
    STEPHEN HULL vs. THE COMMISSIONER OF PATENTS.
    Mandamus.
    >On a rehearing, the doctrine is again affirmed that this court will not compel the Commissioner of Patents hy mandamus to issue a patent even in a case where the examiners-in-chief have rendered a decision in favor of the applicant.
    STATEMENT OP THE CASE.
    This case was heard and decided at the last term of the court, but, one of the judges having intimated a desire to have the case re-argued, it was again heard before a full bench. The facts of the case as set forth on the original hearing are as follows :
    A motion is made in this matter for a mandamus, commanding the Commissioner of Patents to issue a patent to the relator, Stephen Hull. The facts upou which the application is based are stated in the petition, and the return of the Commissioner to be that Stephen Hull, of Poughkeepsie, in the State of New York, on or about the 1st day of March, 1869, filed in the United States Patent-Office an application for a patent for an improvement in harvesters, of which he believed himself the original and first inventor •, that, said application having been twice rejected by the primary examiner, an appeal was taken to the board of examiners-in-chief, as provided by law. That, on or .about the. 28th of August following, notice having been received that the decision of the primary examiner had been overruled and the patent allowed, lie paid into the Patent-Office the final fee of $20, which he considered was all that was -necessary on his part to entitle him to the possession of the said patent, but the. Commissioner of Patents directed the said patent to be withheld, and the case sent back to the board of examiners-in-chief for reconsideration, in view of certain decisions which had then been recently made by himself; that said board did proceed to reconsider their said decision accordingly, but re-affirmed the same, and held that the patent should be allowed. Nevertheless, the said Commissioner still refused to allow the said patent to issue, and on the 14th of April, 1870, made the following order: “ Further action in this case is suspended until the further order of the Commissioner;” and no .notice of the order was ever given to said Hull or his attorneys, nor was its existence known to either.himself or them until within the past three months; and that the “ further order” here contemplated has never been made. He again applied to the present Commissioner of Patents, (Leggett,) requesting him to direct the patent to issue in accordance with the decision of the board of examiners-in-chief above referred to. But the said Commissioner, after having fully considered said application, denied the request therein presented, mainly, as he (Hull) believes, on account of the length of time that had elapsed since the aforesaid order of April 14, 1870, was made, and also on account of the rule that one Commissioner will not review and reverse the rulings of his predecessor, (Fisher,) the former incumbent.
    Believing that the facts above stated leave no discretion with the Commissioner of Patents; that under the circumstances of this case the law definitely prescribes this duty, which is the performance of a mere ministerial act, petitioner asks that a writ of mandamus may issue, under the seal and authority of this honorable court, commanding the said Commissioner of Patents to issue said patent, or to show cause why he declines to do the same, or to do such other acts and things as his official duty shall require, and such as shall be in accordance with the general principles of jurisprudence that are applicable to such cases.
    The return of the Commissioner gives a history of the application of the petitioner from September 25, 1856, when he filed his first application, down to April 14, 1870, when the Commissioner (Fisher) placed the written order on file suspending further proceedings until his further order, but of which no notice was sent to Hull, although it is stated he had actual knowledge of such order. On February 11,1874, relator moved Commissioner Leggett to issue the patent, which he declined to do, for the following reasons:
    “First, my predecessor had evidently deliberately decided that a patent could not be granted, and under the practice in all the Departments, which, if not statutory, has the force of law, I am not at liberty to review his decision; and, second, the delay of nearly four years between the last action of my predecessor and the filing of the present request for reconsideration works abandonment under existing statutes.
    “Upon an examination of the merits of the case, I am inclined to the belief that there are no equities in the case that should lead to any forced construction of the statute in favor of the applicant.”
    The Commissioner, in his return, resists the application for the writ of mandamus upon the following grounds :
    “The respondent denies that, upon the facts of the case, his predecessor was left nothing but a mere ministerial act to perform, viz, to deliver the patent; or that he, as successor, is left in that position; and he says that, inasmuch as a patent never was executed, there remains still a judicial discretion to be exercised by him, in determining whether or not all the conditions prescribed by law were complied with in every respect, so as to authorize him to lawfully execute and deliver the patent.
    “ He denies that the decision of the board of examiners-in-chief, upon the single point appealed to them from the primary examiner, concluded him upon that point, or upon other points which the law makes conditions precedent to the grant of patents and charges him with the duty of determining.
    “ He denies that the writ of mandamus should issue from this honorable court, as petitioned for, to compel him to execute and deliver the patent sought by the relator previous to a regular appeal to the court, and an adjudication in his favor, as provided for in the forty-eighth and fiftieth sections of the patent act, and says that such a remedy, if ever available before the complete execution of a patent, is now barred in this case by the delay of the relator in invoking it.”
