Williams v. City of New Haven , 68 Conn. 263 ( 1896 )

Andrews, C. J.

In an application for a mandamus, the alternative writ serves the same purpose as the complaint in an ordinary action, and it must show a, prima facie case upon which the extraordinary remedy asked for ought to be issued. In the present action the facts alleged in the alternative writ do show such a case, viz: a lawful judgment against the defendants, and their neglect and refusal to comply with that judgment.

The return made to an alternative writ of mandamus stands in the place of an answer in ordinary pleadings, and is insufficient unless it shows a complete legal right to refuse obedience to the command of the alternative writ. “ It must state the facts which justify such refusal clearly, specifically, and with such sufficient certainty that the court can see at once that such facts, if admitted or established, do furnish a legal alternative for obedience to the writ.” Woodruff v. N. Y. & N. E. R. R., 59 Conn. 63, 86; Brainard v. Staub, 61 id. 570; Moses on Mandamus, 203; High on Extraordinary Remedies, § 449. The function of the return is not simply to show what would amount to aprima faeie right in the respondent in the absence of any allegation to the contrary ; hut to show a right to refuse obedience to the writ in view of the allegations the writ contains, and if it does not do this it is demurrable. The return should, for the purpose of making an issue, set up a positive denial of the facts stated, or should state other facts sufficient to defeat the relator’s right. 14 Amer. & Eng. Ency. of Law, 230.

This is the rule by which the return before us must be treated. Does it show a legal right to refuse obedience to the command in the alternative writ? We are compelled to say that we think it does not. It is divided into five paragraphs. In none of them does it deny any of the allegations contained in the alternative writ. The matters and things set forth in the first, second and fifth paragraphs, are not alleged as an excuse for an entire non-compliance with the command of the alternative writ, but are addressed to the discretion of the Superior Court, as a reason why the issuing of the peremptory writ should be delayed for a time. The Superior Court has doubtless a large discretion in respect to the issuing or the non-issuing of a writ of mandamus; and very likely may fix a time prior to which the peremptory writ may not he issued. Whether or not the matters alleged in the above-named three paragraphs of the return are such as would justify the exercise of such a discretion, rests entirely with the Superior Court. That is a question not arising on the demurrer. In passing upon that question the Superior Court would not be likely to forget that the city had delayed for some five or six years to perform the judgment set forth in the alternative writ, for which delay no excuse is suggested other than its own convenience.

The matter set forth in the third and fourth paragraphs is somewhat different. It is to the effect that the charter of the city requires the common council, in December of each year, to make appropriations to meet the necessary expenses of the city for the year next ensuing, and forbids all city officers and boards to expend any money, or to incur any liability, in excess of the sums so appropriated; that the common council, in December, 1895, made certain appropriations for the expenses of the city for the year then next following, “ and nothing was appropriated by said common council for the purpose of constructing a bridge across the said freight branch of the N. Y., N. H. & H. R. R. Co.; ” that to construct said bridge, it would be necessary for some officer or board to incur a liability or expense in excess of the appropriations, which no officer or board had power under the charter or under the law to do.

If these facts are a legal excuse for refusing to obey the command of the alternative writ, they are so because the omission of the common council to provide the means for complying with the judgment of the Superior Court, absolves the city from the legal duty of performing that judgment. Except that these facts are stated with apparent sincerity and are argued with gravity, this part of the return would almost be deemed ironical; especially when it is presented to the same court which rendered the judgment sought to be enforced. The provisions of the charter of New Haven certainly furnish the rule of conduct for the officers of that city in the administration of its internal affairs, but that these provisions can furnish any excuse to the city or its officers for not obeying the laws of the State, or the judgment of a competent court, is not to be tolerated for an instant. Cook v. City of Ansonia, 66 Conn. 413.

There is another reason, not stated in the return but argued in the briefs, which we think it proper to notice. It is that the writ of mandamus should be directed' to that officer or board which is specially charged with the performance of the thing ordered to be done. In all those cases where there is such a corporate officer or board, we understand the rule to be as claimed by the city. In the case of State's Attorney v. Selectmen of Branford, 59 Conn. 402, the selectmen were such a board; in the case of State ex rel. Judson v. County Commissioners, 68 Conn. 16, the county commissioners were such a board; in the recent case of State ex rel. Bulkeley v. Williams, ibid. 131, the defendant was a town treasurer whose duty was expressly pointed out by the statute. By the charter of New Haven there is no such officer or board; and in such cases the mandamus may be directed to the city in its corporate capacity. Dillon on Municipal Corporations, § 861, b and note.

The Superior Court is advised that the return is insufficient, and to sustain the demurrer.

In this opinion the other judges concurred.