Hiawatha Gin Co. v. Mississippi Farm Bureau Cotton Ass'n

• Decision Date: 23 March 1925
• Docket Number: 24766
• Parties: HIAWATHA GIN CO., v. MISSISSIPPI FARM BUREAU COTTON ASS'N. [*]
• Court: Mississippi Supreme Court

103 So. 345

138 Miss. 605

HIAWATHA GIN CO., v. MISSISSIPPI FARM BUREAU COTTON ASS'N. ^[*]

No. 24766

Supreme Court of Mississippi

March 23, 1925

Division B

1 BAILMENT. Inspection of books of public gin limited to interested persons making specific application showing rights to be protected.

Section 4750, Hemingway's Code (chapter 132, Laws of 1908), does not require a public gin to submit all of its books and records to any person who desires to see them. A person must have an interest to be affected by such books and records before he is entitled to inspection, and his application for such an inspection must be specific and reasonable, and must show a particular right or rights which he is seeking to preserve or protect by such inspection.

2 BAILMENT. Person having enforceable contract to purchase all cotton of particular persons has sufficient interest to have inspection of books of public gin of their community.

A person who has a contract in law and enforceable by suit to purchase at the market price all cotton of a particular person or persons, has such interest in the cotton, in a proper case, as to make a reasonable inspection of the books of the public ginner in the community, where such cotton grower lives and is likely to have ginned his cotton a right enforceable by law.

3. MANDAMUS. Required allegations of petition for mandamus to inspect records of public ginner stated; petition for mandamus must disclose with certainty facts entitling to relief.

Mandamus will not be granted on a general petition alleging that a petitioner has contracts with numerous unnamed persons scattered throughout the state to purchase cotton, and that the petitioner does not know whether his customers are delivering the cotton according to contract or not. All petitions must disclose with reasonable certainty the facts entitling to relief. Under the statute above referred to, the location of the gin, the records of which an inspection is desired, and the names of the persons with whom contracts exist should be alleged.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds County, HON. W. H. POTTER, Judge.

Suit by the Mississippi Farm Bureau Cotton Association against the Hiawatha Gin Company for mandamus. After denial of application to remove to federal court, and overruling defendant's demurrer to petition, judgment was entered for plaintiff, from which defendant appeals. Reversed, demurrer sustained, and cause remanded.

Judgment reversed, and demurrer sustained, and cause remanded.

Watkins, Watkins & Eager, for appellant.

I.

THE PETITION FOR REMOVAL TO THE FEDERAL COURT SHOULD HAVE BEEN GRANTED. State of Washington v. City of Tacoma, 244, F. 989; Lousel, U. S. Marshal v. Mortimer (C. C. A. 5th Cir.) 277 F. 882; Stevens v. Ohio State Tel. Co., 240 F. 759; In re Lennon, 166 U.S. 548, 41 L.Ed. 1110; Burke v. Alcott Water Co., 33 L. R. A. (N. S.) 1015 Ann. Cas. 1912D, 108; Washington v. Tel. Co. (2d Ser.), F. Rep. vol. 1, 327.

II.

APPELLEE NOT AN INTERESTED PERSON. Section 4750, Hemingway's Code. The appellee was not such an interested person as was contemplated by the statute. The appellee did not own any of the cotton which it had contracted to receive from its members, and which its members had contracted to deliver to it. The contracts were purely executory. The contract with its members was one under which they were obligated to deliver to the appellee cotton produced during the years mentioned, and the appellee was under obligation to market the cotton for its members to the best advantage. It is, therefore, perfectly plain that before the contract was executed by the member making delivery the appellee had no kind of right, title, or interest in or to any specific bale of cotton, nor did it have any lien thereupon.

THE statute was never intended to cover the situation presented by this petition. In this connection, we call your Honor's attention to the following authorities maintaining the view which we invoke in this case, that a general statute passed for a specific purpose, for the remedying of a well-known established evil, should not be extended to a state of facts not falling within the reason of the passage of the statute. Enochs v. State, ex rel. Roberson, 128 Miss. 361; Henry, Ins. Commissioner v. State, 130 Miss. 855.

When the statute now under construction was enacted there was no such thing as a co-operative purchasing or selling association. An organization of this kind is something novel; its exact status has not yet been defined by our court; but such an association was not within the contemplation of the law when section 4750 of Hemingway's Code, was passed.

III.

APPELLEE DOES NOT ALLEGE FACTS SHOWING THAT IT IS ENTITLED TO THE RELIEF PRAYED FOR. (a) The petition is indefinite and uncertain, and every presumption taken against the pleader. The petition in this case should have been dismissed, if for no other reason than that the plaintiff's petition, under no circumstances, states a cause of action. The petition does not state that a single member of appellee's association failed to deliver all the cotton which it contracted to deliver. Before a litigant in a court of law or equity is entitled to relief, such litigant must state a cause of action; that is to say, must state a legal wrong entitling such litigant to a remedy. The appellee in this case does not state that it has suffered any wrong or injury; it does not state that a single one of its members has failed to deliver all the cotton to which it was entitled. Out of this failure on the part of appellee there grows a presumption that every customer and subscriber of the appellee has delivered to it all of the cotton to which the appellee is entitled. In other words, every presumption is against the pleader; it is presumed that the pleader states his cause of action in just as strong language as the case will permit of. The authorities are as follows: Powell v. Stowers, 47 Miss. 577; Odom v. G. & S. I. R. R. Co., 57 So. 626, 101 Miss. 642.

