State ex rel. Wright v. Savage, 64 Neb. 684

State ex rel. Wright v. Savage

64 Neb. 684 | Neb. | 1902

Lead Opinion

Sullivan, C. J.

This is an application to this court in the exercise of its original jurisdiction for a writ of mandamus commanding respondent, as governor of the state, to appoint fire and police commissioners for the city of Omaha. In his answer to the alternative writ respondent denies the authority of the court to coerce executive action in any case, and alleges that by reason of the judgment in State v. Moores, 55 Nebr., 480, performance of the duty enjoined by the statute (sec. 167, ch. 12a, Compthed Statutes, 1901) would be necessarily barren of practical results, A com*695plete history of the litigation in which the present action had its origin will he found in some earlier opinions of this court (Moores Case, supra; State v. Kennedy, 60 Nebr., 300; Redell v. Moores, 63 Nebr., 219) to which reference is made. It is conceded that the statute directs the governor, in imperative terms, to do just what the relator has requested him to do. “Immediately on the taking effect of this act, the governor shall appoint.” This is the language of section 167; and it is therein further provided that “whenever a vacancy shall occur in any board of fire and police commissioners either by death, resignation, removal from the city or any other cause, the governor shall appoint a commissioner to fill such vacancy.” It is also conceded that this is a constitutional and valid law, but it is claimed that authority to enforce it has not been committed to the judicial branch of the government. The argument is that the three departments into which all governmental powers axe divided are co-ordinate; that each is entirely independent of the others, and that-the issuance of a mandamus against the governor, in whom is vested the supreme executive power, is justifiable only on the theory that the executive department is inferior to the judicial department and that the right of command is given to one, and the duty of obedience imposed upon the other. This argument is certainly plausible, but whether it is sound is a point upon which the adjudged cases are in irreconcilable conflict. The right of the courts to determine all judicial questions, whenever and however they may arise, is given by the constitution in explicit terms and is indisputable; but equally clear and incontestable is the right of the executive officers named in the constitution to exercise all powers properly belonging to the executive department. There is an obvious logical difficulty in maintaining that two departments of government are of equal rank, and independent of each other, if one may command and the other must obey. A member of the executive department who performs an official duty in obedience to a writ of mandamus is a *696passive instrument in the hands of the court; he is not in any proper sense an actor; he executes, not his own purpose, but a purpose originating in the judicial department of the government; he is in truth nothing more than the agency through which the court exercises an executive power. Considering the matter theoretically,- and leaving practical results and past adjudications entirely out of view, it is hardly possible to escape the conclusion that the farthest limit of judicial authority in cases of this kind is to hear and determine; to give judgment establishing the relator’s right, without issuing compulsory process to the respondent, whether he be the chief magistrate or some other member of the executive department. There seems to be no good reason for holding that one member of a co-ordinate branch of the government should be exempt from judicial control and the others subject to it. The principle of exemption from mandamus is grounded upon a distinct constitutional inhibition and does not at all depend upon official rank. Constitution, art. 2, sec. 1. As was said by Chief Justice Marshall in Marbury v. Madison, 1 Cranch [U. S.], 137, “It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.” Our own decisions make no distinction between the governor and the other officers of the executive department. Whether the writ should be granted or refused has been made in every case to depend upon the character of the act in question and not upon the office of the respondent. The argument that the judiciary in issuing a mandamus against a member of the executive branch of the government is thereby indirectly, and in violation of the constitution (art. 2, sec. 1), exercising a power properly belonging to the executive department, has never appealed convincingly to this court. In numerous cases the writ has gone against the auditor; and the right to issue it to any officer of the executive department, including the governor, is so thoroughly established by repeated *697decisions that the question can be no longer regarded as open to discussion. All judicial controversies must end some time and this one seems to have run its course. It