judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station. Eberle v. King, 93 Pac. 748, 753, 20 Okl. 49 (citing 26 Cyc. pp. 163, 164). According to Rev. St. 1899, § 4194, respondent to perform the act required. If either the right or the duty be doubtful, the writ will not be issued. A duty arising out of statute must not be merely permissive or discretionary, but the statute must require the act to be done, or it will not be enforced by mandamus. State v. Jackson, 81 N. E. 62, 63, 168 Ind. 384. A "writ of mandamus" is a command issuing from a court of law of competent jurisdiction, in the name of the state, directing some inferior court, officer, corporation, or person to some particular thing therein specified which pertains to his office or duty. It will not lie against one who does not oc "'mandamus' is a writ issued in the name of the state to an inferior tribunal, a corporation, board, or persons, demanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station," and, according to section 4197, "the writ must not be issued in a case when there is a plain and adequate rem-cupy an official or quasi official position, edy in the ordinary course of the law." Wyoming Coal Mining Co. v. State ex rel. Kennedy, 87 Pac. 337, 338, 15 Wyo. 97, 123 Am. St. Rep. 1014. "Mandamus" is a legal remedy, and lies for the enforcement of legal rights only, and under Burns' Ann. St. 1908, § 1225, providing that writs of mandate may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station, to justify the issuance of the writ it is essential that the relator have a clear legal right to the thing demanded, and that it be the imperative duty of the respondent to perform the required act. State ex rel. Hatfield v. Cummins, 85 N. E. 359, 360, 171 Ind. 112, 36 L. R. A. (N. S.) 945. In Ohio "mandamus" is not used for the redress of private wrongs, but only in matters relating to the public. The writ is the proper remedy to restore a party to the possession of an office from which he has been illegally removed. State ex rel. Moyer v. Baldwin, 83 N. E. 907, 908, 77 Ohio St. 532, 19 L. R. A. (N. S.) 49, 12 Ann. Cas. 10. Burns' Ann. St. 1901, § 1182, provides that "writs of mandamus may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust or station." This statute is substantially declaratory of the common-law doctrine. "Mandamus" is in no sense an equitable proceeding, but is a common-law remedy to compel performance of a legal duty, and the relator must have a clear legal right to the thing demanded, and it must be the imperative duty of the but it will lie not only against public officers, but against private officers in certain cases, and against public and private corporations. It will lie to enforce a public duty, and the officials of a railroad company can be compelled to perform certain duties by mandamus on the theory that they owe those duties to the state and are subject to its visitorial powers. Gas, water, and telephone companies can also be compelled by mandaRouse v. Thompson, 81 N. E. 1109, 1120, 228 mus to discharge their duties to the public. 1. 522 (citing Mechem, Public Officers & Agents, § 926; People ex rel. Hempstead v. Chicago & A. R. Co., 55 Ill. 95, 8 Am. Rep. 631; Chicago & A. R. Co. v. Suffern, 21 N. E. 824, 129 Ill. 274: People ex rel. Cantrell v. St. Louis, A. & T. H. R. Co., 52 N. E. 292, 176 Ill. 512, 35 L. R. A. 656; Litchfield & M. Ry. Co. v. People, 78 N. E. 589, 222 Ill. 242; People v. Chicago, I. & L. Ry. Co., 79 N. E. 144, 223 Ill. 581, 7 Ann. Cas. 1; 2 Spelling, Injunctions & Other Extraordinary Remedies [2d Ed.] § 1592). Though "mandamus" will not generally lie to compel performance of a power, the exercise of which is in the discretion of the officer against whom the writ is sought. the remedy is available if the action of the officer is capricious, arbitrary, unreasonable, or based on false information. People ex rel. Empire City Trotting Club v. State Racing Commission, 82 N. E. 723, 190 N. Y. 31. "Mandamus" cannot be rightfully in. voked to settle a doubtful claim to an office, or to have the title to an office adjudicated upon as between adverse claimants, but "information in the nature of a quo warranto" affords the proper remedy. Where the relator holds a prima facie and uncontested title to the office, or his title has been adjudicated upon and finally established by a competent tribunal, a writ of "mandamus" may be issued to put him in possession of the office as well as of the books, papers, and other property pertaining to it. Hoy v. State ex rel. Buchanan, 81 N. E. 509, 512, 168 Ind. 506, 11 Ann. Cas. 944 (citing Mannix v. State ex rel. Mitchell, 17 N. E. 565, 115 Ind. 245). "Mandamus" does not lie to compel the payment of an unliquidated unadjudicated ficer, requiring them to do some particular thing therein specified, and which the court has previously determined that it is the duty of such tribunals or other person to perform. claim that is disputed. Howell v. State ex | to some tribunal, corporation, or public ofrel. Edwards, 45 South. 