Taylor v. Girard , 54 Idaho 787 ( 1934 )

The first question which should be decided in this case may be stated as follows: Is the writ, of prohibition available as a remedy to prevent the Secretary of State from performing a clerical, ministerial act which the law has made it his duty to perform?

I. C. A., section 33-636, made it a duty, which has been performed by the state board of canvassers, to certify the nominees to the Secretary of State. It is:

"For the purpose of canvassing the results of the nominating election as herein provided, the state board of canvassers shall meet at the office of the secretary of state at ten o'clock in the forenoon of the eleventh day after the nominating election and said board shall canvass the votes for candidates for United States senator, representatives in congress, state and district offices, and shall certify the nominees of the different parties therefor to the secretary of state, not less than thirteen days after the nominating election."

I. C. A., section 33-645, commands the act here sought to be prohibited. It provides:

"Not less than thirty days before an election to fill any public office, the secretary of state shall certify to the county auditor of each county within which any of the electors may by law vote for candidates for such office, the name and description of each person nominated for such office, as specified in the certificates of nomination filed with the secretary of state."

The duty of the county auditor with respect to the preparation of the ballot is prescribed by the same section, as follows:

"As soon as the county auditor shall have received the information required to be certified to him by the secretary of state, as provided in the section next preceding, it shall. be his duty to compile in ballot form the information contained in said certificate . . . ."

Miller v. Davenport, 8 Idaho 593, 70 P. 610, was a case wherein writ of prohibition was sought to prohibit a county auditor from placing upon the official ballot the name of a candidate for district judge which had been certified to him by the Secretary of State. The court said:

"This contention is not well founded. County auditors, so far as arranging the official ballots are concerned, act in a clerical capacity, and are not clothed with judicial orquasi judicial power. It is the duty of county auditors to place upon the official ballot, in the proper column, the names of the candidates for the different offices who have been nominated, and whose nomination has been duly certified in accordance with the provisions of our election laws. They have no discretion in the matter. They cannot go behind the certificates of nomination and inquire into the eligibility of candidates. With that they have nothing to do. This being true, it is apparent that the writ demanded must be denied, for the reason that this court cannot, by writ of prohibition, prohibit the county auditor from doing that which it is his clerical duty, under the election laws, to do."

That language is equally applicable to this case wherein it is sought, by writ of prohibition, to prevent the Secretary of State from performing a clerical act exacted of him by law.

A limitation of the writ of prohibition, in cases of this kind, is indicated by the language of our statute defining it, as follows:

13-401. "The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person."

In saying "the writ of prohibition is the counterpart of the writ of mandate" it is not to be understood the legislature meant prohibition to prevent all acts, when wrongfully threatened, which mandate might compel, when wrongfully refused, but only such as involve the element of jurisdiction. The purposes for which the writ of mandate may be used are pointed out in section 13-302, as follows:

"It may be issued . . . . 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."

The element of jurisdiction, or lack of it, is not present in the statute providing the uses to which mandamus may be put, while it is one of the indispensable elements in case of prohibition.

The use of the word "jurisdiction" in section 13-401 is not to be disregarded. It is said in Black's Law Dictionary, third edition, page 1442:

"Prohibition may, where the action sought to be prohibited is judicial in its nature, be exercised against public officers.State ex rel. United States Fidelity Guaranty Co. v. Harty,276 Mo. 583, 208 S.W. 835, 838."

It is doubtful if a definition of prohibition can be found anywhere broad enough to include any act of the secretary of state sought to be prohibited in this proceeding. In 22 Rawle C. L., page 15, section 13, it is said:

"Except in those cases where some valid constitutional or statutory enactment declares directly to the contrary, it must appear that the act in question is not ministerial in character If it is ministerial, the writ cannot be sustained, though the person or tribunal against which it is sought is a judge or court authorized in proper cases to discharge judicial functions."

In 50 C. J. 654, section 3, it is said:

"Prohibition, at common law, was a remedy against encroachment of jurisdiction. Its office was to restrain subordinate courts and inferior judicial tribunals from extending their jurisdiction. In adopting the remedy the courts have almost universally preserved its original common-law nature, object, and function. Thus, while the office of the remedy is in some jurisdictions enlarged or restricted by constitutional or statutory provisions, as adopted in most jurisdictions, its proper function is to prevent courts, or other tribunals, officers, or persons, from usurping or exercising a jurisdiction with which they are not vested by law, and to confine them to the exercise of those powers legally conferred. Where a constitution or statute confers authority to issue the writ of prohibition, without using other terms enlarging or restricting the office of the writ, the writ of prohibition as known to the common law without extension or enlargement of its scope is meant.

