State ex rel. v. Malheur County CourtState ex rel. v. Malheur County Court
- Reporters:
- , ,
- Before:
- McBride
Lead Opinion
delivered the opinion of the court.
“Mandamus will not lie to compel a court to give a particular construction to a statute in a matter properly within its jurisdiction. And in all such cases the writ is refused regardless of whether the inferior tribunal has decided properly or improperly in the first instance.” And again, at § 188, he says: “Nor will the writ be granted to reverse the decisions of inferior courts, upon matters properly within their judicial cognizance, or to *259compel them to retrace their steps, and correct their errors in judgments already rendered.” He further says (§ 190) : “Even if the party aggrieved has no right of appeal, or if a writ of error will not -lie to the judgment or ruling of the court below, the same inflexible rule applies, and, if the court properly had jurisdiction of the questions presented for its determination, the want of any remedy by appeal affords ho ground for the exercise of the jurisdiction by mandamus.”
The local option law took effect June ‘24, 1904. On Feb.- 21, 1905, an act was passed entitled “An act to incorporate the City of Vale and to provide a charter therefor and to repeal an act entitled ‘an act to incorporate the town of Vale,’ filed in the office of the Secretary of State, February 21, 1889, and to repeal an act amendatory thereto, passed February 15, 1901.” An undescribed danger to the peace and health of the good citizens of Vale being somewhere concealed in the old charter, an emergency clause put the new one in force immediately. Sp. Laws 1905,. p. 127. By section 18 of said act the council is given power among other things, “to license, tax, regulate or prohibit barrooms, drinking shops, saloons, tippling houses * * and all‘other places where spirituous, malt or vinous liquors are sold.” Section 18 also contains the identical provision, prohibiting the issuance of a license for any amount less than that required by the State law, which is found in both previous charters *261and contains further new and salutary restrictions upon the liquor traffic not necessary to mention in this opinion. It may be premised that, at the time this new charter went into effect, prohibition had not yet invaded Malheur County, and that the town of Vale, up to the time of the prohibition election in question in this case, was not restricted in any way in dealing with the liquor business as it saw fit. While the local option law was technically in force all over the State, from June 4, 1904, its effect was. merely that of an enabling act authorizing the citizens of any particular locality in a convenient way to express their desire to have or not to have liquor sold within designated boundaries. Such was practically the holding of this court in Renshaw v. Lane County, 49 Or. 526 (89 Pac. 147). Such being the effect of the law, it had no effect proprio vigore upon the city charter of Vale, and there could be no conflict between the two statutes. From June 24, 1904, until the last election, the town of Vale could license the sale of liquor within its limits, and did so. The two laws were not repugnant. They both could be in force, and actually were in force, at the same time. It will be noticed that there was no reference to, or express repeal of, the local option law by the charter act of 1905. -The clause repealing all acts and parts of acts in conflict with the charter act, without reference to what particular acts it was the intention of the legislature to affect, would only accomplish a repeal in any event by implication.
We are of the opinion that the local option law was not repealed as to the City of Vale by the charter act of 1905.
The judgment should be affirmed. Affirmed.
Decided July 20, 1909.
Rehearing
On Petition for Rehearing.
[108 Pac. 446.]
Mr. Justice McBridedelivered the opinion of the court.
