Knights v. Burrell

• Decision Date: 14 October 1920
• Citation: 236 Mass. 336,128 N.E. 637
• Parties: KNIGHTS v. BURRELL, Treasurer and Receiver General.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 336

128 N.E. 637

KNIGHTS

v.BURRELL, Treasurer and Receiver General.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 14, 1920.

Case Reserved from Supreme Judicial Court, Worcester County.

Petition for writ of mandamus by William W. Knights against Fred J. Burrell, as Treasurer and Receiver General of the Commonwealth, wherein plea in abatement was filed, and petitioner moved to amend his petition, by substituting as respondent the original respondent's successor in office. On reservation by a single justice of the Supreme Judicial Court for the determination of the full court. Plea in abatement sustained, and motion to amend denied.

Philip Nichols, of Boston, for petitioner.

J. Weston Allen, Atty. Gen., and E.H. Abbot, Jr., Asst. Atty. Gen., for respondent.

RUGG, C. J.

This is a petition for a writ of mandamus against the person who at the time it was filed on July 21, 1920, held the office of treasurer and receiver general of the commonwealth. In substance and effect the petition alleges that the defendant is about to, and will unless restrained by the court, pay large sums of money out of the treasury of the commonwealth to divers cities and towns in the commonwealth in accordance with the terms of St. 1919, c. 363, and that that statute is unconstitutional, and that such payments will be in derogation of the rights of the petitioner. The case was reserved on August 25, 1920, upon the petition and demurrer, for the determination of this court. When it came on to be argued at the bar, the Attorney General offered for filing a plea in abatement setting out that Fred J. Burrell, the person named as defendant in the petition, resigned from the office of treasurer and receiver general on September 3, 1920, and on that date ceased to be such officer. Certificate of the acting secretary under the seal of the commonwealth to the same effect was presented to the court. The fact is as thus stated. Thereupon the petitioner offered for filing under St. 1913, c. 716, § 3, a motion to amend his petition by striking out the name of Burrell as party respondent and by substituting therefor the name of James Jackson, appointed and qualified as treasurer and receiver general in his stead. The Attorney General contends that as matter of law this amendment cannot be allowed. The preliminary questions thus raised must first be decided.

The office of the writ of mandamus is to compel the performance of some duty. When sought against an individual, of necessity its function is to enforce a personal obligation. If the defendant be a public officer, the duty may be purely official, nevertheless the wrong to be redressed is not one flowing from the office, but from the delinquency of the person who is the incumbent of the office in refusing to perform his duty. The averments of the petition must set out that the duty exists, that it is unperformed, that there has been demand and refusal to discharge that duty, or such conduct as dispenses with such demand, and that wrong has come to the petitioner. Refusal or neglect to perform that personal duty constitutes the cause of action. The duty can exist ordinarily only so long as the person holds the office. It does not rest upon one who has been an officer after he has retired to private life and ceased to have power to exercise the duties pertaining to the office. The writ of mandamus is not directed to an office, but to the person holding the office. This is apparent, not only from the general principles governing the writ of mandamus, but from the provisions of R. L. c. 192, § 5, wherein reference expressly is made to ‘the person who is required to appear.’

It seems plain that the plea in abatement must be sustained. The person named as defendant in the original petition has ceased to hold office. If it should be held on the merits that the writ ought to issue, it could not be directed against Burrell, because he no longer has capacity to perform the official duty required. He is not treasurer and receiver general, but simply a private citizen without any official function; it cannot be directed to his successor in office, because he is not a party to the proceeding, and he has had no opportunity to be heard. It does not appear from the record that he would refuse to perform the duty alleged to pertain to the office, if he were asked.

The question of difficulty is whether the motion presented by the petitioner in this court to substitute Mr. Jackson, the present treasurer and receiver general, for the person named in the writ, can be allowed as matter of law. There is conflict of decision on the point whether such substitution can be made in the absence of an enabling statute. It was said in Pullman Co. v. Croom, 231 U. S. 571, 575, 34 Sup. Ct. 182, 184 (58 L. Ed. 375):

‘The leading case upon substitution of parties in such cases is United States v. Boutwell, 17 Wall. 604, which involved the right to substitute in a suit for mandamus the successor of the Secretary of the Treasury for the one who held that office at the time the suit was commenced. Mr. Justice Strong, who delivered the opinion of the court, pointed out that the purpose of a writ of mandamus is to enforce the personal obligation of the individual, no matter how the duty arose, and that even if the party be an officer and the duty official, mandamus does not reach the office, but is directed solely to the person, who alone can be punished for failure to conform to the mandate, and the suit is therefore a personal action based upon the alleged fact that the defendant has failed to perform a personal duty. And the court concluded that, since the personal duty of the defendant lasted only so long as he occupied the office, and as his successor was not his personal representative and could not be held responsible for his delinquencies, for the successor might have acted differently than the defendant, such action, in the absence of a statute to the contrary, must abate upon the death or retirement from office of the original defendant. This case has been uniformly followed.’

