This is an action of mandamus brought by the plaintiff, as recorder of conveyances for Union county, against the defendant as county clerk of said county, to recover the possession of сertain records to which he claims to be entitled by virtue of his office. Upon the petition being filed, an alternative writ was issued, and to this writ the defendant demurred, and the trial court sustained the demurrer and dismissed the action. From this judgment of dismissal the plaintiff appeals, and assigns as error the sustaining of the demurrer. The demurrer to the writ, among other grounds, specifies that it does not state facts
We ought,-however, before we proceed to consider the objectiоn urged by the defendant to the constitutionality of the act, to be satisfied that the writ stated facts sufficient to involve its consideration, and that its determination wa<? necessary in the decision of the сause. Under the code the petition upon which the writ issues is no part of the plead ings, and the writ must be sufficient in itself to show precisely what is claimed, and the facts upon which the claim is made. Section 569 provides that the alternative writ shal! state concisely the facts according to the petition, showing the obligation of the defendant to perform the act, and hi* omission to pеrform it, and command him, that immedi ately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the cоurt or judge thereof by whom the writ was allowed, at a time and place therein specified, why he has not done so, and that he then and there return the writ with his certificate annexed of having done аs he is commanded, or the cause of his omission thereof. Section 598 provides that on the return day of the writ, or such further day as the court or judge thereof may allow, the defendant on whom the writ shall have been served may show cause by demurrer or answer to the writ in the same manner as to a complaint in an action. The verified petition forms the basis upon which the court may issue the writ, but whеn issued, it ceases to have any office to perform. The facts stated m the writ should be the same
“ There can be no question,” said Strahan, J., “ as to the proper practice. The writ itself ought to contain every material fact alleged in the petition upon which the plaintiff relies, making it the duty of the defеndant to act or do the particular things which the plaintiff demands.” (McLeod v. Scott,
It nowhere aрpears from the writ that the plaintiff is recorder of Union county, or ever was elected such recorder, or by what right or authority he claims or demands the possession of such records, nor does it appear that defendant is county clerk, or by what right or authority he retains or withholds such records, It does not set forth the facts on which the plaintiff relies nor apprise the defendant оf the grounds upon which the remedy is sought.
It is not possible for the court to determine from the allegations in the writ who is entitled to the custody of the records in question. The writ, in effect, does no more than tо command the defendant to deliver such records or show cause why he has not done so. There are absolutely no
“The decision of a question involving the constitutionality of an аct of the legislature,” said Mr. Chief Justice Marshall, “is one of the gravest and most delicate of judicial functions; and while the court did meet the question with the utmost fairness when its decision was indispensable, it is the part of wisdom, and a just respect for t e
“ While the courts cannot shun the discussion оf constitutional questions when fairly presented, they will not go out of their way to find such topics; they will not seek to draw in such weighty matters collaterally nor on trivial occasions. It is both more proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra judicial disquisition is entitled.” (Stuart, J., in Hoover v. Wood,
“ In any case therefore,” says Judge Cooley, “ where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record present some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” (Cooley’s Const. Lim. *163.)
In view of these considerations and the further consideration, that if we resurrect the petition and use it to supply the writ with sufficient facts to raise the constitutionality of the act, and should hold the same to be constitutional, there would still remain for us to determine the respective rights of the parties in regard to the possession of these records under the statute which, if we should likewise decide adversely to the defendаnt, would require us to overrule the demurrer, reverse the judgment, and award a peremptory writ; or, on the other hand, to affirm the judgment on the ground that the act creating the office of recordеr of conveyances is void. It does not seem to us
While we should be glad to accommodate counsel, who. have presented to us a very able and interesting аrgument, we would be unmindful of the obligations which our station imposes and the respect due to a coordinate branch of the government to undertake to pass on the validity of. a statute when its consideration was not presented by the facts of the case for our determination. For these reasons, we affirm the judgment of dismissal, not because the act is unconstitutional, but for want of sufficient facts in the.writ to sustain a judgment.