must be admitted that, according to the clear weight of authority, the chief executive can not, under any circumstances, be controlled by the writ of mandamus; but in this state, and in some other jurisdictions, a different rule prevails. The doctrine of this court is that when the law in positive terms enjoins upon the governor, or other officer of the executive department, a mere ministerial duty, leaving him no choice or discretion in regard to the •matter,—no judgment to exercise as to whether he will or will not act,—the writ of mandamus may issue, and its issuance is an appropriate exercise of judicial power. In State v. Thayer, 31 Nebr., 82, a mandamus was issued against the governor and other executive officers, constituting the state board of canvassers, commanding them to canvass the votes cast for the relator as a candidate for judge of the sixth judicial district. In that case the court considered the authorities bearing upon the right of the judiciary to issue a coercive writ against the governor of a state, and reached the conclusion that the correct rule is that laid down in Maxwell’s Pleading & Practice, page 735, in the following language: “There is a conflict in the authorities as to the right of a court to grant a mandamus against the governor of a state to compel the performance of a merely ministerial duty. That the courts have jurisdiction in such cases there seems to be no doubt. In a free government no officer is above the law, and should not be permitted to disregard it with impunity. No good reason can be given why a governor, whose duty it is to see that the laA-rs are executed, should himself be permitted to set them at defiance.'’ In State v. Elder, 31 Nebr., 169, which was an application for a mandamus to compel the speaker of the house of representatives to- open and publish the returns of a general election, the court said, in an opinion allowing the writ, that the leading cases denying the authority of the courts to mandamus *698ike governor of a state had been again examined and dis approved. In State v. Boyd, 36 Nebr., 60, the court took cognizance of an application for a mandamus to compel the governor to approve a bill of the State Journal Company for blanks and stationery. In State v. Boyd, 36 Nebr., 181, this court determined on the merits an application for a mandamus to compel Governor Boyd to issue a proclamation for the election of three additional members of congress. The writ was denied, not for want of jurisdiction, but because the right to apportion representatives among the states belongs exclusively to congress. State v. Holcomb, 46 Nebr., 88, was a case in which the court tried and determined a controversy involving the relator’s right to a writ of mandamus commanding the governor to approve an official bond. It is true that in some of these cases the jurisdiction of the court was not challenged, but that circumstance is not important. In determining the cases on the merits the court necessarily decided in favor of its own jurisdiction. The authority of the courts in such cases does not, of course, depend upon the consent of the respondent. If jurisdiction exists it is given by law and does not rest upon mere official complaisance. State v. Stone, 120 Mo., 428. It seems to be conceded that the relator has a sufficient interest in the performance of the particular duty enjoined by the statute to entitle him to maintain this proceeding if the court has jurisdiction to entertain it. And it is evident that the refusal of the governor to discharge the duty of appointing fire and police commissioners for Omaha was not influenced in any degree by the character or quality of the act which the law, in imperative terms, directs, him to perform. In other words, the position taken by respondent is not defended on the ground that the appointment of commissioners would not be the performance of a ministerial duty. The defense rests upon broader ground; it is that there is no authority in the court to coerce the governor, in any ease, or under any circumstances, to exercise an executive power. Tim conclusion *699to which we are compelled by our own decisions is that we have, not only jurisdiction to decide the controversy, but authority to issue the peremptory writ to enforce our decision. Whether the peremptory writ should actually issue in a case of this kind is a question of great delicacy and one which we do not here decide. Speaking of the cases in which the power of the courts to mandamus the governor is asserted, Mr. Freeman says in the note to Greenwood v. Routt, 31 Am. St. Rep. [Colo.], 284: “Whthe it must be admitted that these cases by no means constitute the majority of those bearing upon the subject, yet they seem to us to be based upon the better reasoning, and more in accord with what has been the long adopted policy of the highest judicial tribunal in the land, the supreme court of the United States.” Nothing further need, we think, be said on the question of jurisdiction.

