CHAP. XXVIII. MANDAMUS. I. Nature of the Writ of Mandamus.-Manda- II. In what other Cases the Court will grant a Mandamus. III. Where not. IV. Form of the Writ. V. Of the Return. VI. Of the Remedy, where the Party to whom the Writ of Mandamus is directed, does not make any Return, or where he makes an insufficient, or false Return. I. Nature of the Writ of Mandamus.—Manda- THE writ of mandamus is a prerogative writ, containing a command, in the king's name, and issuing from the court of King's Bench, directed to persons, corporations, or inferior courts of judicature within the king's dominions, requiring them to do acertain specific act, as being the duty of their office, character, or situation, agreeably to right and justice. This writ affords a proper remedy, in cases where the party has not any other means of compelling a specific performance. The object of the writ is not to supersede legal remedies, but only to supply the defect of them. The only proper ground of the writ is a defect of justice. It is the absence or want of a specific legal remedy, which gives the court, jurisdiction. There must, however, be a specific legal right, as well as the want of a specific legal remedy, in order to found an application for a mandamus. The power to issue this writ belongs exclusively to the court of King's Bench, and is considered as one of the flowers of that court; but this power ought to be exercised with great caution, as a writ of error does not lie on this proceeding. A mandamus lies either to restore a person wrongfully ousted, or to admit a person wrongfully refused. A mandamus lies to restore a person who has been removed from his office without cause; as a mayor, bailiff", alderman, burgess, jurats, common council-man", recorder, town-clerk, or serjeant'. Antiently, in these cases, the writ was termed "a writ of restitution," and appears to have been confined exclusively to offices of a public nature. The title "mandamus," is not found in the old abridgments. By an extension of the antient writ of restitution, a remedy has been provided for persons who have been duly elected to offices, although they never had possession. Hence a mandamus lies to admit, as well as to restore, a person to his office, as a mayor, alderman", town-clerk", &c. (1). (1) The admission under the mandamus gives no right, but only a legal possession, to enable the party to assert his right, if he has any. Hence, non fuit electus has been holden not to be a good return to a mandamus, to swear in a church-warden; (R. v, White, M. 11 Geo. 1. cited by Strange, Arg. Str, 894, 5.) because it is directed only to a ministerial officer, who is to do his duty, and no inconvenience can follow; for if the party has a right, he ought to be admitted; if he has not, the admission will do him no good. Wherever the officer is but ministerial, he is to execute his part, let the consequence be what it will. R. v. Simpson, M. 11 Geo. ib. That By the common law, upon the death of a mayor, or other chief magistrate of boroughs or corporations within the year, the court of King's Bench was authorized to grant a mandamus immediately to fill up the vacancy, thus occasioned by the act of God and an ordinary contingency; but, upon an omission to elect at the charter-day, or to do such acts as were by the charter required to be done at certain times, in order to complete the election, or upon the removal of an officer unduly chosen, the court had not any power to compel an election, or the performance of such acts as were necessary to complete an election, before the day came round again; for, to compel the corporation to proceed to an election at another day, would not be enforcing obedience to the king's charter, but to authorize them to act in opposition to it. The omission to elect might be owing to the contrivance of the person who ought to hold the court, or to preside in the assembly where the election was to be made; or it might be the effect of pure accident: in either case, the inconvenience was the same; a forfeiture of the charter might be incurred, and the corporation dissolved, in consequence of such omission P. To remedy the mischiefs which might thus arise, it was enacted, by stat. 11 Geo. 1. c. 4. that if no election should be made of the mayor, bailiff, or other chief officer of any city, borough, or town corporate in England, Wales, and Berwick-upon-Tweed, upon the day, or within the time appointed by the charter or usage, or if such election having been made, should afterwards become void, whether such omission, or avoidance should happen through the default of the officer, &c., or by any accident, or other means, the corporation should not be thereby dissolved, but might meet at the town-hall, or other usual place of meeting, on the day after, between the hours of ten in the morning and two in the afternoon (2), and proceed to an election; and in case the o See 8 Mod. 129. p See the case of the corporation of Banbury, 10 Mod. 346. cited from a MS note by Lord Hardwicke, C. J. in R. v. Pasmore, 3 T. R. 221. R. v. Tregony, 8 Mod. 127. was a mandamus to the Archdeacon of Colchester, to swear Rodney Fane into the office of churchwarden. The archdeacon returned, that before the coming of the writ, he received an inhibition from the bishop; but the court held that was no excuse, and that a ministerial officer is to do