State ex rel. Stranahan v. Board of State Canvassers , 32 Mont. 13 ( 1905 )

MR. JUSTICE MILBURN

delivered tbe opinion of tbe court.

Tbis matter is before us upon tbe petition of tbe relator for a writ of mandate to compel tbe state board of canvassers to reconvene for tbe purpose of computing and certifying to tbe governor a number of votes alleged to bave been cast for bim at tbe last general election for tbe office of district judge of tbe twelfth judicial district. In tbe affidavit it is stated that A. H. Barret, then tbe state treasurer, and James Donovan, then tbe attorney general, constituting a majority of tbe state board of canvassers — tbe other member of tbe board having been absent at tbe time tbe board canvassed tbe returns of tbe votes cast at tbe general election for tbe different state and judicial offices — refused to count and certify tbe said votes. Tbe relator prays that tbis court order tbe canvassing board to reconvene, and to certify tbe votes so-cast for bim to the governor.

Tbe petition in tbis case was filed on tbe 8th day of last December. Tbe alternative writ issued was returnable on tbe 10th. A demurrer to tbe petition was argued and submitted on tbe last-named date. Tbe demurrer and a motion to dismiss, after due consideration, were overruled on tbe 23 d, at which time tbe respondent was given five days to answer, tbe answer being filed on tbe 28th. On tbe 3d day of January, 1905, tbe case was set for bearing on tbe 6th of that month, and was argued and submitted on tbe 7th. Upon submission tbe respondent was given five days, and tbe relator three days thereafter, in which to file briefs. Tbe relator’s brief was filed on the 14th, and the matter was immediately taken np for consideration and determination. The case was heard as soon as possible, considering the other matters pending before the court, and there was not any suggestion on the part of the relator or anyone that the utmost expedition was not used in bringing the matter to issue and hearing. At the time when the case was set for hearing, January 3d, neither the said Barret nor the said Donovan was an officer of this state, the successor of each having been elected and inducted into office after qualification, of all of which we take judicial notice.

The suit must abate and be dismissed. The authorities are somewhat divided as to the question whether or not mandamus proceedings abate upon the resignation or termination of the term of the ministerial officer, but we believe that reason and the weight of authority are in support of the position we take. Whether or not the suit may be revived, and the alternative writ directed to the new incumbent or incumbents, it is not necessary for us to decide; but, certainly, in the absence of any notice to a person holding a public office, he may not be required by this court to do something that somebody else has failed to do, or be coerced into action which has never been demanded of him.

Mr. High, in his work on Extraordinary Legal Remedies, second edition, section 441, says that where the officer goes out of office before the determination of the mandamus proceeding, and before judgment therein, and the action is not revived against his successor, it is improper for the court to give judgment against him as if he were still in office, and to award a peremptory mandamus against both him and his successor in office, since he may properly object that he no longer possesses the power to execute the demands of the writ.

In the case of Cox, the Secretary of the Interior, v. United States ex rel. McGarrahan, 9 Wall. 298, 19 L. Ed. 579, being in review of mandamus proceedings from the supreme court of the District of Columbia, the court said: “Service was made upon O. H. Browning, Secretary of the Interior; but the fact is conceded or not denied that he had resigned and gone ont of office four months before the decision of the court was announced. When he resigned, of course, the suit abated; but the court gave judgment against him as if he were still in office, and decreed that the writ of mandamus should be directed to him and to his successor in the office. Complaint may well be made by that party that he no longer possesses the power to execute the commands of the writ, and the present secretary may well complain that he is adjudged to be in default, though he never refused to allow the relator to purchase the land, and that the judgment was rendered against him without notice and without any opportunity to be heard. Notice to the defendant, actual or constructive, is essential to the jurisdiction of all courts; and the better opinion is that a judgment rendered without notice may be shown to be void when brought collaterally before the court as evidence.”

In the Boutwell Case, 17 Wall. 604, 21 L. Ed. 721, Mr.' Justice Strong said: “The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another. It may * * * have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But no matter out of what facts or relations the duty has grown, what the law regards, and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance, a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence it is an imperative rule that, previous to making application for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the relator or prosecutor upon the defendant, and it must appear that he refused to comply with such demand. * * * Thus it is the personal default of the defendant that warrants impetration of the writ, and, if a peremptory mandamus be awarded, the costs must fall upon the defendant.” Justice Strong further says that “it necessarily follows from this that, on the death or retirement from, office of the original defendant, the writ must abate, in the absence of any statutory provision to the contrary,” and that the court cannot compel the defendant to perform it after his power to perform has ceased. He adds that, if a successor in office may be substituted, he might be .mulcted in costs for the fault of his predecessor, without any delinquency of his own. “Besides, were a demand made upon him, he might discharge the duty and render the interposition of the court unnecessary. At all events, he is not in privity with his predecessor; much less is he his predecessor’s personal representative.”

We have examined the case of Thompson v. United States, 103 U. S. 480, 26 L. Ed. 521, which appears to be in conflict with the views expressed in United States v. Boutwell and Secretary v. McGarrahan, supra, and agree with Mr. Merrill in his work on Mandamus, when he says that it is difficult to reconcile the Thompson Case with those of Boutwell and McGarrahan. The court in the Thompson Case undertakes to distinguish it from the others, but we confess that we cannot understand how they are distinguishable. We believe that what the court said in the Boutwell and McGarrahan Cases is correct and supported by law and reason. We cannot find any statute which declares that the suit shall not abate.

The judgment as prayed by the relator, attempting to coerce the ex-officials into action, would be futile, for the reason that they cannot perform official duties, their successors having been inducted into office, and the judgment against the present incumbents would be void, in that they never had notice of any action pending against them.

Although we did consider the case upon its merits, as argued and submitted, and although the point as to abatement of the action was not raised by counsel on either side, nevertheless, • the point having occurred to our minds during consultation, it becomes necessary to order that tbe alternative writ be quashed, the writ of mandate be denied, and the proceeding dismissed, the suit having abated. There seems to be no alternative. It is so ordered.

Rehearing denied March 1, 1905.

Dismissed.

Mr. Ohiee Justice Brantly and Mr. Justice Holloway concur.