Farrell v. King

Pardee, J. The respondent contends that the writ of mandamus should not have been issued in this case for the reason that the city of Bridgeport and William Anderson are not made parties l’espondent to the petition, claiming that the effect of it would be to interpolate into the records of the city a valid contract where none now exists and to dismiss Anderson from an office and place Farrell therein. For the purposes of this case it is a sufficiently comprehensive and accurate definition of the office of the writ of mandamus, to say that it lies to compel the respondent King, a public ministerial officer, to correct an inaccurate record of the proceedings of the court of common council of the city of Bridgeport, made by him in his official capacity, upon the petition of a person directly and specially interested in having the record speak the truth. The petition in this case asks one thing only, namely, that the respondent may be compelled to do that which the law specially enjoins upon him as a duty resulting from his office, and concerning which he has no discretionary power. The peremptory writ commands only that he shall do that act; it does not assume to determine, it does not even concern itself with, any questions as to rights under contracts as between the city of Bridgeport and the petitioner; it does not undertake to look into the future and declare who will be compelled' to pay or who will be entitled to receive money after the record is corrected. Although the amended record which the writ commands King to make may furnish thereafter important and even indispensable aid to the petitioner if he shall determine to resort to legal proceedings to establish the relation of debtor and creditor between the city and himself, that relation, is-not established by this mandate. [452] Again, the petitioner does not ask to be admitted to an office; he does not ask that Anderson shall be ejected from one. The writ does not, and does not assume the power to effect either of these objects; it is obeyed and satisfied when the record is made truthful; and although, this being done, the petitioner may derive aid therefrom in support of a quo warranto, if he should thereafter choose to perfect any inchoate right which he may have to actual possession and enjoyment of an office now exercised by another, the removal of Anderson is not effected by this writ. This possibility that the petitioner can use the amended . record as a piece of evidence in future proceedings against the city or against Anderson, neither compels him to make them, nor entitles them to be made, respondents in a petition which asks only that a public officer may be ordered to perform a plain requirement of law; to perform an act pertaining to his office, which it was his duty to perform irrespective of any question of right between the petitioner and the city or Anderson, and in which the single issue made and determined is as to the truth or untruth of the record as it now stands. In Ellis v. County Commissioners of Bristol, 2 Gray, 370, jthe respondents were compelled by mandamus to certify that the petitioner had a majority of votes for the office of county treasurer, although another person had been by them declared elected to and was in possession of the same office, the latter not being a respondent. ■ In Roberts v. Rives, 27 Illinois, 242, the respondent, a clerk of a county court, was compelled to certify to the election of the petitioner to the office of justice of the peace, although he had before given a certificate of election to another who was in possession of the office; the latter not being a respondent. People v. Matteson, 17 Illinois, 167; People v. Hilliard, 29 id., 419; Brown v. O'Brien, 2 Indiana, 423; Rex v. Harris, 3 Burrow, 1421. In Strong's case, Kirby, 345, a town clerk was ordered to record a deed which had remained in his hands unrecorded for the period of one year. Me was sole respondent; and [453] yet it is possible to conceive that the rights of other persons may have been affected by the action of the court. In Smith v. Moore, 38 Conn., 105, the Superior Court ordered the respondent, a justice of the peace, to correct his record of a judgment rendered by him upon the petition of one party thereto, the other not being a respondent; and yet the amended record might directly affect the pecuniary interests of the latter. It is not alleged in the petition or in the answer that Anderson was charged with any duty in connection with the record in question; nor that he had any right to make it in the first instance, or to add to, or take from, or change it afterwards. He does not in any sense share with King the official burden of keeping true records; and if the petitioner had originally made him respondent, upon the finding of the court below, it would have been an act of judicial tyranny to subject him to a peremptory' order to correct an error for which he is not responsible. It is a fundamental principle that the peremptory writ should run singly to the person whose duty it is to perform the act required. When the purpose is to secure the performance of an official duty by a public officer it should be addressed to him in his official capacity; and if the application for the mandamus is against two jointly, and it cannot be sustained as to one of them, it necessarily fails as to both. People v. Yates, 40 Illinois, 126. Inasmuch as upon the finding in this case no mandamus could be issued against Anderson jointly with King, for the reason suggested above, under this rule of law, this petition must always fail whenever Anderson is made a party respondent, either originally by the petitioner or subsequently upon his own motion, and similar suggestions may be made in reference to the corporation of Bridgeport. What we have said as to the nature of the issue raised • and determined in this proceeding disposes of the objection to the jurisdiction of the Court of Common Pleas. There is no error in the judgment of the court below. In this opinion the other judges concurred.