State ex rel. Sparks v. Wilson

• Decision Date: 31 October 1871
• Citation: 49 Mo. 146
• Parties: STATE OF MISSOURI ex rel. JOSEPH M. SPARKS et al., Relators, v. ELIAS V. WILSON, JUDGE OF FOURTH JUDICIAL CIRCUIT, Respondent.
• Court: Missouri Supreme Court

49 Mo. 146

STATE OF MISSOURI ex rel. JOSEPH M. SPARKS et al., Relators,

v.ELIAS V. WILSON, JUDGE OF FOURTH JUDICIAL CIRCUIT, Respondent.

Supreme Court of Missouri.

October Term, 1871.

Petition for Mandamus.

J. G. Blair, for relators.

If there be a right and no other specific remedy, mandamus will lie. (Moses Mand. 17, 18.) The discretion of a superior court in issuing it is not arbitrary but judicial. (Moses Mand. 18.) The granting of an injunction by a court or judge is a ministerial act. (4 Ark. 302; 9 Ark. 336.) An injunction bill which if answerable will not be refused though erroneous. (See 19 Penn. 211; 14 Md. 152; 15 Cal. 107; 40 Ill. 388; 4 Iowa, 570; 16 Eng. Law & Eq. 327-35; 35 Barb. 373; 9 Paige Ch. 373; 3 Ark. 352.) The discretion of inferior courts must be sound and legal (41 Mo. 221.) The allowance or rejection of a claim against a county is not a judicial act. (46 Mo. 18.) A tax-payer may enjoin a tax illegally levied. (Hooper v. Ely, 46 Mo. 505.)

Giving to the act of Judge Wilson the most charitable view, it amounts to a misconstruction of the law of the case, and this court holds that in such case a mandamus will issue by this court. (Castello v. St. Louis Circuit Court, 28 Mo. 259.)

Hughes, Baker & Bland, for respondent.

Having heard the application of relators for an injunction and passed upon it judicially, respondent's judgment cannot be inquired into upon mandamus, nor can errors of judicial judgment be corrected by mandamus.

Nor can he be required to decide any case or matter of judicial discretion in any particular manner. (Dunklin County v. Dunklin County District Court, 23 Mo. 454; Castello v. St. Louis Circuit Court, 28 Mo. 277; Adamson v. Lafayette County Court, 41 Mo. 221; Ex parteKoon, 1 Denio, 644; Ex parte Jacobs, id; Ex parte Ostrander, id. 679; Judges of Oneida v. People, 18 Wend. 79; People v. Judges of Duchess, 20 Wend. 658; Ex parteMahone, 30 Ala. 50; United States v. Lawrence, 3 Dallas, 42; Ex parteHoyt, 13 Pet. 279; Ex parte Whitney, id. 404; Rex v. Justices of Wilts, 2 Chit. 257; Gray v. Bridge, 11 Pick. 189; People v. Judges of Wayne County Court, 1 Manning, 359; Elkins v. Atkinson, 2 Denio, 191; Chase v. Blackstone Canal Co., 10 Pick. 244; Griffith v. Cochran, 5 Binn. 103; Regina v. Justices of Bristol, 28 Eng. L. & Eq. 160.)

Whatever may be the opinion of this court on the construction of the law upon which the judge based his action and opinion in refusing the writ of temporary injunction, this court cannot interpose by mandamus to compel the circuit judge to adopt their judgment instead of his own as the rule of decision in a case judicially before him. The court may compel him to proceed to judgment, but cannot dictate what that judgment shall be. It cannot, except on appeal or error, review that judicial determination. (See cases above cited.)

The writ will not be granted to review and correct errors in judicial determinations of inferior tribunals, even where there is no remedy by error or appeal. (People v. Judges of Wayne County Court, supra; People v. Judges of Duchess, supra;Ex parte Ostrander, supra; Ex parte Whitney, supra.)BLISS, Judge, delivered the opinion of the court.

