Counsel, to show the authority of this Court to issue writs of this character, cites Sec. 4, Art. VI, of the Constitution of this State; Sec. 7, Act of May 19, 1853; Prac. Act, 466, 467, 472, 473, 474, 476; Sec. 65, Act of 15th May, 1854.
It has been held, that a mandamus is not the proper remedy to remove to this Court the records of the District Court, but that a certiorari should be issued in the case decided. (People v. Turner , 1 Cal. 152.)
The Supreme Court of the United States, in the case of Marbrug v. Madison, 1 Cranch, deny the power to issue the writ under the Constitution, although directed by act of Congress. The Constitution excludes original juridiction in all cases except those enumerated, and a mandamus is an original suit. (McIntire v. Wood, 7 Cranch, 504.)
In Kentucky, it is expressly decided that the writ was not necessary to the exercise of appellate jurisdiction, and this Court possesses no other. (Lawless v. Rees, 1 Bibb, 496.)
Upon another head, as to controlling judicial discretions, this Court has passed, in accordance with the general rule established by the authorities. (Fowler v. Price , 2 Cal. 165; People v. Bell , 4 Cal. 177; People v. Olds , 3 Cal. 167.)
It is not the proper remedy, when an inferior Court refuses to enter a judgment for costs. (Peralta v. Adams , 2 Cal. 596.) In Russell v. Elliott , 2 Cal. 246, this Court directed the District Court, by mandamus, to enter a judgment on a referee's report, upon the ground that the defendant, who applied, was without any other remedy.
Mandamus is a prerogative writ, and not a writ of right. (Tapping 58, orig. p. 5; Ex parte Fleming, 4 Hill, 583.)
Mandamus not granted where there is an adequate remedy. (Ex parte Lynch, 2 Hill, 45.) Nor where writ of error, appeal, or certiorari will lie. (People v. Collins, 19 Wend. 60.) A proper case for a writ of error, and not of mandamus. (People v. Judges of Oneida, 21 Wend. 22.) Nor to avoid the effects of a final judgment. (State v. Bowan , 6 Ala. 511.) Nor even though there be no other remedy, and a party has to seek redress by application to the Legislature for relief. (Fowle v. State , 3 Ala. 207.)
Affidavit on which the alternate mandamus was granted, not to be used upon the return, except to show the nature of the application. (7 Wend. 474.)
When Courts commit manifest error, or are guilty of an abuse of power, an action of damages will lie--they being answerable only. (Criminaliter, People v. Collins, 19 Wend. 56.)
Where a discretion is vested in an inferior tribunal, a mandamus will not lie. It is proper, only where some legal right has been refused or violated, and there is no other appropriate legal remedy. (People v. Superior Court, N. Y., 5 Wend. 122, 125.)
There can be, in the nature of things, no rule by which discretion can be precisely measured. (People v. Collins, 19 Wend. 60; People v. Judges of Oneida, 18 Wend. 75; Ex parte Benson, 7 Cow. 362; Ex parte Nelson, 1 Cow. 422; 1 Denio, 679; Estrandier's Case; People v. Judges of Duchess, 20 Wend. 659; Ex parte Ostrander , 1 Denio, 682; Elkins v. Atheam , 2 Denio, 192; Redding v. Commonwealth, 1 Jones, 200; Ex parte Hoyt, 13 Pet. 291; 10 Tex. 263; 6 Eng. Law and Eq. 373; 12 Barb. 117; 15 Ala. 740.)
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.
OPINION
BURNETT, Judge
This was an application for a mandamus to compel the District Court for the Fourth Judicial District, to enter a decree, directing the receiver appointed in the case of Adams v. Woods & Haskell, to pay the amount of the claim of petitioner, as allowed by the report of the referee. The material facts of the case are fully stated in our opinion, delivered at the present term, in the matter of the intervention of T. A. Lynch and others.
From the facts stated, it will be seen that the truth of the allegations contained in the bill of intervention had to be determined by the judgment of the Court below; and that, for this reason, the case was remanded for further proceedings. Had this Court directed the Court below to enter a specified judgment, the case would have presented a different aspect. Upon whatever ground the Court below bases its decision refusing the relief prayed for by the bill of intervention, it is only error, and the remedy is by appeal. Had that Court refused to confirm the report of the referee, the only remedy would have been by appeal. The judgment of this Court at the July Term, 1857, was not that the intervenors were then entitled to the relief demanded, but only that they were so entitled upon proof of their allegations. The District Court had, therefore, to exercise its discretion in granting or withholding the relief asked by the intervenors. The case made does not justify the remedy sought by mandamus, conceding that such a remedy is proper in a case where this Court directs the Court below to enter a specified judgment, and that Court refuses to do so. But whether mandamus would be the proper remedy in this latter case, we do not now decide.
The application must be denied.