THE LAW OF MANDAMUS and the PRACTICE CONNECTED WITH IT,
with an APPENDIX OF FORMS
by
Halsey H. Moses, Counselor-At-Law
ALBANY
William Gould & Son, Law Publishers
No. 68 State Street
1867
Reprinted and Published 1985
James von Schmidt
Publisher in Defense of the Constitution
P.O. Box 6704, Boise, Idaho 83707
Entered according to act of Congress, in the year one thousand
eight hundred and sixty-six by William Gould, in the Clerks
office of the District Court of the Northern District of New
York.
PREFACE
The law of mandamus, although a necessary and important
branch of the jurisprudence of the country, has heretofore been,
to some extent, inaccessible to a large majority of the
practicing lawyers, for the reason that it has lain scattered
through the many reported decisions of the various State and
federal courts of this country and of England. Besides the
difficulty and labor of hunting up the law applicable to a
particular case, even when the books were at hand, very few
lawyers either own or have access to, a sufficiently extensive
library. And notwithstanding it is a branch of the law not as
often resorted to as some others, yet every practitioner is
liable, any day, to be called upon to aid a client in securing
his rights through the instrumentality of this remedy.
The lawyer who has had little or no practice in this bench
of the law, and who has not had at command an extensive law
library to consult, has no doubt felt the convenience it would be
to the profession if the authorities bearing upon this subject
were collected together and arranged in some accessible form.
This work was undertaken with that object in view. Being of the
opinion that the speculations of even the most learned of men,
unless they occupy such an official position as will cause their
opinions to be regarded as authoritative, are of but little
importance to those who are seeking to know simply what the law
is, we have been content to present, almost exclusively, the
conclusions of those whose adjudications are entitied to be
regarded as authority.
And while there are, no doubt, imperfections and mistakes,
and many important matters overlooked, yet we hope and trust that
the profession, and the jndiciary, will find the work a great
convenience to them in the performance of their professonal and
official duties.
HALSEY H. MOSES.
Warren, O., October 1st, 1866
TABLE OF CONTENTS.
CHAPTER I.
INTRODUCTION Pages
Remedies an important branch of Civil Jurisprudence - What remedy
is provided against Public Officers who neglect or refuse to
perform their duty - Nature of this remedy - Remedy, when one is
prevented from executing an Office or exercise a
Franchise.................................................. 13-16
CHAPTER II.
GENERAL NATURE OF MANDAMUS.
What it was at Common Law - When grantable - What Court granted
the Writ - Jurisdiction or the Court of King's Bench - Source of
power to Issue the Writ by American courts - When to be Issued at
Common Law................................................. 16-19
CHAPTER III.
MANDAMUS TO INFERIOR JUDICIAL TRIBUNALS.
General rule - To sign hill of Exceptions - To compel them to
exercise their functions and render some Judgment - To enter a
Verdict, or sign a Judgment - To reinstate a Cause dismissed, and
entertain an Appeal - To compel Court to send up Papers on Appeal
- To compel Court to grant or vacate an Order for a new Trial,
where no discretion to do otherwise - But will not be granted to
a Court acting under a Special Commission, which has expired -
Nor to set aside a Judgment - May sometimes Issue to compel an
lnferior Court to restore an Attorney - May Issue to compel
Inferior Court to grant Process - To proceed and hear a Cause -
To hold a Court - To grant Letters of Administration - To remove
a Cause to a Federal Court - And a Court to assess Damages to
make Return - To appoint Appraisers - Will not be granted to
compel inferior Court to (to an act which will render the Judges
liable - Will not control Judicial Discretion - Nor to correct
the Errors of an Inferior Court - Nor to do any act It could not
do without such Mandate.................................... 19-59
CHAPTER IV
MANDAMUS TO SHERIFF.
To compel him to execute Process - To keep Office at county Seat
- To deliver up Body or Prisoner who has died - And to execute
Deed to Purchaser.......................................... 59-61
CHAPTER V
MANDAMUS TO CLERK OF COURT
To perform Ministerialduties - Will lie to compel him to deliver
Transcript - But not to control his Discretionary Powers - Nor
when the Party has another adequate Remedy..................61-63
CHAPTER VI.
MANDAMUS TO THE SECRETARY OF STATE
Cannot Issue to control Discretionary Powers of the Executive -
It is not by the Nature of the Office we are to determine whether
a Mandamus may issue, but by the thing to be
done........................................................63-65
CHAPTER VII.
MANDAMUS TO THE SECRETARY OF WAR AND NAVY.
To compel him to perform Ministerial Duties - To place on Pension
List certain Persons - Cannot control his Judgement - Nor to
interfere in his Ordinary Duties .......................65 -70
CHAPTER VIII.
MANDAMUS TO THE POSTMASTER-GENERAL
Can only be controlled in his Ministerial Duties ...........70-73
CHAPTER IX.
MANDAMUS TO THE SECRETARY OF THE TREASURY
May be compelled to perform Himisterial Duties - Will not compel
him to pay out Money out of the Treasury, unless Appropriated by
Law - Cannot litigate contested Claims against the Government by
proceedings in Mandamus....................................73- 80
CHAPTER X.
MANDAMUS TO GOVERNOR
Will not lie to control him in his Ordinary Duties - But will lie
to compel him to perform a Duty enjoined by Law.............80-84
CHAPTER XI.
MANDAMUS TO AUDITOR OF STATE
Will lie to compel him to draw his Warrant on the Treasury - And
to audit Claim - But not to allow a Claim when clothed with
authority to pass upon it .................................84 -88
CHAPTER XII.
MANDAMUS TO ATTORNEY-GENERAL.
Will not be granted when it will not finally avail anything - Nor
to compel him to do any act which the Law does not make it his
Duty to do................................................. 88-90
CHAPTER XIII.
MANDAMUS TO CANVASSERS.
To give Certificate of Election - To compel them to receive and
count Legal Votes ......................................... 90-92
CHAPTER XIV.
MANDAMUS TO STATE TREASURER.
To perform acts required by Law - Declining to Act, equivalent to
a Refusal.................................................. 92-93
CHAPTER XV.
MANDAMUS TO COUNTY AUDITOR.
To audit and allow Claim against County, if amount fixed by Law -
To examine and settle Demands - To enter Land on Tax Duplicate -
To compel him to do an Official Duty in a legal
manner..................................................... 93-99
CHAPTER XVI.
MANDAMUS TO COUNTY TREASURER.
To pay Claim audited and allowed by proper Authority - Not if
destitute of Funds - Otherwise, if he has misapplied the Funds -
Not compelled to pay illegal Charge, although settled and allowed
by proper Authority....................................... 99-102
CHAPTER XVII.
MANDAMUS TO COUNTY COMMISSIONERS.
To levy a Tax against County - To proceed and act upon Claim
presented - To accept and approve Official Bond - To declare and
certify who has received the highest munber of Votes - To apply
Money according to Law - To assess Damages against Railroad
Company - To take the supervision of a Highway - But not to
control Judgment or Discretion........................... 102-126
CHAPTER XVIII.
MANDAMUS TO OFFICERS OF MUNICIPAL CORPORATIONS.
To make provisions for payment of Corporation Debts - To draw
Order on Treasury - To define Line of Low-water Mark - To keep
Streets in repair.........................................126-134
CHAPTER XIX.
MANDAMUS TO OTHER OFFICERS.
To perfect incomplete Contract will not lie - To compel Town
Clerk to correct Record and record Deed - To compel Treasurer to
issue Warrant - To compel Selectmen to open Road - To compel
Township Treasurer to pay Order - To compel Trustees to make
proper distribution of Funds - To compel School Committee to
admit Scholars - To compel them to exclude those not
entitled................................................. 134-148
CHAPTER XX.
MANDAMUS TO CORPORATIONS.
What a Corporation defined to be - Will lie to compel one elected
to perform Duty - To admit or restore one to an Office - To
compel Corporation to do acts required by Law - To Railroad
Company - To enforce Payment when no other Remedy - To restore
Minister to his Pulpit - To compel Medical Society to admit
Member - Indictment not adequate remedy.................. 148-194
CHAPTER XXI.
PRACTICE IN MANDAMUS - PARTIES.
Issued in name of State, although substantially a Civil Remedy -
The Relator, in a matter of Private Interest, should have an
Individual interest - When a Private Citizen may apply - Should
be directed to the Person who is to execute the Writ - To a
Judicial Tribunal, should be directed to the Judges - May be
directed to them by Name ................................ 194-201
CHAPTER XXII.
PROCEEDING.
Formerly commenced by Motion for Rule supported by Affidavit -
The Respondent might show Cause against - Practice now to file
formal Complaint or Application....................... .. 201-204
CHAPTER XXIII.
THE APPLICATION.
Should present a prima facie Case - The truth of Facts set forth,
shown by Affidavit of Relator, or others - Should include all
Persons interested........................................204-206
CHAPTER XXIV.
THE ALTERNATIVE WRIT.
By whom Prepared - What to Contain - The Command - When Served -
Consequence if Defective................................. 206-210
CHAPTER XXV.
THE RETURN.
Who to make Return - What it should do - What Intendments made
against a Return - What may be done if Insufficient - Consequence
of Pleading to Return - What may be done if Insufficient -
Consequence of Pleading to Return - Need not be Single -
Consequence if part Good and part Bad - What Degree of Certainty
requited - Consequence of mading false Return - Consequence when
Return insufficient...................................... 210-222
CHAPTER XXVI.
THE PEREMPTORY WRIT.
When it may Issue in first instance - What it should Contain -
Proper return to Peremptory Writ - How compliance with Writ
Enforced - How Served.....................................222-225
CHAPTER XXVII.
WHAT COURTS MAY ISSUE THE WRIT.
In England - Judicial Power when vested by Constitution of United
States - Jurisdition of Supreme Court in such Cases - Of Circuit
Courts - State Courts................................... 225- 232
CHAPTER XXVIII.
JUDGMENT UPON PETITION FOR MANDAMUS REVISABLE IN ERROR.
Judgment reversable in Error - Practice previous to passage of
Anne, C. 20 - Difference between Judgment on Motion and Judgment
on Demurrer............................................. 232- 234
CHAPTER XXIX.
COSTS IN MANDAMUS.
Unless controlled by Statute, rests in Discretion of the Court -
Usual practice of Courts as to Costs ................... 234-235
APPENDIX.
Forms, Motion and Petition - Alternative Writ - Order of Court -
Return or Answer - Peremptory Writ - Affidavits ........ 236- 251
TABLE OF CASES.
A.
Adsit v. Brady........................................................ 99
Arberry v. Bearers.................................................... 49
B.
Bacon & Lyon, ex-parte................................................ 57
Bailey, ex-parte.................................................. 32, 55
Baker v. Johnson..................................................... 100
Balby and Worksop Turnpike road...................................... 191
Ballon v. Smith...................................................... 234
Bank of Columbia v. Sweeny........................................... 58
Barrows v. The Massachusetts Medical Society......................... 187
Barton v. Wilson..................................................... 150
Bates v. Plymouth.................................................... 194
Benson, ex-parte..................................................... 57
Bleecker v. St. Louis Law Commissioners.............................. 58
Bonner v. The State.................................................. 150
Bostwick, ex-parte................................................... 24
Bradstreet, ex-parte......................................... 21, 26, 227
Brashear v. Mason.................................................... 70
Burnett v. The Auditor of Portage county......................... 93, 108
Burr, ex-parte....................................................... 37
Burr v. Norton....................................................... 146
C.
C.W. & Z.R.R. Co. v. Commissioners of Clinton county................. 102
Carden v. General Cemetery Co........................................ 178
Carpenter v. Bristol................................................. 115
Carpenter v. County Commissioners.................................... 52
Carroll v. Board of Police........................................... 128
Case v. Wresler...................................................... 143
Castello v. St. Louis Circuit court.................................. 30
Caykendoll, ex-parte................................................. 56
Chamberlain, ex-parte................................................ 53
Chamberlain v. Sibley................................................ 82
Chance v. Temple..................................................... 135
Chase et al. v. Blackstone Canal Co.................................. 121
Chase v. Blackstone.................................................. 48
Church v. Slack...................................................... 18
Citizens' Bank of Steubenville v. F. M. Wright....................... 88
City of Zanesville v. Richards, auditor.............................. 98
Clapper, ex-parte.................................................... 142
Collins, Secretary of State v. The State............................. 89
Columbia Insurance Co. v. Wheelwright et al..................... 227, 232
Colton v. Ellis...................................................... 82
Commercial Bank of Albany v. The Canal Commissioners............ 203, 206
Commissioner of Land Office v. Smith................................. 65
Commissioners of Putnam county v. Auditor of Allen county............ 95
Commonwealth v. Atheam.......................................... 138, 153
Commonwealth v. Commissioners................................... 125, 205
Commonwealth v. Commissioners of Lancaster county.................... 124
Commonwealth v. Guardians of the Poor................................ 185
Commonwealth v. Judges of Com. Pleas of Philadelphia county.......... 95
Commonwealth v. Justices of Hampden.................................. 50
Commonwealth v. Penn. Beneficial Inst................................ 217
Commonwealth v. Philanthropic Society................................ 185
Commonwealth v. Pillsbury............................................ 127
Commonwealth v. St. Patrick's Society........................... 185, 188
Commonwealth v. Supervisors of Colley Township....................... 61
Commonwealth v. The Judges of Cumberland county...................... 37
County Court of Warren v. Daniel..................................... 49
Cram, ex-parte................................................... 19, 227
D.
Danly v. Whitely..................................................... 86
Davenport, ex-parte.................................................. 55
Davis v. Carter...................................................... 61
Dean and Chapter v. King............................................. 233
Decautur v. Paulding.............................................. 69, 77
Delaney v. Goddin.................................................... 49
Delavan v. Boardman.................................................. 20
Divine v. Harris..................................................... 85
Dodd v. Miller....................................................... 124
Dodge et al. v. County Com. of Essex................................. 113
Draper v. Noteware................................................... 61
Dunklin county v. District court..................................... 58
E.
Edwards v. Lowndes................................................... 192
Ellis v. County Commissioners........................................ 105
Evans v. Philadelphia Club........................................... 185
Everitt v. The People................................................ 204
F.
Felts v. Memphis..................................................... 198
Ferris v. Munn....................................................... 54
Fish v. Weatherwax................................................... 24
Fleming, ex-parte.................................................... 18
Fowler v. Peirce..................................................... 85
Fox v. Whitney....................................................... 234
Freas v. Jones....................................................... 28
Fremont v. Crippen................................................... 59
Fuller v. Trustees of Academic School in Plainfield.................. 151
G.
Garrabrant v. McCloud................................................ 29
Gorgas v. Blackburn et al............................................ 214
Granham et al. v. Maddox et al....................................... 127
Gray v. Budge..................................................... 48, 55
Green v. African Methodist Episcopal Society......................... 151
Griffith v. Cochran.................................................. 49
H.
Haight v. Turner..................................................... 31
Hall v. Crossman..................................................... 188
Hamilton, auditor v. The State....................................... 98
Hamilton v. State............................................... 194, 197
Hammon v. Covington.................................................. 131
Harrington v. County Com. of Berkshire............................... 115
Harwood v. Marshall.................................................. 150
Haskins v. Sencerbox................................................. 222
Hawkins v. Moore..................................................... 195
Heffner v. Commonwealth.............................................. 195
Helm v. Swiggett..................................................... 180
Hempstead v. Underhill............................................... 225
Henderson, ex-parte.................................................. 27
Hill v. County Commissioner.......................................... 122
Hollister & Smith v. The Judges of the District court................ 201
Hoxie et al. v. County Commissioners............................. 19, 199
Hoyt, ex-parte....................................................... 46
Hull v. Supervisors, &c.............................................. 105
Huff v. Knapp........................................................ 99
I.
Ingerson v. Berry................................................. 68, 91
Inhabitants of Mendon v. County of Worcester......................... 119
Inhabitants of Springfield v. County Com. of Hampden................. 120
J.
James v. Commissioners of Berks county............................... 124
Jared v. Hill........................................................ 81
Johns v. Auditor of State............................................ 206
Johnson v. Lucas..................................................... 58
Judges of Oneida Common Pleas v. The People.......................... 33
K.
Kendall v. Stockton.................................................. 77
Kendall v. Stokes et al.............................................. 109
Kendall v. The United States..................................... 72, 226
Kentucky v. Dennison................................................. 17
Kimball et al. v. Morris............................................. 24
King, ex-parte....................................................... 39
King v. Justices of Cambridgeshire................................... 48
King v. Justices of Monmouth......................................... 29
King v. Marquis of Stafford.......................................... 192
King v. Mayor, &c., of Cambridge..................................... 214
King v. Mayor of Cochester........................................... 150
King v. Mayor of Lynn................................................ 216
King v. Mayor of York................................................ 215
King v. Nottingham Old Water Works................................... 177
King v. Tooley....................................................... 224
Koon et al., ex-parte................................................ 35
Knox county v. Aspinwall............................................. 123
L.
Lamar v. Marshall.................................................... 64
Land. v. Abrahams.................................................... 38
Lewis v. Henly....................................................... 147
Life Insurance Co. v. Wilson......................................... 25
Loring v. Inhavitants of Alloway's Creek............................. 49
Low, ex-parte........................................................ 42
Low v. Towns......................................................... 80
Luce v. Mayhew et al................................................. 91
Lynch, ex-parte................................................. 107, 108
M.
Maddox v. Graham................................................ 127, 200
Mahone, ex-parte..................................................... 39
Mansan v. Smith, Governor............................................ 80
Many, ex-parte....................................................... 227
Marbury v. Madison............................................... 67, 227
Mason v. District No. 14............................................. 138
McCluny v. Silliman.................................................. 230
McCoy v. Harnett county.............................................. 205
McCullough v. Mayor of Brooklyn...................................... 108
McIntire v. Wood..................................................... 228
Meacham v. Austin et al.............................................. 46
Midberry v. Collins.................................................. 21
Milner, ex-parte..................................................... 41
Morgan v. Monmouth Plankroad Co...................................... 61
Morris, ex-parte..................................................... 232
Morse, Petitioner.................................................... 50
N.
