State ex rel. McMain v. Town of Pollock

[596] The opinion of the court was delivered by Nicholls, C. J. In his petition for a mandamus relator had alleged and maintained that Act No. 130 of 1900 conflicted with Article 49 of the Constitution of 1898; that by Act No. 16 of the Acts of 1884, the-Legislature conferred upon the people of the towns of the State plenary power over the question of retailing spiritous liquors and a subsequent Legislature had no power to pass Act No. 130 of 1900 to-indirectly repeal a general law by the enactment of a special local law. That Section 10 of the Acts of 1888 provide,d how high schools throughout the State should be established. It provided in substance that the-local School Boards should pass ordinances to that effect and submit same to the State Board of Education, and that no high shool should be opened without its sanction. It provided that suitable buildings, etc., had to be donated to the school as a prerequisite to its establishment by the State Board and none 'of these things had been done. “The mere fact that the decision of a case in one of the inferior courts depended upon. whether a certain law of the State be constitutional or not, does not vest in the Supreme Court appellate jurisdiction over it. If the matter in dispute fell within -our general appellate jurisdiction, that particular-issue would be taken up and disposed of as would any other involved in the suit, but if not we could only take cognizance of an appeal in the-cause, should the lower court have pronounced against the constitutionality of the act. In the case at bar, the District Court sustained the constitutionality of the statute, we have, therefore, to inquire-whether the subject-matter of the suit was such as to give this court jurisdiction independently of this particular question; if not, we could not reverse the judgment. Allegations as to the amount of the matter-in dispute avail nothing, if they be made solely for the purpose of obtaining jurisdiction. The claims advanced must be serious, not fictitious. In the case before us the relator claimed twenty-five -hundred dollars damages against the mayor and treasurer of the town of Pollock for refusing to disobey a law of the State, and to determine for themselves that the law was unconstitutional. We do not think this’ demand was seriously advanced, particularly in a mandamus proceeding. We do not think relators had for a moment an idea of recovering damages to the amount demanded, even if any at all. Relator does not' allege that had he been granted the license he sought, the profits of his* [597] business for the year would have been twenty-five hundred dollars. It is true that Article 1934 of the Civil Code declares that the general rule is that “damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived,” and that this same rule with some modification applies to damages in other ease3, and that therefore when a person claims twenty-five hundred dollara damages the demand carries with it an implied assertion that that sum was the amount of gain which the party had or would be deprived of, but we are of the opinion that in a matter of this kind, we should deal with something more than implied .allegations. The allegations should be specific and direct; besides this, the damages which the relator sets up are not damages actually accrued, but for assumed, prospective and contingent profits. We are of the opinion that we have no jurisdiction of this cause, raiione materiae, and the appeal is hereby dismissed.