And the mention of these writs reminds me of the mistake made by a gentleman of my acquaintance whose knowledge of law is large, but whose command of the Latin language is small. He was rapidly searching for the names of the ancient varieties of mandamus and fell upon the term mandato, panes de. Columbus could hardly have manifested more joy at sight of land than our friend, when he announced that he had chanced upon a hitherto unmentioned form of the writ. You can imagine his disgust when he was told that the words that had so charmed him were simply the designation of the loaves of bread customarily given to the poor on Maundy Thursday. (Chaslular-Glaston, MS. folio 29.) when mandamus was essentially a parliamentary writ, it became an original process, issuable by the Court of King's Bench, in the name of the sovereign, in all cases where there was a legal right and no other specific remedy.* The best definition, both from its comprehensiveness and clearness, that we can find of the mandamus of this middle period, is given by Blackstone. He says: "A writ of mandamus“ is a command issuing in the king's name from the Court of King's Bench, and directed to any person, corporation or inferior court of judicature within the king's domains, requiring them to do some particular thing therein specified, which appertained to their office and duty, and which the Court of King's Bench had previously determined, or, at least, supPassing now to the middle English period of our posed to be consonant to right and justice." It is subject we find that in the reign of Edward II., as since, mandamus was used in England as the sup-dial nature (1 Bl. Rep. 352), and might be issued in a high prerogative writ of a most extensively remepletory police power of the kingdom. (Cowper, 378, 2 B. and C. 198; Burrows, 1265-1268.) It was certainly granted in civil cases (a motion) in this reign and in that of Edward III., and for early instances in which the writ was used to restore municipal officers to their corporate rights, we have many instances in the books. (Rex v. City of Cambridge, 1 Lev., p. 1-119; Rex v. Mayor of Oxford, 2 Salk. p. 428. The antiquity of this writ in civil cases is refered to in a leading case by Lord Mansfield. (Rex v. Askew, 2 Burr. 186.) He speaks of a manuscript book of reports which he has seen, and which contained a report of Dr. Bonhams' case in which a mandamus was directed in the time of Edward III. to the University of Oxford, commanding the university to restore a man that was "banitus." "This case of Dr. Bonhams," says Lord Mansfield, "shows well both the nature and extent of mandamus at that early period. In the 14th and 15th centuries the writ was in the form of a letter missive of the sovereign. During the latter half of the 15th century the writ was directed to issue on a petition to parliament for redress. It thus became in form a parliamentary writ, and being then chiefly used to enforce restitution to public officers, was commonly known as the "writ of restitution." The reports, however, offered few instances of its application' before the latter part of the 17th century," at which time it was used systematically, not only as we have seen to correct official inaction, but for the purpose of setting in motion inferior tribunals and officers.3 After the years Except as herein stated. 2 See line of cases in King's Bench Cases, MDCCXLI. 3 Baggs' case, 11 Coke, 93; Middleton's case, Dyer, 332; Queen v. Heathcote, 10 Mod. 57. some cases (but see Tapping, Mand. p. 18) where the injured party had also another, but more tedious method of redress, as in case of admission or restitution to an office; but it issues in all cases where the party had a right to have anything done, and had no other specific means of compelling the performance. The writ was grounded on a suggestion of right in the petitioner and a denial of justice, whereupon, to more fully satisfy the court that there is probable ground for its interposition, a rule is made, (14 Wall. 166, and cases cited) (except where prob able ground is manifest) directing the party complained of to show cause why a mandamus should not issue; and if he shows no sufficient cause the writ itself is issued, at first in the alternative, to do thus or show some reason to the contrary, to which an answer is made at a certain day, and if the respondent shows an insufficient reason, there issues a premptory mandamus to do the thing absolutely, to which perfect obedience is required. So firmly grounded had the association of prerogative and mandamus become during that period designated by us as Middle English, and so firmly did the English judiciary adhere to the doctrine that mandamus was not a writ of right, that Lord Mansfield expressed the opinion at both the English bench and bar, when he said in a leading case (Rex v. Askew, Burr. p. 2186): "There is no doubt that where a party who has a right, has no other specific legal remedy, the court will assist him by issuing this prerogative writ; but the court ought to be satisfied that they have ground to grant a mandamus, it is