Peremptory writ.

CROSS-REFERENCES.

Mandamus in particular actions on proceedings, see specific topics.

See, also, Injunction; Quo Warranto.

To compel deposit of award in condemnation proceedings, see Eminent Domain, § 263. To compel appraisement under exemption law, see Exemptions, §§ 85-88.

Compelling opening of road, see Highways, §§ 38, 39.

For relief against telephone companies, see Telegraph and Telephone Companies, § 9.

To compel telephone company to furnish instruments and service, see Telegraph and Telephone Companies.

I. NATURE AND GROUNDS IN
GENERAL.

Nature of remedy in general.

is

1. (1878.) A writ of mandamus granted merely to compel action, and enforce the performance of a pre-existing duty. It creates no new authority, nor confers any powers which did not previously exist. It is never granted in anticipation of an omission of duty. State, ex. rel. Mitchell, v. School District No. 9, 8 Neb. 92.

2. (1879.) Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. State, ex rel. Reed, v. Ramsey, 8 Neb. 286. 3. (1880.) Mandamus is not a proceeding to correct errors; it is invoked merely to compel action, and creates no new powers. State, ex rel. Morgan, v. Nemaha County, 10 Neb. 32 (4 N. W. 373).

4. (1883.) The only acts which courts can control by the writ of mandamus are such as are purely ministerial, and with which nothing like judgment or discretion is connected. State, ex rel. Silver, v. Kendall, 15 Neb. 262 (18 N. W. 85).

5. (1888.) The object of mandamus is to compel action. State, ex rel. Anderson, v. Newman, 25 Neb. 35 (40 N. W. 603).

issue

6. will (1894.) Mandamus not when its effect would be to reverse or vacate an order of a court or tribunal having jurisdiction to make such order, although the same may be palpably erroneous; and especially is this so when such order is one that may be reviewed on error or appeal. State, ex rel. Harris, v. Laflin, 40 Neb. 441 (58 N. W. 936).

7. (1894.) The remedy by mandamus is the last resort of the litigant. It is only when all other remedies have failed that he is entitled to this writ. State, ex rel. Harris, v. Laflin, 40 Neb. 441 (58 N. W. 936).

8. ( 1896.) The writ of mandamus should only issue where the duty to be performed is especially enjoined by law or results from the office or station of respondent. Laflin v. State, ex rel. Gray, 49 Neb. 614 (68 N. W. 1022).

9. (1896.) Mandamus can be resorted to alone for the purpose of compelling action. It is not a proceeding to correct errors. State, ex rel. Dahlman, v. Piper, 50 Neb. 25, 39 (69 N. W. 378).

10. (1896.) The writ of mandamus can only be invoked to compel the performance of some particular act which the law especially enjoins as a duty resulting from an office, trust, or station. As a preventive remedy it cannot take the place of injune-tion. State, ex rel. Dahlman, v. Piper, 50 Neb. 25, 39 (69 N. W. 378).

11. (1898.) The office of the writ of mandamus is to compel the performance of an act which the law specially enjoins as a duty arising from an office, trust, or station. State, ex rel. Jones, v. Williams, 54 Neb. 154 (74 N. W. 396).

12. (1898.) The remedy by mandamus rests upon the legal rights of the relator upon one hand and the legal obligations and duties of the respondent on the other, and cannot be predicated solely upon the equities

existing between the parties. State, ex rel. Patterson, v. Wenzel, 55 Neb. 210 (75 N. W. 579).

13. (1901.) Where a specific duty is provided by statute mandamus may be invoked to enforce it, if denied; and the party entitled to such relief will not be forced to pursue his remedy by a circuitous and dilatory action at law. State v. Coufal, 1 Unof. 128 (95 N. W. 362).

Right to writ in general.

14. (1882.) An application for mandamus must show that the relator is entitled to the writ, otherwise it will be refused. State, ex rel. Jones, v. Wallichs, 13 Neb. 278 (13 N. W. 627).

