51 P. 411 | Idaho | 1897
Lead Opinion
This is an original proceeding in this court by way of application for a writ of mandamus to compel the respondent, as district' judge of the first judicial district, to hear at chambers an appeal from an order of the board of county commissioners of Shoshone county to the district court of said district in and for said county. It appears from the petition that said county commissioners made, on the thirteenth day of October, 1897, an order employing W. B. Heyburn as attorney to bring an action contesting the validity of certain bonds theretofore issued by said Shoshone county. From said order one G-. Scott Anderson appealed, on the twenty-second day of October, 1897, to said district, court, giving notice of appeal, and executing an undertaking on appeal. It further appears that on the twenty-eighth, day of October, 1897, the said appellant, by his attorney, W. W. Woods, served upon the respondent, as said district judge, notice, in writing, of the pend-ency of such appeal, and that the clerk of the said board of commissioners did within five days thereafter transmit to the respondent, as said district judge, copies of all of the papers and proceedings relating to said appeal. It further appears that the petitioner here and its said attorney presented a petition to the respondent, as said district judge, praying that he fix a time for the hearing by him, as such district judge, at chambers, of said appeal, and the hearing on this petition was had on the thirtieth day of October, 1897, whereupon the respondent, as said district judge, made an order refusing to set a time for the hearing of said appeal at chambers, prior to the next term of court in the county from which the appeal is taken. Said order is in words and figures as follows: “'This matter coming up before me at chambers at Wallace, in said Shoshone county, on an application, made by W. B. Heyburn on behalf of said county and personally, that said appeal should
The application made to the district judge to hear said appeal at chambers was made under section 1777 of the Kevised Statutes, as amended by act of March 6, 1895 (Sess. Laws 1895, p. 51), which is as follows: “Such appeal may be taken to the district court, or the judge thereof, of the judicial district of which the county is a part by serving upon the clerk of the board a notice of appeal so referring to the act, order or proceeding appealed from as to identify it; that upon notice, in writing of such appeal being brought by any person to the attention of such judge, he shall fix the earliest time and a place, convenient to himself, for the hearing of such -appeal, which may be heard in a summary manner before him, or his court, and, when in his opinion no serious injury will result from delay, the hearing shall be hkd during the next term of this court in the county from which the appeal comes. When the appeal is made for the purpose of protecting the interests of the county and of the people, no requirement shall be made of the appellant for security of costs, except that when the district judge shall be of opinion that such appeal is not made in good faith, but is for delay and vexation, he may require the appellant to enter into an undertaking with good sureties in an amount sufficient to secure the payment of costs, and in all other cases like undertaking shall be required.”
The petition upon which the said application was made is as follows: “To the Honorable A. E. Majdiew, Judge of said
The respondent moved to quash the alternative writ issued herein upon the ground that this proceeding was commenced by the “board of county commissioners of Shoshone county,” without naming them, and that said board is not a corporation or partnership, and cannot sue by such name; and for the further reason that the petition herein was not verified by any person authorized by law to verify it. The respondent then, by consent of the court and of counsel for petitioner, filed return to the writ, without prejudice to said motion. The return raises two questions: 1. That in continuing the hearing of said appeal to the next term of the district court' sitting in and for Shoshone county the respondent, as district judge, was exercising a judicial discretion vested in him, and which discretion cannot he controlled by mandamus. 2. That the act of March 6, 1895, amending section 1777 of the Be-
Under our view of this case it is not necessary to decide the motion to quash the alternative writ. Without deciding the question, we will say that it is exceedingly doubtful whether the board of commissioners of a county, as such, have authority, in the name of the board, to commence a suit or proceeding for the benefit of the county. In this case the name of the petitioner is stated in the petition as "the board of county commissioners of Shoshone county, state of Idaho.” Such board of commissioners, as such, is not a corporation, and we know of no authority by which the board can sue by its common name. The board of commissioners do not appear to be the real party in interest. We think that the first point raised by the return is well taken, and fully sustained by authority. The statute above quoted vests in district judges a judicial discretion in passing upon the application to hear at chambers in a summary manner, which cannot be controlled by mandamus. The petition presented to the respondent as judge of the first district and herein quoted, raised one question — that of the existence of an urgency or necessity to hear the appeal summarily at chambers, to be decided by him judicially. The terms of the statute under which the said application was made vest in the judge a judicial discretion. The statute says: “When, in his opinion, no serious injury will result from delay, the hearing shall be had during the next term of his court in the county from which the appeal comes.” 'After hearing the application, the respondent district judge judicially determined that “no serious injury will result from such delay.” We are now asked to say that the judge of the first judicial district abused the discretion reposed in him. And it is argued here that the county of Shoshone will suffer to the extent of $10,-000 if said appeal is not speedily heard by said judge, inasmuch as the treasurer of Shoshone county will, on January 1st, next, pay interest to that extent on bonds which
The question of law that is here involved is tersely, and, as we think, correctly, stated by Mr. High in his work on Extraordinary Legal Bemedies, second edition, at section 176, as follows: “We have thus considered in detail the general rule denying relief by mandamus in all cases where the purpose of the application is to control the judgment or interfere with the discretion of the court below. The controlling principle in refusing the interference in all such cases seems to be to leave the inferior court untramn ded in the exercise of ii; own powers, and to refuse a species of relief which would, i.i effect, substitute the opinion of the superior for that of the inferior tribunal, and compel the latter to render judgment, not according to its own views of the law, but by substituting another judgment in lieu of its own, while the cause is yec pending before it. Such a procedure would be alike foreign to the nature and purpose of the remedy under consideration, and we may therefore conclude that the doctrine is too firmly
Dissenting Opinion
Dissenting.
