Wright v. Kelly

• Decision Date: 31 December 1895
• Citation: 43 P. 565,4 Idaho 624
• Parties: WRIGHT v. KELLEY ET AL., COMMISSIONERS OF LOGAN COUNTY
• Court: Idaho Supreme Court

43 P. 565

4 Idaho 624

WRIGHT v. KELLEY ET AL., COMMISSIONERS OF LOGAN COUNTY

Supreme Court of Idaho

December 31, 1895

MANDAMUS-WHEN WRIT WILL NOT ISSUE.-Writ of mandate will not issue where there is a plain, speedy, and adequate remedy at law.

WHERE WRIT MUST BE APPLIED FOR.-The writ must be applied for in the first instance from the district court, unless there appears some reason which renders it indispensable that application should be made directly to the supreme court.

AGAINST WHOM THE WRIT WILL ISSUE.-Where the writ is sought to compel the commissioners of a county to perform an official act, the respondents must be de facto officers of such county at the time such writ is to issue.

CONSTITUTIONALITY OF LEGISLATIVE ACT CANNOT BE DETERMINED IN MANDAMUS PROCEEDINGS.-The constitutionality of an act of the legislature cannot be determined collaterally by the court in an application for a writ of mandate by a private party to enforce a private right.

(Syllabus by the court.)

Original proceeding by mandamus.

Demurrer sustained, and writ denied.

Hawley & Puckett and Thomas G. Hailey, for Petitioner.

"Mandamus lies to compel the performance of an act enjoined by law." (Rev. Stats., 4977; High on Extraordinary Remedies, secs. 31, 323; Merrill on Mandamus, 134, and cases cited.) "Where a plain, specific duty is imposed on a public officer or body, and they refuse, or unreasonably neglect, to perform the duties required of them by law, they will be put in motion by mandamus." (School Dist No. 2 v. School Dist. No. 1, 3 Wis. 333.) Mandamus will lie to compel a board of county commissioners to pass on and audit claims against the county properly presented to them for allowance. (Rev. Stats., sec. 1759; Merrill on Mandamus secs. 32, 34, 36, 111; 14 Am. & Eng. Ency. of Law, 147, note 183, note, and cases therein cited.) The constitutionality of an act of the legislature may be raised upon mandamus, or its counterpart, prohibition. (14 Am. & Eng. Ency. of Law, 223; State v. Stein, 43 N. J. L. 542; Legg v. Mayor etc., 42 Md. 203.)

Johnson & Johnson, for Defendant (George M. Parsons and Selden B. Kingsbury, of Counsel).

