
    The State ex rel. The Continental Insurance Company vs. Doyle, Secretary of State.
    PoReign Insurance Company. (1) When revocation of license imperative. (2) Legal powers of agent appointed to receive service of process. Mandamus: (3) Writ granted ivithout notice to insurance company. (i) When not discretionary.
    
    1. Wlrere an action commenced in a court of tins state, against a foreign insurance company, is in fact removed to a federal court, by petition for that purpose, in the name of such corporation, presented to the state court by its attorney of record, the statute (sec. 1, ch. 64 of 1872) makes it the imperative duty of the secretary of state to revoke the company’s license; and this court must enforce that duty, if neglected, by mandamus, even though it should appear that such removal was procured by a local agent or officer of the corporation not expressly authorized to apply for it, and without the knowledge and against the wishes of the principal officers of such corporation.
    2. The attorney of a foreign insurance company appointed in this state pursuant to sec. 22, ch. 56 of 1870, stands here, for all the purposes of his appointment, for the corporation, and possessed (as between him and the state), of all its power in the disposition of process and control of the actions instituted thereby.
    3. As the statute requires the license of a foreign insurance company, upon violation of its conditions, to be revoked without notice to the company, a mandamus to compel such revocation will be granted without requiring the company to be made a party to the suit.
    4. Courts have discretion in issuing writs of mandamus in aid of private right, but not where the writ is invoked on behalf of the state, as a pure prerogative writ, in matters puhlici juris.
    
    APPLICATION for a Momdamtts.
    
