(190 P.) Municipal corporations 185(13)—Prohibition 28-Affidavit for certiorari to review discharge of policeman must state facts, not conclusions; sufficiency of affidavit reviewable on prohibition. ror for holding that there was a variance, 14. it appearing that the defendants did not, either by their pleading or proof, bring themselves within the rule of the statute, though had they done so the evidence at hand would have entitled them to go to the jury. The judgment and order appealed from are wrongful discharge of a police officer must state affirmed. Affirmed. Affidavit for certiorari to review alleged facts, not legal conclusions; and the sufficiency of the affidavit ir that respect is reviewable on prohibition to stay certiorari proceedings. HOLLOWAY, MATTHEWS, and COOP-5. Prohibition 17 Application to lower (58 Mont. 90) STATE ex rel. EXAMINING AND TRIAL BOARD OF POLICE DEPARTMENT OF CITY OF BUTTE et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al. (No. 4624.) (Supreme Court of Montana. May 24, 1920.) 1. Prohibition 21-Affidavit must show beneficial interest by facts stated, and not by conclusion. Under Rev. Codes, § 7228, providing for issuance of writ of prohibition "upon affidavit on the application of the person beneficially interested," a statement in the affidavit that relators are persons beneficially interested is unnecessary, for, if made, it would be insufficient, in the absence of facts showing the correctness of the conclusion. 2. Prohibition 15-Officers held "beneficially interested" in prohibition to stay proceedings against them. Under Rev. Codes, § 7228, requiring relators in application for prohibition to be beneficially interested where discharged police officer brought certiorari to review the action of the mayor and examining and trial board of the police department in discharging him, the mayor and board were "beneficially interested" in prohibition, applied for by them, to stay the certiorari proceedings, especially where the certiorari commanded them to make return of a transcript of the discharge proceedings, which they alleged their inability to do. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Beneficially Interested.] 3. Municipal corporations 185(13)-If discharge of policeman is not supported by complaint and proof certiorari lies though charges sufficient. court to quash writ of certiorari sufficient as basis for prohibition. the court below by presenting the question of Relators having exhausted their remedy in its lack of jurisdiction to issue writ of certiorari by their motion to quash the writ, the action of the lower court was reviewable by prohibition. 6. Prohibition 3(5) Remedy by appeal must be adequate. The right to prohibition is defeated, not by the existence, but by the adequacy of the remedy by appeal. 7. Municipal corporations 185(13)-Certio rari not proper remedy for discharged policeman, where only complaint is insufficiency of evidence; "transcript of record of proceedings;" "courts of record;" "suit." Since the writ of certiorari can only require a return of a "transcript of the record of the proceedings" which, in proceedings for discharge of a police officer, would properly include only the complaint filed, the notice given, with all minute entries made concerning the same and concerning the motion and plea of the defendant, the setting of the matter for hearing, the formal entries of the hearing, the findings of the board, and the final order disposing of the matter and removing the officer, and since under Rev. Codes, §§ 6238, 6239, only the court of impeachment, the Supreme Court and the district courts are "courts of record," and in no other tribunal exercising judicial functions can the magistrate, person, or board officiating be compelled, in the absence of a special statutory requirement, to make or keep a record of the testimony, and under section 3308 there is no provision for recording the testimony in such proceeding for the discharge of a police officer, certiorari, even if it would lie under section 3308, providing that the district court shall have jurisdiction in a "suit brought by the officer or member to determine whether the essential requirements of law have been complied with in the matter of his trial," as included by the term "suit," would be ineffectual in such a case, where the only ground on which excess of jurisdiction could be urged was that the evidence was insufficient to warrant the findings of the trial board, and the officer's only remedy would be by independent suit in equity. