White v. Young

• Citation: 88 Idaho 188,397 P.2d 756
• Decision Date: 23 December 1964
• Docket Number: No. 9611,9611
• Parties: William W. WHITE, Plaintiff, v. Merlin S. YOUNG, Judge of the District Court of the Third Judicial District for the State of Idaho in and for the County of Boise, Defendant.
• Court: United States State Supreme Court of Idaho

Page 756

397 P.2d 756

88 Idaho 188

William W. WHITE, Plaintiff, v. Merlin S. YOUNG, Judge of the District Court of the Third Judicial District for the State of Idaho in and for the County of Boise, Defendant.

No. 9611.

Supreme Court of Idaho.

Dec. 23, 1964.

Elam, Burke, Jeppesen & Evans, Boise, for plaintiff.

Ariel L. Crowley, Idaho City, for defendant.

SMITH, Justice.

This proceeding presents the issue whether plaintiff William W. White or Ariel L. Crowley is the probate judge of Boise County for the period from the date of the general election, November 3, 1964, to the second Monday of January 1965.

The proceeding in effect is both for review (certiorari) and for writ of mandate. In form it is for a writ of mandate to compel defendant, district judge, to vacate an order issued by him directing William W. White to surrender the books and papers of the office of probate judge of Boise County, Idaho, to Ariel L. Crowley, and a subsequent order placing those records in the custody of the county recorder of said county.

Plaintiff ever since June 17, 1963, has served continuously in the official capacity as probate judge of Boise County, by virtue of his appointment by the board of county commissioners of that county, to fill a vacancy in that office created by the resignation of the then duly elected and qualified probate judge. That appointment is evidenced by the minutes of the board of county commissioners.

Mr. Crowley was duly elected to that office at the general election held November 3, 1964, as shown by the canvass of the votes had on November 9, 1964. Upon receipt of certificate of election he took and filed the oath of office; also furnished and filed the requisite bond, and claimed that he was entitled to the records pertaining to the office, which Mr. White refused to surrender. On November 12, 1964, Mr. Crowley, as plaintiff, commenced an action in the district court to compel delivery to him, as the alleged incumbent, of the records of said office. I.C. § 59-1002. The district judge, after hearing the cause, determined that Mr. Crowley was entitled to the records of said office and ordered Mr. White to surrender the same forthwith. On the same date of the order, Mr. White, as the defendant, filed a notice of appeal, but as appeared from the oral argument, the court denied supersedeas to White in stay of the order pending appeal; and while the court stayed such order for ten days, it ordered the probate court records to be turned over to the custody and possession of the county recorder of Boise County.

The issue of the title to the office of probate judge was not raised in that action, and no determination was made whether Mr. White or Mr. Crowley was the probate judge of the county for the balance of the term from the time of the November 1964 election to the second Monday of January, 1965. Suffice it to say that since it was determined that Mr. Crowley was entitled to the records of the probate court, it logically follows that such ruling was grounded upon Mr. Crowley's incumbency of that office.

November 23, 1964, Mr. White petitioned this Court to assume original jurisdiction for the issuance of a writ of mandate directing defendant district judge to order the return of the records of said probate court to White, and to show cause why the writ should not be made permanent. An alternative writ issued, to which defendant made return.

Defendant argued that Crowley was entitled to the records of that office, having been elected at the November 1964 general election, to fill the balance of the term of probate judge from the date of the general election to the second Monday of January, 1965, as well as thereafter to occupy that office for the ensuing two-year term.

