Opinion
(June Term, 1840.)
1. Section 63 of chapter 31, Revised Statutes, which prescribes the time when writs and other civil process shall issue and be made returnable, is inapplicable to, and was not intended to have any operation upon, the prerogative writ of mandamus. Such a writ can only issue when a necessity for it is shown; and from its very nature it should issue, be made returnable and be returned accordingly as the necessity that calls for it may require.
2. No general rules of practice in relation to the issuing and return of writs of mandamus have yet been prescribed in this State; and it is therefore in each case the province of the court by which the writ may be awarded to fix the day on which it should be made returnable.
3. The case set forth in the suit for mandamus must show there is no other specific legal remedy, because the court will not, ordinarily at least, interfere by mandamus when there is another specific legal remedy. But it is not proper, much less necessary, that the writ should declare that there is no other remedy for the mischief which it commands to be removed.
4. The writ of mandamus should be directed to all the persons whose duty it is to perform the act required, though some of them may be applicants for the writ. And where three of seven commissioners filed a petition for a mandamus to compel the other four in concurrence with them to perform a specific duty, and an alternative mandamus was issued, directed to the four only, which was returned with an admission of service by the three petitioners, and an expression of their readiness to perform the duty, whereupon a peremptory mandamus was ordered: it was Held, that the order for the peremptory mandamus was against all, and that the proceedings were sufficient.
5. When an alternative mandamus is issued, and no answer or return of cause is made, the court may be moved for an attachment against the person to whom it has been directed; and in such a motion the attachment ought to be refused, unless there has been a personal service of the writ, or such a service as the court by special order under the circumstances of the case may direct. But the court, instead of proceeding by attachment for contempt because cause is not shown, may direct a peremptory mandamus to issue, simply regarding the alternative mandamus as in the nature of a rule to show cause why an absolute mandamus should not issue; and to justify this course, personal service of the rule, or the writ in nature of a rule, is not necessary; but service by leaving a copy at the dwelling-house is sufficient, if the court deem it reasonable; and of this the court which issues the rule, or writ in nature of a rule, is the exclusive judge, and its judgment upon that matter cannot be revised upon appeal.
THE dispute respecting the seat of justice of HENDERSON, (130) which was before the Court at the last term, S. v. King, 20 N.C. 661, was in this case again presented for consideration. After dismission of the mandamus, which had been directed to the commissioners appointed by the county court to lay off and sell the lots in the town supposed to have been established, a petition was filed in the Superior Court of BUNCOMBE, on the last circuit, before Hall, J., by Benjamin Wilson, Epaphroditus Hightower, and John Clayton, three of the seven commissioners authorized and directed by the act of Assembly to procure, by purchase or donation, a proper tract of land for the county town, setting forth that the commissioners whose duty it was to determine the site of the town had fixed it on Shaw's Creek, near Hugh Johnston's house; that the petitioners were anxious to proceed to the performance of the duty enjoined by the law on the commissioners of the second part, the procuring, by purchase or donation, for the use of the county, of a tract of land at the determined site; but that Robert Jones, Asa Edney, John Miller, and Richard Allen, the other four of these commissioners, without whose cooperation the petitioners could not act, utterly refused to join with the petitioners in the performance of this duty; and praying that a mandamus might be directed to the commissioners of the second part, commanding them to perform the duty required by the said act; and that the said Robert Jones, Asa Edney, John Miller, and Richard Allen might be required, in connection with the petitioners, the commissioners of the second part, forthwith to proceed to purchase or receive, by donation, and take the deed for said land, as by the act is directed. Upon this petition, verified by affidavit, an order was made on Tuesday, the second day of the term, that notice should issue "to the defendants, Jones and others," returnable on Saturday next, to show cause why a mandamus should not issue against them, compelling them to perform the duties in said petition mentioned. A notice of this order thereupon issued, addressed to all the commissioners, returnable as aforesaid. The petitioners appeared and acknowledged service of the notice; and the sheriff (131) made return that he had executed the same by leaving a copy thereof at the dwelling-houses of John Miller, Robert Jones, and Richard Allen, and by delivering a copy to Asa Edney. It appears that on the return day of the rule or notice, an objection was made, but the record does not show by whom, that personal service of the rule or notice ought to have been given. No cause was shown against the mandamus prayed for; and the court thereupon ordered that an alternative