Burbank, 22 La. An. 298. §§ 66, 68, 71. v. Burgoyne, 7 Ohio St 153. §109. v. Burke, 33 La. An. 498. § 89. v. Burke, 33 La. An. 969. § 103. v. Burkhardt, 59 Mo. 75. §§ 134, 242, 243. v. Burnside, 33 S. C. 276. §§ 33, 51, 56. v. Burnsville T. Co., 97 Ind. 416. §§ 3, 62, 253, 290. v. Byers, 67 Mo. 706. §§ 82. 127, v. Callaway Co. (Treas.), 43 Mo. 228. § 135. v. Camden, 39 N. J. L 620. §§ 34, 86, 230, 252. v. Camden (Chosen Freehold- ers), 35 N. J. L 217. §§ 142, 152. v. Camden (Com. Coun.), 42 N. J. L. 335. § 143. v. Canal, etc. R R, 23 La, An. 333. 8 33. State v. Cape Girardeau C. P. Court, 73 Mo. 560. § 204. v. Cappeller, 37 Ohio St. 121. §306. v. Carey (N. Dak, 1891), 49 N. W. Rep. 164. §§ 37, 230, 262. v. Cardozo, 5 Rich. (N. S.) 297. §103. v. Carney, 3 Kans. 88. § 221. v. Cartaret Club, 40 N. J. K 295. § 168. v. Gathers, 25 Neb. 250. § 127. v. Chairman County Com'rs, 4 Rich. (N. S.) 485. § 305. v. Chamber of Commerce, 20 Wis. 63. §§ 166, 168. v. Chase, 42 Mo. Ap. 343. § 113. v. Chase, 5 Ohio St. 528. § 93. v. Cheraw, etc. R R, 16 S. C. 524. §§ 294. 296. v. Chester, 10 N. J. L 292. § 234a. v. Chicago, etc. R. R, 38 Minn. 281. § 290. v. Chicago, etc. R. R, 19 Neb. 476. §§ 61, 62, 270. v. Chicago, etc. R. R, 79 Wis. 259. § 237. v. Cincinnati (City), 19 Ohio St. 178. §§ 248, 322. v. Clark, 52 Mo. 508. §§ 105, 152. v. Clay Co., 46 Mo. 231. § 130. v. Clayton, 34 Mo. Ap. 563. §212. v. Clementson, 69 Wis. 628. §187. v. Cleveland (Fire Com'rs), 26 Ohio St. 24. § 147. v. Clinton, 27 La. An. 429. §105. v. Clinton, 28 La An. 47. §§ 105, 126. v. Clinton Co. (Com'rs), 6 Ohio St. 280. §§129,225. v. Cole, 33 La. An. 1356. § 264. v. Cole, 25 Neb. 342. § 279. lvi CASES CITED. State v. Collins, 5 Wis. 339. § 189. v. Columbia, 25 S. C. 582. §§ 87, 290. v. Columbus (Board Educ), 35 Ohio St. 368. §§ 115, 228. v. Columbus (Police Boai-d). 19 Weekly L. Bui. 317. §§ 69, 120. v. Commercial Court (Judge), 4 Rob. 227. § 204. v. Comptroller-Gen., 4 Rich. (N. S.) 185. § 71. v. Comptroller-Gen., 4 Rich. (N. S.) 430. § 65. v. Cooper Co. Court, 64 Mo. 170. §§ 201, 215. v. County Canvassers, 17 Fla. 705. § 230. v. County Commissioners, 83 Ala. 304. §§ 53, 203. v. County Court, 33 W. Va. 589. §§ 31, 201, 269. v. County Judge, 7 Iowa, 186. § 185. v. County Treasurer, 10 Rich. (N. S.) 40. § 310. v. Court Com. Pleas, 38 N. J. L. 182. § 187. v. Cover, 50 111. 100. § 153. v. Cox, 26 Minn. 214. § 190. v. Craft, 17 Fla. 722. §§ 56, 84, 123. v. Craig, 69 Mo. 565. § 76. v. Cramer, 96 Mo. 75. §§ 40, 119. v. Crete (Mayor) (Neb., 1891), 49 N. W. Rep. 272. § 228. v. Crites (Ohio, 1891), 28 N. E. Rep. 178. § 299. v. Cunningham, 9 Neb. 146. §123. v. Curler, 4 Nev. 445. § 220. v. Curtiss (Ohio, 1891), 26 N. E. Rep. 1052. § 296. v. Davenport (City), 12 Iowa, 335. §§ 70, 129, 132. v. Davis, 17 Minn. 429. § 222. State v. Davis Co. (Judge), 2 lows, 280. §g 56, 228, 255. v. Deane, 23 Fla. 121. §§ 179. 292. v. Delafield (Sup'rs), 64 Wis. 218. § 252. v. Delaware, etc. Co., 47 Fed. Rep. 633. § 25. v. Delaware, etc. R. R, 48 N. J. L. 55. §§ 27a, 162. v. Demaree, 80 Ind. 519. § 116. v. Deslonde, 27 La. An. 71. §102. v. Dike, 20 Minn. 363. §§ 94, 99. v. Dinsmore, 5 Neb. 145. § 179. v. Dodson, 21 Neb. 218. §§ 152, 154. v. Dougherty, 45 Mo. 294. §§ 256, 278. v. Douglas Co.(Com'rs), 18 Neb. 506. § 63. v. Doyle, 40 Wis. 175. § 102. v. Doyle, 40 Wis. 220. §§ 88, 102. v. Draper, 48 Mo. 213. §§ 105, 143, 152. v. Drew, 17 Fla. 67. §§ 93, 94. v. Drew, 32 La. An. 1043. §190. v. Dubuclet, 26 La. An. 127. §§ 82, 103. v. Dubuclet, 27 La. An. 29. § 242a. v. Dubuclet. 28 La. An. 85. §§ 66, 230. v. Duffy, 7 Nev. 342. § 115. v. Dunn, Minor (Ala.), 46. §§ 138, 143. v. Dusman, 39 N. J. L 677. §S 142, 143, 154. v. Eaton, 11 Wis. 29. § 289. v. Earhart, 35 La. An. 603. §63. v. Earle, 42 N. J. L. 94. §§ 87, 135. v. Eberhardt, 14 Neb. 201. §§ 109, 224. OASES CITED. lvii State v. Eddy, 10 Mont. 311. § 212. v. Edwards, 11 Mo. Ap. 152. §283. v. Einstein, 46 N. J. L. 479. §£ 16, 31, 158, 161, 291. v. Elder (Neb., 1891), 47 N. W. Rep. 710. §107. v. Election Inspectors, 17 Fla. 26. § 75. v. Elkinton, 30 N. J. L. 335. §§ 239, 301. v. Ellis, 41 La. An. 41. £§ 46, 198, 207. v. Elmore, 6 Cold. 528. § 215. v. Engelman, 86 Mo. 551. §§196, 201. v. Engle, 127 Ind. 457. § 212. v. Engleman. 45 Mo. 27. § 209. v. Essex (Freeholders), 23 N. J. L. 214. §§ 40, 116. v. Eureka Co. (Corn'rs), 8 Nev. 309. §§ 47, 112. v. Everett, 52 Mo. 89. §§ 255, 269. v. Fairfield Co. (C. P. Court), 15 Ohio St. 377. §§ 65, 220. v. Farris, 45 Mo. 183. § 176. v. Field, 37 Mo. Ap. 83. §§ 190, 296. v. First Nat. Bank, 89 Ind. 302. §160. v. Flad, 23 Mo. Ap. 185. §£ 39. 49. v. Flad, 26 Mo. Ap. 500. § 66. v. Floyd Co. (Judge), 5 Iowa, 380. §S 55, 111. v. Foster, 38 Ohio St. 599. §§ 93, 179. v. Fournet. 30 La. An. 1103. §234. v. Francis. 95 Mo. 44. §§ 69, 120, 230, 294. v. Franklin Co. (Corn'rs), 21 Ohio St. 648. § 111. v. Freeman, 24 Fla, 209. § 315. v. Fremont, etc. R. R., 22 Neb. 313. § 51. State v. Fuller, 18 S. C. 246. §§ 13, 51. v. Gamble, 13 Fla. 9. §§ 104, 153. v. Gaudy, 12 Neb. 232. §§ 135, 266. v. Garesche, 65 Mo. 480. §§ 31, 180. v. Gasconade Co. Court, 25 Mo. Ap. 446. g 143. v. Gates, 22 Wis. 210. §§ 129, 130, 131, 238. v. Georgia Med. Society, 38 Ga. 608. §§ 49, 157, 166. v. Gibbs, 13 Fla. 55. §§ 78, 178, 179, 185, 222, 239. 294, 296. v. Gibson Co. (Corn'rs), 80 Ind. 478. § 116. v. Goll, 32 N. J. L. 285. §§ 165, 259, 319, 322. v. Goodfellow, 1 Mo. Ap. 495. § 290. v. Governor, 39 Mo. 388. §§ 94, 255, 259. v. Governor. 25 N. J. L. 331. §§ 94. 99, 223. v. Gracey, 11 Nev. 223. §§ 1, 21. 51, 61, 221, 230, 245, 257. v. Grand Island, etc. R. R., 27 Neb. 694. §§ 18, 272, 322. v. Graves, 19 Md. 351. §§ C6, 116. v. Greene Co. (Corn'rs), 119 Ind. 444. g 31. v. Gregory. 83 Mo. 123. §§ 31, 119. v. Griscom, 3 Halst. 136. § 299. v. Grubb, 85 Ind. 213. §§ 56, 57, 229. 260. v. Guerrero, 12 Nev. 105. § 160. v. Guthrie, 17 Neb. 113. §§ 78, 23S. 240. v. Haben, 22 Wis. 6fi0. § 228. v. Hagood, 30 S. C. 519. §§ 13, 57. 65. v. Hall. 6 Baxt. 3. § 215. v. Hall, 3 Cold. 2f5. § 215. hriii CASES CITED. State v. Hammell. 31 N. J. L. 446. §134 v. Hamilton, 5 Ind. 310. §§ 126, 230. v. Hamilton (Com'rs), 20 Ohio St. 425. § 117. v. Hamilton (Com'rs'), 26 Ohio St. 364. §§36,111,126,203. v. Hannibal, etc. R R, 86 Mo. 13. £§ 159, 230. v. Hannon, 38 Kans. 593. §§ 17, 136. v. Hard, 25 Minn. 460. §§ 305, 315. • v. Harris, 17 Ohio St. 608. §§ 65, 129. v. Hartford, etc. R R, 29 Conn. 538. §§ 27a, 158, 159. v. Harvey, 14 Wis. 151. §§ 102, 300. v. Hastings, 10 Wis. 518. §§ 56, 103, 135. v. Hawes, 43 Ohio St. 16. §§ 190, 280. v. Hayne, 8 Rich. (N. S.) 367. §§ 23, 102, 107. v. Hays, 50 Mo. 34. § 103. v. Hebrew Congregation, 31 La. An. 205. § 176. v. Helmer, 10 Neb. 25. §§ 135, 250. v. Henry Clay Lodge (N. J., 1891), 22 Atl. Rep. 63. §§ 166, 169. v. Henry Co. (Com'rs), 31 Ohio St. 211. § 116. v. Hickman, 10 Mont. 497. §§ 103, 104. v. Highland (Town), 25 Minn. 355. § 128. v. Hill, 20 Neb. 119. §§ 179, 185. v. Hobart, 12 Nev. 408. § 104. v. Hoblitzelle, 85 Mo. 620. § 14. v. Hodgeman Co. (Com'rs), 23 Kans. 264. § 179. v. Hoeflinger, 31 Wis. 257. §§ 134, 307. State v. Hoffman, 35 Ohio St 435. §126. v. Holladay, 65 Mo. 76. §§ 105, 296. v. Hollinshead, 47 N. J. L. 439. § 229. v. Horner, 16 Mo. Ap. 191. §§ 187, 201, 302. v. Howard Co., 39 Mo. 375. §§ 16, 53. v. Howard Co. Court, 41 Mo. 247. § 152. v. Howe, 28 Neb. 618. §§ 182, 185. v. Howell Co. Court, 58 Mo. 583. § 111. v. Hudson, 13 Mo. Ap., 61. §256. v. Hudson Co. (Ch. Frh'rs), 35 N. J. L. 269. §§ 143, 225, 252. v. Humphreys, 25 Ohio St 520. §§ 60, 127. v. Inferior Court (Just), Dud. (Ga.) 37. § 10. v. Jacksonville (Mayor), 22 Fla. 21. § 285. v. Jacobus, 2 Dutch. 135. § 57. v. Jaynes, 19 Neb. 161. §§ 152, 154. v. Jefferson Co. (Canvassers), 17 Fla. 707. §§ 221, 230. v. Jefferson Co. (Com'rs), 11 Kans. 66. §§ 62, 228. v. Jefferson Co. (Police Jury), 22 La. An. 611. § 116. v. Jefferson Co. (Police Jury), 33 La. An. 29. § 245. v. Jennings, 48 Wis. 549. § 128. v. Jennings, 56 Wis. 113. §§264, 270, 272, 274. v. Jersey City (Board Finance), 38 N. J. L. 259. § 225. v. Jersey City (Board Finance) (N. J., 1890), 20 Atl. Rep. 755. § 227. v. Joint School District 65 Wis. 631. §§ 39, 115, 250. CASES CITED. lix State v. John, 81 Mo. 13. § 152. v. Johnson, 28 La An. 932. §13. v. Johnson, 29 La. An. 399. §154. v. Johnson Co. (Board Equal.), 10 Iowa, 157. §§ 130, 243, 247, 250, 296. v. Johnson Co. (Judge), 12 Iowa, 237. §§ 296, 297, 310. v. Jones, 1 Ired. 129. §§ 234a, 259, 266. v. Jones, 1 Ired. 414. § 297. v.Jones, 10 Iowa, 65. §§274, 284, 288. Judge, 15 La. 521. 198. Judge, 38 La. An. 43. § 303. v. Judge, 40 La. An. 206. § 198. v. Judge, 41 La. An. 951. § 198. v. Judges, 29 La. An. 785. § 209. v. Judge 3d District, 6 La. An. 484. §§ 198, 273. v. Judge 3d District, 31 La. An. 800. § 198. v. Judge 4th District, 17 La An. 282. § 215. v. Judge 4th District, 19 La. An. 4. § 201. v. Judge 4th District, 21 La. An. 736. § 198. v. Judge 4th District, 28 La. An. 451. § 189. v. Judge 6th District, 28 La. An, 905. §§ 187, 198. v. Judge 6th District, 32 La. An. 549. § 198. v. Judge 13th District, 23 La An. 29. § 220. v. Judge 26th District, 24 La An. 1177. §198. v. Jumel, 30 La An. 339. § 105. v. Jumel, 31 La An. 142. §§65, 105. v. Juneau Co. (Sup'rs), 38 Wis. 554. § 215. v. Kansas City, etc. R R, 77 Mo. 143. §§ 291, 296. State v. Kavanagh, 24 Neb. 506. §179. v. Kearney (City), 25 Neb. 262. §§ 228, 230. v. Kendall, 15 Neb. 262. §§ 204, 313. . v. Kenney, 9 Mont 389. §§ 105, 107, 152. Kennington, 10 Eich. (N. S.) 299. §§129,226. Kenosha Cir. Judge, 3 Wis. 809. § 187. Keokuk (City), 9 Iowa, 438. §129. King, 29 Kans. 607. § 302. Kinkaid, 23 Neb. 641. § 201. Kirby, 17 S. C. 81. §87. Kirke, 12 Fla 278. §§40,41, 186, 188, 195. Kirkley, 29 Md. 85. § 155. Kirman, 17 Nev. 380. §§ 78. 154 Kispert, 21 Wis. 387. § 82. Knight, 46 Mo. 83. § 189. Knight, 31 S. C. 81. §§ 87, 314. v. Lady Bryan M. Co. (Trustees), 4 Nev. 400. § 165. v. Lafayette Co. Court, 41 Mo. 221. §§37,47,118. v. Lafayette Co. Court, 41 Mo. 545. §§ 40, 270, 272, 322. v. Lake City, 25 Minn. 404. §128. v. Lancaster, 13 Neb. 223. §§ 62, 305. v. Larrabee, 3 Wis. 783. §§ 23, 193. v. Laughlin, 75 Mo. 358. §§ 36, 46, 61, 203. v. Lawrence, 3 Kans. 95. §§ 102, 319, 322. v. Layton, 28 N. J. L 244. § 24. v. Lazarus, 36 La An. 578. §198. v. Lazarus, 37 La An. 589. §204. v. v. V. V. V. V. V. V. V. lx CASES CITED. State v. Lazarus, 37 La. An. 610, 614. §204. v. Lean, 9 Wis. 279. §§ 65, 125, 249, 250, 272, 274, 286, 288. v. Le Fevre, 25 Neb. 223. § 84. v. Lehre, 7 Rich. 234. £ 75. v. Leon (Sup'rs), 66 Wis. 199. § 234a. v. Lewis, 71 Mo. 170. § 208. v. Lewis, 76 Mo. 370. §§ 61, 62, 264, 309. v. Lewis, 10 Ohio St. 128. §111. v. Licking Co. (Com'rs), 26 Ohio St. 531. § 117. v. Lincoln (Mayor), 4 Neb. 260. §§ 136, 239, 248. v. Liquidation (Board), 42 La. An. 647. § 93. v. Lubke, 85 Mo. 338. § 201. v. Lynch, 8 Ohio St. 347. §§ 78, 135. v. McArthur, 23 Wis. 427. § 210. v. McAuliffe, 48 Mo. 112. § 212. v. McCrillus, 4 Kans. 250. §§ 55, 135. v. McCullough, 3 Nev. 202. §§ 22, 143, 165, 177, 279, 261, 310. v. Macdonald, 30 Minn. 98. §190. v. McKinney, 5 Nev. 194. §§ 65, 121. v. McLeod Co. (Com'rs), 27 Minn. 90. § 130. v. McMillan, 8 Jones, 174. §§111, 282. v. Madison (City), 15 Wis. 30. §§ 129, 240. v. Madison Co. (Com'rs), 92 Ind. 133. § 264. v. Magill.4Kans.114 §135. v. Malcolm, 77 Ga. 671. § 181. v. Manitowoc, 52 Wis. 423. §§ 17, 129. v. Manitowoc Co. (Clerk), 48 Wis. 112. § 307. v. Mantz, 62 Mo. 258. § 133. State v. Marietta, etc. R. R, 35 Ohio St. 154. §84. v. Marks, 74 Tenn. 12. §§ 94, 179, 285, 290. v. Marshall, 82 Mo. 484. § 53. v. Marshall Co. (Judge), 7 Iowa, 186. §§ 55, 179, 224, 230, 309. v. Marston, 6 Kans. 524. §§125, 228. v. Martin, 38 Kans. 641. § 93. v. Martin Co. (Com'rs), 125 Ind. 247. § 30. v. Mason (La., 1891), 9 South. Rep. 776. § 102. v. Matley. 17 Neb. 564. § 242a. v. May hew, 2 Gill, 487. § 19. v. Maysville, 12 S. C. 76. § 130. v. Meadows, 1 Kans. 90. §§ 65, 124. v. Meagher, 57 Vt. 398. §§ 85, 314. v. Meeker, 19 Neb. 444. §§ 152, 309. v. Meiley, 22 Ohio St. 534. §211. v. Miller, 1 Lea, 596. § 212. v. Miller, 45 N. J. L. 251. § 143. v. Mills, 27 Wis. 403. §§ 189, 212«. v. Milwaukee (Chamber Com.), 47 Wis. 670. §§ 157, 168, 170, 286, 315. v. Milwaukee (City), 22 Wis. 397. §§ 260, 294. v. Milwaukee (City), 25 Wis. 122. §§129,237. v. Milwaukee (Com. Coun.), 20 Wis. 87. § 130. v. Missouri P. R. R., 38 Kans. 176. § 159. v. Mitchell, 31 Ohio St. 592. § 65. v. Mobile, etc. R. R, 59 Ala. 321. §§ 55, 163, 260. v. Moffitt, 5 Ohio, 358. §§ 93, 107. v. Monroe, 41 La. An. 241. §198. v. Morgan, 12 La. 118. § 201. CASES CITED. lxi State v. v. V. V. V. V. V. v. Morris. 103 Ind. 161. § 283. . Morris, 43 Iowa, 192. § 116. Moseley, 34 Mo. 375. §§ 105, 153. Moss, 35 Mo. Ap. 441. § 278. Mount, 21 La. An. 352. §§ 126, 234a, 236, 291. Murphy, 41 La. An. 526. §208. Murphy, 19 Nev. 89. §§ 47, 203. Murphy, 3 Ohio C. C. 332. £§ 69, 84, 120. Nebraska Tel. Co., 17 Neb. 126. §§13,25,162. Nelson, 21 Neb. 572. §§ 201, 313. Nemaha County, 10 Neb. 32. §§ 50, 112. New Albany (City), 127 Ind. 22. § 109. New Haven, etc. R. R, 41 Conn. 134. § 159. New Orleans, 34 La. An. 469. §§ 75, 129. New Orleans, 34 La. An. 477. §227. New Orleans, 35 La. An. 68. § 240. New Orleans, etc. R R, 25 La. An. 413. § 160. New Orleans, etc. R R, 37 La. An. 589. §§ 16, 51, 53. New Orleans, etc. R R, 38 La. An. 312. § 160. New Orleans, etc. R R, 42 La. An. 138. §§ 12, 16. Newman, 91 Mo. 445. §§ 140, 153. 285, 288. Nicholls, 42 La. An. 209. § 234a. Noggle, 13 Wis. 380. § 190. North E. R R, 9 Rich. 247. § 159. O'Bryan, 102 Mo. 254. § 204. Odd Fellows G. Lodge, 8 Mo. Ap. 148. § 49. T. V. State v. Omaha (Mayor), 14 Neb. 265. §§ 56, 57. v. Orange (Com. Coun.), 31 N. J. L. 131. § 113. v. Orphans' Court (Judge), 15 Ala. 740. §§ 60, 186, 187, 201, 204. v. Osborne, 24 Mo. Ap. 309. §115. v. Otoe Co. (Com'rs), 10 Neb. 384. §82. v. Ottinger, 43 Ohio St. 457. §§ 305, 306, 315. v. Ousatonic W. Co., 51 Conn. 137. § 158. v. Pacific (Town Trustees), 61 Mo. 155. §§ 130, 260. v. Padgett, 19 Fla. 518. § 294. v. Palmer, 10 Neb. 203. § 143. v. Patterson, 11 Neb. 266. §§82. 242a. v. Patterson, etc. R R, 43 N. J. L 505. §§ 16, 158. v. Patterson (Mayor), 35 N. J. L. 196. § 252. v. Peacock, 15 Neb. 442. §§ 179, 185. v. Peniston, 11 Neb. 100. § 24. v. Pennsylvania R R, 41 N. J. L. 250. §§ 234, 237, 269, 282. v. Pennsylvania R R, 42 N. J. L. 490. §$177, 237. v. People's, etc. Assoc, 43 N. J. L. 389. § 160. v. Perrine, 34 N. J. L. 254. §§ 78- 81. v. Perry Co. (Com'rs), 5 Ohio St. 497. §§ 65, 111. v. Perrysbmg Township (Board of Educ), 27 Ohio St. 46. §130. v. Philips, 96 Mo. 570. §§ 50, 80. v. Philips, 97 Mo. 331. §§ 39, 206, 215. v. Phillips Co. (Com'rs), 26 Kans. 419. §§ 62, 71. Ixii CASES CITED. v. V. V. V. V. State v. Pierce Co. (Sup'rs), 71 Wis. 321. §§ 288, 290, 294. Pitot, 21 La. An. 336. § 153. Platte Co. (Court), 83 Mo. 539. §53. Powell, 10 Neb. 48. § 187. Powers, 14 Ga. 388. §§ 23, 194. Printing Commissioners, 18 Ohio St. 386. § 117. Puckett, 7 Lea, 709. § 238. Putnam Co. (Com'rs), 23 Fla. 632. § 116. Racine (City Coun.), 22 Wis. 258. § 224. Rahway (Assessors), 43 N. J. L. 338. § 20. v. Rahway (Assessors), 51 N. J. L. 279. §§ 294, 296. v. Rahway (Com. Coun.), 33 N. J. L. 110. §§ 138, 224. v. Rahway (Com. Coun.), 50 N. J. L. 350. § 300. v. Railroad, 31 S. C. 609. § 67. v. Rainey, 74 Mo. 229. § 129. v. Randall, 35 Ohio St. 64. § 179. v. Redd, 68 Mo. 106. § 223. v. Republican R. B. Co., 20 Kans. 404. §§ 13. 16. v. Republican V. R. R, 17 Neb. 647. §§ 13, 158. v. Richter, 37 Wis. 275. §§ 121, 235. v. Ricord, 35 N. J. L. 396. § 109. v. Rightor, 40 La, An. 852. §198. v. Rising, 15 Nev. 164. § 221. v. Robinson, 1 Kans. 188. § 110. v. Rodman, 43 Mo. 254. §§ 102, 140, 182. v. Rombauer, 46 Mo. 155. § 160. v. Roscoe (Town), 25 Minn. 445. §128. v. Ruark, 34 Mo. Ap. 325. §119. v. Ryan, 2 Mo. Ap.. 303. §§ 268, 285, 311. State v. Sachs (Wash., 1891), 26 Pac. Rep. 865. § 195. Sachs (Wash., 1891), 27 Pac. Rep. 1075. §§ 189, 203. Saint Bernard (Par. Judge), 31 La. An. 794. § 198. Saint Louis C. Court Judge, 41 Mo. 598. § 192. Saint Louis, etc. Co., 21 Mo. Ap. 526. §§ 49, 57, 68. Saint Louis, etc. R. Co., 29 Mo. Ap. 301. § 161. , Salem Church (Trustees), 114 Ind. 389. § 16. Salem Pleas (Judges), 9 N. J. L. 246. § 189. Savannah, etc. Co., 26 Ga 665. § 159. , Saxon, 25 Fla. 792. §§ 142, 152, 154. Saxton, 11 Wis. 27. § 125. Schaack, 28 Minn. 358. § 222. Schmitz, 36 Mo. Ap. 550. §296. School Districts, 8 Neb. 98. §248. School Fund, 4 Kans. 261. §66. , School Land Com'rs, 9 Wis. 200. § 294. , Scott Co. (Com'rs), 42 Minn. 284 § 251. Secrest, 33 Minn. 381. § 75. , Secretary of State, 33 Mo. 293. § 102. Sewannee Co. (Com'rs), 21 Fla. 1. § 290. Shakspeare (La., 1890), S South. Rep. 893. § 232. Shearer, 30 Cal. 645. § 127. Sheboygan Co. (Sup'rs), 29 Wis. 79. §§ 51, 53, 201. Shelby Co. (Com'rs), 36 Ohio St. 326. § 21. , Sheldon, 2 Kans. 322. § 190. Sheridan, 43 N. J. L. 82. §§ 253, 251, 255, 269, 270, 272. OASES CITED. lxiii State v. Sherwood, 15 Minn. 221. §§ 143, 152, 153, 154. v. Shreveport (City), 29 La. An. 658. §§ 132, 234. v. Shropshire, 4 Neb. 411. §§ 125, 212. v. Slavens, 75 Mo. 508. § 224. v. Slavin, 11 Wis. 153. § 294. v. Slavonska Lipa, 28 Ohio St. 665. §§ 171, 311. v. Small, 47 Wis. 436. § 190. v. Smith, 43 111. 219. §§ 105, 235. v. Smith, 9 Iowa, 334. §§ 297, 303. v. Smith, 104 Mo. 661. §§ 184, 285. v. Smith, 105 Mo. 6. § 205. v. Smith (Mo., 1891), 15 S. W. Rep. 614. § 274. v. Smith, 7 Rich. (N. S.) 275. §242. v. Smith, 8 S. C. 127. § 135. v. Smith, 11 Wis. 65. § 129. v. Smith, 19 Wis. 531. § 205. v. Snodgrass, 98 Iud. 546. § 135. v. Snyder, 98 Mo. 555. §§ 61, 189. v. Somers, 96 N. C. 467. §§ 146. 153. v. Springfield (School Dir.), 74 Mo. 21. § 115. v. Sportsman's, etc. Assoc, 29 Mo. Ap. 96. § 166. v. State Board Health, 103 Mo. 22. .§§ 37, 40, 262, 274. v. State Canvassers (Board), 17 Fla. 29. §§ 179, 182. v. State Canvassers (Board), 36 Wis. 498. § 179. v. Starling, 13 S. C. 262. §§ 126, 135, 136. v. Stearns, 11 Neb. 104. §§ 52, 178, 179, 184, 185, 255, 315. v. Steen, 43 N. J. L. 542. §§ 65. 143, 241. v. Stevens, 23 Kans. 456. § 125. State v. Stewart, 26 Ohio St 216. §184. v. Stock, 38 Kans. 154. § 314. v. Stockwell, 7 Kans. 98. §§ 10, 55. v. Stone, 69 Ala. 206. § 135. v. Stout, 61 Ind. 143. £§ 31. 65. v. Strong, 32 La. An. 173. § 184. v. Sumter Co. (Com'rs), 20 Fla. 859. § 278. v. Sumter Co. (Com'rs), 22 Fla. 1. §§ 280, 283. v. Superior Court (Wash., 1891), 25 Pac. Rep. 1007. § 309. v. Supervisors (Board), 64 Wis. 218. §§ 253, 285, 288. v. Taaffe, 25 Mo. Ap. 446. § 143. v. Tappan, 29 Wis. 664. §§ 65, 129. v. Teasdale, 21 Fla. 652. §§ 51, 147, 148. v. Temperance B. Union, 42 Mo. Ap. 485. §§ 168, 170. v. Texas Co., 44 Mo. 230. § 40. v. Thatch, 5 Neb. 94. § 125. v. Thayer, 10 Mo. Ap. 540. §§ 196, 313. v. Thayer, 15 Mo. A p. 391. § 194. v. Thayer (Neb., 1891), 47 N. W. Rep. 704. § 93. v. Thompson, 36 Mo. 70. §§ 143, 153. v. Timken, 48 N. J. L. 87. §68. v. Todd, 4 Ohio, 351. §§ 190, 213. v. Tolle, 71 Mo. 645. § 21. v. Towns, 8 Ga, 360. § 94. v. Trammel (Mo., 1891), 17 S. W. Rep. 502. §§ 274, 280, 315. v. Trent, 58 Mo. 571. §§ 24, 15G. v. Turner, 32 S. C. 348. §§ 83, 123. v. Union (Town Coun., N. J., 1889), 18 Atl. Rep. 571. §§ 135, 234. v. Union Merchants' Exchange, 2 Mo. Ap. 96. § 166. lxiv CASES CITED. State v. Union Township, 42 N. J. L. 531. § 225. v. Union Township, 43 N. J. L. 518. § 296. v. Union Township, 9 Ohio St. 599. § 253. v. Van Duyn, 24 Neb. 586. §230. v. Van Ells, 69 Wis. 19. § 212. v. Verner, 30 S. C. 277. §§ 81. 56. v. Wabash, etc. Canal Trustees, 4 Ind. 495. §§ 18, 165. v. Walker, 5 Eich. (N. S.) 263. §125. v. Ware, 13 Oreg. 381. § 230. v. Warrnoth, 22 La. An. 1. § 94. v. Warrnoth, 23 La. An. 76. §§ 33, 110. v. Warner, 55 Wis. 271. §§ 102, 105, 126, 203, 238, 294. v. Warren Co. (Trustees), 1 Ohio St. 308. § 57. v. Warren, etc. Co., 32 N. J. L. 439. § 160. v. Warrick Co. (Com'rs). 124 Ind. 554. §§ 142, 152. v. Washburn, 22 Wis. 99. § 187. v. Washington Co. (Sup'rs), 2 Chandl. 247. §§ 31, 33, 56. v. Waterman, 5 Nev. 323. § 241. v. Watertown (Com. Coun.). 9 Wis. 254. §§ 31, 147, 148, 275. v. Watts, 8 La. 76. § 187. v. Wear, 37 Mo. Ap. 325. § 152. v. Weeks. 93 Mo. 499. § 279. v. Weld, 39 Minn. 426. §§ 224, 228, 230, 296. v. Wellman, 83 Me. 282. § 116. v. West Baton Rouge (Prob. Judge), 8 Rob. 193. § 198. v. Whitcomb, 28 Minn. 50. §§ 94, 106. v. White, 82 Ind. 278. § 115. v. Whittemore, 11 Neb. 175. § 184. v. Whittemore, 12 Neb. 252. § 121. State v. Whittet, 61 Wis. 351. §§ 189, 190. v. Whitworth, 76 Tenn. (8 Lea), 594. §§ 53, 65, 127, 133. v. Wickham, 65 Mo. 634. §§ 51, 53, 194, 283. v. Wier (Neb., 1891), 49 N. W. Rep. 785. §§ 132, 234a. v. Williams, 69 Ala. 311. §§ 10, 29, 186, 196, 204, 267. v. Williams, 25 Minn. 340. §153. v. Williams, 95 Mo. 159. §§ 31, 178. 179, 183. v. Williams, 96 Mo. 13. §§ 14, 242, 274. 280. v. Williams, 99 Mo. 291. §§ 140, 153, 242a, 243. v. Wilmington (Com. Coun.), 3 Har. 294. § 40. v. Wilmington B. Co., 3 Harr. 312. §§ 53, 159, 246. v. Wilson, 17 Wis. 687. §§ 109, 126, 129. v. Winn, 19 Wis. 304. § 121. v. Wood Co. (Sup'rs), 41 Wis. 28. §116. v. Wright, 4 Nev. 119. §§ 31, 201, 202. 205, 313. v. Wright, 10 Nev, 167. §§ 53, 54, 165, 224, 242a, 248, 255. v. Wrotnowski, 17 La. An. 156. § 102. v. Yeatman, 22 Ohio St. 546. §126. v. Young, 38 La. An. 923. §§ 12, 198. v. Zanesville, etc. Co., 16 Ohio St. 308. §§ 16. 57, 319, 322. State ex rel. Nabor, 7 Ala. 459. §199. State ex rel. Stow, 51 Ala. 69. § 204. State Board of Educ. v. West Point, 50 Miss. 638. §§ 29, 56. 129, 130, 255, 296. Steele v. County Com'rs, 83 Ala. 304. §116. CASES CITED. lxv Stevenson v. Summit (Dist. Town), 35 Iowa, 462. §§ 129, 130. Steward v. Eddy, 7 Mod. 143. § 189. v. Peyton, 77 Ga. 668. § 181. Stewart v. St. Clair Co. (Just.), 47 . Fed. Rep. 482. § 314. Stock Exchange v. Board of Trade, 127 111. 153. § 25. Stockton, etc. R. R. v. Stockton, 51 Cal. 3?s. § 40. Stoddard v. Benton, 6 Colo. 508. §§ 228, 229. Stone v. McCann, 79 Cal. 460. § 204. v. Small, 54 Vt. 498. §§ 143, 154. Stonesifer v. Armstrong, 86 Cal. 594. § 192. Stout v. Hopping, 17 N. J. L. 471. §187. Street v. Gallatin Co. (Coin rs), Breese, 25. §§ 147, 148. Strong, Petitioner, 20 Pick. 484. §§ 140. 146, 242a. Strong's Case, Kirby, 345. § 124. Sturgis v. Joy, 2 El. & Bl. 739. §187. Sullivan v. Peckham, 16 R. I. 525. §§ 75, 127. Supervisors v. People, 24 111. A p. 410. § 111. v. United States, 4 Wall. 435. §34. v. United States, 18 Wall. 71. §§ 13, 50, 60, 129, 218. Supreme Council v. Garrigues, 104 Ind. 133. § 169. Swanbeck v. People, 15 Colo. 64. § 255. Swann v. Buck, 40 Miss. 268. §§ 65, 105. v. Gray, 44 Miss. 393. §§ 118, 245, 249, 267, 268, 270. v. Work, 24 Miss. 439. § 105. Swartz v. Lange (Kans., 1891), 22 Pac. Rep. 992. §§ 56, 82, 143. v. Nash, 45 Kans. 341. § 190. T. Talcott v. Harbor Com'rs, 53 Cal. 199. § 222. Taylor, Ex parte, 5 Ark. 49. § 111. Taylor, Ex parte, 14 How. 3. §K 187, 248, 261, 322. Taylor v. Gillette, 52 Conn. 216. §189. v. Hall. 71 Tex. 206. § 89. v. McPheters, 111 Mass. 351. §75. v. Moss, 35 Mo. Ap. 470. § 291. Tarver v. Tallapoosa (Com'rs Court), 17 Ala. 527. §§ 34, 55, 56, 129. Tawas, etc. R. R v. Iosco Circuit Judge, 44 Mich. 479. §§ 10, 52, 55, 200. 214. Telegraph Co. v. Texas, 105 U. S. 460. § 25. Temple v. Superior Court, 70 Cal. 211. §203. Ten Eyck v. Farlee, 16 N. J. L. 348. §205. v. Farlee, 1 J. Harr. (N. J.) 269. 348. § 206. Tennant v. Crocker, 85 Mich. 328. §§ 62, 63, 64, 75, 310. Tennessee, etc. R R. v. Moore, 36 Ala. 371. §§ 65, 93. Terhune v. Barcalovv, 11 N. J. L. 38. § 212. Territory v. Cole, 3 Dak. 301. § 229. v. Judge District Court, 5 Dak. 275. §§ 203, 204. v. Ortiz, 1 N. Mex. 5. § 204. v. Potts, 3 Mont. 364. §§ 93, 245, 264, 314. v. Shearer, 2 Dak. 332. § 154. v. Woodbury (N. Dak., 1890), 44 N. W. Rep. 1077. § 72. Thomas v. Armstrong, 7 Cal. 286. §§ 31, 39, 119. v. Hamilton Co. (Auditor). Ohio St. 113. §§23, 133. v. Smith, 1 Mont 21. §§ 126, 135. lxvi CASES CITED. Thomason v. Justices, 3 Humph. 233. § 143. Thompson, Ex parte, 6 A. & E. (N. S.) 721. § 293. Thompson v. United States, 103 U. S. 480. §§ 238, 279, 290, 303. Thornton, Ex parte, 46 Ala. 384. §199. Thornton v. Hoge, 84 CaL 231. §§ 32, 187, 190. Thorpe v. Keeler, 3 Hair. (N. J.) 251. §206. Tilden v. Sacramento Co. (Sup'rs), 41 Cal. 68. §§ 32, 37, 126. Tobey v. Hakes, 54 Conn. 274. §S 16, 160. Towle t. State, 3 Fla. 202. § 104 Townes v. Nichols, 73 Me. 515. §§ 56, 64, 81, 160. Townsend's Case, 1 Lev. 91. § 137. Townshend v. Mclver, 2 Rich. (N. S.) 25. § 160. Trapnall, Ex parte, 6 Ark. 9. §§ 10, 189. Treadway v. Wright, 4 Nev. 119. §46. Treat v. Middletown (Town), 8 Conn. 243. § 116. Tremont School Dist. v. Clank, 33 Me. 482. § 135. Trenton, etc. Co., In re, 20 N. J. L. 659. §§ 53, 158, 159. Trinity, etc. R. R. v. Lane, 79 Tex. 643. § 192. Trustees of Canal (Board) v. People, 12 111. 248. § 269. Trustees Rugby Charity, Ex parte, 9 D. & R. 214. § 22. Tucker v. Iredell (Just), 1 Jones, 451. §g 255, 292, 315, 322. Tuolumne Co. v. Stanislaus Co., 6 Cal. 440. §§ 126, 310. Turner, In re, 5 Ohio, 542. §§ 10, 61. Turner v. Malony, 13 Cal. 621. §§ 104, 153. Turnpike Co. v. Brown, 8 Baxt. 490. §94. Tyler v. Hamersley, 44 Conn. 393. §309. U. Union Church v. Sanders, 1 Houst. 100. §§ 22, 49. Union Colony v. Elliott, 5 Colo. 371. §§ 188, 204. Union Co. Court v. Robinson, 27 Ark. 116. § 187. Union P. R. R. v. Davis Co. (Com'rs), 6 Kans. 256. § 128. v. Hall, 91 U. S. 343. § 220. Uniontovvn (Borough) v. Common- wealth, 34 Pa St. 293. §116. United States, Ex parte, 16 Wall. 699. § 203. United States v. Addison, 22 How. 174. §§305,308,309. v. Ames, 99 U. S. 35. § 269. v. Badger, 6 Biss. 308. 239. v. Bank of Alexandria, 1 Cranch, C. C. 7. § 51. v. Bayard, 15 Dist. Col. 370. §100. v. Bayard, 16 Dist Col. 428. §274. v. Black, 128 U. S. 40. §§ 100, 101, 109, 216, 217. v. Blaine, 139 U. S. 306. §§ 100, 101. v. Boutwell, 3 MacArth. 172. §100. v. Boutwell, 17 Wall. 607. §§ 223, 224, 238. v. Brooklyn (Town), 10 Biss. 466. § 225. v. Buchanan Co., 5 Dili 285. §§ 111, 130, 298. v. Clark County, 95 U. S. 769. §§ 50, 285. v. Columbian Ins. Co., 2 Cranch, C. C. 266. § 309. CASES CITED. lxvii United States v. Commissioner, 5 Wall. 563. § 31. v. Dubuque Co. (Com'rs), Mor- ris, 31. §239. v. Elizabeth City, 42 Fed. Rep. 45. §§222,260. v. Fossatt, 21 How. 445. § 189. . v. Galena (City), 10 Biss. 263. §§ 20, 130, 132. v. Gomez, 3 Wall. 752. §§ 208, 216. v. Guthrie, 17 How. 284. §§ 100, 101. v. Guthrie, 58 U. S. 284. § 306. v. Hall, 18 Dist. Col. 14. § 101. v. Jefferson County, 5 Dill. 310. §129. v. Kendall, 5 Cranch, C. C. 385. §§ 297, 300. v. Kendall, 12 Pet. 524. § 217. v. Lawrence, 3 Dal. 42. § 187. v. Lee County, 2 Biss. 77. §§ 218, 219, 266. v. Lincoln County (Just), 5 Dill. 184. §§ 20, 129. v. Lynch, 137 U. S. 280. § 100. v. Macon County, 99 U. S. 582. §129. v. New Orleans, 98 U. S. 381. §§ 129, 131, 218. v. New Orleans, 2 Wood, C. C. 230. §60. v. Oswego (To%vn), 28 Fed. Rep. 55. §§218,314. v. Ottawa (Board Aud.), 28 Fed. Rep. 407. § 314. v. Pearson, 32 Fed. Rep. 309. §217. v. Peters, 5 Cranch, 115. § 189. v. Raum, 135 U. S. 200. §§ 31, 32, 100, 101, 109. v. Schurz, 102 U. S. 378. §§ 101, 234, 310. v. Silverman, 4 Dill. 224. § 218. v. Stirling (City), 2 Biss. 408. §130. United States v. Union Pac. R. R, 2 Dill. 527. § 217. v. Union Pac. R. R, 4 Dill. 479. §294. v. Whitney, 16 Dist. Col. 370. §30. v. Windom, 137 U. S. 636. §§31, 101. Y. Vanderveer v. Conover, 16 N. J. L 271. §187. Van Etten v. Butt (Neb., 1891), 49 N. W. Rep. 365. § 190. Van Norman v. Circuit Judge, 45 Mich. 204. § 200. Van Rensselaer v. Sheriff, 1 Cow. 501. §§ 73, 123. Van Vabry v. Staton, 88 Tenn. 334. §190. Van Vranken v. Gartner, 85 Mich. 140. §200. Vail v. People, 1 Wend. 38. § 285. Vicksburg (Mayor) v. Rainwater, 47 Miss. 547. §§ 140, 184. Vicksburg R R v. Lowry, 61 Miss. 102. § 94. Vincent v. Bowes, 78 Mich. 315. §§ 41, 187, 188. Virginia v. Rives, 100 U. S. 313. §§ 40, 186, 188. Virginia Commissioners, Ex parte, 112 U. S. 177. §§ 51, 209. Virginia, etc. R. R v. Ormsby Co. (Com'rs), 5 Nev. 341. § 111. Von Hoffman v. Quincy (City), 4 Wall. 535. § 20. w. Wabash, etc. Canal (Trustees) v. Johnson, 2 Ind. 219. §109. Wachtel v. Noah Widows', etc. Soc, 84 N. V. 28. § 168. Wallcott v. Mayor, 51 Mich. 249. § 87. lxviii CASES CITED. Waldron v. Lee, 5 Pick. 323. §§ 83, 135. Walker, Ex parte, 54 Ala. 577. § 199. Walker v. Wainwright, 16 Barb. 486. § 176. Walker's Case, Cas: Temp. Hardvv. 212. §175. Walkley v. Muscatine (City), 6 Wall. 481. §§ 43, 218. Walls v. Palmer, 64 Ind. 493. §§ 195, 216. Walter v. Belding, 24 Vt. 658. §§ 24. 154. Walter Brothers, 89 Ala. 237. § 189. Ward v. Curtis. 18 Conn. 290. § 123. v. Flood, 48 Cal. 36. §§115, 285. Ware, Ex parte. 48 Ala. 223. § 199. v. McDonald, 62 Ala. 81. § 208. Warner v. Myers, 4 Oreg. 72. §§23, 142, 154, 155. Warren Co. (Sup'rs) v. Klein, 51 Miss. 807. §§ 129, 130. Washington I. Co. v. Kansas P. R R, 5 Dill. 489. § 315. Washington University v. Green, 1 Md. Ch. 97. § 43. Washoe Co. (Com'rs) v. Hatch, 9 Nev. 357. §§ 55, 155. Watts v. Carroll (Pol. Jury), 11 La. An. 141. § 224. v. Port Deposit (Pres.), 46 Md. 500. § 305. Weber v. Lee County, 6 Wall. 210. §§ 217. 218, 312. v. Zimmerman. 23 Md. 45. §§ 290, 297, 300, 312. Webster v. Newell, 66 Mich. 503. §§42, 106. Weeden v. Richmond (Council), 9 R I. 128. §§ 37, 178. Weeks v. Smith, 81 Me. 538. § 229. Welch v. St. Genevieve, 1 Dill. 130. §218. Wrstbrook v. Wicks, 36 Iowa, 362. § 215. Western II. I. Co. v. Wilder, 40 Kans. 561. § 106. Western R R. v. De Graff, 28 Minn. 1. §94. Weston v. Dane, 51 Me. 461. §§ 89, 103. Wheeler v. Northern C. I. Co., 10 Colo. 583. §§ 253, 270, 294. Wheelock v. Auditor, 130 Mass. 486. §53. White v. Brownell, 2 Daly, 329. §§ 49, 173. v. Buskett, 119 Ind. 431. §§ 187, 189. v. Holt, 20 W. Va. 792. §§ 220, 273. White River Bank, In re, 23 Vt. 478. §§ 24, 234a, 252. White's Case, 6 Mod. 18. § 195. White's Creek T. Co. v. Marshall, 2 Baxt. 104. §§ 42, 43. Whitfield v. Greer, 3 Baxt 78. §215. Whittington, Ex parte, 34 Ark. 394. §§ 34, 313. Widdrington's Case, 1 Lev. 23. §§ 6, 175. Wigginton v. Markley, 52 Cal. 411. §121. Wiley, Ex parte, 54 Ala. 226. §§ 148, 149. Wilkins v. Mitchell, 3 Salk. 229. §51. Wilkinson v. Cheatham, 43 Ga. 258. § 129. Willard v. Superior Court. 82 Cal. 456. § 187. Willeford v State, 43 Ark. 62. §§ 108, 178. Williams v. Clayton (Utah, 1889), 21 Pac. Rep. 398. §§ 53, 153. v. County Commissioners, 35 Me. 345. § 29. v. Judge. 27 Mo. 225. § 51. v. Mutual Gas Co., 52 Mich. 499. § 27. v. Saunders, 5 Cold. 60. § 189. v. Smith, 6 CaL 91. § 123. CASES CITED. lxix "Williamsburgh (trustees). In re, 1 Barb. 34. §§ 53, 284 Williampport (City) v. Common- wealth. 90 Pa. St. 498. §§ 61, 62, 129, 132, 135. Winstanley v. People, 92 111. 402. § 242. Winston v. Moseley, 35 Mo. 146. §§ 105, 153. Winter v. Baldwin, 89 Ala. 483. §161. Winters v. Burford, 6 Cold. 328. §§ 13, 57, 123, 256. Wintz v. Board of Education, 28 W. Va. 227. §§ 31, 115. Wise v. Bigger. 79 Va. 269. §;$ 109, 228, 230, 270. Withers v. State, 36 Ala. 252. §§195, 255, 305. Woffenden, In re, 1 Ariz. 237. §§ 21, 30. Wolfe v. McCaull. 76 Va. 876. § 109. Wolff v. New Orleans, 103 U. S. 358. §20. Wood v. Farmer, 69 Iowa, 533. § 77. v. Strother, 76 Cal. 545. §§ 47, 313. Woodbury v. County Oom'rs, 40 Me. 304. S 77. Woodruff, Ex parte. 4 Ark. 630. §297. Woodruff v. New York, etc. R. R., 59 Conn. 63. §§ 246. 274. Worcester v. Schlesinger, 16 Cray, 166. § 34. Wormwell v. Hailstone, 6 Bing. 668. §19. Wren v. Indianapolis (City), 96 Ind. 206. § 237. Wright v. Fawcett, Burr. 2041. §§ 276, 277. v. Johnson, 5 Ark. 687. §§ 189, 273. Y. Yeager, Ex parte, 11 Gratt. 655. §119. York v. Ingham, 57 Mich. 421. §200. York, etc. R. R. v. Queen, 1 El. & Bl. 858. § 159. Yost v. Gaines, 78 Tenn. 576. § 228. Younger v. Supervisors, 68 Cal. 241. §37. Zanone v. Mound City, 103 111. 552. §40. MANDAMUS. CHAPTEE 1. DEFINITION AND HISTORY OF THE WRIT OF MANDAMUS. § 1. Definition of the writ of mandamus. 2. Origin of the writ 3. The writ is a common-law writ 4. Formerly no traverse was allowed. 5. When a traverse was allowed to the return. 6. English common law as adopted in America. 7. Statute of Anne adopted. 8. Extension of the writ in England. 9. Uncertainty as to the limits of its use. § 1. Definition of writ of mandamus. — A writ of mcm- Clay v. Bolland (Ya, 1891), 13 ees), 114 Ind. 389 ; State v. Patter- South E. Eep. 262. son, etc. R R, 43 N. J. L. 505 ; State 2 Post, § 25. v. Einstein, 46 N. J. L. 479 ; Ken- 3 Benson v. Paul, 6 EL & BL 273 ; nedy v. Board of Education, 82 CaL State v. Republican R B. Co., 20 483. Kans. 404 ; People v. Dulaney, 96 4 State v. New Orleans, etc R R, 111 503 ; Tobey v. Hakes, 54 Conn. 42 La. An. 138. 274 ; State v. Salem Church (Trust- 10 SCOPE OF THE WRIT. [§ 16. for breach of contract ; ' to a contractor, who had contracted with the board of education for the deposit of its money with him, to compel its treasurer to make such deposit ; 2 against the commissioner of public works, to compel the execution of a contract with the relator for which he had bid ; 3 to enforce the contract of a county to pay for vol- unteers ; 4 to make a railroad keep a street in repair as re- quired by its contract with the city; 5 to the state to com- pel a company to keep a bridge in repair, which, in return for a grant of land by the state, it had contracted to do ; 6 and to compel arbitrators to proceed under an arbitration agreement, which was a common-law arbitration, and not under the statute providing for its becoming a decree of the court. 7 The writ was refused to a board of county commissioners to compel a turnpike company to keep a bridge in repair as it had contracted with them to do. 8 Where one had contracted with 'a city, which refused to pay him, it was held that a mandamus would not lie to compel any officer to facilitate his pa} T ment by signing a warrant, and that the officers acted for the corporation, and owed him no duty. 9 It was sought by mandamus to compel a city to construct a public street, not yet opened, in a certain way, in accordance with a contract made with the relator, it being also alleged that such proposed construction was taken into consideration in assessing the relator's damages and ben- efits. The court held that the relator's rights rested wholly on a special contract, which involved no questions of public trust or official duty, and the writ was refused. 10 By its 1 Portman v. Fish Commissioners, ' People v. Nash, 47 Hun, 542. 50 Mich. 258. Where, however, by statute, the 2 Board of Education v. Runnels, arbitration may become a rule of 57 Mich. 46. court, a mandamus may issue. See 3 People v. Thompson, 99 N. Y. § 24. 641. 8 state v. Zanesville, etc. T. Co., 16 4 State v. Howard Co., 39 Mo. 375. Ohio St 308. estate v. New Orleans, etc. R R, » People v. Wood, 35 Barb. 653. 37 La. An. 589. »« Parrott v. Bridgeport (City), 44 6 State v. Republican R B. Co., 20 Conn. 180. Kans. 404. § IT.] SCOPE OF THE WRIT. 11 charter a railroad was allowed to build its line along a cer- tain route, provided it first contracted with a cemetery company to build a wall where its line ran along the cem- etery. The cemetery company asked for a mandamus to compel the railroad to build the wall which it had con- tracted to do. The court held that the railroad had com- plied with its charter duty in building its line, and that the contract could only be enforced by the usual means. The mandamus was refused, though the railroad had then be- come bankrupt. 1 It is immaterial on the question of man- damus what may be the form of the contract, 2 or that its execution, 3 or that its annulment, 4 is sought. § 17. Writ not lie to compel payment of debts. — Since this writ is intended for public rights, it does not lie merely to compel the payment of debts. It cannot be used to compel municipal authorities to pay the salaries due its officers, since a suit in assumpsit may be brought; 5 nor to recover moneys expended or misapplied by public offi- cers, there being another remedy which is exclusive;" nor to compel a city to levy a tax to pay its bonds, which are questioned in law and in fact, till a judgment has been obtained thereon in the usual way ; 7 nor to compel a mut- ual benefit association to levy an assessment to pay a death loss, where it denies all liability, till the question has been determined by a suit. 3 The form of the contract of a pri- vate association cannot confer jurisdiction on the court for a proceeding by mandamus; 9 nor can the stipulation or agreement of the parties change the extent or uses of the writ ; 10 nor will the court extend the remedy to cases to i State v. Patterson, etc R. R, 43 6 Elder v. Washington Ter., 3 N. J. L. 505. Wash. Ter. 438. 2 Burland v. Northwestern M. B. 7 State v. Manitowoc, 52 Wis. Assoc, 47 Mich. 424 423. 3 People v. Thompson, 99 N. Y. 8 Burland v. North West M. B. 641, Assoc, 47 ilich. 424. * Detroit F. P. Co. v. Board of 9 Burland v. North West M. B. Auditors, 47 Mich. 135. Assoc, 47 Mich. 424. » State v. Hannon, 38 Kans. 593. "Biggs v. McBride, 17 Oreg. 640. See, however, ch. 12. 6 12 SCOPE OF THE WRIT. [§§ 18, 19. which it does not apply, although the parties waive all ob- jections thereto. 1 § 18. Exceptions as to collecting debts by this writ. — There are, however, exceptions to the rule that a mandamus does not lie to compel the payment of debts. The writ will issue where a ministerial officer has money in his hands which it is his duty to pay to the party entitled to it under the law. The rule is, that a ministerial officer, who has in his hands a specific fund, may be compelled by this writ to make distribution of the fund. 2 It has been granted: to compel a ditch commissioner, who had collected assess- ments, levied for the construction of a ditch, to distribute to the contractor the amount due him for constructing the ditch; 3 to compel the adjustment of the account of the superintendent of a public asylum, whose salary was pay- able out of a particular fund, by the proper officer ; 4 and to compel a railroad to pay to the county judge the damages assessed against it for taking land for its right of way, which land it was occupying. 5 § 19. Exceptions continued. — "Where, however, a party is entitled to the payment of money, and there is no other way of collecting it, to prevent a failure of justice the writ of mandamus has been allowed to enforce a duty imposed by law on public officers or corporations." There being no other remedy the writ was allowed : against a company to compel payment for land taken for their water-works; 7 to collect the sum awarded by a jury for land taken by the harbor commissioners under a statute ; 8 and to cause com- pensation to be made out of general or special taxes for * 1 Lord Campbell in Reg. v. Treas- 5 State v. Grand Island R. R., 27 ury, 15 Jur. 767. Neb. 694. 2 Ingerman v. State [Ind., May 1, 6 R. v. St. Katherine Dock Co., 1891], 27 North E. Rep. 499 ; Illi- 4 B. & Ad. 360 ; Worrnwell v. Hail- nois State Hospital v. Higgins, 15 stone, 6 Bing. 668. See § 130. 111. 185 ; State v. Wabash, etc. "' King v. Nottingham O. W. W., Canal (Trustees), 4 Ind, 495. 6 A. & E. 355. 3 Ingerman v. State, supra. §Q. v. Swansea Harbor (Trustees), 4 Illinois State Hospital v. Hig- 8 A. & E. 439. gins, 15 111. 185. I 20.] SCOPE OF THE WKIT. 13 damages sustained in making certain public improvements. 1 The law authorized the president of a bank to retain from- its dividends or profits a sufficient sum of money to meet the taxes levied on its stock and to pay the money to the state. The other property of the bank was exempt from taxation. The state had no other remedy, and had no lien, and no action against any one. The writ was issued to com- pel the president of the bank to pay over the money. 2 The liability of a railroad company for taxes assessed against it was affirmed in the supreme court. The railroad had been leased to a foreign company, which had agreed to pay to the stockholders interest on their stock. There being no other remedy, a mandamus was issued to compel the pay- ment of these taxes. 3 Where the funds of a school board were held by a city treasurer and paid out by him on drafts issued by the school board, a creditor of the latter was al- lowed by a mandamus proceeding to prove up his claim and to obtain an order for the school board to issue to him a draft on the city treasurer for the amount found to be due to him. 4 § 20. Change of law as aiFecting mandamus.— By the provisions of the United States constitution no state can pass a law impairing the obligation of a contract. This obligation includes the means provided by law to compel a compliance with the provisions of the contract. When a public corporation possessing a power to levy taxes to pay its debts enters into a contract whereby it incurs a debt, and a law is subsequently passed which takes away or sub- stantially impairs such taxing power, such law is void as to such contract, and the creditor on default of payment may by mandamus compel the corporation to levy a tax under the old law for the purpose of paying the debt due him, provided there is no other adequate and specific remedy. 5 1 Q. v. Wallasey Board of Health, 4 Raisch v. Board of Education, 10 B. & S. 428. 81 Cal. 542. 2 State v. Mayhew, 2 GUI, 487. » Wolff v. New Orleans, 103 U. S. 3 Person v. Warren R. R, 32 N. J. 358 ; Ralls Co. v. United States, 105 L, 441. U. S. 733 ; Von Hoffman v. Quincy 14 SCOPE OF THE WKIT. [§ 20. When such law, though to some extent changing the rem- edy, does not impair the obligation of the contract, it will be applied to such contract. 1 Even the right to a writ of mandamus may be taken away without any violation of the constitution of the United States or of the state, pro- vided an adequate and efficacious remedy be left.' 2 When, on the other hand, a subsequent law gives other and addi- tional means for enforcing the obligation of a contract, as by subjecting other property to a liability therefor, or by increasing the power of taxation, the party interested may avail himself thereof. 3 (City), 4 Wall. 535 ; State v. Rahway States v. Lincoln County (Just), 5 (Assessors), 43 N. J. L. 338 ; Assessor Dill. 184. of Taxes v. State, 44 N. J. L. 395 ; Rees J Antoni v. Greenhow, 107 U. S. v. Watertown (City), 19 Wall. 107 ; 769. Louisiana v. Pilsbury, 105 U. S. 278 ; 2 Poindexter v. Greenhow, 81 Va. Duperier v. Iberia Parish (Police 441. Jury), 31 La. An. 709; Canova v. 3 Cape Girardeau County Court v. State, 18 Fla. 512 ; Columbia County Hill, 118 U. S. 68 ; Clay County v. (Com'rs) v.King, 13 Fla. 451; United McAleer, 115 U. S. 616; United States v. Galena (City), 10 Biss. 263. CHAPTER 4. HOW FAR THE WRIT IS CONFINED TO PUBLIC RIGHTS AND AGALNST PUBLIC OFFICERS. § 21. Is the writ confined to public rights in England? 22. American rule. 23. The writ will not run against a private person or one not acting officially. 24. Subject continued. 25. Mandamus to parties assuming public duties. 26. When is property devoted to public uses. 27. Mandamus lies to those holding public franchises. 27a. Mandamus runs to railroad corporations. 28. The writ runs against any corporation. § 21. Is the writ confined to public rights in England?— 1, It has often been decided that the writ of mandamus is never issued, except in the cases of public persons or officers, and to compel the performance of public duties. 1 Other courts have expressed the same idea by different phraseol- ogy. The writ lies, only for the enforcement of public duties enjoined by law, 2 only where there is a plain dereliction of duty by public officers, 3 only when the party required to act occupies some official or quasi-officml position, 4 only to enforce official duty imposed by statute, 5 regularly only in cases relating to the public and the government, 6 only where a public trust or official duty is involved, 7 or only to compel the performance of duties imposed by law. 8 It ' 3 Stephen's Nisi Prius, 2291, 2292 ; 3 State v. Comm'rs of Shelby Co., R v. London Assur. Co., 5 B. & Aid. 36 Ohio St 326. 901 ; American R. F. Co. v. Haven, * State v. ToUe, 71 Mo. 645. 101 Mass. 398 ; R. v. Bank of En- » Bank of State v. Harrison, 66 gland, 2 B. & Aid. 620 ; R v. Clear, Ga, 696. 4B.&C. 901 ; R. v. Stafford, 3 T. R « Bacon's Ab., title " Mand." 646. ' Parrott v. City of Bridgeport, 44 2 Chumasero v. Potts, 2 Mont 242. Conn. 180. 8 Bailey v. Oviatt, 46 Vt 627. \Q WRIT CONFINED TO PUBLIC EIGHTS. [§ 21. is issued to an inferior tribunal, corporation, board or per- son, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. 1 Notwithstanding these decisions, it is not clear that the writ is confined to public officers or to public af- fairs. Lord Mansfield is credited with being the judge who developed this writ into one of great usefulness. 2 Prior to his chief justiceship the writ had been used principally, if not entirely, to enforce restitution to public offices, and it is always designated in the older abridgments and reports as " the writ of restitution." 3 He acted on the principle, that where there is a wrong there should be a remedy, and decided that where there is a right to execute an office, perform a service or exercise a franchise, and a person is kept out of possession or dispossessed of such right, the writ of mandamus should issue to assist such person, as a matter of justice, and as a matter of public policy to pre- serve peace, order and good government. 4 A chaplain was kept out of his chapel by one of his parishioners. There were lands attached to the chapel, which belonged to the chaplain by right of his function. The court held that the chaplain was entitled to the writ to restore him to his chap- laincy. This was a private right, and the principal rea- sons operating on the court seemed to be, that otherwise he was remediless, it being very doubtful whether, under the circumstances of the case, he could bring an action of trespass or of ejectment. 5 In a subsequent case Lord Mans- field restored a dissenting clergyman to his pulpit who had certain emoluments attached to his position or function. The court inclined to the opinion that, since the act of toleration, dissenters and their religious worship should have the as- sistance of the law, probably because such protection was i State v. Gracey, 11 Nev. 223; 2 People v. Steele, 2 Barb. 397. People v. Insp. State Prison, 4 Mich. 3 Tapping on Mandamus, 3. 187; Fremont v. Crippen, 10 Cal. * Kex v. Barker, 3 Burr. 1265. 211 ; Smalley v. Yates, 36 Kan. 519 ; 5 R e x v. Blooer, 2 Burr. 1043. In re Woffenden, 1 Ariz. 237 ; Boggs v. Chicago, etc. R. R., 54 Iowa, 435. § 22.] WKIT CONFINED TO PUBLIC EIGHTS. 17 extended to the state-church. In this opinion it was not considered necessary that the function should be a matter of public concern or attended with profit ; but if such ques- tions were involved in the case, the inducement would be greater for the court to act. 1 In another case a few years later a dissenting clergyman was restored to his pulpit. "Whether there were any emoluments in this case does not appear, the note thereof being very brief. 2 In fact, as is well known, the phraseology of the decisions rendered at this period and at an earlier date cannot be relied on, since they were often transcribed by the reporters from memory, or from the notes on the papers, and an examination shows that the various reporters often differ in their reports of the same case as to the statements of the judges. The later decisions seem inclined to limit the writ to public affairs. The writ has often been issued to ecclesiastical officers, such as bishops, but they were by law recognized as state officers, and were called on to perform duties imposed on them by law. On the other hand, the writ has been refused for an office not found in the books and not judicially known. 3 § 22. American rule. — 2. In the American courts there are but few cases to be found where the writ has been ap- plied for, for a function dissociated from a public right, a public office or a corporation. The courts often quote with approval Lord Mansfield's ruling on the subject in Rex v. Barker, but, since the states have generally accepted the common law as it existed at the time of the first settle- ments in this country, such rulings, made one hundred and fifty years later, are of course not binding. The common law relative to mandamus, as adopted in this country, was very vague and ill-defined, and in the absence of statutory definitions the courts have been compelled to establish the principles governing the issuance of this writ, and to a great extent they have followed the rulings of Lord Mansfield. In Maryland, in 1799, a minister applied for the writ against 1 Rex v. Barker, supra. 3 Anon., 2 Chit 253. 2 Rex v. Jotham, 3 T. R 575. 2 .. _. . 18 WKIT CONFINED TO PUBLIC EIGHTS. [§ 22. the elders of his congregation. The real estate of the church was held in trust. By contract with the elders he agreed to preach to the congregation, and the elders contracted to furnish him with a house and a certain stipend annually. The court held that he was dispossessed of a function, carry- ing with it temporal rights, and that religion was a matter of public concern, and the writ was issued. 1 In the same state, in 1805, a priest sought the writ against members of a certain congregation, to which he had been assigned by the bishop, Avho kept him out of the place and its functions. It does not appear whether there were any emoluments attached to the position, nor whether the church was a cor- poration. The peremptory writ was issued because the return was adjudged insufficient in its statements. 2 In Delaware, in 1855, a preacher applied for the writ against the parties who held the church property in trust, alleging that they would not allow him to occupy the pulpit of the church and preach to the congregation, which he was en- titled to do under the laws of that religious denomination. The writ was refused, because it did not appear that there were any emoluments or compensation of any kind attached to the position or function of a preacher in charge of the church in question. 3 In Massachusetts, in 1829, a man applied for a mandamus to compel the parish clerk to give him a certificate of his having joined that parish. He wished to file the certificate with the clerk of the religious society to which he had previously belonged, as evidence of his having left that society. The court refused the writ, remarking that an action was then pending in which the same ques- tions might be tried, and a determination on that summary process might affect the rights of persons who had no op- portunity to be heard. 4 In the same volume is a case de- cided at the next term, which is no doubt the case referred 1 Runkel v. Winemiller, 4 Harris 3 Union Church v. Sanders, 1 & McH. 429. Houst. 100. 2 Brosius v. Renter, 1 Harr. & * Oakes v. Hill, 8 Pick. 47. Johns. 551. § 22.] WEIT CONFINED TO PUBLIC EIGHTS. 19 to. From that decision it appears that parishes were then connected with the state, taxes were collected to pay the minister, and parochial business could be conducted by- town officers and in the usual course of municipal proceed- ings. 1 Of course then the parish clerk was a public officer. In California, when the board of education has elected a person to be a teacher in the public schools, he can only be removed for certain causes specified in the law. The board wrongfully removed a teacher to a school of a different grade from the one in which he was teaching. He was allowed a mandamus to restore him to his original position. This was on account of the provisions of the California law, which allows a mandamus to issue to compel the admission of a party to the use and enjoyments of a right to which he is entitled and from which he is unlawfully precluded. 2 The statute of Nevada corresponds with that of California. There a mandamus may issue to compel the admission of a party to the use and enjoyment of a right from which he is unlawfully precluded by an inferior tribunal, corporation, board, or person. A mandamus was brought to compel the respondent to deliver to the relator all the books and papers belonging to the office of the superintendent of a foreign mining company, and to admit him to the enjoy- ment of all the rights of that position. The writ was issued, though the court stated that the officers of a foreign corpo- ration were not recognized, and admitted that it had no jurisdiction over the corporation. The decision was based on the propositions that its agent had a right to represent a foreign corporation, and that under the statute a manda- mus would lie to restore a party to the enjoyment of a right. 3 A careful examination of the American cases has failed to show to the writer any other cases, where the writ has been issued to others than public officers and corporations, which are considered to fall within the rule, except under the cir- i Ashby v. "Wellington, 8 Pick. 524. 8 State v. McCullough, 3 Nev. 202. 2 Kennedy v. Bd. Education, 82 Cal. 483. 20 WBIT CONFINED TO PUBLIC EIGHTS. [§ 23. cumstances mentioned in the next five sections. It is true that many decisions quote with approval Lord Mansfield's ruling, that those unlawfully dispossessed of a function should be restored by mandamus, and many cases are re- ferred to as sustaining that ruling; yet an examination will show that the cases themselves have all related to corpora- tions. From the numerous decisions requiring the writ to be confined to public officers and public affairs, it is not probable that the writ would now be issued, except in Maryland, Delaware, Nevada and California, merely to re- store a person to a function or right, though pecuniary emoluments were attached thereto. Lord Mansfield said that the public interest would not be scrupulously weighed, and a number of cases are mentioned in the text-books as being illustrations of that statement. These cases, however, seem to refer to corporate rights, and even in such cases it was necessary to show some public interest, because at one time the English courts refused to issue the writ in the case of trading corporations, unless there was some public in- terest involved in the case. 1 This position, however, they have long since abandoned. 2 In the case of private charities, the writ has on some occasions been denied, and on other occasions granted. 3 § 23. The writ will not run against a private person or one not acting officially. — 3. The rule is, that this writ will not run against a private individual, 4 nor will it lie against an officer for acts done in an unofficial character. A register of deeds received a deed as an escrow, which one of the parties forbade him to deliver or record. A manda- mus requested by the other party to make him record trie deed was refused. 5 Where by consent a case was tried be- i R. v. Bank of England, 2 B. & 3 Ex parte Trustees Rugby Char- Aid. 620. ity, 9 D. & R. 214 ; R. v. Abrahams, 2 Dacosta v. Russia Co., 2 Str. 783 ; 4 Q. B. 157. Rex v. Turkey Co., 2 Burr. 999 ; 4 Hussey v. Hamilton, 5 Kans. 462. King v. St. Katherines D. Co., 4 B. 5p e0 ple v. Curtis, 41 Mich. 723. & Ad. 360. § 24.] WEIT CONFINED TO PUBLIC EIGHTS. 21 fore a lawyer, a private individual, sitting as judge, a man- damus to make him sign a bill of exceptions was refused. 1 A county treasurer in collecting delinquent taxes was al- lowed a per centum as his fee, which was not charged to him. A former treasurer was refused a mandamus to com- pel the county auditor to draw a warrant on his successor in office for fees collected by the latter which belonged to him. 2 The writ will not go to a bailee holding funds as a private individual to execute the terms of the bailment. 3 The speaker of an illegal and unconstitutional body, claiming to be the house of representatives, is a mere private citizen, against whom a mandamus cannot issue. 4 When a bill of exceptions is signed by a judge, his power over it is gone, and any alterations made in it afterwards by him are made by a private individual, and a mandamus will not issue to him to restore it to its former condition. 5 An officer can- not be compelled to pay a sum of money unless the money is in his official custody, legally subject to the payment of the demand made, when steps are initiated to enforce the demand by a mandamus* A party elected to an office is entitled to the papers, books, records and insignia of his office. He may obtain them by mandamus from his pred- ecessor, who refuses to surrender them, 7 who must thus be considered to be acting as a de facto officer, since the decisions hold that in such a case the writ will not lie against a private individual. 8 § 24. Subject continued. — This writ issues if an ex- officer, whether of a public or private corporation, corn- pan}^, church or society, or executor or widow thereof, on demand refuses to deliver to his successor the books, etc., i State v. Larrabee, 3 Wis. 783. Slack, 7 Cush. 226 ; Frisbie v. Fogg, 2 Thomas v. Hamilton Co. (Au- 78 Ind. 269 ; People v. Head, 25 111. ditor), 6 Ohio St. 113. 325 ; Kimball v. Lamprey, 19 N. K 3 State v. Bridgman, 8 Kans. 458. 215 ; Warner v. Myers, 4 Oreg. 72. * State v. Hayne, 8 Rich. (N. S.) 367. 8 Q. v. Hopkins, 1 Ad. & E. (N. S.) 5 State v. Powers, 14 Ga. 388. 161. Contra, St. Luke's Church v. 6 People v. Reis, 76 Cal. 269. Slack, 7 Cush. 226. 7 Prop'rs St. Luke's Church v. 22 WRIT CONFINED TO PUBLIC EIGHTS. [§ 24. pertaining to his office, but not against a private person who detains them. The writ does not lie to one not hold- ing an official or quasi-official station. 1 The writ also lies against one holding the insignia of an office, wrongfully claiming to be the incumbent thereof. 2 An officer surren- dered the books of his office (county judgeship) to his succes- sor, but subsequently surreptitiously carried them off. A mandamus against him was refused, because it was not al- leged that he took the books under any pretense of a color of right to them or to their possession, nor that he was exer- cising, or pretending to exercise, the duties of the office. 3 It would seem that the necessities of the public service and the uncertainty of procuring the public records by other suits should lead the courts to allow the issuance of the writ in all such cases. The writ has been issued to an officer to deliver up state property which he held without right or authority of law. 4 A board of freeholders were allowed to recover by this writ a public jail from one in whose charge they had placed it under a contract with him. 5 In the earlier reports it appears that the writ was allowed to obtain the books of a borough from an executor who claimed that his decedent had expended money for the borough and held the books as security therefor. 6 Where, however, a private party assumes certain functions whence by law certain duties arise, he will be compelled by mandamus to fulfill those duties. A witness to a sub- mission to arbitration was obliged to make affidavit thereof, in order to make it a rule of court according to statute. 7 Where the parties contesting an election chose two persons to take the testimony together, who, after accepting the position, decided that the notice of contest was insufficient and declined to proceed, the court compelled them by this writ to proceed. 8 Where two persons accepted the posi- i State v. Trent, 58 Mo. 571. 6 King v. Ingram, 1 W. Bl. 50. 2 Walter v. Belding, 24 Vt 658. 7 Clark v. Elwick, 1 Stra. 1; 3 Hussey v. Hamilton, 5 Kans. 462. Barnes, 58. * State v. Bacon, 6 Neb. 286. 8 state v. Peniston, 11 Neb. 100. * State v. Layton, 28 N. J. L. 244 § 25.] WRIT CONFINED TO PUBLIC RIGHTS. 23 tions of arbitrators under a canal act, but could not agree upon the selection of an umpire, who was provided for by said act in case of their disagreement, a mandamus was issued to compel them to select an umpire. The court said they must agree. 1 The legislature incorporated a bank and by the same act appointed a committee to receive sub- scriptions thereto. It was held that the duties assumed by the committee were of a public character, and the public had an interest in their faithful discharge. If it should ap- pear that, after accepting the appointment and assuming to act, anv of the members of the committee should refuse to act, and thereby the act of incorporation might fail, a mandamus would lie to make them perform those duties, 2 or it would lie if they should wrongfully refuse to allow a party to subscribe. 3 § 25. Mandamus to parties assuming public duties.— The laws of the state have recently undertaken to super- vise and control certain private occupations, which from their nature or surroundings have become to some extent monopolies, or have become important agencies to large numbers of people in the community in the transaction of their business. The facilities for the rapid transaction of business have of late years greatly increased, while the ao-encies established for the instantaneous communication of the transactions of all the world have made it essential for all traders to have equal facilities for receiving the news and for shipping or receiving goods. If common carriers, either of news or of goods, could refuse to serve all parties alike, they could ruin the business of any trader, or could estab- lish monopolies. A suit for damages would not re-estab- lish a ruined trade, the customers whereof had been turned to rival operators. So American courts have taken such occupations under their control, and, regarding them as public agencies, have enforced the common law or statutory iKing v. Goodrich, 3 Smith, 388. 3 Napier v. Poe, 12 Ga. 170. 2 White Run Bank, In re, 23 Vt 478. 2-i WKIT CONFINED TO PUBLIC RIGHTS. [§ 25. law against them, and have not hesitated to grant the writ of mandamus against any party who, having assumed pub- lic duties, endeavored to be partial in the performance of such duties and attempted to give one party an advantage over another. 1 The courts have decided, that property be- comes clothed with a public interest when used in a man- ner to make it of public consequence and to affect the com- munity at large. "When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must sub- mit to be controlled by the public for the common good to the extent of the interest he has thus created. He may with- draw his grant by discontinuing the use ; but as long as he maintains the use he must submit to the control. 2 This is a departure from the old principle, and of course was very much assailed, 3 but is now too firmly established to be over- thrown. Most of the cases which have arisen under this construction of law have been cases of injunction or prose- cutions for violations of law, but there have been a number of cases wherein the writ of mandamus has been applied for and granted. The assistance of the courts has been fre- quently extended in the case of telephones, though they are a new invention, for the courts apply the same rule to all agencies which now exist or which may hereafter arise for carrying on commerce, which agencies become public by the nature of their functions. 4 The relations which the telephone has assumed toward the public make it a com- mon carrier of news, a common carrier in the sense in which the telegraph is a common carrier, and impose on it certain well-defined obligations of a public character. All its in- struments and property, used in its business, are legally de- 1 Nash v. Page, 80 Ky. 539 ; Peo- Illinois, supra; People v. Budd, 117 pie v. King, 110 N. Y. 418 ; People N. Y. 1, and People v. Walsh, 117 v. Budd, 117 N. Y. 1 ; Chicago, etc. N. Y. 621. R R v. Iowa, 94 U. S. 155 ; Peik v. 4 Pensacola Tel. Co. v. Western Chicago, etc. R R, 94 U. S. 164. U. T. Co., 96 U. S. 1 ; Telegraph Co. 2 Mann v. Illinois, 94 U. S. 113. v. Texas, 105 U. S. 460. 3 Dissenting opinions in Mann v. § 25.] WRIT CONFUSED TO PUBLIC EIGHTS. 25 voted to a public use. As such common carrier it can show no preference, and must furnish the same conveniences to all persons who offer to pay its charges. In case of failure so to do, a mandamus will issue to compel it to do its duty, 1 even though contrary to the provisions of a contract made with the owners of the telephone patent. A com- mon carrier cannot make a contract relieving himself from the duty imposed by law of serving all alike. 2 These de- cisions were in no sense based on the fact that the re- spondents were corporations, but on the nature of the du- ties assumed, and in a similar case the writ would run to an individual. 3 A board of trade had so conducted its business for a series of vears as to create a standard market for agricultural products, and, acting in concert and in combination with the telegraph companies, had built up a great system for the instantaneous and continuous indica- tion of the market and its fluctuations, until the public and all dealers in such products had conformed their business to the system and could no longer carry on the business if they were denied the use of such reports. The court held that the board of trade was not compelled to continue the use of the system, but if it did so, it must extend to all ap- plying therefor the benefits thereof upon the same terms. 4 On account of such devotion of their property to public uses, a mandamus was issued to compel the owners of steamboats and other water-craft to return to certain state officers the number of passengers and tons of freight car- ried by them in such craft through certain locks on the water-lines of transportation. 5 i Hockett v. State, 105 Ind. 250 ; 8 Chesapeake, etc. Co. v. Bait etc. Chesapeake, etc. Co. v. Bait etc. Co.. 66 Md. 399 ; Central U. T. Co. Co., 66 Md. 399 ; State v. Nebraska v. State, 118 Ind. 194 ; Central U. T. T. Co., 17 Neb. 126 ; Bell T. Co. v. Co. v. State, 123 Ind. 113. Com., Sup. Ct Pa., April 19, 1886. 4 Stock Exchange v. Board of 2 State v. Bell Telephone Co., 36 Trade, 127 111. 153. Ohio St 296 ; State v. Bell T. Co., 5 Canal Com'rs (Board) v. Willa- 23 Fed. R. 539 ; State v. Delaware, mette, etc Co., 6 Oreg. 219. etc. Co., 47 Fed. R. 633. 26 WEIT CONFINED TO PUBLIC EIGHTS. [§§ 26, 27. § 26. When is property devoted to public uses. — The theory adopted in Munn v. Illinois, supra, is that when persons assume in their business certain relations to- ward the public, such business may be regulated by law. "Who is to decide when such relations have been assumed? The court mentioned a number of instances of the legal regulation of various kinds of business, as : ferries, wharves, mills, bridges, roads, tavern-keepers, common carriers, hack- men and bakers. The inference from the decision is, that the regulation by the legislature establishes the fact that such business has become of a public nature. Since this writ is now established to be a proper remedy to enforce obedience to law in the case of such duties, we may expect to see it more extensively used therefor in the future. We see no objection to such a liberal use of the writ. A speedy remedy is never objectionable, provided no rights are thereby sacrificed. In England, at present, the writ may be prayed for at the institution of any civil suit, except ejectment and replevin, and if a proper case is established it is granted. 1 However, the legislature has the control of the matter in its own hands. It can determine what occu- pations are of a public nature and in what cases this writ may issue. § 27. Mandamus lies to parties holding public fran- chises. — When there is a grant and acceptance of a public franchise which involves the performance of a certain serv- ice, the person or corporation accepting such franchise can by mandamus be compelled to perform such service. 2 In such cases there can be no refusal to perform the duties thus devolved upon the grantee without a surrender of the franchise. 8 Among such franchises are included : the right to condemn private property under the power of eminent domain ; 4 the right to appropriate water for sale or distribu- i Act of 17 and 18 Vict, ch. 125, 3 Olmsted v. Proprietors of Mor- § 68. ris Aqueduct, 47 N. J. L. 311. 2 Haugen v. Albina & Co. (Oreg., * Price v. Riverside, etc. Co., 56 Dec 14, 1891), 28 Pac. Rep. 244 Cal 431. § 2fc&.] WEIT CONFINED TO PUBLIC EIGHTS. 27 tion, which, the law declares to be a public use, and to col- lect rates or compensation for the use thereof; 1 the right to dig up the streets and other public ways of a city to place therein pipes and mains for the distribution of illumi- nating gas for public and private use, 2 and the grant of a monopoly, 3 as the exclusive right to manufacture and sell gas in a city. 4 Such power — in its nature a public power — and the public duty are correlative. 5 It is because of such obligation to render service to the public that the legisla- ture has power to make the grant." Such writ, however, can only issue to enforce a duty. 7 Where the privileges granted are permissive, and not obligatory, the grantee cannot be compelled to exercise them ; but if it has exer- cised them, it will be compelled to perform the duties ac- cruing therefrom. 8 It is not necessary that there should be any express statutory words imposing this duty, but it ex- ists whenever the public use appears. 9 § 27a. Mandamus rims to railroad corporations.— This writ, of course, runs against railroad corporations, because they are corporations and because they have a quad-public character, having been endowed with the right of eminent domain in condemning land for their uses. The English courts have refused to issue this writ against them to com- pel them to extend equal facilities to all who pay their charges, asserting that they were allowed, but not required, to carry freight and charge therefor, and also considering that there was adequate compensation by an action for dam- i McCrary v. Beaudry, 67 Cal. 120. 6 Gordon v. Winchester, 12 Bush, 2 New Orleans G. Co. v. Louisiana 110 ; Louisville G. Co. v. Citizens' L. Co., 115 U. S. 650. G. Co., 115 U. S. 683; Lowell v. 3 Williams v. Mutual Gas Co., 52 Boston, 111 Mass. 454. Mich. 499. 7 People v. New York, etc. R. R, 4 Shepard v. Milwaukee G. L Co., 104 N. Y. 58. 6 Wis. 539 ; Gas Light Co. v. Col- » Farmers', etc. Co. v. Henniug liday, 25 Md. 1. (U. S. C. C. Kans. 1878), 17 Am. Law 6 Price v. Riverside, etc. Co., 56 Reg. (N. S.) 266. Cal. 431 ; Lumbard v. Stearns, 4 9 Price v. Riverside, etc. Co., 56 Cush. 60. Cal. 431. 2S WRIT CONFINED TO PUBLIC EIGHTS. [§ 28. ages. 1 In America such action is not considered an ade- quate remedy. Mandamus lies to make a railroad treat all shippers alike; 2 and where it is in the habit of delivering grain at some elevators, to make it deliver it to all eleva- tors ; 3 and to make it comply with the provisions of its charter, as to finish its track to the terminus specified in its charter and run cars thereon, 4 though it has contracted with another common carrier not to do so. 5 One court held that a railroad could not, at the relation of a private party, be compelled by mandamus to transport his goods, an ac- tion for damages being a sufficient remedy ; 6 but that the state itself could obtain such a writ to compel it to do its duty as a common carrier of freight and passengers. 7 § 28. The writ runs against any corporation. — This writ issues in a proper case against any corporation. This may be considered as an exception to the rule that it only issues against public officers. However, such jurisdiction is well established, and the reason assigned therefor is that the courts have such supervisory jurisdiction over corporations to see that they act agreeably to the end of their institu- tion, and that the king's charters are properly observed. 8 i Ex parte Robins, 3 Jur. 103. 5 state v. Hartford, etc. R. R, 29 2 State v. Delaware, etc, R R, 48 Conn. 538. N. J. L. 55. 6 people v. New York, etc. R R, 3 Chicago, etc. R R v. People, 56 22 Hun, 533. 111. 365. 7 People v. New York, etc. R R, < People v. Rome, etc. R R, 103 28 Hun, 543. N. Y. 95 ; People v. Albany, etc, 8 R v. Askew, 4 Burr. 2186 ; post, R R, 24 N. Y. 261. § 157. CHAPTER 5. GENERAL PRINCIPLES GOVERNING THE ISSUE OF THE WRIT OF MANDAMUS. § 29. General nature of acts to which the writ applies. 30. Ministerial acts. 81. Distinction between ministerial and judicial acts illustrated. 32. Mandamus to take action in judicial or discretionary matters. 33. Mandamus not lie when performance is discretionary. 34. Permissive statutes may be mandatory. 35. Though the act calls for discretion, no excuse for non-action. 36. Mandamus to take jurisdiction when wrongfully declined. 37. Mandamus not lie when officer has acted in a discretionary mat- ter. 38. Exceptions as to interfering with acts involving discretion. 39. Illustrations of such interference. 40. Mandamus when fraud or prejudice has influenced action. 41. The abuse of discretion must be flagrant 42. The writ of mandamus will not lie to undo what has been done. 43. Mandamus and injunction contrasted. 44. Are preliminary questions judicial or ministerial? 45. English rule as to preliminary questions. 46. American rule as to preliminary questions. 47. Subject continued. 48. Summary of decisions on the subject 49. Mandamus protects only substantial interests. 50. The writ creates no new duty. 51. Writ denied when there are other remedies. 52. Other remedy must be speedy. 53. Other remedy must be adequate. 54. Other remedy must be specific. 55. Other remedy must be a legal remedy. 56. Relator must show a clear legal right 57. Obligation on respondent to do the act must be absolute, 58. Mandamus not lie, if act only to be done on approval of another. 59. There must be an officer to do the act desired. 60. Corollaries from preceding sections. 61. Mandamus is entirely a civil remedy. 30 GENERAL PRINCIPLES. [§§ 29, 30. § 29. General nature of acts to which the writ applies. This writ lies to compel the performance of any act purely ministerial, and to compel an officer, whose duty it is to act in a matter which requires judgment and discretion, to hear and pass on the matter. In the former case the court will specifically order the act to be done, 1 but in the latter case the decision is left to the officer or tribunal charged with the consideration of the subject. 2 It is the character of the duty, but not that of the body or officers, which determines how far it may be enforced by mandamus} % 30. Ministerial acts. — A ministerial act is one which a public officer or agent is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impro- priety of the act to be performed. 4 But when the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed purely ministerial. 5 As to all acts calling for the exercise of judgment or discretion on the part of the officer or body at whose hands performance is sought, a mandamus will not lie. 6 If, however, the facts are admitted which alone i People v. McCormick, 106 111. Ex parte Hays, 26 Ark. 510 ; R. v. 184; Attorney-General v. Boston, Middlesex (Justice), 4 Barn. & Aid. 123 Mass. 460 ; Carpenter v. Bristol 300. (Co. Cora'rs), 21 Pick. 258; State v. SMarbury v. Madison, 1 Cranch, Williams, 69 Ala. 311; Carrick v. 137; People v. Dental Examiners, Lamar, 116 U. S. 423; Mooney v. 110 111. 180; Ex parte Harris, 52 Edwards, 51 N. J. L. 479. Ala. 87; People v. Troy (Council), 2 People v. Troy (Common Coun- 78 N. Y. 33. cil), 78 N. Y. 33 ; Williams v. County 4 Insurance Company v. Wilder, Commissioners, 35 Me. 345 ; Secre- 40 Kans. 561 ; Gray v. State, 72 Ind. tary v. McGarrahan, 9 Wall. 298 ; 567 ; United States v. Whitney, 16 Ex parte Many, 14 How. 24; State Dist. Col. 370. Board of Education v. West Point, 5 Bledsoe v. International R R, 50 Miss. 638 ; People v. Dental Ex- 40 Tex. 537 ; Arberry v. Beavers, 6 aminers, 110 111. 180 ; Com. v. Boone Tex. 457 ; Scripture v. Burns, 59 County Court, 82 Ky. 632 ; State v. Iowa, 70 ; Newport (City) v. Berry, Board of Liquidators, 23 La. An. 80 Ky. 354 ; Hoole v. Kinkead, 16 388 ; R v. North Riding, 2 B. & C. Nev. 217 ; Eve v. Simon, 78 Ga. 120. 286 ; Ewing v. Cohen, 63 Tex. 482 ; 6 Devin v. Belt, 70 Md. 352 ; State §31.] GENERAL PRINCIPLES. 31 allow discretion, a mandamus may issue to compel the per- formance of the act. 1 § 31. Distinction between ministerial and judicial acts illustrated. — The courts, and not the officers charged with the duties, are the final arbiters as to whether such duties are ministerial or judicial, 2 and in their determinations great differences will be found. 3 All acts or duties, depend- ing upon a decision of a question of law or the ascertain- ment of matters of fact by the officer or tribunal charged with the duty, are considered to be judicial. 4 The federal courts place very strict limitations upon the use of the writ of mandamus. They hold that it was never intended that the writ should be used to interfere with the executive officers of the government in the exercise of their ordinary official duties, nor will it lie when the evidence in the case exists in parol, involving the necessity of taking proofs, nor when controverted matters must be judicially heard and decided by the officer to whom the writ is required to be addressed. 5 But when by special statute or otherwise a mere ministerial duty is imposed upon them, and they refuse to perform it, mandamus lies to compel them to per- form such duty. 6 When a subordinate officer is overruled by his superior, having appellate jurisdiction over him, his duty to obey the decision of such superior is a ministerial duty, which he can be compelled by mandamus to perform. 7 v. Martin County (Com'rs), 125 Ind. (Judge), 29 Mich. 487 ; State v. Ver- 247 ; Sansom v. Mercer, 68 Tex. 488 ; ner, 30 S. C. 277. Contra as to ques- In re Woffenden, 1 Ariz. 237. tions of law, Thomas v. Armstrong, i Henry v. Taylor, 57 Iowa. 72 ; 7 Cal. 286. Briggs v. Hopkins, 16 R. I. 83. 5 Secretary v. McGarrahan, 9 2 State v. Watertown (Council), 9 "Wall. 298 ; United States v. Com- Wis. 254 missioner, 5 Wall. 563 ; United 3 State v. County Court, 33 W. Va. States v. Raum, 135 U. S. 200 ; Car- 589. rick v. Lamar, 116 U. S. 423; Ree- * Mooney v. Edwards, 51 N. J. L. side v. Walker, 11 How. 272 ; United 479 ; People v. Troy (Com. Council), States v. Windom, 137 U S. 636. 78 N. Y. 33 ; Hoole v. Kinkaid, 16 6 United States v. Raum, 135 U. S. Nev. 217; Sansom v. Mercer, 68 200 ; Carrick v. Lamar. 116 U. S. 423. Tex. 488 ; State v. Wright, 4 Nev. "' United States v. Raum, 135 U. S. 119; People v. Allegan Circuit 200. 32 GENERAL PRINCIPLES. [§ 31. It is no objection to the issuance 'of this writ that it requires a multiplicity of acts, requiring an exercise of judgment and discretion as to details. It has been issued to compel a railroad to grade its tracks so as to make the crossings practically convenient and useful, to construct its road over a stream so as not to interfere with navigation, to replace a part of its track which it has wrongfully taken up, to run daily trains, etc. 1 Where, however, the duty required consists of a number of actions, and at the same time it is vague in many particulars, the courts will decline to enforce it by this writ. An act of the legislature required the super- visors of a county to let the construction of the public buildings to the lowest bidder, to erect those buildings in a certain place, to have them completed in a certain time, and to levy a tax to defray the expenses thereby incurred. The court refused to enforce this duty by the writ of man- damus because the law was very vague in many of its pro- visions. 2 Its object, though, is to compel the doing of particular specified acts, and not to constrain a person to regulate his whole course of conduct according to some general principle. 3 In order, however, that a decision may be considered to be judicial, it must be upon law or facts legitimately involved in the question before the tribunal; otherwise the decision is reviewable by mandamus* As long as there is any reasonable doubt as to whether or not a matter depends upon the result of an inquiry or investi- gation into the facts, or which involves the hearing and consideration of evidence, which is to control the action of the officer or tribunal, courts will not undertake to review the conclusion or judgment by a mandamus proceeding, after the body or officer has acted. 5 The writ has been re- fused, because the acts involved discretion and judgment, to compel the clerk of the circuit court to approve a bond 'Ohio & M. R. R v. People, 120 i People v. Judge Allegan Circuit, 111. 200. 29 Mich. 487. 2 State v. Washington County 5 State v. Greene County (Board (Sup'rs), 2 Chand. 247. Coin'rs), 119 Ind. 444, 3 State v. Einstein, 46 N. J. L. 479. § 32. j GENERAL PRINCIPLES. 33 for costs in a contest over the election of a judge of pro- bate, 1 to compel the board of commissioners to approve the bond of a justice of the peace, 2 to make a probate court pass on the last will of the deceased before passing on a prior one, 3 to make a board of health issue to a physician a license to practice, 4 to approve a bond for a license to sell whisky, 3 to compel a board of education to approve of a school teacher, 6 to make the secretary of the interior cause certain public lands to be surveyed and sold, 7 and to correct an error in a tax duplicate. 8 An auditor was required to place certain assessments on the tax duplicate for collection, such duty being considered merely ministerial. 9 Before issuing this writ to a ministerial officer the court must ascertain what is his specific duty in the premises. 10 § 32. Mandamus to take action in judicial or discretion- ary matters. — The writ lies to make a body or officer charged with a duty, involving judgment or discretion, take action in the matter. 11 When a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact it cannot be directed to decide in a par- ticular way, however clearly it may be made to appear what that decision ought to be. 12 A court will be ordered to pro- ceed to judgment, but it will not be instructed to render a particular judgment. 13 It is said there is not a case where the king's bench has ordered an inferior court to render a particular judgment. 14 When a decision has been reached in a matter involving discretion, a writ of mandamus will i McDuffie v. Cook, 65 Ala. 430. 9 State v. Stout, 61 Ind. 143. 2 County Commissioners (Board) io State v. Garesche. 65 Mo. 480; t. Crotty, 9 Colo. 318. State v. Williams, 95 Mo. 159. 3 People v. Knickerbocker, 114 n Com. v. Cochran, 6 Binn. 456. 111. 539. 12 People v. Troy (Com. Coun.), 78 « State v. Gregory, 83 Mo. 123. N. Y. 33. 5 Parker v. Portland, 54 Mich. 308. "Police Board v. Grant, 9 Sm. & 6Wintz v. Board of Education, M. 77. 28 W. Va. 227. 14 R. v. Middlesex (Just), 4 B. & ~> Carrick v. Lamar, 116 U. S. 423. Aid. 300. 8 Lynch, Ex parte, 16 S. C. 32. 3 04 GENERAL PRINCIPLES. [§ 32. not lie to review or correct it, no matter how erroneous it may be. 1 The writ lies to make a judge sign a bill of ex- ceptions, but it will not lie to compel him to sign a particu- lar bill. 2 A superintendent of highways, who had discretion in the matter, was not compelled to certify for the benefit of a contractor that certain roads were kept in good repair, though the court found that they were so kept. 3 When the supervisors refuse to allow a claim as a county charge, the writ will go to compel them to pass on it, if it is prop- erly such a charge, but the amount of the allowance will be left to their judgment. 4 When an auditor is vested with discretion in passing on a claim against a county, a man- damus will lie to compel him to consider it, if he refuse to do so. 5 A mandamus will lie to the county commissioners to act in approval or disapproval of the bond of the clerk of the superior court, but not to control their judgment or discretion in the matter. 6 If the visitor of a corporation improperly refuse to hear a case, he will be compelled to pass on it. If he has acted thereon, his judgment is final. 7 The writ was applied for to compel the justices to hear an information. They returned that they had heard it and had dismissed it, because it was not filed in time under the statute. The writ was refused, because the justices had heard and determined the question. 8 The writ was applied for to compel the mayor and comptroller to determine which four papers had the largest daily circulation in order to award to them under the law the corporation advertising. The court stated that it could compel the comptroller to meet with the mayor, but it could not compel the two to agree in their decision, because a question of fact, requiring i Regina v. Bristol (Just.), 28 Eng. ■'• Burnet v. Portage Co. (Aud.), 12 L. & E. 160. Ohio, 54. 2 Thornton v. Hoge, 84 Cal. 231. « Buckman v. Beaufort (Com'rs), 3 Seymour v. Ely, 37 Conn. 103. 80 N. C. 121. 4 Hull v. Oneida Co. (Sup' is), 19 < 6 Bacon's Ab., tit. " Mand." C. 2 ; John. 259; Tilden v. Sacramento post, § 175. Co. (Sup'rs), 41 Cal. 68 ; People v. » Q. v. Mainwaring, Ellis, B. & E. Macomb Co. (Sup'rs), 3 Mich. 475. 474. §§ 33, 34.] GENERAL PRINCIPLES. 35 the consideration of evidence, was involved. 1 Though the courts will not interfere with the executive officers of the government in their ordinary official duties, yet when they refuse to act at all in a case in which the law requires them to do so, they will be compelled to take action by this writ. 2 This writ lies to compel public officers to act with reasonable promptness in performing any duty involving discretion. 3 § 33. Mandamus not lie when — Performance is dis- cretionary. — When the duty is not mandatory, but the officer or body is allowed a discretion as to when the minis- terial act shall be performed, or whether it shall be per- formed at all, such performance will not be enforced by the writ of mandam us.* Where a county board had a discretion as to when and how it should construct bridges, a petition for a mandamus to compel the construction of a bridge was rejected. 5 "Where a court had a discretion as to whether it would hear charges preferred against a justice of the peace, a mandamus to compel such hearing was denied. 6 The writ was refused to compel the attorney-general to file a quo warranto, because the law allowed him a discre- tion in doing so. 7 The board of liquidators were not re- quired by mandamus to sell the state bonds in order to fund the floating state debt, because the law allowed them a discretion as to whether or not and when they should proceed to sell them. 8 § M. Permissive statutes may be mandatory.— It does not follow, however, because the words of a statute are 1 People v. Brennan, 39 Barb. 651. v. Burnsicle, 33 S. C. 270 ; People v. 2 United States v. Raum, 135 U.S. Farquer, Breese. 68; Davisson v. 200. Board of Supervisors, TO Cal. 610; 3 State v. Belmont Co. (Com'rs), Rollersville, etc. Co. v. Sandusky 31 Ohio St. 451. Co., 1 Ohio St. 149. 4 State v. Washington Co. (Board ft St. Clair County v. People, 85 Sup'rs), 2 Chaud. 247 ; State v. Canal, 111 396. etc. R. R, 23 La. An. 333 ; Board of 6 Ex parte Johnson, 3 Cow. 371. Supervisors v. People, 110 111. 511; "People v. Attorney-General, 41 R. v. Fowey (Mayor), 2 B. & C. 591 ; Mich. 728. Ottawa v. People, 48 111. 233 ; State 8 State v. Warmoth, 23 La. An. 76. v. Warmouth, 23 La. An. 76 ; State 38 GENERAL PRINCIPLES. [§ 35. permissive, that the body or officer has a discretion in performing the act. When the words of a statute are per- missive, but public rights or interests are concerned, or the public or third parties have a claim de jure that the power shall be exercised, such words will be construed to be obligatory. 1 § 35. Though the act calls for discretion, no excuse for non-action. — The fact that the act to be done calls for the exercise of discretion will not be allowed to be an ex- cuse for non-action. The supervisors of a county were by an act of the legislature required to issue bonds for the pur- pose of improving the roads of the county, which bonds, after advertisement thereof, were to be sold to the highest bidder, but the supervisors had authority to reject all bids. The court declared the law to be mandatory, and that the power to reject bids must be used to effectuate, and not to defeat, legislation. The supervisors were ordered to sell the bonds to the highest bidders. 2 Two arbitrators ap- pointed under a canal act could not agree on an umpire who was provided for under the act. The court said they must agree, and issued a mandamus to that effect. 3 A peremptory writ was issued to the common councils of a city to levy a tax to pay certain city bonds. Upon a pro- ceeding for contempt of court, it was considered that the members had not discharged their duty by voting for a proper ordinance. Each member was bound to see that a proper ordinance was passed and recorded, so as to be a law. The differences between the councils could be har- monized as to amount, etc. Each member was bound to be i Supervisors v. United States, 4 20 Md. 449 ; People v. Buffalo Co. Wall. 435; Brokaw v. Commis- (Com'rs), 4 Neb. 150; Tarver v. sioners of Highways, 130 111. 482; Tallapoosa (Com'rs Court), 17 Ala. Gray v. State, 72 Ind. 567 ; Worces- 527 ; People v. Otsego Co. (Sup'rs), ter v. Schlesinger, 16 Gray, 166 ; 51 N. Y. 401 ; State v. Camden. 39 Napa V. R. R. v. Napa Co. (Sup'rs), N. J. L. 620 ; People v. Blooming- 30 CaL 435 ; Malcom v. Rogers, 5 ton (Mayor), 63 111. 207. Cow. 188 ; Whettington, Ex parte, 2 People v. San Luis Obispo Co. 34 Ark. 394 ; Public School Com- (Sup'rs), 50 Cal. 561. missioners v. Allegany Co. (Com'rs), 3 King v. Goodrich, 3 Smith, 388. §§ 3G-38.] GENEKAL PEINCIPLES. 37 diligent in attending to the passage of such an ordinance. He could not say that his duty was done because the ma- jority of his council or the other branch of the councils had fixed a different rate of taxation from what he thought necessary. 1 § 36. Mandamus to take jurisdiction when wrongfully declined. — When the tribunal or officer whose duty it is to take jurisdiction of a matter, believing erroneously that it has no jurisdiction, declines to consider the matter, a mandamus will issue to compel such a hearing, 2 viz., when a court refuses to assume jurisdiction and hear a cause, 3 or the county commissioners refuse to take cognizance of a claim against the county. 4 § 37. Mandamus not lie when officer has acted in dis- cretionary matter.— When an officer, body or tribunal has acted in a matter which calls for the exercise of judgment or discretion, the writ of mandamus does not lie to review or reverse such action. 5 § 38. Exceptions as to interfering with acts involving discretion.— The proposition just stated must, however, be received with some qualification or explanation. The courts have sometimes interfered in such cases, and have by the writ of mandamus reviewed the judicial actions of officers or inferior tribunals. In some cases it was held that the admitted facts showed that the action was taken under a 1 Com. v. Taylor, 36 Pa. St 2G3. ford's Case, 1 Mod. 82 ; King v. Ely 2 Reg. v. Goodrich, 19 L. J. Q. B. (Bishop), 5 Term R 475 ; Weeden 413; S. C. reported as Reg. v. Lei- v. Richmond (Council), 9 R. I. 128; cester, 15 Q. B. 671. Collarn's Petition, 134 Pa. St 551 ; 3 People v. Swift, 59 Mich. 529; Burnet v. Portage Co. (Aud.), 12 State v. Laughlin, 75 Mo. 358 ; post, Ohio St 54 ; Com. v. Cockran, 6 g OQ3. Binn. 456 ; Tilden v. Sacramento Co. b 'State v. Hamilton Co. (B'd (Sup'rs), 41 Cal. 68 ; State v. Health Com'rs), 26 Ohio St 364. Board (State), 103 Mo. 22 ; Scripture a Hoole v. Kinkead, 16 Nev. 217 ; v. Burns, 59 Iowa, 70 ; Insur. Co. v. King v. Cambridgeshire (Just), 1 Wilder. 40 Kans. 561 ; State v. Carey D. & R. 325; People v. Albany (N. Dak., June 16, 1891), 49 North W. (Sup'rs), 12 Johns. 414 ; Younger v. Rep. 164 ; Hayes, Ex parte (Ala., Board Sup'rs, 68 Cal. 241 ; State v. April 9, 1891), 9 South. R 156. Lafayette Co. Ct, 41 Mo. 221 ; Apple- q 8 GENERAL PRINCIPLES. [§ 39. misapprehension of the law, so that the officer could not be considered to have exercised his discretion in the mat- ter; in other cases the conclusions reached were due to matters of fact not involved in the discretion given, or to mistakes in law not germane thereto; in other cases the courts claimed a great latitude in interfering with inferior courts by reason of their supervisory power over them. §39. Illustrations of such interference. — When a de- cision itself showed that the quarter sessions had not ex- ercised their discretion, the writ issued to compel them to do so. 1 A vestry had a discretion as to the amount of pen- sion they should allow a retiring officer, but they thought they had no discretion as to the amount under a prior de- cision of the court, and accordingly refused any pension, though they had determined to allow a smaller pension. From the report these facts seem to have been admitted in the argument. It was held, that they could not be con- sidered to have exercised their discretion in a proper man- ner, and the writ of mandamus was issued to them to con- sider and determine the application. 2 When the quarter sessions dismissed an appeal for want of notice thereof, which no rule required, the writ issued. 3 The English courts have also corrected errors of judgment in the exercise of such discretion, which clearly appeared on the record. A litigant served a notice of appeal one day later than the time fixed by rule. He mistook the rule, believing that either the day of service or the day of hearing could be in- cluded in the computation of time, whereas the rule ex- cluded both days. The justices refused to hear the appeal. The court of kings bench considered that under its vis- itorial jurisdiction the court could ascertain whether the justices had exercised their discretion property. The court decided that justice would be better subserved by a hear- iR. v. Adamson, 1 Q. B. D. 201. 3R. v. West Riding of Yorkshire, 2 Q. v. St Pancras, 24 Q. B. D. 5 B. & Ad. 667. 37 L § 39.] GENERAL PRINCIPLES. 39 ing, and ordered the justices to entertain the appeal. 1 In another case it was admitted that the justices had a dis- cretion in deciding what was a reasonable time for giving notice of appeal. They had adopted a new rule on the sub- ject, of which the appellant's attorney had no notice. He gave his notice according to the former practice. The jus- tices refused to hear the appeal. The court considered that the justices had not exercised their discretion properly, and issued its writ to compel them to consider the appeal. 2 Lord Tenterden said : " It is true in some instances, where the sessions have established a rule, which in its operation has been found manifestly inconvenient for the purposes of justice, the court has interfered to control their discretion, but it is going a great length." 3 Under the statute the justices had a right to fix the wages of millers. The justices had decided against the petition of the millers to have their wages fixed. They admitted they did so because they be- lieved the law did not apply to millers. They were ordered to hear the request, and then to determine whether in their discretion they thought proper to fix a rate of wages. 4 A court, having a supervisory superintending control over other courts by mandamus, claimed that such control was as broad as the exigency of the case. It held, that if a lower co rt had plainly erred on a point of practice, either by misapprehending its own rules or a plain rule of law, and in consequence had dismissed an appeal, a writ of man- damus would lie to correct and remedy the erroneous and arbitrary exercise of its discretion. 5 Where a board of pub- lic improvements refused to issue a license because the ap- plicant therefor would not comply with certain conditions, which they had imposed without authority of law, a man- damus was issued to compel the granting of the license. 6 iKins; v. Lancashire (Just), 7 B. 4 Kiug v. Kent (Just), 14 East. & C. 691. 395. 2 King v. Wiltshire (Just), 10 & State v. Philips, 97 Mo. 331. East, 404 6 State v. Flad, 23 Mo. Ap. 185. 3 Becke, Ex parte, 3 B. & Ad. 704. 40 GENERAL PRINCIPLES. [§ 39. A party was entitled by law to a renewal of his ferry license, if be bad properly conducted tbe business during tbe prior year. Tbe county commissioners found no fault with bis conduct, but refused to renew his license because his ferry franchise had been sold under a judgment against him, which sale they believed conveyed his title (whereas his franchise was not legally vendible under an execution), and they issued a license to the purchaser. The county commissioners were required by mandamus to renew the license. 1 Where an officer was entitled to judge of the sufficiency of a bond, but stated in his return that he re- fused to issue the license because he thought the law allowed him to decide who were proper parties to receive licenses, the court, finding that the officer was not allowed discre- tion in that matter, ordered him to issue the license. 2 In passing on a bond offered as security for an attachment the clerk was considered to be acting in a ^a^'-judicial ca- pacity, and if he should refuse to accept such a bond because he considered the sureties to be insufficient, or for no as- signed reason, a mandamus would not lie to him to accept the bond ; but if he based his refusal on a reason insufficient in law, a mandamus would lie. 3 This last decision has been assailed on the ground that it is immaterial that the discre- tion granted has been guided by a mistaken reason. 4 " The prohibition to interfere does not lose its force because a wrong reason has led to a w T rong conclusion. The books abound in cases where the courts refuse mandamus not- withstanding the mistake or error of the officer whose dis- cretion is sought to be controlled, and it would be an anomaly to hold that refusal is proper when a wrong conclusion is reached without giving the reason for it, but not proper if the reason be given and it is found not a good i Thomas v. Armstrong, 7 Cal. * State v. Barnes, 25 Fla. 293; 286. State v. Joint School District, 65 2 People v. Perry, 13 Barb. 206. Wis. 631 ; Ramagnano v. Crook, 85 3 Mobile, etc. Co. v. Cleveland, 76 Ala. 226. Ala 321. § 40.] GENERAL PRINCIPLES. 41 one." The courts " only check the exercise of discretion when assumed in regard to matters not properly within it, or when mistake is made in law not germane to the discre- tion." The case from which the above citations are taken was also concerning the rejection of a bond, and the court considered it immaterial whether the respondent's objec- tions to the legality of the bond were correct, since his mistake, if any, could not be corrected by a mandamus. 1 In one case the court said that though a county board has a discretion as to when and how it shall repair the roads, yet if it should wholly neglect to repair the roads, it could be compelled to proceed to repair, but not in a specific manner. 2 § 40. Mandamus when fraud or prejudice has influ- enced discretionary action.— Again it may happen, that the person or tribunal charged with discretion or with a judicial decision of the matter has been influenced by fraud, passion, adverse interest or prejudice in its action. In such cases justice requires that there should be some redress. Accordingly, when such parties have acted in bad faith or corruptly in reaching their decisions, the courts hold that their conclusions may be reviewed by the writ of mandamus? But the question remains, how shall it be determined that there has been an abuse of discretion. The rulings of the courts are not in harmony on this proposition. If the tri- bunal or officer has a discretion to find one way or the other, to do the act or not to do it, the mere fact that it has de- cided one way rather than the other cannot warrant the con- clusion that it has acted in bad faith or corruptly. The courts have said that where there is a right of approving a fit per- i State v. Barnes, 25 Fla. 298, ley, Ex parte, 7 Wall. 364 ; Virginia where manydecisions are reviewed ; v. Rives, 100 U. S. 313; State v. People v. Allegan Circuit Judge, Cramer, 96 Mo. 75; People v. 29 Mich. 487. Turner, 1 Cat 143 ; Brokaw v. High- 2 St. Clair County v. People, 85 way Coni'rs, 130 111. 482; Arberry 111. 396. v. Beavers, 6 Tex. 457 ; Louisville » Newport (City) v. Berry. 80 Ky. (City) v. Kean, 18 B. Mon. 9 ; Poor 354; Davis v. Co. Coni'rs, 63 Me. Com'rs v. Lynah, 2 McCord, 170; 396 ; Lord Denman in R. v. Dar- Schlaudecker v. Marshall, 72 Pa St lington, 12 L. J. Q. B. 128; Brad- 200. 42 GENERAL PRINCIPLES. [§ 40. son to office, such discretion must be exercised in a fair, candid and unprejudiced manner, but that they will not compel a disclosure of the grounds by which the conclusion was arrived at. 1 In a mandamus proceeding to admit and swear in the relator as an alderman, the return was that the respondents had examined into the matter and had deter- mined that the relator was not a fit person to be an alder- man, as the law authorized them to do. All the judges held, that the respondents were not required to state the grounds for their conclusion, and Pattison, J., considered that it would be improper for them to do so, but Taunton, J., said that if they did allege their reasons, and such reasons were bad, the court would interfere. 2 Again the return itself has been held to be a conclusive disproof of any fraud or prejudice. "When in an application for a mandamus to compel a village board to approve the bond of a liquor dealer, it was alleged that the board had arbitrarily refused to receive the bond, and the sworn return stated that they had examined it and upon investigation found the sureties to be insufficient, stating the ascertained resources of each surety, the court held that there was nothing to show that their discretion was not exercised reasonably and in good faith. 3 Such a ruling would enable the respondents in every case to defeat any effort to review their actions in matters involving discretion or judgment by merely inserting proper allegations in their returns; but the weight of authority does not sustain this ruling. Where the respondents give their reasons for their action, which reasons are adjudged to be invalid, of course no difficulty is presented. 4 Where a party had a discretion as to the approval of a bond solely 1 Lord Ellenbury in R. v. Canter- 2 King v. London (Mayor), 3 Barn, bury (Archb.), 15 East, 139 ; Lord & Ad. 255. Holt in Phillips v. Bury, 2 T. R. 356, 3 Palmer v. Hartford (Village), 73 his dissenting opinion being sus- Mich. 96. tained on appeal, 1 L. Raym. 5; 4 King v. London (Mayor), 3 Barn. Mobile, etc. Co. v. Cleveland, 76 & Ad. 255. Ala. 321 ; King v. Gloucester (Bishop), 2 B. & Ad. 158. § 40.] GENERAL PRINCIPLES. - : J relative to the responsibility of the sureties thereon, and it ■ appeared by the pleadings in the mandamus proceedings that his objections to the bond did not relate to the sure- ties, a peremptory writ was issued ordering the approval of the bond. 1 When a court had only a limited discretion about issuing licenses to wholesale liquor dealers, it was held that if the return to the alternative writ showed no reason, or one invalid under the law, for refusing the license, the mandamus should issue; that if it showed a sufficient ground for such refusal the proceedings must be dismissed. 2 In a similar case the court said that if a remonstrance ao-ainst the issuance of the license was filed and heard as shown by the return, it would thereby appear there was sufficient reason for the refusal, and the writ would be de- nied. 3 In some cases the courts have held the abuse of dis- cretion to be admitted, because the cases were submitted on demurrers to the alternative writ, thereby admitting the charge made in the writ, or because the returns did not properly meet the allegations of the alternative writ, and they have proceeded to grant the relief asked. 4 Where malice and an attempt to use discrimination in order to build up an institution in which the respondents were in- terested, and to destroy opposition thereto, were directly charged, such charges were considered to be admitted by the submission of the cause on demurrer. 5 When a county court refused to hear any testimony relative to a bond offered for its approval, or to pass on the sufficiency of the security offered, the court ordered the county court to accept and approve the bond, the case having been submitted on a de- murrer to the alternative writ. 6 In a similar case submitted on demurrer, the county court, after arbitrarily rejecting the iBriggs v. Hopkins, 16 R. I. 83; ^Zanove v. Mound City, 103 111. McLeocl v. Scott (Oreg., June 24, 552. 1891), 26 Pac. Rep. 1061. 5 Dental Examiners v. People, 123 2 Prospect B. Co.'s Petition, 127 Pa. DL 227. St. 523. estate v. La Fayette Co., 41 Mo. sCollarn's Petition, 134 Pa St. 545. 551. 44 GENERAL PRINCIPLES. [§ 40. bond offered, at once declared the office vacant ; the higher court issued a peremptory mandamus to accept and approve the bond offered. 1 When the respondents in their return fail to give their reasons for their official action in refusing to issue a license, to which any citizen is entitled upon placing himself within the provisions of the law, and in their answer assume that they are the sole arbiters of the question, the court can only assume that they have acted arbitrarily and without reason. 2 In such matters the officers cannot reject a petition without assigning any reason and without allow- ing relief to the appellant by an appeal to the courts. They must assign their reasons for their action that the petitioner may have a chance to remove their objections. 3 There are a number of decisions to the effect, that the relator must allege and prove, unless it is admitted, that the officer has exercised his judgment in a fraudulent or arbitrary manner, before the court will interfere in his behalf, and that it will then grant him the desired relief. 4 Where it was objected, that a mandamus could not issue to compel a city to issue its bonds to a railroad in accordance with its subscription, be- cause the city council was first to certify that the work was done properly and to its satisfaction, the court said that, if an official duty is to be performed on the happening of an event, the officer cannot arbitrarily or capriciously refuse to perform it after the event has happened. If the fact ex- ists and is established by sufficient proofs, it is his legal duty to be satisfied and to act accordingly. The fact of the due performance of the work being shown in the mandamus proceeding the peremptory writ was awarded. 5 It has been 1 State v. Texas Co., 44 Mo. 230. required them to do so. Parker v. * Amperse v. Kalamazoo (City), Portland, 54 Mich. 308. 59 Mich. 78. 4 Jones v. Moore Co. (Com'rs), 3 Amperse v. Kalamazoo (City), 106 N. C. 436 ; State v. Health Board 59 Mich. 78; Mixer v. Manistee (State), 103 Mo. 22; State v. Wil- County (Sup'rs), 26 Mich. 423. In mington Common Council, 3 Harr. another ease it was stated that 294; State v. Benton, 25 Neb. 834. common courtesy required them to 5 Stockton, etc. R. R v. Stockton, give their reasons, but that no law 51 Cal. 328. § 41.] GENERAL PRINCIPLES. 45 held that where there is a clear and manifest abuse of dis- cretion, as where a board, which bas a discretion on that subject, should refuse to build a bridge, which is absolutely and essentially necessary for the enjoyment of an ancient highway, 1 or the board of trustees of a town, with a discre- tionary power in the matter, should refuse to provide for the improvement of the public streets, when the necessity for such action is so apparent and obvious as to justify the inference that they have determined not to discharge a plain duty, 2 the writ of mandamus will issue. In these cases it is evident that parol testimony would be required to prove such necessity. In proceedings to restore attor- neys who have been disbarred by the courts, evidence is freely introduced, and the attorney is restored if it is found, that the court decided erroneously on the testimony, or the case is outside of the exercise of the lower court's discre- tion, or is one of irregularity, or against law, or of flagrant injustice, or without the jurisdiction of the lower court. 3 § 41. The abuse of discretion must be flagrant.— But the action of an officer in a matter which calls for the ex- ercise of his discretion or judgment will not be reviewed by the writ of mandamus, unless he has been guilty of a clear and wilful disregard of his duty, 4 or such action is shown to be extremely wrong or flagrantly improper and unjust, 5 so that the decision can only be explained as the result of caprice, passion or partiality." The weight of authority is evidently to the effect that such abuse of dis- cretion can be proved by evidence in a mandamus proceed- ing, but the proof must be very clear and convincing, and the allegations thereof ought to state the grounds for such 1 State v. Essex (Freeholders). 23 Davis v. County Com'rs, 63 Me. 39G ; N. J. L. 214. State v. Kirke, 12 Fla. 278; Vincent 2 Catlettsburg (Trustees) v. Kin- v. Bowes, 78 Mich. 315; Manor v. ner, 13 Bush, 334. McCall, 5 Ga. 522. 3 State v. Kirke, 12 Fla. 278; Brad- 5 Burr, Ex parte, 9 Wheat. 529; ley, Ex parte, 7 Wall. 364 ; People v, R v. Essex (Just), 2 Chit 385. Turner, 1 Cal. 143. 6 Detroit, etc. Co. v. Gartner, 75 4 State v. Benton, 25 Neb. 834; Mich. 360. 46 GENERAL PRINCIPLES. [§§ 42, 43. belief. Simply to say in a petition for a mandamus that the officer abused his discretion is merely to apply an epithet without denning the act. 1 § 42. Writ of mandamus will not lie to undo what has been done. — When there is nothing to be done but to en- force a legal duty, the writ of mandamus will lie, but if anything remains to be done or fact to be ascertained, the writ will not lie.' 2 A mandamus was applied for to compel the county treasurer to pay a warrant of the board of police. The return stated that the warrant was to be paid in Con- federate money. It was held that in such a proceeding the difference in value between such money and legal money could not be ascertained, and the writ was dis- missed. 3 The writ lies to do what ought to be done and not to undo what ought not to have been done. 4 Where a corporation has affixed its seal to its register of sharehold- ers, a mandamus to compel it to take its seal from such reg- ister was refused. 5 § 43. Mandamus and injunction contrasted. — Man- damus and injunction should not be confounded. The lat- ter is used to prevent action, to maintain affairs in statu quo. The former is compulsory, commanding something to be done. An injunction is preventative and protective merely, and not restorative. 