12 Del. 137 | Del. Super. Ct. | 1885
Lead Opinion
On the facts alleged and not disputed in this case, I have no doubt upon the general principle involved in it, and the authorities cited in support of it, both in this country and in England, that a stockholder in any joint-stock company, or pri
Originally in England, from which country we have derived it in this State, it could only be issued by the Court of King’s Bench, and is thus defined by Lord Mansfield: “ It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions when the law has established no specific remedy, and where in justice and good government there ought to be one.” “ If there be a right, and no other specific remedy, this should not be denied.” Rex v. Baker et. al. 3 Burr., 1265. And the fact that by the recent Common-Law Procedure Act, 17 and 18 Vict. c. 125, itis provided that any party requiring any order in the nature of specific performance, may commence his action in any of the Superior Courts of Common Law in Westminster Hall, except in replevin and ejectment, and may indorse upon the writ and copy to be served that he will claim a writ of mandamus, and may renew the claim in his declaration, and if the writ is awarded in the final judgment in the case, it will issue peremptorily in the first instance, certainly shows that it has lost none of its importance and utility in the estimate of later times. The form of this statutory mandamus is very brief, and its execution is enforced by atttachment.
By the second clause of Section 3 of Article 6 of the Constitution of this State, it is ordained that the Superior Court shall have jurisdiction of all causes of a civil nature, real, personal and mixed, at common law, and all other the jurisdiction and powers vested by the laws of this State in the Supreme Court or Court of Common Pleas which were wholly superceded by it under the present amended constitution, and by statute, it is also provided that the Judges of the Superior Court, or any two of them, shall hold pleas of assize, scire facias, replevins, information and actions
Its original quality or characteristic of a prerogative writ upon the theory that it proceeded immediately from the King himself by virtue of his peculiar sovereignty in such a case, never could have existed in this State under any constitution adopted by it, and therefore, it at once became in this State a common law writ in relation to the particular cases to which it was applicable, a writ of right, but not of course, because it could only be obtained and sued out on a special application to the court in term time on a statement of the case supported by affidavit and prima fade sufficient to entitle the applicant to the remedy afforded by it; and which was also originally the case with even that still more valuable and important writ of right, the writ of habeas corpus at common law, until by the great Statute of Charles II, made it issuable at any time, in vacation as well as term time, although it must still be specially applied for aud supported by affidavit when made to the court in session or to a judge of the court in vacation.
This case, however, has been to me a novel and more embarrassing one on account of another aspect in which it has been so cogently presented to us by the counsel for the defendant, and that is, that with all the power vested in this Court to issue this writ
But of the right of the relator to the evidence which, as a member and stockholder in the corporation, he seeks to obtain within the limits of this State, for the vindication of his rights and the due administration of justice in a suit between him and others in another of our sister States be conceded, as I think it must be, what is there in the nature of the writ of mandamus as it exists, and has always existed in this State under the laws and constitution of it, that forbids this court under the facts and' circumstances presented in this case, to order the issuing of it, provided the court is satisfied that there is no other specific remedy for the legal enforcement of that right ? The answer to this question by the counsel for the defendant is not sufficient in this case in my opinion, because it proceeds, I think, upon an erroneous idea that there still inheres in the nature of the writ under our laws and constitution, such a peculiar quality or restriction, that it can only issue in such a case as this to a corporation or an officer of it under the law which created it, and in the name of the State which incorporated it, or, in other words, that no other judicial tribunal than the appropriate court in the State of Connecticut under the laws of it, can issue the writ to this corporation, or any officer of it, for any such purpose. For if that be so, then it is manifest whatever may be the legal right of the relator to the inspection and copies of the books and papers and papers in question, that he is wholly without any specific remedy in law to enforce it here or elsewhere; because it is equally certain whether we consider it a proceeding in rem or in personam, or as partaking of the nature of both, as the writ is to be specifically executed when issued, and both the custos and the books and papers are in this State, that they could not be reached by such a writ from any court in the State of Connecticut. And although that State may have the power which this has not, to forfeit or revoke the charter of the corporation, and that should be done by it, the relator would still be left without his specific remedy in the case, either there or here.
