Robinson v. Board of Supervisors

62 So. 3 | Miss. | 1913

Beed, J.,

delivered the opinion of the court.

The road commissioners of the Fourth supervisor’s district of Itawamba county presented their, petition to the circuit court, asking’ for a writ of mandamus to compel the board of supervisors of that county to proceed with the issuance and sale of certain road bonds. A demurrer was filed to the petition, which was sustained, and the 'petition dismissed. From this action of the trial court this appeal was taken by the commissioners.

At the May term, 1911, a petition was presented to the board of supervisors of Itawamba county, which contained the names of twenty per cent, of the qualified electors of the Fourth supervisor’s district, asking that the district be permitted to come under the provisions of chapter 149 of the Laws of 1910’, authorizing hoards to construct and maintain public roads in any district of a county. This petition prayed for the issuance of bonds for the purpose of raising funds to build the roads in the sum of nineteen thousand, seven hundred and fifty dollars. The petition was granted, and publication made as required by law. At the November term, 1911, upon the recommendation of the road commisisoners, who had theretofore been appointed, the board made an order providing for the issuance of bonds in the sum of twenty-one thousand, eighty dollars and forty-seven cents. At a subsequent meeting of the board another order was issued, which stated the terms and conditions of the bonds to be issued, provided for their sale, and fixed the amount of the bonds to be sold at twenty-one . thousand dollars. An unsuccessful effort was made to sell the bonds. At the October, 1912, meeting of the board, the road commissioners asked that the amount of the bonds to be issued be changed from twenty-one thousand, eighty dollars and forty-seven cents to nineteen thousand, seven hundred and fifty dollars, stating in the petition, that they understood that an issuance of bonds in excess of the last-named amount would be void. The board would not make the order asked for, and at its February meeting, 1913, entered an order rejecting the petition of the commissioners and refusing to make any further order in the matter. The action of the board in making the last order was the foundation for the petition for writ of mandamus, filed by the road commissioners.

In the demurrer filed by appellee it is claimed that the extraordinary remedy of mandamus does not lie in the present case, and that an ample remedy for whatever rights they had was afforded appellants by an ap.-peal to tlie circuit court. This is sufficient ground to sustain the demurrer in this case. Section 3231 of the Code of 1906 provides that a “writ of mandamus shall he issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law.” Under section 80 of the Code of 1906 an appeal may be taken from a decision of the board of supervisors to the circuit court, where the case, as presented by a bill of exceptions provided for, shall be heard and determined, and the judgment of the board shall be affirmed or reversed, and, if reversed, the court shall render such judgment as the board ought to have rendered. There is therefore provided in the statutes of this state “a plain, . adequate, and speedy remedy in the ordinary course of law” for such cases as the one before us. In the case of State Board of Education v. City of West Point, 50 Miss. 638, it was decided that the writ, of mandamus should not be issued in any case where there was a plain, speedy, and adequate remedy in the ordinary course of law; that, being regarded as one of the highest writs known to our jurisprudence, it can only be invoked when there is a clear and specific right and duty which can be performed, and there is no other speedy and adequate remedy.

In the same case it was held that, where a discretion is left to an inferior tribunal, the writ of mandamus cannot control this discretion. There is certainly a discretion left to the board of supervisors in the proceedings in this case. In 26 Cyc. 158, it is stated that “mandamus will not lie to control or review the exercise of the discretion of any court, board, or officer when the act complained of is either judicial or gwsi-judicial. And while mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in any particular way.” In the same volume, on page 168, it is stated that the writ of mandamus will lie ‘ ‘ only in cases of last necessity and where the usual forms of procedure are powerless to afford relief — where there is no other clear, adequate, efficient, and speedy remedy. ’ ’ In the case of McHenry v. State, 91 Miss. 562, 44 South. 831, 16 L. R. A. (N. S.) 1062, it was held that mandamus was an extraordinary writ, and ought not to be resorted to where the purpose sought to be accomplished can otherwise reasonably be accomplished.

The trial court was correct in sustaining the demurrer and dismissing the petition, and the case is therefore affirmed.

Affirmed.