6 It interposes between the complainant and the injury he fears or seeks to avoid. If the injury be already done, the writ can have no operation, for it cannot be applied correctively so as to remove it. It is not used for the purpose of punishment, or to compel persons to do right, but simply to prevent them from doing wrong. 7 It is sometimes used as an affirmative remedy, i Detroit, etc. Co. v. Gartner, 75 5 Nash, Ex parte, 15 Q. B. 92. Mich. BOO. 6 Washington University v. Green, 2 Webster v. Newell, G6 Mich. 503. 1 Md. Ch. 97 ; Sherman v. Clark, 4 3 Clayton v. McWilliams, 49 Miss. Nev. 138; Crawford v. Carson, 35 311 Ark. 5G5. * White's Creek T. Co. v. Mar- " Attorney-General v. New Jersey shall, 2 Baxt. 104 ; Burtis, Ex parte, R. & T. Co., 3 N. J. Eq. 136. 103 U. S. 238 ; Nash, Ex parte, 15 Q. B. 92. § 41. J GENERAL PRINCIPLES. 47 but only by the chancery court to carry into effect its own decrees, 1 commanding the party not to allow things to con- tinue in the condition in which they have been allowed to become. 2 Mandamus, however, is compulsory and requires the doing of an act. 3 It lies to command the doing of what ouo-ht to be done, and not to undo what has been done. 4 It does not revise nor correct action. 5 It cannot command to abstain from a tort or abuse of office.'* It never had the effect of the old writ of de molestando. 1 It will be refused to prevent one claiming to be elected from exercising his office or to enjoin him from qualifying. 8 When officers re- quested a urn mil in us to prevent others from molesting them in the exercise of the functions and powers of their offices, the court refused the writ, stating that if the writ were issued for such cause, it would become merely a substitute for an injunction. 9 Such substitution will not be allowed. 10 § 44. Are preliminary questions judicial or minis- terial '? — It often happens that a ministerial duty exists, which may be enforced by the writ of mandamus provided certain facts exist. It becomes important to decide whether the determination as to the existence of such facts is a judicial or ministerial act. Hardly a case can be imagined when a public officer or tribunal is required to take action upon the happening of an event or upon the existence of a certain condition of things wherein there is not some dis- i Walkley v. City of Muscatine, 6 9 Legg v. Annapolis, 42 Mtl. 203. Wall. 481. io Crawford v. Carson, 35 Ark. 5C5. 2 Washington University v.Green, In Gayle v. Owen Co. Court, 83 Ky. 1 Md. Ch. 97. 61, a mandamus was considered to 3 Crawford v. Carson, 35 Ark. be the proper remedy to prevent 565 ; Peat's Case, 6 Mod. 229. the judge and the clerk of a county i White's Creek T. Co. v. Mar- court from recording the vote upon shall, 2 Baxt. 104; Burtis, Ex parte, a local option law when the law 103 U. S. 238; Nash, Ex parte, 5 was unconstitutional. The law Q. B. 92. made such record conclusive that 5 Harris, Ex parte, 52 Ala. 87. all the proceedings tinder it were 6 Reg. v. Peach, 2 Salk. 572. regular. It is not seen why an in- 7 Peat's Case, 6 Mod. 229. junction would not have been the 8 People v. Ferris, 76 N. Y. 326. proper remedy. 48 GENERAL PRINCIPLES. [§ 45. cretion to be exercised as to whether the event has hap- pened, or whether the condition of things has occurred. A board canvassing election returns must determine whether the papers submitted to them as the returns are genuine. A marshal or sheriff, when a civil or criminal process is placed in his hands to be served, must determine whether he is serving or arresting the proper party or attaching the proper property. Any board or tribunal called on to act must determine whether the proper parties are before it, and whether the facts exist calling for its action. If such determination is judicial and is adverse to the taking of any action, such officer or board cannot be called on to do an act which it is his or its duty to do only in case the facts are different from such conclusion, because no judicial de- termination can be reviewed or overthrown in mandamus proceedings. If it should be held chat in all cases the de- termination of such preliminary questions calls for the exercise of judicial discretion, the writ of mandamus, as has often been said, might as well be expunged from the remedial code. If such determination is not an exercise of judicial discretion, then the courts can review such deter- mination, and, finding that the facts justify the demand, can order the performance of the ministerial act, which is a duty under those circumstances. In their conclusions on this question the courts are not in harmony. § 45. English rule as to preliminary questions. — The English courts have held that when a subordinate tribunal or board decides on a point, preliminary to the whole case, or to the reception of a particular piece of evidence, that it will not hear the case further, that such action is conclusive on any point involving a matter of fact only, and the writ will not issue ; but if the point decided involves a matter which the court can see to be a question of law, the decision may be reviewed by this writ. 1 In a later case Lord Cock- 1 Q. v. Kesteven (Just.), 3 Q. B. Reg. t. Liverpool, 1 Eng. L. & Eq. 810; R. v. Flintshire (Just), 11 Jur. 291; Q. v. Brown, 7 Ellis & B. 757; 185; Q. v. Leicester, 15 Q. B. 671 ; Milner, Ex parte, 6 Eng. L. & Eq. § 46.] GENERAL PRINCIPLES. 49 burn qualified this by saying, that if the question turned on a matter of fact, the circumstances must be very special to induce the court to interfere by this writ. 1 § 46. American rule as to preliminary qnestions. — The United States supreme court holds that, when it is nec- essary for the officer or tribunal to hear evidence to deter- mine the question, the decision is judicial and not reviewable by mandamus. 2 In New York, when a subordinate body is vested with power to determine a question of fact, the duty is judicial. 3 In Missouri it is decided that if an in- ferior tribunal declines to hear a case upon what is termed a preliminary objection, and the objection is purely a mat- ter of law, the writ will issue if such tribunal has miscon- strued the law. 4 In fact most of the authorities agree that, if the tribunal dismisses the case under the mistaken conclusion that it has not jurisdiction thereof, its action will be reviewed by the writ, and it will be compelled to pass on the subject. 5 The writ was issued against the mayor of a city to compel him to sign an order against the city for the payment of money, though he was first required to satisfy himself that the claim was audited, that the city council had authority to appropriate money for such a claim, and that it had made the appropriation. 6 In Louisi- ana, when the court refuses to go into the trial of a case upon an erroneous construction of a question of law or of practice, preliminary to the whole case, this writ will issue. 7 In Texas it is considered to be immaterial whether the act is a preliminary one, but that the nature of the question on which the court is called to act, and the char- 371 ; Q. v. Richards, 20 L. J. Q. B. * Castello v. St. Louis Cir. Ct., 28 351 ; King v. Frieston (Inhab.), 5 B. Mo. 259. & Ad. 597. 5 Parker, Ex parte, 120 U. S. 737 ; 1 R v. Monmouth (Mayor), L R. 5 Beguhl v. Swan, 39 CaL 411 ; State <2- B. 251. v. Laugh! in, 75 Mo. 358. See § 203. 2 Secretary v. McGarrahan, 9 6 State v. Ames, 31 Minn. 440. Wall. 298. 7 state v. Ellis, 41 La. An. 41. 3 People v. Troy (Com. Coun.), 78 N. Y. 33. 4 50 GENERAL PRINCIPLES. [§ 46. acter of the judgment which it must render, decide the nature of the act. "Where a court dismissed an appeal be- cause it considered that the appeal bond was insufficient, its action was considered to be judicial, and the writ was re- fused, though no appeal or writ of error was allowable. 1 In several other cases in other states, where the appeal was dis- missed for lack of jurisdiction, either of the individual case or of any cases of that nature, such action was held to be judicial and therefore not reviewable by mandamus? though there was no other remedy, 3 and sometimes for the addi- tional reason that such a use of the writ of mandamus would convert it into a writ of error. 4 "When a mayor was requested to call an election in accordance with the law, providing therefor in case fifty qualified voters signed the petition, and there was a surplus to territory, when a division thereof by vote was authorized, it was considered that his action in determining these two facts called for judgment and discretion, and upon his refusal to call the election, a writ against him, to compel him to do so, was refused. 5 The decision of an auditing officer is conclusive as to the amount which the law permits him to allow, but his decision as to whether the claim is in its nature within the statute is re- viewable on mandamus? In South Carolina the fact, that a reasonable doubt exists as to some necessary fact on which the duty of performance depends, does not interfere with the certainty of the duty, when the ascertainment of such fact is the proper subject of judicial inquiry, for in that case the officer, if doubtful as to the fact, may put the party demanding performance to proof of such fact in a proper judicial proceeding as in mandamus. It is admitted, how- i Ewing v. Cohen, 63 Tex. 482. parte, 108 U. S. 566 ; Treadway v. 2 People v. Dutchess C. Pleas Wright, 4 Nev. 119. On this propo- ( Judges), 20 Wend. 658 ; People v. sition the courts are much divided. Weston, 28 Cal. 639; Goheen v. See § 205, where the question is Myers, 18 B. Mon. 423. more fully considered. 3 People v. Garnet t, 130 111. 340. 5 Sansom v. Mercer, 68 Tex. 488. * Railway Co., Ex parte, 103 6 Black v. Auditor, 26 Ark. 237. U. S. 794 ; Baltimore, etc. R. R, Ex § 47.] GENERAL PRINCIPLES. 51 ever, that a public officer or public body may be clothed with power to determine conclusively the existence of any fact as bearing on the performance of a public duty, in which case the courts will not review the decision arrived at. 1 § 47. Subject continued. — In several states, whether such preliminary questions are ministerial or judicial de- pends upon the general nature of the duties to be per- formed, no matter how many questions are to be decided or whether they involve matters of law or of fact. 2 In Nevada the rulings are very decided. " Whether the de- cision is judicial or ministerial depends upon the nature of the act to be commanded by the writ, and not upon the de- termination of preliminary questions. Such questions, no matter how difficult, must be determined by the officer in advance, and, if he refuse to do so, by the court, before the writ can issue. This applies whether such act is purely ministerial or judicial. Thus, before a judge settles a bill of exceptions, he must decide whether the party has a right to it, whether it is in proper form, and whether it is regularly presented. Such questions are certainly judicial; but if he errs in his conclusions, a mandamus will issue." 3 Yet, when the board of county commissioners were re- quired by law to order an election of county officers, if five hundred qualified voters petitioned therefor, it was held that the decision of such board, as to whether five hundred qualified voters so petitioned, was judicial, and the writ of mandamus was refused. 4 In Kentucky it was considered, that the officer's decision on such preliminary question is only the decision of the other party to the mandamus pro- ceeding, and should not bind his adversary, and that the court, which has power to issue the writ, must have power to determine all questions on which depend the propriety 1 Morton v. Comptroller-General, 41 Mo. 221 ; Candee, Ex parte, 48 4 Eich. (N. S.) 430. Ala. 386. 2 Manns v. Givens, 7 Leigh, 689 ; 3 state v. Murphy, 19 Nev. 89. Doolittle v. County Court, 28 W. 4 State v. Eureka Co. Louisville, etc. R R. v. State, 25 594 : People v. New York (Mayor), Ind. 177. 10 Wend. 393 ; People v. State Au- 3 Colley v. Webster, 59 Conn. 361. 58 GENERAL PRINCIPLES. [§ 53. purposes to another township, because an appeal la}' to the county examiner ; ! in all cases where appeals are allowed to other courts, boards or officers ; 2 to make the registrar of joint-stock companies file an agreement which he re- fused to file because the tax was not paid, for the reason that the law provided another remedy ; 3 to compel the ad- mission of a colored child to a public school, because the father could bring suit ; 4 to recover moneys expended or misapplied by public officers, because suit could be brought ; 5 to make a railroad keep a street in repair in accordance with its contract, because suit could be brought on its con- tract ; 6 to compel city authorities to audit a bill for services, since an action at law would lie ; 7 to make a judge sign a bill of exceptions, since the law provided that by-standers might do so upon his refusal ; s to enforce the contract of a county to pay for volunteers, since an action at law lies; 9 to compel a county treasurer to pay county warrants, though he has the money, since there is a remedy on his bond, 10 and to make a corporation pay a dividend it has declared. 11 Where, however, a remedy by appeal, 12 certio- rari^ or quo warranto™ is not considered under the circum- stances to be a sufficient remedy, the writ will issue. In some cases a criminal proceeding has been considered suffi- ciently efficacious to accomplish the result desired, and ac- cordingly the writs were refused. A mandamus was re- i Fogle v. Gregg, 26 Ind. 345. 6 State v. New Orleans, etc. R R, 2 State v. Platte Co. (County Ct), 37 La. An. 589. 83 Mo. 539 ; Chambers, Ex parte, 10 ' Wheelock v. Auditor, 130 Mass. Mo. Ap. 240 ; State v. Marshall, 82 486. Mo. 484 ; Shine v. Kentucky C. R. 8 State v. Wickham, 65 Mo. 634. R, 85 Ky. 177 ; Mackey, Ex parte, 9 State v. Howard Co., 39 Mo. 375. 15 S. C. 322 ; State v. Baltimore 10 State v. Bridgman, 8 Kans. 458. (Co. Com'rs), 46 Md. 621 ; Barksdale n People v. Central, etc. Co., 41 v. Cobb, 16 Ga. 13 ; Boone County Mich. 166. (Board Comr's) v. State, 38 Ind. 193 ; " Careaga v. Fernald, 66 CaL 351. Marshall v. Sloan, 35 Iowa, 445. "state v. County Com'rs, 83 Ala. 3 Q. v. Registrar, 21 Q. B. D. 131. 804. < Kaine v. Com., 101 Pa. St 490. " Lewis v. Whittle, 77 Va. 415. 5 Elder v. Washington Ter., 8 Wash. T. 438. 59 o kq 1 GENERAL PRINCIPLES. fused against the treasurer of a county to make him pay the costs of a witness in a felony case, pursuant to an order of the borough court of sessions, because an attachment was allowable on an indictment for disobedience.* A man- damns to open a highway was refused where the real ob- iect was to remove obstructions from it, since an indict- ment lay against the offender, and upon his conviction it was the duty of the court to order the sheriff to remove the obstructions. 2 The writ was refused to make a minis- terial officer obey the orders of the quarter sessions, since indictment was the proper remedy.' When the parties have a sufficient remedy in their own hands the writ will be refused It was refused : to compel the land-owners to amend and repair certain river banks, which they were liable to repair rations tormina, since the relators, the con- servators of Bedford Level, had the authority of commission- ers of sewers; 4 and to the overseers of the poor to produce their accounts to the auditor appointed by the poor-law com- missioners, since the auditor need not allow their accounts unless the particulars are furnished to him.* It is no reply to the application for this writ, that another proceeding may attain the same object. The relator has a right to deal with the existing state of things, and is not bound to abandon them 6 The plain, adequate and speedy remedy by an ordi- nary action, which will defeat the right to a mandamus, must be a remedy against the respondent in the , mandamus proceeding, and not against third persons. To a manda- mus against a board of county canvassers to reconvene, count the votes and declare the proper result, it is no de- fense to answer that the relator may have a quo warranto against the person declared to be elected • To a mandamus to the auditor to issue a warrant for the relator's salary as XKing v. Surrey (Trea,), 1 Chit ^ J^f « ^^ P °° r) ' ^HaleCCom'rsHighway^v.Peo- W^bS^ ^ ^^ i <-* tii vm ors), 4 B. & Ad. 530. " = Bng v Bestow, 6 T. B. 168. ' People v. Greene Co. (Sup'rs), 1Q. v. Gamble, 11 A. & E. 09. 12 Barb. 217. 60 GENERAL PRINCIPLES. [§ 54. the superintendent of schools, it is no defense that he has paid the salary to another, since the relator cannot be com- pelled to exhaust his remedies against the other. 1 "Where a judgment for personal injuries sustained was obtained against a town and an individual, the judgment creditor was allowed a mandamus to compel the town authorities to levy a tax to pay the judgment, though the other defendant had prop- erty subject to levy. The creditor had a right to compel the town by this proceeding to pay him, and to refuse to him this writ, even though its issuance produced a circuity of actions, would be an interference with his rights. 2 To prevent the issuance of this writ there must be a specific, adequate and legal remedy, competent to afford relief upon the very subject-matter of his application. 3 If, however, it is doubtful whether there is another adequate remedy, or the court cannot clearly see its way to one, the writ will issue. 4 The court is guided in its decision by the nature of the right itself, without regard to the special circumstances of the particular case. 5 So if it is doubtful whether the party is entitled to the writ, the court will often order the rule or issue the alternative writ, and allow the matter to be fully considered and finally decided at the hearing. 6 § 54. Other remedy must be specific. — Such other rem- edy must be specific. A specific remedy is one which will place the party in the position he occupied before the act complained of, 7 or would have occupied had the duty been performed, 8 or will afford relief upon the very subject-mat- ter of his application. 9 A mandamus to compel the transfer of stock of a corporation was allowed, because, though an action for damages might be an adequate remedy, yet the 1 "Williams v. Clayton (Utah, Mar. 5 r. Vt Victoria Park Co., 1 Q. B. 8, 1889), 21 Pac. Eep. 398. 288. 2 Palmer v. Stacy, 44 Iowa, 340. <* Queen v. Heathcote, 10 Mod. 48. 3 State v. "Wright, 10 Nev. 167. 7 Etheridge v. Hall, 7 Port. 47. * Rex v. Nottingham O. W. W., 8 Sessions v. Boykin, 78 Ala. 328. 1 N. & P. 480 ; Ottawa v. People, 9 State v. Wright, 10 Nev. 167 ; 48 Bl. 233; Baker v. Johnson, 41 Raisch v. Board of Education, 81 Me. 15 ; State v. Wright, 10 Nev. 167. Cal. 542. § 55.] GENERAL PRINCIPLES. 01 relator was entitled to the specific relief of being admitted to the corporation as a stockholder, and being allowed to participate in its franchises. 1 It has been held that the writ will issue, though there is a specific legal remedy, if that remedy has become obsolete. 2 Such ruling may be appropriate in England, where legal practice has been s} T s- tematized by the accretions and changes of centuries, but would hardly be accepted in America, where the obsolete portions of the English law were never adopted. § 55. Other remedy must be a legal remedy. — Such other remedy must be a legal remedy in the ordinary course of law. 3 Though it seems that in early times the writ of man- damus was occasionally issued from a court of chancery, yet it is now held to be exclusively a legal remedy. 4 Con- sequently the existence of a specific equitable remedy is not a ground for refusing the writ. 5 It is only an element to be taken into consideration by the court in exercising its discretion as to whether it will issue the writ. 6 The writ will not lie where there is a legal remedy by action. 7 The writ has been refused, because an action would lie against the county : to compel the county court to allow a claim against the count}?- ; 8 to compel the county supervisors to allow a claim ; 9 and to make the board of police provide for the payment of a warrant. 10 Where the law specificially provided another remedy the writ was refused : to make 1 Memphis, etc. Co. v. Pike, 9 to private corporations, Freon v. Heisk. 697. Carriage Co., 42 Ohio St., 80. 2 ! ! 3 Stephen's Nisi Prius, 2291; <>Tawas, etc. R. R. v. Circuit King Williams (Justices) v. Mun- Judge, 44 Mich. 479 ; People v. New day, 2 Leigh, 165. York (Mayor), 10 Wend. 393. 3 Baker v. Johnson, 41 Me. 15; t People v. Chenango Co. (Sup'rs), Tar ver v. Tallapoosa (Com'rs Court), 11 N. Y. 563; Lynch, Ex parte, 2 17 Ala. 527. Hill, 45. * Ante, §3. 8 state v. Floyd Co. (Judge), 5 5 People v. State Treasurer, 24 Iowa, 380. Mich. 468 ; Phoenix Iron Co. v. 9 Crandall v. Amador Co., 20 Cal. Com., 113 Pa, St. 563; R. v. Arch- 72. bishop, 8 East, 213 ; R. v. Stafford io Beaman v. Leake Co. (Board of (Marquis), 3 T. R. 646. Contra, as Police), 42 Miss. 237. 02 GENERAL PRINCIPLES. [§ 56. the county officers move their offices ; l to compel the tax collector to pay his collections into the parish treasury ; 2 and to compel a railroad to receive and transport freight without charging discriminatory rates. 3 The writ was re- fused: to compel an officer to surrender to the county commissioners a room in the court-house, which they had formerly assigned to him, because they had full control of the court-house and could bring ejectment ; 4 to make the owners of a new bridge, which interfered with the receipts of an earlier bridge, pay to the owners of the latter a cer- tain sum of money as provided by law, because an action of debt lay; 5 to make the board of supervisors levy a tax to pay an order from them on the county treasurer, because suit could be brought ; 6 to make the county treasurer pay bonds issued to a railroad from money received by him from a tax levied by law for that purpose, because there was sufficient remedy on his bond. 7 The writ will issue though it determines but one step in the controversy, and though it may still be necessary to resort to an injunction, a quo warranto or a contest of an election. 8 § 56. Relator must show a clear legal right.— The writ will not lie unless the relator shows a clear legal right to have the thing done which he asks for. 9 If the right be doubtful the writ will be refused. 10 A party put in a bid • State v. Stockwell, 7 Kans. 98. (Archb.), 8 East, 213 ; State Board 2 State v. Boullt, 26 La, An. 259. of Education v. West Point, 50 Miss. 3 State v. Mobile, etc K. R, 59 638; Morris, Ex parte, 11 Grat. 292; Ala, 321. State v. Hastings, 10 Wis. 518 ; 4 Wasboe Co. Com'rs v. Hatch, 9 Commonwealth v. Mitchell, 82 Pa, Nev. 357. St. 343 ; People v. Chenango Co, 5Q. v. Hull, etc. R. R,, 6 Ad. & E. (Sup'rs), 11 N. Y. 563; Tarver v (N. S.) 70. Tallapoosa (Com'rs Ct), 17 Ala. 527 6 People v. Clark Co. (Board of State v. Omaha (Mayor), 14 Neb. 265 Sup'rs), 50 111. 213. People v. Police Board, 107 N. Y. 235 ^State v. McGrillus, 4 Kans. 250. Bayard v. United States, 127 U. S s State v. Marshall County 246; Leigh v. State, 69 Ala. 261 (Judge), 7 Iowa, 186. Huckabee, Ex parte, 71 Ala. 427 <> Chicago, etc. R. R. v. Suffern, State v. Appleby, 25 S. C. 100 129 111. 274; Burnsville T. Co. v. Atchison v. Lucas, 83 Ky. 451. State, 1 19 Ind. 382 ; State v. Bonnell, ™ Beaman v. Leake Co. (Board Po- 119 Ind. 494; King v. Canterbury lice), 42 Miss. 237 ; Townes v. Nichols, § 56.] GENEKAL PRINCIPLES. 63 for a contract. The law required an approval of his bid by the common council before the contract was let. Until the contract was let he had no right of action. The common council might think it inexpedient to do the work, or that the prices were too high. The lowest bidder has no cause of ac- tion even if the contract is let to a higher bidder. His peti- tion to compel the letting of the contract to him was refused. 1 The writ was refused : to compel a sheriff to levy on property standing in the wife's name, which the execution creditor asserted belonged to the husband, since there was no clear legal right till the question of ownership was determined; 2 to compel the mayor to sign a warrant drawn by the comp- troller on the city treasurer, it being doubtful who was en- titled to the money, another party having sued the city therefor ; 3 to compel the county treasurer to pay a claim allowed by the board of supervisors, it being clear that the supervisors were imposed on ; 4 to compel a county treasurer to pay an order legally drawn on funds in his hands, when from extraneous circumstances a well-founded doubt arose as to the right of the applicant to receive it and of the officer to pay it ; 5 because the law was so vague that the right was doubtful ; 6 because the relator showed no interest whatever in the matter ; 7 to make the city treasurer accept $100 so that the relator might demand from the clerk a license to sell liquor, because such a license is not a contract, and he would thereby acquire no legal right. 8 The writ is not granted to enforce rights not of a legal but of a mere equitable nature, no matter how great the inconvenience. 9 73 Me. 515 ; State v. Burnside, 33 S. C. 2 State v. Craft, 17 Fla. 722. 276 ; State v. Washington Co. (Board 3 People v. Booth, 49 Barb. 31. Sup'rs), 2 Chand. 247 ; Mobile, etc. 4 People v. Wendell, 71 N. Y. 171. R R. v. People, 132 III 559 ; People 5 People v. Johnson, 100 I1L 537. v. Salomon, 46 111. 415 ; State v. 6 State v. Washington Co. (Board Grubb, 85 Ind. 213; People v. Davis, Sup'rs), 2 Chand. 247; State v. 93 111. 133 ; State v. Buhler, 90 Mo. Verner. 30 S. C. 277. 560 ; Free Press Asso. v. Nichols, 45 7 State v. Davis County (Co. Vt. 7. Judge), 2 Iowa, 280. 'People v. Croton Aqueduct 8 State v. Bonnell, 119 Ind. 494. Board, 26 Barb. 240. 9 Rugby Charity Trustees, Ex Ci GENERAL PRINCIPLES. [§ 57. A transferee of stock merely by delivery was refused this writ to compel a transfer of the stock by the corporation on its books, because he was merely an equitable assignee. 1 The title must be complete. The writ does not lie if the title is inchoate, 2 even though growing out of statutory duty, 3 nor if the legal right has not been ascertained ; * it does not lie to establish a right, but is used to enforce a right after its establishment. 5 A person asked for a man- damus to compel a member of a board and its clerk to recognize him as a member of the same board, though an- other party had been commissioned and was acting as such member, and though in a quo warranto proceeding brought by such other party he was perpetually enjoined from claiming the office. The quo warranto case was then pend- ing on appeal. The court considered that the relator's claim was not clear and refused the writ. 6 § 57. Obligation ou respondent to do the act must foe absolute. — This writ will not lie unless the act desired is of absolute obligation on the part of the person sought to be coerced. 7 The relator must show not only a clear legal right to have the thing done, but also by the person sought to be coerced, 8 in the manner sought, 9 and that he still has parte, 9 D. & E. 214; King v. Can- ^Swartz v . Lange (Kans., Nov. 7, terbuiy (Archb.), 8 East, 213 ; Lords 1891), 27 Pac. Rep. 992. Kenyon and Buller in R v. Abra- 7 R. v. Fowey (Mayor), 2 B. & C. hams, 4 Q. B. 157 ; King v. Stafford, 584 ; Morton v. Coinpt. Gen., 4 Rich. 3 T. R 646; Heffner v. Common- (N. S.) 430 ; Runion v. Latimer, 6 S. C. wealth, 28 Pa. St. 108. 126 ; Chicago, etc. R R. v. Suffern, iBurnsville T. Co. v. State, 119 129 Bl. 274 Ind. 382. 8 State v. St. Louis, etc. Co., 21 Mo. 2 Harris, Ex parte, 52 Ala. 87; Ap. 526: State v. Omaha (Mayor), 14 Chance v. Temple, 1 Iowa, 179; Neb. 265; People v. Klokke, 92 Bl. People v. Brooklyn (City), 1 Wend. 134; Highways (Com'rs) v. People, 318. 99 Bl. 587; State v. Jacobus, 2 3 Heffner v. Commonwealth, 28 Dutch. 135. Pa. St 108. 9 People v. Spruance, 8 Colo. 307 ; 4 Porter Township (Overseers) v. Daniels v. Miller, 8 Colo. 542; As- Jersey Shore (Overseers), 82 Pa. St. pen (Mayor) v. Aspen, etc. Co., 10 275. Colo. 191 ; Highways Com'rs v. 5 Hays, Ex parte, 26 Ark. 510. People, 66 111. 339. § 57.] GENERAL PRINCIPLES. 65 it in his power to perform the duty required. 1 The action sought must not only be in the respondent's power to do, but it must be his duty to do it. 2 The act must be clearly prescribed and enjoined by law. 3 The duty must be plain 4 and positive. 5 Where the law only required a county audi- tor to draw his warrant for claims audited by himself, a mandamus was refused to make him issue his warrant on the county treasurer for a claim audited and allowed by the board of supervisors." A duty, which involved a decision that a law was unconstitutional, was not considered to be plain. 7 A mandamus against the commissioners of highways to lay out a road was refused, because a certiorari in the proceedings relative thereto had been taken, which stayed all action, and it could not be considered to be a clear duty on the part of the commissioners to lay out the road. 8 The clerk of a board of supervisors was compelled to put the county seal on a warrant issued by his predecessor, who had neglected to do it, such duty being considered to be imperative. 9 A city clerk will not be required to perform acts demanded of him by the board of trustees, when such duties are not prescribed for him in the city charter, nor in the ordinances passed thereunder. 10 A police commissioner, who at the request of the other commissioners kept memo- randa of their nominations and agreed to notify the common council thereof, could not be required to correct such memo- randa, since he was merely rendering a service and was not required to keep the memoranda. 11 When there is a sub- i People v. Hayt, 66 N. Y. 606. Cutting, Ex parte, 94 U. S. 14 ; Mad- 2 Aspen (Mayor) v. Aspen, etc. Co., dox v. Neal, 45 Ark. 121. 10 Colo. 191 ; State v. Zanesville, 6 Draper v. Noteware, 7 Cal. 276. etc. Co., 16 Ohio St. 308 ; Arberry v. 7 Lynch, Ex parte, 16 S. C. 32 ; Beavers, 6 Tex. 457. State v. Hagood, 30 S. C. 519. 3Puckett v.White, 22 Tex. 559; 8 Highway Com'rs v. People, 99 Q. v. Radnorshire (J.), 15 L. J. (N. S.) HI. 587 % 151, M. C. ; Mobile, etc. R. R. v. 9 Prescott v. Gonser, 34 Iowa, 175. Wisdom, 5 Heisk. 125 ; Winters v. 10 Napa (City) v. Rainey, 59 Cal. Busford, 6 Cold. 328. 275. 4 Draper v. Noteware, 7 Cal. 276. » Pond v. Parrott, 42 Conn. 13. 5 State v. Appleby, 25 S. C. 100 ; 5 66 GENERAL PRINCIPLES. [§ 58. stantial doubt as to the officer's duty, the writ will be re- fused. 1 Such doubt means a doubt on the part of the court after an examination of the law. The doubt, no matter how strong or honest, which the party may have as to his duty in the premises, has nothing to do with the question. 2 It was held in one instance, that the writ would not be re- fused where there was a doubt as to the duty, arising from the construction or the effect and meaning of a judicial or- der. 3 In another case, where a judgment was ambiguous, having two constructions, a mandamus to make the clerk of the court issue an execution thereon was refused. 4 A magistrate was not required to issue a warrant and commit a party to prison for not paying a fine, it being doubtful whether he was required to do so, the law saying " it shall be lawful " for him to do so. 5 A mandamus to make a city treasurer accept $100 from the relator, so that he might demand from the city clerk a license to sell liquor, was refused, because his old license had not expired, and the clerk was not bound to issue a license before the time. 6 A writ to compel the admission of a person to the freedom of a corporation was refused, because the by-law on that subject was not imperative. 7 A mandamus was refused to compel a mayor of a town to issue a distress warrant on a conviction rendered by him, because the conviction, and alleged law governing the case, were open to grave objec- tions, which the court did not consider it was called on to decide in such a proceeding. 8 § 58. Mandamus not lie if act only to be done on ap- proval of another. — Where the act is only to be done in case another party approves thereof, a mandamus to com- 1 People v. Johnson 100 111. 537 ; 3 Larkin v. Harris, 36 Iowa, 93. State v. Grubb, S5 Ind. 213; State 4 Hall v. Stewart, 23 Kans. 396. v. Buhler, 90 Mo. 560 ; Greener v. 5 R ex v . Broderip, 5 B. & C. 239. Moore, 6 Colo. 526 ; Arberry v. Bea- 6 State v. Bonnell, 119 Ind. 494. vers, 6 Tex. 457 ; Com. v. County ' Rex v. Eye (Bailiffs), 1 B. & C. Com'rs, 5 Rawle, 45 ; Highway 85. Com'rs v. People, 99 111. 587. 8 Regina v. Ray, 44 Up. Can. Q. B. 2 State v. Auditor, 43 Ohio St. 311. 17. §§ 59, GO.] GENERAL PRINCIPLES. 67 pel such action will not lie. "Where it was the duty of a vestry to construct certain sewers, the plans whereof were first to be approved by the metropolitan board of works, a mandamus to compel the construction of the sewers was refused, though it was stated that a mandamus might lie to compel the vestry to go before the board with its plans and to procure its approval thereof. 1 § 59. There must be an officer to do the act desired. — Before the writ will issue there must be an officer in being with power and duty to do the act. The writ will not run to a person who was elected to an office but refused to qualify. He cannot be treated as a de facto officer. 2 § 60. Corollaries from preceding sections. — From the rules stated in the preceding sections certain propositions may be deduced which may be considered to be corollaries thereof. A court cannot order an officer to do an act which, without the order of the court, would not be his legal duty, 3 or which he could not lawfully do, 4 an act be- yond the duties enjoined upon him by law as pertaining to his office or position, 5 an act not authorized by law, 6 an act which is illegal, 7 or an act which was legal but has become illegal prior to the time for issuing the writ. 8 Since the writ only issues to enforce the law as it stands, it will not be used to enforce a casus omissus in the law. 9 An officer will not be compelled to issue a license to sell liquors, i Q. v. St. Luke's Vestry, 31 L. J. People v. Crotty, 93 111. 180 ; Q. v. Q. B. 50. Ambergate, etc. R. R, 1 El. & BL 2 State v. Beloit (Sup'rs), 21 Wis. 372 ; Ross v. Lane.. 3 Sm. & M. 695 ; 280. Menard v. Shaw. 5 Tex. 334 ; People 3 Greener v. Moore, 6 Colo. 658. v. Fowler, 55 N. Y. 252 ; Gillespie v. 4 State v. Orphans' Court (Judge), "Wood, 1 Humph. 437 ; Puckett v. 15 Ala. 740; Johnson v. Lucas, 11 White, 22 Tex. 559. Humph. 306. 8 People v. Hyde Park, 117 111. 5 Davis v. Porter, 66 Cal. 658. 462. 6 Chicot Co. v. Kruse, 47 Ark. 80 ; M Draper v. Noteware, 7 Cal. 276 ; Clay Co. v. McAleer, 115 U. S. 616; Q. v. Arnaud, 16 L. J. (N. S.) 50, Supervisors v. United States, 18 Q. B. ; Q. v. Radnorshire (J), 15 L J. Wall. 71. (N. S.) 151, M. C, ; 3 Stephen's Nisi 7 Clapper, Ex parte, 3 Hill, 458 ; Prius, 2291. 68 GENERAL PRINCIPLES. [§ 61. though at the time of the application for a license it was his duty to issue it, if by a change in the law prior to the issuance of a mandamus it has become a criminal offense to sell liquors. 1 Nor will a federal court compel state officers to levy a tax, when they are not authorized by state law to do so, 2 nor when they have already exhausted the power given them in that respect. 3 Commissioners of highways will not be compelled to open a highway which their pred- ecessors laid out without authority, since they would be committing a trespass. 4 A county auditor was not com- pelled to place on his duplicate certain taxes levied by a citv, because those taxes exceeded the rate allowed bv law. 5 Tax assessors were required by law to attach a certain oath to their assessment rolls. They stated in their return to an alternative writ of mandamus that they could not truth- fully make the oath required. The court refused to require them to do so, asserting that it would not force them to commit a crime. 6 A public body will not be required to violate a penal statute. 7 Nor will the writ be used to aid the enforcement of an illegal claim. 8 §61. Mandamus is entirely a civil remedy. — Though this writ partakes somewhat of a criminal nature, yet it is held by all the courts to be a civil remedy having all the qualities and attributes of a civil action. 3 In applying their practice acts to this writ some of the courts designate it as a civil action or an ordinary action at law, 10 and other courts, exempting it from such acts, have considered it to be a special proceeding or proceeding of a special character, or i Hall v. Steele, 82 Ala 562. ? State v - Bergen (Freeholders), 52 2 United States v. New Orleans, 2 N. J. L. 31?. Wood, C. C. 230; Clay Co. v. SBoardEduca. v. Detroit (City), 80 McAleer, 115 U. S. 616. Mich. 548. s Supervisors v. United States, 18 SMcBane v. People, 50 111. 503; Wall. 71. Brower v. O'Brien, 2 Ind. 423 ; Judd 4 Clapper, Ex parte, 3 Hill, 458. v. Driver, 1 Kans. 455. 5 State v. Humphreys. 25 Ohio St io Dement v. Eokker, 126 111. 174; 520. Dove v. Ind. Sch. District, 41 Iowa, 6 People v. Fowler, 55 N. Y. 252. 689. § 61.] GENERAL PRINCIPLES. 69 a supplementary remedy. 1 It is applied solely to the pro- tection of civil rights, 2 but this includes an interference in criminal proceedings, when necessary to protect such rights. It has been granted to make the justices hear a criminal case, 3 to compel the issuance of a summons in a criminal case, 4 to make an officer, before whom a person committed by a justice of the peace to await indictment was brought on habeas corpus, hear and pass on the evidence touching the prisoner's guilt, 5 and to make a judge enter judgment on the verdict of the jury and pass sentence accordingly, 6 to make a magistrate enforce a conviction, 7 and to compel a court to proceed and try a criminal case, wherein it has erroneously decided that it has no jurisdic- tion and has refused to proceed, 8 or tliat it. has no authority to proceed further in the cause. 9 Unless protection is sought for property or against the infringement of personal rights, the writ will not issue. Political rights are not protected by the courts. 10 i State v. Lewis, 76 Mo. 370 ; Gil- Q. v. Mainwaring, Ellis, B. & E. man v. Bassett, 33 Conn. 298 ; Ken- 474 : Reg. v. Bristol (J.), 28 Eng. L. tucky v. Dennison, 65 U. S. 66 ; & E. 160. Williamsport (City) v. Com., 90 Pa. 4 Q. v. Adamson, 1 Q. B. D. 201. St. 498 ; State v. Chicago, etc. R R, 5 Mahone, Ex parte, 30 Ala. 49. 19 Neb. 476 ; Burnsville T. Co. v. 6 State v. Snyder, 98 Mo. 555. State, 119 Ind. 382; Leigh v. State, 'King v. Robinson, 2 Smith, 274. 69 Ala. 261 ; Rosenbaum v. Sup'rs, 8 State v. Laughlin, 75 Mo. 358 ; 28 Fed. R. 223 ; Chumasero v. Potts, Q. v. Brown, 7 Ellis & B. 757. 2 Mont. 242. 9 Turner, In re, 5 Ohio, 542. 2 State v. Gracey, 11 Nev. 223. u> Georgia v. Stanton, 6 Wall. 50. 3Q. v. Brown, 7 Ellis & B. 737; CHAPTEK 6. DISCRETION OF COURT IN ISSUING THE WRIT. § 62. Nature of the discretion of the court 63. Illustrations of exercise of discretion. 64. Limitations as to the use of the writ from its nature. 65. Subject continued. 66. The court will try to make the writ the means of obtaining sub- stantial justice. 67. The writ will be granted only in cases of necessity. 68. Relator must show good motives and correct actions 69. Mandamus will be refused to direct an officer's general course of conduct. 70. Writ refused when delay in acting not unreasonable. 71. Writ will be refused when it will work injustice. 72. Writ will be refused when justice will not be subserved thereby. 73. Writ will be refused when it will operate harshly. 74. The writ will not be issued unless it can effect substantial jus- tice. 75. The writ will not issue when it will be unavailing. 76. Subject continued. 77. If the relator's rights expire before the hearing, the writ will be refused. 78. Writ will be denied if respondent has gone out of office or the act ceases to be his duty. 79. Mandamus to compel an action after the time limited for its per- formance. 80. Instances of issuing the writ after the time to perform tiie act had expired. 81. The court will protect the respondent's rights. 82. Parties will not be harassed by suits. 83. Discretion used in protecting the rights of third parties. 84. The writ will not issue when another tribunal can require the act to be done. 85. The last rule not strictly observed. 86. A mandamus not issued to command A. to command B. 87. Laches will bar relief by mandamus. 88. Discretion of court when the state is relator. 62.J DISCRETION OF COURT. 71 § 62. Nature of the discretion of the court.— This writ was originally, and still remains in England, a prerogative writ, and was issued at the discretion of the court. 1 In America, at the present time, it is but seldom considered to he a prerogative writ, 2 Owing to the nature of our gov- ernment or statutory provisions on the subject, it is gener- ally considered as more of a writ of right, 3 to be issued in cases to which it applies, 4 and is considered to be an ordi- nary action at law, 5 and prosecuted in all respects as an or- dinary action. 5 But, whether it be called a prerogative writ, a writ of right, or an ordinary action at law, the au- thorities agree that the courts have a discretion whether they will issue or refuse the writ, 7 even where a prima facie right thereto is shown. 8 Though there be no other remedy, the court will still exercise its discretion on the subject. 9 Such discretion must be a sound discretion, 10 guided bylaw. It must be governed by rule, 11 not by humor. It must not be arbitrary, 12 vague and fanciful, but legal and regular. 13 "Where a party is entitled to a right, as to have a bill of ex- i Leigh v. State, 69 Ala. 261; • Dist. Twp. v. Ind. Dist., 72 Iowa. Bank of State v. Harrison, 66 Ga. 687. 696; Rex v. Barker, 3 Burr. 1265; 'People v. Weber, 86 111. 283; R v. Clear, 4 B. & C. 901 ; Kendall Daly v. Dimock, do Conn. 579; v, United States. 12 Pet. 524. Evans v. Thomas, 32 Kan. 469; 2 People v. Board Metrop. Police, Belcher v. Treat, 61 Me. 577 ; State 26 N. Y. 316. v. Buchanan, 21 W. Va. 362 ; Davis * 3Churaaserov.Potts.2Mont.242; v. York Co. (Com'rs), 63 Me. 396; State v. Com'rs Jefferson Co., 11 State v. Phillips Co. (Com'rs), 26 Kan. 66. Kan. 419. *Haymore v. Yadkin (Com'rs), STennant v. Crocker, 85 Mich. 85 N. C. 268; Hartmanv.Greenhow, 328. 102 U. S. 672. 9 People v. Dowling, 55 Barb. 197. s People v. Weber, 86 111. 283 ; w State v. Anderson Co. (Com'rs), State v. Burnsville T. Co.. 97 Ind. 28 Kan. 67; Alger v. Seaver, 138 416; State v. Lewis. 76 Mo. 370; Mass. 331; King William Just v. State v. Lancaster. 13 Neb. 223; Munday, 2 Leigh, 165. State v. Chicago, etc. R R, 19 Neb. » People v. Chapin, 104 N. Y. 96. 476 • Kentucky v. Denison, 65 U. S. 12 Fitch v. McDiarmid, 26 Ark. 482 ; 66 ; Gilman v. Bassett, 33 Conn. 298 ; Prop rs St. Luke's Church v. Slack, Williamsport (City) v. Com., 90 Pa 7 Cush. 226. st 49^ U Mackey, Ex parte, 15 S. C. 322. 72 DISCRETION OF COURT. [§ 63. ceptions signed, though it is said to be in the discretion of the court as to whether it shall be ordered, still, being a right, it cannot be considered as discretionary on the part of the court. 1 It has been said that it is perhaps impossi- ble to lay down in advance a precise and inflexible rule to govern the discretion of the court. 2 Owing to the different theories held in England and America on the subject of this writ, the English courts, as should be expected, allow their discretion greater scope in issuing or refusing the writ than do the American courts, which are more inclined to consider its issue to be a matter of right, governed by well- established rules. § 63. Illustrations of exercise of discretion.— In exer- cising such discretion the court will consider all the circum- stances, reviewing the whole case with due regard to the consequences of its action. 3 It will consider the exigency, the nature and extent of the wrong or injury, which will follow a refusal, etc. 4 The writ was refused : where its issu- ance would long continue confusion in the city, which a little good advica might soon put an end to ; ' to make county commissioners pay the damages awarded a party upon con- demnation of his property, when they showed they had no money except what was required for the pressing necessi- ties of the county ; fi to make a judge ad hoc try a cause, when the validity of his appointment was being contested on an appeal ; 7 against the mayor of a city to appoint a chief of police, there being no other claimant to that office save the incumbent, against whom an information was pending to try his title thereto; 8 to make a city marshal station a police officer at a certain place, as ordered i Etheridge v. Hall, 7 Port. 47. 4 Tennant v. Crocker, 85 Mich. 328. 2 American, etc. Co. v. Haven, 5 Queen v. Heathcote, 10 Mod. 48. 101 Mass. 398. 6 Com - v - Philadelphia (Com'rs), 3 Alger v. Seaver, 138 Mass. 331 ; 1 Whart. 1. People v. Ketchum, 72 111. 212 ; Peo- ' State v. Earhart, 35 La. An. 603. pie v. East Saginaw (Com. Council), 8 Att'y-General v. New Bedford 33 Mich. 164; People v. Genesee (Mayor), 128 Mass. 312. Cir. Judge, 37 Mich. 281. § G4.] DISCRETION OF COUET. 73 by the board of aldermen ; l when it called for a decision as to the number of officers to be elected, necessitating the determination of the constitutionality of a statute, when the petition was presented only five days before the election and was practically submitted without argu- ment, whereas the matter required a full consideration with opportunity for all in interest to be heard. 2 § 64. Limitations as to the use of the writ from its nature. — This writ is described as " the right arm of the law." Its principal office is not to inquire and investigate, but to command and execute. It is not designed to assume a part in ordinary lawsuits or equitable proceedings. It has been said that it is properly called into requisition in cases where the law has been settled, or in cases where questions of law or equity cannot properly and reasonably arise, and that its very nature implies that the law, although plain and clear, fails to be enforced, and needs assistance. 3 Other courts give it a much more extended scope. Where a trial by jury is allowed, it would seem proper to extend it to any case which falls within the general principles govern- ing its application. It has been allowed where the taking of a long account was necessary, 4 yet it has been held, that the question, whether certain land is a public highway or not, will not be determined in a mandamus proceeding. 5 So it has been considered that, when the title to real estate is directly in issue, a mandamus is not proper to determine the question ; yet, when such question is only incidentally involved, and may affect the discretion of the court in awarding or denying the writ, it is proper that the court should be satisfied on the subject. 6 The federal courts con- fine the writ within a very narrow scope, 7 but other courts i Alger v. Seaver, 138 Mass. 331. 5 Tennant v. Crocker, 85 Mich. 2 State v. Com'rs of Douglas Co., 328. 18 Neb. 506. 6Eby v. School Trustees, 87 Cal. 3 Townes v. Nichols, 73 Me. 515. 166. 4 Haiues v. Saginaw Co., 87 Mich., ? See § 31. 237. 74 DISCRETION OF COURT. [§ 05. seldom place any restrictions when the case falls within the general principles governing the issuance of the writ. § 65. Subject continued. — Some courts in such proceed- ings refuse to pass on the constitutionality of a law on the ground that the rights of third parties, who cannot be heard in such proceedings, are involved, or that the question should be adjudicated in a more solemn manner, upon a full hearing, when properly presented by parties in an action. 1 The reasons given do not seem to justify such re- fusal. The questions of law can be as thoroughly pre- sented and argued in such a proceeding as in any other legal proceeding. The decision reached in a lawsuit often decides the rights of other parties, who are similarly situ- ated but are not before the court. Accordingly we find many cases where in mandamus proceedings the courts have not hesitated to pass on the constitutionality of a law, in some cases sustaining and in other cases overthrowing the law. 2 But the courts will not consider the constitutionality of a law in a mandamus proceeding at the instance of a ministerial officer. If he should be allowed to question the law of the land, the operations of the government would i People v. Stevens, 2 Abb. Pr. Jumel, 31 La. An. 142 ; Tennessee, (N. S.) 348; Smyth v. Titcomb, 31 etc. R. R. v. Moore, 36 Ala. 371; Me. 272 ; Davis v. Superior Court, Galveston, etc. R. R. v. Gross, 47 63 Cal. 581 ; Maxwell v. Burton, 2 Tex. 428 ; Public School (Com'rs) Utah, 595 ; State v. Hagood, 30 S. C. v. Allegany Co. (Com'rs), 20 Md. 519. 449; State v. Stout, 61 Ind. 143; 2 State v. Steen, 43 N. J. L. 542 ; State v. Compt. Gen., 4 Rich. (N. S.) Humboldt Co. v. Churchill Co. 185 ; Morton v. Compt. Gen., 4 Rich. (Com'rs), 6 Nev. 30; Fowler v. (N. S.) 430: Ex parte Lynch, 16 S. Pierce, 2 Cal. 165 ; McCauley v. C. 32 ; People v. Judge 12th Dist., Brooks, 16 Cal. 11; State v. Barker, 17 Cal. 547; State v. Fairfield Co. 4 Kans. 379 ; State v. Meadows, 1 (Com. Pleas Court), 15 Ohio St. 377 ; Kans. 90 ; State v. McKinney, 5 Russell v. Elliott, 2 Cal. 245 ; State Nev. 194 ; State v. Lean, 9 Wis. 279 State v. Whitworth, 8 Lea, 594 State v. Tappan, 29 Wis. 664 McConihe v. State, 17 Fla. 238 State v. Mitchell, 31 Ohio St 592 v. Harris, 17 Ohio St. 608 ; Madison, Co. v. People, 58 111. 456 ; Cincinnati, etc. R. R. v. Com'rs Clinton Co., 1 Ohio St. 77 ; People v. Batchellor, 53 N. Y. 128 ; State v. Perry Co. Swan v. Buck, 40 Miss. 268 ; State (Com'rs), 5 Ohio St. 497 ; State v. v. Bordelon, 6 La. An. 68; State v. Baltimore Co. (Com'rs), 29 Md. 516. § GO.] DISCRETION OF COURT. 75 be thwarted and great confusion would result. If the law is void, the parties affected thereby can appeal to the courts for their protection. 1 A mandamus will not be issued to compel the granting of a license under a law for a reason which, if valid, shows the law itself to be unconstitutional. 2 § 66. The court will try to make the writ the means of procuring substantial justice. — As the guardian of public rights and in the exercise of its authority to issue this writ, the court will render it, so far as it can, the means of substantial justice, in every case, where there is no other specific legal remedy for a legal right. 3 It is no objection to the issuance of this writ, that it will produce a circuity of action, if the party has a right to the writ. Where a party obtained a judgment for damages against a town and another, he was allowed this writ to compel the town to levy a tax to pay his claim, though the other defendant had property subject to levy. 4 In these writs the courts pass on real contests, enforce or protect specific rights, and redress actual wrongs. 5 The writ will be denied if the ap- plicant fails to show any interest in the action prayed for. 6 A mere creditor of the state cannot obtain a mandamus, and thereby assume to exercise a supervisory control over the treasurer and auditor of the state as to how they con- duct their offices. They owe a duty to the state and not to him, and he cannot supervise their settlements with the various tax collectors. 7 There must be a duty, and a direct right or interest to be enforced. So, if there is not a serious contest, the writ will be refused. 8 The same rule is applied 1 Smyth v. Titcomb, 31 Me. 272; 2 People v. San Francisco (Sup'rs), State v. Buchanan, 24 W. Va. 362 ; 20 Cal. 591. People v. Salomon, 54 111. 39; Bas- 3p e0 ple v. Green Co. (Sup'rs), 12 settv. Barbin, 11 La. An. 672. On Barb. 217. the other hand, an officer whose 4 Palmer v. Stacy, 44 Iowa, 340. duty it was to levy a tax was held 5 Mossy v. Harris, 25 La, An. 623. to be authorized to refuse to make 6 State v. School Fund, 4 Kans. the levy because he correctly con- 261. sidered the law which prescribed 7 State v. Dubuclet, 28 La, An. 85. the tax to be void. State v. Tappan, 8 Mossy v. Harris, 25 La, An. 623. 29 Wis. 664. 76 DISCRETION OF COUET. [§ 66. when the right sought is, or has become, a mere abstract right, the enforcement of which, by change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner. 1 The writ is only issued when it is necessary to secure the ends of justice or some good and useful object. 2 It will not require, that the public good be sacrificed for the advantage of one or more citizens. 3 Where a party sought to compel a superintendent of schools to contract with him to supply the school books to be used in the county schools, in accordance with the' law, his books having been adopted by the proper authorities for use in those schools, the court refused to grant the writ, because other books had been adopted subsequently, though ille- gally, for such use, which had been purchased b}^ the patrons of the schools and were already in use, and the teachers were required to use them. The court decided that public interests were first to be considered, and, in view of the complications and evil consequences likely to arise, it was not considered proper to grant the writ. 4 A mandamus will not be granted, to compel a municipal corporation to pay a claim against it, when all the funds it possesses are required for its ordinary and necessary expenses, nor to compel it to levy a tax in order to pay such claim from the proceeds thereof, when all the money that can be so raised is absolutely required for such expenses. 5 When the lowest bidder for a contract asked for a mandamus to compel its award to him, and the return stated that after the open- ing of the bids the public authorities had materially al- tered the design of the work, and that the public interests required that new bids should be advertised for, the court in its discretion refused to issue the writ. 6 Substantial in- terests 7 or substantial rights - must be involved. The writ i Gormley v. Day, 114 111. 185. & See § 132. 2 George & Co. v. Co. Com'rs, 59 <* People v. Croton Aqueduct Md. 255 ; Booze v. Humbird, 27 Board, 49 Barb. 259. Md. 1. 7 State v. Burbank, 22 La. An. 3 State v. Graves, 19 Md. 351. 298; Hall v. Grossman, 27 Vt 297. * Effingham v. Hamilton (Miss., estate v. Flad, 26 Mo. Ap. 500. April term, 1891), 10 South. R. 39. § 67.] DISCRETION OF COURT. 77 was refused when only two dollars were involved. 1 It will be refused if the effect of it will be merely to encourage petty legislation and to delay other more important inter- ests. 2 The writ will not issue when the sole purpose and effect of it is to relieve the party asking for it from the consequences of his own mistakes or omissions. Where a clerk issued to a purchaser at a tax sale such a tax deed as he requested, a mandamus to make him issue a different deed was refused. Had the clerk made the mistake, the writ might have issued to make him correct it. 3 It is not considered advisable to issue this writ unless substantial, if not final, relief can be given. 4 It has been said, that it must be made to appear that the writ will be effectual, and that the court has jurisdiction to enforce compliance with its commands. 5 Where the end could not be accomplished, the court refused to set any of the machinery in motion. AVhere there was no appropriation to pay a claim, the court refused to compel the attorney-general to give a certificate concerning it to the comptroller, or the comptroller to issue a warrant. 6 Where it appeared that the object sought could have been secured without serious difficulty without the as- sistance of the court, the writ was refused. 7 §67. The writ will be granted only in case of neces- sity. — This writ was designed only to meet emergencies and to prevent a failure of justice. The courts intend, that it shall be reserved for extraordinary occasions and require litigants to use all available means to obtain the enforce- ment of their rights before they apply to the court for the assistance of this writ. Where the trustees of a private corporation refused to sign and publish a certain notice con- cerning the legality of which there was some doubt, the court refused to allow a writ of mandamus to compel them i People v. Hatch. 33 111. 134. 5 People v. Colorado C. R R, 42 2 People v. Hatch, 33 111. 134. Fed. Rep. 638. 3 Klokke v. Stanley, 109 111. 192. « People v. Tremain, 29 Barb. 96. 4 Sherburne v. Horn, 45 Mich. " Harrison v. Simonds, 44 Conn. 160. 318. 78 DISCKETION OF COUKT. [§ 68. to do so, since it was apparent that the object sought — the publication of a proper notice — could have been se- cured without serious difficulty without the aid of the court. 1 The writ will be refused when the respondents admit on the record that they are willing to do the act desired ; 2 but such willingness on the part of the respondent to do the act desired will not suffice to obtain the writ, when there is any substantial defect in the proof of the relator's right, for that must always be clear. 3 If the act sought has al- ready been done, 4 or is voluntarily done after the hearing on the application, 5 the proceedings will be dismissed. § 68. Relator must show good motives and correct ac- tions. — Since this writ is only issued in furtherance of justice, those who seek its assistance must satisfy the court that their application is bona fide and for a proper purpose. 6 It will be refused when the action is collusive and fictitious, 7 when the cause is brought to obtain the opinion of the court on a point of law, 8 to determine a fanciful question, 9 for curiosity 10 or a mere matter of taste, 11 to gratify the spite of a private individual, 12 or when the relator has investi- gated, authorized or approved of the act complained of. 13 When a corporator wished to see the list of stockholders of the corporation to confer with them as to suing to set aside a lease made by the company, the court stated that the writ would not issue at the caprice of the suspicious or curious. 14 An application for a mandamus, to compel the issue of $50,000 worth of stock and the sale of it to a 1 Harrison v. Simonds, 44 Conn. 8 Q. v . Blackwell R. R, 9 D. P. G 318. 558. 2 People v. Dulaney, 96 111. 503. 9 People v. Masonic B. Assoc., 98 3 Bracken v. Wells, 3 Tex. 88. 111. 635. * Johnson v. Ward, 82 Ala. 486; 10 R. v. Staffordshire, 6 A. & E. Electric R R v. Grand Rapids 101. (City), 84 Mich. 257. u State v. St. Louis P. M. Co., 21 5 State v. Railroad, 31 S. C. 609. Mo. Ap. 526. 6 R. v. Liverpool R R , 21 L. J. 12 Hale v. Risley, 69 Mich. 596. Q. B. 284. 13 Hale v. Risley, supra. 7 State v. Burbank, 22 La. An. 14 Com. v. Empire P. R. R, 134 Pa 298. St 237. § 69.] DISCRETION OF COUKT. 79 company for $1, was refused because it looked like fraud. 1 A mandamus was refused to compel the signing of a bill of exceptions, where the prisoner had escaped after con- viction. The courts will not encourage escapes, and facili- tate the evasion of the justice of the state, by extending to escaped convicts the means of reviewing their convic- tions. 2 Where a mandamus was asked to compel a clerk, who had turned over his office to another person, to issue an execution on a judgment, the court stated that in its discretion it was proper to dismiss the proceedings, since they were really brought in order to contest a statute which consolidated two cities. 3 The writ will be refused when the proceedings have been tainted with fraud and corruption 4 or with illegality. 5 Where, under the law, it was the duty of a municipal corporation to pass a by-law grantinc a bonus to a railroad companv in accordance with the vote of the electors of such municipality, a mandamus to compel such action was refused, because it appeared that bribery had been used in the election to control the result in favor of granting the bonus. 6 § 69. Mandamus will he refused to direct an officer's general course of conduct.— By reason of the difficulty attending the effort, and the fact that in such cases there is generally some discretion allowed as to the mode of act- ing the com Is will not grant a mandamus to direct the o-eneral course of conduct of an officer. There are also generally other modes of compelling an officer to do his duty. Often the courts are not well qualified to take the functions of an officer out of his hands and to take upon themselves the direction thereof. Such action would make the writ of mandamus an ordinary proceeding instead of an extraordinary, which it is intended to be. For such rea- sons the police officials, when they disregard or violate their i Madison Co. v. People, 58 111. 456. 4 Com. v. Henry. 49 Pa.St. 530. 2 People v. Genet, 59 N. Y. 80. 5 State v. Timken, 48 N. J. L. 87. 3 Pistorius v. Steinpel, 81 Mich. 6 Langdon, etc. R. R., In re, 45 133. Up. Can. Q. B. 47. 80 DISCRETION OF COURT. [§§ 70, 71. duties, may be required to do a certain act or vacate an improper order, but will not be controlled as to their gen- eral course of conduct. Though they may be ordered to perform a public duty incumbent on them, yet they will not be directed as to the manner of such performance. 1 Aldermen will not be compelled by this writ to attend the meetings of a common council and to perform their gen- eral official duties, which would require a general supervis- ion of the affairs of the city. 2 § 70. Writ refused when delay in acting not unreason- able. — The courts in their discretion will refuse the writ of mandamus when there has been no unreasonable delay by the officer in performing the duty whose execution is sought, but, if there has been such delay, the writ will issue to compel action. The writ has been issued to compel the county commissioners to act with reasonable prompt- ness in passing on the sufficiency of the sureties on the bond of the county recorder elect, 3 and to make a new county pro- ceed to act in determining how much of the debt of an old county, of which it was formerly a part, it was bound to assume. 4 It is too late to apply for the writ when the offi- cers have set themselves in motion and are proceeding to discharge their duties. 5 A mandamus was refused to com- pel the regents of a university to select a professor, because they were investigating the qualifications of various pro- fessors, and had not unreasonably delayed their decision. 6 § 71. Writ will be refused when it will work injus- tice. — The court, acting under its discretion, and endeavor- ing only to enforce justice, will not allow this writ to be used as an instrument to work injustice, 7 nor to introduce i State v. Francis, 95 Mo. 44 ; State 4 Lee Co. v. State, 36 Ark. 276 ; v. Murphy, 3 Ohio C. C. 332 ; State Monroe Co. v. Lee Co., 36 Ark. 378. v. Columbus (Police Board), 19 5 School Directors v. Anderson. Weekly L. Bui. 347. 45 Pa. St. 388 ; State v. Davenport 2 People, v. Whipple, 41 Mich. 548. (City), 12 Iowa, 335. See §113. 6 People v. University (Regents), 3 State v. Belmont Co. (Com'rs), 4 Mich. 98. 31 Ohio St 451. ' State v. Burbank. 22 La. An. 298. § 72.] DISCRETION OF COURT. 81 confusion and disorder. 1 The law required the state treas- urer to issue certain scrip, receivable in payment of taxes and state dues, and required an annual tax to be levied to pay the same. Injunctions had been issued restraining state and county treasurers from receiving such scrip on the ground that it was void. A mandamus against the comp- troller-general to levy the tax required was refused, be- cause it would introduce confusion or disorder. 2 A tech- nical compliance with the law, contrary to its spirit, will not be compelled by this writ. 3 § 72. Writ will be refused when justice will not be sub- served thereby. — Proceeding on the principle that the court will, under this writ, so far as it can, furnish the means of substantial justice, the court will refuse to issue it when justice will not be subserved thereby. "When an appeal from a judgment against a county was taken to a higher court, but such appeal did not act as a supersedeas, a mandamus to compel the county to levy a tax to pay such judgment was refused, because the collection of the judgment was not endangered by delay, and such levy of a tax might work an injustice in case the judgment was reversed, it being admitted that the appeal was taken in good faith. 4 Where a railroad corporation, which had lain dormant for many years, without entering upon any undertaking, applied for a mandamus against a board of public works to compel such board to allow it to enter upon the public streets to construct its road, and it appeared that the state had brought an action against such corpora- tion to dissolve it, and had applied for an injunction to re- strain the prosecution of the mandamus proceeding, which application the court refused on a stipulation by the cor- poration that it would not use the permit, if obtained, to enter upon the public streets till the action to dissolve it i State v. Compt.-Gen., 4 Rich. 3 state v. Phillips Co. (Com'rs), 26 Q. v. Powell, 1 Q. B. 351 ; R v. R. 7 Q. B. 387 ; Cunningham v. Customs (Com'rs), 5 A. & E. 380. Macon, etc. R R, 109 U. S. 446 ; 2 Ottawa Co. (Sup'rs) v. Auditor- State of Miss. v. Durham, 15 Disk Gen., 69 Mich. 1 ; Aplin v. Grand CoJ. 235. T. Co., 73 Mich. 182; People v. < Chance v. Temple, 1 Iowa. 179. Dulaney, 96 111. 503 ; State v. Burke, 5 Mills Pub. Co. v. Larrabee. 78 33 La. An. 498. Iowa, 97. 3 De Bode, In re, 6 Dow]. 776 ; Q. « Ayers, In re, 123 U. S. 443, 503 ; v. Lords Com'rs of the Treasury, L. People v. Dulaney, 96 111. 503. 100 MANDAMUS AGAINST THE STATE. [§ 89. compel the secretary of state to deliver copies of certain laws to the public printer to print, when by subsequent stat- ute the printing thereof is to be let to the lowest bidder. 1 The writ has been denied, as being indirectly a suit against the state: to compel the commissioner of the state general land office to issue patents for the state lands without paying the fees due to the state therefor; 2 to make state officers pay out money in the absence of an appropriation, 3 and of a war- rant ; 4 to compel the auditor-general to pay over to a county treasurer the proceeds of certain taxes collected by him ; 5 and to compel the state treasurer and auditor to audit and pay certain coupons according to a statute after the pas- sage of a subsequent statute, which appropriated the funds to another purpose. fi The courts are not authorized, when a state cannot be sued, to set up their jurisdiction over offi- cers in charge of the public moneys so as to control them as against the political power in their administration of the finances of the state. The officers owe duty to the state alone. They can only act as the state directs them to act, and hold as the state allows them to hold. They can be moved through the state, but not the state through them. 7 Where a mandamus was applied for to compel a county to levy a tax to pay its indebtedness to the state, and in another case to compel a county treasurer to pay over money col- lected by him for the state, the county was not allowed to assert a set-off against the state, because the state could not be sued directly or indirectly. 8 A mandamus was sought to compel the admission to a customary or copyhold estate. Such writs were formerly brought against the steward alone, but the court had ruled that the writ must also run against the lord of the manor in order more effectually to protect his rights. In this case the queen was the lord of i Marshall v. Clark, 22 Tex. 23. 5 Ottawa Co. v. Auditor-Gen., 69 Contra in State v. Barker, 4 Kans. Mich. 1. 379, wherein only the inviolability 6 State v. Burke, 33 La. An. 498. of a contract is considered. "< Louisiana v. Juniel, 107 U. S. 711. 2 Taylor v. HaU, 71 Tex. 206. SAplin v. Van Tassel, 73 Mich. » Carr v. State, 127 Ind. 204. 28 ; Aplin v. Grand Traverse Co. * Weston v. Dane, 51 Me. 461. (Sup'rs), 73 Mich. 182. § 90.] MANDAMUS AGAINST THE STATE. 101 the manor. The relator sought to have the writ run to the steward alone. The court stated that, if the writ were obeyed when issued to the steward alone, the property of the crown would be indirectly affected, and that the crown was as much entitled to protection as a subject. The writ was therefore refused, since it could not issue against the sov- ereign. 1 § C J0. When the writ goes against the officers to en- force a liability of the state. — It does not, however, fol- low that this writ is never issued to compel the performance of a ministerial act connected with the liabilities of the government. There are cases when the writ will so issue, yet they must be where the government itself is liable and is willing to pay its debt, but the officer himself has im- properly refused to act. 2 "Where money was appropriated to pay the arrears of the relator's pension, and the lords of the treasury admitted to him they had the money appropri- ated for him, a mandamus was issued against them to com- pel them to issue an order therefor in the relator's favor. They were officers of the crown, but this was only the case of public officers having control of a sum of money for a particular purpose. 3 When such officers act merely as serv- ants of the crown, amenable alone to the crown, owing no duty to the relator, the writ is refused. Where the lords commissioners of the treasury had received the money to pay the costs of criminal prosecutions, they were not re- quired to pay certain items of a criminal prosecution. 4 Where the amount appropriated to pay a pension was thrown into the general fund applicable to other accounts, and never reached the lords commissioners of the treasury for the purpose of paying that pension, a mandamus to compel them to use it to pay that pension w r as refused. 5 1 Q. v. Powell, 1 Q. B. 351. * Q. v. Lords Com'rs of the Treas- 2 Reeside v. Walker, 11 How. 272 ; ury, L. R. 7 Q. B..387. Chance v. Temple, 1 Iowa, 179. 8 King v. Lords Com'rs of the 3 King v. Lords Com'rs of the Treasury, 4 A. & E. 984. Treasury, 4 A. & E. 286. CHAPTER 8. MANDAMUS TO THE EXECUTIVE OFFICERS OF THE GOVERN- MENT. § 91. The three co-ordinate independent branches of the government 92. Mandamus to the president of the United States. 93. Mandamus to the governor of a state. 94. Mandamus refused against the governor of a state. 95. A case wherein decided that the writ would not issue against a governor. 96. Case where it was decided that a governor is amenable to this writ. 97. Deductions from the decisions. 98. Mandamus to the governor of a state from a federal court. 99. Mandamus to other executive officers. 100. Mandamus to heads of federal executive departments. 101. Cases of mandamus to heads of federal executive departments. 102. Mandamus to the secretaries of state of the various states. 103. Mandamus to a state treasurer. 104. Mandamus to the comptroller of a state. 105. Mandamus to the auditor of a state. 106. Mandamus to commissioner of state land office. § 91. The three co-ordinate independent branches of the government. — In the constitutions of the several states, and in that of the United States, the powers of government are divided between three departments, — the legislative, judicial and executive. One department enacts the laws, another interprets them, and the third enforces them. These departments are co-ordinate branches of the govern- ment, entirely independent of each other, and each is su- preme in its own domain. It then became important to determine to what extent the judiciary department could interfere in the operations of the other departments by the use of the writ of Mandamus. While on the one hand it is claimed that the judiciary must be supreme in the deter- mination of all questions which come before it in the course §§ 02, 93.] MANDAMUS TO EXECUTIVE OFFICERS. 103 of legal proceedings, yet on the other it is asserted that the other departments, being supreme in their spheres of action, cannot be controlled by the judiciary, nor can the judiciary direct them or supervise them in the performance of their duties. § 92. Mandamus to the president of the United States.— At an early period in the history of this country the su- preme court of the United States, which in such cases is the final judicial arbiter, determined that the president of the United States, so far as his powers are derived from the con- stitution, is beyond the reach of any other department ex- cept the impeaching power ; that his powers are political, and in the exercise thereof he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. 1 As a consequence of these de- cisions, no one has ever sought to obtain a mandamus against the president of the United States. § 93. Mandamus to the governor of a state.— The gov- ernors of the various states occupy a position similar to that of the president of the United States, being the heads of the executive departments of their respective states, and the constitutions of the various states generally specifically state, which the United States constitution does not, that the legislative, judicial and executive departments shall be distinct and independent of each other, and that the offi- cers of one department shall execute none of the duties of either of the other departments. As might be expected, the rulings of the various state supreme courts are not in harmony on the question whether a mandamus can be is- sued to a state governor. Those courts which grant the writ against the state governor claim that the judiciary is supreme in its domain, and that therefore the authority of the judiciary is supreme in the determination of all legal questions involved in any matter judicially brought before it; 2 that the law exempts no one from the operation of the iMarbury v. Madison. 1 Cranch, 2 people v. Brooks, 16 Cai 11. 137; Kendall v. United States, 12 Pet. 524, 104 MANDAMUS TO EXECUTIVE OFFICERS. [§ 93. writ of mandamus; that the governor is specially sworn to enforce the laws faithfully ; and that if the writ were re- fused, in many cases persons would be deprived of their rights without the possibility of obtaining any redress. 1 Therefore it has been held that the writ will issue to a governor to perform any ministerial duty. 2 The writ has been issued to a governor to administer the oath of office to officers-elect, and to issue to them their commissions, as being merely ministerial duties, though imposed by the state constitution. 3 The performance of the following duties imposed on the governor by statute was enforced by man- damus, viz. : the commissioning of the clerk of a court, 4 the issuance of a warrant for the attorney-general's salary, 5 the auditing of an officer's claim for expenses in returning a prisoner to the territory, 6 the commissioning of officers chosen by the legislature, 7 the issuance of state bonds to a railroad company, 8 the authentication of a bill in his pos- session as a statute, 9 and the issuance of a proclamation that a bank was authorized to begin business. 10 A duty imposed by statute on a governor, which might as well have been imposed on any other officer, was considered to be minis- terial and enforceable by mandamus, 11 such as the signing of a patent for land. 5 A duty which the governor was re- quired to perform with others, who had equal powers therein with him, has been held not to be a duty growing out of his official position, and therefore the writ would run against him, as in the case of any other party upon whom public i State v. Martin, 38 Kans. 641. 6 Tennessee R. R. v. Moore, 36 2 State v. Martin, 38 Kans. 641 ; Ala. 371. In this state it was sub- Chumasero v. Potts, 2 Mont. 242 ; sequently doubted whether a man- State v. Thayer (Neb., Jan. 2, 1891), damus should issue in any case to 47 N. W. Rep. 704. the governor. Chisholm v. Mc- 3 Magruder v. Swan, 25 Md. 173 ; Gehee, 41 Ala. 192. Groome v. Gwin, 43 Md. 572. *>Harpending v. Haight, 39 Cal. * Bonner v. State, 7 Ga. 473. 189. 5 Cotten v. Ellis, 7 Jones, 545. 10 State v. Chase, 5 Ohio St. 528. 6 Territory v. Potts, 3 Mont. 364. n People v. Brooks, 16 Cal. 11; ■State v. Moffitt, 5 Ohio, 358; State v. Drew, 17 Fla. 67. Baker v. Kirk, 33 Ind. 517. 12 Middleton v. Low, 30 Cal. 596. § 9i.] MANDAMUS TO EXECUTIVE OFFICEKS. 105 duties devolved. Thus he has been required to meet with certain officials and to canvass the votes cast for a certain office. 1 The writ has been issued to control the action of a board of which the governor as such was a member, relative to certain state bonds. 2 § 94. Mandamus refused against the governor of a state. — On the other hand a larger number of state courts hold that the writ of mandamus will never run against the governor of a state, assigning as reasons for such ruling political necessity and public policy, 3 regardless of whether duty be imposed upon him by the state constitution 4 or by statute. 5 It is considered to be immaterial that the duty might have been imposed on another person, since it is im- posed on the governor eo nomine, and its performance is an executive act under the responsibility of his executive sta- tion and under the sanctity of his official oath. 6 The rea- sons assigned for not issuing a mandamus to a governor are, that such action would imply that the executive power is dependent on and inferior to the judiciary; 7 that such 1 State v. Thayer (Neb., Jan. 2, Hartranf t's Appeal. 85 Pa. St 433 ; 1891), 47 N. W. Rep. 704; State v. Directors (Board) v. Wolfley (Ariz.). Foster, 38 Ohio St 599. 22 Pac. R, 383 ; People v. State 2 Gray v. State, 72 Ind. 567 ; Hovey Auditors (Board), 42 Mich. 422; v. State, 127 Ind. 588. The rule People v. Yates, 40 111. 126 ; People adopted in Indiana is, that the writ v. Bissell, 19 111. 229 ; People v. will not run in any case against the Hatch, 33 I1L 9; Bates v. Taylor, governor relative to his action as 87 Tenn. 319 ; State v. Towns, 8 Ga. such. In another state, where it is 360 ; Vicksburg R. R v. Lowry, 61 held that the writ never issues Miss. 102. a ainst the governor, it was re- 4 State v. Governoi', 25 N. J. L. fused against the board of which 331 ; Mauran v. Smith, 8 R I. 192. he was a member. Since he was a 5 People v. Governor, 29 Mich, member of the board by virtue of 320 ; Rice v. Austin, 19 Minn. 103. his office, his acts therewith were 6 Dennett, Petitioner, 32 Me. 508 ; considered to be acts virtute officii Turnpike Co. v. Brown, 8 Baxt and exempt from judicial control. 490; State v. Whitcomb, 28 Minn. State v. Board of Liquidation, 42 50; People v. Governor, 29 Mich. La. An. 647. 320. 3 Hawkins v. Governor, 1 Ark. 7 State v. Governor, 39 Mo. 388 ; 570; People v. Cullom, 100 111. 472; State v. Drew, 17 Fla. 67; Mauran State v. Governor, 39 Mo. 388 ; v. Smith, 8 R L 192. 106 MANDAMUS TO EXECUTIVE OFFICERS. [§ 95. action would tend to bring the two departments into a con- flict, wherein the court would have no ability to enforce its decrees, and such a result should be considered in a case where the right to issue the writ is doubtful, 1 and courts in such matters should not tread on doubtful ground ; 2 that the punishment for disobedience of the writ is by a pro- ceeding for contempt, and since the court cannot deprive the state of its head, therefore it has not the power to issue this writ to the governor; 3 that the state constitution ex- pressly provides that one department shall not exercise any of the duties of either of the other departments, 4 and that the governor has a right to determine for himself what duties he is required to perform, and therefore has a right to determine what duties are discretionary and what are min- isterial, and consequently the courts have no right to deter- mine that matter for him. 5 When a governor voluntarily submitted himself to the jurisdiction of the court, the court proceeded to adjudge the matter; 6 but in another case the court said the governor might submit the case in order to obtain the court's advice, but it disclaimed any right to con- trol his action ; " and in another case it was decided that this exemption from any interference by the judiciary was es- tablished as a protection to the office, and that the incum- bent was not allowed to waive it. 8 § 95. A case wherein decided that the writ would not issue against a governor. — The whole question is well considered in People v. Governor, 29 Mich. 320, where Cooley, J., in delivering the opinion of the court, says : " There is no very clear and palpable line of distinction between those duties of the governor which are political, i Mauran v. Smith, 8 R. I. 192 ; 50 ; Bledsoe v. International R R. State v. Governor, 39 Mo. 388. 40 Tex. 537 ; Iiovey v. State, 127 2 State v. Governor, 25 N. J. L. Ind. 588. 331. 5 State v. Warmoth, 22 La. An. 1 ; * State v. Drew, 17 Fla. 67. Hartranf t's Appeal. 85 Pa. St. 433. 4 State v. Dike, 20 Minn. 363; « State v. Marks, 74 Tenn. 12. Western R R v. De Graff, 27 Minn. ' People v. Bissell, 19 111. 229. 1; State v. Whitcomb, 28 Minn. estate v. Dike, 20 Minn. 363. § 95.] MANDAMUS TO EXECUTIVE OFFICERS. 107 and those which are to be considered ministerial merely ; and if we could undertake to draw one, and to declare that in all cases falling on one side the line the governor was subject to judicial process, and in all falling on the other he was independent of it, we should open the doors to an end- less train of litigation, and the cases would be numerous in which neither the governor nor the parties would be able to determine whether his conclusion was under the law to be final, and the courts would be appealed to by any dissatisfied party to subject a co-ordinate department of the government to their jurisdiction. However desirable a power in the judiciary to interfere in such case might seem from the stand-point of interested parties, it is mani- fest that harmony of action between the executive and ju- dicial departments would be directly threatened, and that the exercise of such power could only be justified on most imperative reasons. . . . The presumption in all cases must be, where a duty is devolved upon the chief executive of the state rather than upon an inferior officer, that it is so because his superior judgment, discretion and sense of responsibility were confided in for a more accurate, faith- ful and discreet performance than could be relied upon if the dut} 7 was devolved upon an officer chosen for inferior duties. . . . Our government is one whose powers have been carefully apportioned between three distinct depart- ments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of ac- tion equally independent. . . . This division is ac- cepted as a necessity in all free government, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. "It is not attempted to be disguised on the part of the relators that any other course than that which leaves the head of the executive department to act independently in the discharge of his duties might possibly lead to unseemly conflicts, if not to something worse, should the courts un- 108 MANDAMUS TO EXECUTIVE OFFICERS. [§ 95. dertake to enforce their mandates and the executive refuse to obey. . . . Orders in these cases can only be en- forced by process for the punishment of contempts of court, and it is conceded that the governor might submit, or not, at his option; so that our decision in effect could be only advisory. And while we should concede, if jurisdiction were plainly vested in us, the inability to enforce our judg- ment would be no sufficient reason for failure to pronounce it, especially against an officer who would be presumed ready and anxious in all cases to render obedience to the law, yet in a case where jurisdiction is involved in doubt it is not consistent with the dignity of the court to pronounce judg- ments which may be disregarded with impunity, nor with that of the executive to place him in position where, in a matter within his own province, he must act contrary to his judgment or stand convicted of a disregard of the laws. " But it is said that this conclusion will leave parties, who have rights, in many cases without remedy. Practically, there are a great many such cases, but theoretically there are none at all. All wrongs certainly are not redressed by the judicial department. A party may be deprived of a right by a wrong verdict or an erroneous ruling of a judge, and though the error may be manifest to all others than those who are to decide upon his rights, he will be without redress. A person lawfully chosen to the legislature may have his seat given by the house to another, and be thus wronged without remedy. A just claim against the state may be rejected by the board of auditors, and neither the governor nor the courts can grant relief. A convicted person may conclusively demonstrate his innocence to the governor and still be denied a pardon. In which one of these cases could the denial of redress by the proper tri- bunal constitute any ground for interference by any other authority? The law must leave the final decision upon every claim and every controversy somewhere, and when that decision has been made, it must be accepted as correct. The presumption is just as conclusive in favor of executive § 96.] MANDAMUS TO EXECUTIVE OFFICERS. 109 action as in favor of judicial. The party, applying for ac- tion which, under the constitution and laws, depends on the executive discretion, or is to be determined by the exec- utive judgment, if he fails to obtain it, has sought the proper remedy and must submit to the decision." § 96. Case where it was decided that a governor is amenable to this writ. — The opposite view of this ques- tion is vigorously maintained in Martin v. Ingham, 38 Kans. 641, where Valentine, J., in delivering the opinion of the court, says: "It is generally supposed that in a republican government all men are subject to the laws, and to the due administration of them, and that no man nor any class of men is exempt. There is no express provision in the constitution, nor in any statute, exempting any member of the executive department, chief or otherwise, from being sued in any of the courts of Kansas, or in any action coming within the jurisdiction of any particular court, civil or criminal, upon contract or upon tort, in quo vjarrant<> 1 habeas corpus, mandamus, or injunction; or from being- liable to any process or writ properly issued by any court, as subpoenas, summonses, attachments, and other writs or process; and if any one of such officers is exempt from all kinds of suits in the courts, and from all kinds of process issued by the courts, it must be because of some hidden or occult implications of the constitution or the statutes, or from some inherent and insuperable barriers founded in the structure of the government itself, and not from the express provisions of the constitution or the statutes. ... In all other cases it is not the rank or character of the indi- vidual officer, but the nature of the thing to be done which governs. No other officer is above the law ; and every other officer, to whatever department he may belong, may be compelled to perform a purely ministerial duty. The objec- tion oftenest urged against the court's exercising control over any of the acts of the governor is that the three depart- ments of government, the legislative, the judicial, and the executive, are separate and distinct, and that each is equal 110 MANDAMUS TO EXECUTIVE OFFICERS. [§ 90. to, co-ordinate with, and wholly independent of, the other. Now it is true, with some exceptions, that the legislature cannot exercise judicial or executive power, and that the executive department cannot exercise legislative or judicial power; but it is not true that they are entirely sepa- rate from each other or independent of each other, or that one of them may not in some instances control one of the others. The most of the jurisdiction possessed by the courts depends entirely upon the acts of the legislature, and the entire procedure of the courts, civil and criminal, is pre- scribed by the legislature. Nearly all the duties of the governor are imposed upon him by the legislature. The legislature may also impeach the governor or any other state or judicial officer mentioned in the constitution. The courts may construe all the acts of the legislature, whether such acts have been signed by the governor or not, and may determine whether they are in contravention of the constitution or not, and if believed to be in contravention of the constitution, may hold them void. The courts may also determine that a supposed member of the legislature is not a member at all, because he represents no district; and may also determine that the legislature cannot consist of more than a certain number of members. Prouty v. Stover, Lieut. Governor, 11 Kans. 235; The State ex rel. v. Tomlin- son, 20 id. 692; The State ex rel. v. Francis, Treas., 26 id. 724. The courts may also pass upon the validity of the acts of the governor. The State v. Ford County, 12 Kans. 441. It is also believed that the courts have power to re- quire the governor to attend a trial as a witness; and if so, then have they not the further power to imprison him for contempt if he disobeys? And if so, would not the courts then interfere with his ability to perform his executive duties? In such a case the state might have to rely upon the lieutenant-governor. No act of the legislature can be- come a law unless it is presented to the governor for his signature and approval. The governor may also convene the legislature whenever he chooses. Also the legislature §96.] MANDAMUS TO EXECUTIVE OFFICERS. HI and the courts are able to perform their respective duties unmolested, because of the known power of the governor to call out the militia to aid and protect them in doing so if necessary. It will be seen from the foregoing that the different departments of the government are not independ- ent of each other. The power last mentioned, however, is also invoked as an argument against the court's attempting to control any act or acts of the governor. It is said that if the governor opposes the order or judgment of the court, it cannot be enforced ; for it is said that he has the entire control of the militia, But are the courts to anticipate that the governor may not perform his duties? Should not the courts rather presume that when a controversy is deter- mined by the courts — the only tribunals authorized by the constitution or the statutes to construe the laws, and to determine controversies by way of judicial determination — the governor, as chief executive officer of the state, would see that such determination should be carried into full effect? Such would be his duty, and no one should suppose that he would fail to perform his duty, when his duty is made manifest by a judicial determination of the courts. No department should ever cease to perform its functions for fear that some other department may render its acts nugatory, or for fear that its acts may in some manner affect the conduct or status of some other department. . . . Each department should scrupulously perform the duties peculiarly intrusted to its own department without refer- ence to how the same might affect other departments. Besides, if this argument from the governor's control of the militia were carried to its full extent, it would prevent any court from ever issuing any subpoena or any other writ or process to the governor, or from ever arresting him or ordering his arrest for any assault or battery, or for any- thing else, because the governor might in any such case re- fuse to obey the writ or the order of the court, and might call on the militia to assist him in his resistance. ... It will thus be seen that while each of the different depart- 112 MANDAMUS TO EXECUTIVE OFFICERS. [§ 97. merits of the government is superior to the others in some respects, yet that each is inferior to the others in other respects; and it is always difficult to compare things which are wholly unlike each other, or to call them equal. Each department in its own sphere is supreme. But each out- side of its own sphere is weak and must obey. ... If an applicant for relief on the ground of the refusal to exer- cise or the wrongful exercise of ministerial power by the governor has no leinedy in the courts, then he has no remedy at all. The remedy of impeachment, and the remedy of subsequent elections, suggested by some of the courts, may be a remedy to the public in general, but it cannot be a remedy to an individual sufferer for injuries or loss in person or to his property." § 97. Deductions from the decisions.— The weight of authority is evidently in favor of the proposition that the writ of mandamus will never lie from a state court to the governor of the state, but such proposition can hardly be considered to be established on the ground of constitutional prohibition, and it will be perceived, when we consider the riffht of courts to issue this writ to the heads of the vari- ous branches of the executive department, that the constitu- tional inhibition is maintained in only two of the states. But it seems to be impossible to preserve an isolation between the three departments. To do so all the officers and agents of the executive department should be free from all judicial control. But the courts are continually restraining and di- recting the actions of the executive officers, and they often nullify the action of the governor, which is practically an interference in his domain. The courts have interfered with the actions of the officers of the legislative department by requiring them to make certain certificates, to open and publish before the assembled legislature the returns of the election, and by deciding in a collateral proceeding a mem- bership in the legislature, when the legislature has failed to act. In a mandamus proceeding to compel the secretary of state to deliver the election returns to the speaker of the § 97.] MANDAMUS TO EXECUTIVE OFFICERS. 113 house of representatives for presentation to the latter, the court decided which of two bodies, each claiming to be the house of representatives, was the legal house. 1 It should be stated that all the courts which have so ruled, except one, which does not seem to have been called on to act, have maintained the right to issue a mandamus to the governor of the state. The courts have interfered in the question of the governorship of the state. It has been said, though rather as an obiter dictum, that he who is entitled to the office of governor of a state may obtain it by the writ of mandamus; 2 but in two cases the courts have interfered by the writ of quo warranto and have turned out the incumbents to seat the parties whom they considered to be entitled to the office. 3 For such action the plea of necessity may be urged, but it is in the highest degree an interference with a co-ordinate branch of the government. It attacks its very existence, as represented by the person who is executing its functions. The same may be said when the courts under- take to decide (and why not directly as well as indirectly?) what bodies of men constitute the legislature. If neces- sity is the plea for such action, who is to determine the question when each of two bodies claims to constitute the highest judicial tribunal? A constitutional conven- tion vacated the seats of all the judges of the supreme court and authorized the governor to fill the vacancies thus created, which he proceeded to do. The old court claimed that the action of the constitutional convention was void and undertook to discharge their official functions, when the governor removed them by force and installed his ap- pointees, whose rights were never questioned afterwards. 4 Fortunately such cases seldom arise, yet they show that the courts cannot cope with all the difficulties, and if they cannot act in some cases it cannot follow that they are necessarily the parties to pass on other cases, where 1 See § 107. Wis. 567 ; State v. Boyd (Neb., May 5, 2 Goff v. Wilson, 32 W. Va. 393. 1891), 48 N. W. Rep. 739. 3 Attorney-General v. Barstow, 4 4 Preface to 35 Mo. Reports. 8 114 MAm)AMUS TO EXECUTIVE OFFICERS. [§ 98. political questions of a similar nature are involved, namely, the independence of the various co-ordinate branches of the government. "When it is remembered that the use of this writ is the outgrowth of necessity in order to meet the de- mands of justice, and its issuance is largely dependent upon the discretion of the court, its use to determine the legality of a body claiming to be a legislature seems questionable, while its issue to compel an action b} T the governor, on ac- count of the uncertainty as to whether it will be obeyed, and the possibilities of a public scandal produced thereby, would seem to be entirely inappropriate. § 98. Mandamus to the governor of a state from a fed- eral court. — "What has been said relative to the issuance of a mandam us from a state court to the governor of a state does not apply when the writ is issued from a federal court. The United States in its domain is superior to the states, and in enforcing its laws deals with all persons as individuals, owing obedience to its authority. Nothing can be interposed between the individual and the obligation he owes to the constitution and laws of the United States, which can shield or defend him from their just authority, and the extent and limits of that authority the United States, by its judiciary, interprets and applies for itself. If, therefore, an individual, acting under the assumed author- ity of a state as one of its officers, and, under color of its laws, comes into conflict with the superior authority of the United States, he is stripped of his representative charac- ter and subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States. 1 A governor, as a mem- ber of a board, has been required by injunction to conform in its actions to a state law : the court held that the writ of mandamus or that of injunction would lie in such cases, and that therein the two writs were somewhat correlative/ i Ayers, In re, 123 U. S. 443. Comb, 92 U. S. 531 ; Rolston v. Mis- 2 Board of Liquidation v. Mc- souri Fund Convrs, 120 U. S. 390. § 99.] MANDAMUS TO EXECUTIVE 0FFICEBS. 115 To evade the performance of his duty, an officer cannot plead an unconstitutional law of the state, since the federal court will treat such law as null and void, and it will not prevent the issuance of the proper writ. 1 With the excep- tion of a few cases of original jurisdiction of the supreme court, a state cannot be sued in the federal courts without its consent, and therefore a writ of mandamus cannot be maintained when in effect it is a suit against the state. Therefore, when a state has contracted to dispose of its taxes in a certain way, but subsequently passes a law mak- ing a different disposition thereof, it cannot be compelled to carry out such contract by requiring its officers to dis- pose of such funds according to such contract so long as such funds are in the possession of the state, and if such officers in their relations thereto are not trustees thereof but mere agents of the state. 2 § 99. Mandamus to other executive officers.— The ques- tions of political necessity and public policy, which present themselves when an application is made to coerce a gov- ernor of a state, do not exist in the case of any other offi- cer. The courts, therefore, do not decline to issue this writ to any other officer to compel the performance of a mere ministerial duty. Apparently the only courts holding other- wise are those of Minnesota and Texas, which base their decisions on their constitutional provisions that the three co- ordinate branches of government shall be entirely separate. 3 Where, however, the heads of departments or any other officers act in any transaction as the political or confidential agents of the president of the United States, or of a state governor, and subject to the will of their principals, their acts therein are the acts of their principals, and no writ of mandamus will lie to control them in any manner in such transaction. 4 Inasmuch as it is impossible to formulate any i Board of Liquidation v. Mc- 3 State v. Dike, 20 Minn. 363 : State Comb, 92 U. S. 531, 541 ; Poindexter v. Braden, 40 Minn. 174 ; Bledsoe v. v. Greenhow, 114 U. S. 270. International R R, 40 Tex. 537. 2 Louisiana v. Jumel, 107 U. S. 711. 4 Marbury v. Madison, 1 Cranch, 116 MANDAMUS TO EXECUTIVE OFFICEKS. [§ 100. sensible distinction applicable to all cases between discre- tionary and ministerial acts, the refinements and mere verbal distinctions being such as to leave an almost unlim- ited discretion to the courts, 1 it may be well to call atten- tion to a number of decisions in cases of mandamus to executive officers as being the best guides in elucidating the distinction made in the courts. § 100. Mandamus to heads of federal executive depart- ments. — The head of an executive department of the fed- eral government will never be interfered with in the ordi- nary discharge of his official duties, 2 even when those require an interpretation of the law. 3 The writ has been refused : to compel the interior department to issue a patent for public lands ; 4 to compel the secretary of the navy to allow a widow, to whom a pension had been granted under a spe- cial act of congress, and who had applied for and received a pension under the general law, the pension under the spe- cial law, the secretary denying her right to take both pen- sions ; 5 to compel the commissioner of patents to re-issue a patent to an assignee thereof, he having decided that he was not such an assignee as to be entitled thereto under the law ; 6 to compel the secretary of the navy to pay his salary to a person who had been an officer in the Texas navy, and who claimed, by virtue of the transfer of that navy to the United States, to be an officer in the United States navy; 7 to reverse the decision of the commissioner of pensions in refusing an increase of pensions; 8 to make the secretary of the treasury pay the amount allowed the relator by other 137; State v. Governor, 25 N. J. L. 200; United States v. Lynch, 137 331 ; Hawkins v. Governor, 1 Ark. U. S. 280. 570. 4 Secretary v. McGarrahan, 9 1 Decatur v. Paulding, 14 Pet. 497. Wall. 298. 2 Reeside v. Walker, 11 How. 272 ; 5 Decatur v. Paulding, 14 Pet. 497. United States v. Black, 128 U.S. 6 Commissioner of Patents v. 40 ; United States v. Boutwell, 3 Whiteley, 4 Wall. 522. MacArtbur, 172; Kendall v. United "Brashear v. Mason, 6 How. 92. States, 12 Pet. 524 ; United States v. 8 United States v. Black, 128 U. S. Guthrie, 17 How. 284. 40. a United States v. Rauni, 135 U. S. § 101.] MANDAMUS TO EXECUTIVE OFFICEES. 117 departments in satisfaction of his claim, 1 and to compel the canceling of an entry of public land. 2 "Where money is re- ceived by the secretary of state of the United States from a foreign nation under an agreement between the two nations, which money is in satisfaction of claims of its citi- zens against such nation, which are urged by the United States, a mandamus will not lie at the instance of the claim- ant to compel the secretary to pay such money to him, since in such matters by law the secretary acts in such manner as the president may direct, and he must be pre- sumed to be acting under such directions. 3 Where money was paid to the secretary of state by a foreign government upon an award made in accordance with a treaty, in satis- faction of a private claim against such government, which money, by act of congress, the president, if he was of the opinion that the merits of such claim should be re-exam- ined, was authorized to withhold from the claimant till such re-examination was had, or till congress otherwise ordered, a mandamus to compel the secretary of state to pay the money to the claimant was refused. So long as the political branch of the government had not lost its control over the sub- ject-matter by final action, the claimant was not in a position, as between himself and his goverment, to insist on the con- clusiveness of the award as to him. So long as the political department had not parted with its power over the money, the intervention of the judicial department could not be invoked. 4 § 101. Cases of mandamus to the heads of federal ex- ecutive departments. — On the other hand, when the duty is merely ministerial, or if the officer refuses to act at all in the case of a duty involving discretion, the writ will issue to such head of an executive department of the federal government, in the one case to perform the act, and in the i United States v. Boutwell, 3 3 United States v. Bayard, 15 Dist. MacArthur, 172. CoL 370. 2 Gaines v. Thompson, 7 Wall * United States v. Blaine, 139 U. S. 347. 306. 118 MANDAMUS TO EXECUTIVE OFFICERS. [§ 102. other to proceed to consider the matter. 1 The writ has been issued : to compel the secretary of the interior to deliver a patent for land which had already been prepared, signed, sealed, countersigned and duly recorded ; 2 to compel the postmaster-general to credit the account of a mail con- tractor with certain allowances, which had been properly determined, as provided by statute ; 3 to compel the com- missioner of patents to prepare and seal a patent and pre- sent it for signature to the secretary of the interior in a case of interference, when he had decided that the patent ouo-ht to issue, but withheld it on account of a reversal of his decision by the secretary of the interior, whereas, in law, no appeal was allowed to the secretary ; 4 and to com- pel the commissioner of patents to give a copy of an abandoned or rejected application for a patent upon a rea- sonable suggestion of the necessity thereof for purposes of evidence. 5 It is maintained that, as a general rule, when a superior tribunal has rendered a decision binding on an in- ferior, it becomes the ministerial duty of the latter to obey and carry it out. So when a subordinate officer is over- ruled by a superior, his duty to obey such decision is a ministerial duty, which may be enforced by a mandamus* "When an application for an increase of pension was refused by the commissioner of pensions, but his decision was re- versed by the secretary of the interior, a mandamus was issued to compel the commissioner to allow the increase. 7 § 102. Mandamus to the secretaries of state of the va- rious states. — In the various states (except in Texas and 1 United States v. Guthrie, 17 2 United States v. Schurz, 102 How. 284 ; Mai bury v. Madison, 1 U. S. 378. Cranch, 137 ; United States v. 3 Kendall v. United States, 12 Raum, 135 U. S. 200 ; Carrick v. Pet 524. Lamar, 116 U. S. 423; Bayard v. < Butterworth v. Hoe, 112 U.S. United States, 127 U. S. 246; 50. United States v. Black, 128 U. S. 5 United States v. Hall, 18 Dist 40 ; Kendall v. United States, 12 Col. 14. Pet. 524; United States v. Blaine, 6 United States v. Raurn, 135 U. S. 139 U. S. 306; United States v. 200. Windom, 137 U. S. 636. 1 Miller v. Black, 128 U. S. 50. § 102.] MANDAMUS TO EXECUTIVE OFFICERS. 119 Minnesota) it seems never to have been decided that all the acts of the head of a department in the discharge of the ordinary duties of his office are beyond the reach of a mandamus, but the decisions have been directed entirely to the nature of the act itself whose performance was sought. When an act to be done by the secretary of state is ministerial, the writ of mandamus is proper to compel its performance. 1 This writ has been issued : to compel the secretary of state to audit and allow an account against the state, and to draw a warrant therefor on the state treas" urer ; '-' to cause certain acts of the legislature to be pub- lished in certain papers for a certain period of time, as provided by the state constitution ; 3 to furnish the relator with a copy of the laws for publication in a newspaper ac- cording to statute ; 4 to attest and record the commission of an officer, which the governor had signed and sealed ; 5 to compute the election returns filed with him, and to give a certificate thereof to the party having the highest num- ber of votes ; 6 to furnish a copy of the laws to the person w T ho had the contract to print them ; 7 to revoke the license of a foreign insurance company to do business in the state, for obtaining the removal of a suit against it to a federal court contrary to the agreement made by it when it pro- cured its license ; 8 to include in the notice of election an 1 State v. Secretary of State, 33 to promulgate laws or to make Mo. 293 ; Free Press Ass'n v. Nichols, others publish them, and that re- 45 Vt. 7 ; State v. Hayne, 8 Rich, dress was to be found in the leg- (N. S.) 367; Black v. Auditor of islative or executive departments. State, 26 Ark. 237 ; People v. State State v. Deslonde, 27 La. An. 71. Auditors (Board), 42 Mich. 422 ; * State v. Harvey, 14 Wis. 151. State v. Warner, 55 Wis. 271 ; Peo- 5 Hawkins v. Governor, 1 Ark. pie v. Governor, 29 Mich. 320 ; Haw- 570 ; State v. Wrotnowski, 17 La. kius v. Governor, 1 Ark. 570. An. 156. 2 State v. Warner, 55 Wis. 271. 6 Pacheco v. Beck, 52 CaL 3 ; State 3 State v. Mason (La., April 27, v. Lawrence, 3 Kans. 95 ; State v. 1891), 9 South. R 776. In an earlier Rodman, 43 Mo. 256. case of a similar nature the writ 7 State v. Barker, 4 Kans. 379. was refused. The court then de- 8 State v. Doyle, 40 Wis. 175; cided, without arguing the ques- State v. Doyle, 40 Wis. 220. tion, that the courts have no power 120 MANDAMUS TO EXECUTIVE OFFICERS. [§ 103. officer omitted by him, 1 and to allow a party, authorized by the legislature, to complete certain indexing, and to allow his clerks access to, and the use of, his records for that pur- pose. 2 § 103. Mandamus to a state treasurer.— A mandamus lies to make a state treasurer pay warrants drawn on him by the proper officer, 3 provided he has funds in his hands appropriated by law to that purpose. 4 Unless the legisla- ture has made the proper appropriation, the writ will not lie, because the state cannot be sued indirectly. 5 Even though there is an appropriation, but no funds are on hand, the writ will not be granted, with an order to pay the claim when he has funds, since that would give a preference. 