People ex rel. Bristol v. Pearson

3 Ill. 189

Opinion

Smith, Justice,

delivered the opinion of the Court:

An alternative mandamus having issued to the judge of the Seventh Judicial Circuit, and he having made no formal return to the writ, nor returned the writ itself, but through the medium of counsel, filed what purports to be an argument against the power of this Court to take cognizance of the case ; the Court are compelled to treat the case as one in which its authority has been disregarded.

It does not, however, become necessary for the purpose of the execution of its final order to resort to any other mode, than to consider the answer filed as an insufficient compliance with its mandate, contained in the alternative writ of mandamus heretofore awarded, and therefore to award a peremptory writ, directing the signing the bill of exceptions required by the first writ.

If the judge had been of opinion, that the bill of exceptions he was required to sign, was objectionable, or contained matter which was not excepted to, or the same was untruly or incorrectly stated in the bill, he should have returned the causes of his objections ; and this Court would not compel the signing of a bill, which did not truly state the facts as they occurred at the trial.

We have looked into the grounds assumed by the judge, in his argument, and recurred to such cases as have occurred, within our reach at this time, having a bearing on the power of superior tribunals over the duties and acts of inferior ones, and the right of compelling the execution of duties and acts by writ of mandamus. A reference to some of the principal ones will be made, to show the principles on which they have been granted ; and how far they may either bear on the present question, or exempt it from their operation. The Supreme Court of the State of New York has assumed a general supervisory power over other Courts of the State, similar to that of the King’s Bench in England, and they have most generally confined the exercise of the power to grant writs of mandamus, to clear cases of ministerial duty. In the case of Wilson v. City of Albany,

Footnotes

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(1) the judges said that wherever a discretionary power was vested in an officer, and he had exercised that discretion, they would not interfere, because they would not control ; and they ought not to coerce that discretion.

In Gilbert’s case, (2) the Court refused to issue a mandamus to require the Court of Common Pleas to strike out certain conditions, which it had thought proper to annex to one of its orders. The same Court refused to compel the Court of Common Pleas to hear charges against a justice of the peace. It has, however, awarded writs of mandamus against judges of the Common Pleas to compel the signing of bills of exceptions, in several cases. In Pennsylvania, the Supreme Court of that State, which is one of general, appellate jurisdiction, has refused to say whether it will issue, in any case, a mandamus to a Court of Common Pleas.(3)

Out of twenty applications made to the Supreme Court of the United States, since its organization, but five have been granted. These cases are, United States v. Olmstead, 5 Cranch 115 ; Livingston v. Dergenions, 7 Cranch 577 ; Ex parte Bradstreet, 7 Peters 634 ; New York Insurance Co. v. Wilson, 8 Peters 291 ; Kendall v. United States, 12 Peters 524.

The results to which the Court came in these cases are, 1. To issue a mandamus to a District judge, to execute a decree of his Court, in an admiralty case where execution had been delayed on account of the extraneous interposition of a State law. 2. To proceed to a final judgment, and not stay proceedings indefinitely. 3. To reinstate a suit dismissed, on motion, after issue joined, so that the parties might have final judgment. 4. To sign judgment on the record, where it had been previously recovered, and entered according to law. 5. To compel the Postmaster General to enter a credit to individuals, awarded to them by the solicitor of the United States Treasury, in pursuance of an act of Congress, the act being definite and purely ministerial. The principle established by some of these decisions is, that there must be a suit pending in a Court below ; and that the act which the inferior Court is required to perform, must be ministerial in its character, and necessary to the final termination of the cause in that tribunal. The fifteen cases in which that Court refused applications for writs of mandamus are, United States v. Lawrence, 3 Dallas 42 ; Marbury v. Madison, 1 Cranch 137 ; Ex parte Burr, 9 Wheat. 529 ; Bank of Columbia v. Swaney, 1 Peters 567 ; Ex parte Crane, 5 Peters 190 ; Ex parte Roberts, 6 Peters 216 ; Ex parte Davenport, 6 Peters 661 ; Ex parte Bradstreet, 8 Peters 588 ; the same, 4 Peters 102 ; New York Insurance Co. v. Adams, 9 Peters 573 ; Postmaster General v. Trigg, 11 Peters 173 ; Ex parte Story, 12 Peters 339 ; Poultney v. Lafayette, 12 Peters 472 ; Ex parte Hennen, 13 Peters 230.

The principles established in these cases, in regard to this writ, are these. The Supreme Court will never compel an inferior Court, in which a suit is pending, to do an act relating to either the practice of the Court, or the merits of the case, in regard to which act the inferior Court is vested with a judicial discretion, even if they are of opinion, that the Court erred in the exercise of that discretion.