453, 454, 54 Fla. 199 (citing Whitesides v. Stuart, 20 S. W. 245, 91 Tenn. 710; Hicks v. Board of Auditors of Wayne County, 57 N. W. 188, 97 Mich. 611; State Board of Education v. West Point, 50 Miss. 638). "Mandamus," as defined by Civ. Code Prac. § 477, and the courts, is a writ commanding the performance of some duty, in the performance of which the applicant for the writ is interested, or by the nonperformance of which he is aggrieved or injured. Louisville Home Telephone Co. v. City of Louisville, 113 S. W. 855, 857, 130 Ky. 611. Mandamus may not be invoked to review a judicial or quasi judicial decision. The primary object of the writ of mandamus is to compel action. It neither creates nor confers power to act, but only commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. While it may require the performance of a purely ministerial duty in a particular manner, its command is never given to compel the discharge of a duty involving the exercise of judgment or discretion in any specified way, for that would substitute the judgment or discretion of the court issuing the writ for that of the person or persons against whom the writ was issued. People ex rel. McCabe v. Matthies, 87 N. Y. S. 196, 198, 92 App. Div. 16 (citing People ex rel. Harris v. Commissioners of Land Office, 43 N. E. 418, 149 N. Y. 26). Ky. St. § 3855, requires a personal representative of a decedent's estate to return an inventory within a certain time after qualifying. Section 3857 provides that any personal representative failing to return an inventory within six months after qualifying shall be fined by the county court, and be required to make such inventory upon a day fixed by it, and upon failure to do so, shall be fined for each subsequent delinquency, and section 3858 requires every personal representative to have his accounts settled, and all settlements and vouchers returned to the county court within a certain time, and as often thereafter as the court requires. Civ. Code Prac. § 477, defines the "writ of mandamus" as an order of a court commanding an executive or ministerial officer to perform or omit an act, the performance or omission of which is enjoined by law, which shall be granted on the motion of the party aggrieved or of the commonwealth when the public interest is affected. Held, that the duty of a county judge to require executors and administrators to file inventories and make settlements was mandatory, and not a matter of judicial discretion which could not be enforced by mandamus. Commonwealth v. Peter, 124 S. W. 896, 897, 136 Ky. 689. "The 'writ of mandamus' is in form a command in the name of the state, directed * * * 串 It does not lie to correct the errors of inferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to refrain them from exercising power not delegated to them; but it is emphatically a writ requiring the tribunal or person to whom it is directed, to do some particular act appertaining to their public duty, and which the prosecutor has a legal right to have done. The 'writ of mandamus' is the counterpart of the writ of prohibition, and is so designated in some states by statute. 'Mandamus' is a legal remedy to compel action in accordance with legal duty, while prohibition' is a legal remedy to restrain action in excess of legal authority." State ex rel. Pelton v. Ross, 81 Pac. 865, 867, 39 Wash. 399 (quoting and adopting the definition in Dunklin County v. Dunklin County District Court, 23 Mo. 454). "Mandamus' is a command issued from a court of law of competent jurisdiction in name of the state directed to some inferior court, officer, corporation, or person requiring them to do some particular thing therein specified, which appertains to their office or duty." It lies in cases involving merely the performance by a county official of his plain, ministerial duty of payment of a warrant drawn by lawful and proper authority upon a fund in his custody, legally applicable to its payment, and requiring the exercise of no official discretion on his part. In view of Rev. St. 1899, c. 49, prescribing the pleading and procedure in mandamus, but not enlarging the scope or amplifying the application of the remedy, such a proceeding cannot be converted into an equitable suit by the respondent, a county treasurer, answering that he holds the fund subject to the conflicting claims of relator and others and an order of court requiring such other claimants to appear and answer. State ex rel. Hixon v. Nerry, 79 S. W. 993, 994, 995, 105 Mo. App. 458. "The writ of 'mandamus' being