*599On Petition for Rehearing.
Montgomery, J.3. Appellant's learned counsel, in support of the petition for rehearing, earnestly contend that this court should consider and pass upon the constitutional question submitted, regardless of the nature of the action. This argument should be addressed to the legislature rather than to the court. Under the prevailing practice, the validity of a statute will only be determined when properly presented in a bona fide controversy between adversary parties. Counsel correctly understand the use of the writ of mandamus as anciently issued from the Court of King’s Bench in England, which was “to prevent a failure of justice, and for the execution of the common law, or of some statute, or of the King’s Charter.” This writ was accordingly used, by that high court in its discretion, where the law had established no specific remedy, and where, in justice and good government, there ought to be one. Counsel cite with confidence the case of Welch v. Swasey (1907), 193 Mass. 364, 79 N. E. 745, 23 L. R. A. (N. S.) 1160, 118 Am. St. 523, as an apt authority for their contention. The subject-matter involved in the two cases is quite similar, but the law and the practice governing the issuance of writs of mandamus in Massachusetts and in this State are dissimilar. In that state the writ is issued only by the supreme court, the highest court of law in the commonwealth, whose powers and duties in this respect are as extensive as the Court of King’s Bench. The statutes which define its jurisdiction declare: “The court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein, where no other remedy is expressly provided, and may issue writs of error, certiorari, mandamus, prohibition, quo warranto, and all other writs and processes to courts of inferior jurisdiction, corporations, and individuals, necessary to the furtherance of *600justice and the regular execution of the laws.” Public Stat. 1882 (Mass.) 831. It seems apparent to us that that case is without weight in the pending controversy.
2. Counsel assume that in this State resort may be had to a proceeding by mandamus where no other adequate remedy is apparent. This is not correct, but authority to issue the wait is restricted to “the performance of an act which the law specially enjoins, or a duty resulting from an office, trust or station.” The writ will be issued, within the limitations of the statute, as a anatter of right, in favor of a petitioner who shows a clear legal right to the thing demanded and an imperative duty on the part of the respondent to do the act required, in the absence of any other adequate reanedy. This court cannot legislate so as to authorize circuit courts to extend relief through this writ, where neither law nor usage sanctions such practice.
3. In the citation of authorities, counsel fail to distinguish between cases in which the respondent asserts the unconstitutionality of a statute in excuse of nonperformanee of its requirements, and those in which the relator seeks to compel performance of an act which the law prohibits. This court has permitted respoaidents in mandamus proceedings to raise constitutional questions, although it does not well accord with public policy to allow ministerial officers to obstruct the adaninistration of law, by refusing to execute saich statutes as they may deem invalid, and many courts decline to tolerate such practice. It is quite a different thing to hold that such an officer anust, at his peril, disobey the specific commands of a law duly enacted and promulgated, at the behest of any one who may be of opinion that such law is unconstitutional. The proper function of anandaanus is to enforce obedience to law, and not disobedience, or even to litigate its validity.
The case of Parker v. State, ex rel. (1892), 133 Ind. 178, 18 L. R. A. 567, is cited as an authority for this proceed*601ing. The plaintiff in that ease sought and obtained an injunction, as well as a writ of mandamus, and the right to determine the constitutionality of the statute involved, preliminary to the issuance of the writ, ivas not questioned nor considered by the court.
"We have given this matter full and careful consideration, both originally and in review, and are clearly of the opinion that we cannot disturb the action of the lower court.
The petition for rehearing is overruled.