CHAPTER XII:
MANDAMUS TO THE ATTORNEY GENERAL
The attorney general is also subject to control, by writ of
mandamus, in his mere ministerial duties in those matters where
he has not the power of exercising his judgment or discretion.
But in his case, as well as in others, the courts will not grant
a mandamus when it would be fruitless and ineffectual to relieve
the relator.
And by this is meant that the aid of the court will be
refused where its writ will not finally avail the party, or
protect its rights, and where he hasno right to the ultimate
relief to which his proceedings tend, or cannot redress his
grievances in the proceeding which he seeks to institute.
Therefore a peremptory mandamus was denied in a case to
compel the attorney general to certify that certainsuits for
penalties were daily instituted as by law required, and which
certificate it was claimed it was his duty to given, in obedience
to a law providing "that whenever costs are adjudged against the
people of the State in any civil suit or proceeding instituted by
any officer duly authorized for that purpose, it shall be the
duty of the comptroller to draw on the treasurer for the amount
thereof, upon the production of an authenticated copy of the
judgment record, etc., and upon a certificate ofthe attorney
general that such suit or proceeding was duly instituted, as by
law required, "where it was shown by the return of the
attorneygeneral that no appropriation had been made by the
legislature for the payment of such costs. For it was maintained
that inasmuch as the money could not be paid out by the treasurer
without an appropriation by the legislature, it would be of no
avail to the relator if thecomptroller's warrant was obtained;
that if the attorney general should be compelled to give the
certificate asked it could not avail the party, asit could not
give him the relief to which his proceedings were designed to
tend.(The People v. Tremain, 29 Barb. Rep., 96.)
The same doctrine was maintained in the case of Woodbury,
petitioner, v. County Commissioners of Piscataquis, 40 Maine
Rep., 304, in which case it was held that the writ will be denied
where a person applies for it for the purpose of being placed in
an office filled by an annual election, to which he alleges he
was duly chosen, but illegally counted out, where it appears that
before any effectual action could be had in the case, if the writ
should be granted, the term for which the peitioner claims to
have been elected will have expired. (Williams, petitioner, v.
County Commissioners, 35 Maine, 345; Howard v. Gage, 6 mass.,
462.)
Neither will courts attempt to compel any officer to do any
act which he is not bound to do, or performan act which will
haveno force when done. Therefore, a mandamus to compel the
Secretary of State to issue a commission to one appointed by the
Governor to the office of the attorney general, was denied, upon
it appearing that the Governor had no power to make the
appointment. (Collins, Secretary of State, v. The State, 8 Ind.
Rep., 345.)
CHAPTER XIII:
MANDAMUS TO CANVASSERS
Though each house of the legislative assembly can alone
determine the right of its members to seats, yet mandamus lies to
compel the canvassers to perform the ministerial act of giving
their official certificateto the person who appears by the
returns to have received the largest number of votes as a senator
or representative. (O'Ferrall v. Colby, 2 Min. Rep., 180.)
And where by law it is provided that where one is elected or
appointed to an office by the general assembly, it shall be the
duty of the speaker to give to him a certificate of his election;
if they refuse to give him such certificate, they may be
proceeded against by mandamus. (State of Ohio v. Loomis, 5 Ham.
(O.R.), 358.)
So where the duty of a board of canvassers of an election is
simply to receive and count the returns of votes, and not to
judge of their validity, or of any fraud affecting them, that
question being for another s pecially appointed tribunal, upon a
case properly brought after the board have declared the result,
the action of the board in this matter is ministerial only, and
mandamus will therefore lie to compel them to perform their duty.
(State v. County Judge, 7 Clarke, (Iowa) 186, State v. Bailey,
Ib., 390.)
And where the statute defining the duties of the board of
examiners provided, that they should "examine the returns of
votes transmitted to them, and if any person shall be found to
have a majority of all the ballots" to give the person elected
written notice of his election, it was held that they were not
made a judicial tribunal upon the validity of the fact of the
election in any other mode than by an examination of the returns
made to them, according to law. That they were not required or
authorized to hear witnesses, or weigh evidences; nor had they
power to send for persons or papers. That if one result appeared
upon the returns, and another was the real truth of the case,
they could only act upon the former. And that as the return
required by statute was a copy of the town record, signed by the
selectment, and attested by the town clerk, the board of
examiners were not required by law to receive, examine, or treat
as a return, any paper which did not appear upon its face, to be
such a return. (Luce v. Mayhew et al., 13 Gray's Rep., 83.)
And where the general election laws of a State directed that
the clerk of the court of Common Pleas, with two justices of the
peace called to his assistance, should open and make abstracts of
the several returns which shall have been made to his office, and
that in making such abstracts of votes the justices and clerk
shall not decide onthe validity of the returns, but shall be
governed by the number of votes stated in the poll-books, and
that no election should be set aside for want of form in the
poll-books, provided they contained the substance, it was held
that the aggregate results of the returns, exhibited by the
several poll-books, were tobe ascertained by arithmetical
calculation, and could not be controlled by the discretion of the
person performing the duty. That such counting of votes, making
of abstracts, which duties fell within the province of a clerk
and accountant, and admitted of no discretion, and were in their
nature ministerial, and that, therefore, the performance of such
duties might be enforced without assuming to control judicial
discretion. (Igerson v.Berry, 14 O.S. Rep., 322.)
The same doctrine was maintained and applied by the courts
of Massachusetts. (Stron, Petitioner,20 Pick. Rep., 484.)
CHAPTER XIV:
MANDAMUS TO STATE TREASURERS
The State Treasurer may also be controlled by mandamus in
the exercise of his ministerial duties. And when the law requires
him, upon the happening of a certain event, to go forward and do
a certain act, his declining to act at once, when notified of the
happening of the event, is equivalent to a refusal, and is
sufficient ground for issuing a mandamus.
Therefore, where the charter of a government stock bank
provided, that if said corporation should at any time, or under
any pretense, refuse to pay any of its notes, teh holder thereof
might file his affidavit of fact with the State Treasurer, who
shall thereupon give notice that the bills of said bank would be
paid at the Treasurer's office; it was held, that it was the duty
of the Treasurer, on such affidavit being filed, to act at once,
without waiting for counter affidavits, and that declining to act
at once was equivalent to refusal, and was sufficient ground for
issuing a mandamus to compel him to give the prescribed notice.
(The People v. State Treasurer, 4 Mich.27.)
In Houston v. Randolph, 24 Texas Rep., 317, however it was
held that mandamus would not lie to compel the State Treasurer to
pay, in accordancewith a warrant signed by the Governor and
attorney-general, acting as the board of school commissioners, as
he and not the judiciary, was the judge of his official duties.
This doctrine, however, can be extended only so far as
relates to those general duties of the office, depending upon the
Treasurer's judgment or discretion. For if the law imposed upon
him some specific duty, if he should refuse to perform it, even
if he thought he was not required by the law to do so, yet the
courts would undoubtedly possess the power to compel him to act,
by writ of mandamus.
CHAPTER XV:
MANDAMUS TO COUNTY AUDITOR
The writ has often been issued to compel county auditors to
perform ministerial duties enjoined upon them by law, and to
force them to act in those cases, even where they had a
discretion as to how they should act in the premises.
The case of Burnett v. The Auditor of Portage County, 12
O.R., 54, was an application for a writ of mandamus to the
auditor of Portage county, to compel him to audit and allow an
account against the county, amounting to $88, for forty-four days
labor performed as assistant appraiser of real property.
The law prescribing the duty of the auditor, provided, that
he should settle all accounts, debts and demands, justly
chargeable against the county, and which are not directed by law
to be settled and allowed by some other person or tribunal,
&c.,"and for all demands against the county, the amount of which
is fixed by law, he shall issue orders on the treasury of the
county."
The compensation ofassistant appraisers, was fixed by the
legislature at two dollars for each day's services.
Birchard, J., in delivering the opinion of the court said:
"If the amount of this account is fixed by law, and within the
meaning of the act, the writ prayed for should be allowed; for in
that case, the duty to be performed would be merely ministerial,
and a writ of mandamus would be a proper remedy. So, if vested
with a discretion, and the officer should refuse to act. In this
case, however, the auditor has acted by rejecting the account.
The proper remedy, if the account be just, and the auditor
authorized to audit it, is an action of assumpsit against the
county. It cannot be contended that the amount of the account is
fixed by law, for the only professes to fix the per diem at two
dollars. This is but a rule for fixing the amount of the account;
and whether it should be eighty-four dollars, or a less sum,
depends entirely upon the amount of services performed."
Another objection to the allowance of the writ in this case,
was that the statute made it the duty of each assessor, and
deputy assessor, at the end of each week in which he shall have
been engaged in the performance of his duty, to enter an account,
in writing, of the number of days, or parts of days, he may have
been engaged during the week, and at some stated meeting of the
commissioners, to present such original account to them; to
testify under oath to the accuracy of the account, and to answer
such questions respecting the same as they may put to him.
It was therefore insisted by the court that the account must
be acted upon by the commissioners of the county, and they must
be satisfied of the performance of the service, before the
auditor could legally issue any order upon the treasury.
It seems clear that that auditor may be compelled, by
mandamus, to perform any public duty specially enjoined upon him
by some provision of law. But whether, from the circumstances of
the case, he is thus enjoined by law, is many times, a difficult
question to determine.
Therefore, where the law provided "that all accounts, debts
and demands, justly chargeable against any county, and which are
not directed by law to be settled and allowed by some other
person or tribunal, shall be examined and settled by the auditor
of such county; and for all such just debts, accounts and
demands, settled and allowed by the auditor, or settled or
allowed by any other person or tribunal authorized by law to do
so," it was doubted by some of the members of the court, whether
the auditor could, by mandamus, be compelled to issue an order to
be paid to the sheriff for expenses in boarding and caring for
juries impaneled to try a person charged with murder.
A majority of the court, however, believed it to be a
necessary incident to their authority to make a provision for the
sustenance and care of juries when called to administerthe
criminal laws of the State in any county; and as the speediest
way of reimbursing the sheriff for money advanced by him for this
salutory purpose, they directed the county auditor to consider an
account of this character, audited and allowed by the court, as
"a just demand against the county, settled and allowed by a
tribunal authorized by law to do so." (The State v. Auditor of
Hamilton County. 19 O.R., 116.)
Another case recognizing the doctrine that mandamus will not
lie to compel the auditor of a county to draw an order on the
treasurer of the county where the auditor has not the right to
fix the amount to be drawn for, unless such amount has been
ascertained and liquidated by the proper authority, is that of
The Commissioners of Putnam County v. The Auditor of Allen
County, 1 O.S. Rep., 322.
The controversy in this case arose in reference to a claim
set up by Putnam county against Allen county, for a sum of money
which it was claimed was due from Allen to Putnam county, by
virtue of the provisons of the statute creating the county of
Auglaize. A large portion of the territory of Allen county was
taken for the purpose of erecting the new county of Auglaize, and
in order to compensate Allen county for the territory thus lost,
a portion of Putnam county was added to Allen. The county of
Putnam was largely indebted at the time, and in order to enable
Putnam county to retain her capacity to pay off her debt, and to
do justice in the premises, the legislature provided as follows:
"That the commissioners of the counties of Allen and Putnam shall
meet on or before the first Monday in April next, or within sixty
days thereafter, and ascertain and determine the amount of the
public debt of Putnam county, exclusive of that for the surplus
revenue loaned to said county, and the proportion which the value
of the taxable lands set off by this act to the county of Allen
from the county of Putnam bears to the value of the taxable lands
by this act remaining in Putnam county; and hereafter, each year
until the public debt aforesaid shall be paid off and discharged,
there shall be paid out of the treasury of Allen county, upon the
order of the auditor thereof, to the treasurer of Putnam county,
a sum which shall bear the same proportion to the amount raised
in that year by Putnam county for the payment of the debt
aforesaid, as the value of the taxable lands so set off as
aforesaid bears to that of those so as aforesaid remaining in
Putnam county, and the same shall be applied to the extinguishing
of said debt, and for no other purpose; and it shall be the duty
of the commissioners of Allen county to levy a sufficient tax to
raise the said sum."
