Beaman v. Board of Police

42 Miss. 237

• Court: Mississippi Supreme Court
• Decided: October 15, 1868
• Status: Published

Opinion

Jeffords, J.,

delivered the opinion of the court.

This was an application for a writ of mandamus to the Circuit Court of Leake county. The petition alleges, that at a regular term of the court of police of said county, held on the first Monday and 4th day of January, 1864, the said court made and entered on the minutes thereof an order and allowance in favor of petitioner for the sum of four thousand dollars, upon which the clerk of said court issued a warrant to petitioner according to the statute in such case made and provided, signed by him officially, with the seal of said court affixed, said warrant' being, numbered 310,' and dated January 4th, 1864; by which warrant the court ordered, adjudged, and directed that the treasurer of said county pay to Levi Beaman the sum of four thousand dollars, being the amount allowed by the Board of Police, for money loaned the county of Lealce, with eight per cent interest, and -which said warrant was countersigned by the President of the Board and court, and by B. A. Harris, security, and was recorded by Joseph D. Eads, treasurer; that the warrant is wholly unpaid, both principal and interest; that the treasurer of said county declines and refuses to pay said warrant or any part thereof, and as he is informed and believes, is so ordered and directed by the Board of Police of said county; that they have wrongfully confederated, and are acting in concert to defeat and deprive petitioner of his rights, and avoid the present and ultimate payment of said warrant to petitioner; that the Board of Police have failed and refused, and still fail and refuse, to make any provision, by levy of a tax or otherwise, to pay said warrant or any part thereof, although it is their legal duty and power to make such provision, and has-been their legal duty and power ever since said warrant was issued, but positively repudiate said debt, and refuse to recognize, pay, or provide for the same in any way, although the same has been requested and demanded of them.

The petition concludes with a prayer that Charles II. Matlock, President of the Board of Police, and II. II. Howard, treasurer of the county of Leake, may be cited to appear before the Circuit Court of said county on the third Monday of February, 1867, to show cause why said warrant should not be paid, and why a peremptory mandamus should not be granted against them for the payment of the same, and to make provision speedily and amply for its payment, and have levy upon and sale of the property of said county for its payment. The' petition is sworn to in due form. The following is a copy of the warrant referred to in the petition:

“ Warrant. $4000. State of Mississippi, No. 370.

By the Board of Police.

To the Treasurer of Leake county.

“ Pay to Levi Beaman or bearer four thousand dollars and' no cents, being the amount allowed by the Board of Police on the first Monday and 4th day of January, 1864, for money loaned the county, with eight per cent interest, and for so doing this shall be your warrant. Given under my hand and seal of office, this 4th day of January, AJD. 1864.

“John B. Grigsbt, Clerk.

(Countersigned) C. C. Allen, President.

R. A. Harris, Secwrity.

“ Recorded. Jos. D. Eads, Treasurer.”

The fiat was granted on the 9th day of February, 1867, directing the issuance of process as prayed for, returnable at the February Term, 1867, of the Circuit Court for Leake county. The alternative writ of mandamus was issued on the 12th day of February. On the 23d day of'February, Chas. H. Matlock, President of the Board of Police, filed his return and answer to the alternative writ.

The answer sets up that on the first Monday and 4th day of January, 1864? the Board of Police made the following order, which was entered on the Minutes of the Board:

“ Ordered on motion, that county scrip to the amount of $4000 be issued in favor of Levi Beaman, in lieu of other money, and that said scrip bear eight per cent interest.” That respondent believes that the warrant referred to in the relator’s petition was issued on this order ; that the loan of money mentioned in said warrant was a loan of Confederate money, as respondent is informed and believes, and was made to said county (if at all) for the purpose of purchasing supplies or provisions for the families of soldiers then in the military service of the Confederate States of America. Respondent admits that said warrant is unpaid, as he is informed and believes; and that no levy of taxes upon said county has ever been made for the payment of said warrant; alleges that said warrant was illegally issued; that the money alleged to have been loaned to said county by the relator was loaned (if loaned at ‘ all) to be used in aid of the late rebellion against the United States of. America, and that the illegal purpose for which said money was to he used, when loaned, was fully known to the relator ; that said warrant was contemplated, by the parties thereto, to be paid in other currency than specie; and that relator is not equitably entitled to demand or recover in any event a larger sum than the actual value of the Confederate money which the relator may have loaned the county of Leake.

"Upon this petition and answer the Circuit Court refused the motion for a peremptory mandamus, and dismissed the petition, to reverse which this writ of error is prosecuted.

The first question presented for our consideration is, whether the action of the Board of Police, directing the issuance of the warrant referred to, is such an order, judgment, or decision of tiie Board of Police as will preclude all inquiry into the same in this mode of procedure. It has been held by this court that for certain purposes the Boards of Police are courts, and their judgments final and conclusive, unless appealed from, or a rehearing be granted according to law. 3 S. & W. 529; Yallobusha County v. Carbry, 9 S. & M.; The Board of Police of Attala County v. Grant, p. 90. In the last case cited, however, the court say: “ It is a point which may admit of some doubt, whether the Boards of Police are to be regarded as courts, or as quasi corporations. For some purposes they are certainly to be regarded as courts.”