    The principal question to be determined upon this state of facts is, whether the court will require the Commissioner of Patents to issue a patent where the board of examiners-in-chief have twice decided in favor of the applicant.
    Charles Mason, for the relator, filed a brief, in addition to his former one, from which are abstracted the following points:
    To show more conclusively that the Commissioner was not expected to interpose in the determination of questions of patentability, except in cases brought regularly before him by appeal, the following considerations are presented :
    I. The legal maxim, inclusio unius est exnlusio alterius, seems clearly applicable here. The law distinctly points out the -duty of the Commissioner in this connection. Can it intend that he has any further and unexpressed duty to perform therein ?
    II. Laws are rules of action. To deserve that name, they must be general. Where the circumstances are alike, the actions prescribed or permitted must be the same. Erratic and fitful interventions, regulated solely by the whim or caprice of any official, would be wholly inconsistent with all just ideas of law. When, therefore, it is shown to be wholly impossible for the Com missioner to revise all the acts of his subordinates relating to the allowance of patents, it will be presumed that it was not intended for him to exercise such revision in any case, except those which are specially brought before him by appeal. He will be officially responsible in these, but in no other cases.
    III. The harmony of the system forbids a ny other intervention by the Commissioner than that just stated. How discordant and absurd to appeal to him from a decision of which he himself is the author; one that he has directed to be made. An appeal to any tribunal, especially when a fee is exacted, presupposes a capability on the part of that tribunal to give the subject an unprejudiced hearing.
    IV. The language of the statute upsets the hypothesis that the Commissioner may control or set at naught the deeisions of the. inferior tribunals, and especially those of the examiners-in-chief. The 10th section directs that board (lto hear and determine upon the validity of the adverse decisions of the examiners.”, How can a matter which is thus determined by that board be still left subject to the caprice or discretion of the Commissioner, or be reversed by him in any other way than through the appeal which is provided by law ?
    Y. Any other construction of the statute would be'wholly incompatible with the intention of the legislative power, as expressed in the debate when this statute was under consideration. The bill was framed and mainly shaped in the House -of Eepresentatives. Nothing can be plainer than that it was intended to render the board of examiners-in-chief wholly independent of the Commissioner in regard to their rules of decision. (See Congressional Globe for 1869-70, part 4, p, 2855.)
    ' It is contended, however, that an act of Congress is to be construed by its own language, and not by the expressed opinions of any of the members of that body. This, as a general rule, is doubtless correct, when the language of the statute is explicit and unmistakable. But when this is otherwise, and especially in cases like the present, where inferential power is claimed by the Commissioner beyond what is set forth in the language of the law, the views publicly expressed in debate may very properly serve as a means of rebutting a contrary inference. This is the well-settled rule in all courts.
    Now, from the debates in this case, it appears that objection having been made to the bill as reported, on the ground that the right of the Commissioner to make rules and regulations for the Patent-Office might be construed as giving him absolute control over the decisions of the examiners-in-chief, the chairman of the committee who reported the bill replied, that it was not intended to give the Commissioner any power to make rules of decision, but only to make rules of practice. This silenced all further objections of like character, and the bill, thus explained, became a law.
    Bo not facts of this kind conclusively show the true intent and meaning of the lawgiver ? And can they not be legitimately used for that purpose ? It is a matter of frequent occurrence in congressional history that the chairman of a committee by whom a bill has been reported is interrogated as to the meaning of some of its provisions, and his answers are always deemed conclusive on those subjects. They are reported in the debates, are sent broadcast all over the country, and satisfy every mind as to the true intent and meaning of' the law. Are they to go for nothing in the courts ?
    Such cannot be the rule of reason on this subject. That-the decisions of the board of examiners-in-chief are not to be controlled by the Commissioner of Patents is, therefore,, placed beyond question. They are final and conclusive, unless reversed on appeal.
    Here, then, is a board which constitutes one of a series of tribunals that are to determine a strictly judicial question,, one which is essentially of the same character as this court may be called upon to consider at any time. The decisions; of that board, if not appealed from, are just as binding and conclusive as would be those of the circuit court of this District in like circumstances. If its conclusion in any case is that a patent ought to be granted, there can be no appeal therefrom. That matter is determined, and the Commissioner is peremptorily commanded to issue the patent. He is not permitted to establish rules of decision which are to guide that board in its action. And yet we hear it urged that its deliberate, and even its reconsidered, determination may be wholly disregarded and set at naught by him. And, what is more, that after a patent has been regularly thus allowed by that board he may intervene, and without condescending to assign a single reason for his conduct, or after giving one-that is wholly frivolous or absurd, he may arbitrarily suspend the case for years, declaring that it shall continue thus suspended until it shall suit his sovereign will and pleasure to order otherwise. Sie volo sic jubeo, stat pro ratione voluntasis substantially the language of his acts which are now under consideration. How does it sound to American ears %
    
