Garraway v. State ex rel. Dale

• Citation: 184 Miss. 466,184 So. 628
• Decision Date: 23 January 1939
• Docket Number: 33527
• Court: Mississippi Supreme Court
• Parties: GARRAWAY v. STATE ex rel. DALE, DISTRICT ATTORNEY

184 So. 628

184 Miss. 466

GARRAWAY v. STATE ex rel. DALE, DISTRICT ATTORNEY

No. 33527

Supreme Court of Mississippi, Division A

January 23, 1939

November 28, 1938

Suggestion Of Error Overruled February 20, 1939.

APPEAL from the circuit court of Jefferson Davis county, HON. J. C SHIVERS, Judge.

Mandamus proceeding by the state, on the relation of Sebe Dale, District Attorney, against the Mayor and members of the Board of Aldermen of the Town of Prentiss, to compel enforcement of municipal ordinance, defended by V. B Garraway. From a judgment awarding the writ, V. B. Garraway appeals. On motion to dismiss appeal, to strike transcript of evidence from record, and to advance the case on the docket. Overruled.

Proceeding by the State of Mississippi, on the relation of Sebe Dale District Attorney, for a writ of mandamus against the Mayor and the several members of the Board of Aldermen of the Town of Prentiss to compel the abatement and removal of a building erected by V. B. Garraway, who was permitted to appear and plead. From a judgment awarding the writ, V. B. Garraway appeals. Reversed and petition dismissed.

Motion overruled. Reversed and petition dismissed.

Livingston & Livingston, of Prentiss, for appellee on Motion.

The motion to dismiss the appeal should be sustained. If appellant was entitled to take an appeal in this cause under Section 78 of Mississippi Code of 130, we maintain that he was limited to 30 days time after judgment in which to take the appeal under said section as he was permitted by the court below to appear and defend the suit after the Mayor and Board of Aldermen had refused to make defense to the petition filed for mandamus to compel said officials to perform their official duties with reference to the enforcement of the fire ordinance enacted by the Mayor and Board of Aldermen. The Mayor and Board of Aldermen of the Town of Prentiss refused to make any defense in the lower court and the appellant, V B. Garraway, having been permitted by the lower court to appear and defend the suit as provided by Section 78 only had thirty days in which to perfect the appeal.

It was well known to appellant that the Mayor and Board of Aldermen would not appeal for the reason that said board had refused to make defense to the suit in the court below, and well knew that it was his duty to execute the appeal within thirty days after the rendition of the judgment by the court below. This he did not do and is therefore barred from bringing this appeal as will be seen by reference to Sections 78, 79 and 80 of the Mississippi Code of 1930.

Certainly under no circumstances could appellant have appealed this cause after the expiration of 60 days from the date of the rendition of the judgment by the court below.

Section 80, Code of 1930.

We maintain that the appellant, V. B. Garraway, never had any standing in this suit as the mandamus petition sought to compel the Mayor and Board of Aldermen to enforce an ordinance of the Town of Prentiss, which ordinance fixed a fire limit in the Town of Prentiss and that the grievance sought to be remedied was simply to prohibit a building from being erected in said fire limits in direct violation of said ordinance.

Certainly the notice to the official stenographer to transcribe and make up her notes was given out of time and the transcribed notes are improperly in the record and should be stricken from the record without consideration of any kind.

Section 2351, Code of 1930.

Finally, we contend that the appeal should be dismissed but if we are mistaken in this, then the stenographer's notes should be stricken from the record because filed out of time, and if mistaken in this, then we respectfully request this court to advance this cause on the docket as provided by Section 3372 of Mississippi Code of 1930.

G. L. Martin, of Prentiss, for appellant on Motion.

We most respectfully submit that Mr. Garraway took his appeal in strict compliance with Sections 78, 79, 80 and 2323, Code of 1930.

Forrest County v. Clark, 163 Miss. 120, 140 So. 733.

We submit that the statute is not subject to construction. It is plain and unambiguous. It simply says that the taxpayer has the right of appeal after 30 days, if the municipal or other board does not exercise its right to appeal within that time and there is no restriction on his time after that. He can go on five months lacking a day after the 30 days and still get his appeal up.

Hamner v. Lbr. Co., 100 Miss. 349, 56 So. 466; Breland v. Lemastus, 183 So. 500.

