CHAPTER XII:

                MANDAMUS TO THE ATTORNEY GENERAL


     The attorney  general is also subject to control, by writ of
mandamus, in  his mere  ministerial duties in those matters where
he has  not the  power of  exercising his judgment or discretion.
But in  his case, as well as in others, the courts will not grant
a mandamus  when it would be fruitless and ineffectual to relieve
the relator.

     And by  this is  meant that  the aid  of the  court will  be
refused where  its writ  will not  finally avail  the  party,  or
protect its  rights, and  where he  hasno right  to the  ultimate
relief to  which his  proceedings tend,  or  cannot  redress  his
grievances in the proceeding which he seeks to institute.

     Therefore a  peremptory mandamus  was denied  in a  case  to
compel the  attorney general  to certify  that  certainsuits  for
penalties were  daily instituted  as by  law required,  and which
certificate it was claimed it was his duty to given, in obedience
to a  law providing "that whenever costs are adjudged against the
people of the State in any civil suit or proceeding instituted by
any officer  duly authorized  for that  purpose, it  shall be the
duty of  the comptroller  to draw on the treasurer for the amount
thereof, upon  the production  of an  authenticated copy  of  the
judgment record,  etc., and  upon a  certificate  ofthe  attorney
general that  such suit  or proceeding was duly instituted, as by
law  required,   "where  it  was  shown  by  the  return  of  the
attorneygeneral that  no  appropriation  had  been  made  by  the
legislature for  the payment of such costs. For it was maintained
that inasmuch as the money could not be paid out by the treasurer
without an  appropriation by  the legislature,  it would be of no
avail to  the relator  if thecomptroller's  warrant was obtained;
that if  the attorney  general should  be compelled  to give  the
certificate asked  it could  not avail  the party, asit could not
give him  the relief  to which  his proceedings  were designed to
tend.(The People v. Tremain, 29 Barb. Rep., 96.)

     The same  doctrine was  maintained in  the case of Woodbury,
petitioner, v.  County Commissioners  of  Piscataquis,  40  Maine
Rep., 304, in which case it was held that the writ will be denied
where a  person applies for it for the purpose of being placed in
an office  filled by  an annual  election, to which he alleges he
was duly chosen, but illegally counted out, where it appears that
before any effectual action could be had in the case, if the writ
should be  granted, the  term for  which the  peitioner claims to
have been  elected will  have expired.  (Williams, petitioner, v.
County Commissioners,  35 Maine,  345; Howard  v. Gage,  6 mass.,
462.)

     Neither will  courts attempt to compel any officer to do any
act which  he is  not bound  to do,  or performan  act which will
haveno force  when done.  Therefore, a  mandamus  to  compel  the
Secretary of  State to issue a commission to one appointed by the
Governor to  the office of the attorney general, was denied, upon
it  appearing  that  the  Governor  had  no  power  to  make  the
appointment. (Collins,  Secretary of  State, v. The State, 8 Ind.
Rep., 345.)


                          CHAPTER XIII:

                     MANDAMUS TO CANVASSERS


     Though each  house of  the legislative  assembly  can  alone
determine the right of its members to seats, yet mandamus lies to
compel the  canvassers to  perform the  ministerial act of giving
their official  certificateto  the  person  who  appears  by  the
returns to have received the largest number of votes as a senator
or representative. (O'Ferrall v. Colby, 2 Min. Rep., 180.)

     And where by law it is provided that where one is elected or
appointed to  an office  by the general assembly, it shall be the
duty of the speaker to give to him a certificate of his election;
if they  refuse to  give him  such  certificate,  they  may    be
proceeded against  by mandamus.  (State of Ohio v. Loomis, 5 Ham.
(O.R.), 358.)

     So where the duty of a board of canvassers of an election is
simply to  receive and  count the  returns of  votes, and  not to
judge of  their validity,  or of  any fraud  affecting them, that
question being  for another s pecially appointed tribunal, upon a
case properly  brought after the board have declared  the result,
the action  of the  board in this matter is ministerial only, and
mandamus will therefore lie to compel them to perform their duty.
(State v.  County Judge,  7 Clarke,  (Iowa) 186, State v. Bailey,
Ib., 390.)

     And where  the statute  defining the  duties of the board of
examiners provided,  that they  should "examine  the  returns  of
votes transmitted  to them,  and if  any person shall be found to
have a  majority of  all the  ballots" to give the person elected
written notice  of his  election, it  was held that they were not
made a  judicial tribunal  upon the  validity of  the fact of the
election in  any other mode than by an examination of the returns
made to  them, according  to law.  That they were not required or
authorized to  hear witnesses,  or weigh  evidences; nor had they
power to  send for persons or papers. That if one result appeared
upon the  returns, and  another was  the real  truth of the case,
they could  only act  upon the  former. And  that as  the  return
required by statute was a copy of the town record, signed by  the
selectment,  and  attested  by  the  town  clerk,  the  board  of
examiners were  not required by law to receive, examine, or treat
as a  return, any paper which did not appear upon its face, to be
such a return. (Luce v. Mayhew et al., 13 Gray's Rep., 83.)

     And where the general election laws of a State directed that
the clerk  of the court of Common Pleas, with two justices of the
peace called to his assistance, should open and make abstracts of
the several returns which shall have been made to his office, and
that in  making such  abstracts of  votes the  justices and clerk
shall not  decide onthe  validity of  the returns,  but shall  be
governed by  the number  of votes  stated in  the poll-books, and
that no  election should  be set  aside for  want of  form in the
poll-books, provided  they contained  the substance,  it was held
that the  aggregate results  of the  returns,  exhibited  by  the
several  poll-books,   were  tobe   ascertained  by  arithmetical
calculation, and could not be controlled by the discretion of the
person performing  the duty.  That such counting of votes, making
of abstracts,  which duties  fell within  the province of a clerk
and accountant,  and admitted of no discretion, and were in their
nature ministerial,  and that, therefore, the performance of such
duties might  be enforced  without assuming  to control  judicial
discretion. (Igerson v.Berry, 14 O.S. Rep., 322.)

     The same  doctrine was  maintained and applied by the courts
of Massachusetts. (Stron, Petitioner,20 Pick. Rep., 484.)


                          CHAPTER XIV:

                  MANDAMUS TO STATE TREASURERS


     The State  Treasurer may  also be  controlled by mandamus in
the exercise of his ministerial duties. And when the law requires
him, upon  the happening of a certain event, to go forward and do
a certain act, his declining to act at once, when notified of the
happening of  the event,  is equivalent  to  a  refusal,  and  is
sufficient ground for issuing a mandamus.

     Therefore, where  the charter  of a  government  stock  bank
provided, that  if said  corporation should at any time, or under
any pretense,  refuse to pay any of its notes, teh holder thereof
might file  his affidavit  of fact  with the State Treasurer, who
shall thereupon  give notice that the bills of said bank would be
paid at the Treasurer's office; it was held, that it was the duty
of the  Treasurer, on such affidavit being filed, to act at once,
without waiting for counter affidavits, and that declining to act
at once  was equivalent to refusal, and was sufficient ground for
issuing a  mandamus to  compel him to give the prescribed notice.
(The People v. State Treasurer, 4 Mich.27.)

     In Houston  v. Randolph,  24 Texas Rep., 317, however it was
held that mandamus would not lie to compel the State Treasurer to
pay, in  accordancewith a  warrant signed  by  the  Governor  and
attorney-general, acting as the board of school commissioners, as
he and not the judiciary, was the judge of his official duties.

     This doctrine,  however, can  be extended  only  so  far  as
relates to those general duties of the office, depending upon the
Treasurer's judgment  or discretion.  For if the law imposed upon
him some  specific duty,  if he should refuse to perform it, even
if he  thought he  was not  required by the law to do so, yet the
courts would  undoubtedly possess the power to compel him to act,
by writ of mandamus.


                           CHAPTER XV:

                   MANDAMUS TO COUNTY AUDITOR


     The writ  has often been issued to compel county auditors to
perform ministerial  duties enjoined  upon them  by law,  and  to
force them  to  act  in  those  cases,  even  where  they  had  a
discretion as to how they should act in the premises.

     The case  of Burnett  v. The  Auditor of  Portage County, 12
O.R., 54,  was an  application for  a writ  of  mandamus  to  the
auditor of  Portage county,  to compel  him to audit and allow an
account against the county, amounting to $88, for forty-four days
labor performed as assistant appraiser of real property.

     The law  prescribing the duty of the auditor, provided, that
he  should   settle  all  accounts,  debts  and  demands,  justly
chargeable against  the county, and which are not directed by law
to be  settled and  allowed by  some other  person  or  tribunal,
&c.,"and for  all demands against the county, the amount of which
is fixed  by law,  he shall  issue orders  on the treasury of the
county."

     The compensation  ofassistant appraisers,  was fixed  by the
legislature at two dollars for each day's services.

     Birchard, J.,  in delivering  the opinion of the court said:
"If the  amount of  this account  is fixed by law, and within the
meaning of the act, the writ prayed for should be allowed; for in
that case,  the duty to be performed would be merely ministerial,
and a  writ of  mandamus would  be a proper remedy. So, if vested
with a  discretion, and the officer should refuse to act. In this
case, however,  the auditor  has acted  by rejecting the account.
The proper  remedy, if  the account  be  just,  and  the  auditor
authorized to  audit it,  is an  action of  assumpsit against the
county. It  cannot be contended that the amount of the account is
fixed by  law, for  the only professes to fix the per diem at two
dollars. This is but a rule for fixing the amount of the account;
and whether  it should  be eighty-four  dollars, or  a less  sum,
depends entirely upon the amount of services performed."

     Another objection to the allowance of the writ in this case,
was that  the statute  made it  the duty  of each  assessor,  and
deputy assessor,  at the end  of each week in which he shall have
been engaged in the performance of his duty, to enter an account,
in  writing, of the number of days, or parts of days, he may have
been engaged  during the  week, and at some stated meeting of the
commissioners, to  present such  original  account  to  them;  to
testify under  oath to the accuracy of the account, and to answer
such questions respecting the same as they may put to him.

     It was therefore insisted by the court that the account must
be acted  upon by  the commissioners of the county, and they must
be satisfied  of the  performance  of  the  service,  before  the
auditor could legally issue any order upon the treasury.

     It seems  clear that  that  auditor  may  be  compelled,  by
mandamus, to  perform any public duty specially enjoined upon him
by some  provision of law. But whether, from the circumstances of
the case,  he is thus enjoined by law, is many times, a difficult
question to determine.

     Therefore, where  the law provided "that all accounts, debts
and demands,  justly chargeable against any county, and which are
not directed  by law  to be  settled and  allowed by  some  other
person or  tribunal, shall be examined and settled by the auditor
of such  county; and  for  all  such  just  debts,  accounts  and
demands, settled  and allowed  by  the  auditor,  or  settled  or
allowed by  any other  person or tribunal authorized by law to do
so," it  was doubted by some of the members of the court, whether
the auditor could, by mandamus, be compelled to issue an order to
be paid  to the  sheriff for  expenses in boarding and caring for
juries impaneled to try a person charged with murder.

     A majority  of the  court, however,  believed  it  to  be  a
necessary incident to their authority to make a provision for the
sustenance and  care  of  juries  when  called  to  administerthe
criminal laws  of the  State in  any county; and as the speediest
way of reimbursing the sheriff for money advanced by him for this
salutory purpose, they directed the county auditor to consider an
account of  this character,  audited and allowed by the court, as
"a just  demand against  the county,  settled and  allowed  by  a
tribunal authorized  by law  to do  so." (The State v. Auditor of
Hamilton County. 19 O.R., 116.)

     Another case recognizing the doctrine that mandamus will not
lie to  compel the  auditor of  a county  to draw an order on the
treasurer of  the county  where the  auditor has not the right to
fix the  amount to  be drawn  for, unless  such amount  has  been
ascertained and  liquidated by  the proper  authority, is that of
The Commissioners  of Putnam  County  v.  The  Auditor  of  Allen
County, 1 O.S. Rep., 322.

     The controversy  in this  case arose in reference to a claim
set up  by Putnam county against Allen county, for a sum of money
which it  was claimed  was due  from Allen  to Putnam  county, by
virtue of  the provisons  of the  statute creating  the county of
Auglaize. A  large portion  of the  territory of Allen county was
taken for the purpose of erecting the new county of Auglaize, and
in order  to compensate Allen county for the territory thus lost,
a portion  of Putnam  county was  added to  Allen. The  county of
Putnam was  largely indebted  at the time, and in order to enable
Putnam county  to retain her capacity to pay off her debt, and to
do justice  in the premises, the legislature provided as follows:
"That the commissioners of the counties of Allen and Putnam shall
meet on or before the first Monday in April next, or within sixty
days thereafter,  and ascertain  and determine  the amount of the
public debt  of Putnam  county, exclusive of that for the surplus
revenue loaned to said county, and the proportion which the value
of the  taxable lands  set off by this act to the county of Allen
from the county of Putnam bears to the value of the taxable lands
by this  act remaining in Putnam county; and hereafter, each year
until the public debt aforesaid shall be paid off and discharged,
there shall be paid out of the treasury of Allen county, upon the
order of  the auditor thereof, to the treasurer of Putnam county,
a sum  which shall  bear the same proportion to the amount raised
in that  year by  Putnam county  for  the  payment  of  the  debt
aforesaid, as  the value  of the  taxable lands  so  set  off  as
aforesaid bears  to that  of those  so as  aforesaid remaining in
Putnam county, and the same shall be applied to the extinguishing
of said  debt, and for no other purpose; and it shall be the duty
of the  commissioners of Allen county to levy a sufficient tax to
raise the said sum."

     Within the time prescribed by the statute, the commissioners
of Putnam  county met, having notified the commissioners of Allen
county of  the meeting.  The commissioners of Allen county failed
and  refused  to  attend.  The  commissioners  of  Putnam  county
proceeded to  ascertain the debt of Putnam county, and found that
it amounted to over $10,000; and in accordance with the rule laid
down in  the statute,  made a  computation of what amount of this
debt should  be liquidated  by Allen  county. For  the year 1849,
Putnam county  collected by  tax $860.29 and paid off that amount
of the  debt. This  required of  Allen county,  according to  the
computation made  as above,  to pay,  as her  proportion  to  the
county of Putnam, $330. A demand was made on the auditor of Allen
county to  draw an  order in  favor of  Putnam  county  for  that
amount; this  he refused to do. An application was thereupon made
for a mandamus to compel him to do so.

     Caldwell, J.,  in delivering  the opinion ofhte court, said:
"A question,  however, arises.  Whether  this  court,  under  the
circumstances,  can  compel  the  auditor  of  Allen  county,  by
mandamus, to  issue the  order for  the amount  claimed by Putnam
county. The  auditor of  a county is aministerial officer, except
in  such   cases  as   the  Legislature   may  clothe   him  with
discretionary powers.  The county  commissioners are  the general
legal representatives  of the county. In this particular instance
the auditor  had no  authority in determining the amount that was
to be  paid by  Allen county;  he was merely to draw an order for
such amount  as should  be determined  on by the commissioners of
the two counties. The amount to be paid has never been decided in
the way  provided for  by the  statute. On  the  refusal  of  the
commissioners of  Allen county  to  meet  with  those  of  Putnam
county, and  to fix  the amount,  a right  of action  accrued  to
Putnam county,  to recover  from Allen  such amount  as might  be
found under  the rule of computation laid down in the statute. NO
provison is  made for  the commissioners  of Putnam  county alone
fixing the  amount. So  that Allen  county is  not bound  by  the
assessment thus  made, although  she is  bound to  pay so much as
might be  found due  in an appropriate action. If the amount were
fixed in  the mode  comtenplated in  the statute,  or if  it were
liquidated by  judgment, mandamus  would be  a proper  remedy  to
compel the  auditor to perform the ministerial act of drawing the
order; but  until the  amount is  thus liquidated,  we think  the
auditor cannot  be compelled  to act; the time for his action has
not arrived."

     Mandamus also  lies to compel a county auditor to enter upon
the tax  duplicate ofthe  county,  lands  which  should  be  thus
entered, and  which he  neglects or  refuses to so enter. But the
writ  only   lies  when  the  officer  is  legally  empowered  to
performthe  judgment  of  the  court.  And  therefore,  when  the
duplicate for  a particular year has gone out of his hands,and he
has no  further power  or control over it, he cannot be compelled
to so  enter it,  for it  would be  commanding him  to perform an
impossiblity.

     Neither can  he be  ordered to  so enter it, before the time
has arrived  for making  up the  duplicate, for  to do  so is  to
assume that he will then, without coercion, refuse to perform his
legal duty.  (The City of Zanesville v. Richards. Auditor, 5 O.S.
Rep., 589.)

     And so  where the county auditor is about to do an official,
ministerial act,  in an  illegal and  incorrect manner,  and in a
matter of  public right, mandamus will lie to compel him to do it
in the manner pointed out by law. Therefore where the State board
of equalization  had ordered  an addition  of fifteen per cent to
the valuation of the real property of a certain county, and their
acts and  orders in  the premises  were null  and void,  and  the
county auditor  was about  to add  said fifteen  per cent  to the
valuation of  the land of said county, and to issue the duplicate
for the  tax   on real  property with  the fifteen  per cent thus
added, it  was held  that a  mandamus would  lie to compel him to
certify the duplicate without such addition.

     Blackford, J.,  in delivering  the opinion  of the court, in
the case  of Hamilton,  Auditor of  Marion Countyv.  The State, 3
Ind. Rep.,  452, said:  "The next question is, whether a mandamus
is the  proper remedy  in this  case? We have no doubt as to this
point. The  order of  the State  board, as we have already shown,
for the addition of fifteen percent, to the valuation of the real
estate in  Marion county,  is a  nullity; it was consequently the
defendant's duty,  as  the  county  auditor,  to  issue  the  tax
duplicate without  said additional  percentage. That  duty, which
was a  public one,  the defendant  refused to  perform;  and  the
proper remedy for the State, to compel his performance of it, was
by mandamus.  The order  aforesaid of  the State board being null
and void, the defendant had no discretion relative to the issuing
of the  duplicate. He  was as  much bound to issue it without the
said addition  of fifteen  percent, as he would have been,had the
order for such addition not been made."


                          CHAPTER XVI:

                  MANDAMUS TO COUNTY TREASURER


     That a mandamus will lie to compel a county treasurer to pay
an account  legally chargeable  to the county, and which has been
audited and  allowed by  the proper  authority, seems to be fully
settled. (The  People v.  Edmunds, 19  Barb. 472.) If however, he
has not  the funds to pay the account, or has it not in his power
to provide  them, the  issuing of  the mandamus  would be an idle
ceremony, and ought not to issue.

     But if  he might  have had  the funds, had he not misapplied
them, he is as much bound to pay, as though he actually had them.
Therefore, when public moneys are raised by taxation for specific
purposes, andplaced  in the  hands of  the county treasurer to be
paid out  on the  order  of  certain  auditing  boards,  and  the
treasurer pays  out the  money for  other purposes than those for
which the money was raised, he may, notwithstanding, be compelled
to pay  the orders  drawn on  him to satisfy claims for which the
money was  raised. (The  People v.  Stout, 23  Barb.,339. Huff v.
Knapp, 1  Seldon, 65.  The People  v. Edmonds,  15 Barb., 529, 12
Barb., 607, 217. Adsit v. Brady, 4 Hill, 634.)

     And where  by  law,  and  immemorial  usage,  the  court  is
authorized to  allow the fees of sheriff, and other executive and
ministerial officers,  while in attendance at their sessions, the
determination of  the court  upon the  amount of  such costs  and
fees, is  final and  conclusive. And  on presentation  of a claim
thus allowed,  to the  treasurer of the county, it is his duty to
pay it,  and if  he refuses,  a mandamus  lies to  compel him. An
attempt on  his  part  to  exercise  supervisory  powers,  is  an
assumption of authority. (Baker v. Johnson, 41 Maine, 15.)

     A mandamus, however,will not be awarded to compel the county
treasurer to  pay anaccount  audited  and  allowedby  the  proper
auditing board, which was not a legal county charge.

     In the  case of  The People  v. Lawrence,  6 Hill,  244, the
supervisors of the county of New York, audited and allowed to the
relator his  account for  expenses incurred  by him  in defending
himself as  one of  the special justices in the city of New York,
on an  impeachment and  trial before the County court. The county
treasurer refused  to pay  the account  thus audited and allowed,
and an  application was  made to the Supreme court for a mandamus
to compel him.

     Bronson, J.,  in delivering  the opinion of the court, says:
"Whatever appearance  of justice  there may  be in  charging  the
expenses of  the account  upon the county, it is enough for us to
say, that  this consideration addresses itself exclusively to the
legislature. If  this had  been a  case where the supervisors had
authority to allow the claim, I agree that it would have been the
duty of  the treasurer  to pay,  without  inquiring  whether  the
account had  been allowed  upon insufficient  evidence, or at too
large an  amount. But as the supervisors had no jurisdiction over
the subject  matter, and  that fact appeared upon the face of the
account, presented for payment, their act was a mere nullity, and
it was the duty of the treasurer to withhold payment."

     So, too,  when the  twelfth section  of an act, defining the
duties and  liabilities of the officers of the city government of
New York - the organization of the courts therein, and the powers
of the  board of  supervisors, declared that all work to be done,
and supplies  to be  furnished for  the corporation  involving an
expenditure of more than two hundred and fifty dollars, should be
by contract,  founded on  sealed bids,  or on  proposals, made in
compliance with  public notice,  for the full period of ten days;
and all  such contracts when given, should be given to the lowest
bidder, with  adequate security.  And section fifteen of the same
act declared, that no contract by the supervisors should be valid
unless  expressly   authorized  by   statute,  and  such  as  are
authorized must  be made  in the  manner provided  by the twelfth
section of  the act;  and the relators were employed by the board
of supervisors  of the  city and  county of  New  York,  to  make
certain repairs of books in the register's office, and their bill
therefor was  duly presented  to the  board of  supervisors,  and
audited and allowed by them, at the sum of $2,644.50, it was held
by the  court, that  the contracts were not such as could be made
by the  board in  the manner  they were  made. That  although the
necessary expenses incurred in keeping the property of the county
in repair,  and to  preserve it  from decay,  and keep  it  in  a
condition for  use, is  a proper and legal county charge, yet the
board of  supervisors could create no legal liability against the
county by  having this  work done  in  direct  violation  of  the
provisions of  the act;  that no  charge had thereby been created
against the  county, and  that  the  court  should  not  award  a
peremptory mandamus to the county treasurer commanding him to pay
the accounts,  but that  it would  even be  its duty, on a proper
application, to restrain him from so doing. (The People v. Stout,
23 Barb., 349.)


                          CHAPTER XVII:

                MANDAMUS TO COUNTY COMMISSIONERS


     The powers of courts, in proper cases, to compel by mandamus
the commisssioners  of a  county to perform their duty, seems not
to be  questioned. It will not, however, be called into action on
every trivial  occasion; and  although a peremptory mandamus will
be awarded  to compel the commissioners of a county to levy a tax
for the satisfaction of ajudgment against the county, should they
refuse, or  for a  long time neglect to do so, yet they will not,
when there  has been  no unnecessary,  unreasonable or  vexatious
delay. (Tillson, Jr. v. The Commissioners of Putnam County, 19 O.
Rep., 415.)

