CHAPTER XXI:
PRACTICE IN MANDAMUS
PARTIES
The writ of mandamus, from its very nature and definition,
is "a command issuing in the name of the sovereign authority."
(Bouvier's Dict.) And although it is substantially a civil remedy
(2 Carter's Ind. Rep., 423), yet in the United States it has
always been issued in the name of the soverignty by which it has
been authorized. The suit, therefore, is properly prosecuted in
the name of the State, on the relation of some person or persons
who is called a relator. (The State of Ohio v. The Commissioners
of Perry County, 5 O.S. Rep., 497.)
When the remedy by mandamus is resorted to for the purpose
of enforcing some matter of private interest, the relator must
show some special interest in the matter. Otherwise, it is said,
a mere stranger might obtain a mandamus officiously, and for
purposes not at all desirable to the real party. (The People v.
Collins et al.,19 Wend. 65;hamilton v. The State, 3 Ind. Rep.,
458.)
Therefore, where a committee was appointed by a town to
audit the accounts of the overseers of the poor, and to demand,
and receive from them the books of accounts belonging to the
town, held by the overseers in the official capacity, it was held
that the committee had no such property in the books as would
authorize them to apply in their own names for a mandamus to
compel the surrender of the books. (Bates v. Plymouth, 14 Gray
(Mass.) Rep., 163.)
It has been held that a private citizen has no right to
apply fora mandamus to compel a public officer to perform an
omitted duty, in a case where he is not directly injured by its
non-performance. That where the public rights are to be
subserved, it isfor the public officers exclusively, to apply for
the writ. (Samger v. County Commissioners of Kennebec, 25 maine,
291; People v. Regents of the University, 4 Mich. 98; People v.
Inspectors of State Prisons, 4 Mich., 187.)
And in a case where the petitioners for a mandamus showed an
act of the assembly requiring the town borough to open an alley
is said borough; that he had notified them of said law, and
requested them to open said alley, which they had refused to do;
that he was the owner of a lot of ground with two dwelling houses
erected thereon, through which the alley must pass, and that the
opening of such alley would greatly augment the value of said
lot. It was held by the court, that the petitioner's interest was
one in kind, if not in degree, common to all the inhabitants of
the borough, and that he had no right therefore to the writ,
which should be applied for by public officers. (Heffner v.
Commonwealth, 28 Penn., S.R. 108.)
In the case of Sanger v. County Commissioners, 25 Maine,
291, the commissioners of the counties of Kennebec and Somerset,
at a joint meeting of the two boards, adjudged "that common
convenience a nd necessity required that the road prayed for in
said petition," (and which was in both counties), "be located and
established." The commissioners for the ocunty of Somerset
thereupon duly located that part of the road lying in the county
of Somerset, and the commissioners for the county of Kennebec,
duly laid out that part of the same raod in the county of
Kennebec, which lay between the northerly end of Marston's bridge
and the dividing line of the counties of Kennebec and Somerset.
The residue of the same road never having been located by the
county commissioners for the county of Kennebec, who afterwards
upon a petition therefor, declined to lay out the same. One of
the original petitioners for the road made application for a writ
of mandamus to the county commissioners for the county of
Kennebec, requiring them forthwith to complete the location of
that part of the road lying in the county of Kennebec which they
had omitted to lay out.
The respondents moved that the petition be dismissed for the
reason, among others, "that the petitioner for the writ prayed
for, is interested only as other citizens in opening new
thoroughfares, and not entitled to the process prayed for."
Tenney, J., in announcing the opinion of the court upon this
point, said: "A private individual can apply for this remedy only
in those cases where he has some private or particular interest
to be subserved, or some particular right to be pursued or
protected by the aid of this process, independant of that which
he holds in common with the public at large, and it is for the
public officers exclusively to apply, when public rights are to
be subserved. (Rex v. Merchant Factor's Co., 2 B. & Ald. 115.)
These authorities, which are believed to be in accordance with
others upon the same subject, contain the general rule of the
common law upon this point. And we are not satisfied that the
mode provided by the statute, to obtain the laying out, the
alteration and discontinuance of public roads, which is by
petition, which is often followed by proceedings, which are of an
adversary character, and are sometime followed by costs against
the petitioners, can take this case from the general rule. The
reason given in the original petition, for the location of the
road, is, that the public good requires it." And the judgment of
the joint board of commissioners for the two counties is, that
"common convenience and necessity require it." Neither the
petition for the road, nor that for the writ of mandamus, allege
any interest of this petitioner to be promoted, or that his
rights are in any degree diminshed, by the omission complained
of, more than any other individual in the community, andhe is not
shown to have been at any trouble, or incurred any expense or
liability by the proceedings upon the original application for
the road. However mistaken in their duty the county commissioners
for the county of Kennebec may have been, in omitting to make
effectual the judgment of the joint board of commissioners, and
notwithstanding they may be exposed to a peremptory mandamus to
lay out the remainder of the road, by virtue of an application by
a public officer, we think this petition must be dismissed."
The better rule, however, in the absence of any statutory
provision on the subject, seems to be, that where the proceedings
are for the enforcement of a duty, affecting not a private but a
public right, common to the whole community, it is not necessary,
that the relator should have a special interest in the matter, or
that he should be a public officer. This rule is maintained by
high authority.
In the case of Hamilton, Auditor, v. The State, 3 Ind.
Rep., 452, where this question was raised and distinctly decided,
the court say: "Were this a case merely for private relief, the
relator would have to show some special interest in the subject
matter. But here the case is different. The defendant, who was
county audtiro, refused to issue the legal duplicate for the
collection of taxes, and a mandamus was applied for to compel him
to discharge this duty of his office. It is a case for the
enforcement, not of a private, but of a public right; and it is
not necessary, in such cases, that the relator should have a
special interest in the matter, or that he should be a public
officer. That the defendant should discharge correctly the duties
of his office, was a mtter in which Bates, as a citizen of the
county, had a general interest; and that interest was, of itself,
sufficient to enable him to obtain the mandamus in question, and
have his name inserted as the relator."
So in the case of The People v. Collins, et al., 19 Wend.
56, it is said that in matters of mere public right, the people
are the real party; that in such cases the wrongful refusal of
the officers to act, is no more the concern of one citizen than
another; and that while there was no doubt but that the attorney
general might very properly move in the matter, yet the court
could not collect from any of the books, or the reason of the
thing, that he alone had the power to move. (Rex v. The Justices,
etc., 7 T. Rep., 463; Rex v. The Commissioners, & c., 1 T. Rep.,
146; County of PIke v. The State, 11 Ill. Rep., 202.)
And when the subject matter has relations to the validity of
an election, it seems that it is a matter of such public right,
that any citizen may be a relator in an application for a
mandamus. (State v. County Judge, 7 Clark (Iowa) Rep.,186; State
v. Bailey, Ib., 390.)
When a suit for a writ of mandamus is prosecuted by any
public officer in his official capacity, for the public benefit,
and he dies, or his term of office expires before the
determination of the suit, it will not abate, but may be
continued by his successor. (Felts v. Memphis, 2 Head. (Tenn.)
Rep., 650.) Though several persons may be included as prosecutors
in the same writ, at the discretion of the court, and will be
when they constitute but one officer, and the object of the writ
is to admit or restore such persons to office, or when the object
is to secure some private right, and all claim in the same right,
as to admit, or restore several persons to the same office, in
the same corporation; yet when two or more persons join, whose
interest and cause of complaint are entirely distinct, it may
well be doubted whether a joint application for the writ prayed
for, can be sustained. Therefore, when the record showed that a
certain sum was awarded to Simon Doe, and another sum to Dennis
Blackwell, as damages severally sustained by them by reason of a
road laid out across their lands, it was held that htere was no
interest common toboth which would authorize them to join in an
application for a mandamus, to compel the county commissioners to
order and direct the damages so allowed, tobe forthwith paid.
(Hoxie et al. v. The County Commissioners, 25 Maine, 333.)
Neither can one and the same writ of mandamus be directed to the
officers of several corporations, to compel them to perform
distinct duties, growing out of distinct liabilities. (Angell &
Ames on Corporations, 51.) It was therefore held, that one and
the same writ could not be directed to the township committees of
two several townships, to compel them to proceed to do their duty
in the matter of a road. (State v. Chester Eveshane, 5 Halst.,
292.)
The writ should be directed to those who are to execute it,
or to do the thing required. And if it be directed to several,
acting in different capacities, but the action of all is
necessary for the accomplishment of the thing required, it should
be taken distributively, andeachare bound to obey the writ
according to their several functions. (3 Stephens' Nisi Prius,
2321.) It should also appear, that the personto whom it is to be
directed, has the power to execute it, for if he has not, it will
not be issued. (State v. Dunn, Minor, 46; 15 Barb. 607; 12 Ib.
217.)
Where the cashier of a bank had refused to allow one of the
board of directors to examine the discount books of the bank, it
was held that the cashier had the possession, and control of the
books, and that the writ might be directed to him, and not to the
directors, although the cashier had excluded the relator from
such inspection, in pursuance of a by-law passed by the board of
directors, excluding relator from all access to the books of the
institution. The court also intimated that it might also be
directed to the directors. (The People v. Throop,12 Wend. 183.)
If the act commanded must be done by the whole corporation,
or if a portion of the act by the whole corporation, and another
portion by the head officer, the writ should be directed to the
whole corporation, and not to the different enumerated classes,
or individual members who compose it. Thus, a mandamus to compel
an election of an officer in a corporation should be directed to
the whole corporation, and not to the individual members. But if
the act is to be done by a select body, as, for instance, certain
officers ofa corporation, the writ may be directed to the select
body, or to the whole corporation. (Angell & Ames on Corporation,
451; 4 American Law Reg., 163; 6 Conn. Reps., 532.)
If directed to the officers by name, it should state
distinctly and accurately their proper capacity.The common
practice, however, is, to direct the writ to those officers of a
quasi corporation who are to be required to perform the act,
without giving the names of such persons. If, however, there is
but a single person holding and performing the duties of the
office, as an auditor, or treasurer, it may issue to such officer
by name, and as such officer.
But in which ever form the proceedings may be commenced, it
seems that a notion for a mandamus against a municipal or quasi
corporation, is virtually, a proceeding against the body, and the
judgment is obligatory on the members of the board in office at
the time of its rendition. And although it may assume the
character of an individual proceeding, yet if it becomes
necessary to enforce the orders of the court by attachment, or
other process for contempt, a change in the membership of the
board does not change the parties as to abate the proceedings.
The constituent parts of the board may not be the same, but the
representative body remains identical. (Maddox v. Graham, 2 Met.
(Ky.) Rep., 56.)
A writ of mandamus, to a subordinate judicial tribunal, is
properly directed to the judge or judges of the court, and
especially where there may be other judges authorized to hold, or
participate in holding the court. In case of disobedience to the
mandate ofthe supervisour court, the authority to compel
obedience is exercised over the judges personally having the
power to exercise the functions of the court. (Hollister & Smith
v. The Judges of the District court of Lucas county, 8 O. S.
Reps., 201.)
And where, to a writ thus directed, it was objected that the
defendants were judges of the court of Common Pleas, and only as
such, authorized to hold a District court, it was held that as by
the Constitution and laws of the State, the judges of the court
of Common Pleas, constituted the judges of the District court,
and as such, clothed with full authorityh to hol the District
court, and exercise its jurisdiction and authority, it mattered
not in what form of expression the judicial power was conferred.
And that, therefore, there was nothing in the objection that the
writ was directed to them as the judges of the District court,
instead of the District court. (Ib)
The writ is, however, sometimes directed to the judges by
name, stating their position; and when the object is to compel
the signing of a bill of exceptions, perhaps this is the
advisable practice. (The State of Ohio v. Todd et al., 4 O.
Reps., 351.) This, however, is not universally the practice. (The
State v. The Judges of Common Pleas, 1 West. L. J., 358.)
