Daily clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-03
DECISIONS OF THE HIGH COURT,
ERRORS AND APPEALS.
AT THE APRIL TERM, 1866.
Reported Expressly for Ihe Missi-siPPi
Clarion and Standard.


Kinds county, against the Auditor OF Pubic
Accounts, to obtain writ of mandamus re-
curing the Auditor to issue warrant on
the Treasurer for the sum OF - 4U4, the
amount claimed by the appellee to be due
him on account of his salary from October
-, 1863, to May Y, 1863 On the hearing
of the case, a peremptory mandamus was
awarded, and from this judgment a writ OF
error Is prosecuted.
The writ of mandamus Is not a writ Of
right, and does not pertain to the ordinary
jurisdiction OF the courts Of common law
In England, whence we derive 1t, II Is pre-
rogative writ, applicable only 10 eXtraordI-
nary occasions, for which the law furnishes
no other specific remedy. Ii can be issued
only by the Court of Kings Bench, and I'D
virtue of the peculiar character and cOnstl-
tuition of that tribunal, and its very high
and transcendent jurisdiction. large poi-
ton of the extensive powers OF that court, lh
experimenting inferior Jurisdictions, com
handing magistrates and others TO do their
duty and enforcing obedience to acts OF par
lament, is exercised by the agency OF the
writ of mandamus. In practice, an appllca-
ton is made to the court, supported by ath-
davits, for rule on the party 10 show cause,
on a day certain, why the writ should not be
issued. This rule, on the hearing, Is usually
made absolute 70. an alternative mandamus,
if any right be shown on the part Of the
prosecutor to that which he seeks or if the
case be one which the court thinks worthy
of fuller examination and discussion, or II
there he questions of law which ought to be
put in a more solemn train for inquiry, with
out determining whether peTeTnptoTy writ
will, or viii not, be ultimately awarded
Tapping on Maudamus, 35l, l3O3.)
We have no court in Mississippi possessing
the extraordinary powers Of the Court OF
Kings Bench, to whose cognizance the wit
of mandamus would belong without conStI-
ingly oar constitution provides that the
Circuit Courts shall have original Jurlsdlc-
ton, in all matter, civil and criminal, WltMh
this State" and the statutes confer upon
that court original jurisdiction OF "all civil
suits and actions and "0t all causes, mat
tiers and things, arising under the constltu-
ton and laws of this State, which ara not
expressly cognizable in some other court es-
tablished by law" Rev. Code, 4-2, art. -.
Power is given to the Circuit Court, IN term
time or in vacation, to allow writs Of man.
damus (Rev. Code. 40, art. 81 and similar
power is bestowed upon the Judges OF tins
Court. in reference to all remedial process.
Rev Code, S. 81, art. ). Under these pToVl-
sions in tie absence Of further regulations,
the practice has been adopted OF applying
BY petition to a Judge IN vacation Tor the
issuance of an alternative writ OF handamus,
returnable to the Circuit Court having local
jurisdiction. The petition thus comes in
and the fiat of the Judge is equivalent to
the rule absolute Beyond these necessary
notifications, the court Is left to be guided
in the proceedings, by the rules of common
law, although these rules have been mate
rally altered in England, by act of parlia-
ment as long ago as the reign of Queen Anne,
in I'LL, and the remedy by mandamus there
by made greatly more comprehensive and
beneficial.
1t is not necessary to attempt an enumera-
ton of the cases to which this remedy IS APP
phcable. 1t is a general rule, that whenever
a statute gives power to, or imposes an Obll-
CATION On particular person to do some par
ticular act or duty, aud provides no specific
remedy on non-performance, n maudamus
will be granted Tapping 50, (30.) There
must be a clear legal right, and no specific
legal remedy for its enforcement. When di-
rected to public officer, it must be to en-
force the performance of mere ministerial
act, not involving on the part of the officer
the exercise of any Judgment or discretion.
Marbury VS. Madison, ! Cranch 49,; Decatur
VS.. Paulding, Ia Peters, S. "a; Brashear VS..