not a writ that is to issue as of course, or to be granted merely for the asking." (Rex. v. Chester [Bishop] 1 T. R. 396; Rex. v. Nottingham Waterworks Co., 6 A. & E. 355). At first these writs were issued by the King's Bench only in cases in which the king or the public were interested, and for these reasons it was called prerogative and was regarded as not issued as of strict right, but only at the will of the sovereign, and as decided in many leading cases mandamus was strictly and essentially a prerogative writ. (Rex v. Bristol Dock Co., 12 East. 429; Rex v. Baker, 3 Burr. 1267; 1 Blk. Rep. 352, 552; Cowper, 378). Let us now consider the writ during the modern period of its existence. For a score of years, prior to 17th Victoria, signs of change were noticeable in the opinions which were held concerning mandamus and kindred writs. This change was to manifest itself, to the consternation and astonishment of those wedded to the old ideas. In 1854 (17, 18 Vic.) the Common Law procedure act was passed, and the practice and procedure in administering the relief afforded by mandamus were entirely revolutionized. The act extended the jurisdiction to all the superior courts of the kingdom, which were authorized to grant the relief in connection with any civil action, save ejectment and replevin, the pleadings, practice and procedure therein being assimilated, as closely as possible, to those prescribed in ordinary civil actions for the recovery of damages. The effect of this sweeping enactment has been to place mandamus proceedings upon much the same footing as ordinary personal actions, and, although the statute expressly preserved the jurisdiction of the King's Bench as formerly exercised, the necessary result of the statute has been the almost total annihilation of the prerogative features of the remedy, reducing it to a personal action for the protection of individual rights. We have now seen royal prerogative diminish to a minor position, when viewed in connection with the remedy we are discussing; but the process of mandamus, the legitimate offspring of prerogative, has endured and grown in force and strength. It has seemed to possess the faculty of adapting itself to every shifting of the current of sentiment and with every flood of liberal ideas it has received the alluvium of enlightenment, as with every ebb it has by erosion, lost obsolete or inapt features. Wherein did the early English writ differ from that of the middle period, and in what does the modern writ differ from its predecessors? The first part of the question requires but little explanation, as the difference is patent, even to a casual observer. The arbitrary features of the writ disappeared, the writ was no longer a law, and a command to obey the self-contained law, but it was based upon law existing de hors the writ. It had become a commandment based upon well-defined anterior enactments. In other features a change had come, the writ had lost the feature which it had thus far shared with its French cousin, the lettre de cachet. Its issuance had passed from the hand of the monarch, through the hands of parliament into the Court of King's Bench, and it was no more to go forth, save with the consent of those learned in the law of the land. The arbitrary features of the writ disappeared with the Edwards, but for many centuries the prerogative aspects were to remain in full force and effect; even to-day, in these United States, wherein the question of prerogative would not seem to have place, and to a greater extent in England where it still retains much force, if not legally, then sentimentally, we have not been able to free ourselves of this prerogative fetter, despite the many decisions of our highest court, asserting its absolute nonexistence. The consideration of the distinction between the two later forms of the remedy, that of Blackstone's, for example, and that of to-day, affords us a most interesting study. The difference is not so much that of form, for after the first centuries of its growth, it assumed, in the 17th, a definite shape, and occupied a recognized sphere which it held til nearly a century after that peerless epitome of English law, which to-day forms the basis of American jurisprudence, was produced by the greatest of legal commentators Sir William Blackstone, Knight. Indeed, had it not been for 17 and 18 Victoria, the writ in England to-day, would differ in but little from that used in the time of Edward II. As the difference is not one of form, neither is it one of process, for the modern practice closely follows the ancient rule. Nor is the demarcation, that caused by the effect of time upon the reasons for the issuance or withholding of the writ, for then, as now, the chief requisites to warrant the issuance of a writ of man damus were: First. Petitioner must show a legal right to have the action done which is sought by the writ. Second. It must appear that the act which is to be enforced by the mandate, is that which it is the plain duty of the respondent to perform, without discretion on his part, either to do or refuse. Third. That