I regret that I am unable to concur with my brothers. They express doubt as to the right of the board to bring suit in the name of the board. But I understand that doubt is suggested by reason of the.
Thus it is shown that the exceptions to the rule that man-d.amus will not issue to control the discretion of a court are as well established as the rule itself. Neither the general rule nor the exceptions thereto authorize mandamus to issue where there is a plain, speedy, and adequate remedy in the ordinary course of law. In the case at bar there is no such remedy. The main object and intent of the amendment to section 1717 of the Bevised Statutes, was to provide a speedy hearing of appeals from boards of county commissioners. The question whether a summary hearing shall be had is only a preliminary one, and the judge cannot arbitrarily refuse such hearing merely by stating that, in his opinion, no serious injury would result from delay. If the facts shown by the petition and return clearly indicate that injury will result from delay, an abuse of discretion is then established, and the writ should issue. The main question is the hearing of the appeal. Whether a summary hearing shall be given is only preliminary to that.
As to the merits of the main case, this court has nothing to do. The writ of mandate will issue to correct decisions on preliminary questions involving judgment and discretion. (Merrill on Mandamus, secs. 47, 48, 207.) To illustrate: Supposing, on the hearing of the motion for a summary hearing, it was clearly shown that serious injury would result from a delay in hearing the appeal, and the judge, in deciding said motion, would say: “I concede that the facts clearly show that injury would result from a delay, but, owing to the absolute discretion given me, I shall hold that, in my opinion, no serious injury would result from a delay, and shall continue the cause” — would not a writ of mandate issue to compel him to hear the ease? I think so. I have put an extreme case, but, supposing the-facts show beyond doubt that-serious injury would result from delay, would not the writ issue? Under the rule laid down by my brothers, such arbitrary abuse of discretion as above suggested could not be corrected by writ of mandate. The petition for the writ — the alternative writ— and the return thereto are before us, and are the papers on
The allegation of the danger of the payment of $9,800 interest on said bonds is denied by the defendant on information and belief. Such denial admits the facts. (Merrill on Mandamus, see. 280.)
It appears from the petition that the board of county commissioners of Shoshone county entertained grave doubts as to the legality of certain interest-bearing bonds which had been issued by said county, and employed W. B. Heyburn to investigate said matter, and, after such investigation, to render to said board his opinion, in writing, as to the validity and legality of said bonds; that said Heyburn proceeded to investigate said matter, and thereafter gave his written opinion thereof to said board, which opinion held that at least a portion of said bonds was invalid, or had been illegally issued. Thereupon said board passed the resolution set forth in the opinion of my associates. Said resolution recites the facts that said board has been advised by legal counsel that a large portion of the bonded indebtedness of Shoshone county is based upon warrants that were issued in violation of law, and that said board deemed it unjust and unlawful for their county to pay interest thereon, and that the county treasurer be instructed not to pay further interest on such bonded indebtedness until it could be determined whether said bonds were legal or not; and that W. B. Heyburn be retained and employed to take such action in the proper courts to test the validity of said bonds, and fixed his compensation for such services; and also
The interest of the county as well as that of the bondholders demands a speedy termination of said appeal. The validity of the bonds has been questioned. If the bonds are legal, the interest ought to be paid when due. If the treasurer pays the interest when due, and the bonds are held illegal and void, the county will be injured to the extent of the payments made. The treasurer cannot well be restrained from paying the interest when due until a suit is brought to test the validity of said bonds, and the board of commissioners, as a board, cannot bring an action to test the validity of
Te defendant says, in his return, that on the hearing he considered the petition and certain reasons and arguments presented, and exercised his best judgment and judicial discretion,, with a view, in his judicial opinion, that no injury would result to the petitioners from a delay in hearing said appeal. 'That language is very peculiar, to say the least. The petitioners are not the only ones interested in this matter. The people of the county and the bondholders are interested parties. They are the ones to whom injury will result, if anyone, and it appears from said return “he exercised his best judgment and judicial discretion in the matter, with a view [preconceived, I suppose], in his judicial opinion, that no injury would result to petitioners from delay, as in his order on October 30, 1897, recited.” It would appear from said quotation that the defendant based his opinion on “reasons and arguments” presented, and therefrom found that the petitioners would suffer no serious injury from delay, but, as the matter involved in said appeal concerns the people of a county and others, he should have considered whether serious injury would result to any or all concerned if the hearing was delayed. He fails and refuses to frankly state the facts on which his opinion is based, and evades and quibbles in regard to the facts. Section 1777 of the Bevised Statutes, was amended for the purpose of preventing delays in the hearing of appeals such as the one under consideration. The judge does not state the grounds on which Ms opinion is based. His opinion is based on the facts as shown by the papers before him, and it clearly appears to mo that his decision on those facts was erroneous. This being a preliminary question (the hearing of the appeal is the main question), his action may be reviewed by writ of mandate.