State ex rel. Pfister v. Mayor of Manitowoc

Cassoday, J. A peremptory writ of' mandamus is an extraordinary remedy to coerce the performance of a preexisting duty, or clear and specific legal right, and hence should be granted only where the duty or right is clearly established, [427] and the facts upon which it is based are undisputed. That such is the law would seem to be well established by the decisions of this and other courts. In State ex rel. Lord v. Washington Co., 2 Pinney, 555, it was held that the writ “ only issues in cases where there is a specific legal right to be enforced, or where there is a positive duty to be, and which can be, performed, and where there is no other specific legal remedy.” State ex rel. Kane v. Larrabee, 3 Pinney, 166, was an alternative writ of mandamus to compel the judge to vacate and strike from an order or decree words which had been added by way of amendment after the entry; and Judge Whiton said: “All the authorities concur in sustaining the position that a mandamus will not be granted to a relator for his relief, except where he has a specific legal right to be affected by it.” Page 168. In The State ex rel. Carpenter v. Hastings, 10 Wis., 518, it was held that “ a motion to quash an alternative writ of mandamus will be granted unless the relation shows a clear right to the writ.” In The State ex rel. Spaulding v. Elwood, 11 Wis., 17, it was held that an application for an alternative writ of mandamus “must show clearly and affirmatively that therelatpris entitled to the right claimed.” In Schend v. Aid Society, 49 Wis., 237, it was held that,' “ in the circuit courts a rule to show canse why a peremptory mandamus should not issue should be allowed to supersede the alternative writ only in cases where, after a hearing upon the rule, no issue of fact appears to be involved.” In giving the opinion of the conrt, Lyok, J., said: “If the cause shown against the issuing of the writ presents an issue of fact on a material averment made in support of the order, we think the court should not try such issue of fact on affidavits, but should award an alternative mandamus, to the end that after return thereto the issue may be duly and regularly tried in the man [428] ner prescribed by statute and tbe rules of court. ... If the respondent is heard in opposition to the application, and there is no dispute about the facts, the application being well founded in law, a peremptory mandamus may be granted in the first instance.” Page 241. The same rules prevail in other states. The Free Press Association v. Nichols, 45 Vt., 7; The People v. Chenango Co., 11 N. Y., 563; Commonwealth v. Allegheny, 37 Pa. St., 277; The People v. The Mayor of New York, 25 Wend., 680; The People v. The Canal Board, 13 Barb., 442; The People v. Thompson, 25 Barb., 73; Reeside v. Walker, 11 How., 272; The People v. Oldtown, 88 Ill., 202; 2 Dillon, Mun. Corp., § 830 (667). The federal courts go so far as to hold that the claim must be put into judgment before a mandamus will be allowed to enforce the levy and collection of a tax for the payment of the claim. Heine v. The Levee Com’rs, 19 Wall., 655; Bath Co. v. Amy, 13 Wall., 244; Walkley v. Muscatine, 6 Wall., 481. But state courts have, generally, so far relaxed the rule as to hold that where there is a clear dutty to levy and_ collect a special tax to pay a special debt or class of debts, and where the genuineness of the debt is not questioned, and no valid defense is alleged or claimed, the levy and collection may be enforced by mandamus without a prior judgment at law. Commonwealth v. Pittsburgh, 34 Pa. St., 496; Commonwealth v. Allegheny, 37 Pa. St., 277; Commonwealth v. Allegheny, 32 Pa. St., 218; Maddox v. Graham, 2 Met. (Ky.), 56; The State of Ohio v. Clinton Co., 6 Ohio St., 280; 2 Dillon, Mun. Corp., § 853 (6S8). But here the validity of the bonds was controverted. The alleged change of name, as well as other facts, was denied, and consolidation with another company and change of route, between the time of. voting and issuing of the bonds, and other facts, were set up by way of defense. In Nœsen v. Port Washington, 37 Wis., 168, it was held that this alleged change in the character of the enterprise contem [429] plated by the company was fundamental, and such as to release the non-assenting stock subscribers from the payment of their subscriptions, and that tax-pavers of the town could restrain the town, its officers and the railroad company from issuing bonds in payment of such subscription. It is claimed, upon the one hand, that the M., M. & G. B. B. B. Co. was not authorized to consolidate, as alleged, and on the other hand, that, as the A. & N. L. R. R. Co. had power, by statute, to consolidate with any other, such power included the power of the first-named company to so unite, although not named in the statute; and 67 N. Y., 371, is cited in support of the position. It is also claimed upon the part of the city that, as the alleged change of name was denied, the court was bound to assume on the hearing that the aid was voted for one company, and subsequently the bonds were issued by the mayor and clerk to another and entirely different company, and without any vote authorizing the same. It is not our purpose to consider these questions upon this appeal. We refer to them merely to show that the right insisted upon is based upon disputed material facts, and hence was not clearly established. Since the validity of the bonds was thus controverted, and in view of the well-settled practice of the courts, as above indicated, we think the writ should have been withheld until the plaintiff had established their validity in the usual method, by action at law. It follows that dhe judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the proceedings, but without prejudice. By the Court.— So ordered.