The second proposition discussed by counsel was decided in the Kennedy Case, and was, we think, decided rightly. The doctrine of res judicata is that a question once determined by a judgment on the merits is forever settled, so far as the litigants and those in privity with them are concerned. The question decided is, whthe the decision stands, a sealed and closed question; the final judgment, sentence, or decree fixing the rights of the parties ends the controversy, and is in any future litigation conclusive evidence of those rights. Counsel for relator concede the general rule as to the conclusiveness of judgments, but insist that it has no application to a case in which a sovereign state is seeking to enforce obedience to its laws. In other words, counsel contend that the state, being vested with absolute power to govern society, and having supreme authority to make and administer laws, is not bound by an adverse adjudication in a matter pertaining to its sovereignty. “If such were the rule,” said Mr. Justice Story in Gelston v. Hoyt, 3 Wheaton [U. S.], 246, 317, “it would be a perfect anomaly in the law and utterly subversive of the first principles of reciprocal justice.” The fundamental conception of a judgment is *700a judicial decision binding upon all the parties to the controversy. As defined by our own statute (sec. 428, Code of Civil Procedure) it “is the final determination of the rights of the parties in an action.” By this statute the state has declared the legal effect and consequence of a judgment; it has said that, as between the parties, the judgment shall end the controversy and end it forever. The state, in the exercise of its governmental functions, is not obliged to invoke the aid of the courts in any case; but when it does so it assumes the character of an ordinary suitor, and is bound by self-imposed restraints; it claims' no advantage over its adversary, and, though one is a sovereign and the other a citizen, they stand equal before the law. This is a just principle, and in it we see no serious danger to the public weal. It was recognized and enforced in England without judicial dissent as far back as the Duchess of Kingston’s Case, 20 State Trials, 355. And in the highest court of this country it was early held, by the unanimous' opinion of the judges, that the government was conclusively bound by a decision rendered against it in its sovereign character. Gelston v. Hoyt, supra. When a state brings an action for the enforcement of its criminal or revenue laws, it acts, of course, in its governmental capacity, but it is bound, nevertheless, by an adverse decision. The question decided can not be again litigated between the same parties, either in a civil or criminal case. Coffey v. United States, 116 U. S., 436; New Orleans v. Citizens’ Bank, 167 U. S., 371. Notwithstanding what has been said by counsel for relator, we are still of opinion that Holsworth v. O’Chander, 49 Nebr., 42; O’Connell v. Chicago T. R. Co., 184 Ill., 308, and People v. Smith, 93 Cal., 490, are direct authority upon the point wa are now considering. In ea,ch of these cases the state was asserting a right on behalf of the general public; it was endeavoring as a sovereign power, to execute a public law; it was not seeking to recover or establish title to corporate property; and yet it was held to be concluded by the former adjudication, not on the untenable theory *701that it was a party to the litigation only in its corporate capacity, but because the decision was, in accordance with the general rule, indisputable evidence of the rights of the litigants. McClesky v. State, 4 Tex. Civ. App., 322, is also directly in point. In that case the state was surely acting in its governmental capacity; it was seeking to prevent the usurpation of a franchise, and to oust the defendants from holding and exercising offices that liad no legal existence; it was endeavoring, as the relator in this case is, to put the administration of public affairs in the hands of the duly constituted agents of the public.

The right of the state to oust the present members of the board of fire and police commissioners of the city of Omaha has been once tried and determined, and, under existing conditions, the judgment rendered is an effective bar to another suit for the same purpose. The right of the mayor’s appointees to hold the offices was the thing adjudged in State v. Moores, and it is the only thing to be adjudged in this action. The decision in the Moores Gase is not law, but for the purposes of this litigation it stands in place of the law. The governor may, of course, appoint, but in the face of a plea of res judicata we can not put his appointees in possession of the offices. The court is held in bondage by its own error. St at pro ratione voluntas is the rule of decision for this case.

The writ is denied.

Weit denied.

