State ex rel. Brickman v. Wilson , 123 Ala. 259 ( 1898 )

McCLELLAN, C. J.

-This is a petition by the State on the relation of Brickman for mandamus to issue to Massey Wilson, as Clerk of the House of Representatives, and to R. P. McDavid, as Secretary of State. The petition is as follows:

“Your petitioner, I. Brickman, a resident citizen of the county of Montgomery, and State of Alabama, relates and shows unto your Honor:

“That on the first day of January, 1899, relator, who is over the age of twenty-one years, was a tax-payer and voter in the county and State aforesaid, and is now such citizen, tax-payer and voter; that on, to-wit: said first day of January, 1899, your relator was.engaged in, and is now engaged in, the business of a retail dealer in spirituous, vinous or malt liquors in the city and county of Montgomery and State of Alabama, and that on, to-wit, said first day of January, 1899, your relator paid for and took out a license as such retail dealer in spirituous, vinous or malt liquors for the year 1899, in all respects in strict compliance with law; that on, to-wit, the 15th day of April, 1899, an additional license tax of twenty-five dollars was demanded of relator for the carrying on' of his said business as a retail liquor dealer, said demand being made under and by virtue of an alleged act of the General Assembly of Alabama, entitled, ‘An Act to amend the Revenue Laws of the State of Alabama,’ approved on the 23rd day of February, 1899. That relator refused, and still refuses, to pay said additional license tax so demanded, and has thereby rendered himself liable to a criminal prosecution, and to pay a fine on account of his said refusal to pay said additional license tax so demanded, if said act is a valid and legal enactment,

“That relator is informed and advised by counsel, and upon such information believes and charges that said act entitled ‘An Act to amend the Revenue Laws of the State of Alabama,’ approved February 23rd, 1899, is wholly unconstitutional and Aroid, in that, after the passage of the bill, entitled as aforesaid, by the House of Representatives, the same was amended by the Senate in several particulars, Avhich said amendments were not concurred in by the House by a vote of a majority of its members, taken by yeas and nays, and the names of those voting for and against recorded upon the journal of the House, nor was the report of the Committee of Conference, appointed upon the disagreement of the two Houses — AAdiich said report recommended the adoption of said amendments — adopted by a vote of a majority of its members, taken by yeas and nays, and recorded upon the journal of the House, as required by Article IV, section 22, of the Constitution of the State of Alabama. And that the Journal of the House, as kept by the House, signed by its Speaker and Clerk, and deposited in the office of the Secretary of State, shows that said bill failed to become a valid law for this want of conformity to the Constitution in its passage.

“Relator has been informed and advised, and he believes such information to be true, and upon such information and belief, charges that subsequent to the signing of the official journal of the House by its Speaker and Clerk, and subsequent to the adjournment of the General Assembly sine, die, and after said official journal had been deposited in the office of the Secretary of State, that some person, unknown to relator, and without any authority of law, and illegally and wrongfully, wrote upon the margin of volume second, on page 839, of said official Journal of the House, the following Avords and figures, to-wit: ‘Report of Committee of Conference: Mr. Speaker: The undersigned Committee of Conference to consider the difference of the two Houses on H. B. 935, beg leave to report as folloAvs: After considering the matter, they recommend, 1st. The adoption of all the Senate amendments; 2nd. The adoption of the following additional amendments: Sec. Be it further enacted, that the dispensaries in each municipality shall pay fifty per cent of such State and County license as were paid by all the saloons in such municipality during the year 1898, payable quarterly, and in no case, less than amount paid by one saloon. By striking out the words, “or long distance telephones” where they occur in the third and fourth line thereof; by inserting in line 19, after the word “each” and before the word “Company,” the word “telegraph;” by inserting in line 16 of said section, after the word “lines,” the following: “and each long distance telephone company, whose lines within the State do not exceed one hundred miles, shall pay at the rate of fifty cents per mile, and each long distance Telephone company, whose lines within the State exceed one hundred miles, shall pay two hundred and fifty dollars.”

