Chatters v. Board of Supervisors ( 1895 )

Whitfield, J.,

delivered the opinion of the court.

So far as the allowance of $150 “in cases in which the state failed in the prosecution,” etc., provided for by § 1996, code 1892, is concerned, it is sufficient to say that no “itemized account of the fees in each case ’ ’ is averred to have been presented to the circuit court or to the board of supervisors. Even if the averment that the allowance was legally made could be' treated as involving the averment that an itemized account was presented to the circuit court, it would remain true that no averment of presentation of such account to the board of supervisors appears, and, whether the board has discretion or not to refuse to allow this item of $150, it is clear that the itemized account must be presented to it. The allowance without this itemized account would be illegal. ‘ ‘As we understand it, the legal right referred to embraces not only the character of the claim, ’ ’ says the supreme court of South Carolina, in State v. Fuller, 18 S. C., 251, “but also the form in which it is presented; and this must be determined by the state of the law and facts existing at the time the proceeding was taken. The county treasurer is a public officer, and he cannot be compelled by mandamus to pay any claim, unless it is presented in the form required by law. ’ ’ To the same effect are People v. Elmira, 82 N. Y., 83, last part of opinion, and authorities in note to Ray v. Wilson, 14 L. R. A., p. 778. As to this item, therefore, the mandamus was properly denied. The other items in the account consist of charges the amount of which is specifically fixed by § 1995, and $50 allowed by the circuit court, in its discretion, under paragraph {d) of said § 1995.' As to these items, the board of supervisors has no discretion. The per diem for attendance on the circuit court, and the compensation for “ drawing jurors,” are fixed by the law, and the account sets out the number of days’ attendance, and the services rendered in drawing jurors. The $50 allowed under paragraph (d), § 1995, after being properly allowed by the circuit court, must be allowed by the board of supervisors. The board has, in such case, no discretion to. reject it. The order of the board of supervisors is “to be entered on the presentation of the circuit court’s order.” And these allowances may be made in both judicial districts of a county, when the county has two. Code 1892, § 2027a. These items, then, were properly allowed by the circuit court.

We have, then, this question presented: “ When mandamus is asked against the board of supervisors, commanding the board to allow an account, and issue its warrant for the payment thereof, when the account is composed of items part of which have been legally allowed and part illegally allowed, and ¡all this appears by a mere inspection of such account, and requires no investigation by proof, etc., in the proceeding for ¡mandamus, can the mandamus be awarded as to the items of the account which have been legally allowed ? ’ ’

There are many cases holding the party seeking relief by mandamus must specify “just what he wants, nothing more or less,” as held in School District v. Lauderbaugh, 80 Mo., 194; and that, when a mandamus is awarded for purposes partly legal and partly not, the court will not enforce it by a peremptory writ limiting its effect, but will quash it; for, it is said, “though the court will, for the purpose of justice, mold the rule for the writ, yet it cannot mold the -writ itself, ’ ’ as held in Hartshorn v. Ellsworth, 60 Me., 281. But both these cases are cases in which the practice was to issue an alternative writ. And, obviously, when an alternative writ issued, the greatest care was requisite in framing its mandatory clause, because the defendant was not required to look dehors that alternative writ to ascertain his duty. And nearly all the cases holding thus will be found to be cases based upon Rex v. Church Trustees of St. Pancras, 3 Adol. & E., 535, expounding the old practice in England, at a time when this writ was a prerogative writ, and not a writ of right, or cases in states wherein the practice is still assimilated to the old English practice and the alternative writ is still issued. See Tapping on Mandamus, p. 369; High on Extraordinary Legal Remedies, § 548, where it is very correctly said that the peremptory writ ‘ ‘ is necessarily limited, as to form, by the terms of the alternative writ; ” Merrill on Mandamus, §§ 296, 254-256; Florida Central & P. R. Co. v. State (Fla.), 13 South., 103, a case where an alternative writ issued.

But with us (chapter 89, code 1892) the writ is not a prerogative writ, but one of .right. The occasion which calls it into exercise must be an extraordinary one, and, in that sense, it is an extraordinary legal remedy. But the procedure in a mandamus proceeding (the extraordinary occasion existing warranting the relator in invoking the writ) is assimilated to that of any ordinary action at law. We have no alternative writ; no such useless makeweight negatives the efficiency of the writ here. The petition sets forth the facts ‘ ‘ which- constitute the plaintiff’s claim,” and the “same rules of pleading and proceeding applicable to actions in the circuit court shall be observed in this action, ’ ’ and the ‘ ‘ judgment of the court shall be framed to meet the circumstances of the case. ’ ’ Sections 2818, 2819, code 1892. Mr. Merrill, in his most valuable work on Mandamus, points out the injustice resulting from the strictness of the pleadings under the ancient view, and pronounces those-rules ‘ ‘ not applicable to this country. ’ ’ Merrill on Mandamus, § 251. See, also, his very just criticisms in note 1, p. 322, §260; and in §291 he puts the precise question we are considering, and, after stating the old rule, and citing the authorities supporting it, says: ‘ ‘ Some courts, however, have concluded to depart from the old rule, which was due to the fact-that no amendments as to material matters were allowed in such proceedings, and no longer require the relator to prove all his claims. They assert, and very properly, that there should he-no difference in this regard between a mandamus and any other proceeding, and that this remedy should be applied rationally. ’ ’ This view has been acted on by this court in Honea v. Board, 63 Miss., 171, and is unquestionably the true view.

The judgment is reversed, demurrer overruled, and the cause remanded.