When such law, though to some extent changing the remedy, does not impair the obligation of the contract, it will be applied to such contract. Even the right to a writ of mandamus may be taken away without any violation of the constitution of the United States or of the state, provided an adequate and efficacious remedy be left.' When, on the other hand, a subsequent law gives other and additional means for enforcing the obligation of a contract, as by subjecting other property to a liability therefor, or by increasing the power of taxation, the party interested may avail himself thereof." (City), 4 Wall. 535; State v. Rahway (Assessors), 43 N. J. L. 338; Assessor of Taxes v. State, 44 N. J. L. 395; Rees v. Watertown (City), 19 Wall. 107; Louisiana v. Pilsbury, 105 U. S. 278; Duperier v. Iberia Parish (Police Jury), 31 La. An. 709; Canova v. State, 18 Fla. 512; Columbia County (Com'rs) v. King, 13 Fla. 451; United States v. Lincoln County (Just.), 5 1 Antoni v. Greenhow, 107 U. S. 769. 2 Poindexter v. Greenhow, 81 Va. 441. 3 Cape Girardeau County Court v. Hill, 118 U. S. 68; Clay County v. McAleer, 115 U. S. 616; United States v. Galena (City), 10 Bišs. 263. CHAPTER 4. HOW FAR THE WRIT IS CONFINED TO PUBLIC RIGHTS AND AGAINST PUBLIC OFFICERS. § 21. Is the writ confined to public rights in England? 22. 23. American rule. The writ will not run against a private person or one not acting officially. 24. Subject continued. 25. Mandamus to parties assuming public duties. 26. When is property devoted to public uses. 27. Mandamus lies to those holding public franchises. 27a. Mandamus runs to railroad corporations. 28. The writ runs against any corporation. § 21. Is the writ confined to public rights in England?— 1. It has often been decided that the writ of mandamus is never issued, except in the cases of public persons or officers, and to compel the performance of public duties.1 Other courts have expressed the same idea by different phraseology. The writ lies, only for the enforcement of public duties enjoined by law,2 only where there is a plain dereliction of duty by public officers, only when the party required to act occupies some official or quasi-official position, only to enforce official duty imposed by statute, regularly only in cases relating to the public and the government, only where a public trust or official duty is involved,' or only to compel the performance of duties imposed by law. It 3 State v. Comm'rs of Shelby Co., 36 Ohio St. 326. 13 Stephen's Nisi Prius, 2291, 2292; R. v. London Assur. Co., 5 B. & Ald. 901; American R. F. Co. v. Haven, 101 Mass. 398; R. v. Bank of England, 2 B. & Ald. 620; R. v. Clear, 4 B. & C. 901; R. v. Stafford, 3 T. R. 646. 4 State v. Tolle, 71 Mo. 645. 5 Bank of State v. Harrison, 66 Ga. 696. 6 Bacon's Ab., title "Mand." 7 Parrott v. City of Bridgeport, 44 2 Chumasero v. Potts, 2 Mont. 242. Conn. 180. 8 Bailey v. Oviatt, 46 Vt. 627. is issued to an inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. Notwithstanding these decisions, it is not clear that the writ is confined to public officers or to public affairs. Lord Mansfield is credited with being the judge who developed this writ into one of great usefulness. Prior to his chief justiceship the writ had been used principally, if not entirely, to enforce restitution to public offices, and it is always designated in the older abridgments and reports as "the writ of restitution." He acted on the principle, that where there is a wrong there should be a remedy, and decided that where there is a right to execute an office, perform a service or exercise a franchise, and a person is kept out of possession or dispossessed of such right, the writ of mandamus should issue to assist such person, as a matter of justice, and as a matter of public policy to preserve peace, order and good government. A chaplain was kept out of his chapel by one of his parishioners. There were lands attached to the chapel, which belonged to the chaplain by right of his function. The court held that the chaplain was entitled to the writ to restore him to his chaplaincy. This was a private right, and the principal reasons operating on the court seemed to be, that otherwise he was remediless, it being very doubtful whether, under the circumstances of the case, he could bring an action of trespass or of ejectment. In a subsequent case Lord Mansfield restored a dissenting clergyman to his pulpit who had certain emoluments attached to his position or function. The court inclined to the opinion that, since the act of toleration, dissenters and their religious worship should have the assistance of the law, probably because such protection was 1 State v. Gracey, 11 Nev. 223; People v. Insp. State Prison, 4 Mich. 187; Fremont v. Crippen, 10 Cal. 211; Smalley v. Yates, 36 Kan. 519; In re Woffenden, 1 Ariz. 237; Boggs v. Chicago, etc. R. R., 54 Iowa, 435. 