Fisher v. Mayor of Charleston

17 W. Va. 628, 1881 W. Va. LEXIS 78

• Court: West Virginia Supreme Court
• Decided: April 2, 1881
• Status: Published

Opinion

Green, President,

delivered the opinion of the Court :

In the case of Henry J. Fisher v. The City of Charleston, just decided by this Court, a rule was awarded to show cause why a mandamus should not be issued. In this case no such rule issued; but on the filing of the petitions alternative writs of mandamus at once issued. The old English practice was to issue a rule to show cause why a mandamus should not issue, before an alternative writ of mandamus was issued; and this was formerly the practice in New York. See Commercial Bank v. Canal Commissioners, 10 Wend. 25; People v. Judges of Washington, 1 Caines 311. But in this country this previous rule is often dispensed with, as the alternative writ itself is in the nature of a rule to show cause why a peremptory writ of mandamus should not issue. See Murphy v. Wentworth, 36 Tex. 147; Attorney Gen. Ex. rel. Cushing v. Sum, 2 Wis. 381. In The Dinwiddie Justices v. The Chesterfield Justices, 5 Call 556, it was decided, that it was essentially necessary, that a rule to show cause why a mandamus should not be awarded should be issued before an alternative writ of mandamus was issued. In Sights v. Yarnalls, 12 Gratt. 302, it was decided, that in that case there was no irregularity in awarding the alternative writ of mandamus without any previous rule upon the party to show cause against the awarding of a mandamus. In Douglass & Woodward v. Loomis, judge, 5 W. Va. 544, President Berkshire says : “ The invariable practice seems to have been to apply in the first instance by suggestion or motion supported by affidavit to the court-having jurisdiction for a rule against the defendant or person refusing to do the act required to be done by the complainant, to show cause why a mandamus should not issue against him.”

This may be true as to the English practice, but it certainly is not true, as we have seen,- as to the practice in some of the States of this Union. Nor is it universally true as to the practice in Virginia, as is shown by the case of Sights v. Yarnalls, 12 Gratt. 302. Nor is it invariably true as to the practice in West Virginia. In the case of Bridges v. Shallcross, 6 W. Va. 562, and Shields & Preston v. Bennett, auditor, 8 W. Va. 72, this Court awarded alternative writs of mandamus without issuing any previous rule to show cause why a mandamus should not issue. The issuing of such previous rule is ordinarily useless and produces delay without any corresponding benefit. The practice in this State as settled by these authorities is, that the court may issue the alternative writ of mandamus upon the filing of the petition without issuing any previous rule to show cause why a mandamus should not be awarded, though doubtless the court may, if it deem it proper, in a particular case decline to issue an alternative writ of mandamus, until a rule to show cause has been first issued and returned.

s Uabus t Srllabus2- Syllabus 3-

In the cases before- us the court did not err in ordering the issuing of alternative writs of mandamus on the filing of the petitions without first issuing a rule to show cause why a mandamus should not issue.

But the plaintiff in error insists, that the petitions in these cases were so defective, that the court ought not to have ordered upon them the issuing of any alternative writs of mandamus. The petitions set forth, that the plaintiff had obtained the several judgments against the city of Charleston, that executions had issued on them and had been returned “no property found,” and that the plaintiff knew of no property of the city of Charleston, out of which he could make his several judgments. This stated all the facts, which prima facie entitled the plaintiff to a writ of mandamus; and this is all, that it is necessary for the plaintiff to state in his petition. See Fisher v. The City of Charleston supra. In that case the facts stated in the petition were the same as those stated in the petitions in these cases, and they were held sufficient. It is true, that in these cases the plaintiff in his several petitions prays, that a writ of mandamus be awarded against the mayor, treasurer, recorder and coun- . oilmen of Charleston (naming them severally) returnable to the circuit court of Kanawha at its next term, commanding them to levy a tax upon the taxable property within the corporate'limits of the city of Charleston sufficient to satisfy the petitioner’s several judgments, interest and costs, or show cause, it any they can, why they shall not do so. We will presently see he was not entitled to have such an alternative writ of mandamus awarded, though he was entitled to have a different alternative writ of mandamus issued on his petition.