8 The writ will not issue to compel the state treasurer to act in disobedience of the instructions of the legislature, since the legislature has supreme authority in such matters, and state officers cannot be required to act contrary to the or- ders of the state. The writ of mandamus will not lie : to compel the state treasurer to pay a warrant of the auditor, when the legislature has forbidden its issuance ; 7 to compel the fund commissioners to pay state bonds in gold or silver, when the legislature has by joint resolution instructed that the payment shall be made in legal currency ; 8 to pay war- rants issued under a law by the governor, when he has been ordered by a resolution of the legislature not to pay them, which has been approved by the governor. 9 In order to compel obedience to a statute by the state treasurer, a mandamus has been issued ordering him : to issue certificates of indebtedness, 10 to issue state bonds to a railroad com- i People v. Carr, 86 N. Y. 512. 6 Weston v. Dane, 51 Me. 461. 2 Pinckney v. Henegan, 2 Strob. 6 State v. Dubuclet, 26 La. An. 250. 127. Contra: People v. Sec. of 3 Selma, etc. RR,Ex parte, 46 Ala. State, 58 111. 90. 423 ; State v. Bordelou, 6 La An. 7 Bayne v. Jenkins, 66 N. C. 356. 68 ; State v. Hickman, 10 Mont 8 State v. Hays, 50 Mo. 34. 497. 9 Fletcher v. Renf roe, 56 Ga. 674. * Hommerich v. Hunter, 14 La. 10 State v. Cardozo, 5 Rich. (N. S.) An. 225. 297. § 104.] MANDAMUS TO EXECUTIVE OFFICERS. 121 pany, which had complied with the law entitling it thereto, 1 arid to stamp state bonds in the hands of private parties. 2 This writ has been issued to a state treasurer to compel him to surrender to a municipality its bonds issued in aid of a railroad company, but subsequently adjudged to be invalid ; 3 in such case this proceeding is considered to be the only remedy which is admissible, because a sheriff with a writ of replevin should not be allowed to intermeddle with public papers. 4 "When an application is made for a mandamus to compel the state treasurer to pay a claim audited and allowed by the secretary of state, the court can examine into the question of the legality of the claim, but, if it is legal, the decision of the secretary as to the amount thereof is conclusive. 5 § 104. Mandamus to the comptroller of a state. — As being a mere ministerial act a mandamus has been issued to the state comptroller: to audit the account of a member of the legislature ; 6 to issue a warrant to relator for money due him under a contract relating to the state prison, when the contract specified the amount due each month and the legislature had appropriated the money therefor ; 7 to draw a warrant for a judge's salary ; 8 to allow the district at- torney to inspect and copy his records, relating to the re- turns made to him concerning the proceeds of assessments, it being the district attorney's duty to bring suit for de- linquent taxes ; 9 and to issue his warrant to the paymaster of a regiment for the sum allowed by law to each company, when the facts are admitted and the only question involved is one of law. 10 If the comptroller believes the party is not an officer de jure, he may refuse to issue his warrant for 1 Northwestern, etc. R R v. Jen- 5 State v. Hastings, 10 Wis. 518. kins, 65 N. C. 173. 6 Fowler v. Pierce, 2 Cal. 165. 2 State v. Burke, 33 La An. 969. 7McCauley v. Brooks, 16 CaL 11. 3 People v. Treasurer, 23 Mich. 499; 8 Turner v. Melony, 13 Cal. 621. People v. State Treasurer, 24 Mich. » State v. Hobart, 12 Nev. 408. 468. io state v. Anderson, 52 N. J. L» 4 People v. State Treasurer, 24 150. Mich. 468. 122 MANDAMUS TO EXECUTIVE OFFICERS. [§ 105. such officer's salary, and wait for the decision of the court in a mandamus proceeding. 1 An answer that such person is ineligible to the office, when he has been inducted into office and has a commission therefor, is invalid, since in this pro- ceeding the title to an office cannot be tried. 2 When the comptroller-general is requested to levy a tax to pay the interest on the public debt, if he has a reasonable doubt as to the existence of a fact, upon which the duty of perform- ance depends, he may make the party prove such fact in a proper judicial proceeding, as in mandamus? The comp- troller must be specifically and specially authorized by law to perform the duty whose enforcement is sought. When the law so provided, he was ordered to draw his warrant in payment of an officer's salary, 4 and to pay for supplies fur- nished to the state. 5 He was not required to draw his warrant to pay the salary of the salt commissioner, because the law did not specifically and specially make it his duty to do so. 6 When the statute fixes the salary of an officer and directs that it be paid out of the state treasury, it is not necessary that there should be an annual appropriation therefor, and the comptroller will be required to issue his warrant to pay it. 7 In any matter where the comptroller is authorized to exercise his judgment and discretion, the writ of mandamus will of course not lie ; as to correct an error in a tax duplicate; 8 or to adjust and settle public ac- counts, when he is given exclusive power in the premises. 9 § 105. Mandamus to the auditor of a state. — The writ of mandamus also lies to compel a state auditor to perform a mere ministerial act. 10 The law having prescribed the duty, i State v. Gamble, 13Fla. 9. (Idaho, Feb., 1891), 25 Pac. Rep. 2 Turner v. Melony, 13 Cal. 621. 1092; State v. Hickman, 10 Mont. 3 Morton v. Comptroller-General, 497. 4 Rich. (N. S.) 430. 8 Lynch, Ex parte, 16 S. C. 32. i Humbert v. Dunn, 34 Cal. 57. 9 Green v. Purnell, 12 Md. 329; 5 Proll v. Dunn, 80 Cal. 220. Towle v. State, 3 Fla. 202. eChisholm v. McGehee, 41 Ala. "State v. Warner, 55 Wis. 271; 192. Free Press Assoc, v. Nichols, 45 7 Nichols v. Comptroller, 4 Stew. Vt. 7. & Port. 154; Gilbert v. Moody § 105.] MANDAMUS TO EXECUTIVE OFFICERS. 123 this writ lias been issued to a state auditor to compel him : to draw a warrant for the salary of an officer, when the amount thereof was fixed by law ; ' to transfer and fund certain state bonds ; 2 to issue his warrant for $2,500 in favor of a military command ; 3 to publish the semi-annual state- ment of foreign insurance companies doing business in the state in two daily papers having the largest circulation, but leaving with him the selection; 4 to advertise for bids for the public printing; 5 to issue his warrant for the amount due for property received by the state on a con- tract made with it ; 6 to issue notes of circulation to a bank which had properly organized and applied for them ; 7 and to draw a wan-ant for interest on state bonds, though the wrong party had already been paid the interest on the same bonds. 3 Where, however, the auditor is in doubt about the legality of issuing his warrant to the applicant, he may refuse sometimes to issue it, out of abundant caution and in order to obtain the opinion of the court. 9 When the law has ap- pointed another officer or tribunal to examine and certify a claim, the auditor's duty in drawing the warrant therefor is purely ministerial. 10 A recorder of brands and marks was authorized by law to have certain lists printed at the pub- lic expense ; this implied a right to make a contract and fix the price ; the auditor was held to have no discretion, and was required to issue his warrant for the amount fixed by the contract. 11 When the claim must be established before the auditor himself, he will not be required to draw a warrant i Black v. Auditor, 26 Ark. 237 ; 5 People v. Auditors (State), 42 Bryan v. Cattell, 15 Iowa, 538 ; State Mich. 422. v. Clinton, 28 La. An. 47 ; Fowler v. 6 People v. Secretary of State, 58 Pierce, 2 Cal. 165 : Swan v. Buck. 111. 90. 40 Miss. 268 ; Reynolds v. Taylor, » Citizens' Bank v. Wright, 6 Ohio 43 Ala. 420. St 318. 2 Robinson v. Rogers, 24 Grat estate v. Smith, 43 111. 219. 319 9 Bryan v. Cattell, 15 Iowa, 538. 3 State v. Bordelon, 6 La. An. 68. N>Lindsey v. Auditor of Ky., 3 i Holliday v. Henderson, 67 Ind. Bush, 231 ; Danley v. Whiteley, 14 103. Ark - 687 - ii Fisk v. Cuthbert, 2 Mont. 593. 12 i MAXDAMCS TO EXECUTIVE OFFICEKS. [§ 105. for its payment, unless it is shown that the claim has been properly established before him. 1 There must, however, be an appropriation by the legislature to cover such claims, before the auditor can be required to issue a warrant on the state treasury for their payment. 2 The auditor may also show, in justification of his refusal to issue his warrant, that the appropriation is exhausted, or that the claim exceeds the revenue of the year from which it is exigible. 3 When the money to pay that claim has been appropriated by the legislature and the amount thereof has been ascertained in the manner prescribed by law, a mandamus will lie to com- pel the state auditor to issue a warrant on the state treas- ury for its payment. 4 The fact that there is no money at the time does not concern the auditor and does not prevent the issuance of the writ. 8 The writ will not lie to estab- lish in this mode unliquidated claims against the state. In such cases relief must be sought at the hands of the legis- lature. 6 Where, however, the power is given to an audi- tor to settle claims against the state, an account settled and certified by one auditor cannot be altered by his successor, and any corrections made by him are merely void, and a writ of mandamus will not issue to compel him to strike them out. 7 It sometimes occurs that an application is made to the auditor to pay the salary or settle the account of an officer whose title to his office is in dispute. In such cases the auditor must recognize the title of the person who holds the commission, 8 and is also the de facto officer. 9 When i Swarm v. Work, 24 Miss. 439. See § 126. Contra: People v. 2 State v. Jumel, 31 La. An. 142 ; Tremain, 29 Barb. 96 ; Gilbert v. State v. Kenney, 9 Mont. 389 ; Carr Moody (Idaho, Feb., 1891), 25 Pac. v. State, 127 Ind. 204; State v. Hoi- Rep. 1092. laday, 65 Mo. 76 ; Evans v. McCar- « Swan v. Buck, 40 Miss. 268 ; thy, 42 Kans. 426. Rice v. State, 95 Ind. 33. 3 State v. Jumel, 30 La. An. 339. ? State v - Brewer, 61 Ala. 318. < Rice v. State, 95 Ind. 33 ; State 8 State v. Moseley, 34 Mo. 375 ; v. Kenney, 9 Mont. 223 ; Swan v. Winston v. Moseley, 35 Mo. 146 ; Buck, 40 Miss. 268. State v. Clark, 52 Mo. 508. 5 State v. Clinton, 28 La. An. 47 ; 9 State v. Draper, 48 Mo. 213. Evans v. McCarthy, 42 Kans. 426. § 106. MANDAMUS TO EXECUTIVE OFFICERS. 125 such difficulty occurs relative to a membership of the legis- lature, and the legislature itself has failed to act in the mat- ter, the auditor must recognize the person who holds the certificate of election issued by the legally instituted can- vassing board of the election. 1 Since the auditor can only be required to perform a duty imposed upon him by law, he cannot be required to issue his warrant, if the legisla- ture has altered the law so that it is no longer his duty to do so. "Whether the state has by its legislation impaired the obligations of its contract with the relator cannot be inquired into in a mandamus proceeding wherein the state is not a party, since the auditor has no interest in that ques- tion. 2 'When the duty imposed on the auditor involves judgment and discretion, as whether a foreign insurance company should have a license to do business in the state, the writ will issue only in a case of clear and wilful disre- gard of duty. 3 § 106. Mandamus to commissioner of state land office.— A writ of mandamus will lie to the commissioner of the state land office, when nothing remains to be done but the enforcement of a legal duty, 4 as to issue patents to a com- pany for lands selected for it as provided by law, 5 or to issue patent certificates for swamp land. 6 It should be re membered that Minnesota and Texas, but apparently no other state, refuse to issue this writ to the chief officer of any executive department of the state, 7 though it is admit- ted that in the latter state it has been issued to the com- missioner of the general land office ; but this has occurred only in reference to patents for land, and is claimed to be an exception to the rule. 8 i State v. Kenney, 9 Mont 389. 6 Hempstead v. Underhill, 20 Ark. 2 State v. Clinton, 27 La. An. 429. 337. 3 State v. Benton, 25 Neb. 834; ' State v. Whitcomb, 28 Minn. 50 ; Western H. I. Co. v. Wilder, 40 Chalk v. Darden, 47 Tex. 438. Kans. 561. 8 Galveston, etc. R. E. v. Gross, 4 Webster v. Newell, 66 Mich. 503. 47 Tex. 428. » People v. Com'r S. Land Off., 23 Mich. 270. CHAPTER 9. MANDAMUS TO THE LEGISLATIVE DEPARTMENT. § 107. The legislative department is one of the three co. ordinate branches of the government, and all the argu- ments advanced concerning the coercion of one department by another, already referred to in the discussion concern- ing the issuance of a mandamus against the governor, are applicable here. Yery few cases are to be found in the reports where the courts have been called upon to inter- fere in legislative matters. The law required the speaker of the legislature to certify to the comptroller the compen- sation due to a member of the legislature, and a writ of mandamAis was allowed to compel him to do so. 1 The law specified that the election or appointment of all officers, elected or appointed by the legislature should be certified by the speakers of both houses thereof, and they were com- pelled so to do. 2 The law required the legislature, assem- bled in joint session, to open and publish the returns of the election of the executive state officers. The speaker of the house, to whom such returns had been sent sealed and unopened, refused to open and publish them, claiming that contests had been commenced relative to the election of some of those officers ; that evidence had been taken in the contests, and that such contests must be first heard and determined. The court considered the duty of the speaker in the premises to be merely ministerial, and that the al- lowance of the claim of the speaker, that the other two state departments were independent of any control by the judiciary, would be attended with most disastrous results ; that the elected officers would have no remedy, if the i Pickett, Ex parte, 24 Ala. 91. 2 State v. Moffitt, 5 Ohio, 358. § 107.] MANDAMUS TO LEGISLATIVE DEPAKTMENT. 127 proper tribunal would not canvass the returns nor certify the result; that elections would become uncertain in re- sult, and doubly so as to the result declared, and that the payment of the state's indebtedness, even after legislative appropriation, would be absolutely dependent upon the vacillating will of approving and disbursing officers. The speaker was ordered to open and publish the returns. 1 A mandamus was applied for to compel the speaker of the house of representatives to send a certain bill to the senate, which, it was claimed, had passed the house. The speaker had decided that the bill had not passed, and the house had sustained him on appeal. The court stated that the writ lies only for the performance of a ministerial duty, but held that in this matter the house had exclusive jurisdic- tion, and the writ was refused. 2 When there is a dispute as to which of two persons has been elected to the legisla- ture, the courts will not consider the question, if it is shown that a contest relative thereto is pending in that body. If no contest is pending, and the court is called upon to en- force collateral and incidental rights belonging to a mem- ber of the legislature, as to compel the state auditor to audit and settle his accounts, it will accept the certificate of election, issued by the legally constituted canvassing board, as decisive of the question of membership. 3 The clerks of the respective houses of a territorial legislature were required by law to file the minutes of their proceed- ings with the secretary of the territory. The speaker of one of the legislative bodies claimed that the minutes so filed contained, besides the proper records, the proceedings of two illegal bodies, which professed to be the legislature, and that such proceedings took place after the legal period for the session of the legislature had expired, and after the legislature had adjourned sine die. He sought to have the court take the minutes as filed in its control, cause them to be corrected, and then to be refiled with the secretary of i State v. Elder (Neb., Jan. 14, 2 Echols, Ex parte, 39 Ala. 698. 1891), 47 N. W. Rep. 710. 3 State v. Kenney, 9 Mont. 389. 128 MANDAMUS TO LEGISLATIVE DEPARTMENT. [§ 107. the territory as the only true minutes, and to order the im- proper minutes to be expunged. The court said that one branch of government could not encroach on the domain of another, and that it was not the function of a court to make up the records of the proceedings of legislative bodies. 1 For the reasons just given the secretary of a territory was not required to record a report made by the president of the council of the territorial legislature as a part of the proceedings of the council, nor to expunge from the records a part of the report of the proceedings of the council made by its clerk. 2 "Where by mandamus it was sought to compel the secretary of state to deliver the returns of the election to the speaker of the house of representatives to be laid before that body, and the return of the secretary of state stated that he had delivered the returns to the speaker of the house, who was another person, presiding over another body, the court determined which body was the legal house of representatives, and that a mandamus was proper for the purpose desired. 3 1 Burkhart v. Reed (Idaho, March 11, 1889), 22 Pac. Rep. 8. Affirmed 11, 1889), 22 Pac. Rep. 1. This case on appeal, 134 U. S. 861. was affirmed on appeal, 134 U. S. 3 State v. Hayne, 8 Rich. (N. S.) 361. 367. 2 Clough v. Curtis (Idaho, March CHAPTER 10. MANDAMUS TO PUBLIC OFFICERS AND PUBLIC CORPORA- TIONS. § 108. A mandamus lies to all public officers and public corporations to perform any ministerial duty. 109. When suits do, not accomplish the act desired, a mandamus lies — Illustrations. 110. Mandamus not issue when officers have a discretion as to the manner or matter of doing the act. 111. Mandamus to the governing board of a county. 112. Acts of county authorities, involving judgment and discretion. 113. Mandamus to city councils. 114. Mandamus to officers of taxes. 115. Mandamus relative to public schools. 116. Mandamus to enforce duties relative to the public roads. 117. Mandamus relative to letting public contracts. 118. Mandamus relative to the approval of bonds of officers. 119. Mandamus about issuing licenses. 120. Mandamus to police officials. 121. Mandamus to clerk of the county board. 122. Mandamus to the clerk of a court. 123. Mandamus to a sheriff. 124. Mandamus to a register of deeds. 125. Mandamus to keep public offices in the proper places. 126. Mandamus to auditing officers. 127. Mandamus to assessors of taxes. 128. Mandamus relative to subscriptions by municipal corporations to railroads, etc. 129. Mandamus to levy a tax to pay debts, when authority to make a levy is granted or is implied. 130. Claims must be legally established before a mandamus will issue to compel the levy of a tax for their payment. 131. In a mandamus on a judgment, is the latter conclusive? 132. In a mandanms to levy a tax to pay a demand, public necessities must be first considered. 133. Mandamus to collectors of revenue. 134. Mandamus to obtain possession of public funds. 135. Mandamus to disbursing officers. 136. Mandamus concerning the payment of salaries. 9 130 TO PUBLIC OFFICERS AND CORPORATIONS. [§§ 108, 109. § 108. A mandamus lies to all public officers and public corporations to perform any ministerial duty. — As already stated, the writ of mandamus will issue to public officers, public boards and public corporations, and all others exer- cising public authority, to compel the performance of such official acts as clearly pertain to their duty and are of ab- solute obligation. 1 The duties referred to must call for no discretion or exercise of official judgment. 2 Whether a duty is merely ministerial, or calls for the exercise of dis- cretion or judgment, is a matter for the courts to decide; and since the range of duties is almost infinite, and the dis- cretion granted in each case depends upon the local law, the decisions of the courts cannot be expected to be in har- mony. We will call attention to a number of cases, involv- ing a variety of questions, which will illustrate the nature of the subjects and duties on account of which this writ has been invoked. Since the principles and application thereof are the same, whether the writ be sought against a public officer or a public board or a public corporation, and the writ in the two latter cases being often issued against the individuals by name, who compose the public board or the part of the public corporation charged with the performance of the duty sought, we will make no dis- tinction between them relative to the duties on account of which the writ of mandamus has been applied for. The legality of the incorporation of a public corporation cannot be questioned in ^mandamus proceeding. 3 §109. When suits do not accomplish the act desired, a mandamus lies — Illustrations. — Though corporations and ministerial officers are liable to be sued for neglect of duty, yet the writ of mandamus will go to compel a proper execution of their duties, such suits not accomplishing the i Arberry v. Beavers, 6 Tex. 457 ; 2 Willeford v. State, 43 Ark. 62. People v. Inspector State Prison, 3 People v. Schools (Board Trust- 4 Mich. 187; People v. State Treas- ees), 111 111. 171 ; Hon v. State, 89 urer, 24 Mich. 468 ; Runion v. Lati- Ind. 249. mer, 6 S. C. 126. § 109.] TO TUBLIC OFFICERS AND CORPORATIONS. 131 object desired — the fulfillment of the duty. 1 The writ has been issued to the mayor of a city : to sign an order for the payment of a claim against the city ; - to sign a contract made in pursuance of the charter and ordinances of the city ; s to countersign a warrant of the comptroller to pay money as ordered by the board of supervisors ; 4 and to issue and sell city bonds and to pay into court the adjudged value of lands condemned for wharf purposes. 5 The writ has been issued : to compel an officer to prepare and sign the bonds of a municipality for lands purchased by it, as directed by law ; fi to compel the canal appraisers, on ap- peal from them, to make return of their proceedings to the canal board; 7 to compel a probate judge to issue his war- rant to the sheriff or some suitable person to return to his township a patient discharged from the insane asylum ; 8 to compel the commissary to admit a party as the deputy of the register of the court of the archbishop of York; 9 to compel officers to keep their public books in a certain way in accordance with the statute; 10 to compel the steward, who keeps the corporate books, to produce them at the corporate meeting to enter therein the elections of their members; 11 to compel a municipal officer to submit his books of account to the officers authorized to inspect them ; 12 to compel the proper officer to put the corporate seal to the certificate of election of its recorder ; 13 to make the keeper of the rolls furnish the superintendent of public printing with the manuscript of all bills passed, 14 and to i State v. Wilson, 17 Wis. 687 ; 8 State v. Burgoyne, 7 Ohio St McCullough v. Brooklyn (Mayor), 153. 23 Wend. 458 ; People v. Mead, 24 9 Rex v. Ward. 2 Str. 893. N# y 114. 10 State v. Eberliardt, 14 Neb. 201. 2 State v. Ames, 31 Minn. 440. » Calne (Borough), Case of, 2 Stra. » State v. Ricord, 35 N. J. L. 396. 948. * People v. Opdyke, 40 Barb. 306. 12 Keokuk (City) v. Merriam, 44 5 Duncan v. Louisville (City), 8 Iowa, 432. Bush, 98. 13 King v. York (Major), 4 T. R 6 People v. Brennan, 39 Barb. 522. 699. ^ People v. Canal Appraisers, 73 " Wolfe v. McCaull, 76 Va. 876. N. Y. 443. 132 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 110. compel him to strike from the rolls any act which the court decides is not law ; l to compel a constable to receive county warrants in payment of fines, as provided Iry law ; 2 to com- pel a subordinate officer to obey the decision of a superior officer who has appellate jurisdiction over him ; 3 to compel a county judge to appoint appraisers to assess the damages for condemning a right of way; 4 to compel a board of trustees, who appointed the appraisers to assess the dam- ages for the appropriation of land, to certify the proceed- ings upon appeal to the circuit court ; 5 and to compel the clerk of the court to file certain resolutions of the various school boards making a city one school district. 6 When a mandamus is sought to compel a city to remove an ob- struction from an alley, which was placed there by a rail- road company with the consent of the city, it must be af- firmatively shown that an unlawful use is being made of the alley. 7 § 110. Mandamus not issued when officers have a dis- cretion as to the manner or matter of doing the act. — Where, however, the law allows a discretion as to the man- ner or matter of doing a certain act, a mandamus will not issue to compel its performance. On the ground that a discretion was allowed in the matter, a writ of mandamus has been refused : to compel the board of liquidators to sell state bonds in order to bond the floating state debt ; 8 to compel the issuance of patents for donation lands to partic- ular state soldiers ; 9 to compel the state board to let the contract for public printing, when the board is allowed to award it only to responsible persons or to those who file a 1 Wise v. Bigger, 79 Va. 269. 5 Wabash, etc. Canal (Trustees) v. * Lusk v. Perkins, 48 Ark. 238. Johnson, 2 Ind. 219. 3 United States v. Raum, 135 U. S. 6 Com. v. James, 135 Pa. St. 480. 200 ; United States v. Black, 128 7 State v. New Albany (City), 127 U. S. 50. Ind. 221. 1 Illinois C. R. R. v. Rucker, 14 8 State v. Warmoth, 23 La. An. 111. 353. 76. •Com. v. Cochran, 6 Binn. 456. §111.] TO PUBLIC OFFICERS AND CORPORATIONS. 133 satisfactory bond ; 1 to compel the commissioners of a bank- rupt to give a certificate of conformity; 2 to compel the election of managers of an alms-house so as to leave three of the old managers; 3 to compel the mayor and capital burgesses to remove a capital burgess for non-residence ; * to review the action of a city in refusing to cause an im- provement of a street to be made, and to be paid for out of the general funds ; 5 to compel the justices to nominate a particular justice as one of the three to be nominated to the governor, out of whom he selects a sheriff ; 6 or to compel the mayor to execute leases for coal lands of the Girard es- tate to certain persons, who had been accepted as suitable by the superintendent of those lands under the supervision of the committee of the council. 7 § 111. Mandamus to the governing board of a county. The writ of mandamus lies to compel the tribunal or body which manages the affairs of a county to discharge its du- ties, but the writ can only require the performance of acts which such body is authorized by law to perform. 8 When the county commissioners without authority of law em- ployed an attorney, a mandamus to compel them to pay him out of the county treasury was refused. 9 The county supervisors had no jurisdiction to compel towns to pay money in compensation for wrongful acts of town officers, and a mandamus was refused to compel them to audit and allow such a claim and to direct it to be levied on the town or county. 10 On the other hand, as being within the range of their ministerial duties, the county authorities have been compelled by this writ : to accept the lowest bid received i State v. Robinson, 1 Kans. 188. GFrisbie v. Wythe Co. (Just), 2 2 Respublica v. Clarkson, 1 Yeates, Va, Cas. 92. 46- i Com. v. Henry, 49 Pa, St 530. 3 Respublica v. Guardians of 8 Bass v. Taft, 137 U. S. 458. Poor, 1 Yeates, 476. 9 State v. Franklin Co. (Coni'rs), * King v. West Looe (Mayor), 5 21 Ohio St 648. Dow. & R. 414 10 People v. Chenango Co. (Sup'rs), 5 Michigan City (Mayor) v. Rob- 11 N. Y. 563. erts, 34 Ind. 471. 13 Jr TO PUBLIC OFFICERS AND CORPORATIONS. [§ 111. for the sale of town warrants j 1 to reconvene and declare a resolution carried and to so record the fact, after the reso- lution had been declared to be defeated and the record so made up, through a misunderstanding of the requirements of the law ; 2 to accept and approve a sheriff's bond, which, they claimed erroneously, was offered too late ; 3 to correct an erroneous assessment and to refund the money paid, under an order of court so recommending to them ; 4 to ap- portion a debt upon the taxable property of the county ; 5 to make a highway on the failure of a town to do so within a certain time ; 6 to lay off and sell lots at the new county seat; 7 to appropriate a certain sum for the construction of a bridge, the law relative thereto having been fully com- plied with ; 8 to refund the amount of a fine which was paid to avoid imprisonment, after the judgment imposing the fine had been reversed on appeal ; 9 to admit to record a deed of emancipation of slaves, 10 and to certify that such slaves, who were then before them, were of sound mind and body and between certain ages as appeared to them ;" to divide a township after the requirements of the statute were com- plied with and the proper petition was presented ; 12 to set apart certain funds in their treasury for a specific purpose as required by law ; 13 to issue warrants, when vacancies oc- cur in township offices, to the municipal officers of the town to fill such vacancies ; 14 to audit the accounts against the county, incurred by its clerk, and to issue its warrant there- for ; 15 and to admit the report of the surveyor relative to i Mau v. Liddle, 15 Nev. 271. 8 Supervisors (Board) v. People, 24 2 People v. Brinkerhoff, 68 N. Y. Ill Ap. 410. 259 fl People v. Wayne Co. (Board * State v. Lewis, 10 Ohio St. 128. AucL), 41 Mich. 223. 4 People v. Ulster Co. (Sup'rs), 65 10 Manns v. Givens, 7 Leigh, 689. N Y. 300. n Dawson v. Thruston, 2 Hen. & 5 People v. Jackson Co. (Sup'rs), M. 132. 24 Mich. 237. 12 He ni T v - Ta y lor > 57 Iowa > ~ 2 - " e Richards v. Bristol (Com'rs), 120 13 Humboldt Co. v. Churchill Co., Mass. 401. 6 Nev. 30. ? State v. McMillan, 8 Jones, 174. 14 Rose v. Co. Com'rs, 50 Me. 243. 15 Boone Co. v. Todd, 3 Mo. 140. § 111.] TO PUBLIC OFFICERS AND CORPORATIONS. 135 land sold for taxes. 1 Since this writ lies to compel officers, possessing discretionary or judicial power, to consider and pass on questions submitted to them, it has been issued to the county authorities : to pass on and to audit claims against the county presented to them for allowance; 2 to order the plat of a survey of land sold for taxes and not redeemed, and the certificate of the surveyor thereto, to be recorded, if they find it to be correct; 3 to determine the amount due to the sheriff for collecting the taxes ; 4 to fix the rate for the use of water ; 5 when land has been assessed in two town- ships, to determine what taxes are to be refunded and by what township; 6 to equalize an assessment, made because a prior assessment had omitted certain propert} 7 ; 7 to compel them to summon a jury to assess the damages incurred by the appropriation of land for a railroad ; 8 to furnish road overseers with necessary implements to put roads in proper condition ; 9 to hear and adjust a sheriff's claim for fees, which they had refused to do, unless he would release all errors in a judgment then pending on appeal which the county had obtained against him, which he had declined to do; 10 to settle a claim against the county, and to levy a tax to pay it ; u and to hear and determine whether cer- tain taxes have been illegally assessed by the towns and paid, and to cause them to be repaid by the towns, if so illegally assessed and paid. 12 By this writ the county au- thorities have been compelled: to build a bridge according 1 Randolph v. Stalnaker, 13 Grat. 7 Virginia, etc. R. R. v. Orrnsby 523. Co. (Com'rs), 5 Nev. 341. 2 State v. Hamilton Co. (Com'rs), s Carpenter v. Bristol Co. (Com'rs), 26 Ohio St. 364 ; People v. Delaware 21 Pick. 258. Co. (Sup'rs). 45 N. Y. 196; Brady v. * Monroe Co. (Sup'rs) v. State, 63 New York (Sup'rs), 2 Sandf. 460. Miss. 135. 3 Delaney v. Goddin, 12 Grat 266. io Taylor, Ex parte, 5 Ark. 49. 4 Koonce v. Jones Co. (Com'rs), n Madison Co. Court v. Alexander, 106 N. C. 192. Walker, 523. 5 Spring Valley W. Co. v. Super- 12 People v. Otsego Co. (Sup'rs), 53 visors (Board), 61 Cal. 18. Barb. 564 ; People v. Herkimer Co. 6 People v. Essex Co. (Sup'rs), 70 (Sup'rs), 56 Barb, 452. N. Y. 228. 136 TO PUBLIC OFFICEKS AND CORPORATIONS. [§ 111. to an act of the legislature ; 1 to provide a house of refuge distinct from the common jail; 2 to complete the county building as required bylaw; 3 to build a jail — but they were allowed their discretion as to the kind, size and cost of the jail, and the quality of the materials used. 4 The county authorities cannot be compelled to erect county buildings when the law leaves that matter to their discre- tion. 5 When the county authorities are required to pro- vide a court-room, a jail, etc., they discharge their duty by supplying such accommodations, though the buildings were not erected for those purposes. 6 If they have a discretion as to when they will erect public buildings, they may stop the construction thereof, and cannot be compelled by man- damus to allow such construction to proceed; the con- tractor, who is the party most interested, can sue the county on his contract. 7 County authorities have been compelled by mandamus to subscribe in the name of the county for railroad stock, as authorized by popular vote, 8 and to the amount of money collected on a tax voted for that purpose ; 9 they have also been required to issue county bonds to a railroad, 10 and to a contractor for the construe- tion of a road in accordance with the provisions of an act of the legislature, after due acceptance of. the road. 11 When a county court refuses to allow a claim against a county, a mandamus will not lie, since there is a remedy by a suit against the county. 12 When the county board is called upon to act judicially, as on an application to abate the taxes of an i Com. v. Fairfax Co. (Just.), 2 » Black, Ex parte, 1 Ohio St. 30. Va. Cas. 9 ; Corn. v. Kanawha Co. 8 Selma, etc. R. R., Ex parte, 45 (Just.), 2 Va. Cas. 499. Ala. 696. 2 Com. v. Hampden (Sessions), 2 » Pfister v. State, 82 Ind. 382. Pick. 414. M> Smith v. Bourbon Co., 127 U. S. 3 State v. Perry Co. (Com'rs), 5 105 ; People v. Ohio Grove Town., Ohio St. 497. 51 111. 191. * People v. La Salle Co. (Sup'rs) H Noble Co. (Com'rs) v. Hunt, 33 84 111. 303. Ohio St. 169. r ' State v. Howell Co. Court, 58 ™ Crandall v. Amador Co., 20 Cal Mo. 583. 72; State v. Floyd Co. (Judge), 5 Black, Ex parte, 1 Ohio St 30. Iowa, 380 ; Portwood v. Montgom- § 112.] TO PUBLIC OIFICKKS AND CORPORATIONS. 137 individual, 1 the writ of mandamus will not lie. An assignee of a part of a debt due from the county was refused a man- damus on the board of supervisors to issue him a warrant, because he did not sustain such a relation to the respond- ents as to entitle him to such remedies. 2 A mandamus to the county commissioners to enter judgment on a claim presented to them for services as county auditor was re- fused, because the case was then in the circuit court on appeal. 3 "When the notice to the voters of a township rel- ative to voting on the question of issuing bonds to be used in improving the township roads did not comply with the law, a mandamus was refused to compel the county super- visors to issue bonds, in accordance with the request of the majority of the voters, as evidenced by the vote, to be paid by taxation levied on the township. 4 § 112. Acts of county authorities, involving judgment and discretion.— In a matter wherein the county board has taken action and exercised its discretion and judgment, in accordance with the general rule its decision cannot be reviewed by the writ of mandamus. The writ has been refused : to review its decision in granting a license for a ferry where there were two applicants ; 5 in determining the compensation due to a constable for conveying a pauper from one town to another ; 6 in appointing collectors of taxes, after rejecting the persons returned by the assessors ; 7 in deciding whether five hundred qualified voters had joined in a petition to them to order an election ; 8 in dismissing a petition to them, for an increase of damages for land con- demned, for want of prosecution ; 9 and in dismissing a peti- ery Co. (Sup'rs), 52 Miss. 523 ; United 5 Oxford Ferry Co. v. Sumner Co. States v. Buchanan Co., 5 Dil. 285. (Com'rs), 19 Kans. 293. 1 Gibbs v. Hampden Co. (Com'rs), 6 People v. Albany (Sup'rs), 12 19 Pick. 298. Johns. 414. 2 Foote v. Noxubee Co. (Sup'rs), 67 ■ Com. v. Perkins, 7 Pa. St 42. Miss. 156. 8 state v. Eureka Co. (Com'rs), 8 3 Lagrange Co. (Com'rs) v. Cutler, Nev. 309. 7 Ind. 6. 9 Davis v. County Com'rs, 63 Me. 4 McMahon v. San Mateo Co. 396. (Sup'rs), 46 Cal. 214. 138 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 113. tion for an order for an election to relocate the county seat, when the board had struck off of the petition some of the names and had then rejected it for not being signed by enough petitioners. 1 § 113. Mandamus to city councils. — This writ issues to the legislative branches of municipal corporations to com- pel the performance of ministerial duties imposed on them. It has been issued to the common council of a city : to pass an ordinance, as required by legislative act, to create a pub- lic fund for the erection of a market ; 2 to open a certain street laid out by them ; 3 to consider and act upon the nom- inations submitted by the mayor for their approval under an act to establish a board of public works; 4 to approve a plat of land laid out in a city when the owner had fully complied with the law ; 5 to fix the bond of trustees of water- works as required by law ; 6 and to pass an ordinance to levy a tax to pay a judgment against the city ; 7 and by this writ the two councils of a city have been compelled to meet in joint session in order to appoint such heads of departments as are not elected by the people. 8 Should such common council, owing to diversity of views, fail to pass an or- dinance commensurate with the duty to be discharged, the courts will not be satisfied therewith, but will compel the members of such council to come to an agreement and discharge the duty imposed upon them. 9 It is not consid- ered proper to compel the aldermen to attend the meetings of the common council and to perform their general official duties, because the courts are not created to conduct the municipal affairs of cities, and nothing short of such gen- eral supervision could reach such a case. 10 i State v. Nemaha Co., 10 Neb. 32. 6 Lafayette (City) v. State, 69 Ind. 2 People v. New York (Com. 218. Council), 45 Barb. 473. " People v. San Francisco (Sup'rs), 3 State v. Orange (Com. Council), 21 Cal. 6G8. 31 N. J. L. 131. s Lamb v. Lynd, 44 Pa. St. 336. * People v. Detroit (Com. Coun- 9 Com. v. Taylor, 36 Pa. St. 263 ; cil), 29 Mich. 108. People v. San Francisco (Sup'rs), 21 6 State v. Chase, 42 Mo. Ap. 343. Cal. 668. io People v. Whipple, 41 Mich. 548. §§ 114, 115.] TO PUBLIC OFFICERS AND CORPORATIONS. 139 §114. Mandamus to officers of towns.— The writ of mandamus has been used to compel : a town to raise by taxa- tion its share of the amount required for a joint-high school ; l the board of a township to draw its warrant on the township treasurer for damages appraised and certified on account of the establishment of a road ; 2 the trustees of a town, to give the requisite notice for the election of their succes- sors; 3 the supervisors of towns, which have been divided, to meet and apportion the poor and the moneys of their re- spective towns, and to re-assemble and correct their appor- tionment, if at their meeting they have only partially per- formed their work, omitting the disposition of a particular pauper; 4 the president of the trustees of a village to sign the bonds of the village issued according to law ; 5 a town clerk to countersign township bonds issued in favor of a railroad company ; 6 a town clerk to amend his record, if there is any error in it arising from design, mistake or accident, 7 or if it does not record the votes as publicly declared by the moderator, 8 but not to make his record show a different vote from that declared by the modera- tor, since it is his duty to enter up the record of votes as given in by the moderator. 9 When upon a division of a township, the two townships have divided the indebtedness of the old township between them, a mandamus will lie to the board of one to issue an order on its township treas- urer for the payment of its share of the debt. 10 § 115. Mandamus relative to the public schools.— The public schools are supported and controlled by the govern- In 1736 a mayor was required to *Sandlake (Sup'rs) v. Berlin attend the assemblies of the corpo- (Sup'rs), 2 Cow. 485. ration because an act of parliament 5 People v. White, 54 Barb. 622. so required. R. v. Everet, Cas. 6 Houston v. People, 55 III 398 ; Temp. Hardw. 261. People v. Cline, 63 III 394 •Joint F. H. School v. Green 7 Boston T. Co. v. Pomf ret (Town), Grove (Town), 77 Wis. 532. 20 Conn. 590. 2 People v. La Grange (Tp. Board), 8 Hill v. Goodwin, 56 N. H. 441. 2 Mich. 187. 9 Bell v. Pike, 53 N. H. 473. 3 People v. Fairbury (Town), 51 w Marathon (Town) v. Oregon HI, i49 # (Town), 8 Mich. 372. 140 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 115. merit, and are managed by public officers, and the writ of mandamus has often been used to compel the performance of duties connected therewith. This writ has been used to restore pupils who have been improperly excluded from the public schools under a rule made by the board of directors without authority. 1 "Where an applicant for admission to a college supported by the government was refused ad- mission, unless he would first separate himself from a society, which was not immoral a mandamus was issued ordering his admission, if he was otherwise eligible, such reg- ulation being held to be unreasonable and void. 2 By this writ teachers in the public schools have compelled the disbursing officers for the schools to pay them their salaries, 3 or have compelled the proper officers to give them warrants there- for on the disbursing officers. 4 School directors are not per- sonally liable on their contracts as such directors, 5 and where the funds of a school board were held by a city treas- urer, and paid out by him on drafts issued by the school board, a creditor was allowed by a mandamus proceeding to prove up his claim, and to obtain an order for the school board to issue to him a draft on the city treasurer for the amount found to be due to him. 6 A teacher of a public school, who has been removed contrary to law by the school di- rectors, may, by mandamus, compel them to restore him to his position. 7 This writ has been issued to compel the school directors: to supply the schools required by law to the children in their districts; 8 to allow the pupils to use cer- tain text-books ; 9 and to introduce into the schools the text- books adopted by the proper authority. 10 In such proceed- 1 Perkins v. Ind. School District, 6 Raisch v. Board of Education, 56 Iowa, 476 ; State v. Osborne, 24 81 Cal. 542. Mo. App. 309. " Morley v. Power. 73 Tenn. 691. 2 State v. White, 82 Ind. 278. § Hancock v. Perry (Dist. Town.), 3 Martin v. Ell wood, 35 Minn. 309 : 78 Iowa, 550. Martin v. Tripp, 51 Mich. 184; Ar- 9 State v. Columbus (Board of rington v. Cotton, 1 Baxt. 316. Education), 35 Ohio St 368. *Apgar v. Trustees, 34 N. J. L. ™ State v. Springfield (School Di- 308. rectors), 74 Mo. 21. o Meadows v. Nesbit. 80 Tenn. 486. §115.] TO PUBLIC OFFICERS AND CORPORATIONS. 141 inffs, it has been decided that children cannot be excluded from the public schools by reason of their color. 1 Whether the school authorities may provide separate schools for colored children, and exclude them from the other schools, is a question on which the courts are in conflict. 2 In accord- ance with the provisions of the law, towns will be required by mandamus to appropriate a certain proportion of the taxes to support common schools. 3 Where the school au- thorities are allowed a discretion, a mandamus does not lie to control such discretion. They will not be required : to ap- prove of a school teacher; 4 to issue a teacher's certificate; 5 to approve of the bill of a school-master for educating poor children; 6 or to admit a boy to the public schools, because they assigned an untenable reason for his rejection, when they were not required to assign any reason for such re- jection. 7 In matters involving discretion, school officers, like all others, may be required to consider and come to a decision thereon. 8 Where the action of the committee of a school district was irregular in not holding the sessions 6f the school in the school-house, but there was no danger of increasing the taxes thereby, the school term was nearly out, and the change was but temporary, the court, in its discretion, refused to require them to keep the school in the school-house. 9 A person who had obtained a judgment against a district township upon an order on the school- house fund, to whom the school directors had issued an order upon their treasurer for the payment of his judgment, i Smith v. Ind. School District, 40 3 Hall v. Somersworth (Select- Iowa, 518; Dove v. Ind. School men), 39 N. H. 511. District, 41 Iowa, 689; State v. Duffy, 7 New 342 ; People v. Detroit W. Va. 227 Board of Education, 18 Mich. 400 Ward v. Flood, 48 Cal. 30. 2 Pro: State v. Duffy, 7 Nev. 342 4 Wintz v. Board of Education, 28 5 Bailey v. Ewart, 52 Iowa, 111. 6 Com. v. County Commissioners, 5 Binn. 536. Ward v. Flood, 48 Cal. 36. Contra, 7 State v. Joint School District, 65 Smith v. Ind. School District, 40 Wis. 631. Iowa, 518; Dove v. Ind. School Dis- 8 Alhin v. Ind. District (Board of trict, 41 Iowa, 689. Directors), 58 Iowa, 77. » Colt v. Roberts. 28 Conn. 330. 112 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 115. was refused a mandamus to compel payment of his claim out of the general school fund to the exclusion of other holders of orders who had not obtained judgments. He was entitled to a mandamus for his pro rata share. His judg- ment only entitled him to levy, if he could find what was not exempt, or to a mandamus to compel the levy of a tax to pay it. 1 Where a school district, which is by law a cor- poration, orders the school committee to restore a teacher whom they have removed, they are bound to obey, and may be compelled by mandamus to make such restoration. 2 "Whenever orders are issued in compliance with law against the treasurer of a school district, and he has funds in his hands applicable thereto, he will be compelled by this writ to pay them. 3 The writ of mandamus will not be granted in matters relating to public schools, when the public inter- ests will suffer thereby. The courts had a discretion in many cases in granting this writ, and they will compel pri- vate interests to yield to public interests, and will refuse the writ, if the grant thereof will prejudice the interests of the public. In accordance with law, a committee of teach- ers selected a certain series of text-books to be used in the public schools of a certain county, and it became the duty of the superintendent of the county schools to contract with the publishers therefor. Subsequently the state board of education, who assumed that the committee had failed to adopt a complete list of books, ordered the superin- tendent to reconvene the committee for that purpose. The superintendent called the committee together again, and appointed substitutes for those members who refused to at- tend. The new committee then rescinded the prior action, and adopted a new series of books. The new books were supplied ; the patrons of the schools bought them for their children ; they were used in the schools, and the teachers were ordered to teach from them. The publishers of the J Chase v. Morrison, "40 Iowa, 620. Mich. 170 ; Maher v. State (Neb., 2Gilman v. Bassett, 33 Conn. 298. July 1, 1891), 49 N. W. Rep. 436. 3 Phillips v. School District, 79 § 116.] TO PUBLIC OFFICERS AND CORPORATIONS. 143 first series of books asked for a mandamus to compel the county superintendent to contract with them for a supply of their books. Though the court admitted the justness of the claim of the relators, yet, owing to the complications and the evil consequences likely to arise affecting the pub- lic interests, it refused to grant the writ. 1 § 116. Mandamus to enforce duties relative to the public roads. — A mandamus is the proper remedy to com- pel officials to perform their duties concerning public roads. 2 It lies to make them keep streets and highways in repair, when they are charged with such duty, or full power in such matters is bestowed on them,* and to remove obstructions therefrom when such duty is imposed upon them. 4 When the law provides for the indictment of parties who have placed obstructions on a highway and for the removal of such obstructions upon the conviction of such parties, a mandamus to the proper officers to compel the removal of such obstructions will be denied, because the law has pro- vided another remedy. 5 When a bridge is owned by a county and is kept open for public travel, the county is bound to keep it in repair, and such duty will be enforced by a mandamus. 6 In accordance with their duties public officials will be required by this writ to build 7 , to complete, 8 and to maintain 9 public bridges, and to keep them in re- pair, 10 which includes a new superstructure, or a rebuilding. or a replacing, if for any cause it may become necessary. 11 i Effingham v. Hamilton, 68 Miss. 6 State v. Wood Co. (Sup'rs), 41 523. Wi s- 28. 2 State v. Putnam Co. (Com'rs), 23 ^ Com. v. Sheehan, 81 Pa. St. 132 ; Fla. 632. People v. San Francisco (Sup'rs 1 , 36 3 Hammav v. Covington (City), 3 Cal. 593. Mete. (Ky.) 494; St. Clair County v. 8 Com. v. Loomis, 128 Pa. St. 174. People, 85 111. 396 ; People v. Bloom- 9 Pumphrey v. Baltimore (Mayor), ington (City), 63 111. -07 ; Uniontown 47 Md. 145. (Borough) v. Com., 34 Pa. St. 293. io Ottawa (City) v. People, 48 111. 233. *Pafterson v. Vail, 43 Iowa, 142. " Howe v. Crawford Co. (Com'rs), 5 Highways (Com'rs) v. People, 73 47 Pa. St 361 ; State v. Gibson Co. 111. 203 ; Reading (Councils) v. Com., (Com'rs), 80 Ind. 478 ; State v. De- ll Pa, St 196. maree, 80 Ind. 519. 144 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 116. This writ will issue to compel the proper officers to open a highway which has been legally established, 1 to lay out a road, 2 and to grant an application to establish, a private road. 3 As being ministerial duties, this writ has been issued : to compel the county commissioners to draw a warrant for the damages assessed by a jury for land taken for laying out a highway, though measures were then pending to dis- continue such proceedings; 4 to compel the selectmen of a town to pay the damages assessed as sustained by the lay- ing out of a highway, 5 and to summon a jury to locate a highway after the jury summoned by the coroner has dis- agreed. 6 The writ has been refused, because it was discre- tionary with the officers to act or not : to build a bridge, though they had levied one year's tax to assist the con- struction ; 7 to proceed in opening a street, the property hav- ing been abandoned before a tender or payment of the dam- ages assessed ; 8 to lay out a road when public convenience and necessity no longer required it, and they had so de- cided ; 9 to compel a police jury to make a contract or pass an ordinance authorizing the construction or shelling of a public road ; 10 to lay out a road when they reported another road substantially identical has been laid out and accepted which would fully satisfy public wants ; u to rebuild a bridge ; 12 to appropriate money to rebuild a fallen bridge, when they had power to establish or change highways, and such bridge was part of a highway. 13 Where officers have a discretion as 1 Moon v. Cort, 43 Iowa, 503 ; 6 Mendon (Inhabitants) v. Worces- Sheaff v. People, 87 111. 189 ; People ter County, 10 Pick. 235. v. Davis, 93 111. 133 ; Hall v. People, 7 State v. Henry Co. (Com'rs), 31 57 111. ?m ; State v. Wellman, 83 Me. Ohio St. 211. 282 ; People v. Collins, 19 Wend. 56. 8 state v. Graves, 19 Md. 351. 2 Sanger v. Kennebec Co. (Com'rs), 9 Hill v. Worcester, 4 Gray, 414. 25 Me. 291. 10 State v. Jefferson Co. (Police • j Steele v. County Com'rs, 83 Ala. Jury), 22 La. An. 611. 304. n Hitchcock v. Hampden Co. 4 Harrington v. Berkshire Co. (Com'rs), 131 Mass. 519. (Com'rs), 22 Pick. 263. 12 state v. Essex .(Freeholders), 23 5 Treat v. Middletown (Town), 8 N. J. L. 214. Conn. 243. 13 State v. Morris, 43 Iowa, 192. § 117.] TO PUBLIC OFFICEKS AN'D C0KP0KA.TI0NS. 145 to when or how they shall repair a bridge, though a man- damus may issue to compel them to repair it, yet it will not direct the manner of performing such duty but will order its performance generally. 1 The acceptance or rejec- tion by the county commissioners of the report of a com- mittee, appointed by agreement, pursuant to the law, to assess the amount of damages sustained by the laying out of a public road, is judicial, and a mandamus will not lie to compel the acceptance of the report. 2 The commissioners of highways were not required to make a contract to pave certain streets with the person selected by a majority of the property-owners, since they were only required so to do if such person were competent, and they had a discretion in judging as to his competency. 3 A mandamus does not lie to make a county pay a part of the expense incurred by a town in making a highway, when the county commis- sioners, having a discretion in the matter, have rejected an application for such a payment. 4 When the county com- missioners refuse to locate and open a road on the report of the reviewers, a mandamus will not lie, because the statute gives a remedy by appeal. 5 Since the writ only lies to enforce a duty, commissioners of highways will not be compelled by mandamus to lay out a highway so as to com- mit trespass or to subject them to an action of trespass," nor be required to certify that the public roads are kept in good repair for the benefit of a contractor, though the court finds that such is the fact, since such officers have a discretion in that matter. 7 § 117. Mandamus relative to letting public contracts. The law generally requires public officers, who are charged i St. Clair (County) v. People, 85 5 Boone Co. (Com'rs) v. State, 38 111. 396 ; State v. Demaree, 80 Ind. Ind. 193. 519. 6 People v. Highways (Com'rs), 27 2 Kennebunk T. Bridge Proprie- Barb. 94 ; Clapper, Ex parte, 3 Hill, tors, Petitioners, 11 Me. 263. 458. 3 Dickerson v. Peters, 71 Pa St 53. ' Seymour v. Ely, 37 Conn. 103. 4 Ipswich, Inhabitants of, Peti- tioners, 24 Pick. 343. 10 116 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 117. with letting contracts for public work, to accept the lowest bid therefor, and to make the contract accordingly. When such bidder has fully complied on his part with the require- ments of the law, he may by the writ of mandamus compel the officer to make the contract with him. The writ has been considered appropriate in relation to a contract for constructing county buildings, 1 for state printing, 2 for ar- ticles to be purchased for use of the county for building a bridge, 3 and for repairing the Erie canal. 4 "When the offi- cer is allowed a discretion in the matter, the writ will be refused. 5 It has been refused: because the officer could decline the bids if he deemed them to be excessive or disad- vantageous to the state ; 6 because the officer was only re- quired to let the contract to the lowest bidder if he was responsible, 7 or if he furnished adequate security ; 8 because the contract was to be let to the lowest responsible bidder, and the contract in the case required for its fulfillment pecuniary ability, judgment and skill, 9 and because in the advertisement the right to reject any and all bids was re- served. 10 Where a person appeared to be the lowest bidder by the aggregate of the prices of the various articles desired, but to be a higher bidder when the amounts required of the various articles were considered, a mandamus in his favor was refused. 11 When the provision that the contract shall be let to the lowest bidder is considered to be directory merely, the writ is refused. 12 When after the receipt of the 1 Boren v. Darke Co. (Com'rs), 21 6 People v. Contracting Board, 33 Ohio St 311 ; State v. Licking Co. N. Y. 382. (Com'rs), 26 Ohio St 531. ?Hoole v. Kinkead, 16 Nev. 217. 2 State v. Barnes, 35 Ohio St 136 ; 8 People v. Fay, 3 Lansing, 398. State v. Printing Com'rs, 18 Ohio 9 Com. v. Mitchell, 82 Pa. St 343. St. 386 ; American C. Co. v. Lick- 10 Hanlin v. Ind. District 66 Iowa, ing Co. (Com'rs), 31 Ohio St 415. 69. 3 People v. Buffalo Co. (Com'rs), u State v. Hamilton Co. (Com'rs), 4 Neb. 150. 20 Ohio St 425. 4 People v. Contract Board, 46 12 Free Press Assoc v. Nichols, 45 Barb. 254. Vt 7. 6 People v. Contracting Board, 27 N. Y. 378. § 118.] TO PUBLIC OFFICERS AND CORPORATIONS. 117 bids the proposed work has been materiall} 7 changed, so much so that the public interests require a new advertisement to conform to such changes, the courts, exercising their discretion in such matters, refuse to grant the writ. 1 Some courts have refused absolutely to issue the writs in such cases, holding that the bidder has no fixed absolute right to the contract; that the provision about letting the con- tract to the lowest bidder was intended for the protection of the public and not of the bidder ; that if any injury is done it is to the public, that the bidder's rights are not different from those of the public ; that his profits are speculative and at most he has a claim for damages. 2 § 118. Mandamus relative to the approval of Ibonds by officers. — In many cases the law requires bonds from offi- cers for the faithful performance of their duties, and from private individuals, that in certain actions or occupations they will comply with the requirements of the law. These bonds are necessarily subject to the approval of other offi- cers. "Whether in the consideration of these bonds the approving officers are acting ministerially, and therefore subject to a review of their decisions by the courts through the writ of mandamus, or are acting judicially, in which case their decisions rejecting such bonds are final, is a question which depends very much upon the local laws in each case. Since the line of demarcation between ministerial and judicial acts cannot be drawn, we can only refer to some decisions on the subject, and it will be found that the courts differ in their conclusions. The county court, 3 the circuit court clerk 4 and the judge of probate, 5 in approving a sher- iff's bond act ministerially. The committee in approving a constable's bond, 6 the chancery clerk in approving offi- cial bonds, 7 the comptroller of the state in approving the 1 People v. Croton Aqued. Board, 3 State v. Lafayette Co. Court, 41 49 Barb. 259. Mo. 221. 2 State v. Board of Education, 24 Wigginton v. Maxkley, 52 CaL « State v. Richter, 37 Wis. 275. 411. 8 State v. McKinney, 5 Nev. 194 " See §85. 6 Bryson v. Spaulding, 20 Kans. 427 ; State v. Winn, 19 Wis. 304. § 123.] TO PUBLIC OFFICERS AND COBPOKATIONS. 151 writ will be refused. He was not required to issue an exe- cution, because the judgment was ambiguous. 1 Under a decree calling for periodic payments of alimony, a man- damus was refused to compel him to issue an execution for a certain large sum of money, because he could not assume that so much money was in arrears. 2 Though a mandamus is the proper remedy to compel all officers to perform purely ministerial duties, it has been refused in the case of the clerk of a court, because there was another remedy pro- vided by law ; 3 because a suit on his bond was deemed to be a sufficient remedy, 4 or because the court in its discre- tion refused to interfere, allowing the relator to obtain his redress by an application to the court itself, whereof the respondent was the clerk. 5 § 123. Mandamus to a sheriff'.— The writ of mandamus has been issued to compel a sheriff: to execute a writ of execution ; 6 to carry out the decree of the court and put a party in possession of property ; 7 to erase changes made in his return and make it conform to its original terms when such original return was correct ; 8 to surrender property which he is no longer entitled to hold, as when on appeal the bond is not filed in time, 9 or a wife claims that her hus- band is insolvent, and has given bond and security for the forthcoming of the household property levied on for the husband's debt ; 10 to appoint appraisers to appraise the prop- erty of the debtor, 11 and have the proper amount set apart as exempt from execution ; 12 to sell an estate as an entirety at the request of the mortgagee; 13 and to make a deed to the purchaser of property sold by him at execution sale. 14 1 Hall v. Stewart, 23 Kans. 396. 8 Ward v. Curtiss, 18 Conn. 290. 2 Compton v. Airial, 9 La. An. 496. 9 State v. Cunningham, 9 Neb. 146. 3Pickell v. Owen, 66 Iowa, 485. 10 Mitchell v. Hay, 37 Ga. 581. * Goodwin v. Glazer, 10 CaL 333. " People v. McClay, 2 Neb. 7. s See § 85. 12 Pudney v. Burkhart, 62 Ind. 179. 6 North P. etc E. R. v. Gardner, 1 3 Morris v. Womble, 30 La. An. 79 Ca 1 . 213. 1312. 1 Quan Wo Chung v. Laumeister, 14 Winters v. Burford, 6 Cold. 328 ; 83 CaL 384. People v. Fleming, 4 Denio, 137 ; 152 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 124. But the writ will not lie to compel the sheriff to do an act, unless it is clearly his duty to do so. He will not be required to give a deed to the purchaser at an execution sale, who re- fuses to pay the amount of his bid, claiming to be the oldest judgment and execution creditor, especially when there is an unsettled contest as to the lien of his judgment. 1 Where the purchaser at a sheriff's sale waited for nearly two years, and until the sheriff had resold nearly all the land and had failed to pay the amount of his bid, he was denied a man- damus to compel the sheriff to make him a deed. 2 A sheriff cannot be required by mandamus to execute a deed to a purchaser at an execution sale which contains recitals con- tradicted by his return, which he claims to be true. 3 A marshal cannot be compelled to execute a judgment on particular property, the title to which is in dispute,* nor a sheriff to levy on property standing in the wife's name in a suit against the husband, since the relator has not a clear leo-al right. 5 Where a sheriff fails to give his official bond within the time limited by law, his office is by law declared to be vacant, and a writ of mandamus will not lie to the county judge to accept a bond tendered thereafter. 6 A sher- iff will not be compelled to pay to the owner a surplus re- ceived upon the sale of his land for taxes, since there is an adequate remedy by a suit at law against the sheriff. 7 § 124. Mandamus to a register of deeds.— The writ of mandamus has been issued to a register of deeds to compel him : to record a deed presented to him for that purpose ; s to file and enter the satisfaction of a mortgage ; 9 to allow the officers authorized by law or their agents the use of a part of his office and access to his records, in order to enable them to transcribe such of those records as relate to lands Van Rensselaer v. Sheriff, 1 Cow. * State v. Craft, 17 Fla, 722. 50L 6 Lowe v. Phelps, 14 Bush, 642. i Williams v. Smith, 6 Cal. 91. 7 State v. Turner, 32 S. C. 348. 2 People v. Hays, 5 Cal. 66. 8 Strong's Case, Kirby, 345; sHewell v. Lane, 53 Cal. 213. Goodell, Ex parte, 14 John. 325. * Life, etc Ins. Co. v. Adams, 9 9 People v. Miner, 37 Barb. 466. Pet 571. §§ 125, 126.] TO PUBLIC OFFICEES AND COKPOKATIONS. 153 in a new county, which once constituted a part of the county to which such records belong. 1 Since the writ only issues relative to the discharge of official duties, it will not issue to compel a register of deeds to record a deed which he did not receive officially but as an escrow, and more es- pecially when one of the parties to such delivery has for- bidden him to deliver up or to record said deed. 2 § 125. Mandamus to keep public offices in the proper places. — The writ of mandamus is the proper remedy to make judges hold their courts, and county officers keep their offices, at the county seat, 3 and to compel other offi- cers to keep their offices within the districts or precincts for which they are elected. 4 Such questions often present themselves to a court by reason of a dispute as to the result of an election to decide the location of the county seat. A mandamus is considered to be the proper mode whereby to decide the result of the election, 5 unless another remedy has been provided by statute. 6 The result of the election as declared by the county commissioners is considered to be prima facie correct, 7 but it may be rebutted 8 if fraud is shown. 9 § 126. Mandamus to auditing officers.— This writ runs to public auditing officers to compel them to discharge their ministerial duties. Where a claim has been allowed by the proper authority, the duty of an auditor to audit it and draw his warrant on the proper disbursing officer is merely a ministerial duty, and he will be compelled by the writ of mandamus to perform this duty, upon his refusal to do so. 10 i Silver v. People, 45 111. 224; 4 State v. Shropshire, 4 Neb. 411. Hawes v. White, 66 Me. 305 ; State 5 State v. Avery, 14 Wis. 122 ; v. Meadows, 1 Kans. 90. State v. Saxton, 11 Wis. 27. 2 People v. Curtis, 41 Mich. 723. 6 State v. Stevens, 23 Kans. 456. 3 Calaveras (County) v. Brockway, 7 State v. Thatch. 5 Neb. 94. 30 Cai 325 ; Maxey v. Mack, 30 8 State v. Avery, 14 Wis. 122. Ark. 472 ; State v. Walker, 5 Rich. 9 State v. Marston, 6 Kane. 524. (N. S.) 263; State v. Thatch, 5 Neb. 10 People v. Green, 56 N. Y. 466 94; State v. Lean, 9 Wis. 279; State Babcock v. Goodrich, 47 Cal. 488 v. Avery. 14 Wis. 122 ; State v. People v. Schuyler, 69 N. Y. 242 Marston, 6 Kans. 524 State v. Mount, 21 La. An. 352 15i TO PUBLIC OFFICERS AND CORPORATIONS. [§ 126. If, however, such proper authority allowed a claim when it had no jurisdiction in the matter, 1 or allowed an illegal claim, 2 or an appeal has been taken from the decision and the allowance has been legally annulled, 3 the auditor may properly refuse to issue his warrant. When such auditing officer has a discretion in auditing a claim and in determin- ing the amount justly due, a mandamus will not lie to com- pel him to audit such claim for a certain amount, 4 since such action is judicial in its character. 5 When, however, j in his return to the alternative writ the respondent tendered an issue as to the amount due to the relator and asked that such issue be submitted to a jury, the court considered that he was bound by the verdict of the jury and ordered him to issue a warrant for the sum so found to be owing; whereas, if he had not offered to submit the matter to the jury, the order would have been to audit the account and to issue his warrant for the sum he found to be owing. 6 Since such allowance is a judicial act, the auditing officer or board has no power afterwards to review, reverse, vacate or set aside such allowance; 7 but a mandamus has been granted at the instance of third parties to compel an audit- ing board, which had allowed to a county treasurer more fees than the law permitted, to reconsider, revoke and annul the allowance as to such excess. 8 When an auditing officer has allowed a claim, he may be compelled by mandamus to draw his warrant on the proper officer for its payment. 9 Falk v. Strother, 84 Cal. 544 ; Cuth- 242 ; Auditorial Board v. Aries, 15 bert v. Lewis, 6 Ala. 262; Jack v. Tex. 72; Auditorial Board v. Hen- Moore, 66 Ala. 184 ; Kemerer v. drick, 20 Tex. 60. State, 7 Neb. 130. See §§ 104, 105. » People v. Livingston Co. (Sup'rs), i People v. Green, 56 N. Y. 466. 26 Barb. 118 ; Tilden v. Sacramento 2 State v. Yeatman, 22 Ohio St Co. (Sup'rs), 41 CaL 68. 5 4 6> 6 state v. Warner, 55 Wis. 271. a State v. Buckles, 39 Ind. 272. 7 State v. Buffalo Co., 6 Neb. 454 ; 4 People v. New York (Sup'rs), 1 Thomas v. Smith, 1 Mont. 21. Hill, 362; People v. San Francisco "People v. Westchester Co., 73 (Sup'rs), 11 Cal. 42 ; Tuolumne Co. v. N. Y. 173. Stanislaus Co., 6 Cal. 440; Bright 'State v. Mount, 21 La, An. 352. v. Chenango Co. (Sup'rs), 18 John. § 126.] TO TUBLIC OFFICERS AND CORPORATIONS. 155 When such auditing officer or board, possessing such dis- cretionary powers, refuses to consider a proper claim for any reason, a mandamus will issue to compel such consid- eration and a decision thereon. 1 In auditing an account the auditing officers must audit each separate and distinct item which is a legal charge. If they merely reduce the gross sum, without allowing or disallowing any particular item, a mandamus will lie to compel a proper audit. 2 The law must impose the duty of auditing such claims on an officer before he can be required to do so. A county audi- tor was not required to draw his warrant for a claim allowed and audited by the county of supervisors, because the law only required him to draw his warrant for claims audited by himself. 3 A receiver of public moneys asked for a man- damus to compel the examination and auditing of his ac- counts. It was refused, because the auditors were appointed by law to examine the accounts of public moneys, which the crown miffht submit to them. 4 When a claim is shown not to be a legal charge, a mandamus will not lie to audit it and issue a warrant for its payment. The writ was refused to compel town auditors to audit as a claim against the town a judgment obtained against highway officers for torts committed by them in the discharge of their duties. 5 When another officer is charged with the ascertainment and liqui- dation of an account, an auditor will not be required to audit it till it has been allowed by such officer. 6 Where a legislature had directed a city to pay a debt contracted in i State v. Hamilton Co. (Com'rs), 2p eop le v. Elinira (Town Aud.), 26 Ohio St. 364; People v. New 82 N. Y. 80; People v. Delaware York (Sup'rs), 32 N. Y. 473 ; People Co. (Sup'rs), 45 N. Y. 196. v. Macomb Co. (Sup'rs), 3 Mich. 3 Draper v. Noteware, 7 Cal. 276. 475; Hull v. Oneida Co. (Sup'rs), 4 Edmunds, Ex parte, L. T. R. 25 19 John. 259 ; People v. Columbia N. S. 705. Co. (Sup'rs), 67 N. Y. 330 ; Smith v. 5p e0 ple v. Town Auditors, 74 Strobach, 50 Ala. 462 ; Auditorial N. Y. 310 ; People v. Town Audi- Board v. Aries, 15 Tex. 72 ; Audi- tors, 75 N. Y. 316. torial Board v. Hendrick, 20 Tex. 6p u tnam Co. (Com'rs) v. Allen 60 ; State v. Wilson, 17 Wis. 687 ; Co. (Aud.), 1 Ohio St. 322 ; State v. People v. Bell, 4 CaL 177. Bonebrake, 4 Kans. 247. 156 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 126. violation of the restrictions placed on it and the city wished to pay it, its comptroller was not allowed to set at naught its will, but was compelled to draw his warrant therefor on the city chamberlain. 1 The weight of authority is, that an auditor will not be required to draw his warrant, unless there are funds in the hands of the officer on whom it is drawn wherewith to pay it. 2 The reason for such ruling must depend largely upon the duties of the auditor. If the records kept in his office keep him fully informed as to the money in the hands of the disbursing officer, it would seem unnecessary to compel him to issue his warrant ; and it would be the same where such claim could not be paid for lack of an appropriation. 3 Otherwise it seems appropriate to allow the claimant the proper voucher, and require the officer to do his plain duty, so that the money may be paid as soon as it is received. The writ has been issued under such cir- cumstances, the courts stating that the auditing officer had nothing to do with the question of payment and had no right to interpose such an objection against the discharge of his own duty. 4 "Where sufficient money should be on hand to pay off a claim, but it has been applied wrongfully, it has been considered in law still to be on hand, and a man- damus has been granted to compel the issuance of a war- rant. 5 The writ has also been issued where the money has been wrongfully credited to other accounts, and the auditor has been required to correct his books accordingly. 6 An auditor has been compelled to issue a warrant, though in his answer he alleged that he had issued a warrant for the relator which was levied on by a constable, who sold it, be- cause under the law such warrants were not liable to seiz- i People v. Haws, 36 Barb. 59. 3 People v. Burrows, 27 Barb. 89 ; 2 Com. v. Lancaster Co. (Com'rs), People v. Tremain, 29 Barb. 96. 6 Binn. 5 ; People v. New York 4 State v. Clinton, 28 La. An. 47 : (Compt.), 77 N. Y. 45 ; State v. Star- State v. Hoffman, 85 Ohio St. 435. ling, 13 S. C. 262 ; Board of Improv. See § 105. v. McManus, 54 Ark. 446 ; Lancas- 5 People v. New York (Compt). ter Co. (Com'rs) v. State, 13 Neb. 77 N. Y. 45. 523. 6 People v. Bell, 4 Cal. 177. § 127.] TO PUBLIC OFFICERS AND CORPORATIONS. 15 T ure, and the relator had never received it. 4 The perform- ance of other ministerial duties imposed by law on auditors have been enforced by this writ. They have been required to furnish for taxation a list of the stockholders for a rail- road company upon the failure of the company to do so, 2 to allow a collector of taxes credit for certain payments made by him, 3 and to sign leases made by a city. 4 § 127. Mandamus to assessors of taxes.— The writ of mandamus lies to compel assessors of taxes to do their duty. 5 It lies to make them assess all property which is subject to taxation ; fi to extend on the collector's books the taxes ac- cording to the increased valuation of property in the county made by the state board of equalization ; 7 enter on the as- sessment book the delinquent taxes of the preceding year; 8 strike an illegal assessment from the assessment roll ; 9 re- duce an assessment ; 10 hear claims of parties relative to taxes paid as assessed against exempt property, and if so paid determine the amount, audit, levy, collect and repay the same ; " transfer from A.'s name on the assessment book cer- tain property to B.'s name, to whom A. has conveyed it ; 12 extend a school tax upon the tax books according to the estimate furnished by the district school directors. 13 or by the board of education ; 14 assess as a tax the amount required for the poor of a city for any year as determined by the 1 People v. Wayne Co. (Auditors), unequal taxation. Butler v. Cob- 5 Mich. 223. let, 11 Mod. 254; Sullivan v. Peck- 2 State v. Hamilton, 5 Ind. 310. ham, stqjra. 3 People v. Miner, 46 111. 384. ' People v. Salomon, 54 III 39. 4 People v. Green, 64 N. Y. 499. 8 People v. Ashbury, 46 CaL 523. 5 State v. Whitworth, 8 Lea, 594. 9 People v. Barton (Assessors), 44 6 Hyatt v. A lien, 54 Cal. 353 ; Max- Barb. 148. well v. State, 40 Md. 273 ; Q. v. w People v. Olmsted, 45 Barb. 644. Barnwell (Corn'rs Land Tax), 11 n People v. Otsego Co. (Sup'rs), 53 Mod. 206 ; State v. Shearer, 30 Cal. Barb. 564. 645 ; Sullivan v. Peckham, 16 R. I. * 2 Cincinnati College v. Yeatman, 525 ; State v. Whitworth, 8 Lea, 30 Ohio St 276. 594; Ford v. Cartersville (Mayor), H State v. Byers, 67 Md. 706. 84 Ga, 213 ; State v. Buchanan, 24 14 People v. Bennett, 54 Barb. 480, W. Va 362. It is not a remedy for 158 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 128. common council of the city ; l issue a tax duplicate for the tax on real estate in the county without adding to the valu- ation a per cent, added by a state board of equalization which was not legally constituted ; 2 reduce the assessed value of realty in a town as determined by the board of supervisors, 3 and include in the estimate of taxes a balance due on a claim previously allowed against the county. 4 When the assess- ment rolls have passed from the control of the assessors, no mandamus will issue to them relative to such matters. 5 Assessors of taxes must, prior to any judicial construction, in the discharge of their duties obey the law as construed by the governor of the state. If such construction is plainly wrong, a mandamus will not issue to an assessor to obey it, not on account of the assessor, but in order not to cause expensive litigation, which might grow out of an act clearly illegal ; if such construction of the law by the governor is not plainly wrong, the court will not pass on it until a proper case is brought before the court by parties inter- ested therein. 6 An assessor will not be required to place on his tax duplicate certain taxes levied by a city, when such taxes exceed the rate of taxation allowed by law. 7 When the act calls for discretion and judgment, as the cor- rection of an error in a tax duplicate, this writ will be re- fused. 8 § 128. Mandamus relative to subscriptions by munici- pal corporations to railroads, etc. — From time to time acts of the legislature have been passed which authorized municipal corporations to subscribe to the stock of railroads and similar enterprises, and to issue their bonds in payment thereof. Questions have arisen under such acts, wherein the assistance of the courts has been sought to enforce the i Albany (Com. Council), Ex 328 ; People v. Westchester (Sup'rs), parte, 3 Cow. 358. 15 Barb. 607. 2 Hamilton v. State, 3 Ind. 452. 6 State v. Buchanan, 24 W. Va. 3 Kidley v. Doughty, 77 Iowa, 226. 362. 4 State v. Cathers, 25 Neb. 250. 7 State v. Humphreys, 25 Ohio 5 State v. Archibald, 43 Minn. St 520. 8 Lynch, Ex parte, 16 S. C. 32. § 128.] TO PUBLIC OFFICERS AND CORPORATIONS. 159 duties imposed thereby on municipal coporations. "When a municipal corporation is authorized to subscribe to the stock of a certain corporation after a favorable public vote on the question, such vote creates no contract with that corporation, and the municipality is not bound to issue bonds on tender of stock, 1 unless the law makes it the duty of the proper municipal officers to make the subscription and issue the bonds, when such vote is in favor of making the subscription. 2 When the subscription is once made, a mandamus will lie to compel the municipality to issue its bonds to pay for such subscription, 3 or to take steps to raise the money due therefor in accordance with the stat- ute, 4 since such duty then becomes imperative. 5 The mu- nicipality may impose conditions to its subscription though the law authorizing the subscription is silent on the subject, and the relator must show compliance therewith before he can obtain a mandamus to compel the subscription or issue of the bonds. 6 A mandamus to compel the issuance of bonds in accordance with a subscription was refused, because the vote authorizing the subscription was taken before the proper papers were filed, which was contrary to the express provisions of the law. 7 A proposition of a rail- road, when accepted by town officers, becomes a contract under the law allowing a subscription to such railroad, with a condition precedent that the voters vote for such proposition. If they affirm it, it becomes binding on both parties, and, upon a tender of the stock, a mandamus will i Union P. R E. v. Davis Co. 4 Clarke Co. (Just.) v. Paris, etc. (Com'rs), 6 Kans. 256 ; People v. Co., 11 B. Mon. 143. Fort Edward (Trustees), 70 N. Y. 28 ; S Cincinnati, etc. R. R v. Clinton State v. Roscoe (Town), 25 Minn. Co. (Com'rs), 1 Ohio St 77 ; Osage 445, Valley, etc. R R v. Morgan Co. 2 People v. Dutcher, 56 111. 144; (Co. Court), 53 Mo. 156. People v. Waynesville (Town), 88 6 People v. Dutcher, 56 HI. 144; 111. 469; People v. Glann, 70 111. People v. Waynesville (Town), 88 232; People v. Holden, 91 111.446. 111. 469; People v. Glann, 70 EL 3 Atchison, etc. R R v. Jeffer- 232 ; People v. Holdeu, 91 111. 446. son Co. (Com'rs), 12 Kans. 127. ' Essex Co. R R v. Lunenburgh (Town), 49 Vt 143. 160 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 129. lie to compel the issue of the bonds. 1 An ordinance by a city, pursuant to express legislative authority, expressly obligated the city to issue its bonds to a railroad as bonus, if the railroad did certain things. A compliance by the railroad will create a binding obligation, and the city must issue its bonds, or it may be compelled to do so by man- damus. 2 But when a town is authorized to assist in build- ing a railroad, its agreement to issue bonds therefor must be complete before the construction of the railroad, since it has no authority to assist a railroad already constructed. 3 § 129. Mandamus to leyy a tax to pay debts, when au- thority to make a levy is granted or is implied.— When a municipal corporation has legally incurred a debt, which a court will never compel it to do, 4 justice requires that the debt should be paid ; and when there are officers whose duty it is to see that such debts are paid, they will be required to exercise their powers for that purpose. Such powers generally consist of an authority to levy taxes to procure money for such payment. When an application is made for a manilam us to compel the levy of a tax to pay a debt, it must first be shown that the respondents have power under the law to levy a tax to pay the indebtedness in ques- tion, for an officer cannot be required by this writ to do any act not authorized by law. He can only levy a tax in the manner and to the amount prescribed by law. 5 It must be shown in each case that the officers have power to levy taxes to pay the claim in controversy before they will be ordered to make the levy. If the statute requiring the levy of a tax is itself void, there being no duty to levy a tax, a mandamus to compel a levy will be refused. 6 When a i State v. Jennings, 48 Wis. 549. 26 Iowa, 515 ; Polk v. Winett, 37 2 State v. Lake City, 25 Minn. 404 Iowa, 34 ; State v. Kenning ton, 10 3 State v. Highland (Town), 25 Rich. (N. S.) 299 ; United States v. Minn. 355. Macon County, 99 IT. S. 582 ; War- * People v.Hyde Park, 117111.462. ren Co. (Sup'rs) v. Klein, 51 Miss. 5 Sup'rsv. United States, 18 Wall. 807; Butz v. Muscatine (City), 8 71 ; State v. Rainey, 74 Mo. 229 ; Wall. 575. Clay Co. v. McAleer , 115 U. S. 616 ; 6 State v. Tappan, 29 Wis. 664 Coffin v. Davenport (City Council), § 129.] TO PUBLIC OFFICERS AND CORPORATIONS. 161 municipal corporation has authority to create a debt or to incur an obligation to carry out any public object, or to spend a large sum of money on a variety of public works without any provision providing the means therefor, or to contract a debt by the issue of negotiable securities, such authorization implies and carries with it the power to adopt the ordinary means employed by such bodies to raise funds for the execution thereof, though the law authorizing the creation of the debt is silent on that subject, unless such funds are otherwise provided, or the law conveying the author- ity, or some general law in force at the time, clearly mani- fests a contrary intention ; and the ordinary means in such cases is taxation. 1 Since the usual means of providing the funds is by taxation, a power to subscribe for railroad stock does not carry a power to issue bonds, but only a power to raise the money bv taxation. 2 When the law under which the debt was created specifically provides that taxes shall be levied to pay the same, a mandamus will issue to compel the levy of the necessary tax. The writ has been issued to enforce the express provisions of the law in that respect, and to compel the levy of a tax to pay the expenses of con- structing public buildings; 3 to pay for the construction of a harbor; 4 to build a school-house as requested by the elect- ors of the town ; 5 to create a fund to pay a certain indebt- edness;- to raise the amount of money for educational purposes which the board of education had determined to be necessary ; T to compel a sheriff, as required by an act of 1 United States v. New Orleans. » Manor v. McCall, 5 Ga. 522; 98 U. S. 381 ; United States v. Lin- Tarverv. Tallapoosa (Com'rs Court), coin Co. (Just), 5 Dill, 184 ; Com. v. 17 Ala. 527 ; Stevenson v. Summit Allegheny (Com'rs), 37 Pa. St. 277 ; (Dist. Town), 35 Iowa, 462. State v. New Orleans (City), 34 4 state v. Milwaukee (City), 25 Wis. La. An. 477; Com. v. Allegheny 122. (Com'rs), 43 Pa. St. 400 ; Ralls Co. 5 Cooper v. Nelson, 38 Iowa, 440. Ct. v. United States, 105 U. S. 733 ; b Wilkinson v. Cheatham, 43 Ga. Eufala (City Council) v. Hickman, 258. 57 Ala, 338. 7 state v. Smith, 11 Wis. 65. 2 Kelley v. Milan, 127 U. S. 139; Norton v. Dyersburg, 127 U. S. 160. 11 102 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 130. the legislature, to levy a tax to pay a certain judgment ; ' to pay a judgment obtained in a federal court against a city; 2 to pay municipal bonds; 3 to pay interest on municipal bonds; 4 to pay the damages assessed for property taken for the opening of a street 5 or a highway, 6 and to pay the bounties promised to soldiers. 7 In some cases, where the liability of the municipality on its bonds was questioned, or the validity of the bonds themselves in law or in fact, or the validity of the claim for the payment whereof the levy and collection of a tax was provided, the courts, when from the showing made the question of liability appeared doubt- ful, have refused to issue the writ, till a judgment had been first obtained on the asserted obligation. 8 When it is made the duty of a county board of supervisors to raise a certain sum of money as other charges are levied and collected, it is incumbent on them to levy a tax for that purpose. 9 § 130. Claims must he legally established before a man- damus will issue to compel the levy of a tax for their payment. — Since this writ issues only to enforce plain duties, it will not go against a public board or officer to levy a tax to pay a certain claim, unless it is manifest that such claim is a legal charge, and that the amount thereof 1 Bassett v. Barbin, 11 La. An. Fla. 451 ; Williamsport (City) v. 672. Com., 90 Pa. St. 498; Maddox v. 2 State v. Madison (City), 15 Wis. Graham, 2 Mete. (Ky.) 56 ; Robin- 30. son v. Butte Co. (Sup'rs), 43 Cal. 3 Com. v. Pittsburgh, 88 Pa St. 353; State v. Clinton Co. (Com'rs), 66 : United States v. Jefferson Co., 6 Ohio St. 280. 5 Dill. 310 ; State v. Davenport 5 State v. Keokuk (City), 9 Iowa, (City), 12 Iowa, 335; Flagg v. Pal- 438; Higgins v. Chicago (City), 18 myra (Town), 33 Mo. 440 ; Morgan 111. 276. v. Com., 55 Pa. St. 456. 6 State v. Wilson, 17 Wis. 687. < State v. Gates, 22 Wis. 210 ; Com. 7 State v. Harris, 17 Ohio St. 608. v. Pittsburgh (Select Council), 34 6 Com. v. Pittsburgh (Select Coun- Pa, St. 499 ; Meyer v. Porter, 65 cil), 34 Pa. St. 496 ; State v. Mani- Cal. 67 ; Pegram v. Cleveland Co. towoc (Mayor), 52 Wis. 423 ; State (Com'rs), 64 N. C. 557 ; State v. Board of Education v. West Point, Beloit (Sup'rs), 20 Wis. 79 ; State v. 50 Miss. 638. New Orleans (City), 34 La. An. 477 ; 9 People v. Columbia Co. (Sup'rs), Columbia Co. (Com'rs) v. King, 13 10 Wend. 363. § 130.] TO TUBLIC OFFICERS AND CORPORATIONS. 163 has been so established that it cannot be legally contro- verted. The proof of the validity of such claim should be equivalent to a debt of record or the judgment of a court. 1 Unadjusted claims must first be audited and ordered to be paid. 2 If, however, the law under which a debt was con- tracted specially provides that a tax shall be levied for its payment, a mandamus will be granted for that purpose without the necessity of first adjudicating and auditing the claim. 3 Absolute and unconditional obligations, already as- certained and audited, are in themselves on their face an order and authority to the proper officer to pay them, and upon his refusal a mandamus will lie to compel the levy of a tax to pay them, if the public corporation meets its obli- gations by taxation. 4 Therefore a mandamus will issue to compel the levy of a tax to pay claims which have been allowed by the county commissioners 5 or b}^ a township board/ For the same reason a mandamus lies to compel the levy of a tax to pay a judgment, which itself is a judicial auditing of a claim. 7 Ordinarily the writ will not lie to en- 1 Cabaniss v. Hill, 74 Ga. 845 ; Miss. 542 ; Warren Co. (Sup'rs) v. State v. McLeod Co. (Com'rs), 27 Klein, 51 Miss. 807 ; Police Board v. Minn. 90. Grant, 9 Sm. & M. 77. Contra. - Leach v. Fayetteville (Com'rs), People v. Clark Co. (Sup'rs), 50 111. 84 N. C. 829; State v. Clay Co., 46 213. Mo. 231 ; Coy v. Lyons (City Coun- 6 Stevenson v. Summit (Dist cil), 17 Iowa, 1; Mansfield v. Fuller, Town), 35 Iowa, 462; Hosier v. 50 Mo. 338 ; School Dist v. Boden- Higgins Town Board, 45 Mich. hamer, 43 Ark. 140; State Board 340; State v. Perrysbnrg Township Ed. v. West Point, 50 Miss. 638. (Board of Educ), 27 Ohio St 96. 3 State v. Pacific (Town Trustees), Contra, State v. Pacific (Town 61 Mo. 155; Coy v. Lyons (City Trustees), 61 Mo. 155. Council), 17 Iowa, 1; State Board 'State v. Johnson Co. (Board of Ed. v. West Point, 50 Miss. 638. Equal.), 10 Iowa, 157 ; Cromartie v. 4 Leach v. Fayetteville (Com'rs), Bladen (Com'rs), 85 N. C. 211; 84 N. C. 829. People v. San Francisco (Sup'rs), 21 5 Jefferson Co. v. Arrghi, 51 Miss. Cal. 668; Dearing v. Shepherd, 78 667 ; Klein v. Smith Co. (Com'rs), Ga. 28 ; Gooch v. Gregory, 65 N. C. 54 Miss. 254; Rodman v. Larue Co. 142; Lutterloh v. Cumberland Co. (Just), 3 Bush, 144; People v. (Com'rs), 65 N. C. 403; George's Livingston Co. (Sup'rs), 68 N. Y. Creek, etc. Co. v. Allegany Co. 114; Beard v. Lee Co. (Sup'rs), 51 (Com'rs), 59 Md. 255; Palmer v. 164 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 131. force a judgment, but it lies against a public corporation, since there is no other remedy, either because an execution is not allowed by law, 1 or it has been returned nulla hona? It must, however, appear that the proper officers have power to levy taxes; 3 otherwise the writ will be refused. 4 Also, to prevent a failure of justice, a writ of mandamus will issue to compel the levy of a tax to pay a claim on which a suit cannot be brought; 5 as when the relator has a claim only on a special fund, which is in the custody of the county court, in which case the writ will issue to audit and pay or provide for the payment of such claim." § 131'. In a m and am ns on a judgment is the latter con- clusive? — Upon an application for a mandamus to compel the levy of a tax to pay a judgment, it is too late to urge that the relator was not entitled to his judgment, 7 that the municipality has no power to levy the tax demanded, 8 or that the coupons sued on were invalid: such objections must be urged before a judgment is obtained. So defenses, which were urged in the suit in which the judgment was obtained, cannot be urged again in a mandamus proceeding to compel the payment of the judgment. 9 When, however, Stacy, 44 Iowa, 340 ; State v. Gates, 2 Fisher v. Charleston (Citj), 17 22 Wis. 210 ; Coy v. Lyons (City W. Va. 595 ; Britton v. Platte City, Council), 17 Iowa, 1 ; Huntington 2 Dill. 1 ; Fisher v. Charleston v. Smith, 25 Ind. 486 ; Boynton v. (Mayor), 17 W. Va. 628. Newton (Dist. Town), 34 Iowa, 510; 3 state v. Milwaukee (City), 20 Butz v. Muscatine (City), 8 Wall. Wis. 87. 575; United States v. Buchanan 4 state v. Maysville, 12 S. C. 76. Co., 5 Dill. 285; United States v. 5 Klein v. Smith Co. (Sup'rs), 54 Sterling (City), 2 Biss. 408 ; United Miss. 254. States v. Galena (City), 10 Biss. 263 ; <> Mansfield v. Fuller, 50 Mo. 338 ; Olney (City) v. Harvey, 50 111. 453 ; State v. Bollinger Co. (Just), 48 State v. Milwaukee (Com. Council), Mo. 475. 20 Wis. 87; Galena (City) v. Amy, 7 State v. Gates, 22 Wis. 210. 5 Wall. 705; Norris v. Baltimore 8 United States v. New Orleans, (City), 44 Md. 598. 98 U. S. 381 ; Ralls Co. Court v. • Duncan v. Louisville (City), 8 United States, 105 U. S. 733. Bush. 98; Olney (City) v. Harvey, 9 City v. Sansum, 87 I1L 182. 50 111. 453 ; Hughes v. Craven Co. (Com'rs), 107 N. C. 598. § 132.] TO PUBLIC OFFICERS AND CORPORATIONS. 165 a party asks for a mandamus to enforce the payment of his judgment against a municipality on coupons cut from its bonds, and is compelled to go behind his judgment in order to obtain the remedy pertaining to the bonds, the court cannot decline to take cognizance of the fact that the bonds are utterly void, and will be compelled to refuse the writ to make the officers levy a tax to pay coupons cut from those bonds, since the writ cannot confer any authority on the taxing officers in addition to what they had before. 1 § 132. In a mandamus to levy a tax to pay a demand, public necessities must be first considered.— In ordering the payment of, or the levy of, a tax to pay a claim, the courts will not allow public interests to suffer in order to protect a private interest : when they conflict, the latter will be compelled to yield. A mandamus will not be issued to compel a municipal corporation to pay a claim, when the funds on hand are required for its ordinary and necessary expenses, and the diversion thereof would tend to disor- ganize and disrupt such municipality; 2 but the municipality may be ordered to pay over to the relator its surplus, 3 or the surplus arising from year to year, and it may be en- joined from spending any money except for its ordinary current expenses. 4 When a municipal corporation is called upon to levy a tax to pay a claim against it, and its power of taxation is limited as to the amount of tax it can levy, the proceeds of such taxation will be first applied to the payment of its ordinary and necessary expenses; 5 and it is a sufficient reply to an application for such a mandamus, that all the money that can be so raised is absolutely re- quired for such expenses. 6 AVhen a debt is payable out of i Brownsville v. Loague, 129 U. S. 4 Corpus Christi (City) v. Woess- 493. ner, 58 Tex. 462. 2Williamsport (City) v. Com., 90 5 Von Hoffman v. Quincy (City). Pa. St. 498; State v. Macon Co. 4 Wall. 535; Coffin v. Davenport Court, 68 Mo. 29 ; Grant v. Daven- (City Council), 26 Iowa, 515. port (City), 36 Iowa, 396. 6 Clay Co. v. McAleer, 115 U. S. » State v. Shreveport (City), 29 La 610; Coffin v. Davenport (City An. 658. Council), 26 Iowa, 515; Cromartie v. Bladen (Com'rs), 85 N. C. 211. 1 1GG TO PUBLIC OFFICERS AND CORPORATIONS. [§ 133. the yearly income of a municipality, the court may require the return to show what the income is, and how it is ex- pended, since the court will allow none of it to be employed for other than ordinary purposes so long as creditors have a claim thereto. 1 If it appears that the property of the municipality is undervalued in the assessment, the court will order the tax to be levied. 2 When a levy is ordered in order to pay a certain demand, it is not sufficient to make a general levy which includes the amount of sucl demand, but there must be a special levy to pay that particu- lar demand, and the proceeds of the levy must be set apart to discharge the claim. 3 When a municipality is not au- thorized to levy a tax sufficient to discharge a claim in full, the court will order it to pay a proportion thereof each year, and to levy a tax sufficient for that purpose, and will not require the relator to bring successive actions for a man- damus.* When the proper officers knowingly levy a tax insufficient to discharge a claim, they may be compelled by mandamus to make a larger levy. 5 If the levy has been made and the proper officer is proceeding in the collection thereof with such dispatch as the law requires and permits, the relator cannot complain. 6 Should the tax not produce a sufficient amount to pay the claim as ordered, the relator is not compelled to wait till the balance can be collected from delinquents, but may apply for another mandamus? §133. Mandamus to collectors of revenue.— A man- damus is the more efficient and appropriate remedy to com- 1 Beaulieu v. Pleasant Hill (City), 5R bmson v. Butte Co. (Sup'rs), 4 McCrary, 554. 43 Cal. 353. 2 Coffin v. Davenport (City Coun- « State v. Davenport (City), 12 cil), 26 Iowa, 515. Iowa. 3*35. 3 State v. Davenport (City), 12 "Fisher v. Charleston (City), 17 Iowa, 335. w - Va - r>95 '■> Fisher v. Charleston * Coy v. Lyons (City Council), 17 (Mayor), 17 W. Va. 028. It lias Lowa, 1 ; Coffin v. Davenport (City been held that the relator must first Council), 26 Iowa, 515; United proceed against the t.ix collector to States v. Galena (City), 10 Diss. 263 ; compel him to collect all of the tax state v. Weir (Neb., Sept. 22, 1891), already levied. Duperier v. Iberia 49 N. W. Rep. 785. Parish (Police Jury), 31 La. An. 709. § 134.] TO PUBLIC OFFICERS AND CORPORATIONS. 167 pel collectors of public revenue to proceed to perform their duty. 1 It lies to compel a tax collector to make to a purchaser at a tax sale a deed to the land sold ; ' 2 but if such deed is based on an irregular assessment and will con- vey no title, the writ will be refused. 3 When, however, the act sought is not an official duty, its performance will not be enforced by a mandamus. When a county collector of taxes is allowed a percentage on the delinquent taxes collected, which does not go into the county treasury, and with which he is not charged, the county auditor cannot be required, at the relation of his predecessor, to draw a warrant on him for such percentage belonging to such pred- ecessor, but collected by him. The proper remedy is for the predecessor to bring suit against him for the money so collected. 4 § 131. Mandamus to obtain possession of public funds. An officer, who is entitled to the possession of public funds which are in the custody of another officer, may obtain them by the writ of mandamus? The writ has been issued : to compel a tax collector to pay money into the public treasury, when he failed to do so within the time allowed him by law ; 6 to compel a county treasurer to pay to the proper local officers the amount of liquor taxes to which they w r ere entitled by law; 7 to compel a town treasurer to pay township library funds to the treasurer of the board of school inspectors ; 8 to compel a county treasurer to pay to the township officers the money raised by taxation for its use; 9 to compel a county treasurer to pay over money in his hands collected for and belonging to the treasurer of a 1 State v. Whitworth, 8 Lea, 594. vided by law, the writ was refused. * State v. Mantz, 62 Mo. 258 ; Kid- State v. Boullt, 26 La An. 259. der v. Morse, 26 Vt. 74. 7 East Saginaw v. Saginaw Co. » Bosworth v. Webster, 64 Cal. 1. Treas., 44 Mich. 273. * Thomas v. Hamilton Co. (Audi- s People v. Mahoney, 30 Mich. 100. tor), 6 Ohio St. 113. » Cass Township v. Dillon, 16 5 Hon v. State, 89 Ind. 249. Ohio St 38 ; State v. Hoeflinger. « People v. Austin, 46 Cal. 520. 31 Wis. 257. Where another remedy was pro- 168 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 135. district school board ; l to compel the collectors of the taxes of different wards to pay to the trustees of the public schools all the money raised by taxation for such purposes ; 2 to com- pel the trustee of a township to pay over to the school trustees of a town, incorporated out of a part thereof, its proportion of the school funds raised by taxation ; 3 and to compel a tax collector to pay the taxes, collected to make payments on bonds issued in aid of a railroad, to the railroad commissioners of the town. 4 Though the officer has already paid the funds to the wrong officer, yet a mandamus will run against him, although he has by his action exposed himself to loss or made his duty difficult or inconvenient. 5 § 135. Mandamus to disbursing officers. — A writ of mandamus will lie to compel a public disbursing officer to pay accounts out of the public funds in his hands, when such accounts have been allowed by the proper officers or tri- bunals, and no duty devolves upon him except the minis- terial duty of making the payment. 6 When, however, such disbursing officer refuses to pay such accounts believing them to be illegal, or that the auditing officers had no ju- risdiction in the matter, the court on an application for a mandamus to compel payment will investigate the subject as to the legality or jurisdiction but not as to the amount of the allowance, and will refuse the application if the ground of objection is proven to be correct. 7 When such dis- bursing officer has no funds on hand applicable to claims 1 State v. Burkhardt, 59 Mo. 75. Lawrence, 6 Hill, 244 ; Com. v. 2 State v. Hammell, 31 N. J. L. Johnson, 2 Binn. 275; Hendricks 446. v. Johnson, 45 Miss. 644 ; Keller v. 3 Johnson v. Smith, 64 Ind. 275. Hyde, 20 Cal. 593 ; State v. Earle, 42 4 People v. Brown, 55 N. Y. 180. N. J. L, 94 ; Baker v. Johnson, 41 5 People v. Brown, 55 N. Y. 180. Me. 15 ; People v. Palmer, 52 N. Y. 6 Johnson v. Campbell, 39 Tex. 83; 83: State v. Gandy, 12 Neb. 232 Thomas v. Smith, 1 Mont. 21 ; State Huff v. Knapp, 5 N. Y. 65 ; Q. v v. Callaway Co. (Treas.), 43 Mo. 228 ; Oswestry (Treas.), 12 Q. B. 239 Day v. Callow, 39 Cal. 593 ; People Needham v. Thresher, 49 Cal. 392. v. Johnson, 100 111. 537; People See § 103. v. Edmonds, 15 Barb. 529; People "State v. Callaway Co. (Treas.), v. Edmonds, 19 Barb. 468 ; People v. 43 Mo. 228 ; People v. Lawrence, 6 § 135.] TO PUBLIC OFFICERS AND CORPORATIONS. 1G9 of the nature of that for which payment is sought, and it so appears by the officer's return, the writ of mandamus to compel payment will be refused. 1 He will not be ordered to pay the claim out of moneys subsequently coming to his hands, because he is not at the time derelict in his duty and not amenable to the writ. 2 Where, however, the offi- cer has erroneously paid out the money on warrants not properly chargeable to that fund, 3 or the money has been improperly transferred on his books to another fund, 4 the writ will issue, and he may be required to correct his books accordingly; the writ may issue for the express purpose alone of compelling a transfer of funds from one account to another on the books of a disbursing officer. 5 When with a view to an allowance of interest the law requires a treas- urer, who fails to pay a warrant for lack of funds, to make an indorsement on the warrant of that fact, he may be re- quired by the writ of mandamus to perform that duty. 6 If any duty devolves on the officer besides payment, as if he must first determine the validity of the claim, the writ of mandamus will not lie to compel him to pay the claim. He may require it to be adjudicated first. 7 When a salary is fixed by law, it need not be adjudicated or audited. 8 Though a city maybe liable for the damages sustained while it hesi- tates whether to abandon condemnation proceedings or to pay the damages assessed, yet a mandam/us will not lie to compel the payment of such damages till they have been ascertained and a judgment rendered therefor. 9 When the Hill, 244 ; Keller v. Hyde, 20 Cal. 52 N. J. L. 69 ; Rice v. Walker, 44 593; People v. Wendell, 71 N. Y. Iowa, 458; Williamsport (City) v. 171 ; State v. Hastings, 10 Wis. 518. Com., 90 Pa. St. 498. 1 People v. Stout, 23 Barb. 338; & State v. Stone, 69 Ala. 206. People v. Frink, 32 Mich. 96 ; State 6 Needham v. Thresher, 49 Cal. 392. v. Smith, 8 S. C. 127 ; Mitchell v. ' State v. Snodgrass, 98 Ind. 546. Speer, 39 Ga. 56; Day v. Callow, 39 » State v. Starling, 13 S. C. 262. Cal. 593. See § 105. 2 Day v. Callow, 39 Cal. 593. 9 Norris v. Baltimore (City), 44 3 People v. Stout, 23 Barb. 338. Md. 598. 4 State v. Union (Town Council) 170 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 135. statute contains the conditions for payment out of a certain fund, such payment may be enforced by mandamus} When a municipal charter makes it the duty of the treasurer to pay the interest on certain bonds, as it falls due, out of a fund provided for that purpose, a mandamus lies to compel such payment. 2 When the legislature, having the power, appro- priates money to pay for work of public necessity which was done under an invalid contract, a disbursing officer can- not object that the state was not bound to pay, or that the legislature was not fully informed, and refuse to pay, and a mandamus will issue to compel him to make payment. 3 It is the ministerial duty of a county treasurer, which may be enforced by mandamus, to pay a judgment against the county, when the board of supervisors of the county have resolved not to appeal. 4 This writ has been issued to a county treasurer : to sell land for delinquent taxes and to give the purchaser a receipt for the money paid by him ; 5 to pay out to the proper person money for the particular pur- pose for which the legislature gave it to the county; 6 to issue his warrant for the collection of a tax ; 7 to assign the certificate of sale of land for taxes; 8 to pay over to a judg- ment creditor the money collected to pay his judgment, 9 and to pay to a purchaser of land at a tax sale on redemp- tion thereof such money as was received by him at such redemption. 10 The writ has been issued to the treasurer of a town: to issue his warrant of distress against a col- lector of taxes for neglecting to collect a school district tax, 11 and to pay it over in the time fixed in the assess- or's warrant ; M to a school fund commissioner to pay over money declared by judgment to be due to the re- i Sessions v. Boykin, 78 Ala. 328. ' People v. Halsey, 37 N. Y. 344. 2 Meyer v. Porter. 65 Cal. 67. 8 State v. Bowker, 4 Kans. 114; 3 People v. Schuyler, 79 N. Y. 189. State v. MagiU, 4 Kans. 415. 4 Bank of California v. Shaber, 9 Brown v. Crego, 32 Iowa, 498. 55 Cal. 322. 10 Murphy v. Smith, 49 Ark. 37. 5 State v. Helmer, 10 Neb. 25. UTremont School Dist. v. Clark, 6 Pike Co. (Com'rs) v. People, 11 33 Me. 482. 111. 202. u Waldron v. Lee, 5 Pick. 323. § 136.] TO PUBLIC OFFICERS AND CORPORATIONS. 171 lator out of funds in his possession; 1 and to a town treas- urer to deliver bonds to water commissioners whose duty it was to sell them and who were entitled to their cus- tody. 2 The writ of mandamus has been refused: to com- pel loan commissioners to pay certain bonds in gold coin, when the only funds in their hands for that purpose were legal tender notes ; 3 to compel a county treasurer to pay certain county orders, when other older county orders re- mained unpaid, which would exhaust all the money in his hands and which by law were payable before those in suit ; 4 to compel the pa} r ment of a claim from a certain assess- ment fund, when, in a suit brought by a tax-payer to recover the portion of such fund paid by him under a levy, the as- sessment was declared to be invalid; 5 to a city auditor to pay claims prior to their audit and approval by the city council as required by ordinance; 6 and to compel a county treasurer to pay a claim, w T hen he had in good faith, before the issue of the alternative writ, paid over all the funds in his hands to his successor in office. 7 In accordance with a firmly established principle, when from extraneous circum- stances a well-founded doubt arises, either to as to the right of the applicant to receive or of the officer to pay, the man- damus will be refused. 8 In some cases the writ has been refused, though we believe contrary to the weight of au- thority, because an action would lie on the officer's bond for neglect of duty, 9 or because he rendered himself, by such refusal to do his duty, liable to attachment or indict- ment. 10 § 136. Mandamus concerning the payment of salaries. This writ is the appropriate remedy to compel a municipal i Hillis v. Ryan, 4 G. Greene, 78. * State v. Lynch, 8 Ohio St 347. 2 Pearsons v. Ranlett, 110 Mass. 8 People v. Johnson, 100 111.587. 118. 9 State v. Bridgman, 8 Kans. 458 ; 3 People v. Cook, 39 Cal. 658. State v. McCrillas, 4 Kans. 250. 4 Mitchell v. Speer, 39 Ga. 56. Contra, Sessions v. Boykin, 78 Ala 5 People v. East Saginaw, 40 Mich. 328. 336. ^King v. Surrey (Treas.), 1 Chit. « Dubordieu v. Butler, 49 CaL 512. 650. 172 TO PUBLIC OFFICERS AND CORPORATIONS. [§ 136. corporation, or an officer thereof, to audit the account of a public officer for his salary, or to draw a warrant therefor, or to pay such a warrant. 1 It is considered that it would be a great hardship to compel a public officer to bring suit for hn salary. 2 When such salary is fixed by law, it is not necessary to audit it, since the auditing officers have no discretion to allow or reject it. 3 Some courts, ignoring the delay, expense and uncertainty as to results, have refused the writ in such cases, because the object of the writ is to obtain money, and the same object might be attained by a suit against the municipality or on the bond of the delin- quent officer. 4 Such decisions controvert the proposition, that, when a claim has been allowed by the proper author- ity, the duty of an auditing officer to draw a warrant there- for is merely a ministerial duty, which will be enforced by a mandamus; b and it controverts the proposition that, when accounts have been allowed by the proper officers or tri- bunals, the duty of payment by a public disbursing officer is merely ministerial, and that a mandamus will lie to com- pel the performance of such duty. 6 ' Huff v. Knapp, 5 N. Y. 65. State v. Hannon, 38 Kans. 593 ; 2 McBride v. Grand Rapids (City), People v. New York (Mayor), 25 47 Mich. 236. Wend. 680 ; People v. Thompson, 3 State v. Starling, 13 S. C. 262. 25 Barb. 73. See § 17. 4 State v. Lincoln (Mayor), 4 Neb. 5 See § 126. 260 ; Lynch, Ex parte, 2 Hill, 45 ; « See § 135. CHAPTER 11. THE USE OF MANDAMUS, WHEN THE RIGHT TO A PUBLIC OFFICE OR TO MEMBERSHIP. OR TO AN OFFICE, IN A PUB- LIC CORPORATION, IS CONCERNED. § 137. Right to disfranchise a member of a public corporation. 138. Mandamus to order elections. 139. Mandamus to count the votes cast at an election. 140. Mandamus to canvassing boards to issue a certificate of elec- tion. 141. Mandamus to swear an officer elect into office. 142. Mandamus in favor of one holding the certificate of election. 143. Mandamus to put into office not granted, when there is a de facto incumbent 144. Whether mandamus lies to put one into office pending a con- test. 145. Mandamus to compel an officer elect to assume the duties of the office. 146. Mandamus is allowed in some states to try the title to an office. 147. When a public officer may be removed from an office. 148. Mandamus lies to restore an officer wrongfully removed from office. 149. Mandamus will not lie to seat an officer who may be removed at once. 150. Mandamus when an officer not removed but another party in- trudes himself. 