In Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284 (1940), the court refused to issue a mandatory injunction to compel the commission to cause to be appraised the pavement on certain parts of two highways and to pay the county therefor as provided by statute.Summary of this case from Mississippi St. Hwy. Comm. v. Spencer
October 28, 1940. As Modified on Denial of Suggestion of Error December 23, 1940.
A bill by county seeking mandatory injunction to compel State Highway Commission to appraise pavement on certain sections of two highways and to pay county therefor, as provided by statute requiring such appraisal and payment whenever highway construction program reaches the point where any paved highway or section thereof built prior to enactment of statute at local expense would have been regularly constructed as part of such program, was insufficient in absence of allegation that the sections of highway were already built at time of enactment of such statute (Code 1930, secs. 5003, 5004).
The chancery court was without jurisdiction to grant mandatory injunction to county to compel State Highway Commission to appraise pavement on certain sections of two highways which had been built at local expense, and to pay county therefor pursuant to statute, since county had adequate remedy by mandamus (Code 1930, secs. 2348, 5003, 5004).
Equity did not have jurisdiction to grant mandatory injunction to county against State Highway Commission, on ground that adequate remedy by mandamus was unavailable because attorney general was required by law to represent State Highway Commission in suits brought against it and hence could not represent county in mandamus proceeding, in absence of allegation that request was ever made that attorney general or any district attorney permit use of his name in mandamus proceeding or that such request would have been of no avail (Code 1930, sec. 2348).
Under statute providing that whenever highway construction program reaches point where any paved highway or section built before enactment of the statute at local expense would have been regularly constructed as part of such program, State Highway Commission shall cause pavement on such highway to be appraised and pay to local unit the proportionate part contributed by local unit represented in then existing appraised value, court could go no further by mandatory injunction than to compel appraisement to be made, and hence county was not entitled to mandatory injunction against Highway Commission on ground that remedy by mandamus was inadequate in comparison with injunction (Code 1930, secs. 5003, 5004).
5. INJUNCTION. Mandamus.
"Mandamus" is strictly a legal remedy and is a remedy to compel action, while "injunction" is solely equitable and is a remedy to prevent action.
6. INJUNCTION. Mandamus.
Where the established distinctions between common-law and equity jurisdiction are observed, "injunction" and "mandamus" are not correlative remedies.
The test of jurisdiction of a court of equity to issue an injunction is absence of legal or other remedy by which the complaining party might obtain the full relief which the facts may warrant.
APPEAL from chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Jones Ray, of Jackson, and Ray, Spivey Cain, of Canton, for appellant.
Appellee will doubtless contend that the remedy of appellant is at law. We challenge appellee to demonstrate the contention. Only two remedies were possibly available to appellant — mandamus and mandatory injunction. At the time this bill was filed, this court had not decided the right of the county to sue out a writ of mandamus in its own name, and for its own right, but that question was determined against the counties in the case of Hancock County v. Miss. State Highway Commission, 188 Miss. 158, 193 So. 808. It is perfectly clear, therefore, that appellant does not have any pure law remedy in the circuit court to compel appellee to make the appraisal and the payments provided for by Sections 5001, 5003 and 5004, Code of 1930. It is true that it might be able to coax the district attorney to bring a mandamus suit, but it has no right to compel the district attorney to do so, and even if the attorney-general were available to the county, the same situation is true, with reference to his action, and it is to be observed that as between the appellee and the county, it is the positive duty of the attorney-general to represent appellee, and that being true, he could not bring a mandamus suit for the benefit of appellant.
We earnestly submit, however, that even if the right to bring a mandamus in its own name fully existed, it would not be an adequate remedy. The circuit judge can issue the writ of mandamus and compel technical performance thereunder, to-wit: the appraisal of the value of the road, but when that appraisal is filed with either the county or with the court, the jurisdiction of the court ends. The circuit court would have no power in a mandamus suit to review the appraisal upon exceptions thereto and would have no power to determine the question of from what date interest runs, and other questions which affect the amount due appellant, and the method and time of payment thereof.
