eratic party, and members of the committee were restrained from attempting to include the intruders as members, is an injunction. Ware v. Welch (Tex.) 149 S. W. 263, 264.

As mandate

See Mandate.

As a prerogative writ

"Mandamus" is a remedy only to be applied in extraordinary cases where there is no other adequate remedy, and, where the applicant has an adequate remedy by action, the writ will not be allowed. It lies to compel the performance of a public duty prescribed by statute and to keep subordinate and inferior bodies and tribunals, exercising public functions, within their jurisdiction, "The 'writ of mandamus' was originally and to compel in proper cases the performance of specific duties imposed by law. The a prerogative writ, which the Court of King's writ will not be issued to enforce the per- realm for the prevention of disorder, from Bench was wont to issue to any part of the of an educational institute to grant a di- failure of justice or defect of police." Hamploma on fulfillment of certain conditions by lin v. Higgins, 67 Atl. 625, 628, 102 Me. 510. a student for which an action for breach of "Mandamus" is not a prerogative writ contract will lie. State ex rel. Burg v. Mil-running in the name of the sovereign, but is waukee Medical College, 106 N. W. 116, 118, 128 Wis. 7, 3 L. R. A. (N. S.) 1115, 116 Am. St. Rep. 21, 8 Ann. Cas. 407.

formance of a contract such as the contract

Injunction distinguished

The

The writ of "mandamus" is of most an

cient origin. It issued from a common-law court to afford extraordinary legal relief in cases where the ordinary remedy at law was inadequate. Originally it was a prerogative writ, so called from the fact that it proceeded from the king himself, in his Court of King's Bench, and was granted where one was entitled to an office or function and there was no other remedy. It still preserves many of its prerogative features in England, but in this state it is a writ of right. Southern Ry. Co. v. Atlanta Stove Works, 57 S. E. 429, 433, 128 Ga. 207 (citing High, Ex. Leg. Rem. § 3).

an ordinary process, available to any private citizen, to protect a private right when it is an appropriate remedy, and therefore the use of the name of the state in such cases is a mere form, and may be treated as surplusage. "An injunction' is essentially a preven-State ex rel. Watts v. Cain, 58 S. E. 937, 938, tive remedy; 'mandamus,' a remedial one. 78 S. C. 348. The former is usually employed to prevent future injury; the latter, to redress past grievances. The functions of an injunction are to restrain motion and to enforce inaction; those of a mandamus, to set in motion and to compel action. In this sense an injunction may be regarded as a conservative remedy; mandamus, as an active one. former preserves matters in statu quo, while the very object of the latter is to change the status of affairs and to substitute action for inactivity. The one is therefore a positive or remedial process; the other a negative or preventive one. And since mandamus is in no sense a preventive remedy, it cannot take the place of an injunction, and will not be employed to restrain or prevent an improper interference with the rights of relat* * Mandamus and injunction should not be confounded. The latter 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. 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 corrective 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. Mandamus is, however, compulsory, and requires doing the act." Callaghan v. McGown (Tex.) 90 S. W. 319, 324 (quoting and adopting definition in High, Extraordinary Legal Remedies [3d Ed.] § 6).

ors.

*

"Mandamus" is a prerogative writ of a remedial nature, and it is issued in all cases where the party has a right to have anything done and has no other specific means of compelling performance, and it lies to restore one to the enjoyment of an office or position of trust of a public nature from which he has been wrongfully removed; but one cannot by mandamus litigate and determine title to an office. State ex rel. Guion v. Miles, 109 S. W. 595, 606, 210 Mo. 127.

"Mandamus' is no longer treated as a purely prerogative writ. In its use in an original proceeding in modern practice the writ has come to be considered as merely an action at law between the parties. The right to the writ, and the power to issue it, has ceased to depend upon any prerogative power. It is nothing more than the ordinary process of a court of justice to which every one is entitled where it is the appropriate process An injunction is a preventive writ which for asserting the right he claims. restrains motion and enforces inaction, while Mandamus, although it is an extraordinary mandamus is a remedial writ which compels legal remedy, is in the nature of an equitable action and coerces the performance of a prop-interference, supplementing the deficiencies er existing duty, and hence a writ whereby of the common law. It will ordinarily be ispersons were restrained from intruding them- sued where a legal duty is established and selves on the county committee of the Demo- no other sufficient means exists for enforcing

it.