Syllabus d.

But the petition forms no part of the pleadings in a mandamus ease. It is only the basis, on which the alternative writ of mandamus is awarded. It is a convenient substitute for a motion for a mandamus nisi supported by an affidavit, which was formerly the usual mode of proceeding; and as then, though the plaintiff on filing the affidavit might move for an alternative writ of mandamus, such as he was not entitled to, yet if the facts disclosed by the affidavit justified the issuing of an alternative writ of mandamus, different though it be from what the plaintiff asked, yet the court would award him such an alternative writ of mandamus as he was really entitled to. So if the petition sworn to set out facts entitling the party to an alternative writ of mandamus, the court should award it, though the prayer of the petition was for a different mandamus. The material part of such a petition are the facts stated and sworn to and not its exact prayer. Fisher v. The City of Charleston, supra.

The next enquiry is: Was the alternative momdamus awarded in this case such as the court on these petitions should have awarded ? If not, they should have been quashed, when the defendants afterwards moved to have them quashed. The mandamus nisi or alternative writ of mandamus in each of these cases commanded the treasurer to pay over to the plaintiff any moneys m his hands otherwise not appropriated, not exceeding his judgment, interest and costs, and if for want of funds he did'not pay the same, then it commanded the mayor, recorder and councilmen to levy a tax upon the taxable property within the corporate limits of the city of Charleston sufficient to satisfy said judgment, interest and costs, to set apart the proceeds of such tax for the payment of the same, and pay over said proceeds to the plaintiff, or show cause, if any they could, why they should not do so. This is such a mandamus as ought not to have been awarded, for the following reasons:

syiiaRus 5.

First. Because, though there were unappropriated funds in the hands of the treasurer, it was not his duty to pay them over on the plaintiff’s judgment, unless they had been previously appropriated or set apart by an order of the council to the payment of the plaintiff’s judgment. There might well be other judgments equally or better entitled to be paid out of such unappropriated funds. And until set apart or appropriated by an order of the council, the treasurer ought not to apply them to the payment of any particular judgment; and even if they had been so appropriated by order of the council, it may be questionable even then, whether if the treasurer refused to pay them on the judgment, he should be enforced to do so by mandamus. Perhaps the true remedy of the plaintiff in such case might be an ordinary common law suit against the treasurer. But there being no such order of the council, it is clear, that it was not the duty of the treasurer to pay this judgment out of such unappropriated fund; and therefore no mandamus could issue against him commanding him to do so.

Secondly. This mandamus should not have been awarded, because the mandamus against the mayor, recorder and councilmen is also erroneous. It requires them to levy a sufficient tax to pay the plaintiff’s claim and set it apart for its payment and pay over to him the proceeds thereof. It was not the duty of the common council to pay over the proceeds of such tax to the plaintiff, nor had they the power to do so. The 'proceeds of"such_tax passes by law into the hands of the treasurer, and he alone could pay it over to the plaintiff. All that the common council could do was, to levy a sufficient tax to pay the plaintiff’s judgment, interest and costs, and to set aside and appropriate the proceeds of such tax to the payment thereof; and they should not in the alternative mandamus have been ordered to do more, or show cause why more was not done. For it is well settled that the command inserted in the alternative writ of mandamus must be strictly followed in the peremptory writ of mandamus, and it can not be varied or modified. If all that is asked in the alternative writ cannot be granted, nothing that is asked will be granted. See Regina v. The East and West India Dock and Birmingham Junction Railway Co., 2 El. & Bl. 473; Regina v. Tithe Commissioners, 14 Q. B. 459, (E. C. L. R. 68); Chance v. Temple, 1 Ia. 195; The State of Iowa ex rel Dox. v. The County Judge of Johnson County et al., 12 Ia. 242; State ex rel. Hasbrouck v. The City of Milwaukie, 22 Wis. 398; Chipman v. Todd, 60 Minn. 281, 282; The People v. The Supervisors of Dutchess, 1 Hill 55.

