State v. Stannard

In Banc. Opinion by Mr. Chief Justice McBride. This is a proceeding in mandamus to compel the defendants to perform the duties imposed upon them by law in regard to the calling and holding of elections, and in particular in respect to the special election to be held throughout the State of Oregon on June 4, 1917. It is alleged that the defendants, who are the county commissioners, county judge, clerk, and the sheriff of Curry County, refuse to take steps required by law or to give the notices necessary in respect to such special election, and declare that they will not take the steps required by law to hold such election. To this writ a demurrer is filed stating two grounds: (1) That the relator has not the legal capacity to sue; and (2) that the writ does not state facts sufficient to constitute a cause of action. As to the first ground it may be said, in brief, that by Article Y, Section 10, of the Constitution it is declared that the Governor shall take care that the laws shall be faithfully executed. 1. Where a public official charged with a duty to the whole state, as in this case, refuses to execute the law and to perform his duty in that regard we think the Governor is acting only in obedience to this requirement of the Constitution in appealing to the court to compel that official to perform such legal duty. 2. It is also alleged that this proceeding is premature, and that mandamus will not lie until the time has arrived upon which the posting of notices and other prerequisites to an election are required to be done. Upon this theory the relator would be compelled to wait until — 453 — the last minute of the last hour within which the act might he done, and after that time had expired before he could bring a proceeding to compel the act to be performed. A proceeding to compel performance of an act after the time for such performance has expired would be futile and would result in a condition wherein there would be no adequate remedy against a grave public wrong. The law does not contemplate any such absurdity; and accordingly it has been held that while ordinarily mandamus will not lie to compel the performance of an act until the time for doing the act has arrived, yet where a refusal to perform the act has occurred and where it seems probable that the act will not be performed within the time required mandamus will lie, and a proceeding brought upon the strength of such refusal is not premature: State ex rel. v. Chicago etc. R. Co., 85 Kan. 649 (118 Pac. 872); Attorney General v. City of Boston, 123 Mass. 460; People ex rel. v. Smith, 152 App. Div. 514 (137 N. Y. Supp. 387). The latter case was one of mandamus to compel the board of elections to file certain certificates of nomination, wherein the court says: “The duty devolved upon the board of elections is to file certificates of nomination which are in conformity to the provisions of the last valid statute relating thereto, if any such exists. No express demand to file any particular certificate has been made upon defendants. There has been no express refusal to do so. Granting that defendants’ duty is a public one, and that omission to perform such duty is equivalent to a refusal to perform * * it may be urged that as yet the defendants have not omitted to perform, for the time fixed within which performance may be had has not yet expired. * * But although evidence is lacking of an express refusal to perform a particular act, we think that it may justly be inferred that defendants will refuse to file any certificate except one which shall — 454 — comply with, the requirements of the statute above referred to. # * Where delay in reaching such determination will result in depriving one of an efficient remedy if the determination is erroneous, either the presumption above referred to should prevail, or the person charged with the performance of the duty should seasonably announce his determination respecting his future action in terms admitting of no mistake or misunderstanding.” The case above cited is not so strong as the case at. bar because here the defendants absolutely refused to take steps toward holding the election and declared their intention not to do so. The statutes under which these decisions were rendered are similar to our own and the opinions seem to be based upon sound common sense. The following cases are cited as holding a contrary view, and while some of them upon a cursory examination would appear to be in point yet when thoroughly analyzed none of them are applied to circumstances exactly identical to those in the case at bar. The first case is County Commissioners of Lake County v. State, 24 Fla. 263 (4 South. 