Johnson v. Bruce

• Decision Date: 04 January 1937
• Docket Number: 32481
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. BRUCE et al

171 So. 685

177 Miss. 581

JOHNSON v. BRUCE et al

No. 32481

Supreme Court of Mississippi

January 4, 1937

Division B

Suggestion Of Error Overruled, February 1, 1937.

APPEAL from the circuit court of Leflore county HON. S. F. DAVIS Judge.

Mandamus proceeding by Eugene J. Johnson against Arthur Bruce treasurer, and others. From a judgment sustaining defendant's demurrer to the petition and dismissing petition, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Pat D. Holcomb, of Clarksdale, and Osborn & Lott, of Greenwood, for appellant.

It is respectfully submitted that the contentions of the defendant found in the demurrer, which was sustained by the learned lower court, is without logic, reason or any legal precedent to sustain any one of the causes therein alleged.

The complete scheme for the collection of bonds is found in section 24 of chapter 195 of the Laws of 1912, as amended by section 14 of chapter 269 of the Laws of 1914; and it is submitted, had plaintiff joined the board of supervisors of Leflore and Carroll counties, respectively, and the sheriffs of the said respective counties, the defendants would have yelled, misjoinder. The complete scheme is outlined by the laws aforesaid, and the board of supervisors have no duties to perform, except to make the levy in accordance with section 4470 a ministerial duty. There is no reason under the law, and for no practical purpose, to make the board of supervisors a party to the action. The board of supervisors are not charged with official inaction. The matter of making the tax assessment is exclusively within the jurisdiction of the commissioners.

Section 4472, Code of 1930; Anderson v. Robins, 161 Miss. 604.

It is respectfully submitted that the scheme is contemplative of simplifying procedure, and that the commissioners are solely responsible, to interested parties. If others in the scheme of things are derelict in their duties, it first evolves upon the commissioners to see to it that said official inaction is rectified, and should the commissioners be delinquent in the performance of that official duty, imposed by statute, then mandamus against the commissioners is the proper remedy.

Sections 4492, 4493, Code of 1930; Anderson v. Robins, 161 Miss. 614; Robins v. Donovan Creek Drainage District No. 2, et al., 152 Miss. 872.

It is therefore respectfully submitted that the defendants are the only proper parties to this proceeding and the learned lower court was in error in holding that the board of supervisors and sheriffs of Leflore and Carroll counties, respectively, were necessary parties. Too, as a matter of procedure, nonjoinder cannot be raised by demurrer.

Section 515, Code of 1930; Aven v. Singleton, 132 Miss. 256, 96 So. 165.

The commissioners are required to see that those in the scheme of things for the collection of the assessments are not derelict in their duties. The law imposes upon them the duty to see to it that an assessment is levied annually and collected. If the commissioners have been delinquent in this duty, as is charged in the petition, then, of course, mandamus is the proper remedy to coerce the performance of the duty specially enjoined as a duty resulting from their office.

Sections 2348 and 4492, Code of 1930; Anderson v. Robins, 161 Miss. 614; Robins v. Donovan Drain. Dist., 152 Miss. 882.

Section 4492 of the Mississippi Code of 1930 provides "and the Board of Commissioners shall see to it that an assessment is levied annually, and collected under the provisions of this article."

Petitioner charges that the commissioners have wrongfully neglected their duties, which is sufficient under section 2348, Mississippi Code of 1930, and too, petitioner tracted Section 4492 of the Mississippi Code of 1930, which specifically provides the duties of the commissioners and charged the said commissioners with failing and refusing to perform those duties.

Anderson v. Robins, 161 Miss. 604; section 2348, Code of 1930.

This court has held that mandamus is the proper procedure to compel the commissioners to pay a judgment.

Anderson v. Robins, 161 Miss. 614; Section 4493, Code of 1930.

Arthur Bruce and H. C. Mounger, both of Greenwood, for appellee.

It is certainly not the duty of the commissioners to make the annual tax levy, but clearly the duty of the boards of supervisors, by an order on their minutes; and it is clearly not the duty either of the commissioners or the treasurer to collect said taxes, but clearly the duty of the sheriffs and tax collectors.

Section 4472, Code of 1930; Anderson v. Robins, 161 Miss. 614, 137 So. 476.

As we understand the law, mandamus must be brought for failure to pay some certain specific amount or debt, and the specific amount in this instance is not stated.

Chatters v. Board of Supervisors, Coahoma County, 73 Miss. 351, 19 So. 107.

The county treasurer is a public officer, and he cannot be compelled by mandamus to pay any claim unless it is presented in the form required by law.