151. Mandamus when removal from office is discretionary. 152. Party having the prima fade title to an office can enforce his rights as such officer by the writ of mandamus. 153. Subject continued, 154. Mandamus for books and paraphernalia of office by party with the prima facie title. 155. Subject continued. 156. Mandamus not lie to private individual to surrender office books, etc. § 137. Right to disfranchise a member of a public cor- poration. — The writ of mandaimis has often been resorted to in order to determine the right to hold a public office, 174 MANDAMUS — RIGHT TO PUBLIC OFFICE. [§ 138. or to hold a membership, or an office, in a public corpora- tion. It was decided in an early case, that no freeman of any corporation could be disfranchised by the corpora- tion, unless such power was given to it by express words in its charter, or was authorized by prescription, except in the case of conviction of a felony in a court of law. 1 In America no such question seems ever to have been raised. 2 In England such power has been claimed. If, however, the disfranchisement is wrongful, the party may be restored to his membership by the writ of mandamus. 3 So when a person has a right to be admitted to the freedom of a pub- lic corporation, he may resort to this writ; 4 but he cannot avail himself of such assistance, unless the duty of admis- sion is imperative on the corporate officers. 5 Though the words disfranchisement and amotion are often used inter- changeably, disfranchisement properly refers to a removal from membership in a corporation, and amotion only to a removal from an office, leaving the membership unaffected. §138. Mandamus to order elections.— Boards or offi- cers, whose duty it is to order elections, whether the law requires them to order elections at a certain time, 6 or to fill vacancies which have occurred in offices, 7 may by mandamus be forced to discharge this duty. If, however, an election has been held and its validity is a doubtful question, 8 or there is already a de facto incumbent, the writ will be re- i Bang's Case, 11 Coke, 93; King eQibbs v. Bartlett. 63 Cal. 117; v. Doncaster (Mayor), 2 Ld. Raym. McConihe v. State, 17 Fla. 238 ; Reg. 1564. v. Bradford (Mayor), 4 Eng. L. & E. 2 Com. v. Guardians of the Poor, 6 194. S. & R. 469, may be such a case, but I State v. Rahway (Com. Council), from the report it seems uncertain 33 N. J. L. 110 ; R. v. Wigan (Corp.), whether the coloration was a pub- 2 Burr. 782; King v. Grampond, 6 lie one and whether the relator had T. R. 301. been disfranchised or removed from » Rex v. Oxford, 6 A. & E. 349 ; an office. Frost v. Chester (Mayor), 5 El. & 3 Middleton's Case, Dyer, 333. Bl. 531 ; Rex v. Bankes, 3 Burr. * Townsend's Case, 1 Lev. 91. 1452 : State v. Dunn, 1 Minor (Ala.), s Rex v. Eye (Bailiffs), 1 B. & C. 46 ; Com. v. Co. Com'rs, 5 Rawle, 45. 85. ;; i :;',», 140.] mandamus— right to public office. 175 fused. 1 In such cases the writ is refused, because there is another remedy by quo warranto to oust the incumbent. 2 When, however, there is no other way to decide the right to the office, the writ will be granted. 3 The writ, ordering a new election, will also be granted when it is plain that such prior election was merely colorable and void; 4 and it has been granted when it was plain that the person already elected was not qualified for the office, but it was not is- sued till, on a rule to show cause why he should not appear to be sworn into office, he had made return admitting his ineligibility. 5 § 139. Mandamus to canvass the votes cast at an elec- tion.— When the proper officers refuse to canvass the votes cast at an election, a mandamus will lie to compel them to do so, 6 and if an ordinance is first necessary, a city council will be required to pass such an ordinance. 7 § 140. Mandamus to canvassing hoards to issue a cer- tificate of election.— A mandamus will lie to compel the canvassing officers to issue a certificate of election to a person who was duly elected to an office, though another person may have received the certificate and may be in pos- session of the office. 8 Such action does not determine the right to the office, but puts the party in a position to assert his rights, which in some cases otherwise he could not do, and a quo warranto may still be necessary to oust the in- cumbent. 9 Where, however, a quo warranto would still be i Q v. St. Martins (Guar, of Poor), ■ King v. Bedford (Corp.), 1 East, 17 Ad. & E. (N. S.) 149; State v. 79 ,.....„ Dunn, 1 Minor (Ala.), 46. « Q- v. Leeds (Mayor), 11 Ad. & E. 2 Rex v. Oxford, 6 A. & E. 349; 512. Frost v. Chester (Mayor), 5 El. & Harrow v. People 8 Colo. 417 B1 531 8 People v. Rives. 27 111. 242 ; State so t St. Martins (Guar, of Poor), v. Williams, 99 Mo. 291; French 17 Ad. & E. (N. S.) 149. v. Cowan, 79 Me. 426; State v. 4 Rex v Oxford, 6 A. & E. 349; Newman, 91 Mo. 445; Strong, Peti- Frost v. Chester (Mayor), 5 El. & turner, 20 Pick. 484 ; Ellis v. Bristol Bl 531; Rex v. Stoke-Damerei (Co. Com'rs), 2 Gray, 370. (Minister), 5 A. & E. 584; Rex v. » Ellis v. Bristol (Co. Com rs) 2 Cambridge (Mayor). 4 Burr. 2008; Gray, 370; Strop g, Petitioner, 20 Rex v. Bankes, 3 Burr. 145 : ; Bui- Pick. 484 ; People v. Hilhard, 29 111. ler's Nisi Prius, 197, 198. 413. 176 MANDAMUS EIGHT TO PUBLIC OFFICE. [§§ 141. 142. required, and under their laws nothing would be attained bv the issue of the writ, it has been refused. 1 If the board or tribunal has by law the power to determine all questions as to the election and the returns and the qualifications of the candidates, under the general rule that the action of a body possessing deliberative functions cannot be reviewed by mandamus, such body cannot be required to grant a certificate of election to a person, nor to admit him to the office, when it has already decided adversely to his claims. 2 § 141. Mandamus to swear an officer elect into office.— So this writ may be used to compel the proper officers to swear into office one who has been properly elected or ap- pointed thereto; * but it will not lie in the case of an officer against whom a judgment of ouster has been given, since such judgment is a bar to such an application so long as it is in force. 4 § 142. Mandamus in favor of one holding the certifi- cate of election. — A person who has the commission for or the proper certificate of election to an office, has the prima facie right to the office, 5 and he may resort to a man- damus to enforce his rights in connection therewith. Such evidence of title can only be called in question in a direct proceeding to determine the right to the office by quo war- ranto or in a contest for the office. 6 When a person has been duly elected or appointed to an office, he may use this remedy to obtain admission to such office, when admission has been refused by those having authority in the matter. 7 i Sherburne v. Horn, 45 Mich. People v. Billiard, 29 111. 413 ; State 160; State v. Rodman, 43 Mo. 254. v. Dusman, 39 N. J. L. 677. 2 Vicksburg (Mayor) v. Rain- fi State v. Camden Co. (Chosen water, 47 Miss. 547; Peabody v. Freeholders). 35 N. J. L. 217; State Boston (School Com.), 115 Mass. v. Warrick Co. (Com'rs), 124 Ind. 383 ; King v. London (Mayor), 3 B. 554 ; State v. Saxon, 25 Fla. 792 ; & Ad. 255. Driscoll v. Jones (S Dak., Mar. 1, 3 King and Knapton, 2 Keb. 445 ; 1890), 44 N. W. Rep. 726. Contra, King v. Bedford Level, 6 East, 356 ; Pucket v. Bean, 11 Heisk. 600. King v. Bedford, 1 East, 79 ; Rex v. < Felts v. Memphis (Mayor), 2 Ward, 2 Stra. 893. Head, 650 ; Burr v. Norton, 25 Conn. 4 King v. Serle, 8 Mod. 332. 103 ; Chumasero v. Potts, 2 Mont. 5 Warner v. Myers, 4 Oreg. 72; 242. §143.] MANDAMUS — EIGHT TO PUBLIC OFFICE. 177 So a person, who has been elected to a membership in a board, may compel the other members to recognize him as a member thereof, and to admit him to their deliberations. 1 If, however, there is already a de facto incumbent of the office, in those states where the courts refuse to try the title to an office by this writ, it cannot be resorted to in order to obtain the office itself. 2 However it is a common prac- tice to grant the writ to the party holding the commission or certificate therefor, to enable him to obtain the books, papers or insignia of office, or the possession of property or buildings properly in the custody of such officer, or to enable him to enforce other rights growing out of his offi- cial position. 3 § 143. Mandamus to put into office not granted when there is a de facto incumbent.— When there is a party already in possession of the office, holding it under color of right, the courts will refuse to issue the writ, and will re- quire the party to resort to a quo warranto first in order to determine the right of the incumbent. 4 They refuse to allow this writ to be used to try the title to an office. The reasons for this ruling are, because mandamus never lies i Q. v. Leeds (Mayor), 11 A. & E. French v. Cowan, 79 Me. 426 ; State 512 ; Lawrence v. Ingersol, 88 Tenn. v. Gasconade Co. Court, 25 Mo. Ap. 52 ; 'smith v. Eaton Co. (Sup'rs), 56 446 ; State v. Taaffe, 25 Mo. Ap. 567 ; Mich. 217 ; Douglas v. Essex Co. People v. New York, 3 John. Cas. People v. State Ins. Co., 19 Mich. 392. ' 10 Firemen's Ins. Co. v. Baltimore (Mayor), 23 Md. 296. 11 Mount Moriah C. Asso. v. Com., 81 Pa. St. 235. 12 Railroad Com'rs v. Portland, etc. R. R, 63 Me. 269. 13 State v. New Haven, etc. R R, 41 Conn. 134. • J Mobile, etc. R R v. Wisdom, 5 Heisk. 125. 196 MANDAMUS TO PRIVATE CORPORATIONS. [§ 160. stop their railroad trains at a certain place as required by- law. 1 § 160. Mandamus to compel the transfer of its stock by a private corporation. — The writ of mandamus has often been invoked to compel the transfer of the stock of private corporations. As a general rule the writ has been denied in such cases. Sometimes it has been denied, because third parties, not before the court, claimed to be the owners, but the reason generally assigned was, that it was not a favorite chattel, so there was no proemium affectionis involved in the case, but any other stock of the same company would do, which could be purchased in the market ; consequently a suit for damages was an adequate remedy. 2 The writ has, however, been allowed in several cases by reason of certain statutory provisions. Where stock was sold on ex- ecution the law required the proper officer of the corpora- tion to make the transfer, and the transfer was compelled, because such officer became pro hac vice a public officer; 3 but a mandamus would not be granted in case of a private sale. 4 So a mandamus was granted to a corporation to allow a sheriff to transfer on the books of the corporation stock sold by him, in accordance with the provisions of law ; • New Haven, etc. R. R. v. State. State v. People's, etc. Assoc, 43 N. 44 Conn. 376. J. L. 389 ; Freon v. Carriage Co., ^ Murray v. Stevens, 110 Mass. 95; 42 Ohio St 30. Contra, State v. State v. Guerrero, 12 Nev. 105 ; New Orleans R. R., 38 La, An. 312. Birmingham F. I. Co. v. Com., 92 The writ was allowed where there Pa. St 72; People v. Parker Vein was no dispute as to the ownership. Coal Co., 10 How. Pr. 543 ; Shipley State v. New Orleans, etc. Co., 25 v. Mechanics' Bank, 10 John. 484 ; La. An. 413. It was also said to be Durham v. Monumental, etc. Co., 9 allowable, where there was a clear Oreg. 41 ; Baker v. Marshall, 15 legal right and no other remedy, Minn. 180 ; Townes v. Nichols, 73 but was denied in that case, because Me. 515 ; Stackpole v. Seymour, 127 the relator had only an equitable Mass. 104 ; State v. Warren, etc. title, being an assignee merely by Co., 32 N. J. L. 439; Kimball v. delivery. Burnsville I. Co. v. State, Union Water Co., 44 Cal. 173; 119 Ind. 382. Firemen's I. Co., Ex parte, 6 Hill, » Bailey v. Strohecker, 38 Ga 259. 243 ; State v. Rombauer, 46 Mo. 155 ; 4 Bank of State v. Harrison, 66 Tobey v. Hakes, 54 Conn. 274 ; Ga. 696. § 1C0.J MANDAMUS TO PEIVATE CORPORATIONS. 197 but the court stated that the general rule was otherwise. 1 The writ was granted in a case, where the court placed stress on the lack of any other sufficient remedy under the circumstances of that case and the fact that it was a quasi- public corporation (a railroad), and seemed to imply that it might not be granted in the case of a purely private cor- poration. 2 In granting a mandamus to compel a transfer of stock as provided by statute, the court maintained that damages were not an adequate remedy, because the relator did not thereby obtain specific relief, which included a right to be a stockholder and to participate in the exercise of its franchises. 3 A suit for damages does not alwavs seem to be adequate, since with the damages obtained the relator may not be able to buy the stock desired, or it may be im- portant to have the stock in order to be eligible to office, 4 or to obtain control of the organization of the corporation in order to prevent unskilful management of its affairs. As to the latter trouble a relator is not without relief, where courts of equity have jurisdiction to compel a corporation to recognize, as a member thereof, one who has the equi- table title to any of its stock. In such a case a court of common law could reasonably, in the exercise of its discre- tion, refuse to grant a mandamus. The English courts at first refused to grant a mandamus to compel a private cor- poration to enter on its books the transfer of any of its stock, claiming that such matters were private, and that this writ was confined to matters of public and general im- portance. 5 This position they have long since abandoned, and have often issued this writ to compel such transfer. 6 They now refuse the use of the prerogative writ for that 1 State v. First Nat. Bank, 89 Ind. 5 King v. London Assur. Co., 1 302. D. & R. 510. 2Townshend v. Mclver, 2 Rich. 6 Reg. v. Midland, etc. R R, 9 (N. S.) 25. L. T. R (N. S.) 151 ; King v. Wor- 3 Memphis, etc. Co. v. Pike, 9 cester, etc. Co., 1 Man. & Ry. 529 ; Heisk. 697. Norris v. Irish L. Co., 8 EL & BL 4 Freon v. Carriage Co., 42 Ohio 512. St. 3a 198 MANDAMUS TO PRIVATE CORPORATIONS. [§ 161. purpose, since the same end may bo attained by the new writ of mandamus lately authorized. 1 § 161. Mandamus to obtain an inspection of the oooks of a private corporation.— A stockholder of a private cor- poration may by the writ of mandamus, if such privilege is denied him, obtain an inspection of the corporate books. He must, however, show that he desires such inspection for some just or useful object, or some injury which he will sustain if he is not allowed to inspect them. 2 He will then be allowed to inspect them at the proper place and on proper occasions, 3 but only to the extent necessary for the purpose indicated. 4 It has been granted to enable him to obtain the facts correctly to enable him to sue the cor- poration and its directors for abuse of their positions. 5 The writ will not be granted when it is asked for mere curios- ity, 6 or for speculative purposes, 7 or personal ends, 8 or upon merely alleging grounds on which the relator believes that the corporate affairs have been improperly conducted and the officers unduly chosen, and complaining of misgovern- ment in some particular instances not affecting the parties themselves or any matter then in dispute, 9 or if there is fair ground to believe the relator intends to make an improper use of the information he is seeking. 10 A creditor may also in this mode obtain inspection of corporate books, when they contain information which by law he is entitled to ob- tain. When by law an execution creditor of a corporation, whose lands were not sufficient to pay its debts, was allowed to issue an execution against those stockholders who had not fully paid for their stock, he was granted &, mandamus i Q. v. Lambourn V. R. R., 22 Q. 5 Com. v. Phoenix Iron Co., 105 B. Div. 463. Pa. St. 111. 2 Hatch v. City Bank, 1 Rob. 470 ; « People v. Walker, 9 Mich. 328. Sage v.Lake Shore, etc. R. R, 70 7 Phoenix Iron Co. v. Com., 113 N. Y. 220. Pa. St. 563. 3 People v. Walker, 9 Mich. 328; 8 People v. Northern P. R. R, 18 Sage v. Lake Shore, etc. R R, 70 Fed. Rep. 471. N. Y. 220. 9 Kimg v. Merchants' T. Co., 2 4 King v. Merchants' T. Co., 2 Barn. & Ad. 115. Barn. & Ad. 115. 10 State v. Einstein, 46 N. J. L. 479. § 161.] MANDAMUS TO PEIVATB CORPORATIONS. 199 to compel the corporation to let him inspect its register of shareholders. 1 A corporation cannot refuse such inspection because it does not keep proper books, and has other en- tries and transactions therein. It must allow an inspection of such books as it does keep of transactions, which a stock- holder has a right to know. 2 Though a corporation must keep account books at its office in the state of its creation, open to the inspection of all its stockholders, yet so long as it is lawful for it to do business in another state it may keep the necessary books there, and it suffices if monthly statements are sent to the home office, which are properly entered and are open to the inspection of all the stockhold- ers. 3 When, however, a stockholder is entitled to such in- spection by statute as a matter of right, he need assign no reason for his request. 4 A director of a corporation, being- one of the officers who conduct and manage its affairs, is entitled of right to an inspection of its books and need as- sign no reason for his wish to do so. 3 1 Q. v. Derbyshire, etc. R. R., 3 El. mandamus would not go at the ca- & Bl. 784. price of the curious or suspicious, 2 People v. Pacific M. S. Co., 50 and denied the writ Com. v. Em- Barb. 280. pire P. R. R., 134 Pa. St. 237. Where 3 Pratt v. Meriden C. Co., 35 Conn, the statute allowing the inspection 36. of the books of a private corpora- 4 State v. St. Louis, etc. R Co., 29 tion by its stockholders did not in- Mo. Ap. 301 ; State v. Sportsman's, elude the book of which an inspec- etc. Assoc, 29 Mo. Ap. 326 ; Winter tion was sought, the general rule, v. Baldwin. 89 Ala. 483 ; Foster v. that a good motive for the inspee- White, 86 Ala. 467 ; Lyon v. Amer- tion must be shown, was held to ican Screw Co., 16 R. I. 472. A state apply. Lyon v. American Screw constitution required a corporation Co., 16 R I. 472. Where the statute to keep a list of stockholders open allowed a stockholder to inspect the to the inspection of stockholders corporate books, it was held that and creditors. The court declared it was not necessary for him to neg- that it did not say that such list ative the existence of an improper could be copied, and, even if it did motive in his pleadings, since such say so, it could only be done for a improper motive was a matter of reasonable and proper purpose. The defense. Foster v. White, 86 Ala. relator said he wished to confer 467. with the other stockholders about 5 People v. Mott, 1 How. Pr. 247 ; suing to set aside a lease made by People v. Throop, 12 Wend. 183. the company. The court said a 200 MANDAMUS TO PRIVATE CORPORATIONS. [§§ 162, 163. § 162. Mandamus lies to common carriers to prevent discrimination. — This writ has often been used to compel common carriers, and other corporations subject to similar obligations, to discharge the duty imposed upon them by the statutory or common law of treating all persons alike, of extending to all without discrimination the use of their services, or of their appliances or property. 1 It has been used: to compel telephone companies to put telephones in private offices and to furnish the like service to all parties ; 2 to compel a railroad company to issue to relator a commu- tation ticket, which thev refused to do on account of an- other transaction ; 3 to compel a gas company to furnish gas upon the payment of all money due them from the appli- cant; 4 to compel an irrigation company to furnish water to those coming within the class of the community for whose alleged benefit it was created, 5 and to compel a railroad company to carry freight for all on the same terms. 6 This writ may also be used under similar circumstances against those who have by its use impressed their property with a public use. This subject has been already consid- ered. 7 § 163. Mandamus will not lie to a private corporation when there is another remedy. — When there is another adequate remedy, a mandamus will not run against a pri- vate corporation, in accordance with the general principles governing its issuance. A private corporation will not be 1 State v. Delaware, etc. R. R, 48 6 People v. New York, etc. R R. N. J. L. 55 ; Central, etc. Co. v. 28 Hun, 543. This has been denied State, 118 Ind. 194. on the ground that by its charter 2 State v. Nebraska Tel. Co., 17 such carriage was not compulsory. Neb. 126 ; Hockett v. State, 105 Ind. Robins, Ex parte, 3 Jur. 103. As to 250; Central, etc. Co. v. State, 118 a private party it has been held Ind. 194 ; Central, etc. Co. v. State, that an action for damages was 123 Ind. 113. a sufficient remedy (People v. New 3 State v. Delaware, etc. R R, 48 York, etc. R R., 22 Hun, 533), but N. J. L. 55. that the state might have a man- 4 People v. Manhattan, etc. Co., damns. 28 Hun, 543. 45 Barb. 136. » Ante, §§ 25, 20. 5 Price v. Riverside, etc. Co., 56 Cal. 431. §§ 164, 165.] MANDAMUS TO PRIVATE CORPORATIONS. 201 required to pay a dividend it has declared, since an action at law is an adequate remedy ; ' nor will a railroad company be thus compelled to receive and transport freight without charging discriminating rates, when the statute makes it liable to the party injured thereby in double the over- charge. 2 § 164. Mandamus will not go against a private corpora- tion when it is financially unable to do the act desired. — A mandamus was refused to compel the completion of a railroad according to charter, when the corporation had faithfully expended all the money it was allowed to raise, and its power to condemn lands had expired. 3 A railroad company was not required to build a bridge over its track, when it had no power to borrow money, and its share cap- ital was spent and its borrowing powers were exhausted. 4 It has been asserted that when a corporation is wholly un- able to discharge its duties to the public, a quo warranto and not a mandamus is the proper remedy. 5 § 165. Mandamus to compel officers of private corpora- tions to discharge their duties. — The writ of mandamus may be used to compel the officers of private corporations to discharge the duties incumbent upon them. They have been thus required to call an election of their successors in office as provided by law, 6 in the mode prescribed by their by-laws, when the law made it incumbent on them so to 1 People v. Central, etc. Co., 41 unless it had funds to fence it, and Mich. 166. that if it did anything it should do 2 State v. Mobile, etc. R R, 59 Ala. all. Q. v. Luton Roads (Trustees?, 321. 1 A.&E.(N.S.)812. Of course such 3 Q. v. London, etc. R R., 16 Ad. a writ cannot be enforced, but in pro- & E. (N. S.) 864. ceedings thereunder for contempt 4 Bristol, etc. R R, In re, 3 Q. B. in disobeying the writ, the court can Div. 10. Where an application was consider the question of impossibil- made to compel a turnpike com- ity and the prior actions of the offi- pany to fence its road through A.'s cers of the company. grounds where it had constructed 5 Ohio, etc. R R. v. People, 120 it, and the company returned that 111. 200. it had no funds, the court granted 6 State v. Lady Bryan M. Co. (Bd. the writ, stating that the company Trustees), 4 Nev. 400. should not have taken the ground 202 MANDAMUS TO PRIVATE CORPORATIONS. [§ 1G0. do, 1 and the failure to adopt a by-law on the subject did not prevent the issuance of the writ. 2 An unreasonable post- ponement of an election, required by law to be held annu- ally, is equivalent to a failure to call such election. 3 Where a law plainly required the board of trustees of a canal com- pany to pay interest on its stock, and it was admitted they had sufficient money for the purpose, a mandamus was is- sued to compel them to make such payment. 4 This writ has been issued to compel : the master to put the corporate seal to a presentation to a living ; 5 the keepers thereof to put the common seal of a university to the instrument of appointment of its high steward; 6 the warden of a college to put its common seal to its answer in a suit, though such answer was contrary to his own separate answer in that suit ; 7 and an officer to deliver up the books, papers, accounts, etc., of the corporation to his successor in office or to the corporation itself. 8 Where its secretary bought books for a corporation and entered therein its minutes, and its sub- scriptions were entered there also, he was not allowed to retain them when he went out of office, though the corpo- ration had not paid him therefor. The books had become corporate books. He had bought the books for the corpo- ration and looked to it to pay him therefor. 9 § 166. Mandamus to restore to member ship in private corporations. — The writ of mandamus has often been used to compel private corporations to restore to membership corporators whom they have wrongfully disfranchised or suspended. 10 As a general rule the power to disfranchise a i State v. Wright, 10 Nev. 167. 99 Ind. 133; St. Luke's Church v. 2 People v. Cummings, 72 N. Y. Slack, 7 Cush. 226 ; Rex v. Wildman, 433. 2 Stra. 879 ; State v. McCullough, 3 3 Mottu v. Primrose, 23 Md. 482. Nev. 202; Anon., 1 Barn., K. B. 402. 4 State v. Wabash, etc. Canal 9 State v. Goll, 32 N. J. L. 285. (Trustees), 4 Ind. 495. 1° Burt v. Grand Lodge Masons, 66 5Q. v. Kendall, 1 Q. B. 366. Mich. 85 ; Crocker v. Old South So- 6 Rex v. Cambridge (V. Chan.), 3 ciety, 106 Mass. 489 ; Fritz v. Muck, Burr. 1647. 62 How. Pr. 69 ; Med. etc. Soc. v. 7 Rex v. Windham, Cowp. 377. Weatherly, 75 Ala. 248; Sibley v. "Fasnacht v. German L. Assoc, Cartaret Club, 40 N. J. L. 295 ; Black, § 166.] MANDAMUS TO PRIVATE CORPORATIONS. 203 corporator, unless it be expressly conferred by statute, ex- tends only to three causes: 1. For infamous offenses, and then only after a conviction by a court of law. 2. For offenses against the corporation itself, which tend to its destruction. 3. For offenses of a mixed nature, which are compounded of the two first named. 1 It is also considered that, where the power of disfranchisement is conferred on a corporation by general terms, its power is no greater than that conceded as inherent in all corporations, as just mentioned. 2 A joint-stock company, or one owning prop- erty, cannot expel a member or forfeit his stock for any cause, unless such power is expressly conferred on it by its charter. 3 When a court is called upon to restore by man- damus a person to his membership in a corporation, it will only inquire whether the cause or ground of disfranchise- ment is legally sufficient, and whether the proceedings were regular according to, and tested by, the charter and by- laws of the corporation.' If such facts exist, the court will not interfere, as it will not review the merits of the case, etc Soc v Vandyke, 2 Whart. 309; » Evans v. Philadelphia Club, 50 Pelle v Mechanic ' Aid Soc, 22 Pa. St. 107; Mulroy v. Knights of 2 BO! Levin's B. Assoc, v. Honor, 28 Mo^ Ap. 463; We v. Benson, 76 Tex. 552 ; Allnutt v. Sub- Brownell, 2 Daly, 3 9,] People v. sidiarv etc Court, 62 Mich. 110. Con- N. Y. Com. Assoc, 18 Abb. Pr. 2.1 "aK expelled wrongfully from a Con, v. St. Patrick B. Assoc, 2 religious corporation, a mandamus Binn. 441. . to restore him to membership will » State v. Chamber of Commerce, not lie, since he has a right of ac- 20 Wis. 63. Hon Gainst any persons interfer- 3 Evans v. Philadelphia Club, 50 n^vX^ rights" People v. Ger- Pa. St. 107 ; People v. N. Y. Com man etc. Church, 53 N. Y. 103. A Assoc, 18 Abb. Pr. 271 ; Long Is and Corporator entitled to divide a cer- R R, In re, 19 Wend. 37 Tins is tain part of the profits of the cor- not the general view as to benevo- poration was suspended till he paid lent corporations winch own prop- a certain fine. A mandamus to re- erty for their own use. See §§ 4J, store him to his membership was 167. refused, because he might have an *Med. etc. Soc v. Weatherly, 75 action against those who might dis- Ala. 248; Com. v German Society turb him in the reception of his 15 Pa. St 251 ; Barrows v. Mass. share of the profits. King y. Free Med. Soc, 12 Gush. 402. Fishers (Company), 7 East, 353. 204 MANDAMUS TO PEIVATE COEPOEATIONS. [§ 166. but will allow the action of the corporation to be conclu- sive in that matter. 1 In mandamus proceedings to restore a person expelled from a corporation, the court will con- sider the legality of the action of the corporation, and in so doing will construe the by-law under which it acted in making the expulsion. 2 When a by-law is unreasonable, the courts will declare it to be void, and all proceedings thereunder to be invalid. 3 In construing such by-laws, the court will interpret them reasonably, if possible, not scruti- nizing their terms for the purpose of making them void, nor holding them invalid, if every particular reason for them does not appear. 4 The by-laws will not be sustained, unless they are reasonable and adapted to the purposes of the corporation. 5 A member of a corporation cannot be disfranchised, though a by-law of a corporation may so pro- vide : for uttering false and malicious charges against, or vilifying, another member, 6 since the corporation has noth- ing to do with private quarrels ; for not submitting his business controversies with other members to arbitration, 7 for every one has a right to resort to the courts of the land for the enforcement of his rights ; for not paying increased dues of membership, which had been so increased after the corporation had ceased to be operative, and when there 1 Leech v. Harris, 2 Brewst 571 ; Patrick B. Society, 2 Binn. 441 ; Society for Visit, v. Com., 52 Pa St. People v. Saint Franciscus, etc. Soc, 125 ; Med. etc. Soc. v. Weatherly, 24 How. Pr. 216. 75 Ala. 248 ; Com. v. Pike B. Soc, * Hibernia F. E. Co. v. Com., 93 8 Watts & S. 247 ; Anacosta Tribe Pa. St 264. v. Murbach, 13 Md. 91; Com. v. 5 People v. Medical Society, 24 German Soc, 15 Pa St. 251 ; Black, Barb. 570. etc. Soc. v. Vandyke, 2 Whart. 309 ; 6 Mulroy v. Knights of Honor, 28 King v. Cambridge (Chan.), 6 T. R. Mo. Ap. 463 ; Com. v. St. Patrick 89. B. Assoc, 2 Binn. 441; Fuller v. 2 State v. Georgia M. Soc, 38 Ga Plainfield A. School, 6 Conn. 532. 608 ; Med. etc Soc. v. Weatherly, 75 7 State v. Union M. Exchange, 2 Ala 248. Mo. Ap. 96 ; Savannah C. Exchange 3 State v. Union M. Exchange, 2 v. State, 54 Ga 668 ; State v. Cham- Mo. Ap. 96 ; Savannah C. Exchange ber of Commerce, 20 Wis. 63. v. State, 54 Ga 668; Com. v. St. § 166.] MANDAMUS TO PEIVATE CORPORATIONS. 205 was no occasion for such increase ; ' for neglect of official duty in not acting on committees ; 2 for rendering professional services for less compensation than the tariff of charges adopted by the corporation, since a by-law imposing such a tariff on the corporators is against public policy, and con- trary to law ; 3 for not taking the sacrament, though the corporation was a benevolent society, composed of the mem- bers of a certain church, because such action is contrary to the law of religious liberty ; 4 for not paying assessments imposed on the members of the corporation by an author- ity existing in another jurisdiction, since no domestic cor- poration can subject itself or its members to such alien authority; 5 for mere misemployment of money as one of the guardians of the poor ; 6 or for becoming a surety on the bond of a colored citizen, who has been elected to a public office, since such action is encouraged by the law. 7 In such proceedings the corporation must act in good faith, or its decree will be abrogated in a proceeding by mandamus to restore the expelled member. 8 On the other hand, when the corporation had the power of expulsion, and the by-law governing the case was reasonable and adapted to the pur- poses of the corporation, and the act charged was an offense against the corporation itself, the courts have refused to interfere to restore an expelled member. Where the charter of a benevolent society authorized it to expel members thereof for being engaged in scandalous or improper pro- ceedings which might injure its reputation, the court re- fused to restore a member who had been expelled for alter- ing a bill, and presenting it to the corporation as a claim 1 Hihernia F. E. Co. v. Com., 93 6 Com. v. Guardians of the Poor, Pa. St. 264. 6 S. & R. 469. 2 Fuller v. Plainfleld A. School, 6 " State v. Georgia Medical Soc, 38 Conn. 532. Ga. 608. 3 People v. Medical Society, 24 8 Mulroy v. Knights of Honor, 28 Barb. 570. Mo. Ap. 463 ; State v. Henry Clay 4 People v. Saint Franciscus, etc. Lodge (N. J., June 16, 1891), 22 Atl. Society, 24 How. Pr. 216. Rep. 63 ; Otto v. Journeymen, etc. 5 Lamphere v. Grand Lodge, etc., Union, 75 CaL 308. 47 Mich. 429. 206 MANDAMUS TO PKIVATE COEPOEATIONS. [§ 167. against it. 1 Charging a benevolent corporation with money which he had never expended for it is a good ground for the expulsion of a member, when such corporation has the power of expulsion. 2 A corporation, formed to establish a high moral standard among its members in conducting business operations, and to exercise some control over their trading transactions between themselves and with others, was sustained in its expulsion of a member for obtaining goods under false pretenses, because such member had vio- lated his duty toward the corporation. 3 Though the by-law may be reasonable and proper, yet the members of a corpo- ration will not be allowed, under the pretext of enforcing the by-law, to take personal or private revenge, or to make it the instrument of religious intolerance, or of political prescription ; and when it appears that under a by-law so used, a person has been expelled from a corporation, the courts will restore him to his membership by a writ of mandamus} § 167. Will mandamus lie to restore to membership in a private corporation when no pecuniary interests are involved? — Some courts have refused to issue a writ of mandamus to restore a person to his membership in a cor- poration when no pecuniary interest was involved. The writ is only used to protect a person from substantial in- jury, and the courts consider that he does not sustain any substantial injury by his loss of membership unless there was some pecuniary advantage arising to him therefrom. The franchise itself is property; the loss of membership by expulsion may be followed by very injurious indirect consequences, and the damages arising therefrom may be impossible of calculation. We think the weight of author- itv is in favor of the issuance of the writ in such cases. 5 iCom. v. Philanthropic Society, 4 State v. Georgia Med. Soc, 88 5 Binn. 486. Ga. 608. 2 Com. v. Guardians of Poor, 6 S. 5 See § 49, where the decisions are 6 R. 469. reviewed. 3 People v. New York C. Assoc, 18 Abb. Pr. 271. 168.] MANDAMUS TO PRIVATE CORPORATIONS. 207 § 168. What irregularities in expelling a member of a private corporation will vitiate such expulsion when it is reviewed by mandamus. — When the proceedings of a corporation by which a corporator was expelled were irreg- ular, as tested by its charter and by-laws, he may be re- stored to membership by a writ of mandamus} He cannot be expelled without any notice that such a proceeding is contemplated and without full opportunity to be heard in reply to the charge against him, since such a proceeding is abhorrent to all reason. 2 There must be some one to in- quire and determine when the facts exist which cause the forfeiture. 3 The expulsion of a member of a corporation 1 State v. Cartaret Club, 40 N. J. L. 295; People v. Musical, etc. Union, 118 N. Y. 101. 2 Pulford v. Fire Dept., 31 Mich. 458 ; State v. Temperance B. Ass'n, 42 Mo. Ap. 485 ; King v. Cambridge (Univ.), 8 Mod. 148; Delacy v. Neuse R. W. Co., 1 Hawks, 274 ; People v. San Franciscus, etc. Soc, 24 How. Pr. 216 ; Mulroy v. Knights of Honor, 28 Mo. Ap. 463. 3 Sibley v. Cartaret Club, 40 N. J. L. 295 ; Com. v. Pa. Ben. Inst.. 2 S. & R. 141. There are a number of cases which decide that benevo- lent corporations which contract to pay their members a certain insur- ance upon their deaths, the amount whereof is collected by assessment made after the death of the party insured, may provide by their by- laws that such insurance shall be forfeited without notice for non- payment of assessments within a designated time. The courts claim that such by-laws are necessary to keep alive such organizations. Mulroy v. Knights of Honor, 28 Mo. Ap. 463; Borgraefe v. Knights of Honor, 22 Mo. Ap. 127 ; Illinois, etc. Soc. v. Baldwin, 86 111. 479. All such by-laws which were adjudged to be reasonable and valid were confined to defaults on the part of the mem- ber himself. McDonald v. Ross- Lewin, 29 Hun, 87. Should such a by-law be presented whereby a member was ipso facto suspended and deprived of all claim for insur- ance by reason of a default of an officer of his subordinate lodge rel- ative to remitting the funds col- lected to the principal officers of the corporation, or otherwise, a differ- ent question would arise and such by-law would no doubt be held to be unreasonable and void. In the case of Peet v. Maccabees, 83 Mich. 92, a beneficiary certificate was con- sidered to be vitiated because the member to whom it was issued had died during the suspension of his subordinate lodge for failure of its officers to remit certain funds to the grand lodge of the order in ac- cordance with its by-laws. In that case, however, which was decided by a divided court, the suspension of the individual members did not go into effect till thirty days after the suspension, and the court con- sidered that it was to be supposed 208 MANDAMUS TO PEIVATE CORPORATIONS. [§ 1G8. has been set aside: because the objectionable words uttered at a meeting of the society for which he was expelled were not objected to or written down at the time as required by the by-laws; 1 he was not notified to appear and defend himself before the fine was imposed, for the non-payment of which he was expelled, his notice being to pay the fine or to show cause to the contrary ; 2 the fine was imposed without notice, formal complaint or trial; 3 the fine, for non-payment of which he was expelled, was imposed with- out a by-law defining the offense and imposing the penalty, and he was not furnished with a copy of the charges pre- ferred nor opportunity to be present at the taking of testi- mony against him, nor opportunity to offer testimony in his own behalf ; 4 the expulsion was by a part of the corpora- tors, whereas an expulsion must be by the body of the cor- porators, unless the charter otherwise provides; 5 the nec- essary proportion of the members did not vote for expulsion at the regular meeting when the matter was considered, though they so voted at a subsequent meeting; 6 the mem- ber was dropped without notice or opportunity to be heard. 7 When it appears that the member was not ex- pelled, but restrictions were placed on his attempts to ex- ercise certain rights claimed by him as a member of the corporation, and there is nothing to show that such restric- tions were placed upon him otherwise than in the adminis- tration of the internal discipline and government of the corporation under its by-laws and rules, a mandamus in his that the members of such lodge 3 State v. Milwaukee Cham. Com.. would during those thirty days be- 47 "Wis. 670. come aware of the suspension of * Erd v. Bavarian Assoc, 67 Mich. their lodge by general information, 233. by the non-receipt of notices of 5 State v. Chamber of Commerce. assessments and at their lodge meet- 20 Wis. 63; Evans V.Philadelphia ings. Club, 50 Pa, St. 107. 1 People v. American Institute, 44 «Com. v. Guardians of Poor, 6 S. How. Pr. 468. & R. 469. 2 People v. Benevolent Society, 3 1 Wachtel v. Noah Widows', etc. Hun, 361. Soc, 84 N. Y. 28 ; Pulford v. Fire §§ 169, 170.] MANDAMUS TO PRIVATE CORPORATIONS. 20 9 behalf will not lie. 1 Mere irregularities, however, leading up to the expulsion, will not vitiate the conclusion reached. 2 § 169. Expelled members must appeal to corporate ap- pellate tribunals before they can ask for a mandamus. — It is generally held that, when a corporator is aggrieved by those acting with authority in a corporation, he must appeal to the appellate tribunals provided by said corporation be- fore applying to the legal tribunals; 3 but he cannot be en- tirely prohibited from resorting to the legal tribunals. 4 In one case it was held that, having chosen his remedy by ap- peal to the corporate appellate tribunal, the party was bound by its decision. In this case such decision was un- necessary for the disposition of the case, and it seems to stand unsupported. 5 Where, however, the corporate au- thorities are without jurisdiction to try and expel the mem- ber on the charges preferred, their action is null and void, and he can at once resort to the legal tribunals to protect his rights, ignoring the corporate appellate tribunals. 8 § 170. Mandamus to restore a member will not issue when he may be legally expelled upon his restoration. — When a corporator has been disfranchised by irregular proceedings, but it appears that proper grounds exist for disfranchisement, the courts in their discretion will refuse to issue the writ of mandamus to compel a restoration Dept, 31 Mich. 458; Sibley v. Car- tra: Supreme Council v. Garrigus. taret Club. 40 N. J. L. 295 ; Riddell 104 Ind. 133. v. Harmony F. Club, 8 Phila. 310. •» Bauer v. Samson Lodge, 102 Ind. 1 Crocker v. Old South Society, 262; Poultney v. Bachman, 10 Abb. 106 Mass. 489. N. C. 252. Where the by-law pro- 2 Mulroy v. Knights of Honor, 28 vided that he should appeal to the Mo. Ap. 463. committee which expelled him, the 3 Screwmen's B. Assoc, v. Benson, court considered the chance of their 76 Tex. 552; Poultney v. Bachman, changing their action to be so re- 31 Hun, 49 ; German R. Church v. mote that it would not require such Com., 3 Pa. St. 282 ; Chamberlain appeal. Loubat v. Le Roy, 40 Hun. v. Lincoln, 129 Mass. 70; State v. 546. Henry Clay Lodge (N. J., June 16, 5 Burt v. Michigan G. Lodge, 66 1891), 22 Atl. Rep. 63 ; Oliver v. Mich. 85. Hopkins, 144 Mass. 175 ; Karcher v. e Mulroy v. Knights of Honor, 28 Supreme Lodge, 137 Mass. 368. Con- Mo. Ap. 471. 14 210 MANDAMUS TO PRIVATE CORPORATIONS. [§§ 171, 172. to membership. This writ is only sued to accomplish the ends of justice, and to attain substantial results. In such cases the restored member might be again expelled by reg- ular proceedings for the same offense, 1 since a void proceed- ing is no bar to a subsequent correct proceeding. 2 For similar reasons a corporation, which is required by law to admit to membership therein all persons possessing certain qualifications, will not be compelled by mandamus to admit one as a member, when it clearly appears that, if admitted, he would be at once liable to expulsion for gross ignorance or misconduct. 3 It has been considered that the records of the corporation must show the exact cause for the expul- sion of a member, and all the proceedings necessary to au- thorize such action, else the court will invalidate the pro- ceedings because it does not appear that they are legal and regular. 4 § 171. An action for damages for expulsion from a corporation is a waiver of all right to apply for a resto- ration by a mandamus. — In some cases parties expelled from membership in corporations have brought actions for the damages thereby sustained by them. Such action is based upon the theory that the plaintiff has lost his mem- bership and all its rights, and that he cannot be restored thereto, otherwise he has no cause of action. If his rights are not gone, and gone irrevocably, his petition is not true wherein he says he has been deprived of those rights. Therefore, in order to maintain such an action, he necessa- rily abandons all interest in the societ}^. It has accordingly been held that, by bringing such suit, the right to seek res- titution to membership by a writ of mandamus is waived. 5 § 172. Mandamus to admit to membership in private corporations. — Where by law a party is entitled to be ad- 1 People v. Anshei C. H. Cong., 37 3 p a ine, Ex parte, 1 Hill, 665. Mich. 542; State v. Lusitanian P. 4 People v. Mechanics' Aid Soc, Soc, 15 La. An. 73; State v. Tern- 22 Mich. 86. perance B. Ass'n, 42 Mo. Ap. 485. 5 State v. Slavonska Lipa, 28 Ohio 2 State v. Milwaukee Ch. of Com- St 665. merce, 47 Wis. 670. §§ 173, 174.] MANDAMUS TO PRIVATE CORPORATIONS. 211 mitted as a member of a private corporation, provided he possesses certain qualifications, a mandamus will lie to such corporation to admit to membership therein a person who possesses such qualifications. 1 A code of ethics adopted by such corporation prior to his admission to membership therein is no ground for the exclusion of an applicant. 2 § 173. Mandamus to restore or to admit an officer of a private corporation. — The power to remove one of its offi- cers from his official position for an adequate cause is an incident inherent to every corporation ; 3 but the exercise thereof does not affect the private rights of the corporator in the franchise. 4 Though the removal is irregular, the court will not grant a mandamus to restore the officer, un- less his tenure of the office is permanent. It will not be granted where the officer may be removed by a majority vote of the corporators, 5 nor where there are good causes for his removal, though he was removed by irregular pro- ceedings. 6 Where the power of amotion from office is dis- cretionary with the corporation, such power may be exer- cised without notice to the officer and without a hearing. 7 Where a party has been elected to an office in a private corporation, he may, by the writ of mandamus, compel it to admit and swear him into such office. 3 A mandamus will not lie to compel a private corporation to proceed to fill one of its offices, so long as there is a de facto incumbent thereof. The incumbent must first be ousted by a quo warranto. 9 § 174. Mandamus to benevolent associations to pay death losses. — In America a number of benevolent corpo- rations have been organized which contract to pay a cer- 1 Rex v. Askew, 4 Burr. 2186. 5 Evans v. Hearts of Oak B. Soc, ^People v. Medical Soc, 32 N. Y. 12 Jur. (N. S.) 163. 187. 6 Paine, Ex parte, 1 Hill, 665. 3 Evans v. Philadelphia Club, 50 7 Livingston v. Trinity Church Pa St. 107 ; White v. Brownell. 2 (Rector), 45 N. J. L. 230. Daly, 329. 8 King v. Bedford Level (Corp.), « Evans v. Philadelphia Club, 50 6 East, 356. Pa, St 107. 9 Harrison v. Simonds, 44 Conn. 318. 212 MANDAMUS TO PRIVATE CORPORATIONS. [§ 174. tain sum of money to designated parties upon the death of a corporator. These corporations possess no capital, but procure the money required to pay such death losses by assessments on all the corporators. The assistance of the writ of mandamus has often been sought to compel such corporations to levy assessments on their members in order to pay such losses. When the corporation denies all lia- bility, a suit must first be brought to determine the liabil- ity, and then a mandamus may be obtained to compel the corporation to levy an assessment to pay such judgment. 1 When the contract is an agreement to pay a certain sum of money, a suit therefor is an adequate legal remedy. 2 When the agreement is to pay the amount of an assess- ment, not exceeding a certain sum, a suit must first be brought to determine the amount of the liability. 3 Since a mandamus does not lie to enforce a private contract, a suit must be brought on the contract, 4 but when the local law allows it, a mandamus to compel the levy of the amount ascertained to be due may be asked for in such suit. 5 A corporation cannot by the form of its contract confer orig- inal jurisdiction on a court to enforce it by a mandamus proceeding. 6 The right to issue a mandamus to collect such claims can only be sustained on the theory that it is the legal duty of a corporation to pay its debts, and the courts will enforce such duties by compelling such corpo- ration to exercise its powers to obtain such money in the mode provided therefor. When the by-laws of such corpora- tion provide that the members shall be subject to but one assessment for each death loss, a mandamus will not lie to levy a second assessment when the first assessment has not realized money enough to pay the death loss in full. 7 1 Burland v. Northwestern, etc. 5 Hail v. Pottawattamie, etc. Co., Assoc, 47 Mich. 424. 74 Iowa, 39. 2 Excelsior, etc. Assoc, v. Riddle, 6 Burland v. Northwestern, etc. 91 Ind. 84. Assoc, 47 Mich. 424. 3 Burland v. Northwestern, etc. 7 People v. Masonic, etc. Ass'n, Assoc, 47 Mich. 424. 126 N. Y. 615. 4 Bates v. Detroit, etc Assoc, 47 Mich. 646. § 175.] MANDAMUS TO PRIVATE CORPORATIONS. 213 § 175. If a private corporation has a visitor, a man- damus lies only when he fails to act. — The writ of man- damus is never granted where there is another adequate remedy", nor when there is another tribunal or person with authority to give the proper redress. Visitors of corpora- tions have power to keep them them within the legitimate sphere of their operations and to correct all abuses of au- thority and to nullify all irregular proceedings. In America there are very few corporations which have private visitors, and in the absence of such the state is the visitor of all cor- porations. In England the founder of an eleemosynary corporation and his heirs and assigns are its visitors, while the king, who acts through the common-law courts, is the visitor of civil corporations, unless a visitor is expressly ap- pointed, and the ordinary is the visitor of all spiritual cor- porations. 1 The private laws of a corporation are to be judged by the visitor thereof, and the courts will not inter- fere in such cases, 2 as: to restore a person to his fellowship in a college, 3 to admit one chosen by a majority of the fel- lows to the mastership of a college, 4 and to admit one to the chaplaincy of an asylum whom the visitors had removed and to pay him the arrears of his salary. 5 When a visitor declines to hear an appeal, a mandamus will issue to com- pel him to hear it. When he has acted his judgment is final. 6 When a corporate duty devolves upon a person who is also the visitor of the corporation, the duty may be enforced by a writ of mandamus as though there were no visitor. 7 The i 1 Black. Com., 480, 481, 482 ; Rex * Dr. Patrick's Case, 1 Keb. 286, v. Chester (Epis.), Stra. 797; Rex v. 833, 1 Lev. 65, 2 Keb. 65. Chester (Bishop), 1 Wils. 206; Bar- 5Q. v. Middlesex (Just), 2 Ad. & kinson's Case, 3 Mod..265 ; King v. E. (N. S.) 433. St. Catharine's Hall, 4 T. R. 233. « King v. Worcester (Bishop), 4 2Walker'sCase, Cas. Temp. Hard. M. & S. 415; 6 Bacon's Ab., Title 212 ; Q. v. Chester (Dean), 15 Q. B. " Man." C. 2 ; Per Lord Holt in 513. Philips v. Bury, 2 T. R. 346 ; King 3 Parkinson's Case, 3 Mod. 265 ; v. Ely (Bishop), 5 T. R. 475. Appleford's Case, 1 Mod. 82 ; Dr. 7 Rex v. Chester (Epis.), Strange Widdiugton's Case, 1 Lev. 23 ; King 797. v. New College, 2 Lev. 14. 214 MANDAMUS TO PRIVATE CORPORATIONS. [§ 17C. visitor's duties are confined to the enforcement of the pri- vate laws of the corporation. When the laws of the land are disobeyed, the courts will take cognizance of the matter. A mandamus was issued to the officers of a college to com- pel them to remove fellows thereof who had failed to take a certain oath, as required by the law of the land. 1 § 176. Mandamus issues in ecclesiastical matters only when property rights are affected. — Applications have often been made to the courts for writs of ma.idamus rela- tive to the acts of ecclesiastical tribunals. Since in America there is no connection between church and state, the courts have no direct control over them as official bodies or as offi- cers, so the writ of mandamus will not run to them. But their actions may come in question where private corpora- tions have subjected themselves by their charters to the decisions of certain ecclesiastical tribunals, and the writ of mandamus is sought to compel such private corporation to take action contrary to the decisions of such tribunals. Since such corporations are by their charters subject to such ecclesiastical tribunals, it is the duty of their officers to obey the decrees emanating therefrom. When members of such corporations ask for a writ of mandamus to prevent the en- forcement of such decrees, the courts inquire first whether any rights of property of the relator are involved. The courts will not interfere unless the relator's rights of prop- erty will be affected by such action. 2 Though the relator's rights of property are involved in the proposed action, yet the judgment of the ecclesiastical tribunal is conclusive as to purely ecclesiastical offenses, if it had jurisdiction in the premises under the laws of the church organization which created it. 3 The courts will not review the decisions of 1 R. v. St. John's College, 4 Mod. Walker v. Wainwright, 16 Barb. 233. 486; Connitt v. Reformed, etc. 2 Livingston v. Trinity Church Church, 54 N. Y. 551 ; State v. (Rector), 45 N. J. L. 230 ; Bouldin v. Hebrew Congreg., 31 La. An. 205 ; Alexander, 15 Wall. 131; Sale v. German Reformed Church v. Com., Baptist Church, 62 Iowa, 26. 3 Pa. St. 282. 3 Chase v. Cheney, 58 I1L 509; § 177.] MANDAMUS TO PRIVATE CORPORATIONS. 215 ecclesiastical tribunals, nor inquire whether such decisions were justified by the truth of the case. 1 Such church tri- bunals are the best judges of what constitutes an offense against the word of God and against the discipline of the church. 2 Their decisions are also conclusive on doubtful and technical questions, involving a criticism of the canons, even though they may comprise jurisdictional facts. 3 The regularity of their proceedings will not be inquired into by the courts, since every competent tribunal must of neces- sity regulate its own formulas, 4 and the decree will be ac- cepted as conclusive proof of the matters therein contained. 5 The converse of these propositions is, that when property rights are involved and the church did not have jurisdiction under the rules of the church in the matter, the courts will issue the writ of mandamus in proper cases to prevent the enforcement of such decrees, provided the cases are such as fall within the principles under which such writs are issued. § 177. Mandamus to a foreign corporation.— Whether a writ of mandamus will run against a foreign corporation seems to be a questionable proposition. Under the com- mon law the officers of a foreign corporation did not rep- resent the corporation and were not recognized as such. 6 The attorneys or agents of such corporations, however, are recognized as such. 7 Where the state statute was broader than the common law, and authorized the use of the writ of mandamus to restore a person to the use and enjoyment 1 State v. Farris, 45 Mo. 183 ; Gros- 4 Harmon v. Dreher, 1 Speer's Eq. venor v. United Society, 118 Mass. Cas. 87. 78 ; Walker v. Wainwright, 16 Barb. 5 Bouldin v. Alexander, 15 Wall. 486 ; Harmon v. Dreher, 1 Speer's 131 ; Shannon v. Frost. 3 B. Mon. Eq. Cas. 87; State v. Hebrew 253. Congreg., 31 La, An. 205; Connitt « McQueen v. Middleton M. Co., v. Reformed, etc. Church, 54 N. Y. 16 John. 5 ; State v. Penn. R. R, 42 551. N. J. L. 490; State v. McCullough, 2 German R. Church v. Com., 3 3 Nev. 202. Pa. St. 282. 7 State v. McCullough, 3 Nev. 202 ; 3 Chase v. Cheney, 58 111. 509. McQueen v. Middletown M. Co., 16 John. 5. 216 MANDAMUS TO PRIVATE CORPORATIONS. [§ 177. of a right from which he was unlawfully precl tided by an- other person, such writ was issued to enable the agent of a foreign corporation to represent it instead of another person who claimed to be the proper representative. 1 But it has been decided that the rule of the common law is obsolete, and the writ of mandamus was issued against a foreign cor- poration doing business in the state, and was served on its officers within the state. 2 i State v. McCullough, 3 Nev. 202. 2 state v. Penn. R. R., 42 N. J. L. 490. CHAPTER 13. MANDAMUS TO CANVASSERS OF ELECTIONS. § 178. The duties of canvassing boards are ministerial. 179. When the canvassing board may reject, and when they must count, votes. 180. Will any evidence be received except the returns when a man- damus is asked for against the canvassers of an election? 181. A mandamus will issue to compel the proper officer to declare the result of the election. 182. Mandamus will issue to the canvassing board though they have already given another the certificate. 183. The peremptory writ will specifically direct the canvassing board what to do. 184. Mandamus will not lie when another remedy or the board had discretion or the writ was illegal. 185. By mandamus the canvassing board may be required to recon- vene and do their duty, though they have adjourned sine die. § 178. The duties of canvassing officers are ministe- rial.— The writ of mandamus has often been used to com- pel the performance of their duties by those officers who have had charge of elections and of the declaration of the results thereof. Such duties are very important and are vitally connected with the well-being of a republic, wherein the whole governmental forces are controlled by the results of elections. The law has wisely left but little to the dis- cretion of such officers, and has thereby subjected them to the supervision and control of the courts. It may be stated, as an almost invariable rule, that the duties of judges of elections and of canvassing boards are purely ministerial, and that the writ of mandamus lies to compel the proper performance thereof. 1 Where the system of registering 1 Wiliford v. State, 43 Ark. 62 ; 325 ; Jayne v. Drorbaugh, 63 Iowa, Dalton v. State, 43 Ohio St. 652 ; 711 ; State v. Williams, 95 Mo. 159 ; Calaveras (Co.) v. Brockway, 30 CaL Mackey, Ex parte, 15 S. C. 322; 218 MANDAMUS TO CANVASSEKS OF ELECTIONS. [§ 179. voters prior to the election has been adopted, the register of voters may be compelled by mandamus to register those applying therefor, who possess the qualifications required by law for registration, 1 or to place one's name on the voter's list when it has been improperly left off such list, 2 or to restore one to the registration list whose name has been improperly stricken therefrom, 3 unless such registering officers have been granted judicial power in such matters. 4 § 179. When the canvassing board may reject, and when they must count, votes. — In the various cases of mandamus which have arisen in connection with elections, the courts seem to have made no distinction in their rulings between the acts of the judges of the precincts, who receive and count the votes, and the acts of the boards canvassing the returns, since the writ is only applicable to their minis- terial acts, which in such cases are very similar; and herein we will also refer to them indifferently in all cases as can- vassing boards. It is the duty of a canvassing board to canvass all the votes cast. 5 Though their duties are con- sidered to be ministerial, yet certain of such duties are so far discretionary or judicial, that the courts will not inter- fere therein by mandamus; or, if they be considered to be ministerial, yet they are not plain, and the writ only runs relative to plain ministerial duties. Where a ballot was so marked that it required some judgment and discretion to Lyman v. Martin, 2 Utah, 136; 2 McCulloch et al, Re, 35 Up. Can. Clark v. McKenzie, 7 Bush, 523 ; (Q. B.) 449 ; Glalon v. Fairbairn, 30 State v. Gibbs, 13 Fla. 55; Heath, Low. Can. Jurist, 323; 31 id. 48. Ex parte, 3 Hill, 42; Lewis v. Mar- 3 Lamar v. Wilkins, 28 Ark. 34. shal Co. (Com'rs), 16 Kans. 102 ; Kis- * Freeman v. New Haven (Select- or v. Cameron, 39 Ind. 488 ; State men), 34 Conn. 406 ; Weeden v. v.Stearns, 11 Neb. 104; People v. Richmond (Town Council), 9 R I. Hilliard, 29 111. 413; Leigh v. State, 128. 69 Ala. 261 ; Clark v. Board Examin- & State v. Hodgeman Co. (Com'rs), ers, 126 Mass. 282 ; Luce v. Mayhew, 23 Kan. 264 ; People v. Grand Co. 13 Gray, 83; Smith v. Lawrence (Com'rs), 6 Colo. 202; State v. (S. Dak., June 19, 1891), 49 N. W. Stearns. 11 Neb. 104; State v. Pea- Rep. 7. cock, 15 Neb. 442; Privett v. Ste- 1 Davies v. McKeeby, 5 Nev. 369. vens, 25 Kan. 275. § 179.] MANDAMUS TO CANVASSERS OF ELECTIONS. 219 determine whether it had been scratched, the court refused to review, in a mandamus proceeding, the action of the can- vassing board thereon. 1 The same conclusion was reached relative to the determination of the board as to whether a certain word in the returns was forty or fifty. 2 A state- ment on the returns void on its face may be rejected by the canvassers ; 3 and they should reject ballots which are void on their faces, 4 or which do not conform to the plain provisions of the law, 5 and they may correct a mere cler- ical mistake in the footings which is apparent on the face of the returns. 6 A mandamus was refused to compel a can- vassing board to count certain returns as the election re- turns from a particular town, when such returns did not show in what year nor in what town the election was held, and when they did not appear to be a copy of the record of the town meeting. 7 A canvassing board must decide whether the returns submitted to them are genuine, intelli- gible, and properly authenticated ; 8 and it has been consid- ered that such papers must bear on their face substantially whatever the law has prescribed for their authentication as such returns; 9 but so strong is the disposition to confine the action of canvassing boards to the mere ministerial du- ties of counting the votes and certifying the result, and the unwillingness to accord to them any discretionary duties, that they have been denied the right to reject any returns unless they are absolutely so uncertain in their form and nature that they cannot be known as such, or the state- ment of the number of votes received by any person or ob- ject is so confused, or indefinite, or uncertain, that it can- i State v. Deane, 23 Fla. 121. GDalton v. State, 43 Ohio St. 652. 2 State v. Bailey, 7 Iowa, 390. 7 Luce v. Dukes Co., 153 Mass. estate v. State Canvassers, 36 108; 26 N. E. Rep. 419. Wis. 498. 8 State v. Marks, 74 Term. 12 ; * Oglesby v. Sigman, 58 Miss. State v. Gibbs, 13 Fla. 55. 502_ 9 Simon v. Durham. 10 Oreg. 52: • r > People v. Onondaga Co. (Board Luce v. Mayhew, 13 Gray, 83 ; State Canvassers, N. Y., Dec. 29, 1891), 29 v. Raudall, 35 Ohio St. 64. N. E. Rep. 327. 220 MANDAMUS TO CANVASSERS OF ELECTIONS. [§ 170. not be ascertained with sufficient clearness. 1 In fact it is asserted, that the return must be an absolute nullity, a thing void of all substance, with nothing in it, to allow the can- vassers to reject it; that, since such action will disfranchise the voters of a precinct, the courts will, as far as it may be without violence to the clear legislative intent, so construe election laws as to avert the disfranchisement of the legal electors of a precinct through the ignorance, neglect or fraud of election officers. 2 So if the returns upon their face are sufficiently authentic to show that they are genuine, 3 or when they are known to be the proper returns, the canvassers cannot pass on their sufficiency, and they must be counted. 4 The latter decisions are more in harmony with the necessities of the case. These duties are performed by men unlearned in the law, and during the hurry of an election; and though a certain amount of discretion is al- lowed to such officers, 5 yet such duties are considered to be ministerial and are reviewable by the writ of mandamus, and the least discretion possible should be allowed to such officers, and the true intent of the voters should be sus- tained so far as practicable. Such returns are not to be in- validated because they include more than the law requires. 6 The additional statements must be rejected as surplusage. 7 Thev can never be used to contradict the return itself. 8 When it was sought to compel the secretary of state to re- turn certain resolutions and papers, sent to him with the election returns, and to cause him to abstain and refrain from allowing such papers to be brought before the state board of canvassers, the writ was refused, because, such i State v. Bailey, 7 Iowa, 390; Drew v. McLin, 16 Fla. 17; State v. Hudmon v. Slaughter, 70 Ala. 546; Gibbs, 13 Fla. 55; Long v. State, 17 State v. State Canvassers (Board), Neb. 60. 17 Fla. 29. b state v - Ber S- 76 Ma 136> 2 Dalton v. State, 43 Ohio St. 652. ' Heatb. Ex parte. 3 Hill, 42 ; State i State v. Peacock, 15 Neb. 442. v. Berg, 76 Mo. 136 ; Dalton v. State, 4 State v. Marshall Co. (Judge), 7 43 Obio St. 652. I< iwa, 186. 8 State v - Stafce Canvassers, 36 Wis. 5 State v. Foster, 38 Ohio St 599 ; 498. § 170.] MANDAMUS TO CANVASSERS OF ELECTIONS. 221 papers not being proper parts of the return, the secretary of state had no official duty relative to them, and was at liberty to burn or destroy them as waste paper. 1 The board of county canvassers may be compelled by this writ to re- turn the election returns to the board of inspectors for the correction of certain clerical errors. 2 When it appears in a mandamus proceeding that certain returns, though on their face proper and valid, are the result of illegal action on the part of the canvassing board which prepared them, by which it departed from its sphere as a ministerial body, and in excess of its jurisdiction made an illegal or erroneous canvass, the superior canvassing board may be required to canvass without regard to such returns. 3 When the secre- tary of a board of canvassers refuses to attest its action as required by law, it may appoint a secretary pro tempore to do so, since it has by law power to make the canvass and certify its work. 4 The canvassing board cannot reject the returns or refuse to sign a certificate of election, because illegal votes were received or other frauds or irregularities were practiced at the election. 5 They will be required by this writ to correct clerical errors on their part, which are apparent on the books from which they canvassed. 6 Since their duties are confined to counting the votes and certify- ing the result, they cannot refuse to count the votes cast for a candidate for a certain office, because another officer failed to include such office in his proclamation relative to the election. 7 They cannot seek evidence aliunde to sus- • People v. Rice (N. Y., Dec. 29, s Lewis v. Marshall Co. (Com'rs), 1891), 29 N. E. Rep. 355. 16 Kans. 102; Com. v. Emminger. 2 People v. Onondaga Co. (Bd. Co. 74 Pa. St. 479 ; Dalton v. State, 43 Com'rs, N. Y., Dec. 29, 1891), 29 N. Ohio St. 652 ; Burke v. Monroe Co. E. Rep. 361. (Sup'rs), 4 W. Va. 371 ; Peck v. 3 People v. State Canvassers (Bd., Weddell, 17 Ohio St. 271 ; Privett v. N. Y., Dec. 29, 1891), 29 N. E. Rep. Stevens, 25 Kans. 275 ; Smith v. 355. In this case allegations to this Lawrence (S. Dak., June 19, 1891), effect were contained in the peti- 49 N. W. Rep. 7. tion, aud they were not denied, nor « State v. Hill, 20 Neb. 119. even alluded to in the return. ~ Morgan v. Pratt Co. (Com'rs), 24 4 People v. State Canvassers (Bd., Kans. 71. N. Y., Dec. 29, 1891), supra. 222 MANDAMUS TO CANVASSERS OF ELECTIONS. [§ 180. tain or overthrow the returns. 1 Their action is to be care- fully confined to an examination of the papers before them, and a determination of the result therefrom in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect to the proper candidates or officers for which they are in- tended, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evi- dence is not necessary for this purpose. 2 § 180. Will any evidence be received except the re- turns, when a mandamus is asked for against the can- vassers of an election. — Since the office of a mandamush to compel an officer to do what was his duty without the ma?idamt(s, it is claimed to be a universal rule that a court in such a proceeding will not hear evidence of any fact, affecting a return, which the canvassers are called upon to canvass and abstract. 3 It would seem to be inconsistent to ad- judge officers as derelict in duty, when such duty proceeded from matters which were not within their knowledge, since they were prevented from considering anything but the papers before them and matters of general notoriety. In one case, where it appeared that an alteration had been made in the return of the votes, but the canvassers did not know whether such alteration was made before or after they received the returns, the court heard evidence on the sub- i State v. State Canvassers, 36 v. Board of Examiners, 126 Mass. Wis. 498 ; Dalton v. State, 43 Ohio 282, where a board of canvassers St. 652. In State v. Kavanagh, 24 were not allowed to count votes Neb. 506, the canvassing board re- cast for L. Clark in favor of Leon- ceived affidavits and oral testimony ard Clark, because they were con- concerning an alteration of the re- fined to the record of the votes turns and then rejected them, and returned and laid before them. In were sustained in such action by similar cases another court decided the court. that the action of the canvassing 2Cooley's Const Lira., 623; State board would not be controlled. v. Foster, 38 Ohio St. 599 ; State v. State v. Foster, 38 Ohio St 599 ; Williams, 95 Mo. 159 ; State v. Dins- Dalton v. State, 43 Ohio St. 652. more, 5 Neb. 145. Contra, Clark 3 Dalton v. State, 43 Ohio St 652. § 181.] MANDAMUS TO CANVASSERS OF ELECTIONS. 223 ject and instructed the canvassers accordingly. 1 This is said to be the only case where this has ever been done. 2 Where a mandamus was asked to compel the canvass of over twenty- nine hundred votes cast in a county election, and the re- turn was that the vote was fraudulent, and that there were only about eight hundred voters in the county, the court refused the writ, because it knew, as a matter of general notoriety, that the return was true. 3 Where it appeared on the undisputed facts that the relator was ineligible to the office for which by the writ of mandamus he sought a certificate of election, the petition was overruled. The court admitted that the returning board had no right to inquire into the eligibility of a candidate, but asserted that it would not aid in carrying out an unlawful proceeding, and that a relator must always show a good title. 4 This case is in harmony with the general rule, because the facts were undisputed. § 181. A mandamus will issue to compel the proper officer to declare the result of the election. — When it is the duty of an officer to declare the result of the election, he may be required to do so, and will not be allowed to confine himself to a declaration of the votes cast for each proposition. 5 Where, in case of a tie vote, the law requires the judge of the election to determine by lot which of the two candidates is elected, he will be required to perform such duty, even though the relator asked him not to do so, since the law fixes his duties. 6 When an appeal is taken from a canvassing board to an appellate canvassing board, whose members are equally divided on the question of affirming the action of the lower board, such a vote is an affirmance of the action of the lower board, and such ap- pellate board may be required by a writ of mandamus to i State v. Garesche, 65 Mo. 480. 5 Steward v. Peyton, 77 Ga. 668 ; 2Dalton v. State, 43 Ohio St. 652. State v. Malcolm, 77 Ga. 671. s Hall v. Stewart, 23 Kans. 396. 6 Johnston v. State, 128 Ind. 16; * People v. State Canvassers (Bd., 27 N. E. Rep. 422. N. Y., Dec. 29, 1891), 29 N. E. Rep. 345. 224 MANDAMUS TO CANVASSERS OF ELECTIONS. [§§ 182-184. issue the certificate required from them in case of the af- firmance of the action of the lower board. 1 § 1S2. Mandamus will issue to the canvassing board, though they have already given another the certificate. The fact that a canvassing board has already declared the result and issued a certificate of election to another person is no adequate return to an alternative writ of mandamus to canvass the returns properly and to declare the proper result, when returns have been improperly counted or im- properly rejected. 2 Such action does not oust the incum- bent, and is often necessary to put the relator in a position to contest his rights. § 183. The peremptory writ will specifically direct the canvassing board what to do. — Before issuing the per- emptory writ in such cases, the court will ascertain the specific duty of the canvassing board, and will order its performance, 3 will order them to count votes which they failed to count, and to reject votes which they ought not to have counted, 4 and to give the certificate to the person ap- pearing on the face of the votes to be elected.* It is no objection to a mandamus to canvass the returns, that the office affected is that of a member of congress, since the duty of canvassing those votes is imposed on the canvassing board by the law of the state. 6 § 184. Mandamus not lie when another remedy or the hoard had discretion or the election was illegal. — Aman- i Elliott, Ex parte, 33 S. C. 602. Oglesby v. Sigman, 58 Miss. 502 ; 2 State v. State Canvassers Magee v. Calaveras Co. (Sup'rs), 10 (Bd.), 17 Fla. 29; Brown v. Bd. Cat 376) ; because another had been Com'rs, 38 Kans. 436; Ellis v. Bris- commissioned (Myers v. Chalmers, tol Co. (Com'rs), 2 Gray, 370 ; Peo- 60 Miss. 772) ; because the certificate pie v. Eives, 27 111. 242 ; People v. was given to one who was rilling Hilliard, 29 111. 413; Johnston v. the office (State v. Rodman, 43 Mo. State (Ind., April 8, 1891), 27 N. E. 254). Pep. 422; Smith v. Lawrence (S. 3 State v. Williams, 95 Mo. 159. Dak., June 17, 1891). 49 N. W. Rep. * State v. Berg, 76 Mo. 136. 7. Even though the party com- 5 Easier v. Cameron, 39 Ind. 488. missioned has entered upon thedis- 6 State v. Alachua Co. (Bd. Can.), charge of the duties of the office 17 Fla. 9. (State v. Howe, 28 Neb. 618. Contra: § 185.] MANDAMUS TO CANVASSERS OF ELECTIONS; 225 damns is allowed to canvassers of elections because it is considered that there is no other adequate remedy. A qxio warranto was asserted not to be an adequate remedy, be- cause such a defense in a mandamus proceeding obtains only when such remedy is attainable against the party against whom the mandamus is sought, and while the man- damus would run against the canvassing board, the quo warranto would be against the party declared to be elected. 1 "Where a remedy considered adequate is provided by stat- ute, as by contest or appeal, the writ will be refused. 2 When the election officers have a discretion in the matter, or are authorized to determine all contests and to decide on the qualifications of the parties, their action in the premises will not be reviewed by this writ. 3 A mandamus will not lie to canvass votes cast at an election for an office, which was then legally filled, and when no election therefor was proper ; 4 nor when such election was held without authority of law. 5 § 185. By mandamus the canvassing board may be re- quired to reconvene and do their duty, though they have adjourued siue die. — Though the board of canvassers have counted the votes, announced the result and adjourned sine die, they may be compelled by a mandamus to re-assemble and recount the votes, if it appears that upon the first can- vass they made an erroneous count. 6 The board continues 1 People v. Greene Co. (Sup'rs), 12 Scarborough, Ex parte (S. C, Jan. Barb. 217. 26, 1891), 12 S. E. Rep. 666. 2 State v. Stewart, 26 Ohio St 4 Peters v. Board State Canvass- 216 ; State v. Smith, 104 Mo. 661 ; ers, 17 Kans. 365. Mackey, Ex parte, 15 S. C. 322; 5 State v. Whitteinore, 11 Neb. State v. Berry, 14 Ohio St 315. A 175. contest in Nebraska is not con- fi Lewis v. Marshall Co. (Com'rs), sidered to be an adequate remedy. 16 Kans. 102 ; State v. Berg, 76 Mo. State v. Stearns, 11 Neb. 104. 136; State v. Stearns, 11 Neb. 104; 3 Grier v. Shackleford, 3 Brev. State v. Peacock, 15 Neb. 442 ; State 491; Vicksburg (Mayor) v. Rain- v. Hill. 20 Neb. 119; State v. Gibbs, water, 47 Miss. 547 ; State v. Baton 13 Fla. 55 ; State v. Howe, 28 Neb. Rouge (Selectmen), 25 La, An. 310 ; 618 ; 44 N. W. Rep. 874 ; Johnston State v. Strong, 32 La. An. 173; v. State, 128 Ind. 16; 27 N. E. Rep. 15 226 MANDAMUS TO CANVASSERS OF ELECTIONS. [§ 185. in existence till its whole duty is performed. 1 "Where in a similar case the county board of supervisors were ex officio the board of canvassers, and it was objected that the can- vassing board could not reconvene because the term of a member of the board of supervisors had expired and he had gone out of office, the court held that he continued to be a member of the canvassing board till it had discharged its duties, and that a mandamus would lie to compel him to act as a member thereof. 2 Where in such a case a rule to show cause or an alternative writ of mandamus is issued, it is proper that the court should issue an order inhibiting the board of canvassers from adjourning. 3 If, however, the board is allowed to be in session only a certain number of days, which have already passed, or if the board has been abolished by law, no writ of mandamus will issue to it, since the act called for is no longer a duty imposed upon the members thereof by law. 4 "When, however, the duty can be discharged by their successors, the writ may be issued to such successors. 5 422. Contra, Oglesby v. Sigman, 58 Miss. 502 ; People v. Greene (Corn'rs), 12 Barb. 217. i People v. Schiellein, 95 N. Y. 124 ; State v. County Judge, 7 Iowa, 186 ; Simon v. Durham, 10 Oreg. 52. 2 Srnitli v. Lawrence (S. Dak., June 19, 1891), 49 N. W. Rep. 7. 3 Alderson v. Corn'rs, 31 W. Va. 633. < Mackey, Ex parte, 15 S. C. 322 ; State v. Gibbs, 13 Fla. 55. Where a board was ordered to reconvene, one reason stated for such order was, that the board had finally ad- journed before the law required them to do so, not having properly discharged their duties. State v. Berg, 76 Mo. 136. 5 Clark v. McKenzie, 7 Bush, 523. CHAPTEK 14 MANDAMUS TO COURTS. : 186. Mandamus lies to courts as to ministerial acts. 187. Mandamus does not lie to control the judicial discretion of a court 188. Discretion of a court will be reviewed when it is guided by fraud, passion, prejudice or adverse interest. 189. Mandamus to courts to compel judicial action, but not to con- trol it. 190. Mandamus lies to make a judge sign a bill of exceptions. 191. Application under the statute of Westminster to compel the signing of a bill of exceptions. 192. The bill of exceptions must be presented to the judge within the proper time. 193. No one can be required to sign a bill of exceptions except an officer. 194. Cases where a mandamus to sign a bill of exceptions will be re- fused. 195. Mandamus to restore attorneys who have been disbarred. 196. Mandamus not granted to review interlocutory proceedings of the courts. 197. Exceptions to the rule. 198. Mandamus often granted in Louisiana to review interlocutory orders. 199. Interlocutory orders of courts may in Alabama be reviewed by the writ of mandamus. 200. Interlocutory orders of courts may in Michigan be reviewed by writs of mandamus. 201. Mandamus cannot take the place of an appeal or writ of error. 202. Mandamus will not always lie, though appeal or writ of error not allowable. 203. Mandamus lies to compel a court to try a cause, when it refuses to do so on the erroneous decision that it has no jurisdiction. 204. When a court for any cause improperly refuses to proceed in a cause, mandamus lies to compel action. 205. Disputed question whether appeal or mandamus lies upon an erroneous dismissal of an appeal by the lower court 206. When an appeal is wrongfully dismissed for matters occurring subsequent to its docketing, it may be reinstated on the docket by a mandamus. 228 MANDAMUS TO COURTS. [§§ 186, 187. § 207. When a mandamus lies to compel a court to hear a cause, when it has declined to hear it by reason of an erroneous decision on some preliminary question. 208. Mandamus to compel the allowance of an appeal. 209. Mandamus will not lie to a court when there is another remedy. 210. Litigants cannot by agreement create duties which the court may be compelled by mandamus to perform. 211. Special instances where a mandamus was not required or would have been inefficacious. 212. Mandamus to justices of the peace. § 186. Mandamus lies to courts as to ministerial acts. — The writ of mandamus has been used most extensively to control and correct the action of inferior courts. It is used not only to restrain their excesses, but also to quicken their negligence and obviate their denial of justice. 1 "When a duty is imposed by law upon a court, a mandamus from a higher court is the proper means to compel the discharge of such duty. 2 When such duty is so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of its performance, such duty is ministerial, and a writ of mandamus to compel the per- formance of such duty will specify the exact mode of per- formance. 3 § 187. Mandamus does not lie to control the judicial discretion of a court. — As to all acts which are judicial in their nature, where the party or tribunal, at whose hands performance is sought, is required to decide questions of law or to ascertain matters of fact, the writ of mandamus will not issue, since it is never used to review or reverse ju- dicial action; 4 nor to correct the errors of the court in the 1 3 Black. Com. 110 ; State v. 4 Morgan, Ex parte, 2 Chit. 250 ; Kirke, 12 Fla. 278 ; Virginia v. Oneida C. Pleas (Judges) v. People, Rives, 100 U. S. 313. 18 Wend. 79 ; Lewis v. Barclay, 35 2 Mason Co. (Bd. Sup'rs) v. Min- Cal. 213 ; People v. Weston, 28 Cal. turn, 4 W. Va. 300 ; State v. Or- 639 ; Osborn v. Clark, 1 Ariz. 397 ; phans' Ct. (Judge), 15 Ala. 740 ; Mooney v. Edwards, 51 N. J. L. 479 ; Manor v. McCall. 5 Ga. 522. Little v. Morris, 10 Tex. 263 ; Stout 3 State v. Williams, 69 Ala. 311 ; v. Hopping, 17 N. J. L. 471 ; Koon, Mooney v. Edwards, 51 N. J. L. 479. Ex parte, 1 Denio, 644 ; State v. § 187.] MANDAMUS TO COUKTS. 229 exercise of its judicial discretion ; ! nor to control the exer- cise of its discretion. 2 On the ground that the action of the court was a matter of judicial discretion, the writ of mandamus has been refused : to compel a judge or the court to extend the time wherein creditors may present their claims to the probate court ; 3 to refer cases to a particular master in chancery ; 4 to strike out a condition imposed on setting aside a ca. sa. for irregularity, that the defendant should stipulate not to bring an action for false imprison- ment ; 5 to rehear an appeal ; h to allow an appeal from a jus- tice of the peace upon a failure to appeal within the time limited by law ; 7 to grant an injunction ; 8 to punish for a contempt, since he must be the best judge whether a con- tempt was committed against the court ; 9 to issue a writ of habeas corpus', 10 to issue a warrant to arrest a French officer, who had left his ship, as a deserter, under the convention with the United States ; u to grant a warrant of restitution in a case of forcible entry and detainer; ,2 to give a particu- lar construction to an act of parliament ; 13 to vacate an order staying proceedings on execution, when the property had alreadv been levied on in another suit; u to receive certain Orphans' Court (Judges), 15 Ala. 5 Gilbert v. Niagara Co. (Judge), 740 ; Milner, Ex parte, 6 Eng. L. & 3 Cow. 59. E. 371 ; Reg. v. Bristol (Just), 28 6 Becke, Ex parte, 8 B. & Ad. 704. Eng. L. & E. 160; Q. v. Middlesex 'Vincent v. Bowes, 78 Mich. 315. (Just.), 2 Q. B. D. 516. 8 Hayes, Ex parte, 26 Ark. 510 ; 1 Smyth v. Titcomb, 31 Me. 272 ; McMillen v. Smith, 26 Ark. 613 ; Shandies, Ex parte, 66 Ala. 134; State v. Judge Sixth Dist., 28 La. Sankey v. Levy, 69 Cal. 244 ; State An. 905. v. Powell, 10 Neb. 48 ; People v. 9 Chamberlain, Ex parte, 4 Cow. Dutchess C. Pleas (Judges), 20 49. Contra, Ortman v. Dixon, 9 Cal. Wend. 658; Hollon Parker, Peti- 23. doner, 131 U. S. 221 ; Dunklin Co. 10 People v. Russell, 46 Barb. 27 ; v. Dunklin Dist Ct, 23 Mo. 449. Opdyke, Ex parte, 62 Ala. 68. 2 Thornton v. Hoge. 84 Cal. 231 ; U United States v. Lawrence, 3 White v. Buskett, 119 Ind. 431 ; Dal. 42. Hayes, Ex parte, 26 Ark. 510 ; 12 Q. v . Harland, 8 Ad. & E. 826. McMillen v. Smith, 26 Ark. 613. 13 Sturgis v. Joy, 2 El. & Bl. 739. 3 People v. Monroe Co. (Probate l4 People v. New York Sup. Court. Judge), 16 Mich. 204. 19 Wend. 701. < People v. Williams, 55 111. 17a 230 MANDAMUS TO COURTS. [§ 187. evidence, which had already been rejected in the trial of the cause ; * to grant a particular judgment, to set aside a ver- dict, or to grant a new trial ; 2 to conform in an equity case to the equity rules as to the time to appear and answer, where such conformity would work injustice; 3 to allow a motion to be permitted to intervene in a case ; 4 to hear charges against a justice of the peace ; 5 to issue an order for taking the testimony of a prisoner ; fi to vacate its rule setting aside an execution ; 7 to correct his decision on the question of costs ; 8 to accept the bond of a sheriff, when it had alreadv declared the office to be vacant ; 9 to hear an application for a habeas corpus when he had already heard the party on an application for bail ; 10 to make him enter judgment on one of three verdicts, none of which covered all the points, and when the jury was finally discharged and a mistrial was entered ; " to direct his judgment on an application for relief from, or alteration in, a tax assess- ment ; B to receive defendant's plea ; 13 to discharge an in- solvent debtor who was out on bail, because his creditor failed to pay $2 a week for his support ; 14 to sign a judgment after a new trial had been granted ; 15 to set aside a default and inquest thereon; 18 to allow double pleading; 17 to decide the amount of bail which is proper in the case ; 18 to compel the allowance of a change of venue; 19 to proceed according iKing v. Cambridgeshire (Just), 10 Campbell, Ex parte, 20 Ala 89. 1 D. & R. 325. u Henry, Ex parte, 24 Ala. 638. 2Squierv. Gale, 6 N. J. L. 157; 12 Miltenberger v. St. Louis County People v. Wayne Cir. Court, 20 Court, 50 Mo. 172. Mich. 220. 13 Anon., 7 N. J. L. 160. 3Poultney v. La Fayette (City), 14 State v. Court Common Pleas, 12 Pet. 472. 38 N. J. L. 182. 4 People v. Sexton, 37 Cal. 532. "State v. Watts. 8 La 76. 5 Johnson, Ex parte, 3 Cow. 371. "Roberts, Ex parte, 6 Pet. 216. e Willard v. Superior Court, 82 17 Davenport, Ex parte, 6 Pet 661. Cal. 456. ls Taylor, Ex parte, 14 How. 3. 7 Vanderveer v. Conover, 16 N. J. "The writ is refused in such cases L. 271. because the judicial discretion of 8 State v. Kenosha Circuit (Judge), the court is involved or because the 3 Wis. 809. matter can be corrected on appeal. 9 State v. Bowen, 6 Ala 511. People v. McRoberts, 100 Dl 458 ; § 188.] MANDAMUS TO COURTS. 231 to its first decision, which it altered during the same term of court ; * to vacate an order opening a judgment and al- lowing the defendant to plead a discharge in bankruptcy; 2 to allow costs in a case of damages which it had refused to do ; 3 to enter up a judgment on a verdict which was re- turned to the jury to further consider, who afterwards reported that they could not agree and were discharged ; 4 to allow an appeal by a curator and to certify the case up without his giving a bond as ordered, because it did not appear that the adverse party had asked for a bond, when by law the court could require it , 5 to enter a decree upon a report of a referee ; 6 to increase the tax for school pur- poses ; 7 to reinstate a cause on the docket ; 8 to review its action in dismissing proceedings for contempt after hear- ing the evidence ; 9 to review any decision involving facts ; 10 to punish parties for disobeying a subpoena duces tecum; u to grant a rehearing in an equity case ; 12 to reverse its ac- tion in extending the time for pleading ; 13 and to proceed in the trial of a cause, when it had been advised that an injunction had been issued commanding the parties to such cause to take no further proceedings therein. 14 § 1S8. Discretion of a court will be reviewed when it is guided by fraud, passion, prejudice or adverse interest. Though the rule is general that the action of the court, in State v. Washburn, 22 Wis. 99; 7 Union County Court v. Robin- People v. Sexton, 24 Cal. 78. The son, 27 Ark. 116. writ has been granted in such 8 Hempstead County v. Grave, 44 cases, because the act of the court Ark. 317. was^ considered to be ministerial 9Heilbron v. Superior Court, 72 (Coit v. Elliott, 28 Ark. 294 ; Ken- Cal. 96 ; State v. Horner, 16 Mo. nedy v. Woolfolk, 1 Overt. 453), or Ap. 191. an appeal would be too late. Dan- i» Oneida C. Pleas (Judges) v. Peo- ville v. Blackwell, 80 Va. 38. pie, 18 Wend. 79. 1 Foster v. Redfield, 50 Vt. 285. " Burtis, Ex parte, 103 U. S. 238. 2 Elkins v. Athearn, 2 Denio, 191. i2Gredham, Ex parte, 82 Ala. 359. s Chase v. Blackstone C. Co., 10 1 3 Opdyke, Ex parte, 62 Ala. 68. Pick. 244. H State v. Orphans' Court (Judge), 4 State v. Clementson, 69 Wis. 628. 15 Ala. 740 ; People v. Muskegon 5 Potter v. Todd, 73 Mo. 101. Cir. Judge, 40 Mich. 63 ; People v. e Ludluni v. Fourth Dist. Ct, 9 Gilnier, 10 111. 242. CaL7. 232 MANDAMUS TO COURTS. [§ 189. a matter calling for the exercise of its judgment or discre- tion, will not be reviewed or corrected by this writ, yet the courts will not adhere thereto when it is apparent that the action of the court proceeds from fraud, passion, prejudice or adverse interest ; but such facts must be very clearly proved before a court will interfere by this writ. 1 § 189. Mandamus to courts to compel judicial action, but not to control it. — Judges and courts, like all other officers and tribunals, may be compelled by the writ of mandamus to perform any ministerial act upon refusal so to do. So when any duty devolves upon them which calls for judgment and discretion, they cannot ignore it, but may be compelled by this writ to take cognizance thereof and come to some conclusion thereon, but the writ will in no manner direct the form or nature of such conclusion. The writ has been considered to be proper : to make a court hold a term of court ; 2 to compel the appointment of a guardian to defend an adult non compos who has been sued ; 3 to re- verse the action of the court in refusing to allow a sheriff to amend his return, pending an action against him for judgment thereon, which is collateral to the suit wherein his return was made ; 4 to compel the granting of letters of administration to A., the refusal so to do not being either an interlocutory or a final judgment; 5 to receive 6 and enter 7 the verdict of the jury; to enter a judgment on the verdict, when the court cannot on its own motion, 8 or other- wise, 9 set it aside and grant a new trial; to enter judgment on an alternative verdict according to the election of the i Union Colony v. Elliott, 5 Colo. 4 Casky v. Haviland, 13 Ala. 314. 371 ; Schlaudecker v. Marshall, 72 5 Brennan v. Harris, 20 Ala 185. Pa. St. 200 ; Vincent v. Bowes, 78 6 Com. v. Norfolk (Sessions), 5 Mich. 315 ; Knarr's Petition, 127 Mass. 434 ; State v. Knight, 46 Mo. Pa. St. 554 ; State v. Kirke, 12 Fla. 83 ; Com. v. Middlesex (Sessions), 9 278 ; Virginia v. Rives, 100 U. S. Mass. 388. 313; Manor v. McCall, 5 Ga, 522. ?Munkers v. Watson, 9 Kans. 668. See ante, §§ 40, 41, where the ques- 8 Lloyd v. Brinck, 35 Tex. 1. tion is fully considered. 9 State v. Adams, 76 Mo. 605 ; 2 Trapnall, Ex parte, 6 Ark. 9. Lloyd v. Brinck, 35 Tex. 1 ; Cor- 3 Northington, Ex parte, 37 Ala. tleyou v. Ten Eyck, 22 N. J. L. 45 ; 496. Brooke v. Ewers, 1 Stra. 113 ; Peo- § ISO.] MANDAMUS TO COURTS. 233 plaintiff; 1 to enter judgment in a criminal case and pass sentence accordingly; 2 to compel the court to make an entry on its minutes of its refusal to admit to probate the certified will of a non-resident, and to grant letters testa- mentar}^ to the executor ; 3 to enter judgment on the report of a referee assessing damages on the dissolution of an in- junction; 4 to compel the judge to sign the judgment, 5 to execute his sentence 6 and to carry his decree into effect, when the appeal bond given was not sufficient to entitle the appellant to a supersedeas, though the court granted it ; 7 to compel a court to amend its records in accordance with the facts, 8 which may be corrected though the case is ap- pealed, prior to final judgment in the appellate court ; 9 to correct a judgment erroneously entered upon reasonable application, when the rights of third parties are not in- jured ; 10 to enter up an award as the judgment of the court ; !1 to compel a chancellor to make an order requiring the res- stitation of money paid under a decree, which has been re- versed on appeal ; ,2 to compel a court to reinstate on its pie v. Chenango (Just), 1 John. 119 Ind. 431), and will, it is claimed, Cas. 179. produce anarchy in legal proceed- i State v. Mills, 27 Wis. 403. ings. Dixon v. Judge 2d Jud Dist., 2 State v. Snyder, 98 Mo. 555. 4 Mo. 286. The proper remedy is 3 Williams v. Saunders, 5 Cold, considered to be an application to 60. the court itself, which will make 4 Eussell v. Elliott, 2 Cal. 245. the proper correction. King v. s Life, etc. Co. v. Wilson, 8 Pet. Hewes, 3 Ad. & E. 725 ; 5 N. & M. 291; State v. Judge Fourth Dist. 139; King v. Leicestershire (Just), Ct, 28 La. An. 451. 1 M. & S. 442. When the court 6 United States v. Peters, 5 has considered and overruled a mo- Cranch, 115; State v. Whittet, 61 tion to amend the judgment to Wis. 351. conform to the complaint its ac- 7 Stafford v. Union Bank La., 17 tion is judicial and the remedy How. 275. must be sought by appeal or writ of 8 Hendee v. Cleveland, 54 Vt 142 ; error. Morgan, Ex parte, 114 U. S. Taylor v. Gillette, 52 Conn. 216; 174. State v. Whittet, 61 Wis. 351 ; Hoi- 9 Henderson, Ex parte, 84 Ala 36. lister v. Lucas Dist. Ct. (Judges), 8 io Frederick v. Circuit Judge, 52 Ohio St. 201 ; Howell v. Crutchfield, Mich. 529. Hemp. 99 ; Frederick v. Mecosta Cir. " Dudley, Ex parte, 79 Ala, 187. Judge, 52 Mich. 529. This prop- I2 Walter Brothers, Ex parte, 8& osition is denied (White v. Burkett, Ala 237. 23i MANDAMUS TO COUETS. [§ 189, docket a cause dismissed for not stating in the pleadings the amount involved in the suit so as to show the juris- diction of the court, when by the practice of the court such amount might be shown by other means ; l to com- pel county courts to put in their records in election cases their rulings, and sufficient of the evidence to ex- plain them, in order that the circuit courts may prop- erly review them in the certiorari proceedings prescribed by law; 2 to compel the lower court to obey the mandate of the supreme court, which it disobeys, misconstrues or does not heed, and to enter the proper decree and to carry it into execution; 3 to compel a court to make the neces- sary orders in a criminal case to enable the depositions of witnesses for the defendant, residing out of the state, to be taken; 4 to compel a court to issue a writ of habeas corpus; 5 to require a court to qualify a deputy-sheriff; 6 to compel a court to appoint commissioners to condemn land for, and assess the damages in the construction of, a railroad; 7 to compel a court, as requested, to appoint a surveyor to vacate a public road ; 8 to compel a court to administer the oath of insolvency to a debtor and then to discharge him, though the court may believe he fraudu- lently conceals some of his assets ; 9 to compel a register to call a register's court, when in probating a will a difficult or disputable matter comes into controversy ; 10 to enable the plaintiff, when refused permission by the court, to substi- tute another attorney for the one employed by B., to iBradstreet, Ex parte, 7 Pet. 634. 6 Day v. Fleming County Court 2 Dryden v. Swinburne, 20 W.Va. (Just.), 3 B. Mon. 198; Applegate g 9# v. Applegate, 4 Mete. (Ky.) 236. 3 Johnson v.Glascock, 2 Ala. 519; ? Illinois C. R. R. v. Rucker, 14 United States v. Fossatt, 21 How. 111. 353; Chicago, etc. R. R. v. Wil- 445 ; State v. Collins, 5 Wis. 339 ; son, 17 111. 123. Duffitt v. Crozier, 30 Kans. 150; estate v. Salem Pleas (Judges), Jared v. Hill, 1 Blackf. 155 ; Du- 9 N. J. L. 246. buque, etc., R. R. Ex parte, 1 Wall. 9 Harrison v. Emmerson, 2 Leigh, €9. 764. 4 Giboney v. Rogers, 32 Ark. 462. i" Com. v. Bunn, 71 Pa St 405. 6 Wright v. Johnson, 5 Art 687. § 190.] MANDAMUS TO COURTS. 235 whom the plaintiff had conveyed a part interest in the claim in dispute with an agreement that B. should prose- cute it ; x to compel the grant of administration on an estate to the person entitled to it ; 2 to obtain the release of one arrested on civil process immediately upon release from a similar arrest without having given him time to return home; 3 to compel a judge to certify a cause in which he is interested as an attorney to the proper court ; 4 and to com- pel the trial court to fix the amount of the bond necessary to stay proceedings in a cause pending an appeal thereof to an appellate court. 5 § 190. Mandamus lies to make a judge sign a bill of exceptions. — A writ of mandamus lies to compel a judge to sign a bill of exceptions. Unless the bill of exceptions is signed, the appellant is unable to enjoy the benefits of the right of appeal, and the appellate jurisdiction of the higher courts cannot be exercised. The right to issue a mandamus for that purpose is well established. 6 The sign- ing and sealing of a bill of exceptions is both ministerial and judicial. The determination of what the bill shall con- tain is judicial, 7 consequently a mandamus to sign a bill of exceptions will only issue when there is a clear abuse of discretion. 8 The writ will not direct the judge how to frame the bill of exceptions ; 9 it will run in the alternative 1 People v. Norton, 16 Cal. 436. parte, 5 Pet. 190 ; Sansome v. Myers, 2 Steward v. Eddy, 7 Mod. 143. 80 Cal. 483 ; Chateaugay, etc. Co., 3 People v. Detroit (Superior Petitioner, 128 U. S. 544 ; People v. Judge), 40 Mich. 729. Crane, 60 Cal. 279 ; State v. Field, 4 Graham v. People, 111 111. 253. 37 Mo. Ap. 83; State v. Drew, 32 5 State v.Sachs (Wash., Nov. 12, La. An. 1043; Briscoe v. Ward, 1 1891), 27 Pac. Rep. 1075. Har. & J. 165 : People v. Washing- GHerteman, In re, 73 Cal. 545 State v. Macdonald, 30 Minn. 98 Ah Lep v. GongChoy, 13 Oreg. 205 State v. Baxter, 38 Minn. 137 ton C. Pleas (Judges), 2 Caiues, 97 Etheridge v. Hall, 7 Port. 47. 7 People v. Anthony, 129 111. 218 Clark v. Crane, 57 Cal. 629. State v. Barnes, 16 Neb. 37 ; Reich- 8 Alexander v. State, 82 Tenn. 88 enbach v. Ruddach, 121 Pa. St. 18; State v. Brockwell, 84 Tenn. 683. Powell v. Tarry, 77 Va, 250; State 9 Chateaugay, etc. Co., Petitioner, v. Whittet, 61 Wis. 351 ; Crane, Ex 128 U. S. 544. 236 MANDAMUS TO COURTS. [§ 190. form, quod si ita est, and if the return is quod non ita est, 1 it is sufficient. The judge is to decide as to the propriety, accuracy and truth of the bill; he will not be required to sign one which he does not believe to be correct. 2 His de- cision as to its truthfulness is conclusive and final, and the court will hear no testimony thereon. 3 When the judge returns that he has already settled and signed a bill of ex- ceptions according to his knowledge and recollection of the facts, such return is sufficient, and the matter is not to be determined by an issue submitted to a jury. 4 If the judge returns that he considers the bill incorrect, or shows any other sufficient objection to it, 5 as that it is illegible, dis- orderly, erased or interlined, 6 the peremptory writ will be refused. When, however, the judge in his return admits the bill of exceptions to be correct, 7 or has heard the mo- tion for a new trial on a statement of the case stipulated by the parties to be correct, 8 his duty to sign the bill of ex- ceptions becomes merely ministerial, and a mandamus will issue to compel him to sign it. When the judge returns to the alternative writ, that he has settled and signed a bill of exceptions, the writ has accomplished its purpose and is functus officio? The petition for a writ of mandamus should be accompanied by the bill of exceptions, 10 though it i Benedict v. Howell, 39 N. J. L. People v. Jamison, 40 111. 93 ; Peo- 221. pie v. Anthony, 129 111. 218; Cum- 2 People v. Williams, 91 IR 87 ; mings v. Armstrong, 34 W. Va. 1. People v. Jameson, 40 111. 93; Brad- 5 People v. Pearson, 2 Scam. 189 ; street, Ex parte, 4 Pet 102 ; State v. Etheridge v. Hall, 7 Port. 47 ; State Todd, 4 Ohio, 351. v. Hawes, 43 Ohio St. 16 ; Brad- 3 Shepard v. Peyton. 12 Kans. 616 ; street, Ex parte, 4 Pet. 102. Benedict v. Howell, 39 N. J. L. 221 ; 6 Cottle v. Harrold, 72 Ga. 830 ; Sikes v. Ransom, 6 John. 279 ; State Preetorius v. Barnes, 75 Ga. 313. v. Todd, 4 Ohio St. 351 ; Creager 7 Conrow v. Schloss, 55 Pa. St. 28. v. Meeker, 22 Ohio St. 207 ; State v, 8 State v. Cox, 26 Minn. 214. Small, 47 Wis. 436 ; State v. Shel- 9 Thornton v. Hoge, 84 Cal. 231 : don, 2 Kans. 322 ; State v. Babcock, People v. Wayne Cir. Judge, 32 51 Vt. 570 ; Cummings v. Arm- Mich. 259. strong, 34 W. Va. 1. 10 Creager v. Meeker, 22 Ohio St. 4 State v. Noggle, 13 Wis. 380; 207 ; Sikes v. Ransom, 6 John. 279 ; § 190.] MANDAMUS TO COCKTS. 237 is not necessary to recite the bill in the petition, 1 or the court may not be able to determine whether it will tend to manifest anv error committed on the trial, and may for that reason refuse the writ. 2 The bill of exceptions pre- sented to the judge must in good faith profess to contain all the evidence. The court cannot be required to draft a lengthy bill of exceptions, or to perform clerical work of moment, either directly or indirectly. 3 The court cannot say the bill is wrong, fold its hands and do nothing; but, when a bill is prepared that is claimed to embrace the whole proceedings, it is its duty to carefully examine it and correct it if need be, so as to make it speak the absolute truth. 4 If the court refuses to incorporate in a bill of ex- ceptions an affidavit which it ordered stricken from the files, a mandamus may be obtained to compel such inser- tion, provided the affidavit is not objectionable. 5 The per- son who offers a bill of exceptions ought to present such an one as the judge can sign. The course to be pur- sued is, either to endeavor to draw up a bill by agreement which the judge can sign, or to prepare a bill to which there can be no objection, and present it to the judge. 6 At best a litigant's efforts to present his case properly before an appellate court are largely dependent upon the trial judge, since the bill of exceptions is moulded on the recol- lections of the latter. Such provision for determining what evidence was presented at the trial seems unavoid- able, since the right to finally decide must be lodged some- where. At present the general use of stenographers reduces the liability of error to a minimum. People v. Jamison, 40 I1L 93 ; Page 4 Swartz v. Nash, supra; Van- v. Clopton, 30 Grat 415 ; Conrow vabrye v. Staton, 88 Term. 334. v. Schloss, 55 Pa. St 28. 5 Van Etten v. Butt (Neb.. June i People v. Westchester Ct C. 30, 1891), 49 N. W. Rep. 365. Pleas, 4 Cow. 73. 6 Bradstreet, Ex parte, 4 Pet 102 ; 2 People v. Dickson, 46 CaL 53. People v. Jamison, 40 I1L 93; Page 3 Sansome v. Myres, 77 CaL 353 ; v. Clopton, 30 Grat 415. Swartz v. Nash, 45 Kans. 341. 238 MANDAMUS TO COURTS. [§§ 191, 192. § 191. Application under the statute of Westminster to compel the signing of a hill of exceptions. — When the application for an order to compel the judge to sign a bill of exceptions is framed under the statute of Westminster 2d (13 Edward 1, ch. 31), the judge is required to con- fess and seal the exceptions or to deny them. If he con- fess and seal them, they become part of the record ; if he deny them, the petitioner has his action at law for a false return. This proceeding, however, is special and is not a mandamus, and seems to be used in only one state, where it was adopted by statute. 1 § 192. The hill of exceptions must he presented to the judge within the proper time. — A court will not be re- quired to sign a bill of exceptions, unless it be presented within the proper time. It must be presented to the judge for signature within the time allowed by law, which is gen- erally during the term in which the case is tried; 2 but the court may extend the time by an order which must be en- tered of record. 3 After such period the court will not be required to sign the bill. 4 Among other reasons why the delay is not admissible is the fact that the judge may for- get the evidence. 5 When the judge is required to decide whether such delay is excusable, his decision in such matter is judicial, and a mandamus will not lie to make him sign the bill, since such action would control his judicial discre- tion as to whether the delay in presenting the bill was ex- cusable. 6 It is no objection that the application for a mandamus to compel the judge to sign the bill is made after the period limited by law for such signing has passed, if the applicant has performed his duty in due season, and the delay is due to the fault or absence of the judge, or the i Conrow v. Schloss, 55 Pa. St. 28 ; * State v. St. Louis C. Court Haines v. Com., 99 Pa. St. 410. (Judge), 41 Mo. 598. 2 Medberry v. Collins, 9 Johns. 4 Alexander v. State, 14 Lea, 88. 345 ; Sheppard v. Wilson, 6 How. 5 Sikes v. Ransom, 6 John. 279. 2G0. 6 Sprague v. Fawcett, 53 Cal. 408 ; Stonesif er v. Armstrong, 86 Cal. 59 4. §§ 193, 194:.] MANDAMUS TO COURTS. 239 fault of the opposing party. 1 The court will not be re- quired to settle a bill of exceptions on a motion for a new- trial, when the motion itself w r as made after the time lim- ited therefor, since the court will not order a vain thine. 2 § 193. No one can be required to sign a bill of excep- tions except au officer. — Since a mandamus never issues against a private party, it will not compel a person to sign a bill of exceptions, who by consent of the parties acted as judge on the trial of the cause, 3 nor to the trial judge, who has since resigned, or whose term of office has since ex- pired. 4 § 194. Cases where a mandamus to sign a bill of ex- ceptions will be refused. — It is a matter of course that a judge cannot be called upon to sign a bill of exceptions in a case tried by his predecessor, since he can know nothing about it ; 5 but it is said that he should be applied to for that purpose, as he would no doubt grant a new trial if satis- fied that justice requires it. 6 It would seem that justice would require a new trial in all such cases, else the litigant would be deprived of rights accorded to others. It has been held that a judge has no power over a bill of exceptions after he has signed it and it has been filed, and that any alterations made in it thereafter by him are made in his private capacity, and, therefore, a mandamus will not lie to compel him to restore it to its former condition. 7 A judge lEtheridge v. Hall, 7 Port 47; (Village), 20 Wis. 194; Hale v. People v. Lee, 14 Cal. 510 ; Trinity, Haselton, 21 Wis. 320. In Nebraska &c. R. R. v. Lane, 79 Tex. 643 ; Peo- a mandamus has been granted pie v. Van Buren C. (Judge), 41 against an ex-judge to compel him Mich. 725. to sign a bill of exceptions because 2 Clark v. Crane, 57 Cal. 629. otherwise there was no remedy. 3 State v. Larrabee, 3 Wis. 783. State v. Barnes, 16 Neb. 37. The 4 De Haas v. Newaygo Cir. Judge, same object was accomplished in 46 Mich. 12; State v. Pearson, 3 Pennsyhania by a certiorari. Gal- Scam. 270. A custom sprang up braith v. Green, 13 S. & R, 85. in Wisconsin for the trial judge to 5 Fellows v. Tait, 14 Wis. 156. sign the bill of exceptions, though 6 De Haas v. Newaygo Cir. Judge, his term of office had expired, and 46 Mich. 12. the custom was considered to be 7 State v. Powers, 14 Ga. 388. unobjectionable. Davis v. Menasha 240 MANDAMUS TO COURTS. [§ 195. will not be required to sign a bill of exceptions in a crim- inal case, when the prisoner has escaped after conviction. The courts will not encourage escapes and facilitate the evasion of the justice of the state by extending to escaped convicts the means of reviewing their convictions. 1 The fact that there is another remedy bars the use of a man- damus. A mandamus will be refused to compel a judge to sign a bill of exceptions, when the law says by-standers may sign it, 2 till such statutory remedy be pursued or shown to be unavailable. 3 § 195. Mandamus to restore attorneys who have oeen disbarred. — The remedy by mandamus has been applied from an early day to correct the abuses of inferior courts in summary proceedings against their officers, and especially against the attorneys and counselors of the courts. The order disbarring attorneys, 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 such 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. "Where the act complained of rested in the exercise of the court's discretion, the remedy by mandamus has failed. But such discretion is not unlimited; for if it be exercised with manifest injustice, the court of king's bench will com- mand its due exercise. It must be a sound discretion and according to law. This proceeding by mandamus, to re- dress the injury which an attorney has sustained by a dis- barment, fine or imprisonment, is admitted to be the recognized remedy when the case is outside of the exercise of the court's discretion, and is one of irregularity, or against law, or of flagrant injustice, or without jurisdiction. 4 The reasons given for issuing the writ in such cases are, that the office of an attorney is of public concern and regards the i People v. Genet, 59 N. Y. 80. 3 State v. Thayer, 15 Mo. Ap. 391. 2 Jamison v. Reed, 2 G. Greene, 4 Bradley, Ex parte, 7 Wall 364. 394 ; State v. Wickham, 65 Mo. 634. § 100.] MANDAMUS TO COURTS. 241 administration of justice, and that there is no other remedy. 1 A mandamus is a proper remedy to restore an attorney who has been disbarred, 2 when the court exceeded its juris- diction, 3 or acted improperly, or the charge was founded in error or mistake, 4 or when the disbarment is a nullity, 5 or the cause of disbarment was a contempt alleged to have been committed before another court, 6 or the court has de- cided erroneously on the testimony and it is a plain case of wrong and injustice, 7 or the judgment is too severe, the of- fense being rather a mistake than an intentional error. 