that he should have raised the point in appellate proceedings. This the court denied, but on this precise point, however, there is authority to the contrary.

§ 43. Custody of children. In Rust v. Vanvacter (46) the petitioner sued out a writ of habeas corpus to obtain the custody of his infant child, which had been placed in the care of the respondent, the grandmother of the infant, upon the decease of the petitioner's wife. Since then the petitioner had remarried, owned a house and was engaged as a mechanic at good wages, sufficient to enable him to support the infant. The grandmother replied that the child had been committed to her when an infant of about five months, that she was now nearly nine years old, and had come to look upon her as her mother. Quoting Hurd, the court said: "The term imprisonment usually imports a restraint contrary to the wishes of the prisoner and the writ of habeas corpus was designed as a remedy for him, to be invoked at his instance to set him at liberty, not to change his keeper. But in the case of infants, the illegal custody has been treated, at least for the purpose of allowing the writ to issue, as equivalent to imprisonment, and the duty of returning to such custody as equivalent to a wish to be free." The court held that "the father is the natural guardian of his infant children, and in the absence of good and sufficient reasons shown to the court or judge, such as ill usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education," and so refused to reverse the decision of the court below giving the father the custody of the child.

(46) 9 W. Va. 600.

§ 44. Release on bail. In State v. Everett, and State v. Potter (47) the defendants had been released on habeas corpus because the charges in the warrants for their commitment were uncertain. The appellate court decided that the judge granting the discharge had acted erroneously, and said: "In the exercise of this general power, which in England appertains to the court of the king's bench and here to the court of general sessions, there is no doubt that a judge before whom a prisoner is brought will look upon the commitment, if necessary, and will bail or remand, according to circumstances. And in admitting to bail, he should pay due regard to the statute regulating bail and should not admit to bail a person who is there expressly declared to be debarred from it, without some particular circumstances in his favor. He should not undertake to determine fully upon the guilt of a prisoner and set him at liberty, without bail and without day, however imperfectly the offense may have been charged in the commitment, or however strong the circumstances in his favor proved by affidavits or collected from examination. Such a power does not exist in any judge, in term time or at chambers, when any offense at all is alleged; such power would be superior to the laws, wherever lodged. It would to all purposes be a dispensing power, as effectual and dangerous as any that has been claimed or exercised under the most arbitrary governments."

§ 45. Who entitled to the writ. By the very nature of things the person imprisoned is entitled to the writ. Likewise it may be granted to a parent for his child, to a mas

(47) Dudley (Ga.) 295.

ter for his apprentice, to a guardian for his ward, and to a wife for her husband; and in many cases the writ has been allowed to third persons where a proper interest has been shown, but it will not be allowed at the instance of a mere stranger.

SECTION 6. INJUNCTION.

§ 46. Special limitation of treatment here. The general treatment of the injunction will be found under Equity Jurisdiction in Volume VII of this work. It is desired here only to distinguish it from the other extraordinary remedies and to give an idea of its use against administrative officials.

§ 47. An equitable remedy. The five extraordinary writs considered so far have been legal writs granted generally by the court of king's bench, where the king was supposed to sit in person, and so termed prerogative writs; but any account of administrative law in the United States, at least, would be incomplete without at least a brief reference to the great remedy of the courts of equity, the injunction. Indeed so important has become its use in affairs of public concern that the cry of "government by injunction" is a familiar one. That cry was occasioned by its frequent use in suppressing lawless acts such as mob-violence, boycotts and picketing in connection with strikes, and its use in that connection might well be considered here if it were not that its use there is analagous to its use in abating nuisances and is properly treated along with that subject. But omitting that side of its use as a remedy in the administration of government, there remains a large field where it is a public law rather than a private law remedy. For the general char

acteristics of the writ which apply to it both in the public and the private law, the reader is referred to its treatment under Equity Jurisdiction in Volume VI of this work.

§ 48. Distinguished from mandamus. High contrasts the injunction with mandamus as follows: "It is only when we come to consider the objects and purpose of the two writs that the most striking points of divergence are presented. An injunction is essentially a preventive remedy, mandamus a remedial one. The former is usually employed to prevent future injury, the latter to redress past grievances. The functions of an injunction are to restrain motion and enforce inaction, those of mandamus to set in motion and compel action. In this sense an injunction may be regarded as a conservative remedy, mandamus as an active one. The former preserves matters in statu quo, while the very object of the latter is to change the status of affairs and to substitute action for inaction. The one is, therefore, a positive or remedial process, the other a negative or preventive one" (48).

§ 49. When granted in lieu of mandamus. But where a mandamus is impossible, for instance, in the case where the time to act has not yet come, relief may be had by mandatory injunction closely resembling that which is generally obtained by mandamus. Thus in State v. Houser (49) a mandatory injunction was asked against the secretary of state to compel his recognition of the nominees of the one of the two rival Republican conventions of the state which had been recognized by the national party organization, and the propriety of the remedy was

(48) High, Extraordinary Legal Remedies, sec. 6. (49) 122 Wis. 534.

recognized by the court. It said: "It must be conceded that by the general rule there is no effective legal remedy to prevent the alleged threatened wrongful act or to redress it if commission thereof were permitted. The remedy by mandamus is not available, generally speaking, in advance of some actual default in respect to a clear legal duty. If special circumstances may create an exception to that rule, as suggested in the case cited, whether this case would fall within such exception is sufficiently involved in doubt to warrant a court of equity in opening its doors so far as it can afford a remedy, if the commission of a great wrong is in fact impending as alleged." The court said that if they should wait until the official were to take action, only fourteen days might elapse before the election, which would not give time for proceedings by mandamus.

§ 50. Distinguished from prohibition. The essential features distinguishing these two writs have already been given (§ 12, above). They are illustrated by Bluffton v. Silver (50), where a property owner had applied for a prohibition against the town and the contractor to prevent the carrying out of a contract for the laying of a sidewalk in front of his property, which he claimed to be illegal. The court said: "It may properly be observed that no case was made for the issuance of a writ of prohibition. The town council had full jurisdiction in the premises. Prohibition, if proper in the case at all, should have been obtained to prevent the making of the contract for want of jurisdiction, not the execution of it after it had

(50) 63 Ind. 262.