partment, a mandamus may be issued to compel 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. But upon a writ of error to the Supreme Court of the Territory of New Mexico it was held that in case of a disputed election to a municipal office, mandamus may issue to compel the recognition by another municipal officer of the de facto officer, whose title is disputed, until the rights of the parties can be determined on quo warranto. In re Delgado, 140 U. S. 586, 590. See also U. S. ex rel. International Contracting Co. v. Lamont, 155 U. S. 303; U. S. ex rel. Mutual Messenger Co. v. Wright, 15 App. D. C. 463. 4 Stockton & Stokes, mail contractors, had certain claims against the government for extra services, which they insisted should be granted in their accounts, and a controversy arose as to this between them and the Post-office Department. Congress passed an act for their relief; by which the Solicitor of the Treasury was authorized and directed to settle and adjust their claims, and make them such allowances as upon full examination of all the evidence might seem to be equitable and right; and the Postmaster-General was directed to credit them with whatever sums the Solicitor should decide to be due them. The Solicitor, after investigation, made his report, and stated the sums due to Stockton & Stokes on the claims made by them. but the Postmaster-General refused to give them credit as directed by the law. This, the court held he could be compelled to do by a mandamus, because it was simply a ministerial duty to be performed, and not an official act requiring any exercise of judgment or discretion. Kendall v. U. S. ex rel. Stokes, 12 Pet. 524, 613, 614. McBride claimed a patent for land under a right of pre-emption. The regular proceedings had taken place in the Department of the Interior; the right of the applicant had been affirmed; the patent had been made out in the Land Office, signed by the President, sealed with the Land Office seal, countersigned by the Recorder of the Land Office, recorded in the proper book, and transmitted to the local land officers for delivery; but delivery had been refused, because instructions had been received from the Commissioner to return the patent. Upon an application for a mandamus, the defense was that it had been discovered that the land belonged to a town site. The court held that this defense was insufficient: that the title had passed to the applicant; that he was entitled to the patent subject to any equity which other parties might have to the land, or subject to a proceeding to set the patent aside; and that the duty of the Commissioner and of the Secretary of the Interior had become a mere ministerial duty to deliver the instrument. A mandamus was granted accordingly. U. S. v. Schurz, 102 U. S. 878. Upon an application for a patent in the case of interference, the Commissioner of Patents had decided in favor of Gill, and adjudged that a patent should issue to his assigns accordingly. An appeal was taken to the Secretary of the Interior, and he reversed the decision of the Commissioner. The latter for that reason refused to issue a patent. Upon an application for a mandamus, the Supreme Court held that no appeal lay from the decision of the Commissioner to the Secretary of the Interior; 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 per jurisdiction in the matter;" that the patent ought to be issued to Gill's assigns in accordance with the decision of the Commissioner. A mandamus to compel the issue of such a patent was granted accordingly. Butterworth v. Hoe, 112 U. S. 50. The Commissioner of Pensions had refused to grant an application for an increase of a pension. The applicant appealed to the Secretary of the Interior, who overruled the decision of the Commissioner, and held that the applicant was entitled to an increase of his pension. The Commissioner refused to carry out the Secretary's decision and to grant the increase requested. It was held that the Commissioner could be compelled by a mandamus to grant the increase of the pension for which the application had been made, in accordance with the decision of the Secretary of the Interior. U. S. ex rel. Dunlap v. Black, 128 U. S. 40, 50, 52, per Bradley, J. See also U. S. ex rel. Hufty v. Trimble, 14 App. D. C. 414. 5 Roberts v. U. S., 176 U. S. 221. There is a dictum by Mr. Justice Daniel to the effect that no mandamus will issue "to command the withdrawal of a sum or sums of money from the Treasury of the United States to be applied in satisfaction of disputed or controverted claims against the United States." U. S. ex rel. Goodrich v. Guthrie, 17 How. 284, 303, per Daniel, J. In an English case, Lord Chief Justice Denman said: "If, as has been suggested, it should on any occasion be unsafe with reference to the public service to make a payment of this kind, the fact may be stated on return to the mandamus. There might perhaps be occasions on which the Lords Commissioners would be bound to apply the money to particular purposes of a more pressing nature." The King v. The Lord Com'rs of the Treasury, 4 Ad. & El. 286, 295; cited by Lamar, J., in U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 644. 