Haskins v. Board of Supervisors

51 Miss. 406 | Miss. | 1875

Simrall, J.

delivered the opinion of the court.

The relator sought by mandamus to compel the board of supervisors of Scott county to establish a certain change in one of the public roads of the county; to approve the report of the commissioners appointed to lay out the road, and order the issuance of a warrant on the county treasurer for $87.00, in favor of Austin Madison, the amount awarded by the inquisition, of damages for putting the road upon his land. The relators are William Has-kins and eleven others, freeholders of the county of Scott (their names are not given). The alternate writ is not in the transcript (there is, however, a pencil memorandum, most probably made by the clerk, that the writ has been lost).

The respondent demurred to the petition, which was sustained, and the petition was dismissed. This was not the proper and orderly mode of raising the question of law, whether the relators had shown a right to the redress which they sought (as we shall presently see). But since counsel in this court have, in their briefs and arguments, treated the subjects on their merits, without alluding to the form of the pleading, we will consider the points made in the demurrer, treating the petition as the pleading, disclosing the relators’ case.

The report of the commissioners to lay out the road was returned and filed, but was not approved and confirmed by the board ; the prayer is, that the board be compelled to approve the report. But there resides in the board a discretion to approve or not. There may be good and sufficient reasons why the report should be rejected. The matter is one of judgment and discretion, and the prayer is, that it be exercised in a particular way. In such circumstances, mandamus will not lie (§ 1521, Code of 1871), which is declaratory of the common law. Another prayer is, that the board be compelled to order the issuance of a warrant in favor of Austin Madison for the amount of damages, etc., awarded to him.

The primary rule is, that a mandamus must not include more than one case, whether of the same or many individuals. Two or more distinct rights cannot be joined. If two or more distinct claims are united, the suit will be dismissed. Rex v. Mayor, etc., 11 Mod., 382; Rex v. Physicians, Burr., 2742; Tappan on Mand., 369. What interest have Haskins and the nine freeholders who join with him in the damages awarded to Austin Madison for locating the road on his lands ? It is not disclosed or pretended that they, or any of them, have title or claim to the land subjected to the servitude; nor that they have interest in the money by assignment. As to this matter, they are strangers; and as volunteers, without the knowledge or consent of Madison, make their appeal to the court in his behalf, and to vindicate his right.

If the suit be for a private right, the relator must state his personal interest, the facts of which are the grounds of his claim, and the damages which he has or may sustain by the nonperformance of the duty by the respondent. § 1519, Code of 1871. The relators have set forth neither a joint or individual right to this sum of money, nor how, individually or collectively, injury would result from its nonpayment. Haskins and his associates may have such community of interest in the laying out of the road as that they could join in a suit in respect of that, but not in the other subject matter.

In this suit, the relators must have a right common to all of them ; must have a joint benefit in the performance of the act or duty required of the respondent, and must be joint sufferers, because of the nondoing ; otherwise they cannot unite in the suit. But in this case, part of the relief sought is touching a matter in which none of the relators had an interest. The circuit court, therefore, did right in sustaining the demurrer; counsel on both sides coinciding that the merits of the controversy are contained in the petition.

This record suggests that there prevails, to some extent, a misapprehension of the practice as regulated by the statute. In order that there may be uniformity, we will state briefly the modification in the mode of procedure at common law, introduced by the statute. In the English practice, the applicant made a motion in open court, grounded upon affidavits, documents, etc., for a rule upon the defendant to show cause why a mandamus should not issue. Tappan on Mand., 844. When served on the respondent, the rule will be made absolute if no cause be shown against, and the alternative writ issues, which, like the declaration must contain all the allegations of such facts as show the relator is entitled to the relief he prays.

The return of the respondent must show performance, or set forth, the excuse or avoidance, or the respondent may take objections to the writ for matter of substance or form, and it may be superseded or quashed. The defendant may appear in answer to the rule, and show cause, or he may respond in his return to the alternative writ. Under the statute, the proceeding is as follows: The judge of the circuit court, in term time or vacation, may order the issuance of the writ of mandamus. It is granted upon a petition, which must state the facts which constitute the cause thereof; if preferred by a private person, it must set out that he is personally interested. Code of 1871, §§ 533, 1517, 1519.

The petition is an ex parte application, addressed to the judge in term time or vacation, setting forth the nature and grounds of the relator’s right, the act or duty which the defendant ought to do. If it makes only a prima facie case, the judge orders the writ to be issued, without making a rule nisi, and giving notice to defendant to show cause, etc.

The petition is the foundation of the application, and serves in the place of the motion, affidavit and supporting papers, and the rule nisi in the English practice, as these composed the material out of which the alternate writ was composed. So the petition in our practice answers the same purpose. If the alternative writ does not conform to the affidavits and accompanying papers, and the rule nisi under the English practice, and to the petition under ours, it is liable to be superseded or quashed.

The petition constitutes the suggestions which are carried forward into the alternative writ, and must be stated fully, and with reasonable certainty. This writ is served upon the defendant, and gives notice of the grounds of plaintiff’s demand, and of the act or duty which is required of him. It must, therefore, be so complete in itself, as to show the right which the relator asserts, and the duty incumbent on the defendant, which he ought to perform. It is not merely mesne process, in the nature of a summons to appear and answer a claim set forth in a complaint or declaration, but the alternative writ becomes of the nature of a pleading and fulfills the office of a declaration, and if it be insufficient in substance, or defective, the respondent may move to quash or demur. State Board of Education v. Mayor, etc., of West Point (decided this term).

The petition is the inducement and predicate, upon which the judge grants or refuses the writ.

There is no discussion or opportunity to the defendant to contest the right to the writ on the face of the petition. But the alternative writ, being of the nature of pleading, must make every allegation of the relator’s title to the redress which he seeks.

If defective in substance, even after a return, the respondent may move to quash. Rex v. Margate Pier Co., 3 Barn. & Ald., 221. Section 1520 of the code directs that the pleadings and other proceedings shall be the same as in an ordinary action for the recovery of damages. The respondent may move to quash, or demur to the writ, or meet it by answer.

The relator is not bound by the return or answer of the defendant, and if false, driven to his action for a false return, as at law, but he may meet the return by traverse, demurrer, or other appropriate pleading. Commercial Bank of Albany v. Canal Commissioners, 10 Wend., 33.

Eor the reasons herein before given, the judgment is affirmed.