If as so construed the petition states a cause of action, a demurrer must be overruled. A demurrer reaches an instrument filed with a petition and made a part thereof but does not admit any construction placed on any instrument pled and set forth in the petition. Clyde v. Buchfinck, supra. Therefore, in determining whether a demurrer should be sustained, the trial court may construe an instrument made a part of the petition. Without addressing the reasons why the Board did not act, we can infer that the Board refused to consider Pratt's request to be considered for early parole.
Mandamus is a law action.
State ex rel. We note that since Pratt's petition was filed, the relevant statutory language has been omitted by amendment. However, in considering whether to grant a writ of mandamus, we consider whether the duty to be enforced was one which existed at the time the petition was filed. Mandamus is available to enforce the performance of ministerial duties of a public official but is not available if the duties are quasi-judicial or discretionary. The general rule is that an act or duty is ministerial if there is an absolute duty to perform in a specified manner upon the existence of certain facts.