Crocker v. Justices of Superior Court

• Decision Date: 02 March 1911
• Citation: 94 N.E. 369,208 Mass. 162
• Parties: CROCKER et al. v. JUSTICES OF SUPERIOR COURT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 162

94 N.E. 369

CROCKER et al. v. JUSTICES OF SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1911

COUNSEL

H. F Hurlburt, for petitioner Leach.

C. F Choate, Jr., for petitioner Crocker.

J. F Sweeney, for petitioner Conroy.

Joseph C. Pelletier, Dist. Atty., for respondents.

OPINION

RUGG, J.

The petitioners were indicted for a felony, Seasonably they presented motions, suggesting that because of 'local prejudice and other causes' they could not have an impartial trial in the county of Suffolk, and asking that the proceeding be removed to another county for trial. Thereafter, an order was entered by a justice of the superior court, which as amended was as follows: 'I refuse to hear the parties on the several motions of the defendants that the court order a trial of these indictments in some county other than the county of Suffolk, believing that I have no jurisdiction to entertain or to grant such motions.' This is a petition for a writ of mandamus to compel the superior court to entertain and decide the motions.

The first question presented is whether mandamus lies in a case of this sort. It becomes necessary to determine the meaning of the indorsement made in the superior court upon the motions filed by the defendants there, who are petitioners here. It is perhaps susceptible of two constructions, one that the court has considered the subject-matter, and ruled as matter of law that it has no jurisdiction of such motions, the other that the court hasd abdicated its province and refused to exercise its judicial function, adding by way of parenthesis that its excuse is a belief that it has no jurisdiction in the premises. Ordinarily we should be loath to adopt the latter construction. But the language appears to be strongly phrased with an evident intent to convey that thought, and an examination of the papers discloses that, as originally entered, an unequivocal ruling of law was made disposing of the motion. If that had stood as the final action of the Superior Court, the only remedy of the defendants would have been by exception or appeal under Rev. Laws, c. 219, §§ 32, 34, and 35. But it did not so stand and the action of that court was changed to a statement of declination even to hear the parties. We are constained therefore to interpret the order as a refusal to act at all upon the motions.

The writ of mandamus is an extraordinary remedy and is usually granted only when no other adequate relief can be afforded. It cannot be employed to supersede an appeal or exceptions in ordinary cases, and does not lie to review a final judgment. Proceedings of inferior tribunals within their jurisdiction in the exercise of the power confided in them cannot be revised in this way. It does not lie to correct errors committed in the course of trial, even though there be no remedy by exception or appeal. Selectmen of Gardner v. Templeton St. Ry. Co., 184 Mass. 294, 297, 68 N.E. 340; Finlay v. Boston, 196 Mass. 267, 270, 82 N.E. 5; McCarty v. St. Comm'rs, 188 Mass. 338, 74 N.E. 659; In re Key, 189 U.S. 84, 23 S.Ct. 624, 47 L.Ed. 720. But one of the ancient offices of this writ was to compel action by lower judicial tribunals respecting matters properly before them and within their jurisdiction. If such courts decline to exercise their judicature for any reason or to decide matters pending before them mandamus has always been regarded as the appropriate means by which to set in motion their jurisdictional power. It lies to compel the performance of whatever appertains to the duty of lower courts, where there has been for any reason a refusal to act. Its agency in cases of this class is confined to setting in motion the judicial activities so that a decision will be reached, but it does not extend to any direction as to what that decision ought to be. Chase v. Blackstone Canal Co., 10 Pick. 244; Rice v. Commissioners, 13 Pick, 225; Morse, Pet'r, 18 Pick. 443; Carpenter v. County Com'rs, 21 Pick. 258; Smith v. Boston, 1 Gray, 72. See, also, In re Winn, 213 U.S. 458, 29 S.Ct. 515, 53 L.Ed. 873. In re Parker, Pet'r, 131 U.S. 221, 9 S.Ct. 708, 33 L.Ed. 123; Ex parte Harding, 219 U.S. 363, 371, 31 S.Ct. 324, 55 L.Ed. 252; Rex v. Stepney Corporation, [1902] 11 K. B. 317, 321. It was the plain duty of the justices of the superior court to consider and exercise their judicial faculty upon the subject-matter presented by the motions filed in that court, and either overrule them as matter of law or in the exercise of a sound judicial discretion determine whether they ought to be granted. French v. Jones, 191 Mass. 522, 78 N.E. 118, 9 L. R. A. (N. S.) 1096, 114 Am. St. Rep. 619; Cheney v. Barker, 198 Mass. 356, 84 N.E. 492, 16 L. R. A. (N. S.) 436. As we construe the indorsement of the superior court upon the motions to be a mere refusal to act, and not the expression in pursuance of judicial authority of any opinion or ruling, Rev. Laws, c. 219, §§ 32 and 35, authorizing an aggrieved defendant in a criminal case to appeal from a judgment of the superior court founded upon matter of law apparent upon the record and to allege exceptions to an opinion, ruling, direction or judgment upon any question of law, does not apply, and there appears to be no other adequate remedy open to the petitioners except this petition.

