Rogers v. Brown

• Decision Date: 06 March 1937
• Parties: ROGERS v. BROWN et al., Selectmen.
• Court: Maine Supreme Court

190 A. 632

ROGERS

v. BROWN et al., Selectmen.

Supreme Judicial Court of Maine.

March 6, 1937.

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

Mandamus by Edwin A. Rogers against Lawrence A. Brown and others. Selectmen of the Town of Brunswick, wherein peremptory writ was awarded. On respondents' certified exception.

Exception sustained, writ quashed, and petition dismissed.

See, also, 134 Me. 88, 181 A. 667.

Argued before DUNN, C. J., and STURGIS, BARNES, HUDSON, and MANSER, JJ.

Verrill Hale Booth & Ives, of Portland, and Joseph A. Aldred, of Brunswick, for plaintiff.

Clement F. Robinson, of Portland, for defendants.

DUNN, Chief Justice.

Exception raises the question whether the decision of the selectmen of Brunswick who heard, and denied, application, under Pub.Laws 1933, c. 2, § 43 et seq., for a license to plant and cultivate clams, is subject to control by mandamus.

Petitioner alleged, and alternative writ recited, that the respondents refused him a license because they were not in sympathy with the policy of the law.

In their answer, or return, respondents stated, among other things, that having heard the applicant, and persons in opposition their conclusion was that the best interests of the town required a refusal to grant the application. They submitted that their action in so refusing had been correct and legal.

The petitioner demurred to the return; by demurring, he must be deemed to admit all that is therein set forth, and to put his case on the issue that, taking the record as it stands, it furnishes no warrant in law for mandamus. In re Randall, Petitioner, 11 Allen (Mass.) 473.

Peremptory writ was awarded. Respondents' exception was certified. Rev. St., c. 116, § 17.

Pub.Laws 1933, supra, commits to municipal officers, in towns affording opportunity for the propagation of clams, the duty of granting licenses.

It is for them, after previous notice and public hearing, to determine whether the applicant has resided in the state, or been a taxpayer in the town, for not less than one year, and if a license, put into use, would materially obstruct navigation. A license shall be for not less than five years, but might be for not exceeding ten years, as the municipal officers may settle. No license may include more than one fourth of all the flats in the place. "Riparian" proprietors (littoral proprietors would seem more accurately to describe the condition) are, on applying for locations on the foreshores adjacent their uplands, to have preferential consideration.

There is no grant to any such owner, either of license, or of absolute right to license. What the Legislature has laid down comes to this: That on establishing the fact of ownership, holders of contiguous high lands shall have some advantage over other applicants.

"Shall" is not necessarily mandatory. 57 C.J. 552.

"'Shall' ought * * * to be construed as meaning 'must,' for the purpose of sustaining or enforcing an existing right; but it need not be for creating a new one." West Wisconsin Railway Company v. Foley, 94 U.S. 100, 103, 24 L.Ed. 71.

The statute contemplates, not that one in occupancy of land abutting the seashore may, himself, have the power of choosing, in exclusiveness, a clam fishery location, but that, as to his shore front, he should rate before any other applicant. Had legislative intent been an outright license, there would be no occasion for application, no need for notice, no reason for. hearing.

Mandamus is an extraordinary remedy. Baker v. Johnson, 41 Me. 15. It has been styled the right arm of the law. Townes v. Nichols, 73 Me. 515. The principal office of mandamus is to command and execute, rather than to inquire and investigate; mandamus requires action in obedience to law. Attorney General v. Newell, 85 Me. 246, 249, 27 A. 110; Rogers v. Brown, 134 Me. 88, 181 A. 667.

The writ is one requiring the doing of some specific duty, imposed by law, which the applicant, otherwise without remedy, is entitled to have performed.

The process cannot be used to work an appeal. Knight v. Thomas, 93 Me. 494, 501, 45 A. 499. Neither can it be used to coerce or superintend duty, in the discharge of which, by law, officers are given discretion. Attorney General v. Newell, supra.

Mandamus applies to judicial as well as ministerial acts. If the duty be judicial, the mandate will be to the officers to exercise their official discretion or judgment, without any direction as to the manner in which it shall be done. If it be ministerial, then the mandamus will direct the specific act to be performed. Carpenter v. County Commissioners, 21 Pick. (Mass.) 258. The purpose of the writ, as directed to public officers, is to make them do something the law requires them to do; not to do differently what they have already done.

Public officers can be directed to act, but not how to act, in matters as to which they have the right to exercise discretion; where power is so vested, the court does not grant mandamus, to alter determination. Troy v. Barnitt, 165 A. 576, 11 N.J Misc. 275; Webster v. Ballou, 108 Me. 522, 81 A. 1009, Ann.Cas.1913B, 567.

Where duty is purely ministerial, where the officer can do only the one thing, he may, if there is no other adequate remedy, be liable to compulsion by mandamus. Work v. United...