Mandamus

The name of a writ employed by courts of high jurisdiction, under common-law systems, for compelling subordinate courts or officers to perform their duties. The name is derived from the emphatic w Brd in the opening clause of the writ, in its old Latin form, mandamus, — we command you. So many changes have been introduced by statute in the various jurisdictions, relative to the employment of this remedy, that to give any single sketch of it which shall be everywhere accurate is impracticable. According to the king's bench practice prevailing during the times when the writ was introduced in this country, the writ of mandamus was defihed to be a rected to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified appertaining to their office and duty, and which the court of king's bench had previously determined, or, by issuing the writ, adjudged, to be consonant to right and justice.

Exp. Crane, 5 Pet. 190.

It issued to the judges of any inferior court, commanding them to do justice according to the powers of their office, wherever the same is delayed. But though called, from early views, a prerogative writ, — that is, one issuing only in the discretion of the sovereign, — it long ago came to be considered a writ of right, and might issue as freely as ordinary process, upon proper application to the court, in the various cases where it was the appropriate relief. These have been, in general, understood to be cases in which complainant can show that (1) he has a clear legal right to demand the performance of some act by defendant, which (2) is in the natm-e of a public or official duty, and which (3) defendant refuses to perform, and for which (4) complainant has no other complete and sufl Bicient remedy.

— Restrictions upc(n the use of the writ have been such as the following: That the applicant's right to have the act in question done must be clear; if it is questionable, the court will leave it to be adjudged in the regular course of some action, rather than grant a mandamus: that the duty must be one which, in some aspects at least, is owed to the public; the writ does not lie to enforce merely private debts or obligations: that there must be a refusal of an act within defendant's power to do;

— for, if it has not been properly demanded, or has not been refused, or the omission is because performance is impossible, the extraordinary remedy is not appropriate: that, if there is another direct and complete remedy, as by action for damages, the complainant will not be allowed a mandamus: and, lastly, with reference particularly to judicial action, or official duties involving judgment or discretion, that the writ only lies to compel the tribunal or officer to direct it or them in what particular way they shall act. In modern English practice, having regard to statutory changes introduced by the common-law procedure and the judicature acts, the writ of mandamus appears used in two modes or forms: 1. The prerogative writ, or substantially the former writ of mandamus, as above described. In this use of the writ, it still belongs to the king's or queen's bench, and is used principally for public purposes, and to enforce the performance of public rights or duties; it pay, however, operate in affording specific relief, and in enforcing some private rights when they are withheld by a public officer. It is generally refused when the party applying for it has any other specific remedy. 2. There is a species of mandamus incidental to an action. By provisions of the common-law procedure act, a plaintiff in any action except replevin and ejectment might indorse upon the writ of summons a notice that he intended to claim a writ of mandamus commanding the defendant to perform some duty in which the plaintiff is interested. It was held that this did not enable a plaintiff to enforce by mandamus the specific performance of a contract; but "that the act contemplated a public duty, in which the plaintiff, among others, was interested, and not a private obligation which the plaintiff alone was entitled to enforce. But, under the judicature acts, the court is authorized to grant a mandamus by an interlocutory order, in any cases in which it shall appear just and convenient that such order should be made. See Brown; Mozley Sr W. Under the United States revised statutes, as under former acts of congress, the supreme court has an extended power to issue writs of mandamus in cases warranted by the principles and usages of law; and the circuit and district courts may employ them when necessary in the exercise of their respective jurisdictions. There is, therefore, in the federal judiciary an employment of the writ substantially as the old prerogjurisdiction; also as a proceeding ancillary to a judgment previously rendered, in exercise of original jurisdiction, as when a circuit court, having rendered a judgment against a county, issues a mandamus requiring its officers to levy a tax to provide for payment of the judgment. For a view of the different uses of the writ in the federal courts, and of the procedui-e, see Rev. Stat. §§ 688, 716, and the cases cited in the notes. In the various States, mandamus is allowed and used as an important legal remedy, but under varying statutory regulations. In some of the States, mandate has been substituted, by statute, as the name of the proceeding. Writs of mandamus are either alternative or peremptory. The practice is to issue, upon the first application for relief, a writ in the alternative; that is, commanding the defendant either to perform the act demanded, or to show cause why he does not, before the court, at a time and place named. If defendant attends, and shows sufficient cause, judgment passes in his favor, and the writ is dismissed. If the cause shown is insufficient, or if he makes default, a second writ is issued, containing an absolute, unqualified command that he shall do the act in question. These ai-e respectively termed the alternative and the peremptory writs. MANDANT; MANDATOR. The bailor, or party asking the service, in a contract of mandate.