Trotter v. Frank P. Gates & Company

• Decision Date: 29 February 1932
• Docket Number: 29810
• Citation: 162 Miss. 569,139 So. 843
• Parties: TROTTER v. FRANK P. GATES & COMPANY et al
• Court: Mississippi Supreme Court

139 So. 843

162 Miss. 569

TROTTER v. FRANK P. GATES & COMPANY et al

No. 29810

Supreme Court of Mississippi

February 29, 1932

Division B

1 MANDAMUS.

That governor, as chairman of building commission, could not be compelled to sign certificate for claimant's warrant held not to deprive claimant of right to have mandamus issued against secretary of commission (Laws 1928, chapter 291 section 5).

2 EVIDENCE.

Court must presume that governor would voluntarily perform his duty.

3. STATES.

Even if treasury was without sufficient funds to pay claim allowed by state building commission, claimant held entitled to certificate showing right to warrant (Laws 1928, chapter 291; Laws 1930, chapter 128; Code 1930, section 3728).

4 STATES.

Where only four of seven members of building commission were present at meeting when vote on claim was taken, whether member retiring from meeting heard question put and could have participated in voting held properly submitted to jury (Laws 1928, chapter 291).

5. STATES.

Where four of seven members of building commission were present at meeting, if vote to allow claim was taken while member retiring from meeting was still within hearing distance with opportunity to vote, quorum held present and majority of quorum could make allowance (Laws 1928, chapter 291).

6. EVIDENCE.

Officers are presumed to act in accordance with law and do what is necessary.

7. STATES.

Board acting under limitations named in statute prescribing conditions and methods must show facts which warrant its action.

8. STATES.

Where statutes did not prescribe particular methods under which building commission should act, presumption existed that meeting at which claim was allowed was properly held (Laws 1928, chapter 291).

9. STATUTES.

Statute appropriating funds for improvements at university, providing for personnel of building commission, and prescribing its duties and powers, held not unconstitutional as ingrafting on appropriation bill particular legislation (Laws 1928, chapter 291).

10. STATES. In appropriation bill, legislature can provide for expenditure and administration of fund.

Legislature can provide, in appropriation bill, for expenditure of money, conditions on which it may be drawn from treasury, and for administration of the fund so long as machinery created is limited to appropriation so made.

HON. W. H. POTTER, Judge.

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

Suit for writ of mandamus by Frank P. Gates & Company and others against W. C. Trotter, as Secretary of the State Building Commission. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

J. A. Lauderdale, Assistant Attorney-General, for appellant.

The writ of mandamus should not have been issued because it was inefficacious in that the order of the court did not undertake to compel the Governor, as Chairman of the Building Commission, to sign the certificate.

Section 5, chapter 291, Laws of 1928; state ex rel. v. Danaher, 47 Mont. 570, 133 P. 961, Ann. Cases 1915 C. 130; People v. Bunne, 258, Ill. 441, 101 N.E. 560, 45 L. R. A. (N. S.) 500.

When the operative effect of the action sought to be coerced depends upon the cooperative action of a third person, who is not before the court, the writ will not ordinarily be granted as its issuance would ordinarily be nugatory, the court having no power to coerce the cooperation of such third person.

18 R. C. L., sec. 66.

The court has no power to compel the Governor by mandamus to perform any duty imposed upon him by law.

Vicksburg & R. Co. v. Lowry, 61. Miss. 102; 18 R. C. L., secs. 121, 122, 123, 124 and 125.

The plaintiffs failed to allege and prove that funds had been appropriated by the Legislature for the payment of said claim.

Sec. 63 of the State Constitution provides that no appropriation bill shall be passed by the Legislature which does not fix definitely the maximum sum thereby authorized to be drawn from the treasury.

The auditor shall not draw warrants without, or in excess of, appropriations of money for the purpose, except in those cases specifically provided for by law.

Section 3728, Code of 1930.

It was incumbent on petitioners to allege and prove that there were sufficient funds appropriated by the Legislature to pay the said claim.

Woodcock v. Board of Education of Salt Lake City, 187 P. 181, 10 A. L. R. 181; State ex rel. Lisk v. Otoe County, 10 Neb. 19, 4 N.W. 258; Board of Improvement v. McManus, 54 Ark. 446, 15 S.W. 897; Sherman v. Smith, 12 Tex. Civil Appeals, 580, 35 S.W. 294; State ex rel. Lynne v. Calhoun, 27 La. Ann. 167.

