Boise-Kuna Irrigation District v. Hartson

• Decision Date: 30 December 1929
• Docket Number: 5480,5481
• Citation: 285 P. 456,48 Idaho 572
• Court: Idaho Supreme Court
• Parties: BOISE-KUNA IRRIGATION DISTRICT, NAMPA & MERIDIAN IRRIGATION DISTRICT, NEW YORK IRRIGATION DISTRICT and WILDER IRRIGATION DISTRICT, Plaintiffs, v. CLINTON H. HARTSON, Judge, Defendant, and CLINTON H. HARTSON, Judge, and WILLIAM E. WELSH, Water Master, Defendants

285 P. 456

48 Idaho 572

BOISE-KUNA IRRIGATION DISTRICT, NAMPA & MERIDIAN IRRIGATION DISTRICT, NEW YORK IRRIGATION DISTRICT and WILDER IRRIGATION DISTRICT, Plaintiffs, v. CLINTON H. HARTSON, Judge, Defendant, and CLINTON H. HARTSON, Judge, and WILLIAM E. WELSH, Water Master, Defendants

Nos. 5480, 5481

Supreme Court of Idaho

December 30, 1929

JUDGES-RESIGNATION OF-MANDAMUS-SUBSTITUTION OF SUCCESSOR.

1. Under C. S., sec. 7933, subd. 5, supreme court will take judicial notice of fact that district judge who has resigned is not now district judge.

2. District judge cannot, after having resigned, be required to perform judicial duties, since he must be judge at time when duty is required to be performed.

3. Successor in office of district judge cannot be punished for contempt for refusing to obey writ issued against former judge, his predecessor in office, since such judgment against former judge would have no validity against successor in office.

4. Where, in mandamus proceedings to compel judge to vacate certain orders in drainage district proceedings, and in proceeding for prohibition to restrain such judge from proceeding in such drainage district proceedings, defendant judge resigned, his successor in office cannot be substituted, since the rule is that proceedings will abate if against individual.

Original proceedings on application for a Writ of Mandamus also for a Writ of Prohibition. Motion to substitute successor in office of defendant Hartson. Denied, and proceedings dismissed.

Motion for substitution in each case denied, and actions in each of them dismissed, at plaintiffs' costs.

Rice &amp Bicknell, G. W. Grebe, Oppenheim & Lampert and McElroy & Chalfant, for Plaintiffs.

Defendants contend that this action is personal against Judge Hartson and cannot be continued in the name of his successor. We submit that the denial of our motion was an act of the judiciary of the state; that our cause of action immediately accrued; that neither Judge Hartson nor his successor personally has any interest in the case. We have not had opportunity to fully examine the cases cited under point 2 of points and authorities. Counsel cite 38 C. J., sec. 565, pp. 858, 859. But in sec. 566 the author says:

" . . . . the majority of cases lay down the rule that the proceedings do not abate by the resignation, removal, or expiration of the term of defendant officer, and may be enforced against his successor or successors in office. And in some jurisdictions it has been held that while a successor in office cannot be substituted for a respondent whose term has expired, the proceeding, nevertheless, does not abate by reason of the expiration of respondent's term but the writ may, nevertheless, be awarded to compel him to perform the duties which it was the object of the mandamus proceedings to enforce."

Charles F. Reddoch, P. E. Cavaney, Wm. M. Morgan, Earl B. Smith and Thomas L. Martin, for Defendant Hartson.

This court should, and we believe will, take judicial notice of the fact that Clinton H. Hartson, as one of the judges of the district court of the third judicial district of the state of Idaho, tendered his resignation to the Governor on the third day of August, 1929, which resignation was by the Governor accepted, and became effective October 1st, 1929; that the Governor upon such acceptance, appointed Hon. Charles F. Koelsch to said position, and he, on said first day of October aforesaid, succeeded to the office made vacant by resignation of Judge Hartson; that the application herein is a personal action, running against Judge Hartson personally, and he being no longer judge, Judge Koelsch, his successor, having never been requested to vacate the orders complained of, the neglect or refusal of his predecessor, is in no way binding upon him nor does the same give this court the right to issue the writ prayed for against such successor without his first being given an opportunity to perform the act or duty which the plaintiffs claim Judge Hartson failed to perform. (38 C. J., sec. 565, pars. 858, 859; Beachy v. Lamkin, 1 Idaho 50; Ex parte Rowe, 7 Cal. 175; Fox v. Trinidad Waterworks Co., 7 Colo. App. 401, 43 P. 1051; United States v. Boutwell, 17 Wall. (U.S.) 604, 21 L.Ed. 721; United States v. Butterworth, 169 U.S. 600, 18 S.Ct. 441, 42 L.Ed. 873; Richardson v. McChesney, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121; DeHaas v. Newaygo, Circuit Judge, 46 Mich. 12, 8 N.W. 587; State v. Board of State Canvassers, 32 Mont. 13, 4 Ann. Cas. 73, 79 P. 402.)

