| Md. | May 4, 1865
delivered the opinion of this Court:
In the opinion in this cause, delivered by this Court at the June Term, we did not enter fully into a statement of the changes of the law in cases of mandamus, wrought by the Act of 1858, ch. 285, now embodied in the Gode, Art. 59 ; nor is it necessary now to do so. The chief purpose of that Act was to avoid the delays attendant upon the proceeding at common law, and to make the remedy more speedy and effectual. To accomplish that object, the Legislature has abolished the alternative writ, requiring the defendant, in his answer to the rule ,to shew cause, issued
The Act further directs that the issue shall be tried by a jury, if either party desire it, or heard and determined by the Court if both parties agree; and if a verdict bo found for the petitioner, or the Court, on a hearing, determine in his favor, or judgment be given for him upon demurrer, or for want of a plea, he shall thereupon recover his damages and costs, as he might have done in an action on the case for a false return, to be levied by execution; and a peremptory writ of mandamus shall be granted thereupon, without delay, against the defendant.
Before proceeding to examine the particular questions arising upon the motions now before us, it is proper to remark:
First. That while these material changes have been made by the Code, in the course and manner of proceedings in cases of this kind, the essential nature of the remedy or of the writ is not changed. It is still what it was at the common law, a prerogative writ, not demandable ex débito justifies, but granted at all times in the sound discretion of the Court, under the rules long recognized and established at the common law. When the Code therefore directs that, upon the verdict being found in favor of the petitioner, a
Secondly. In the opinion of this Court, the essential properties of the writ itself have not been changed; and when it has been issued by a competent Court, in the peremptory form, it has the same force and effect as the peremptory writ at the common law; and the defendant cannot disobey it for any cause or reason which might have been urged in resisting the application for the writ.
After this appeal was heard at. the June Term, this Court affirmed the ruling of the Superior Court, set forth in the bills of exceptions, and ordered the writ to be issued in the peremptory form. It was issued on the 29th day of October 1864, and made returnable to the December Term. By the change in the Constitution, which went into effect on the 1st day of November, the December Term was abolished ; and by the Act of Assembly, passed at the last Session, a special Term was directed to be held on the 24th day of January 1865, to which all writs and process returnable to the December Term 1864, were made returnable.
The defendants failing to return the writ, upon' application to this Court, on the 1st day of March, a rule was laid upon them to make return of the same on or before the ⅞ day of March. That rule having been duly served, and its exigency not having been obeyed, the Court, on the 8th day of March, directed an attachment for contempt to be issued against the parties, returnable on the 14th day of March. On that day'the defendant, Weber, upon whom alone the peremptory writ had been served, appeared in person, and first having, by leave of the Court, upon solemn oath, purged himself of the contempt alleged against him, was permitted to file in Court, by his counsel, a return to the writ, setting forth certain causes, by which he alleged it had become impossible to execute the same; and thereupon
We have said that the writ, when issued in Maryland in the peremptory form, has the same force and effect as at the common law, and the same rule applies, that ordinarily no return thereto will be accepted, except a certificate of obedience. Tap. on Man., 408. Queen vs. Ledgard, 41 Eng. C. L. Rep., 697, 700. This is the general rule; nevertheless, it is settled that a peremptory writ may be quashed or set aside if it has prematurely or improperly issued, or if it has unnecessarily issued, or if it be on its face bad in substance. Tap. on Man., 408, 409. Or if it be impossible or illegal to obey it. State vs. Jones, 1 Iredell, 414.
This brings us to the examination of the grounds alleged in support of these motions :
First. It is suggested that the writ was prematurely or improvidently issued, inasmuch as the judgment rendered by the Superior Court was merely a judgment for costs, and no writ of ma,ndamus being ordered by that Court, the Appellate Court ought, upon the affirmance of the judgment, to have remanded the cause upon procedendo; so that the discretion of the Court below might be exercised in awarding or refusing the writ. This matter was very carefully considered when the decision of the cause was made at the June Term. Of the power of this Court to award the writ under the 1 Qlh sec. Art. 5 of the Gode, without sending back the case under procedendo, no doubt whatever exists; and we are equally clear that, upon the record and the bills off exceptions as they appeared before us at the trial, no reason whatever existed why a procedendo should be issued; no cause was apparent upon the record, or suggested in the argument, why the writ should not bo granted; and therefore it was within the power of this Court, and entirely in conformity with justice and the precedents in similar cases,.
Second. The next bause assigned for disobeying the writ is, that at the time when the return was made, a Court of competent jurisdiction, upon a bill filed alleging the same, had, by reason of matters happening since the judgment of the Court below, enjoined the petitioner (Zimmerman) from entering or attempting to enter the pulpit of said church, or from interfering with or interrupting the pastor now in charge of the congregation, until the cause in that Court could be heard and determined; that the proceedings are still pending, and the writ could not be obeyed without violating the injunction. A copy of the bill of complaint filed in the Circuit Court of Baltimore city, upon which the injunction was obtained, together with a copy of the doctet entries of the cause, is filed with these motions. By reference to these proceedings, it appears that the bill was filed in the name of the corporation, “The German Evangelical Lutheran St. Stephens Church,” on the 31st day of October 1864, ten days after the opinion of this Court was filed, deciding that the petitioner was entitled to the writ, and two days after the writ was ordered and issued; and yet the bill failed to disclose to the Circuit Court any of the proceedings which had been taken in the Court of Appeals, says nothing of any appeal having been taken, or of the decision and judgment of this Court.
If these facts had been disclosed, it is not supposed for a moment that the judge of the Circuit Court would have granted the injunction; and we are forced to the conclusion that the action of that Court was obtained by a partial representation of the facts.
But in no event could an injunction so obtained serve as an excuse for disobeying a peremptory writ of mandamus issued by this Court, or by any other Court of competent jurisdiction. When once issued, it cannot be stayed by injunction, like an ordinary execution upon a judgment at law. To allow such interference would interrupt the course
The Circuit Court had no jurisdiction or authority to issue the injunction, and such a proceeding, therefore, furnishes no ground for quashing the writ, or excuse for disobeying it.
If, by reason of matters subsequent, tbe writ cannot or ought not to be executed, they may be made known and relied upon in tbe Court issuing the writ, and which alone has jurisdiction and control over it, and are not proper subjects for the action of a Court of Equity by injunction or otherwise.
Third. The mandamus in this case was issued to restore the petitioner, Zimmerman, to his office and functions of pastor of “The German Evangelical Lutheran St. Stephens Church,” to which ho had been duly appointed, and from which lie had been unlawfully removed by the respondents. By the Act of incorporation of the church, 1802, ch. Ill, it is required that the minister bo a member of the Evangelical Lutheran Synod of' Maryland, under whoso jurisdiction the church is placed. It now appears, by this motion and return, veri fled by the hand of the secretary and the seal of the Synod, that at a meeting of that body, beld ■from the 14th to the 18th day of October 1864, the petitioner, Zimmerman, was “ expelled from the ministry, and his name stricken from the roll” of members. So tbat since the trial of the cause in this Court, the petitioner has been rendered, by the action of the Synod, disqualified from holding the office of pastor under the charter.
If this fact had been made known to. this Court before tbe writ was ordered, no writ would have been issued; and now being shown by proof uncontradictccl, it is in our opinion good cause for quashing the writ and discharging the parties from the attachment. It is unnecessary to notice the other grounds set forth in the motion and return.
For the reason last stated, the attachment will be quashed and the writ set aside, without prejudice, however, to the right of the petitioner to renew, in the Superior Court, his application for the writ, and of trying the facts before a jury.
Writ superseded (md attachment quashed.