mandamus should issue, returnable on the Saturday following, the last day of the term. A writ thereupon issued, addressed to Edney, Allen, Miller, and Jones, reciting the substance of the acts of Assembly in relation to the seat of justice of the county of Henderson; the doings of the commissioners of the first part, determining the site of it; the duty of the seven commissioners, all of whom were named, to procure, by donation or purchase, a proper tract of land therefor; the allegation of three of the commissioners that they had always been willing to discharge this duty, and had requested the other four to join with them in so doing, and that these had refused to comply with said request; and commanding the said Edney, Allen, Jones, and Miller to join with Wilson, Hightower, and Clayton in the performance of the duty enjoined by the act, or signify cause to the contrary thereof. The sheriff returned this writ, with an indorsation that he had "executed" the same "by tacking a copy of it on the door of John Miller's house, by leaving a copy at Asa Edney's dwelling-house, Robert Jones' dwelling-house, and the dwelling-house of Richard Allen"; and John Clayton, Benjamin Wilson, and E. Hightower indorsed thereon "that they admit service of the alternative mandamus, and answer that they are willing to proceed without further notice." No answer to the alternative mandamus was made, nor cause shown against the peremptory mandamus, by any of the commissioners; but Miller, one of them, appeared in court and took several exceptions, and made sundry objections to the proceedings, which appear of record. He moved to supersede the mandamus which had issued, because it should have been issued ten days before the return day — or because there should have been at least eight (instead of seven) days between the teste and the (132) return of the writ; because the writ did not state enough to support it; for "it omitted to set forth that there was no other remedy but this writ," and for that it was directed improperly to four of the commissioners, when it ought to have been directed to the whole seven. It was also insisted by the defendant Miller that the writ ought to have been served on the other three, before there could be any final action thereon; that it ought to have been delivered to them personally; that leaving a copy at their houses of a writ returnable in so short a time was not a sufficient notice, as there was no reason to believe that Allen had been in the State from the day the first notice issued until the return day of the writ, nor any evidence to show that the defendants had gone out of the way to avoid service, or had been in the county from the issuing of the writ until its return; that there ought, at least, to have been an affidavit of service, to justify any action of the court upon the writ; and that, in fact, the writ had not been served. The court overruled these exceptions, and adjudged that sufficient notice had been given of the writ. A peremptory mandamus was awarded; and from this the record states that the defendants appealed to the Supreme Court.
Battle for defendants.
The Attorney-General for the State.
All the exceptions and objections taken below to the alternative mandamus have been urged her in the argument for the defendants. In support of the objection that the writ is illegal, and ought to be quashed, because it did not issue at least ten days before the day on which it was made returnable, the counsel for the defendants relies on section 63 of the act "concerning courts of justice, practice, pleas and process," 1 Rev. Stat., ch. 31. By this it is enacted that all writs and other civil process (except subpoenas returnable immediately) shall be returned the first day of the term to which they may be returnable, and be executed at least ten days before the beginning of the term, when returnable to a Superior Court, or (133) five days when returnable to a county court; and it is further enacted that if any original or mesne process shall be taken out within the time above specified before the beginning of the term of a court, it shall be made returnable to the term next thereafter. All process made returnable at any other term, or executed at any other time or in any other manner than is thus prescribed is to be adjudged void on the plea of the defendant. The writ before us does not fall within the letter of this section. It was taken out or, rather, issued during term-time, and not before the beginning of the term. But it is manifest, we think, that the provisions of this section are inapplicable to and were not intended to have any operation is confined to writs and process writ of mandamus. Their operation is confined to writs and process used to commence, or in course of prosecution of, ordinary actions for the assertion of private rights or the redress of private wrongs, "taken out" by the parties from the officers of the court, without any special order of the court. The mandamus is an extraordinary remedy, never issuing but by the express order of the court, whose high prerogative it is, when no other adequate remedy can be found, and there would otherwise be a failure of justice, or defect of police, thereby to compel inferior courts, corporations, or persons to perform some specific and known duty. Such a writ can only issue when a necessity for it is shown; and from its very nature it should issue, be made returnable, and be returned, accordingly as the necessity that calls for it may require.
