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ests, who gave notice that they intended to take certain lands, in order to ascertain if they could be obtained at a certain price, and finding, by the claim of the land-owners, that the land could not be obtained, so as to bring the amount to be expended within the legislative limit, and the funds at the disposal of the *commissioners, abandoned their notice, could not be compelled by mandamus to take the land, such commissioners acting in a public capacity, although the rule is otherwise as to private railway companies.5

4. Public duties of corporations have been enforced by mandamus, as repairing the channel and banks of a river, which, by their charter, they had been permitted to alter. Also to make alterations in the sewers of a city; and where, in the act of parliament, this duty is defined, " to make such alterations and amendments in the sewers as may be necessary in consequence of the floating of the harbor," it was held this was a proper form for the command of the writ. Also to restore a highway, intersected by a railway, to its former width.8

5 Reg. v. Commissioners of Woods and Forests, 15 Q. B. 761; Ante, § 88. Reg. v. Bristol Dock Company, 1 Railw. C. 548, 2 Q. B. 64, 2 Railw. C. 599. A return that the law imposed no such duty, but that they had performed it, "as near as circumstances permitted," is insufficient, as being a traverse of the law, or an evasion of the writ. Reg. v. Caledonian Railw., 16 Q. B. 19; s. c. 3 Eng. L. & Eq. 285.

7 The King v. The Bristol Dock Company, 6 Barn. & Cress. 181. Mandamus is the appropriate remedy to compel a delinquent municipal corporation to discharge its liabilities under a subscription to stock of, or a loan of its credit to, a railroad company. Commonwealth v. Perkins, 43 Penn. St. 400. A declaration for a mandamus to levy a rate to pay a debt is good, though it does not state the amount of the debt. Ward v. Lowndes, 6 Jur. N. S. 247; s. c. 29 L. J., Q. B. 40; Ellis & Ellis, 940. But see McCoy v. Harnett County, 5 Jones Law, 265. But in Austin, ex parte, 13 Law Times, N. S. 443, it was held that the court will not in the first instance grant a rule for a mandamus calling on a public order to make a rate for the payment of costs due to a successful appeal against a rate which had been quashed at quarter sessions. After the order for payment of costs is found good, if it is still disobeyed, a mandamus may be called for. Austin, ex parte, supra. See People v. Mead, 24 N. Y. 114.

Mandamus will lie to compel a town committee to pay their damages to landowners for lands taken for a highway. Minhinnah v. Haines, 5 Dutch, 388; State v. Keokuk, 9 Iowa, 438. And see State v. County Judge, 12 Iowa, 237; State v. Davenport, id. 335; Knox County v. Aspinwall, 24 How. (U. S.) 376; Uniontown v. Commonwealth, 34 Penn. St. 293; Commonwealth v. Pittsburg, id. 496.

8 Reg. v. Birmingham & Gloucester Railw., 2 Railw. C. 694; 2 Q. B. 47; Reg.

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5. In the English practice, questions of fact, arising on a mandamus, are tried by a jury. So a railway company may, by mandamus, be required to establish an uniform rate of tolls.10 And also to proceed in the appraisal of land damages, after giving notice to treat. So the sheriff or officer who holds the inquisition, may be compelled to proceed where he has no legal excuse, as where such officer assumed to direct a verdict against the claim, on the ground the applicant could not recover.12

6. But where the statute in terms takes away the remedy by certiorari, the court will not indirectly accomplish the same thing by mandamus.13

7. A mandamus was awarded requiring the presiding officer to allow costs in a case before him,14 for assessing land damages, including witnesses, attendance by attorney at the inquest, v. Manchester & L. Railw., 1 Railw. C. 523; 3 Q. B. 528; 2 Railw. C. 711. But in some cases it is requisite the duty should be strictly defined. Reg. v. The Eastern Counties Railw., 3 Railw. C. 22; 2 Q. B. 569.

9 Reg. v. London & Birmingham Railw., 1 Railw. C. 317; Reg. v. Manch. & Leeds Railw., 3 Q. B. 528; s. c. 2 Railw. C. 711; Reg. v. Newcastle-uponTyne, 1 East, 114.

10 Clarke v. L. & N. Union Canal, 6 Q. B. 898. But in this case judgment was given for defendant, by reason of the " insufficiency of the writ."

