City of Clarksdale v. Harris

Decision Date10 June 1940
Docket Number34203
Citation196 So. 647,188 Miss. 806
CourtMississippi Supreme Court
PartiesCITY OF CLARKSDALE v. HARRIS

APPEAL from the circuit court of Coahoma county, HON. WM. A. ALCORN Judge.

Mandamus proceeding by Mrs. Frank Harris against the City of Clarksdale to require payment to the plaintiff of benefits from disability and relief fund for firemen and policemen. From an adverse judgment, the city appeals. Judgment reversed and petition for mandamus dismissed.

Reversed and dismissed.

W. W Venable, of Clarksdale, for appellant.

The circuit court was without jurisdiction because the findings of the Board of Relief and Disability Appeals is made final by the Statute, Chapter 55, Laws 1930, Sections 8 and 9, no appeal to the courts being provided for therein, and because the statute creates new rights and gives a specific remedy for their enforcement without right to appeal to the courts and where this is the case the remedy with its limitations is exclusive.

Hargrove v. Baskin, 50 Miss. 194; Fourth National Bank v Franklyn, 120 U.S. 747, 30 L.Ed. 825; Pollard v. Bailey, 87 U.S. 20, 22 L.Ed. 376; 1 Am. Jur. 411, sec. 12; 18 Am. Jur. 139, sec. 15. For illustrative cases see notes: 85 A. L. R. 672; 87 A. L. R. 603; 88 A. L. R. 912; 105 A. L. R. 1027.

Appeals or review by courts are not a matter of right but are creatures of statute so that if no review is granted none exists.

Worley v. Pappas, 161 Miss. 330; Steel v. Shirley, 9 S. & M. 382; Shapleigh Hwd. Co. v. Brumfield, 159 Miss. 175; Carroll v. Board of Police, 28 Miss. 38; Bearman v. Board of Police, 42 Miss. 237; Wright v. Edwards Hotel, etc., Co., 101 Miss. 470; National Exchange Bank v. Peters, 144 U.S. 570, 36 L.Ed. 545; Campbell v. Youngsen, 80 Neb. 322, 118 N.W. 1053; In re: Board of Commissioners of City of Superior, 196 Wis. 562, 221 N.W. 382; Phelps v. Board of Appeals of City of Chicago, 325 Ill. 625, 156 N.E. 826; Board of Finance v. First National Bank of Jeffersonville, 71 Ind.App. 290, 124 N.E. 768; 3 C. J. sec. 42, note 95.

Where a new right or remedy is created by the legislature, with respect to a subject within its power, failure to provide for a judicial review does not render the statute unconstitutional as affecting rights without due process of law or denying access to the courts.

Luther v. Borden, 7 How. 1; Doe v. Braden, 15 How. 635; Den. v. Hoboken Land and Improvement Co., 18 How. 272, 376, 15 L.Ed. 372; Commissioners of Immigration v. Ju Toy, 198 U.S. 253, 49 L.Ed. 1040; Lem Moon Sing v. U.S. 158 U.S. 538, 39 L.Ed. 1082; Hibbin v. Smith, 191 U.S. 310, 48 L.Ed. 195.

Where the law has confided to a special tribunal authority to hear and determine a matter arising in the course of its duties, a decision by it within the scope of its authority as to questions of fact is conclusive against collateral attack.

Kelly v. Wimberly, 61 Miss. 548; Wright v. Edwards Hotel Co., 101 Miss. 470; Hebbin v. Smith, 191 U.S. 310, 48 L.Ed. 195; Commissioners of Immigration v. Ju Toy, 198 U.S. 253; Gonzales v. Williams, 192 U.S. 1, 48 L.Ed. 317; Qumby v. Conlau, 104 U.S. 420, 426, 26 L.Ed. 800, 802; U.S. v. California, etc., Co., 148 U.S. 31, 43; 37 L.Ed. 354, 360; Bales and G. Co. v. Payne, 194 U.S. 106, 109, 48 L.Ed. 894, 895; Foley v. Harrison, 15 How. 44, 14 L.Ed. 766; Providence Rubber Co. v. Goodyear, 9 Wall. 989, 19 L.Ed. 569; Shepley v. Cowan, 91 U.S. 340, 23 L.Ed. 427; Moore v. Robbins, 96 U.S. 535, 24 L.Ed. 850; Hadden v. Merritt, 115 U.S. 25, 29 L.Ed. 333, 334; Lee v. Johnson, 116 U.S. 51, 29 L.Ed. 571; Bushnell v. Leland, 164 U.S. 684, 685, 41 L.Ed. 598, 599; Bates and G. Co. v. Payne, 194 U.S. 106, 48 L.Ed. 894.

There was no jurisdiction in the circuit court in a mandamus proceeding to set aside or ignore the findings and judgments of the Board of Relief and Disability and the Board of Relief and Disability Appeals, and to enter a judgment for them contrary to their own findings and judgments.

Writ of mandamus will not be issued to direct inferior tribunal to decide issues of fact in a particular way, when law has invested tribunal with original jurisdiction to decide the question.

City of Jackson v. McPherson, 158 Miss. 152; Love v. Lincoln County, 171 Miss. 450; Alex Loeb, Inc., v. Trustees, 171 Miss. 467; State v. School Board, 181 Miss. 818.

Writ of mandamus issues only to compel an inferior tribunal to act, but it cannot control discretion of inferior tribunal or dictate what its action shall be.