justly regarded as one of the highest writs known to our system of jurisprudence, it issues only where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. Since the object of a mandamus is not to supersede legal remedies, but rather to supply the want of them, two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must be shown that the relator has a clear, legal right to the performance of a particular act or duty at the hands of the respondent; and, second, it must appear that the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it is sought (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 mandamus, is to inquire whether the party aggrieved has a clear, legal right, and whether he has any other adequate remedy, since the writ belongs only to those who have legal rights to enforce, who find themselves without an appropriate legal remedy." State ex rel. Gleeson v. Jumbo Extension Mining Co., 94 Pac. 74, 76, 30 Nev. 192, 133 Am. St. Rep. 715, 16 Ann. Cas. 896 (quoting and adopting definition in High, Extraordinary Legal Remedies, p. 9). While election inspectors cannot be compelled by mandamus to make their return in any particular manner, they may be compelled to make a true return of the result according to their count, if the return made was incorrect, irrespective of the provisions of the election law; "mandamus" being the proper remedy to compel a public official to perform his official duty, where he fails to do so. People ex rel. Henness v. Douglass, 126 N. Y. Supp. 908, 909, 142 App. Div. 224. A "mandatary" whose engagement is negligence, and liable only for gross neglect or breach of good faith. Marshall v. Nashville Ry. & Light Co., 101 S: W. 419, 420, 118 Tenn. 254, 9 L. R. A. (N. S.) 1246, 12 Ann. Cas. 675. It is a fundamental principle that "man- MANDATARIES damus" lies to compel the performance of a purely ministerial duty, involving no discretionary right and not requiring the exercise merely gratuitous is bound only to ordinary of judgment. It does not lie where performance of a trust is sought which is discretionary, or involves the exercise of jugdment. It is also elementary that the writ cannot usurp the functions of a writ of error, or take the place of an appeal, nor will it lie against a court, unless it be clearly shown that such court has refused to perform some manifest duty. Under a statute providing that the writ of mandamus may be issued to an inferior tribunal to compel the performance of an act which the law specially enjoins as a duty resulting from an office, mandamus out of the district court would not lie to com MANDATE See Special Mandate. The word "mandate," in Civ. Code, art. 2985, relating to personal mandate, whereby one person appoints another his special agent, or whereby one person gives power to another to transact for him and in his name pel the county court to enter a judgment in a divorce proceeding different from the judg-one or several affairs, does not refer to the business of agency carried on under a charment which had been rendered; this being an State ex attempt to review, annul, and modify the ter adopted under the act of 1888. 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 also an attempt to control the discretion and judgment of the county court. Lindsey v. Carlton, 96 Pac. 997, 999, 44 Colo. 42. "'Mandamus' lies to compel an inferior court to hear and determine a cause or matter properly triable before it, which the lower court fails or refuses to try on the ground that it has no jurisdiction, or that the judge is incompetent, or for other reasons." Hence mandamus is the proper remedy to compel a county court to take jurisdiction of and hear a proceeding by the state revenue agent for the reassessment or back assessment of taxes on the property of a street railway. State v. Taylor, 104 S. W. 242, 246, 119 Tenn. 229. The process of "mandamus" will not issue against a public officer, unless to compel the performance of an act clearly defined and enjoined by law, and which is therefore ministerial in its nature and neither involves the exercise of discretion, nor leaves any alternative. Caven v. Coleman (Tex.) 96 S. W. 774, 776 (citing Glasscock v. Commissioner of General Land Office, 3 Tex. 51; Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791; San MANDATE (In Practice) Execution An execution on a judgment is a "mandate," as provided by Code Civ. Proc. § 3343, and the only mandate by which a judgment creditor is entitled to enforce it. Belfer v. Ludlow, 126 N. Y. Supp. 130, 132, 69 Misc. Rep. 486. Mandamus The "writ of mandate," as defined by Rev. St. 1898, §§ 3640, 3641, denominating the writ of mandamus a writ of mandate, and authorizing its issuance to any inferior tribunal to compel the performance of an act specially enjoined by law, is