State ex rel. Gibson v. Richardson

• Decision Date: 17 April 1906
• Citation: 48 Or. 309,85 P. 225
• Parties: STATE ex rel. GIBSON et al. v. RICHARDSON, County Judge, et al.
• Court: Oregon Supreme Court

85 P. 225

48 Or. 309

STATE ex rel. GIBSON et al. v. RICHARDSON, County Judge, et al.

Supreme Court of Oregon

April 17, 1906

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Special proceedings by the state, on the relation of W.L. Gibson and others, against B.C. Richardson, county judge, and others. From a judgment allowing a peremptory mandamus, defendants George W. Blanton and G.R. Glover, county commissioners appeal. Affirmed.

For former report, see 81 P. 368.

This is a special proceeding, instituted by the state of Oregon, on the relation of W.L. Gibson and others, against B.C Richardson, as county judge of Malheur county, and G.W Blanton and G.B. Glover, as commissioners thereof, to compel them as the county court of that county to declare the result of an election held therein, November 8, 1904, to determine whether the sale of intoxicating liquors as a beverage should be prohibited in Nyssa precinct in that county. At a former trial of this cause, a judgment dismissing the proceedings was affirmed ( State ex rel. v. County Court of Malheur County, 81 P. 368), and on the return of the mandate the relators, over objection, secured an amended alternative writ of mandamus, showing an alleged legal right in themselves to have the act hereinbefore specified performed. The answer of the defendant Richardson states that at all times since the votes so cast were canvassed he has been and now is ready willing, and anxious to make the order which is sought to be enforced, but that his codefendants were opposed thereto. The answer of the defendants Blanton and Glover denies the material allegations of the amended alternative writ, and for a further defense thereto sets out the several steps attempted to be taken pursuant to the provisions of the local option liquor law, and alleges wherein such proceedings failed to comply therewith, in consequence of which defects they were absolved from performing the duty resulting from their office. For a further defense it is alleged that the local option act contravenes certain clauses of the Constitution of this state. The court, upon motion, struck out all the averments of the first affirmative defense, except the allegations that the notices of election were not printed until within 16 days prior to November 8, 1904, and that neither the sheriff nor the county clerk of Malheur county ever entered in the records thereof their compliance with the provisions of the local option law, respecting the issuing of notices or the posting thereof. The court also sustained a demurrer to the second affirmative defense, relating to the violation of the clauses of the organic law of this state by the adoption of the act in question. A reply put in issue the remaining allegations of new matter, and, the cause having been tried, the court made findings of fact and of law, as stated in the amended alternative writ, and thereupon allowed a peremptory mandamus, from which judgment the defendants Blanton and Glover appeal.

Geo. W. Hayes, for appellants.

Geo. F. Martin and C.M. Van Pelt, for respondents.

MOORE J. (after stating the facts).

It is contended by defendants' counsel that, as no further procedeings were ordered in remanding the cause on the former appeal, the court erred in permitting, over objection, the alternative writ of mandamus to be amended. In the early practice, when some particular act was sought to be enforced, a mere letter from the sovereign power was issued, addressed to the person upon whom the duty devolved, commanding him to perform it. No return was originally allowed to the order, a disobedience of which subjected the offender to punishment. As mandatory proceedings became more general, the common-law courts, relaxing the ancient rule, permitted a return to the writ, which had taken the place of the king's letter; but the facts therein stated could not be traversed. If the return, though false, disclosed an adequate legal reason for not performing the act commanded, the proceedings were dismissed, and the petitioner's remedy was thereupon limited to the maintenance of an action to recover the damages which he had sustained by reason of the sham statement. A return was first permitted to be traversed by St. 9 Anne, c. 20, in cases involving a contest for a municipal office, and later the facts so stated were allowed to be controverted in all cases by St. 1 Wm. IV, c. 21, thereby avoiding the necessity of bringing an action for a false return. Pursuant to the rules governing the early practice in mandamus proceedings, any mistake therein of substance was fatal and could not be corrected; but after the passage of the statutes mentioned the rigor of the ancient mode of procedure was abated, so as to allow amendments to the alternative writ, when by doing so justice would be promoted, provided no new or different cause of action was thereby substituted, and this modern rule now generally prevails in this country. Merrill, Mandamus, §§ 5, 293, 294. Though the courts will not ordinarily permit a peremptory writ of mandamus to be altered (High, Ex. Legal Rem. § 519), the practice of amending an alternative writ thereof, provided no new or different cause is thereby stated, is quite general. 13 Enc.Pl. & Pr. 753; State v. Gibbs, 7 Am.Rep. 233; State v. Bailey, 7 Iowa, 390; Union Pacific Ry. Co. v. Hall, 91 U.S. 343, 23 L.Ed. 428.

