Buggeln v. Doe

• Citation: 78 P. 367,9 Ariz. 81
• Decision Date: 29 October 1904
• Docket Number: Civil 859
• Parties: MARTIN BUGGELN, Plaintiff, v. E. M. DOE, as District Attorney of County of Coconino, Territory of Arizona, Defendant
• Court: Arizona Supreme Court

78 P. 367

9 Ariz. 81

MARTIN BUGGELN, Plaintiff, v. E. M. DOE, as District Attorney of County of Coconino, Territory of Arizona, Defendant

Civil No. 859

Supreme Court of Arizona

October 29, 1904

ORIGINAL APPLICATION for Writ of Mandamus.

The facts are stated in the opinion.

T. J Norton, and U. T. Clotfelter, for Petitioner.

The demurrer to the petition should be overruled because: 1. Upon the facts alleged a positive duty was imposed upon defendant which he failed to discharge; and 2. Even if a positive duty was not imposed, still defendant was guilty of such an abuse of discretion that this court can properly direct the issuance of the writ prayed.

Upon the facts alleged a positive duty was imposed upon defendant which he failed to discharge.

Defendant's argument in support of his demurrer to the petition is that by virtue of the terms of section 3794 of the Revised Statutes of Arizona he is clothed with the right to exercise a discretion and a quasi-judicial function; that in refusing to institute the proceeding requested by plaintiff he (defendant) has acted, and therefore this court has no right to issue a writ of mandate to compel him to exercise such discretion and judicial function in a manner other than he has exercised it.

Defendant had neither the right to exercise a discretion nor a judicial function.

If upon the facts stated in the petition, a duty was imposed upon defendant by virtue of the terms of section 3794 of the Revised Statutes of Arizona, it follows as a proposition of law that defendant's assumption, that in refusing to institute quo warranto proceedings he exercised a discretion and a quasi-judicial function, is erroneous. Being erroneous his whole argument must fail.

"An action may be brought by the district attorney, in the name of the territory, upon his own information or upon the verified complaint of any person, in the district court sitting for the county for which he is district attorney against any person who usurps, intrudes into, or who unlawfully holds or exercises any public office or any franchise within said county; and it is his duty to bring the action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised: Provided, that any person claiming such office or franchise may bring such action in his own name by first applying for and obtaining his leave of said court so to do: And provided, further, that if the office be a territorial office, the attorney-general of the territory shall have like power herein vested in district attorneys." Rev. Stats. Ariz. 1901, sec. 3794.

"May" in this section means "must."

In the case of Mason v. Fearson, 9 How. 248, 13 L.Ed. 125, 130, it is said: "The only plausible argument which remains to be considered against the design to make this power to sell only enough to pay all the taxes mandatory, as it had before been construed by this court, rests on the supposed incorrectness of the general rule of construction, as applied to the facts here, which holds the expression 'may' sell, or 'it is lawful' to sell, in a particular way, to be imperative. But if we look to the true test of the principle involved in the question, no great doubt can remain. This general rule may seldom be correct, in a popular sense, as to such words when used in contracts and private affairs. But under the circumstances existing here, it is founded on sound principles and numerous precedents. The form of expression adopted here, it must be remembered, is employed in laws, and not in contracts, and of course, if a well-established construction had been before given to it in laws by the courts under certain circumstances, it must be presumed to have been well known, and intended here under like circumstances. What are these circumstances? Whenever it is provided that a corporation or officer 'may' act in a certain way, or it 'shall be lawful' for them to act in a certain way, it may be insisted on as a duty for them to act so, if the matter, as here, is devolved on a public officer, and relates to the public or third persons. Thus, in Rex and Regina v. Barlow, (2 Salk. 609), 'Where a statute directs the doing of a thing for the sake of justice or the public good, the word "may" is the same as the word 'shall'; thus 23 Hen. VI says the sheriff may take bail; this is construed he shall, for he is compellable so to do.' (Carth. 293.) On this, see further The King v. The Inhabitants of Derby, Skin. 370; Blackwell's case, 1 Vern. 152-154; 2 Chit. 251; Dwarris on Statutes, 712; Newburg T. Co. v. Miller, 5 Johns. Ch. 113, 9 Am. Dec. 274; City of New York v. Furze, 3 Hill, 612, 614; Minor v. The Mechanics' Bank, 1 Pet. 64, 7 L.Ed. 47. Without going into more details, these cases fully sustain the doctrine, that what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds he ought to do. The power is conferred for their benefit, not his; and the intent of the legislature, which is the test in these cases, seems under such circumstances to have been 'to impose a positive and absolute duty.'"

In the case of Board of Supervisors v. United States ex rel State Bank, 4 Wall. 435, 18 L.Ed. 419, 422, 423, the court said: "The important question in the case is, whether the respondents are compellable to levy and collect, by taxation, the amount specified in the order of the court below. The writ if issued, must conform to the order. The court below proceeded upon the act of February 16th, 1863. We have not found it necessary to consider any of the other acts referred to in the briefs. That act declares that 'the board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such indebtedness.' The counsel for the respondent insists, with zeal and ability, that the authority thus given involves no duty; that it depends for its exercise wholly upon the judgment of the supervisors; and that judicial action cannot control the discretion with which the statute has clothed them. We cannot concur in this view of the subject. Great stress is laid by the learned counsel upon the language, 'may, if deemed advisable,' which accompanies the grant of power, and, as he contends, qualifies it to the extent assumed in his argument. In King v. Inhab. of Derby, Skin. 370, there was an indictment against 'divers inhabitants' for refusing to meet and make a rate to pay 'the constables' tax.' The defendants moved to quash the indictment, 'because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be." The court held that 'may,' in the case of a public officer, is tantamount to 'shall,' and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ, this is but an aggravation of his contempt. In Rex and Regina v. Barlow, 2 Salk. 609, there was an indictment upon the same statute, and the same objection was taken. The court said: 'When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall: thus, 23 Hen. VI says "the sheriff may take bail." This is construed he shall, for he is compellable to do so.' These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries. In Mayor of New York v. Furze, 3 Hill, 614, and in Mason v. Fearson, 9 How. 248, 13 L.Ed. 125, the words 'it shall be lawful' were held also to be mandatory. See Attorney General v. Lock, 3 Atk. 164; Blackwell's case, 1 Vern. 152; Dwarris on Statutes, 712; Malcolm v. Rogers, 5 Cow. 188, 15 Am. Dec. 464; Newburg T. Co. v. Miller, 5 Johns. Ch. 113, 9 Am. Dec. 274; Js. of Clark Co. Ct. v. T. Co., 11 B. Mon. 143; Minor v. Mech. Bank, 1 Pet 64, 7 L.Ed. 47; Com. v. Johnson, 2 Binn. 275; Virginia v. Justices, 2 Va. Cas. 9; State v. Chase, 5 Ohio St. 528; Coy v. Lyons, 17 Iowa 1, 85 Am. Dec. 539. The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language -- whenever the public interest or individual rights call for its exercise -- the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose 'a positive and absolute duty.' The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require the latter category. People v. Superior Court, 5 Wend. 125; s. c. 10 Wend. 289; People v. Vermilyea, 7 Cow. 398; Hull v. Supervisors, 19 Johns. 260, 10 Am. Dec. 223. The circuit court properly awarded a...