tempt were brought against a school teacher for expelling a child from a public school after he had been ordered by a peremptory mandamus to allow the child to return to the school. His answer to the alternative writ had alleged that he had expelled the child for disobedience of a certain rule, and a demurrer thereto had been overruled. The court held that the overruling of the demurrer was a legal decision that the child might be expelled for disobeying that rule, while the issue of the peremptory writ was a decision that the child was expelled for another cause; consequently the subsequent expulsion of the child for an infraction of that rule was no disobedience of the peremptory writ. The rule for an attachment may be discharged for defects in the affidavit for the attachment- such a defect, for instance, that the affiant could not be held for perjury though the respondent has failed to show cause. under the rule.2 § 302. Proceedings when party is adjudged guilty of contempt of court.- When a party is adjudged to have been guilty of a contempt of court, it is customary to fine him, and to commit him to prison till he obeys the mandate of the court and pays the fine.3 In imposing such fine for disobedience, the court may include as costs a fair compensation to the attorneys of the relator in such proceedings.4 If the court had jurisdiction to render the decree, issuing a peremptory writ of mandamus, no matter how erroneous it is, the defendant is bound to obey it, and it is a contempt of the court to disobey it; if, however, it had no jurisdiction to render it, there is no contempt of the court in disobeying it. If the command in whole or in part is beyond the power of the court, the writ or its excess is void, and the court has no right to punish for contempt of its unauthor 1 Bowen v. Taylor, 127 Ind. 272. 2 King and Newcastle-upon-Tine (Corp.), 1 Barn. 385. 4 People v. Rochester, etc. R. R., 76 N. Y. 294. 5 State v. King, 29 Kans. 607; People v. Barnett (Sup'rs), 91 Ill. State v. Horner, 16 Mo. Ap. 191. 422. "State v. Horner, 16 Mo. Ap. 191. ized requirements, and its proceedings in contempt for disobedience thereto are void, and the parties imprisoned for such disobedience may be released by the writ of habeas corpus. Where the respondent has been brought before the court under a writ of attachment, and makes a return of obedience to the writ, the relator may reply that such obedience is a mere evasion.2 303. Proceedings for contempt of court against corporations and boards. If the peremptory mandamus was issued to a corporation, and the order of the court has been disregarded, since a corporation cannot in itself be guilty of a contempt, all proceedings instituted to punish for the contempt must be against individuals. The officers of the corporation, or members of the board or tribunal, must be brought before the court by their individual names, that they in their official capacity may be compelled to perform the mandate, and, failing, may be attached and punished as individuals. Whether the attachment should issue against all the members of the board or tribunal, who are required by joint action to fulfill the requirements of the writ, is a point upon which the authorities are not agreed. Some of the decisions maintain that the attachment should only issue against those members who refuse obedience to the writ; " others hold that it should issue against all the members of the board. A further ruling has been made that, where the writ is directed to several persons in their natural characters, the attachment for disobedienee must issue against all the respondents. The authorities all agree that, when 1 Rowland, Ex parte, 104 U. S. 604. 2 Com. v. Sheehan, 814 Pa. St. 132. 3 Bass v. Shakopee (City), 27 Minn. 250; Maddox v. Graham, 2 Metc. (Ky.) 56. 4 Eufaula (City Council) v. Hickman, 57 Ala. 338; Bass v. Shakopee (City), 27 Minn. 250; St. Louis Co. Ct. v. Sparks, 10 Mo. 117. 5Q. v. Ledyard, 1 Ad. & E. (N. S.) 616; Buller's Nisi Prius, 197, 198; London v. Lynn, 1 H. Black. 206; State v. Judge, 38 La. An. 43. 6 State v. Smith, 9 Iowa, 334. 7 Buller's Nisi Prius, 197, 198; Brigenoth (Bailiffs), Case of, 2 Stra. 808. 3 the parties are before the court, the punishment will be proportioned to the offense, and those, who were ready to obey the mandate of the court, will not be adjudged to be in contempt. Only one writ of attachment should issue against the members of each board or tribunal. If more than one writ is issued, they will be consolidated. Those persons who are in office at the time the peremptory writ is issued are the parties to obey it, and they are the parties to be punished in case of disobedience. In general, before a party can be brought into contempt, he must have personal notice. A person, who is a party to the proceedings, is presumed to have knowledge of all of the proceedings." When the respondents have gone out of office pending the proceedings, their successors should have notice of the proceedings prior to the institution against them of proceedings for contempt. When the law dispenses with personal notice and allows a public notice, the parties in contempt, if they had no actual notice, can set it up in their answers. § 304. When an appeal lies in a mandamus proceeding under English law. Under the common law, as it existed prior to the statute of 9 Anne, chapter 20, there was no means of reviewing by appeal, writ of error, or otherwise, a judgment granting or denying a peremptory writ of mandamus. There were various reasons assigned for this ruling. It was said that the writ did not purport to adjudge or decide any right; that it was rather an award of an execution than a judgment; that it was a mode of compelling the performance of an admitted duty rather than a decision as to what the duty was, and that it concluded nothing and was no finality. The proceedings were determined on motion, and no issue was joined. If the return, 1 Buller's Nisi Prius, 197, 198; Eufaula (City Council) v. Hickman, 57 Ala. 338; State v. Smith, 9 Iowa, 334; Com'rs v. Sellew, 99 U. S. 624. 