Atwood v. Cox

• Decision Date: 11 March 1936
• Docket Number: 5701
• Court: Utah Supreme Court
• Parties: ATWOOD v. COX, District Judge

55 P.2d 377

88 Utah 437

ATWOOD v. COX, District Judge

No. 5701

Supreme Court of Utah

March 11, 1936

Original prohibition proceeding by John L. Atwood against Hon. Le Roy H. Cox, acting as Judge of the Fourth Judicial District Court, in and for Wasatch County, wherein an alternative writ of prohibition was issued.

Application for permanent writ dismissed, and temporary writ dissolved.

H. L Mulliner and Marion G. Romney, both of Salt Lake City, for plaintiff.

George B. Stanley, of Heber, for defendant.

WOLFE Justice. ELIAS HANSEN, Chief Justice, MOFFAT, Justice, concurring in the order. FOLLAND, Justice, EPHRAIM HANSON, Justice, concurring.

OPINION

WOLFE, Justice.

This is an application for a writ of prohibition in regard to which an alternative writ was issued. The question is, Shall it be made permanent? The basis for the application was that the amended accusation and complaint does not state a cause of action, and that therefore the trial court is without jurisdiction to proceed to try the case on its merits. So much of the substance of the amended accusation and complaint by J. C. Tuft and Wm. C. Crook, plaintiffs, against John L. Atwood, defendant, as is necessary to understand the points herein decided is hereunder stated: Defendant Atwood was since January, 1933, a member of the board of education of the Wasatch county school district. That he was paid the maximum annual salary of $ 150 in monthly installments of $ 12.50 each. That he had received all salary due him up to and including the month of April, 1935. That on December 18, 1933, he presented to the board of education of the Wasatch county school district a claim in the aggregate sum of $ 6.17, consisting of the following items:

Nov

Visiting Charleston School 1/2 day

2.00

Dec 5

Visiting school route 1/2 day

2.00

That said fees are in excess of the maximum salary allowed by law to the defendant, and that by reason thereof he knowingly, willfully, and corruptly charged the said board of education a fee in excess of the maximum salary allowed for services rendered as a member of said board of education. That said fees were paid.

In the second cause of action it is alleged that on February 8, 1934, the defendant presented to said board of education of said school district a claim in the aggregate of $ 5.91, which included two items under dates of February 22 and February 26 (the alleged date of presentation appears to be before the dates on which the visits appear to have been made); said items being, respectively, for $ 2 and $ 3 for visiting schools. It is further charged that said fees are in excess of the maximum salary allowed by law, and that, by reason of the putting in of said claim, defendant did knowingly, willfully, and corruptly charge the said board of education with a fee in excess of the maximum allowed by law for services rendered as a member of said school board. It is further alleged that the defendant Atwood received payment of said items.

In the third cause of action it is alleged that on November 19, 1934, defendant presented to said board of education a claim in the aggregate of $ 19.70, which included three items for visiting schools under dates of November 5th, 9th, and 16th for $ 2, $ 4, and $ 2, respectively, which items were in excess of the maximum salary allowed by law, and that defendant knowingly, willfully, and corruptly charged the said board of education for fees in excess of the maximum allowed by law for services rendered as a member of said board of education; that the defendant received payment of the three items, or a total of $ 8.

For a fourth cause of action it is alleged that on December 10, 1934, defendant presented to said board of education of said school district a claim in the aggregate of $ 10.50 for "hauling water to Charleston School--70 days at 15c per day," which was in excess of the maximum salary allowed by law to a member of said board of education, and by reason of which the defendant knowingly, willfully, and corruptly charged said board of education for a fee in excess of said maximum salary; and that the defendant received said money.

For a fifth cause of action it is alleged that on March 18, 1935, the defendant presented to said board of education a claim in the aggregate of $ 5.40 for "hauling water to Charleston School--36 days at 15c," adding the same allegations as to corruptness and the receipt of the money. To the accusation and complaint were attached, as part thereof, copies of the claims as presented and paid.

The statute under which the complaint was filed is section 105-7-15, R. S. Utah 1933, reading in part as follows:

"When an accusation in writing, verified by the oath of any taxpayer, is presented to the district court, alleging that any officer within the jurisdiction of the court has been guilty of knowingly, willfully and corruptly charging and collecting illegal fees for services rendered or to be rendered in his office."

Section 103-1-3, R. S. 1933, reads as follows:

"(3) The term 'corruptly' imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person."

On account of the cases of Burke v. Knox, 59 Utah 596, 206 P. 711, and Parker v. Morgan, 48 Utah 405, 160 P. 764, both counsel have proceeded on the theory that the court does not have jurisdiction to proceed in a cause for the removal of an officer where the accusation does not state facts sufficient to constitute a cause for removal. Although the point has not been expressly raised, the writer takes this occasion to examine into that question. A fairly comprehensive statement of the province of a writ of prohibition is contained in 32 Cyc. 598, as follows:

"The writ of prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior tribunal properly and technically denominated such, or to an inferior ministerial tribunal possessing incidentally judicial powers, and known as a quasi judicial tribunal, or even in extreme cases to a purely ministerial body, commanding it to cease abusing or usurping judicial functions. A writ of prohibition is a prerogative writ, to be used with great caution and forbearance for the furtherance of justice, and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy. The legitimate scope and purpose of the writ is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals. This writ is of English origin, being one of the great common-law prerogative writs long in use."

Mr. High in his work on Extraordinary Legal Remedies enumerates three conditions prerequisite to the granting of a writ of prohibition:

"(1) That the court, officer, or person against whom it is sought is about to exercise judicial or quasi judicial power.

"(2) That the exercise of such power is unauthorized by law.

"(3) That it will result in injury for which no other adequate remedy exists."

Mr. High proceeds to announce the doctrine as follows:

"* * * And the remedy may be invoked against any body of persons or officers assuming to exercise judicial or quasi judicial powers, although not strictly or technically a court."

"The province of the writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but it is extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject-matter in controversy, has exceeded its legitimate powers."

Thus the province of the writ and the limits within which it is confined are in the abstract well stated. An examination of the cases in the various jurisdictions will reveal the fact that there has been much confusion in applying these principles, in some an extension of the purposes of the writ and in some cases an outright disregard of them. The underlying reason for this is largely a commendable one. In many cases the court applied to has realized that there is serious error in the lower court's rulings, and that it would be inefficacious to permit such court to proceed, perhaps after a protracted trial, only to be reversed on appeal. The courts have felt the necessity of some sort of procedure which in certain cases would permit the review of an interlocutory order or ruling, so as to save unnecessary and needless work. When, coupled with that situation, the lower court is about to make an order which directly affects property or a public officer's property right in his office and no other remedy is available or is quite inadequate, the temptation of the courts to issue the writs, where error rather than lack or excess of jurisdiction precedes the threatened action of the court, is greatly multiplied. As set out above, the province of the writ of prohibition is designed to keep inferior courts or tribunals within the limits of their jurisdiction, but the difficult problem is to determine under some particular state of facts what is jurisdictional. It is in the determination of this question that courts in issuing the writ have become confused or have purposely winked at what is error in order to arrest the court below from proceeding by actions based on obvious error. Many definitions of jurisdiction are given in 15 C. J. 723, § 13. They all mean, fundamentally, the power or capacity given by the law to a court, tribunal, board, body, or officer to entertain, hear, and determine certain controversies. The word is derived from juris dicto, "I speak by the law." It does not mean that the court must speak correctly by the law. What it says may be incorrect. But it means...