compliance with the strict letter of the law in disregard of its spirit, or where its issuance would injuriously affect the public interests, or compel disobedience of an injunction issued by a court having jurisdiction.10 The writ will not issue commanding an officer to do that which it is not within his power to do," nor where the doing of the act requires the co-operative action of a third person, not joined as a party.12 It will be refused if it apthat it would be fruitless or useless to issue it, or that doing pears so will result in no benefit to relator.13 It will not issue against a public officer where it is in effect a suit against the state.14 County v. Mentor Tp., 94 Mich. 386, 54 N. W. 169; People v. Board of Assessors of Brooklyn, 137 N. Y. 201, 33 N. E. 145. * State v. Beck, 25 Nev. 105, 57 Pac. 935; People v. Board of Assessors of Brooklyn, 137 N. Y. 201, 33 N. E. 145. 9a Effingham v. Hamilton, 68 Miss. 523, 10 So. 39. 10 Wilmarth v. Ritschlag, 9 S. D. 172, 68 N. W. 312; Atchison, T. & S. F. R. Co. v. Jefferson County Com'rs, 12 Kan. 127. Compare Quan Wo Chung & Co. v. Laumeister, 83 Cal. 384, 23 Pac. 320. 11 Bates v. Porter, 74 Cal. 224, 15 Pac. 732; Heumeister v. Porter (Cal.) 16 Pac. 187; Rice v. Walker, 44 Iowa, 458; Chosen Freeholders of Ocean v. Vanarsdale, 42 N. J. Law, 536; Warner v. Reading, 46 N. J. Law, 519. See, also, Ackerman v. Desha County, 27 Ark. 457. Compare People v. Bender, 36 Mich. 195. Paul v. Street & Sewer Committee, 56 N. J. Law, 48, 27 Atl. 799. Where no appropriation has been made for public improvement which it was duty of respondent to make. Rice v. Walker, 44 Iowa, 458. If the officer has put it out of his power to do his duty, he may be liable in damages to one prejudiced by his acts, but mandamus will not lie. People v. Solomon, 54 Ill. 39. Where officer on making return to alternative writ did not disclose his inability to perform, the court held him in contempt for failure to obey peremptory writ. 12 State v. Cavanac, 30 La. Ann. 237; Ball v. Lappius, 3 Or. 55. 13 State v. Atchison, T. & S. F. R. Co., 60 Kan. 858, 57 Pac. 106. As where the writ is sought to secure information for a board that has met, performed its functions and passed out of existence. Cristman v. Peck, 90 Ill. 150. Or a school term has expired before the application to compel the reinstatement of an expelled scholar could be heard. 14 State v. Burke, 33 La. Ann. 498; Marshall v. Clark, 22 Tex. 23; Miller v. State Board of Agriculture, 46 W. Va. 192, 32 S. E. 1007; Ottawa County v. Aplin, 69 Mich. 1, 36 N. W. 702. § 1108. Character of duty sought to be coerced. To authorize the writ, the duty must be mandatory,15 and the act sought to be coerced, ministerial in its nature.16 If the officer or governmental agency sought to be coerced is vested by law with discretionary powers as to the doing or not doing of the act sought to be coerced, or the manner of doing it, the writ will not issue,1 nor will it lie to review or rescind any action already taken 15 People v. Bell, 4 Cal. 177; People v. Guggenheimer, 28 Misc. 735, 59 N. Y. Supp. 913; State v. Hobart, 12 Nev. 408; People v. State Auditors, 42 Mich. 422; Will County Sup'rs v. People, 110 Ill. 511. State v. Fitzpatrick, 47 La. Ann. 1329, 17 So. 828. Where an ordinance merely "authorizes," but does not make it the duty of an officer to do a certain thing, mandamus will not issue to compel him to do what he is authorized to do. 16 Board of Liquidation v. McComb, 92 