is no adequate and specific remedy at law. The same confusion as to ministerial and judicial duties appears in the discussion of mandamus as is criticised above, but the same rule applies, and the neglect of any duty, whether to do an act or to exercise a judg ment, gives rise to an action in mandamus. The two actions have the same foundation, and the criteria of one may be used as criteria of the other.31

It might be supposed that the fact that there was a remedy at law in an action in tort would defeat the action in mandamus. But when the right injured is to have some act done, such as certifying to an election to some public office, an action for damages is not adequate and does not enforce the right injured. "The adequate remedy," one court says, "which will bar mandamus must be such as reaches the end intended, and actually compels the performance of the duty in question. It must be equally as convenient, beneficial and effective as the proceeding by mandamus. The remedy, by repeated actions at law, to recover damages for a constantly recurring and continued violation of duty is not adequate."32 "An action on the case, for neglect of duty," therefore, “will not supersede that by mandamus, since that cannot compel a specific act to be done, and is not equally convenient, beneficial and effectual."33

Even where the end sought was the payment of money, actions for mandamus have been sustained, where the duty neglected was the drawing of war

31 Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609, cited and approved in Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem on Public Officers, sec. 659.

32 Richmond v. Brown, 97 Va. 26, 32 S. E. 775.

33 Fremont v. Crippen, 10 Cal. 212, 70 Am. Dec. 711; Raisch v. Board of Education, 81 Cal. 542, 22 Pac. 890; Ex parte Rogers, 7 Cow. 526; McCullough v. Mayor, 23 Wend. 461; People v. Supervisors, 10 Wend. 363.

rants for the payment of money,34 because here the duty was not the payment of the money, but the drawing of the warrants, and the creditors were entitled to the performance of that duty. Mandamus will lie to compel the performance of public as well as private duties, while tort lies only to remedy a private wrong. An action in tort will lie when the duty neglected is the mere payment of money, and where the injury results from an act of commission, to redress which mandamus will not be sustained. With these exceptions these two actions are coextensive, and either remedy may be sought, though bringing one excludes the other.35

The nature of the duties of the chief officers of our government is such that those to whom they are due would much prefer to have them performed than to receive damages for their nonperformance. Hence, it is that we have few cases in tort, while compara. tively many cases in mandamus may be found, and as the same acts would give cause for an action in tort or mandamus, these latter cases will be used as examples in the following discussions.

§ 157. Ministerial and Judicial Acts Distinguished.— Difficulty frequently arises in drawing the dividing line between ministerial and judicial acts, especially in that class of the latter acts which are performed by boards or officers not in the strict sense judicial officers, but whose acts are of a quasi judicial character. A general formula ought to be adopted by the use of which such acts are distinguishable. There is no

34 Raisch v. Board of Education, 81 Cal. 542, 22 Pac. 890. See Ray v. Wilson, 29 Fla. 342, 10 South. 613; State v. Board of Education, 27 Ohio St. 103; State v. Wilson, 17 Wis. 687; State v. Roderick, 23 Neb. 505, 37 N. W. 77; Furbish v. County Commrs., 93 Me. 117, 44 Atl. 364.

35 State v. Lipa, 28 Ohio St. 665.

trouble in distinguishing between pure judicial and ministerial acts, as judicial acts are those which are performed by courts in the exercise of the judicial power conferred upon them. A judicial act is an act performed by a court with reference to the rights of persons or property-properly brought before it either by the voluntary appearance of parties or by the prior action of ministerial officers.

A ministerial act is one which a person or officer performs in a prescribed manner, in accordance with the mandate of legal authority, as by statute or by order of court, or by order of a superior, without regard to or the exercise of his own judgment upon the propriety of the act being done. It is none the less ministerial even though the person performing it may have to satisfy himself that the state of facts exist under which it is his right and duty to perform the act.36 This distinction becomes important in considering the liability of judicial officers and quasi judicial officers when it is claimed that the act performed is ministerial, and these questions have been before the courts many times. In cases where officers or boards are called upon to decide according to the best of their ability, and according as things shall appear to them, it is claimed that this is an exercise of judicial power.37 This principle has been applied to assessors in determining what property is subject to taxation, and the value of taxable property, 38 so that there would be no individual liability for a mistake

36 Pennington v. Streight, 54 Ind. 377; Shoultz v. McPheeters, 79 Ind. 377; Flournoy v. Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468. A ministerial act is one done by order of a superior: Freidman v. Mathes, 8 Heisk, 502.