15. (1883.) To warrant a court in granting a mandamus, it must be made to appear that the relator has a clear legal right to the performance by the respondents of the particular duty sought to be enforced, and that he has no adequate remedy at law. State, ex rel. Beatty, v. City of Omaha, 14 Neb. 265 (15 N. W. 210; 45 Am. Rep. 108).

16. (1887.) A writ of mandamus will not be granted unless the right of the relator thereto is clear. State, ex rel. Hymer, v. Nelson, 21 Neb. 572 (32 N. W. 589).

17. (1888.) Mandamus will lie only where the relator's right is clear. State, ex rel. Hanna, v. Kavanaugh, 24 Neb. 506 (39 N. W. 431).

18. (1895.) A writ of mandamus will issue only when the right to require the performance of the desired act is clear. State, ex rel. Shaffer, v. Bowman, 45 Neb. 752 (64 N. W. 223).

19. (1897.) A writ of mandamus will only be allowed when the relator clearly establishes his right. Nothing essential to that right will be taken by intendment. State, ex rel. Woodruff-Dunlap Printing Co., v. Bartley, 50 Neb. 874 (70 N. W. 367).

20. (1902.) The writ of mandamus will not issue merely to correct errors; it must further appear that the remedy prayed for by the application for the writ can be obtained by that means only as a last resort, and that the relator has no adequate remedy in the due and ordinary course of the law. State, er rel. Cohn, v. Jessen, 66 Neb. 515 (92 N. W. 584).

21. (1903.) A writ of mandamus to compel the chief of police to close certain houses of prostitution should be denied, where it appears that relator assisted in building the

houses, knowingly shared in the proceeds of their use for that purpose, and is instituting the proceeding out of spite because he is no longer allowed to share therein. Donahue v. State, ex rel. Seieroe, 70 Neb. 72 (96 N. W. 1038).

22. (1903.) Mandamus is a discretionary writ and will be allowed only in furtherance of justice upon a proper case presented. It will not be allowed where it is apparent that it is applied for to gratify the spite of a private individual nor where the relator has instigated, authorized or approved the acts complained of. Donahue v. State, ex rel. Seieroe, 70, Neb. 72 (96 N. W. 1038).

23. (1903.) Before the court is warranted in granting a peremptory writ of mandamus, it must be made to appear that the relator has a clear legal right to the performance by the respondent of the duty which it is sought to enforce. Nothing essential to that right will be taken by intendment. State, ex rel. Niles, v. Weston, 67 Neb. 175 (93 N. W. 182).

24. (1904.) While the courts, in the exercise of a sound discretion, will not issue the writ of mandamus, even to vindicate a technical right, where more harm than good will result through its interference with municipal administration, such considerations are addressed to the trial court. Only in a clear case of abuse of discretion would the granting of a mandamus be reversed for such a cause. Moores v. State, ex rel. Dunn. 71 Neb. 522 (99 N. W. 249; 115 Am. St. Rep. 605).

25. (1904.) That one of two relators admits that his leading motive in assailing a "pool room" whose closing was the object sought, was the belief that a certain citizen, who had actively assisted its operation, was interested in its profits, is no ground for reversing a judgment in favor of the relators. Moores v. State, ex rel. Dunn, 71 Neb. 522 (99 N. W. 249; 115 Am. St. Rep. 605).

Adequacy of mandamus.

26. (1896.) A writ of mandamus will not issue where it is not within the power of the respondents lawfully to perform the act sought to be enforced, or where the writ would otherwise be unavailing. Farris v. State, ex rel. Murphy, 46 Neb. 857 (65 N. W. 890).

27. (1906.) The writ of mandamus is properly denied where it would be unavail

ing if allowed. State, ex rel. Cronin, v. Cronin, 75 Neb. 738 (106 N. W. 986).

Existence of other remedy.

28. (1876.) Where the relator has a plain and adequate remedy, by a civil action, to recover a money judgment for any sum, resort to mandamus cannot be had. State, ex rel. Roberts, v. Mayor of Lincoln, 4 Neb. 260.

