220 Mich. 490 | Mich. | 1922
On August 5, 1921, police officers of the Metropolitan Police department of Detroit entered plaintiff’s cigar store. It is- claimed that gambling was there in progress, and that a man standing at the
Citing Newberry v. Carpenter, 107 Mich. 573 (31 L. R. A. 163, 61 Am. St. Rep. 346); Taylor v. Isabella Circuit Judge, 209 Mich. 101, and sections 15880-15883, 3 Comp. Laws 1915, Judge Dingeman properly held that while the officers had a right to seize the money to be used as evidence, it was their plain duty to return it when complaint was neither made nor contemplated.
Counsel say:
“Mandamus is an extraordinary remedy granted only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief. It cannot be said that the usual modes of procedure and forms of remedy are powerless to afford relief. If this money was taken from the relator illegally, he has his action and to this action it is the contention of these respondents that he must resort.”
To what action must plaintiff resort? Surely one situated as plaintiff need not seek a money judgment
Practically speaking, the judgment entered may be satisfied by the payment of money, but, strictly speaking, plaintiff is entitled to the return of the identical money taken. It being established that plaintiff is entitled to the money, that defendants have no right to keep it, and that they retain it in their official capacities, there remains to be done by defendants a single, official, ministerial act — returning the money. This act may be compelled by mandamus. It is said in 2 Abbott’s Cyclopedia of Michigan Practice (2d Ed.), p. 1200:
“It may be affirmed as a general rule, sanctioned by the best authorities, that when a plain and imperative duty is specifically imposed by law upon public officers, so that in its performance they act merely in a ministerial capacity, without being called upon to exercise their own judgment as to whether the duty shall or shall not be performed, mandamus is the only adequate remedy to set them in motion, and the writ is freely granted in such cases, the ordinary remedies at law being unavailing. The same rule applies where the duty is imposed by statute and where it exists independent of statute.”
See 26 Cyc. p. 163; High’s Extraordinary Legal Remedies (3d Ed.), p. 312, and Gowan v. Smith, 157 Mich. 443.
The judgment is affirmed.