State ex rel. Trahan v. Price

• Decision Date: 01 January 1934
• Docket Number: 30889
• Citation: 168 Miss. 818,151 So. 566
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. TRAHAN et al. v. PRICE, STATE AUDITOR

151 So. 566

168 Miss. 818

STATE ex rel. TRAHAN et al. v. PRICE, STATE AUDITOR

No. 30889

Supreme Court of Mississippi

January 1, 1934

Division A

MANDAMUS.

Mandamus against state auditor to prevent issuance of warrants on state treasury on requisitions of state highway commission for purposes for which no appropriations had been made could be maintained in name of state only by attorney-general or district attorney; hence taxpayers who suffered no legal injury other than that suffered by other citizens could not maintain such proceeding.

HON. W H. POTTER, Judge.

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

Mandamus proceeding by the State, on the relation of R. G. Trahan and others, against Joe S. Price, State Auditor. From an adverse decree, relators appeal. Affirmed.

Affirmed.

E. G Williams, of McComb, and L. T. Kennedy, of Natchez, for appellants.

Chapter 93 of the Laws of 1932 is entitled, purports to be and is a revenue bill, embracing the subject of revenue, absolute and direct legislation, and not conditions upon which money can be drawn from the State Treasury, and cannot therefore, under the constitution, be an appropriation bill.

Section 69, Constitution of 1890.

A revenue bill cannot be also an appropriation bill.

Section 68, Constitution of 1890; Section 70, Constitution of 1890; Colbert v. State, 86 Miss. 769; Cigar Store v. McFarlane, 111 So. 348.

The said act has no title as an appropriation and does not authorize the Highway Commission to draw any funds from the State Treasury and is not therefore an appropriation bill to the Highway Commission.

The said act is not an appropriation bill because it does not name any specific maximum amount to be drawn from the State Treasury.

State of Mississippi v. Colbert, 81 Miss. 174; McAdoo Petroleum Corp. v. Commissioner, 294 P. 322; Kessler v. Mann, 264 S.W. 366.

The court erred in sustaining the demurrer and holding that the Highway Commission had the right to draw funds from the state Treasury to locate and relocate state highways and pay for rights-of-way, when under the constitution the Commission is only empowered to construct and maintain such highways as shall have been designated by the Legislature from the then existing certain highways.

Section 170, Constitution of 1890.

The court erred in sustaining the demurrer and dismissing said petition, because no appropriation had been made for the salaries and expenses of the Highway Commission.

Colbert v. State, 86 Miss. 769.

The petition in this case is for a writ of mandamus against the auditor to require him to comply with Section 3728 of the Code of 1930.

Mandamus is the proper remedy to require a public officer to comply with a positive and plain statute.

38 C. J. 600; 18 R. C. L. 30.

It is not the office of the writ of mandamus to compel a general course of official conduct or a long series of continuous acts, but an examination of the principles and of the cases will show that the petition in the case at bar is not in that class which seeks to compel the general course of official conduct or of a long series of continuous acts.

Section 2348, Code of 1930; Section 3728, Code of 1930; 38 C. J. 603; 18 R. C. L., section 31; 18 R. C. L. 33.

The universal principle of law, that a mandamus will not issue to control official conduct for a long series of continuous acts, is simply that the writ of mandamus must be specific, so that the respondent may know exactly what to do and for failure thereof he will be in contempt of court.

Diamond Match Co. v. Powers, 51 Mich. 145; People v. Busse, 238 Ill. 593, 28 L. R. A. 246; Section 3728, Code of 1930; State v. Florida Coast Line, 75 So. 582.

In the case at bar the auditor would not be required to look beyond the terms of the writ. It would be specific and not conditioned upon any circumstances.

18 R. C. L. 33; State v. Miller, 85 So. 701.

W. W. Pierce, Assistant Attorney-General, for appellee.

The questions raised in this cause require consideration of Chapter 122 of Mississippi Code of 1930, as amended by Chapter 133 of the General Laws of Mississippi 1932, and House Bill No. 439 of the Acts of the Legislature 1932 Extraordinary Session, and Chapter 93 of General Laws of Mississippi 1932, Regular Session.

Appellants do not allege the existence of sufficient facts to entitle them to the issuance of a writ of mandamus, and the court is without power to issue directions or instructions to the State Auditor for the future guidance of the parties interested.

White v. Miller, 159 Miss. 49.

The court is without power to issue an advisory opinion in the case at bar, there being no allegation in the petition of a specific warrant, which defendant, State Auditor, will issue unless commanded to refrain therefrom by the court.

