and a person is kept out of possession or dispossessed of such right, and has no

tice, as the writ expresser.specific legal remedy, this

court ought to assist by a mandamus, upon reasons of jusand upon reasons of public policy,

to preserve peace, order and good government.' The statutory definition adopted by a number of states is that the writ runs to an inferior tribunal, board, corporation or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.2

§ 2. Origin of the writ.-The writ of mandamus was issued as early as the fourteenth and fifteenth centuries." Then it was a mere letter missive from the sovereign power, commanding the party to whom it was addressed to perform a particular act or duty. No return to it was allowed, and disobedience thereof was punished by attachment. At length it obtained the sanction of an original writ, and was issued from the court of king's bench, where the king once presided, and where in fiction of law he is always present. It was, however, rarely used till the latter part of the seventeenth century.

§ 3. The writ of mandamus is a common-law writ.The writ has been issued from a court of chancery,' but such practice has been long since abandoned, and it is now issued only out of a common-law court," and is considered to be exclusively a common-law remedy, with which equity has nothing to do. A court of equity cannot issue an injunction to stay proceedings by mandamus, since the writ is not remedial but mandatory, and issues from a superior court

1 Rex v. Barker, 3 Burr. 1265. 2 State v. Gracey, 11 Nev. 223; Boggs v. C., B. & Q. R. R., 54 Iowa, 435; Fremont v. Crippen, 10 Cal. 211.

3 R. v. Cambridge University, Fort. 202; Rex v. Dr. Gower, 3 Salk. 230.

4 Coventry (Mayor), Case of, 2 Salk.

429; Rioter's Case, 1 Vern. 175; Crane, Ex parte, 5 Pet. 190.

5 By statute in some states a chancery court can issue the writ. 6 Heine v. Levee Commissioners, 19 Wall. 655; Chumasero v. Potts, 2 Mont. 242; State v. Burnsville T. Co., 97 Ind. 416.

7 Gay v. Gilmore, 76 Ga. 725.

of common law, which has great latitude and discretion in such cases, and can judge of all the circumstances, and is not bound by such strict rules as in the case of private rights.1

§ 4. Formerly no traverse was allowed to the return.— Formerly no traverse was allowed to the return to the rule to show cause why a mandamus should not issue, or to the alternative writ, which ordered performance of the act or to show cause why the act should not be done. If the return showed a sufficient legal reason for not doing the act, the writ was refused. The only remedy open to the petitioner was to bring an action for damages for a false return. If the petitioner prevailed in such action, the peremptory writ of mandamus was issued at once.

§ 5. When traverse allowed to the return.-By the statute of 9th Anne (ch. 20) a traverse of the return was permitted in cases where the contest was for municipal office, and by the act of 1 Wm. IV. (ch. 21) a traverse of the return was permitted in all cases, thus dispensing with the necessity for an action for a false return.

§ 6. English common law as adopted in America.— The states of the American Union have adopted the English common law, but generally of a period when the writ of mardamus had been but little used, and the principles governing its issuance had not been formulated. The period selected was generally the early part of the reign of James I., just prior to the settlement of Jamestown, Virginia. This period is prior to the occurrence of Bagg's Case, which has often, though erroneously, been considered to be the first case wherein a mandamus was issued.2 The common law is generally accepted as binding upon this country as it existed prior to the beginning of the fourth year of the reign of James I. He ascended the English throne March 24, 1603.

1 Lord Montague v. Dudman, 2 R. v. Cambridge University, Fort. Ves. Sr. 396. 202; Widdrington's Case, 1 Levinz, 2 Queen v. Heathcote, 10 Mod. 48; 23; R. v. Dr. Gower, 3 Salk. 230.

although a clear and undeniable right should be shown to exist; also, where a man has a jus ad rem, it would be absurd, ridiculous, and a shame to the law, if he could have no remedy, and the only remedy he can have is by mandamus.2 This language cannot, however, be accepted in its full strength. "We receive and admit it as a common maxim that the law has a remedy for every wrong. But this we know means only a legal wrong, and therefore the proposition being turned around comes to nothing more than that there is no wrong where there is no remedy." Again 3 we must keep in mind that the existence of a right is always questionable when the wisdom of the law affords no adequate remedy on its violation. Our effort will be to show how far the statement above may be accepted as correct.

§ 12. Increasing the uses of the writ.-Though the reasons given by the courts, which authorized the issuance of the writ of mandamus, as mentioned in the two prior sections, were no doubt potential with the courts before the principles governing this writ had crystallized into a system, yet at the present time the courts do not act on them so as to enlarge the scope of the writ, but only apply it in cases which fall under its rules by well-established precedent. Even in cases where the state law allows the writ to issue in all cases where it is necessary to prevent a failure," or a denial, of justice, the writer does not find that any effort has been made to enlarge the scope of the writ. It is considered to be a harsh remedy, and to be substituted for the ordinary process only in extraordinary cases, and laws extending its operations should be strictly construed.'

