State v. District Court of Fifteenth Judicial Dist. In and For Musselshell County

• Citation: 300 P. 235,89 Mont. 531
• Decision Date: 04 May 1931
• Docket Number: 6858.
• Parties: STATE ex rel. MUSSELSHELL COUNTY et al. v. DISTRICT COURT OF FIFTEENTH JUDICIAL DIST. IN AND FOR MUSSELSHELL COUNTY et al.
• Court: United States State Supreme Court of Montana

300 P. 235

89 Mont. 531

STATE ex rel. MUSSELSHELL COUNTY et al. v. DISTRICT COURT OF FIFTEENTH JUDICIAL DIST. IN AND FOR MUSSELSHELL COUNTY et al.

No. 6858.

Supreme Court of Montana

May 4, 1931

Original application by the State, on the relation of Musselshell County and another, for mandamus to compel the District Court of the Fifteenth Judicial District in and for Musselshell County, and William L. Ford, Judge presiding, to issue a writ of review directed to the State Board of Equalization or an order to show cause why the same should not issue.

Peremptory writ issued.

E. J Strommes, of Great Falls, for respondents.

MATTHEWS J.

In December, 1930, the relators, Musselshell county and Norman M. Moody, its clerk, filed in the district court a petition for a writ of review, directed to the state board of equalization, to determine the correctness of certain orders made by the state board respecting the levy and assessment of taxes against the Morris Development Company, a corporation, on lands lying in Musselshell county. Honorable William L. Ford, judge of the Fourteenth judicial district, was duly designated to hear the matter, accepted the call, and, in due time, called the matter up; whereupon relators presented their petition to the court, and asked that the writ command the state board to certify its records to the court or show cause why it should not do so. In disposition of the matter, the judge, in writing, declared: "It is hereby ordered that the said application be, and the same is hereby, denied and the court and the judge thereof hereby refuses to issue said Writ of Review or an Order to show Cause why such Writ of Review should not issue."

Relators applied to this court for an alternative writ of mandate to compel the district court and the Honorable William L. Ford to assume jurisdiction of the matter and to act in the premises, or to show cause why they should not do so. The application contains the record made by the district court. From the petition for the writ of review, we determined that relators made out a prima facie right to the issuance of the writ, and thereupon ordered the issuance of an alternative writ of mandate, returnable on April 11, 1931. The writ was duly issued and served, and, upon return day, the respondent court and judge appeared by counsel and moved to quash the writ on the ground of lack of jurisdiction, and, without waiver of the motion, made due return to the writ.

The question presented for determination is whether or not, under these facts and in conformity with the rules governing in this class of cases, we have authority to issue a writ of mandate.

In determining whether action by a court or judge may be compelled by the writ of mandate, the essential questions to be decided are, whether the act sought to be compelled is one "which the law specially enjoins as a duty resulting from an office, trust, or station" (section 9848, Rev Codes 1921), and whether there is "a plain, speedy, and adequate remedy in the ordinary course of law" (section 9849, Id.). A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second divests the court of authority to issue it. State ex rel Breen v. Toole, 32 Mont. 4, 79 P. 403; State ex rel. King v. Second Judicial District Court, 24 Mont. 494, 62 P. 820. The rules and tests hereinafter discussed are only statements as to the methods by which the courts have determined the existence of the two conditions necessary to the issuance of the writ. 16 Cal. Jur. 819.

Among these tests is the well-established rule that mandamus lies to compel action, but not to control discretion (State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 P. 485; State ex rel. Scollard v. Board, 52 Mont. 91, 156 P. 124), and, in its application, it is undoubtedly the general rule that a court has no power by writ of mandate to compel a subordinate judicial officer to reverse a conclusion already reached, to correct an erroneous decision, or to direct him in what particular way he shall proceed or shall decide a special question. "But it is equally a part of this general rule that the court always has the power by means of such a writ to compel an officer to try and decide a controversy within his jurisdiction, or to perform any other plain duty imposed by law, and it is very generally admitted that the power to compel such an officer to the trial and determination of a case which it is his duty to hear and decide necessarily includes within it the power to compel him to reverse and set aside any erroneous decision he may have made to the effect that he will not proceed to such trial and judgment." 18 R. C. L. 299. In other words, mandamus will lie to compel a court to assume jurisdiction and determine the merits of the cause, where it has erroneously refused to do so upon what may be termed a preliminary objection based upon a matter of law (38 C.J. 611, and cases cited), and this is so whether or not there is a "preliminary objection" interposed. If a court erroneously decides, as a matter of law, that it has no jurisdiction, and thus denies a litigant the right to be heard on the merits, and refuses to determine the facts, or to proceed, it has failed to perform a duty imposed by law, and mandamus will lie, unless there is a specific and adequate remedy by appeal, writ of error, or other method of review. 38 C.J. 610, and long list of cases cited, among them, several decisions by this court.

The reason why this seeming conflict with the general rule is in fact in harmony with that rule is clearly explained in a quotation found in State ex rel. Keane v. Murphy, 19 Nev. 89, 6 P. 840, 841: "The rule above stated applies only to the act to be commanded by the writ, and not to the determination of purely preliminary questions. In every case in which an officer is to take any action, *** the officer must first make up his mind as to whether the conditions upon which he is to act exist. In arriving at his conclusion he may have to ascertain the meaning of a law, or satisfy himself as to the existence of facts, or both. Such questions may be of extreme difficulty. The law governing the case may be obscure and ambiguous, and the facts may depend upon conflicting evidence. But they have to be determined by the officer in every case, whatever may be the nature of the act to be performed. *** They are not what the writ commands, if issued. The writ does not command the officer to make up his mind as to whether the act is proper to be performed. The court determines that question before issuing the writ. *** The question must be determined, in the first instance, by the officer, before he performs, or refuses to perform, the act, and afterwards by the court, before the writ can issue. As they must be determined before the act can be commanded, they are clearly distinct from and preliminary to the act. Now the rule above stated does not apply to such preliminary questions. If it did, no writ of mandamus could ever issue, and the machinery provided by the Code for trying such questions would be useless. The distinction above stated applies, not only where the act to be performed is purely ministerial, *** but also where it is judicial in its nature."

As stated by the Supreme Court of Michigan, "where an inferior court has refused to entertain jurisdiction on a matter preliminary to a hearing on the merits mandamus is an appropriate remedy; *** this is not an application to review an order made in the course of a proceeding, but rather for an order compelling the court to act." Brown v. Pontiac Mining Co., 105 Mich. 653, 63 N.W. 1000, 1001.

These, and many other, cases are cited and comments thereon made in an exhaustive note entitled "Mandamus to compel court to assume or exercise jurisdiction where it has erroneously dismissed the cause or refused to proceed on the ground of supposed lack of jurisdiction," found in 4 A. L. R. at page 582.

The foregoing rules authorizing the issuance of a writ of mandate to compel a hearing and disposition of a pending case, even though the trial court has, in good faith, determined that the matter...