Connolly v. Woods

• Decision Date: 15 November 1907
• Citation: 13 Idaho 591,92 P. 573
• Parties: JOHN J. CONNOLLY et al., Plaintiffs, v. W. W. WOODS, Judge, et al., Defendants
• Court: Idaho Supreme Court

92 P. 573

13 Idaho 591

JOHN J. CONNOLLY et al., Plaintiffs, v. W. W. WOODS, Judge, et al., Defendants

Supreme Court of Idaho

November 15, 1907

WRIT OF MANDATE-MOTION TO QUASH-AFFIDAVIT FOR WRIT-DEFECTS IN-REAL PARTY IN INTEREST-SERVICE OF COPY OF WRIT AND AFFIDAVIT ON-PROOF OF SERVICE-JUDICIAL ACT-LEGAL DISCRETION-DEFENSE-FRAUDULENT CORPORATION-EMINENT DOMAIN-PRIVATE USE AND BENEFIT-PUBLIC USE-JUDICIAL QUESTION-PLEADINGS-MOTION TO STRIKE-JURISDICTION-FUNCTION OF MANDAMUS-WRIT WHEN ISSUED.

1. Under the provisions of paragraph 5 of rule 28 of the rules of this court, when an application for any of the writs named in said rule is made where a court, judge or other officer or any board or tribunal is named in the affidavit as defendant such affidavit must disclose the name or names of the real party or parties in interest, or whose interest would be directly affected by the proceeding, and in such cases the applicant must cause to be served upon such party or parties in interest a certified copy of the affidavit and writ, the same as upon the defendant named in the affidavit, and must produce and file in the office of the clerk of this court the same evidence of service thereof.

2. The party prosecuting a special proceeding must be designated as the plaintiff and the adverse party the defendant. (Rev Stats., sec. 4955.)

3. Under the provisions of section 5, article 11 of the constitution of this state, all railroads are declared to be public highways and common carriers, subject to legislative control, and under its provisions it matters not what the intention of the incorporators of a railroad is or may be as to whether it is a common carrier or not, it is made a common carrier by said provisions, and in case it refuses to perform any of the duties that it owes to the public, it may be compelled to do so.

4. Where a railroad corporation organized under the laws of this state commences proceedings to condemn land for its right of way, the averments in the answer to the effect that such corporation is not a public service corporation and has been organized fraudulently and does not intend to serve the public is no defense to such proceedings.

5. Under the provisions of sections 4977 and 4978 of the Revised Statutes, mandamus cannot be used to correct any order of a court in passing upon a motion to strike out portions of a pleading if the court is acting within its jurisdiction to pass upon such motion.

6. The general rule is that it is not the function of mandamus to reverse orders of inferior courts or tribunals acting within their jurisdiction.

7. In case a court refuses to act in matters over which he has jurisdiction, he may be compelled to do so.

8. The case of Hill v. Morgan, Judge, 9 Idaho 718, 76 P. 323, cited and distinguished.

9. Under the provisions of our constitution the authority to exercise the right of eminent domain has been extended beyond that right in many of the states.

10. Under the provisions of our constitution and the law, the railroad company referred to in this opinion is a common carrier or a public service corporation, and cannot legally use its line of railroad for the private use and benefit of anyone, and if it refuses to perform its duties as a public service corporation, it may be compelled to do so.

11. Held, that the action of the court in striking certain paragraphs of the answer was a judicial act within its sound legal discretion and cannot be reviewed by writ of mandate.

(Syllabus by the court.)

ORIGINAL proceeding in this court for writ of mandate to compel the court of the first judicial district for the county of Kootenai to hear certain defenses presented by the defendants in the original action. Alternative writ issued and on return day answer and motion to quash filed by the defendants. Motion to quash sustained.

The persons who appeared on behalf of the defendants are not attorneys authorized to practice in this court, and would not have been permitted to present the case in this court, but for the presumption that some one of them was an attorney of this court. (See Eklund v. Lewis Lumber Co., ante, p. 581, 92 P. 532.)

Motion sustained, alternative writ quashed, and proceedings dismissed. Costs awarded to defendants.

