736. And they may claim the benefit of a mandamus against persons wrongfully claiming to hold its offices. American R. Frog Co. v. Haven, 101 Mass. 398; 3 Am. Rep. 377.

Instances of

It may also be invoked against private corporations. this character are as follows: It may be used to compel a corporation to keep a register and insert therein the names of the stockholders, if this duty is imposed by law, or the provisions of the charter (Norris v. Irish Land Co., 8 El. & Bl. 525; Swan v. North British, etc., Co., 31 L. J. Ex. 425); to swear in one as director who has been lawfully elected (2 Str. 696); to allow the members all the privileges of membership (Dacosta v. The Russia Co., 2 Str. 783); to compel a railroad or canal company, to build or repair its road or canal (People v. Troy, etc., R. Co., 37 How. Pr. 427; Habersham v. Canal Ob., 26 Ga. 665); to compel a railroad company to so grade its track as to make the crossings practically convenient and useful (Chicago, etc., R. Co. v. People, 56 Ill. 365); to so construct its road across streams as not to interfere with navigation (State v. Northern R. Co., 9 Rich. [S. C.] 247), and to compel the cashier of a bank to allow a director to examine the books of the bank. People v. Throop, 12 Wend. 183.

The remedy by mandamus is also frequently used to compel the production, inspection, or surrender of the books, records, etc., of corporations, to those entitled thereto. American Ry. Frog Co. v. Haven, 101 Mass. 398; 3 Am. Rep. 377; State v. Goll, 3 Vroom (N. J.), 285; St. Luke's Church v. Slack, 7 Cush. 226; People v. Pacific Mail Steam Ship Co., 50 Barb. 280.

Nor will it ordinarily furnish grounds to excuse the production of books and papers of a private corporation, under this process, that they contain accounts between the corporation and its stockholders and are, therefore, of a confidential character. People v. Pacific Mail Steamship Co., 50 Barb. 280; 34 How. 103; 3 Abb. (N. S.) 364.

This remedy is also frequently appropriate to compel the proper officer of the corporation to give a proper certificate of the transfer of shares of the capital stock (Bailey v. Strohecker, 38 Ga. 259); to enter upon the proper books of the company a record of the probate of the will of a deceased stockholder showing the disposition of his stock (Rex v. Worcester, etc., Co., 1 Man. & Ray. 529); to compel a railroad company to carry its passengers to a particular terminus as provided by its charter (State v. Hartford, etc., R. Co., 29 Conn. 538); to compel the replacement of a track taken up in violation of its charter (King v. Severn, etc., R. Co., 2 B. & A. 644); and to compel the assessment of damages of lands taken under the right of eminent domain. Queen v. Eastern Counties R. Co., 2 Ad. & E. (N. S.)

347; King v. Water Works Co., 6 Ad. & E. 355 ; Queen v. Trustees, etc., 8 id. 439; Queen v. Deptford Pier Co., id. 910.

§ 17. Town officers. Mandamus also lies to compel the performance of ministerial duties by town officers.

Thus, it is an appropriate remedy to compel a town treasurer to pay money in his hands, on a proper order drawn upon him therefor (Case v. Wresler, 4 Ohio St. 561); to compel him to perform his duty in the recording of deeds or other papers (Strong's Case, Kirby [Conn., ]345); to compel the clerk of a school district to deliver the records of his of fice to his successor (Taylor v. Henry, 2 Pick. 397; Commonwealth v. Athearn, 3 Mass. 287); to compel selectmen to open a highway duly laid out, and pay the damages sustained thereby, where it was their duty so to do (Treat v. The Inhabitants, etc., 8 Conn. 243); to compel a board of school directors to levy a tax to provide the necessary funds for the payment of orders issued by them, when there is no money in the hands of the treasurer to meet the same, and in violation of law, they refuse so to do (Stevenson v. Township of Summit, 35 Iowa, 462); to compel a justice to allow an appeal where the facts permit it (Exc parte Martin, 5 Ark. 371); to compel assessors to assess damages against a plaintiff where a judgment of discontinuance has been rendered (People v. Tripp, 15 Mich. 518); to compel a justice to issue an execution on a judgment rendered by him in favor of a party entitled to it (Laird v. Abrahams, 15 N. J. Law, 22); to compel the overseers of the poor to receive and maintain a pauper, under an order to that effect unappealed from (Overseers of Porter v. Overseers, etc., 82 Penn. St. 275); or to compel a town clerk to record the proceedings of a townmeeting, as publicly declared by the moderator (Hill v. Goodwin, 58 N. H. 441); also, to correct his record to conform to such declaration. Id.

