Board of Commissioners of Shoshone County v. Mayhew

51 P. 411, 5 Idaho 572, 1897 Ida. LEXIS 54

Opinions

QUARLES, J.

This is an original proceeding in this court by way of application for a writ of mandamus to compel the respondent, as district' judge of the first judicial district, to hear at chambers an appeal from an order of the board of county commissioners of Shoshone county to the district court of said district in and for said county. It appears from the petition that said county commissioners made, on the thirteenth day of October, 1897, an order employing W. B. Heyburn as attorney to bring an action contesting the validity of certain bonds theretofore issued by said Shoshone county. From said order one G-. Scott Anderson appealed, on the twenty-second day of October, 1897, to said district, court, giving notice of appeal, and executing an undertaking on appeal. It further appears that on the twenty-eighth, day of October, 1897, the said appellant, by his attorney, W. W. Woods, served upon the respondent, as said district judge, notice, in writing, of the pend-ency of such appeal, and that the clerk of the said board of commissioners did within five days thereafter transmit to the respondent, as said district judge, copies of all of the papers and proceedings relating to said appeal. It further appears that the petitioner here and its said attorney presented a petition to the respondent, as said district judge, praying that he fix a time for the hearing by him, as such district judge, at chambers, of said appeal, and the hearing on this petition was had on the thirtieth day of October, 1897, whereupon the respondent, as said district judge, made an order refusing to set a time for the hearing of said appeal at chambers, prior to the next term of court in the county from which the appeal is taken. Said order is in words and figures as follows: “'This matter coming up before me at chambers at Wallace, in said Shoshone county, on an application, made by W. B. Heyburn on behalf of said county and personally, that said appeal should be beard speedily, and that I fix a time and place convenient to me to hear said appeal, and appellant being represented upon said motion by W. W. Woods, Esq., his attorney, and resisting said motion, and asking that the hearing of said appeal be postponed to the next regular term of the district court in Shoshone county, upon fully hearing said motion, and considering said petition, together with the exhibits presented therewith, said motion to fix a time and place for the hearing of said appeal before the next regular term of said district court is denied, and it is ordered that said appeal shall not be heard before said next regular term of said court, it being my opinion that no serious injury will result from such delay. Dated October 30, 1897. A. E. Mayhew, Judge of the District Court of the First Judicial District of Idaho.”

The application made to the district judge to hear said appeal at chambers was made under section 1777 of the Kevised Statutes, as amended by act of March 6, 1895 (Sess. Laws 1895, p. 51), which is as follows: “Such appeal may be taken to the district court, or the judge thereof, of the judicial district of which the county is a part by serving upon the clerk of the board a notice of appeal so referring to the act, order or proceeding appealed from as to identify it; that upon notice, in writing of such appeal being brought by any person to the attention of such judge, he shall fix the earliest time and a place, convenient to himself, for the hearing of such -appeal, which may be heard in a summary manner before him, or his court, and, when in his opinion no serious injury will result from delay, the hearing shall be hkd during the next term of this court in the county from which the appeal comes. When the appeal is made for the purpose of protecting the interests of the county and of the people, no requirement shall be made of the appellant for security of costs, except that when the district judge shall be of opinion that such appeal is not made in good faith, but is for delay and vexation, he may require the appellant to enter into an undertaking with good sureties in an amount sufficient to secure the payment of costs, and in all other cases like undertaking shall be required.”