Within the time prescribed by the statute, the commissioners
of Putnam county met, having notified the commissioners of Allen
county of the meeting. The commissioners of Allen county failed
and refused to attend. The commissioners of Putnam county
proceeded to ascertain the debt of Putnam county, and found that
it amounted to over $10,000; and in accordance with the rule laid
down in the statute, made a computation of what amount of this
debt should be liquidated by Allen county. For the year 1849,
Putnam county collected by tax $860.29 and paid off that amount
of the debt. This required of Allen county, according to the
computation made as above, to pay, as her proportion to the
county of Putnam, $330. A demand was made on the auditor of Allen
county to draw an order in favor of Putnam county for that
amount; this he refused to do. An application was thereupon made
for a mandamus to compel him to do so.
Caldwell, J., in delivering the opinion ofhte court, said:
"A question, however, arises. Whether this court, under the
circumstances, can compel the auditor of Allen county, by
mandamus, to issue the order for the amount claimed by Putnam
county. The auditor of a county is aministerial officer, except
in such cases as the Legislature may clothe him with
discretionary powers. The county commissioners are the general
legal representatives of the county. In this particular instance
the auditor had no authority in determining the amount that was
to be paid by Allen county; he was merely to draw an order for
such amount as should be determined on by the commissioners of
the two counties. The amount to be paid has never been decided in
the way provided for by the statute. On the refusal of the
commissioners of Allen county to meet with those of Putnam
county, and to fix the amount, a right of action accrued to
Putnam county, to recover from Allen such amount as might be
found under the rule of computation laid down in the statute. NO
provison is made for the commissioners of Putnam county alone
fixing the amount. So that Allen county is not bound by the
assessment thus made, although she is bound to pay so much as
might be found due in an appropriate action. If the amount were
fixed in the mode comtenplated in the statute, or if it were
liquidated by judgment, mandamus would be a proper remedy to
compel the auditor to perform the ministerial act of drawing the
order; but until the amount is thus liquidated, we think the
auditor cannot be compelled to act; the time for his action has
not arrived."
Mandamus also lies to compel a county auditor to enter upon
the tax duplicate ofthe county, lands which should be thus
entered, and which he neglects or refuses to so enter. But the
writ only lies when the officer is legally empowered to
performthe judgment of the court. And therefore, when the
duplicate for a particular year has gone out of his hands,and he
has no further power or control over it, he cannot be compelled
to so enter it, for it would be commanding him to perform an
impossiblity.
Neither can he be ordered to so enter it, before the time
has arrived for making up the duplicate, for to do so is to
assume that he will then, without coercion, refuse to perform his
legal duty. (The City of Zanesville v. Richards. Auditor, 5 O.S.
Rep., 589.)
And so where the county auditor is about to do an official,
ministerial act, in an illegal and incorrect manner, and in a
matter of public right, mandamus will lie to compel him to do it
in the manner pointed out by law. Therefore where the State board
of equalization had ordered an addition of fifteen per cent to
the valuation of the real property of a certain county, and their
acts and orders in the premises were null and void, and the
county auditor was about to add said fifteen per cent to the
valuation of the land of said county, and to issue the duplicate
for the tax on real property with the fifteen per cent thus
added, it was held that a mandamus would lie to compel him to
certify the duplicate without such addition.
Blackford, J., in delivering the opinion of the court, in
the case of Hamilton, Auditor of Marion Countyv. The State, 3
Ind. Rep., 452, said: "The next question is, whether a mandamus
is the proper remedy in this case? We have no doubt as to this
point. The order of the State board, as we have already shown,
for the addition of fifteen percent, to the valuation of the real
estate in Marion county, is a nullity; it was consequently the
defendant's duty, as the county auditor, to issue the tax
duplicate without said additional percentage. That duty, which
was a public one, the defendant refused to perform; and the
proper remedy for the State, to compel his performance of it, was
by mandamus. The order aforesaid of the State board being null
and void, the defendant had no discretion relative to the issuing
of the duplicate. He was as much bound to issue it without the
said addition of fifteen percent, as he would have been,had the
order for such addition not been made."
CHAPTER XVI:
MANDAMUS TO COUNTY TREASURER
That a mandamus will lie to compel a county treasurer to pay
an account legally chargeable to the county, and which has been
audited and allowed by the proper authority, seems to be fully
settled. (The People v. Edmunds, 19 Barb. 472.) If however, he
has not the funds to pay the account, or has it not in his power
to provide them, the issuing of the mandamus would be an idle
ceremony, and ought not to issue.
But if he might have had the funds, had he not misapplied
them, he is as much bound to pay, as though he actually had them.
Therefore, when public moneys are raised by taxation for specific
purposes, andplaced in the hands of the county treasurer to be
paid out on the order of certain auditing boards, and the
treasurer pays out the money for other purposes than those for
which the money was raised, he may, notwithstanding, be compelled
to pay the orders drawn on him to satisfy claims for which the
money was raised. (The People v. Stout, 23 Barb.,339. Huff v.
Knapp, 1 Seldon, 65. The People v. Edmonds, 15 Barb., 529, 12
Barb., 607, 217. Adsit v. Brady, 4 Hill, 634.)
And where by law, and immemorial usage, the court is
authorized to allow the fees of sheriff, and other executive and
ministerial officers, while in attendance at their sessions, the
determination of the court upon the amount of such costs and
fees, is final and conclusive. And on presentation of a claim
thus allowed, to the treasurer of the county, it is his duty to
pay it, and if he refuses, a mandamus lies to compel him. An
attempt on his part to exercise supervisory powers, is an
assumption of authority. (Baker v. Johnson, 41 Maine, 15.)
A mandamus, however,will not be awarded to compel the county
treasurer to pay anaccount audited and allowedby the proper
auditing board, which was not a legal county charge.
In the case of The People v. Lawrence, 6 Hill, 244, the
supervisors of the county of New York, audited and allowed to the
relator his account for expenses incurred by him in defending
himself as one of the special justices in the city of New York,
on an impeachment and trial before the County court. The county
treasurer refused to pay the account thus audited and allowed,
and an application was made to the Supreme court for a mandamus
to compel him.
Bronson, J., in delivering the opinion of the court, says:
"Whatever appearance of justice there may be in charging the
expenses of the account upon the county, it is enough for us to
say, that this consideration addresses itself exclusively to the
legislature. If this had been a case where the supervisors had
authority to allow the claim, I agree that it would have been the
duty of the treasurer to pay, without inquiring whether the
account had been allowed upon insufficient evidence, or at too
large an amount. But as the supervisors had no jurisdiction over
the subject matter, and that fact appeared upon the face of the
account, presented for payment, their act was a mere nullity, and
it was the duty of the treasurer to withhold payment."
So, too, when the twelfth section of an act, defining the
duties and liabilities of the officers of the city government of
New York - the organization of the courts therein, and the powers
of the board of supervisors, declared that all work to be done,
and supplies to be furnished for the corporation involving an
expenditure of more than two hundred and fifty dollars, should be
by contract, founded on sealed bids, or on proposals, made in
compliance with public notice, for the full period of ten days;
and all such contracts when given, should be given to the lowest
bidder, with adequate security. And section fifteen of the same
act declared, that no contract by the supervisors should be valid
unless expressly authorized by statute, and such as are
authorized must be made in the manner provided by the twelfth
section of the act; and the relators were employed by the board
of supervisors of the city and county of New York, to make
certain repairs of books in the register's office, and their bill
therefor was duly presented to the board of supervisors, and
audited and allowed by them, at the sum of $2,644.50, it was held
by the court, that the contracts were not such as could be made
by the board in the manner they were made. That although the
necessary expenses incurred in keeping the property of the county
in repair, and to preserve it from decay, and keep it in a
condition for use, is a proper and legal county charge, yet the
board of supervisors could create no legal liability against the
county by having this work done in direct violation of the
provisions of the act; that no charge had thereby been created
against the county, and that the court should not award a
peremptory mandamus to the county treasurer commanding him to pay
the accounts, but that it would even be its duty, on a proper
application, to restrain him from so doing. (The People v. Stout,
23 Barb., 349.)
CHAPTER XVII:
MANDAMUS TO COUNTY COMMISSIONERS
The powers of courts, in proper cases, to compel by mandamus
the commisssioners of a county to perform their duty, seems not
to be questioned. It will not, however, be called into action on
every trivial occasion; and although a peremptory mandamus will
be awarded to compel the commissioners of a county to levy a tax
for the satisfaction of ajudgment against the county, should they
refuse, or for a long time neglect to do so, yet they will not,
when there has been no unnecessary, unreasonable or vexatious
delay. (Tillson, Jr. v. The Commissioners of Putnam County, 19 O.
Rep., 415.)
And where subscription had been made by the commissioners of
a county for stock in a railroad company, in pursuance of a
statute authorizing the commissioners to so subscribe, and the
county had thereby become absolutely bound by contract; and the
commissioners, in pursuance of the law, having elected to deliver
the bonds of the county to the company, in payment of the
subscription, and afterwards, upon demand, refusing to do so, and
showing no cause for such refusal, except that the law was of
doubtful constitutionality, it was held that a writ of mandamus
is the proper remedy to enforce the delivery, if the law was
found to be constitutional. (The C.W.&Z. Railroad Company v. The
Commissioners of Clinton County, 1 O.S. Rep., 77; English v.
Supervisors, 19 Col., 172.)
And when a claim is presented to the supervisors of a
county, of such a character that it is their duty to proceed and
act upon it, and they neither allow nor disallow it by any formal
action, their conduct is equivalent to a rejection of the claim;
and if their refusal to allow or disallow proceeds, from the
opinion that the claim is not a legal one, and in the opinion of
the court it is one which the county is legally bound to pay,
they will be ordered to allow it. (The People v. The Supervisors
of Richmond County, 20 N.Y. Rep., 253.)
So in the case of The State of Ohio v. The Commissioners of
Clinton County, 6 O.S. Rep., 280, it was held that it is in
general the duty of the commissioners of a county to ascertain,
as near as may be, the amount necessary to pay the debts of the
county, and to make an assessment for that purpose; and that
mandamus will lie to compel the performance of such duty when
neglected.
In that case the county commissioners had issued interest-
paying bonds to a railroad company, in payment of subscription
to the capital stock of the road. There was an agreement between
the commissioners and the company that the latter should pay all
the interest which "shall or may accrue on the bonds." The bonds
were indorsed by the railroad company to the relator. The company
paid the interest for three years, but failed to pay the fourth
and fifth year's interest. The relator thereupon asked for and
obtained a peremptory mandamus, requiring the commissioners, at
their next session, to levy a sufficient amount of tax to pay the
whole of the interest then due and unpaid.
It was held that in such case it was the duty ofthe county
commissioners to ascertain whether the railroad company would pay
the interest, and if not, the county being primarily liable, the
board of commissioners should have made provision therefor. It
was also held, that as it satisfactorily appeared that no fund or
provision whatever had been made for payment at the treasury of
the county, wehre the interest warrants were made payable, no
proof need be made of demand of payment of the coupons before
proceeding against the commissioners by mandamus; that in fact no
demand was necessary.
A mandamus will undoubtedly lie to compel the county
commissioners to accept and approve a sheriff's official bond, if
such as is required by law, when it is made their duty to do so,
and they neglect or refuse. But if the relator's election to the
office of sheriff has been contested before the court of Common
Pleas, and it was found by said court that the relator was not
duly elected or entitled to the office, while such finding
remains not reversed or set aside, mandamus will not lie. As it
is a high prerogative writ, it will be awarded only in cases
where there is a clear legal right, and the party has no other
adequate remedy.
And the relator will not be entitled to the writ in such
case, although he has filed his petition in error in the district
court of the county to reverse said judgment of the court of
Common Pleas, and has procured from one of the judges of the
district court a writ of supersedeas. The petition in error and
supersedeas does not vacate the judgment. The judgment retains
its vitality and force until reversed or set aside. If reversed
or set aside on the hearing of the petition in error, it of
course ceases to be; but if affirmed, it is the judgment to be
executed. (The State of Ohio v. The Commissioners of, &c., 14
O.S. Rep., 515.)