Syllabus 6. Syllabus 7.

There are defects in the commanding clause in the alternative writs of mandamus ; but these are not the only or even principal defects in these alternative writs of mandamus. Every alternative writ of mandamus should have an inducement preceeding the commanding clause, which inducement should set out all the facts on which the plaintiff bases his right to demand a mandamus. This is an essential part of every alternative writ of mandamus. It really constitutes the plaintiff’s declaration in the case, and the return is the defendant’s plea. This inducement therefore should state all the necessary facts to entitle the plaintiff to the precise redress he asks with the same degree of certainty as a declaration in a common law suit. See McReagie et al. v. Wm. Ruth, Mayor, 22 Ohio St. 371; The People v. The Supervisors of Westchester, 15 Barb. 607, 613; The Commercial Bank of Allegheny v. The Canal Commissioners, 10 ; The People v. Ransom, 2 Comst. 490; Canal Trustees v. The People, 12 Ill. 254; The King v. The Bishop of Oxford, 7 East 348. But such facts for the reasons hereafter stated are set forth by way of recital or after a ‘-‘whereas/’ though this mode of setting forth facts is not allowed in a declaration in an ordinary suit.

Syinims 8.

The several alternative writs of mandamus utterly failed in their inducement to state any, of the facts, on which the plaintiff bases his demand. They simply state, that whereag the plaintiff had filed a petition for a mandamus and the judge had ordered it to be issued, therefore we command you, &c. No issue could possibly be made on such an alternative writ. No facts are stated. It is simply a writ and can not serve, as it must, the further purposes of a declaration. An alternative writ of mandamus answers two distinct ends. First, it is a writ; and secondly it is the plaintiff’s declaration. In form it is a writ, but is distinguishable from an ordinary writ of any other sort in this, that the inducement must set out all the facts, on which plaintiff’s demand rests, as clearly as it must be done in a declaration withjthis difference however, that in the alternative writ of mandamus these facts are set out as a preamble to the writ, and therefore by way of recital; whereas in a declaration they can not generally be set out by way of recital. See forms of alternative writs of mandamus in the appendix to Moses on Mandamus, pp. 242 and 254, one of which is taken from the case of The State v. The City of Cincinnati et al, 19 Ohio 178.

This defect in the inducement of these several writs of mandamus was attempted to be remedied with leave 0f the court by their amendment. This amendment consisted in inserting in these writs a preamble to this effect: and whereas it appearing by the petition and affidavit of the plaintiff, that he recovered a judgment against the “ city of Charleston ” on such a day (setting out the judgment- in full), that execution had been issued on said judgment and had been returned by the sheriff of Kanawha county “no property found,” and that said .judgment is wholly unpaid; that said city has no property out of which said judgment can be made, that said city is a municipal corporation, and its affairs are managed by its mayor, recorder and councilmen, who perform all the duties of the corporation in relation to levying and collecting taxes and paying its debts, and whereas an order of the judge, &c., has been made, we therefore command you, &c.; the residue of the writ being left as it was originally.

This inducement is ample, every fact necessary to sustain a writ of mandamus and necessary to be alleged in the alternative writ being herein set out. See Fisher v. The City of Charleston, supra. But such preamble is faulty in asserting that these facts appear in the petition. Such was not the fact. For instance, it did not appear in the petition, that the plaintiff’s judgment was wholly unpaid. Nor was it necessary it should appear there, though it was necessary it should appear in the alterna■tive writ, for the reasons stated in the case last cited. The latter part of this preamble is not only not in the petition, but is not true in point oí fact, as the court will take judicial notice of, that is, it is not true that “the mayor, recorder and councilmen perform all the duties of the corporation in relation to levying and collecting taxes and paying its debts.” Instead of .this the truth is, “ they perform the duty of levying taxes and setting apart and appropriating them by their order to the payment of any debt they may specify;” and this should have been the allegation. The alternative writs should instead of this have commenced by reciting, “Whereas it is suggested, that Henry J. Fisher has recovered,” &c., setting out the facts stated in the amendment to the alternative writs, correcting the error above pointed out at its close, and stating the facts in a more precise form.

