to make return. 1 given to amend.2 If the motion be sustained, leave may be § 522. Any variance in substance between the order of the court and the terms of the alternative writ, by which the character of the act to be performed is changed, constitutes such a defect as may be taken advantage of by a motion to quash.3 And in general it may be said, that, since it is incumbent upon the relator to show a clear right to the relief before it is awarded, a motion to quash the alternative mandamus will be sustained where he fails to show such right. So if the alternative writ, as well as the petition on which it is granted, is defective in substance, a motion to quash will be sustained." § 523. Under the English practice, all objections to the alternative writ, in limine, should be raised by motion to quash, before return made, and by making return the respondent is usually precluded from raising any objections to the writ itself. And after return made and issue tried thereon, the courts will not quash the writ upon grounds which might properly have been urged against making the rule for the mandamus absolute, as that the prosecutor had deceived the court in obtaining the writ." In this country, the tendency has been toward a less stringent practice, and it is held that a motion to quash for defects in substance will lie, even after return made. But as regards objections of a merely formal and technical nature, the English practice still prevails, and it is held that all such objections should be urged by motion to quash in the first stage of the proceedings, and they will not be allowed to prevail after return.o § 524. As a matter of convenience, it is frequently stipulated by counsel, that the petition or application for the alternative mandamus shall stand for the writ itself. In such cases, 1 State v. Lean, 9 Wis. 279. 'State v. Hastings, 10 Wis. 518. See State v. Elwood, 11 Wis. 17; State v. Slavin, Ib. 153. 'Hawkins o. More, 3 Ark. 345. 'State v. Hastings, 10 Wis. 518; State v. Elwood, 11 Wis. 17; State v. Slavin, Ib. 153. McCoy v. Justices of Harnett, 5 Jones, 265. 66. King v. Mayor of York, 5 T. R. Queen . Mayor of Stamford, 6 Ad. & E. N. S. 433. 8 Hawkins v. More, 3 Ark. 345. Fuller v. Trustees, 6 Conn. 532. a motion to quash has the effect of fully presenting to the court for its decision the questions raised by the application, and whether it shows a right to the relief sought.1 In other words, the motion to quash performs in such case the functions of a demurrer, and brings the law of the case fully before the All the facts which are sufficiently pleaded are admitted by the motion, and the principal question presented is, whether enough is shown in the petition or application to entitle the relator to a peremptory mandamus. 2 court. § 525. Where the return to the alternative writ specifies and sets out in detail the objections to granting the relief sought, such objections being in the nature of a demurrer to the writ, the effect of quashing that portion of the return is regarded as equivalent to overruling a demurrer to the alternative writ, and although such practice is deemed irregular, the court may treat the questions presented as arising on demurrer. 3 § 526. As to the form of entering judgment, where the relator fails to make out a case entitling him to the peremptory writ, it is held to be the proper practice to enter the judgment that the respondent go without day, and that he recover of the relator his costs.4 And it is improper, in such case, to enter judgment that the writ be quashed, since such judgment is only appropriate when the petition does not disclose a case coming within the legitimate scope of the writ of mandamus, or where it is informal or defective. 5 $527. Where exceptions to the return are overruled and the relator asks leave to plead over, his motion should be granted, the proceedings being assimilated as nearly as possible to pleadings in ordinary actions." And where, upon return or answer, the relator moves for a peremptory writ upon the pleadings, the effect of such motion is the same as a demurrer to the return for not stating facts sufficient to constitute a defense. But, while the relator is entitled to the benefit of all admissions contained in the return, if the case be brought to argument upon the alternative writ and the return, he can not insist upon facts alleged in his petition for the mandamus, or in the accompanying affidavits.1 $528. The practice in the United States courts in cases of mandamus, prior to the act of congress of June 1, 1872,2 was substantially identical with the practice at common law. That act provides that the circuit and district courts of the United States, in other than equity and admiralty causes, shall conform as near as may be in their practice and pleadings to the practice in the state courts where they are