    Now, while I fully admit that he is the executive head of the Patent-Office, I just as unequivocally deny that he is its absolute master. No one in this republic will be permitted successfully to proclaim, “ I am the State,” or “ I am thePatentOffice.” The maxim that the king can do no wrong, or that the pope is infallible, has never yet taken root in our political soil. And if claims of that character are ever presented by words or actions, the officer attempting to enforce them will be taught by an independent and fearless judiciary that this is not a personal government; that although he may be at the head of the Department or of a bureau, he will not be allowed to act the tyrant therein, and that his duty or his authority to see that the laws are faithfully executed within his particular province implies that he himself must set an example of obedience to those very laws which are the common masters of us all.
    But it has been said that although the Commissioner may have transcended his authority in this particular, we have not sought the proper remedy. To that subject I will now invite the attention of the court.
    It has been suggested, in the first place, that the writ in this case, if allowable at all, was directed to the wrong officer; that the Secretary of the Interior, being the official superior of the Commissioner, should have been made the respondent in this proceeding. But does not such a train of argument lead to the conclusion that all writs of mandamus should be directed to the President, inasmuch as he is the superior of all executive and administrative officials ?
    Whiteley’s case, which some of your honors will remember, is a precedent for the course we have now taken. The writ in that case was directed to the Commissioner. It was made peremptory by this court; and although that decision was reversed by the higher tribunal, it was not because the writ had been wrongly directed.
    But the statute places this question beyond the reach of controversy. Section 31 of the act declares expressly that, under the circumstances therein stated, the Commissioner shall issue the patent. If he refuses to perform that duty, against whom must the remedy be sought ? The Secretary has not been derelict. It was not made his duty to issue the patent. He had no power to do so. His name being appended thereto as a matter of form and without inquiry, with what propriety would a writ of mandamus be directed to him in such circumstances? If the board of examiners-in-chief should refuse to perform a specific duty, the writ of mandamus should be directed to them, and not to their official superior, the Commissioner.
    
