Mandamus

Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be, 'a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice.

In practice. This is a high state, in the name of the sovereignty, directed to any natural person, corporation, or inferior court of judicature within its jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their ofl5ce or duty. 3 BI Comm. 110; 4 Bac. Abr. 495; Opinion of Marshall, C, J., 1 Cranch (U. S.) 137, 168. It is a proper remedy to compel the performance of a specific act where the act is ministerial in its character (12 Pet. [U. S 1 524; 34 Pa. St. 293; 26 Ga. 665; 7 Iowa, 186, 390); but where the act is of a discretionary (6 How. [U. S.] 92; 11 How. [U. S.l 272; 17 How. [U. S.] 284; 12 Cush. [Mass.] 403; 20 Tex. 60; 10 Cal. 376; 5 Har. [Del] 108; 12 Md. 329; 4 Mich. 187; 5 Ohio St. 528) or judicial' nature (14 La. Ann. 60; 7 Cal. 130; 18 B. Mon. [Ky.] 423; 7 El. & Bl. 366), it will lie only to compel action generally (11 Cal. 42; 30 Ala. [N. S.] 49; 28 Mo. 259); and where the necessity of acting is a matter of discretion, it will not lie even to compel action (6 How. [U. S.] 92; 5 Iowa, 380). The writ of mandamus is either alternative or peremptory. The former usually Issued at the commencement of the suit, commanding in the alternative that defendant do the specified act, or show cause why he should. not, and the latter, issued after hearing, commanding the performance of the decree without alternative.

This is a high prerogative writ, usually issuing out of the highest court of general jurisdiction in a state, in the name of the sovereignty, directed to any natural person, corporation, or inferior court of judicature within its jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. 3 Bla. Com. 110; 4 Bacon, Abr. 495; per Marshall, C. J., in Marbury v. Madison, 1 Cra. 137, 168, 2 L. Ed. 60. See State V. Burdick, 8 Wyo. 588, 28 Pac. 146. It is a common-law writ with which equity has nothing to do; Gay v. Gilmore, 76 Ga. 725. It is an extraordinary remedy in cases where the usual and ordinary modes of proceeding are powerless to afford remedies to the parties aggrieved, and when, without its aid, there would be a failure of justice; Virginia, T. & Ck Steel & Iron Co. v. Wilder, 88 Va. 942, 14 S. E. 806. It confers no new authority and the party to be coerced must have the power to perform the act; Commissioners of Taxing Dist. v. Loague, 129 U. S. 493, 9 Sup. Ct 327, 32 L. Ed. 780. Mandamus has been termed a “criminal process relative to civil rights;” 3 Brev. 264. Its use is defined by Lord Mansfield in Rex V. Barker, 3 Burr. 1266: “It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions when the law has established no specific remedy, and where, in justice and good government there denied.” The same principles are declared by Lord Ellenborough, in Rex v. Archbishop of Canterbury, 8 East 219. See 6 Ad. & E. 321. The writ of mandamus is the supplementary remedy when the party has a clear right, and no other appropriate redress, in order to prevent a failure of justice. 12 Petersd. Abr. 438 (309). It is the absence of a specific legal remedy which gives the court Jurisdiction; 2 Selw. N. P. Mandamus; Com. V. Common Councils, 34 Pa. 490; Baker v. Johnson, 41 Me. 15; but the party must have a perfect legal right; Williams v. Cooper Court of Common Pleas Judge, 27 Mo. 225; Board of Trustees of Franklin Tp. v. State, 11 Ind. 205; People v. Thompson, 25 Barb. (N. Y.) 73; State v. Jacobus, 26 N. J. L. 135; People V. Olds, 3 Cal. 167, 68 Am. Dec. 398; and there must be a positive ministerial duty to be performed and no other appropriate remedy; State v. Knight, 31 S. C. 81, 9 S. B. 692; Shine v. R. Co., 85 Ky. 177, 3 S. W. 18; State v. Kinkald, 23 Neb. 641, 37. N. W. 612. Under the English system this writ acquired, and may probably be still said to retain, its prerogative character; but in the United States it is becoming more and more assimilated to an ordinary remedy, to the use of which the parties are entitled as of right. It was in this sense that Taney, C. J., characterized it in modern practice as “nothing more than an action at law between the parties”; Kentucky v. Dennison, 24 How. (U. S.) 66, 16 L. Ed. 717; see, also, Gilman v. Bassett, 33 Conn. 298; High, Extr. Leg. Rem. § 4. Swift V. State, 7 Houst. (Del.) 3.38, 6 Atl. 856, 32 Atl. 143, 40 Am. St Rep. 127. There is a tendency, however, in some states to adhere to the prerogative idea; People V. Board of Metropolitan Police, 26 N. Y. 316; City of Ottawa v. People, 48 111. 240. Though in Illinois the prerogative idea seems to have been lost under the statutory use of the writ, while the discretionary character remains; People V. Weber, 86 111. 283. It may be said to remain in this country an extraordinary remedy at law in the same sense that injunction is an extraordinary remedy in equity; High, Extr. Leg. Rem. § 5. The injunction is preventive and conservative, its object being to preserve matters in statu quo. Mandamus is remedial^ tending to compel action and redress past grievances; id. § 6, and cases cited. Mandamus cannot be used as a preventive remedy to take the place of an injunction; Legg v. City of Annapolis, 42 Md. 203. Mandamus, being remedial, is not available to compel the performance of an act that will work public or private mischief, or to compel compliance with the strict letter of the law in disregard of its spirit, or in aid of a palpable fraud, or to evade the payment of a just portion of a tax by taking The remedy extends to the control of all inferior tribunals, corporations, public ofllcers, and even private persons in some cases. But more generally, the English court of king’s bench, from which our practice on the subject is derived, declined to Interfere by mandamus to require a specific performance of a contract when no public right was concerned; 6 East 356; Bacon, Ab. Mandamus; Town of Woodstock v. Gallup, 28''Vt 687. Mandamus may be granted by an appellate court to require a judge of the lower court to settle and allow a bill of exceptions; Che Gong v. Steams, 16 Or. 219, 17 Pac. 871: Poteet V. County Com’rs, 30 W. Va. 58, 3 S. E. 97; Petition of Chateaugay Ore & Iron Co., 128 U. S. 644, 9 Sup. Ct. 160, 32 L. Ed. 508. It will also lie to compel an inferior court to exercise a discretion; Citizens’ Bank of Louisiana v. Webre, 44 La. Ann. 1081, 11 South. 706; but not to compel the court below to decide in a particular way, or to operate as a substitute for an appeal or writ of error, even if none is given by law; In re Rice, 155 U. S. 396, 15 Sup. Ct. 149, 39 L. Ed. 198. It is a proper remedy to compel the performance of a specilic act where the act is ministerial in its character; Moraw. Priv. Corp. 15; Roberts v. U. S., 176 U. S. 230, 20 Sup. Ct. 376, 44 L. Ed. 443; Borough of Unlontown V. Com., 34 Pa. 293; State v. Canal Co., 26 Ga. 665; State v. County Judge, 7 la. 186; State v. Bailey, id. 390; but where the act Is of a discretionary; Brashear v. Mason, 6 How. (U. S.) 92, 12 L. Ed. 357; Barrows V. Medical Society, 12 Cush. (Mass.) 403; Auditorial Board v. Hendrick, 20 Tex. 60; Magee v. Board, 10 Cal. 376; People v. Martin, 145 N. Y. 253, 39 N. E. 960; People v. Inspectors of State Prison, 4 Mich. 187; State V. Chase, 6 Ohio St. 528; or judicial nature; Merced Mining Co. v. Fremont, 7 Cal. 130; Goheen v. Myers, 18 B. Monr. (Ky.) 423, 7 E. & B. 366; (it will lie only to compel action generally; Ex parte Mahone, 30 Ala. 49, 68 Am. Dec. Ill; State v. Cramer, 96 Mo. 75, 8 S. W. 788; Satterlee v. Strlder, 31 W. Va. 781, 8 S. E. 652; Ramaguano v. Crook, 86 Ala. 226, 3 South. 845; State v. Com’rs, 119 Ind. 444, 21 N. E. 1097; Shine v. R. Co., 85 Ky. 177, 3 S. W. 18; State v. Edwards, 61

