The function of the writ is to compel the performance of a ministerial duty — not to establish a legal right, but to enforce one which has been established. Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562; Harris v. Board of Education, supra."

The function of the writ is to compel the performance of a ministerial duty — not to establish a legal right, but to enforce one which has been established. Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562; Harris v. Board of Education, supra." Hinshaw v. McIver, 244 N.C. 256, 93 S.E.2d 90; Watson v. Farms, Inc., 253 N.C. 238, 116 S.E.2d 716.

Mandamus is an extraordinary remedy designed to enforce clear legal rights or to compel performance of ministerial duties enjoined by law. Hospital v. Wilmington, 235 N.C. 597, 70 S.E.2d 833; Hayes v. Benton, 193 N.C. 379, 137 S.E. 167; Person v. Watts, 184 N.C. 499, 115 S.E. 336; State v. Justices, 24 N.C. 430. In this action it may be doubted whether the plaintiff's allegations are sufficient to entitle him, by mandamus, to challenge the jury of six in the municipal recorder's court or whether he should try his case and, if the decision is adverse, appeal to the superior court where provision is made for trial by common law jury of twelve. If it be conceded that mandamus from the superior court is the proper remedy to compel a recorder's court to provide a lawful jury, the plaintiff is still in the woods until he shows the jury available to him is an unlawful one.

The function of the writ is to compel the performance of a ministerial duty — not to establish a legal right, but to enforce one which has been established. Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562; Harris v. Board of Education, supra. The findings of fact do not show that plaintiff's license was revoked simply because the defendant Board believed that there was a sufficient number of pilots for the commerce on Cape Fear River, and that they refused to reinstate him or restore his license on that ground.

Such writ will not be issued to enforce an alleged right which is in question. Harris v. Bd. of Education, supra; Hayes v. Benton, 193 N.C. 379, 137 S.E. 169. Mandamus lies only to enforce a clear legal right and will be issued only where there is no other legal remedy. Harris v. Bd. of Education, supra; Cody v. Barrett, 200 N.C. 43, 156 S.E. 146; Umstead v. Bd. of Elections, 192 N.C. 139, 134 S.E. 409. "The function of the writ is to compel the performance of a ministerial duty — not to establish a legal right, but to enforce one which has been established."

The party seeking the writ must have a clear legal right to demand it, and the party to be coerced must be under a legal obligation to perform the act sought to be enforced. Poole v. Board of Examiners, 221 N.C. 199, 19 S.E.2d 635; Warren v. Maxwell, 223 N.C. 604, 27 S.E.2d 721; White v. Comrs. of Johnston, 217 N.C. 329, 7 S.E.2d 825; Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Umstead v. Board of Elections, 192 N.C. 139, 134 S.E. 409. It is rarely, if ever, proper to award a mandamus where it can be done only by declaring an Act of Assembly unconstitutional. Person v. Doughton, 186 N.C. 723, 120 S.E. 481; McIntosh on Practice, 1079, et seq.

Mandamus lies only for one who has a specific legal right and who is without any other adequate legal remedy. 1 Chitty's Practice, 790; S. v. Justices, 24 N.C. 430; Edgerton v. Kirby, 156 N.C. 347, 72 S.E. 365; Barnes v. Commissioners, 135 N.C. 27; Lyon v. Commissioners, 120 N.C. 237; Tucker v. Justices, 46 N.C. 451; Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Braddy v. Winston-Salem, 201 N.C. 301, 159 S.E. 310; School District v. Alamance County, 211 N.C. 213, 189 S.E. 873; Harris v. Board of Education, 216 N.C. 147, 4 S.E.2d 328. Ordinarily equity will not interfere with the enforcement of a municipal ordinance, since, if valid, plaintiff cannot complain, and, if not, its invalidity may be attacked in an action at law.

The discretion vested in the municipal corporations is not entirely without limitation. It must be exercised at least in good faith and be free from ulterior motives. It is not consonant with our conception of municipal government that there should be no limitation upon the discretion granted municipalities, and that no remedy is left to him who may be injured by an abuse thereof. Jones v. North Wilkesboro, 150 N.C. 646; Hayes v. Benton, 193 N.C. 379, and cases there cited. The demurrers, in so far as they relate to the allegations in the complaints that the defendants acted in bad faith and not for the purpose of fixing a fair and just compensation for the judge of the Forsyth County Court, which action was an abuse of discretion by the board of commissioners, we are constrained to hold were improperly sustained, since we are of the opinion that the alleged facts are sufficient to constitute a cause of action for $175.00 per month from 1 July, 1939, until 15 October, 1939, and for $375.00 per month from 15 October, 1939, until 1 March, 1940, and from 1 March, 1940, until 6 May, 1940 (date alleged in complaint court was temporarily suspended by board of commissioners).

The writ is no longer, as at common law, a high prerogative writ; Belmont v. Reilly, 71 N.C. 260; Burton v. Furman, 115 N.C. 166, 168, 20 S.E. 443; and the court has no discretion to refuse it when it is sought to enforce a clear legal right to which it is appropriate. Hammond v. Charlotte, 206 N.C. 604, 175 S.E. 148; Hickory v. Catawba County, 206 N.C. 165, 173 S.E. 56; Braddy v. Winston-Salem, 201 N.C. 301, 159 S.E. 310; Cody v. Barrett, 200 N.C. 43, 156 S.E. 146; Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Person v. Watts, 184 N.C. 499, 115 S.E. 336. Mandamus is as much an instrument of enforcement at law as it is an aid in equity, and, as sought here, may be considered the equivalent of execution. Bear v. Comrs., 124 N.C. 204, 210, 32 S.E. 558; United States v. Oswego, 28 Fed., 55; Chicago v. Hasley, 25 Ill. 595.

The writ will not be issued to enforce an alleged right which is in doubt. Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Cody v. Barrett, 200 N.C. 43, 156 S.E. 146; Powers v. Asheville, 203 N.C. 2, 164 S.E. 324. "The function of the writ is to compel the performance of a ministerial duty — not to establish a legal right, but to enforce one which has been established. The right sought to be performed must be clear and complete.