Art. 2. of a temporal or spiritual nature; to academical degrees, to CH. 186. the use of a meetinghouse, &c. So it lies for the production, inspection, or delivery of public papers and books; to oblige corporations to affix their common seal; to compel the holding of a court &c. 1 Mod. 281.-2 § 5. So this writ lies to restore a shoolmaster to his place; Stra. 98.-3 so to a probate court to grant probate of a will; and so, i Salk. Salk 232.-4 250, it lies to restore an attorney; so to restore a sexton, for Salk. 699. this is an office; but not to restore an usher of a school, for this is a mere service; nor to compel the admission to the degree of barrister; Dougl. 353, Rex v. Gray's Inn. v. Jotham's exrs.-2 3 D. & E. § 6. In this case, there was a motion for a mandamus to 3 D. &. E. the trustees (defts.) of a dissenting meetinghouse to restore 575,578, Rex Lloyd, the minister, but denied, because he had not made out a prima facie title to the office; and Buller J. said, there Burr 1045.was a great difference between a mandamus to admit, and to Stra. 1082.restore. The mandamus to admit is merely to enable the 652-1 Lev. party to try his right, without which he would have no legal 23, 113.remedy; but otherwise of a mandamus to restore; here he Trem P. C. must show a prima facie title; for where once he has been 3 Bl. Com. regularly admitted, he may try his right in an action for 111. money had and received. 511,514,518, Cory.-1 § 7. In England, this writ issues on the oath of the party 3 Salk. 230, injured, stating his right, and denial of justice below, on which Queen v a rule is generally made to show cause why a mandamus Salk. 166.should not issue. The first writ is to do the thing, or to show Salk. 430. a reason to the contrary; and if no good reason is shown, the second writ commands peremptorily the thing to be done. So after a return falsified, and a peremptory one may go before any formal judgment. Stra. 697, Foot v. Prowse. ty.-4 Mod. §8. Returns. A mandamus issued to swear church wardens; Farr. R. 83, the return was that they were not chosen. Held, the return Rex v. Tivelwas good; for if both were not chosen, the writ ought not to 53. command him to swear one of them. So a mandamus to swear those who were chosen, generally return they were not chosen is good; chosen debito modo, return not chosen debito modo, is a good return. The person who asks for a mandamus must designate those to whom to be directed. Rex v. § 9. Mandamus to A and B, church wardens of T. &c., 2 Burr. 782.to restore Lewis Cogan into the place and office of sexton of Cowp. 413, said parish; return he was not duly elected sexton according Church warto ancient custom,-that there was a custom for the inhabi- dens of tants &c. paying scot, and bearing lot, to remove at pleasure; al. Trem. and that he was removed pursuant to so such custom. Held, P. c. 450, this return was good, and it was allowed. Taunton & 454, 472. CH. 186. 1 Stra. 55, Rex v. Mayor & al. of Nor wich. 2 Stra. 1259, Rex v. Ch. & al.of Weobly. -1 Sid. 109 -2 Sid. 31. Lofft, 148. 2 Salk. 701, Green v. 10. But if there be an action brought for a false return, and a writ of error be pending thereon, the court will not grant a peremptory mandamus during such pendency. 2 Stra. 983, Reeding v. Newell. $11. Wherever a mandamus is directed to those who have, and also to those who have not a right to do the act directed to be done, the court will supersede it. § 12. A mandamus was moved for to direct particular persons to be inserted in the poor rates, on affidavits of their ability, but refused; for the remedy is by appeal, and the court said, they never went further than to compel the making of the rate. As to who is to be rated, the parish officers are the proper judges, subject to an appeal. § 13. The court will not grant a mandamus to compel the doing of that which is likely to be done without one; and in Mayor & al. every case it must be directed to the person or persons who are to do the act that is required to be done. of Herford. Dougl. 523, 527, Rex v. Bank of England; see Ch. 76, a. 2.; also 1 D. & E. 396, and 2 D. & E. 259. 2 Ld. Raym. 989. 5 Com. D. 25. 