CHAPTER 918
MANDAMUS, NE EXEAT, PROHIBITION AND QUO WARRANTO

Table of Contents

Sec. 52-485. Writ of mandamus.
Sec. 52-486. Mandamus. Return. Judgment for costs.
Sec. 52-487. Enforcement of corporation laws.
Sec. 52-488. Mandamus against corporation to repair highway.
Sec. 52-489. Issue of writ of ne exeat.
Sec. 52-490. Issuance of writ of prohibition.
Sec. 52-491. Complaint in the nature of quo warranto.
Sec. 52-492. Quo warranto; costs to prevailing party; bond.
Sec. 52-493. Order in the nature of prerogative writs.
Sec. 52-494. Notice of rules and writs.

      Sec. 52-485. Writ of mandamus. (a) The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law.

      (b) When any writ of mandamus has been issued, requiring the party to whom it is directed to make a return, if the party fails to do so, the court may issue a peremptory mandamus.

      (c) Any common law requirement that the state's attorney participate in any way in an action for mandamus is abolished.

      (1949 Rev., S. 8221; P.A. 76-100, S. 3; P.A. 76-436, S. 413, 681; P.A. 82-160, S. 180.)

      History: P.A. 76-100 specified that any common law requirement that state's attorney participate in action for mandamus is abolished as of October 1, 1976; P.A. 76-436 substituted superior court judges' rules for supreme court judges' rules and removed power of common pleas court to issue writ of mandamus, reflecting transfer of all trial jurisdiction to superior court, effective July 1, 1978; P.A. 82-160 rephrased the section, inserted Subsec. indicators, and deleted "On or after October 1, 1976" from the provision abolishing any common law requirement that the state's attorney participate in a mandamus action.

      Writ defined. 67 C. 176; 71 C. 390. Is an extraordinary remedy; one not to be extended. 87 C. 63. Lies only where legal right is clear and there is no other legal remedy. 4 C. 178; 8 C. 246; 42 C. 274; 44 C. 182; 45 C. 343; 54 C. 276; 55 C. 590; 59 C. 218; 60 C. 459; 65 C. 360; 73 C. 536; 76 C. 184; 87 C. 63; 147 C. 183; what constitutes other adequate remedy. 103 C. 617; 104 C. 548; will not lie as to functions over which court has no revisory power; 34 C. 415; nor where respondent could not perform act required; 71 C. 663; nor to control discretion or judgment. 37 C. 103; 49 C. 480; 61 C. 567; 63 C. 95; 64 C. 524; 67 C. 180; 72 C. 1; 73 C. 538; 79 C. 154; 96 C. 191; 124 C. 277. Equitable principles control. 67 C. 170; 87 C. 487; 99 C. 222; 109 C. 254. When it issues in general. 73 C. 536; 76 C. 179; id., 652. To enforce private right. 65 C. 360; 71 C. 663; 104 C. 547. Special interest must appear; nuisance. 56 C. 81. Does not lie to enforce private contract right. 44 C. 182; 65 C. 360; 76 C. 651. By state, to secure obedience to judgment in matter of public interest. 71 C. 47. Issuance to enforce right to hold public office. 41 C. 520; 44 C. 320; 74 C. 124; 83 C. 554; 87 C. 548. Against an inferior tribunal. 37 C. 105. As from superior court to common pleas court to compel judge to make finding; 67 C. 170; or certify evidence; 72 C. 39; or to compel probate court to allow, or to correct, appeal. 49 C. 71; 52 C. 218; 76 C. 426; 91 C. 113. Against a public officer. K. 345; 33 C. 305; 38 C. 110; 42 C. 16. Where subordinate officer has been removed. 64 C. 517; 74 C. 121; to compel calling of town meeting. 41 C. 249; 89 C. 557. To compel tax collector to collect tax. 48 C. 157. To compel town treasurer to issue town order. 68 C. 132. In relation to the construction of street railways. 73 C. 327; 74 C. 194; 76 C. 174; 81 C. 645. So, railroad; 71 C. 43; so, city as to construction of bridge; 68 C. 263; to compel issuance of building permit; 73 C. 538; or liquor license; 72 C. 1; or license by health board; 68 C. 111; as to compelling restoration of member of fraternal benefit society. 76 C. 652. Runs only against officer whose duty it is to perform act; 41 C. 253; see where it runs against public board with changing membership. 71 C. 381. Discretion of court as to issuance, and review; 55 C. 590; 59 C. 217; 73 C. 327; 74 C. 194; 76 C. 178; 83 C. 554; 87 C. 487; discretion to delay issuance. 68 C. 271. Law and facts as of time of beginning action control. 82 C. 565; 109 C. 254; but see 68 C. 155; 76 C. 184; 106 C. 700. Supreme court will not issue. 80 C. 326. In what name it issues, and functions of state's attorney. 41 C. 250; 59 C. 409; 71 C. 657; 91 C. 113; 104 C. 549. How it should be directed and served. 71 C. 389. Recognizance for costs and verification. 67 C. 361; 90 C. 639; 91 C. 113. Bond and verification unnecessary when brought to enforce public right. 105 C. 325. Course of proceeding at common law; 41 C. 248; general rules of pleading and practice to be followed. 61 C. 575. Appearance as waiving defects. 6 C. 544; 67 C. 361; 90 C. 638. Attacking return by demurrer; 59 C. 86; 68 C. 271; by motion to quash. 71 C. 47; 81 C. 645; 83 C. 554; 90 C. 638; 103 C. 611; 104 C. 549; 136 C. 691. Issues of fact raised by return to be tried by court. 47 C. 341. Costs. 68 C. 219; 90 C. 638. Judgment as res judicata. 76 C. 174. Removal to United States court. 59 C. 84. Proper method to compel town treasurer to pay order drawn on him. 95 C. 199; 105 C. 325. Lies against county commissioners refusing to refund money received from liquor licenses. 99 C. 383. To compel issuance of mittimus by justice of the peace. 102 C. 33. Demand on public officer not a prerequisite to mandamus. 103 C. 622. To compel assessors to follow statutory rules; 104 C. 545; even though assessors must exercise discretion. Id., 108 C. 258. Will be denied where event subsequent to commencement of action would make useless the relief sought. 109 C. 254. Remedy at law not adequate unless it is specific, adapted to secure the desired result effectively, conveniently, completely and directly upon the very subject matter involved. 138 C. 323. The performance of the duty in section 12-62 is mandatory and can be compelled by mandamus not only by the tax commissioner under section 12-4, but also by the state's attorneys who may invoke mandamus to compel public officers to perform their duties. 150 C. 444. Relief by way of mandamus is only available to one who has complete and immediate right to require that public act be done. 155 C. 283. Where official or agency is authorized to exercise discretionary power, mandamus does not lie. Id. Cited. 162 C. 414.