"It has been held, however, that a constitutional provision authorizing the grant of prohibition is to be construed with reference to the scope of the writ as recognized in the particular jurisdiction at the time of its adoption."

In Williams v. Lewis, 6 Idaho 184, 54 P. 619, our court granted a writ prohibiting the secretary of state from certifying to the county auditors nominations to state offices of candidates attempted to be nominated by a branch, or faction, of the people's party. The question here under consideration was presented to the court in that case. It is said in the opinion:

"The demurrer to the complaint for a writ of prohibition is urged upon the ground that such writ is sought to prevent or prohibit the act of an official purely ministerial in its character; and this contention is supported by several decisions of the supreme court of California, from which state our statute upon the subject was taken."

Our court refused to follow the California decisions and issued a peremptory writ of prohibition. That decision was overruled in Stein v. Morrison, 9 Idaho 426, 453, 75 P. 246, 255, wherein the court said:

"In this connection the question has been directly and specifically raised as to whether or not under the constitution and laws of this state the writ of prohibition will issue to enjoin the commission of ministerial and administratve acts. In support of the position that the writ will issue in such case, we are cited to Williams v. Lewis, 6 Idaho 184, 54 P. 619, where this court said: 'The writ of prohibition, under the statutes of Idaho, will lie to restrain the action of a ministerial officer when it appears that such action is illegal and beyond his jurisdiction.' Counsel for defendant contend that this case is contrary to the great weight of authority announced in nearly every other state in the Union, and ask us to overrule it in so far as it announces the doctrine above quoted. After careful examination of that case and the pleadings which were before the court, it seems to us that the doctrine announced to the effect that the writ would lie to restrain the action of ministerial officers was unnecessary to a determination of the issues involved and to that extent isdictum. The question there involved was the filing and certifying by the Secretary of State two separate tickets presented to him by two distinct political organizations, each representing itself to be the 'People's Party.' Under the law the secretary could not file and certify but one ticket in the name of any one political party. He was therefore in that case called upon to exercise quasi judicial functions and determine which of the two tickets was the ticket nominated by the real, genuine, accepted 'People's Party.' When we call to mind the distinguished and able judges who constituted the court whenWilliams v. Lewis was decided, we feel some reticence in a reexamination of the question there discussed, but the conclusion announced as to the office of the writ as contemplated under the constitution is in such apparent conflict with the great weight of authority that we have deemed ourselves justified in making an original investigation of that question. Section 9, article 5 of the constitution provides that: 'The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition and habeascorpus.' This provision seems to have been taken literally from section 4 of article 6 of the constitution of California The same provision was contained in the constitution of California as adopted in 1849 and again as adopted in 1862, and was finally readopted in the constitution of 1879. The legislature of California in defining the writ of prohibition, at section 1102, Code of Civil Procedure, used the identical language which was copied by our legislature and adopted as section 4994 of our Revised Statutes. The supreme court of California, in considering the extent and scope of the writ as used in the constitution and statutes of that state, held uniformly that the common-law writ was meant.

"In Maurer v. Mitchell, 53 Cal. 289, the court considered the statutory definition of the writ and the language used in that connection, and construed it in such a clear and convincing way, that we quote at length from that opinion. It says:

" 'Giving the words of the last clause of the section their natural construction in view of the law when the section was adopted, there would be no difficulty in holding that the "corporation, board or person" mentioned was a corporation, board, or person clothed with limited judicial powers which had been exceeded. The word "jurisdiction," when used in connection with "prohibition," would be at once understood as being employed in the sense of the legal power or authority "to hear and determine causes." It is said, however, that the first clause of the section can only be given effect by extending prohibition so as to arrest every unauthorized act of an officer or person clothed with authority, as mandamus may be employed to compel the performance of any act enjoined by law, with the condition in each case that the party has no other plain, speedy and adequate remedy. But that prohibition as a remedy is not in every respect the exact converse of mandamus is made apparent by the words of the second clause of the same section, which declare that prohibition arrests proceedings which are without or in excess of the jurisdiction. In prohibition it must be shown to the court that the inferior court or person has exceeded the powers conferred by law, and the court intervenes to prevent further proceedings without or in excess of such power. Mandamus may be resorted to whenever an officer or person refuses to perform a duty enjoined by law, although the act may have been an isolated one, disconnected with any proceedings leading up to that which the recalcitrant official or individual refused to perform.

" 'In what sense, then, is the word "counterpart" employed in the first clause of the section? As it cannot be given the meaning of the exact reverse or opposite without doing away with the limitation contained in the second clause, whereby prohibition is confined to the cases in which the court corporation, officer, or person has already exceeded the powers conferred by law, it must have been used in the more general sense, that prohibition is the opposite, in that it arrestswhile mandamus commands action.

