123 So. 2d 695 | Miss. | 1960
This case was formerly before this Court and was decided on April 21, 1958. The opinion in that case appears in 233 Miss. 240, 102 So. 2d 198.
On remand to the lower court another decision was rendered in favor of the appellees, from which comes this appeal.
A majority of the Court are of the opinion that everything now involved in the case was decided on the
Formerly Hall and Holmes, JJ., dissented and neither of them sees any reason to change the opinion there expressed, and five of the Judges adhere to their former opinion, and McElroy, J., agrees with them. McG-ehee, C.J., took no part.
Reversed and judgment here for appellant.
ON MOTION TO CORRECT JUDGMENT
The last opinion in this case is reported in 123 So. 2d 695 and in entering the judgment the case seems to be fully covered but it also contains a direction that all funds received from the operation of the Vicksburg Bridge shall be expended in strict accordance with Chapter 283 of the Laws of 1938 and Chapter 422 of the Laws of 1948 of the State of Mississippi, as said statutes have been interpreted by this Court in its opinion rendered in this cause on April 21, 1958.
The appellees have filed a motion to eliminate said provisions from the judgment of the Court and we are of the opinion that the motion should be sustained.
This is a mandamus suit and we think that said provision in the final judgment is entirely too broad and too far-reaching and that the judgment should be amended so as to eliminate said provision from the judgment. The main purpose of this suit was to transfer any funds now on hand in or hereafter received or paid into the “adequate return fund” into the “replacement and improvement fund”. The direction in the judgment that
Then in 34 Am. Jur., “Mandamus”, Sec. 74, p. 864, it is said: ‘ ‘ The proper function of a writ of mandamus is to compel the doing of a specific thing, something which can be neither diminished nor subdivided. It contemplates the necessity of indicating the precise thing to be done, and so is not an appropriate remedy for the enforcement of duties generally, or to control and regulate a general course of official conduct for a long
Also in 34 Am. Jur., “Mandamus”, Sec. 79, p. 868, it is said: “Mandamus is used to compel the performance of a present existing duty as to which there has been an actual default, and it is not granted to take effect prospectively. The writ, that is, will not ordinarily be awarded to compel the performance of an act unless the act is one which is actually due from the respondent at the time of the application.”
The command in the judgment to expend all funds received from the operation of the bridge in strict accordance with Chapter 283 of the Laws of 1938 and Chapter 422 of the Laws of 1948 as said statutes have been interpreted by this Court is entirely too broad and is not within the purview of a suit for mandamus and the motion will therefore be sustained so as to eliminate said provision from the final judgment.
All costs of this Court and in the court below are hereby taxed against Warren County, Mississippi, and against the Vicksburg Bridge Commission of Warren County, Mississippi.
Motion to correct judgment sustained.