Mason, How. s. c. L. S %. In the former
of these cases the pTOpriety of the remedy
was asserted on the ground that the SecTeta-
~ of State was directed by law to do GER
tain act affecting the absolute rights of midi
viduals, the performance of which the Pre-
sident could not forbid; and in the two lat
ter it was denied on the ground that the duty
sought to be enforced, was not ministerial
merely, but required the exercise of judg-
ment and discretion Stress was laid on the
fact that the officers We're the heads of the
chief executive departments of the govern
ment, the various and important concerns OF
whose offices were executive in their charac-
ter and not ministerial
In Kendall VS.. U. States, II Peters, $. "a,
| (6I3.) the writ was sustained, on the ground
that the duty sought to be enforced was a
t,r,1t mt y mi
| about which the Postmaster General had no
discretion whatever That the right OF a
public officer to receive n warrant for the
| salary attached by law to his office, belongs
| to the class of cases to which the wnt OF
| mandamus is applicable, was expressly ad
| indeed in Pare vs.. Warden, b. Monroe, 6iS
| by the Supreme Court of Kentucky, and hai
| been recognized in several cases 10y TIM
| Court And ii NAV be observed, generally
| that in all cases where the right OF the party
| and the amount he is entitled to receive iron
| the State, are clearly ascertalned by law
| leaving no discretion to the Auditor, ant
there is an existing appropriation for its pay
| ment the duty to issue the warrant may b.
| regarded as purely ministerial, and as one
the performance Of-which, in a case in othe
respects proper, may be enforced by man
| damus.
1t is to be observed, however, that a sove
| reign State cannot be sued without its owl
consent, and that the only remedy IN ordina
ny cases to obtain payment of a claim agains
the Government, Is by application to The
Legislature, and that the remedy by man
danms is not to be extended so as to becOm,
in effect a suit against the State to establish
demands which are uncertain, or unlqul
dated, and which properly fall under tn
legislative cOgnizance.
| The present case then being in its genera
character a proper one for the application o
this writ the issuance of it is resisted, on tn
ground that a legislative prohibition exist
against ii.
Bv the ''act concerning the salaries of off
GERS Revised Code, 40, art, l, it is enacte'
that the following annual salaries shall b
allowed. and paid in quarterly payments
after being audited according to law, to tn
several officers hereafter named, to-wit: t
each District Attorney the sum of tfteel
hundred dollars" BY art p, Rev. Code, l0e
| it is made the duty of the Auditor OF Publ
Accounts Ito examine, state, settle and audi
| all accounts claims or demands whatsoeve
| against the State, arising under any acts o
resolution of the Legislature, and to gran
to every claimant authorized 70 receive tn
| same, warrant on the State Treasurer, az
If the rights of the relator depended eN
clusively upon these provisions, the proprit
| ty of awarding a peremptory mandarin
| would be quite apparent But at the las
session of the Legislature various acts an
resolutions were adopted, bearing direetl
upon this subject, among which is join
resolution, approved October p, 1865, in til
following words:
"Resolred BY the Legislature Of the State
Mississippi, That the Auditor of Public Az
counts be, and he is hereby directed to issu
: | no more warrants upon the Treasurer, fo
the payment of money, until further o
ders"
This Joint resolution, though il takes th
: form of a mere mandate to the officer, mus
if entitled TO have any effect at all, be con
: strued a repeal, or at least as a snspensio
= of the provisions of the Code on the suhie,
: of the issuance of warrants, and as takin
: away from the Auditor all power to isSU
: warrants on the Treasurer for the paymeI
T of money, until otherwise authorized b
n law.
The relator contends that this resolutio
forms no defence to his application for a mai
damus, for the following reasons. to-wit:
l. That il is void for want of an enactin
e clause, in the language prescribed 10y I'll
/. constitution.
!, , That il was not required to be read ,
passed with the forms prescribed in case
a bill, and therefore cannot operate TO repe,
a law formally enacted, not being OF equ.
I dignity.
n 3. That if otherwise valid, it would impa
: the obligation of the contract between hin
= self and the State, and would take away b
II vested rights under that contract; and
V 4. That II did not take effect at all unit
after the date of the Judgment in his fav'
in the court below and therefore can hay
no application.
l. The first question is whether the resol
o .tion is void for want of a sufficient enaetu
i clause; and this involves another questio
q to-wit: whether the Legislature has the co
!. | stitutional power TO pass joint resOlutiC