Birdsong v. Grubbs, 37593
| Decision Date | 23 January 1950 |
| Docket Number | No. 37593,37593 |
| Citation | 208 Miss. 123,43 So.2d 878 |
| Court | Mississippi Supreme Court |
| Parties | BIRDSONG et al. v. GRUBBS et al. |
Jas. T. Kendall, Jackson, for appellants.
Geo. B. Grubbs, Mendenhall, for appellee.
This is an appeal by T. B. Birdsong, et al., from a judgment of the Circuit Court of Simpson County, granting, on the petition of George B. Grubbs, et al., a writ of mandamus against appellants.
The appellees brought this suit for the use and benefit of themselves, the people of Simpson County, and the State of Mississippi. They charged that T. B. Birdsong, as Commissioner of the Mississippi Highway Safety Patrol, about March 19, 1948, had unlawfully issued an order to all patrolmen, under no circumstances, to enforce the laws applicable to the transportation, possession, and sale of intoxicating liquor; that the commissioner and the patrolmen were under the duty to enforce these laws, in that the law specifically provides that: 'the powers and duties of the Highway Safety Patrolmen shall be to arrest without warrant any person or persons committing or attempting to commit any * * * breach of the peace * * * within their presence or view on any Highway of the State Highway System or the rights of way of such Highways and pursue any person committing such an offense to any place in the State of Mississippi where he may go;' and that their failure so to do had brought about a state of disgust, confusion, distress, and distrust, inasmuch as appellees were entitled to their rights and liberties and to the enforcement of the law of the land. They further complained of Message No. 91, but the same was not attached to the petition. They prayed for a mandate to the commissioner, 'requiring him to do and perform all those acts and things that the law makes mandatory by instructing each and every patrolman of the Mississippi State Highway Safety Patrol that said order or message No. 91, as aforesaid is wholly void and require them, the said patrolmen, to perform their duties as the law directs.'
Process was served on Birdsong in Hinds County. On his motion, this process was quashed. Thereupon, he made a motion to change the venue to the First Judicial District of Hinds County. This motion was in sufficient form. At that time, Birdsong alone was the defendant. Upon hearing the evidence, by order dated May 17, 1949, the court took the motion under advisement. Four days later, on May 21st, and before the court made a decision on this motion, an amendment of the petition was permitted so as to join several patrolmen as defendants, one of whom, James L. May, was charged to be an adult resident of Simpson County. Subsequently, on May 26th, the court overruled the motion for change of venue. The amended petition, in addition to naming the other defendants, alleged that the appellees were without remedy other than by mandamus directed to the defendants, compelling them to act in accordance with the mandates of the law, 'in that the defendant Birdsong be required to rescind any and all unlawful orders, messages, or instructions to each and every Highway Safety Patrolman, and that the other Defendants herein be required to execute their duties as the law directs.'
The only addition to the prayer of the original petition as to Birdsong was that he be required to perform these acts 'by executing his duties as the law directs;' and as to the other defendants, to 'require the other defendants herein' to perform their duties as the law directs.
A copy of Message No. 91, complained about, was attached to the amended petition, and is as follows:
'January 14, 1949
'To All Inspectors:
'Your very truly,
'S/S T. B. Birdsong
'Col. T. B. Birdsong
'Commissioner of Public Safety'.
Thereupon, appellants answered, and in their answer set up many matters in abatement and in bar. There were demurrers also. By the pleadings, the appellants timely raised the question of venue; that the appellees were without right to bring and maintain this suit; that there was no specific allegation to show any failure or refusal to perform any duty imposed by law; that there was no prayer that appellants be compelled to perform any specific duty; that mandamus will not lie for the purpose of enforcing a general course of conduct; that the Highway Safety Patrol has no general authority to enforce the prohibition laws; and that the individual patrolmen were neither proper nor necessary parties.
Section 1110, Code of 1942, fixes the venue in mandamus as follows: 'The petition for mandamus shall be filed in the circuit court of the county in which the tribunal, corporation, board, officer, or person made defendant, or some one or more of them, shall reside or be found; but if the judge of that court be interested, the petition may be filed in an adjoining circuit court district.'
According to the allegations and the proof, T. B. Birdsong is a public officer of the State. His official domicile is in the City of Jackson, in the First Judicial District of Hinds County. Besides, he is a resident, householder, and qualified elector thereof. Mandamus has been held to be purely a personal action. State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614.
Section 1433, Code of 1942, fixes the venue of actions in the circuit court generally and provides: '* * * If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, or if a public officer be sued in any such action, out of the county of his...
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Board of Ed. of Forrest County v. Sigler
...general or district attorney since the subject of the suit was a matter affecting the public interest. See also Birdsong v. Grubbs, 208 Miss. 123, 43 So.2d 878 (1950). Both the Madison County and the Hancock County cases were cited as authority in State ex rel. Cowan v. State Highway Commis......
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Van Slyke v. Board of Trustees of State Institutions of Higher Learning
...citizen in the State of Mississippi and therefore does not have a right to bring this suit. Birdsong v. Grubbs, 208 So.2d [Miss.] 123, 43 So.2d 878 (1950). Van Slyke contends that the Board of Trustees' denial of his request for documents under the Open Records Act constitutes an injury. Th......
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Wilson v. City of Laurel, 46495
...of Mississippi,' was a general request to comply with the laws of the state and as such was controlled by the case of Birdsong v. Grubbs, 208 Miss. 123, 43 So.2d 878 (1950), which held that a writ of mandamus cannot be issued for this purpose. The court further found that the petitioners ha......
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Stietenroth v. Monaghan, 41275
...ours.) The decision in the case of State ex rel. Trahan v. Price, supra, was followed and reaffirmed in the case of Birdsong v. Grubbs, 208 Miss. 123, 43 So.2d 878. The appellant, however, relies upon the case of Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242. In that case, Wirt Adams......