Opinion
April 25, 1949.
1. Constitutional law — statutes validating bonds.
The power of the legislature to cure by validation is measured by its power to enact the amendatory provisions as an original act; hence the legislative act of 1948, S.B. 688, validating bonds of supervisors districts 2 and 3 theretofore ordered issued by the board of supervisors for acquiring and operating a community hospital in the county is effective and competent to this end.
2. Statutes — community hospitals — effect of an election.
While it is true that the statute authorizing the issuance of bonds for community hospital makes it discretionary with the board of supervisors whether the board shall declare its intention to issue such bonds, yet when upon petition for an election on that issue an election has been held and carried, the result constitutes a mandate to the board to proceed to issue the bonds.
3. Mandamus — discretion as to subsequent details.
The fact that the board of supervisors will have discretionary authority as to administrative details of the issuance of bonds for community hospital presents no obstacle to the proceedings for the issuance.
4. Mandamus — remedy by appeal, when not available.
When it has become the mandatory duty of a board of supervisors as the result of an election to issue bonds for community hospital purposes, and when an order by the board has undertaken to rescind its previous orders under which the election was held, an appeal from the rescinding order would be ineffective and is not required, but instead mandamus will be allowed.
Headnotes as approved by Alexander, J.
APPEAL from circuit court of Calhoun County; T.H. McELROY, J.
Fred B. Smith, for appellant.
The writ of mandamus can only be issued to require an officer or board to perform an act which the law specially and specifically enjoins upon such officer or board as a duty. Section 1109, Mississippi Code of 1942.
Where a discretion is left in an inferior tribunal, the writ of mandamus can only compel it to act, but cannot control the discretion.
Numerous Mississippi cases, many of which are listed in the first note under Sub-division 5 of the Citations under Section 1109 of the Mississippi Code of 1942, sustain this statement.
Mandamus can be used only to compel an officer to perform a mandatory duty of office, and not to compel action in any particular way, if the matter to be acted on is discretionary. City of Greenwood v. Provine, 143 Miss. 42, 108 So. 284.
The writ of mandamus is never granted to take effect prospectively. The duty must exist at the time the application for mandamus is made. Wood v. State, 169 Miss. 790, 142 So. 747.
Mandamus is an extraordinary writ, and the court is given discretion in the issuance of the same, and it is only to be issued where the public interest will not be adversely affected. McHenry v. State, 91 Miss. 562, 44 So. 831, Wood v. State, 169 Miss. 790, 142 So. 747.
The rule relative to public interest is laid down in 34 Am. Jur. Sections 35 and 36, Pages 830, 831, and in 38 Corpus Juris, 600, 601 and 602.
The Supreme Court of Mississippi early laid down the rule when, in the case of Board of Police of Attala County v. Grant, 9 Smedes and Marshall 77, it said: "Mandamus is the appropriate remedy to compel functionaries or tribunals to perform some duty required by law, where the the party has no other remedy; but the right or duty sought to be enforced must be certain. It will not lie if it is not." See also 38 Corpus Juris, pages 582 to 585.
A writ of mandamus should not be issued where there is a plain, adequate and speedy remedy at law, or where there is an adequate remedy by appeal. Hamilton v. Long, 181 Miss. 627, 180 So. 615; Jackson v. McPherson, 158 Miss. 152, 130 So. 287.
In the lower court counsel for the appellee took the position that granting that the election on the matter of the issuance of the bonds was improperly called, advertised, conducted and held, that still, all these defects had been cured by the Validation Act which was passed by the 1948 Legislature, and the defects being thus cured, the election, so validated, constituted a mandate from the people of the territory involved, and superseded the discretion given to the Board of Supervisors under the statute, and required the issuance of the bonds.
