Lewis v. Commissioners of Marshall County, 16 Kan. 102; S. C., 22 Am. Rep. 275.

The remedy in such cases cannot be applied for until the time arrives when they are to act, nor until it is apparent that they do not intend to canvass all the returns, or those that prima facie should be canvassed; and mere threats made by them before the time for making the canvass arrives, not to canvass certain returns, are not sufficient to warrant the issuance of the writ, until the time for them to act has arrived. State v. Carney, 3 Kan. 88.

A mandamus will also lie, to compel the return judges of an election to count the votes duly certified to them, and give a certificate of election in accordance therewith. Thompson v. Ewing, 1 Brewst. (Penn.) 67; Commonwealth v. Emminger, 74 Penn. St. 479.

Not only will a mandamus iie to compel action by them, but the court will also direct what returns shall be canvassed, and, when the law makes it their duty to do so, will compel the issue of a certificate of election to the person apparently entitled thereto. Kisler v. Cameron, 39 Ind. 488; People v. Hilliard, 29 Ill. 419; In re Strong, 20 Pick.

484.

But where the board is made the judges of the sufficiency or validity of the returns, or is in any respect invested with a discretion in respect thereto, the remedy will be denied. Arberry v. Beavers, 6 Tex. 457; Mayor of Vicksburgh v. Rainwater, 47 Miss. 547; Grier v. Shackleford, 3 Brev. (S. C.) 549.

§ 14. Supervisors and county officers. Boards of supervisors and county officers generally may be compelled by mandamus to discharge all ministerial duties incidental to their office. Thus, a board of supervisors may, by this process, be compelled to levy a tax to repay a tax illegally assessed and collected, and which the legislature has directed them to refund (People v. Supervisors of Otsego, 51 N. Y. [6 Sick.] 401); to admit and allow claims against the county (People v. Supervisors of N. Y., 32 N. Y. 473; People v. Supervisors, 3 Mich. 475; People v. Supervisors, 21 How. [N. Y.] 322); to renew a license when the applicant is entitled to a renewal (Thomas v. Armstrong, 7 Cal. 286); to levy a tax, and to have the same collected, to pay the indebtedness of the county (State v. Harris, 17 Ohio St. 608; State v. County Judge, 12 Iowa, 237; Morgan v. The Commonwealth, 55 Penn. St. 456); to reduce a tax, when the applicant is entitled to have it reduced (Adriance v. Supervisors, 12 How. [N. Y.] 224); as to compelling them to designate newspapers in which the county printing shall be done, and to designate a particular paper, when by law such paper is entitled thereto (Express Company v. Supervisors of Albany Co., 1877, Gen. VOL. IV.-47

Term; People v. Supervisors of Hamilton Co., 9 Hun, 60, reversed by court of appeals); or any duty that the law requires them to perform at their annual meeting. People v. Chenango, 8 N. Y. (4 Seld.) 317.

It is also an appropriate remedy to compel them to levy a tax to pay bonds or the coupons thereof, issued by the county, when by law they have the power to pay them (Knox Co. v. Aspinwall, 24 How. [U. S.] 376; English v. Supervisors, 19 Cal. 172); to compel them to subscribe for stock in a railroad, when a vote to that effect has been passed (Napa Valley R. R. Co. v. Napa Co., 30 Cal. 435; Piatt v. People, 29 Ill. 54); to compel them to audit the accounts of the county sheriff, as jailer, for receiving, discharging and boarding prisoners committed by the officers of a city for misdemeanors and violations of city ordinances (People v. Supervisors of Columbia County, 67 N. Y. [22 Sick.] 330); and, generally, to discharge any ministerial functions imposed upon the board. People v. Chenango, 8 N. Y. (4 Seld.) 317; Commonwealth v. Johnson, 2 Binn. (Penn.) 275; State v. Supervisors of Wood County, 41 Wis. 28.

County auditors may be compelled by mandamus to audit claims against the county, and, when it is their duty to do so, to draw a warrant upon the treasury for the amount found due. But the office of the writ will not be extended beyond merely setting them in motion. It will not direct what their action shall be. Burnet v. Auditor of Portage County, 12 Ohio, 54.

Thus, it will compel him to audit a claim against the county for food, etc., furnished to the jury in a criminal cause, when they are kept together for several days. State v. Auditor of Hamilton County, 19 Ohio, 116; Tuolumne Co. v. Stanislaus Co., 6 Cal. 440; People v. Supervisors, 32 N. Y. 473. And it will be issued to compel him to draw his warrant for a sum appropriated by the board of supervisors. State v. Buckles, 39 Ind. 272.

