Summary
In State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614, 616, the court held that the proper venue of a mandamus action against the State Highway Commission to compel it to appraise and reimburse a county for its proportionate value of a bridge was in the county where the Highway Commission was located rather than in the county where the bridge was located.
Summary of this case from State v. District Court of Nowata CountyOpinion
Nos. 35286, 35289.
May 17, 1943. Suggestion of Error Overruled September 27, 1943.
1. MANDAMUS.
"Mandamus" is a purely personal action.
2. MANDAMUS.
Where purpose of mandamus action was to compel State Highway Commission, which had permanent office in Hinds County, to appraise, and reimburse Hancock County its proportionate value of, bridge which connected Hancock and Harrison Counties and which had been taken over by the Highway Commission, the venue of the action was in Hinds County (Laws 1936, ch. 190; Code 1930, sec. 495, as amended by Laws 1940, ch. 248; secs. 2349, 5004, 5006(c); Laws 1940, ch. 233; Loc. Laws 1924, ch. 512).
3. DISTRICT AND PROSECUTING ATTORNEYS.
District attorney did not have authority to institute and maintain mandamus action in name of state for use and benefit of county outside of the territory of his district (Code 1930, secs. 2348, 4363).
4. DISTRICT AND PROSECUTING ATTORNEYS.
District attorney for district in which Hancock County was located had authority to maintain in Hinds County, which was outside territorial limits of his district, an action for benefit of Hancock County, where proper venue of the action was in Hinds County (Code 1930, sec. 4363).
5. DISTRICT AND PROSECUTING ATTORNEYS.
Right to bring mandamus action to compel State Highway Commission, which had permanent office in Hinds County, to appraise, and reimburse Hancock County its proportionate value of, bridge which had been taken over by the Highway Commission was not in Attorney General exclusively, but district attorney of district in which Hancock County was located had right to bring the action in Hinds County (Code 1930, secs. 2348, 3663, 3665, 4363).
6. PLEADING.
Demurrer admits facts alleged in petition.
7. HIGHWAYS.
Statute providing that whenever paved highway built at local expense becomes part of continuous paved state highway, the State Highway Commission "shall" cause to be appraised the pavement on the highway and shall pay therefor gives a positive and clear command and leaves no discretion in the Commission (Code 1930, sec. 5004).
8. HIGHWAYS.
Where State Highway Commission takes over paved highway or bridge constructed at local expense, the local unit which has paid the expense is entitled to reimbursement (Code 1930, sec. 5004).
9. HIGHWAYS.
State Highway Commission taking over, as part of state highway system, bridge constructed by county was required to make an appraisal of county's proportionate value of bridge, even if Commission did not have money on hand with which to reimburse the county (Code 1930, sec. 5004).
10. STATES.
Statute requiring State Highway Commission to reimburse local unit which has paid expenses for pavement of highway or bridge taken over by the Commission as part of state highway system is not unconstitutional on ground that it provides for a "gift of public funds" (Code 1930, sec. 5004).
11. HIGHWAYS.
Statute requiring State Highway Commission to reimburse local unit which has paid expenses for pavement of highway or bridge taken over by the Commission as part of state highway system does not violate Constitution authorizing legislature to enact statutes for "construction and maintenance" of state highways (Code 1930, sec. 5004; Const. 1890, sec. 170).
12. HIGHWAYS.
The words "construction and maintenance" in Constitution authorizing legislature to enact statute for construction and maintenance of state highways are to be given a broad rather than a narrow construction, and they include the right to pay for a necessary link of roadway already constructed (Const. 1890, sec. 170).
APPEAL from circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
Jones Ray, of Jackson, and Evelyn Hunt Conner and Gex Gex, all of Bay St. Louis, for appellants.
R.C. Cowan, district attorney for the second judicial district, had the right to bring the suit, as relator, in the circuit court of Hancock County.
Madison County v. State Highway Commission, 191 Miss. 192, 198 So. 284; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 75; Dean v. Brannon, 139 Miss. 312, 104 So. 173; State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795; Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888; Stanley v. Cruise, 134 Miss. 542, 99 So. 376; State ex rel. Gully v. Massachusetts Bonding Ins. Co., 187 Miss. 66, 191 So. 285; Code of 1930, Secs. 495, 2348, 2349, 4993; Code of 1930, Sec. 5003, subd. 3(c); Code of 1930, Sec. 5006, subd. (c); 15 C.J. 729, Sec. 21; 15 C.J. 735, Sec. 35.
Both as to subject matter and venue, the jurisdiction of the circuit court of Hancock County was properly invoked, and the court improperly ordered the transfer of the suit to the circuit court of Hinds County.
The order for the transfer from Hancock County to Hinds County was based solely upon Chapter 233 of the Laws of 1940, which provides that in cases where jurisdiction is present but venue is lacking the cause shall, upon objection of the defendant, be transferred to the county of the proper venue.
Where there is an order for a change of venue in a case not authorized by law, the court to which the transfer is ordered may direct the case to be re-transferred.