We do not take issue on the proposition, that under proper circumstances, the Legislature has authority to validate a bond issue and cure the defects therein so as to make bonds issued thereunder the legal obligation of the political entity issuing same. However, the issue here is not whether the bonds would be valid if the board of supervisors had elected to issue and sell same, but the issue is, does a wholly void election, held under the circumstances that constituted a complete departure from the statutory scheme constitute a mandate from the people. If it does not, as it certainly does not, can the Legislature, by a later enactment, breathe such life into it that not only are the bonds which might be issued thereunder made valid, but also as to make it a mandate of the people compelling an inferior tribunal to act thereunder. A void election is no more than a straw vote. Bear in mind that the Validation Act contains no provision requiring or directing the Board of Supervisors to issue the bonds. If it had, we would have a different issue. If the election was illegally held, it had no more force than a straw vote taken at a public gathering of the citizens of the territory. Would the validation of such a straw vote so taken, by the Legislature, compel the Board of Supervisors to issue bonds under the hospital statute? Of course the question is ridiculous. However, we believe that to say that a wholly void election constitutes a mandate from the people, compelling the Board of Supervisors to issue bonds, merely because the Legislature has validated the defects of the election, at a later date, is to assert the same identical position.
Since the question has been raised, we have sought to find some authority thereon, and it is almost a new question. The case most nearly in point, which has come to our attention, is the case of Wadsworth v. St. Croix County, from the Federal Circuit Court of the Western Division of Wisconsin, 4th Federal Reporter 378.
The court, in holding that the Validation Act simply cured the defects and irregularities in holding the election so as to put the supervisors in the same condition of authority as if the election had been properly held, that still, it did not impose any additional obligation on the supervisors.
The Validation Act added nothing whatever to the duty of the Board of Supervisors. The issuance and sale of the bonds was in the discretion of the Board of Supervisors before the Validation Act was passed, and it was still in its discretion after the passage thereof. It cannot possibly be said that because the Validation Act cured the defects in the election, the election became a mandate of the people. If it became a mandate at all, it could only become such as the result of an election properly and legally held. However, under the Community Hospital Statute, there can be no such thing as a mandate of the people as the discretion is always left in the Board.
It is interesting to note that the Validation Act undertook to validate the bonds before they were issued. It did not order the issuance of the bonds, but sought to validate them prior to the issuance thereof. We doubt the ability of the Legislature so to do, and if that can be legally done, then all questions relative to any bond issue could be obviated by a mere provision in the act authorizing the issuance of the bonds, to the effect that all bonds issued thereunder should be valid and binding obligations of the district issuing same. However, we will not pursue that question further, since it is apparent that the Validation Act could neither make the void election a mandate from the people, nor as written, could it control the discretion of the Board of Supervisors.
We have already cited authorities to the effect that mandamus will only lie to enforce definite and specific duties which are clearly and peremptorily enjoined by law. Yet, here we have a mandamus action seeking to compel a board of supervisors to cooperate with other authorities relative to the construction of a hospital. Who is going to determine what constitutes cooperation? What degree of cooperation is going to be required? The third division of the prayer of the petition for mandamus asks that the Board of Supervisors be compelled to cooperate with State and Federal Authorities. The judgment of the lower court granted the prayer of the petition. Thus, we find the court granting a prayer to compel a board of supervisors to cooperate. There is nothing in the petition to indicate that either the State or Federal authorities had requested them to cooperate, or that any effort had been made whatever, either by the State or Federal authorities, to secure any action on the part of the local Board of Supervisors whatever. We respectfully submit that mandamus is not a proper remedy to try to enforce so vague and uncertain a relationship between the commissions as cooperation.