§ 18. Miscellaneous. This extraordinary legal process is some times an appropriate remedy, to compel the performance of the duty of officers, in criminal proceedings.

Thus, it has been held to be an appropriate remedy, where a judicial officer, before whom a prisoner is brought on a habeas corpus, improperly refuses to hear and decide on the evidence adduced concerning his guilt. Ex parte Mahone, 30 Ala, 49.

So it lies to compel a court to which a recognizance has been returned, to certify it to another court, where such duty is clear. Johnson v. Randall, 7 Mass. 340.

But it is not the appropriate proceeding to try the title to an office. See the next section.

ARTICLE II.

REMEDY, WHEN REFUSED.

Section 1. In general. We have already alluded to the concurrence of facts necessary to authorize the issuing of this extraordinary writ. See ante, 357, art. 1, §1. Where these facts do not exist, the remedy should be refused. A few cases will illustrate this application of the law. Thus, the court will refuse a mandamus if the right of the party applying therefor is not clear, or if he has a legal remedy by an ordinary action, equivalent to a specific remedy. United States v. Bank of Alexandria, 1 Cranch (C. C.), 7; People v. Judges, 1 Doug. (Mich.) 319; Williams v. Judge, 27 Mo. 225; State v. Graves, 19 Md. 351; Smith v. Chicago, etc., R. Co., 67 Ill. 191. Nor will it be granted to control the discretion of a person, officer, or board, conferred by law upon them, although they may be required to exercise it. Giles' Case, 2 Str. 881; Rex v. Nottingham, Sayer, 217; Hull v. Supervisors, 19 Johns. 259; Louisville v. Kean, 18 B. Monr. 9; Commonwealth v. Henry, 49 Penn. St. 530; Magee v. Supervisors, 10 Cal. 376; The King v. Bristol Dock Co., 6 B. & C. 181; Appling v. Bailey, 44 Ala. 333; Ex parte Crane, 5 Pet. (U. S.) 190; Dixon v. Field, 10 Ark. 243; Weeden v. Town Council, 9 R. I. 128; Mayor v. Rainwater, 47 Miss. 547; People v. Judge, 24 Mich. 408; Ex parte Newman, 14 Wall. (U. S.) 152; McDiarmid v. Fitch, 27 Ark. 106; State v. Warmoth, 23 La. Ann. 76; East Boston Ferry Co. v. Boston, 101 Mass. 488.

Nor should it be allowed in cases involving numerous questions of law and of fact; and where many acts of parties connected with the matter may be valid or void, depending upon circumstances and facts attending them at the time, and which parol proof is necessary to establish. United States v. Commissioner, 5 Wall. (U. S.) 563. And as a general rule, a mandamus will not be granted where the right depends upon holding an act of the legislature unconstitutional. People v. Stephens, 2 Abb. Pr. (N. S.) 348; Hall v. Supervisors, 20 Cal. 591. Or where it becomes necessary to decide on the constitutionality of a law involving the interests of third persons. Smyth v. Titcomb, 31 Me. 272. Nor will it be allowed where the act sought to be performed is physically impossible (Silverthorne v. Warren R. Co., 33 N. J. Law, 173; State v. Police Jury, 22 La. Ann. 611; Ackerman v. Desha Co., 27 Ark. 457; Ball v. Lappius, 3 Oreg. 55; People v. Salomon, 54 Ill. 39; Commonwealth v. Baroux, 36 Penn. St. 262); or, in general,

to command an act prohibited by injunction. Railroad Co. v. Wyandot Co., 7 Ohio St. 278; Ex parte Fleming, 4 Hill, 581. But this doctrine was held not to apply in case of an injunction issued by a State court to enjoin a levy of taxes by the proper officers of a county to satisfy a judgment of a circuit court of the United States, as, it the injunction should be allowed in such a case to defeat the rights of the judgment creditor to a mandamus, to compel the proper officers to levy the requisite tax to satisfy the judgment obtained against it, the judgment of the court could not be enforced, and its powers would be useless. Riggs v. Johnson Co., 6 Wall. (U. S.) 166. See, also, Mayor v. Lord, 9 id. 409; Supervisors v. Durant, id. 736; Weber v. Lee County, 6 id. 210.

