5 a supplementary remedy. It is applied solely to the protection of civil rights," but this includes an interference in criminal proceedings, when necessary to protect such rights. It has been granted to make the justices hear a criminal case, to compel the issuance of a summons in a criminal case, to make an officer, before whom a person committed by a justice of the peace to await indictment was brought on habeas corpus, hear and pass on the evidence touching the prisoner's guilt, and to make a judge enter judgment on the verdict of the jury and pass sentence accordingly, to make a magistrate enforce a conviction,' and to compel a court to proceed and try a criminal case, wherein it has erroneously decided that it has no jurisdiction and has refused to proceed, or that it has no authority to proceed further in the cause. Unless protection is sought for property or against the infringement of personal rights, the writ will not issue. Political rights are not protected by the courts.10 1State v. Lewis, 76 Mo. 370; Gilman v. Bassett, 33 Conn. 298; Kentucky v. Dennison, 65 U. S. 66; Williamsport (City) v. Com., 90 Pa. St. 498; State v. Chicago, etc. R. R., 19 Neb. 476; Burnsville T. Co. v. State, 119 Ind. 382; Leigh v. State, 69 Ala. 261; Rosenbaum v. Sup'rs, 28 Fed. R. 223; Chumasero v. Potts, 2 Mont. 242. 2 State v. Gracey, 11 Nev. 223. Q. v. Mainwaring, Ellis, B. & E. 474: Reg. v. Bristol (J.), 28 Eng. L & E. 160. 4 Q. v. Adamson, 1 Q. B. D. 201. 9 Turner, In re, 5 Ohio, 542. CHAPTER 6. DISCRETION OF COURT IN ISSUING THE WRIT. § 62. Nature of the discretion of the court. 63. Illustrations of exercise of discretion. 64. Limitations as to the use of the writ from its nature. 65. Subject continued. 66. The court will try to make the writ the means of obtaining substantial justice. 67. The writ will be granted only in cases of necessity. 68. Relator must show good motives and correct actions 69. Mandamus will be refused to direct an officer's general course of conduct. 70. Writ refused when delay in acting not unreasonable. 71. Writ will be refused when it will work injustice. 72. Writ will be refused when justice will not be subserved thereby. 73. Writ will be refused when it will operate harshly. 74. The writ will not be issued unless it can effect substantial justice. 75. The writ will not issue when it will be unavailing. 76. Subject continued. 77. If the relator's rights expire before the hearing, the writ will be refused. 78. Writ will be denied if respondent has gone out of office or the act ceases to be his duty. 79. Mandamus to compel an action after the time limited for its performance. 80. Instances of issuing the writ after the time to perform the act had expired. 81. The court will protect the respondent's rights. 82. Parties will not be harassed by suits. 83. Discretion used in protecting the rights of third parties. 84. The writ will not issue when another tribunal can require the act to be done. 85. The last rule not strictly observed. 86. A mandamus not issued to command A. to command B. 87. Laches will bar relief by mandamus. 88. Discretion of court when the state is relator. § 62. Nature of the discretion of the court. This writ was originally, and still remains in England, a prerogative writ, and was issued at the discretion of the court. In America, at the present time, it is but seldom considered to be a prerogative writ. Owing to the nature of our government or statutory provisions on the subject, it is generally considered as more of a writ of right, to be issued in cases to which it applies, and is considered to be an ordinary action at law, and prosecuted in all respects as an ordinary action. But, whether it be called a prerogative writ, a writ of right, or an ordinary action at law, the authorities agree that the courts have a discretion whether they will issue or refuse the writ,' even where a prima facie right thereto is shown. Though there be no other remedy, the court will still exercise its discretion on the subject." Such discretion must be a sound discretion," guided by law. It must be governed by rule," not by humor. It must not be arbitrary,12 vague and fanciful, but legal and regular.13 Where a party is entitled to a right, as to have a bill of ex 1 Leigh v. State, 69 Ala. 261; Bank of State v. Harrison, 66 Ga. 696; Rex v. Barker, 3 Burr. 1265; R. v. Clear, 4 B. & C. 901; Kendall v. United States, 12 Pet. 524. 2 People v. Board Metrop. Police, 26 N. Y. 316. 3 Chumasero v. Potts, 2 Mont. 242; State v. Com'rs Jefferson Co., 11 Kan. 66. 4 Haymore v. Yadkin (Com'rs), 85 N. C. 268; Hartman v.Greenhow, 102 U. S. 672. 3 People v. Weber, 86 Ill. 283; State v. Burnsville T. Co.. 97 Ind. 416; State v. Lewis, 76 Mo. 370; State v. Lancaster. 13 Neb. 223; State v. Chicago, etc. R. R., 19 Neb. 476; Kentucky v. Denison, 65 U. S. 66; Gilman v. Bassett, 33 Conn. 298; Williamsport (City) v. Com., 90 Pa. St. 498. 