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 œ500.
The trustees who acted under a local act, 9 Geo. 4, C. 46,
had borrowed œ500, 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 œ500 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 œ500, 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 œ500,
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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