But even if the inducement of these writs had thus been made correct, the writs as amended would still have been fatally defective, as the commanding clause re-. mained unchanged by the amendments, and this portion of these writs was fatally defective, as we have pointed out. The conclusion of the writs should have been, “we therefore command you, the city of Charleston, by the mayor, recorder and eouncilmen thereof to levy a tax upon the taxable property within the corporate limits of said city of Charleston sufficient to satisfy said judgment, interest and costs, and to set apart the proceeds of said tax for the payment of said judgment, interest and costs, or to show cause, if any you can, why you shall not do so.” The reasons, why it should be addressed to the city of Charleston rather than to the individual members, who then in their official capacity composed that corporation, are given in the said case of Fisher v. The City of Charleston, supra.

Syllabus 9.

Did the circuit court err in consolidating in the manner it did these three cases and in refusing to consolidate them with the fourth case ? The matter was properly brought before the couit by a rule. See McCrea v. Boust, 3 Rand. 482. The material and undisputed facts were, that two of the judgments, the payment of which the plaintiff was seeking to enforce in these four separate proceedings, were rendered at the same time by the same court. The third judgment was rendered by the same court at a different time. But the proceedings in these three cases were all instituted near the same time and were exactly alike, the defence in these three proceedings being the same. The fourth proceeding differed from these three and was to enforce a judgment of a different date, and the defence to it was entirely different. The defendants claimed to have paid in full this judgment, and this payment was their only defence in that case. In the other cases they did not pretend, that they had paid any thing on these judgments.

In the case of Thompson v. Shepherd, 9 Johns. 262, the court say: “ The motion for a rule, that these cases be consolidated, must be refused. The notes are of different dates, for different sums and payable at different times; and for anything, that appears, different defences .may be set up in the several suits. To compel a consolidation under such circumstances would be going further than is the usual practice of this court, or of the King’s Bench in England (1 Caines 114; Imp. K. B. Pract. 668; 1 Tidd Pr. 566), though the case of Cecil v. Briggs, 2 Term. Rep. 639, would seem to extend the consolidation rule to all actions between the same parties, and brought at the same time, when the causes of action might be comprised in the same declaration. A liberal extension of the rule is well calculated to prevent oppression by an unnecessary accumulation of costs, and we should be inclined to say, that when separate suits are brought upon notes or contracts made at the same time, and which might have been united in one action, and when the defence is the same in all, a consolidation rule ought to be granted. See also McCrae v. Boust, 3 Rand. 483.

Two of these cases come fully up to the consolidation rule, as thus suggested. In the third however the judgment was not rendered at the same time. It would generally be an important fact affecting the propriety of consolidating suits, that the two notes sued on in the sevei’al suits were given at different times. As this would show, that originating in different transactions, the evidence, which would probably be brought in each case, would be entirely different, and it might lead to serious embarrassment in the trial of the cases,' even though the defence might be of the same character in each case. But if the foundation of the suit or proceeding were judgments, their being of different dates would be of far less importance, as the foundation of neither judgment would be shown in evidence, and therefore there would be no probable embarrassment arising iron consolidating them, if the defences in each were the same.

In this case it appeared distinctly, that the defences in three of these cases were identical, and they were properly consolidated by the court. The fourth case the court properly refused to consolidate with the others, the de-. fence in it being entirely different. But I see no good reason why the ordinary consolidation order should not have been entered, or why in these consolidated cases but one set of costs should be taxed, whether incurred before or after the order consolidating these suits was made. The court in its order says : “But this consolidation is not to affect the costs, which have already accrued in these cases.” The plaintiff insists, that this qualification was right, because it does not appear, that when he commenced these proceedings, he knew the defence in each of these cases was the same. But if it appears to the court, that the defences are the same, it will in the absence of any proof or assertion to the contrary be assumed, that the plaintiff knew that the defences were the same. If he would in such case justify his course, so as to have separate costs awarded him, he must in answer to the rule state on oath, that when he instituted the several proceedings, he had reason to believe, and did believe, that the defences in them were different. Having failed to do this, the proceedings should be consolidated, and but one set of costs should be tax(qd, whether these costs were incurred before or after this consolidation order was made.