      Phrase "within its jurisdiction" discussed. 13 CS 448. Writ of mandamus is a prerogative writ which will issue only to enforce a clear legal right where the person against whom it is directed is under a legal obligation to perform the act commanded. 21 CS 33. Mandamus issues to compel performance of a ministerial duty imposed by law and not involving the exercise of a discretion. There must be a clear legal right to the relief and no other remedy. 22 CS 336.

      Subsec. (a):

      Cited. 225 C. 575.

      Cited. 13 CA 124. Cited. 37 CA 348.

      Subsec. (c):

      Cited. 41 CS 302.


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      Sec. 52-486. Mandamus. Return. Judgment for costs. When the party to whom a writ of mandamus is directed makes a return sufficient on its face and the return is denied by the other party, the court shall inquire into the truth of the return. If the return is found untrue, the court may issue a peremptory mandamus in the same manner and on the same principles as if the return were insufficient, and may render judgment for the complainant to recover his costs, and grant execution for such costs. If the return is found to be true and sufficient, the court may render judgment for costs in favor of the party complained of.

      (1949 Rev., S. 8222; P.A. 82-160, S. 181.)

      History: P.A. 82-160 rephrased the section.

      The return, if sufficient, must be found to be untrue, before a peremptory mandamus can issue. 40 C. 381. Method of procedure under statute. 44 C. 390. See note to section 52-485. Where action is brought by state to enforce a public duty, costs may not be taxed against the state. 111 C. 432. Costs may be taxed in favor of the state as prevailing party. 112 C. 665. Plaintiff obtaining judgment may not recover costs where no return was made and hearing had. 115 C. 101.

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      Sec. 52-487. Enforcement of corporation laws. Any stockholder of a corporation may apply for a writ of mandamus against such corporation to compel it to obey the statute laws of the state.

      (1949 Rev., S. 8223.)

      Issuance against corporation in general; 8 C. 246; 29 C. 546; 37 C. 164; 76 C. 179; to compel calling of special meeting; 65 C. 355; to enforce right to examine books. 87 C. 487; 90 C. 638. Cited. 65 C. 355. Cited. 188 C. 531.

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      Sec. 52-488. Mandamus against corporation to repair highway. Any town may apply for a writ of mandamus against any corporation bound to restore or repair any highway or bridge situated in whole or in part within the town if the corporation has neglected or refused to restore or repair the highway or bridge for thirty days after being notified to do so by the selectmen of the town.

      (1949 Rev., S. 8224; P.A. 82-160, S. 182.)

      History: P.A. 82-160 rephrased the section.

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      Sec. 52-489. Issue of writ of ne exeat. The superior court for any judicial district, and, when such court is not in session, any judge thereof, may grant and enforce writs of ne exeat, according to the course of the common law.

      (1949 Rev., S. 8225; P.A. 78-280, S. 2, 127.)

