MANDAMUS. This is a high prerogative writ, usually issuing out of the highest court of general jurisdiction in a state, in the name of the sovereignty, directed to any natural person, corporation, or inferior court of ju dicature within its jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their flee or duty. 3 Bla. Com. 110; 4 Bacon, Abr. 495; per Marshall, C. J., in Marbury v. Madi son, 1 Cra. 137, 168, 2 L. Ed. 60. See State v. Burdick, 3 Wyo. 588, 28 Pac. 146. It is a common-law writ with which equity has nothing to do ; Gay v. Gilmore, 76 Ga. 725.
It is an extraordinary remedy in cases where the usual and ordinary modes of pro ceeding are powerless to afford remedies to the parties aggrieved, and when, without its aid, there would be a failure of justice; Vir ginia, T. & C. Steel & Iron Co. v. Wilder, 88 Va. 942, 14 S. E. 806. It confers no new au thority and the party to be coerced must have the power to perform the act; Commis sioners of Taxing Dist. v. Loague, 129 U. S. 493, 9 Sup. Ct. 327, 32 L. Ed. 780. Manda mus has been termed a "criminal process rel ative to civil rights ;" 3 Brev. 264.
Its use is defined by Lord Mansfield in Rex v. Barker, 3 Burr. 1265: "It was intro duced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions when the law has established no specific remedy, and where, in justice and good government there ought to be one." "If there be a right, and no other specific remedy, this should not be denied." The same principles are declared by Lord Ellenborough, in Rex v. Archbishop Canterbury, 8 East 219. See 6 Ad. & E. 321. The writ of mandamus is the supple mentary remedy when the party has a clear right, and no other appropriate redress, in order to prevent a failure of justice. 12 Petersd. Abr. 438 (309). is the absence of a specific legal remedy which gives the court jurisdiction ; 2 Selw. N. P. Mandamus; Com. v. Common Councils, 34 Pa. 496; Baker v.
Johnson, 41 Me. 15 ; but the party must have a. perfect legal right ; Williams v. Cooper Court of Common Pleas Judge, 27 Mo. 225 ; Board of Trustees of Franklin Tp. v. State, 11 Ind. 205 ; People v. Thompson, 25 Barb. (N. Y.) 73 ; State v. Jacobus, 26 N. J. L. 135 ; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398 ; and there must be a positive ministerial duty to be performed and no other appropriate remedy; State v. Knight, 31 S. C. 81, 9 S. E. 692; Shine v. R. Co., 85 Ky. 177, 3 S. W. 18; State v. Kinkaid, 23 Neb. 641, 37 N. W. 812.
Under the English system this writ ac quired, and may probably be still said to re tain, its prerogative character ; but in the United States it is becoming more and more assimilated to an ordinary remedy, to the use of which the parties are entitled as of right. It was in this sense that Taney, O. J., char acterized it in modern practice as "nothing more than an action at law between the par ties"; Kentucky v. Dennison, 24 How. (U. S.) 66, 16 L. Ed. 717 ; see, also, Gilman v. Bassett, 33 Conn. 298 ; High, Extr. Leg. Rem. § 4. Swift v. State, 7 Houst. (Del.) 338, 6 Atl. 856, 32 Atl. 143, 40 Am. St. Rep. 127. There is a tendency, however, in some states to adhere to the prerogative idea ; People v. Board of Metropolitan Police, 26 N. Y. 316 ; City of Ottawa v. People, 48 Ill. 240. Though in Illinois the prerogative idea seems to have been lost under the statutory use of the writ, while the discretionary character remains ; People v. Weber, 86 Ill. 283, It may be said to remain in this country an extraordinary remedy at law in the same sense that in junction is an extraordinary remedy in equi ty ; High, Extr. Leg. Rem. § 5. The injunc tion is preventive and conservative, its ob ject being to preserve matters in statu quo. Mandamus is remedial, tending to compel action and redress past grievances ; id. § 6, and cases cited. Mandamus cannot be used as a preventive remedy to take the place of an injunction ; Legg v. City of Annapolis, 42 Md. 203.