8 In some cases the courts have declined to interfere because the questions involved were of judicial discretion, and because the courts are not inclined to interfere in any case unless the conduct of the lower court was irregular or flagrantly improper. 9 So where the law allows one possessing the necessary qualifications to apply to be examined as to his qualifications for practicing law, a mandamus will lie to secure to him such an examination, and the necessary cer- tificate if he is found to be qualified. 10 Where, however, the admission of an attorney is a judicial act, a mandamus will not lie to compel a court to admit a party to be an attorney. 11 § 196. Mandamus not granted to review interlocutory proceedings of the courts. — A mandamus will not be i White's Case, 6 Mod. 18; Hurst's «Burr, Ex parte, 9 Wheat 521): Case, 1 Lev. 75 ; People v. Dela- Bradley, Ex parte, 7 Wall. 36 1. ware C. Pleas (Just). 1 Johns. Cas. 1() State v. Baker, J5 Flu. 598. It 181. did not lie to the inns of court. 2 Withers v. State, 3G Ala. 252. since they were lmt voluntary as- 3 Robinson, Ex parte, 19 Wall, sociations. and possessed no powers 505; State v. Sachs (Wash., May 21. save what the judges delegated to 1891), 26 Pac. Rep. 865. them. The remedy was to apply to 4 Gephard, In re, 1 Johns. Cas. the judges. King v. Gray's Inn 134. (Benchers). Doug. 353. 5 Walls v. Palmer. 64 Ind. 493. "Com. v. Cumberland C. Pleas 6 Bradley, Ex parte, 7 Wall. 364. (Judges), 1 S. & R. 187; Com. v. ' State v. Kirke, 12 Fla. 278. District Court (Judges), 5 Watts & 8 People v. Delaware C. Pleas S. 272. (Just), 1 Johns. Cas. 181. 1G 242 MANDAMUS TO COURTS. [§ 196. granted to review interlocutory proceedings, or orders of a court made in a cause pending before it prior to the final determination thereof, 1 even though the action of the court bears harshly and oppressively on the relator. 2 The rem- edy is by appeal or writ of error after final judgment. Apart from the question of interfering by mandamus in questions involving the judgment and discretion of courts, it has been considered that such interference would make legal controversies interminable; 3 would involve great ex- pense, and would overwhelm the superior courts to the great delay of justice, 4 while the same questions would come up again on an appeal from the final judgment or decree. This writ has been refused : to compel a trial judge to pre- vent the filing of a pleading, though it was claimed that in no other way could the relator assert an alleged constitu- tional right; 5 to allow a person to be admitted as a party to foreclosure proceedings; 6 to vacate an order setting aside a nonsuit ; 7 to compel a court to obey the orders prescribed for equitable proceedings; 8 to allow a plaintiff to dismiss the cause at his costs ; 9 to compel a court to set aside an injunction; 10 to make a court reverse its ruling on the admissibility of certain evidence, though such court was the highest appellate court for such case; 11 to compel a change of venue ; 12 or to allow an appeal from an inter- locutory order, such as the allowance of alimony and coun- sel fees in a divorce suit subsequent to the granting of the » Perry, Ex parte, 102 U. S. 183 ; pie, 18 Wend. 79 ; State v. Engel- Bradstreet, Ex parte, 8 Pet. 588 ; man, 86 Mo. 551. Sawyer, Ex parte, 88 U. S. 235 ; 5 state v. Thayer, 10 Mo. Ap. 540. Life, etc. Ins. Co. v. Adams, 9 Pet. 6 Moon v. Wellford, 84 Va. 34. 571 ; Hoyt, Ex parte, 13 Pet 279 ; 1 Loring, Ex part-, 94 U. S. 418. Flippen, Ex parte, 94 U. S. 348; *Myra Clarke Whitney, Ex parte, State v. Williams, 69 Ala. 311. 13 Pet. 404. 2 Myra Clarke Whitney, Ex parte, 9 People v. Pratt, 28 Cal. 166. 13 Pet 404. io Schwab, Ex parte, 98 U. S. 240. 3 People v. Dutchess C. Pleas, 20 1J Scott v. Superior Court 75 Cal. Wend. 658. 114. * Judges Oneida C. Pleas v. Peo- 12 Chambers, Ex parte, 10 Mo. Ap. 240. §§ 197, 198.] MANDAMUS TO COUKTS. 243 divorce, but while the division of the property and the cus- tody of the offspring were reserved for further action by the court. 1 § 197. Exceptions to the rule.— The rule, that a man- damus will not lie to review or correct the interlocutory orders or decisions of a court, is not of universal accept- ance. In New York it has been allowed: to vacate an order setting aside a report of referees ; 2 to correct erro- neous practice ; 3 to vacate a rule allowing an amendment by permitting the declaration to be filed there, and requiring the defendant to plead in that court, whereas the declara- tion and the rule to plead had been entered in another court, 4 and to vacate a rule for a new trial. 5 But this posi- tion is now abandoned, and the New York courts will no longer issue this writ to review the interlocutory proceed- ings of courts. 6 A mandamus has been issued in Arkansas to compel the allowance of an injunction. 7 § 198. Mandamus often granted in Louisiana to review interlocutory orders.— Under the law of Louisiana liti- gants may appeal from all interlocutory judgments, when such judgments may cause irreparable injury ; 8 in other cases the courts will not interfere with such judgments. 9 Accordingly a mandamus was refused to compel the allow- ance of an appeal from an interlocutory order in a suit for a dissolution of a partnership, directing a sale of the part- nership property, because such sale would not cause ir- reparable injury. 10 Where a case was still pending and undisposed of, a mandamus was held to be proper to allow i Lake v. King, 16 Nev. 215. Pleas (Judges) v. People. 18 Wend. 2 People v. Niagara C. Pleas, 12 79; People v. Oneida C. Pleas Wend. 246. (Judges', 21 Wend. 20. 3 Blunt v. Greenwood, 1 Cowen, 7 Pile, Ex parte, 9 Ark. 336. 15. 8 state v. Judge Fourth Dist. 4 People v.Superior Court N. Y., Court, 21 La. An. 736; State v. 18 Wend. 675. Judge Third Dist. Court, 31 La. 5 Craykendoll, Ex parte, 6 Cow. An. 800. 53. - State v. Judge, 15 La. 521. 6 People v. Dutchess C. Pleas 10 State v. Judge Third Dist Court, (Judges), 20 Wend. 658 ; Oneida C. 6 La, An. 481. 24:4 MANDAMUS TO COURTS. [§ 198. an appeal from the order of the court, carrying into effect a prior judgment in the case, which was confirmed on ap- peal, when such order was more extensive than the appel- late judgment. 1 A mandamus was issued to allow a sus- pensive appeal from an order dissolving an injunction; 2 but it was considered to be necessary that the continua- tion of the acts enjoined would cause irreparable injury. 3 At one time the courts in Louisiana refused to review or correct by mandamus any interlocutory judgment or de- cree ; 4 but under the provisions of a later state constitution the courts claimed the right to compel an inferior court by mandamus to issue an injunction in a case clearly sufficient on the facts, when no question of law was involved. At the same time the courts disclaimed any intention of interfer- ing with the independence of the courts or of overruling their discretion, save in a clear case of usurpation of au- thority or abuse of discretion, but reserved the right to make exceptions to such disclaimer if they considered public interests demanded it. 5 Under the wording of the Louisiana law, a mandamus may issue to prevent a failure of justice, and the supreme court has considered that therefore it should issue in all cases where the law has assigned no re- lief by the ordinary means, and when justice and reason require that some mode shall exist for redressing a wrong or an abuse of any nature whatever. 6 Even if the party has other means of relief, the court will issue the writ of mandamus in his behalf, if the slowness of ordinary legal forms is likely to produce such immediate injury or mis- chief as ought to be prevented. 7 Accordingly this writ has been used to compel the lower court to issue an injunction in limine which it had already refused to do; but to obtain a mandamus m such a case, it must appear that the party 1 State v. "West Baton Rouge La. An. 905 ; State v. Parish Judge (Judge Prob.), 8 Rob. 193. of St. Bernard, 31 La. An. 794. 2 State v. Judge Fourth Disk 5 State v. Judge Sixth Dis 1 :. Court, 21 La. An. 736. Court, 32 La. An. 549. 3 State v. Monroe, 41 La. An. 241. « State v. Young. 38 La. An. 923. 4 State v. Judge Sixth Disk, 28 7 State v. Lazarus, 36 La. An. 578. § 199.] MANDAMUS TO COUKTS. 245 is entitled as of right to the injunction, the facts must be clearly sufficient, and no question of law must be involved. 1 In other decisions it is said that a mandamus will not lie to compel a judge to grant an injunction which he has already refused, unless it is a cause where under the code of prac- tice he has no discretion ; 2 if he has such discretion his de- cision can only be reviewed on appeal. 3 Where a court erroneously refused to try a case himself and referred it to a jury, a mandamus was issued to make him try the case himself. 4 The constitution of Louisiana has been changed several times, and the varying rulings of their courts are due to such changes. At present the supreme court of that state claims great latitude in reviewing the actions of the lower courts, because the present constitution vests it with supervisory control and supervision over inferior courts. 5 § 199. Interlocutory orders of courts may in Alabama be reviewed by the writ of mandamus.— The ruling in Alabama on this point is also exceptional, and the writ of mandamus has been issued : to correct the action of the court in granting: or setting aside an attachment for a witness ; fi to revise the action of the court in quashing or refusing to quash an ancillary attachment ; 7 to place a cause on the docket when a judgment was made absolute too soon; 8 to reinstate a suit dismissed by consent of court by A., in whose name the suit was brought for B.'s benefit ; 9 to restore a suit improperly abated on the death of the plaintiff ; 10 to make the court declare a bond for costs to be insuffi- cient, though the court had held otherwise; u to enforce an 1 State v. Lazarus, 36 La, An. 578 ; ' Gee v. Alabama, etc. Co., 13 State v. Judge, 40 La. An. 206. Ala. 579 ; Hudson v. Daily, 13 Ala. 2 State v. Judge, 41 La. An. 951. 722; Putnam, Ex parte, 20 Ala. 3 State v. Rightor, 40 La. An. 852 ; 592 ; Boraim v. De Costa, 4 Ala. State v. Judge Sixth Dist. Court, 32 393. La. An. 549. 8 Lowe, Ex parte, 20 Ala. 330. 4 State v. Judge Twenty-sixth 9 Brazier v. Tarver, 4 Ala. 569. Dist Court, 34 La. An. 1177. 10 State ex reL Nabor, 7 Ala. 459. 5 State v. Ellis, 41 La. An. 41. » Morgan, Ex parte, 30 Ala. 51. 6 Hogan v. Alston, 9 Ala, 627. 246 MANDAMUS TO COURTS. [§ 199. agreement not to file papers in a pending suit, when the opposing counsel has been allowed to file an amended com- plaint in contravention thereof 5 1 to reinstate a cross-bill dismissed before the final termination of the cause; 2 to re- vive a suit ; 3 to set aside an order for a rehearing when it was granted improperly; 4 to dismiss a suit brought by a non-resident without giving security for costs; 5 to grant an order for a rehearing which was improperly refused ; 6 to set aside an order improperly granted restraining a plaint- iff from continuing his suit at law till a motion for an elec- tion therein was disposed of ; 7 to allow temporary alimony and attorneys' fees to a wife during the pendency of a suit for a divorce and before permanent alimony had been set apart for her; s to reinstate a cause improperly stricken from the docket ; 9 to allow an amendment to a complaint; 1U to change the orders of a court relative to giving bonds in attachment proceedings; n to vacate in attachment proceed- ings an order to pay over the proceeds of a sale to the de- fendant on a claim of exemption, when the order was wrong and the defendant was insolvent; 12 to correct the error in the ruling of a judge in improperly refusing in vacation to grant a rehearing of a demurrer, which he had then sus- tained to the defendant's petition for a rehearing, when a judgment had been taken by default. 13 Notwithstanding these decisions there are other decisions from the same court declining to interfere in such cases. A mandamus to compel the dissolution of an injunction, upon the filing of the answer, was refused. The court said that it would i Lawrence, Ex parte, 34 Ala. 446. » King, Ex parte, 27 Ala. 387. 2 Thornton, Ex parte, 46 Ala. 384 9 State ex rel. Stow, 51 Ala. 69 ; 3 Ware, Ex parte, 48 Ala. 223. Abrams, Ex parte, 48 Ala 151. i North, Ex parte, 49 Ala 385; 10 South. & N. Ala. R.R., Ex parte, Bruce v. Williamson, 50 Ala 313. 65 Ala. 599 ; Lee v. Harper, 90 Ala. 5 Cole, Ex parte, 28 Ala 50 ; Rob- 548. bins, Ex parte, 29 Ala 71. u Haralson, Ex parte, 75 Ala 543. e Walker, Ex parte, 54 Ala 577. u Barnes, Ex parte, 84 Ala, 540. 7 Alabama etc. Co., Ex parte, 59 li Chastain v. Armstrong, 85 Ala. Ala 192. 215. § 199.] MANDAMUS TO COURTS. 247 not interfere with interlocutory orders, and that such an in- terference would be an intolerable nuisance. 1 The same rea- son seeins to have controlled the court in refusing a man- damus to compel the lower court to strike a case from the docket. 2 The court has refused to interfere by a mandamus to compel the court to accept the verdict of a jury, 3 or to grant a change of venue in a criminal case, 4 because such matters were within the discretion of the court. A man- damus to vacate an order suppressing depositions was re- fused. The reason assigned was, that the matter would come up on appeal, and that it would embarrass the court to review in this manner all of the decisions of the lower courts. 5 The court has lately shown a disposition to decline any interference in the case of interlocutory orders. It said that it had gone as far as it was willing in this direc- tion, and was inclined to restrain such jurisdiction, and that it would not award a mandamus when full relief could be obtained by appeal, writ of error or otherwise. The im- proper allowance of an amendment to the pleadings was considered to be no ground for a mandamus. The force of this decision was, however, broken by a further statement, that in a proper case the court might grant a mandamus to compel the allowance of an amendment to the plead- ings. 6 A mandamus was refused to compel the court to vacate an order, made at the instance of one of the liti- gants, setting aside an agreed statement of facts, 7 and to compel a judge to hear and determine a motion, which he had overruled on the ground that he had no jurisdiction to entertain it. 8 In the two last cases the court said that such rulings could be reviewed on appeal from the final judgments. i Montgomery, Ex parte, 24 Ala. 6 South, etc. R. R, Ex parte, 65 98. Ala. 599. * Garland, Ex parte, 43 Ala. 559. ' Hayes, Ex parte (Ala., April 9, s Henry, Ex parte, 24 Ala. 638. 1891), 9 South. Rep. 156. 4 Banks, Ex parte, 28 Ala 28. 8 Hum, Ex parte (Ala., June 16, 5Elston, Ex parte, 25 Ala. 72. 1891), 9 South. Rep. 515. 2 iS MANDAMUS TO COURTS. [§ 200. § 200. Interlocutory orders of courts may in Michigan be reviewed by writs of mandamus. — In Michigan the rule, that the interlocutory orders in a suit will not be re- vised or corrected by mandamus, has never been recognized. The writ has been issued : to vacate an order vacating the service of process on the defendant ; l to vacate an order re- scinding an order of removal of a cause ; 2 to rescind an order to a garnishee, founded on his return, to pay over money and certain notes to a receiver appointed by the court, who was instructed* to hold such articles till further orders, because the return did not justify such an order; 3 to vacate an order quashing an attachment sued out against two out of six defendants, because the affidavit was wrongly held to be insufficient; 4 to set aside a default without the payment of costs as required by the court ; 5 to set aside an injunction; 6 to vacate an order restoring an appeal which had been dismissed ; 7 to vacate the service of a civil capias which was wrongfully issued; 8 to vacate the confirmation of the report of commissioners appointed to condemn land, because the confirmation was made at a time when the court could not lawfully make it ; 9 to set aside the service of process on a person attending court as a witness in an- other case, which the lower court had refused to do ; 10 to vacate the service of a civil capias wrongfully issued; 11 to vacate an order restraining competent proceedings in a 1 People v. Wayne Circuit (Judge), refused, unless the court is con- 22 Mich. 493. vinced of the necessity of a suni- 2 People v. Wayne Circuit (Judge), mary interference. Mills v. Bre- 39 Mich. 115. voort, 77 Mich. 210; Detroit (City) 3 People v. Cass Circuit Judge, 39 v. Hosmer. 79 Mich. 384. Mich. 407. 7 Ellair v. Judge, 46 Mich. 496. 4 People v. Bay Co. Cir. Ct. (Judge), 8 Baldwin v. Branch Cir. Judge, A I Mich. 326. 48 Mich. 525. 5 Arno v. Circuit Court, 42 Mich. » Michigan C. R. R. v. Tuscola Co. 362. (Proh. Judge), 48 Mich. 638. ti Tawas, etc. R R v. Cir. Judge, 10 Mitchell v. Huron Co. Judge, 53 44 Mich. 479; Van Norman v. Cir. Mich. 541. Judge, 45 Mich. 204. A mandamus u Baldwin v. Branch Ct Judge, to set aside an injunction will be 48 Mich. 525. § 201.] MANDAMDS TO COURTS. 24'J court of co-ordinate jurisdiction ; 1 to set aside a verdict and grant a new trial, on account of the misconduct of the jury ; 2 to set aside an order, granted on a mere motion, which set aside a decree ; 3 to vacate an order setting aside the service of a subpoena and the subsequent proceedings in a foreclosure suit; 4 to grant a new trial; 5 to vacate an order punishing for contempt of court, and to restrain further steps in enforcing an injunction ; G to vacate a nonsuit ; ' to a chancellor to hear and decide a cause himself, wherein he had entered a decree upon the findings of a jury. 8 The court has declined to enter into the investigation of the merits of a chancery case till there was a final judgment and the case was brought regularly before the court; 9 and it will inter- fere to disturb the action of a judge in equity only in a case of exigency demanding prompt action. 10 A mandamus lies in Michigan to correct the action of the trial court in order- ing the plaintiff to give a bill of the particulars of his de- mand, if such order goes beyond what is properly required to be stated in such a bill. 11 Where, however, a party was convicted of murder, which judgment was reversed and a new trial ordered, whereupon the court admitted him to bail, but during the second trial ordered him into custody, a mandamus was refused to compel the trial court to admit him again to bail. 12 § 201. Mandamus cannot take the place of an appeal or writ of error. — Under the general rule, that a man- i Maclean v. Speed, 52 Mich. 257. * Scott v. Chambers, 62 Mich. 532. 2 Churchill v. Emerick, 56 Mich. ' Lindsay v. Circuit Judge, 63 536. Mich. 735. 3 York v. Ingham, 57 Mich. 421. 8 Brown v. Buck, 75 Mich. 274. 4 Low v. Mills, 61 Mich. 35. 9 Chesebro v. Montgomery, 70 5 Gray v. Barton, 62 Mich. 186. Mich. 650. The discretion of a court in refusing 10 Detroit, etc. R. R. v. Newton, 61 a new trial will only be interfered Mich. 33. with to correct an abuse thereof. " Van Vranken v. Gartner, 85 The abuse of discretion must be Mich. 140. gross and palpable to justify an in- li Hull v. Reilly, 87 Mich. 497 ; 49 terference in any case. Detroit, etc. N. W. Rep. 869. Co. v. Gartner, 75 Mich. 360. 250 MANDAMUS TO COURTS. [§ 201. damns will not lie where the law has provided another remedy, this writ will not lie to review or correct a judg- ment or decree, where the law provides a remedy by ap- peal or writ of error. 1 The inconvenient delay attending an appeal is no ground for a mandamus? A mandamus will not be allowed to usurp the functions of an appeal, a writ of error or a certiorari? or to anticipate or forestall judicial action. 4 Because the action of the court was a final judgment from which an appeal lay, the writ of mandamus 1 Baltimore, etc. R R, Ex parte, 108 U. S. 566 ; Hemphill v. Collins, 117 111. 396 ; State v. Engelman, 86 Mo. 551; Kendall v. Lassiter, 68 Ala. 181; State v. Lubke, 85 Mo. 338; State v. Orphans' Court (Judge), 15 Ala. 740 ; State v. Kin- caid, 23 Neb. 641. In a few in- stances this rule has been departed from. Where a judgment was granted without proper notice to the defendant, which the court re- fused to set aside, mandamus was considered to be the only remedy. People v. Bacon, 18 Mich. 247. In another case it was held that the is- suance of the writ was optional with the court. Lloyd v. Chambers, 56 Mich. 236. The writ was refused, in one instance, because the writ of error would contain everything necessary to determine the matter. Olson v. Muskegon Circuit Judge, 49 Mich. 85. A mandamus was considered to be preferable to a writ of error where an indictment was wrongfully quashed for sup- posed lack of jurisdiction. People v. Swift, 59 Mich. 529. A man- damus was considered to be admis- sible to compel a judge to dissolve a writ of piohibition (Ray, Ex parte, 45 Ala. 15; Boothe, Ex parte, 64 Ala. 312), and to reverse the action of the court improperly granting (North, Ex parte, 49 Ala 385) or refusing (O'Neal v. Kelly, 72 Ala. 559) a rehearing. Where a court refused to entertain proceedings for contempt for disobedience of an injunction, holding erroneously that an appeal suspended the in- junction, a mandamus was allowed to compel it to issue an attach- ment and examine into the matter, on the ground that an appeal was not speedy nor adequate relief. Merced Min. Co. v. Fremont, 7 Cal. 130. 2 Perry, Ex parte, 102 U. S. 18a To allow a mandamus for that rea- son would overload the higher court, and would render the posi- tion of the judge of the lower court intolerable. State v. Horner, 16 Mo. Ap. 191. 3 Hoard, Ex parte, 105 U. S. 578 ; State v. County Court, 33 W. Va. 589 ; Morgan, Ex parte, 2 Chit 250 ; Little v. Morris, 10 Tex. 263 ; Ewing v. Cohen, 63 Tex. 482; State v. Wright, 4 Nev. 119; Railway Co., Ex parte, 103 U. S. 794 ; Smyth v. Titcomb, 31 Me. 272 ; People v. Dis- trict Court, 14 Colo. 396; State v. Nelson, 21 Neb. 572 ; State v. Cooper Co. Court, 64 Mo. 170; Jansen v. Davison, 2 John. Cas. 72 ; Miller v. Tucker Co. Court, 34 W. Va. 285. 4 Page v. Clopton, 30 Grat. 415. § 201.] MANDAMUS TO COURTS. 251 has been refused: to set aside a dismissal for failure to pay- costs pursuant to an order of continuance; 1 to amend a judgment for the work of a mechanic so as to make it a lien on the land, as prayed in the petition; 2 to vacate a judg- ment entered nunc pro tunc, the plaintiff having died after the referee's report was made, but before the judgment was entered ; 3 to set aside an order sending a case for trial to the probate court on a plea to the jurisdiction; 4 to compel the entry of a judgment for costs; 5 to set aside a dismissal of a rule to show cause why an execution should not issue, 6 and to compel the granting of letters of administration to K. pendente lite? Where a judgment for the plaintiff is ar- rested, he should apply for a judgment against himself, and upon refusal to grant such judgment a mandamus will lie to compel the granting thereof. Then, after the judgment is granted, the plaintiff can appeal. 8 A mandamus will not lie to compel a court to render a judgment of acquittal in a criminal case. If the defendant is put on trial again, the matter can be determined on appeal. 9 A mandamus will not lie to a county judge to recall an order made after the final judgment, since such order can be brought up by ap- peal. 10 Where, however, such appellate proceedings will not be an adequate remedy, the fact that they may be re- sorted to will not be a bar to seeking redress by man dam us. 11 On account of the absence of other remedy, a mandamus will lie : to vacate an order of discovery improperly granted, compelling the production and deposit of a party's business books; 12 to set aside an order quashing an indictment al- leged not to be properly found ; 13 to set aside the dismissal of an appeal from a nonsuit, since a return to a writ of i Hendree, Ex parte, 49 Ala. 360. &Bostwick, Ex parte, 1 Cow. 143. 2 Schmidt, Ex parte. 62 Ala. 252. » Cage, Ex parte, 45 Cal. 248. SKoon, Ex parte, 1 Denio, 644 10 People v. Moore, 29 Cal. 427. * State v. Morgan, 12 La. 118. « Merced Mining Co. v. Fremont, 5Peralta v. Adams, 2 Cal. 594. 7 Cal. 130. estate v. Judge Fourth Dist., 19 I2p e0 ple v. Kent Cir. Ct (Judge), La. An. 4. 38 Mich. 351. 1 Barksdale v. Cobb, 16 Ga. 13. 13 People v. Swift, 59 Mich. 529. 252 MANDAMUS TO COURTS. [§§ 202, 203. error will not disclose the whole proceedings on the special motion to dismiss ; l and to review the circuit court's action in ordering a justice of the peace to make return of a case appealed from his decision, wherein his fees for such return have not been paid. 2 If a writ of error is informal, the rem- edy of the defendant in error is to vacate the writ, and not to ask for a mandamus to carry the judgment into execu- tion. 3 Where through his own negligence a party has per- mitted the time allowed for taking his appeal to pass with- out utilizing it, he will not therefore be allowed to review the action of the court by a mandamus. A neglect to avail himself of the remedies allowed to a person by law is no reason why other remedies not allowed to him should be accorded to him. 4 § 202. Mandamus will not always lie, though appeal or writ of error not allowable. — Though it has been said that a mandamus will not lie when an appeal or writ of error is admissible, yet the converse of this proposition must not be considered to be of universal acceptance. A judgment of a court is a judicial determination, and the general rule is, that a mandamus does not lie to review or vacate the decision of any tribunal intrusted with delibera- tion and judgment, and it has been refused, though no other mode of review was admissible. 5 As has been stated before, a mandamus will not lie to review a decision which the law evidently intended to be final. 6 § 203. Mandamus lies to compel a court to try a cause, when it refuses to do so upon the erroneous decision that it has no jurisdiction. — When a court refuses to pro- ceed and try a cause, erroneously deciding that it has no jurisdiction, it will be compelled by the writ of mandamus i People v. Wayne Cir. Ct. 29 Wis. 79 ; State v. Fuhler, 90 (Judge), 30 Mich. 98. Mo. 560. 2 People v. Allegan Circuit SEwing v. Cohen, 63 Tex. 482; (Judge), 29 Mich. 487. State v. Wright. 4 Nev. 119; People 3 French, Ex parte, 100 U. S. 1. v. Garnett, 130 II!. 340. 4 State v. Sheboygan Co. (Sup'rs), 6 See §g 47, 48, 313. § 203.] MANDAMUS TO COURTS. 253 to assume jurisdiction and proceed with the cause. 1 The same rule applies in proceedings for contempt of court, 2 and in criminal cases. 3 The writ will be granted when the court improperly declines to hear a cause, alleging its own in- competency or that of the petitioner. 4 Where, however, a defendant has entered a plea to the jurisdiction which has been sustained, and the action has been dismissed, a man- damus has been refused, because there was a final judgment in such case from which a writ of error would lie, and there- fore there was no call for a mandamus, which ordinarily only issues when there is no other adequate remedy. 5 A dismissal of a writ of error by a territorial supreme court, for failure to docket it in time, w r as not considered to be a final judgment, and, as neither a writ of error nor an appeal would lie from such action, a mandamus was considered to be the only remedy to compel a hearing of the writ of error. 6 "When a court refused to take cognizance of an ap- i People v. Swift, 59 Mich. 529 ; State v. Warner, 55 Wis. 271 ; Ex parte Parker, 120 U. S. 737 ; Ex parte Schollenberger, 96 U. S. 3G9; Ex parte Pennsylvania Co., 137 U. S. 451, 11 S. C. R 141 ; State v. Murphy, 19 Nev. 89 ; R v. Kent (Just.), 14 East, 895; Beguhl v. Swan, 39 Cal. 411; Ex parte Russell, 13 Wall. 664; Floral, etc. Co. v. Rives, 14 Nev. 431 ; State v. County Commission- ers, 83 Ala. 304 ; Ex parte Dickson, 61 Ala. 188; R. v. Monmouth, L. R. 5 Q. B. 251 ; Kent v. Dickinson, 25 Grat. 817; State v. Hamilton Co. (Commissioners), 26 Ohio St. 364 Cowan v. Fulton, 23 Grat 579 Cavanaugh v. Wright, 2 Nev. 166 State v. Sachs (Wash., Nov. 12, 1891). 27 Pac. Rep. 1075; Ex parte Henderson, 6 Fla. 279; Hollou Parker, Petitioner, 131 U. S. 22i ; Ex parte United States, 16 Wall. GI)9 ; Ex parte Parker, 120 U. S. 737 ; Territory v. Judge District Court, 5 Dak. 275. Contra, People v. Gar- nett, 130 111. 340. 2 Temple v. Superior Court, 70 Cal. 211. 3 State v. Laughlin, 75 Mo. 358; People v. Scates, 3 Scam. 351. * Ex parte Russell, 13 Wall. 664. 5 Ex parte Pennsylvania Co., 137 U. S. 451, 11 S. C. R. 141 ; Ex parte Baltimore, etc. R R, 108 U. S. 566. The same conclusion was reached in People v. Garnett, 130 III. 340. The court considered that, in dis- missing a case for want of jurisdic- tion, a court judicially determines a question incident to the proceed- ings, and in passing on it acts judi- cially, and that a mandamus would not lie to reinstate the case. Though there might be no other mode of reviewing the action of the court, yet a mandamus was not considered to be admissible. 6 Harrington v. Holler, 111 U. S. 796. 254 MANDAMUS TO COUETS. [§ 204. peal, claiming that the proper preliminary steps had not been taken, and dismissed it, a mandamus was granted to compel the court to hear the appeal. 1 § 204. When a court for any cause improperly refuses to proceed iu a cause, mandamus lies to compel action. So, if for any reason a court refuses to act or entertain the question for its decision, and such duty is enjoined on it by law, a mandamus can be obtained to compel the court to consider the question. 2 In such cases the court is required to proceed, but is not instructed to adopt any particular conclusion or judgment. 3 The writ has been issued to com- pel a court to proceed in a cause : which had been remanded to it from the federal court ; 4 which had been transferred to it from another state court ; 5 when it had stayed all pro- ceedings till its further order; 6 when it had refused to try the cause till other unknown persons were made parties to it, 7 till a cause pending in another court was determined, 8 or till the plaintiff had filed an account ; 9 and when it had continued the cause without a proper showing. 10 By this writ it may be stated generally, that a court will be required to hear and determine a cause, or, if the cause has been heard, to render a judgment or enter up a decree. 11 The iudo-e must render his decision within a reasonable time i Ex parte Parker, 120 U. S. 737. Pleas (Judges) v. People, 18 Wend. 2Knarr's Petition, 127 Pa. St. 554; 79; Territory v. Judge Dist. Ct., 5 Hollon Parker, Petitioner, 131 U. S. Dak. 275. 221 ; Austen v. Probate Court, 35 4 Kleiber v. MeManus, 06 Tex. 48. Mo. 198 ; People v. De La Guerra, 43 5 People v. Zane, 105 111. 662 ; State Cal. 225 ; Union Colony v. Elliott, 5 v. O'Bryan, 102 Mo. 254. Colo. 371 ; Brem v. Arkansas Co. 6 Rhodes v. Craig, 21 Cal. 419 ; Court, 9 Ark. 240. Culver v. Judge, 57 Mich. 25. 3 Ex parte Shandies, 66 Ala. 134 ; 7 State v. Commercial Court Ewing v. Cohen, 63 Tex. 482 ; Board (Judge), 4 Rob. 227. of Police v. Grant, 9 Sm. & M. 77 ; 8 Avery v. Contra Costa Co. (Sup. Jones v. Allen, 13 N. J. L. 97 ; Life, Ct.), 57 Cal. 247 ; Dunphy v. Belden, etc. Co. v. Adams, 9 Pet. 571 ; Ter- 57 Cal. 427 ; Budd v. New Jersey, ■ ritory v. Ortiz. 1 N. Mex. 5 ; Ex etc. Co., 14 N. J. L. 467. parte Hoyt, 13 Pet. 279; State v. 9 People v. Pearson, 1 Scam. 458. Kendall, 15 Neb. 262 ; People v. Dis- 10 Dixon v. Field, 10 Ark. 243. trict Court, 14 Colo. 396 ; Oneida C. » State v. Williams, 69 Ala, 311 ; § 205.] MANDAMUS TO COURTS. 255 after the cause is submitted to him. 1 A delay of five months was considered to be too great, and the writ was issued requiring the judge to decide the cause at once. 2 The writ has also been issued : to compel the granting of the probate of a will; 3 to compel the commissioners of a bank- rupt to issue a warrant for his further examination; 4 to compel an officer before whom a prisoner is brought on habeas corjncs, after commitment from a justice to await indictment, to hear and pass on the evidence offered touch- ing his guilt; 5 to compel a probate court to proceed and settle the accounts of an administrator; 6 to compel the reinstatement of a cause improperly stricken from the docket. 7 Where, however, a court puts off a hearing of an application only for a reasonable time, mandamus will not lie, since there is no abuse of the discretion of the court. 8 A mandamus will not be issued to compel a circuit court to proceed and try a cause, when an injunction has been al- lowed in that or in some other court to restrain further proceedings in such cause ; 9 and for a similar reason a pro- bate judge was not required to proceed in the settlement of an estate. 10 § 205. Disputed question whether appeal or man- damus lies upon the erroneous dismissal of an appeal hy the lower court. — Since, in order to enforce the per- formance of a plain duty, a mandamus may issue to a court which improperly omits or declines to proceed in a cause, it is argued that the dismissal of an appeal is a refusal to proceed, and that, therefore, a mandamus will run to com- pel a court to entertain an appeal which it has wrongfully Miller v. Tucker Co. Court, 34 W. estate ex rel - Stow > 51 Ala - 69 ; Ex Va. 285. parte Lowe, 20 Ala. 330 ; State v. 1 Com. v. McLaughlin, 120 Pa. St. Cape Girardeau C. P. Court, 73 Mo. 518. 560. 2 State v. Lazarus, 37 La. An. 610, » Stone v. McCann, 79 Cal. 400. 614 » People v. Muskegon Cir. Ct s Justice and Jones, 1 Barn. 280. (Judge), 40 Mich. 63. * Bromley, In re, 3 D. & K. 310. 10 State v. Orphans' Court (Judge), 5 Ex parte Mahone, 30 Ala. 49. 15 Ala. 740. eShadden v. Sterling, 23 Ala. 518. 256 MANDAMUS TO COURTS. [§ 205. dismissed. 1 On the other hand, it is claimed that the dis- missal of an appeal is a judicial action, and that a mandamus does not lie to review judicial action or to correct judicial errors, 2 though there be no other mode of reviewing such ruling-. 3 It is claimed that a mandamus does not lie to make a court give a particular judgment, but merely to give a judgment, and this by its dismissal of the appeal it has already done, and that in such cases a writ of error will lie, and that, such other remedy existing, it is not proper to allow a mandamus.^ With many courts the right to issue a man- damus in such cases seems to turn on the question whether such dismissal of an appeal is to be regarded as a final judg- ment, in which case a mandamus is refused, because another remedy is provided by statute, namely, an appeal or writ of error. 5 This rule is adopted by the supreme court of the United States. In that court, when an appeal has been dis- missed by a lower court upon a formal plea to the jurisdic- tion, such dismissal is regarded as a final judgment, which may be reviewed by appeal or writ of error, and a man- damus to review such action will be refused. 6 On the other hand, that court has granted a writ of mandamus to compel a circuit court to reinstate and hear an appeal in a bank- ruptcy case from a district court, 7 and to compel a court to reinstate an appeal which it had wrongfully refused to en- tertain on account of alleged irregularities in perfecting the appeal. 8 The weight of authority seems to be that a writ of mandamus will lie in all cases to compel the reinstate- i Jones v. Allen, 13 N. J. L. 97 ; « Com. v. Philadelphia C. P. Ten Eyck v. Farlee, 1G N. J. L. 348 ; (Judges), 3 Binn. 273. Freas v. Jones, 1G N. J. L. 358; 5 State v. Smith, 19 Wis. 531; Adams v. Mathis, 18 N. J. L. 310. Goheen v. Myers, 18 B. Mon. 423. 2 Ewing v. Cohen, 63 Tex. 482 ; 6 Baltimore, etc. R. R, Ex parte, People v. Dutchess C. Pleas, 20 108 U. S. 566; Railway Co., Ex Wend. 658 ; State v. Wright, 4 Nev. parte, 103 U. S. 791. 119 ; People v. Weston, 28 Cal. 639 ; '• Insur Co. v. Comstock, 16 Wall. Goheen v. Myers, 18 B. Mon. 423 ; 258. State v. Smith, 105 Mo. 6; 16 S. W. »Hollon Parker, Petitioner, 131 Rep. 1052. U. S. 221. 3 People v. Garnett. 130 111. 340. § 206.] MANDAMUS TO COURTS. 257 ment of an appeal, except when another remedy, as appeal or writ of error, is provided by statute, or the law evidently contemplates that the action of the court which dismissed the appeal shall be final. 1 § 206. When an appeal is wrongfully dismissed for matters occurring subsequent to its docketing, it may be reinstated on the docket by a mandamus.— THien an ap- peal has been wrongfully dismissed for matters occurring subsequent to its docketing, as for lack of prosecution or for errors, which the party should have been allowed to correct by amendment, a mandamus has been granted to reverse such action. 2 In those states where such action is considered to be a final judgment, an appeal or writ of error would be the proper remedy, provided there be an appellate court with authority to review such final judg- ments. The existence of such a remedy is considered to be a good reason why a writ of mandamus should be refused. "Where a court wrongfully dismissed an appeal on account of matters occurring subsequent to its docketing, a man- damus was issued to compel the reversal of such action. The power to issue the writ in that case was claimed by virtue of a superintending control over all other courts, given by the constitution to the higher court, though in the case in hearing such court had no appellate jurisdiction. This superintending control was held to be as broad as the ■exigency of the case demanded. The court reviewed the question of the legality of the issue of the writ of man- damus in such cases, and considered the law on the subject to be in a state of " painful vibration." 3 1 Among the cases which have 27 Mich. 303; Garrabrant v. Mo- allowed the writ in such cases may Cloud, 15 N. J. L. 4C2; Ten Eyckv. be cited : Hart v. Circuit Judge, 56 Farlee, 1 J. Harr. (N. J.), 269, 348 ; Mich. 592; People v. Cir. Judge Thorpe v. Keeler, 3 Harr. (N. J.), Third Circuit, 19 Mich. 296 ; State v. 251; Brown, Ex parte, 116 TJ. S. Bergen C. Pleas (Judges), 2 Penn. 401. 737. s state v. Philips, 97 Mo. S3L 2 People v. Wayne Cir. Ct (Judge), 17 258 MANDAMUS TO COUKTS. [§§ 207, 208, § 207. When a mandamus lies to compel a court to hear a cause when it has declined to hear it by reason of an erroneous decision on some preliminary question. — When a court has refused to go into the merits of the action on an erroneous construction of some question of practice preliminary to the whole case, a mandamus will issue to compel it to go on and try the case. 1 In fact the erroneous decisions of a court upon preliminary questions, which in- duce it to decline to proceed further, may be reviewed by this writ, if such questions are questions of law, and also when such questions are questions of fact, provided the gen- eral nature of the duties whose performance is sought by this writ are considered to be ministerial, and the law did not intend the decision of the lower court on such pre. liminary matters to be final. 2 § 208. Mandamus to compel the allowance of an ap- peal. — Where a party is entitled to an appeal from a decree or judgment against him, he may by the assistance of the writ of mandamus compel the allowance of such an appeal, the duties of the court in such case being merely minis- terial. 3 The court will be required by this writ to do all acts necessary to make the right of appeal efficacious : to enter a nunc pro tunc order as of date of the motion ; 4 to make a record of the allowance of an appeal from a judg- ment of the probate court ; 5 to allow an appeal from the probate of a codicil to a will ; 6 to make out and deliver a transcript for the appeal or writ of error ; 7 and to entertain an application for the examination of an appeal bond, and, if found sufficient, to grant a supersedeas. 8 It is no objec- i State v. Ellis, 41 La. An. 41. Wall. 752 ; Louisville Lid. School 2 gee §§ 44, 45, 46, 47 and 48, v. Louisville (City), 88 Ky. 584. where the question is reviewed. 4 McCreary v. Rogers, 35 Ark. 298. 3 Ware v. McDonald, 62 Ala. 81 People v. Prendergast, 117 111. 588 State v. Murphy, 41 La. An. 526 5 Beebe v. Lockert, 6 Ark. 422. 6 Greathouse v. Jameson, 3 Colo. 397. Hall v. Audrain Co. (Court), 27 Mo. "• Rodgers v. Alexander, 35 Tex. 829; United States v. Gomez, 3 116. s State v. Lewis, 71 Mo. 170. § 209.] MANDAMUS TO COUKTS. 259 tion that the time for the doing of the act by the judge or court has expired, if the application was made in proper time. A party is not to be deprived of such rights by the negligence of public officers. 1 § 209. Mandamus will not lie to a court wlieu there is another remedy. — Since a writ of mandamus issues be- cause there is no other adequate remedy, and justice and good government require a redress of the wrong, a court will not be required by this writ to take any action when another remedy is provided. A mandamus will not lie to compel a court to set aside its order, which set aside an office judgment and allowed a party to plead, because the relator can ask for an execution on that judgment, and upon the refusal to grant his request can appeal to the appellate court. 2 In committing a party to jail, or in requiring bond for his appearance to answer to a charge of crime, the judge or court acts judicially, and the correctness of the order or judgment cannot be inquired into by a mandamus. A man- damus will not lie to compel a court or magistrate to dis- charge a person alleged to be improperly detained under process therefrom. A habeas corpus is the usual remedy. 3 A mandamus will be refused : to compel a judge, whose brother-in-law is to be tried before him, to interchange with another judge, when the law provides that a lawyer may be selected to try the case ; 4 to compel a circuit court to grant an appeal when the appellate court can grant it ; 5 to compel a court to approve the security for a writ of error when a justice of the appellate court can do it ; a to compel the court to withdraw its order not allowing a transcript to be made, though an appeal has been granted, till the appeal bond is filed, since a writ of error will take up the transcript as effectually as an appeal. 7 i State v. Lewis, 71 Mo. 170. « Byrne v. Harbison, 1 Mo. 225. 2Goolsby, Ex parte, 2 Grat 575. 6 Virginia Com'rs, Ex parte, 112 3 Graves, Ex parte, 61 Ala. 381. U. S. 177. i State v. Judges, 29 La. An. 785. 7 State v. Engleman, 45 Mo. 27. 260 MANDAMUS TO COURTS. [§§ 210, 211. § 210. Litigants cannot by agreement create duties which courts may he compelled by mandamus to per- form.— Since the writ of mandamus lies only to enforce duties imposed by law, litigants cannot by their agreements create such duties for courts and ask for the assistance of this writ to compel the courts to perform them. A man- damus will not lie, where there is no law creating the duty : to compel a court to change the venue of a criminal case on the agreement of the parties ; l to compel a court to sign the report of the referees by virtue of a stipulation of the litigants, that referees should be appointed by the court to determine certain disputed facts, whose report, when filed, should be the finding of the court and should be signed by the judge ; 2 to compel a chancellor to dismiss a cause on motion in pursuance of a written agreement between the parties, 3 or to compel a court to strike a cause from the docket on motion, on the ground that it has been discon- tinued by a submission to arbitration. 4 § 211. Special instances where a mandamus was not re- quired or would have been inefficacious.— A writ of man- damus will not run to a court acting under a special commis- sion, which has expired by its own limitation. 5 Where a non- resident was arrested and required to give bail, which he did, a mandamus to discharge his bail was refused ; if the arrest was valid no wrong was done, and if the arrest was invalid his bail was not liable. 6 Where property was paid into the probate court in condemnation proceedings and wrongfully detained by the judge from the party en- titled to it, it was considered that the judge held the prop- erty as an individual, and that an action on his bond was the remedy, and that a mandamus would not lie to compel payment till an action on the bond had proved unavailing. 7 1 Dennis, Ex parte, 48 Ala. 304. 5 People v. Monroe O. and Ternri- 2 State v. McArthur, 23 Wis. 427. ner, 20 Wend. 108. a Rowland, Ex parte, 26 Ala. 133. 6 Small, Ex parte, 25 Ala. 74. « Garlington, Ex parte, 26 Ala. ' State v. Meiley, 22 Ohio St. 534. 170. § 212.] MANDAMUS TO COURTS. 261 § 212. Mandamus to justices of the peace.— The writ of mandamus has often been issued to compel justices of the peace to perform their ministerial duties or to proceed to take action in judicial matters. By this writ a justice has been compelled : to issue summons against certain parties for combining and conspiring to break the peace ; x to hear and determine an information brought before them ; 2 to allow a change of venue in a suit when the law had been com- plied with ; 3 to hear an appeal ; 4 to assess the damages on the dismissal of a case in replevin; 5 to render judgment on the verdict of a jury, fi but not when the verdict is void ; 7 to make correct entries in his docket according to the real facts ; 8 to render a judgment of dismissal ; 9 to proceed with the preliminary examination of one charged with an of- fense ; 10 to tax the costs on the dismissal of a suit ; " to com- pel the allowance of the examination of a garnishee, which he refused to allow on the ground that his judgment against the principal was invalid, when such judgment was in re- ality legal; 12 to make a true record of the judgment ren- dered and furnished a copy thereof; 13 to issue an execution 1 Q. v. Adamson, 1 Q. B. D. 201. 3 State v. Clayton, 34 Mo. Ap. 563. 2 Rex v. Tod, 1 Stra. 530; Q. v. *King v. Suffolk (Just), 1 B. & Brown, 7 Ellis & B. 757 ; People v. A. 640. Barnes. 66 Cal. 594. A return that 5 Johnson v. Dick, 69 Mich. 108. they had heard and dismissed the 6 Foreman v. Murphy, Penu. 1024. information, because it was filed 7 Moore v. State, 72 Ind. 358. after the time limited by the stat- » State v. Van Ells, 69 Wis. 19. ute, was considered to be good, as 9 Anderson v. Pennie, 32 Cal. 265. showing that the information bad 10 People v. Barnes, 66 Cal. 594. been heard. Q. v. Mainwaring, " State v. Engle, 127 Ind. 457. Ellis, B. & C. 474. Where it was »2 State v. Eddy, 10 Mont. 311. doubtful from the evidence offered " Smith v. Moore, 38 Conn. 105. A whether a prior action for the same court will refuse to issue a man- cause was dismissed on the merits damns to correct the entry of his or for error in law, upon the decis- judgment, if the application is made ion whereof depended the right to a long time after its rendition. Gar- bring the suit then pending, the nett v. Stacy, 17 Mo. 601. An entry court required the justices to set by a justice of the peace in his aside their dismissal of such suit docket of the time of presentation and to rehear it. Q. v. Bridgman, to him of an appeal bond is a de- 15 L. J. N. S. 44, M. C. termination by the proper tribunal 3 202 MANDAMUS TO COURTS. [§ 212. on his judgment, 1 even though the judgment is erroneous, provided it is not void ; 2 to issue a writ of restitution in ex- ecution of a judgment in favor of a plaintiff under the land- lord and tenant act, when the appeal bond in the case was not filed within the time prescribed by the rules of court ; " to issue an execution on his judgment, though his judgment has been reversed on appeal, when by law no appeal was allowed ; 4 to issue a supersedeas to his execution upon the defendant's filing his schedule of exempt property; 5 to grant an appeal upon compliance by the appellant with the requirements of the law, 6 when the law had furnished no other mode of obtaining the allowance of the appeal ; 7 to certify a case upon appeal to the higher court with the proper papers ; 9 to make up his record in due form in an appeal case, and to furnish the appellant with a copy in due form of the recognizance taken, though entered on his docket only by a minute entry; 9 to sign a bill of excep- tions as provided by law ; 10 to approve a proper bond, offered for an appeal ; " and to keep his office in the precinct for which he was elected. 12 Where a justice of the peace has a discretion as to his action, a mandamus will not lie, as in accepting the report of referees in a cause and entering up judgment thereon, 13 or in refusing to transfer a cause. 14 A of the fact of the time when the 5 Smith v. Ragsdale, 36 Ark. 297. game was presented for purposes 6 Martin, Ex parte, 5 Ark. 371; of appeal. It thus involves the as- Morris, Ex parte, 11 Grat. 292; certainment and record of a ques- Levy v. Inglish, 4 Ark. 65. tion of fact, the entry of which can- ' state v. McAuliffe, 48 Mo. 112 ; not be regarded as a purely minis- Chicago, etc. R R. v. Franks, 55 terial act A mandamus to make a Mo. 325. justice of the peace correct such an 8 Orange (Town) v. Bill, 29 Vt, entry was refused. Mooney v. Ed- 442 ; People v. Harris, 9 Cal. 571. wards, 51 N. J. L. 479. 9 Ballou v. Smith, 29 N. H. 530. i Terlmne v. Barcalow, 11 N. J. L. w Ohio v. Wood, 22 Ohio St. 537. 38 ; King and Montague, 1 Barn. 72 ; " Cox v. Rich, 24 Kans. 20. Hamilton v. Tutt, 65 Cal. 57. 12 State v. Shropshire, 4 Neb. 411. *Hogue v. Fanning, 73 CaL 54 13 Farwell, Petition of, 2 N. H. 123. 3 Kirk v. Cole, 3 MacArthur, 71. 14 People v. Hubbard, 22 CaL 34. * Laird v. Abrahams, 15 N. J. L 22. § 212.] MANDAMUS TO COURTS. 2G3 mandamus will not lie to compel a justice of the peace to treble the damages in a judgment in forcible entry and de- tainer, since there is a remedy by appeal. 1 "Where a mag- istrate has by judgment committed the accused to jail, he cannot be required to examine the witnesses in the case and reduce their testimony to writing, as he has no longer any jurisdiction of the case. 2 When an appeal from a jus- tice of the peace is pending in the circuit court, the ques- tion of the jurisdiction of the circuit court can be determined there, and will not be determined by a mandamus to com- pel the justice to issue an execution, because a mandamus is only issued when there is no other remedy. 3 A magis- trate who has convicted a person will not be compelled to levy the penalty of such conviction, when it is shown by the return that the conviction was illegal because there was no law making the act charged an offense. 4 The courts will not compel a magistrate to do an act, where they see a legal probability that an action may be maintained against him for such action, 5 especially where no indemnity has been tendered to him. 6 i Early v. Mannix, 15 CaL 149. King v. Mirehouse, 2 Ad. & E. 632 ; 2 State v. Miller, 1 Lea, 596. King v. Broderip, 5 B. & C. 239, 7 3 People v. Huntoon, 71 111. 536. D. & R. 861 ; King v. Halls, 3 A. & 4 King v. Robinson, 2 Smith (K E. 494 B.), 274. o King v . Somersetshire (Just), 4 5 King v. Greame, 2 Ad. & E. 615 ; N. & M. 394. CHAPTER 15. WHAT COUETS ISSUE THE WRIT OF MANDAMUS. § 213. Courts of general common-law jurisdiction issue writs of man- damus. 214. In issuing writs of mandamus courts exercise original or appel- late jurisdiction. 215. Issue of writs of mandamus by appellate courts. 216. Issue of mandamus by the United States supreme court 217. Issue of writs of mandamus by subordinate federal courts. 218. Mandamus by federal courts to levy a tax to pay their judg- ments. § 213. Courts of general common-law jurisdiction issue writs of mandamus. — The power of any court to issue the writ of mandamus is generally settled by constitutional provision or by statute. In the absence of any such pro- vision, such power is considered to be lodged in that court whose jurisdiction corresponds with that of the court of king's bench. Such court is the highest court of original jurisdiction, 1 which courts are generally designated as cir- cuit or district courts. 2 The power to issue the writ is said to be incident to superior courts. 3 Since the power of is- suing this writ is by the common law lodged in the court, it has been denied to the judge during the vacation of the court. 4 § 214. In issuing writs of mandamus courts exercise original or appellate jurisdiction. — In issuing a writ of mandamus a court may be exercising its original jurisdic- 1 Kendall v. United States, 12 Pet 6 Fla, 279 ; Judd v. Driver, 1 Kans. 524; Chumasero v. Potts, 2 Mont. 455. 242. 8 state v. Todd, 4 Ohio, 351 ; Grier 8 Nichols v. Comptroller, 4 Stew. v. Shackleford, 3 Brev. 491. & Port 154 ; Henderson, Ex parte, * Grant, Ex parte, 6 Ala. 91. See Bean v. People, 6 Colo. 98. §§ 215, 216.] WHAT COURTS ISSUE WKIT OF MANDAMUS. 265 tion, or it may be exercising its appellate or supervisory jurisdiction. When a writ of mandamus is issued to an officer it is an exercise of original jurisdiction ; but its issu- ance to an inferior court is an exercise of appellate or su- pervisory jurisdiction. 1 § 215. Issue of writs of mandamus by appellate courts. — In many cases, where the highest appellate court can only issue the writ of mandamus in aid of its jurisdic- tion, it has refused to issue the writ except in cases which directly affected the exercise of its appellate powers. 2 Other courts, which were given a general superintending and su- pervisory control over inferior courts, have claimed a right to issue a mandamus to such courts as broad as the exigency of the case. 3 When both the appellate and the inferior courts have original jurisdiction in mandamus proceedings, the appellate courts, owing to their crowded dockets, will compel litigants in the first instance to apply for the writ to the inferior courts, unless in a case of far more than or- dinary magnitude and importance. 4 § 216. Issue of mandamus by the United States su- preme court. — The United States supreme court, except in a few cases which seldom occur, has by the provisions of the United States constitution only appellate jurisdiction, and it is not in the power of congress to confer original 1 Crane, Ex parte, 5 Pet 190 ; Peo- trial in the lower court the higher pie v. Bacon, 18 Mich. 247 ; Tawas, court cannot exercise its appellate etc. E. R. v. Iosco Cir. Judge, 44 jurisdiction. State v. Hall, 6 Baxt. Mich. 479. 3 ; King v. Hampton, 3 Hay w. 59. 2 State v. Judge Fourth Dist., 17 A mandamus to sign a bill of ex- La. An. 282 ; State v. Elmore, 6 ceptions is considered to be an exer- Cold. 528 ; State v. Biddle, 36 Ind. cise of appellate jurisdiction. State 138 ; Whitfield v. Greer, 3 Baxt. 78 ; v. Hall, 3 Cold. 255. Ing v. Davey, 2 Lea, 276 ; Grigsby 3 state v. Philips, 97 Mo. 331 ; Mc- v. Bowles, 79 Tex. 138 ; Daniel v. Creary v. Rogers, 35 Ark. 298. Warren Co. Court, 1 Bibb, 496; * State v. Cooper Co. Court, 64 Westbrook v. Wicks, 36 Iowa, 382. Mo. 170 ; State v. Breese, 15 Kans. The writ has been refused to compel 123 ; State v. Juneau Co. (Sup'rs), 38 the court to proceed to try a cause Wis. 554 ; McBride v. Grand Rapids whereas such action would seem to (Com. Council), 32 Mich. 360. warrant its issue, since without a 2GG WHAT COURTS ISSUE WKIT OF MANDAMUS. [§ 21 G. jurisdiction on it; consequently that court cannot ordina- rily issue an original writ of mandamus} Such writs when issued must be in aid of its appellate jurisdiction. Where a circuit court dismisses an appeal from the district court, erroneously supposing it has no jurisdiction, a mandamus will go to the circuit court to hear and decide the case, provided the amount involved will permit an appeal to the supreme court, for every suitor has a right in a proper case to the judgment of the supreme court. 2 If, however, the suit can in no case be taken to the supreme court, because the amount involved is not sufficient for its appellate juris- diction, that court will issue no mandamus relative to it, since it will not be in aid of its appellate jurisdiction; 3 nor will it issue the writ in other cases, when it is not necessary for the exercise of its appellate jurisdiction. 4 A mandamus was asked from the federal supreme court to compel a state supreme court to revoke its order disbarring an attorney. It was held that that court could only issue that writ, ex- cept in a few cases where it had by the constitution orig- inal jurisdiction, as an exercise of its appellate jurisdiction or in aid of its appellate jurisdiction. In the case specified the writ could not be an exercise of appellate jurisdiction, because the act of 1789, and also section 688, Revised Stat- utes, only authorized the court to issue the writ to courts appointed by, or to persons holding office under the author- ity of, the United States ; nor could such issue be claimed to be in aid of any appellate jurisdiction. The application for the writ was denied. 5 This court has, however, de- cided that it can issue a mandamus to an inferior fed- eral court to restore to practice an attorney who has been improperly suspended or disbarred. 6 In this case, where iMarbury v. Madison, 1 Cranch, SBurdett, In re, 127 U. S. 771; 137 ; United States v. Black, 128 Newman, Ex parte, 81 U. S. 152. U. S. 40 ; Riggs v. Johnson Co., 6 « Hoyt, Ex parte, 13 Pet. 279. Wall. 166. 5 Green, In re, 141 U. S. 325; 12 2 Insurance Co. v. Comstock, 16 Sup. Ct. R 114. Wall. 258 ; Bradstreet, Ex parte, 7 6 Bradley, Ex parte, 7 Wall 364, Pet 634 § 217.] WHAT COUETS ISSUE WKIT OF MANDAMUS. 2G7 this matter was fully considered the court decided that an order disbarring- an attorney is not reviewable by a writ of error, it not being a judgment in the sense of the law for which that writ will lie. Yet the court granted the writ, relying on certain former decisions. Those decisions relate to signing a bill of exceptions, 1 and reinstating and trying causes improperly dismissed for supposed lack of jurisdiction; 2 to signing the record of a judgment rendered in a case by the preceding judge ; 3 to allowing an appeal and compelling the production of the transcript, 4 and to enforce a decree against which a supersedeas had been erro- neously allowed, pending an appeal on a bond, which was not sufficient in amount to authorize a supersedeas. 5 In those cases it might be held that the writ could properly issue in aid of the appellate jurisdiction of the court, but in a disbarment proceeding there is no question of appellate jurisdiction, and the court expressly says that in such cases no writ of error will lie. Though the issue of the writ in a disbarment proceeding called forth a dissenting opinion, yet the necessity for the writ in such cases will probably cause the ruling to be sustained in the future, though it be illogical. 6 The new circuit courts of appeal, lately created by act of congress, can have no greater authority to issue the writ of mandamus than the supreme court of the United States, since they are merely authorized to assume the jurisdiction of the latter court in certain cases, thereby re- lieving the latter court of much of the overwhelming busi- ness pressing on it. § 217. Issue of writs of mandamus by subordinate fed- eral courts. — The jurisdiction of the United States courts, 1 Crane, Ex parte, 5 Pet. 190. tion are : Burr, Ex parte, 9 Wheat. 2Bradstreet, Ex parte, 7 Pet. 634. 529 ; Secombe, Ex parte, 19 How. 9. 3 Life, etc. Co. v. Wilson, 8 Pet. Another court which could only 291. issue the writ of mandamus in aid 4 United States v. Gomez, 3 Wall, of its appellate jurisdiction decided 752. that it had no power to issue a writ 5 Stafford v. Union Bank, 17 How. of mandamus to restore an attor- 275. ney who had been disbarred. 6 The earlier decisions on this ques- Walls v. Palmer, 64 Ind. 493. 2GS WHAT COURTS ISSUE WRIT OF MANDAMU8. [§ 217. except the supreme court within the limits fixed by the con- stitution of the United States, is determined by act of con- gress. The federal circuit courts in the various states are not authorized to issue a mandamus in original proceedings. Congress has not yet granted them that authority, though it has the power to do so. 1 They can issue writs of man- damus only in aid of a jurisdiction already acquired. 2 On account of the absence of the power to issue an original writ of mandamus, and as not involving a jurisdiction al- ready acquired, applications therefor to the federal circuit courts have been refused : to compel the register of a fed- eral land-office to issue a certificate of the purchase of cer- tain land ; 3 to compel a district court to vacate a rule allow- ing certain amendments to the record; 4 to order state taxing officers to levy a tax to pay certain bonds ; 5 to com- pel the auditor of a state to issue a certificate in order to recover certain taxes improperly paid ; 6 and to compel a postmaster to, receive and transmit through the mails a certain publication as second and not third class matter, though the circuit court is given express jurisdiction of all cases arising under the postal laws. 7 The circuit court can issue the writ of mandamus to district courts only when necessary for the exercise of their own jurisdiction, as to compel the rendition of a judgment or decree. 8 The only court excepted from this limited jurisdiction is the circuit court of the District of Columbia, which is now the supreme court of the District of Columbia ; 9 also by act of March 3, i Kendall v. United States, 12 Pet. U.S. 187; Davenport v. Dodge 524 ; Riggs v. Johnson Co., 6 WalL (County), 105 U. S. 237 ; Bath Co. v. 166 ; American, etc. Co. v. Bell, etc. Amy, 13 Wall. 244 Co., 1 McCrary, 175 ; Mclntire v. 6 Graham v. Norton, 15 Wall. 427. Wood, 7 Cranch, 504. 7 United States v. Pearson, 32 Fed. 2 Rosenbaum v. Bauer, 120 U S. Rep. 309. 450; Davenport v. Dodge (County), * Smith v. Jackson, 1 Paine, 453. 105 U. S. 237 ; Labette Co. Com'rs v. 9 United States v. Kendall, 12 Pet United States, 112 U. S. 217. 524 ; Riggs v. Johnson Co., 6 Wall. 3 Mclutire v. Wood, 7 Cranch, 504. 166 ; Weber v. Lee Co., 6 Wall. 210 ; * Smith v. Jackson, 1 Paine. 453. United States v. Black, 128 U. S. 40. 5 Greene (County) v. Dame 1 , 102 § 218.] WHAT COURTS ISSUE WRIT OF MANDAMUS. 209 1873, the federal circuit courts are given jurisdiction by mandamus to compel the Union Pacific Railroad Company to operate its road as required by law. 1 § 218. Mandamus by federal courts to levy a tax to pay their judgments.— When a judgment has been obtained in a federal circuit court against a municipality, a mandamus may be issued by such court to compel the municipal au- thorities to levy and collect a tax to pay such judgment. The issue of a mandamus in such case is simply a mode of executing the judgment, and not an original proceeding. 2 It is a proceeding ancillary to the judgment, and a substi- tute for the ordinary process of execution, which is gen- erally not allowed to run against municipal corporations. 3 But since the writ of mandamus creates no new rights or duties, the municipal officers can only be required to per- form such duties as the state laws impose on them. 4 If they return that they have already levied all the tax the law allows them to do, such return is a sufficient answer to the writ. 5 Any limitation on the power of the municipal offi- cers to levy a tax should be urged in the suit on the bonds before a judgment thereon is obtained, and not in the pro- ceedings to compel the levy of a tax to pay the judgment. 6 Where, however, the relator must go behind his judgment to show the remedy pertaining to the bonds relative to the power to tax for their payment, the court cannot decline to take cognizance of the fact that the bonds are utterly void, and that no such remedy exists for their payment. 7 The 1 United States v. Union Pacific the municipality, but it may issue R. R, 2 Dill. 527. against the officers whose duty it is 2 Memphis (Merchants) v. Mem- to levy the tax. Labette County phis (City), 9 Baxt 76; Greene (Com'rs) v. United States, 112 U. S. (County) v. Daniel, 102 U. S. 187 ; 217. See § 237. Davenport v. Dodge (County), 105 * Graham v. Parham, 32 Ark. 676. U. S. 237. 5 Supervisors v. United States. 18 3 Riggs v. Johnson County, 6 Wall. Wall. 71. 166 ; Weber v. Lee County, 6 Wall. 6 United States v. New Orleans, 98 210 ; Walkley v. Muscatine (City), 6 U. S. 381. Wall. 481 ; United States v. Oswego i Brownsville v. Loague, 129 U. S. (Town;, 28 Fed. Rep. 55. The man- 493. damus is not required to be against 270 WHAT COURTS ISSUE WEIT OF MANDAMUS. [§ 218. court must use the agencies established by law for the im- position and collection of such taxes, and therefore cannot appoint its marshal to do so, unless the law authorizes such action. 1 Jurisdiction of a court is not exhausted by the ob- taining of a judgment, but continues till the judgment is satisfied, while the federal courts are supreme in their sphere ; consequently any attempts in the state courts to prevent the collection of a tax ordered by a federal court to pay a judgment obtained therein, as by enjoining the officers from levying the tax, 2 or by reversing on certiorari the order of the proper authority levying the tax, 3 will be disregarded, and the proper officers will be compelled to levy and collect the tax. 1 Rees v. Watertown (City), 19 (Sup'rs), 2 Biss. 77 ; Mayor v. Lord, Wall. 107 ; Barkley v. Levee Com- 9 WalL 409 ; Riggs v. Johnson Co., missioners, 93 U. S. 258. These de- 6 Wall. 166 ; Weber v. Lee Co., 6 cisions overrule Welch v. St Gene- Wall. 210. vieve, 1 Dill. 130, and Lansing v. » United States v. Silverman, 4 City Treasurer, 1 Dill. 523. Dill. 224 2 United States v. Lee County CHAPTER 16. RELATIONS BETWEEN FEDERAL AND STATE COURTS AND OFFICERS, RELATIVE TO THE USE OF THE WRIT OF MAN- DAMUS. § 219. Federal courts can issue a mandamus to all state officers, except judicial officers, but state courts cannot to federal officers. 220. Mandamus in connection with the transfer of causes from the state to the federal courts. § 219. Federal courts can issue a mandamus to all state officers, except judicial officers, but state courts cannot to federal officers.— Owing to the peculiar rela- tions between the United States government and the states, questions have often arisen concerning the right of the federal courts to issue the writ of mandamus to state courts and state officers, and of state courts to issue the writ to federal courts and federal officers. The laws of the United States are the supreme law of the land, and the states have no control over the federal officers, who can only be con- trolled by the power that created them ; consequently a state court cannot issue a mandamus to a federal officer. 1 Nor can the states restrain either the process or the pro- ceedings of the national courts. 2 The United States courts are invested with authority to decide causes in the same manner as the state courts are, and involving the rights and remedies of parties under state laws, and are allowed to use the same remedies as the state courts. They can therefore issue the writ of mandamus to state officers, so far as the federal congress has given them authority. They can issue the writ of mandamus to all state officers except 1 McClung v. Silliman, 6 Wheat. 2 Riggs v. Johnson Co., 6 Wall 598;Laddv. Tudor, 3 W. &M. 325; 166; United States v. Lee Co. Kendall v. United States, 12 Pet. (Sup'rs), 2 Biss. 77. 524 272 FEDEKAL AND STATE COURTS. [§ 220. judicial officers. 1 The United States, owing to the complete independence of the states, can impose on a state officer, as such, no duty whatever and compel him to perform it. 2 The state courts, being courts of general jurisdiction, may by mandamus require state courts or officers to discharge any duty whatever incumbent on them. They have required local officers to levy taxes to pay judgments obtained in the fed- eral courts 3 to pay to the judgment-creditor money collected on a tax levied to pay his judgment, though such judgment was obtained in a federal court, 4 and to erase certain mort- gages then on file in the recorder's office, in accordance with an order of a national district court, sitting in bank- ruptcy. 5 A mandamus will not lie to a state judge to issue a subpoena requiring parties to appear and testify before the register and receiver of a federal land office. It would be an intrusion. 6 § 220. Mandamus in connection with the transfer of causes from the state to the federal courts.— Congress has provided by its legislation that certain suits filed in the state courts may under certain circumstances be transferred to the federal courts, and that if such suits be wrongfully transferred to the federal courts, those courts shall remand them to the state courts for trial. In case either court shall fail in its duty, the question arises whether such duty is ministerial and subject to be enforced by the writ of man- damus. It is generally held that such duties are partly judicial, and that an appellate state court will not issue a mandamus to compel an inferior state court to transfer a cause to a federal court. 7 The proper remedy is to appeal iRiggs v. Johnson Co., 6 Wall. ' State v. Curler, 4 Nev. 445 ; Peo- 166. pie v. Jackson Cir. Court (Judge), 2 Kentucky v. Denison, 65 U. S. 21 Mich. 577; Campbell v. Walleu, 66. Mart. & Yerg. 266; Francisco v. 3 State v. Beloit, 20 Wis. 79. Manhattan L Co., 36 Cal. 283 ; Hough 4 Brown v. Crego, 32 Iowa, 498. v. Western T. Co., 1 Biss. 425 ; 5 Conrad v. Prieur, 5 Rob. 49; Orosco v. Gagliardo, 22 CaL 83; Diggs v. Prieur, 11 Rob. 54; Ben- Cromie, In re, 2 Biss. 160; Gordon jamin v. Prieur, 8 Rob. 193. v. Longest, 16 Pet. 97. Contra, 'Boom v. De Haven, 72 CaL 280. Brown v. Crippen, 4 Hen. & M. § 220.] FEDERAL AND STATE COURTS. 273 from the final judgment to the state supreme court, and thence take a writ of error, if necessary, to the federal su- preme court. 1 To the United States circuit courts has not been given the power to issue a mandamus to compel such trans- fer. 2 When a transfer has been granted to the federal court. a mandamus to the state court to proceed and try the case will be refused, because in making such transfer the court acted in a judicial capacity. 3 It has, however, been held that an appeal may be taken from the order transferring the case, and that a mandamus may issue to compel the allow- ance of such appeal. 4 An original mandamus proceeding cannot be transferred from a state to a federal court. It was held by a divided court that the circuit court was lim- ited by statute to the issue of writs of mandamus in aid of a jurisdiction already acquired, and that the removal acts did not extend to mandamus proceedings, which were not civil actions in the sense in which those words were used in that statute. 5 When a transfer to the federal court has been refused, but the defendant has filed the papers in the federal court, a mandamus will issue to compel the state court, upon its refusal, to proceed with the case, though the answer shows that a nonsuit was entered in the federal court against the plaintiff, and an injunction issued against his prosecuting a petition for a mandamus. Courts of last resort cannot be deprived of their power, to control the in- ferior state courts in the discharge of their duties, by the federal courts by injunction or other process against liti- 173 ; State v. Fairfield C. Pleas. Cal. 283 ; State v. Combination, eta 15 Ohio St. 377. The last court Co., 4 Nev. 445. holds that a mandamus to transfer 2 Hough v. Western T. Co., 1 Biss, the cause, after the rendition of a 425 ; Cromie, In re, 2 Biss. 1G0. judgment, is not proper, but that Contra, Spraggins v. Humphries a writ of error is then appropriate. Co. Court, Cooke, 160. Shelby v. Hoffman, 7 Ohio St. 450. 3 Francisco v. Manhattan I. Co., i Hough v. Western T. Co., 1 Biss. 36 Cal. 283. 425 ; Cromie, In re, 2 Biss. 160 ; * State v. Judge Thirteenth Dist. Gordon v. Longest, 16 Pet 97 ; 23 La An. 29. Francisco v. Manhattan I. Co., 36 » Rosenbaum v. Bauer, 120 U. S. 450. 18 274 FEDERAL AND STATE COURTS. [§ 220. gants. 1 A mandamus will not lie to compel a federal circuit court to remand a case claimed to have been erroneously transferred to it. In such case the remedy is by appeal or writ of error, if the amount involved is not too small for an appeal or writ of error. If the amount involved is too small to allow an appeal or writ of error, the judgment of the federal circuit court is final. 2 Where a federal court re- manded a case to the state court, since it was not a final judgment from which error would lie, a mandamus was al- lowed to compel the federal court to proceed with the case ; 3 but under the act of 1887 it has been decided that a man- damus will not lie in such a case, 4 the intention of the law being that the remand should in no way be disturbed. i White v. Holt, 20 W. Va. 792. 4 Pennsylvania Co., Ex parte, 137 2 Hoard, Ex parte, 105 U. S. 578. U. S. 451. 3 Railroad v. Wiswall, 23 Wall. 507. CHAPTER IT. APPLICATION TO OFFICER TO PERFORM HIS DUTY. § 221. Mandamus is never issued unless the respondent is in default in the performance of his duty. 222. A demand must be made before the writ will issue. 223. A refusal to comply must be shown before the writ will issue. 224. When personal demand is unnecessary. 225. A positive refusal to perform the duty is not always necessary — Conduct may be equivalent to a refusal. 226. A demand cannot be made before the time has expired wherein the officer is allowed to do tbe act. 227. Will a mandamus lie when the power to do the act for that year ceases with the occurrence of the default? § 221. Mandamus is never issued unless the respondent is in default in the performance of his duty.— Since the law presumes that every one will do his duty, this extraor- dinary writ will not issue till the party sought to be con- strained has failed to do his duty. It will not be issued in anticipation of such failure, but he must be in actual default. 1 It is immaterial how strong the presumption may be that the party at the proper time will refuse to perform his duty. No threats or previous determination not to perform his duty will take the place of an actual default. 2 When a judge, in continuing a criminal case, stated that the prisoner was not entitled to a jury and should be tried without one, the writ was refused because he was not in default, the case not having been tried. 3 In one case, to prevent delay and because the question was new, a special rule was granted iMcConihe v. State, 17 Fla. 238; Fla. 263; Condit v. Newton Co., 25 Cutting, Ex parte, 94 U. S. 14 ; State Ind. 422. v. Gracey, 1 1 Nev. 223 : State v. Ris- * State v. Jefferson Co. (Com'rs), 17 ing, 15 Nev. 164; Public Schools Fla. 707; State v. Carney, 3 Kans. 88; (Com'rs) v. County Com'rs, 20 McL People v. Dowling, 55 Barb. 197. 449; Lake Co. (Com'rs) v. State, 24 3 state v. Rising, 15 Nev. 164. 276 APPLICATION TO OFFICER. [§§ 222, 223. that, in case the judges below should refuse to grant the judgment asked, then at the next term of court they should show cause why a mandamus should not issue to them to proceed to judgment. The court admitted that, strictly speaking, the relators were not entitled to the rule till after a default on the part of the respondents in the discharge of their duties. 1 § 222. A demand must be made before the writ will j SSU e. — A demand must be made on the proper officer to perform the duty desired before a writ of mandamus will be issued to compel him to discharge such duty. 2 It would be an abuse of justice to convict one of non-feasance or misdemeanor in neglecting his official duty, when he has not refused to do what may be required, and to mulct him in costs when he is not in default. 3 This writ only issues as a matter of necessity and when there is no other means of obtaining the discharge of the duty incumbent on the offi- cer. Consequently this writ will not be issued to compel an officer to do an act which he has not been asked to do. 4 The demand should be for the specific thing which ought to be done, untrammeled by any condition which may make the refusal qualified instead of absolute. 5 § 223. A refusal to comply must be shown before the writ will issue. — As a corollary of the statement in the prior section that a demand must first be made, it should be added that a refusal to comply with the demand must also be shown.'' A mandamus to make a county subscribe i Fish v. Weatherwax, 2 John. Cas. 3 State v. Gibbs, 13 Fla. 55. 215. i People v. Hyde Park, 117 111. 2 State v. Davis, 17 Minn. 429; 462; Le Roux v. Judge, 45 Mich. State v. Schaack, 28 Minn. 358; 416. Kemerer v. State, 7 Neb. 130; Mon- 5 Macoupin Co. Court v. People, roe Co. v. Lee Co., 36 Ark. 378; 58 111. 191. Com. v. Pittsburgh, 34 Pa. St. 496 ; 6 Com. v. Pittsburgh, 34 Pa. St. Talcott v. Harbor Com'rs, 53 Cal. 496; United States v. Boutwell, 17 199; United States v. Elizabeth Wall. 607 ; State v. Governor, 25 N. (City), 42 Fed. Rep. 45 ; Hardee v. J. L. 331 ; Lewis v. Henley, 2 Ind. Gibbs, 50 Miss. 802 ; Q. v. Amber- 332 ; Bryson v. Spaulding, 20 Kans. gate, eto. R R, 17 Ad. & K (N. S.) 427. 362. § 224:.] APPLICATION TO OFFICER. 277 for stock of a railroad company, as provided by law, was refused for failure of the company to produce its subscrip- tion books and ask the county to subscribe. 1 Nothing short of an absolute refusal of a judge to sign a bill of excep- tions will authorize the issuance of a mandamus to compel him to sign it. 2 Where it is not clear that there has been a refusal, the writ will be denied. A corporator requested the privilege of inspecting the corporate books. The man- aging committee asked time to consider the request. This was not considered to be a sufficient refusal to warrant a mandamus^ 6 A county judge was asked to sign and seal a case for appeal. He made a suggestion on the subject and the applicant went off. This was no absolute refusal and did not justify a mandamus. The applicant should have declined the suggestion and insisted that he wanted the case, as there stated, signed and sealed. 4 § 224. When personal demand is unnecessary.— W hen it is said that a demand to do the act and a refusal thereof must exist prior to an application for a mandamus to com- pel the performance of the act desired, it must not be con- sidered that such demand must in all cases be personal, or that such refusal must always be of the same nature. When the duty sought to be enforced is of a private nature, affect- ing only the right of the relator, a personal demand is nec- essary; 5 and it is also necessary, if the duty sought to be enforced is of such a character that it could not be ex- pected to be performed till demanded. 6 Decisions, that there must be an express and distinct demand or request to perform, 7 must be confined to such cases. Where, how- ever, the duty is of a purely public nature, wherein no in- lOroville, etc. R. R v. Plumas (Town) (III.. May 11, 1891), 27 N. E. Co., 37 Cal. 354. Rep. 757 ; Ingerman v. State (Ind, * State v. Redd, 68 Mo. 106. May 1, 1891), 27 N. E. Rep. 499. 3 King v. Wilts, etc. Navigation e Humboldt Co. v. Churchill Co. (Prop'rs), 3 Ad. & E. 477. (< Jom'rs). 6 Nev. 30. * Irving v. Askew, 20 L. T. R. (X. T United States v. Boutvvell, 17 g_) 584. Will, (id?: Price v. Riverside, etc. 5 People v. Education Board, 127 Co., 56 Cal. 431. 111. 613; People v. Mount Morris •278 APPLICATION TO OFFICER. [§ 224. dividual right or duty is concerned, and where there is no one person upon whom either a right or duty devolves to make a demand of performance, an express demand or re- fusal is not necessary. The law does not require a useless thing. It points out the whole duty with time and place. It stands in place of a demand, and neglect or omission to perform in place of a refusal. 1 Since in such a case it is not necessary to make a demand, an allegation in the alterna- tive mandamus that the demand was made and a denial thereof in the return do not raise an issue. 2 A demand was considered unnecessary : when the school board had excluded colored children from certain schools ; 3 when the board of councilmen failed to order an election to fill a vacancy in their number; 4 when an execution against a municipal cor- poration was retained nulla bona and the municipality failed to levy a tax to pay it ; 5 when the board of trustees of a corporation failed to call a meeting for the annual election of trustees; 6 when the police jury of a county failed for ma-^y months, after the site for a court-house had been prop- erly selected, to levy a tax as required by law to pay for its construction; 7 when the city council failed to levy a tax as required by law to pay the interest and principal of the bond upon which the relator had obtained judgment. 8 i State v. Bailey, 7 Iowa, 390 ; Rep. 7 ; State v. Racine (City Coun- People v. Education Board, 127 111. cil), 22 Wis. 258 ; Columbia Co. 613 ; State v. Rahway, 33 N. J. L. (Com'rs) v. King, 13 Fla. 451. 1 10 ; Com. v. Allegheny Co. (Com'rs), 2 Lyman v. Martin, 2 Utah, 136. 37 Pa. St 237; State v. Marshall Co. 3p eo ple v. Education Board, 127 (Judge), 7 Iowa, 186 ; Chumasero v. 111. 613. Potts, 2 Mont. 242; State v. Weld, * State v. Rahway, 33 N. J. L. 110. 39 Minn. 426 ; Fisher v. Charleston 5 State v. Slaveus, 75 Mo. 508 ; (City), 17 W. Va. 595; Fisher v. Fisher v. Charleston (City), 17 W.Va. Charleston (Mayor), 17 W. Va. G28; 595; Fisher v. Charleston (Mayor), Humboldt Co. v. Churchill Co. 17 W. Va. 628. (Com'rs), 6 Nev. 30; Lee Co. v. « State v. Wright, 10 Nev. 167. State, 36 Ark. 276 ; People v. Mount 7 Watts v. Carroll (Police Jury), 1 1 Morris (Town) (III., May 11, 1891), La. An. 141. 27 N. E. Rep. 757 ; State v. Wright, B State v. Racine (Com. Council), U) Nev. 167; Smith v. Lawrence 22 Wis. 258. (S. Dak., June 19, 1891), 49 N. W. 8 225.] APPLICATION TO OFFICER. 279 Where, however, the proper mode of performance of the duty is doubtful, a demand specifying the proper mode will be required before the mandamus will be granted. When a mandamus is asked by a private party to compel a public officer to keep his books in a certain way in order to con- form to the statute, he must have requested the officer to do so before he asks for a mandamus, because there are often differences of opinion as to the construction of a stat- ute, and the officer should have an opportunity to act on the relator's construction before being involved in litiga- tion. 1 § 225. A positive refusal to perform the duty is not always necessary — Conduct may be equivalent to a re- fusal.— A positive refusal is also not necessary in all cases before a writ of mandamus will lie to compel the perform- ance of a duty. The law never demands a vain thing, and when the conduct and action of the officer is equivalent to a refusal to perform the duty desired, it is not necessary to go through the useless formality of demanding its per- formance. Anything showing that the defendant does not intend to perform the duty is sufficient to warrant the issue of a mandamus? Proof of a refusal by a municipal- ity to levy a tax to pay the interest on its bonds was con- sidered to be unnecessary, when it had countermanded an assessment therefor, and in its return to the alternative writ justified such action ; 3 it was also considered to be unnec- essary when it failed to make any provision for suoh pay- ment. 4 A demand or refusal to receive the relators as members of the board was not necessary to obtain a writ of mandamus to receive them as such, after the passage by the board of a resolution declaring the election to be void and allowing the sitting members to retain their seats till i State v. Eberhardt, 14 Neb. 201. * State v. Clinton Co. (Com'rs), 6 2 Com. v. Pittsburgh, 34 Pa. St. Ohio St 280 ; Com. v. Pittsburgh 496. (Select Coun.), 84 Pa. St. 496; 3 Com. v. Allegheny (Com'rs), 37 Columbia Co. (Com'rs) v, King, 13 Pa, St 277. Fla, 451, \ 280 APPLICATION TO OFFICER. [§ 225. the courts passed on the matter. 1 A failure to perform a duty imposed on an officer on the proper day, without even the pretense of a reason therefor, is equivalent to a refusal, and a mandamus may be properly awarded to compel its performance. 2 A failure for twelve years to perform the peremptory duty of providing a house of correction dis- tinct from the common gaol authorizes a mandamus to provide the proper building. 3 When a board of supervisors allow their session to expire without acting on a claim pre- sented to them for allowance, a mandamus will lie to com- pel them to audit it, since such action relative to mandamus proceedings must be regarded as a rejection of the claim. 1 Where a vestry was called upon to lay a tax rate for the support of churches, but adjourned from time to time with- out acting in the matter, evidently with a view to avoid laying the rate, such action was considered for mandamus proceedings to be equivalent to a refusal. 5 Where a judg- ment had been recovered against a town, and its record showed clearly an intention not to levy a tax to pay it, a demand to levy a tax for that purpose was considered un- necessary. 6 Where the directors of a corporation, whose charter required an annual election of its directors, post- poned the election for six months, it was considered that such action was an open and public declaration of their de- termination not to perform a plain duty, and it was unnec- essary, before applying for a mandamus, to make a demand on them to appoint judges and tellers for such election. 7 Where a city council was by law required to levy a tax annually sufficient to pay off the interest on certain bonds issued by the city, a failure of the city council to make a levy, though requested to do so, was equivalent to a refusal. 8 1 State v. Hudson Co. (Freehold- 5 Q. v. St Margaret's Vestry, 8 A. pis), 35 N. J. L. 269. & E. 889. 2 Knox Co. (Board Convrs) v. As- 6 Palmer v. Stacy, 44 Iowa, 340. pinwall, 24 How. 376. ^ Mottu v. Primrose, 23 Md. 482. 3 Com. v.Hampden (Just), 2 Pick. SMaddox v. Graham, 2 Mete. 414. (Ky.)56. 4 People v. Richmond Co. (Sup'rs), 20 N. Y. 252. I 225.] APPLICATION TO OFFICER. 281 So the refusal of a board of supervisors by resolution to levy a tax to pay a demand allowed by them, till the owner thereof had complied with certain conditions, which they illegally imposed, was equivalent to a refusal to levy the tax. 1 Where a series of judgments has been rendered against a town, and for a number of years the town has taken no action to provide for their payment, a mandamus will lie to compel the levy of a tax to pay such a judgment, thoueh no formal demand to do so has been made. Such town has shown by its conduct that it does not intend to pay, and it would be a work of supererogation to require a demand. 2 Where, by law, on request of a contractor, a pub- lic board was required to agree with him on arbitrators to pass on his claims, a failure by such board to act on the mat- ter, though the contractor had attended their meetings and requested them to act, was considered to be equivalent to a refusal to act. 3 A rescission of the resolution, on which a dis- patch was founded, was considered for the purposes of a mandamus to be equivalent to a refusal to send the dis- patch. 4 A demand on a city to pay a judgment against it was held to justify an application to compel it to levy a tax to make such payment upon its failure to pay, and that a demand to levy a tax was unnecessary. 5 Where a refusal is dispensed with, it must clearly appear that the respond- ent withholds compliance and distinctly determines not to do what is required, 8 or the mandamus will be refused. A demand was made May 21th on one member of a township committee to borrow money to pay a judgment against the township. A mandam,us was applied for June 1st. The interval was considered to be too brief to support the con- clusion that the committee had refused to meet and act. 7 1 People v.Livingston Co. (Sup'rs), 5 Cairo (City) v. Everett, 107 I1L 68 N. Y. 114. 75. 2 United States v. Brooklyn 6 King v. Brecknock Canal, 3 A. (Town), 10 Biss. 466. & E. 217. 3 State v. Jersey City (Board Fi- " State v. Union Township, 43 N. nance), 38 N. J. L. 259. J. L, 531. 4 King v. East India Co., 4 B. & Ad. 530. 282 APPLICATION TO OFFICER. [§§ 226, 227. It seems almost unnecessary to add that when a demand is not necessary a refusal is also not necessary. 1 § 226. A demand cannot be made before the time has expired wherein the officer is allowed to do the act.— When by law an officer is allowed till a certain time to dis- charge a certain duty, no demand can be made on him till that period has passed. When it is the duty of a common council to provide in the annual appropriation bill for the payment of judgments against the city, the proper time to make a demand on them is after their failure to do so. 2 Where a statute requires a company after the work is com- pleted, on requirement of an interested party, to perform those things which it has neglected, a demand thereof must be made after the completion of the work. 3 When the law, under which a debt is contracted by a county, prescribes that the tax for its payment shall be levied and collected at the same time and manner as the regular state and county taxes, a demand to make a levy of a tax to pay such debt is premature if made before such time. 4 § 227. Will a mandamus lie, when the power to do the act for that year closes with the occurrence of the de- fault? — It sometimes happens that the officer is allowed to delay the performance of a duty till a certain date, and after that period it becomes impossible, owing to the nature of the duty or the provisions of law, for him to perform such duty. In such case it becomes a question whether a mandamus can issue at all, because prior to such date there has been no default, and subsequent thereto it is too late to comply with the law. A comptroller-general was required each year, on or before the 15th day of No- vember, to notify the county auditors what per centum was to be levied on property as a tax to pay the interest on the state bonds then due, in arrear, and to become due during the coming year. The comptroller gave such notice, 1 Ante, % 224. 3 q. v . Bristol, etc. R R, 4 Ad. & 2 Cairo (City) v. Campbell, 116 111. E. (N. S.) 162. 305. 4 State v. Kenuington, 10 Rich. (N. S.) 299. § 227.] APPLICATION TO OFFICER. 283 omitting from his calculation certain state bonds. A man- damus was applied for, after November 15th, to compel him to give a notice which would include such bonds. It was objected that the application was premature relative to the next year, and too late relative to the year just passed, in- asmuch as the county auditors and the other county audi- tors had acted on such notices, and the law did not authorize any subsequent notice. The court considered such conclu- sion to be a parody on justice. It considered that, giving the statute and the rules of law a reasonable construction, a refusal by the respondent to perform this duty, even be- fore November 15th, must be considered as equivalent to a total want of performance for all remedial purposes, inas- much as the 15th day of November was fixed, not as the day proper for the doing of the act, but as a period to mark the default of the respondent should it remain unperformed, and therefore, as he might perform on a previous day, re- fusal on such day to perform altogether is evidence of a default as affecting the right of a party to a civil remedy. The court stated that, if the respondent in his return had denied the fact of refusal, or had alleged his willingness to perform, such allegation, if undisputed, would have ended the matter. 1 A city levied only a part of the tax required in order to pay certain obligations, and, when a mandamus was applied for to compel the levying of the necessary tax, it was objected that under the law the period wherein a tax could be levied had passed for that year. The court issued the alternative writ, stating that, in case a peremp- tory writ was eventually ordered, it would extend the time for making a return thereto, so as to cover the period wherein under the law the appropriation and the raising of the tax could be obtained. 2 The fact that a city had re- fused for one year to levy a tax to pay the interest on cer- tain of its bonds, and the assertion in its return that it did not intend to levy the tax, was held to establish such a case 1 Morton v. Compt. Gen., 4 Rich. 2 State v. Jersey City (Bd. Fin.) (N. S.) 430. (N. J., Nov. 6, 1890), 20 Atl. Rep. 755. 284 APPLICATION TO OFFICER. [§ 227. of intended and certain default as justified the issuance of a writ of mandamus to compel the levy of such tax in ad- vance of the time when the duty should in the current year be performed. 1 So where a municipal council passed an ordinance, that after a specified date no tolls should be collected on a certain ferry, which was contrary to the pro- visions of the law under which the ferry was purchased, a mandamus was issued before the specified date, compelling the city to continue to collect tolls. 2 The court cites sev- eral English decisions, wherein the writ was issued prior to actual default. 3 i State v. New Orleans (City), 34 E. & B. 228 ; Q. v. Great Western R. La. An. 477. R, 1 E. & B. 253. These decisions 2 Attorney -General v. Boston, 123 are reversed upon appeal but on Mass. 460. another point The proposition is 3 Q. v. York, etc. R R., 1 E. & B. also inferentially sustained in Q. v. 178; Q. v. Lancashire, etc. R. R., 1 Eastern, etc. R. R., 10 A. & E. 531. CHAPTER 18. PARTIES TO MANDAMUS PROCEEDINGS. § 228. Parties in interest must be the relators in mandamus proceedings to protect private rights. 229. Can a private party be the relator to enforce a public right? 230. Subject continued. 231. Public officers, but not their agents, can apply for this writ as re- lators even against their co-officers. 232. Who may be joined as relators. 233. Does the writ abate by the death of the relator or the expiration of his term of office? 234. The writ must issue against him whose duty it is to do the act desired. 234a. All persons charged with the performance of the duty must be joined as respondents, but none others. 235. All persons concerned in the separate but co-operative steps in the attainment of the result sought may be joined as respond- ents in one mandamus. 236. Contrary rulings on the last proposition. 237. How the mandamus should be directed when a corporation is the respondent. 238. Does the writ abate upon the resignation, or expiration of the term of office, of the respondent? 239. When the resignation alone does not vacate the office, such res- ignation may be disregarded till the office is legally vacated. 240. Where a corporation or a select body is the respondent, no change in its membership will affect the proceedings. 241. Mandamus not lie to one having no duty in the premises or who has gone out of office. 242. Can third parties be subsequently brought in as relators or re- spondents? 242a. Subject continued. 243. Third persons interested should be allowed to intervene or should be made parties. 244. Third parties not allowed to intervene to litigate matters not in- volved in the mandamus proceedings. § 228. Parties in interest mnstbe the relators in man- damns proceedings to protect private rights. — When n mandamus is applied for to enforce a private right the 286 PARTIES TO MANDAMUS PROCEEDINGS. [§ 228. party interested must be the relator, 1 or, where it is ad- judged that under their statutes the writ no longer runs in the name of the state to protect private interests, contrary to the long-established usage, 2 such party must be the plaintiff. 3 To maintain his mandamus in such case the re- lator or plaintiff must show some personal or special inter- est in the matter, 4 and if the petition should fail to show such interest, it should be denied. 5 The proper party to apply for a mandamus to compel an officer to pay a war- rant drawn on him is the holder of it, and not the party who drew it. 6 A county trustee is the proper relator in a mandamus to compel the state comptroller to divide the school funds and to pay them to the county trustees, and a petition filed by a county trustee to the use of a school- teacher is not maintainable. 7 When the board of supervis- ors of a county, acting as a board of equalization, reduce the assessed value of realty in a town, and the county au- ditor refuses to make the alteration, tax-payers who have not paid the tax may by mandamus compel the county au- ditor to make the alteration. 8 A father, however, since the duty devolves on him of sending his children to school, may be the relator in mandamus proceedings to assert their rights in the public schools; as to obtain admission for them to those schools, 9 or to be allowed to use certain books as text- books in those schools. 10 All proceedings, however, by county i State v. Weld, 39 Minn. 426; State v. Kearney (City), 25 Neb. Ottawa (City) v. People, 48 III. 233; 262; Board Liquid, v. McComb, 92 Pike Co. (Com'rs) v. People, 11 111. U. S. 531 ; State v. Crete (Mayor) 202. (Neb., July 2, 1891), 49 N. W. Rep. 2 Chance v. Temple, 1 Iowa, 179 ; 272. Morris v. Womble, 30 La. An. 1312. & State v. Davis Co. (Judge), 2 » State v. Jefferson Co. (Com'rs), 1 1 Iowa, 280. Kans. 66 ; State v. Marston, 6 Kans. 6 State v. Haben, 22 Wis. 660. 524 ; People v. Pacheco, 29 Cal. 210 ; ? Yost v. Gaines, 78 Tenn. 576. Myers v. State, 61 Miss. 138; Smith 8 Ridley v. Doughty, 77 Iowa, 226. v. Lawrence (S. Dale, June 19, 1891), » People v. Detroit (Bd. Educ), 18 49 N. W. Rep. 7 ; Stoddard v. Ben- Mich. 400. ton, 6 Colo. 508. 10 State v. Columbus (Bd. Educ), 4 Wise v. Bigger 79 Va. 269 ; 35 Ohio St. 368. § 220.] PARTIES TO MANDAMUS PROCEEDINGS. 2S7 commissioners and the voters, in taking steps to raise money to take stock in an incorporated company, are between them, and the company has no control over the matter till the stock is taken. Prior thereto a petitioner or tax-payer can have a mandamus to compel the payment of the money, but the company cannot. 1 § 229. Can a private party be the relator to enforce a public right? — As to whether a private party may be a relator, when the duty whose performance is sought is of a public nature, is a question which has called forth many conflicting- decisions. Some courts have decided that in such cases a private party cannot be the relator, unless he has some private or particular interest to be subserved, or some particular right to be pursued or protected, independ- ent of that which he holds with the public at large. 2 In the absence of such special interest, they hold that the public officers must apply for the writ, 3 who of course can only apply to protect some public right or to secure some public interest. 4 It has been held, however, that the rule refusing the privilege to private parties of obtaining a mandamus to enforce public duties is one of discretion and not of law, and the court will ignore it when the attorney-general re- fuses to appear to complain of alleged omission of duty by public officers. 5 Parties who owned houses on certain streets 1 Crawford Co. (Com'rs) v. Louis- Weeks v. Smith, 81 Me. 538; State ville, etc. Railroad, 39 Ind. 192. v. Hollinshead, 47 N. J. L. 439 ; Ter- 2 Sanger v. Kennebec Co. (Com'rs). ritory v. Cole, 3 Dak. 301. 25 Me. 291 ; Lyon v. Rice, 41 Conn. 3 Bobbett v. State, 10 Kan. 9 ; Ad- 245 ; Atwood v. Partree, 56 Conn, kins v. Doolen, 23 Kan. 659 ; Sanger 80 ; Peck v. Booth, 42 Conn. 271 ; v. Kennebec Co. (Com'rs), 25 Me. Linden v. Alameda Co. (Sup'rs), 45 291 ; Territory v. Cole, 3 Dak. 301 ; Cal. 6 ; Adkins v. Doolen, 23 Kan. Mitchell v. Boardman, 79 Me. 469 ; 659; Bobbett v. State, 10 Kan. 9; Weeks v. Smith, 81 Me. 538. Moon v. Cort, 43 Iowa, 503 ; Smith 4 People v. Rome, etc. R. R, 103 v. Saginaw (Mayor), 81 Mich. 123; N. Y. 95; Attorney-General v. Al- People v. Inspectors State Prison, 4 bion, etc. Inst., 52 Wis. 469. Mich. 187 ; Heffn'er v. Com., 28 Pa, 5 People v. State Auditors (Board), St. 108 ; Com. v. Mitchell. 82 Pa. St. 42 Mich. 422 ; People v. University 343 ; State v. Grubb, 85 Ind. 213 ; (Regents), 4 Mich. 98. Mitchell v. Boardman, 79 Me. 469 ; 288 PARTIES TO MANDAMUS PROCEEDINGS [§ 230. have been allowed writs of mandamus to compel cities and towns to open and repair them, as being specially and di- rectly interested in such action. 1 An elector was refused a mandamus to compel the county supervisors to order an election for the removal of the county seat. 2 A private person was not allowed to use the writ to compel public officers to remove fences and to open an old highway.-' A private party was refused a mandamus to compel the open- ing of an alley, though it would have passed through two of his lots and would have enhanced the value of his prop- erty. It was considered that the only right he would have in the alley was a right of passage, which he would hold in common with the public. 4 A bidder for municipal work was denied a mandamus to compel the officers to award him the contract, though he was the lowest bidder. It was stated that the injury sustained by the rejection of the lowest bid fell on the public, and not on the relator, whose profits were speculative, of which the law would take no account. 5 Where a mandamus was brought, at the relation of a private party, to compel the county board of super- visors to build a bridge, the cow:t sustained it, because the attorney-general signed the relator's brief and impliedly authorized the use of the name of the state." § 230. Subject continued.- The great weight of Ameri- can authority, however, is to the elfect that, where the re- lief sought is a public matter, or a matter of public right, the people at large are the real party, and any citizen is entitled to a writ of mandamus to enforce the performance of such public duty. 7 Among such duties have been in- 1 Haminar v. Covington (City), 3 36 Cal. 595; Stoddard v. Benton, 6 Mete. (Ky.) 404; Catlettsburg Colo. 508. (Trustees) v. Kinner, 13 Bush, 334. 7 Chumasero v. Potts. 2 Mont. 242; - Linden v. Alameda Co. (Sup'rs), State v. Gracey, 11 Nev. 223; State 45 Cal. 6. v. Francis, 95 Mo. 44 : State v. Van 3 Atwood v. Partree, 56 Conn. 80. Duyn, 24 Neb. 586; State v. Brown. 4 I leffner v. Com., 28 Pa. St. 108. 38 Ohio St 344 ; State v. Ware, 13 s Com. v. Mitchell, 82 Pa. St 343. Oreg. 380; Sansom v. Mercer, 68 6 People v. San Francisco (Sup'rs), Tex. 488 ; Wise v. Bigger, 79 Va. $ 230.] PARTIES TO MANDAMUS PROCEEDINGS. 289 eluded : the calling of an election to fill public or municipal offices ; ' the restoration of a highway to its former condi- tion by a railroad company as required by its charter; 2 the running of its trains by a railroad company across a river to its legal terminus; 3 the opening 4 and working 5 of a public road ; the direction by a city council to the city so- licitor to proceed to sell according to law the lands of de- linquents to enforce the payment of taxes ; 6 the assessment by the assessor of property subject to assessment; 7 the selection of two newspapers of opposite politics wherein to publish the session acts ; 8 the maintenance of a certain bridge as a public highway ; ° the maintaining, opening and closing of bridges over a certain river ; 10 the widening of a street in a city ; u the issuance by a county treasurer of his warrant for the collection of a tax ; 12 the making out of the list of the stock of a railroad company for taxation by the auditor of the county on the failure of the company to do so; 13 and the issuance by a county auditor of his duplicate for the tax on the real estate in the county, without adding 269 ; People v. Board Educ, 127 * McConihe v. State, 17 Fla, 238 ; I1L613; Ottawa (City) v. People, 48 State v. Brown, 38 Ohio St 344; 111. 233 ; State v. Weld, 39 Minn. State v. Ware, 13 Oreg. 381 ; San- 426 ; Attorney-General v. Boston, som v. Mercer, 68 Tex. 488. 123 Mass. 460 ; State v. Marshall - State v. Hannibal, etc. R R, 86 Co. (Judge), 7 Iowa, 186 ; State v. Mo. 13. Jefferson Co. (Canv'rs), 17 Fla. 707 ; » Union Pacific R R v. Hall, 91 McConihe v. State, 17 Fla. 238; U. S. 343. Union Pacific R R v. Hall, 91 U. S. * Hall v. People, 57 111. 307. 343 ; State v. Kearney (City), 25 » People v. Collins, 19 Wend 56. Neb. 202 ; People v. Collins, 19 b State v. Camden, 39 N. J. L. 620. Wend. 56 ; Ford v. Cartersville ~> Hyatt v. Allen, 54 Cal. 353. (Mayor), 84 Ga. 213 ; Moses v. Kear- 8 People v. Sullivan Co. (Sup'rs), ney, 31 Ark. 261 ; Hancock v. Perry 56 N. Y. 249. (Dist Town), 78 Iowa, 550; Clarke 9 Pumphrey v. Baltimore (Mayor), Co. (Com'rs) v. State, 61 Ind. 75 ; 47 Md. 145. State v. Camden, 39 N. J. L. 620 ; Jttawa (City) v. People, 48 HI. Hyatt v. Allen, 54 CaL 353; People 883. v. Sullivan Co. (Sup*rs), 56 X. Y. 249 ; u People v. Brooklyn (Com. Coun.), Pumphrey v. Baltimore (Mayor), 22 Barb. 404. 47 Md. 145 ; People v. Bloomington u People v. Halsey, 37 N. Y. 344 (Mayor), 63 I1L 207. I* State v - Hamilton, 5 Ind. 310. 19 290 PARTIES TO MANDAMUS PROCEEDINGS. [§ 231. to the valuation an additional per cent, which was added by a state board of equalization, which was not duly consti- tuted. 1 The right of a private party to be the relator in a mandamus proceeding to compel the performance of a pub- lic duty does not exist, when such duty is due to the gov- ernment as such. In such cases a private party cannot interfere, but the government through its officers alone can apply for the writ. 2 A creditor of a state was refused a writ of mandamus, when its effect would have been to ex- ercise a supervisory control over the state treasurer and the auditor of state in the conduct of their offices. Such officers are liable to the state and not to its creditors, who cannot supervise the settlements made by those officers with the various tax collectors. 3 Of course, when the state as such is directly interested in the matter, it should apply through its legal officer, and a private party will not be allowed to enforce the rights of the state by this writ. 4 § 231. Public officers, but uot their agents, cau apply for this writ as relators, even against their co-officers. "When the law imposes a power or duty upon a board of officers, and to do it they require the assistance of a man- damus, they ma} r apply for it. 5 Agents or servants, however, cannot assert the rights of their principals and thereby ob- tain a mandamus in their own names. A committee of a town appointed to inspect the books of the overseers of the town cannot bring a writ of mandamus in their own names to compel such overseers to deliver to them such books for iuspection. The committee are not public officers, entitled by their office to the custody of those books, nor charged with any public duty concerning them. 6 The rule, that a party cannot sue at law a partnership, board of trustees, or 1 Hamilton v. State, 3 Incl 452. 3 state v. Dubuclet, 28 La. An. 85. 2 Union Pacific R. R. v. Hall, 91 4 State v. Carey (N. Dak., June 16, U. S. 343; State v. Weld, 39 Minn. 1891), 49 N. W. Rep. 164. 426 ; Attorney-General v, Boston, 5 Holland v. State, 23 Fla. 123. 123 Mass. 460; Chicago, etc. R R. 6 Bates v. Overseers of Poor, 14 v. Suffern, 129 111. 274. Gray, 16a § 232.] PARTIES TO MANDAMUS PROCEEDINGS. 201 other board, of which he is a member, does not apply to mandamus proceedings. 1 § 232. Who may be joined as relators. — All the parties interested may be joined as relators in a mandamus pro- ceeding, 2 but it is not necessary to join all of them. 3 If, however, other interested parties may be affected by the relief granted to the relator, the writ should be in behalf of all such interested parties, or should show that separate action can be taken on the relator's claim without injuring the other interested parties. 4 In order, however, that par- ties may be joined as relators, they must have a right common to all of them, must have a joint benefit in the performance of the act or duty required of the respondent, and must be joint sufferers, because of the non-doing. 5 A mandamus must not include more than one case, whether of the same or many individuals. Two or more distinct rights cannot be joined in one proceeding, 6 at the instance of two persons, 7 though they succeeded each other in the same office. 8 Where a court of equity had decreed one- fourth of a certain sum of rnoney to each of four petition- ers, a mandamios, brought by two of them against a state officer to compel the payment of their proportions, was denied, because the interests of the relators were separate. 9 Where several persons have been turned out of their offices, though their offices are the same, as common councilmen of a municipality, they cannot sue out a* common writ of mandamus to compel their restoration, since the wrong done to one is no wrong to the others, nor was the election of one the election of the others. Their interests are sev- eral. 10 If an alternative writ of mandamus is issued in such 1 Cooper v. Nelson, 38 Iowa, 440. ^Haskins v. Scott Co. (Sup'rs), 51 See § 235. Miss. 406. 2 Newman, Ex parte, 81 TJ. S. 152 ; <* Haskins v. Scott Co. (Sup'rs), 51 Hammar v. Covington (City), 3 Miss. 406 ; King v. Kingston (Mayor), Mete. (Ky.) 494. 8 Mod. 209. 3 Maddox v. Graham, 2 Mete. ~> Stephen's Nisi Prius, 2323. (Ky.) 56. 8 Scott, Ex parte, 8 Dowl. 328. * Lee Co. v. State, 36 Ark. 276. 9 Heckart v. Roberts, 9 Md. 41. lOAndover, Case of, 2 Salk. 433; 292 PARTIES TO MANDAMUS PROCEEDINGS. [§§ 233, 234. a case, it will be quashed if it has been returned ; if it has not been returned, it will be superseded. 1 Where, however, several persons were similarly situated and had a common interest at stake, they were allowed to join in one man- damus proceeding. They were four officers, against whom charges were preferred, in globo. They were tried at the same place and time, and without any severance, and the same testimony was adduced against one and all, and they were removed from office by a single decree. 2 § 233. Does the writ abate by the death of the relator or the expiration of his term of office? — It is held that, when a private party applies for a mandamus, the proceed- ings abate with his death, 3 but the death of a copartner among the relators does not abate the writ. 4 When, how- ever, the mandamus is prosecuted by a public officer in his official capacity for tho public benefit, the law regards the office, and not the adjunct name of the individual, and the writ will not abate at the end of his term, but shall be con- tinued by his successor. 