Fong, Auditor v. Sapienza, Judge , 39 Haw. 79 ( 1951 )

I respectfully dissent. The majority opinion holds that mandamus lies in this case to compel an inferior court not only to reverse a decision made by it in the exercise of its legitimate jurisdiction but to enter a new decision and to direct it to exercise with respect thereto judicial discretion in a particular manner differently from that in which it has already exercised discretion. Such a holding violates the essential purpose of mandamus, which is purely mandatory, and I find no authority to support it.

The authoritative holdings of this court are to the contrary. Thus the opinion of Mr. Chief Justice Allen in J.T. Waterhousefor a Writ of Mandamus, 2 Haw. 241, 244, 245, held that "a mandamus will not lie to control or coerce the discretion of a subordinate tribunal" and that "This motion, if properly entertained by the Police Court, should have been decided; still it is an interlocutory motion, and a mandamus is not a proper remedy to regulate the proceedings as they are progressing. It can only apply when the court refuses to decide." On appeal therefrom to the full court, Mr. Justice Robertson delivered the decision of the court which declared that the opinion of the chief justice "must be affirmed, and the mandamus refused." (J.T. Waterhousefor a Writ of Mandamus, 2 Haw. 251.) In correlation, this court in Scott v. Stuart, 22 Haw. 576, 577, said: "The lower court has passed upon the question before it, and the result, of which complaint is now made, is a judicial determination. If that is erroneous it is a judicial error which cannot be corrected by writ of mandamus. The writ is appropriate to compel subordinate courts to proceed and determine cases pending before them; but in no case does it lie to compel a judicial tribunal to render any particular judgment or to set aside a decision already made. Exparte Koon, 1 Denio 644. `This court cannot by mandamus compel an inferior court to reverse a decision made by it in the exercise of its legitimate jurisdiction.' Ex parte Flippin,94 U.S. 348. As was said by the court in the case of The State ofFlorida ex rel. P. L.R.R. Co. v. Van Ness, 15 Fla. 317, `A mandamus does not lie in this case. The only duty which the judge had to perform was the exercise of his judicial discretion and judgment in the matter of determining his qualifications. This he has done and this writ does not lie to make him reverse his decision even though it be wrong.' See also Ex parte Chambers, 10 Mo. App. 240."

The majority opinion in effect abrogates these principles. It purports to do so under the authority of Collector of Customs v. Circuit Judge, 12 Haw. 99, 103, by relying upon a quotation therein from the case of Virginia v. Rives, 100 U.S. 313, 323, that "It [mandamus] does not lie to control judicial discretion, except when that discretion has been abused." But this court in that authority did not either expound upon such quotation or complete it so as to consider the qualifying clause immediately following it within the same sentence as employed by the Supreme Court inVirginia v. Rives, supra. That qualifying clause is illustrative of a case to which the rule against control of judicial discretion by mandamus does not apply, the case being one in which the inferior tribunal to which the writ was addressed had no jurisdiction of the cause and therefore one in which mandamus was warranted to compel that tribunal to transfer that cause back to the tribunal having jurisdiction. Such clause reads (pp. 323, 324): "* * * but it [mandamus] is a remedy when the case is outside of the exercise of this discretion, and outside the jurisdiction of the court or officer to which or to whom the writ is addressed." Apparently this court in Collectorof Customs v. Circuit Judge, did not deem it necessary to so expound upon and complete the quotation to which it alluded for the reason that the case before it was not the case before the Supreme Court in Virginia v. Rives, supra, but one in which the inferior court to which the writ was addressed had jurisdiction of the cause and therefore one in which mandamus was not warranted to compel that tribunal to grant a commission for an oral examination of witnesses which it had refused to do although granting a commission to examine witnesses upon written interrogatories and cross-interrogatories. Such is the case on which the authoritative holding of this court rested in denying the writ irrespective of its dicta in finding that there was no showing of an abuse of judicial discretion warranting mandamus and in declaring (pp. 103, 104) that "Were this the last opportunity the relator had to obtain a commission for the examination of witnesses, there would be stronger ground for granting the writ." Consequently, Collector of Customs v.Circuit Judge, supra, is not an authority for the proposition that mandamus will lie to command an inferior tribunal to revise or reverse its decision, where that decision, as here, is in the nature of a judicial act, and within its jurisdiction and discretion. Nor in my opinion does it constitute a reasonable basis upon which to change drastically the settled law in order to make a writ of mandamus reach such a decision. To do so would overrule the more recent case of Scott v. Stuart, supra, which is the final and decisive word upon the subject in this jurisdiction, as well as nullify the broad and sweeping language of this court which therein emphatically declared that "* * * in no case does it [mandamus] lie to compel a judicial tribunal to render any particular judgment or to set aside a decision already made."

