Nichols v. Dunton

• Decision Date: 05 April 1915
• Citation: 93 A. 746,113 Me. 282
• Parties: NICHOLS v. DUNTON et al.
• Court: Maine Supreme Court

93 A. 746

113 Me. 282

NICHOLS

v. DUNTON et al.

Supreme Judicial Court of Maine.

April 5, 1915.

Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

Petition by George C. Nichols for a writ of mandamus against Arthur J. Dunton and others. The petition was dismissed, and the petitioner brings exceptions. Exceptions overruled, and petition dismissed.

Argued before SPEAR, CORNISH, KING, BIRD, HALEY, and PHILBROOK, JJ.

Franklin P. Sprague, of Bath, for petitioner. Arthur J. Dunton, of Bath, for respondents.

PHILBROOK, J. This is a petition for a writ of mandamus. The petitioner, feeling aggrieved by the conduct of a police officer of the city of Bath, filed a statement of his grievance with the respondents, who were then the mayor and aldermen of said city, and accompanied his statement with a demand that the officer be discharged from his official position. A copy of the petitioner's statement and demand make a part of the record, and while these do not disclose a request for a hearing before the board, yet the petitioner avers in his bill that such a hearing was requested but never given.

This petition was then filed, praying that a writ of mandamus might issue commanding the respondents to give the petitioner an official and judicial hearing upon his complaint and demand.

The respondents in due time filed a motion to dismiss the petition on the ground that the petitioner was not by law entitled to such Official and judicial hearing. The Justice who heard the cause sustained the motion and dismissed the petition, allowing costs to the defendants. To this ruling the petitioner seasonably excepted and exceptions were allowed.

While authorities are numerous and in entire harmony upon the point in issue, we find a well-expressed statement in a very recent note to State v. Stutsman, Ann. Cas. 1914D, 776, where the following language is used:

"When the law requires a public officer to do a specified act, in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial in character, and performance may he compelled by mandamus if there is no other remedy. When, however, the law requires a judicial determination to be made, such as the decision of a question of fact, or the exercise of judgment in deciding whether the act should be done or not, the duty is regarded as judicial, and mandamus will not lie to compel...