    After tlie license of the Contmental Instvranee Company of the city of New York, to transact business in this state, had been revoked hy the secretary of state of Wisconsin, in accordance with the order made in the foregoing action of The State ex rel. Drake v. Doyle, that company presented a petition to this court for a writ of memdarrms, commanding said secretary of state to cancel or annul the order of revocation, and that the petitioner might he restored to all its rights and authority to transact business in this state which it possessed before such revocation. The petition stated, in substance, as grounds for such relief: 1. That the removal of the action of Drake against said company, from .the- Winnebago county circuit court to the United States circuit court for,the eastern district of Wisconsin, mentioned above (p. 178), was not authorized or approved by the petitioner, and the fact of such removal was not brought to the knowledge of the superintendent of the western department, whose office is in Chicago, nor to the knowledge of any officer of said company connected with the principal office in the city of- .New York, until long after such action had been so removed, and had been settled and discontinued, nor until after the application had been made to this court for a mandamus to compel the secretary of state to revoke the petitioner’s license. 2. That Mr. Hathaway, the petitioner’s agent in this state appointed pursuant to sec. 22, ch. 56 of 1870, and on whom process was served in said action of Drake against this petitioner, was not an attorney at law; that he employed Rinches, Lynde & Miller, attorneys at law, to defend the action, and that on the 27th of March, 1875, he signed the petitioner’s-name to a petition and bond to remove said action from the state to the federal court; but that his act in that regard was not authorized, and was never sanctioned or approved by the petitioner, and was wholly without its knowledge, and was not its act, but was wholly nugatory and void. 3. That the above - facts had not been made to appear in the proceedings upon Drake’s application for the mandamus granted by this court. 4. That the petitioner had more than one hundred and eighty local agents in this state engaged in taking risks upon property therein; that the risks taken by the petitioner in this, state for the year 1875 amounted to $9,253,858; that the revocation of its license had caused great apprehension among its policyholders as to the validity of their policies; that the establishment of the petitioner’s business had been attended with much expense and trouble, which would be largely lost if it were now forced to cease business in this state; and that the revocation of its license had already caused much loss, damage and inconvenience both to it and to the people of the state accustomed to do business with it.
    Attached to the petition are affidavits of Iiiram H. Lam-port and Benjamin C. Townsend, both of the city of New York, and Abram Williams, of Chicago. Mr. Lamport’s affidavit states that George T. Hope is the president, the affiant the vice-president, and Cyrus Peck the secretary, of said insurance company; that Benjamin 0. Townsend is its secretary in charge of its agency department, Abram M. ICir-by its secretary in charge of the local department, and Charles II. Dutcher its secretary in charge of the Brooklyn department; that the company “has no other officers under its charter;” and that its affairs are regulated by its officers, who are elected and appointed by the board of directors. It is further stated that, Mr. Hope being temporarily absent from the city of New York, the affiant was the principal officer of the company in the city when such affidavit was made; that he had communicated by letter with Mr. Hope, and verbally with all the other officers, concerning the matters to which the affidavit relates, and makes the statement contained in the affidavit in behalf of himself, and “ can say positively that it is true.” The affidavit is long and minute, but its essential statements are these: “None of the officers of the Continental Inswrance Company had any accurate knowledge of the proceedings in the matter above entitled, or in the suit in the circuit court for Winnebago county, or the suit in the United States circuit court for the western district of Wisconsin, which are referred to in and connected with this proceeding, until yesterday, when our counsel in New York for the first time received copies of the ‘papers herein, which showed what proceedings had been taken on the relation of Mr. Drake to have the license of the .company revoked by the state officers of Wisconsin, and also showed what return was made by the secretary of state of Wisconsin in those proceedings. None of the officers of the company had any knowledge whatever that any proceeding had been taken, or was intended, to remove the suit commenced by Mr. Drake in the circuit court of Winnebago county to the- United States circuit court for the eastern district of Wisconsin; or that any bill had been filed in behalf of the company in the United States circuit court for the western district of Wisconsin, or elsewhere, or that it was intended to file such bill, for the purpose of restraining the secretary of ■ the state of Wisconsin, or for any other purpose, until long after those proceedings were taken. None of the officers of the company knew that the said A. J. Drake had petitioned for a manclmvus in this proceeding, or was intending to do so, until long after his petition was filed. None of the officers of the company knew, until after it was made, that a return had been made, purporting to be in behalf of said company, to the alternative writ of mandamus issued herein; nor did any of them know the contents of such return until yesterday; nor did any of them know until this day, when I was so advised by the company’s counsel in New York, that the facts which I am about to state should have been stated in the form of a return to said alternative writ.- The only information that the company or its officers in New York have received of the proceedings in the matter above entitled, have been by letter, and have been but recently received; and the officers* of the company have supposed, until this day, that they would have opportunity, should it become necessary, to state all the facts relevant to the matter, and to have a bearing thereupon, before any decision would be made; nor have they been aware, until after the return was filed and ai’gument had upon the demurrer thereto,'how far this proceeding had progressed.
    “ On the 21st day of August, 1876,1 received notice from the secretary of state of Wisconsin, that the license of the company to do business in Wisconsin had been revoked. This action was a surprise to me, as well as to all the other officers of the company. I have since examined the correspondence and records of the company in New York, to ascertain how far we had received notice of any of the proceedings above mentioned, or what communications we had received from which we ought to have derived notice; and, so far as I can ascertain, the following are the facts, and I believe they are all the facts that exist. After the fire under which A. J. Drake asserted a claim for loss against this company, a notice was received at the New York office stating that such claim was made. The communication was thereupon referred to J. B. Bennett, who was the agent of the company at Chicago in charge of its western agencies, and he was requested to attend to the same. The next information received at the New York office was from its adjuster, Mr. Hillyer, at Waupun, Wisconsin, who stated that he had examined the claim and had-been unable to agree with the claimant, and that a suit had been commenced by Mr. Drake as claimant.
