Hamlin v. Higgins , 102 Me. 510 ( 1907 )

Emery, C. J.

This case comes before the Law Court upon the respondent’s exceptions to various rulings of a Justice of this court during proceedings resulting in an order for the issue of a peremptory writ of mandamus.

The writ of mandamus was originally a prerogative writ which the Court of King’s Bench was wont to issue to any part of the realm for the prevention of disorder from failure of justice or defect of police. Spelling on Ex. Bern. 1368-1685. Application was made to the court containing allegations of facts requiring the issuance of the writ. If these allegations, assuming them to be true, satisfied the court of the need of the writ, there was issued, with or without notice, a precept called the alternative writ of mandamus. In this precept were recited the allegations upon which it was issued and the respondent was required to do certain acts therein described or make return why he should not do them. If the respondent did the acts, the purpose of the procedure was answered. If he did not perform the acts, he might move to quash the alternative writ for want of sufficient allegations or other imperfection, or he might make return upon it of matters of fact relied upon to excuse him his non performance. This return was to be taken as true, unless the applicant for the writ could establish its falsity in an action for false return. The court therefore had only questions of law to determine, the disputed questions of fact, if any, being left to be determined in another action. The recitals in the alternative writ constituted the applicant’s case. A motion to quash the writ challenged their sufficiency. The return on the writ constituted the respondent’s case, the sufficiency of which could be challenged by demurrer, or the case delayed until the verdict of a jury could be had establishing their truth or falsity. The decision of the court upon these questions determined whether the final or peremptory writ should issue, the execution of which the respondent could not escape. -

In this State the procedure is regulated by statute, II. S., ch. 104, secs. 17 and 18. It is there provided that the application for a writ of mandamus may be by a petition therefor presented to a Justice of the Supreme Judicial Court in any county in term time or vacation, who may upon notice to all parties hear and determine the same. He may, however, upon exceptions or otherwise reserve questions of law arising thereon for the determination of the Law Court, but notwithstanding any exceptions to any of his rulings, findings or decrees, the case is to be proceeded with until a decision be reached and the peremptory writ be ordered if such be the decision. If on the hearing, such writ (the peremptory writ) is ordered it may be issued from the clerk’s office in any county and be made returnable as the court directs.

If the alternative writ of mandamus is granted on the petition, the respondent is to make his return upon that writ. The petitioner may demur to or traverse the return. If he maintains on his part the issue thus formed he obtains an order for the peremptory writ of mandamus, otherwise he fails and pays costs. After granting the peremptory writ, if such be the decision of the issue, the Justice before whom the proceedings are pending shall certify to the Chief Justice all exceptions to his rulings to be argued within fifteen days, &c. If the judgment of the Law Court on these exceptions is in favor of the petitioner then the peremptory writ is to issue without further hearing.

It is quite evident from the provisions of the statute cited that the purpose was to make the remedy by writ of mandamus readily and quickly available, with prompt, and even summary procedure. This was made necessary by the short tenure of those officials against whom the writ is most often invoked. Each individual Justice of the court is invested with the full judicial power to receive petitions and grant or deny the writ. He may receive and act upon the petition in any county in which he may then personally be and whether he is holding a term of court there or not.

He is to act personally as an individual Justice and not as the presiding Justice of a court in term time. He is not limited to terms or places. The time and place of hearing upon the petition are not fixed by the statute nor limited to any county or term of court. These are to be fixed by the Justice receiving the petition, and for hearing in any county. Nor does the statute fix the time or place when and where the respondent shall make his return to the alternative writ, nor when or where shall be the hearing on the sufficiency or truth of the return if challenged. These also are to be fixed by the same Justice and in any county. He is to try the issue, if any, whether of law or fact at the time and place named by him in any county, and decide it and order or refuse the peremptory writ accordingly.

There is no provision for the issuance of any precept out of the clerk’s office in any county except the final or peremptory writ, and even that writ may be issued out of and returned to such clerk’s office as the court directs. The whole proceeding is in the breast of the single Justice without being matter of regular court record until his final decision. Questions of law may be reserved on exceptions or otherwise for consideration by the Law Court, but no appeal upon questions of fact is provided for, nor is there any provision for sending the case back to the Justice for re-hearing. It must be sent to the Law Court, if at all, in such shape that the decision of the Law Court will be the final disposition of the case.

In the case at bar, the petition was for mandamus to compel the Aldermen of Rockland in Knox County to go into joint convention with the Common Council for the election of subordinate City officers as required by the City Charter. It was presented to a Justice of the court while he was in Penobscot County, and during a term of court he was holding there. After notice to all the parties to appear at Bangor, Penobscot County, April 20th, four days afterward, he there heard the matter of the petition and issued the alternative writ requiring the respondents to go into such convention, or to make l’eturn why not, before him at Augusta in Kennebec County May 7, 1907. On or after the return day of the alternative writ the Justice fixed May 14th and Augusta as the time and place for the hearing on the return. At that hearing he ordered the case to be entered on the docket of the court in Kennebec County and the peremptory writ to issue from the clerk’s office there.

