necessary to report to the local courts of the District of Columbia, and this is possible only in the District.

§ 7. Not to try title to office. Mandamus may be used to compel the issue of a certificate of election to one entitled thereto on the face of the returns, or in such a case to compel the administration of an oath of office, and it is a customary means of obtaining possession of the books, records, and insignia of office; but, where a person is a de facto officer, a claimant to the office cannot avail himself of any of these means to try the title to the office. Thus, in State v. Williams (8) Williams had been elected treasurer of Lyon county for a term regularly expiring in March, 1878, but prior to that date had been elected a member of the Minnesota house of representatives and had entered upon the duties of that office. The county commissioners had determined that this amounted to a resignation of the office of treasurer, and had appointed one Addison in his place. The latter had brought mandamus to compel the delivery of the records and property of the office. The court distinguished this case from those where there is no de facto officer claiming the office, and the only question is as to who is prima facie entitled to the office. It said:

"In that class of cases-in which the question is who is prima facie entitled to the possession of the records and other property of a given office the certificate of the auditor, which is conclusive until it is affirmatively overthrown, is properly held prima facie evidence that person named in it has been elected, and is therefore,

the

if he is duly qualified, entitled to the possession of the records and other property of the office. In that class of cases, the title to the office is not finally adjudicated; but the question of prima facie right is properly regarded as settled by the auditor's certicate. But the case at bar is another thing entirely, because the question of title must be examined and determined against Williams, the incumbent de facto of the office, before the relator's certificate can possess any value whatever. The case, then, is one in which the title of the office is directly and unavoidably in controversy, although the action is in form an action, not for the determination of the title, but for the recovery of possession of the records and other property of the office. The case falls, then, within the rule laid down by Mr. High that 'if it be apparent to the court that, instead of a proceeding whose object is only to get possession of the books and insignia of the office, the writ is invoked in reality to test the title to the office, and the question of title is the real point in issue, it will refuse to lend its aid by mandamus. In all such cases, the parties will be left to a determination of the disputed questions of title by proceedings upon information in the nature of a quo warranto, since this is the only remedy by which judgment of ouster can be had against an actual incumbent and the person rightfully entitled can be put into possession of the office. The court will not, therefore, upon an application for a mandamus to procure possession of official papers, inquire into the right of a de facto incumbent of the office; and if it is apparent that the relator's

rights cannot be determined without such an investigation into respondent's title, mandamus will not lie.'”

§ 8. Mandamus to municipal corporations. A familiar instance of the use of mandamus against municipal corporations is to compel the levy of a tax to pay a judgment against the corporation. Thus, in United States v. New Orleans (9) judgment had been obtained against the city on its bonds and coupons, and executions issued on the judgments and returned unsatisfied; and it was asked that a mandamus should issue to compel the city to pay the judgment out of any funds in its possession, or to levy a tax for their payment. The city relied on the fact that no express power had been granted the city to levy the tax, but the court said that "when the authority to borrow money or incur an obligation in order to execute a public work is conferred upon a municipal corporation, the power to levy a tax for its payment or the discharge of the obligation accompanies it; and this, too, without any special mention that such power is granted." Accordingly, it was ordered that the mandamus issue.

§ 9. Mandamus to private corporations performing public duties. Mandamus is often used to compel public service corporations to perform their duties to the public. Thus, in the case of People v. New York Central R. Co. (10) the railroad company had suspended the operation of its road and gave as its excuse the existence of a strike of its employees for higher wages, not alleged to be accompanied by violence, riot, or other un

(9) 98 U. S. 381.

lawful interference. The attorney-general asked for a mandamus to compel it to resume operation and the appellate court considered the case a proper one for mandamus. It said: "The maintenance and control of most other classes of public highways are so devolved (upon public officers), and the performance of every official duty in respect of them may be compelled by the courts on application of the state, while private damages may also be recoverable for individual injuries. The analogy between such officials and railroad corporations in regard to their relation to the state is strong and clear, and so far as it affects the construction and proper and efficient maintenance of their railways will be questioned by no one. It is equally clear, we think, in regard to their duties as carriers of persons and property. This springs sharply out of the exclusive nature of their rights to do these things. On other public highways every person may be his own carrier, or he may hire whomsoever he will to do that service. Between him and such employee a special and personal relation exists, independent of any public duty, and in which the state has no interest. In such a case the carrier has not contracted with the state to assume the duty as a public trust, nor taken the right and power to do it from the state by becoming the special donee and depositary of a trust. A good reason may, therefore, be assigned why the state will not by mandamus enforce the performance of his contract by such a carrier. But the reason for such a rule altogether fails when the public highway is the exclusive property of a body corporate, which alone has

that all management, control, and user for the purposes of carriage must be limited to itself, and which, as a condition of the franchise that grants absolute and exclusive power over and user of a public highway, has contracted with the state to accept the duty of carrying all persons and property within the scope of its charter, as a public trust." The court considered that a mere dispute over wages was not sufficient to excuse the non-operation of the road.

§ 10. Parties to whom the writ is granted. Where a person has some particular interest or right to be protected, he is a proper party to secure the issue of a mandamus, and in some states he is considered a proper party only in such a case; but the better opinion appears to be that when the performance of the duty affects the public at large it is not necessary for the relator to have any special or peculiar interest in the performance of the duty independent of that of the public at large. Thus, in State v. Francis (11), where a mandamus was sought to compel the board of police commissioners of St. Louis to arrest and prosecute certain named persons for having violated the state law against selling fermented liquors on Sunday, it was held that "where a public right is involved and the object is to enforce a public duty, the people are regarded as the real party, and in such case the relator need not show any legal or special interest in the result. The fact that he is a citizen, and, as such, interested in the execution of the laws is the sesame which unlocks the gates of mandatory