     And where subscription had been made by the commissioners of
a county  for stock  in a  railroad company,  in pursuance  of  a
statute authorizing  the commissioners  to so  subscribe, and the
county had  thereby become  absolutely bound by contract; and the
commissioners, in pursuance of the law, having elected to deliver
the bonds  of the  county to  the  company,  in  payment  of  the
subscription, and afterwards, upon demand, refusing to do so, and
showing no  cause for  such refusal,  except that  the law was of
doubtful constitutionality,  it was  held that a writ of mandamus
is the  proper remedy  to enforce  the delivery,  if the  law was
found to  be constitutional. (The C.W.&Z. Railroad Company v. The
Commissioners of  Clinton County,  1 O.S.  Rep., 77;  English  v.
Supervisors, 19 Col., 172.)

     And when  a claim  is presented  to  the  supervisors  of  a
county, of  such a character that it is their duty to proceed and
act upon it, and they neither allow nor disallow it by any formal
action, their  conduct is equivalent to a rejection of the claim;
and if  their refusal  to allow  or disallow  proceeds, from  the
opinion that  the claim is not a legal one, and in the opinion of
the court  it is  one which  the county  is legally bound to pay,
they will  be ordered to allow it. (The People v. The Supervisors
of Richmond County, 20 N.Y. Rep., 253.)

     So in  the case of The State of Ohio v. The Commissioners of
Clinton County,  6 O.S.  Rep., 280,  it was  held that  it is  in
general the  duty of  the commissioners of a county to ascertain,
as near  as may  be, the amount necessary to pay the debts of the
county, and  to make  an assessment  for that  purpose; and  that
mandamus will  lie to  compel the  performance of  such duty when
neglected.

     In that  case the  county commissioners had issued interest-
paying bonds   to  a railroad company, in payment of subscription
to the  capital stock of the road. There was an agreement between
the commissioners  and the company that the latter should pay all
the interest  which "shall or may accrue on the bonds." The bonds
were indorsed by the railroad company to the relator. The company
paid the  interest for  three years, but failed to pay the fourth
and fifth  year's interest.  The relator  thereupon asked for and
obtained a  peremptory mandamus,  requiring the commissioners, at
their next session, to levy a sufficient amount of tax to pay the
whole of the interest then due and unpaid.

     It was  held that  in such case it was the duty ofthe county
commissioners to ascertain whether the railroad company would pay
the interest,  and if not, the county being primarily liable, the
board of  commissioners should  have made  provision therefor. It
was also held, that as it satisfactorily appeared that no fund or
provision whatever  had been  made for payment at the treasury of
the county,  wehre the  interest warrants  were made  payable, no
proof need  be made  of demand  of payment  of the coupons before
proceeding against the commissioners by mandamus; that in fact no
demand was necessary.

     A  mandamus  will  undoubtedly  lie  to  compel  the  county
commissioners to accept and approve a sheriff's official bond, if
such as  is required by law, when it is made their duty to do so,
and they  neglect or refuse. But if the relator's election to the
office of  sheriff has  been contested before the court of Common
Pleas, and  it was  found by  said court that the relator was not
duly elected  or entitled  to  the  office,  while  such  finding
remains not  reversed or  set aside, mandamus will not lie. As it
is a  high prerogative  writ, it  will be  awarded only  in cases
where there  is a  clear legal  right, and the party has no other
adequate remedy.

     And the  relator will  not be  entitled to  the writ in such
case, although he has filed his petition in error in the district
court of  the county  to reverse  said judgment  of the  court of
Common Pleas,  and has  procured from  one of  the judges  of the
district court  a writ  of supersedeas. The petition in error and
supersedeas does  not vacate  the judgment.  The judgment retains
its vitality  and force  until reversed or set aside. If reversed
or set  aside on  the hearing  of the  petition in  error, it  of
course ceases  to be;  but if  affirmed, it is the judgment to be
executed. (The  State of  Ohio v.  The Commissioners  of, &c., 14
O.S. Rep., 515.)

     When county  commissioners have  a discretion  andproceed to
exercise  it,   courts  have   no  jurisdiction  to  control  the
discretion by  a writ  of mandamus; but if they refuse to act, or
to entertain the question for their discretion, incases where the
law enjoins  upon them to do the act required, courts may enforce
obedience to  the law  by a  mandamus, when no other legal remedy
exists.

     As when  the commissioners  of a  county refuse  to allow  a
claim for  services, as  a county  charge, if,  in fact,  it be a
legal charge,  the  proper  court  may  instruct  and  guide  the
commissioners in  the execution  of  their  duty  by  a  writ  of
mandamus, and  compel them to admit the claim as a county charge,
or, in  other words,  set them  in motion without controlling the
exercise of  their judgment and discretionas to the amount proper
to be  allowed. (Hull  v. The  Supervisors, &c.,  19 Johns. Rep.,
259; 18 Johns., 242; 7 cowen, 363; 3 Mich., 475.)

     So where it is made the duty of county commissioners to open
and compare  election returns, and to declare and certify who has
the highest number of votes for a certain office, and the relator
actually receives  the highest  number of  legal votes,  and  the
commissioners refuse  to perform  their duty  by so declaring and
certifying, they  may be compelled to do so by mandamus; but when
the election  for a  certain town  was illegal,  unauthorized and
void, and  the commissioners for that reason refuse to receive or
count the  returns from such town, mandamuswill not lie to compel
them. (Ellis v. The County Commissioners, 2Gray'sRep., 370.)

     So, where a statute had charged upon the respective counties
any deficiency  which might arise upon the sale of land mortgaged
to the  commissioners ofloans,  and had  directed that the amount
should be  raised by  the board  of supervisors;  and the case of
such deficiency  having occurred  in the  county of Columbia, the
attorney-general procured a mandamus to compel the supervisors to
do their  duty by  raising the  money to meet the deficiency. The
question was  presented by a demurrer interposed by the attorney-
genreal to  the return  of the  board of  supervisors, and on the
argument their  counsel argued  that mandamus  was not the proper
remedy, the county, as they contended, being liable to an action.
The answer  of the  court to  this position,  as set forth in the
opinion of  Chief  Justice  Savage,  in  giving  judgment  for  a
peremptory mandamus,  was as  follows: "Is this a proper case for
mandamus? It has oftenbeen decided in England, and by this court,
that a  mandamus will  not be  granted when  there is a remedy by
action. The  party asking  for a mandamus must have a clear legal
right, and  no other  appropriate specific remedy. (2 Cow. 444; 1
Wend. 325; 7 Tenn. R., 396, 404.) If an action lies in this case,
then a mandamus should be refused; I think anaction wouldnot lie.
The statute  directs the  supervisors to  levy  and  collect  the
amount of  the deficiency;  it  is  a  duty  imposed  upon  those
officers which should be performed by them: but for this neglect,
the county in its corporate capacity, should not be punished, nor
does any  liability attach  to the county to pay the money in any
way other  than that  pointed out  in the  statute. Should  it be
thought  that   the  offending   supervisors  ought   to  respond
personally in  damages, which  is  certainly  very  questionable,
still there  is no  principle which would graduate the damages to
the deficiency  which would  arise from the mortgage in question;
and for aught the court can know, the money possibly might not be
collected in  that way.  Besides, the  law does  not  contemplate
satisfaction in  any other  manner than by an assessment upon the
taxable property  of the county. An action, therefore, is not the
appropriate and  specific remedy." (The People v. The Supervisors
of Columbia County, 10 Wend. 363.)

     This opinion,  so far  as it  denies the  liability  of  the
county to an action may be somewhat questionable. Yet is has been
approvingly  cited   as  authority,  "for  holding  that  when  a
particular method  of raising  money for local public purposes is
prescribed by  statute, the  party entitled  to receive it, has a
right to  the full  and perfect execution of the power conferred,
which may  be enforced  by the  writ of mandamus." (The People v.
Mead, 24 New York, 123.)

     And when  money is collected of the taxpayers, and placed in
the hands, or subject only to the order of the commissioners, for
the purpose  of being  paid to certain creditors, in pursuance of
specific statutory  directions, and  the commissioners  refuse to
make  the  appropriation,  mandamus  is  an  appropriate  remedy,
although an  action might  be maintained against the county. (The
People v. Mead, et al., 24 New York, 121.)

     But if  the money  had not been actually raised, and paid by
the taxpayers into the treasury, and the commissioners whose duty
it is,  refuse to  credit and  allow a  legal claim  against  the
county, there  are cases favoring the view that mandamus will not
lie. (Ex  parte Lynch,  2 Hill,  45; 1  Tenn. Rep.,114; 2 Cowen's
Rep.,444; 1  Wend. 325;  10 John. 484; 10 Wend. 367; 6 Hill, 243;
12 John. 415; 19 John. 259; 1 Kernan's Rep., 573.)

     The case  of ex  parte Lynch,  2 Hill's  Rep.,  45,  was  an
application for  a mandamus to compel the supervisors of the city
and county  of New  York to  audit and  allow the  salary  of  an
associate judge  of the  general sessions. The law organizing the
court, provided a salary of $2,000 to be paid by the council, out
of the  city treasury, in quarterly payments. By a subsequent law
"the mayor, recorder, and aldermen of the city, as supervisors of
the city  and county of New York, are directed to audit and allow
the judges'  account for arrears of salary on or before the tenth
day of  July thereafter;  and after  that time quarterly, as such
salaries might  become due." It was maintained by the court, that
an  action   might  be  sustained  by  the  relator  against  the
corporation, and  that therefore mandamus would not lie to compel
the supervisors to audit and allow the claim. This is certainly a
strong case against the right to issue the writ in any case where
an action  can be  maintained against  the county,  and at  first
thought, it  may seem a little difficult to reconcile it with the
case of  The State  of Ohio  v. The  Commissioners and Auditor of
Clinton County,  6 O.S.  Reps., 280, before cited, and The People
v. Mead,  et al.,  24 N.Y.  Reps., 121.  But a distinction may be
made between compelling the commissioners to perform the specific
duty imposed  by statute,  or ordering a levy to pay a claim, the
amount of  which is  fixed, and its payment directly provided for
by law,  and the  compelling them  to audit and allow a claim not
definitely fixed  by law.  In the  former case, the law has fixed
the amounts  to be  paid. A  suit and judgment could not make the
obligation more obligatory or definite. And if put into judgment,
would yet  bein  no  better  condition  for  compelling  payment,
without the  aid of mandamus. In the latter case, however, as the
amount is  not definitely  fixed by law, and the existence of the
obligation, and  the propriety  of allowing  it,  depending  upon
facts and circumstances, the claimant should pursue his remedy by
action. The  case of  Burnet v. The Auditor of Portage County, 12
O. Rep., 54, before cited, seems to favor this distinction.

     It seems  unquestionable that  a right of action for damages
generally exists  against public  officers, who refuse or neglect
to perform their duty, in favor of those persons whose rights are
injuriously affected  by such neglect of duty. But this remedy by
action against  the officers  is ofsuch  doubtful  and  uncertain
character as  not to supersede that by mandamus. The unliquidated
damages to  be assessed  by ajury  would not  necessarily be  the
amount due  the party.  (The People v. Mead et al., 24 N.Y. Rep.,
120; ex  parte Lynch,  2 Hill's  Rep., 45; Strong, petitioner, 20
Pick.Rep., 497.)

     In the case of McCollough v. The Mayor of Brooklyn, 23 Wend.
458, it  was said  by Judge  Bronson, that "although as a general
rule a  mandamus will not lie where the party has another remedy,
it is  not universally  true  in  relation  to  corporations  and
ministerial officers.  Notwithstanding they  may be  liable to an
action on  the case  for a neglect of duty, they may be compelled
by mandamus to exercise their functions according to law."

     And in the case of The People v. The Supervisors of Columbia
County, 10  Wend., 363,  it was  said that  "should it be thought
that the  offending supervisors  ought to  respond personally  in
damages, which  is certainly very questionable, still there is no
principle which  would graduate  the damages  to  the  deficiency
which would  arise from  the mortgage  in question; and for aught
the court  can know,  the money, possibly, might not be collected
in that way."

     But in apparent opposition to this doctrine, see the case of
The People  v. The  Supervisors of Chenango County, 1 Kern. Rep.,
573, it was at least strongly intimated by the court in that case
that where the relator has a right of action against the officers
or other person promoting the injury, that mandamus will not lie.
The decision  of the  court in that case, however, was also based
on another  ground, namely:  That the  supervisors had  no  legal
control over  the delinquent  parties  to  compel  them  to  make
restitution.

     In that case town assessors had assessed the relator for his
personal estate,  when he  was not  a resident of the town at the
time when  the assessment  was made. On such assessment the board
of supervisors  of the  county imposed  a tax  upon the  relator,
which was  collected by  a seizure  and sale of his property upon
their warrant  issued to  the collector.  The relator  sought  to
compel, by  mandamus, the  supervisors to audit and allow a claim
in his  favor against  the county, for the amount of the tax thus
collected. It  was maintained  by the  court that  the  assessors
acted without  jurisdiction in  assessing the relator's property,
and were  liable, and  might have been prosecuted for their acts,
in subjecting  the relator  to the  payment of  an unfounded  and
illegal tax;  that the  relator had, therefore, a legal remedy by
action. And  the  legitimate  inference  to  be  drawn  from  the
reasoning of  the court  is, that in the opinion of the court the
case was not such as should take it out of the general rule, that
a party  cannot have  a remedy  by mandamus  when he  has a legal
remedy by action.

     In the  case of  Kendall v.  Stokes et  al., 3 Howard's U.S.
Rep., 87, the doctrine which seems to be maintained is, that when
a public officer, whose duty it is to audit and allow an account,
or perform  any other  ministerial duty,  refuses to  do so,  the
party who  is entitled  to the allowance is interested personally
in the  performance of  the duty,  may resort  to his  remedy  by
mandamus to  compel the  officer to  perform his  duty, or he may
prosecute a  suit for  damages against  such officer.  And it  is
distinctly held  that if he prosecutes his remedy by mandamus, it
is a bar to his action for damages.

     In that  case Kendall,  who was  the Postmaster General, had
refused to  credit the  defendants in  error on  the books of the
Post office  Department, with  certain amounts to which they were
entitled. They  had sued  out a  writ of mandamus, and procured a
peremptory writ  compelling him  to give the credit, which he had
done; and afterwards they brought suit against Kendall to recover
their damages,  sustained by reason of his refusal to do so prior
to the time of the issuing of the mandamus.

     Chief Justice Taney, in delivering the opinion of the court,
said: "Now,  the former  case was between these same parties, and
the wrong  them complained of by the plaintiffs, as well asin the
case before  uson  the  fifth  count,  was  the  refusal  of  the
defendant to  enter a  credit on  the books  of  the  Post-office
Department for  the amount  awarded by  the solicitor.  In  other
words, it was for the refusal to pay them a sum of money to which
they were  lawfully entitled. The credit on the books was nothing
more than  the form  in which  the act of Congress, referring the
dispute to  the solicitor,  directed the  payment to be made. For
the object  and  effect  of  that  entry  was  to  discharge  the
plaintiff from  so much  money, if  on other  accounts they  were
debts to  that amount;  and if no other debt was due from them to
the United  States, the  credit entitled  them to receive at once
from the  government the  amount credited. The action of mandamus
was brought  to recover  it, and  the plaintiffs  show  by  their
evidence that  they did  recover it in that suit. The gist of the
action in  that case  was the  breach of duty in not entering the
credit, and  it was  assigned by the plaintiffs as their cause of
action. The  cause of action in the present case is the same, and
the breach  here assigned,  as well as in the former case, is the
refusal of  the defendants  to enter this credit. The evidence to
prove the  plaintiffs cause  of action  is also identical in both
actions. Indeed, the record of the proceedings in the mandamus is
the testimony  relied on  to show  the refusal  of the Postmaster
General, and  the circumstances  under which  he refused, and the
reason he  assigned for  it. But  where a  party has  a choice of
remedies for a wrong done to him, and he elects one, and proceeds
to judgment,  and obtains  the fruits  of hisjudgment, can he, in
any case,  afterwards proceed  in another suit for the same cause
of action?  It is true that in the suit by mandamus the plaintiff
could recover  nothing beyond  the amount  awarded; but they know
that when they elected the remedy.

     "If the  goods of  a party  are forcibly  taken  away  under
circumstances of violence and aggravation, he may bring trespass,
and in  that form  of action  recover not  only the  value of the
property, but  also what are called vindictive damages - that is,
such damages  as the  jury may think proper to give to punish the
wrong-doer. But if instead of an action of trespass, he elects to
bring trover,  where  he  can  recover  only  the  value  of  the
property, it never has been supposed that after having prosecuted
the suit  to judgment,  and received  the damages awarded him, he
can then  bring trespass upon the ground that he could not in the
action  of   trover  give   evidence  of   the  circumstances  of
aggravation, which entitled him to demand vindictive damages. The
same principle  is involved  here. The  plaintiffs show that they
have sued  for, and  recovered in  the mandamus  suit,  the  full
amount of  the award;  and having  recovered the  debt, they  now
bring another  suit upon the same cause of action, because in the
former one  they could  not recover  damages for the detection of
the money.  The law  does not permit a party to be twice harassed
for the  same cause  of action; nor suffer a plaintiff to proceed
in one  suit to  recover the  principal sum  of money,  and  then
support another  to recover  damages for  the detention.  *  *  *
Whenever, therefore,  a mandamus  is applied  for, it is upon the
ground that  he cannot  obtain  redress  in  any  other  form  of
proceedings. And  to allow  him to  bring another  action for the
very same  cause  after  he  has  obtained  the  benefit  of  the
mandamus, would  not only  be harassing  the defendant   with two
suits for  the same  thing, but  would be  inconsistent with  the
grounds upon  which he  asked for  the mandamus, and inconsistent
also with the decision of the court which awarded it."

     The same  case makes  exceptions to the general rule, that a
proceeding in  mandamus is  a bar  to an  action for  damages, or
rather limits and confines it to actions against the officers who
neglect or  refuse to perform their duties. For it maintains that
where one  has been  unlawfully excluded  from an office, and has
been compelled to resort to an action by mandamus, to procure his
admission thereto, he may, notwithstanding, maintain an action of
assumpsit or  case, to  recover the  emoluments  which  had  been
received by  another, or of which he had been deprived during the
time of exclusion.

     While all  the cases agree that mandamus will not lie, where
the relator  has a  complete, specific,  and adequate  remedy  by
action in  some otherform,  yet there seems to be no general rule
for determining  when an  action against  the delinquent  officer
would be a complete, specific, and adequate remedy. The mere fact
that an  action will  lie,  does  not  supersede  the  remedy  by
mandamus. For  although an  action may be sustained, yet from the
facts and  circumstances of  the case, it may be doubtful whether
such action  will afford  the relator a complete remedy; in which
case mandmaus should be awarded.

     It has  been maintained  as a  well settled  principle, that
when the  legislature, under the right of eminent domain, and for
the prosecution  of works  for public  use, authorize  an act, or
series of  acts, the  natural and  necessary consequence of doing
which will  be damage  to the  property of  another, and  provide
amode for  the assessment  and payment  of the damages occasioned
bysuchwork, the  party authorized, acting within the scope of his
authority, and  not  guilty  of  carelessness  or  negligence  in
executing such  work, is not a wrong doer, and an action will not
lie as  for a tort. The remedy, therefore, is by the statute, and
not at  common law.  And when  the  remedy  pointed  out  by  the
statute, is an assessment of damages by the county commissioners,
and they  neglect or  refuse to  proceed and  perform such  duty,
mandamus will lie to compel them.

     This principle  was recognized  and applied  in the  case of
Dodge and  another v.  County Commissioners of Essex, 3 Metcalf's
(Mass.) Rep.,  380. That wasan application for a writ of mandamus
to the  commissioners, requiring  them to  assess damages for the
petitioners against  the Eastern  Railroad Company. The facts, as
set forth  in the  petition, and  admitted by  the answer  of the
commissioners, were,  that the  plaintiffs were  owners of  a lot
land in  Beverly, with  a house thereon, situated near the limits
of the  railroad, but not within them; that the railroad was near
a ledge  of rocks; that the company by the necessary operation of
blasting said  ledge of  rocks, for  the purpose of grading their
railroad, greatly  damaged, and  nearly destroyed the petitioners
house. It was contended on the part of the Railroad Company, that
under the  provisions of  the statute  respecting railroads,  one
cannot have  compensation for  damages, whose lands have not been
directly taken  for the  site of  the railroad, nor for supplying
materials for  its construction, and that the remedy for a damage
like that  of  the  petitioners,  where  no  land  was  taken  or
appropriated, was  not to  be sought  by an  application  to  the
county commissioners,  but  by  an  action  at  common  law.  The
statutory remedy  in such  case was  as follows:  "Every railroad
corporation shall  be liable  to pay  all damages,  that shall be
occasioned by  laying out, and making and maintaining their road,
or by  taking any  land or materials as provided in the preceding
section."

     Shaw, C.J.,  in delivering  the opinion  of the court, said:
"The court  are of opinion, that the provision is broad enough to
embrace  damages  done  to  real  estate,  like  that  which  the
petitioners have  sustained. It  is like  the  case  of  a  house
situated on  the brink  of  a  deep  cutting,  so  as  to  become
insecure, and  so that  it is  necessary to  remove it.  It is  a
damage occasioned by the laying out and making of the road. * * *
An authority  to  construct  any  public  work  carries  with  an
authority to  use the  appropriate means.  An authority to make a
railroad, is  an authority  to reduce  the line  of the road to a
level, and  for that purpose to make cuts, as well through ledges
of rock as through banks of earth."

     "In a remote and detached place, where due precaution can be
taken to  prevent danger  to persons,  blasting by gunpowder is a
reasonable and  appropriate mode of executing such a work; and if
due precautions  are taken  to prevent  unnecessary damage,  is a
justificable  mode.   It  follows   that  the   necessary  damage
occasioned thereby  to a  dwelling house or other building, which
cannot be  removed out  of the  way of such danger, is one of the
natural and  unavoidable consequences  of executing the work, and
within the provision of the statute."

     "Of  course,  this  reasoning  will  not  apply  to  damages
occasioned by  carelessness or  negligence in  executing  such  a
work. Such  careless or  negligent act would be a tort, for which
an action  at law  would lie  against him  who commits or him who
commands it.  But where all due precautions are taken, and damage
is still  necessarily done  to fixed property, it alike is within
the letter  and  the  equity  of  the  statute,  and  the  county
commissioners have  authority to  assess the  damages. This court
are therefore  of opinion that an alternative writ of mandamus be
awarded to  the county  commissioners, to assess the petitioner's
damages, or return their reasons for not doing so."

