§ 160. 1. The right to interfere in the proceedings of a corporation by mandamus, is one of so summary a character, that it should be asserted at the earliest convenient time, or it will not be sustained. And especially where, in the mean time, the * facilities for accomplishing a public work, or the public demand for it, have materially changed, the writ will not be awarded.2 But it is often proper and necessary to wait till public works are completed, before moving for the writ.3 2. The English courts decline to hear applications for mandahim to sue for penalties given against a railway which had cut through the highway and not restored it, and a mandamus to enforce the recovery of such penalty was denied on the ground that the prosecutor had no public duty in regard to the highway. Reg. v. Wilson, 11 Eng. L. & Eq. 403; s. c. 1 El. & Bl. 597. Rex v. Stainforth & Keadby Canal Co., 1 M. & S. 32; Rex v. The Commissioners of C. Inclosure, 1 B. & Ad. 378; Reg. v. Leeds and Liverpool Canal Co., 11 Ad. & Ell. 316; Lee v. Milner, 1 Railw. C. 634, Appendix; Reg. v. London & N. W. Railw., 16 Q. B. 864 ; s. c. 6 Railw. C. 634, and Reg. v. Lancashire & Yorkshire Railw., 16 Q. B. 906; s. c. id. 654. So, in Connecticut, where by statute a school district can change its school-house only by a two-thirds vote, and a district which had an established school-house voted by a less majority to have the school kept for the season in a room furnished for the purpose within half a mile from the school-house, more convenient for the children generally, and the district committee kept the school there, a mandamus, being applied for by some members of the district, tax-payers therein, and some of whom had children whom they wished to send to the school, to compel the district committee to have the school kept in the school-house, it appearing that at the time of the application the term of the school had half expired, and had nearly expired at the time of the hearing, this was held not to be such a case as called imperatively for the interposition of the court by mandamus, it not appearing to be a permanent attempt to change the place of the school. Colt v. Roberts, 28 Conn. 330. See State v. Lynch, 8 Ohio N. S. 347. 2 Reg. v. Rochdale & Halifax T. Railw., 12 Q. B. 448. Parkes ex parte, 9 Dowl. P. C. 614; Ante, § 88. Reg. v. Bingham, 4 Q. B. 877; 3 Railw. C. 390. mus, which are not bona fide, but merely to obtain the opinion of the court, even where the prosecutor may have bona fide purchased shares in the corporation, but for the mere purpose of trying a question in which the public have an interest.1 3. In New York it was held, that as there was no special limitation upon this remedy, it might be brought within the time fixed for the limitation of other similar or analogous remedies.5 But this rule seems liable to objection in many cases. The English rule, that the party should suffer no unreasonable delay, in the opinion and discretion of the court, seems more just and equitable, and is countenanced by other American cases. The late decisions of the English courts are very strict upon this point.7 * SECTION XI. Mandamus allowed where Indictment lies. 1. Party may have mandamus sometimes 3. Will not lie where there is other adequate where act is indictable. remedy. 2. Allowed to compel company not to take up their rails. § 161. 1. It seems to have been considered that the fact that a railway or other corporation had exposed themselves to indictment by the very act or omission proposed to be remedied by mandamus, was no sufficient answer to the application. But we are not to understand by this that the two remedies are regarded as in any just sense concurrent, and at the election of the party injured. An indictment is ordinarily no adequate redress for private wrong. The case of a nuisance, put by Lord Denman, in the last case, illustrates the subject fairly. The indictment only redresses the public wrong inflicted by a nuisance. One who suffers special damage is entitled to a private action, and sometimes to specific redress, in equity or by mandamus. 4 Reg. v. Liverpool, M. & N. Railw., 21 L. J. Q. B. 284; 16 Jur. 149; 11 Eng. L. & Eq. 408; Reg. v. Blackwall Railw., 9 Dowl. P. Cas. 558. 5 The People v. The Supervisors of West Chester, 12 Barb. 446. 6 Mayor, &c. of Savannah v. State, 4 Ga. 26. 7 Reg. v. Townsend, 28 Law Times, 100. 1 Reg. v. Bristol Dock Co., 2 Q. B. 64: s. c. 2 Railw. C. 599; Reg. v. Manchester & Leeds Railw., 3 Q. B. 528. 