U. S. 531; Roberts v. United States, 176 U. S. 221; Kimberlin v. Commission to Five Civilized Tribes, 104 Fed. 653; Kuechler v. Wright, 40 Tex. 601; Lord v. Bates, 48 S. C. 95, 26 S. E. 213; Ex parte Lynch, 16 S. C. 32; State v. Police Jury of St. Charles, 29 La. Ann. 146; State v. Judge of Twenty-second Judicial Dist. Ct., 48 La. Ann. 847, 19 So. 946; State v. Johnson, 28 La. Ann. 932; Bryan v. Cattell, 15 Iowa, 538; Johnson v. Campbell, 39 Tex. 83; Bledsoe v. International R. Co., 40 Tex. 537. Marcum v. Ballot Com'rs, 42 W. Va. 263, 36 L. R. A. 296. "A ministerial act or duty is one which is to be performed under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to or exercise of the judgment of the one doing it upon the propriety of the act's being done." 17 Black v. Auditor, 26 Ark. 237; McMillen v. Smith, 26 Ark. 613; Riverside County v. San Bernardino County, 134 Cal. 517, 66 Pac. 788; Boyne v. Ryan, 100 Cal. 265, 34 Pac. 707; People v. Bell, 4 Cal. 177; American Casualty Ins. & Security Co. v. Fyler, 60 Conn. 448; McCoy v. State, 2 Marv. (Del.) 543, 36 Atl. 81; Hastings v. Henry, 1 Marv. (Del.) 287, 40 Atl. 1125; Patterson v. Taylor, 98 Ga. 646, 25 S. E. 771; Booe v. Kenner, 20 Ky. L. R. 1343, 49 S. W. 330; Gohen v. Myers, 57 Ky. (18 B. Mon.) 423; State v. Police Jury of St. Charles, 29 La. Ann. 146; State v. Mount, 21 La. Ann. 369; State v. Warmoth, 23 La. Ann. 76; People v. Auditor General, 36 Mich. 271; People v. Judge of Monroe Circuit, 36 Mich. 274; People v. State Land Office Com'rs, 26 Mich. 146; People v. Regents of University, 30 Mich. 473; Reddick v. People, 82 Ill. App. 85; People v. Williams, 55 Ill. 178. Compare Village of Glencoe v. People, 78 Ill. 382; State v. Robinson, 1 Kan. 188; State v. Justices of Howell County Ct., 58 Mo. 583; Shober v. Cochrane, 53 Md. 544; Hart v. Folsom, 70 N. H. 213, 47 Atl. 603; People v. Scully, 23 Misc. 732, 53 N. Y. Supp. 125; Ex parte Black, 1 Ohio St. 30; Rollersville & P. Free Turnpike which involved the exercise of discretionary powers,18 though it has been said that the officer's judgment as to the extent of his discretion under the law, and the matters on which it may be exercised, is reviewable upon mandamus. 19 On the other hand, where it is the legal duty of an officer, or governmental agency, to exercise their discretion with reference to a particular matter, mandamus will lie to compel the exercise of the discretion, though not in any way to control it.20 Ordinarily it will issue Road Com'rs v. Sandusky County Com'rs, 1 Ohio St. 149; Everding v. McGinn, 23 Or. 15, 35 Pac. 178; Bledsoe v. International R. Co., 40 Tex. 537; Glasscock V. General Land Office Com'r, 3 Tex. 51; Bracken v. Wells, 3 Tex. 88; Meyer v. Carolan, 9 Tex. 250; State v. Washington County Sup'rs, 2 Chand. (Wis.) 247; Runkle v. Com. 97 Pa. 328; Patterson v. School Directors of Cecil, 24 Pa. Co. Ct. R. 574. See, also, Com. v. City of Philadelphia, 38 Wkly Notes Cas. 426, 35 Atl. 195; State v. State Board of Land Com'rs, 7 Wyo. 478, 53 Pac. 292. People v. Casey, 66 App. Div. 211, 72 N. Y. Supp. 945. Examination of candidates for police force as to physical qualifications involves exercise of judicial discretion which is not subject to control or review in mandamus proceedings. State v. Cheetham, 20 Wash. 64, 54 Pac. 772. "To examine and audit certain unpaid claims" vests the officer with quasi-judicial powers and functions which cannot be controlled by mandamus, hence writ will not lie to compel him