Territory ex rel. Tanner v. Potts , 3 Mont. 364 ( 1879 )

XNowles, J.

This is an application for a writ of mandate, at the instance of the above-named appellant. Tanner, commanding the above-named respondent, Potts, as governor of Montana Territory, to audit and allow a' claim of said Tanner for expenses incurred and for compensation for services, while acting as messenger under the appointment of the said Potts, and required by the warrant issued by him as governor of Montana Territory, to proceed to the State of Ohio and there receive and convey to Montana one Gus. Callahan, who was a fugitive from justice therefrom,- and who had been duly indicted for an offense against the laws thereof, in the county of Gallatin in said Territory.

I think it my duty to remark that the proceedings in this case have been treated throughout as though it was a civil action, legal in its nature. The applicant for the writ is treated and named as the plaintiff in what is termed a complaint and the said Potts is called the defendant, and this so-called complaint is demurred to by the so-called defendant. The practice in this respect was so fully considered and determined in the case of (Chumasero v. Potts, 2 Mon. 242, that I think it surprising that the courts of the Territory should be confronted with such proceedings. The writ of mandate, under our statute, issues upon an application, which is nothing more than a motion, and this supported by an affidavit of the applicant or some one in his behalf. When the writ issues, it is in the name of the Territory, on the relation of the beneficiary, and if the writ is in the alternative, the person who is commanded by the writ must show cause why the writ should not be made peremptory, by an answer thereto. If the affidavit which should not be entitled is insufficient, this may be attacked on motion to quash the writ. In mandamus proceedings there can be no such case as Tanner v. Potts. The proceedings should be entitled: “ The Territory of Montana at the relation of Tanner v. Potts.” This court is called upon to treat this complaint as an affidavit to support an application for a writ of mandate, and the demurrer thereto as a motion to quash the writ. It is to be hoped that the profession will more carefully observe the well-established rules of practice in this proceeding hereafter.

The first point I shall consider is : Were the proceedings herein barred by the Statute of Limitations? The proceeding to procure a writ of mandate, according to the decision of this court in the case of Chumasero v. Potts, cited above, is not what is denominated a civil action under our Code. The Statute of Limitations then does not in express terms apply to the same. That applies to civil actions. The issuance of the writ of mandate, however, rests in the legal discretion of the court, to whom application is made therefor. In exercising this discretion the court may consider the bearing of the Statute of Limitations upon analogous civil actions and determine therefrom whether the application has been made in due form. In equity cases, to which the Statute of Limitations in some States do not apply, this rule is observed, and it seems to me to be a good one in proceedings in mandamus. In the case of The People v. Supervisors of Westchester, 12 Barb. (N. T. S. C. R.) 446, it was held that that court would entertain an application for a writ of mandamus, up to the time the Statute of Limitations would run in an analogous case in an action at law, leaving the impression that they would not consider such an application after that time. Certain it is, the authorities sustain this view. The applicant should not be guilty of an unreasonable delay in making his application. 1 Bed-field on the law of Railways. 658; looses on Man. 190 ; The People on the relation of Beach v. Seneca Com. Pleas, 2 Wend. 265; The People on the relation of Phelps v. Delaware Com. Pleas, id. 257.

It appears from the affidavit, or complaint as it is called, that the applicant made out his account and presented it to Potts for him to audit in 1873. This action was commenced in October, 1877. Under the 47th section of the laws of Montana, all actions not specially provided for in said statute upon limitations should be commenced within three years. This would include all actions against officers for the neglect or omission to perform their official duties, save sheriff, coroner and constable. Actions against the latter for such causes, section 43 of said laws provides, must be commenced within two years. The applicant in this case has allowed his right to proceed for the writ of mandamus to rest for about three years at least, perhaps longer, as the complaint is not definite upon this point. Taking the rule in legal actions as a guide, I am satisfied the applicant herein did not proceed in time, and the court below in exercising its judicial discretion properly refused the writ. When courts are called upon to exercise a judicial discretion in allowing claims, they never favor those which are stale.

As to the other points presented in this proceeding, I am-of the opinion that a person who is appointed and acts as a messenger to proceed under the warrant of the governor to arrest and return to this Territory a fugitive from justice, although he'may not succeed in arresting or returning such fugitive to his proper custodian, is entitled to a reasonable compensation therefor, and that the term expenses, as used in section 448 of our Criminal Practice Act, should not be confined to what were the actual and necessary expenses of such messenger, but embrace what would be a just compensation for such services. The statute, however, leaves it to the governor to determine what is a just compensation for the performance of such services. From the aver- ' ments in tho affidavit of the applicant, it would seem that he entertained the notion that the province of the governor in such cases is to ascertain the amount to his satisfaction, of the charges made and expenses incurred by him. This is not the province of the governor under this statute in such cases. He is to ascertain and be satisfied that the charges made by such messenger are just and reasonable, and when so satisfied, he should audit the same. I am further of the opinion that the governor in such matters acts as an auditing officer and not in an executive capacity, as the executive of the Territory, and that an application for a writ of mandate to compel him to proceed and audit a claim for such services and determine to his satisfaction how much would be just and reasonable, if made in due time, should be entertained. This court, however, could not, upon any statement of facts under the said section 44'8, dictate to the governor what would be a just and reasonable compensation for such services. The determination of this rests in his discretion.

For the reason that the application was not made within a reasonable time, it is ordered that the judgment of the court below be affirmed with costs.

Judgment affirmed.