" 'The word "counterpart" as employed in the statute is designed to illustrate the operation of the writ or prohibition when issued in a proper case, but it is not intended to enlarge or add to the class of cases in which it may be resorted to.'

"In defining the writ at section 4994 Revised Statutes, (I. C. A., sec. 13-401), it is said that 'it arrests theproceedings' when they are 'without or in excess of thejurisdiction' of the tribunal, corporation, board or person about to exercise the jurisdiction. Jurisdiction, as used in the law, is the right to hear and determine a matter and carries with it the idea of exercising judicial or quasi judicial functions. (See 'Jurisdiction,' Black's Law Dictionary; Bouvier's Law Dictionary, and authorities there cited.) The word 'proceedings' as here used cannot reasonably be said to apply or have reference to the doing of a purely ministerial act.

"In 1881, and after the decisions reported in the 52d and 53d Cal. had been announced the legislature of California amended section 1102 of their Code of Civil Procedure by adding thereto the words 'Whether exercising functions judicial or ministerial.' In Camron v. Kenfield, 57 Cal. 550, the court held that the amendment was unconstitutional, for the reason that the word 'prohibition' had been used in the constitution in the common-law sense of that term, and that it was beyond the power of the legislature to extend the scope of the writ by legislative definition. This last case seems to have become the settled doctrine in that state and has been repeatedly cited with approval, not only by the courts of that state, but by the highest courts of other states, and it is clear to us that the reasoning of the case and the principle there announced was misapprehended and misapplied in Williams v. Lewis. In the Williams case the court seems to have taken the view that under sections 4994 and 4995, Revised Statutes (I. C. A., secs. 13-401 and 13-402), the territorial legislature had extended the scope and province of the writ, and in support of that position cites section 1866 of the Revised Statutes of the United States, which provided that the original and appellate jurisdiction of the territorial courts should be limited by law. When the act of Congress provided that the jurisdiction of the territorial courts should be limited by law, it was certainly not the intention to authorize the extension of the use of the writ of prohibition within the territorial jurisdiction beyond in excess of the scope and power of the writ as uniformly recognized by the federal courts.

"At common law the writ of prohibition was issued on the suggestion that the cause originally, or some collateral matter arising therein, did not belong to the inferior jurisdiction, but to the cognizance of some other court. 'It was an original remedial writ provided as a remedy for encroachment of jurisdiction; its office was to restrain subordinate courts and inferior judicial tribunals from extending their jurisdiction.' (3 Shars. Blackst. Com. 112; Quimbo Appo v. People, 20 N.Y. 540;Thomas v. Mead, 36 Mo. 232; Spring Valley W. W. v. SanFrancisco, 52 Cal. 117; Maurer v. Mitchell, 53 Cal. 291.) Now, the question arises: With the federal courts using the writ in its common-law sense and the supreme court of California holding that the word 'prohibition' as used in the constitution and statutes of California had been used in the common-law sense, in what sense shall we conclude that the framers of the Idaho constitution used the word 'prohibition' when incorporating the same into the organic law of this state? When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation and with the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken.

"We therefore arrive at the contrary conclusion from that reached in Williams v. Lewis, and are of the opinion that the writ of prohibition as authorized by the constitution is the common-law writ, and that the same will not issue to restrain purely ministerial acts. The case of Williams v. Lewis is therefore expressly overruled in so far as it holds that the writ of prohibition will lie to restrain ministerial acts." (See, also, State v. Railroad Commrs., 79 Fla. 526, 84 So. 444;State v. Blegen, 26 S.D. 106, 128 N.W. 488; State v.Vaughn, 33 Okl. 384, 125 P. 899.)

The following statement is found in State v. Leonardson,51 Idaho 646, 658, 9 P.2d 1028, 1033:

"This proceeding invokes the extraordinary legal remedy of prohibition, and is directed against the assessor and members of the board of county commissioners of Ada County. We are asked to prohibit these defendant officials from assessing and taxing the shares of this relator, which we have held to be properly assessable and taxable under the law. Under the express provisions of our statutes (C. S., secs. 7267, 7268) (I. C. A., secs. 13-401, 13-402) as repeatedly construed by this court (citing Stein v. Morrison and other cases) in such a proceeding as this there are only two matters to be considered by us: (1) Did the defendants act without or in excess of their juridiction? (2) Did plaintiff have a plain, speedy and adequate remedy in course of law? Our primary inquiry is directed to the jurisdiction of the defendant officers to act. It cannot be said that they were acting without or in excess of their jurisdiction in assessing relator's shares. Rather, the complaint is that they were about to perform duties enjoined upon them by statute, in the doing of which they are vested with sole and exclusive jurisdiction, and it is obvious that we cannotprohibit officers from doing their duty. (50 C. J. 681, sec. 53; State v. Denney, 150 Wash. 690, 274 P. 791.)"