Norris v. Irish Land Co.............................................. 179
Nourse v. Merriam et al.............................................. 147
O.
O'Farrall v. Colby................................................... 90
Ohio v. Chase, Governor.............................................. 82
Ohio v. City of Cincinnati........................................... 146
Ohio v. Commissioners of Clinton county......................... 103, 107
Ohio v. Commissioners of Marion county............................... 104
Ohio v. Loomis....................................................... 90
Ohio v. Lynch........................................................ 144
Ohio v. Moffitt...................................................... 84
Ohio v. The Court of Common Pleas of Fairfield county................ 43
Ohio v. The Judges of Clermont county................................ 21
Ohio v. Todd......................................................... 21
Ohio v. Todd et al................................................... 201
Ohio v. Trustees of Township No. 4................................... 145
Ohio v. Wright....................................................... 145
Ostrander, ex-parte.................................................. 35
P.
Pacific Railroad v. Governor......................................... 82
People v. Baker...................................................... 209
People v. Bissell.................................................... 80
People v. Board of Metropolitan Police.......................... 130, 150
People v. Board of Supervisors of New York........................... 208
People v. Brennen.................................................... 133
People v. Burrows.................................................... 86
People v. Canal Board........................................... 124, 135
People v. Collins et al.............................................. 43
People v. Collins et al......................................... 194, 197
People v. Commissioners of Perry county.............................. 194
People v. Commissioners of Seward.................................... 142
People v. Common Counsil of Brooklyn................................. 132
People v. Contracting Board.......................................... 124
People v. Cortelyou et al............................................ 46
People v. Croton Aqueduct Board...................................... 124
People v. Edmonds.................................................... 99
People v. Everett.................................................... 224
People v. Finger..................................................... 214
People v. Flag....................................................... 129
People v. Gale....................................................... 39
People v. Inspectors of State Prison................................. 195
People v. Judges, &c................................................. 43
People v. Judges of Cayuga county.................................... 24
People v. Judges of Columbia Common Pleas............................ 209
People v. Judges of Dutchess Common Pleas............................ 33
People v. Judges of Oneida Common Pleas.............................. 32
People v. Judges of Rensselaer Common Pleas.......................... 209
People v. Judges of Washington county................................ 27
People v. Judges of Wayne county..................................... 23
People v. Justices, &c............................................... 35
People v. Justices of Chenango county................................ 31
People v. Justices of Delware........................................ 37
People v. Kilduff.................................................... 132
People v. Lawrence................................................... 100
People v. Mayor, &c., of New York.................................... 193
People v. Mayor of New York.......................................... 138
People v. Mead et al............................................ 106, 108
People v. Medical Society of Erie............................... 184, 220
People v. Monroe Oyer and Terminer................................... 35
People v. New York Common Pleas................................... 34, 40
People v. Niagara Common Pleas....................................... 31
People v. Pearson.................................................... 40
People v. Perry...................................................... 132
People v. President and Trustees of Brooklyn......................... 233
People v. Ransom..................................................... 60
People v. Regents of the University.................................. 195
People v. Scates..................................................... 40
People v. Scrugham................................................... 150
People v. State Treasurer............................................ 92
People v. Steele..................................................... 182
People v. Stout...................................................... 99
People v. Superior Court of New York................................. 33
People v. Supervisors of Chenango county........................ 109, 125
People v. Supervisors of Columbia.................................... 235
People v. Supervisors of Columbia county........................ 106, 108
People v. Supervisors of Dutchess county............................. 209
People v. Supervisors of Livingston county........................... 122
People v. Supervisors of Richmond.................................... 221
People v. Supervisors of Schenectady................................. 126
People v. Supervisors of Westchester................................. 190
People v. Throop..................................................... 153
People v. Tracy...................................................... 37
People v. Tremain.................................................... 89
Peralta v. Adams..................................................... 39
Pike County v. The State............................................. 198
Proprietors of St. Luke's Church v. Slack........................ 18, 154
Q.
Queen v. Bristol and Exeter R. Co.................................... 176
Queen v. The Birmingham and Gloucester R. Co.................... 173, 219
Queen v. The Bristol Dock Co.................................... 172, 190
Queen v. The Eastern Counties R. Co............................. 176, 207
Queen v. The Manchester and Leeds Railway Co......................... 173
Queen v. The Norwich and Brandon R. Co............................... 175
Queen v. The York and North Midland R. Co............................ 176
R.
Redding v. Bell...................................................... 205
Reeside v. Walker................................................ 135, 74
Regina v. Bradford................................................... 128
Regina v. Bristol and Exeter R. Co................................... 178
Regina v. Fox........................................................ 60
Regina v. Great Western R. Co........................................ 179
Regina v. Hull and Selby R. Co....................................... 179
Regina v. Justices of Bristol........................................ 52
Regina v. Liverpool, Manchester and Newcastle-upon-Tyne R. Co........ 181
Regina v. London and Northwestern R. Co......................... 189, 212
Regina v. Stapylton.................................................. 42
Regina v. The Birmingham and Oxford R. Co............................ 225
Regina v. The Lancashire and Yorkshire R. Co......................... 156
Regina v. The Mayor.................................................. 148
Regina v. Ottery St. Mary............................................ 193
Regina v. The Southeastern R. Co..................................... 223
Regina v. The York and North Midland R. Co...................... 156, 219
Regina v. The York, Newcastle and Berwick R. Co...................... 213
Regina v. Trustees of v. and W. Turnpike Road........................ 191
Regina v. Trustees Sutton Road....................................... 155
Rex v. Band of England............................................... 180
Rex v. Barker........................................................ 182
Rex v. Bedford....................................................... 149
Rex v. Broderip...................................................... 53
Rex v. Buston........................................................ 155
Rex v. Hastings...................................................... 134
Rex v. Justices, &c.................................................. 198
Rex v. Justices of Wilts............................................. 48
Rex v. Merchant Factor's Co.......................................... 196
Rex v. Penrice....................................................... 216
Rex v. Robinson...................................................... 53
Rex v. Severn and Wye R. Co.......................................... 190
Rex v. Trustees of Swansea Harbor.................................... 177
Rex v. Wildman....................................................... 153
Rex v. Worchester Canal Co........................................... 181
Rex v. York.......................................................... 152
Robbins, ex-parte.................................................... 177
Roberts, ex-parte, v. Adshead........................................ 54
Rogers, ex-parte..................................................... 154
Runkel v. Winnemiller................................................ 182
Russell v. Elliott................................................... 39
S.
Sanger v. Commissioners of Kennebee.................................. 195
Sargent et al. v. Franklin Insurance Co.............................. 180
School Dist. No. 2 v. School Dist. No. 1............................. 138
Shelby et al. v. Hoffman............................................. 229
Sheppard v. Wilson................................................... 42
Shipley et al. v. The Mechanics' Bank................................ 180
Sikes v. Ransom...................................................... 20
Smith v. Jackson..................................................... 227
Smith v. Mayor and Aldermen of Boston................................ 115
Smyth v. Titcomb..................................................... 58
Spraggins v. County court of Humphries............................... 228
Squire v. Galo....................................................... 48
Stafford v. New Orleans Canal and Banking Co......................... 38
Stafford v. Union Bank of Louisiana.................................. 38
State v. Auditor of Hamilton county.................................. 95
State v. Bailey...................................................... 198
State v. Baird....................................................... 224
State v. Common Council.............................................. 152
State v. County Judge................................................ 198
State v. County Judge................................................ 204
State v. Davenport................................................... 127
State v. Dunn........................................................ 199
State v. Eveshane.................................................... 199
State v. Hastings.................................................... 87
State v. Jacobs...................................................... 61
State v. Judges of Bergen............................................ 28
State v. Judges of Kenosha county.................................... 58
State v. Judges of Sixth District court of New Orleans............... 58
State v. Lawson...................................................... 60
State v. Keokuk...................................................... 128
State v. Mitchell.................................................... 58
State v. Saxton...................................................... 59
State v. Slavin...................................................... 208
State v. Smith....................................................... 204
State v. The Hartford and New Haven R. Co............................ 171
State v. The Judges.................................................. 58
Strong, petitioner............................................... 91, 108
T.
Tatham v. Wardens of Philadelphia.................................... 130
Taylor, ex-parte..................................................... 52
Taylor v. Henry...................................................... 138
Ten Eyck v. Farlee................................................... 29
Terhune v. Barcalow.................................................. 38
Thomas v. Armstrong.................................................. 126
Thorpe v. Keeler..................................................... 29
Tillson, Jr. v. The Commissioners of Putnam county................... 102
Tilson v. Warwick Gas Light Co....................................... 178
Towle v. The State................................................... 85
Trapnall, ex-parte................................................... 42
Treat et al. v. Inhavitants of, &c................................... 141
True v. Plumley...................................................... 23
Trustees of Wabash and Erie Canal v. Johnson......................... 30
Turner, In Matter of.............................................. 17, 23
U.
Union Church of Africans v. Saunders................................. 182
Uniontown v. Commonwealth............................................ 131
United States v. Guthrie............................................. 78
United States v. Lawrence............................................ 46
United States v. Seaman.............................................. 79
V.
Van Renssclaer v. Sheriff............................................ 60
W.
Wabash and Erie Canal v. Johnson..................................... 30
Waldron v. Lee....................................................... 141
Walker v. Devereaux.................................................. 182
Ward v. Curtiss...................................................... 59
Whitney, ex-parte.................................................... 47
Wilkinson v. Providence Bank......................................... 181
Williams v. County Commissioners..................................... 89
Williams v. Judge of Cooper County................................... 61
Withrell v. Gartham.................................................. 155
Woodbury, petitioner, v. County Commissioners........................ 89
Wright v. Fawcett.................................................... 214
CHAPTER I:
INTRODUCTION
To simply define and declare what are the rights of the
citizen, is not the only object of civil government, and meets
only a part of the wants of a people.
An equally important branch of the civil and criminal
jurisprudence of a civilized nation, is the remedy provided by
law for those who have been deprived of their rights. And that
remedy which comes nearest to restoring, to the injured party
that of which he has been deprived, approaches nearest to a
perfect remedy.
In many cases it is impracticable to restore to the party
the thing he has lost, or to put him in possession of that which
is illegally withheld from him. As, for instance, where one's
trees have been cut down, or where the title to lands, purchased
with a warranty of title from the vendor, proves to be in a third
person. In such cases it is impossible for the law to restore to
the party his trees, or to secure to him a title to the lands;
but must be content to do the only thing practicable, award to
him such damages as will compensate him for the injuries
received. But if the vendor failed to obtain a title to the
lands, not because the legal title was rightfully in some other
person than the vendor, but because there was a defect in the
instrument of conveyance, by which means the title did not pass
to him, but remained in the vendor, the law affords the more
complete remedy of compelling the vendor to fulfill his
obligations, by making a full, complete, and adequate deed of
conveyance.
In order to maintain a system of government which will be
able to secure to the citizen his rights, it is necessary to have
persons appointed, or chosen, to administer the law. And when
persons are thus clothed with the power, and have assumed the
duties of a public officer, they have taken upon themselves the
obligation to perform those duties; and if they neglect or refuse
to do so, any person whose rights are thereby injuriously
affected, is entitled to demand relief. The remedy provided by
our system of law, as well as that of England, is a process
issuing from the judicial branch of the government, which seeks
to compel the officer to go forward and do that which is enjoined
upon him by the position he holds. This process is denominated a
writ of mandamus; and when there is a right to execute an office,
perform a service, or exercise a franchise, more especially if it
be a matter of public concern, or attended with profit, and a
person having such right is wrongfully kept out of possession, or
dispossessed of such right, and has no other specific legal
remedy, the court will interfere by mandamus, upon reasons of
justice and upon reasons of public policy, to preserve peace,
order and good government. (3 Stephens' Nisi Prius, 2292.)
It is substantially a civil remedy for the citizen who has
been deprived of his right, although the case is commenced, and
prosecuted, in the name of the State. The State, however, is only
nominally a party.
It will therefore be observed that it is one of the remedies
resorted to when a person desires to be placed in possession of a
right illegally and unjustly withheld from him. It does not award
damages as a compensation for an injury, but it seeks to give the
thing itself - the withholding of which constitutes the injury
complained of.
In every well constituted government the highest judicial
authority must necessarily have a supervisory power over all
inferior or subordinate tribunals, magistrates, and all other
exercising public authority. If they commit errors, it will
correct them. If they refuse or neglect to perform their duties,
it will compel them. In the former case, by writ of error, in the
latter, by mandamus.
And generally, in all cases of omission or mistake, where
there is no other adequate, specific remedy, resort may be had to
this high judicial writ. It not only lies to ministerial, but to
judicial officers. In the former case it contains a mandate to do
a specific act; but in the latter only to adjudicate, to exercise
a judgement, or discretion, upon a particular object.
The office of the writ of mandamus is very extensive. It has
been said that "it is the supplementary remedy, when all other
fail.
Its origin dates far back in the history of English
jurisprudence. It was invented because of public justice and good
government demanded it; and it has been from that time used, and
by legislative enactments fostered and improved, because the
wants of a progressive people required it. If in England it is
one of the flowers of the King's Bench, in America it is one of
the gems of our judicial system. By its aid the servants of the
government can be kept in subjection to the sovereign will - the
citizen admitted or restored to the post of honor or profit to
which he has been chosen by his countrymen, and the enjoyment of
a franchise granted to him by his government.
CHAPTER II:
GENERAL NATURE OF THE WRIT OF MANDAMUS
A writ of mandamus, at common law, was 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 with 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. (2 Black.
Com., 110.)
In England, it is denominated a prerogative writ because the
King, being the fountain of justice, it is interposed by his
authority, and transferred to the court of King's Bench to
prevent disorder from a failure of justice, where the law has
established no specific remedy, and where in justice and good
government there ought to be one. It is a writ of right, and lies
where there is a right to execute an office, perform a service,
or exercise a franchise; and a person is wrongfully kept out of
possession, and dispossessed of such right, and has no other
specific legal remedy.
It is also grantable where a person has a legal right to
insist that a certain act shall be done, the performance of which
is, by law, made the duty of a public officer.
In England, no court but the King's Bench has power to issue
it. That court derives its power to issue the writ from its high
and peculiar powers. And these high and peculiar powers were
possessed by the court of King's Bench, because the King
originally sat there in person, and aided in the administration
of justice. And according to the theory of the common law, the
King is the fountain of justice, and where the laws did not
afford a remedy, and enable the individual to obtain his right,
by the regular forms of judicial proceedings, the prerogative
powers of the sovereign were brought in aid of the ordinary
judicial powers of the court, and the mandamus was issued in his
name to enforce the execution of the law.
And although the King has long since ceased to sit there in
person, yet the sovereign is still there in construction of law,
so far as to enable the court to exercise its prerogative powers
in his name; and hence its powers to issue the writ of mandamus,
the nature of which is described by calling it extra-judicial,
and one of the flowers of the King's Bench.
The peculiar powers of the court of the King's Bench are
clearly stated in 3 Black. Com., 42, as follows:
"The jurisdiction of this court is very high and
transcendent. It keeps all inferior jurisdictions within the
bounds of their authority, and may either remove their
proceedings to be determined here, or prohibit their progress
below. It superintends all civil corporations in the kingdom. It
commands magistrates and others to do what their duty requires,
in every case where there is no other specific remedy."
"It protects the liberty of the subject by speedy and
summary interposition. It takes cognizance of both criminal and
civil causes; the former in what is called the crown-side, or
crown-office; the latter in the plea-side of the court."
But in America, the authority to issue the writ of mandamus,
does not exist as a prerogative power of the courts, but is
derived by grant from the government, through the constitution,
or legislative enactments. And when the power has been granted in
general terms to a court, it is to be governed by the common law
rules, as to when it is proper to be issued. (Kentucky v.
Dennison, 24 How. (U.S.) Rep., 66. In the matter of James Turner,
5 O.R., 543.)
As it was a remedy introduced to prevent disorder from a
failure of justice, in pursuance of the principles of the common
law, it ought now to be used upon all occasions where the law has
established no specific remedy, and where in justice and in good
government there ought to be one. If there be a right and no
other specific remedy, this writ should not be denied by our
courts. It may be stated as a general principle that this writ is
only granted for public persons, and to compel the performance of
public duties. (3 Stephens' Nisi Prius, 2291.) It can be resorted
to only in those cases where the matter in dispute, in theory,
concerns the public, and in which the public has an interest. The
degree of its importance to the public, is not, however,
scrupulously weighed. (1 Swift's Digest, 564.) A mandamus gives
no right, not even a right of possession, but simply puts a man
in a position which will enable him to assert his right, which in
some cases he could not do without it.
In order to lay the foundation for issuing a writ of
mandamus, there must have been a refusal to do that which it is
the object of the mandamus to enforce, either in direct terms, or
by circumstances distinctly showing an intention in the party not
to do the act required. (3 Stephens' Nisi Pruis, 2292. Redfield
on Railways, 441, Note 5.)
And although the power to issue a mandamus is not in America
regarded as a prerogative power, yet the writ so far partakes of
the nature of a prerogative writ, that the court has the power to
issue or withhold it, according to its discretion. And if issued,
it would manifestly be attended with hardship and difficulties,
the court may, and even should refuse it. (Ex parte Fleming, 4
Hill. 581.)
But this discretion is not an arbitrary one; it is a
judicial discretion; and when there is a right, and the law has
established no specific remedy, this writ should not be denied.
(The Proprietors of St. Luke's Church v. Slack, 7 Cushing's Rep.,
226.)
