tracting Board, 33 N. Y. (6 Tiff.) 382; State v. Board of Education, 24 Wis. 683. See, also, People v. Croton Aqueduct Board, 49 Barb. 259; People v. Contracting Board, 27 N. Y. (13 Smith) 378; People v. Fay, 3 Lans. (N. Y.) 398. And, generally, the writ will only compel action on the part of public boards or officers, and not direct them what their action shall be, where there is any discretion as to the mode of action. People v. Supervisors, 45 N. Y. (6 Hand) 196; Tuolumne v. Stanislaus Co., 6 Cal. 440; People v. Supervisors, 11 id. 42. See, also, People v. Green, 6 N. Y. Sup. (T. & C.) 129: S. C., 3 Han (N. Y.), 755; S. C. affirmed, 63 N. Y. (17 Sick.) 62

§ 7. Sheriffs, etc. An executive officer, who is required by law to serve process, may be required by mandamus to perform all merely ministerial or executive duties imposed upon him, even although the party interested in the performance of the duty, may have a remedy at law against him and his sureties for a failure so to do. Fremont v. Crippen, 10 Cal. 211; People v. McClay, 2 Neb. 7; Williams v. Smith, 6 Cal. 91; People v. Fleming, 4 Denio, 137. And where it was incumbent on him by law to keep his office at the county seat, it was held proper to issue a mandamus to compel this duty. State v. Eaton, 11 Wis. 27; State v. Walker, 5 S. C. 263. So, where an officer erased a part of his indorsement, made as required by law, upon a writ of attachment, and made other indorsements thereon, it was held that mandamus was proper to compel him to restore the erased part. Ward v. Curtiss, 18 Conn. 290. So, a jailer may be compelled by mandamus to deliver the body of a prisoner who has died in his custody. Reg. v. Fox, 2 Ad. & E. (N. S.) 247. And it will lie to compel a sheriff to execute a proper deed to a purchaser of lands on execution. The People v. Ransom, 2 N. Y. (2 Comst.) 490. See, also, Van Rensselaer v. Sheriff, 1 Cow. 501.

§ 8. Clerks of courts. Where a county or other clerk of a court improperly refuses to perform a ministerial duty imposed upon him by the law, and pertaining to his office, a mandamus is the proper remedy to compel performance; as where he is required to issue a certificate of election to a certain officer (Brower v. O'Brien, 2 Ind. 423; People v. Rives, 27 Ill. 242); to receive and file an official bond or adminis ter the oath of office to an officer (People v. Fletcher, 2 Scam. [Ill.] 482); to deliver a transcript on a writ of error or appeal (Davis v. Carter, 18 Tex. 400); to compel him to record a judgment, deed or other matter, when the law makes it his duty to do so (People v. Miner, 37 Barb. 466; Silver v. The People, 45 Ill. 225; Commonwealth v. Supervisors, 29 Penn. St. 121); or to accept and file a bond, when he is invested with no discretion as to its sufficiency (Gulick v. New, 14

Ind. 93); to issue any process which it is made his duty to issue (People v. Gale, 22 Barb. 502; Draper v. Noteware, 7 Cal. 276); as a citation (Ex parte Carnochan, Charlt. [Ga.] 216); an execution upon final judgment (People v. Gale, 22 Barb. 502); a writ of possession (People v. Loucks, 28 Cal. 68); of assistance (Attorney-General v. Lum, 2 Wis. 507); or any process that by law it is made his duty to issue (Rodgers v. Alexander, 35 Tex. 116); and that the relator has a clear and undoubted right to have it issue. Com. v. Supervisors, 29 Penn. St. 121; Draper v. Noteware, 7 Cal. 276: Williams v. Judge, 27 Mo.

225.

It has been held in some States that, where the party has a clear remedy against the clerk for damages for a refusal to perform his duty in the issue of process, as by refusing to issue execution, this remedy will be denied. Goodwin v. Glazer, 10 Cal. 333; Fulton v. Hanna, 40 id. 278. But the better doctrine, and the weight of authority seems to be that, where the remedy at law does not afford as full and ample redress, this remedy may be resorted to. Attorney-General v. Lum, 2 Wis. 507.

And, generally, the test may be said to be whether the remedy at law will furnish the specific relief sought by mandamus. People v. Loucks, 28 Cal. 68.

