Chance v. Temple

1 Iowa 179 | Iowa | 1855

Isbell, J.

'The order awarding a peremptory writ, must be reversed, and tbe alternative writ quashed. We might point to one or two radical defects in these proceedings, or examine only as to tbe relator’s right to tbe aid of this remedy, under the, title be has set up, and there stop. But tbe unsettled state of tbe practice with regard to this writ, as evidenced by tbe entire proceedings in this case — that a case so defective in all points of practice, should bavé reached this court — seem to require from tbe bench, more than a passing remark, sufficient to decide it. We shall, therefore, endeavor to give construction to our statutes touching this writ, and sketch tbe general outline of tbe practice; and in doing so, shall not confine ourselves so closely to tbe questions raised, as we would regard it our duty to do, were this a case of a different character, where tbe pronouncing generally upon it,, might have a greater tendency to interfere with vested rights, or were it not a proceeding peculiarly under tbe supervision of this court.

The first step to be taken in order to obtain the benefit of this writ, is to inform the court of the ground upon which it is invoked; for this is a prerogative writ, and not one of right. By this, we mean, the mandate contained in it, is the expression of sovereign authority, which is not had simply by asking, but only on good cause shown.

It is issued on the information, under oath, of the party beneficially interested (Code, § 2188), and is obtained in the same manner as a writ of certiorari (§ 2186), by motion, made on affidavit (§ 1968).

A question vital to the practice, growing out of the manner in which the word information is used in various parts of the Code, here arises: What is meant by the word information, in the section above first quoted ? Does it mean a pleading distinct from the affidavit mentioned in the section last quoted, or is the information spoken of in that section, simply the knowledge communicated to the court by the affidavit ? If the latter, the practice in procuring the writ, and the writ itself, remain as at common law; and it is to the matter of inducement in the writ, to which defendant must answer, as heretofore, if he does not choose to obey its mandate. If the former, the only office that we can conjecture which it can perform, is to stand in place of the matter of inducement required, at common law, in the writ, so far as to be answered to; and how far this matter in the writ might be dispensed with, would remain a question. We conclude that this word is used in its ordinary signification, and not as a pleading distinct from the affidavit. This conclusion preserves the harmony of the statute under the provisions of the common law, of which its general tenor appears declaratory; and we cannot believe that so important a change in the practice, as that to which the other conclusion would lead, was intended to be. wrought, and not by .any provision defined, either as to what that information should contain, or otherwise. Again: we cannot conjecture why this information, if one distinct from the affidavit is required, need be on oath, more than the writ at common law. We think, too, that the phrase would have been an information, and that the provision for answering, in section 2187, would have provided that the answer should be to the information, as that was in that connection the remote, and the writ the proximate, antecedent, if an answer to the information, instead of the writ, was intended, especially as the answer always had been to the writ. We should not have made so serious a question of this, had we not been aware that the manner in which the word information is used in various parts of the Code, has made its use here, occasion an ambiguity which has served to perplex men of fair professional minds.

The information or affidavit should not be entitled in any cause, for the application is as yet ex parte (2 Johns. 371; 1 Wend. 291; 7 Howard Prac. 127; and 5 D. & East, 466); but this, we apprehend, is merely formal, and to be availing, the objection must be taken in limine, as on the reading. In this, these proceedings are not objectionable. It should be addressed to the court before which it is laid. In this case, it is not addressed to any court, and the only mark by which it appears that it has been before any, is the indorsement of filing by the clerk. We do not mean to be understood that this is ground of error, after awarding the writ, but only notice it, to point to a more correct practice.

A more proper style of commencement, than that adopted in this case, would, perhaps, be: “ A. B., of full age, being duly sworn, now here causes the court to be informed, that,” &c., but this is merely formal, no set of words being necessary to constitute an information, if sufficient in substance. And here we may remark, that the legal principles that govern the dispensation of this writ, have not been materially affected by the provisions of the Code, but that so far as the statute relates thereto, it is but declaratory of those principles. In substance, the information should be such, that from the facts therein stated, the court is thereby informed, that the inferior tribunal, corporation, board, or person, sought to be made defendant to the writ, has, being distinctly requested, refused to perform an act wbicb the law has specially enjoined upon such defendant, as a duty resulting from the office, trust, or station of .such defendant; and all other facts necessary to give jurisdiction to the writ in the particular case, as to show an absence of other legal remedy — that the person who seeks the aid of the writ is beneficially interested in haying the act performed, and the like — should be fully stated. In other words, the relator must show his title to the writ, or the court will refuse the rule. Code, §§ 2179, 2180, 2182, and 2183; Tap. on Mand. 293, and authorities there cited.

