Evening journal., 1896-11-27
JUDGE GRUBB'S OPINION
He Tells Why He Dissents
From the One of the Majority.
DEPARTING FROM PRECEDENT


IS A DANGEROUS PROCEDURE ON
THE PART or A COURT SHAW
SHOULD NOT HAVE BEEN MADE
A PARTY TO THE MANDAMUS|
PROCEEDINGS.
IN order that the public may know
the precise language used by Judge
Grubb in his dissenting opinion dellv-
cred on question Of quashing the al
tentative writ of mandamus in the
Kent county election case, the Evening
Journal gives it full as follows
It is necessary for me to say to the
counsel representing all the parties in
this proceeding that / feel constrained
to dissent from the decision of the ma
jority of this court, and to state my
reasons for so doing
The counsel for the majority Of the
respondents have moved the court to
quash this alternative writ OF manda-
mus, and have presented several
grounds in support Of their reason.
Owing to the supposed urgency of this
case, l have not had sufficient time
duly TO investigate and consider all
the questions of law presented at the
argument yesterday, but as, in my
judgment, the determination Of one OF
these questions will dispose Of the
pending motion, l will restrict myself
to that and briefly express my views
respecting it,
! am thoroughly convinced that this
alternative writ should be quashed
because Samuel L. Shaw. the sheriff OF
Kent county, was made a party TO the
alternative writ when he was not. and
has not yet. been named either in the
petition Of the REALTORS or In the rule
to show cause issued thereon.
He has pretended to make himself q
party simply by his own official re-
turn endorsed on the rule which was
issued against all the other defend
ants to be served by him as sheriff,
but not against himself. He has thus
pretended to make himself a party re-
spondent by his own unauthorized act,
when neither he himself has, nor have
the respondents or the REALTORS, asked
or obtained leave for this purpose. or
asked or obtained leave of the court
to amend the petition and rule for
said purpose.
If this is allowable in this case, then,
in any ordinary form Of action, any
stranger could as well intrude himself
and become a party plaintiff or de-
fendant TO a private suit against the
desire of the actual parties and with
out leave Of the court. For this man
damus proceeding is brought by the
petitioners to assert a private right TO
offices of greater or less pecuniary
value, and in their individual, and not
their public character. Il is In this re-
spect, therefore, similar to any other
private action. And hence it is ut
terly absurd to hold that the said
sheriff can by his own mere YOlitiOn
and unauthorized return, thus make
himself a party TO this alternative
writ. In adopting this course the
sheriff and his counsel have relied
upon an absolute miscOnception of
Chancellor Saulsbury's opinion In
Knight & Kennedy VS. Ferris, decided
in our Court of Errors and Appeals
and reported in Houston, page 322-24
wherein he reviews the case Of State
VS.. Jones ct al, 1 Iredell's reports, 120
In said Iredell case the court held
that the writ OF mandamus should be
directed to all the persons whose duty
it was to perform the acts required
though some Of them might be appli-
cants for the writ. In that case there
were seven commissioners. whose duty
it was to do a specific act. Three Of
the commissioners filed a petition for
a mandamus 10 compel the other four
in concurrence with them, to perform
the specific duty, and an alternative
mandamus was issued, directed TO the
four only, which was returned with an
admission of service by the three pc
titioners and an expression of readi-
ness to perform their duty; whereupon
peremptory mandamus was ordered.
It was held that the order for the per-
emptOry mandamus was against all,
and that the proceedings were sufii-
cient, although the alternative writ
was directed to the other four only.
and did not include and was not di-
rected or addressed to their other
three colleagues.
/ But in this Iredell case the court ex-
/ pressly call attention to the fact that
/ the petition, in conformity with which
/ the alternative writ issued, contained
/ the names Of all the seven commits
/ sioners, and also prayed that the writ
/ Of mandamus be directed to all OF
them. Chancellor Salisbury. i'm
ton. 323, also particularly notes this
fact and relies upon this distinction in
the differing case then before him.
! This case now before us here alsC
differs from the Iredell case in that
the name Of Sheriff Shaw was not in
cluded as a correspondent in either the
petition or prayer of the relators, or in
the rule to show cause issued in con
| formity herewith. Nor can it be sc
included in the alternative writ. which
must also be in conformity Herewith
As this case stands, therefore he Is mo-
rightfully or lawfully party to these
proceedings, and there is nothing il
either the Iredell case, or in the knight
. & Kennedy VS.. Ferris case to warran
the view Of the sheriff, or of the coun
sci for him or for the REALTORS, that h'
has legally been made a proper part!
respondent in either the rule or thu
pending alternative writ. Such con
tention or claim is absolutly untena
bic. Hence this alternative writ nov
stands, in legal contemplation, as i
his name did not at all appear any
where within it.
According TO the rule declared AM