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the common law and must contain in sub- To support the remedy of "mandamus" stance the essentials of good pleading in an a plain and unambiguous duty which it is ordinary action at law. Clement v. Graham, designed to enforce must already have been 63 Atl. 146, 150, 78 Vt. 290, Ann. Cas. 1913E, imposed by law. Where any person has a 1208.

right to demand the exercise of a public “Statutes everywhere seem to recognize function, and there is an officer or set of ofthe present proceeding by 'mandamus' as a

ficers authorized to exercise that function, civil action with the relator as the plaintiff there the right and the authority give rise to and the respondent as the defendant." State the duty; but when the right depends upon ex rel. Atchison, T. & S. F. R. Co. v. Jeffer the grant of the authority, and that authorson County Com’rs, 11 Kan. 67, 68, 69.

ity is discretionary, no legal duty is im

posed. Caven v. Coleman, 101 S. W. 199, 200, Prohibition compared

100 Tex. 467 (citing Carr v. Northern LiberSee Prohibition.

ties, 35 Pa. 324, 78 Am, Dec. 342). As special proceeding

The writ of "mandamus" will not lie exSee Special Proceeding.

cept to compel performance of an act which

the law specifically enjoins as a duty, reRights enforceable

sulting from an office, trust, or station, and Mandamus lies to compel the perform- it will not lie to compel a district judge to ance of an act which the law specifically en- enter of record in the district court of a joins as a duty resulting from an office. Bell certain county in his district an alleged orv. Thomas, 111 Pac. 76, 78, 49 Colo. 76, 31 «ler admitting defendant to bail, where it L. R. A. (N, S.) 664.

A appears that the same is not there properly A writ of “mandamus” is a "writ is. Russell, 95 Pac. 463, 1 Okl. Cr. 165.

entitled to record. State ex rel. Stevenson v. sued in the name of the state to an inferior tribunal, a corporation, board, or person Rev. St. 1899, $ 4194, defines "mandacommanding the performance of

act mus" as a writ issued in the name of the which the law especially enjoins as a duty state to an inferior tribunal, corporations, resulting from an office, trust or station.” boards, or persons, commanding the performState ex rel. Irvine v. Brooks, 84 Pac. 488, ance of an act which the law specially en491, 14 Wyo. 393, 6 L. R. A. (N. S.) 750, 7 joins as a duty resulting from an office, trust, Ann. Cas. 1108 (quoting Rev. St. 1899, $ 4194). or station. State ex rel. Wyoming Agricul

The office of a writ of mandamus is to tural College v. Irvine, 84 Pac. 90, 91, 14 compel specific action in the exercise of pure

Wyo. 318. ly ministerial functions. If the performance The writ of "mandamus" is an order of of an official act involves discretion, courts, a court of competent and original jurisdicalthough they have power to demand action, tion, commanding an executive or ministerial have no right to say that it must be in a officer to perform an act, or omit to do an particular way. People ex rel. Quinn V.' act, the performance or omission of which is Voorhis, 100 N. Y. Supp. 717, 721, 115 App. enjoined by law; and it is granted on the Div. 118.

motion of the party aggrieved, or of the comiUnder the statute, “mandamus" is in- monwealth when the public interest is aftended to compel performance of any act fected. It is not a proper remedy to compel which the law specifically enjoins as a duty a telephone company to install an instruresulting from an office, trust, or station.

ment. Williams v. Maysville Tel. Co., 82 S. It is intended as a speedy remedy, and may W. 995, 996, 119 Ky. 33 (quoting and adoptbe granted by the court in term time or by ing definition in Civil Code of Prac. $ 477). the judge at chambers. Beadles v. Fry, 82 The object of a "manda mus" is to enPac. 1041, 1042, 15 Okl. 428, 2 L. R. A. (N. force specific relief, and it is the inadequacy, S.) 855.

