Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-03
AT THE APRIL TERM, 1866.


duty, and enforcing obedience to acts of par
lament, is exercised by the agency of the
writ of mandamus. In practice, an applica-
tion is made to the court, supported by atfi-
davits, for a rule on the party to show cause,
on 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 if
there be questions of law which ought to be
put in a more solemn train for inquiry, with
out determining whether peremptory writ
WILL or will not, be ultimately awarded
Tapping on Mandamus, 35l, (3O3)
We have no court in Mississippi possessing
the extraordinary powers of the Court of
Kings Bench, to whose cogniZance the writ
of mandamus would belong without const-
tutional or statutory regulation. Accord
ingly our constitution provides that 1.-THE
Circuit Courts shall have original jurisdic-
ton, in all matter, civil and criminal, within
this State" and the statutes confer upon
that court original jurisdiction of "all civil
suits and actions" and "of all causes, mat
tiers and things, arising under the cOnstltu-
tiOn and laws of this State, which ara not
expressly cOgnizable in some other court es-
tablished by law" Rev. Code 482, art. %.
Power is given to the Circuit Court, in term
time or in vacation, to allow writs of man.
damus, (Rev Code. 479, art. 81 and similar
power is bestowed upon the Judges of this
Court, in reference to all remedial process
Rev. Code, S. 81, art. 3. Under these prOvi-
sions, in tie absence of further regulations,
the practice has been adopted of applying
by petition to Judge in vacation for the
issuance of an alternative writ of Inandamus,
returnable to the Circuit Court having local
jurisdiction. The petition thus comes in
,Nlo 9 10 rNCIo
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 l711, 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
plicable 1t is a general rule, that whenever
| statute gives power to, or imposes an Obli-
| CATION on particular person to do some par
! ticular act or duty, and provides no specific
remedy on non-performanCe, a mandamus
will be granted Tapping 80, (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 a mere ministerial
| act, not involving on the part of the officer
| the exercise of any Judgment or discretion.
Marbury VS.. Madison, L Craneh 137; Decatur
VS.. Paulding, IA Peters, s. "a; Brashear VS.
| Mason, 6 How S. c. U. S. %. In the former
| of these cases the prOpriety of the remedy
was asserted on the ground that the Secreta-
| ry of State was directed by law to do a GER
| tain act affecting the absolute rights of ndi-
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 were 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, IL Peters, s. "a
(613.) the writ was sustained, on the ground
that the duty sought to be enforced was q
| precise, definite act, purely ministerial, and
| about which the Postmaster General had nc
discretion whatever" That the right of q
| public officer to receive warrant for The
salary attached by law to his office, belongs
| to the class of cases to which the writ o.
mandamus is applicable, was expressly adj
Judged in Page VS. Warden, 3 B. Monroe, 64S
| by the Supreme Court of Kentucky, and hal
been recognized in several cases by thi
| Court And it may be observed, generally
that in all cases where the right of the party
| and the amount he is entitled to receive from
the State, are clearly ascertained by law
leaving no discretion to the Auditor, anC
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-whieh, in case in othe
| respects proper, may be enforced by man
| damus. .-.r. ..--r.-
1t is to be observed, however, that sovC
| 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 tn
Legislature, and that the remedy by man
danus is not to be extended so as to becom
| in effect suit against the State to establis
demands which are uncertain, or unliqu
dated, and which properly fall under tn
| legislative cognizance.
The present case then being in its genera
character proper one for the application G
this writ, the issuance of it is resisted, on tn
ground that a legislative prohibition exist
against it,
| By the "act concerning the salaries of Oft
GERS" Revised Code, 140, art, l, it is enacte
chat 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:
each District Attorney the sum of fiftee
it is made the duty of the Auditor of Publ
Accounts "to examine, state, settle and audi
all accounts claims or demands whatsOeve
against the State, arising under any acts Q
resolution of the Legislature, and to gran
to every claimant authorized to receive th
same, a warrant on the State Treasurer, az
If the rights of the relator depended e1
clusively upon these provisions, the prOpri'
ty of awarding a peremptory mandarin
i 011l6 ha 70
session of the Legislature various acts an
resolutions were adopted, bearing directl
upon this subject, among which is a join
resolution, approved October 25, 1865, in til
following words s-,-.. s,-s.s es.,s....
"Resolred By the Legislature of the State
Mississippi, That the Auditor of Public Al
counts be, and he is hereby directed to issu
no more warrants upon the Treasurer, fo
the payment of money, until further o.
ders" 3u4 refts,stais1
This joint resolution, though it takes til
form of mere mandate to the officer, mus
if entitled to have any effect at all, be col
| strued as a repeal, or at least as a suspensio
? of the provisions of the Code on the subieC
: of the issuance of warrants, and as takin
away from the Auditor all power to issu
: warrants on the Treasurer for the paymeI
r of money, until otherwise authorized b
4 law. s.... fs..rr,1A ~, ....s.s
The relator contends that this resolutio
forms no defence to his application for maj
damus, for the following reasons, to-wit:
1. That it is void for want of an enactin
9 clause, in the language prescribed by IL
|. constitution. ora al
h 2. That it was not required to be read
passed with the forms prescribed in case
a bill, and therefore cannot operate to repe
law formally enacted, not being of equ
/ dignity.
a 3. That if otherwise valid, it would impa
a the obligation of the contract between hiI
= self and the State, and would take away b
y vested rights under that contract; and
y 4. That 1t did not take effect at all uni
after the date Of the Judgment in his fav
in the court below, and therefore can ha'
!. no application. NtIAItE = =
/. The first question is whether the resol
o .tion is void for want Of a sufficient enactir
(. clause; and this involves another uuestio
"a to-wit: whether the Legislature has the co
!. stitnfional power to pass joint resolutiC
- at all. to have the force and effect Of law
Q BY the fourth section of the third artic
e of the constitution, the Legislative power
h the State Is vested in the two branches viii
constitute the Legislature, and it is ordain
y that "the style Of their laws shall be, BE
81 enacted By the Legislature Of the State Of M
% sissippt" As the style Of this resolution
AZ Resolved by the Legislature Of the State
Mississippi" If literal adherence to the 4
- mpla prescribed BY tine constitution is
1. q9lrsd, itwould FOLLOW that the resolution
ID wholly void. The question Is one that dc
ID not seem 60 have received Judicial decisic
M 20 far as we have been able to discover, b
!. In work cited, ON the laws and PRACTICE
N legislative assemblies, by AFR. Cushing, Z
d. opinion Is expressed that this form of ena,
ment must be strictly pursued, and that