     And where county commissioners refuse or neglect to estimate
the damages  caused  by  laying  out  a  railroad,  turnpike,  or
highway; such  duty being  enjoined upon  them by law, a mandamus
would issue  to compel  them to  do it, that is to exercise their
judgment upon the matter. But having estimated damages, if either
party should  be dissatisfied, and apply for a jury, the granting
of the  warrant would  be  a  ministerial  duty,  enforceable  by
mandamus, when  the remedy by appeal is given to the dissatisfied
party. And  if they  refuse to  assess damages  because in  their
judgment the  petitioner does  not own  the land,  the latter  is
entitled to  the judgment  of a  jury upon  the question,  and  a
mandamus lies  to compel  them to  issue a warrant therefor, when
the issuing  of such  warrant is necessary to enable the party to
take his appeal, and it is the duty of the commissioners to issue
it. (Carpenter  v. Bristol,  21 Pick. 258; Smith v. The Mayor and
Alderman of Boston, 1 Gray, 72.)

     And when  county commissioners,  in laying out a highway, or
ordering specific  repairs thereon,  make  no  return  of  damage
sustained by  a party  who has  applied to  them to  estimate his
damages, this  is equivalentto  a return that he has sustained no
damage. (8 Cush. (Mass.) Rep.,360.)

     It has  been held  that the  writ  of  mandamus  is  a  high
prerogative writ,  and it being granted or refused, is within the
sound discretion  of the  court. While this, as a general rule is
correct, yet,  when the  relator has a clear, vested, legal right
to the  thing withheld, he is entitled to the remedy by mandamus,
although to  give him  the thing, would not appear to be strictly
inaccordance with the principles of equity.

     This doctrine  was recognized  and acted upon in the case of
Harrington v.  The County  Commissioners of  Berkshire, 22  Pick.
263. The  facts were  fully stated  in the  opinion of the court.
Shaw, Ch.J.,  in announcing  the opinion of the court, said: "The
petition and  answer on  which this  question arises,  presents a
novel and in many respects a peculiar and extra-ordinary case for
the consideration  of the  court.  It  appears  that  the  county
commissioners, in  pursuance of the powers vested in them by law,
having given this notice required, and conformed generally to the
rules  of  law,  adjudicated  upon  the  common  convenience  and
necessity of a public highway, and thereupon located and laid out
the same, passing to some extent over the land of the petitioner.
The usual  orders for  making and fitting the road for public use
were passed.  The petitioner  applied for  a jury  to assess  his
damages; and  after one  attempt, which  proved  unsuccessful  on
account of  some informality,  a verdict  of the  sheriff's jury,
assessing his  damages, was  duly returned to the court of Common
Pleas and  accepted, and  certified in  due form  of law  to  the
county commissioners.

     "Before the proper time had arrived for granting an order on
the treasury  for the  payment of  the complainant's damages, and
before his  land  had  been  entered  upon,  or  his  possessions
distrubed, measures  were taken  for the  discontinuance  of  the
highway,  and   subsequently  an   order  or  decree  was  passed
discontinuing it.  Therefore the county commissioners declined to
issue an  order for  the payment of the complainent's damages, on
the ground  that as his land had not been entered upon, and after
the order  of discontinuance  never could be entered upon, he had
sustained no  real damages, and was not entitled to claim payment
according to the verdict. It is now contended for the respondents
that it  would be  highly unjust  and inequitable  to require the
public to  pay the  whole value  of the land for a naked right or
privilege which  they have never used, and now never can use; and
that it  is equally unjust for the complainant to demand a sum of
money by  way of  damage, for  a loss which he has not and cannot
sustain."

     "If there  were any  middle course  to be  adopted,  if  any
apportionment could  be made  by which  the complainant  could be
indemnified for  the actual  trouble and  expense to which he has
been subjected,  and the  public exempted from further liability,
it would  be more  in accordance  with principles  of equity; but
there seems  to be  no legal principle in which this can be done.
It  was   suggested  that   he  should   claim  damages  for  the
discontinuance; but the discontinuance, as it relieves his estate
from a  burdensome service,to  which it  was subject by perpetual
easement, is a benefit and not a damage; indeed, the damage given
on laying  out the  road is  a  compensation  for  imposing  this
service upon  the land.  It is,  therefore, a  question of  legal
right to  the sum fixed by verdict, and the adjudication upon it,
by the  court having  jurisdiction of the subject; and it appears
to be a necessary consequence that the complainant is entitled to
the whole  amount or  to no  part  of  it.  If  the  adjudication
discontinuing  the   road  vacated  all  the  prior  proceedings,
including the  verdict and  judgment of the court of Common Pleas
accepting it,  that judgment  is in effect reversed and annulled,
and then the complainant can make no claim under it; otherwise it
remains in  full force,  and he is entitled to the entire benefit
of it. Such being the question, the court are of opinion that the
petitioner, on the return and acceptance of the verdict, acquired
a  vested   right  to   his  damages,  and  that  the  subsequent
discontinuance of  the highway  did not  divest  or  defeat  that
right. The  subsequent discontinuance  of the  highway is  a new,
distinct,  substantive   proceeding,  which  does  not  annul  or
disaffirm the  former proceeding, but on the contrary assumes and
acts upon  it  as  a  valid  proceeding.  It  was  a  contingency
contemplated at  the time  of laying out the highway, inasmuch as
the easement  for the  public was  always held at the will of the
public, to  be exercised  by their  competent agents.  When it is
exercised, it  grants no new rights to the owner of the property,
but simply  leaves him  in the  enjoyment of  a right  which  was
always his, as incident to his ownership."

     "The enjoyment  of  this  latter  right,  therefore,  cannot
deprive him of his former vested right to damages - the one being
entirely consistent with the other. The commissioners, therefore,
were not  justified in withholding from the complainant his order
for the  payment of  his  damages,  conformably  to  the  verdict
accepted by  the court  of Common  Pleas  and  certified  to  the
commissioners. The  court do  therefore order that an alternative
writ of  mandamus issue,  directed to  the county  commissioners,
requiring them  to draw  an order  on the county treasury for the
payment to  the complainant  of the amount due to him pursuant to
the verdict,  or to  make a return of the writ, setting forth the
reasons and causes why they have not done it."

     It was  also maintained by the respondents that even if they
were not authorized to withhold payment, yet mandamus was not the
proper remedy.  That the remedy by writ of mandamus was an extra-
ordinary remedy,  to be resorted to with great caution, and ought
not to  be had  when there  is any  other adequate  remedy  in  a
regular course  of judicial  proceeding. But  it was  held by the
court that  it was, to say the least, doubtful whether any action
of debt or case would lie in favor of the complainant, as the act
required to be done on the part of the county commissioners was a
ministerial and  not a  judicial act, and that, therefore, it was
the opinion of the court that the complainant was entitled to the
remedy prayed for.

     And where  a town  was entitled  by a  statute to  a jury in
relation to  the location  of a  highway, and  the jury impaneled
were unable  to agree,  and were discharged, it was held that the
town was  entitled to  another jury, although the statute made no
express provision  for such  acase; that  the statute intended to
secure to  parties, situated in the condition of the petitioners,
the right of a trial by jury: that such trial necessarily implies
an effectual trial, resulting in a verdict; that a hearing before
a jury  impaneled for  the purpose,  but who  cannot agree  in  a
verdict, is  not such  trial; that  a power must necessarily rest
somewhere to order a new hearing in such case; that by reasonable
construction of  the statute  and analogy  to other  cases,  such
power was  vested in  the county  commissioners, and that as they
declined to  exercise it,  in a  case where  the petitioners were
entitled to  the benefit  of it,  the writ  of mandamus  ought to
issue. (The  Inhabitants of Mendon v. The County of Warcester, 10
Pick. 235.)

     And  where,   by  law,   it  is  made  the  duty  of  county
commissioners to  take the supervision of a highway, to determine
whether it  should remain  or be discontinued, and if they should
not discontinue ti, it was their duty to complete, at the expense
of the  county, such  parts as remained unfinished, re-assess the
damages on  such parts,  and cause  the same  to be  paid by  the
county, it  was held  that a mandamus would lie to compel them to
perform such duty.

     Neither is it necessary, in such cases, that there should be
any law,  specifically directing  them to  take the supervison of
that particular road.

     A law  providing that  "whenever any highway is already laid
out, or  altered, in  any county,  which it  would be the duty of
such county  to make,  under the  provisions of  the law, and the
working  of   the  same   is  not   already  commenced   by  said
commissioners of  highways, or  by them contracted to be made, it
shall be  the duty of said county commissioners to do and perform
all the  acts in  relation to  the making  of the  same, which it
would be  incumbent upon the said commissioners of highways to do
and perform  if this  act had  not been passed," imposes upon the
commissioners the  duty  of  taking  supervision  of  a  highway,
previously established by a court of Sessions.

     But upon the petition of a town for a mandamus to the county
commissionersto take  supervision of,  and to  finish a part of a
highway which  had  formerly  been  laid  out  by  the  court  of
Sessions, an  alternative  mandamus  was  issued,  to  which  the
commissioners made  return that the part in question, which was a
bridge, had  been built by the town, with the aid of individuals,
and that  the expense  had been voluntarily incurred by the town,
and the individuals, after the enactment of the statute providing
for the  payment ofsimilar  expenses out  of the county treasury;
and  that   the  bridge,  immediately  after  its  erection,  was
dedicated to  the public  without any  expectation on the part of
the town  that the  expense would be reimbursed by the county; it
was held,  that as  the grant  was made  by the  town freely  and
deliberately, with  a full  knowledge of  the law,  and on a good
consideration, namely;  the  voluntary  contributions  of  others
towards an  object of  common and public benefit, that the return
disclosed  a  fair  legal  reason  for  not  performing  the  act
complained of.  (The Inhabitants  of Springfield  v.  The  County
Commissioners of Hampden, 10 Pick. 59.)

     Where county commissioners act in a judicial capacity upon a
question  properly submitted to their judgment, mandamus will not
lie to  reverse or  control their  decision. Therefore, where the
petitioners represented  that they  were the  owners  of  certain
land; that  the Blackstone  Canal Company, by virtue of their act
of incorporation,  had located and constructed a reservoir to the
Blackstone canal,  by reason  of which  the petitioners' land was
overflowed with  water,  and  rendered  good  for  nothing;  that
certain commissioners, appointed pursuant to the act, had made an
estimate of  the damages  sustained by the petitioners with which
they were  dissatisfied, and upon their application to the county
commissioners, a jury was empaneled to estimate the damages; that
the jury  awarded to  the petitioners  a larger  sum than the one
awarded by the commissioners, and the verdict was returned to the
county commissioners,  and was by them accepted and affirmed; and
that  the   petitioners,  at  the  time  of  the  acceptance  and
affirmation of  the verdict,  moved the  county commissioners  in
writing, to  allow them  their legal  costs in the suit, but that
the motion  was overruled;  wherefore the  petitioners prayed the
court to  issue a  writ of  mandamus to the county commissioners,
ordering them to allow and tax for the petitioners their costs in
the suit,  and to  enter up judgment therefor; it was held by the
court, that  the action  of the commissioners in the matter was a
judicial act,  over which  the court had no power of control, and
therefore a  mandamus  would  not  lie.  (Chase  et  al.  v.  The
Blackstone Canal Company, 10 Pick. 244.)

     So, when  the alternative  mandamus recited that the relator
was appointed Secretary of State to take the census for a certain
town in  the county  pursuant to  the provisions  of the statute,
that he  thereupon entered upon and discharged the duties of such
office until the same was completed, as required by the act; that
the  relator   was  actually  and  necessarily  employed  in  the
discharge of  the duties of said office, and in taking the census
and enumeration  of the  inhabitants of  said town as required by
said act, fifty-nine days; that the relator presented his account
for such  services to  the defendants, duly made out and verified
as rerquired  by law,  at a regular session of the defendants for
allowance, and  that the defendants refused to audit or allow the
said account. It then commanded the defendants to audit and allow
the said account for fifty-nine days' services as such marshal at
two dollars per day, or show cause why.

     The defendants  returned that  at the annual meeting of said
board, held  pursuant to  law, the said relator presented to said
board his account for fifty-nine days' services, which he claimed
to have  rendered as marshal in the town of Lima, in said county,
under and by virtue of the act within mentioned; that said board,
pursuant to the statute in such case made and provided, proceeded
to examine,  settle, audit,  and  allow  said  account,  and  did
examine, settle, audit, and allow the same.

     That upon  such examination  and settlement  the said  board
ascertained and believed, found and determined, that said relator
was not  actually and necessarily employed as such marshal, under
and by  virtue of  said act,  fifty-nine days; and in like manner
ascertained and believed, found and determined, that said relator
was not  so employed over forty days; and thereupon said board of
supervisors audited  and allowed said account of said relator for
the sum  of eighty  dollars pursuant  to the  statute, and  their
duties in that behalf.

     This return  was demurredto  for insufficiency.  The  court,
however, held  taht  in  the  examination  and  decision  of  the
question of  the number  of days  the marshall  was actually  and
necessarily employed,  the board of supervisors acted judicially;
and if  they committed  an error  in  their  decision,  it  found
noground for  the writ of mandamus; that such determination must,
in that proceeding, be regarded asfinal. (The People v. The Board
of Supervisors of Livingston county, 25 Barb. 118.)

     And where  county commissioners, after adjudging that a town
way was required by the wants of the town, and giving notice that
they will lay it out, lay out only a part of it, being of opinion
that the  remainder has  been  rendered  unnecessary,  since  the
adjudication, by  the construction  by the town of another nearly
parallel town  way, will not be compelled by mandamus to complete
it. The  question of  what the  public  convenience  required  is
peculiarly within  the province  of the  commissioners,  and  the
court will  not reverse  their judgment  in t he matter. (HIll v.
The County Commissioners, 4 Gray,414.)

     But where  a statute  creating and  defining the  duties  of
commissioners of  highways provided that "all roads laid out, but
not worked, at the time this act takes effect, shall be subjected
to the  supervison and review of the commissioners aforesaid, and
the said  commissioners  shall  have  all  the  powers,  and  the
counties be  subject to  all the liabilities in reference to such
roads as  are provided  for new  roads by  this act," it was held
that the legislature here had respect to roads before location by
the court  of Sessions, but not finished; including as well those
which had  been partly  worked as those on which no work had been
done, and  they meant to transfer all authority on the subject to
the commissioners; that if they deemed it proper that the road be
made as laid out, it gave them power to do so; or if they thought
it not  proper to  so  work  it,  they  possessed  the  power  to
discontinue it;  and that  a mandamus would lie to compel them to
finish or  to discontinue it, as they might think expedient. (The
Inhabitants   of Springfield v. The Commissioners of, &c, 4 Pick.
68.)

     It has  also been held, that where commissioners of a county
have authority by statute to issue bonds, and are rquired to levy
a tax  to pay the interest coupons as they become due, and having
issued such  bonds, they  neglect or refuse to assess the tax, or
pay the  interest, a writ of mandamus is the proper legal remedy,
and that the Circuit court of the United States have authority to
issue such writ of mandamus against the commissioners, when it is
necessary, as a remedy for suitors in such court. (Knox County v.
Aspinwail, 24 How. (U.S.), 376.)

     The court  will not  grant  a  mandamus  when  it  would  be
fruitless and ineffectual to relieve the relator.

     Therefore when  a mandamus  was prayed for, to issue against
the county  commissioners to  compel them to make an order on the
treasury in favor of the relator, for a sum of money due from the
county to  him, and the commissioners should show for cause, that
there was  no money in the treasury to pay the order, it was held
that this  was a  sufficient cause.  The court, in delivering the
opinion of  the court,  said: "Why  draw an  order  on  an  empty
treasury? The  treasurer would  refuse  payment,  and  there  the
matter would  end. No money can come into the treasury but by tax
on the  county, and that tax the commissioners cannot lay, except
by the co-operation of other persons, even supposing that the act
authorizing the  laying of  a tax for the purchase of the bridge.
If the  object be  obtainable by mandamus, the first step must be
to orderthe  proper persons  to lay  the tax, and it must be laid
for the whole sum at once, &c." (Commonwealth v. Commissioners of
Lancaster County, 6 Bin. 5; Dodd v. Miller, 14 Ind., 433.)

     To warrant  the granting  of a  mandamus, the applicant must
have a  clear legal  right. And  therfore a  bidder in  proposals
issued by  county commissioners  for  estimates  for  any  public
works, acquires  no legal  right, or  cause of action, to enforce
which a  mandamus will  be issued,  until the  contract has  been
actually made with him. (The People v. The Croton Aqueduct Board,
&c., 26  Barb. 240;  The People v. The Canal Board, 13 Barb. 432.
But see  The People  v. The Contracting Board, 27 New York Reps.,
378.)

     The applicant  must not only have a clear legal right to the
thing demanded,  but he  must be without any other specific legal
remedy. Therefore  where a  party overtaxed,  appeals in  dueform
from the  assessors to  the county  commissioners, who refused to
entertain his  appeal, or  to make any record of their proceeding
in the  matter, it was held that he was not entitled to mandamus,
for the  reason  that under the statute he might have appealed to
the court  of Common  Pleas. (James  v.  Commissioners  of  Bucks
County, 13 Penn. State Reps., 72.)

     And where  the supervisors  of a  county have  neglected  to
perform any  duty required  of them  at their annual meeting, and
they are  authorized to hold special meetings for the transaction
of  business,   at  such  times  and  places  as  they  may  find
convenient, they  may be compelled by mandamus to meet again, and
perform it.  Their neglect  to perform their duty imposed by law,
at the  time requied,  cannot modify  the statute. They, or their
successors, are  boundto do  what was required, and on failure to
perform it,  may be  compelled by mandamus, and in some cases are
liable to  a penalty  for their neglect. The ommission to perform
their duty  at the  proper time,  does not  is such case render a
substantial compliance  with  the  statute  impossible,  as  they
ortheir successors inoffice can be convened at another time. (The
People v. The Supervisors, &c.,4 Selden's (N.Y.) REps., 318.)

     It would,  however, be otherwise, if they were authorized to
perform the duty at a specified time which had passed.

     It is  not necessary to the issuing of a mandamus commanding
county commissioners  to perform  official  duties  neglected  by
them, that  the complainant  should have  previously demanded  of
them to  perform their duty. (Commonwealth v. Commissioners, &c.,
Penn. S.R. 237; and see same,277.)

     Where boards  of  supervisors  exercise  both  judicial  and
ministerial functions,  and they  have gone forward and performed
the judicial  act,    and  the  result  of  such  act  raises  an
obligation on  them to  perform a  ministerial  act,  which  they
refuse to  perform, a  mandamus is  the proper  remedy to  compel
performance on  their part;  and this  may be done, although they
may have  reconsidered and  endeavored to  reverse and annul such
judicial act.

     Inferior jurisdictions, such as boards of supervisors, which
derive their  powers from the statute, have no power or authority
to review,  reverse and  annul their  own judicial action when it
has once  been legally  exercised. It  has, therefore,  been held
that when a board of supervisers have, by a legal quorum of their
members,  voted  upona  resolution  "concerning  the  raising  of
money," under  the statutory authority to apportion the tax to be
raised among  the several  towns and  wards of  the  county,  "as
seemed to  them equitable  and just,"  and  such  vote  has  been
entered by their clerk in the book of records required to be kept
by them,  they have exhausted their discretion over that subject;
that they  have thereby  executed a  judicial act,  which  is  in
effect a  judgment final  and conclusive as to any power they can
exercise over  it by way of review or reversal. And if the board,
after having  passed a  resolution of that nature, which has been
entered in  their book  of minutes by the clerk, reconsider their
action  by   a  resolution  for  that  purpose,  and  by  another
resolution again  apportion and  equalize the assessment of value
in the  several towns  and wards, upon a new and different basis,
the second  apportionment will  be held  a nullity; and the board
may be  compelled, by mandamus, to attach collector's warrants to
the tax books made out according to the original resolution. (The
People v.  The Board   of  Supervisors of  Schenectady, 35  Barb.
408.)

     It has  also been  held that  mandamus will  lie  to  compel
supervisors to  renew a license to a ferry owner, who is entitled
to it,  when such  supervisors, through  a mistake  of  the  law,
refuse to do so. (Thomas v. Armstrong, 7 Cal. 286.)


                         CHAPTER XVIII:

          MANDAMUS TO THE OFFICERS OF A MUNICIPAL CORPORATION


     It seems  that mandamus is the proper and appropriate remedy
to compel  a municipal  corporation to  make  provision  for  the
payment of  interest due  upon bonds issued by it in payment of a
subscription  to   the  stock  of  a  railroad  company,  by  the
assessment and  collection of  the necessary taxes; and therefore
where an  act of assembly directed that provision be made for the
payment of  the principal and interest of the debt thus incurred,
by the assessment and collection of a tax, the proper officers of
such corporation  may be  compelled by  mandamus  to  assess  and
collect a  tax for  the payment of the interest. (Commonwealth v.
Pittsburg, 34  Penn. S.R. 496; State v. Davenport, 12 Iowa Reps.,
335.)

     The same  doctrine was  maintained in Graham et al v. Maddox
et al.,  6 American  Law reg. 620. It is there said that the duty
of the  city council  to levy  and collect  the tax  to  pay  the
principal and  interest of  such bonds,  is mandatory, leaving in
the city  council no discretion. It was also held that it was not
an available  legal objection  to the  payment of  such bonds and
their interest,  that the  money  was  squandered,  or  that  the
enterprise has resulted disastrously, and the tax would therefore
be onerous;  that no individual could be excused from the payment
of a  debt because  his business  in which  he had  embarked  his
borrowed money  had proved  a failure; and that a corporation can
have no immunity in this respect above an individual.

     Neither is  it sufficient  answer to  the relator's petition
for a  mandamus, he  being the  holder of the bonds, to aver that
the road has never been completed; that the company has forfeited
their charter,  and by  gross mismanagement have placed it out of
their power  to comply with their engagement in this respect. (11
B. Monroe, 154.)

     So in  Maddox v.  Graham, 2  Met. (Ky.) 56, it was held that
where a city council is required by law to collect a tax upon the
real and  personal property  of the  city, sufficient  in  amount
annually to  pay off the interest upon bonds isued by the city in
payment of a subscription of stock to a railroad company, and the
council refuse  to do  so, and  there is no specific legal remedy
provided for  non-performance,  mandamus  may  be  maintained  to
compel them to discharge that duty, at the instance of holders to
whom the bonds have been passed by the company; and it seems that
an  express  refusal  in  terms  is  not  necessary  to  put  the
defendants in  fault; it  will be  sufficient that  their conduct
makes it apparent that they do not intend to do the act required.

     So in  Carroll v. Board of Police, 28 Miss. (6 Cush.) 38, it
was held that mandamus was the only remedy by which to compel the
board of  police to discharge their duties as public officers, in
levying the tax required by law to pay the debt ofthe county; and
the writ ought to be granted upon all occasions where the law has
established no  specific  remedy,  and  where  justice  and  good
government require it.

     And where  a city  council appointed commissioners to assess
damages to  private property,  by reason of opening a street, who
reported their assessment and a taxation of adjoining property to
pay the  same, and  the city  opened the  street but  refused  to
collect the  tax, it  was held that mandamus was proper to compel
them to do so. (State v. Keokuk, 9 Iowa, 438.)

