State v. District Court of Second Judicial Dist. in and for Silver Bow County
| Citation | 190 P. 295,58 Mont. 90 |
| Decision Date | 24 May 1920 |
| Docket Number | 4624. |
| Parties | STATE EX REL. EXAMINING AND TRIAL BOARD OF POLICE DEPARTMENT OF CITY OF BUTTE ET AL. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY ET AL. |
| Court | United States State Supreme Court of Montana |
Original application by the State of Montana, on the relation of Examining and Trial Board of the Police Department of the City of Butte and another, for writ of prohibition directed to District Court of the Second Judicial District of the State of Montana in and for the County of Silver Bow, in which respondents move to quash the alternative writ of prohibition. Motion to quash alternative writ overruled, and peremptory writ granted.
Ed Fitzpatrick and Canning & Geagan, all of Butte, for respondents.
Prohibition to stay the action of respondents on writ of certiorari issued against relators at the instance of one James Burns discharged police officer of Butte.
The affidavit of relators recites that proceedings were commenced against Burns, charging acts constituting conduct unbecoming a police officer, notice given and hearing had as required by law, findings of the board sustaining the charges, and dismissal by the mayor. Thereupon Burns applied to the respondent court for a writ of certiorari, which was issued commanding relators to certify and return to said court a full transcript of the record of the hearing, including all exhibits and all testimony offered on the hearing. Relators appeared and moved to quash the writ for insufficiency of the affidavit, lack of jurisdiction in the court, and that the court had exceeded its authority in ordering a tribunal not a court of record to return a transcript of the testimony taken. The motion was denied. Respondents move to quash the alternative writ of prohibition on the grounds:
(1) That it does not appear from the affidavit upon which the writ was issued that relators are entitled to any relief by writ of prohibition or at all.
(2) That the facts set forth in said affidavit and application are not sufficient to authorize the issuance of the writ.
1. It is contended that there is no allegation or statement in the affidavit that relators are the persons beneficially interested, nor does it appear therefrom that they are so interested, nor that the same was made on behalf of the city of Butte.
Section 7228 of the Revised Codes provides that the writ may be issued "upon affidavit on the application of the person beneficially interested." A statement in the affidavit that relators are persons beneficially interested would be but a legal conclusion, and, if made, would not be sufficient, in the absence of a statement of facts showing the correctness of the conclusion. State v. Ellis, 47 La. Ann. 1602, 18 So. 636. The affidavit and application must show facts from which the court can determine the questions involved. Dakan v. Santa Cruz Superior Court, 2 Cal. App. 52, 82 P. 1129; In re Francis, 7 Idaho, 98, 60 P. 561; Clifford v. Parker, 13 Wash. 518, 42 P. 717. In determining whether the relators are entitled to the writ, the court will look to the allegations of fact rather than for the recital of conclusions on the subject.
While the application here is made only by the mayor and the examining and trial board of the police department of the city, it must be remembered that they are officers sworn to protect the interests of the city, and are the respondents in the very proceeding which they are seeking to have stayed, and it cannot be said that they are not parties in substance, or that they will not derive benefit from the issuance of the writ; on the contrary, it would seem that relators are vitally interested, as officials of the city, in determining whether they shall be compelled to reinstate an officer to thereafter work with and under them, after they have, in their official capacity, determined that he is unfit for the position.
In the case of State v. Superior Court, 4 Wash. 30, 29 P. 764, the Supreme Court of Washington held that a county attorney, whose duty it was to protect the treasury of the county, was entitled to apply for the writ to prevent illegal disbursements, stating:
--Citing High on Extra. Remedies, 764, 779.
This case, in our judgment, presents an entirely different question from that decided in State ex rel. Hackshaw v. District Court, 48 Mont. 481, 138 P. 1100, where it was held that the board of county commissioners were not beneficially interested in the subject-matter of an appeal from their order granting a saloon license. There the question was as to a private right or privilege, while here the best interest of the city, which relators are sworn to uphold, is involved. Further, the relators are directly affected by the order of the court compelling them to make return of a transcript, which they allege they cannot do, and which would, if effective, require them to thereafter employ a stenographer and make a transcript of the testimony in all proceedings before the board.
2. The affidavit recites the official status of relators; the filing of charges against Burns, notice to him of the time and place of hearing, his plea to the complaint and the hearing, findings and order of discharge of the officer. It sets out the complaint in full. It then recites the application of Burns for the writ of certiorari, setting out his affidavit in full; the writ issued out of the district court, their motion to quash the same, and the order overruling the motion. It then recites the fact that said board is not a court of record, and never had in its possession or under its control any transcript of the testimony, that relators have no plain, speedy, and adequate remedy at law, and that the trial court is proceeding and will proceed without jurisdiction. While these latter statements are in the nature of conclusions, relators have set out, in their affidavit, all of the facts from which the conclusions may be drawn, and if, as alleged, the respondent court was without jurisdiction to issue the writ complained of, in the first instance, and it further appears that the relators have no plain, adequate, and speedy remedy in the ordinary course of law--which questions will be considered later--the relators were entitled to the alternative writ, and the motion to quash should be overruled.
In addition to the motion, respondents filed their answer to the allegations of the application, which joins issue on the questions of law involved, and we will now consider such questions as are properly presented.
3. The relators' first contention is that the petition filed in the court below, and on which the writ of certiorari was issued, shows on its face that the board had jurisdiction of the party, and regularly pursued each and every statutory step required under the Metropolitan Police Law in order to invest it with jurisdiction. A careful examination of the affidavit of Burns, a copy of which is attached to the application here, discloses such to be the fact; but if, as is contended on behalf of Burns, the complaint on which he was tried before the board did not state facts sufficient to constitute the offense with which he was charged, or if, as alleged, there was no substantial evidence offered tending to prove the charges, even though the charges filed were sufficient, the writ issued by respondent court would lie, and relators here would not be entitled to the relief sought in this court. However, the application contained neither a copy of the complaint nor a résumé of the testimony, and the district court was in no position to pass upon the sufficiency of the complaint or the substantiality of the evidence.
4. The second ground urged is that affiant's showing was not sufficient to entitle him to the writ of certiorari; that his affidavit contained no facts, "but only a mass of legal conclusions." The affidavit gives no intimation as to what were the charges preferred in the complaint against him, nor does it set out facts to support the conclusions that "the complaint does not state facts sufficient to constitute the charge;" that "no substantial evidence whatever was introduced or produced," or that "the said board and mayor failed to comply with or see that all the essential requirements of law in said proceeding had been fully complied with," but required the court to accept the bald conclusions quoted in order to determine the question of its jurisdiction to issue the writ. Respondents now contend that, whether such determination was correct or not, the action of the district court is conclusive, as "the only purpose of the writ is to move the reviewing court to act. When the writ issues, the affidavit becomes functus officio. State ex rel. First Trust & Savings Bank v. District Court, 50 Mont. 259, 146 P. 539. But counsel mistakes the purport and application of the language quoted; it was used by the court in connection with the declaration that the affidavit "is not a pleading, and its averments cannot be traversed by any other pleading." Its averments are taken as true, and cannot be denied; but the court does not intimate that the sufficiency of those averments cannot be questioned, either on appeal or in appropriate proceeding for that purpose; the court in fact stated:
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