assessments, as well as from sales under the general tax laws, is favor ably regarded by the courts; and statutes giving or extending this right are liberally construed. And it is held by the Supreme Court of Pennsylvania that the right to redeem is, until the sale is fully consummated by deeds, wholly within legislative control, and that the redemption time may be enlarged after the sale is made and before the purchaser has obtained his deed.1 As to mode of collecting assessments for local improvements, and when considered a personal charge as well as a lien on the property benefited, see Bennett v. Buffalo, 17 N. Y. 383; New York v. Colgate, 12 N. Y. 140 (assessment for widening street); Salter v. Reed, 15 Pa. St. 260; Philadelphia v. Cook, 30 Pa. St. 56, 63; Guerin v. Reese, 33 Cal. 292 ; Des Moines v. Casady, 21 Iowa, 570; Gaffney v. Gough, 36 Cal. 104; Britton v. Philadelphia, 32 Pa. St. 387; Mix v. Ross, 57 Ill. 121 (1870); Jones v. Schulmeyer (date when lien given by statute attaches), 39 Ind. 119 (1872); supra, sec. 815, note. 1 Gault's Appeal, 34 Pa. St. 95 (1859). See Adams v. Beale, 19 Iowa, 61. In Wisconsin a provision in a city charter that no costs shall be recovered against the city in any action brought to set aside a tax sale or to prevent the col lection of the tax was held unconstitutional. Durkee v. Janesville, 28 Wis. 464. And so a statute requiring payment of the redemption money and interest, before being allowed to question the validity of a taxdeed, was held unconstitutional by the Supreme Court of Illinois. Reed v. Tyler, 56 Ill. 288. Under the charter of New York City declaring assessments for cer tain local improvements to be a lien upon the property benefited, such lien does not exist until the amount thereof is ascer tained, and the city cannot create such a lien upon property owned by itself when the local improvement was constructed and the expense thereof paid by it. Dowdney v. New York, 54 N. Y. 186 (1873). Lien when given held to be of equal rank with lien for State taxes. Justice v. Logansport, 101 Ind. 326. CHAPTER XX. MANDAMUS. § 823 (661). Subject outlined. This important subject, so far as it falls within the scope of the present work, will be considered in the following order: 826. 831. 1. Definition and General Nature of the Remedy 2. When the Writ will be granted or refused secs. 824 secs. 827 3. Mandatory and Discretionary Powers as respects the Remedy by Mandamus - secs. 832-836. 4. Mandamus as respects Municipal Elections and Officers sec. 838 et seq.; To take Office - sec. 841; To admit to Office secs. 842-846; To restore to Office sec. 847. - 5. To obtain Possession and Inspection of Corporate Books and Papers sec. 848. 6. To enforce Duties towards Creditors - secs. 849-863. 7. Application for the Writ-Affidavits Relator-Rulesecs. 864-868. 875. 8. Form, Direction, and Service of the Writ-secs. secs. 869 9. The Return and Subsequent Proceedings-secs. 876, 877. 10. Peremptory Writ- secs. 878-880. 11. Attachment secs. 881-883. 12. Judgment-sec. 884. Definition and General Nature of the Remedy. § 824 (662). In England. - At common law, the superintending jurisdiction of the King's Bench over all public bodies, including municipal corporations, and over public officers, including the officers of such corporations, is largely exercised by means of the writ of mandamus. It is considered in England to be a prerogative writ, and is in style an order in the king's name, commanding the 1 It was called a prerogative writ because the power to issue it was vested in the judges of the King's Bench, the court in which the sovereign is supposed to be personally present. Com. Digest, Mandamus A. corporation, officer, or person to whom it is directed to perform a specific duty. Mandamus and informations in the nature of quo warranto are, in England, the principal remedies by which municipal corporations are compelled to observe the requirements of their charters and of the law; and whenever the law has not provided some other adequate or specific remedy to compel or to secure the performance of their public duties, such performance will, where this is the appropriate process, be enforced by means of the writ of mandamus in favor of the public or of any person having a right to insist upon such performance, and who would be injured by their non-performance. It is, in substance, a civil remedy for the subject, though the name of the king be nominally used.2 § 825 (663). In this Country. In this country the functions of the writ are fully as extensive and of the same nature as