5 § 234. The writ must issue against him whose duty it is to do the act desired. — The writ of mandamus must issue directly against him whose duty is it to do the thing the parties wish done. 6 The writ has been refused, because the respondents had not the power to do the act desired : to a parish assessor and tax collector to levy a tax; 7 to a town council to restore certain moneys in the hands of the town treasurer to the school account, which by their order he had deducted from that account ; 8 and to a county to com- 12 Mod. 332; King v. Chester, 5 Head, 650; Hardee v. Gibbs, 50 Mod. 10 ; S. C. as Anon., 2 Salk. Miss. 802. 436. 6 Rowland, Ex parte, 104 U. S. i King v. Kingston (Mayor), 8 604 ; Fry v. Reynolds, 33 Ark. 450 ; Mod. 209. People v. Hayt, 66 N. Y. 606 ; Peo] >le 2 State v. Shakspeare (La., Dec. 1, v. Crotty (Village), 93 111. 180 ; Far- 1890), 8 S. Rep. 893. rell v. King, 41 Conn. 448 ; State v. 3 Booze v. Humbird, 27 Md. 1. Penn. R. R, 41 N. J. L. 250; State 4 People v. Essex Co. (Sup'rs), 70 v. Shreveport (City), 29 La. An. 658. N. Y. 228. 7 state v. Fournet, 30 La. An. 1103. 6 Felts v. Memphis (Mayor), 2 estate v. Union (Town Council) § 234(7.] PARTIES TO MANDAMUS PROCEEDINGS. 293 pel the return of a tax illegally collected, since the county treasurer or the supervisors were the proper parties. 1 But the "writ was considered to be properly addressed : to the custodian of the corporate books in an effort by a stock- holder to obtain an examination thereof ; 2 but the direct- ors may also be included, when such custodian is acting under their orders in refusing to allow such inspection ; 3 to the secretary of state to obtain a patent for United States land, which had been signed, sealed, countersigned and re- corded in the record book of the land department ; 4 and to the county officers to levy a tax to pay a judgment against a township. 5 § 234a. All persons charged with the performance of the duty must he joined as respondents, hut none others. The general rule is, that all persons charged with the per- formance of the duty sought must be made respondents, 6 even though some of them are willing to perform their duty, and in fact are asking for the writ to compel the dis- charge of duty by their colleagues. 7 When, however, a majority of such persons can legally perform the duty de- sired, and are willing to do so, the writ will not issue against any of them though one of them may refuse to act, since in such case the writ will be unnecessary. 8 So the writ may include any number of persons as respondents, if the duty is to be performed by all or by one or other. 9 If, however, the duties of the respondents are separate, the writ will be refused. A mandamus to make the trustees of two townships discharge their duties relative to a cer- (N. J., Nov. 8, 1889), 18 Atl. Rep. e Gaal v. Townsend, 77 Tex. 464. 571. " Lyon v. Rice, 41 Conn. 245 ; 1 Eyerly v. Jasper County, 72 State v. Jones, 1 Ired. 129 ; Knight Iowa, 149. v. Ferris, 6 Houst. 283 ; Anon., 2 2 State v. Bergenthal, 72 Wis. 314 ; Chit. 254 ; Q. v. Pickles, 3 Ad. & People v. Mott, 1 How. Pr. 247. E. (N. S.) 599. 3 People v. Throop, 12 Wend. 183. 8 White River Bank, In re, 23 Vfc * United States v. Schurz, 102 U. S. 478. 378. 9 King v. Middlesex (Archd), 3 5 Labette Co. (Com'rs) v. United A & E. 615. States, 112 U. S. 217. 294: PAETIES TO MANDAMUS PKOCEEDINGS. [§ 235. tain public road was refused, because each township acted for itself, and the duties of the respective trustees were en- tirely distinct. 1 A mandamus was asked to compel a town and a city, which had been carved out of the town, to levy a tax to pay a judgment obtained on town bonds, which had been issued prior to the existence of the city. The writ was refused as to the city, because the duties of the two boards controlling the town and city were several 2 When a party has been improperly joined as a respondent, the writ will be dismissed as to all parties, the rule being that the relator must prove his right to all he claims in the alternative writ, to which the peremptory writ is required to conform. 3 A writ of mandamus against the governor of a state and the secretary of state of the state was dismissed, because the governor was not amenable to mandamus pro- ceedings. 4 § 235. All persons concerned in the separate but co- operative steps in the attainment of the result sought may he joined as respondents in one mandamus. — One writ of mandamus may issue against all officers concerned in the separate but co-operative steps in the attainment of one result in the performance of a general duty. 5 One writ of mandamus was considered proper : to a mayor and the capital burgesses to elect a mayor and swear him into office, when it was the duty of the burgesses to elect and i State v. Chester, 10 N. J. L. 292. State v. Weir (Neb., Sept. 22, 1891), 2 State v. Beloit (Sup'rs), 20 Wis. 49 N. W. Rep. 785. 79. 4 People v. Yates, 40 111. 126. In 3 Rex v. Norwich (Mayor), Stra. another case the writ was granted 55 ; Reg. v. Hereford (Mayor), 2 Salk. as to one respondent, while the fact 70 ; King v. Smith, 2 M & S. 583 ; that the governor was a co-respond- Buller's Nisi Prius, 200. The oppo- ent was ignored. State v. Nicholls, site is held in State v. Leon (Sup'rs), 42 La. An. 209. In a later case in 66 Wis. 199, but the court assigns Illinois (People v. Sec. of State, 58 no reason for the decision. The 111. 90), the writ was granted as to writ has been held good as to the the state auditor and the state treas- respondent upon whom the duty urer, while it was refused as to the devolved to do the act desired secretary of state. State v. Mount, 21 La. An. 352; * Labette Co. (Com'rs) v. United § 235.] PARTIES TO MANDAMUS PROCEEDINGS. 295 of the mayor to swear into office ; * to a mayor and the city council to take certain land in payment of the assessments for improvements, and to pay the value of the equity therein, when the action of the city council in taking the land required the approval of the mayor ; 2 to the clerk of the county court and two justices of the peace, as canvassers of the votes, to count the votes and enter the result, and to the clerk to issue a certificate of election to the legislature ; 3 to the lord of the hundred and the steward to hold a leet- court, and appoint the proper officers ; 4 to the auditor and treasurer of state, the one to draw his warrant, and the other to pay it ; 5 and to the lord of the manor, as well as to the steward thereof, in a proceeding by mandamus to compel the admission of a party to a customary or copy- hold estate, in order that the interests of the lord might be more effectually protected. 6 In order to compel the elec- tion of a mayor of a borough, one mandamus was issued against the lord and steward of a leet to hold a leet-court, against the bailiff of the leet and his deputy to return and de- liver the panel or list of the jury into the leet-court, against the steward of the leet to swear the jury, and against the twenty-four jurors to allow themselves to be sworn, and to proceed to elect a mayor of the borough. 7 When it has not appeared that such parties have any objection to dis- charging the duties devolving upon them after the discharge of precedent duties by other officers, the courts have not re- quired that they be joined in the mandamus proceedings. 3 A township had passed an ordinance, in accordance with the law, that if a railroad was completed to a certain point by States, 112 U. S. 217 ; State v. Bai- 4 King v. Milverton (Lord of ley, 7 Iowa, 390. Hundred), 3 Ad. & E. 284. i King v. Abingdon (Mayor), 1 8 State v. Smith, 43 I1L 219 ; State L. Raym. 559 ; King v. Tregony v. Bordelon, 6 La. An. 68 ; People (Mayor), 8 Mod. Ill, 127; R. v. v. Secretary of State, 58 111. 90. Bankes, 3 Burr. 1452. 6 Q. v. Powell, 1 Q. B. 352. 2Farnsworth v. Boston (City), 121 7 Rex v. Bankes, 3 Burr. 1452. Mass. 173. 8 state v. Richter, 37 Wis. 275. 3 People v. Hilliard, 29 111. 41-3. 296 PARTIES TO MANDAMUS PROCEEDINGS. [§ 236. a designated time, and by their vote the inhabitants of the township should approve thereof, then the town reeve should make out and deliver to the railroad company de- bentures of the township to a certain amount, which should have the seal of the township thereto, and should be signed by the reeve and the town treasurer. Upon an application for a mandamus to compel the reeve to deliver the debent- ures properly signed and sealed to the railroad company, it appeared that the railroad had been completed to the point designated within the limited time, and that the vote of the inhabitants had been in favor of the subscription. The court made the rule to show cause absolute, holding that the township was not a necessary party, since it had noth- ing further to do in the matter, and that the town treas- urer was not a necessary party, as it did not appear that he was not willing to sign the debentures so soon as they were presented to him. 1 § 236. Contrary rulings on the last proposition. — There are a few decisions which have denied the right to make such joinder of respondents. A judgment that mandamus issue against a city comptroller to draw his warrant on the city treasurer for the amount due on bills which he had ap- proved, and against the latter to pay such warrants when drawm, was on appeal affirmed as to the comptroller, but dismissed as to the city treasurer, because he was not in default, since no warrants had as yet been drawn on him. 2 "Where a writ of mandamus was requested to compel the board of canvassers, of which the secretary of state was a member, to re-assemble and count the votes properly, and to the secretarv of state to record their findings and to give the relator the proper certificate of his election, the court considered that the application for a mandamus against the secretary of state could not be united with the application for the writ against the board of canvassers. Since the board of canvassers had not made a return of the election 1 Canada C. R R et al., In re, 35 2 State v. Mount, 21 La. An. 352. Up. Can. Q. B. 390. § 237.] PARTIES TO MANDAMUS PROCEEDINGS. 297 of the relator, the secretary had not been derelict in the duty desired from him. The court maintained that it would be an abuse of justice to convict one of non-feasance or mis- demeanor in neglecting his official duty in failing to certify to a fact, when the fact does not exist, or when he has not refused to do what may be required, and to mulct him in costs when he is not in default. 1 This decision is contrary to the general current of decisions, and does not seem to be in accord with the principles of justice. Occasions may arise where, under this ruling, a party would be compelled to resort to successive writs of mandamus before he could finally obtain his rights ; and in some cases he will be prac- tically deprived of his rights, either by the termination of his term of office or by a change of external circumstances. On the other hand, if such joinder be permitted in manda- mus proceedings, the parties so joined as respondents may in their returns disclaim any intention to obstruct proceed- ings or to refuse to perform the duty desired when the occasion therefor may arise, and the courts can award the costs according to their discretion. § 237. How the mandamus should be directed when a corporation is the respondent. — If the act sought is a duty incumbent on a corporation, the writ of mandamus should be directed to the corporation itself ; 2 or to the select body of officers within the corporation, whose province or duty it is to perform the particular act, or to put the nec- essary machinery in motion to secure its performance ; 3 or i State v. Gibbs, 13 Fla. 55. (Com'rs) v. United States, 112 U. S. 2 City v. Sansum, 87 I1L 182 ; King 217 ; King v. Smith, 2 M. & S. 583 ; v. Smith, 2 M. & S. 583 ; King v. Fisher v. Charleston (City), 17 W. Taylor, 3 Salk. 231; Fisher v. Va. 595; Buller's Nisi Prius, 200; Charleston (City), 17 W. Va. 595 ; Louisville (City) v. Kean, 18 B. Mon. State v. Chicago, etc. R. R, 79 Wis. 9 ; Eufaula (City Council) v. Hick- 259 ; 48 N. W. Rep. 243. man, 57 Ala. 338 ; Com. v. Pitts- 3 State v. Penn. R. R, 41 N. J. L. burgh (Select Council). 34 Pa. St 250; Rex v. Abingdon (Mayor), 2 496; People v. Throop, 12 Wend. Salk. 700 ; 1 Ld. Raym. 559 ; Rex v. 183 ; People v. New York (Com. Norwich (Mayor), Stra. •">.">; Mayor Coun.), 3 Keyes, 81 ; People v. Bloom- v. Lord, 9 Wall 409 ; Labette Co. ington (Mayor), 63 111. 207. 29S PARTIES TO MANDAMUS PROCEEDINGS. [§ 237. to the corporation and the select body jointly. 1 When, however, the writ of mandamus is addressed to a select body within a corporation, a board or tribunal composed of several persons, the question remains, whether the writ should be addressed to such body or board, as such, or to all the members thereof individually. Some courts con- sider it proper to address the writ to the body or tribunal who are to perform the act, omitting the names of the members thereof; 2 other courts have thought it proper to address the writ to the individuals composing such board or tribunal, with the addition of their titles or offices ; 3 again either mode has been considered to be admissible. 4 Where a board of supervisors of a county were required to reconvene to declare a certain resolution to have been adopted, when by an erroneous interpretation it had been declared to have been rejected, and to so record it, it was considered that the writ might run alone to the chairman and clerk of the board to reconvene the board, to declare the resolution to be carried and to so record the proceed- ings. 5 It would seem from these decisions that it is imma- terial whether in a mandamus proceeding to compel action by a municipality, a board, or a tribunal composed of sev- eral members, the respondents are the officers charged with the duty, or the select body composed of such officers, or the municipal body, board or tribunal. Whore in a man- 1 State v. Milwaukee (City), 25 Primrose, 23 Md. 482 ; Eufaula "Wis. 122; Wren v. Indianapolis (City Coun.) v. Hickman, 57 Ala. (City), 96 Ind. 206 ; Rex v. Norwich 338 ; Com. v. Pittsburgh (Sel. Coun.), (Mayor), Stra 55 ; Regina v. Here- 34 Pa. St. 496. In such cases the ford (Mayor), 2 Salk. 701 ; King v. writ will be bad. if it extends be- Smith, 2 M. & S. 583 ; Buller's Nisi yond the persons required by the Prius, 200. charter to concur in the thing cora- 2 People v. Champion, 16 John. 61 ; manded to be done. King v. Smith, Pees v. Leeds (Mayor), Stra. 640 ; 2 M. & S. 583. State v. Milwaukee (City), 25 Wis. 4 St. Louis Co. Court v. Sparks, 10 122 ; Wren v. Indianapolis (City), Mo. 117 ; Louisville (City) v. Kean, 96 Ind. 206. i8 B. Mon. 9. 3 Hollister v. Lucas Co. Ct * People v. Brinkerhoff, 68 N. Y. (Judges), 8 Ohio St 201 ; Mottu v. 259. § 238.] PARTIES TO MANDAMUS PROCEEDINGS. 299 damns proceeding against a corporation the members thereof were made the respondents, and not the corpora- tion itself, the court considered any objection to such ac- tion to be merely technical, and to be waived if not taken in limine} In proceedings to punish for contempt, though the mandamus was directed to the body or tribunal, as such, the individuals alone, who disobey, will be punished. 2 "Where it is held that a mandamus to compel action by a public body may be brought against the individuals com- posing such body, the doctrine of discontinuance does not apply relative to the members not served, and a court would err if it allowed the relator to discontinue the pro- ceedings as to those not served. 3 When the writ is directed to a municipal corporation, as such, under the common law it is to be delivered to the mayor thereof or other chief officer, as the most visible part of the corporation. 4 When the writ is against a private corporation, by the common law it should be served on the head officer of the company, or upon the select body within the corporation whose prov- ince it is to put in motion the machinery necessary to se- cure performance of the duty commanded, or upon that superior officer who would be expected to carry out a gen- eral order of the governing body of the corporation for the doing of the thing enjoined by the writ, the command of the writ standing for the corporate order. 5 But the mode of service of all legal writs is regulated by statute, where the necessary guidance in the matter must be sought. § 238. Does the writ abate upon the resignation or expiration of the term of office of the respondent? — Whether if an officer resigns or goes out of office during the pendency of mandamus proceedings against him, the i Fuller v. Plainfield A. School, 6 3 Eufaula (City Coun.) v. Hick- Conn. 532. man, 57 Ala. 338. 2 People v. Champion, 16 John. 4Regina v. Chapman, 6 Mod. R. 61 ; St. Louis Co. Court v. Sparks, 152 ; People v. Cairo (City Council), 10 Mo. 117; Houston (City) v. 50 111. 154. Emery, 76 Tex. 321 ; Eufaula (City 6 State v. Penn. R. R., 42 N. J. L. Coun.) v. Hickman, 57 Ala 338. 490. 300 PARTIES TO MANDAMUS PROCEEDINGS. [§ 238. cause can be further prosecuted, or revived against his suc- cessor, is a matter upon which there is a difference of opin- ion. On the one hand it is held that the cause may con- tinue ; that the proceeding is against the officer, and not against the individual ; and that such a course is necessary for the due administration of justice, since otherwise the court might be baffled by regular changes in office, or by resignations made for that purpose. 1 It has also been held that the writ may be revived against the successor of the respondent, 2 or it may proceed after a suggestion on the record of the change of respondent ; 3 and where an officer's term had expired before he had obeyed a peremptory writ, a rule was granted for the successor to show cause why he should not be made a party to the proceedings and a per- emptory writ issued against him. 4 On the other hand it is held that the death or resignation of an officer abates a mandamus proceeding against him ; that no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by this writ is the personal obligation of the individual to whom it addresses the writ ; if he be an officer and the duty be an official act, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. In proceedings by mandamus a demand is necessary, and if a demand were made, the successor might comply with its requirements. It was considered that a statute was neces- sary to allow mandamus proceedings to be continued against the successor of the respondent. 5 When the man- i State v. Gates, 22 Wis. 210 ; 2 Hardee v. Gibbs, 50 Miss. 802. State v. Packett, 7 Lea, 709 ; People So implied in State v. Guthrie, 17 v. Wexford Co. Treas., 37 Mich. 351 ; Neb. 113. State v. Warner, 55 Wis. 271 ; 3 Lindsey v. Kentucky (Auditor). Rochester (Mayor) v. Queen, 27 L. 3 Bush, 231. J. Q. B. 434; People v. Collins, 19 * p e0 ple v. Barnett (Sup'r), 100 111. Wend. 56; People v. Bacon. 18 332. Mich. 247; Clark v. McKenzie, 7 s United States v. Boutwell, 17 Bush, 523; Doolittle v. Branford Wall. 604; Secretary v. McGarra- (Selectmen), 59 Conn. 402. ban, 9 Wall. 298. It is difficult to § 239.] PARTIES TO MANDAMUS PROCEEDINGS. 301 damns proceeding is allowed to continue, though the re- spondent has gone out of office, without any notification to his successor, and the peremptory writ is issued, proceed- ings for contempt will not be sustained, unless some notice of the court's action, or a request to him to obey such order, has been served on such successor. 1 § 239. When the resignation alone does not vacate the office, such resignation may be disregarded till the office is legally vacated. — Where, however, an officer's resigna- tion by law is not effective till it is properly accepted or his successor has qualified, it may be disregarded in such proceedings till it has been accepted or his successor has qualified ; 2 but ordinarily a resignation is effective so soon as it is made. 3 Where a charter was repealed, but the exist- ing officers were continued with power to levy and collect taxes to pay the debts of the municipality, the court denied their power to resign with a view to escape from such du- ties, where the law had made no provision for the discharge of those duties by others or for successors to the incum- bents. 4 Since the proceedings in writs of mandamus have reconcile these decisions with the of office have been those of officers subsequent one of Thompson v. of the government, whose alleged United States, 103 U. S. 480. In delinquency was personal, and did the latter case, which was a pro- not involve any charge against the ceeding to compel a town clerk to government whose officers they make and deliver to the supervisor were." Why do not all cases of of the town a copy of a judgment mandamus against officers fall against the town, in order that the under this category? latter might include it in Ins tax 1 State v. Warner, 55 Wis. 271. levy, the court held that the pro- 2 United States v. Badger, 6 Biss. ceedings did not abate by the resig- 308 ; S. C. as Badger v. United nation of the town clerk. The States, 93 U. S. 599 ; Jones v. Jef- court, however, endeavored to dis- ferson City, 66 Tex. 576 ; Edwards tinguish this case from other v. United States, 103 U. S. 471. cases in which it had held that the 3 State v. Lincoln (Mayor), 4 Neb. writ abated by such resignation. 260 ; Amy v. Watertown, 130 U. S. The court said that "the cases in 301. which it has been held by this 4 Gorgas v. Blackburn, 14 Ohio, court that an abatement takes 252. place by the expiration of the term 302 PAKTIES TO MANDAMUS PROCEEDINGS. [§ 240. been largely an outgrowth of judicial legislation, it would seem but proper to allow their revival against the successor of the respondent in accordance with the dictates of jus- tice. Some courts have considered it to be better to bring the writ against the officer by the title of the office, omit- ting his own name, to avoid any inconvenience from change of person in the office ; * and precedents therefor may be found among the early cases. 2 § 240. When a corporation or a select body is the re- spondent, no change in its membership will affect the proceedings. — When, however, the writ of mandamus is brought against a corporation, or a select body or board, it is universally agreed that the proceedings will be in no way affected by any change in the membership of such body or board, since a body is always in existence to discharge the duty required of it. 3 The performance of the duty will be required of those in office when the peremptory writ issues, and they will be held responsible for any disobedience. 4 Where, however, a municipal corporation has been abol- ished and its functions have been distributed among two new corporations, each of which has a different jurisdiction from thatt)f the former corporation, and upon neither has the power been conferred to do the act desired, though the former corporation possessed such power, in such cases a mandamus will not lie to compel the performance of such act. The only remedy is an application to the legislature.* 1 Chance v. Temple, 1 Iowa, 179 ; State v. Madison (City), 15 Wis. 30 ; State v. Elkinton, 30 N. J. L. 335. Sheaff v. People, 87 111. 1L9 ; State 2 Reg. v. Clitheroe, 6 Mod. 133. v. New Orleans. 35 La. An. 68; 3 Com'rs v. Sellew, 99 U. S. 624 ; Hollon Parker, Petitioner, 131 U. S. United States v. Dubuque Co. 221. (Com'rs), Morris, 31 ; Pegram v. 4 State v. Madison (City), 15 Wis. Cleaveland Co. (Com'rs), 65 N. C. 30 ; Columbia Co. (Com'rs) v. Bry- 114: Columbia Co. (Com'rs) v. Bry- son, 13 Fla. 281 ; Pegram v. Cleave- son, 13 Fla. 281 ; Fisher v. Charles- land Co. (Com'rs), 65 N. C. 114; ton (City), 17 W. Va. 595 ; State v. ComVs v. Sellew, 99 U. S. 624. CutWrie, 17 Neb. 113; Doolittle v. ^Barkley v. Levee Com'rs, 93 Branf ord (Selectmen), 59 Conn. 402 ; U. S. 258. §§ 241, 242.] PARTIES TO MANDAMUS PROCEEDINGS. 303 . § 241. Mandamus not lie to one haying no duty in the premises, or who has gone out of office. — Parties who have no duties in the premises or whose term of office has expired, or whose offices have been abolished, cannot be made respondents in proceedings by mandamus. A man- damus will not lie : to a canvassing board to re-assemble and count tlie votes after the repeal of the law by which such board was created ; ! to compel the mayor of a municipality to act as such after the abolition of such municipality by statute; 2 to make a judge sign a bill of exceptions after he has gone out of office ; 3 to compel an assessor to assess cer- tain property, when he has no longer any control over the assessment ; 4 or to compel a party to do any official act, when he is functus officio, and the act is not within his power. 5 Though there is some contrariety of opinion as to whether a canvassing board, after it has declared the result of the count of the votes and adjourned sine die, can be re- quired to reconvene and recount the votes in a proper man- ner, yet the weight of opinion is, that their duties continue till they have discharged their duties properly, in the ab- sence of a law limiting the existence of the board, and that they can be compelled to reconvene. 6 § 242. Can third parties he subsequently Drought in as relators or respondents? — Whether after mandamus proceedings have been instituted other persons can be made parties thereto, either at their own request, or by order of court on suggestion or at its own motion, is a question which has often been considered by the courts. Some courts have denied the propriety of such proceedings, claiming that the only parties to a mandamus proceeding are the relator, who claims to be entitled to the perform- ance by an officer of some duty imposed on him by law, i Mackey, Ex parte, 15 S. C. 322 ; 5 State v. Waterman, 5 Nev. 323 ; State v. Gibbs, 13 Fla. 55. Lamar v. Wilkins, 28 Ark. 34 ; 2 State v. Steen, 43 N. J. L. 542. Mason v. School Dist, 20 Vt 487. ^ Ante, §193. * Ante, § 185. 4 State v. Archibald, 43 Minn. 328. 304 PARTIES TO MANDAMUS PROCEEDINGS. [§ 242. and the officer who refuses to perform such duty. 1 A man- damus proceeding was instituted to compel the levy of a tax to pay a debt claimed to be due to A. Citizens of the borough asserted a right to intervene and defend, and alleged fraud and collusion between A. and the borough authorities. The court refused their application, stat- ing that they had no common-law right to intervene. 2 "Where an application was made to compel by mandamus the clerk of a common council to amend his record so as to show the appointment of the relator by the council as a policeman in the place of A., it was held that neither A. nor the city was a necessary or proper party to the action, that the question was merely as to the truth of a record, and that the effect of the proceeding on the rights of others was immaterial. 3 Certainly a third party should not be allowed to intervene as a relator, and claim affirmative re- lief in his own behalf, thus introducing a foreign element into a suit brought by another. Where a city treasurer sought to obtain by mandamus money belonging to the city in the hands of the county treasurer, the interplea of another, who claimed himself to be the city treasurer, ask- ing that the money be ordered to be paid to him, was dismissed, nor was he allowed to appeal from the judgment rendered, since he was not a party to the proceeding. 4 A town treasurer asked for a mandamus to compel the pay- ment to him of money collected by the sheriff for the benefit of the town. The sheriff in his return admitted the collection of the money mentioned, but averred that the county officers had ordered him to pay it to the county treasurer, averred that he was indifferent as to the matter, and prayed that tjie county be made a party to the pro- ceedings. The county filed an interplea, praying to be made a party thereto, and setting up a defense to the writ. The court decided that the county had no claim to be made 1 State v. Smith, 7 Rich. (N. S.) 275 ; 3 Farrell v. King, 41 Conn. 448. State v. Williams, 96 Mo. 13. 4 Winstanley v. People, 92 IlL 402. 2Hower's Appeal, 127 Pa. St 134. § 2-t2#.] PARTIES TO MANDAMUS PROCEEDINGS. 305 a party to the proceedings, and that the respondent could not by his answer turn a mandamus proceeding into a bill of interpleader. 1 § 242a. Subject continued. — There are, however, so many decisions that a third party, whose interests are affected by the proceedings, may be brought into them as a respond- ent, that such may be considered to be the general rule. In a mandamus proceeding to compel the election of a mayor of a borough, wherein a prior election was claimed to be void, the court ordered that the mayor de facto be served, asserting that common justice required he should be heard in his defense before an order was issued to elect another person in his place. 2 Upon the filing of an application for a rule on the judges of a court to show cause why a man- damus should not issue directing them to admit the relator as clerk of their court, it was ordered that the incumbent of the office should be notified of the proceedings. 3 Upon an application for a mandamus to compel the board of ex- aminers to give a certificate of election to the relator, though they had already issued a certificate to A., the court ordered that notice of the proceedings be given to A. ; 4 and in a similar case a notice was ordered to be given to the incumbent of the office. 5 A mandam us, to make a judge render judgment in a case on an alternative verdict accord- ing to the election of the plaintiff, was refused without prejudice, and with liberty to review the application after notice thereof had been given to the defendant in such case. 6 In a proceeding by mandamus to compel the road overseer to remove certain fences placed across a highway, the court required the party who owned the land where the fences were, and who had put them up, to be made a party de- fendant and to be served with notice. 7 In a case where the supervisors were ordered to remove trees from a road, 1 State v. Burkhardt, 59 Mo. 75. 4 Luc e v. Mayhew, 13 Gray, 83. 2 Rex v. Bankes, 3 Burr. 1452. 5 Strong, Petitioner. 20 Pick. 484 3 Dew v. Sweet Springs (Judges), 3 6 State v. Mills, 27 Wis. 403. Hem. & M. 1. 7 Larkin v. Harris, 36 Iowa, 93. 20 306 PARTIES TO MANDAMUS PROCEEDINGS. [§ 242a. the person who was benefited by the trees was made a party to the proceedings, and apparently without objection. 1 In a proceeding to compel the granting of the probate of a will to the executors thereof, it was ordered that the cestuis que trust be notified and allowed to answer. 2 When in a mandamus proceeding to compel the auditor of state to issue a certificate to the relator, the return stated that B. had obtained an injunction against his so doing, the court required B. to be made a party to the proceedings before a peremptory writ would be granted. 3 In a mandamus pro- ceeding to compel a justice of the peace to assess the damages in a replevin suit which he had dismissed, the plaintiff in the replevin suit was made a respondent, and the court as- sessed the costs of the proceedings against him. 4 In a pro- ceeding to compel a returning officer to issue to the relator a certificate of election, a third party who claimed to have been elected asked to be made a party to the proceedings, and asserted that the return of the respondent was evasive and collusive. The court ordered that such third party be admitted as a party, unless the respondent properly cor- rected his return as to the matters objected to. 5 In a pro- ceeding to compel a county treasurer to execute tax deeds for lands sold for taxes, the owner of the land was allowed to intervene. 6 In proceedings to compel a tax collector to pay money collected as taxes, which after litigation had been declared to be legal, into the public treasury at the time required by law, intervenors were allowed to become parties thereto. 7 Where a party tried by this proceeding to compel the state treasurer to recognize him as the fiscal agent of the state and to deposit with him all the public funds, the state was allowed to intervene. 8 Where there was an effort to procure a mandamus to compel the elec- i Patterson v. Vail, 43 Iowa, 142. 5 State v. Williams, 99 Mo. 291. 2 Rex v. Simpson, 3 Burr. 1463. estate v. Patterson, 11 Neb. 266. 3 Livingston v. McCarthy, 41 7 People v. Austin, 46 Cal. 520. Kans. 20. 8 State v. Dubuclet, 27 La. An. 29. * Johnson v. Dick, 69 Mich. 10a § 243.] PARTIES TO MANDAMUS PROCEEDINGS. 307 tion board to recanvass the votes for the location of the county seat, citizens were allowed to intervene on their allegation of collusion and fraud between the relator and the respondents relative to such recanvass. 1 To an appli- cation to compel a sheriff to serve a warrant of arrest on A. and carry him before a justice of the peace for trial, A. was allowed to appear by attorney in opposition to the ap- plication. 2 It was considered that, in order to be allowed to intervene in such cases, the applicant must show that he will either gain or lose by the direct legal operation or effect of any decision that may be rendered therein. 3 To an application to compel a railroad company to receive and recognize A. as a director, instead of B., who was acting as such, the court refused to consider the matter until B. was made a party to the proceedings. 4 § 243. Third persons interested should be allowed to intervene or should be made parties. — It would seem to be but proper for the relator in the first instance to make a third person a party to the mandamus proceedings, as a respondent therein, in all cases where he has such interests in the matter that the court upon application will order that he be made a party. Furthermore, for the enlighten- ment of the court and the furtherance of justice, it is desir- able that the party representing the adverse interest should be a party to the proceedings, especially as the officer, who is the actual respondent, is often indifferent on the subject. In one case, where a third party's intervention in the pro- ceedings was dismissed, the court recognized the necessity for the presentation of his defense by stating that he might advance it by using the respondent's return for that pur- pose, the respondent assenting thereto. 5 Owing to the con- 1 State v. Matley, 17 Neb. 564. The same court in a subsequent 2 Beecher v. Anderson, 45 Mich, case was compelled to issue an 543. order that the respondent, who was 3 State v. Wright, 10 Nev. 167. indifferent as to the result, should 4 Cross v. West Va, etc. R R., 34 amend his return in order to pro- W. Va. 742. tect the rights of a third party, or 5 State v. Burkhardt, 59 Ma 75. in default thereof such third party 308 PARTIES TO MANDAMUS PROCEEDINGS. [§ 244. flict in the decisions, it seems better not to make a party a respondent in the proceedings, when there is any doubt as to the propriety thereof, and to leave the matter to the court, which can order that such parties be added as re- spondents, if it deems it proper. 1 § 244. Third parties not allowed to intervene to liti- gate matters not involved in the mandamus proceed- ings. — When, however, the interests sought to be protected cannot properly be litigated in mandamus proceedings, the parties will not be allowed to appear therein as respond- ents. In a mandamus proceeding to compel the auditor of state to draw his warrant on the state treasurer, a party claiming a lien upon the debt due from the state to the re- lator will not be allowed to intervene in order to litigate with the relator the validity of his claim. 2 So when a party applied for a mandamus to compel the proper city officer to record his judgment against the city, as required by law, and the officer in his return claimed that such judgment could only be recorded against certain funds collected by the city for the benefit of A., and asked for a rule for A. to show cause why this should not be done, which rule was granted, the appellate court in its review decided, that a third party could not be brought in to answer a call made upon an officer to perform a mere ministerial duty. 3 would be admitted as a party to l State v. Johnson Co. (Bel. the proceedings. State v. Williams, Equal.), 10 Iowa, 157. 99 Mo. 291. 2 Hewitt v. Craig, 86 Ky. 23. 3 State v. Brown, 28 La. An. 103. CHAPTER 19. PLEADINGS AND PRACTICE IN MANDAMUS PROCEEDINGS. § 245. First proceeding is a motion asking for the writ 246. The motion for a mandamus must be verified. 247. The affidavits for the motion should be entitled of the court but not of the causa 248. Sufficiency of the jurat to the petition for a mandamus. 249. Action of the court on the petition for a mandamus. 250. When the court will grant the alternative writ on the motion to show cause. 251. When the court will issue a peremptory writ without any notice to the respondent 252. Action of the court on the hearing of the motion to show cause. 253. The alternative writ becomes the first pleading in the cause. 254. Particularity of statement required in the alternative writ. 255. Subject continued 256. Illustrations of the particularity required in the writ 257. The alternative writ must show that the proper demand of per- formance was made or the facts rendering a demand unnec- essary. 258. A refusal by the respondent to act must be alleged in the alter- native writ or the facts equivalent to a refusal. 259. The alternative writ must show that the relator has no legal remedy except the writ of mandamus. 260. Particularity required in the mandatory clause of the alternative writ. 261. Documents of importance in the case should accompany a peti- tion for a mandamus. 262. The alternative writ should conform to the petition. 263. Mode of setting out the facts in the alternative writ 264. The manner in which mandamus proceedings are entitled. 265. Where there is an informality in the alternative writ an alias may issue. 266. Proceeding when no return is made to the alternative writ 267. A return of obedience to the alternative writ 268. The early practice in mandamus proceedings. 269. When a motion lies to quash the alternative writ 270. Demurrer to the alternative writ 310 PLEADINGS AND PRACTICE. § 271. Amendment to alternative writ 272. Return after the overruling of the demurrer to, or motion to quash, the alternative writ 273. No prescribed form for a return, but it must contain the neces- sary allegations. 274. Certainty and completeness of statement required in a return. 275. Certainty required in a return to a writ to restore a party re- moved from office or membership in a corporation. 276. A return is sufficient which follows the suggestions of the writ. 277. Several defenses may be stated in a return. 278 Pendency of other litigation pleaded in abatement. 279. Pleas puis darrein continuance. 280. Positiveness of allegation required in a return. 281. Instances of returns whicli were adjudged to be insufficient 282. Who shall make the return. 283. Verification of the return. 284. Treatment of a return which is evasive or frivolous. 285. Demurrer to a return and rules governing it 286. Subject continued. 287. Amendment of return. 288. Reply to the return. 289. Reply and subsequent proceedings. 290. Trial by jury. 291. Relator must prove his right to all he asks for. 292. General rules of practice and of pleading as applicable to man- damus proceedings. 293. Amendments under the early practice. 294. Amendments under the present practice. 295. All the issues must be disposed of before the peremptory writ will issue. 296. How far the peremptory writ must conform to the alternative. 297. When the peremptory writ will be quashed, or disobedience of it excused. 298. Attachment for making no return to or for not obeying a per- emptory writ. 299. The peremptory writ must be fairly and honestly complied with. 300. Defenses which may be urged against an attachment on the hearing of a motion to show cause why an attachment should not issue for disobeying a peremptory mandamus. 301. Defects appearing on the papers, on account of which an attach- ment for disobedience of a peremptory writ of mandamus will be refused. 302. Proceedings when a party is adjudged guilty of contempt of court. 303. Proceedings for contempt of court against corporations and boards. § 245.] PLEADINGS AND PEACTICE. 311 § 304. When an appeal lies in a mandamus proceeding under English law. 305. An appeal is granted in America, in mandamus proceedings, whenever the action taken is considered to be a final judg- ment. 306. Appeal or writ of error lies if the writ is refused on the reading of the petition. 307. Proceedings in review in the appellate court. 308. The right to review mandamus proceedings by appeal or writ of error does not always exist 309. Is a peremptory mandamus suspended by an appeal with an in- demnifying bond? 310. Costs in mandamus proceedings. ' § 245. First proceeding is a motion asking for the writ. — The usual course in applying for a mandamus is to make a motion in open court, founded upon an affidavit or a sworn petition. 1 Affidavits which were introduced in such cases might be made by third parties, 2 who were not in- terested and were competent. 3 The proceedings are often regulated by statute, 4 but it is not believed that such statutes depart much from the common-law practice. In one state it is permissible in a suit at law to ask in the complaint for a mandamus to enforce the judgment when obtained, 5 which is in conformity with the recent legislation in England. In some courts leave must first be obtained from the court before it is admissible to make an application for a man- damus? The usual practice now T is for the relator to file a petition which contains all the averments necessary to put the court in full possession of all the facts in the case, and shows the necessity for the relief desired, and at the same time requests such relief. i Potts v. State, 75 Ind. 336; Ter. 3 Cannon v. Janvier. 3 Houst 27. v. Potts, 3 Mont 364; State v. People v. Pearson, 3 Scam. 270; Owen, Skin. 669. People v. Ulster Co. (Judges), 1 2 King v. Esham, 2 Barn. 265 ; John. 64 ; State v. Jones, 1 Ired. United States v. Lee Co. (Sup'rs), 2 129 ; Fisher v. Charleston (City), 17 Biss. 77 ; Rex v. Rye (Mayor), Burr. W. Va. 595. 798; State v. Baird, 11 Wis. 260. 1 State v. Gandy, 12 Neb. 232. 3 Coventry (Mayor), Case of, 2 8 People v. Pearson, 2 Scam. 189. Salk. 429. 9 State v. Baird, 11 Wis. 260. * King and Owen, Skin. 669. §§ 267, 26S.] PLEADINGS AND PRACTICE. 331 the failure of a public officer to interpose matters of de- fense, when substantial proof of the relator's right is want- ing. 1 § 267. A return of obedience to the alternative writ.— After the alternative writ is issued the relator can obey the writ, and can comply with the order therein contained and make a return stating such obedience, or he may move to quash the writ or may demur to it, or make a return, de- nying the facts stated therein or setting up new matter constituting a defense. 2 If the respondent elects to obey the writ, his return should show clearly his compliance by following the mandatory clause of the writ and stating his performance of the duty as by the writ commanded. 3 The respondent may, on the other hand, return obedience to a part of the alternative writ, and give his reasons for refus- ing to obey the rest of it. 4 It may be that the respondent returns obedience to the writ, but the relator asserts that such return is not true or is a mere evasion. In such cases the relator is allowed by plea to traverse a return of un- conditional compliance with the writ. 5 § 268. The early practice in mandamus proeeedings.- Before proceeding to consider the present practice in such matters it will be well to call attention to the old prac- tice. The practice in mandamus proceedings has changed very much since the adoption of the statute of 9 Anne, chapter 20, though at first the English courts claimed that it made but little difference, save that it conferred the right to traverse the allegations of the return, and, as a conse- quence, gave a trial of the disputed matters of fact ; but they and the American courts have more and more assimilated the proceedings in the case of a mandamus to those of an ordinary action at law, and whereas any error was fatal and any decision of a legal question was final, now the lArbeny v. Beavers, 6 Tex. 457. "King v. Staffordshire (Just.). 6 2 Swan v. Grav, 44 Miss. 393 ; A. & E. 84. Newman, Ex parte, 81 U. S. 152. 5 Q. v. Pirehill North (Just.). 13 3 State v. Williams, 69 Ala. 311. Q. B. D. 696 ; 14 Q. B. D. 13 ; Q. v. King, 20 Q. B. D. 430. 332 PLEADINGS AND PRACTICE. [§ 26S. courts allow amendments to be made, and traverses to be filed after the overruling of demurrers and motions to quash, very much as in any suit at law. We will first state the old practice, which has been modified from time to time, till its harsh rules have generally been abrogated. If the respondent objected to the legal sufficiency of the writ, he moved to quash it or filed a return, alleging that under the law he was not required to do the act desired by the relator, whereupon a concilium was asked for and granted, under which the question was argued and disposed of as though it were a demurrer. 1 If the motion to quash the writ was overruled the writ was made peremptory; 2 and the same rule was enforced, when on a concilium the writ was found to be legally sufficient. On the other hand, when the writ was adjudged to be insufficient on a concilium or a motion to quash, the proceedings were dismissed. If a return con- troverting the facts and stating reasons why the respond- ent had not obeyed the writ was filed, the relator might object thereto by a motion to quash, or he might pray for and obtain a concilium-, whereupon the question was argued and decided as on a demurrer. 3 The concilium was an inven- tion of the courts, because the statute of 9 Anne, chapter 20, which undertook to regulate mandamus proceedings, failed to provide for a demurrer to the pleadings above mentioned. There seemed to be a preference for a concilium, unless the return was frivolous, contemptuous or manifestly bad on its face, when the motion to quash was used, though it could be used on all occasions if the party so. chose. 4 If the re- turn was adjudged to be insufficient, the peremptory writ of mandamus was granted at once. 5 If, however, the re- 1 King v. St. Panoras, 1 N. & P. London (Mayor), 3 B. & Ad. 205 ; 507 ; Chance v. Temple, 1 Iowa, 179. Pattison, J., in Q. v. Eastern Co. 2 King v. Tucker, 3 B. & C. 544. R. R, 10 A. & E. 531, 558. 3 Q. v. St. Saviour (Church-war- * New Haven, etc. R. R v. State, dens), 7 A. & E. 925 ; Pattison, J., 44 Conn. 376 ; Silverthorne v. War- in King v. Oundle (Lord of), 1 A. ren R R. 33 N. J. L. 173. &E. 283, 299; King v. Ouze Bank 5Bullers Nisi Prius, 197, 198: Com'rs, 3 Ad. & R 544 ; King v. King v. Oundle (Lord of), 1 Ad. & § 268.] PLEADINGS AND PRACTICE. "-"> ;> > lator had questioned the sufficiency of the return by means of a concilium, he was not allowed, after the decision was against him in such a proceeding, to traverse the facts stated in the return, for he thereby admitted that upon its face the return was a sufficient answer, and a judgment was ren- dered for the respondent. 1 The allegations of fact contained in the return could not be traversed, and for this reason, and because the proceeding was intended to be a speedy remedy, the courts required each party to state his claims fully in his pleadings, and allowed no amendments to be made to the pleadings except of the most formal kind, 2 and in overruling any action by either party gave final judg- ment in favor of the other party. If the relator admitted the return to be good in point of law, but claimed that the statements contained therein were not true, his remedy was to bring an action against the respondents for making a false return. Such action was required to be brought in the same court, namely, in the king's bench. It would not suffice to bring such a suit in the common pleas court. 3 But such action could not be brought till judgment had been entered on the return, since, until it was adjudged that the return was good in law, it did not appear that the relator had suffered any damages by such return. 4 If the relator succeeded in his action for a false return, the court then ordered the issue of the peremptory writ of mandarin/* under his original proceedings. 5 When the respondent was a corporation, the action for a false return, being an action for damages for a wrongful act, could be brought against the whole corporation, or against any particular member El. 283; Q. v. St. Andrews (Gov.), & Ad. 255: People v. Finger, 24 10 A. & E. 736 ; R. v. March, 2 Burr. Barb. 341. 999 ; R. v. Dublin (Dean), 8 Mod. 27 : 2 § 293. Rex v. Norwich (Dean), Stra. 159 ; 3 Puller's Nisi Prius, 197, 198. Q. v.Poole (Mayor), 1Q. B.616; Rex * Enfield v - Hills > 2 Lev - 336 5 v. Maiden (Corp.), 2 Salk. 431 ; 1 L. State v. Ryan, 2 Mo. Ap. 303. Raym. 481 ; 3 Stephen's Nisi Prius, 5 Buckley v. Palmer, 2 Salk. 430 ; 2328. Swan v. Gray, 44 Miss. 393. 1 King v. London (Mayor), 3 B. 334 PLEADINGS AND PRACTICE. [§ 269. of it. 1 The act of 9 Anne, chapter 20, allowed the return to be traversed in cases of contests about public offices, and has since been extended to every mandamus proceeding. In America, either b}^ statute or by the rulings of the courts, the returns were allowed to be traversed, and it is believed that now in all of the states such practice is admissible. As a consequence the action for a false return has become obsolete, and need be no further considered. As already stated, the practice in a mandamus proceeding has changed very much since the statute of 9 Anne, chapter 20, whereby a traverse was allowed to the return in many cases, and pleadings found to be defective are allowed to be amended. We will proceed to consider the pleadings and practice in such cases as now generally adopted. § 269. When a motion lies to quash the alternative writ. — A motion to quash the alternative writ of man- damus is proper, when it does not disclose a case coming within the legitimate scope of a mandamus, or when it is informal or defective by omission of necessary parties or of some material fact. 2 If the facts set forth in the writ do not show a legal title in the relator, such writ may be quashed. 3 A motion to quash the alternative writ is equiv- alent to a demurrer, 4 and it is a matter of little moment, whether the objections to the writ be urged by demurrer or by a motion to quash. 5 Where the questions involved were very important, it has been considered not proper to decide them on a motion to quash the writ, which was re- garded as an informal proceeding, but that they should be presented by plea or demurrer. 6 Most of the courts will 1 Reg. v. Chapman, 6 Mod. 152. 451 ; Fisher v. Charleston (City), 17 When this decision was made in W. Va. 595. 1707, the writ was only brought 3 Levy v. Inglish, 4 Ark. 65. against municipal corporations. 4 Cram v. Francis, 24 Kans. 750 ; 2 Anon., 2 Salk. 525 ; Commercial Rice v. State, 95 Ind. 33 ; State v. Bank v. Canal Com'rs, 10 Wend. Sheridan, 43 N. J. L. 82. 25; State v. Sheridan, 43 N. J. L. 5 State v. Everett, 52 Mo. 89. 82 ; Harwood v. Marshall, 10 Md. * State v. Penn. R R, 41 N. J. L. 250. § 269.] PLEADINGS AND PRACTICE. 335 hardly regard the latter objection as tenable, since the questions may be as fully considered on a motion to quash as on a demurrer. When an alternative writ had been granted after argument and upon notice and after deposi- tions had been taken, the court properly refused to enter- tain a motion to quash it on the ground that it had been improvidently granted. 1 A motion to quash admits as true only such allegations of the alternative writ as are well pleaded, and does not admit matters of law, legal conclusions or statutory construction. 2 Mere formal defects may be reached by a motion to quash. 3 Such objections must always be taken in limine, and will not be considered after a return has been made to the writ. 4 Where it was objected, after a return had been made, that the three relators represented the grievances of their three respective towns, and therefore could not join in one writ, the court considered the objec- tion to be merely formal, and that, if available at all, it should have been urged by a motion to quash. 5 When the writ is defective in substance, it is subject to objection at any period in the case prior to the granting of the peremp- tory writ, and may be quashed therefor. 6 The respondent has been allowed to impeach the validity of the alternative writ upon a demurrer to a traverse to a return, 7 and even on an attachment for contempt. 8 An alternative writ was quashed for gross faults after the time for making a return i State v. Penn. R. R, 41 N. J. L. (Sup'rs), 15 Barb. 607 ; Commercial 250. Bank v. Canal Com'rs. 10 Wend. 2 State v. County Court, 33 W. Va. 25 ; Trustees of Canal (Bd.) v. Peo- 589 ; Dillon v. Barnard, 21 Wall. 430 ; pie, 12 111. 248 ; People v. Fulton United States v. Ames, 99 U. S. 35. (Sup'rs), 14 Barb. 52 ; King v. Mar- 3 Trustees of Canal (Bd.) v. Peo- gate Pier Co., 3 B. & Aid. 2'20 ; Peo- ple, 12 111. 248. pie v. Batcbellor, 53 N. Y. 128; * Fuller v. Plainfield A. School, 6 Haskins v. Scott Co. (Board of Conn. 532 ; People v. Sullivan Co. Sup'rs), 51 Miss. 406 ; People v. (Sup'rs), 56 N. Y. 249; Commercial Davis, 93 111. 133; Hawkins v. Bank v. Canal Com'rs, 10 Wend. 25. Moore, 3 Ark. 345 ; Knight v. Ferris, » People v. Ontario Co. (Sup'rs), 6 Houst. 283. 85 N. Y. 323. " Clarke v. Leicestershire, etc. 6 Fisher v. Charleston (City), 17 Canal, 6 Ad. & E. (N. S.) 898. W. Va. 595 ; People v. Westchester 8 Q. v. Ledyard, 1 Q. B. 616. 33(5 PLEADINGS AND PRACTICE. [§§270-272. had expired and without requiring first a return from the respondent. 1 The motion to quash, like a demurrer, should be made before a return is made to the writ. 2 §270. Demurrer to the alternative writ. — Instead of moving to quash the alternative writ, the respondent may demur to it. As already mentioned, the statute of 9 Anne, chapter 20, did not authorize a demurrer to the alternative writ, and the English courts would not allow such a de- murrer to be filed ; but they granted, upon application, a concilium, which is equivalent thereto. In America the usual practice is to allow the respondent to demur to the alternative writ without resorting to the circumlocution of a concilium. 3 It is allowable, however, to put in a return, which raises law points, and to that extent is practically a demurrer. 4 § 271. Amendment to alternative writ.— In case the alternative writ is found to be defective on a motion to quash or on demurrer, the relator will be allowed to amend it if he so desires. 5 § 272. Return after the overruling of the demurrer to, or motion to quash, the alternative writ. — The custom now is, if the demurrer to, or the motion to quash, the al- ternative writ is overruled, to allow the respondent to put in a return. 6 This is not conceded to be a matter of riffht, i King v. Willingford (Just), 2 111. 456 ; Wheeler v. Northern C. I. Barn. 132. Co., 10 Colo. 583 ; Brown v. Ruse, 69 2 Poteet v. Com'rs, 30 W. Va. 58. Tex. 589 ; People v. Salomon, 46 111. * Newman, Ex parte, 81 U. S. 152 ; 333 ; State v. Lafayette Co. Court, State v. Jennings, 56 Wis. 113 ; Ly- 41 Mo. 545 ; Morton v. Compt. Gen., man v. Martin, 2 Utah, 136 ; State 4 Rich. (N. S.) 430 ; Long v. State, v. Sheridan, 43 N. J. L. 82; State v. 17 Neb. 60; Wise v. Bigger, 79 Va. Chicago, etc. R. R, 19 Neb. 476; 269. Boone Co. (Com'rs) v. State, 61 Ind. 5 § 294. 379 ; Chance v. Temple, 1 Iowa, 179 ; e State v. Jennings, 56 Wis. 113 ; State v. Lafayette Co. Court, 41 Mo. State v. Sheridan, 43 N. J. L. 82 ; 545; Lee Co. v. State, 36 Ark. 276 ; Chance v. Temple, 1 Iowa, 179; Hardee v. Gibbs, 50 Miss. 802 ; Swan Meyer v. Dubuque (City), 43 Iowa, v. Gray, 44 Miss. 393 ; Meyer v. Du- 592 ; Lyman v. Martin, 2 Utah, buque (City), 43 Iowa, 592. 136 ; Hardee v. Gibbs, 50 Miss. 802 ; 4 Madison Co. Court v. People, 58 State v. Lean, 9 Wis. 279 ; State v. §§ 273, 274] PLEADINGS AND PRACTICE. 337 but is considered to be proper, when justice requires that the respondent should be allowed to answer. Sometimes the court has required the respondent to first submit to it his proposed answer, or to show the merits of his defense by an affidavit, or has received the oral statements of his counsel in lieu of an affidavit. In such cases, if the court considered the proposed defenses to be without merit, or that they had already been passed on in the decision of the demurrer or motion to quash, the respondent was not allowed to make a return and the peremptory writ was ordered. 1 § 273. No prescribed form for a return, but it must contain the necessary allegations. — As stated before, there is no prescribed form for a return, and it may be very informal, provided it contains the necessary allegations. Legal objections to the writ have often been urged by way of answer, instead of by demurrer or motion to quash. Loner legal arguments have sometimes been inserted in the returns, which practice, though sometimes reprobated, has not been decided to be inadmissible. 2 § 274. Certainty and completeness of statement re- quired in a return.— Growing out of the rule, that a re- turn to a mandamus could not be traversed, there was no form of pleading known to the law in which greater cer- tainty was required than in a return to a writ of man- damus? Lord Coke says there are three kinds of certainty, which may be used in pleading, viz.: 1. Certainty to a common intent, which is sufficient in a plea in bar. 2. Cer- tainty to a certain intent in general, as in counts, replica- tions, etc., and in indictments. 3. Certainty to a certain in- Grand Island, etc. R. R, 27 Neb. 55 Pa. St 28; Smyth v. Titcomb, 694# 31 Me. 272 ; Wright v. Johnson, 5 1 State v. Lafayette Co. Court, 41 Ark. 687 ; White v. Holt. 20 W. Va. Mo. 545; State v. Bergen (Free- 792; Bradstreet, Ex parte, 7 Pet. holders), 52 N. J. L. 313. 634. 2 State v. Judge Third Dist. Ct, 6 » Prospect Brewing Co.'s Petition, La. An. 484 ; Morton v. Cornpt. Gen., 127 Pa St 523 ; Harwood v. Mar- 4 Rich. (N. S.) 430 ; Conrow v. Schloss, shall, 10 Md 451. 22 338 PLEADINGS AND PRACTICE. [§ 274. tent in every particular,which the law rejects as partaking of too much subtlety. 1 Certainty to a certain intent in gen- eral was considered to be necessary in a return to an alter- native writ of mandamus; 2 and it has ever been considered that certainty to a certain intent in every particular was required, 3 though such certainty is by other authorities only necessary in pleas of estoppel, 4 and in pleas not favored by the law, s uch as the plea of alien enemy. 5 The courts held that the statute of 9 Anne, chapter 20, made no change as to the certainty required in the return, though the reason therefor was no longer the same. 6 But the courts have from time to time relaxed the rules in this respect. 7 The certainty required in a return to an alternative writ of mandamus is now defined to be a statement which, upon a fair and reasonable construction, may be called certain without recurring to possible facts which do not appear. 8 It is elsewhere said that certainty to a common intent is sufficient, and it is only necessary that the ordinary mind, disregarding technicality of pleading, may easily appre- hend the allegations ; that it suffices if the answer, without ambiguity or evasion, responds to and denies the assertions of the writ. 9 The return should show a legal reason for not obeying the writ, 10 though it does not answer the sup- 1 Long's Case, 5 Coke, 121. Tarver, 21 Ala. 661 ; Harwood v. 2 1 Chit. PI. 257 ; King v. Lyme Marshall, 10 Md. 451. Regis (Mayor), Doug. 144; Candee, 8 King v. Lyme Regis (Mayor), Ex parte, 48 Ala. 386; Soc. for Doug. 144; Candee, Ex parte, 48 Visit, v. Com., 52 Pa. St 125. Ala. 386 ; Soc. for Visit, v. Com. 52 3 Prospect Brewing Co. 's Petition, Pa St. 125; Com. v. Allegheny Co. 127 Pa. St. 523 ; Harwood v. Mar- (Com'rs), 32 Pa. St 218. If the re- shall, 10 Md. 451 ; King v. Abingdon turn is certain on its face the court (Mayor), 1 L. Raym. 559; 12 Mod. cannot intend facts inconsistent 401 ; 2 Salk. 431. with it in order to make it bad. 4 King v. Lyme Regis (Mayor), King v. Lyme Regis (Mayor), supra. Doug. 144. 9 Central, etc. Co. v. Com., 114 Pa. 5 1 Chit. PI. 257. St. 592. 6 Lord Mansfield in King v. Lyme i« King v. York (Archb.), 6 T. R. Regis (Mayor), Doug. 144; Q. v. 490; Springfield v. Hampden (Co. Pomfret (Mayor), 10 Mod. 107. Com'rs), 10 Pick. 59. 'Tallapoosa (Com'rs' Court) v. § 274.] PLEADINGS AND PRACTICE. 33Q posal of the writ. 1 Trie return must deny the allegations of the writ or show other facts sufficient to defeat the claim. 2 "When the writ is traversed, the facts must be positively and directly denied, 3 and the denial must be sin- gle and special as to any allegations intended to be contro- verted. 4 A general denial in a return is a nullity at com- mon law. 5 TVhen any new matters are relied upon as a defense to the writ, the return must positively, clearly, spe- cifically and distinctly set out the facts relative thereto, 6 so that the relator may be able to traverse them, 7 and the court may be enabled to see at once whether, if established, they justify a disobedience of the writ. 8 Every plea must have convenient certainty as to time, place and persons. 9 The return must be good, as tested by the ordinary rules of pleading. 10 When the respondent in his return sets forth matter in abatement and also facts in defense on the merits and asks judgment on the merits, he waives his plea in abatement. 11 Nothing will be intended in a return. 12 It has been held that presumption and intendment, so far as they so, must be in favor of a return ; 13 but if the return does i Rex v. Welbeck (Inhab.), Stra. ' People v. Ohio Grove Town, 51 1143. IU. 191. 2 Commercial Bank v. Canal 8 Com. v. Allegheny (Com'rs), 37 Com'rs, 10 Wend. 25 ; Levy v. Ing- Pa. St 277 ; Talapoosa (Com'rs' lish, 4 Ark. 65 ; Canova v. State, 18 Court) v. Tarver, 21 Ala. 661 ; State Fla. 512 ; State v. State Bd. Health, v. Jones, 10 Iowa, 65 ; Polk Co. 103 Mo. 22. Com'rs v. Johnson, 21 Fla. 578 ; 3 Canova v. State, 18 Fla. 512 ; Woodruff v. New York, etc. R R, Levy v. Inglish, 4 Ark. 65 ; United 59 Conn. 63. States v. Bayard, 16 Dist. Col. 428. 9Gorgas v. Blackburn, 14 Ohio, 252. 4 State v. Williams, 96 Mo. 13; "People v. Baker, 35 Barb. 105; Sansom v. Mercer, 68 Tex. 488. Silver v. People, 45 111. 224 ; Potts v. & Sansom v. Mercer, 68 Tex. 488. State, 75 Ind. 336 ; Chance v. Tem- It seems to be allowed in Indiana, pie, 1 Iowa, 179. probably in conformity with plead- " Silver v. People, 45 111. 224. Con- ings in other suits. Bowers v. Tay- tra, State v. Jennings, 56 Wis. 113 ; lor, 127 Ind. 272. State v. Smith (Mo. 1891;, 15 S. W. e Harwood v. Marshall. 10 Md 451 ; Rep. 614. Commercial Bank v. Canal Com'rs, 12 3 Stephen's Nisi Prius, 2326; .10 Wend. 25 ; State v. Trammel (Mo., King v. Bristol, 1 Show. 288. Nov. 9, 1891), 17 S. W. Rep. 502. is Springfield v. Hampden (Co. Com'rs), 10 Pick 59. 34:0 PLEADINGS AND PKACTICE. [§ 275. not answer the important facts alleged in the writ, then every intendment is made against it. 1 The return is con- strued most strongly against the pleader. 2 Allegations in the writ, not denied, nor confessed and avoided, are taken as true. 3 Where officers were called upon to show cause why they refused to approve a bond given to procure a license to sell liquor, and in their answer they declined to state their reasons for non-action, it was considered to be fair to assume that they acted arbitrarily and without reason. 4 The respondent is called upon to answer to the writ, and he must confine his traverses to the statements therein contained. 5 He cannot answer the writ by his legal inferences from facts not stated. The court has a right to know what the facts are, that it may judge whether the legal inferences are well drawn. 6 § 275. Certainty required in a return to a writ to re- store a party removed from office or membership in a corporation. — When to a mandamus proceeding to restore a person removed from an office or membership in a cor- poration, an amotion is returned, the return must set out all the necessary facts precisely to show that the person was removed in a legal and proper manner and for a legal cause. It is not sufficient to return conclusions. All the necessary facts must be precisely returned, that the court may be able to judge of the sufficiency of the proceeding, both as to cause and form of proceeding. 7 All such facts must be set forth distinctly and certainly, not argumenta- tively, inferentially or evasively. 8 The return must show that the relator had notice to appear and defend himself, 9 and 1 People v. Kilduflf, 15 111. 492; 5 Chance v. Temple, 1 Iowa, 179. People v. Ohio Grove Town, 51 111. 6 Com. v. Pittsburgh, 34 Pa. St. 191. 496. 2 Gorgas v. Blackburn, 14 Ohio, 7 Rex v. Liverpool (Town), Burr. 252. 723 ; Buller's Nisi Prius, 201 ; Com. s State v. Lean, 9 Wis. 279 ; Rex v. German Society, 15 Pa. St. 251. v. Maiden (Bailiffs), 2 Salk. 431. 8 Society v. Com., 52 Pa St. 125. 4 Amperse v. Kalamazoo, 59 Mich. 9 Com. v. German Society, 15 Pa. 7a St 251. § 275.] PLEADINGS AND PRACTICE. 341 such notice should have summoned him to answer a par- ticular charge. 1 The return should show all the proceed- ngs attending the amotion. 2 If the cause of the removal is not shown by the return, the decision removing the re- lator will be reversed. 3 A return, that the relator was removed for a violation of duty or for disobeying the orders or laws, is too general ; it should specify the charges or the particular orders or laws which were disobeyed. 4 It must be stated that the offense was found after a formal investi- gation, and must not rest on inference alone. 5 A return, that the relator was tried and convicted of the charges ac- cording to the constitution and by-laws, is not sufficient without showing that the association took proofs. 6 It must also appear in the return that the proceedings were con- ducted before an assembly of the proper persons which was duly held. 7 When the meeting was not provided for by the charter or by-laws of the corporation, it should be shown in the return that a special, or at least a general, notice was given to each individual member. 8 Since the power to re- move a member exists prima facie as a matter of law in the corporation at large, it is not necessary to allege that the corporation has such power, but such power exists in a part of the corporation only by charter or prescription, and its existence must appear by the return, in case the amotion was made by such part of the corporation. 9 Where public officers were removed from office, it was held that the record of the board which made the removal must incorporate therein the charges and the substance of the evidence, or 1 Rex v. Liverpool (Town), Burr. 6 Society for Visitation v. Com., 723. 52 Pa. St 125. 2 Com. v. Guardians of Poor, 6 7 Com. v. German Society, 15 Pa S. & R 469. St 251. 3 State v. "Watertown (Com. 8 Rex v. Liverpool (Town), Burr. Coun.), 9 Wis. 254. 723. 4 Com. v. Guardians of Poor, 6 9 King v. Lyme Regis (Mayor), S. & R. 469 ; King v. Doncaster Doug. 144 ; Buller's Nisi Prius, 201 ; (Mayor), 2 L. Raym. 1564. Rex v. Doncaster (Mayor), Say. 37. 5 Schweiger v. Society, 13 Phila. 113. 342 PLEADINGS AND PRACTICE. [§ 276. their action would be overruled. 1 The cause of expulsion must be such as the corporation can legally act upon and such as warrants its decision. 2 "When, however, the trial and sentence have been regularly conducted, the sentence of the society cannot be inquired into collaterally, nor can the merits of the expulsion be re-examined. 3 § 276. A return is sufficient which follows the sugges- tions of the writ. — A return which follows the suggestions of the writ is considered to be sufficient. 4 To the statement in the writ that A. was on Easter-week chosen a church- warden, and, to the order to swear him into office, a return that A. was not elected a church-warden on Easter-week, was held to be sufficient. 5 To a mandamus to swear and admit A. as a church-warden, which stated that he had been duly nominated, elected and chosen, it sufficed to return that he was not duly elected. 6 To a mandamus to restore a person to the office of sexton, a return was made that he was not duly elected and that the respondents had the right to remove him, and had removed him. The return was con- sidered to be consistent, because he was in the possession of the office, whether duly elected or not, and the respond- ents had actually removed him. 7 To a mandamus to restore the plaintiff as an attorney in the corporation, which sug- gests an amotion by the respondents or by some of them, a return that he was not removed by them or by any of them was considered to be good, though he might have been re- moved by their predecessors or by other parties. 8 To a mandamus to admit and swear A. into an office, a return that the respondents had power to examine whether the party elected was a fit person for the office, and that they had so examined and decided that A. was not a fit person, 1 Geter v. Com'rs, 1 Bay, 354 ; 5 Rex v. Penrice, Stra. 1235. Singleton v. Com'rs, 2 Bay, 105. « King v. Williams, 8 B. & O. 681. 2 Rex v. Liverpool (Town), Burr. ^ Rex v. Taunton (Church-war- 723 ; ante, § 168. dens), Cowp. 413. 3 Soc. for Visitation v. Com., 52 8 King v. Colchester (Town), 2 Pa. St 125. Keb. 188. 4 Wright v. Fawcett, Burr. 2041. §§ 277, 278.] PLEADINGS AND PRACTICE. 343 was held to be sufficient, and they were not required to give their reasons for their action. 1 § 277. Several defenses may be stated in a return. — A return need not be single, but may contain as many pleas or defenses to all or to parts of the writ as the re- spondent may wish to insert, provided they be consistent with each other. 2 If any of the pleas or defenses are incon- sistent with each other, the return is defective and will be quashed, since the court knows not which to believe, 3 unless some of such defenses are bad in point of law, in which case the court may quash the bad defenses and send the good ones to trial, if the remaining defenses are not incon- sistent with each other. 4 If the return consists of several independent matters, consistent with each other, a part of which are in law good defenses and a part are bad defenses, the court will quash only the bad defenses and will require the prosecutor to plead to or traverse the others. 5 § 278. Pendency of other litigation pleaded in abate- ment. — The pendency of civil suits involving the same principles and issues are not considered to be a bar to a mandamus proceeding, since the latter is a high prerogative writ in the name of the sovereign. 6 The pendency of an- other mandamus proceeding, wherein the parties and the questions involved are the same, may be pleaded in abate- ment. In such matters the rule in civil actions is applica- ble 7 . The reason of the rule is that such subsequent pro- 1 King v. London (Mayor), 3 B. & 5 D. & E. 66 ; Q. v. Pomf ret (Mayor), Ad. 255. 10 Mod. 107. 2 Candee, Ex parte, 48 Ala. 386; *Reg. v. Norwich, 2 Salk. 436, n. State v. Moss, 35 Mo. Ap. 441 ; Reg. 5 King v. Cambridge (Mayor), 2 v. Norwich (Mayor), 2 Salk. 436; Term, 456 ; Legg v. Annapolis (City), King v. London (Mayor), 3 B. & Ad. 42 Md. 203 ; Selma, etc. R R, Ex 255 ; "Wright v. Fawcett, Burr. 2041. parte, 46 Ala. 230. 3 Reg. v. Norwich (Mayor), 2 6 Calaveras Co. v. Brockway, 30 Salk. 436; L Raym. 1244; Candee, CaL 325; State v. Moss, 35 Mo. Ap. Ex parte, 48 Ala. 386 ; King v. Lon- 441. don (Mayor), 9 B. & C. 1 ; King v. 7 State v. Sumter Co. Com'rs, 20 Cambridge (Mayor), 2 Term, 456 ; Fla. 859. King v. York (Mayor), 5 Term, 66 ; o4i PLEADINGS AND PRACTICE. [§ 279. ceeding is unnecessary, and is therefore deemed vexatious and oppressive ; accordingly, where the second writ is not deemed unnecessary, the rule will not be applied. A writ to compel a county treasurer to pay over the school funds to the proper officer was allowed, though the pendency of a prior mandamus to the same effect was pleaded. The first proceeding was tied up by an appeal, which could not be obtained here, since the writ was applied for in the high- est court, and the public schools could not be kept open without the money, so the court, deeming the second writ to be necessary, ordered its issuance. 1 Where alternative writs had been granted, upon a showing that there were reasonable grounds of suspicion that the parties did not in- tend to execute such writs, or that they could not execute them effectually and legally, the courts granted cross or concurrent writs at the application of the parties who were interested in the matter. 2 The plea has been overruled, where, though both of the proceedings were instituted practically for the same object, the relators were different — in one case the district attorney appearing, and in the other private parties. 3 A plea that a prior mandamus pro- ceeding, involving the same facts, was quashed, affords no excuse nor justification for refusal to obey the writ, since it does not contain the elements of a res adjudicata or of a lis pendens* § 279. Pleas puis darrein continuance. — Facts which have occurred since the issuing of the alternative writ of mandamus may be pleaded in the return in bar of the per- emptory writ, 5 but facts which occur after issue joined should be set up by plea puis darrein continuance or some similar pleading, else they will not be received in evidence. 6 1 State v. Dougherty, 45 Mo. 294. U. S. 480 ; State v. McCullough, 3 2 Reg. v. Wigan (Corp.), Burr. 782 ; Nev. 202. The contrary was held in Rex v. Haslemere, Sayer, 106. State v. Cole, 25 Neb. 342, wherein 3 Foote v. Myers, 60 Miss. 790. a demurrer to a supplemental an- 4 State v. Moss, 35 Mo. Ap. 441. swer was sustained, because the 5 State v. Weeks, 93 Mo. 499. issues must be determined as they 6 Thompson v. United States, 103 existed when the suit was begun or §§ 2S0, 281.] PLEADINGS AND PRACTICE. 345 § 280. Positiveness of allegation required in a return. In conformity with the requirement that the allegations in the return must be positive and certain, the allegations therein contained cannot be stated to be founded on infor- mation and belief. 1 The allegations contained in the writ also cannot be denied on information and belief, 2 and such a denial is considered not to put in issue the facts stated by the relator, but to admit them. 3 Where the respond- ent is required to swear to his plea, he should not be con- fined to pleading matters which are within his own personal knowledge, but such statement as shows his good faith, and which is as positive as is within his power, should be accepted. 4 Though the mandatory part of the writ may be very general, yet the return must be very minute in showing why the respondent has not obeyed the order, 5 and it should contain positive allegations of fact and not mere inferences from facts. 6 § 281. Instances of returns which are adjudged to he insufficient. — Eeturns have been considered to be insuffi- cient : to a mandamus to admit one to be clerk of the city, a return that he had not taken the oath according to the statute before the mayor, when it might have been taken before two justices; 7 to a mandamus to select two papers of opposite politics in which to publish the laws, a return alleging that a selection had been made, which failed to aver compliance with one provision of the law, and averred an equivocal compliance with another provision ; 8 to a man- tle issues were joined. Where a 3 People v. Fulton Co. (Sup'rs), 53 mandamus was sought to compel Hun, 254; State v. Williams 96 the filing and approval of a bond, Mo. 13 ; State v. Trammel (Mo., a subsequent matter occurring after Nov. 9, 1891), 17 S. W. Rep.* 502. the refusal to approve the bond was 4 State v. Sumter Co. Com'rs, 22 considered to be foreign and irrele- Fla. 1. vant Candee, Ex parte, 48 Ala 386. 5 Reg. v. Southampton (Com'rs), 30 i State v. Sumter Co. Com'rs, 22 L. J. Q. B. 244. Y\ a . i. 6 State v. Hawes, 43 Ohio St 16. - People v. Brooklyn (Com. Coun- ~ Le Roy v. Slatford, 5 Mod. 316. cil), 77 N. Y. 503. Contra, People 8p e0 ple v. Sullivan Co. (Sup'rs), v. Alameda Co. (Sup'rs), 45 CaL 56 N. Y. 249. 395. 346 PLEADINGS AND PRACTICE. [§ 281. damns to allow the relator to act as superintendent of a foreign corporation, a return alleging that relator's appoint- ment was not legally made, without showing the defects; l to a mandamus to sign a bill of exceptions, a return that the writ does not state the exceptions in the manner and form in which they were taken, without specifying the er- rors ; 2 to a mandamus to restore A. as a capital burgess, a return that he wrote a scandalous letter to an alderman which amounted to a libel, and, being charged therewith at a court afterward holden, he assented to being turned out, etc., because if he resigned it should have so alleged, and that they accepted his resignation ; 3 to a mandamus to re- store the relator to the place of an alderman, a return that he was removed by thirty of the common council in the council chamber assembled, because it did not aver that they were assembled as a common council ; 4 to a mandamus to a justice of the peace to send up the papers on an appeal, a return that his fees had not been paid or tendered prior to the service of the writ, since they may have been paid since ; 5 to a mandamus to a treasurer to pay a warrant, a return that he had no money when served with the writ, and that he has none now, because it does not state that he had no money when payment was demanded on several occasions ; 6 to a mandamus to levy a specific tax to pay a certain judgment, a return that they had levied a tax of one per cent, to pay the judgment and other claims, and that that tax was sufficient to pay them all, because it did not show the whole act constituting the levy, and because it stated that the tax was levied to pay other claims also ; 7 to a mandamus to restore the relator to the office of a burgess, a return that he was duly elected, but was re- moved, and that he had not taken the sacrament within a year prior to his election, which was therefore null and 1 State v. McCullough, 3 Nev. 202. 6 People v. Harris, 9 Cal. 571. 2 Reichenbach v. Raddach, 121 6 Hendricks v. Johnson, 45 Miss. Pa St. 18. 644 3 Reg. v. Lane, 2 L. Raym. 1304. ^ Benbow v. Iowa City, 7 Wall. 313. * King v. Taylor, 3 Salt 231. § 282.] PLEADINGS AND PRACTICE. 347 void, because the two defenses were inconsistent ; l to a man- damus to swear into office A. and B. dehite elected church- wardens, a return that they were not duly elected, because it did not state that neither was duly elected, it being their duty to swear in either, if he was elected ; 2 to a mandamus to choose one of two elected to serve as mayor, a return that thev were elected, but had not taken the sacrament, which rendered the election void, because there might have been a subsequent election. 3 If the writ set forth all the proceedings and state that by reason thereof A. was elected, it is a bad return to say that A. was not elected. The re- spondent should traverse one of the facts alleged. 4 Where, instead of making a return, the respondent filed a bill, ask- ing for an injunction to restrain the relator from further prosecuting his mandamus proceeding, the court refused to take the bill as a return, and properly ordered the respond- ent to make a return. 5 § 282. Who shall make the return. — The return to the alternative writ must be made by those to whom it is di- rected, and if other parties make the return they are liable to an action on the case, and are also punishable by attach- ment for contempt of court. 6 When the writ is directed to a corporation or to a board, it should in form be the return of such corporation or board. 7 A return by individual members of a board is not a return by the board, and the court may order it to be withdrawn, 8 or to be stricken from the files. 9 A return to a writ of mandamus, directed to a !Q. v. Pomfret (Mayor), 10 Mod. 6 State v. Pennsylvania R. R, 41 107. Reg. v. Norwich (Mayor), 2 N. J. L. 250 ; Dinwiddie Justices v. Salk. 436, L. Raym. 1244, is almost Chesterfield Justices, 5 Call, 556. a similar case. 7 People v. San Francisco (Sup'rs), 2Regina v. Guise, 2 L. Raym. 27 CaL 655; King v. The Baily, 1 1008 ; 3 Salk. 88 ; 6 Mod. 89. Keb. 33 ; King v. St Andrew (Gov. 3 Rex v. Abingdon (Mayor), 2 of Poor), 7 A. & E. 281. Salk. 432 ; IK Raym. 559. 8 McCoy v. Harnett Co. (Just), 4 4 King v. York (Mayor), 5 Term, Jones, 180. 66. 9 People v. San Francisco (Sup'rs), 5 Neuse, etc Co. v. New Berne 27 CaL 655 ; Clarke Co. (Com'rs) v. (Com'rs), 6 Jones, 204. State, 61 Ind. 75. When the writ is 348 PLEADINGS AND PRACTICE. [§ 283. county court, cannot be made by its attorney. 1 A majority of a board can make the return in the name of the board. The proper proceeding is for the board to convene and ap- point one of their body to make the proper affidavit and do all things necessary, they agreeing to the return to be made. 2 A return for a municipal corporation should be made by the mayor with the consent of a majority of the burgesses. 3 If upon a consultation a majority of the burgesses be against the views of the mayor and make return in his name, it shall be taken as his return unless he disavow it. 4 Where a writ of mandamus was directed to the mayor, bailiffs and bur- gesses, and it was asserted that the return, which had been filed in their joint names, was made by the mayor and a minority of the bailiffs and burgesses, the court refused to try the question on affidavits, but allowed the parties, if they desired, to file an information against the mayor. 5 When the board cannot agree upon their return and there is an equality of votes, in the quaint language of the old books, they must agree, or else they shall be brought up as in contempt and laid by the heels till they do agree. 6 If there are two returns, each purporting to be the return of the board, the court may ascertain which is the return of the majority. 7 § 283. Verification of the return. — At common law the respondent was not required to verify his return to the alternative writ. 8 The court may, of its own accord, require the respondent to swear to his return. 9 Such an order has directed to each member of the 5 Rex v. Abingdon (Mayor), 2 Salk. board by name, as well as to the 431. board, under the New York statute 6 Reg. v. Chapman, 6 Mod. 152. they may answer jointly or sev- '' People v. San Francisco (Sup'rs), erally. People v. Police Board, 46 27 Cal. 655. Hun. 296. 8 Burgess of Devises, 2 Keb. 725 1 Dinwiddie (Just.) v. Chesterfield State v. Wickham, 65 Mo. 634 (Just), 5 Call, 556. State v. Edwards, 11 Mo. Ap. 152 2 McCoy v. Hartnett Co. (Just), 4 State v. Morris, 103 Ind. 161 ; Talla- Jones, 180 ; State v. McMillan, 8 poosa (Com'rs' Court) v. Tarver, 21 Jones, 174. Ala. 661. 3 King v. Abingdon, 12 Mod. 308. 9 Audly's Case, 1 Latch, 123. 4 Reg. v. Chapman, 6 Mod. 152. §§ 2S4, 285.] PLEADINGS AND PKACTICE. 34:9 been issued where the court suspected that the return -was false. 1 The court will grant such an order at its own dis- cretion, and is not bound to do so at the petition of the re- lator. 2 In some states the law or the rule of court requires that the return be verified. 3 § 281. Treatment of a return which is evasive or friv- olous. — A return which is evasive, frivolous, or ambiguous, will not be tolerated. 4 Where such a return is presented, the court may disregard it, 8 or quash it, 6 or strike it off the files on motion, 7 or issue a peremptory writ. 8 When the return is utterly inapplicable and absurd, or it appears to be frivolous and to have been purposely made to avoid the justice of the court, the court may also grant a rule on the respond- ent to show cause why an attachment should not issue against him for contempt of court. 9 If, however, a return contains or sets up any sufficient reason for refusing the mandamus, it should not be quashed as a whole, though in other respects it be evasive and irresponsive. 10 If the facts averred in the return may be true consistently with the sug- gestion of the writ, then the return is vicious. 11 § 285. Demurrer to return, and rules governing it.— The return may be objected to by a motion to quash or by a demurrer. The English courts, since the statute of 9 Anne, chapter 20, did not provide for a demurrer to the return, did not allow a demurrer to be filed, but attained the same end by a concilium. At present, under the statute of 6 and 7 Yic- iManaton's Case, Ray. 365. Q. v. Poole (Mayor), 1 Q. B. 616; i Burgess of Devises, 2 Keb. 725. Q. v. St. Andrews (Gov. etc.), 10 A. 3 State v. Sumter Co. Coui'rs, 22 & E. 736 ; Harwood v. Marshall, 10 Fla. 1 ; Chance v. Temple, 1 Iowa, Md. 451. 179 ; People v. Fulton Co. (Sup'rs), 53 7 Q. v. Payn, 11 A. & E. 955. Hun, 254; Com. v. Henry. 49 Pa. 8 Williamsburgh (Trustees), In re, St. 530 ; Com. v. Philadelphia 1 Barb. 34. (Com'rs), 1 Whart. 1. 9 King v. Robinson, 8 Mod. 336; *State v. Jones, 10 Iowa, 65; Q. v. Poole (Mayor), 1 Q. B. 616. Com. v. Pittsburg (Sel. Council), 34 10 Legg v. Annapolis (City), 42 Md. Pa. St 496. 203. 5 Sansoin v. Mercer, 68 Tex. 4S8. n Harwood v. Mai-shall, 10 Md. 6 Com. v. Pittsburg, 34 Pa. St 496 ; 451. 350 PLEADINGS AND PRACTICE. [§ 285. toria, a demurrer may be filed to a return. The American courts, which expressly or impliedly adopted the statute of 9 Anne, departed from the English precedents, and allowed the relator to file a demurrer to the return. 1 Some of the American courts did not regard that statute, which was en- acted a hundred years later than the period to which the common law of England, so far as applicable, is generally adopted as authoritative in this country, 2 and they adopted the strict rules of the early English decisions ; but it is be- lieved that at present all of the American courts, either by virtue of statute or rule of court, allow a demurrer to be filed to the return. 3 A motion for a peremptory writ on the return has been allowed, but such motion is merely a sub- stitute for a general demurrer, 4 admitting the truth of the allegations contained in the return, but denying their suffi- ciency in law. 5 Objections, which are required to be taken by special demurrer, or by motion to strike out, will be dis- regarded on such a motion. 6 On the argument of such a motion, the relator is entitled to the benefit of all the ad- missions in the return, but he cannot insist upon facts al- leged by him in his pleadings which are not admitted. 7 If any material averment of the petition or alternative writ i Barney v. State, 42 Md. 480 ; Clark County, 95 U. S. 769 ; Barney Silverthorne v. Warren R R., 33 v. State, 42 Md. 480 ; Vail v. People, N. J. L. 173 ; New Haven, etc. R. R. 1 Wend. 38 ; Commercial Bank v. v. State, 44 Conn. 376 ; State v. Canal Commissioners, 10 Wend. 2.j. Ryan, 2 Mo. Ap. 303 ; State v. Su- * State v. Newman, 91 Mo. 445 ; pervisors (Board), 64 Wis. 218. State v. Jacksonville (Mayor), 22 2 The common law of England is Fla. 21 ; State v. Marks, 74 Tenn. generally accepted as authoritative 12 ; Ward v. Flood, 48 Cal. 36 ; Peo- here, as it existed prior to the fourth pie v. Fairman, 91 N. Y. 385 ; State year of the reign of James I. v. Smith. 104 Mo. 661. (March 23, 1606). The statute of 9 5 People v. Westchester Co. (Su- Anne, chapter 20, was enacted in pervisors), 73 N. Y. 173 ; Attala Co. 1710. (Board Police) v. Grant, 9 Sm. & Mar. 3 People v. Baker, 35 Barb. 105; 77; State v. Newman, 91 Mo. 445. Morgan v. Fleming, 24 W. Ya.. 186; 6 People v. San Francisco (Sup'rs), Phoenix Iron Co. v. Com., 11-3 Pa. 27 Cal. 655. St. 563; Com V.Allegheny (Com'rs), ? People v - Pritchard, 19 Mich. 32 Pa St 218; United States v. 470. §§ 2S6, 2S7.] PLEADINGS AND PEACTICE. 351 is denied, a peremptory writ will not issue on the plead- ings. 1 The overruling of a motion for a peremptory writ of mandamus on the return is ordinarily not a final judg- ment, but merely a refusal of the writ till a trial on the merits. 2 Where a mandamus proceeding is allowed to stand on the petition and answer, 3 or on the petition and answer to show cause, 4 which is equivalent to a motion for a per- emptory writ on the return, the allegations of the answer, not being; controverted, must be taken as true. § 286. Subject continued. — The same rules are applica- ble to a demurrer filed in a mandamus proceeding as when filed in any other legal proceeding. The demurrer to a return confesses the allegations of the return and every material allegation of the writ not denied or confessed and avoided by the return. 5 It also runs back to the first de- fective pleading, and though the return be defective, yet judgment will be rendered against the party who made the first error in substance in his pleading. 6 When on demurrer a part of the return is found to be bad and a part to be good, the judgment thereon must be for the respondent, 7 but the relator may afterwards have leave to traverse the good part of the return if necessary. 8 A motion for a peremptory writ on the return, being merely a substitute for a general demurrer, is subject to the same rules. § 287. Amendment of return. — If the motion to quash, or the demurrer to the return, is sustained, the respondent, if he so desires, will under the present practice be allowed to amend his return. 9 i People v. Alameda Co. (Sup'rs), 47 Wis. 670 ; Commercial Bank v. 45 Cal. 395. Canal Com'rs, 10 Wend. 25 ; Mor- 2 Booth v. Strippleman, 61 Tex. 378. gan v. Fleming, 24 W. Va. 186 ; Doo- 3Aplin v. Midland Co. (Sup'rs), little v. Co. Court, 28 W. Va. 158; 84 Mich. 121. People v. McCormick, 106 111. 184 ; 4 Farnsworth v. Kalkaska Co., 56 People v. Hatch, 33 111. 9. Mich. 640; Murphy v. Reeder T. 7 Q. v. New Windsor (Mayor), 7 Treas., 56 Mich. 505. A. & E. (N. S.) 908. 5 State v. Lean, 9 Wis. 279. 8 Q. v. North Midland R. R, 11 A « People v. Baker, 35 Barb. 105; & E. 955; Q. v. Dover (Mayor), 11 People v. Fulton (Sup'rs), 14 Barb. A. & E. (N. S.) 260. 52 ; State v. Milwaukee Ch. Com., 9 See § 294. 352 TLEADINGS AND PKACTICE. [§§ 2SS, 2S9. § 288. Reply to the return. — In case the demurrer to the return is overruled, the decisions of the American courts are not uniform on the question whether the relator is en- titled to put in a reply traversing the allegations of the return. Most of the courts, though the matter is often reg- ulated by statute, allow the relator to put in a reply. 1 It has also been held to be discretionary with the court, and that such action should be allowed when justice seems to demand it, but not otherwise. 2 The reply should traverse or confess and avoid the facts set up in the return. 3 Such traverse is only necessary when the return makes an independent aver- ment of facts on which the relator wishes to take issue ; if the return is merelv a denial of the allegations contained in the petition or writ, no reply is necessary. 4 The traverse to the return must be single, direct and positive. 5 The object of the reply is to enable the relator to traverse or confess and avoid the return, when it, in the first instance, suffi- ciently answers the writ, and not to repeat material allega- tions previously made which have been left entirely unan- swered. 6 "When by statute the pleadings are confined to the writ and the return, all allegations of new matter con- tained in the return are considered to be traversed. Where the reply is evasive, it may be treated as though it admitted the facts charged. 7 § 289. Reply and subsequent proceedings. — The statute of 9 Anne, chapter 20, provided that the return might be traversed and the proceedings should be continued in the same manner as though it were an action for a false return. This statute has generally been adopted as a part of the law or has been re-enacted in America. 8 The pleadings are regulated by the laws of the states relative to suits in the 1 State v. Jones, 10 Iowa, 65. 5 Harwood v. Marshall, 10 Md. 2 People v. McCormick, 108 111. 451. 184. 6 State v. Lean, 9 Wis. 279. 3 State v. Supervisors (Board), 64 i State v. Newman, 91 Mo. 445. Wis. 218 ; Phoenix Iron Co. v. Com., 8 Fisher v. Charleston, 17 W. Va. 113 Pa. St 563. 595. < State v. Pierce Co. (Sup'rs), 71 Wis. 321. § 290.] PLEADINGS AND PBACTICE. 353 courts, 1 and the rules of pleading applicable to civil suits apply to mandamus proceedings. 2 Where a reply is allowed to the return, 3 if it does not traverse, nor confess and avoid the material facts stated in the return, but takes issue on immaterial questions, it is bad on demurrer. 4 § 290. Trial by jury. — The statute of 9 Anne, chapter 20, provided that the issues of fact in a mandamus pro- ceeding should be tried by a jury. 5 In adopting that statute, the American courts have not considered themselves bound by all of its provisions, and some of the courts, on the theory that a mandamus is intended to be a speedy pro- ceeding, have denied the right of a trial by jury," but gen- erally a trial by jury is allowed in accordance with the provisions of this statute, 7 or because the local statute specially so provides. 8 It has been held that it is discre- tionary with the court whether a jury shall be allowed to pass on the issues of fact. 9 Also by statute the right to a jury trial as to the issues of fact has been confined to certain cases. 10 Appellate courts generally in such cases send the issues of fact to some court of general jurisdiction to be there tried by a jury, with orders to certify the verdict to iln some states the only plead- Inch 382; People v. Bd. Police, 107 ings allowed are the writ and the N. Y. 235 ; Frey v. Michie, 68 Mich. answer. Crans v. Francis, 24 Kan. 323; Thompson v. U. S., 103 U. S. 750 ; Long v. State, 17 Neb. 60. 480 ; Com. v. McCandless, 129 Pa, 2 Silver v. People, 45 I1L 224. St 492 ; Savannah (Mayor) v. State, 3 Maddox v.Graham, 2 Mete. (Ky.) 4 Ga. 26; Noble Co. (Com'rs) v. 56. Hunt, 33 Ohio St. 169. * State v. Eaton, 11 Wis. 29. 8 Weber v. Zimmerman, 23 Md. 5 Q. v. St. Pancras (Directors of 45 ; Maddox v. Graham, 2 Mete. Poor), 7A.&E. 750 ; Shrewsbury v. (Ky.) 56 ; State v. Pierce Co. (Sup'rs), Kynaston, 7 Bro. P. C. 396; Reg. v. 71 Wis. 321 ; State v. Chicago, etc. Fall, 1 Q. B. 636. R. P.. 38 Minn. 281. 6 Castle v. Lawlor, 47 Conn. 340; » State v - Marks, 74 Tenn. 12; State v. Suwannee Co. (Com'rs), 21 State v. Goodfellow, 1 Mo. Ap. 495. Yla. 1. So provided by statute. Chumasero < People v. Bd. Educ, 127 111. 613 ; v. Potts, 1 Mont 242. State v. Burnsville T. Co., 97 Ind. w Roscommon v. Midland Sup'rs, 416; Burnsville T. Co. v. State, 119 49 Mich. 454. 23 O 54 PLEADINGS AND PKACTTCE. [§ 291. such courts. 1 By consent of the parties a jury may be dis- pensed with. 2 In some cases the questions of fact have been referred to a referee for decision. 3 "When, however, there are no issues of fact to be decided, a jury is properly re- fused. 4 § 291. Relator must prove his right to all lie asks for. It is a well-established rule in mandamus proceedings that the relator must prove himself entitled to every claim and to all the redress which he seeks in his writ. If he fails to establish any part of his claim, or if his demand is broader than the provisions of the law, his application will be de- nied in toto. b So if a mandamus is asked against two per- sons, and can only be sustained against one, it will be refused as to both. 6 Some courts, however, have concluded to de- part from the old rule, which was due to the fact that no amendments as to material matters were allowed in such proceedings, and no longer require the relator to prove all of his claims. The} r assert, and very properly, that there should be no difference in this regard between a mandamus and any other proceeding, and that this remedy should be applied rationally. A mandamus to levy a tax to pay high- way orders was granted, though as to some of the orders the relator failed to prove his right to have a tax levied for their payment. 7 A mandamus, granted by a lower court to a city controller to draw his warrant on the city 1 Calaveras Co. v. Brockway, 30 Trustees), 3 A. & E. 535 ; King v. St. Cal. 325 ; People v. Alameda Co. Pancras (Ch. Trustees), 6 A. & E. (Sup'rs), 45 Cal. 395. 314; Q. v. East, etc. Docks, 2 El. & 2 Milliken v. Weatherford (City), Bl. 466 ; State v. Kansas City, etc. 54 Tex. 388 ; People v. Finger, 24 R. R, 77 Mo. 143 ; State v. Einstein, Barb. 341 ; Calaveras (County) v- 46 N. J. L. 479 ; People v. Baker. 35 Brockway, 30 Cal. 325. Barb. 105 ; Chance v. Temple, 1 3 State v. Columbia, 22 S. C. Iowa, 179; Fisher v. Charleston 582: Newman v. Scott Co. (Just), (Mayor), 17 W. Va. 628; Kemererv. 1 Heisk. 787 ; Rice, etc. Co. v. Wor- State, 7 Neb. 130. cester (City), 130 Mass. 575. « People v. Yates, 40 111. 126. See 4 Lyman v. Martin, 2 Utah, 136. § 234a. 5 Reg. v. Tithe Com'rs, 19 L. J. 7 Hosier v. Higgins Town Board, Q. B. 177; King v. St. Pancras (Ch. 45 Mich. 340. § 292.] PLEADINGS AND PRACTICE. 355 treasurer for bills which he had approved, and on the city treasurer to pay such warrants, was dismissed as to the treasurer because he was not in default, but was affirmed as to the controller. 1 Where a writ of mandamus asked for slightly more money than the town treasurer had in his possession, the peremptory writ was issued for the amount he admitted he had on hand, because he claimed to be the custodian of the fund and had refused to pay anything. 2 Where the courts allow the relator to amend his pleadings in substantial matters, 3 the pleader can avoid all disastrous consequences from a variance between his allegations and his proof by obtaining the permission of the court to make the proper amendments. The conduct of the trial of a mandamus proceeding differs in no respect from the trial of any civil action. The matters charged in the alternative writ, or in the petition when the alternative writ is dis- pensed with, which are denied by the respondent, must be proved by the relator; and matters in avoidance alleged in the return, if denied by the relator, must be proved by the respondent. 4 § 292. General rules of practice and of pleading as ap- plicable to mandamus proceedings. — The rules of plead- ing and of practice are considered to be applicable to mandamus proceedings except as to the certainty required in the writ and return, and except as to amendments, and more especially after the proceedings have under the statute of 9 Anne been assimilated to an action for a false return. Such is the drift of the decisions where statutes controlling those questions had not been adopted. The courts have decided that, on failure to prosecute, a nonsuit may be granted, 3 a respondent may have leave to withdraw his re- turn, 6 a new trial may be granted, 7 a motion in arrest of i State v. Mount, 21 La. An. 352. 3 See post, § 294 Under the provisions of a practice 4 Newman, Ex parte, 81 U. S. 152. act a similar decision was rendered. 5 King v. Stafford, 4 T. R. 689. People v. San Francisco (Sup'rs), 27 6 Rex v. Barker, 3 Burr. 1379. Cal. 655. 7Q, v . Manchester (Council), 9 2 People v. Mahoney, 30 Mich. 100. Q. B. 458. 356 PLEADINGS AND PRACTICE. [§ 293. judgment may be allowed, 1 and a judgment non obstante veredicto may be granted. 2 Also, when it is found neces- sary, an alias or pluries peremptory mandamus may be awarded. 3 When on a trial the judgment is for the defend- ants, the judgment should be, it is considered by the court that the defendants go without day and recover of the pe- titioners their costs. 4 § 293. Amendments under the early practice.— Origi- nally great strictness was required in mandamus proceed- ings, and any error was fatal to the party making it. If the relator made a mistake, the proceedings would be dismissed ; if the error was on the part of the respondent, the per- emptory writ would be granted. Mere formal errors, such as a mistake in an affidavit as to the title of the cause or as to the jurat, might be corrected, but no errors of sub- stance could be corrected. 5 The rule was almost universal, that the court would not allow a party to succeed on a second application, who had previously applied for the very same thing without coining properly prepared, when he urged no ground for relief which he might not have urged before. 6 Where a rule on a corporation to show cause why a mandamus should not issue to it was refused, because there had been no demand and refusal, the court refused a new rule to the same effect after a demand and refusal had occurred, stating that it would not have the same applica- tion renewed from time to time. 7 The alternative writ was allowed to be amended at any time before it was trav- ersed, but not afterwards. 8 The court would mould the 1 Pees v. Leeds (Mayor), Stra. 640 ; 4 Tucker v. Iredell (Just.), 1 Jones, People v. Com'rs Highways, 52 III 451 ; State v. Deane, 23 Fla. 121. 498. Contra as against the respond- 5 Q. v. Great Western R. R, 5 Ad. ent. People v. Finger, 24 Barb. 341. & E. (N. S.) 597. 2 Q. v. Stamford (Mayor), 6 Ad. & E. 6 Q. v . Manchester, etc. R R, 8 A. (N. S.) 433 ; Q. v. St. Pancras (Direct- & E. 413, 427 ; Q. v. Great Western ors of Poor), 7 A. & E. 750. Contra, R R, 5 A. & E. (N. S.) 597 ; Q. v. People v. Metrop. Police (Bd.), 26 Pickles, 3 A. & E. (N. S.) 599. N. Y. 316. 7 Thompson, Ex parte, 6 A. & E. 3 People v. Delaware Co. (Sup'rs), (N. S.) 721. 45 N. Y. 196. 8 Reg. v. Clitheroe, 6 Mod. 133; § 294.] PLEADINGS AND PRACTICE. 357 rule to show cause why a mandamus should not issue, 1 but would not mould the alternative writ itself. 2 § 294. Amendments under the present practice.— Of later years this great strictness has been relaxed, which of itself was entirely unnecessary after the statute of 9 Anne, chapter 20. On the argument on a concilium of the valid- ity of the return, the relator, at the suggestion of the court, was allowed to amend the alternative writ by inserting an allegation that the respondent was notified of a certain order and refused to obey it. 3 It is even said that the rule now adopted in England is to allow amendments at any time when such a course will promote justice. 4 In America, either by special statute or by subjecting mandamus pro- ceedings to the general statutes relative to amendments of pleadings, 5 or by the adaptation by the court of the pro- ceedings in mandamus to its ideas of equity, 6 amendments will be granted at any time when such a course will pro- mote justice. 7 But the relator cannot by amendment of his alternative writ substitute a new and wholly different cause of action, since this is contrary to the rules of plead- ino-. 8 Nor is the privilege of amending confined to the relator, but the respondent may avail himself thereof, 9 and King v. Stafford, 4 Term, 689 ; Peo- vin, 11 Wis. 153 ; Meyer v. Dubuque pie v. Baker, 35 Barb. 105 ; Com. v. (City), 43 Iowa, 592 ; State v. Bai- Pittsburgh (SeL Coun.), 34 Pa, St. ley, 7 Iowa, 390 ; State v. Warner, 496. 55 Wis. 271. 1 King v. St Pancras (Ch. Trust- 6 United States v. Union P. R R, ees), 3 A. & E. 535. 4 Dill. 479 ; State v. Gibbs, 13 Fla. 2 King v. St. Pancras (Ch. Trust- 55 ; Lee Co. v. State, 36 Ark. 276 ; ees), 3 A. & E. 535 ; State v. Act State v. Cheraw, etc. R. R, 16 S. C. Board Aldermen, 1 Rich. (N. S.) 30. 524 ; State v. Act. Bd. Aldermen, 1 3 Q. v. Newbury, 1 Q. B. 751, 758. Rich. (N. S.), 30 ; Arberry v. Beav- * Com. v. Pittsburgh (SeL Coun.), ers, 6 Tex. 457 ; Morris v. State, 94 34 Pa. St. 496. Ind. 565 ; School Dist v. Lander- & State v. Milwaukee (City), 22 baugh, 80 Mo. 190. Wis. 397 ; People v. La Grange " Com. v. Pittsburgh (SeL Coun.), (Town Board), 2 Mich. 187 ; State 34 Pa, St. 496 ; State v. Railway v. Baggott, 96 Mo. 63 ; Taylor v. (Assess, of Taxes), 51 N. J. L 279. Moss, 35 Mo. Ap. 470; People v. » Wheeler v. Northern C. I. Co., 10 Baker, 35 Barb. 105 ; State v. Pierce Colo. 583. Co. (Suprs), 71 Wis. 321 ; State v. Sla- 9 State v. Padgett 19 Fla, 518. 358 PLEADINGS AJSTD PEACTICE. [§ 295. it has even been allowed to him after exceptions were filed to his return, 1 after a motion was made to quash his return, 2 and during the argument for a judgment on the verdict, when issue had been taken on an immaterial point. 3 The amendment is optional on the part of the respondent, and he will not be compelled on motion to amend his re- turn. 4 The only exception is, that a peremptory writ of mandamus is not amendable, and the rule is that the per- emptory writ must follow the alternative writ. 5 The al- ternative writ may be properly moulded or amended, and the peremptory writ may be issued in conformity to the amended alternative writ. 6 Where, on appeal from a decree awarding a peremptory mandamus, the decree was ad- judged to be erroneous, the court remanded the cause with permission to the relator to amend his alternative writ, and with directions to issue the peremptory writ if such amendments were made. 7 § 295. All the issues must Ibe disposed of before the peremptory writ will issue. — If on the trial the relator shows that his claims are well founded, and that he is enti- tled to all the remedies he asks, a peremptory mandamus will issue in his favor. The court will not order a peremp- tory writ on a part of the record ; all the issues presented by the return must first be disposed of. 8 Where upon the overruling of the demurrer filed by one of the respondents, the relator was entitled to a peremptory writ of mandamus against him, the court refused to issue it till the return filed by the other respondent had been disposed of. 9 i Springfield v. Hampden (Co. waukee (City), 22 Wis. 397 ; State v. Com'rs), 10 Pick. 59. Baggott, 96 Mo. 63. 2 King v. London Dock Co., 5 A. t State v. Francis, 95 Mo. 44 ; & E. 163, note a. Columbia Co. (Com'rs) v. King, 13 3 State v. School Land Com'rs, 9 Fla. 451. Wis. 200. 8 Q. v. Baldwin, 8 Ad. & E. 947 ; 4 King v. Marriott, 1D.&R 166. Gregg v. Pemberton, 53 CaL 251. 5 See § 260. 9 State v. Bergen (Freeholders), 52 6 State v. Rahway (Assess, of N. J. L. 313. Taxes), 51 N. J. L 279 ; State v. Mil- § 296.] PLEADINGS AND PKACTIOE. 350 § 296. How far the peremptory writ must conform to the alternative. — This is an extraordinary remedy, and the relator is strictly required to prove his claim to every remedy he has asked. The rule has always been that the peremptory writ must conform strictly to the alternative writ, 1 except that the words containing an order to show cause why the writ has not been obeyed should be omitted. 2 If the relator fails to prove that he is entitled to all the rem- edies he asked, the writ will be refused, though he may show that he is entitled to a part of what he asks. 3 The rule, that the peremptory writ must conform strictly to the alternative writ, is correlative to, or a necessary sequence of, the rule, that the relator must prove that he is entitled to all he has asked ; and both rules were established at a time when this writ was looked upon as a high prerogative writ, only to be used in extreme cases, and when the greatest strictness and accuracy of expression were required. Some of the courts have now modified the rule, and are content if the peremptory writ conforms substantially to the alter- native writ. An alternative writ, issued on July 5th, or- dered the holding of an election within forty days thereafter. The peremptory writ, issued on August 1st, commanded the respondents to order an election to be held under the local option law, as in the alternative writ set forth, so soon as 1 State v. Kansas City, etc. R. R, 2 State v. Jolinson Co. (Judge), 12 77 Mo. 143 ; School District v. Lau- Iowa, 237. derbaugh. 80 Mo. 190; State v. 3 state v. Union (Township), 43 Cheraw, etc. R R, 16 S. C. 524 ; N. J. L. 518 ; Texas, etc. R. R v. Fisher v. Charleston (Mayor), 17 Jarvis, 80 Tex. 456; 15 S. W. Rep. W. Va. 6*28; State v. Holladay, 65 30; State v. Field, 37 Mo. Ap. 83. Mo. 76 ; State v. Beloit (Sup'rs), 20 In Ohio by virtue of statutory Wis. 79 ; State Board of Educ. v. provision a peremptory writ may West Point, 50 Miss. 638 ; State v. issue to enforce some of the acts Johnson Co. (Board of Equal.), 10 called for in the mandatory part Iowa, 157 ; State v. Gibbs, 13 Fla. of the alternative writ, unless there 55 ; State v. Bergen (Freeholders), be such dependence between the 52 N. J. L. 313 ; Chance v. Temple, various things asked for that all 1 Iowa, 179 ; Q. v. East, etc. Docks, must stand or fall together. State 2 El. & Bl. 466. v. Crites (Ohio, Feb. 24, 1891), 26 N. E. Rep. 1052. 360 PLEADINGS AND PEACTIOE. [§ 297. the same could be held under said law. The two writs were considered to be substantially the same. 1 The inser- tion in the peremptory writ of the title of the statute under which the respondent was required to act, which was omitted in the alternative writ, w T as considered to be no variance, since the law implied it. 2 The peremptory writ may vary the details as to the mode of doing the act re- quired, provided it does not materially enlarge the substan- tial terms of the alternative writ, nor exceed them beyond adding merely incidental requirements. 3 Where the per- emptory writ was more specific than the alternative writ in setting out a form of preferred stock to be issued, it was held that the two writs substantially agreed. 4 It has been held that the court may grant the peremptory writ in any form consistent with the case made by the complaint and embraced within the issues. 5 So if more than one act is re- quired in order to obey the peremptory writ, the court may continue the cause from time to time, till all such acts are performed, and all further orders deemed necessary and subsequently made by the court have been obeyed. 6 § 297. When the peremptory writ will l)e gnashed or disobedience of it excused. — Strictly there is no return to a peremptory writ of mandamus, but a certificate of per- fect obedience and due execution of the writ, 7 w T hich is made to the court at the time designated in the peremptory writ. The court may, however, on application, grant a rule nisi to show cause w 7 hy the peremptory writ should not be quashed. 8 Where the court was convinced that the officers 1 State v. Schmitz, 36 Mo. Ap. 550. Chatham Co. (Board of Com'rs), 66 2 State v. Rahway (Assess, of N. C. 486; State v. Johnson Co. Tax^s), 51 N. J. L. 279. (Judge), 12 Iowa, 237; Reg. v. Hud- 3 People v. Dutchess, etc R. R, son, 9 Jur. 345 ; Weber v. Zimmer- 58 N. Y. 152. man, 23 Md. 45 ; People v. Barnett 4 State v. Cheraw, etc. R R, 16 (Sup'rs), 91 111. 