3 fused against the treasurer of a county to make him pay the costs of a witness in a felony case, pursuant to an order of the borough court of sessions, because an attachment was allowable on an indictment for disobedience.1 A mandamus to open a highway was refused where the real object was to remove obstructions from it, since an indictment lay against the offender, and upon his conviction it was the duty of the court to order the sheriff to remove the obstructions.2 The writ was refused to make a ministerial officer obey the orders of the quarter sessions, since indictment was the proper remedy. When the parties have a sufficient remedy in their own hands, the writ will be refused. It was refused: to compel the land-owners to amend and repair certain river banks, which they were liable to repair ratione termina, since the relators, the conservators of Bedford Level, had the authority of commissioners of sewers; and to the overseers of the poor to produce their accounts to the auditor appointed by the poor-law commissioners, since the auditor need not allow their accounts unless the particulars are furnished to him. It is no reply to the application for this writ, that another proceeding may attain the same object. The relator has a right to deal with the existing state of things, and is not bound to abandon them. The plain, adequate and speedy remedy by an ordinary action, which will defeat the right to a mandamus, must be a remedy against the respondent in the mandamus proceeding, and not against third persons. To a mandamus against a board of county canvassers to reconvene, count the votes and declare the proper result, it is no defense to answer that the relator may have a quo warranto against the person declared to be elected. To a mandamus to the auditor to issue a warrant for the relator's salary as 1King v. Surrey (Treas.), 1 Chit. 650. 2 Hale (Com'rs Highways) v. People, 73 Ill. 203. 3 King v. Bristow, 6 T. R. 168. 4Q. v. Gamble, 11 A. & E. 69. 5Q. v. Halifax (Overseers Poor), 10 L. J. M. C. 81. 6 King v. East India Co. (Directors), 4 B. & Ad. 530. 7 People v. Greene Co. (Sup'rs), 12 Barb. 217. the superintendent of schools, it is no defense that he has paid the salary to another, since the relator cannot be compelled to exhaust his remedies against the other.1 Where a judgment for personal injuries sustained was obtained against a town and an individual, the judgment creditor was allowed a mandamus to compel the town authorities to levy a tax to pay the judgment, though the other defendant had property subject to levy. The creditor had a right to compel the town by this proceeding to pay him, and to refuse to him this writ, even though its issuance produced a circuity of actions, would be an interference with his rights. To prevent the issuance of this writ there must be a specific, adequate and legal remedy, competent to afford relief upon the very subject-matter of his application. If, however, it is doubtful whether there is another adequate remedy, or the court cannot clearly see its way to one, the writ will issue. The court is guided in its decision by the nature of the right itself, without regard to the special circumstances of the particular case. So if it is doubtful whether the party is entitled to the writ, the court will often order the rule or issue the alternative writ, and allow the matter to be fully considered and finally decided at the hearing." § 54. Other remedy must be specific.- Such other remedy must be specific. A specific remedy is one which will place the party in the position he occupied before the act complained of, or would have occupied had the duty been performed, or will afford relief upon the very subject-matter of his application. A mandamus to compel the transfer of stock of a corporation was allowed, because, though an action for damages might be an adequate remedy, yet the 1 Williams v. Clayton (Utah, Mar. 8, 1889), 21 Pac. Rep. 398. 2 Palmer v. Stacy, 44 Iowa, 340. 3 State v. Wright, 10 Nev. 167. 4 Rex v. Nottingham O. W. W., 1 N. & P. 480; Ottawa v. People, 48 Ill. 233; Baker v. Johnson, 41 Me. 15; State v. Wright, 10 Nev. 167. 5 R. v. Victoria Park Co., 1 Q. B. 288. 6 Queen v. Heathcote, 10 Mod. 48. 7 Etheridge v. Hall, 7 Port. 47. 8 Sessions v. Boykin, 78 Ala. 328. 9 State v. Wright, 10 Nev. 167; Raisch v. Board of Education, 81 Cal. 542. relator was entitled to the specific relief of being admitted to the corporation as a stockholder, and being allowed to participate in its franchises. It has been held that the writ will issue, though there is a specific legal remedy, if that remedy has become obsolete. Such ruling may be appropriate in England, where legal practice has been systematized by the accretions and changes of centuries, but would hardly be accepted in America, where the obsolete portions of the English law were never adopted. § 55. Other remedy must be a legal remedy.— Such other remedy must be a legal remedy in the ordinary course of law. Though it seems that in early times the writ of mandamus was occasionally issued from a court of chancery, yet it is now held to be exclusively a legal remedy. Consequently the existence of a specific equitable remedy is not a ground for refusing the writ." It is only an element to be taken into consideration by the court in exercising its discretion as to whether it will issue the writ. The writ will not lie where there is a legal remedy by action. The writ has been refused, because an action would lie against the county to compel the county court to allow a claim against the county; to compel the county supervisors to allow a claim; and to make the board of police provide for the payment of a warrant. Where the law specificially provided another remedy the writ was refused: to make 8 1 Memphis, etc. Co. v. Pike, 9 to private corporations, Freon v. Heisk. 