If, however, a specific relief is provided by statute, such remedy must be resorted to, and a mandamus will not lie; but the mere fact that an action for damages will lie against him or upon his official bond does not defeat the remedy. The question is, whether there is another remedy by which the same specific relief may be had. People v. Loucks, 28 Cal. 68.

And, in all cases, the question whether a mandamus will lie or not is to be determined by the question whether the act is purely ministe rial; for, if he is invested with any discretion in reference to the act to be done, the remedy will be denied. Swan v. Gray, 44 Miss. 393; Fulton v. Hanna, 40 Cal. 278; Kendall v. United States, 12 Pet. (U. S.) 524; Bryan v. Cattell, 15 Iowa, 538; People v. Loucks, 28 Cal. 68. See, also, ante, 361, § 5, for a further consideration of the application of mandamus to clerks.

§ 9. President and his cabinet. On general principles, it may, perhaps, be safely affirmed that the president of the United States cannot be compelled to perform any act pertaining to his office, whether judicial He is treated as being invested with a discretion as to every official act, and is only amenable for acts of omission and commission to the tribunal designated by the constitution. See post, 366, § 10. But a different rule prevails as to the members of his cabinet, and where by

or not.

law they are required to discharge certain duties, or perform certain acts, and they are invested with no discretion in relation thereto, that is, where certain acts are required of them that are purely ministerial, and do not require the exercise of official judgment, they are amenable to mandamus. Thus, the postmaster-general has been compelled by mandamus to enter credits upon the books of his office to parties entitled thereto. Kendall v. United States, 12 Pet. (U. S.) 526. But, where there is any discretion vested in the head of a department as to the act sought to be enforced, the remedy will be denied, and the instances in which the remedy can be had are rare. Reeside v. Walker,

11 How. (U. S.) 272; United States v. Guthrie, 17 id. 284; Decatur v. Paulding, 14 Pet. (U. S.) 497; Brashear v. Mason, 6 How. (U. S.) 92; United States v. Land. Commissioner, 5 Wall. 563; The Secretary v. McGarrahan, 9 id. 298.

§ 10. Governors and secretaries. Whether a mandamus will lie from a State court to the governor, to compel the performance of an executive duty, is a matter about which considerable conflict exists. It is held in several of the States that it does lie to enforce a merely ministerial act not strictly comprehended under his executive and political functions. Thus, a mandamus has been held to be the proper remedy to compel him to give a certificate or commission to an officer duly elected to a particular office. Magruder v. Swann, 25 Md. 173. To sign and execute a patent for lands sold by the State according to law (Middleton v. Law, 30 Cal. 596); to issue a proclamation as required by law that a banking corporation had complied with the law and was entitled to do business as such (State v. Chase, 5 Ohio St. 528); to compel him to draw a warrant upon the treasurer for the payment of certain sums, payment of which was directed by law (Tenn. R. R. Co. v. Moore, 36 Ala. 371); to authenticate as a law a bill which had duly passed the legislature (Harpending v. Haight, 39 Cal. 189; 2 Am. Rep. 432); to draw a warrant upon the treasurer to pay the salary of a State officer, as fixed and required by law. Cotten v. Ellis, 7 Jones (N. C.), 545.

But, while the State courts, from the reports of which the preceding cases have been collected, assert the right to compel executive action by this process, the weight of authority is opposed to the exercise of such power by the courts for any purpose, upon the theory that the chief executive officer of the State must be regarded as invested with a discretion as to every official act. People v. Yates, 40 Ill. 126; Hawkins v. The Governor, 1 Ark. 571; Chamberlain v. Sibley, 4 Minn. 309; Mauran v. Smith, 8 R. I. 192; 5 Am. Rep. 564; State v. Warmoth, 22 La. Ann. 1; 2 Am. Rep. 712; State v. Towns, 8 Ga. 360; In re Dennett,

32 Me. 508; Com. v. Dennison, 24 How. (U. S.) 66; Houston, etc. R. R. Co. v. Randolph, 24 Tex. 317; People v. Governor, 29 Mich. 320; S. C., 18 Am. Rep. 89.