11 Ante, §§ 88, 99, et seq. and cases there cited.

12 Walker v. The London & Blackwall Railw., 3 Q. B. 744. In Carpenter v. Bristol, 21 Pick. 258, which was where county commissioners refused to assess damages sustained in consequence of constructing a railway, on the ground that the party applying did not own the land, and also refused to grant a warrant for a jury to revise their judgment, as required by R. S. ch. 39, § 56: Held, that the party was entitled to a jury to revise, and that a mandamus would lie to compel the commissioners to grant a warrant.

The court say, "Where application was made to county commissioners to estimate damages caused by the laying out of a railway, turnpike, or highway, the duty required of them would be a judicial duty. If they refused or neglected to perform it, this court would issue a mandamus commanding them to do it; that is, to exercise their judgment on the matter. But when they had performed this duty, it being within their discretion, no other tribunal would have a right to interfere with or complain of the manner in which they had performed it." So also in Chicago, Burlington, & Quincy Railw. v. Wilson, 17 Ill. 123, it was held, that upon application to a judge, to appoint commissioners to condemn land for the use of a railway, he is compellable to act, if a case is made under the statute. His duty is ministerial, and not judicial, and a mandamus was accordingly awarded.

13 The King v. The Justices of West Riding of Yorkshire, 1 Ad. & Ell. 563. 14 The King v. The Justices of the City of York, 1 Ad. & Ell. 828; Reg. v. Sheriff of Warwickshire, 2 Railw. C. 661.

conferences and briefs, but not the expenses of surveyors, as such.

8. And where the commissioners refused to assess the value of land taken for a railway, on the ground that the prosecutor had no title to the same, it was held that he is entitled to have their judgment revised by a jury, and a mandamus will lie, on his behalf, to compel the commissioners to grant a warrant for a jury.15 And a mandamus will issue, at the suit of supervisors of a town, to compel a railway to build a highway,16 or bridge," for public use. 9. No better general rule can be laid down upon this subject, than that where the charter of a corporation, or the general statute in force, and applicable to the subject, imposes a specific duty, either in terms or by fair and reasonable construction and implication, and there is no other specific or adequate remedy, the writ of mandamus will be awarded. But if the charter, or the general law of the state, affords any other specific and adequate remedy, it must be pursued.18

10. So, too, it must be a complete and perfect legal right, or the court will not award the writ.19 And the writ of mandamus is

15 Carpenter v. Bristol, 21 Pick. 258. See Smith v. Boston, 1 Gray, 72; s. p. Fotherby v. Met. Railw., Law Rep. 2 C. P. 188.

16 Whitmarsh Township v. Phil., Ger., & N. Railw. Co., 8 Watts & Serg. 365. 17 Cambridge & Somerville v. Charlestown Branch Railw., 7 Met. 70.

18 Rex v. Nottingham Old Waterworks, 6 Ad. & El. 355; Dundalk Western Railw. v. Tapster, 1 Q. B. 667; Corregal v. London & Blackwall Railw., 3 Railw. C. 411; The People v. The Corporation of New York, 3 Johns. Cas. 79. It seems to be considered, that quo warranto will not lie to an eleemosynary corporation, and therefore mandamus is the necessary remedy to correct abuses. 2 Kyd on Corporations, 337, n. a. In King v. Dr. Gower, 3 Salk. 230, it was held mandamus was not the proper remedy to try the right. Rex v. Bank of England, Douglas, 524; Shipley v. Mechanics' Bank, 10 Johns. 484; The State v. Holiday, 3 Halst. 205: Asylum v. Phenix Bank, 4 Conn. 172. Unless the rights of the stockholders in this respect are restricted by the charter of the corporation, or by its rules and by-laws passed in conformity thereto, stockholders have a right of access at reasonable hours to the proper sources of information, to know how the affairs of the corporation are conducted; and if such access is refused to them, mandamus is the appropriate remedy to enforce this right. Cockburn v. Union Bank, 13 La. Ann. 289. See also People v. Haws, 34 Barb. 69; Lamb v. Lynd, 44 Penn. St. 336. But see Briggs, ex parte, 1 Ellis & Ellis, 881; s. c. 28 L. J., Q. B. 272, where the assertion of the right to inspect accounts is somewhat modified.