    The next information that came to any of the officers of the company was by the receipt of a draft drawn upon the company by said Hillyer, its adjuster, which the company accepted, and which was paid. The officers of the company inferred from said draft that the said claim had been finally settled, and wrote to ascertain if such was the fact, and to ask for a copy of the order discontinuing the suit of Drake. Thereupon the company was informed that the suit had been settled and the company’s officers supposed that that was an end of tbe matter, and that wbat bad been brought to tbeir knowledge, as above stated, embraced substantially all the transactions between the company and Mr. Drake. The next that the officers of the company heard of 'the matter was, that Mr. Drake had obtained the alternative writ of mandamus above referred to, and that the matter was .receiving proper attention. Since then, the officers of the company have received no definite intelligence in reference to the matter, until after the argument of the demurrer to the return made to said writ, and have supposed, so far as their attention has been called to the matter, or they have given it any thought, that they would be notified in proper time, and called upon to state the facts within their knowledge, and allowed opportunity to be heard, should that be thought important.
    “ I have learned, since I received the notice that the company’s license was revoked, as mentioned above, that after Mr. Drake commenced his suit in the circuit court for "Winnebago county, the proceedings which were taken to remove that suit to the circuit court of the United States for the eastern district of Wisconsin, were advised by Mr. Bennett, at that time the company’s superintendent of agencies; and that the bill filed in the United States circuit court for the western district of Wisconsin for the purpose of- obtaining an injunction and for other relief, and the proceedings taken thereunder, were directed either by Mr. Hillyer, or. by Mr. Bennett, the beforementioned company’s agent at Chicago.
    “ I have also found that Mr. Bennett, after the proceeding was taken to remove Drake’s suit to the United States court, wrote a letter to the company at New York, stating that that proceeding had been taken. That letter,.however, never came to the knowledge of any officer of the company. The correspondence of the company received at'New York is very large, and, as it comes in each morning, is' distributed among the various clerks, so that each may attend ,to that part which belongs to his department. The envelopes from our different agencies generally indicate on tbe outside tbe nature of tbe communication. Tbe clerks to wbom tbe correspondence is distributed, open tbe same; and it is tbeir'dutyto refer all matters of importance to one of tbe officers of tbe company, and to attend themselves to tbe ordinary matters of routine. Tbe letter above referred to was, as it now appears, banded to tbe loss clerk in the company’s New York office, and be, supposing that tbe course which bad been advised by tbe counsel retained by tbe company’s agents in tbe west would be unobjectionable, did not bring tbe letter to tbe notice of any of tbe company’s officers.
    “ I do not intend to say that none of tbe company’s officers ever knew until after tbe license to do business in Wisconsin was revoked, that proceedings bad been taken to remove Drake’s case to tbe United States court, or that a bill bad been filed in another branch of tbe United States court to obtain an injunction; but I do mean to say that none of tbe company’s officers knew that either of these proceedings bad been taken until long after they were taken, and it was too late to recall them; and that none of them knew until since tbe license was revoked, by what authority those proceedings had been taken; and I mean to say that tbe knowledge of tbe company’s officers was indefinite, and was to the effect that proceedings, unauthorized by themselves, bad been taken, and that they would at tbe proper time have full opportunity to put themselves right upon tbe record, and that meantime all was being done that- could properly be done to rectify mistakes.
    “ I do not intend to assert, as a matter of law, that none of tbe agents of tbe company who have directed tbe proceedings that I have referred to above, bad any authority in tbe premises. That is a question I respectfully submit to the court for decision. I do mean to say that none of tbe officers of tbe company ever directed, or in any way authorized, any of tbe .agents above mentioned to take proceedings to remove the suit brought by Drake into the United States" court, or the proceeding which was taken in the United States court to obtain an injunction; or employed counsel for that purpose; or knew what counsel were employed or attending to the same, until long after they had been engaged- by the agents in the west.
    “ And I further state that no contract or communication between the company or its officers and the said agents, in terms authorized the latter to take any such proceedings. If they had any such authority, it must be because the law implied it.
    “ My understanding of the matter is, that none have authority to exercise any corporate powers of the company, save its officers, under advice of its board of directors; and that whatever authority its officers may be able to delegate, must be expressly delegated.
    “ I must state, however, that our adjusters and general agents are usually allowed to exercise a wide discretion, and that the business of the company is so extended, and is of such a nature, and its agents are so carefully selected, that the company does not, except in extreme cases, interfere with the exercise of that discretion; and from what I-have already learned in reference to this case, and have stated, I have no doubt that our agents in the west supposed they were acting within the limits of their authority.
    “ My own opinion, and that of the other officers of the company, is, that the agents were mistaken} and in fact were assuming to exercise an authority that was not conferred upon them.
    “ I can say, and do say positively,- 'that had the fact been brought to the notice of any of the company’s officers, that it was proposed to remove the suit brought by Drake into the United States court, they would have disapproved and forbidden such action, and would have directed that the claim should be paid, or should be contested in the state court where Mr. Drake had brought his suit. Eor myself, and on behalf of all tbe officers of tbe company, I positively disclaim any intention on bebalf of tbe company to violate tbe terms of tbe agreement with reference to wbicb tbe state of Wisconsin licensed it to conduct business witbin that state, or to violate any law of the state of Wisconsin while exercising privileges under its laws.
    
