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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, § 4191, 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 manda

mus on the theory that they owe those to perform the duties of his office, and the writ will lie though the duties of the officer duties to the state and are subject to its are of a quasi judicial character, and con

visitorial powers. Gas, water, and telephone sist of a discretion which cannot be review. companies can also be compelled by mandaed by the courts, where the object sought is Rouse v. Thompson, 81 N. E. 1109, 1120, 228

mus to discharge their duties to the public. to compel an exercise of the discretion. State ex rel. Howe v. Kendall, 87 Pac. 821, IN. 522 (citing Mechem, Public Officers & 822, 44 Wash. 542.

Agents, $ 926; People ex rel. Hempstead v.

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, 129 111. 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 11l. 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 right to the thing demanded, and that it be ly lie to compel performance of a power, the

Though “mandamus" will not generalthe 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 ofice 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 of. rel. 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 y. 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, si 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. 451). 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 mandamus, but not enlarg. al 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, detines 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 showu that the relator has a clear, legal right judicial discretion which could not be enforced to the performance of a particular act or 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 se command 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 coinmandamus, 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 es 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, anıt 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.

869, 870, 113 La. 4. tempt to usurp the functions of an appeal from or writ of error to such judgment, and MANDATE (In Practice) also an attempt to control the viscretion 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

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.

229.

MANDATE

Under Code Civ. Proc. 3313, subd. 2, , ing disobedience guilty of criminal contempt. defining the word “mandate” to include a People ex rel. Drake v. Andrews, 90 N. E. writ issued out of a court, commanding an 347, 348, 197 N. Y. 53, 18 Ann. Cas. 317. 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

Directory statute distinguished from to whom an award has been made in proceed

mandatory statute, see Directory Statings to acquire land, to require the comptrol

ute. ler to pay the award, and to enforce the man- A mandatory provision of a statute is date as other mandates are enforced, the one the omission to perform which renders court may by mandamus compel the comp- proceedings void; while a directory provitroller to pay an award, and the fact that sion is one the observance of which is not costs are more than they would be if the necessary to the validity of proceedings. applicant for mandamus had been content Bond v. City of Baltimore, 84 Atl. 258, 260. with an order is a matter which may not be 118 Md. 159. considered, when he was denied the award,

A statute providing that appointment of to which he was legally entitled. Macholdt a special administrator may be made at any v. Prendergast, 128 N. Y. Supp. 1069, 1070, time, and must be made by entry upon the 144 App. Div. 252.

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 shall 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. Mconymous with the word “mandamus? in the Neil v. Morgan, 108 Pac. 69, 71, 157 Cal. 373. Organic Act of the territory conferring on

The term “mandatory” is applicable althe 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 to prevent a sacrifice of his property, and section 4884, providing that the writ of man- by a disregard of which his rights might be, damus may be issued by the Supreme Court and generally would be, injuriously affected. or the district court, or any justice or judge It does not apply to statutory requirements thereof, during term or at chambers, etc., intended for the guide of officers in the conand the probate courts of the territory are duct of business devolved on them and denot authorized to hear and determine origi- signed to secure order, system and dispatch nal proceedings in mandamus. Starkweath- in proceedings, and by a disregard of which er v. Kemp, 88 Pac. 1045, 1046, 18 Okl. 28. the rights of the parties cannot be injuriousRemittitur

ly affected. French v. Edwards, 13 Wall. 506, The word “remittitur," used in Supreme (80 U. S.] 511, 20 L. Ed. 702. Court rule 34 providing that, when a judg- MANDATORY INJUNCTION ment of a District Court of Appeal becomes final therein, the remittitur shall not be is- ventive, according as they command the de

Injunctions are “mandatory" or presued until after the lapse of 30 days there- fendant to do or refrain from doing a parafter, unless otherwise ordered, designates

ticular thing. The issuance of a "mandatothe judgment of the appellate tribunal which is authenticated to the court from which the ry injunction” is exercised with extreme appeal is taken, and corresponds to "man- of law are unable to afford adequate redress,

caution, and is confined to cases where courts date," used in the practice of the United

or where the injury cannot be compensated States Supreme Court. Noel v. Smith, 83

in damages. In determining whether to Pac. 167, 169, 2 Cal. App. 158.

grant relief by way of “mandatory injuncSubpæna

tion,” courts of equity will take into considCode Civ. Proc. $ 8, authorizes a court to eration the relative convenience or inconpunish for criminal contempt one guilty of venience which would result to the parties willful disobedience of its lawful mandate. from granting or withholding relief, and will Section 3343 provides that the word "man- be governed accordingly. Mason v. Byrley date" includes a writ, process, etc., made pur- (Ky.) 84 S. W. 767, 770 (citing High, Ing. $ suant to law by a judicial officer, and com- 2). manding the person named therein to do the A "mandatory injunction” is one which act therein specified, and Code Cr. Proc. & compels affirmative action by defendant. It 619, provides that disobedience of a subpæna an injunction compels one affirmatively to may be punished as for a criminal contempt. surrender a possession which under the facts Held, that a subpæna 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- 1302, 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 mandatory injunction. Ray v. Carlisle, 54 S. E. 119, 120, 125 Ga. 316. Rudolph Wurlitzer Co. v. Jackson, 67 S. E. 879, 880, 134 Ga. 333.