Respectfully submitted,

D. J. Meador,

G. B. Deans,

W. D. Jelks, on part of the Senate.

J. J. Mitchell,

W. W. Brandon,

O. Kyle, on part of the House.

The House concurred in the Conference Report. Yeas, 52, Nays ()• — Yeas, Messrs. Speaker, Andress, Arrington, Bayles, Box, Brandon, Brown, Bruner, Burkhalter, Byars, Cameron, Capps, Cheatham, Cofer, Collier, Cornelius, Dameron, Davidson, • Davis, Flewellen, Forrester, Fuller, Garrett, George, Gibson, Greene, Harris, Haynie, Hood, Huey, Hurt, Kelly, Killen, Kyle, Lavretta, Long, Lyle, Matthews, Mitchell, McQueen, Patterson, Poole, Reynolds, Rogers, Sloan, Spears, Stodghill, Tate, Thigpen, Yaughn, Wallace, White. (52.)’

“Relator is further informed, and upon such information believes, and therefore charges, that said attempted alteration of the journal is of no. legal effect, and utterly void, but that the, fact that it was so placed upon the journal, after the House had adjourned sine die, and the Speaker had signed said journal, and the same had been deposited in the office of the Secretary of State, does not appear from anything shown hy said journal; that the alteration thus appearing, the journal, on its face, is made to speak an untruth, and, if permitted to stand, cuts off the right of relator, in the event he is prosecuted for doing business without a license, from showing that said alleged act never became a law in the mode provided by the Constitution, and that it is, therefore, null and void and of no effect. Relator further shows that if said wrongful and illegal alteration of said journal is allowed to stand, relator will be forced either to pay said illegal license or to pay a fine for his refusal to make such payment, or be imprisoned in default thereof; and relator is, therefore, directly and personally interested in the expunging of said alteration from the pages of said journal, so that it may in fact speak the absolute verity which the law imports to it.

“Relator further shows that the said Massey Wilson, as Clerk of the House of Representatives, is the person who is charged, by law with the preparation of said journal, and with the duty of keeping it accurately and truthfully, and that the said Robert P. McDavid, as Secretary of State, is the person charged by law with the custody and preservation of said journal, as it was delivered to him at the adjournment of the General Assembly, and that- the duty rests upon the said Wilson, as such Clerk, to strike out and expunge from said journal the said illegal and wrongful alteration made thereto, and that the duty rests upon the said McDavid, as Secretary of State, and as custodian of said journal, to permit the said Wilson to strike out and expunge said illegal alteration of said journal.

“That on the 15th day of May, 1899, relator demanded of the said Wilson, as such Clerk, to expunge said illegal and wrongful alteration from said journal; and also demanded of said McDavid, as such Secretary of State, to permit said Wilson to expunge said alteration from said journal, or to expunge the same himself; and both the said Wilson and the said McDavid, respectively, refused, upon said demand, to comply therewith.

“Wherefore, inasmuch as your petitioner is entirely Avithout remedy in the premises, unless it be afforded by the interposition of this honorable court with its writ of mandamus, he prays your Honor to direct and order that an alternative Avrit of mandamus issue to the said Massey ’Wilson, as Clerk of said House of Representatives, of State, commanding him forthwith, to strike out, erase and expunge from the journal of said House of Representatives, the said illegal-and wrongful addition and alteration, AAdiich is hereinbefore set out. And also that an alternative writ of mandamus issue to the said Robert P. McDavid, as Secretary of State for the State of Alabama, commanding him to permit the said Wilson, as such Clerk, to strike out, erase and expunge from said journal, said illegal and wrongful addition and alteration thereof, hereinbefore specifically set out. Or, if the said Wiison is without authority to strike out, erase and expunge the said illegal and wrongful alteration, then that the said McDavid, as the custodian of the said journal, be commanded forthwith to strike out, erase and expunge from the journal of said House of Representatives, the ■ said illegal and wrongful addition and alteration; or else that the said Wilson and said McDavid shoAV cause, on a day to be fixed by your Honor, why they should not do so. And he further prays your Honor that all such other orders may be had in the premises as justice requires.”