      History: P.A. 78-280 substituted "judicial district" for "county".

      Practice as to the issue of this writ. 21 C. 199.

      Difference between appearance bond and performance bond discussed. 7 CA 11.


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      Sec. 52-490. Issuance of writ of prohibition. Section 52-490 is repealed.

      (1949 Rev., S. 8226; P.A. 76-436, S. 154, 681.)

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      Sec. 52-491. Complaint in the nature of quo warranto. When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.

      (1949 Rev., S. 8227; P.A. 76-100, S. 1.)

      History: P.A. 76-100 allowed court to proceed upon a complaint rather than "by information" and deleted provision for filing of information in county where cause of action arises "at the relation of any person desiring to prosecute the same, against any person usurping any corporate franchise or office".

      See Sec. 9-328 re contests and complaints in election of municipal officers and nomination of justices of the peace.

      Does not lie in state court to test right of one claiming an office in a corporation of the United States. 35 C. 379. Will not be tried when it is too late to make the judgment of any avail. 5 D. 335. Cited. 18 C. 54. Cited. 16 C. 179. Fine and costs, when refused. 10 C. 167. Will not lie to try title to an office not a legally authorized public office. 42 C. 86; 82 C. 398. Legal existence of school district cannot be tried by. 42 C. 90. Inspector appointed by board of street commissioners under charter is subject to quo warranto. 46 C. 480. The state must be a party to every proceeding by quo warranto; but may voluntarily part with such right. 51 C. 127. Title to office can be tried only on writ of quo warranto. 55 C. 121; 61 C. 376. Election of governor; jurisdiction of superior court. Id. In an information in the nature of quo warranto, the relator is the substantial complainant and conducts the cause. 63 C. 181. Is a means to oust an illegal incumbent from an office, not to induct a legal one into it. 66 C. 300; 87 C. 541; 102 C. 595. Proper course of procedure. 69 C. 227, 228. Burden upon respondent to show a complete title to the office in dispute. 71 C. 110; Id., 545; 87 C. 541; 82 C. 122. Only lies in case of public office; not in that of clerk of department appointed under city ordinance. 83 C. 143. Distinguished from mandamus as a means to enforce a right to office. Id., 554. "Pretended town" as a defendant. 77 C. 266. Some offices too minor in character to be object of writ. 94 C. 416. May be used to test constitutionality of statute creating taxing district; but commissioners of district should not be made parties defendant. 104 C. 195. In election contests proper remedy is procedure authorized by section 9-328 rather than this section. 145 C. 648. Where relator is private party claiming title to public office, trial court does not have discretionary authority to deny remedy of ouster when defendant's title is found defective. 174 C. 36. Cited. 182 C. 253. Cited. 185 C. 445. Cited. 219 C. 432.

      Cited. 10 CA 209. Cited. 15 CA 323. Cited. 21 CA 351. Cited. 27 CA 421. Does not expressly require plaintiff in quo warranto action to name and serve person allegedly usurping contested office. Plaintiff's failure to name such persons therefore does not require dismissal. 76 CA 24.

      In a quo warranto proceeding questioning the appointment of the defendant to an office, the burden of proof is upon the defendant to establish his legal right to the office. 21 CS 294. Cited. 30 CS 74. Quo warranto proceeding challenging residency requirement of alderman. Id., 82.


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      Sec. 52-492. Quo warranto; costs to prevailing party; bond. When a complaint in the nature of a quo warranto is brought, the court shall award costs to the prevailing party against the other party as in other civil cases. The party who brings the complaint shall in all cases give bond to the other party for costs, as by law required in other civil actions.

      (1949 Rev., S. 8228; P.A. 76-100, S. 2; P.A. 82-160, S. 183.)

      History: P.A. 76-100 restated provisions in less detailed terms, applying section to complaints rather than informations; P.A. 82-160 made minor changes in wording.

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      Sec. 52-493. Order in the nature of prerogative writs. Any court having cognizance of writs of habeas corpus, mandamus, quo warranto, prohibition or ne exeat may, in any action pending before it, make any order, interlocutory or final, in the nature of any such writ, to the extent of its jurisdiction, so far as it may appear to be an appropriate form of relief.

      (1949 Rev., S. 8229; P.A. 82-160, S. 184.)

      History: P.A. 82-160 made minor changes in wording.

      Appeal lies from denial of writ. 96 C. 718. Cited. 97 C. 428. Cited. 124 C. 645. Cited. 228 C. 106.

      Cited. 46 CA 486.


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      Sec. 52-494. Notice of rules and writs. All notices of rules and writs issued under the provisions of this chapter shall be directed to a proper officer and served by leaving a true and attested copy with the defendant at such time as the court or judge directs; and such court or judge may prescribe a reasonable time for the appearance of the parties.

      (1949 Rev., S. 8230.)

      See Sec. 52-65 re service upon nonresident in a quo warranto case.

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