Bd. Of Sup'rs v. Melton

• Citation: 123 Miss. 615,86 So. 369
• Decision Date: 01 January 1920
• Docket Number: 21492
• Parties: Board Of Sup'rs Of Forrest County Et Al v. Melton Et Al.
• Court: United States State Supreme Court of Mississippi

86 So. 369

123 Miss. 615

Board Of Sup'rs Of Forrest County Et Al v. Melton Et Al.

No. 21492

Supreme Court of Mississippi

January 1, 1920

1 CERTIORARI. Purpose of petition for writ stated.

The petition for writ of certiorari is solely to enable the judge, to whom the applcation for the writ is made, to determine whether the writ should be granted, and is of no importance after the writ has been granted.

2. CERTIORARI, What constitutes record for trial of case removed to circuit court stated.

When a cause is removed to the circuit court by a writ of certiorari, the case to be tried by that court is made by the record removed to it from the inferior tribunal, and not by the allegations of the petition on which the writ is granted.

3 CERTIORARI. Dismissed, where court is without jurisdiction,

If a case removed to the circuit court by writ of certiorari is one of which that court is without jurisdiction, it should be dismissed on motion.

4 CERTIORARI. Procedure, on trial of case removed to circuit court stated.

In a case removed to the circuit court by a writ of certiorari, if no error of law appears from the record to have been committed on the trial of the case by the tribunal from which it was removed, the judgment of such tribunal must be affirmed. But if such an error does so appear, the judgment should be set aside, and the proper judgment entered, if apparent from the record, or the case may be tried anew on its merits.

5 CERTIORARI. Procedure on new trial on merits of case removed to circuit court same as trial de novo.

If a case removed to the circuit court by a writ of certiorari is there tried anew on its merits, the procedure is the same as that in cases tried de novo in ordinary appeals to the circuit court.

6. CERTIORARI. Under statute case may be removed from board of supervisors to circuit court on certiorari.

A case may be removed from a board of supervisors to the circuit court on a writ of certiorari under the provisions of section 91, Code 1906 (Hemingway's Code, section 73).

7. CERTIORARI. Administrative orders of inferior tribunals cannot be removed to and re-examined by circuit court on certiorari.

Mere administrative orders of an inferior tribunal cannot be removed to and be re-examined by a circuit court on a writ of certiorari, but only such as are of a judicial, or quasi-judicial, nature.

8. CERTIORARI. Order of another board may not be reviewed.

An order of another board or tribunal cannot be reviewed by the circuit court in a case removed to it from a board of supervisors, unless such order is the basis for a judgment rendered by the board of supervisors in a judicial proceeding.

HON. R. S. HALL, Judge.

Certiorari by W. R. Melton and others to the board of supervisors of Forrest county and others, to review an order requiring cattle to be dipped. From the judgment both parties appeal. Reversed, writ quashed, and case dismissed.

This is an appeal from a judgment rendered by the court below in a matter removed to it from the board of supervisors of Forrest county by a writ of certiorari.

The petition on which the writ was granted is quite lengthy, setting forth in great detail the history of the cattle tick eradication movement in Forrest county, from the election in 1914, in which Forrest county elected to come under the cattle tick eradication statutes, to the date of the filing of the petition, and alleging that by reason thereof such ticks had been eradicated from the county. The petition further alleges that, notwithstanding the freedom of the county from such ticks, the Mississippi live stock sanitary board, which board under the statutes has charge of the work of tick eradication---

"promulgated an order signed by its executive live stock inspector for the state of Mississippi... and sent same to each board of supervisors of twenty-three southern and southwestern counties in Mississippi, including the board of supervisors of Forrest county, which order is now on file in the office of the chancery clerk of said Forrest county,... reciting that the fact has been determined by the said live stock sanitary board that the Texas fever tick (Margaropus annulatns), which transmits the contagious and infectious disease known as tick fever, exists among cattle in parts of said counties, including a part of Forrest county, and that, acting under authority conferred by statute upon the Mississippi live stock sanitary board, and in compliance with the regulations of said board made and promulgated under authority of chapter 106, Laws of 1908, it is ordered and required that all cattle of the several quarantined areas in said counties, including the quarantined areas in said counties, and including the quarantined area in Forrest county, be dipped in arsenical solution every fourteen days until released from dipping by order of said board, and ordering and requiring that all cattle in the several counties not included within the quarantined

areas of such counties, including Forrest county, be dipped in arsenical solution every twenty-eight days until four dippings have been done. Said order further requires that each board of supervisors of the counties named in this order, including Forrest county, procure the necessary chemicals to be used in the dipping of cattle for the eradication of ticks, and employ a sufficient number of assistants and helpers of the county inspector appointed by the Mississippi live stock sanitary board, as required by chapter 167, Laws of 1916;... that pursuant to the aforesaid order of said live stock sanitary board the board of supervisors has employed assistants and helpers to the defendant, Lewis W. Batson, county inspector, and had purchased, or will continue to purchase, quantities of chemicals and materials for the purpose of carrying out said order, all at great expense to the county and to petitioners that said county inspector or assistants have given notice to petitioners and others in his community to dip their cattle every twenty-eight days for four times, pursuant to the order of said Mississippi live stock sanitary board."

The petition further alleges that there are no cattle ticks now in Forrest county and the community in which petitioners live, and that consequently the live stock sanitary board and the board of supervisors of Forrest county are without power to require the dipping of the petitioners' cattle; that the process of dipping is attended with great danger of injury, damage and death to cattle; that the vats in which they are dipped are filled and charged with a strong arsenical solution, which very frequently blisters and burns the cattle, causing their hide and skin to peel and fall off, causing them to lose in weight, and which very often kills them; that the work of dipping also causes great inconvenience, expense, and loss of time to petitioners; that the Mississippi live stock sanitary board and the board of supervisors are inferior tribunals under the law, and that their actions are subject to review by the higher courts by means of a writ of certiorari.

The prayer of the petition is: "That the court grant a writ of certiorari with supersedeas directed to the board of supervisors of Forrest county, in whose custody the aforesaid order of the Mississippi live stock sanitary board now is, requiring said board of supervisors to bring up and certify to this court the original of said order together with all orders of said board of supervisors, if any, passed by it since January 1, 1920, or since the date of said order of the Mississippi live stock sanitary board dated April 1, 1920, and all other orders, if any, passed by it since January 1, 1920, or since the date of said order of the Mississippi live stock sanitary board dated April 1, 1920, and all other orders, if any, of said Mississippi live stock sanitary board in its possession relating to tick eradication, the employment of inspectors and assistants, and the purchase of...