People ex rel. Smith v. Olds , 3 Cal. 167 ( 1853 )

Wells, Justice,

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

This is an application for an alternative mandamus to the defendant, to compel him to hand over to the relator the books and papers of the office of the Clerk of the Superior Court of the City of San Francisco, and to allow him to enter upon the discharge of said office, to which he claims to have been elected.

To the general allegations contained in the application of the relator, the defendant filed a general demurrer, on the ground that the relator should have sought his remedy against the defendant by an action upon information in the nature of a quo warranto, and not by a writ of - mandamus; and also a general answer denying the facts on which the election is claimed; to which the relator has demurred and also replied.

The court below sustained the demurrer and dismissed the petition, on the ground that the proceeding by mandamus was not the proper remedy, and we are asked on appeal to reverse this decision.

It is contended, on the part of the appellant, that the writ of mandamus is the proper remedy both at common law and under the statute of this State; that the statute is explicit, and gives this remedy in precisely such a case as this.

At common law, the proceeding by mandamus was employed as a supplemental and extraordinary writ of a remedial character, and was resorted to early in the annals of English jurisprudence, from the necessity of establishing a residuary method to be used on occasions where the law had provided no other remedy, and where injustice there ought to be one; upon the principle that no right should be without a remedy. According to Lord Mansfield, “If there be a right and no other specified remedy, it will not be denied; in fact, where there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be a matter of public concern, or attended with profit, and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, the court will interpose by mandamus.” Rex v. Barker, 3 Burr. 1266, 1267. By means of this supplementary remedy, also, inferior officers and tribunals are forced to perform their duties. Blackstone describes this writ as, in general, a command issuing in the name of the sovereign authority from a superior court, and directed to any person, corporation, or inferior court of jurisdiction within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty. But all the authorities agree, that it lies only to prevent a failure of justice, and where there is not a specific remedy in the ordinary course of law. To authorize its use, there should not only be a want of specific legal remedy, but also there should be a specific legal right (see case of Fish v. Weathemore, 2 Johns. Cases, p. 217,6 notes), and the right must be perfect, not inchoate. The People v. The Trustees of the City of Brooklyn, 1 Wend. 318. It is a rule of general application, that where there is any other specific legal remedy for the party complaining, the writ of mandamus will not lie. But where there is no other adequate specific remedy, resort may be had to this high judicial writ. Per Morton, J. 20; g. Pick. J. 495. In The People v. Stephens, 5 Hill, 626, a case similar in many respects to the present, being a proceeding where the relator claimed to be the Clerk of the City of Brooklyn, and sought by this writ, to be put in possession of the books and papers belonging to the office, while the defendant was actually in the possession of the office under color of lawful right to hold it, Bronson, Justice, in delivering the opinion of the court, remarks, that “ where the party has another specific remedy, a mandamus will not be granted. This (he says) has heen decided a hundred times, and the rule is so well settled that it would be a waste of time and paper to cite the books. Many of the cases are collected in Angel and Ames on Corp. 577-8,2d ed.and Judge Cowen, without passing upon the other questions, concurred in giving judgment for the defendant on the express ground, “ that the relator, if he was clerk, had another specific legal remedy for obtaining the books and papers.” It is still insisted that many authorities are the other way, and according to Mr. Dane, 6 Davis’s Abr. 326, the authorities, both English and American, are much in favor of mandamus, especially the more modern cases; and prominent among the cases cited, and upon which the relator most confidently relies, is that of Dew v. The Judges of Sweet Springs, &c., 3 Hen. & Munf. p. 1. We have carefully examined all the authorities cited by the appellants upon this subject, within our reach, and have found that in no case where the writ of mandamus has been suffered to go, has it appeared that there was any other more speedy or adequate remedy. In the Virginia case, as Judge Bronson properly suggests, 5 Hill. 626, it did not appear that the relator had any other adequate remedy, and indeed the decision rested upon the ground, that there was no other remedy so well adapted to the nature of that case ; and generally, where the authorities are claimed to be in favor of mandamus, it will be found that they arise when quo warranto is not regarded as affording a specific remedy; and, indeed, it may be said, that all the exceptions to .the general rule depend upon an absence of another specific, adequate, or speedy legal remedy, or arise from the nature of the remedy which is to exclude the application of the writ; as, for example, where such remedy is incompetent to afford relief to the applicant upon the very subject-matter of his application. Therefore, it has been said, that if the party have another speedy, specific legal remedy, yet if it be obsolete, as in assize, this writ will lie; so, also, if such remedy be extremely tedious (as it sometimes occurs, where it is by quo warranto), it will lie, since in such cases the remedy is inadequate to do justice. 10 Wend. 396, per Nelson, al. And it is said that mandamus is the proper process for restoring a person to an office from which he has been unjustly removed; but that is where, for example, a person has been removed from an office by a corporation without authority, or where a court has unlawfully removed a clerk; for in such case there is no other specific remedy, and it is used to compel the corporation or court to do right, and to restore the party to an office from which he has thus been removed. Such was the purpose for which it was resorted to in the Virginia case; it was to restore the relator to an office he had once exercised and enjoyed, to which his title was clear, and of which he had been unlawfully deprived by the judges. In the case in 20 Pick., cited by the appellant, the relator asked for a mandamus to compel the Board of Examiners to give him a certificate of election, and it was granted, upon the ground that no other remedy would reach the evil; but it was expressly stated by the court that it would not have been granted had there been any other adequate specific remedy.