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partment, a mandamus may be issued to com pel him to do such duty, if there is no other adequate remedy. A mandamus may issue to compel the Treasurer to pay a judgment of the

rich v. Guthrie, 17 How. 284, 305. McBride claimed a patent for land But upon a writ of error to the Su- under a right of pre-emption. The preme Court of the Territory of New regular proceedings had taken place Mexico it was held that in case of a in the Department of the Interior; disputed election to a municipal the right of the applicant had been office, mandamus may issue to com- affirmed; the patent had been made pel the recognition by another mu- out in the Land Office, signed by the nicipal officer of the de facto officer, President, sealed with the Land Ofwhose title is disputed, until the fice seal, countersigned by the Rerights of the parties can be deter- corder of the Land Office, recorded mined on quo warranto. In re Del- in the proper book, and transmitted gado, 140 U. S. 586, 590. See also to the local land officers for delivery; U. S. ex rel. International Contract- but delivery had been refused, be ing Co. v. Lamont, 155 U. S. 303; cause instructions had been received U. S. ex rel. Mutual Messenger Co. from the Commissioner to return the v. Wright, 15 App. D. C. 463. patent. Upon an application for a

4 Stockton & Stokes, mail contract- mandamus, the defense was that it ors, had certain claims against the had been discovered that the land government for extra services, which belonged to a town site. The court they insisted should be granted in held that this defense was insuffitheir accounts, and a controversy cient: that the title had passed to arose as to this between them and the applicant; that he was entitled the Post-office Department. Con- to the patent subject to any equity gress passed an act for their relief; which other parties might have to by which the Solicitor of the Treas- the land, or subject to a proceeding ury was authorized and directed to to set the patent aside; and that the settle and adjust their claims, and duty of the Commissioner and of the make them such allowances as upon Secretary of the Interior had become full examination of all the evidence a mere ministerial duty to deliver might seem to be equitable and right; the instrument. A mandamus was and the Postmaster-General was di- granted accordingly. U. S. v. Schurz, rected to credit them with whatever 102 U. S. 878. sums the Solicitor should decide to Upon an application for a patent be due them. The Solicitor, after in. in the case of interference, the Comvestigation, made his report, and missioner of Patents had decided in stated the sums due to Stockton & favor of Gill, and adjudged that a Stokes on the claims made by them. patent should issue to his assigns acbut the Postmaster-General refused cordingly. An appeal was taken to to give them credit as directed by the the Secretary of the Interior, and he law. This, the court held he could reversed the decision of the Commis. be compelled to do by a mandamus, sioner. The latter for that reason because it was simply a ministerial refused to issue a patent. Upon an duty to be performed, and not an application for a mandamus, the Suofficial act requiring any exercise of preme Court held that no appeal lay judgment or discretion. Kendall v. from the decision of the CommisU. S. ex rel. Stokes, 12 Pet. 524, 613, sioner to the Secretary of the Inte614.

rior; that "the latter officer had no

Court of Claims. No mandamus will issue to enforce specific performance of a contract with the United States which has been repudiated by an act of Congress.

The writ of mandamus issues to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. There are cases in which the writ of mandamus will not be issued to compel the performance of even a purely ministerial act. “In a case, for instance, where the intention of the officer, though acting within the scope of his duty, had been frustrated by a clerical mistake.” A mandamus will not issue in a case of doubtful right. A mandamus will not issue in a case where the relator has another adequate remedy, and the grant of the writ may affect the rights of perjurisdiction in the matter;" that the money from the Treasury of the patent ought to be issued to Gill's United States to be applied in satisassigns in accordance with the de- faction of disputed or controverted cision of the Commissioner. A man- claims against the United States." damus to compel the issue of such U. S. ex rel. Goodrich v. Guthrie, 17 a patent was granted accordingly. How. 284, 303, per Daniel, J. In an Butterworth v. Hoe, 112 U. S. 50. English case, Lord Chief Justice The Commissioner of Pensions had Denman said: “If, as has been sugrefused to grant an application for gested, it should on any occasion be an increase of a pension. The appli- unsafe with reference to the public cant appealed to the Secretary of service to make a payment of this the Interior, who overruled the de- kind, the fact may be stated on recision of the Commissioner, and held turn to the mandamus. There might that the applicant was entitled to an perhaps be occasions on which the increase of his pension. The Com- Lords Commissioners would be bound missioner refused to carry out the to apply the money to particular Secretary's decision and to grant the purposes of a more pressing nature.” increase requested. It was held that The King v. The Lord Com’rs of the the Commissioner could be com- Treasury, 4 Ad. & El. 286, 295; cited pelled by a mandamus to grant the by Lamar, J., in U. S. ex rel. Redfield increase of the pension for which the v. Windom. 137 U. S. 636, 644. application had been made, in ac- 6 U. S. ex rel. Levey v. Stockslager, cordance with the decision of the 129 U. S. 470, 478. Secretary of the Interior. U. S. ex 7 U. S. ex rel. Boynton v. Blaine, rel. Dunlap v. Black, 128 U. S. 40, 50, 139 U. S. 306, 319; Brownsville v. 52, per Bradley, J. See also U. S. ex Loague, 129 U. S. 493, 501. rel. Hufty v. Trimble, 14 App. D. C. 8 U. S. ex rel. Redfield v. Windom, 414.