rather than the absence of other legal At common law the writ of "mandamus” remedies, coupled with the danger of a failis a writ of right every day made use of to ure of justice without the aid of a mandaoblige inferior courts to do justice but it mus, which usually determines the propriety will not be made use of to control the exer- of relief by mandamus. Mandamus is the cise of discretion. In general, it lies where proper remedy for enforcing performance by one has been refused admittance to or turned a traction company of its duty to pave a out wrongfully from any office or franchise. street pursuant to the terms of the ordinance Matney v. King, 93 Pac. 737, 745, 20 Okl. 22. granting to its predecessor the right to loThe remedy by "mandamus,” though ap. Rutherford v. Hudson River Traction Co., 63

cate tracks in such street. Borough of propriate to compel the performance of a legal duty, cannot be invoked to compel one

Atl. 84, 90, 73 N. J. Law, 227. to complete the making of a contract. Put- Under the express provisions of Code nam Foundry & Machine Co. v. Town Coun- Civ. Proc. § 1085, "mandamus" can only be cil of Town of Barrington, 67 Atl. 733, 736, issued to compel the performance of an act 28 R. I. 422.

required by law, or to compel the admission 3 Wp9.& P.2D SER.-17

*

*

of a party to the enjoyment of a right or Code, s 1417, provides that the board of office to which he is entitled and from which supervisors shall direct the treasurer to rehe is unlawfully excluded. Maxwell v. fund any tax erroneously or illegally exacted Board of Fire Com’rs of City and County of or paid, with all interest actually paid San Francisco, 72 Pac. 996, 997, 139 Cal. 229. thereon. Section 4341 defines "mandamus"

Under Rev. St. 1899, § 4194, «defining as an action to compel an inferior board to "mandamus” as a writ issued in the name of do an act, the performance of which the law the state to an inferior tribunal, corpora- enjoins as a duty resulting from an office, tion, board, or persons, commanding the per- trol discretion. Held, that there could be

and provides that mandamus cannot conformance of an act which the law specially enjoins as a duty resulting from an office, of supervisors to order the payment of in

no recovery in mandamus to compel a board trust, or station, and section 4197, providing that the writ must not be issued where there terest on taxes erroneously exacted founded is a plain and adequate remedy at law, ly for the return of interest paid, and the

on section 1417; the section providing meremandamus” to compel an officer of a pri- word "refund” meaning to pay back, to vate corporation to permit the inspection of books, papers, and effects in his possession restore Home Sav. Bank v. Morris, 120 N.

W. 100, 141 Iowa, 560. and control, is the proper form of remedy to enforce the right of stockholders to in

"The function of 'mandamus' is to comspect the books and records of the corpora- pel the performance of a legal duty, to tion, where the officer having the custody command action, not to review action, to denies the stockholder access thereto. Wyo- complete the unfinished. It is the remedy ming Coal Min. Co. v. State ex rel. Kennedy, for nonfeasance.

It does not lie 87 Pac. 984, 985, 15 Wyo. 97.

to correct mistakes that have been made or Mandamus lies to compel an inferior. Kenney v. State Board of Dentistry, 59 Atl.

to remedy wrongs that have been done.” board or person to do or not to do an act, 932, 933, 26 R. I. 538 (quoting Corbett v. Naythe performance or omission of which the lor, 57 Atl. 304, 25 R. I. 522). law enjoiņs as a duty from an office, trust, or station, and, when discretion is left to such

"Mandamus' will not enforce the perboard or person, mandamus may compel it to formance of official duty, unless the duty act in some way, but cannot control such dis- sought to be enforced is clearly within the cretion under the express provisions of Code, scope of such officer's duty." Where two peti§ 4341. State v. Parker, 125 N. W. 856, 864, tions are pending asking for the sale of the 147 Iowa, 69.

same tract of school land, one of which re

quests that it be sold as leased land, and “The province of a writ of mandamus is the other to an actual settler, and appraisers to afford redress where a party has a right are appointed and qualified to appraise the to have anything done and has no other spe- land as leased land, they cannot be compelcific means of compelling its performance. led by mandamus to act as appraisers under The writ is also applicable in certain cases the other petition. Wilson v. Winfrey, 84 where a duty is imposed by statute for the Pac. 123, 72 Kan. 468. benefit of an individual." State ex rel. Guenther v. Charleston Light & Water Co.,

"Mandamus" is a writ issuing in the 47 S. E. 979, 983, 68 S. C. 540.

