Morgenthaler v. Crites

Beer, J. We think the fair construction of this section is, that if the writ has been allowed by the court, the defendant must answer, because in that case the court has passed upon the sufficiency of the petition, but where a judge allows the writ, the court has not passed upon the sufficiency of the pleading. It makes no difference that more than one judge signed the order granting the writ; such signing does not make the order granting the writ the act of the court. In this case the writ was not allowed by the court. We hold, therefore, that the demurrer searches the whole record. 2 N. Y. 490; 10 Wend. 26; 23 Wisc. 427; 47 Wisc. 670. A majority of the court are of the opinion that the relator, by his petition, is asking that defendant be compelled to act under the law of 1886. He says he furnished evidence covering-each of the years from 1889, back to 1884, covering a term of five years. He prays that the defendant be required to correct and add to the tax list not exceeding five years running back from 1889. The court in the alternative writ commanded the defendant to go back from 1889, not exceeding five years. It is a well settled principle that the peremptory writ must conform strictly to the alternative mandamus — -the alternative writ commands the defendant to do a certain act or show cause why he hath not done so. If the answer is insufficient, the order is, “ let the writ be peremptory.” It is not that the defendant be commanded to do some other act than that commanded by the alternative writ. High on Extraordinary Legal Remedies, section 548. In its form and general features, the peremptory mandamus differs only from the alternative writ in the omission of -the alternative clause, submitting therefor a peremptory and absolute command, against which no cause can be shown. And it is a well settled principle that the peremptory writ must conform strictly to the alternative mandamus, being [488] necessarily limited as to form by the terms- of the alternative writ. In other words, the courts are powerless to award the peremptory writ of mandamus in any other form than that fixed by the alternative writ. It follows, therefore, that if the alternative writ commands the doing of several things, it is incumbent upon the relator, in order to entitle himself to the peremptory writ, to show that he is entitled to the performance of all the things specified, and if he fails in any substantial part in establishing his title to any of the things sought, there can he no peremptory mandamus. And the proper order of the court upon the hearing of the'application for the peremptory writ has been granted, is, “ let the writ be peremptory,” or “ peremptory writ refused.” To the same effect are Short on Mandamus and Moses on Mandamus. See also High Ex. Rem., sec. 450; 1 Iowa, 179, 473; 35 N. J. L. 196, 269; 38 N. J. L. 259. The act of 1886 goes back for five years, one year more than the act of 1878. It adds a penalty of fifty per cent, for each year and requires the taxes to be assessed upon the added property and penalty. Because of the added penalty, if the act of 1886 is to have a retrospective operation, then under the decision of Judge Story in Society v. Wheeler, 2 Gall. 139; Sturgis v. Carter, 114 U. S. 114, and Rairden v. Holden, 15 Ohio St. 207, it is unconstitutional, and can not be enforced. If it is to have a prospective operation only, the court exceeded its powers in commanding the defendant to go back from 1889 not exceeding five years, and a peremptory writ Commanding the same thing to be done would be in excees of the power of the court. However reprehensible it may be in one to refuse to-list his property for taxation, it is equally reprehensible in a court to undertake the exercise of a power not warranted by the law. If the act of 1887 is unconstitutional, and if the repealing clause contained in section 2 must fail with it, and for that reason the act of 1878 stands revived, or to state it more accurately, was never repealed, still the peremptory writ can not issue under that act, for, as we have stated, the application for the writ was under the act of 1886, and the writ issued under the act of 1886. It commands the tax lists to be corrected from [489] 1889 back not exceeding five years, while the act of 1878 would only authorize the correction of returns for four years. So that, whether the act of 1886 is unconstitutional or not, whether it is to have a prospective operation or not¡ or whether by reason of its unconstitutionality the act of 1878 is still in force, the result, so far as the case under consideration is concerned, is precisely the same. The peremptory writ can not be ordered. A majority of the court only concur in the conclusion arrived at. They do not agree as to the. manner of arriving at the conclusion. Judge Moore dissents, and is of the opinion that the peremptory writ should issue. Peremptory writ refused; defendant to go hence without 'day and recover his costs. Seney, J. — I agrees ‘with the conclusion reached by the majority of the court, and go further. I claim that the statute of 1886 is unconstitutional, that it is retrospective in its operation, and that being unconstitutional under the decisions of the state, the legislature would not have enacted the repealing clause of the statute of 1878, so the first section being unconstitutional, being retrospective in its operation, and casting additional burdens on parties that did not exist prior to its enactment, the whole act falls; the whole act falling, it leaves in force the statute of 1878; the statute of 1878 being in full force, and the alternative writ in this case being issued under the statute of 1886, and going back for a period of five years, and the statute of 1878 only permitting the taxes to be charged up for a period of four years, that the peremptory writ in this case should be refused.