19 Wend. 56 | N.Y. Sup. Ct. | 1837
Taking the return of the defendants to be correct, as on this motion we must do in settling the question of a peremptory mandamus, the route adopted by the commissioners under the statute was strikingly injudicious. That, however, is" not enough to warrant the disobedience of the town commissioners. They are required by the statute to open and work such road as should be laid out by the commissioners named in the statute, to begin at or near Earlville, and terminate at or near Wilcox, adopting the most direct and eligible route. The word near, as here used, is a relative term, quite indefinite; and the precise points wei e purposely left to be settled by the commissioners appointed by the act: equally so the question of directness and elegibilityi Their duly was judicial; and they having fixed the route, the town commissioners are concluded. This follows most clearly, if the other commissioners have not exceeded their jurisdiction ; and I think they have not. All this I thought so clear, upon the argument, on general principles, on the case there cited of The People v. Denslow, 1 Caines, 177, and other cases within my recollection, that I told counsel they must consider this point as decided against the defendants. A reference was afterwards furnished to Griffin v. House, 18 Johns. R. 397, which has led me to review the point.
In The People v. Denslow, the statute directed a turnpike company to erect their most westerly gate near John
If it were possible to suppose any other case to which these remarks could be applied as a precedent, clearly they furnish no guide for a case compounded of nearness in the termini and eligibility in the route. The decision, more-d over, is undoubtedly sustainable, on the ground that the power of the company had become exhausted by their first act- It was unnecessary, therefore, to consider whether, in a matter of conceded discretion, such as was presented by that case, it be safe to try the question of its proper exer
As to the cases, however, I do not deny there are old ones in England and some in this country which give countenance to the ground now taken. They belong, however, to that severe line of decisions against magistrates, which are explodedoby modern authority. It is not necessary to go over them. I shall content myself with referring to some which make a part of the modern doctrine, and noticing still fewer which hold the exercise of a much narrower discretion than is given by the act under consideration, to be conclusive. The following cases will be found either to lay down or illustrate the principle, or do both : Duquet v. Watkins, 1 Mill. Lou. R. 131; Lining v. Bentham, 2 Bay, 1; State v. Johnson, Id. 385; Mackaboy v. The Commonwealth, 2 Virg. Cas. 268, 271; Osborn v. The Inh. of Danvers, 6 Pick. 98; Mather v. Hood, 8 Johns. R. 44, 50, 51; Holcomb v. Cornish, 8 Conn. R. 375; Martin v. Mott, 12 Wheaton, 19; Stuyvesant v. Mayor of New York, 7 Cowen, 585, 606, 7, 8.
In Henderson v. Brown, 1 Caines, 92, the assessment of a direct tax upon a theatre as a dwelling house, though it was not occupied as such, and should therefore have been assessed as land, was imposed by the assessors. Yet this adjudication of the assessors was holden to protect the collector in levying the tax as upon a dwelling house, though more in amount than it would have been if set down in the land list, Kent, J., said the assessors had jurisdiction of the subject matter. They were bound to assess that building in one view or the other ; and in the exercise of that duty, it is alleged and admitted that they did not exercise that judgment duly. But this is very different from the case in which they were not to exercise any judgment at all over the subject. The grievance is a mere error or mistake by them, while in the exercise of a lawful jurisdiction. See Easton v. Calendar,
In all these cases the jurisdictional question raised was the very point to be decided by the magistrate. So our insolvent law, to entitle a person to a discharge from his debts requires a petition from two-thirds in amount of his creditors. Yet it is no answer to a discharge pleaded, that two-thirds did not petition. It is enough that the petition and proceedings purport to contain two-thirds. “ Whether the debts are really due and to the amount stated is one of the questions and one of the most important questions to be judicially inquired into and determined, after the court has acquired jurisdiction.” Betts v. Bagley, 12 Pick. 572, 582.
After these cases, as well as upon principle, it would be a strange anomaly that the defendants in this mandamus should be allowed to set up their own judgment as commissioners of highways against the decision of the state commissioners. It is the duty of the defendants to obey the judgment which lias been rendered, were all the towns in the
Let us not be told lhat the principles stated and the authorities by which they are sustained do not go equally against a collateral trial of the question upon a mandamus as in an action of trespass against the state commissioners. Suppose a constable to return to a mandamus that he would not obey an execution because the justice who issued it had erred in his opinion, and his judgment should be reversed on certiorari. He might as well do so. The commissioners of highways are, like him, mere ministerial officers. See per Woodbury,” J., in Farewell’s case, 2 N. Hamp. R. 124.