C. L. Heitman, and C. W. Beale, for Plaintiffs.

If these defendants are precluded from putting in their defense against the unlawful attempt on the part of this railroad company to take their property, then the courts of justice of the state of Idaho are not open to every person therein, and no remedy is afforded to the injury of such person, his property, or his character. (Const., art. 1, sec. 18.) This court, in the case of Day v. Day, 12 Idaho 556, 86 P. 531, held said action 18 to be self-operating.

A defendant in a condemnation suit may always raise the question of whether the purpose for which the property is ever may be the reason why the purpose is not public may be sought to be expropriated is public in its nature. What-shown by such defendant, whose property is attempted to be taken. (New Orleans Terminal Co. v. Teller, 113 La. 733, 37 So. 624; Weidenfeld v. Sugar Run R. Co., 48 F. 615; Pittsburg W. K. R. Co. v. Benwood Iron Works, 31 W.Va. 710, 8 S.E. 453, 2 L. R. A. 680.)

Under the constitution and laws of the state of Idaho this railroad company has no right to condemn property for the private use of the B. R. Lewis Lumber Company. This lumber company cannot, by the mere subterfuge of an organization of a corporation pretending thereby to be a common carrier and a trustee of the public, condemn the lands of these defendants in the interest of such lumber company. (Ortiz v. Hansen, 35 Colo. 100, 83 P. 964.)

Under the statutes of the state of Idaho and the law as interpreted in the case of Hill v. Morgan, 9 Idaho 718, 76 P. 323-325, the peremptory writ of mandate should issue in this case to Judge Woods, compelling him to permit these defendants to make their defense against this unlawful appropriation of their property. The very gist of their answer was stricken out, and under the remaining allegations they were not permitted to make any proofs as to their material defenses.

In this matter there is not a plain, a speedy or an adequate remedy in the due course of the law left open to these defendants. (Holtun v. Greif, 144 Cal. 521, 78 P. 11.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an original application to this court for a writ of mandate to the Honorable W. W. Woods, judge of the first judicial district, commanding him to set aside an order made on June 11, 1907, appointing three commissioners to assess and determine the damages which the defendants, who are plaintiffs here, might sustain by reason of the condemnation and appropriation of certain land for a railroad right of way, and to allow plaintiffs in this proceeding to present their defense and evidence in support of the allegations of paragraphs 5 to 11, inclusive, of their answer, in the action brought for the condemnation of said railroad right of way, which paragraphs, with the exception of a portion of paragraph 8, were stricken out by the court on motion, and that the plaintiffs in this proceeding be allowed to have a hearing upon the merits of the controversy as set forth in said stricken paragraphs. The alternative writ of mandate was issued and served upon the said judge. Upon the return day the judge filed his answer and a motion to quash the alternative writ of mandate. The motion is based upon two separate grounds, the first of which is that the affidavit upon which the alternative writ was issued does not comply with paragraph 5 of rule 28 of the rules of this court, in that it does not disclose the name or names of all the real parties in interest, or the names of those whose interests would be directly affected by these proceedings, and that it does not appear that a certified copy of the affidavit and writ was served upon the real party in interest, and that no proof of any service has been filed in the office of the clerk of this court as required by said rule, and, second, that it appears from the records and files that the acts of which the petitioner complains were the judicial acts of a court of justice acting in his judicial capacity. In limine, this proceeding was commenced in this court under the following title, to wit: "The Idaho & Northwestern Ry. Co., Ltd., a Corporation, Plaintiff, vs. John J. Connolly, Louis I. Sterigere & Idaho Northwestern Ry. Co., Ltd., a Corporation, Defendants"--that being the title of the proceedings brought for the condemnation of said land for the railroad right of way. Upon the hearing, this court directed that all future proceedings in this case be in the name of John J. Connolly, et al., Plaintiffs, vs. W. W. Woods, Judge, et al., Defendants.

Under the provisions of section 4955 of the Revised Statutes, a party prosecuting a special proceeding must be designated as the plaintiff, and the adverse party the defendant. The case was heard both upon the motion and merits at the same time. A stipulation of facts was filed before the hearing. We will first proceed to dispose of the motion to quash, the grounds of which are above recited. It is contended under said motion that under paragraph 5 of rule 28 of the rules of this court, the affidavit for a writ of mandate must disclose the name or names of the real party in interest, whose...