MANDAMUS 2521

ARTICLE 60.

MANDAMUS.

	1. Application for.	5. Pleading.
	2. Rule to show cause why it should not	6. To stand for trial, when.
	issue.	7. Trial by jury or court; judgment.
	3. Answer.	8. Costs.
	4. Defendant not permitted to rely on	9. Ex parte hearing.
	any matter in second application	10. Dismissal of petition with costs.
	which might have been pleaded to	11. Must be peremptory.
	the first.	12. Appeal bond.

An. Code, 1924, sec. 1. 1912, 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 as-
sessment 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. Bragumer,
79 Md. 242.

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

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
of law. Brooke v. Widdicombe, 39 Md. 404; Weber v. Zimmerman, 23 Md. 53; Hard-
castle v. Maryland & Delaware R. R. Co., 32 Md. 35.

This article referred to in overruling contention that mandamus was improperly
directed to be issued after demurrer to answer and without proof to support petition;
demurrer to answer in mandamus case is proper. Where there is no answer whatever
or an insufficient answer, the proceedings are not conducted as prescribed by this
article so as to properly present questions. Price v. Ashburn, 122 Md. 521.

The essential nature of mandamus and its force and effect were not changed by
act of 1858, ch. 285; purpose of that act. When writ of mandamus issues, it cannot

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.