Alex Loeb, Inc., v. Board of Trustees, Pearl River Junior College, 171 Miss. 467.

In mandamus proceedings appellee cannot recover judgment for the sum, payment of which she seeks to have enforced.

American Oil Co. v. Bishop, 163 Miss. 249.

The court cannot in mandamus proceedings control the future action of the Board of Relief and Disability by ordering that they issue, in the future, monthly warrants for $ 75 since it is beyond the power of the court to issue mandamus to take effect prospectively.

Wood v. State, 169 Miss. 790.

Because a statute does not give a right to a judicial review does not confer upon a court jurisdiction to correct or change findings of fact made by the lower tribunal.

Woodward Iron Co. v. Dean, 217 Ala. 530, 117 So. 52; 60 A. L. R. 436.

Mandamus is not appropriate to review the action of a tribunal in any matter involving the examination of evidence and the decision of questions of law and fact since such a duty is not ministerial.

Ex parte Secombe, 19 How. 9, 15 L.Ed. 565; In re Humes, 149 U.S. 192, 37 L.Ed. 698; In re Pollitz, 206 U.S. 323, 51 L.Ed. 1081; McCrea v. Roberts, 89 Md. 238, 44 L. R. A. 485; Marcum v. Ballot Coms., 42 W.Va. 263, 36 L. R. A. 296; In re Rice, 155 U.S. 396, 39 L.Ed. 198; Crocker v. Superior Court Justices, 208 Mass. 162, 94 N.E. 369.

Petitioner avers that the evidence was uncontradicted and sustained her contention and so the entry of judgment against her was an error of law, so that, assuming the right to judicial review she had adequate remedy by certiorari and so mandamus would not lie.

Code of 1930, sec. 73; McHenry v. State, 91 Miss. 562; Bd. of Supr's v. Lee, 147 Miss. 99.

It was error for the court below to enter a judgment without hearing evidence, waiving question of jurisdiction heretofore discussed.

It is true that a demurrer was filed to the petition for mandamus which admitted all facts well pleaded.

There is no authority to make testimony or statements of witnesses exhibits to a pleading, and hence a demurrer does not admit the evidence.

Code 1930, secs. 526, 527; Quarles v. Hucherson, 139 Miss. 356; McKinney v. Adams, 95 Miss. 832; Dulaney v. Starke, 7 S. & M. 375; Panola County Bank v. J. O. Nessen Lbr. Co., 117 Miss. 593; First National Bank v. Adams, 123 Miss. 279; Barnes v. Jones, 139 Miss. 675, 43 A. L. R. 673; Pitts v. Baskin, 140 Miss. 443; Love v. Fidelity and Deposit Co. of Md., 162 Miss. 532; Hardeman v. English, 79 Ga. 387, 390; State v. Adams, 78 Ia. 292; Herrick v. Swomley, 56 Md. 4; Mesner v. Darling, 44 Mich. 438; Lipscomb v. Lyon, 19 Neb. 521; Kerr v. Lemsford, 31 W.Va. 677; Rounds v. State, 57 Wis. 52.

Fred H. Montgomery, of Clarksdale, for appellee.

The attempt to adjudicate rights of parties under Chapter 55, Laws 1930, Section 8, creating Board of Relief and Disability and Board of Disability and Relief Appeals, is contrary to and violative of Sections 14, 24, and 31 of the Constitution.

Such legislation disregards entirely constitutional and statutory provisions now in force, is contrary thereto, and is wholly and utterly void.

Instead of a trial by jury from the body of the county where the suit is tried, there was substituted a group of men called a board to try all cases arising under Chapter 55, supra. In a trial conducted according to the Constitution and statute laws, except Chapter 55 of the Laws of 1930, a jury would be drawn in regular course. The law which prohibits and prevents a trial by jury is contrary to one of the most sacred provisions of the Constitution and is void. Constant efforts are made to substitute make-shift methods for trials by boards of individuals other than by a jury; but no better system has yet been discovered for trial of causes than the jury system as practiced throughout the United States.

The Constitution makes no provisions for the disposition of personal and property rights by boards, however created.

Moreau et al., School Trustees v. Grandich, 114 Miss. 560, 75 So. 434.

Insofar as Chapter 55, supra, undertakes or is designed to compel litigants to try causes in a manner other than the way pointed out by the Constitution it is utterly void and of no effect.

Isom v. M. C. R. Co., 36 Miss. 300.

Mandamus is the proper remedy.

Buckley v. Roche, 4 P.2d 929; State ex rel. Haberlan v. Love, 89 Neb. 149.

There is no provision of law under the Constitution, which sanctions the trial of causes, civil or criminal, by a board. These functions have ever been confided exclusively to judges and juries.

In the case of Chicago, etc. R. R. Co. v. Moss & Co., 60 Miss. 641, the question here involved was before the court. The Legislature had adopted an act providing for the infliction of attorney's fees in cases brought by citizens of the state against corporations, where an appeal was prosecuted from lower court to the Supreme Court. The court condemned the legislation in no uncertain terms.

Railroad Co. v. Dodd, 105 Miss. 23 (43).

The action of the boards in assuming to adjudicate rights of the parties was coram non judice.

The demurrer interposed to amended bill confessed the truth of all allegations of fact.

The allegations of fact well pleaded in a declaration are confessed to be true on demurrer.

State v. Nichols, 106 Miss. 419; Polk v. Hattiesburg,...

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