Although our constitution declares that “the style in all process and public acts shall be the State of Delaware,” and the writ is issued and prosecuted in the name of it on the complaint of the relator, the jurisdiction and authority of this court to issue it in
Well now if such be the general and fundamental principles of the law applicable to such a case, and the President of this corporation is residing in this State and City, and where it is now carrying on to some extent its corporate business, and has the books and papers of it in question in its possession and custody now in this State and within the jurisdiction of this court, and refuses to allow the relator to inspect and take copies of them for the purpose demanded of him, I am not able to perceive, after all the consideration which I have been able to give to the case, any good and valid reason for holding that the case is not within the jurisdiction of the court, or that it ought not under all the facts and circumstances alleged and not disputed in it, to award the writ, as prayed in the petition of the relator. The right of the relator to the inspection and copies which he demands being a right founded on the common law of the State by virtue of his being a stockholder in this corporation, and the res, or books and papers, as well as the corporate custos of them, being within the jurisdiction of this court, and the same principle of the common law which confers that upon the former, imposes the duty on the latter to grant it, on what principle of law or reason can it be said that the case is nevertheless not within the jurisdiction of the court, because the company was not
¡Notwithstanding the number of cases to which we have been referred by the counsel on both sides in the argument of the case, but two have been cited, one on either side, in which this particular question appears to have been involved, and which seem to be conflicting in their rulings upon it. The first to which I shall refer is the case of The People ex. rel. Jenkins, &c. v. The Parker Vein Coal Co., &c., 10 How., Pr. Rep., 543., before Mitchell, Morris and Clerke, Justices, in the Supreme Court of New York, on appeal from an order of special term refusing mandamus. The Parker Vein Coal Company, the defendant, was an incorporation of the State of Maryland. Its charter created it a corporation for the purpose of working mines of coal and iron, and for vending the proceeds of the same, and gave it power to make by-laws and all such rules and regulations as might be necessary for the proper management of its affairs. The capital stock of the company was not to exceed three millions of dollars to be divided into shares of one hundred dollars each, being thirty thousand shares. The officers of the company had issued one hundred and fifty thousand certificates of shares of stock, being one hundred and twenty thousand more certificates of shares of stock than the company by law was permitted to issue, and purporting to represent twelve millions of dollars more capital than the company possessed, or could possess as established and limited by the law of incorporation. In June, 1854, the company was insolvent and made an assignment to Romaine & Harrow of all their property of every description for the benefit of creditors. The plaintiffs were partners engaged as brokers in the purchase and sale of stocks for themselves, and for account of other persons, and had standing in their names upon the books of the company several hundred shares of the capital stock, of which they were the legal holders and owners, and they also held stock certificates in the usual form issued for a large number of its shares of capital stock and signed by its proper officers, of which they were also the legal holders and owners. One of the by-laws of the company required a book or books to be kept
The plaintiffs insisted that it was not denied that their certificates were a portion of the thirty thousand genuine certificates, and also suggested that the one hundred and twenty thousand over-issue certificates having been issued by officers of the incorporation who were authorized to issue certificates of stock, should be deemed genuine certificates.
in delivering his opinion in the case, and after commenting in the strongest terms on the invalidity and illegality of the fraudulent certificates of stock issued by the directors and officers of the company, and observing that if the books should be opened for the transfer of stock, the one hundred and twenty thousand fraudulent certificates could be indiscriminately transferred with the thirty thousand genuine certificates upon the books of the company, and would greatly confuse the evidence in relation to both classes of them, and make it more difficult to trace the false certificates, and to discriminate between the genuine and the spurious, and would enable holders of the false certificates with greater facility to put them in circulation and deceive the ignorant
The other case alluded to was The State of Nevada ex. rel. Samuel T. Curtis v. H. V. S. McCullough, 3 Nevada, 202. It arose on an application for a writ of mandamus to compel the defendant, McCullough, to deliver to the relator, Curtis, all the books and papers belonging to the office of Superintendent of The Over-man Silver Mining Company, and to admit him to the enjoyment of all the rights incident to the position. The company was an organized corporation under the laws of the State of California, for the purpose of carrying on the mining business in Nevada where the mine of the company was situated. McCullough was elected superintendent of it by the Board of Trustees to hold the office, according to the by-laws, during the pleasure of the board, and en
The existence of The Diamond Match Company, as incorporated under the laws of the State of Connecticut to carry on the business in which it is engaged in that and other states of the Union, and for that purpose to erect factories and appoint agents and employ servants in other states, has been expressly recognized by statute in this State, and even without that, its lawful right and authority to do so, if not forbidden by the laws or policy of the State, could not be called in question under the principle of interstate comity in relation to such corporations existing in the several states now so well recognized and established to its fullest extent in this and the other states of the Union. Bank of Augusta v, Earle, 10 Pet., 519.
