Opinion
No. 37593.
January 23, 1950.
1. Mandamus — venue — public officers.
Mandamus is a personal action, and when a public officer is the defendant in such an action, it must be brought in the county of his residence; so that when the Commissioner of Public Safety has been sued as the sole actual defendant in a county other than that of his residence, it is reversible error to refuse a change of venue on his application therefor.
2. Mandamus — the duties sought to be compelled must be specific, not general.
No relief can be granted on a petition in mandamus against a state employee which does not charge a failure to perform a specific duty, and which seeks merely to compel him to perform his duties generally.
3. Mandamus — venue — joining resident defendant against whom no cause of action is stated.
When in mandamus no cause of action is stated against a resident of the county in which the action is brought, it being manifest that the resident was made a party solely to retain venue in that county, the venue must be changed on his application therefor, to the county of the residence of the real defendant whose absolute right thereto cannot be avoided by any such device as that thus attempted.
4. Mandamus — only public interest involved — must be by attorney general or district attorney, not by private individuals.
When the petitioners for a writ of mandamus have suffered no legal injury other than that suffered by the body of the citizens and taxpayers, or in other words, when the matter presented is one affecting the public interest only, they are without right to maintain the action either individually or in the name of the state; but such an action could proceed only in the name of the state by its attorney general or district attorney.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Simpson County; HOMER CURRIE, Judge.
James T. Kendall, Assistant Attorney General, for appellants.
I. The petitioners are without justiciable interest in this cause and are without the right to bring and maintain same. Section 1109, Code 1942; Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808; Trahan, et al. v. Price, 168 Miss. 818, 151 So. 566, 567; State for use of Boyle, et al. v. Matthews, 196 Miss. 833, 18 So.2d 156; McKee v. Hogan, 145 Miss. 747, 110 So. 775; Storey et al. v. Rhodes, 178 Miss. 776, 174 So. 560; Mississippi Road Supply v. Hester, 185 Miss. 899, 188 So. 281.
II. The proper venue in this cause was in the first judicial district of Hinds County.
(a) The proper venue under the original petition. Section 1433, Code 1942; Section 1110, Code 1942; State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614; Tucker et al. v. Gurley et al., 176 Miss. 708, 170 So. 230; Holyfield v. State, to use of Adams, 194 Miss. 91, 10 So.2d 841.
(b) Venue under amended petition joining individual patrolmen. Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Foreman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469; McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847.
III. The court erred in overruling the appellant's demurrer to the amended petition.
(a) The petition failed to contain specific allegations to show any failure or refusal to perform any duty imposed by law. Section 1109, Code 1942; Selig v. Price, 167 Miss. 612, 142 So. 504; Loeb v. Board of Trustees, 169 Miss. 790, 142 So. 747; Hiawatha Gin Co. v. Mississippi Farm Bureau, 138 Miss. 605, 103 So. 345.
(b) Petition did not pray that appellants be compelled to perform any specific duty. Section 1109, Code 1942.
(c) Mandamus cannot be resorted to for the purpose of enforcing a general course of conduct. Section 74, Mandamus, 34 A.J. 864; Section 157, Mandamus, 34 A.J. 935; Section 66, Mandamus, 55 C.J.S. 109; State ex rel. Beardslee v. Landes, 64 A.L.R. 973, 149 Wn. 570, 271 P. 829; People ex rel. Bartlett v. Dunne, 219 Ill. 346, 76 N.E. 570; People ex rel. Bartlett v. Busse, 238 Ill. 597, 28 L.R.A. (NS) 246, 87 N.E. 840; State ex rel. Hawes v. Brewer, 39 Wn. 65, 109 Am. St. Rep. 858, 80 P. 1001, 4 Ann. Cas. 197; People ex rel. National Cigar Co. v. Dulaney, 96 Ill. 503; International R. Co. v. Schwab, 203 App. Div. 68, 196 N.Y. Supp. 659.
(d) The Highway Safety Patrol has no general authority to enforce the prohibition laws. Section 8082, Code 1942, as amended by Section 4, Chapter 420, Laws of 1946; Baldwin v. State, 175 Miss. 316, 165 So. 61; Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346; Kennington-Saenger v. Wicks, 168 Miss. 566, 151 So. 549; Copeland v. State, 202 Miss. 58, 30 So.2d 509.
(e) The individual highway patrolmen were neither proper nor necessary parties defendant. Glover v. City of Columbus, 197 Miss. 467, 19 So.2d 756; Monette v. State, 91 Miss. 662, 44 So. 989.