It seems to us that even if the statute by any possible stretch of reason is subject to construction, the construction put upon it by the appellees is all out of reason and is monstrous. What reason could there be to make a statute hold that a taxpayer must be restricted to 30 days when all other litigants are given six months. It is my opinion that even if the board of supervisors or the mayor and board of aldermen do not exercise their right of appeal within 30 days and then the taxpayer does not appeal that before the six months have expired the municipal board could still get up its appeal, but that particular question is not here involved.

Appellees make some kind of argument to the effect that the stenographic notes should be stricken. We reply that notice was given the court reporter on the very same day, August 10, 1938, on which the appeal bond was filed and approved. We submit that Section 80 of the Code 1930 provides that this notice may be served 30 days after the filing of the appeal bond. The taxpayer has 30 days after the filing of his appeal bond during which to serve notice on the stenographer. Just how appellee can interpret this statute in any way except just what it says in the plainest kind of English is beyond us. In fact, the cognate sections 78, 79 and 80 of the code are written in the plainest kind of English and cannot be misunderstood, it seems to us. Section 3375 would give us the right, if there be any error in making this appeal.

As to the motion made by appellees to advance the case on the docket, appellants wish to state that while appellants do not apprehend any great public necessity for any advanced hearing, yet we do not care to stand in the way and simply submit the matter to the court.

Geo. L. Martin, of Prentiss, for appellant.

Mandamus is improper remedy and circuit court had no jurisdiction.

Ohlson v. Durfrey, 82 Miss. 213; Haskins v. Bd. of Suprs., 51 Miss. 409; C. J., Mandamus, sec. 56; Jefferson County v. Arrghi, 51 Miss. 667; State Board of Education v. West Point, 50 Miss. 638; Beaman v. Leake County Bd. Police, 42 Miss. 237; Attala Co. Bd. Police v. Grant, 17 Miss. 77, 47 Am. Dec. 102.

We do not find any Mississippi case where the district attorney has assumed to act for the state in going into a municipality and undertaking by the powerful writ of mandamus to coerce officials in the internal affairs of local municipal government where no state statute is involved.

Every adequate provision has been made to discipline recalcitrant municipal officers. If the district attorney felt that there was just ground, as evidently his petition avers, of flagrant disregard of public duty, why did he not invoke the ordinary remedies?

Sections 1065, 1066, 2903 and 2907, Code of 1930; State v. Glennen, 93 Miss. 836, 47 So. 550.

If the district attorney can go into a circuit court and invoke mandamus to force municipal officers, before whom there has never been lodged any official petition or complaint, and that is the case here, then it is that the office of district attorney becomes over night the most officious office under our government.

61 Miss. 141; Bd. of Suprs. v. State ex rel., 134 Miss. 180, 90 So. 593.

If what the district attorney alleges is true, then it seems to us quo warranto would lie, for if these officials have failed or refused to enforce a legal ordinance, they have forfeited their right to office. We say it is all a scheme to avoid the injunction proceedings and thus it is shown these private petitioners not only show lack of clean hands, but show they had ample and adequate remedy to protect their rights, if any they have, otherwise than by mandamus.

38 C. J., sections 272, 275; State ex rel. Wear v. Francis, 95 Mo. 44; High on Extra-Or. Remedies, sec. 337.

We submit that the circuit court heard the whole matter on all the facts and sat as the mayor and board of aldermen in determining what the facts were and what weight were to be given to them and determined what legal right petitioners had under the facts, all of which, we submit, was outside the jurisdiction of the circuit court on mandamus, for these facts and evidence existing in parol were first to be determined and some decision reached by the municipal officers.

Courts can't control discretion and won't interfere in affairs of a municipality.

18 L.R.A. sec. 38; Alger v. Seaver, 138 Mass. Rep. 331; People ex rel. Clapp, v. Listman City Com., 82 N.Y.S. 784; Clay City v. Roberts, 99 S.W. 651.

Mandamus will not lie to control discretion of public officers, boards, municipalities.

38 C. J., 258; Madison Co. v. Alexander, Walker 523; Attala Co. v. Grant, 9 S. & M. 77; Swan v. Gray, 44 Miss. 393; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; Bd. of Education v. West Point, 50 Miss. 638; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Monroe Co. v. State, 63 Miss. 135; Sullivan v. R. R., 85 Miss. 649; Cole v. State, 91 Miss. 628; Robinson v. Ittawamba Co., 105 Miss. 90, 62 So. 3; Greenwood v. Provine, 108 So. 284; Rankin Co. v. Lee, 113 So. 194; 158 So. 206; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287.

Conditions precedent to issuance of mandamus are: Petitioners must show a...