Mandamus also lies to compel a county treasurer to pay a warrant properly drawn upon the treasury, or a claim properly audited and allowed against the county, when there is money in his hands out of which it can lawfully be paid (People v. Edmonds, 19 Barb. 472; Baker v. Johnson, 41 Me. 15); to compel him to pay a sheriff the amount of his fees, admitted and allowed by the court (Id.); unless the claim has been illegally or improperly allowed. People v. Stout, 23 Barb. 349; People v. Lawrence, 6 Hill, 244.

The fact that there are no funds in the hands of the treasurer out of which the warrant or claim can be paid, is not a bar to this remedy, if a specific fund for such purposes has been provided, and the treasurer has improperly applied it to other purposes. Adsit v. Brady, 4 Hill,

634; Huff v. Knapp, 5 N. Y. (1 Seld.) 65; People v. Stout, 23 Barb. 339. So a mandamus lies to compel a register to comply with the law requiring him to deposit with the county clerk, at the close of his duties, the books of his office. McDiarmid v. Fitch, 27 Ark. 100.

County commissioners, as well as all other county officers, may be compelled by mandamus to discharge any ministerial function incident to their office, which they unnecessarily neglect or refuse to perform, as to make a county rate, for a legal and proper purpose (Com. v. Commrs. of Alleghany, 32 Penn. St. 218); to certify that the relator had a majority of votes cast for a certain office, although they have certified that another person had, and such person is in possession of the office (Ellis v. County Commissioners, 2 Gray, 370); or to receive a sheriff's bond and permit him to qualify. State v. Lewis, 10 Ohio St. 128. See, also, ante, 363, § 6.

But it will not be authorized to control any discretion of the officer, at least where it is reasonably exercised. It will not in such cases direct what their action shall be, but only that they act. People v. Supervisors, 45 N. Y. (6 Hand) 196; People v. Supervisors, 11 Cal. 42. Nor will it issue when there is another plain and adequate remedy. People v. Mayor, 25 Wend. 680; State v. Supervisors, 29 Wis. 79; Mansfield v. Fuller, 50 Mo. 338; People v. Clark, 50 Ill. 213; Dubordieu v. Butler, 49 Cal. 522.

15. Municipal corporations. A municipal corporation may be compelled by mandamus to levy a tax to meet its obligations either in the form of a funded debt, or a judgment. Galena v. Amy, 5 Wall. (U. S.) 705. And it has been held that it was the appropriate remedy against a city, instead of a bill in equity, to compel it to pay a judgment against it. Walkley Walkley v. Muscatine, 6 Wall. (U. S.) 481; State v. Milwaukee, 20 Wis. 87. And to compel the levy and collection of a tax where it is the manifest duty of the city so to do. Chapin v. Osborn, 29 Ind. 99; State v. Keokuk, 9 Iowa, 438; Coy v. City of Lyons, 17 id. 1.

And where a municipal corporation issued bonds in payment of a subscription to the stock of a railroad, it was held proper to compel the corporation by mandamus to levy a tax for the purpose of paying the interest on such bonds. Flagg v. Palmyra, 33 Mo. 440. See, also, same doctrine in Morgan v. Commonwealth, 55 Penn. St. 456. So it is a proper remedy against an officer of a city whose duty it is to execute and deliver its bonds to the relator, to compel him to do so (People v. Brennan, 39 Barb. 651. And see Stockton R. R. Co. v. Stockton, 51 Cal. 328); to compel an officer to perform a duty imposed by law, of uniting with others in the selection of a newspaper in which

to advertise matters required to be advertised (Id.); to compel the issuance of precepts for the collection of an assessment for city improvements, where such duty is imposed upon the city council (Chapin v. Osborn, 29 Ind. 99); against collectors of cities for failure to pay over taxes collected as required by law (State v. Hammell, 31 N. J. Law, 446; People v. Haws, 36 Barb. 59); to compel a city council to issue stock in a public fund authorized to be created for the purpose of crecting a public market (People v. Common Council of N. Y., 45 Barb. [N. Y.] 473); to compel a common council to proceed with the opening of a street where it is their duty so to do; and a party, who is entitled to damages awarded him for lands taken therefor, is authorized to make the application. People v. Common Council of Syracuse, 20 How, (N. Y.) 491.

