Nor, again assuming the Secretary of State is under the alleged duty-has the relator any other remedy than by the writ of mandamus to enforce the performance of that duty. The "other remedy," the existence of which will oust-or rather prevent the invocation of-jurisdiction by mandamus, must be equally convenient, beneficial and effective as mandamus. Raish v. Board of Education, 81 Cal. 542; Overseers v. Overseers, 82 Pa. St. 275. It must be a remedy which will place the relator in statu quo, that is, in the same position he would have been had the duty been performed. Etheridge v. Hall, 7 Port. 47. Indeed, it must be more than this: it must be a remedy which itself enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance. Sessions & Leary v. Boykin, 78 Ala. 328; 2 Spelling Extra Relief, § 1375; Merrill, Mandamus, § 53. Hence it is that while mandamus will not lie to enforce a duty which may be coerced by the ordinary civil actions at law, as where the duty is merely to pay money, or to deliver property-it does lie whenever such actions cannot be availed of to the specific performance of the official act which the relator is entitled to have performed-as where a disbursing officer refuses to draw a warrant it is his duty to draw, in which case an action for damages, while it would eventually save the relator harmless, would not coerce the discharge of the specific duty. And so it is here: This relator might defend against an indictment for carrying on his business without paying the additional license tax intended to be imposed by this alleged statute, or, paying it upon compulsion, he might recover back the amount so paid, upon showing the falsifications of the journal and, of consequence, the invalidity of the supposed enactment; but neither of these remedies would be as convenient, beneficial and effective as a proceeding by mandamus, neither would put him in statu quo, as that expression is employed in our decisions, and neither would compel the expurgation of the journal by the Secretary of State. It is plain, we think, that those assignments of demurrer which proceed upon the theory that the petition discloses another adequate remedy for the relator are not well taken.

There remains for consideration but one question. It is abstractly the most important in the case. It is also the most difficult. It is whether the Secretary of State was under a duty to erase and expunge the unauthorized entries from the house journal. That he was under such duty must be made to clearly appear before the writ of mandamus will lie against him in respect of it. If the duty exists

it is purely statutory: the Secretary of State has no duties to perform except those imposed upon him by the Constitution and statutes of the State. Mandamus is a conservative, not a creative remedy; it enforces existing duties but does not impose new duties. By it the officer may be coerced to an act which it was his duty to perform without it, but to no act as to which he was under no duty before its issuance. And the duty must be clear upon the statute. The rule as to the duty and the right as to its performance is variously and not always accurately expressed in the adjudged cases. The right must be "certain and positive." Beaman v. Board, &c., 42 Miss. 237. The duty must be "clear, and if there be doubt involving necessity for litigation," the writ will not lie. Townes v. Nichols, 73 Me. 515. There must be "a specific legal right, and a positive duty." State ex rel. v. Burnside, 33 S. C. 276. "Duty must be specifically enjoined by law." Ferlorn v. Carriage Co., 42 Ohio St. 30. Right "must be clearly established. If right doubtful, writ will be refused." M. & O. R. R. v. State, 132 Ill. 559. "Writ will not issue where there is a substantial doubt of respondent's duty." State ex rel. v. Buhler, 90 Mo. 560. "Will not be awarded

when there is a doubt of the relator's right to the relief sought." State ex rel. v. Wallace, 46 Ill. 415. "Duty must be clearly enjoined by law." Draper v. Noteweare, 7 Colo. 276. "It must be clearly commanded by law." Pickett v. White, 22 Tex. 559. "When the legal right is doubtful the writ will be denied." State ex rel. v. Appleby, 25 S. C. 100. Issued when there is a failure to perform "plain official duty" Maddox v. Neal, 45 Kan. 121, not "when well founded doubt as to the alleged duty arises." State ex rel. v. Johnson, 100 Ill. 537; People v. Hatch, 33 Ill. 9. "Where the validity of a judgment of conviction is doubtful, writ will not issue to enforce it." "Rex v. Broderif, 5 B. & C. 239; Regina v. Ray, 44 Up. Can. Q. B. 17. The act sought to be compelled, must be "clearly defined and enjoined by law." Glasscock v. Com'r., 3 Tex. 51. "The writ does not lie to compel a county judge to perform an act which the law does not specifically enjoin upon him, as a duty resulting from his office." State ex rel. v. Napier, 7 Ia. 425. The duty must be either imposed upon the officer "by some express enactment or necessarily result from the office he holds." Pond v. Parrott, 42 Conn. 13. Officer must be "expressly authorized by law." Chisholm v. McGehee, 41 Ala. 192. "A clear, specific legal right" to have the act performed must be shown. 3 Brick. Dig., p. 625.

As we have said, some of the foregoing expressions are inaccurate

or misleading. A doubt that may arise in the mind of the court in matter of law as to the existence of the duty will not, as some of the cases seem to hold, require or justify the denial of the writ: It is the court's province and duty to solve all such doubts and declare the duty as it finds it to be after its misgivings as to the intent and meaning of the statute involved or as to any other question of law have been eliminated. Substantial doubt as to whether the facts of the particular case present the conditions upon which the officer is bound to act, may, it would seem, justify or require a refusal of the writ. Of course the doubts of the officer as to his duty are of no consequence. State v. Tarpen (Ohio), 1 N. E. 209. Again, the duty need not be "specifically enjoined" or "expressly prescribed" by law. The true rule in this connection, we apprehend, is that the duty must be imposed in terms by the statute, in cases like the one in hand, or must result therefrom by fair and reasonable construction or interpretation: it must appear from the statute in terms or by fair implication. Mobile & Ohio R. R. Co. v. Wisdom, 5 Heisk. (Tenn.) 125; Brown v. Duane, 14 N. Y. S. 450; State v. Balche, 89 Mo. 188; Pond v. Parrott, 42 Conn. 13.

