State ex rel. Samuel Smith & Co. v. Board of Liquidators of Floating Debt of State

Howe, J.,

conmrring. The true object of the writ of mandamus is to enforce a clear legal right by compelling an officer to perform a legal duty which he has no discretion to decline. The showing made by relators does not authorize such a process. They claimed in their petition, and sought to prove, a right of absolute priority in the distribution of these bonds. This right of priority they signally failed to ■establish. Having thus failed, they shifted their ground completely, .and claimed on equitable considerations a distribution pro rata, and ■even this they did not do by any amendment of their pleadings, but by a mere verbal request of their counsel. There is no law requiring ¡such pro rata division. The respondents are not the administrators of .a dead person, or the assignees of a bankrupt. The equitable right ■claimed is of very doubtful character, but if it exists, it is not to be «enforced by mandamus. The courts of Louisiana, by proceedings via ordinaria, accompanied with the conservatory remedies provided in the *391Code of Practice, are amply able to protect equitable rights. Hennen’s Digest, “Equity,” page 480. They will marshal securities and determine priority as to contributions, and the rank of different claimants holding liens on the same fund or estate. They will decree an account ■of assets, arrest creditors in their race of diligence and force them into the court to litigate their claims together. In these particulars, as in many others, they proceed according to the principles of equity. But they do not proceed by mandamus. Much less do they attempt'by mandamus to guide the co-ordinate branches of the government in any matter of mere discretion or good taste.

Eor these reasons, and those given in the written opinion of the judge a quo, I concur in the decree pronounced,

Rehearing refused.