When county commissioners have a discretion andproceed to
exercise it, courts have no jurisdiction to control the
discretion by a writ of mandamus; but if they refuse to act, or
to entertain the question for their discretion, incases where the
law enjoins upon them to do the act required, courts may enforce
obedience to the law by a mandamus, when no other legal remedy
exists.
As when the commissioners of a county refuse to allow a
claim for services, as a county charge, if, in fact, it be a
legal charge, the proper court may instruct and guide the
commissioners in the execution of their duty by a writ of
mandamus, and compel them to admit the claim as a county charge,
or, in other words, set them in motion without controlling the
exercise of their judgment and discretionas to the amount proper
to be allowed. (Hull v. The Supervisors, &c., 19 Johns. Rep.,
259; 18 Johns., 242; 7 cowen, 363; 3 Mich., 475.)
So where it is made the duty of county commissioners to open
and compare election returns, and to declare and certify who has
the highest number of votes for a certain office, and the relator
actually receives the highest number of legal votes, and the
commissioners refuse to perform their duty by so declaring and
certifying, they may be compelled to do so by mandamus; but when
the election for a certain town was illegal, unauthorized and
void, and the commissioners for that reason refuse to receive or
count the returns from such town, mandamuswill not lie to compel
them. (Ellis v. The County Commissioners, 2Gray'sRep., 370.)
So, where a statute had charged upon the respective counties
any deficiency which might arise upon the sale of land mortgaged
to the commissioners ofloans, and had directed that the amount
should be raised by the board of supervisors; and the case of
such deficiency having occurred in the county of Columbia, the
attorney-general procured a mandamus to compel the supervisors to
do their duty by raising the money to meet the deficiency. The
question was presented by a demurrer interposed by the attorney-
genreal to the return of the board of supervisors, and on the
argument their counsel argued that mandamus was not the proper
remedy, the county, as they contended, being liable to an action.
The answer of the court to this position, as set forth in the
opinion of Chief Justice Savage, in giving judgment for a
peremptory mandamus, was as follows: "Is this a proper case for
mandamus? It has oftenbeen decided in England, and by this court,
that a mandamus will not be granted when there is a remedy by
action. The party asking for a mandamus must have a clear legal
right, and no other appropriate specific remedy. (2 Cow. 444; 1
Wend. 325; 7 Tenn. R., 396, 404.) If an action lies in this case,
then a mandamus should be refused; I think anaction wouldnot lie.
The statute directs the supervisors to levy and collect the
amount of the deficiency; it is a duty imposed upon those
officers which should be performed by them: but for this neglect,
the county in its corporate capacity, should not be punished, nor
does any liability attach to the county to pay the money in any
way other than that pointed out in the statute. Should it be
thought that the offending supervisors ought to respond
personally in damages, which is certainly very questionable,
still there is no principle which would graduate the damages to
the deficiency which would arise from the mortgage in question;
and for aught the court can know, the money possibly might not be
collected in that way. Besides, the law does not contemplate
satisfaction in any other manner than by an assessment upon the
taxable property of the county. An action, therefore, is not the
appropriate and specific remedy." (The People v. The Supervisors
of Columbia County, 10 Wend. 363.)
This opinion, so far as it denies the liability of the
county to an action may be somewhat questionable. Yet is has been
approvingly cited as authority, "for holding that when a
particular method of raising money for local public purposes is
prescribed by statute, the party entitled to receive it, has a
right to the full and perfect execution of the power conferred,
which may be enforced by the writ of mandamus." (The People v.
Mead, 24 New York, 123.)
And when money is collected of the taxpayers, and placed in
the hands, or subject only to the order of the commissioners, for
the purpose of being paid to certain creditors, in pursuance of
specific statutory directions, and the commissioners refuse to
make the appropriation, mandamus is an appropriate remedy,
although an action might be maintained against the county. (The
People v. Mead, et al., 24 New York, 121.)
But if the money had not been actually raised, and paid by
the taxpayers into the treasury, and the commissioners whose duty
it is, refuse to credit and allow a legal claim against the
county, there are cases favoring the view that mandamus will not
lie. (Ex parte Lynch, 2 Hill, 45; 1 Tenn. Rep.,114; 2 Cowen's
Rep.,444; 1 Wend. 325; 10 John. 484; 10 Wend. 367; 6 Hill, 243;
12 John. 415; 19 John. 259; 1 Kernan's Rep., 573.)
The case of ex parte Lynch, 2 Hill's Rep., 45, was an
application for a mandamus to compel the supervisors of the city
and county of New York to audit and allow the salary of an
associate judge of the general sessions. The law organizing the
court, provided a salary of $2,000 to be paid by the council, out
of the city treasury, in quarterly payments. By a subsequent law
"the mayor, recorder, and aldermen of the city, as supervisors of
the city and county of New York, are directed to audit and allow
the judges' account for arrears of salary on or before the tenth
day of July thereafter; and after that time quarterly, as such
salaries might become due." It was maintained by the court, that
an action might be sustained by the relator against the
corporation, and that therefore mandamus would not lie to compel
the supervisors to audit and allow the claim. This is certainly a
strong case against the right to issue the writ in any case where
an action can be maintained against the county, and at first
thought, it may seem a little difficult to reconcile it with the
case of The State of Ohio v. The Commissioners and Auditor of
Clinton County, 6 O.S. Reps., 280, before cited, and The People
v. Mead, et al., 24 N.Y. Reps., 121. But a distinction may be
made between compelling the commissioners to perform the specific
duty imposed by statute, or ordering a levy to pay a claim, the
amount of which is fixed, and its payment directly provided for
by law, and the compelling them to audit and allow a claim not
definitely fixed by law. In the former case, the law has fixed
the amounts to be paid. A suit and judgment could not make the
obligation more obligatory or definite. And if put into judgment,
would yet bein no better condition for compelling payment,
without the aid of mandamus. In the latter case, however, as the
amount is not definitely fixed by law, and the existence of the
obligation, and the propriety of allowing it, depending upon
facts and circumstances, the claimant should pursue his remedy by
action. The case of Burnet v. The Auditor of Portage County, 12
O. Rep., 54, before cited, seems to favor this distinction.
It seems unquestionable that a right of action for damages
generally exists against public officers, who refuse or neglect
to perform their duty, in favor of those persons whose rights are
injuriously affected by such neglect of duty. But this remedy by
action against the officers is ofsuch doubtful and uncertain
character as not to supersede that by mandamus. The unliquidated
damages to be assessed by ajury would not necessarily be the
amount due the party. (The People v. Mead et al., 24 N.Y. Rep.,
120; ex parte Lynch, 2 Hill's Rep., 45; Strong, petitioner, 20
Pick.Rep., 497.)
In the case of McCollough v. The Mayor of Brooklyn, 23 Wend.
458, it was said by Judge Bronson, that "although as a general
rule a mandamus will not lie where the party has another remedy,
it is not universally true in relation to corporations and
ministerial officers. Notwithstanding they may be liable to an
action on the case for a neglect of duty, they may be compelled
by mandamus to exercise their functions according to law."
And in the case of The People v. The Supervisors of Columbia
County, 10 Wend., 363, it was said that "should it be thought
that the offending supervisors ought to respond personally in
damages, which is certainly very questionable, still there is no
principle which would graduate the damages to the deficiency
which would arise from the mortgage in question; and for aught
the court can know, the money, possibly, might not be collected
in that way."
But in apparent opposition to this doctrine, see the case of
The People v. The Supervisors of Chenango County, 1 Kern. Rep.,
573, it was at least strongly intimated by the court in that case
that where the relator has a right of action against the officers
or other person promoting the injury, that mandamus will not lie.
The decision of the court in that case, however, was also based
on another ground, namely: That the supervisors had no legal
control over the delinquent parties to compel them to make
restitution.
In that case town assessors had assessed the relator for his
personal estate, when he was not a resident of the town at the
time when the assessment was made. On such assessment the board
of supervisors of the county imposed a tax upon the relator,
which was collected by a seizure and sale of his property upon
their warrant issued to the collector. The relator sought to
compel, by mandamus, the supervisors to audit and allow a claim
in his favor against the county, for the amount of the tax thus
collected. It was maintained by the court that the assessors
acted without jurisdiction in assessing the relator's property,
and were liable, and might have been prosecuted for their acts,
in subjecting the relator to the payment of an unfounded and
illegal tax; that the relator had, therefore, a legal remedy by
action. And the legitimate inference to be drawn from the
reasoning of the court is, that in the opinion of the court the
case was not such as should take it out of the general rule, that
a party cannot have a remedy by mandamus when he has a legal
remedy by action.
In the case of Kendall v. Stokes et al., 3 Howard's U.S.
Rep., 87, the doctrine which seems to be maintained is, that when
a public officer, whose duty it is to audit and allow an account,
or perform any other ministerial duty, refuses to do so, the
party who is entitled to the allowance is interested personally
in the performance of the duty, may resort to his remedy by
mandamus to compel the officer to perform his duty, or he may
prosecute a suit for damages against such officer. And it is
distinctly held that if he prosecutes his remedy by mandamus, it
is a bar to his action for damages.
In that case Kendall, who was the Postmaster General, had
refused to credit the defendants in error on the books of the
Post office Department, with certain amounts to which they were
entitled. They had sued out a writ of mandamus, and procured a
peremptory writ compelling him to give the credit, which he had
done; and afterwards they brought suit against Kendall to recover
their damages, sustained by reason of his refusal to do so prior
to the time of the issuing of the mandamus.
Chief Justice Taney, in delivering the opinion of the court,
said: "Now, the former case was between these same parties, and
the wrong them complained of by the plaintiffs, as well asin the
case before uson the fifth count, was the refusal of the
defendant to enter a credit on the books of the Post-office
Department for the amount awarded by the solicitor. In other
words, it was for the refusal to pay them a sum of money to which
they were lawfully entitled. The credit on the books was nothing
more than the form in which the act of Congress, referring the
dispute to the solicitor, directed the payment to be made. For
the object and effect of that entry was to discharge the
plaintiff from so much money, if on other accounts they were
debts to that amount; and if no other debt was due from them to
the United States, the credit entitled them to receive at once
from the government the amount credited. The action of mandamus
was brought to recover it, and the plaintiffs show by their
evidence that they did recover it in that suit. The gist of the
action in that case was the breach of duty in not entering the
credit, and it was assigned by the plaintiffs as their cause of
action. The cause of action in the present case is the same, and
the breach here assigned, as well as in the former case, is the
refusal of the defendants to enter this credit. The evidence to
prove the plaintiffs cause of action is also identical in both
actions. Indeed, the record of the proceedings in the mandamus is
the testimony relied on to show the refusal of the Postmaster
General, and the circumstances under which he refused, and the
reason he assigned for it. But where a party has a choice of
remedies for a wrong done to him, and he elects one, and proceeds
to judgment, and obtains the fruits of hisjudgment, can he, in
any case, afterwards proceed in another suit for the same cause
of action? It is true that in the suit by mandamus the plaintiff
could recover nothing beyond the amount awarded; but they know
that when they elected the remedy.
"If the goods of a party are forcibly taken away under
circumstances of violence and aggravation, he may bring trespass,
and in that form of action recover not only the value of the
property, but also what are called vindictive damages - that is,
such damages as the jury may think proper to give to punish the
wrong-doer. But if instead of an action of trespass, he elects to
bring trover, where he can recover only the value of the
property, it never has been supposed that after having prosecuted
the suit to judgment, and received the damages awarded him, he
can then bring trespass upon the ground that he could not in the
action of trover give evidence of the circumstances of
aggravation, which entitled him to demand vindictive damages. The
same principle is involved here. The plaintiffs show that they
have sued for, and recovered in the mandamus suit, the full
amount of the award; and having recovered the debt, they now
bring another suit upon the same cause of action, because in the
former one they could not recover damages for the detection of
the money. The law does not permit a party to be twice harassed
for the same cause of action; nor suffer a plaintiff to proceed
in one suit to recover the principal sum of money, and then
support another to recover damages for the detention. * * *
Whenever, therefore, a mandamus is applied for, it is upon the
ground that he cannot obtain redress in any other form of
proceedings. And to allow him to bring another action for the
very same cause after he has obtained the benefit of the
mandamus, would not only be harassing the defendant with two
suits for the same thing, but would be inconsistent with the
grounds upon which he asked for the mandamus, and inconsistent
also with the decision of the court which awarded it."
