2017 Nebraska Revised Statutes
Chapter 25 - COURTS; CIVIL PROCEDURE
25-2156 Writ of mandamus; to whom issued.

25-2156. Writ of mandamus; to whom issued.

The writ of mandamus may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.

Source

• R.S.1867, Code § 645, p. 507;
• R.S.1913, § 8271;
• C.S.1922, § 9224;
• C.S.1929, § 20-2156;
• R.S.1943, § 25-2156.

Cross References

• To compel public corporations to pay judgment, see section 77-1623.

Annotations

• 1. Scope

• 2. When issued

• 1. Scope

• A duty which a private landowner would have in complying with ordinances placing restrictions on a specific use of property is not a duty that results from any "office, trust or station". State ex rel. City of Alma v. Furnas Cty. Farms, 257 Neb. 189, 595 N.W.2d 551 (1999).

• Nothing in these sections governing mandamus indicates a legislative intent to waive sovereign immunity for mandamus actions against a state agency. Henderson v. Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520 (1999).

• Mandamus only lies to enforce the performance of a ministerial act or duty, and not to control judicial discretion. State ex rel. Wright v. Pepperl, 221 Neb. 664, 380 N.W.2d 259 (1986).

• A motion for a writ of mandamus to compel the enforcement of a plea bargain agreement is not properly granted where the relator has the alternative remedy of a motion requesting the district court to enforce the agreement or dismiss the charges brought and where the relator has not entered a guilty plea or taken other action in detrimental reliance upon the agreement. State ex rel. Fortner v. Urbom, 211 Neb. 309, 318 N.W.2d 286 (1982).

• A writ of mandamus may require an inferior tribunal to exercise its judgment but it may not control judicial discretion. State ex rel. Stansbery v. Schwasinger, 205 Neb. 457, 289 N.W.2d 506 (1980).

• The exercise by county commissioners of their authority to acquire or accept rights-of-way or to establish and/or improve a new road is vested in the sound discretion of the commissioners and may not be compelled by mandamus. State ex rel. Stansbery v. Schwasinger, 205 Neb. 457, 289 N.W.2d 506 (1980).

• Mandamus is generally not available for quasi-judicial or discretionary duties, but is available if the duty is ministerial. Singleton v. Kimball County Board of Commissioners, 203 Neb. 429, 279 N.W.2d 112 (1979).

• Granting of disability pension under city ordinance in question was judicial in nature; mandamus not a proper remedy upon refusal to grant pension. Watts v. City of Omaha, 184 Neb. 41, 165 N.W.2d 104 (1969).

• In absence of special provisions to the contrary, ordinary rules of pleading apply to mandamus. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).

• Judicial discretion cannot be controlled by mandamus. State ex rel. Coulter v. McFarland, 166 Neb. 242, 88 N.W.2d 892 (1958); State ex rel. Cumming County Farm Bureau v. Tighe, 124 Neb. 578, 247 N.W. 419 (1933).

• Mandamus is not a preventive remedy but is a coercive writ. State ex rel. Bates v. Morgan, 154 Neb. 234, 47 N.W.2d 512 (1951).

• Mandamus is a proper remedy to enforce the performance of a ministerial act. State ex rel. Herman v. City of Grand Island, 145 Neb. 150, 15 N.W.2d 341 (1944).

• To warrant issue of mandamus against officer to compel him to act, the duty must be imposed on him by law, it must exist at the time the writ is applied for, and it must be clear. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).

• Writ of prohibition is abolished; mandamus lies where no adequate legal remedy. State ex rel. Parmenter v. Troup, 98 Neb. 333, 152 N.W. 748 (1915).

• When duty is made plain by statute, and officer is given no discretion, performance may be compelled by mandamus. State ex rel. Pinkos v. Rice, 98 Neb. 36, 151 N.W. 925 (1915).

