chaser having tendered the whole amount of taxes due, with the penalty, interest and costs, the law giving him a clear right to the assignment under such circumstances. But if in such case, the purchaser has failed to bring himself within the provisions of the law governing the terms of his application to the treasurer for the assignment of the certificates, he will be refused the aid of a mandamus.2 146. Where the boards of supervisors of certain counties are authorized and empowered, upon the application of any person aggrieved, to hear and determine claims for illegal assessments upon United States bonds and securities, which are exempt by law from taxation, and to repay the amount collected upon such illegal assessments, the duty imposed upon the supervisors is treated as a mandatory one, not resting in official discretion. The only questions for the supervisors to determine in such cases are questions of fact as to whether the illegal taxes have been paid and their amount, and the existence of the claims being undisputed, mandamus will go to require the supervisors to audit and allow the amounts thereof, and to cause the same to be levied and collected in the manner prescribed by law.3 1State c. Magill, 4 Kan. 415. People v. Supervisors of Otsego, 53 Barb. 564, 51 N. Y. 401. + I. PRINCIPLES GOVERNING THE JURISDICTION. § 147. The jurisdiction well established; former remedy in England. no power. 149. Only lies to compel court to act; does not prescribe judgment. 153. Not granted to change or set aside a verdict. 154. Not granted to alter record, receive plea, reinstate appeal, or t construe statute. 155. Does not lie to compel granting of habeas corpus, or punishmen. for contempt, or correction of errors in assessments. 156. Judicial discretion not subject to control by mandamus. 157. Writ not granted to control questions of pleading. 158. Discretion of court over executions not subject to mandamus. 159. Questions of costs not subject to mandamus. 160. Setting aside defaults and granting new trials not controlled by mandamus. 161. Former doctrine in New York. 162. Control of courts over referees not subject to mandamus. 163. Writ not granted to control questions of practice. 164. Not granted to compel court to accept particular bond or sureties. 165. Not granted to interfere with courts under state insolvent laws. (122) 166. Does not lie to control discretion of courts as to granting or dissolving injunctions. 167. Not granted to compel judgment on verdict, or to receive evidence. 168. Does not lie as to granting continuance, or stay of proceedings. 169. Discretion of court in setting aside ca. sa.; sufficiency of bail. 170. Further illustrations of the general rule. 171. Discretion of probate courts not subject to mandamus. 172. Change of venue; new parties to a cause; reference to master in chancery. 173. Dismissal of causes not controlled by mandamus. 174. Granting licenses; opening roads. 175. Nominating officers; administering oath of office. 176. The controlling principle stated. 177. Existence of other remedy a bar to mandamus. 178. The rule of ancient origin; illustrations. 179. Statutory remedy a bar; appeals from subordinate courts. 180. Tests to be applied; writ not granted to remove cause from docket. 181. Further illustrations of the general rule. 182. Refusal of court to award costs. 183. Changes of venue. 184. Clerks of court. 185. Application of the principle to appellate courts. 186. Departure from the general rule in Alabama; illustrations. 187. Similar departure in Michigan. 188. Mandamus not allowed to usurp functions of writ of error or appeal. 189. Rule not affected by error in decision of lower court; nor by hardship resulting therefrom. 190. Nor by absence of remedy by error or appeal. 191. The doctrine applied to dismissing appeals. 192. Applied to questions of evidence and pleading.. 193. Applied to questions of costs. 194. Payment of subscription to railway. 195. Mandamus does not lie to compel granting of mandamus. 196. Not granted where unavailing. 197. Duty of judge must be in official capacity. 198. Relator must establish a clear right. 147. The jurisdiction by the writ of mandamus over inferior judicial tribunals, though closely guarded and jealously exercised by the courts, is too well established to admit of controversy, and forms one of the most salutary features of the general jurisdiction of the courts by mandamus. It is most frequently invoked for the purpose of setting inferior courts in motion, and to compel them to act where action has been either refused or delayed. The earlier remedy, adopted + in England, for the refusal or neglect of justice on the part of the courts, was by the writ of procedendo ad judicium. This was an original writ, issuing out of chancery, to the judges of any subordinate court, commanding them in the king's name to proceed to judgment, but without specifying any particular judgment. If this writ were disobeyed, or if the judges to whom it was addressed still neglected or refused to act, they were liable to punishment for contempt, by an attachment returnable either in the kings bench or common pleas. 1 § 148. The use of the writ of procedendo for the purpose of quickening the action of inferior courts, and preventing a delay of justice, has in modern times, been superseded by the writ of mandamus. And the latter is now regarded as the proper if not the only remedy, by which the sovereign power can compel the performance of official duty by inferior magistrates and officers of the law.2 In England, it being the province of the court of kings bench to superintend all inferior tribunals, and to enforce the proper exercise of their powers, mandamus will lie from that court to the judges of any inferior court, commanding and requiring them to do justice according to the powers of their office, whenever they have delayed acting. But it is to be borne in mind, with reference to the jurisdiction over the action of inferior courts, that it is exercised, not for the purpose of conferring power upon those courts, since this is beyond its scope and province, but only to compel the use of powers already existing. Hence the writ will never be awarded to compel a court to do that which, in the absence of such mandate, it would be powerless to do.4 3 § 149. The province of the writ, in as far as it affects the action of inferior courts, is not to be extended for the purpose of compelling the rendition of a particular judgment, in accordance with the views of the higher court. And while it is proper to compel the inferior tribunal to proceed and 13 Bl. Com. 109. 2 Waldron v. Lee, 5 Pick. 323. 4 State v. Judge of Orphan's Court, 15 Ala. 740. render some judgment, in a case where it has refused or neglected to act, yet the writ will not prescribe the party for whom judgment shall be rendered, since this would be, in effect, to introduce the supervisory power of the appellate court, into a cause yet depending in the inferior tribunal, and thus prematurely to decide the case, and to compel the inferior court to give judgment, not in accordance with its own views, but in conformity with the opinion of the higher tribunal.' Such a procedure might justly be regarded as subversive of our whole system of jurisprudence.2 $150. While, as we shall hereafter see, the authorities hold, almost without exception, that in all matters resting within the jurisdiction of an inferior court, and upon which it has acted in a judicial capacity, mandamus will not lie to review its proceedings, or to revise its rulings, yet where the matters in question are clearly within the powers of the inferior court, but it refuses to exercise its jurisdiction, or to entertain the proceedings, the writ will lie to compel the court to act. Thus, where it is made the duty of an inferior court to entertain and hear appeals from justices of the peace, mandamus will lie for a refusal to perform this duty. But the writ will not be granted to compel the judge of an inferior court to re-investigate facts and circumstances of a case which he has previously fully examined and investigated, since he has the right to rely upon his previous decision, based upon a full investigation of the facts.5 § 151. A distinction is recognized between cases where it is sought by mandamus to control the decision of the inferior court upon the merits of a cause, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law or of practice preliminary to the whole case. And while, as we shall see, the decision of such court upon the merits of the controversy, will not be controlled by mandamus, yet if it has erroneously 1 Life & Fire Insurance Co. v. Adams, 9 Pet. 573. ? Id. 'Beguhl v. Swan, 39 Cal. 411; Ex parte Henderson, 6 Fla. 279. Ex parte Henderson, supra. |