67 C.J. 215, Sec. 358.
A party who procures a change of venue is in no position to object to a trial in the court to which he has caused the venue to be changed, unless such court is entirely without jurisdiction.
Coleman v. Floyd, 31 N.E. 75; 67 C.J. 224, Sec. 369.
The Commission is now in no position to object to a hearing in the court to which it obtained a transfer of the cause.
On a change of venue the duty to represent the state devolves upon the prosecuting attorney of the county to which the cause is removed.
18 C.J. 1338, Sec. 80; 27 C.J.S. 396, Sec. 12, citing Bevington v. Woodbury County, 78 N.W. 222; State v. Whitworth, 66 P. 748; Fuller v. Madison County, 50 N.W. 255; Gandy v. State, 43 N.W. 747; Peo. v. Neff, 84 N.E. 63.
The rule is that the prosecuting attorney is bound to follow the case instituted by him into whatever courts it may be transferred.
Moreland v. Marion County, 17 F.Cas. 741, Case No. 9, 794; Hennepin County v. Robinson, 16 Minn. 38; Stone v. State (Fla.), 71 So. 634; Johns v. State (Fla.), 197 So. 791; Hall v. State (Fla.), 187 So. 392; 18 C.J. 1311, Sec. 36.
Following either of the rules above announced, the case should have been allowed to proceed, either upon the relation of the district attorney for the seventh judicial district, into which the case had been removed, or upon the relation of the district attorney for the second judicial district, whose duty it was to follow the case to whatever district it had been transferred.
If the court should hold — as contended for by the appellees — that such a suit can be maintained on behalf of the counties, only upon the petition of the Attorney General, the effect of such a decision would be to permit the Attorney General to do exactly what this court has held he could not do — that is to say, by his opposition to such a suit upon the relation of one of the seventeen district attorneys, he would render those district attorneys powerless to act in a case where, by his silence or consent, they could act. He would thus be permitted to encroach upon the powers of the district attorneys, delegated by statute, a thing which this court has already stated he could not do.
Capitol Stages v. State, 157 Miss. 576, 128 So. 759; Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808; Madison County v. State Highway Commission, 191 Miss. 192, 198 So. 284; Code of 1930, Sec. 3665.
The language of Section 5004, Code of 1930, is plain and unambiguous and the courts will not read into such a statute any other meaning than that expressed.
Roberts v. United States ex rel. Valentine, 176 U.S. 221, 231, 20 S.Ct. 376, 44 L.Ed. 443.
The Highway Commission having been vested with no discretion in the performance of its duties as set out in Section 5004 and having refused to perform its duty resulting from its office, then clearly the county is entitled to the writ sued for, for that is the very purpose for which Section 2348, Code of 1930, was enacted.
Chatters v. Coahoma County, 73 Miss. 351, 19 So. 107; Brown v. Owen, 75 Miss. 319, 23 So. 35; State ex rel. District Attorney v. Simmons, 70 Miss. 485, 12 So. 477; Bourgeois v. Fairchild, 81 Miss. 708, 33 So. 495; White v. Miller, 159 Miss. 598, 132 So. 745; Gordon et al. v. Wooten et al., 168 Miss. 717, 152 So. 481; Board of Supervisors of DeSoto County v. Dean, 120 Miss. 334, 82 So. 257; Town of Carrollton v. Town of North Carrollton, 109 Miss. 494, 69 So. 179; Yerger v. State, 91 Miss. 802, 45 So. 849; City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; Eagle Lumber Supply Co. v. Robertson, 161 Miss. 17, 135 So. 499; Rock Island Co. v. United States, 71 U.S. (4 Wall) 435, 18 L.Ed. 419; People v. New York, 45 Barbour's 473, affirmed 3 Keyes 81; Watts v. Carroll Police Jury, 11 La. Ann. 141; Pumphrey v. Baltimore, 47 Md. 145, 29 Am. Rep. 446; State v. Bangor, 98 Me. 114, 56 A. 589; Will County v. People, 110 Ill. 511; Madison County v. People, 16 Ill. A. 305; United States v. Washington, 28 F.Cas. 16646, 2 Cranch CC. 174; 38 C.J., Secs. 365, 366.
As to the right of the Highway Commission to refuse to make the appraisal and refund to the county, on the ground that it lacks the funds or that the provision of the statute would detrimentally affect the state-wide public interest, a sufficient answer to that contention is contained in the opinion in the case of Board of Supervisors of Monroe County v. State, 63 Miss. 135.