Concurrence Opinion

Holcomb, J.,

concurring.

I concur in the point stated in the 6th paragraph of the Syllabus and what is said in the opinion with respect thereto. Further than that I express no opinion on the subject of the jurisdiction and authority of the court to coerce by mandamus the chief executive of the state.

*702On the question of the doctrine of res judicata as held, and applied in this case I concur in all that is said and decided in the opinion. •

Rehearing

The following opinion on rehearing was fthed July 22, 1902:

1. Abstract Questions of Law: Subject of Litigation: Beal Parties: Bes in Dispute: Bes Judicata. Abstract questions of law can not. be made the subject of litigation. There must be v real parties, and a res in dispute that will become res judieala when the litigation is determined.

3. Former Determination: Fire and Police Commissioners: Appointment by Mayor and Council: Governor. The former determination of this court that certain parties were entitled to hold the office of fire and police commissioners of the city of Omaha, under the appointment of the mayor and council of the city, is not binding on the governor, so as to prevent his appointment of commissioners under the provisions of the act for the incorporation of metropolitan cities.

3. Bight of Parties: Bes Judicata. The right of the parties in that litigation to the term in dispute therein is res juiMeakt, but the principle of law announced, having been found erroneous and overruled, will not be followed.

Sedgwick, J.

After the former opinion in this case the relator fthed what is by him denominated a motion for a new trial. This being an original action in this court, relator assumed that he was entitled to use this form of motion. After argument the court announced to the parties that the motion would be treated as a motion for a rehearing under rule 7, and not as a motion for a new trial. The reason for this view is that a new’' trial is a reconsideration of an issue of fact (Code of Civil Procedure, sec. 314), and in this case no evidence was taken and no issue of fact was presented. The sole office of the motion is to point out errors in the former opinion of the court. This is the province of a motion for rehearing. First Nat. Bank v. Yocum, 12 Nebr., 208. The court, after argument, being desirous of further considering the question presented, both parties wmre allowed time to fthe further briefs, and *703the case was submitted as upon argument after rehearing had been allowed.

The power of the legislature to impose upon the governor the duty of appointing the board of fire and police commissioners for the city of Omaha was declared in Redell v. Moores, 63 Nebr., 219, overruling State v. Moores, 55 Nebr., 480, 41 L. R. A., 624. This question has not been discussed in the present proceeding, both parties regarding the matter as settled. Upon the former hearing there was much discussion upon the question whether the general rule as to the conclusiveness of judgments can be applied to sovereign states whthe acting in governmental capacity, and in the opinion (State v. Savage, ante, p. 684) it is said: “The state, in the exercise of its governmental functions, is not obliged to invoke the aid of the courts in any case; but when it does so it as-, sumes the character of an ordinary suitor, and is bound by self-imposed restraints; it claims no advantage over its adversary, and, though one is a sovereign, and the other a citizen, they stand equal before the law.” Upon the present hearing, the application of the rule in this case has been much discussed. The doctrine of res judicata requires that when a thing is determined by a court of competent jurisdiction the parties to that litigation shall not be allowed in any other case to retry the matter. The rule is of universal application. No proper party to litigation, whether sovereign or subject, is exempt from its control. To apply the rule it is necessary first to ascertain what issue was determined in the former litigation. It is said by respondent’s attorneys in their brief:

“In the Moores Case the parties based their respective claims wholly upon the source from which they were derived. There was no common source. They claimed through entirely different sources. Whthe the immediate question was the right to the offices for a limited term, a determination of that question necessarily involved a determination as to the location of the appointing power. A determination of that question was necessary, impera*704tive and unavoidable. A decision of the case could not be reached without first deciding that question. When that was determined the whole case was determined. That was the only question debated or decided. In whom was the appointing power, in. the governor or the mayor? That was the only question submitted to the court, and the only question argued.or decided.”