• Mandamus cannot be used to control discretion of inferior tribunal or board. State ex rel. Davis v. Hoctor, 98 Neb. 15, 151 N.W. 923 (1915).

• Writ should be issued in name of state upon relation of party seeking relief. City of Crawford v. Darrow, 87 Neb. 494, 127 N.W. 891 (1910).

• Mandamus may lie to enforce but not to control judicial action. State ex rel. Reynolds v. Graves, 66 Neb. 17, 92 N.W. 144 (1902).

• Mandamus cannot be used to try the title or right to possession of real or personal property. State ex rel. Jones v. Williams, 54 Neb. 154, 74 N.W. 396 (1898).

• Court cannot by mandamus control action of county board in the adjustment of claims against a county. State ex rel. Wyckoff v. Merrell, 43 Neb. 575, 61 N.W. 754 (1895).

• Mandamus may issue to officer of legislative branch of government. State v. Elder, 31 Neb. 169, 47 N.W. 710 (1891).

• Statute of limitations applies. State ex rel. Chem. Nat. Bank v. School Dist. No. 9 of Sherman County, 30 Neb. 520, 46 N.W. 613 (1890).

• Mandamus will not issue to a justice of the peace to require him to make an order after the cause has been removed to district court. State ex rel. Rudabeck v. Livsey, 27 Neb. 55, 42 N.W. 762 (1889).

• 2. When issued

• Mandamus is an extraordinary remedy issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear legal right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and (3) there is no other plain and adequate remedy available in the ordinary course of law. A grant or denial of mandamus is within the trial court's judicial discretion. An accepted affiliation petition pursuant to section 79-413 et seq. creates duties imposed by law owed to the public which, if ministerial, may be enforced by writ of mandamus. State ex rel. Fick v. Miller, 255 Neb. 387, 584 N.W.2d 809 (1998).

• When the purpose of a request to inspect a corporation's books is to ascertain the value of the requesting shareholder's stock, the statutory penalty of 10 percent of the value of that stock for failure to comply is not an adequate remedy at law and a writ of mandamus compelling the corporation to open its books may lie. State ex rel. Lillie v. Cosgriff Co., 240 Neb. 387, 482 N.W.2d 555 (1992).

• A writ of mandamus is proper to compel the transportation of nonprofit private school children on a public school district's buses pursuant to section 79-487. State ex rel. Bouc v. School Dist. of City of Lincoln, 211 Neb. 731, 320 N.W.2d 472 (1982).

• Before a peremptory writ of mandamus may issue, it must appear to the court that (1) a duty is imposed by law; (2) the duty exists at the time the writ is applied for; and (3) the duty to act is clear. State ex rel. Neb. Nurses Assn. v. State Board of Nursing, 205 Neb. 792, 290 N.W.2d 453 (1980); State ex rel. Blome v. Bridgeport Irr. Dist., 205 Neb. 97, 286 N.W.2d 426 (1979).

• A writ of mandamus may be issued to compel performance of act specifically provided by law. State ex rel. Agricultural Extension Service v. Miller, 182 Neb. 285, 154 N.W.2d 469 (1967).

• Mandamus will not lie where city council acted in executive or administrative capacity to make operative the provisions of a state law already existing. State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945).

• After the statutory period for appeal by a taxpayer has passed, one in whose favor a claim has been duly allowed by a county board may by mandamus compel the issuance of a warrant for the payment of such claim. State ex rel. Campbell v. Slavik, 144 Neb. 633, 14 N.W.2d 186 (1944).

• In the enforcement of judgments against municipal corporations, mandamus is a substitute for execution, and may properly be used to enforce satisfaction of a judgment against a county. State ex rel. Warren v. Raabe, 140 Neb. 16, 299 N.W. 338 (1941).

• Mandamus lies to compel issuance of certificate of registration for practice of engineering and architecture, where certificate is unreasonably and arbitrarily refused by board of examiners. Downs v. Nebraska State Board of Examiners, 139 Neb. 23, 296 N.W. 151 (1941).