to issue a warrant for claim rejected by him. 18 Kimberlin V. Commission to Five Civilized Tribes, 104 Fed. 653; Jacobs v. San Francisco Sup'rs, 100 Cal. 121, 34 Pac. 630; People v. Chapin, 104 N. Y. 96, 10 N. E. 141; State v. Fire Com'rs of Cleveland, 26 Ohio St. 24; Tilden v. Sacramento County Sup'rs, 41 Cal. 68; Hayes v. Morgan, 81 Ill. App. 665; State v. Hastings, 10 Wis. 518; State v. Young, 84 Mo. 90; State v. Chittenden, 112 Wis. 569, 88 N. W. 587; State v. McMillan, 52 S. C. 60, 29 S. E. 540; Marcum v. Ballot Com'rs of Lincoln, 42 W. Va. 263, 26 S. E. 281, 36 L. R. A. 296; State v. Rice, 32 S. C. 97, 10 S. E. 833; Auditorial Board v. Hendrick, 20 Tex. 60; Weeden v. Town Council of Richmond. 9 R. I. 128; Jordan v. Board of Education, 14 Misc. 119, 35 N. Y. Supp. 247; Thurston v. Hudgius, 93 Va. 780, 20 S. E. 966. 19 State v. Hastings, 10 Wis. 518. 20 Kimberlin v. Commission to Five Civilized Tribes, 104 Fed. 653; Taylor v. Kolb, 100 Ala. 603, 13 So. 779; Tilden v. Sacramento County Sup'rs, 41 Cal. 68; Reddick v. People, 82 Ill. App. 85; Sanner v. Union Drainage Dist., 64 Ill. App. 62; Cook County Com'rs v. People, 78 Ill. App. 586; State v. Johnson, 28 La. Ann. 932; City of Vicksburg v. Rainwater, 47 Miss. 547; Irwin-Hodson Co. v. Kincaid, 31 Or. 478, 49 Pac. 765; Arberry v. Beavers, 6 Tex. 457. Irwin v. Kincaid, 31 Or. 478, 49 Pac. 765. "Mandamus will issue to compel him to act, but not to direct how or to what effect he shall act." State v. Board of Liquidation, 42 La. Ann. 647, 7 So. 706, 8 So. 577. only when there is no other adequate legal remedy.21 The fact that the person seeking the issuance of the writ might obtain relief in equity does not preclude its issuance, though this may influence the court's discretion.22 If vested with discretion as to the time and manner of acting, mandamus will not lie to compel a board to meet and decide any of the matters as to which it has such discretion. State v. Chittenden, 112 Wis. 569, 88 N. W. 587. Where the officer or board is vested with judicial powers in the premises as to the determination of facts, mandamus will issue to compel action, but not to direct result of action, unless the underlying facts are substantially undisputed leaving no reasonable ground for action other than in one way. 21 Bank of Columbia v. Sweeny, 1 Pet. (U. S.) 567; Arrington v. Van Houton, 44 Ala. 284; State v. Dunn, Minor (Ala.) 46; Ex parte Williamson, 8 Ark. 424; Peck v. Booth, 42 Conn. 271; Etheridge v. Hall, 7 Port. (Ala.) 47; Hastings v. Henry, 1 Marv. (Del.) 287, 40 Atl. 1125; Marshall v. Sloan, 35 Iowa, 445; State v. Yant, 134 Ind. 121, 33 N. E. 896. See, also, Franklin Tp. v. State, 11 Ind. 205; Highway Com'rs of Yorktown v. People, 66 Ill. 339; State v. McCrillus, 4 Kan. 250; State v. Judge of Sixth Dist. Ct., 12 La. Ann. 342; Tyler v. Township Board of Lamar, 75 Mo. App. 561; Beaman v. Police of Leake County, 42 Miss. 237; Morgan v. Monmouth Plank Road Co., 26 N. J. Law (2 Dutch.) 99; State v. Osborn, 60 Neb. 415, 83 N. W. 357; State v. Holliday, 8 N. J. Law (3 Halst.) 