CHAPTER XXII:
PROCEEDINGS IN MANDAMUS
The proceedings in mandamus were formerly commenced by a
motion in court, the grounds for which were supported by the
production of affidavits, asking for a rule against the
defendant, to show cause why the writ of mandamus should not
issue. The hearing on the motion was ex-parte, and no previous
notice to the opposite party was necessary; the defendant was
notified of the granting of the rule, by serving upon him a copy
of the rule.
It was necessary that the affidavits in support of the
motion, should contain a precise statement of the facts
constituting the relator's right to the writ; and it was held
that they were insufficient if the allegations in them were not
so positive, that an indictment for perjury could be maintained
upon them if false. They should also show that the applicant is
entitled to the relief he prays; that he has complied with all
the forms necessary to constitute his right; that he has applied
to the defendant to do that which he asks the court to command
the performance of; and the refusal or neglect. (3 Stephens' Nisi
Prius, 2318, 2319; 1 Swift's Digest, 564.)
The defendant might come into court, and by counter
affidavits, show cause against the rule; and if, upon reading
such affidavits, or hearing counsel against the rul, it became
perfectly apparent that the relator was not entitled to the writ,
the rule was discharged. But if his right appeared only doubtful,
the court made the rule absolute, in order that the right might
be tried. On the rule being made absolute, an alternaitive write
of mandamus was issued, in which writ it was necessart to set
forth the facts which entitled the prosecutor to the relief
prayed for, and the duty to be performed by the defendant, and
directed to the person or persons whose duty it is to perform the
act, commanding them to do the thing requited, or signify some
reson why they should not do it. To this writ the defendant was
required to make a written return, either denying the facts
stated in the writ on which the claim of the relator was founded,
or setting forth other facts sufficient in law to defeat the
relator's claim.
If the writ was defective, either in form or substance, the
defendant could move to quash it. If the defect was of form
only, the motion to quash should have been made before return
made to the writ. But if the defect was one of substance in the
writ, as a want of sufficient title in the relator to the relief
sought, it could be taken advantage of at any time before the
peremptory mandamus was awarded. (The Commercial Band of Albany
v. The Canal Commissioners, 10 Wend.26; 6 Conn. 532; 7 East. 245;
4 Cowen's Reps. 73.)
If the return was adjudged insufficient, a peremptory
mandamus was issued commanding, absolutely, the defendant to do
the thing required, and if not obeyed, an attachment issued
against the person disobeying it. If the return was sufficient
in law, although galse in fact, the relator could not traverse
it, but was compelled to resort to his action for a false return.
But after the passage of the statute of 9 Anne, C. 20, the
relator might reply, take issue, or demur to the return. (3
Black. Com. 265.)
The more common practice in the American courts is to file a
formal petition, complaint, or application, as it is variously
called, alleging in detail the grounds of the application, and
praying for a writ of mandamus to be issued. This petition is
swprn to by the applicant, or supported by the affidavits of
others. If this petition and affidavits make a prima facie case,
an alternative writ of mandamus is issued, commanding the
defendant to do the thing required or to show to the court cause
why it should not be done. This writ serves the same purpose as
a declaration in an ordinary case, and the defendant must move to
quash or demur according to the peculiar practice of the courts,
or make return denying the allegations of the writ, or setting up
new matter, constituting a defense to the relator's claim.
In some States, however, the ptactice seems to be to serve
the petition or complaint upon all parties supposed to have an
interest in the question involved, a sufficient time before the
term to gave an opportunity for taking the testimony upon notice;
and upon the return of the petition the case is heard upon its
general merits. In either form, if the application prevails, a
peremptory mandamus issues, the only proper return to which is a
certificate of compliance with its requisitions, without further
excuse or delay. (Redfield on Railways, 441; State v. Smith, 9
Iowa, 334.)
This general rule that the respondent must certify in answer
to the writ, that he has complied with or obeyed its
requirements, is subject to exceptions in case the writ has been
improvidently issued, or has commanded the performance of an
illegal act. (State v. County Judge, 12 Iowa, 237.)
In such case, a motion to vacate the rule allowing the
peremptory writ and setting the mandamus aside, has been granted.
And where an agreement was made between counsel for the
relator and counsel for the respondents, that all further
proceedings in a mandamus cause should be stayed until the next
term of the court, and notwithstanding such agreement the relator
procured other counsel, and in the absence of the relator and his
counsel, and before the next term of the court, procured a
peremptory mandamus to be issued, the rule granting the writ was,
on motion, vacated, and the mandamus set aside. (Everitt v. The
People, 1 Caines Rep. 8.)
CHAPTER XXIII:
THE APPLICATION
The petition for a writ of mandamus, should present to the
court a prima facie case of duty on the part of the defendant to
perform the act demanded, and an obligation to perform it;
otherwise the alternative writ will not be granted. It should
also appear from the petition that a demand has been made on the
defendant to do the thing he is sought to be compelled to do, and
that he had refused or neglected to do it. (Stephens' Nisi Prius,
2318, 2319; 9 Mich. R. 328.) And the facts and circumstances
under which the petitioner claims the relief prayed, should be
stated fully, clearly and unreservedly, and not inferentially.
(Commonwealth v. Commissioners, 37 Penn. S. R. 277.) And it
should also be shown that the defendant has it in his power to
perform the act.
It has, therefore, been held that a complaint in mandamus
against a comptroller is fatally defective if it fails to allege
that there are "moneys not otherwise appropriated by law," out of
which the compensation sought for, is to be paid. (Redding v.
Bell, 4 Cal. R. 333.)
And where a petition for a mandamus alleging a contract
between the petitioner and the justice of a county by which he
was to be paid a certain sum for bhuilding a court house, and a
certain other sum for building a fail, in monthly installments,
for lumber and work, and praying for a writ of mandamus to compel
the payment of what was due, without averring that any particular
sum was due, was held defective and on motion should be quashed.
(McCoy v. Hurnett County, 5 Jones Law [N.C.], 265.)
Where the practice is to hear the case on its merits, upon
the reutn of the petition, the petition serves the purpose of a
declaration in a civil case; and can be quashed, if it fails to
present such facts, as shows the relator entitled to the remedy
demanded. Where, however, the practice is to grant, on an ex-
parte hearing of the petition, and alternative writ of mandamus,
the alternative writ takes the place of a declaration, and the
retun motion to quash, or demurrer should be to it, and not to
the petition.
The truth of the facts set forth in the petition should be
shown by the oath of the petitioner, or the affidavits of others.
The petition should include, as parties defendant, all
persons interested in the defense, and who are to be required to
act upon the order.
CHAPTER XXIV:
THE ALTERNATIVE WRIT
If an alternative writ is allowed by the court, it is the
duty of the relator's counsel to prepare it, and not depend on
the clerk of the court to draft it. As the petition upon which
the writ issues is no part of the pleadings, the writ must be
sufficient in itself to show precisely what is claimed, and the
facts upon which the claim is made. (Commercial Band of Albany v.
Canal Com., 10 Wend. 25.) To draft such writ properly, requires
time, legal skill, and a knowledge of the case. (Johnes v. The
Auditor of State, 4 O. S. Rep., 493.)
The petitioner's rights, and the circumstances under which
he claims them, must be stated unreservedly, fully, and clearly;
and it has even been said, that it ought to answer all the
objections that can reasonably be anticipated.
It should not only show facts sufficient to entitle the
relator to the relief which he claims, but it should also show
his right to all he claims. For it seems in the English
practice, at least, that if the writ issue in the first instance
for some things, which the defendant is not bound to do, it
cannot be supported even as to those things which he is
compellable to perform, and will be quashed on motion. (3 Eng.
L. & Eq. R., 285; 22 Iv., 113; 3 Eng. Railw. & Canal Cases, 774.)
Nor can reference be made to the petition and affidavits on
which the order was granted, in aid of the writ, in this
particular.
And where a writ of mandamus commands the defendant as a
judge or referee, to settle a case and exceptions by disallowing
certain words and sentences, and allowing others, bu t contains
nothing showing that the case thus settled would truly detail the
events of the trial, it is not a mere defect in form, but an
omission of a substantial statement or recital, essential to the
relator's title to the relief claimed.
So, a mandamus issued to a railroad company, commanding them
to issue their warrant to the sheriff to summon a jury to
estimate the damage caused to the relator by the company, in the
construction of their road, is insufficient if it use simply the
general words of the statute. The writ should state specifically
the nature and cause of the injury complained of. (The Queen v.
The Eastern Counties Railway Company, 2 Eng. Railway and Canal
Cases, 540.)
The court may grant the relator leave to amend his writ, by
setting forth his damages fully and specifically, or perhaps to
make any other proper and necessary alterations. (4 O. S. Rep.,
493.)
And where a mandamus was issued to compel a railroad company
to proceed to purchase the lands necessary for the completing of
their roads, between the points specified in their charter, and
to set out and define the line of their road deviating from the
line set forthi in the act of incorporation, in pursuance of an
act amending their act of incorporation, which writ did not aver
that the company had given up their design, or had willfully
exercised any injurious option, or that they were not effecting
it with all convenient speed, or that even a reasonable time had
elapsed, in the opinion of the prosecutor, without due
preparation being made, or that it would not be more advantageous
to all concerned to abide by the original line, than set out and
define a different one, was held insufficient. (The Queen v. The
Eastern Counties Railway Company, 2 Eng. Railway and Canal Cases,
190.)
And as has before been observed, the writ should demand just
the remedy to which the relator is entitled, for if it demands
too much, it is substantially defective. (1 Hill's Reps,. 50,
55; 35 Barb., 110.)
Therefore, where the alternative writ was issued, commanding
the respondents as a board of supervisors, to raise by tax a
certain sum of money to pay the relators the whole amount to be
due them for the performance of a certain contract, and it
appeared that only a portion of the contract was yet performed,
and therefore only a portion of the whole sum due, the peremptory
writ was refused on the ground that the alternative writ demanded
more than the relators were legally entitled to. That as the
peremptory writ must follow the alternative, there could not be
judgment for the relators for part, and the respondents for the
other part. (The People v. The Board of Supervisors of the
County of New York, 18 How. P. Reps., 152.)
An alternative writ of mandamus, to compel the treasurer of
school funds, to pay a bill, should show that the treasurer has
funds from which he ought to pay the bill; and if it does not, it
may be quashed on motion. (State v. Slavin, 11 Wis., 153.)
It should also appear that the relator has no other specific
legal remedy to which he can resort, to compel the performance of
the duty, and that the party to whom the writ is to be directed,
has it yet in his power to perform it. (34 Penn. State Reps.,
494; 20 Ill. Reps., 525.) A distinct assertion, that he cannot
have adequate relief without the aid of a writ of mandamus, has
however been held a sufficient averment of the want of other
legal remedy.
And it seems that a mandamus requiring a municipal
corporation to provide for the payment of the interest on its
bonds, need not set forth when the principal will become due, nor
when, nor where, the interest is to be paid. Nor is it necessary
that the relator's title to the bonds should be set forth; the
averment of his wonership being sufficient to show his right to
ask the interference of the court by mandamus. (Ib.)
But where an alternative writ was issued, to compel the
judges of a court to vacate a rule granted by them, and no reason
appeared upon the face of the writ why the rule of the court
should be vacated, it was held that the writ was defective, and a
peremptory writ refused, even after a return to the alternative
writ had been made. (The People v. The Judges of Columbia Common
Pleas, 3 How. P. Reps., 30.)
The command of the writ must also be according to the duty.
It was therefore held bad to require supervisors to expend a
certain sum of money, in repairing a bridge; the command should
be simply to repair. (The People v. The Supervisors of Dutchess
County, 1 Hill's Reps., 50, 362.) It must also correspond with
the order, directing its issue. (Hawkins v. Mone, 3 Pide's Rep.,
345.)
