May 1, 1933. Suggestion of Error Overruled May 15, 1933.
1. SCHOOLS AND SCHOOL DISTRICTS.
Where money obtained in accordance with statute for construction of buildings for consolidated school district is exhausted, additional money for such purpose can be raised only as legislature so provides (Laws 1930, chapter 114).
Where statute authorized county board of supervisors in their discretion to levy tax to pay indebtedness of consolidated school district after exhaustion of funds, discretion so granted was not subject to control by mandamus (Laws 1930, chapter 114).
Discretion vested in public officers cannot be controlled in mandamus proceeding.
4. CONSTITUTIONAL LAW.
Whether moral obligations of county shall be recognized is for legislature and not for courts.
APPEAL from the circuit court of Lincoln county. HON.E.J. SIMMONS, J.
Flowers, Brown Hester, of Jackson, and H.V. Wall and R.L. Jones, both of Brookhaven, for appellant.
The Act of 1930, Chap. 114 Laws of 1930, constituted the Board of Trustees of consolidated school districts as the body to pass upon the validity and justness of claims due by consolidated school districts.
The vesting of this duty or authority with the Board of Trustees was in accordance with prior practice and laws of our state, such duties and powers having always been lodged with the trustees of school districts.
Such investigation, allowance and certificate by the Board of Trustees constituted a judgment and the Board of Supervisors is without power to refuse to pay a claim which has been so audited and allowed.
Arthur v. Adams, 49 Miss. 404; Robinson v. Ittawamba County, 70 Miss. 352, 65 So. 461; Davis v. Lamar County, 107 Miss. 827, 66 So. 210; George County v. Bufkin, 117 Miss. 844, 78 So. 781.
In the instant case the claim has been audited and allowed by the tribunal vested with this duty and power by the Legislature of the State of Mississippi and the demurrer in this case admits that the claim is just and owing and that the Board of Supervisors has wilfully refused to pay or take any steps for its payment.
On these facts the insertion by the Legislature of the words, "in their discretion," cannot authorize the Board of Supervisors to wilfully deny a just obligation.
Board of Supervisors of Rock Island County v. The United States, 18 L.Ed. 419; United States v. Cornell Steamboat Company, 50 L.Ed. 987; Bowen v. City of Minneapolis, 47 Minn. 115, 28 Am. St. Rep. 333.
The Mississippi case of Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209, is in our opinion directly in point.
Where a statute directs the doing of a thing for the sake of justice, the word "may" means the same as the word "shall." So, if a statute says that a thing may be done which is for the public benefit, it shall be construed that it must be done.
5 Words and Phrases, pp. 4421, 4422; McRaven v. McGuire, 9 S. M. 34.
The word "may" in the statute, will be construed to mean "shall" whenever the rights of the public or of third persons depend upon the exercise of the power of the performance of the duty to which it refers; and such is its meaning in all cases where the public interest and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be exercised.
People ex rel. Conway v. Supervisors, 68 N.Y. 119; People ex rel. Brokaw v. Commissioners of Highways, 6 L.R.A. 161.
We take it, it will not be seriously contended that mandamus is not the proper remedy and upon this question simply cite in addition to the authorities hereinbefore cited, which were mandamus cases, the following Mississippi cases.
Beard v. Lee County, 51 Miss. 542; Klein v. Smith County, 54 Miss. 254; Jefferson County v. Arrighi, 51 Miss. 667; Honey v. Monroe County, 63 Miss. 171; Kelly v. Wimberly, 61 Miss. 548; Taylor v. Supervisors, 70 Miss. 87, 12 So. 210.
A.A. Cohn, E.B. Sauls, Jr., and J.N. Yawn, all of Brookhaven, for appellee.
This case turns upon the construction of the statute.
Chapter 114, Laws of 1930.
The verbiage is clear, distinct and unambiguous, and "the fundamental rule for construction of statutes is that the language should be given its plain and ordinary meaning.
Citizens Tel. Co. v. Newport, 188 Ky. 629.
The Act relied upon attempted to create a liability against a consolidated school district, when the Act upon which the liability is attempted to be founded occurred prior to the passage of the Act. By this Act of the Legislature an attempt was made to breathe the breath of life into a thing that was dead, and to impose upon a consolidated school district an indebtedness or claim or obligation which was void.
The Act requires the trustees of any consolidated school district, etc., to certify certain facts relative to outstanding accounts, and authorizes the board of supervisors to levy a tax for the payment of said account.
By this wording it will be noted that it was made mandatory on the board of trustees to certify all claims to the board of supervisors. The board of trustees had no discretion in the matter, and if a claim was barred by the statute of limitation or void ad initio, fraudulent or unconstitutional it was still the duty of the trustees to certify this fact to the board of supervisors. The body of the Act provided that, "The board of supervisors of such county are authorized, in their discretion, to levy a tax against the property in said district sufficient to pay said account with lawful interest. It can thus be seen that the board of supervisors had the discretion to allow said claim and, if in their opinion the claim were barred by the statute of limitation or was void ad initio or the legislative act authorizing the same was unconstituional or for any other good reason, the board could disallow the claim.
It is our contention that the mandamus should not lie in this case, because under Section 2348 of the Code of 1930 the plaintiff had plain, adequate and speedy remedy at law. That when the board of supervisors refused to allow said claim, it was the duty of the appellant to have appealed this case to the Circuit Court of Lincoln County in accordance with section 61 of the Code of Mississippi, 1930, wherein it is provided that any person aggrieved by a judgment or decision of the board of supervisors, may embody the facts and decisions in a bill of exceptions and appeal to the circuit court, or a separate and distinct suit could be instituted.
