Opinion
No. 34203.
June 10, 1940.
1. MANDAMUS.
Where the board of disability and relief appeal did not refuse to act on application for benefits allegedly due to surviving widow of deceased policeman of city of Clarksdale, from disability and relief fund for firemen and policemen, but the board in its discretion denied relief, mandamus would not lie to control the discretion and require benefits to be paid to the widow (Laws 1930, chap. 55).
2. MUNICIPAL CORPORATIONS.
Under statute, the board of disability and relief appeal is given discretion in deciding whether a plaintiff is entitled to relief as beneficiary of disability and relief fund for firemen and policemen, and a plaintiff's right to relief depends upon facts heard and found in an appropriate proceeding (Laws 1930, chap. 55, sec. 9).
3. MANDAMUS.
Where discretion is left to an inferior tribunal, a writ of mandamus can compel the tribunal to act, but cannot control the discretion.
APPEAL from the circuit court of Coahoma county; HON. WM. A. ALCORN, Judge.
W.W. Venable, of Clarksdale, for appellant.
The circuit court was without jurisdiction because the findings of the Board of Relief and Disability Appeals is made final by the Statute, Chapter 55, Laws 1930, Sections 8 and 9, no appeal to the courts being provided for therein, and because the statute creates new rights and gives a specific remedy for their enforcement without right to appeal to the courts, and where this is the case the remedy with its limitations is exclusive.
Hargrove v. Baskin, 50 Miss. 194; Fourth National Bank v. Franklyn, 120 U.S. 747, 30 L.Ed. 825; Pollard v. Bailey, 87 U.S. 20, 22 L.Ed. 376; 1 Am. Jur. 411, sec. 12; 18 Am. Jur. 139, sec. 15. For illustrative cases see notes: 85 A.L.R. 672; 87 A.L.R. 603; 88 A.L.R. 912; 105 A.L.R. 1027.
Appeals or review by courts are not a matter of right but are creatures of statute so that if no review is granted none exists.
Worley v. Pappas, 161 Miss. 330; Steel v. Shirley, 9 S. M. 382; Shapleigh Hwd. Co. v. Brumfield, 159 Miss. 175; Carroll v. Board of Police, 28 Miss. 38; Bearman v. Board of Police, 42 Miss. 237; Wright v. Edwards Hotel, etc., Co., 101 Miss. 470; National Exchange Bank v. Peters, 144 U.S. 570, 36 L.Ed. 545; Campbell v. Youngsen, 80 Neb. 322, 118 N.W. 1053; In re: Board of Commissioners of City of Superior, 196 Wis. 562, 221 N.W. 382; Phelps v. Board of Appeals of City of Chicago, 325 Ill. 625, 156 N.E. 826; Board of Finance v. First National Bank of Jeffersonville, 71 Ind. App. 290, 124 N.E. 768; 3 C.J. sec. 42, note 95.
Where a new right or remedy is created by the legislature, with respect to a subject within its power, failure to provide for a judicial review does not render the statute unconstitutional as affecting rights without due process of law or denying access to the courts.
Luther v. Borden, 7 How. 1; Doe v. Braden, 15 How. 635; Den. v. Hoboken Land and Improvement Co., 18 How. 272, 376, 15 L.Ed. 372; Commissioners of Immigration v. Ju Toy, 198 U.S. 253, 49 L.Ed. 1040; Lem Moon Sing v. U.S., 158 U.S. 538, 39 L.Ed. 1082; Hibbin v. Smith, 191 U.S. 310, 48 L.Ed. 195.
Where the law has confided to a special tribunal authority to hear and determine a matter arising in the course of its duties, a decision by it within the scope of its authority as to questions of fact is conclusive against collateral attack.
Kelly v. Wimberly, 61 Miss. 548; Wright v. Edwards Hotel Co., 101 Miss. 470; Hebbin v. Smith, 191 U.S. 310, 48 L.Ed. 195; Commissioners of Immigration v. Ju Toy, 198 U.S. 253; Gonzales v. Williams, 192 U.S. 1, 48 L.Ed. 317; Qumby v. Conlau, 104 U.S. 420, 426, 26 L.Ed. 800, 802; U.S. v. California, etc., Co., 148 U.S. 31, 43; 37 L.Ed. 354, 360; Bales and G. Co. v. Payne, 194 U.S. 106, 109, 48 L.Ed. 894, 895; Foley v. Harrison, 15 How. 44, 14 L.Ed. 766; Providence Rubber Co. v. Goodyear, 9 Wall. 989, 19 L.Ed. 569; Shepley v. Cowan, 91 U.S. 340, 23 L.Ed. 427; Moore v. Robbins, 96 U.S. 535, 24 L.Ed. 850; Hadden v. Merritt, 115 U.S. 25, 29 L.Ed. 333, 334; Lee v. Johnson, 116 U.S. 51, 29 L.Ed. 571; Bushnell v. Leland, 164 U.S. 684, 685, 41 L.Ed. 598, 599; Bates and G. Co. v. Payne, 194 U.S. 106, 48 L.Ed. 894.
