Territory ex rel. Wallace v. Woodbury

• Decision Date: 01 April 1890
• Citation: 44 N.W. 1077,1 N.D. 85
• Parties: Territory ex rel. Wallace et al. v. Woodbury et al., County Commissioners.
• Court: North Dakota Supreme Court

1 N.D. 85

44 N.W. 1077

Territory ex rel.

Wallace et al.

v.Woodbury et al., County Commissioners.

Supreme Court of North Dakota.

April 1, 1890.

Syllabus by the Court.

The granting or withholding of the writ of mandamus rests in a measure in the discretion of the court, but that discretion may not be capriciously exercised. Where justice will be subserved by temporarily withholding the writ, and injustice might result from its immediate issue, the court will refuse to issue it until a different case can be presented. Judgment against a county having been affirmed by territorial supreme court, and an appeal having been taken to the federal supreme court, but no stay of execution procured, this court, in the exercise of its discretion in mandamus cases, will regard the policy of this jurisdiction, that an appeal to a state court by a municipal corporation shall operate as a stay without an undertaking, and in effect give the stay by withholding mandamus to compel the levy of a tax to pay the judgment until final decision in the federal supreme court.

Application for an original writ of mandamus.W. E. Dodge, for relators. Jesse A. Frye, Dist. Atty., for defendants.

Corliss, C. J.

This proceeding was instituted in the territorial supreme court to compel the defendants to levy a tax to pay a certain judgment recovered against the county of Stutsman. We are not called upon in this case to determine the question of our original jurisdiction of the writs specified in the constitution, or the extent of such jurisdiction, if any. We take this case as the successor of the territorial supreme court. We are not asked to initiate jurisdiction by the writ of mandamus. The jurisdiction has already attached, and it is the duty of this court, as the succcessor of the territorial supreme court, to pass upon the merits of this proceeding. The relators ask for a peremptory writ, admitting the truth of all the facts set forth in the original and amended return, which will control the court in the disposition of this matter. On the other hand, the defendants move to quash the alternative writ. This motion we think should be granted. The writ of mandamus is not a writ of right. Its allowance rests in the discretion of the court. That discretion, however, is not to be capriciously exercised. High, Extr. Rem. §§ 6, 9; Devereaux v. City of Brownsville, 29 Fed. Rep. 742-751; People v. Common Council, 78 N. Y. 56-61. If to refuse to issue the writ would result in a denial of justice no court can, in the rightful exercise of discretion, withhold it. But where the temporary denial of the writ will not only not work injustice, but on the other hand will prevent possible irremediable injustice, no court should look merely to the bare question of technical legal right, and ignore the facts presenting a clear case for the exercise of its equitable discretion to withhold the remedy until the granting of it cannot possibly result in ultimate wrong. Said the court in State v. Graves, 19 Md. 351, speaking of mandamus: “Not a writ of right, it is granted, not as of course, but only at the discretion of the court to whom the application is made, and this discretion will not be exercised in favor of applicants, unless some just or useful purpose may be answered by the writ.”No just purpose would be answered by the issuance of the writ under the facts of this case. On the contrary, it might result in a wrong which could never be redressed. The judgment of the district court on which this proceeding is founded was on appeal affirmed by the supreme court of the territory,¹ and it is undisputed that an appeal in good faith has been taken from such judgment of affirmance to the federal supreme court, and is now pending in that court. On this...