In the case of Trahan v. Highway Commission, 169 Miss. 732, 151 So. 178, the constitutionality of the entire chapter (Chapter 47, Laws of 1930, Secs. 4989-5021, Code of 1930) was challenged. This court held that since the plaintiffs in that suit had shown no damages which might result to them by reason of the acts complained of, they had no justifiable interest therein. We submit that that statement covers the present situation like a blanket. The Highway Commission as an entity is not concerned with what damages may flow toward other departments of government or even individuals living in the state. No private right of the Commission will be injured or affected in any way, if it should be commanded to perform the duties with which it is charged under Section 5004 of the Code of 1930. The Commission, by virtue of Section 170 of the Constitution was permitted to be vested and charged with duties which otherwise were duties of the counties, through their boards of supervisors, and the only purpose for the creation of the Commission was to permit the carrying out of a state-wide highway program, for the benefit of all the counties, so that each portion of the state would be benefited equally thereby. To that end it was necessary, in an equitable adjustment of the rights of the various counties, when they released their control over the roads and bridges theretofore solely within the jurisdiction of the counties in which such roads and bridges lay, to compensate them for the amounts which they had expanded; and for that equitable and just purpose Section 5004 was enacted by the legislature.
The opinion of the court in the case of State ex rel. Knox v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541, we submit is a complete answer to all assignments relating to the constitutionality of the statutes referred to.
See also Simpson County v. Ball, 160 Miss. 241, 134 So. 162; Northern Drainage District v. Bolivar County, 111 Miss. 250, 71 So. 380; Alabama V.R. Co. v. Graham, 171 Miss. 695, 157 So. 241; Cumberland Telephone Telegraph Co. v. McCorkle (Miss.), 54 So. 450; Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209; State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596; Johnston v. Reeves Co., 112 Miss. 227, 72 So. 925; Hart v. State, 87 Miss. 171, 39 So. 523, 112 Am. St. Rep. 437; Tucker Printing Co. v. Board of Supervisors of Attala County, 171 Miss. 608, 158 So. 336; In re Opinion of the Justice, 234 Mass. 612, 127 N.E. 635, 637; Martin County v. Wachovia Bank Trust Co., 178 N.C. 26, 100 S.E. 134; Huidekoper v. Hadley et al., 177 F. 1, 100 C.C.A. 395, cert. den. 32 S.Ct. 529; 11 C.J.S. 1000, Sec. 15.
If the position of the Highway Commission that only the district attorney for the district in which one of the counties affected by the statute lies can appear on behalf of that county, but that the mandamus proceeding can be maintained only in Hinds County, wherein the offices of the Highway Commission are located, and that no district attorney can act outside his district, then the effect of such a construction of the law would be: (1) The statute can be enforced only by writ of mandamus. (2) Writ of mandamus can be obtained only upon petition of the district attorney of the seventh judicial district. (3) The district attorney for the seventh judicial district can appear only for such counties as lie within the seventh judicial district. (4) Therefore, only counties within the seventh judicial district may compel enforcement of the statute by means of mandamus.
To give the statute this interpretation would mean that the legislature in enacting Section 5004, singled out only such counties which lay within the seventh judicial district, and which might construct highways at their own expense, and conferred upon them, and them alone, the right to be reimbursed therefor, or the right to compel reimbursement. Certainly no such absurdity was done or intended.
Section 5006, Code of 1930, which is also a part of Code chapter, under the provisions of which the Highway Commission was created, subdivision (c), provides for suits by and against the State Highway Commission, and specifically designates it as a body corporate to be sued in any court having jurisdiction of the subject matter. Yet, in the two cases herein discussed, both of which are now on appeal in this court, that body has definitely undertaken to escape suit, by maintaining that it can be sued only in Hinds County, in the first instance, and that suit cannot be maintained in Hinds County on behalf of Hancock County; the simple effect of which is that up to the present time, Hancock County, being limited to the provisions of the mandamus statute for the enforcement of its rights, has been dragged from one county to the other for over two years, and up to this time has never succeeded in having its cause presented to the courts. Certainly the legislature never intended that any interpretation should be placed upon the statute the effect of which could or would give rise to such a situation.
In drawing the above conclusion, we are not unmindful of the assertion made in the court below by the Highway Department that the alternative is to have such petition filed by the state on the relation of the Attorney General; but that still does not solve the question, because, in the first place, under the law, the Attorney General is required to give legal advice to and appear and represent the Highway Department, when it comes into court; and in the second place, it requires no great stretch of the imagination to conclude that if requested to do so, the Attorney General would refuse to bring such suit, particularly when it is to be assumed that the Highway Department is acting upon his advice in refusing to obey the mandates of the statute; and in the third place, such a construction would still leave those counties within the seventh judicial district the right to petition for mandamus upon the relation of the district attorney for that district, and other counties outside that district would be left with no remedy whatever.
A close examination of the mandamus statutes will clearly show that no such absurdity was intended, because after providing for the method in which the petition for mandamus is to be filed, the very next section (2349) states in plain language that any district attorney may act, either within or without his district, because it is provided that the suit shall be filed in the circuit court of the county in which the defendant may be found (not where the plaintiff or the relator may be found), and further if the judge of that court be interested, the petition may be filed in an adjoining circuit court district. Certainly if Section 2348 meant that the district attorney could only appear in the courts of the district which he represents, then the enactment of the quoted part of Section 2349 was pure folly on the part of the legislature, since the district attorney would lose his identity in an adjoining circuit court district and no suit would be maintainable there, even in the face of the statute, under the interpretation as insisted upon here by the Highway Department.