795). In this case there was no allegation in the complaint that the commissioners had refused to call the election. It was only alleged that they did not .intend to and would not perform that duty. The court held that this was not a sufficient allegation to call into effect the power of mandamus. The other Florida cases are to the same effect. Lee v. Taylor, 107 Ga. 362 (33 S. E. 408), merely holds that mandamus will not lie to compel a tax collector to pay over tax moneys to an outgoing treasurer so that such treasurer can get a commission. It seems to have no relation whatever to the case at bar. — 455 — In Gormley v. Day, 114 Ill. 185 (28 N. E. 693), there does not appear to have been any refusal on the part of the clerk to post the copies of an ordinance. The court also held on the merits that the petitioner was not entitled to the relief sought. The case is not in point. The case of People v. Quinn, 143 Ill. App. 123, was a mandamus proceeding by the city treasurer to compel the city comptroller to pay over to the relator moneys received by such comptroller from day to day as they were collected. It was held that mandamus does not lie to direct the performance of an act until a default, that the defendant was entitled to a reasonable time within which to pay over the money he held, and that if he held it beyond such time mandamus would lie. In that case it is apparent that no serious mischief would have resulted had the issuance of a writ been delayed until after refusal to comply, while in the case at bar it is plain that delay in the issuance of the writ until the time prescribed by law for the County Court of Curry County to perform its duty would render any proceeding entirely futile and might result in defeating the will of the people of the whole state as to important measures to be submitted at the ensuing special election. The case of State ex rel. Cook v. Houser, 122 Wis. 534 (100 N. W. 964), grew out of a political controversy as to whether the LaFollette or anti-LaFollette delegates should be placed on the ballot as the genuine Republican delegates. The court held that as the time for placing the names of the candidates upon the official ballot had not arrived the proceeding was premature. Nevertheless they went into the .question upon its merits in an opinion which owing to its learned length it is impossible to epitomize here. In — 456 — said case, as in a case in Wisconsin hereafter to be noted, we find the court practically conceding that there may be * ‘ special circumstances ’ ’ in which courts will depart from the general rule that mandamus will not lie to compel the performance of an act until the duty to perform it is due. Eco parte Cutting, 94 U. S. 14 (24 L. Ed. 49), was mandamus to compel the court to allow an appeal. Held, that the petition must show that the petitioner has a clear right to an appeal which has been refused him, and that it was not shown in that particular case. The case is not in point. State ex rel. v. Hunter, 111 Wis. 582 (87 N. W. 485), was a mandamus proceeding to compel a city treasurer to set aside certain moneys as school funds, wherein it was held that the funds had not yet come into his hands and might never come there, and that the application was premature. In the course of the opinion it is said that mandamus will not lie to compel the performance of an act not yet due by a public officer because of a mere threat by him that he will not perform it. The court admits that this is contrary to the ruling in Attorney General v. City of Boston, 123 Mass. 460, and adds very significantly: “Extreme cases may, perhaps, arise demanding the use of mandamus to control the performance of prospective duties, but this is certainly not such a case.” It appears to us that the case at bar is just such an “extreme case.” Here there rests upon the County Court of Curry County an important duty, which by their general demurrer they admit they have been requested to perform and refuse to perform and will not perform; and this, too, in a case where such refusal might defeat the will of the whole people of the state — 457 — in respect to important measures which will come up for their vote at the ensuing election. They say, in effect, that they intend to paralyze the arm of the state and defeat the will of the voters. If this is not an extreme case, it would he difficult to find such. The case of Northwestern Warehouse Co. v. Oregon R. & N. Co., 32 Wash. 218 (73 Pac. 388), was mandamus to compel defendants to build a sidetrack for plaintiff’s warehouse. This is a somewhat complicated case, in which it is announced that mandamus will not lie in anticipation of a supposed omission of duty, but it must appear that there has been an actual default in the performance of a clear legal duty actually due. The court held that