137 U. S. 636, 644, per Lamar, J., cit5 Roberts v. U. S., 176 U. S. 221. ing U. S. v. Schurz, 102 U. S. 378. There is a dictum by Mr. Justice 9U. S. ex rel. Redfield v. Windom, Daniel to the effect that no man- 137 U. S. 636, 644, per Lamar, J., citdamus will issue “to command the ing Life & Fire Ins. Co. v. Wilson's withdrawal of a sum or sums of Heirs, 8 Pet. 291, 302.

sons who are not parties to the proceeding, or where it will be attended with manifest hardship and difficulties.10 It has been held that in a case where the application is not made by a person claiming a beneficial interest in sustaining or defeating a bill, no court should interfere by mandamus to correct the record of a legislative body," and that the Governor of a State cannot be compelled by mandamus to return a fugitive from labor or justice."

§ 364. Practice on application for mandamus.- In the Supreme Court of the United States, the usual practice on an application for a mandamus is to issue a rule addressed to the judge or judges of the lower court calling on him to show cause why the writ should not issue against him. The rule may also be addressed to the lower court itself.? The rule is only issued upon a petition verified by affidavit, showing an apparent right to the writ. The party at whose relation the writ is issued must show an interest in the relief sought;' and should allege his citizenship. He is not obliged to obtain the intervention of the Attorney-General or a district attorney. It is the safer practice to move ex parte for leave to file the petition. The return cannot be amended on the motion of a person to whom the writ is not addressed.8

It has been held that, in a Circuit Court of the United States, upon an application based upon a statute of the United States, the State practice should not be followed, but that the practice

5

10 U. S. ex rel. Redfield v. Windom, Postmaster-General v. Trigg, 11 Pet. 137 U. S. 636, 634, per Lamar, J., cit. 173. ing People v. Forquer, Breese (1 Ill.), 4 Ex parte Fleming, 2 Wall. 759; 68 (2d ed. 104); Van Rensselaer v. Clough v. Curtis, 134 U. S. 361; PeoSheriff of Albany, 1 Cowen (N. Y.), ple v. Colorado Cent. R. Co., 42 Fed. 501, 512; Oaks v. Hill, 8 Pick. (Mass.) R. 638. 46. See U. S. v. Com'rs, 5 Wall. 563. People v. Colorado Cent. R. Co.,

11 Clough v. Curtis, 134 U. S. 361. 42 Fed. R. 638, 641.

12 Kentucky v. Dennison, 24 How. 6 U. P. R. Co. r. Hall, 91 U. S. 343; 61.

S. C. as Hall v. Union P. R. Co., 3 § 364. 1 Postmaster-General Dill. 515; U. S. v. U. P. R. Co., 91 Trigg, 11 Pet. 173; Ex parte Poultney U. S. 72. v. La Fayette, 12 Pet. 472; Ex parte 7 Georgia v. Grant, 6 Wall. 241; Schollenberger, 96 U. S. 369.

Farmers' L. & Tr. Co., Petitioner, 129 2 Hollon Parker, Petitioner, 131 U.S. U. S. 206. 221.

8 Ex parte Harmon, 131 U. S., Ap3 Poultney v. La Fayette, 12 Pet. pendix, lxvii. 472; Ex parte Taylor, 14 How, 3;

v.

remains substantially as at common law.' It is, however, safer to comply also with the regulations of the State practice.10 Where mandamus is sought to compel the payment of a judgment against a municipal corporation, performance should be first made of all conditions precedent required by State statutes, such as the issue of an execution and its return unsatisfied," and service of the judgment upon such officers as the State statute requires.2 It seems that a formal demand for payment of the judgment is, except when the statutes of the State require it, not a condition precedent to the issue of the writ.13 It has been held that a mandamus will not issue to enforce a judgment after the judgment has become dormant according to the State law through the lapse of time, and' no execution can issue thereunder.14 A State statute forbidding a mandamus to enforce a judgment against a municipal corporation has been held not to deprive the Federal court of jurisdiction.15 The application for a mandamus should be by a verified petition, which may be also termed an information or complaint. 16 Such petition should state the citizenship of the petitioner. 17 A peremptory writ should not be issued without notice of the application.18 The alternative writ should state the averments of title or right which form the inducement of the writ, and

166;

9U. S. v. U. P. R. Co., 2 Dill. 527. McAleer v. Clay County, 42 Fed. R.