his duty, whether the act would be of any validity or not. (2) I think the time is not essential; but only directory. It was appointed to prevent surprise; and if the election be fairly carried on, though at a different hour, yet such election is good," mayor, or other person who ought to hold the court, or preside at the assenibly, shall be absent, the nearest in place or office, having a right to vote, shall hold the court and preside. And in case no election shall be made upon the day, or within the time appointed by the charter or usage, or in pursuance of the foregoing directions, the court of King's Bench may award a mandamus, requiring the members or persons having a right to vote, or to do acts necessary to be done, in order to an election, to assemble themselves at a time prefixed in the writ, and to proceed to election, and to do the requisite acts, or to signify to the court good cause to the contrary. In cases where the mayor, &c. is to be nominated, elected, or sworn, at a court-leet, or other court, and by contrivance of the lord, steward, or other officer, or by accident, in not holding such court, no due nomination, &c. is made, the court of King's Bench may award a mandamus, requiring the lord, &c. to hold such court, and to do such acts as are necessary for such nomination, &c. Mayors, &c. elected in pursuance of this act, are to take the oaths required upon admission, before the officer presiding at such election, who is authorized to administer them. But the election will not be valid', unless as great a number of persons are present at, and concur in, the election, as would have been necessary in case the same had been made upon the charter-day, &c. Mayors", &c. voluntarily absenting themselves from, or knowingly and designedly preventing the election of any other mayor, &c. upon the charter-day, &c., shall, upon conviction, suffer six months' imprisonment, and be for ever disabled from taking any office. Lastly, the persons to whom the mandamus is directed, are to make their return to the first writ. Such are the enactments and provisions of the stat. 11 Geo. 1. c. 4., which, as it is a remedial law, is to be expounded in the most liberal sense that the words are capable of (3). Per Lord Hardwicke, Ch. Ju. in R. v. Pole, B. R. Trin. 7 and 8 G. 2. MS. (3) "This being a remedial law, to prevent the inconveniences that may arise, by any accident, from non-elections, if the parliament uses such words in an act that will take in other cases within the same mischief, the court ought to construe such kind of acts as liberally as possible." Per Lord Hardwicke, C. J., in R. v. Pole, ub. sup. Hence, the court will grant a mandamus under this statute, to compel the members of a corporation to proceed to the election of a mayor, although more than one year, e. g. three or four years, have elapsed, since a regular election'. The statute is not confined to annual officers. Hence, where by the charter it was directed, that upon the death, removal, or amotion of a burgess, it should be lawful for the mayor and burgesses, within eight days next following the death, &c. to meet and nominate an inhabitant of the borough to be a burgess during life-the eight days after a vacancy having elapsed, without filling up the same, it was holden, that although the burgesses were appointed for life, yet the statute authorized the court to grant a mandamus. In like manner it has been holden, that the words in the first section of the statute, 66 no election" are to be construed no legal election;" and consequently although there has been an election, de facto, the court has a discretionary power, upon considering all the circumstances of the election, to award or not to award a mandamus, as the justice of the case may require. If the legality of the election de facto, be doubtful, and fit to be tried by information in nature of quo warranto, the court will not award a mandamus; but if it appear clearly that the election was illegal, or a merely colourable and void election, the court will grant a mandamus; for in such case it would be nugatory to try the legality of the election in an information in the nature of quo warranto. And the court will grant a mandamus, not only for the head officer, but also for others who are necessary constituent parts of the corporation". In the following case the construction of the foregoing statute underwent considerable discussion. Quo warranto to try defendant's right to be mayor of Grampound, in Cornwall. R.v. Burgesses of the Borough of Orford, M. 9 G. 2. MS. Bull. N. P. 201. 34 MS Serjeant Hill, p. 263. S C. there said by the court, that the Corporation of Macclesfield, Tr. 11 G. 1. was an authority in point. z R. v. Mayor and Burgesses of Thetford, 8 East, 270. a R. v. Newsham, Say. R. 211. Borough of Carmarthen. R. v. Baukes, H. 4 G. 3. 3 Burr. 1452. Borough of Corfe Castle. R. V. Mayor of Colchester, 25 G. 3. 2 T. R. 259. VOL. II. c R.v.Mayor of Bossiney, aliasTintagel, H. 8 G. 2. MS. S. C. shortly reported, Str. 1003. Bull. N. P. 201. cited in R. v. Pankes, 3 Burr. 1454. Case of Aberystwith, Trin. 14 G. 2. Str. 1157. Corporation of Scarborough, Hil. 16 G. 2. Str. 1180. R v. Newsham, Borough of Carmarthen, E 28 G. 2. Say. 211 R. v. Mayor of Cambridge, H.7 G. 3 4 Burr, 2008. d Corporation of Scarborough, Str. e A A 1190. R. v. Nance, B. R. Trin. 14 and 15 |