Board of Com'rs of Shoshone County v. Mayhew

• Decision Date: 08 December 1897
• Citation: 5 Idaho 572,51 P. 411
• Parties: BOARD OF COMMISSIONERS OF SHOSHONE COUNTY v. MAYHEW, JUDGE
• Court: Idaho Supreme Court

51 P. 411

5 Idaho 572

BOARD OF COMMISSIONERS OF SHOSHONE COUNTY v. MAYHEW, JUDGE

Supreme Court of Idaho

December 8, 1897

MANDAMUS-WHEN WILL NOT LIE.-Mandamus will not lie to reverse the order of an inferior tribunal continuing the hearing of an action or proceeding before it, when such inferior tribunal is exercising a judicial discretion vested in it by law.

(Syllabus by the court.)

Original proceeding by mandamus.

Writ denied, with costs.

W. B Heyburn, for Petitioner.

The question to be presented upon this petition is whether or not this court will, by its writ of mandate, compel said judge to fix a time and place convenient to himself for the hearing of said appeal, as provided in section 1777 of the Revised Statutes, and the act of March 6, 1895. Section 1776 of said act provides that where an appeal, such as that under consideration, is taken, no act or proceeding of the board of county commissioners shall be valid, until after the expiration of the time allowed for appeal or until such appeal, if taken, shall be finally determined. It will appear from the petition that the proceedings proposed to be instituted for the purpose of determining the validity of the bonds involves a bonded indebtedness of $ 280,000; that according to the information given the commissioners in the opinion filed on October 13th, upward of $ 100,000 of this bonded indebtedness is invalid. I think it will also be conceded that if the bond issue is illegal, the commissioners are entitled to institute the proper proceedings to determine the question of their validity without being delayed. In matters of this kind it sometimes occurs that appeals are taken for the purpose of delaying action where financial benefits might result from such delay; and sometimes such appeals, while ostensibly in the name of a private citizen are taken in the interests of the bondholders, where their interests might be seriously affected in the event of an investigation as to the validity of the bonds. The act of the legislature, approved March 6, 1895, Session Laws, page 50 was evidently intended to provide a speedy remedy for determining the bona fides of such appeals, and the duty was imposed upon the judge of hearing such appeals in a summary manner, without waiting for the regular terms of court.

W. W. Woods, for Defendant.

Mandate. (Rev. Stats., sec. 4976.) Discretion not subject to mandate. (Ex parte McKissick, 107 Ala. 493, 18 So. 140; State v. Judges First Circuit Ct. Appeals, 47 La. Ann. 1516, 18 So. 510.) Does not lie to review proceedings until after final judgment. (Walsh v. St. Clair Circuit Judge, 107 Mich. 26, 64 N.W. 1045.) Must show clear legal right. (State v. La Grave, 22 Nev. 417, 41 P. 115; Am. & Eng. Ency. of Law, 95, and note; Hoole v. Kinkead, 16 Nev. 217.) See extreme case against discretion. (Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, 18 P. 766; Ex parte Davenport, 6 Pet. 661; Ex parte Denver etc. R. R. Co., 101 U.S. 711, 720, refused.) Although delay might forfeit lands. (Ex parte Parker, 120 U.S. 737, 7 S.Ct. 767; Am. & Eng. Ency. of Law, 108, note 2, p. 109, note 1; Barkdale v. Cobb, 16 Ga. 13; High on Extraordinary Legal Remedies, secs. 171, 176, 156; Tandall's Petition, 11 Allen (Mass.), 474.) Not to correct errors if court acts within its jurisdiction. (Am. & Eng. Ency. of Law, 119, note 3.) Even if it bears oppressively on relator. (State v. Mayer, 10 Mo.App. 540; also Denver etc. R. R. Co. Case, 101 U.S. 720.) In this case the court says: "This writ has never been extended so far nor ever used to control the discretion of a court of record of inferior jurisdiction acting within the scope of its jurisdiction."

QUARLES, J. Huston, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

QUARLES, J.