This is a very plausible statement of the point insisted upon; but is it entirely sound? It was undoubtedly necessary to “determine the location of the appointing power” but was that the thing (res) in litigation, the substantive matter that the respective parties were contending for? Or was it a proposition of law called in to assist in determining the right of the respective parties to the thing in controversy?

That action was begun on the relation of the attorney general against J. H. Peabody et ah, who were appointed by the governor. They answered, setting up their appointments as members of the board of fire and police commissioners for the city of Omaha. Peter W. Birkhauser et al., upon their application, were allowed to intervene, setting up their right to the office by virtue of an appointment from the mayor and council of the city. Each party demurred to the pleadings of the other, and the question presented was, which party, under the law, is entitled to hold the office,—the respondents for the term for which' they had been appointed by the governor, or the interveners for the term for which they had been appointed by the mayor and council?

The object of the attorney general undoubtedly was to obtain from this court a construction of the law; that is, to ascertain whether, under the law, the governor should appoint, or the duty devolve upon the city authorities. That was the question argued by counsel, and discussed and decided by the court; but was it, in the legal sense, the subject-matter of the litigation? It seems clearly not. If the question had been presented to the court as the thing to be litigated, it would not have entertained it. *705The relator would have been told that this was not a moot court. Abstract questions of law can not be made the subject of litigation. There must be real parties, and a res in dispute that will become res judicata when the litigation is ended. In the Moores Case the thing in dispute was the office itself, and it was determined that the interveners were entitled to the office for the term of their appointment, and respondents were ousted. This ds res judicata. And in State v. Kennedy, 60 Nebr., 300, some of the respondents were, still holding the terms adjudicated in the former case, and the doctrine of res judicata was applied.

In the determination of a case legal principles are invoked, and the conclusion of the court thereon announced. Whether such conclusions shall be followed, without further investigation, in subsequent litigation, frequently depends upon the principles of stare decisis. When such conclusion becomes a rule of property, it is adhered to until changed by statute; but when no rule of property is established, it is the duty of the court to re-examine and overrule its former decision when shown to be fundamentally wrong. State v. Hill, 47 Nebr., 456. The thing determined by the litigation becomes res judicata, and can not be afterwards questioned between the parties, although' the rule of law by which the decision was controlled is afterwards found to have been incorrectly applied, and such application is no longer binding upon the court. The former is res judicata, and the latter is to be measured by the principles of stare decisis.

It being conceded that no legal appointments have been made, and that there are no legal incumbents of the office, and that the law requires the governor to make the appointments, it is manifest that he is not prevented from, so doing by an erroneous determination of the right of certain parties to a prior and different term. We conclude, therefore, that it is now the duty of the respondent to appoint a board of fire-and-police commissioners for the citv of Omaha under the statute in question. '

Notk.—Mandamus.—Governor.—Political Power.—Ministerial Act.—Patent to Public Land.—The action of a governor in the exercise of his political or executive functions, whether conferred by the constitution or by statute, can not be controlled by mandamus. Greenwood v. Routt, 17 Colo., 156. If in the exercise of some power, neither political nor essentially pertaining to government, the law specially enjoins upon the governor the performance of some particular act under circumstances in which he has no discretion, and he refuses to perform the act, and by his refusal a party is deprived of his property or other legal right, the injured party may have relief by mandamus against the governor, if there is no plain, speedy and adequate remedy in the ordinary course of law. Greenwood v. Routt, 17 Colo., 156. Where public land has been regularly sold by the state land board, the purchaser or his assignee in good faith, is entitled to a patent therefor to be signed by the governor and otherwise attested as the law directs, whenever such purchaser or his bona-fide assignee has paid or tendered the full purchase price with lawful interest as the law provides, and has otherwise complied with the conditions of the purchase; and under such circumstances mandamus is an appropriate remedy in case of a refusal to execute and deliver a patent. Greenwood v. Routt, 17 Colo., 156. Where the governor recognizes an act as legal and is proceeding to execute its provisions, the courts can not directly interfere with the discharge of his duties and restrain him from executing the law, merely because it is alleged the law is unconstitutional. Frost v. Thomas, 26 Colo., 222. Campbell, C. J., dissenting.