9. The motion for rehearing is based principally on the proposition that mandamus was the proper remedy of plaintiffs in their attempt to compel the county court of Malheur County to make an order excepting Vale from the effect of the order of prohibition made by it. As we held in our former opinion, and still hold, that the City of Vale was not exempt by the terms of its charter from the operation of the local option statute, the question whether mandamus would have been the proper remedy in case it had been so exempt is purely academic, and *264all that was said on that subject was dictum. We do no disagree with counsel that a board, court, or person may be compelled to do an act purely ministerial, even though the doing of it requires him to exercise some judgment in his own mind as to what is the proper and lawful method; but, when he is called upon to declare the law, and to make an exception not made in the statute under whose terms he is attempting to act, he acts judicially. Plaintiffs were not asking the county court to make an order pursuant to the requirements of the local option statute, but asking that they ingraft thereon an order not contemplated therein, namely, excepting the town of Vale from its operation. Granting that the duties of the county court are purely ministerial, to what are they confined? Section 7 of the local option law (Session Laws 1905, p. 45) requires the clerk and sheriff, respectively, to issue and post notices of the special election, and to enter of record their compliance with this provision, and the statute provides that this record shall be prima facie evidence that all the provisions of the law have been complied with. Section 10 requires the clerk to take to his assistance two justices of the peace, and make an abstract of the vote for the information of the county court. Then on the 11th day after the election, the court is required to meet and immediately make an order of prohibition, if a majority of the votes in the county as a whole are for prohibition. Clearly tn« court, in making its order, acts upon the return of the sheriff and the abstract furnished by the clerk. The statute does not require it to hear testimony and conduct a fishing expedition to discover whether or. not the sheriff and clerk have made a false return in respect to posting the notices or making the abstract. It must act “immediately.” Now the writ does not traverse the return nor the abstract. It only attempts to traverse the fact that notices were posted; and, if an amendment were permitted to the writ, so that it should show that no *265notices were posted, it would show no cause for mandamus proceedings against the county court. It acted upon the evidence that the law required it to act upon, and, its duties being ended, this court will not require it to again convene and to do its work over, and include therein the hearing of a contest on the facts that the local option law does not provide for. It has been suggested that, if we take this view, plaintiffs are left without remedy, but this does not logically follow. If, by the malfeasance of an officer, a false return was made, whereby the county court was deceived into making a false finding of the fact, the writer of this opinion feels certain that the law will afford plaintiffs an ample remedy. It is the boast of our jurisprudence that there is no wrong for which the law does not afford redress, and this case is no exception to the rule.
Affirmed: Rehearing Denied.
Dissenting Opinion
delivered the following dissenting opinion.
I agree with the majority opinions in holding that the alternative writ does not state sufficient facts to entitle petitioners to the relief demanded, but for that reason only do I hold that the remedy sought to be invoked will not lie. The effect of the majority opinions, however, is to hold that, even though sufficient facts were stated to demonstrate that the election was void, mandamus would not be the proper remedy. With this conclusion I do not agree. If at the time the proceedings were instituted the county court had not declared the vote, injunctive relief would have been available, but, since there is nothing left, so far as the court is concerned, to enjoin, this remedy, it occurs to me, cannot well be invoked. In fact it is so held in McWhirter v. Brainard, 5 Or. 426. Under the holding of this court in Raper v. Dunn, 53 Or. 203 (99 Pac. 889) and Garrison v. Malheur County Court, 54 Or. 269 (101 Pac. 900), review will lie, from which it follows that, unless the remedy by *266mandamus is available, petitioners are without a remedy. In a very clear and well-reasoned opinion by Mr. Justice Brannon, in Marcum v. Pilot Commissioners, 42 W. Va. 263 (26 S. E. 281: 36 L. R. A. 296), it is held that the inefficiency of all other remedies required that mandamus should be recognized, even though the acts involved were of a quasi judicial nature. If the rule invoked by the majority in this case is to prevail, it may become necessary to recognize a suit in equity to vacate the order of the court as the proper procedure, else make an exception to the well-established principle suggested by Mr. Justice McBride that “there is no wrong for which the law does not afford a remedy,” but why the necessity of further drawing upon a court of equity, when the same result can as readily and conveniently be accomplished by the proceeding before us? It is true