Oct. 11, 1862, $575. Oct. 20, 1864, 17. Undertaking of plaintiff. Oct. 24, 1882, § 2. p. 53. To whom directed. Return. Stay of proceedings. judicial in their nature: S. V. W. W. cumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of the same length of time that bars an appeal from a final judgment: Keys v. Marin Co., 42 Cal. 253; Kimple v. Superior Ct., 66 Id. 136; Reynolds v. Superior Ct., 64 Id. 372. See Shay v. Superior Ct., 57 Id. 541, where party was precluded from raising question of jurisdiction to try appeal from justices' court when he had come in and made no objection to the regularity of the proceedings. In the case of review of proceedings of inferior tribunals, a reasonable time will be allowed to bring up their proceedings: Thompson v. Multnomah Co., 2 Or. 34. § 586. [576.] Before allowing the writ, the court or judge shall require the plaintiff to give an undertaking to its approval, with one or more sureties, in the sum of one hundred dollars, to the effect that he will pay all costs and disbursements that may be adjudged to the defendant on the review. Such court or judge may allow such undertaking to be given in a sum not less than fifty dollars, when it is probable that such sum will be sufficient. § 587. [577.] The writ shall be directed to the court, officer, or tribunal whose decision or determination is sought to be reviewed, or to the clerk or other person having the custody of its records or proceedings, requiring it or him to return said writ to the circuit court, and not elsewhere, within a time therein specified, with a certified copy of the record or proceedings in question. annexed thereto, that the same may be reviewed by such circuit court, and requiring the defendant to desist from further proceedings in the matter to be reviewed. Writ should be directed to the court whose proceedings are to be reviewed, and not to the judge of the court: Frazer v. Freelon, 53 Cal. 644. The party or parties whose acts are to be reviewed must be before the court: Lamb v. Schottler, 54 Id. 319. Return should be made by the clerk of the court, and not by the judge: C. P. R. R. v. Placer Co., 34 Cal. 352; Onesti v. Freelon, 61 Id. 625; Frazer v. Freelon, 53 Id. 644. It should show the jurisdiction of the lower court: Johns v. Marion Co., 4 Or. 46. A transcript of the record and proceedings in an action constitute the return to the writ, and no other document will be examined in passing on the jurisdictional question: Same cases. Where it is not the duty of a clerk to take down or preserve evidence, it cannot be certified in the return. Only such documents as remain of record or on file in the clerk's office need be returned: C. P. R. R. v. Placer Co., 32 Cal. 582. If necessary, it seems, the court may compel the inferior tribunal to certify, not only what is technically denominated the record, but such facts or evidence of them as may be necessary to determine the questions as to the juris diction of the inferior tribunal; the Oct. 24, 1882, § 2. If the record is deficient, it should Laws of 1882, pro ceedings. When writ § 588. [578.] The words in the writ requiring a stay Oct. 24, 1882, § 3. of proceedings may be inserted or omitted in the discre- p. 59. tion of the court or judge issuing the same, and the pro- stay of ceedings shall be stayed or not, accordingly. The writ shall be made returnable at the next term of the circuit returnable. court, or in vacation, and if the latter, the same may be tried and judgment given therein, by the judge thereof, in like manner and with like effect as in term time. Laws of 1876, Writ, when and how is sued and served. § 589. [579.] Upon the filing of the order allowing Oct. 21, 1876, § 1. the writ, and the petition and undertaking of the plain- p. 66. tiff, the clerk shall issue the writ, according to the direction of the order. The writ shall be served by delivering the original, according