Opinion
No. 31548.
January 28, 1935.
1. CONSTITUTIONAL LAW.
Determination of constitutionality of statute by board or commission has no binding effect, since final authority to determine constitutionality of statute is vested in judiciary.
2. MANDAMUS.
Where statute, whose constitutionality was not questioned, authorized superintendent of state penitentiary to appoint dispatch sergeant, predecessor of superintendent's appointee held not entitled to mandamus compelling superintendent to honor order of trustees of penitentiary allowing predecessor salary for period after superintendent's appointee took office, since trustees' allowance order although unappealed from, was not binding as to constitutionality of statute, and since, if statute were constitutional, predecessor's right was doubtful (Laws 1934, chapter 147, section 11).
ON SUGGESTION OF ERROR. (Division B. Feb. 11, 1935.) [159 So. 539. No. 31548.]1. APPEAL AND ERROR.
Point not argued on appeal is deemed waived.
2. APPEAL AND ERROR.
On suggestion of error, Supreme Court will not consider new contention which was not assigned or argued on submission of case.
APPEAL from circuit court of Sunflower county.
HON. S.F. DAVIS, Judge.
Petition by the state, on the relation of E.T. Suddoth, for a writ of mandamus directed to O.G. Tann, Superintendent of the State Penitentiary. From a judgment denying the writ, relator appeals. Affirmed.
On suggestion of error. Suggestion of error overruled.
Chalmers Potter and Green, Green Jackson, all of Jackson, for appellant.
The court below erred in failing to grant writ of mandamus requested by appellant, for the reason that appellee's duty to issue voucher for emoluments of office was purely ministerial and appellee was under duty to conform with the order of the board of trustees recognizing and allowing legality of appellant's claim.
Chapter 147 of the Laws of 1934; Sec. 5727, Code of 1930.
The Board of Trustees, or Commissioners, recognized the validity of appellant's claim and allowed it. They were the sole authority vested with such power. It was within their discretion to either allow or disallow such claims. By recognizing it as valid and then allowing it, they conferred upon appellant the right to have a warrant issued and paid, regardless of what appellee's ideas might have been as to the legality of the demand.
18 R.C.L. 223, sec. 148; Chickaming Tp. v. Carpenter, 106 U.S. 663, 1 S.Ct. 620, 27 U.S. (L.Ed.) 307; Ex parte Tully, 4 Ark. 220, 38 Am. Dec. 33; McConoughey v. Jackson, 101 Cal. 265, 35 P. 863, 40 A.S.R. 53; Ray v. Wilson, 29 Fla. 342, 10 So. 613, 14 L.R.A. 773; Escambia County v. Board of Pilot Commissioners, 52 Fla. 197, 42 So. 697, 120 A.S.R. 196; Harrington v. Berkshire County, 22 Pick. (Mass.) 263, 33 Am. Dec. 741; People v. Buffalo, 140 N.Y. 300, 35 N.E. 485, 37 A.S.R. 563; 89 Am. Dec. 734; 14 L.R.A. 773; L.R.A. 1916D 325.
Appellee's duties in the case at bar were simply ministerial and the appellant was therefore entitled to mandamus to force appellee to perform this duty.
18 R.C.L. 116; 38 C.J. 767; McGraw v. Winston County, 87 So. 897; Trotter v. Gates, 139 So. 843; Madison County Court v. William Alexander, 1 Miss. (Walker) 524; Carroll v. Board of Police of Tishomingo County, 28 Miss. 38, 48-52; Miller v. White, 133 So. 144.
J.A. Lauderdale, Assistant Attorney-General, for appellee.
Under the facts shown by the record in this case it is not the duty, ministerial or otherwise, of the respondent to issue the "pay voucher" to the petitioner.
Chapter 147, Laws of 1934.
The superintendent has absolutely no authority to sign any pay voucher or any check on the funds of the penitentiary until the account therefor has been allowed by the board of trustees, requisition made therefor on the state treasurer, a warrant issued by the auditor, and the funds deposited in the depository of said institution.