      Again, from another source, a doubt has been expressed, whether the right of appeal does not furnish an appropriate and adequate remedy in the present case. But let it not be forgotten that the last regular decision, which was made as contemplated by the statute, was in favor of the applicant. He had neither the power nor the desire to appeal therefrom. Nor could he appeal from the subsequent order of the Commissioner suspending further action, nor even from his having orally declined to issue the patent.
    The right of appeal is wholly a creature of the statute, and can be exercised only as therein provided. The sole authority given to appeal from the action of the Commissioner is found in section 48 of the act of 1870, and is in these words: “That if such party (except a party to an interference) is dissatisfied with the decision of the Oommisioner, he may appeal to the supreme court sitting in banc.”
    It is to be observed that this language does not authorize any and every party to appeal from any and every decision of the Commissioner with which he may be dissatisfied. It only provides that such party may appeal from the decision. A particular party is here allowed to appeal from a particular decision. The party here designated is the one who has previously appealed from the examiner to the board and from the board to the Commissioner, as is manifest from the context; and the decision to be appealed from is that which has been made in a case that has been twice so appealed.
    In the series of tribunals enumerated in sections 46, 47, and 48, the primary examiner is the only one that has any original jurisdiction in relation to the allowance or rejection of a patent. In such cases the jurisdiction of the board, of the Commissioner, and of the supreme court is strictly of an appellate character. And these appeals must follow in their proper order. Neither of the appellate tribunals above named can be called upon to decide any question of patentability, except such as has passed through the filter of its appointed predecessor. Neither the order of the Commissioner in this case nor his subsequent action could give jurisdiction to this court as an appellate tribunal. There is no remedy by appeal in the present case.
    Finally, it is urged that section 52 of the act of 1870 gives ample remedy by bill in equity in cases of this kind, and thus supersedes the necessity of the writ of mandamus. A more critical examination will, I trust, lead to a different conclusion.
    Does that section contemplate a case like the present ? In declaring that whenever a patent on application is refused for any reason whatever, &c., it clearly points to a case wherein an application is pending which the Commissioner has the legal authority to grant or refuse. He cannot be said tó refuse what has already been lawfully granted by competentauthority. He may perhaps withhold such a patent, but he cannot with any propriety be said to refuse it.
    To illustrate, we suppose this Court should sustain the present application, and order that the patent should issue ; it would be the duty of the clerk to issue the mandate accordingly. But suppose he should determine not to do this, could he be properly said to refuse the writ. And would not that case be strictly parallel to the present. We have applied for a patent. In. the manner provided by law that patent has been allowed. Section 31 of the act peremptorily declares that in such cases the Commissioner shall issue the patent. His duty is just as imperative as would be that of the clerk of this courtin the case just supposed. If he is not superior to the law, he cannot throw himself upon his dignity, and successfully claim exemption from the authority of this court to compel him in a summary way to perform a manifest duty. He has not been asked to grant the patent, but merely to obey the law. He has not, therefore, refused the patent, but has only refused to perform his duty. Suppose he had purloined the patent after it had been duly issued but before it had reached the applicant, would a bill in equity have been the sole or apjrropriate remedy ? Could the patent in such a case be said to have been refused within the meaning of the statute ? Neither could such be any more the case at present. It is not necessary that there should be no other remedy, in order to justify a resort to the writ of mandamus. It is sufficient that there should be none other that is adequate and proper. (Kendall vs. Stockton & Stokes, 12 Pet., 614.) Now, it is well known that poverty is the common lot of inventors, and that proceedings in equity are tedious, perplexing, and expensive. To compel a resort to that remedy under circumstances like the present would, in a large proportion of cases, amount to a total denial of justice. I assure your honors that the relator in this case would abandon his claim at once, if such a rule were enforced against him. He would not have the means of engaging in such controversy. Can a remedy be regarded as adequate and appropriate which is thus beyond the reach of the injured party. Is a Commissioner to be allowed to exercise his tyranny at his discretion over every one who is unprepared to launch forth on the uncertain and unfathomable sea of a proceeding in equity.
