McGraw v. Board of Sup'rs of Winston County

• Decision Date: 18 April 1921
• Docket Number: 21378
• Citation: 87 So. 897,125 Miss. 420
• Parties: MCGRAW v. BOARD OF SUP'RS OF WINSTON COUNTY
• Court: Mississippi Supreme Court

87 So. 897

125 Miss. 420

MCGRAW v. BOARD OF SUP'RS OF WINSTON COUNTY

No. 21378

Supreme Court of Mississippi

April 18, 1921

APPEAL from circuit court of Winston county, HON. T. L. LAMB, Judge.

1 HIGHWAYS. Balance due contractor not subject to lien under statute by filing claim with board of supervisors.

The public roads and property of a county are not subject to the lien created under section 3074, Code of 1906 (Hemingway's Code, section 2434), in favor of laborers and subcontractors, and by filing with the board of supervisors a notice, claiming a lien on the balance in the hands of the county authorities to the credit of the principal contractor of such roads, a subcontractor can acquire no lien on such balance.

2 HIGHWAYS. Mandamus. Adjudicated balance due road contractor assignable; assignee of road contractor may compel issuance of warrant for balance on contract.

When a contractor has construed public roads in a county or subdivision thereof, and such roads have been completed and accepted, and the balance due such contractor for the construction of the roads has been finally adjudicated by the board of supervisors, and there only remains the duty of ordering the issuance of a warrant for this balance, the contractor may assign this balance due to him, and the assignee thereof may maintain mandamus to compel the board of supervisors to issue to him a warrant for the balance so assigned.

HON. T L. LAMB, Judge.

Application for writ of Mandamus by J. D. McGraw against the board of supervisors of Winston county to compel the issuance of a warrant for a payment of money. From a judgment of dismissal petitioner appeals. Reversed and remanded.

Cause reversed and remanded.

Jones &amp Jones, for appellant.

The issuance of a warrant or order upon a claim properly audited and allowed by the board of supervisors is usually regarded as a ministeral duty, which may be enforced by mandamus. 26 Cyc., 315; Kelly v. Wimberly, 61 Miss. 548.

The circuit court has unquestioned authority to require subordinate judicial officers to perform any plain duty imposed by law. The writ of mandamus may issue to require a subordinate court to carry into effect its own order, 18 R C. L., paragraph 245. Mandamus will not lie to require a court to determine a discretionary matter in a particular way unless there has been an arbitary exercise of discretion. Clarke v. West, 198 S.W. 1111.

Mandamus does not lie to control judicial discretion, except when this discretion has been abused; but it may be used as a remedy where the case is outside that discretion and outside the jurisdiction of the court, etc. Virginia v. Rivers, 100 U.S. 313, 24 L.Ed. 667.

When the board of supervisors passed an order on the first Monday of July, 1917, it had reached the limit of its discretionary power, and having there audited and allowed F. D. Harvey & Company in payment of the matter adjudicated, and this they did in fact until it came to McGraw's assignment or order, whereupon it arbitrarily refused to issue to McGraw its warrant for moneys held in the treasury of the county for this purpose, because it appeared to it that F. D. Harvey & Company owed other debts the members of the board preferred to see paid.

The case of Hendrix v. Johnson, 45 Miss. 644, cited by appellee was one wherein the board of supervisors audited and allowed an account ordered a warrant issued upon the treasury, and the treasurer refused to honor the warrant, the circuit court ordered the writ of mandamus to issue, and the treasurer appealed the case to the supreme court upon a bare record of the pleadings, and the supreme court very properly held in the language quoted by appellee. It is in no way analogous to the case here, as this case comes before this court, with a full record, disclosing every matter having a bearing upon the case, and a reading of the record will disclose in detail the exact status of this case.

In the case of Portwood v. Montgomery County, 52 Miss. 523, the board of supervisors exercised its discretionary power in refusing a claim when presented, and the relator had his day for an appeal from such refusal. It differs from the instant case in that the board of supervisors considered the claim of F. D. Harvey & Company, audited same and allowed it, and McGraw stands in the same position exactly as F. D. Harvey & Company did with a judgment, which the board of supervisors have already exercised a discretionary power and allowed, but, now having allowed it refuse to pay it. The order of the board of supervisors is a judgment of a competent court, with jurisdiction. All McGraw could have obtained would have been another judgment, and upon presenting an appeal to the circuit court, upon a review of the record, the appeal would, and should, have been dismissed, as there was already a judgment in the case.