CHAPTER III:
MANDAMUS TO INFERIOR TRIBUNALS
The writ of mandamus is a proper remedy to compel inferior
tribunals to perform the duties required of them by law. But it
will not be granted unless the petition alleges facts sufficient,
if proved, to show that such court has omitted a manifest duty.
It must contain not only the affirmative allegations of
proceedings necessary to entitle the party to the process prayed
for, but it must also be averred that other facts, which would
justify the omission complained of, do not exist. (Hoxie v.
County Commissioners of Somerset, 25 Maine, 333.)
It was at one time doubted whether the writ would lie to an
inferior court, commanding it to sign a bill of exceptions. But
the case of Ex parte Crane et al., 5 Peters' Rep., 189, decided
that it did. That case was a motion made in the Supreme court of
the United States, for a writ of mandamus to be directed to the
Circuit court for the southern district of New York, in the
second circuit, commanding the said court, "to review its
settlement of the proposed bills of exceptions, and to correct,
settle, allow and insert, in the said bills, the charge delivered
to the said jury in each case, or the substance thereof." The
court after quoting from Blackstone's Commentaries, where he says
that it is the peculiar business of the court of King's Bench to
superintend all other inferior tribunals, and therein to enforce
the due exercise of those judicial or ministerial powers with
which the crown or legislature have invested them; and this not
only by restraining their excesses, but also by quickening their
negligence, and obviating their denial of justice, proceeded to
say, "It is we think, apparent that this definition, and this
description of the purpose to which it is applicable by the court
of the King's Bench, as supervising the conduct of all inferior
tribunals, extends to the case of a refusal by an inferior court
to sign a bill of exception, when it is an act which appertains
to their office and duty, and which the court of King's Bench
supposes to be consonant to right and justice."
"Yet we do not find a case in which the writ has issued from
that court. It has rarely issued from any court but there are
instances of its being sued out of the court of Chancery, and its
form is given in the register. It is a mandatory writ, commanding
the judge to seal it if the facts alleged be truly stated; `si
ita est.' * * * That a mandamus to sign a bill of exceptions is
warranted by the principles and usages of law, is, we think,
satisfactorily proved by the fact that it is given in England by
statute; for the writ given by the statute of Westminster the
second, is so in fact and is so termed in the books. The judicial
act speaks of usages of law generally, not merely of common law.
In England it is awarded by the chancellor; but in the United
States it is conferred expressly on this court, which exercise
both common law and chancery powers; is invested with appellate
powers, and exercises extensive control over all the courts of
the United States. We cannot perceive a reason why the single
case of a refusal by an inferior court to sign a bill of
exceptions, and thus to place the law of the case on the record,
should be withdrawn from that general power to issue writs of
mandamus to inferior courts, which is conferred by statute."
It was also so ruled in the case of Delavan v. Boardman and
White, 5 Wend., 132.
But where, by statutory provision, or the practice of
courts, bills of exceptions are required to be tendered at the
trial, or at least during the continuance of the term, the court
cannot be compelled to sign and seal it at a subsequent term.
(Sikes v. Ransom, 6 Johnson's Rep., 279.)
And where the return to an alternative mandamus commanding
the judges of a court of common pleas to sign and seal a bill of
exceptions or show cause, showed that the bill of exceptions was
not tendered to the judges at the trial, but was presented to
them individually at different times after the court had
adjourned for the term, the court above refused to grant a
peremptory mandamus, because the facts on which a bill of
exceptions is taken must be reduced to writing at the time, and
presented distinctly to the court during the trial, or at least
during the continuance of the term. (Midberry v. Collins et al.,
9 John., 345.)
But where a motion for a mandamus is for the purpose of
compelling the judge to sign a particular bill of exceptions, and
the cause shown is that the bill presented did not contain a true
statement of the facts, a peremptory mandamus will not be
granted. (State of Ohio v. Todd et al., 4 Ohio Rep., 351. Ex
parte Bradstreet, 4 Peters' Rep., 105.) The power of determining
whether a bill of exceptions is true or not, is vested in the
judges to whom it is presented for signature.
But where the return to the mandamus showed as a reason for
not signing and sealing the bill of exceptions offered to them,
that it did not contain certain documentary evidence, but it
averred they would have signed it had it contained those
documents, it was decided that these reasons alone are not
sufficient without showing further that those documents composed
a part of the testimony upon which their own opinions rested,
and which was related to the facts in the bill, and that the
counsel were apprised of this cause of refusal, and had an
opportunity to supply the defects of the bill. (The State of Ohio
v. The Judges of Clermont County, 1 Wester Law Journal, 358.)
Every court, in the exercise of its supervisory and
protecting charge over its records, and the papers belonging to
its files, has the power to direct the clerk to correct not only
clerical errors, but such errors as may arise from any fraudulent
or improper alteration or mutilation of its files or records. And
the exercise of this power is obligatory upon them, and if they
refuse to exercise it, mandamus lies against them.
Therefore, where an alternative writ of mandamus was issued
out of the Supreme court at the instance of Hollister and Smith,
directed to the judges of the District court, commanding them to
cause an order to be made (or show cause why they refuse so to
do), directing the clerk of the said District court to correct
the record in a certain action which had been tried in said
court, in which action said Hollister and Smith were defendants,
by restoring to the bill of exceptions signed, sealed and filed
in said case as a part of the record thereof, certain material
words which, as was alleged, the judge of the court of Common
Pleas, who presided at said term of the District court, had
improperly stricken out of the bill of exceptions, outside of the
court room, after the final adjournment of the court, without
personal consultation with either of the judges of said court,
and without the knowledge or consent of Hollister and Smith or
their attorneys, and which alteration as was alleged, was not the
act of the District court.
To this writ, it was among other things returned that, two
of the judges of the Common Pleas, holding the District court at
the time the bill of exceptions mentioned in said writ was
signed, were Messrs. Otis and Starkweather, whose official terms
had since then expired, and they no longer held the office of
judge. And that, "the judges of the Common Pleas now holding the
District court for said county, say they know nothing about the
facts set forth in said writ of mandamus, and, as judges, have no
power over the clerk in the premises, and can make no order that
he is bound to obey."
Bartley, C.J., in delivering the opinion of the court, said:
"Every court of record has a supervisory and protecting charge
over its records, and the papers belonging to its files: and may
at any time direct the correction of clerical errors, or the
substitution of papers in case the originals are purloined or
lost; and, in the exercise of the same authority, in case the
records, or files should be fraudulently or otherwise improperly
altered or defaced, may direct their correction and restoration
to their original condition. And in making such corrections, the
clerk is under the control and authority of the court."
"Two of the judges, it is said, have no knowledge of the
facts touching the alleged alteration of the bill of exceptions.
This is no legal excuse for not doing the act directed, when they
have the unquestionable authority to direct the relators and
other parties interested to produce their proofs in relation to
the matter. The personal knowledge of the judge is not essential
to the correction of the clerical error. He may inquire into the
matter and inform himself by competent evidence, and act upon
that, as he acts upon proof given in the court in the performance
of other judicial acts."
A peremptory mandamus was awarded. (Hollister & Smith v. The
Judges of the District Court of Lucas county, 8 O.S.R., 201. See
also True v. Plumley, 36 Maine Rep., 466.)
The writ may be addressed to subordinate judicial tribunals,
requiring them to exercise their functions and render some
judgement in cases before them, when otherwise there would be a
failure of justice from a delay or refusal to act. But when the
act to be done is judicial or discretionary, the court will not
direct what decision shall be made. (People v. Judge of Wayne
county, 1 Manning's [Mich.] Rep., 359. In matter of Turner, 5
O.R., 542.)
In the case of James Turner, 5 O.R., 542, the court say,
there is no doubt that the writ may issue, commanding an inferior
court to act, and proceed to judgement, yet it will not prescribe
what judgement to give. Yet when the party for whom a verdict is
found, will not move for judgement, the other party may pray for
judgement against himself. And when he thus prays for judgment
against himself, to the intent that he may bring a writ of error,
he is entitled to have it so rendered against him as matter of
right; and if the court refuse or neglect to proceed, a mandamus
will be granted to compel the court to give judgement. (Fish v.
Weathewax, 2 John. Cases, 215.)
And so where the court of Common Pleas had arrested
judgement for the alleged insufficiency of the declaration,
mandamus will not lie to compel the court to vacate the rule so
arresting judgment. The course is for the party, against whom the
rule is made to apply for judgment against himself, and then
bring error. If the court of Common Pleas refuse to give judgment
against him, the court above will then interfere by mandamus.(Ex
parte Bostwick, 1 Cowen's Rep., 143.)
So where a verdict has been obtained in an action, on which
the court refuses, or delays to give judgment, a mandamus may
issue. (The People v. The Judges of Cayuga, 2 John. Cases, 68.
Strange 113, 392. 1 John Cases, 279, 181. 19 John. Rep., 147.)
And in Massachusetts it has been granted to compel the court
of Sessions to enter the verdict of a jury in the assessment of
damages. (9 Mass., 388. 5 lb., 435.)
And to compel a probate court to issue his warrant for the
arrest of an insolvent who refused to obey the order of the
court.
The case of Kimball et al. v. Morris, Judge, &c., 2 Met.
(Mass.) Rep., 573, was a petition asking the court to exercise
its supervisory power over the proceedings of the judge of
probate, in a matter pending before him in a case of insolvency,
arising under the statute, by directing a writ of mandamus to
issue, requiring the said judge to issue his process for the
arrest and imprisonment of Davis, the alleged insolvent, for
refusing to obey the order of said judge requiring said Davis to
appear before him at a meeting of the creditors, and to produce a
schedule of his debts, and submit himself to an examination on
oath. The statute provided that, "the debtor shall at all times,
before the granting of his certificate as hereinafter provided,
upon reasonable notice, attend and submit to an examination of
oath, before the judge and the assignee, upon all matters
relating to the disposal of his estate," etc. It also provided
that, "in case the debtor, after being duly notified to appear at
the time and place appointed for said meeting for such purpose,
shall unreasonably neglect and refuse so to do, it was the duty
of the judge of probate to issue his warrant to a proper officer,
commanding him to arrest and commit such debtor to the common
jail, to remain in close custody until he shall obey the said
order of the said judge, unless he shall be released therefrom by
the supreme judicial court, or some justice thereof, on a writ of
habeas corpus pursuant to law." The petition for a mandamus was
sustained, and an alternative write issued, requiring the probate
judge to issue such warrant, or to show cause for refusing to do
so.
It may also be granted to compel the judge of a District
court of the United States, to sign a judgment rendered by his
predecessor in office. (Life Ins. Co. v. Wilson, 8 Peters' Rep.,
291.)
In that case, judgement had been rendered in the District
court of the United States for the eastern district of Louisiana,
in favor of the plaintiff. By the law of Louisiana, and the rule
adopted by the District court, a judgment without the signature
of the judge, cannot be enforced by execution; neither is it a
final judgement, on which a writ of error may issue for its
reversal. And after the rendition of the judgment, three days
were allowed by the law, within which to move for a new trial;
and if no new trial shall have been granted, the judge was
required to sign the judgment at the expiration of this time.
Judge Robertson, who was judge of the court at the time the
judgement was rendered, died without signing it, and was
succeeded by Judge Harper. About six years after the rendition of
the judgment, and four after the death of Judge Robertson, a
notice was filed in the clerk's office, to the defendant, that at
the next term, application would be made to the District Judge,
on behalf of the plaintiff, to sign the judgment. A motion to
that effect was made, which was overruled by the court, on the
ground that a judgment by the practice of that court, was not
complete, and therefore no judgment at all, until signed by the
judge; that the successor of Judge Robertson could not sign the
judgment without making it his own, thereby pronouncing on the
rights of the parties whose cause he had never heard. A motion
was then made in the Supreme court of the United States for a
writ of mandamus, to be directed to the District judge,
commanding him to sign the judgment.
Mr. Justice McLean, delivering the opinion of the court,
said: "But the District judge is mistaken in supposing that no
one but the judge who renders the judgment can grant a new trial.
He, as the successor of his predecessor, can exercise the same
powers, and has a right to act on every case that remains
undecided upon the docket, as fully as his predecessor could have
done. The court remains the same, and the change of the incumbent
cannot and ought not, in any respect, to injure the rights of
litigant parties."
The court also decided that the act of signing was a
ministerial and not a judicial act; that the plaintiff had a
right to be placed in such a posture as would enable him to
proceed to another trial, or to take out execution on his
judgment. The writ of mandamus was therefore allowed.
A mandamus may also be issued to an inferior court,
commanding that it reinstate a cause dismissed, and proceed to
try and adjudge the same according to the rights of the case. (Ex
parte Bradstreet, 7 Peters' Rep., 647.)
And where the court below order proceedings to be finally
stayed, upon suggestions of the attorney for the United States in
a case in which the United States are not a party, the Supreme
court will order a mandamus nisi, in the nature of a procedendo.
(Livingston v. Dorgenois, 7 Cranch, 577.)
So where an inferior court make an order in a case which is
in violation of the plain legal rights of one of the parties, and
by virtue of such order refuse to proceed further in the case,
the inferior court can, on mandamus, be compelled to vacate the
order. Therefore, where an appeal had been taken from a
magistrate's court to the court of Common Pleas, andthe bail
required by statute had been given, and where, under a general
rule of the court of Common Pleas requiring additional bail in
cases of appeal, a rule had been entered staying the proceedings
in the case by reason of non-compliance with such general rule,
it was held that the court of Common Pleas had no power to make
a rule as to bail on appeal different from the statutory
requirements; and, therefore the Superior court, on mandamus,
ordered the rule to be vacated, and that the court proceed with
the case. (The People v. The Judges of Washington County,1 Cowen,
576.)
So, a court having appellate jurisdiction from an inferior
court, and which has refused to entertain an appeal of a case,
may be compelled to do so by writ of mandamus from a higher
court. (Ex parte Henderson, 6 Florida,279.)
And in New Jersey, where an appeal was taken from the
judgment of a justice to the Common Pleas, and the appeal bond
had been delivered; and the justice, either from the want of
opportunity or forgetfulness, as he himself stated, did not send
up the proceedings to the court on the first day of the term; and
the appellant, perceiving that the justice had not sent up the
proceedings as was required of him by law, went to the house of
the justice and procured from him the transcript, appeal bond and
proceedings, and brought them into court during the term, but
after the first day, when they were duly filed. The next
following term the court dismissed the appeal, and assigned the
following reason for so doing: that the transcript of the justice
was not filed on the first day of the court next after the
judgment was given by the justice below. The court above ordered
a mandamus, because the act requiring the appeal papers to be
sent in on or before the first day of the term is only directory
to the justice. (The State v. The Judges of Bergen,2 Pennington's
R., 541.)
But where, as in Ohio, the justice shouldrefuse to furnish
the appellant with a certified transcript, a mandamus would be
granted to compel him to do so.
And in the same State, where a court of common pleas
dismissed an appeal for want of the necessary affidavit, a
mandamus was allowed to reinstate the case. The affidavit, which
had been made, and which in other respects was sufficient, having
been written on the back of the appeal bond, the court above
granted a mandamus, observing: "The court of Common Pleas no
doubt dismissed the appeal in this case in consequence of what
was said by this court in the case of Freas v. Jones, 3 Green's
R. 20; but on one or two occasions since that case was decided,
we have expressed an opinion that the objection ought to be to
the bond and not to the affidavit. The party, by putting his
affidavit on the bond, has in effect deprived his adversary of
the benefit of it. For the court of Common Pleas cannot deliver
the bond to the appellee for prosecution, without delivering with
it the affidavit also, which ought not to be done. If the
objection had, in this case, been made to the bond, the appellant
might immediately have substituted a new one; but another
affidavit would have come too late. Let a mandamus, therefore,
issue as prayed for."
And where an appeal was dismissed because the appeal bond
was not sealed, and by statute it was provided that "the court
may permit the appellant to substitute a new one, in the placeof
the appeal bond filed and sent up by the justice," a mandamus was
allowed to compel the court to permit an appeal bond to be
substituted, and the appeal reinstated. (Garrabrant v. McCloud, 3
Green R., 462.)
But a mandamus will not be granted to restore an appeal
which was dismissed because there was no subscribing witness to
the appeal bond, unless the appellant and his suretyhad offered,
instanter, to re-execute the bond in the presence of one or more
witnesses, or to substitute a new bond.(Thorpe v. Keeler, 3
Harrison, 251.)
A peremptory mandamus has been granted to a court of Common
Pleas, commanding them to reinstate an appeal dismissed for want
of prosecution at a special term after demanded. (Ten Eyck v.
Farlee, 1 Harrison, 269.)
These cases seem somewhat to conflict with the rule that
error, and not mandamus, is the proper remedy wehre the court has
made an erroneous decision; and also, with the case of The King
v. The Justices of Monmouth, 7 Dow. & Ryl., 334, where the Court
of Sessions had quashed an appeal, and a motion for a mandamus
was denied by the King's Bench, for the reason that, "where the
sessions forbear to give any judgement at all, this court will
interpose to compel them to go on and pronounce judgement; but
where they have actually given judgment, even under a mistake
oflaw, this court has never yet interposed to disturb their
decision." The court further said: "If we were to grant this
application, we should be opening a door to continued litigation,
and enormous expense, in every case where the propriety of the
decision of the sessions might be questioned, either on the
ground of mistake in law in fact. There seems to be no authority
for such a proceeding; and as ourp redecessors have not
recognized its propriety, we are certainly not disposed to take a
step which is so pregnant with mischievous consequences."
In the case of The Commonwealth v. The Judges of Common
Pleas of Philadelphia county, the question was whether a mandamus
would lie for such purpose. The court held that although they
might command an inferior judge to proceed to judgment, yet they
had no power to compel him to decide according to the dictates of
any judgment but his own. And that upon this principle it would
be improper for them to issue the writ, as the court of Common
Pleas had already given judgment according to their own
convictions. The court say: "There is another reason; a writ of
error lies in this case, and therefore a mandamus cannot issue.