to the direction thereof, and may be served by any officer or person authorized to serve a summons; and a certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least ten days before the return of the original writ. Application. The petition ought to show a want of jurisdiction; if existence of jurisdiction can be made consistent with the allegations of the petition the writ will be denied: Cunningham v. Superior Ct., 60 Cal. 576. Notice of the application should be given to the adverse party, or he will $580. Incomplete § 590. [580.] If the return to the writ be incomplete, oct. 11, 1862, the court may order a further return to be made. In no case shall the writ be allowed unless the application return. therefor be made within six months from the date of the Limitations. decision or determination complained of. $581. § 591. [581.] Upon the review, the court shall have oct. 11, 1852, power to affirm, modify, reverse, or annul the decision or determination reviewed, and if necessary, to award resti- court. tution to the plaintiff, or by mandate direct the inferior Appeal. Power of Oct. 11, 1862, § 581. Power of court. Appeal. 5 Or. 411. 17 Or. 320. court, officer, or tribunal, to proceed in the matter reviewed according to its decision. From the judgment of the circuit court on review, an appeal may be taken to the supreme court in like manner and with like effect as from a judgment of such circuit court in an action. Judgment. The supreme court modified a judgment of a county court by ordering it to be reduced to a named sum, within the jurisdiction of the county court: Will v. Sinkwitz, 39 Cal. 573. If decision is adverse to the plaintiff in the writ, it seems the regular form of the judgment is to affirm the judgment reviewed: Astellv. Phil ippi, 55 Id. 265. The reviewing court cannot make the writ serve the purpose of a writ of mandate, and direct the inferior tribunal "to award the county printing" to the plaintiff in the writ: Townsend v. Copeland, 56 Id. 612. Appeals. If there is a petition, it is no part of the judgment roll: Reynolds v. San Joaquin County, 47 Id. 604. Upon an appeal from a judgment on certiorari, the record may consist of the judgment appealed from, the writ, and the return thereto: Garretson v. Supervisors of Santa Barbara, 61 Id. 54. § 599. $ 600. If defendant fail to show cause, peremptory mandamus to issue. Oct. 11, 1862, 582. Writ of mandamus. Oct. 11, 1862, $583. To whom may issue. 9 Or. 44. 11 Or. 321. 11 Or. 434. 14 Or. 398. 16 Or. 223. § 592. [582.] The writ of mandamus is known in this code as prescribed and regulated in this title, and not otherwise. § 593. [583.] It may be issued to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station. But though the writ may require such court, corporation, board, officer, or person to exercise its or his judgment, $ 583. or proceed to the discharge of any of its or his functions, Oct. 11, 18c2, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law. Not to control Mandamus generally. - Mandamus is a writ issued to compel the performance of a duty to prevent a failure of justice where no other clear and adequate remedy exists: Arrington v. Van Houten, 44 Ala. 284; Stite v. Guerrero, 12 Nev. 105. Where an adequate remedy at law exists, the writ will be denied: Durham v. Monumental G. & S. M. Co., 9 Or. 41; Bell v. Lappius, 3 Id. 55. The writ simply commands the performance of duty; it does not control discretion: Draper v. Noteware, 7 Cal. 278; Magee v. Calaveras Co., 10 Id. 376; Harpending v. Haight, 39 Id. 208; Berryman v. Perkins, 55 Id. 483; Dunphy v. Belden, 57 Id. 427. The office of the writ is to compel the performance of a purely ministerial duty. "A ministerial duty is one in respect to which nothing is left to discretion": Sullivan v. Shanklin, 63 Id. 247, 251. Mandamus does not lie to compel an inferior tribunal to act in a particular