In all cases where there is a plain duty to be performed by an officer, board or municipal corporation, and there is no discretion to be exercised in the performance of it, and there is no other adequate remedy, a mandamus is the appropriate remedy to command its performance in favor of the party injured by its non-performance. And there need not be a positive refusal to perform the duty enjoined, to authorize the interposition of the court by mandamus. It is sufficient if there is unreasonable delay, and a manifest intention not to perform it. Cleveland v. Board of Finance, 38 N. J. Law, 259.

Under such circumstances the books and papers of an office may be secured by a successor in office from his predecessor. Proprietors of Church v. Slack, 7 Cush. 226; Commonwealth v. Athearn, 3 Mass. 285; King v. Round, 4 Ad. & El. 139; Kimball v. Lamprey, 19 N. H. 215; Parish v. Stearns, 21 Pick. 148; Bates v. Plymouth, 14 Gray, 163; City of Keokuk v. Merriam, 44 Iowa, 432. So, in England, a mandamus lies to compel a municipal corporation to select a mayor and other corporate officers. Rex v. Cambridge, 4 Burr. 2008; Rex v. Leyland, 3 M. & S. 184; Rex v. York, 4 T. R. 699; Regina v. Leeds, 7 A. & E. 963. And in this country it has been held that the proper officers may be compelled by mandamus to give notice of an election required by law. People v. Fairbury, 51 Ill. 149. So, such a corporation may be compelled to appoint and hold a special election. State v. Rahway, 33 N. J. Law, 110. And a common council may be required by mandamus to hold a meeting to appoint certain corporate officers (Lamb v. Lynd, 44 Penn. St. 336; Attorney-General v. City Council, 111 Mass. 90); to act as canvassers and judges of elections. Id. And it is an appropriate remedy to compel an election officer, on the relation of a voter, to announce the vote of an election (People v. Salomon, 46 Ill. 415); to compel the proper officers to give a certificate of election to the

person entitled to it (State v. The Judge, etc., 13 Ala. 805; Strong, Petitioner, 20 Pick. 484; O' Farell v. Colby, 2 Minn. 180; State v. Loomis, 5 Ham. (Ohio) 358); to compel a municipal corporation to act upon the sufficiency of sureties offered by a person elected to a municipal office (Commonwealth v. City Council of Phila., 7 Am. L. R. [N. S.] 362); to compel the proper officers, on the division of towns, to apportion the money between them as provided by law (People v. Marsh, 2 Cow. 493); to compel officers to issue bonds, authorized and due for public improvements (People v. Flagg, 11 Am. L. R. 80; People v. White, 54 Barb. 622); to compel a mayor to perform his duty as presiding officer (Rex v. Everitt, Cas. temp. Hard. 261; Rex v. Williams, 2 M. & S. 141); to compel the proper officer of a city to issue a license to one entitled thereto (East St. Louis v. Wider, 46 Ill. 351; Hall v. Supervisors, 20 Cal. 591); to compel county commissioners to make a record of their action, that an appeal may be taken (Commissioners v. State, 15 Ind. 250); to compel the proper officer to record a deed or paper (People v. Collins, 7 Johns. 549); to compel the proper persons to receive and file a petition as required by law (Hawkins v. County Coms., 14 Ind. 521); and to compel a city marshal to restore property levied on for taxes, to a claimant, on receiving the bond surety required therefor by statute. Mitchell v. Hay, 37 Ga. 581.

But a mandamus will not lie to compel the mayor of a city to perform a duty which belongs solely to its common council. State v. City of Shreveport, 29 La. Ann. 658.

§ 16. Private corporations. As corporations are in the law only artificial persons, they as well as individuals may invoke the aid of a mandamus, where they have an interest in the performance of a duty imposed by law upon an individual officer, or other corporation, the performance of which is neglected or refused. And the same circumstances that would entitle an individual to the remedy, would give it to a private corporation. Insurance Co. v. Mayor, 23 Md. 296; Chicago, etc., R. Co. v. People, 56 Ill. 365; Indianapolis, etc., R. Co. v. State, 37 Ind. 489; State v. Southern Minn. R. Co., 18 Minn. 40; Reg. v. London, etc., R. Co., 13 Q. B. 998; Reg. v. Wing, 17 id. 645; Reg. v. Midland, etc., R. Co., 15 Ir. Co. L. R. 525. Thus a private corporation may, by this process, compel the commissioner of a land office to issue a certificate for lands to which the corporation may be entitled. Houston, etc., R. Co. v. Commissioner, 36 Tex. 382. And may compel county officers to levy a tax on the county to satisfy a judgment rendered on bonds issued as provided by law. Riggs v. Johnson Co., 6 Wall. (U. S.) 166; Mayor v. Lord, 9 Wall. 409; Supervisor v. Durant, id.