Alternative writs having issued in accordance with the prayer of the petition to said McDavid and Wilson, respectively, McDavid appeared and demurred to the petition and to the Avrit issued to him, and also moved to quash the writ on various grounds, and Wilson appeared and demurred to the petition and to the alternative writ issued to him, and moved to quash . said Avrit on various grounds. Some of the assignments of objections to the Amts in the demurrers and motions of both McDavid and Wilson went specially to the sufficiency of the case made against Wilson and against Wilson and McDavid conjunctively and to the propriety of the joinder of Wilson as a. party. The demurrers of both respondents were sustained generally by the court, and thereupon by leave of the court, the petition was amended by striking therefrom all averments and prayer looking to relief against Wilson. The demurrer of McDavid was re-interposed after this amendment of the petition, and was again sustained by the court. And the relator declining to further amend his petition, judgment Avas rendered quashing the alternative writ, and dismissing the petition. Prom that judgment this appeal is prosecuted; and it is here assigned for error (1) that the court sustained the demurrer of Wilson to the petition and alternative Avrit, (2) that the court sustained the demurrer of McDavid to the petition and alternative writ, (3) that the court sustained the demurrer of McDavid to the amended petition and alternative writ, and (4) that the court quashed the alternative writ.

We do not understand counsel for appellant to seriously, or at all, insist that Wilson, the Clerk of the House of Representatives, is under any duty to erase and expunge the extraneous and false entry from the journal. Certainly there is no ground to base such a contention upon. It cannot be doubted, Ave think, and is indeed quite obvious that the clerk’s official connection Avith the original journal — all his duties in respect of it except the duty of copying it for the printer — ceases upon his delivering it to the Secretary of State for safe keeping after it has been signed by the Speaker and himself. Prom and after that time he has no custody of it, no control over it, no right to its possession, except for, the specific purpose above referred to, no poAver to alter it nor to prevent others altering it and is under no duty to keep it safely or to preserve it from mutilation or interpolation. And we deem it unnecessary to say more than*this in justification of the city court’s ruling in respect of the relator’s right to coerce Wilson to expunge and erase from the journal the alleged interpolated matter.

Whether, assuming that the Secretary of State was under the duty sought to be enforced in this proceeding, and the relator had such interest as Avould entitle him to demand the performance of that duty, the petition is defective for joining as respondents both the Clerk and the Secretary, is a question upon which there is conflict of authority, and which need not be decided. If this petition was originally bad on this account, it would, seem that under the liberal spirit of amendment which pervades our statutes and decisions the defect was eliminated by the amendment which was made.

That the relator has such interest in having the integrity of the journal conserved in the manner prayed as authorizes him to exhibit this petition, and will entitle him to the relief he seeks if the duty of ex-purgation is upon the Secretary of State, we do not doubt. His attitude bears a striking similitude to that of relators who seek to coerce by mandamus the issuance to them of licenses to carry on certain occupations and businesses ; and it is Avell settled in this court and generally that Avhere the duty of issuing such licenses is ministerial, mandamus is the appropriate, indeed the only, remedy for its enforcement. This relator!s interest in the premises is to carry on a business for which a license has all along been required upon the license which the law requires and Avhich has been issued to him Avithout being subjected to additional license taxation in consequence of the failure of the Secretary of State to perform an alleged ministerial duty: He asks, that that officer be ordered to perform that duty to the end that he may carry on the business in which he is now engaged; and his interest and right is the same as if the duty upon that officer was to issue him a license, instead of being in effect to authorize him to continue to carry on the business without taking out or paying for an additional license.

Nor — again assuming the Secretary of State is under the alleged duty — has the relator any other remedy than by the writ of mandamies to enforce the performance of the duty. The “other remedy,” the existence of which will oust — or rather prevent the invocation of— jurisdiction by mandamus, must be equally-convenient, beneficial and effective as mandamus.—Raish v. Board of Education, 81 Gal. 542; Overseers v. Overseers, 82 Pa. St. 275. It must be a remedy which will place the relator in statu quo, that is, in the same position he would have been had the duty been performed.—Ethridge v. Hall, 7 Port. 47. Indeed, it must be more than this: it must be a remedy which itself enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its non-performance.—Sessions & Leary v. Boykin, 78 Ala. 328; 2 Spelling Extra. Relief, § 1375; Merrill Mandamus, § 53. Hence it is that while mandamus Avill not lie to enforce a duty Avhich may be coerced by the ordinary civil actions at law — as Avhere the duty is merely to pay money, or to deliver property — it does lie whenever such actions cannot be availed of to the specific performance of the official act Avhich the relator is entitled to have performed — as Avhere a disbursing officer refuses to draAV a Avarrant it is his duty to draw, in Avhich case an action for damages, while it would eventually save the relator harmless, would not coerce the discharge of the specific duty. And so it is here: This relator might defend against an indictment for carrying on his business without paying the additional license tax intended to be imposed by this alleged statute, or, paying it upon compulsion, he might recover back the amount so paid, upon showing the falsification of the journal and, of consequence, the invalidity of the supposed enactment; but neither of these remedies Avould be as convenient, beneficial and effective as a proceeding by mandamus, neither would put him in statu quo, as that expression is employed in our decisions, and neither Avould compel the expurgation of the journal by the Secretary of State. It is plain, Ave think, that those assignments of demurrer which proceed upon the theory that the petition discloses another adequate remedy for the relator are not well taken.