Want of funds being a complete answer to a petition to compel an officer to pay warrants drawn upon him is necessarily a complete answer to a petition to compel an officer to make or approve a payroll or draw a warrant for such payment.

People v. Brown, 281 Ill. 390, 118 N.E. 67, 5 A. L. R. 563.

The testimony shows that at the time the vote was taken to allow the claim in controversy that a quorum of the building commission was not present.

It is a well established parliamentary rule that a quorum of the body must be present in order to validate its action or to transact any business.

46 C. J., p. 1378, par. 8 (B); Brown v. District of Columbia, 127 U.S. 575, 32 L.Ed. 262; Dillon on Municipal Corporations, par. 283.

The necessity for a meeting and deliberation of all the persons appointed to perform a duty calling for the exercise of discretion seems to be generally recognized.

Volume 22 R. C. L. 456, sec. 115.

The undisputed testimony in this case shows that at the time the vote was taken to allow the claim in controversy that only three members of the commission were present in the room where the meeting was held.

The record fails to show that said claim was allowed at a regular meeting of the commission or that all members of the commission had notice of the time and place of said meeting.

State ex rel. v. Alexander, 130 So. 754, text 756; Prather v. Abernathy, 134 So. 168.

Chapter 291, Laws of 1928, is unconstitutional and void.

Sec. 69 of the Constitution of the State of Mississippi.

This chapter has general legislation as a part of an appropriation bill and is clearly violative of Section 69 of the Constitution of 1890; Holder v. State, 76 Miss. 158; Pearl River County v. Lacey Lumber Company, 124 Miss. 85.

Holmes & Potter and J. H. Brumby, all of Jackson, for appellees.

It is not incumbent upon the plaintiff to show that his claim was allowed at a regular meeting or, that all necessary notices of a special meeting was given, if it was a special meeting.

In absence of any proof to the contrary, there is a general presumption attending all official acts that the officers in question did their duty in all respects and did nothing illegal, unlawful or unauthorized.

Knox County v. Ninth National Bank, 147 U.S. 91, 37 L.Ed. 93; Dillon on Municipal. Corporations; Briggans v. Chandler, 60 Miss. 862; Corban v. Crittenden, 62 Miss. 136; Tierney v. Brown, 65 Miss. 570.

The burden was not upon the plaintiff to show that there were funds available for payment of this claim.

Section 5, chapter 291 of the Laws 1928.

The direct object of this proceeding is not to have any warrant for money issued appellee, but merely to have a certificate issued to the appellee that the building commission is indebted to him.

This certificate could not be presented to the treasury, nor will it be presented to the state treasury as a warrant. This certificate, issued, will only be evidence that the commission is indebted to Gates, and will be the condition precedent to the authority for an auditor to issue a warrant on the state treasury for the payment of the money.

Even though this was a proceeding to obtain a warrant drawn on the state treasury, the burden of proof would not be upon the appellee to prove that the funds were available, but this could be a defensive matter and it would be necessary for the defendant to plead and prove a lack of funds available.

State ex rel. Fooshe v. Burley, 61 S.E. 255, 16 L. R. A. (N. S.) 266 and 271.

Faulkner was constructively and actually present and not voting.

Minorities of councils and other deliberative bodies some time resort to obstructive tactics to defeat measures which they have reason to believe the majority favor. One of such methods is by refusal to vote by reason of which a measure may be deprived of a majority of the council present and participating. But the courts have steadfastly adhered to the rule that when members are present at a meeting, a mere refusal to vote on the part of some of the members cannot defeat the action of the majority of those actually voting. As long as members are actually present in the council chamber and have an opportunity to act and vote with the others, it is their duty to act and they will be regarded as present for the purpose of making a quorum and rendering legal the action of the council.

2 Dillon on Municipal Corporations (5 Ed.) 581; State v. Vansdale, 131 Ind. 388.

This court cannot presume the writ will be inefficacious or presume that the judgment of the lower court is incorrect.

Chapter 291 of the Laws of 1928 not unconstitutional.

The appropriation of one million six hundred thousand dollars for permanent improvements at the University of Mississippi, only lays down the condition for which the money may be drawn. We submit that that portion of the statute providing for the personnel of the commission, prescribing its powers and duties, authorizing it to make contracts and to make settlements thereof, only lays down the terms on which the money is to be spent.

OPINION

Ethridge, P. J.

This is an appeal from...