We do not purpose entering into a minute analysis of the substance of the title to the aid of this writ; but it may not be without its use, that we call attention to some of the general, well established doctrines of the law in relation thereto, which we may do without going far out of the case.

First — The information should state facts. Mere evidence, or legal conclusions, or that of which the court may take judicial notice, or that which should properly appear by way of defence, need not be stated. It would occupy too much space to review the information in this case, and point out its redundancies. As to the manner of stating the facts, it is laid down by Stephens, in his Nisi Prius (2318), quoting Rex v. Sargent, 5 T. R. 466, that the affidavit should contain the precise substance of facts ; and it will be insufficient if the allegations be not so positive, that an indictment for perjury could be maintained upon them, if false.

Second — That the inferior tribunal, corporation, board, or person, sought to be made defendant to the writ, is legally required to perform the act sought to be enforced. This proceeding is not in its nature personal, until an attachment is asked to enforce obedience. People v. Champion, 16 Johns. 64. The information furnishes the basis for the writ. The direction of the writ is a very material part of it. Tap. on Mand. 310. The court, when it grants the rule, will not in general give direction to it, for this might be prejudging the right, upon which may depend the very question to be tried (King v. Mayor of Ripon, 2 Salk. 433; Steph. N. P. 2322); but will, in general, simply order, in short, “rule granted,” in which case the rule, as well as the writ, should follow the information; though in doubtful cases the court may, in its discretion, and sometimes does, suggest the form of the rule. The writ should correspond with the rule. Tap. on Mand. 299, and authorities cited in note X.

Third — Has, being distinctly requested, refused. This demand must be express and distinct, and not couched in general terms, but should accurately demand the performance of that which the defendant can, or should do,- and which the court is asked to compel. Both the demand and refusal should appear in the information; and if the demand does not clearly appear to have been properly made, the court will refuse the rule. As to the demand — by whom made — when to be made — and to whom — -form of — and how it should appear in the information — see Tap. on Mand. 282 and 287, and authorities there cited.

Fourth — 'Which the law, &c. — this comprehends the common, as well as the statute, law. Tapp, on Mand. 11.

Fifth — As a duty resulting from the office, trust, or station, &c. This writ is not applicable as a redress of mere priyate wrong. Tapp, on Mand. 5, and authorities cited in note i; also 11, note n and o. During the time that Lord Mansfield presided in the Court of King’s Bench, he took great pains to define the nature and character of this writ. In the case of King v. Barker, 1 W. Blac. 352, he says: “A mandamus is certainly a prerogative writ, flowing from the king himself, sitting in this court, superintending the police, and preserving the peace of the country.” It is laid down by Tapping, in summing up the effect of the various decisions of Lord Mansfield, as to when the writ will be granted, and when refused, that the Court of B. B. as the general guardian of public rights, and in the exercise of its authority to grant the writ, will render it, as far as it can, the suppletory means of substantial justice in every case where there is no other specific, legal remedy, for a legal right; and will provide as effectually as it can, that official duties are fulfilled, wherever the subject matter is properly within its control. It is only granted to compel the performance of public duties. Steph. Nisi Prius, 2291; Tapp, on Mand. 9.