Defendant contends that this Court lacks jurisdiction to rule upon the issues herein presented, urging several defenses, inter alia, that mandate may be sought only to compel the performance of a ministerial duty, and not a judicial duty as herein appears to be sought; that the determination in the district court was of both law and fact, and that, therefore, plaintiff's remedy is by appeal rather than by mandate to compel defendant judge to act; that this Court should not readjudicate the controversy, brought under the provisions of I.C. § 59-1002, inasmuch as the district court has adjudicated it; and that error, if committed, can be corrected only by appeal; that the district court action, in effect, determined that Crowley was entitled to the office of probate judge by determining that he was entitled to the records of the office, and that any redertermination of that issue in the present proceeding would constitute a collateral attack upon the judgment of the district judge, whereas the interested parties are Mr. White and Mr. Crowley, and that plaintiff's petition for writ of mandate has 'failed to state facts sufficient to justify the writ of mandate.'

Plaintiff's pleadings, being his verified petition and supporting affidavit, in effect allege that the other of defendant judge unlawfully deprives plaintiff, as probate judge, of the records, files and documents of the probate court of Boise County, being the court over which he lawfully presides, and that plaintiff has been unlawfully deprived of the right to carry out the duties of the office of probate judge. The context of plaintiff's pleadings is to the effect that defendant district judge and the district court, in entering the order, acted in excess of, and beyond the jurisdiction of, said court. Plaintiff additionally seeks an order of this Court restoring him to possession of the office and its records.

Appellant's pleadings being verified and supported by affidavit conform to the requirements of both an application for writ of review I.C. § 7-203, and writ of mandate I.C. §§ 7-302 and 7-303.

I.C. § 7-202, relating to the granting of the writ of review, reads:

'A writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and tehre is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.'

I.C. § 7-302, concerning the issuance of the writ of mandate, reads:

'It [writ of mandate] may be issued by any court except a justice's or probate court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and the enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.'

In further answer to defendant's contention that this Court has no jurisdiction over the subject matter and the issues involved in this proceeding, attention is directed to Idaho Const., Art. 5, § 9 which in part reads:

'* * * The Supreme Court shall also have original jurisdiction to issue writs of mandate, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction.'

Bouthton v. Price, 70 Idaho 243, 215 P.2d 286 (1950), was an original mandamus proceeding commenced in the Supreme Court wherein it was urged that the Court had no jurisdiction to entertain the proceeding. In answering that contention this Court stated:

'In determining our jurisdiction to hear and determine this case, we are not concerned with whether the petition states a good cause of action, with whether the plaintiff is entitled to the relief prayed for, or with whether we have power to render a declaratory judgment in a mandamus proceeding, or at all. We are only concerned with whether the action belongs to that class of cases of which we have original jurisdiction.'

In further support of such position the Court, in Boughton v. Price, quoted from 15 C.J., Courts, pp. 734-735, § 35:

"Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action; and, as used in the constitutions and statutes, the word 'jurisdiction' means jurisdiction as to subject matter only, unless an exception arises by reason of its employment in a broader sense. Such jurisdiction the court acquires by the act of its creation, and possesses inherently by its constitution, and it is not dependent upon the sufficiency of the bill or complaint, the validity of the demand set forth in the complaint, or plaintiff's right to the relief demanded, the regularity of the proceedings, or the correctness of the decision rendered."

See also 21 C.J.S. Courts § 35 b.; Richardson v. Ruddy, 15 Idaho 488, 98 P. 842 (1908); Wayne v. Alspach, 20 Idaho 144, 116 P. 1033 (1911); Sizemore v. Board of Com'rs, 36 Idaho 184, 210 P. 137 (1922); Rich v Williams, 81 Idaho 311, 341 P.2d 432 (1959).

The proceeding at bar presents a matter of public importance involving as it does the right of incumbency to the office of probate judge and the records, files and documents of the probate court of Boise County.

I.C. § 59-1002, under which the district court action was brought, provides:

'If any person, whether a former incumbent or another person, refuse or neglect to deliver to the actual incumbent any such books or papers, such actual incumbent may apply by petition to any court of record sitting in the county where the person so refusing or neglecting resides, or to any judge of the district or probate court residing therein, and the court or officer applied to must proceed in a summary way, after notice to the adverse party,...