Nolan v. McCoy

• Decision Date: 26 May 1950
• Docket Number: No. 955,955
• Parties: NOLAN, Atty. Gen., et al. v. McCOY et al. M. P.
• Court: Rhode Island Supreme Court

Page 693

73 A.2d 693

77 R.I. 96

NOLAN, Atty. Gen., et al. v. McCOY et al.

M. P. No. 955.

Supreme Court of Rhode Island.

May 26, 1950.

Edwards & Angell, William H. Edwards, Gerald D. Harrington, Edward F. Hindle, all of Providence, William E. Powers, Attorney General, for plaintiffs.

Aram A. Arabian, Providence, J. Frederick Murphy, Pawtucket, for defendants.

CONDON, Justice.

This is a motion to quash an alternative writ of mandamus. On this motion the only question is whether the writ is good or bad precisely as it stands. We are not concerned with any right to amend the writ as plaintiffs have not requested permission to amend. On the contrary they insist that the writ in form and substance as ordered is good. The trial justice has so held. The cause is now here on appeal by the defendants who contend that the trial justice erred in so holding. They argue that the alternative writ cannot be the basis for the issuance of a valid and enforceable peremptory writ in accordance with the well-established principles of common-law mandamus, unaffected by any statute. On the other hand plaintiffs argue that the alternative writ can support a good and enforceable peremptory writ, if judged by the modern practice in mandamus proceedings, and they cite numerous authorities which they claim sustain their position.

This question must be decided not by resort to modern cases from jurisdictions where common-law mandamus has been expressly or impliedly altered by statutes or judicial decisions or by both, but by reference to those cases where the principles and rules of practice and procedure in common-law mandamus were applied. In this state the customary practice in ordinary common-law mandamus is the only correct practice. We endeavored to make that clear in McCoy v. Nolan ex rel. Providence Journal Co., 74 R.I. 464, 62 A.2d 330, which involved another procedural phase of the instant case. There, 74 R.I. at page 468, 62 A.2d at page 333, we said that the case was clearly one in ordinary mandamus and that 'cases from other jurisdictions where the general practice in mandamus has been altered by statute are of no value as precedents in determining what is the general and established practice in ordinary common-law mandamus.'

This is not a new view by this court. Although many courts hold that the writ has lost its prerogative character and become but another civil action, it is established here that it is still prerogative in character and its issuance lies in the discretion of the court having jurisdiction to issue it. Dintenfass v. Amber Star Films Corp., 39 R.I. 555, 99 A. 516. And where some public right is to be subserved by the writ it can be applied for only 'by the proper public officer, to whom it appertains to see to the enforcement of the right or duty in question.' O'Brien v. Board of Aldermen, 18 R.I. 113, 117, 25 A. 914, 915. An examination of the cases on mandamus in our reports discloses no disposition on the part of this court, as far as we can determine, to discard or modify the customary practice and procedure in mandamus at common law. And we so held in McCoy v. Nolan ex rel. Providence Journal Co., supra.

In the case at bar the defendants' motion to quash raises questions of practice and procedure. In support of their appeal they have consolidated the numerous grounds of their motion under three main headings which they have set out in their brief substantially as follows: (A) the alleged mandate in the alternative writ is improper in that it directs and commands the performance of an impossible act; that a peremptory writ cannot validly be based upon it; and that it is ambiguous, indefinite, indiscriminate, unascertained and general; (B) the parties to the action are improper in that the alternative writ joins improper parties plaintiff and defendant and fails to join an indispensable party plaintiff and indispensable parties defendant; (C) the alleged cause of action set out in the writ is insufficient in that it fails to show that plaintiffs are entitled to relief but rather shows the contrary, and that it joins separate alleged causes of action.

This writ is obviously bad in most of the above respects. Besides being prolix to an extreme degree, it is vague and argumentative and thus is lacking in that clarity and precision which is so essential in mandamus. Merrill on Mandamus 324, § 260. That requirement is especially important in the mandatory clause of the writ. The King v. Church Trustees of St. Pancras, 1 N. & P. 507. Such exactness and clearness in the mandate of the alternative writ is insisted upon because the peremptory writ, which in this respect must conform strictly to the alternative writ, admits of no excuse by the defendant. High's Extraordinary Legal Remedies, 3d Ed., 507, § 548. Hence it should be directed precisely to the one who has authority to act and to no one else. Regina v. Mayor, etc., of Hereford, 2 Salk. 701; Wood on Mandamus 20. If this rule is violated the writ may be quashed. High's Extraordinary Legal Remedies, 3d Ed., 501, § 542. Another rule in the interest of clearness and exactness is that the writ should not include more than one case. In other words, two or more distinct rights violated by two or more distinct wrongs cannot be redressed by a single writ of mandamus. Ferris, Extraordinary Legal Remedies 287, § 241.

Under the writ in the instant case it is not clear, definite and certain from the mandatory clause what the defendants are commanded to do. The language therein 'to make available to the petitioners the tax abatement or cancellation information referred to in the foregoing paragraphs' is altogether too general. Also the duty of the defendants is alleged as joint but the mandate is to them severally. It is therefore not clear how each of them could perform the same single duty. If the duty is single and not joint there must be some one person upon whom it is incumbent and not upon any one of several defendants.

Defendants are public officers. Plaintiffs are seeking by mandamus to have this court compel them to perform their duty as such officers. If the duty is joint it should be so alleged and the mandate to the defendants to perform it should be to them jointly and not severally. If it is not joint the writ should be directed unequivocally to the precise person charged with the single duty. In either of those instances there can then be no doubt as to who is obligated to comply with the mandate of the writ. But to lump the individual defendants together and leave it to conjecture or speculation, as is done here, to determine which of them has the duty to perform the acts demanded is certainly bad pleading in any form of action at common law, and especially so...