2 People v. Steele, 2 Barb. 397. extended to the state-church. In this opinion it was not considered necessary that the function should be a matter of public concern or attended with profit; but if such questions were involved in the case, the inducement would be greater for the court to act. In another case a few years later a dissenting clergyman was restored to his pulpit. Whether there were any emoluments in this case does not appear, the note thereof being very brief.2 In fact, as is well known, the phraseology of the decisions rendered at this period and at an earlier date cannot be relied on, since they were often transcribed by the reporters from memory, or from the notes on the papers, and an examination shows that the various reporters often differ in their reports of the same case as to the statements of the judges. The later decisions seem inclined to limit the writ to public affairs. The writ has often been issued to ecclesiastical officers, such as bishops, but they were by law recognized as state officers, and were called on to perform duties imposed on them by law. On the other hand, the writ has been refused for an office not found in the books and not judicially known.3 § 22. American rule.-2. In the American courts there are but few cases to be found where the writ has been applied for, for a function dissociated from a public right, a public office or a corporation. The courts often quote with approval Lord Mansfield's ruling on the subject in Rex v. Barker, but, since the states have generally accepted the common law as it existed at the time of the first settlements in this country, such rulings, made one hundred and fifty years later, are of course not binding. The common law relative to mandamus, as adopted in this country, was very vague and ill-defined, and in the absence of statutory definitions the courts have been compelled to establish the principles governing the issuance of this writ, and to a great extent they have followed the rulings of Lord Mansfield. In Maryland, in 1799, a minister applied for the writ against 1 Rex v. Barker, supra. Anon., 2 Chit. 253. 2 Rex v. Jotham, 3 T. R. 575. In the elders of his congregation. The real estate of the church was held in trust. By contract with the elders he agreed to preach to the congregation, and the elders contracted to furnish him with a house and a certain stipend annually. The court held that he was dispossessed of a function, carrying with it temporal rights, and that religion was a matter of public concern, and the writ was issued.1 In the same state, in 1805, a priest sought the writ against members of a certain congregation, to which he had been assigned by the bishop, who kept him out of the place and its functions. It does not appear whether there were any emoluments attached to the position, nor whether the church was a corporation. The peremptory writ was issued because the return was adjudged insufficient in its statements. Delaware, in 1855, a preacher applied for the writ against the parties who held the church property in trust, alleging that they would not allow him to occupy the pulpit of the church and preach to the congregation, which he was entitled to do under the laws of that religious denomination. The writ was refused, because it did not appear that there were any emoluments or compensation of any kind attached to the position or function of a preacher in charge of the church in question. In Massachusetts, in 1829, a man applied for a mandamus to compel the parish clerk to give him a certificate of his having joined that parish. He wished to file the certificate with the clerk of the religious society to which he had previously belonged, as evidence of his having left that society. The court refused the writ, remarking that an action was then pending in which the same questions might be tried, and a determination on that summary process might affect the rights of persons who had no opportunity to be heard. In the same volume is a case decided at the next term, which is no doubt the case referred 1 Runkel v. Winemiller, 4 Harris & McH. 429. 2 Brosius v. Reuter, 1 Harr. & Johns. 551. 3 Union Church v. Sanders, 1 Houst. 100. 4 Oakes v. Hill, 8 Pick. 47. |