In England these writs are not infrequent; and with a view to uniformity of practice, the courts there have laid down some general rules. Amongst these we find it stated in an Anonymous case, 2 Salk., 434, that the court on the first day of that term made a rule that if the corporation to which a mandamus was sent was more than 40 miles from London, there should be fifteen — or, as the rule is more accurately recited in Rex v. Dover, 2 Stra., 407, fourteen — days between the teste and return of the first writ; but if but 40 miles or under, eight days only. Whether this rule has been applied to any other cases than those involving disputes about corporate offices, franchises, and duties, it is unnecessary to inquire, as it cannot for a moment be doubted (134) but that on a proper case shown the court would make a special order for the return of any mandamus which it might command to be issued. With us the mandamus is scarcely known in practice. Until this controversy, our books of reports furnish us with but two instances in which such a writ has been awarded. Delacy v. Navigation Co., 9 N.C. 274; Dickens v. Justices, 15 N.C. 406. No general rules of practice have yet been prescribed in relation to them; and therefore in each case it is the province of the court by which the writ may be awarded to fix the day on which it should be made returnable.
Nor is it proper — much less necessary — that the writ should declare that there is no other remedy for the mischief which it commands to be removed. The court, indeed, will not, ordinarily at least, interfere by mandamus when there is another specific legal remedy; and it is therefore a good cause for quashing a mandamus that the case set forth in it does not call for this extraordinary interposition. Thus in King v. Margate Pier Co., 3 Barn. Ald., 220; 5 E. C. L., 266, a writ of mandamus to a corporation, commanding them to pay a poor's rate, was quashed because it did not state that the corporation had no effects upon which a distress could be levied. The remedy by distress was the regular, ordinary, and, in general, adequate remedy; and if there existed any fact which rendered the use of it impracticable or insufficient, and therefore warranted a resort to the extraordinary remedy of mandamus, that fact should be averred in the writ distinctly, so as to put it in the power of the defendants to traverse such fact in their answer. Upon examining the precedents, it will be found that writs of mandamus contain no recital that another remedy is not to be had, but only the desire "that due and speedy justice should be done in that behalf." 6 Wentw. Plead., 305 to 356. Indeed, if the case set forth in the writ be one in which there is no other specific remedy, cui bono is this conclusion of law to be stated? Do not the court know it? All that is wanted to warrant and demand their interposition is a verified statement of the necessary facts. It is their duty to know the (135) law arising on the facts.
The objection that the writ should have been directed to all the commissioners whose duty it was to perform the act required has been strongly pressed upon us; and, to show that such is the regular course of proceeding, a case has been quoted from 2 Chitty, 254, where, on an application for a mandamus against one of the church wardens of a parish to concur in a rate with the overseers, it was said by the Court: "You must take the mandamus against the whole of the parish officers: against yourselves as well as the other overseer. It has often been so done." We admit fully the correctness of the doctrine contended for by the defendants, and yet hold that their objection is not sustained. The writ might indeed have been more formally directed to each and every of the seven commissioners; but upon this record it must be held that it was so directed. The mandamus prayed for in the petition is a mandamus directed to all. The petitioners, three of the commissioners, admit service of the mandamus, and declare that they are ready to act. A writ is then addressed to the other four only, because their colleagues have accepted service, and the act which the four are ordered to do, or show cause to the contrary thereof, is an act in company with their colleagues, and in which their colleagues are by virtue of their express assent of record bound to join under the penalty of a contempt. The three petitioning commissioners who acknowledge service of the alternative mandamus declare that they have no cause to show wherefore the act ordered should not be done. And if the others, to whom an opportunity is thus afforded of showing cause, offer none, then all having been directed to do the act, or signify wherefore they do not, the peremptory mandamus properly issues against all, as prayed for.
