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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