This is an original proceeding in this court by way of application for a writ of mandamus to compel the respondent, as district judge of the first judicial district, to hear at chambers an appeal from an order of the board of county commissioners of Shoshone county to the district court of said district in and for said county. It appears from the petition that said county commissioners made, on the thirteenth day of October, 1897, an order employing W. B. Heyburn as attorney to bring an action contesting the validity of certain bonds theretofore issued by said Shoshone county. From said order one G. Scott Anderson appealed, on the twenty-second day of October, 1897, to said district court, giving notice of appeal, and executing an undertaking on appeal. It further appears that on the twenty-eighth day of October, 1897, the said appellant, by his attorney, W. W. Woods, served upon the respondent, as said district judge, notice, in writing, of the pendency of such appeal, and that the clerk of the said board of commissioners did within five days thereafter transmit to the respondent, as said district judge, copies of all of the papers and proceedings relating to said appeal. It further appears that the petitioner here and its said attorney presented a petition to the respondent, as said district judge, praying that he fix a time for the hearing by him, as such district judge, at chambers, of said appeal, and the hearing on this petition was had on the thirtieth day of October, 1897, whereupon the respondent, as said district judge, made an order refusing to set a time for the hearing of said appeal at chambers, prior to the next term of court in the county from which the appeal is taken. Said order is in words and figures as follows: "This matter coming up before me at chambers at Wallace, in said Shoshone county, on an application, made by W. B. Heyburn on behalf of said county and personally, that said appeal should be heard speedily, and that I fix a time and place convenient to me to hear said appeal, and appellant being represented upon said motion by W. W. Woods, Esq., his attorney, and resisting said motion, and asking that the hearing of said appeal be postponed to the next regular term of the district court in Shoshone county, upon fully hearing said motion, and considering said petition, together with the exhibits presented therewith, said motion to fix a time and place for the hearing of said appeal before the next regular term of said district court is denied, and it is ordered that said appeal shall not be heard before said next regular term of said court, it being my opinion that no serious injury will result from such delay. Dated October 30, 1897. A. E. Mayhew, Judge of the District Court of the First Judicial District of Idaho."

The application made to the district judge to hear said appeal at chambers was made under section 1777 of the Revised Statutes, as amended by act of March 6, 1895 (Sess. Laws 1895, p. 51), which is as follows: "Such appeal may be taken to the district court, or the judge thereof, of the judicial district of which the county is a part by serving upon the clerk of the board a notice of appeal so referring to the act, order or proceeding appealed from as to identify it; that upon notice, in writing of such appeal being brought by any person to the attention of such judge, he shall fix the earliest time and a place, convenient to himself, for the hearing of such appeal, which may be heard in a summary manner before him, or his court, and, when in his opinion no serious injury will result from delay, the hearing shall be had during the next term of this court in the county from which the appeal comes. When the appeal is made for the purpose of protecting the interests of the county and of the people, no requirement shall be made of the appellant for security of costs, except that when the district judge shall be of opinion that such appeal is not made in good faith, but is for delay and vexation, he may require the appellant to enter into an undertaking with good sureties in an amount sufficient to secure the payment of costs, and in all other cases like undertaking shall be required."

The petition upon which the said application was made is as follows: "To the Honorable A. E. Mayhew, Judge of said court: Your petitioner respectfully represents that he is the W. B. Heyburn mentioned in the notice of appeal above mentioned as the person with whom the contract by the board of county commissioners was made, and to whom the warrant mentioned in said notice of appeal was issued. Theretofore, to wit, on the thirteenth day of October, 1897 at the special instance and request of the board of county commissioners of Shoshone county, your petitioner gave to said board his opinion in writing as to the validity of the bonded indebtedness of Shoshone county. That, upon said opinion being given, and considered by the said board of county commissioners, the said board advised your petitioner that they desired to retain his services for the purpose of testing the validity of the said bonded indebtedness, and requested your petitioner to state upon what terms and conditions he would perform such service; whereupon your petitioner, pursuant to said request, advised said board that he would charge them a retainer of $ 1,000, and that, in case the court should decide that any portion of said bond issue 'series 1' in excess of the sum of $ 15,000 is illegal, he would charge them a further sum of $ 5,000; and, in the case the court should decide that any portion in excess of $ 15,000 of bond issue 'series 2' was illegal, he would charge them a further sum of $ 3,000. And thereupon the said board of county commissioners agreed to the proposition of your petitioner with reference to fees in said matter, and passed a resolution in regard to the matter, a copy of which is attached to the notice of appeal in this case. That, pursuant to said employment of your petitioner, he has, since the said thirteenth day of ...