By unanimity of authority, mandamus does not lie to reverse decisions of inferior courts upon matters properly within their judicial cognizance. (See Bank of Columbia v. Sweeny,26 U.S. 1 Pet. 567; Ex parte Hoyt, 38 U.S. 13 Pet. 279; Ex parteWhitney, 38 U.S. 13 Pet. 404; Ex parte DeGroot, 73 U.S. 6 Wall. 497; Ex parte Newman, 81 U.S. 14 Wall. 152; Ex parteSchwab, 98 U.S. 240; Ex parte Perry, 102 U.S. 183; Ex parteDes Moines M.R. Co., 103 U.S. 794; Ex parte Hendree, 49 Ala. 360; Ex parte Gilmer, 64 Ala. 234; Ex parte Graves, 61 Ala. 381; Ex parte Schmidt Smith, 62 Ala. 252; Ex parte Brown,58 Ala. 536; Ex parte South N. Ala. R. Co., 65 Ala. 599,Judges of Oneida Com. Pleas v. People [N.Y.], 18 Wend. 79, overruling People v. Superior Ct. of N.Y. [N.Y.], 5 Wend. 114; People v. Judges of Duchess Com. Pleas [N.Y.], 20 Wend. 658; Ex parte Koon, 1 Denio 644; Ex parte Ostrander, id. 679;Elkins v. Athearn [N.Y.], 2 Denio 191; People v. Weston,28 Cal. 639; Cariaga v. Dryden, 29 Cal. 307; Lewis v.Barclay, 35 Cal. 213; Jones v. Justices of Stafford [Va.], 1 Leigh 584; People v. Pratt, 28 Cal. 166; People v.Moore, 29 Cal. 427; State v. The Judge of Kenosha CircuitCourt, 3 Wis. 809; Warren County Ct. v. Daniel [Ky.], 2 Bibb 573; State v. Wright, 4 Nev. 199; Stout v. Hopping,17 N.J.L. 471; Little v. Morris, 10 Tex. 263; Dunklin County v. Dunklin County Dist.Ct., 23 Mo. 449; Potter v. Todd, 73 Mo. 101; Williams v.Judge of Cooper Ct. Com. Pleas, 27 Mo. 225; Blecker v. St.Louis Law Comr., 30 Mo. 111.) This general rule applies even though such decisions are plainly erroneous, constituting as they would judicial errors, which are beyond the province of a mandamus to correct. (Judges of Oneida Com. Pleas v. People [N.Y.], 18 Wend. 79; Cariaga v. Dryden, 29 Cal. 307; Exparte Whitney, 38 U.S. 13 Pet. 404; The County Ct. of Warren v. Daniel [Ky.], 2 Bibb 573; Stout v. Hopping, 17 N.J.L. 471; Foster v. Redfield, 50 Vt. 285.) Mandamus reaches only the question of whether an existing duty was discharged and not the soundness of justice of result reached. (United States exrel. Maine Potato Growers Shippers Ass'n v. InterstateCommerce Commission, 88 F. [2d] 780, cert. denied,300 U.S. 684.) It will not lie for mere purpose of review. (Ex parteHartwell, 238 Ala. 62, 188 So. 891.) Nor can it be invoked as a substitute for a direct review of the order of a judge in any matter which he had jurisdiction to decide (People ex rel.Brignall v. Lewe, 383 Ill. 549, 50 N.E. [2d] 577), particularly where the proper and adequate remedy is that of appeal or writ of error. (State ex rel. Wolski v. Reed,146 Neb. 348, 19 N.W. [2d] 545.)

This is not a case of a refusal to exercise discretion nor is it one outside the exercise of judicial discretion or outside the jurisdiction of the inferior court. It is rather one to reverse a decision of continuance made within the jurisdiction of that court after being fully advised and one to control or coerce the exercise of judicial discretion and jurisdiction thereafter. Nor has there been any showing that there is no adequate remedy of appeal to correct the decision of continuance, if erroneous, or that there has been a clear abuse of discretion, amounting to a practical denial of justice, even if it were assumed that such abuse would warrant mandamus. On the contrary, the record demonstrates that the respondent circuit judge properly exercised judicial discretion and his decision of continuance afforded petitioner more than ample time in which to answer and show cause, if any he had, why he should not draw the warrants in question. This is evidenced by the petitioner's sworn testimony, offered in support of his motion for a continuance, as a sound and impelling reason why the respondent exercised his judicial discretion and jurisdiction in the manner in which he did. That testimony disclosed that the petitioner has only one defense to the petition for a writ of mandamus in the circuit court, which puts into issue the character of the duty of an auditor of the City and County of Honolulu to draw warrants preaudited and approved by the controller under section 5694 of Revised Laws of Hawaii 1945. Such defense is that this section makes such drawing a discretionary rather than a ministerial act. It presents a question of law for the court to decide on reading the section, the disposition of which requires no extended time for presentation, argument or deliberation. Twenty hours as granted by the decision of continuance in which to prepare that defense and answer accordingly should suffice for any duly licensed attorney, particularly so where the language of the statute involved is clear and unambiguous and consists of but one short sentence pertinent to the question. Presumably the respondent circuit judge after extended hearing deemed that no useful purpose would be served by a longer continuance. This court is in no position to say otherwise or to declare that reversal of the inferior court's decision and substitution of a new decision are clear legal duties to be performed by the respondent as a requisite of mandamus.

Aside from being unsupported by authority and contrary to the holdings of this court, the majority opinion to my mind establishes a dangerous precedent which leaves all inferior courts not only in a state of uncertainty as to the manner in which to exercise their judicial discretion in any particular case but in a state of fear as to when the progress of hearings and trials may be disrupted by mandamus at the instance of any party deeming himself aggrieved by decisions made for the purpose of insuring that progress.

In my opinion the alternative writ of mandamus should not have issued in the first instance and the petition for writ of mandamus should have been dismissed with costs.