Mandamus, being remedial, is not avail able to compel the performance of an act that will work public or private mischief, or to compel compliance with the strict let ter of the law in disregard of its spirit, or in aid of a palpable fraud, or to evade the payment of a just portion of a tax by taking advantage of a confessed mistake ; People v. Board, 137 N. Y. 201, 33 N. E. 145.
The remedy extends to the control of all in ferior tribunals, corporations, public officers, and even private persons in some cases. But more generally, the English court of king's bench, from which our practice on the sub ject is derived, declined to interfere by. man damus to require a specific performance of a contract when no public right was concern ed ; 6 East 356 ; Bacon, Ab. Mandamus; Town of Woodstock v. Gallup, 28 Vt. 587.
Mandamus may be granted by an appel late court to require a judge of the lower court to settle and allow a bill of exceptions ; Che Gong v. Stearns, 16 Or. 219, 17 Pac. 871; Poteet v. County Com'rs, 30 W. Va. 58, 3 S. E. 97 ; Petition of Chateaugay Ore & Iron Co., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508. It will also lie to compel an inferior court to exercise a discretion ; Citizens' Bank of Louisiana v. Webre, 44 La. Ann. 1081, 11 South. 706 ; but not to compel the court be low to decide in a particular way, or to op erate as a substitute for an appeal or writ of error, even if none is given by law ; In re Rice, 155 U. S. 396, 15 Sup. Ct. 149, 39 L. Ed. 198.
It is a proper remedy to compel the per formance of a specific act where the act is ministerial in its character ; Moraw. Priv. Corp. 15 ; Roberts v. U. S., 176 U. S. 230, 20 Sup. Ct. 376, 44 L. Ed. 443 ; Borough of Un iontown v. Com., 34 Pa. 293 ; State v. Canal Co., 26 Ga. 665 ; State v. County Judge, 7 Ia. 186 ; State v. Bailey, id. 390 ; but where the act is of a discretionary ; Brashear v. Mason, 6 How. (U. S.) 92, 12 L. Ed. 357 ; Barrows v. Medical Society, 12 Cush. (Mass.) 403 ; Auditorial Board v. Hendrick, 20 Tex. 60 ; Magee v. Board, 10 Cal. 376 ; People v. Mar tin, 145 N. Y. 253, 39 N. E. 960 ; People v. Inspectors of State. Prison, 4 Mich. 187; State v. Chase, 5 Ohio St. 528 ; or judicial nature ; Merced Mining Co. v. Fremont, 7 Cal. 130 ; Goheen v. Myers, 18 B. Monr. (Ky.) 423, 7 E. & B. 366 ; it will lie only to compel ac tion generally ; Ex parte Mahone, 30 Ala. 49, 68 Am. Dec. 111; State v. Cramer, 96 Mo. 75, 8 S. W. 788 ; Satterlee v. Strider, 31 W. Va. 781, 8 S. E. 552 ; Ramagnano v. Crook, 85 Ala. 226, 3 South. 845 ; State v. Com'rs,
119 Ind. 444, 21 N. E. 1097; Shine v. R. Co., 85 Ky. 177, 3 S. W. 18 ; State v. Edwards, 51 N. J. L. 479, 17 Atl. 973 ; Com. v. McLaugh lin, 120 Pa. 518, 14 Atl. 377 ; and where the necessity of acting is a matter of discretion, it will not lie even to compel action ; Bras hear v. Mason, 6 How. (U. S.) 92, 12 L. Ed. 357; State v. Floyd County Judge, 5 Ia. 380.
A class of cases in which this distinction is constantly drawn in question is where a mandamus is applied for to control the let ting of public or municipal contracts, and it is the general rule that the remedy will not be applied to compel a municipal corporation to enter into a contract with one who shows himself to have been the lowest bidder ; Times Pub. Co. v. City of Everett, 9 Wash.
518, 37 Pac. 695, 43 Am. St. Rep. 865. The provision that the contract shall be let to the lowest responsible bidder is mandatory, but the municipal board has a discretion in determining the question of responsibility, and their decision will not be reviewed on mandamus even though erroneous ; Douglass v. Com., 108 Pa. 559 ; Kelly v. City of Chi cago, 62 Ill. 279 ; Hoole v. Kinkead, 16 Nev. 217; State v. McGrath, 91 Mo. 386, 3 S. W. 846 ; contra, Boren v. Com'rs, 21 Ohio St. 311; People v. Com'rs of Buffalo County, 4 Neb. 150 ; in other cases it is held that where the contract has been entered into with an other and expense incurred, a mandamus will not be issued; People v. Contracting Board, 27 N. Y. 378 (and see People v. Campbell, 72 N. Y. 496 ; People v. Contracting Board, 46 Barb. [N. Y.] 254); Talbot Paving Co. v. Com mon Council, 91 Mich. 262, 51 N. W. 933 ; other cases, again, hold that, the statutes being for the public benefit, the relators have not a clear legal right ; State v. Board of Education, 24 Wis. 683 ; Madison v. Harbor Board of Baltimore City, 76 Md. 395, 25 Atl. 337; Free Press Ass'n v. Nichols, 45 Vt. 7 ; Welch v. Board of Sup'rs, 23 Ia. 203. The writ is also refused where the matter is left entirely to the discretion of the authorities, with no provision about the lowest bidder ; Mayo v. County Com'rs of Hampden, 141 Mass. 74, 6 N. E. 757; State v. Lincoln Coun ty, 35 Neb. 346, 53 N. W. 147; Mills Pub. Co. v. Larrabee, 78 Ia. 97, 42 N. W. 593 ; People v. Croton Aqueduct Board, 49 Barb. (N. Y.) 259. Where, before the application, the work was readvertised and the same person made a lower bid, under which he obtained the con tract, a mandamus was refused ; U. S. v. La mont; 155 U. S. 303, 15 Sup. Ct. 97, 39 L. Ed. 160.