The petition upon which the said application was made is as follows: “To the Honorable A. E. Majdiew, Judge of said court: Your petitioner respectfully represents that he is the W. B. Heyburn mentioned in the notice of appeal above mentioned as the person with whom the contract by the board of county commissioners was made, and to whom the warrant mentioned in said notice of appeal was issued. Theretofore, to wit, on the thirteenth day of October, 1897, at the special instance and request of the board of county commissioners of Shoshone county, your petitioner gave to said board his opinion in writing as to the validity of the bonded indebtedness of Shoshone county. ¡That, upon said opinion being given, and considered by the said board of county commissioners, the said board advised your petitioner that they desired to retain his services for the purpose of testing the validity of the said bonded indebtedness, and requested your petitioner to state upon what terms and conditions he would perform such service; whereupon your petitioner, pursuant to said request, advised said board that he would charge them a retainer of $1,000, and that, in case the court should decide that any portion of said bond issue ‘series 1’ in excess of the sum of $15,000 is illegal, he would charge them a further sum of $5,000; and, in the case the court should decide that any portion in excess of $15,000 of bond issue ‘series was illegal, he would charge them a further sum of $3,000. And thereupon the said board of county commissioners agreed to the proposition of your petitioner with reference to fees in said matter, and passed a resolution in regard to the matter, a copy of which is attached to the notice of appeal in this case. That, pursuant to said employment of your petitioner, he has, since the said thirteenth day of October, 1897, been engaged in preparing to take the proper and necessary legal steps to prevent the treasurer of Shoshone county from paying the interest on said bonds which would accrue on the first day of January, 1898. That the preparation of said case requires extensive investigation of authorities as well as the preparation of voluminous papers and documents, and an extensive examination of the records of Shoshone county, in order that the matter may be properly presented to the court, to enable it to determine the question as to the validity of the said bonds. That to properly prepare said ease to determine the validity of said bonds it will occupy a large portion of the time of yonr petitioner between now and the time when it will be necessary to secure the action of the court to prevent the payment of the interest on said bonds; and, unless the action contemplated hy the said board of commissioners is speedily taken, your petitioner believes that the treasurer of Shoshone county will pay the interest on said bonds, and that thereby the said county will be the loser to the extent of the money paid. That it is necessary in the interest of Shoshone county that the question of the validity of the action of the said board of county commissioners in employing your petitioner be speedily determined, and that the question as to the validity of said bonds should be speedily determined. That serious injury would result should the hearing of this appeal be delayed until the next term of the court in Shoshone county. The opinion given to the said board of commissioners by your petitioner, upon which the action appealed from is taken by the board, is herewith presented. Wherefore your petitioner prays that your honor may fix the earliest time and place convenient to your honor for the hearing of said appeal, and that the said appeal may be heard before your honor in a summary manner; and your petitioner will ever pray, etc. W. B. Hey-burn, Petitioner.”

The respondent moved to quash the alternative writ issued herein upon the ground that this proceeding was commenced by the “board of county commissioners of Shoshone county,” without naming them, and that said board is not a corporation or partnership, and cannot sue by such name; and for the further reason that the petition herein was not verified by any person authorized by law to verify it. The respondent then, by consent of the court and of counsel for petitioner, filed return to the writ, without prejudice to said motion. The return raises two questions: 1. That in continuing the hearing of said appeal to the next term of the district court' sitting in and for Shoshone county the respondent, as district judge, was exercising a judicial discretion vested in him, and which discretion cannot he controlled by mandamus. 2. That the act of March 6, 1895, amending section 1777 of the Be- vised Statutes, is void, for the reason that said act was not passed in the manner provided by the constitution; and, the said act being void, that the respondent, as such district judge, has no jurisdiction at chambers to hear said appeal. The motion to quash the writ and the proceeding on its merits were argued and considered together.