The rule is, that a writ of error lies in all cases, when a court
of record has rendered final judgment, or made an award in the
nature of a judgment. The striking off the appeal is certainly in
the nature of a judgment, making an end of the cause by the act."
If the above cases decided by the Supreme court of New
Jersey were correctly determined, they must rest on the principle
that where an inferior judicial tribunal declines to hear a case
upon a preliminary objection, and that objection is purely a
matter of law, a mandamus from a superior court will be granted,
if the inferior court has misconstrued the law. This doctrine is
maintained by the court in the case of Castello v. St. Louis
Circuit court, 28 Miss. (7 Jones') Rep., 259.
A mandamus may also issue to an inferior court, commanding
it to send up papers on appeal. (The Trustees of the Wabash &
Erie canal v. Johnson, 2 Ind.[Carter] Rep., 219.)
In that case, Johnson petitioned the Board of Trustees of
the Wabash and Erie canal, to have hisdamages assessed for injury
occasioned by taking his land. In this petition he prayed to have
the assessment made according to the provisions of the statute in
such case made and provided. The appraisement was made by the
appraisers appointed for the purpose. Johnson appealed to the
Circuit court, and required the board to certify the cause to
that court, which they refused to do, claiming that Johnson had
no right to appeal. A mandamus was granted, compelling them to
certify the case.
And where the judgment of a Circuit court is reversed, and
the proceedings up to a certain point are set aside at the costs
of the defendent in error, and the cause is remanded for further
proceedings; if the Circuit court refuse to render a judgment for
costs according to the mandate, the Supreme court will grant a
rule to show why a mandamus should not issue. (Jarel v. Hill, 1
Black [Ind.] Rep., 155. Post., 39.)
And when a court of inferior jurisdiction, not possessing
the power to grant new trials, nevertheless undertakes to do so,
the writ will lie to compel a judgment. (Haight v. Turner, 2
Johns, 371. The People v. The Justices of Chenango, 1 Johns
Cases, 180. Ferman v. Murphy. 2 Pennington, 747.)
And in the case of The People v. Niagara Common Pleas, 12
Wend., 246, it was determined that where a court of Common Pleas
set aside a report of referees on the merits, and erred in so
doing, a mandamus will be granted directing the Common Pleas to
vacate the order setting aside the report of the referee.
But in a State where the error could be reached by a
proceeding in error, it is somewhat difficult to determine upon
what principle the decision can be sustained. And in the case of
The People v. The Judges of Oneida Common Pleas, 21 Wend., 20, it
was decided that a mandamus does not lie to a court of Common
Pleas, directing the vacating of a rule of that court, setting
aside a report of referees, although the Common Pleas in the
decision made by them clearly erred; and the case of The People
v. Niagara Common Pleas, above cited, was substantially
overruled. Judge Cowen, in a separate opinoin announced in this
case, declared his unwillingness to consent to the granting of a
mandamus, for the purpose of disturbing any judicial decision
whatever, of an inferior court or magistrate.
Mandamus has also been held to be a proper remedy to compel
an inferior tribunal to grant, or vacate an order for a new
trial, where the granting of such order is not a matter of
discretion with such court, but depends upon fixed principles and
rules.
Therefore, in the case of The People v. The Superior court
of the City of New York, 5 Wend., 114, it was conceded that a
Superior court would not, by mandamus, interfere, or attempt to
coerce, the discretion of an inferior court when it is not, and
cannot be governed by any fixed principles or rules; yet where it
has exercised its discretion in a matter which is governed and
controlled by well established rules, and has erred therein, a
mandamus may be granted. And as it appeared in that case, that
the court below had granted a new trial in violation of a well
settled rule that a new trial will not be granted where the
newly discovered evidence consists of merely additional, or
cumulative facts and circumstances relating to some matter or
point, which was principally controverted upon the former trial,
a mandamuswas allowed to vacate the rule granting such trial.
But there is no standard by which the weight of conflicting
evidence can be ascertained. Different courts and juries, and
individuals would entertain different opinions upon the subject,
and each must judge for themseleves. Therefore applications for
new trials on the ground that the verdict is against evidence,
are addressed to the discretion of the court, and cannot be
controlled by mandamus.
In ex parte Bailey, 2 Cowen, 479, a motion was made in the
court below for a new trial on various grounds, and among others,
that the verdict of the jury was against the weight of evidence.
The motion was refused, and upon an application for mandamus, the
court above observed, that though inextreme cases it might
interfere, and control inferior courts upon questions of fact,
presented in the form of a motion for a new trial, yet it is a
remedy which should be used very sparingly. A contrary course
would draw before the court an examination of those questions
which address themselves merely to the discretion of the inferior
court. It would be perpetually appealed to for the adjustment of
rights undefined by law. This would result in an endless conflict
of opinion upon questions, which must, from their very nature, be
finally determined by the court below, because they cannot be
reached by the rules of law; and although the superior court may
t hink the inferior court erred, yet it will not interfere. The
writ was therefore refused.
In the case of The People v. The Superior court of the City
of New York, before cited, it was also held that where the
evidence is all upon one side, and clear and satisfactory, it
ceases to be a matter of discretion; that there is no room for
difference of opinion: and it would be an abuse, not an exercise
of discretion, to refuse a new trial, and a court above might,
and ought to interfere. It was also maintained that if an
inferior court should deny to a party the benefit of an
established general rule of practice, not depending at all upon
circumstances, the court above should interefere, and compel the
inferior court to conform to such rule.
The decision in this case, sofar as relates to the power of
a superior court to control inferior courts in granting or
refusing new trials, was somewhat shaken in the subsequent cases
of The Judges of the Oneida Common Pleas v. The People, 18 Wend.,
79, and The People v. The Judges of Dutchess Common Pleas, 20
Wend., 658, in which cases the former decision was reviewed and
condemned, as going beyond the correct rule.
The proposition maintained in those cases is, that the
office of a mandamus is merely to put an inferior court,
magistrate, or ministerial officer in motion; but that when
discretionary, or judicial powers have been exercised upon a
matter within the jurisdiction of the inferior court or
magistrate, although in making the decision the tribunal has
mistaken either the law or the fact, or both, and whether there
be a remedy by writ of error, certiorari, &c., or not, the
superior court cannot compel a change of determination by
mandamus.
The case of The People v. The Judges of Dutchess Common
Pleas was heard on motion for a peremptory mandamus, on return to
an alternative writ, requiring the judges of the court of Common
Pleas to vacate a rule quashing an appeal. And although it was
held that the Common Pleas erred in ordering the appeal to be
quashed, yet a peremptory writ was denied, on the ground that the
court did not possess the power to review judicial errors of any
kind, by mandamus.
But where, on a demurrer to a declaration for the cause that
the caption of the declaration was of a day anterior to the
occurring of the cause of action, a court of Common Pleas gave
judgment for the plaintiff, and also allowed him to amend his
declaration so as to cure the defect, and at the same time
refused leave to the defendent to plead to the amended
declaration, a mandamus was awarded, directing the Common Pleas
either to vacate so much of their order as gave the plaintiff
leave to amend, or so much thereof as refused the defendent leave
to plead. (The People v. The New York Common Pleas, 18 Wend.,
534.)
And where a motion to set aside the report of a referee is
denied, the party who thinks himself aggrieved may, according to
the practice in some States, have a review by writ of error, as
to all questions of law involved in the decision, but not as to
questions of fact. The decision of the court of original
jurisdiction upon questions of fact is just as final and
conclusive when a motion is made to set aside a report of
referees, as it is on a motion to set aside the verdict of a
jury. And where a rehearing has been denied, if the party wishes
to bring error, a case, or statement of the facts, must be
prepared and inserted in the judgment record; and a mandamus will
lie to an inferior court compelling it to make a statement of
facts, and say what conclusions of fact the referees were
warranted in drawing from the evidence.
But a superior court cannot, by mandamus, undertake to
control the court as to what particular facts the case shall
contain. (The People v. The Justices of the, &c., 20 Wend., 663.)
A mandamus will not be granted to a court acting under a
special commission which has expired by its own limitation,
previous to the motion for the writ. (The People v. The Monrow
Oyer andTerminer, 20Wend., 108.)
And in the case of ex parte Ostrander, 1 Denio, 644, it was
also held that a mandamus will not lie to compel a judicial
tribunal to set aside a decision which it has made. That was
where a cause had been heard before refeeres, who reported for
the plaintiff for a certain sum, who declined to receive it, and
about thirteen months afterwards died. After the death of the
plaintiff, the defendant made application to the court of Common
Pleas to grant a rule to the effect that the representatives of
the deceased plaintiff might file a record, and perfect judgment
on the report, and upon their default therein, that the defendent
might, within two terms after the plaintiff's death, perfect such
judgment nunc pro tunc, which was granted.
A motion was then made, on behalf of the executors of Koon,
the deceased plaintiff, for a mandamus to compel the Common Pleas
to discharge the rule. Beardsley, J., said "After such great
delay, for which no excuse appears,this court would have denied
the applicaiton made inthe court of Common Pleas, as altogether
out of time, and that without looking at the question of power to
aidthe party applying or entering at all into the merits of the
particular application. But we disclaim all right to control the
decision of the court of Common Pleas, in a case like this, by a
writ of mandamus. If that court has authority, at this late day,
to perfect a judgment, as the rule assumes, it will do so
according to its own rules and practice, and to its own sense of
propriety and justice; and if, on the other hand, it has no such
power, the aggrieved party will be entitled to redress by writ of
error, or other appropriate remedy. That court has passed upon
the question before it, and the result of which complaint is now
made, is a judicial determination. If that is erroneous, it is a
judicial error, which cannot be corrected by writ of mandamus.
The writ is appropriate to compel subordinate courts to proceed
and determine cses pending before them. It also lies to correct
many errorsof ministerial officers, and even those of courts when
in the exerciseof mere ministerial functions. But in no case does
it lie to compel a judicial tribunal to render any particular
judgment, or to set aside a decision already made."
And where, by statute, it is made unlawful for persons other
than Indians to settle on certain lands, and it is still further
required that any judge of the court of Common Pleas, on
complaint made to him, and on due proof of the fact of such
settlement, to issue his warrant to the sheriff, requiring him to
remove the intruders, and upon the hearing of such complaint by a
judge of the court of Common Pleas, the judge refuses to issue
his warrant, his decision upon the matter is final and
conclusive, so far as concernsthe remedy by mandamus. (The People
v. Tracy, 1 Denio's Rep., 617.)
This remedy has been employed to compel a court of inferior
jurisdiction to admit or restor an attorney; but it is doubtful
whether it can properly be extended to this purpose. There are
authorities, however, showing that it has been allowed to restore
one to an attorney's place in an inferior court. Because it was
said, his is an office concerning the public justice; and he is
compellable to be an attorney for any man; and has afreehold in
his place. (Bacon's Ab., tit. Mandamus.)
And in the case of The People v. The Justices of Delaware, 1
John's Cases, 181, the Supreme court directed the restoration of
an attorney who had been removed from his office, by a court of
Common Pleas. But this decision seems to have been made on the
ground that as there was an act of the legislature providing that
if the court of Common Pleas removed an attorney from office, he
could not be admitted to practice in the Supreme court; and, it
was said, to allow the Common Pleas to thus disqualify an
attorney of that court, would be giving it the power of
superintending and controlling the officers of the Supreme court.
A different rule was there refused to compel a court of
Common Pleas to proceed to examine a person applying to be
admitted as an attorney, notwithstanding the Supreme court was
satisfied that he came within the rule of the Common Pleas.
Their refusal was put upon the ground, that the admission of
an attorney is not a ministerial, but a judicialact, and
therefore not the subject of this writ.
The case of ex parte Burr, 9 Wheaton's Rep., 529, was a
motion for a rule to show cause why a mandamus should not issue
to the Circuit court for the District of Columbia, commanding the
court to restore Burr, an attorney of that court, who had been
suspended from practice for one year by order of that court.
Chief Justice Marshall, in delivering the opinion of the
court, said that the application was a very unusual one, and one
upon which the court felt considerable doubts; and without
directly deciding the question, declared that the court was not
inclined to interpose unless it was in a case where the conduct
of the Circuit or District court was irregular, or was flagrantly
improper.
Mandamus is also a proper remedy to compel an inferior court
to grant the usual legal process to enforce a judgment. Thus, in
New Jersey, where a justice of the peace entered a judgment
against a defendent, and afterwards made a conditional order that
the judgment should be opened upon the payment of costs by the
defendent on a certain day, and notwithstanding the defendent
neglected to pay the costs on the day prescribed, the justice
refused to issue execution after being requested by the plaintiff
so to do, a mandamus was granted to compel him to perform his
duty. (Terhune v. Barcalow, 6 Halst., 38. Land v. Abrahams, 3
Green., 22.)
So where it is the duty of the judge, in allowing an
appeaal, to take security on the appeal, in the sum decreed; if
this is not done the appellant is not entitled to a supersedeas
of any process necessary to carry the decree into effect; and the
court is bound, on applicaiton of the plaintiff, to issue such
process. If it refuses to do this, the appellate court will issue
a peremptory mandamus commanding that the decree be carried into
effect. (Stafford v. Union Bank of Louisiana, 17 How., U.S. Rep.
275. Stafford v. New Orleans Canal and Banking Co., 17 How. U.S.
Rep., 283.)
And it has also been decided that a mandamus may be issued
to the clerk of an inferior court, commanding him to issue an
exception. (The People v. Gale, 22 Barb., 502, But see 10 Cal.,
333.)
And in Alabama it has been decided that if a judicial
officer, before whom a prisoner is brought on habeas corpus,
improperly refuses to hear and decide on the evidence touching
his guilt, mandamus lies to compel a hearing. (Ex parte Mahone,
30 Ala., 49.)
And in the same State it has also been held, that the wife
has a right to a support out of her husband's estate, pending a
suit for divorce against him, and also to such sum as is
necessary to procure solicitors to conduct the suit for her; and
when this right is denied by the chancellor, at any time before
final alimony is set apart to her, a mandamus will be awarded
from the Supreme court, to compel him to make the necessary
order, as there is no other adequate and specific remedy. (Ex
parte King, 27 Ala. Rep., 387.)
It may also be issued, to an inferior court, directing it to
enter judgment on the report of a referee. (Russell v. Elliot, 2
Cal. Rep., 245.)
But it is said that it is not the proper remedy where an
inferior court refuses to enter a judgment for costs, as the
party complaining has a right to appeal from such defective
judgment, or he may resort to his action for the costs. (Peralta
v. Adams, 2 Cal. Rep., 245. Ante. 31.)
And in Illinois, where the declaration in a civil action
contained a special count on a note, and the common money counts;
a copy of the note was filed in due time, but no bill of
particulars under the common counts. The defendent moved a
continuance, upon the ground that the declaration had a special
count, and the common counts, and there was no account filed with
the money counts. The plaintiff entered a cross motion, to file a
stipulation that he only sought to recover, on the note, and to
proceed to trial. The Circuit court overruled the cross motion,
and continued the cause. The Supreme court, on application of the
plaintiff, awarded a peremptory writ of mandamus, to compel the
circuit judge to grant the plaintiff's cross motion. (The People
v. Pearson, 1 Scam. Rep., 460. Ib., 475.)
And in a suit against the maker and indorser of a promissory
note, sued jointly, under a statute authorizing the hold to
proceed against several parties to a bill or note in one action,
where a general verdict is found for the defendent, if on a
motion for a new trial, the court are of opinion that the verdict
is wrong as to the maker, but right as to the indorser, they
should permit the verdict to stand as to the latter, and allow
him to enter judgment thereon in his favor, and grant a new trial
only as to the maker; and when, instead of doing so, a court of
Common Pleas sets aside the verdict as to both defendents, a
Superior court has power to award a mandamus directing the Common
Pleas to vacate the order for a new trial, as it regards the
indorser, and to proceed and render a judgment in his favor. (The
People v. The New York Com. Pleas,19 Wend., 118.)
And when a change of venue was granted in a capital case, by
consent of parties, to another county; and after the case was
removed, the State moved the judge of the court of the county to
which it was removed to dismiss the cause from the docket for
want of jurisdiction, which the court allowed, and remanded the
prisoner to the county in which the indictment was found, for the
reason that the defendant had not complied with the statute by
filing his petition to the Circuit court of the county where the
indictment was found, verified by affidavit, for a change of
venue; and also because the consent of parties could not give
jurisdiction to the Circuit court of the county to which the
cause was sought to be removed. The reasons were held to be
insufficient, and a peremptory mandamus was awarded, requiring
the Circuit court of the county to which the cause was removed to
proceed and try the cause. (The People v. Seates, 3 Scam. (Ill.)
Rep., 351.)
Where a judge of an inferior court has entered upon the
hearing of a plaint, and from the evidence adduced before him has
decided that he has no jurisdiction to adjudicate between the
parties, a mandamus will not lie commanding him to hear and
determine it, even although he may be wrong in point of law. The
rests upon the principle that where jurisdiction depends upon the
existence of certain facts, which must be determined upon by the
weight of evidence, the inferior court's decision cannot be
reviewed in a mandamus proceeding. But it would be otherwise if,
in a case in which the inferior court has jurisdiction, it
refuses to hear the cause upon the mistaken notion that it has no
jurisdiction to do so in respect of some preliminary matter.
(Milner, ex parte, 6 Eng. Law and Equity Rep., 371.)