    Nor is it sufficient that a remedy should be effeetualin order that it should be considered suitable and appropriate to the cure of a pending mischief. A man may kill gnats with a beetle. That instrument would certainly prove effectual in an individual case, but would it be adapted to such a use. There must be a reasonable correspondence between the end sought and the means called into execution. So, also, if the mischief is one that justly requires a prompt remedy, a proceeding that will naturally extend through years of perplexing delay, though ultimately effectual, is not adapted to the emergency. When, therefore, a public officer refuses to perform a manifest ministerial duty, and when he cannot even give a plausible pretext for his delinquency, is an aggrieved party to be turned over to a tedious, expensive, and inappropriate remedy, while a writ of mandamus is exactly calculated to offer him that ready relief to which he is entitled ? And, to show that the Commissioner has no such plausible pretext in the present case, I refer the court to the frivolous reasons set forth in his return to the writ of mandamus. The first of these is, that one Commissioner will not revise and reverse a final decision of his predecessor. But the predecessor in this case had made no final decision. He had altogether refrained from doing so, by ruling that further action should be suspended until his further order. Can it be plausibly pretended that such suspension, until a further order was made, could justly prevent the successor from making that further order? Must he not finish what is thus left incomplete?
    The only other reason set forth in the return for withholding the patent is that a previous application had been made for. the same thing, and that some three or four years had elapsed between the withdrawal of that application and the filing of a new one. There had also been two or three other withdrawals and refilings in succession, but the intervals between such withdrawals and refilings had never exceeded a few days in any one case, and were not made .a ground of objection in the return of the Commissioner. Now, while this application was thus pending the act of 1870 had been passed, declaring, in effect, that such objections were not to be entertained. The case of Joshua Gray had -also been decided by this court, wherein a patent was allowed in a parallel case, and in which more than twelve years had elapsed between the withdrawal of the first application and „he filing of the new one; and, finally, the patent of Joseph 'T. Woodbury had been allowed by the Commissioner himself, ;n which the first application had lain as lifeless as an Egyptian mummy for nearly nineteen years after its withdrawal •and before the filing of its successor. To make such a return ■to the writ of mandamus is to trifle with this court. At least •it is a cool way of intimating that the court is overstepping its proper authority. It is tantamount to saying, “ I control this office as I please, and am not to be called upon to render any reason for the manner in which I see proper to do this; take the reason I give, and be satisfied.” Will this court indulge in hair-splitting niceties as to whether in such a case there is some out-of-the-way method of applying a different remedy from that we are now seeking, and which is so manifestly proper and effectual?
    But there is another view of this matter, which renders the argument in favor of the course we have taken still more conclusive. A bill in equity, however successfully prosecuted, would leave us no better off than we were before. If this court itself could issue the patent at once, the case would be somewhat different. But after all the trouble, expense, and delay incident to the equity proceeding; after the employment of counsel, the notice to adverse parties, the taking of testimony, the postponements from time to time, and all the other expedients by which associated wealth for selfish purposes would well know how to tantalize and harass the meriit or ion a inventor in such a case, what at best will be the result? Why, says the law, “such adjudication, if it be in favor of the right of applicant, shall authorize the Commissioner to issue such patent,” &c. All that is accomplished, therefore, by this equity proceeding is to authorize the Commissioner to issue such patent. Will he do so; and, if not, what next? Must another bill in equity be resorted to for that purpose?
    It will be remembered that section 31 of the act of 1870 declares in express terms that in a certain contingency the Commissioner shall issue a patent. That contingency has long-since happened in' this case; but the Commissioner, without any plausible excuse, has refused to obey the law. If we file a bill in equity, and then swing all around the judicial circle, it might prove an amusement for children, or a successful expedient to kill time with those of maturer years, on whose hands the passing days and months and years would otherwise hang heavily, but what real advantage would have beet thereby gained? A positive command to issue the patent would have been exchanged for a mere authority to do so: Will the Commissioner avail himself of the permission when he has disregarded the requirement ? And even if the authority conferred by this section 52 should be held to be tanta ' mount to a command, we should, at the most, at the end of this proceeding, only have arrived at the point from whence we started. If it be necessary now to resort to a bill in equity, it would be equally so then.
    A feeling of indignation might, it is true, prompt to the allowance of the writ of mandamus under the circumstances, just supposed; but ought not that feeling to be equally evinced now ? It is the violated law, and not offended personal dignity, that calls forth the calm but emphatic indignation of the judicial mind in such cases. And the majesty of the law is just as essentially offended by a willful disregard of the authority of the lowest as of the highest tribunal. If the second bill in equity would not be necessary, the first ought not to be so.
    Having thus presented our views in relation, to the several questions presented in this case, the whole matter is respectfully submitted to the judgment of this honorable court.
   Mr. Justice Humphreys