The same case makes exceptions to the general rule, that a
proceeding in mandamus is a bar to an action for damages, or
rather limits and confines it to actions against the officers who
neglect or refuse to perform their duties. For it maintains that
where one has been unlawfully excluded from an office, and has
been compelled to resort to an action by mandamus, to procure his
admission thereto, he may, notwithstanding, maintain an action of
assumpsit or case, to recover the emoluments which had been
received by another, or of which he had been deprived during the
time of exclusion.
While all the cases agree that mandamus will not lie, where
the relator has a complete, specific, and adequate remedy by
action in some otherform, yet there seems to be no general rule
for determining when an action against the delinquent officer
would be a complete, specific, and adequate remedy. The mere fact
that an action will lie, does not supersede the remedy by
mandamus. For although an action may be sustained, yet from the
facts and circumstances of the case, it may be doubtful whether
such action will afford the relator a complete remedy; in which
case mandmaus should be awarded.
It has been maintained as a well settled principle, that
when the legislature, under the right of eminent domain, and for
the prosecution of works for public use, authorize an act, or
series of acts, the natural and necessary consequence of doing
which will be damage to the property of another, and provide
amode for the assessment and payment of the damages occasioned
bysuchwork, the party authorized, acting within the scope of his
authority, and not guilty of carelessness or negligence in
executing such work, is not a wrong doer, and an action will not
lie as for a tort. The remedy, therefore, is by the statute, and
not at common law. And when the remedy pointed out by the
statute, is an assessment of damages by the county commissioners,
and they neglect or refuse to proceed and perform such duty,
mandamus will lie to compel them.
This principle was recognized and applied in the case of
Dodge and another v. County Commissioners of Essex, 3 Metcalf's
(Mass.) Rep., 380. That wasan application for a writ of mandamus
to the commissioners, requiring them to assess damages for the
petitioners against the Eastern Railroad Company. The facts, as
set forth in the petition, and admitted by the answer of the
commissioners, were, that the plaintiffs were owners of a lot
land in Beverly, with a house thereon, situated near the limits
of the railroad, but not within them; that the railroad was near
a ledge of rocks; that the company by the necessary operation of
blasting said ledge of rocks, for the purpose of grading their
railroad, greatly damaged, and nearly destroyed the petitioners
house. It was contended on the part of the Railroad Company, that
under the provisions of the statute respecting railroads, one
cannot have compensation for damages, whose lands have not been
directly taken for the site of the railroad, nor for supplying
materials for its construction, and that the remedy for a damage
like that of the petitioners, where no land was taken or
appropriated, was not to be sought by an application to the
county commissioners, but by an action at common law. The
statutory remedy in such case was as follows: "Every railroad
corporation shall be liable to pay all damages, that shall be
occasioned by laying out, and making and maintaining their road,
or by taking any land or materials as provided in the preceding
section."
Shaw, C.J., in delivering the opinion of the court, said:
"The court are of opinion, that the provision is broad enough to
embrace damages done to real estate, like that which the
petitioners have sustained. It is like the case of a house
situated on the brink of a deep cutting, so as to become
insecure, and so that it is necessary to remove it. It is a
damage occasioned by the laying out and making of the road. * * *
An authority to construct any public work carries with an
authority to use the appropriate means. An authority to make a
railroad, is an authority to reduce the line of the road to a
level, and for that purpose to make cuts, as well through ledges
of rock as through banks of earth."
"In a remote and detached place, where due precaution can be
taken to prevent danger to persons, blasting by gunpowder is a
reasonable and appropriate mode of executing such a work; and if
due precautions are taken to prevent unnecessary damage, is a
justificable mode. It follows that the necessary damage
occasioned thereby to a dwelling house or other building, which
cannot be removed out of the way of such danger, is one of the
natural and unavoidable consequences of executing the work, and
within the provision of the statute."
"Of course, this reasoning will not apply to damages
occasioned by carelessness or negligence in executing such a
work. Such careless or negligent act would be a tort, for which
an action at law would lie against him who commits or him who
commands it. But where all due precautions are taken, and damage
is still necessarily done to fixed property, it alike is within
the letter and the equity of the statute, and the county
commissioners have authority to assess the damages. This court
are therefore of opinion that an alternative writ of mandamus be
awarded to the county commissioners, to assess the petitioner's
damages, or return their reasons for not doing so."
And where county commissioners refuse or neglect to estimate
the damages caused by laying out a railroad, turnpike, or
highway; such duty being enjoined upon them by law, a mandamus
would issue to compel them to do it, that is to exercise their
judgment upon the matter. But having estimated damages, if either
party should be dissatisfied, and apply for a jury, the granting
of the warrant would be a ministerial duty, enforceable by
mandamus, when the remedy by appeal is given to the dissatisfied
party. And if they refuse to assess damages because in their
judgment the petitioner does not own the land, the latter is
entitled to the judgment of a jury upon the question, and a
mandamus lies to compel them to issue a warrant therefor, when
the issuing of such warrant is necessary to enable the party to
take his appeal, and it is the duty of the commissioners to issue
it. (Carpenter v. Bristol, 21 Pick. 258; Smith v. The Mayor and
Alderman of Boston, 1 Gray, 72.)
And when county commissioners, in laying out a highway, or
ordering specific repairs thereon, make no return of damage
sustained by a party who has applied to them to estimate his
damages, this is equivalentto a return that he has sustained no
damage. (8 Cush. (Mass.) Rep.,360.)
It has been held that the writ of mandamus is a high
prerogative writ, and it being granted or refused, is within the
sound discretion of the court. While this, as a general rule is
correct, yet, when the relator has a clear, vested, legal right
to the thing withheld, he is entitled to the remedy by mandamus,
although to give him the thing, would not appear to be strictly
inaccordance with the principles of equity.
This doctrine was recognized and acted upon in the case of
Harrington v. The County Commissioners of Berkshire, 22 Pick.
263. The facts were fully stated in the opinion of the court.
Shaw, Ch.J., in announcing the opinion of the court, said: "The
petition and answer on which this question arises, presents a
novel and in many respects a peculiar and extra-ordinary case for
the consideration of the court. It appears that the county
commissioners, in pursuance of the powers vested in them by law,
having given this notice required, and conformed generally to the
rules of law, adjudicated upon the common convenience and
necessity of a public highway, and thereupon located and laid out
the same, passing to some extent over the land of the petitioner.
The usual orders for making and fitting the road for public use
were passed. The petitioner applied for a jury to assess his
damages; and after one attempt, which proved unsuccessful on
account of some informality, a verdict of the sheriff's jury,
assessing his damages, was duly returned to the court of Common
Pleas and accepted, and certified in due form of law to the
county commissioners.
"Before the proper time had arrived for granting an order on
the treasury for the payment of the complainant's damages, and
before his land had been entered upon, or his possessions
distrubed, measures were taken for the discontinuance of the
highway, and subsequently an order or decree was passed
discontinuing it. Therefore the county commissioners declined to
issue an order for the payment of the complainent's damages, on
the ground that as his land had not been entered upon, and after
the order of discontinuance never could be entered upon, he had
sustained no real damages, and was not entitled to claim payment
according to the verdict. It is now contended for the respondents
that it would be highly unjust and inequitable to require the
public to pay the whole value of the land for a naked right or
privilege which they have never used, and now never can use; and
that it is equally unjust for the complainant to demand a sum of
money by way of damage, for a loss which he has not and cannot
sustain."
"If there were any middle course to be adopted, if any
apportionment could be made by which the complainant could be
indemnified for the actual trouble and expense to which he has
been subjected, and the public exempted from further liability,
it would be more in accordance with principles of equity; but
there seems to be no legal principle in which this can be done.
It was suggested that he should claim damages for the
discontinuance; but the discontinuance, as it relieves his estate
from a burdensome service,to which it was subject by perpetual
easement, is a benefit and not a damage; indeed, the damage given
on laying out the road is a compensation for imposing this
service upon the land. It is, therefore, a question of legal
right to the sum fixed by verdict, and the adjudication upon it,
by the court having jurisdiction of the subject; and it appears
to be a necessary consequence that the complainant is entitled to
the whole amount or to no part of it. If the adjudication
discontinuing the road vacated all the prior proceedings,
including the verdict and judgment of the court of Common Pleas
accepting it, that judgment is in effect reversed and annulled,
and then the complainant can make no claim under it; otherwise it
remains in full force, and he is entitled to the entire benefit
of it. Such being the question, the court are of opinion that the
petitioner, on the return and acceptance of the verdict, acquired
a vested right to his damages, and that the subsequent
discontinuance of the highway did not divest or defeat that
right. The subsequent discontinuance of the highway is a new,
distinct, substantive proceeding, which does not annul or
disaffirm the former proceeding, but on the contrary assumes and
acts upon it as a valid proceeding. It was a contingency
contemplated at the time of laying out the highway, inasmuch as
the easement for the public was always held at the will of the
public, to be exercised by their competent agents. When it is
exercised, it grants no new rights to the owner of the property,
but simply leaves him in the enjoyment of a right which was
always his, as incident to his ownership."
"The enjoyment of this latter right, therefore, cannot
deprive him of his former vested right to damages - the one being
entirely consistent with the other. The commissioners, therefore,
were not justified in withholding from the complainant his order
for the payment of his damages, conformably to the verdict
accepted by the court of Common Pleas and certified to the
commissioners. The court do therefore order that an alternative
writ of mandamus issue, directed to the county commissioners,
requiring them to draw an order on the county treasury for the
payment to the complainant of the amount due to him pursuant to
the verdict, or to make a return of the writ, setting forth the
reasons and causes why they have not done it."
It was also maintained by the respondents that even if they
were not authorized to withhold payment, yet mandamus was not the
proper remedy. That the remedy by writ of mandamus was an extra-
ordinary remedy, to be resorted to with great caution, and ought
not to be had when there is any other adequate remedy in a
regular course of judicial proceeding. But it was held by the
court that it was, to say the least, doubtful whether any action
of debt or case would lie in favor of the complainant, as the act
required to be done on the part of the county commissioners was a
ministerial and not a judicial act, and that, therefore, it was
the opinion of the court that the complainant was entitled to the
remedy prayed for.
And where a town was entitled by a statute to a jury in
relation to the location of a highway, and the jury impaneled
were unable to agree, and were discharged, it was held that the
town was entitled to another jury, although the statute made no
express provision for such acase; that the statute intended to
secure to parties, situated in the condition of the petitioners,
the right of a trial by jury: that such trial necessarily implies
an effectual trial, resulting in a verdict; that a hearing before
a jury impaneled for the purpose, but who cannot agree in a
verdict, is not such trial; that a power must necessarily rest
somewhere to order a new hearing in such case; that by reasonable
construction of the statute and analogy to other cases, such
power was vested in the county commissioners, and that as they
declined to exercise it, in a case where the petitioners were
entitled to the benefit of it, the writ of mandamus ought to
issue. (The Inhabitants of Mendon v. The County of Warcester, 10
Pick. 235.)
And where, by law, it is made the duty of county
commissioners to take the supervision of a highway, to determine
whether it should remain or be discontinued, and if they should
not discontinue ti, it was their duty to complete, at the expense
of the county, such parts as remained unfinished, re-assess the
damages on such parts, and cause the same to be paid by the
county, it was held that a mandamus would lie to compel them to
perform such duty.
Neither is it necessary, in such cases, that there should be
any law, specifically directing them to take the supervison of
that particular road.
A law providing that "whenever any highway is already laid
out, or altered, in any county, which it would be the duty of
such county to make, under the provisions of the law, and the
working of the same is not already commenced by said
commissioners of highways, or by them contracted to be made, it
shall be the duty of said county commissioners to do and perform
all the acts in relation to the making of the same, which it
would be incumbent upon the said commissioners of highways to do
and perform if this act had not been passed," imposes upon the
commissioners the duty of taking supervision of a highway,
previously established by a court of Sessions.