422 ; State v. Smith, S. C. 524. 9 Iowa, 334 ; Com. v. Taylor, 36 5 State v. Weld, 39 Minn. 426. Pa. St. 263 ; Drew v. McLin, 16 Fla. 6 Palmer v. Jones, 49 Iowa, 405. 17. 7 3 Black. Com 110; Q. v. Poole 8 Reg. v. Hudson, 9 Jur. 345. (Mayor), 1 Q. B. 616; Sedberry v. § 297.] PLEADINGS AND PKACTICE. 361 had not the legal power to do the act commanded, it granted the motion to quash the peremptory writ. 1 The peremp- tory writ may also be quashed on motion, if it is in excess of the alternative writ or of the rule made absolute on cause shown, or if the court is convinced on any ground that it ought not to have been issued. 2 It may be quashed, if it was improvidently, 3 prematurely, improperly or unneces- sarily issued, or if on its face it is bad in substance, or if it be impossible to obey it, 4 or if after its issuance it has be- come improper or impossible to do the act commanded. 5 When the peremptory writ has been unfairly obtained, as by a violation of an agreement to stay the proceedings, it will be set aside on motion. 6 Should a statute be enacted after the issuance of the peremptory writ forbidding obedi- ence or making obedience impossible, such new matter will of necessity be a sufficient return if the statute be constitu- tional. 7 All that is necessary in the peremptory writ is, that the order describe the act to be done with reasonable certainty, that the defendant may know what to do. If the defendant in good faith desires to comply with the order, but is unable to do so from the uncertainty of the mandate, the court will no doubt relieve him. 8 Though the judges of an inferior court do not obey the mandate of the superior court, and thereby subject themselves to an attachment, yet if their return to the writ shows that it was no inten- tional contempt, it is proper to issue an alias writ instead of an attachment. 9 It is a sufficient return to a peremp- tory writ, that the act commanded has been done, though not by the defendant personally. 10 If the writ, when fully i Long, In re, 14 L. J. Q. B. 146 ; Co., 11 B. Mon. 143 ; State v. Jones, State v. Johnson Co. (Judge), 12 1 Ired. 414. Iowa, 237 ; Weber v. Zimmerman, 6 Everitt v. People, 1 Caines, 8. 23 Md. 45. 7 Sedberry v. Chatham Co. (Board 2 State v. Rahway (Assessors of of Com'rs), 66 N. C. 486. Taxes), 51 N. J. L. 279. 8 People v. Norstrand, 46 N. Y. 3 State v. Johnson Co. (Judge), 12 375. Iowa, 237. 9 Woodruff, Ex parte, 4 Ark. 630. 4 Weber v. Zimmerman, 23 Md. 45. k> United States v. Kendall, 5 5 Clarke Co. (Just) v. Paris, etc. Cranch, C. C. 385. 362 PLEADINGS AKD PKACTICE. [§§ 29S, 299. executed, does not effectuate the purpose, the court will award a second or auxiliary writ to complete the act begun and to administer complete justice. 1 § 298. Attachment for making no return to or for not obeying a peremptory writ. — If no return is made to the peremptory writ the court will grant an attachment against those persons to whom the writ was directed, 2 or an alias peremptory writ, or an order to show cause why an attach- ment should not issue. 3 "Where one of the respondents, at the time when they were required to make a return, made a return that he was willing to obey the peremptory writ, but the other two, who with him constituted the board, refused to do so, the court ordered the respondents to make a sworn return, and that the two delinquent respondents show cause why they should not be attached for contempt. 1 A motion for an attachment for not making a return to a per- emptory writ of mandamus was granted, but was refused as to some of the respondents who had not the power to do the act desired. 5 So if the peremptory writ is not obeyed, an attachment against the respondent will be granted. 6 "When an attachment is sought for disobedience of a peremp- tory writ of mandamus, the motion therefor is supported by affidavits, and the court grants an order to show cause why an attachment should not issue. 7 § 299. The peremptory writ must be fairly and hon- estly complied with. — There must be a fair and honest compliance with the writ, and the court may grant a rule to show cause why the return should not be quashed as evasive and fraudulent, informal, insufficient, 8 or frivolous and purposely made to avoid the justice of the court, and upon a hearing may order a new return to be made and 1 Rex v. Water Eaton (Lord of 4 United States v. Buchanan Co., Manor of), 2 J. P. Smith, 55. 5 Dil. 2S5. 2 Buller's Nisi Prius, 197 ; King v. 5 President v. Elizabeth (Mayor), Fowey (Mayor), 5 Dow. & Ry. 614. 40 Fed. R 799. 3 Fry v. Montgomery Co. (Com'rs), 6 Buller's Nisi Prius, 197, 198. 82 N. C. 304 ; State v. Alachua Co. ' Q. v. Poole (Mayor), 1 Q. B. 616. (Canv.). 17 Fla. 9. estate v. Griscom, 3 Halst 136. § 30m.] pleadings AND pi;a also that the respondent show cause why he should not be attached for contempt of court. 1 A peremptory writ to re- store A. to an office is obeyed by an actual restoration, and a return that such restoration has been made is sufficient, though at the time of such restoration the respondents no- tified A. to .-.how cause why he should not be displaced for misdemeanors committed by him, which wen.- specified, and many or most of winch had already been urged in their re- turn to the writ as the causes of his removal. 2 . 300. Defenses which may he urged against an attach- ment en the hearing of a motion to show cause why an attachment should not issue for disobeying a peremp- tory mandamus. When a rule has been granted to show cause why an attachment should not issue for a failure to make a return to the alternative writ, or to obey a peremp- tory writ of mandamus, the respondent is at liberty to show any excuse he may have for such disobedience, and if the excuse is sufficient in the eyes of the court the writ of attachment will not issue. An answer to a rule to show cause ■why the county commissioners should not be attache 1 for not obeying a peremptory writ, ordering them to pay a judg- ment, that the entire fund which could be raised by tax- ation was required to meet the expenses of an economical administration of the county, was considered to be sufficient, since private interests must give way to public interests. 3 A motion was made for an attachment for disobedience of a peremptory writ of mandamus, It appeared by the an- swer, that by a change in the law new questions were pre- sented, which were not involved in the former decision. The court held that an officer acting in good faith, accord- ing to his best judgment as to the effect of such change, ought not to be punished by attachment, even if mistaken 1 Kinu; v. Robinson, 8 Mod 836; 8 Reg, v. Jpswich Corporation, 2 State v. Crites i, State v. Horner, 16 Mo. Ap. 191. 366 PLEADINGS AND PRACTICE. [§ 303. ized requirements, and its proceedings in contempt for dis- obedience thereto are void, and the parties imprisoned for such disobedience may be released by the writ of habeas corpus} "Where the respondent has been brought before the court under a writ of attachment, and makes a return of obedience to the writ, the relator may reply that such obedience is a mere evasion. 2 § 303. Proceedings for contempt of court against cor- porations and boards. — If the peremptory mandamus was issued to a corporation, and the order of the court has been disregarded, since a corporation cannot in itself be guilty of a contempt, all proceedings instituted to punish for the contempt must be against individuals. 3 The officers of the corporation, or members of the board or tribunal, must be brought before the court by their individual names, that they in their official capacity may be compelled to perform the mandate, and, failing, may be attached and punished as individuals. 4 "Whether the attachment should issue against all the members of the board or tribunal, who are required by joint action to fulfill the requirements of the writ, is a point upon which the authorities are not agreed. Some of the decisions maintain that the attachment'should only issue against those members who refuse obedience to the writ ; 5 others hold that it should issue against all the members of the board.* A further ruling has been made that, where the writ is directed to several persons in their natural char- acters, the attachment for disobedience must issue against all the respondents. 7 The authorities all agree that, when i Rowland, Ex parte, 104 U. S. sq. v . Ledyard, 1 Ad. & E. (N. S.) 604 616; Buller's Nisi Prius, 197, 198; 2 Com. v. Sheehan, 81* Pa. St. 132. London v. Lynn, 1 H. Black. 206 ; 3 Bass v. Shakopee (City), 27 Minn. State v. Judge, 38 La. An. 43. 250 ; Maddox v. Graham, 2 Mete. 6 state v. Smith, 9 Iowa, 334. (Ky.)56. 'Buller's Nisi Prius, 197, 198; 4 Eufaula (City Council) v. Hick- Brigenoth (Bailiffs), Case of, 2 Stra. man, 57 Ala 338 ; Bass v. Shakopee 808. (City), 27 Minn. 250; St. Louis Co. Ct. v. Sparks, 10 Mo. 117. § 304.] r LEADINGS AND PRACTICE. 307 the parties are before the court, the punishment will be proportioned to the offense, and those, who were ready to obey the mandate of the court, will not be adjudged to be in contempt. 1 Only one writ of attachment should issue against the members of each board or tribunal. If more than one writ is issued, they will be consolidated. 2 Those persons who are in office at the time the peremptory writ is issued are the parties to obey it, and they are the parties to be punished in case of disobedience. 3 In general, before a party can be brought into contempt, he must have per- sonal notice. 4 A person, who is a party to the proceedings, is presumed to have knowledge of all of the proceedings. 5 When the respondents have gone out of office pending the proceedings, their successors should have notice of the pro- ceedings.prior to the institution against them of proceed- ings for contempt. 6 "When the law dispenses with personal notice and allows a public notice, the parties in contempt, if they had no actual notice, can set it up in their answers. 7 § 301. When an appeal lies in a mandamus proceeding under English law. — Under the common law, as it existed prior to the statute of 9 Anne, chapter 20, there was no means of reviewing by appeal, writ of error, or otherwise, a judgment granting or denying a peremptory writ of mandamus. There were various reasons assigned for this ruling. It was said that the writ did not purport to ad- judge or decide any right; that it was rather an award of an execution than a judgment; that it was a mode of com- pelling the performance of an admitted duty rather than a decision as to what the duty was, and that it concluded nothing and was no finality. The proceedings were deter- mined on motion, and no issue was joined. If the return, i Boiler's Nisi Prius, 197, 198 ; Eu- Thompson v. United States, 103 faula (City Council) v. Hickman, 57 U. S. 480. Ala. 338 ; State v. Smith, 9 Iowa, 4 King v. Edgvean, 3 Term R 352. 334; Com'rs v. Sellew, 99 U. S. 624. 5 King v. Fowey (Mayor), 5 Dow. 2 Durant v. Washington Co. & Ry. 614. (Sup'rs), Woolw. 377. 6 See § 238. 3 Com'rs v. Sellew, 99 U. S. 624; 7 King v. Edgvean, 3 Term R 352. 368 PLEADINGS AND PRACTICE. [§ 305. in case a return was put in, was sufficient in law, the pro- ceedings were suspended; if it was not sufficient, the per- emptory writ was issued. The decision in such cases was considered to be merely a rule ; no formal judgment was entered, and originally the proceedings were not entered up ; consequently there were no such proceedings as war- ranted a review. 1 Since the passage of the statute of 9 Anne, chapter 20, the relator has been allowed to traverse the return, and if such a course is pursued, a writ of error will lie, because a final judgment may in such case be given. It was considered to be against the nature of a writ of error to lie on any judgment, save where an issue may be joined and tried, or where a judgment may be had on a joinder in demurrer. If there be a verdict or a judgment on demurrer, the successful party shall recover. his costs, and upon such judgment a writ of error will lie. 2 If, however, the relator resorted to the summary proceedings allowed by the common law, without traversing, or plead- ing to, the return, no writ of error could be taken from the final judgment, since the common-law rules of proceeding were not abrogated by the statute of 9 Anne, chapter 20 So when a court improperly dismisses an appeal on the ground that it has no jurisdiction, it may be compelled by mandamus to reinstate and to hear it. 4 § 305. An appeal is granted in America in mandamus proceedings whenever the action taken is considered to be a final judgment. — The English rule, that a mandamus proceeding cannot be reviewed, unless an issue of fact was made therein or there was a judgment or demurrer, has met 1 Rex v. Dublin, Stra. 586 ; S. C. 3 Black. Com. 265 ; New Haven, etc. on appeal, 8 Mod. 27 ; Pender v. E. R. v. State, 44 Conn. 376 ; People Herle, 3 Bro. P. C. 505 ; Commercial v. Brooklyn (Pres.), 13 Wend. 130. Bank v. Canal Com'rs, 10 Wend, 25; 3p e0 ple v. Brooklyn (Pres.), 13 People v. Brooklyn (Pres.), 13 Wend. Wend. 130 ; New Haven, etc. Co. v. 130; New Haven, etc. Co. v. State, State, 44 Conn. 376; Rex v. Dublin 44 Conn. 376 ; Layton v. State, 28 (Dean), 8 Mod. 27. N. J. L. 575 ; Hardee v. Gibbs, 50 4 Regina v. Smith, 35 Up. Can., Miss. 802. Q. B. 518. 2 Rex v. Dublin (Dean), 8 Mod. 27 ; & 3 § 306.] PLEADINGS AND PRACTICE. 309 with but little favor in this country. 1 The American courts generally have, by statute, a right of review in all cases where there has been a final judgment in the court below, and they have granted such review in mandamus proceed- ings whenever they considered the action of the lower court to be a final judgment. 2 But in all cases there must be a final judgment before an appeal can be taken. A prema- ture appeal will be dismissed. 3 Such review has been granted, when the peremptory writ was awarded on the pleadings, 4 or on the petition after a demurrer thereto had been sustained and the respondent had declined to plead further, 5 when the peremptory writ was issued after a de- murrer to the return had been sustained, 8 and when the proceedings were dismissed on argument after a return had been made to a rule to show cause why a mandamus should not issue. 7 § 306. Appeal or writ of error lies if the writ is re- fused on the reading of the petition.— When the court 1 Hardee v. Gibbs, 50 Miss. 802. 2 Davies v. Corbin, 112 U. S. 36 ; United States v. Addison, 22 How. 174; Careaga v. Fernald, 66 CaL 351 ; Cbance v. Temple, 1 Iowa, 179 ; State v. Hard, 25 Minn. 460 ; Bean v. People, 6 Colo. 98 ; State v. Ot- tinger, 43 Ohio St. 457 ; State v. Lan- caster County, 13 Neb. 223. In Con- necticut the granting or refusing of a mandamus is considered to be a matter of discretion, and therefore not subject to review on appeal. Chesebro v. Babcock, 59 Conn. 213. In New Jersey the early Euglish view bas been adopted, and a review by an appellate court was refused, because the proceedings were not a civil suit for the determination of private rights, but an exercise of prerogative power, because the order awarding the writ is not in the nature of a final judgment upon 24 a question of right between the par- ties, and because by common law a writ of error did not lie, which rule had not been changed by statute or custom. It was stated that, if pri- vate rights were decided by such a proceeding, a question as to the right of review would arise, which was not presented in the case be- fore the court Layton v. State, 28 N. J. L. 575. 3 Watts v. Port Deposit (Pres.), 46 Md. 500. 4 Gregg v. Pemberton, 53 Cal. 251 ; Withers v. State, 36 Ala. 252. 5 Lee County v. State, 36 Ark. 276. 6 New Haven, etc. R R. v. State, 44 Conn. 376. '• Hartman v. Greenhow, 102 U. S. 672 ; Etheridge v. HalL 7 Port 47 ; State v. Chairman County Com'rs, 4 Rich. (N. S.) 485. 370 PLEADINGS AND PEACTICE. [§ 307. upon the hearing of the application decides that, upon the allegations made, the relator is not entitled to a writ of mandamus, and refuses to grant either a motion to, show cause or an alternative writ, the prevailing opinion in America is, that such action in a final judgment, from which an appeal or a writ of error may be taken to the appellate court. 1 The same rule applies when, on a hearing of the rule to show cause why a mandamus should not issue, the proceedings are dismissed. 2 "Whether an appeal or a writ of error must be resorted to will depend upon the local statutes. § 307. Proceedings in review in the appellate court. — On the review of mandamus proceedings in an appellate court, the respondent cannot raise a defense which is not contained in his return. 3 Though the. relator was not en- titled to the peremptory writ of mandamus when it was granted to him, still the judgment will be affirmed if he has since become entitled to the writ. 4 Though a peremp- tory writ be ordered, and another judgment be granted for 1 Ex parte De Groat, 6 Wall. 497 ; was substituted in place of a formal Brashear v. Mason, 6 How. 92; return and demurrer thereto, an United States v. Guthrie, 58 U. S. issue of law was presented, and a 284; Ex parte Morris, 11 Grat. 292. writ of error was considered to be It has been held that, if the writ is the proper remedy for reviewing the refused upon the reading of the ap- judgment dismissing the proceed- plication, then there is no such judg- ings. State v. Ottinger, 43 Ohio St ment as will justify a writ of error, 457. Either proceeding, a writ of and that the proper remedy in such error or an original mandamus pro- case is to bring an original man- ceeding, has been considered to damns proceeding in the appellate be allowabla Ex parte Candee, 48 court. State v. Oappeller. 37 Ohio Ala 386. In Missouri, in such cases, St. 121. The same court held that, no review is allowed, because no when an issue was made up, as pre- final judgment has been granted, scribed by law, presenting a ques- the English rule as to the necessity tion whether the peremptory writ of an issue of fact or law being should issue, and a final decision on adopted. Shrever v. Livingston Co., the merits, whether such issue was 9 Mo. 195 ; Ex parte Skaggs, 19 Mo. of fact or of law, was determined, 339. it was a final judgment, to review 2 Decatur v. Paulding, 14 Pet. 497. which a writ of error would lie. In 3 People v. Green, G4 N. Y. 499. a case which was submitted on an 4 State v. Hoeflinger, 31 Wis. 257. agreed statement of facts, which §§ 308, 309.] PLEADINGS AND PRACTICE. 371 the costs of the proceedings, yet the two judgments are in substance and effect but one judgment, and but one appeal lies therefrom. 1 § 308. The right to review mandamus proceedings hy appeal or writ of error does not always exist. — It does not follow that, in all cases where the parties consider them- selves to be aggrieved bv the decision in mandamus pro- ceedings, that they may have a review thereof. There may be no court with appellate jurisdiction or with jurisdiction in such cases. The first occurs, when the proceedings were originally instituted in the court possessing the highest ap- pellate jurisdiction. The latter occurs, when such appellate court has jurisdiction by review only over certain subjects, or with limitations as to the amount involved in litigation. Formerly a writ of error in a mandamus proceeding would not lie to the supreme court of the United States, unless property of a certain value was involved in the proceed- ings ; 2 but the act creating the federal circuit courts of ap- peal, March 3, 1891, removes all limitations of that nature relative to appeals to those courts, and also relative to ap- peals to the United States supreme court. § 309. Is peremptory mandamus suspended Iby an ap- peal with an indemnifying bond? — In the absence of any statute specially applicable thereto, it has been a disputed question whether an appeal or writ of error, supported by a bond to protect the appellee or defendant in error, will act as a suspension of the decree for a peremptory man- damus. The English rule is, that such order still remains the judgment of the court, which has not been reversed, and that, to allow it to be suspended by proceedings for a review, would in many cases, owing to the short terms of office, be a denial of justice. 3 The same view is taken by some of the American courts. 4 Other courts hold that the i State v. Manitowoc Co. (Clerk), 3 Dublin (Dean) v. Dowgatt, 1 48 Wis. 112. Peere Williams, 348, 351 ; Montague * United States v. Addison, 22 v. Dudman, 2 Ves. Sr. 396. How. 174; Columbian Ins. Co. v. ^Pinckney v - Henegan, 2 Strob. Wheelright, 7 Wheat. 534. 372 PLEADINGS AND PKACTICE. [§ 310. writ of mandamus has lost its prerogative character, that the action of the court in disposing of the matter is a final judgment, which judgment is like the judgment in an or- dinary action at law, and therefore is stayed, as are other judgments, where a proper bond is executed for the protec- tion of the adverse party, pending an appeal or writ of error. 1 The supreme court of the United States held that under the general law a proper bond of indemnity acts as a supersedeas during the pendency of a writ of error, and that the proper mode of reviewing the judgments of inferior courts in man- damus proceedings is by a writ of error. 2 So long as the damages awarded in a mandamus proceeding are confined to the costs of the writ, and so long as it is held that a mandamus proceeding is a bar to a suit for damages, it seems to the writer that the peremptory writ should issue, 3 though a writ of error has been allowed or an appeal has been taken from the judgment in favor of the relator. § 310. Costs in mandamus proceedings.— The award of costs in proceedings in mandamus is according to the dis- cretion of the court. They are awarded, or divided, or re- fused, as under the circumstances seems proper to the court ; 4 but it has been considered to be such a matter of course to grant the costs to the party ultimately succeeding, that very 250 ; Tyler v. Hamersley, 44 Conn. 8 See §§ 310, 311. 393 ; Kaye v. Kean, 18 B. Mon. 839 ; 4 Reg. v. St. Saviours, 7 A. & E. State v. Meeker, 19 Neb. 444. 925 ; Reg. v. Harden, 23 L. J. Q. B. i Griffin v. Wakelee, 42 Tex. 513; 127; State v. McCullough, 3 Nev. State v. Lewis, 76 Mo. 370 ; Church- 202 ; Fox v. Whitney, 32 N. H. 408 ; ill v. Martin, 65 Tex. 367 ; People v. State v. Bonnifield, 10 Nev. 401 ; Highway Conrrs, 25 How. Pr. 257 ; Tuolumne County v. Stanislaus State v. Marshall Co. (Judge), 7 County, 6 Cal. 440 ; People v. Police Iowa, 186 ; Morris, Ex parte, 11 Com'rs, 108 N. Y. 475 ; President v. Grat. 292; United States v. Colum- Elizabeth (Mayor, etc.), 40 Fed. R. bian Ins. Co., 2 Cranch, C. C. 266 ; 799 ; State v. Berg, 76 Mo. 136 ; Q, State v. Superior Court (Wash., Jan. v. Dover (Mayor), 11 Ad. & E. (N. S.) 16, 1891), 25 Pac. Rep. 1007. 260 ; State v. County Treas., 10 Rich. 2 United States v. Addison, 22 (N. S.) 40; People v. Pritchard, 19 How. 174 ; Hartman v. Greenhow, Mich. 470 ; Tennant v. Crocker, 85 102 U. S. 672 ; Davies v. Corbin, 112 Mich. 328 ; State v. Johnson County U. S. 36. (Judge), 12 Iowa, 237. § 310.] PLEADINGS AND PRACTICE. 373 strong grounds will be required to induce the court to de- part from the general rule. 1 We have found but one case where damages for the injury sustained were awarded as costs, and in that case the statute so provided. The relator was expelled from a society, and, by reason thereof, had been discharged from his situation. "When he was restored by mandamus to his society membership, he was allowed $400 as damages and $50 as costs. 2 i Q. v. Newbury, 1 Q. B. 751. It to his costs. U. S. v. Schurz, 102 was considered that, according to U. S. 378. the practice of the court, the sue- 2 People v. Musical M. P. Union, cessful party was always entitled 118 N. Y. 101. CHAPTEK 20. MISCELLANEOUS PRINCIPLES. § 311. Mandamus bars a suit for damages, and vice versa, 312. An injunction will not issue against the prosecution of a man- damus. 313. Mandamus not always issued when there is no other remedy. 314. Statute of limitations, how far applicable. 315. Res judicata in mandamus proceedings. § 311. Mandamus bars a suit for damages, and vice Tersa. — An application for a writ of mandamus is based on the theory that the relator has no other remedy to re- dress the wrong he has suffered. "When, however, a party brings an action to obtain damages for a wrong which he has suffered, he thereby admits that such action furnishes a compensation for the injury he has suffered. As a con- sequence, the two proceedings are antagonistic to each other in their applicability, and the use of one logically is a bar to the use of the other. It is accordingly held that, by bringing a suit for damages, a party waives all right to apply for a mandamus, and vice versa. 1 A party, who had sued for damages for wrongful expulsion from a corpora- tion, was held to have waived all right to seek a restoration by the writ of mandamus? Where, however, it was apparent that the damage suit could not be maintained, in several cases the courts have refused to consider it as a bar to a man- damus proceeding. A school teacher sued a township for her salary as such teacher, and obtained a judgment, which the defendant appealed. Pending such appeal, she sought to obtain the money due her by a mandamus proceeding. The court allowed the mandamus to be prosecuted, because 1 Kendall v. Stokes, 3 How. 87; 2 state v.Slavonska Lipa, 28 Ohio State v. Ryan, 2 Mo. Ap. 303. St 665. §§ 312, 313.] MISCELLANEOUS PKLNCIPLES. 375 it appeared that she had failed to take certain necessary steps before bringing her civil suit, and that, therefore, such suit must fail. 1 A mere colorable suit, which was not main- tainable, was considered to be no bar to an application for a mandamus? § 312. An injunction will not issue against the prose- cution of a mandamus. — A chancery court has no author- ity to enjoin further proceedings in an application for a mandamus. " The reason is, that a mandamus is not a writ remedial, but mandatory. It is vested in the king's superior court of common law to compel inferior courts to do some- thing relative to the public. That court has a great latitude and discretion in cases of that kind ; can judge of all the circumstances, and is not bound by such strict rules as in cases of common rights." 3 It is said, that to allow such interference would interrupt the course of judicial proceed- ings, and lead to a conflict of jurisdiction, producing the greatest confusion, and tending to subvert the administra- tion of justice. 4 The court which first obtains jurisdiction in any matter will not be deterred from issuing a per- emptory mandate therein, by the fact that another court, in proceedings subsequently begun, has issued an injunction restraining the parties from prosecuting the matter further. 5 § 313. Mandamus not always issued when there is no other remedy. — In a number of instances the courts have stated that though there was a wrong and no remedy therefor, that it did not follow that the writ of mandamus would issue. 6 This at first sight seems to be a strange proposition, when it is remembered that the writ is issued i Apgar v. Trustees, 34 N. J. L. Washington C. Court, 10 Bush, 564 ; 308. Riggs y. Johnson Co., 6 Wall. 166 ; 2 People v. State Treas., 24 Mich. Weber v. Lee Co., 6 Wall. 210. 468. 6 state v. Thayer, 10 Mo. Ap. 540 ; 3 Montague v. Dudrnan, 2 Ves. Sr. People v. Dutchess C. P. (Judges), 20 396 ; Columbia Co. (Com'rs) v. Bry- Wend. 658 ; Ostrander, Ex parte, 1 son, 13 Fla. 281. Denio, 679 ; Ewing v. Cohen, 63 4 Weber v. Zimmerman, 23 Md. 45. Tex. 482. 5 Cumberland, etc. R. R, v. Judge 376 MISCELLANEOUS PRINCIPLES. [§ 313. because there is no other remedy, and the absence of any other remedy is held to be a sufficient warrant for the writ. 1 It is well settled that, when a judicial discretion is imposed, mandamus is not the proper remedy whereby to review it. 2 There are few cases where the acts of officers acting judi- cially are not reviewable by certiorari, appeal or writ of error, and when they are not so reviewable, it is clear the law intended such action to be final. So the statement should rather be, there is no review by mandamus of an action by a public officer calling for the exercise of judg- ment or discretion, when the law intends such action to be final. 3 The action was considered to be final and not sub- ject to review by mandamus: in the matter of licensing dram-shops, when the court was allowed a discretion ; 4 on the question of issuing township bonds in aid of a railroad upon presentation of a petition, concerning which the assessors were to decide whether it complied with the law ; 5 in the exclusion, without a proper hearing on the merits, of one claiming to have been elected an alderman, when by charter the common council were the final judges in such elections ; 6 when the mayor and common council have de- termined that a party has sustained no damages by virtue of a condemnation of property ; 7 when a school committee, having authority to decide upon all questions relative to the !Rex v. Barker, 3 Burr. 1265; 3 3 Wood v. Strother, 76 Cal. 545 Black. Com. 110; Prop'rs St Luke's Morley v. Power, 73 Tenn. 691 Church v. Slack, 7 Cush. 226 ; Brad- Scott v. Superior Court, 75 Cal. 114 , ley, Ex parte, 7 Wall. 364; Napier Lewis v. Barclay, 35 Cal. 213; Peo^ v. Poe, 12 Ga. 170 ; Poor Com'rs v. pie v. Weston, 28 Cal. 639 ; Morton Lynah, 2 McCord, 170 ; People v. v. Compt Gen., 4 Rich. (N. S.) 430 ; New York (Mayor), 10 Wend. 393. Grier v. Shaekleford, 3 Brev. 491. 2 State v. Nelson, 21 Neb. 572; < Whittington, Ex parte, 34 Ark. State v. Kendall, 15 Neb. 262 ; Cari- 394. aga v. Dryden, 29 Cal. 307 ; Hoole » Rowland v. Eldredge, 43 N. Y. v. Kincaid, 16 Nev. 217 ; Scripture 457. v. Burns, 59 Iowa, 70 ; Newport 6 People v. Fitzgerald, 41 Mich. 2. (City) v. Berry, 80 Ky. 354 ; Oneida ? Smith v. Boston (Mayor), 1 Gray, C P. (Judges) v. People, 18 Wend. 73. 79 : Lewis v. Barclay, 35 Cal. 213. § 31-i.] MISCELLANEOUS PEIXCIPLES. 077 qualifications, elections and returns of its members, have de- clared a seat therein vacant for want of a legal election and of qualification by the petitioner, though the committee stated in its record that the only reason for its decision was because the petitioner was a woman ; ' and when a visitor of a corporation or the court of a corporation having juris- diction has acted in a case. 2 Where a case has once been heard by a court of justice, it cannot be said there is a de- nial of justice because no review is allowed by mandamus, appeal or otherwise. There must be some tribunal whose decision is final, and it is for the law to decide what decis- ion shall be final. Where a superior court has not appel- late jurisdiction in the case, it will not review the action of the lower court by mandamus? A court dismissed an ap- peal from a justice of the peace because a revenue stamp was not put on the document in suit within the proper time. Whether such decision was correct could only be determined by examining the evidence, and such action would make a mandamus a substitute for an appeal. The writ was dismissed, though the amount was too small to authorize an appeal. 4 The fact that the amount was too small to permit an appeal does not authorize the issuance of this writ. 5 Where an appellate court dismisses a case for want of jurisdiction, it judicially determines a question incident to the proceedings, and therefore a mandamus will not lie to reinstate the case, though there is no other mode of reviewing such action. This writ cannot be used as a writ of error. 6 § 314. Statute of limitations, how far applicable.— The object of the law is to put an end to ligitation, and for i Peabody v. Boston (School Com.), Ewing v. Cohen, 63 Tex. 482 ; State 115 Mass. 383. v. Thayer, 10 Mo. Ap. 540 ; Ostran- 2 6 Bacon's Ab., title " Man.," C. 2 ; der, Ex parte, 1 Denio, 679. Lord Holt's dissenting opinion in 4 State v. Wright, 4 Nev. 119. Phillips v. Bury, 2 T. R 356; sus- & Newman, Ex parte, 81 U. a tained on appeal, Phillips v. Bury, 152 ; Burdett, In re, 127 U. S. 771. 4 Mod. 106; King v. Cambridge « People v. Garnett, 130 I1L 340. (Chancellor), 6T.R 89. See § 201. 3 Newman, Ex parte, 81 U. S. 152 ; 378 MISCELLANEOUS PEINCIPLES. [§314. that purpose statutes of limitation have been passed from time to time, which are considered to be statutes of re- pose. As a general rule, such statutes are not considered to apply to the writ of mandamus', l yet where this writ is con- sidered to be an ordinary action at law, or the phraseology of the statute of limitations is broad enough to include it, the courts have ruled that this writ is included therein. 2 In their discretion, however, many courts have decided that this stat- ute applies by analogy, and when a suit for a similar cause of action is barred, they refuse the assistance of this writ. 3 A mandamus was applied for to compel the clerk of the board of supervisors to put the county seal on a warrant which his predecessor had failed to do. More than three years had elapsed, which was the time limited for actions against officers for omission of official duty. Mandamus was con- sidered to be an action for failure to perform official duty, and the writ was refused. 4 A mandamus to collect a judg- ment, obtained against a municipality on its bonds, is con- sidered to be equivalent to the statutory writ of execution, and the bar of the statute against the latter is applied to the former. 5 Even though the judgment becomes barred 1 State v. Meagher, 57 Vt 398 ; of an execution to ten years after State v. Knight, 31 S. C. 81 ; Chinn the date of the judgment did not v. Trustees, 32 Ohio St. 236 ; Klein apply to such cases, because an exe- v. Smith Co. (Bd. Com'rs), 54 Miss, cution never ran against a munic- 254. ipality, and besides, the judgment 2 Haymore v. Yadkin (Com'rs), might be revived by a scire facias, 85 N. C. 268; Auditor v. Halbert, but such revival gave the man- 78 Ky. 577; Peoria Co. (Board damus no additional force. The Sup'rs) v. Gordon, 82 111. 435 ; Smith writ was allowed to go. United v. Bourbon Co. (Com'rs), 42 Kans. States v. Ottawa (Bd. Aud.), 28 Fed. 264. Rep. 407. The fact that the judg- 3 George's Creek, etc. Co. v. Co. ment could be revived would seem Com'rs, 59 Md. 255 ; Territory v. to render the statute of limitations Potts, 3 Mont 364. inapplicable to the case, but such 4 Prescott v. Gonser, 34 Iowa, 175. delay in applying for the writ, if 5 United States v. Oswego (Tp.) unexplained, was a good reason for 28 Fed. Rep. 55. In another case refusing the writ on account of the court decided otherwise, hold- laches. Where there was no right ing that the law limiting the issue of revival by scire facias, such. § 315.] MISCELLANEOUS PEIXCIPLES. 379 after the application for the writ is filed, yet the writ will be refused, since the filing of the application does not create a lien. 1 Even though the statute of limitations is not recognized as having any application to this writ, yet the courts will refuse its assistance, when, according to their judgment, there has been unreasonable delay in ask- ing for it, when such delay is unexplained and unaccounted for. 2 Since statutes of limitation generally do not run against the government, it has been held that they do not apply when the state, by its attorney -general, applies for this writ. 3 § 315. Res judicata in mandamus proceedings.— A judgment quashing a writ of mandamus, because it is in- formal or defective by omission of necessary parties or of some material fact, or because it does not disclose a case coming within the legitimate scope of the writ, is not con- clusive on the parties, and is no bar to a subsequent regular proceeding. 4 So where a peremptory mandamus was is- sued to restore one who had been removed from office, because the return was defective, it was held not to pre- vent proceedings de novo to remove the relator from his office for his prior delinquency. 5 The result of mandamus proceedings can be no bar to subsequent proceedings on the same subject, unless there has been an adjudication on the merits. 6 "When, however, a mandamus proceeding has been heard and decided on its merits, the judgment rendered is conclusive against the parties thereto, whether the issue right having expired contempora- Kansas the attorney-general only neously with the right to issue an appears in such cases when public execution, the right to a man- interests are to be protected, and damus was held to be barred. Stew- not when private interests are in- art v. St Clair Co. Ct (Just), 47 Fed. volved. Rep. 482. 4 Tucker v. Iredell (Just), 1 Jones, iMcAleer v. Clay Co., 42 Fed. 451; State v. Milwaukee Ch. of Rep. 665. Com., 47 Wis. 670 ; People v. Baker, 2 People v. Chapin, 104 N. Y. 96; 35 Barb. 105. Chinn v. Trustees, 32 Ohio St. 236 ; 5 King v. Taylor, 3 Salk. 231. State v. Knight, 31 S. C. 81. 6 State v. Stearns, 11 Neb. 104 3 State v. Stock, 38 Kans. 154. In 380 MISCELLANEOUS PKLNOIPLES. [§ 315. presented was one of law or fact, in any other proceeding, whether it be legal or equitable or a proceeding by man- damus, and is also conclusive as to all matters directly in- volved and determined therein, until such decision has been reversed or set aside. 1 So a mandamus against a county or its legal representatives is conclusive against a bill in equity subsequently filed against them, as to all matters which could have been set up in the mandamus proceeding, though the bill is filed by other inhabitants of the county. 2 When a court had jurisdiction of the parties and the subject-mat- ter in a mandamus proceeding, its judgment therein can- not be attacked collaterally. 3 1 State v. Ottinger, 43 Ohio St Washington L Co. v. Kansas P. R. 457 ; State v. Trammel (Mo., Nov. 9, R, 5 Dill. 489. Contra, Burland v. 1891), 17 S. W. Rep. 502 ; State v. N. W. M. B. Assoc., 47 Mich. 424 Hard, 25 Minn. 460; Tucker v. 2 Sauls v. Freeman, 24 Fla. 209. Iredell (Just), 1 Jones, 451; Block a State v. Trammel (Ma, Nov. 9. v. Com'rs, 99 U. S. 686 ; Louis v. 1891), 17 S. W. Rep. 502. Brown Township, 109 U. S. 162; CHAPTEK 21. FORMS IN MANDAMUS PROCEEDING& § 316. Entitling the petition. 317. Form of the body of the petition. 318. Verification of the petition. 319. Form of the alternative writ 320. Requirements of the return. 321. Form of final judgment 322. Illustrations of the necessary pleadings. § 316. Entitling the petition. — The courts have been disposed to ignore forms in the pleadings in mandamus proceedings, only requiring that the essential facts neces- sary should in some way be stated, no matter how inform- ally. Owing to this very informality it seems desirable to give some examples of forms which have met the approval of the courts. The petition may be entitled: 1. To the Honorable Court of * Or, 2. Ex parte A. B. [the petitioner]. To the Honorable Court of ■. Or, 3. State of , at the relation of A. R, vs. CD. To the Honorable Court of > Or, 4. A. B., Plaintiff, ) vs. [• In the Court of , Term, A. D. 18—. C. D., Defendant ) To the Honorable Court of . The second form is generally used. The fourth form is proper in those states where it has been ruled that under 382 FOEMS IN MANDAMUS PROCEEDINGS. [§§ 317, 318. their laws requiring all suits to be brought in the name of the real party in interest, the name of the state cannot be used by a private relator. 1 Of course when the prosecut- ing officer institutes the proceedings, the name of the state should be used. The third form is the one suggested by the writer. 2 § 317. Form of the body of the petition.— The body of the petition should read : The petition of A. B. respectfully showeth that [here all the facts showing the duty which was imposed upon the respondent, the rights of the relator in the matter, the demand of performance and the respondent's refusal to perform, or the facts dispensing with a demand and refusal should be stated]. Your petitioner therefore prays that a peremptory mandamus may issue to the said C. D. commanding him [here state the duty whose perform- ance is requested]. 3 The petition should be signed by the petitioner or by his counsel. § 318. Verification of the petition. — The petition must be verified. Such affidavit may read : State of , ) County of . j" 63, A. B., the petitioner above named, being duly sworn, on his said oath deposes and says that the several matters and things in the foregoing petition stated are true in substance and in matter of fact, to the best of his knowledge, information and belief. 4 A. B. Sworn to and subscribed before me, this day of , A, D. 18 — . [Officer's name and title of office.] 1 See ante, § 228. pleadings given later from actual 2 See ante, § 247. cases. The writer believes that the 3 It is a common practice, instead pleader should ask at first for the of asking for a peremptory writ of peremptory writ, the order actually mandamus, to ask for an alternative given being a matter in the discre- writ requiring the respondent to do tion of the court See ante, % 249. the act desired or to show cause to 4 As to how far the petitioner the court at a future time desig- must swear to the absolute truth of nated why the writ has not been the matters stated in his petition, obeyed. An illustration of such an see ante, § 248. application will be found in the § 319.] FORMS IN MANDAMUS PROCEEDINGS. 3S3 § 319. Form of the alternative writ.— If the alterna- tive writ is granted, being an order of court, it will be en- titled : 1. State of to [the respondent], Greeting. Sometimes the name of the case is put above the order, when the writ will be entitled as follows: In the Court. 2. State of , at the relation of [the pe- titioner}, vs. [the respondent, giving his official title and name, or omitting his name]. State of to [the respondent], Greeting. The body of the writ will read : Whereas, it hath been related to the court [court in which the matter is pending], by A. B. [the relator]} that [here insert the allega- tions of the petition prior to the mandatory clause]: Now, therefore, being willing that full and speedy justice should be done in the premises, 'we do command you that [here insert the mandatory clause of tlie peti- tion], or that you show cause to this court, at its session at o'clock on the day of , A. D. 18 — , at , why you have not done so ; and have you then and there this writ, with your return that you have done as you are are hereby commanded. The writ should be attested in the manner usual with orders emanating from that court. Some courts have adopted the following form, which the writer recommends as dispensing with all trouble in pre- paring the alternative writ, viz. : The State of to A. B. [the respondent], Greeting : Whereas, on the day of , A. D. 18 — , there was filed, and on the day of , A. D. 18 — , presented to our court of , a petition praying for a writ of mandamus, which petition is in words and figures following, to wit : [Then insert tlie petition in full, including the caption and the verifi- cation.] 1 In the writ it is not the practice Pearson, 2 Scam. 189 ; Drew v. Mc- to state the facts absolutely, though Lin, 16 Fla. 17 ; State v. Lawrence, it has been done. Com. v. Pitts- 3 Kan. 95 ; State v. Zanesville, etc. burgh (Councils), 34 Pa St 496. Co., 16 Ohio St 308 ; Hawkins v. The ordinary statement is that it More, 3 Ark. 345; King v. Good- hath been represented, related or rich, 3 Smith, 388 ; State v. GolL 33 suggested to the court. People v N. J. L 285. 384 FOKMS IN MANDAMUS PROCEEDINGS. [§§ 320-322. And whereas, upon consideration, it was ordered that an alternative writ of mandamus should issue : These are therefore to command you [here insert the prayer of the mandatory clause of the petition], or to appear before this court on the day of , A. D. 18 — , at o'clock A. M., then and there to show cause, if any you have, why you have not so done. The writ should then be attested in the mode adopted in each court for attesting its orders. § 320. Requirements of the return. — The return should be entitled by the name of the cause, viz. : The State of , at the relation of A. B. [the relator], ) vs. > In the Court C. D. [the respondent, giving official title]. ) The return differs in no respect from the answers in any civil suit, except as to the particularity of its allegations, which has been explained before. 1 All motions made by the respondent or by the relator (at least after the court has granted the alternative writ) must be entitled of the cause. 2 The return should be signed by the respondent or by his counsel. § 321. Form of final judgment. — If upon the final hear- ing the peremptory writ is refused, the judgment is that the respondents go without day and recover of petitioner their costs. 3 If the court make any different order as to costs, the judgment will be void accordingly. If the per- emptory writ issues, it issues as an order of the court, com- manding the performance of the duties ordered in the alternative writ, but omitting the order to show cause, and directing the respondent, at a period named, to make a re- turn to the court, showing his obedience to the writ. § 322. Illustrations of the necessary pleadings. — To the above forms it is deemed expedient to add the plead- ings actually filed and approved by the courts in a few in- stances. It should be premised, however, that the omission of the title of the cause, or of the affidavit of the petition, must not be considered to be evidence that none such ex- isted, since where no issues have been made thereon, the courts find it unnecessary to notice them. J Ante, §§ 273-281. 2 See § 247. 3 Ante, § 292. § 322.] FOKMS IN MANDAMUS PROCEEDINGS. 385 Petition. To the Honorable the Judge of the Superior Court of Law in and for the County of Iredell, State of North Carolina : The petition of Samuel Tucker respectfully showeth to your honor, that, at the November session, 1847, of the court of pleas and quarter sessions for the county aforesaid, the justices thereof made an order, and caused the same to be entered of record, appointing Henderson Forsyth, Enos Gaither and Alexander Bailey commissioners to let and contract for the building of a bridge over the South Yadkin river, near where Belt's bridge formerly stood. Your petitioner further showeth that the said commissioners, in the month of January, 1848, contracted with your petitioner for building said bridge, at the place designated, according to certain written specifi- cations, describing and establishing with great particularity the kind of a bridge, the manner of building it, and the material to be used about the same ; that the said commissioners required your petitioner to sign specifications, and the same were returned to, and are now on file in the office of, the clerk of the county court, and that, to secure the perform- ance of the contract, your petitioner was required to and did execute a bond, with good security, in the sum of two thousand dollars, which said bond was delivered to the said commissioners for and in behalf of the county of Iredell, and returned to the court, and is now on file in the clerk's office. And your petitioner further showeth that the said Henderson Forsyth. Enos Gaither and Alexander Bailey, in contracting with your petitioner, only acted for and in behalf of the county, and by virtue of their appoint- ment as commissioners as aforesaid of the county court. And he further showeth that the said South Yadkin river, at the place designated, is within the limits of Iredell county, and within the juris- diction of the county court. Your petitioner further showeth, that it was contracted by the com- missioners aforesaid to pay your petitioner the sum of seven hundred and ninety-nine dollars for building the bridge according to the said specifications. Your petitioner further showeth that he soon thereafter went to work, and employed a large number of hands, and, in as substantial and workmanlike manner as the specifications would admit, built and com- pleted a bridge, which in every respect your petitioner avers corre- sponded to the specifications above mentioned ; that in all things he per- formed his contract and followed the said specifications as his guide. Your petitioner further showeth to your honor, that the said commis- sioners, after viewing and examining the bridge after its completion, entirely approved the same, and made their report to the November ses- sion, 1848, of the county court, stating their examination and approval, and recommending that your petitioner be paid the sum of seven hun- 25 386 FORMS IN MANDAMUS PROCEEDINGS. [§ 322. clred and ninety-nine dollars, according to agreement (which is filed as an exhibit). That upon the presentation of said report, and according to its recommendation, the justices of the court, at the said November session, 1848, made an order directing the county trustee to pay to your peti- tioner the sum of seven hundred and ninety-nine dollars for building the bridge as aforesaid contracted for and completed by your petitioner, a copy of which order, marked B., is herewith submitted as a part of this petition. Your petitioner further showeth to your honor, that said bridge thereupon was opened to and used by the community as a county public bridge ; and your petitioner applied to the county trustee for his pay ; that said trustee deferred payment at the time for the want of the nec- essary county funds wherewith to discharge the same. Your petitioner further showeth to your honor, that after said bridge had been used by the citizens of the county and the public generally, a part of said bridge fell down, not because of any deficiency in the execution of the work on the part of your petitioner, as he is fully convinced and satisfied, but entirely from the plan of the bridge itself, as prescribed in the said speci- fications, and your petitioner shows that it is next to impossible to make a permanent bridge on the plan proposed ; fox this one reason, that the pillars, built of common rough rock, without mortar or cement, and bounded and built as specified, of only four feet base, and twenty feet high, and three feet at top, are not calculated to stand and support a bridge ; that your petitioner has taken the opinion of an intelligent en- gineer upon the plan of the pillars and bridge, and he states, unequivo- cally, that such a structure could not be expected to stand. And your petitioner shows to your honor, that he faithfully and to the best of his ability performed the work specified by the county, and for which he and the justices by their commissioners contracted, and that he did not contract to insure the work to be permanent, and is in no wise responsi- ble for defects in the original plan of the work. Your petitioner further showeth, that after said bridge had fallen in part, the justices at the Feb- ruary term, 1849; rescinded their former order of payment, and have instructed their county trustee not to pay your petitioner. Your peti- tioner shows to your honor, that he has repeatedly demanded his money, and sought to obtain it, but his demands have been and still are met with positive refusal ; that, having performed his contract according to his written directions, and received an order for his money, he is now strictly entitled to receive, from the treasurer of the county, the sum of seven hundred and ninety-nine dollars, with interest on the same from the 17th November, 1848, until the same be paid ; and, as he can have no relief in the premises, save by the extraordinary process of mandamus, he shows that he is entitled to the same ; that he learns from the clerk of the county court, and so shows to your honor, that the following are the justices of the peace in and for the county of Iredell (setting them forth at large). Your petitioner therefore prays your honor, that an alternative man- § 322.] FORMS IN MANDAMUS PROCEEDINGS. 387 damus may issue to the aforesaid justices, commanding them that unless they show good cause to the contrary, whenever thereunto required by this honorable court, they pay or cause to be paid, by the officers of this county, the said sum of seven hundred and ninety-nine dollars with in- terest thereon from the said 17th of November, 1848; that upon their failure to show such cause, they be absolutely and peremptorily com- manded by this honorable court to pay to the petitioner the afor-esaid sum of seven hundred and ninety -nine dollars with the interest thereon, as aforesaid. A. and B., Attorneys. North Carolina, ) Iredell County. ) Samuel Tucker maketh oath that the several matters of fact set forth in the foregoing petition as of his own knowledge are true, and those as not of his own knowledge he believes to be true. Samuel Tucker. (Sworn to before the clerk of the superior court.) Return. To the Petition of Samuel Tucker, Praying a Mandamus against the Jus- tices of Iredell County. They, the said justices, make return, and for cause show respectfully to this honorable court that they, from the best of their knowledge and belief, in refusing the payment of the petitioner as alleged in his petition, have not acted in bad faith or unjustly towards him, and do not withhold from him a debt which in good conscience he can demand, but they have acted with a sole regard to their public and official duty to the county, and from a desire to protect it from an unfounded and iniqui- tous claim. They say it is true that at the November term, 1817, of their county court they made the order mentioned in the petition, and also that the petitioner undertook a contract to build a bridge on the South Yad- kin river according to specifications in writing (the substance of which is set forth below). They deny that the petitioner has built the said bridge in all things ac- cording to his contract and the said written specifications. They repre- sent that, from the best of their knowledge and belief, the petitioner built the said bridge with such gross negligence and wilful unskilful- ness that it is of no public utility whatever ; that owing to the frail and insufficient construction of the work, one end of the bridge had crushed the abutment upon which it was supported before the petitioner had fin- ished his woi-k; and in less than two months afterwards, the other end crushed the abutment upon which it was supported and sunk down, and that since then the greater part of the bridge has been carried off by the waters of the stream. These defendants show that in the petitioners contract it is specified that " the face wall of the abutment on tho south side of the river was to be started in the bottom of the river against a rock ; to be four feet 3S8 FORMS IN MANDAMUS; PROCEEDINGS. [§ 322. thick, tapered up twenty feet high, to be three feet thick at the top for the cope ; two side walls to be started fifteen feet from outside to outside ; to be three feet thick at bottom, tapered to two feet at top, and the space between the walls to be filled with rock and dirt to settle them ; and the abutment on the north side of the river to start forty-eight feet in the river, and to be constructed as the abutment of the south side." And they represent, from the best of their information and belief, that the face walls and side walls of the abutments were not built as specified in the terms of the contract, but that stone, without regard to their fitness in size or form, were so laid as fraudulently to present the face of the wall, when in truth, what represented walls were of unequal thickness and of a single stone, and varying with the size of the stone ; and instead of rock and dirt the abutments were filled in with loose sand. These constructions started in water, from foundations loosely placed in the mud and sand, instead of at the bottom of the river against the rock, and were raised on one side of the river to the height of twenty feet. These defendants represent, from the best of their information and belief, that these pretended walls, in many parts, did not exceed a foot in thickness, and were so frail as to be totally inadequate for the support of the bridge, and for this cause they crushed and the bridge sank down and was ren- dered impassable and useless. They further represent, from their in- formation and belief, that the timbers used in the construction of the said bridge were not such as are specified in the terms of the contract ; — were not all of heart timber, but large portions of material pieces were white pine or sap wood. The defendants show that the petitioner, in the several particulars mentioned as well as others, has violated the terms of his contract for building said bridge, and has no just demand for the payment of the stipulated price. The defendants show that the said bridge fell down and became useless from the deficiency of the execution of the work by the petitioner, and that it was not because of any defect in the plan of said bridge as contained in said specifications. Defendants further show that it is true that two of the commissioners appointed by them to make the contract for the building of said bridge did represent to them in writing that said contract was completed according to agree- ment, but such representation was untrue. The petitioner and the said commissioners knew at the time it was made that it was untrue ; they were all fully aware that the bridge in its construction was deficient in the particulars hereinbefore alleged, and that it was of little or no use to the public. These defendants are informed and believe that the said commissioners, before they would agree to make the said fraudulent rep- resentation to the justices concerning the structure of said bridge, know- ing it to be frail and wholly insufficient, required the petitioner to put a wooden pillar, consisting of two wooden posts, upright under the main wooden structure of the bridge to support it, and that said bridge was in this condition supported by such wooden posts when they made the afore- § 322.] FOKMS IN MANDAMUS PK0CEEDING8. 389 said representation to the defendants. The defendants believe and say that, with a knowledge that petitioner had not performed his contract, these commissioners with him fraudulently confederated to procure from these defendants an order for the payment of the stipulated price of the work, and in pursuance of this design they falsely made the above-men- tioned representation, by which the defendants were misguided and de- ceived, and induced to make an order directing the county trustees to pay the stipulated money. The defendants believe and represent that the said certificate of the commissioners was advised, counseled and ap- proved by the petitioner with a perfect knowledge on his part that the contract for building said bridge had not been substantially performed, and with the design of fraudulently taking and receiving money from the county without any just title to demand it These defendants state that at the next term of their county court they rescinded the aforesaid order (it being the first opportunity they had of so doing after learning that they had been imposed upon by the petitioner), and that said defend- ants believed at the time, and they still believe, that they had power and authority in law so to rescind their own order. These defendants state that they are not informed that any surrender of the bridge was made to them or the public by the petitioner, nor have they surrendered or dedicated it to the public use by any special act of their own; nor have they any knowledge or belief that the aforesaid commissioners accepted it, except as the above-mentioned certificate may be evidence of accept- ance. _ . E. P. and L. R, for Defendants. Personally appeared Thomas A. Allison, one of the defendants, in be- half of all the justices of the county of Iredell, and maketh oath that the several matters which are set forth in the foregoing return as of their own knowledge are true, and those not set forth as of their own knowl- edge are true to the best of their understanding and belief. Thomas A. Allison. Sworn to in open court. W. H. HayneS, Clerk.* Petition. To the Honorable the Justices of the Supreme Court of the United States : The petition of the Union Bank of Louisiana, a corporation duly estab- lished by the laws of the state of Louisiana, respectfully showeth : That on the 5th day of March, 1848, your petitioner filed its bill in the district court of the United States for the district of Texas against Josiah S. Staf- ford and Jeannette Kirkland Stafford, his wife, whereby your petitioner sought to obtain a foreclosure of a certain mortgage, held by it on cer- i The above petition and return considered that they might be used are taken from Tucker v. Iredell as models. (Justices), 1 Jones, 451, and the court 390 FOKMS IN MANDAMUS PROCEEDINGS. [§ 322. tain negro slaves, then in the possession of the said defendants ; but, at the hearing in the said court, and by the decree thereof, the said bill was dismissed. And your petitioner further showeth that from the decree of the said court, directing the dismissal of the said bill, an appeal was prayed by your petitioner to this court ; and at the December term. 1851, the said decree was reversed and the cause remanded to the said district court, with directions to that court to enter a decree in favor of your petitioner ; and, accordingly, such a decree was in fact rendered by the said district court, on the 25th of February, 1854, whereby it was in sub- stance directed that the sums accruing from the hire of the mortgaged slaves, while in the custody of the receiver, pendente lite, amounting to $25>379.39, should be paid by the receiver to the complainant, and cred- ited on the total amount found to be due by the defendants, and that in case the defendants failed to pay over the balance remaining due after such credit, amounting to $39,877.13 on the 1st day of July, 1854, they should be foreclosed of their equity of redemption, and the marshal should seize and sell the mortgaged slaves at public auction on the third day of the same month, or as soon thereafter as may be, after giving three months' notice, by advertisement, of the time, place and terms of sale, and should pay to the complainant, your petitioner, out of the pro- ceeds of such sale, the aforesaid sum of $39,877.13, in satisfaction of the debt accrued by the said mortgage. And your petitioner further showeth that, although it appeared by the said decree that the total amount due thereby to your petitioner was the sum of $65,256.52, yet the said district court thereafter, to wit, on the 7th day of March, 1854. in violation of the statutes of the United States, and of the right of your petitioner, allowed the said defendants to take an appeal from the said decree to this court, which should act as a supersedeas, upon their giving a bond in the penal sum of $10,000 alone, conditioned that they prosecute their said appeal with effect, and answer all damages and costs if they fail to make their plea good ; and when the said defendants had, on the day aforesaid, ten- dered such a bond with certain sureties thereon named, the said district court ordered, notwithstanding the objections interposed on the part of your petitioner, that the bond of appeal, so taken and filed, operates as a supersedeas to the decree of the said court hereinbefore set forth, all of which will fully appear by reference to the transcript of the record of the said cause, brought up to this court on the first appeal, and to the transcript of the subsequent proceedings in the said cause, filed in this court in support of a motion made on the part of your petitioner, at the present term, to dismiss the said second appeal, taken as aforesaid, by the said defendants. And your petitioner further showeth, that the action of the said district court, in ordering it to be entered that the appeal bond so taken operates as a supersedeas and stays the execution of the said decree, is contrary to law and oppressive to your petitioner; that unless this court interpose, a delay of one or two years must intervene before the decree can be car- § 322.] FORMS IN MANDAMUS PROCEEDINGS. 391 ried into effect ; and, meanwhile, the security for the final payment of the amount decreed to be due and payable to your petitioner is wholly insufficient, and much less than the amount required by law, and that your petitioner has no remedy save in the present application to this court "Wherefore your petitioner humbly prayeth that your honors would be pleased to order that a writ of mandamus, in due form, be at once issued from this court, returnable to the first Friday of the next term thereof, commanding and requiring the Honorable John C. Watrous, judge of the district court of the United States for the district of Texas, to cause the decree, so as aforesaid rendered by the said court, on the 25th day of February, 1854, to be at once carried into execution, according to the terms thereof, notwithstanding the appeal so taken by the said defend- ants, or, on failure thereof, to show to this court, on the said return day, why the same has not been done. And in support of this petition your petitioner refers to the transcripts hereinbefore mentioned, and to the records of this court in relation to the said cause, and will ever pray, etc. A. B., W. R, For the Union Bank of Louisiana. Answer. The United States of America, in the Supreme Court, December Term, 1854. Between Josiah S. Stafford and Jeannette K, his wife, appellants, and the Union Bank of Louisiana, appellee. The answer of John C. Watrous, judge of the district court of the district of Texas at Galveston, to the rule upon him to show cause why a peremptory mandamus should not issue, commanding him in said court to discharge the supersedeas to the enforcement of, and to order execution upon the decree rendered in said court, in favor of the said Union Bank of Louisiana, and against said Josiah S. Stafford and wife. The respondent respectfully answers and certifies to the honorable the supreme court of the United States, that on the 6th day of March, 1854, in the district court of the United States for the district of Texas at Gal- veston, which was within ten days next after the rendition of the decree mentioned in the caption to this answer, the said Josiah S. Stafford and wife, feeling themselves aggrieved by the rendition of the s.ame, in open court applied for and prayed an appeal to the next term thereafter of this court, to be held in the city of Washington on the first Monday in December thereafter, which to them was granted upon condition that they entered into good and sufficient bond, with good and sufficient se- curity, in the sum of $10,000, conditioned that they prosecute their appeal with effect, and answer all damages and costs if they should fail to make their plea good, and therefore, on the same day and year aforesaid, the 302 FOKMS IN MANDAMUS PROCEEDINGS. [§ 322. said Josiah S. Stafford and wife in open court tendered a bond, with L. C. Stanley, Patrick Kelly and William H. Clark as sureties, in the sum of $10,000, and the court, having inspected the bond, and being satisfied that it was in conformity to law and the order of the court, and that the sureties were good and sufficient, "it was ordered that the bond be ap- proved, and it was ordered to be entered that the bond of April, taken and filed in this cause, operates as a supersedeas to the decree of the court," and thereupon, and immediately after the order granting said appeal and the giving bond as aforesaid, and while the same re- mained in full force, unreversed and not set aside, this respondent respectfully submits that, neither in the said district court or in vaca- tion, had he any longer jurisdiction over the cause between the parties aforesaid, or any power or authority to make any order in regard to the supersedeas, or to enforce the execution of the decree aforesaid, for the reason that thenceforward, by virtue of the appeal so taken and per- fected as aforesaid, the said cause between the parties aforesaid had passed into and under the control of this court, and which was the proper forum only in which any such order could or can be rightly made. This respondent further respectfully submits that, though upon inves- tigation it should turn out that the bond given for the appeal as aforesaid was not taken in all respects in conformity to the requirements of the law, but might be irregular and depart from such requirements in re- gard to the amount of the penalty thereof or in other respects, yet this did not render the grant of the appeal merely void, or in any manner affect the supersedeas operated by law, but that the said appeal and the said supersedeas was, and continued to be, in full force and effect, and thus will remain until this court, in conformity to its practice, shall dis- miss said appeal, and thereby discharge said supersedeas on account of a failure by the said Josiah S. Stafford and wife, when thereunto re- quired, to give such bond as the law requires within such time as the court may prescribe. This respondent further respectfully submits, that the bond taken and approved, and upon which the appeal before mentioned was granted, was taken and executed in full, complete and perfect conformity to law, and had he power and authority, either in term time or vacation, to make any order in regard to said supersedeas or the enforcement of the decree aforesaid by execution, and an application were made to him for such order, by reason of the said bond not being in the penalty or to the amount required by law, he would feel himself constrained to refuse any such order. And these are the causes and reasons which this respondent has to offer why a mandamus should not issue to enforce a discharge of the supersedeas or an execution of the decree aforesaid. But he respectfully submits to the judgment of the court, and will en- force by order any direction given by the court in the premises. The respondent respectfully refers to the brief of the counsel of the said § 322.] FORMS IN MANDAMUS PROCEEDINGS. 393 Josiah S. Stafford and wife, which will be filed in this honorable court and the authorities therein referred to, in support and maintenance of the position assumed by this answer. John C. Watrous. 1 Alternative Writ of Mandamus. New Jersey, ss.— The State of New Jersey to James E. Goll, greeting : Whereas, it has lately been represented to our justices of our supreme court of judicature, on the part and behalf of the Newark & New York Railroad Company, that you, the said James E. Goll, were by the cor- porators of the said the Newark & New York Railroad Company, soon after the passage of the act entitled " An act to incorporate the Newark & New York Railroad Company," approved March 1, 1866, appointed secretary of said corporators, and that you, the said James E. Goll, con- tinued to act as such secretary until a board of directors of said com- pany was duly elected by the stockholders thereof, and duly organized, to wit, on the first day of June last; and that you, the said James E Goll, before and at the said time of the organization of the said board of di- rectors of the said company, held in your hands certain books, records and papers belonging to the said company, consisting, amongst others, of the books of minutes of the proceedings of the said corporation and stockholders and directors, and the subscription book, containing the signatures of the subscribers to the capital stock of said company, and their subscriptions to said stock, and the receipt books of the said com- pany ; that you, the said James E. Goll, after the organization of said board of directors of said company, refused to deliver up the said books, records and papers to the said company, and that from that time to the present time you have kept the said books, records and papers, and have refused to deliver them up, and still keep them, and refused to deliver them to the said company, or their board of directors, although the same have been demanded of you by the said company ; and that you, the said James E. Goll, also refuse to disclose or inform the said company where you have placed the said books, records and papers, and where you keep the same, although the said company have frequently, by their officers, requested you, the said James E. Goll, to inform them where the same are kept by you ; whereupon, we being willing that due and speedy jus- tice should be done in the premises, do command you, that immediately after receiving this our writ, you, the said James E. Goll, do deliver up to the said the Newark & New York Railroad Company, the said books, record and papers of the said company, or that you show cause in our supreme court of judicature, before our said justices thereof, on the fourth Tuesday of February next, why you have not done the same. Witness, Mercer Beasley, Esq., our chief justice, at Trenton, the twenty- sixth day of November, in the year of our Lord one thousand eight hun- dred and sixty-six. Chas. P. Smith, Clerk. i The above petition and answer are found in Stafford v. Union Bank of Louisiana, 17 How. 275. 394 forms in mandamus proceedings. [§ 322. Return. To the Honorable the Justices of the Supreme Court of Judicature of the State of New Jersey : James E. Goll, of the city of Newark, for return to the writ of alter- native mandamus heretofore issued by this court against him on appli- cation made by " The Newark & New York Railroad Company," says : That it is true that he was duly appointed secretary of said company, to wit, on the sixth day of March, one thousand eight hundred and sixty- six, and that he acted as such secretary from that time until the fifteenth day of May in the same year, but denies that he hath or ever held in his hands any books, records or papers belonging to said company, contain- ing the minutes of the proceedings of the meetings of said corporators of said company, or of its stockholders or directors, or any book belonging to said company, containing the signatures of the subscribers to the cap- ital stock of said company, and the receipt books of the said company. He admits that he has in his possession books, one in which he hath himself written the minutes of the proceedings of the meeting of the 6aid corporators, and of the same stockholders and directors, and another in which are contained the signatures of the subscribers to the capital stock of said company, and their subscription to said stock, and the re- ceipt books of said company ; but the respondent says that each of these books is his own property — was purchased by him with his own money, and that he has expended in said purchase the sum of one hundred and fifty dollars; and further, the respondent says, that even if the said company had a right to said books, or any of them, which he denies, he hath a right to the custody and possession thereof, as security to himself for certain moneys due him from said company, to wit, for the cost of said books, one hundred and fifty dollars ; for this deponent's services as secretary the sum of seven hundred and fifty dollars ; for use and occu- pation of respondent's premises by said corporators, directors and stock- holders, the sum of one hundred dollars. And the respondent insists that until he is paid what is due him as aforesaid, he cannot legally be required to deliver up said books. And this respondent further says, that the said company had no right to a writ of mandamus in this matter, because there is a sufficient rem- edy against this respondent for any wrong he has done said company otherwise, either by writ of replevin, action in trover or bill of discovery in equity, to answer all or any of which respondent is fully capable pecuniarily. And this respondent prays that such order may be made in the prem- ises as is lawful and right, and that the respondent may be hence dis- missed with his reasonable costs most wrongfully sustained. 1 February 26, 1867. James E. Goll. 1 The above written alternative thereto are found in State v. Goll, writ of mandamus and answer 32 N. J. L. 285. The answer was § 322.j fokms in mandamus proceedings. 395 Petition. Your petitioner, Rowland E. Evans, sufficiently shows to this court and states that on the 1st day of June, A. D. 1863, he was, and for a long time previously thereto had been, a member of the Philadelphia Club, which was incorporated by an act of assembly of this common- wealth, approved the 9th day of May, 1850, under the name of the Phila- delphia Association and Reading Room, with authority to elect officers, to establish by-laws for their government, and that the name of the said corporation was subsequent to such incorporation changed to the Phila- delphia Club ; that he was many years ago duly made a member of the said corporation, and that he has always since his becoming a member as aforesaid, until the time of the grievance hereinafter complained of, enjoyed the benefits and exercised the privileges of such membership, and has committed no act by reason of which he could justly be deprived of his said membership. That the said corporation owns certain real estate, consisting of a lot of ground in the city of Philadelphia, in the state of Pennsylvania, whereon is a building used as a club-house by the said corporation. That on or about the 9th day of May, 1863, he received a private notice stating that a special meeting of the said corporation would be held on the 1st day of June then next, to take into consideration the circum- stances of an alleged violation by Rowland E. Evans of his duty as a cor- porator, by being guilty of disorderly conduct within the walls of the club, in offering a blow to Samuel B. Thomas, one of its members, on the evening of the 24th of February. 1863, and the propriety of expelling the said Rowland E. Evans from his membership of the club, he having been heretofore, to wit, on the 7th of March, 1883, requested by the board of directors to resign from the club by reason of such conduct, and hav- ing thereupon refused so to do. By order of the board of directors, and signed M. Edward Rogers, secretary. That at a meeting so held on the 1st day of June, 1863, certain proceed- ings were had by which a certain number of the persons then and there present undertook to pass and passed a resolution to expel him from his membership of the said club, and to deprive him of his rights as a mem- ber and corporator thereof, and that he was subsequent!}' notified by the said corporation, by some one professing to act in its behalf, of his said expulsion or attempted expulsion and deprivation of membership in said corporation. That by reason of the premises his said attempted expulsion and dep- rivation was unjust, illegal and contrary to the rules and laws by which corporations are governed and controlled, and that he has been greatly adjudged insufficient, since by their turn was granted and a peremptory use the books had became the prop- writ was issued, erty of the corporation, and the re- 396 FORMS IN MANDAMUS PROCEEDINGS. [§ 322. wronged and injured in being deprived of his rights of membership of the said corporation as aforesaid. Wherefore your petitioner prays for a writ of mandamus to be directed to the said The Philadelphia Club, commanding it forthwith to restore him to the exercise of his rights of a member and corporator of the said corporation, or to show cause, if any it has, why he should not be restored to his rights as aforesaid. Return. Now comes the respondent, The Philadelphia Club, and files this its return to the petition of the relator herein. The respondent admits that it was incorporated, and that it has since changed its name as stated in the petition of the relator. The respondent further alleges that it had established certain by-laws for its internal discipline and for regulating the intercourse of its mem- bers, which said by-laws were in force at the times hereinafter men- tioned. That said by-laws provided that the affairs of the said corporation should be managed by a board of directors consisting of the president and six directors, who should be elected at the stated meeting in April in every year, who should have and exercise a general superintendence of the affairs of the corporation, control and manage its property and effects and enforce the preservation of order and obedience to the rules. That the said by-laws provided that if the conduct of a member should be disorderly or injurious to the interest of the club or contrary to its by-laws, the board should inform him thereof in writing, and, if the nature of the offense require it, should request him to resign ; and that should such information or request be disregarded, the board should refer the matter to the next stated meeting of the club, or to a special meeting to be called for the purpose, of which due notice should be given to the offending member ; at which meeting the circumstances of the case should be considered and the member might be expelled. That the sixty-eighth by-law provided that the board of directors, by a unanimous vote by ballot of all its members, might expel a member of the club for an infraction of either of the by-laws numbered 28, 58 and 73, or for intentional violation of the by-laws relating to the ballot, or for other gross misconduct, immediate notice of which expulsion should be given him. Such expulsion should be final unless reversed by a special meeting of the club, which, at the written request of the member so ex- pelled, made within thirty days thereafter, should be called by the board. A copy of the notice of the said meeting should be sent to the offender, who should have the right to be present and to be heard thereat. That the thirty-ninth by-law provided that all interest in the property of the club, of members resigning, or otherwise ceasing to be members, should be vested in the club. § 322.] FORMS IN MANDAMUS PROCEEDINGS. 397 That the by-laws regulating meetings of the club were and are, so far as respects the present case, as follows : The fourteenth provided that notice of any meeting of the club, whether stated or special, should be posted upon the notice board at least ten days before the time assigned for such meeting. The fifteenth provided that it should be the duty of the board to call a special meeting of the club upon the written request of ten members, and such a meeting might also be called whenever the board might (feem it expedient The sixteenth provided that the notice of a special meeting should specify the time and also the purpose for which it might be called, and such meeting should not consider or take action in any matter other- wise than that specified in said notice. The next provided that at any meeting of the club for action in the conduct of a member which might involve his expulsion, or for an alter- ation of the by-laws, one-fourth of the whole number of the members of the club should be a quorum. And the twentieth provided that a motion involving the expulsion of a member should be decided by ballot, and the decision of a majority should be final. The respondent annexes to this return a copy of all its by-laws, and prays that they may be taken as a part of this return. The respondent alleges that it owns no other real estate than its club- house. The respondent further alleges that the relator became a member of the said club in 1848, and thereby bound himself to the observance of such by-laws as the corporation had established or might from time to time establish for its government. That on the evening of the 24th of February, 1863, the relator was guilty of breaking the said by-laws by having an altercation within the walls of the said club-house, in a room in said club-house, wherein the said corporation was then in session, with Samuel B. Thomas, another of the members of said corporation, and by striking him a blow then and there. That an investigation of the said conduct of the relator by the board of direction of the corporation was had after due notice to the relator, and after hearing and considering all the circumstances of the case, as detailed in writing by the relator, by the said Samuel B. Thomas and by other witnesses of the transaction, the said board requested the relator to resign his membership of the club, which the relator refused to do. That the board of direction then called a special meeting of the said corporation to be held on the 1st day of June, 1863, and that the notice of said proposed meeting was posted upon the notice-board of said club- house for more than the ten days last prior to the said 1st day of June ; that the relator was notified in writing on the 19th day of May, 1863, 398 FOEMS IN MANDAMUS PEOCEEDINGS. [§ 322. of the said proposed meeting to be held on the said 1st day of June; that the said notice so posted on the said notice-board, and the said written notice given to the respondent, both specified that the said spe- cial meeting to be held on the said 1st day of June would take into con- sideration the circumstances of an alleged violation by Rowland E. Evans of his duty as a corporator, by being guilty of disorderly conduct within the walls of said club, and in the presence of a meeting of the said club, in offering a blow to Samuel B. Thomas, one of its members, on the evening of the 24th of February, 1863, and the propriety of ex- pelling the said Rowland E. Evans from his membership of the club, he having been heretofore, to wit, on the 7th day of March, 1863. requested by the board of direction to resign from the club, by reason of such con- duct, and having thereupon refused so to do. That at the meeting of the said corporation held on the 1st day of June, 1863, in accordance with said notice, over one hundred members thereof were present, the said corporation then having only two hun- dred and fifty members, and after an examination of the testimony of- fered and the hearing of witnesses on the subject which the meeting was called to consider, a motion to expel the said relator from his member- ship of the said corporation was made, and upon a ballot being taken thereon, sixty-eight votes were cast in favor of the motion and thirty- two votes were cast against the motion, and the said relator was there- upon declared by the presiding officer of said meeting to be expelled from his said membership. Wherefore, having fully answered, the respondent prays to be hence dismissed with its costs and charges. Reply. For reply to the respondent's return herein the relator denies that on the evening of the 24th of February, A. D. 1863, he had an altercation with one Samuel B. Thomas, or that he struck the said Thomas in a room in the said club-house, in which the said corporation was in ses- sion. The relator further denies that at the meeting of the said corporation which was held on the 1st day of June, 1863, as alleged in the respond- ent's return, any evidence or testimony was introduced or presented at the said meeting. 1 1 The substance of the foregoing in such cases, which are frequently petition and answer may be found presented to the courts. For in Evans v. Philadelphia Club, 50 further illustrations of the plead- Pa. St 107. The allegations have ings in mandamus proceedings been altered to suit the objections reference may be had to : Doo- urged by the litigants and by the little v. County Court, 28 W.Va. 158 court The case is introduced be- Com. v. Pittsburgh, 34 Pa. St. 496 cause of the particularity required Secombe, Ex parte, 19 How. 9 322.] FORMS IN MANDAMUS PROCEEDINGS. 399 People v. Walker, 9 Mich. 328; King v. Goodrich, 3 Smith, 388; Drew v. McLin, 16 Fla. 17 ; State v. Lawrence, 3 Kans. 95 ; Babcock v. Goodrich, 47 Cal. 488 ; State v. Lafayette Co. (Court), 41 Mo. 545 ; State v. Grand Island, etc. R R 27 Neb. 694 ; Lafayette (City) v. State, 69 Ind. 218; State v. Cincinnati (City), 19 Ohio, 178 ; State v. Zanes- ville, etc. Co., 16 Ohio St 308; State v. Aldermen (Act. Bd.\ 1 Rich. (N. S.) 30 ; Hawkins v. More, 3 Ark. 345; People v. Pearson, 2 Scam. 189; Taylor, Ex parte, 14 How. 3. INDEX. ABATEMENT: If respondent goes out of office, courts divided as to whether suit abates, § 238. If resignation alone does not vacate office, it may be disregarded, §239. See Death; Contempt; Officers. ABATEMENT (PLEA OF) : Waived by plea in bar, § 274. Contra, § 274, n. Pendency of civil suit involving same matters, not good as. § 278. Pendency of mandamus between same parties on same subject is good as, § 278. unless second writ necessary to protect rights, § 278. Plea that prior mandamus was quashed not good as, § 278. ACCOUNT : Mandamus lies to proceed in suit when court refuses till plaintiff files an account, which is not demandable, § 204. ACTION : In one state may ask mandamus when judgment obtained, § 245. ACTION (RIGHT OF): Often a bar to a mandamus, § 55. No bar, when will not compel the action desired, § 109. Is a bar to a mandamus — to compel court clerk to pay prosecuting attorney his fees, § 53. to enforce contract of county to pay bounty to volunteers, § 53. to make a corporation pay a dividend it has declared, § 53. to recover money expended by public officers, § 53. ACTION FOR DAMAGES : Formerly only remedy if return to alternative writ sufficient in law, § 4. If such action successful, peremptory writ issued at once, § 4 Generally right to such action will not bar a mandamus, § 53. See Waiver. 26 402 INDEX. ADMINISTRATION : Mandamus lies to grant administration to proper party, § 189. Mandamus refused to grant administration to A. pendente lite, % 201. Mandamus lies to probate court to proceed and settle the accounts of an administrator, § 204. Mandamus refused to settle accounts of an administrator, when an injunction against, § 204. ADMISSION: See Corporator. AFFIDAVIT : To motion for mandamus may be made by third parties. § 245. Affidavit and motion for mandamus may be one paper, § 246. Has not always been required to motion for mandamus, § 246. Affidavit to motion for a mandamus — should be entitled of the court, § 247. should not be entitled of a cause, § 247. contrary suggestion, § 247. if party should know the facts, should be positive, § 248. must be as positive as ordinary affidavit in a personal action, §248. forms no part of the record, § 253. Not required by common law to a return, § 283. Court may require to a return, § 283. Form of to a petition for a mandamus, § 318. See Title; Motion for a Mandamus. AGENTS: Cannot be the relators instead of public officers, their principals, § 231. AGREEMENTS : See Contracts (Private). ALABAMA: Interlocutory orders of courts reviewed by mandamus, § 199. ALDERMEN : Cannot by mandamus be seated as such, when by charter the com- mon council are final judges in such elections, § 313. ALTERNATIVE WRIT: In America order to show cause generally dispensed with, § 250. Court fixes time to make return to it, § 251. Corresponds with complaint in an ordinary action, § 253. Must have certainty to a common intent, § 254. Must contain necessary averments, but may be informal, g 254 Must state all facts necessary to give the right claimed, and justify the order asked, § 255. INDEX. 403 ALTERNATIVE WRIT (continued): Must show petitioner's interest, § 255. performance of all conditions precedent and mode of perform- ance, § 255. the facts imposing the duty on the respondent, § 255. that respondent still has the power, 255. that a mandamus will be efficient as a remedy, § 255. that relator has no other remedy, § 255. Every material fact must be set forth distinctly, fully and clearly, § 255. Facts must be alleged in an issuable form, § 255. Deficiency of allegations cannot be supplied by the return, 255. Must on its face show a good case, § 255. Allegations should be confined to such facts as are necessary to de- termine the rights of the parties before the court, § 255. If a legal liability has been judicially ascertained, sufficient to so state without alleging the circumstances showing, § 256. Necessary preliminary circumstances must be stated, § 256. If option allowed, cannot ask for one act without showing exercise of option impossible, § 256. Must show demand of performance or facts making it unnecessary, §257. Failure to aver demand, when required, fatal to proceedings, §257. Refusal to act, or facts equivalent to a refusal, must be alleged, § 257. Demand to act must be alleged with precision, § 257. When demand not necessary, refusal to act need not be alleged, § 258. When no direct refusal, may allege facts equivalent thereto, § 258. Must allege, or show by facts stated, that no other sufficient legal remedy, § 259. Mandatory clause must state the precise act required, § 260. Respondent cannot be required to look beyond the writ, § 260. Mandatory clause must not be larger than warranted by the recitals, §260. must not be larger than warranted by the statute. § 260. must demand no act which cannot be legally required, § 260. should not contain order in the alternative, § 260. objections to such ruling, § 260. may state acts required in general terms when necessary to avoid great prolixity, § 260. Should conform to petition, § 202. When granted on petition, court will mould as to relief, § 263. When granted after order to show cause, court will not mould as to relief, § 293. May be quashed if varies in substance from order of court, & 262. Allegations generally stated by way of recital, § 263. 404 INDEX. ALTERNATIVE WRIT (continued): Sometimes petition with order of court used as such, § 263. Must be properly entitled as to parties, § 264. When informal, an alias may issue, § 265. If adjudged defective, may be amended, § 271. Validity of, may be impeached on attachment for contempt, § 269. Form of, § 319. Illustration, § 322. See Amendments; Title; Exhibits; Motion for Mandamus; Re- turn to Alternative Writ. AMENDMENTS : Under early practice only allowed for formal defects, §§ 268, 293. Formal defects waived unless taken in limine, § 269. Alternative writ amendable, if adjudged defective, § 271. Return amendable if adjudged defective, § 287. Now allowed at any time to promote justice, § 294. Respondent cannot be forced to amend return, § 294. Peremptory writ alone is not amendable, § 294. Alternative writ may be amended, and then peremptory writ issued in conformity with it, § 294. On appeal allowed to amend alternate writ in lower court and then have peremptory writ, § 294. AMOTION : Means removal from office and not from corporate membership, §137. See Corporations (Public) ; Corporations (Private). APPEAL : Mandamus not granted in a cause where an appeal lies, § 53. Has been granted when appeal not sufficiently efficacious, §§ 53, 201. Inconvenient delay attending appeal, no ground for a mandamus, § 201. Mandamus lies to certify an appeal to the appellate court, § 80. When appeal suspends judgment, mandamus not granted to put one into office in accordance with the judgment, § 144. When appeal does not suspend judgment the appellant cannot have a mandamus to put him into office, though he has the certificate when the judgment was for the respondent, § 144 Mandamus not lie to compel allowance of appeal from interlocutory order of court, § 196. Mandamus lies to fix the supersedeas bond on an appeal, § 189. Mandamus lies to set aside wrongful dismissal of appeal from a non- suit, § 201. Cannot review judgment by a mandamus, when no appeal allowed, §202. because of failure to appeal in time, § 201. INDEX. 405 APPEAL (continued): Mandamus lies to grant an appeal, when party entitled to it, § 208. If mandamus issued to grant appeal, it will require performance of all acts necessary to make appeal efficacious, § 208. In such cases, if necessary, the court will be ordered — to make a nunc pro tunc order, § 208. to record the allowance of the appeal, § 208. to allow appeal from probate of codicil of a will, § 208. to make out and deliver the transcript, § 208. to examine appeal bond and grant a supersedeas, if suffi- cient, § 208. Mandamus lies to compel court to entertain an appeal, if it im- properly refuses, § 203. If appeal improperly dismissed, does mandamus or appeal lie, § 205. mandamus does not lie, if such dismissal is considered a final judgment, §§ 205, 206. a mandamus lies, unless another remedy or the decision is by law intended to be final, § 205. Mandamus lies to an officer to obey decision of his superior officer, to whom an appeal was taken from his decision, § 31. APPEAL IN MANDAMUS PROCEEDINGS: Prior to statute of 9 Anne no appeal allowed, § 304. Now allowed in England if return is traversed, or there is a verdict or a judgment on a demurrer, § 304. In America always allowed, if action of court considered a final judgment, $ 305. There must first be a final judgment, § 305. Appeal has been allowed — when peremptory writ allowed on the pleadings, § 305. when peremptory writ issued, the respondent declining to plead after demurrer to petition overruled, § 305. when proceedings dismissed on hearing of application or of order to show cause, §§ 305, 306. There must be a court with appellate jurisdiction of cause, § 308. See Supersedeas. APPLICATION : See Demand. APPROPRIATIONS : Mandamus not lie to state officers to pay out money in the absence of an appropriation, £§ 89, 104, 105. Mandamus not lie to state officers to pay out money which the state has otherwise appropriated, § 89. "When law fixes salary and directs its payment, no annual appropri- ation necessary. § 104. APPROVAL : Mandamus not lie to do an act, when no duty to do it, unless another party approves, § 58. 40(> INDEX. ARBITRATION : Arbitrators not required by mandamus to proceed to arbitrate, § 16. compelled to select an umpire, §§ 24, 35. A witness compelled to make affidavit to a submission to arbitra- tion, § 24. See Private Parties. ARREST : Mandamus lies to court to cause release of party improperly arrested on civil process, § 189. Mandamus not lie to release party committed to jail, or required to give bond, on a charge of crime, § 209. Mandamus not lie to release one alleged to be improperly detained under order of court, § 209. ASSESSORS OF TAXES : Required to do their duty, § 127. to assess all property subject to taxation, § 127. to assess taxes as increased by board of equalization, § 127. to enter in assessment book prior delinquent taxes, § 127. to charge assessment to proper party, § 127. to assess a school tax, as determined by proper authorities, § 127. to include in taxes claims allowed against county, § 127. not to assess increased taxes imposed by illegal board of equali- zation, § 127. to assess to return taxes wrongfully assessed and paid, § 127. Not required to assess taxes, if in excess of the law, § 127. Mandamus not lie to them, when no longer have control of the as- sessment, §§ 75, 127, 241. Not required to make the legal oath to the assessment rolls, when they return they cannot truthfully do it, § 60. Must accept governor's interpretation of the law, when not judicially determined, unless plainly wrong, § 127. Not subject to mandamus in acts calling for discretion and judg- ment, § 127. ASSIGNEE : Assignee of part of a debt cannot compel public officers to issue a warrant to him, § 111. A SSOCI ATIONS : See Societies. ATTACHMENT : Lies for disobedience of writ of mandamus, §§ 2, 298. May issue to compel a return to the alternative writ, § 266. May issue when no return made to peremptory writ of mandamus, §298. If clear no intentional contempt, an alias peremptory writ may issue, §297. INDEX. 407 ATTACHMENT (continued) : Is sought by motion, supported by affidavits, § 298. Court grants an order to show cause why an attachment should not issue, § 297. If the return to the alternative writ is made to avoid the justice of the court, a rule may issue to show cause why an attachment should not issue for contempt of court, § 284. On attachment for contempt, may impeach validity of the alterna- tive writ, § 269. Mandamus allowed in Alabama to review action of court relative to quashing an ancillary attachment, § 199. If a corporation disobeys, the writ issues against the individuals who disobey the writ of mandamus, § 303. Officers of board or corporation who are in office when the writ issues must obey, and they are liable to proceedings for contempt, §303. Only one attachment should issue against all the officers, § 303. If a board disobeys the writ, and several members are willing to obey it, a disputed question whether all should be attached, § 303. In Alabama a mandamus may be granted to review the action of the court in granting or setting aside an attachment for a witness, §199. In Michigan a mandamus was granted to vacate an order quashing the attachments of defendants in a suit, § 200. See Contempt of Court ; Order to Shcw Cause Why Attach- ment Not Issue. ATTORNEYS : Mandamus lies to restore disbarred attorneys, § 195. unless the court had a discretion, § 195. Attorneys disbarred may be so restored — if the court went outside of its discretion, § 195. if the proceedings were irregular or against law, § 195. if the court was without jurisdiction, § 195. if there was flagrant injustice, § 195. if the court's action was erroneous or a mistake, § 195. if the judgment is too severe, § 195. Mandamus lies to admit one to be an attorney, when the right is given by law, § 195. A return by its attorney is not the return of a county court, § 282. A mandamus will not lie to county officers to pay an attorney em- ployed by them without authority of law, § 111. ATTORNEY-GENERAL : Represents the government in mandamus proceedings, § 229. Cannot be required to file a quo warranto when he is allowed a dis- cretion about filing, § 33, 4-OS INDEX. AUDITOR: Can be required by a mandamus — to audit a claim properly allowed, § 126. to issue his warrant for a properly allowed claim, § 126. to place proper assessments on a tax duplicate, § 31. to pass on a claim, when discretion therein is given to him, 55 126. to pass on each item of an account, § 126. to draw a warrant, though the funds have been improperly ap- plied, § 126. to correct his books, if the funds are improperly credited, § 126. to audit an officer's salary account, § 136. to issue a warrant, if a prior one did not reach the creditor, § 126. to perform any other ministerial duty, § 126. Cannot be required by mandamus — to issue his warrant for claim not properly allowed, § 126. not legal, § 126. where allowance has been reversed, § 126. to allow a claim as of a certain amount, when discretion given him, § 126. to audit a claim till it has been properly allowed, § 126. to audit a claim, unless such is his duty by law, § 126. to audit a salary fixed and adjudicated by law, § 135. He cannot review an allowance already legally made, § 126. Auditor of a city cannot refuse to draw his warrant, when the legis- lature authorizes the city, and the city wishes, to pay the account, although originally contracted ultra vires, § 126. Can an auditor be required to draw his warrant, when there are no funds on hand? Controverted, § 126. AUDITOR OF STATE : Has been required by a mandamus — to issue his warrant for an officer's salary, § 105. to transfer and fund state bonds, § 105. to publish statements of insurance companies, § 105. to advertL«e for public printing, § 105. to issue notes to a bank, § 105. to issue his warrant for a claim legally allowed, § 105. If doubtful about a claim, he may wait for a mandamus, § 105. Cannot alter amount of a claim settled by his predecessor, § 105. Must recognize the de facto officer, holding the commission, § 105. His discretion only reviewed in a case of clear and wilful disregard of duty, § 105. Must recognize as member of legislature the party holding the proper certificate, if no contest pending in legislature, § 107. Cannot be required to draw his warrant if no appropriation, § 105. controverted, § 105. INDEX. 409 AUDITOR OF STATE (continued): Cannot be required to draw warrant, if appropriation exhausted. §105. See Executive Officers; Salaries; Warrants. AWARDS : To enter as judgment of court, mandamus issued, § 189. B. BAIL: Mandamus refused to decide amount, § 187. BAILEE : Mandamus will not go against a private bailee, § 23. BANKRUPT : Mandamus issues to his commissioners to issue warrant for his ex- amination, § 204. BIDS FOR PUBLIC CONTRACTS: Mandamus issued to let contract to lowest bidder, § 117. for county buildings, § 117. for state printing, § 117. for supplies for county, § 117. Mandamus refused, when law to let to lowest bidder is directory, §117. because bidder has no clear legal right to it, § 56. when public interests required new advertisement, § 66. when officer allowed a discretion, § 117. because law gave discretion — when bid deemed excessive, § 117. when bidder required to be responsible, § 117. when bidder required to give adequate security, § 117. when right reserved to reject all bids, § 117. when contract required special skill, § 117. when bid not lowest according to amount required, § 117. See Contracts. BILL OF EXCEPTIONS: Mandamus lies to judge to sign, § 190. Not lie to one who acted as judge only by consent of parties, §§ 23, 193. Not lie to judge, if predecessor tried case, § 194. if he has resigned or term has expired, §§ 193, 241. Exceptional cases, §§ 78, 193, n. The bill should accompany the petition, §§ 190, 261. Decision of judge final as to correctness of bill, § 190. Judge cannot be required to sign a particular bill, § 32. Writ will not direct judge how to frame it, § 190. 410 INDEX. BILL OF EXCEPTIONS (continued): Writ refused if judge returns that he has already signed a bill, § 190. Affidavits ordered stricken from files may by mandamus be inserted in the bill, § 190. Bill should in good faith profess to contain all the evidence, § 190. Proper course to pursue in preparing bill, § 190. Writ granted if judge admits bill to be correct or has acted on it as correct, § 190. Bill must be presented in time allowed by law unless the time ex- tended by order entered of record, § 192. When not signed in time by judge's fault, mandamus lies to sign, §§ 50, 80, 192. opposing party's fault, 192. When judge can decide whether delay excusable, mandamus not lie, §192. Writ refused if bill incorrect, illegible, disorderly erased or interlined, §190. if prisoner has escaped after conviction, §§ 68, 194. if law provides another remedy, §§ 53, 194. to erase alterations made by judge after signature, §§ 23, 194. Application to obtain under statute of Westminster, § 191. BOARDS : Mandamus lies against, by a member thereof, § 231. to accept as a member one elected as such, § 142. Mandamus refused to compel acceptance as a member of one elected as such if it has already recognized another party as such, § 143. Return should in form be the return of the board, § 282. Individual members cannot put in their own returns, § 282. A majority can make a return in the name of the board, § 282. If it cannot agree on a return court will compel an agreement, § 282. Of two returns court will decide which is the true one, § 282. BONDS (MUNICIPAL) : Mandamus lies to deliver public bonds to officers entitled to their custody, § 135. Mandamus lies to pay interest thereon out of a certain fund accord- ing to statute, § 135. Mandamus issued to deliver county bonds to a railroad, § 111. to deliver county bonds to a contractor, § 111. to president of a village to sign its bonds, § 111. Not required to issue in accordance with vote, when notice of elec- tion irregular, § 111. six years after were demandable on account of laches, § 87. to sell, when option allowed about selling, § 110. See Taxes (Levy of). INDEX. 411 BONDS (OFFICIAL): Whether approval of, is judicial or ministerial, depends much on local law, § 118. If approval of is a judicial act, mandamus refused ; if ministerial. granted, §§ 31, 32, 118, 153. Writ will not issue to accept bond when filed after time allowed, §123. Refused to compel acceptance after office declared to be vacant, § 187. When pleading an official bond, averments are necessary showing that it complies with the law, § 256. See Appeal ; Prima Facie Title ; Supersedeas. BOOKS (PUBLIC) : Mandamus lies to compel their production, § 14 To obtain inspection, relator must show in petition an interest in such documents, and his good faith, § 14. Not necessary to make any showing when law allows inspection as a right, § 14. Not necessary to make any showing when intent of law to allow in- spection to prevent fraud, § 14. Mandamus lies to obtain possession of by party entitled to, §§ 154, 155. Officer having the commission may obtain possession of by this writ. §§ 23, 142. Mandamus lies to late incumbent to obtain books of his office, § 78. Writ not lie to obtain public books from a private party, § 156. Respondent must be an officer, the late incumbent or executor or widow of an officer or of the late incumbent, or one claiming to act as such officer, §§ 24, 156. The writ lies to compel the production of public books at corporate meetings, §§ 109, 155. This writ lies to compel their submission to legal inspectors, § 155. the making of entries therein in the manner the law requires, §109. their deposit as required by law, § 155. Books containing the public accounts become public books, though other entries are made therein, § 155. See Buildings (Public) ; Insignia ; Jail ; Paraphernalia ; Prima Facie Title. BOOKS (PRIVATE CORPORATION) : Director can inspect as a matter of right, § 161. Corporator can obtain an inspection by mandamus, § 161. Not granted to a corporator for curiosity, speculative purposes, etc, §161. Corporator must show good motive and object, unless the law al- lows him ao inspection as a matter of right, § 161. 