in England, although we have here given more scope to other remedies which often effect practically the same ends. It is to the public advantage that municipal corporations and their officers shall be made to perform the duties enjoined upon them by law, and the necessity which has been felt for affording easy remedies against them has led the legislatures and the courts in modern times to improve and liberalize the proceedings by mandamus, by relieving them of much of their former artificial and technical character. Accordingly, "it is," says a high legal authority, "well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now considered as a prerogative writ. The right to the writ, and the power to issue it, have ceased to depend on any prerogative power, and it is now regarded as an ordinary process in 1 Commonwealth v. Pittsburgh, 34 Pa. St. 496, 510 (1859); Attorney-General v. Boston, 123 Mass. 460 (1877), noted infra, sec. 920, note. 3 Black. Com. 110; Rex v. Barker, 3 Burr. 1267; 1 W. Black. 352; Rex v. Land Tax Comm'rs, 1 D. & E. T. R. 148; People v. Collins, 19 Wend. 65; Selwyn's Nisi Prius, chap. xxviii. 1077-1100. "A mandamus is certainly a prerogative writ, flowing from the king himself, sitting in this court, superintending the police and preserving the peace of this country." Rex v. Barker, supra, per Lord Mansfield. 2 Stephens's Nisi Prius, 2291. This author's treatment of the subject of mandamus as the remedy is applied in England, is highly satisfactory. See, post, chaps. xxii., xxiii. “Man damus," says Mr. Justice Thompson, in commencing his valuable opinion in the Commonwealth v. Allegheny Co. Comm'rs, 37 Pa. St. 277, 279 (1860), "is a high prerogative and remedial writ, the appropriate functions of which are the enforcement of duties to the public, by officers and others who either neglect or refuse to perform them. It follows, therefore, that those to whom it may be appropriately directed owe some duty to the public, and are under obligation to perform it, and for the enforcement of which there is no other specific legal remedy." Post, sec. 906, note. 4 Rex v. Barker, 3 Burr. 1265; Sikes v. Ransom, 6 Johns. 279; Turner, In re, 5 Ohio, 542. cases to which it is applicable. It is a writ to which every one is entitled, where it is the appropriate process for asserting the right he claims." 1 § 826 (664). Mandamus and Injunction. These are, in their nature, different remedies, and in general are not concurrent or interchangeable. A writ of mandamus may be likened to an injunction at law or a mandatory writ in a legal proceeding, commanding in the name of the sovereign authority the performance of a specific affirmative act. A writ of injunction belongs solely to a court of equity, and usually issues to prevent the doing of some specific act. Where mandamus is the appropriate remedy, it cannot be substituted by a bill in equity praying an injunction, as, for example, an injunction to compel a municipality to levy a tax to pay a judgment against it. Where, for example, bonds have been voted by a 1 Per Taney, C. J., in Kentucky v. Dennison, Gov., 24 How. (U. S.) 66, 97, 98 (1860); Kendall v. United States, 12 Pet. 615; Kendall v. Stokes, 3 How. 100; Davies v. Corbin, 112 U. S. 36; Rosenbaum v. Bauer, 120 U. S. 461, 462; post, sec. 884; Fleming, In re, 4 Hill (N. Y.), 581; State v. Bailey, 7 Iowa, 390; Bryan v. Cattell, 15 Iowa, 338, per Wright, J.; Commonwealth v. Allegheny Co. Comm'rs, 32 Pa. St. 218 (1858); State v. Kirkley, 29 Md. 85 (1868); Wilkinson v. Providence Bank, 3 R. I. 22. 2 Walkley v. Muscatine, 6 Wall. 481 (1867); Heine v. Levee Comm'rs, 19 Wall. 655 (1873); Rees v. Watertown, 19 Wall. 107 (1873). Thus mandamus, and not a bill in equity, is the proper remedy against the officers of a corporation to compel them to register a conveyance of shares. Cooper v. Dismal Swamp Canal Co., 2 Murphey (N. C.), 195. So to compel, where it is a mere ministerial duty, the Commissioner of Patents to prepare a patent for execution. Butter worth v. United States, 112 U. S. 50. So to compel a municipality to perform statute duties. Attorney-General v. Boston, 123 Mass. 460 (1877), noted infra, sec. 920, note. Remedy in equity. Post, chap. xxiii. secs. 906-924. An injunction, and not mandamus, was considered to be the proper remedy to prevent the erecting, by the trustees, of a school-house on a site selected in violation of law; but mandaVOL. II.