But upon the petition of a town for a mandamus to the county
commissionersto take supervision of, and to finish a part of a
highway which had formerly been laid out by the court of
Sessions, an alternative mandamus was issued, to which the
commissioners made return that the part in question, which was a
bridge, had been built by the town, with the aid of individuals,
and that the expense had been voluntarily incurred by the town,
and the individuals, after the enactment of the statute providing
for the payment ofsimilar expenses out of the county treasury;
and that the bridge, immediately after its erection, was
dedicated to the public without any expectation on the part of
the town that the expense would be reimbursed by the county; it
was held, that as the grant was made by the town freely and
deliberately, with a full knowledge of the law, and on a good
consideration, namely; the voluntary contributions of others
towards an object of common and public benefit, that the return
disclosed a fair legal reason for not performing the act
complained of. (The Inhabitants of Springfield v. The County
Commissioners of Hampden, 10 Pick. 59.)
Where county commissioners act in a judicial capacity upon a
question properly submitted to their judgment, mandamus will not
lie to reverse or control their decision. Therefore, where the
petitioners represented that they were the owners of certain
land; that the Blackstone Canal Company, by virtue of their act
of incorporation, had located and constructed a reservoir to the
Blackstone canal, by reason of which the petitioners' land was
overflowed with water, and rendered good for nothing; that
certain commissioners, appointed pursuant to the act, had made an
estimate of the damages sustained by the petitioners with which
they were dissatisfied, and upon their application to the county
commissioners, a jury was empaneled to estimate the damages; that
the jury awarded to the petitioners a larger sum than the one
awarded by the commissioners, and the verdict was returned to the
county commissioners, and was by them accepted and affirmed; and
that the petitioners, at the time of the acceptance and
affirmation of the verdict, moved the county commissioners in
writing, to allow them their legal costs in the suit, but that
the motion was overruled; wherefore the petitioners prayed the
court to issue a writ of mandamus to the county commissioners,
ordering them to allow and tax for the petitioners their costs in
the suit, and to enter up judgment therefor; it was held by the
court, that the action of the commissioners in the matter was a
judicial act, over which the court had no power of control, and
therefore a mandamus would not lie. (Chase et al. v. The
Blackstone Canal Company, 10 Pick. 244.)
So, when the alternative mandamus recited that the relator
was appointed Secretary of State to take the census for a certain
town in the county pursuant to the provisions of the statute,
that he thereupon entered upon and discharged the duties of such
office until the same was completed, as required by the act; that
the relator was actually and necessarily employed in the
discharge of the duties of said office, and in taking the census
and enumeration of the inhabitants of said town as required by
said act, fifty-nine days; that the relator presented his account
for such services to the defendants, duly made out and verified
as rerquired by law, at a regular session of the defendants for
allowance, and that the defendants refused to audit or allow the
said account. It then commanded the defendants to audit and allow
the said account for fifty-nine days' services as such marshal at
two dollars per day, or show cause why.
The defendants returned that at the annual meeting of said
board, held pursuant to law, the said relator presented to said
board his account for fifty-nine days' services, which he claimed
to have rendered as marshal in the town of Lima, in said county,
under and by virtue of the act within mentioned; that said board,
pursuant to the statute in such case made and provided, proceeded
to examine, settle, audit, and allow said account, and did
examine, settle, audit, and allow the same.
That upon such examination and settlement the said board
ascertained and believed, found and determined, that said relator
was not actually and necessarily employed as such marshal, under
and by virtue of said act, fifty-nine days; and in like manner
ascertained and believed, found and determined, that said relator
was not so employed over forty days; and thereupon said board of
supervisors audited and allowed said account of said relator for
the sum of eighty dollars pursuant to the statute, and their
duties in that behalf.
This return was demurredto for insufficiency. The court,
however, held taht in the examination and decision of the
question of the number of days the marshall was actually and
necessarily employed, the board of supervisors acted judicially;
and if they committed an error in their decision, it found
noground for the writ of mandamus; that such determination must,
in that proceeding, be regarded asfinal. (The People v. The Board
of Supervisors of Livingston county, 25 Barb. 118.)
And where county commissioners, after adjudging that a town
way was required by the wants of the town, and giving notice that
they will lay it out, lay out only a part of it, being of opinion
that the remainder has been rendered unnecessary, since the
adjudication, by the construction by the town of another nearly
parallel town way, will not be compelled by mandamus to complete
it. The question of what the public convenience required is
peculiarly within the province of the commissioners, and the
court will not reverse their judgment in t he matter. (HIll v.
The County Commissioners, 4 Gray,414.)
But where a statute creating and defining the duties of
commissioners of highways provided that "all roads laid out, but
not worked, at the time this act takes effect, shall be subjected
to the supervison and review of the commissioners aforesaid, and
the said commissioners shall have all the powers, and the
counties be subject to all the liabilities in reference to such
roads as are provided for new roads by this act," it was held
that the legislature here had respect to roads before location by
the court of Sessions, but not finished; including as well those
which had been partly worked as those on which no work had been
done, and they meant to transfer all authority on the subject to
the commissioners; that if they deemed it proper that the road be
made as laid out, it gave them power to do so; or if they thought
it not proper to so work it, they possessed the power to
discontinue it; and that a mandamus would lie to compel them to
finish or to discontinue it, as they might think expedient. (The
Inhabitants of Springfield v. The Commissioners of, &c, 4 Pick.
68.)
It has also been held, that where commissioners of a county
have authority by statute to issue bonds, and are rquired to levy
a tax to pay the interest coupons as they become due, and having
issued such bonds, they neglect or refuse to assess the tax, or
pay the interest, a writ of mandamus is the proper legal remedy,
and that the Circuit court of the United States have authority to
issue such writ of mandamus against the commissioners, when it is
necessary, as a remedy for suitors in such court. (Knox County v.
Aspinwail, 24 How. (U.S.), 376.)
The court will not grant a mandamus when it would be
fruitless and ineffectual to relieve the relator.
Therefore when a mandamus was prayed for, to issue against
the county commissioners to compel them to make an order on the
treasury in favor of the relator, for a sum of money due from the
county to him, and the commissioners should show for cause, that
there was no money in the treasury to pay the order, it was held
that this was a sufficient cause. The court, in delivering the
opinion of the court, said: "Why draw an order on an empty
treasury? The treasurer would refuse payment, and there the
matter would end. No money can come into the treasury but by tax
on the county, and that tax the commissioners cannot lay, except
by the co-operation of other persons, even supposing that the act
authorizing the laying of a tax for the purchase of the bridge.
If the object be obtainable by mandamus, the first step must be
to orderthe proper persons to lay the tax, and it must be laid
for the whole sum at once, &c." (Commonwealth v. Commissioners of
Lancaster County, 6 Bin. 5; Dodd v. Miller, 14 Ind., 433.)
To warrant the granting of a mandamus, the applicant must
have a clear legal right. And therfore a bidder in proposals
issued by county commissioners for estimates for any public
works, acquires no legal right, or cause of action, to enforce
which a mandamus will be issued, until the contract has been
actually made with him. (The People v. The Croton Aqueduct Board,
&c., 26 Barb. 240; The People v. The Canal Board, 13 Barb. 432.
But see The People v. The Contracting Board, 27 New York Reps.,
378.)
The applicant must not only have a clear legal right to the
thing demanded, but he must be without any other specific legal
remedy. Therefore where a party overtaxed, appeals in dueform
from the assessors to the county commissioners, who refused to
entertain his appeal, or to make any record of their proceeding
in the matter, it was held that he was not entitled to mandamus,
for the reason that under the statute he might have appealed to
the court of Common Pleas. (James v. Commissioners of Bucks
County, 13 Penn. State Reps., 72.)
And where the supervisors of a county have neglected to
perform any duty required of them at their annual meeting, and
they are authorized to hold special meetings for the transaction
of business, at such times and places as they may find
convenient, they may be compelled by mandamus to meet again, and
perform it. Their neglect to perform their duty imposed by law,
at the time requied, cannot modify the statute. They, or their
successors, are boundto do what was required, and on failure to
perform it, may be compelled by mandamus, and in some cases are
liable to a penalty for their neglect. The ommission to perform
their duty at the proper time, does not is such case render a
substantial compliance with the statute impossible, as they
ortheir successors inoffice can be convened at another time. (The
People v. The Supervisors, &c.,4 Selden's (N.Y.) REps., 318.)
It would, however, be otherwise, if they were authorized to
perform the duty at a specified time which had passed.
It is not necessary to the issuing of a mandamus commanding
county commissioners to perform official duties neglected by
them, that the complainant should have previously demanded of
them to perform their duty. (Commonwealth v. Commissioners, &c.,
Penn. S.R. 237; and see same,277.)
Where boards of supervisors exercise both judicial and
ministerial functions, and they have gone forward and performed
the judicial act, and the result of such act raises an
obligation on them to perform a ministerial act, which they
refuse to perform, a mandamus is the proper remedy to compel
performance on their part; and this may be done, although they
may have reconsidered and endeavored to reverse and annul such
judicial act.
Inferior jurisdictions, such as boards of supervisors, which
derive their powers from the statute, have no power or authority
to review, reverse and annul their own judicial action when it
has once been legally exercised. It has, therefore, been held
that when a board of supervisers have, by a legal quorum of their
members, voted upona resolution "concerning the raising of
money," under the statutory authority to apportion the tax to be
raised among the several towns and wards of the county, "as
seemed to them equitable and just," and such vote has been
entered by their clerk in the book of records required to be kept
by them, they have exhausted their discretion over that subject;
that they have thereby executed a judicial act, which is in
effect a judgment final and conclusive as to any power they can
exercise over it by way of review or reversal. And if the board,
after having passed a resolution of that nature, which has been
entered in their book of minutes by the clerk, reconsider their
action by a resolution for that purpose, and by another
resolution again apportion and equalize the assessment of value
in the several towns and wards, upon a new and different basis,
the second apportionment will be held a nullity; and the board
may be compelled, by mandamus, to attach collector's warrants to
the tax books made out according to the original resolution. (The
People v. The Board of Supervisors of Schenectady, 35 Barb.
408.)
It has also been held that mandamus will lie to compel
supervisors to renew a license to a ferry owner, who is entitled
to it, when such supervisors, through a mistake of the law,
refuse to do so. (Thomas v. Armstrong, 7 Cal. 286.)
CHAPTER XVIII:
MANDAMUS TO THE OFFICERS OF A MUNICIPAL CORPORATION
It seems that mandamus is the proper and appropriate remedy
to compel a municipal corporation to make provision for the
payment of interest due upon bonds issued by it in payment of a
subscription to the stock of a railroad company, by the
assessment and collection of the necessary taxes; and therefore
where an act of assembly directed that provision be made for the
payment of the principal and interest of the debt thus incurred,
by the assessment and collection of a tax, the proper officers of
such corporation may be compelled by mandamus to assess and
collect a tax for the payment of the interest. (Commonwealth v.
Pittsburg, 34 Penn. S.R. 496; State v. Davenport, 12 Iowa Reps.,
335.)
The same doctrine was maintained in Graham et al v. Maddox
et al., 6 American Law reg. 620. It is there said that the duty
of the city council to levy and collect the tax to pay the
principal and interest of such bonds, is mandatory, leaving in
the city council no discretion. It was also held that it was not
an available legal objection to the payment of such bonds and
their interest, that the money was squandered, or that the
enterprise has resulted disastrously, and the tax would therefore
be onerous; that no individual could be excused from the payment
of a debt because his business in which he had embarked his
borrowed money had proved a failure; and that a corporation can
have no immunity in this respect above an individual.
Neither is it sufficient answer to the relator's petition
for a mandamus, he being the holder of the bonds, to aver that
the road has never been completed; that the company has forfeited
their charter, and by gross mismanagement have placed it out of
their power to comply with their engagement in this respect. (11
B. Monroe, 154.)
So in Maddox v. Graham, 2 Met. (Ky.) 56, it was held that
where a city council is required by law to collect a tax upon the
real and personal property of the city, sufficient in amount
annually to pay off the interest upon bonds isued by the city in
payment of a subscription of stock to a railroad company, and the
council refuse to do so, and there is no specific legal remedy
provided for non-performance, mandamus may be maintained to
compel them to discharge that duty, at the instance of holders to
whom the bonds have been passed by the company; and it seems that
an express refusal in terms is not necessary to put the
defendants in fault; it will be sufficient that their conduct
makes it apparent that they do not intend to do the act required.