     And where  it is  made the duty of a town or city council to
elect certain  municipal officers,  and they neglect or refuse to
do their  duty in  that respect,  mandamus is  the proper remedy.
Therefore, where at a meeting of the town council the minority of
the councilors  present delivered  voting papers to the mayor for
certain  persons  to  be  elected  alderman;  the 20may  and  the
majority of the town councilors had been advised that the day was
not the   proper  one for  the election,  the mayor  consequently
declined to  proceed with  the  election,  and  no  election  was
declared, it  was in  fact  the  duty  of  the  council  to  have
proceeded to the election of alderman on that day, had they known
the law.  It was  therupon held  by the court that the act of the
minority was not the act of the 20town council; that the election
had not  been held, but that there had been no election, and that
consequently a  mandamus might issue, calling upon the council to
proceed to  elect alderman.  (Regina v. Bradford, 4 Eng. L. & Eq.
Rep., 194.)

     And where  it is  made the  duty of a city comptroller, upon
the presentation  of  a  certificate  from  the  auditing  board,
allowing a  claim against  the corporation to draw his warrant on
the treasurer, if he refuse to do his duty in that respect he may
be compelled  by mandamus.  But  until  the  auditing  board  has
allowed the  claim and certified to the comptroller, he cannot be
proceeded against  by mandamus,  although it  may appear that the
relator has a valid claim against the corporation.

     Therefore, where  it appeared  that the  relator had a valid
claim against  the city,  and the comptroller had refused to draw
his warrant  on the treasury, and the relator had thereupon asked
for a  writ of  mandamus to  compel him, the writ was refused, on
the ground  that as the law had created an auditing bureau in the
financial department,  with an  auditor of  accounts as the chief
officer, whose  duty it was to "audit, revise, credit, and settle
all accounts  in  which  the  city  is  concerned  as  debtor  or
creditor," it  was not  the duty  of the  comptroller to draw his
warrant on the treasury for the payment of any claim until it had
been allowed by such board. (The People v. Flagg, 17 N.Y.R. 584.)

     Mandamus is  a proper  remedy for  one who has been illegaly
removed from  a municipal  office. But  when one  has practically
deserted, abandoned,  and repudiated  an office, and followed his
own pursuits not connected with, but inconsistent with the duties
of the  office,  he  cannot  compel  the  proper  authorities  to
reinstate him  in office.  Therefore, where  an act was passed to
establish a  Metropolitan Polic  district, bringing  into being a
new system, all of whose officers were then first introduced into
the administration  of the authority ofthe State government under
new names,  and with  greatly  enlarded  duties  and  territorial
jurisdiciton, and  subject to  the authority and control of a new
board of  police; and also providing that the police inthe cities
of New  York and  Brooklyn, officers  and  patrolmen  shall  hold
office and  do duty  under the  provisions of  the  act,  and  as
members of  the police force of the Metropolitan Police District,
it was  held that although no acceptance or new oath of office or
manifestation of  consent on  the part  of an  old member  of the
police force  was necessary  in order to entitle him to the right
to exercise  the duties  of a patrolman under the new act, yet as
the relator  had withdrawn from such police force; had disclaimed
taking such  office and repelled its duties; had followed his own
pursuits having  no connection  with the  police  service  for  a
period of  two years,  a mandamus  ought not  to  be  granted  to
reinstate him  in the  office; that by his conduct he had clearly
vacated the  office, and  that the Board of Police could lawfully
fill his  place. (The People v. The Board of Metropolitan Police,
26 N.Y.R. 316.)

     The case  of  Tatham  v.  The  Wardens  of  Philadelphia,  5
American Law  Reg. 379,  was a  petition pryaing  that a  writ of
mandamus be  awarded commanding  J. E. harned and others, wardens
of the  port of  Philadelphia, to  cause to  be defined  upon the
ground, at  the 20expense of the applicant, the line of low water
bounding their jurisdiction of a certain lot in Philadelphia of a
certain description,  bounded upon  the line of low-water mark by
the river  Delaware. The petition recited that the petitioner was
the owner  of the  lot of  ground so  described, and that he made
application in writing to the board of wardens requesting them to
cause said  line of  low-water mark  to  be  defined,  which  the
application refused,  and that on the first day of September last
he again  applied  to  the  board,  asking  to  reconsider  their
rejection of  the prayer  of his petition which was laid upon the
table by  the respondents; and that they still continue to refuse
to define  for him  the line bounding their jurisdiction upon the
land mentioned in his petition.

     The statute  required that  the board of wardens of the port
of Philadelphia,  on the application of the owner of land bounded
by the  Delaware and  Schuylkill rivers  within the limits of the
port, shall  cause to  be defined upon the ground, at the expense
of the  applicant, the  line of  low-water  mark  bounding  their
jurisdiction.

     It was held that the act to be done was simple and specific;
and so  far from  leaving it to the discretion or judgment of the
wardens, the  language of  the law  was imperative,  and that the
petitioner had  a clear  right to  build his  wharf to  low-water
mark, and that he had a right to compel the wardens to go forward
and define the line in order to enable him to do so with safety.

     It  was  further  held,  that  the  answer  setting  up  the
impossibility of  fixing the line of low-water mark as prayed for
by the  petitioner was insufficient, as it was not pretended that
an effort had been made to comply with the directions of the act,
nor the  nature or  character of the disability set out, that the
court might judge whether it was a mere disinclination to perform
the duty  required, or  an actual  impediment, which  rendered it
impossible for the respondents to do that which the law says they
shall do.

     And where the authorities of a borough are bound to keep its
streets in  repair, they  may be  compelled to do so by mandamus.
(Uniontown v. Commonwealth, 34 Penn. S.R. 293.)

     So in  Hammon v.  Covington, 3  Met. (Ky.)  494, it was held
that where  the city  council is required by law to keep a street
in repair,  if they suffer it to so far fall into disrepair as to
prevent passage  thereon in carriages, and to render it dangerous
for people  having houses  thereon to  pass to  and fro,  and  to
endanger said  houses, that  although the  abuttors thereon  have
cause of action by reason of the special injury done to them, yet
they may  also have  mandamus to  issue to  the council to compel
them to  make the  proper repairs. And so where an act was passed
by the  legislature, entitled,  "An act  to widen  Fulton street,
between Red Hook lane and Court street, in the city of Brooklyn,"
and providing  that "Fulton  street, between  Red Hook  lane  and
Court street,  is hereby  widened as follows;" and also providing
that the  common council  of Brooklyn  might take  certain  steps
toward carrying out the act, and bestowed certain powers upon the
courts for  the same  purpose, it  was held  that `shall'  may be
substituted for  `may' in  the interpretation  of a statute, when
the good  sense of  the entire  enactment would require the same;
and that  the  rule  applies  when  the  statute  established  an
improvement, and  devolves upon  any  person  or  persons,  or  a
corporation, the  performance of such acts as may be requisite to
insure its  completion; that applying this rule to this case, the
statute was  peremptory upon  the common  council to  pursue  the
designed improvement  to its  consummation, and  that a  mandamus
would lie  at the  suit of a citizen and tax-payer of Brooklyn to
compel them  to do  so. (People v. Common Council of Brooklyn, 22
Barb. 404.)

     Mandamus is  also the  proper remedy to obtain possession of
the seal,  books, papers,  muniments, &c,  the  property  of  the
corporation, held  in possession  by an ex-mayor; and a pretended
intrusion into  or retention  of the  office of  mayor  will  not
justify the  withholding of such property so as to compel them to
do so. (The People v. Kilduff, 15 Ill., 492.)

     And where  the only  pre-requisite  required  to  entitle  a
person to  receive from  the mayor  a license  to engage  in  the
business of broking emigrant passengers, was the giving of a bond
of a  certain  description,  the  mayor  can  only  exercise  his
judgment as  to the  sufficiency of the bond. If that be found by
him to be sufficient, he is bound to issue the license, and if he
refuse, he may be compelled by mandamus. (The People v. Perry, 13
Barb. 206.)
It has  also been  held that  mandamus is  the appropriate remedy
when an  officer of  a municipal corporation undertakes to set at
naught the  corporate will, by refusing to execute or deliver the
bonds of  the corporation  in  payment  of  the  price  of  lands
purchased by  the corporation;  and that  the writ  may  also  be
applied for  by the  vendor, who  is beneficially  interested  in
enforcing the contract, after a resolution has been passed by the
common council  directing the  officer to  carry out and complete
the purchase. Therefore, where the relator offered to sell to the
city of  New York  certain property, either for cash or corporate
bonds, and  the corporation,  by resolution,  accepted the offer,
the payment  of the  price to  be made in corporate bonds, it was
held that  this constituted  an agreement where by payment was to
be made  in bonds,  and  that  mandamus  would  lie  against  the
comptroller to  compel him  to execute  them. Barnard,  J., said:
"The remedy  by mandmaus  is both  appropriate and proper in this
case. An  officer of  the corporation undertakes to set at naught
the corporate  will. Surely, the corporation must have some legal
remedy to  compel its  subordinate to obey its lawful behests. It
is impossible  to conceive  of any  legal remedy adequate for the
purpose other  than a  mandamus. Assuming  that  the  corporation
could have  sued out the writ, is there any objection to allowing
to the  party who  is beneficially  interested in  enforcing  the
corporate will expressed in his favor, the use of the same remedy
which the  corporation would  be entitled  to use? There does not
appear  to   be  any  well  founded  objection  so  long  as  the
corporation assents  to the  proceedings being  taken against the
officer." (The People v. Brennan, 39 Barb. 536.)

     It has  also been held that if there are words of permission
in the  charter of  a public  corporation, to  do an act which is
clearly for  the public  benefit, they  are obligatory  upon  the
officers of  the corporation. Therefore, where a charter declared
that the  mayor and  jurats of an ancient town might hold a court
of record  for the  holding of  pleas, but  which had  been  long
disused, the  court of  King's Bench granted a mandamus to compel
such court  to be  held, at  the instance of an inhabitant of the
town, though he was not a corporator.

     So where  a charter  granted to the steward and suitors of a
manor power  and authority to hold a court for the purpose (among
other objects) of hearing and determining pleas of debt, &c., but
the court  had been  disused for that purpose during fifty years,
it was  held that  a mandamus would lie to compel the court to be
held again  for such  purpose, notwithstanding the non-user. (Rex
v. Hastings, 1 D.& R., 148; 5 B.& A., 692; 2 D. & R. 176.)


                          CHAPTER XIX:

                MANDAMUS TO OTHER OFFICERS


     Mandamus will  not lie  to compel public officers to perfect
an incomplete  contract which  will be  binding upon  the  State,
especially where the subject or object of the contract has passed
by sale from the State into the hands of some other person.

     Therefore, where the relator set forth that in the year 1853
he made  application to  the  then  school  fund  commisioner  to
purchase certain  lands then  for sale  in his  office,  and  was
informed by  said commissioner  that the  lands were already pre-
empted by  one R.,  but that  the relator  might enter  the lands
subject to  the pre-emptor's  rights, which was done, the relator
paying part  of the  price and  taking the commissioner's receipt
therefor; that  said R.  failed  to  make  good  his  re-emption,
andthat afterwards  the relator  applied to  the commissioner for
the requisite  papers in  respect  to  the  title  to  the  land,
tendering performance  of his  duties in  the premises; taht said
commissioner refused  to issue  the requisite papers, and said he
should offer  the lands for sale at auction; that relator refused
to receive  back his  money, and  that  the  respondent  was  the
present school  commissioner, it  was held that the relator could
not thereby  obtain the  aid of  the court to perfect an inchoate
contract which  would be binding upon the State, especially as it
appeared that  other persons had purchased the land, in one case,
of the then present commissioner without notice by him or them of
the relator's claim. (Chance v. Temple, 1 Clarke (Iowa), 179.)

     In fact,  it seems  to be  a well established principle that
although a  mandamus may  sometimes  lie  against  a  ministerial
officer to do some ministerial act connected with the liabilities
of the  government, yet  it must be when the government itself is
liable, and the officer himself has improperly refused to act. It
must be  in a  case of  clear and not doubtful right. (Reeside v.
Walker, 11 Howard's Rep., 272.)

     Upon this  principle that  it has  been held that a mandamus
will not  be issued  on the  application of  an individual to any
officer of  the  government,  commanding  him  to  approve  of  a
contract, entered  into with  that individual by public officers,
when such  approval is  necessary in  order to  make the contract
binding upon  the State.  If the  contract is  complete, mandamus
will lie  to compel  the proper  officer to  execute it  in  good
faith. (Ante, 132-3.)

     In the case of The People v. The Canal Board, 13 Barb. Rep.,
432, was  a motion  for a  peremptory mandamus, to be directed to
the Canal Board, commanding them to act and approve or disapprove
of the  contract awarded  to and made with the relator, as stated
in the  affidavit on which the motion was founded; and to approve
or disapprove  of the  terms upon  which, and  in the  manner  in
which, the  board of  Canal  Commissioners,  State  Engineer  and
Surveyor and  division engineer  had  contracted  with  the  said
relator to  do the  work in  the said  contracts  specified.  The
relator, among  other things,  alleged that  in pursuance  of  an
advertisement for  proposals for  work on  certain canals therein
described, and  his proposal  in the manner and form described in
his motion,  the board  of Canal Commissioners, together with the
State Engineer  and Surveyor,  and the  division engineer  having
charge of that portion of the canal where the work was to be let,
awarded to  the relator  a  contract  for  certain  work  therein
described; that  he was advised by his counsel and believed, that
in order  to render  the contracts  so made  with  him  valid  or
binding, it  was necessary that the Canal Board should approve of
the terms  upon which,  and the  manner in  which, the said Canal
Commissioners, State  Engineer and Surveyor and division engineer
had contracted  with him  to do  the work  mentioned; that he had
presented to  said board  his application,  praying in  substance
that said  board would  examine the  prices established  in  said
contracts, and  approve or  disapprove of the same, but that said
board had hitherto wholly neglected so to do.

     Cady, J., in delivering the opinion of the court, said: "The
State has  not, as  yet, made  itself liable  to the  relator  to
execute or  deliver by its officers to him any contract whatever;
and I  have been  unable to  find  any  case  in  which,  on  the
application of  an individual,  a mandamus has been issued to any
officer of the government, commanding him to make a contract with
that individual  binding on  the  State.  If  no  action  can  be
commenced  and   maintained  against  the  State  to  compel  the
performance of  a contract without a previous statute authorizing
such action,  it would  seem to  follow that  no  action  can  be
maintained against  an officer of the State to compel him to make
or complete a contract on behalf of the State."

     And where  the constitution  of the State declared that "all
contracts for  work or  materials on any canal shall be made with
the person  who shall  offer to  do or provide same at the lowest
price, with  adequate security  for their  performance;"  and  by
legislative enactment  it was  also provided that the contracting
board "shall  have power,  and it  shall be  their duty to let by
contract, under  such regulations  as said board shall prescribe,
to the  lowest bidder or bidders, who will give adequate security
for  the  performance  of  the  contract,"  the  repairs  of  any
completed  section   of  the   canal.  And  under  this  law  the
contracting board  advertised for  proposals to  keep  a  certain
canal in  repair four  years and a half. The notice indicated the
form and character of the security which the board would consider
adequate  -   that  is,   stated  that  every  proposal  must  be
accompanied by  a certificate  of deposit  in some  bank in  good
credit; that  $4,000 in  cash had  been deposited  therein to the
credit of  the Auditor,  which would  be retained as security for
the performance  of the  contract. The  relator made  a  proposal
which was  somewhat lower in price than that of any other person,
but it  was not  accepted. A contract was made with one Case, who
was the  next highest  bidder. The  relator  delivered  with  his
proposal a  certificate that he had deposited in the Salt Springs
Bank of  Syracuse $4000  payable to the order of the Auditor, but
the certificate  did not  state, in  so many  words, that  he had
deposited such  amount `in  cash.' Case,  whose bid was accepted,
delivered a  similar certificate  containing, however,  the words
`in cash.'  It was  inferred by the court that this difference in
the form  or  phraseology  of  the  certificate  was  the  reason
assigned for  rejecting the relator's bid, and accepting a higher
one.

     Although the  court of  Appeals was unable to justify such a
decision of  the board,  yet it  held that the board could not be
compelled by  mandamus to  reverse their  action, or  to  make  a
contract with  the relator,  after they  had already made another
contract with  another person.  (The People  v.  The  Contracting
Board, 27 N.Y.R. 378.)

     And where  the authority of a corporation to sell and convey
land rests  wholly upon  statutory law,  its provisions  must  be
strictly compled  with; and if in any part of the proceedings the
provisions of  the statute  have not been strictly complied with,
the proceedings  are irregular, and the purchaser takes no title;
and if  any part of the proceedings have been irregular, mandamus
will not lie to the officers of the corporation to compel them to
complete the  proceedings. Therefore,  where a statute authorized
the corporation of a city to sell lands for taxes, and to execute
a lease  of the  same to the purchaser, if the owner neglected to
redeem within  two years  from the  time of sale; and it was also
made the  duty of  the city,  six months before the expiration of
the two  years after  such sale,  to cause an advertisement to be
published at  least once in each week for four weeks successively
in two  newspapers, that unless the lands sold were redeemed by a
certain day,  they would  be conveyed  to the  purchaser; and the
corporation failed  to publish  such notice  after the sale as so
required; it  was held that the failure to give such notiece made
the proceedings  irregular, and  mandamus would  not lie  to  the
officers of  the corporation to compel them to execute the lease,
though the  two years had expired. (The People v. The Mayor, &c.,
of New York, 10 Wend. 395.) Mandamus is the proper remedy for the
neglect or  refusal of a school district to raise and pay over to
the district  from which  it has  been divided  the  proportional
amount for  retaining the school house. (School District no. 2 v.
School District No. 1, Wis. 333.)

     So, mandamus  lies to compel a township clerk to correct, by
an amendment  of his  records, and  errors, whether  arising from
design, mistake,  or accident,  on the  application of any person
interested. (20  Conn. R.  290.) A mandamus, however, was refused
to compel  a justice  to amend  his record,  where the amount was
insignificant and  it was  of no benefit to the petitioner. (Hall
v. Crossman, 1 Williams (Vt.) Rep. 487.)

     But it  will lie to compel him to deliver the records to his
successor in  office, if  he refuses to do so, on the application
of his  successor and his showing himself to be clerk. (Taylor v.
Henry, 2 Pick. 397; Commonwealth v. Atheom, 3 Mass. 287.)

     So, where  it is the duty of a town clerk to record deeds or
other papers,  or to file papers, and he refuses to do so, he may
be compelled  to perform  such duty  by mandamus. (Strong's Case,
Kerby's Rep., 345; 7 John's Rep. 549.)

     Mandamus  is  also  an  appropriate  remedy  to  compel  the
collectors of  the public  revenue to  proceed and  perform their
duties. For,  unless there was some summary process to compel the
performance  of   these  duties,   the  treasury   would   become
embarrassed, and  great public mischief might ensue. And where by
law it  is made  the duty of the treasurer, in case the collector
neglects to  collect a  tax, to  issue his  warrant  of  distress
against such collector for the amount of the tax assessed, if the
treasurer refuses  or neglects to so issue his warrant, he may be
compelled to do so by mandamus.

     Therefore where  the law  provided that if the tax collector
failed to  do his  duty, the  treasurer should  issue  a  warrant
directed  to   the  sheriff,   authorizing  a   distress  of  the
collector's goods  and chattels,  and  the  imprisonment  of  his
person, and the petitioners for a mandamus represented, that at a
meeting of  the inhabitants  of a  certain school district in the
town of  Dudley, on  a certain  day named,  a vote  was passed to
purchase a  convenient spot  of land  for a  school house, and to
build a  new school  house thereon;  that  the  petitioners  were
chosen a  committee to make the purchase, and to build the house;
that it  was also  voted to  raise a  certain sum named for those
purposes; that  the clerk  of the district, in due time certified
this last  vote to  the assessors of the town, and requested them
to assess the sum mentioned upon the inhabitants of the district;
that the  assessors did  assess said sum in pursuance of the vote
and  the  clerk's  certificate  thereof,  and  committed  to  one
Ingraham, a  constable and  collector of  Dudley, the list of the
assessment, with  a warrant for collecting and paying in the same
to the  treasurer of the town, or his successor, on or before the
first of  March, 1826,  and certified  their doings  to Lee,  the
respondent, then  and ever since, the treasurer of the town; that
the peitioners  purchased a  convenient spot of land on a certain
day, and  thereafter, in  pursuance of  the vote of the district,
contracted for  the building  of  a  school  house  thereon,  and
promised in  writing to  pay the  builders a certain sum of money
when it  should be  finished; that said Ingraham had neglected to
comply with  the warrant,  and the  town treasurer had refused to
pay to  the petitioners the before mentioned sum because the same
was not  yet collected  and paid  into  the  treasury;  that  the
petitioners  thereupon  requested  the  treasurer  to  issue  his
warrant of  distress  against  the  collector,  pursuant  to  the
statute, but  that he had refused so to do; that the school house
was finished,  and the  expenses incurred were still due from the
petitioners, as the building committee; the petitioners therefore
prayed that  a mandamus  might issue  to the treasurer, requiring
him to  issue his  warrant of  distress  against  said  Ingraham,
pursuant to the statute.

     It was  held that  the collector  ought to have proceeded in
collecting the tax; and that not having done so, he had subjected
himself to  the warrant  from the treasurer, and granted the writ
accordingly.

     It was  also held,  that a  return showing  that the tax was
illegally raised  and assessed, by reason of the insufficiency of
the warning of the inhabitants of the district, of the meeting at
which the  tax was  voted; that the tax was not assessed upon any
valuation taken  with a  view to that tax; and that the person to
whom the  warrant calling the meeting was directed, had certified
in general terms that he had duly warned the inhabitants, without
stating the  time or  manner of  the warning,  was not sufficient
return. It was held by the court, that the treasurer was merely a
ministerial officer;  that he  had no  authority to  pause in the
execution of  his duty, on the 20suggestion of errors or mistakes
in the proceedings. That if the facts upon which he is to act are
properly certified  to him,  he has no discretion, but is obliged
to issue  his warrant.  That whether the tax be legal or illegal,
whether duly assessed or not, are not subjects for him to inquire
about. That  if there  be a  tax, an assessment, a warrant to the
collectors, all  certified to  him by assessors duly qualified to
act, his  duty is  clear, and he is peremptorily commanded by the
law to discharge it.

     It was, however, maintained, that as the issuing of the writ
depended in  a measure  upon the  discretion of the court, it was
proper for  the court to look into the facts stated in the return
of the  officer against  whom the mandamus is prayed, in order to
determine whether  the exercise of his duty, in issuing a warrant
of distress  against the collector mentioned in the return, ought
or ought not to be compelled.

     And that  if it  should manifestly  appear that  a  tax  was
illegally granted  or assessed,  so that the officers required to
collect it  would have  no authority,  or the persons taxed would
have a  right to  restitution by  action, without doubt the court
would withhold  the exercise  of its power, rather than throw the
parties into  an expensive field of litigation. (Walfon v. Lee, 5
Pick. 323.)

     And where  the selectmen of the town, having authority to so
do, surveyed  a highway,  and laid  a survey  thereof in  writing
before the inhabitants of the town, at a lawful town meeting, and
the survey  was accepted  by the  town,  and  recorded;  but  the
selectment neglected  and refused  to make  satisfaction for  the
damage done  to those  over whose  lands the  highway passed,  as
required  by   law;  and  also  neglected  and  refused  to  open
the 20same, although  the time for that purpose prescribed by law
had long since passed, it was held that mandamus would lie to the
selectmen, requiring them to proceed and open the highway. (Treat
et al. v. The Inhabitants of the &c., 8 Conn. 243.)