6 Dist. Twp. v. Ind. Dist., 72 Iowa. 687. People v. Weber, 86 Ill. 283; Daly v. Dimock, 55 Conn. 579; Evans v. Thomas, 32 Kan. 469; Belcher v. Treat, 61 Me. 577; State v. Buchanan, 24 W. Va. 362; Davis v. York Co. (Com'rs), 63 Me. 396; State v. Phillips Co. (Com'rs), 26 Kan. 419. 8 Tennant v. Crocker, 85 Mich. 328. 9 People v. Dowling, 55 Barb. 197. 10 State v. Anderson Co. (Com'rs), 28 Kan. 67; Alger v. Seaver, 138 Mass. 331; King William Just. v. Munday, 2 Leigh, 165. 11 People v. Chapin, 104 N. Y. 96. 12 Fitch v. McDiarmid, 26 Ark. 482; Prop'rs St. Luke's Church v. Slack, 7 Cush. 226. 13 Mackey, Ex parte, 15 S. C. 322. ceptions signed, though it is said to be in the discretion of the court as to whether it shall be ordered, still, being a right, it cannot be considered as discretionary on the part of the court. It has been said that it is perhaps impossible to lay down in advance a precise and inflexible rule to govern the discretion of the court. Owing to the different theories held in England and America on the subject of this writ, the English courts, as should be expected, allow their discretion greater scope in issuing or refusing the writ than do the American courts, which are more inclined to consider its issue to be a matter of right, governed by wellestablished rules. § 63. Illustrations of exercise of discretion.- In exercising such discretion the court will consider all the circumstances, reviewing the whole case with due regard to the consequences of its action. It will consider the exigency, the nature and extent of the wrong or injury, which will follow a refusal, etc. The writ was refused: where its issuance would long continue confusion in the city, which a little good advice might soon put an end to;" to make county commissioners pay the damages awarded a party upon condemnation of his property, when they showed they had no money except what was required for the pressing necessities of the county;" to make a judge ad hoc try a cause, when the validity of his appointment was being contested on an appeal; against the mayor of a city to appoint a chief of police, there being no other claimant to that office save the incumbent, against whom an information was pending to try his title thereto; to make a city marshal station a police officer at a certain place, as ordered 1 Etheridge v. Hall, 7 Port. 47. 2 American, etc. Co. v. Haven, 101 Mass. 398. 3 Alger v. Seaver, 138 Mass. 331; People v. Ketchum, 72 Ill. 212; People v. East Saginaw (Com. Council), 33 Mich. 164; People v. Genesee Cir. Judge, 37 Mich. 281. 4 Tennant v. Crocker, 85 Mich. 328. 5 Queen v. Heathcote, 10 Mod. 48. 6 Com. v. Philadelphia (Com'rs), 1 Whart. 1. 7 State v. Earhart, 35 La. An. 603. 8 Att'y-General v. New Bedford (Mayor), 128 Mass. 312. by the board of aldermen; when it called for a decision as to the number of officers to be elected, necessitating the determination of the constitutionality of a statute, when the petition was presented only five days before the election and was practically submitted without argument, whereas the matter required a full consideration with opportunity for all in interest to be heard.2 64. Limitations as to the use of the writ from its nature. This writ is described as "the right arm of the law." Its principal office is not to inquire and investigate, but to command and execute. It is not designed to assume a part in ordinary lawsuits or equitable proceedings. It has been said that it is properly called into requisition in cases where the law has been settled, or in cases where questions of law or equity cannot properly and reasonably arise, and that its very nature implies that the law, although plain and clear, fails to be enforced, and needs assistance. Other courts give it a much more extended scope. Where a trial by jury is allowed, it would seem proper to extend it to any case which falls within the general principles governing its application. It has been allowed where the taking of a long account was necessary, yet it has been held, that the question, whether certain land is a public highway or not, will not be determined in a mandamus proceeding." So it has been considered that, when the title to real estate is directly in issue, a mandamus is not proper to determine the question; yet, when such question is only incidentally involved, and may affect the discretion of the court in awarding or denying the writ, it is proper that the court should be satisfied on the subject. The federal courts confine the writ within a very narrow scope,' but other courts 1 Alger v. Seaver, 138 Mass. 331. 2 State v. Com'rs of Douglas Co., 18 Neb. 506. 3 Townes v. Nichols, 73 Me. 515. 5 Tennant v. Crocker, 85 Mich. 328. 6 Eby v. School Trustees, 87 Cal. 166. 7 See § 31. |