412 INDEX. BOOKS (PRIVATE CORPORATION) (continued) : A creditor may by mandamus obtain an inspection wben the law gives him the right, § 161. An officer will by this writ be compelled to deliver such books to his successor, § 165. Books used by officer to make corporate entries become corporate books, §§ 161, 165. No matter how such books are kept they are subject to inspection, §161. The custodian of the books is the proper respondent, § 334. Directors may be joined as respondents if custodian acts under their orders, § 334. By statute a mandamus allowed to obtain the books of the local superintendent for a foreign corporation, § 22. BOUNTIES : See Volunteers. BRIDGES (PUBLIC): Mandamus lies to county officers to appropriate money to build a bridge, § 111. to build a bridge as required by statute, £111. to repair bridges kept open for public travel, § 116. Duty to keep a bridge in repair includes rebuilding when necessary, §116. When discretionary whether or not to build or rebuild a bridge, mandamus not lie. §§ 33, 116. Mandamus will lie to repair a bridge, but will not indicate the mode or time of repairing when discretion allowed therein, § 116. A private corporation cannot be compelled by mandamus to fulfill its contract to keep a bridge in repair, § 16. BUILDINGS (PUBLIC): Mandamus lies to obtain possession by officer entitled to custody, §§ 142, 154, 155. Writ lies to levy a tax to pay for their construction, § 129. See Prima Facie Title. c. CANVASSING BOARD : See Elections (Canvassers of). CASUS OMISSUS: Mandamus will not lie to enforce, § 60. CERTIFICATE OF ELECTION : Mandamus lies to issue, although already given to another, § 182. when decision for relator has been sustained on appeal by equally divided court, § 181. Mandamus refused, when not disputed that relator ineligible, 180. See Commission; Elections (Canvassers of). INDEX. 41:5 CHANCERY: See Equity. CLERK OF COUNTY BOARD : See County Board (Clerk of). COLLECTORS OF REVENUE : Mandamus lies to, to discharge their duties, § 133. to make tax deeds, § 133. to pay school taxes to proper officers, § 134. to pay taxes collected for railroad bonds to the proper officers, § 134 Such duties must be officially imposed on them, § 133. COMMISSION : One holding the commission has prima facie right to the office, § 142. can by mandamus obtain admission to office, § 142. Rights of one holding commission can only be questioned in quo warranto or contest for office, § 142. Cannot obtain by mandamus admission to office, pending an appeal on contest for office, decided against him, if appeal does not sus- pend the judgment, § 144. See Boards ; Certificate of Election ; Prima Facie Title. COMMISSIONER OF PATENTS : See Patents (Commissioner of). COMMISSIONER OF PENSIONS : See Pensions (Commissioner of). COMMISSIONER OF STATE LAND OFFICE: See State Land Of- fice (Commissioner of). COMMON CARRIERS: Mandamus lies to, to treat all alike, §§ 25, 162. See Irrigation; Railroads; Telephones; Public Use. COMMON LAW: Generally adopted in America, §§ 6, 285. A sufficient common-law remedy bars a mandamus, § 51. COMPTROLLER OF STATE : Mandamus lies to enforce duties specifically imposed on him, § 104. Mandamus not lie when discretion and judgment allowed him, § 1U4. Mandamus issued to audit account of legislator, § 104. to issue his warrant, § 104. to allow inspection of his records, § 104. If in doubt as to party or his duty, may await a mandamus, § 104. See Appropriations; Executive Officers; Salaries; War- rants. CONCILIUM : Under early practice took the place of a demurrer, § 268. If alternative writ good on concilium, peremptory writ issued, § 268. If return good on concilium, judgment for respondent, § 268. If return bad on concilium, peremptory writ issued, 268. Concilium ordinarily preferred to motion to quash, § 268. See Demurrer. 414: INDEX. CONGRESSMAN: Mandamus lies to canvass returns of election for congressman, as provided by state law, § 183. CONSTITUTIONAL LAW: Will constitutionality of law be passed on in mandamus proceed- ing? Disputed question, § 65. Ministerial officer cannot in mandamus proceedings raise the ques- tion of constitutionality of a law, § 65. The extent of the application of a mandamus relative to an existing debt may be increased, § 20. Law cannot take away right to compel by a mandamus levy of tax to pay a debt already contracted if there is no other adequate specific remedy, § 20. CONTEMPT OF COURT: Mandamus not lie to compel court to punish for, § 187. not lie to compel court to rehear proceedings for contempt after a discharge on the hearing, § 187. granted in Michigan to vacate an order punishing for contempt of court, § 200. Officers of a corporation individually liable for disobedience of a man- damus by the corporation, § 237. If all of a board are attached for disobedience, court will not punish those willing to obey, § 303. Successor in office of the respondent must be notified of proceedings before he can be punished for contempt, § 238. Parties must have actual notice of proceedings before adjudged guilty of contempt, § 303. Party to suit presumed to have notice of all the proceedings, § 303. If court had jurisdiction, contempt to disobey though decision erro- neous, § 302. If no jurisdiction, no contempt, and party, if committed, may be released on habeas corpus, § 302. Punishment is usually a fine and committal to prison till fine paid and order obeyed, § 302. Court may include as costs a fair compensation to relator s attor- neys for services in the contempt proceedings, § 302. If on attachment respondent returns obedience to writ, relator may traverse such return, g 302. CONTINUANCE : Mandamus issued to court to proceed with a cause which it contin- ued without a proper showing, 204. CONTRACTS (PRIVATE): Mandamus will not he to enforce, § 16. Statute may however so provide, § 16. INDEX. 415 CONTRACTS (PRIVATE) (continued): Mandamus will lie to enforce when it is a public trust or official duty, § 16. Form of contract cannot confer a right to this writ, §§ 16, 174, 210. Object sought immaterial as to right to this writ, § 16. CONTRACTS (PUBLIC): Mandamus not lie to let a public contract, when officer allowed dis- cretion about letting or as to certain requirements, §§ 110, 116. Mandamus refused to let contract to bidder, § 16. to let contract to bidder, when work changed, § 117. to let contract to bidder because bidder has no absolute right to it. §§ 117, 229. See Bids. CORPORATIONS : Writ of mandamus against a corporation should run against the cor- poration by name, or the officer or select body thereof whose duty it is to do the act desired, or against both jointly, § 237. If the writ runs to the select body, it should give the titles of such officers, with or without their individual names, § 237. Objections as to mode of specifying the respondents must be taken in limine, § 237. In such cases no change of members will affect the proceedings, § 240. The officers who disobey the writ can alone be punished for con- tempt, § 237. In such cases doctrine of discontinuance does not apply as to officers not served, § 237. Those in office when writ issues must obey it, § 240. When corporation abolished, only remedy is by application to the legislature, § 240. When alternative writ is directed to a corporation or a board, the re- turn should be in form its return, § 282. Return by individual members personally is not proper, § 282. See Contempt of Court. CORPORATIONS (BENEVOLENT): Mandamus lies to levy assessment to pay death losses, § 174 When liability is denied, suit must first be brought, § 174. When agreement is to pay amount of assessment, suit must first be brought to determine amount of assessment, § 174. When agreement to pay a certain sum on death, the remedy is by suit, § 174. Mandamus not lie to levy assessments in excess of the allowance of laws of the corporation, § 174. See Ecclesiastical Tribunals; Visitor. 4 1 6 INDEX. CORPORATIONS (FOREIGN) : Questionable whether a mandamus runs against, § 177. Under statute a mandamus has issued against its agent, § 177. CORPORATIONS (PRIVATE) : Mandamus against formerly refused in England, § 22. Now mandamus runs against all corporations, §§ 28, 157, 158. Can have a mandamus to obtain its books, § 24. Mandamus issued against — to pay taxes assessed on its capital stock, § 159. to submit their affairs to an examination, § 159. to furnish names of stockholders to tax assessors, § 159. to allow owner of a lot in a cemetery to bury a colored person therein, § 159. Mandamus will not lie where there is another remedy, § 163. Mandamus not lie to pay a dividend it has declared, § 163. Cannot be required to file a tax statement, when upon default it is duty of county auditor to make it, § 53. Will not be compelled to show its list of stockholders, when not sought for a proper purpose, § 68. Will not be required by mandamus to make a transfer of its stock on its books, § 160. such transfer has been compelled by some courts, §§ 54, 160. under special statutes such transfer compelled, § 160. equitable transferee cannot compel such transfer on the books, §56. When unable to discharge its duties, quo warranto is the proper remedy, § 176. See Corporators (Private Corporations) ; Books (Private Cor- porations); Ecclesiastical Tribunals; Officers (Private Corporations); Public Use; Visitor. CORPORATIONS (PUBLIC): May have a mandamus to obtain its books, § 24. May by mandamus compel officers to produce their books at their meetings, § 109. May be by mandamus compelled to perform any ministerial act, §108. Mandamus lies to enforce a judgment against, § 130. Cannot in mandamus to pay, or to levy a tax to pay a debt due the state, set up a debt due it from the state, § 89. Mandamus not lie to pay damages accruing, while hesitating whether to abandon condemnation proceedings, § 135. Power to disfranchise a corporator must be expressly authorized by law or by prescription, unless he has been convicted of a felony, s 137. INDEX. 417 CORPORATIONS (PUBLIC) (continued): If a corporator has been wrongfully disfranchised, he may be re- stored by this writ, § 137. Party having proper qualifications may have a mandamus to admit him as a member, if the duty is imperative on the officers, § 137. Mandamus will lie to count the votes cast at an election, § 139. The mayor with the consent of the majority of the burgesses should make return to an alternative writ for a municipality, § 282. Writ refused to give bonus to a railroad, when bribery used to con- trol the vote therefor, § 68. See Books (Public) ; Subscriptions ; Visitor. CORPORATORS (PRIVATE CORPORATION): May be restored by mandamus, when wrongfully expelled, §§166, 167. Not necessary that pecuniary interest should be involved, §§ 49, 167. Before expulsion a corporator must have — notice of the charges, § 168. a full opportunity to be heard, § 168. opportunity to be present at the taking of testimony, § 168. opportunity to examine the witnesses, § 168. Expulsion must be by body of corporators, unless charter otherwise provides, § 168. The charges must be covered by the law as to the offenses, § 168. Mode of expulsion must conform to the rules, § 168. Legal grounds for disfranchising a corporator, § 166. Joint-stock company must have express power to disfranchise, § 16G. Corporator cannot be disfranchised — for villifying another member, § 166. for not submitting business controversies to arbitration, § 166. for not paying unnecessarily increased dues, § 166. for not acting on committees, § 166. for not obeying improper by-laws, § 166. from private revenge. § 1 66. from religious intolerance, § 166. from political proscription, § 166. Disfranchisement must be ordered in good faith, § 166. Court will construe by-laws, and sustain them, if praoti -able, § 166. Record of expulsion should show all the proceedings, § 170. Must be some one to pass on the facts, § 168. exception in mutual assessment insurance associations, § 168. Copies of charter and by-laws usually filed with the petition or with the return, § 261. Mere irregularities, leading up to expulsion, not vitiate the proceed- ings, § 170. Expelled member must first appeal to corporate tribunals, § 169. unless no jurisdiction to expel on charges preferred, § 169. 27 ' 4 1 8 INDEX. CORPORATORS (PRIVATE CORPORATION) (continued): Mandamus will not issue, if liable to be regularly expelled on those charges, § 170. Mandamus will lie to admit as a member one having the necessary qualifications and entitled by law to be admitted, § 172. Writ will not issue to admit as a member one who may be regularly expelled for offenses then existing, § 170. Great certainty required in return to alternative writ to restore an expelled member, § 275. Return must state all the facts necessary to show that the removal was legal, in proper manner, and for good cause, § 275. If the expulsion was not at a regular meeting, the return must show that notice, general or special, was given to all members, § 275. If the expulsion was regularly conducted, the court will not re- examine the merits, §§ 166, 275. See Waiver. COSTS : Are awarded in the discretion of the court, § 310. Are generally awarded to the successful party, § 310. Mandamus will not lie to make a court alter its decision as to costs in a suit, § 187. Mandamus will not lie to a court to set aside a dismissal for failure to pay costs, § 201. COUNCIL (CITY): Mandamus will run to the council of a city — to open a street already laid out, § 113. to act upon nominations submitted by the mayor, § 113. to approve a plat of land laid out in the city, § 113. to fix the amount of official bonds, § 113. to meet in joint session to appoint certain officers, § 113. to canvass an election and pass an ordinance therefor, if neces- sary, § 139. to pass an ordinance to create a fund to erect a market, § 113. to agree on an ordinance for levying a certain tax, § 35. A mandamus will not be granted to compel aldermen to attend the meetings of the council, §§ 69, 113. Will not be required by mandamus to elect officers, when the terms thereof have expired before the hearing, § 77. The writ will not issue, when a discretion allowed about doing the act, § 110. See Tax (Levy of). TOUNTY OFFICERS (MANAGING BOARD) : Mandamus lies to them to discharge duties imposed by law, § 111. only to perform acts authorized by law, § 111. INDEX. 4 1 9 COUNTY OFFICERS (MANAGING BOARD) (continued): They have been required by the writ of mandamus — to accept the lowest bid for a contract, § 111. to approve an official bond, § 111. to correct an erroneous assessment and refund the money paid, §111. to refund money paid as a fine after reversal of the judgment. § HI. to admit a deed to record, § 111. to divide a township, §111. to pass on claims against the county, g§ 32, 36. to audit accounts against the county and issue warrants. § 111. to reconvene and declare a resolution carried which was declared to be defeated. § 111. to determine the sheriff's fees for collecting taxes, § 111. to fix rate of charges for water for irrigation, §111. to summon a jury to assess damages for condemnation of land, §111. to hear and adjust the sheriff's claim for fees, § 111. to provide a house of refuge, § 111. to build and complete a public building, § 111. to renew a ferry license, when they refused from mistake of law, § 39. Mandamus will not lie when they are called on to act judicially, §§ HI, 112. Mandamus will be refused, wlien appeal lies from their action, §53. "When another remedy is allowed, no mandamus will lie, § 54. They cannot be compelled to require towns to pay for the wrongful acts of town officers, § 111. Mandamus not he to them to enter judgment on a claim against the county, when the matter pending on appeal in a higher court, § 111. Though they have a discretion about repairing roads, a mandamus will lie if they wholly neglect to repair, § 39. They have been held to be acting judicially — in granting a ferry license, when there were two applicants, §112. in appointing collectors of taxes, § 112. in deciding whether a petition was signed by enough legal voters, § 112. in dismissing a petition for want of prosecution, § 112. Their attorney cannot make a return to an alternative writ in their stead, § 282. See County Board (Clerk of). 42) INDEX. COUNTY BOARD (CLERK OF) : A mandamus will lie to — to sign an order on the county treasurer, § 121. to transfer records and suits to another county, § 121. to issue a tax deed, § 121. to put the county seal on a county warrant, § 121. to report his fees, § 121. to record the acts of the county commissioners, § 121. It will not lie to correct the records of the county commissioners, §121. See County Officers (Managing Board). COURT, CLERK OF: Mandamus has issued to compel him — to issue a citation, § 86. to issue a writ of assistance, § 86. to make out a transcript, § 86. to receive and file a bond, § 86. to furnish copies of his records, g 86. to issue an execution, g 86. but not if the judgment is ambiguous, § 122. Writ will be refused, when there is another remedy, § 122. when suit on his bond will compensate, g 122. Writ generally refused, when his court can compel him to act, §§ 86, 122. COURT (DISTRICT OF COLUMBIA SUPREME) : Can issue an original writ of mandamus, § 217. COURTS : Entirely independent of executive and legislative departments, g 91. Common-law courts issue the writ of mandamus, g 213. Writ issued by common-law courts of highest original jurisdiction, §213. Courts decide what acts are judicial and what ministerial, g 108. Mandamus runs against inferior courts as to ministerial acts, § 186. Mandamus lies to inferior courts to compel judicial action, when such action is a duty, g 189. This writ will issue to such courts — to hold terms thereof, g 189. to take jurisdiction of a cause when wrongfully declined, g 36. to proceed in a cause when it wrongfully refuses, g§ 203, 204. to proceed in a cause when it has wrongfully postponed the hear- ing, g 204. to render judgment, if there has been unreasonable delay in so doing after submission of cause, § 204. Judicial action will be ordered, but will not be controlled, §§ 32, 187. INDEX. 421 COURTS (continued): Mandamus will not lie to review, reverse or correct errors in judicial acts, § 187. See Judicial Acts. Mandamus will not lie to review interlocutory orders of courts, - § 196. Remedy is by appeal or writ of error, § 196. See Appeal. Interlocutory orders may be reviewed by this writ in Alabama, §199. in Michigan, § 200. in Louisiana, when necessary to prevent irreparable injury, § 198. If a court on a plea to the jurisdiction dismisses the suit, appeal or writ of error, and not mandamus, is the remedy, § 203. A court will be compelled by this writ to obey the decree of the ap- pellate court, § 189. A court will not grant this writ to enforce the process of an inferior court, except in cases of urgent necessity, § 84. Courts cannot control public funds in the hands of officers against the political power in administering the public finances, § 89. When action is discretionary, mandamus will not lie to a court, £ 33. A mandamus may run to an inferior court to review its judicial action — in England to some very subordinate courts, ^ 39. when a superior court has supervisory control over it, § 39. when fraud or prejudice has influenced such action, §§ 40, 41. When referred to, records of courts should accompany the pleadings in mandamus as exhibits, § 261. See Appeal; Bill of Exceptions; Judicial Acts; Judgments; Jurisdiction; Docket; Eminent Domain; Oaths; Records; Supersedeas Dockets. COURTS (APPELLATE): Unless court has appellate jurisdiction of the matter, it will not by mandamus review the action of another court. § 313. On appeal in mandamus no new defense can be urged, § 307. If entitled to writ at the time, judgment will be affirmed, though was not entitled to the writ earlier, § 307. COURTS (FEDERAL CIRCUIT) ; Can issue mandamus only in aid of a jurisdiction already acquired, §217. except by statute against Union Pacific Railway, § 217. Can issue the writ to district courts only in aid of their appellate jurisdiction, § 217. Can compel municipalities to levy taxes to pay their judgments. £ S\ 7. Such levy of taxes is merely a mode of enforcing a judgment § 217. 422 INDEX. COURTS (FEDERAL CIRCUIT) (continued): Can issue tins writ to all state officers, except judicial, § 219. Can use the same remedies as the state courts, § 219. Cannot prevent state courts from controlling their inferior courts, §220. Their process cannot be interfered with by state courts, § 219. As being original process they cannot issue a mandamus — to compel a register of a land-office to issue a certificate of pur- chase, § 217. to make state officers levy a tax to pay bonds, § 217. to compel a state officer to issue a certificate for taxes improp- erly paid, § 217. to compel a postmaster to send matter through the mails at cer- tain rates, § 217. See Courts (State) ; Removal of Causes ; Taxes (Levy of). COURTS (FEDERAL CIRCUIT OF APPEALS); No limitation on appeals as to amount involved, § 308. "OURTS (STATE) : Cannot issue this writ to a federal officer, § 219. Cannot restrain process from a federal court, § 219. Cannot prevent state officers from collecting a tax, as ordered by a federal court, § 218. Will not issue a subpoena to appear before a federal officer, § 219. Can require a state officer to perform any ministerial duty, § 219. May require a state officer — to levy a tax to pay a federal judgment, § 219. to pay a creditor money collected to be paid on his federal judgment, § 219. to erase certain records as ordered by a federal court in bankruptcy, § 219. See Courts (Federal Circuit) ; Removal of Causes. COURT (UNITED STATES SUPREME): Can generally issue a mandamus only in aid of appellate jurisdic- tion, § 216. Cannot issue a mandamus to a state court, § 216. Will issue this writ to a federal court to set aside the disbarment of an attorney, §216. In aid of appellate jurisdiction has issued this writ to federal circuit courts — to set aside the erroneous dismissal of an appeal, § 216. to sign a bill of exceptions, § 216. to reinstate a case improperly disnrssed, § 216. to sign the record of a judgment, § 216. to allow an appeal, § 216. to enforce a decree erroneously suspended during appeal, § 216. Limitations on appeals as to amount involved now removed, § 308. INDEX. 423 CRIMINAL PROCEEDINGS: Mandamus will issue to interfere in criminal proceedings when nec- essary to protect civil rights, § 61. The writ will issue to compel courts to proceed in and dispose of criminal cases, §§ 61, 203. D. DAMAGES: Only awarded when statute allows, § 310. Suit for, bars mandamus, and vice versa, § 311. When suit for, plainly not sustainable, a mandamus has been allowed, § 811 See Waiver. DEATH : Abates mandamus with private relator, § 233. Does not abate mandamus of relator who is an officer, § 233. Does not abate mandamus when copartners are relators, § 233. See Officers. DEBTS : Mandamus not lie to compel payment of debts, § 17. Exceptions, when ministerial officer has money in his hands which it is his duty to pay to party entitled to it, § 18. to public officers and corporations to enforce a duty imposed on them by law when no other way of collecting, § 19. Assignee of part of a public debt cannot compel officers to issue a warrant to him, § 111 DECISION : Mandamus not lie to a court to review any decision involving facts. §187. DECREE : Mandamus refused to enter decree on report of referees, § 187. Mandamus granted in Michigan to vacate order setting aside a decree, § 200. Writ lies to enter a decree if case has been heard, § 204. See Equity. DE FACTO INCUMBENT : Generally held, mandamus not lie to remove, § 142. Must have color of right, § 143. An office is full de facto when the party elected has been admitted to the office, whether the election legal or not, but such illegality must be consistent with honesty of purpose, § 143. Writ will lie to seat officer if incumbent only holding till his succes- sor is elected, § 143. See Elections; Quo Warranto. 424 INDEX. DEFAULT: Party must be in, before a mandamus will issue, § 221. Tbreats or determination prior to time not a default, § 221. Mandamus not lie to set aside a default and inquest, § 187. Contra in Michigan, § 200. See Refusal. DELAY : When delay in acting not unreasonable, mandamus refused, § 70. Mandamus lies to act with reasonable promptness, § 70. Writ lies to a court to render a judgment, if unreasonable delay after submission of cause, § 204. If more time ought to be allowed, writ will be refused, § 73. Mandamus not lie to pay damages sustained while city hesitates about abandoning condemnation proceedings, § 135. See Laches ; Time. DEMAND : Demand to perform duty must precede application for writ, § 222. Such demand must be specific, § 222. Demand must be confined to act to be done, § 222. When an improper requirement added, the latter has been rejected, §258. Personal demand not necessary to perform public duties when no one with duty to make the demand, § 224. In public duties the law makes the demand, § 224. Demand was considered unnecessary — when colored children were excluded from public schools, § 224. when a city council failed to order an election to fill a vacancy among its members, § 224. when a municipality failed to oi'der the levy of a tax to pay a judgment whereon an execution was returned nulla bona, §224, when a city failed to order a tax to pay bonds on which the creditor had obtained a judgment, § 224. Demand should be made when proper mode of performance is doubt- ful, § 224. Demand not to be made till time allowed for action has expired, § 226. Demand may be made before default, if otherwise a failure of jus- tice, § 227. Alternative writ must state that demand was made, § 257. If personal demand not necessary, facts must be alleged which so show, § 257. Demand to levy a tax not stating amount of liability is insufficient, §257. See Alternative Mandamus; Issues. INDEX. 425 DE MOLEST ANDO (WRIT): Mandamus will not take the place of, § 43. DEMURRER : Lies if mandatory part of alternative writ larger than warranted — by the recitals of the writ, § 2(50. or by the statute, § 260. or demands several acts all of which cannot be legally required, § 260. Under early practice concilium took the place of a demurrer, § 288. Under early practice, if the writ held good on concilium, a peremp- tory writ issued at once, § 268. Motion to quash is equivalent to a demurrer, § 268. In important questions a demurrer was preferred, § 269. In America a demurrer is allowed to alternative writ. § 270. Return may also raise legal propositions, as a demurrer, § 270. If demurrer to alternative writ is sustained, relator may amend, §271. If demurrer to alternative writ overruled, a return is allowed, § 272. Sometimes court requires first to be informed of nature of return, §272. Demurrer may be filed to a return, § 285. Demurrers in mandamus subject to same rules as other demurrers, §286. Demurrer to return confesses its allegations, § 286. Demurrer runs back to first defective pleading. § 286. If part of return good, judgment on it must be for respondent, §286. If demurrer to return sustained, respondent may amend, § 287. If demurrer to return overruled, generally held relator may reply, §288. Demurrer lies to reply taking issue on immaterial questions, § 289. See Concilium; Motions to Quash. DISBURSING OFFICERS: Mandamus lies to pay accounts properly allowed, § 135. Writ not lie to pay account prior to audit, if such audit required, §135. No audit required before paying salaries fixed by law, § 135. On mandamus to pay properly allowed account, court may investi- gate legality of claim, but not amount, § 135. Writ refused if no money on hand, § 135. Writ will not issue to pay when money received, § 135. Writ will issue if money exhausted by improper payments, § 135. Writ will lie to indorse on claim refused for lack of funds, when law requires such indorsement, § 135. Writ will not lie when discretion allowed to officer, § 135. 4:26 INDEX. DISBURSING OFFICERS (continued): Disbursing officer cannot refuse to pay when legislature provides therefor, though state not legally liable, § 135. Writ not lie to officer who has turned over the funds to his suc- cessor, § 135. If reasonable doubt as to duty to pay, or right of relator to receive, the writ will be refused, § 135. See Payment; Treasurer; Treasurer (County); Treasurer (Township). DISCRETION OF COURT : Court has discretion about issuing writ, though prima facie right shown, § 62. Discretion must be sound, guided by law and regular, § 69. No inflexible rule to govern court's discretion, § 62. Court will consider the exigency, nature and extent of injury which will follow a i - efusal, etc., § 63. Writs will be issued only in cases of necessity, § 67. The court in its discretion will refuse to issue the writ — if the duty is vague, § 31. if the right sought has become a mere abstract right, § 66. if the act can be of no substantial or practical benefit, § 66. unless necessary to secure ends of justice or some useful object, §66. unless substantial interests or substantial rights are involved, §66. if merely to l-elieve party from effects of his own mistakes, § 66. unless substantial relief can be given, § 66. if all available means to attain object desired have not been tried, § 67. if respondent admits he is willing to do the act desired, § 67. if the act sought has already been done, § 67. if the act sought is voluntarily done after the hearing, § 67. if the proceedings are collusive and fictitious, § 68. unless good motives and correct actions are shown, § 68. if action brought to obtain opinion of court on point of law, § 68. to determine a fanciful question, § 68. for curiosity, § 68. as a mere matter of taste, § 68. to gratify the relator's spite, § 68. to direct the general course of conduct of an officer, § 69. when justice will not be subserved thereby, § 72. when it will operate harshly, g 73. when it will work injustice, §71. when it will be unavailing, § 75. when the act is physically impossible, § 75. INDEX. 427 DISCRETION OF COURT (continued) : The court in its discretion will refuse to issue the writ (continued) — to compel a technical compliance with the law contrary to its spirit, § 71. when respondents can legally nullify it by subsequent action, §74. when the respondents have already set themselves in motion, §70. when the relator has investigated, authorized or approved of the act complained of, § 68. Query : will a court compel action after the time limited for per- formance, §s 79, 80. If the act will become possible, the court will extend the time for a return, § 76. The writ will be refused if the respondent has already gone out of office, § 78. The court will protect the respondent's rights — Respondents will not be required to subject themselves to suits for trespass, § 81. Respondents will not be required to bring suits, unless they are indemnified, § 81. Parties will not be harassed by suits, § 82. Writ will be refused, if on account of suits pending it would be oppressive, § 82. Party will not ordinarily be required to disobey an injunction, §82. Courts reluctant to grant this writ, when third parties not be- fore the court may be injuriously affected, § 8a Writ usually refused, if another tribunal can compel the act de- sired, §§ 84, 85. Court will not grant the writ, commanding A. to order B., § 86. Court will refuse the writ, if there has been unreasonable delay, §87. Discretion of court denied, when government is relator, § 88. DISCRETIONARY ACTS: The writ will not issue, when the officer has a discretion whether or not to do the act, § 110. See Judicial Acts. DISCRIMINATION: See Common Carriers; Gas ; Irrigation ; Rail- roads; Telephones; Public Use. DISFRANCHISEMENT : Means removal from membership of a corporation, § 137. See Corporation (Public) ; Corporator (Private Corporation). 428 INDEX. DISMISSAL: A mandamus was refused to compel a court to allow a plaintiff to dismiss his suit, § 196. A mandamus was granted to compel a court to set aside its dismissal of an appeal from a nonsuit, § 201. DOCKET : Mandamus refused to compel a court to reinstate a cause on its docket, § 187. Mandamus granted to a court to reinstate on its docket a cause im- properly dismissed, §§ 187, 189, 204. Writ refused in Alabama to compel a court to strike a cause from its docket, §§ 199, 210. DOCUMENTS (PUBLIC) : See Books (Public). DUTY: Mandamus lies to enforce obedience to common law, statutes and charters, §§ 13, 31. Writ lies to enforce duties resulting from office, trust or station, §13. There must be a plain dereliction of duty, £ 21. Mandamus creates no new duty, §§ 50, 60. It issues only to compel the performance of what was a duty with- out the writ, § 50. Performance of the duty must be obligatory, §§ 27, 57. Duty may be mandatory, though in language of statute permissive' 8 34. Character of duty determines how far it may be enforced bv the writ, §29. Duty must be plain and positive, §§ 57, 158. Duty must be clearly enjoined by law, § 57. If the duty under the law is vague, the writ will be denied, § 31. When a substantial doubt as to the duty, the writ will be refused, §57. Such doubt is a doubt by the court after examination, § 57. Court will decide whether the duty is judicial or ministerial, § 108. When party has a discretion whether to do or not, the writ will not issue, § 33. Writ cannot order party to do illegal act, though it was once legal, §60. Writ will not issue when law cieating the duty has been repealed, §78. Writ is generally refused, if respondent has gone out of office. § 78. Writ will not lie to officer to disregard certain papers filed with him, where there is no law for such filing. § 179. INDEX. 4-2'.) DUTY (continued): The writ will not lie to count votes cast at an election if there was no law for such an election, § 184. United States can impose no duty on a state officer, and compel him to perform it, § 219. See Term of Office; Time, E. ECCLESIASTICAL TRIBUNALS : In America mandamus does not run to, § 176, Their judgments conclusive in purely ecclesiastical offenses, § 176. Private corporations subject to them by charter must obey their de- cisions, § 176. Courts will interfere as to such obedience only when property rights involved, 176. Even then their decrees conclusive, if they had jurisdiction, § 176. Regularity of proceedings not inquired into, § 176. Decisions on doubtful and technical affairs conclusive, even though comprising jurisdictional facts, § 176. ELECTIONS : Mandamus lies to call elections at time fixed by law, § 138. elections to fill vacancies, § 138. an election, if election already held, clearly colorable and void, § 138. An election based on a palpable disregard of law will be ignored. §143. Mandamus will not lie to hold an election, if one has already been held, though of doubtful validity, § 138. Writ will not lie to hold an election, if there is already a de facto in- cumbent of the office, unless no other remedy, § 138. See Elections (Canvassers); Offices. ELECTIONS (CANVASSERS) : Mandamus lies to canvass votes cast at an election. §$ 139, 178. Must canvass all the votes cast, § 1^9. May reject ballots void on their face, § 179. May reject ballots not conforming to the law, § 179. May correct plain clerical mistakes on the papers, § 179. Must confine themselves to the papers before them, § 179. May notice facts of general notoriety. § 179. Most of their duties are ministerial, § 178, May decide whether returns received are genuine, § 179. They have a discretion when meaning of ballot is doubtful, § 179. when words in a return are uncertain, § 179. Surplusage in election returns should be rejected, § 179. 430 INDEX. ELECTIONS (CANVASSERS) (continued): Surplusage in returns canuot be used to contradict them, § 179. The uncertainty must be great to justify the rejection of a return, §179. In mandamus proceedings courts will not hear evidence of facts re- specting a return, § 180. Such evidence was once allowed, § 180. Matters of general notoriety have been considered, § 180. Mandamus lies to declare result of an election, § 181. Mandamus lies to issue a certificate of election, §§ 140, 183. Immaterial that a certificate has already been issued, § 140. Courts try to sustain election returns, § 179. State officers must canvass returns of congressional elections, § 183. Peremptory writ will specificially direct what to do, § 183. to count votes, § 183. to omit votes, § 183. Mandamus lies to determine result of election by lot when the law so provides, § 181. When canvassers are allowed judicial functions, the writ will not lie, §§ 140, 184. Writ not lie when adequate remedy by appeal or contest, § 184. to count votes if office already legally filled, § 184. to count votes if no legal authority for an election, § 184. May be required to reconvene, though adjourned sine die, §§ 52, 185. though some members gone out of office, § 185. but not when term has by law expired, S|§ 77, 185, 241. Cannot be reconvened for any purpose if law creating has been re- pealed, §§ 78, 241. Will not be required to recanvass votes if term of officer elected has already expired, § 77. Writ may issue to successors if they can discharge the duties, § 185. See Offices. ELIGIBILITY : When title to office not triable in a mandamus, the question of re- lator's eligibility to tbe office cannot be raised, § 153. EMINENT DOMAIN: When parties have such rights, a mandamus will run against them, §§ 27, 27a. Writ issued to county officers to summon jury to assess damages for land condemned, § 111. Writ issued to court to appoint commissioners to condemn land and assess damages, § 189. Writ not lie to city to pay damages accruing from delay in con- demnation proceedings, till judgment obtained therefor, § 135. Writ lies to appoint appraisers to assess the damages from a right of way, § 109. INDEX. 431 EMPLOYEE: Mandamus refused to enforce contract with public board, § 16. EQUITY : Mandamus will not issue from court of, § 3. Writ never granted to enforce equitable rights, § 56. Equitable transferee cannot by mandamus compel transfer of stock on books of the corporation, § 56. Equitable remedy no bar to a mandamus. § 55. Remedy in equity appeals to discretion of court about issuing a man- damus, § 55. When cause pending in equity, and such court better adapted to settle the rights of the parties, this writ will be refused, § 82, Bill in equity, asking an injunction against a mandamus, will not be received as a return therein. § 281. Writ not lie to court to conform to equity rules in a pending cause, §§ 187 ' 196 ' • •* «m Writ refused to grant a rehearing in an equity case, §1*1. Writ not lie to equity court to dismiss a cause, as parties agreed to Writ gmnted to chancellor to order money restored after the decree was reversed on appeal, § 189. In Michigan will only interfere in equity in extreme cases, & ~0U. ERROR (WRIT OF) : Mandamus cannot be used as a writ of error, § 313. If informal, remedy is motion to vacate, and not mandamus to en- force decree, § 201. Mandamus not lie to review decree, merely because writ of error not allowed. § 202. . Whether, in mandamus proceedings, appeal or writ of error lies, de- pends on local statutes, § 306. See Appeal; Appeal in Mandamus Proceedings EV TlImlamus not lie to receive evidence already rejected on trial of cause, §§ 187, 196. EXCEPTIONS: See Bill of Exceptions. EXECUTION : Writ refused to vacate order setting aside an execution, § 187. to set aside dismissal of rule to show cause why execution should not issue, § 201. Writ refused to vacate stay of execution, when property already levied on in another suit, § 187. 432 index. EXECUTIVE OFFICERS: If refuse to act at all, mandamus lies to compel action, § 32. Creditors of a state cannot by a mandamus assume to exercisa a su- pervising control of treasurer and auditor in conduct of their of- fices, § 66. Writ issues to all executive officers, outside of the governor, § 99. Writ not granted in Texas or Minnesota to head of any executive department, § 102. When head of department is acting as agent of the governor, this writ will not run to him, unless it will against the governor, § 99. See Auditor of State; Comptroller of State; Governor; Secretary of State; State Land Office (Commissioner); State Treasurer. EXECUTIVE OFFICERS (UNITED STATES): Mandamus lies, if officer refuses to take any action, § 101. Writ lies to compel officer to obey decision on appeal of superior ap- pellate officer. § 101. Writ not lie relative to ordinary discharge of official duties, § 100. to issue a patent for public lauds, § 100. to reverse a decision refusing an increase of pension, § 100. to pay amount allowed claimant by another department, § 100. to pay claimant amount received from foreign government in satisfaction of claim, § 100. Writ not he to re-issue a patent to an assignee after deciding not to be a proper assignee under the law, § 100. Writ will issue to all federal executive officers, except when acting as political or confidential agent of the president, § 99. See Secretary of Interior; Secretary of State; Patents (Commissioner); Pensions (Commissioner); Postmaster-Gen- eral; President. EXHIBITS : Documents of importance should accompany petition as exhibits, §261. Records of courts should appear as such, § 261. Usually charters and by-Jaws of private corporations accompany a petition to restore an expelled member or the return, § 261. Bill of exceptions should accompany a petition to compel its signing, §261. EXPULSION: See Corporations (Public); Corporators (Private Corporations'. INDEX. 433 F. FALSE RETURN (ACTION FOR) : Relator allowed an action for a false return to the alternative writ. § 268. Such action to be brought in the king's bench, § 268. Judgment necessary first on the sufficiency of the return, £ 268. If relator won the suit, a peremptory writ issued at once. § 268. If a corporation was the respondent, the action might be brought against it or against any particular corporator, § 268. Such action now obsolete, § 268. FRANCHISES : Mandamus runs against those holding public franchises, § 27. Must first have assumed the franchises, if not obligatory to do so. §27. FUNCTION : Writ issued in England to protect a function, § 21. If emoluments attached, stronger disposition to issue the writ, § 21. In America, such function must be associated with public rights or offices, § 22. Some exceptional rulings, § 22. The writ issues to protect a function when statute so provides, § 22. See Public Functions. G. GAS: Mandamus will issue to furnish gas upon payment therefor, § 162. GOOD FAITH: Mandamus will be refused, unless there is a serious contest, § 66. Relator must satisfy court that application bona fide and for good purpose, § 68. Writ will be refused, if proceedings tainted with fraud and cor- ruption, § 69. illegality, § 69. Writ to issue an execution will be refused, when really brought to contest the legality of the consolidation of two cities, § 69. See Discretion of Court. GOVERNMENT : May always have the writ when asked in matters pubhci juris, § 88. Legislative, executive and judicial departments entirely independent, §91. This writ never runs against the government, g 89. Writ not granted, if government a necessary respondent, § 89. 28 434 INDEX. GOVERNMENT (continued) : This writ will not issue against the government by indirection by issuing it against public officers, § 89. Writ has been refused to compel the government — to make a contract, § 89. to fulfill its contract, § 89. to deliver the laws to public printer to print, § 89. to pay out money in advance of an appropriation, § 89. to pay over proceeds of a tax to the county treasurer, § 89. to pay certain claims after money otherwise appropriated, § 89. Courts cannot control public funds in the hands of officers against the political power in administering governmental finances, § 89. Officer cannot refuse to pay over funds when the government is will- ing, § 90. Writ not granted when government is a necessai-y respondent, § 89. Whether the government has impaired the obligation of its contract with the relator cannot be inquired into in a mandamus proceed- ing against its officer, where government not a party, § 105. Government appears in such proceedings by its law officer, §§ 229, 230. In mandamus proceedings by the government, a municipality can- not urge as an offset a debt due to it from the government, § 89. A mandamus cannot issue from a federal court to a state, directly or. indirectly, § 98. GOVERNOR: Decisions vary as to whether this writ will run against a governor, §§ 93, 94, 95, 96. This writ has been issued to a state governor — to commission officers, § 93. to draw a warrant for salary, § 93. to issue state bonds to a corporation, § 93. to authenticate a bill, § 93. to issue a proclamation, § 93. to sign a patent for land. § 93. to perform a duty with other officers, § 93. to perform a duty which might have been imposed on others, §93. contra, § 94. when he voluntarily submits to court's jurisdiction, § 94. contra, § 94. Deductions from the decisions, § 97. This writ can issue from a federal court to a state governor, § 98. This writ will not lie in a federal court to a state governor, when it is really against the state, § 98. If the governor is made a co-respondent, when such writ is not al- lowed to issue against him, the writ will be dismissed, § 234a. See Executive Officers. INDEX. 435 GUARDIAN: Mandamus lies to a court to appoint a guardian for a non compos defendant to a suit, § 189. H. HABEAS CORPUS: Mandamus lies to court before whom a prisoner is brought on habeas corpus, to hear the evidence, § 204. Mandamus refused to court to hear application of party for a habeas corpus, when it has already heard him on an application for bail- §189. Mandamus refused to make a court issue a writ of habeas corpus, % 187. Contra, 189. When party committed for contempt in mandamus proceedings, wherein the court had no jurisdiction, habeas corpus lies to re- lease, § 302. HARBOR : Writ lies to pay the expenses of the construction of a public harbor, § 129. HIGHWAYS: Mandamus lies to officials to perform their duties relative to high- ways. § 116, Such duties are included as laying out a road or opening a high- way. § 116. Writ lies to keep streets and roads in repair and to remove obstruc- tions therefrom, § 116. Writ lies to furnish road overseers with necessary implements, § 111. Writ lies to grant an application to establish a private road, § 116. Writ lies to draw a warrant for damages caused by constructing a road, § 114. Writ will not lie when the duties are discretionary. ^ 116. This writ will not lie when the law has provided another remedy, § 116. Officers will not be required to commit a trespass. § 116. Officers will not be required to subject themselves to an action for trespass, g§ 81, 11 6. Will not be required by this writ to layout a highway when the pro- ceedings have been stayed by certiorari) £ 57. Will not be required to open a highway which their predecessors laid out without authority, § 60. Though discretion granted as to repairs they cannot wholly be neg- lected, § 39. An alternative mandamus to opeu a road should so describe it that it may be thereby identified, § 256. See Bridges (Public). 436 INDEX. I. INDICTMENT : Is not generally considered a bar to a mandamus, § 53. Writ granted to set aside order quashing an indictment alleged not to be properly found, § 201. INJUNCTION: Contrasted with a mandamus, § 43. Court will not by mandamus compel a party to disobey an injunc- tion unless it was collusively obtained or is plainly void for want of jurisdiction, or such action is necessary to protect a party's rights, § 82. This writ does not lie to compel a court to grant an injunction, §187. Contra in Louisiana, Arkansas and Michigan, §§ 197, 198, 200. This writ does not lie to compel a court to set aside an injunction, § 196. Contra in Alabama and Michigan, §§ 199, 200. Court will not be compelled by this writ to try a cause when an in- junction against its prosecution has been granted. § 204. An injunction issued against the further prosecution of a mandamus suit will be disregarded, § 312. INSIGNIA : May be obtained by mandamus by one entitled to the office, §§ 154, 155. The holder of the commission is entitled to the insignia of office, §142. INSPECTION : Mandamus lies to obtain inspection of public books and papers, § 155. See Books (Public). Mandamus lies to obtain inspection of books of a private corporation, §161. See Books (Private Corporation). INTERLOCUTORY PROCEEDINGS: See Courts. INTERVENOR : Mandamus refused to compel court to allow party to intervene, § 187. See Third Parties. INTRUDER : Mandamus granted to restrain from interfering with discharge of duties, § 150. Contra, § 43. INDEX. 437 IRRIGATION : Mandamus runs to party holding right to appropriate water for irri- gation, § 27. Writ issued to irrigation company to furnish water, § 162. Writ issues to county court to fix rates for water for irrigation, §111. ISSUES : When law dispenses with necessity of demand and refusal to per- form duty, the allegation thereof and denial thereof in return raise no issue, § 224. J. JAIL: Sheriff may have a mandamus to obtain possession, § 155. JUDICIAL ACTS : Definition of a judicial act, §§ 30, 31, 32, 187. Mandamus not lie to review decision on judicial acts, §§ 32, 37, 187. Courts, not the officers, decide whether the acts judicial or ministe- rial, §§ 31, 108. Decision, to be a judicial act, must be on the law or facts legiti- mately involved in the question, § 31. If doubtful, mandamus will not lie to review action, § 31. Federal rule as to the use of this writ, g 31. When facts creating the discretion are admitted, the act ceases to be judicial, §§ 30, 48. Mandamus has been allowed to review judicial action — when decision reached under misapprehension of law, §§ 38, 39- in England as to acts of inferior courts, when the errors of judg- ment were apparent on their records, § 39. when a supervisory control by mandamus was conferred over such tribunal, § 39. when conclusion reached was due to matters of fact not in- volved in the discretion allowed, or to mistakes of law not ger- mane thereto, §g 38, 39. when fraud, passion, adverse interest or prejudice has influenced the decision, §§ 40, 188. The abuse of discretion must be flagrant to allow a review by man- damus, § 41. Proof of abuse of discretion must be clear and convincing, § 41. Though an act be judicial, that is no excuse for non-action, § 34. The party or tribunal will be required to take action, §§ 29, 32, 189. The decision will be left to such party or tribunal, g 29. Such party has no right to so act as to defeat a mandatory law, §35. 438 index. JUDGE : Cannot issue this writ in vacation of court, § 213. JUDGE (COUNTY): Required by this writ to appoint appraisers to assess damages for right of way, § 103. JUDGE (PROBATE): Mandamus lies to compel issue of his warrant, § 109. JUDGMENT : Mandamus lies to render judgment if an unreasonable delay in do- ing so after cause has been heard, § 204. Judgment must be rendered in reasonable time after cause submitted, §204. Writ lies to enter, when court cannot set aside or grant new trial, § 189. on alternative verdict according to election of plaintiff, § 189. in a criminal case and to pass sentence, § 189. on report of referee, § 189. Writ lies to sign, § 189. to correct, when erroneously entered, § 189. to execute the sentence of the court, § 189. Ordinarily this writ not allowed to enforce a judgment, § 130. Writ runs to enforce judgments against public corporations, since no other remedy allowed, § 130. In such cases cannot allege that respondent was not entitled to the judgment, § 131. In such cases, respondent cannot urge any defense available in orig- inal suit § 131. In such cases, when court must go behind judgment to find a right to issue the writ, it cannot decline to recognize, if so, that the claim is void, ^131. When money collected to pay a judgment, this writ lies to compel payment, § 135. Writ not lie to compel the granting of a particular judgment, § 187. to compel judgment of acquittal in a criminal case, § 201. to a court to vacate an order opening a judgment, § 187. to a court to enter judgment on a verdict after a mistrial has been entered and the jury discharged, § 187. Writ does not lie when a final judgment has been granted, § 201. Writ has been refused, as being final judgments — to set aside a dismissal for failure to pay costs, § 201. to amend a judgment, § 201. to vacate a judgment entered nunc pro tunc, § 201. to set aside order sending cause to another court. § 201. to compel entry of a judgment for costs, § 201. to set aside dismissal of rule to show cause why an execution should not issue, § 201. to compel grant of administration to A. pendente lite, § 201. INDEX. 439 JUDGMENT (continued) : Writ not lie merely because writ of error or appeal not allowed, §202. Judgment non obstante veredicto may be granted in mandamus, §292. When judgment is arrested, relator should apply for judgment against himself, and, when refused, mandamus lies to grant, § 201. Motion in arrest of judgment in mandamus is allowable, § 292. Form of judgment for respondents, § 292. See Awards ; Judicial Acts ; Records , Res Judicata ; Removal of Causes ; Taxes (Levy of). JURAT: See Affidavit. JURISDICTION : Common-law courts issue this writ, § 213. When writ issued to an officer, original jurisdiction is exercised, §214. When writ issued to a court, appellate jurisdiction is exercised, § 214. Often jurisdiction only allowed in aid of appellate jurisdiction, §215. Appellate courts often refuse writs, when other courts can issue them, § 215. When judgment of justice appealed, such court can determine its jurisdiction over the appeal, and a mandamus to justice to issue execution will be refused, § 212. See Courts; Courts (Appellate); Courts (Federal Circuit); Court (United States Supreme). JURY: Statute of 9 Anne provided for trial by jury of issues of fact, § 290. Rulings in America not uniform as to right to a jury trial, § 290. Parties may waive a jury. § 290. Appellate courts generally send issues of fact to lower court for jury trial, § 290. W T hen no issues of fact a jury will not be granted, § 290. JUSTICE : Courts try to make this writ a means of substantial justice, § 66. JUSTICES : Not required in England to issue distress warrant if threatened with an action therefor and no indemnity offered, § 81. Not required in England to sue officer on bond, when no provision has been made for their costs, § 81. See Discretion of Court ; Trespass. JUSTICES OF THE PEACE : Mandamus lies to, to perform ministerial duties, § 212. Writ lies to, to take action in judicial matters, £ 212. 44:0 INDEX. JUSTICES OF THE PEACE (continued): Writ has been issued to justice.' of the peace, § 212. to issue summons against parties, § 212. to allow a change of venue, § 212. to hear and determine informations brought before them, § 212. to hear an appeal, § 212. to assess damages on dismissal of a replevin, § 212. to render judgment on verdict of jury, § 212. to proceed and hear preliminary examination of accused, § 212. to render a judgment of dismissal, § 212. to tax costs on dismissing a suit, § 212. to make correct entries in docket, § 212. to allow a garnishee to be examined, § 212. to make a true record of the judgment, § 212. to make up the record in due form, § 212. to furnish a copy of judgment, § 212. to issue execution on judgment, §212. to issue writ of restitution, § 212. to sign a bill of exceptions, § 212. to grant an appeal, § 212. to approve a proper bond, § 212. to issue supersedeas of execution, § 212. to keep office in proper precinct, § 212. Mandamus not lie, when justice allowed a discretion, § 212. Writ not lie, when case has been appealed from him, § 212. when he has no longer jurisdiction over it, § 212. to levy penalty of a conviction, when no law to sustain such conviction, § 212. Justice will not be required by this writ to perform any act render- ing him liable to an action therefor, § 212. See Trespass. L. LACHES : On account of delay in applying for writ, the court may refuse it, §87. Such delay must first be satisfactorily accounted for, §§ 87, 314. Court will consider all the circumstances, § 87. LAWYERS: See Attorneys. LEGISLATURE : Is entirely independent of the judiciary, § 91. Mandamus will not run against, § 107. Writ not lie to correct their minutes, as filed by their officers, § 107. Writ not lie to secretary of a territory to alter the proceedings of its legislature as filed with him, § 107. INDEX. 441 LEGISLATURE (continued): Writ refused to speaker of legislature to send a bill to the senate when the house had sustained his decision that the bill had not passed, § 107. When writ asked to enforce rights of member of legislature, the court will decide who was elected such, provided no contest pending in legislature, § 107. This writ was issued — to speaker of legislature to certify to a member s account, £ 107. to speaker of legislature to certify to the election or appointment of officers by the legislature, § 107. to speaker of legislature to open and publish the returns of the election of state officers, § 107. to secretary of state to file election returns with the speaker of the legislature, and the court decided which body was the true legislature, § 107. The courts cannot control by mandamus public funds in the hands of officers against the political power in administering public finances, § 89. Can decide when property is devoted to a public use, § 26. LICENSES: When officer has no discretion, compelled by mandamus to issue li- cense, g 119. When discretion allowed, officers decision will not be reviewed by this writ, §§ 81, 119, 313. . Discretion allowed, when sufficiency of bond must be determined, §119. when applicant must be properly recommended, § 119. when diploma required from institution in good standing, § 119. Writ will not issue — when the right to a license has since been taken away, § 77. when such business has since been made illegal, §§ 60, 119. Writ has been issued because of refusal of license from mistake of law, §39. . If the taxes on licenses has been increased prior to the granting ol the license, the relator must pay it, before the writ will issue, § 119. The petition must allege facts showing compliance with the law, § 256. Discretion granted will be reviewed, when decision influenced by fraud, passion, adverse interest or prejudice, § 40. LIMITATIONS (STATUTE OF): Generally does not apply to these writs, § 314. Courts by analogy adopt it relative to mandamus, § 314. Writ will be refused if statutory period has passed, when court acts, though application made in time, § 314. Not apply, when government officially asks for writ, § 314. 442 INDEX. LOUISIANA : To prevent irreparable injury, writ lies to review interlocutory orders of the courts, § 198. H. MANDAMUS: Definition, § 1. Origin, § 2. Common-law writ, §§ 2, 3, 213. Prerogative in England : a writ of right in America, § 62. Extension of uses of in England. § 8. Uncertainty as to limits of use, § 9. Only used in extraordinary cases, § 12. Laws extending operation to be strictly construed, § 12. Agreement of parties not extend its use, §§ 13, 17. How far confined to public rights, § 21. Lies though multiplicity of acts required, § 31. Not he to regulate whole course of conduct, § 31. Lies to courts to take jurisdiction, when wrongfully declined, § 30. Not lie to undo what has been done, § 42. Not lie when any thiDg remains to be done or fact to be ascertained, § 42. to abstain from a tort or abuse of office, § 43. to prevent others from interfering with officer, § 48. to prevent one claiming to be elected from qualifying or from acting, § 43. Only protects substantial interests, § 49. Denied when there are other remedies, §§ 10, 209. May issue, though but one step, and may require other proceedings, §55. Is entirely a civil remedy, § 61. Lies only to protect property or prevent infringement of personal rights, § 60. Lies to pass on real contests, enforce or protect specific rights and redress actual wrongs, § 66. Cannot take the place of appeal or writ of error, §§ 201, 313. Can include only one case, § 232. Bars a suit for damages, § 311. See Motion for Mandamus; Money; Remedies. MANDATORY ACTS: See Statutes, MAYOR : Writ issued to, to sign order to pay a claim against the city, § 109. to sign a contract for the city, § 109. to countersign the comptroller's warrant, § 109. to issue and sell city bonds, § 109. Writ not lie to, to lease lands when allowed a discretion, § 110. Will not be required to act after abolition of municipality, § 241. INDEX. 443 MICHIGAN : Interlocutory orders of courts may be reviewed by mandamus, § 200. MINISTERIAL ACTS: Definition of, §§ 30, 81, 186. Mandamus lies to compel performance of, § 29. Courts will decide whether duties are ministerial, § 108. Writ lies relative to such acts to all public officers and public corpo- rations, § 108. Courts will ascertain the specific duty and will specify the exact mode of performance, §§ 29, 31, 186. See Preliminary Questions. MONEY : Writ refused to compel deposit of public money according to con- tract, § 16. Writ refused to recover money misapplied by a public officer, § 17. Will writ be refused, unless monetary interests are involved, §g 49, 167. Weight of authority is that monetary interests not necessary, § 49. Writ issued to county officers to set apart certain funds for specific purposes, § 111. See Corporators (Private Corporations). MONOPOLY : When a monopoly is granted, mandamus lies to enforce duties im- posed, § 27. MOTION IN ARREST OF JUDGMENT : See Judgment. MOTION FOR A MANDAMUS: First proceeding is a motion for a mandamus, § 245. Some courts require leave to be obtained to be allowed to make the motion, § 245. Usual practice is to file a petition containing all the averments nec- essary in order to have the writ granted, § 245. Such motion must be supported by affidavit, §p 245, 246. Affidavit and petition need not be separate papers, § 246. A written motion beside the petition not usual, g§ 245, 249. Motion is usually heard ex pavte, § 249. Upon hearing the motion court may grant a motion to show causo why a mandamus should not issue, an alternative writ, a peremp- tory writ, or may dismiss the proceedings, § 249. If upon the hearing a prima facie case is presented, or the right to the writ is doubtful, court usually grants a motion to show cause or an alternative writ, that the matter may be more fully investi- gated upon the appearance of the respondent, § 250. See Affidavit; Alternative Writ; Order to Show Cause; Peremptory Writ; Petition; Title. 4 ±4 INDEX. MOTION FOR PEREMPTORY WRIT: See Peremptory Writ (Mo- tion for). MOTION TO QUASH: Lies to the alternative writ, § 267. Is equivalent to a demurrer, § 209. It lies to the alternative writ, if — it is informal or defective, § 269. if its mandatory part is larger than warranted by its recitals or by the law, § 260. if it varies in substance from the order of the court, § 262. It admits as true only allegations well pleaded, § 269. Does not admit matters of law, legal conclusions, or statutory con- struction, § 269. May be used to meet mere formal defects, § 269. Defects of substance may be urged at any time, § 269. If overruled, under early practice a peremptory writ issued, $ 268. If overruled, under present practice a return may be filed, § 272. If sustained, under earl}' practice the proceedings were dismissed, § 268. If sustained, under present practice the relator may amend, §§ 271, 294. This motion also lies to the return, if defective, §§ 268, 285. When return is evasive or manifestly bad, this motion is used, §§ 268, 284. If return sets up any good defense, it should not be quashed as a whole, § 284. If motion overruled, under early practice respondent had judgment, §268. If motion overruled, under present practice relator may reply, if necessary, § 288. If motion sustained, under early practice a peremptory writ issued, § 268. If motion sustained, under present practice respondent may amend, §§ 287, 294. See Amendments; Demurrer; Peremptory Writ. K NEW TRIAL: Generally, writ refused to a court to grant a new trial, § 187. Rule different in Michigan, § 200. NONSUIT : Mandamus not lie to vacate an order setting aside a nonsuit, § 196. Writ issued to set aside the dismissal of an appeal from a nonsuit, §201. Writ issued in Michigan to compel vacation of a nonsuit, § 200. If a mandamus proceeding is not prosecuted, a nonsuit may be or- dered, § 292. INDEX. 4 1 5 O. OATH: Mandamus lies to swear an officer elect into office, § 141. but not if there is a judgment of ouster against him, § 141. Swearing a party into office confers no right to the office, g 143. Writ issued to administer an oath of insolvency to a debtor, § 189. See Affidavit. OFFICERS : Mandamus lies to any officer to perform any ministerial duty, §§ 21, 108. Writ not lie against an officer for acts done in an unofficial char- acter, nor in matters where he acts as an individual, §§ 23, 211. Writ not lie to compel him to pay out money, unless he holds it officially, § 23. Cannot refuse to pay out public money if the government is willing, §90. Writ not lie to direct his general course of conduct, § 69. Will be compelled by this writ to obey the decision of his superior officer on appeal from him, §§ 31, 101, 109. Writ issues to an officer — to take jurisdiction of a matter when he wrongfully declines, §36. to issue bonds of a municipality when such is his duty, § 109. to keep his books in the mode designated by law, § 109. to swear a party elected into office, § 141. Generally the writ is refused if another tribunal can compel the per- formance of the duty desired, §§ 84, 85. The wi it will not be granted to restore an officer to his office — if he can be immediately suspended or removed regularly, § 74. if his office is held at the pleasure of others, ^ 74. when he may be removed by a majority vote, § 74. when his position is a mere service, § 74. The writ will be refused unless there is an officer to do the act, § 59. The writ will not lie against him if his term of office has expired. §241. if his office has been abolished, § 241. When an officer is the relator his successor can continue the pro- ceedings, § 233. When he is the respondent courts differ as to whether the writ abates, § 238. The United States can impose no duty on a state officer and compel him to perform it, § 219. The alternative writ to restore an officer to office must show that he has the legal and constitutional right to exercise its duties, § 256. 446 INDEX. OFFICERS (continued): An officer will cot be required to commit a trespass or to subject himself to the liability of an action, § 116. See Removal from Office; Time; Trespass. OFFICERS (PRIVATE CORPORATIONS) : Mandamus lies to them to discharge their duties, § 165. Writ issued to them — to put the corporate seal to papers, § 165. to pay interest on stock, as law required, § 165. to deliver the corporate books to their successors, § 165. to call an election of their successors, § 165. An unreasonable postponement of an election is equivalent to a re- fusal to call it, § 165. Corporation can remove them for adequate cause, § 173. Mandamus to restore a removed officer will not be granted — unless tenure of office is permanent, § 173. or when a majority vote may remove, § 173. or when good cause for removal, though done irregularly, § 173. "When removal is discretionary, officer is not entitled to a hearing, §173. Writ will not lie to fill an office therein, while there is a de facto in- cumbent, § 173. Writ will run to them to pay the taxes levied on corporate stock, when there is no other remedy to collect them, § 19. OFFICES : Most courts refuse to try title to an office by mandamus, §£ 104, 142. Writ not granted to put into office, when there is a de facto incum- bent, § 143. Writ lies for office, if incumbent holding only till election of suc- cessor, § 143. if party holding by an election or appointment, merely color- able, § 143. if it is empty, § 143. Party, asking a writ of mandamus to obtain an office, should do everything necessary to complete his title thereto, § 143. A mandamus putting a party into an office confers no right thereto, §143. Writ not lie to count the votes cast for an office, if it is legally filled, §184. for an office, if the election was held without authority of law, §184. A party elected to an office will be compelled to assume its duties, §145. See Officers ; Removal from Office ; Title. INDEX. 447 OFFICES (REMOVAL OF): Writ lies to compel officers to remove their offices to the places ap- pointed therefor by law, g 125. Unless the law has provided another remedy, § 55. Writ refused in one instance for laches, § 87. ORDER TO SHOW CAUSE WHY ATTACHMENT SHOULD NOT ISSUE FOR DISOBEYING A PEREMPTORY WRIT: Relator may show in defense any sufficient cause for his diso- bedience, § 300. Such defenses have been considered sufficient — when county officers returned that they had not levied a tax, because all the money they could levy was required for the necessities of the county, § 300. when a change of law presented new issues. § 300. when by agreement of parties the operation of the writ was arrested, § 300. when the relator was no longer entitled to the writ, § 300. when the writ was vicious by reason of its defects, § 301. when the affidavit for attachment was defective, g 301. when it appeared there was no disobedience, g 301. ORDER TO SHOW CAUSE WHY A MANDAMUS SHOULD NOT ISSUE : By English practice usually granted first, § 250. Court fixes time for respondent to make return to it, § 251. Hearing under it is on the original affidavits and counter-affidavits. § 252. If an issue of fact presented, an alternative writ should issue, that there may be a jury trial, g 252. If an issue of law presented and respondent fully heard, a peremp- tory writ may issue at once, g 252. If no merit in case, proceedings are dismissed, g 252. Court will mould it, g 293. ORDER TO SHOW CAUSE WHY THE PEREMPTORY WRIT SHOULD NOT BE QUASHED: Court may grant, g 297. Court may quash the peremptory writ, g 297. if convinced the respondents are unable to obey it, § 297. if it is in excess of the alternative writ, g 297. if it is in excess of the rule made absolute on cause shown, g297. . if convinced it ought not to have been issued, g 297. if it has since become impossible or improper to obey, g 297. if it was improperly obtained, g 297. 448 INDEX. ORDER TO SHOW CAUSE WHY RETURN TO PEREMPTORY WRIT SHOULD NOT BE QUASHED : Court may grant such a rule and pass on the question, § 299. ORDINANCE : Clerk of a village not required to post up an ordinance, when it was repealed before the application for the mandamus, § 75. P. PARTIES: The general rule is that the government must be plaintiff, § 264. The name of party instituting proceedings is added as relator, § 264. The party against whom the writ is sought is defendant or respond- ent, § 264. See Government; Private Parties; Relator; Respondent; Third Parties; Title. PARTNERSHIP: Rule that partner cannot sue his copartner does not apply to man- damus proceedings, § 231. Death of a partner who is a relator with his copartners does not abate the proceedings, § 233. PATENTS : Writ not lie to issue to certain persons for land, when officer allowed a discretion, g 110. Writ lies to secretary of state to issue for lands, when it is fully pre- pared and recorded, g 234. PATENTS (COMMISSIONER OF): Writ lies to prepare and present a patent to the secretary of the in- terior for his signature, g 101. Writ lies to furnish a copy of a rejected or abandoned application for a yatent, § 101. Writ refused to compel to re-issue a patent to an assignee who, as decided by him, was not such an assignee as the law specified, glOO. PAYMENT : Writ lies to pay relator money declared to be due to relator out of funds in respondent's hands, g 135. When statute provides for payment out of a certain fund, this writ lies to compel, g 135. Officer must pay to judgment creditor money collected to pay his judgment, g 135. Officer can only be required out of funds of such kind as he pos- sesses, g 135. When a claim is properly audited and a writ is sought to compel its payment, court can examine as to legality, but not as to amount, §135. INDEX. 449 PAYMENT (continued) : Writ to pay money due under a contract must specify the exact amount. £ 256. Writ not lie to state officers to pay in absence of an appropriation, §89. when state has otherwise appropriated the money, § 89. State officers cannot refuse to pay out public money, if the state is willing, § 90. Writ may be refused for laches, § 87. Writ will be refused to pay out of a certain fund, when a court has decided that such fund was illegally collected, § 135. See Disbursing Officers ; Treasurers. PENSIONS (COMMISSIONER OF): Writ not lie to, to reverse his decision on an increase of pension. § 100. Will be required to obey decision of secretary of the interior on ap- peal^ 101. PEREMPTORY WRIT: Only issued without notice in cases of extreme necessity, § 251. If improperly granted without notice, may be reversed on appeal, § 261. May issue, if no return to alternative writ, § 266. Courts are reluctant to issue on a default, § 266. Issued when return merely an argument against court's power, § 266. May issue, if return evasive or frivolous, § 284. Must strictly conform to mandatory clause of alternative writ, §§ 230, 296. Some courts have only required a substantial compliance with the alternative writ, § 296. A variance in details from alternative writ has been allowed, § 296. Cannot be amended. § 294. If alternative writ is amended, it may be issued in conformity, § 294. Relator must prove his right to everything he asks, §§ 291, 296. Relator must not make a broader demand than he is entitled to § 291. All courts do not now adhere to this rule, § 291. The claim must be established against all the respondents, § 291. All issues must first be disposed of, § 295. Should describe the act to be done with reasonable certainty, § 297. Nature of the mandatory order, § 321. If writ does not effect the purpose, an alias or pluries may issue, §§ 292, 297. Cause may be continued till the writ can be fully obeyed, § 296. Court may during continuance issue other orders, § 296. 29 450 INDEX. PEREMPTORY WRIT (continued): Must be fairly and honestly complied with, § 299. Strictly no return to but obedience, § 297. See Attachment ; Order to Show Cause Why an Attachment Should Not Issue ; Order to Show Cause Why the Peremp- tory Writ Should Not be Quashed; Order to Show Cause Why Return to Peremptory Writ Should Not be Quashed. PEREMPTORY WRIT (MOTION FOR ON THE RETURN): Merely a substitute for a general demurrer, § 285. Subject to the same rules as a demurrer, § 286. The allegations of the return must be taken as true, § 285. Objections only reached by special demurrer will be disregarded, §285. Will not be granted, if any material averment is denied by the re- turn, § 285. Overruling it is only a refusal to issue writ prior to trial, § 285. PETITION FOR WRIT: Must contain all the averments necessary for the alternative writ, §§ 245, 262. Must be supported by affidavit, § 246. Need not be a separate paper from the affidavit, § 246. Should be addressed to the court, § 249. Upon its showing the alternative writ is granted, § 262. Court will mould the alternative writ so far as relief is concerned, § 262. Cannot be used to sustain or supplement allegations of alternative writ, 253. May be used as an alternative writ, in which case subject to the rules of pleading applicable thereto, § 262. Form of, § 317. Title of, 8 316. Verification of, § 318. Illustration of, § 322. See Alternative Writ ; Motion for a Mandamus. PHYSICIANS: See Licenses. PLEADINGS : Only one case can be included therein, § 232. Rules relative to pleadings in civil suits apply, §§ 289. 292. In pleading an official bond, averments must be made showing its compliance with law, § 256. Writ refused to court to prevent the filing of a pleading, § 196. to allow double pleading, § 187. to reverse its action in extending time for pleading, § 187. See Alternative Writ; Petition; Practice; Return; Title. INDEX. 451 POLICE BOARD: Will not be controlled as to general course of conduct, §§ 69, 120. Writ issues to revoke order contrary to law, § 120. to restore policemen wrongfully discharged, § 120. to pay policemen the salary allowed by law, § 120. though contract calls for less, § 120. Writ will not be granted to compel the superintendent of police to do his duty, when the board can discharge him, § 84 POLITICAL RIGHTS: Are not protected by this writ, § 61. POSTMASTER-GENERAL : Writ issues to, to credit a contractor with allowances which have been legally determined, § 101. PRACTICE : The general rules of practice apply to mandamus proceedings, § 292. A nonsuit may be granted, § 292. A withdrawal of the return may be allowed, § 292. A new trial may be granted, § 292. A motion in arrest of judgment lies, § 292. A judgment non obstante veredicto may be granted, § 292. An alias or plur'ies peremptory writ may be issued, § 292. All issues must be disposed of before the peremptory writ will issue. §296. Cause may be continued till peremptory writ can be fully obeyed, §296. Court during such continuance may make such orders as it deems proper, § 296. PRELIMINARY QUESTIONS : Are they judicial or ministerial, § 44. English rule, § 45. American decisions, g§ 46, 47. Summary of the decisions. § 48. When court erroneously decides on some pi-eliminary question of practice not to hear a cause, this writ lies to compel to hear, § 207. PRESIDENT (UNITED STATES): This writ not run against, as to his duties derived from the consti- tution of the United States. § 92. PRIMA FACIE TITLE: Party who has received the commission or certificate of election and has qualified has the prima facie title to the office, § 154. Courts disregard groundless assumption of election and pretended exercise of an office, § 154. Party with prima facie title must show he is the officer de jure, §154. 452 INDEX. PRIMA FACIE TITLE (continued): Such party may enforce his collateral rights though there is an in- cumbent of the office, § 152. Such party may have this writ to obtain a certificate of election, §152. to have his bond approved, § 152. to obtain a warrant for his salary, § 152. to obtain possession of official books, §§ 152, 154. to obtain the office-room, §§ 152, 154. Ordinarily, in such cases, question of eligibility to the office is not allowed to be raised, § 153. Writ is refused if another has the prima facie title, § 153. Writ is refused by most courts when the title to office is involved, § 153. See Offices ; Title. PRIVATE PARTIES: Mandamus will not run against, § 23. Writ runs against if he holds official or g?{«s/-official position, § 24. to obtain public books which he retains after expiration of term, §23. if he assumes functions from which public duties arise, § 24 as to his property devoted to public uses, §§ 25, 26. if he holds public franchises, § 27. Writ will not lie against one who acted as judge by consent of par- ties, § 193. The writ was refused against the speaker of an illegal house of rep- resentatives, § 23. PUBLIC CORPORATIONS : See Corporations (Public). PUBLIC DOCUMENTS : See Books (Public). PUBLIC FUNCTIONS: Writ lies to those assuming public functions by the nature of their business, § 13. Writ lies to one assuming public functions to discharge the duties thereof, § 24 See Function. PUBLIC FUNDS: Officer entitled to custody of public funds may have a mandamus to obtain them, § 134. Writ lies therefor though the respondent has already paid them over to the wrong officer, § 134. Writ to pay claims will be refused against municipalities when all their funds are required for necessary expenses, §§ 63, 66. See Payments; Treasurers; Disbursing Officers. INDEX. 453 PUBLIC RIGHTS: When involved, make a statute mandatory when in form permissive. §34 When involved, writ always granted on public application, § 88. PUBLIC USE: Mandamus lies to control property devoted to, §§ 15, 25, 27. Legislature decides what is a public use, gg 15, 26. Writ not lie if property is withdrawn from such use, §§ 15, 25. PUIS DARREIN CONTINUANCE (PLEA) : Allowed as to matters occurring after joinder of issue, § 279. Q. QUANTUM MERUIT: Writ cannot be used to recover money under a contract as on a quantum meruit, § 255. QUO WARRANTO: Is necessary before a mandamus, if there is a de facto incumbent of the office, § 143. When allowable to oust the incumbent from the office, generally held that a mandamus will not issue, g§ 138, 184. A mandamus to issue a certificate of election has sometimes been refused, when a quo u-arranto was necessary to obtam the office, §140. See De Facto Incumbent. E. RAILROADS : Writ lies to as being gua.s?-public, § 27a. to compel obedience to obligations imposed by law, § 13. when it accepts a law passed for its benefit, § 13. Writ not lie to enforce its contract, though required by law to make contract, § 16. Writ issued to it — to treat all alike in all respects, § 27a. to complete its line, § 159. to restore part of its line which was taken up, § 159. to construct a bridge over its track, § 159. to construct a bridge over a river, § 159. to put a cattle-guard on its track, g 159. to restore a highway obstructed by it, g 159. to make crossings on streets over its tracks, § 159. 454 INDEX. RAILROADS (continued) : Writ issued to it (continued) — to build so as not to obstruct a stream, § 159. to build a depot in a certain place, § 159. to resume use of an abandoned station, § 159. to receive a tax receipt in payment of fare, § 159. to stop its trains at a certain place, § 159. to issue commutation tickets, § 159. to carry freight for all on same terms, § 159. The last is not the English rule, § 159. Nor when the law provides another remedy, § 55. Writ will be refused to require to summon jury to assess damage to land when road not yet finished and full effects not yet felt, § 73. Writ refused to compel to do certain acts, when it has exhausted its power to raise money, § 76. Still writ may be issued, if it voluntarily put itself in that position, g76. Inability to do the act is a good answer in proceedings for contempt, §76. When it is financially unable to fulfill its duties a quo warranto, and not a mandamus, has been suggested as the remedy, § 164. Writ not lie to the receiver of a railroad, since the court can order him, § 84. See Bonds (Municipal) ; Corporations (Private) ; Subscriptions. REAL ESTATE: Mandamus not a proper proceeding to determine the title to real estate, § 64. If title to real estate incidentally involved, court should be satisfied about it, § 64. RECEIVER: See Railroads. RECORDS : Writ issued to court to correct its records according to the facts, §189. to enter on its records its refusal to probate a will, § 189. REFEREE: Writ not lie to judge to sign his report, on stipulation of parties, that it should be the judgment of the court and the judge should sign it, § 210. REFUSAL: Refusal to do the duty must precede application for a mandamus, § 223. Must be a clear refusal before the writ will issue, § 223. INDEX. 455 REFUSAL (continued): In public duty a neglect of performance is a refusal, § 225. Acts considered in such cases equivalent to a refusal — A failure to perform on the proper day with no excuse, §225. Adjournment of board without acting on claim presented. §225. Adjournment of board from time to time without action, 8 995 Long postponement of performance of the duty, § 225. Failure to levy a tax, though requested, § 225. Failure for years to levy taxes to pay judgments, § 225. In such cases must distinctly appear respondent declines to do the act, § 225. See Default; Issues. REGISTER OF DEEDS: Writ issued to enter satisfaction of a mortgage, § 124. to allow his records to be copied by authorized officers, § 124. to record a deed, § 124. Not required to record a deed not received officially, §§ 23, 124. REGISTER OF VOTERS : Writ lies to register a party entitled thereto, § 178. to restore to list one improperly stricken off, § 178. RELATOR : In mandamus to enforce private rights the party interested must be relator, § 228. In private rights, the relator must show some personal or special in- terest, § 228. Holder of a warrant, not its drawer, must be relator to compel pay- ment, § 228. A father is allowed by mandamus to assert his children's rights in the public schools, § 228. When duty due to government as such, private party cannot be re- lator, § 230. As to public duties generally, question whether a private party can be relator, § 229. The writ has been denied to a private relator — to order an election for removal of county seat, § 229. to compel removal of fences from public road, § 229. to award a contract to him as the lowest bidder, § 229. The weight of authority is that a private party may be relator as to public rights, § 230. 456 INDEX. RELATOR (continued): The writ has been granted to a private relator — to call an election for public offices, § 230. to compel a railroad to restore a highway, § 230. to compel a railway to run its trains to its terminus, § 230. to compel the opening and working of a public road, § 230. to cause the assessment of property for taxes, § 230. to compel the maintenance of a public bridge, § 230. to compel the opening and closing of a public bridge, § 230. to compel the widening of a street, § 230. to compel the issuance of a warrant for the collection of taxes, § 230. Public officers may be relators even against their co-officers. § 231. All parties in interest may be joined as relators, but it is not neces- sary, § 232. Parties can be joined as relators, when have a common right and are joint sufferers, § 232. Where a part of a fund was decreed to each of four parties, they were not allowed to apply jointly for a mandamus to compel its payment, § 232. When several officers are turned out of office, they cannot join in a writ to be restored, § 232. in one case they were allowed to join, § 232. When an officer is the relator, his successor can continue the pro- ceedings, § 233. Death abates the writ in the case of a private relator, § 233. REMEDY : This writ issues because there is no other remedy, §§ 10, 209. To bar the use of a mandamus — such other remedy must be specific, § 13. must be adequate and a legal remedy, § 51. must be speedy, § 52. Writ not granted because speedier than other remedy, § 52. Writ granted if delay attending other remedy would permit mate- rial injury, §§ 52, 198. Other remedy is adequate if it compels the performance of the neg- lected duty, § 53. Such remedy must be against the proposed respondents and not against third parties, §§ 53, 184. Writ will be granted when law intended it to be available, though another remedy may be used, § 52. Such remedy must be a legal remedy, § 54. An equitable remedy only appeals to the discretion of the court as to the propriety of issuing this writ, § 55. An obsolete remedy is not considered to be a bar, § 54 INDEX. 45' EEMEDY (continued) : If it is doubtful whether there is an adequate remedy, the writ issues. §53. A writ to pay a claim for salary has been refused, because suit could be brought, §§111, 135. 136. If the law has specifically provided another remedy, the writ will be refused, §g 55, 116, 194 A mandamus to issue a certificate of election will not be granted. when the relator is contesting the election by suit, § 153. A court will not be compelled by this writ to grant an appeal, when the appellate court can grant it, § 209. A court will not be compelled to approve an appeal bond, when a judge of the appellate court can do so, § 209. Court in its discretion will refuse the writ, when a cause is pending in another court, wherein the matter may be settled, § 82. But such suit must be maintainable and must finally settle the mat- ter, § 84 Ordinarily the writ will be refused, if another tribunal can direct the act to be done. § 84 Owing to the absence of other remedy, the writ has issued — to vacate an improper order to produce the party's books, § 201. quashing an indictment alleged not to have been properly found, § 201. to set aside the dismissal of an appeal from a nonsuit, § 201. to review the court's order to a justice to make return of a case appealed, though his fees have not been paid, § 201. Though there is no other remedy, a mandamus will not lie, when the law intended the action of the officer to be final, § 313. REMOVAL OF CAUSES: Writ not issued by state court to inferior state court to transfer a cause to a federal court, § 220. A federal court cannot by this writ compel a state court to transfer a cause to it, § 220. After an order of transfer of a cause to a federal court, a superior state court will not compel the subordinate state court to proceed and try the cause, § 220. If a transfer has been denied, mandamus lies to such state court to proceed to try the cause, § 220. Writ will not lie to a federal court to remand a cause erroneously transferred to it, § 220. In such case remedy is by appeal from judgment, if allowable: otherwise, its judgment is final, § 220. After a federal court has remanded a cause to a state court, under the statute of 1887, the former court cannot be required by this writ to proceed to try the cause, § 220. An original mandamus proceeding is not transferable from a state to a federal court, § 220. 458 INDEX. REMOVAL FROM OFFICE: When a public corporation can remove one of its officers, § 147. If wrongfully removed, may be restored by mandamus, § 148. Courts will pass on the legality of the removal, § 147. Officer must have opportunity to be heard before removal, § 147. Record of removal should show the proceedings, § 147. When authorized parties have investigated and removed, courts will not re-investigate the charges, § 147. Suspension from office equivalent to removal from office, so far as the use of this writ is concerned, § 148. When quo warranto is considered to be the proper remed}-, this writ is refused, § 148. Courts will not grant this writ to restore an officer — when the office is held at the pleasure of the respondents, § 149. when the relator can be regularly removed for the same causes, §149. when party not ousted, but merely intruded upon, § 150. The writ will not be granted to compel the removal of an officer from his office, when such action is discretionary with respondent, § 151. See Officers. REPLEVIN : Is not an adequate remedy to obtain possession of public books or documents, §§ 103, 154. REPLY : Formerly not allowed to return, § 4. Allowed by statute of 9 Anne in some cases, § 5. Allowed by statute of 1 William IV. in all cases, § 5. New allegations of return may be always traversed. § 268. Traverse to return should be single, direct and positive, § 288. Should traverse or confess and avoid facts set up in return, § 288. Should not re-affirm allegations of writ not answered by return, §288. If return merely a denial of allegations of writ, no reply required, §288. Reply, taking issue on immaterial questions, is bad on demurrer, §289. An evasive reply may be treated as admitting the facts charged, §288. Reply and subsequent pleadings subject to general rules of pleading, $289. An illustration, § 322. RES JUDICATA: A judgment in mandamus on the merits is a bar as to those issues in any legal proceeding, until reversed or set aside, § 315. index. 459 RES JUDICATA (continued) : Such judgment is not a bar when the writ was quashed — because it was informal, or defective by omission of proper par- ties or allegations, § 315. because it did not disclose a proper case for the writ, § 315. When the court had jurisdiction of parties and subject-matter its judgment in mandamus cannot be attacked collaterally, § 315. A judgment in mandamus against a county is conclusive "as to all matters which could, have been set up therein in a bill in equity subsequently filed against it by other inhabitants of the county, § 315. When to obtain power to levy a tax to pay a judgment on bonds the court must go behind the judgment, it cannot decline to rec- ognize the fact that the bonds are void, § 218. See Judgments. RESPONDENT : Party whose duty it is to do the act desired must be the respondent §234. Person having no duty in the premises must not be made a respond- ent, § 241. Only those charged with the duty can be joined as such, § 234a. All charged with the duty must be joined as such, though some willing to act, § 234a. contrary ruling, § 235. May be joined as such, if duty to be done by one or other, § 234a. All parties concerned in separate but co-operative steps leading to one result may, but are not required to, be joined as respond- ents, § 235. contrary rulings, § 236. Cannot be joined if their duties are distinct, § 234a. If an improper joinder of respondents, writ will be dismissed, § 234a. Writ not lie if government is a necessary respondent, § 89. Cannot be if his term of office has expired, § 241. if his office has been abolished, § 241. May be, though he has resigned, if resignation does not vacate office §239. Will not issue to a court, acting under a special commission after its expiration, § 211. Respondent is proper party to make return to alternative writ, § 382. If other parties make the return, they are liable to an attachment §282. Court will protect respondent's rights. § 81. Court will not involve him in doubtful litigation, § 81. Will not be compelled to be a trespasser, § 81. Will not be allowed to be harassed by suits, § 82. See Abatement; Contempt; Corporations; Officers. 460 INDEX. RETURN OF OFFICER: See Sheriff. RETURN TO ALTERNATIVE WRIT: Originally not allowed, § 2. Corresponds to answer in ordinary suit, § 253. If not made peremptory writ may be granted, § 266. If not made may be compelled by attachment, § 266. May be of obedience to the writ, § 267. In such case should follow mandatory clause of writ and clearly show obedience, § 267. Relator may traverse such return as not true or a mere evasion, § 267. It may state obedience to part of writ and reasons for not obeying other part, § 267. May deny allegations of alternative writ, § 267. May set up new matter constituting a defense, £ 267. May be informal, but must contain necessary allegations, § 273. Once required to have very great certainty, § 274. Certainty to a common intent is now sufficient, § 274. Its traverses must be positive, direct, single and special, § 274. A general denial in it is a nullity. § 274. Traverses must be confined to statements in writ, § 274. Return is sufficient if it follows suggestions of writ. § 276. Cannot deny allegations of writ on information and belief, § 280. Allegations of writ which it does not notice are taken as true, § 274. Should show a legal reason for not obej-ing. § 274. Must be very minute in showing reasons for disobedience of writ, §280. May contain several defenses if consistent, § 277. Is bad if defenses are inconsistent, unless some are bad, and after they have been quashed the remainder are consistent, § 277. When some of the defenses are bad in law, they may be quashed, and relator required to plead to residue, § 277. New facts must be set out positively and distinctly, § 274. Allegations of must be positive, and not on information and belief, §280. Each plea must have certainty as to time, place and persons, § 274. Construed most strongly against pleader, § 274. Should not state inferences, £§ 274, 280. Great certainty required to alternative writ to restore a corporator, §275. Cannot consist of a bill in equity asking for an injunction against the prosecution of the writ, § 281. May plead in bar facts occurring after issue of writ, £ 279. Facts occurring after issue joined may be set up by plea puis dar- rein continuance, § 279. Need not be verified at common law, £ 283. INDEX. 4G1 RETURN TO ALTERNATIVE WRIT (continued): Court may require a verification, § 283. When verification required, only such positiveness of allegation should be required as party can make, § 280. Under early practice its allegations of fact could not be traversed, § 268. Then the remedy was by action for a false return, g 268. Reply thereto is now allowed, § 268. May be amended if adjudged defective, § 287. If evasive or frivolous, may be disregarded or stricken from files, § 284. May be withdrawn by leave of court, § 292. Title of, § 320. Signature to, § 320. Illustration of. § 322. See Affidavit; Amendment; Attachment; Corporator (Pri- vate Corporation) ; False Return (Action for) ; Respondent. RETURN TO PEREMPTORY WRIT: Strictly none save of obedience, § 297. Sufficient if act is done, though by another, § 297. Return, that corporator is restored, is sufficient, though he was noti- fied at once of new proceedings to remove him, § 299. Return, that statute has since forbidden the act or made obedience impossible, is sufficient, § 297. Prior to a return, court may grant rule to show cause why the per- emptory writ should not be quashed, § 297. If not made, court may issue an alias peremptory writ, an attach- ment, or grant order to show cause why an attachment should not issue, g 298. See Order to Show Cause why an Attachment Should Not Issue for Disobeying a Peremptory Writ; Order to Show Cause why the Peremptory Writ Should Not Be Quashed. RIGHT : Mandamus only lies to enforce a legal right, § 11. No legal right, when law provides no remedy for its violation, g 11. Writ never granted to enforce equitable rights, § 56. Title must not be inchoate, § 56. The right must be already established, § 56. If relator shows no interest in the matter, the writ will be refused. §66. Writ denied, if right of relator not clear, though respondent willing to act, §§ 56, 67. If relator's right expires before hearing, writ refused, 77. ROADS: See Highways. RULE: See Order. 462 INDEX. s. SALARIES : Mandamus lies to municipal officers to pay, § 136. Some courts assert a suit is a sufficient remedy, §§ 17, 136. Party having commission and de facto officer may have this writ for, § 105. Teacher of public school may have this writ for, § 115. Writ for, lies from date of right, though inducted into office later, § 153. When salary fixed by law, claim need not be audited, § 135. See Prima Facie Title; Warrant. SCHOOL FUNDS: Writ lies to obtain payment out of, when payments made by city treasurer on order of school board, § 19. SCHOOLS : Mandamus lies — to restore scholars improperly excluded, § 115. to admit scholars improperly excluded, § 115. to restore teacher improperly removed, § 115. to compel payment of salaries of teachers, § 115. to provide enough schools, § 1 15. to allow the use of certain text-books, § 115. to levy a tax to raise the amount of money required for the schools, § 129. to introduce into the schools the text-books properly adopted, § 115. to levy a tax to pay for building a school-house, § 129. Mandamus has been refused — to transfer a party for school purposes to another town, because an appeal would lie, § 53. to admit a colored child to a public school, because the father could bring suit, § 53. to contract for school books, when other books had been ille- gally adopted and purchased and then in use, § 66. Writ not granted in such matters, when public interests will suffer, §115. Colored children cannot be excluded from public schools, § 115. Query: Can separate schools be provided for colored children, § 115. Because of discretion allowed, writ not issue to approve of a school teacher, § 115. In discretionary matters writ will issue to come to some conclusion, §115. Writ will be refused to keep school open, when such period has passed, 77. A father can assert his child's rights in the public schools, § 228. INDEX. 463 SEALS : Writ lies to corporate officers to put corporate seal to official certifi- cates, § 109. SECRETARY OF THE INTERIOR: Writ not lie to issue a patent for public lands, § 100. unless already duly signed, sealed, countersigned and recorded, § 101. SECRETARY OF STATE (STATE): Writ lies to compel performance of a ministerial act, § 102. Writ has been issued to him — to allow an account and draw his warrant therefor, § 102. to publish acts of the legislature, § 102. to furnish a copy of the laws for publication, § 102. to attest and record commissions of officers, § 102. to complete election returns and give certificates of election, §102. to revoke the licenses of foreign insurance companies, § 102. to issue proper notices of election, § 102. SECRETARY OF STATE (UNITED STATES): Mandamus refused to compel him to pay to claimant money re- ceived from a foreign government in payment of a private claim, §101. SECRETARY OF THE TREASURY: Writ refused to pay relator amount allowed by another departnu nt. §100. SERVICE OF WRIT : Writ to be served on the mayor or highest officer of a municipal cor- poration, § 237. Writ to be served on highest officer of a private corporation or the body to do the duty desired, § 237. Mode of service of writ is regulated by statute, § 237. SHERIFF: As ministerial duties this writ has issued to him — to put a party into possession of property according to decree, §123. to make his return accord with the truth, § 123. to surrender property he was no longer entitled to hold, § 123. to appoint appraisers, § 123. to set out a debtor's exemptions, § 123. to sell an estate as an entirety, § 123. to make a deed for property sold by him, § 123. In the latter case the writ must contain averments showing the sale to have been according to law, § 256. 464 INDEX. SHERIFF (continued) : The writ has been refused — when there was a doubt as to his duty, § 123. to make a deed for property with recitals which were not true, §123. to execute a judgment on property when the title was in dis- pute, g 123. to deliver over the surplus on a sale for taxes, there being an- other remedy, § 123. Writ issues to court to allow him to amend his return, § 189. Writ not lie to, to produce prisoner, when has already delivered him to other officers, § 75. SOCIETIES : Mandamus does not run to unincorporated societies, § 157. STATE : United States can impose no duty on a state officer and compel him to perform it, § 219. See Government. STATE LAND OFFICE (COMMISSIONER): Mandamus issues to, to issue patents for lands, § 106. See Executive Officers. STATE TREASURER: As a ministerial duty this writ lies to him — to issue certificates of election, § 103. to issue state bonds, § 103. to stamp state bonds, § 103. to surrender to municipality its invalid bonds, § 103. to pay warrants drawn on him, provided there is an appropria- tion, § 103. Writ refused to pay warrant so soon as he has money, § 103. Writ not lie to disobey instructions of the legislature, § 103. His decision as to the amount, but not the legality, of a claim is con- clusive. § 103. See Appropriations; Executive Officers; Salaries. STATUTE OF 9 ANNE : Generally adopted in America, § 7. STATUTES : Duty imposed by statute need not be specifically stated, §§ 13, 27. Party may put himself in a position subjecting him to such dutv, §13. May be mandatory, though in form permissive, § 34. Mandatory when public rights involved, or public or third parties have a right to have the power exercised, § 34. Officer cannot act so as to defeat a mandatory law, § 35. INDEX. 465 STATUTES (continued) : A sufficient statutory remedy will prevent issue of a mandamus, §51. A public body will not be compelled to violate a penal statute, § 60. United States can impose no duty on a state officer and compel him to perform it, £ 219. STOCK (CORPORATION): Mandamus to transfer generally refused, § 160. Allowed under special laws, § 160. Allowed in England, § 160. Damages for refusal to transfer not always held an adequate remedv §160. STOCKHOLDERS : See Books (Private Corporations) ; Corpora- tions (Private); Corporators. STREETS : When discretion allowed about improving, mandamus not lie to re- view decision not to improve, § 110. When right given to occupy, mandamus lies to fulfill duties imposed. §27. Writ not lie to a private corporation to open or keep in repair a street according to contract, §i$ 16, 53. Mandamus to remove obstructions put in a street by authority of a city must show an unlawful use of the street, § 109. See Bridges (Public): Highways; Taxes (Levy of). SUBPCENA DUCES TECUM : Mandamus refused to compel court to punish for disobeying, § 187. SUBSCRIPTIONS : Mandamus issues to county officers to subscribe to railroad 6tock as authorized by vote, § 111. But law must impose the duty to subscribe on such vote, § 128. In such case tax-payers, but not the railroad, may compel the sub- scription, § 228. When subscription once made, writ lies to issue the bonds therefor. §128. or to raise the money therefor, as statute may provide, § 128. A municipal subscription may impose conditions, though the law is silent, § 128. A- proposition by a railroad, accepted by vote of a municipality, be- comes a contract if the law so provides, and this writ lies to com- pel the issue of the bonds upon tender of the stock, g 128. A compliance with an ordinance by a railroad authorizes a man- damus to compel the city to issue its bonds, if the law makes it its duty then to do so, § 128. 30 466 INDEX. SUBSCRIPTIONS (continued) : Writ not lie to issue bonds to a railroad already completed, if the law only authorized their issue to assist in completing, § 128. Writ will be refused to compel a municipality to issue its bonds to a railroad, if bribery was used to control the vote therefor, § 68. SUCCESSORS : A mandamus begun by an officer may be continued by his successor, §233. See Relator ; Respondent. SUPERSEDEAS : In England a peremptory mandamus is not suspended by appeal with indemnifying bond, § 309. The decisions in America are conflicting, § 309. Mandamus will lie to carry a decree into effect, when a supersedeas is wrongfully granted on an insufficient bond, § 189. SUSPENSION FROM OFFICE : See Removal from Office. T. TAX SALE: Mandamus lies to a treasurer to pay to purchaser at tax sale such money as he received on the redemption of the land, § 135. Writ not lie to make a tax deed, when it will convey no title, § 75. TAXES : Mandamus lies to refund taxes paid under an erroneous assessment, §111. to pay taxes on the stock of a corporation when there is no other remedy by which to obtain them, § 19. Writ will not lie to tax collector for not collecting taxes illegally . assessed, § 83. to place taxes levied on the tax list when they exceed the rates allowed by law, § 60. Being a judicial act, writ will not lie — to correct an error in a tax duplicate, § 31. to a court to increase school taxes, § 187. to a court to direct its judgment in an application about a tax assessment, § 187. TAXES (LEVY OF): Writ not lie to levy a tax unless the claim is a legal charge, § 130. Claim must be so established that it cannot be controverted, § 130. Proof of claim should be equivalent to a judgment or debt of record, § 130. Unadjusted claims must be first audited, § 130. .If municipal bonds are questioned in law or fact, judgment must first be obtained on them, § 17. I MM V. 4(i ' i TAXES (LEVY OF) (continued): When liability is doubtful a judgment must be first obtained, § 139. When liability ascertained mandamus issues to levy tax to pay. g 180l "Writ lies to councy officers to settle a claim against a county and to levy a tax to pay it, £ 111. Law may specifically provide for levying a tax to pay a claim with- out auditing it £ 130. This writ will issue to levy a tax — to pay claims allowed by county commissioners, § 130. to pay judgments, §§ 113, 129, 130. to pay the expenses of constructing public buildings, § 129. to pay the expenses of constructing a public harbor, § 129. to pay for building a school-house, g 129. to create a fund to pay a certain indebtedness, § 129. to raise the amount required for schools. ^ 129. to pay municipal bonds and interest on them, jj 129. to pay the damages assessed for opening a street, § 129. to pay the bounties promised to soldiers, § 129. "Writ will not lie unless respondents have legal power to levy the tax, §§ 129, 130. Writ will not lie if statute requiring the levy is void, § 129. "When money is to be raised as in other cases, a tax may be levied, §129. The only power for raising money is by taxation, unless othtrwM provided by law, § 129. Power to create a debt, incur an obligation or to expend large sums of money implies a power to levy a tax, unless otherwise pro- vided, § 129. The writ must comply with the law as to manner of collecting and amount of the tax, § 129. Limitation of power to levy must be urged in the original suit and not in mandamus proceedings to levy a tax to pay the judgment) §218. Writ lies to levy tax to pay a claim when suit cannot be brought on it, § 130. Federal courts can compel municipal officers to levy taxes to pay their judgments, § 218. State officers cannot be compelled to do any act not their dutv In- state law. §§ 60, 218. Federal courts must use state officers to levy and collect taxes, §218. The collection of taxes cannot be required faster than provided In- law, § 132, The levy must be specifically made for the claim urged and sepa- rately, § 132. A new levy may be ordered without waiting for payment by delin- quents, § 132. 468 INDEX. TAXES (LEVY OF) (continued) : Levies may be ordered for successive years, § 132. A demand to levy a tax without stating amount of liability is insuf- ficient, § 257. Writ will be refused when all the money that can be raised is re- quired for the ordinary and necessary public expenses, §§ 66, 132. Court may require a full return of expenses to show such necessity, § 132. Court will confine expenses of municipality to such necessities, § 132. A sufficient return to such writ that all the taxes allowed have been levied, § 218. Writ will be refused when appeal pending and the collection of the judgment is not endangered, § 72. When suit to recover taxes erroneously paid is barred, a writ to levy a tax to repay money so paid will be refused, § 87. See Courts (Federal Circuit) ; Judgments. TELEPHONES : Mandamus lies to place telephones in private offices, § 162. Writ lies to treat all alike in the use of, £§ 25, 162. TERM (OF COURT) : Writ lies to compel the holding of a term of court, § 189. TERM (OF OFFICE) : This writ will not issue to an officer whose term of office has ex- pired, §§ 185, 241. or whose office has been abolished, § 241. This writ will not issue to a court acting under a special commis- sion which has expired, § 211. See Bill of Exceptions; Relator; Respondent; Time. TESTIMONY : Mandamus not issue to court to issue order for taking testimony of a prisoner, § 187. THIRD PARTIES: Court will protect the rights of third parties, § 83. Writ will be refused if it would involve them in difficulties and hard- ships, § 83. Writ will be refused if it might embarrass them in suits, § 83. May be subsequently introduced into mandamus proceedings if nec- essary to protect their rights, § 242. To be allowed to intervene in mandamus proceedings must show that they will gain or lose by the direct operation of the decision, § 242. They cannot intervene and ask for the determination of other ques- tions, § 242. If question doubtful let court order that they be made parties, § 243. INDEX. 4