§ 325. “In which a Writ of Mandamus or Prohibition, or an Injunction, is Sought Against an Officer of the Commonwealth.”

The Convention was in considerable doubt as to whether this sub-section was necessary or not. It was included (except so far as injunctions are concerned) in the Bill of 1891; and it reappeared in the Adelaide draft of 1897. At Melbourne (Debates, pp. 320–1) it was omitted, at Mr. Barton's suggestion, on the ground that the words were unnecessary, and might operate as a limitation. On reconsideration (Debates, pp. 1875–85) it was thought advisable to restore the words, owing to principles laid down in American decisions, which show that the power of the Supreme Court of the United States to grant a writ of mandamus is very limited.

AMERICAN DECISIONS.—In order to explain the reasons for inserting the words, and to answer the objections which were urged against them, it is necessary first to examine the American decisions. The Constitution of the United States gives original jurisdiction to the Supreme Court only in “cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party.” Nor has Congress any power whatever to extend the original jurisdiction of the Supreme Court. The Judiciary Act of 1789, which created the Federal Courts, after declaring that the Supreme Court should have appellate jurisdiction from the Circuit Courts and Courts of the several States, in certain cases, provided that it should have power to issue writs of mandamus, in cases warranted by the principles and usages of law, “to any courts appointed, or persons holding office, under the authority of the United States.” (See Re Green, 141 U.S. 325.) In Marbury v. Madison, 1 Cranch 137, this Act was held to be unconstitutional so far as it purported to give the Supreme Court power to issue a mandamus against an officer of the United States (a proceeding which involves the exercise of original jurisdiction) in cases not within the original jurisdiction granted by the Constitution. Marbury had been duly appointed a justice of the peace, and his commission had been duly signed and sealed; but the Secretary of State refused to issue it. The Court held (see Kent, i. 322) that this was a violation of a vested legal right, for which the plaintiff was entitled to a remedy by mandamus; but held also that the mandamus could not constitutionally issue from the Supreme Court.

“To enable this Court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction or to be necessary to enable them to exercise appellate jurisdiction. … It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that

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paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary, in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the Supreme Court, by the Act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution.” (Per Marshall, C.J., Marbury v. Madison, 1 Cranch at p. 175.)

The principles established in Marbury v. Madison are very clear. When a writ of mandamus is sought, the first question is whether “the principles and usages of law” warrant the issue of a mandamus as the proper remedy in the case; and if that question is answered in the affirmative, the question remains whether the Supreme Court has jurisdiction over the parties or the subject-matter. If the mandamus is sought against a non-judicial officer, it is an exercise of original jurisdiction, and the court can only act if the matter comes within the scope of its original jurisdiction. If the mandamus is sought against a court, it is an exercise of appellate jurisdiction, and the court can only act if the matter comes within the scope of its appellate jurisdiction.

It is submitted that, in the absence of this sub-section, the American decisions would be completely applicable to this Constitution, and that no mandamus could issue from the High Court against a non-judicial officer of the Commonwealth except in cases which came within the scope of the original jurisdiction of the Court. There is, of course, the difference that the original jurisdiction of the High Court under this Constitution is wider than that of the Supreme Court of the United States, and that this jurisdiction can, within certain limits, be further enlarged by the Parliament; but that is a difference which does not affect the principle. That principle is that the original jurisdiction of the High Court is limited, and that its power to grant mandamus, prohibition, or injunction—or, for the matter of that, any other remedy whatever—is ordinarily confined, so far as that remedy involves an exercise of original jurisdiction, within precisely the same limits. The difference made by this sub-section is that whenever any person seeks any one of those three remedies against an officer of the Commonwealth, the High Court will have original jurisdiction in the matter—whether or not it is a matter “arising under a treaty,” or “affecting consuls,” or “between States,” &c.