• Mandamus will lie to compel a public officer to perform a ministerial duty. State ex rel. Cashman v. Carmean, 138 Neb. 819, 295 N.W. 801 (1941).

• Mandamus is proper remedy to enforce stockholder's right to inspect books and records of state bank, remedy by inspection and copying being inadequate. State ex rel. Charvat v. Sagl, 119 Neb. 374, 229 N.W. 118 (1930).

• Mandamus will not lie to compel county court to vacate order denying jury trial to one charged with liquor offense, in view of adequate legal remedy. State ex rel. Garton v. Fulton, 118 Neb. 400, 225 N.W. 28 (1929).

• Mandamus lies to compel railroad company to furnish cars to shipper. State ex rel. Luben v. Chicago & N. W. Ry. Co., 83 Neb. 524, 120 N.W. 163 (1909).

• Mandamus is proper to compel one who diverts public water to maintain bridge over canal. Nuckolls County v. Guthrie & Co., 76 Neb. 464, 107 N.W. 779 (1906).

• Mandamus lies to compel surrender of records by officer to his successor. State ex rel. Coney v. Hyland, 75 Neb. 767, 107 N.W. 113 (1906).

• Mandamus lies to require treasurer to deposit funds in depository bank. State ex rel. First Nat. Bank of Atkinson v. Cronin, 72 Neb. 636, 101 N.W. 325 (1904).

• Mandamus lies to compel county to join in repair of county line bridge or unequivocally refuse. Iske v. State ex rel. Pankonin, 72 Neb. 278, 100 N.W. 315 (1904).

• Mandamus lies to compel police authorities to prevent open violation of law. Moores v. State ex rel. Dunn, 71 Neb. 522, 99 N.W. 249 (1904).

• Mandamus will lie to enforce discharge of duty by executive state officer. State ex rel. Wright v. Savage, 64 Neb. 684, 90 N.W. 898, 91 N.W. 557 (1902).

• Duty imposed upon officer and not upon his successor may be enforced by mandamus after expiration of term. Kas v. State ex rel. School Dist. No. 1, Sarpy County, 63 Neb. 581, 88 N.W. 776 (1902).

• Mandamus lies to compel school board to execute district's command. Krull v. State ex rel. Furgason, 59 Neb. 97, 80 N.W. 272 (1899).

• Mandamus lies to reinstate pupil in school. Jackson v. State ex rel. Majors, 57 Neb. 183, 77 N.W. 662 (1898).

• Mandamus is proper remedy by county to compel county officer to report fees. State ex rel. Wayne County v. Russell, 51 Neb. 774, 71 N.W. 785 (1897).

• Mandamus may be used to compel erection of viaduct in metropolitan city. Chicago, B. & Q. R. R. Co. v. State ex rel. City of Omaha, 47 Neb. 549, 66 N.W. 624 (1896).

• Mandamus is proper remedy to compel canvassing board to reconvene and correct canvass of returns. State ex rel. Welty v. McFadden, 46 Neb. 668, 65 N.W. 800 (1896).

• Mandamus lies to compel approval of official bonds. State ex rel. Horne v. Holcomb, 46 Neb. 88, 64 N.W. 437 (1895).

• Relator must trace his right through a public duty of respondent and not his private obligation. State ex rel. Gillilan v. Home St. Ry. Co., 43 Neb. 830, 62 N.W. 225 (1895).

• Mandamus lies to compel county to repair bridge. Dutton v. State ex rel. Pankonin, 42 Neb. 804, 60 N.W. 1042 (1894).

• Mandamus will lie to enforce duty which law enjoins when respondent in default. Strunk v. State ex rel. Lippi, 33 Neb. 322, 50 N.W. 14 (1891).

• Mandamus lies to compel payment of official salaries. Von Forel v. State, 4 Neb. Unof. 843, 96 N.W. 648 (1903).