petitioners have sought an adjudication to the effect that Vale is without the operation of the local option statute, and this court has held that the charter does not have the legal effect insisted upon in that respect; and in that I concur, but let it be remembered that the further position is taken, and so attempted to be pleaded, that the election in the entire county is void, and it is conceded that, if sufficiently pleaded, the position would be well taken. This could be done by amendment, to allow which is within the discretion of the court where pending; and I know of no reason why the same privilege should not be granted the petitioners in this respect as was extended to the pleaders in a like case: State v. Richardson, 48 Or. 309 (85 Pac. 225: 8 L. R. A. [N. S.] 362) ; and also recognized in Fishburn v. Londerhausen, 50 Or. 363, 377 (92 Pac. 1060, 1065: 14 L. R. A. [N. S.] 1234, 1242) and Powell v. Dayton, 14 Or. 22 (12 Pac. 83). Nor can it make any difference that the prayer asks relief as to the town of Vale only; for, if the election in the entire county is void, it must necessarily be ineffectual as to *267the lesser district, Vale, regardless of whether the language of the charter is sufficient to take the locality out of the operation of the local option law or not. The question, therefore, as to the effect of the charter upon the general law, when viewed in connection with the other points presented, becomes unimportant. But conceding that the effect of the language of the charter was one of the question to be determined by the county court in connection with other features, before declaring the result of the vote, I think the acts of that body are ministerial only, and cannot properly be classed as judicial. Nor can the fact that one of the members is a judicial officer make any difference in this respect. It is nothing unusual for ministerial duties to be imposed by statute upon judicial officers, the performance of which often requires the application, and thereby the interpretation, of laws. As stated by the court in re Harris, 12 Misc. Rep. 228 (33 N. Y. Supp. 1106) : “It is not every exercise of judgment by a ministerial or administrative officer or body that can be held to be the exercise of a judicial function or judicial act. A sheriff is required to determine, at his peril, whether a process he is required to execute is fair upon its face, but such exercise of his judgment is not a judicial act.” To the same effect, Speer v. Stephenson (Idaho) 102 Pac. 365, 371; State v. County Judge, 7 Iowa 187.
It is unnecessary, however, to look beyond our own jurisdiction for authorities upon this subject. As above stated, this court in McWhirter v. Brainard, recognized mandamus as the proper remedy to test the qualification of voters, the legality of the conduct of judges, as well as other matters incidental to the canvass of an election called to determine the selection of a county seat, notwithstanding these questions involve some intricate points of law, or mixed questions of ‘law and fact. So, too, in Shively v. Pennoyer, 27 Or. 33 (39 Pac. 396), the same remedy was invoked to compel the execution of a deed *268by the board of land commissioners, in which instance it was first necessary to determine whether the applicant had complied with the requirements of the law on the subject. State v. Malheur County Court was a special proceeding instituted against the county judge and commissioners to compel them as a court to declare the result of an election held November 8, 1904, for the purpose of determining whether the sale of intoxicating liquors as a beverage should be prohibited in Nyssa precinct. The county judge in his answer expressed a willingness to make the order sought to be enforced, while the commissioners after denying the material averments of the writ, alleged, among other things, that the local option act contravened certain clauses of the constitution of the State, and that the notices of the election were not printed until 16 days prior to the election. It thus appears that there were questions to be determined by the county court in that case equally as judicial as any involved here. In considering that phase, Mr. Justice Wolverton, in State v. Malheur County Court, 46 Or. 519 (81 Pac. 368), holds the duties of the court in this regard to be ministerial only. I think, therefore, the conclusion reached on this point by the majority, inconsistent with all previous adjudications by this court upon these points.
In conclusion, I understand the majority to hold, in effect: (1) The county court in declaring-the result of a local option election acts in judicial capacity, by reason of which mandamus will not lie; and (2) even were it successfully averred that the election was void, petitioners have mistaken their remedy. I think the holding as to both positions in conflict with the previous adjudications on the subject. If the majority opinions in this case and in Roesch v. Henry, 54 Or. 230 (103 Pac. 439), are to stand, all previous decisions by this court bearing on the subjects therein discussed should, in order that there may be no further misunderstanding among the courts and bar upon the subject, be given a respectable *269burial by expressly overruling them. I think sufficient doubt as to the correctness of the conclusions reached exists to justify a rehearing in this court, and that it should be so ordered.