the law did not require the defendants to construct the track, and the case went off on entirely different grounds from anything involved in the case at bar. Sights v. Yarnalls, 12 Gratt. (Va.) 292, was mandamus to compel the issuance of a saloon license, in which it was held that mandamus would not lie to compel the council to grant a license until the time had arrived at which the application for such license could come up for consideration. This was evidently a case where a delay would not defeat plaintiff’s right. Spiritual Atheneum Soc. v. Selectmen, etc., 58 Vt. 192 (2 Atl. 747), is a case fully covered by the syllabus, which is as follows: “A petition for a writ of mandamus will not be granted to compel public officers to do an act already beyond their control, nor against their successors in office not yet elected to compel them to perform an act in the future.” It is evident this case is not in point by a thousand miles. — 458 — Thaxton v. Terrell, 99 Tex. 562 (91 S. W. 559). This was mcmdamus to compel the land commissioner to receive an application for state land. It appears that defendant accepted the application after the writ issued subject to certain conditions as to the minerals on the same. It was held that this acceptance avoided the necessity of issuing the writ; that plaintiff had a remedy in equity to compel the issuance of patents without the restrictions imposed by the land commissioner. For that reason the case is not in point. State ex rel. v. Bates, 38 S. C. 326 (17 S. E. 28), was mandamus to compel the state treasurer to transfer certain stocks formerly owned by a deceased person to the relator, who was his legatee, and the court in that case decided that such transfer should not be made until the expiration of one year prescribed by law for creditors to present their claims, and that for this reason the application was premature. It is plain that the transfer might never be made if the claims should consume the stock. The case is not in point. City of Zanesville v. Richards, 5 Ohio St. 589, was mandamus to require the auditor to enter upon the tax list for the years 1855 and 1856 certain taxes ievied for city purposes- for these years. The return showed that the time had passed within which the auditor could place levies upon the tax list for 1855, said list having passed out of his hands, and that the list for 1856 had not yet come into his possession. The case does not disclose that he refused to place the taxes for 1856 on the list when they should come into his possession. The case is easily distinguishable from the one at bar for the reasons already given. — 459 — State ex rel. v. School District, 8 Neb. 93, is a similar case, in which, there is no allegation of a demand or refusal to comply. In State v. Associated Press, 159 Mo. 410 (60 S. W. 91, 81 Am. St. Rep. 368, 51 L. R. A. 151), demand and refusal had' not occurred. The court lay special stress upon this fact. Board of Commissioners, etc. v. Allegany County Commissioners, etc., 20 Md. 449, was mandamus to compel the county commissioners to levy a tax, and it was therein held that there was no presumption that because the commissioners had refused to levy the same kind of a tax in 1861 they would refuse to levy it in 1862, and that the court would not act on such presumption. Sterling v. McMaster, 82 Md. 164 (33 Atl. 461). This was mandamus to compel McMaster, treasurer and collector, to place in the hands of the sheriff bills for the collection of unpaid taxes. The case is somewhat similar in some respects to the case at bar, but it has this distinguishing feature: In that case there was ample time left after the period fixed by law for the treasurer to turn over the bills in which mandamus might be brought and the alleged duty enforced. A failure to issue the writ therefor would not work any serious injury, and under these circumstances the court held that the writ was premature. These are practically all the cases cited outside of our own state, and in many of them it is laid down as a general rule that mandamus will not issue to compel the performance of a duty before the time for such performance has arrived. This rule in some form or other has been “parrotted” down from court to court and from judge to judge without any particular reason being given for it or any attempt to distin — 460 — guish between those cases where a denial of the writ will work no serious or irreparable injury and those “extreme cases,” to use the words of the Michigan supreme court, where such denial would work great injustice or public injury or prevent the exercise of the constitutional right of all citizens of the state to a voice in the elections. The rule as a general one is good, but as heretofore shown there