Under our view of this case it is not necessary to decide the motion to quash the alternative writ. Without deciding the question, we will say that it is exceedingly doubtful whether the board of commissioners of a county, as such, have authority, in the name of the board, to commence a suit or proceeding for the benefit of the county. In this case the name of the petitioner is stated in the petition as "the board of county commissioners of Shoshone county, state of Idaho.” Such board of commissioners, as such, is not a corporation, and we know of no authority by which the board can sue by its common name. The board of commissioners do not appear to be the real party in interest. We think that the first point raised by the return is well taken, and fully sustained by authority. The statute above quoted vests in district judges a judicial discretion in passing upon the application to hear at chambers in a summary manner, which cannot be controlled by mandamus. The petition presented to the respondent as judge of the first district and herein quoted, raised one question — that of the existence of an urgency or necessity to hear the appeal summarily at chambers, to be decided by him judicially. The terms of the statute under which the said application was made vest in the judge a judicial discretion. The statute says: “When, in his opinion, no serious injury will result from delay, the hearing shall be had during the next term of his court in the county from which the appeal comes.” 'After hearing the application, the respondent district judge judicially determined that “no serious injury will result from such delay.” We are now asked to say that the judge of the first judicial district abused the discretion reposed in him. And it is argued here that the county of Shoshone will suffer to the extent of $10,-000 if said appeal is not speedily heard by said judge, inasmuch as the treasurer of Shoshone county will, on January 1st, next, pay interest to that extent on bonds which are alleged to be void, unless prevented by a suit to be commenced by said Heyburn, as attorney for said county, under tbe said order. It does not appear tbat tbe said treasurer threatens to pay said interest, or tbat be will disobey the order of said board directing him not to pay said interest, which said order is in effect, although an appeal therefrom is pending. Nor does it appear that it was shown to said district judge that said treasurer would violate his duty, and pay said interest, prior to a determination of said appeal, or during litigation commenced under said orders of said board to test the validity of said bonds. There is no evidence before this court that said treasurer intends to or will violate and ignore the order made by the said board by paying said interest prior to a decision upon such appeal. The counsel for the petitioner asserts that there is danger of said treasurer making such payment. This court, nor any other court, is not justified in finding a fact upon oral assertions made by counsel, however eminent he may be, especially when the finding of such fact imputes to a public officer a violation of official duty, in determining whether the district judge violated his discretion or not, if we should assume to do so, the identical case presented to him should be presented to this court.

The question of law that is here involved is tersely, and, as we think, correctly, stated by Mr. High in his work on Extraordinary Legal Bemedies, second edition, at section 176, as follows: “We have thus considered in detail the general rule denying relief by mandamus in all cases where the purpose of the application is to control the judgment or interfere with the discretion of the court below. The controlling principle in refusing the interference in all such cases seems to be to leave the inferior court untramn ded in the exercise of ii; own powers, and to refuse a species of relief which would, i.i effect, substitute the opinion of the superior for that of the inferior tribunal, and compel the latter to render judgment, not according to its own views of the law, but by substituting another judgment in lieu of its own, while the cause is yec pending before it. Such a procedure would be alike foreign to the nature and purpose of the remedy under consideration, and we may therefore conclude that the doctrine is too firmly established, both upon principle and authority, to admit of any doubt that mandamus will not lie to control the judgment or discretion of an inferior court.” The supreme court of California, in Strong v. Grant, 99 Cal. 100, 33 Pac. 734, say: “The rule is so well established that it may be said to be universal that the writ of mandate cannot be used to correct the errors of a court in passing upon questions regularly submitted to it in the course of a judicial proceeding, or to control the exercises of its discretion” — citing High on Extraordinary Legal Remedies, secs. 24, 149, 152; Merrill on Mandamus, sec. 187; State v. Court of Common Pleas, 38 N. J. L. 182; Mooney v. Edwards, 51 N. J. L. 479, 17 Atl. 973; Davis v. County Commrs., 63 Me. 396; Judges of Oneida Common Pleas v. People, 18 Wend. 79; Ex parte Johnson, 25 Ark. 614; State v. Norton, 20 Kan. 506; Ex parte Koon, 1 Denio, 644; People v. Weston, 28 Cal. 640; People v. Pratt, 28 Cal. 166, 87 Am. Dec. 110; Smith v. Judge of District Court, 17 Cal. 548; Lewis v. Barclay, 35 Cal. 213. We have examined numerous authorities, all to the same effect, but deem it unnecessary to cite further authority. We do not feel justified in announcing the rule that, when a district or inferior court, in the exercise of its discretion, makes an order continuing a ease before it, mandamus will lie to compel such court to reverse its decision, and hear the case. Such rule would be fraught with great danger, and contrary to authority. This view of the case necessarily disposes of this proceeding, and it is unnecessary to pass upon the second question raised by the return. It is a well-established rule, to which we know of no exception, that courts will not pass upon the validity of a statute, unless it is necessary to a decision of the case before it. In this ease it is not necessary to pass on the constitutionality of the act of March 6, 1895. The peremptory writ is denied, with costs to the defendants.

Huston, J., concurs.