The peremptory writ of mandamus is in its form erroneous to some extent. The law, as we have seen, requires the peremptory writ of mandamus to follow the alternative writ with great exactness. In this case the alternative writ is not followed perhaps in some respects with the requisite exactness; but we need not point out particularly these departures, because, as we have seen, the alternative writs were substantially erroneous, and if followed strictly, the peremptory mandamus would still have been fatally erroneous. It commands the defendants, as we have seen, to do that, which they have no power to do; and such peremptory writ ought not to have been ordered.

Syllabus 10.

Other objections to the proceedings in these cases have been made and urged ; but similar objections were made in the case of Fisher v. The City of Charleston, supra, and have been acted upon by the court in that case, and reference is made to it as expressing our views on these points.

There is one question however, which the record in these cases presents, not however, referred to by counsel in their argument, on which it is proper for this court’ to express its opinion: Ought the court on the failure of the defendants to make a return to the alternative writ to ord'er a peremptory mandamus, or ought it to have taken steps to compel a return to the alternative writ ? In England the ordinary practice is under such circumstances not to issue a peremptory mandamus, but to take the requisite steps to compel a return to the alternative writ; and this is the practice pursued in some of the States, as for instance, in Wisconsin (See State ex rel. Holmes v. Baird, 11 Wis. 261.) But in other States the general practice is under such circumstances to issue at once a peremptory writ, as for instance, in New York. The true rule, which we should adopt, is that laid down in the people at the relation of Tremper v. The Judges and Supervisors of the County of Ulster, 1 Johns. 64. The court there lays down this as the rule : “ It is not requisite, that we should go through the process and delay of rules and attachments in order to compel a return to the first mandamus. The alternative writ is intended for the benefit and convenience oí defendants. As the first has been regularly served, we may, at our discretion, order a peremptory mandamus-, but as the defendants may not have had a sufficient time to meet together and make their return, we are disposed to allow them a further day for that purpose.”

Applying this rule in the present case, if the plaintifi had been entitled to a peremptory writ of mandamus, the court might properly have ordered it to be issued without compelling a return to the alternative writs of mandamus and without extending the time, within which to make such return, as the defendants had already had. a sufficient time, within which to make their return, and the proceedings indicated quite clearly, that they had no substantial defence to make, but were relying only on the irregularities of the proceedings on the part of the plaintiff.

For these reasons the judgment of the circuit court of Kanawha in these cases rendered on June 16, 1879? awarding a peremptory writ of mandamus, and also the order of June 16, 1879, reviving these cases and ordering them to proceed in the name of the newly elected officer of the city of Charleston without notice to them, and also so much of the order of June 9, 1879, as directed, that the consolidation of these cases should not affect the costs, which had then accrued in these cases, and also the three several orders made on the 19th day of December, 1878, in these cases severally permitting certain amendments of the alternative writs in these cases, also the three several orders made by the judge in these cases severally in vacation, one on the 18th day of August, 1878, and the others on the 25th of September, 1878, be set aside, reversed and annulled ; and t,he plaintiff in error must recover of the defendant in error, Henry J. Fisher, their costs in this court expended; and these cases must be remanded to the circuit court of Ka-nawha county with instructions, that in these three cases consolidated the circuit court shall order to be issued an alternative writ of mandamus to be addressed to the city of Charleston, commanding it by its mayor, recorder and councilmen, not naming them, to levy a tax upon the taxable property within the corporate limits of said city of Charleston sufficient to satisfy the several judgments, interest and costs of the plaintiff, in his several petitions mentioned, and to set apart the proceeds of said tax for the payment of said judgments, interest and costs, or show cause, if any they can, why they should not do so, and with the further instruction to proceed with these cases according to the principles laid down in this opinion and lurther according to law.

The otheb Judges Coítcurred.

Orders Reversed. Cause RemaNded.