The issuance of the writ of mandamus is rarely, if ever, matter of right, and commonly rests in the sound judicial discretion of the court. It becomes necessary to determine whether the superior court in fact does have jurisdiction to entertain and decide the motions, for the reason that the writ ought not to issue when it can subserve no useful purpose to the petitioners.

The question to be determined is whether the superior court has jurisdiction to order a change of the place of trial from one county to another, if and when satisfied that a fair and impartial trial cannot be had within the county where the venue is laid in the indictment. This inquiry has never before been expressly presented for consideration and determination in this commonwealth. 'But this, so far from affording a reason why it should not be fully examined rather requires that it should be considered with great care and attention, as establishing an important precedent.' Washburn v. Phillips, 2 Metc. 296, at 297. It is not covered by the terms of any statute, although certain relevant statutes will be referred to hereafter. The decision must rest upon the general common-law power of the court. It can be determined only upon consideration of the powers of courts of general jurisdiction at common law and of our own courts in the colony and province of Massachusetts Bay and under the Constitution. It is essential first to examine the powers possessed and exercised by the courts of common law in England prior to the emigration of those who first settled this commonwealth and brought with them as a part of their heritage the common law as it existed in England. We resort to a consideration of the common law of England prior to the grant of the provincial charter in 1691, because as was said in Com. v. Knowlton, 2 Mass. 530, at 534: 'Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged inapplicable to their new state and condition. The common law, thus claimed, was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice. So much, therefore, of the common law of England as our ancestors brought with them, and of the statutes then in force, amending or altering it. Such of the more recent statutes as have then been adopted in practice, and the ancient usages aforesaid, may be considered as forming the body of the common law of Massachusetts which has submitted to some alterations by the acts of the provincial and state Legislature, and by the provisions of our Constitution.' This language was quoted with approval in Sackett v. Sackett, 8 Pick. 309, 316, Com. v. Leach, 1 Mass. 61, and Phillips v. Blatchford, 137 Mass. 510, 513. This always has been the unquestioned law of the commonwealth. The system of reporting decisions of the higher courts prior to the main emigration to this country between 1620 and 1640 and prior to the granting of the second charter in 1691 and up to the Declaration of Independence was not so perfect as now and in order to ascertain what was the common law then and before the Revolution, it is profitable and permissible to examine decisions of English courts since that date, not as binding authorities but as strongly persuasive of what the common law was, because they are determinations by men of experience and learning who have continued to live in the atmosphere of the home of the common law, seeking to expound its principles under the heavy responsibilities of a judicial office. It was the common law that the indictment for a crime must be found and tried in the county where it occurred, and ordinarily this principle was applied with great strictness. Nevertheless in an early decision, Farewether's Case, Croke, Charles I, 348, decided in 1634, during a discussion as to the place of the trial the clerk of the crown is reported to have said: 'That divers precedents have been of such trials upon indictments in banco without any consent of the parties and against the will of the prosecutors and in more remote counties.' The first trace of the practice which we have...