We wish to again point out that this case does not involve the question of whether or not the prohibition laws of this state should be enforced. All right-thinking citizens agree that such laws should be enforced as long as they are on the statute books. The question involved in this case, however, is where the responsibility for enforcing such laws rests, and specifically whether or not the members of the Highway Safety Patrol of this State have the authority and power to enforce such laws. The laws of this State enacted by the Legislature specifically provide, we submit, that the Highway Safety Patrol is vested only with limited police powers in enforcing the traffic laws, rules and regulations, and that the members of such Patrol do not have the same general police powers as the sheriffs of the various counties or other law enforcement officers. In view of the laws enacted by the Legislature the appellants deny that the citizens of this state have the right to look to the appellants for the general enforcement of the laws prohibiting the sale, transportation and possession of intoxicating liquor. Under the Constitution and statutes of this State the sheriffs of the various counties are made the chief law enforcement officers of such counties. The Legislature has never intended and has never provided that the Highway Safety Patrol should displace or usurp the authority of the sheriff as the chief law enforcement officer of his county. Any attempt by the Legislature to provide that the Highway Safety Patrol should so displace said sheriff would, in our judgment, be violative of the Constitution, and in addition would take from the citizens of the various counties the time-honored right to local self-government.
The sheriff of each county is vested with full, complete and plenary statutory authority to suppress any traffic in intoxicating liquor that might exist in his county and, therefore, under the Constitution and statutes of this State the appellees here and the other citizens of Simpson County have the right to look to and call upon the sheriff of their county for the enforcement of the laws against the sale, possession and transportation of intoxicating liquor if any failure to enforce same exists in such county as alleged in said petition. In this case we have the unusual and anomolous situation of the sheriff of one of the counties of this State signing a petition for a writ of mandamus seeking to compel some other agency to enforce the laws which it is his duty to enforce, and at the same time alleging in the petition that the laws which it was his duty to enforce were not enforced to the extent alleged in paragraph 5 of said petition. We do not know what condition actually exists in Simpson County, Mississippi, but we do say that if any such widespread failure to enforce the prohibition laws does exist there then that the people have the right to look for the enforcement of these laws not to the Mississippi Highway Safety Patrol but to the duly elected sheriff of the county.
George B. Grubbs, for appellees.
Appellants' contention is that the appellees do not have the authority to bring and maintain this issue.
Under Section 1109, Code 1942, governing the issuance of writs of mandamus it is shown that on the petition of the State by its Attorney General or District Attorney in any matter affecting public interest "or on the petition of any private person who is interested", writ of mandamus shall be issued, etc. It is under this section that the appellees contend they have the right as private persons who are interested in their constitutional rights to bring and maintain this suit requiring the appellants herein to do and perform their duties as the law specifically directs.
The petition alleges that petitioners are duly qualified electors of Simpson County, Mississippi, and it will further be shown that five of the duly elected officials of said county and state are also petitioners for the relief sought. Appellants' contention is that under Section 1109 Code 1942 that the petition for a writ of mandamus can be brought only in the name of the State by its Attorney General or District Attorney. It is the contention of the appellees herein that in the construction of this section of the statute it also authorizes and empowers private persons to also file petition asking for a writ of mandamus.
Petitioners respectfully call this court's attention to Paragraph Five (5) of the original petition as filed herein which is as follows: "Petitioners would further show that the people of this county and state are entitled to the rights and liberties and enforcements of the law of the land, and the failure to do so creates a state of disgust, confusion, disrespect and distrust and as taxpayers they are being deceived, cheated, ignored, defrauded, misled and deprived of their constitutional rights and liberties all due to the wrongful, fraudulent and unlawful act of the defendant herein."
It is our contention that where the rights of the citizens of this state have been hampered, interfered with, disregarded, ignored, that those people have the right to follow the law under this section by filing the proper petition asking the court for a writ of mandamus against any public official who fails to do the duty according to the law of the land. 35 Am. Jur. p. 73, Section 320, thereof, reads as follows to wit: Enforcement of Public Rights and Duties. — "The decisions are not altogether harmonious upon the question whether private persons may sue out the writ of mandamus to enforce the performance of a public duty. It is clear that they may do so where the nonperformance of it works a special injury upon them, and although there are some decisions to the contrary, the rule established by the preponderance of authority is that where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced, even though he has no exclusive right or interest to be protected. As a guard to public officials against too numerous and unreasonable attacks, the general indifference of private individuals to public omissions and encroachments, the fear of expenses in unsuccessful and even in successful litigation, and the discretion of the court have been very largely depended upon. But acts of public officers which could not injure the petitioner in any way will not furnish him ground for complaint."