Sixth.' — 'Absence of legal remedy. It ought not to be issued in any case where there is a plain, speedy and adequate remedy, in the ordinary course of law. Code, § 2182. The language of this provision is restraining. We regard it as intended to prevent abuse of this writ, and not that it constructively enlarges its jurisdiction; the language of the common law in this connection, being that (among other things), the absence or want of a specific legal remedy, is necessary to .give the court jurisdiction to dispense the writ. What is a specific legal remedy, we do not purpose to inquire, but only say, that it has been repeatedly decided by the courts of other states, and of England, that where any of the ordinary civil actions, as a special action on the case, debt, •covenant or assumpsit, will lie, they are such remedies. Or where a party has a remedy by appeal, writ of error, or certiorari, they are such remedies. But that an indictment will lie, or that a party may obtain relief in equity, is not necessarily such remedy. How far the courts of this state may go on this subject, remains to be determined. We might add, that although the information should be such that from it, it may be judicially ascertained that there is no specific legal remedy, yet it is not necessary that this should be averred in it. 1 Iredell, 129.

This information must be accompanied by a motion for the writ, for it is never granted except on motion, and must be presented in open court. The court may require a notice of the application to be given to the adverse party, or may .grant an order to show cause, or may, in its discretion, grant the writ without notice. Code, § 1968. We apprehend that this is, also, declaratory of the common law. The peremptory writ will not be granted in the first instance, except in cases of extreme urgency, as to compel a jailer to deliver up the body of a prisoner that died in his custody, for burial (Tapp, on Mand. 407), or in cases that from their nature admit of no excuse, and where danger of prejudice to the rights of the party, might result from delay, as where a clerk refused to record a deed, for the reason that the acknowl-edgement was not such as to justify its being recorded, the court being satisfied as to the validity of the acknowledgment by inspection, and it béing urged that another deed might be recorded, if delay was had, by first awarding an •alternative (Ex parte Goodell, 14 Johnson, 325), and the like (Board of Police v. Grant, 9 S. & M. 77 ; Tapp, on Mand. 406, 407); or where the defendant is party to the proceeding then pending before'the court. In short, in granting the peremptory writ, the alternative writ, or in ordering the rule to show cause why an alternative writ should not issue, the court will regulate its discretion by the well established usages of the common law.

With regard to the form of the rúle or order awarding the writ, we have anticipated most that need be here said. If the court takes upon itself the responsibility of moulding the rule, which, in its discretion, it may do, care should be taken that the writ be properly directed; and if the writ is to be executed in an official capacity, it is preferable to direct it to the defendant by his official appellation, without designating his name, as this avoids any inconvenience arising from a change of the person in the office. The body of the rule should be expressed in definite terms, -or the mandamus, which must follow the rule, may be void for, generality. Tapp, on Mand. tit. Eorm of Buie, 299. The court will suggest the time of return. Code, § 2184. We might add, that the court, although doubtful of the prosecutor’s right to the writ on an ex parte showing, may, in its discretion, award the alternative writ, that it may be better informed on the argument, or showing on the return; and unless the case is plainly not within the jurisdiction of the Writ, on the professional statement of the attorney for the applicant, that his object is to take the opinion of the Supreme Court on the question, will generally do so. And will, also, grant an alternative writ, under circumstances of doubt, where a peremptory writ is asked for in the first instance, on a like statement by counsel for defendant, that, in either case, proper issues may appear and be determined, for review in the superior court.

We shall, hereafter, speak of the case at bar as we go along. The question here made, is, in what name shall the writ be prosecuted? The language of our constitution (Art. 5, § 6), is, the style of all process shall be “The state of Iowa,” and all prosecutions shall be conducted in the name and by the authority of the same. Is the proceeding by mandamus a prosecution within the meaning of the constitution, so as to require it to be conducted in the name of the state? The high prerogative nature of this remedy'— the impropriety of coercing high official duties in any name less potent than the highest civil authority — the universal practice everywhere in cases where the public is primarily interested — the fact that proceedings under this writ, are so universally denominated in the books a prosecution (although we are not prepared to determine that it is a criminal prosecution, as contended for by the defendant here)' — with other reasons that might be named' — leave little doubt in our minds, that it is a prosecution within the meaning of the constitution, and hence should be prosecuted in the name -of the state. And as this case is conducted in the name of an individual, it is therefore erroneous. Where the object is to enforce a duty, for mere private ends, it should be in the name, of the state, on the relation of the informant. Although the writ should run in the name of the state of Iowa, yet it is not essential that it should be expressed on its face, to be by the authority of the state ( Wrocklege v. State, Ante, 167); but it should not appear on its face, to be by any other authority, as it does in this case, to wit: “In the name of the state of Iowa, and by the authority of the District Court in the county of Lucas.” There is not inherent in the District Court, as such, any authority to command by this writ. It is the sovereign authority, in contenqplation of law (ever willing that right should be done), sitting in that court, superintending the police of the country, from whence the mandate comes, upon the condition precedent, that the court (being vested with authority under the constitution and laws) shall have determined that the act to be done, is one proper to be enforced by its mandate.