the writ will be availing as a remedy and that the petitioner has no other plain, speedy and adequate remedy. The difference that engages our attention is more radical, it is one not of practice, form, issuance, withholding or effect, for the last is the same, prac tically, now as in earliest times. It is a difference in the very essence of the process, a difference that has permeated and affected every fibre of its organization and completely changed the nature of the remedy. I can explain the change by a homely illustration. An eccentric man dying, devised to his next of kin, who were rather remote relations, and cared but little for the old man, or that to which he was attached, his old home. This was a large, substantial mansion, situated on a bustling business street of a large city. The dead man had borne a sincere affection for the old house and could not endure to think of the time when its demolition would come, and the thought that those who were to receive his property might, and probably would, tear down the house, greatly annoyed him. He sent for his lawyer, told him his trouble and a condition was added to the will setting forth that should the old house be removed or demolished within a period, that the property should go over to a charity named. Sure enough, the old man was hardly cold when the thoughts of his heirs turned to the erection of a large and modern business block on the site of the old house, but speculation was met by fact. There was the condition. "What legal ingenuity can devise, legal ingenuity can circumvent" is the saying; and in this case it was to prove a true one. I believe that had Adam been a lawyer the garden of Eden would still be the manor of his descendants. The heirs went to work; first the old house was raised and two new stories built beneath it, this did not violate the condition, at least in the letter, and yet substantially improved the premises and the new and the old were practically one house. Next year the walls of the old house were strengthened and the front rebuilt, and this did not violate the condition-the building with its old and new parts was one structure. The snow fell again and in the spring the builders reappeared. This time the roof of the old house was the point of repair, and when the carpenters were done, a new roof crowned the structure, and while practically a new and modern building stood in the place of the old man's home, the condition of his will had not been so violated as to cause the heirs to lose their property. (This case occurred in Boston, 1887-1890.) As with the old house so it has been with mandamus, a new writ stands in place of the old and yet the new is the old adapted to modern needs. To more quickly arrive at the solution of the question, to more understandingly grasp the difference with which we are concerned, let us review the status of mandamus to-day in this country. It has been recognized and incorporated into our constitutions generally, along with other established common law remedies, with no material change from its earliest object and employment; though it has ceased to be looked upon as flowing from a sovereign source, except in the sense that the process usually runs in the name of the State and the people of the State are theoretically supposed to be present and watching and directing all judicial proceedings. It is used at the present day, as at first, to give relief where ordinary legal procedure, by reason of its defects, gives none, and the same methods characterize its employment, and the same means are resorted to, to make it effective; but the important differences that have arisen, exist in the primary source, whence it issues, and the extent to which it reaches. When we read Lord Mansfield's definition of mandamus, we can see at once the more important differentiation. He says in a leading case (Rex v. Baker, 1267 Burr.): "This is a prerogative writ, to the aid of which the subject is entitled, upon a proper case, previously shown to the satisfaction of the court. The original nature of the writ and the end for which it is framed direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice and defect of police. Thus it might be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Within the last century it has been liberally interposed for the benefit of the subject and the advancement of justice. The value of the matter or the degree of its importance to the public police is not scrupulously weighed. If there is a right and no other specific remedy the writ should not be denied." It is strictly a civil remedy. State v. Williams, 69 Ala. 311; McBane v. People, 50 Ill. 503; State v. Bailey, 7 Iowa, 390; Judd v. Drever, 1 Kan. 455; State v. Gracey, 11 Nev. 223; Chamberlain v. Warburton, 1 Utah, 267; State v. Jennings, 56 Wis. 113. It is no longer regarded as a criminal procedure, Comm. v. Dennison, 24 How. (U. S.) 66; Brown v. Crego, 29 Iowa, 321; Williams v. Commrs., 90 Pa. St. 498, and cases supra. 