State ex rel. Whitcomb v. Otis

58 Minn. 275 | Minn. | 1894

Canty, J.

Whitcomb and others made an application to this court for leave to file an information in the nature of a quo warranto. The application was denied. See State ex rel. v. Lockerby, 57 Minn. 411, (59 N. W. 495.) Application was then made to the District Court of Ramsey County, and denied without passing on the merits of the application, for the reason, as expressed in the order denying the application, that “the Supreme Court has held that this was not a proper case for the issuance of the writ prayed for. Such holding is conclusive on this court, and relief ought to be by this court denied on that ground.”

The short, hastily written opinion there reported might bear the construction thus put upon it if taken alone, taken with all the proceedings had in that application, it would not. The discretion of the court there discussed is the discretion of this court, and under what circumstances it will grant such applications. This court will not grant such an application if there is a remedy in some other court which is at all adequate, unless under special and exceptional circumstances; as, for instance, that there will be great injury or inconvenience to the public by reason of the delay and uncertainty caused by commencing in the lower court and awaiting a final deter-' urination on appeal to this court. 1878 G-. S. ch. 63,. § 1, confers jurisdiction in these cases on this court, “subject to such regulations and conditions as the court may prescribe.” These are the conditions which this court prescribes in the exercise of this jurisdiction. This is a case in which private rights alone are involved, and we exercised our discretion merely to the extent of deciding that it did not belong to the class of cases of which this court should entertain jurisdiction. Beyond that we did not pass on the merits of the application at all. If we had determined on that application that the writ ought not to be issued in that case by any court, how was it pertinent to suggest, as was suggested in that opinion, that jurisdiction to issue writs of quo warranto may exist in the District Court. This point was not there decided, because it was not raised or argued by counsel.

It has been raised and argued by counsel on this aj)plication, and we are of the opinion that it does exist; that 1SGG G-. S. cli. 122, repealed 1851 K. S. eh. 80, § 1, which abolished this writ; and that such repeal revived the writ as a common-law remedy, to be exercised by the District Court. It is true that 1S6G C. S. cli. 121, § 3, provides that “the repeal of acts and resolves and parts of acts and resolves revised and reenacted herein, or repugnant to the provisions hereof, shall not revive any law heretofore repealed or superseded.” We are of the opinion that the law which this section provides shall not be revived by the repeal of any repealing clause is statute law, not common law, and that it does not apply so as to prevent the writ of quo warranto from being revived by the repeal of the section abolishing it.

It was the duty of the judge of the District Court to consider the application for the writ of quo warranto on its merits, and exercise his discretion in determining whether or not such writ should issue, and it is ordered that a writ of mandamus issue commanding him to do so.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 1015.)