Davidson v. Whiteiiill

• Decision Date: 11 February 1914
• Parties: DAVIDSON v. WHITEIIILL et al.
• Court: Vermont Supreme Court

89 A. 1081

87 Vt. 499

DAVIDSON

v. WHITEIIILL et al.

Supreme Court of Vermont. Caledonia.

Feb. 11, 1914.

Certiorari by Robert A. Davidson to review judgment and orders of G. D. Whitehill and others, license commissioners, granting a second liquor license to James Frost. Petition dismissed.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Theriault & Hunt, of Montpelier, for petitioner.

Rober W. Simonds, J. Rolf Searles, and Arthur L. Graves, all of St. Johnsbury, for petitionee.

TAYLOR, J. This is a petition for writ of certiorari to review the judgment and orders of the petitionees, the license commissioners of the town of Groton, granting a second-class license to one James Frost to sell intoxicating liquors in said town. The petition was entered and docketed on May 7, 1913. At the October term following, the case was not assigned for hearing, and, the petitionees not having entered an appearance, was continued to the November term, at which term petitionees Whitehill and D. G. Welch filed their joint demurrer and answer, and also a motion for the appointment of a referee to try and determine the issues of fact raised by the answer. Whereupon the petitioner filed a motion to strike from the record and files said joint demurrer and answer and said motion for reference. The motion to strike is based upon several grounds, among which are: (1) That the matter in demurrer is out of time; (2) that the demurrer and answer are filed jointly; (3) that the answer is out of time; (4) that the answer is not the answer of the board of license commissioners, but of two individual members thereof; (5) that the answer is not accompanied by the record of the license commissioners.

The common law relating to certiorari, so far as applicable to our situation and circumstances, is our guide. Our statute (P. S. 1324) merely gives this court jurisdiction of prerogative writs including certiorari, but prescribes no rules of procedure. By manifest implication the function and manner of use of the proceeding, as practiced in the common-law courts of England, was adopted as part of the common law. State ex rel. Page v. Smith et al., 48 Vt. 266, 282; Clement v. Graham, 78 Vt 290, 304, 63 Atl. 146, Ann. Cas. 1913E, 1208. But many of the common-law rules of procedure are rendered obsolete by our practice of hearing the merits of the case on the petition for the writ. The rules of practice in county court do not apply, and an examination of our cases fails to disclose any well-settled practice in this court with reference to pleadings subsequent to the petition.

It is settled by repeated decisions that the issuing of the writ is largely a matter of discretion, from which fact has sprung the practice of hearing the merits of the case upon the petition for the writ, and practically deciding the whole case upon the granting or refusing of the writ. It follows that under our practice an important function of the so-called answer is to bring up the record, to quash which the writ is sought. The inquiry in the application for certiorari is based on the record (State ex rel. Page v. Smith et al., 48 Vt. 260, 282), and, in case it is not sufficiently set forth in the petition—which for obvious reasons in many cases cannot be done—the petitionee, should embody it in his answer, or, in other words, should make return of the record (Stumpf v. Board of Supervisors, 131 Cal. 364, 63 Pac. 663, 82 Am. St. Rep. 350; City of Lowell v. County Com'rs, 146 Mass. 403, 16 N. E. 8).

In the case at bar the answer does not recite the record. It admits or denies the facts alleged in the petition, and alleges further facts, which, if true, the petitionees contend would defeat the Issuing of the writ; and, that the facts in issue may be determined, they ask for a reference. The granting or refusing of the writ being a matter of discretion, the answer is not confined to bringing the record before the court, and to admitting or denying the allegations of the petition; but the exigencies of the case may require the allegation of facts outside the record upon which an issue may be joined that will necessitate the taking of testimony in such manner as the court may order. This was the case in Sowles v. Bailey, 69 Vt. 277, 37 Atl. 751.

Whether the defects in the answer relied upon by the petitioner support the motion to strike, or whether he should move for further answer, we do not decide.