In the case of Bradstreet, (4) which was a rule against a District judge, to show cause why a mandamus should not issue to compel him to sign a bill of exceptions, Chief Justice Marshall, who delivered the unanimous opinion of the Court, said, “ This is not a case in which a judge has refused to sign a bill of exceptions. The judge has signed such a bill as he thinks correct. If the Court had granted a rule on the District judge to sign a bill of exceptions, the judge would have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had been offered to him.

“ The Court granted the rule to show cause, and the judge has shown cause by saying, that he has done all that can be required from him ; and the bill offered to him is not such a bill as he can sign. Nothing is more manifest than that the Court cannot order him to sign such a bill of exceptions. The person who offers a bill of exceptions, ought to present such a one as the judge can sign. The course to be pursued, is either to endeavor to draw up a bill, by agreement, which the judge can sign, or to prepare a bill to which there will be no objections, and present it to the judge.’-’

The Chief Justice further observes, “that there is something in the proceedings which the Court cannot sanction,” and remarks on the time and manner of the course pursued in the case, and then indicates the course which ought to be pursued, which is not necessary to be detailed.

The principles, however, settled in this case, seem to be, that a mandamus will be allowed to cause a judge to sign a bill of exceptions ; but that the judge must determine its accuracy, and whether it correctly recites the points made, and opinions excepted to ; that he must sign such a one as he believes to be correct and none other ; that he cannot refuse to sign a bill altogether, but must sign one if required, in a case where there has been exceptions taken, provided it is applied for at the proper time. Our statute allowing exceptions to the opinion of the Court, requires the exception to be taken at the trial, and declares it shall be the duty of the judge to allow, and seal, and sign the same. We suppose it would best comport with the accuracy and regularity of proceedings, in such cases, if the practice were to conform to the intentions of the law ; and that much unnecessary difficulty might be avoided, by reducing, in the language of the law, the exceptions to “ the opinion of the Court to writing, during the progress of the trial,” and have it completed while the transaction was in the memory of all the parties interested. No difficulty could then occur ; and thus much disagreement would be avoided. It must, also, be conceded, as settling the rule, that the act of signing, and approving the bill, is in its nature ministerial, though a legal discretion is in some measure to be used, in determining the character of the bill to be signed, inasmuch as it is not every bill which may be presented, that the judge would be bound to sign. We see, then, by the character of the cases cited, where this discretion commences, and where it terminates ; to what cases it may be arranged, and in what, it cannot be claimed. In looking into the present case, it appears the judge has signed a bill of exceptions ; but the party complains that he has not inserted certain portions of the deposition of the witness, which he excluded from being read on the trial, and to which order of the judge, excluding those portions, he took the exceptions. Now, had the judge offered explanation of a satisfactory character, why he could not sign the bill presented, with the excluded portions of the depositions, nothing would have been more certain, than that this Court would not compel him to sign a bill which he could not, in his judgment, properly do, in the correct and faithful discharge of his duties. Had he made a return to the writ, and given this explanation, as in the case referred to in the Supreme Court of the United States, of Judge Concklin, we should have said he had done all that can be required of him.

The law makes him, and properly so, the judge of the propriety and accuracy of the act he is called on to solemnly verify the truth of, so that it shall become a part of the record in the cause ; and it is not for other parties to determine the truth. He acts under the solemnities of an oath, and the strong presumption that he will faithfully and honestly perform his duties. That he will not violate the obligations imposed on him for their faithful discharge. In the absence of such a return, with such explanatory reasons for a refusal to sign the bill of exceptions required by the party, we are bound to award a peremptory mandamus to cause the signing of the particular bill of exceptions exhibited ; and it is awarded accordingly.

Peremptory Writ of Mandamus granted.

Note. Mandamus never lies if there is another specific legal remedy. King William Justices v. Munday, 2 Leigh 165; Oakes v. Hill, 8 Pick. 47.

To entitle a party to a mandamus, a complete, not an inchoate right must be shown; and it will not be granted unless there is no other specific remedy. The People v. Trustees of Brooklyn, 1 Wend. 318; State v. Holliday, 3 Halst. 205 ; Marbury v. Madison, 1 Cranch 137 ; 1 Peters’ Cond. R. 267.

It lies where there is no other remedy at law, although equity might relieve, or the party against whom it is asked, might be criminally prosecuted. People v. Mayor, 10 Wend. 393.

Whether a mandamus lies in any case from the Supreme Court of Pennsylvania, to the C. P., is doubted in Commonwealth v. Judges of C. P., 3 Binney 273; 1 S. & R. 187; 8 S. & R 211. In New Jersey it is settled, that though a mandamus will lie to an inferior court refusing them to proceed to judgment, yet it will not lie to command them to proceed to any particular judgment, and much less to require them to set aside a verdict and grant a new trial, or even to grant a rule to show cause for that purpose. Squier v. Gale, 1 Halst. 157 ; Roberts v. Holsworth, 5 Halst. 57 ; And see Berry v. Callet, 1 Halst. 179 ; Anon. 2 Halst. 160 ; The State v. Salem Pleas, 4 Halst. 246.