There was no jurisdiction in the circuit court in a mandamus proceeding to set aside or ignore the findings and judgments of the Board of Relief and Disability and the Board of Relief and Disability Appeals, and to enter a judgment for them contrary to their own findings and judgments.
Writ of mandamus will not be issued to direct inferior tribunal to decide issues of fact in a particular way, when law has invested tribunal with original jurisdiction to decide the question.
City of Jackson v. McPherson, 158 Miss. 152; Love v. Lincoln County, 171 Miss. 450; Alex Loeb, Inc., v. Trustees, 171 Miss. 467; State v. School Board, 181 Miss. 818.
Writ of mandamus issues only to compel an inferior tribunal to act, but it cannot control discretion of inferior tribunal or dictate what its action shall be.
Alex Loeb, Inc., v. Board of Trustees, Pearl River Junior College, 171 Miss. 467.
In mandamus proceedings appellee cannot recover judgment for the sum, payment of which she seeks to have enforced.
American Oil Co. v. Bishop, 163 Miss. 249.
The court cannot in mandamus proceedings control the future action of the Board of Relief and Disability by ordering that they issue, in the future, monthly warrants for $75 since it is beyond the power of the court to issue mandamus to take effect prospectively.
Wood v. State, 169 Miss. 790.
Because a statute does not give a right to a judicial review does not confer upon a court jurisdiction to correct or change findings of fact made by the lower tribunal.
Woodward Iron Co. v. Dean, 217 Ala. 530, 117 So. 52; 60 A.L.R. 436.
Mandamus is not appropriate to review the action of a tribunal in any matter involving the examination of evidence and the decision of questions of law and fact since such a duty is not ministerial.
Ex parte Secombe, 19 How. 9, 15 L.Ed. 565; In re Humes, 149 U.S. 192, 37 L.Ed. 698; In re Pollitz, 206 U.S. 323, 51 L.Ed. 1081; McCrea v. Roberts, 89 Md. 238, 44 L.R.A. 485; Marcum v. Ballot Coms., 42 W. Va. 263, 36 L.R.A. 296; In re Rice, 155 U.S. 396, 39 L.Ed. 198; Crocker v. Superior Court Justices, 208 Mass. 162, 94 N.E. 369.
Petitioner avers that the evidence was uncontradicted and sustained her contention and so the entry of judgment against her was an error of law, so that, assuming the right to judicial review she had adequate remedy by certiorari and so mandamus would not lie.
Code of 1930, sec. 73; McHenry v. State, 91 Miss. 562; Bd. of Supr's v. Lee, 147 Miss. 99.
It was error for the court below to enter a judgment without hearing evidence, waiving question of jurisdiction heretofore discussed.
It is true that a demurrer was filed to the petition for mandamus which admitted all facts well pleaded.
There is no authority to make testimony or statements of witnesses exhibits to a pleading, and hence a demurrer does not admit the evidence.
Code 1930, secs. 526, 527; Quarles v. Hucherson, 139 Miss. 356; McKinney v. Adams, 95 Miss. 832; Dulaney v. Starke, 7 S. M. 375; Panola County Bank v. J.O. Nessen Lbr. Co., 117 Miss. 593; First National Bank v. Adams, 123 Miss. 279; Barnes v. Jones, 139 Miss. 675, 43 A.L.R. 673; Pitts v. Baskin, 140 Miss. 443; Love v. Fidelity and Deposit Co. of Md., 162 Miss. 532; Hardeman v. English, 79 Ga. 387, 390; State v. Adams, 78 Ia. 292; Herrick v. Swomley, 56 Md. 4; Mesner v. Darling, 44 Mich. 438; Lipscomb v. Lyon, 19 Neb. 521; Kerr v. Lemsford, 31 W. Va. 677; Rounds v. State, 57 Wis. 52.
Fred H. Montgomery, of Clarksdale, for appellee.
The attempt to adjudicate rights of parties under Chapter 55, Laws 1930, Section 8, creating Board of Relief and Disability and Board of Disability and Relief Appeals, is contrary to and violative of Sections 14, 24, and 31 of the Constitution.
Such legislation disregards entirely constitutional and statutory provisions now in force, is contrary thereto, and is wholly and utterly void.