3 Salk. 230, Rex v. Mayor § 14. This case was, the king, on the prosecution of Parbury and another, executors of Dawes, against the governor and company of the Bank of England, for a mandamus,-and the court refused to grant one to oblige the bank to transfer stock to said executors, to stand in their own name, because there was a remedy by action on the case, if they refused; and Lord Mansfield stated the general principle to be not to grant a mandamus but where no other specific remedy existed; also 7 East, 353; 10 Johns. R. 484. § 15. It was decided in this case, that no mandamus lies to compel a trading company to give one of its members a recommendatory mark, though it was proved, that without, he could not carry on his trade with effect. No mandamus lies for a private office. § 16. The court will of course quash a mandamus improviof Chester.dently issued, as one to restore nine persons jointly; so 2 Salk. 525. one to compel former overseers to account with the present; 2 Salk.436, 2 Salk. 433; or if it join distinct rights in it, 1 Stra. 578; and so if a mandamus be directed to one person to command another to do an act; no mandamus can be in this form. Queen v. Mayor & al. Rex v. Grow- § 17. It is a general principle, that a mandamas does not lie to turn a person out of office, and make it vacant, or to turn a fellow out of college. Giles' case; never was a mandamus to the justices to grant a license to keep an alehouse. § 18. Having thus far considered writs of mandamus on general principles, it may now be proper, as it is a very useful process and involves many important matters of law, to consider it more in detail, and as it applies to different subjects in this country, and to this end to state first the few American cases to be found under this head, and deserving of attention; and then such English cases, the principles of which enter into our practice. These English cases may be considered, as they respect restoring to office or to some franchise; admission to some office or franchise; proving wills and committing administration; election to office; producing books, inspecting them, &c; justices allowing expenses &c.; appointing to office &c.; courts &c. to proceed to judgment; several cases; proper returns. See Ch. 86; see the form, Bohun, 303 &c. § 19. American cases. It is not recollected that there are any American statutes which direct the issuing or proceedings in these writs of mandamus, therefore, our proceedings, in this respect must be on the principles of the common law, as it is understood we have not adopted the English statutes on this subject. CH. 186. Art. 2. Marbury v. § 20. This was an important case in which it was Cranch, decided by the Supreme Court of the United States, 1st, 187 to 175, That a mandamus is a proper remedy to compel a secre- Madison. tary of state to deliver a commission to which the party is entitled 2. That the propriety or impropriety of issuing a mandamus, is to be determined, not by the office of the person to whom the writ is directed, but by the nature of the thing to be done: 3. That a mandamus may be directed to an inferior court. Connected with these points in this cause, this court also decided, 4. That the keeper of a public record cannot erase therefrom a commission which has been recorded: nor, 5. Refuse a copy to a person demanding it, on the terms prescribed by law: 6. That there are certain acts of a secretary of state which are not examinable in the courts of justice: 7. That he acts in two capacities, first, as the mere agent of the president: Secondly, as a public ministerial officer of the United States: 8. That where the heads of departments are the political confidential agents of the executive, merely to execute his will in cases where he possesses a constitutional, or legal discretion, their acts are only politically examinable: 9. That where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, an injured individual has a right to resort to the laws of his country for a remedy: 10. That it is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted and does not create the cause: 11. But this court, except in the two cases of original jurisdiction, has only appellate jurisdiction; nor can it have by the constitution of the United States; not even by act of Congress. Hence, issuing a mandamus in this case is not exercising appellate jurisdiction, but original none; can issue: rule discharged: 12. That delivery is not necessary to the validity of letters patent: 13. A com CH. 186. Art. 2. 5 Cranch, 115, 141, United States mission is only evidence of appointment: 14. When it is signed by the president and sent to the secretary of state to be sealed and recorded, the officer is completely appointed, if the officer be not at the will of the president. § 21. Held, a mandamus may go to a district judge, to cause his sentence to be executed, though a State legislature v Judge Pe- should declare that sentence void: so to give judgment, but not to direct the form of it. 3 Dall. 42; 2 Johns. R. 371; 2 Cain. Er. 319; 3 Dallas, 121, 129. ters. Id. v. Judge Law rence. 6 Mass. R. Gage. See to, below. 