State ex rel. Feeney v. District Court of the Seventh Judicial District

ROONEY, Justice,

dissenting.

I join in the dissent of Chief Justice RAPER, and additionally refer to the following general law:

“The discretion which cannot be controlled [by] mandamus is that discretion, and only that discretion, which the law has vested in the officer, to be exercised by him. The discretion must be exercised under the law, and not contrary thereto; it must not be arbitrary, vague, or fanciful but legal, regular, and sound discretion which must be governed by rule and exercised under established principles of law. Mandamus is a proper remedy if in the attempted performance of discretionary acts, the official abuses the discretion so as to amount to a failure to do the act as the law requires, or if by a mistaken view of the law there has been in fact no actual exercise in good faith of the judgment or discretion vested in the officer, or if an official or board acts so arbitrarily or capriciously that the court is justified in holding that no discretion was exercised * * (Emphasis and bracketed word supplied.) 52 Am.Jur.2d § 79, p. 401 (1970).