Hardee v. Gibbs

Citations

• 50 Miss. 802

Syllabus

<p>1. Pleading and Practice — Mandamus. — The petition for the writ of mandamus is an ex parte application to the court, and constitutes no part of the pleadings. It should present a prima facie right on the part of the relator and of duty and obligation to perform the act demanded on the part of the defendant. It should be verified by affidavit, otherwise the alternate writ should not be granted. It should also appear that a demand had been made, and a refusal or neglect to comply.</p> <p>2. Same — Rule at Common Law. — -At common law a writ of error would not lie to the judgment of an inferior court awarding or refusing an alternate mandamus, or in awarding or refusing a’peremptory mandamus. But the practice is otherwise in this country, and the awarding or refusing the writ is not a matter of mere discretion.</p> <p>3. Same — Right of Revivor, against Officer. — A. suit by or against an officer may be revived by or against the successor. Such is regarded as a proceeding against the officer, and not against an individual. The responsibility results from the office and not from any individual responsibility of the person occupying it. Such a rule is essential to the administration of justice.</p> <p>4. Approval of Laws — Power of the Governor — Act of April 25,1873. — In the approval of laws the governor is a component part of the legislature, and unless the constitution allows further time, he must exercise his power of approval before the two houses adjourn, or it will be void. Our constitution makes no such provision; therefore the approval of the act of April 25, 1873, by the governor, after the adjournment of the legislature, is a nullity, and the act is void.</p>