2 Durant V. Washington Co. (Sup'rs), Woolw. 377. 3 Com'rs v. Sellew, 99 U. S. 624; Thompson v. United States, 103 4 King v. Edgvean, 3 Term R. 352. 5 King v. Fowey (Mayor), 5 Dow. & Ry. 614. 6 See § 238. 7 King v. Edgvean, 3 Term R. 352. in case a return was put in, was sufficient in law, the proceedings were suspended; if it was not sufficient, the peremptory writ was issued. The decision in such cases was considered to be merely a rule; no formal judgment was entered, and originally the proceedings were not entered up; consequently there were no such proceedings as warranted a review. Since the passage of the statute of 9 Anne, chapter 20, the relator has been allowed to traverse the return, and if such a course is pursued, a writ of error will lie, because a final judgment may in such case be given. It was considered to be against the nature of a writ of error to lie on any judgment, save where an issue may be joined and tried, or where a judgment may be had on a joinder in demurrer. If there be a verdict or a judgment on demurrer, the successful party shall recover his costs, and upon such judgment a writ of error will lie. If, however, the relator resorted to the summary proceedings allowed by the common law, without traversing, or pleading to, the return, no writ of error could be taken from the final judgment, since the common-law rules of proceeding were not abrogated by the statute of 9 Anne, chapter 20.3 So when a court improperly dismisses an appeal on the ground that it has no jurisdiction, it may be compelled by mandamus to reinstate and to hear it." 305. An appeal is granted in America in mandamus proceedings whenever the action taken is considered to be a final judgment.- The English rule, that a mandamus proceeding cannot be reviewed, unless an issue of fact was made therein or there was a judgment or demurrer, has met 1 Rex v. Dublin, Stra. 536; S. C. on appeal, 8 Mod. 27; Pender v. Herle, 3 Bro. P. C. 505; Commercial Bank v. Canal Com'rs, 10 Wend, 25; People v. Brooklyn (Pres.), 13 Wend. 130; New Haven, etc. Co. v. State, 44 Conn. 376; Layton v. State, 28 N. J. L. 575; Hardee v. Gibbs, 50 Miss. 802. 2 Rex v. Dublin (Dean), 8 Mod. 27; 3 Black. Com. 265; New Haven, etc. R. R. v. State, 44 Conn. 376; People v. Brooklyn (Pres.), 13 Wend. 130. 3 People v. Brooklyn (Pres.), 13 Wend. 130; New Haven, etc. Co. v. State, 44 Conn. 376; Rex v. Dublin (Dean), 8 Mod. 27. 4 Regina v. Smith, 35 Up. Can., Q. B. 518. with but little favor in this country.' The American courts generally have, by statute, a right of review in all cases where there has been a final judgment in the court below, and they have granted such review in mandamus proceedings whenever they considered the action of the lower court to be a final judgment. But in all cases there must be a final judgment before an appeal can be taken. A premature appeal will be dismissed. Such review has been granted, when the peremptory writ was awarded on the pleadings, or on the petition after a demurrer thereto had been sustained and the respondent had declined to plead further, when the peremptory writ was issued after a demurrer to the return had been sustained, and when the proceedings were dismissed on argument after a return had been made to a rule to show cause why a mandamus should not issue." 4 § 306. Appeal or writ of error lies if the writ is refused on the reading of the petition.- When the court 1 Hardee v. Gibbs, 50 Miss. 802. 2 Davies v. Corbin, 112 U. S. 36; United States v. Addison, 22 How. 174; Careaga v. Fernald, 66 Cal. 351; Chance v. Temple, 1 Iowa, 179; State v. Hard, 25 Minn. 460; Bean v. People, 6 Colo. 98; State v. Ottinger, 43 Ohio St. 457; State v. Lancaster County, 13 Neb. 223. In Connecticut the granting or refusing of a mandamus is considered to be a matter of discretion, and therefore not subject to review on appeal. Chesebro v. Babcock, 59 Conn. 213. In New Jersey the early English view has been adopted, and a review by an appellate court was refused, because the proceedings were not a civil suit for the determination of private rights, but an exercise of prerogative power, because the order awarding the writ is not in the nature of a final judgment upon a question of right between the parties, and because by common law a writ of error did not lie, which rule had not been changed by statute or custom. It was stated that, if private rights were decided by such a proceeding, a question as to the right of review would arise, which was not presented in the case before the court. Layton v. State, 28 N. J. L. 575. 3 Watts v. Port Deposit (Pres.), 46 Md. 500. 4 Gregg v. Pemberton, 53 Cal. 251; Withers v. State, 36 Ala. 252. 5 Lee County v. State, 36 Ark. 276. 6 New Haven, etc. R. R. v. State, 44 Conn. 376. Hartman v. Greenhow, 102 U. S. 672; Etheridge v. Hall, 7 Port. 47; State v. Chairman County Com'rs, 4 Rich. (N. S.) 485. |