Henry, Ins. Com'r v. Donovan

• Citation: 148 Miss. 278,114 So. 482
• Decision Date: 07 November 1927
• Docket Number: 26446
• Parties: HENRY, INS. COM'R, v. DONOVAN et al. [*]
• Court: Mississippi Supreme Court

114 So. 482

148 Miss. 278

HENRY, INS. COM'R, v. DONOVAN et al. ^[*]

No. 26446

Supreme Court of Mississippi

November 7, 1927

(Division A.)

1. EQUITY. That solution of causes joined depends on same question of law and similar questions of fact does not warrant suit in equity to prevent multiplicity of suits.

That all causes of action joined depend, for their solution, on same question of law and similar questions of fact does not warrant resort to equity in order to prevent multiplicity of suits.

2 INJUNCTION. Bill to enjoin insurance commissioner against returning taxes collected for benefit of fireman's pension fund did not show remedy at law was inadequate (Laws 1924, chapter 189).

Bill by cities and others to enjoin insurance commissioner against returning to insurance companies taxes collected, under Laws 1924, chapter 189, imposing tax on business done by insurance companies to be used for fireman's disability and pension funds, and for recovery of money alleged to have been collected or for personal decree against him, held not to show that remedy at law was inadequate, since remedy by mandamus or by suit on defendant's bond was adequate, in absence of special circumstances which were not alleged to exist.

3 DISCOVERY. Bill to adjudicate amount held by insurance commissioner payable to complainant cities for their fireman's funds did not disclose ground for discovery (Laws 1924, chapter 189).

Bill praying that court ascertain and adjudicate proper amount of taxes held by insurance commissioner, payable to complainant cities for appropriation to their fireman's disability and pension funds. under Laws 1924, chapter 189, and for recovery of amount due, held not to disclose ground for discovery where it contained no allegation requiring answer disclosing amount of taxes collected, and showed no diligent attempt to secure information by other means and contained no allegation that defendant refused to give information.

4 ACCOUNT. Jurisdiction of equity over matters of account rests upon need of discovery, complicated character of accounts and existence of fiduciary relation.

Jurisdiction of court of equity over matters of account rests upon, need of discovery, complicated character of accounts, and existence of fiduciary or trust relation.

5. ACCOUNT. Bill to adjudicate amount insurance commissioner held for complainant cities' pension funds did not show that accounting was necessary (Laws 1924, chapter 189).

Bill praying that court ascertain and adjudicate proper amount of taxes held by insurance commissioner, payable to complainant cities for fireman's disability and pension funds, under Laws 1924, chapter 189, held not to show that an accounting was necessary to determine amount due so as to invest equity with jurisdiction.

6. APPEAL AND ERROR. Constitutional provision relating to reversing decree for jurisdictional error does not apply where circuit court has no power to permit complainants to join (Constitution 1890, section 147).

Constitution 1890, section 147, relating to reversing decree because of mistake of court below in assuming jurisdiction of cause, does not apply where circuit court has no power to permit complainants to join as plaintiffs in one action against defendant.

7. MANDAMUS. Several cities could not have joined in petition for writ of mandamus to compel insurance commissioner to pay fireman's pension funds (Laws 1924, chapter 189).

Several cities, entitled to taxes collected by insurance commissioner on business done by insurance companies, under Laws 1924, chapter 189, for appropriation to their fireman's disability and pension funds, could not have joined in one petition for writ of mandamus against insurance commissioner to compel him to pay same.

8. ACTION. Several cities could not have joined in action for personal judgment against insurance commissioner for amounts due them for fireman's pension funds (Laws 1924, chapter 189).

Several cities, entitled to taxes collected by insurance commissioner on business done by insurance companies in such municipalities, under Laws 1924, chapter 189, for appropriation to their fireman's disability and pension funds, could not have joined in one action at law for personal judgment against insurance commissioner.

Division A

APPEAL from chancery court of Hinds county, First district.

HON. V. J. STRICKER, Chancellor.

Suit by E. V. Donovan and others against T. M. Henry, Insurance Commissioner. From a decree overruling a demurrer to the bill of complaint, defendant appeals. Reversed, and bill dismissed.

Reversed, and bill dismissed.

REPORTER'S NOTE: Briefs by counsel on both sides deal learnedly and exhaustively with the merits, i. e., the constitutionality of the act in question. Since the opinion of the court is limited to the question of jurisdiction, we have confined our report of the briefs to that issue.

J. L. Byrd, Assistant Attorney-General, R. L. McLaurin and Watkins, Watkins & Eager, amicus curiae, for appellant.

I. MANDAMUS, THE EXCLUSIVE REMEDY. Section 2533 et seq., Hemingway's Code. Mandamus has been held the proper remedy to require a public officer to pay a valid claim, which has been properly allowed or audited. Beard v. Lee County, 51 Miss. 542; Jefferson County v. Arrighi, 51 Miss. 667; Cline v. Smith County, 54 Miss. 254; Kelly v. Wimberly, 61 Miss. 548; Honea v. Monroe County, 63 Miss. 171; Taylor v. Chickasaw County, 70 Miss. 87; Chatters v. Coahoma County, 73 Miss. 351; Jonestown v. Ganning, 97 Miss. 67; Hebron Bank v. Lawrence County, 109 Miss. 397.