We come now to speak of the direction of the writ, which we have, also, in a measure anticipated. We would only say, further, that this is so material a part of the writ, and if defective, gives to the defendant a defence so clear and simple, that too much pains cannot be taken to insure its .accuracy. Tapp, on Mand. 310 to 320, and alphabetical series of directions, note q, 310 to 813. It must be remembered, that the writ must be executed in terms, or not at all. Tapp, on Mand. 409, and authorities in note/ In the case before us, the information shows that “Samuel P. Houston, school fund commissioner (not as school, &c.), did, and refused to do, certain acts,” and finally concludes by saying, that ’“Edward A. Temple is the present school fund commissioner.” The motion is for the writ to issue to “Edward A. Temple, school fund commissioner.” The court, in this case, saw proper to make the rule in effect “to the school fund commissioner of Lucas county,” which, if the writ should have issued at all, was the proper direction. But the writ, when it is issued, is issued, “to Edward A. Temple, greeting.” Now, that such a writ was not authorized by the rule; or that Edward A. Temple, as Edward A. Temple, cannot make á contract evidencing title to the school lands of the state; or if he should conclude to obey the command, and do so, that such contract would be abortive, is so plain that the case has only to be stated, to show its glaring absurdity. The writ should have been quashed at sight, for these, if for no other reasons. Tapp, on Mand. 336, and note o.

The writ is fatally defective in another particular; that is, in the matter of inducement, to which the defendant may answer. We can only account for this, on the ground that there has been a misconstruction of the Code in relation to this writ. The following clauses, as we think, have been entirely misapprehended: “ It is either alternative or peremptory,” section 2183. “ The alternative writ commands tbe defendant to do tbe act required to be performed, or show cause before tbe court forthwith, or at a specific time and place, why be bas not done so, and that be tben and there return tbe writ,” section 2184, Tbe peremptory writ omits tbe words which require tbe defendant to show cause wby be bas not done as commanded,” section 2185, It seems to be tbe impression, that these provisions of tbe Code, describe tbe whole writ, and that tbe matter of inducement required at common law in it, is dispensed with. We do not so understand tbe statute. These sections simply declare tbe distinction between tbe alternative and peremptory writ, as it existed at common law, and no more. Tbe only ground on which it could, for a moment be supposed, that this matter in tbe writ could be dispensed with, must be that a distinct information from that on which tbe court is moved -to issue tbe writ, to which tbe defendant may answer, is required, which question we have disposed of in setting out. But here, there is neither an information distinct from tbe affidavit, or matter .of inducement in tbe writ. We do not purpose going into a minute inquiry of what facts should appear in tbe writ, or bow they should be stated. Very much of what we have said in relation to tbe substance of tbe information, is here applicable. We need only add, that this matter of inducement is, in short, everything necessary to show jurisdiction over tbe subject of tbe writ, and to warrant its mandate, stated with precision and issuably. See form in People v. Commissioners of Saline, 1 Cow. 29 ; also form that bas been questioned, in Blunt v. Greenwood, 1 Cow. 22, note e; 4 Cow. 76; People v. Supervisor of Fulton, 14 Barbour, 54; Canal Trustees v. People of Illinois, 12 Ill. 248 ; People v. Ranson, 2 Const. 490; Hoxie v. County Com. of Somerset, 25 Maine (12 Shep.), 333; Commercial Bank v. The Canal Commissioners, 10 Wend. 25. And see tbe subject treated of, and full authorities cited, in Tapp. on Mand. chap. 5.