     A mandamus to compel the commissioners of highways to open a
road should  not, however,  be resorted  to  where  its  necesary
effect would  be to  subject them  to an  action of  trespass. If
therefore, the  facts shown on the application are of a character
to  establish   a  want  of  jurisdiction,  so  as  to  make  the
proceedings entirely  void, they  furnish a sufficient ground for
not awarding  the peremptory  mandamus,  unless,  for  some  good
reason, the parties are estopped from inquiring into these facts.
(People v.  Commissioners  of  Seward,  27  Bard.  94;  Ex  parte
Clapper, 3 Hill, 458.)

     So where  it is  made the  duty of the township treasurer to
pay orders drawn on him by the township board of education out of
moneys in his hands as such treasurer, if he refuses to do so, he
may be  compelled by  mandamus. Therefore,  where  the  board  of
education -  acting upon a real or pretended supposition that the
local directors  of the sub-district were neglecting to discharge
their duties  - assumed  the exercise  of those duties, under the
provisions of  the statute  in such  cases provided, and employed
the relator  to teach  a school in the sub-district, which he did
for three  months, without  being notified by the local directors
to desist,  and at  the expiration  of that  time  the  board  of
education gave  him an  order on  the defendant, who was township
treasurer, for  his wages, purusant to the statute, and the local
directors notified  the defendant  not to  pay it, and threatened
him with  a suit  if he  did, whereupon he refused to pay it, and
the ground  of the  notification was that the local directors had
not neglected  their duties,  and that,  therefore, the  board of
education had  unlawfully usurped  their authority,  it was  held
that although  it was  by no  means certain  that  the  board  of
education was  justified in  superseding the  directors, and that
the relator,  to be  entitled to  payment for  services rendered,
must show  that his  retainer was by competent authority; yet, as
in that  case the  retainer was  by a board exercising, de facto,
the powers  of local  directors, without any objection made known
to the relator against their so doing, he was entitled to payment
of his  order, and  ought not  to be  turned around  to  sue  the
individuals  composing  the  board.  A  peremptory  mandamus  was
therefore awarded,  commanding the  defendant as treasurer to pay
the order. (Case v. Wresler, 4 O.S. Rep., 561.)

     So where  the township  board  of  education  of  a  certain
township determined  to build  a new  school house  in one of the
sub-districts of  the township,  selected and  purchased  a  site
therefor and  instructed the  local directors of the sub-district
to build  the house on the site so selected, and also to sell the
old school  house and  site, and  the local directors of the sub-
district proceeded  to build the new school house, but refused to
erect it  on the  site where  the old school house stood, and the
township  board   proceeded  contemporaneously   with  the  local
directors, and  built a  new school house on the site selected by
themselves, and  in the  autumn employed  a teacher  to teach the
common school  of the  sub-district in  the new  house  they  had
built, and refused to have any school kept in the new house built
by the  local directors, and in the spring the board of education
certified to  their clerk  that there  was due to the relator for
teaching the  school as  aforesaid the  sum of $88, and the clerk
thereupon gave to him an order on the township treasurer for said
sum, and  he presented  the same to the treasurer, who refused to
pay it,  it was  held that  mandamus  would  lie  to  compel  the
treasurer to  pay the  order, although  the local  directors also
employed a teacher to teach the common school of the sub-district
in the  new school  house built  by them  and  had  given  him  a
certificate of  the amount  due him  for wages  as such  teacher,
which had  been presented  to the clerk, who gave such teacher an
order on  the treasurer,  and the  treasurer had  paid it. It was
said by  the court  that where  the local  directors persisted in
building a school house and keeping up a school on the 20old site
and in  refusing to  build upon  the new  site after the township
board had notified them of its resolution to sell the former, and
after it had required and directed them to build upon the latter,
they were  guilty of  a degree,  not  only  of  neglect,  but  of
insubordination, which,  under the  provisions of  the statute in
such cases  provided, justified  the board  in assuming  all  the
powers and  duties which  would otherwise  have developed  on the
local directors. (The State of Ohio v. Lynch, 8 O.S. Rep., 347.)

     But where  the return  to the  alternative writ  showed that
before issuing  and service  of the writ, the defendant's term of
office as township treasurer expired, and a successor having been
elected and qualified, he had paid over to that successor all the
public funds  in his  hands, and  such payment  was made  in good
faith, it  was held  that it  was a good defense to the writ, and
that the  relator must  be left  to assert his rights against the
defendant's successor  in office.  (The State of Ohio v. Lynch, 8
O.S. Rep., 347.)

     The township  treasurer is,  no  doubt,  in  certain  cases,
justified in  looking behind  the order  drawn  on  him,  and  if
illegal, refuse its payment.

     Therefore,  where   an  alternative   mandamus  was  issued,
commanding the  defendant, as  township treasurer,  to pay to the
relator the sum of twelve dollars, for services as a teacher of a
union school  district, composed  of parts  of the  townships  of
Tallmadge and Stow, in Summit county, and Franklin and Brimfield,
in Portage  county, to  which the defendant made return: "That no
such union  school district  as that  mentioned in  said writ, as
being composed  of parts of the townships of Tallmadge, and Stow,
in Summit county, and parts of Franklin and Brimfield, in Portage
county, ever  legally existed;  but the  same as  to that portion
thereof which  lies in  the township  of Tallmadge aforesaid, was
embraced in said union school district, and against their express
dissent;" it  was  held,  that  as  the  statute  conferring  the
authority to  establish union  school districts upon the trustees
of the several townships, required of a majority of each township
board of  trustees to  concur, with a like  majority of each, and
of all  the several  township boards  of trustees;  and  that  no
organized township,  or any  part of it could therefore be forced
into a  school district  against the consent of its trustees; the
treasurer was  justified in  refusing to  pay the order, the writ
was dismissed. (The State of Ohio v. Wright, 17 O. Rep., 32.)

     Mandamus will also lie to compel township trustees to make a
proper distribution  of funds in their hands, to be divided among
certain  religious   societies,  if   applied  for   before   the
distribution is made. (11 O. Rep., 24.) 

     Therefore, where the proceeds of certain township lands were
appropriated to each religious society of the township, according
to the  number of its members, for that year, and it was made the
duty of  the township trustees to make the distribution, and they
refused to  distribute any  dividend of the proceeds to a certain
society, on the ground that it was not a religious society within
the meaning  of the actk, it was held that if such society was in
fact within  the intent  ofthe statute,  the  trustees  might  be
compelled by  mandamus to  make a  division to  such society,  if
applied for  before the funds had been exhausted. But a return by
the trustees,  setting forth  that their  predecessors in office,
for the  years, the  proceeds for  which the  relators claimed  a
dividend, comsidering  that the  society were not entitled to any
portion of  the rents, had actually divided and paid out to other
societies all the money received for those years, so that nothing
of the  proceeds of  those years  remained in  the treasury, upon
which orders  could be  drawn, it  was held  that the  return was
sufficient, and  peremptory mandamus  was refused.  (The State of
Ohio v. Trustees, 2 O.R., 108.)

     So mandamus  will lie to compel a town council to leby a tax
to pay  an indebtedness  of the  town. And  where an incorporated
town had  been indebted,  and afterwards  the  act  creating  the
corporation was  repealed, but  the repealing  act contained  the
following provision:  "Provided, that  the officers  of said town
shall have  power, by  their corporate name, to sue and be liable
to be  sued, to levy and collect all taxes necessary to discharge
the present  liabilities of said town; and provided further, that
all rights  acquired, and  liabilities incurred by virtue of said
act (incorporating  said town) shall remain valid in all respects
as if this act had not passed." It was held by the court that the
repeal of  the charter  did not  discharge the  officers  of  the
corporation from the duties of collecting the debts due toe town,
and paying  off liabilities it had incurred. That it was the duty
of those  in office when the charter was repealed, to provide for
the payment  of the  debts of  the town,  and that no resignation
would absolve  them from  the discharge  of the  duties  imposed.
(Gorgas v. Blackburn et al., 14 O.R., 252.)

     Mandamus also lies to the city council to compel it to issue
the necessary  orders on  the treasury, for the drawing of school
funds, when  the board of trustees have properly certified to the
correctness of accounts, and such city council refuse to do their
duty in that respect. (The State v. The City of Cincinatti et al,
19 O.R., 178.)

     And where  the law  gives to  the sheriff  the right  to the
possession of  the county  jail, and the custody of the prisoners
therein, and  the under-keeper,  who  has  been  removed  by  the
sheriff, refuses  to give  up the  control  and  custody  of  the
prisoners  therein   confined,  and   to  vacate   and  surrender
possession of the jail, mandamus will lie to compel him to do so.
(Burr .v Norton, 25 Conn. 103.)

     So, mandamus  lies against  a township  school committee  to
compel them to admit to the public schools one who is entitled to
the benefits  and privileges  of such schools, and who is refused
admission thereto.

     And where there wa in a will donating a sum of money for the
support of  a school  for the  inhabitants of  a certain  town  a
clause excepting  from the benefits of the school certain persons
therein named,  and their  descendants for  a term of one hundred
years, it  was held by the court that the clause was repugnant to
the nature  of the  grant, and contrary to law and public policy,
and was  therefore "inoperative  and void:"  and a  mandamus  was
allowed to  compel the  school committee to admit to the school a
person thus  excluded by  the will.  (Nourse v. Merriam et al., 8
Cushing's Rep. 11.)

     And where  the trustees  of a school district improperly and
illegally admit  colored  children  or  immoral  persons  to  the
school, mandamus,  it seems,  is the appropriate remedy to compel
the trustees  to exclude  them. But  in such  cases it  should be
alleged and  shown that  the trustees knew that such persons were
attending the  school, and  that there  were objections  to their
attendance. (Lewis v. Henly, 2 INd., 332.)

     But where school directors are directed and empowered by law
"to establish  a sufficient  number of  common  schools  for  the
education of  every individual  above the  age of  five and under
twenty-one years in their respective districts, who may apply for
admission and  instruction,  either  in  person,  or  by  parent,
guardian, or  next friend,"  and the  directors meet and consider
and pass upon the propriety of establishing a school at a certain
point in  the town,  and come to the conclusion  that such school
would be  inexpedient and  injurious, they  act in a deliberative
capacity, and  therefore mandamus  will not lie to compel them to
reform their decision. And this is upon the principle, that where
a person  acts in  a judicial or deliberative capacity, he may be
ordered by  mandamus to  proceed to  do his  duty; but  the court
cannot direct  him what  manner to  decide. ( 4 American Law Reg.
163.)

     And where  by law  it  is  enacted,  that  when  no  special
contract shall  be subsisting  between  the  borough  and  county
relative to  the prisoners  sent from  the burough  to the county
prison, the borough shall pay to the county a proportionate share
of the  expenses of the conveyance, transport, and maintenance of
such  persons,   including  therein   repairs,  alterations,  and
addition to  the prison, it was held that where it was shown that
no special contract existed, and prisoners had been sent from the
borough to  the county  jail, mandamus  would lie  commanding the
council of the borough to pay to the person duly appointed by the
proper authorities  of the  county to  receive it  the  borough's
share of such expenses, &c.; and if no sufficient money should be
in their hands for payment thereof, to proceed to cause a rate to
be made  and levied for the purpose of making payment. (Regina v.
The Mayor, &c., 20 Eng. Law and Eq. R. 59.)


                           CHAPTER XX:

               MANDAMUS TO PRIVATE CORPORATIONS


     A corporation  has been  defined to be an intellectual body,
created by  law, composed  of individuals  united under  a common
name, the  members of  which succeed each other, so that the body
continues the same, notwithstanding the change of the individuals
who compose it, and which, for certain purposes, is considered as
a natural person. (Angell & Ames on Corporations, 1.)

     There are  two kinds  or classes  of  corporations.  One  is
denominated public,  and is  founded  for  public  purposes,  and
generally has  for its  object the  government of  a  portion  of
political  powers.   Towns,  cities  and  boroughs  are  familiar
examples of this kind of corporation.

     A private  corporation is one created for the advancement of
some private  end, such,  for instance,  as a  bank, turnpike  or
railroad corporation.  But as their objects, to a greater or less
extent,  affect  the  whole  community,  and  they  derive  their
existence from  the consent  of the  public, they  in  a  measure
partake of  the public  nature; so  much  so  that  they  may  be
compelled by  mandamus to  perform their duties imposed upon them
by law, although it is a fundamental principle that mandamus only
lies in  a matter  of public  concern. Accordingly,  in  case  of
public corporations,  it has been decided that a mandamus lies to
compel them to proceed to the election of a new mayor at any time
after the charter day has passed without such election, where the
former mayor,  having power  to do  so, holds over and refuses to
convoke an assembly for that purpose, unless, indeed, the charter
restrains the  right of  electing to  a particular  time. (4 Burr
Rep., 2011.)  The same principle would apply to other officers of
a corporation. (Rex v. Bedford, 1 East's Reps., 80.)

     In case  of a  public corporation  it has  also been decided
that if a corporation officer, duly elected, refuse or neglect to
take upon  himself the  execution of  his office, a mandamus will
issue to  compel him  to do  so, but  he may  show any sufficient
excuse  for   not  accepting   the  office.  (Angell  &  Ames  on
Corporations, 431; 1 East. R., 80.)

     The law  upon the  right to  resort to  mandamus to compel a
corporation to  admit or  restor a  person to  an offcie  in such
corporation is  of ancient  date, for in Bacon's time it was laid
down as  a general  rule, "that  where a  man is  refused  to  be
admitted, or  wrongfully turned  out of  any office  or franchise
that concern  the public or the administration of justice, he may
be admitted  or restored  by mandamus." And on this foundation it
has been  adjudged and  admitted in a variety of cases, that if a
mayor, alderman,  burgess, common  councilman, freeman,  or other
person, members  of a corporation, having a franchise or freehold
therein, be  refused to  be admitted, or being admitted be turned
out or  disfranchised without  just cause, he may have his remedy
by writ of mandamus. (4 Bacon's Abridgement, 500.)

     But in  order to warrant the issuing of the writ or admit or
to restore  one to office, it must appear that the office claimed
is a public office. And it has often been a matter of controversy
what shall  be said  to be a public office. It has, however, long
since been  decided that a town clerk, recorder, and clerk of the
peace, a  constable, and  even a  sexton, a  parish clerk,  and a
clerk of  the city  works, were officers of so public a character
as to come within the rule.

     The writ  has often been made use of, in modern practice, to
admit or  restor to  an office; and the rule, as above laid down,
seems to  have been  unchanged.  (The  People  v.  The  Board  of
Metropolitan Police, 26 N.Y. Rep.316; Harwood v. Marshall, 9 Ind.
Rep. 83; Banton v. Wilson, 4 Texas Rep. 400.)

     But when  an office  is already  filled by  a person who has
been admitted  and sworn, and is in by color of right, a mandamus
is never  issued to  admit another  person. The proper remedy for
the applicant is by a quo warranto. (People v. Scrugham, 20 Barb.
(N.Y.) 302;  Bonner v. The State, 7 Ga. REp. 473; The King v. The
Mayor of Colchester, 2 Dunn & East's Reps. 259.)

     Mandamus is  also the appropriate remedy to resort to when a
person has  been refused  admission to, or has been removed from,
an office in a private corporation.

     Therefore, where the complaint of the relator showed that he
was one  of the  trustees of an acedemic school duly incorporated
by law,  and that  he had  been removed  and expelled  from  said
office by his associate trustees, and it appeared from the return
that they possessed no power to remove one of their number; or if
so, that  the causes  of removal  were entirely  insufficient,  a
peremptory mandamus  was allowed, directed to the other trustees,
commanding them  to restore  the relator  to his office as one of
the board  of trustees.  It was  also held  that the  place of  a
trustee in  an eleemosynary corporation, though no emoluments are
attached to it, is yet a franchise of such a nature that a person
improperly dispossessed  of it  is entitled  to redress  by  such
writ.  (FUller   v.  The  Trustees  of  the  Academic  School  in
Plainfield, 6 Conn. 532.)

     It has also been held, that a writ of mandamus may be issued
against a  religous  society,  commanding  them  to  restore  the
relator  to   his  standing  as  a  trustee  and  member  of  the
corporation, when  he has  been illegally and improperly removed.
(Green v.  The African  Methodist Episcopal  Society, 1  Serg.  &
Rawle's Rep.  254; Douglas  Rep. 158;  2 Binn,  441, 448; 5 Binn,
486; 2  Serg. &  Rawle's Rep.  141; 10  Barr. Rep.  357; 15 Penn.
251.)

     It seems,  also, that  a suspension from office warrants the
granting of  a writ  as well  as a removal, for a suspension is a
temporary motion;  and otherwise,  it is  said, under pretense of
repeated suspensions,  an officer might be entirely excluded from
the advantage  of his  situation. (Angell & Ames on Corporations,
437.)

     But where it appears from the showing of an officer, that he
has been  justly, though irregularly removed, or in the case of a
financial  officer  for  life  who  is  suspended  until  he  has
submitted his  account to  the proper  officer, and paid over the
balance due,  that he  has refused  to do  so, and been guilty of
contumacy and improper conduct towards those whose officer he is,
a mandamus to restore, it has been decided, will not be granted.

     Neither will the writ be granted to restore one who has been
ousted in  quo warranto,  or who  has resigned  his office; since
judgment in  quo warranto  is conclusive  against the  defendant,
whether  on  the  writ,  or  on  the  information;  and  after  a
resignation has  been accepted,  the corporator cannot resume his
office. It has however, been said, that it is no objection to the
granting of  a mandamus to restore, that another has been elected
to the  office, since the amotion of the applicant. In such cases
the court  will grant  leave to file an information in the nature
of a  quo warranto,  against the  person so  elected, at the same
time that  they award  the mandamus.  It has also been held, that
although mandmaus  will not be granted to restore a deputy on the
application of  the deputy  himself, yet  it will  be granted for
that purpose  on the  application of  the principal.  (Angell and
Ames on Corporations, 438, 439, 6 East's Rep., 360.)

     In the  case of  the State  v. Common Council, 9 Wis. Reps.,
254, it  is claimed  to be a well settled principle that mandamus
is the  proper remedy  to restore  to office  a perons  illegally
removed; and  that while  the court cannot control the discretion
of a  board having  power, to  remove at  discretion, yet  if the
power to  remove be only for "due cause" the cause of removal may
be inquired  into  by  the  court,  as  that  is  a  question  of
jurisdiction. That  while the  board may  have power to determine
conclusively the  truth of  the  charges  preferred  against  the
officer; yet  it has not the power to determine conclusively that
these charges if true, amount to "due cause."

     The writ  of mandamus  also lies  to compel a corporation or
its officers,  to do many other acts which, by general law, or by
virtue of official station, they are bound to do, which the party
presecuting the  writ has  a right  to have  done, and  for which
there is  no other adequate, specific, legal remedy. It lies also
to the  mayor of  a city  corporation, to  compel him  to put the
corporate seal to the certificate of an officer's election, where
by the  constitution of  the corporation,  the mayor  is bound to
certify the  election to  the king  for his  approbation. (Rex v.
York, 4 T.R. 699.)

     So a  corporator may have a mandamus to compel the custos of
corporate documents,  to allow  him an  inspection, and copies of
them, at  proper times  and upon  proper  occasions;  he  showing
clearly a  right on  his part, to such inspection and copies, and
refusal on the part of the custos to allow it.

     It was  therefore held  that a  board of directors of a bank
have no  right to  pass a resolution excluding one of its members
from an  inspection of its books, although they believe him to be
hostile to the interest of the institution; and accordingly where
the cashier of a bank had refused to permit a director to inspect
the discount  book, that a mandamus lay commanding the cashier to
submit the  book to  his inspection,  although the conduct of the
cashier had  been approved  by a  resolution of the board. It was
also held  that the  mandamus might  properly be  directed to the
cashier, and  need not  be directed to the board. In the decision
of the case of The People v. Throop, 12 Wend. 183, the court say:
"It must  be conceded,  that if  the relator  has a  right to the
inspection of  the books  of the bank, a mandamus is appropriate,
and the  only remedy  at law.  If there is a right on the part of
the relator  to examine  the books,  either with reference to his
own safety,  or with  a view to the proper execution of the trust
reposed in  him by the stockholders, then this is the remedy, and
the only remedy in a court of law."

     "The question then seems to be this: Has every director of a
bank the  right to  know the  transactions of his co-directors in
relation to  the management  of the 20institution. The stating of
the question furnishes the answer."

     A mandamus also lies to a setward who keeps the public books
of a  corporation, to  compel him to attend with the books at the
next corporate  assembly, and to deliver them up to his successor
in office.  Indeed, it lies to any person who happens to have the
books, papers, records, seal or other things, of either a private
or public  corporation in  his possession, and refuses to deliver
them up. (Commonwealth v. Atheam, 3 mass., 285; Rex v. Wildman, 2
Stra., 879;  7 Cush.,  239; 15 Ill., 492; 24 Vet.(1 Deane) 658; 2
Pick., 397;  25 Ill.,  325.) It  lies also  to  an  executor  who
refuses to  deliver up  the  books  of  a  borough,  until  money
expended by  his testator  on account  of it,  should be  repaid.
(Angell and Ames on Corporations, 441.) And on the refusal of the
treasurer or  clerk of  a religious society, whose term of office
has expired,  to deliver the records and papers of the society to
his successor  in office,  a writ  of mandamus will be issued, on
the petition  of the  society, to  compel  him  to  do  so.  (The
Proprietors of  St. Luke's  Church v. Slack et al., 7 Cush. Rep.,
226.)

     In regard  to a  public judicial body, it is clearly settled
that though  no provision  be made giving a binding effect to the
decison of  a majority,  yet, where they all convene and act, the
majority may  decide, notwithstanding  the express dissent of the
minority. (Ex parte Rogers, 7 Cow. Rep. 526.)

     And this  doctrine seems  also applicable  to  corporations,
both public and private. Therefore, where a certain body composed
of several  individuals, are  by  law  invested  with  powers  to
perform certain  acts, although  it is necessary that they should
all convene,  yet it is not necessary that they should all concur
in the  decision in  order to  make it  effective. And  where the
majority of  such body  have voted  that a  certain act  be done,
which is  within the  power conferred  upon them, and in order to
accomplish the  act thus voted by the majority, there is some act
to be  done by  one or  more of those who did not concur with the
majority, and  they refuse,  mandamus will  lie to compel them to
perform the act, and thus carry out the purpose of the majority.

     Thus in  the case  of Wadham College, Cowp. 377, the statute
provided that  the wardens should not affix the corporate seal in
any case  without the  consent of  himself and  a majority of the
fellows. He  being thus by name associated with a majority of the
fellows, he  insisted that  he had  a negative upon them. But the
court of  the King's  Bench held  that he  made but  one with the
majority of the fellows, who, with him, constituted the body that
should act;  and a  majority of  such body  having voted  that he
should affix the seal to an ansewr in chanery, they compelled him
to do  so by  mandamus, though  contrary  to  his  own  vote  and
consent.