situated. The effect of this statute, upon the practice in cases where the jurisdiction by mandamus is exercised by these courts, as ancillary to their existing jurisdiction conferred by law, does not seem to have been settled by any direct adjudication. It is held, however, that this act does not apply to proceedings by mandamus in the federal courts in case of a special jurisdiction, created and conferred by a special act of congress for that purpose, as under the act of March 3, 1873,3 which provides that the proper circuit court of the United States shall have jurisdiction to hear and determine all cases of mandamus to compel the Union Pacific Railway Company to operate its road as required by law. And in cases arising under this statute, the courts will still be governed by the rules of practice prevailing at common law.4 1 People v. Commissioner of State Land Office, 19 Mich. 470. 16 Statutes at Large, 197. 8 17 Statutes at Large, 509. United States v. Union Pacific R. Co. 2 Dill. C. C. 527. CHAPTER IX. OF THE ALTERNATIVE WRIT. § 529. Distinction between alternative and peremptory writs. 530. General nature of the alternative writ. 531. Origin of term mandamus; writ bears name of state or sovereign. 532. Form of writ; distinction as to discretionary nature of act required. 533. Form of mandamus to courts to act on matters within their judgment. 534. The same as to ministerial duties of court. 535. Form of writ to compel auditing of demands against municipality. 536. General principles as to contents of alternative writ. 537. The same; must show clear right; facts necessary. 538. Writ must correspond with order of court; defects in substance, how taken advantage of. 539. Mandatory clause; great strictness required; general requisites. 540. Absence of other legal remedy need not be alleged. 541. Alternative writ must follow rule to show cause. 542. Direction of the writ; general rule; rule where two persons may do the act. 543. Direction to municipal corporation. 544. Direction to courts. 545. Direction to private corporation, where inspection of books is sought. 546. Conclusion in the alternative; omission not fatal; defects not supplied from return. § 529. Writs of mandamus as employed in the courts of England and of this country, are divided into two general classes or subdivisions, whose distinguishing features are clearly marked and universally recognized. These are the alternative and the peremptory writ, which sustain toward each other a relation somewhat akin to that of original and final process in an ordinary action at law. The chief points of difference between these two writs, or rather forms of the same writ, relate to the time when they are issued, and their nature as admitting of answer or return. The alternative writ issues in the earlier stages of the cause, in some cases upon a rule to show cause, in others upon a formal petition or application, without such rule. In either event, its purpose is one and the same, namely, to apprise the respondent of the nature and grounds of the relator's claim for relief, and to afford him an opportunity of performing the act required, or of showing cause to the contrary. It therefore concludes with a clause in the alternative, commanding the respondent to perform the duty in question, or show cause to the court by a given day why he should not perform it, and it is from this clause that the alternative writ derives its name. It follows necessarily, from the object as well as the structure of the alternative writ, that it admits of an answer or return, in which the respondent may set forth the reasons why he should not yield obedience to the mandate of the court. The peremptory mandamus, as we shall hereafter see, is the final mandate of the court granted after full hearing and satisfactory proof, commanding the respondent forthwith to perform the duty in question. It is absolute and peremptory in its nature, admitting of no answer or return, and to its mandate the respondent is required to yield implicit obedience, under pain of attachment for a contempt of court. 3 § 530. In its form, the alternative mandamus is simply a command of the court, that the person to whom it is directed shall perform a particular act or duty therein specified, in favor of the relator or prosecutor, whose right is stated by way of inducement, or that cause be shown to the contrary within a given time. In its general features, it has been compared to a declaration in an ordinary action at law, it being the province of each to notify the opposite party of the cause of action, and of the particular relief claimed. And the alternative writ may be said to combine the double functions of process and pleading in the same cause, to the extent that it serves to bring 'See §§ 500, 502, 503. 2 See Chapter X, post. 'See Canal Trustees v. The People, 12 Ill. 254. |