205; People v. Bolte, 71 N. Y. Supp. 73; People v. McGoldrick, The issuance of the writ in aid 24 Civ. Proc. R. 292, 33 N. Y. Supp. 441; Matter of Finnegan, 91 Hun, 176, 36 N. Y. Supp. 331; In re Village of Waverly, 158 N. Y. 710, 53 N. E. 1133. See, also, People v. Board of Town Canvassers, 32 Misc. 123, 66 N. Y. Supp. 199. Compare People v. Guggenheimer, 28 Misc. 735, 59 N. Y. Supp. 913. Commissioners of the Poor v. Lynah, 2 McCord. (S. C.) 170; Shrewsbury v. Ellis, 26 Tex. Civ. App. 406, 64 S. W. 700; Cullem v. Latimer, 4 Tex. 329. Compare Terrell v. Greene, 88 Tex. 539, 31 S. W. 631; Ex parte Goolsby, 2 Grat. (Va.) 575; Justices v. Munday, 2 Leigh (Va.) 165; In re White River Bank, 23 Vt. 478; Farr v. Town of St. Johnsbury, 73 Vt. 42, 50 Atl. 548; State v. Cheetham, 20 Wash. 64, 54 Pac. 772. State v. Wright, 10 Nev. 167. To preclude the issuance of the writ, "the relator must not only have a specific, adequate and legal remedy, but it must be one competent to afford relief upon the very subjectmatter of his application; and if it be doubtful whether such action or proceeding will afford him a complete remedy, the writ should issue." Thus it will not lie when the party aggrieved has the right to appeal from the action of the officer. Marshall v. Sloan, 35 Iowa, 445; Jefferson v. Board of Education of Atlantic City, 64 N. J. Law, 59, 45 Atl. 775; State v. Hitt, 13 Wash. 547, 43 Pac. 638. 22 United States v. Western Un of private rights rests in the sound discretion of the court, 23 but where the writ is invoked in behalf of the state, as a pure prerogative one, in matters publici juris, there is no discretion.24 § 1109. Writ; when issued. 25 Ordinarily a demand on the officer to perform the duty and his refusal or neglect to do so is a prerequisite to the issuance of the writ, though under some circumstances, as where it becomes his duty to act on the happening of a specified contingency, a failure to act after the contingency has eventuated is deemed equivalent to a refusal to act.26 A positive refusal to act is not a prerequisite, it is sufficient if there is a manifest intention not to perform.27 The writ will not be granted on facts which merely raise a presumption that the officer will refuse to perform his duty when the proper time comes,28 though if, in advance of the time for performance, fixed by law, he declares his intention not to perform, mandamus will issue at once, to compel performance at the proper time.29 The writ will lie to compel the performance of a duty by a de facto officer when occupying a de jure office, 23 State v. Doyle, 40 Wis. 220; Talbot Paving Co. v. Common Council of Detroit, 91 Mich. 262, 51 N. W. 933. 24 State v. Doyle, 40 Wis. 220. 25 United States v. Indian Grave Drainage Dist., 85 Fed. 928, 29 C. C. A. 578; Shirley v. Trustees of Cottonwood School Dist. (Cal.) 31 Pac. 365; Park v. Candler, 113 Ga. 647, 39 S. E. 89; Dobbs v. Stauffer, 24 Kan. 127; Bryson v. Spaulding, 20 Kan. 427; State v. Davis, 17 Minn. 429 (Gil. 406); Throckmorton v. State, 20 Neb. 647; State v. Eberhardt, 14 Neb. 201; State v. Smith, 31 Neb. 590, 48 N. W. 468; People v. Common Council of Syracuse, 26 30 Misc. (N. Y.) 522; Gleaves v. Terry, 93 Va. 491, 25 S. E. 552, 34 L. R. A. 144. 26 People v. Whittemore, 4 Mich. 27; State Board of Equalization v. People, 191 Ill. 528, 61 N. E. 339, 58 L. R. A. 513. 27 Cleveland v. Board of Finance & Taxation, 38 N. J. Law, 259; Hanna v. City of Rahway, 33 N. J. Law, 110; Cavanaugh v. Pawtucket, 23 R. I. 102, 49 Atl. 494. Delay in performance to seek advice of counsel and reference to another body not refusal to perform authorizing issuance of writ. 28 Gormley v. Day, 114 Ill. 185, 28 N. E. 693; State v. School Dist. No. 9, 8 Neb. 92. 29 State v. Rotwitt, 15 Mont. 29, 37 Pac. 845; Morton v. Comptroller General, 4 S. C. (4 Rich.) 430. 30 Kelly v. Wimberly, 61 Miss. 548; Wright v. Kelley, 4 Idaho, 624, |