There remains for consideration but one question. It is abstractly the most important in the case. It is also the most difficult. It is whether the Secretary of State Avas under a duty to erase and expunge the alleged unauthorized entries from the house journal. That he was under such duty must be made to clearly appear before the writ of mandamus will lie against him in respect of it. If the duty exists, it is purely statutory: the Secretary of State has no duties to perform except those imposed upon him by the constitution and statutes of tlie State. Mandamus is a conservative, not a creative remedy: it enforces existing duties, but does not impose new duties. By it the officer may be coerced to an act which it was his duty to perform without it, but to no act as to which he was under no duty before its issuance. And the duty must be clear upon the statute. The rule as to the duty and the right to its performance is variously and not always accurately expressed in the adjudged cases. The right must be “certain and positive.”—Beaman v. Board, etc. 42 Miss. 237. The duty must be “clear, and if there be doubt involving the necessity for litigation,” the writ will not lie.— Townes v. Nichols, 73 Me. 515. There must be “a specific legal right and a positive duty.” State ex rel. v. Burnside, 33 S. C. 276. “Duty must be specifically enjoined by law.” —Ferlon v. Carriage Co. 42 Ohio St. 30. Right “ must be clearly established. If right doubtful, writ will be refused.”—M. & O. R. R. Co. v. State, 132 Ill. 559. “Writ will not issue where there is a substantial doubt of respondent’s duty.” State ex rel. v. Buhler, 90 Mo. 560. “Will not be awarded when there is a doubt of the relator’s right to the relief sought.”—State ex rel. v. Wallace, 46 Ill. 415. “Duty must be clearly enjoined by law.”—Draper v. Noteweare, 7 Colo. 276. “It must be clearly commanded by law.”—Pickett v. White, 22 Tex. 559. “When the legal right is doubtful, writ will be denied.” State ex rel. v. Appleby, 25 S. C. 100. Issued when there is a failure to perform “plain official duty,” (Maddox v. Neal, 45 Kan. 121), not “when well founded doubt as to the alleged duty arises.”—State ex rel. v. Johnson, 100 Ill. 537; People v. Hatch, 33 Ill. 9. “Where the validity of a judgment of conviction is doubtful, writ will not issue to enforce it.”—Rex v. Broderif, 5 B. & C. 239; Regina v. Ray, 44 Up. Can. Q. B. 17. The act sought to be compelled, must be “clearly defined and enjoined by law.”—Glasscock v. Com’r, 3 Tex. 51. “The writ does not lie to compel a county judge to perform an act which the law does not specifically enjoin upon him, as a duty resulting from his office.”—State ex rel. v. Napier, 7 Iowa, 425. The duty must be either imposed upon the officer “by some express enactment or necessarily result from the office he holds.”—Pond v. Parrot, 42 Conn. 13. Officer must be “expressly authorized by law” to do the act.—Chisholm v. McGehee, 41 Ala. 192. “A clear specific legal right” to have the act performed must be shown.—3 Brick. Dig. p. 625.

As we have said, some of the foregoing expressions are inaccurate or misleading. A doubt that may arise in the mind of the court in matter of law as to the existence of the duty will not, as some of the cases seem to hold, require or justify the denial of the writ: It is the court’s province and duty to solve all such doubts and declare the duty as it finds it to be after its misgivings as to the intent and meaning of the statute involved or as to any other question of law have been eliminated. Substantial doubt as to whether the facts of the particular case j>resent the conditions upon which the officer is bound to act, may, it would seem, justify or require a refusal of the writ. Of course the doubts of the officer as to his duty .are of no consequence.—State v. Tarpen, (Ohio) 1 N. E. 209. Again, the duty need not be “specifically enjoined” or “expressly prescribed” by law. The true rule in this connection, we apprehend, is that the duty must be imposed in terms by the statute, in cases like the one in hand, or must result therefrom by fair and reasonable construction or interpretation : it must appear from the statute in terms or by fair implication.—Mobile & Ohio Railroad Co. v. Wisdom, 5 Heisk. (Tenn.) 125; Browne v. Duane, 14 N. Y. S. 450; State v. Balche, 89 Mo. 188; Pond v. Parrot, 42 Conn. 13.