The statute of this state, recognizing the wisdom of the rule thus outlined, prescribes what shall constitute the pleadings in mandamus proceedings, and, referring thereto, contains the following provision: "They are to have the same effect and to be construed, and may be amended in the same manner, as pleadings in an action. Either party may move to strike out, or be allowed to plead over after motion or demurrer allowed or disallowed, and the issue joined shall be tried and the further proceedings thereon had in like manner and with like effect as in an action." B. & C. Comp. § 612. These liberal provisions authorize an amendment of an alternative writ of mandamus while the cause remains in the trial court, and its action in granting leave so to amend is a matter wholly within its discretion which will not be disturbed, except in cases of an abuse thereof. Highway Commissioners v. People, 38 Ill. 347; Stevens v. Miller, 3 Kan.App. 192, 43 P. 439. Our statute regulating the practice on appeal provides that, in affirming or reversing a judgment, this court may, if necessary and proper, order a new trial. B. & C. Comp. § 556. Observing the rule that a court will take judicial knowledge of the facts which it has acquired at a prior hearing of the cause (16 Cyc. 851; Mill's Estate, 40 Or. 424, 67 P. 107), we have examined the record pertaining to the order affirming the judgment on the former appeal and find that it concludes as follows: "It is further ordered that the cause be remanded to the said court below, and that a judgment be there entered and docketed in accordance herewith." Does the language here quoted show such a final disposition of the cause as to preclude the trial court from allowing the alternative writ to be amended?

In Powell v. Dayton, etc., Ry. Co., 13 Or. 446, 11 P. 222, a demurrer to the complaint therein was overruled, and the defendants appealed. In disposing of the cause, Mr. Justice Thayer says: "The case is too important to be determined upon demurrer, and the appellants would have been allowed to answer over, if the decision of the lower court had been affirmed. We have therefore concluded to reverse the decree appealed from and remand the case with leave to the respondents to amend their complaint." The remittitur having been sent down, the plaintiffs filed an amended complaint to which a demurrer was interposed and overruled, whereupon the defendants again appealed (s.c. 14 Or. 22, 12 P. 83); their counsel insisting that, in case the decision of the lower court was sustained, their clients should be given leave to answer over. In disposing of such contention, Mr. Justice Strahan, after referring to the former practice in this court in such cases, remarks: "We therefore announce it as a rule of practice in such cases that whenever this court does not make a final disposition of the cause, but remands the same to the court below, it will be open for that court to determine in the first instance whether the defendant shall be permitted to answer or not." In Fowle v. House, 29 Or. 114, 44 P. 692, which was a suit to enforce a mortgage, a demurrer to the complaint was sustained, and the suit dismissed, whereupon the plaintiff appealed. At the trial in this court the complaint was found to be insufficient, and the decree affirmed. The mandate having been sent down, the motion of plaintiff's counsel to recall it was denied (s.c. 30 Or. 305, 47 P. 787), because the cause was remanded for further proceedings.

It will be observed that the cases adverted to were suits which were dismissed because the complaints were respectively held to be insufficient on demurrer. An appeal in equity, from a decree rendered on an issue of fact, brings up the cause for trial anew in this court upon the transcript and evidence accompanying it (B. & C. Comp. § 555), and a final decree in such cases is usually rendered in this court. A mandate is thereupon sent to the court below, to be entered, however, as our decree, and not as that of the court a quo. When, on appeal from a decree in equity, the cause is sent back because the complaint is considered insufficient or the evidence inadequate to support a material averment, no final decree is rendered in this court, except to set aside the decree of the court below and to require further proceedings to be had therein. The rule, therefore, as promulgated in Powell v. Dayton, etc.,...