Clayton v. McWilliams

49 Miss. 311 | Miss. | 1873

TaRBell, J.,

delivered the opinion of the court:

Mandajnus to compel the treasurer of Itawamba county to pay a warrant issued by order of the board of police of that county. The warrant bears date November 8,1864, for the sum of $75.00, and recites that it is issued for a pauper claim. The treasurer, for answer to the petition for the writ, says lie ought not to pay the warrant for the following reasons:

1. That the warrant does not show that ft was issued by the clerk “ by order of the board.”

2. That the warrant was issued in contemplation of payment in Confederate money.

3. That at the date of the issuance of the warrant the board of police of Itawamba county was acting under the authority of the State* which was then in insurrection and rebellion to the lawful government, and the warrant was therefore illegal and void.

This proceeding was instituted in March, 1872; a period of nearly eight years subsequent to the issuance of the warrant. The statute of limitations is not interposed, and the case must be disposed of on the issue made by the parties.

The first point made by the answer is untenable. The Code requires the orders of the board to be recorded, but it need not be stated in the warrant. In the absence of any adjudication to the contrary, aud upon the letter of the statute, Code of 1857, p. 416, art. 14, and Code of 1871, § 1361, it would seem to be sufficient if an order allowing an account or claim, be actually made by the board, and recorded, without repeating it in the warrant. The letter and the intent of the statute are doubtless complied with, if there is an order in fact, duly recorded, authorizing the issuance of the warrant.

The second objection made by the answer to the payment of the warrant, is well taken. Payment can be required only for the equivalent of Confederate money at the date of the warrant, in lawful currency. -In this proceeding, however, the court is not authorized to ascertain the difference in value indicated. When anything remains to be done,-or fact to be ascertained, relief cannot be afforded by mandamus. It follows that the writ was properly refused. Board of Police v. Grant, 9 S. & M., 90; Swan v. Work, 24 Miss., 439; and cases therein cited.

As to the third objection, the support of the poor is a laudable object, not perceived to have any connection with the prosecution of the war. Pursuing the general tenor of the adjudications of the Supreme Court of the United States, and of this court, the payment of the warrant exhibited with the petition, in view of its consideration, would seem to be, upon the record as it stands, allowable, though demands upon the present government for payment of claims arising between 1861 and 1865, are viewed with scrutiny, and have generally been disallowed. Files v. McWilliams, MSS. Op.; Buck v. Vassar, 47 Miss., 551 ; etc.

If any special facts exist, not set forth in the answer, they should be so stated to be entertained by the courts. The case is necessarily tried on the issues presented by the pleadings.

The judgment was that the motion for peremptory mandamus be overruled, and that the petition be dismissed, which was technically correct.

Judgment affirmed.