2 Dallas, 4. § 22. Howard and Gage were both voted for as county treasurer in the county of Kennebec. Gage was declared elected by the Common Pleas, and he was qualified &c. Howard moved the Supreme Judicial Court for a rule on the justices of the Common Pleas, and on said Gage to shew cause why a writ of mandamus should not go to admit said Howard to said office for the present year, as having been duly elected. The rule was granted and argued, and a mandamus refused; but the court held, 1st, Writs of mandamus to admit or to restore a person to an annual office are within the jurisdiction of this court: 2. The proceedings upon such writs are according to the course of the common law, the English statutes relating to them not having been adopted in this State. The cases, therefore, in which such writs for the said purposes are an adequate remedy, seem to be, where an office is holden for more than a year, or when the returns involve only a question of law, so that the fact being admitted, a peremptory mandamus ought to go. If this court were to grant a mandamus to the Common Pleas, it must be to admit Howard to the office of county treasurer, or to shew cause why they did not. That court would probably return that they could not obey the writ, because that Howard was not duly elected to the office. This return, if true, would assign a good reason for not obeying the writ; "and the truth of it could be inquired into by the court, either on affidavit or by jury." The court could not grant a peremptory mandamus until the return was falsified; and if grantable after the return falsified by a verdict, in an action by Howard, against the justices, yet such verdict could not probably be found until after the year expired &c. § 23. Tvo other cases of mandamus in Massachusetts. See Brown v. Town of Haverhill, and Scudder's case, Ch. 79, a. 8, in regard to ways. § 24. Held, a district judge acts in his judicial capacity, in determing what evidence is insufficient for issuing a warrant to apprehend a French deserter, under the ninth article of the consular convention; and therefore, that a mandamus would not lie to compel him to issue a warrant contrary to such determination. Art. 2. In Pennsylvania a mandamus was granted, commanding CH. 186. the supervisors of a road to pay an order drawn on them by justices of the peace, under a special statute, and payable out of public monies in their hands, because they were pub lic officers directed to pay those orders, and the payees had no other special remedy. 2 Bin. 275, Commonwealth v. Johnson & al.; Id. 360; 7 East, 353; 2 Stra. 1082; 1 Stra. 159, 536. § 25. The party concerned moved for a mandamus to com- 8 Johns. R. pel the supervisors of Columbia county to audit and pay Adams v. 323, 327, the account for supporting a pauper, under a certain statute. Supervisors Refused; for they were only to pay such accounts as had of &c. been adjusted and paid by the overseers in pursuance of the justice's order. The justice and overseer need not make inquiry together. Held, the Superior Court would grant a 279, Sikes v. mandamus to the judges of the Common Pleas, commanding Ransom. them to seal a bill of exception, or to amend it, according to 2 Johns. Cas. the truth of the case; but would not, where a bill was tendered at a term subsequent to the trial. 6 Johns. R. 118. 134, 179,241. The court refused a mandamus to restore an attorney, be- 1 Johns. Cas. cause the affidavit did not state that the court had improperly removed him. 64, The Peo § 26. A mandamus in this case was issued in the alterna- 1 Johns. Ca. tive, and was duly and regularly served, but no return was ple ex relat made to it; and held, that without compelling a return, the of T. v. Alcourt would grant a peremptory mandamus, the same thing ster county. the court would have done if an insufficient return had been made. 3 Johns. Cas. 79, The Peo § 27. In this case a person was actually in office by colour of right; and the court refused a mandamus to admit an- ple v. the other person claiming to be duly elected, because the proper corp. of remedy was by information in the nature of a quo warranto. This reason was not given in the case of Howard v. Gage, above. New York. 1 Johns. Cas. § 28. The party submitted to a new trial of the cause on 211, Weavel the merits in the Common Pleas, and was nonsuited at the v. Lasher. second trial. Held, he was too late to move for a mandam us to compel that court to give judgment on the verdict found in the first trial. 2 Johns. Cas. 68, The Peo § 29. When the Court of Common Pleas refuses to give judgment in a cause, the Superior Court will not grant a ple v. judges mandamus, until after a rule to shew cause has been first of Cayuga. granted for that purpose. 72, Janson v. § 30. In the Common Pleas administrators recovered less 2 Johns. Cas. than $25 damages, and that court gave judgment for them, Davisson. but not for the costs. Superior court refused a mandamus to compel them to give judgment for the costs also; but left the party to his writ of error. |