1 Kendall v. United States, 12 Peters, 524.

2 R. v. Montacute, 1 W. Bl. 64.

3 Judges of Oneida C. P. v. People, 18 Wend. 79.

4 Com. v. Cumberland C. P. Court (Judges), 1 S. & R. 187.

Blair v. Marye, 80 Va. 485.

6 State v. Young, 38 La. An. 923.

7 State v. New Orleans, etc. R. R., 42 La. An. 138.

CHAPTER 3.

SCOPE OF THE WRIT OF MANDAMUS.

§ 13. The duties enforced by mandamus.

14. To compel production and inspection of public documents
15. Mandamus as to property devoted to public use.

16. Mandamus not lie to enforce private contracts.

17. Writ not lie to compel payment of debts.

18. Exceptions as to collecting debts by this writ.
19. Exceptions continued.

20. Change of law as affecting mandamus.

A manda

§ 13. The duties enforced by mandamus. mus will issue to enforce obedience to acts of parliament and to the king's charters,' when it is said to be demandable ex debito justitiæ. It will also issue to enforce obedience to the common law, for the statute law is only intended to supply the deficiencies of the common law and to meet exigencies as they arise. As otherwise said, the writ lies to compel the performance of an act which the law enjoins as a duty resulting from an office, trust or station. Whenever the law gives power to, or imposes an obligation on, a particular person to do some particular act or duty, and provides no other specific legal remedy for

5

1 R. v. Everet, Cas. temp. Hard. 261; King v. Wheeler, Cas. temp. Hard. 99; People v. State Treas., 24 Mich. 468; Boggs v. C., B. & Q. R. R., 54 Iowa, 435; Com. v. Allegheny Co. (Com'rs), 32 Pa. St. 218. 2 Bacon's Ab., 66 Title Mand.;" 3 Stephen's Nisi Prius, 2291, 2292; R. v. Clear, 4 B. & C. 899; R. v. Stafford, 3 T. R. 646.

$ 3 Stephen's Nisi Prius, 2291, 2292; People v. State Treas., 24 Mich. 468.

4 State v. Republican V. R. R., 17 Neb. 647.

5 Pittsburgh, etc. R. R. v. Com., 104 Pa. St. 583; State v. Fuller, 18 S. C. 246; State v. Hagood, 30 S. C. 519; Supervisors v. United States, 18 Wall. 71.

6 State v. Johnson, 28 La. An. 932; Crandall v. Amador Co., 20 Cal. 72; State v. Republican R. B. Co., 20 Kans. 404; Chumasero v. Potts, 2 Mont. 242.

its performance, this writ will issue. Such duties need not be specifically stated in the law. It is sufficient if they are imposed by implication from a fair and reasonable construction of the law. Nor is it necessary that they shall be imposed by law on the individual in question, provided he has put himself in the position from which by law the duties accrue. Thus, common carriers, railroads, telegraph and telephone companies, in their business have assumed public functions which under the law may be enforced by mandamus. A railroad which accepted the benefits of a tax authorized by law for its assistance was held liable to mandamus to enforce its obedience to obligations imposed upon it by that act. This writ lies to enforce duties imposed by law, and neither a stipulation nor the agreement of the parties can change the uses or the extent of the writ of mandamus."

§ 14. To compel production and inspection of public documents. This writ will lie to enforce the production of every document of a public nature in which any citizen may prove himself to be interested; but he must show that his interest is direct and tangible, and that his application is made in good faith on some special and public ground,' unless the law allows him an inspection thereof as a matter of right. Such right, however, will not be enforced against one being proceeded against criminally.

1 Mobile & O. R. R. v. Wisdom, 5 Heisk. 125; Winters v. Burford, 6 Cold. 328.

2 Mobile & O. R. R. v. Wisdom, 5 Heisk. 125; Durham v. Monumental S. M. Co., 9 Oreg. 41; People v. Green, 64 N. Y. 499. It has been held, however, that they must be specifically imposed. Freon v. Carriage Co., 42 Ohio St. 30.

6 Lord Denman in R. v. Marylebone, 5 A. & E. 276; R. v. Tower Hamlets, 3 Q. B. 670.

7 Briggs, Ex parte, 1 E. & E. 881; Harrison v. Williams, 4 D. & R. 820; Sage, In re, 70 N. Y. 220; R. v. Clear, 4 B. & C. 899; People v. N. P. R. R., 18 Fed. Rep. 471; Colnon v. Orr, 71 Cal. 43; State v. Hollitzelle, 85 Mo. 620; State v.

3 State v. Nebraska Tel. Co., 17 Williams, 96 Mo. 13.

Neb. 126.

$ Rex v. Great Faringdon, 9 Barn.

4 Mobile & O. R. R. v. Wisdom, 5 & Cres. 541; King v. Wilts, etc.

Heisk. 125.

5 Biggs v. McBride, 17 Oreg. 640.

Nav. (Prop'rs), 3 A. & E. 477.

9 King v. Cadogan, 5 B. & Ald. 902.