name of the people, originally instituted for

the purpose of correcting official inaction "The modern writ of mandamus may be and to compel the performance of some legal defined as a command issuing from a com- duty; and although it has been extended by mon-law court of competent jurisdiction, in the court from time to time, and has been the name of the state or sovereign, directed held to lie where formerly it was thought to some corporation, officer, or inferior court, not to apply, it has not been, nor should it requiring the performance of a particular be, extended to obtain property or to furnish duty therein specified, which duty results evidence of title to property, that the owner from the official station of the party to whom may be more certainly possessed of it, or the writ is directed, or from operation of that it may be more conveniently transferred law." Milster v. City Council of Spartan- by him. People ex rel. Rottenberg v. Utah burg, 47 S. E. 141, 68 S. C. 243 (quoting High, Gold & Copper Mines Co., 119 N. Y. Supp. Toxtr. Leg. Rem. 4); State ex rel. Huebler v. 852, 853, 135 App. Div. 418. Board of Police Com’rs, 82 S. W. 960, 962,

"Mandamus" does not lie against a pri108 Mo. App. 98.

vate citizen. In other words, where the writ The statutory duty of the trial judge is sought to be invoked, the proper inquiry to settle and sign a bill of exceptions may is: Does the duty sought to be enforced be enforced by "mandamus," where he clearly result from an office, trust, or staarbitrarily refuses to act, though he cannot tion? If so, the writ should run; otherwise be required to perform the duty in a particu- not. This is the common law and is emlar manner by signing a particular bill. bodied in Wilson's Rev. & Ann. St. 1903, $ State ex rel. Columbus St. Ry. & Light Co. (4884) 686, which is as follows: "The writ v. Deupree, 81 N. E. 678, 679, 40 Ind. App. of mandamus may be issued by the Supreme 492.

Court or the district court, or any justice or

mus

judge thereof, during term or at chambers, to ! respondent to perform the act required. If any inferior tribunal, corporation, board or either the right or the duty be doubtful, the person, to compel the performance of any writ will not be issued. A duty arising out act which the law specially enjoins as a of statute must not be merely permissive or duty, resulting from an office, trust or sta- discretionary, but the statute must require tion.

Eberle v. King, 93 Pac. 748, the act to be done, or it will not be enforced 753, 20 Okl. 49 (citing 26 Cyc. pp. 163, 164). by mandamus. State V. Jackson, 81 N. E.

According to Rev. St. 1899, $ 4194, 62, 63, 168 Ind. 384. * mandamus' is a writ issued in the name of A "writ of mandamus" is a command the state to an inferior tribunal, a corpora- issuing from a court of law of competent tion, board, or persons, demanding the per- jurisdiction, in the name of the state, directformance of an act which the law specially ing some inferior court, officer, corporation, enjoins as a duty resulting from an office, or person to some particular thing therein trust or station," and, according to section specified which pertains to his office or duty. 4197, “the writ must not be issued in a It will not lie against one who does not occase when there is a plain and adequate rem-cupy an official or quasi official position, edy in the ordinary course of the law.” Wy- but it will lie not only against public officers, oming Coal Mining Co. v. State ex rel. Ken- but against private officers in certain cases, nedy, 87 Pac. 337, 338, 15 Wyo. 97, 123 Am. and against public and private corporations. St. Rep. 1014.

It will lie to enforce a public duty, and the It is the special office of the writ of officials of a railroad company can be com“mandamus” to compel a ministerial officer pelled to perform certain duties by mandato perform the duties of his office, and the duties to the state and are subject to its

on the theory that they owe those writ will lie though the duties of the officer

visitorial powers. Gas, water, and telephone are of a quasi judicial character, and consist of a discretion which cannot be review companies can also be compelled by mandaed by the courts, where the object sought is mus to discharge their duties to the public. to compel an exercise of the discretion. Rouse v. Thompson, 81 N. E. 1109, 1120, 228 State ex rel. Howe v. Kendall, 87 Pac. 821, Agents, & 926; People ex rel. Hempstead v.

Ill. 522 (citing Mechem, Public Officers & 822, 44 Wash. 542.