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Court of Record; Suit; Transcript.] If the complaint on which a police officer was tried before the examining and trial board of the police department did not state facts sufficient to constitute the offense with which he was charged, or if there was no substantial 8. Certiorari 28(1)-Lies only for excess of evidence offered tending to prove the charges, jurisdiction. certiorari would lie, though the charges filed The writ of certiorari can only be employed were sufficient. to determine whether a tribunal exercising ju For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dicial functions has exceeded its jurisdiction | correctness of the conclusion. State v. Ellis, or authority. Original application by the State of Montana, on the relation of Examining and Trial Board of the Police Department of the City of Butte and another, for writ of prohibition directed to District Court of the Second Judicial District of the State of Montana in and for the County of Silver Bow, in which respondents move to quash the alternative writ of prohibition. Motion to quash alternative writ overruled, and peremptory writ granted. R. L. Clinton and C. F. Juttner, both of Butte, for relators. Ed. Fitzpatrick and Canning & Geagan, all of Butte, for respondents. MATTHEWS, J. Prohibition to stay the action of respondents on writ of certiorari issued against relators at the instance of one James Burns, discharged police officer of Butte. 47 La. Ann. 1602, 18 South. 636. The affidavit and application must show facts from which the court can determine the questions involved. Dakan v. Santa Cruz Superior Court, 2 Cal. App. 52, 82 Pac. 1129; In re Francis, 7 Idaho, 98, 60 Pac. 561; Clifford v. Parker, 13 Wash. 518, 42 Pac. 717. In determining whether the relators are entitled to the writ, the court will look to the allegations of fact rather than for the recital of conclusions on the subject. [2] While the application here is made only by the mayor and the examining and trial board of the police department of the city, it must be remembered that they are officers sworn to protect the interests of the city, and are the respondents in the very proceeding which they are seeking to have stayed, and it cannot be said that they are not parties in substance, or that they will not derive benefit from the issuance of the writ; on the contrary, it would seem that relators are vitally interested, as officials shall be compelled to reinstate an officer to of the city, in determining whether they thereafter work with and under them, after they have, in their official capacity, determined that he is unfit for the position. The affidavit of relators recites that proceedings were commenced against Burns, charging acts constituting conduct unbecoming a police officer, notice given and hearing had as required by law, findings of the In the case of State v. Superior Court, 4 board sustaining the charges, and dismissal Wash. 30, 29 Pac. 764, the Supreme Court by the mayor. Thereupon Burns applied to of Washington held that a county attorney, the respondent court for a writ of certiorari, whose duty it was to protect the treasury which was issued, commanding relators to of the county, was entitled to apply for the certify and return to said court a full tran-writ to prevent illegal disbursements, stating: script of the record of the hearing, including all exhibits and all testimony offered on the hearing. Relators appeared and moved to quash the writ for insufficiency of the affidavit, lack of jurisdiction in the court, and that the court had exceeded its authority in ordering a tribunal not a court of record to return a transcript of the testimony taken. The motion was denied. Respondents move to quash the alternative writ of prohibition on the grounds: (1) That it does not appear from the affidavit upon which the writ was issued that relators are entitled to any relief by writ of prohibition or at all. (2) That the facts set forth in said affidavit and application are not sufficient to authorize the issuance of the writ. 1. It is contended that there is no allegation or statement in the affidavit that relators are the persons beneficially interested, nor does it appear therefrom that they are so interested, nor that the same was made on behalf of the city of Butte. "We think it would be a strained construction of the proprieties to hold that the officer whose duty it is made by statute to represent * should not upon the state and county his own oath state the facts which constitute the basis of this proceeding. tion is said to be the converse of mandamus, but the same degree of strictness as to parties is not maintained."-Citing High on Extra. Remedies, 764, 779. * Prohibi This case, in our judgment, presents an entirely different question from that decided in State ex rel. Hackshaw v. District Court, 48 Mont. 481, 138 Pac. 1100, where it was held that the board of county commissioners were not beneficially interested in the subject-matter of an appeal from their order granting a saloon license. There the question was as to a private right or privilege, while here the best interest of the city, which relators are sworn to uphold, is involved. Further, the relators are directly affected by the order of the court compelling them to make return of a transcript, which they allege they cannot do, and which would, if effective, require them to thereafter employ a stenographer and make a transcript of the testimony in all proceedings before the board. [1] Section 7228 of the Revised Codes provides that the writ may be issued "upon affidavit on the application of the person beneficially