are well-defined exceptions to it, and this is one of them. The courts will not chop technicalities when their aid is asked to compel the performance by a public officer of a duty which he owes to the citizenry of the whole state, but where no other remedy presents itself will exercise their constitutional authority to compel by mandamus the performance of such duty. The demurrer is overruled. Mr. Justice Me Cam ant took no part in the consideration of this case. Mr. Justice Burnett delivered the following dissenting opinion: On petition, of the relator an alternative writ of mandamus issued out of this court reciting the official character of the Governor of the state and of the attorney general and the fact that the defendants are officers of Curry County. It is also set forth that by chapter 422 of the Laws of 1917, now in effect, a special election is required to be held throughout the state June 4, 1917, at which sundry legislative enactments and proposed amendments to the Constitution shall be submitted to the people for their approval or rejection. The essential charging part of the writ reads thus: “That notwithstanding the provisions of said chapter 422, Laws of 1917, and the requirements of the — 461 — other laws of the state of Oregon, the defendants herein and each of them have refused and do now refuse to perform the duties imposed upon them by law with respect to giving notice of and holding elections with reference to the election provided for in said chapter 422, within Curry County, or to do or perform any other duty or thing with respect to preparing for, giving notice of, or holding any election within said Curry County, Oregon, on the fourth day of June, 1917, or to canvass or abstract and record the returns of said or any election to be held on said date, or to transmit the certificate thereof to the secretary of state, or to do any other act or thing in connection therewith, and threaten and declare that they will not do so, and, unless commanded so to do by order of this honorable court will not perform such duties aforesaid. * * ” A demurrer to the writ having been overruled pro forma, the defendants have answered to the effect that Curry County has no funds available for the expense of the election it not having been included in the annual budget; further, that the county is already indebted in at least the sum of $5,000 and that the additional expenditure involved will be in excess of the constitutional limit; and lastly, that in order to meet the cost of the election the County Court will be compelled to levy taxes in excess of the 6% limit prescribed by the constitutional amendment adopted at the November election held in 1916. The initial act required in the matters involved is for the county clerk to issue notice of election not less than ten days prior to the day appointed for holding the same. This action is not indispensably necessary of performance in any event until at least May 24, 1917, a date yet in the future. The quoted excerpt from the writ, upon which the relator bases his claim, contains only conclusions of law. It is in effect noth — 462 — ing more than the expression of his prediction that the defendants will not meet his views of the law in their action in the premises. Mr. Chief Justice Moore, writing in State ex rel. v. Williams, 45 Or. 314, 330 (77 Pac. 965, 67 L. R. A. 166), said: “The writs having stated that the municipal judge neglected to issue bench warrants ‘as required bylaw, ’ the phrase quoted is only a legal conclusion, and not the averment of a material fact, stated as the foundation of an enforceable right.” This doctrine is well supported by many authorities both before and since then holding that such statements do not present any issue for consideration. Moreover, paraphrasing the statement of the writ, the defendants have a right to “refuse and to now refuse to perform the duties imposed upon them by law” for the very good reason that the time for their performance has not yet arrived. “A relator is not entitled to the writ unless he can show a legal duty then due at the hands of the respondent; and until the time arrives when the duty should be performed, no threats or predetermination not to perform it can take the place of such default. The law does not contemplate such a degree of diligence as the performance of a duty not yet due. The general rule is that the writ will not be granted in anticipation of a supposed omission of duty, however strong the presumption may be that the person sought to be coerced by the writ will refuse performance at the proper time. An important reason for refusing the writ in such cases is, that until the duty is due, no practical question can be presented to the court, but simply a