29. (1881.) If the remedy by action is not plain and adequate a mandamus should be awarded. A remedy by contest by one whose election appears on the face of the returns is not adequate. State, ex rel. Willard, v. Stearns, 11 Neb. 104 (7 N. W. 743).

30. (1883.) Mandamus will only be granted when the party applying for the writ has no other specific or adequate remedy. State, ex rel. Tutton, v. Eberhardt, 14 Neb. 201 (15 N. W. 320).

31. (1891.) Mandamus will not be granted where there is a plain and adequate remedy at law. State, ex rel. Proctor, v. Cotton, 33 Neb. 560 (50 N. W. 688); (1888) State, ex rel. Hershisher, v. Kinkaid, 23 Neb. 641 (37 N. W. 612).

32. (1893.) Proceeding for simply the collection of a debt, of which the district court of Chase county has ample jurisdiction, a writ of mandamus is denied, and the action dismissed. State, ex rel. Clarke, v. School District, 38 Neb. 237 (56 N. W. 791). 33. (1895.) Mandamus is the last resort of a litigant and the courts will not employ this remedy when such litigant has a plain and adequate remedy at law; nor in the absence of such remedy unless the relator has a clear right to have the officer to whom he wishes the writ directed perform the identical ministerial act prayed for. State, ex rel. Wyckoff, v. Merrell, 43 Neb. 575 (62 N. W. 754).

34. (1898.) A litigant will not be permitted to invoke the extraordinary remedy of mandamus when an express statute affords him an adequate remedy for the redress of the grievance of which he complains. Nebraska Telephone Co. v. State, ex rel. Yeiser, 55 Neb. 627 (76 N. W. 171; 45 L. R. A. 113).

35. (1900.) The writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. Horton v. State, ex rel. Hayden, 60 Neb. 701 (84 N. W. 87).

36. (1900.) Mandamus will not issue where the law affords a plain and adequate

remedy. State, ex rel. Young, v. Osborn, 60 Neb. 415 (83 N. W. 357).

37. (1902.) A writ of mandamus will not issue where there is a plain and adequate remedy in the ordinary course of law. State, ex rel. Fitzgerald, v. Houseworth, 63 Neb. 658 (88 N. W. 858).

38. (1903.) Section 646 of the code of civil procedure prevents the issuance of a mandamus in any case where the relator has a plain and adequate remedy in the ordinary course of law. Moores v. State, ex rel. Cox, 4 Unof. 235 (93 N. W. 986).

39. (1905.) A writ of mandamus will be denied, unless it appear that there is some substantial right which is in jeopardy for want of a plain, adequate remedy in the ordinary course of law. State, ex rel. Grove, v. McGuire, 74 Neb. 769 (105 N. W. 471). Necessity of prior demand and default. 40. (1883.) Where a proceeding by mandamus is instituted by a private individual, as a taxpayer, against a county clerk and treasurer to require them to keep the books pertaining to their respective offices in a particular manner, it must appear that a demand for that purpose was made upon such officers before the action was commenced. State, ex rel. Tutton, v. Eberhardt, 14 Neb. 201 (15 N. W. 320).

41. (1891.) It is indispensable to demand of the party, if a private individual, against whom application for mandamus is to be made, to perform the duty before the action is commenced. State, ex rel. Harnish, v. Smith, 31 Neb. 590 (48 N. W. 468).

42. (1896.) As a general rule, mandamus will not issue at the suit of a private individual to compel a public officer to do any official act until a demand has been made upon him to do it. But a formal demand is unnecessary where the conduct and action of the respondent are equivalent to a positive refusal. State, ex rel. Marquett, v. Baushausen, 49 Neb. 558 (68 N. W. 950).

43. (1903.) In an original application to the supreme court for a writ of mandamus, requiring a judge of the district court to vacate an order of injunction made by him at chambers, the fact that the relator had not asked the respondent, or the court over which he presides, for a vacation of such order is of itself a sufficient ground for a denial of the writ. State, ex rel. Lincoln Traction Co., v. Holmes, 5 Unof. 66 (97 N. W. 243).