delivered the opinion of the court:

This case has been reheard, and the majority of the court find no reason to alter the judgment of the last term.

The petitioner filed his application for the writ of mandamus, requiring the Commissioner to issue a patent for “an improvement in harvesters.” The Patent-Office is attached to the Department of the Interior, and the Commissioner of Patents, under the direction of the Secretary of the Interior, is required to superintend or perform all duties respecting the granting and issuing of patents directed by law. The Commissioner of Patents and three examiners-in-chief are nominated and appointed by the President and Senate. (Section 470.) The language of section 482 is as follows: “The examiners-in-chief shall be persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the appellant, to revise and determine upon the validity of the adverse decisions of examiners upon applications for patents, and for re-issues of patents,, and in interference cases; and, when required by the Commissioner, they shall hear and report upon claims for extensions, and perform such other like duties as he may assign them.” Section 4904 authorizes an appeal to the board of examiners in-chief and the Commissioner in interference bases. Section 4909 provides for an appeal to the board of examiners-in-chief in three classes of cases : the application originally, the application for a re-issue, and in interference. Section 4910 provides for an appeal from the decision of the examiners-in-chief to the Commissioner in person. These are the only sections making any provision for the action of the board of examiners-in-chief.

In the case before us, the relator, Hull,- states that his application was twice rejected by the primary examiner, whereupon he appealed to the board of examiners-in-chief, and they determined that he was entitled to a patent; that, in August, 1869, he paid into the office $20, the fee required by law ; that, notwithstanding this, the Commissioner of Patents refused to grant the patent, and sent the matter back to the examiners-in-chief, who re-affirmed their opinion, or decision, that the patent should be allowed; that, on April 14, 1870, the Commissioner issued the following: “Further action in this case is suspended until the further order of the Commissioner.” The relator further states that he has applied to the Commissioner to issue the patent, who, “after having fully considered the application, denied the request,” &c. It is contended by the relator that the Commissioner is bound to issue the patent, because the board of chief examiners has pronounced that it should be done; that his duty is a mere ministerial one, aud, he having declined to perform that duty, this court must order him to sign the patent. That he is without remedy except this order.

Section 4911 provides that if any applicant for a patent is disatisñed with the decision of the Commissioner, he may appeal to this court. Section 4914 provides for the hearing the appeal and determining the same. No appeal having been taken in this matter, it is not necessary to decide whether it is a proper case for an appeal; for, apart from that consideration, the question is presented whether a mandamus can be issued 1 On an appeal, we are instructed by the statute what to try. The relator asks this court to order the Commissioner to issue a patent before placing before us in a regular, judicial mode the evidence that one ought to issue. He contends that because the chief examiners have determined that a patent ought to issue, therefore the Commissioner must perform the clerical, ministerial act of doing so. Section 481 is in the following language: “The Commissioner of Patents, under the direction of the Secretary of the Interior, shall superintend or perform all duties respecting the granting and issuing of patents directed by law ; and he shall have charge of all books, records, papers, models, machines, and other things belonging to the Patent-Office.” The law is explicit and mandatory that, if certain things exist, a patent for certain objects shall be granted. The law is alike explicit who is to determine if these facts exist. The law designates the judge who is to superintend, and he may even perform all the work. Certain officers have been assigned — paid out of the Treasury — to whom he can intrust examinations. Even all this the Commissioner does under the direction of the Secretary of the Interior.

In the very inception of a matter for a patent the Cornmismissioner controls the application by express enactment, and he is the officer to cause an examination to be made, and could even do it himself. (Section 4893.) “ The Commissioner of Patents, subject to the approval of the Secretary of the Interior, may from time to time establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent-Office.” (Section 483.) We are not appealed to to determine upon the facts and evidences in the application whether the relator is entitled to a patent for an invention or discovery of a new and useful improvement of havesters, for we have not that case before us. The position of the relator is that as the board of examiners-in-chief has decided that he is entitled to a patent, therefore this court must order the Commissioner to issue the patent. If the whole case was before us, we might find that the primary examiner and the Commissioner were right and the board wrong, or vice versa. The final judgment is the action of the Commissioner. That is not appealed from, nor are its merits presented to us. We are asked to decide that he is not entitled to any judgment, but that his duties are merely clerical and ministerial. This would be an unfair interpretation of the powers, attitude, and design of a very important officer of a highly important office of a prominent Department for the orderly regulation of the interests of the country. As an appellate tribunal, ¡ve certainly have jurisdiction over the judgments of the Commissioner, but we must have his judgments before us, and the party seeking to reverse must appeal to us in the proper manner.

Section 4915 may apply to cases of applicants residing in a,ny of the States whose claims have been rejected both by the Commissioner and this court, also to cases rejected by the Commissioner in interference applications.

When this ease was heard at the last term of this court the members thereof were divided in opinion. A bare majority were of the opinion that we could not grant the writ. I thought that this was ground sufficient to raise a doubt; and, under the rules of the organization of a tribunal for the proper adjustment of controversies, this fact being made to appear, we had the right and organic power to call upon counsel learned and experienced in the law to come before us the second time and present arguments why the judgment should be reconsiderd. We have reconsidered our former determination. Counsel have been heard at length a second time, after full opportunity for preparation. This case presented facts somewhat novel on the first impression for the application of well-known principles. The majority of the court is of the opinion that this is not a case proper for a mandamus to issue,• and, so far as I am concerned, I am much better satisfied of the correctness of this conclusion than on former hearings. Each case must depend upon the facts thereof, and we cannot undertake to require other Departments to do that which in their judgment they ought not to do, unless we are in the full possession of all the facts and merits of any application. An appeal ordinarily brings before a eourt the entire merits of a cause, and action may be had understa.ndingly.

Mandamus refused.

Cartter Oh. J. and MaoArthur, J., dissenting.  