In mandamus proceeding to compel admission of Negro to University Law School, board of control in its return properly set forth establishment of a Negro law school although that action was not taken until after the alternative writ had been served, since any cause which exists at time fixed for making the return is available as an answer to the mandate of the writ.
The relator attempts to make some point of the fact that the answer shows on its face that the resolution by which the Board of Control created and established the school of law at the Florida Agricultural and Mechanical College for Negroes was adopted subsequent to suit and after the alternative writ had been served upon the respondents; the implication being that by reason of that fact the respondents should be precluded from setting up the establishment of the law school, as a defense in their answer.
We do not deem the point of any consequence. The fact that the resolution of the Board of Control was adopted after the issuance of the alternative writ does not preclude the respondents from setting up the creation and establishment of the new school of law as a complete and sufficient answer to the relief sought by the writ. 'The alternative writ of mandamus being itself in the nature of a rule to show cause, any cause which exists at the time fixed for making return or showing cause is available as an answer to the mandate of the writ. And this principle holds good, even though the issuing and serving of the alternative writ be regarded as the beginning of an action; and any fact which occurs after service of the alternative mandamus, if of such a nature as to constitute a sufficient answer to the mandate of the court, may be set forth in the return by way of defense.' High's Extraordinary Legal Remedies, 3d Ed., Sec. 475, p. 456; see also, State ex rel. Sharp v. Weeks, 93 Mo. 499, 6 S.W. 266; State v. Board of Metropolitan Police Commissioners, 170 Ind. 133, 83 N.E. 83; State ex rel. Haley v. Dilworth, 80 Mont. 111, 258 P. 250; State ex rel. Kavanaugh v. Henderson, 350 Mo. 968, 169 S.W.2d 389.