And therefore, notwithstanding the peculiar and unusual character of it, I have not been able to discover, either upon principle or authority, any well founded objection to the jurisdiction of the court, or the redress sought by the relator in this case; and I will further say that as under the liberal and enlightened comity of the states with respect to the incorporations severally created by them, almost all of the rights and facilities for trade and commerce, buying and selling and making contracts in the line of their legitimate business, and of suing on them in the courts of this and other
The tendency of decisions in our own courts has long been to consider such corporations when plaintiffs in suits before them, very much the same as they would a natural person from the same State in a like case and position before them, but when the position is reversed, and the interest of such a corporation is on the side of the defendant in the suit, as in this' case, even the comity and favor thus extended in the former case forbids that its charter should be used as a shield of defence and a bar to the jurisdiction of the court in it.
Concurrence Opinion
concurring:—While it might be useful, under circumstances, to inquire particularly into the origin of the writ of mandamus and the redress it afforded in the course of the administration of English Jurisprudence, it is sufficient to say, that it has long since ceased to retain its original quality, and has come to be regarded as an appropriate remedy for the enforcement of private rights, where there is no other adequate remedy. In that respect, it bears a resemblance to the writ of injunction in Chancery—as to which it is the rule, that if there be adequate remedy at law, it is not to be issued. Similarly, if the party applying for mandamus have adequate legal remedy for his wrongs, it will not be granted to him.
In 24 How., 66, Chief Justice Taney, in speaking of the ancient character of the writ, says—“ It is equally well settled, that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English Crown, and was subject to regulations and rules which have long since been disused. But the right to the
What are the circumstances of this case, as presented in the petition and answer ?
A corporation exists, by a statute of Connecticut, to make and vend explosive matches. In the pursuit of its business, it had occasion to purchase real estate in Delaware in order to enable it to follow it here, with greater facility than it was then doing; accordingly application to the Legislature was made by it for a law; and, what was supposed to be the necessary authority was given by a private act recorded in this county, which is set forth in the pleadings. Acting under this enactment, this company has become the owner of real estate in Delaware, and also carries on a large
It appears that, in addition to the fact, that the Diamond Match Company carries on business here, and possesses real estate for that purpose, the President of its Board of Directors, William H. Swift, the defendant in this proceeding, resides here as a citizen. It also appears that certain books and papers of the company are in this State in his custody and control to some extent as President. It further appears, that the relator is a large stockholder in the corporation, and in the course of his business pledged his certificates of shares and the stock they represented with certain parties in Michigan, (Messrs. Buhl and Alger), as security for certain money advanced by them to him, with the understanding that they should be entitled, if the debt were not duly paid, to apply the dividends rtf the net earnings of the company applicable to those shares, to the payment of the advances.
It seems that, during a certain period mentioned in the papers, no dividends were declared by the company. The relator has commenced a suit against his pledges in the courts of Michigan to procure a surrender to him of the certificates aforesaid, upon the ground that, in fact, the pledges have received from the company dividends or division of profits, upon the shares they represent, or otherwise, on account of their having them, to an amount exceeding the money advanced by them and interest upon it. He alleges that the books and papers of the company, now in the possession of its President, the defendant here, will show that fact. He further states, that he cannot support his suit without such proof, and that he needs a copy of such portion of those books and papers as will furnish it; that he has applied to such President to allow him to inspect such books and papers and take copies of such portions of them as he needs in his suit; that inspection was granted him, but the privilege of taking copies was denied unless the directors' of the company consented—the President promising to consult them. Afterwards, upon request and demand of the right
The objection made to the grant of the application rests upon two grounds. In so stating, I treat all that was said about the nature of the writ, as affecting the action of this court, as being not only unavailable, but as being more historical and explanatory than argumentative. It was certainly, however, admirably expressed every way. Those grounds are, first, that this court is without jurisdiction in this case; second, that if it have it, a proper case for the exercise of it has not been presented.