The objection to joining the demurrer and answer presents a question of some difficulty when viewed as a technical question of pleading. At common law the sufficiency of the petition seems to have been raised by a motion to quash or a motion to dismiss in the nature of a demurrer to the petition or to the writ, and the terms "quashal" and "dismissal" are used interchangeably in the books. 1 Tidd's Pr. 403. It is a motion addressed to the discretion Of the court, to be granted or denied as justice may require. McDonald v. McDonald, 141 Ill. App. 259; Ullman v. Sandell, 158 Mich. 396, 122 N. W. 617. Like a demurrer it challenges the relator's right to relief, assuming that all the material facts of the petition, so far as well pleaded, are true. Schmitt v. Hines Lumber Co., 124 Ill. App. 319; 4 Standard Ency. of Proc. 933. At common law the court quashed the writ only after a return had been made because, it is said, a court cannot quash a writ that is not before it. 1 Tidd's Pr. 403; Winegrath v. Mayor, 77 N. J. Law, 448, 72 Atl. 91. In some jurisdictions it is held that a motion to quash more properly lies before a return is made (Flournoy v. Payne, 28 Ark. 87; Jordan v. Slaughter, 10 Tex. 318; People v. McCellan, 107 App. Div. 272, 94 N. Y. Supp. 1107), and in Illinois that, it being in effect a demurrer to the petition, the motion is waived, if not made before return (Kusel v. Chicago, 121 Ill. App. 469).

With reference to the motion to strike off the demurrer as being out of time, at common law the practice seems to have been to require objections to the petition to be made at the return term, and, if not then made, they were waived. This is the practice in several sister jurisdictions. Hodge v. Dillon, Cooke (Tenn.) 279; Smith v. Hearne, 2 Stew. & P. (Ala.) 81; Howth v. Shumard (Tex. Civ. App.) 40 S. W. 1079. But at common law, and very likely in the states where this strict rule prevails, the merits were not heard on the petition. The proceeding on the petition was in the nature of an inquiry whether there was ground for having the record returned. Under such a practice the necessity for a strict rule as to dilatory objections is more potent than under ours. As has been seen, the purpose of the demurrer is to challenge the right of the petitioner to the writ on the facts alleged. The petition must state facts sufficient to authorize the issuance of the writ, and on its face present a meritorious case. Only matters assigned as error in the petition will be considered upon hearing, and, if the petition contains no assignment of error, it presents nothing with which this court can deal. 4 Standard Ency. of Proc. 907, 910.

The petition for the writ being addressed to the discretion of the court, and, if the petition contains no assignment of error, there being nothing before it with which this court can deal, it is but proper exercise of discretion that we should examine the petition to see if it alleges substantial grounds of error in the proceedings below, when our attention is called to claimed fatal defects therein. In a proceeding of this character it would be idle to sustain the petitioner's objections to the pleadings with the only result of postponing consideration of questions going to the merits of the case with the added expense and delay. Accordingly the demurrer will be treated as a motion to quash, which, by analogy to proceedings for writ of mandamus, may be interposed, at any time before the writ is awarded, to take advantage of substantial defects in the petition. On such a motion the proceedings fall for want of proper foundation to sustain them. See Clement v. Graham, 78 Vt. 290, 305, 63 Atl. 146, Ann. Cas. 1913E, 1208, and cases there cited.

The petition is challenged upon grounds that raise the questions: (1) Whether a board of license commissioners, in granting licenses, acts in a judicial capacity; and, if so, (2) whether the statute disqualifying certain persons from acting in a judicial capacity (P. S. 1224) relates to officers or boards in the discharge of administrative affairs.

At common law certiorari lies only to inferior courts and officers exercising judicial powers; not only so, but the act to be reviewed must be judicial in its nature, and not merely ministerial. 4 Dillon, Mun. Corp. § 1593, and note. Practically all the courts of this country follow the common-law rule, and hold that the purpose of the writ is to review none but judicial or quasi judicial acts, and that it can in no case extend to reviewing acts that are ministerial, legislative, or executive. When there is a new or summary jurisdiction created, the proceeding so authorized, whether in court or not, if of a judicial or quasi judicial character, and not subject to review by other means, may be reviewed by this writ. There is room for great difference of opinion, however, whether certain proceedings are judicial or not. Confusion arises in drawing the line between judicial and other acts when the inquiry relates to officers or boards of municipalities, whose functions are primarily of an administrative character, and there is considerable diversity of judicial opinion respecting its exact location.

1. Does a board of license commissioners act in a judicial capacity in granting or refusing applications for license? It must be conceded at the outset that acts of a judicial character are not confined to the courts. It is the quality of the act, and not the official classification of the actor, that determines this question. When considering...