THE LAW OF MANDAMUS. CHAPTER I. OF THE ORIGIN AND NATURE OF THE WRIT OF 1. Definition of the writ. 2. Its ancient origin. MANDAMUS. 3. The writ a prerogative remedy in England. 5. The writ regarded as an extraordinary remedy. 6. Comparison of mandamus and injunction. 7. Mandamus not a creative remedy. 8. Common law rules still applicable; the remedy a civil one; and an original proceeding. 9. Right must be clearly established; discretion of the courts. 10. Conditions necessary to the exercise of the jurisdiction. 11. Mandamus not necessarily conclusive as to the right in controversy. 12. Courts will not anticipate omission of duty. 13. Demand and refusal, when necessary. 14. Mandamus not granted where it would be fruitless. 15. Not granted where other adequate legal remedy exists. 16. Statutory remedy a bar to mandamus. 17. Other remedy must be specific. 18. Remedy by indictment no bar to mandamus. 19. Absence of other remedy not always a ground for mandamus. 20. The jurisdiction as affected by equitable remedies. 31. Writ not granted where court of equity has acquired jurisdiction. 22. Qualification of the rule. 23. Injunction, when a bar to the relief. 24. Distinction between ministerial duties and those resting in discretion, the governing principle. 25. Writ not granted for enforcement of contract rights. 26. Not granted where proceedings are tainted with fraud; nor where it would encourage petty litigation. 27. The jurisdiction original, not appellate. 28. The jurisdiction revolutionized by legislation in England. 1. The modern writ of mandamus may be defined as a command issuing from a common law court of competent jurisdiction, in the name of the state or sovereign, directed to some corporation, officer, or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. In the specific relief which it affords, a mandamus operates much in the nature of a bill in chancery for specific performance, the principal difference being that the latter remedy is resorted to for the redress of purely private wrongs, or the enforcement of contract rights, while the former generally has for its object the performance of obligations arising out of official stain or specially imposed by law upon the respondent. The object of a mandamus is to prevent disorder from a failure of justice and a defect of police, and it should be granted in all cases where the law has established no specific remedy and where in justice there should be one. And the value of the matter in issue, or the degree of its importance to the public, should not be too scrupulously weighed.2 a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Within the last century it has been liberally interposed for the benefit of the subject and advancement of justice. The value of the matter, or the degree of its importance to the public police is not scrupulously weighed. If there be a right and no other specific remedy this should not be denied." And in Rex v. $2. The writ of mandamus is of very ancient origin, so ancient indeed that its early history is involved in obscurity, and has been the cause of much curious research and of many conflicting opinions. It seems, originally, to have been one of that large class of writs or mandates, by which the sovereign of England directed the performance of any desired act by his subjects, the word "mandamus" in such writs or letters missive having doubtless given rise to the present name of the writ. These letters missive or mandates, to which the generic name mandamus was applied, were in no sense judicial writs, being merely a command issuing directly from the sovereign to the subject, without the intervention of the courts, and they have now become entirely obsolete. The term "mandamus," derived from these letters missive seems gradually to have been confined in its application to the judicial writ issued by the kings bench, which has by a steady growth developed into the present writ of mandamus. Its use as a judicial writ may be distinctly traced to the reigns of Edward II and Edward III, when it was used to correct an improper amotion from a corporate franchise. The reports, however, afford but few instances of its application before the latter part of the seventeenth century, when it may be said to have been first systematically used as a corrective of official inaction, and for the purpose of setting in motion inferior tribunals and officers.1 This was a case where the writ was granted to restore a member of a municipal corporation to the enjoy. ment of his franchise, from which he had been improperly removed, but it is by no means the first case in which the jurisdiction was exercised for this purpose. See Middleton's case, 2 Dyer, 332, b. temp. 16 Eliz. And Powys, J., in Queen v. Heathcote, 10 Mod. 57, referring to the assertion that Baggs' case was the beginning of mandamus, says that the writ is certainly of much greater antiquity. In Dr. Widdrington's case, 1 Lev. |