Opinion
January 5, 1960 —
February 2, 1960.
APPEAL from a judgment granting a peremptory writ of mandamus by the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Reversed; writ quashed.
For the appellants there was a brief and oral argument by Joseph W. Bloodgood, district attorney of Dane county, and James W. Cassidy, assistant district attorney.
For the respondents there was a brief by Thronson Thronson of Madison, and oral argument by Lowell T. Thronson.
Mr. and Mrs. List, who obtained the writ and who are the present respondents, own a building in which they operate a tavern and public dance hall. Their establishment is located in Dane county. Dane county has an ordinance regulating public dances and the premises where such dances may be held. The material parts of the ordinance provide that no public dances may be held except when the operator of such dances has obtained a license from the county board for such activities and no such dance may be held by the licensee unless the licensed person has obtained a permit for the specific dance. The county clerk has the duty of issuing permits upon application if the conditions of the ordinance have been fulfilled. Licenses for public dance halls are issued for one year but may be revoked sooner by the county board for various reasons specified in the ordinance.
Lists' dance-hall license had been issued for the year July 1, 1958, through June 30, 1959, but for alleged infractions of the public dance ordinance Lists' license was revoked by the county board on April 21, 1959. All dates hereinafter mentioned occur in 1959. On April 28th Mr. and Mrs. List applied to the county clerk for a permit to hold a public dance at their hall on May 9th. The clerk refused to issue the permit because the county board had revoked their license. Upon that refusal the Lists petitioned the circuit court for an alternative writ of mandamus commanding the clerk to issue the permit so applied for and to issue such other permits for which the Lists might later regularly apply or to show cause for refusing to do so. The alternative writ was granted May 11th, returnable May 22d. On the return day the county clerk appeared by Mr. Cassidy, assistant district attorney of Dane county, and moved to quash the writ. The court denied his motion and ordered the clerk to make return to the writ within five days. The county clerk then made a return which in its essentials set forth that the county board has revoked the Lists' dance-hall license and the clerk would violate the ordinance which controls him if he should issue a dance permit to unlicensed persons.
The trial court heard and considered the return on June 8th. Mr. Cassidy again appeared for the county clerk. In the course of the hearing the court wanted to know whether due process had been observed in the revocation of the List license, and indicated that he would not grant Lists' petition for mandamus if the revocation was for cause and there had been compliance with due process. Mr. Cassidy informed the court that he was promptly beginning a prosecution of the Lists for past violations of the dance-hall ordinance. The court then said that because all such questions of law could be tried out in such prosecutions, the court would presently deny the writ and dismiss the petition without costs and without prejudice to either side and with permission to each party to revive the application for the writ at any time. Thereupon the court adjourned the proceeding indefinitely.
The assistant district attorney did not begin the prosecutions which he had said he intended to commence and on June 25th the Lists moved the trial court to revive the original petition for mandamus against the county clerk. The court heard the motion and revived the petition on June 29th. Then, over the objection of Mr. Cassidy, who again appeared for the clerk, the court ordered that the proceedings be amended to include the county board and its chairman and forthwith gave judgment in favor of Mr. and Mrs. List granting a peremptory writ of mandamus against the county board, its chairman, and the county clerk, commanding them and each of them at once to reinstate and reissue the Lists' dance-hall license and to issue or cause to be issued a permit to conduct a public dance as formerly applied for or which shall be regularly applied for in the future.
The court adjudged that the board had illegally revoked Lists' dance-hall license and such revocation did not justify the clerk in refusing to issue the dance permits for which the Lists had applied. The judgment also contained a recitation that on the May 22d hearing the trial court on its own motion had impleaded the county board and its chairman and so ordered it upon the record.
On June 30th the court issued the peremptory writ of mandamus directed to the county board, its chairman, and the county clerk and the writ was served on them the same day. The board, the board chairman, and the county clerk have appealed.
Additional facts will be given in the opinion.
