eleven hundred and twenty-four and 40-100 dollars, found concealed in his clothing. The prisoner and the money were delivered to the sheriff of the county. An attachment, having been sued out against the defendant Hurn, was placed in the hands of the sheriff, and by him levied upon the money in his possession. This was followed by a writ of garnishment executed by the coroner of the county upon the sheriff. The attachment and garnishment suits were made returnable to the City Court of Montgomery. The sheriff, as garnishee, filed his answer setting up the facts and circumstances under which he came in possession of the money, paid the money into court, and prayed that "all proper issues and orders be made up under the direction of the court, in order that it might be ascertained to whom the money should be paid." The defendant Hurn moved the court for an order, that the money be restored to him, "upon the grounds that his person had been searched in violation of law, and the money wrongfully, illegally and violently taken from his person." The suit by attachment and upon which the garnishment issued were still pending and undisposed of at the hearing of the motion. The court refused to permit moveant to introduce affidavits in support of the facts stated in his petition; and made the following order: "April 14, 1891. Motion overruled. 1st. Because the court is without jurisdiction. 2d. Because the facts set out in the motion present an issue to be decided upon by the jury in the trial of the attachment suit.” From this order overruling the motion, the petitioner applies to this court for a mandamus "upon the grounds that the court refused to hear and determine the motion," etc. In Ex parte Redd, 73 Ala. 549, it was declared that the coercive process of mandamus is proper when an inferior court refuses to proceed to judgment in a case in which the law makes it his duty to act. This court compels judgment, but will not control it. In Ex parte Schmidt and Smith, 62 Ala. 254, it was held that the writ would lie to compel the execution of ministerial duties in all proper cases, but would not be awarded to order or direct what judgment shall be rendered in any given case, nor can its powers be invoked to correct any error in the final judgment or decree of an inferior court. In such cases there is an adequate remedy by appeal. Ex parte Echols, 39 Ala. 700; Ex parte State Bar Associ ation, 8 So. Rep. 768. In the case of petitioner, the court overruled the motion. The motion has been disposed of by judicial action of the court. Whether the court erred in the order overruling the motion, or in not receiving in evidence the affidavits offered in support of the petition, or whether the reasons assigned by the court for overruling the motion are sufficient, cannot be reviewed on the application for the writ of mandamus. Such questions are revisable only by appeal. The remedy by appeal seems to have been resorted to in the cases cited by appellant. In any view we take of the case, the application for mandamus must be denied. Mandamus denied. The courts will, however, on mandamus, correct a clear abuse of discretion. Illinois State Board of Dental Examiners v. People, 123 Ill. 227, supra, and will force an authority to exercise its discretion one way or another. Commonwealth v. Court of Illinois, 2 Pickering (Mass.) 414. III. ACTS IMPOSSIBLE OF PERFORMANCE. COUNTY COMMISSIONERS V. JACKSONVILLE. This is a proceeding by mandamus, instituted by the city of Jacksonville against the County Commissioners of Duval county, to require them to turn over to the municipal authorities of said city one-half of the amount realized from a special tax for public roads and bridges levied and collected on the property within the corporate limits of said city, under section 17, chapter 4014, laws of 1891. MABRY, C. J. The only other contention demanding any discussion is, that the peremptory writ commands the county commissioners to forthwith turn over to the municipal authorities of Jacksonville $5,746.74, when, as shown by the return, only $758.91 remained in the treasury to the credit of the public road fund. The case was disposed of on the alternative writ and return thereto, and as shown by the return, one-half of the amount collected and paid into the county treasury on property in the city of Jacksonville as a road fund for the year 1891, 1892 and 1893 was $8,455.79. The sum of $2,709.05, it is conceded, had been paid, and the balance amounted to $5,746.74. This last sum is the amount ordered by the court in the peremptory writ to be immediately turned over to the city authorities. The return distinctly alleges that the whole amount has been required and used for the purpose of keeping the county roads and bridges in good repair, except the sum of $758.91, the balance remaining in the hands of the county treasurer. According to the return of the county commissioners, it is clearly shown that the county had expended all the road and bridge fund except the amount stated, and that the only sum received by the city authorities was $2,746.05. The county had expended largely the city's part of the road money, but the money, as is clearly shown, is not in the county treasury to be turned over, and the question arises, to what extent will the remedy of mandamus apply? The writ of mandamus is a discretionary remedy, and while the courts will apply [it] in proper cases, they often refuse it when it would be attended by no beneficial results. State ex rel. v. Commissioners of Marion Co., 27 Fla. 438, 8 So. Rep. 749. A peremptory writ of mandamus will not usually issue commanding an officer to do what is not within his power to do, and though by putting it