State ex rel. Nixon v. Grace

• Decision Date: 10 April 1911
• Citation: 136 S.W. 670
• Parties: STATE ex rel. NIXON v. GRACE, Judge.
• Court: Arkansas Supreme Court

136 S.W. 670

STATE ex rel. NIXON v. GRACE, Judge.

Supreme Court of Arkansas.

April 10, 1911.

Mandamus by the State, on the relation of T. Havin Nixon, against A. B. Grace, as Judge of the Circuit Court, to make an order of process to be issued on certain indictments. Writ denied.

Taylor & Jones, for A. B. Grace.

HART, J.

This is a petition for a writ of mandamus to compel A. B. Grace as judge of the circuit court of Jefferson county, Arkansas, to make an immediate order for process to be issued on certain indictments returned in said court.

Where a court has discretion, it cannot be controlled by mandamus. This is conceded by counsel, and is too well settled to require a citation of authority to support it. The statute under which the petition is filed reads as follows: "Upon an indictment being found, if the defendant is not in custody or on bail, the court shall forthwith make an order for process to be issued thereon, designating whether it shall be for arresting or summoning the defendant; and if for arresting the defendant, and the offense charged is bailable, the sum in which he may be admitted to bail shall be fixed." Kirby's Dig. § 2256. This section is a part of chapter 3 of our Criminal Code, entitled "Process on an indictment." Preceding sections of the chapter provide that the process on an indictment consists of writs for arresting or summoning the defendant, and that the process of arrest be issued by the clerk upon the order of the court. Subsequent sections of the chapter prescribe the form of the bench warrant and the summons, and that the summons shall only be issued on indictments for misdemeanor, where the court has not ordered a bench warrant to issue. The last section of the chapter, which is section 2264 of Kirby's Digest, contains a provision that the court may, at its discretion, order a bench warrant to be issued on any indictment. Another section of the Code contains a clause that its provisions and all proceedings under it shall be liberally construed, with a view to promote its objects. Kirby's Dig. § 7817. The petitioner contends that section 2256, supra, is mandatory, and the respondent insists that it is directory merely. In other words, the petitioner contends that the circuit court must make an order for process to be issued as soon as the indictments are returned into court, and that he has no discretion in the matter. On the other hand, the respondent maintains that this is a matter within the sound discretion of the court.

It is difficult to lay down a general rule which will be a correct test in all cases to determine whether the provisions of a statute are mandatory or directory. In regard to the general rule, Mr. Justice Sharswood of the Supreme...