interested." A statement in the affidavit that relators are persons beneficially interested would be but a legal conclusion, and, if made, would not be sufficient, in the 2. The affidavit recites the official status (190 P.) Burns, notice to him of the time and place | does it set out facts to support the concluof hearing, his plea to the complaint and sions that "the complaint does not state the hearing, findings and order of discharge facts sufficient to constitute the charge;" that of the officer. It sets out the complaint in "no substantial evidence whatever was infull. It then recites the application of Burns troduced or produced," or that "the said for the writ of certiorari, setting out his af- board and mayor failed to comply with or fidavit in full; the writ issued out of the see that all the essential requirements of law district court, their motion to quash the in said proceeding had been fully complied same, and the order overruling the motion. | with,” but required the court to accept the It then recites the fact that said board is bald conclusions quoted in order to determine not a court of record, and never had in its the question of its jurisdiction to issue the possession or under its control any tran- writ. Respondents now contend that, whethscript of the testimony, that relators have er such determination was correct or not, no plain, speedy, and adequate remedy at the action of the district court is conclusive, law, and that the trial court is proceeding as "the only purpose of the writ is to move and will proceed without jurisdiction. While the reviewing court to act. When the writ these latter statements are in the nature of issues, the affidavit becomes functus officio. conclusions, relators have set out, in their State ex rel. First Trust & Savings Bank v. affidavit, all of the facts from which the District Court, 50 Mont. 259, 146 Pac. 539. conclusions may be drawn, and if, as alleged, But counsel mistakes the purport and applithe respondent court was without jurisdic- cation of the language quoted; it was used tion to issue the writ complained of, in the by the court in connection with the declarafirst instance, and it further appears that tion that the affidavit "is not a pleading, and the relators have no plain, adequate, and its averments cannot be traversed by any speedy remedy in the ordinary course of law-other pleading." Its averments are taken as which questions will be considered later-the true, and cannot be denied; but the court relators were entitled to the alternative writ, and the motion to quash should be overruled. In addition to the motion, respondents filed their answer to the allegations of the application, which joins issue on the questions of law involved, and we will now consider such questions as are properly presented. does not intimate that the sufficiency of those averments cannot be questioned, either on appeal or in appropriate proceeding for that purpose; the court in fact stated: "The writ of review is issued upon a proper affidavit by a party beneficially interested. Section 7204, Rev. Codes." If the affidavit is lacking in the essentials, it is as though no affidavit was filed. [3] 3. The relators' first contention is that the petition filed in the court below, and on which the writ of certiorari was issued, shows on its face that the board had jurisRespondents, however, contend that the diction of the party, and regularly pursued question cannot be raised, as our statute each and every statutory step required under makes no provision for a demurrer or motion the Metropolitan Police Law in order to in- to quash. They, therefore, contend that the vest it with jurisdiction. A careful exami-only course open, on the issuance of the writ, nation of the affidavit of Burns, a copy of which is attached to the application here, discloses such to be the fact; but if, as is contended on behalf of Burns, the complaint on which he was tried before the board did not state facts sufficient to constitute the offense with which he was charged, or if, as alleged, there was no substantial evidence offered tending to prove the charges, even though the charges filed were sufficient, the writ issued by respondent court would lie, and relators here would not be entitled to the relief sought in this court. However, the application contained neither a copy of the complaint nor a résumé of the testimony, and the district court was in no position to pass upon the sufficiency of the complaint or the substantiality of the evidence. is to make the return commanded, and cite in support of their contention the case of Garrison v. Malheur County Court, 54 Or. 269, 101 Pac. 900, decided under a similar statute. There, it is true, we find the state ment: "The statute makes no provision for demurWhen the writ isrer or motion to quash. sues, the inferior court has no alternative but to send up its return, and the hearing is then had upon the inspection of the writ and the return, and no demurrer or motion is necessary." But that portion of the opinion immediately preceding the quotation explains the language