The alternative writ in the absence of any statutory
provision upon the subject, should be served upon the defendants
a sufficient length of time before the hearing to allow them to
make their defense. For it is a feneral and well established
rule, that no motion which in its operation is to have the effect
of a final judgment ought to be granted without giving the party
against whom it is made an opportunity of being heard. This is a
common right, and to deprive a party of this right is a violation
of the spirit and fundamental principles of our government. (The
People v. The Judges of Rensselaer Com. Pleas, 3 How. P. Rep.
164.)
The allegations or recitals in an alternative writ of
mandamus being in the nature of a pleading, their sufficiency to
support the writ is brought in question on demurrer to the
return, or any subsequent pleadings, the same as in an ordinary
action, and the party must fail who commits the first error in
matter of substance; and defects in these allegations are not to
be aided by the affidavit on which the writ was granted. (People
v. Baker, 35 Varv. R. 105; 10 Wend. 26.)
If the writ is not quashed, the defendant must make a return
thereto, unless he think proper to put an end to the controversy
by doing the act required.
CHAPTER XXV:
THE RETURN
The return must, in all cases, be made by the person to whom
it is directed. Where a mandamus is directed to the mayor, the
mayor alone can make the return, and the other component parts of
the corporation cannot disavow it, becuase the court cannot
refuse the mayor's return, he being the officer to whon the writ
is directed and to whom it is actually delivered. (Stephens' Nisi
Prius, 2326.)
It stands as the second pleading in the action or
proceeding, and must be good, tested by the ordinary rules of
pleading, both in form and substance.
It must either deny the facts stated in the writ, on which
the claim of the relator is founded, or must state other facts
sufficient in law to defeat the relator's claim, and these facts
should be stated positively and distinctly; and if instead of
stating facts the return merely sets out or refers to matters of
evidence from which these facts are inferred, it is
objectionable. (10 Wend. 20; 35 Barb. 105; 37 Penn. S. R. 237; 32
Ib. 218.)
Threfore upon a return to a mandamus to the canvassers of an
election that they rejected certain election returns because they
were not made according to the statute, it was held proper to
order the respondents to state the defects specifecally, that the
court might judge of them. (7 Clarke [Iowa] Reps. 390.)
And where one has been expelled from a society for an
alleged violation of the rules of the society, to which rules
there are certain exceptions, the return to the alternative writ
must deny that the case comes within the exceptions. Therefore
where the rules of a religious society provided "that all
disputes between members are to ve settled by arbitration, and
any member who commences an action at law against another member
is liable to expulsion, except the case be of such a nature as to
require and justify a process at law," and the return simply set
forth that the plaintiff brought suit against a member of the
society in violation of the rules of the church, but did not aver
that the case was not of such a nature as to require and justify
a process at law, the return was held insufficient.
And where the return stated that the plaintiff was tried and
expelled by a "select number of the sid society, and in the
presence of three deacons and a preacher," but it was not shown
of how many this select number consisted, or by what authority
they proceeded to try and expel a member, the return was declared
insufficient.
The court say: This is a radical defect, for the power of
expulsion myst belong to the society at large, unless by the
fundamental articles, or some by-law founded on those articles,
it is transferred to a select number. It ought therefore to have
been set forth from what wource this select committee derived
this authority, and in what manner they were selected, in order
that the court might judge whether the proceeding had been
conducted according to law. (Green v. African Methodist, etc., 1
Serg. & Rawle, 254.)
So, too, it has been held not a good return to a mandamus to
restore a member of a corporation, that "he consented to be
turned out." This was held not a return of resignation. (2
Raymond's Reps., 1304.)
And upon a mandamus to swear in two church wardens, alleged
in the writ to be duly elected, a return that they were not duly
elected was held bad, unless it also alleged that neither of them
were elected. (Ib., 1008.)
And where the writ recited that the plaintiff was duly
elected, admitted and sworn into an office, and without just
cause had been removed, and the return was that he was not duly
elected, admitted and sworn, and therefore they could not restore
him, it was declared a defective return. For if he had been
admitted, although vot duly elected or sworn, yet the return
should show a good cause for the removal. If he had not been
admitted, the return might be good; or if the return had stated
that he had not been elected, admitted or sworn, it would be
good. (Douglas' Reps., 79.)
A return to a mandamus commanding a railroad company to
purchase the lands necessary for making, constructing and
completing their road, which set forth that all their power and
authority given them by law for the compulsory purchase of land
had expired before the writ of mandamus issued, or was applied
for, was held a sufficient return. (Reg. v. The London and
Northwestern Railway Co., 6 Eng. Railway and Canal Cases, 479.)
The court say: "A writ of namdamus supposes the required act
to be possible and to be obligatory when the writ issues. What
power have the defendants now to purchase the lands necessary for
making a line of railway of several miles? A peremptory mandamus
going as is prayed, no excuse can afterwards be made, and the
defendants must implicitly and fully obey it under pain of
imprisonment. Supposing that they were bound to pay any prices
which might be demanded, however extortionate, can it reasonably
be supposed that all the land owners along the line will be
willing to sell at any prices, and that none of them are under
disability to sell? Mr. Knowles contended that the return should
have shown an application to all the land owners, and a refusal
by them. But such a return, and the issues arising upon it, would
be highly inconvenient; and even if all had promised to sell,
without binding contracts have been entered into, they might
afterwards change their minds and the defendants might be
subjected to perpetual imprisonment for not doing what the law
forbids them to do."
But it seems not a good return, that the prescribed period
for the compulsory purchase of the necessary land has nearly
expired, if there is still a period during which the company may
take the requisite initiatory steps. (Reg. v. The York, Newcastle
and Berwick Railway Company, 6 Eng. Railw. and Canal Cases, 489.)
And where a mandamus is issued, requiring a municipal
corporation to probide for the payment of the interest on its
bonds, and the writ avers that the relator is the assignee and
owner of the bonds, a return, averring simply that the bonds were
not transferred in accordance with the acts of assembly, is
insufficient; it should show wherein the supposed illegality of
the transfer consists. Neither is it sufficient to aver that the
liability of the corporation is disputed, without setting forth
facts from which the court may determine that the debt is not
due. (Commonwealth v. Pittsburg, 34 Penn. S. R., 496.)
Every intendment is made against a return to a writ of
mandamus, which does not answer the material facts; therefore, it
has been held that where it is shown that an ex-officer had the
seal of a corporation on the fifteenth of June, it is not
sufficient to avoid the writ, to return that he had no control
over, or possession of it in July, unless he also shows how he
has parted with the control. (The People v. Kilduff, 15 Ill.,
492.)
For the same reason it has been held that a return of a
justice to an alternative mandamus to send up papers, that at the
time of service has fees had not been paid, is no defense against
making the writ peremptory, for they may have been paid since the
service. (People v. Harris, 9 Cal. Reps., 571.)
It seems, also, that an answer to an alternative writ,
setting up prior proceedings on the same subject in the same
court, as a justification of the defendant's action, is defective
if it fails to set forth those proceedings fully, so that the
plaintiff may reply thereto, and the court be enabled to judge
whether the pleadings present a good defense. (State v. Jones, 10
Iowa, 65.)
If the return be insufficient, the relator may demur (Gorgas
v. Blackburn et al., 14 O. R., 252.) or move to quash it; and on
motion the peremptory writ will issue. (People v. State, 2 Barb.,
554; Commonwealth v. Commissioners, 32 Penn. S. R., 218.)
But on demurrer, motion to quash, or motion for a peremptory
writ, the truth of the return is admitted (24 Miss., 439.)
The return, formerly, was not traversable; but in some
States the relator is permitted to plead to it, while in other
States, new matter set up in the return is undeerstood as denied,
without a reply. In such case, if a reply to the return be filed,
a motion to quash the reply will be granted. (9 O. S. Reps.,
599.)
But when the relator pleads to the return, he thereby admits
that, upon its face, the return is a sufficient answer to the
case made by the alternative writ; and if, on the trial, no
material fact on the return is disproved, the defendant will be
entitled to the verdict. (People v. Finger, 24 Barb., 341.)
A return to a writ of mandamus need not be single, but may
contain several defenses, or justifications; and if one of those
be sufficient, the return must be allowed as to that. (Wright v.
Fawcett, 4 Burr, 2041.)
Where, however, inconsistent causes for not obeying the
mandamus are stated in the return, it must be quashed; for, taken
as a whole, it is false. (Angell and Ames on Corporations, 457.)
In the case of "The King v. The Mayor, etc., of Cambridge, 3
Durnford & East's Reps., 456," the court say: "Where two causes
returned to a mandamus are inconsistent, the whole must be
quashed, because the court cannot know which to believe, and it
is an objection to the whole return. It is like a declaration in
which two inconsistent counts are joined; there the plaintiff
cannot have judgment." (5 Durnford & East's Reps., 66.)
But where the return was, first, that the relator was not
duly elected sexton; and, secondly, that there was a custom to
remove, and that he was removed pursuant to such custom, it was
held by the courst that the return was not inconsistent; for that
he might have been elected in fact, and afterwards removed.
(Cowp., 413.)
So, it seems not to be inconsistent to return that the
relator was not eligible to the office, and also that he was not
elected. (3 Durnford & East's Reps., 461.)
It, however, was inconsistent to state in a return to a
mandamus to certifu the election of a recorder, supposed in the
writ to be on the 15th day of January, that the corporation was
not them duly assembled; and afterwards, in the same return, to
state the election of another corporate officer on the 15th of
January of the same year; for if it was not duly assembled, it
could not have elected such other corporate officer. (The King v.
The Mayor of York, 5 Durn. & East's R., 66.)
But a return to a mandamus directed to the steward of the
Court Lect of a borough, commanding him to admit and swear the
relator a freeman of the borough, which set forth that he was not
elected, and further that he was not entitled to be sworn in
because he has not been previously approved of by the lord of the
manor, which is essentially necessary to be done according to a
custom which the steward sets forth before he can be admitted and
sworn, was held consistent. (4 Burr, 2044.)
If a return to a mandamus consists of several independent
matters not inconsistent with each other, but part of them good
in law, and part bad, the court may quash the return as to such
part only as is bad, and put the prosecutor to plead to, or
travers the rest. (3 Durn. & East's Reps. 461.)
A return to a mandamus, directed to the judge of the Probate
court, commanding him to grant probate of a will, which stes up
the pendency of a suit, in the proper court, to contest the
validity of the will, is a sufficient return to the writ. (Rex v.
Dr. Hay, 4 Burr, 2295.)
It has been said, that in a return to a mandamus, the same
certainty is required as in indictments, or returns to writs of
habeas corpus. (The King v. The Mayor of Lynn Regis, Doug., 149.)
It may, however, well be questioned, whether this is not carrying
the rule too far. Lord Mansfield, in the case of "The King v. The
Mayor, etc., of Lynn Regis, Doug., 177," said: "In criminal
prosecutions, technical forms are established, and ought to be
followed. If, in an indictment, you say that A. forged, and
caused to be forged, the proof of either fact will support the
indictment; but to say that he forged, or caused to be forged,
would be bad. This being determined, must be adhered to. But such
nicety is not required in accusations against a corporation in a
corporate court. There substantial certainty is all that is
necessary."
Such certainty only is required as, upon a fair and
reasonable construction, may be called certain without recurring
to possible facts which do not appear. Therefore where a return
to a mandamus to restore, it was stated that the party was
removed by the corporate body at large, the return was held
sufficient without averring that the power is incidental to such
corporate body, unless given by charter, by-law or otherwise, to
a select body. (The King v. The Mayor of Lynn Regis, Doug., 149.)
Where a mandamus was issued suggesting that the relator was,
in easter week, chosen church warden, and the return was that the
relator was not elected in easter week, it was held by the court
that the return was sufficiently certain, because it pursued that
suggestion of the writ. (Rex v. Penrice, 2 Strange's Reps.,
1235.)
On a mandamus to restore an officer who is in at pleasure
only, it is held a good return to say it was their pleasure to
remove him. (1 Ib., 115.)