     And in  Rex  v.  Buston,  3  T.  Rep.  592,  a  statute  had
authorized the  church wardens  and overseers of the poor to make
certain contracts.  They had  all,  with  the  exception  of  the
defendant (one  of the  overseers), who  refused to  join, made a
contract, and  the money  was in the defendant's hands to be paid
upon it.  On a  motion for  a mandamus  to compel  him to pay, he
insisted that  he was  not bound, inasmuch as the statue required
the contract  to be  made by  the church  wardens and  overseers,
without saying or a majority. They should, therefore, all concur;
and he  having dissented,  the contract  was  void,  and  he  was
therefore not bound to pay the money. The motion was granted, and
a rule for a mandamus entered.

     And in  the case  of Withnell v. Garthan, 6 T.R. 338, power,
by law,  was given  to the  vicar and church wardens to appoint a
schoolmaster to an ancient foundation. And the only question was,
whether all  the church  wardens must  concur with  the view. The
court held  that the  concurrence of  a majority  was sufficient.
Lawrence,  J.,   remarked:  "In   general,  it   would   be   the
understanding of  a plain  man, that when a body of persons is to
do an act, a majority of that body would bind the rest."

     Corporations may  also be  compelled by  mandamus to perform
those duties which are imposed by statute; this doctrine has been
acted upon by courts for a long period of time.

     A turnpike  company has  been compelled  to fence  its  road
where it  passed through the lands of private persons, and it was
held no  excuse that  the company  had made  satisfaction for the
damages awarded to the land owner, or that having completed their
road, they  had no  funds with which to build the fence. (Reg. v.
Trustees Sutton Road, 1 Q.B.R. 860.)

     Corporations may  also be  compelled by  mandamus to perform
public duties  and obligations  which are  expressly imposed upon
them by  the terms of their charters, and also those duties which
necessarily  arise   from  the   nature  of  the  privileges  and
obligations of their charters.

     It has,  therefore, been  held that  where a railway company
has obtained  an act of parliament reciting that the formation of
a railway  from A to D will be beneficial to the public, and that
the company are willing to execute it, and giving them compulsory
powers upon  land holders  for that  purpose, and the company, in
exercise of  the powers, have taken lands and thereupon made part
of their  line, they  are bound  bylaw to complete such line, not
only to  the extent  to which  they have  taken lands, but to the
farthest point,  although the  statute enacts only that "it shall
be lawful"  for them  to make the railroad. The decision seems to
have been founded upon the doctrine, that when a railroad company
has actually  purchased lands for their road under the compulsory
powers conferred upon it, that it enters into a contract with the
public to  construct a  railway upon  it. (Reg.  v. The  York and
North Midland Railway Company, 16 Eng. law and Eq. Rep., 299.)

     And in  the case  of Reg.  v. The  Lancashire and  Yorkshire
Railway Company,  16 Eng.  law and  Eq. 327, the court went still
farther, holding  that  a  company  having  obtained  an  act  of
parliament for  making a  railway, on representation that it will
be for  the public  benefit, with  compulsory powers  for  taking
lands along  the proposed line, is bound, from the time when such
act receives  the royal  assent, to  execute the  work; that  the
royal assent  makes the  act binding as a contract by the company
with the  public and  with the  landowners, whether  the  clauses
under which  the railway  is to  be made be in form imperative or
permissive; and  that the  courts will enforce the performance by
mandamus, at  the instance of one of the landowners, although the
powers dconferred  upon the  company are  temporary, and although
the company have taken no steps by issuing shares or otherwise to
carry the act into execution.

     But the  first of  these cases  came  before  the  Exchequer
Chamber, and was heard at great length before all the judges, and
an elaborate  opinion delivered  by Jervis,  C. J.,  of the C.B.,
reversing the  judgment of  the Q.B.,  chiefly on the ground that
there was  no implied  obligation upon the company, either before
or after  entering upon the works, to complete it. This decision,
reported in the 18 Eng. law and Eq. R., 199, is so comprehensive,
and the  questions so throughly and ably discussed, it is thought
advisable to  give the  decision in  full, although  it is  quite
lengthy.

     The court  say: "Upon  these  facts  several  points  arise:
first, does the statute of 1849 cast on the plaintiffs in error a
duty to  make this  railway? Secondly,  if it  does not, is there
under the  circumstances a  contract between  the  plaintiffs  in
error and  the land  owners, which  can be  enforced by mandamus?
Thirdly, and  failing these  propositions, does  a owrk, which in
its inception  was permissive  only, become  obligatory  by  part
performance? These  questions will  be found  upon examination to
exhaust the  subject, and  to comprehend  every view in which the
mandamus can  be  supported.  In  substance,  do  these  acts  of
parliament render  the company, if they do not make this railway,
liable to  an indictment, for a misdemeanor, and to action by the
party aggrieved?  For if  they do  notk, a mandamus will not lie,
and thus  the question  depends entirely upon the construction of
the special act, and the statutes incorporated therewith. The act
of 1849 may cast the duty upon the plaintiffs in error, in one of
two ways;  it may do so by express words of obligation, or it may
do so  by words  of permission  only, if  the duty can be clearly
collected from  the general  provision of  the whole statute. The
words of  the third  section of  the act  of 1849,  `it shall  be
lawful for  the said  company to  make  the  said  railway,'  are
permissive only,  and not  imperative, and  it is  a safe rule of
construction to  give to  the words used by the legislature their
natural meaning, when absurdity or injustice does not follow such
a construction.  Indeed,  if  there  were  any  doubt  upon  this
subject, other  parts of  the statute referred to in the argument
clearly show  that these  words were  intended to  be  permissive
only. The  distinction is  well put  by  my  brother  Erle;  `The
company are  permitted at their option to take lands, turn roads,
alter streams,  and exercise  other powers, and these matters are
made lawful for them; but they are commanded to make compensation
for lands  taken, to substitute roads for those they turn, and to
perform other  conditions  relating  to  the  exercise  of  their
powers, and  these matters  are requied of them.' It seems clear,
therefore, that the duty is not cast upon the plaintiffs in error
by the  express words ofthe statute of 1849; and , indeed, it was
not so  urged in  the argument;  nort  was  it  so  put  by  Lord
Campbell, in  his judgment  in the  court below.  But it does not
follow, merely  because  the  words  of  the  third  section  are
permissive 20only, that there is no duty cast upon the plaintiffs
in error by the statute taken all together, to make this railway.
This point  was not  relied upon in this case in the court below,
but it was made the distinct ground of a decision in another case
in that  court (The Queen v. The Lancashire and Yorkshire Railway
Co.), and  was much  pressed in the argument before us in support
of this judgment."

     "It becomes  necessary, therefore, to examine the statute in
its general  provisions, and to consider the grounds on which the
court of  Queen's Bench  proceeds in the case of The Queen v. The
Lancashire and Yorkshire Railway Co., 1 E. & B. 228; 16 Eng. L. &
Eq. R.,  328. We  agreee with  Lord Campbell, that the portion of
the line  between Market Weighton and Cherry Burton, to which the
mandamus applies,  is not to be considered as a separate railway,
or even  as a  separate branch  of a  railway, but  it is  to  be
treated as  if in  its present  direction it had been included in
the act  of 1846.  The acts,  then, taken  together in substance,
recite that it will be an advantage to the public if a railway is
made from  York to  Beverly, through  Market Weighton  and Cherry
Burton, according  to certain  plans and  sections deposited,  as
required by  the practice  of parliament,  and referred to in the
statute, and  that the  plaintiffs in  error are  willing to make
that railway. On this basis the whole provisions are founded."

     "It has  been proved  that the  work will be advantageous to
the public; it is assumed that the work will be profitable to the
company, and  that, therefore,  they will willingly undertake it.
Accordingly, the company are empowered to make this line. If they
do make  it, they  may take  land; but if they do take land, they
must make  compensation. If  necessary, they  may turn  roads, or
divert streams;  but if they do, they must make new roads and new
channels for  the streams  they alter. Similar provisions pervade
the whole  statute, and,  throughout, the  command waits upon the
authority, and the distincton between `may' and `must' is clearly
defined. But as it is manifest that such general powers must stop
competition, and  may, to  a certain extent, be injurious to land
owners on  the line,  compulsory power to take land is limited to
three years,  and the  time for making the railway to five, after
which the  powers granted  to the  company cease, except as to so
much of  the line  as shall have been completed, and the land, if
taken by  the company, reverts, on certain terms, to the original
proprietors. An  argument might have been founded on the terms in
which the  latter provision  is contained. By the 10th section of
the act  of 1849,  it  is  enacted  that  the  railway  shall  be
completed within  five years  from the  passing of  the act. That
section was not referred to in the argument for this purpose, but
it might  be said that these words were compulsory, and imposed a
duty upon  the company  to make  the line.  The  context  of  the
section, however,  when examined,  shows that  such  is  not  the
meaning of  it. If not completed within five years, the powers of
the act  are to  expire, except  as to so much of such railway as
shall have  been completed.  If the  section were  intended to be
obligatory,  it   would  not   contain   that   exception   which
contemplates  that   the  line   may  be  made  in  part.  It  is
inconsistent to  suppose that  the legislature  would say  to the
company in the same section, you may complete a part only, if you
can, if  five years,  and then as to that part, the powers of the
act shall continue; but you must complete the entire line in that
time. Upon  the whole,  therefore, we  find no duty cast upon the
company to  make  this  railway  in  any  part  of  this  act  of
parliament. On the contrary, the legislature seems to contemplate
the possibility  of the  railway being  made in  part,  or  being
totally abandoned. In the latter case, the powers expire in three
or five  years; in the former, the statute remains in force as to
so much  of the  railway as shall have been completed within that
time,  and   expires  as   to  the  residue.  This  provision  is
inconsistent with the intention to compel the company to make the
entire line,  as the  consideration for the powers granted by the
act."

     "But it  is said that a railway act is a contract on th part
of the  company to  make the line, and that the public is a party
to the  contract, and  will be  aggrieved if  the contract may be
repudiated by  the company  at any  time before it is acted upon.
Though commonly  so spoken of, railway actgs, in our opinion, are
not contracts and cannot be construed as such. They are what they
purport to  be, and  no more. They give conditional powers, which
if acted  upon, carry  with them  duties, but which, if not acted
upon, are  not either  in  their  nature  or  by  express  words,
imperative on  the campanies to which they are granted. Courts of
justice ought  not to  depart from the plain meaning of the words
used in  acts of  parliament. When they do, they make, but do not
construe the laws. If it had been so intended, the statute should
have required  the companies  to make  the line in express terms;
indeed some  railway acts  are framed upon this principle, and to
say that  there is  no differnce between words of requirement and
words ofauthority,  when found  in such acts, is simply to affirm
that the  legislature does  not know  the  meaning  of  commonest
expressions. But  if we  were at  liberty to  speculate upon  the
intentions of  the legislature  when the  words are clear, and to
construe an act of parliament by our own motions of what ought to
have been  enacted upon  the subject;  if, sitting  in a court of
justice, we  could make  laws, much might be said in favor of the
course, which,  in our  opinion, is  taken by  the legislature on
such  subjects.  Assuming  that  the  line,  if  made,  would  be
profitable to the public, that benefit may be delayed five years,
during which time competition is suspended. On the other hand, if
the line  would pay,  it probably  will be proceeded with, unless
the  company  having  the  power  is  incompetent  to  the  task.
Individual land  owners may  be benefited  by the  expenditure of
capital in  their neighborhood,  without looking  to the ultimate
result; but  it is  not for  the public  interest that  the  work
should be  undertaken by  an incompetent  company,  nor  that  it
should be  begun if,  when made, it would not be remunerative. By
leaving the  exercise of the powers to the option of the company,
the legislature  adopts the  safest check  on abuse  in either of
those respects,  namely, self interest. It seems to us, therfore,
that these  statutes do not cast upon the plaintiffs in error the
duty, either by express words or by implication, that we ought to
adher to  the plain meaning of the words used by the legislature,
which are permissive only, and that there is no reason, in policy
or otherwise,  why we  should endeavor to pervert them from their
natural meaning."

     "But it  is said  that the  land  owners  are  in  a  better
situation than  the public  at large,  and that  the privilege to
take their  own lands is the consideration that binds the company
to complete  the railway.  That during  the currency of the three
years, they  are deprived  of their full rights of ownership, and
if not to be compensated by the construction of the railway, they
would in many cases, suffer a loss, because whilst the compulsory
power of  purchase subsists,  they are  prevented from alienating
their lands  or houses  described in  the books  of refernce, and
from applying them to any purpose inconsitent with the calim that
may be made to them by the railway company. In truth they are not
prevented from  so doing  at any  time before  the notice to take
their land  is given,  if they act bona fide in the meantime; the
notice to  take their  lands being  the inception of the contract
between the land owners and the company."

     "But if  this complaint  was better  founded,  it  does  not
follow because  certain land  owners are  subjected to  temporary
inconvenience  for  the  performance  of  a  public  good,  that,
therfore, the  company are bound to make the whole railway. If it
were a contract between the land owners and the company, it would
not be  just, the  one should be bound and the other free. But to
assert that  there is  a contract between the land owners and the
company is  to beg  the whole  question; for, on this part of the
case, the  question is  whethe there  is such  a contract?  As  a
matter of  fact, we  know that  in  many  cases  no  such  actual
contract exists.  Some few proprietors may desire and promote the
railway, but many others oppose it, either from disinclination to
the project,  or with  a view  to make  better  terms.  With  the
dissentients there  is no  contract, unless  it be  found in  the
statute, andto  th statute  therefore we must look to see what is
the obligation  that is  cast upon the company, in respect of the
land owners  upon the line. As in the former case, the words upon
this subject  are permissive  only. The company may take land; if
they do,  they must  make full compensation. And in that state of
things, if  there be  a bargain  between the parties, what is the
bargain? The  company say,  in the  language of the statute, that
the bargain  is, that  they shall  make full compensation for the
land  taken,   and  no   more;  the   prosecutors  say  that  the
consideration to  be paid  for the  land is the full compensation
mentioned in  the act,  and also  the furthe consideration of the
construction of  the entire line of railway from York to Beverly.
But if  this is the price which the prosecutors are to have, each
land owner  is entitled  to the  same  value;  and  yet  by  this
mandamus the  other proprietors  on the line from Market Weighton
to Cherry  Burton, who,  perhaps, are hostile to the application,
are  constrained   to  sell   their  lands   for  an   inadequate
consideration, namely,  the full  compensation and a part only of
the line  of railway,  to which,  by the  hypothesis,  they  were
entitled by the original bargain."

     "If this  were the  true meaning  of the  statute, it  would
indeed, be  unjust, more  so than the imposition of the temporary
inconvenience to which ti is said the land owners may be subject,
and to  which we  have already referred. But that that is not the
true meaning  is clear  from the  words of the statute, which are
permissive, and  only impose the duty of making full compensation
to each  land owner;  as the option of taking the land of each is
exercised; and  further from the section to which we have already
referred, which  contemplates the  total abandonment of the line,
or a  part performance  of it, and makes provision for the return
of the  land to  the original  proprietors in certain cases. Upon
this part  of the  case the authority of Lord Eldon, in Blakemore
v. The  Glamorganshire Canal  Company, 1  Myl. & K. 154, was much
pressed  upon  the  court.  Speaking  of  contracts  for  private
undertakings, he says: `When I look upon these acts of parliament
I regard  them  all  in  the  light  of  contracts  made  by  the
legislature on  behalf of  every person interested in anything to
be done  under them,  and I  have no hesitation in asserting that
unless that  principle be  applied in construing statutes of this
description, they  become instruments  of greater oppression than
anything  in   the  whole  system  of  administration  under  our
Constitution. Such  acts of  parliament have now become extremely
numerous, and  from their  number and  operation,  they  so  much
effect individuals   that  I apprehend those who come for them to
parliament do, in effect, undertake that they shall do and submit
to whateverthe  legislature empowers  and compels them to do, and
that they  shall do  nothing else; that they shall do and forbear
all that  they are  thereby required  to do  and forbear, as well
with reference  to the interests of the public, as with regard to
the interest  of individuals.'  There is nothing in that language
to which  it is  necessary to make the least exception; indeed it
is nothing  more than an illustration of the obligatory nature of
the duty  imposed by  acts of  parliament, which do impose a duty
with reference  to other  persons. In  that case, the statute had
secured to Mr. Blakemore the surplus water, and had commanded the
company  to  do  certain  things  that  he  might  enjoy  it.  In
discussing whether  Mr. Blackmore's  right under  the statute was
affected by his right before the statute, his lordship might well
say he considered the statute the origin of Mr. Blakemores' right
in the light of a contract, and the statute then under discussion
containing the  express words of command, he might well add, that
those who  come for  such  acts  of  parliament  do,  in  effect,
undertake  that   they  shall  do  and  submit  to  whatever  the
legislature empowers  and compels  them to  do. As  we understand
them, the  words used  by Lord  Eldon in no respect conflict with
the view  we take  of this  case; but if they meant that words of
permission  only,   when  used   in  the  class  of  cases  under
consideration, should receive a construction different from their
ordinary meaning, because of construed otherwise, they might work
injustice, with  great respect for his high authority, we dissent
from the  proposition. We agree with my brother Alderson, who, in
Lex v.  Milner, 2 Y. & Coll. 611, said: `These acts of parliament
have been  called parliamentary  bargains, made  with each of the
land owners.  Perhaps more  correctly they ought to be treated as
conditional powers  given by  parliament to take the lands of the
different proprietors  through whose  estates the  works  are  to
proceed.'"

     "`Each land  owner, therefore,  has the  right to  have  the
power strictly  and literally  carried into effect as regards his
own land,  and has  the right  also to  require that no variation
shall be  made to  his prejudice  in the  carrying into  effect a
bargain between  the undertakers  and any  one else.'  `This'  he
adds, `I  conceive to  be the  real view taken of the law by Lord
Eldon in  the case  of  Blakemore  v.  The  Glamorganshire  Canal
Company.' There  remains but  one futher  view of  the case to be
considered,  and   that  we   have  partly  disposed  of  in  the
observations we  have already made; but inasmuch as Lord Campbell
proceeded onthis  ground only in the court below, although it was
not much  relied upon  before us in the argument, we have, out of
respect for  his high  authority, most carefully examined it, and
are of  opinion that  the mandamus  cannot be  supported, on  the
ground that  the railway  company, having exercised some of their
powers and  made apart of their line, are bound to make the whole
railway authorized by their statutes."

     "It  is   unnecessary  here   to  determine   the   abstract
proposition that a work which, before it is begun, is permissive,
is after  it is  begun obligatory. We desire not to be understood
as assenting  to the  proposition of  my brother  Erle, that many
cases may  create a  duty to be enforced by mandamus; and, on the
other hand,  we do  not say  that such  may not  be the law. If a
company empowered by act of parliament to build a bridge over the
Thames, were  to buildone  arch only,  it would be well deserving
consideration whether  they could  not be indicted for a nuisance
in obstructing  the river, or for the non-performance of aduty in
not completing  the bridge.  It is sufficient to say that in this
case there  are no  circumstances to raise such a duty, if such a
duty can  be created  by  the  acts  of  plaintiff  himself.  The
plaintiffs in  error have  made the  principal portion  of  their
line, and  they have abandoned the residue for no corrupt motive,
but because Beverly has already sufficient railway communication,
and because  the residue  of the  line passes  through a  country
thinly populated,  and if made, would not be remunerative. But it
is said  that the  railway company  are not  in the  situation of
purchasers of land, with liberty to convert it to any purpose, or
to allow  it to  be waste;  that they  are allowed to purchase it
only for  a railway,  and having acquired it under the compulsory
power of the act, there must be an obligation upon the company to
apply the  land to  that, and to no other purpose. Subject to the
qualification in  the  act,  this  is  undoubtedly  true.  Having
acquired the  lands of  particular land owners, the company could
not retain them by merely laying rails on the lands so taken, and
we agree it never was intended that the land owners shold be left
with a  high mound  or a deep cutting running through his estate,
and leading  neither to  nor from  any  available  terminus.  The
precaution against  such a  wasteful expenditure  of capital may,
perhaps, safelybe  left to  the self-interest of the company, but
if such  work were  to be  done, it  would not  be a  practicable
railway, and after five years the powers of the act would expire,
and the  land revest  in the original proprietor. It is true that
he would  sustain some  inconvenience without  the  corresponding
advantage of  railway communication, but in the meantime he would
have received  full compensation in the market value of the land,
and for  all damage by serverance or otherwise, and would receive
back the  land on  more reasonable  terms. To be a railwayit must
have  available  Termini.  When  the  statutes  passed  allperson
supposed the  termini would  be York  and  Beverly;  and  if  the
argument be  well founded and the company are bound, if they take
the land  upon any  portion of  the railway to complete the whole
line, it  would seem  to follow  that one  of the proprietary, by
compelling the  company to  take his land on the time from Market
Weighton to  Cherry Burton,  and the act having expired, to apply
to parliament for a renewal of their powers for that purpose. But
although the  termini were  originally intended  to be  York  and
Beverly, it  is  plain  that  the  ligislature  contemplated  the
possibility of  the line  being abandoned or being only partially
made, because  in the  one case  the powers  of the  act were  to
cease, and in the other they were partially continued. An option,
therefore, is  given to  some one. By the course taken, the Court
of Queen's  Bench has  exercised that option, and said line is to
be made,  not to  Beverly, but  to Cherry  Burton. In our opinion
that option  is left  to the company, and the company having bona
fide,  made  an  available  railway  over  the  land  taken,  the
obligation  of   the  land  owner  has,  in  that  respect,  been
fulfilled. The  cases upon  thissubject are  very  few,  and  the
absence of  authority is very striking, when we remember how many
acts have passed in pari materia, not only for railways, but also
for bridges  and turnpike  roads.  Notwithstanding  the  numerous
occasions on  which such  proceedings might  have been taken, and
the manifest  interest of land owners to enforce their rights, no
instance can  be found  of an  indictment for  disobeying such  a
statute, or  ofa   mandamus for  the purpose  of enforcing it. If
correctly   reported, Lord Mansfield determined this point in the
The King  v. The Proprietors of the Birminghamd Canal, 2 Wen. B.,
708, for  he says  the act  imports  only  an  authority  to  the
proprietors, not  a command. They may desert or suspend the whole
work, and  a fortiori  any part  of it.  On the  other side,  the
language of Lord Eldon i n Blakemore v. The Glamorganshire  Canal
Company is  referred to as an authority for this mandamus. In our
opinoin it  does not  bear that construction,althought it appears
that the  Court of  Queen's Bench  took a  different view of that
authority in  the case  of The  Queen  v.  The  Eastern  Counties
Railway Company, 10 Ad. & Ell., 531, and was inclined to act upon
it,andaward a  mandamus. The  writ was  subsequently withheld  in
that case,  on another ground, but Lord Denman seems to have been
of the  opinion that  on a  fit occasion  a mandamus ought to go.
That and  the recent  cases  in  the  Queen's  Bench,  now  under
discussion, are  the only  cases which  bear upon the subject. We
feel that Lord Denman and Lord Campbell are high authorities upon
this or  any other  matter, and  are both equally entitled to the
respect of  this court;  but we  are bound  to pronounce  our own
judgment, and  after  the  most  careful  consideration,  are  of
opinion that  the judgment  ought to  be for  the  plaintiffs  in
error. The  result is,  that the judgment of the court below must
be reversed."

