
    Board of Police of Yalabusha County vs. Murdock Ray, use of Davidson M. Rayburn.
    Where upon an application to the circuit court of Yalabusha county, for a mandamus, to compel,the board of police of that county, to sign a bill of exceptions, with the wiew of taking up a case by appeal to that court, the defendants answered that no appeal had been prayed by the party seeking the mandamus, either at the term when the judgment, from which the appeal was sought, was rendered, or the next succeeding one ; and upon this answer the plaintiff moved for a peremptory mandamus ; it was held, that the truth of the answer was admitted by the motion, and showed that the application was made after the period limited by statute, which says that the appeal “ shall be taken at the term at which the judgment is rendered, or at the next succeeding regular term, and not after; ” and could not therefore be granted.
    In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.
    At the February term, 1847, of the circuit court of Yalabusha county, the following motion was made:
    
      “ The State of Mississippi.
    
    
      u Whereas, at the August term of the police court of Yalabu-sha county, in the state aforesaid, an application was pending before said court, wherein Murdock Ray, for the use and benefit of Davidson M. Rayburn, was complainant, and certain proceedings were thereupon had by and before the said court, holden by the said board of police for the county and state aforesaid, at the court-house of the said county, in the town of Coffee-ville, on Monday, Tuesday, and Wednesday, the 17th, 18th, and 19th days of August, A. D. 1846, before Hugh G. Crozier, president, and Lott O. Humphrey, Duncan 0. Reasons, John Johnson and James M. Holmes, members of the said board of police, present and presiding in the said court, an exemplification whereof is herewith filed, marked ‘ A/ and prayed to be taken as a part of this motion. Whereupon the said complainant, by his counsel, excepted to the said opinion, order and judgment of the said board of police, as set forth in said exemplification, and asked said board of police to grant him an appeal therefrom to this honorable court by bill of exceptions, according to the statute in such cases made and provided, and then and there tendered to the said board of police his said bill of exceptions in that behalf, which is herewith filed, marked ‘ B,’ and, made'a part of this motion, and prayed that the same might be signed and sealed by the said Hugh G. Crozier and others, members of the said board of police as aforesaid; and made a part of the record in said cause, that said bill of exceptions, herewith filed as aforesaid, was taken by the said board of police, (Lott 0. Humphrey excepted,) who had subsequent to the commencement, of the said term of the said court, and before the said appeal by bill of exceptions as aforesaid was asked, and said bill of exceptions tendered, resigned his seat in said court as a member of said board of police, and against whom no rule is prayed, and by them carefully examined and corrected, did acknowledge to be a full and true statement of the proceedings had upon the trial of the said cause, and which your relator avers does truly and fully set forth the proceedings upon said trial of the said cause; but that the said defendants, not regarding their duty in that behalf, but intending to injure and oppress your relator, obstinately refused, and do still refuse, to grant him his said appeal by bill of exceptions as aforesaid, and to sign and seal the said bill of exceptions for that purpose, according to the statute in that case made and provided.
    “.Your relator therefore, and inasmuch as he has no other remedy, moves this honorable court for a rule upon the said Hugh G. Crozier, Duncan 0. Reasons, John Johnson and James M. Holmes, members of the said board of police, to appear in this court, on Thursday, the 4th day.of March, A. D. 1847, being the tenth day of the present term; and show cause, if any they can, why a mandamus nisi shall not be granted and issued, commanding them to grant the said appeal by bill of exceptions as aforesaid, and to sign and seal said bill of exceptions for that purpose, or to show good cause to the contrary.”
    It was verified by the affidavit of Rayburn, and accompanied b.y the affidavits of two other persons of its truth.
    It is not necessary to set out a statement of the cause of action and proceedings before the board, which accompanied the petition. ,
    The board of police filed the following answer :
    “And the said defendants, by their attorney, come and show cause that a writ of mandamus should not issue against them; first, because the said relator had, admitting the matters and things in the said rule to be true, another and complete remedy by which he could have had his cause removed into this honorable court by writ of certiorari, according to the form of the statute in such case made and provided. They further show, that, at the time they pronounced the said judgment at the August term, 1846, the .said board of police were then and there willing to grant an appeal to the said relator, (and would have done so,) upon the motion of the said relator or his counsel, if he had made the same at the August term, 1846, or at the February term, 1847, of said board of police, if said motion had been made; and the said members of the said board of police here say, that no motion for an appeal was made, or an appeal prayed, and they here further state that this honorable court cannot now adjudicate the matters and things aforesaid, as an appeal now cannot be granted in the premises.
    “ These defendants further answer to the said rule, and say that the said bill of exceptions may contain all the evidence introduced on the part of the relator; but they say there were certain facts and evidence known to all members of the said board of police, not formerly read or pronounced to the board, which evidence appeared on the books of the treasurer of said county, and the purport of which was and is as follows :
    