      “ I further state, for myself and in bebalf of all tbe officers of said company, that so far as it is possible to restore Mr. Drake to tbe position be was in before tbe proceeding was taken to remove tbe suit to tbe United States court, tbe company is prepared to place him in that position; and if be now desires to return to tbe company or pay into court tbe sum that be has received on effecting a settlement of bis claim, and to continue bis suit in tbe circuit court for Winnebago county, or in any other court of tbe state of Wisconsin, tbe company will accede to such a proposition, and will enter its appearance in any such court.
    
      “ In making tbe above statement, wherever I have spoken for tbe officers of tbe company, I have intended to speak for tbe company, but have avoided using tbe word ‘ company’ in some instances, merely that I might not be deemed to have asserted that tbe acts of tbe agents were not tbe acts of tbe company, in case tbe court held as matter of law that tbe company was bound by such acts.”
    Mr. Townsend’s affidavit is confirmatory of Mr. Lamport’s. That of Mr. Williams states that be has been, since August, 1874, the superintendent of tbe western department of said petitioning company; that as such be has bad tbe general control and direction of tbe company’s business in that department, wbicb includes this state, and has bad authority to decide all questions arising in said department in tbe usual and ordinary course of business; but that it is bis duty, under bis appointment and instructions, to submit all new and unusual questions wbicb arise in tbe conduct of tbe business of tbe company, and all questions of extraordinary difficulty or importance, to the principal office of said company, which is located in the city of New York, for special instructions;' and that it has been affiant’s practice invariably so to do; that he never directed, sanctioned-or approved of the removal of the action of Drake against the petitioner .from the state court in which it was brought, to the United States court; that he had no knowledge or information of such removal until long after the action had been settled and discontinued, when he was notified by the secretary of state of this state of the application made to the latter for a revocation of the petitioner’s license; that when affiant then learned for the first time of the removal of said cause, he disapproved. of the same, and has never sanctioned, ratified or confirmed such removal; that, as affiant is informed and believes, said action was so removed wholly by the local agents and attorneys of said company in the state of "Wisconsin, without the sanction or approval, and without the knowledge, of said company, or the board of directors thereof, or any officer or committee of said company having any authority to act for the company in the premises; that such act of removal was wholly outside of the scope of the employment and of the duties and business which the local agents and attorneys of said company in this state were authorized to perform, and outside of the usual business and duties which they did in fact transact and perform. The affidavit then states that on the 14th of July, 1875, affiant received information that their local agent in this state, and the attorneys by him employed, had removed, or were about to remove, from a circuit court of this state to the federal court, an action brought by one Wright against the petitioner for loss sustained on a policy insuring property in this state; and that said affiant immediately, by telegraph and letter, directed the cause to be withdrawn from the federal court, and the claim of said Wright was thereupon at-once paid in full and the cause discontinued. With this exception, the affiant states, no action brought in this state upon a policy of insurance of bis company, other than that upon the Drake policy,, has ever been removed from a state court to a United States court, since the enactment of a law forbidding such removal.
    
      Wm. P. Lynde, for the relator. [No brief on file.]
    
      
      .The affidavits of Mr. Lamport and Mr. Townsend are entitled in the case of State ex rel. Drake v. Doyle (supra, p. 175), and the jurat in each of them is dated September 1, 1875; and it appears to have been the intention of the affiants to have such affidavits used in connection with the return of the secretary of state to the peremptory writ of mandamus in that case. That writ was by the order of the court made returnable on the 5th of September; but was in fact returned on the 24th of August.
    
   Ryan, C. J.

In granting a peremptory mandamus to the secretary of state to revoke the license of the relator in this case (State ex rel. Drake v. Doyle, ante, 175), we spoke with just severity of the utter mala fides of a foreign insurance company coming here under a voluntary and advantageous license of the state, upon condition not to harass citizens of the state dealing with it, by removing actions on its policies from the state court of the vicinage to distant and expensive federal courts. The papers submitted to us in support of the present application go far to satisfy us that the removal of the action by the present relator, for which we granted the writ to revoke its license, was without the knowledge or sanction of its principal officers in New York. The affidavit of Mr. Lamport, vice-president of the company, appears to be very frank and manly, and to exonerate the New York officers of the company from all personal responsibility for the removal, or for the scandalous breach of faith involved in it. We cannot but regard the petition of the relator, repudiating the removal, as a bona fide submission to the authority of the state, and to the condition imposed upon the relator’s license to do business in it.

The supremacy of the state law over state officers, and over foreign corporations licensed under it, has been sufficiently vindicated, and foreign corporations sufficiently warned of the danger of playing fast and loose with their faith to the state. And we heard the present application with a strong desire of relieving the relator from further loss by the revocation of its license. We regret that we are able to see no way of doing so, consistent with our duty.

