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