manner where it is invested with discretionary power: Flagley v. Hubbard, 22 Id. 35; People v. Weston, 28 Id. 649; Commonwealth v. Common Pleas Phil. Co., 3 Binn. 273; Ex parte Ostrander, 1 Denio, 679; People v. Judges Oneida Com. P., 18 Wend. 92; People v. Judges of Dutchess C. P., 20 Id. 659; People v. Judges of Wayne Co., 1 Mich. 369; 3 Dall. 42; 9 Pet. 602; 1 Serg. & R. 187; 6 Pa. St. 470; note to Fish v. Weatherwax, 2 Johns. Cas. 217. It is the proper remedy to compel judges to hold their courts, and county officers to keep their offices, at a county seat: Calaveras Co. v. Brockway, 30 Cal. 336. It is necessary that the record should manifest the right claimed, as well as the unlawful exclusion of the petitioner from the enjoyment of that right: Ward v. Flood, 48 Id. 47. What officers will be controlled by mandamus. - No of ficer, however high, is above the law, and when duties are imposed upon him in regard to which he has no discretion, and in the execution of which individuals have a direct pecuniary interest, and there is no other plain, speedy, and adequate remedy, he can be required to perform those duties by compulsory process of mandamus. This is the settled doctrine, not only of the federal courts, but of the highest tribunal of nearly every state in the Union where the question has been raised: Bell v. Lappius, 3 Or. 55; McCauley v. Brooks, 16 Cal. 40, citing Marbury v. Madison, 1 Cranch, 137; Kendall v. U. S., 12 Pet. 524; State v. Governor of Ohio, 5 Ohio, 534; Page v. Hardin, 8 B. Mon. 649; Smith v. Controller, 18 Wend. 659; People v. Edmonds, 15 Barb. 529; People v. Flagg, 16 Id. 503; People v. Edmonds, 19 Id. 468; People v. Stout, 23 Id. 339. It may be directed to the governor: Middleton v. Low, 30 Cal. 601; Harpending v. Haight, 39 Id. 212; Berryman v. Perkins, 55 Id. 483; the state controller: Fowler v. Peirce, 2 Id. 165; Nougues v. Douglass, 7 Id. 65; the surveyor-general: Laugenour v. Shanklin, 57 Id. 70; the judge of a lower court: Russell v. Elliott, 2 Id. 245; People v. De la Guerra, 43 Id. 225; a county judge: Ex parte Spring V. W. W., 17 Id. 132; Lake Merced Co. v. Cowles, 31 Id. 215; a justice of the peace, to compel him to issue execution: Hamilton v. Tutt, 1 West Coast Rep. 858; a judge of the lower court, to compel him to transfer the hearing of a motion for change of venue on the ground of his disqualification: Livermore v. Brundage, 12 Pac. C. L. J. 337; the county clerk, though for a refusal to act, for which he might be criminally prosecuted, or for which an action on the case would lie: Fremont v. Crippen, 10 Cal. 215; S. C., 70 Am. Dec. 711; People v. Loucks, 28 Cal. 69; but see, contra, Goodwin v. Glazer, 10 Id. 333; Fulton v. Hanna, 40 Id. 281. It may issue to supervisors: Emeric v. Gilman, 10 Id. 410; San Francisco Gas Co. v. San Francisco, 11 Id. 47; Frank v. S. F., 21 Id. 668; Price v. Sacramento, 6 Id. 256; People v. Supervisors, 12 Id. 300; People v. Supervisors, 28 Id. 432; Napa Valley R. R. v. Napa Co., 30 Id. 435; Alden v. Alameda Co., 43 Id. 270; Robinson v. Butte Co., 43 Id. 355; People v. Supervisors, 50 Id. 561; S. V. W. W. v. San Francisco, 61 Id. 18; Johnson v. Supervisors, 65 Id. 567; judicial discretion. Oct. 11, 1862, D 583. Meyer v. Brown, 65 Cal. 583; compeiling authorities of the municipality to levy a tax; to a county auditor: Sweeny v. Maynard, 52 Id. 468; S. F. Gas Co. v. Brickwedel, 62 Id. 641; though an action on his bond would lie: Babcock v. Goodrich, 47 Id. 488; People v. Ashbury, 44 Id. 616; S. C., 46 Îd. 523; to a county treasurer: Day v. Callow, 39 Id. 596; Bank of Cal. v. Shaber, 55 Id. 322; Meyer v. Brown, 12 Pac. C. L. J. 153; Meyer v. Porter, 1 West Coast Rep. 874; Kennedy v. City of Sacramento, 2 Id. 223; Hausmeister v. Porter, 3 Id. 594; to an assessor: People v. Shearer, 30 Cal. 645; Hyatt v. Allen, 54 Id. 353; a superintendent of streets: Himmelmann v. Cofran, 