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A transferee of stock merely by delivery was refused this writ to compel a transfer of the stock by the corporation on its books, because he was merely an equitable assignee.1 The title must be complete. The writ does not lie if the title is inchoate, even though growing out of statutory duty, nor if the legal right has not been ascertained; it does not lie to establish a right, but is used to enforce a right after its establishment. A person asked for a mandamus to compel a member of a board and its clerk to recognize him as a member of the same board, though another party had been commissioned and was acting as such member, and though in a quo warranto proceeding brought by such other party he was perpetually enjoined from claiming the office. The quo warranto case was then pending on appeal. The court ccnsidered that the relator's claim was not clear and refused the writ."

57. Obligation on respondent to do the act must be absolute. This writ will not lie unless the act desired is of absolute obligation on the part of the person sought to be coerced. The relator must show not only a clear legal right to have the thing done, but also by the person sought to be coerced,' in the manner sought, and that he still has

parte, 9 D. & R. 214; King v. Canterbury (Archb.), 8 East, 213; Lords Kenyon and Buller in R. v. Abrahams, 4 Q. B. 157; King v. Stafford, 3 T. R. 646; Heffner v. Commonwealth, 28 Pa. St. 108.

6 Swartz v. Lange (Kans., Nov. 7, 1891), 27 Pac. Rep. 992.

7 R. v. Fowey (Mayor), 2 B. & C. 584; Morton v. Compt. Gen., 4 Rich. (N. S.) 430; Runion v. Latimer, 6 S. C. 126; Chicago, etc. R. R. v. Suffern,

1 Burnsville T. Co. v. State, 119 129 Ill. 274. Ind. 382.

2 Harris, Ex parte, 52 Ala. 87; Chance v. Temple, 1 Iowa, 179; People v. Brooklyn (City), 1 Wend. 318.

6 State v. St. Louis, etc. Co., 21 Mo. Ap. 526; State v. Omaha (Mayor), 14 Neb. 265; People v. Klokke, 92 Ill. 134; Highways (Com'rs) v. People, 99 Ill. 587; State v. Jacobus, 2

3 Heffner v. Commonwealth, 28 Dutch. 135. Pa. St. 108.

4 Porter Township (Overseers) v. Jersey Shore (Overseers), 82 Pa. St. 275.

5 Hays, Ex parte, 26 Ark. 510.

9 People v. Spruance, 8 Colo. 307; Daniels v. Miller, 8 Colo. 542; Aspen (Mayor) v. Aspen, etc. Co., 10 Colo. 191; Highways Com'rs v. People, 66 Ill. 339.

The duty must be plain1

it in his power to perform the duty required.' The action sought must not only be in the respondent's power to do, but it must be his duty to do it. The act must be clearly prescribed and enjoined by law. and positive. Where the law only required a county auditor to draw his warrant for claims audited by himself, a mandamus was refused to make him issue his warrant on the county treasurer for a claim audited and allowed by the board of supervisors. A duty, which involved a decision that a law was unconstitutional, was not considered to be plain. A mandamus against the commissioners of highways to lay out a road was refused, because a certiorari in the proceedings relative thereto had been taken, which stayed all action, and it could not be considered to be a clear duty on the part of the commissioners to lay out the road. The clerk of a board of supervisors was compelled to put the county seal on a warrant issued by his predecessor, who had neglected to do it, such duty being considered to be imperative. A city clerk will not be required to perform acts demanded of him by the board of trustees, when such duties are not prescribed for him in the city charter, nor in the ordinances passed thereunder.10 A police commissioner, who at the request of the other commissioners kept memoranda of their nominations and agreed to notify the common council thereof, could not be required to correct such memoranda, since he was merely rendering a service and was not required to keep the memoranda." When there is a sub

1 People v. Hayt, 66 N. Y. 606. 2 Aspen (Mayor) v. Aspen, etc. Co., 10 Colo. 191; State v. Zanesville, etc. Co., 16 Ohio St. 308; Arberry v. Beavers, 6 Tex. 457.

3 Puckett v. White, 22 Tex. 559; Q. v. Radnorshire (J.), 15 L. J. (N. S.) 151, M. C.; Mobile, etc. R. R. v. Wisdom, 5 Heisk. 125; Winters v. Busford, 6 Cold. 328.

4 Draper v. Noteware, 7 Cal. 276. 5 State v. Appleby, 25 S. C. 100;

Cutting, Ex parte, 94 U. S. 14; Maddox v. Neal, 45 Ark. 121.

6 Draper v. Noteware, 7 Cal. 276. 7 Lynch, Ex parte, 16 S. C. 32; State v. Hagood, 30 S. C. 519.

8 Highway Com'rs v. People, 99 Ill. 587.

9 Prescott v. Gonser, 34 Iowa, 175. 10 Napa (City) v. Rainey, 59 Cal. 275.

11 Pond v. Parrott, 42'Conn. 13.

stantial doubt as to the officer's duty, the writ will be refused. Such doubt means a doubt on the part of the court after an examination of the law. The doubt, no matter how strong or honest, which the party may have as to his duty in the premises, has nothing to do with the question.? It was held in one instance, that the writ would not be refused where there was a doubt as to the duty, arising from the construction or the effect and meaning of a judicial order. In another case, where a judgment was ambiguous, having two constructions, a mandamus to make the clerk of the court issue an execution thereon was refused. A magistrate was not required to issue a warrant and commit a party to prison for not paying a fine, it being doubtful whether he was required to do so, the law saying "it shall be lawful" for him to do so." A mandamus to make a city treasurer accept $100 from the relator, so that he might demand from the city clerk a license to sell liquor, was refused, because his old license had not expired, and the clerk was not bound to issue a license before the time." A writ to compel the admission of a person to the freedom of a corporation was refused, because the by-law on that subject was not imperative. A mandamus was refused to compel a mayor of a town to issue a distress warrant on a conviction rendered by him, because the conviction, and alleged law governing the case, were open to grave objections, which the court did not consider it was called on to decide in such a proceeding.