There could be no question about mandamus being the proper remedy after the claim of appellant had been audited and allowed and a warrant issued, but in the instant case the claim was never audited or allowed by the board of supervisors.
Discretion vested in public officers cannot be controlled in mandamus proceedings.
Selig v. Price, 142 So. 504; Swan v. Gray, 44 Miss. 393; Cole v. State, 91 Miss. 628, 45 So. 11; Vicksburg M.R. Co. v. Lowry, 61 Miss. 102; Board of Supervisors v. Lee, 147 Miss. 99, 113 So. 194; Ruer v. Cowan, 146 Miss. 870, 112 So. 386; State ex rel. Cowan v. Morgan, 147 Miss. 121, 112 So. 865; Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 45 A.L.R. 824; Pearl River County v. Lacy Lumber Company, 91 So. 572.
This court has held that mandamus did not lie to compel an inferior tribunal to act in a certain way in reference to a matter which the law commits to its discretion, since the writ can only be resorted to for the purpose of compelling action by such inferior tribunal and cannot be used for the purpose of directing a particular line of action. The writ can only be resorted to to compel action by the inferior tribunal; which cannot be used for the purpose of directing a particular line of action by such tribunal.
Madison County v. Alexander, Walk. 523; Attala County v. Grant, 9 S. 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; Shotwell v. Covinton, 69 Miss. 735, 12 So. 260; Cole v. State, 91 Miss. 628, 45 So. 11; Board of Supervisors v. Lee, 147 Miss. 99.
The court has held that mandamus will not lie to compel the board of supervisors to issue bonds for the construction of roads, as provided in Chapter 149, Laws of 1910, since the issuance of such bonds is a matter in which the board of supervisors have discretion.
Robinson v. Board of Supervisors of Ittawamba County, 69 So. 3.
It is not necessary in the instant case to go into a discussion of the meaning of the word "shall" or "may," because these words were not used in the statute. In Chapter 114 of the Act of 1930, relied upon in this case, neither "shall" nor "may" is used, but the board of supervisors "are authorized, in their discretion, to levy a tax, etc."
Chapter 114 of the Laws of 1930 is couched in plain language, and expressly clothes the board of supervisors, in their discretion, to allow or disallow claims of this nature; and when this discretion is once exercised, it is beyond the province of the court to change it.
Argued orally by H.V. Wall, for the appellant, and by A.A. Cohn, for appellee.
This is an appeal from a judgment sustaining a demurrer to and dismissing a petition for a writ of mandamus. The petition was filed by the Planters' Bank, a corporation, and presented the following case: The Bogue Chitto Consolidated School District constructed a school building in accordance with the statute so providing, and, in so doing, incurred an indebtedness of one thousand, seven hundred eleven dollars and thirty-seven cents to the Bogue Chitto Lumber Company.
The money raised in accordance with the statute for the payment of this building has been exhausted, leaving this indebtedness unpaid. This fact was certified to the board of supervisors by the school trustees, and a request to the board to levy a tax for the payment thereof was denied.
The defendants to the petition are the board of supervisors of Lincoln county, in which the school is, and the prayer thereof is that the board be directed "to pay the account aforesaid, or to levy a tax upon the property of said district, or issue and sell bonds sufficient to pay said account." The Planters' Bank was taken over by the state banking department, and the case was revived in the name of the superintendent of banks.
When the money obtained in accordance with the statutes for the construction of buildings for a consolidated school district is exhausted, additional money for that purpose can be raised only, if, when, and as the Legislature provides. The statute which the petition invokes for that purpose is chapter 114, Laws of 1930, which provides: "That in any consolidated school district where buildings have been heretofore erected for the use and benefit of such dictrict, and the building funds of the district have heretofore been exhausted so that there are not sufficient funds with which to pay outstanding claims, accounts, or obligations incurred in the erection of such building, the trustees of such consolidated school district shall certify such fact to the board of supervisors of the county in which such district is located showing the amount due on such claims, accounts, or obligations, and the individual, firm, or corporation to which such amounts are justly due, and the board of supervisors of such county are authorized in their discretion to levy a tax against the property in said district sufficient to pay said accounts with lawful interest."
The appellant's contention is that this statute imposes a mandatory duty on the board of supervisors to levy a tax against the property in the district sufficient to pay this account with lawful interest. That line of cases holding that statutes providing that public officers may do certain things are sometimes construed as if the word "shall" instead of the word "may" had been used, is cited in support of this contention. These cases are of no value here, for the statute expressly places the levy of the tax wholly within the discretion of the board of supervisors, and this court has decided so many times that a citation of the cases so doing would be a work of supererogation, that a discretion vested in public officers cannot be controlled by the courts in mandamus proceedings. The Legislature could have exercised this discretion itself, but declined to do so, and simply authorized the board of supervisors to levy such a tax in their discretion, thereby placing on them the burden of determining whether such a tax should be levied for the payment of such accounts. The statute is permissive only. It may be that the Supreme Court of the United States, in a case in which it has jurisdiction so to do, would construe the statute differently, Board Supervisors Rock Island County v. United States, 4 Wall. 435, 18 L.Ed. 419, but so to do, in our opinion, would be to amend the statute by interpretation so as to give it an effect not intended by the Legislature.
Much is said in the brief of counsel for the appellant as to the moral obligation of the county to pay this debt, all of which may be true, but responding to such an obligation is for the determination of the Legislature and not for the courts. If the statute were doubtful, it may be that the doubt should be solved so as to make it accord with the moral law, but such is not the case here.