We pass on to tbe mandatory clause of the writ. And here, too much -care cannot be bestowed. • The prosecutor will be bound by it, for it is a rule, that tbe writ must be enforced in tbe terms in which it is issued, or not at all. Tapp. tit. Mandatory Clause, 823. It must be supported by, and not exceed in legal value, the averments of title forming the inducement of the writ, and be in conformity with •the legal obligation of the defendant. Ib. 323 and 326. Let -us look at the mandate of the writ in this case, which is as follows: 1 ‘ You are hereby commanded to convey to "William 'Chance, according to the law in such case made and provided, and in accordance with the rules, regulations, and customs governing the sale of state lands at your office, the following described saline lands,” &c., or “showcause,”&c,,41 To ■convey.” We have to learn any authority that any school fund commissioner has, to conveyany of the lands of the state, saline or school. He may, as such commissioner, contract for the sale, or bargain them away, and receive the price, and certify to the purchaser. This is the extent of his agency in this particular. The conveyance comes from another source, from the governor, by patent. Here, then, the mandate exceeds the legal obligation or duty of the defendant, and it is, therefore, void. Again; were we permitted to go back to the affidavit, it would appear, that although the unpaid three-■fourths of the purchase money was offered to the defendant, yet it was not received by him, and is still in the hands of the relator. Now, it strikes us, that if everything beside would warrant the mandate, the relator could only properly ask, that a command be allowed to go forth to the defendant, to certify, on being tendered the residue of the purchase money.

We pass on to the answer. If a defendant does not choose to obey the mandate, and make return accordingly, how may a writ of mandamus be answered ? Section 2187 of the Code provides, that, “ on the return day of the alternative writ, or on such farther day as the court may allow, the party on whom the writ has been served, may show cause, by a sworn •answer, made in the same manner, as an answer to a petition in a civil action, and issue may be made thereon, and tried ■accordingly.” It will be observed, that the word answer, -alone., is used in the statute; and while we have no doubt tbat tbe answer may be, by way of traverse, or confession and avoidance, yet may tbe defendant demur to tbe sufficiency of tbe writ ? In England, a distinction is taken between a demurrer (wbicb is not allowed), and a submission in tbe return, tbat tbe defendant is not bound in law to execute tbe writ (Tapp, on Mand. 362): wbicb is considered an answer in tbe nature of a demurrer, and treated accordingly. In tbe case of Hillis, school fund commissioner of Jones county v. Ryan, December term, 1853, wbicb was reversed, because tbe court below refused to allow tbe defendant to answer over after demurrer, (xKEENE, J., bases tbe opinion of tbe court on section 1755, of tbe Code, regulating civil proceedings ; and nowbere intimates tbat a demurrer was not a. proper answer. It will be observed, too, tbat tbe language of tbe statute is, tbat “ issue may be made thereon.” Tbe question then arises, may tbe relator demur to -tbe answer ? Tbe language of 9tb Ann, cbap. 20, is, “ it shall and may be lawful to, and for tbe person or persons suing or prosecuting sucb writ of mandamus, to plead to or traverse all, or any, of tbe material facts contained witbin tbe said return ; to wbicb tbe person or persons making sucb return, shall reply, take issue, or demur.” Under this statute, tbe courts constantly refused tbe relator tbe right to demur, until 6 and 7 Yic. cbap. 67, § 1, expressly gave that right. And in New York, tbe practice of demurring to tbe answer, has been frequently discountenanced. 9 Wend. 429; 1 Wend. 88; 16 Johns. 61.