These are formidable objections, it must be said; and, in either case, if sustained, are conclusive against the relief prayed for. Let us examine them.
In order to support the claim of jurisdiction, it would be improper to consider this as a contest between the relator and the Diamond Match Company—that corporation as a corporate body not having, from anything that appears, become in any way a party to the controversy between the relator and the defendant, William H. Swift. It is sufficient, as I conceive, for the assertion of jurisdictional power in this court, that the latter resides here, is a citizen of this State, and has in his possession as the chief officer of that corporation, and under his present control, the books and papers, copies of portions of which the relator wants to make, for use in his controversy in Michigan. This evidence he claims is essential to the support of his suit, which cannot go on without it. As the books and papers of a corporate body are the best evidence of its operations and condition, and as that condition within the period stated in the petition and affidavit, is the vital fact upon which the relator’s case depends, and there is no law by which the company can be made to produce them in the action in Michigan, it is of the first importance to the relator that he shall have the next best evidence of their contents—examined copies. He can now only get them by an order of this court in the shape of a writ of mandamus; for the defendant will not allow copies to be made, and his refusal is the result, as it appears, of the Board of Directors of the company to permit him to give his consent. Whatever the President might be willing to do, his board will not permit the
It is perfectly true, as stated in the argument, that, in contemplation of law, a corporation has its residence, or domicile, using such terms as apply to individual persons, in the State or country of its creation and nowhere else; it being an invisible, intangible creation, existing only by positive law operating only intraterritorially, it necessariUy resulted that it had efficiency in the form of its creation and not out of it. This was the original idea of corporations, and hence the proposition asserted so constantly by text-writers, and by courts, that they can have no legal existence out of their own jurisdiction. If we are to understand by this that, propria rigore, a corporation can do nothing out of the territory of the creating power, then there can be no ground for dispute about it; but when we come to look at what I have before set forth with respect to what we call inter-state comity, it will appear that such proposition must be received with the qualification which such a state of things requires. Looking at the states as integral parts of a homogeneous whole, with governmental interests of a purely common nature, it came to pass, as of course, and for the convenience of each and all, that corporate bodies for trading purposes should, with respect to the end of their creation, be allowed to act and transact everywhere, the same as those of native creations. While, therefore, it is technically true that they have no legal existence out of their jurisdiction; yet, in point of fact, all the States recognize them as, at any rate, entitled to carry on their trades in them, and to sue in their courts for the collection of money due upon contracts with them, and to recover damages for injuries to their property. It is a requirement of the state of absolute free trade between the States, that this should be so. This, of course, is matter of convenience; but it is more, it is in furtherance of the interest of the State, into which another State corporation sends its agents to reside and conduct its business, that it shall not only be permitted to dwell in peace therein, but to transact its necessary affairs without let. This privilege is no right, but is so near akin to it, as to carry with it the usual incidents of a right. And it is so extensive, that what are in fact corporate rights—the right to sue and to purchase and hold property by whatever title are conceded
Here then we have the books of the relator’s corporation in this State, and in the custody of its chief officer, with what must be held to be the consent of the directors of the company who are its legal agents; that corporation is, for the purposes of its business, the owner of valuable real estate here, in virtue of purchase under an act of Assembly the passage of which was sought by it; it carries on an extensive and valuable business, involving powers certainly of a corporate character and with the immunity in its members of. being free from responsibility, or any personal liability, for its debts or contracts; what in the name of reason is its status
Impressed as I was with the very able manner in which the opponents of this petition presented their case, and recognizing the great strength of their arguments, viewing the question to be decided from their standpoint, I cannot but feel that they were met and more than met by those presented on the side of the petitioner, which are better adapted to the consideration of the case before the court, viewed in the light of the law which now prevails all over this land with respect to corporate bodies of a private nature, and those doing business by acquiescence, in a jurisdiction in a technical sense alien to that of their creation.
