The supreme court of the United States has no power to control by mandamus the discretion of the circuit court in granting or refusing a supersedeas upon an appeal to the circuit court of appeals from an inter locutory order granting or continuing an injunction; In re Haberman Mfg. Co., 147 U. S. 525, 13 Sup. Ct. 527, 37 L. Ed. 266; nor can it compel the circuit court of appeals to receive and consider new proofs in an ad miralty appeal in a cause within the legiti mate jurisdiction of that court ; In re Hawk ins, 147 Ti. S. 486, 13 Sup. Ct. 512, 37 L. Ed. 251; but it will issue to compel compliance with a mandate of the supreme court of the United States, without regard to the value of the matter in dispute; City Bank v. Hunter, 152 U. S. 512, 14 Sup. Ct. 675, 38 L. Ed. 534.
The circuit courts of the 'United States may also issue writs of mandamus ; but their power in this particular is confined exclusive ly to those cases in which it may be neces sary to the exercise of their jurisdiction; McIntire v. Wood, 7 Cra. (U. S.) 501, 3 L. Ed. 420.
The mode of proceeding in obtaining the writ is : first, to demand of the party to perform the act. And it would seem that the party should be made aware of the purpose of the demand ; 3 Ad. & E. 217, 477. The refusal must be of the thing de manded, and not of the right merely ; 5 B. & Ad. 978. The refusal should be absolute and unqualified ; but it may be by silence only. But the party should understand that he is required to perform the duty upon pain of the legal redress being resorted to with out further delay ; 4 Railw. Cas. 112. But any exception to the demand should be taken as a preliminary question ; 10 Ad. & E. 531. A formal demand and refusal have been held not a necessary preliminary to the filing of a Petition for mandamus to compel the per formance of a public duty which the law re quires to be done; People v. School Dist., 127 111. 613, 21 N. E. 187.
The application for a mandamus may be by motion in court, and the production of ex parte affidavits, in support of the facts alleged ; in which case an alternative writ issues, as matter of course, generally, and the case is heard upon the excuse alleged in the return to the alternative writ ; see Maddox v. Graham, 2 Metc. (Ky.) 56. Or the party may apply for the writ by formal petition, setting forth the grounds in detail, in which case the merits of the question are determined upon the traverse of the petition, instead of the traverse of the return to the alternative writ; State v. Union Tp., 9 Ohio $t. 599. In the.latter case a rule is granted to show cause why a mandamus shall not is sue ; -upon the decision of this rule, an al ternative writ would issue at common law and upon failure to obey this or make return of an adequate legal excuse, the peremptory writ followed. This practice is entirely changed by statute, see infra, but the rule to show cause is in many states the usual pro ceeding. And in either form, if the applica tion prevails, a peremptory mandamus is sues; the only proper or admissible return to which is a certificate of compliance with its requisitions, without further excuse or delay ; 1 Q. B. 616; Chance v. Temple, 1 Ia. 179.
The peremptory writ need not precisely fol low the alternative writ in matters of de tail ; State v. Weld, 39 Minn. 426, 40 N. W. 561. The return to an alternative writ should be made with the greatest possible certainty, as at common law the return .can not be traversed; Prospect Brewing Co.'s Pe tition, 127 Pa. 523, 17 Atl. 1090; Johnson v. Reichert, 77 Cal. 34, 18 Pac. 858.
If the relator regards the return as insuffi cient in law, he should demur, or, if untrue in fact, join issue; City of Cleveland v. U. S., 127 Fed. 667, 62 C: C. A. 393. The prac tice varies greatly in different jurisdictions, though resting in all cases upon the same general principles, as to all which see gen erally, High, Extr. Leg. Rem. ch. 8.
The English practice is, if the first writ is denied, even on the ground of defects in the affidavits, not to permit a second ap plication to be made; 8 Ad. & E. 413 ; so also, if it fail for other defects of form. But a more liberal practice obtains in the American courts; Redf. Railw. § 190.
By the Common-Law Procedure Act, 17 & 18 Vict. c. 125, provision is made for stat utory mandamus, incidental to an action, brief in form and enforceable by attach ment, which, if awarded, will issue peremp torily in the first instance. It has been held that a plaintiff could not under this act en force specific performance of a contract ; but that the act contemplated a public duty in which the plaintiff among others was in terested, and not a private obligation which the plaintiff alone could enforce ; but under the judicature acts, it is allowable for the court by an interlocutory order to grant a mandamus in any cases in which it shall appea'r just and convenient ; Mozl. & W. The prerogative writ of mandamus is still retained in the English practice; but it is obvious that the foregoing statute must have very essentially abfidged its use, as well as that of decrees in chancery for spe cific performance. See 8 E. & B. 512; Redf. Railw. § 190, pl. 8.
The proceedings are reviewable by writ of error ; Carter County v. Schmalstig, 127 Fed. 126, 62 C. C. A. 78.
Controverted questions of fact, arising in the trial of applications for mandamus in the English practice, are referred to the determination of a jury ; 8 El. & B. 512; 1 East 114. By the American practice, quest tions of fact, in applications for mandamus, are more commonly tried by the court; Mad dox v. Graham, 2 Mete. (Ky.) 56. See Angell •& Ames, Corp.; High, Extra. Leg. Rem.; 16 It J. L. J. 138.
Costs rest in the discretion of the court. In the English courts they are allowed when the application fails, but not always when it prevails ; Redf. Railw. § 159. The more just rule in such cases is to allow costs to the prevailing party, unless there is some special reason for denying them; and this rule now generally -prevails ; 8 Ad. & E. 901, 905 ; 5 id. 804; 1 Q. B. u36, 751 ; 6 E. L. & Eq. 267.
See DE PEOCEDENDO AD JUDICIUM.