defendants. The latter contended that the granting of relief by mandamus rests in the discretion of the court; citing 4 Hill 583; 13 Barb. 450; 1 Cow. 501; 2 Johns, 207.
Corliss, C. J. This proceeding was instituted in the territorial supreme court to compel the defendants to levy a tax to pay a certain judgment recovered against the county of Stutsman. We are not called upon in this case to determine the question of our original jurisdiction of the writs specified in the constition, or the extent of such jurisdiction, if any. We take this case as the successor of the territorial supreme court. We are not asked to initiate jurisdiction by the writ of mandamus. The jurisdiction has already attached, and it is the duty of this court, as the successor of the territorial supreme court, to pass upon the merits of this proceeding. The relators ask for a peremptory writ, admitting the truth of all the facts set forth in the original and amended return, which will control the court in the disposition of this matter. On the other hand, the defendants move to quash the alternative writ. This motion we think should be granted. The writ of mandamus is not a writ of right. Its allowance rests in the discretion of the court. That discretion, however, is not to be capriciously exercised. High, Extr. Rem. §§ 6, 9; Devereaux v. City of Brownsville, 29 Fed. Rep. 742-751; People v. Common Council, 78 N. Y. 56-61. If to refuse to issue the writ would result in a denial of justice no court can, in the rightful exercise of discretion, withhold it. But where the temporary denial of the writ will not only not work injustice, but on the other hand will prevent possible irremediable injustice, no court should look merely to the bare question of technical legal right, and ignore the facts presenting a clear case for the exercise of its equitable discretion to withhold the remedy until the granting of it cannot possibly result in ultimate wrong. Said the court in State v. Graves, 19 Md. 351, speaking of mandamus: “Not a writ of right, it is granted, not as of course, but only at the discretion of the court to whom the application is made, and this discretion will not be exercised in favor of applicants, unless some just or useful purpose may be answered by the writ.” No just purpose would be answered by the issuance of the writ under the facts in this case.