*706The majority of the court is satisfied with the decision in Redell v. Moores, supra, but as it is not questioned in this proceeding, the writer has made no investigation of the questions therein discussed.

In the former opinion in this case it was said: “Whether ' the peremptory writ should actually issue in a case of .this kind is a question of great delicacy, and one which we do not here decide.” There has been no further discussion of that question by counsel, and we do not feel called upon now to determine or further consider it. It is not to' be supposed that the peremptory writ will be necessary.

The judgment entered in this case is modified in accordance with this opinion.

Judgment accordingly.

Holcomb, J.

I am not prepared to express an opinion different from the one heretofore concurred in by me.

Our state government is divided into three co-ordinate branches— executive, legislative and judicial—each of which, by the constitution, has its powers limited and defined. They are of equal dignity, and within their respective spheres, equally independent. Frost v. Thomas, 26 Colo., 222, 223. The act of the. legislature in question in Frost v. Thomas, was the creation by the legislature of the new county of Teller. It was claimed that the law creating the county was unconstitutional. Chief Justice Campbell’s dissent was based on his claim that Frost v. Thomas overruled the doctrine laid down in Greenwood v. Routt. In 1859, Willis Lago, a free negro, was indicted for assisting a slave to escape from her owner. Lago afterwards fled to the state of Ohio. Governor Magoffin of Kentucky demanded his rendition from Governor Dennison of Ohio. The latter submitted the question to Wolcott, attorney general of the state, who advised that the requisition be dishonored because the offense charged was neither treason, felony nor a crime malum in se; that it was an offense unknown to the law of Ohio, and also not described as a crime by the statute of Kentucky. An application for a writ of mandamus was made to the supreme court of the United States. Taney, C. J., delivered the opinion, which was to the effect following, viz.: (1) The court had jurisdiction by virtue of the constitution, without any act of congress; (2) a suit by or against a governor is a suit by or against a state (see State v. Chicago, R. I. & P. R. Co., 61 Nebr., 545, 62 Nebr., 123); (3) mandamus did not issue by any prerogative power, but in modern practice was an ordinary suit at law; (4) the words “treason, felony or other crime” (U. S. Constitution, art. 4, sec. 2, clause 2) meant every offense made punishable by the laws of the extraditing state; (5) it was the duty of the governor of Ohio to surrender Lago on demand of the governor of Kentucky; (6) the duty of the governor in the premises was merely ministerial; (7) but in a case of this kind the governor could not be coerced by the judiciary, not even by virtue of an act of congress. Kentucky v. Dennison, 24 How. [U. S.], 66. Nebraska.—Mandamus can not be invoked to determine a title to an office. Anderson v. Colson, 1 Nebr., 172. Mandamus can not be invoked to compel commissioners of public lands and buildings to issue warrant to subcontractor for the erection of a public building. People v. Butler, 2 Nebr., 5. Mandamus is a proper remedy to compel a sheriff to appoint appraisers under the exemption law. People v. McClay, 2 Nebr., 7. The application and the answer are the only pleadings known to mandamus. When a demurrer is fthed and overruled, the writ issues as of course. People v. Hamilton County, 3 Nebr., 244. Mandamus will not lie to compel county commissioners to adopt certain plans and specifications accompanying a bid. People v. Commissioners of Buffalo County, 4 Nebr., 150, 161. Mandamus will lie to compel a justice of the peace to hold his office in the precinct from which he is elected, and any citizen thereof may maintain the action. State v. Shropshire, 4 Nebr., 411. Mandamus doe<« not lie to compel a