Pour of the respondents reserved numerous exceptions which are now to be considered. They complain :—

1. That they did not have sufficient notice (forty-eight hours) of the petition, nor sufficient time in which to show that its allegations were untrue and that the matters complained,of in the petition occurred in Rockland, Knox County before and during the presence of a Justice holding court in that county.

As to the length of the notice, that was entirely within the discretion of the Justice which cannot be reviewed on exceptions unless if has been plainly abused. In this case there was no need of time to prove any facts as the only issue then was the sufficiency in law of the allegations in the petition. Their truth or falsity would not be in issue until a return upon the alternative writ. Further, it was immaterial whether a Justice was in Knox County before or during the acts named in the petition. The petitioners were allowed by the statute to present their petition to any Justice and in any county.

2. That the other three of the seven Aldermen respondents acknowledged service of the notice without it being formally served upon them, though the order was for notice to be served upon all the seven members. None of the three who acknowledged notice makes any complaint, and we cannot see how either of the other four is prejudiced thereby.

3. That the petition was not then filed or entered on the docket of the court in the clerk’s office in any county. We find no law requiring that to be done at that stage of the case. So far, the case was in the hands of the Justice individually wherever he might be.

4.. That they were not then allowed sufficient time to show by the records certain rules of the City Council affecting meetings in joint conventions. The answer to their first exception above named applies equally well to this. The time had not arrived for the consideration of these rules.

5. At the hearing upon the petition in Penobscot County, the Justice adjudged that the allegations were sufficient and issued the alternative writ of mandamus to be returned before him at Augusta in Kennebec County on the 7th of May next thereafter at four o’clock P. M. This writ was tested and signed by the Justice, but did not bear the seal of the court, nor the signature of any clerk. The four objecting, respondents moved to quash the writ for these •omissions.

The alternative writ in mandamus proceedings is neither an original writ nor a final writ of execution. It is practically a rule to show cause issued by a Justice in vacation. Iff proceeds by way of interlocution from the Justice who has received the petition and who alone has jurisdiction of the proceeding. We find no statute nor apposite decision holding that it must bear the seal of the court, or be signed by the clerk. The signature of the Justice himself should be, and in our opinion is, sufficient authentication. People v. Judges, 3 How Pr. (N. Y.) 164.

6. On the return day and hour of the alternative writ the four respondents and their counsel appeared at the Court House in Augusta, ready to make a return to the writ, but the Justice was absent from town, he having understood that though the return was to be made May 7, the hearing thereon, if any was desired, was to be arranged for later. On that day, or the next, he notified counsel he would hear them at the Court House in Augusta at 9 o’clock A. M. May 14th. At that time counsel on both sides appeared, and the counsel for the four objecting respondents objected to any further proceedings and moved the alternative writ be quashed on the ground that the Justice had no jurisdiction of the subject matter nor of the proceeding, at that time and place. The Justice overruled these objections and, against the objection of the respondents, directed the clerk of the court for Kennebec County to enter on its docket their “ Petition and Alternative Writ filed as of May 7, 1907.” The respondents then again moved to quash the writ but the Justice refused and ordered a return to be made which the respondents did under protest.

For reasons already stated we think it clear the Justice had not lost jurisdiction by not being personally present at the time and place named for making return to the writ. There was no need for the respondents to then and there appear in person or by counsel, any more than for an officer to appear in person when he makes return of a precept. 31 Maine, 591-2. The time and place were named for making the return, not for the hearing. There would be no issues disclosed for hearing until after the return and the petitioners demurrer or answer to it, and non constat that there would be any issue at all. Indeed, the respondents might perform the acts required and so return. True, trial justices to retain jurisdiction must be present in person at the time and place named for the defendant to appear, but that is because the statute, R. S., ch. 85, sec. 2, explicitly so provides, and a trial justice is an inferior magistrate of limited statutory jurisdiction. The jurisdiction of the Justices of the Supreme Judicial Court is not within that statute and is not thus limited.

On the return day or soon after, the Justice fixed a time and place for hearing on the issues raised by the return and gave seasonable notice to the parties. The respondents make no complaint of want of opportunity for hearing. Their objection to the jurisdiction of the Justice must be overruled.

7. The objecting respondents then made to the writ, though under protest, a return setting forth the matters of fact and law relied upon by them as cause for not performing the acts named in the writ to be performed. The petitioners were then allowed against the respondents objection to file a reply to the return. Assuming, as above held, that the Justice still had jurisdiction of the case there could be no legal objection to allowing the petitioners to file an answer, or reply, as authorized by the statute, B. S., ch. 104, sec. 18.