People v. Town Auditors of Elmira, 82 N.Y. 83; Ray v. Wilson, 14 L.R.A. 778, 10 So. 613.

The petition shows upon its face that the bonds and interest maturing ahead and prior to said petitioner's bonds and interest coupons have not been paid, and the issuance of the writ of mandamus upon said petition would have the effect of giving a preference to petitioner, to which he is clearly not entitled under the law.

First National Bank of Meridian v. Com'rs of Lake Cormorant Drain. Dist., 167 Miss. 354, 147 So. 807; Wood v. State, 169 Miss. 790, 142 So. 747.

The right to invoke the aid of a court to compel the performance of an official duty cannot as a general rule arise until the officer is in actual default. Mandamus will not ordinarily be granted in anticipation of a supposed omission of duty, however strong the presumption may be that the person whom it is sought to coerce by the writ will refuse to perform his duty when the proper time arrives.

18 R. C. L., Mandamus, sec. 36, page 122.

To pay the bonds of the relator would work a preference in his favor over the past due bonds of other holders thereof, which is clearly not the law, as all bonds should be paid pro rata.

First Nat. Bank v. Com'rs of Lake Cormorant Drain. Dist., 167 Miss. 354, 147 So. 807.

The requests for the levying of the assessments and the sufficiency thereof is a matter to a considerable extent in the discretion of the commissioners.

Anderson v. Robins, 161 Miss. 614, 137 So. 476; Madison County Court v. Alexander, Walker 523; Board of Supervisors v. Lee, 147 Miss. 99, 113 So. 194; Selig v. Price, 167 Miss. 612, 142 So. 504.

Section 4470 of the Mississippi Code of 1930 provides that the board of supervisors shall make a tax levy, and section 4471 of said code provides that it is the duty of the clerk of the board of supervisors to extend the amount of the said levy on the assessment roll, and the same section provides that any owner of real property within the district may by mandamus compel the compliance by the board of supervisors with the terms of the foregoing section. By analog, it would appear that the mandamus should be directed to the board of supervisors.

Nowhere in the petition is it averred that said bonds and interest have been reduced to judgment.

Crenshaw v. Jackson, 122 Miss. 711, 84 So. 912; Lawrence County v. City of Brookhaven, 51 Miss. 68; Portwood v. Board of Supervisors, 52 Miss. 523; Anderson v. Robins, 161 Miss. 614, 137 So. 476.

There is no allegation in the petition that the assessment of benefits of the sub-drainage district has not been exhausted.

Beard v. Board of Supervisors, 51 Miss. 542; Mayor v. Lord, 19 L.Ed. 706; Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579; 18 R. C. L., Mandamus, sec. 208, page 281; Heine v. Levee Com'rs., 19 Wall. 655, 22 U. S. (L. Ed.) 223; Coy v. Lyons, 17 Ia. 1, 85 Am. Dec. 539; Badger v. New Orleans, 49 La. Ann. 804, 21 So. 870, 37 L.R.A. 540; Attala Board of Police v. Grant, 9 Sm. & M. 77, 47 Am. Dec. 102; Davenport v. Dodge County, 105 U.S. 237, 26 U. S. (L. Ed.) 1018.

While it is true the petition states that earnest and constant demand has been made upon them to pay the said bonds in default, it is nowhere stated that these bonds have been presented for allowance or rejection by said board. We claim that either a judgment of some court or a judgment or allowance or disallowance by the board of commissioners is a prerequisite to a mandamus. And, further, that this judgment can be shown only by the minutes of said board of drainage commissioners. Mandamus is the proper remedy to enforce payment of valid claims against counties, which have been audited and allowed.

Beard v. Lee Co., 51 Miss. 542; Klein v. Smith Co., 54 Miss. 254; Jefferson Co. v. Arrighi, 51 Miss. 667; Honea v. Monroe County, 63 Miss. 171; Kelly v. Wimberly, 61 Miss. 548; Taylor v. Board of Supervisors, 70 Miss. 87, 12 So. 210; Board of Police v. Grant, 9 Sm. & M. 77.

The petitioner has a plain, adequate and complete remedy at law.

The People v. Mayor, City of New York, 25 Wend. 680; Anderson v. Robins, 161 Miss. 614, 137 So. 476.

Mandamus is an extraordinary writ, and not to be resorted to where the purpose can otherwise reasonably be accomplished.

McHenry v. State, 91 Miss. 562, 44 So. 831, 16 L.R.A. (N.S.) 1062; 18 R. C. L., Mandamus, sec. 44, page 131, and sec. 56, page 140; Secretary of Interior v. McGarrahan, 9 Wall. 298, 19 U. S. (L. Ed.) 579; State v. North American Land, etc Co., 106 La. 621, 31...