State ex rel. Burg v. Milwaukee Medical College , 128 Wis. 7 ( 1906 )

The following opinion was filed February 23, 1906:

KeewiN, J.

It appears from the record that the. ground of petitioner’s action is that he contracted with appellant Mil-tvandcee Medical College for a course in the dental department of its college and completed the prescribed course, paid the required fees, and performed all the conditions of the contract on his part to be performed, and under the terms of his contract with the appellant and the performance thereof he became entitled to a diploma, and that the appellant refused to ■deliver the same to petitioner. The ease made is clearly one of breach of contract, and the question arises whether mandamus will lie to compel a private corporation to perform its contract. This question was not discussed by counsel in their briefs or upon oral argument, so we are without the valuable aid which investigation and discussion by counsel would afford. Mandamus is a remedy only to be applied in extraordinary cases where there is no other adequate remedy. Where the applicant has an adequate remedy by action the writ will not be awarded. State ex rel. Buchanan v. Kellogg, 95 Wis. 672, 679, 70 N. W. 300; Clarice v. Hill, 132 Mich. 434, 93 N. W. 1044; King v. London A. Co. 1 Dowl. & R. 510; Wood, Mandamus, 1; Shortt, Mandamus, 233. It is granted usually for public purposes to compel the performance of a public duty imposed by law. It has been said that “it is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to the party aggrieved, and where without its aid there would be a failure of justice.” High, Extr. Leg. Rem. (3d ed.) § .5. The writ of mandamus lies to compel the performance of a public duty prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdiction, and to compel in proper cases the performance of specific duties imposed by law. State ex rel. Wis. T. Co. v. Janesville St. R. Co. 87 Wis. 72, 79, 57 N. W. 970; State ex rel. Buchanan v. Kellogg, supra; State ex rel. Hawley v. Polk Co. 88 Wis. 355, 60 N. W. 266; State ex rel. Cuppel v. Milwaukee C. of C. 47 Wis. 670, 3 N. W. 760; State ex rel. Jacquith v. Wis. C. R. Co. 123 Wis. 551, 102 N. W. 16; State ex rel. Bergenthal v. Bergenthal, 72 Wis. 314, 39 N. W. 566; State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 574, 88 N. W. 587; Kennedy v. Board of Ed. 82 Cal. 483, 22 Pac. 1042; People ex rel. Union Ins. Co. v. Nash, 47 Hun, 542; Shortt, Mandamus, 228; Wood, Mandamus, 5; High, Extr. Leg. Rem. (3d ed.) § 320/.

It seems, however, to be well settled that duties imposed upon corporations, not by virtue of express law or by the conditions of their charters, but arising out of contract relations, will not be enforced by mandamus. The authorities in England and this. country appear to be quite uniform to this effect. King and Wheeler, Oases temp. Hardw. 9 9; Ex parte Robins, 7 Dowl. Prac. Cas. 566; King v. Mayor, 2 Term R. 259; King v. Bank of England, 2 B. & Ald. 620; Queen v. Orton, 14 Q. B. 139; Benson v. Paull, 6 El. & Bl. 273; High, Extr. Leg. Rem. (3d ed.) §§ 25, 321; People ex rel. Union Ins. Co. v. Nash, supra; State v. Rep. R. B. Co. 20 Kan. 404; People ex rel. Nat. C. Co. v. Dulaney, 96 Ill. 503; Tobey v. Hakes, 54 Conn. 274, 7 Atl. 551; State ex rel. Poyser v. Trustees, 114 Ind. 389, 16 N. E. 808; State ex rel. Mt. P. C. Co. v. P., N. & N. Y. R. Co. 43 N. J. Law, 505; State ex rel. Rosenfeld v. Einstein, 46 N. J. Law, 479; State ex rel. New Orleans v. N. O. & N. E. R. Co. 42 La. Ann. 138, 7 South. 226; Shortt, Mandamus, 231; Merrill, Mandamus, § 16; State ex rel. Board v. Zanesville & M. T. Co. 16 Ohio St. 308; State ex rel. Bohannon v. County Court, 39 Mo. 375; Storer Post No. 1 v. Page, 70 N. H. 280, 47 Atl. 264; People ex rel. Coppers v. Trustees, 21 Hun, 184, 195. In High, Extr. Leg. Rem. (3d ed.) § 25, in speaking of mom-damus it is said:

“It is not, therefore, an appropriate remedy for the enforcement of contract rights of a private or personal nature; and obligations which rest wholly upon contract, and which involve no question of trust or of official duty, cannot be enforced by mandamus. A contrary doctrine would necessarily have the effect of substituting the writ of mandamus in place of a decree for specific performance, and the courts have, therefore, steadily refused to extend the jurisdiction into the domain of contract rights.”