Ouster upon quo warranto is always a sufficient return to a
mandamus to restore one to an office. And where the writ avers,
heverally, that the prosectuor has been elected, it is sufficient
to answer generally in the return, that he has not been elected,
or what is the same thing, that he has not been duly elected.
This general answer, gowever, is not sufficient if the writ
sets forth certain facts, and concludes with "by reason whereof
the relator was eleted;" but the return in such case should
traverse some material fact, on the truth of which the election
is founded; or if this cannot be done, and the facts stated are
nevertheless insufficient to sustain the election, it should
state what is necessary to a legal election, and negative the
legal nature of that set forth in the writ. (Angell & Ames on
Corporations, 457.)
In every case of amotion or disfranchisement, the return
should show precisely the cause of the same, and the proceedings
had; as that an assembly of the proper persons was duly held,
notice given to the prosecutor, a conviction of an offense, and
an actual amotion or disfranchisement thereupon, in order that
the court may judge of the legality of the cause and the
regularity of the proceedings.
Accordingly if the return merely alleges that the prosecutor
was duly amoved or expelled the corporation for a violation of
duty, without specifying the charges upon which he was convicted,
or the manner of proceeding, it is insufficient. (Ib., 461; 6
Serg. & Rawle, 469.)
If the offecer is entitled to notice before amotion, the
return must specifically aver that notice was given to him to
appear and defend himself, or must show that the corporation did
all they could do to give him such notice; but if it is shown
that the prosecutor actually appeared and defended himself, no
previous notice need be alleged. (Commonwealth v. Penn.
Beneficial Inst., 2 Serg. & Rawle, 141.)
The return should also state specifically the charges
preferred against the relator as grounds for his removal, and
that they were either proved on oath or confessed. It however,
seems not necessary to aver that the amotion was under the
corporate seal, or that it was entered on the corporation books,
even where it is required by law that it shall be so entered on
the corporation books, and under the corporate seal, because it
is said that this will be implied in the general averment that he
was removed. (Angell & Ames on Corporations. 461; Willcock on
Corp., 423.)
A return averring that the relator was only an officer at
pleasure, and that upon due summons to choose another, another
was chosen, and thereby the relator was amoved, was held good.
(Strange's Reps., 674.)
Where the charter of a railroad company makes it obligatory
upon the company to complete their road, a return to a mandamus
to comple them to complete it alleging that the road will not be
remunerative to the company, is not a sufficient return. Neither
would it be a good return "that the making of the same railroad
would be a useless expenditure of labor and money, whilst it
would be destructive of the lands through which it would go, for
any agricultural or other useful or benificial purpose."
For although the making of a particular railway, or a
portion of it, may not be profitable to the company, it may be of
great benefit to particular individuals, and to the public, that
the whole should be completed. And in such cases it also seems
not a good return to allege "that all and every, the sum and sums
of money applicable for the purposes of the said act which can in
reasonable probability come to the possession of or be disposable
by us, the siad company, will fall short by a very large sum of
money of the aggregate sum necessary for the making of the
railway authorized by the said act, and which we, the said
company, are by the annexed writ commanded to make." To say that
"in reasonable probability" they may not have funds for all the
purposes of the act, is not saying positively that the4y have no
funds which would be sufficient to enable them to do all that
they are commanded to do.
Were it, however, clearly made out to the satisfaction of
the court that the company, although carrying out the design with
good faith, and with prudence, was from unforeseen casualties
left entirely without funds, it is probably the court, in the
exercise of its discretion, would refuse the application, and
leave the parties to such relief as they might obtain by
interposition of the legislature. (Regina v. The York and North
Midland R. C., 16 Eng. L. & Eq. Rep., 299.)
And where a mandamus recited that a railroad company had, in
Novermber, 1838 (a time after the compulsory powers given to the
company for taking land had expired), cut through and taken part
of a turnpike road forty feet wide, and had made a bridge thereon
for carrying it over the railway, the said bridge and approaches
being about thirty feet wide only, and which writ commanded the
company to restore the turnpike road to the width required by its
charter, it was held that a return alleging that the company
could not obey the writ without taking more land, and that their
compulsory powers to take land had expired before they were
required by the trustees of the road to widen it, was held
insufficient. (The Queen v. The Birmingham, etc., 2 Eng. R. & C.
Cases, 507.)
The court say: "When the company avail themselves of the
very great powers with which they are vested against the public,
they should take care to act stictly within those powers. As to
the compulsory rights of taking land having expired, that rests
entirely with the company; for the act having passed in the year
1836, the works in question were not begun till more then two
years after, when the power was gone."
A return to a writ of mandamus commanding the admission or
restoration of the relator to the privileges and franchises of a
corporation to which by law he is entitled, must set forth such
matter, in the absece of any special statutory provision on the
subject, as is recognized by the common law as cause of exclusion
or expulsion. Of these there seems to be but three classes: 1.
Violation of duty to the society as a member of the corporation.
2. Offenses as a citizen, against the laws of the country. 3.
Breach of duty in respect alike to the corporation and the laws.
If, therefore, the return sets forth certain conduct of the
relator before he became a member of the corporation as a cause
for his exclusion or expulsion, which conduct was neither illegal
nor immoral, but simply a violation of the by-laws of the
society, it does not set forth a sufficient return. The by-laws
are abligatory only upon those who are members of the society. At
least this is the case where neither the general statute nor the
by-laws of the society make the antecedent observance of this
regulation a condition fo membership. (The People v. The Medical
Society of the County of Erie, 32 N. Y. Reps., 187.)
It has before been said that formerly if the return was
sufficient in law, although it should be false in fact, the court
would not try the truth of the fact, but would for the present
believe the return to be true, and proceed no further on the
mandamus. The party injured by the false in fact, the court would
not try the truth of the fact, but would for the present believe
the return to be true, and proceed no further on the mandamus.
The party ingured by the false return might then prosecute an
action against the respondent for his false return, and if found
to be false by the jury, was entitled to recover damages
equivalent to the injury sustained; and thereupon the court, upon
a new motion founded upon the postea, or judgment in the action
for the falst return, would grant the writ of mandamus in the
peremptory form. (3 Black. Com. 111.)
But the practice in such cases was changed by the statute of
9 Anne, c. 20, by which the relator was permitted to plead to the
return, and his antagonist might reply, take issue or demur, and
the same proceedings were had as if an action had been brought
for making a false return; and after judgment obtained for the
prosecutor a peremptory writ might issue, and a judgment for
damages and costs recovered.
This statute, with some modification, has been enacted by
many of the American States. And it seems that where, upon the
relator's recovering judgment, he is entitled to have a
peremptory mandamus granted to him without delay; and such writ
is a complete remedy, and gives to the party all he is entitle
to, he is permitted to recover only nominal damages.
Where, however, the relator has sustained actual damages by
being deprived of his rights (as in case of expulsion from an
office, or the refusal to induct into an office, whereby the
relator has sustained loss by being deprived of the emoluments of
the office), the relator would, in addition to his judgment for
the peremptory writ, be entitled to a judgment for the amount of
his damages actually sustained, and no more.
Therefore, where a mandamus had been sued out, requiring the
supervisors to audit certain damages assessed by competent
authority at the sum of $200, for the land of the relator taken
for a highway, and to the end that the same should be levied and
collected in a certain town, or to show cause, and the
supervisors made a false return, and the relator had been kept
out of the damages so assessed for some time, it washeld that the
supervisors were liable in damages to the extent of the interest
upon the two hundred dollars while thus kept out of it; but that
as he was entitled to a peremptory writ, commanding the
supervisors to audit and allow the amount so assessed, his
judgment for damages should not include the sum of two undred
dollars. And had the law permitted the supervisors to audit and
allow the interest, as well as the sum assessed, it seems there
would be no ground for any damages, other than nominal. (The
People v. The Supervisors of the County of Richmond, 28 N. Y.
Reps., 112.)
A return, on leave of court, may be amended in matters of
substance, even after it has been filed and exceptions made.
(Doug. Reps., 135; 10 Pick. Reps., 59.)
The motion, however, for leave to amend, should probably set
forth specifically the points sought to be corrected. (State v.
County Judge, 12 Iowa, 237.)
And where the return is insufficient, and in law no defense
to the writ, the court may, on motion, grant the peremptory writ;
yet the court will not, ordinarily, in the first instance order a
peremptory writ, where there is the apperance of having a valid
defence, but will direct the respondent to file a fuller and more
perfect answer. (State v. Jones, 10 Iowa, 65.)
In the English practice, as well as in many of the States of
America, questions of fact, arising on a mandamus, are tried by a
jury. (1 Eng. Railway and Canal Cases, 317; 2 Eng. R. and C.
Cases, 711.)
CHAPTER XXVI:
THE PEREMPTORY WRIT
It seems that the peremptory writ may, where the moving
papers preclude the possiblility of any valid excuse being
consistent with the facts therein contained, be issued in the
first instance, and without the previous issuing of an
alternative writ. (Harkins v. Seneerbos, 2 Min., 344; Knox County
v. Aspinwall, 24 How. [U.S.] Reps., 376.)
This, however, can only be done where both parties have been
fully heard, as upon motion for a rule for a mandamus, and there
is no dispute about facts, and the court is perfectly satisfied
of the propriety and legality of compelling the performance of
what is asked. (Ib.; The People v. The Contractting Board, 27
N.Y. Reps., 378; Crary's Prac., 286.) The more common practice is
not to issue the peremptory writ, until after a hearing on the
reutn to the alternative writ.
The peremptory writ should be like the alternative one,
except that the words, "or show cause why you have not done so,"
are left out. Therefore, though the direction of the alternative
mandamus was erroneous, the peremptory writ founded upon, and
issuing to enforce it, must be directed in the same manner.
And where the defendant has his option to do one or the
other of two or more things, a peremptory mandamus commanding him
absolutely to do one of them, leaving him no option to do the one
or the other, it is invalid and void.
Therefore, when the act of parliament provided that, "if the
line of the railway cross any turnpike road, or public highway,
then (except when otherwise provided by the special act) either
such road shall be carried over such road, by means of a bridge
of the height and width, and with the asent or descent by this or
the special act in that behalf provided," it was held that a
mandamus commnding the railway compnay to cause the said public
highway to be carried over the said railway by means of a bvridge
of a certain height and width, was invalid in not allowing the
defentdants to exercise their option, to either carry the railway
over the highway, or the highway over the railway. (Regina v. The
South Eastern R. Co., 25 Eng. L. & Eq. Reps., 13.)
If the defendant neglects to make a return to an alternative
writ of mandamus, an attachment may issue against him, under
which the court may punish the contempt and enforce obedience to
their writ. The court may, however, issue a peremptory mandamus,
on proof of the service of the alternative writ, without
compelling a return. (People v. Judges, John's Reps., 64)
The relator is not entitled, as of course, to the peremptory
writ, where no return has been made; but should generally proceed
to enforce a return, unless there is some statutory law upon the
subject. (State v. Baird, 11 Wis. Reps., 260.)
The peremptory writ may be amended so as to correspond with
the judgment. But the motion to amend should specifically set
forth the points of variance sought to be corrected. (State v.
County Judges, 12 Iowa, 237.)
If it be made to appear that a peremptory writ of mandamus
has been unfairly obtained, it has been said that the court have
such control over their own judgments that the writ will be set
aside on motion. (The People v. Everett, 1 Caines' Reps., 8.)
Courts enforce compliance with the peremptory writ by
attachment. And if the defendant be a corporation, the attachment
issues against the persons guilty of the contempt in their
natural capacity. And it has been said that if the writ is
directed to several in their natural capacity, unless all join in
making the return, the attachment for disobedience must issue
against all, whether guilty or not, though when they are before
the court their punishment will be proportioned to their offense.
(Angell & Ames on Corporations, 467.)
The application for an attachment is made by a motion upon
which the defendant may show cause unless the contempt be gross,
when the rule is made absolute at first. (Tidd's Practice, 484.)