designed to compel action where the law enjoins it, and the tribunal refuses to act in accordance therewith. Hoffman v. Lewis, 87 Pac. 167, 170, 31 Utah, 179. By Code Civ. Proc. § 1085, the "writ of mandate" is issued by any court, except a justice's or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station. Howe v. Southrey, 78 Pac. 259, 144 Cal. 767. MANDATE ing disobedience guilty of criminal contempt. People ex rel. Drake v. Andrews, 90 N. E. 347, 348, 197 N. Y. 53, 18 Ann. Cas. 317. statute distinguished from Directory mandatory statute, see Directory Stat ute. Under Code Civ. Proc. § 3343, subd. 2, defining the word "mandate" to include a writ issued out of a court, commanding an officer to do or to refrain from doing an act therein specified, and Greater New York MANDATORY Charter (Laws 1901, c. 466) § 1001, authorizing the court, on application of any person to whom an award has been made in proceedings to acquire land, to require the comptroller to pay the award, and to enforce the mandate as other mandates are enforced, the court may by mandamus compel the comptroller to pay an award, and the fact that costs are more than they would be if the applicant for mandamus had been content with an order is a matter which may not be considered, when he was denied the award, to which he was legally entitled. Macholdt v. Prendergast, 128 N. Y. Supp. 1069, 1070, 144 App. Div. 252. A mandatory provision of a statute is one the omission to perform which renders proceedings void; while a directory provision is one the observance of which is not necessary to the validity of proceedings. Bond v. City of Baltimore, 84 Atl. 258, 260. 118 Md. 159. A statute providing that appointment of a special administrator may be made at any time, and must be made by entry upon the minutes of the court specifying the powers The word "mandate," in Wilson's Rev. to be exercised by him, was not "mandatory" & Ann. St. 1903, § 1882, providing that in all as to entry of a minute order, and the apcases in the probate court the probate judge pointment was complete when the order was Mcshall have power to allow injunctions, "man- signed, and failure of the clerk to enter it dates," writs of prohibition, etc., is not syn- on the minutes would not invalidate it. onymous with the word "mandamus" in the Neil v. Morgan, 108 Pac. 69, 71, 157 Cal. 373. The term "mandatory" is applicable alOrganic Act of the territory conferring on the Supreme and district courts power to most entirely to statutory requirements ingrant writs of mandamus and habeas cor-tended for the protection of the citizen and pus in all cases authorized by law, and in section 4884, providing that the writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term or at chambers, etc., and the probate courts of the territory are not authorized to hear and determine original proceedings in mandamus. Starkweather v. Kemp, 88 Pac. 1045, 1046, 18 Okl. 28. Remittitur to prevent a sacrifice of his property, and The word "remittitur," used in Supreme Court rule 34 providing that, when a judgment of a District Court of Appeal becomes final therein, the remittitur shall not be issued until after the lapse of 30 days thereafter, unless otherwise ordered, designates the judgment of the appellate tribunal which is authenticated to the court from which they appeal is taken, and corresponds to "mandate," used in the practice of the United States Supreme Court. Noel v. Smith, 83 Pac. 167, 169, 2 Cal. App. 158. Subpœna Injunctions are "mandatory" or preventive, according as they command the defendant to do or refrain from doing a particular thing. The issuance of a "mandatocaution, and is confined to cases where courts injunction" is exercised with extreme of law are unable to afford adequate redress, in damages. In determining whether to or where the injury cannot be compensated grant relief by way of "mandatory injunc tion," courts of equity will take into consideration the relative convenience or inconvenience which would result to the parties from granting or withholding relief, and will be governed accordingly. Mason v. Byrley (Ky.) 84 S. W. 767, 770 (citing High, Inj. § 2). Code Civ. Proc. § 8, authorizes a court to punish for criminal contempt one guilty of willful disobedience of its lawful mandate. Section 3343 provides that the word "mandate" includes a writ, process, etc., made pursuant to law by a judicial officer, and comA "mandatory injunction" is one which manding the person named therein to do the act therein specified, and Code Cr. Proc. § compels affirmative action by defendant. If 619, provides that disobedience of a subpoena an injunction compels one affirmatively to may be punished as for a criminal contempt. surrender a possession which under the facts Held, that a subpœna issued by