supposed case.” 2 Spelling, Extraordinary Relief, § 1385. Again, we find in section 12 of High on Extraordinary Legal Remedies (3 ed.), the following: “Mandamus is never granted in anticipation of a supposed omission of duty, however strong the pre — 463 — sumption may be that tbe persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is therefore incumbent upon the relator to show an actual omission on the part of the respondent to perform the required act; and since there can be no such omission before the time has arrived for the performance of the duty, the writ will not issue before that time. In other words, the relator must show that the respondent is actually in default in the performance of a legal duty then due at his hands, and no threats or predetermination can take the place of such default before the time arrives when the duty should be performed; nor does the law contemplate such a deg’ree of diligence as the performance of a duty not yet due. ” This court itself has spoken on the same subject in State v. Bryan, 26 Or. 502, 507 (38 Pac. 618), where Mr. Justice Wolverton writing, uses this language: “It is a just presumption that all public officers will faithfully discharge the functions of their respective offices, and observe all the duties enjoined upon them by law, and it would be a work of supererogation for the courts by mandamus or other process to command them to perform their duties in futuro as they are by law directed. Courts will not assume or exercise supervisory control over public officers and functionaries, whether state, county, or municipal, nor will they attempt to control their acts, or command them to act, except in cases where there has been a plain violation of official and public duty which the law specially enjoins upon them, and it is made to appear that some private individual or the public has a legal right or title to the due performance of such duty, and that there exists no other plain, speedy, or adequate remedy in the ordinary course of law.” The following precedents are to the same effect: U. S. v. Bowen, 6 D. C. 196; County Commrs. of Lake Co. v. State, 24 Fla. 263 (4 South. 795); Ex parte Ivey, 26 Fla. 537 (8 South. 427); Lee v. Taylor, 107 — 464 — Ga. 362 (33 S. E. 408); Gormley v. Day, 114 Ill. 185 (28 N. E. 693); Chicago etc. R. R. Co. v. Olmstead, 46 Iowa, 316; State v. Carney, 3 Kan. 88; Sterling v. McMaster, 82 Md. 164 (33 Atl. 461); Board of Commrs. etc. v. Alleghaney Co. Commrs., 20 Md. 449; State v. Associated Press, 159 Mo. 410 (60 S. W. 91, 81 Am. St. Rep. 368, 51 L. R. A. 151); State v. School Dist., 8 Neb. 92; Hardin v. Guthrie, 26 Nev. 246 (66 Pac. 744); State v. Noyes, 25 Nev. 31 (56 Pac, 946); Zanesville v. Richards, 5 Ohio St. 589; State v. Bates, 38 S. C. 326 (17 S. E. 28); Thaxton v. Terrell, 99 Tex. 562 (91 S. W. 559); Spiritual Atheneum Soc. v. Selectmen, etc., 58 Vt. 192 (2 Atl. 747); Sights v. Yarnalls, 12 Gratt. (Ya.) 292; Northwestern Warehouse Co. v. Oregon R. & N. Co., 32 Wash. 218 (73 Pac. 388); State v. Hunter, 111 Wis. 582 (87 N. W. 485); Ex parte Cutting, 94 U. S. 14 (24 L. Ed. 49); State v. Houser, 122 Wis. 534 (100 N. W. 964); People v. Quinn, 143 Ill. App. 123; Missouri etc. R. Co. v. Thompson, 55 Tex. Civ. 12 (118 S. W. 618); State v. Adcock, 225 Mo. 335 (124 S. W. 1100); Pierce v. Executive Council, 165 Iowa, 465 (146 N. W. 85); Scott v. Singleton, 171 Ky. 117, (188 S. W. 302). A leading case sometimes cited in opposition to this doctrine is that of Attorney General v. City of Boston, 123 Mass. 460, where the city council, authorized by statute to maintain a ferry at rates to be prescribed, ordered that it be free of ferriage after a certain future day, and the court, on application made before that time arrived, compelled the continued collection of toll by a writ of mandamus. Eightly considered this case is not variant in principle from those already cited, for the duty to collect toll was imperative at and before the issuance of the writ and it yras what the court sought to enforce by its precept. — 465 — Besides the statute of the state of Massachusetts governing the matter gives jurisdiction to its courts far more extensive than ours on the subject of mandamus. The law of that state, as quoted in the opinion is this: “The court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein, where no other remedy is expressly provided, and may issue writs of error, certiorari, mandamus, prohibition, quo warranto, and all other writs and processes to courts of inferior jurisdiction, corporations and individuals, necessary to the furtherance of justice and the regular execution of the laws”: Gen. Stats., c. 112, § 3. The procedure there contemplates that mandamus may be used as a preventive remedy. This