37 Shearman and Redfield on Negligence, sec. 310.

38 Barhyte v. Shepherd, 35 N. Y. 238; Weaver v. Devendorf, 3 Denio, 117; Chegaray v. Jenkins, 5 N. Y. 376.

43

as to the assessment; 39 and it has also been applied to acts of county commissioners, 40 and of township boards,41 to a county superintendent of schools in issuing a license, and by some courts to election officers, though in the latter instance it would appear that the better view would be to consider such officers ministerial, and hence liable to one who is wrongfully refused his vote, and this is well sustained.44

In the consideration of a question of the right to appeal from the decision of the county auditor in placing taxes upon the duplicates to the court, it is held that it cannot be maintained, because the officer is merely a ministerial agent of the state; that although he is required to inquire and take evidence to inform his mind and to use his best judgment, he does not act judicially within the meaning of the constitution, but that all judicial power is conferred on the courts. "The power to hear and determine, however much judgment and discretion is required, does not of itself make a judge in the judicial sense. The power simply indicates jurisdiction in the officer of the question to be heard and determined; whether the power is judicial or not depends not only upon the nature and character of the question, but upon the manner and circumstances under which it is to be determined. All ministerial officers are required to exercise more

39 Williams v. Weaver, 75 N. Y. 30; McDaniel v. Tebbetts, 60 N. H. 497; San Jose Gas Co. v. January, 57 Cal. 614; Wilson v. Marsh, 34 Vt. 352.

40 State v. Board etc., 45 Ind. 501.

41 Wall v. Trumball, 16 Mich. 228.

42 Elmore v. Overton, 104 Ind. 548, 54 Am. Rep. 340, 4 N. E. 197. 43 Jenkins v. Waldron, 11 Johns. 114, 6 Am. Dec. 359; Pike v. Megoun, 44 Mo. 492; State v. Daniels, 44 N. H. 383.

44 People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; First Parish in Ludbury v. Stearns, 21 Pick. 148; Goetcheus v. Matthewson, 61 N. Y. 420; Lincoln v. Hapgood, 11 Mass. 350; Anderson v. Milliken, 9 Ohio St. 568.

or less consideration and judgment in the performance of their duties."45 But this does not conflict with the doctrine first stated, that in some instances officers or boards, other than judicial, exercise some power of a quasi judicial character, and are exempt from responsibility for mistakes or error of judgment, and are only liable in such case when they act willfully, maliciously, or corruptly. However inaccurate in form this may be, we find it frequently thus stated.46 This would seem, however, to be an exercise of discretionary power, for which there is likewise no liability; it may resemble judicial power, because it is power to hear and determine, but it is more appropriate to designate it as ministerial, discretionary power, for all judicial power is conferred on judges as courts in the hearing and determination of questions arising in litigation between parties in actions pending before them.47

§ 158. Where One Transaction has in It an Admixture of Judicial Power or Discretion and Ministerial Function.There are instances in the business of the different organizations of governments, counties, townships and municipalities where in one transaction there is involved the exercise of a power akin to judicial (or discretionary) power, and also a ministerial power. It will be remembered that, from a logical standpoint, we prefer not to use judicial power in any other connection than in relation to the acts of courts,48 but as the decisions do so, we follow them, with the innuendo "discretionary " in mind.

45 Musser v. Adair, 55 Ohio St. 466, 45 N. E. 903. See, also, Murray v. Hoboken Land etc. Co., 18 How. (U. S.) 272.

46 State v. Hastings, 37 Neb. 96, 55 N. W. 774.

47 State v. Harmon, 31 Ohio St. 250; De Camp v. Archibold, 50 Ohio St. 618, 40 Am. St. Rep. 692, 35 N. E. 1056; Musser v. Adair, 55 Ohio St. 472, 45 N. E. 903.

48 Ante, sec. 157.