Again, we have in mind the argument advanced by the Highway Department that the provisions of the mandamus statute giving the right to a district attorney to file the petition must be interpreted to mean a district attorney acting within his district and representing a county within that district; that the power of a district attorney to act in mandamus cases is limited by such other statutes as prescribe generally the rights and duties of district attorneys. In answer to that, we say that if the legislature had intended the statute to read as interpreted by the Highway Department, it would have inserted those words in the statute; and further, as held by this court in the case of Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808, the writ of mandamus is distinct from ordinary suits; the statute conferring that right is not to be read in conjunction with any other statute; it is not to be abridged or enlarged by the wording of any other statute.
Greek L. Rice, Attorney General, by Russell Wright, Assistant Attorney General, E.S. Richardson, of Philadelphia, H.W. Hobbs, of Jackson, and B.H. Loving, of West Point, for appellee.
The circuit court of Hancock County has no jurisdiction over the subject matter of this cause.
Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907; Barnett v. Ring, 55 Miss. 97; Smith v. Mulhern, 57 Miss. 591; Baum v. Burnes, 66 Miss. 124, 5 So. 697; Campbell v. Triplett, 74 Miss. 365, 20 So. 844; Anderson v. Love, 169 Miss. 219, 151 So. 366; Brashier v. J.C. O'Connor Sons, 181 Miss. 872, 180 So. 67; State ex rel. Gully, v. Massachusetts Bonding Ins. Co., 187 Miss. 66, 191 So. 285; McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847; Ravesies v. Martin, 190 Miss. 92, 199 So. 282; Cook v. Pitts, 114 Miss. 39, 74 So. 777; Dean v. Brannon 139 Miss. 312, 104 So. 173; Lewis v. Sinclair, 126 Miss. 16, 88 So. 401; Stanley v. Cruise, 134 Miss. 542, 99 So. 376; Code of 1906, Sec. 707; Code of 1917, Sec. 486; Code of 1930, Secs. 127, 363, 495, 2349, 3081, 4993; Code of 1930, Sec. 5006, sub-secs. 3, (m); Laws of 1908, Ch. 166; Laws of 1918, Ch. 149; Laws of 1926, Ch. 155; Laws of 1940, Chs. 233, 248; Griffith's Mississippi Chancery Practice, Sec. 155, p. 153; 32 C.J. 287.
Only where the court had jurisdiction of the subject matter was it authorized to transfer this cause to the circuit court of Hinds County.
This suit is not a suit against the State of Mississippi and, therefore, the Attorney General is not prohibited from filing it and is the only person who can, under the law, file this suit.
Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Capitol Stages v. State ex rel. Hewitt, 157 Miss. 576, 128 So. 759; Dunn Construction Co. v. Craig, 191 Miss. 682, 2 So.2d 166; Mississippi Central R. Co. v. Maples, 107 Miss. 720, 65 So. 644; Huidekoper v. Hadley, 177 F. 1, 100 C.C.A. 395, 32 S.Ct. 529; Code of 1930, Secs. 2348, 5004; Laws of 1936, Ch. 182, Sec. 10; Laws of 1938, Ch. 130, Sec. 3; 59 C.J. 312; 67 C.J. 224, Sec. 369.
If this suit is a suit against the Highway Commission as to duties involving discretion and is, therefore, a suit against the state, then mandamus will not lie to regulate the discretion.
Madison County Court v. Alexander, Walk. (1 Miss.) 523; Board of Police of Attala County v. Grant, 9 Smedes M. (17 Miss.) 77; Swan v. Gray, 44 Miss. 393; City of Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State Board of Education v. City of West Point, 50 Miss. 638; Board of Supervisors of Monroe County v. State, 63 Miss. 135.
It seems clear that any supposed cause of action that appellant may have against the appellee must rest upon Section 5004, Code of 1930. It is clear that Section 5004 is out of harmony with the dominant and controlling sections of Chapter 47, Laws of 1930 (Code of 1930, Ch. 122), so much so that it stands apart therefrom, although embraced in the same enactment, and particularly is this true when Section 5004 is weighed against Section 170 of the Mississippi Constitution and the other statutes adopted pursuant to the constitutional provision, relative to the construction and maintenance of state highways.
Hancock County is a subdivision and agency of the State of Mississippi. It is subject to legislative control, and its highways may be and were taken over by the State of Mississippi without compensating appellant therefor, particularly the bridge involved in this suit. Whatever appellant contributed or paid on account of the bridge in question, it did so voluntarily under existing laws, and those laws did not contemplate or provide for reimbursement. It is clear from the bill, as amended, that the bridge in question had become and remained a part of the state highway system prior to the adoption of Chapter 47, Laws of 1930 (Code of 1930, Chapter 122), and assuming for the sake of the argument on this proposition only that the contributions and payments were made by appellant on account of the construction of pavement on such bridge prior to the adoption of Chapter 47, Laws of 1930, it necessarily follows that Section 5004, Code of 1930, contemplates reimbursement on account of highways that had already become a part of the state highway system, and that remained a part of the state highway system continuously thereafter, and this with the result that any reimbursement to the appellant on account of the contributions or payments alleged to have been made by it would be nothing more or less than a donation or gift, and the legislature has never provided any funds for such a purpose.
