Pearl River County v. Lacey Lumber Co.

91 So. 374 | Miss. | 1922

Cook J.,

delivered the opinion of the court.

This is an appeal by Pearl River connty, from a judgment of the circuit court directing the issuance of a writ of mandamus, commanding the board of supervisors to pay the Lacey Lumber Company, appellee, the sum of three hundred and sixty-five dollars and eight cents, which appellee claims is due it by reason of taxes paid the county under a void assessment, and which were paid under protest.

This is the second time this case has been before this court, and, on the former appeal, the judgment of the court below was reversed and the cause remanded. The facts upon which the suit is based and the allegations of the petition for mandamus are fully stated in the former opinion, which is reported in 124 Miss. 85, 86 So. 755.

After the cause was remanded, the county was granted leave to withdraw its pleas and file a demurrer to the petition, and thereupon, for the first time, the right of ap-pellee to maintain this petition was challenged by demurrer, the grounds of demurrer being as follows:

(1) Petitioner has a plain, adequate, and speedy remedy at law.

(2) The petitioner has another specific remedy against the defendant, to-wit, the right to sue defendant, if any indebtedness due it as a refund of the tax claimed, or to appeal from the order of the board of supervisors, disallowing its claim for said credits, and has no clear legal right to the issuance of mandamus.

(3) The board of supervisors of the defendant county had the right, under the law, to judicially determine whether the petitioner was entitled to its warrant for the funds sought to be recovered. That it judicially determined against the petitioner and disallowed said claim, and having acted thereon, the petitioner has no right to a writ of mandamus against this defendant, and can only exercise its legal and specific remedy by appealing from said order disallowing said claim or suing the defendant for the amount claimed.

This demurrer was overruled, and thereupon appellant refiled its pleas, and there was a trial and judgment awarding the writ as prayed for in the^ petition.

Section 3231, Code of 1906 (section 2533, Hemingway’s Code), provides that: “On the petition of any private person who is interested, the writ of mandamus shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance of which the law specially enjoins as a duty resulting from an office, trust, or station, Avhere there is not a plain, adequate, and speedy remedy in the ordinary course of law.”

Section 311, Code of 1906 (section 3684 Hemingway’s Code), provides: “A person having a just claim against any county shall first present the same to the board of supervisors thereof for allowance; and, if the board shall refuse to allow it, may appeal from the judgment of the board to the circuit court, or may bring suit against the county; and, in either case, if such person recover judgment, the board of supervisors shall allow the same, and a warrant shall be issued therefor.”

In the former opinion in this case, it was held that the auditor and attorney general, in approving the claim under section 4346, Code of 1906 (section 6980, Hemingway’s Code), were not acting judicially, and that “the approval of a claim by these officers does not make it mandatory upon the treasurer or the county board to refund, if they, in good faith, believe there is a good defense to the claim,” and “in cases involving constitutional questions or intricate law points the right exists in the officers representing the public to contes^ liability.”

After the claim of appellee was approved by the auditor and attorney-general, it was presented to the board of supervisors, and the board refused to allow it, and, under the provisions of the said section 311, Code of 1906, ap-pellee then had the right to appeal from this judgment of the board or to institute suit against the county for the amount of its claim, and this statutory right afforded ap-pellee a plain, adequate, and speedy remedy. Since the board of supervisors has disallowed this claim, and it is clear that appellee has a plain, adequate, and speedy remedy in the ordinary course of law, mandamus will not lie to compel the board to issue a warrant therefor, and we think the demurrer to the petition should have been sustained.

The views herein expressed dispose of the case, and therefore it is unnecessary to discuss the questions raised by the other assignment of error.

The judgment of the court below is reversed, the demurrer sustained, and the cause dismissed.

.Reversed and dismissed.