While appellees admit that the Mississippi Highway Safety Patrol is in reality an arm of the State, yet appellees contend that their private right along with the private right of each and every citizen of the State of Mississippi has been infringed upon and disregarded and that each and every citizen of the State of Mississippi private rights have been interfered or tampered with, result in this being a matter of public interest and not one in which each and every citizen of the State should join herein.
Furthermore, the following section of the above referred Section 321, 35 Am. Jur. p. 75, outlines the duties owing directly to the State in its sovereign capacity.
"The distinction between cases where private persons may act as relator to enforce a public duty and those where he must show an interest before he can obtain the writ has not been drawn very clearly. The dividing line seems to lie between those cases where purely private rights are affected and those where the state is the real party and the relator merely an instrument to procure the enforcement of a duty owing to the public in general. The authorities concur in support of the proposition that an individual may have a particular interest of his own, independent of that which he holds as a member of the general public, but is in possession of a separate and peculiar right which makes him the party interested and so entitled him to seek a mandatory writ to enforce the duty."
Here it discusses the right of private individuals to enforce by mandamus duties owing the public, the distinction in each of these cases being that the right of enforcement of the prohibition laws upon the highways of the state highway system by the said highway safety patrol is not the right owing to the state but one owing to the citizens of the state in equal respect thereto. As above stated under Section 320 of the Section under Mandamus, Am. Jur. states, ". . . Although there are some decisions to the contrary, the rule established by the preponderance of the authority is that where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed as the duty in question enforced . . .". Therefore, in view of the above, it is is not necessary to show more in the petition than the fact that the appellees herein are citizens of the state since the duty owed by the Commissioners of the Highway Safety Patrol and each respective patrolman is that duty of the public enforcing the laws conferred upon them by the Legislature of this state.
Furthermore, along these lines this court has held in the case of Overstreet v. Lloyd, 160 Miss. 444, that, "the issuance of a mandamus is in the Court's sound discretion". Appellants' learned counsel seems to be laboring under the apprehension of evading this issue wherein this court has held that it is in the court's sound discretion to order or reject the writ of mandamus. It is not contended that the lower court has abused this right in any manner or form whatsoever.
The appellant contends that the proper venue of this cause was in the First Judicial District, Hinds County, Mississippi, and for that reason the same should be reversed by this court. Section 1110 Code 1942, concerning the question of venue of such proceedings as the one at bar, states as follows: "The petition for mandamus shall be filed in the Circuit Court of the county in which the tribunal, corporation, board, officer, or person made defendant, or someone or more of them, shall reside or be found, but if the Judge of that court be interested, the petition may be filed in an adjoining circuit court district."
The defendant, Birdsong, who was made defendant under the original petition as filed herein was served process by the sheriff of Simpson County within his jurisdiction. Furthermore, it is an undisputed fact that the issuance of the order complained of in this petition is felt not only by the people of Simpson County but by the people of each county in the State of Mississippi in which travels there through a state highway and upon which travels the Highway Safety Patrol. The people of this state have the right under the Constitution and it is guaranteed to them to look to the proper officers that are clothed with the authority conferred upon them by the legislature to enforce the laws of the land. A failure to enforce those laws gives rise to a cause of action against their acts and it matters not where the one responsible may be but where a citizen's rights have been evaded.
Appellant is a Commissioner whose domicile is not set up or designated by the legislature of the State of Mississippi. The State Highway Commission is a commission created by law whose domicile and office are located in Jackson, Hinds County, Mississippi, fixed by law. The law is silent as to the domicile of the Highway Safety Patrol. 35 Am. Jur. p. 64, Section 310, states as follows: "Place of Bringing Suit: Venue. — The venue of mandamus proceedings is, as in other actions and proceedings, largely controlled by statutes. These may contain provisions relating specifically to mandamus or to mandamus against particular officers, corporations, or persons. It has been held that mandamus to compel a sheriff to execute a deed to a redemptioner may be brought in the county where the relator resides, despite the existence of a statute providing that actions against a public officer for acts done by him in virtue of his office shall be tried in the county where the cause arose, since such statute applies only to affirmative acts of the officer, and not to mere omissions or neglect of official duty. Mandamus is generally regarded as a civil action, and has been deemed such within the meaning of a statute regulating change of venue in civil actions."
Appellees therefore repectfully submit that the proper venue of this proceeding is in Simpson County, because the defendant, Birdsong, was served with process by the sheriff of Simpson County, in his jurisdiction; that the patrolmen of said Highway Safety Patrol operate in, through and upon the state highways in and through Simpson County, as is admitted by the defendant, Birdsong, and that as shown in the record the cause of action arose herein.