OBJECTIONS ANSWERED.—It was suggested by Mr. Isaacs (Conv. Debates, Melb., pp. 1879, 1882) that the words were unnecessary, inasmuch as the jurisdiction proposed to be given was already covered by sub-sec. iii., which gave original jurisdiction where “the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.” It seems clear, however, that that sub-section only applies where the Commonwealth is the real party, and some person sues or is sued as representing the Commonwealth. (See Note, § 323, supra; and Mr. Barton's remarks, Conv. Deb., Melb., p. 1884.) In applications for mandamus, that is never the case, because a mandamus cannot issue against the Crown, or against any person representing the Crown. (See Note on Mandamus, infra.) A suit “against an officer of the Commonwealth” is a very different thing to a suit against “a person sued on behalf of the Commonwealth.”

Another objection urged was that the mention of these particular remedies might raise the implication that the High Court had no jurisdiction with respect to other remedies not mentioned — such as writs of habeas corpus, certiorari, &c. This argument is practically answered by the foregoing statement of the purport of the provision. The High Court, apart from this sub-section, would have had power to grant the remedies of mandamus, &c., whenever it was incident or necessary to the exercise of their original jurisdiction. This sub-section expressly extends that jurisdiction in the case of three remedies “which are specially in their nature addressed to persons who may be carrying out the provisions of the statute law” (Conv. Deb., Melb., 1885); but as regards all other remedies it leaves the jurisdiction of the court unaltered. That jurisdiction, it is submitted, will be just as extensive as it is in the United States.

“All the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and

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usages of law. So the judges of the Supreme Court, as well as the judges of the District Courts, may, by habeas corpus, relieve the citizens from all manner of unjust imprisonment occurring under or by colour of the authority of the United States, or for acts done, or omitted to be done, in pursuance of a law of the United States, or of a judicial authority of any court or judge thereof.” (Kent, Comm. i. 300; and see Story, Comm. § 1341.)

The well-recognized principle is, that in the exercise of its lawful jurisdiction the court may employ all appropriate remedies; and that principle is not affected by the fact that in a certain class of cases the nature of the remedy sought is made the ground of jurisdiction.

Another objection urged was that the sub-section might enable the judiciary to interfere in political matters, and control the executive acts of the government. A sufficient answer to this is that this sub-section, like all the others, confers a jurisdiction only, not a right of action. It provides that resort may be had to the High Court when a mandamus, &c., is sought against an officer of the Commonwealth; but, as was explained by Mr. Symon, “it does not give any right to get mandamus or prohibition. … It merely gives a jurisdiction in certain applications.” (Conv. Deb., Melb., p. 1877.)

GENERAL JURISDICTION IN MANDAMUS, &c.—Two things must combine in order to give jurisdiction under this sub-section in any matter:—(1) That a mandamus, prohibition, or injunction is sought; and (2) that such remedy is sought against an officer of the Commonwealth. If the nature of the remedy sought, and the character of the party against whom it is sought, answer this description, the High Court has original jurisdiction, irrespective of what the subject of the suit may be.

It must not be supposed, however, that the High Court has no power to issue mandamus, prohibition, or injunction except under this sub-section. Whenever the Court has jurisdiction, original or appellate, in any matter, it has power to grant all remedies necessary or appropriate to the exercise of that jurisdiction. (See United States cases cited, supra.) That is to say, in cases where the person against whom a mandamus, prohibition, or injunction is sought is not an officer of the Commonwealth, then if the character of the parties or the subject-matter of the suit give the High Court original jurisdiction in the matter, the High Court has authority to grant any such writ or remedy in the matter as may be necessary to the exercise of that jurisdiction.

A WRIT OF MANDAMUS OR PROHIBITION.—A writ is a document in the Queen's name, and under the seal of the Crown, or of a court or officer of the Crown, commanding the person to whom it is addressed to do or forbear from doing some act. (Sweet's Law Dictionary.)

Writs are either prerogative or of right. A prerogative writ is one which issues, not of strict right, but in the discretion of the Court. (Shortt, Mandamus, p. 223.)

Mandamus and prohibition are prerogative writs. There are other prerogative writs known to English law, such as habeas corpus, certiorari, procedendo, and quo warranto. The mention in this section of mandamus and prohibition alone is not meant to exclude or limit any jurisdiction which the High Court may otherwise have with regard to other writs; the object was to make it perfectly clear that the courts should have original jurisdiction in every case in which either of these writs, or an injunction, was sought against an officer of the Commonwealth: these three proceedings being selected because they are “specially in their nature addressed to persons who may be carrying out the provisions of the Statute law.” (Conv. Deb., Melb., pp. 1876–85.)