In the case of "The King v. Tooley, 12 Mod. 312," upon affidavtit
that the defendant had kept out of the way so that personal
service of a peremptory writ could not be made upon him, and that
the writ had been left at his house, the court ordered him to
show cause. And it seems that an attachment may be granted if a
frivolous return is made, or if when the writ is directed to the
head officer and also to the corporation, he makes a return
contrary to the consent of the corporation. (Angell & Ames on
Corporations, 467.)
A writ of mandamus is served by delivering it to the person
to whom it is directed, and he, the defendant, makes his return
to it. For the offecer to read the writ to the person to whom it
is directed, or leave with him a copy and then to keep the
original writ and make his return upon it, as he would do on a
summons, is not a good service or return. (3 Stephens' Nisi
Prius, 2324; 17 Miss. 159.)
If the writ is directed to several persons, a copy must be
served on all but one, showing the original to each at the time
of service, and the original delevered to such one (Corner's
Crown Practice, 227), the officer retaining a copy to make his
return upon. (Hempstead v. Underhill, 20 Ark. 337.)
But where a copy of a mandamus was served without showing
the original, the court refused to set the service aside, on the
ground that there was no authority cited for the motion, and that
the object of the service had been effected by appearance. But if
no attention should be paid by the defendant to a writ of
mandamus served by copy only, it is very doubtful whether an
attachment would issue for a contempt. (Regina v. The Birmingham
and Oxford R. Co., 116 Eng. L. & Eq. Reps., 94.)
CHAPTER XXVII:
WHAT COURTS MAY ISSUE THE WRIT
The power to issue the writ of mandamus is in England given
to the King's Bench only, as having the general supervisory power
over all inferior jurisdictions and officers, and a co-extensive
with judicial sovereignty. These 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.
It seems evident, therefore, that by the principles of the
common law, this power would not, in the absence of any
constitutional or legislative enactment, be incident to any court
which did not possess the general superintending power of the
court of King's Bench, in which the sovereignty might, by
construction of law, be supposed to sit, and to exert there its
prerogative powers in aid of the court, in order that a right
withheld might not be without a remedy. This common law prinicple
may be modified by legislation, in any manner that may be deemed
proper and expedient. No doubt the British parliament, or the
legislature of the States, might give the power to issue the writ
to any judicial tribunal in the State, according to its pleasure,
unless the power is vested exclusively in certain courts, by
constitutional provisions; and in many of the States, this power
is vested in other judicial tribunals than the highest court of
original jurisdiction. (Kendall v. The United States, 12 Peters'
Reps., 526.)
The Constitution vests the whole judicial power of the
United States in one Supreme court, and such inferior courts as
Congress shall, from time to time, ordain and establish. In the
distribution of this power it is declared that, "the Supreme
court shall have original jurisdiction in all cases affecting
ambassadors, other public ministers and consuls, and those in
which a State shall be a party. In all other cases the Supreme
court shall have appellate jurisdiction." It has therefore been
held, that to enable the Supreme court to issue a mandamus, it
must be shown to be an exercise of appellate jurisdiction, or to
be necessary to enable them to exercise appellate jurisdiction
and not original. That it is the essential criterion of appellate
jurisdiction, that it revises and corrects the proceedings in a
cause already instituted, and does not creat that cause. And that
although a mandamus may be issued by the Supreme court, directed
to courts, yet to issue such a writ to public officers is in
effect the same as to sustain an original action, and therefore
appears not to be warranted by the Constitution. (Marbury v.
Madison, 1 Cranch, 137.)
The Supreme court, ikn the exercise of its appellate
jurisdiction, may issue writs of mandamus to inferior courts,
commanding them to sign a bill of exceptions (Ex-parte Crane, 5
Peters', 190), or to enter judgment (8 Peters', 291), or to
proceed to judgment (Ex-parte Many, 14 How. [U.S.] Reps., 24), or
to reinstate a cause erroneously dismissed (Ex-parte Bradstreet,
7 Peters' Reps., 634), or to execute the mandate of the Supreme
court (Stafford v. Union Bank, 17 How., 275), or to permit or
refuse amendments in the pleading. (Ex-parte Bradstreet, 7
Peters' Reps., 647.)
It has also been held, that a writ of error will lie from
the Supreme court, upon the judgment of the Circuit courts,
awarding a peremptory mandamus to restore to an office, where the
matter in controversy was sufficient to g ive jurisdcition to the
court; that the matter in controversy in such cases is the value
of the office, which must be ascertained by the salary.
Therefore, an error from the Supreme court to the Circuit court
for the District of Columbia, to reverse the judgment of that
court awarding a peremptory mandamus, to admit the defendants in
error to the offices of directors in the Columbian Insurance
Company, it not appearing that the value of the office amounted
to one thousand dollars, the sum required to give the Supreme
court appellate jurisdiction from the final judgments or decrees
of the Circuit court for the District of Columbia, the court
directed the writ of error to be quashed. (The Columbia Ins. Co.
v. Wheelwright et al., 7 Wheaton's, 534.)
The power of the Circuit courts of the United States to
issue the writ of mandamus is confined exclusively to those cases
in which it may be necessary to the exercise of their
jurisdiction. (Smith v. Jackson, 1 Paine, 453.)
Therefore, upon a motion for a mandamus to the register of
the land office at Marietta, commanding him to grant final
certificates of purchase to the plaintiff for lands, to which he
supposed himself entitled under the laws of the United States, it
was held by the Supreme court, that the Circuit court did not
possess the power to issue the writ. (McIntire v. Wood, 7 Cranch,
504.)
The Circuit courts of the United States may, it has been
said, issue a mandamus to a State court, which refuses to
transfer a cause under the act of Congress to the Circuit court.
(Spraggins v. County Court of Humphries, 1 Cooke, 160.)
This, however, may safely be said not to be free of doubt.
The Supreme court of Ohio has held, that where a suit has been
instituted in a State court, by a citizen of the State, against a
citizen of another State, for the recovery of over $500, and the
defendant at the time of entering his appearance, files his
petition, offers surety, and complies with the provisions of the
act of Congress for the removal of the cause for trial into the
Circuit court of the United States; and the State thereupon,
refusing to accept the surety and stay further proceedings,
proceeds to trial and renders judgment in the case against the
defendant, the proper remedy for the defendant is the ordinary
one of petition in error, the facts being made to appear upon the
record by plea to the jurisdiction, or by bill of exceptions; and
that the extra-ordinary remedy of a peremptory mandamus, is
neither an appropriate nor an adequate remedy in this case.
Although the decision was based in part upon the ground that
as no stay of execution was had, and the judgment had probably
been executed, and therefore the court were unable to perceive
wherein the relator would be benefited by the case being
certified into the Circuit court, yet the lelading reason given
for the decision was, that the proceedings for the correction of
errors was a complete and adequate remedy, and therefore mandamus
ought not to lie.
Sutlief, J., in announcing the opinion of the court, said:
"The writ of mandamus at common law was a prerogative writ,
introduced to prevent discord from a failure of justice, and to
be used on occasions where the law had established no specific
remedy. It is, however, a general rule at common law, that the
writ of mandamus does not lie unless the party applying has no
other adequate legal remedy.
"The provisions of our code seem strictly consonant with
this common law rule, as to the cases in which the writ of
mandamus may issue. Section 570 provides that this writ may not
be issued in any case where there is a plain and adequate remedy
in the ordinary course of the law.
"If we look to this case as presented by the petition of
relators and the answer of the defendant, it is evident that the
relators had a plain and adequate remedy at law, by excepting to
the holdings of the court. The relators had only to prepare,
present and procure the allowance of a bill of exceptions, so as
to present a statement of the facts upon the record, and by a
petition in error to subject the rulings of that court to review,
and if found erroneous, to reversal by a higher court. If, in
fact, any error intervened in the proceedings of the court of
Common Pleas, the correction of that error could have been
obtained in the usual and ordinary course of proceeding provided
by law in all similar cases. But the relators, for some reason,
did not see fit to avail themselves of the ordinary and adequate
remedy provided for the correction of errors in proceedings of
teh court of Common Pleas; and it is evident to us taht having so
neglected their appropriate and ordinary remedy, they not only
are not entitled to the extraordinary remedy of a peremptory
mandamus, but that, at this time, a mandamus would be
inappropriate and inadequate." (Isaac Shelby et al. v. B.F.
Hoffman, 7 O.S.R. 451.) The motion for a peremptory mandamus was
overruled.
If it be true that a proceeding in error is a complete and
adequate remedy in such cases, it would seem to follow that
mandamus is not an appropriate remedy. But how the action of the
court in the case of The State of Ohio v. The Court of Common
Pleas of Fairfield County, 15 O.S.R., 377, cited and quoted in
this work, page 43, is to be reconciled with the doctrines of the
above cited case, is a difficulty we will leave for the courts to
determine.
It is also said that the Circuit court of the United States
may issue mandamus to a District court which refuses to proceed
to judgment, to compel it to do so. (7 Cranch's Reps., 577.)
It seems that under the Constitution, Congress may give to
the Circuit courts the power to issue the writ of mandamus in all
cases warranted by the principles and usages of law, but has, for
some purpose, seen fit to confine it to certain specified cases.
Mr. Justice Johnson, in delivering the opinion of the court
in the case of McIntire v. Wood, 7 Cranch's Reps., 504, said:
"But although the judicial power of the United States extends to
cases arising under the laws of the United States, the
legislature have not thought proper to delegate the exercise of
that power to its Circuit courts, except in certain specified
cases. When questions arise under those laws in the State courts,
and the party who claims a right or privilege under them, is
unsuccessful, an appeal is given to the Supreme court, and this
provision the legislature has thought sufficient, at present, for
all the judicial purposes intended to be answered by the clause
of the Constitution which relates to this subject."
In the case of McCluny v. Silliman, 6 Wheaton's Reps., 598,
the court not only sustains the doctrine maintained in the case
of McIntire v. Wood, but also held that a State court cannot
issue a mandamus to an officer of the United States. It seems,
therefore, that without further legislation upon the subject,
there is no means provided for compelling by mandamus a federal
officer beyond the jurisdiction of the Circuit court for the
District of Columbia, to perform a ministerial duty, when the
issuing of the writ is not necessary to the exercise of the
proper jurisdiction of the Circuit court, or the appellate
jurisdiction of the Supreme court. That the issuing of the writ
in such cases is not among the reserved powers of the States, nor
has it yet been conferred on the federal courts by the necesary
legislation.
Mr. Justice Johnson, delivering the opinion of the court in
the case of McCluny v. Silliman, before cited, said: "When we
find it withholding from its own courts the exercise of this
controlling power over its ministerial officers employed in the
appropriation of its lands, the inference clearly is, that all
violaltions of private right resulting from the acts of such
officers, should be the subject of actions for damages, or to
recover the specific property (according to circumstances), in
courts of competent jurisdiction. That is, that parties should be
referred to the ordinary mode of obtaining justice, instead of
resorting to the extraordinary and unprecedented mode of trying
such questions on a motion for a mandamus."
It has been held by the Supreme court of the United States,
in the case of Kendall v. The United States, 12 Peters' Reps.,
526, that as the act of Congress of the 27th of February, 1801,
concerning the District of Columbia, and by which the Circuit
court of the District is organized and its powers and
jurisdiction pointed out, declared that the laws of the State of
Maryland, as they now exist, shall be and continue in force in
that part of the District which was ceded by that State to the
United States; and as at the date of that act the common law of
England was in force in Maryland, and that the power to issue a
mandamus in a proper case is a branch of the common law fully
recognized as in practical operation in that State at the time
the Circuit court for the District of Columbia was organized, it
was thereby vested with broader powers and jurisdiction in this
respect than is vested in the Circuit courts of the United States
in the several States, and that it does possess the power to
issue the writ of mandamus directed to United States ministerial
officers when it is a fit and proper remedy.
As to what State courts are clothed with authority to issue
a writ of mandamus, reference must be made to their respective
Constitutions and legislative enactments.