Instead of a trial by jury from the body of the county where the suit is tried, there was substituted a group of men called a board to try all cases arising under Chapter 55, supra. In a trial conducted according to the Constitution and statute laws, except Chapter 55 of the Laws of 1930, a jury would be drawn in regular course. The law which prohibits and prevents a trial by jury is contrary to one of the most sacred provisions of the Constitution and is void. Constant efforts are made to substitute make-shift methods for trials by boards of individuals other than by a jury; but no better system has yet been discovered for trial of causes than the jury system as practiced throughout the United States.
The Constitution makes no provisions for the disposition of personal and property rights by boards, however created.
Moreau et al., School Trustees v. Grandich, 114 Miss. 560, 75 So. 434.
Insofar as Chapter 55, supra, undertakes or is designed to compel litigants to try causes in a manner other than the way pointed out by the Constitution it is utterly void and of no effect.
Isom v. M.C.R. Co., 36 Miss. 300.
Mandamus is the proper remedy.
Buckley v. Roche, 4 P.2d 929; State ex rel. Haberlan v. Love, 89 Neb. 149.
There is no provision of law under the Constitution, which sanctions the trial of causes, civil or criminal, by a board. These functions have ever been confided exclusively to judges and juries.
In the case of Chicago, etc. R.R. Co. v. Moss Co., 60 Miss. 641, the question here involved was before the court. The Legislature had adopted an act providing for the infliction of attorney's fees in cases brought by citizens of the state against corporations, where an appeal was prosecuted from lower court to the Supreme Court. The court condemned the legislation in no uncertain terms.
Railroad Co. v. Dodd, 105 Miss. 23 (43).
The action of the boards in assuming to adjudicate rights of the parties was coram non judice.
The demurrer interposed to amended bill confessed the truth of all allegations of fact.
The allegations of fact well pleaded in a declaration are confessed to be true on demurrer.
State v. Nichols, 106 Miss. 419; Polk v. Hattiesburg, 109 Miss. 872; Barnes v. Jones, 139 Miss. 675; Williams v. Williams, 187 So. 209.
We are unable to find decisions of this court, construing Chapter 55, Laws 1930, and we believe there are none. But we have collected a number of cases from other jurisdictions, which are believed to directly sustain the contentions here made.
Maitland v. Bd. of Police Commissioners, 107 A. 411, 93 N.J.L. 150; Buckley v. Roche, 4 P.2d 929.
A pension fund, as the law contemplates, is not a gratuity or a gift. A pension is gratuity where it is granted for services previously rendered and which at the time they were rendered give rise to no legal obligation.
Odea v. Cook, 169 P. 366; Mahan v. Bd. of Education, 63 N.E. 1107, 89 A.S.R. 810; State v. Love, 131 N.W. 196, 34 L.R.A. (N.S.) 607; Ann. Cas., 1912C, 542.
But where services are rendered under a pension statute the pension becomes a part of the compensation for services, and so in a sense a part of the contract of employment.
People v. Abbott, 274 Ill. 380, 113 N.E. 96.
And it is fundamental that pension statutes must be liberally construed and not capriciously interpreted.
Walton v. Cotton, 60 U.S. (9 How.) 355, 15 L.Ed. 658.
Argued orally by W.W. Venable, for appellant, and by Fred H. Montgomery, for appellee.
Mrs. Frank Harris filed a petition for mandamus in the Circuit Court of Coahoma County against the City of Clarksdale, a municipal corporation, which had adopted Chapter 55 of the Laws of 1930, providing for a relief fund for firemen and policemen, and providing for the disbursements, regulations of the same, and how revenue should be raised for such purposes. It was alleged that the city came under the terms of the act, had adopted the provisions thereof, and that the funds were to be raised by a one mill ad valorem assessment on taxable property situated within the city, by gifts or donations made by any person or corporation for such purposes, by a tax levy amounting to one per cent of the monthly salaries of each member of the fire and police departments, and also by such sum or sums the municipality might receive from insurance companies for the benefit of said fund.