case has been cited many times as authority for allowing mandamus at the suit of some private person or of the attorney general to enforce a general public duty, but rarely, if ever, in support of the proposition that the writ will lie to enforce a duty not due when it was issued. In State ex rel. v. Chicago B. & Q. R. R. Co., 85 Kan. 649 (118 Pac. 872), this procedure was employed to compel two railroads to install connections as required by an order of the railroad commission directing the work to be done within ninety days. The precept was issued three days after the order was made. The defendants defended on the merits pointing out, among other things, that it would be an unreasonable burden, entailing more expense than the revenue derived therefrom would liquidate. By some means or other the decision was delayed until after the expiration of the ninety days. Under those circumstances the court made the rule absolute, but — 466 — the same judge who penned the majority opinion dissented from the doctrine thereof on this point, saying: “The duty and the time were coextensive. It was held in State v. Carney, 3 Kan. 88, that ‘no previous threat or predetermination not to perform a legal duty can amount to a fault or omission, even though the showing he sufficient to convince the court that the respondents will omit to perform their duty.’ This was followed in State ex rel. Reynolds v. Barker, 4 Kan. 435, in Dobbs v. Stauffer, 24 Kan. 127, and quoted with approval in Rosenthal v. State Board of Canvassers, 50 Kan. 129 (32 Pac. 129, 19 L. R. A. 157), and is in accord with the mandatory requirement of the statute.. A present omission to do a future duty is a legal impossibility. The first time when it could be definitely known that the order had been disobeyed was nearly ninety days in the future, and I think an action before that time must have been premature. ” In Nevada Tax Commission v. Campbell, 36 Nev. 319 (135 Pac. 609), the court gave a moot opinion on the duty of county officers to furnish tax rolls by a certain future time, but dismissed the proceeding with leave to apply again if the plaintiff should be so advised. It was said explicitly, though, that the writ would not be granted in anticipation of a refusal to perform the duty when the time for it should come. State v. Metcalf, 18 S. D. 393 (100 N. W. 923, 67 L. R. A. 331), was a case where the defendant officer was required by alternative mandamus to place the names of certain candidates on the official ballot. Without citing authority in support of its opinion the court said: “Having made his demand, concerning which no doubt exists in this case, if the auditor did not express a willingness to comply therewith, it was proper to institute this proceeding, when, if defendant intended to comply with the demand, he might have disclosed such intention and have avoided any judgment for disbursements. But, having answered and contested the rela — 467 — tor’s right, he cannot be heard to say that he would or might have complied with the relator’s demand.” A similar case, People v. Smith, 152 App. Div. 514 (137 N. Y. Supp. 387), cited in support of the instant writ, was modified on appeal in 206 N. Y. 231, 241 (99 N. E. 568), the court saying that it should not be considered as a precedent and that it should be limited to.the very case itself. Later, in People v. Britt, 206 N. Y. 246, 249 (99 N. E. 573), the case was further limited, and speaking of the situation the court says: “The remedy for this incongruous result is with the legislature.” These few cases are opposed to the great weight of authority and are sporadic instances of where courts have used their power in meddling with mere political questions. It is required by our statute that the writ shall ‘ ' state concisely the facts, according to the petition, showing the obligation of the defendant to perform the act, and his omission to perform it”: Section 616, L. O. L. There can be no present' omission to perform an act in the future. The writ is not to be confounded with injunction. Neither can it be made to perform the office of a bill of guia timet. We are not required to balance the relator’s fears for the future against the presumption that the defendant officers will regularly perform their duties at the proper time. Mandamus ought to be used sparingly and only in clear cases, and this court ought not hastily to use its original jurisdiction to clarify a mere political emergency. No refusal to perform any official act, presently required, or past due, is imputed to any of the defendants, and if we regard the authority of State ex rel. Booth v. Bryan, already decided by this court, as well as the great weight of reason and precedent, the writ should be dismissed..