Weber v. Zimmerman

Bartol, J., delivered the opinion of this Court: In the opinion in this cause, delivered by this Court at the June Term, we did not enter fully into a statement of the changes of the law in cases of mandamus, wrought by the Act of 1858, ch. 285, now embodied in the Gode, Art. 59 ; nor is it necessary now to do so. The chief purpose of that Act was to avoid the delays attendant upon the proceeding at common law, and to make the remedy more speedy and effectual. To accomplish that object, the Legislature has abolished the alternative writ, requiring the defendant, in his answer to the rule ,to shew cause, issued ⁵³ upon the petition, to state the grounds upon which he means to rely, as causes why the writ should not issue as prayed; thus placing the answer to the rule, in some respects, on the footing of the return to the alternative writ. One other material change has also been effected by the statute.

While, at the common law, the averments made in the return to the alternative writ were not traversable, — and if not true, the relator was put to his action for a false return,— the statute now provides that the petitioner may plead to or traverse all and any of tiro material averments set forth in the answer to the petition, and the defendant is required to take issue or demur to the plea, or traverse; and thereupon suclr further proceedings shall be liad for the determination thereof, as if the petitioner had brought an action for a false return. The Act further directs that the issue shall be tried by a jury, if either party desire it, or heard and determined by the Court if both parties agree; and if a verdict bo found for the petitioner, or the Court, on a hearing, determine in his favor, or judgment be given for him upon demurrer, or for want of a plea, he shall thereupon recover his damages and costs, as he might have done in an action on the case for a false return, to be levied by execution; and a peremptory writ of mandamus shall be granted thereupon, without delay, against the defendant. Before proceeding to examine the particular questions arising upon the motions now before us, it is proper to remark: First. That while these material changes have been made by the Code, in the course and manner of proceedings in cases of this kind, the essential nature of the remedy or of the writ is not changed.

It is still what it was at the common law, a prerogative writ, not demandable ex débito justifies, but granted at all times in the sound discretion of the Court, under the rules long recognized and established at the common law. When the Code therefore directs that, upon the verdict being found in favor of the petitioner, a ⁵⁴ peremptory writ of mandamus shall be granted thereupon without delay; it is not to bé understood as taking away the discretion of the Court still to refuse the writ, if for sufficient legal cause it shall appear in its discretion the writ ought not to issue. Secondly. In the opinion of this Court, the essential properties of the writ itself have not been changed; and when it has been issued by a competent Court, in the peremptory form, it has the same force and effect as the peremptory writ at the common law; and the defendant cannot disobey it for any cause or reason which might have been urged in resisting the application for the writ.

After this appeal was heard at. the June Term, this Court affirmed the ruling of the Superior Court, set forth in the bills of exceptions, and ordered the writ to be issued in the peremptory form. It was issued on the 29th day of October 1864, and made returnable to the December Term. By the change in the Constitution, which went into effect on the 1st day of November, the December Term was abolished ; and by the Act of Assembly, passed at the last Session, a special Term was directed to be held on the 24th day of January 1865, to which all writs and process returnable to the December Term 1864, were made returnable. The defendants failing to return the writ, upon' application to this Court, on the 1st day of March, a rule was laid upon them to make return of the same on or before the ⅞ day of March.

That rule having been duly served, and its exigency not having been obeyed, the Court, on the 8th day of March, directed an attachment for contempt to be issued against the parties, returnable on the 14th day of March. On that day'the defendant, Weber, upon whom alone the peremptory writ had been served, appeared in person, and first having, by leave of the Court, upon solemn oath, purged himself of the contempt alleged against him, was permitted to file in Court, by his counsel, a return to the writ, setting forth certain causes, by which he alleged it had become impossible to execute the same; and thereupon ⁵⁵ motions were filed to quash and discharge the attachment, and also to quash and supersede the writ of mandamus. These motions were set down for hearing, and have been fully argued by counsel, and considered, and now remain to be disposed of. We have said that the writ, when issued in Maryland in the peremptory form, has the same force and effect as at the common law, and the same rule applies, that ordinarily no return thereto will be accepted, except a certificate of obedience.

Tap. on Man., 408. Queen vs. Ledgard, 41 Eng. C. L. Rep., 697, 700. This is the general rule; nevertheless, it is settled that a peremptory writ may be quashed or set aside if it has prematurely or improperly issued, or if it has unnecessarily issued, or if it be on its face bad in substance.

Tap. on Man., 408, 409. Or if it be impossible