At common law, tbe return was taken as true; and if on its face a sufficient defence, tbe court would refuse to proceed, but leave tbe relator to bis action, or to a criminal information for a false return. Our statute on this subject is far from being explicit. Tbe indirect sanction already given to demurring to tbe writ, by tbe case above cited — • tbe general phrase of tbe statute — tbe general tenor of our laws, tbat a party shall not be concluded in bis rights until fully beard, both as to law and fact — tbe ordinary mode provided for taking advantage of substantial defects in proceedings, being by demurrer — together with tbe apparent effort on tbe part of tbe legislature, to reduce pleadings to one common system — seem to combine in justifying us in saying tbat, in answering to a writ of mandamus, as well as in showing cause as to tbe sufficiency of tbe writ, in law, as in fact, and to all subsequent proceedings, tbe ordinary rules of pleading in civil actions are applicable, except tbat a return as to fact, should always be on oath. But, as this is not a question made in this case, and we have not bad tbe benefit of argument, we would not pronounce upon it too decidedly. The answer in this case was not good, not being on oath, and was to tbe affidavit, and not to tbe writ; but it was undoubtedly sufficient, as there were no facts stated in tbe writ tbat could legitimately be answered, and a defendant can only traverse what is stated in tbe writ Com. Bank v. Canal Com., 10 Wend. 25 ; The People v. Ransom, 2 Comst. 492 ; 3 Barn. & Ald. 221; The People v. The Supervisors of Fulton, 14 Barbour, 54; Tapp. on Mand. 337, and note q. Tbe proper practice in this case, would have been to move to quash, or to demur. Or rather, tbe court should have quashed tbe writ at once, without motion, simply on the suggestion of tbe entire want of inducement.

And next, as to tbe rule for tbe peremptory writ. Tbe court has no power to award a peremptory mandamus in a more limited or other form than tbe alternative. It must go in tbe terms of tbe original, with tbe exception tbat it omits tbe words which require tbe defendant to show cause why be has not done as commanded (Code, 2184, 2185; Tapp, on Mand. 305, and authorities in note q; lb. 402, and note m), or not at all. Ib. 409, and note j. Tbe proper ■order, on^ tbe hearing of tbe application for a peremptory writ, after 'an alternative, is, “ let tbe writ be peremptory,” or “ peremptory writ refused.” Tbe final order in this case, awarding a peremptory writ, is as follows: “ It is considered, tbat a peremptory mandamus issue herein, directed according to law, requiring tbe school fund commissioner of Lucas county, Iowa, to forthwith make, execute, and enter into, tbe writings as required by law, to evidence tbe contract made by him on tbe 23d day of December, A. D, 1853, for tbe following lands (describing tbe lands), and to do all things else, which he is in duty bound to do as such officer-in the premises.” We have seen that the original was. directed “ to Edward A. Temple.” The peremptory writ is-to be directed according to law, requiring the school fund commissioner, etc. The command of the original, is to convey according, etc. Here, it is to make, execute, and enter into, the writing required by law to- evidence- the contract. The- contract here named is- one made on the 23d of December. Wherever the contract is spoken of in the papers, it is described as having been made on the 24th of December but it is not named in the original writ in any way. Here, there is no person named with whom the contract is to be-made, nor was there in the original writ (though the original' required the conveyance to be to William Chance), and this; clause of other duties, although prayed for in the replication,, is, we apprehend, without precedent. The irregularity of this proceeding has but to be stated, to be apparent. It is. not meet, because you have been permitted to call upon one person to show cause, why he should not be compelled to do a certain act, in a certain manner, that a sovereign mandate should go forth to another person to do a different act; nor yet to the same person to do a different act; nor yet to the same person to do the same act in a different manner. As well might a peremptory writ issue in the first instance, without a showing. It must be remembered, that this is a. high prerogative writ. Its mandate is, in its nature, law. It is issued only in the absence of legal remedy. In the-nature of government, it becomes necessary that a power-should be reposed somewhere, to enforce the performance off official duties, or they might be omitted, to the great prejudice of the rights of the citizen, or the body politic. Yet this necessary power should act within its proper sphere,, and all proper guards should be thrown around it, to prevent its becoming an instrument of oppression.

There is only one other point in the practice, which we see proper to consider, and that is, how shall proceedings on mandamus come up to this court for review ? If a proseention by mandamus is a criminal action, as contended for by counsel for defendant in another branch of this case, the only mode by which it can be reviewed is by writ of error. Oode, § 3088. The authority cited to support this position, we have been unable to find. As cited in the digest, it decides that a mandamus is a criminal process, relative to civil rights. 3 U. S. Dig. 6, quoting State v. Bruce, Const. 165, 174. It has ever been prosecuted on the crown side of the B. R., and by 6 and 7 Vic. chap. 67, § 2, a writ of error is given, but it provides that like proceedings shall be had thereon as in personal actions. It is laid down by Stephens, in his Nisi Prius, 2291, that it is substantially a civil remedy for the benefit of the subject, and the king’s name is only nominally used. In the case of The Commonwealth v. The Commissioners of Lancaster, 6 Binn. 5, it is considered as not properly a civil action. Our statute regulating the appellate j urisdiction of this court, provides that it shall have appellate jurisdiction over all final judgments and decisions of any of the District Courts, as well in cases of civil action, properly so called, as in “proceedings of a special or independent character.” Code, § 1555. We have considered this question, and conclude that, although a proceeding under this writ, is a prosecution within the meaning of the constitution, yet that is not a criminal action within the definition of section 3088 of the Code, but a proceeding of a special or independent character, as defined by section 1555 above quoted; and hence this case is properly before us by appeal.