There is yet another reason why mandamus would not be a full, adequate and complete remedy, even if it were available to appellant. It is well-settled law that a mandamus may not issue if there be any question as to whether the time has come when the person against whom it is sought can be compelled to act. It is otherwise with a mandatory injunction. If irreparable injury is being done by delay, so as to stall off the date of action, as has been the attitude of the appellee, then an injunction will issue to compel action.
In the final analysis, there is but small difference between a mandamus and a mandatory injunction. They both compel action, but the mandatory injunction is the more effective because the chancellor may proceed to adjudicate all rights under our system of equity and enforce them with orders from time to time. The power of revision, which inheres in the chancery court is an invaluable right to the appellant and others similarly situated; and the circuit court in a mandamus proceeding does not have that power, nor can it enter a final judgment for the amount found due in the mandamus suit. Its judgment in such a case as this would be limited to compelling appellee to make and file the appraisal, and there its power and jurisdiction would end.
The statutes are mandatory upon appellee, and it is vested with no discretion whatsoever in the performance of that duty. It has no right to delay the performance. It has no right to ignore the duty. And it has no right to misperform the acts required of it.
Carrollton v. Town of North Carrollton, 69 So. 179, 109 Miss. 494; Rock Island v. U.S., 18 L.Ed. 419; Sections 5001, 5003, and 5004, Code of 1930.
Where the language of the statute is plain, the courts will not read into it any other meaning than that expressed.
Yerger v. State, 45 So. 849, 91 Miss. 802; City of Hazlehurst v. Mayes, 51 So. 890, 96 Miss. 656; Hammer v. Yazoo Delta Lbr. Co., 56 So. 466, 100 Miss. 349; Eagle Lbr. Co. v. Robertson, 135 So. 499, 161 Miss. 17.
The bill well charges the facts that the liability of appellee was in existence prior to the effective date of the Code of 1930; charges specific expenditures for the road, as distinguished from the cost of the right of way; and charges that all of the acts of appellant were induced by the special instance, request and procurement of appellee; and well charges that the highways, at the time of the doing of the work, were then and there under the full control of the appellee.
The appellant in the above cause respectfully submits this suggestion of error, not as to the affirmance of the lower court, but on the following propositions, to-wit:
1. The dubious condition in which the opinion leaves Sections 5003 and 5004 of the Code of 1930. Sections 5003 and 5004 provide (a) that the counties shall be reimbursed; (b) that upon the happening of certain conditions, the Highway Department shall make the appraisal; (c) that the Highway Department shall make payment. There is no question that these statutes grant a valuable right to the counties and that the Legislature expected the Highway Department to meet them to the letter, and as we see it, there can be no shadow of doubt that these statutes give the county of necessity the right to collect from the appellee the money due it by appellee and to have judgment therefor.
2. The construction placed by the court on Section 5010, Code of 1930. There is not a syllable, much less a sentence, in Section 5010, which limits the Highway Department in the use of its general funds, or which keeps those funds from being subject to a decree of this court, or which would prevent a court from rendering a money judgment against appellee.
E.R. Holmes, Jr., Assistant Attorney-General, Richardson Sanford, of Philadelphia, B.H. Loving, of West Point, and H.W. Hobbs, of Jackson, for appellee.
Whether or not the original bill, as amended, states a cause of action under either Section 5003 or 5004, Code 1930, the bill, as amended, necessarily stands upon its own allegations and averments, and the appellee does not assume any facts not stated therein, and which should have been so stated, particularly the vital and fatal defect that the bill, as amended, does not allege or aver that the paved highways or sections of highways were constructed prior to April 14, 1930, the effective date of Chapter 47, Laws 1930 (Chapter 122, Code 1930).
Conceding for the purpose of argument on this proposition that appellant has a case under either Section 5003 or Section 5004, and that it has properly stated a case under either of said sections, and that such sections are constitutional and are properly enforceable by a court of law, then the inescapable conclusion is that the gravamen of appellant's complaint is that the appellee has refused to perform acts especially enjoined upon it as a duty resulting from its office, and the remedy in such a case is by a proper mandamus proceeding under Chapter 48 of the Code of 1930, in the circuit court; or to put it differently, that court, in such a proceeding, is the proper forum to test out the question as to whether or not appellee has failed in the performance of its duty with reference to the matters alleged by appellant, under our system of jurisprudence, and the amended bill in this case presents an attempt by appellant to secure a writ of mandamus in the chancery court in the form of a mandatory injunction, which proceeding is unknown to our law.
