MANDAMUS. 2119

ARTICLE 60.

MANDAMUS.

1. Application for. 2. Rule to show cause why it should not issue. 3. Answer. 4. Defendant not permitted to rely on any matter in second application which might have been pleaded to the first.

5. Pleading. 6. To stand for trial, when. 7. Trial by jury or court; judgment. 8. Costs. 9. Ex parte hearing. 10. Dismissal of petition with costs. 11. Must be peremptory. 12. Appeal bond.

An. Code, sec. 1. 1904, sec. 1. 1888, sec. 1. 1806, ch. 90, sec. 9. 1858, ch. 285, sec. 1.

1. All applications for granting writs of mandamus shall be made to
the circuit courts for the several counties and the superior court of Balti-
more city, the court of common pleas or the Baltimore city court, or to
the judges of said courts, respectively, during the recess of the court, and
shall be commenced by petition verified by the affidavit of the applicant
and setting forth fully the ground of his application.

When mandamus will issue.

Mandamus will not issue to compel mayor and city council to levy a special
assessment to pay a judgment. Mandamus is not a writ of right, but is within dis-
cretion of court, which, however, must not be arbitrary; the writ will never be
granted where it is unnecessary or would work injustice or be nugatory or introduce
confusion into municipal administration. Kinlein v. Baltimore, 118 Md. 580.

Mandamus is appropriate in all cases where the law has established no specific
remedy, and where in justice there ought to be one. Harwood v. Marshall, 9 Md.
97; Legg v. Annapolis, 42 Md. 226.

Mandamus will not issue unless petitioner shows a clear legal right in himself, and
a corresponding imperative duty on part of defendant. Frederick County v. Fout,
110 Md. 174; Upshur v. Baltimore, 94 Md. 746.

A ministerial duty may be enforced by mandamus. Sudler v. Lankford, 82 Md. 148;
contra, if the duty is discretionary. Devin v. Belt, 70 Md. 354.

Writ is never issued when it would be nugatory. The application for mandamus
abates upon death of applicant. Booze v. Humbird, 27 Md. 4.

Mandamus will not lie when there is an adequate remedy at law. Brown v.
Bragunier, 79 Md. 242.

Fact that petitioner for mandamus has a remedy in equity does not defeat man-
damus unless former remedy has already been invoked. Baltimore University v.
Colton, 98 Md. 636; Hardcastle v. Maryland & Delaware R. R. Co., 32 Md. 35.

The courts will not refuse mandamus on the mere ground that the plaintiff has
an adequate remedy in damages—art. 26, sec. 25.

Generally.

While mandamus is not a writ ex debito justitiae but rests in sound discretion of
court, latter must not be arbitrary, but must be exercised under established rules

While a few general principles relative to mandamus are stated in the notes to sec. 1,
no attempt is made to collect the cases dealing with that subject but containing no
reference to the statutes—see Md. Digest.