BABCOCK, District Judge. Budge, C. J., and T. Bailey Lee and Varian, JJ., concur. Givens, J., was disqualified.

OPINION

BABCOCK, District Judge.

The plaintiffs filed two verified complaints in this court, one to obtain a writ of mandate against the defendant, Clinton H. Hartson, Judge of the district court of the third judicial district, and the other to obtain a writ of prohibition against said judge and W. E. Welsh, water-master of District 12--A, Boise River.

Orders were made fixing a time for hearing thereof, upon notice to show cause why such writ should not issue, both returnable at the same time.

The allegations of the complaints are practically the same in each case. By the mandamus proceeding the plaintiffs seek to compel the defendant, Hartson, as district judge, to set aside and vacate certain alleged void orders made by him in the district court of Ada county in certain drainage district proceedings, and, by the writ of prohibition, to restrain said judge from proceeding in said drainage district proceedings, from the adjudication of the waters of the Boise River, and to prohibit the defendant, Welsh, as water-master, from distributing the waters under said void orders.

The defendant, Hartson, filed motions to dismiss and demurrers in each case, raising practically the same questions

The defendant, Welsh, filed an answer to the complaint for a writ of prohibition, in which he says he is ready and willing to distribute the waters of said water district pursuant to law and the orders, judgment and decrees of the courts having jurisdiction thereof.

Judge Hartson, having resigned as district judge, the plaintiff made a motion, in each case, for an order permitting them to substitute his successor in office.

Both cases were consolidated at the hearing and may be considered and determined together.

The motion for a substitution was resisted by the defendants, it being the position and contention of counsel that the acts complained of in each case were personal to Judge Hartson, and that the court will take judicial notice that he has resigned and is no longer a district judge; that the actions abate, and that neither the writ of mandate nor prohibition can be directed to his successor in office without first requesting him to perform the act or duty which plaintiffs claim devolved upon Judge Hartson.

Under subd. 5 of sec. 7933, C. S., this court will take judicial notice of the fact that Judge Hartson is not now district judge. (State v. Burtenshaw, 25 Idaho 607, 614, 138 P. 1105.)

It would be futile to issue the writ against Judge Hartson, formerly district judge, for the reason that he cannot be required to perform judicial duties unless he is a judge at the time when the duty is required to be performed. (Bailey v. Baker, 33 Cal.App. 452, 165 P. 543; Leach v. Aitken, 91 Cal. 484, 28 P. 777.) Nor could the successor in office of Judge Hartson be punished for contempt for refusing to obey a writ issued against Judge Hartson, his predecessor in office, and who had gone out of office when the writ issued, as such judgment against Judge Hartson would have no validity against his successor in office. (Ex parte Truman, 124 Cal. 387, 57 P. 223; Sargent v. Cavis, 36 Cal. 552.)

As to whether or not the proceedings abate upon the retirement of Judge Hartson presents a question upon which there is a sharp conflict of authority. It is stated in 38 C. J. 858, 859, sec. 564, that while one line of cases asserts that if pending the proceedings the term of office of the defendant terminated, the proceedings abate, another line of cases with equal emphasis denies that under such circumstances the proceedings abate. And whichever view may be taken it will be supported by decisions of respectable courts and sustained by many well-reasoned authorities; that the real question in dispute seems to be whether the proceedings are against the individual or against the office; and in answer to the question the rule supported by the great weight of authority may be laid down as follows: If against the individual the proceedings will abate; otherwise, they will not.

The supreme court of the United States, prior to an act of Congress, passed February 8, 1899 (30 Stat. 12, C. S., sec. 1594), under which successor of United States officers who have been sued may be substituted for them upon a proper showing, have repeatedly held such an action to be against the individual and personal, and that substitution should not be allowed. (Irwin v. Wright, 258 U.S. 219, 42 S.Ct. 293, 295, 66 L.Ed. 573; Pullman Co. v. Croom, 231 U.S. 571, 34 S.Ct. 182, 58 L.Ed. 375; United States v. Butterworth, 169 U.S. 600, 18 S.Ct. 441, 42 L.Ed. 873; United States v. Boutwell, 84 U.S. 604, 17 Wall. (U.S.) 604, 607, 21 L.Ed. 721, 722; Caledonian Coal Co. v. Baker, 196 U.S. 432, 25 S.Ct. 375, 49 L.Ed. 540.)

In the case of United States v. Boutwell, supra, the leading case and the one most frequently cited in support of the doctrine, Justice Strong, delivering the opinion of the court, said:

"The office of a writ of mandate is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or another. It may, as alleged in the present case,...