used, as follows: "Counsel for appellant ingeniously argues that respondents, having made a full return to the writ in the court below, without interpos[4] 4. The second ground urged is that af-ing any motion to quash or any demurrer on fiant's showing was not sufficient to entitle account of defects of parties, are precluded him to the writ of certiorari; that his affi- from raising that question, and will be held to davit contained no facts, "but only a mass of legal conclusions." The affidavit gives no intimation as to what were the charges preferred in the complaint against him, nor have waived it." Even though it be conceded that the case cited sustains the contention of respondents, the Supreme Court of Oregon has, in the later case of Drummond v. Miami Lumber Co., 56 [ that the complaint was sufficient and the Or. 575, 109 Pac. 753, followed the general evidence substantial and convincing. The perule on the subject. The court there de-tition was wholly insufficient, and the lower clares: court was therefore without jurisdiction to issue the writ. "As authoritatively settled in this state, it is essential to the availability of a proceeding by writ of review that the petition state facts sufficient to authorize the issuance of the writ, the inadequacy of which statement is fatal to the proceeding. This makes it necessary, in the case before us, to examine only the petition presented by the record, the competency of which is assailed by proper motion." (Italics ours.) The rule is thus stated in 11 Corpus Juris: "The application must also set out with reasonable certainty, but not necessarily such certainty as rebuts every conclusion to the contrary, facts, and not merely conclusions of law, showing illegal action below and consequent injury, so that the court may see, assuming the petition to be true, that there is error." Page 149. "Defects in the writ should be taken advantage of by motion or by application to supersede, before filing the return." Page 170. "Insufficiency of the petition for the writ in that its allegations do not show that the petitioner is entitled to the writ, is ground for quashing the writ"-citing numer ous cases. In Drummond v. Miami Lumber Co., supra, the applicant set up certain facts contained in his complaint in a justice's court, and that a trial was had, and then alleged that "After hearing the evidence introduced by the respective parties, the said court found the allegations of plaintiff's complaint were true, * but wrongfully and unlawfully dismissed plaintiff's complaint and wrongfully and unlawfully rendered judgment against plaintiff." The court said: "Neither the answer nor the averments therein appear in the petition. So far, therefore, as is disclosed by the petition the defendant may have pleaded and established some adequate defense to the action, and that this was done may be inferred from the holding of the court to the effect that there was no cause for instituting the action. If, however, the answer was insufficient for that purpose, or if anything occurred at the trial disclosing irregularities prejudicial to the substantial rights of plaintiff, on account of which it may appear that the judgment was 'wrongfully and unlawfully entered,' it was incumbent upon plaintiff to so state in the petition. * * We can determine the truth of these assertions only by the facts from which these conclusions are deduced. In other words, as used in the petition, the averments are statements of conclusions only." In the case before us, as in the Drummond Case, the averments in the petition, or affidavit, are statements of conclusions only, and, in the absence of allegations of fact from which the conclusions may be drawn, it may [5] 5. It is contended that, the court having acted in the issuance of the writ, prohibition will not lie to require the undoing of that which has been done; but the rule is that "Where anything remains to be done by the court, prohibition will give complete relief, not only by preventing what remains to be done, but by undoing what has been done." 32 Cyc. 630, and cases cited in note 6. Relators exhausted their remedy in the court below by presenting the question on their motion to quash, thus giving that court an opportunity to correct its error in the issuance of the writ, and are properly before this court for relief. [6] 6. Respondents contend that the writ of prohibition does not lie because of the fact that relators have a remedy by appeal from any judgment finally rendered, citing State ex rel. Browne v. Booher, 43 Mont. 569, 118 Pac. 271. This question is, however, disposed of by the decision in the case of State ex rel. Lane v. District Court, 51 Mont. 503, 508, 154 Pac. 200, 202, as follows: . "It is urged that the remedy by appeal from an adverse final judgment is available to the relator, and that the writ of prohibition should be denied for that reason. While our Code provides that the existence of a remedy by appeal will defeat the right to relief by certiorari (Rev. Codes, § 7203), the like provision is not found in the section applicable to the writ of