CHAPTER XXVIII:
JUDGMENT UPON PETITION FOR MANDAMUS REVISABLE IN ERROR
In those States where the court having jurisdiction to award
the writ of mandamus is not the court of last resort, the
judgment upon application for such writs is revisable upon writ
of error. (Redfield on Railways, 468; Columbia Ins. Co. v.
Wheelwright, 7 Wheaton's Reps., 534.)
So in Virginia it has been held that if the Circuit court
refuse to issue a mandamus in a proper case, the relator may
apply to the Supreme Court of Appeals for a supersedeas, or writ
of error to the Circuit court. (Morris, ex-parte, 11 Gratt. 292.)
The writ of error, however, must be prosecuted between the
same persons who were the parties in the writ of mandamus.
Therefore, an order for a mandamus to compel the sheriff to
accept a bond for the trial of the right of property levied on
under an attachment, is not such a judgment, sentence or decree
as will support a writ of error sued out by the plaintiff in the
attachment suit. (18 Ala. Reps., 436.)
It appears that previous to the statute of Anne, c. 20, the
application for a mandamus was a summary proceeding, and never
assumed the shape of a common law judgment, but upon the coming
in of the return to the alternative mandmaus the court summarily
disposed of the case by granting or refusing the motion, without
inquiring into the truth of the matters alleged in the return.
That statute authorized the relator to plead to or traverse the
return; and if he availed himself of this privilege, the case
then assumed the regular form of a common law proceeding upon
which a judgment for damages and costs might be given; and upon
such a judgment either party was authorized to sustain a writ of
error. This statute, however, did not abrogate the former mode of
proceeding, and the relator, upon the coming in of the return to
the alternative mandamus, had his election either to proceed
summarily bymotion, or to adopt the more formal mode of
proceeding by plea or demurrer under the statute. It was
deliberately settled in two differenct causes which were brought
before the house of lords a few years after the passing of the
statutue of Anne, that if the case was disposed of by a summary
application, without plea or demurrer, no writ of error could be
sustained on such decision. (The Dean and Chapter of Dublin v.
The King, 1 Bro. P.C. Tom. ed. 73; Pender v. Herle, 3 id. 505.)
These two different methods of testing the validity of a
return to a mandamus are recognized by the Supreme court of the
State of New York, and it is also held that no writ of error lies
upon the granting or refusing a mandamus upon a mere motion
where no plea or demurrer to the return has been filed, as
authorized by the statutes relative to writs of mandamus and
prohibition. (The People v. The President and Trustees of
Brooklyn, 13 Wend. 130.) In Iowa it has been held that although
an information for a writ of mandamus should not, in that State,
be entitled of a cause, nevertheless, a defect in this respect is
not one upon which error will lie. (State v. Board etc., of
Johnson, 10 iowa Reps., 157.)
CHAPTER XXIX:
COSTS IN MANDAMUS
Costs in all proceedings for mandamus, unless controlled by
statute, rest in the discretion of the court. By statute 1 Will.
4, C. 21, S. 6, it was provided that "in all cases of application
for any writ of mandamus whatsoever, the costs of such
application, whether the writ shall be granted or refused, and
also the cost of the writ, if the same shall be issued and
obeyed, shall be in the discretion of the court, and the court is
hereby authorized to order and direct by whom and to whom the
same shall be paid. (3 Stephens' Nisi Prius, 2322.)
By the English practice it is ocmmon to award costs against
the relator and to the defendant, when the application is denied,
but not always to the relator when it prevails. It is said that
the more general and the more equitable rule, in regard to costs,
in proceedings where the court have a discretion in that respect,
it to allow costs to the prevailing party, unless there is some
special reason for denying them. (Redfield on Railways, 444; Fox
v. Whitneyh, 32 N.H.R., 408; Ballou v. Smith, 11 Foster's N. H.
Reps., 413; Regina v. Hardin, 24 Eng. L. & Eq. Reps., 167.)
And where a petition for a writ of mandamus is entered, and
notice ordered, and at the return term the respondent appear, and
the petitioner withdraws the process, the rule was held to be,
that upon that withdrawal of the bill, costs should be adjudged
for the respondent, unless it was shown that he was in fault.
(Anonymous, 31 Maine, 591.)
In the State of New York, if the return is insufficent, the
relator can demur, or move for a peremptory writ. The practice,
in that State, where costs are discretionary with the court, is
not to give costs, usually, on granting an alternative or
peremptory mandamus on motion. If the party would secure costs,
he should go to his demurrer or issue of fact. (The People v. The
Supervisors of Columbia, 5 Cow. Reps., 291; 6 Wend., 559.)
The reason for this practice seems to rest on the fact that
courts favor, and wish to encourage the more formal mode of
proceeding by plea or demurrer.
APPENDIX:
FORM OF MOTION AND PETITION
____________________
Petition for a mandamus to the Judges
Ex parte of the Circuit court of the District
David Taylor of Columbia for Washington County.
____________________
The above petitioner moves the honorable the judges of the
Supreme court of the United States, for a rule on the judges of
the Circuit court of the District of Columbia for Washington
County, to show cause why a mandamus should not issue commanding
them to admit the appearance of the petitioner to a suit in said
court by Thomas Ewing, Jr., against said petitioner; and the
petitioner moves for the said rule on his petition, and the
transcript therewith filed.
1. Because there is no legal cause of bail set forth in the
proceedings in said suit, and by the refusal of the Circuit
court to allow his appearance to be entered to said suit, he is
unlawfully detained in custody by the marshal of said District.
2. Because the act of Maryland, passed in 1715, C.46, 3,
is in force in the county of Washington, and nowise repealed; and
the petitioner was by virtue of said act entitled to appear to
said suit, on giving special bail in the sum of one hundred and
thirty-three dollars thirty-three and a third cents. But the
court refused to allow him to appear, or to enter bail in said
account.
3. Because the petitioner has a legal right to appear
without bail, or upon giving bail to the amount required by the
act of 1715, C. 46, 3, and thereby to be discharged from
prison, and the said legal right does not depend on the
discretion of the court, but is fixed and regulated by law, and
there is no other legal remedy for the petitioner in the
premises.
Respectfully submitted,
/s/ Robert J. Brent
for Petitioner.
To the Judges of the Supreme Court of the United States:
The petition of David Taylor respectfully showeth that he is
now confined in the jail in the city of Washington, at the suit
of a certain Thomas Ewing, Jr., and he refers to the accompanying
transcript of the record of said suit, and makes the same a part
of this petition, for the better understanding of the proceedings
under which he is now unjustly and oppressively detained in
prison.
Your petitioner showeth, that by said record it appears he
was held to bail in said suit, upon the affidavit of said Ewing,
and without a copy of the declaration being served on him, as
required bythe act of the legislature of Maryland of 1715, C. 46,
Section 3.
That, at the return of the writ of capias ad respondendum,
issued in said cause, your petitioner moved to enter his
appearance without giving special bail, because of the alleged
insufficiency of the affidavit to hold to bail, but said motion
was overruled by the Circuit court of the District of Columbia
for Washington county. That, thereupon, your petitioner moved to
enter his appearance to said suit, upon giving good and
sufficient special bail, in the sum of one hundred and thirty-
three dollars and thirty-three and one-third cents, because of
the omission to serve your petitioner with a copy of the
declaration, according to the terms of the aforesaid act of 1715,
C. 40 Section 3; and your petitioner then and there tendered in
open court good and sufficient bail, in the last mentioned sum of
money. The sufficiency of said bail for said amount was fully
admitted by said court, as will appear by reference to said
transcript of the record; but the court overruled said
application upon the express ground that your petitioner was
bound to enter special bail to said action, in the amount of the
sum sworn to in the affidavit of said Ewing, which sum is shown
in said affidavit to be four thousand nine hundred and seventy
dollars. Your petitioner is advised that the aforesaid recited
act of the legislature of Maryland is in full force in Washington
county aforesaid; and that, under and by virtue of said law, it
was the duty of the Marshal to require no greater appearance
bail, and of the court to require no greater special bail than
the amount specified in said act, where no copy of the
declaration is sent to be served with the writ; and your
petitioner is also advised, that there is in said affidavit, no
legal cause of bail whatever. Wherefore, inasmuch as the said
Circuit court has refused both of said applications for an
appearance on the part of your petitioner to said suit, and as
the law provides no other adequate remedy in the premises,
whereby your petitioner can, before the final determination of
said suit, regain his personal liberty, whereof he is now
illegally and unjustifiably deprived, your petitioner prays that
the writ of mandamus may be issued and directed to the judges of
said Circuit court, commanding and enjoining them to r eceive the
appearance of your petitioner to said action, either without
requiring special bail, or upon your petitioner causing good and
sufficient special bail to be entered to said action, in the sum
of one hundred and thirty-three dollars and thirty-three cents
and one-third of a cent.
And, as in duty bound, your petitioner will ever pray.
Respectfully submitted,
/s/ R. J. B.
for Petitioner.
Before the subscriber, a justice of the peace of the
District of Columbia, in and for Washington county, personally
appear David Taylor, the within petitioner, and made oath on the
Holy Evangely of Almighty God, that the facts as stated in the
said petition are true, to the best of his knowledge and belief.
(14 How. [U.S.] Reps., 3.)
J. W. B.
J. P.
In some States it is the practice to issue the alternative
writ, on filing the petition, without motion for a rule to show
cause why it should not issue. In such case the following form
will be sufficient:
ANOTHER FORM FOR PETITION
To the Honorable the District Court within and for the County of
............. and State of .................:
Your petitioners, Richard Phillips, etc., respectfully
represent and state to the Court, that they constitute the board
of directors of common schools for the eastern and western
districts of the city of Cincinnati, which schools are
established by law for the education of the colored youth
residing in said city, and that in pursuance of law your
petitioners rented divers rooms and established divers schools in
said city for the education of said youth, and employed competent
and duly qualified teachers as instructors of said youth in the
schools aforesaid.
And your petitioners further state, that heretofore, to
wit., on the 15th day of March, 1850, William Disney, in his
capacity as treasurer of said city, received from the treasurer
of Hamilton county the sum of two thousand one hundred and
seventy-seven and sixty-seven one-hundredths dollars, for the use
of your petitioners and of the common schools for colored youth
so by them established, the same being the proportion of the
public school funds belonging to your petitioners and to the
schools under their charge, as the same was apportioned by the
auditor of said county in pursuance of law, which sum of money
still remains in the hands of said treasurer in the treasury of
said city.
And your petitioners further represent, that on the 1st day
of April, 1850, there became due from them for expenses incurred
inthe support of said schools the sums hereinafter set forth, as
follows, namedly: The sum of six dollars to the trustees of the
New street church, for two months' rent of the school room; the
sum of seven dollars to the trustees of the Union Baptist church,
for one month's rent of school room; to Martha S. Whipple, the
sum of twenty dollars, for one month's salary as teacher; to
Peter Clarke, the sum of twenty dollars, for one month's salary
as teacher; to William R. Casey, for one month's salary as
teacher, the sum of twenty dollars; and to O.J.B. Nickens, the
sum of sixty dollars, for two months' salary as teacher in said
schools; and that thereupon, afterwards to wit., on the 5th day
of April, 1850, your petitioners duly certified to the city
council of said city the correctness of said several accounts,
together with the several accounts respectively, and desired the
city council to pass an order directing the treasurer of said
city to pay the same out of the funds of your petitioners in his
hands, to the persons entitled to receive the same; but your
petitioners state that the said city council afterwards, on the
first day of May, 1850, utterly refused to pass any order in
relation to the payment of said accounts, and they now claim that
they have no power, jurisdiction or authority to make any order
in the premises, whereas, in fact and in law they have such
power, and it is in fact their duty to so do.
Your petitioners further represent, that said William
Disney, treasurer of said city, has no power to disburse said
funds, nor any of the funds in the city treasury, without the
order of said city countil, signed by the city clerk, first being
had and obtained, and has therefore and for that reason, refused
to pay siad accounts, without the order of the city council as
aforesaid.