Therefore, in a case where the goods on A's premises having
been seized in execution on a judgment against him in a county
court, B put in the following claim in respect to them: "I give
you notice, that by a certain indenture dated, & c., between A,
of the one part, and me of the other part,reciting, &c., A did
grant, convey and assign unto me all the household goods,
furniture, personal estate and effects whatsoever of him, the
said A, then, or at any time thereafter during the continuance of
the said security, about his house, brewery and premises, &c., I
do hereby claim, all and singular, the goods and chattels
mentioned and intended to be assigned by the deed, and which were
in the possession of A, upon the execution of the said deed, and
which said goods and chattels, or some part thereof, have been
seized and taken possession of by you by virtue of a certain
writ, &c." On the hearing of the interpleader summons, the County
court judge held that the notice and particulars of claim were
insufficient, for want of an inventory specifying which of the
goods and chattels seized by the bailiff were claimed by B, and
consequently refused to adjudicate upon the claim. The court
above made, absolute, a rule for a mandamus, calling upon the
County court judge to proceed u pon the interpleader summons, and
to hear and determine upon the claim. (Regina v. Stapylton, 7
Eng. Law and Eq. Rep., 390.)
And where a cause is improperly stricken from the docket,
mandamus is the proper remedy to procure it to be reinstated. (Ex
parte Low, 20 Ala. Rep., 330.)
And where a judge of an inferior court captiously refuses to
hold a court at a time prescribed by law, and great injury would
result thereform, there being no other adequate specific remedy
afforded to the party aggrieved, except a writ of mandamus, such
writ should be issued by the Supreme court, if a proper
application be made by the aggrieved party, at the proper time.
(Ex parte Trapnall, 1 Eng. (Ark.) Rep., 9.)
But where, by law, it is required that bills of exception
shall be taken andtendered to the judge for his signature during
the progress of the trial, although he may sign them afterwards
nunc pro tunc; and a bill of exceptions appeared to have been
signed two years after the trial, it was held that they were
rightfully stricken from the record by the appellate court, and a
mandamus to the judge to sign the bill nunc pro tunc was properly
refused, especially as it did not appear that the exceptions were
taken during the trial. (Sheppard v. Wilson, 6 How. U.S. Rep.,
260.)
So where by law it is made the duty of an inferior court to
grant letters of administration to a party entitled thereto, a
mandamus will lie from a Superior court to compel it to do so. (8
East's Rep., 407.)
But where by act of the legislature, a special commission is
appointed, the duty of which is in its nature judicial, a
Superior court will not collaterally review the doings of the
commission, and hold as void the final determination made by it
in the exercise of its judgment, although its action was
strikingly injudicious; the same rule applying as in the case of
subordinate courts, special tribunals, and magistrates, that
their decisions can be reviewed only by certiorari, or writ of
error, if no other mode of appeal is given by the statute
creating such court. And where it is made the duty of certain
officers to carry out the judgment of such special commission,
and they refuse to do so on the ground that their action is
highly improper and injudicious, they may be compelled to act,
and carry out the judgment of the commission by mandamus,
notwithstanding the court issuing the mandamus was satisfied that
the special commission had thus acted injudiciously.
Therefore, where by law it is made the duty of the county
commissioners to lay out and establish highways, and when thus
established it became the duty of the commissioners of highways
to open and work them, the determination of such commissioners as
to the location of a road, is in its nature judicial, and if the
commissioners of highways refused to open and work the road, they
may be compelled to do so by mandamus. (The People v. Collins et
al., 19 Wend., 56.)
It has been held that a superior State court will not grant
a writ of mandamus to an inferior State court, to compel such
interior court to permit a cause pending there to be removed to a
Circuit court of the United States, giving as a reason that the
latter court has itself the power to award the writ to the State
court, when necessary to gain jurisdiction of the cause. (The
People v. The Judges, &c. 2 Denio Rep., 197.)
The contrary,however, seems to be the better doctrine. And
in the case of The State of Ohio v. The Court of Common Pleas of
Fairfield County, 15 O.S.R.,377, this question was presented and
distinctly decided. The relator had been sued in the court of
Common Pleas of Fairfield county, for the unlawful and malicious
assault, arrest, and imprisonment of one Edson B. Olds. The
relator, on entering his appearance in said court of Common
Pleas,filed his petition, under the provision of the act of
Congress, approved March 3d, 1863, entitled "An act relating to
habeas corpus, and regulating judicial proceedings in certain
cases," in which petition he averred that the alleged arrest,
imprisonment, &c., was during the rebellion, and was done by
virtue of, and under color of authority derived from the
Secretary of War, and the President of the United States, and
praying that the cause might be removed for trial to the Circuit
court of the United States to be held in the southern district of
the State of Ohio.
The court of Common Pleas disallowed the prayer for removal,
whereupon the relator moved in the Supreme court for a writ of
mandamus to compel the court of common pleas "to accept the
surety and proceed no further in the case." The allowance of the
writ was resisted, among other things, on the grounds that the
Federal court, and not the State court, had the power to issue
it.
The court says: "It is objected in the second place, that
the United States Circuit court, and not this court, is the
proper tribunal to issue the writ of mandamus. It is unnecessary
to decide whether the Circuit court has that power. If it has, it
does not follow that this court has not, or that we should not
exercise the power. I know of no good reason, either on grounds
of convenience, comity, or State policy, if the jurisdiction is
concurrent, as we suppose it is, why it should be refused by the
State court, and left to the exclusive action of the Federal
court. The power of this court would seem to be undeniable, from
the plain reading of the law referred to. The act sought to be
compelled is "an act which the law enjoins as a duty resulting
from office." True, the law enjoining the act is an act of
Congress, and not a statute of Ohio; but it is nevertheless, if
constitutional, a law of Ohio. Nay, if there is any conflict, the
State law must yield; for, by express constitutional provision,
the Constitution of the United States, and the laws made in
purusance of it, are the supreme law of the land, any thing in
the laws of the State to the contrary notwithstanding. "If then,
this law of Congress - or rather the fifth section of the law,
which contains all the provisions reflecting upon the case in
hand - is constitutional, and if the relator has conformed his
case to its provisions, we have no discretion but to allow the
writ, or disregard a plain duty enjoined by law." (But see 7 O.S.
Rep., 451.) Whether a United States court grant a mandamus to a
State court, to compel such State court to permit a cause pending
in such State court to be removed to a Circuit court of the
United States, when necesary to gain jurisdiction of such cause,
is a question which has not yet been authoritatively settled;
although from the two decisions last cited, as well as the
practice in sundry cases not reported, it would seem that the
Circuit court of the United States would, at least, have
concurrent jurisdiction with the State courts, to compel such
removal. (Post, .)
A mandamus will lie to compel the justices and the jury,
summoned to assess damages for taking land for public use, to
make return of their action in the premises; and if the justices
have voluntarily parted with the verdict, they are still bound to
recover possession of it, and complete their duty. (In the matter
of the Trustees of Williamsburgh, 1 Barb., 34.)
And where it is the duty of referees, appointed by a county
judge, to hear and determine an appeal from an order of
commissioners of highways, laying out a highway - to proceed to
hear the proofs and allegations of the parties, and to make and
file their decisions in writing, affirming, reversing, or
modifying the order appealed from, they have no power to dismiss
the appeal, and refuse to proceed further, upon the ground that
the order of the county judge was improvidently, or irregularly
granted, or that the appellant had no right to bring an appeal.
And if the referees, instead of hearing and determining the
appeal, dismiss the same, upon a preliminary objection, and thus
in effect refuse to execute the trust committed to them, the
remedy of the party is by mandamus, to compel the referees to
proceed. (The People v. Cortelyou et al., 36 Barb., 164.)
So, a mandamus may be issued to an inferior court,
compelling it to receive, and record a verdict; yet, if the
proceedings be so irregular as to make the verdict a mere
nullity, it should not be granted. (Meacham v. Austin et al., 5
Day's (Conn.) Rep., 233.)
But, as has before been said, a superior court will never by
mandamus interpose to disturb the solemn judgment of an inferior
court. Therefore, where it was sought to compel a District judge
to issue a warrant to arrest an alleged deserter from the French
naval service, under a treaty stipulation, it was the clear and
unanimous decision of the court, that the District judge having
acted judicially in deciding that the evidence was not sufficient
to authorize his issuing a warrant, the Supreme court, however it
might differ in opinion from the judge as to the sufficiency of
the proof, had no power to compel him to decide according to the
dictates of any judgment but his own. (United States v. Lawrence,
2 Dallas, 42.)
And in the case of ex parte Hoyt, 13 Peters' Rep., 279, the
District judge for the southern district of New York had decided
that the custody of goods, wares and merchandise, proceeded
against, after a seizure by the collector of the port of New
York, was in the marshal of the district, after process had
issued by order of the court against the goods. A motion was made
in the Supreme court of the United States for a mandamus to the
District judge, to compel him to vacate the order made on this
decision. The court held that a mandamus would not lie; Mr.
Justice Story, delivering the opinion of the court, after
remarking that the court had authority given to it by statute to
issue writs of mandamus in cases warranted by the principles and
usages of law, said: "The present application is not warranted by
any such principles and usages of law. It is neither more nor
less, than an application for an order to review the solemn
judgment of the District judge, in a matter clearly within the
jurisdiction of the court, and to substitute another judgment in
its stead. Now a writ of mandamus is not a proper process to
correct an erroneous judgment or decree rendered in an inferior
court. That is properly a matter which is examinable upon a writ
of error, or an appeal, (as the case may require,) to the proper
appellate tribunal. Neither can this court issue the writ upon
the ground that it is necessary for the exercise of itsown
appellate jurisdiction; for the proper appellate jurisdiction, if
any in this case, is direct and immedate to the Circuit court for
the southern district of New York. It has been repeatedly
declared by this court,that it will not by mandamus direct a
judge what judgment to enter in a suit; but only will require him
to proceed to render judgment."
In the case of ex parte Whitney, 13 Peters' Rep., 404, the
same doctrine was maintained. In that case, the judge of the
District court of the United States for the eastern district of
Louisiana, had, among other things, ordered that all the future
proceedings in the case, which was then pending in that court,
should be in conformity with the then existing practice of the
District court, which practice was understood to mean the
practice prevailing in the court in civil cases generally, in
disregard of the rules established by the Supreme court, to be
observed in chancery cases.
A motion was made in the Supreme court for amandamus in the
nature of a procedendo, to compel the court to proceed according
to chancery practice.
Mr. Justice Story, in delivering the opinion of the court
said: "That it is the duty of the Circuit court to proceed in
this suit according to the rules prescribed by the Supreme court,
for proceedings in equity cases at the February term thereof,
A.D.1822, can admit of no doubt. That the proceedings of the
District judge, and the orders made by him in the cause, which
are complained of, are not in conformity with these rules, and
with chancery practice can admit of as little doubt. But the
question before us is not as to the regularity and propriety of
those proceedings, but whether the case before us is one in which
a mandamus ought to issue. And we are of opinion that it is not
such a case. The District judge is proceeding in the cause,
however irregular that proceeding may be deemed; and the
appropriate redress, if any, is to be obtained by an appeal after
the final decree shall be had in the case. A writ of mandamus is
not the appropriate remedy for any orders which may be made in a
cause by a judge in the exercise of his authority; although they
may seem to bear harshly or oppressively upon the party. The
remedy in such cases must be sought in some other form."
The same principle has been maintained in a number of other
cases. (Rex v. Justices of Wilts, 2 Chitty's R., 257; The King v.
The Justices of Cambridgeshire, 1 D&R., 325; Squire v. Gale, 1
Halst. (N.J.) Rep., 156; Gray v. Budge, 11 Pick Rep., 189.)
So, in Massachusetts, in the case of Chase v. Blackstone
Canal Co., 2 Pick, 244, the court say: "This writ lies either to
compel the performance of ministerial acts, or is addressed to
subordinate judiciaal tribunals, requiring them to exercise their
functons, and render some judgment in cases before them, when
otherwise there would be a failure of justice from delay, or
refusal to act. But where a subordinate tribunal has acted in a
judicial capacity, upon a question properly submitted to its
judgment, a mandamus will not be granted to compel it to reverse
its decision."
The law makes a distinction between the ministerial and
judicial dutiesof judicial tribunals. In the former case, the
particular duty imposed may be compelled; while in the latter
case, the judicial officer can only be compelled to proceed and
render some judgment. In the case of Griffith v. cochran, 5
Binney, 103. Tilgham, C.J., says: "The principle which governs
the courtsin issuing writs of mandamus, are well understood.
Where a ministerial act is to be done, and there is no other
specific remedy, a mandamus will be granted to dothe act which is
required. But where complaints are against a person who acts in a
judicial, or deliberative capacity, he may be ordered to mandamus
to proceed to do his duty, by deciding andacting according to the
best of his judgment; but the court will not direct him in what
manner to proceed. In New Jersey the same distinction was
recognized.
In Leving v. Inhabitants of Alloway's Creek, 5 Halst., 58, a
mandamus was refused on the ground that "to officers a writ of
mandamus may go to direct them how to proceed, and what to do;
but a mandamus to a court, only to direct them to proceed
according to law, and not how to proceed."
So, in Kentucky, in the case of The county court of Warren
v. Daniel, 2 Bibb., 573, it was decided that a mandamus is a
proper remedy to compel an inferior court to adjudicate upon a
subject within it s jurisdiction where it neglects or refuses to
do so; but where it has adjudicated, a mandamus will not lie for
the purpose of reviewing, or correcting its decision. And where a
ministerial duty devolves upon a judicial tribunal, and such
tribunal construes it to be a judicial duty, and proceeds to act
judicially in the matter, and gives judgment against the party
moving such performance,and refuses to perform the duty, a
mandamus lies to compel the performance. (Delaney v. Goddin, 12
Gratt., (Va.) 266.)
Therefore, when it is made the duty of a circuit judge to
appoint appraisers to assess damages under a statute relative to
rights of way, such appointment is a ministerial act, the
performace of which may be enforced by mandamus. (Illinois
Central Railway Company, 14 Ill. Rep., 353.)
So in the case of Arberry v. Bearers, 6 Texas, 457, it was
also maintained that the process of mandamus lies to compel
public officers andcourts of inferior jurisdiction to proceed to
do those acts which clearly appertain to their duty. If the act
be ministerial in its character, obedience to the law will be
enforced by mandamus, where no other legal remedy exists. But if
the act to be performed involves the exercise of judgment or
discretion, the Superior court cannot interfere to control or
govern that judgment.
And, therefore, where a statute required the Chief Justice
of a certain county to order an election for a certain purpose,
and directed that the election should be held, and the returns
made in accordance with the law of the State regulating
elections, it was held that the Chief Justice, in receiving and
estimating the returns, did not act in a merely ministerial
capacity; and that a mandamus would not lie to compel him to
receive and estimate certains returns which he had rejected.
So where by statute it was provided "that there shall be
erected, built, or otherwise provided by the court of
GeneralSessions ofthe Peace in every county within this
commonwealth, at the charge of the county, afit and convenient
house orhouses of correction, &c., it was held that the duty was
imperative and mandatory, and that there was no discretion given
to the Sessions upon the subject, except that they be allowed a
reasonable time to execute the duty; and as it appeared that more
than twelve years had elapsed, a mandamus wasgranted compelling
them to do their duty. (Commonwealth v. The Justices of Hampden,
2 Pick.REp., 414.)
So in the case of Ruel Morse, Petitioner, 18 Pick. Rep.,
443, the petitioner, being seized of certain land, over and
through which a certain railroad was laid out and constructed,
applied to the county commissioners to assess the damages
sustained by him thereby. The commissioners reportedthat the
company should construct and keep in repair a certain culvert,
and pay to the petitioner $500. The petitioner considering the
sum so assessed less than the amount he was entitled to receive,
made application to the commissioners for a jury to assess
damages. A jury was accordingly impanelled, who assessed the
damages at $600, which verdict was duly returned to the court of
Common Pleas and accepted by that court. The verdict and
adjudication of that court were certified to the commissioners,
and it was thereupon considered by them that the petitioner
should recover of the railroad company the said sum of $600,
without costs, on the ground that the assessment by the jury was
not greater than the amount assessed by the commissioners.
Thereupon the petitioner presented his petition to the Supreme
court, praying for a rule on the commissioners to show cause why
a writ of mandamus should not issue, commanding them to render
judgment in the premises for the petitioner for the sum of $600,
and for his costs. The court held that the awarding, or refusing
costs was a judicial power for the commissioners to exercise
according to their judgment ofthe merits; and also recognized the
rule that a judicialtribunalmay exerciseministerial functions,
and in all such cases a mandamus will be granted when there is
no other proper and adequate remedy. The court said: "Cases may
be supposed in which such a remedy," (meaning mandamus to a
judicial tribunal,) "would be proper and warranted by analogy.
Some instances are mentioned in the case cited, as where a
judicial tribunal declines taking cognizance of a case within its
proper jurisdiciton. So if a court having rendered a proper
judgment, should refuse issuing an execution. And so where a
judicial tribunal, having found all the facts necessary to a
judgment, so that the judgment would be nothing but a conclusion
of law upon those facts, the entering up of the proper judgment
maybe regarded as in its nature ministerial, and in the absence
of any other remedy may be a proper subject for a mandamus."
And where, by legislative enactment, it was provided that
the sufficiency of the affidavit to hold to bail, and the amount
of bail to be given, should, upon application of the defendant,
be decidedby t he court in term time, and by a single judge in
vacation, the power of the court of thus deciding was held to be
a judicial power; and when it has been exercised and a judgment
passed, a Superior court cannot by mandamus command such inferior
court to reverse its decition. (Ex parte Taylor,14 How., (U.S.)
Rep., 3.)
But where, by law, it was the duty of the county
commissioners to adjuge on the question of damages, and if they
found that the petitioner had sustained no damage, and he was
dissatisfied and requested it, to issue awarrant for a jury to
enable the petitioner to have their judgment revised in due
course of law, it was held that the issuing of the warrant, on
the application of the petitioner, was a ministerial duty, and
therefore a duty on the commissioners could be compelled to
perform by mandamus. (Carpenter v. County Commissioners, 21
Pick., 287.)
