Luter v. Board of Sup'rs

Counsel

Magee Magee, of Monticello, for appellants. It is set down in 18 R.C.L., page 114, paragraph 26, as follows: "Upon the application for the writ (mandamus) the questions which usually arise are (1) is there a duty imposed upon the officer; (2) is the duty ministerial in character; (3) has the petitioner a legal right for the enjoyment, protection or redress of which the discharge of such duty is necessary; (4) has he no other sufficient remedy; and (5) in view of the fact that the issuance of the writ is not always a matter of right, are the circumstances of the case such as will call forth the action of the court?" In the case now before the court every one of these questions, in our opinion, must be answered favorably to the contention of the appellants. Appellants rely in support of their contention upon the following statutes: Sections 2348, 325, 2894, 2897, 2898, 2903 and 1075, Code of 1930. The contention was made in this case that the board of supervisors has already exercised a judicial discretion approving a bond and that this discretion, being judicial, cannot be controlled by mandamus. This position cannot be correct for the reason that the duty prescribed by Section 2894, Code of 1930, is a ministerial duty and it is mandatory that the board shall notify the officer to appear and show cause why he should not be required to give a new bond just as often as such bond, for any reason becomes insufficient and insolvent. In this case nothing is sought in the petition except that the board give notice to the officer as provided for by this statute, the giving of such notice being a ministerial and not a judicial duty. We, therefore, submit that it was mandatory on the board, and especially so, since the demurrer confessed the insolvency and insufficiency of the bond, to notify the clerk to appear and show cause why he should not be required to give a new bond. We do not contend that the board can by mandamus be compelled to approve or disapprove any particular bond, and especially is this true as long as Shotwell v. Covington, 69 Miss. 735 , and Swan v. Gray, 44 Miss. 393 , stand as the law. It is, we think, to be regretted that these two decisions, so much in conflict with reason and justice, so much out of step with modern day progress and enlightenment, virtually condemned as unreasonable by the great Judge who rendered the opinion in the Shotwell-Covington case, supra, should have been allowed to stand so long as the law of this state. Precedent and stare decisis are, and should be, very persuasive with a court, but when they stand as an obstruction to the more wholesome rule of right, reason and justice, they should be discarded. No one can assign a reason for such holdings except that courts are loathe to disturb and overrule former decisions. However, we submit that the two cases referred to have no application here because in the instant case the appellants are seeking only to have appellees discharge an admittedly ministerial duty mandatorily required of them by Section 2894, Code of 1930, and there is no legal escape from the discharge of this duty. The statute is mandatory and must be obeyed by the board, no matter how biased, prejudiced or intimidated they may be. Under the provisions of Section 325, Code of 1930, it is mandatory on the board of supervisors to require the clerk of the board to give a new bond when it shall appear that his official bond is not sufficient. State v. School Board, Quitman County, 181 Miss. 818 . The question in this case, as we see it, is whether the duty imposed upon the board of supervisors by Sections 325 and 2894, Code of 1930, is ministerial or judicial? If the former, appellants are entitled to the relief sought. 18 R.C.L. 116, par. 28. When the relief sought is the enforcement of the performance by an officer or board of a ministerial, and not a judicial act, the writ of mandamus is the proper remedy. Board of Supervisors v. Dean, 120 Miss. 334 , 82 So. 257; Board of Supervisors v. Pidgen, 114 Miss. 274 , 75 So. 117. Relators in a mandamus suit must have a right common to all of them; must have a joint benefit in the performance of the act or duty required or sought by the suit, and must be joint sufferers because of the nondoing; otherwise, they cannot unite in a suit. In our judgment, petitioners, appellants here, meet every condition set out above. Haskins v. Board of Supervisors, 51 Miss. 406 ; Ohlson v. Durfrey, 82 Miss. 213 . Mounger Calhoun, of Tylertown, for appellee. The petition exhibited in this case and the exhibits annexed thereto manifestly show that the board of supervisors has discharged all duties imposed upon it by law. The petition for the writ manifestly showed on its face that the board of supervisors had done all necessary to require the official in question to file a bond and showed further on its face that this bond had been filed and had been approved. In the case of Shotwell v. Covington, 12 So. 260, 69 Miss. 735 , this court held that mandamus would not lie to compel the president of the board of supervisors of a county to approve the bond of a chancery clerk regardless of how arbitrary the action of such official might have been. This same principle was announced in Swan v. Gray, 44 Miss. 393 . In fact, the principle is so well established that we note that the appellants admit the force of the principle in their brief. Notwithstanding a frank acknowledgment of the fact that the question of the sufficiency of the bond in question in this case is not reviewable by mandamus under the decisions of our court, the appellants strongly rely in their brief that the bond in question is wholly insufficient and is void by reason of its insufficiency and argues that the demurrer filed in this case confesses the insufficiency thereof. We take the position that the principle announced in Shotwell v. Covington, supra, is final on this point. The bond in this case was a valid bond and had been filed and approved by the board at the time the petition for the writ of mandamus in this case was filed. Sec. 2901, Code of 1930. The appellants had a plain, adequate, and speedy remedy at law. McHenry v. State, 91 Miss. 562 , 44 So. 831; State Board of Education v. City of West Point, 50 Miss. 638 . The appellants petition for the writ as filed in the court below shows by its exhibits and its allegations that the ministerial duties incumbent by statute on the board in this case have been fully performed and that judgments and final adjudications thereon have been had and appear of record on the minutes of the proceedings of the board. Appellants (plaintiffs in the court below) do not allege in their petition sufficient facts to authorize them under the law to bring the suit at hand. Section 2348, Code of 1930; McKee v. Hogan, 145 Miss. 747 , 110 So. 775 ; American Oil Co. v. Interstate Wholesale Grocers, 104 So. 70 . Argued orally by Breed O. Mounger, for appellee.