Lapas attēli

The first section declares that the laws of the state of Maryland, as they now exist, shall be, and continue in force in that part of the district which was ceded by that state to the United States; which is the part lying on this side of the Potomac, where the court was sitting when the mandamus was issued. It was admitted on the argument that at the date of this act, the common law of England was in force in Maryland, and of course it remained and continued in force in this part of the district; and that the power to issue a mandamus in a proper case is a branch of the common law, cannot be doubted.

The theory of the British government, and of the common law is, that the writ of mandamus is a prerogative writ, and is sometimes called one of the flowers of the crown, and is therefore confided only to the king's bench; where the king, at one period of the judicial history of that country, is said to have sat in person, and is presumed still to sit. And the power to issue this writ is given to the king's bench only, as having the general supervising power over all inferior jurisdictions and officers, and is coextensive with judicial sovereignty. And the same theory prevails in our state governments, where the common law is adopted, and governs in the administration of justice; and the power of issuing this writ is generally confided to the highest court of original jurisdiction.

There can be no doubt, but that in the state of Maryland a writ of mandamus might be issued to an executive officer, commanding him to perform a ministerial act required of him by law; and if it would lie in that state, there can be no good reason why it should not lie in this district, in analogous cases.

Under the judiciary act, the power to issue this writ, and the purposes for which it may be issued in the courts of the United States, other than in this district, is given by the fourteenth section of the act, under the general delegation of power "to issue all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” And it is under this power, that this court issues the writ to the circuit courts, to compel them to porceed to a final judgment or decree in a cause, in order that we may exercise the jurisdiction of review given by the law; and the same power is exercised by the circuit courts over the district courts, where a writ of error or appeal lies to the cir. cuit court. But this power is not exercised, as in England, by the king's bench, as having a general supervising power over inferior courts; but only for the purpose of bringing the case to a final judgment or decree, so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a final determination; otherwise it cannot be reviewed in the appellate court. So that it is in a special, modified manner, in which the writ of mandamus is to be used in this court, and in the circuit courts in the states; and does not stand on the same footing, as in this district under the general adoption of the laws of Maryland, which included the common law as altered or modified on the 27th of Febru

ary, 1801.

The judgment of the court below is accordingly affirmed with costs, and the cause remanded for further proceedings.

State Courts may not issue the writ to officers of the United States government. McCluny v. Silliman, 6 Wheat 598.

The issue of mandamus lies in the discretion of the court, which will not issue it if the relator has been negligent. People v. Common Coun. cil, 78 N. Y. 56, nor to force a technical compliance with the law which will be in violation of its spirit. State v. Commissioners, 26 Kan. 419.

The writ of mandamus has never been issued to the President, and by the better rule it will not issue to the governor of a state. State v. Drew, 17 Fla. 67; People v. Morton, 156 N. Y. 136; contra, State v. Chase, 5 Ohio St. 528; People v. Bissell, 19 Ill. 229.

Other instances of the use of the write of mandamus treated in this collection are: Lewis v. Commissioners, 16 Kan. 102; Maynard v. Board, 84 Mich. 228; counting of votes: Stephenson v. Boards, 118 Mich. 396; placing of same on official ballot; People v. Mosher, 163 N. Y. 32; to appoint to office; Exparte Hennen, 13 Peters 230; to reinstate in office; Marbury v. Madison, 1 Cranch (U. S.) 137; to deliver commission; State v. Crawford, 28 Fla. 441; to countersign a commission; Speed v. Detroit, 97 Mich. 198; approval of official bond; Brown v. Turner, 70 N. C. 93, and State v. McAllister, 38 W. Va. 485; to force recognition as officer: Brown v. Russell, 166 Mass. 14; to put on eligible list: People v. Weber, 89 Ill. 347, and Hanna v. Loring, 84 Md. 179; to obtain possession of paraphernalia of office; Atty. Gen. v. Common Council, 58 Mich. 213; to obtain consideration of nominations to office: Atty. Gen. v. Common Council, 78 Mich. 545; to secure provision for the registration of voters: People v. Democratic Committee, 164 N. Y. 335; to reinstate in party office: State v. Supervisors, 21 Ohio 282; Fisk v. Jefferson Police Jury, 116 U. S. 131; Supervisors v. United States, 4 Wall. 435; the levy of a tax: Mullnix v. Mutual Life Ins. Co., 23 Col. 71; Harvey v. Philbrick, 40 N. J. L. 374; People v. Green, 58 N. Y. 295; People v. Palmer, 52 N. Y. 83; to pay an account