I. This application was put upon the ground that the removal of tbe action from tbe state to tbe federal court, was caused by tbe attorney of tbf? insurance company, appointed under sec. 22 of cb. 56 of 1870, without tbe knowledge and against tbe wishes of all tbe chief officers of tbe company in New York; that bis action in tbe premises was outside of bis authority, and did not bind tbe corporation. To this position there are two sufficient answers:

First. Tbe petition to remove tile cause was tbe petition of tbe corporation, running in its name,- and presented to tbe state court on its behalf, by tbe attorneys appearing for it of record. Tbe court in which it was presented could not disregard it for any latent want of authority of tbe officer verifying it. It was effectual to remove tbe cause, and tbe cause was in fact removed under it. Sec. 1, cb. 64 of 1872, makes it the imperative duty of tbe secretary of state to revoke tbe license of a foreign insurance company which shall make such application to remove an action. And tbe duty of tbe secretary to do so rests, not upon tbe authority or abuse of authority of tbe officer of tbe corporation causing tbe application to be made, but upon tbe actual application to remove tbe action.

And this was not only wise, but necessary. Eor an agent or officer of tbe corporation, not expressly authorized to do so, might well, as this ease proves, make an effectual application to remove tbe cause, and remove it beyond recall, while tbe corporation might repudiate bis act and claim its insufficiency to justify tbe revocation of its license. Tbe actual removal is tbe evil at wlricb tbe statute aims. And.no foreign insurance company could be tolerated in suffering tbe removal of a cause defacto by its officer or agent, and in then claiming immunity de jwre from revocation of its license, for tbe officer’s or agent’s want of authority. Tbe authority which is adequate. for tbe removal of a cause, is adequate to work a revocation of tbe license.

Tbe local agents and attorneys of foreign insurance companies licensed bere, bave tbe actual power to remove causes from state to federal courts. And it is not enough for the corporation to be silent, not to instruct their local representatives to remove causes. They owe it as a duty to the state to instruct them not to remove causes. If they choose to run that risk, at the discretion of their local agents or attorneys, they ipso facto run corresponding risk of revocation of their licenses. It will not do that they stand indifferent between their duty to the state and the discretion of their local agents. If will not do, in complying with their obligations to the state, that their principal officers, a thousand miles away, with little knowledge or control of litigation here, act bona fide; they must see to it that their local representatives, with all practical control of litigation here, are prohibited from acting mala fide.

Second. The statute requires that foreign insurance companies taking license here, “ shall first appoint an attorney in this state, on whom process of law can be served; ” “ and any process issued, etc., in this state, and served upon such attorney, etc., shall be deemed a sufficient service of process upon such company.” It was the attorney so appointed by the relator who made application for the corporation to remove and removed the action, for which the relator’s license was revoked.

As between the insurance company and the state, it appears to us quite manifest that, as to all process of state courts served upon him, the attorney in fact so appointed stands here, for the purposes of his appointment, for the corporation, and possessed of all its power in the disposition of process against it, served upon him. He may have general or special instructions from the corporation, what course to take in each action or in all actions. The state is not privy to these, and has no concern with them. The state requires the appointment of an attorney in fact, in whom the corporation can confide, in place of the corporation itself, for the purposes of actions against it. It may be presumed that the attorney will act for tbe interest and according to tbe instruction of tbe corporation. But as between bim and tbe state, as between bim and suitors bere against tbe corporation, he possesses tbe power of tbe corporation over tbe process served upon bim; tbe same power that be has over process against himself personally. He represents, pro hac vice, tbe corporation with all its power in tbe premises. And bis disposition of tbe process served upon bim, bis control of the action instituted by tbe process, is tbe disposition, tlie control, of tbe corporation itself. Tbe ideal being of tbe corporation can act only through its servants; and as between it and tbe state, its statutory attorney is its sole servant in tbe premises, vested with its whole power. As between tbe corporation and tbe state, be is, quoad hoc, tbe corporation itself.