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§ 58. Mandamus not lie if act only to be done on approval of another. Where the act is only to be done in case another party approves thereof, a mandamus to com

1 People v. Johnson 100 Ill. 537; State v. Grubb, 85 Ind. 213; State v. Buhler, 90 Mo. 560; Greener v. Moore, 6 Colo. 526; Arberry v. Beavers, 6 Tex. 457; Com. v. County Com'rs, 5 Rawle, 45; Highway Com'rs v. People, 99 Ill. 587.

85.

2 State v. Auditor, 43 Ohio St. 311. 17.

3 Larkin v. Harris, 36 Iowa, 93.

4 Hall v. Stewart, 23 Kans. 396.
5 Rex v. Broderip, 5 B. & C. 239.
6 State v. Bonnell, 119 Ind. 494.
Rex v. Eye (Bailiffs), 1 B. & C.

8 Regina v. Ray, 44 Up. Can. Q. B.

pel such action will not lie. Where it was the duty of a vestry to construct certain sewers, the plans whereof were first to be approved by the metropolitan board of works, a mandamus to compel the construction of the sewers was refused, though it was stated that a mandamus might lie to compel the vestry to go before the board with its plans and to procure its approval thereof.1

$ 59. There must be an officer to do the act desired.Before the writ will issue there must be an officer in being with power and duty to do the act. The writ will not run to a person who was elected to an office but refused to qualify. He cannot be treated as a de facto officer.

§ 60. Corollaries from preceding sections. From the rules stated in the preceding sections certain propositions may be deduced which may be considered to be corollaries thereof. A court cannot order an officer to do an act which, without the order of the court, would not be his legal duty, or which he could not lawfully do, an act beyond the duties enjoined upon him by law as pertaining to his office or position," an act not authorized by law," an act which is illegal,' or an act which was legal but has become illegal prior to the time for issuing the writ. Since the writ only issues to enforce the law as it stands, it will not be used to enforce a casus omissus in the law." An officer will not be compelled to issue a license to sell liquors,

2 State v. Beloit (Sup'rs), 21 Wis. 280. 526

1Q. v. St. Luke's Vestry, 31 L. J. People v. Crotty, 93 Ill. 180; Q. v. Q. B. 50. Ambergate, etc. R. R., 1 El. & Bl. 372; Ross v. Lane, 3 Sm. & M. 695; Menard v. Shaw, 5 Tex. 334; People v. Fowler, 55 N. Y. 252; Gillespie v. Wood, 4 Humph. 437; Puckett v. White, 22 Tex. 559.

3 Greener v. Moore, 6 Colo. 658. 4 State v. Orphans' Court (Judge), 15 Ala. 740; Johnson v. Lucas, 11 Humph. 306.

5 Davis v. Porter, 66 Cal. 658.

6 Chicot Co. v. Kruse, 47 Ark. 80; Clay Co. v. McAleer, 115 U. S. 616; Supervisors v. United States, 18 Wall. 71.

8 People v. Hyde Park, 117 Ill. 462.

Draper v. Noteware, 7 Cal. 276; Q. v. Arnaud, 16 L. J. (N. S.) 50, Q. B.; Q. v. Radnorshire (J.), 15 L. J. (N. S.) 151, M. C.; 3 Stephen's Nisi

7 Clapper, Ex parte, 3 Hill, 458; Prius, 2291.

though at the time of the application for a license it was his duty to issue it, if by a change in the law prior to the issuance of a mandamus it has become a criminal offense to sell liquors. Nor will a federal court compel state officers to levy a tax, when they are not authorized by state law to do so, nor when they have already exhausted the power given them in that respect. Commissioners of highways will not be compelled to open a highway which their predecessors laid out without authority, since they would be committing a trespass. A county auditor was not compelled to place on his duplicate certain taxes levied by a city, because those taxes exceeded the rate allowed by law." Tax assessors were required by law to attach a certain oath to their assessment rolls. They stated in their return to an alternative writ of mandamus that they could not truthfully make the oath required. The court refused to require them to do so, asserting that it would not force them to commit a crime." A public body will not be required to violate a penal statute. Nor will the writ be used to aid the enforcement of an illegal claim.

§ 61. Mandamus is entirely a civil remedy. Though this writ partakes somewhat of a criminal nature, yet it is held by all the courts to be a civil remedy having all the qualities and attributes of a civil action. In applying their practice acts to this writ some of the courts designate it as a civil action or an ordinary action at law,10 and other courts, exempting it from such acts, have considered it to be a special proceeding or proceeding of a special character, or

1 Hall v. Steele, 82 Ala. 562.

2 United States v. New Orleans, 2 Wood, C. C. 230; Clay Co. v. McAleer, 115 U. S. 616.

3 Supervisors v. United States, 18 Wall. 71.

4 Clapper, Ex parte, 3 Hill, 458. 5 State v. Humphreys, 25 Ohio St. 520.

6 People v. Fowler, 55 N. Y. 252.

7 State v. Bergen (Freeholders), 52 N. J. L. 313.

8 Board Educa. v. Detroit (City), 80 Mich. 548.

9 McBane v. People, 50 Ill. 503; Brower v. O'Brien, 2 Ind. 423; Judd v. Driver, 1 Kans. 455.

10 Dement v. Rokker, 126 Ill. 174; Dove v. Ind. Sch. District, 41 Iowa, 689.

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