3 Fremont v. Crippen, 10 Cal. 212; Ethridge v. Hall, 7 Port. 47; In re Trustees of Williamsburg, 1 Barb. 34; King v. Bank of England, Doug. 524; Queen v. R. R. Co. Ad. & E. 531. country as in England in some States it retains writ, issuing not of strict right, but at the will of some of the characteristic features of the original the sovereign, and as an attribute of sovereignty. writ, it is in most States regarded as an ordinary As confined to the English system, and to the action between parties, and though the well estab-jurisdiction of the Court of King's Bench, those lished rules of common law governing the jurisdic-statements in the reports, ascribing to the writ pretion are generally adhered to where such rules are rogative features, are more nearly correct, but even applicable. (Kimbull v. Union Water Co., 44 Cal. then there seems to have been, since 1853, a marked 173.) The jurisdiction of the courts in administer- tendency to divest the writ of even its sentimental ing this remedy as well as the manner of its employ-prerogative features. and to treat it as a writ of ment have been in many cases greatly modified by right. statutory enactments. Mandamus is still regarded as an extraordinary remedy (Commonwealth v. Canal Commissioner, 2 P. & W. [2d ed.] 517; Com-ereign will is not exercised upon occasion, to meet mission v. Alleghany, 16 S. & R. 17; Commonwealth v. Commissioner of Philadelphia, 1 Whart. 1.); but in the sense only that it is resorted to only upon extraordinary occasions and when the usual and ordinary modes and forms of procedure are powerless to afford redress to the aggrieved party, and its use is necessary to prevent a failure of justice. Much confusion has resulted from the efforts of some of the courts to attach prerogative features to the remedy as used in the United States. This confusion has arisen in the main from a failure to properly discriminate between the English and American systems of government. Under the English Constitution the king was theoretically the fountain and source of justice, and where the law did not afford a remedy by the regular forms of proceeding, the prerogative powers of the sovereign were invoked in aid of the ordinary judicial powers of the courts, and the mandamus was issued in the king's name, and by the Court of King's Bench only, as having the general supervisory power over all inferior jurisdictions and officers. Originally, too, the king sat in his own court in person and aided in the administration of justice, and although he has long since ceased to sit there in person, yet by a fiction of law, he is still so far presumed to be present, so as to enable the court to exercise its prerogative powers in the name and by the authority of the sovereign, and the fact that mandamus was formerly allowed only in cases affecting the sovereign, or the interests of the public at large, lent additional weight to the prerogative theory of the writ. These suggestions are believed to sufficiently explain the statements so frequently made in the reports that the writ of mandamus is a prerogative People v. Hatch, 33 Ill. 134; People v. Board of Met. Pol. 26 N. Y. (12 Smith) 316; Chamberlain v. Warburton, 1 Utah, 267; School Inspectors v. People, 20 Ill. 525; Moody v. Fleming, 4 Ga. 115. 2 Kendall v. U. S., 12 Pet. 524; Comm. v. Dennison, 24 How. (U. S.) 66; Gilman v. Bassett, 33 Conn. 298; Asberry v. Beavers, 6 Tex. 157; Fisher v. City of Charleston, 17 W. Va. 595. In this country the form of government is essentially different from that of England, and the sov emergencies. The people crystalize their will into laws for the equal government of all, in advance of cases which arise for their application, and the writ of mandamus does not arise directly from a sovereign, either in fact or theory, except in the sense that by pre-existing law all process runs in the name of the State. (80 Iowa, 229.) Indeed it is extremely difficult to perceive how, in any case, mandamus can be deemed, in any sense, a writ prerogative; even though the power of granting it were confined to a particular court in each State, or to a particular Federal court, whose general functions should correspond to those of the King's Bench, and represent the sovereignty in the same way in which that court does in England, for even though you have this done, where and what is your sovereignty? Certainly not in England do we find it existing. The false premise is fatal to the conclusion sought, and though this theory is sanctioned by a recent writer upon the subject, I believe it untenable. We have reviewed the history of the writ and noted its growth and the change in its nature. We have watched the divestment of its prerogative and extraordinary qualities and observed its passage to the various common law courts of England, and we will sum up our work with a definition of mandamus, which shall, as nearly as may be, answer the question with which we began this paper. What is the modern remedy bearing this name? Mandamus is an ordinary, original, personal, 3 4 3 Commonwealth v. Dennison, 24 How. 66; Kendall v. U. S., 12 Pet. 527; Gilman v. Barrett, 33 Conn. 298; Asberry v. Beavers, 6 Tex. 457; S. C. School Inspectors of Peoria v. The People, 20 Ill. 530; People v. Hatch, 33 Ill. 134. See also, 33 III. 140; City of Ottawa v. People, 48 Ill. 240; People v. Bd. of Met. Pol. 26 N. Y. 316. 