And the question recurs: Is the act which relator seeks through this proceeding to have performed by the Secretary of State imposed as an official duty upon him, expressly or by implication by statute? The only statutes bearing upon the matter are embodied in sections 2240 and 1974 of the Code as follows: “§ 2240. Secretary of senate and cleric of house to file papers and furnish, copy of journal. — Within forty days after the adjournment of any session of the general assembly, the secretary of the senate and the clerk of the house of representatives must file and arrange the papers of their respective houses in the office of the secretary of state and copy and deliver to the public printer the journals of their respective houses, with proper indexes thereto, and for such services, when performed, they shall receive, respectively, the sum of four hundred dollars.” “§ 1974. Duties of Seeretarf of State. — It is the duty of the secretary of state — 1. To keep the State seal, the original statutes and public records of the' State, the records and papers belonging to the general assembly, keeping the papers of each house separate.” The duty alleged in the petition arises, if at ,all, under the section last quoted. The duty by it imposed is “to keep the records and papers of the general assembly.” Obviously the duty in question is not specifically enjoined, nor expressly imposed by the terms employed in the enactment, and counsel for appellant do not insist that it is. If said duty exists at all it must be implied from an interpretation of the phrase “to keep the records.” The legislature has not said that it shall be the duty of the ¡-secretary of State to erase unauthorized matter interpolated into these records, but it has said only that he shall keep the records. Is the duty to erase a fair and just implication from the duty to keep? When the legislature constituted the Secretary of State the custodian of a record made by the house of representatives, did it thereby require him to know at all times what that record contained in its original integrity so that he would know at any given time ■whether it had been falsified by the interpolation of spurious and unauthorized entries upon it? When the legislature laid upon him the command to preserve the records of the general assembly, did it intend also to command him to expurgate from those records, or from the paper upon which they are written, any matter or entry he might at any time find tliereon which according to his belief based upon what he should regard as the best information obtainable was not a part of the true record but had been placed upon it without authority of law? Did the law-makers intend that the Secretary of State upon receiving an intimation that the recital in the house journal that the speaker of the house in the presence of the house signed a bill providing a general revenue system for the State, was not in the journal as it was signed by the speaker and clerk and delivered to him for safe keeping, should institute an inquiry on the point, and, upon being assured by A. JB. that this entry had been interpolated, and by O. 1). that it was so written originally, should see fit to believe the statement of A. B. in preference to the statement of C. 1)., and should thereupon expunge the recital and thereby destroy the important statute to which it related when it might well be in point of fact that the statement of O. D. was true and the vital matter erased was part of the true record? Is any such intention to be gotten by implication from the language of the statute? We think not. Let the phrase “to keep” be given its broadest meaning, let it involve the duty to preserve, the duty to prevent spoliation, the duty to prevent interlineation, the duty to prevent entries of any and every kind upon the record as it comes to the Secretary of State, the duty to bring back the record when it is wrongfully taken from his office, the duty to replace leaves that have been torn from it if he can recover them, the duty to blot out ink that may be splotched upon the writing so as to render it illegible, let the duty to keep be extended by implication to all these things, qnd yet it falls short of imposing upon the Secretary of State the duty of conferring on him the right to strike from this record any writing purporting to be pfirt of it that may at any time appear upon it. For if he has the right and it is his duty to erase any one entry upon assurance more or less certain of its falsity he has the same right and is under a like duty to expunge any other entry or any part of what appears to be the record'upon like assurance of its falsity. He is not required by law nor is he supposed in fact to know what the journal of the house contains or does riot contain, or should contain or should not contain. He in fact cannot know. If he is to determine upon any means of assurance that an entry is improperly ripon the journal, and it is his duty upon such determination to erase such entry, it must also be upon him to determine upon any other means of assurance that is satisfactory to him that an entry has been interpolated and he is also under a duty to erase such entry. If by the evidence of his own senses he may determine that an entry appearing on the record is an unauthorized interpolation, and is thereupon in duty bound to erase it, he may in like manner determine upon the evidence of the senses of another conveyed to him by statements he feels justified in relying on that a part of the journal