Parrish v. Reed

¶1(concurring). — I fully concur in what has been said by the chief justice in deciding this case, and I do not desire to add anything as to the merits of the controversy j but, in view of what was said by the attorneys for the petitioner at the time of the application for the writ, to the effect that they supposed the alternative writ would issue almost as a matter of course, I desire to say a word as to the course and practice of this court in matters of this kind. ' The writ of mandate is not a writ of right of as high an order as a writ of habeas corpus. The latter writ is, of course, of the very highest right, and is regarded of such importance that it is secured and protected by the constitutions of nearly all the states. Yet even the writ of habeas corpus does not issue as a matter of course. The facts alleged in the petition therefor must be such that, if *496true, they would, in the opinion of the court, warrant the discharge of the petitioner. The facts stated in the petition are taken as true, and the court determines therefrom whether or not they would warrant a discharge of the petitioner, and if, in its opinion, they would not do so, then the courts do not hesitate to refuse even this writ of highest right. See Church on Habeas Corpus, § 99. If this is true as to the’writ of habeas co?pus, it follows that the courts will scrutinize somewhat carefully the allegations of the petition for a writ of mandate, which is not a writ of such high right, and will only grant the alternative writ when, in its view of the law, the facts stated in the petition, if uncontradicted, will authorize the issue of the peremptory writ. Such has been the practice of the courts of nearly all the states of this union. The practice of this court has been to allow counsel for the petitioner, at the tiiue he makes application for the alternative writ, to make such brief suggestions as he may think proper, and with such suggestions the court takes the papers, and if, in its opinion, a prima fade case is established, orders the issue of the alternative writ; and if, in its opinion, such petition does not set out facts constituting a prima faeie case for the issue of the mandatory writ, it denies the application for the alternative writ, and dismisses the petition. In this case, however, the court realized the great importance of the questions involved, and, although upon an inspection of the papers it was satisfied that a prima fade case was not made out, departed from its usual custom, and notified counsel for the petitioner that they might present arguments in support of the petition, which was done; and able counsel, at such length as they saw fit, argued as to the sufficiency of the petition to warrant the issuing of the writ. After such argument, the court being still of the opinion that the petition did not state facts warranting the issue of the writ, could not do otherwise than refuse it. *497It cannot be held that the legislature intended, in providing for writs of mandate, that any person, simply by coming into court and filing a petition without any merit therein, could properly put a public officer to the expense of employing counsel and making a return to an alternative writ issued upon such insufficient petition. Besides, in this case the reasons why the auditor had refused to do the acts sought to be compelled by the petitioner fully appeared in the petition, and, in the opinion of this court, were warranted by the law of the ease. This being so, there was but one duty for the court to perform, and that was to sustain the auditor in his refusal to do said acts.