6 U. S. ex rel. Levey v. Stockslager, 129 U. S. 470, 478. 7 U. S. ex rel. Boynton v. Blaine, 139 U. S. 306, 319; Brownsville v. Loague, 129 U. S. 493, 501. 8 U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 644, per Lamar, J., citing U. S. v. Schurz, 102 U. S. 378. 9 U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 644, per Lamar, J., citing Life & Fire Ins. Co. v. Wilson's Heirs, 8 Pet. 291, 302. sons who are not parties to the proceeding, or where it will be attended with manifest hardship and difficulties. 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.12 § 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. return cannot be amended on the motion of a person to whom the writ is not addressed.8 The 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 10 U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 634, per Lamar, J., citing People v. Forquer, Breese (1 Ill.), 68 (2d ed. 104); Van Rensselaer v. Sheriff of Albany, 1 Cowen (N. Y.), 501, 512; Oaks v. Hill, 8 Pick. (Mass.) 46. See U. S. v. Com'rs, 5 Wall. 563. 11 Clough v. Curtis, 134 U. S. 361. 12 Kentucky v. Dennison, 24 How. 61. Postmaster-General v. Trigg, 11 Pet. 173. 4 Ex parte Fleming, 2 Wall. 759; Clough v. Curtis, 134 U. S. 361; People v. Colorado Cent. R. Co., 42 Fed. R. 638. People v. Colorado Cent. R. Co., 42 Fed. R. 638, 641. 6 U. P. R. Co. v. Hall, 91 U. S. 343; S. C. as Hall v. Union P. R. Co., 3 Dill. 515; U. S. v. U. P. R. Co., 91 U. S. 72. 7 Georgia v. Grant, 6 Wall. 241; Farmers' L. & Tr. Co., Petitioner, 129 2 Hollon Parker, Petitioner, 131 U.S. U. S. 206. 221. 3 Poultney v. La Fayette, 12 Pet. 472; Ex parte Taylor, 14 How. 3; 8 Ex parte Harmon, 131 U. S., Appendix, lxvii. 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 judg ment 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. 12 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. 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.1 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."7 A peremptory writ should not be issued without notice of the application. The alternative writ should state the averments of title or right which form the inducement of the writ, and 18 14 9 U. S. v. U. P. R. Co., 2 Dill. 527. 10 Wisdom v. Memphis, 2 Flip. 285; Stewart v. Justices of St. Clair Co. Court, 47 Fed. R. 482, 484, quoted supra, § 361, note 8. 11 Riggs v. Johnson County, 6 Wall. 166; Weber v. Lee County, 6 Wall. 210; Lansing v. County Treasurer, 1 Dill. 522; Laird v. Mayor of De Soto, 25 Fed. R. 76. 12 Moran v. Elizabeth, 9 Fed. R. 72. 13 U. S. v. Elizabeth, 9 Rep. 232; U. S. v. Auditors of Brooklyn, 8 Fed. R. 473; U. S. v. New Orleans, 17 Fed. R. 483. The filing of a certificate of the judgment with a city clerk in Montana was held to be a sufficient demand. Mayor, etc. of Helena v. U. S. ex rel. Helena Waterworks (C. C. A.), 104 Fed. R. 113. 14 U. S. v. Oswego, 28 Fed. R. 55; Brockway v. Oswego, 40 Fed. R. 612; McAleer v. Clay County, 42 Fed. R. 15 Hart v. New Orleans, 12 Fed. R. R. 292; New Orleans v. Morris, 3 Woods, 103, 115. "A mandamus to collect a tax for the payment of a judgment is process in execution, and nobody heretofore has ever questioned the power of a court to control its own process." Memphis v. Brown, 97 U. S. 300, per Story, J. 16 Poultney v. Lafayette, 12 Pet. 472; U. S. v. Union P. R. Co., 2 Dill. 527. See High on Extr. Rem., Part I, ch. viii. 17 People v. Colorado Cent. R. Co., 42 Fed. R. 638, 641. 18 Fairbanks v. Amoskeag Nat. Bank, 30 Fed. R. 602. should be in conformity with the legal obligation of the respondent.19 "If a prima facie case is presented warranting the relief prayed, the alternative writ issues commanding the respondent forthwith 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." 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.22 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, 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 24 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. 21 Enfield v. Hills, 2 Lev. 236, 238; Lunt v. Davison, 104 Mass. 498; High on Extr. Rem., § 457. 23 The Mayor v. Lord, 9 Wall. 409. 26 Commissioners v. Sellew, 99 U. S. 624. 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. 23 Thompson v. U. S., 103 U. S. 480, 484; The Mayor v. Lord, 9 Wall. 409. 24 Thompson v. U. S., 103 U. S. 480; The Mayor v. Lord, 9 Wall. 409. As 7 Fed. R. 318. 28 Supervisors v. Durant, 9 Wall. 736; U. S. v. Union Pac. R. Co., 4 Dill. 479; s. c. as Union Pac. R. Co. v. Hall, 91 U. S. 343. |