Pearl River County v. Lacey Lumber Co.
| Decision Date | 15 May 1922 |
| Docket Number | 22541 |
| Citation | 128 Miss. 885,91 So. 572 |
| Court | Mississippi Supreme Court |
| Parties | PEARL RIVER COUNTY v. LACEY LUMBER CO |
APPEAL from circuit court of Pearl River county, HON. G. WOOD MAGEE Special Judge.
Petition for mandamus by the Lacey Lumber Company against Pearl River County. Judgment directing issuance of writ, and defendant appeals. Reversed and dismissed.
Judgment reversed, demurrer sustained, and cause dismissed.
Parker & Shivers, for appellant.
Appellant's position is that after the auditor and attorney-general certified this claim to the board of supervisors, that it remained a claim against the county to be presented as the law required any other claim against the county, and to be allowed or disallowed, and proceeded with generally, as any other claim is required under the law, to be dealt with, by the board. We may be mistaken in our position, but we feel that this court has settled that question when it held in its former opinion in this case that the action of the attorney-general and the state auditor was not final, was not mandatory, as against the board of supervisors, that the board still had the right and it was the board's duty to the public, to contest this claim so long as they in good faith believed they had a good defense thereto. We don't feel that the language of the court in this case is susceptible of any other construction.
We think that counsel for appellee confuses in his mind the question as this court has already announced, that there exists a question as to liability; and that this claim has nowhere assumed the form or effect of a judgment. We submit that when counsel say that the board of supervisors did not act judicially when it disallowed this claim, he clearly overlooked the many announcements of this court on this subject, and we, with respect, invite the court's attention to the following cases on this point: Yalobusha County v. Canby, 3 S. & M. 529; Ross v. Lane, 3 S. & M. 695; Arthur v. Adam, 49 Miss. 404; Carroll v. Board of Police Tishomingo County, 28 Miss. 38; Board of Supervisors v. City of Brookhaven, 51 Miss. 71.
Authorities from our own supreme court without limit could be cited on this question. Board of Police v. Grant, 9 S. & M. 77; County of Yallobusha v. Carby, 3 S. & M. 529.
Section 311 of the Code of 1906 provides the method known to the law for the judgment of the board of supervisors to be reversed or vacated. Counsel relies on case of Board of Supervisors v. Weatherford, 75 So. 114, to see that the case has no hearing on the facts presented by this record.
Counsel cites the case of Clarke et al v. Board of Trustees etc., 117 Miss. 234, and relies with much confidence on said case, as deciding the issue presented by the case at bar. This case nor the case on which it is based, to-wit, Hobs v. Germany, 94 Miss. 469 So. 515, are applicable to the facts and the law, of this case for the reason that the appeal referred to by the supreme court in said case was and is an appeal to the school trustees, superintendent of education and the state superintendent. The court expressly announced in the case of Clarke v. Trustee, et al., supra, that the officers to which this appeal was allowed by statute was necessarily administrative officers, their acts were not judicial, and could not be under our jurisprudence, therefore mandamus would lie.
This is not true in reference to section 311 of the Code of 1906. The appeal there provided and the suit therein authorized as well as the suit authorized in section 309, Code of 1906, is an appeal to or a suit in a court where the matters can be judicially determined as this court so appropriately held in the Clarke case, supra.
For the same reason, the case relied on by appellees to-wit: Moreau v. Grandich, 114 Miss. 561, does not apply. Counsel for appellee contends that appellee had the right to elect its remedy. We say this is true so long as it elected as between an appeal from the order of the board of supervisors, disallowing its claim and a straight original suit against the county, as provided in sections 309 and 311 of the Code of 1906, but its right of election is limited to one of these remedies if appellee's contention is correct, that mandamus will lie in this case, then it will lie in any case, where a party has a claim against a county. And we no longer need sections 309 or 311 of the Code of 1906. These sections can become a dead letter on the book and counties from this day hence may expect their officers to be narrowed down in their defenses to claims against the county to the narrow defense admitted in mandamus proceedings.