out of his power to perform a duty he may become liable in damages, still where he cannot perform the act, and this is clear to the court, mandamus will not be issued against him. This rule has been applied to public officers who have improperly diverted funds in their hands or under their control so that they were unable to comply with some duty in reference to their disposal. Rice v. Walker, 44 Ia. 458; Bates v. Porter, 74 Cal. 224; Universal Trustees v. Trustees of Columbia Township, 6 Ohio 446, s. c. 27 Am. Dec. 267; State ex rel. Board of Freeholders v. Township of Lacey, 42 N. J. L. 536; People ex rel. v. Tremain, 29 Barb. 96; State ex rel. v. City of New Orleans, 34 La. Ann. 469; Township Board of Education v. Boyd, 58 Mo. 276. Under the showing made we think the court should not have undertaken to compel the county commissioners to turn over money that was not under their control, and which it was not in their power to do as officials of the county. The judgment should have commanded the county commissioners to turn over the road funds in the county treasury by issuing a warrant on the treasurer for that purpose. To this extent only should the remedy by mandamus be applied in this case. 614 The judgment is reversed with directions that the Circuit Court enter judgment in accordance with this opinion. Mandamus will not lie to compel the performance of an unlawful act. People v. Assessors, 55 N. Y. 252, where the court refused to force assessors to verify an assessment in accordance with the law, where such action would have resulted in the commission of perjury. Nor will it lie to compel the doing of an act which has been forbidden by an injunction issued by a court of the same state. Ohio and Indiana R. R. Co. v. Commissioners, 7 Ohio St. 278; but the United States courts do not hesitate to force by mandamus the performance of an act forbidden by an injunction issued by a state court. Riggs v. Johnson Co., 6 Wall. 166. WAMPLER V. STATE EX REL. ALEXANDER. Supreme Court of Indiana. October, 1897. JORDAN, J. This was a proceeding in the lower court on the part of the relators, Virgil H. Alexander, and Alexander Gable, to obtain a writ of mandate against the appellant, a township trustee of Blackford county, Indiana, to compel him to meet with them (who are also township trustees), for the purpose of electing a county superintendent of schools. The theory of the insistence of appellant's counsel is: 1st. That relators herein are not shown to have the requisite interest to entitle them to prosecute this action. 2d. That, under the facts, mandamus will not lie to compel the appellant to meet for the purpose of electing a superintendent on a day subsequent to the first Monday in June. Or, in other words, that he did not have the power, under the statute in controversy, of meeting, after the time provided therein, for the reason, as contended, that the law is mandatory in this respect, and restrains him from doing so; hence, on this ground, the principal contention is, that he cannot be mandated by the court to exercise a power which he did not possess after the first Monday in June, 1897, and consequently, there can be no meeting and election by the trustees until the next biennial year. Section 1182, Burn's R. S., 1894 (1168 R. S. 1881), being section 804 of the civil code, provides: "Writs of mandate may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station." Under this provision of our code, the rule is well affirmed that mandamus is the proper remedy to coerce an official to discharge a public duty, and any person having an interest in the matter involved may apply for the writ. Hamilton v. State, 3 Ind. 452; Holliday v. Henderson, 67 Ind. 103. Mandamus is regarded as an extraordinary remedy of an equitable nature, which will lie only where the law affords no other adequate remedy, and hence, without the aid of the writ, there would be a failure of justice. The statute in express terms lodges the election of a county superintendent in the township trustees of each county, and imposes upon each of them the duty of meeting on the first Monday in June, beginning in 1873, and on the same day biennially thereafter, at the place designated, and of appointing a county superintendent. This being a duty enjoined upon these officials by law, therefore, in the event they refuse or neglect to discharge it, it then becomes one of the peculiar functions of a mandate to compel them to obey the law by discharging this duty, as there are no other adequate means to meet and remedy the evils and injustice which would result by reason of the failure or refusal of these public servants to respect and obey the law. Certainly, it cannot be successfully controverted but what mandamus may be invoked to enforce township trustees, or any one thereof to meet with each other at the time and place prescribed by law and proceed with the business of appointing a county superintendent. This being true, then if it can be said that they are not restrained or prohibited by the statute in question from meeting and performing this duty after the day prescribed, but still have the power to subsequently do so, there is no question but what, in the event of their failure or refusal to meet for the purpose mentioned, after the lapse of the time fixed by law, they may also be compelled to do so by a writ of mandate, on the application of any person shown to be invested with the right in the particular instance to demand it. People v. Schiellen, 95 N. Y. 124. Having reached this conclusion, we may proceed to determire whether, in view of the facts in this cause, and the law applicable thereto, the appellant still had the legal power to meet for the pur |