It is clear that all of the acts of Boards of Police are not judicial in their character, and their acts will only be final and conclusive in that class of eases where they are in their nature judicial. The subject-matter of this controversy arises out of the áet of the Legislature of this State, approved December 2, 1863, entitled “An Act to better provide for the families of soldiers.”

The first section provides for the enrolment of the persons who' may be entitled to the benefits of the act. The second section appropriates five hundred thousand dollars, payable out of the treasury notes issued under the provisions of “ An Act entitled An Act authorizing the issuance of Treasury Notes on behalf of the State,” approved Jan. 29, 1862, to be distributed among the several counties of the State, in pursuance of the ■subsequent provisions of this section. Section ten authorizes the levy and collection of a special tax, not exceeding one hundred and fifty per centum upon the State tax for the fiscal year of 1863, and each succeeding year, until otherwise ordered; to be levied and collected as other taxes, to be called “ the Military Belief Fund,” to be distributed when collected among the several counties of the State, in the same manner as provided for the distribution of the five hundred thousand dollars appropriated by the second section of this act.

The twelfth section of the act provides “ that the Boards of Police of the different counties of this State are authorized, at their discretion, to levy a special tax, upon the taxable property of their respective counties, to an amount not exceeding one hundred per centum upon the State taxes of the current year, except the counties of Tallahatchie, Jackson, Hinds, Bankin, Scott, Wilkinson, Newton, Calhoun, Leake, and Kemper, wherein the Boards of Police are authorised to levy a tax not exceeding three hundred per centum on the State tax, the proceeds of which shall be applied and used in aid and for the purposes of the funds or amounts hereinbefore provided, and shall be distributed on the same basis and in the like manner; and the said Boards of Police are also authorized and empowered, should the exigency require it, respectively to borrow, for and on the credit of their several counties, any sum of money, not exceeding twenty thousand dollars in any one year, for which sum or sums so borrowed the Boards are authorized to cause to be prepared, sign, and deliver warrants or bonds of their counties, to bear interest not exceeding eight per cent per annum; and the amounts thus borrowed shall be paid out of the appropriations hereinbefore made to the different counties of the State, or out of a special tax which the counties borrowing may 'respectively levy. The said warrants or bonds shall be signed by the clerks, and countersigned by the presidents of said Boards; and the treasurer and police clerk shall each keep a separate and accurate account of the number, date, and amount thereof, and to whom payable, and shall keep like accounts of the same when paid.”

Previous to the: passage of this act, Boards of Police had no authority, and were not possessed of the power to borrow money on the faith and credit of their respective counties. There exists a broad and radical distinction as to the rights and powers of natural and artificial persons. Natural persons have and may exercise all of the rights which have not been surrendered by them, or such as have not been taken away, in strict accordance with law; whereas artificial persons and corporations have only such rights and powers as are expressly conferred on them by law.

The act just referred to is the only one of a general nature .empowering Boards of Police to borrow money, and without some such act they could not lawfully do so, in their official characters.

The relator in this case is chargeable with a full knowledge of the laws of the State, regulating the rights, powers, and duties of the Boards of Police, and in dealing with them he is bound to look to it that their transactions conform to the law; otherwise they will not be bound. If they transcend the powers granted by law, their action will be wholly void. The twelfth section of the act just cited provides that in case the exigency required it, the Boards of Police might borrow money, on-the credit of their counties, and that for the “ sum or sums so bor7 rowed the Boards are authorized to cause to be prepared, sign, and deliver county warrants or bonds of their counties, to bear interest not exceeding eight per cent per annum; and the amounts thus borrowed shall be paid out of the appropriations hereinbefore made to the different counties of this State, or out of the proceeds of a special tax which the counties borrowing may levy?

The warrant in this case was not drawn and issued in accordance with the requirements of the statute. It should have specified the object for which the money was borrowed, and upon what fund it was intended to be drawn. It 'should have stated on its face whether payable out of funds in the treasury, or to be placed there, belonging to the “ Military Belief Fund,” or out of “ the proceeds of a special tax” thereafter to be levied by the Board of Police of the county of Leake. It should have appeared from the order allowing the warrant, and from the warrant itself, that the “ exigency ” had arisen, authorizing the issuance of the warrant. By the express terms of the act just referred to, it should have been made payable out of the appropriations made by the legislature to the several counties of the State, or out of the proceeds of a special tax which the county borrowing might levy; and the lender had no right to expect or demand payment out of any other fund, or in any other mode than that designated by the statute. The petition of the relator does not state facts sufficient to bring his claim within the purview of the statute authorizing Boards of Police to borrow money. We may admit that Boards of Police are courts, and that as such their orders and judgments are final and binding in matters coming clearly within their cognizance, unless appealed from or reversed.