The relators presented a petition in equity to the respondent as judge of the Circuit Court of Scotland county, asking for a preliminary injunction, pending the suit instituted by said petition against the County Court of said county, restraining them from issuing bonds in payment of a subscription to the stock of the Missouri, Iowa & Nebraska Railroad Co., and upon hearing said application he refused to allow the injunction. The present proceeding is an application for a peremptory writ of mandamus commanding him to allow said preliminary injunction. The suit instituted by the petition is now pending in said Scotland county, and the first question now presented is, whether in this proceeding we can review the action complained of, and, if we think there is sufficient equity in the petition, order the allowance.

It is not disputed that mandamus either lies to compel the performance of ministerial acts, or, if addressed to subordinate jurisdictions or tribunals exercising judicial functions, that its province is not to command in advance any particular judgment or decision, but only to proceed to act in the premises. (State v. Lafayette Co., 41 Mo. 221.) The writ will not interfere with judicial discretion exercised by a court or judge, and if error has been committed some other mode must be resorted to, to correct it. Recognizing this principle, counsel for relators claim that the allowance of the preliminary injunction in vacation is a ministerial act, and that the judge has no discretion in the matter if the petition shows any equity.

There is a distinction between a judicial discretion and an ordinary one. It is the duty of a judge to decide all questions according to law; he cannot choose not to do so. But such judge must decide what is the law as applied to the facts. This decision is an exercise of judicial discretion, in distinction from a discretion vested in one who is at liberty to choose whether he will do this or that. “When applied to a court of justice, it means sound discretion guided by law.” (4 Serg. & R. 265.)

We have then only to inquire whether the action sought by the relators was judicial in its nature; in other words, whether in deciding upon the application the judge exercised a judicial discretion.

The record shows that when first applied to, the respondent allowed a temporary injunction until a day set, when a further hearing could be had, and that after hearing the parties he refused to continue it, upon the ground that there was no equity in the petition. This certainly has the appearance of judicial action, though it may not be decisive. The statute regulating this remedy points in the same direction. Section 24, chapter 167, Gen. Stat. 1865 (Wagn. Stat. 1032), provides that injunction shall lie in the cases named, “whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages;” and section 1 provides that “injunctions may be granted by the Circuit Court, or any judge thereof in vacation;” and section 6 provides that notice shall be given the adverse party. It would seem that judicial action was contemplated by these provisions, as well by the judge in vacation as by the court upon the final hearing. The notice implies a hearing-- the consideration of all objections--and the exercise of judicial discretion.

That a final judgment on bills for injunction involves an exercise of judicial discretion is not denied. Indeed, discretion, in the ordinary sense of the word, can with more propriety be applied to the action of the court in this proceeding than in any other; for, in the language of Justice Baldwin in Bonaparte v. Camden & Amboy R.R. Co., 1 Baldw. Ch. 218, “there is no power the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or is more dangerous in a doubtful case, than the issuing of an injunction;” and Story (Eq., § 863) says that the granting or refusing is a matter resting in the sound discretion of the court, and in section 959 b, says that the courts will not lay down any “rules which will limit their power and discretion as to the particular cases in which injunction shall be granted,” and that the jurisdiction ought to be “guarded with extreme caution, and applied only in very clear cases.”

The books abound in observations by courts and commentators of similar import, implying the exercise of peculiar discretion upon application for injunctions; and no distinction seems to be made between a preliminary allowance and one upon final hearing. In Roberts v. Anderson, 2 Johns. Ch. 202, a preliminary injunction had been allowed, and on motion to dissolve it before final hearing, the chancellor remarked that “the granting or continuing the process must always rest in sound discretion, to be governed by the nature of the case.” Cory v. Yarmouth & N. R.W. Co., 3 Hare, 593, was an application to restrain the defendant from encroaching upon plaintiff's legal rights, and in passing upon the case the vice-chancellor said: “That is always a matter resting in the discretion of the court;” that, if with the plaintiff, “the court may, in the exercise of its...