Having now treated the subject as fully as the exigencies of
Dissenting Opinion
dissenting:—A company was incorporated in the State of Connecticut, under the name of “ The Diamond Match Company” and to enable them to carry on their business in this State under a corporate name, application was made to the Legislature for a law authorizing them to do so and a private act was passed, which is set out in the pleadings. What authority that act confers upon them is not a matter necessary for this court to determine for the purposes of this case. It is sufficient to know that this company having its existence under and by virtue of the laws of the State of Connecticut, does carry on the business of manufacturing matches in this State, and the President resides here, and has a portion of the books and papers belonging to the company in his possession and custody. And it further appears that the relator is a large share or stockholder in the company, and for the purpose of enabling him to raise a sum of money which he desired to have at the timé, pledged his certificates of stock to Messrs. Buhl and Alger as collateral security, who advanced to and loaned him a certain amount of money mentioned in the relator’s petition and other proceedings, under an agreement, that if the money so loaned and advanced was not at the time designated for payment, duly and promptly paid, that the net earnings of the company so far as the same were applicable to the shares or stock so pledged should be applied to the payment of the money so loaned and advanced to the relator, David M. Richardson, by the said Buhl and Alger, it appears by the evidence before us that for a period of time set forth by the relator’s petition and other papers, no dividends were declared by the Company.
The relator, David M. Richardson, has instituted suit against the holders of his stock in the Court of Chancery of Michigan, for the purpose of obtaining a surrender of his certificates of stock on the alleged ground that the holders of it, for the purpose, hereinbefore mentioned, have received from the company, dividends or profits from the stock so held by them, to an amount exceeding the sum advanced and loaned by them to the relator,
On this statement of facts, the relator bases his application for a writ of mandamus to compel the defendant, Wm. H. Swift, to allow the relator not only to inspect the books and papers of the company, which is a right conceded to him and heretofore allowed him, but to take copies of all, or such portions thereof as he may think proper to have and use for any and all purposes whereby they would be made public. The application is resisted on two grounds, first, the want of jurisdiction in this court to grant or award the writ, and secondly, on the ground that if the court has jurisdiction a proper case has not been presented for the exercise of it.
The writ is asked for in this case to compel Wm. H. Swift, President of The Diamond Match Company, a foreign corporation, to allow the relator to take or have copies made of the contracts, books and papers of the company to be used in the courts of another State, not even that which created the corporation, arid in a suit to which The Diamond Match Company is not a party, and in nowise interested in the litigation; but between a stockholder and persons from whom he borrowed money on the pledge of his stock.
All proceedings instituted for a writ of mandamus are in the name of the State of Delaware, and why is it so ? Because in cases where this extraordinary remedy is resorted to or sought, the State or people have relation to or are interested in the subject matter
In England, the writ is called an extraordinary remedy, pertaining to the sovereignty of the State or people, and was introduced to prevent disorder by reason of a failure of justice, and a defect of the police force. High on Ext. Remedies; Tapping on Mandamus, 76 Law. Lib. 58 ; 2 Potter on Corporations, Sec. 635.
The writ is a proper remedy and will be granted to compel inferior courts to exercise their jurisdiction, but not to dictate their action, or to control them in the exercise of their discretion. It is the proper remedy, and it is made available by our courts to compel public officers to perform specific duties imposed upon them by law. It is also the proper remedy to compel corporations to perform duties or functions which are of a corporate character, and made obligatory on them by the act of incorporation or other law.
But can it be supposed for a moment that these inferior courts, public officers and corporators can be of foreign States, and brought under the superior control of the extraordinary remedy, the writ of mandamus or is it not manifest that they must be of the State in which, and by whose court the mandamus issues? How can this court, enforce by mandamus, duties imposed by the law of Connecticut on its corporations, any more than it can enforce the performance of the duties of its public officers, or compel the exercise of the jurisdiction and discretion of the inferior courts of that State?
It is true that our courts have become more liberal in the exercise of their discretion in granting writs of mandamus in cases of corporations; but the ground and object of the jurisdiction are still the same, that is, that the State having an interest in corporate bodies created by it and protected by its laws the people have a right to see that all such bodies or corporations, conform to the
All the elementary books are in unison as to the authority from whence the jurisdiction eminates, that is from the sovereign power in the name of the State or people directed to some subordinate tribunal, corporate body, or public officer.
All within the jurisdiction of the court from and by which it is issued requiring and commanding the performance of some specific legal duty, or the surrender of some clear legal right. I think very nearly if not all the cases cited in support of the relator’s side of the case, are within the principle which I have just enunciated, and I am not aware of any case to which our attention has been called, on the authority of which this court could award the writ of mandamus on the facts before us in this case.