MANDAMUS.—“A writ of mandamus is, in general, a command issuing in the King's name from the court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King's Bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensive remedial nature: … it issues in all cases where the party hath a right to have anything done, and hath no other specific means of compelling its performance.” (Blackstone, Comm. iii. 110. See also Steph. Comm. iii. 615; Shortt, Mandamus, 223.)

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Besides the prerogative writ of mandamus, there are various kinds of statutory mandamus; especially the mandamus in a civil action, first introduced by the (Imperial) Common Law Procedure Act, 1854, and subsequently adopted in the colonial Common Law Procedure Acts. (See Steph. Comm. iii. 619.) This sub-section appears chiefly to contemplate the prerogative writ; but it is submitted that it is wide enough to include any statutory mandamus which may be authorized by federal legislation.

In the colonies, the courts which exercise a jurisdiction corresponding to that of the Queen's Bench have always exercised the right of issuing the prerogative writ of mandamus. It appears that, in the absence of prohibitive Imperial legislation, the Court of Queen's Bench can exercise jurisdiction in every part of the Queen's Dominions, even in colonies in which an independent legislature has been established. “Writs not ministerially directed (sometimes called prerogative writs, because they are supposed to issue on the part of the King), such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no clause in the constitution of Berwick; upon a proper case they may issue to every dominion of the Crown of England. There is no doubt as to the power of this court (i.e., the court of King's Bench), where the place is under the subjection of the Crown of England; the only question is as to the propriety.” (Per Mansfield, C.J., Rex v. Cowle, 2 Burr. 855.) In 1861, a writ of habeas corpus ad subjiciendum was issued from the court of Queen's Bench to certain officers in Upper Canada. (Re John Anderson, 30 L.J.Q.B. 129.)

A mandamus only lies where the applicant has a legal right to the performance of some public duty, and where there is no other adequate remedy. (See Shortt, Mandamus.)

The mandamus provided for in this sub-section is only “against officers of the Commonwealth.” Without express words, the High Court has original jurisdiction to issue a mandamus against any person, corporation, or public officer in any matter coming within the scope of its original jurisdiction; and the power to issue a mandamus to any State or Federal Court is incident to the general appellate jurisdiction of the High Court. (Marbury v. Madison, 1 Cranch 137; and see notes, supra.)

This sub-section merely gives a jurisdiction, and does not confer any right to a mandamus in cases where it did not exist before. (Conv. Deb., Melb., pp. 1875–85.) Consequently the jurisdiction where a mandamus is sought against an officer of the Commonwealth must be read in the light of established authority. It is a clear principle of English law that a mandamus is never granted against the Crown, or the officers or servants of the Crown as such. “That there can be no mandamus to the Sovereign there can be no doubt, both because there would be an incongruity in the Queen commanding herself to do an act, and also because the disobedience to a writ of mandamus is to be enforced by attachment.” (Per Denman, C.J., Reg. v. Powell, 1 Q.B. 361.) The principle, which is laid down clearly in English, Colonial, and American cases, is this: that a mandamus will lie against an officer of the Crown to compel him to perform an act which he is under a statutory or other legal duty to perform; but not to compel him to perform an act in which he has any discretion, or in which he is subject to the commands of the Crown. Thus, in Reg. v. Lords Commissioners of the Treasury, L.R. 7 Q.B. 387, it was held that no mandamus lies to the Lords of the Treasury to compel them to issue a Treasury minute authorizing certain payments.

“I take it, with reference to that jurisdiction, we must start with this unquestionable principle, that when a duty has to be performed (if I may use that expression) by the Crown, this court cannot claim even in appearance to have any power to command the Crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the Crown, and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction. (Per Cockburn, C.J., at p. 394.)

