State ex rel. Mahan v. Dubuclet

On the Merits. It is held by the appellant, and we think correctly, that the facts of this case do not warrant the issuing of a mandamus. The act which the Treasurer was called upon to perform is not one purely ministerial. It is an act which he is not required to perform by law and which it is not clear that he is authorized to perform. The doing or not doing the act involved the exorcise of discretion by the officer, and it is well settled that the writ is never issued to compel officers to do an act in which they have a discretionary power. 2 L. R., 395; 6 An., 68; Code of Practice, 829,832; 14 An., 225; 15 An., 334 ; 21 An., 352; 20 An., 518. It is therefore ordered, adjudged and decreed that’the judgment of the district court be annulled, avoided and reversed. It is further ordered that the rule taken by the relator against the defendant be dismissed at relator’s costs.