Appellees, therefore, conclude that this is an action involving the constitutional rights of each and every citizen of the state. That the people having paid, through taxes and appropriations by the legislature of this state, more than a million dollars to this agency, the Mississippi Highway Safety Patrol, to do and perform their duties as the law directs. When in view of the law which appellant admits through his counsel that the Highway Safety Patrol is vested with the authority of enforcing the prohibition laws on the highways of this state and in considering the fact Patrolman Hopkins stated, "if we had the authority". It is the conclusion of the appellees that they are entitled to the relief herein sought. The appellant has not challenged the discretion of the lower court which in view of the above decisions it is in the sound discretion of the court to order a writ of mandamus and this court has so held.
With the differences to the contention of the appellant concerning the sheriffs of the respective counties of this state appellees admit that the sheriffs of the respective counties are the chief law enforcement officers of that county but the various constables of each county and the Highway Safety Patrolmen upon the highways of each county of the various counties are likewise clothed with the authority and it is their duty to perform certain functions of the law and that in the case at bar, these officers are clothed with the authority and it is their duty to enforce the prohibition laws upon the highways which they are illegally advised and instructed not to do. This is not a petition seeking relief or assistance even though no doubt it would accomplish that but one requiring the officers of the State Highway Safety Patrol to do and perform their duties as the law makes mandatory upon them. The condition that exists in this county is similar to that which exists throughout the State of Mississippi which is the citizens and taxpayers are being cheated and ignored of their rights and expectations looking to the law enforcement officers to execute their duties as the law directs.
This is an appeal by T.B. Birdsong, et al., from a judgment of the Circuit Court of Simpson County, granting, on the petition of George B. Grubbs, et al., a writ of mandamus against appellants.
The appellees brought this suit for the use and benefit of themselves, the people of Simpson County, and the State of Mississippi. They charged that T.B. Birdsong, as Commissioner of the Mississippi Highway Safety Patrol, about March 19, 1948, had unlawfully issued an order to all patrolmen, under no circumstances, to enforce the laws applicable to the transportation, possession, and sale of intoxicating liquor; that the commissioner and the patrolmen were under the duty to enforce these laws, in that the law specifically provides that: "the powers and duties of the Highway Safety Patrolmen shall be to arrest without warrant any person or persons committing or attempting to commit any . . . breach of the peace . . . within their presence or view on any Highway of the State Highway System or the rights of way of such Highways and pursue any person committing such an offense to any place in the State of Mississippi where he may go;" and that their failure so to do had brought about a state of disgust, confusion, distress, and distrust, inasmuch as appellees were entitled to their rights and liberties and to the enforcement of the law of the land. They further complained of Message No. 91, but the same was not attached to the petition. They prayed for a mandate to the commissioner, "requiring him to do and perform all those acts and things that the law makes mandatory by instructing each and every patrolman of the Mississippi State Highway Safety Patrol that said order or message No. 91, as aforesaid is wholly void and require them, the said patrolmen, to perform their duties as the law directs."
Process was served on Birdsong in Hinds County. On his motion, this process was quashed. Thereupon, he made a motion to change the venue to the First Judicial District of Hinds County. This motion was in sufficient form. At that time, Birdsong alone was the defendant. Upon hearing the evidence, by order dated May 17, 1949, the court took the motion under advisement. Four days later, on May 21st, and before the court made a decision on this motion, an amendment of the petition was permitted so as to join several patrolmen as defendants, one of whom, James L. May, was charged to be an adult resident of Simpson County. Subsequently, on May 26th, the court overruled the motion for change of venue. The amended petition, in addition to naming the other defendants, alleged that the appellees were without remedy other than by mandamus directed to the defendants, compelling them to act in accordance with the mandates of the law, "in that the defendant Birdsong be required to rescind any and all unlawful orders, messages, or instructions to each and every Highway Safety Patrolman, and that the other Defendants herein be required to execute their duties as the law directs."
The only addition to the prayer of the original petition as to Birdsong was that he be required to perform these acts "by executing his duties as the law directs;" and as to the other defendants, to "require the other defendants herein" to perform their duties as the law directs.
A copy of Message No. 91, complained about, was attached to the amended petition, and is as follows:
"January 14, 1949
"To All Inspectors:
"1. In spite of several previous Bulletins along these lines, it comes to my attention that some Patrolmen in Northeast and South Mississippi, are exerting themselves to apprehend liquor trucks.
"2. Advise you again that as long as they do not violate laws on the Highways, have proper lights, brakes, etc., and not speeding or driving while Drunk, then it is no concern of ours.
"3. All inspectors see that all men are aware of this and previous orders on the subject.