Chicago & A. R. Co., 55 Ill. 95, 8 Am. Rep. "Mandamus" is a legal remedy, and lies 631; Chicago & A. R. Co. v. Suffern, 21 N. for the enforcement of legal rights only, and E. 824, 129 Ill. 274; People ex rel. Cantrell under Burns' Ann. St. 1908, $ 1225, provid- v. St. Louis, A. & T. H. R. Co., 52 N. E. 292, ing that writs of mandate may be issued 176 Ill. 512, 35 L. R. A. 656; Litchfield & M. to any inferior tribunal, corporation, board, Ry. Co. v. People, 78 N. E. 589, 222 111. 242; or person, to compel the performance of an People v. Chicago, I. & L. Ry, Co., 79 N. E. act which the law specially enjoins, or a 144, 223 Ill. 581, 7 Ann. Cas. 1; 2 Spelling, duty resulting from an office, trust, or sta- | Injunctions & Other Extraordinary Remetion, to justify the issuance of the writ it is dies [2d Ed.] $ 1592). essential that the relator have a clear legal

Though "mandamus" will not generalright to the thing demanded, and that it be ly lie to compel performance of a power, the the imperative duty of the respondent to exercise of which is in the discretion of perform the required act. State ex rel. Hat- the officer against whom the writ is sought, field v. Cummins, 85 N. E. 359, 360, 171 Ind. the remedy is available if the action of the 112, 36 L. R. A. (N. S.) 945.

officer is capricious, arbitrary, unreasonable, In Ohio "mandamus” is not used for the or based on false information. People ex rel. redress of private wrongs, but only in mat. Empire City Trotting Club v. State Racing ters relating to the public. The writ is Commission, 82 N. E. 723, 190 N. Y. 31. the proper remedy to restore a party to the "Mandamus" cannot be rightfully in. possession of an office from which he has voked to settle a doubtful claim to an office, been illegally removed. State ex rel. Moyer or to have the title to an office adjudicated v. Baldwin, 83 N. E. 907, 908, 77 Ohio St. upon as between adverse claimants, but “in532, 19 L. R. A. (N. S.) 49, 12 Ann. Cas. 10. formation in the nature of a quo warranto"

Burns' Ann. St. 1901, § 1182, provides affords the proper remedy. Where the rethat “writs of mandamus may be issued lator holds a prima facie and uncontested to any inferior tribunal, corporation, board title to the office, or his title has been ador person, to compel the performance of an judicated upon and finally established by a act which the law specially enjoins, or a duty competent tribunal, a writ of "mandamus" resulting from an office, trust or station." may be issued to put him in possession of This statute is substantially declaratory of the office as well as of the books, papers, and the common-law doctrine. “Mandamus" is other property pertaining to it. Hoy v. State in no sense an equitable proceeding, but is a

ex rel, Buchanan, 81 N. E. 509, 512, 168 Ind. common-law remedy to compel performance 506, 11 Ann. Cas. 914 (citing Mannix v. State of a legal duty, and the relator must have ex rel. Mitchell, 17 N. E. 565, 115 Ind. 245). a clear legal right to the thing demanded, "Mandamus" does not lie to compel the and it must be the imperative duty of the payment of an unliquidated unadjudicated

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claim that is disputed. Howell v. State ex | to some tribunal, corporation, or public ofrel. Edwards, 45 South. 453, 454, 54 Fla. 199 ficer, requiring them to do some particular (citing Whitesides v. Stuart, 20 S. W. 245, thing therein specified, and which the court 91 Tenn. 710; Hicks v. Board of Auditors of has previously determined that it is the duty Wayne County, 57 N. W. 188, 97 Mich. 611; of such tribunals or other person to perform. State Board of Education v. West Point, 50 * * It does not lie to correct the errors Miss. 638).

of inferior tribunals by annulling what they "Mandamus," as defined by Civ. Code have done erroneously, nor to guide their Prac. § 477, and the courts, is a writ com- discretion, nor to refrain them from exermanding the performance of some duty, in cising power not delegated to them; but it the performance of which the applicant for is emphatically a writ requiring the tribunal the writ is interested, or by the nonperform-or person to whom it is directed, to do some ance of which he is aggrieved or injured. particular act appertaining to their public Louisville Home Telephone Co. v. City of duty, and which the prosecutor has a legal Louisville, 113 S. W. 855, 857, 130 Ky. 611. right to have done.