2. Hence, where a railway company, after having completed their road, under an act of parliament, by which it was provided the public should have the beneficial enjoyment of the same, proceeded to take up the railway, a mandamus was awarded to compel them to reinstate it.2 3. And it may safely be affirmed that the mandamus will be denied where there is other adequate remedy.3 SECTION XII. Judgment upon Petition for Mandamus revisable in Error. § 162. In those states where the court having jurisdiction to award the writ of mandamus is not the court of last resort, the judgment upon applications for such writs is revisable upon writ 'Rex. v. The Severn & Wye Railw., 2 B. & Ald. 646. Abbott, Ch. J., said, in giving judgment: "If an indictment had been a remedy equally convenient, beneficial, and effectual as a mandamus, I should have been of opinion that we ought not to grant the mandamus"; but it is not, for a corporation cannot be compelled, by indictment, to reinstate the road." 66 "The court may, indeed, in case of conviction, impose a fine, and that fine may be levied by distress; but the corporation may submit to the payment of the fine and refuse to reinstate the road." Grant on Corp. 270. And in State v. Hartford & New H. Railw. Co., 29 Conn. 538, this writ was awarded to compel the defendants to continue to run trains to connect with the steamboats on the Sound, after the company had formed a connection with the New Haven & New York Railw., and had discontinued running trains across that portion of their road which connected with the steamboats. And it was here considered that a contract with the connecting railway to discontinue connection with the steamboats for some equivalent benefit to both companies was void, as against good policy, and that it was a proper case for the public attorney to interfere by way of petition for mandamus. 3 Reg. v. Gamble & Bird, 11 Ad. & Ell. 69; Reg. v. Victoria Park Co., 1 Q. B. 288; Draper v. Noteware, 7 Cal. 276; Williams v. Judge of County Court, 27 Miss. 225; Trustees v. State, 11 Ind. 205; Bush v. Beaven, 1 H. & C. 500; s. c. 32 L. J. Exch. 54. But in People v. Hilliard, 29 Ill. 413, the court hold, that it is not indispensable that the petition should state that the relator is without any other sufficient remedy. If such appear to the court to be the fact, the alternative writ will not be quashed. Id. But see School Board v. People, 20 Ill. 525, contra. People v. Wood, 35 Barb. 653; Goodwin v. Glazer, 10 Cal. 333. But the existence of an equitable remedy is no ground for refusing mandamus. Commonwealth v. Commissioners of Alleghany, 32 Penn. St. 218. of error. But it is said not to be the province of a court of error 1 Reg. v. The Manchester & Leeds Railw., 9 Q. B. 528, reversing the judg- § 163. 1. WHERE the proceedings against a railway are in a court of record, and according to the course of the common law, after final judgment the writ of error is the appropriate process for their revision in a superior court, and the writ of certiorari will not lie. But the certiorari is the proper process to bring up an unfinished proceeding,2 in an inferior court of record, or a * summary The King v. Inhabitants of Pennegoes, 1 B. & C., 142; s. c. 2 Dow & R. 209; Queen v. Dixon, 3 Salk. 78. Certiorari is the appropriate remedy to revise erroneous rulings of county commissioners, when there is no mode of revision appointed by law. Mendon v. County Commissioners, 2 Allen, 463. The same principle is maintained in People v. Board of Delegates, 14 Cal. 479. It does not lie to review acts simply ministerial, but all acts of a judicial nature, whether of a court or a municipal board. Robinson v. Supervisors, 16 Cal. 208. And see, to the same point, People v. Board of Health, 33 Barb. 344; People v. Hester, 6 Cal. 679; Borough of Sewickley, 2 Grant's Cases, 135; Justice, &c. v. Hunt, 29 Ga. 155. But see Camden v. Mulford, 2 Dutch. 49; State v. Jersey City, id. 444. The power of review on a common-law certiorari extends not only to questions affecting the jurisdiction of the magistrate and the regularity of the proceedings before him, but to all other legal questions. Mullins v. People, 24 N. Y. 399; Jackson v. People, 9 Mich. 111. But see People v. Van Alstyne, 32 Barb. 131; People v. Board of Delegates, 14 Cal. 179. Only questions raised by the record can be considered. People v. Wheeler, 21 N. Y. 82. And see Frederick v. Clarke, 5 Wisc. 191; Greenway v. Mead, 2 Dutch. 303; Low v. Galena & Chicago Railw., 18 Ill. 324; Mayo County, in re, 14 Ir. Com. Law, 392. The writ of certiorari before judgment corresponds to the writ of error after it. Commonwealth v. Simpson, 2 Grant's Cases, 438. And a proceeding by certiorari is like an appeal, and is governed by the same rules, so that the plain |