It is generally held by the courts, and authority will hereinafter be set forth to the effect that the writ of mandamus shall not be issued where there is a remedy for the rights sought to be enforced by an appeal to the circuit court. Section 1195 of the Code of 1942 provides that any person aggrieved by a judgment or decision of the Board of Supervisors may appeal same to the circuit court, in the manner as therein provided. There are three primary requisites to the right of such an appeal. The first is that it shall be from a judgment or decision of the Board of Supervisors. The second is not apparent on the face of the statute, but, under the decisions of our court, it is a requisite of appeal, that, the judgment and decision shall be a final one on the issue involved therein. The third is that the person seeking the appeal shall be aggrieved at the judgment or decision. The Board of Supervisors, at its June meeting, as set forth in the statement of facts, entered a rather comprehensive order by which it definitely and finally determined, ordered and resolved that the proposed bonds would not be issued and sold, and each and every order theretofore entered by the Board relative thereto, was rescinded, set aside and held for naught. We will not encumber this brief by going into the question of whether or not this was an order or decision of the Board of Supervisors. We think that it unquestionably was. Certainly it was a final decision. If parties in interest were affected thereby, then they were aggrieved parties who could have appealed from that decision to the circuit court. If the appellee here has a right to maintain this suit, it had a right to prosecute such an appeal.
Where there is another ample remedy, mandamus will not lie, and where there is a right of appeal to settle and determine the question at issue, a writ of mandamus will not be issued. This was determined in the case of Robinson v. Board of Supervisors of Itawamba County, Mississippi, 105 Miss. 90, 92 So. 3.
We respectfully submit that the June order of the Board of Supervisors was a final decision, refusing to issue the bonds, and that any aggrieved person had the right to appeal, therefore, they had a full, adequate and complete remedy other than by mandamus, and that mandamus will not lie.
Smallwood Darden, for appellee.
The Legislature has the authority not only to prescribe the method of creation of hospital districts and the method whereby the districts may issue bonds, but the Legislature may also validate the creation of a district and the issuance of bonds after the fact. Section 89, Mississippi Constitution 1890; Griffith v. Vicksburg, (1912) 102 Miss. 1, 58 So. 781; Bacot v. Hinds County (1921) 124 Miss. 231, 86 So. 765; Parker v. Grenada County (1921) 125 Miss. 617, 88 So. 172.
The Legislature of Mississippi validated all precedent steps and the final order of the Board of Supervisors of Calhoun County ordering the bonds to issue, by Senate Bill 688, General Session of 1948.
This bill was approved upon April 14, 1948, and is a local and public act. Hass v. Hancock County (1938), 183 Miss. 365, 184 So. 812.
Any question as to whether the jurisdictional facts were properly found and entered upon the minutes of the Board in reference to this bond issue is now a moot question and has been since April 14, 1948, when Senate Bill 688 was approved.
Nothing was left for the Board to do except to have the bonds printed, signed, sold and delivered. The hospital district was in existence. The bonds were duly and legally authorized. The adjudication had been had which the legislature made valid, commanding that the bonds issue. There was no further discretion to be exercised and nothing but a clerical action necessary to acquire the money with which to proceed with the program that had already been adopted.
The Board could not at a meeting on June 11, 1948, rescind or vacate its own judicial action after the adjournment of the January 1948 meeting. Keenan v. Harkins, (1903) 82 Miss. 709, 35 So. 177.
This court in the case of DeSoto County v. Dean (1919) 120 Miss. 334, 82 So. 257, has held that mandamus is proper to require the issuance of district bonds by a board of supervisors. In that case, a road district was created under Chapter 173, Laws of 1916, an election was held, resulting in a favorable vote for the bond issue. The board undertook to impose its judgment on the people by refusing to take any action to issue the bonds. Objection was made that mandamus was not the proper remedy, but that appeal was the proper remedy, and also objection was made as to the validity of the notice published. The lower court issued the mandamus and on appeal this court, speaking through Mr. Chief Justice Smith, said: "The relief here sought is the enforcement of the performance by the appellant of a minsterial and not a judicial act; consequently, a writ of mandamus is the proper remedy." The lower court was affirmed.
"The writ (of mandamus) will issue where the respondent is in default of a plain, legal duty to issue and deliver bonds, such as improvement bonds or bonds to pay subscriptions to the stock of a railway company." 34 Am. Jur. 938, Mandamus, Section 162.
