MAURICE TAYLOR vs. FRANCIS N. THOMPSON, Judge of Probate.

RUGG, C. J. This is a petition for a writ of mandamus to command the respondent, the judge of probate for the county of Franklin, to disregard or to dismiss a claim of appeal made in a proceeding under St. 1909, c. 504, § 63, as amended by St. 1916, c. 122, § 1, and St. 1917, c. 223, § 1, wherein Kostanti Nadolny, a minor child, on October 22, 1918, was adjudged to be feeble minded and ordered committed to the Massachusetts School for the Feeble-Minded. The petition further alleges that the said Kostanti, by his attorney and by his father as next friend, filed with the respondent a claim of appeal, and that the respondent erroneously has entertained the appeal upon the mistaken notion that he is bound to regard it under R. L. c. 162, § 9, and that his order of commitment is thereby stayed.

The petition does not on its face show a proper case for the issuance of the writ of mandamus. It was said in Crocker v. Justices of Superior Court, 208 Mass. 162, at page 164, with citation of authorities, "The writ of mandamus is an extraordinary

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remedy, and is usually granted only when no other adequate relief can be afforded. It cannot be employed to supersede an appeal or exceptions in ordinary cases, and does not lie to review a final judgment. Proceedings of inferior tribunals within their jurisdiction in the exercise of the power confided in them cannot be revised in this way. It does not lie to correct errors committed in the course of trial, even though there be no remedy by exception or appeal." See Casey v. Justice of Superior Court, 229 Mass. 200. This principle prevails in the federal courts. In Ex parte Roe, 234 U. S. 70, at page 73, occurs this statement: "The accustomed office of a writ of mandamus, when directed to a judicial officer, is to compel an exercise of existing jurisdiction, but not to control his decision. It does not lie to compel a reversal of a decision, either interlocutory or final, made in the exercise of a lawful jurisdiction, especially where in regular course the decision may be reviewed upon a writ of error or an appeal." Ex parte Park Square Automobile Station, 244 U. S. 412. Ex parte Slater, 246 U. S. 128.

It is an express averment of the petition that an appeal has been taken by or in behalf of the minor under R. L. c. 162, § 9. That appeal will bring before this court the question here sought to have adjudged. If there is no right of appeal under the statute, the question there can be raised. It is averred that the appeal has not been entered in the Supreme Judicial Court. But at the time of filing the petition in the case at bar the time for entering such appeal had not expired. Provision is made by R. L. c. 162, § 24, for appropriate relief in case of failure to enter an appeal from the Probate Court or failure to prosecute it after entry. It is urged that, because under St. 1916, c. 122, § 1, the person cannot be received at the school after the expiration of thirty days from the date of the order of commitment, there can be no appeal. This argument is equally cogent against the issuance of the writ as prayed for, because that time now has expired. The petition does not set forth facts tending to show failure to exercise the judicial function on the part of the respondent, but merely a mistake of law in his effort to perform the duties of the magisterial office. It is a familiar principle that, although the writ of mandamus may be used, to set in motion the jurisdictional activity of a judicial officer to the end that a decision shall be

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reached whenever he refuses for any reason to execute his power, yet it does not direct the action to be taken or the decision to be made. Rea v. Aldermen of Everett, 217 Mass. 427, 432. Crocker v. Justices of Superior Court, 208 Mass. 162, 164, 165.

Although in general the office of mandamus is not to control judicial discretion, it has been said that an exception arises when that discretion has been abused, and that "it is a remedy when the case is outside of the exercise of this discretion, and outside the jurisdiction of the court or officer to which or to whom the writ is addressed." Virginia v. Rives, 100 U. S. 313, 323. This exception, however, appears to have been much narrowed by later decisions. Ex parte Harding, 219 U. S. 363, 373. Whatever may be the law on this point, it is not applicable to the present case. It is contended in effect that it is so plain that there is no right of appeal that the recognition of the attempted appeal is an excess of jurisdiction by the respondent which ought to be remedied. However sound this contention may be respecting the position of the respondent as to the right of appeal under R. L. c. 162, § 9, see Dowdell, petitioner, 169 Mass. 387; Amherst v. Shelburne, 11 Gray 107; Louisville & Nashville Railroad v. Schmidt, 177 U. S. 230; Simon v. Craft, 182 U. S. 427, 436; Sporza v. German Saving Bank, 192 N. Y. 8; St. 1916, c. 122, §§ 3-5; R. L. c. 87, § 118; St. 1909, c. 504, the averments of this petition do not bring the case at bar within the class in which resort may be had to the writ of mandamus, even under a broad conception of its scope.

It hardly need be added that a petitioner in a proceeding like the present is not rendered helpless by the form of taking an appeal. A motion for the issuance of an order of commitment forthwith notwithstanding the attempted appeal would have put him in a position to litigate the question on his own account.

Petition dismissed.