Where one has a substantial | 202 (quoting and adopting definition in State ex rel. Brown v. McQuade, 79 Pac. 208, 36 Wash. 579).

prerogative of the English crown, and issued "Originally the writ of mandamus was a in its name from the Court of King's Bench, requiring the performance of some specified duty which that court had previously determined, or at least supposed, to be consonant to right and justice. In modern times it is

right to protect or enforce, and there is no other adequate remedy at law, he is entitled, as a matter of right, to mandamus, or, at least, it is an abuse of discretion to refuse it. The courts of the state will entertain an action of mandamus by a foreign private corporation against one of its officers, resident of this state, of whom it cannot obtain jurisdiction in its own domicile, to compel such officer to turn over books, papers, etc., belong-sues as a judicial process in actions, often ing to the corporation notwithstanding the title to the office may be incidentally involved. Potomac Oil Co. v. Dye, 102 Pac. 677, 678, 10 Cal. App. 534 (citing and adopting Marbury v. Madison, 1 Cranch, 137, 176, 2 L. Ed. 60; Kendall v. United States ex rel. Stokes, 12 Pet. 524, 615, 9 L. Ed. 1181; Kentucky v. Dennison, 24 How. 66, 98, 16 L. Ed. 717; United States ex rel. Riggs v. Johnson County,

6 Wall. 166, 198, 18 L. Ed. 768).

"Mandamus" is not a creative remedy, and does not call into existence any new liability or duty, and never commanded the performance of an act which was unauthorized in the absence of the writ. The origin of this ancient writ is very obscure. It has undergone many changes during the generations in which it has been in use. It was originally a high prerogative writ, and the king's prerogative was part of the common law of England. It was the aggregate of the king's special powers and privileges-what Bracton calls "privilegia regis," and Britton "le droit le roy"-the personal rights or powers of supreme character exercisable without question and without responsibility. In re Lauritsen, 109 N. W. 404, 408, 99 Minn. 313.

The ancient writ of "mandamus" was a writ prerogative of the king, and issued only at his pleasure. It was an attribute of sovereignty, and a citizen could not as a right invoke its aid; but even at common law its scope became enlarged, and it could be invoked by the private citizen to compel the performance of a legal duty on the part of the courts and other tribunals; but the definition of the ancient writ is inapplicable under the Code, which prescribes the use of the writ and makes it simply one of the methods of procedure for the enforcement of rights or the redress of wrongs. State ex rel. Barto v. Board of Drainage Com'rs, 90 Pac. 660, 46 Wash. 474.

between private parties, in which a court of competent jurisdiction has previously adthe defendant therein of some specified duty, judged or commanded the performance by which under the law he should perform, and is the means by which such judgment or com

mand is enforced." A Circuit Court of the United States is without jurisdiction, either original or by removal from a state court, of

an action for a writ of mandamus, which is not necessary for the exercise by it of a jurisdiction which it has otherwise previously acquired; the writ of mandamus not being a suit of a civil nature at law or in equity, within the meaning of the acts of Congress creating the Circuit Courts of the United States and defining their jurisdiction. Mystic Milling Co. v. Chicago, M. & St. P. Ry. Co., 132 Fed. 289, 291.

As a civil action or proceeding

As suit of civil nature, see Suit of Civil
Nature.

Mandamus is a "personal action" within Rev. Code 1852, amended to 1893, p. 787, c. 105, § 2, declaring that all personal actions with specified exceptions shall survive, and is a suit at law within Const. art. 4, § 26, providing that no suit at law shall abate at the death of a party where the cause of action survives. State v. Jessup & Moore Paper Co. (Del.) 80 Atl. 350, 351.

Mandamus is a common-law action. People ex rel. Bauman v. Gest, 148 Ill. App. 560, 565.

"Mandamus" proceedings are civil actions within Pub. Acts 1905, p. 483, No. 309, providing for changes of venue in such actions. Woodworth v. Old Second Nat. Bank, 107 N. W. 905, 144 Mich. 338, 8 Ann. Cas. 310.

A proceeding in mandamus is a civil proceeding which may be in the name of the state at the relation of an individual or simply in the name of an individual as plaintiff. Rader v. Board of Education of Beaver Dist., 50 S. E. 240, 242, 57 W. Va. 220.

Formerly "mandamus" was regarded as a prerogative right and issued, not as of right, but at the pleasure of the sovereign or state and in his or its name as an attribute of sovereignty; but we say the writ is not in any sense a prerogative writ or a writ to A "mandamus" proceeding is an action be issued at the discretion of the court. It at law, and under the practice in this state is a procedure under the Code, and any per- the complaint takes the place of the alternason who has a cause that calls for its in- tive writ, the answer takes the place of the vocation has the same right to sue out the return, and subsequent pleadings will be had writ as he has to commence a civil action to until an issue is joined for trial on the merredress a private wrong. State ex rel. Chea-its, and the complaint, answer, and subselander v. Carroll, 106 Pac. 748, 750, 57 Wash.quent pleadings are governed by the rules of

the common law and must contain in substance the essentials of good pleading in an ordinary action at law. Clement v. Graham, 63 Atl. 146, 150, 78 Vt. 290, Ann. Cas. 1913E, 1208.