Erom the foregoing cases and many others which might be cited it seems clear that mandamus will not lie to compel a private corporation to perform its contract with an individual. In State ex rel. Poyser v. Trustees, 114 Ind. 389, 396, 16 N. E. 811, the court said:

“Duties imposed on a corporation, not by virtue of express law, nor by the conditions of its charter, but arising wholly out of contract relations, will not be enforced by mandamus, ¡since the use of such writ is limited to the enforcement of obligations imposed by law. Where the duties of a corporation, or of its trustees, grow^out of or result from matters of contract, writs of mandate will not lie against the corporation or its trustees, either in their corporate capacity or as individuals, to compel the performance of the contract, but the party aggrieved will be left to the ordinary remedies, either at law or in equity.”

In the case before us the liability of the appellant college rested solely on contract between it and the petitioner. If the petitioner was entitled to his diploma and an action for damages was not adequate he could compel specific performance. This was an adequate remedy. Clarke v. Hill, 132 Mich. 434, 93 N. W. 1044; State ex rel. Mt. P. C. Co. v. Paterson, N. & N. Y. P. Co., supra; King v. London A. Co. 1 Dowl. & R. 510; Tobey v. Hakes, supra; People ex rel. Coppers v. Trustees, supra. If mandamus will issue to enforce the performance of the contract between petitioner and appellant, no reason is perceived why it will not lie in any case by a person to enforce a contract with a private corporation. It is very clear that the writ of mandamus, either in England or in this country, was never designed for such purpose. It follows from the undisputed facts that the petitioner was not entitled to a writ of mandamus, and therefore the judgment must be reversed and the writ quashed.

By the Court. — The judgment below is reversed and the writ quashed.

Upon a motion for a rehearing counsel for respondent contended, inter alia, that the decision in this case is inconsistent with the decisions in Oconto City W. S. Co. v. Oconto, 105 Wis. 76, 89, 90, and State ex rel. Grady v. C., M. & N. R. Co. 79 Wis. 259, 262, 263. The existence of an equitable remedy is not a sufficient answer to an application for mandamus. There must be an adequate specific legal remedy. Hardcastle v. M. & D. R. Co. 32 Md. 32, 35; People ex rel. La Orange v. State Treasurer, 24 Mich. 468, 477, 478; Comm. ex rel. Thomas v. Allegheny Co. Comm’rs, 32 Pa. St. 218, 223; People ex rel. Moulton v. Mayor, 10 Wend. 393; State ex rel. Richards v. Sneed, 105 Tenn. 711, 58 S. W. 1070; Slemmons v. Thompson, 23 Oreg. 215, 31 Pac. 514, 517; Durham v. Monumental S. M. Co. 9 Oreg. 41. The relator’s right did not rest wholly in contract. The diploma would entitle him (under sec. 1410A-, Stats. 1898) to a license to practice dentistry. The fact that the corporation is a private corporation, so called, has never been considered any defense to the writ of mandamus if such private corporation is authorized to issue a certificate which confers a certain status or franchise upon its recipient. People ex rel. Bartlett v. Medical Society, 32 N. Y. 187; Board of Bd. v. State, 100 Wis. 455; State ex rel. Graham v. Chamber of Commerce, 20 Wis. 63; State ex rel. Cuppel v. Chamber of Commerce, 47 Wis. 670; Jackson v. State, 57 Neb. 183, 42 L. R. A. 792; People ex rel. Cecil v. Bellevue Hosp. Med. College, 14 N. Y. Supp. 490, affirmed 128 N. Y. 621, 28 N. E. 253. A right resting in contract cannot, as a general thing, he enforced by mandamusj but where the contract gave the relator the right to come within the class entitled to enforce the performance of a legal duty, and that legal duty determines the status or is of the nature of a privilege, it can be no objection to enforcing such duty that the relator brought himself within the class of persons-entitled to enforce it by making a contract. Whalen v. La Crosse, 16 Wis. 271; State ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549; State ex rel. White v. Winn, 19 Wis. 304; State ex rel. Sloan v. Warner, 55 Wis. 271; People ex rel. Adams v. Goss & P. Mfg. Co. 99 Ill. 355; State ex rel. Koons v. First Nat. Bank, 89 Ind. 302; Hair v. Burnell, 106 Fed. 280; State ex rel. Jennings v. Supreme Lodge (N. J.) 50 Atl. 581; American W. W. Co. v. State, 46 Neb. 194, 30 L. R. A. 447; Richmond R. & F. Co. v. Brown, 97 Va. 26, 32 S. E. 775. In any event the case should not be thrown out of this court on the court’s own motion upon a mere question of practice not involving the jurisdiction of the court, after the case was submitted on its merits and without objection of this kind. Buffington v. Bardon, 80 Wis. 635, 640; Creager v. Wright School Dist. 62 Mich. 101, 28 N. W. 794; State ex rel. Abernethy v. Moss, 13 Wash. 42, 42 Pac. 622; Jessup v. Carey, 61 Ind. 584; State ex rel. Ordtuay v. Smith, 11 Wis. 65; State ex rel. Buchanan v. Kellogg, 95 Wis. 672; Fidler v. Trustees, 6 Conn. 532, 544.

The motion was denied April 17, 1906.