And your petitioners further state, that by reason of said
refusal by said city council to pass the orders aforesaid, and of
said treasurer to pay said accounts, the teachers employed by
your petitioners are deprived of the compensation which is justly
due them for their services, and the schools so by your
petitioners established have been provided by law, and is now in
the hands of said Disney, as treasurer of said city.
And your petitioners further state, that they are entirely
without remedy in the premises, unless it be afforded by the
interposition of this honorable court by their writ of mandamus;
and they therefore pray that a writ of mandamus may issue against
the city council of the city of Cincinnati, commanding them to
pass an order directing the said treasurer to pay said accounts,
out of said fund, and that such other order may be had in the
premises as justice may require.
A. B.
for Petitioners.
THE STATE OF OHIO, |
Hamilton County. | SS:
Richard Phillips, one of the petitioners above named, and
president of the board of directors of common schools for the
eastern and western districts of the city of Cincinnati, being
duly sworn, saith that that several matters and things in the
foregoing petition stated are true in substance and in matter of
fact, to the best of his knowledge, information and belief.
Richard Phillips.
Signed in my presence, and sword to |
before me, this ....... day of ..........
FORM OF THE ORDER
__________________________________
The State of Ohio on the relation |
of ........................, | PETITION FOR MANDAMUS
v. |
The City Council of Cincinnati |
----------------------------------
And now came the said plaintiff and presented its petition
for a mandamus, against said city council, and the court being
fully advised in the premises, it is ordered that an alternative
writ of mandamus issue to the said city council of the city of
Cincinnati, returnable to the District court, in the county of
Hamilton, on the first day of its next term, commanding said city
council to pass an order directing the city treasurer to pay to
the trustees of the New street church the sum of six dollars; to
the trustees of the Union Baptist church the sum of seven
dollars; to Martha S. Whipple the sum of twenty dollars; to Peter
Clarke the sum of twenty dollars; to William R. Casey the sum of
twenty dollars; and to O.J.B. Nickens the sum of sixty dollars,
out of funds in the hands of the said city treasurer, apportioned
by the auditor of said county for the use of common schools for
colored youth in the city of Cincinnati, or that siad city
council show cause, on the first day of the next term of this
court, why they have not done so.
FORM OF ALTERNATIVE WRIT
THE STATE OF OHIO, |
Hamilton County. | SS:
To the City Council of the City of Cincinnati, Greeting:
Whereas, it has been suggested to us, that Richard Phillips,
etc., petitioners, constitute the board of directors of common
schools for the eastern and western districts of the city of
Cincinnati, which schools are established by law for the
education of the colored youth residing in said city; that in
pursuance of law they rented divers rooms, and established divers
schools in said city, for the education of said youth, and
employed competent and duly qualified teachers as instructors of
said youth in the schools aforesaid.
That heretofore, to-wit., on the 15th day of March, 1850,
William Disney, in his capacity as treasurer of said city,
received from the treasurer of Hamilton county the sum of two
thousand and one hundred and seventy-seven and sixty-seven one-
hundredths dollars, for the use of said petitioners, and of the
common schools for colored youth, so by them established, the
same being the proportion of the public school funds belonging to
said petitioners, and to the school under their charge, as the
same was apportioned by the auditor of said county, in pursuance
of law, which sum of money still remains in the hands of said
treasurer, in the treasurty of said city.
That on the 1st day of April, 1850, there became due from
said petitioners for expenses incurred inthe support of said
schools, the sums hereinafter set forth, as follows, namely: The
sum of six dollars to the trustees of the New street church, for
two months' rent of the school room; the sum of seven dollars to
the trustees of the Union Baptist church, for one month's rent of
school room; to Martha S. Whipple, the sum of twenty dollars, for
one month's salary as teacher; to Peter Clarke, the sum of twenty
dollars, for one month's salary as teacher; to William R. Casey,
for one month's salary as teacher, the sum of twenty dollars; and
to O.J.B. Nickens, the sum of sixty dollars, for two months'
salary as teacher in said schools; and that afterwards to wit.,
on the 5th day of April, 1850, said petitioners, as such board of
directors, certified to the city council of said city the
correctness of said several accounts, together with the several
accounts respectively, and desired the city council to pass an
order directing the treasurer of said city to pay the same out of
the funds of your petitioners in his hands, to the persons
entitled to receive the same; but that you, the said city
council, afterwards, on the first day of May, 1850, utterly
refused to pass any order in relation to the payment of said
accounts, and now claim that said city council have no power,
jurisdiciton or authority to make any order in the premises,
whereas in fact and in law said city council have such power, and
it is in fact their duty to do so.
That said William Disney, treasurer of said city, has no
power to disburse said funds, nor any of the funds in the city
treasury, without the order of said city council, signed by the
city clerk, first being had and obtained, and has therefore and
for that reason, refused to pay said accounts without the order
of the city council as aforesaid. That by reason of said refusal
by said city council to pass the orders aforesaid, and of said
treasurer to pay said accounts, the teachers employed by said
petitioners are deprived of the compensation which is justly due
them for their services, and the schools so by said board
established have been suspended for want of means to carry on the
same, although a fund amply sufficient to sustain said schools
has been provided by law and is now in the hands of said Disney,
as treasurer of said city. That said petitioners are entirely
without remedy in the premises, unless it be afforded by the
interposition of this court, by their writ of mandamus. Now
therefore, we being willing that full and speedy justice should
be done in the premises, do command you that you issue an order
directing the treasurer of said city to pay the said several sums
of money so certified as herein before stated, or that you
appear before the judges of our District court, sitting within
and for the said county of Hamilton, at the court house in said
county on the 18th day of May, 1850, at 9 o'clock A.M. of said
dcay, to show cause why you refuse to do so.
Witness I.G.B., clerk of our District court at Cincinatti,
this 16th day of May, A.D. 1850.
I.G.R.
Clerk.
FORM OF RETURN, OR ANSWER.
To the Honorable the District Court within and for the County of
Hamilton and State of Ohio:
The city council of the city of Cincinnati for return (or
answer, as it may be called) to the alternative writ of mandamus
heretofore issued by said court against them, on application
made by Richard Phillips, etc., claiming to constitute the board
of directors of common schools for the eastern and western
districts of Cincinnati, for the education of colored youth in
said city, say: That the board of trustees and visitors of common
schools of the city of Cincinnati on the 7th day of August, in
the year 1849, passed a resolution that the city should be
divided into two school districts, for the colored youth of said
city, to be called the eastern and western districts; and on the
same day they passed another resolution that the said board
should notify the colored adult male tax payers of said districts
that an election for school visitors and trustees would be held
in said districts on the 13th day of August, 1849, at 2 o'clock
P.M.; and on the same day the city clerk was directed by said
board to cause to be published in the Globe and Chronicle,
notieces of the election provided for in the second of said
resolutions, to be held, in the eastern district, at the New
street chapel, on New street, and in the western district, at
Zion church, on Third street, between Race and Elm streets, which
notice was given. Soon after this the board passed another
resolution to employ suitable persons to list the colored tax
payers and youth of said districts, and did employ one such
person for that purpose in each district.
This respondent further says, that on the 3d day of April,
1850, the accounts set forth in said application for a mandamus,
some of them certified correct by John I. Gaines, some by Charles
Satchel, one by William M. Nelson and one by Richard Phillips,
were presented by one of the applicants for a mandamus, to the
city council of said city, and put on the desk of the president
of said council, with a request that said accounts should be
paid. The said accounts were referred to the committee on common
schools, who, on the 2d day of May, 1850, made the report, a copy
of which is certified by the city clerk, and hereto annexed,
marked "Exhigit A," and the said report was accepted and agreed
to, and the city council refused to order said accounts to be
paid.
This respondent further says, that in pursuance of the order
aforesaid, an enumeration was made of the colored youth in said
city, and there were found to be in the eastern district, four
hundred and twenty-three, and in the western district four
hundred and twenty-two, making together, eight hundred and forty-
five; and that the white youth of said city were also enumerated
and found in the same year (1849) to be thirty-three thousand
five hundred and forty-eight. A tax was levied by the city
council of said city, in the year 1849, for school purposes, on
all the real and personal property in said city as returned on
the grand levy of the State, without any distinction being made
as to the ownership of such property whether owned by white and
colored persons.
The auditor of Hamilton county made a division of the school
funds in the treasury of said county, to which the city of
Cincinnati was entitled, derived from all sources whatever; and
in making such division he appropriated a part of said funds in
proportion to the number of white youth enumerated as aforesaid,
thirty-three thousand five hundred and forty-eight, for the
support of schools for white youth, and a part of said funds in
proportion to the number of colored youth enumerated as
aforesaid, at eight hundred and forty-five, for the support of
schools for colored youth. The amount appropriated by this rule
for the support of schools for colored youth was two thousand one
hundred and seventy-seven dollars and sixty-one cents, which was
paid to William Disney, treasurer of said city, out of the
treasury of said county, by order of the said county auditor, on
the 13th day of March, 1850.
The said city tresurer was not willing to receive said
money, supposing that it was not proper for him to receive it,
and he would not have received it except for the following
reason, to-wit., the said county auditor refused to give him an
order for the other school money unless this was also included,
and all receipted for together. For this reason the city
treasurer did receive said money, and depostied the same in the
State Bank of Ohio, Franklin branch in Cincinnati, where the same
lies, at four per cent interest, subject to judicial decision.
Said city treasurer, supposing as aforesaid, that it was not
proper for him to receive said $2,177.61, has not reported the
receipt thereof officially to the said city council, nor to the
city clerk.
Wherefore this respondent prays the judgment of the court
whether the said sum of $2,177.61 has been legally levied and
collected and appropriated as above set forth, and that the court
will make such order in the premises as shall be required by
right and justice, and that this respondent may be hend
dismissed.
D.V.M.,
Att'y for Respondent.
The foregoing petition, alternative mandamus and return, are
nearly the same as in the case of The State v. City of Cincinnati
et al., 19 O.R. 178. Some alterations were deemed necesssary in
order to make them technically accurate; especially the
alternative writ, which was thought to be insufficient, in not
stating facts showing the obligation of the defendants to perform
the act demanded. (10 Wend. 26; 571 Sec. Ohio Code.)
In Ohio, by the provisions of the Code, the peremptory
mandamus should be like the alternative, except that the words
"or show cause why you have not done so," are left out. In the
absence, however, of any statutory provision upon the subject,
the more usual practice, it is apprehended, is to also set forth
the findings of the court upon the issues of law and fact, made
by the return, or demurrer, to the alternative writ. The
following peremptory writ was issued in the case of Ex-parte
Bradstreet, 7 Peters' Rep., 647:
UNITED STATES OF AMERICA, ss.