I. We command; a writ, formerly prerogative, issued out of a superior court, directing a person, a court an officer or a corporation, either public or private, to perform some duty ministerial, ofl Scial or public, or to restore the complainant to some right or privilege. The writ is termed peremptory or alternative, according as it directs the defendant to perform absolutely, or to perform or show cause.

Lat. We command, This is the name of a wril (formerly a high prerogative writ) which issues from a court of superior jurisdiction, and ig directed to a private or municipal corporation, or any of its officers, or to an executive, administrative, or judicial officer, or to an inferior court, commanding the performance of a particular act therein specified, and belonging to his or their public, official, or ministerial duty, or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived. The action of mandamus is one, brought in a court of competent jurisdiclion, to obtain an order of such court commanding an inferior tribunal, board, corporation, or person to do or not to do an act the performance or omission of which the law enjoins as a duty resulting from an ollice, trust, or station. Where discretion is left to the inferior tribunal or person, the mandamus can only compel it to act, but cannot control such discretion. Rev. Code lowa, 1880, § 3373. The writ of mandamus is either peremptory or aliernative, according as it requires the defendant absolutely to obey its behest, or gives him an opportunity to show cause to the contrary. It is the usual practice to issue the alternative writ first, This commands the defendant to do the particular act, or elsa to appear and show cause against itat aday named. If he neglects to obey the writ, and either makes default in his appearance or fails to show good cause against the application, the peremptory mandamus issues, which commands him absolutely and without qualification to do the act.

/. (We command.) A writ, formerly prerogative, issuing out of a superior court to an inferior court, a public or private corporation, or an officer, directing them to perform some public, ministerial, or official duty, or to restore the complainant to his rights and privileges. If peremptory, it directed the defendant to perform its orders absolutely; if alternative, to do so, or show cause to the contrary.

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.