Page:The American Cyclopædia (1879) Volume XI.djvu/106

98 MANDAMUS when necessary for the exercise of their juris- diction. The award of the writ is generally a matter of judicial discretion. He who seeks this remedy must show that he is innocent of laches, that he has a clear right in the prem- ises, that there has been a distinct refusal to do that which the petitioner would compel, and finally that he has in the ordinary processes of law no adequate remedy. The most common practice is for the court in the first instance to issue a writ commanding to be done that which is prayed for, or that the respondent show cause why it should not be done ; or an order may issue in the first instance that the respon- dent show cause why a peremptory mandamus should not issue. In either case the defendant makes answer, and if the petitioner, who is usually called relator, is satisfied with the state- ment of facts in the answer, he will demur thereto, and the question will thus be referred to the court on an issue of law. If the relator is dissatisfied with the statement of facts in the answer, he may join issue thereon, and this issue of fact will be tried as the court may di- rect. If either issue is decided in favor of the relator, a peremptory mandamus is awarded. In a very clear case the peremptory writ may issue in the first instance. When directed to a court, the writ merely sets such court in motion; it bids it exercise a power which is vested in it. It does not presume to revise the decision of the inferior tribunal upon a question either of fact or law addressed to its judgment. As examples of this jurisdiction, mandamus has been granted to compel the sealing of a bill of exceptions or its amendment according to the truth of the case ; or, at suit of a defendant, to require the inferior court to enter judgment upon a verdict, in the regular course of proceedings, in order to enable the defeated party to bring his writ of error. But the writ does not lie to control courts in respect to matters of practice under their rules, where their authority is discretionary. Mandamus often issues to commissioners of highways and supervisors of counties, commanding them to perform the peculiar duties of their office; ordering them, for example, to open a road regularly laid out; to estimate the damages caused to landowners thereby, or to levy a tax as they were required by law to do for the payment of damages caused by laying out a highway. Corporations, too, are often com- 1 by this process to do what their con- tituent acta require. Thus railway corpora- ions have been compelled to pursue, in cross- ing rivers, the mode prescribed in their char- ters, and have been forbidden to obstruct navigation by the location of their track. Re- tmnir public officers may also be compelled by UIH writ to deliver official books and papers t<> their successors, and corporations to admit members to tlu-ir privileges, to restore a mem- irregul.trlv disfranchised, and to allow di- rectors, and in proper cases other corporators to have inspection of books. It is a common MANDANS process to compel the performance of public duties by public officers, but in such cases the attorney general or other public prosecuting officer should be relator, and a private citizen would not be allowed to take action except where some special and peculiar right of his own was involved in the performance of the public duty. The action of the executive, however, in the performance of his peculiar duties, is not to be controlled by this writ. MANDANS, an Indian tribe of the Dakota family, dwelling on the Upper Missouri. Ac- cording to their traditions, they came from under the earth, where they lived near a sub- terranean lake. They ascended by means of a grape vine, which a heavy woman broke, so that part of the tribe were left below. About 1772 they are said to have resided 1,500 m. from the mouth of the Missouri, in nine villages, en- circled with earth walls, two on the east and seven west of the river. The Sioux soon after drove the eastern villages to the Rickaree or Arickaree country, further up the river, and they emigrated again before those on the west followed them. Lewis and Clarke found them 1,600 ra. up the river, in two villages, one on each side of the river, and as they were friend- ly built Fort Mandan near them. By the ad- vice of the explorers they made peace with most of the neighboring tribes. In 1822 they were estimated at 1,250 in number, and though some placed the population much higher, it did not probably exceed 2,500. They made a treaty with Gen. Atkinson and the agent O'Fal- lon, July 30, 1825, recognizing the authority of the United States, and making peace. They continued to lose severely by their wars with the Sioux, who to this day pursue them with unrelenting hatred, parties under White Bon- net having twice attempted to destroy their village in 1870. In 1832 they dwelt at Fort Clarke, near the mouth of Knife river, and were supposed to number 2,000. In 1837 the smallpox broke out among them, and re- duced the tribe to 145 souls in all, chiefly women and children. The survivors took refuge with the Rickarees. They are often spoken of as having been entirely swept away ; but they gradually regained numbers, and al- ways maintained a distinct tribal organization. In 1845 they removed to their present abode. In 1850 they numbered 50 lodges and 150 souls, and in 1852 had increased to 385. They are now (1874) with the Rickarees and Min- netarees at Fort Berthold, Dakota territory, on the left bank of the Missouri, in lat. 47 34' N., Ion. 101 50' W. An executive order of April 12, 1870, set apart a reservation of 8,640,000 acres for the three tribes, in north- western Dakota and eastern Montana, extend- ing to the Yellowstone and Powder rivers. Under a treaty made July 27, 1866, government appropriates $75,000 a year for the three tribes, The Mandans were reported in 1873 as num- bering 479. Though always friendly, living in a permanent village, they have had no mission-