Carroll v. Board of Police, 28 Miss. 38

Carroll v. Board of Police

28 Miss. 38 | Miss. | 1854

Mr. Justice Fisher

delivered the opinion of the court.

This was an application to the circuit court of Tishamingo county for a writ of mandamus against the board of police of said county to compel them to levy and to cause to be collected a tax for the purpose of paying certain warrants held by the relator on the treasury of that county.

The court upon the coming in of the return to the writ which issued in the first instance in the alternative, refused to grant a peremptory writ, and thereupon dismissed the application. From which judgment the present writ of error has been prosecuted.

It is a general rule that upon an application for a peremptory writ of mandamus, the facts embraced in the return to the writ, which issued in the alternative, must be taken as true. This, however, must be understood to mean such facts as are relevant to the subject of inquiry before the court; for as to *48irrelevant facts, it is wholly immaterial whether they are true or false, they cannot enter into the investigation. Our first inquiry must therefore be to determine, what facts are pertinent to the subject submitted for the decision of the court. About the 11th of August, 1840, the board of police of said county, made an order directing the warrants now sought to be collected, to issue in favor of one Derosa Carroll, upon the treasury of said county. It is said, among other things, that this order appears upon its face to be void ; and, therefore, the warrants issued in obedience to such order are not binding upon the county. It appears that one Tarkington had undertaken to build the court house and jail of said county, and that he transferred his contract in part to Carroll. The board of police recognizing the validity of this transfer, allowed the claim, and directed the warrants to issue in favor of Carroll instead of Tarkington. We are unable to discover any irregularity in this proceeding. The statute conferred on the board of police ample power to make the contract for the erection of the court house and jail of the county, as also to levy a tax for the purpose of discharging the contract. In addition to these provisions, the board were authorized to audit and allow upon due proof, any and all claims against the county. The warrants, in this instance, grew out of the contract for building the court house and jail of the county; the claim was therefore one against the county, and as such falling exclusively under the jurisdiction of the board of police. Their judgment, like that of any other court having exclusive jurisdiction over the subject-matter, and the person to be affected, must be treated as final and conclusive until reversed or vacated in some mode known to the law. The judgment of the board in this instance was final. It was not subject to any contingencies or conditions whatever. It may have been impolitic or unwise, but this is not the question to be decided. It was the judgment of the only court which could in the first instance take jurisdiction of the subject-matter; and it is the policy of the law, no less than the interest of society, that there should be a point in all judicial proceedings where they should become final and conclusive between the parties directly interested. This point is *49well ascertained by the law. It is the final judgment in the cause — the result of the proceedings instituted for the redress of a particular injury — or for the ascertainment and recovery of a certain sum of money. If one such judgment or sentence is not to be treated as conclusive, how many must a court pronounce before its action shall be respected ? The law has settled this question by declaring, that all such judgments shall be treated as final until reversed or impeached for fraud, 'or otherwise vacated according to law.

This being the effect of the judgment of the board of police in this case, allowing the creditor’s claim, neither party can go behind it, and hence it is immaterial whether the facts contained in the return be true or false, as they cannot avail the board of police any thing, so long as their own judgment against themselves stands in full force. No fact which could have influenced the action of the board, or been considered by them at the time they pronounced the judgment, can be- now considered. The board must have done one of two things.. They were either governed by the terms of their contract in. ordering payment to be made, or if they deviated from the strict terms of the contract, they still had jurisdiction over the-subject-matter, and must have concluded that the claim was a just one, and ought, therefore, to be paid. Having authority to-make the contract in the first instance, they had authority to-modify or vary its terms, either as to the work, the payment of-the money, or as to the person to receive the payment.

This disposes of all the various points made by the return,, except the statute of limitations, and the one whether a mandamus is the proper remedy in a case like the present.

In regard to the statute of limitations, it may be stated in. the first place, that no suit can be maintained against a county; and the various provisions of the statute prescribing the time within which actions shall be prosecuted upon certain contracts, only apply to those cases where a suit can be maintained. But if the statute should be held to apply at all to-claims against the county, it must be insisted on at the proper time, pending the controversy before the board of police,, *50which was not done in this case, or if done, it was not re.garded, and we think very properly so, by the board.