"Yours very truly, "S/S T.B. Birdsong "Col. T.B. Birdsong "Commissioner of Public Safety"
Thereupon, appellants answered, and in their answer set up many matters in abatement and in bar. There were demurrers also. By the pleadings, the appellants timely raised the question of venue; that the appellees were without right to bring and maintain this suit; that there was no specific allegation to show any failure or refusal to perform any duty imposed by law; that there was no prayer that appellants be compelled to perform any specific duty; that mandamus will not lie for the purpose of enforcing a general course of conduct; that the Highway Safety Patrol has no general authority to enforce the prohibition laws; and that the individual patrolmen were neither proper nor necessary parties.
(Hn 1) Section 1110, Code of 1942, fixes the venue in mandamus as follows: "The petition for mandamus shall be filed in the circuit court of the county in which the tribunal, corporation, board, officer, or person made defendant, or some one or more of them, shall reside or be found; but if the judge of that court be interested, the petition may be filed in an adjoining circuit court district."
According to the allegations and the proof, T.B. Birdsong is a public officer of the State. His official domicile is in the City of Jackson, in the First Judicial District of Hinds County. Besides, he is a resident, householder, and qualified elector thereof. Mandamus has been held to be purely a personal action. State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614.
Section 1433, Code of 1942, fixes the venue of actions in the circuit court generally and provides: ". . . If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, or if a public officer be sued in any such action, out of the county of his household and residence, although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence, whether such suit is filed before or after such officer's term of office has expired."
Hence, at the time of hearing the petition, beyond peradventure, the change of venue should have been granted.
What was the effect of joining patrolmen as other defendants, one of whom, May, was a citizen of Simpson County? (Hn 2) The amended petition did not charge May or the other patrolmen with a failure to perform a specific duty. It sought merely to compel them to perform their duties generally. On that kind of allegation, no relief could be granted.
Section 1109, Code of 1942, provides 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."
(Hn 3) Hence, the amended petition stated no cause of action against the patrolmen, and the change of venue still should have been granted. And since no case for relief was stated against them, there is no escape from the conclusion that these patrolmen were made defendants for the sole purpose of retaining the venue in Simpson County. This cannot be done to deprive a litigant of an absolute right. See Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Forman v. Mississippi Publishers Corporation, 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469; Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207; McRae v. Ashland Plantation Company, 187 Miss. 350, 192 So. 847. In this connection, we are not saying even that the allegations of the petition are sufficient to grant relief against Birdsong. That question is expressly pretermitted.
The change of venue should have been granted, and this error alone would necessitate a reversal.
However, a question of jurisdiction appears and the answer thereto is decisive.
Reference is again made to Section 1109, Code of 1942, supra. Of course, under this section, mandamus may issue to enforce the private right of a person when such private right entitles him to coerce a mandatory duty. (Hn 4) But, in this case, the appellees undertook to assert a right for themselves and for the general public. If they, in fact, suffered a legal injury, it is no different from that suffered by the great body of citizens. A prerequisite to the commencement of this suit was the petition either of the attorney general or the district attorney.
This Court has already laid down this rule in State ex rel. Trahan et al. v. Price, State Auditor, 168 Miss. 818, 151 So. 566, 567, where the Court said: "Mandamus is regulated by statute, and, in matters affecting the public interest, the action must be brought on the petition of the state by its Attorney General or a district attorney. It having been determined that the relators have suffered no legal injury other than that suffered by any other of the great body of the citizens and taxpayers of the state, or, in other words, that the matter is one affecting the public interest only, they are without right to maintain the action individually, or in the name of the state, but such suit could only proceed in the name of the state by its Attorney General or district attorney."
Again, in Hancock County v. State Hwy. Commission, 188 Miss. 158, 193 So. 808, 809, the Court followed the rule in Trahan, et al. v. Price, State Auditor, supra, and said: "The writ of mandamus is distinct from ordinary suits. It is a prerogative writ issued by the State through such representatives as it may intrust with that power, and under Section 2348 suits involving the public interest are to be brought on the petition of the attorney general or a district attorney." The State did not legally become a party to this suit — neither the attorney general nor the district attorney having instituted the same — and its appearance therein was not entered by the proper officer authorized so to do. Hence, a judgment, under such circumstances, is a nullity insofar as the rights of the state are concerned. See State ex rel. Rice v. Stewart, 184 Miss. 202, 221, 184 So. 44, 185 So. 247.
The appellees being without any right to commence or prosecute this suit for the reasons herein above stated, it follows that no action could have been rightfully taken by the court in this matter, and that the petition for mandamus should have been dismissed.
Reversed and dismissed.