In footnote to the above citation, the following is set out: "Ex parte Selma G.R. Co. 45 Ala. 696, 6 Am. Rep. 722, in which county officers were compelled by mandamus to issue county bonds in payment of stock of a railway where the statute authorized the county to subscribe for the stock and issue bonds in payment therefor when the inhabitants have voted in favor of doing so, and the inhabitants did in fact vote in favor of the subscription."
This court recently held, in passing upon the school bond law in Board of Supervisors of Quitman County v. State ex rel. Chrisler (Jan. 24, 1949), 38 So.2d 314: "And we are of the opinion that this statute in providing the board of supervisors `may' issue bonds for such a consolidated school district means that the board shall do so if they find all the jurisdictional facts to exist for so doing, since this statute was enacted in the public interest, and it was not the intention of the Legislature that a board of supervisors may arbitrarily decline to issue bonds where such jurisdictional facts exist for their issuance. Had such facts been affirmatively adjudicated by the board, or by the circuit court upon an appeal from said order on bill of exceptions, to be present, then it would have become a mere ministerial duty to proceed with the issuance of the bonds as petitioned for, and the performance of such a remaining duty could be compelled by mandamus."
It is not the intent or purpose of the Legislature or of the law to permit a public body to impose its will upon a majority of the people where the people have constitutionally expressed their desire to tax themselves. Here that is attempted to be done. There is no question that there was a fair election in which the people properly expressed their desires. There is no question that the Board of Supervisors properly adjudicated all jurisdictional facts because the Legislature of Mississippi has said that the jurisdictional facts did exist and had been properly adjudicated. It follows, therefore, that the petitioner is entitled to the relief given it in the lower court and that the judgment of the lower court should be affirmed.
Petition for write of mandamus was filed by the appellee to compel the appellant to issue bonds of Supervisors' Districts 2 and 3 in the total sum of $150,000 for the purpose of acquiring land, constructing, equipping and operating a community hospital as authorized by Chapter 277, Laws of 1944, as amended by Chapter 412, Laws of 1946. The petition alleged in substance that the appellant at a meeting on October 10, 1947, created a hospital district in Calhoun County consisting of Supervisors' Districts 2 and 3 and at that time declared its intention to issue bonds of these districts in the amount stated. Publication was made of the resolution of the Board in respect of said matters, whereupon a petition signed by the requisite number of qualified voters was filed with the Clerk of the Board requesting that an election be called on the question of the issuance of such bonds. The Board entered its order adjudicating the sufficiency of the petition and ordered the election.
At its meeting on January 5, 1948, it considered the report of the election commissioners showing that a majority had voted for the issuance of the bonds, approved such report, and ordered the issuance and sale of bonds by the two districts in the sum of $75,000 each. Thereupon certain members of the Board were ordered to investigate the matter of co-operation with the State Hospital Commission as authorized by the statute. On June 11, 1948, the Board undertook by its order to rescind its action and provided that, "this Board here and now reconsiders, rescinds, sets aside and holds for naught each and every one of the orders theretofere referred to . . . and directs that said bonds not be issued for the purposes outlined." At the 1948 session of the Legislature it enacted Senate Bill No. 688 validating such bonds.
A demurrer was filed to the petition and from a judgment overruling the same and issuing the writ in default of further plea, this appeal is taken.
It is conceded that there was some irregularity in the steps preliminary to the ordering of the election. The issues raised by the assignments of error are resolved into the following questions: (1) Was the validation act of 1948 effective to cure defects or irregularities attending the election? (2) Did the action of the Board followed by an election favorable to the bond issue and the Act of 1948 constitute a mandate to the Board to issue such bonds? (3) Was the rescinding order of June 11, 1948, effective? (4) Was there available an adequate legal remedy, that is, by appeal from the so-called rescinding oredr of June 11, 1948?