We consider that the judgment which affects the county board, its chairman, and their action revoking the license was granted in error and the writ of mandamus implementing the erroneous judgment commanding the board to act was issued in an abuse of discretion. We reach this conclusion because the attempt to implead the chairman and the county board is fatally defective and the trial court failed to obtain jurisdiction over them. Sec. 260.19, Stats., authorizes a court to order parties brought in when their presence is necessary for a complete determination of the controversy or where their presence is required for their own protection, but when the court orders that such parties be joined, sec. 260.20 requires:
"PROCEEDING AFTER NEW PARTIES ADDED. Where the court orders the addition of another party under sec. 260.19, the order shall provide that the summons and the title of the action be amended as necessary, and that the amended summons, together with a copy of the original complaint, the order, and the answer and cross complaint with the title amended, be served by the applicant on the additional party within a prescribed time. The order shall also be served within such time on all other parties to the action. Within twenty days after such service of the order, any party may serve amended or responsive pleadings."
The official circuit court reporter attended all the proceedings in the trial court. The record on appeal contains transcripts of each of the hearings and to them the reporter has attached his certificates stating that such transcripts are the proceedings, and are all such proceedings and are accurately transcribed. We have studied these transcripts and the transcript of the May 22d hearing does not mention any order by the court, or any intimation of an order, that the court then ordered the board and the chairman to be brought in as parties to the proceedings. The transcript of the June 8th proceeding contains a statement by the trial judge that he had intended to order such parties brought in but that evidently he had not made himself clear. The court did not then rectify any such omission by entering such an order nor did the attorney for the petitioners understand even then that the additional parties had been joined or impleaded because in counsel's next motion, to revive his petition, he did not include such new parties in the title of the proceeding and he did not include any prayer for relief against anyone except the county clerk.
Whatever else may be said concerning the fact of impleader by the court order and misunderstanding concerning it, there is no record that an order of impleader was ever entered or signed nor was any served upon the parties so alleged to have been joined nor were any notices of their joinder served upon them. And there was no service upon them of any of the papers which sec. 260.20, Stats., supra, requires to be served upon them.
Under such circumstances the trial court gained no jurisdiction over the county board and its chairman and the judgment declaring void their action respecting the license, and the writ issued against them in reliance on the judgment are nullities.
Next we examine the writ of mandamus which orders the county clerk to issue the permit for the public dance for which the Lists had applied and for permits for which hereafter they may regularly apply. It is well settled that, "There must be shown a clear legal right to the writ. . . . The writ will not issue to compel the performance of what would be unlawful, or to enforce what would be without authority of law." State ex rel. Smith v. Drake (1892), 83 Wis. 257, 260, 261, 53 N.W. 496.
" Illegal, Wrongful, or Prohibited Acts. Mandamus is an extraordinary remedy, granted on equitable principles to enforce obedience to law. That being its proper function, the writ will not issue if it appears that no duty rests upon the respondent to perform the act in question or that the act is unauthorized. Nor will it lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do. Much less will the writ be awarded to coerce the performance of acts which are forbidden by statute or law, or are contrary to public policy, or tend to aid in an unlawful purpose or transaction." 34 Am. Jur., Mandamus, p. 866, sec. 76.
And the writ should not issue unless the duty of the public officer to perform the act is clear. State ex rel. New Strand T. Co. v. Common Council (1930), 201 Wis. 423, 424, 425, 230 N.W. 60.
To obey this writ the clerk must disregard and ignore the present revocation of the Lists' dance-hall license by the county board. The clerk's duty is the ministerial one of issuing permits when conditions precedent are complied with. One of such conditions is that the person or persons who conduct public dances must have a license from the county board. The county clerk knew that the board had revoked the Lists' license and they were unlicensed at the time they made their application. In his ministerial capacity the clerk does not determine that the board exceeds its powers in revoking the license nor has he legal power and authority to issue permits in defiance of the board's decision. If the clerk issued the permit and the revocation of the license was finally adjudicated to have been valid (and there has not yet been a contrary adjudication by a court having jurisdiction), the clerk would find himself in a predicament, indeed. Certainly there was then no clear, positive, legal duty of the clerk to disregard the action of the county board or, regarding it, ignore the ordinance which requires an existing license and, nevertheless, issue the permit.
We think that the trial court abused its discretion in issuing that part of the writ directed to the county clerk.
By the Court. — Judgment reversed; writ quashed.