It has been urged that Balderston v. Brady, 17 Idaho 567,107 P. 493, Adams v. Lansdon, 18 Idaho 483, 110 P. 280 andPerrault v. Robinson, 29 Idaho 267, 158 P. 1074, are in conflict with Stein v. Morrison, wherein it overruled Williamsv. Lewis.

In Balderston v. Brady it was sought, by writ of prohibition, to prevent the state board of land commissioners from relinquishing the right and title of the state to certain land selected by it from the public domain of the United States, to settlers who claimed a prior right to it, which claim had been rejected by the Secretary of the Interior. As will be seen from an examination of the contentions of counsel in that case, set forth in 17 Idaho 568-570, 107 P. 493, the case was commenced on the theory that "the threatened action of the state land board is of quasi-judicial nature." Defendants did not dispute this, but urged that their demurrer to the complaint should be sustained because "a writ of prohibition will not lie against the governor or an executive body of which the governor is a member." Amici curiae advanced the theory that "the writ of prohibition will lie to restrain encroachment of jurisdiction, but not to control the exercise of a discretion legally invested." Also that "this court has no legal jurisdiction to control, either by prohibition, mandamus or injunction, the discretionary powers of the state land board." The court held while, "as stated in Stein v. Morrison, supra, it is held by many authorities that the writ of prohibition will not lie against the governor of the state to restrain him from performing an executive act" (17 Idaho 576, 107 P. 493, 495), that when he is acting and voting as a member of the state board of land commissioners he is not acting as chief executive and the writ, if issued, would run against the board and not against the governor.

In Adams v. Lansdon the sufficiency of the complaint was challenged by general demurrer, and the applicability of prohibition was not called in question, decided nor in any manner referred to.

Perrault v. Robinson was intended to, and did, prevent the mayor and members of the city council of Boise from holding an illegal, unauthorized, invalid election, which would have been to the detriment and injury of appellant and other taxpayers, which threatened act on their part was not clerical nor ministerial, but involved the making of a quasi-judicial decision.

Neither of these cases conflicts with Stein v. Morrison.

In State v. Johnston, 234 Mo. 338, 137 S.W. 595, a writ of prohibition was sought against the secretary of state and others to prevent him from revoking the license of a foreign corporation to transact business in Missouri pursuant to a statute purporting to require him to do so. The writ was sought on the theory that the act of the legislature directing the secretary of state to revoke the license, under the circumstances stated in the case, was unconstitutional. While the proceeding was pending the supreme court of the United States, in another case, held the act of the legislature to be unconstitutional, which decision the Supreme Court of Missouri concurred in, and said:

"The act having been declared unconstitutional, it remains now for this court to decide whether, at the time of filing the petition herein, the relator, under the showing made in its petition, was entitled to a writ of prohibition. Unquestionably, if the relator's rights were threatened under the pretext of an unconstitutional act, it was entitled to judicial protection in some form; but the question is, was it entitled to a writ of prohibition?"

With respect to the claim of right to the writ of prohibition against the secretary of state, and denying it, the court said:

"Can the writ of prohibition go against the Secretary of State? He is an executive officer; and if he should refuse to do what he ought to do a mandamus may reach him, or, if he should attempt to do what he ought not do, he is amenable to injunction, but he is amenable to a writ of prohibition only, if at all, when he assumes to exercise a judicial function.

"A ministerial officer has no right to pronounce an act of the General Assembly unconstitutional and so disobey it. The power to declare a statute enacted by the law making department of the state unconstitutional is entrusted only to the judicial department of the state government; is not only judicial in character, but it is of the highest judicial character."

Although, in the Missouri case, the law pursuant to which the secretary of state threatened to act was held to be unconstitutional, the court decided a writ of prohibition would not issue to prevent him from acting. In this case no contention is made that the law which commands the secretary of state to act is unconstitutional. It appears to be conceded that the law makes it his duty to certify to the county auditors the names of nominees which the state board of canvassers has certified to him.

This brings us again face to face with the question as to whether this court can be called upon to prohibit an officer, acting in a clerical, ministerial capacity, from doing that which the law commands him to do. The answer must be in the negative. Other questions sought to be presented are not properly before the court. The writ should be denied and it is so ordered.

Honorable Wm. A. Babcock, District Judge, who sat with the court in this case, authorizes me to say he concurs in the views herein expressed.