Wadhams & Co. v. San Francisco & PortLand S. S. Co.

156 P. 425, 80 Or. 64, 1916 Ore. LEXIS 21

• Court: Oregon Supreme Court
• Decided: April 4, 1916
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. Treating of the scope of the writ of mandamus, Section 613, L. O. L., reads thus:

“It may be issued to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; but though the writ may require such court, corporation, board, officer, or person to exercise its or his judgment, or proceed to the discharge of any of its or his functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law.”

The essence of the writ is that the defendant has in its possession in Multnomah County, Oregon, certain personal property to the custody of which plaintiff is entitled. The petitioner argues that replevin would affect only the instant shipment, and that it would be compelled to institute a like proceeding to recover each succeeding invoice, resulting in a multiplicity of actions. The same argument applies equally to mandamus, and we cannot admit that granting the writ as desired in this case would necessarily work out delivery of any future consignment of liquor. Although mandamus was held to be a suitable remedy in Haugen v. Albina Light & Water Co., 21 Or. 411 (28 Pac. 244, 14 L. R. A. 424), and Mackin v. Portland Gas Co., 38 Or. 120 (61 Pac. 134, 62 Pac. 20, 49 L. R. A. 596), to compel a corporation to perform its functions in relation to an individual, those cases are not controlling here. They involved the right of the plaintiff to demand that water and gas be furnished to him on equal terms with other consumers by corporations chartered for the purpose of supplying the people with those things. Not having either the title or the right to the possession of any particular part of the water or gas segregated from a larger mass, neither trover nor replevin would lie at the suit of the plaintiffs there; but here the petitioner desires the possession of certain chattels separated from all others to which it claims title and right of immediate possession. In such instances the ordinary action at law in replevin supplemented by the provisions of our Code, L. O. L., Sections 283 to 294, both inclusive, pointing out how immediate delivery may be had, affords a plain, speedy and adequate remedy at law for the relief sought to be accomplished here by the writ of mandamus. The court would exceed its authority and pervert the office of the extraordinary remedy of mandamus if it should attempt to make the writ peremptory.

3. The Attorney General, as a friend of the court, submitted an elaborate brief against the writ based upon the provisions of Chapter 141 of the Laws of 1915, regulating the importing of intoxicating liquors into the state. In view of the plain remedy by replevin we are not disposed to make this proceeding between private parties an excuse to construe the new legislation upon the subject of intoxicating liquors. To do .so would be to determine the validity of the statute upon what is really an ex parte showing in a proceeding where the enactment is not necessarily involved. The demurrer to the writ is sustained.

Demurrer Sustained.

Mr. Justice Eakin absent.