And where a complaint was made before justices against one
for keeping an illegal lottery, and it was alleged that the facts
proved brought him within the statute, and rendered him liable to
be punished as a rogue and vagabond; but the magistrate thought,
erroneously as it was suggested, that the provision as to such
punishment was repealed, and that no punishment then existed for
the offense, it was held that however erroneous the decision of
the magistrate might be, the court above could not review it on
mandamus. (Regina v. The Justices of Bristol, 28 Eng. Law & Eq.
Rep., 160.)
In general every court must be the sole judge whether a
contempt has been committed against it or not; and this exercise
of its judgment is not liable to be controlled by the
interposition of the writ of mandamus.
But if the civil rights of an individual become implicated,
this remedy may be pursued. Therefore upon a motion for a
mandamus to the justices of the general sessions of the peace of
the county of Oneida, commanding them to attach and punish John
Garter for non-attendance in that court as a witness; Chamberlain
had been indicted for an assault and battery, which was tried at
the February term of that court, 1825; he subpoenaed Garter to
attend as a witness in his behalf; he neglected to appear and was
attached; but was discharged by the court upon his answering to
the interrogatories that no fees had been tendered to him. The
court in which the motion for a mandamus was made, said they had
looked into this subject and thought the distinction lay between
misdemeanor and felony; that in the former case the defendant
must tender his witnesses their fees, as in civil cases; but that
in prosecutions for felonies they were compelled to attend
without fees. They should have denied this motion at once, on the
ground that it sought for a mandamus to compel an inferior court
to punish for contempt, had the matter rested there; for every
court must be the sole judge whether a contempt has been
committed against it or not; but as the private rights of an
individual were also implicated, the had for that reason looked
into the merits. (Ex parte Chamberlain, 4 Coowen, 49.) And a
Superior court will not grant a mandamus commanding the judges of
an inferior court to do an act which may render them liable to an
action; and under this principle a writ was refused to compel a
magistrate to enforce a conviction when it was doubtful whether
such conviction was good in consequence of the evidence not
having been stated. (Rex v. Broderip, 5 B.&C., 239, 7 D.&R.,
861.) Nor will it be granted when it may make costs for which
there are no means provided for reimbursement. (In re Lodge, 2
A.&E., 123.) Neither will a mandamus be granted to compel a
magistrate to enforce a conviction for the plaintiff, where he
had returned that the defendant was convicted of the penalty
before him, and that the conviction was invalid in law. (Rex v.
Robinson, 2 Smith, 274.)
Where a discretion is vested in any inferior court, and such
court has exercised it, a Superior court cannot control such
discretion by writ of mandamus. The writ whendirected to an
inferior tribunal, is a writ which seeks to compel action; it
does not, however, point out to that court how it shall act in a
matter over which it has discretionary power. (Lamar v. Marshall,
21 Ala., 772.)
A mandamus was therefore refused when asked for to be
directed to an inferior court to compel it to discharge a rule of
reference, as that was in the discretion of the inferior court.
(Ferris v. Munn, 2 New Jer., 161.)
So where an information was filed by the District Attorney,
on behalf of the United States, against certain cases of cloth,
seized as forfeited to the United States, upon the ground that
the invoices under which the same were imported, were mady by a
false valuation, extension, or otherwise, to defraud the United
States, and on aninquest by default in the cause, the cloths were
condemned as forfeited to the United States; and where upon the
refusal of the District court to set aside the default, a motion
for a mandamus was made inthe Supreme court, it was held that the
application to set aside the default and inquest, was an
application to the discretion ofthe District court, and therefore
a mandamus would not lie to control the discretion of the court.
(Ex parte Roberts v. Adshead, 6 Peters' Rep., 216.)
So where a motion was made for mandamus to the judge of the
District court of the United States, for the southern district of
New York, "commanding him to restore to the record of the cause
the plea of tender, filed in the cause by the defendant, and to
proceed to trial, and judge thereupon according to law; andto
vacate all rules and orders entered in thesaid court setting
aside such plea as a nullity. The court held that the allowance
of double pleas and defenses is a matter not of absolute right,
but of discretion in the court, and as the courts constantly
exercise a control over this privilege, and will disallow
incompatible and sham pleas, no mandamus will lie to the court
for the exercise of its authority in such cases, it being a
matter of sound discretio, exclusively appertaining to its own
practice. And as the record in the cse furnished no positive
means of information that the court did not order the plea to be
struck from the record on that ground, the mandamus was refused.
If, however, the record should show that a good plea had
been ordered to be struck off for the reason that it was held to
be a nullity, whether mandamus would lie was a question not
decided; but it was strongly intimated that it would. (Ex parte
Davenport, 6 Peters' Rep., 661.)
So in the case of Gray v. Bridge, 11 Pick. Rep., 189, where
the court below had granted a new trial on the ground of certain
newly discovered evidence, which evidence, it was contended, on
the part of the petitioner, was not competent evidence, and for
that reason prayed for a writ of mandamus to the court below to
vacate the rule granting a new trial; Wilde, J., in delivering
the opinion of the court said: "But in deciding this case, it is
not necessary to consider the question as to the competency of
the evidence, because we think it very clear that the court of
Common Pleas had a discretionary power to grant a new trial if
the justice of the case, in their opinion required it, and we
ought not to attempt to control or coerce the discretion ofthe
court. That the granting of a new trial, like the granting of a
continuance, or taking of a default, rests in the discretion of
the court, is fully established by all the authorities."
So in the case of ex parte Baily, 2 Cowen, 479, a motion was
made for a mandamus to the judges of the court of Common Pleas,
commanding them to grant a new trial in a cause of that court
between Baily, plaintiff, and one Stocker, defendant. The court,
in deciding the case said: "As to the remedy by mandamus, it may
be proper to remark, that though in extreme cases we might
interfere and control the court below upon questions of fact,
presented in the form of a motion for a new trial, yet it is a
remedy which should be used very sparingly. A contrary course
would draw before this court, whenever one of the parties should
be dissatisfied with the decision of the Common Pleas, an
examination of those questions which address themselves merely to
the discretion of the court. We should be perpetually appealed to
for the adjustment of rights undefined by law. This would result
in an endlesss conflict of opinion upon questions which must,
from their very nature, be finally determined by the courts
below, because they cannot be reached by the rules of law; and
although we may think the inferior jurisdiciton has erred, yet we
will not interfere. It is true, that extreme cases may be
supposed, which would form an exception to this doctrine. Where
an action is brought on a promissory note, the execution of which
is proved beyond all doubt, and yet the jury find against it,
should the court below refuse a new trial, we might interfere;
but it would be improper to do this in ordinary cases. Even where
a verdict is plainly against law, yet the court may, many times,
properly deny a new trial; as if the controversy be very trifling
in its nature, or contemptible in amount."
The case of ex parte Caykendoll,6 Cowen Rep., 52, seems to
be one of those extreme cases which are exceptionsto the general
rule. In that case the court of Common Pleas had granted a new
trial on the affidavit of three of the jurors, setting forth that
they had made a mistake in their calculations in determining the
amount of their verdict. A motion was thereupon made in the
Supreme court for a mandamus to the judges of the Common Pleas
commanding them to vacate the rule granting a new trial, and to
give judgment on the verdict. The mandamus was granted on the
ground that the judges of the Common Pleas erred in receiving the
affidavits of jurors for the purpose of impeaching their verdict.
The setting aside of a judgment by default, is also a matter
within the discretion of the court in which the judgment is
rendered, and will not be disturbed by a proceeding in mandamus.
In ex parte Bacon & Lyon. 6 Cowen Rep., 392, the court of
Common Pleas had set aside a regular judgment by default, against
the defendant, in a cause in which the relators were plaintiffs,
on the ground of merits, on payment of costs. A motion was
thereupon made in the Supreme court for a mandamus, commanding
the Common Pleas to vacate that rule.
The court say: "The Common Pleas must be their own judges,
upon the circumstances before them, whether they will set aside a
default upon the merits. This is so much a matter of discretion
that we will not interfere by mandamus. The granting or refusal
of such an application is governed by no fixed principles. No
positive rule of law has been violated by the court below; nor
can we fix bounds to their discretion upon this subject."
So, in the case of ex parte Benson, 7 Cowen, 363, which was
on a motion for a mandamus to the judges of the court of Common
Pleas, commanding them to set aside a rule to quash an appeal,
taken by default against the relator, on motion of Brace and
others, appellees. The motion was noticed for the December term
of the Common Pleas, 1826; and the hearing postponed to the next
term, March, 1827. At this term, the relator's attorney was in
Albany attending the Supreme court; and the postponement entirely
escaped his recollection. On these facts, he moved the Common
Pleas to vacate the rule, and hear the motion on its merits; but
the motion was overruled.
The court, in giving its decision upon the motion, say:
"Whether the Common Pleas would open the rule or not, upon the
facts disclosed, rested entirely in their discretion; with which
we have nothing to do. The question is not, whether we would have
listened to the application, in a like case upon our rules of
practice. The court below have their own rules; and so far as
they rest in discretion and violate no rule of law, we uniformly
refuse to interfere with them."
Mandamus does not lie from a superior court to correct the
errors of an inferior court, if such errors can be redressed on
appeal, or on proceeding in error. In the case of The Bank of
Columbia v. Sweeney, 1 Peters' Rep., 569, an application for a
mandamus was made, to compel a Circuit court to withdraw an issue
ordered by it to be made, and to direct a different issue to be
made up, according to what the counsel for the relator supposed
to be the proper construction of the statute. The motion was
denied on the ground that the case did not differ in principle
from any other case in which the party should plead a defective
plea, and the plaintiff should demur to it; in which case it was
said there was no doubt that the revising power of the court
could be exercised only by a writ of error. The same principle
has been applied in many other cases. (Blecker v. St. Louis Law
Commissioners, 30 Miss., 449. State v. Judge of Kenosha county, 3
Wis., 809. Ex parte Williamson, 3 Eng. (Ark.) 424. State v.
Mitchell, Const. Rep., 703. Smyth v. Titcomb, 31 Maine, 272.)
And a mandamus will not be granted to command an inferior
tribunal to do that which it could not legally do without such
mandate. (The State v. The Judge, 15 Ala. Rep. 740.)
Neither will it lie to compel any officer to do an act
which, without its command, it would not be lawful for him to do.
(Johnson v. Lucas, 11 Humph., 306.)
Nor will it be allowed, where, if granted, it would be
unavailing to accomplish the object sought.
CHAPTER IV:
MANDAMUS TO SHERIFF
The general rule, that a public officer can be compelled, by
mandamus, to perform a duty enjoined by law, is applicable to the
office of sheriff.
Therefore, where by law it is made the duty of the sheriff
to keep his office at the county seat, mandamus is a proper
remedy to compel him to do so. (State v. Saxton, 11 Wis., 27.)
So, too, it has been held that mandamus lies where it is the
only means of putting the plaintiff in possession of property
which he is entitled to possess under a decree; and that although
he has a civil action against the sheriff, or a criminal
prosecution against him if he refuses to execute the writ, yet
mandmaus lies to compel the sheriff to execute it.(Fremont v.
Crippen, 10 Cal. Rep., 211.)
And where a writ of attachment was placed in the hands of a
sheriff, who served it by taking the property into his possession
and leaving a copy with the defendant; and while this writ was in
the hands of the officer unreturned, the plaintiff in the action
discovered that his claim, which was the subject of the suit, was
not due, and directed the sheriff to erase his indorsement of
service on the writ, and with that write, without other
alteration, attach the same property after the claim had become
due, which the sheriff accordingly did it was held that if the
rights of the defendant in attachment had been essentially
affected by the act of the officer, in erasing his first
indorsement of service, he might be compelled to restore it, by
writ of mandamus, so that the whole of his proceedings under the
writ of attachment should appear upon the writ itself. (Ward v.
Curtiss, 18 Conn., 290.)
So, when a jailer refuses to deliver up the body of a
person who has died while a prisoner in his custody, to the
executor of the deceased, a mandamus has been held to lie, to
compel him to do so.(Reg. v. Fox, 2 Ad.& E., N.S., 247.)
But it must also be borne in mind, that to entitle a party
to a writ of mandamus, it must be made to appear that he has a
legal right to have something done by the party to whom he seeks
to have the writ directed, and that he has no specific legal
remedy, to which he can resort to compel the performance of his
duty. And that, therefore, although the law may impose a duty
upon the sheriff, which he neglects or refuses to perform, yet if
the party applying for the writ has any other adequate means of
redress, the writ will not be allowed. And, in the case of The
State v. Lawson, 14 Ark. Rep., it is left in doubt whether a writ
of mandamus is the appropriate remedy to compel a sheriff to
acknowlege a deed to the purchaser of lands at a judicial sale.
In the case of The People v. Ransom, 2 Comstock, 490, it was
however substantially held, that mandamus would lie to compel a
sheriff to execute a deed of conveyance to a purchaser of lands
on execution. But in such case, as the alternative writ is in the
nature of a declaration, it should set forth a good and
substantial right to have the title. A like doctrine was
maintained in Van Rensselaer v. Sheriff, 1 Cowen's Rep.,501.
CHAPTER V:
MANDAMUS TO CLERK OF COURT
Mandamus is the appropriateremedy to compel the clerk of a
court to performa ministerial duty imposed upon him by law, in
all those cases, where the relator, whose rights are injuriously
affected by the non-performace of the duty, has no other specific
and adequate remedy.
It has therefore been held that the writ will lie to compel
a clerk of the court to deliver the transcript on a writ of
error, or appeal, if he illegally refuses to do so. (Davis v.
Carter, 18 Texas, 400.)
But it will in no case be allowed against the clerk, unless
it is clearly the legal duty of such officer to perform the act,
and the party asking it has a clear right to its performance, and
has no other adequate and specific remedy. (Draper v. Noteware, 7
Cal. Rep., 276. Williams v. Judge of Cooper county, 27 Miss. (6
Jones) Rep., 225. State v. Jacobs, 2 Dutch., (N.J.) 135. Morgan
v. Monmouth, Plankroad Co., 2 Dutch., (N.J.) 99. Commonwealth v.
Supervisors of Colley Township, 29 Penn. State Rep.,121.)
Neither can the discretionary powers of the clerk be
controlled by mandamus. But where, among the official duties of a
clerk, is that of approving and filing the bond of a sheriff, or
other officer, he has no discretion other than to determine
whether the security offered is sufficient; in all other
respects, he acts in the matter as a mere ministerial officer.
And if he withholds his approval of the bond, on any other
grounds than the sufficiency of the security, he may be compelled
by mandamus to approve and file the bond. But should his refusal
rest on the ground of such sufficiency, his discretion in the
matter cannot, in that manner, be controlled. (14 Ind. Rep., 93.)
But where the party has another adequate and specific remedy
against the clerk, mandamus will not lie. It has therefore been
held, that if the clerk of the court refuse to issue execution on
a money judgment, the plaintiff has a perfect remedy on the
clerk's bond, and therefore cannot have a writ of mandamus. (10
Cal. Rep., 333. But see 22 Barb., 502.)
And where the election laws of a State direct the clerk of
the court of Common Pleas, with two justices of the peace called
to his assistance, to open and make abstracts of the several
returns which shall have been made to his office, and also
providing that in making such abstracts of votes, the justices
and clerk shall not decide on the validity of the returns, but
shall be governed by the number of votes stated in the poll-
books; and the clerk and justices thus opening the returns,
rejected, in good faith, a part of said returns, as illegal, and
refused to incorporate them into the abstract exhibiting the
result of the election, and thereupon declared one M. duly
elected sheriff of said county, in conformity with the result of
the abstract thus made, and gave him a certificate of election,
where, if the votes rejected had been counted, the election for
sheriff would have resulted in favor of I.; and he thereupon
appealed to the court of Common Pleas to contest the election of
M., and also caused an alternative writ of mandamus to issue out
of the Supreme court, commanding the said clerk to immediately
call to his assistance two justices of the peace of the county,
to open and count the votes thus rejected, and deliver to him a
proper certificate of his election to said office of sheriff, or
to show cause why he refuses to do so; it was held by the court
on hearing, that as the legislature had provided by statute that
the correction of all errors, frauds and mistakes which might
occur in the process of ascertaining and declaring the true
expression of the public will, should be by appeal to the court
of Common Pleas; and that the necessary steps for such appeal had
already been taken, mandamus was not an appropriate remedy, and
the peremptory writ was refused. One of the reasons given by the
court for the refusal of the writ, was that the legislature had
provided a plain and adequate remedy, and doubtless intended it
as the specific and sole remedy, for errors in the counting and
abstracting of the votes returned. (Ingerson v. Berry, 14 O.S.R.,
316.)
CHAPTER VI:
MANDAMUS TO THE SECRETARY OF STATE
Where the heads of departments are the political or
confidential agents of the executive, merely to execute the will
of the President in cases where the executive possesses a
constitutional or legal discretion, nothing can be more perfectly
clear than that their acts are only politically examinable. But
where a specific ministerial duty is assinged by law, and
individual rights depend upon the performance of that duty, it
seems equally clear that the individual who considers himself
injured, has a right to resort to the laws of his county for a
remedy, and that mandamus is a proper remedy.
Therefore, on motion for a mandamus, supported by affidavits
showing that the appellant was, by the President of the United
States, nominated to the Senate for their advice and consent to
be appointed a justice of the peace of the District of Columbia;
that the Senate advised and consented to the appointment; that a
commission in due form was signed by the said President,
appointing him a justice of the peace as aforesaid, and that the
seal of the United States was in due form affixed to the said
commission by the Secretary of State, that the applicant had
requested the defendant, Secretary of State, to deliver said
commission to him, who had not complied with such request, but
had withheld the same, it was held that it was a plain case for a
mandamus, either to deliver the commission, or a copy of it from
the records. (Marbury v. Madison, 1 Cranch's Rep., 137.)