36 Id. 411; a tax collector: Perry v. Washburn, 20 Id. 349; election commissioner: Gibbs v. Bartlett, 63 Id. 117; and performance of duty cannot be excused on the ground of want of funds: Id. As no appeal lies from an order made before final judgment refusing to transfer a cause from a state district court to the United States circuit court (Hopper v. Kalkman, 17 Cal. 517), an order made in action pending in a state district court staying all proceedings therein until the further direction of the court is not an appealable order. The remedy is by mandamus: Rhodes v. Craig, 21 Id. 419. This decision was affirmed and followed in Avery v. Superior Ct., 57 Id. 247, where, after judgment in ejectment, the lower court made an order staying proceedings until the determination of an action in the United States circuit court to annul plaintiff's patent for the land. So also in Dunphy v. Belden, 57 Id. 427, the writ issued to compel the superior court to proceed with a cause notwithstanding an appeal from that court in another action between the same parties. It is the proper remedy to compel a court to restore the name of an attorney which had been stricken from its rolls: People v. Turner, 1 Id. 144; S. C., 52 Am. Dec. 295. It does not lie to compel a sheriff to execute a writ, especially where it does not appear that there is no adequate remedy against the sheriff: Habershaw v. Sears, 11 Or. 431. As between conflicting claimants to stock of a corporation, mandamus does not lie by one to compel the other to transfer it: Durham v. Monumental S. M. Co., 9 Id. 41. It does not lie to determine the right of a corporation to exercise a franchise: W. & M. Wagon Road v. Supervisors, 64 Cal. 69; nor will it lie where there is an appeal: Fremont v. Merced Mining Co., 9 Id. 18; Peralta v. Adams, 2 Id. 595; Ludlum v. Fourth Dist. Ct., 9 Id. 13; Early v. Mannix, 15 Id. 149; People v. Sexton, 24 Id. 84; Clark v. Minnis, 50 Id. 509; unless the appeal is an inadequate remedy: Merced M. Co. v. Fremont, 7 Id. 130. Where a clerk refuses to issue execution, the remedy is by motion in the court, or by action against him, not by mandamus: Fulton v. Hanna, 49 Id. 278. So it will not lie to compel a receiver to do certain acts; the remedy is ample in the court which appointed him: People v. McLane, 62 Id. 616. Where the judge below required a statement of the evidence on the trial in a chancery case, to be submitted, and the attorney did not object, but failed to furnish it, and the court, on motion for judgment on the pleadings and verdict, refused to proceed until such statement was furnished, it was held that mandamus would not lie: Purcell v. McKune, 14 Cal. 230. Nor where a judge acts judicially can he be compelled by mandamus to reverse his decision and render a different one: Chase v. Blackstone Canal Co., 10 Pick. 244; Doughty v. Judges, 20 Wend. 658; People v. Prat!, 28 Cal. 168; Cariaga v. Dryden, 29 Id. 309; Lewis v. Barclay, 35 Id. 213; People v. Sexton, 37 Id. 534; Beguhl v. Swân, 39 Id. 411; Ex parte Caje, 45 Id. 249. The supreme court has no jurisdiction to grant a writ of mandate to compel the judge of a state district court to proceed with the trial of an action in which an order has been made transferring the cause to the United States circuit court: Francisco v. M. I. Co., 36 Id. 283. A mandamus will not lie against a sheriff to compel him to make a deed of land to a purchaser at an execution sale, who refuses to pay the purchase-money for the reason that he is the oldest judgment execution creditor and entitled to the money; especially where there is an unsettled contest as to the question of lien: Williams v. Smith, 6 Id. 91; nor to compel the sheriff to execute a certificate and deed on a sale under an invalid assessment; Bosworth v. Webster, 64 Id. 1; nor to compel him to execute a tax deed containing recitals contradicted by the return of the |