     The Supreme  Court of the State of Connecticut has, however,
decided that  when a  railroad company  has  recieved  a  charter
authorizing htem  to construct  and operate  a  railroad  between
certain   points, and the company go forward, construct the road,
and put  it in  operation, and  afterwards  cease  to  run  their
passenger cars over a portion of their road, to the inconvenience
of the  traveling public,  a mandamus  will lie to compel them to
run their  cars over  the entire  line, in  such manner  as shall
reasonably accomodate the public travel.

     In that  case the Hartford and New Haven Railroad Companywas
chartered to  construct and  operate a  railroad from Hartford to
the navigable waters of New Haven harbor. A steamboat company was
afterwards chartered  to run  in connection  with it to New York,
and the  railroad and line of steamboats constituted a route that
was of great convenience to the public.

     After the  construction of  the road,  and the  use of it in
connection  with  the  steamboat  line  for  several  years,  the
railroad company  constructed a track diverging from the original
track, at  a point  a mile  and a  half from its terminus at tide
water, and  running to  the station of the New York and New Haven
Railroad Company,  in the city of New Haven, and discontinued the
running of  passenger trains  to the  original terminus  at  tide
water.

     This change  incommoded travelers  who wished to pass by the
steamboat  route.   The  respondents   in  their  return  to  the
alternative mandamus  alleged that  they had discontinued running
their passenger  cars over  a certain  portion of  their road, in
pursuance of  a contract  made by  them with the New York and New
Haven Railroad  Company, the  object of  which was,  among  other
things, to  prevent the  extension of  a certain  railroad in the
State, which would interfere with the respondent's road; by which
contract they  had agreed  that they  would not, during a certain
term, run any passenger train over their road, in connection with
any steamboat  running between  New York and New Haven, and would
not during  said term,  run any  passenger trains  to or from the
steamboat dock  in New Haven; that said term had not expired, and
that hte  said New  York and New Haven Railroad Company insist on
the observance  of said  contract as  binding nad obligatory upon
the respondents,  and that  they should  not run their trains, or
transport passengers  to and from said terminus, as in said order
required. The  court held  that this contract was void as against
public policy,  and that  a mandamus ought to issue to compel the
railroad  company   to  run  passenger  trains  to  the  original
terminus.

     Ellsworth, J.,  in delivering the opinion of the court said:
"We consider  the return  made by the respondents to the mandamus
unsatisfactory and  insufficient, presenting  no reason  why  the
order should not be immediately executed.

     "The  respondents   admit  that  they  have  accepted  their
charter, made and completed their road as required, and for years
have continued  to run cars upon it for freight and passengers to
and from  tide water,  in the  harbor of New haven, in connection
with steamboats from New York; and they do not deny that they are
now using  part of  their road for the transportation of freight,
but they  refuse, and  have for some time past refused, to use it
for the  transportation of  passengers. And  it is  substantially
admitted by  the return  that  the  public  convenience  will  be
subserved by the use of this part of the road.

     "Now it  is difficult  to perceive on these premises on what
ground the  respondents can  justify their  refusal to  discharge
their entire  corporate duty; how they can expect to retain their
franchise, and pay no attention to the duty it enjoins upon them.
The contract  with New  York and  New Haven Railroad Company that
they will  not permit   the  public to  enjoy the benefit of this
part of  their road,  amounts to nothing. It is, in our judgment,
an aggravation  of their  censurable neglect of duty instead of a
legal excuse  for the  neglect. What  right have they to covenant
with that corporation, that they will not run cars to tide water,
as the  charter provides  that they  shall,  and  as  the  public
accomodation requires,  especially  when  they  enter  into  that
covenant to  secure to  that corporation a monopoly of the public
travel to  and from  New York, and as an equivalent, to secure to
themselves a  like monopoly  of all  the  travel  in  Connecticut
Valley, to  the prejudice  of every  other corporation that might
have an  interest in  those routes?  The whole  proceeding,  from
first to  last, seems to us to be in contravention of the charter
obligations of  both these  companies, and  to present  a case of
odious monopoly,  if not  of positive oppression and wrong, which
can receive  no countenance from an impartial tribunal. We hardly
know what doutbul principles of law are thought to be involved in
the case. The respondents certainly were bound to make their road
(if at all) within the time prescribed in the charter; and having
made it,  to put  it into  use -  every material part of it - and
keept it  in use  u ntil  discharged by the legislature. And this
continuous duty is in no manner inconsistent with the powerin the
company (which  has been  so much dwelt upon in the argument), to
regulate and  control the  manner of  using the road by wholesome
rules and  by-laws. These  we admit  are necessary and allowable;
but then  they must  be such  as  are  really  promotive  of  the
original design  of the  charter and  not such  as tend to defeat
that design.  Under the  contract in question, viewed in the most
favorable light, persons traveling by railroad down the valley of
the Connecticut,  and desiring at New Haven to take the steamboat
for New  York, and  those coming  by steamboat  from New York and
designing to  take the  cars,  must  necessarily  be  exceedingly
incommoded: while  this very course of travel was well known when
the charter  was granted,  and was  intended to  be  secured  and
promoted by it.

     "We borbear  going into other questions raised on the trial,
or commenting  on the  authorities cited  by counsel. We think it
unnecessary, and  prefer to  place our  decision upon  the simple
ground of  the corporate  duty of  the respondents.  All  jurists
andjudges will at once agree that chartered companies are obliged
fairly and  fully to  carry out  the objects  for which  they are
created, and that they can be compelled by mandamus to do it: and
it will  not be  questioned that  in the case of public highways,
whether turnpike  or railroads,  they are  bound to keep them fit
for use,  and in  the case  of railroads,  to keep them furnished
with suitable  cars, engines  and attendants,  without which they
cannot be  used at  all. We  advise theissuing  of  a  peremptory
mandamus." (State v. The Hartford and New Haven Railroad Company,
29 Conn. Rep., 538.)

     And in Rex v. The Severn andWyeRailway, 2 B. & Ald., 646, it
was held  that when  a railway  company, after  having  completed
their road,  under an act of parliament, by which it was provided
the public  should have the beneficial enjoyment of the same, had
no right  to discontinue it, and as they had proceeded to take up
the railway,  a mandamus  was awarded to compel them to reinstate
it.

     When the  act of the legislature creating a railroad company
forthe purpose  of making  a  road  between  certain  termini  is
imperative upon the companyto build their road, this duty will be
enforced by  mandamus. (18  Eng. L  & Eq.  Rep., 211;  8 W. & S.,
365.) The  same rule applies in all cases when a charter is given
to a  company, for  the purpose  of promoting some public object,
and  the   language  of   the  statute  is  imperative,  and  not
permissive. Therefore,  where an  act  of  parliament  created  a
company to  improve the  port and  harbor of  Bristol,  by  doing
certain works,  among  which  were  the  making,  completing  and
maintaining a new course or channel for the Avon, from at or near
the Redcliff,  by a  certain line  into  the  Avon,  at  a  point
described; and  one clause  of the  act  expressly  required  the
company to  make, complete  and maintain these works, it was held
by the  court that  the act  imposed upon the company the duty to
keep the  works in  repair; that  those  who  obtain  an  act  of
parliament for executing great public works, are bound to fulfill
all the  duties thereby thrown on them, and may be called upon by
the courts,  by mandamus  to do  so. A  mandamus was,  therefore,
awarded, commanding  the company  to make the repairs. (The Queen
v. The  Bristol Dock  Company, 2  Eng. Railway  and Canal  Cases,
437.)

     And where,  by a  railway  act,  a  company  were  empowered
generally to divert, raise, sink or deepen any roads, in order to
carry the same over, under or by the side of the railway, subject
to the  provisions and  restrictions of  the  said  act,  and  by
another act they were authorized to carry the line of the railway
across a certain turnpike road, by means of a bridge of the width
of thirty  feet at  the least,  and for that purpose to lower the
then present  bed of  the road, but in so doing, were required to
leave a  certain inclination  on each  side of  the  bridge,  and
headway under  it, and to relay and reform the road. And from the
alternative writ of mandamus, and in the return, it appeared that
the railroad  company had  constructed  the  bridge  of  a  width
exceeding the  directions of  the act,  and the turnpike road had
been excavated on each side of it, but not to the whole extent of
its ancient width, it was held by the court that although the act
did not specify the width the road should be after excavation was
made, yet  the language  and meaning  of the act imposed upon the
company the  obligation to  extend the excavation, on lowering of
the road,  to the whole original breadth, and that mandamus would
lie  to   compel  a  compliance  therewith.  (The  Queen  v.  The
Manchester and  Leeds Railway  Company, 2  Eng. Railway and Canal
Cases, 520;  The Queen  v. The  Birmingham and Gloucester Railway
Company, 2 Eng. Railway and Canal Cases, 508.)

     So, where by a railway act, it was provided that the company
should not  carry the  railway across  a certain  turnpike  road,
except by means of a bridge of the width of thirty feet, so as to
form a  clear carriage  road under  the bridge  of the  width  of
twenty-four feet, with a foot path of six feet, and of the height
of the  eighteen feet  from the  under side to the surface of the
road; and that in case it should be necessary to lower the bed or
surface of  the road, it was to be so effected that the ascent on
the road should not exceed one foot in fifty on the south side of
the bridge,  and one  foot in  a hundred  on the  north. That the
company should  make new  fences and drains, and relay and reform
the road;  and that  the alterations  should be  made  under  the
superintendence and  direction of  the trustees  of the road. And
the company  made a bridge over the road, and lowered the surface
under   the bridge  to the  depth  of  nine  feet,  givening  the
required ascent  oneach side; but instead of making the bed ofthe
new road  forty-two feet  wide (the  width of the old road), they
made a  sunken carriage  way of  thirty-five and  a half  feet in
width on  the north,  and of  twenty-four feet  under and  on the
south side  of the  bridge, leaving the foot-path at the original
level, and  having reduced  its width  in some places from six to
three and  a half  feet, by  making  steps  descending  to    the
carriage road;  it was  held that  such works of the company were
not in  compliance with  the act;  and the  rule  for  issuing  a
mandamus was  made absolute.  (The Queen  v. The  Manchester  and
Leeds Railway Company, 1 Eng. Railway and Canal Cases, 385.)

     And where  by a  railway act,  a  company  was  required  to
construct a  bridge over  the river  Y, so  as to  leave the same
width of  water-way under  the same as there existed at the point
where the river was crossed, and so  that there should be a clear
height of  five feet  above the  ordinary  level  of  the  river;
provided, that  after notice given to the company by any owner or
occupier of lands adjoining the railway, that the said bridge was
not made  according to the true intent and meaning of the act, it
should be  lawful for  such owner  or occupier  to apply  for and
obtain an  order from  a justice of peace enabling such person to
make such  bridge accordingly, the expenses to be defrayed by the
company.

     The company  were constructing a bridge which did not comply
with either  of the above provisions, whereupon a land owner gave
them notice,  requiring them  to construct  a bridge, leaving the
former width  of water-way,  and the  clear height  of five  feet
above the  water, in  the terms  of the act. The commpany replied
that they  would do  the first and would accept process as to the
second. They  afterwards made the bridge the required height, and
to preserve  the same  width of  water-way, commenced cutting the
banks of  the  river,  which  they  afterwards  discontinued.  To
subsequent applications to proceed with the work they returned no
answer.

     It was held that the above facts amounted to a refusal to do
what was  demanded, and  that the  applicant was  entitled  to  a
mandamus, notwithstanding  the powers  given him of applying to a
justice for  an order  enabling him  to build the bridge himself.
And to  the objection  against issuing the mandamus on the ground
that the  act provided  another specific and legal remedy, it was
said by the court, that it would be rather absurd if a person was
to have no other remedy than to pull down the bridge and build up
a new  one himself. (The Queen v. The Norwich and Brandon Railway
Company, 4 Eng. Railway and Canal Cases, 81.)

     And where,  by a railway act, a company was required to make
proper watering places for cattle in all cases where, by means of
the railway,  the cattle  of any persons occupying lands adjacent
thereto should  be deprived  of access  to their ancient watering
places, and  to supply  the same with water, and it appeared from
the alternative  writ, and  the return  thereto, that the company
had carried  their road  through certain  closes belonging to the
relator, and  that by  means thereof  ancient ponds  and watering
places for cattle had been cut off from said closes, and that the
company had  been called  upon by  the  relator  to  supply  such
watering places,  which they  had refused  to do,  the  Court  of
Queen's Bench  made the  rule for  a  peremptory  writ  absolute,
commanding the company, at their own proper costs and charges, to
make, or  cause to be made, proper watering places for cattle, in
such portions  respectively of said several closes of land as was
aforesaid, and  to supply  the same at all times with water, when
made, purusant  to the aforesaid application made to them in that
behalf. And  although this case was afterwards taken on a writ of
error to the Exchequer Chamber, and the judgment reversed, yet it
was not reversed on the ground that mandamus would not lie in the
case commanding  the company  to do  that required of them by the
act, but  on the ground that there was nothing on the face of the
writ to  show that  eight ponds were necesssary or proper for the
occupation of  the eight portions of the fields that were severed
from the  other parts  in which  there were ponds before. That it
was quite  consistent with  all that  appeared on the face of the
writ, that  one watering  place would  have been  sufficient  and
proper for  the whole  of them.  And that as the writ ordered the
company to  make a pond in each of the portions of the closes, it
commanded something to be done which was not shown to be required
of the  statute, and was, therefore, not valid in law. (The Queen
v. The York and North Midland Railway Company, 3 Eng. Railway and
Canal Cases, 562, 570.)

     As there  is frequently much difference of opinion as to the
true meaning  of the  requisitions of  particular  statutes,  the
party acting under a statute should not have a mandamus moved for
against him  before he  has had distinctly brought to  his notice
the precise  act which  he is  required to  do, and his attention
drawn to  his adversary's construction of the statute. And when a
company has  completed their  works in a mode at all varying from
the letter  of theiract,  a party interested, and disapproving of
such deviation, should not go to the court for a mandamus against
the company  before havingmade  a demand to have the work done in
another way.  And expressions  of disapprobation  while the works
are proceeding,  though proper  to be  made, do  not relieve such
party from  the necessity  of  specifically  demanding  a  proper
compliance with  the statute after the works are done, as without
it he  might be supposed to have waived his objection. (The Queen
.v The  Bristoland Exeter  Railway Company,  3 Eng.  Railway  and
Canal Cases, 318.)

     It  seems   also  that  the  mandamus  should  require  some
particular thing  to be  done, and  not in general terms, command
that the work should be made conformable to the provisions of the
act. (The  Queen v.  The Eastern Counties Railway Company, 3 Eng.
Railway and Canal Cases, 18.)

     A mandamus  will also  issue at the suit of supervisors of a
town to compel a railway to build a highway or bridge, for public
use, where  such work  is within the requirements of its charter.
(8 Watts and Sergeant Rep., 365; 2 American Railway Cases, 263; 7
Mit., 70; 37 Maine, 461; 9 Rich, 247.)

     It has  been said  that "no  better general rule can be laid
down  upon  this  subject  than  that  where  the  charter  of  a
corporation, or  the general  statute in force, applicable to the
subject, imposes  a specific duty, either in terms or by fair and
reasonable construction  and implication,  and there  is no other
specific or  adequate  remedy,  the  writ  of  mandamus  will  be
awarded. But  if the  statute, or  the general  law of the State,
affords any  other specific  and  adequate  remedy,  it  must  be
pursued."(Redfield on Railways, 456.)

     Although it  seems mandamus  will lie to enforce the payment
of money awarded against a corporation, in pursuance of a statute
duty, where  no other  specific remedy  is provided  (The King v.
Nottingham Old  Water Works, 6 Ad. &Ellis 355; Rex v. Trustees of
Swansea Harbor,  8 Ad.  & Ellis, 439), yet the courts will not in
this manner  enforce   the ordinary  matter of  contract or right
upon which  action lies  in the  common  law  courts.  (Ex  parte
Robbins, 7 Dowl. P. Cases, 566.)

     If, however,  the party  has no right to execution, mandamus
will be  awarded to  compel the  payment of  money,  although  an
action at  law might  lie. (4  Barn. &  Ad., 360;  3 Ib.,  801; 1
Q.B.R., 288.)

     Thus, when  the St.  Katherine Dock Company was incorporated
by act of parliament, which directed that all actions against the
company should  be prosecuted against the treasurers or directors
for the  time being,  but that  the body or goods, lands, &c., of
such treasurer  or director  should not,  by reason  of his being
defendant in  such action,  be liable  to  execution.  An  action
having been  brought by  T.C. against  the treasurer as such, and
another by the company in the name of the treasurer against T.C.,
all matters  in difference  were referred  to an  arbitrator, who
awarded that  T.C. had  cause of  action against the defendant as
such treasurer for a certain sum, and directed that the treasurer
should pay  T.C. that  sum on  demand; aand as to the other suit,
heawarded that the treasurer, as such, had no cause ofaction, and
ordered him,  assuch treasurer,  to pay T.C. the costs on demand;
it was  held that  a mandamus  would lie  to  the  treasurer  and
directors, commanding  them to  pay the sums awarded. (2 Shelford
on the Law of Railways, 839.)

     And in  Reg. v.  Bristol and  Exeter Railway company, 3 Eng.
Railway and  Canal Cases,  777, the  court granted  a mandamus to
compel a railway company to pay compensation for damages under an
agreement upon  which no  action would  lie, because  it was  not
under the  common seal  of the  company. But  where, by an act of
parliament, constituting  a joint stock company, the company were
to apply  the first moneys received under the act in discharge of
the expenses incurred in obtaining  the act, it was held that the
plaintiff, though  a member  of the  company, might  maintain  an
action of debtor case at his election, for  his services andmoney
expended inobtaining  the  act,  and  that  mandamus  would  not,
therefore, lie.  (Carden v.  General Cemetery  Co., 5 Bing., 553;
Tilson v. Warwick Gas Light co.,4 B.& C., 962.)

     And where  a railway  act enacted that a company established
by it should, in a given event, pay a certain other company a sum
not exceeding a given amount, by way of compensation for the loss
of tolls  by the latter company, the given event having happened,
it was  held that  mandamus was not the proper mode of compelling
the payment  of the  compensation money, as debt would lie on the
statutory obligation. (2 Sheldord on the Law of Railways, 840.)

     So, where  the act  incorporating  a  railway  company,  and
empowering them  to build abridge over the Ouse, recited that the
building of  such bridge  might diminish  the tolls received at a
neighboring bridge  over the  same  river  belonging  to  another
company; and  it, therefore,  enacted that if, in the first three
years after the opening of the railway, there should be an annual
decrease in  the tolls  of the last mentioned bridge, as compared
with tolls  during  the  three  preceeding  years,  the  railroad
company should forthwith pay to the bridge company a sum equal to
ten years'  purchase of  such  annual  decrease,  taken  upon  an
average of  the three  years in  which it  occurred; the decrease
took place, and the compensation was claimed. It was held that an
action of debt lay against the company for the amount, and that a
mandamus to  compel payment  was not a more effectual remedy, and
ought not  to be  granted. (Reg. v. Hull and Selby Railway Co., 6
Q.B.R., 70; 3 Eng. Railway and Canal Cases, 705.)

     Patterson, J.,  delivering the opinion of thecourt said: "On
considering this  case, which  was argued  in the  absence of the
Lord Chief  Justice, we  are of opinion that an action of debt on
the statutory  obligation will  clearly lie, and the remedy would
be equally  efficacious as  the remedy  by writ  of mandamus.  In
either case  the amount must be assessed by a jury. In an action,
execution would  go against  the goods  of the corporation, and a
peremptory mandamus  could only  be enforced by distress on other
goods. The present question was not raised in the argument in the
case of  Regina v.  The Great  Western Railway  Company, ante, p.
700, at  all. We  are, therefore,  of opinion that the rule for a
writ of mandamus must be discharged."

     Norris v.  Irish Land  Co., 8 ellis & B., 512, was a case in
which  an   administrator  alleged   that   the   defendants,   a
corporation, were  bound by their charter and by subsequent deed,
to keep  a proper  registry, in  a book kept for that purpose, of
the residence and number of shares belonging to each shareholder,
and of  changes in  ownership, which  book was  to be  conclusive
evidence as  to who  were proprietors  of the  stock, and that in
case of  death of  a shareholder,  his  personal  representatives
might give notice of their wish so to do, and become shareholdres
by signing  the deed  and  paying  any  arrears,  and  were  then
entitled to  have their  names registered  as such;  that he, the
administrator, had  complied with  the terms  and was entitled to
have the entry made in his favor, but that the defendants refused
to  make  it,  and  he  claimed  damages,  and  also  a  mandamus
commanding the  defendants to make the entry, he alleging that he
was personally  interested. The  court held that a mandamus would
lie.

     That an  action will  lie against  a joint stock company who
neglect or  refuse, upon  proper request, to enter upon the books
of the  company the  transfer of  share of stock, which have been
purchased of a stockholder, is sustained by numerous authorities.
(Rex v.  Bank of  England, Doug. Rep., 424; Shipley et al. v. The
Mechanics' Bank,  10 John's Rep., 484; Helm v. Swiggett, 12 Ind.,
194; Sargent  et al v. Franklin Ins. Co., 8 Pick Rep.90; Redfield
on Railways,  62.) But  that mandamus  will lie to compel them to
make the entry of transfer has been denied by high authority.

     In the  matter of  Morris Shipley  et al.  v. The Mechanics'
Bank, 10 John's Rep., 484, amotion was made for a mandamus, to be
directed  to   the  president,  directors,  and  company  of  the
Mechanics' Bank,  commanding them  to permit  Morris Shipley  and
others, assigness  of Samuel Kip, to transfer eight shares of the
capital stock of the bank standing on the books of the company.

     It appeared  from the  affidavits read,  that Kip  had  been
regularly discharged  under the  insolvent act,  and that Shipley
and others  had been  duly appointed  the assignees  of  all  his
estates, real  and personal, and that the shares in question were
inserted  in  the  inventory  of  his  estate  exhibited  by  the
insolvent. The  assignee applied  to thecompany to be permittedto
transfer the  shares, which  the company  refused, on  the ground
that Kip was indebted to them, in the sum of $1,474.60, for money
lent, &c., and at the time, held the eight shares to the value of
twenty-five  dollars  each,  which  they  claimed  the  right  of
retaining and  applying towards  paying the debt due to them from
Kip.

     The court  said: "The applicants have an adequate remedy, by
a special  action in the case, to recover the value of the stock,
if the  bank have refused to transfer it. There is no need of the
extraordinary remedy by mandamus, in so ordinary a case. It might
as well  be required  in every case where trover would lie. It is
not a  matter of public concern, as in the case of public records
and documents,  and there  cannot be  any necessity,  or  even  a
desire  of  possessing  the  identical  shares  in  question.  By
recovering the  market value  of them, at the time of the demand,
they can  be replaced.  This is  not the  case of  a specific and
favorite  chattel,  to  which  there  might  exist  the  pretinue
affectionis. The  case of  The King v. The Bank of England (Doug.
524), is in point,and this remedy in that case was denied. MOtion
denied." (Wilkinson v. Providence Bank, 3 R.I. Rep., 22.)