4 McBane v. People, 50 Ill. 503; State v. Bailey, 7 Iowa, 390; Judd v. Drever, 1 Kan. 455; Kendall v. U. S. 12 Pet. (U. S) 524; Commrs. v. Dennison, 24 How. (U. S.) 66; Fisher v. Charleston, 17 W. Va. 595; Kentucky v. Dennison, 24 How. (U. S.) 66; People v. Lewis, 28 How. (N. Y.) Pr. 159; Asbury civil action, issuing as of right from a competent jurisdiction, with the office to 3 court of compel SAVINGS BANK TRUST DEPOSITS. has for some time occasioned considerable trouble to the judiciary of this and other States, and owing to the usually puzzling questions of fact involved and principles of law not generally understood, the correct solution of the problems presented has been attended with much difficulty. the performance of a plain, personal duty, which THE subject of deposits in trust in savings banks the petitioner has shown a clear, legal right to have done by the person to whom the writ is sent, and which that person has no discretion, on his part, to do or to refuse to do, though he has neglected or refused to perform it having the power to do it." GUY CARLETON LEE. JOHNS HOPKINS UNIVERSITY, BALTIMORE, Md. v. Beavers, 6 Tex. 457; Gilman v. Bassett, 33 Conn. 298; State v. Commrs. 11 Kan. 66; Haymore v. Yadkin Co., 85 N. C. 268; S. C. School Insp. of Peoria v. People, 20 Ill. 525. 1 Commrs. v. Dennison, 24 How. (U. S.) 66; Brown v. Crego, 29 Iowa, 321; People v. Board of Supervisors, 27 Cal. 656; State v. Williams, 69 Ala. 322; McBane v. People, 50 Ill. 50; State v. Bailey, 7 Iowa, 390; Judd v. Driver, 1 Kan. 455; State v. Jennings, 56 Wis. 113; Williamsport v. Commr. 90 Pa. St. 498; See Walker, J., in McBane v. People, 50 Ill. 503. 2 Fisher v. Charleston, 17 W. Va. 595; Kendall v. U. S., 12 Pet. (U. S.) 524. 3 See State v. Pierce Co., 37 N. W. Rep. 231; Jack v. Moore, 66 Ala. 184; Gayo v. Gilmore, 76 Ga. 75; U. S. v. Shurz, 102 U. S. 378; 3 Black's Comm. 110; 4 Bacon's Abr. 495; Page v. Clopton, 2 Va. Law J. 560. As regards the necessity of a previous demand and refusal to perform the act which it is sought to coerce by mandamus, the authorities are not altogether reconcilable. The better, however, seems to be that stated. See Oroville & Va. R. Co. v. Supervisors of Plumas, 37 Cal. 354; State v. County Judge of Marshall, 7 Iowa, 186; State v. Bailey, Id. 390; State v. County Judge of Marshall, supra, particularly on tacit refusal or implied refusal. Chance v. Temple, 1 Iowa, 179; County Court of Macoupin v. People, 58 Ill. 191. 5 Bayard v. U. S., 126 (U. S.) 246; Shine v. Ky. R. R. Co., 85 Ky. 177; State v. Trustees of Salem Church, 114 Ind. 389; Tower v. Commr. of Tallapoosa, 17 Ala. 527; Louis v. Whittle, 77 W. Va. 451; Union Church v. Sanders, 1 Houst. (Del.) 100. s. c. 63 Am. Dec. 187. 6 It is a fundamental principle of the law of mandamus, that the remedy will never be granted in cases where, if issued, it would prove unavailing. In such case the court will refuse to interfere. Williams v. County Commrs., 35 Me. 345; Woodbury v. County Commrs., 40 Me. 307; People v. Chic. & Alt. R. Co., 55 Ill. 95; People v. Supervisors, 15 Barb. 607; Colonial Life Ins. Co. v. Supervisors, 24 Barb. 166; People v. Tremain, 17 How. Pr. 142; State v. Trustees of Warren, 1 and 2 Ohio (2d ed.) 300; Memorial Church v. Trustees, 6 Ohio, 445; State v. Perrine, 5 Vroom. (N. S.) 254; Queen v. Norwich Savings Bank, 9 Ad. & E. 729. Preliminary to a consideration of the subject, it is important to examine the motives which ordinarily impel a person to deposit his money in the trust form. The statute limits the amount which an 1 individual may deposit to his own credit "exclusive of deposits arising from judicial sales or trust funds or interest," to the sum of $3,000, and it is illegal for the bank to pay interest on deposits in excess of that sum.? Notwithstanding the opinion of the State attorney-general that the "trust funds" referred to by the statute means fund in the custody of a judicial officer as distinguished from personal trusts, the banks uniformly construe the statute as excepting deposits in the form of personal trusts. Furthermore the bank may regulate the amount of interest allowed on various sums," which regulation usually provides for a maximum rate of interest on sums not exceeding $1,000, and a less rate on any balance over that sum, and not exceeding the statutory limitation. When, therefore, a depositor's individual account has reached or the other of these limits, it is a common practice for such persons, acting often, it is feared, on the advice or with the connivance of the bank or its agents, to deposit the excess in one or accounts in form in trust, the beneficiary named being usually a member of the depositor's family. These accounts are opened solely for the purpose of getting the largest amounts of interest possible, and without the slightest intention on the part of the depositor to part with the ownership or control of his property.5 one more |