Ruel Morse, Petitioner, &c., 18 Pick. 443

Shaw C. J. delivered the opinion of the Court. [After stating the facts.] The petitioner now applies to this Court for a writ of mandamus to the county commissioners, requiring them to award him his costs, on the ground that having obtained an increase of damages, by the verdict of a jury, he is entitled to his costs, by virtue of the statute, and the commissioners had no judicial or discretionary power on the subject.

It was contended on the part of the respondents, that even if it should appear ever so manifestly, that the petitioner was entitled to costs, as of right, the Court would not grant a mandamus to the commissioners to award them ; and the case of Chase v. Blackstone Canal Co., 10 Pick. 244, was relied upon. In referring to that case, the Court are wrell satisfied that the decision was correct, although there is some generality in the language used in stating the opinion, which requires some qualification.

It appears quite clear, that if the commissioners in that case had any authority to allow the petitioner his costs, it was a discretionary and judicial power, for them to exercise according to their judgment of the merits. The statute only gave costs to the respondent as a matter of right, where the party applying for a jury failed to increase or diminish the damages, and not where the party applying obtained an increase of damages.

It was therefore a case in which the commissioners,,being intrusted by law with the power of judging, the Court would not, by a writ of mandamus, require them to act contrary to their judgment. Most of the reasoning in the case and the authority cited from 3 Dallas, lead to this conclusion. And the result was, that the commissioners, having acted judicially in a matter properly submitted to their judgment, it was not a proper case for a mandamus.

The expression requiring modification, is that in which it is intimated that where a court is imperatively required to allow costs, as incident to a judgment, a mandamus will in no case be granted, requiring such court to allow and tax them. But the rule is recognized, that a judicial tribunal may exercise ministerial functions, and in all such cases, a mandamus will be granted, when there is ao other proper and adequate remedy. Cases may be supposed, in which such a remedy would be propel and warranted by analogy.

Some instances are mentioned in the case cited, as where a judicial tribunal declines taking cognizance of a case within its proper jurisdiction. So if a court, having rendered a proper judgment, should refuse issuing an execution. And so where a judicial tribunal, having found all the facts necessary to a judgment, so that the judgment would be nothing but a conclusion of law upon these facts, the entering up of the proper judgment may be regarded as in its nature ministerial, and in the absence of any other remedy, may be a proper subject for a mandamus.

Other cases, perhaps, might be suggested, w'here in consequence of great changes in the laws, and the erection of new tribunals wdth varied powers, this writ may be necessary, as the only adequate remedy to prevent failure of justice. I have thought it proper to say thus much in regard to the case of Chase v. Blackstone Canal Co., lest the language alluded to might seem to put too great a restraint upon a high and beneficent power, intrusted by law to the judicial tribunals, to be exercised for the purposes of justice, when other remedies fail. This cause has been fully and ably argued.

The ground taken for the petitioner is, that the commissioners were bound to award the damages of the petitioner in cash only, and had no authority to prescribe other duties to be performed by the corporation for the petitioner ; and therefore, that all that part of the award which treated the performance of these duties as a part satisfaction of the petitioner’s damages, was void ; that it stood as an award of $ 500 only, and the verdict, being for $ 600, was an increase of damages, which entitled him to his costs. We think this conclusion cannot be sustained to its full extent.

Suppose it to be true, that the commissioners had no authority, originally, to assess damages in any other way than by awarding the payment of money ; still if they should direct that certain beneficial acts should be done by one party for the benefit of the other, and the parties should assent to and ratify it, as they might do, by proper acts, it would be valid and binding. It might be done by paroi assent of the parties, made before the commissioners, and if formally ratified would be good. We cannot therefore say, that that part of the award was absolutely void.

The commissioners, by their answmr, state that they considered their award of $ 500 and the expensive duties to be done by the corporation for the petitioner’s benefit, as their award of damages ; that by renouncing the award, and claiming a re-assessment by jury, the petitioner renounced the benefits stipulated for him by the award, and that the verdict for $ 600 cash, was less than the award of $ 500 with the stipulated benefits, and therefore that he did not obtain an increase of damages, so as to entitle him to costs.

The commissioners manifestly proceeded on the expectation that if their award was adopted, it would be ratified and confirmed in such manner as to be binding on the corporation, and that the petitioner would be entitled to the benefits stipulated for, as well as the sum of money awarded ; and if so, they were probably right in their conclusion, that such an award would have been of greater value to the petitioner than the damages as sessed by the jury.

Acting upon this view of the case, the commissioners decided that the petitioner was not entitled to costs ; and in this, we cannot say that they failed in a plain duty, required of them by law, and which ought to be enforced by this extraordinary remedy. Petition dismissed.