Sections 4997 and 5001, Code of 1930, give further support to the point that the reimbursement prayed for is nothing more or less than a donation or gift.
As indicated in the premises, Section 170 of the Mississippi Constitution, and also the statutes adopted pursuant to the constitutional provision, including those embraced in Chapter 47, Laws of 1930 (Chapter 122, Code of 1930), show that the relief sought by appellant in this suit should not be granted, and that even if such relief should be decreed by this court its decree cannot be made effective.
Section 5004 is to be strictly construed. It does not authorize or provide for suit against the appellee. It is so out of harmony with the dominant and controlling constitutional provision and statutes on the subject of the construction and maintenance of state highways that it is unenforceable under existing laws. In consequence, the matters complained of are not of judicial cognizance, but are properly of legislative cognizance.
Insofar as an appraisal of the bridge in question is concerned, pursuant to Section 5004, Code of 1930, such an appraisal and the expense thereof would be necessary incidents to the donation or gift mentioned in the premises, and cannot be legally required or paid for under existing laws, and for the reasons already set out.
State Highway Commission v. Gulley, 167 Miss. 631, 145 So. 351; McKinnon v. Gowan Bros., 127 Miss. 545, 90 So. 243; Bow v. Plummer, 79 N.H. 23, 104 A. 35; Weston v. Dane, 53 Me. 372.
Section 5004, when enacted in 1930, was purely prospective in its nature, and from its express terms deals with matters which may arise in the future, and not with matters or so-called rights then in existence, and this statute has to be considered in this light and in connection with the other laws relative to the State Highway Department, and when so considered it is clear that it is not self-executing and requires further legislative action to be effective and to impose any duties upon appellee in the premises.
Section 5004, Code of 1930, is unconstitutional. Appellee lays aside any question of the unconstitutionality of Section 5004 as against Sections 96 and 100 of the Mississippi Constitution, but submits that insofar as appellant relies on the record in this suit upon Section 5004, this statute is unconstitutional as against Section 170 of the Constitution, as amended by Chapter 143, Laws of 1924.
The allegations of the petition are not sufficient to show that the Highway Commission, a public body charged with many duties involving the expenditure of funds, has sufficient funds to perform all of the duties imposed upon it by law.
Where an administrative board is confronted with the duty of performing several acts involving expenditures, and there are no funds available sufficient to permit the performance of all, some duty must be left unperformed, and ordinarily the courts will not by mandamus direct the board which one it shall perform and which leave unperformed.
Farrish v. State ex rel. Murphy (Neb.), 65 N.W. 890.
This suit is contrary to public policy and should be dismissed.
City of Jackson v. State ex rel., 156 Miss. 306, 126 So. 2; City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363; Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332; State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795; Wood, Secretary of State v. State ex rel. Gillespie District Attorney, 169 Miss. 790, 142 So. 747; 15 C.J. 816, Sec. 118; 32 C.J. 75, Sec. 61; 50 C.J. 858; 59 C.J. 1103, 1121.
These cases involve the same subject matter and they will be considered and decided together. In both cases, Hancock County seeks, by mandamus, to compel the Mississippi State Highway Commission to appraise, and reimburse that county its proportionate value of, a bridge constructed by Hancock and Harrison Counties across the Bay of St. Louis, under authority of Chapter 512, Local Laws of Mississippi 1924, which bridge connects the two counties and had been taken over by the Highway Commission, and had become a part of United States Highway 90, which highway begins at the Louisiana line and extends eastwardly across this state to the Alabama line.
The right of reimbursement is claimed by virtue of Chapter 122, Code of 1930, as amended by Chapter 190, General Laws of Mississippi, 1936, and especially Section 5004 of said Code. In both proceedings the State Highway Commission and its three commissioners were made defendants. The main difference in the two cases is that in the first, No. 35,289, the proceeding was instituted in Hancock County on the relation of R.C. Cowan, district attorney for the second judicial district of Mississippi, in which Hancock is located, and, by the court, transferred to Hinds County, and the second, No. 35,286, was later instituted in Hinds County on relation of Hugh B. Gillespie, district attorney for the seventh judicial district, in which judicial district Hinds County is, but Hancock County is not, located.
This was the course of the proceedings in the first case: Defendants (called Commission hereinafter), filed two motions — one to dismiss for lack of jurisdiction of the Hancock County circuit court to try the issues, and the other objecting to the venue there and asking for a transfer of the case to Hinds County, under Chapter 233, Laws of 1940. The trial judge overruled the first but sustained the second motion.
Appellant (hereinafter called Hancock County) moved the Hinds County court to retransfer the case to Hancock County, which motion was denied.
Hancock County and Hugh B. Gillespie then asked that Gillespie be permitted to be joined as a party plaintiff in the case. The motion was overruled.