Nor will a mandamus be granted where the defendant has no power to perform the act required (People v. Supervisors, 15 Barb. 607; People ex rel. Stevens v. Hoyt, 66 N. Y. [21 Sick.] 606); or where it would be fruitless (Commonwealth v. Supervisors, 29 Penn. St. 121); or to compel the doing of an unlawful act (Gillespie v. Wood, 4 Humph. (Tenn.) 437; Ross v. Lane, 11 Miss. 695; People v. Fowler, 55 N. Y. [10 Sick.] 252); or where it is not one incident to the defendant's duties (State v. County Judge, 12 Iowa, 237; Pucket v. White, 22 Tex. 559); or to enforce a mere contract (State v. Zanesville, etc., Co., 16 Ohio St. 308); or, generally, to try the title to an office (Underwood v. Wylie, 5 Ark. 248; Bonner v. State, 7 Ga. 473; People v. Stevens, 5 Hill, 615; People v. Detroit, 18 Mich. 338; Brown v. Turner, 70 N. C. 93); or to prevent an anticipated failure of duty (State v. Burbank, 22 La. Ann. 298; State v. Dubuclet, 24 id. 16; State v. Carney, 3 Kan. 88); or to compel payment of even liquidated damages (Haygood v. Justices, etc., 19 Ga. 97); or to try the title to a public office. Denver v. Hobart, 10 Nev. 28; Meredith v. Supervisors, 50 Cal. 433.

The courts of the United States can impart no taxing power to a municipal corporation, and an attempt by them to compel by mandamus the levy of a tax not authorized by the laws of the State, would be an abuse of the writ. Vance v. City of Little Rock, 30 Ark. 435; United States v. City of New Orleans, 2 Wood (C. C.), 230.

§ 2. Judges of superior courts. It is evident on general principles that the judges of superior courts could not be compelled by mandamus to do any act, as the writ can only issue from a superior to an inferior tribunal, where this extraordinary remedy is sought against a court. 3 Bl. Com. 110.

By statute in New York, the supreme court, at a general term, may issue writs of mandamus and prohibition directed to any special term of VOL. IV.-48

said court, or to any justice thereof holding such term or sitting at chambers, and may hear, adjudge, and determine the same, and enforce such determination in the same manner and with the same effect, in all respects, as in the like proceedings when the writs are directed to inferior courts and judges thereof. Laws of N. Y. 1873, ch. 70, § 1.

§ 3. Inferior courts in civil cases. As a general rule, a superior court will not grant a mandamus to an inferior court, compelling it to act in a particular direction or manner where the act sought to be enforced would in any manner interfere with the discretion of the court in the matter, or with its judgment where it had jurisdiction. Clark v. Minnis, 50 Cal. 509; Ex parte Flippin, 94 U. S. (4 Otto) 348.

Thus, after final judgment of the court upon matters within its jurisdiction, a mandamus will not lie to compel it to avoid the effect of the judgment (State v. Bowen, 6 Ala. 511), though it may be compelled to exercise the judgment or discretion conferred upon it. Ex parte Hutt, 14 Ark. 368; Roberts v. Holsworth, 10 N. J. Law, 57. Nor will it lie to compel the district court of the United States to set aside a judgment entered upon default (Ex parte Roberts, 6 Pet. 216); or to compel such court to decide a cause in a particular manner Life Ins. Co. v. Adams, 9 Pet. 573); or to require a district judge of such court to show cause why execution was not issued in a certain case, where judgment had been obtained (Postmaster v. Trigg, 11 Pet. 173); or to compel such judge to reverse a decision made on argument, a writ of error or appeal being the proper course (Ex parte Flippin, 94 U. S. [4 Otto] 348; Ex parte Hoyt, 13 Pet. 279); also same principle in Chase v. Blackstone Canal, 10 Pick. (Mass.) 244; Gray Bridge, 11 id. 189; State v. Lafayette, 41 Mo. 222; Squier v. Gale, 6 N. J. Law, 157); or to compel such court to proceed according to the usages of practice of a court of equity (Ex parte Whitney, 13 Pet. 404; Gaines v. Relf, 15 id. 9); or to direct a judge to declare an election void (13 Ala. 805); or to vacate an order suppressing a deposition (Ex parte Elston, 25 Ala. 72); or to compel a judge of a district court to try a cause transferred by him to the circuit court (Francisco v. Manhattan Ins. Co., 36 Cal. 283); or to compel a judge to sign a bill of exceptions, which is not in accordance with his judgment of the facts (Shepard v. Peyton, 12 Kans. 616; People v. Jameson, 40 Ill. 93; Jamison v. Reid, 2 Greene [Iowa], 394; State v. Noggle, 13 Wis. 380); or to compel a court to correct errors of judgment by annulling what they have done, or to guide their discretion (Dunklin County v. District Court, 23 Mo. 449); or to do an act lying entirely within its discretion (Sinnickson v. Corwine, 26 N. J. Law, 311; City of Louisville v. Kean, 18 B.

V.