In the case of McHenry v. State, 91 Miss. 562, 44 So. 831, mandamus is declared to be an extraordinary writ, and this is true, and when the party aggrieved has his remedy by appeal, or by a suit at law, he cannot resort to this remedy, but this course is the only course the relator in this cause has a right to or may exercise. If he had appealed, as above stated from the order of the board, and the court seeing the order allowing F. D. Harvey & Company the money claimed, would have dismissed the appeal as res adjudicata.

I do not seem able to identify the case cited by counsel for appellee in 63 So. 608, but under section 717, Code of 1906, also section 496, Hemingway's Code, declares the assignee of any chose in action may sue and recover on the same in his own name if the assignment be in writing, and the assignment from F. D. Harvey & Company being in writing, warrants McGraw bringing this action in his own name.

The appellee can claim no analogy between the case of Foote v. Board of Supervisors, 67 Miss. 156, and the case of McGraw v. The Board of Supervisors. In this case Foote held an equitable assignment of a portion of a fund in the hands of or subject to the disposal of the board of supervisors, owing by the board to one Gilmore. Gilmore died and his administrator claimed the entire fund, and several other creditors of Gilmore presented orders thereon. The court very tersely declared that Foote did not sustain such a relation to the board as would entitle him to a writ of mandamus.

In view of the facts of this case, and the law applicable thereto, it is our contention that an order should be made requiring McGraw to return the money to the treasurer of Winston county, and the writ of mandamus granted ordering the board to issue a warrant to J. D. McGraw, in accordance with his written assignment from F. D. Harvey & Company.

Z. A. Brantley and Edward M. Livingston, for appellees.

We submit that the circuit court was eminently correct in the first and second grounds for refusing to grant the writ, because the uncontroverted testimony shows that the money in question in this litigation was in the hands of J. D. McGraw at the time of trial of this case, and there was no money in the treasury of the county out of which this claim could have been paid.

That the appellant, J. D. McGraw executed a bond in the sum of $ which was accepted by the board of supervisors and a warrant for the amount issued in favor of McGraw under the provisions set forth in said bond; that the said McGraw should return the amount of said warrant to the board of supervisors in case it was determined that the said McGraw was not entitled to the same in preference to the said sub-contractors.

We think the clause in the contract which is as follows: "The contractor shall indemnify and save harmless the road commissioners, the county and municipality through which the road shall run from all suits or actions," is sufficient to warrant the third ground of the court's refusal to grant the writ. In addition to the above, the specifications provide that the contractor shall discharge all liens, if any, before final settlement is made with the contractor by the commissioners and board of supervisors.

We submit that upon a construction of the contract and bond of the contractor as a whole the third ground of the court's refusal to grant the writ is correct.

In support of the fourth ground assigned by the lower court in refusing the writ we submit that under the terms of the contract with the highway commissioners and the contractors, F. D. Harvey & Company, that the work of constructing the highway in certain townships as provided by the terms of said contract is not a public work of the county but a special improvement and being a special improvement the sub-contractors therefore have a lien for their work after notice thereof, and the appellant, J. D. McGraw, accepted the assignment from Harvey & Company with notice of the outstanding claims of the subcontractors who constructed the roads which are now being used by the county.

The appellant, McGraw, should have appealed direct from the order of the board of supervisors rejecting his claim, and failing to follow up his remedy at law, a mandamus will not be awarded. Mandamus is an extraordinary writ and will not be granted except in extreme cases where there is no adequate remedy at law, but in this case the appellant had ample remedy at law and should have availed himself of the same.

"The right to mandamus rests in the legal discretion of the court, and in the absence of facts to enlighten this court on all the points upon which the lower court acted upon, its discretion will not be reviewed, and where it has acted upon a full knowledge of all the circumstances, this court, upon all the points upon which the lower court acted, will presume the lower court acted correctly. Hendricks v. Johnson, 45 Miss. 644.

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