10 Wisdom v. Memphis, 2 Flip. 285; 665; Stewart v. Justices of St. Clair Stewart v. Justices of St. Clair Co. Co. Court, 47 Fed. R. 482. But see Court, 47 Fed. R. 482, 484, quoted Amy v. Galena, 7 Fed. R. 163. supra, $ 361, note 8.

15 Hart v. New Orleans, 12 Fed. R. 11 Riggs v. Johnson County, 6 Wall. R. 292; New Orleans v. Morris, 3

Weber v. Lee County, 6 Wall. Woods, 103, 115. *A mandamus to 210; Lansing v. County Treasurer, 1 collect a tax for the payment of a Dill. 522; Laird v. Mayor of De Soto, judgment is process in execution, 25 Fed. R. 76.

and nobody heretofore has ever ques12 Moran v. Elizabeth, 9 Fed. R. 72. tioned the power of a court to con

13 U. S. v. Elizabeth, 9 Rep. 232; trol its own process.' Memphis v. U. S. v. Auditors of Brooklyn, 8 Fed. Brown, 97 U. S. 300, per Story, J. R. 473; U. S. v. New Orleans, 17 Fed. 16 Poultney F. Lafayette, 12 Pet. R. 483. The filing of a certificate of 472; U. S. v. Union P. R. Co., 2 Dill. the judgment with a city clerk in 527. See High on Extr. Rem., Part Montana was held to be a sufficient I, ch. viii. demand. Mayor, etc. of Helena v. 17 People v. Colorado Cent. R. Co., U. S. ex rel. Helena Waterworks (C. 42 Fed. R. 638, 641. C. A.), 104 Fed. R. 113.

18 Fairbanks v. Amoskeag Nat. 14 U. 8. v. Oswego, 28 Fed. R. 55; Bank, 30 Fed. R. 602. Brockway v. Oswego, 40 Fed. R. 612;

should be in conformity with the legal obligation of the respondent."9 “If a prima facie case is presented warranting the relief prayed, the alternative writ issues commanding the respondent forth with to do the act required, or to show cause why it should not be done. After the granting of the writ three courses are open to the respondent: first, he may do the thing required; second, he may in most of the States demur; and third, he may make return.” 20 By the common law the return was not traversable.21 By the statute 9 Anne, ch. 20, a traverse was allowed to the return to a writ of mandamus in proceedings against persons claiming to hold public offices instituted by any person to obtain admission or restoration to office or to the franchises of being burgesses or freemen. A peremptory writ of mandamus will rarely if ever be issued without notice. The writ and other proceedings upon an application for a mandamus to compel the levy of a tax under a judgment against a public corporation should ordinarily be addressed by name to the officers whose duty it is to act, and also describe them in their official capacity. A mandamus is sufficient when merely addressed to a public officer by his official title without naming him,24 although the corporation has another title under which its charter gives it power to be sued.25 The writ may also be addressed to the corporation itself, as in the case of a county.26 When a State statute provides that service of process against a public board may be made upon its clerk, service of the writ upon that clerk will be sufficient to justify punishment of the individual members of the board for contempt if they disobey. 27 Amendments of the proceedings including the return may be allowed,28 but not such an

19 People v. Colorado Cent. R. Co., to the form of the writ, see State v. 42 Fed. R. 638, 644.

Sullivan, 50 Fed. R. 593. 20 High on Extr. Rem., $ 459.

25 The Mayor v. Lord, 9 Wall. 409. 21 Enfield v. Hills, 2 Lev. 236, 238; 26 Commissioners v. Sellew, 99 U.S. Lunt v. Davison, 104 Mass. 498; High 624. on Extr. Rem., 8 457.

27 Commissioners v. Sellew, 99 U. S. 22 Fairbanks v. Amoskeag Nat. 624. But see U. S. v. Labette County, Bank, 30 Fed. R. 602.

7 Fed. R. 318. 23 Thompson v. U. S., 103 U. S. 480, 28 Supervisors v. Durant, 9 Wall. 484; The Mayor v. Lord, 9 Wall. 409. 736; U. S. v. Union Pac. R. Co., 4

24 Thompson v. U. S., 103 U. S. 480; Dill. 479; s. c. as Union Pac. R. Co. The Mayor v. Lord, 9 Wall. 409. As v. Hall, 91 U. S. 343.

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