or warrant: People v. Com. Council, 112 Mich. 145; People v. Palmer, 154 N. Y. 153; to hold an election: Illinois State Board of Dental Examiners v. People, 123 Ill. 227, and Grider v. Tally, 77 Ala. 422; to grant a license: People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58 and Chicago &c R. R. Co. v. Minnesota, 134 U. S. 418; obedience to administrative order: Badger v. United States, 93 U. S. 599; State v. Ferguson, 31 N. J. L. 107; to force officers to act who claim to have resigned: Commonwealth v. Walton, 182 Pa. St. 373; Pennie v. Reis, 132 U. S. 464; In re Mahon, 171 N. Y. 263; pay. ment of a pension. See also United States v. Deuell, 172 U. S. 576; issue of a patent: Fox v. McDonald, 101 Ala. 51; administration of official oath: United States v. Black, 128 U. S. 40; to obey order of supervisor: Blue v. Beach, 155 Ind. 121; admission of child to school: County Commissioners of Talbot County v. County Commissioners of Queen Anne's County, 50 Md. 245; levy of tax: Mount Hope Cemetery v. Boston, 158 Mass. 509; transfer of property.

An instance of the action for the delivery of books and papers which resembles somewhat a mandamus is In re Guden, 171 N. Y. 529, supra.





Supreme Court of New York. January, 1841.

1 Hill 195.

H. M. Western moved for a certiorari, prohibition, mandamus, or some other writ, instrument, process, order or proceedings,' for the relief of the relator and other taxable inhabitants of the town of North Hempstead, Queens county, from the tax which the town collector was proceeding to collect by virtue of a warrant from the board of supervisors of the county.


The only remaining branch of this case is the motion of the relator for a writ of prohibition to the town collector to stay the levying of the tax. A writ of prohibition does not lie to a ministerial officer to stay the execution of process in his hands. It is directed to a court in which some action or legal proceeding is pending, and to the party who prosecutes the suit, and commands the one not to hold, and the other not to follow the plea. It stays both the court and the party from proceeding with the suit. The writ was framed for the purpose of keeping inferior courts within the limits of their own jurisdiction, without encroaching upon other tribunals. 2 Inst. 601; Vin. Ab. tit. Prohibition; and same title in Com. Dig., Bac. Ab. 7th Lon. ed., and Tomlin's Law Dict.; 3 Bl. Com. 111; see also Tomlin's Law Dict. tit. Consultation; and F. N. B. 116. Our statute also shows that the writ issues to a court and prosecuting party-not to a ministerial officer. 2 R. S. 587, 88 61, 65. In the People v. Works, 7 Wend. 486, although the motion for a prohibition seems to have been granted, the remarks of the chief justice are in perfect harmony with what has been said in this opinion in relation to the proper office of the writ; and that case must not be understood as having decided anything more than that the tax then under consideration was illegal. There is not the slightest foundation in the books for saying, that a prohibition may issue to a ministerial officer to stay the execution of process in his hands.

If the relator has suffered, or is in danger of suffering an injury, he is mistaken in supposing that we can grant the relief which he asks.

Motion denied.


Supreme Court of Michigan. January, 1894.

98 Mich. 360.

Motion by respondents to vacate order for writ of prohibition against the procedure of the common council in the investigation of charges preferred by the mayor against the city counselor of Detroit. Argued December 12, 1893. Denied January 5, 1894. The facts are stated in the opinion and in 97 Mich. 198.


The principal question in this case is the power of the council to remove the city counselor for cause, but two preliminary matters will be first determined.

1. It is suggested, rather than seriously insisted, by the learned counsel for the respondents, that the writ of prohibition does not lie in the present case, for the reason that the common council was proceeding in a political or administrative way, rather than in any other. They cite Mechem Pub. Off. SS 1019, 1020; High, Extra. Rem. SS 769, 783; Burch v. Hardwicke, 23 Grat. 51; People v. Dis. trict Court, 6 Colo. 534; Smith v. Whitney, 116 U. S. 167. The rule laid down by these learned authors is that the writ lies only to prevent the unauthorized exercise by courts and officers of judicial powers, and does not lie to restrain executive or ministerial action; and the above authorities, together with others, are cited in support of the proposition.

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The writ lies “to prohibit the exercise by an inferior tribunal or officer of judicial powers, with which he is not legally vested," and to prevent actions in excess of jurisdictions conferred by law, and not to regulate or control the manner in which a lawful jurisdiction


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