And so where, by act of Congress authorizing the sale public
lands, it is provided that the purchaser, on paying his purchase
money, becomes completely entitled to the property purchased; and
on producing to the Secretary of State the receipt of the
treasurer, upon a certificate required by the law, the President
of the United States is authorized to grant him a patent; and it
is further enacted that all patents shall be countersigned by the
Secretary of State, and recorded in his office; if the Secretary
of State should choose to withhold this patent, or the patent
being lost, should refuse a copy of it, mandamus, no doubt, would
lie to compel him to do it.
It was also held, in the same case, that "It is not by the
office of the person to whom the writ is directed, but the nature
of the thing to be done, that the propriety or impropriety of
issuing a mandamus is to be determined. Where the head of a
department acts in a case in which executive discretion is to be
exercised, in which he is the mere organ of executive will, it is
again repeated that any application to a court to control, in any
respect, his conduct, would be rejected without hesitation. But
where he is directed, by law, to do a certain act affecting the
absolute rights of individuals, in the performance of which he is
not placed under the particular direction of the President, and
the performance of which the President cannot lawfully forbid,
and therefore is never presumed to have forbidden; as for
example, to record a commission, or a patent for land, which has
received all the legal solemnities; or to give a copy of such
record; in such cases, it is not perceived on what ground the
courts of the country are further excused from the duty of giving
judgment, that right be done to an injured individual, than if
the same services, were to be performed by a person not the head
of a department."
The doctrine that mandamus lies, on the application of a
private individual, and for his benefit, to compel the head of a
department to perform a mere ministerial duty, where that duty is
plain, seems to have been fully maintained in the case of The
Commissioners of Land Office v. Smith, 5 Texas, 471.
CHAPTER VII:
MANDAMUS TO THE SECRETARY OF WAR AND NAVY.
The Secretary of War may also be compelled by mandamus to
perform a ministerial act.
Therefore, where by law it is provided that the Secretary of
War shall place on a pension list all persons whose names are
contained in a report previously made by him to Congress, if he
should refuse to do so, mandamus would lie.
But a distinction is made between the ministerial acts of
one of the heads of department, and those duties required in the
ordinary discharge of official duties, over which the officer is
required to exercise judgment and discretion. While the former
can be compelled by mandamus, the latter cannot.
Therefore, where by an act of Congress, passed on the 3d of
March, 1837, the widow of any officer who died in the naval
service, became entitled to receive out of the navy pension fund
half the monthly pay to which the deceased officer would have
been entitled, under the acts regulating the pay of the navy, in
force on the 1st day of January, 1835; the half pay to commence
from the time of the death of such officer; and upon the death or
intermarriage of such widow to go to the child or children of the
officer. And on the same day a resolution was passed by Congress,
providing: That Mrs. Susan Decatur, widow of the late Commodore
Stephen Decatur, be paid from the navy pension fund, a pension
for five years, commencing from the thirtieth day of June,
eighteen hundred and thirty-four; and that she be allowed, from
said fund, the arrearages of the half pay of a post captain, from
the death of Commodore Decatur, to the thirtieth of June,
eighteen hundred and thirty-four, together with the pension
hereby allowed her; and that the arrearage of said pension be
vested in the Secretary of the Treasury, in trust for the use of
the said Susan Decatur; provided that the said pension shall
cease on the death or marriage of the said Susan Decatur.
By the act of Congress of July 10th, 1832, the Secretary of
the Navy is constituted the trustee of the navy pension fund; and
as such, it was made his duty to grant and pay the pensions,
according to the terms of the acts of Congress.
After the passage of the law and resolution of March 3d,
1837, Mrs. Susan Decatur, the widow of Commodore Decatur, applied
to MahlonDickerson, then Secretary of the navy, to be allowed the
half pay to which she was entitled under the general law above
mentioned; and also the pension andarrearages of half pay
specially provided for her by the resolution passed on the same
day.
The Secretary of the Navy doubted whether she was entitled
to both, and referred the matter to the Attorney General; who
gave it as his opinion that Mrs. Decatur was not entitled to
both, but that she might take under either, at her election. The
Secretary thereupon informed her ofthe opinion of the Attorney
General, offering at the same time to pay her under the law, or
the resolution, as she might prefer. She elected to receive under
the law; but it was admitted that she did not acquiesce in this
decision, but protested against it; and by consenting to receive
the amount paid her, she did not mean to waive any right she
might have to the residue.
Sometime afterwards Mr. Dickerson retired from the office of
Secretary of the Navy, and was succeeded by the defendant; and,
in the fall of 1838, Mrs. Decatur applied to him to revise the
decision of his predecessor, and to allow her the pension
provided by the resolution. The Secretary declined doingso; where
upon Mrs. Decatur applied to the Circuit court for Washington
county, in the District of Columbia, for a mandamus to compel him
to pay this amount she supposed to be due her. A rule to show
cause was granted by the court; and upon a return made by him,
stating among other things the facts mentioned above, the court
refused the application for a peremptory mandamus. This decision
the Supreme court was called upon to reverse; and in deciding the
case, the court syas:"In the case of Kendall v. The United
States, 12 Peters, 524, it was decided in this court, that the
Circuit court for Washington county in the District of Columbia,
has the power to issue a mandamus to an officer of the federal
government commanding him to do a ministerial act. The first
question, therefore, to be considered in this caseis, whether the
duty imposed upon the Secretary of Navy, by the resolution in
favor of Mrs. Decatur, was a mere ministerial act.
"The duty required by the resolution was to be performed by
him as head of one of the executive departments of the
government, in the ordinary discharge of his official duties. In
general, such duties, whether imposed by act of Congress or by
resolution, are not mere ministerial duties."
"The head of an executive department of the government, in
the administration of the various and important concerns of his
office, is continually required to exercise judgment and
discretion. He must exercise his judgment, in expounding the law
and resolutions of Congress, under which he is from time to time
required to act. If he doubts, he has a right to call on the
Attorney General to assist him with his counsel; and it would be
difficult to imagine why a legal adviser was provided by law for
the heads of departments, as well as for the President, unless
their duties were regarded as executive, in which judgment and
discretion were to be exercised. If a suit should come before the
court, which involved the construction of any of these laws, the
court certainly would not be bound to adopt the construction
given by the head of a department. And if they supposedhis
decision to be wrong, they would, of course, so pronounce their
judgment. But their judgment upon the construction of the a law
must be given in a case in which they have jurisdiction and in
which it is their duty to interpret the act of Congress, in order
to ascertain the rights of the parties in the cause before them.
The court could not entertain an appeal from the decision
ofoneofthe Secretaries, nor revise hisjudgment in any case where
the law authorized him to exercise discretion or judgment. Nor
can it by mandamus, act directly upon the officer, and guide and
control hisjudgment or discretion in the matters committed to his
care in the ordinary discharge of this official duties."
"The case before us illustrates these principles, and shows
the difference between executive duties and ministerial acts. The
claim of Mrs. Decatur having been acted upon by his predecessor
in office, the Secretary was obliged to determine whether it was
proper to revise that decision. If hehad determinedto revise it,
hemust have exercised his judgment upon the construction of the
law, and the resolution, and have made up his mind whether she
was entitled under one only, or under both. And if he determined
that she was entitled under the resolution as well as the law, he
must then have again exercised hisjudgment, in deciding whether
the half pay allowed her was to be calculated by the pay proper,
or the pay and emoluments of an officer of the Commodore's rank."
"And after all this was done, he must have inquired into the
condition of the navy pension fund, and the claims upon it, in
order to ascertain, whether there was money enough, how it wasto
be approtioned among the parties entitled. A resolution of
Congress requiring the exercise of somuch judgment and
investigation, can, with no propriety, be said to command a mere
ministerial act to be done by the Secretary. The interference of
the courts with the performance of the ordinary duties of the
executive departments of the government, would be productive of
nothing but mischief; and we are quite satisfied that such a
power was never intended to be given to them. * * * We are,
therefore, of opinion that the Circuit court were not authorized
by law to issue the mandamus, and committed no error in refusing
it." (Decatur v. Paulding, 14 Peters' Rep., 497.)"
"And where the plaintiff made application for a mandamus
against the defendent, the Secretary of the Navy, to compel the
payment or arrearages of pay due him from the government as a
commander in the navy of the United States, it was held by the
court that if the plaintiff had made out a title to his pay, as
an officer of the United States navy, a mandamus would not lie to
enforce the payment."
"Mr. Justice Nelson, in delivering the opinion of the court,
said: "Besides the duty of inquiring into and ascertaining the
rate of compensation that may be due to the officers under the
law of Congress, no payment can be made unless there has been an
appropriation for the purpose. And if made, it may have been
already exhausted, or prior requisitions may have been issued
sufficient to exhaust it. The Secretary is obliged to inquire
into the condition of the fund, and the claims already charged
upon it, in order to ascertain if there is money enough to pay
all the accruing demands, and if not enough, how it shall be
apportioned among the parties entitled to it."
"These are important duties, calling for the exercise of
judgment and discretion on the part of the officer, andin which
the general creditors of the government, to the payment of whose
demands the particular fund is applicable, are interested, as
well as the government itself. For these reasons we think the
writ of mandamus would not lie in the case." (Brashear v. Mason,
6 Howard's (U.S.) Rep., 92.)
CHAPTER VIII:
MANDAMUS TO THE POSTMASTER GENERAL
It seems that the judiciary cannot direct or control the
Postmaster General, in the discharge of any official duty,
requiring the exercise of judgment or discretion; but the
performance of a mere ministerial act, which he nor the President
has any authority to deny, or control, may be enforced by
mandamus.
Therefore, where the applicaton for a mandamus set out
certain contracts made between the relators and the late
Postmaster General, upon which they claimed certain credits, and
allowances upon their contracts for the transportation of the
mail. That credits and allowances were duly made by the late
Postmaster General. That the present Postmaster General, when he
came into office, re-examined the contracts entered into with his
predecessor, and the allowances made by him, and the credits and
payments which had been made; and directed that the allowances
and credits should be withdrawn, and the relators recharged with
divers payments they had received. That the relators presented a
memorial to Congress on the subject, upon which a law was passed
for their relief; by which the solicitor of the treasury was
authorized and directed to settle and adjust the claims of the
relators for extra services performed by them; to inquire into
and determine the equity of such claims; andto makethe relators
such allowances t hereof, as upon full examinationof all the
evidence may seem right, according to the principles of equity.
And that the Postmaster General be, and he is hereby directed to
credit the relators withwhatever sum or sums of money, if any,
the solicitor shall so decide to be due to them, for and on
account of any such service or contract.
It further set out, that the solicitor assumed upon himself
the performance of the duty and authority created and conferred
upon him by law, and did make out and communicate his decision
and award to the Postmaster General; by which award and decision,
the relators were allowed $161,563.89. That the Postmaster
General on being notified of the award, only so far obeyed and
carried into execution the act of Congress, as to direct, and
cause to be carried to the credit of the relators, the sum of
$122,102.46. But that he has, and still does refuseand neglect to
credit the relators with the residue ofthe sum so awarded by
thesolicitor, amounting to $39,462.43. And the petitioner prayed
the court, to award a mandamsu directed to the Postmaster
General, commanding him fully to comply with, obey and execute
the said act of Congress, by crediting the relators with the full
and entire sum awarded in their favor by the soliticor of the
treasury. One of the questions presented by the record was,
whether the case was a proper one for mandamus.
It was contended by the counsel for the Postmaster General,
that it wasa proceeding against him to enforce the performance of
an official duty, and therefore an infringement upon the
executive department of the government. Mr. Justice Thompson, in
delivering the opinion of the court, said: "The act required by
the law to be done by the Postmaster General, is simply to credit
the relators with the full amount of the award of the solicitor.
This is a precise, definite act, purely ministerial, and about
which the Postmaster General had no discretion whatever. The law
upon its face shows the existence of accounts between the
relators and the Post Office department. No money was required to
be paid; and none could have been drawnout of the treasury
without further legislative provision, if this credit should
overbalance the debit standing against the relators.
But this was a matter with which the Postmaster General had
no concern. He was not called upon to furnish the means of paying
such balance, if any should be found. He was simply required to
give the credit. This was not an official act in any other sense
than being a transaction in the department where the books and
account were kept; and was an official act in the same sense that
an entry in the minutes of a court, pursuant to an order of the
court, is an official act. There is no room for the exercise of
any discretion, official or otherwise; all that is shut out by
the direct and positive command of the law, and the act required
to be done is in every just sense, a mere ministerial act." It
was therefore held that the mandamus would lie. (Kendall v. The
United States, 12 Peters' Rep. 526.)
CHAPTER IX:
MANDAMUS TO THE SECRETARY OF THE TREASURY
The Secretary of the Treasury can be compelled by mandamus
to perform a mere ministerial act, on which he has no right to
exercise judgment or discretion, and which is dinstinctly and
clearly imposed upon him by law.
But he cannot, in that manner, be controlled in the general
duties of his office, nor in those several and inherent function
or duties which may be implied as incident to his office. A
mandamus, therefore, will not lie against a Secretary of the
Treasury, unless the laws require him to do what he is asked in
the petition to be made to do.
Therefore, where a mandamus was asked for by the plaintiff,
as executrix, to direct the defendant, as Secretary of the
Treasury Department, to pass to the credit of said estate a
certain sum of money, and pay the same to the plaintiff as such
executrix; and setting out, as grounds for the petition, that the
United States had sued the testator in his lifetime, in the
Circuit court of the United States for the eastern district of
Pennsylvania, on certain post office contracts, and on the 22nd
of October, 1841, he pleaded alarge set-off, and the jury, on the
6th of December ensuing, returned a verdict in his favor on the
several issues which had been joined, and certified that the
United States were indebted to him in a certain sum; and that on
the 12th day of May, 1842, final judgment was rendered in his
favor on this verdict, which has never been paid, but still
remains in full force; and it was not pretended that there was
any special law directing the entry ofthis claim on the books, or
the payment of it either before or after the entry, it was held
that a mandamus would not lie.
Mr. Justice Woodbury, delivering the opinion of the court,
said: "No officer, however high, not even the President, much
less a Secretary of t he Treasury or Treasurer, is empowered to
pay debts of the United States, generally, when presented to
them. If, therefore, the petition in the case was allowed so far
as to order the verdict against the United States to be entered
on the books of the Treasury Department, the plaintiff would be
asfar from having a claim on the Secretary or Treasurer to pay it
as now. The difficulty inthe way is the want of any appropriation
by Congress to pay this claim. it is a well known constitutional
provision that no money can be taken or drawn from the treasury,
except under an appropriation by Congress. (See Const., Art. 1,
Sec.9 [1 Stat. at Large, 15].)
"However much money may be in the treasury at any one time,
not a dollar of it can be used in the payment of anything not
thus previously sanctioned. Any other course would give to the
fiscalofficers a most dangerous discretion. Hence, the petitioner
should have presented her claim on the United States to Congress,
and prayed for an appropriation to pay it. If Congress, after
that, make such an appropriation, the treasury can, and doubtless
will, discharge the claim without any mandamus. But without such
an appropriation it cannot and should not be paid by the
treasury, whether the claim is by a verdict or judgment, or
without either, and no mandamus or other remedy lies against any
officer of the Treasury Department, in a case situation like
this, where no appropriation to pay it has been made." (Reeside
v. Walker, 11How. (U.S.) Rep.,272.)
So, too, where the application for a mandamus set forth
substantially, that on the 19thof March, 1849, the relatore had,
with the advice and consent of the Senate, been commissioned, by
President Taylor, Chief Justice of the Supreme court of the
Territory of Minnesota, to which office there had been annexed
(by the act of Congress organizing the territorial government), a
compensation, or salary, of $1800 per annum, payable quarter
yearly; that the tenure of the appointment was, by the language
both of the act of Congress and of the commission of the relator,
declared to before the term and duration of four years from the
date ofthe commission; that the relator having accepted his
commission, was afterwards, namely, on the 22d of October 1851,
informed by J.J. Crittenden, acting Secretary of State, that the
President had thought it proper to remove him from his office,
and to substitute in his place another person; that the relator,
insisting upon the tenure of his office according to the literal
terms of the commission, preferred a claim before the first
auditor of the treasury for the sum of $2,343, as compensation
from the period of his dismission up to the expiration of four
years from the date of his appointment; that the first auditor
having rejected the claim in these words, "That Aaron Goodrich is
not entitled to the salary claimed by him," an appeal was taken
by the relator to the comptroller of the treasury, by whom the
decision of the first auditor was sustained, and by whom, in
adjudging it, it is remarked that "There can be only one Chief
Justice of the Supreme court in the territory, and the President
of the United States having thought proper to remove Chief
Justice Goodrich, and having nominated, and, by, and with the
consent of the Senate, appointed Jerome Fuller, Chief Justice, in
the room and stead of the said Chief Justice Goodrich, he, that
is the comptroller, was bound to consider the said removal and
appointment as legal;" and in consideration of the facts, and the
law, his decision was that the United States were not indebted to
the said Aaron Goodrich as Chief Justice of the Supreme court of
the territory of Minnesota, and that the decision of the first
auditor in the premises was confirmed and established.
Upon the foundation of the facts above recited, application
was made to the Circuit court of the United States, for the
District of Columbia and county of Washington, for a rule upon
the Secretary of the Treasury, to show cause why a mandamus
should not issue to compel the payment of the said salary, which
was refused by the court. The case was thereupon carried to the
Supreme court by writ of error.