So in Carroll v. Board of Police, 28 Miss. (6 Cush.) 38, it
was held that mandamus was the only remedy by which to compel the
board of police to discharge their duties as public officers, in
levying the tax required by law to pay the debt ofthe county; and
the writ ought to be granted upon all occasions where the law has
established no specific remedy, and where justice and good
government require it.
And where a city council appointed commissioners to assess
damages to private property, by reason of opening a street, who
reported their assessment and a taxation of adjoining property to
pay the same, and the city opened the street but refused to
collect the tax, it was held that mandamus was proper to compel
them to do so. (State v. Keokuk, 9 Iowa, 438.)
And where it is made the duty of a town or city council to
elect certain municipal officers, and they neglect or refuse to
do their duty in that respect, mandamus is the proper remedy.
Therefore, where at a meeting of the town council the minority of
the councilors present delivered voting papers to the mayor for
certain persons to be elected alderman; the 20may and the
majority of the town councilors had been advised that the day was
not the proper one for the election, the mayor consequently
declined to proceed with the election, and no election was
declared, it was in fact the duty of the council to have
proceeded to the election of alderman on that day, had they known
the law. It was therupon held by the court that the act of the
minority was not the act of the 20town council; that the election
had not been held, but that there had been no election, and that
consequently a mandamus might issue, calling upon the council to
proceed to elect alderman. (Regina v. Bradford, 4 Eng. L. & Eq.
Rep., 194.)
And where it is made the duty of a city comptroller, upon
the presentation of a certificate from the auditing board,
allowing a claim against the corporation to draw his warrant on
the treasurer, if he refuse to do his duty in that respect he may
be compelled by mandamus. But until the auditing board has
allowed the claim and certified to the comptroller, he cannot be
proceeded against by mandamus, although it may appear that the
relator has a valid claim against the corporation.
Therefore, where it appeared that the relator had a valid
claim against the city, and the comptroller had refused to draw
his warrant on the treasury, and the relator had thereupon asked
for a writ of mandamus to compel him, the writ was refused, on
the ground that as the law had created an auditing bureau in the
financial department, with an auditor of accounts as the chief
officer, whose duty it was to "audit, revise, credit, and settle
all accounts in which the city is concerned as debtor or
creditor," it was not the duty of the comptroller to draw his
warrant on the treasury for the payment of any claim until it had
been allowed by such board. (The People v. Flagg, 17 N.Y.R. 584.)
Mandamus is a proper remedy for one who has been illegaly
removed from a municipal office. But when one has practically
deserted, abandoned, and repudiated an office, and followed his
own pursuits not connected with, but inconsistent with the duties
of the office, he cannot compel the proper authorities to
reinstate him in office. Therefore, where an act was passed to
establish a Metropolitan Polic district, bringing into being a
new system, all of whose officers were then first introduced into
the administration of the authority ofthe State government under
new names, and with greatly enlarded duties and territorial
jurisdiciton, and subject to the authority and control of a new
board of police; and also providing that the police inthe cities
of New York and Brooklyn, officers and patrolmen shall hold
office and do duty under the provisions of the act, and as
members of the police force of the Metropolitan Police District,
it was held that although no acceptance or new oath of office or
manifestation of consent on the part of an old member of the
police force was necessary in order to entitle him to the right
to exercise the duties of a patrolman under the new act, yet as
the relator had withdrawn from such police force; had disclaimed
taking such office and repelled its duties; had followed his own
pursuits having no connection with the police service for a
period of two years, a mandamus ought not to be granted to
reinstate him in the office; that by his conduct he had clearly
vacated the office, and that the Board of Police could lawfully
fill his place. (The People v. The Board of Metropolitan Police,
26 N.Y.R. 316.)
The case of Tatham v. The Wardens of Philadelphia, 5
American Law Reg. 379, was a petition pryaing that a writ of
mandamus be awarded commanding J. E. harned and others, wardens
of the port of Philadelphia, to cause to be defined upon the
ground, at the 20expense of the applicant, the line of low water
bounding their jurisdiction of a certain lot in Philadelphia of a
certain description, bounded upon the line of low-water mark by
the river Delaware. The petition recited that the petitioner was
the owner of the lot of ground so described, and that he made
application in writing to the board of wardens requesting them to
cause said line of low-water mark to be defined, which the
application refused, and that on the first day of September last
he again applied to the board, asking to reconsider their
rejection of the prayer of his petition which was laid upon the
table by the respondents; and that they still continue to refuse
to define for him the line bounding their jurisdiction upon the
land mentioned in his petition.
The statute required that the board of wardens of the port
of Philadelphia, on the application of the owner of land bounded
by the Delaware and Schuylkill rivers within the limits of the
port, shall cause to be defined upon the ground, at the expense
of the applicant, the line of low-water mark bounding their
jurisdiction.
It was held that the act to be done was simple and specific;
and so far from leaving it to the discretion or judgment of the
wardens, the language of the law was imperative, and that the
petitioner had a clear right to build his wharf to low-water
mark, and that he had a right to compel the wardens to go forward
and define the line in order to enable him to do so with safety.
It was further held, that the answer setting up the
impossibility of fixing the line of low-water mark as prayed for
by the petitioner was insufficient, as it was not pretended that
an effort had been made to comply with the directions of the act,
nor the nature or character of the disability set out, that the
court might judge whether it was a mere disinclination to perform
the duty required, or an actual impediment, which rendered it
impossible for the respondents to do that which the law says they
shall do.
And where the authorities of a borough are bound to keep its
streets in repair, they may be compelled to do so by mandamus.
(Uniontown v. Commonwealth, 34 Penn. S.R. 293.)
So in Hammon v. Covington, 3 Met. (Ky.) 494, it was held
that where the city council is required by law to keep a street
in repair, if they suffer it to so far fall into disrepair as to
prevent passage thereon in carriages, and to render it dangerous
for people having houses thereon to pass to and fro, and to
endanger said houses, that although the abuttors thereon have
cause of action by reason of the special injury done to them, yet
they may also have mandamus to issue to the council to compel
them to make the proper repairs. And so where an act was passed
by the legislature, entitled, "An act to widen Fulton street,
between Red Hook lane and Court street, in the city of Brooklyn,"
and providing that "Fulton street, between Red Hook lane and
Court street, is hereby widened as follows;" and also providing
that the common council of Brooklyn might take certain steps
toward carrying out the act, and bestowed certain powers upon the
courts for the same purpose, it was held that `shall' may be
substituted for `may' in the interpretation of a statute, when
the good sense of the entire enactment would require the same;
and that the rule applies when the statute established an
improvement, and devolves upon any person or persons, or a
corporation, the performance of such acts as may be requisite to
insure its completion; that applying this rule to this case, the
statute was peremptory upon the common council to pursue the
designed improvement to its consummation, and that a mandamus
would lie at the suit of a citizen and tax-payer of Brooklyn to
compel them to do so. (People v. Common Council of Brooklyn, 22
Barb. 404.)
Mandamus is also the proper remedy to obtain possession of
the seal, books, papers, muniments, &c, the property of the
corporation, held in possession by an ex-mayor; and a pretended
intrusion into or retention of the office of mayor will not
justify the withholding of such property so as to compel them to
do so. (The People v. Kilduff, 15 Ill., 492.)
And where the only pre-requisite required to entitle a
person to receive from the mayor a license to engage in the
business of broking emigrant passengers, was the giving of a bond
of a certain description, the mayor can only exercise his
judgment as to the sufficiency of the bond. If that be found by
him to be sufficient, he is bound to issue the license, and if he
refuse, he may be compelled by mandamus. (The People v. Perry, 13
Barb. 206.)
It has also been held that mandamus is the appropriate remedy
when an officer of a municipal corporation undertakes to set at
naught the corporate will, by refusing to execute or deliver the
bonds of the corporation in payment of the price of lands
purchased by the corporation; and that the writ may also be
applied for by the vendor, who is beneficially interested in
enforcing the contract, after a resolution has been passed by the
common council directing the officer to carry out and complete
the purchase. Therefore, where the relator offered to sell to the
city of New York certain property, either for cash or corporate
bonds, and the corporation, by resolution, accepted the offer,
the payment of the price to be made in corporate bonds, it was
held that this constituted an agreement where by payment was to
be made in bonds, and that mandamus would lie against the
comptroller to compel him to execute them. Barnard, J., said:
"The remedy by mandmaus is both appropriate and proper in this
case. An officer of the corporation undertakes to set at naught
the corporate will. Surely, the corporation must have some legal
remedy to compel its subordinate to obey its lawful behests. It
is impossible to conceive of any legal remedy adequate for the
purpose other than a mandamus. Assuming that the corporation
could have sued out the writ, is there any objection to allowing
to the party who is beneficially interested in enforcing the
corporate will expressed in his favor, the use of the same remedy
which the corporation would be entitled to use? There does not
appear to be any well founded objection so long as the
corporation assents to the proceedings being taken against the
officer." (The People v. Brennan, 39 Barb. 536.)
It has also been held that if there are words of permission
in the charter of a public corporation, to do an act which is
clearly for the public benefit, they are obligatory upon the
officers of the corporation. Therefore, where a charter declared
that the mayor and jurats of an ancient town might hold a court
of record for the holding of pleas, but which had been long
disused, the court of King's Bench granted a mandamus to compel
such court to be held, at the instance of an inhabitant of the
town, though he was not a corporator.
So where a charter granted to the steward and suitors of a
manor power and authority to hold a court for the purpose (among
other objects) of hearing and determining pleas of debt, &c., but
the court had been disused for that purpose during fifty years,
it was held that a mandamus would lie to compel the court to be
held again for such purpose, notwithstanding the non-user. (Rex
v. Hastings, 1 D.& R., 148; 5 B.& A., 692; 2 D. & R. 176.)
CHAPTER XIX:
MANDAMUS TO OTHER OFFICERS
Mandamus will not lie to compel public officers to perfect
an incomplete contract which will be binding upon the State,
especially where the subject or object of the contract has passed
by sale from the State into the hands of some other person.
Therefore, where the relator set forth that in the year 1853
he made application to the then school fund commisioner to
purchase certain lands then for sale in his office, and was
informed by said commissioner that the lands were already pre-
empted by one R., but that the relator might enter the lands
subject to the pre-emptor's rights, which was done, the relator
paying part of the price and taking the commissioner's receipt
therefor; that said R. failed to make good his re-emption,
andthat afterwards the relator applied to the commissioner for
the requisite papers in respect to the title to the land,
tendering performance of his duties in the premises; taht said
commissioner refused to issue the requisite papers, and said he
should offer the lands for sale at auction; that relator refused
to receive back his money, and that the respondent was the
present school commissioner, it was held that the relator could
not thereby obtain the aid of the court to perfect an inchoate
contract which would be binding upon the State, especially as it
appeared that other persons had purchased the land, in one case,
of the then present commissioner without notice by him or them of
the relator's claim. (Chance v. Temple, 1 Clarke (Iowa), 179.)
In fact, it seems to be a well established principle that
although a mandamus may sometimes lie against a ministerial
officer to do some ministerial act connected with the liabilities
of the government, yet it must be when the government itself is
liable, and the officer himself has improperly refused to act. It
must be in a case of clear and not doubtful right. (Reeside v.
Walker, 11 Howard's Rep., 272.)
Upon this principle that it has been held that a mandamus
will not be issued on the application of an individual to any
officer of the government, commanding him to approve of a
contract, entered into with that individual by public officers,
when such approval is necessary in order to make the contract
binding upon the State. If the contract is complete, mandamus
will lie to compel the proper officer to execute it in good
faith. (Ante, 132-3.)
