45 Miss. 644 | Miss. | 1871
The petition of Hiram B. Johnson, presented to the circuit court of Yallobusha county, in 1870, represents that, in January, 1870, he had against the common school fund of that county a claim for $200, which he duly presented to the board of police of the same county, which was by said board duly audited and allowed at a term of said board held according to law. The claim being so allowed and audited, a warrant for the amount was, by order of said board, issued and drawn upon and directing the treasurer of the county to pay to the petitioner the said sum of $200. James O. Hendricks was treasurer of said county, and as such had the custody of the funds out of which the said claim is ordered to be paid, and of which funds said Hendricks is alleged to have had an ample sufficiency to pay the petitioner his said claim. The petitioner avers that he often presented the said warrant to said Hendricks, treasurer, and demanded payment; yet, that he refused to pay the said warrant. Wherefore the petitioner prayed out the writ of mandamus directed to said Hendricks, commanding him to show cause why the same should not be made peremptory, and he be directed and required to pay the said warrant, etc. The warrant was filed with the petition. The writ was issued accordingly, returnable to the said circuit court on the 25th day of November, 1870, and with the same was filed the answer of the treasurer, that: “He has declined and refused to pay the said sum of $200 to the said H. B. Johnson, or bearer, as per the order and warrant of the honorable board of police of Yallobusha
After argument for and against the application, the court awarded a peremptory writ, and adjudged the costs to be paid by the respondent, for which execution was directed to issue. Thereupon the respondent sued out a writ of error with supersedeas.
Finding with the record in this case no assignment of errors we refer to the argument of counsel for the points relied on in this court, which are the same as those assigned in the answer to the alternative writ. The plaintiff in error, in excusing non-payment of the warrant, says he had no funds in his possession, out of which to pay it at the time of tbe service of process. If, in no other respect, this return is evasive in not informing the court whether he had funds at the time of the several demands of payment, the warrant was payable, and the right to payment accrued on presentation and demand. The warrant was drawn January 81, 1870. The alternative writ of mandamus was issued in November thereafter. In the mean time, according to the petition, payment of the warrant had been often demanded. If illegally or fraudulently issued, the parties so illegally issuing it or practicing the fraud were subject to indictment, and payment of the warrant could have been stopped by legal proceedings. The treasurer, if a faithful officer, upon declining payment, would have notified the board of police, who, in turn, would have interposed to prevent the consummation of the fraud and of the illegality, were these valid and existing objections to the warrant. But the board of police is empowered by law to audit and allow claims' like the one sought to be enforced in this instance, and the
But the allegations of fraud are insufficient. The answer states conclusions. It should have set forth facts for the information and action of the court. We have carefully examined the Code for authority to authorize the county treasurer to suspend, or refuse the payment of warrants properly drawn upon him by the clerk, in obedience to the directions of the board of police, but can find no such law, except in the single case provided for in art. 161, Code, 132. If in the subsequent statutes he is given such general power, we are not informed thereof. The treasurer is a ministerial officer, and the custodian of funds, certain of which are subject to the control of the board of police (now the board of supervisors). The powers of the board of police to examine and audit demands, and to order their payment by the treasurer, are contained in arts. 32, 33, Code, 419. From the action of the board an appeal may be taken by any party aggrieved .to the circuit court of the county. Ordinarily the judgment of the board of police cannot be attacked collaterally. To justify a disregard of their warrant, and the impeachment of their decrees in a collateral proceeding, the fraud or illegality of the warrant should be very clearly shown by a specific statement of facts. 9 Smedes & Marsh. 92; 6 Hill’s Ch. Pl. 244; 23 Barb. 349; 4 Abb. Pr. 22; 13 How. Pr. 314; 4 Seld. 317; 11 How. Pr. 89; Swann v. Work, 24 Miss. 439.
The board having made the allowance, it is the duty of the clerk to issue the warrant, and of the treasurer to pay. The treasurer is as much a ministerial officer as the clerk,
In 9 Smedes & Marsh. 92 (The Board of Police of Attala County v. Grant), the court say : “The party is entitled to his warrant on the first judgment, if he is entitled to it at all; and, if there be no money in the treasury, a mandamus would undoubtedly be the proper remedy to coerce the levy of a tax. One of these judgments directed the payment to be made out of a particular fund, so far it was directory only, and if there should not be such a fund the judgment could not for that reason fail.” The proceeding in that case was against the board. The claim of Grant had been once audited and ordered paid, but the clerk had not issued the warrant. The opinion in that case discusses the office of the writ of mandamus, holds the judgment of the board of police final on matters within its jurisdiction, and the clerk and treasurer to be ministerial officers.
Except the allegation in the petition, that the claim of the i’elator is upon the school fund, the' record presents no facts to guide our judgment. We have, therefore, referred to the school laws in force in January, 1870, from which we gather that the school fund of Yallobusha county was controlled by the board of police, and the county treasurer was its custodian. Hutch. Code, title, Education; Code of 1857, p. 369, art. 1. The present constitution of the state, with its special provisions in relation to schools and school funds, was adopted February 23, 1870. The school law now in force was approved July 4, 1870. The character of the claim of the relator, further than that it was against the common school fund, is not stated, nor are the dates of the several presentations of the warrant for payment given. The school moneys then in the hands of the treasurer, since dedicated by the constitution, have probably passed beyond the control of that officer, or of the board of police, or of
If the claim of the relator is a just one, as we have no reason to doubt, and the judgment is a hardship upon the plaintiff in error, the authorities of Yallobusha will undoubtedly come to his relief upon proper application.
No error in the proceedings, or in the action of the court below having been pointed out, and the presumptions, upon an insufficient and evasive answer, being against the plaintiff in error, and in the absence of material facts in favor of the judgment of a court of competent jurisdiction, we are compelled, upon a naked record, to affirm the judgment, which is accordingly done.