We have omitted to state, as we went along, what objections might be waived by subsequent proceedings, or what must be taken in limine to be availing, or how far amendments of the information, or alternative writ, are allowable; and, indeed, in the present state of the law, very difficult questions will arise on this subject. The statute of amendments and jeofails, adopted January 24,1889 (Rev. Statutes, 1843, 56), was expressly by that act extended over writs of mandamus. This was repealed by the Code (§ 28), and the question that primarily arises, is, whether the provisions for amendments contained in the chapter regulating civil proceedings, are applicable to tbis writ. But on these questions we do not purpose to enter at tbis time, and reserve them for future adjudication, when they shall properly come before the court.

Notwithstanding the defects in these proceedings, and the entire want of a case which we may properly consider, it is thought proper that we should speak of the prosecutor’s title' to the aid of this writ. And here, we are compelled to go back to the affidavit on which the alternative writ was granted, in order to inquire into the prosecutor’s right, as shown by himself. 'The first suggestion that arises is, that the prosecutor seeks to perfect an inchoate contract. We have sought in vain for a precedent for this by the aid of this writ; but we find, instead, several cases that would seem to tend to the contrary. Ex Parte Percy, 4 A. & E. 949; The People v. The Canal Board, 13 Barbour, 432; Tapp. on Mand. 91. And, on principle, we doubt whether this can be done. But the prosecutor not only seeks to perfect an inchoate contract, but that contract is one that shall bind the State. In the case of The People ex rel. Andrew J. Yates v. The Canal Board of the State of New York, 13 Barbour, 432, which was an application for a peremptory mandamus to be directed to the canal board, to act and approve or disapprove of contracts awarded to relator, the question arose, that here arises. Says Cady, J., “Although the motion is in form against the canal board, it is, in effect, against -the people of the state. The relator wants nothing of the canal board, but to approve the contracts, and thereby bind the' people of the state.” In the case at bar, the relator wants nothing of the fund commissioner, but to execute the contract, and thereby bind the state. After discussing the question on authority, in the case last cited, the learned judge says: “ I have been unable to find any case in which, on the application of an individual, a mandamus has been issued to any officer of the government, commanding him to make a contract with that individual, binding on the state.” The issuing of a mandamus is, in effect, the commencement of an action. 1 P. Williams, 351; Kendall v. The United States, 12 Peters, 615; The People v. The Canal Board, 13 Barbour, 439; Reeside v. Walker, Sec. of the Treasury, U. S., 11 Howard, 272. In the case last quoted, which was an application for a mandamus, made by Mary Reeside, executrix of James Reeside, to be directed to Robert J. Walker, as Secretary of the Treasury Department of the United States, commanding him to enter upon the books of the Treasury Department a credit of $188,496.06 (the same being the amount found in favor of the deceased by a jury, in a case brought by the United States against him), and also commanding him to pay to said executrix said sum with interest, says Woodbury, J.: “It is well settled, too, that no action of any kind can be sustained against the government itself for any supposed debt, unless by its own consent, under some special statute allowing it.” — Quoting, as authority, Briscoe v. Kentucky Bank, 11 Peters, 321; 4 Howard, 288; 9 Howard, 399. Again, he says, “such being the settled principle in our system of jurisprudence, it wotdd be derogatory to the courts to allow the principle to be evaded or circumvented.” The state is no more suable in its own courts, than the United States. 13 Barbour, 439. But these cases, and the one at bar, must be distinguished from those cases which arise under the provisions of the constitution, that private property shall not be taken for public use, without compensation, and those where the statutes expressly create the liability of the state, and point out the manner of payment (6 Cow. 518), which liabilities may be enforced. And Mr. Justice Woodbury, in Reeside v. Walker, further remarks: “Now, under these circumstances, though a mandamus may sometimes lie against a ministerial officer to do some ministerial act connected with the liabilities of the government, yet it must be when the government itself is liable, and the officer himself has improperly refused to act. It must, even then, be in a case of dear, and not doubtful, right.” The People v. Corporation of Brooklyn, 1 Wend. 318; The People v. Supervisors of Columbia County, 10 Wend. 366; The People v. Canal Board, 13 Barbour, 444; Tapp. on Mand. 320.