Sec. 2348, Code of 1930.
It is argued by appellant that it should not be required to proceed by mandamus because the only way that suit can be brought is through the district attorney or the attorney-general and that it has no power to compel the district attorney to act and that the attorney-general would not act, because it is his duty to represent appellee, and in this respect, we wish to observe that a county is not a favored litigant under our procedure, and that it is required to go through the same procedure with reference to litigation as any other litigant, and that this provision of the law is as binding on a county as any one else, and that we are not here confronted with a case where the district attorney and the attorney-general have refused to act, as the bill does not allege such facts, and what attitude the matter would be in, if those officers had been requested to bring an action of mandamus for the benefit of Madison County, and had refused to do so, is not now before the court.
The circuit court could by its writ of mandamus compel the appellee to perform all of its duties in the premises that the court held the law devolved upon appellee to perform, just as effectively as could be done under a mandatory injunction, and any question as to whether these duties had been performed could be reached by contempt proceedings for disobeying the writ of mandamus, just the same as for failure to obey the mandatory injunction.
Secs. 2353, 2351, 2356, and 2357, and the other Sections under Chap. 48, Code 1930.
ON SUGGESTION OF ERROR.
Upon a careful consideration of the suggestion of error in this case, we have reached the conclusion that it should be overruled. However, we have decided that it is proper to withdraw from the former opinion the expression contained therein, which counsel for the appellant, who filed the suggestion of error, have interpreted to be a construction of sections 5003, 5004, and 5010 of the Code of 1930, in such a manner as to preclude or limit the relief to which the appellant and other counties may be entitled, if and when an appropriate proceeding shall be brought to enforce any right that may be given under those statutes. What was said in the former opinion when discussing those statutes was intended only for the purpose of re-enforcing the correctness of the decision, wherein we held that a writ of mandamus, instead of a mandatory injunction, was the proper remedy to obtain any relief to which the appellant may be entitled. On this suggestion of error we again limit the decision, as was expressly stated in the former opinion, to merely holding that the allegations of the bill of complaint do not bring the case clearly within the operation of either section 5003 or 5004 of the Code, and that whatever remedy the appellant may have cannot be enforced by a mandatory injunction.
We withdraw a portion of the former opinion, so that it will now read as follows:
"This is an appeal from a final decree of the chancery court of Hinds county sustaining a demurrer and dismissing a bill of complaint in which the appellant, Madison county, sought to obtain a mandatory writ of injunction against the appellee, Mississippi State Highway Commission, to compel the said Commission to cause to be appraised the pavement on that link or section of U.S. Highway No. 49, from the town of Flora, in said county, to the Hinds county line, and also that link or section of U.S. Highway No. 51, from the city of Canton to the Hinds county line, and to pay for the same as provided for by section 5003 and 5004 of the Code of 1930. It is alleged in the bill of complaint that the original cost to the county of the right-of-way for the said link or section of U.S. Highway No. 49 was the sum of $1800, and that the cost of the construction and pavement thereof amounted to the sum of $61,346.01; and that the original cost of the right-of-way for the said link or section of highway on U.S. Highway No. 51 was the sum of $36,036.50, and that the cost of the construction and pavement thereof amounted to the sum of $104,630.76. It was not alleged in the bill that either of the said links or sections of highway was already built at the time of the passage and effective date of the statutes in question, but it is merely alleged that in the first instance the right-of-way was purchased during the year 1929, and that in the second instance the right-of-way was purchased during the year 1928, and then alleges that the said links and sections of the highway were thereafter constructed on the rights-of-way so purchased, and all at the expense of the said county. Section 5004 of the Code of 1930, which we deem to be the applicable statute in the case, provides, among other things, that: `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 . . ., 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.' We are of the opinion that the allegations of the bill of complaint are insufficient to bring the case within the purview of either of the statutes invoked.