Where the record does not show mistake, misconduct, or an omission of duty on the part of a inferior court, unless such a •primd facie case is made out, supported by affidavit, as would make it the duty of the Court to interfere, a rule to show cause will not bé granted. Postmaster v. Trigg, 11 Peters 173.

In Indiana, where the judgment of the Circuit Court is reversed, and the proceedings up to a certain point, are set aside at the costs of the defendant in error, and the cause is remanded for further proceedings; if the Circuit Court refuse to render a judgment for the costs according to the mandate, the Supreme Court will grant a rule to show cause why a mandamus should not issue. Jared v. Hill, 1 Blackf. 155.

The bill of exceptions in this case, not being sealed by a majority of the judges present, but by the president alone, a rule on the associate judges to show cause why a mandamus requiring them to seal the bill should not issue, was formerly granted on the motion of the appellants. The rule having been served, and no cause shown, the Court afterwards awarded a peremptory mandamus. The bill was now returned sealed by the judges. Springer et al. v. Peterson et al. 188.

Practice in relation to mandamus :

If an alternative mandamus is defective in form and substance, defendant may move to quash it. Commercial Bank v. Canal Com’rs, 10 Wend. 25. If the opposite party appears to show cause why it should not issue, the relator holds the affirmative. People v. Throop 12 Wend. 183. An alternative mandamus may be made returnable to a special term. People v. N. Y. Com. Pleas., 13 Wend. 649.

At any time after a return to an alternative mandamus, before a peremptory writ is awarded, defendant may show any defect in substance. Commercial Bank v. Canal Com’rs, 10 Wend. 25.

A peremptory mandamus to a Court of Common Pleas is not granted in the first instance, but an alternative mandamus, or rule to show cause. The People v. Judges of Cayuga, 2 Johns. Cas. ; The People v. Judges of Washington, 1 Caines 511.

Where a rule to show cause why a mandamus should not issue, has been obtained, and cause is shown, but not satisfactory, a peremptory mandamus will be granted in the first instance ; but for the purpose of suing out a writ of error, defendant may make up the record pro forma. People v. Throop, 12 Wend. 183.

The first writ of mandamus always concludes with commanding obedience, or cause to be shown to the contrary ; but if a return be made to it, which upon the face of it is insufficient, the Court will grant a peremptory mandamus, and if that be not obeyed, an attachment will issue against the persons disobeying it. If no return be made, the Court will grant an attachment against the persons to whom the mandamus was directed. 2 Wheat. Selwyn 1112.

Where an alternative mandamus to sign a bill of exceptions had been served, but the judges had not made a return to it, the Court said, “ 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 in it was intended for the benefit and convenience of defendants. As the first writ has been regularly served, we may, at our discretion, order a peremptory mandamus." The People v. The Judges &c. of Ulster, 1 Johns. 64.

On an application for a mandamus, where both parties are heard, and there is no dispute about the facts, and the law is with the application, a peremptory mandamus will be granted in the first instance. In such a case, the Court will not put the party to the useless delay of going through with the forms of an alternative mandamus. Ex parte Rogers, 6 Cowen 526.

The form of the writ of mandamus in this case, is like that in 4 Cowen 74. See form in 1 Cowen 22.

On a motion for a peremptory mandamus, the Court do not look at the affidavit on which the alternative writ was founded; their decision is made solely upon the return to the alternative writ. 7 Wend. 474.

A mandamus may be served by delivering a copy thereof, at the same time showing the original. 1 Johns. 64; 4 Cowen 403, 74. In this last case it appeared that the writ was served in vacation, on each of the judges separately, the attorney retaining the original writ.

The Court refused to quash a bill of exceptions signed in vacation, in obedience to a mandamus, although it was signed by the judges when they were not together. 7 Wend. 537.

Decisions in Illinois in relation to mandamus: Street v. County Com’rs. of Gallatin, Breese 25 ; The People v. Forquer, Breese 68 ; The People v. Pearson, 1 Scam. 488, 473 ; The People v. The Auditor, 1 Scam. 537 ; The People v. Fletcher, Post ; The People v. Cloud, Post.

§ 13 of “ An Act further defining the duties of the Attorney General, and for other purposes," provides that, “ The sheriff or coroner of the proper county shall hereafter serve and return all writs and process issuing out of the Supreme and Circuit Courts, unless otherwise provided for by law.” Acts of 1840-1, 37. Whether this section was intended to apply to writs of mandamus, is, perhaps, matter of doubt. Its language, however, seems sufficiently comprehensive.

12 Johns. 414.

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3 Cowen 59.

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3 Binney 273; 1 Sergt. and Rawle 195; 8 Sergt. and Rawle 24.

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) 4 Peters 102.