It is, however, said that the statute which bars judgments within a certain time, must operate to bar the judgment of the board of police in this case. It is true the statute prescribes a time within'which a party must sue out his execution on a judgment, or revive it by scire facias, or action of debt; otherwise his remedy will be lost. No execution can issue to enforce a judgment of the board of police against the county. Such judgment is enforced- by a warrant on the treasury; and the board undertake by directing the warrant to-issue, to cause the money to be placed in the treasury for the payment of the sum specified in the warrant. It has already been said that no suit could be maintained agáinst the county; and hence the provisions of the Statute in regard to reviving judgments by scifé facias, or action of debt, cannot be held to apply to a judgment of the board of police, but only to such judgments as could be enforced by execution, or revived by the above-named remedies.

Again, it is insisted that the warrants are barred by the provisions of the act approved the 25th of February, 1842, declaring that.“all persons having a claim or claims against any •county treasury of this State, shall present such claim or claims within one year from the date of said claim, to the county treasurer of the county wherein such claim or claims shall have originated.” The act further provides, that the treasurer shall keep a book,1 “ and shall make therein an entry describing the claim, and the date of the presentation, and shall also indorse his name across the back of the claim, with the day and date of such-indorsement.” Laws of 1842, p. 213. ■

There,is-nothing in the language of this law, showing that the legislature designed it to have a retrospective action; and the rule, as definitively settled by this court, is, that unless such be the clear intention of the legislature, manifested by the language employed, the law will have only a prospective action, and will constitute a rule of action only as to matters arising after the enactment of the law. The warrants now in controversy, were, issued on the 11th day of August,. 1840; .and the *51law, under the operation of which they are sought to be brought, was not enacted until the 25th of February, 1842, more than eighteen months after their date. But it is argued that the warrants should have been presented to the county treasurer within sixty days after the approval of the law. It is a sufficient answer to this to state, that such is not the language of the statute. It requires, in general terms, the presentment to be made within one year after the date of the claim, otherwise the claim will be barred. The only question which can arise, is, Whether this language has reference to claims existing before the passage of the law, or only embraces claims originating afterwards ? We are clearly of opinion, for the reasons stated, that the latter were only intended to be embraced by the legislature. To hold that the former were intended to come under the operation of the law, would be equivalent to saying, that the party had lost his rights in consequence of laches, when the law exacted of him no greater diligence than he had actually used.

This brings us to the consideration of the last point in the cause, whether the party is entitled to the remedy which he has invoked by peremptory mandamus. It has been argued on behalf of the defendants, that the relator had a full and complete remedy, either by bill in equity or by an action at law. This argument has already been incidentally met in considering other points made in the defence. The manner in which, and the tribunal before which, a claim against a county must be enforced, are clearly defined by the statute. This tribunal has long since acted in regard to the claims now in controversy. They have been as definitely ascertained, and judgment directing their payment as clearly pronounced, as it is possible for any other court, even if it had jurisdiction, to pronounce a judgment in the premises. There is no unsettled or open question as to the amount to be paid, but only whether the sum already adjudged shall be paid as directed by the order of the board of police. The question is, By what means shall this judgment be enforced? It has already been said that the board of police by their judgment tacitly agreed to provide the means in the mode pointed out by-law, with which to pay the *52warrants, directed to be issued on the treasury of the county. Indeed, such was the nature and operation of the judgment itself. If a .suit'could be maintained1 at all at law, it would be against the members of the board as individuals, for failing to discharge their duty , as public officers in levying the tax required by law to pay the debt of the county. This might be, to say the most, a very inadeqáte remedy to the creditor. He, in making his contract, trusted to the ability of the county to meet the engagement, and not.to the individual responsibility of the members of the board of police. The county, by the contract, became his debtor, and it is to the party trusted, that he. Has a right To look'for! payment. The hoard of police, as the public agents of the county, and as the officers of the law, undertook to do what was necessary and required of them by law, to compel the county to execute the contract. As public officers, they have failed in discharging their ‘.duty in this respect. As public officers their action is still necessary to enable the creditor to get his rights, as adjudged and settled by the board of police, and the question is, whether there is any other remedy than that by mandamus which1-can.accomplish this object. If there be-any other, counsel have failed to; point it out, and it is certainly unknown to the jurisprudence of this State. Lord Mansfield’ said that the writ “ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” 3 Burr. 1267. To the same effect, 15 East,1117; 1 Cow. 4177 There is1,' therefore, no doubt as tó the remedy.

Judgment:reversed,'and peremptdry 'mandamus awarded. ■