Under the facts shown by this record mandamus will not lie to compel the respondent to issue a pay voucher because appellant does not show a clear legal right in himself to the relief prayed for.
McAfee v. Russell, 29 Miss. 84, 85; Bowlin v. Franklin County, 152 Miss. 534; 18 R.C.L. 225; 18 R.C.L. 227, sec. 151; Section 11 (h), chapter 147, Laws of 1934; State ex rel., Cutts v. Hart, 185 P. 769, 7 A.L.R. 1678; Erion v. Pension Commissioners, 104 N.J. 464; 38 C.J. 767, sec. 406 (5); Whitehurst v. Smith, 155 So. 683.
Mandamus will not lie where petitioner has a plain, adequate and speedy remedy in the ordinary course of law.
McAfee v. Russell, 29 Miss. 84, 97.
Under chapter 145, Code 1930 (section 5717 et seq.), appellant relator was appointed dispatch sergeant for the state penitentiary for a term of one year beginning January 1, 1934. On April 2, 1934, the Legislature repealed chapter 145, Code 1930, and enacted chapter 147, Laws 1934, in lieu thereof. By section 11 of that act the superintendent was authorized to appoint a dispatch sergeant, pursuant to which the superintendent appointed Sam Nunnery on April 7, 1934. Mr. Nunnery immediately qualified and entered upon the performance of the duties of the employment, and appellant relator retired therefrom.
On July 3, 1934, the board of trustees of the penitentiary made an allowance to relator for three hundred ninety dollars as his salary as dispatch sergeant from April 7, 1934, to June 25, 1934, but the superintendent declined to honor the order, and soon thereafter this petition for a writ of mandamus was brought by the relator against the superintendent, and from a judgment denying the writ relator has appealed.
If chapter 147, Laws 1934, is constitutional as respects the position of dispatch sergeant, appellant relator has either no right or title to the employment or to the compensation thereof, or else and at best only a doubtful right and title. Appellant has submitted no argument here that said chapter 147, Laws 1934, is unconstitutional, in whole or in part, but as to his right and title to the employment and the compensation thereof he relies solely on the judgment or order of the board of trustees making the aforesaid allowance. Appellant contends that the board is a quasi judicial body, and that its adjudication that appellant is legally entitled to the employment and to the compensation therefor is of binding authority and is now conclusive, since no effort has been made to review or reverse that adjudication.
The final authority to determine whether or not the Legislature, in enacting a statute, was within its constitutional powers is vested in the judiciary. 12 C.J. 775; 6 R.C.L. 71. The determination of such a question by a board or commission, not being of the judiciary itself, has no final or binding effect. Hence the adjudication by the board of trustees relied on here is ineffectual towards sustaining this petition, and since at most the relator has presented only a doubtful, rather than a clear, legal right, the judgment of the trial court denying the writ must be affirmed.
Affirmed.
ON SUGGESTION OF ERROR.
Our original opinion held that, unless chapter 147, Laws 1934, be unconstitutional, appellant had no right to maintain his petition for mandamus, and called attention to the fact that appellant had submitted no argument that the said chapter is unconstitutional, in whole or in part. Appellant now presents a suggestion of error, and for the first time argues the constitutional question mentioned.
It is a rule of practice in nearly all appellate tribunals, and certainly so in this court, that a point not argued at all is to be taken as waived. See, for instance, Bridges v. State, 154 Miss. 489, 122 So. 533; Rayl v. Thurman, 156 Miss. 8, 125 So. 912. Some of the reasons which form the foundation for this rule are to be found stated in Johnson v. State, 154 Miss. 512, 122 So. 529, and Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745. As a corollary of this rule, the practice is also that this court will not consider, "on a suggestion of error, a new contention, one not assigned or argued on the submission of the case." Eady v. State, 153 Miss. 696, 122 So. 199, 200. In that case the court added that "as a general rule it is no more permissible on appeal to present a case in halves or by piecemeal than it would be on the original trial." See, also, McCaskey Register Co. v. Swor, 154 Miss. 396, 400, 122 So. 489, 753.
Suggestion of error overruled.