The 'writ of Mandamus may not be invoked to review mandamus' is the counterpart of the writ of a judicial or quasi judicial decision. The

prohibition, and is so designated in some primary object of the writ of mandamus is states by statute. "Mandamus' is a legal to compel action. It neither creates nor con- remedy to compel action in accordance with fers power to act, but only commands the legal duty, while ‘prohibition' is a legal remeexercise of powers already existing, when it dy to restrain action in excess of legal auis the duty of the person or body proceeded thority." State ex rel. Pelton v. Ross, 81 against to act without its agency. While it Pac. 865, 867, 39 Wash. 399 (quoting and may require the performance of a purely adopting the definition in Dunklin County ministerial duty in a particular manner, its v. Dunklin County District Court, 23 Mo. 454). command is never given to compel the dis- “ 'Mandamus' is a command issued from charge of a duty involving the exercise of a court of law of competent jurisdiction in judgment or discretion in any specified way, name of the state directed to some inferior for that would substitute the judgment or court, officer, corporation, or person requirdiscretion of the court issuing the writ for ing them to do some particular thing therein that of the person or persons against whom specified, which appertains to their office or the writ was issued. People ex rel. McCabe duty.” It lies in cases involving merely the v. Matthies, 87 N. Y. S. 196, 198, 92 App. performance by a county official of his plain, Div. 16 (citing People ex rel. Harris v. Com- ministerial duty of payment of a warrant missioners of Land Office, 43 N. E. 418, 149 drawn by lawful and proper authority upon N. Y. 26).

a fund in his custody, legally applicable to Ky. St. $ 3855, requires a personal repre- its payment, and requiring the exercise of no sentative of a decedent's estate to return an official discretion on his part. In view of inventory within a certain time after qualify- Rev. St. 1899, C. 49, prescribing the pleading ing. Section 3857 provides that any person- and procedure in ma ndamus, but not enlargal representative failing to return an in- ing the scope or amplifying the application ventory within six months after qualifying of the remedy, such a proceeding cannot be shall be fined by the county court, and be converted into an equitable suit by the rerequired to make such inventory upon a day spondent, a county treasurer, answering that fixed by it, and upon failure to do so, shall he holds the fund subject to the conflicting be fined for each subsequent delinquency, and claims of relator and others and an order of section 3858 requires every personal repre-court requiring such other claimants to apsentative to have his accounts settled, and pear and answer. State ex rel. Hixon v. Nerall settlements and vouchers returned to the ry, 79 S. W. 993, 994, 995, 105 Mo. App. 458. county court within a certain time, and as "The writ of 'mandamus' being justly often thereafter as the court requires. Civ. regarded as one of the highest writs known Code Prac. $ 477, defines the “writ of manda- to our system of jurisprudence, it issues only mus” as an order of a court commanding an where there is a clear and specific legal right executive or ministerial officer to perform or to be enforced, or a duty which ought to be omit an act, the performance or omission and can be performed, and where there is no of which is enjoined by law, which shall be other specific and adequate legal remedy. granted on the motion of the party aggrieved Since the object of a mandamus is not to or of the commonwealth when the public supersede legal remedies, but rather to supinterest is affected. Held, that the duty of a ply the want of them, two prerequisites must county judge to require executors and admin. exist to warrant a court in granting this istrators to file inventories and make settle extraordinary remedy: First, it must be ments was mandatory, and not a matter of shown that the relator has a clear, legal right judicial discretion which could not be enforced to the performance of a particular actor by mandamus. Commonwealth v. Peter, 124 duty at the hands of the respondent; and, S. W. 896, 897, 136 Ky. 689,

second, it must appear that the law affords “The 'writ of mandamus' is in form a no other adequate or specific remedy to secommand in the name of the state, directed 'cure the enforcement of the right and the

performance of the duty which it is sought (som v. Mercer, 68 Tex. 492, 5 S. W. 62, 2 to coerce. The test to be applied, therefore, Am. St. Rep. 505). in determining upon the right to relief by

While election inspectors cannot be commandamus, is to inquire whether the party pelled by mandamus to make their return in aggrieved has a clear, legal right, and wheth- any particular manner, they may be compeler he has any other adequate remedy, since led to make a true return of the result acthe writ belongs only to those who have legal cording to their count, if the return made rights to enforce, who find themselves with

was incorrect, irrespective of the provisions out an appropriate legal remedy.” State ex of the election law; “mandamus” being the rel. Gleeson v. Jumbo Extension Mining Co., proper remedy to compel a public official to 94 Pac. 74, 76, 30 Nev. 192, 133 Am. St. Rep. perform his official duty, where he fails to 715, 16 Ann. Cas. 896 (quoting and adopting do so. People ex rel. Henness v. Douglass, definition in High, Extraordinary Legal | 126 N. Y. Supp. 908, 909, 142 App. Div. 224. Remedies, p. 9).

