State ex rel. Garton v. Fulton

• Decision Date: 25 April 1929
• Docket Number: 26565
• Citation: 225 N.W. 28,118 Neb. 400
• Parties: STATE, EX REL. KATHERINE GARTON, RELATOR, APPELLEE, v. W. R. FULTON, COUNTY JUDGE, RESPONDENT, APPELLANT
• Court: Nebraska Supreme Court

225 N.W. 28

118 Neb. 400

STATE, EX REL. KATHERINE GARTON, RELATOR, APPELLEE, v. W. R. FULTON, COUNTY JUDGE, RESPONDENT, APPELLANT

No. 26565

Supreme Court of Nebraska

April 25, 1929

APPEAL from the district court for Fillmore county: ROBERT M PROUDFIT, JUDGE.Reversed and dismissed.

Judgment of district court reversed and the writ quashed, and proceeding dismissed at relator's costs.

Syllabus by the Court.

While mandamus will lie to compel an inferior court to hear and determine a cause if within its jurisdiction and when properly brought into court, yet it will not lie to coerce judicial discretion of an inferior court, nor to predetermine the character of the judgment that the court shall enter.

Mandamus will not issue to review the action of an inferior court where there is an ade quate remedy at law, and the writ may not be used to usurp or take the place of an appeal or writ of error.

Mandamus will not lie to compel a county court or judge thereof to vacate an order, made by such court or judge, denying a defendant a jury trial in a case wherein defendant is charged with a violation of the liquor law, if the court has jurisdiction of the parties and the subject-matter, since there is an adequate remedy by appeal, or proceedings in error, to review the ruling and order made by the court or judge.

This court will refuse to pass upon the constitutionality of a statute unless it is necessary to a proper disposition of an action pending in this court.

Appeal from District Court, Fillmore County; Proudfit, Judge.

Mandamus by the State, on the relation of Katherine Garton, against W. R. Fulton, County Judge of Fillmore County.Judgment granting the writ, and respondent appeals.Reversed and dismissed.

Guy A. Hamilton, for appellant.

F. L. Bollen, contra.

Elmer E. Thomas, amicus curiae.

Heard before GOSS, C. J., DEAN, GOOD, EBERLY and DAY, JJ., and LIGHTNER and REDICK, District Judges.

OPINION

GOOD, J.

Respondent has appealed from the allowance of a peremptory writ of mandamus, commanding him, as county judge of Fillmore county, to grant and award to relator a jury trial in an action pending in the county court of said county, wherein relator is charged with the unlawful sale of intoxicating liquors, and wherein such sale is charged to be a second offense.

From the record it appears that in the county court of Fillmore county a complaint was filed wherein relator was charged with the unlawful sale of intoxicating liquors as a second offense; that relator appeared in said action, pleaded not guilty thereto and demanded a jury trial.The county court, upon due consideration, refused her demand and denied a jury trial.Thereupon, this proceeding was instituted, with the result indicated.

In the application for the writ relator alleges that respondent based his refusal to grant a jury trial upon his construction of the provisions of section 3287, Comp. St. 1922, which in part reads as follows: "Magistrates and police courts are hereby vested with jurisdiction to try without a jury all violations of this act and of all such ordinances wherein the penalty does not exceed a fine of one hundred dollars or imprisonment for a period of three months, and upon the conviction such magistrates and police judges shall impose sentence."Relator further charges that in her belief the said section of the statute is violative of sections 6and11, art. I, of the Constitution.The sections, so far as material, are as follows: Section 6: "The right of trial by jury shall remain inviolate."Section 11: "In all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed."In his return to the alternative writ respondent set forth the fact that a complaint had been filed against the relator charging her with the unlawful sale of intoxicating liquors, and charging the sale to have been a second offense, as provided under section 3238, Comp. St. 1922; that the plea of not guilty was entered; that relator demanded a trial by jury and that respondent, in the impartial and careful exercise of the duties vested in his office, refused the request.

