SECTION 1. MANDAMUS.

§ 2. Origin of remedy. Mandamus is a product of the court of king's bench of England. In that court, by a well settled legal fiction, the king was supposed to sit in person, and, by right of his prerogative, issue the extraordinary legal remedies, among which the mandamus was one of the most important, where the ordinary legal remedies were so inadequate as to threaten a failure of justice. The supposed presence of the king caused these remedies to be called prerogative writs. As the legal fiction on which the name was based is no longer tenable in this country, the term is now inapt and seldom used. Nevertheless the essential character of the remedy has remained the same. It is still an extraordinary remedy, not issuable unless the ordinary legal remedies are inadequate, and is generally subject to a discretion on the part of the judge not to be found in the case of the ordinary legal remedies.

§ 3. Object. The object of mandamus is to compel the performance of a clear, public, legal duty, owed by some person in official or quasi official position. The duty must be one arising from law and not from contract. Thus, in Bailey v. Oviatt (1) a committee had been appointed from the Vermont legislature to investigate charges that the railroads of the state had improperly influenced legislation, and the committee had employed Oviatt to take and report the testimony produced before them. He had taken down the entire testimony in shorthand, but had failed to transcribe a portion of

it, and mandamus was brought against him to compel him to transcribe the residue and deliver it to the committee. The court recognized that he had been guilty of gross violation of duty, but decided that he was a mere employee of the committee and not a public officer; that as such his duties arose from contract and not from law, and were not enforceable by mandamus; and that accordingly the only remedy of the committee was an action for damages for breach of the contract of employment. The court said: "It is true that his failure to discharge his contract duty to them hinders them in the discharge of their public duty, as a committee of investigation, but that does not render his any more a public duty. It simply shows that the committee was very unfortunate in the choice of a servant. Suppose that the defendant, after having contracted to act as clerk and stenographer for the committee but before entering upon the work had refused to act in that capacity, would anyone claim that this court would compel him to perform those services by the writ of mandamus? We think not. No more can it legally issue the writ to compel him to perform what remains unperformed of those services."

But where the law imposes certain duties on an officer it will not be a sufficient answer to a mandamus that the claim which is sought to be enforced arose out of contract. Thus, in People v. Coffey (2) mandamus was allowed against the comptroller of the city of Troy to countersign a warrant in payment of the services of a

teacher, where the claim for payment arose out of a contract for employment and not out of the right to a salary attached to a public office. But the duty arose from law and the contract was the mere occasion for its exercise.

§ 4. Not used to control discretion. Mandamus will not be used to compel the exercise of authority unless there is a duty to exercise that authority. In such cases the authority is permissive, not mandatory; nor will it be used to control the discretion or judgment of an officer who, although under a duty to act, must exercise discretion or judgment in the performance of the act. In such a case, however, he may be compelled to exercise his discretion or judgment, he may be compelled to take action; though the direction of this action will not be determined by the court. Thus, in State v. Commissioners (3) the county commissioners were impliedly required to act with reasonable promptness in passing upon the sufficiency of the sureties to the official bond of a county recorder-elect, and the court held that it would compel them to take action, though it was for them to say whether or not the sureties were sufficient. That mandamus will not be used to control the judgment of a public officer is illustrated by the case of United States v. Commissioners (4), where it was held that it would not be granted to compel "the issuing of a patent for land, in a case where numerous questions of law and fact arise, some of them depending upon circumstances which rest in parol proof yet to be obtained, and where the exercise

(3) 31 Oh. St. 451.

of judicial functions, some of them of a high character, is required."

§ 5. Absence of other adequate legal remedy necessary. As an extraordinary remedy, mandamus is only granted when there is no other adequate legal remedy. Thus, in State v. Megown (5) mandamus was asked to compel the probate court to grant certain letters testamentary, but the court said: "Mandamus will not lie in this instance because relator has other and specific remedy by appeal. The existence of such a remedy bars the exercise of jurisdiction by mandamus; for such a writ is not to usurp the functions of a writ of error or appeal, or to correct errors that may be corrected in that way." But the other remedy to be adequate must, as a rule, furnish the same specific relief as mandamus. Thus, an action for damages against the officer refusing to perform his duty has been held not to be adequate relief; and in the case of Trenton Water Power Co. (6), where a mandamus was asked to compel the company to erect a bridge over Delaware street in the city of Trenton, it was held that the fact they were liable to a criminal prosecution if they did not build the bridge was not a sufficient answer to the request for a mandamus, as, although they might be punished by means of the criminal prosecution, it would not necessarily secure the building of the bridge.

§ 6. Mandamus to public officers. Mandamus is often used to compel inferior courts and judges to take action

(5) 89 Mo. 156.

or perform some ministerial duty, and in such cases its use is largely technical and would have little significance to the general reader. The President of the United States is not subject to the writ, as to make him so would be a violation of the equality of the three branches of the government; and on the same reasoning the better opinion is that the governors of the states are not subject to mandamus by the state courts. See Constitutional Law, § 56, in Volume XII of this work. But in the famous case of Marbury v. Madison (7) it was held by Chief Justice Marshall that where the head of a department, such as the secretary of state, has a mere ministerial duty to perform, such as the delivery of a commission, he can be compelled to perform it by mandamus. Although political officers, officers who are likely to change with a change in the administration, are generally subject to the writ when performing ministerial duties, the writ is far oftener used against more strictly administrative officers, as a much larger part of their duties are likely to be ministerial. Thus, the use of the mandamus against auditing and fiscal officers is very common, as also against county boards and officers, sheriffs, clerks of court, and tax officials. Its use against officials of the United States is very limited, as the Federal courts proper have been given little authority by Congress to issue the writ except incidentally, as for instance, where they are attempting to enforce a judgment they have rendered against a municipal corporation. To mandamus a Federal officer in an original proceeding, it is