And the question recurs: Is the act which relator seeks through this proceeding to have performed by the Secretary of State imposed as an official duty upon him, expressly or by implication by statute? The legislature has not said that it shall

be the duty of the Secretary of State to erase unauthorized matter interpolated into these records, but it has said only that he shall keep the records. Is the duty to erase a fair and just implication from the duty to keep?

Is any such duty to be gotten by implication from the language of the statute? We think not. Let the phrase "to keep" be given its broadest meaning, let it involve the duty to preserve, the duty to prevent spoliation, the duty to prevent interlineation, the duty to prevent entries of any and every kind upon the record as it comes to the Secretary of State, the duty to bring back the record when it is wrongfully taken from his office, the duty to replace leaves that have been torn from it if he can recover them, the duty to blot out ink that may be splotched upon the writing so as to render it illegible, let the duty by implication be extended to all these things, and yet it falls short of imposing upon the Secretary of State the duty of conferring on him the right to strike from this record any writing purporting to be part of it that may at any time appear upon it. For if he has the right and it is his duty to erase any one entry upon assurance more or less certain of its

falsity he has the same right and is under a like duty to expunge any other entry or any part of what appears to be the record upon like assurance of its falsity.

And where there are the conflicting statements of two, he may rely upon the false statement and discredit the true one. And what would be the result? A solemn and true record would be destroyed beyond recovery or substitution, and the most important, formal and constitutional exercise of power by one of the great departments of government, resulting in statutes of the highest moment to the commonwealth, involving, it may be, the life, liberty and property of the citizen, would go for naught. This would not be "to keep the records of the general assembly," but to destroy them. And all this by the purely ministerial officer, who is charged with their preservation, acting ex parte, or rather upon his own motion, without power to examine witnesses, or even to receive affidavits, while the courts, whose business it must be to determine upon proper presentation, what does constitute the records of the general assembly, are not invoked and may be powerless to seasonably interfere to preserve those records from spoliation. It is no answer to say that in the case at bar the court is to determine whether there is an interpolation in the house journal and in what it consisted, and order its expurgation if it is found to be unauthorized. The court in this proceeding can only do that after determining that it was the Secretary of State's duty in the absence of all action by any court to have so determined and thereupon proceeded to erase the alleged foreign matter; and the courts cannot so adjudge in this instance without affirming for all time the power and duty of that officer to pass upon what these records contain and to expunge all that he finds in them that he thinks does not belong there.

whether

The question presented is the Secretary of State was under a duty to expunge these entries. We say that he was not, because such duty would be so fraught with and productive of evil in the way of the spoliation and mutilation of the very record which the legislature has charged the Secretary of State to safely keep and preserve or, at the very best, to subject it to imminent risks of destruction, as that the law-makers could not have intended to have imposed it-could not, while expressly providing for preservation, have intended to afford opportunity and occasion for destruction-and an implication will not be allowed which is not only

not in line with the expressed intent but offers a means of defeating that intent. A duty which puts it in the power of a ministerial officer without adversary proceedings, without notice to anybody, without record of his acts and without his proceeding being subject to review, to change, amend, and destroy public records of the most vital importance to the State and to its citizens cannot be implied from the imposition upon him of the duty to safely keep and preserve those records: a power to thus destroy, even with the honest intent to preserve, cannot be implied from a duty to keep, guard and protect. And this is our conclusion, that from the statute which requires the Secretary of State to keep the house journal after it has been delivered into his custody by the clerk of the house, there is no implication of a duty or right in him to erase and expunge any entry that he may at any time find in that journal or upon the margin of the paper upon which it is written down, and that officer has no such right nor is he under any such duty.

The record presents no error, and the judgment of the city court must be affirmed.

Affirmed.

See also People v. W. T., L. E. & W. R. R. Co., 104 N. Y. 58, supra. A civil suit for damages against an individual is not an adequate remedy nor is a suit on an official bond. People v. Green, 58 N. Y. 295, 306, supra; State v. Dougherty, 45 Mo. 294; but a suit for damages against a municipal corporation is an adequate remedy where damages are competent as a means of relief. King William J. J. v. Munday, 2 Leigh Va. 165. The remedy by indictment is not adequate. Fremont v. Crippen, 10 Cal. 211; People v. Moyer, 10 Wendell (N. Y.) 393.

EX PARTE HURN.

Supreme Court of Alabama. November, 1890.

92 Ala. 102.

Application by petition by W. P. Hurn, for a mandamus to the City Court of Montgomery, Hon. Thomas M. Arrington presiding, on the facts stated in the opinion.

COLEMAN, J. The petitioner, Hurn, having been arrested on the criminal charge of fraudulently obtaining goods on a credit, was searched by the officer making the arrest, who took from him