In the case of The People v. The Canal Board, 13 Barb. Rep.,
432, was a motion for a peremptory mandamus, to be directed to
the Canal Board, commanding them to act and approve or disapprove
of the contract awarded to and made with the relator, as stated
in the affidavit on which the motion was founded; and to approve
or disapprove of the terms upon which, and in the manner in
which, the board of Canal Commissioners, State Engineer and
Surveyor and division engineer had contracted with the said
relator to do the work in the said contracts specified. The
relator, among other things, alleged that in pursuance of an
advertisement for proposals for work on certain canals therein
described, and his proposal in the manner and form described in
his motion, the board of Canal Commissioners, together with the
State Engineer and Surveyor, and the division engineer having
charge of that portion of the canal where the work was to be let,
awarded to the relator a contract for certain work therein
described; that he was advised by his counsel and believed, that
in order to render the contracts so made with him valid or
binding, it was necessary that the Canal Board should approve of
the terms upon which, and the manner in which, the said Canal
Commissioners, State Engineer and Surveyor and division engineer
had contracted with him to do the work mentioned; that he had
presented to said board his application, praying in substance
that said board would examine the prices established in said
contracts, and approve or disapprove of the same, but that said
board had hitherto wholly neglected so to do.
Cady, J., in delivering the opinion of the court, said: "The
State has not, as yet, made itself liable to the relator to
execute or deliver by its officers to him any contract whatever;
and I have been unable to find any case in which, on the
application of an individual, a mandamus has been issued to any
officer of the government, commanding him to make a contract with
that individual binding on the State. If no action can be
commenced and maintained against the State to compel the
performance of a contract without a previous statute authorizing
such action, it would seem to follow that no action can be
maintained against an officer of the State to compel him to make
or complete a contract on behalf of the State."
And where the constitution of the State declared that "all
contracts for work or materials on any canal shall be made with
the person who shall offer to do or provide same at the lowest
price, with adequate security for their performance;" and by
legislative enactment it was also provided that the contracting
board "shall have power, and it shall be their duty to let by
contract, under such regulations as said board shall prescribe,
to the lowest bidder or bidders, who will give adequate security
for the performance of the contract," the repairs of any
completed section of the canal. And under this law the
contracting board advertised for proposals to keep a certain
canal in repair four years and a half. The notice indicated the
form and character of the security which the board would consider
adequate - that is, stated that every proposal must be
accompanied by a certificate of deposit in some bank in good
credit; that $4,000 in cash had been deposited therein to the
credit of the Auditor, which would be retained as security for
the performance of the contract. The relator made a proposal
which was somewhat lower in price than that of any other person,
but it was not accepted. A contract was made with one Case, who
was the next highest bidder. The relator delivered with his
proposal a certificate that he had deposited in the Salt Springs
Bank of Syracuse $4000 payable to the order of the Auditor, but
the certificate did not state, in so many words, that he had
deposited such amount `in cash.' Case, whose bid was accepted,
delivered a similar certificate containing, however, the words
`in cash.' It was inferred by the court that this difference in
the form or phraseology of the certificate was the reason
assigned for rejecting the relator's bid, and accepting a higher
one.
Although the court of Appeals was unable to justify such a
decision of the board, yet it held that the board could not be
compelled by mandamus to reverse their action, or to make a
contract with the relator, after they had already made another
contract with another person. (The People v. The Contracting
Board, 27 N.Y.R. 378.)
And where the authority of a corporation to sell and convey
land rests wholly upon statutory law, its provisions must be
strictly compled with; and if in any part of the proceedings the
provisions of the statute have not been strictly complied with,
the proceedings are irregular, and the purchaser takes no title;
and if any part of the proceedings have been irregular, mandamus
will not lie to the officers of the corporation to compel them to
complete the proceedings. Therefore, where a statute authorized
the corporation of a city to sell lands for taxes, and to execute
a lease of the same to the purchaser, if the owner neglected to
redeem within two years from the time of sale; and it was also
made the duty of the city, six months before the expiration of
the two years after such sale, to cause an advertisement to be
published at least once in each week for four weeks successively
in two newspapers, that unless the lands sold were redeemed by a
certain day, they would be conveyed to the purchaser; and the
corporation failed to publish such notice after the sale as so
required; it was held that the failure to give such notiece made
the proceedings irregular, and mandamus would not lie to the
officers of the corporation to compel them to execute the lease,
though the two years had expired. (The People v. The Mayor, &c.,
of New York, 10 Wend. 395.) Mandamus is the proper remedy for the
neglect or refusal of a school district to raise and pay over to
the district from which it has been divided the proportional
amount for retaining the school house. (School District no. 2 v.
School District No. 1, Wis. 333.)
So, mandamus lies to compel a township clerk to correct, by
an amendment of his records, and errors, whether arising from
design, mistake, or accident, on the application of any person
interested. (20 Conn. R. 290.) A mandamus, however, was refused
to compel a justice to amend his record, where the amount was
insignificant and it was of no benefit to the petitioner. (Hall
v. Crossman, 1 Williams (Vt.) Rep. 487.)
But it will lie to compel him to deliver the records to his
successor in office, if he refuses to do so, on the application
of his successor and his showing himself to be clerk. (Taylor v.
Henry, 2 Pick. 397; Commonwealth v. Atheom, 3 Mass. 287.)
So, where it is the duty of a town clerk to record deeds or
other papers, or to file papers, and he refuses to do so, he may
be compelled to perform such duty by mandamus. (Strong's Case,
Kerby's Rep., 345; 7 John's Rep. 549.)
Mandamus is also an appropriate remedy to compel the
collectors of the public revenue to proceed and perform their
duties. For, unless there was some summary process to compel the
performance of these duties, the treasury would become
embarrassed, and great public mischief might ensue. And where by
law it is made the duty of the treasurer, in case the collector
neglects to collect a tax, to issue his warrant of distress
against such collector for the amount of the tax assessed, if the
treasurer refuses or neglects to so issue his warrant, he may be
compelled to do so by mandamus.
Therefore where the law provided that if the tax collector
failed to do his duty, the treasurer should issue a warrant
directed to the sheriff, authorizing a distress of the
collector's goods and chattels, and the imprisonment of his
person, and the petitioners for a mandamus represented, that at a
meeting of the inhabitants of a certain school district in the
town of Dudley, on a certain day named, a vote was passed to
purchase a convenient spot of land for a school house, and to
build a new school house thereon; that the petitioners were
chosen a committee to make the purchase, and to build the house;
that it was also voted to raise a certain sum named for those
purposes; that the clerk of the district, in due time certified
this last vote to the assessors of the town, and requested them
to assess the sum mentioned upon the inhabitants of the district;
that the assessors did assess said sum in pursuance of the vote
and the clerk's certificate thereof, and committed to one
Ingraham, a constable and collector of Dudley, the list of the
assessment, with a warrant for collecting and paying in the same
to the treasurer of the town, or his successor, on or before the
first of March, 1826, and certified their doings to Lee, the
respondent, then and ever since, the treasurer of the town; that
the peitioners purchased a convenient spot of land on a certain
day, and thereafter, in pursuance of the vote of the district,
contracted for the building of a school house thereon, and
promised in writing to pay the builders a certain sum of money
when it should be finished; that said Ingraham had neglected to
comply with the warrant, and the town treasurer had refused to
pay to the petitioners the before mentioned sum because the same
was not yet collected and paid into the treasury; that the
petitioners thereupon requested the treasurer to issue his
warrant of distress against the collector, pursuant to the
statute, but that he had refused so to do; that the school house
was finished, and the expenses incurred were still due from the
petitioners, as the building committee; the petitioners therefore
prayed that a mandamus might issue to the treasurer, requiring
him to issue his warrant of distress against said Ingraham,
pursuant to the statute.
It was held that the collector ought to have proceeded in
collecting the tax; and that not having done so, he had subjected
himself to the warrant from the treasurer, and granted the writ
accordingly.
It was also held, that a return showing that the tax was
illegally raised and assessed, by reason of the insufficiency of
the warning of the inhabitants of the district, of the meeting at
which the tax was voted; that the tax was not assessed upon any
valuation taken with a view to that tax; and that the person to
whom the warrant calling the meeting was directed, had certified
in general terms that he had duly warned the inhabitants, without
stating the time or manner of the warning, was not sufficient
return. It was held by the court, that the treasurer was merely a
ministerial officer; that he had no authority to pause in the
execution of his duty, on the 20suggestion of errors or mistakes
in the proceedings. That if the facts upon which he is to act are
properly certified to him, he has no discretion, but is obliged
to issue his warrant. That whether the tax be legal or illegal,
whether duly assessed or not, are not subjects for him to inquire
about. That if there be a tax, an assessment, a warrant to the
collectors, all certified to him by assessors duly qualified to
act, his duty is clear, and he is peremptorily commanded by the
law to discharge it.
It was, however, maintained, that as the issuing of the writ
depended in a measure upon the discretion of the court, it was
proper for the court to look into the facts stated in the return
of the officer against whom the mandamus is prayed, in order to
determine whether the exercise of his duty, in issuing a warrant
of distress against the collector mentioned in the return, ought
or ought not to be compelled.
And that if it should manifestly appear that a tax was
illegally granted or assessed, so that the officers required to
collect it would have no authority, or the persons taxed would
have a right to restitution by action, without doubt the court
would withhold the exercise of its power, rather than throw the
parties into an expensive field of litigation. (Walfon v. Lee, 5
Pick. 323.)
And where the selectmen of the town, having authority to so
do, surveyed a highway, and laid a survey thereof in writing
before the inhabitants of the town, at a lawful town meeting, and
the survey was accepted by the town, and recorded; but the
selectment neglected and refused to make satisfaction for the
damage done to those over whose lands the highway passed, as
required by law; and also neglected and refused to open
the 20same, although the time for that purpose prescribed by law
had long since passed, it was held that mandamus would lie to the
selectmen, requiring them to proceed and open the highway. (Treat
et al. v. The Inhabitants of the &c., 8 Conn. 243.)
A mandamus to compel the commissioners of highways to open a
road should not, however, be resorted to where its necesary
effect would be to subject them to an action of trespass. If
therefore, the facts shown on the application are of a character
to establish a want of jurisdiction, so as to make the
proceedings entirely void, they furnish a sufficient ground for
not awarding the peremptory mandamus, unless, for some good
reason, the parties are estopped from inquiring into these facts.
(People v. Commissioners of Seward, 27 Bard. 94; Ex parte
Clapper, 3 Hill, 458.)
So where it is made the duty of the township treasurer to
pay orders drawn on him by the township board of education out of
moneys in his hands as such treasurer, if he refuses to do so, he
may be compelled by mandamus. Therefore, where the board of
education - acting upon a real or pretended supposition that the
local directors of the sub-district were neglecting to discharge
their duties - assumed the exercise of those duties, under the
provisions of the statute in such cases provided, and employed
the relator to teach a school in the sub-district, which he did
for three months, without being notified by the local directors
to desist, and at the expiration of that time the board of
education gave him an order on the defendant, who was township
treasurer, for his wages, purusant to the statute, and the local
directors notified the defendant not to pay it, and threatened
him with a suit if he did, whereupon he refused to pay it, and
the ground of the notification was that the local directors had
not neglected their duties, and that, therefore, the board of
education had unlawfully usurped their authority, it was held
that although it was by no means certain that the board of
education was justified in superseding the directors, and that
the relator, to be entitled to payment for services rendered,
must show that his retainer was by competent authority; yet, as
in that case the retainer was by a board exercising, de facto,
the powers of local directors, without any objection made known
to the relator against their so doing, he was entitled to payment
of his order, and ought not to be turned around to sue the
individuals composing the board. A peremptory mandamus was
therefore awarded, commanding the defendant as treasurer to pay
the order. (Case v. Wresler, 4 O.S. Rep., 561.)