19 Rex v. Archbishop of Canterbury, 8 East, 213; People v. Collins, 19 Wend. 56; 1 Wend. 318; Napier, ex parte, 18 Q. B. 692; s. c. 12 Eng. L. & Eq. 451.

never awarded to compel the officers, or visitors of a corporation, * who have discretionary powers, to exercise such powers according to the requisitions of the writ, but to compel them to proceed and exercise them according to their own judgment, in cases where they refuse to do so.20 And it may be laid down as a general rule, that where any officers, or boards, have a legitimate discretion, and are acting within their appropriate jurisdiction, they cannot be controlled in their action by mandamus, issuing from a superior court.21 If the visitor or trustee be himself the party interested in the exercise of the function, it is said to form an exception.22

20 Rex v. Bishop of Ely, 1 Wm. Black. 81; Reg. v. Dean and Chapter of Chester, 15 Q. B. 513; Appleford's case, 1 Mod. 82. Lord Hale's opinion cited with approbation by Lord Campbell, Ch. J., 15 Q. B. 520; Rex v. Bishop of Ely, 2 T. R. 290; Murdock's Appeal, 7 Pick. 322; Parker, Ch. J., Attala County v. Grant, 9 Sm. & Mar. 77; Towle v. The State, 3 Florida, 202; 2 Q. B. 433; Ex parte Benson, 7 Cow. 363, and cases cited, 3 Binney, 273; 5 id. 87; 6 id. 456; 5 id. 536; 2 Penn. 517; 5 Wend. 114; 10 Pick. 244; 13 Pick. 225; 24 id. 343; People v. Columbia C. P., 1 Wend. 297.

But the officers of a municipal corporation will be compelled to hold a court for the revision of the list of burgesses, notwithstanding the time for holding the same, in compliance with the terms of the statute, had elapsed, and notwithstanding the mayor, at the time of granting the mandamus, was not the same person who acted at the court. Regina v. Mayor and Assessors of Rochester,

7 El. & Bl. 910; s. c. 30 Law Times, 73.

But it was held, in Heffner v. Commonwealth, 28 Penn. St. 108, that the plaintiff in the proceeding must show a specific legal right, which had been infringed; and that the damage, which the petitioner suffered, in common with other citizens, by the neglect of a municipal corporation to lay out an alley, although, by reason of his land lying adjacent, he was specially exposed to suffer loss by the neglect, would not entitle him to demand the writ: that the injury sustained by the petitioner must not only be different in amount or degree, but must be different in kind from that which falls upon the public in general, by the grievance complained of, to entitle him to the writ. The suit should be prosecuted by some public officer, for the redress of an omission of duty affecting only the public interest and that of individuals incidentally.

So, also, where the party is entitled to costs in a proceeding before commissioners to estimate land damages against a railway, unless the duty to award such costs is one which is plain and obvious, it will not be enforced by writ of mandamus. Morse, Petitioner, 18 Pick. 448. And the court will not grant a mandamus requiring parish officers to receive a pauper in obedience to an order of removal, the proper course being by indictment. Downton, ex parte, 2 El. & Bl. 856. 21 Waterbury v. Hart., Prov., & F. Railw. Co., 27 Conn. 146.

22 Reg. v. Dean and Chapter of Rochester, 17 Q. B. 1; s. c. 6 Eng. L. & Eq. 269.

* 11. But in a recent case,23 it is said to be an inflexible rule of law, that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie, unless the election can be shown to be merely colorable.

But where the right is clear, or where the old board refuse to surrender to the newly elected one, without any color of excuse, the new board may be put in possession of the insignia or functions of office by writ of mandamus, or, as held in some of the states, by bill in equity.24

12. And this is the proper remedy to compel a corporation to allow the transfer of stock upon their books,25 or the company may be compelled to pay damages for such refusal by an action at law.25

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§ 156. 1. It seems to be an unquestionable answer to the writ of mandamus to compel the company to complete their road, that the time for taking lands under the act had expired at the time of issuing the alternative writ, so that it had become * impossible to build the road, as required in the writ. But where, at the

23 Reg. v. Mayor, &c. of Chester, 5 El. & Bl. 531; s. c. 34 Eng. L. & Eq. 59. 24 Dart v. Houston, 22 Ga. 506.

25 Helm v. Swiggett, 12 Ind. 194. But where a shareholder executed a transfer of his shares, which he took together with the certificate of his shares to the company's office for registration, and left the transfer, but refused to leave the certificate for the inspection of the directors, it was held that the court would not compel the company to register the transfer. East Wheal Martha Mining Company in re, 33 Beav. 119.

Reg. v. London & N. W. Railw., 16 Q. B. 864; s. c. 6 Eng. L. & Eq. 220,

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