The Commission then moved for dismissal of the case for lack of authority in Cowan to maintain the action in Hinds County. It also demurred on numerous grounds. The court, in one general order, sustained the motion and the demurrer, and granted an appeal therefrom to this court.
In the second proceeding, No. 35,286, Commission moved to dismiss the case on the ground that the action could only be brought on the relation of the Attorney General of Mississippi, but, if mistaken in this, that Gillespie had no authority, or right, to bring the suit for a county located outside of his judicial district, and that, therefore, the circuit court of Hinds County had no jurisdiction to try the case. The court sustained that motion and granted an appeal to this court from that order.
The questions presented by these appeals fall into two general classes — those of venue and procedure and those arising under the general demurrer. Under the first class, it is the position of the Commission that the venue of this action lies only in Hinds County; that Gillespie has no authority to bring an action for the use of a county which is located outside of his district; that Cowan has no such authority to maintain an action outside of the territorial limits of his district, although the county so represented is within such territorial limits, and that, in any and all circumstances, only the Attorney General of Mississippi possesses the right and authority to institute and maintain this kind of action on behalf of any county in the state.
Hancock County takes issue on each and all of these contentions, and, in addition, says this action can be maintained in Hancock, as well as in Hinds, County. Details of the grounds of the demurrer will be set out later.
We will first decide the question of venue. Section 2349, Code of 1930, provides that the petition for mandamus against a corporation shall be filed in the circuit court in which the corporate defendant shall reside or be found.
Section 5006(c), Code 1930, creates the Commission into a domestic body corporate, "and as such may sue and be sued." Other sections of Chapter 122, said Code, locate the permanent office of the Commission in the City of Jackson, Hinds County, where the seal of the corporation and all of its minutes, books, papers, documents and records shall be kept, subject to the inspection of the general public, in the custody of the secretary of the Commission, who has his permanent office in said city, and in which city the Commission must hold its regular meetings on the second Tuesday of each month.
Section 495, Code of 1930, amended by Chapter 248, Laws 1940, as to public officers, requires civil actions against domestic corporations to be brought in the county in which the corporation is domiciled, or the cause of action may occur or accrue, except where otherwise provided in special cases, such as trespass upon land, this case not being within the named exceptions.
Mandamus is a purely personal action. The entire object of the proceeding herein is to require personal action by the Commission. The fact that the property to be appraised is located in Hancock County does not give the action a local situs in that county. Considering all of the foregoing statutes together, and the nature and functions of the Highway Commission, it is our opinion that the venue of this action is in Hinds County. This conclusion is reinforced by the fact, as set out in the petition, that Hancock County, before instituting either of these proceedings, made written demand upon the Commission at Jackson that it appraise and pay for this bridge, which demand was refused officially by a minute on the records of the Commission made and entered at Jackson. It might be added that in these cases the Commission cannot complain on this point, the transfer of the case from Hancock to Hinds County being made upon its motion, unless the Hinds County court is entirely without jurisdiction. 67 C.J. 224, Sec. 369.
In the second case, the proceeding was initiated on the relation of a district attorney for a county located outside of the territory of his district. Did he have that authority? We do not think so. The territory of such districts is defined by the statutes. They are entirely separate. A district attorney is elected in each by the electors in that district. While this action is technically in the name of the state, it is in reality for the use and benefit of Hancock County. Whatever may be realized will be paid to that county. It is the real plaintiff. Section 4363, Code of 1930, authorizes the district attorney to appear in all civil cases "in which . . . any county within his district may be interested; but if two or more counties are adversely interested, the district attorney shall not represent either." No county within Gillespie's district could have any interest in this litigation, except, perhaps, a remote adverse financial interest to that of petitioner. We hold that a district attorney has no authority to initiate an action for the sole use and benefit of a county located outside of his district. Section 2348, Code of 1930, throws no light on this question, and Capitol Stages, Inc., v. State, ex rel. Hewitt, District Attorney, 157 Miss. 576, 128 So. 759, cited by Commission, does not condemn, but supports, this conclusion.
It is next contended that Cowan has no authority to maintain the action in Hinds County. We can see no reason for prohibiting his doing so. It is not perceived why one having authority to sue has not the right to resort to the venue where the suit must be brought. He instituted this action in Hancock County, within his district, and it was transferred to Hinds County over his protest on motion of the Commission. The question of the right, duty and power of a district attorney to follow litigation out of his district, where instituted therein, has usually arisen in criminal cases, and has involved the right to compensation for services and the construction of statutes in each case. 18 C.J. 1311, Sec. 36; 27 C.J.S., District and Prosecuting Attorneys, Sec. 12. There appears to be no Mississippi case deciding this question. The State of Oregon had a statute making it the duty of the district attorney to prosecute or defend "all actions, suits or proceeding in any county in his district to which the state or such county may be a party." Section 945, Oregon Civil Code. Under that statute, it was the duty of the district attorney to defend an action of ejectment against a county within his district although the venue of the action was outside of his district. Moreland v. Marion County, 17 Fed. Cas. 741, Case No. 9,794. Cowan has the authority to maintain in Hinds County the present action, No. 35,289, for the benefit of Hancock County. This renders it unnecessary for us to decide whether the lower court erred in denying the motion of Gillespie to be joined as plaintiff in that case.