8. In the alternative writ, the respondents among other matters were required to go into joint convention to elect among other subordinate officers a Boad Commissioner, and three Assistant Engineers of the Fire Department. In their return they alleged authority in the City Council to elect at its discretion a Boad Commission instead of a single Boad Commissioner, and not exceeding five Assistant Engineers of the Fire Department. In their reply to the return the petitioners admitted the authority of the City Council to be as stated and asked that the proceedings be amended accordingly, and that the peremptory writ of mandamus allow the exercise of that discretion. This was done and the respondents excepted.

The allegations in the alternative writ are in the nature of pleadings only. They set forth the petitioners case upon which the writ is based. They are clearly amendable in the discretion of the court or Justice, at least so far as the amendment does not introduce any new ground for the writ, nor authorize a more stringent command in the peremptory writ. 31 Maine, 591-2. Brown v. Rahway, 51 N. J. L. 279. By the Statute of Anne, c. 2, sec. 7, the statute of jeofails was extended to include all writs of mandamus.” The amendment allowed in this case stated no new ground for the writ, nor did it cause the peremptory writ to press harder on the respondents. On the contrary, it allowed them more discretion as to what they should do.

9. It was also alleged in the alternative writ, that one purpose of the objecting respondents in refusing to go into the joint convention was to force the members of the City Council to agree in advance to let the minority in the joint convention name one or more of the important officers. At the hearing, the respondents, denying this allegation, asked for further time to enable them to disprove it, but the petitioners thereupon waiving all such allegations and making no claim of proofs thereof, the request was denied and a decree signed and filed in the clerk’s office in Kennebec County for the peremptory writ, to issue.

The allegation complained of was immaterial and even impertinent and undoubtedly would have been stricken out upon motion therefor, but there was no need to disprove it, especially after the petitioners waived it. The motives of the respondents good or bad did not vary their legal duty.

The foregoing disposes of all the exceptions reserved at the various hearings. At the argument the counsel for the respondents urged still other objections to the proceedings. So far as these objections are to mere irregularities they have not been brought before us by any exception and hence cannot be considered. It is claimed however that some of them go to the jurisdiction of the Justice to issue the writ alternative or peremptory, and such of these as have not already been disposed of will be considered, since a court should always consider a question of its jurisdiction, however raised.

1. The petition was addressed “To the Hon. Justice of the Supreme Judicial Court now being holden at Bangor in and for the County of Penobscot.” It is claimed that, being thus addressed, the petition was cognizable only by the court in that county and that the Justice had no jurisdiction thereof at any other place or time than on the bench in that county and in term time. We do not think the argument sound. By express statute the J ustice, not the court, is given jurisdiction although the petition may be presented to him at any time. The fact that he is holding a term of court at the time does not oust him of jurisdiction or limit his power as an individual Justice. His name was not stated in the petition but he was sufficiently identified by being described as the Justice holding that term of court. The petition was really presented to him and not to the court then in session.

2. The order of notice on the petition was headed “ Supreme Judicial Court, Penobscot County, April Term, 1907,” and in it the respondents were notified to appear “at the Supreme Judicial Court now in session at Bangor in and for said County of Penobscot ” &c. It was signed however by the Justice, not as “ presiding Justice,” but as “Justice Sup. Jud. Court.” It is evident that the error in the form of the notice, if any, is merely an error in procedure not going to the jurisdiction. At the time and place named in the notice the respondents appeared before, and were heard by, the Justice himself who, as above stated, had jurisdiction to hear the case. If there was error in the wording of the notice it was thus fully cured.

3. In the alternative writ the respondents were commanded to “ make known in our Supreme Judicial Court before our undersigned Justice thereof at Augusta” &e. This also, if an error, is clearly error in form only. The proceedings were to be, and were, before the Justice signing the alternative writ.

4. The petition was by the Attorney General at the relation of the Mayor and three persons members and a committee of the Common Council of Nockland. These four relators conducted the case for the petitioners. It is objected that they had no such interest in the case as entitled them to do so.' The name and authority of the Attorney General are sufficient to give the Justice jurisdiction, the subject matter being of a public nature. It is immaterial who thereafter prosecutes the case.

5. Counsel for the respondents urge that they were subjected to unnecessary trouble and expense in defending against the petition and they also distrust the motives of the relators. These are not questions of law however and are not cognizable by the Law Court.

The case seems to have been carefully considered by the Justice who received the petition and who, as we- hold above, undoubtedly had jurisdiction of it. We have carefully read and thought over every argument made in the respondents very able and forceful brief, but we find nothing fatal to the jurisdiction and procedure of that Justice in the case, and nothing to prevent the issuance of the peremptory writ of mandamus from this court in Kennebec County as ordered by him'.

Exceptions overruled.

Peremptory writ of mandamus to issue as ordered.