Hartman v. Carter

• Decision Date: 08 November 1978
• Docket Number: No. 77-132-A,77-132-A
• Citation: 393 A.2d 1102,121 R.I. 1
• Parties: Allan R. HARTMAN v. James A. CARTER, Controller of the State of Rhode Island. ppeal.
• Court: Rhode Island Supreme Court

Page 1102

393 A.2d 1102

121 R.I. 1

Allan R. HARTMAN v. James A. CARTER, Controller of the State of Rhode Island.

No. 77-132-Appeal.

Supreme Court of Rhode Island.

Nov. 8, 1978.

[121 R.I. 5] Aram K. Berberian, Cranston, for plaintiff.

Julius C. Michaelson, Atty. Gen., Richard B. Woolley, Sp. Asst. Atty. Gen., for defendant.

OPINION

KELLEHER, Justice.

In this Superior Court civil action the plaintiff sought a writ of mandamus which would have compelled the defendant (the controller) to refund a fine paid in a previous criminal action that the plaintiff had successfully appealed. The plaintiff also sought an award of his statutory costs, to wit, $5.10.

The record indicates that in July 1972 plaintiff paid a $20 fine to the Wardens' Court of New Shoreham. The fine was imposed after the warden had found plaintiff guilty of violating a municipal ordinance which bars drinking in public places. The plaintiff appealed his conviction to the Superior Court, ¹ where the charge was ultimately dismissed. After the clerk's efforts to have plaintiff reimbursed for the money he paid to the New Shoreham court proved unsuccessful, plaintiff brought this mandamus action. When the case came on for hearing in the Superior Court, the controller conceded that plaintiff should be reimbursed, and judgment was then entered directing the controller to process the clerk's voucher. The judgment contains another stipulation, which states: "The plaintiff is entitled to no costs on this judgment." This stipulation has precipitated plaintiff's appeal.

The present controversy might well be considered as a sequel to our recent ruling in Gormally v. Cannon, R.I., 383 A.2d 582 (1978), where we ruled that a plaintiff who is successful in his effort to obtain a writ of mandamus cannot recover damages in such a proceeding. Gormally had prevailed in a mandamus proceeding in which he asked that certain officials of the Rhode Island Department of Health be ordered to permit him to examine records relating to the inspection of certain nursing homes. The trial justice ordered the writ to issue but refused Gormally's request for damages. In considering his appeal, we reviewed the workings of mandamus as they existed at common law, actions taken by Parliament in enacting the Municipal Offices Act (1710), 9 Ann. c. 20, and the Prohibition and Mandamus Act (1831), 1 Will. IV, c. 21, as well as G.L. 1956 (1970 Reenactment) § 43-3-1, which stipulates that, in the absence of a statute to the contrary, those English statutes which were in force in this state prior to the Declaration of Independence will be considered to be part of Rhode Island's common law. Following this review, we ruled that, in the absence of a statutory authorization, damages could not be recovered in a mandamus ² action because the common law afforded no such remedy.

Much of what we said in Gormally can be said of the case at bar. Since at common law costs were not allowed in a mandamus action, they can be allowed solely on the authority of some pertinent statute. Whipple v. Wales, 47 R.I. 487, 134 A. 22 (1926). An examination of the relevant statutes and rules of court makes it clear that a trial justice who orders the issuance of a writ of mandamus may also award costs. General Laws 1956 (1969 Reenactment) § 9-22-5 provides that "(i)n civil actions at law, the party prevailing shall recover costs, except where otherwise specially provided, or as justice may require, in the discretion of the court." Rule 81(d) of the Superior Court Rules of Civil Procedure states that actions to obtain relief by writ of mandamus "shall be according to these rules." Rule 54(d) tracks § 9-22-5 and specifies that "(c)osts shall be allowed as of course to the prevailing party as provided by statute * * * ."

In determining whether a complainant who seeks a writ of mandamus has instituted a "civil action at law," we need only refer to State ex rel. Montaquila v. Avery, 90 R.I. 305, 157 A.2d 886 (1960), where this court said that mandamus had no equitable origin because in England it issued out of the Court of King's Bench rather than the Court of Chancery, while in the United States mandamus had been variously classified as different actions at law but never as a suit in equity or as one being in the nature of an equitable proceeding. Having in mind the mid-1960 adoption of the Superior Court Rules of Civil Procedure with its accompanying merger of law and equity and the abolition of the forms of action, today in this jurisdiction there is but one form of action, a "civil action," Super.R.Civ.P. 2. Consequently, we have no doubt that a Superior Court mandamus proceeding is a "civil action," and to that extent the common-law bar against costs in mandamus actions has been lowered considerably.

Having ruled that the costs may be awarded to plaintiff, we must now determine whether the trial justice abused his discretion in taking the position that he did. It is well settled that a Superior Court justice's exercise of discretion in these matters will not be disturbed by this court absent a...