Knights v. Treasurer and Receiver General

• Decision Date: 13 October 1920
• Citation: 236 Mass. 336
• Parties: WILLIAM W. KNIGHTS v. TREASURER AND RECEIVER GENERAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 336

WILLIAM W. KNIGHTS v. TREASURER AND RECEIVER GENERAL.

Supreme Judicial Court of Massachusetts, Worcester.

October 13, 1920

September 28, 1920.

Present: RUGG, C.

J., BRALEY, CROSBY CARROLL, & JENNEY, JJ.

Mandamus. Public Officer.

Practice, Civil Amendment.

The writ of mandamus is not directed to an office, but to the person holding the office.

If, after a petition for a writ of mandamus, commanding one holding the office of Treasurer and Receiver General of the Commonwealth not to distribute and pay over certain funds received from income taxes as required by St. 1919, c. 363, has been reserved for determination by this court, the respondent resigns his office, his resignation is accepted and his successor is appointed and qualifies, a plea in abatement then filed by the respondent must be sustained, and a motion by the petitioner to amend the petition by substituting as respondent the original respondent's successor in office must be denied, the writ which the petitioner seeks to have issued being one running against the respondent personally and not against the office of which he for the time being was a representative.

While, under R.L.c 173, Section 48, it would be permissible by amendment to bring into an action a new party defendant in substitution for the one originally named as defendant, a cause of action not in existence at the time the proceedings were instituted and arising thereafter cannot thus be brought into the case.

PETITION, filed on July 21, 1920, for a writ of mandamus Commanding Fred J Burrell, then the Treasurer and Receiver General of the Commonwealth, "not to distribute or pay over in accordance with the provisions of" St. 1919, c. 363, "any portion of the tax for the year 1920 raised from the petitioner under the provisions of" St. 1916, c. 269, or of St. 1919, c. 324.

The respondent demurred on August 24, 1920, and on August 25, 1920, the case came on to be heard before Braley, J., upon the petition and the demurrer and by him was reserved for determination by the full court. When the case was called for hearing before the full court, the respondent filed the plea in abatement described in the opinion and the petitioner filed the motion to amend, also there described.

P. Nichols, for the petitioner. E. H. Abbot, Jr., Assistant Attorney General, for the 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 respondent 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 respondent 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, Section 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 respondent 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, Section 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 respondent 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, at page 575: "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. United States v. Butterworth, 169 U.S. 600. Richardson v. McChesney, 218 U.S. 487, 493. Shaffer v. Howard, 249 U.S. 200. State v. Board of State Canvassem, 32 Mont. 13. Rains v. Simpson, 50 Texas, 495, 511. State v. Guthrie, 17 Neb. 113. State v. Bloxham, 42 Fla. 501, 503. State v. Long, 174 Ind. 642. Reeder v. Wexford County Treasurer, 37 Mich. 351.

The only exception to this principle recognized by decisions of the Supreme Court of the United States has been that of "boards and bodies of a quasi-corporate character, having a continuous existence," Pullman Co. v. Croom, 231 U.S. 571 576, 577, 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. Marshall v. Dye, 231 U.S. 250, 255. Murphy v. Utter, 186 U.S. 95, affirming Utter v. Franklin (by amendment after the rescript following Utter v. Franklin, 172 U.S. 416, changed to Utter v. Murphy), 7 Ariz. 300. People v. Best, 187 N.Y. 1, 5, 6. People v. Ahearn, 200 N.Y. 146. A large number of cases sometimes cited as opposed to the rule established in United States v. Boutwell, 17 Wall. 604, well may rest upon this distinction. State's Attorney v. Selectmen of Branford, 59 Conn. 402. Shull v. Commissioners of Gray County, 54 Kans. 101, 107. Maddox v. Graham, 2 Met. (Ky.) 56. State v. Police Jury of Jefferson, 39 La. Ann. 979. Pegram v. County Commissioners, 65 N.C. 114. ...