“The question remains whether there is any statutable obligation cast upon the Lords of the Treasury to do what we are asked to compel them to do by mandamus, namely, to issue a minute to pay that money: because it seems to me clear that we

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ought to grant a mandamus if there is such a statutory obligation. … The general principle, applicable not merely to mandamus but running all through the law, is that where an obligation is cast upon the principal and not upon the servant, we cannot enforce it against the servant as long as he is merely acting as servant. Where the intention of the legislature shows that Her Majesty should be advised to do a thing, and where the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obligation against the servants by mandamus merely because the sovereign happens to be the principal.” (Per Blackburn, J., at p. 397.)

In Exp. Mackenzie, 6 S.C.R. (N.S.W.) 306, the Supreme Court of New South Wales refused to issue a mandamus against the Colonial Treasurer to compel him to issue a warrant for the payment of certain moneys voted by Parliament. In Exp. Cox, 14 S.C.R. (N.S.W.) 287, a mandamus against the Secretary for Mines commanding him to hand over to the applicant a mineral lease executed by the Governor, under the Mining Act, was refused by the same court on the ground that the Act did not impose on the Secretary for Mines any such duty. (See also Exp. Krefft, 14 S.C.R. [N.S.W.] 446.) In Exp. Gibson, 2 N.S.W. L.R. 202, the Supreme Court of New South Wales held that a mandamus would lie against the Colonial Treasurer for the issue of a license under the Licensing Act of 1862, on the ground that the Act left the Treasurer no discretion; but the court in its own discretion refused the mandamus.

The American cases are to exactly the same effect, and decide that a mandamus will lie to compel the performance of a merely ministerial duty, but not of a discretionary duty. Thus in U.S. ex rel. Boynton v. Blaine, 139 U.S. 306, the principle was stated by the Court as follows:—

“The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty involving the exercise of judgment or discretion. (U.S. ex rel. Redfield v. Windom, 137 U.S. 636, 644.) When by special statute, or otherwise, a mere ministerial duty is imposed upon the executive officers of the Government; that is, a service which they are bound to perform without further question; then, if they refuse, the mandamus may be issued to compel them. (U.S. ex rel. Dunlap v. Black, 128 U.S. 40, 48.) The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act.” (Brownsville Commissioners v. Loague, 129 U.S. 493, 501.)

So in Decatur v. Paulding, 14 Pet. 497, it was held that a mandamus would not lie against the Secretary of the Navy to compel him to sign a warrant for payment. (See Brashear v. Mason, 6 How. 92.) No power can be asserted by the Supreme Court of the United States “to command the withdrawal of a sum or sums of money from the Treasury of the United States to be applied in satisfaction of disputed or controverted claims against the United States.” (U.S. ex rel. Goodrich v. Guthrie, 17 How. 284. See Kent, Comm. i. 322.) Where a public officer refuses to perform a mere ministerial duty, mandamus is the proper remedy. (Roberts v. United States, 176 U.S. 221.)

PROHIBITION.—“The writ of prohibition issues out of a superior court of law, and is directed to the judge of an inferior court, or the parties to a suit therein, or both conjointly, requiring that the proceedings which have been commenced therein be either conditionally stayed or peremptorily stopped. The object of the writ is the keeping of the court to which it is directed within its proper jurisdiction, or to repress the assumption of authority by any pretended court.” (Broom, Com. Law, p. 216. See also Blackstone Comm. iii. 112; Shortt, Mandamus, &c., p. 426.) The general rule is that prohibition only lies where the inferior tribunal acts either without jurisdiction, or in excess of its jurisdiction, or where its procedure has violated the rules of justice. (See Shortt, 436.)

The writ of prohibition will issue, not only to the regular Courts, but to various public bodies exercising powers of a judicial nature—such, for instance, as the Tithe Commissioners and the Railway Commissioners in England. (See Shortt, p. 433.) In a case relating to the Local Government Board, though the power to prohibit was not decided, Brett, L.J., observed:—“I think I am entitled to say this, that my view of the power of prohibition at the present day is that the Court should not be chary of

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exercising it, and that wherever the legislature entrusts to any body of persons, other than to the superior courts, the power of imposing an obligation upon individuals, the Court ought to exercise, as widely as they can, the power of controlling those bodies of persons, if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.” (Reg. v. Local Government Board, 10 Q.B.D. 321.) But a prohibition will only be granted where the proceedings to be prohibited are of a judicial character. (Shortt, p. 439.) Thus it may be argued that prohibition will lie against the Inter-State Commission when acting in its judicial capacity.