prohibition. Unless the remedy by appeal, or by other proceeding, is plain, speedy, and adequate, relief by prohibition may be granted in a proper case. Rev. Codes, § 7228. The existence of a remedy by appeal does not necessarily defeat the right to relief by prohibition. State ex rel. Marshall v. District Court, 50 Mont. 289, 146 Pac. 743. An application of this character is addressed to the sound discretion of this court (State ex rel. Mackel v. District Court, 44 Mont. 178, 119 Pac. 476); and whenever it is made to appear, as in this instance, that under no conceivable circumstances can the district court render a valid judgment because of a lack of jurisdiction, the discretion should be exercised in favor of issuing the writ, to the end that litigants may be saved the needless trouble and expense of prosecuting their litigation to a fruitless judgment." The district court and the litigants should know at once that the court is without jurisdiction to proceed in the matter before it, to the end that, if the discharged officer is entitled to reinstatement, proper proceedings to that end may be instituted without the unnecessary delay attendant upon final determination of a proceeding which can determine no issue. [7] 7. Is certiorari the proper proceeding? (190 P.) As the record in the instant case would contain no transcript of the evidence, it would seem that the writ would be ineffectual, since the only ground on which excess of jurisdiction could be urged is that the evidence was insufficient to warrant the findings of the board. And it would seem, therefore, that the manner in which the question could be reached would be by an independent suit in equity to set aside the judgment or order on the ground of the insufficiency of the evidence to warrant the findings on which such judgment or order is based, in which suit, the facts being properly pleaded, evidence could be introduced to establish what testimony was given before the board. the court of impeachment, the Supreme Court | rel. Harris v. District Court, 27 Mont. 280, 70 and the district courts of the state, and only Pac. 981. those courts, are courts of record. In no other tribunal exercising judicial functions can the magistrate, person, or board officiating be compelled, in the absence of a special statutory requirement, to make or keep a record of the testimony. There is no such provision in our Metropolitan Police Law (section 3308, Rev. Codes), and if, on such a hearing, a stenographer is employed and does take the testimony, such employment is without warrant of law, and the record of the testimony is unofficial, and could be used thereafter only by mutual agreement or stipulation, as was done in the case of State ex rel. Griffiths v. Butte, 57 Mont. -, 188 Pac. 367. The court here was without authority to command the board to return the transcript, if one was made, and it does not appear from the application for the writ of certiorari that the board had or could obtain such a transcript. The writ of certiorari can only require a return of "a transcript of the record of the proceedings" (section 7206), which would properly include only the complaint filed, the notice given, with all minute entries made concerning the same and concerning the motion and plea of the defendant, the setting of the matter for hearing, the formal entries of the hearing, the findings of the board, and the final order disposing of the matter and removing the officer. Our statute provides that, on such a hearing: "The decision of the board shall be final and conclusive, and shall not be subject to review by any court, on question of fact. The district court of the proper county shall have jurisdiction, however, in a suit brought by the officer or member, to determine whether the essential requirements of law have been complied with in the matter of his trial." Section 3308, Rev. Codes. [8] In the case of Weston v. Charleston, 2 Pet. 464, 7 L. Ed. 481, quoted in Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449, Chief Justice Marshall said: "The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy which the law affords him." The term, as used in our statute, would, therefore, include the proceedings instituted in the lower court. However, the writ can only be employed to determine whether a tribunal exercising judicial functions has exceeded its jurisdiction or authority. State ex rel. Allen v. Napton, 24 Mont. 450, 62 Pac. 686; State ex rel. King v. Second Judicial District Court, 24 Mont. 494, 62 Pac. 820; State ex rel. B. & M., etc., Min. Co. v. District Court, 22 Mont. 241, 56 Pac. 281; State ex The motion to quash the alternative writ will be overruled, and the peremptory writ, as prayed for, will issue, staying further action of respondents, and directing the dismissal of the proceedings. Writ granted. Appeal from Circuit Court, Baker County; Gustav Anderson, Judge. Suit by Marion C. Bostwick and others against C. A. Hosier and others. From a decree dismissing the suit, plaintiffs appeal. Reversed, and decree for plaintiffs entered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |