Bahnsen v. Buie

Beck, P. J. (After stating the facts.) We are of the opinion that the court erred in refusing a mandamus nisi. It is true that a mandamus absolute had been refused some two months before, upon similar petition and answer filed. That petition and answer and the judgment of the court are attached to this record, having been sent up as a part of the record on a petition filed therefor by the defendants in error. Manifestly it can not be considered a part of the record; it was not introduced .in evidence, and is not a part of the pleadings. Inasmuch as this former petition and answer thereto had never been made a part of the record in the present proceedings, the defendants in error could not avail themselves of the provisions contained in section 6149, par. 1, of the Civil Code, which relates to the subject of procuring additional record by the defendant in error, “who desires more of the evidence, or other parts of the record, or all of the evidence, or all of the record sent up.” The references to the record in the former case in the petition in this' case and in the judge’s order do not authorize this court to hold that there had been a former adjudication, or that that was an estoppel by judgment which would prevent the petitioner from maintaining the present proceedings. And inasmuch as we can not consider copies of the former petition, answer and judgment, there is nothing in the record to show that there has been an adjudication adverse to petitioner upon the issues here involved, or that he is estopped by the judgment in the former case, even though he fails to allege facts showing such a change in the circumstances as would authorize him to maintain a second petition for mandamus. To render the former petition for mandamus, the answer, and the judgment of the court effective as a former adjudication or estoppel conclusive against the petitioner in the present case, it should have been pleaded, or at least introduced in evidence. We are now brought to the consideration of the question as to whether the application for mandamus was sufficient to require the issuance of a mandamus nisi, in answer to which the respondents would have been required to show cause. Section 2 of the act approved August 17, 1918, which is an act to provide for tick eradication throughout the State (Acts 1918,' p. 256), reads as follows: “ Sec. 2. Be it further enacted, that on or before the first day of April, 1919, the ordinary, county commissioners, [17] or officers in charge of the county affairs in each and every county where tick eradication has not been completed shall construct such number of dipping-vats as may be fixed by the State veterinarian, or his authority, and provide the proper chemicals and other materials necessary to be used in the systematic work of tick eradication in such counties, which shall begin on said date or such subsequent date as may be fixed by the State veterinarian, with the approval of the commissioner of agriculture. If the ordinary, county commissioners, or officials in charge of county affairs of any county shall fail, refusé, or neglect to comply with the provisions of this act, on or before the first day of April, 1919, the State veterinarian shall apply to any court of competent jurisdiction for writ of mandamus, or shall institute other legal proceedings as may be necessary and proper to compel such official to comply with the provisions of this act.” The petition in this case by its allegations distinctly and clearly shows that the county commissioners had failed to perform the duty imposed upon them under the plain terms of this statute. The petition says, in substance, that such and such duties were required of the commissioners of roads and revenues of the county, under existing circumstances clearly described, and that the defendants failed, refused, and neglected to perform those duties. The statute points out that mandamus is one remedy to compel the performance on the part of the county authorities charged with the duties enumerated in the section quoted. Under these allegations in the petition it is the duty of the court to issue the mandamus nisi. Possibly, upon the filing of special demurrers, the defendants wouJd have been entitled to more specific information as to the number of vats, etc., required; or by plea and answer they might have shown the court that the facts alleged were not true, or that they would be entitled to more time to raise the money with which to carry out the requirements of the law; or that there had been an adjudication upon a similar petition and the answer thereto; and they might set up this as res adjudicata, or as estoppel, in case there had been no such lapse of time or change in the circumstances as would authorize the petitioner to bring this second application for mandamus. Judgment reversed. All the Justices concur, except Bussell, O. J., dissenting, and Atkinson, J., disqualified.