Opinion
No. 41628.
October 24, 1960.
1. Vicksburg Bridge — Bridge Revenue Bond Act — statutes — board of supervisors and bridge commissioners without authority to divert portion of toll receipts and other bridge revenue to use of county for general county purposes.
Headnote as approved by McGehee, C.J.
ON MOTION TO CORRECT JUDGMENTDecember 12, 1960 125 So.2d 91
2. Appeal — mandamus — judgment — certain provisions in judgment not within purview of mandamus suit corrected on motion.
In mandamus suit to compel transfer of funds from "adequate return fund" to "replacement and improvement fund", direction in judgment that all funds received from the operation of the Vicksburg Bridge should be expended in strict accordance with designated statutes as interpreted by the Supreme Court was too broad and was not within the purview of such a suit and would be eliminated. Chap. 283, Laws 1938; Chap. 422, Laws 1948.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Warren County; BEN GUIDER, Judge.
Joe T. Patterson, Attorney General, Butler, Snow, O'Mara, Stevens Cannada, Jackson; Dent, Ward, Martin Terry, Vicksburg, for appellant.
I. The lower court failed to follow the law of the case as announced by this Court in its opinion on the former appeal. The nature of the issue presented for decision on the former appeal and the opinion of this Court thereon was such that the trial court should have stricken the defendants' answer and issued the writ of mandamus. A review of the evidence produced by appellees shows that the court below had no basis for its denial of the writ of mandamus. The purported exercise of discretion by the trial court was legislative, not judicial, in character and was in violation of the fundamental rule governing the issuance of writs of mandamus.
Collation of authorities: Board of Suprs. of Grenada County v. State ex rel Knox, Atty. Gen., 144 Miss. 704, 111 So. 143; Board of Suprs. of Prentiss County v. Mississippi State Highway Comm., 207 Miss. 838, 42 So.2d 802; Capitol Electric Power Assn. v. Hinson, 230 Miss. 311, 92 So.2d 867; Copeland v. Robertson, 236 Miss. 95, 112 So.2d 236; Hotel Casey Co. v. Ross (Pa.), 23 A.2d 737; Milne v. Hess (Oregon), 18 P.2d 229, 889 A.L.R. 711; Pressman v. Elgin (Md.), 50 A.2d 560, 169 A.L.R. 646; Reily v. Crymes, 176 Miss. 133, 168 So. 267; State ex rel of Nasaua v. Holt (Mo.), 156 S.W.2d 708; State Highway Comm. v. Coahoma County, 203 Miss. 629, 37 So.2d 287; State of Mississippi ex rel Joe T. Patterson, Atty. Gen. v. Board of Suprs. of Warren County, 233 Miss. 240, 102 So.2d 198; State of Missouri ex rel Continental Oil Co. v. Waddill (Mo.), 318 S.W.2d 281; State of Ohio ex rel Donsante v. Pethtel (Ohio), 106 N.E.2d 626; Wood, Sec. of State v. State ex rel Gillespie, Dist. Atty., 169 Miss. 790, 142 So. 747; 34 Am. Jur., Mandamus, Sec. 41.
Teller, Biedenharn Rogers, Vicksburg, for appellees.
I. Motion of appellant to strike appellees' amended answer was properly overruled. Adams v. Board of Suprs. of Union County, 177 Miss. 403, 170 So. 684; Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; Anderson v. Leland, 48 Miss. 253; Board of Suprs. of Grenada County v. State, 144 Miss. 704, 111 So. 143; Brewer v. Browning, 115 Miss. 358, 76 So. 267, 519, L.R.A. 1918F 1185; California Co. v. State Oil Gas Board, 200 Miss. 824, 28 So.2d 120; Estes v. Memphis C.R. Co., 152 Miss. 814, 119 So. 199; George Co. v. Louisville N.R.C., 88 Miss. 306, 40 So. 486; Hassie Hunt Trust Co. v. Proctor, 215 Miss. 84, 60 So.2d 551; Hutson v. King, 119 Miss. 347, 80 So. 779; Jacobs v. Bodie, 208 Miss. 779, 45 So.2d 587; Mississippi Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Southern Farm Bureau Casualty Ins. Co. v. Logan, 238 Miss. 580, 119 So.2d 268; State v. Board of Suprs. of Prentiss County, 234 Miss. 26, 105 So.2d 154; State v. Board of Suprs. of Warren County, 233 Miss. 240, 102 So.2d 198; State Highway Comm. v. Coahoma County, 203 Miss. 629, 37 So.2d 287; Williams v. Butts, 124 Miss. 661, 87 So. 145; Secs. 1475-5, 8460, Code 1942; Chap. 74, Laws 1953 (Ex. Sess.); Public Act 170, 60th Congress.
II. Upon the merits of the controversy (based upon the record now before this Court) the granting of the writ of mandamus as sought is not legally warranted; and, were such writ granted, it would not only be nugatory and harmful but even ineffectual to accomplish petitioner's stated purpose. Anderson v. Robins, 161 Miss. 604, 137 So. 476; Board of Suprs. of Winston County v. Adams, 164 Miss. 162, 144 So. 476; Edmondson v. Board of Suprs. of Calhoun County, 185 Miss. 645, 187 So. 538; Haskins v. Board of Suprs., 51 Miss. 406; Madison County v. Mississippi Highway Comm., 191 Miss. 192, 198 So. 284; Re Validation of Bonds, etc., 195 Miss. 864, 188 So. 318; Wood v. State, 169 Miss. 790, 142 So. 747; Secs. 1109, 8469.5, Code 1942; 34 Am. Jur., Secs. 37, 63, 74, 79 pp. 831, 853, 864, 868; 38 C.J., Sec. 12 p. 545; Vol. XXIV, No. 1 Mississippi Law Journal, "Mandamus" by Darden p. 95.