There are numerous decisions in the federal courts following this rule, and a few among the state courts. United States v. Chandler, 122 U. S. 643; United States v. Lochren, 164 U. S. 701, 17 Sup. Ct. 1001, 41 L. Ed. 1181;United States v. Butterworth, 169 U. S. 600, 18 Sup. Ct. 441, 42 L. Ed. 873;Richardson v. McChesney, 218 U. S. 487, 493, 31 Sup. Ct. 43, 54 L. Ed. 1121;Shaffer v. Howard, 249 U. S. 200, 39 Sup. Ct. 255, 63 L. Ed. 559;State v. Board of State Canvassers, 32 Mont. 13, 79 Pac. 402,4 Ann. Cas. 73;Rains v. Simpson, 50 Tex. 495, 511,32 Am. Rep. 609;State v. Guthrie, 17 Neb. 113, 22 N. W. 77;State v. Bloxham, 42 Fla. 503, 28 South. 762;State v. Long, 174 Ind. 642, 92 N. E. 649;Reeder v. Wexford County Treasurer, 37 Mich. 351.

The only exception to this principle recognized by decisions of the United States Supreme Court has been that of ‘boards and bodies of a quasi corporate character, having a continuing existence’ (231 U. S. 577, 34 Sup. Ct. 184, 58 L. Ed. 375), or where ‘there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached.’ (Thompson v. United States, 103 U. S. 480, 483 [26 L. Ed. 521];Marshall v. Dye, 231 U. S. 250, 255, 34 Sup. Ct. 92, 58 L. Ed. 206;Murphy v. Utter, 186 U. S. 95, 22 Sup. Ct. 776, 46 L. Ed. 1070, affirming Utter v. Franklin, 7 Ariz. 300, 64 Pac. 427;People v. Best, 187 N. Y. 1, 5, 6,79 N. E. 890,116 Am. St. Rep. 586,10 Ann. Cas. 51;People v. Ahern, 200 N. Y. 146, 93 N. E. 472). A large number of cases sometimes cited as opposed to the rule established in United States v. Boutwell, 17 Wall. 604, 21 L. Ed. 721, well may rest upon this distinction. State's Attorney v. Selectmen of Branford, 59 Conn. 402, 22 Atl. 336;Shull v. Board of Commissioners, 54 Kan. 101, 107, 37 Pac. 994;Maddox v. Graham, 2 Metc. (Ky.) 56;State v. Police Board, 39 La. Ann. 979, 3 South. 88;Pegram v. Commissioners, 65 N. C. 114;Scott v. Artman, 237 Ill. 394, 399, 86 N. E. 595; County Commissioners v. Bryson, 13 Fla. 281, 287.

There are numeros cases which adopt the opposite view and hold that mandamus against one who has ceased to hold office either does not abate or that his successor may be substituted on motion without an enabling statute. Hardee v. Gibbs, 50 Miss. 802, 806;Lindsey v. State Auditor, 3 Bush. (Ky.) 231, 235; State v. Puckett, 7 Lea (Tenn.) 709, 711; State v. Warner, 55 Wis. 271, 285, 9 N. W. 795,13 N. W. 255;Stone v. Bell, 35 Nev. 240, 244, 129 Pac. 458;Nance v. People, 25 Colo. 252, 257, 54 Pac. 631. See in this connection cases of like nature concerning the writ of prohibition. Commonwealth v. Latham, 85 Va. 632, 8 S. E. 488; Ex parte Peterson, 33 Ala. 74, 77; State v. Shea, 28 Okl. 821, 827, 115 Pac. 862; Ingersoll v. Buchanan, 1 W. Va. 181.

The reasoning of United States v. Boutwell, 17 Wall. 604, 21 L. Ed. 721, and the other decisions which amplify and affirm it, seems to us sound and unanswerable.

The case at bar does not fall within the exception. The treasurer and receiver general is an officer of the state and not of a governmental subdivision like a city, town or county. He exercises the functions of the commonwealth within the limitations of his office.

[5] The commonwealth is not directly suable in respect of the...