-23 mus was regarded as the proper remedy to compel the trustees to carry out the decision of the superior school officer, on appeal, in relation to establishing a schoolhouse for the district. State v. Custer, 11 Ind. 210 (1858). In certain cases mandamus and injunction are somewhat correlative remedies. Board of Liquidation v. McComb, 92 U. S. 531 (1875). But their respective functions are distinct. Butterworth v. United States, 112 U. S. 50; Smith v. Bourbon County, 127 U. S. 105 (1887); Glossop v. Heston & I. Local Board, L. R. 12 Ch. Div. 102 (1879). Post, sec. 1046, note. 8 If the act has already been done the writ will not lie, for if allowed it would be nugatory. Spiritual Atheneum Soc. of W. R. v. Randolph, 58 Vt. 192, where the application was for allotment of money to a religious society made after the amount allowed by law had been distributed. Post, sec. 850, note. 4 Walkley v. Muscatine, 6 Wall. 481 (1867); infra, secs. 849, 855; Heine v. Levee Comm'rs, 19 Wall. 655; Rees v. Watertown, Ib. 197 (1873). See State v. Kirkley, 20 Md. 85, 110 (1868), in which it was held that mandamus was a proper remedy by a city to compel the delivery to it, by a building committee who were acting without legal authority, of the plans and specifications of the city hall, and thus to restrain them in the discharge of the duties of their supposed office. county to pay for a stock subscription to a railway company, the legal obligation is to issue the bonds pursuant to the vote. If the county officials wrongfully refuse to issue the bonds this will not make the county liable in damages. The only remedy is a proceeding at law by mandamus to compel the proper officers of the county to issue the bonds. The railroad company or, if it be insolvent, a judgment creditor of the company, cannot maintain a bill in equity to compel the issue and delivery of the bonds to be applied on the judgment. Such creditor must first acquire the right of the railroad company, and then proceed by mandamus against the county or its officers to compel the issue of the bonds.1 When granted or refused. § 827. When it lies. The office of the writ of mandamus is to compel a corporation, an inferior court, or a public officer to perform some particular corporate or official act or duty incumbent upon it or him, which is imperative in its nature, and to the performance of which the relator has a clear legal right. The remedy is extraordinary, as distinguished from the usual remedy of the citizen or suitor, and if the right is doubtful or the duty discretionary, or if there be any plain, ordinary, and adequate legal remedy, this writ will not, in general, be allowed.2 As to mandamus and injunction: Prescott v. Duquesne Bor. (duty in respect to wharf), 48 Pa. St. 118; Bedford Bor. Sch. Dir. v. Anderson, 45 Pa. St. 388; State v. Graves, 19 Md. 351; Neuse River Nav. Co. v. Newberne Comm'rs, 6 Jones L. (N. C.) 204; State v. Custer, 11 Ind. 210; People v. Salomon, 46 Ill. 415; Same v. Same, 51 Ill. 39; Parker, Re, 120 U. S. 746; Brown, Re, 116 U. S. 401; Craig v. Leitensdorfer, 123 U. S. 209; infra, secs. 829, 855; post, chap. xxii., as to legal and equitable remedies. 1 Smith v. Bourbon County, 127 U. S. 105 (1887). Infra, sec. 831, note. 2 People v. Crotty, 93 Ill. 180; Harris, In re, 52 Ala. 87; Zanone v. Mound City, 103 Ill. 552 (to issue a license); People v. Sch. Trustees, 86 Ill. 613; St. Clair Co. v. Keller, 85 Ill. 396; People v. Lieb, 85 Ill. 484; People v. Highway Comm'rs, 88 Ill. 142; Bradstreet, In re, 7 Pet. 634; Manny, In re, 14 How. 24; Cutting, In re, 94 U. S. 14; Page v. Clopton, 30 Gratt. (Va.) 415; Life & F. Ins. Co. of N. Y. v. Wilson, 8 Pet. 291; Same v. Adams, 9 Pet. 571; Hoyt, In re, 13 Pet. 279; Commonwealth v. Fairfax Co. Ct. Jus., 2 Va. Cas. 9; Dawson v. Frederick Co. Ct. Jus., 2 H. & M. (Va.) 132; Brown v. Crippin, 4 H. & M. (Va.) 173; King William Co. Ct. Jus. v. Munday, 2 Leigh (Va.), 168; Harrison v. Norfolk Co. Ct. Jus., Ib. 764; Manns v. Givens, 7 Leigh, 689; Morris, In re, 11 Gratt. (Va.) 292 ; Yeager, In re, Ib. 665; Randolph Co. Ct. Jus. v. Stalnaker, 13 Gratt. (Va.) 523; Cowan v. Fulton, 23 Gratt. (Va.) 579; Kent v. Dickinson, 25 Gratt. (Va.) 817; United States v. Lawrence, 3 Dallas, 42; Crane, In re, 5 Pet. 190; Roberts, In re, 6 Pet. 216; Smalley v. Yates, 36 Kan. 519; Aspen v. Aspen Town & L. Co., 10 Col. 191; State v. Omaha, 14 Neb. 265; State v. Nelson, 21 Neb. 572; State v. Hill, 32 Minn. 275; State v. Newman, 91 Mo. 445 (writ to compel the issue of a certificate of election as mayor, refused to one who was ineligible to hold the office). In an act directing a contract for municipal supplies to be awarded to the lowest responsible bidder, the word ": |