This is no new principle in this court. It is the same on which the judgments in Bass v. Railway Co., 36 Wis., 450, and Craker v. Railway Co., id., 657, went; and is indeed the same on which Railroad Co. v. Finney, 10 Wis., 388, and other cases in this court, and Weed v. Railway Co., 17 N. Y., 362, and other cases elsewhere, really rest. In Bass v. Railway Co., it is said of officers of railroad trains: “We feel warranted by principle and authority to bold that, in the enforcement of order on the train, and in the execution of reasonable regulations for the safety and comfort of the passengers, and for the security of the train, the authority of these officers, exercised upon the responsibility of the corporations, must be obeyed by passengers; and that forcible resistance cannot be tolerated. They act on the peril of the corporations, and their own. Indeed, as that fictitious entity, the corporation, can act only through natural persons, its officers and servants, and as it of necessity commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and comfort in transitu, under conditions of such peril and subordination, we are disposed to bold that the whole power and authority of the corporation, jpro Jiao vice, is rested in these officers; and that, as to passengers on board, they are to be considered as the corporation itself; and that the consequent authority and responsibility are not generally to be straitened or impaired by any arrangement between the corporation and the officers; the corporation being responsible for the acts of the officers in the conduct and government of the train.” This is repeated and enforced in Craker v. Railway Co., where it is said that, in respect of local duties of a corporation, it is not represented by directors in a foreign board room, or by officers in distant offices, but by the very servant or agent appointed in respect of such duties, with power to fulfill them. And it is the settled law of this court, that where a corporation appoints an agent with power and control over a function or duty of the corporation, the agént is so far the representative of the corporation; his action is the action of the corporation, for which the corporation is responsible, however faithless to his duty the agent may be. Acting within the scope of his agency, he binds the corporation, though he acts in disobedience of orders or betrays the trust reposed in him by his superiors. In this case, the disposition by the agent of the process served upon him, was, as to the state, the disposition of the corporation; though, as between him and the corporation, he may have acted without the sanction and against the wishes of his superior officers.

In either view, the relator cannot be held irresponsible for the removal of the cause. It must be held for the act of its subordinate agent, within the scope of his authority, even when unsanctioned and disapproved by its board of directors and other principal officers.

II. It was urged that the relator was not a party to the proceeding in which the mandarrms was issued to revolee its license; and is therefore not bound by it.

This is only a new way of putting the objection urged against the mandarrms itself, that the license could not be revoked without notice. "We held there that the license could be revoked ex parte, by tbe very terms on wbieb it was granted; that tbe relator ran tbe risk of summary revocation ex parte, and could not object to tbe summary revocation, subject to wbieb it accepted tbe voluntary license of tbe state. Upon condition broken, it was tbe peremptory duty of tbe secretary of state to bave revoked tbe license, without notice. And tbe mandamus only enforced tbe secretary’s duty of summarily revoking tbe relator’s license, without notice to it. Having no right to notice of tbe revocation, it is difficult to see bow tbe relator was entitled to be a party to tbe mandamus enforcing tbe revocation, and indeed bow it could be a party. Tbe court, without notice, commanded tbe secretary merely to do what it was bis duty to bave done, without notice.

"We lay no stress upon tbe fact that tbe relator’s own counsel was beard for tbe secretary in opposition to tbe mandamus. But it is obvious from what has been said, that, could it bave been, and bad it been, a party to tbe mandanvus proceeding, nothing which it now sets up would bave availed it against tbe peremptory writ.

III. Under tbe circumstances disclosed by this application, we are very reluctant to bold tbe relator to tbe strict consequences of its own act. But, having on full consideration issued a mandamus to tbe secretary to perform bis statutory duty, it would be a strange anomaly to give way now to appeals to a supposed equitable discretion, and to send out another writ to that officer to undo tbe duty which be has already done by command of tbe court.

That is quite clearly out of tbe question. And we therefore considered tbe effect of opening tbe judgment for tbe mandamus, still within our control; and of permitting a further return to tbe alternative writ, setting up tbe facts now presented by way of appeal to our discretion. But brief reflection disclosed tbe inutility of that course.

It is true, that courts bave discretion in issuing writs of mandamus merely in aid of private riglit. But when the writ is invoiced on behalf of the state, as a pure prerogative writ, in matters publiei juris, there is no discretion. The writ goes ex debito justitice, without discretion. Tapping, 287; 35 Wis., 594. And it would be worse than idle to open a judgment which we still approve, to consider matters which could not affect it. Submitting to the state law and to its interpretation by the state court, in default only by an act of its local agent, disavowed by its principal officers, the relator has a strong claim to the mercy of the state. But it is not for us, in such a case, to make justice give way to mercy. That discretion rests only in the legislature, to whose lenient consideration we commend the relator.

By the Qowt. — The motion for an alternative writ is denied, with costs against the relator.  