119 Minn. 407 | Minn. | 1912
This is an appeal from an order of the district court of the county of Hennepin overruling the demurrer of the appellants herein to the amended petition in a mandamus case. The relator urges that the order is not appealable.
If respondent in mandamus proceedings may raise the question of the legal sufficiency of the facts stated in the petition and the alternative writ by a demurrer, it follows that an order sustaining or overruling a demurrer is appealable. The statute does not expressly provide that a demurrer may be interposed in such cases to the petition, or alternative writ, which must concisely state the facts showing the defendant’s duty in the premises, but it expressly provides that a demurrer may be interposed to the answer. The statute also provides that: “No pleading or written allegation, other than the writ, answer and demurrer shall be allowed. They shall be construed and amended, and the issues tried, and further proceedings had, in the same manner as in a civil action.” Sections 4558, 4561, 4562, 4563, R. L. 1905. These statutory provisions assimilate in many respects the practice in mandamus to that in ordinary civil actions. State v. County of Chisago, 115 Minn. 6, 131 N. W. 192.
The petition and alternative writ in mandamus cases constitute, in legal effect, the complaint. It is difficult to suggest any good reason why the respondent in such cases should not have the right to raise by demurrer, as well as by motion to quash, the question of the sufficiency of the facts alleged to require him to perform the duty di
In the case of State v. McKellar, 92 Minn. 242, 99 N. W. 807, many of the decisions of this court were reviewed and the correct practice to bring before this court for review the decisions of the district court was indicated, but the question here in controversy was not directly decided.
In the case of State v. Peltier, 86 Minn. 181, 90 N. W. 375, the respondent demurred to the petition and alternative writ, the demurrer was overruled, and the respondent appealed from the order. The appeal was heard and determined on its merits, neither court nor counsel raising any question as to the right so to demur or as to the appealability of the order.
In the case of Gleason v. University of Minnesota, 104 Minn. 359, 116 N. W. 650, the respondent demurred to the petition and alternative writ and appealed from the order overruling it, and the appeal was determined on its merits, court and counsel assuming that the practice adopted was correct.
Whthe we adhere to the view expressed in State v. McKellar, supra, that the approved and correct procedure to bring before the court for review the decision of the district court in mandamus cases is to appeal from the judgment or an order denying a motion for a
The demurrer in this case was technically incorrect in that it was to the amended petition coupled with a motion to quash the writ. The demurrer, liberally construed, challenged the sufficiency of the facts stated in the petition and writ to entitle the relator to the relief demanded. The only question on the merits of the appeal is whether mandamus is sustainable on the facts alleged, which are, so far as here material, briefly these:
The Modern Woodmen of America is a fraternal beneficiary association organized under the laws of the state of Illinois, and is authorized to do business in this state. It has local lodges called camps, of which Hiawatha Camp No. 1931 is one, which is located in Minneapolis. It is not incorporated, and is composed of members of Modem Woodmen of America. The appellants Cook and Guffin are respectively consul and clerk of this local camp. In January, 1912, the supreme legislative or governing body of Modem Woodmen of America passed a resolution requiring members' to pay higher insurance rates than they had theretofore been paying. The new rates are inequitable, unjust and higher than necessary. They were arbitrarily fixed, upon an unjust, unequal and prohibitive basis and place burdens upon the older members of the society, and, if enforced, will preclude them from keeping their benefit certificates in force, which will result in their forfeiture. Many members of the Modern Woodmen of America, many of whom are members of Hiawatha Camp No. 1931, being dissatisfied with the new rates, organized an association under the name of the National Modem Woodmen Assembly, for the purpose of carrying on a campaign of education and taking such legal steps as might be advisable to secure an annulment of the new and increased rates. On February 27, 1912, Hiawatha Camp No. 1931, at a regular meeting .thereof, by a majority vote of the members present, adopted a resolution authorizing and directing the appropriation and payment from the general fund of Hiawatha Camp
Do these facts show that the relator has a clear legal right to have, the duty, which he seeks to enforce by this proceeding, performed? The law of this state applicable to the question is that a writ of mandamus will issue only to compel the performance by an inferior tribunal, corporation, board, or person, of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. Private domestic corporations and their officers are within this rule by virtue of the visitorial power of the state over them, but the writ does not lie to regulate the affairs of unincorporated societies or associations. R. L. 1905, § 4556; State v. Southern Minnesota R. Co. 18 Minn. 21 (40) ; State v. Ames, 31 Minn. 440, 18 N. W. 277; State v. Krahmer, 92 Minn. 397, 100 N. W. 105; State v. DeGroat, 109 Minn. 168, 123 N. W. 417; 26 Cyc. 139.
A careful consideration of the facts alleged in the petition and alternative writ has satisfied us that they do not bring the ease within the rule stated, for they clearly show that the duty, sought to be en
We hold, upon the facts of this case, that mandamus will not lie, and that the trial court erred in overruling the demurrer.
Order reversed.