is an unauthorized interpolation, and thereupon it would be his duty to expunge it. And so there may be conflicting assurances as to whether a given entry is false and, foreign or true and original; and, if he is under any duty of expurgation in the premises, he must assume to find the truth between such contradictory statements as best he may, and erase the entry in question if he is led to believe that it does not belong in the record. And he may be entirely mistaken and misled in each of the instances supposed. His own senses may deceive him. The .senses of another may deceive that other, or that other may intentionally or otherwise misrepresent the fact to him. And where there are the conflicting statements of two, he may rely upon the false statement and discredit the true one. And what would be the result? A solemn and true record would be destroyed beyond recovery or substitution, and the most important, formal and constitutional exercise of power by one of the great departments of government, resulting in statutes of the highest moment to the commonwealth, involving, it .may be, the life, liberty and property of .the citizen, would go for naught. This would not be “to keep the records of the general assembly,” but to destroy them. And all this by the purely ministerial officer, who is charged with their preservation, acting ex parte, or rather upon his own motion, without power to examine witnesses, or even to receive affidavits, while the courts, whose business it must be to determine upon proper presentation, what does constitute the records of the .general assembly, are not invoked and may be powerless to seasonably interfere to preserve those records from spoliation. It is no answer to say that in the case at bar the court is to determine whether there is an interpolation in the house journal and in what it consisted, and order its expurgation if it is found to. be unauthorized. The court in this proceeding can only do that after determining that it was the Secretary of State’s ditty in the absence of all action by any court to have so determined and thereupon proceeded to erase the alleged foreign matter; and the court cannot so adjudge in this instance without affirming for all time the power and duty of that officer to pass upon what these records contain and to expunge all that he finds in them which he thinks does not belong there. Nor is it any answer to the views we entertain, nor to their application in the case at its present stage to say that this is an appeal from a judgment on demurrer to the petition and alternative writ, that the demurrer admits the facts alleged in the petition, and that we must assume the verity of those allegations. This is mere sticking in the bark. The question presented is not whether the averments of the petition are true but whether conceding their truth, the Secretary of State was under a duty to expunge these entries. We say he was not, because such duty Avould be so fraught with and productive of evil in the Avay of the spoliation and mutilation of the very record which the legislature has charged the Secretary of State to safely keep and preserve, or, at the very best, so subject it to imminent risks of destruction, as that the law-makers could not luive intended to ham imposed it — could not, Avliile expressly providing for preservation, have intended to afford opportunity and occasion for destruction — and an implication will not be alloAved which is not only not in line AVith the expressed intent but offers a means of defeating that intent. A duty Avhich puts it in the power of a ministerial officer without adversary proceedings, Avithout notice to anybody, Avithout record of his acts and without his proceedings being subject to review, to change, amend and destroy public records of the most vital importance to the State and to its citizens cannot be implied from the imposition upon him of the duty to safely keep and preserve those records: a poAver to thus destroy, even with the honest intent to preserve, cannot be implied from a duty to keep, guard and protect. And this is our conclusion, that from the statute which requires the Secretary of State to keep the house journal after it has been delivered into his custody by the clerk of the house, there is no implication of a duty or right in him to erase and expunge any entry that he may at any time find in that journal or upon the margin of the paper upon which it is written down, and that officer has no such right nor is he under any such duty.

We have been at some pains in the examination of authorities with reference to this case. We believe there are none directly upon the point last discussed, or upon any really analogous question. There are dicta on a somewhat similar question in the case of Wise v. Bigger, 79 Va. 269, opposed to the view we have adopted, and in the case of Clough v. Curtis, 134 U. S. 361, in line with the doctrine we have declared. The well considered case of Legg v. Mayor & Aldermen of Annapolis, 42 Md. 203, is interesting and instructive on the subject of the authentication, etc., etc., of statutes, as is the elaborately considered case of People v. Hatch, 33 Ill. 9, on the general subject of mandamus to public officers; but neither the dicta in the cases first named, nor the decisions in the latter two, nor any other adjudged case has been of any direct assistance in the consideration of the main point in this case.

The record presents no error, and the judgment of the city court must be affirmed.

Affirmed.