Mitchell v. Boardman

Mandamus. Judge police court. Search, and seizure. Intoxicating liquors. Tlie court will not grant a writ of mandamus on the petition of a private citizen to compel a judge of a police court, having jurisdiction, to issue a search warrant upon the complaint of such citizen. The court will not issue mandamus when it is too late to be an available remedy, as when the thing commanded to be done would be an idle and useless ceremony.

On report. . The case is stated in the opinion. It was agreed between the parties before the drawing of the petition, that no question as to the right of a private citizen to petition in a public matter would be raised, and it is presumed that no such contention will be made. For the convenience of the court, however, in case any doubt of its authority to issue the writ prayed for, should arise in connection with that question, the following cases are cited. Hamilton, Auditor v. The State, 3 Ind. 452; The People v. Collins et al. 19 Wend. 56 : Union Pacific R. R. Co. v. Hall, 91 U. S. 355, and cases cited ; Williams, Petitioner, v. Co. Comr’s, 35 Maine 347 ; Stale v. Gorham, 37 Maine, 461; Dane v. Derby, 54 Maine, 95, and Walton v. Greenwood, 60 Maine, 363. "On a summary hearing on a petition for mandamus, this court will not determine the question of the constitutionality of the-law, involving the rights ■ of third persons, but will leave that question to be settled, when properly presented by parties to an action.” Smyth v. Titcomb, 31 Maine, 285. The contention, however, that the statute is in conflict with § 5, Art. 1, of the Constitution of Mame, is without any foundation. The constitution neither delegates, nor requires the legislature to delegate to magistrates the power of passing upon the question of probable cause. It has the right to withhold that power, if it sees fit, and prescribe instead the rules and conditions upon which they shall issue their warrants. That is precisely what the legislature has done in § 40, and this court has at least twice directly and explicitly declared its action to be constitutional. Gray v. Kimball, 42 Maine, 307 ; State v. Miller, 48 Maine, 576. And the law has often been indirectly sustained by the court, the last time in the recent case of State v. Dunphy, (Maine) 3 New England Rep. 827. cited: R. S., c. 132, § § 6, 11, 12; State v. Nephla, 35 La. 365; 2 G-reenl. Ev. 452; Munns v. Dupont, 3 Wash. C. C. 31; Foshay v. Furguson, 2 Denio, 617; Ulmer v. Leland, 1 Greenl. 135; Stone v. Orodcer, 24 Pick. 81; Flaherty v. Longley, 62 Maine, 420; State v. Miller, 48 Maine, 580; Stale v. Bartlett, 47 Maine, 392; State v. Wheeler, 64 Maine, 532; Harris v. Niagara Qo. Sup. 33 Hun, (N. Y.) 279; Vanhorne’s Lessee v. Dorrance, 2 Dallas, 304; Davis v. Go. Oonir's, 63 Maine, 398 ; High, Ex. Leg. Rem. §§ 42, 156 ; U. S. v. Seaman, 17 How. 225; U. S. v. The Oom. 5 Wall. 563; Secretary v. McGarrahan, 9 Wall. 298 ; Ex parte Newman, 14 Wall, 165; Ins. Go. v. Wilson, 8 Pet. 302; U. S. v. Peters, 5 Cranch, 135 ; Ex parte Bradstreet, 7 Pet. 648 ; Ex parte Many, 14 How. 24; Oom. v. Whiteley. 4 Wall. 522 ; Ins. Go. v. Adams, 9 Pet. 602; Sanger v. Qo. Qomr’s, 25 Maine, 294.