the district alleged by him he is entitled to hold, it is a attorney requiring a witness to appear be- "mandatory." Clute v. Superior Court of fore a grand jury was a "mandate," within City and County of San Francisco, 99 Pac. section 8, so as to make one willfully advis-302, 363, 155 Cal. 15, 132 Am. St. Rep. 54. It is error, on an interlocutory hearing | claimed by the plaintiff, does not constitute of an equitable petition seeking specific per- such a "manifest danger of loss or destrucformance and injunction, to order the deliv- tion" of the property as would warrant the ery by defendant of the personal property appointment of a receiver to take charge of in controversy to the petitioner; such order the same and impound the rents therefrom. being in legal effect a mandatory injunction. Ray v. Carlisle, 54 S. E. 119, 120, 125 Ga. 316. Rudolph Wurlitzer Co. v. Jackson, 67 S. E. MANIFEST ERROR 879, 880, 134 Ga. 333. A "mandatory injunction" compels the affirmative performance, while a preventive injunction restrains the commission of an act. Carver v. San Pedro, etc., R. Co., 151 Fed. 334, 338. MANGANESE See Borate of Manganese. MANGANESE ALLOY See Iron and Manganese Alloy. MANGE "Mange" is a cattle disease, otherwise known as splenic or Spanish fever. State v. Missouri Pac. R. Co., 81 Pac. 212, 213, 71 Kan. 613. MANGLE As machine, see Machine. A "mangle" is a large roller, used in a laundry, through which the clothes are run. Ross-Paris Co. v. Brown, 90 S. W. 568, 121 Ky. 821. MANHATTAN COCKTAIL See Cocktail. A manifest clerical error in a liquidation made within one year after original entry cannot be corrected more than one year after such entry, because not within the pro vision in Customs Administrative Act June 10, 1890, c. 407, § 24, authorizing the Secretary of the Treasury to correct such errors "within one year from the date of such entry," as the term "entry," as there used, refers to the document filed by the importer on entry. Inasmuch as Customs Administrative Act June 10, 1890, c. 407, § 24, relating to the correction of "manifest clerical errors," is the latest deliverance on that subject and relates most specifically thereto, it controls over Act June 22, 1874, c. 391, § 21, relative to the "settlement of duties," and Act Marcb 3, 1875, c. 136, § 1, relative to the "correction of errors in liquidation." Where, in liquidation, the clerk miscalculated the number of square yards in an imported fabric, this constituted a "manifest clerical error," within the meaning of Customs Administrative Act June 10, 1890, c. 407, § 24. United States v. F. B. Vandegrift & Co., 175 Fed. 772, 773. 99 C. C. A. 598. Section 16 of the county law (Consol. Laws, c. 11), providing that the board of supervisors could correct any "manifest clerical or other error" in any assessment, and As intoxicating liquor, see Intoxicating cause to be refunded taxes illegally or imLiquors. MANHOLES A "manhole" is a round opening into a sewer large enough to permit a man to enter for the purpose of cleaning or repairing. Comstock v. City of Eagle Grove, 111 N. W. 51, 52, 133 Iowa, 589. MANIFEST The word "evident" means "clear to the vision, especially clear to the understanding, and satisfactory to the judgment." Its synonyms are: "Manifest; plain; clear; obvious; visible; apparent: conclusive; indubitable; palpable; notorious." State V. Kauffman, 108 N. W. 246, 20 S. D. 620 (quoting with approval from Webster's Dict.). MANIFEST DANGER Even if the claims of the plaintiff were of such a character that the property in controversy was either legally or equitably charged with their payment, the fact that the building is insured, and in the event of its destruction by fire the land could not be sold for a sum sufficient to pay the amount properly assessed, refers to such errors as are manifest from an inspection of the assessment roll itself without argument or evidence. In re Trustees of Village of Delhi, 124 N. Y. Supp. 487, 489, 139 App. Div. 412. MANIFESTLY The term "manifestly" is a common word which may be assumed to be understood in the common meaning by an ordinary jury without definition. Commonwealth v. Buckley, 86 N. E. 910, 911, 200 Mass. 346, 22 L. R. A. (N. S.) 225, 128 Am. St. Rep. 425. MANIFESTLY DANGEROUS That one has committed homicide and been acquitted on the ground of insanity justifies the conclusion that he is "manifestly dangerous," within Ballinger's Ann. Codes & St. § 6959 (Pierce's Code, § 2208), providing for the commitment of persons who are deemed manifestly dangerous after having been acquitted of crime on the ground of insanity. State ex rel. Thompson v. Snell, 89 Pac. 931, 933, 46 Wash. 327, 9 L. R. A. (N. S.) 1191. MANIFESTLY INTEND Section 70 of the Georgia Penal Code of 1895 justifies the killing, in defense of one's |