by statute, the writ only issues from a superior to an inferior tribunal, and the usual practice is to present a petition setting forth the specific relief demanded, the right of the relator thereto, and the duty of the defendant to do the act sought to be enforced, verified by affidavit of the relator. Upon this petition, a rule is generally issued to the defendant to show cause why a mandamus should not be granted, although in certain cases, when the right is clear, an alternative mandamus should be applied for, or will issue in the first instance. The test by which to determine whether an alternative mandamus may be applied for in the first instance is whether the facts are in dispute. If not, an alternative writ may be applied for in the first instance. If they are, a rule to show cause will issue. Lutterloh v. Cumberland County, 65 N. C. 403. There are, as we have noticed, two classes of writs, alternative and peremptory. The alternative writ is one which commands the party to do the act required, or show to the courts a reasonable excuse for not doing it. And the result of a rule to show cause, or an alternative mandamus, are about the same, as in either case, if the relator shows a legal right to have the act done, and the defendant does not show a valid excuse for not doing it, a peremptory writ will issue directing the defendant to do the act in question, and to which the defendant can only return a certificate of compliance, or that the writ improvidently issued (State v. County Judge, 12 Iowa, 237; Weber v. Zimmermann, 23 Md. 45), or that it commands the doing of an illegal act (Everitt v. The People, 1 Caines [N. Y.], 8), or one that is impossible. Regina v. Ambergate, 1 El. & Bl. 381; Regina v. London, etc., R. R. Co., 16 Add. & El. (N. S.) 884.

In such cases, the remedy is by motion to quash the writ or vacate the rule granting the motion, and to set aside the writ. Everitt v. People, 1 Caines (N. Y.), 8. It may be observed that if a specific remedy is provided by statute, such remedy is usually exclusive of mandamus. Ottawa v. People, 48 Ill. 233.

A writ of alternative mandamus serves the purpose of a declaration or complaint in an ordinary action, and the defendant must answer it and respond to and meet all the allegations therein (Gorgas v. Blackburn, 14 Ohio, 252), and set forth facts sufficient to excuse performance of the act by him, or a peremptory mandamus will issue. Society, etc., v. Com., 52 Penn. St. 125; State v. Avery, 14 Wis. 122; People v. White, 11 Abb. Pr. (N. Y.) 168. See, also, as to when the allegations in the writ will be taken as true, State v. Cincinnati, 18 Ohio St. 262; People v. Burrows, 27 Barb. 89.

§ 2. Who may apply for. In order to entitle a party to the benefit of the writ it must, as we have seen, clearly appear by a motion based upon an affidavit, or by a duly verified petition, complaint or other pleading, that the defendant refuses to perform a duty, in the performance of which the plaintiff, complainant or relator, is interested, and by the non-performance of which he would be injured. People v. Thompson, 25 Barb. 73; People v. Head, 25 Ill. 325; People v. Hil biard, 29 id. 418; People v. Supervisors, 64 N. Y. (19 Sick.) 600; People v. Collins, 19 Wend. 65; Silverthorne v. Warren R. R. Co., 33 N. J. 372; Linden v. Case, 46 Cal. 171; People v. Green, 29 Mich. 121. See, also, People v. Green, 58 N. Y. 295. It should also appear to the court to which the application is made that there is no other adequate remedy (King v. Water Works Co., 6 Ad. & El. 355; People v. Supervisors, etc., 12 Barb. 27; Tarver v. Commissioners' Court, 17 Ala. 527), that the applicant has a clear right to have the act done (Fitch v. McDiarmid, 26 Ark. 482; Arrington v. Van Houton, 44 Ala. 284; Reading v. Commonwealth, 11 Penn. St. 196; Com. v. Pittsburgh, 34 id. 496; Draper v. Noteware, 7 Cal. 276; Napier v. Poe, 12 Ga. 170), and that it is the duty of the defendant to do it. People ex rel. Stevens v. Hayt, 66 N. Y. (21 Sick.) 606; People v; Board of Police, 35 Barb. 535; McDougall v. Bell, 4 Cal. 177. State v. Warren, etc., Co., 32 N. J. Law, 439. A private person may justly claim the benefit of the writ in all cases where the duty is not due to the government as such exclusively, without the intervention of the government officer or prosecutor. Union Pacific R. Co. v. Hall, 91 U. S. 343; Hall v. Union Pacific R. Co., 3 Dill. (C. C.) 515; State v. County Judge, 7 Iowa, 186; State v. Bailey, id. 390; Farrell v. King, 41 Conn. 448.