There are many features which distinguish this from an ordinary county warrant.

The issuance of this description of paper was authorized by a special act of the legislature, and not by the general law regulating the issuance of county warrants. It should have been made payable out of one or the other, or both of the two funds specified in the act, and not out of the funds of the county generally. This warrant had to be countersigned by the President of the Board, and separate and accurate accounts are required to be kept by the treasurer and police clerk of the number, date, and amount thereof, and to whom payable, and like accounts of the same when paid. The fact that they were to be kept separate, and accounted for separately, most clearly indicates that they were not to be treated and regarded the same as ordinary county warrants, payable out of county funds generally, but were designed to be paid from separate funds, specifically designated. This-warrant was issued upon personal security, and although payable on demand, it bears eight per cent interest; evidently showing that immediate demand and payment were not contemplated by the parties, and for these reasons materially differed from ordinary county warrants.

."We have arrived at the conclusion, that in the-present instance the Board of Police were not sitting as a court, and did not act judicially in negotiating this loan, but simply as the agents of the county for that purpose,'being specially authorized in that behalf; and that the contract in this case must stand upon the same footing as that of a bond, promissory note, bill single, or bill of exchange, or any other mere evidence of indebtedness, the consideration of the execution of which may be inquired into.

Taking the view -which we do of this subject, it does not become necessary for us to inquire into, j>ass upon, or in any manner call in question the validity of the act of the legislature referred to, nor do we intend to express any opinion as to the legality, or illegality of the transaction itself. "We prefer to pass upon such questions when they necessarily arise out of some case, and are squarely presented, and not until then.

Having determined that the action of the Board of Police was not of that character which will preclude us from going back to the original transaction itself, we will look at the case as it is presented on the petition and answer. It is certainly unnecessary for us to enter into any lengthy disquisition as to the origin, nature, and general scope of the remedy by mandamus. These are well understood, or may be readily ascertained by the intelligent practitioner.

The answer or return must be accepted as being absolutely true. This point has been expressly passed upon by this court in the case of the Board of Police of Attala County, p. 89. In that case the court says, “ By the common law, the return to a mandamus in the alternative is to be taken as true,- and the aggrieved party is left to his action for a false return. The court below seems to have regarded this answer as- it would the return to a mandamus in the alternative. By moving for the peremptory mandamus, the truth of the answer was admitted.” This is directly in point.

The motion for the peremptory mandamus in this case must be regarded as expressly admitting the truth of the facts stated in the answer. Among other things the answer alleges that the parties to the warrant in question did not contemplate the payment in specie, but in other currency.

Section third, proviso second, of the Ordinance dated Aug. 23, 1865, p. 41 of the Proceedings of the Convention, provides that “ in all other cases in which a party has executed a note or agreement in writing for the payment of money, parol testimony shall be admissible to provevwhetlier or not such contract contemplated specie currency, and to show what amount in specie the payee or obligee has a right equitably to demand and recover.”

This is the case made by the answer,, and the answer being conclusive on this point, the very moment it became apparent that it would require the production of testimony or the investigation of facts to settle the rights of the parties, the court below had no power to proceed, and its jurisdiction was at an end. The question has been clearly adjudicated by this court. In the case of the Board of Police of Attala County v. Grant, 9 S. & M. pp. 90, 91, it is said, “ The court cannot enter into an inquiry to ascertain facts, and settle unsettled matters; it is not competent for the court to decide on disputed facts. .... The court erred in entering a calculation as to the amount due. Accompanying the petition there is a sort of running account or memorandum of credits, which shows a balance' due ' Grant of $9,277, to which interest is added, making the aggregate $12,155, which is the amount decreed him by the Circuit Court. The court then undertook to _ decide from evidence what was due,' and it took the statement of Grant as conclusive of the matter. This was done in the face of the answer denying that anything was due, which is to be taken as true.”

The writ of mamdamus is most unquestionably the appropriate remedy for the purpose of compelling public officers and tribunals to perform the duties required of them by law, where no other legal remedy exists, and where the right to be enforced is certain and positive.

. If the right is uncertain or a matter of discretion, mandamus will not lie. 9 S. & M. 90; 40 Miss., Swan v. Buck, p. 290.

Sec. 6, art. 33, Kevised Code, p. 419, provides that any person who may conceive himself aggrieved by any judgment or decision of the Board of Police shall have the right of appeal ■to the next Circuit Court of the county.

By sec. Y, art. 34, “ any person having a just claim against any county in this State, which the Board of Police may refuse to allow, may bring suit in any court having jurisdiction; and in case said party shall recover, the Board of Police shall allow .the same, and a warrant shall issue as in other cases.” It seems to us the relator had not only an ample legal remedy, but a choice of remedies.

We are of opinion that the Circuit properly refused th & peremptory writ of mmdamm. The judgment of the Circuit Court is affirmed.