Hagan v. State
| Decision Date | 11 May 1922 |
| Docket Number | 1 Div. 226. |
| Parties | HAGAN ET AL. v. STATE EX REL. BATCHELOR. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Petition for mandamus by the State of Alabama, on the relation of G B. Batchelor, against John D. Hagan and others, as members of the Board of Revenue and Road Commissioners of Mobile County. From a judgment granting the writ, respondents appeal. Affirmed.
Gordon & Edington, of Mobile, for appellants.
Stevens McCorvey, McLeod & Goode, of Mobile, for appellee.
In reference to the tick eradication activities of the state and of the county of Mobile, the board of revenue and road commissioners took this action on October 3, 1921:
The petition concluded with prayer for any other and further relief to which the facts averred gave right.
The alternative writ, issued by direction of one of the circuit judges of the circuit pursued, in substance, the quoted prayer of the petition; likewise with respect to the peremptory writ, adjudged due after hearing on pleading and proof.
The remedy by mandamus, appropriate to compel such bodies as respondents to observe the statutory system for the eradication of cattle fever ticks, is expressly provided in section 13 of the act approved February 7, 1919 (Gen. Acts, p. 32). That section provides that the writ may issue "to compel a faithful compliance with this and all other laws cognate hereto."
Consistent with the general prayer in the petition, the court issued the alternative writ. The omission particularly to ask that writ did not prejudice respondents, since the alternative writ was issued. The alternative writ required appearance, on a certain day before the court, not naming the circuit judge. The notice of time and place for appearance served its purpose. If not as apt or definite as it might have been to meet the provisions of section 13 of the act of 1919, no prejudice attended the fault.
It is insisted that the prayer quoted, the alternative writ, and the peremptory writ awarded were and are too indefinite, too general, too uncertain, in respect of the matter or matters sought to be required to conform to the rule that mandamus only issues to compel the performance of specific acts-a rule stated in State ex rel. v. Railway Co., 59 Ala. 321, 323, among others cited on brief for appellant. That rule is, of course, established. Where, however, the duty to perform an act requiring the exercise of judgment or discretion is imposed, mandamus will issue to set the judgment or discretion in motion and enforce its proper exercise, so without directing the manner of its exercise. Mobile Ins. Co. v. Cleveland, 76 Ala. 321, 324; State ex rel., etc., v. Mobile Board, etc., 180 Ala. 489, 493, 494, 61 So. 368.
In undertaking officially to suspend all activities under the Tick Eradication Law and attempting to withdraw all means for carrying on the work enjoined by the act of 1919, supra, the county body and its members refused to observe the mandate of the law; declined to perform the function the law required of them in the premises. The act of 1919, itself imposed the tick eradication regulations upon every county in the state that "shall be at any time partially or completely tick-infested" (section 1); and Mobile was and is one of these counties. The county bodies, boards of revenue or commissioners, are left no discretion as to the imposition or suspension of that system of laws in their respective counties, it being the duty of such bodies "to make adequate appropriations or provision to execute in good faith" laws that define the system, prescribe the measures and means to be taken, and impose the functions upon the boards, officers, and agents described in the laws. Outlays of funds from the county treasuries or depositaries are necessarily required to meet the obligations imposed. The service commanded and the design of the system could not be otherwise afforded. The absence of sufficient funds with which to discharge the duties thus enjoined upon the boards or courts of county commissioners is a consideration that would excuse the discharge of those duties to the extent only that such funds were not available; but the excuse, entirely or pro tanto, the duty's performance, because of lack of funds, this matter of defense must be appropriately asserted and supported. State ex rel. v. Board, etc., 180 Ala. 489, 498, 61 So. 368; 26 Cyc. pp. 319, 320; 13 Ency. Pl. & Pr. p. 730. This excuse or defense must not, however, be created by an arbitrary or capricious exercise of the board's discretion and powers in the management and control of the county's other functions and activities.
With respect to the measure of "appropriations or provision" for a faithful discharge of the duties enjoined, a qualified discretion is reposed in the county governing bodies. These bodies are bound to supply the means with which to construct or install the number of dipping vats prescribed by the state and federal officers or agents. Sections 2 and 3, act approved February 7, 1919 (Gen. Acts p. 30). The expenditure necessary to perform this duty is a consideration for the boards of revenue or courts of county commissioners. Similarly as to the chemical solution in filling, replenishing, or employing the vats for dipping purposes-the requirements in that respect, both in composition and quality, being directed or prescribed by the state and federal boards, officials or agents engaged in the tick eradication service. The number and compensation of "inspectors" is...
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