Both relator and respondent, by their counsel, have earnestly requested this court to determine whether section 3287, Comp. St. 1922, is violative of sections 6and11, art. I, of the Constitution, and whether the relator was entitled to a jury trial in the cause then pending in the county court.If the action is properly brought to this court and presented by this appeal, it is the duty of the court to pass upon and determine the questions argued; but, on the other hand, if the questions argued have not been properly brought to this court, any attempted determination would be of no force or effect as a precedent and would be nothing more than dictum.Our first consideration, therefore, will be to determine whether or not the constitutionality of said section 3287 has been properly brought to this court in this action.

Mandamus is an extraordinary remedy.Section 9224, Comp. St. 1922, authorizes the issuance of a writ of mandamus to an inferior tribunal to compel the performance of an act which the law especially enjoins as a duty, and may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, but cannot control judicial discretion.Section 9225, Comp. St. 1922, provides that the "writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law."The availability of mandamus, as a remedy to compel a judicial tribunal to act and the extent to which the tribunal's act may be coerced, has frequently been before this and other courts.The decisions are not entirely harmonious.We will proceed to a review of the decisions of our own court and make reference to the decisions in other jurisdictions.

In State v. Nemaha County,10 Neb. 32, 4 N.W. 373, it was held: "Mandamus is not a proceeding to correct errors; it is invoked merely to compel action, and creates no new powers."

In State v. Powell,10 Neb. 48, 4 N.W. 317, wherein it was sought to compel a justice of the peace to reinstate a judgment on the docket of his predecessor, it was "held, that the error, if any, in setting aside the verdict and judgment, cannot be reviewed on an application for a mandamus."The ruling was based on the assumption that the action could have been reviewed by proceedings in error.

In McGee v. State,32 Neb. 149, 49 N.W. 220, it was held: "A mandamus will not issue to correct errors committed by a court, or other tribunal, exercising judicial powers."In that case relator sought by mandamus to compel the county supervisors to reassemble as a board of equalization and strike from their records an entry relating to the equalization of the assessment of relator's property.The district court granted the writ.On appeal to this court, in the course of the opinion, it was said (page 154): "Mandamus will not lie where there is a plain and adequate remedy in the ordinary course of the law."It was pointed out in the opinion that decisions of the county board of equalization may be reviewed in the district court by petition in error, and that such remedy is full and complete.

In State v. Churchill,37 Neb. 702, 56 N.W. 484, it was held: "Mandamus will not lie to compel officers exercising judicial functions to make a particular decision, or to set aside or vacate a decision already made."

In State v. Merrell,43 Neb. 575, 61 N.W. 754, it was held: "This court has no authority under the Constitution and the laws of the state to compel by mandamus the county board of a county to allow a claim against such county, although the court may be of opinion that such claim is a valid obligation against the county and that it has no defense thereto.

"A county board in the adjustment of claims against a county acts judicially, and this court cannot, by mandamus, control the judicial discretion of such board.State v. Churchill,37 Neb. 702, 56 N.W. 484, reaffirmed.

"Mandamus is the last resort of a litigant and the courts will not employ this remedy when such litigant has a plain and adequate remedy at law; nor in the absence of such remedy unless the relator has a clear right to have the officer to whom he wishes the writ directed perform the identical ministerial act prayed for."

In Nebraska Telephone Co. v. State,55 Neb. 627, 76 N.W. 171, it was held: "A litigant will not be permitted to invoke the extraordinary remedy of mandamus when an express statute affords him an adequate remedy for the redress of the grievance of which he complains."

In State v. Fawcett,64 Neb. 496, 90 N.W. 250, it was held: "A party who complains that a trial judge has incorporated incompetent, irrelevant or improper matter in a bill of exceptions by way of amendment on the ground that he took judicial notice thereof at the hearing, has a 'plain and adequate remedy in the ordinary course of the law,' within the purview of section 646, Code of Civil Procedure(now appearing as section 9225, Comp. St. 1922), by obtaining a review of the action of the judge in considering the matter complained of."In that case an application for mandamus was made to compel the settling of a bill of exceptions, and the writ was denied.

In State v. Jessen,66 Neb. 515, 92 N.W. 584, it was held: "The writ of mandamus will not issue merely to correct errors; it must further appear that the remedy prayed for by the application for the writ can be obtained by that means only and as a last resort, and that the relator has no adequate remedy in the due and ordinary course of the law.

"The writ will not ordinarily...