To the Honorable ALFRED CONKLING, Judge of the District Court of
the United States for the Northern District of New York,
Greeting:
Whereas, one Martha Bradstreet hath heretofore commenced and
prosecuted in your court several certain real actions, or writs
of right, in your court lately pending between the said Martha
Bradstreet, demandant, and the following named tenants severally
and respectively, to-wit., Apollos Cooper and (others, naming
them). And whereas, heretofore to-wit., at a session of the
Supreme court of the United States held at Washington on the
second Monday of January in the 1832, it appeared upon the
complaint of the said Martha Bradstreet, among other things, that
at a session of your said court lately before holden by you
according to law, all and singular the said writs of right then
and there pending before your said court, upon the several
motions of t he tenants aforesaid, were dismissed for the reason
that there was no averment of the pecuniary value of the lands
demanded by the said demandant in the several counts filed and
exhibited by the said demandant against the several tenants
aforesaid, which orders of your said court os dismissing the said
actions were against the will and consent of the demandant;
whereupon the said Supreme court, at the instance of said
demandant, granted a rule requireing you to show cause, if any
you had, among other things, why a writ of mandamus from the said
Supreme court should not be awarded and issued to you, commanding
you to reinstate and proceed to try and adjudge, according tot he
law and the right of the case, the several writs of right
aforesaid, and the issues therein joined. And whereas, at the
late session of the said Supreme court held at Washington on the
second Monday of January in the year 1833, you certified and
returned to the said Supreme court, together with the said rule,
that after the issues had been joined in the several causes
mentioned in the said rule, motions were made therein, on the
part of the tenants, that the same should be dismissed, upon the
ground that the counts respectively contained no allegation of
the value of the matter in dispute, and that it did not therefore
appear, by the pleadings, that the causes were within the
jurisdiction of the court; that in conformity with what appeared
to have been the uniform language of the national courts upon the
question, and your views of the law, and in accordance especially
with several decision in the Circuit court for the third circuit
(see 4 Wash. C.C. Reps., 482, 624), you g ranted their motions;
and assuming that the causes were rightly dismissed, it follows,
of course, that you ought not to be required to reinstate them
unless leave ought also to be granted to the demandant to amend
her counts. And whereas, afterwards to-wit., at the same session
of the said Supreme court last aforesaid, upon consideration of
your said return, and of the cause shown by you therein against
the said rules being made absolute, and against the awarding and
issuing of the said writ of mandamus, and upon consideration of
the arguments of counsel, as well on your behalf, showing cause
as aforesaid, as on behalf of the said demandant in supoort of
the said rule, it was considered by the said Supreme court that
you had certified and returned to the said court an insufficient
cause for having dismissed the said actions, and against the
awarding and issuing of the said writ of mandamus pursuant to the
rule aforesaid; the said Supreme court being of opinion and
having determined and adjudged of the matter aforesaid, that in
cases where the demand is not made for money, and the nature of
the action does not require the value of the thing demanded to be
stated in the declaration, the practice of the said Supreme
court, and of the courts of the United States, is to allow the
value to be given in evidence; that in pursuance of this practice
the demandant in the suits dismissed by order of the judge of the
District court, had a right to give the value of the property
demanded in evidence, either at or before the trial of the
cause, and would have a right to give it in evidence in the said
Supreme court, consequently that she cannot be legally prevented
from bringing her cases before the said Supreme court; and it was
also then and there considered by the said Supreme court, that
the peremptory writ of the United States issue, requiring and
commanding you, the said judge of the said District court, to
reinstate and proceed to try and adjudge, according to the law
and right of the case, the several writs of right and the issues
therein joined, lately pending in your said court between the
said Martha Bradstreet, demandant, and Apollos Cooper and others,
the tenants aforesaid; therefore, you are hereby commanded and
enjoined that immediately after the receipt of this writ, and
without delay, you reinstate and proceed to try and adjudge
according to the law and right of the case, the several writs of
right and the issues therein joined, lately pending in your said
court between the said Martha Bradstreet, demandant, and the said
Apollos Cooper and others, the tenants herein above named, so
that complaint be not again made to the said Supreme court; and
that you certify perfect obedience and due execution of this writ
to the said Supreme court, to be held on the first Monday in
August next. Hereof fail not at your peril, and have then and
there this writ.
Witness, the Honorable JOHN MARSHALL, Chief Justice of said
Supreme court, the second Monday of January, in the year of our
Lord one thousand eight hundred and thirty-three.
W.T.C.
Clerk of the Supreme Court of the United States.
In some States, following the former practice, the
application for the writ of mandamus is founded upon affidavits
stating the facts upon which the party relies, and which show
that he is entitled to the relief demanded. (1 Johns. Cas., 34; 3
Term R., 575.) The affidavits, where this mode of practice is
adopted, should, like a petition or complaint, set forth the
facts with precision, and should also anticipate and answer every
possible objection or argument in fact, which it may be expected
will be urged against the claim. (5 Term R., 66; 2d Johns. Cas.,
2 ed., 217.) They should not, it seems, be entitled; as for
example, Reuben Turner v. James Haight (2 John's R., 371; 2 How.
Pr. R., 60; 7 Ib., 124), and if so entitled, they will not be
permitted to be read. The affidavits having been prepared,
application is made to the court either that a peremptory
mandamus issue at once, or that an alternative mandamus issue, or
for an order to show cause in the nature of an alternative
mandamus, why the particular act sought to be commanded should
not be performed. The peremptory writ will, however, seldom be
granted in the first instance; although, where both parties are
heard on the application, and there is no dispute about the
facts, and the law is with the applicant, the court will permit
the peremptory writ to issue at once. (7 Cowen, 524; 4 Abb. P.R.,
36; 14 Johns, 25.) It will also be permitted to issue at once
where it is apparent that no excuse can be given for the non-
performance of the act, and the party's rights might be
endangered by delay.
FORM OF AFFIDAVIT
[The following forms are particularly adapted to the State of New
York.]
THE STATE OF ....................., |
County of .................... | ss:
A.B., of ..........................., in said county, being
duly sworn, says: that [set forth the facts, as before directed].
A.B.
Sworn to before me, and subscribed in my |
presence, the ... day of ......, A.D. 18.. |
In the case of The Albany Water Works v. The Albany Mayor's
Court, 12 Wend. 292, the court say, that in future, a motion for
a mandamus, or rule to show cause, will not be entertained
without notice to the party to be affected by the proceedings;
and although it seems that this rule has not been strictly
followed (3 HOw. P.R., 164), yet undoubtedly it is the better
practice to do so. If a peremptory mandamus is applied for, the
notice is indispensible.
FORM OF NOTICE
TO.....................................,
Sir: You will take notice that upon affidavits, copies of
which are herewith served, I shall move the Supreme court, at the
next special term thereof, to be held at the court house in the
village of ................., on the .........day of
............., A.D. 18....., at the opening of the court on that
day, or as soon thereafter as counsel can be heard, for an order
that a writ of mandamus issue out of the said court directed to
you, and commanding you that [state the object of the writ], and
for such other or further relief as the court may be pleased to
grant. (See McCall's Forms, 119.)
Dated ......................
A.B.
by C.D. his Att'y.
ORDER THAT A MANDAMUS ISSUE.
IN THE SUPREME COURT.
-----------------------------
The People ex rel. A.B., |
v. |
E. F. |
-----------------------------
At a special term of the Supreme court held at the court
house in ......................., in and for the county of
........................ on the ..... day of
...................., A.D. 18.... Present, O.P., Justice,
On reading and filing affidavits, and on motion of C.D.,
Esq., counsel for the relator, and after hearing N.M., counsel
for E.F., in opposition thereto, it is ordered that a mandamus
issue out of and under the seal of this court, directed to the
said E.F., commanding him forthwith to [state what is to be
done], or that he show cause to the contrary, before this court,
at the court house in the city of ........................, on
the ........ day of ..............., A.D. 18....
(McCalls's Forms, 141)
Although it would be irregular to entitle the affidavits on
which the writ is allowed, yet it is otherwise with the rule
granting the writ, which may properly be entitled in the cause.
(2 How. P.R., 60.)
ORDER TO SHOW CAUSE WHY MANDAMUS SHOULD NOT ISSUE
IN THE SUPREME COURT.
-------------------------------
The People ex rel. A. B., |
v. |
E. F. |
-------------------------------
At a special term of the Supreme court held at the court
house in ....................., in and for the county of
.................., on the ... day of ..........., A.D. 18.....,
Present O.P., Justice,
On reading and filing affidavits, and on motion of C.D.,
Esq., counsel for the relator, it is ordered that E.F., above
named, show cause at the next special term of this court, to be
held at the court house in ................, on the ... day of
.............., A.D. 18..., why the said E.F. should not be
compelled forthwith to [state the matter required to be done], or
why an alternative mandamus should not issue, directed to him,
and requiring him to do the acts above stated, or to show cuase
to the contrary.
And it is also ordered, that a copy of this order, with a
copy of the affidavits on which the same is founded, be served on
the said F.D., .... days before the time above mentioned. (See
Crary's Practice, 588.)
The service should be made at least eight days before the
hearing. (3 How. Pr. R., 165.)
ALTERNATIVE MANDAMUS TO RESTORE
ONE OF THE COMMON COUNCIL OF A CITY
THE PEOPLE OF THE STATE OF ................, to E.F., etc., the
Common Council of our city of ................., and to every one
of them, Greeting:
Whereas, A.B. was duly elected, sworn and admitted into the
place and office of one of the common council of our said city of
.............., in which said place and office he the said A.B.
always behaved and governed himself well, yet you the said
citizens of the common council of our said city, without any
reasonable cause, have unjustly removed the said A.B. from the
said place and office of one of the common council of our said
city, in contempt of us, and to the no small damage and grievance
of him the said A.B., as we have been informed of his complaint
made to us in that behalf; we therefore, being willing that due
and speedy justice be done in this behalf to the said A.B., as it
is reasonable, do command you, that immediately after the receipt
of this our writ, you do restore, or cause to be restored, the
said A.B. into the said place and office of one of our common
council of our said city of .............., together with all the
liberties, privileges, and franchises to the said place and
office of one of the common council of our said city belonging
and appertaining, or that you show us cause to the contrary
thereof, that the same complaint may not, by your default, be
repeated to us; and how you shall have executed this our writ,
make known to us ............., on ............., there returning
to us this our said writ.
Witness C.D.E., Justice of the Supreme court, at
..........., the ....... day of ................, A.D. 18..... (2
Johns Cases, note 217, 89.)
N. B. Clerk.
[Indorsed]
By the Court.
A. B. Clerk.
ANSWER, OR RETURN, TO SUCH ALTERNATIVE WRIT OF MANDAMUS
The answer of E.F., etc., the Common Council of the city of
.................., within mentioned.
We, the said E.F. etc., common council of the city of
................ for answer to the alternative writ of mandamus
heretofore issued against us on the relation of A.B., say it is
not true that said A.B., was duly elected, sworn or admitted into
the place and office of one of the common council of the city of
...................., as by the said writ is alleged; and,
therefore, we could not restore, or cause to be restored, the
said A.B. into the said place and office of one of the common
council of said city, as by that writ we were within commanded.
E.F.
If the facts in the return, or answer, are denied, or an
issue of fact exists in any other way on the pleadings, the case,
in New York, must go down to the Circuit for trial. (7 Wend. 475)
After the facts of the case are settled, either by an issue and
verdict, or by default of one of the parties, the relator obtains
a peremptory mandamus by motion to the court, on notice to the
opposite party, upon the return, pleadings, verdict, etc. (3 How.
Pr. R., 379.) For form of judgment record in such case, see
Crary's Practice, 591.
PEREMPTORY MANDAMUS
THE PEOPLE OF THE STATE OF ....................., to E.F. etc.,
the Common Council of our city of .............., and to every
one of them, Greeting:
Whereas, A.B. was duly elected, sworn and admitted into the
place and office of one of the common council of our said city of
..............., in which said place and office he the said A.B.
always behaved and governed himself well, yet you the said
citizens of the common council of our said city, without any
reasonable cause, have unjustly removed the said A.B. from the
said place and office of one of the common council of our said
city, in contempt of us, and to the no small damage and grievance
of him the said A.B., as we have been informed from his complaint
made to us in that behalf, and which complaint we have adjudged
to be true, as appears to us of record.
Now therefore, we being willing that speedy justice should
be done in this behalf to him the said A.B., do command and
enjoin you, that immediately after the receipt of this writ, you
do restore, or cause to be restored, the said A.B. into the said
place and office of one of the common council of our said city
of ..............., together with all the liberties, privileges,
and franchises to the said place and office of one of the common
council of our said city belonging and appertaining, lest in your
default complaint should again come to us; and how you shall have
executed this our writ, make known to us to our justices of our
said Supreme court, at the ..................., on the ..... day
of ............., A.D. 18....., and have you then and there this
writ.
Witness, Hon. I.H., one of the justices of our Supreme
court, this ........ day of ................, A.D. 18...... (2
McCall's Forms, 93.)
A.B.
Clerk.
[Indorsed]
By the court.
A.B. Clerk.
# # #
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