That the heads of the executive departments of the State government, as the secretary of State, secretary of the treasury, etc., may, by mandamus, be compelled to perform purely ministerial duties imposed upon them by law, would not seem to be doubtful. Thus, it has been issued to compel the secretary of State to deliver a commission to a person entitled thereto (Marbury v. Madison, 1 Cranch [U.S.], 137); to compel him to furnish a copy of the laws to a person entitled thereto (State v. Barker, 4 Kans. 379); to compel him to affix his official seal to the commission of a person appointed to fill a certain office, by the governor (State v. Wrotnowski, 17 La. Ann. 156); to compel the State treasurer to deliver to a party a mortgage of lands executed to the State, . to be used as evidence in a cause (D'Oyley's Case, 1 Brev. [S. C.] 238); to compel the payment of a warrant drawn upon the treasury (State Bank v. Hastings, 15 Wis. 75); or a debt against the State, the amount of which has been ascertained according to law (McDougal v. Roman, 2 Cal. 80); to compel him to give a notice required by law (People v. State Treasurer, 4 Mich. 27); to compel the State auditor to issue his warrant for the payment of a claim duly audited (Lindsey v. Auditor, 3 Bush [Ky.], 231; Swann v. Buck, 40 Miss. 268); to issue circulating notes to a bank that by law is entitled thereto (Citizens' Bank v. Wright, 6 Ohio St. 318); and, generally, to compel the performance by such officers, of any official act, purely ministerial. Commissioners of the Land Office v. Smith, 5 Tex. 471; Bryan v. Cattell, 15 Iowa, 538.

And in Pennsylvania a mandamus lies to the secretary of a land office to compel him to make the calculations of purchase-money and interest on lands sold, if he has omitted, or wholly refused to do so, but not to direct in what manner he shall make such calculations. Commonwealth v. Cochran, 5 Binn. 87.

§ 11. Attorney-general. The attorney-general of a State may by this process be compelled to perform a purely ministerial act. But when the process would be fruitless to enforce the right sought to be enforced, it will not be granted. People v. Tremain, 29 Barb. 96. In the case last cited, it was sought to compel the making of a certificate by the attorney-general, that an action brought in the name of the people was properly brought as a preliminary requirement, to a payment of the defendant's claim against the State, and it appeared that there was no appropriation out of which it could be paid. So it has been denied where it was sought to compel him to institute

quo warranto proceedings, when the term of office would expire before any effectual action could be had. Woodbury v. County Comm'rs, 40 Me. 304. It would seem that the remedy cannot be had to compel him to institute quo warranto or other proceedings, unless the statute makes it his imperative duty to do so. Otherwise he is treated as vested with a discretion, whether an action should be brought or not, and the courts will not interfere therewith. People v. Attorney-General, 22 Barb. 114.

§ 12. Treasurers and payment of money. When the relator has no other adequate remedy, a mandamus will issue to compel the payment of warrants or properly audited claims against the State, by the State treasurer, when by law he is required to pay the same, and there is money in the treasury out of which they can lawfully be paid. State Bank v. Hastings, 15 Wis. 75; Swann v. Buck, 40 Miss. 268; McDougal v. Roman, 2 Cal. 80.

When the law provides that claims against the State shall be audited by a particular officer, and warrants upon the treasury drawn for the amount found to be due, a mandamus lies to compel both the audit and the drawing of the warrant. Fowler v. Peirce, 2 Cal. 165; McCauley v. Brooks, 16 id. 11; Swann v. Buck, 40 Miss. 268. A mandamus can only issue against a State treasurer when he has money, and illegally withholds it from one entitled to be paid. State v. Dubuclet, 26 La. Ann. 127. See State v. Hobart, 12 Nev. 408.

§ 13. Election canvassers. While a mandamus does not lie to try and determine the title to an office, yet a board of canvassers whose duties are merely ministerial, and who have no power to determine upon the validity of an election or the returns, may by this process not only be compelled to receive and count votes rejected by them, but also to canvass all the returns in their possession. Florida v. Gibbs, 13 Fla. 55; S. C., 7 Am. Rep. 233; State v. County Judge, 7 Iowa, 186; Clark v. McKenzie, 7 Bush (Ky.), 523; Ellis v. County Comm'rs, 2 Gray (Mass.), 370; Kisler v. Cameron, 39 Ind. 488; State v. Dinsmore, 5 Brown (Neb.), 145. And the fact that they have met and made the canvass, and made their return thereof, and adjourned sine die, does not defeat the remedy. They may be compelled to reassemble and re-canvass the returns, and the court will direct that all the returns shall be canvassed. Florida v. Gibbs, 13 Fla. 55; S. C., 7 Am. Rep. 233. But if it is shown that the election is illegal, the remedy will be denied. State v. Robinson, 1 Kan. 17. But the fact that fraud and bribery in the election is alleged, will not be considered as a reason for refusing it. State v. County Judge, 7 Iowa, 186;