Douglass v. Loomis

5 W. Va. 542 | W. Va. | 1871

BERKSHIRE- P.

Original jurisdiction in cases of nmadamus,, is conferred on this court, by the eighth section of the sixth article of the constitution.

The terms employed to vest such jurisdiction are general'. And it is not provided, either in the constitution or the statute, when or in what cases it may be proper or necessary to issue the writ, nor is the mode of proceeding to obtain it prescribed. In these respects therefore, we are to look to and be govern ed by the principles of the common law. As to the proceedings necessary to procure the writ, the invariable practice seems to have been to apply in the first instance, by suggestion or motion, supported by affidavit, to the court having jurisdiction, for a rule against the defendant, or person refusing to do the act required to be done by the complainant, to show cause why a mandamus should not issue against him. And if, after such rule was served on him, the defendant failed to answer, a peremptory mandamus was issued,, commanding him to do the thing required to be peiformed. But if he returned an answer to the rule and failed to show sufficient cause against it, the rule was made absolute, and a conditional writ thereupon issued, commanding the defendant to perform the act complained of, or show cause why he had not done so. If on the other hand, sufficient cause was shown by the answer, the rule was thereupon discharged. If, however, in any case the facts on which the mandamus is made to dépend, were disputed, the controversy thereon could not arise on the rule or answer to it, but always arose on the return to the conditional writ; as to which return the complainant or person who sues out the writ might demur or plead thereto. 2 Tucker Com. 202. Moses on Mandamus 201-2. People vs. Commissioners, &c., 7 Wendell 474. Sikes vs. Ransom, 6 Johnson R. 279. The People vs. Pearson, 2 S. Com. 189. This practice of the common law is distinctly recognized by our Code, chapter 109, section 1 and 2, p. 570, and it is accordingly provided that “ when a mandamus is issued, the return thereto shall state plainly and concisely the matters of law or fact relied on in opposition to the complainant,”' and that thereupon the complainant may demur, plead, &c., to such return. In what cases would the writ issue ? Independently of any constitutional or statutory provision, it seems to have been long conceded and settled, that superior courts, by virtue of their supervisory powers over inferior courts, have jurisdiction to compel, by mandamus, the judges of such inferior courts to sign and seal in a proper case, bills of exceptions. This jurisdiction, it was conceded, at a very early period in the history of English jurisprudence, belonged to the court of the King’s Bench, by reason of its appellant powers over the inferior tribunals of the Realm; although from some cause, for which I can find no satisfactory explanation, no such writ seems ever to have issued from that court, and the practice was for it to issue from the court of chancery. Upon this principle the supreme court of the United States claimed and exercised jurisdiction in such cases, by virtue of its appellant jurisdiction conferred on it by the judiciary act. Exparte Bradstreet 4 Peters’ R. 105. Exparte Crane & others vs. Grane & others, 5 Peters 189. And upon the same principle, the supreme courts of the States seem to have assumed and exercised jurisdiction in similar cases. State of Ohio vs. Todd & others 4 Ohio (State) R. 351. Syhes vs. Ransom 6 Johnson (N. Y.) R. 279. The jurisdiction of this court therefore to issue the writ, in a proper case, to compel a judge of the circuit court to sign and seal bills of exception, cannot be doubted. The material question however, is, under what circumstances or state of facts may such jurisdiction be invoked or exercised. It seems to be well established by the authorities, that this can only be done when the judge refused to sign any bill of exceptions, in a case tried before him, or a particular bill which it is conceded by him correctly sets forth the facts. It is equally clear however, that a judge will not be compelled by mandamus, to sign a bill of exceptions, when he alleges in his return to the original writ, that the bill does not truly state the facts; and also, that the judges have the sole power of determining whether the bill is true or not, their return to the writ being conclusive of the case, and not liable to be disputed or passed upon by a jury. And the remedy (if any) of the complainant in case of a false return would seem to be an action on the case for dam-ages. And hence the rule is that the judge, in a case where the charge is that he refused to sign any bill, is commanded, in the conditional writ, to sign and seal the bill if it correctly sets forth the facts. But where the complaint is that he refused to sign a particular bill, lie is required in such writ to sign the bill or show cause why he has not done so. Moses on Man. 19 Exparte Bradstreet 4 Peters R. 105. Exparte Crane and others vs. Crane and others 5 Peters 189; 2 Tucker Comn. 292. State of Ohio vs. Todd and others 4 Ohio (State) R. 351. Sikes vs. Ransom 6 Johnson (N. Y.) 279. Porter vs. Harris 4 Call. 485. Jamison vs. Reid 2 Gree. (Iowa) 394. The People vs. Pearson 2 Scam. 189. State vs. Noggle 13 Wis. 380. Hilliard on new trials 634. Todd’s pr. 864 (side.) In this case it is alleged, in the petition for the rule, that the defendant Loomis refused to sign a particular bill, which was prepared by the complainant's counsel and presented to him, which bill, it is averred, truly set forth the facts. In his answer to the rule the defendant avers, in substance, that he did not refuse to sign any bill that correctly stated the facts, &c.; and further, that the particular bill, referred to in the petition for the rule, did not fully and truly state the facts, but on the contrary in some particulars grossly misstated them, and also that he had signed a bill which truly set forth the facts as they appeared on the trial. The answer, therefore, under the authorities before cited, showed good and sufficient cause against the issuing of the conditional writ, and the rule should be discharged with costs to the defendant.

The other judges concurred.

Writ of mandamus denied and rule discharged.