school treasurer to pay money to another district treasurer, unless the demand is accompanied by an order pronerly countersigned. People v. Hodge, 4 Nebr., 265. Mandamus does not lie for the removal of a county seat, where it appears that fraudulent votes cast in favor of the new location were sufficient to change the result. State v. Thatch, 5 Nebr., 94. Mandamus lies-to compel county commissioners to levy tax for payment of judgment. State v. Buffalo County, 6 Nebr., 454. Mandamus lies to compel the debvery of state property unlawfully held. State v. Bacon, 6 Nebr., 283. The application must show prior demand and refusal and a duty imposed by law. Kemerer v. State, 7 Nebr., 130. An alternative wilt must contain a statement of all necessary facts. State v. School District, 8 Nebr., 92. Writ never g-ranted in anticipation of omission of duty. Idem. Verification should be absolute even in an ex-parte proceeding. State v. School Districts, 8 Nebr., 98. A stockholder of a corporation may compel its officers, by mandamus to make and publish the statement required by statute. Smith v. Steele, 8 Nebr., 115. In an application for mandamus to compel the payment of bonds, the g-eneral allegation that they were issued “for works of internal improvement” is insufficient. State v. Thorne, 9 Nebr., 458. A sheriff or constable who refuses to deliver property to the party entitled thereto can be coerced by mandamus. State v. Cunningham, 9 Nebr., 146. Mandamus does not lie to compel a sheriff to deliver property upon a judgment in a trial of right of property. State v. Gillespie, 9 Nebr., 505. What petition mnst show. State v. Otoe County, 10 Nebr., 19. Will not lie to compel commissioners to levy a tax to pay judgment of U. S. court on precinct bonds. State v. Dodge County, 10 Nebr., 20. Alternative writ will not issue unless relator is clearly entitled to relief. State v. Helmer, 10 Nebr., 25. Mandamus is invoked merely to compel action; it creates no new powers and is not a proceeding to correct errors. State v. Nemaha County, 10 Nebr., 32. Error can not be reviewed in an application for mandamus. State v. Powell, 10 Nebr., 48. Clerk may be mandamused to canvass a vote. State v. Hill, 10 Nebr., 58. Mandamus can not be substituted for quo warranto. State v. Palmer, 10 Nebr., 203. The writ will not issue io compel commissioners to audit account. State v. Furnas County, 10 Nebr., 361. The writ will not issue to coerce the payment of a judgment against a county pending garnishment proceedings. State v. Otoe, 10 Nebr., 384. A district judge can not grant the writ in vaca tion. State v. Pierce County, 10 Nebr., 476. Any citizen may enforce -a matter of public right by mandamus. State v. Stearns, 11 Nebr., 104, 106. Writ will issue to compel payment of county warrants. State v. Gandy, 12 Nebr., 232. Writ granted to compel clerk to account for fees. State v. Whittemore, 12 Nebr., 252. Writ will not issue to compel the release of exempt property. State v. Sanford, 12 Nebr., 425. Mandamus is an action at law not reviewable on appeal—in the statutory sense of that word. State v. Lancaster County, 13 Nebr., 223, Writ will not issue to compel action by county commissioners, in the case stated [basis to levy and estimate]. Lancaster County v. State, 13 Nebr., 523. Application must show that relator is entitled to the writ. State v. Wallichs, 13 Nebr., 278. Writ will issue against county commissioners to include in estimate sufficient, within legal limit, to cover claims. State v. Gosper County, 14 Nebr., 22. Writ issues only when relator has clear right, and no remedy in ordinary course of law'. State v. Omaha, 14 Nebr., 265. Application for writ compelling removal to new county seat; answer of fraud and illegal voting, without statement of facts. Hunter v. State, 14 Nebr., 506. Board of equalization can be compelled to act by mandamus—dictum. Sumner v. County of Colfax, 14 Nebr., 524, 525. Lies only to control purely ministerial acts. State v. Kendall, 15 Nebr., 