§ 3. When granted. It is evident that the writ should be granted by the court whenever there is a concurrence of the facts heretofore stated. Thus a mandamus will be granted where there is no other clear legal mode of securing the rights which the complainant seeks, or other adequate remedy. Commonwealth v. Pittsburgh, 34 Penn. St. 496; Peck v. Booth, 42 Conn. 270. But it is never granted, as we shall hereafter more fully notice, where there is a discretion, in the person or officer, to control the free exercise of such discretion. v. Van Ness, 15 Fla. 317; Ex parte Harris, 52 Ala. 87.

State

§ 4. Officers of superior courts. It is evident on general principles that the officers of superior courts may be compelled by mandamus to perform their duty where the rights of parties are or may be prejudiced by the refusal. Their duties are usually, if not always, ministerial in their nature, and the courts will always lend their aid by

way of mandamus in such cases, if there is no other plain, speedy and adequate remedy.

Thus, the better doctrine would seem to be that although a judg ment creditor might apply to the court for an order against its clerk to issue an execution on a judgment duly entered, or sue the clerk and his sureties on his official bond, for a refusal so to do, still on the refusal of the court to act in the premises, or in case the remedy by other means would be imperfect or inadequate, the judgment creditor should have his remedy by mandamus. Goodwin v. Glazier, 10 Cal. 333; Fulton v. Hanna, 40 id. 278. See, also, People v. Loucks, 28 id. 68; Attorney-General v. Lum, 2 Wis. 507.

§ 5. Inferior courts and officers. Mandamus is frequently an appropriate remedy against inferior courts, judges and officers, to compel the performance of duties. Thus the supreme court of the United States may issue a mandamus to the circuit court, commanding it to sign a bill of exceptions (Ex parte Crane, 5 Pet. 189); to make up a record and render judgment thereon so that a writ of error may be brought. Ex parte Bradstreet, 7 id. 634.

And in all cases where the judges of an inferior court improperly neglect or refuse to perform a plain ministerial duty, and there is no other adequate remedy, a mandamus will issue from a superior court to compel it. Thus, it will issue to compel them to hear a motion for an attachment for a contempt, in disregarding an injunction, but not to control their discretion (Merced Mining Co. v. Fremont, 7 Cal. 130); to reinstate an action improperly abated (Matter of Nabor, 7 Ala. 459); to compel an inferior court to proceed to the trial of a cause which has been improperly continued (Dixon v. Feild, 10 Ark. 243); to compel the setting aside of a judgment improperly rendered, by default (People v. Bacon, 18 Mich. 247); to reinstate an attorney disbarred by a court for a cause over which it had no jurisdiction (State v. Kirke, 12 Fla. 278; Ex parte Bradley, 7 Wall. 364; Withers v. State, 36 Ala. 252; People v. Justices, 1 Johns. Cas. 181); to compel the removal of a cause into the United States courts, where the facts require it (Hopper v. Kalkman, 17 Cal. 517); to compel a judge to order a change of venue in a proper case (State v. McArthur, 13 Wis. 407; Ex parte Chase, 43 Ala. 303); to compel a clerk to deliver a transcript on a writ of error where he illegally refuses so to do (Davis v. Carter, 18 Tex. 400); to compel a referee to settle exceptions (People v. Baker, 35 Barb. 105); to compel a court to restore a cause improperly stricken from the docket (Ex parte Lowe, 20 Ala. 330); to compel the signing of bills of exceptions (People v. Judges, 1 Caines [N. Y.], 511; State v. Hall, 3 Coldw. [Tenn.] 255; Porter v. Harris, 4 Call. [Va.] 485; VOL. IV.-46

Douglass v. Loomis, 5 W. Va. 542); to compel a court to proceed to hear a case when it has improperly refused to do so (Castello v. Cir cuit Court, 28 Mo. 259); to compel the entry of a judgment by confession (1 id. 116); to compel the entry of a judgment on a referee's report (Russell v. Elliott, 2 Cal. 245); or upon a verdict (Ex parte Cox, 10 Mo. 742); to compel the issue of process to which a party is clearly entitled (Stafford v. Union Bank, 17 How. [U. S.] 275); to compel an inferior court to re-hear a cause sent back for that purpose from an appellate court (Cowan v. Doddridge, 22 Gratt. [Va.] 458); to receive a verdict improperly refused (State v. Knight, 46 Mo. 83; Munkers v. Watson, 9 Kan. 668); to recognize a duly admitted attorney (1 Col. T. 352); to compel the setting aside of a writ of prohibition unlawfully granted (Ex parte Keeling, 50 Ala. 474); and generally to compel the performance of any merely ministerial or other plain duty of the inferior court or its officer (United States v. Peters, 5 Cranch, 115; Insurance Co. v. Wilson, 8 Pet. [U. S.] 291; Ex parte Milwaukee R. Co., 5 Wall. [U. S.] 825); when the party has no adequate remedy by appeal or otherwise, and the court or officer is vested with no discretion, or there is a manifest abuse of discretion. Manor v. McCall, 5 Ga. 522; Ex parte Harris, 52 Ala. 87; State v. Police Jury, 29 La. Ann. 146; Clark v. Minnis, 50 Cal. 509; State v. Common Pleas, 38 N. J. Law, 182, and cases above cited.