In re Opinion of Justices, 148 Miss. 427.

Chapter 93 of the General Laws of Mississippi 1932 is a sufficient appropriation of the proceeds of the gasoline tax collected thereunder and paid into the State Treasury to the credit of the State Highway fund, so as to authorize the defendant, State Auditor, to issue warrants thereon in the manner provided by law, and for the purposes specified in the statutes, and to discharge any claim, obligation or liability arising out of, or necessarily incidental to the full and complete accomplishment of the objects and purposes of Chapter 122 of Mississippi Code of 1930, as amended, and Chapter 93 of the General Laws of Mississippi 1932.

Section 5, Constitution of 1890; Section 6, Constitution of 1890; Highway Commission v. Gully, 145 So. 353; Sections 5010 and 5012 of Mississippi Code of 1930; In re Opinion of the Judges, 48 S.D. 253, 203 S.W. 462; Holmes v. Alcott, 96 Ore. 33, 189 P. 202; Atkins v. State Highway Department, 201 S.W. 226; Carr v. State, 127 Ind. 209, 26 N.E. 778, 11 L. R. A. 372, 22 Am. St. Rep. 624; State v. Jorgenson, 25 N.D. 539, 142 N.W. 450, 49 L. R. A. (N. S.) 67; Menefee, State Treasurer, v. Askew, 25 Okla. 623, 107 P. 159, 27 L. R. A. (N. S.) 537; State v. Moore, 50 Neb. 88, 69 N.W. 373, 61 Am. St. Rep. 538; Stratton v. Green, 45 Cal. 140; State v. Searle, 79 Neb. 111, 117, 112 N.W. 380, 382; Norcross v. Cole, 44 Nev. 88, 189 P. 877; State v. Babcock, 24 Neb. 787, 40 N.W. 316; McClelland v. Lewis, 40 Okla. 551, 139 P. 900; Edwards v. Childers, 102 Okla. 158, 228 P. 472; State v. Brian, 120 N.W. 916; State ex rel. v. Hall, 155 N.W. 228.

The contention that Chapter 93 of the Laws of 1932 cannot be a valid appropriation act in that the act does not definitely fix the maximum amount to be drawn from the treasury is not tenable.

Commonwealth v. Baker, 211 Pa. 610, 61 A. 253.

The creation and distribution of the state highway fund is the strict prerogative of the Legislature.

Colbert v. State, 86 Miss. 769.

The issuance of warrants by the State Auditor upon requisitions of the State Highway Commission drawn on the state highway fund in the State Treasury created and appropriated by Chapter 93 of the General Laws of Mississippi 1932 is not violative of Section 64 of the Constitution of 1890.

Colbert v. State, 86 Miss. 769; Edwards v. Childers, 102 Okla. 158, 228 P. 472.

Chapter 93 of the General Laws of 1932, as an appropriation act, is not violative of Section 69 of the Constitution of 1890 prohibiting the ingrafting of legislation on appropriation bills.

Trotter v. Frank P. Gates & Co. et al., 139 So. 843.

Argued orally by L. T. Kennedy, for appellant, and by W. W. Pierce, for appellee.

OPINION

Cook, J.

This action was instituted in the circuit court of Hinds county by a petition in the name of the state of Mississippi, on relation of R. G. Trahan, and thirteen other resident citizens and taxpayers of Pike county, Miss., against J. S. Price, state auditor, seeking a writ of mandamus to prevent the issuance of warrants by him on the state treasury on the requisitions of the state highway commission, for the payment of salaries or other expenses of the said commission, for the purchase of rights of way for said highways, or for any other purpose whatsoever, save and except that purpose for which an appropriation had been made.

The petition alleged that, although the Attorney-General of the state is by law required to represent all state officers in any and all suits brought against them or any of them in their official capacity touching their official duties, they had requested him to institute for the state the action set forth in the petition, but he had declined to do so, that the relators are persons interested in the subject-matter of the suit, and that the same was brought by them in the name of the state of Mississippi, and individually, for the benefit of themselves, and all persons of the same class, who were invited to join therein.

The petition further averred that it is the duty of the state auditor to collect the excise tax levied on gasoline, pay the state's portion thereof into the state treasury, and draw warrants against the same on proper requisitions from the proper authorities, but only after legislative appropriation for the particular purpose for which said requisition is made and warrant drawn; that the defendant state auditor has honored requisitions of the state highway commission against said funds in the state treasury, issued warrants therefor,...