patent heretofore granted] for the same, and has complied with the requirements of the several acts of Congress and with the rules of the Patent Office prescribed in such cases; that his said application has been rejected by the Commissioner of Patents on appeal to him; and that he has filed in said office due notice to the Commissioner of Patents of this his appeal, accompanied with the reasons of appeal, and with certified copies of all the original papers and evidence in the case, all which will appear from the certificate of said Commissioner of Patents, hereto annexed.

And the said George Thompson prays that his said appeal may be heard and determined by your honorable court at such a time as may be appointed for that purpose; and that the Commissioner of Patents may be duly notified of the same, and directed in what manner to give notice thereof to the parties interested. GEORGE THOMPSON.

255. FORM OF CERTIFICATE OF COMMISSIONER.

PATENT OFFICE, WASHINGTON, D. C., July 17, 1869. I hereby certify that the above-named George Thompson has complied with the requisites of the law necessary to perfect his aforesaid appeal. SAM'L S. FISHER, Commissioner of Patents.

256. FORM OF NOTICE AND REASONS OF APPEAL.—

To the Commissioner of Patents:

George Thompson, of Boston, in the county of Suffolk, and State of Massachusetts, hereby gives notice that he has appealed from your decision rejecting his application for a patent [or for a reissue of a patent granted to him July 7, 1865] for improvement in velocipedes, and of this you are respectfully requested to take notice.

Accompanying this notice are certified copies of all the original papers and evidence in the case, and a petition addressed to the supreme court of the District of Columbia.

And the said George Thompson assigns the following reasons for appealing from the said decision of the Commissioner of Patents, viz:

The Commissioner erred in deciding that the said improvement was not patentable.

The Commissioner erred in deciding that the said invention was not new. GEORGE THOMPSON.

SEC.

XV. Mandamus to the Commissioner.

257. Mandamus a remedy against

public officers.

SEC.

the Commissioner of Pat

ents.

258. To compel the performance of 261. Jurisdiction of the supreme

ministerial duties.

259. Distinction between ministerial

acts and the ordinary dis

charge of official duties.

260. Principles applicable to heads of departments applied to

court of the District of Columbia.

262. Mandamus to Commissioner of

Patents.

263. Parties in mandamus.

264. Proceedings in mandamus.

257. MANDAMUS A REMEDY AGAINST PUBLIC OFFICERS. In order to maintain a system of government which will be able to secure to the citizen his rights, it is necessary to have persons appointed or chosen to administer the law. And when persons are thus clothed with the power, and have assumed the duties of a public officer, they have taken upon themselves. the obligation to perform those duties; and if they neglect or refuse to do so, any person whose rights are thereby injuriously affected is entitled to demand relief. The remedy provided by our system of law, as well as that of England, is a process issuing from the judicial branch of the government, which seeks to compel the officer to go forward and do that which is enjoined upon him by the position he holds. (Moses on Mandamus, 14.)

And generally, in all cases of omission or mistake, where there is no other adequate specific remedy, resort may be had to this high judicial writ. It not only lies to ministerial, but to judicial officers. In the former case

it contains a mandate to do a specific act; but in the latter only to adjudicate, to exercise a judgment, or discretion, upon a particular subject. (Ib.)

It may be stated as a general principle, that this writ is only granted for public persons, and to compel the performance of public duties. (3 Stephens's Nisi Prius, 2291.) It can be resorted to only in those cases where the matter in dispute, in theory, concerns the public, and in which the public has an interest. The degree of its importance to the public is not, however, scrupulously weighed. (1 Swift's Digest, 564.) A mandamus gives no right, not even a right of possession, but simply puts a man in a position which will enable him to assert his right, which in some cases he could not do without it. And "in order to lay the foundation for issuing a writ of mandamus, there must have been a refusal to do that which it is the object of the mandamus to enforce, either in direct terms, or by circumstances distinctly showing an intention in the party not to do the act required." (3 Stephens's Nisi Prius, 2292; Redfield on Railways, 441, note 5; Moses on Mandamus, 18.)

258. TO COMPEL THE PERFORMANCE OF MINISTERIAL DUTIES.-Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President in cases where the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific ministerial duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country

for remedy, and that mandamus is a proper remedy. (Moses on Mandamus, 63.)

It was held, in the case of Marbury v. Madison, that "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act, affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden, as, for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department." (1 Cranch, 137.)

The doctrine that mandamus lies on the application of a private individual, and for his benefit, to compel the head of a department to perform a mere ministerial duty, where that duty is plain, seems to have been fully maintained in the case of The Commissioners of the Land Office v. Smith, 5 Texas, 471.

259. DISTINCTION BETWEEN MINISTERIAL ACTS AND THE

ORDINARY DISCHARGE OF OFFICIAL DUTIES.-A distinction is made between the ministerial acts of one of the heads of department, and those duties required in the ordinary discharge of official duties, over which the officer is required to exercise judgment and discretion. While the former can be compelled by mandamus, the latter cannot. (Moses on Mandamus, 65.)

In the case of Decatur v. Paulding, the Supreme Court of the United States, in reversing the decision of the circuit court of the District of Columbia, say: "In the case of Kendall v. The United States, 12 Peters, 524, it was decided in this court that the circuit court for Washington county, in the District of Columbia, has the power to issue a mandamus to an officer of the federal Government, commanding him to do a ministerial act."***"The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress under which he is from time to time required to act. If he doubts, he has a right to call upon the Attorney General to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments, as well as for the President, unless their duties were regarded as executive, in which judgment and discretion were to be exercised. If a suit should come before the court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judg