Bailey v. Edwards

• Decision Date: 07 July 1913
• Citation: 47 Mont. 363
• Parties: BAILEY v. EDWARDS.
• Court: Montana Supreme Court

47 Mont. 363

BAILEY

v.EDWARDS.

Supreme Court of Montana.

March 27, 1913.

On Rehearing, July 7, 1913.

Appeal from District Court, Lewis and Clark County; E. K. Cheadle, Presiding Judge.

Action by Leonard Bailey against Frank J. Edwards. From a judgment for defendant, plaintiff appeals. Affirmed.

W. T. Pigott and Massena Bullard, both of Helena, for appellant.

Walsh & Nolan and Edward Horsky, all of Helena, for respondent.

SANNER, J.

According to the complaint, the appellant, plaintiff below, and Moses Quintin, George Farnam, and William F. Bossler were, on June 1, 1908, members of the police force of the city of Helena; on that day the respondent “wrongfully, unlawfully, maliciously, and oppressively, and under color of his pretended authority as mayor of said city, did without right or jurisdiction or authority, and contrary to the provisions of the statute in that behalf enacted,” cause their dismissal and exclusion from office; and although they at all times and by all proper means protested against this exclusion, and repeatedly reported for duty and tendered their services as members of the police force, they were by the act of respondent deprived of “all the insignia, badges, privileges, and emoluments” of office until their restoration by judicial mandate on February 11, 1910. The personal claims of Quintin, Farnam, and Bossler are alleged to have been assigned to the appellant, and he prays damages measured by the salary of each officer during the period of deprivation, with interest.

Several questions are presented by the assignment of errors, but they are all resolvable into one, viz., whether the trial court correctly granted respondent's motion for nonsuit. The order of nonsuit, to be sustained, must find support in one or the other of the following grounds: (1) That the appellant is barred and concluded from maintaining this action on principles of res judicata; (2) that the evidence does not show any damages suffered by plaintiff which are recoverable in this action.

1. It seems advisable to first dispose of the question, presented by the pleas in the answer, to the effect that the appellant is precluded from maintaining this action because he and his assignors prosecuted against the present respondent, as mayor of the city of Helena, their several mandamus proceedings in and through the district court of the First judicial district and to final decision by this court “for the same causes of action as are now pleaded and in which the matters now in controversy were, or might have been, determined.”

It is disclosed by the reply that the fact basis for the relief now sought is essentially the same as that for relief in the mandamus proceedings. Among the issues then presented and determined were “whether or not defendant, acting under the pretense and cover of his office as said mayor, but without authority of law and contrary to the provisions of the statute in that behalf enacted and without any right or justification so to do, on June 1, 1908, did unlawfully dismiss and discharge plaintiff from said police force and preclude him from the use or enjoyment of said place, and prevent him from performing any service or duty as a member of said force, and thereafter always prevented plaintiff from acting as such member and from discharging his duties as such, and deprived him of his badges and other insignia of his office, and of his privileges as such member.” The loss of emoluments, as a matter of special damage, was not raised by the pleading in the mandamus proceedings, but it is quite clear that if causes of action as against Frank J. Edwards, personally, now exist in virtue of the claims of appellant and his confreres, they existed in part, if not in toto, at all stages of the mandamus proceedings against Edwards as mayor; and if these claims should have been litigated in those proceedings, then, under the familiar principle, applicable in mandamus as elsewhere, that a judgment concludes the parties thereto and their privies as to all matters which might have been litigated as part of the subject in controversy, they cannot be litigated now.