We are also of the opinion that the decree of the court below should be sustained on the ground that the chancery court was clearly without jurisdiction to grant a mandatory writ of injunction to compel the state highway commission to perform a legal duty alleged to have been enjoined upon it by the statutes here invoked.
Section 2348 of the Code of 1930 reads as follows: `On the petition of the state, by its attorney-general or a district attorney, in any matter affecting the public interest, or on the petition of any private person who is interested, the writ of mandamus shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act, the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law.'
The appellant seeks to avoid the application of the foregoing statute as furnishing the proper remedy at law for compelling the appellee state highway commission to cause the appraisement to be made, and seeks to invoke the aid of a court of equity by mandatory injunction on the ground (1) that the attorney general is required by law to represent the state highway commission in suits brought against it, and that therefore he was not available to represent the appellant Madison County in a proceeding by mandamus against the said highway commission; and (2) that the writ of mandamus when issued would not afford full, adequate and complete relief to the appellant. It is sufficient to say in answer to the first proposition that the bill of complaint contains no allegation that a request was ever made that either the attorney general or any of the seventeen district attorneys of the state permit the use of their name to bring a mandamus proceeding on petition of the state on relation of such an officer, nor does it allege that such a request would have been of no avail. The answer to the second proposition is that in the case before us the chancery court would not be empowered to go further than to merely compel the appraisement to be made by means of a mandatory injunction, even if we should assume that it would have jurisdiction to grant such relief. Assuming for the purpose of this decision, and for that purpose alone, that the Legislature in enacting section 5004 of the Code, supra, intended to create a liability and cause of action in favor of a local unit at whose expense a link or section of paved highway had been theretofore constructed so as to enable such local unit to compel the making of such an appraisement, it is then clear that the writ of mandamus is appropriately designed to afford the necessary remedy for that purpose. The test as to whether there is a plain, adequate, and complete remedy at law is the existence of such a remedy under the law. The jurisdiction of equity does not arise merely because the party in whose favor the remedy at law exists may think, without first making inquiry, that each of the officers whose duty it might be to interfere may be unwilling to do so, and especially where the pleadings fail to contain any allegation as to such unwillingness. Of course, the appellant could not proceed by mandamus in the name of Madison county in a matter thus affecting the public interest as we held in the case of Hancock County v. State Highway Commission et al., 193 So. 808, but 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. . . . Therefore, a plain, adequate, and complete remedy by mandamus at law is afforded if a right of action has been created on behalf of the local unit to compel such appraisement.
"In 38 C.J., page 545, par. 12, it is said: `Injunctions and mandamus are not interchangeable, but present several well defined points of difference. Mandamus is strictly a legal remedy while the remedy of injunction is solely equitable and cognizable in no other forum than a court of equity. Also, mandamus is a remedy to compel action, while injunction is a remedy to prevent action, and while there are a limited number of cases in which the rule is apparently denied altogether, or greatly limited, it is very generally held that mandamus is not the proper remedy where the relator does not ask that defendant be compelled to do an act, but demands on the contrary that he be forbidden to do certain acts, and that mandamus cannot be made to perform the office of an injunction. And on the other hand, mandamus and not injunction is ordinarily the proper remedy where nothing is sought but the enforcement of a legal duty, although under some circumstances a mandatory injunction will issue to compel the performance of a duty of this character if for any reason mandamus is not available.'
"Where, as in our state, the established distinctions between common law and equity jurisdiction are observed, injunctions and mandamus are not correlative remedies. Moreover, the almost universal test of the jurisdiction of a court of equity to issue injunctions is the absence of a legal or other remedy by which the complaining party might obtain the full relief to which the facts and circumstances may warrant.
"We are therefore of the opinion that the decree of the court below sustaining the demurrer and dismissing the bill of complaint should be affirmed, but we pretermit the decision of any question pertaining to the right of the appellant to any relief by appropriate proceedings in the premises, and limit this opinion to merely holding that the allegations of the bill of complaint do not bring the case clearly within the operation of either section 5003 or 5004 of the Code of 1930, and that whatever remedy the appellant may have cannot be enforced by mandatory injunction.
Suggestion of error is hereby overruled.