(Hn 1) We are of the opinion that the act of 1948 validating bonds is effective and competent to this end. It recognized orders of the board signifying its intention to issue the bonds and the fact and sufficiency of the election thereon approving same. It provided "that the aforesaid proceedings had by the Board of Supervisors of Calhoun County, Mississippi and the election commissioners of Calhoun County, Mississippi, preliminary to the issuance of seventy-five thousand dollars ($75,000.00) of community hospital bonds" for each of the districts, 2 and 3, "be and the said proceedings are hereby ratified, approved, confirmed and validated" and that such bonds "when prepared, issued and sold are hereby declared to be valid and binding obligations of said districts, regardless of any statutory limitations, provision or restriction, and that any and all errors, defects, omissions, informalities or irregularities which occurred in the aforesaid proceedings of said Board of Supervisors and Election Commissioners are in all repects corrected and cured."
It is elemental that the power of the Legislature to cure by validation is measured by its power to enact the amendatory provisions as an original act. Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781; Parker v. Board of Sup'rs of Grenada County, 125 Miss. 617, 88 So. 172; Tonsmeire v. Board of Supervisors, Harrison County, Miss. 1 So.2d 511.
It is argued that the act of validation is merely enabling and constitutes no mandate to the board. We need not decide this but explore only the effect of the election thereby validated. (Hn 2) The Act, Code 1942, Cum.Suppl. Sec. 7129-50, et seq. grants discretion to the board in the matter of declaring an intention to create a hospital district and issue bonds, but when there is a petition filed requesting an election "then it shall be the duty of the board . . . to call and provide for the holding of an election as petitioned for." Could it be that the result of such election is a mere plebiscite to test public sentiment? We think it otherwise. The wishes of the electorate, invited by the board, and formally and fully expressed constitute a mandate to the board to issue the bonds.
In Board of Supervisors of De Soto County v. Dean, 120 Miss. 334, 82 So. 257, 258, it was held that after an election it became the duty of the board to issue the bonds. Appellant points out that Chapter 173 of the Laws of 1916 provided that "it shall be the duty" of the board so to act. Yet such finding was made appropriate by the reservation in the board's order: "That, in the event of the election resulting in the creation of the proposed district, and in the issuance of the bonds of same, the board still reserves the right to hear complaints of landowners of the proposed district that they receive no benefit from the proposed road improvement." Moreover this duty, aside from legislative recognition, exists. Board of Supervisors of Quitman County v. State ex rel. Crisler, Miss., 38 So.2d 314; 20 C.J.S., Counties, § 266(c). Authorities cited in brief for appellee from other jurisdictions confirm this view.
It is the election and not the validating act which imposed the ministerial duty of issuance. The curative statute is operative to invest the election with this vigor. The board's discretion has been exhausted; it has now become the people's agency to carry out its expressed will.
(Hn 3) It is argued that there remains in the board some discretion as to administrative details. By a previous order the board had set out the amount, date, description and other details of the proposed bonds. A contention is made that there remains to be determined whether and to what extent co-operation shall be sought and effected with other agencies authorized by the Act. This matter may lie within the discretion of the board but is not bound to avail of this privilege, nor is it a prerequisite to the issuance of the bonds on behalf of the two districts constituting the hospital area.
(Hn 4) Was there available an alternative and adequate remedy by appeal from the rescinding order of June 11, 1948? Apart from the consideration of the validity of such order, as to which see Keenan v. Harkins, 82 Miss. 709, 35 So. 177, such appeal would operate merely to test the validity of such order, and its avoidance by the Circuit Court could advance the cause no whit. The petition for mandamus is directed to the preceding orders of the board resulting in an election which it confirmed. The order of June 11, 1948, may therefore be ignored. While we need not adjudge its validity, we do deny to it any efficacy to overrule the mandate of the election.
In this connection Board of Supervisors of Quitman County v. State ex rel. Crisler, supra, is not in point for the reason that an appeal therein was necessary and proper to have the validity of the election determined, whereas in the instant case the validating act eliminated such uncertainty.
We are of the opinion that the trial court was correct in ordering the writ of mandamus as prayed for.
Affirmed.