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When adequate compensation can't be had at law...

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  • Legalbear
    But it has been well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person
    Message 1 of 2 , Mar 1, 2011
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      But it has been well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will 14*14 be treated by the courts as null and void;" citing Osborn v. Bank of the United States and Davis v. Gray. Pennoyer v. McConnaughy, 140 US 1, 13-14 (1891).

       

       

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    • Frog Farmer
      ... The problem is that people have to have the initiative (guts) to go for the writ in a timely fashion. When they do, they realize the power they do have.
      Message 2 of 2 , Mar 7, 2011
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        > But it has been well settled, that, when a plain official duty,
        > requiring no exercise of discretion, is to be performed, and
        > performance is refused, any person who will sustain personal injury by
        > such refusal may have a mandamus to compel its performance; and when
        > such duty is threatened to be violated by some positive official act,
        > any person who will sustain personal injury thereby, for which
        > adequate compensation cannot be had at law, may have an injunction to
        > prevent it. In such cases, the writs of mandamus and injunction are
        > somewhat correlative to each other. In either case, if the officer
        > plead the authority of an unconstitutional law for the non-performance
        > or violation of his duty, it will not prevent the issuing of the writ.
        > An unconstitutional law will 14*14 be treated by the courts as null
        > and void;" citing Osborn v. Bank of the United States and Davis v.
        > Gray. Pennoyer v. McConnaughy, 140 US 1, 13-14 (1891).

        The problem is that people have to have the initiative (guts) to go for
        the writ in a timely fashion. When they do, they realize the power they
        do have.

        Here, they call them writs of mandate and prohibition. Mandate makes
        them perform a duty; prohibition stops them from taking an action.
        There can be no discretion involved.

        I once used a writ of mandate very effectively. It was like I was the
        prosecutor and the judge was the defendant. Lots of fun! It's your
        power to make sure things are done right. Waive it, and you might
        regret it.

        Regards,

        FF
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