III. There is no plain or clear right to the relief sought such as to justify the issuance of any writ of mandamus at bar. Wood v. State, supra; 34 Am. Jur., Secs. 36, 55, 63 pp. 831, 847, 853; Vol. XXIV, No. 1 Mississippi Law Journal, "Mandamus" by Darden p. 95.
IV. Mandamus is discretionary writ which should never issue when it will adversely affect the public interest; and the trial court's declination to issue the writ was fully justified and should be upheld. Board of Suprs. of Prentiss County v. Mississippi State Highway Comm., 207 Miss. 839, 42 So.2d 802; Overstreet v. Lloyd, 160 Miss. 444, 134 So. 169; Wood v. State, supra; Secs. 8435, 8440, Code 1942; Chap. 44, Laws 1935; Chap. 74, Laws 1953 (Ex. Sess.).
V. As the proprietor of this bridge Warren County, for proper public purposes, has the right to utilize excess bridge earnings, when so permitted by its bondholders, which right, being implied by law, needs no direct statutory authorization. Duval County, Fla. Cases, 76 Fla. 180, 105 Fla. 174, 114 Fla. 205, 79 So. 692, 141 So. 173, 154 So. 172; Hancock County v. State Highway Comm., 188 Miss. 158, 193 So. 808; Miami Beach Air Line Service, Inc. v. Crandon (Fla.), 32 So.2d 153; People v. Streeper (Ill.), 145 N.E.2d 625; St. Louis (City of) v. Cavanaugh (Mo.), 207 S.W.2d 449; Sec. 8460, Code 1942; 11 C.J.S., Sec. 52(a) p. 1080.
VI. Since Section 8460, Code of 1942, authorizes county as bridge owner to always exact charges against certain classes of users in the "public interest", facts developed proving that receipts from such sources exceed "adequate return" operate as defense to instant action. Sec. 8460, Code 1942.
VII. If affirmance does not result on grounds herein above assigned, then Court may and should review and change decision rendered on former appeal whereby to avoid judicial legislation. Board of Suprs. of Calhoun County v. State, 206 Miss. 443, 40 So.2d 273; Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781; Laurel Daily Leader v. James, 224 Miss. 654, 80 So.2d 770; Parker v. Board of Suprs. of Grenada County, 125 Miss. 617, 88 So. 172; Tonsmiere v. Board of Suprs., Harrison County (Miss.), 1 So.2d 511; Sec. 8460, Code 1942; Chap. 74, Laws 1953 (Ex. Sess.); Annos. 1 A.L.R. 1267, 67 A.L.R. 1390; Permanent A.L.R. Digest, Appeal and Error, Sec. 1005; 3 Am. Jur., Sec. 990 p. 546; 50 Am. Jur., Sec. 335 p. 327.
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.
(Hn 1) A majority of the Court are of the opinion that everything now involved in the case was decided on the former appeal and have decided to adhere to the above mentioned opinion in 233 Miss. 240, 102 So.2d 198. For that reason the judgment of the lower court will have to be reversed and a judgment entered here in favor of the appellant.
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. McGehee, C.J., took no part.
Reversed and judgment here for appellant.
All Justices concur except Hall and Holmes, JJ., who dissent, and McGehee, C.J., took no part.
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 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 as said statutes have been interpreted by this Court is entirely too broad and does not definitely direct or order anything in particular. In 34 Am. Jur., "Mandamus", Sec. 68, it is said: "While, in matters involving official discretion, mandamus may be resorted to for the purpose of compelling the exercise thereof, the use of the writ will not ordinarily be extended beyond that, so as to interfere with the manner in which the discretion shall be exercised or to influence or coerce a particular determination. As generally stated, writs of mandamus will not issue to control the exercise of official discretion or judgment or to alter or review action taken in the proper exercise of such discretion or judgment, for the writ cannot be used as a writ of error or other mode of direct review. With respect to duties that are not peremptory, the officer must be left free to decide whether he will perform the act demanded or secure by appropriate procedure a judicial determination of the extent of his duty. In such cases, where, as to the facts, there exists any admissible doubt or reasonable men might conscientiously differ with respect thereto, the courts have with practical unanimity declined to interfere by mandamus, and whenever an element of discretion enters into the duty to be performed, the functions of mandatory authority are shorn of their customary potency and become powerless to dictate terms to that discretion."
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 series of continuous acts to be performed under varying conditions. It is plain that where the court is asked to require the defendant to adopt a course of official action, although it is a course required by statute and imposed upon the official by law, it would be necessary for the court to supervise, generally, his official conduct, and to determine in numerous instances whether he has, to the extent of his power, carried out the mandate of the court. It would in effect render the court a supervising and managerial body as to the operation and conduct of the activity to which the writ pertains, and so keep the case open for an indefinite time to superintend the continuous performance of the duties by the respondent."
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."
(Hn 2) 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.
All Justices concur except McGehee, C.J., who took no part.