So a mandamus is an appropriate remedy against a judge of a surrogate's court, in case of a refusal to allow an appeal from his court to which a party applying for the remedy may be entitled (Gresham v. Pyron, 17 Ga. 263); or for a refusal to enter up a judgment in such court, to which the party is entitled (Williams v. Saunders, 5 Coldw. [Tenn.] 60); or for a refusal of the judge to transfer to another court a cause in which he is personally interested. State v. Castleberry, 23 Ala. 85.

And a mandamus will issue to compel a justice of the peace to grant an appeal in a proper case (Ex parte Martin, 5 Ark. 371); and to compel a justice to assess damages in favor of the defendant in replevin in case of a discontinuance of the suit (People v. Tripp, 15 Mich. 518); and generally to compel the performance of a plain duty. Forman v. Murphy, 3 N. J. Law, 1024; Terhune v. Barcalow, 11 id. 38; People v. Willis, 5 Abb. Pr. 205.

The general doctrine in such cases is that a mandamus will not be allowed to interfere with the discretion of a court or officer, but will compel the exercise of it, in case this duty is clearly imposed. People v. Sexton, 37 Cal. 532; People v. Dowling, 55 Barb. 197; State v.

Judge, 26 La. Ann. 116; People v. Judge, 24 Mich. 408; Mayor v. Rainwater, 47 Miss. 547; Weeden v. Town Council, 9 R. I. 128.

§ 6. Boards of public officers. It is a doctrine universally recognized that boards of public officers may in appropriate cases be compelled by mandamus to perform a plain legal duty. Thus, it will lie to compel the board of education of a city, on behalf of a father, to admit his child to the public schools (People v. Board of Education of Detroit, 18 Mich. 400); to compel a board of police to discharge their duty as public officers, in levying a tax required by law, to pay a debt of the county, where the law has furnished no other specific remedy (Carroll v. Board of Police, 28 Miss. 38); to compel a board, having judicial and ministerial powers, to execute the decisions of a court, when the law imposes this duty (People v. Schenectady, 35 Barb. 408); to compel a contracting board to accept a bid for keeping in repair a public work, in a case where the duty was manifest, and the objection was captious and frivolous (People v. Contracting Board, 46 Barb. 254); to compel the commissioners of the poor to discharge duties imposed upon them by an act of the assembly of the State (Commissioners v. Lynah, 2 McCord [S. C.], 170); to compel the managers of a cemetery to permit the burial of persons entitled to sepulture therein (Mount Moriah Cemetery Asso. v. Commonwealth, 81 Penn. St. 235; S. C., 22 Am. Rep. 743); to compel the commissioners of highways to lay out and open a highway where the law imposes this duty upon them (Treat v. Middletown, 8 Conn. 243), or where it becomes their duty to open it after such road is laid out by a competent court (People v. Champion, 16 Johns. 61); to compel commissioners, appointed for that purpose, to appraise damages for land taken under the right of eminent domain (Trustees v. Johnson, 2 Ind. 219; Ex parte Jennings, 6 Cow. 518; Dodge v. County Commissioners, 3 Metc. 380; Carpenter v. Bristol, 21 Pick. 258); to compel the officers, designated for that purpose, to issue the bonds of a town, city or county, which under the provisions of the statute have been voted for some particular purpose, and to levy a tax for the purpose of paying interest upon such bonds lawfully issued (Knox County v. Aspinwall, 24 How. [U.S.] 376; Morton v. Comptroller General, 4 S. C. 430); to compel a board to contract, to accept the bid of the lowest bidder, where there is no discretion as to the matter, or the sufficiency of bonds which may be required. People v. Contracting Board, 46 Barb. 254; Farman v. Commissioners, 21 Ohio St. 311.

But, as we have before observed, where there is a discretion vested in such bodies, which is generally the case, no interference with such discretion, if reasonably exercised, will be made by the writ of mandamus. The Press Association v. Nichols, 45 Vt. 7; People v. Con