"Statutes everywhere seem to recognize the present proceeding by 'mandamus' as a civil action with the relator as the plaintiff and the respondent as the defendant." State ex rel. Atchison, T. & S. F. R. Co. v. Jefferson County Com'rs, 11 Kan. 67, 68, 69.

Prohibition compared

See Prohibition.

As special proceeding
See Special Proceeding.
Rights enforceable

Mandamus lies to compel the performance of an act which the law specifically enjoins as a duty resulting from an office. Bell v. Thomas, 111 Pac. 76, 78, 49 Colo. 76, 31 L. R. A. (N. S.) 664.

A writ of "mandamus" is a "writ is

sued in the name of the state to an inferior tribunal, a corporation, board, or person commanding the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station." State ex rel. Irvine v. Brooks, 84 Pac. 488, 491, 14 Wyo. 393, 6 L. R. A. (N. S.) 750, 7 Ann. Cas. 1108 (quoting Rev. St. 1899, § 4194). The office of a writ of mandamus is to compel specific action in the exercise of purely ministerial functions. If the performance of an official act involves discretion, courts, although they have power to demand action, have no right to say that it must be in a particular way. People ex rel. Quinn v. Voorhis, 100 N. Y. Supp. 717, 721, 115 App. Div. 118.

Under the statute, "mandamus" is intended to compel performance of any act which the law specifically enjoins as a duty resulting from an office, trust, or station. It is intended as a speedy remedy, and may be granted by the court in term time or by the judge at chambers. Beadles v. Fry, 82 Pac. 1041, 1042, 15 Okl. 428, 2 L. R. A. (N. S.) 855.

At common law the writ of "mandamus" is a writ of right every day made use of to oblige inferior courts to do justice but it will not be made use of to control the exercise of discretion. In general, it lies where one has been refused admittance to or turned out wrongfully from any office or franchise. Matney v. King, 93 Pac. 737, 745, 20 Okl. 22.

The remedy by "mandamus,” though appropriate to compel the performance of a legal duty, cannot be invoked to compel one to complete the making of a contract. Putnam Foundry & Machine Co. v. Town Council of Town of Barrington, 67 Atl. 733, 736, 25 R. I. 422.

3 WDS. & P.2D SER.-17

To support the remedy of "mandamus" a plain and unambiguous duty which it is designed to enforce must already have been imposed by law. Where any person has a right to demand the exercise of a public function, and there is an officer or set of of

ficers authorized to exercise that function,

there the right and the authority give rise to the duty; but when the right depends upon the grant of the authority, and that authority is discretionary, no legal duty is imposed. Caven v. Coleman, 101 S. W. 199, 200, 100 Tex. 467 (citing Carr v. Northern Liberties, 35 Pa. 324, 78 Am. Dec. 342).

The writ of "mandamus" will not lie except to compel performance of an act which the law specifically enjoins as a duty, resulting from an office, trust, or station, and it will not lie to compel a district judge to enter of record in the district court of a certain county in his district an alleged order admitting defendant to bail, where it appears that the same is not there properly entitled to record. State ex rel. Stevenson v.

Russell, 95 Pac. 463, 1 Okl. Cr. 165.

Rev. St. 1899, § 4194, defines "mandamus" as a writ issued in the name of the state to an inferior tribunal, corporations, boards, or persons, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. State ex rel. Wyoming Agricultural College v. Irvine, 84 Pac. 90, 91, 14 Wyo. 318.

The writ of "mandamus" is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law; and it is granted on the motion of the party aggrieved, or of the commonwealth when the public interest is affected. It is not a proper remedy to compel a telephone company to install an instrument. Williams v. Maysville Tel. Co., 82 S. W. 995, 996, 119 Ky. 33 (quoting and adopting definition in Civil Code of Prac. § 477).

The object of a "mandamus" is to enforce specific relief, and it is the inadequacy, rather than the absence of, other legal remedies, coupled with the danger of a failure of justice without the aid of a mandamus, which usually determines the propriety of relief by mandamus. Mandamus is the proper remedy for enforcing performance by a traction company of its duty to pave a street pursuant to the terms of the ordinance granting to its predecessor the right to locate tracks in such street. Borough of Rutherford v. Hudson River Traction Co., 63 Atl. 84, 90, 73 N. J. Law, 227.

Under the express provisions of Code Civ. Proc. § 1085, "mandamus" can only be issued to compel the performance of an act required by law, or to compel the admission