Mr. Justice Daniel, in delivering the opinion of the court,
said: "The only legitimate inquiry for our determination upon the
case before us, is this: Whether under the organization of the
federal government, or by any known principle of law, there can
be asserted a power in the Circuit court of the United States for
the District of Columbia, or in this court, to command the
withdrawal of a sum or sums of money from the treasury of the
United States, to be applied in satisfaction of disputed or
controverted claims against the United States? This is the
question, the very question presented for our determination; and
its simple statement would seem to carry with it the most
startling considerations - nay its unavoidable negative, unless
this should be prevented by some positive and controlling
command; for it would occur, a priori, to every mind, that a
treasury, not fenced round or shielded by fixedand established
modes and rules of administration, but which could be subjected
to any number of description of demands asserted and sustained
through the undefined and undefinable discretion of the courts,
would constitute a feeble and inadequate provision for the great
and inevitable necessities of the nation.
"The government under such a regime, or, rather, under such
an absence of all rule, would, if practicable at all, be
administered not by the great departments ordained by the
constitution and laws, and guided by the modes therein
prescribed, but by the uncertain, and perhaps contradictory
action of the courts, in the enforcement of their views of
private interests. But the question proper for consideration
here, has not been left for its solution, upon theoretical
reasoning merely. It has already been authoritatively
determined."
"The power of the courts of the United States to command the
performance of any duty, by either of the principal executive
departments, or such as is incumbent, upon any executive officer
of the government, has been strongly contested in this court; and
, in sofar as that power may be supposedto have been conceded,
the concession has been restricted by qualifications which would
seem to limit it to acts or proceedings by the officer, not
impled in the several and inherent functions or duties incident
to his office; acts of a character rather extraneous, and
required of the individual rather than of the functionary."
"Thus it has been ruled, that the only acts to which the
power of the courts, by mandamus, extends, are such as are purely
ministerial, and with regard to which nothing like judgment or
discretion, in the performance of his duties, is left to the
officer; but that whereever the right of judgment ordecision
exists in him, it is he, and not the courts, who can regulate its
exercise."
"These are the doctrines expressly ruled by this court,in
the case of Kendall v. Stockton, 12 Peters' Rep.,524; in that of
Decatur v. Paulding, 14 Peters'497; and in the more recent case
of Brashear v. Mason, 6 How., 92; principles regarded as
fundamental and essential, and apart from which the
administration of the government would be impractible. These
principles, just stated, are clearly conclusive upon the case
before us. The Secretary of the Treasury is inhibited from
directing the payment of moneys not specifically appropriated by
law. Claims against the treasury of the United States, like the
present, are, according to the organization of that department,
to be examined by the first auditor; from this office they pass,
either under his approval, or by appeal from him, to the
comptroller; and from the latter they are carried before the
Secretary of the Treasury, without whose approbation they cannot
be paid, and who cannot, even by the concurring opinions of the
inferior officers of the department be deprived of his own
judgment on the justice and legality of demands upon public
moneys confided to his care.
"Opposed to the claims under consideration, we have the
decisions of three different functionaries; to each of whom has
been assigned, by law, the power and duty of judging of its
justice and legality. By what process of reasoning, then, the
authority to make those decisions, or those decisions themselves,
can be reconciled or identified with the performance of acts
merely ministerial, we are unable to conceive; and unless so
identified, as there could have been shown some power in the
Circuit court, competent to the repealing of the legislation by
Congress, in the organization of the Treasury Department -
competent, too, to the annulling of the explicit rulings of this
court, in the cases hereinbefore cited - the Circuit court could
have no jurisdiction to entertain the application for a writ of
mandamus in this instance. As no such power has been shown, nor
in our opinion could have been shown, or even had existence, the
decision of the Circuit court, overruling the application, is
approved and affirmed." (United States v. Guthrie, 17 How.(U.S.)
Rep., 284.)
The principles thus applied in cases of mandamus to the
heads of department of state, are also applicable to cases of
mandamus to all other officers of the government.
The rule to be gathered from all the cases decided in the
Supreme court of the United States, governing mandamus to the
officers of the government seems to be this. It cannot issue in a
case where discretion and judgment are to be exercised by the
officer, nor to control him in the manner of conducting the
general duties of his office; it can be granted only where the
act required to be done, is imposed by law - is merely
ministerial, and the relator without any other adequate remedy.
This rule was applied in the case of The United States v.
Seaman, 17How. (U.S.) Rep., 225, which was an application for a
mandamus to the Superintendent of Public Printing of the two
houses of Congress. By an act of Congress it was made the duty of
the Superintendent to receive, from the secretary of the Senate,
and the clerk of the House of Representatives, all matter ordered
by Congress to be printed, and to deliver it to the public
printer or printers. It also provided that when any document
shall be ordered to be printed by both houses of Congress, the
entire printing of such document shall be done by the printer of
that house which first ordered the printing.
On the 31st of January, 1854, the Commissioner of Patents
communicated to the Senate that portion of his annual report for
1853 which relates to arts and manufactures, which that body, on
the same day, ordered to be printed; and on the following day it
was communicated to the House of Representatives, who passed a
similar order. This communication was delivered to the relator by
the Superintendent.
On the 20th of March,1854, the Commissioner communicated to
both houses the agricultural portion of his report, which each
house, on the same day, ordered to be printed, the order of the
House of Representatives being first made.
The relator, printer to the Senate, claimed that the report
of the Commissioner of Patents was but one document within the
meaning of the act of Congress above referred to,and that by
virtue of the order of the Senate of the 31st of January, 1854,
he was entitled to the printing of the agricultural portion
portion of the report, although the printing of this part was
first ordered by the House of Representatives. The
Superintendent, however, refused to deliver it; and the relator
thereupon applied to the Circuit court for the District of
Columbia for a mandamus to compel the delivery. That court was of
the opinion that it had not jurisdiction of the case, and refused
the mandamus; whereupon the relator brought a writ of error to
the Supreme court. The Supreme court held, that before the
Superintendent could exercise the authority vested in him, it was
necessary for him to make inquiries. He must ascertain in which
house the order to print was first passed. And even in that
particular case to take oral testimony, before he could determine
the fact of priority, as the order was passed in each house on
the same day. That after he had made up his mind upon this fact,
it was still necessary to examine into the usage and practice of
Congress in making a communicaiton in their proceedings as a
document; and to make up his mind whether separate communications
upon the same subject, or on different subjects from the same
office, when made at different times, were, according to the
usages and practice of Congress, described as one document, or
differenct documents, in printing and publishing their
proceedings. And as he was obliged to examine evidence, and form
his judgment before he acted, it was not a case for mandamus.
CHAPTER X:
MANDAMUS TO THE GOVERNOR
Mandamus will not lie to control the Governor in the
discharge of his ordinary official duties, nor to compel him to
perform any act over which he has the right to exercise his
judgment or discretion. It has also been held that he cannot be
compelled, by writ of mandamus, to perform a mere ministerial act
devolved on him by the laws of the State. (Low v. Towns,8 Geo.,
360; People v. Bissell, 19 Ill.,229.)
In the case of Mauran v. Smith,Governor, recently decided by
the Supreme court of Rhode Island, and reported in the 10th No.
of the 5th Vol. of the American Law Register, 630 (N.S.) an
application wasmade to the Supreme court for a mandamus to compel
the Governor to convene a court martial, for the purpose of
hearing charges and trying the relator thereon. The Governor had
revoked the commission of the relator as adjutant general, and
although the latter had, in the same day, demanded to be informed
of the cause thereof, and to be tried by court martial, no action
had been taken by the Governor for the space of twenty-one days.
The statute provides as follow:
" Sec.10 The commander-in-chief mayrevoke and cancel the
commission ofany officer and discharge him from the service in
his discretion.
Sec. 11 Such revocation, cancellation and discharge shall
not be effectual if, with ten days after receiving notice
thereof, such officer shall demand of his immediate superior to
be informed of the cause thereof, and to be tried by a court
martial.
Sec. 12. If such demand be made, it shall be the duty of the
officer on whom it is made to transmit the same to the commander-
in-chief, who shall give such officer the required information,
and see that charges are duly preferred, and that a court martial
be convened to try the same."
The application was dismissed, the court holding that
mandamus does not lie from a State court to the Governor to
compel performance of an official duty,evenofamerely ministerial
nature, wheresuch duty is enjoined on him by the Constitution, or
where, though imposed by statute, it is of such nature that he
alone could perform it; and that it is immaterial whether the
duty be of a political nature, or one pertaining to the Governor
in his capacity as Commander-in-chief of the military forces.
The reason upon which this decision is founded is that which
is drawn from the division of the powers of government under the
Constitution, in three coordinate departments, legislative,
executive, and judicial, each independent of the others, except
in so far as one is subordinated to the other by the
Constitution. That to hold that the ministerial duties of the
executive may be compelled by the judiciary, is in effect to
maintain, that to the extent of his ministerial duties, the
executive is not the coordinate of the judiciary but subordinate
to it.
But the better doctrine seems to be, that the Governor is
not an exception to the general rule that all public officers may
be mandamus, be compelled to perform an act clearly defined and
enjoined by the law, and which is merely ministerial in its
nature, and neither involves any discretion, nor leaves any
alternative. (Pacific Railroad v. Governor, 23 Miss., 353; Colten
v. Ellis, 7 Jones' Law (N.C.), 545; Chamberlain v. Sibley, 4
Min., 309; 7 O.S.R., 372.)
In the case of The State of Ohio, ex rel. Lewis Whiteman et
al v. Salmon P. Chase, Governor, 5 O.S. Rep., 529, the question,
"Whetherthe Governor can be controlled in his official action by
the authority of a writ of mandamus from the Supreme court," was
prevented and discussed for determination.
Bartley, C.J., indelivering the opinion of the court, said:
"Can the chief executieve officer of the State be directed or
controlled in his official action by proceedings in mandamus? It
is claimed on the part of the defense, that, inasmuch as the
government is, by the Constitution, divided into the three
separate and coordinate departments; the legislative, executive,
and judicial; and inasmuch as each department has the right to
judge of the Constitution and laws for itself, and each officer
is responsible for an abuseor usurpation, in the mode pointed out
in the Constitution, it necessarily follows, that each department
must be supreme within the scope of its powers, and neither
subject to the control of the other, for the manner in which it
performs, or its failure to perform either its legal or
constitutional duties. This argument is founded on theory rather
than reality. That each of these coordinate departments has
duties to perform, in which it is not subject to the controlling,
or directing authority of either of the others, must be conceded.
But this independence arises not from grade of the officer
performing the duties, but the nature of the authority exercised.
Under our system of government, no officer is placed above the
restraining authority of the law, which is truly said to be
universal in its behests, all paying it homage; the least as
feeling its care, and the greatest as not exempt from its power.
And it is only where the law has authorized it, that the
restraining power of one of these coordinate departments can be
brought to operate as a check upon one of the others. The
judicial power cannot interpose and direct in regard to
performance of an official act which restsin the discretion of
any officer, whether executive, legislative, or judicial."
In Marbury v. Madison, 1 Cranch REp., 170, Chief Justice
Marshall said: "It is not by the office of the person to whom the
writ is directed, but the nature of the thing to be done, that
the propriety, or impropriety of issuing a mandamus is to be
determined. The constitutional provision declaring that `the
supreme executive powerof this State shall be vested in the
Governor,' clothes the Governor with important political powers,
in the execution of which he uses his own judgment or discretion,
and in regard to which his determinations are conclusive. But
there is nothing in the nature of the chief executive office of
this State, which prevents the performance of some duties merely
ministerial being enjoined on the Governor. While the authority
of the Governor is supreme in the exercise of his political and
executive functions which depend on the exercise of his own
judgment or discretion, the authority of the judiciary of the
State is supreme inthe determination of all legal questions
involved in any matter judicially brought before it.
"Although the State cannot be sued, there is nothing in the
nature of the office of Governor, which prevents the prosecution
of a suit against the person engaged in discharge of its duties.
This is fully sustained by the analogy of the doctrine of the
Supreme court of the United States, in the case of Marbury v.
Madison, 1 Cranch Rep., 170. However, therefore, the Governor, in
the exercise of the supreme executive power of the State, may,
from the inherent nature of the authority in regard to many of
his duties, have a discretion which places him beyond the control
of the judicial power, yet in regard to a mere ministerial duty
enjoined on him by statute, which might have been devolved on
another officer of the State, and affecting any specific private
right, he may be made amenable to the compulsory process of this
court by mandamus."
"And when the issuing of a commission to one elected or
appointed to an office, is by law imposed as one of the official
duties of the Governor, such duty is a mere ministerial act,
which may be enforced by mandamus, should he neglect or refuse to
issue it in a proper case." (The State of Ohio v. Maffitt, 5 Ham.
(O. Rep.), 358.)
CHAPTER XI:
MANDAMUS TO THE AUDITOR OF A STATE
The rule applied by the Supreme court of the United States,
in cases of mandamus to the heads of departments for the federal
government, is undoubtedly the rule which should be applied to
the same cases against the heads of departments of State
governments. And therefore while they may be controlled in the
performance of a mere ministerial act, imposed upon them by law,
they cannot in that manner be controlled by the courts, in the
ordinary duties of their office, nor in those acts requiring the
exercise by them of judgment and discretion.
In accordance with the principles thus stated, it has been
held, that where by legislative enactment, a sum of money is
appropriated to be paid to a person, and by law it is made the
duty of the auditor of a State to draw his warrant on the State
treasury for its payment, and on the presentation of such a
warrant it is made the duty of the treasurer to pay the money; if
the auditor refuses to do his duty in that respect, he may be
proceeded against by mandamus. (Divine v. Harris, 8 Monroe (Ky.)
Rep., 440.)
It seems also that it will lie to compel the comptroller of
the State to audit the accounts of a member of the legislature,
for the daily compensation fixed by law. (Fowler v. Peirce, 2
Cal. Rep., 165.) But he cannot be compelled to allow an account
against the State, when he is clothed with the authority to pass
upon the legality and justice of a claim. Therefore where the
comptroller of State refused to pay a sheriff certain fees, to
which he was entitled, and the sheriff petitioned for a mandamus;
and it appeared that it was the duty of the comptroller to audit,
adjust and settle the accounts of all officers, and also to
decide upon the justice and legality of claims against, or by the
State.
It was held, that as his official duty in that respect was
not purely ministerial, but descretionary, the comptroller could
not be controlled by the court in the exercise of his judgment
and discretion, and that the relief of the sheriff was by
memorial to the general assembly of the State and not by
mandamus. (Towle v. The State, 3 Florida Rep., 202.)
It appears also, that where there is a constitutional
provision that no disbursements shall be made from the treasury
except under sanction of a legislative appropriation, specifying
distinctly the object to which it is to be applied, a return to a
writ of mandamus, the object of which writ is to compel the
comptroller to draw his warrant on the treasurer, in favor of the
relator, for a sum alleged to be due to him from the State, for a
portion of his salary as a former justice of the Supreme court,
setting forth that no appropriation had ever been made by law for
the payment of the relator's claim as required by the
constitution, was, on demurrer, held to be a conslusive answer.
(The People v. Lorenzo Burrows,27 Barb. Rep., 89.)
So, too, it has been held that although the auditor is the
general accountant of the State, yet is is competent for the
State to refer the settlement of account to other persons, by
whose decision, in the scope of their authority, it will be
bound; and the auditor cannot decline to issue his warrant to the
treasury, becasue he thinks the claim unjust.
Therefore, where by law, making appropriations for certain
printing, it was provided that all payments thereof shall be upon
accounts certified by the secretary of State, which accounts, so
certified, shall be sufficient vouchers for the auditor to draw
his warrant on the treasury, it was held that the certificate of
the Secretary of State, approving the account of the State
printer for work done in accordance therewith, was conclusive on
the auditor, and left him no descretion as to opening the
accounts, though he should allege fraud and deception therein;
and that if he refused to draw his warrant he might be proceeded
against by mandamus. (Danly v. Whitely, 14 Ark. Rep., 687.)
A distinction has been made between the judgment of an
officer in a matter left to his discretion and his judgment as to
the extent of his discretion under the law. And that although the
decision of an auditing officer, as to the amount of a claim
which the law permits him to allow, is conclusive; yet his
decision as to whether the claim is in its nature within the
statute, is not so, but is reviewable on mandamus. (State v.
Hastings, 10 Wis. Rep., 518.)
And where an auditor refuses to perform an act enjoined upon
him by a statute, for the reason that in his judgment the law is
null and void by being unconstitutional, the courts may, if the
statute be decided to be constitutional and valid, compel, by
mandamus, the auditor to go forward and perform the duty.
Therefore, where, by a general banking law of the State, it
was provided that "The auditor is hereby authorized and required
to cause to be engraved and printed, in the best manner to guard
against counterfeiting, such quantity of circulating notes in the
similitude of bank notes, in blank, of the different
denominations herein authorized, as he may from time to time deem
necessary to carry into effect the provisions of this act, and of
such form as he may prescribe;" and it also provided that
"Whenever any company formed for the purpose of banking under the
provisions of this act shall lawfully transfer to the auditor of
State any portion of the public stock issued, or to be issued by
the State of Ohio, or by the United States, such company shall be
entitled to receive from the auditor an equal amount of such
circulating notes, of the different denominations, registered and
countersigned as aforesaid;" and it was shown that the relator, a
banking company, had organized and tendered to the auditor -
lawfully transfered to him, twenty thousand dollars of public
stocks of the State of Ohio, it was held by the court that the
law unquestionably specially enjoined as a duty upon the auditor
of State, that he cause such notes to be printed, countersigned,
numbered, and registered, and receive said stock lawfully
transferred to him, and give said company its notes for
circulation. And that if the auditor refused to do so, although
on the ground that as the law had been passed under the old
Constitution, it had, in his judgment, become abrogated by the
adoption of the new Constitution, mandamus would lie tocompel him
to perform the duty, if in fact, the law was not so abrogated.
(Citizens' Bank of Steubenville v. Francis M. Wright, Auditor, 6
O.S. Rep., 318.)
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