Territory ex rel. Tanner v. Potts

• Decision Date: 31 January 1879
• Citation: 3 Mont. 364
• Parties: TERRITORY EX REL. TANNER, appellant, v. POTTS, respondent.
• Court: Montana Supreme Court

3 Mont. 364

TERRITORY EX REL. TANNER, appellant,

v.POTTS, respondent.

Supreme Court of the Territory of Montana.

January Term, 1879.

Appeal from Third District, Lewis and Clarke County.

THIS cause was tried in the court below by WADE, C. J., on demurrer to the so-called complaint and was appealed from the judgment sustaining the demurrer.

E. W. TOOLE, for appellant.

The duty sought to be enforced in this action is a purely ministerial one enjoined by act of legislature, and not one belonging in any way to the office of governor. 2 Mon. 256; 51 Cal. 328-338.

The petition or affidavit shows that the plaintiff is beneficially interested; the relief sought is against a public officer charged with performance of a duty enjoined by law; and that he has no other plain, speedy and adequate remedy at law.

There is no controversy as to the amount to which plaintiff is entitled, if entitled at all, so that there is no question involving the discretionary powers of defendant. The demurrer admits all. The plaintiff has a legal claim and the law gives no other remedy. 7 Cush. 226; Moses on Man. 54, 55, 79, 86.

This is not of the class of actions affected by the Statute of Limitations. 15 Minn. 221; 2 Mon. 258.

The statute relied on only took effect August 1, 1878, it cannot apply to the case at bar. 17 Wall. 596;10 Cal. 305; Angell on Lim. 261.

Sections 447-8 of our Criminal Practice Act do not warrant the interpretation that the messenger shall receive nothing in case he does not return the fugitive. It is the duty of the governor to know that the fugitive is in custody before issuing his warrant, and when the messenger has performed his duty in obedience thereto he is entitled to compensation.

SANDERS & CULLEN, for respondent.

Mandamus only issues to an inferior tribunal or person and would not properly apply to control the acts of the governor. See High on Ex. Leg. Rem., § 120 et seq.

This action is an attempt to interfere with the discretionary power of the governor, which all authorities agree cannot be done. High on Ex. Leg. Rem., § 120; Moses on Man. 80; McDougall v. Bell, 4 Cal. 178;Marbury v. Madison, 1 Cranch, 169.

Section 448 of Criminal Practice Act vests the governor with the authority to pass upon the justice and legality of the messenger's claim, and places it beyond the reach of mandamus.

Neither under the United States nor Territorial statutes is an officer entitled to pay unless he brings the prisoner with him. His only remedy is an appeal to the legislature.

This action is an attempt indirectly to get judgment against the people of the Territory on an unliquidated demand of extortionate dimension. It is an unwarranted use of the process. High on Ex. Leg. Rem., §§ 101-2.

The supreme court could not try the issues of fact that would arise in the case. The law has established another tribunal for questions of this kind. United States v. Guthrie, 17 How. 284.

According to the decisions of the United States courts, this proceeding would be an action to which the Statute of Limitations applies. Kendall v. United States, 12 Peters, 524;Kendall v. Stokes, 3 How. 100;Commonwealth v. Dennison, 24 How. 97.

The Statute of Limitations is properly applicable in any event. Ang. on Lim. 20; Miller v. M'Intyre, 6 Peters, 61;Elmendorf v. Taylor, 10 Wheat. 152; Story on Part., § 233 a.

For New York court authorities on this case see People v. Colburn, 20 How. Pr. 378; also, People v. Lewis, 28 Id. 159.

KNOWLES, J.

This is an application for a writ of mandate, at the instance of the above-named appellant, Tanner, commanding the above-named respondent, Potts, as governor of Montana Territory, to audit and allow a claim of said Tanner for expenses incurred and for compensation for services, while acting as messenger under the appointment of the said Potts, and required by the warrant issued by him as governor of Montana Territory, to proceed to the State of Ohio and there receive and convey to Montana one Gus. Callahan, who was a fugitive from justice therefrom, and who had been duly indicted for an offense against the laws thereof, in the county of Gallatin in said Territory.

I think it my duty to remark that the proceedings in this case have been treated throughout as though it was a civil action, legal in its nature. The applicant for the writ is treated and named as the plaintiff in what is termed a complaint and the said Potts is called the defendant, and this so-called complaint is demurred to by the so-called defendant. The practice in this respect was so fully considered and determined in the case of Chumasero v. Potts, 2 Mon. 242, that I think it surprising that the courts of the Territory should be confronted with such proceedings. The writ of mandate, under our statute, issues upon an application, which is nothing more than a motion, and this supported by an affidavit of the applicant or some one in his behalf. When the writ issues, it is in the name of the Territory, on the relation of the beneficiary, and if the writ is in the alternative, the person who is commanded by the writ must show cause why the writ should not be made peremptory, by an answer thereto. If the affidavit which should not be entitled is insufficient, this may be attacked on motion to quash the writ. In mandamus proceedings there can be no such case as Tanner v. Potts. The proceedings should be entitled: “The Territory of Montana at the relation of Tanner v. Potts.” This court is called upon to treat this complaint as an affidavit to support an application for a writ of mandate, and the demurrer thereto as a motion to quash the writ. It is to be hoped that the profession will more carefully observe the well-established rules of practice in this proceeding hereafter.

The first point I shall consider is: Were the proceedings herein barred by the Statute of Limitations? The proceeding to procure a writ of mandate, according to the decision of this court in the case of Chumasero v. Potts, cited above, is not what is denominated a civil action under our Code. The Statute of Limitations then does not in express terms apply to the same. That applies to civil actions. The issuance of...