THE same rule is applied in courts of equity. R. R. Co. v. Middleton, 68 So. 146, 109 Miss. 199; Y. & M. V. R. R. Co. v. Craig, 79 So. 102, 118 Miss. 299.

THErefore, in this case it may be taken as conceded that the appellee could not have stated its cause of action any stronger than it has; that is to say, that the appellee could not state either that it had not received all the cotton to which it was entitled, or that, if it had, not any of it had passed through the appellant's gin; therefore, applying the rule, it may be taken for granted that the appellee's allegations legally are just as if it had alleged that it had received all the cotton to which it was entitled, or that none of it had passed through the appellant's gin. The court below made the fatal error of overlooking the fact that the appellee never once alleged harm or damage.

But, to go a step farther; For the same reasons hereinbefore pointed out, the appellee's pleadings are uncertain. The rule in respect to certainty of pleadings is the same both at law and in equity, and the authorities are as follows: Prestige v. Pendleton, 24 Miss. 80; Carter v. Lyman, 33 Miss. 171; Perkins v. Sanders, 56 Miss. 733; Watts v. Patton, 66 Miss. 54; Adams v. Griffin, 85 Miss. 1; Delta Cotton Oil Company v. Natchez Cotton Oil Mill, 101 So. 793.

(b) The writ of mandamus will never issue except as a matter of imperative necessity. 18 R. C. L., Sub. Mandamus, par. 36 and par. 41; Gray v. Mullins, 113 P. 694, 15 Cal.App. 118; George S. Chatfield Co. v. Reeves, 86 A. 750, 87 Conn. 63, L. R. A. 1916D, 321.

To warrant a court in granting an extraordinary writ of mandamus, it must appear that the relator had a clear legal right to the performance of a particular duty, and that the law affords no other adequate or specific remedy. State v. Atlantic Coast Line R. Co., 44 So. 213, 53 Fla. 650, 13 L. R. A. (N. S.) 320, 12 Ann. Cas. 350; People v. Chicago & E. I. R. Co., 104 N.E. 831, 262 Ill. 492, L. R. A. 1915D, 486; Kennedy v. Town of Normal, 145 Ill.App. 523; State v. Witerowd, 91 N.E. 956, 174 Ind. 592, 30 L. R. A. (N. S.) 886, rehearing denied, 92 N.E. 650, 174 Ind. 592, 30 L. R. A. (N. S.) 886; Town of Windfall City v. State, 92 N.E. 57, 174 Ind. 311; Edgerton v. Kirby, 72 S.E. 365, 156 N.C. 347; City of Shawnee v. City of Tecumseh, 150 P. 890, 52 Okla. 509; Putnam Foundry & Mach. Co. v. Town Council of Barrington, 67 A. 733, 28 R. I. 422; State v. Thompson, 192 S.W. 349, 118 Tenn. 571, 20 L. R. A. (N. S.) 1; State v. Hempstead, 78 A. 442, 83 Conn. 554, Ann. Cas. 1912A, 927; People ex rel. O'Brien v. Butler, 105 N.Y.S. 631, 120 A.D. 751; State v. Northern P. R. R. Co., 102 P. 24, 53 Wash. 370; Ice v. Board of Canvassers of Marion County, 63 S.E. 331, 64 W.Va. 544; State v. Icke, 118 N.W. 196, 136 Wis. 583, 20 L. R. A. (N. S.) 800; State v. Waggensen, 122 N.W. 726, 140 Wis. 265, 133 Am. St. Rep.1075; State v. District Board of Joint School Dist. No. 6 of Towns of Plymouth, Wonewoc, and City of Elroy, 156 N.W. 477, 162 Wis. 482, L. R. A. 1916D, 399; Owen County Council v. State, 95 N.E. 253, 175 Ind. 610; City of Blackwell v. Cross, 98 P. 905, 22 Okla. 748; Judgment (Civ. App. 1906) 96 S.W. 774, Reversed; Caven v. Coleman, 101 S.W. 199, 100 Tex. 467; Congore v. Robison, 135 S.W. 110, 104 Tex. 141; Washington v. Pacific Tel. Co., 1 F. (2d Ser.) 327.

We now refer to the following adjudications from this court; Clayton v. McWilliams, 49 Miss. 311; Hardee v. Gibbs, 50 Miss. 802; Haskins v. Scott County, 51 Miss. 406.

We respectfully submit that the high writ of mandamus, issued as part of the sovereign power of the state itself cannot be exploited by a corporation as a part of its auditing system that this high prerogative writ will not be...