On a careful reading of the other cases cited by counsel, it will clearly appear, that our position as announced in our original brief in this case, towit: that when a claim against a county had reached the stage, that there is no longer discretion left to the board of supervisors, had been allowed, became a judgment, so that the warrant either had issued or must issue, then mandamus would lie, is supported by these cases, and they hold no more nor less than this.
This court said in its former opinion that the board could defend this cause. This court's announcement became, was, and is the law of the case. The lower court should have abided by the directions of this court in its former opinion. It refused to abide this court's direction, therefore it is necessary for us to again bother this court with this case.
Counsel for appellee says that irrespective of the procedure in this case, whether by mandamus or otherwise, that appellant made its defense and therefore has no right to object. In this connection, we invite the court's attention to the record, and with respect suggest that this record viewed as a whole, must disclose to this court clearly, that the appellant occupies now the position in this case, that the board of trustees in the Clarke case supra, endeavored to place Clarke, the appellee, proceeding by mandamus, has succeeded in having the lower court close the door on appellant and deny it the right to make the defense that this court said it could make, and that it should make.
We of course do not deny by items the claim presented by appellee, but we do deny liability entirely, but the lower court refused to permit us to make our defense, when it sustained appellee's demurrer to our special plea, and thus closed the door of this court to appellant, although this court had specifically held that appellant was entitled to, that its duty to the public required it to, make the defense sought to be made.
Appellee takes the position, and it has taken it throughout this procedure, has succeeded in inducing the lower court to take the position, in the face of the announcement of this court to the contrary, that the auditor's certificate is final and is mandatory against the board of supervisors.
F. M. West, for appellee.
This is the second trial of this cause in this court. See Pearl River County v. Lacey Lumber Company, 124 Miss. 85. The case comes here on appeal by Pearl River County from a judgment of the circuit court of that county directing the issuance of a writ of mandamus to the board of supervisors thereof, commanding it to pay the Lacey Lumber Company, appellee, the sum of three hundred and sixty-five dollars and eight cents which the latter claims is due it by reason of taxes paid the county which it had no right to exact or collect, and which were paid under compulsion and protest.
This court reversed and remanded this case for a new trial (124 Miss. 85), and there pointed out wherein the appellee had failed to make the proof necessary under general issue plea to maintain its prayer or the writ of mandamus. That proof has now been made, as is shown in the transcript.
After the state had made refund to the appellee the auditor of public accounts certified the matter to the county of Pearl River in the manner provided in section 4346, supra, and this certificate appears in this transcript. All of the claims were rejected and disallowed on May 9, 1919. Petition for writ of mandamus was then filed by all of the claimants in the circuit court of the county on May 22, 1919.
Upon the second trial of this case in the lower court all the pleas formerly availed of were withdrawn by leave of the court and a demurrer to plaintiff's declaration was filed. In that demurrer the defendant county set up that appellee had a plain, adequate and speedy remedy at law. That the taxpayer had the right to sue the county for the amount claimed after the board of supervisors had rejected its claim or to appeal from the order of the board disallowing the claim; and set up, further, that appellee had no right to a writ of mandamus. That the action of the board in disallowing the claim was a judicial one, and that mandamus will not lie; and that the only remedy of appellee was to appeal from that order or to sue the county.
The trial court overruled the demurrer, whereupon defendant filed a plea of the general issue and a special plea. The special plea set up that, although the appellee had paid its taxes under protest, as shown on the tax receipts, yet the protest was based upon a condition; which condition was that appellee understood that the Edwards Hines Interests, and other interests were to secure a reduction of their taxes; and that if these reductions were made, then appellee was to be accorded the same reduction. That said reduction was not had by the Hines Interests; and that the protest was not a general protest, but was a protest based upon a condition which did not follow and that, because said reduction was not allowed the Hines Interest; therefore, no protest was made by the appellee. A demurrer was filed to this special plea, and sustained by the trial court. The...
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