Legg v. Mayor of Annapolis

Alvey, J.,

delivered the opinion of the Court.

In this case, application was made by the appellees for the writ of mandamus to be directed to the appellants, and upon that application a rule was made requiring the appellants to answer by a named day. The appellants answered, but the answer, being regarded as insufficient, was, upon motion of the appellees, quashed; and thereupon the appellees moved that judgment be given in their favor, for want of an answer or plea, and that a ¡peremptory writ of mandamus be granted without delay against the appellants. This motion was granted, and the writ ordered to be issued. It is from that order that the present appeal was taken.

The case has been very fully and ably argued, and many questions have been discussed of peculiar interest and nicety; but of the questions presented we propose to decide only those which seem to be leading and controlling in the controversy.

1. Whether any evidence be admissible to show that an Act of the last Legislature, chapter 421, to provide for the appointment of a Board of Police Commissioners for the City of Annapolis, was not constitutionally enacted, that Act having all the forms of authentication prescribed by the Constitution ?

2. If evidence be admissible for such purpose, whether, after quashing the answer of the appellants, the Court below should have heard the evidence to impeach the validity of the statute, instead of taking the allegations of the appellees as confessed for want of answer thereto?

3. And finally, whether the allegations of the appellees, assuming them to have been either confessed or proven, constituted a proper case for the issue of the writ of mandamus ?

The determination of these questions would seem to embrace all the material points of controversy between the parties.

1. While the presumption arising from the proper forms of authentication of a statute is very strong that the statute was regularly and constitutionally enacted by the Legislature, the authorities maintain that such presumptiou may be overcome by competent evidence, and the statute be shown to have never been constitutionally enacted. And this Court have so decided, at the present term, in the case of Berry vs. The Drum Point Railroad Co., 41 Md., 446. A valid statute cfiu only be passed in the manner prescribed by the Constitution, and when the provisions of that instrument, in regard to the manner of enacting laws, are wholly disregarded, in respect to a partieular Act, it would seem to be a necessary conclusion that the Act, though having the forms of authenticity, must be declared to be a nullity. Otherwise the express mandatory provisions of the Constitution would he of no avail or force whatever.

In the case to which we have just referred, of Berry vs. The Drum Point R. R. Co., we decided, adopting the conclusion of the Supreme Court of the United States, in Gardner vs. The Collector, 6 Wall., 499, that whenever a question arises in a Court of law as to the existence of a statute, or as to the time when it took effect, or as to its precise terms, the Judges who are called upon to decide such question, have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question ; the best and most satisfactory evidence in all cases being required.

If then it be true, as alleged in the petition of the appellees, that the Act in question never in fact passed both Houses of the Legislature, substantially, as it was approved by the Governor, sealed with the Great seal, and published, and that fact can be clearly and indubitably established by competent evidence, it follows that the Act is a nullity, and the Court would have so to declare it.

2. We come noyv to the second question, that is, as to the proper mode of proceeding upon quashing the answer of the appellants.

The appellants contend that their answer was improperly quashed; that it contained sufficient cause against the issuing of the writ, and though it was evasive in some of its parts, it should not have been quashed as a whole.

According to present practice, as prescribed by the Code, Art. 59, the answer to the applicant’s petition, filed under rule, stands in the place of the return to the alternative writ under former practice, and it is not required to be more specific or certain in the statement of the defences upon which the defendant relies, than was required in the return to the alternative writ. It was not essential, in order to support the return, that every part of it should be good; it was sufficient if enough was made" to appear, to constitute a full justification for what was complained of, or a good legal reason why the mandamus should not be issued ; and if a return was good in part, and bad in part, the good part could be separated from that which was bad. Rex vs. Archbishop of York, 6 T. Rep., 493; Rex vs. Mayor of London, 3 B. & Adol., 268. If therefore the answer in this case contained or set up any sufficient reason for refusing- the mandamus, though it was in other respects evasive and irresponsive, it should not have been quashed as a whole.

But assuming, without deciding, that the answer was properly quashed, what was then the proper mode of proceeding, in the absence of an answer. The Code, Art. 59, sec. 9, provides that “If the defendant, shall neglect to file his answer to the petition by the day named in the order of the Judge, after being served with notice thereof, the said Judge shall thereupon proceed to hear the said motion ex parte, within five days thereafter, and if he shall be of the opinion that the fads and lazo of the case authorize the granting of a mandamus as prayed, he shall thereupon, without delay, order a peremptory mandamus to issue and by the next succeeding section it is provided, that if the Judge shall upon such ex parte hearing be of opinion that the facts and law of the case do not authorize the granting of a mandamus, he shall dismiss the petition with costs.

In this case, we think the learned Judge below fell into error in supposing that he was required to act upon the allegations of the petition as if they had been confessed, or to assume that they were true, because the appellants had failed to make sufficient answer to them. The statute, according to our understanding of it, does not contemplate such a mode of proceeding. From the very nature of the remedy itself, and the circumstances under which it is ordinarily applied for, it would seem to be proper that the Judge should not ouly be able to see that the application presents a proper case for the issue of the writ, but that the facts upon which the application is based are made to appear with reasonable certainty. Hence, in the absence of an answer, the Judge is required to hear the case ex parte; that is, to allow the applicant to produce his proof, to satisfy the mind of the Judge, that the allegations of the petition are founded in truth ; and if upon such ex parte hearing the Judge should be of opinion that the facts and laio of the case authorize the granting of the writ, he orders it to issue, but if not of that opinion he is required to dismiss the petition with costs. The allegations of the petition are not authorized to be taken pro confesso; nor is the Judge authorized to enter judgment as by default for want of answer, or by nil dicit. The case must be heard, and the mind of the Judge satisfied, both as to the law and the facts, before the writ can be ordered