It is next contended by the Commission that neither district attorney has the power to appear in either action; that this power rests only in the Attorney General of Mississippi. The reasoning of the Commission leads to this: The action must be brought in Hinds County; Cowan cannot bring it there because the situs of the action is outside his district; Gillespie cannot bring it there, or elsewhere, because Hancock County is outside of his district, and neither district attorney can bring it anywhere because only the Attorney General has that power. The Attorney General is here representing the Commission. Therefore, if these contentions are upheld, Hancock County is without a remedy to enforce whatever rights it may have, for this court has already held in Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808, a petition for mandamus pertaining to the same subject matter as the present proceedings, that Hancock County had no authority to maintain the action in its own name and right; that this must be done either on the relation of the Attorney General or a district attorney.
Section 2348, Code of 1930, authorizes the filing in a circuit court of a petition for mandamus on relation of a district attorney. Section 4363, said Code, makes it the duty of the district attorney to prosecute all criminal and civil actions where ". . . any county within his district may be interested," unless there is a conflict of interest between the counties within his district.
Section 3665, said Code, makes it the duty of the Attorney General to prosecute and defend for the counties "all causes to which any county may be a party, unless the interest of the county be adverse to the state or some officer thereof acting in his official capacity, or to some other county." The Commission makes the unique argument that only the Attorney General can bring this action for the county because the entire state will be affected if the county recovers, but that, in such case, it is the duty of the Attorney General to represent the entire state.
The Commission cites as authority for its contention Capitol Stages, Inc., v. State, supra. That was a case brought in the name of the state on relation of Hewitt. District Attorney, to prevent, by injunction, the use by the Greyhound Lines of a state highway through three counties in the district of Hewitt. The court held that district attorneys "have no authority to represent the state in any litigation in their districts where the subject-matter of such litigation is of state-wide interest, as distinguished from local interest, except as provided by . . ." said Section 4363, and that "As to all litigation, the subject-matter of which is of state-wide interest, the Attorney General alone has the right to represent the state" [ 157 Miss. 576, 128 So. 764] That case is readily distinguishable from this. The right of Hancock County to reimbursement is purely local to that county; the fact, if it be a fact, within the purview of the contention, that the payment by the Highway Commission of the money to that county for that purpose makes the question state-wide, is reason for the Attorney General to defend on the part of the Commission, but is certainly no reason why he should prosecute on behalf of the county.
Again, by Section 3663, Code of 1930, it is made the duty of the Attorney General to advise, and give opinions in writing to, the Highway Commission when by it so requested, and since the Commission, by official action, has, as shown above, refused the request of Hancock County to appraise and pay for the bridge in question, and the Attorney General represented the Commission in the former litigation between that county and the Commission, presumably the Commission has been and is acting on the advice of the Attorney General, and it cannot be said, with reason, that it is also the duty and the power alone of the Attorney General to represent the county in this litigation.
The court foreshadowed this question in Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284, 287, supra, when it said ". . . the circuit court is vested with full power under section 2348 of the Code, supra, to grant relief by mandamus on petition of the state, by its attorney general, or a district attorney. . ."
The right to bring this action, under the facts and circumstances here existing, is not in the Attorney General exclusively; Cowan, the district attorney in the second judicial district, also has such right.
Turning now to the demurrer, while it sets out some thirty grounds, many of them overlap and pertain to the same point, making it necessary that we discuss in detail only five of them.
The Commission says it is within its discretion whether it will appraise and pay for the pavement on the bridge in question, and invokes the well-known rule that in such cases mandamus will not lie to make it do so. Hancock County says this duty is mandatory, but if discretionary, the refusal of the Commission so to do is such a manifest abuse of discretion as that a court can, and should, require that it do so. The petition sets out, and, of course, the demurrer admits, that Hancock County, in conjunction with Harrison County, acting by authority of Chapter 512, Local Laws of Mississippi 1924, did construct, under supervision of the Highway Department of Mississippi and as a part of United States Highway 90, and at large expense, the bridge in question, paying therefor partly by cash on hand and partly by proceeds of the sale of bonds of the county issued for such purpose by virtue of said local act, such construction having been completed before 1930, the acceptance of and payment for the bridge by the county being upon the recommendation of the engineers of the State Highway Department. The petition, as amended, exhibited copies of all the minutes and proceedings of the supervisors concerning the construction of and payment for the bridge and the issuance of bonds therefor.