But tbe relator, not only seeks to perfect an inchoate contract that shall bind the state, but from his own showing, he discloses, that other persons have become purchasers of the same lands, whom he does not charge with notice; and with regard to one of the tracts, the purchase was made of the present fund commissioner, who himself, had no notice. Now, in such a state of the case, it would appear, even if there was no question, that a mandamus would lie to enforce the right when once ascertained, that this forum is not the proper one to discover how the rights of the several parties, in fact, stand. To determine this question, a resort to equity, in the first instance, would be proper, to settle the right, even if it had to be enforced by this writ, when settled. And there can be no question, that if a mandamus will lie to settle and enforce the right, it would lie simply to enforce it, when settled. But has the relator, giving full force to his statements, and not regarding those that make against him, shown a clear right in point of fact ? In the first place, he says that “sometime during the year 1853, to wit, on the 24th day of December, 1853 ” (this statement under a videlicit, is not warrantable), he “ entered” the lands, by paying one-fourth of the price at which said lands were offered for sale in cash. ” Now, we are not aware, that the term “entered” has obtained with regard to the purchase of the school lands of the state; but if it has, it implies the doing of all which is requisite to be done on the part of the purchaser, to entitle him to a patent. But the relator does not mean that he has done this, when he says that he did so, by paying - one-fourth of the purchase money. If not, what were the terms of the purchase, that are sought to he enforced? It will not do to point us to section 1050 of the Code, as counsel have done, and say that they are those pointed out; for, under certain circumstances, which are not negatived, section 1054, requires, that those terms should be varied, either by exacting all of the money down, or by requiring collateral security. The party may say, that he has set forth that he offered to pay all afterwards. Admitted, and, what follows? Not that he would now be entitled to a mandamus to certify, without paying, which he evidently claims. Again: no request to perform the specific thing which the court may properly be called upon to compel, sufficiently appears. And whether the offer to-re-instate the party in his rights, nine days after the money was deposited,, by refunding it, was not a remedy offered, adequate under-the circumstances, queref If the relator himself was not,, up to that time, bound, to take the land, and pay the-residue of the purchase money, which does not appear, nor-any reason given for not perfecting the contract, at the time of the deposit, was it not still the right of the commissioner, to claim that Tie was not bound, on re-instating the party ? If the contract was not in fact made — its stipulations determined — there can be no question that this writ will not lie to make it; for a contract, in its essence, implies a mutual assent of minds, which no court, by this writ, or any other,, can effect.

But, again: has not the party a plain and adequate remedy at law, on the bond of the former commissioner, if the contract was in fact made, as claimed; for it was clearly his. duty to make a record of his doings on the sale of the land,. which was not done. His bond (Code,. § §24) is conditioned, among other things, that he will faithfully and impartially, without fear, favor, fraud or oppression, discharge all other the duties now or hereafter required by law. And section 336 provides, that the bonds of officers shall be construed to cover duties required by law subsequent to giving them, while section 2146 declares, that “the individual injured by breach of such bond, may sue thereon in his own name, or in the name of the obligee.” See, also, sections 2145 and 1693. How far the superintendent of public instruction, is the proper visitor in relation to the sale of school lands, we have not attempted to inquire. 'Without examining further, we are forced to the conclusion, that the writ being one of grace, and not of right, under all these circumstances of doubt, should have been refused.

Order awarding a peremptory writ reversed,- and alternative writ quashed.