262. Lies to compel can vassing' board to reassemble and complete canvass of election. State v. Peacock, 15 Nebr., 442. Writ will issue to compel a district judge to sign bill of exceptions after expiration of his term of office. State v. Barnes, 16 Nebr., 37. Demurrer lies to alternative writ; if overruled, respondent has rig’ht to answer. Long v. State, 17 Nebr., 60. In absence of affidavit on which writ issued at nisi-prius, the allegation of citizenship will be presumed. Long v. State, 17 Nebr., 60, 62. Writ lies to compel clerk to canvass returns of election. Long v. State, 17 Nebr., 60, 61. Application for writ against sole incumbent, .will abate with his tenor, except the incumbent resign to avoid the writ. State v. Guthrie, 17 Nebr., 113. Writ lies to compel telephone company to furnish instruments. Webster Telephone Case, 17 Nebr., 126. Writ will not lie, at instance of taxpayer, to compel clei'k to report fees, unless board refuses to act. State v. Sovereign, 17 Nebr., 173. Writ does not lie to compel issuance of execution when a defective stay bond has been amended correctly. State v. Russell, 17 Nebr., 201. Writ will lie to compel performance of ministerial duties. State v. Cummings, 17 Nebr., 311. To compel marshal in city of- first class to report names of all engaged in liquor traffic. State v. Cummings, 17 Nebr., 311. Alternative writ may be canceled by court. State v. Matley, 17 Nebr., 564. Writ will no.t lie to compel the acceptance of highest bid for leasing of school lands, unless there is an abuse of discretion. State v. Scott, 17 Nebr., 686. Writ lies to compel county board to act on complaint ag'ainst county officer. State v. Saline County, 18 Nebr., 422. Writ lies to compel license board to appoint day for hearing remonstrance. State v. Reynolds, 18 Nebr., 431. Court will not determine constitutionality of election law, on application for writ to call an election. State v. Douglas County, 18 Nebr., 506. Writ does not lie to compel board of educational lands and funds to award lease. State v. Scott, 18 Nebr., 597. Writ lies to compel school officers to allow children to attend school in district to which land of parents has been attached by order of county superintendent. State v. Palmer, 18 Nebr., 644. Writ does not lie to fix supersedeas bond in case stated. State v. Judges, 19 Nebr., 149. Writ lies to compel issuance of order of sale. State v. Thiele, 19 Nebr., 220. Writ lies to compel certification of bonds legally issued. State v. Babcock, 19 Nebr., 230. Writ lies to compel letting of contract for county supplies to the lowest bidder. State v. Saline Comity, 19 Nebr., 253. Writ does not lie where county board rejects all bids. State v. Saline County, 19 Nebr., 253. Writ lies to compel officer removed to surrender his office. State v. Meeker, 19 Nebr., 444. Writ does not lie to compel change in location of railway station until action of railway commission. State v. Chicago, St. P. M. & O. R. Co., 19 Nebr., 476. Writ can only enforce a duty enjoined by law. Thatcher v. Adams County, 19 Nebr., 485. Writ lies to restrain colleciion of taxes unauthorized. Thatcher v. Adams County, 19 Nebr., 485. Writ lies to compel payment of school district orders. State v. Bloom, 19 Nebr., 562, 565. The foregoing citations are not all the eases of 'mandamus in volumes 1-19, but they are believed to cover all important questions peculiar to mandamus therein reported. The following important decision rendered by the attorney general’s office can nob fail to be of interest: “The legal voters of .a rural school district may be compelled by mandamus to vote revenue for school purposes, and a parent or guardian or the county superintendent may apply for such wait.” Rex>ort for biennium ending' November 30, 1902, pp. 247-251, Frank N. Front, Attorney General.— Reporter.

Concurrence Opinion

Sedgwick, J.

I concur in the conclusion that this court has jurisdiction of the action but do not express any opinion on the question of res judicata.