1911 Encyclopædia Britannica/Mandamus, Writ of

MANDAMUS, WRIT OF, in English law, a high prerogative writ issuing from the High Court of Justice (named from the first word in the Latin form of the writ) containing a command in the name of the king, directed to inferior courts, corporations, or individuals, ordering them to do a specific act within the duty of their office, or which they are bound by statute to do, and performance whereof the applicant for the writ has a specific legal right to enforce. Direct orders from the sovereign to subjects commanding the performance of particular acts were common in early times, and to this class of orders mandamus originally belonged. It became customary for the court of king’s bench, in cases where a legal duty was established but no sufficient means existed for enforcing it, to order performance by this writ. Under the Judicature Acts and the Crown Office Rules, 1906 (r. 49), the powers of the court of king’s bench as to the grant of the prerogative writ of mandamus are exercisable only in the king’s bench division of the High Court.

The writ though of right is not of course: i.e. the applicant cannot have it merely for the asking, but must satisfy the High Court that circumstances exist calling for its issue. The procedure regulating the grant and enforcement of the writ is determined by the Crown Office Rules, 1906 (rr. 49-68, 125).

Mandamus has always been regarded as an exceptional remedy to supplement the deficiencies of the common law, or defects of justice. Where another legal or equitable remedy exists, equally appropriate, convenient, speedy, beneficial and effectual, the writ will as a rule be refused. It is occasionally granted even when a remedy by indictment is available: but is not issued unless the existence of the duty and refusal to perform it are clearly established, nor where performance in fact has become impossible. The writ is used to compel inferior courts to hear and determine according to law cases within their jurisdiction, e.g. where a county court or justices in petty or quarter sessions refuse to assume a jurisdiction which they possess to deal with a matter brought before them. It has in recent years been employed to compel municipal bodies to discharge their duties as to providing proper sewerage for their districts and to compel anti-vaccinationist guardians of the poor to appoint officers for the execution of the Vaccination Acts; and it is also employed to compel the promoters of railway and similar undertakings to discharge duties imposed upon them towards the public by their special acts, e.g. with reference to highways, &c., affected by their railways or other undertakings. The courts do not prescribe the specific manner in which the duty is to be discharged, but do not stay their hands until substantial compliance is established.

Besides the prerogative common-law writ there are a number of orders, made by the High Court under statutory authority, and described as or as being in the nature of mandamus, e.g. mandamus to proceed to the election of a corporate officer of a municipal corporation (Municipal Corporations Act 1882, s. 225); orders in the nature of mandamus to justices to hear and determine a matter within their jurisdiction, or to state and sign a case under the enactments relating to special cases.

At common law mandamus lies only for the performance of acts of a public or official character. The enforcement of merely private obligations, such as those arising from contracts, is not within its scope. By s. 68 of the Common Law Procedure Act 1854, the plaintiff in any action other than replevin and ejectment was empowered to claim a writ of mandamus to compel the defendant to fulfil any duty in the fulfilment of which the plaintiff was personally interested. By s. 25 (8) of the Judicature Act 1873 a mandamus may be granted by an interlocutory order of the High Court in all cases in which it shall appear to the court just or convenient that such an order should be made. This enactment does not deal with the prerogative mandamus but empowers the king’s bench and the chancery divisions to grant an interlocutory mandamus in any pending cause or matter by an order other than the final judgment and even by an order made after the judgment. S. 68 of the act of 1854 has been repealed and replaced by Order LIII. of the Rules of the Supreme Court. The remedy thus created is an attempt to engraft upon the old common law remedy by damages a right in the nature of specific performance of the duty in question. It is not limited to cases in which the prerogative writ would be granted; but mandamus is not granted when the result desired can be obtained by some remedy equally convenient, beneficial and effective, or a particular and different remedy is provided by statute. An action for mandamus does not lie against judicial officers such as justices. The mandamus issued in the action is no longer a writ of mandamus, but a judgment or order having effect equivalent to the writ formerly used.

Mandatory Injunction.—The High Court has a jurisdiction derived from the court of chancery to grant injunctions at the suit of the attorney-general or of private persons. Ordinarily these injunctions are in the form of prohibition or restraint and not of command. But occasionally mandatory injunctions are granted in the form of a direct command by the court.

Specific Performance.—The jurisdiction of the High Court, derived from the court of chancery, to decree specific performance of contracts has some resemblance to mandamus in the domains of public or quasi-public law.

Ireland.—The law of Ireland as to mandamus is derived from that of England, and differs therefrom only in minor details.

British Possessions.—In a British possession the power to issue the prerogative writ is usually vested in the Supreme Court by its charter or by local legislation.

United States.—The writ has passed into the law of the United States. “There is in the federal judiciary an employment of the writ substantially as the old prerogative writ in the king’s bench practice, also as a mode of exercising appellate jurisdiction, also as a proceeding ancillary to a judgment previously rendered, in exercise of original jurisdiction, as when a circuit court having rendered a judgment against a county issues a mandamus requiring its officers to levy a tax to provide for the payment of the judgment.” And in the various states mandamus is used under varying regulations, mandate being in some cases substituted as the name of the proceeding.