It was alleged that for more than seventeen consecutive years prior to his death, Frank Harris, husband of the plaintiff, was employed as a member of the police department of the defendant city; he was actively engaged in the discharge of his duties as such; that during the tenure of service, he was required, in the discharge of his duties, to stand and walk on his feet on concrete pavements for the larger part of the day; that his working hours were normally long, to-wit: twelve hours per day; that he was frequently called upon and did perform duties after working hours; that his sleep was frequently disturbed and broken by such services; that, in a proper discharge of said duties, he was often exposed to severe cold, to excessive heat, and inclement weather, both night and day; when assigned to day duty, he was often called out on extraordinary night service; that, when he was employed by the city in the police department, he was physically sound and enjoyed good health; that, as a direct result of the labor and service as a member of the police department, his health became impaired, and he developed chronic heart trouble, accompanied by dropsy and nephritis; that, because of the ordinary duties devolving upon him, his state of ill health was aggravated, and despite medical treatment, he died on February 19, 1937, leaving his widow as his sole surviving heir at law. It was further alleged that his death was superinduced and was a direct and proximate result of the performance of the duties required of him by the police department; at the time of his death he was being paid $150 per month for his services; that, as beneficiary of said Disability and Relief Fund for Firemen and Policemen, she was entitled to receive $75 per month during her lifetime; that the City of Clarksdale had refused and failed to pay the installments as provided by law; she prayed for judgment for the past due installments, and for a mandamus directing the city to forthwith make such payments, with lawful interest; and on the first of each succeeding month thereafter to pay her $75 for the balance of her natural life.
The petition for mandamus is demurred to, and thereupon the plaintiff filed an amended petition for mandamus, setting out the facts alleged in the first petition; and also setting out the proceedings of the Board of Disability and Relief of Clarksdale (as provided under Chapter 55, Laws of 1930), and its decision denying Mrs. Harris such pension. Appeal from the decision of such board was made to the Board of Disability and Relief at Jackson, which board was created by Section 9, Chapter 55, Laws of 1930. The question was considered by this board, and the judgment of the Board at Clarksdale was affirmed. A transcript of the proceedings, certified to by a stenographer, was set up as an exhibit to the petition for mandamus. The judgment of the board at Clarksdale bears date of March 12, 1937. The original petition for mandamus was filed August 25, 1939. The Board of Disability and Relief Appeals at Jackson, in its judgment, recited the following as conclusions of fact to be drawn from the record and evidence in the case:
"1. Mr. Frank Harris' death was caused by heart and kidney disease from which he had been suffering for more than a year prior to his death. Said disease was not directly attributable to Mr. Harris' activities as a policeman but would have resulted inevitably from any physical exertion and mental stress in any other occupation. Said disease was constitutional and is definitely associated with persons of Mr. Harris' disposition, habits and temperament when they have reached the age of Mr. Harris.
"2. The heart and kidney disease from which Mr. Harris died was aggravated by his duty as a policeman and death probably ensued sooner because of these activities than it would have occurred had Mr. Harris been engaged in a less strenuous work."
The testimony, which is not necessary to set forth, made an exhibit to the petition for mandamus, was such that, in our opinion, the board could draw different reasonable conclusions under the two or more reasonable theories, and the finding of the board was permissible; but, if it were not justified by the evidence, mandamus would not be a remedy to test the matter. If the judgment had not been rendered on the facts, and if the board had been mandatorily under duty to render a different judgment, probably certiorari would have been the remedy. Cf. Holberg v. Town of Macon, 55 Miss. 112. However, we are not called upon now to say whether that remedy was available if seasonably applied for. Mandamus was not a remedy under Section 2348 of the Code of 1930. It is clear from the reading of Chapter 55 of the Laws of 1930 that the Board of Disability and Relief Appeal is given discretion in deciding whether or not a plaintiff is entitled to relief. A plaintiff's right to relief depends upon facts heard and found in an appropriate proceeding; and the board (prescribed by Chapter 55) did not refuse to act, but did act; and consequently, mandamus, under our jurisprudence, was not available for testing the correctness of their judgment and finding. Where discretion is left to an inferior tribunal or board, the writ of mandamus can only compel it to act but cannot control the discretion. Madison County v. Alexander, Walk. 523; Attala County v. Grant, 9 Smedes M. 77, 47 Am. Dec. 102; Swan v. Gray, 44 Miss. 393; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State Board of Education v. West Point, 50 Miss. 638; Monroe County v. State, 63 Miss. 135; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Cole v. State, 91 Miss. 628, 45 So. 11; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Love v. Lincoln County, 165 Miss. 860, 147 So. 877; Thomas v. Price, State Auditor, 171 Miss. 450, 158 So. 206; Alex Loeb, Inc. v. Board of Trustees, Pearl River Junior College, 171 Miss. 467, 158 So. 333; State v. County School Board of Quitman County, 181 Miss. 818, 181 So. 313; American Oil Co. v. Bishop et al., 163 Miss. 249, 141 So. 271, 765; Wood v. State, 169 Miss. 790, 142 So. 747.
We do not think it necessary to decide the many other questions presented in this case because of the fact that mandamus was not an available remedy; and we are not called upon now to decide what rights might have been adjudged under a different proceeding timely instituted. The judgment of the court below is reversed and the petition for mandamus is dismissed.
Reversed and dismissed.