     But where, by the charter, or the by-laws of the company, it
is made  the duty  of the officers of the company to enter in the
books of  the company,  the transfer ofshares, it is difficult to
perceive upon  what principle  it can  be successfully maintained
that mandamus  will not  lie to  compel the  officers to  perform
their duty.  An action  fordamages against  the officers  of  the
company, or  against the  company, for such neglect or refusal to
performtheir duty, is no more a complete and adequate remedy than
is an  action against public officers who refuse to perform their
official duties.  And an  action in  the latter case, as has been
before observed (ante, 108), if of such doubtful character as not
to supersede the remedy by mandamus.

     That a  writ of  mandamus will  lie in such case, seems tobe
sustained by  the weight  of modern  authority. (Rex v. Worcester
Canal Co.,  1 M.  & R.,  529; Regina v. Liverpool, Manchester and
Newcastle-upon-Tyne Railway  Co., 11 Engl. L. & Eq. R., 408; Helm
v. Swiggett, 12 Ind., 194; Redfield on Railways, 63.)

     Where  an   act  of   the  legislature  is  passed  for  the
incorporation  of  a  company,  and  appointing  certain  persons
commissioners to open books of subscription to the capital stock,
and authorizing  such commissioners  to apportion the stock among
the subscribers  in a  certain manner,  upon  their  taking  upon
themselves the duties of such commissioners, and their neglect to
perform the  duties by  opening books of subscription, or refusal
to make the apportionment of stock, mandamus lies against them to
compel the  performance of  such duties.  (Walker v. Devereaux, 2
American Railway Cases, 542.)

     It seems  to be  an admitted  principle, that  every endowed
minister (that  is,  those  to  whose  functions  emoluments  are
attached), of  any sect  ordenomination  of  Christians,  who  is
wrongfully refused  admission to,  or dispossessed of his pulpit,
is entitled to the writ of mandamus to be admitted or restored to
his functions,  and the temporal rights with which it is endowed.
(Rex v.  Barker, 3  Burr, 1265;  Runkel v.  Winnemiller, 4 har. &
McHen. Rep., 430.)

     But where  there is no legal right, and no endowment, and no
emoluments, except  such as  depend on voluntary contributions, a
mandamus will  not  lie,  either  to  admit  or  to  restore  the
minister.

     It was,  therefore, held  by the court of Errors and Appeals
of the  State of  Delaware, in  the case  of The  Union Church of
Africans v.  Ellis Saunders,  4 American L. Reg., 378, that under
the  voluntary  system  of  church  government  in  this  country
(except, it would seem, in cases of actual endowment), a mandamus
cannot issue  to compel  the trustees  or members of a particular
church to  admit a  minister to  the exercise  of  his  spiritual
functions, and  this, though  he may  have  been  duly  appointed
thereto by  the superior  ecclesiastical authority,  a  Methodist
yearly conference.  The same  doctrine  is  maintained  in  other
States. (4 har. & McHen.'s Rep.,448.)

     The case  of The  People v.  Steele, 2  Barb. Rep.  397,  is
hardly reconcilable  with the  cases cited  above. It  was  there
decided that where a congregation was organized, and its house of
worship dedicated  with a view to the preaching of the faith, and
enforcing the  discipline of  the Methodist Episcopal Church, and
it was  the intention  of its  founders to  establish a Methodist
Episcopal Church  in connection  with the  general church of that
denomination, and  to support  the  tenets  of  that  church,  in
subjection to  the ecclesiastical  power thereof,  the refusal of
the trustees to receive a preacher appointed by the bishop was an
act of  insubordination to  the ecclesiastical  tribunals of  the
church, and  in violation  of  one  of  the  injunctions  of  its
discipline,  which   authorized  the   issuing  of  a  peremptory
mandamus, commanding  them to  admit the preacher thus appointed,
into the church.

     It was  also held  that it was no excuse for the trustees to
return that the relator was not the choice of the majority of the
congregation, and  that such  majority sustained  the trustees in
excluding him from the possession of the pulpit.

     Mandamus will  also lie  to compel a corporation to admit to
membership one  who is  in law  entitled to  the franchise  of  a
corporator, unless  excluded  by  the  operation  of  some  valid
regulation or  by-law of  that particular  society. And  where  a
party having  a clear  presumptive title, claims admission to the
exercise  of  a  corporate  franchise,  the  right  of  immediate
expulsion should  be  clear  and  unquestioned,  to  justify  the
rejection of the claim.

     Therefore, where  the relator  was a practicing physician in
the county  of Erie,  had received  a thorough medical education,
and, in  virtue of his diploma from the New York Medical College,
was  entitled  to  practice,  in  any  part  of  the  State,  the
profession to  which he  had dedicated  his life, and the statute
imposed on  the president  of the County Medical Society the duty
of notifying him to apply for admission to such society, but, for
some cause  not disclosed  in the  papers, that duty had not been
discharged, though at the time the proceeding was instituted, the
relator had  been in  active and successful practice for a period
of seven  years; and  in June, 1859, the relator made application
for admission,  and proposed  to comply  with the  conditions  of
membership  and  to  subscribe  to  the  conventional  rules  and
regulations adopted  by the  society for  the government  of  its
members, and  the  sole  ground  on  which  his  application  was
rejected was,  that at  an antecedent  period he had not observed
certain conventional  regulations which  the society  had made by
their code of by-laws, it was held by the court, that the code of
medical ethics  adopted by  the by-laws of the County Society was
obligatory on  members alone,  and its non-observance previous to
membership furnished  no legal  cause  either  for  exclusion  or
expulsion; that the relator's diploma was presumptive evidence of
his professional qualifications; and that as it appeared that his
private character was irreproachable, and the only qualifications
for admission  required by  the by-laws, were "that the applicant
should be a physician or surgeon, residing in the county of Erie,
of temperate habits, good moral character, and legally authorized
to practice  physic or surgery in this State," he was entitled to
admission, and  an order  of  the  court  granting  a  peremptory
mandamus to compel the society to admit the relator to membership
was affirmed. (The People v. The Medical Society of the County of
Erie, 32 N.Y.R. 187.)

     Mandamus will  also lie to restore a member of a corporation
who has been illegally disfranchised.

     Every member  of a  corporation  is  understood  to  have  a
franchise  or  freedom;  and,  therefore,  where  the  member  is
deprived of this franchise, or freedom, by being expelled, it may
very properly  be said  that he is disfranchised. (2 Black. Com.,
37; 1 Kyd, 15.)

     With regard  to what  are called  joint  stock  incorporated
companies, or  indeed any  corporations owning property, it seems
that a  member cannot  be expelled,  and  thus  deprived  of  his
interest in  the stock,  or general  fund,  in  any  case,  by  a
majority of the corporators, unless such power has been expressly
conferred by  the charter.  (Angell& Ames on Corporations, 238; 5
(N.S.) Law Reg., No. 7.)

     But where  a member  of a corporationcrated for religious or
charitable purposes,  and the members of such corporation are not
stockholders, and  are without  any  pecuniary  interest  in  the
organization, disqualifies  himself to  assist in  promoting  the
objects  and   purposes  of  the  corporation,  he  forfeits  his
corporate franchise, and may legally be expelled. For example, if
a  member  of  a  corporation  created  for  the  advancement  of
religion, should  conduct himself in such manner as to counteract
the effects  of other  members  in  effecting  that  object,  the
corporation might  be authorized  to disfranchise  or expel  him.
(Angell &  Ames on  Corporations, 239;  Evans v. The Philadelphia
Club, 14 Wright's (Penn.) Reps.)

     The law  in such  cases, as  it has  been laid  down by  the
Supreme court  of Pennsylvania,  is that a corporation possesses,
inherently, the  power of  expelling members in certain cases, as
such power  is necessary  to the  good order  and  government  of
corporate bodies;  and that  the cases  in which  this  inherenct
power may be exercised, are of three kinds: 1st. Where an offense
is committed  which has  no  immediate  relation  to  a  member's
corporate duty,  but is  of so  infamous a  nature as renders him
unfit for  the society  of honest  men; such  are the offenses of
perjury, forgery,  &c. But beforean expulsion is made for a cause
of this  kind, it  is necessary  that there  should be a previous
conviction by a jury, according to the law of the land. 2d. Where
the offense is against his duty as a corporator; in which case he
may be  expelled on  trial and conviction by the corporation. 3d.
The third offense of a mixed nature, against the member's duty as
a corporator,  and also  indictable  by  the  law  of  the  land.
(Commonwealth v.  St. Patrick  Society,  2  Binney's  Rep.,  448;
Commonwealth v. Guardians of the Poor, 6 Serg. & Rawl., 469.)

     In the case of The Commonwealth v. Philanthropic Society , 5
Binn. (Pa.),  486, an  application was  made for  a  mandamus  to
restore a member of the society who had been expelled. The return
showed the  expulsion and the cause. The question was whether the
member had  been properly  expelled.  It  appeared  that  by  the
articles  of   the  society,  certain  causes  of  expulsion  are
enumerated, which  consist in  being concerned  in scandalous  or
improper proceedings,  which might  injure the reputations of the
society. It  also appeared,  from the  minutes of  the expulsion,
that he  had made the demand on the society for relief, agreeably
to the  rules of  the institution,  and had  presented to  them a
physician's bill,  which he  alleged he  had paid,  amounting  to
forty dollars;  but in fact it was a bill which he had altered by
adding a cypher to four, the amount of the real bill.

     Tilghman, C.J.,  said: "If  this was  not a  forgery, it was
very like it. That it was a scandalous and improper proceeding is
most plain.  Did it tend to injure the reputation of the society?
No one  can doubt,  unless the society is without reputation. The
tendency of  such conduct  is  self-evident."  The  mandamus  was
refused.

     And where  the by-laws  of an  incorporated medical  society
provided that  any member  of the  society might be expelled from
the society by a vote of two-thirds of the members present at any
annual meeting,  "for any  gross  and  notorious  immorality,  or
infamous crime  under the  laws of the land," and the relator had
by a  two-thirds vote  of the society, at an annual meeting, been
expelled for  the alleged  offense of  gross immorality in having
broken his  solemn pledge  given to  one  Dr.  Carpenter  to  not
practice his  profession in a certain place, and he had therefore
petitioned for  a writ  of mandamus  to order the said society to
restore to  membership the  petitioner, it  was held  that as the
society, both  by its  charter and  by-laws, had  jurisdiction to
inquire into  and pass  judgment upon the conduct of its members,
and, in a proper case, to expel a member; and gross immorality in
a professional  transaction,  having  a  tendency  to  bring  the
profession into  dishonor before  the commmunity,  if  distinctly
charged and  proved, may be of such a character as to justify the
exercise of  their power. And as the proceedings appeared to have
been conducted  with deliberation, and several opportunities were
given to the petitioner to be heard before the committee, and the
counselors, and  the vote  of expulsion  was unanimous; and there
was no  evidence of haste or prejudice against the petitioner, or
that the  society came to a wrong decision, or acted in violation
of the  petitioner's rights, the petition was dismissed. (Barrows
v. The Massachusetts Medical Society, 12 Cushing's Rep., 402.)

     A case was decided in Pennsylvania, which arose on return to
a mandamus  directed to  the St.  Patrick Benevolent  Society, an
incorporated body,  commanding them  to restore John Binns to the
rights of  a member of said society. The question was whether the
by-law under which the expulsion was made, was valid - the by-law
providing  for   the  dismissal  of  members  for  vilifying  the
corporator. In  determining the question, the court considered it
necessary to  regard the  nature of the corporation, which was an
association having  for its  object, the  raising of a fund to be
applied to  the relief  of its  members in  case of  sickness and
misfortune,  and   to  the  assistance  of  distressed  Irishmen,
emigrating to  the United States. Each member paid a certain sum,
on  admittance   to  the   society,  and   likewise   an   annual
contribution; and  each member  was entitled, in case of sickness
or distress  occasioned by  unavoidable  accident,  to  pecuniary
assistance from  the funds  of the  society. The  corporation had
power to  make by-laws  for the  good order  and support  of  the
affairs of  the corporation,  provided the  said by-laws were not
repugnant to the instrument of incorporation; and by the charter,
any member  who was guilty of insulting or disrespectful behavior
to any  of the  society, should be fined for the first offense in
sum of  one dollar,  double that  sum for the second offense, and
for the third be expelled from the society.

     Tilghman, C.  J., in  giving the opinion of the court, after
stating that  the case  provided for in the charter was, from its
nature, confined to disrespectful behavior in the presence of the
party offended,  observed as follows: "My opinion will be founded
on the  great and single point, on which the cause turns. Is this
by-law necessary  for the  good government  and  support  of  the
affairs of  the corporation?  I cannot  think  that it is. I have
considered the  case, with  a mind  strongly disposed  to give  a
liberal construction to the power of making by-laws. Itis my wish
to give  all  necessary  powers  for  carrying  into  effect  the
benevolent purposes  of this  society, and many others which have
lately been  incorporated on similar principles. But these powers
must not  be constrained,  or the  societies,  instead  of  being
protected will be dissolved. The right of membership is valuable,
and not to be taken away without an authority fairly derived from
the charter,  or the  nature of  corporate bodies.  Every man who
becomes a member looks to the charter; in that he puts his faith,
and not  in the  uncertain will of a majority of the members. The
offense of  villifying a member, or a private quarrel, is totally
unconnected with  the affairs  of the  society, and therefore its
punishment cannot  be necessary  for the  good government  of the
corporation. So  far from  it, that it appears to me, that taking
cognizance of  such offenses  will have  the pernicious effect of
introducing private  feuds into  the bosom  of the  society,  and
interrupting the  transaction of  business. On mature reflection,
it appears  to me,  that without an express power in the charter,
no man  can be  disfranchised, unless  he has been guilty of some
offense which  either affects the interests or good government of
the corporation,  or is  indictable by  the law of the land. I am
therefore of the opinion that the cause returned by the president
of the  St. Patrick  Benevolent Society  for not  restoring  John
Binns to  the rights  of a member, is insufficient. (Commonwealth
v. St. Patrick Society, 2 Binney's Rep., 441.)

     A wide distinction is made between amotion from an office in
a  corporation,   and  the  disfranchisement  of  a  member.  The
enjoyment of  office is  not  for  the  private  benefit  of  the
corporator, but  an honorable distinction, which he holds for the
welfare of  the corporation.  But the  franchise of  a member  is
wholly for  his own  benefit, and  a  private  right;  for  these
reasons, in  the former  case he  may be  removed for  neglect or
duty, or  the commission  of any   infamous offense, although not
relating to  the corporation;  while in the latter case he cannot
be expelled  for  minor  corporate  offenses,  such  as  improper
behavior to  his fellow-corporators,  where not  so punishable by
the law  of the land, or the charter of the company. (Willcock on
Mun. Corporations, 271.)

     The old  rule appears to have been, that a mandamus will lie
to compel  an admission  or restoration  to no  place  or  office
unless it  have some  relation  to  the  public;  but  in  modern
practice, the  rule has been modified to a great extent, and now,
it seems,  the  value  of  the  matter,  or  the  degree  of  its
importance to the public policy, is not very scrupuously weighed.

     It has  therefore been  held that  it will lie to compel the
proper officers to admit to the freedom of the corporation any of
that class  of persons  who are possessed of an incorporate right
according  to  the  regulations  of  the  constitution,  such  as
apprentices who  have served  their time;  and to  take all  such
steps as may be necessary, preparatory to their admission.

     It has  also been  held to lie to trading companies to admit
as members  those entitled  to become  such (Angell  and Ames  on
Corporations, 432),  and to  restore  members  andtrustees  of  a
private corporation  for religious  and charitable  purposes, who
have been  illegally expelled.  (1 Serg.  & Rawle, 254; 2 Serg. &
Rawle, 141; 2 Binney's Rep., 448.)

     It if  be shown that the respondents have no longer power to
do the act commanded, the peremptory writ will not be allowed. It
was therefore held, that a railway company could not be compelled
by mandamus  to purchase land to make a branch railway, where the
compulsory powers  of the  company to purchase the necessary land
had expired  before the  writ issued.  (Regina v.  The London and
North Western Railway Company, 6 English Railway and Canal Cases,
479).

     In New  York it  has been  held that  as there is no special
limitation upon the remedy for mandamus, it may be brought within
the time  fixed for  the limitation of other similar or analogous
remedies. (The  People v.  The  Supervisors  of  Westchester,  12
Barb., 446.)

     It has,  however, been  said that  this rule seems liable to
objection in  many cases;  and that  the English  rule, that  the
party should  suffer no  unreasonable delay,  in the  opinion and
discretion of  the court,  is more  just and  equitable,  and  is
countenanced by American cases. (Redfield on Railways, 466.)

     While it  is a  fundamental principle that mandamus will not
lie where  there is  any other  specific adequate remedy, yet the
fact that  the corporations are liable to indictment for omitting
to do  that which  is sought to be compelled by mandamus,seems to
be entitled to no weight. (The People v. Mayor, &c., of New York,
10 Wend.  395.) For  it is  said that  those who obtain an act of
parliament for executing great public works, are bound to fulfill
all the  duties thereby  thrown upon them, and may be called upon
by the  courts, by  mandamus, to  do so.  And if  their breach of
contract causes a public nuisance also, that cannot dispense with
the  necessity  of  a  specific  performance  of  the  obligation
contracted by  them. (The  Queen v.  The Bristol Dock Co., 2 Eng.
Railway and Canal Cases, 437.)

     Abbott, C. J., in delivering the opinion of hte court in the
case of  Rex v.  The Severn  and Wye  Railway, 2  B. & Als., 646,
said: "If  an indictment  hadbeen a  remedy  equally  convenient,
beneficial and  effectual as  a mandamus,  I should  have been of
opinion that  we ought  not to grant the mandamus; but it is not,
for a  corporation cannot be compelled by indictment to reinstate
the road.  The court may, indeed, in case of conviction, impose a
fine,  and   that  fine  may  be  levied  by  distress;  but  the
corporation may  submit to the payment of the fine, and refuse to
reinstate the road."

     But where  the proper  remedy is in equity, and the right is
an equitable  right, and  one not enforceable at law, but only in
equity, as  in matters  of trust  and  confidence,  mandamus,  it
seems, will not lie.

     In the  case of  Regina v.  The Trustees  of the  Balby  and
Worksop Turnpike  Road, 16  Eng. L & Eq. Rep., 276, a rule `nisi'
had been  obtained on the part of J.F. Dawson as administrator of
the estate of J.T. Dawson, for a mandamus to command the trustees
of the Balby and Worksop Turnpike Road, which was in the province
of York,  to pay  the applicant  a year's  interest on a mortgage
debt of 500.

     The trustees  who acted  under a local act, 9 Geo. 4, C. 46,
had borrowed  500, at  4 percent interest, ofone W. Dawson, on a
mortgage deed  (drawn according to the form given in the turnpike
act, 3  Geo. 4,  C. 126.),  whichstated  that  the  trustees,  in
consideration of  the sum  of 500  paid to  the treasurer  by W.
Dawson, granted  to the said W. Dawson, "such a proportion of the
tolls arising  and to  arise on  the said  turnpike road, and the
toll-gates, chains,  and toll-houses  erected, or  to be erected,
for collecting  the same,  as the said sum of 500, shall bear to
the whole  sum now  or hereafter  to become  due and owing on the
security thereof, to have," &c., "the same proportion of the said
tolls, gates,  &c., with  the appurtenances,  unto  the  said  W.
Dawson, his executors," &c., for the residue of the term of years
for which  the tolls  were granted  by the  act, unless the 500,
with interest  at 4  percent,  were  sooner  repaid.  W.  Dawson,
assinged  the  mortgage  to  J.T.  Dawson,  who  afterwards  died
intestate, and  the relator  obtained letters  of administration,
and demanded payment of the interest.

     ONe of  the questions  raised, was  whether mandamus was the
proper remedy  to compel  the trustees to make payment. Crompton,
J., in announcing the judgment of the court said: "With regard to
the second  question, it  must be  taken since  the  decision  of
Pardoe v.  Price, that  such a  security as  the present gives no
legal right  to the mortgagee to demand the payment of either the
principal or  the interest.  It was  decided in  Pardoe v. Price,
that the  commissioners are merely trustees for the mortgagees as
to the  application of  the moneys which are to be applied in the
order directed  by the  act of  parliament; and that the relation
between the  commissioners and the mortgagees is that of trustees
and `cestui que trust.'

     "The statutory  provisions for  the application of the money
in the above case were substantially the same as those enacted by
the special  act in  the present case; and I feel myself bound by
the authority  of Pardoe v. Price (which isdirectly in point), to
hold that  the applicant  in the present case has no legal right,
but that  his remedy  is in equity. If so, the case seems to fall
within the  general rule  laid down in The King v. The Marquis of
Stafford, 3  Term Rep.,  646, where  it was held that no mandamus
will lie  where the right is merely equitable, and where there is
no legal  right. I  say the `general rule' because I find that in
Edwards v. Lowndes, 1 Ell. & Bl. 92; S.C., ante, p. 204, where an
action on  the case  had  been  brought  against  trustees  under
circumstances very  similar to  those in the present case, it was
said by  Lord Campbell,  in delivering  the judgment of the court
that, `the  proper remedy  in such  case would be inequity, or if
there isany  remedy at law, it might, under some circumstances be
by mandamus,  but  not  by  action.'  Taking  the  general  rule,
however, to  be as stated in The King v. The Marquis of Stafford,
and finding  no particular  circumstances to take the case out of
the general  rule, even if a mandamus can ever lie where there is
no legal  right, the  present facts  showing the  case to  be one
peculiarly for equitable relief. I must apply the general rule to
this case.  On both grounds, therefore, my opinion is against the
application."

     If, however,  the right  is a  legal right,  and there is no
legal remedy,  the party,  it seems,  is entitled  to  the  writ,
though he  might seek redress in chancery. The principle which is
said to  lie at  the foundation of application for this writ, and
the use  of it, is, that whenever a legal right exists, the party
is entitled  to a legal remedy, and when all others fail, the aid
of this  writ may  be invoked.  The fact  that the party may seek
redress in  chancery, may  and should  influence the court in the
exercise of  the discretion  which they  possess, in granting the
writ under  the facts  and circumstances  of the particular case,
but does  not affect  its right or jurisdiction to grant it. (The
People v. Mayor, &c., of New York, 10 Wend. 395.)

     It however seems, that mandamus will sometimes lie, although
the application  concerns a  trust, and  more private  endowment.
Therefore, when,  in purusance  of the  will of a private person,
his executor, by deed, conveyed lands to trustees for the benefit
of the  poor of  a parish; and the deed provided that a chest, of
which there  should be  three locks and three keys, should remain
in the  parish church,  for keeping  all writings, accounts, &c.,
and the trust moneys remaining unexpended; one of such keys to be
kept by  the receiver; the second by the parson; the third by the
church-wardens. It  was held that a mandamus lay to the trustees,
to compel the delivery of one key to the church-wardens. (Reg. v.
Ottery St. Mary,3 Gale & D. 382; 4 Ad. & E. (N.S.) 157.


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Halsey H. Moses