The remaining exceptions and objections present the inquiry whether there was error in the court below adjudging that service had been made of the mandamus upon Edney, Jones, and Allen. It is one of the first principles of natural justice, one which seldom is, and (136) never ought to be, lost sight of in municipal law, that no man should be condemned unheard; and in furtherance of this principle, process, or notice in the nature of process, almost invariably issues to summon, warn, or compel a party to appear in court and hear the complaint against him, or show cause, if any he has, against that complaint, before any adjudication is made. In general, the form of this process or notice, as well as the manner of its service, is positively prescribed by law; but in many cases these must necessarily be left to the sound sense and discretion of the courts of justice — bound, as they must always feel themselves to be, to keep steadily in view the great principle above stated. As to the manner of serving notices of the nature of that before us, we have nothing more explicit in our legislation than is to be found in the act "concerning courts of justice," 1 Rev. Stat., ch. 31, secs. 126, 127. These make it the duty of the sheriff to serve all notices which are required to be given in the course of any cause, motion, or proceeding, either at law or in equity, "by delivering a true copy of the same to the person to whom it shall be directed (if to be found in his county), or by leaving a copy thereof at the usual place of abode of such person, if in his county," and make the sheriff's return evidence of service, in the manner and at the time stated in such return. This act removes the difficulty arising of the want of an affidavit of service; but it leaves open the question, When is the personal service necessary; and when will a service, by leaving a copy at the dwelling-house, be sufficient? For the determination of this question, where the law is silent, it seems to us the true criterion in general is, For what object is the service of process intended to bring the party into contempt, by founding thereon a motion against him for attachment? If it be, the service must be personal, if possible; but if personal service be not possible, and there is probable cause to suspect that the party keeps out of the way to avoid it, the court may make an order that leaving notice at the dwelling-house shall be sufficient. If, however, the service is not to be made the ground work of a proceeding to punish, but is relied on merely to assure the court that a fair opportunity has been afforded for objecting against a rule or proceeding, prima facie just, there personal service is not (137) necessary, and the other species of service, if the court deem it reasonable, is in law sufficient. See 1 Tidd Prac. (2 Am. from 8 Lon. Ed.), 505; Weston v. Falkner, 2 Price, 2, and ib., 4; King v. Smithers, 3 Term, 351; King v. Edgrean, ibid., 352. When no answer or return of cause is made to an alternative mandamus, the court may be moved for an attachment against the persons to whom it has been directed. And in such a motion, we think the attachment ought to be refused, unless there has been a personal service of the writ, or such a service as the court, by special order, under the circumstances of the case, may direct. But the court, instead of proceeding by attachment for contempt, because cause is not shown, may direct a peremptory mandamus to issue — simply regarding the alternative mandamus as in the nature of a rule to show cause why an absolute mandamus should not be issued. Temper v. Judges, 1 John., 64. And to justify this course, personal service of the rule, or the writ in nature of a rule, is not necessary, for the award of the peremptory mandamus operates, not in the nature of punishment, but as a command to execute an ascertained duty.
Having arrived at this conclusion, we think it necessarily follows that it was within the exclusive province of the court below to determine whether the actual service was a reasonable service or not. It is not for us, therefore, to revise the judgment which the court formed upon that subject. It may be permitted for us, however, to say that his Honor was called upon, by the plainest and strongest considerations of duty, not to lend a favorable ear to any objections on this score, which were not of a very substantial kind. It is not to be concealed that the dispute in this case — as well as the dispute in the case before us at the last term — is, in truth, a contest between two parties which have distracted the county of Henderson upon the question where the county town shall be fixed and the public buildings erected. Public order, the dignity of the laws, the decorous administration of justice, demand that this controversy should be settled as speedily as the right of the (138) matter can be ascertained and judicial forms will permit. In truth, that right had been ascertained — deliberately ascertained — in S. v. King, 20 N.C. 661, where the merits of the controversy were passed upon in the Superior Court, and afterwards reasserted in this Court upon appeal. It could not be doubted but that this decision was quickly and generally promulgated throughout the county of Henderson, and that the party which had failed upon the merits well knew that if they continued further resistance, the adverse party would unquestionably move for the precise remedy now sought for. When, therefore, upon this motion being made, it was seen that but one of the recusant commissioners could be found, on whom to serve notice of the motion; that when he appeared in court, instead of showing cause against the writ moved for, he interposed formal objections only for the purpose of delay; that when the writ did issue, none of these commissioners could be found, and he who had before appeared gave way to another, who, instead of putting in any answer to the writ, sought, by every astute exception and technical objection, to embarrass and protract the proceedings; that no affidavit was offered showing why further delay was necessary for any purpose of individual or public right; nor accounting for the sudden disappearance from home of all the resisting commissioners; nor furnishing any reason for the court to doubt that in truth every one of them was fully aware of the proceeding, and that all were concurring in the opposition ostensibly conducted by one only of their body — under these circumstances, whatever form of notice the law would permit to answer for the purpose of administering justice, the minister of the law was justified in holding to be sufficient notice.
PER CURIAM. Affirmed.
Cited: S. v. Jones, post, 414; S. v. Allen, 24 N.C. 184; Taylor v. School Committee, 50 N.C. 102; McCoy v. Justices, 51 N.C. 494; Kinsey v. Magistrates, 53 N.C. 187; Lutterloh v. Commissioners, 65 N.C. 405.
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