The scope of the remedy by mandamus is all-comprehensive. See Williams v. Ramsey, 52 Miss. 851; Monroe County v. State, 63 Miss. 135; State v. Simmons, 70 Miss. 485; Adams v. Clarksdale, 95 Miss. 88; City of Jackson v. State, 102 Miss. 663; Brown v. Owens, 75 Miss. 369; Bourgeois v. Fairly, 81 Miss. 708; McHenry v. State, 91 Miss. 562; State v. Benson, 108 Miss. 779; State ex rel. v. Morgan, 141 Miss. 585; Toombs, Prosecuting Attorney, v. Sharkey, 140 Miss. 676; Hiawatha Gin Co. v. Mississippi Farm Bureau Association, 138 Miss. 685; Oldham v. Drainage Commissioners, 133 Miss. 505.

Injunctive relief never allowed where adequate remedy at law is provided. Anderson, Tax Collector v. Ingersoll, 62 Miss. 73; Sunflower Compress Co. v. Staple Cotton Association, 103 So. 802, 139 Miss. 200; Craft v. Homo-Chitto Lumber Company, 106 So. 440, 141 Miss. 156; Board of Supervisors of Wilkinson County v. Ash, 107 So. 763, 142 Miss. 686; McKee v. Hogan, 110 So. 775, 145 Miss. 747, 767.

No irreparable injury shown. 14 R. C. L. 332, 345, 346; Peyton v. Vardaman, 103 Miss. 164, 60 So. 129; 32 C. J. 66; Moss v. Jordon, 92 So. 689, 129 Miss. 598; 14 R. C. L. 346, 347.

Public officer will not be controlled in the performance of official duties by injunction. Pryor Motor Co. v. Hartfield (Ala.), 93 So. 524; 32 C. J. 241, 245.

Suit against the insurance commissioner is one against the state, which cannot be maintained except by its consent. 32 C. J. 246, n. 16; State v. Wisconsin Tel. Co., 169 Wis. 198, 203, 172 N.W. 225; 25 R. C. L. 413; 36 C. J. 915; Lehman v. State, 54 Miss. 562; Hill v. State, 79 Miss. 38, 39 So. 994; State v. Dinkins, 77 Miss. 824, 27 So. 832; Brown v. Ford, 122 Miss. 678, 73 So. 772; Mississippi Live Stock Board v. Williams, 133 Miss. 98, 97 So. 523; Ayers v. Board Trustees Leake County, 98 So. 841, 847, 134 Miss. 362; Lonstreet v. County (Mich.), 200 N.W. 248; Smith v. Doe, 111 N.Y.S. 525; Switzer v. Commissioners, 119 N.Y.S. 383; Alabama Girls School v. Adler (Ala.), 42 So. 116, 113 A. S. R. 58; Title Guaranty Co. v. Gurency, 205 F. 94; Bow v. Plummer (N. H.), 104 A. 35; McShane v. Murray (Neb.), 184 N.W. 187; Morrow v. Industrial School (S. C.), 113 S.E. 70.

II. THE COMPLAINANTS AND APPELLEES ARE WITHOUT INTEREST IN THIS CONTROVERSY AND THEREFORE HAVE NO RIGHT TO MAINTAIN THIS SUIT IN ANY COURT. Patty v. Williams, 71 Miss. 837; Conner v. Gray, 41 So. 186; 88 Miss. 489.

III. THE COMPLAINANTS AND APPELLEES DO NOT ALLEGE IN THEIR ORIGINAL BILL OF COMPLAINT SPECIFIC REQUIREMENTS ON THE PART OF THE MUNICIPALITY OF JURISDICTIONAL FACTS. Every presumption is against the pleader, and it will be assumed that the pleader has stated the case as strong as the facts may justify. Powell v. Stowers, 47 Miss. 577; Beckman v. R. R. Co., 12 So. 596; Romansky v. Thompson, 11 So. 828; Cleary v. Lowery, 51 Miss. 879; McSerin v. R. R. Co., 72 Miss. 1013, 18 So. 420; Nestor v. Davis, 100 Miss. 199, 56 So. 626; I. C. R. R. Co. v. Middleton, 109 Miss. 199, 68 So. 146; R. R. Co. v. Craig, 118 Miss. 299, 79 So. 102.

By demurrer the appellants did not admit conclusions of law but only admitted facts properly pleaded. State v. Nichols, 106 Miss. 419, 63 So. 1025; U. S. et al. v. Bank, 103 Miss. 91, 60 So. 47; Polk v. Hattiesburg, 109 Miss. 874, 69 So. 675; Batesville R. R. Co. v. Mims, 111 Miss. 574; Lumber Co. v. Morton, 111 Miss. 720, 72 So. 140.

The various municipalities in complying with the provisions of chapter 189, Acts of 1924, would be exercising inferior special statutory jurisdiction, and it is necessary that every fact necessary to give the inferior tribunal jurisdiction be stated. Burns v. Smith County, 102 Miss. 390, 59 So. 796; Rude v. McFerrin, 37 Miss. 71; McCreary v. Rhodes, 63 Miss. 308; McGee v. Beall, 63 Miss. 455; Board of Levee Commissioners v. Allen, 60 Miss. 935; Craft v. DeSoto County, 79 Miss. 618; State of Mississippi v. Morgan, 79 Miss. 659; Lake v. Perry, 95 Miss. 550, 49 So. 659.

Chapter 189, Mississippi Laws of 1924, imposes an additional and new obligation to tax, and before this imposition may be justified full and complete compliance with the law must be clearly and specifically averred. Smythe v Whitehead, 133 Miss....