A great many cases have been cited and we have been referred to a variety of cases, decided in other States; but not one like the relator’s that we are now considering—that the writ will be issued to compel inferior courts to exercise their jurisdiction and discretion, to compel public officers to perform their duties and functions, and to require corporate bodies to comply with the law of their creation, no one doubts; but it is equally true and undoubted that there must not only be jurisdiction in the court awarding the writ, but the right to it must be clear and undoubted; all the books concede this to be the law applicable to the remedy by mandamus.
We are not without some light to guide us in the decision of this case, eminating from the decisions of our own courts. In the case of the Union Church, v. Sanders, decided by the Court of Errors and Appeals, Chancellor Johns in delivering the opinion of court, said: “ The first and most important question is that of “ jurisdiction. For the purpose of ascertaining correctly whether “ the Superior Court had authority to award the writ of peremptory mandamus, it is necessary to examine and understand the “ character of the injury complained of by the petitioner, and the “ remedy which he has sought to obtain. If no legal right has “ been violated there can be no application of a legal remedy. The
And in the case of Cannon et al. v. Janvier et al., 3 Houston, 31, the court said: “ The writ of mandamus is a prerogative writ, as it is termed in the law, by which the Court of King’s Bench in England exercises its supreme jurisdiction over public bodies and officers in the administration of justice in cases in which the law has provided no adequate or specific remedy, to prevent a failure of justice, and has been peculiarly applied to the regulation of corporations for the purpose of compelling them to observe the ordinances of their constitution and to perform their specific duties, and to respect the rights of those who are entitled to participate in their "privileges.” Wilk. on Mun. Corporations, 14 Law Lib., 193.
These cases were both church cases, and all the parties residents of our own State. The case I am now considering is a very different one indeed, and I think without a precedent. The corporation was created in Connecticut, the relator resides in Michigan, the defendant, Wm. H. Swift, resides in Delaware, and the suit in which it is alleged the copies of the books, contracts and other papers of the Diamond Match Company are desired to be used is pending in the State of Michigan, between parties resident there.
What legal right has been denied or withheld from the relator by the Diamond Match Company, or by Wm. H. Swift, its President ? What clear and undoubted legal right has he shown himself to be entitled to, of which he has been deprived ? It is not that he has been denied the privilege of examining and inspecting the books and papers of the Company in the custody and possession of the defendant, for he admits he has been allowed to do that; but it is said for him that he was not allowed to take copies of them. True it is he was not permitted to take copies of the books and papers, and the defendant refuses to allow him to do so under an express order of the directors or managers of the company, under whose control and direction he is as one of the board and the President thereof. The directors or managers, with the single exception perhaps of himself, reside in Connecticut, certainly not in Delaware. How is it not manifest that the corporate body should have been made a party to this proceeding ? The relator is
The relator is a stockholder in The Diamond Match Company; and had the right to vote for directors or managers, and perhaps did, but whether he did or not is perfectly immaterial for any purposes of this case. It is presumable that all incorporated companies make and adopt rules and by laws for their guidance in the management of their business. Whether this Diamond Match Company has a by-law stipulating the time when stockholders are permitted to examine the books and accounts, or whether it has one prohibiting stockholders from taking copies thereof, I am not informed; but if there be such by-laws, the relator is bound and concluded by them, and for that if for no other reason, would not be entitled to this extraordinary remedy, a writ of mandamus. Tapping on Mandamus, 83, 76 Law Dib., 132.
It has been very truly said that no charge has been made against the corporation of improper management, as being prejudical to the interests of the relator—no charge that the relator is or has been deprived of any office, status or right that legally belongs to him in the said corporation, nor that he is denied in any way participation in the control or management of its business. He does not seek to be permitted to perform his duties and to exercise his right as a director, nor to be permitted to have all the privileges of a corporator, nor to inspect the books, nor to compel the performance of a corporate duty, specially imposed on any particular officer of the company, by the laws of Connecticut, or by the ordinances or by-laws of the corporation. He admits the privilege of inspecting books and papers has been allowed him; but he asks that copies of the contracts, books and papers of the company be
In view of all the facts of this case, as presented to us and the law applicable to it, I am of the opinion that this court has no jurisdiction, and if it had, the case presented for our consideration is not a proper one for the exercise of it, and therefore the relator’s application for a writ of mandamus ought to be refused.