Here, the question upon which the right depends is, whether a certain public statute, appearing in the statute book, with all the prescribed forms of authentication, is valid or not. By the petition of the appellees facts are alleged, which, if true, and are proven by competent and sufficient evidence, will require the Court to declare the statute void. But the question whether a statute has been constitutionally enacted by the Legislature cannot be tried upon mere ex parte affidavits, nor upon any other than the best and most reliable evidence. As opposed to the allegations of the petition, the statute itself, as published by authority, furnished at least a strong prima facie cause against granting the writ; and of the statute the Court was bound to take judicial notice. The onus of proof was upon the appellees, with a strong presumption against the right asserted by them, and before that right could be recognized and judicially declared, in the face of a }3ublic statute, having almost á conclusive presumption in its support, the appellees were bound to furnish the most conclusive evidence of the truth of the facts upon which they rely to invalidate the statute. It is a question as to the existence of a law, upon which the fights and obligations of the parties, and also of the public, depend, and the inquiry proposed is one addressed exclusively to the Judge. It is not a question to be submitted to the jury, but it is the duty of the Judge or Court, whenever such a question is made, to exact the most convincing evidence, and to declare the statute assailed valid or invalid, as the judicial mind may conclude, upon the evidence produced. De Bow vs. The People, 1 Denio, 9.

To allow a public statute to be invalidated and set aside upon the mere allegations of a party, though under oath, as to the manner of its enactment, would be not only an unprecedented proceeding, but one fraught with the most serious consequences. Indeed, the Court would not be justified, in such case as this, in taking the admissions or confessions of the defendant as evidence upon which to declare a public statute a nullity. The public are interested in maintaining the statute, and it is not competent to parties, though engaged in an adverse litigation, to procure a public statute, affecting the public interest, to be declared a' nullity, upon their mere allegations and admissions, as to the manner in which the statute was enacted by the Legislature. Proof of a higher and more reliable character should be required in such case.

3. The next and last question is, whether the petition of the appellees presented a case proper for the issue of a mandamus; and this question is important to he decided, as upon its decision depends whether the case shall he remanded, or be dismissed, without further proceeding.

According to the allegations of the petition in this case, the appellees are in office exercising all the duties and functions thereof, and the appellants, though appointed to the new office created by the statute of 1874, chapter 421, have not entered upon the duties of that office, and have in no manner interfered with the appellees in the exercise of the office they hold. The appellants are not charged with withholding anything that pertains to the office of the appellees, nor even with exercising powers and privileges that are in conflict with those exercised by the latter. It is alleged that the appellants have been appointed by the Governor under the Act of 1874, as Police Commissioners, and that, as the appellees are informed, they have accepted the appointment, or intend to accept the same, “and undoubtedly propose and design, unless restrained from so doing, to exercise all and singular the powers pretended to be conferred on them as a Board of Police Commissioners, by said pretended law.” The petition then proceeds to pray that a writ of mandamus may issue to the appellants, “commanding them, and each of them, to surcease and desist from exercising, or assuming to exercise, in any manner, any power or authority or jurisdiction under the said pretended Act, hy the appointment of any police or otherwise ; and further commanding them, and each of them, to abstain from interfering, or attempting to interfere, with the police department established by your petitioners, under their said charter and ordinances, and from hindering, obstructing, resisting or opposing, the executive officers of said city, in the exercise of their lawful powers, and in the discharge of their official duties.”

This is the usual prayer for an injunction, in a bill in equity, to restrain an unlawful interference with rights; but we are not aware of any precedent for the use of the writ of mandamus to accomplish such a purpose. Mandamus is a writ commanding the performance of some act or duty, therein specified, in the performance of which the applicant for the writ is interested, or by the non-performance of which he is aggrieved or injured. Reg. vs. Bishop of Chichester, 2 Ell. & Ell., 209. But as simply a preventive remedy it has never been used, so far as we have been able to discover. The nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice, and defect of police. Its use is therefore confined to those occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. 6 Bac. Abr., Tit. Mand,., 418. But there can be no want of remedy for any illegal or improper interference with the exercise of the powers and duties legally pertaining to the office of the appellees.

In the ease of Reg. vs. Peach, 2 Salk., 572, a dissenting minister, being qualified to preach under the toleration Act, and being illegally convicted for the exercise of his right, and supposing that he would be further prevented from exercising his right to preach, except at his peril of abiding a conviction therefor, applied for a mandamus to be permitted to preach. But the writ was denied, and the Court held, “that a mandamus is always to do some act in execution of law;” whereas the writ, if issued in that case, would be in the nature of a writ de non molestando. And in accordance with this case, Oh. Baron Comyks, in his Dig., Tit. Mand. (B,) lays it down as settled, that a mandamus does not lie to prevent a molestation against law. The same principle is stated by Tapping in his work, as the settled law. Tapp, on Mand., 189, 190.

(Decided 12th March, 1875.)

Taking this to he an established principle upon the subject, there is no proper case stated in the petition of the appellees to justify the issuing the writ. The application was founded entirely upon an apprehension that the appellees might be disturbed or molested in the exercise of some of the functions and powers that have heretofore belonged, and may still pertain, to their office. To grant the writ in such case, would he simply making it a substitute for an injunction.

We think the petition ought to be dismissed, and we shall therefore reverse the order appealed from, and dismiss the petition with costs to the appellants.

Order reversed, and petition dismissed, with costs.