It is a fundamental principle that “man- MANDATARIES damus” lies to compel the performance of a purely ministerial duty, involving no discre- A "mandatary” whose engagement is tionary right and not requiring the exercise merely gratuitous is bound only to ordinary of judgment. It does not lie where perform- negligence, and liable only for gross neglect ance of a trust is sought which is discretion- or breach of good faith. Marshall v. Nashary, or involves the exercise of jugdment. It ville Ry. & Light Co., 101 S: W. 419, 420, 118 is also elementary that the writ cannot usurp Tenn. 254, 9 L. R. A. (N. S.) 1246, 12 Ann. the functions of a writ of error, or take the cas. 675. place of an appeal, nor will it lie against a court, unless it be clearly shown that such

MANDATE court has refused to perform some manifest duty. Under a statute providing that the

See Special Mandate. writ of mandamus may be issued to an inferior tribunal to compel the performance of

The word "mandate,” in Civ. Code, art. an act which the law specially enjoins as 2985, relating to personal mandate, whereby a duty resulting from an office, mandamus one person appoints another his special agent, out of the district court would not lie to com

or whereby one person gives power to anpel the county court to enter a judgment in other to transact for him and in his name a divorce proceeding different from the judg- one or several affairs, does not refer to the ment which had been rendered; this being an business of agency carried on under a charattempt to review, annul, and modify the ter adopted under the act of 1888. State ex judgment, and being in this regard an at- rel. Le Blanc & Railey v. Michel, 36 South. tempt to usurp the functions of an appeal 869, 870, 113 La. 4. from or writ of error to such judgment, and MANDATE (In Practice) also an attempt to control the «liscretion and

Execution judgment of the county court. Lindsey v. Carlton, 96 Pac. 997, 999, 44 Colo. 42.

An execution on a judgment is a "man

date," as provided by Code Civ. Proc. $ 3343, ""Mandamus' lies to compel an inferior and the only mandate by which a judgment court to hear and determine a cause or mat- creditor is entitled to enforce it. Belfer v. ter properly triable before it, which the lower Ludlow, 126 N. Y. Supp. 130, 132, 69 Misc. court fails or refuses to try on the ground Rep. 486. that it has no jurisdiction, or that the judge is incompetent, or for other reasons." Hence

Mandamus mandamus is the proper remedy to compel a

The "writ of mandate," as defined by county court to take jurisdiction of and Rev. St. 1898, 88 3640, 3641, denominating the hear a proceeding by the state revenue agent writ of mandamus a writ of mandate, and for the reassessment or back assessment of authorizing its issuance to any inferior tritaxes on the property of a street railway. bunal to compel the performance of an act State v. Taylor, 104 S. W. 242, 246, 119 Tenn. specially enjoined by law, is designed to 229.

compel action where the law enjoins it, and

the tribunal refuses to act in accordance The process of "mandamus" will not is- therewith. Hoffman v. Lewis, 87 Pac. 167, sue against a public officer, unless to compel 170, 31 Utah, 179. the performance of an act clearly defined and

By Code Civ. Proc. $ 1085, the "writ enjoined by law, and which is therefore min of mandate” is issued by any court, except isterial in its nature and neither involves the a justice's or police court, to any inferior exercise of discretion, nor leaves any alter- tribunal, corporation, board, or person, to pative. Caven v. Coleman (Tex.) 96 S. W. compel the performance of an act which the 774, 776 (citing Glasscock v. Commissioner of law specially enjoins, as a duty resulting General Land Office, 3 Tex. 51; Arberry v. from an office, trust or station. Howev. Beavers, 6 Tex. 457, 55 Am. Dec. 791; San- 'Southrey, 78 Pac. 259, 144 Cal. 767.

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