The question is not free from perplexity. In the chapter of our Codes relating to mandamus, we find provisions for a verified answer; for traversing the answer; for trial by jury of certain questions of fact; for judgment; and “if judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, * * * together with costs,” etc. Rev. Codes, § 7224. This section is apparently an open door to any claim of damages whatsoever arising out of the transaction which the writ of mandate is invoked to remedy; and such--the expressed conclusion of some courts--is implied in the decisions of others to be found upon the subject. Achey v. Creech, Sheriff, 21 Wash. 319, 58 Pac. 208;Bell, Sheriff, v. Thomas, 49 Colo. 76, 111 Pac. 76, 31 L. R. A. (N. S.) 664;People ex rel. Broderick v. Morton, 24 App. Div. 563, 49 N. Y. Supp. 764;People ex rel. Deverell v. Musical Mut. Pro. Union, 118 N. Y. 109, 23 N. E. 129;Marion Beneficial Society v. Commonwealth, 31 Pa. 82;Hibernia Fire Engine Co. v. Harrison, 93 Pa. 264; State v. Commissioners, 11 Kan. 66; State ex rel. Race v. Cranney, 30 Wash. 594, 71 Pac. 50;State ex rel. Billings v. Lamprey, 57 Wash. 84, 106 Pac. 501;McClure v. Scates, 64 Kan. 282, 67 Pac. 856;People ex rel. Van Valkenburgh v. Sage et al., 3 How. Prac. (N. Y.) 56. There are several considerations, however, which convince us that this cannot be the correct interpretation of the statute. In the first place, all the decisions which seem to hold that damages for the original wrong may be recovered in the mandamus proceeding are either upon statutes judicially declared to follow the Statute of Anne (9th Anne, c. 20), or they stand upon the theory that mandamus is to all intents and purposes a civil action. The chapter of our Codes relating to mandamus has been part of our written law since the territory was organized (Bannack Statutes, p. 123 et seq.; Codified Statutes 1872, p. 139 et seq.; Revised Statutes 1879, p. 142 et seq.; Compiled Statutes 1887, p. 206 et seq.; Code Civ. Pro. 1895, § 1960 et seq.); and very early in our history it was settled that mandamus is not a civil action and that the Statute of Anne is not in force with us (Chumasero v. Potts, 2 Mont. 242, 258 et seq.; Territory v. Potts, 3 Mont. 364, 366). In Chumasero v. Potts, this court, touching the nature of mandamus said: “To call this an action or suit at law would certainly be a misnomer. * * * The manner in which the term civil action is used in these two sections [sections 522, 529, Civil Practice Act 1872; Rev. Codes 1907, §§ 7218, 7225] shows conclusively that our legislative assembly did not consider that the proceedings in mandamus were a civil action. * * * The civil action * * * has reference exclusively to private * * * wrongs. * * * What is the nature of the proceeding called mandamus? ‘It is not applicable as a redress for mere private wrongs.’ * * * It can be resorted to only in those cases where the matter in dispute, in theory concerns the public, and in which the public has an interest. * * * The enforcement of the writ may incidently, and as a result, affect private rights, but this is not the prime object of the issuance of the writ. * * * The attempt to classify the proceedings in mandamus is always futile. It is sui generis. Undoubtedly it may be called an extraordinary legal remedy, civil in its nature. * * *” But, “being a remedy to enforce public rights and not for the enforcement of private rights or the prevention or redress of private wrongs, it is not a civil action.” Again, in the recent case of State ex rel. Stuewe v. Hindson et al., 44 Mont. 442, 120 Pac. 489, we find the following: “This proceeding is essentially ex relatione. While Stuewe is nominally the complaining party, the taxpayers of Lewis and Clark county constitute the real party in interest; and if it can be said that from the allegations contained in the affidavit and the alternative writ the taxpayers of the county are entitled to relief of any character, which can be granted in this proceeding, it is the duty of the courts to extend that relief, whether this relator individually desires it, or the Attorney General opposes it. In our determination, we are not bound by the prayer of the relator, but may search the affidavit, and order such relief as the facts stated may warrant; for the relief is granted, not to Stuewe individually, but to the public--the real party in interest.” Inferences, therefore, founded upon the Statute of Anne or upon the hypothesis that mandamus is a civil action, can have no validity to require such a construction of section 7224, Revised Codes, as respondent here seeks to evoke.

And this conclusion finds collateral support in the further fact that in a mandamus proceeding a jury is not a matter of right, but of discretion. Any and all of the questions arising therein, whether of law or of fact, may be tried by the court without a jury, with or without a reference. Section 7219, Rev. Codes; Chumasero v. Potts, supra. If the relator must litigate therein any private right to damages which he may have against the respondent personally arising out of the...