As to the petition for a writ of mandate against the three defendants named as commissioners of Logan county: The petition itself shows that these defendants are not, and were not at the time of the commencement of these proceedings, acting in that capacity, and that they probably will not again so act, "unless the said persons are by the orders of this court compelled to meet as a board of county commissioners of said Logan county." The petition, while it thus shows conclusively that these defendants are not thus acting, does not disclose whether any other persons are so acting, whether any other persons are so acting, whether any other persons are de facto commissioners of Logan county. The petition tells us that since they qualified, in or prior to January, defendants have acted, but for what part of the time since the first Monday of January, we are not told; but we are told that they were not acting for a long time prior to the filing of the petition. We are told that they still constitute, and are, the board of county commissioners of said Logan county, that is, they are in law (for they are not acting as such), which is a mere legal conclusion. Mandamus will go only to officers de facto, for it is elementary that the right, title or possession of an office will not be tried collaterally on mandamus. (High on Extraordinary Remedies, sec. 37; Dixon, C. J., in State v. Beloit, 21 Wis. 280, 91 Am. Dec. 474; 2 Spelling's Extraordinary Relief, sec. 1386.) "Mandamus should not be issued, as a general rule, in cases where the right of the relator depends upon holding an act of the legislature unconstitutional." (14 Am. & Eng. Ency. of Law, 100.) Nor should it be allowed in cases involving numerous questions of law and fact, and where many acts of parties connected with the matter may be valid or void, depending upon circumstances and facts attending them at the time, and which parol proof is necessary to establish. (United States v. Commissioner, 5 Wall. 563; People v. Stephens, 2 Abb. Pr., N. S., 348; Hall v. Supervisors, 20 Cal. 591.) Or when it becomes necessary to decide on the constitutionality of a law involving the interests of third persons. (Smyth v. Titcomb, 31 Me. 272; 4 Wait's Actions and Defenses, 376; 4 Field's Lawyers' Briefs, 440; 14 Am. & Eng. Ency. of Law, 100, 101; High on Extraordinary Remedies, sec. 143; Maxwell v. Burton, 2 Utah, 599; Alderton v. Binder, Pistorious v. Stempel, 81 Mich. 133, 45 N.W. 968; 2 Beach on Public Corporations, sec. 1563; 2 Spelling's Extraordinary Relief, sec. 1536; Smith v. Mayor etc., 81 Mich. 123; 45 N.W. 964; Davis v. Superior Court, 63 Cal. 581; Fraser v. Freelon, 53 Cal. 644.) This demand is made by a private party as the "party beneficially interested," and the question is, Has he, as such private person, any right to the writ? His demand is based on his desire to present to the respondents, as the board of commissioners of Logan county, a claim against Logan county. For what purpose? That it may be allowed and be paid. He has no other right than that of payment. But the law provides Blaine county is the successor of Logan county, and that he may present his claim to the Blaine county board, and provides for its allowance and payment by Blaine county. A state may, without impairment of the obligation of a contract, regulate, or even limit the remedies for the enforcement of that contract, provided that it does not take away all remedies therefor, and that it leaves in force a substantial remedy. (Patterson's Federal Restraints on State Action, sec. 61, p. 149, sec. 75, p. 179.) "Changes in the form of action and modes of proceeding do not amount to an impairment of the obligations of a contract, if an adequate and efficacious remedy is left." (Antoni v. Greenhow, 107 U.S. 774, 2 S.Ct. 91; High on Extraordinary Remedies, sec. 436; Linden v. Board of Supervisors, 45 Cal. 6.) "A court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has, therefore, no interest in defeating it." (Cooley's Constitutional Limitations, 6th ed., 196.) The solution of constitutional questions is no reason for mandamus proceedings. (High on Extraordinary Remedies, sec. 33; Ewing v. Turner, 2 Okla. 94, 35 P. 951-954, 955.) Where a public organization of a corporate or quasi corporate character has an existence in fact, and is acting under color of law, and its existence is not questioned by the state, its existence cannot be collaterally drawn in question by private parties. (Burt v. Winona etc. R. Co., 31 Minn. 472, 18 N.W. 285, 289; 1 Dillon on Municipal Corporations, 4th ed., sec. 43a; Cooley's Constitutional Limitations, 254, 309, 310.) An action which involves the determination that a statute is unconstitutional certainly involves a judicial function. (People ex rel. Failic v. Ferris, 76 N.Y. 326.) "The court will never decide a question involving the constitutionality of a statute if the merits of the case in which it is involved can be determined without such decision." (Parker v. State ex rel. Power, 133 Ind. 178, 32 N.E. 840, 33 N.E. 119; Throop on Public Officers, secs. 628, 637; Mechem on Public Offices, sec. 318; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Brown v. O'Connell, 36 Conn. 432, 4 Am. Rep. 89; Meagher v. Storey Co., 5 Nev. 244; Ex parte Strang, 21 Ohio St. 610; Commonwealth v. McComb, 56 Pa. St. 346; State v. Bloom, 17 Wis. 521; Kirker v. City of Cincinnati, 48 Ohio St. 507, 27 N.E. 898.) Mandamus will not lie to compel an officer to do an act which, without its command, it would not have been lawful to do. (State v. Board of Commrs., 42 Kan. 739, 22 P. 735; Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 P. 129; Johnson v. Lucas, 11 Humph. 306; State v. Judge, 15 Ala. 740; Gillespie v. Wood, 4 Humph. 437; Davis v. Porter, 66 Cal. 658, 6 P. 746; Sullivan v. Shanklin, 63 Cal. 247; Pack v. Supervisors, 36 Mich. 377.)

This is a petition filed by plaintiff, Robert H. Wright, against the respondents, to compel them, as county commissioners of Logan county, to meet as said commissioners of Logan county, and to either reject or allow his bill against said county for the sum of thirty-six dollars. The petition alleges: That the respondents qualified as commissioners of Logan county, Idaho on or about the first day of January, 1895. Afterward, to wit, on the fifth day of March, 1895, by an act of the legislature, Alturas and Logan counties were abolished, and Blaine county created out of and including all of the territory theretofore comprised in the two counties of Alturas and Logan aforesaid. That said Fred W. Gooding and Sidney Kelly, aforesaid, were by the terms of said act made two of the commissioners of Blaine county, and, together with I. T. Osborne, constituted, and now constitute, the board of county commissioners of Blaine county. By section 7 of said act (Sess. Laws 1895, p. 33), it was provided that "all valid and legal indebtedness of Alturas and Logan counties shall be assumed and paid by the county of Blaine," as then and thereby constituted. It appears, then, that the alleged indebtedness of Logan county to this petitioner became and was the indebtedness of Blaine county, which contained all the territory of Logan and Alturas counties, as aforesaid. That, since the passage of said act of the legislature, said Sidney Kelly and Fred W. Gooding have qualified and acted as two of the county commissioners of Blaine county. That afterward, to wit, on or about the eighteenth day of March, 1895, an act, having theretofore been passed, was approved by the governor, creating...