The petition then refers to the enactment by the Legislature of Mississippi of Chapter 47, Laws of 1930 (brought forward into the Code of 1930 as Chapter 122), creating the State Highway Commission, as a corporate body, to be in the control and charge of three Commissioners, to be elected from three districts in the state, and which Commission is vested with extensive powers and charged with many and important duties in the construction of a vast highway system of public roads throughout the state; that by Section 4996, said Code (amended by Chapter 396, Laws 1934) and Chapter 190, Laws 1936, said Commission is charged with the duty of acquiring and taking over from the counties, constructing and maintaining certain specified highways, among which is U.S. Highway No. 90, above herein described, and that the Commission has complied with the statutory command as to said Highway 90; that by Section 5004, said Code, it is provided:
"Whenever in the due course of the construction program of the state highway commission the time shall be reached when any paved highway or section thereof heretofore built in whole or in part at local expense would have been regularly constructed as a part of such program, and connection is made with such paved highway and same becomes a part of a continuous paved state highway; the state highway commission shall cause to be appraised the pavement on said highway, or the portion or portions thereof that is to be utilized as a part of the final location of the continuous completed paved state highway so connected. Such appraisal shall take into consideration the original cost of such pavement and the wear, depreciation and deterioration of same, and the state highway commission shall pay to the local unit at whose expense the road was constructed the proportionate part contributed or paid by said local unit represented in the then existing appraised value. Such payment may be made under such terms as may be agreed upon with the governing body of such local unit, but in no case shall reimbursement be made in less than ten nor more than twenty approximately equal annual payments;" that the conditions described by said section have come about; that said bridge is paved and it has been taken over by said Commission and has become an integral and continuous part of said Highway 90, and the expense of constructing the bridge would have been regularly a part of the construction of said highway; that written demand has been made by Hancock County upon the Commission for payment, which demand the Commission has denied.
In the Madison County case, supra, this court said: "If the statute invoked by the appellant is effectual to require the appellee to cause the appraisement to be made, then the circuit court is vested with full power under section 2348 of the Code, supra, to grant relief by mandamus on petition of the state, by its attorney general, or a district attorney, at least to the point of compelling the appellee to cause the links or sections of the highway referred to in the bill of complaint to be appraised, and may also punish as for contempt any refusal to obey its mandate under section 2353 of the said Code of 1930."
It will be noted that the wording of Section 5004 is that, when the described conditions come about, "the state highway commission shall cause to be appraised the pavement on said highway," and, "shall pay" therefor. The word shall, directed as it is by the legislature to the creature of its own creation, the Highway Commission, is not doubtful; the command is positive and clear; it leaves no discretion in the Commission.
It is also urged, as an intendment fairly deducible from the various statutes, that the legislature intended to take over the county roads and bridges without paying anything therefor. The title to Section 5004 is "Reimbursement for pavement already constructed." The section prescribes in detail the manner and the limits how and within which the reimbursements are to be made, including the method of handling outstanding bonds of the counties, rate of interest, etc. The statute would be without object and meaning if the asserted contention should prevail.
It is next said the petition cannot be granted because it fails to allege that the Commission has the money on hand with which to comply therewith. The wording of the petition is "That the said State Highway Commission has funds available and has the right to appropriate such funds for the purpose herein set out; or is vested with authority and by virtue of the General Laws of the State of Mississippi, are required to issue bonds for said purposes." This statement, of course, is not denied by the demurrer. The allegation of fact is perhaps sufficient to meet the contention, but, if not, the above quotation from the Madison County case requires at least an appraisal by the Commission.
The action which the court should, or the legislature may, adopt to pay the amount ascertained by the appraisal, can best be determined upon a development of the then existing availability of funds for such purpose. But in connection with the point here made see Board of Supervisors of Monroe County v. State, 63 Miss. 135.
It is further said that Section 5004 is unconstitutional because (1) it provides for a gift or a donation of public funds, and (2) that Section 170 of the Constitution of Mississippi authorizes the legislature to enact statutes only for the "construction and maintenance" of state highways, and that the expenditures provided for by said section are not for those purposes.
The section of the Constitution violated by the gift or donation theory is not pointed out. However, it is sufficient to say that such expenditure is not a gift or donation; the state will receive value therefor. But for the existence of the pavement, the state would have to construct it. It would seem the state receives more than value for the pavement; it receives and uses the road bed, the road, and the entire structure, whereas it appears from the section (although the point is not raised in this case) that it is only required to pay for the pavement thereon — not the original cost, but in the condition it is in at the time it is appraised.
On these second constitutional objection, this court, in Trahan v. Highway Department, 169 Miss. 732, 151 So. 178, 179, held the highway act constitutional. If the effect of that decision is not to pass specifically upon the constitutionality of Section 5004, we now say that we think the contention is not sustainable because in our opinion the words "construction and maintenance" in Section 170 of the Constitution should be given a broad rather than a narrow construction, and that they include the right to pay for a necessary link of roadway already constructed and in existence. This bridge connects Harrison and Hancock Counties over the Bay of St. Louis and is a connecting and continuous part of Highway 90.
But for its existence, the Commission would have had to construct it in carrying out the mandate of the legislature to take over, construct and maintain Highway 90 as a primary road across the state.
Case No. 35,286 is affirmed; Case No. 35,289 is reversed and remanded.