MANIFEST ERROR

A manifest clerical error in a liquidaA "mandatory injunction” compels the

tion made within one year after original enaffirmative performance, while a preventive

try cannot be corrected more than one year injunction restrains the commission of an act. Carver v. San Pedro, etc., R. Co., 151 after such entry, because not within the pro

vision in Customs Administrative Act June Fed. 331, 338.

10, 1890, c. 407, $ 24, authorizing the Secre

tary of the Treasury to correct such errors MANGANESE

“within one year from the date of such entry," See Borate of Manganese,

as the term "entry," as there used, refers to

the document filed by the importer on entry. MANGANESE ALLOY

Inasmuch as Customs Administrative Act See Iron and Manganese Alloy.

June 10, 1890, c. 407, § 24, relating to the

correction of "manifest clerical errors," is MANGE

the latest deliverance on that subject and re

lates most specifically thereto, it controls "Mange" is a cattle disease, otherwise over Act June 22, 1874, c. 391, $ 21, relative known as splenic or Spanish fever. State v. to the "settlement of duties," and Act Marib Missouri Pac. R. Co., 81 Pac. 212, 213, 71 3, 1875, C. 136, § 1, relative to the "correction Kan. 613.

of errors in liquidation.” Where, in liquida

tion, the clerk miscalculated the number of MANGLE

square yards in an imported fabric, this con

stituted a "manifest clerical error," within As machine, see Machine.

the meaning of Customs Administrative Act A "mangle" is a large roller, used in a June 10, 1890, c. 407, $ 24. United States v. laundry, through which the clothes are run. F. B. Vandegrift & Co., 175 Fed. 772, 773. Ross-Paris Co. v. Brown, 90 S. W. 568, 121 99 C. C. A. 598. Ky. 821.

Section 16 of the county law (Consol.

Laws, C. 11), providing that the board of MANHATTAN COCKTAIL

supervisors could correct any “manifest clerSee Cocktail.

ical or other error" in any assessment, and As intoxicating liquor, see Intoxicating cause to be refunded taxes illegally or imLiquors.

properly assessed, refers to such errors as

are manifest from an inspection of the asMANHOLES

sessment roll itself without argument or evi

dence. In re Trustees of Village of Delhi, A "manhole" is a round opening into a 124 N. Y. Supp. 487, 489, 139 App. Div. 412. sewer large enough to permit a man to enter

MANIFESTLY for the purpose of cleaning or repairing. Comstock v. City of Eagle Grove, 111 N. W.

The term “manifestly" is a 51, 52, 133 Iowa, 589.

word wbich may be assumed to be under

stood in the common meaning by an ordinary MANIFEST

jury without definition. Commonwealth v.

Buckley, 86 N. E. 910, 911, 200 Mass. 316, The word "evident” means “clear to the 22 L. R. A. (N. S.) 225, 128 Am. St. Rep. 425. vision, especially clear to the understanding, and satisfactory to the judgment.” Its syn- MANIFESTLY DANGEROUS onyms are: “Manifest; plain; clear; obvi- That one has committed homicide and ous; visible; apparent; conclusive; indu- been acquitted on the ground of insanity bitable; palpable; notorious."

State

v.justifies the conclusion that he is “manifestly Kauffman, 108 N. W. 246, 20 S. D. 620 (quot dangerous,” within Ballinger's Ann. Codes ing with approval from Webster's Dict.). & St. 8 6959 (Pierce's Code, $ 2208), providing

for the commitment of persons who are deemMANIFEST DANGER

ed manifestly dangerous after having been Even if the claims of the plaintiff were acquitted of crime on the ground of insanity. of such a character that the property in con- State ex rel. Thompson v. Snell, 89 Pac. 931, troversy was either legally or equitably 933, 46 Wash. 327, 9 L. R. A. (N. S.) 1191. charged with their payment, the fact that the building is insured, and in the event of MANIFESTLY INTEND its destruction by fire the land could not be Section 70 of the Georgia Penal Code of sold for a sum sufficient to pay the amount '1895 justifies the killing, in defense of one's

common

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