So where the township board of education of a certain
township determined to build a new school house in one of the
sub-districts of the township, selected and purchased a site
therefor and instructed the local directors of the sub-district
to build the house on the site so selected, and also to sell the
old school house and site, and the local directors of the sub-
district proceeded to build the new school house, but refused to
erect it on the site where the old school house stood, and the
township board proceeded contemporaneously with the local
directors, and built a new school house on the site selected by
themselves, and in the autumn employed a teacher to teach the
common school of the sub-district in the new house they had
built, and refused to have any school kept in the new house built
by the local directors, and in the spring the board of education
certified to their clerk that there was due to the relator for
teaching the school as aforesaid the sum of $88, and the clerk
thereupon gave to him an order on the township treasurer for said
sum, and he presented the same to the treasurer, who refused to
pay it, it was held that mandamus would lie to compel the
treasurer to pay the order, although the local directors also
employed a teacher to teach the common school of the sub-district
in the new school house built by them and had given him a
certificate of the amount due him for wages as such teacher,
which had been presented to the clerk, who gave such teacher an
order on the treasurer, and the treasurer had paid it. It was
said by the court that where the local directors persisted in
building a school house and keeping up a school on the 20old site
and in refusing to build upon the new site after the township
board had notified them of its resolution to sell the former, and
after it had required and directed them to build upon the latter,
they were guilty of a degree, not only of neglect, but of
insubordination, which, under the provisions of the statute in
such cases provided, justified the board in assuming all the
powers and duties which would otherwise have developed on the
local directors. (The State of Ohio v. Lynch, 8 O.S. Rep., 347.)
But where the return to the alternative writ showed that
before issuing and service of the writ, the defendant's term of
office as township treasurer expired, and a successor having been
elected and qualified, he had paid over to that successor all the
public funds in his hands, and such payment was made in good
faith, it was held that it was a good defense to the writ, and
that the relator must be left to assert his rights against the
defendant's successor in office. (The State of Ohio v. Lynch, 8
O.S. Rep., 347.)
The township treasurer is, no doubt, in certain cases,
justified in looking behind the order drawn on him, and if
illegal, refuse its payment.
Therefore, where an alternative mandamus was issued,
commanding the defendant, as township treasurer, to pay to the
relator the sum of twelve dollars, for services as a teacher of a
union school district, composed of parts of the townships of
Tallmadge and Stow, in Summit county, and Franklin and Brimfield,
in Portage county, to which the defendant made return: "That no
such union school district as that mentioned in said writ, as
being composed of parts of the townships of Tallmadge, and Stow,
in Summit county, and parts of Franklin and Brimfield, in Portage
county, ever legally existed; but the same as to that portion
thereof which lies in the township of Tallmadge aforesaid, was
embraced in said union school district, and against their express
dissent;" it was held, that as the statute conferring the
authority to establish union school districts upon the trustees
of the several townships, required of a majority of each township
board of trustees to concur, with a like majority of each, and
of all the several township boards of trustees; and that no
organized township, or any part of it could therefore be forced
into a school district against the consent of its trustees; the
treasurer was justified in refusing to pay the order, the writ
was dismissed. (The State of Ohio v. Wright, 17 O. Rep., 32.)
Mandamus will also lie to compel township trustees to make a
proper distribution of funds in their hands, to be divided among
certain religious societies, if applied for before the
distribution is made. (11 O. Rep., 24.)
Therefore, where the proceeds of certain township lands were
appropriated to each religious society of the township, according
to the number of its members, for that year, and it was made the
duty of the township trustees to make the distribution, and they
refused to distribute any dividend of the proceeds to a certain
society, on the ground that it was not a religious society within
the meaning of the actk, it was held that if such society was in
fact within the intent ofthe statute, the trustees might be
compelled by mandamus to make a division to such society, if
applied for before the funds had been exhausted. But a return by
the trustees, setting forth that their predecessors in office,
for the years, the proceeds for which the relators claimed a
dividend, comsidering that the society were not entitled to any
portion of the rents, had actually divided and paid out to other
societies all the money received for those years, so that nothing
of the proceeds of those years remained in the treasury, upon
which orders could be drawn, it was held that the return was
sufficient, and peremptory mandamus was refused. (The State of
Ohio v. Trustees, 2 O.R., 108.)
So mandamus will lie to compel a town council to leby a tax
to pay an indebtedness of the town. And where an incorporated
town had been indebted, and afterwards the act creating the
corporation was repealed, but the repealing act contained the
following provision: "Provided, that the officers of said town
shall have power, by their corporate name, to sue and be liable
to be sued, to levy and collect all taxes necessary to discharge
the present liabilities of said town; and provided further, that
all rights acquired, and liabilities incurred by virtue of said
act (incorporating said town) shall remain valid in all respects
as if this act had not passed." It was held by the court that the
repeal of the charter did not discharge the officers of the
corporation from the duties of collecting the debts due toe town,
and paying off liabilities it had incurred. That it was the duty
of those in office when the charter was repealed, to provide for
the payment of the debts of the town, and that no resignation
would absolve them from the discharge of the duties imposed.
(Gorgas v. Blackburn et al., 14 O.R., 252.)
Mandamus also lies to the city council to compel it to issue
the necessary orders on the treasury, for the drawing of school
funds, when the board of trustees have properly certified to the
correctness of accounts, and such city council refuse to do their
duty in that respect. (The State v. The City of Cincinatti et al,
19 O.R., 178.)
And where the law gives to the sheriff the right to the
possession of the county jail, and the custody of the prisoners
therein, and the under-keeper, who has been removed by the
sheriff, refuses to give up the control and custody of the
prisoners therein confined, and to vacate and surrender
possession of the jail, mandamus will lie to compel him to do so.
(Burr .v Norton, 25 Conn. 103.)
So, mandamus lies against a township school committee to
compel them to admit to the public schools one who is entitled to
the benefits and privileges of such schools, and who is refused
admission thereto.
And where there wa in a will donating a sum of money for the
support of a school for the inhabitants of a certain town a
clause excepting from the benefits of the school certain persons
therein named, and their descendants for a term of one hundred
years, it was held by the court that the clause was repugnant to
the nature of the grant, and contrary to law and public policy,
and was therefore "inoperative and void:" and a mandamus was
allowed to compel the school committee to admit to the school a
person thus excluded by the will. (Nourse v. Merriam et al., 8
Cushing's Rep. 11.)
And where the trustees of a school district improperly and
illegally admit colored children or immoral persons to the
school, mandamus, it seems, is the appropriate remedy to compel
the trustees to exclude them. But in such cases it should be
alleged and shown that the trustees knew that such persons were
attending the school, and that there were objections to their
attendance. (Lewis v. Henly, 2 INd., 332.)
But where school directors are directed and empowered by law
"to establish a sufficient number of common schools for the
education of every individual above the age of five and under
twenty-one years in their respective districts, who may apply for
admission and instruction, either in person, or by parent,
guardian, or next friend," and the directors meet and consider
and pass upon the propriety of establishing a school at a certain
point in the town, and come to the conclusion that such school
would be inexpedient and injurious, they act in a deliberative
capacity, and therefore mandamus will not lie to compel them to
reform their decision. And this is upon the principle, that where
a person acts in a judicial or deliberative capacity, he may be
ordered by mandamus to proceed to do his duty; but the court
cannot direct him what manner to decide. ( 4 American Law Reg.
163.)
And where by law it is enacted, that when no special
contract shall be subsisting between the borough and county
relative to the prisoners sent from the burough to the county
prison, the borough shall pay to the county a proportionate share
of the expenses of the conveyance, transport, and maintenance of
such persons, including therein repairs, alterations, and
addition to the prison, it was held that where it was shown that
no special contract existed, and prisoners had been sent from the
borough to the county jail, mandamus would lie commanding the
council of the borough to pay to the person duly appointed by the
proper authorities of the county to receive it the borough's
share of such expenses, &c.; and if no sufficient money should be
in their hands for payment thereof, to proceed to cause a rate to
be made and levied for the purpose of making payment. (Regina v.
The Mayor, &c., 20 Eng. Law and Eq. R. 59.)
CHAPTER XX:
MANDAMUS TO PRIVATE CORPORATIONS
A corporation has been defined to be an intellectual body,
created by law, composed of individuals united under a common
name, the members of which succeed each other, so that the body
continues the same, notwithstanding the change of the individuals
who compose it, and which, for certain purposes, is considered as
a natural person. (Angell & Ames on Corporations, 1.)
There are two kinds or classes of corporations. One is
denominated public, and is founded for public purposes, and
generally has for its object the government of a portion of
political powers. Towns, cities and boroughs are familiar
examples of this kind of corporation.
A private corporation is one created for the advancement of
some private end, such, for instance, as a bank, turnpike or
railroad corporation. But as their objects, to a greater or less
extent, affect the whole community, and they derive their
existence from the consent of the public, they in a measure
partake of the public nature; so much so that they may be
compelled by mandamus to perform their duties imposed upon them
by law, although it is a fundamental principle that mandamus only
lies in a matter of public concern. Accordingly, in case of
public corporations, it has been decided that a mandamus lies to
compel them to proceed to the election of a new mayor at any time
after the charter day has passed without such election, where the
former mayor, having power to do so, holds over and refuses to
convoke an assembly for that purpose, unless, indeed, the charter
restrains the right of electing to a particular time. (4 Burr
Rep., 2011.) The same principle would apply to other officers of
a corporation. (Rex v. Bedford, 1 East's Reps., 80.)
In case of a public corporation it has also been decided
that if a corporation officer, duly elected, refuse or neglect to
take upon himself the execution of his office, a mandamus will
issue to compel him to do so, but he may show any sufficient
excuse for not accepting the office. (Angell & Ames on
Corporations, 431; 1 East. R., 80.)
The law upon the right to resort to mandamus to compel a
corporation to admit or restor a person to an offcie in such
corporation is of ancient date, for in Bacon's time it was laid
down as a general rule, "that where a man is refused to be
admitted, or wrongfully turned out of any office or franchise
that concern the public or the administration of justice, he may
be admitted or restored by mandamus." And on this foundation it
has been adjudged and admitted in a variety of cases, that if a
mayor, alderman, burgess, common councilman, freeman, or other
person, members of a corporation, having a franchise or freehold
therein, be refused to be admitted, or being admitted be turned
out or disfranchised without just cause, he may have his remedy
by writ of mandamus. (4 Bacon's Abridgement, 500.)
But in order to warrant the issuing of the writ or admit or
to restore one to office, it must appear that the office claimed
is a public office. And it has often been a matter of controversy
what shall be said to be a public office. It has, however, long
since been decided that a town clerk, recorder, and clerk of the
peace, a constable, and even a sexton, a parish clerk, and a
clerk of the city works, were officers of so public a character
as to come within the rule.
The writ has often been made use of, in modern practice, to
admit or restor to an office; and the rule, as above laid down,
seems to have been unchanged. (The People v. The Board of
Metropolitan Police, 26 N.Y. Rep.316; Harwood v. Marshall, 9 Ind.
Rep. 83; Banton v. Wilson, 4 Texas Rep. 400.)
But when an office is already filled by a person who has
been admitted and sworn, and is in by color of right, a mandamus
is never issued to admit another person. The proper remedy for
the applicant is by a quo warranto. (People v. Scrugham, 20 Barb.
(N.Y.) 302; Bonner v. The State, 7 Ga. REp. 473; The King v. The
Mayor of Colchester, 2 Dunn & East's Reps. 259.)
Mandamus is also the appropriate remedy to resort to when a
person has been refused admission to, or has been removed from,
an office in a private corporation.
Therefore, where the complaint of the relator showed that he
was one of the trustees of an acedemic school duly incorporated
by law, and that he had been removed and expelled from said
office by his associate trustees, and it appeared from the return
that they possessed no power to remove one of their number; or if
so, that the causes of removal were entirely insufficient, a
peremptory mandamus was allowed, directed to the other trustees,
commanding them to restore the relator to his office as one of
the board of trustees. It was also held that the place of a
trustee in an eleemosynary corporation, though no emoluments are
attached to it, is yet a franchise of such a nature that a person
improperly dispossessed of it is entitled to redress by such
writ. (FUller v. The Trustees of the Academic School in
Plainfield, 6 Conn. 532.)
It has also been held, that a writ of mandamus may be issued
against a religous society, commanding them to restore the
relator to his standing as a trustee and member of the
corporation, when he has been illegally and improperly removed.
(Green v. The African Methodist Episcopal Society, 1 Serg. &
Rawle's Rep. 254; Douglas Rep. 158; 2 Binn, 441, 448; 5 Binn,
486; 2 Serg. & Rawle's Rep. 141; 10 Barr. Rep. 357; 15 Penn.
251.)
It seems, also, t