Under the statute in question the state commissioners were to take an oath of impartiality, and afler locating the road they were to cause it to be surveyed, and a survey for each town through which it should pass was to be filed with the town clerk. All this has been done. The act then peremptorily directs the commissioners of highways of the respective towns to open and work the road. Laws, sess. of 1836, 738, § 2.
But the question whether the commissioners have any right to interfere as relators, is raised, and the objection struck me at first as perhaps well founded. The relators were, as we have seen, made judges, not parties in interest ; and it is a general rule that a relator must show an interest or title to interfere. If he do not, it seems to be an objection even on error. Such was the opinion of Chancellor Walworth, who examined this point upon principle and on several cases, in The Commercial Bank of Albany v. The Canal Commissioners, 10 Wendell, 30 to 33, on error from this court. The writ does not make title even by showing that the commissioners are inhabitants of the town of Smyrna. It is said that two of them appear by the statute to have been so when that passed. It does not follow that, if this could be received as evidence, they were so when the writ issued. But if they were, I imagine that this gave them no interest beyond that of any other citizen of the state. The road when laid out became a public easement, the legal
Most of the cases respect private or corporate rights. Courts or officers or corporations are to be put in motion with a view to enforce some matter of private interest. In such case the title to relief at the suit of the relator must appear, and he should present himself as a party ; "otherwise a mere stranger might obtain a mandamus officiously and for purposes not at all desirable to the real party. See per Abbott, Ch. J. in Rex v. Sheriff of Chester, 1 Chitty’s R. 479. In matter of mere public right, however, it is otherwise ; here the people are the real party, as in the other case they are the nominal. Yet it is well known that they cannot act except through individual information, by their attorney general or some private person. The latter is the constant course in procuring indictments, which, on being found, may then, by permission of the court, be pursued either by the public prosecutor or by private counsel. power of this court to grant a mandamus at the suit of the people to compel the commissioners of highways to perform their duty has often been exerted and cannot be questioned. The People v. The Commissioners of Salem, 1 Cowen, 23. The People ex rel. Palmer v. Vail, id. 589. Ex parte Sanders, 4 id. 544. In such cases the wrongful refusal of the officers to act is nó more the concern of one citizen than another, like many other public offences. It is at least the right, if not the duty of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. In Rex v. White, Rep. Temp. Hardw. 92, speaking of a mandamus for a public, as distinguished from a private object, Lord Hardwicke said, “ The reason why we grant these writs is to prevent a failure of justice, and for the execution of the common law, or of some statute, or of the king’s charter.” In Rex v. The Justices of Herefordshire, 1 Chitty’s R. 700, the court said they could grant a mandamus to the justices in sessions to elect a county treasurer; and that was then moved for by private counsel, without objection. In the cases before this court in respect to commissioners of highways, no one
There are many other cases in the books moved by private persons, which were yet founded on matters of as general and public a nature as those presented by the case at bar. No doubt the attorney-general might very properly have moved in this case, and had all private citizens refused to interfere and give information, it -might have been necessary; but I cannot collect from any of the books or the reason of the thing that he alone has power to move. It is not for the defendants to objéct. that several responsible relators appear in the matter.
Beside, the defendants have made a return and put the matter in a train for decision on the merits. In this public matter, there is no doubt the proper parties are before the court. In theory the people are always the plaintiffs, and they are actually so when individual right is out of the case. The objection is not matter of title, as in The Commercial Bank of Albany v. The Canal Commissioners. It is a mere question of regularity in the mode of obtaining the writ; and in analogy to the like cases would more properly have been raised on the motion for the alternative mandamus, or if that was ex parte and without notice, by a direct motion to set aside the writ as havirigimprovidently or irregularly issued. The attorney-general might then have been consulted, and the suit been summarily arrested, or the defect supplied by an appearance on his part. The return is in nature of a plea, which cannot set up mere matter of irregularity. That an.objection of form should come before the return, is supported by the reasoning of the chancellor and several cases cited by him in The Commercial Bank of Albany v. The Canal Commissioners. Matter of mere abatement in a plea is overruled by matter in bar. It seems
It is moreover objected that a mandamus should not go against officers who hold by annual election, and we are referred to The People ex rel. Teel v. Sweeting, 2 Johns. R. 184. That was the case of a motion for leave to file an information in nature of a quo warranto to try the right of an acting town supervisor. It was denied because an issue could not be made up and tried till after the office would expire. The reason does not apply to the case at bar. The obligation sought to be enforced devolves on no particular set of commissioners, and no right is in question which will expire with the year. The duty is perpetual upon the present commissioners of Smyrna and their successors; and the peremptory writ may be directed to and enforced upon the commissioners of the town generally. To say otherwise would be a sacrifice of substance to mere form.
Rule for a peremptory mandamus.