697. Carriage Co., 42 Ohio St., 30. 23 Stephen's Nisi Prius, 2291; King Williams (Justices) v. Munday, 2 Leigh, 165. 3 Baker v. Johnson, 41 Me. 15; Tarver v. Tallapoosa (Com'rs Court), 17 Ala. 527. 4 Ante, § 3. 5 People v. State Treasurer, 24 Mich. 468; Phoenix Iron Co. v. Com., 113 Pa. St. 563; R. v. Archbishop, 8 East, 213; R. v. Stafford (Marquis), 3 T. R. 646. Contra, as 6 Tawas, etc. R. R. v. Circuit Judge, 44 Mich. 479; People v. New York (Mayor), 10 Wend. 393. 7 People v. Chenango Co. (Sup'rs), 11 N. Y. 563; Lynch, Ex parte, 2 Hill, 45. 8 State v. Floyd Co. (Judge), 5 Iowa, 380. 9 Crandall v. Amador Co., 20 Cal. 72. 10 Beaman v. Leake Co. (Board of Police), 42 Miss. 237. 1 2 the county officers move their offices; to compel the tax collector to pay his collections into the parish treasury; and to compel a railroad to receive and transport freight without charging discriminatory rates. The writ was refused to compel an officer to surrender to the county commissioners a room in the court-house, which they had formerly assigned to him, because they had full control of the court-house and could bring ejectment; to make the owners of a new bridge, which interfered with the receipts of an earlier bridge, pay to the owners of the latter a certain sum of money as provided by law, because an action of debt lay; to make the board of supervisors levy a tax to pay an order from them on the county treasurer, because suit could be brought; to make the county treasurer pay bonds issued to a railroad from money received by him from a tax levied by law for that purpose, because there was sufficient remedy on his bond. The writ will issue though it determines but one step in the controversy, and though it may still be necessary to resort to an injunction, a quo warranto or a contest of an election. 5 8 56. Relator must show a clear legal right.— The writ will not lie unless the relator shows a clear legal right to have the thing done which he asks for. If the right be doubtful the writ will be refused. A party put in a bid 1 State v. Stockwell, 7 Kans. 98. 2 State v. Boullt, 26 La. An. 259. 3 State v. Mobile, etc. R. R., 59 Ala. 321. 10 (Archb.), 8 East, 213; State Board of Education v. West Point, 50 Miss. 638; Morris, Ex parte, 11 Grat. 292; State v. Hastings, 10 Wis. 518; 4 Washoe Co. Com'rs v. Hatch, 9 Commonwealth v. Mitchell, 82 Pa. Nev. 357. St. 343; People v. Chenango Co. 5Q. v. Hull, etc. R. R., 6 Ad. & E. (Sup'rs), 11 N. Y. 563; Tarver v. Tallapoosa (Com'rs Ct.), 17 Ala. 527; (N. S.) 70. 6 People v. Clark Co. (Board of State v. Omaha (Mayor), 14 Neb. 265; Sup'rs), 50 Ill. 213. 7 State v. McCrillus, 4 Kans. 250. 8 State V. Marshall County (Judge), 7 Iowa, 186. Chicago, etc. R. R. v. Suffern, 129 Ill. 274; Burnsville T. Co. v. State, 119 Ind. 382; State v. Bonnell, 119 Ind. 494; King v. Canterbury People v. Police Board, 107 N. Y. 235; 10 Beaman v. Leake Co. (Board Police), 42 Miss. 237; Townes v. Nichols, for a contract. The law required an approval of his bid by the common council before the contract was let. Until the contract was let he had no right of action. The common council might think it inexpedient to do the work, or that the prices were too high. The lowest bidder has no cause of action even if the contract is let to a higher bidder. His petition to compel the letting of the contract to him was refused.1 The writ was refused: to compel a sheriff to levy on property standing in the wife's name, which the execution creditor asserted belonged to the husband, since there was no clear legal right till the question of ownership was determined;2 to compel the mayor to sign a warrant drawn by the comptroller on the city treasurer, it being doubtful who was entitled to the money, another party having sued the city therefor; to compel the county treasurer to pay a claim allowed by the board of supervisors, it being clear that the supervisors were imposed on; to compel a county treasurer to pay an order legally drawn on funds in his hands, when from extraneous circumstances a well-founded doubt arose as to the right of the applicant to receive it and of the officer to pay it; because the law was so vague that the right was doubtful; because the relator showed no interest whatever in the matter; to make the city treasurer accept $100 so that the relator might demand from the clerk a license to sell liquor, because such a license is not a contract, and he would thereby acquire no legal right. The writ is not granted to enforce rights not of a legal but of a mere equitable nature, no matter how great the inconvenience.9 6 73 Me. 515; State v. Burnside, 33 S. C. 276; State v. Washington Co. (Board Sup'rs), 2 Chand. 247; Mobile, etc. R. R. v. People, 132 Ill. 559; People v. Salomon, 46 Ill. 415; State v. Grubb, 85 Ind. 213; People v. Davis, 93 Ill. 133; State v. Buhler, 90 Mo. 560; Free Press Asso. v. Nichols, 45 Vt. 7. 1 People v. Croton Board, 26 Barb. 240. Aqueduct 2 State v. Craft, 17 Fla. 722. 3 People v. Booth, 49 Barb. 31. 4 People v. Wendell, 71 N. Y. 171. 5 People v. Johnson, 100 IIL 537. 6 State v. Washington Co. (Board Sup'rs), 2 Chand. 247; State v. Verner, 30 S. C. 277. 7 State v. Davis County (Co. Judge), 2 Iowa, 280. 8 State v. Bonnell, 119 Ind. 494. |