Jackson v. Cochran ( 1910 )

Beck, J.

(After stating the foregoing facts.)

While the writ of mandamus will issue to compel a due performance of official duties, it will not be granted to compel the performance of such a series of acts as that, in enforcing the observance of the writ, the court issuing the same would have to undertake to oversee and control the general course of official conduct of the party to whom the writ is directed. In the case of Patterson v. Taylor, 98 Ga. 646 (25 S. E. 771), it was said: “Mandamus will not lie to compel a public officer to do an act not clearly commanded by law. ‘It is only practicable by mandamus to compel performance of specific acts, where the duty to discharge them is clear and well defined, and when no element of discretion is involved in the performance/ Where the officer has a discretion in the matter, the court may by this means compel him to exercise his discretion, hut can not direct in what manner he shall exercise it. 14 Am. & Eng. Enc. of Law, art. Mandamus, 104; Merrill on Mandamus, § 100 et seq.” And in the case of Diamond Match Co. v. Powers, 51 Mich. 147 (16 N. W. 315), the court said: “When the case presents a single occasion, and calls for an act which is presently determinate, it is entirely practicable to direct the act by mandamus. But where the case contemplates something continuous, yet variable in its conditions and aptitudes, the remedy by that process seems an unfit one. It is the office of mandamus to direct the will, and obedience is to be enforced by process for contempt. It is, therefore, necessary to point out the very thing to be done; and a command to act according to circumstances would be futile.” See also 19 A. & E. E. Law, 724, and eases there cited.

Under the well-established doctrines set forth above, relative to the scope of the writ of mandamus, it is clearly not a remedy appropriate to the wrongs of which the applicant in the present case makes complaint. In the first place, he is not asking that the. magistrate against whom he seeks the writ be compelled to perform some specific act or fulfil some specific -official duty; but it is manifest that if he were entitled to the writ on his petition, he would obtain a writ regulating and controlling the magistrate in his general course of official conduct. Not only would a long series of official acts upon the part of the magistrate be ordered, but the acts sought to be compelled are of such a character that the magistrate has a very large discretion relatively to the demand of the defendant in error in regard to them. For, even if no exigency has arisen which would authorize the appointment of special constables under section 4085 or 4086 of the Civil Code, certainly as between the applicant for the writ of mandamus and the other regularly elected constable for the district the magistrate would have a large discretion in apportioning the writs and processes to be served. These and other considerations show clearly that the applicant was not entitled to the issuance of the writ of mandamus; and the general demurrer to the application should have been sustained. Judgment reversed.

All the Justices concur.