Seeing that a writ of prohibition lies against the parties to a suit, as well as against the judge, it would appear that where an “officer of the Commonwealth” is party to a suit in a State court, a prohibition may issue against him out of the High Court, on the suit of the proper party. It would seem that a prohibition directed to the judge of an inferior court is rather an exercise of appellate than of original jurisdiction, inasmuch as it involves the assumption of an authority to control and revise, in certain respects, the proceedings of the inferior court. So it has been held in the United States that a writ of prohibition cannot issue from the Supreme Court where there is no appellate power given by law, nor any special power to issue the writ. (Exp. Gordon, 1 Black, 503.) And the Judiciary Act of 1789 authorizes the Supreme Court to issue prohibitions to the federal District Courts when proceeding as courts of Admiralty. (Exp. Christy, 3 How. 292; Exp. Graham, 10 Wall. 541.) This jurisdiction could not have been conferred if a prohibition had been thought to involve the exercise of original jurisdiction, because the Supreme Court of the United States has no original jurisdiction in Admiralty cases.

But whether a writ of prohibition be regarded as an original or an appellate proceeding seems immaterial under this Constitution. If appellate, the jurisdiction to issue prohibitions to all federal courts, or courts of federal jurisdiction, is given by s. 73; if original, it would seem that the justices of such courts are “officers of the Commonwealth” within the meaning of this section.

INJUNCTION.—An injunction is a remedy of an equitable nature. It used to be “a writ remedial, issuing out of a court of Equity, in those cases in which a plaintiff is entitled to equitable relief, by restraining the commission or continuance of some act of the defendant.” (Joyce on Injunctions, p. 1.) Injunctions are also issued in some cases by courts of common law, acting on equitable principles. The writ of injunction is now generally abolished, injunctions being obtained by order; though the writ of injunction survives in the common law courts of those colonies where the old Common Law Procedure Acts are still in force.

The necessity for the mention of injunctions here is not quite apparent. An injunction is on a different footing altogether from mandamus and prohibition; it is an ordinary remedy in private suits between party and party. It was probably added because of the analogy which exists, in effect, between a mandamus and an injunction.

IS SOUGHT.—The Constitution gives original jurisdiction to the High Court in all matters in which a mandamus, prohibition, or injunction “is sought” against the Commonwealth. It does not follow, however, that the plaintiff in any suit against an officer of the Commonwealth in which the substantial relief sought does not come within this sub-section can bring the proceeding within the jurisdiction of the High Court by adding an untenable claim for a mandamus, prohibition, or injunction. It is submitted that in such a case the same principle would apply as when a plaintiff endeavours to bring a common law dispute into a Court of Equity by alleging an untenable equity. (See Want v. Moss, 12 N.S.W. L.R. Eq. at p. 108.)

AGAINST AN OFFICER OF THE COMMONWEALTH.—The ministers of State are officers appointed to administer Departments of State (sec. 64), and are clearly “officers of the Commonwealth.” So are officers of the transferred departments who are retained in the service of the Commonwealth (sec. 84). So are the “officers of the Executive Government

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of the Commonwealth” mentioned in sec. 67. And so also, it is submitted, are the members of the Inter-State Commission, and even the Justices of the High Court and of the other federal courts. It is not clear whether the Judges of a State Court invested with federal jurisdiction can be called, in relation to the duties so imposed upon them, “officers of the Commonwealth.” The Commonwealth investiture acts upon the court; the Judges of that Court are appointed, removed, controlled, and paid by the States alone. They are officers of the States exercising functions conferred on them by the Commonwealth.

For the term “officer of the United States” see Robb v. Connolly, 111 U.S. 624. “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.” (United States v. Hartwell, 6 Wall. at p. 393.)

This section does not confer any right of action against officers of the Commonwealth. The High Court is given jurisdiction only; it has to determine in each case, according to the principles of law, whether an action lies. (See Notes, above.) The principles that no action lies against the Crown except by its consent, given by legislation or otherwise, and that no action lies against a judge for anything done in his judicial capacity, are not affected.