      
      “ The board of police have, upon the treasurer’s books, evidence in their possession, that a portion of the sum claimed had actually been paid to the plaintiff in the case, and that they had evidence that the whole amount had been paid, as they believe.
    “And the said defendants further say, that when it was ascertained that the said bill of exceptions could not be agreed upon by the respective parties, the said board of police, then and there, at the August term, 1846, offered to grant the said relator an appeal to the next term of the circuit court of said county, and to waive the said bill of exceptions, and to give the said relator leave to try his case de novo in the circuit court of said county as aforesaid, all of which they then and there offered to enter of record in due form, but the said relator refused to take said appeal in the manner aforesaid; and they further show, that, at the February term, 1847, of the said board, they were willing to grant an appeal upon the terms aforesaid, and would have done so on the motion of the said relator, but that the said relator failed to make such application; and having fully answered, pray that the said rule may be discharged.”
    The following admission was made, viz :
    “ In this case it is admitted that a bill of exceptions was presented in due time to the board of police, and they requested to sign the same; the counsel presenting the same then and there saying, that he wished to take the case up to the circuit court by bill of exceptions; in no other manner did he ask or pray an appeal.”
    Upon this state of case, the court ordered a peremptory mandamus, and the defendants sued out this writ of error.
    Fisher, for plaintiff in error,
    Filed a written argument, and cited 2 Chit, PL 111; 2 Leigh, Rep. 165; How. & Hutch. 453.
    
      A. H. Davidson, and A. C. Leigh, for defendants in error,
    Also argued the case in writing, and cited 3 Black. Com. 110; 2 Leigh, Rep. 169; 7 Porter, Rep. 54; lb. 47; 6 Johns. Rep. 249; People v. Judges of Westchester, 4 Cow. 73; How. &• Hutch. 453, sec. 41; 4 Bac. Abr. 518.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an application to the circuit court of Yalabusha county, made at its February term, 1847, for a mandamus to compel the board of police of that county, to sign a bill of exceptions, with a view to bring up a case by appeal to the circuit court. The judgment of the board of police was rendered at the August term, 1846.

The answer of the defendants states, “ that no motion for an appeal was made, nor any appeal prayed for at the said August term, 1846, or at the February term, 1847, of the said board of police.” The circuit court directed a mandamus to issue.

The statute regulating appeals from judgments of the board of police, directs that “such appeal shall be taken during the term of the board at which the judgment was rendered, or at the next succeeding regular term thereof, and not after.” Hutch. Code, 712.

It is insisted here, that the judgment of the circuit court was erroneous; 1st, because the .applicant had another plain and adequate remedy; and 2d, because the application for “an appeal by bill of exceptions came too late.”

In the case of The Board of Police of Attala Co. v. Grant, 9 S. & M. 90, this court said “ A mandamus is the appropriate remedy to compel public functionaries, or tribunals, to perform some duty required by law, where the party has no other remedy. But the right or duty must be certain; it will not lie if it is not. Hence the return must state all necessary facts, so that the court may give judgment. The court cannot enter into an inquiry to ascertain the facts, and settle unsettled matters; it is not competent to decide on disputed facts. The facts are to be shown by the return, or by a judicial determination in an action for a false return; and when so ascertained, a mandamus may issue.”

The statute gives the appeal by bills of exception or certiorari. Hutch. Code, 712. Here, then, the party might have adopted either mode of proceeding. But throwing that out of view, was his application for the appeal by bill of exceptions made in proper time? The answer says expressly, it was not. We have seen that the answer is to be taken as true, until the contrary is shown by a judgment in an action for a false return. By moving for a peremptory mandamus, the truth of the answer was admitted. 25 Wend. 680; 9 S. & M. 89. In Ross v. Lane, 3 S. & M. 695, the court said, “ A mandamus will not be awarded to enforce the performance of an act which is contrary to law.” The statute expressly directs that the appeal by bill of exceptions “shall be taken at the time at which the judgment was rendered, or at the next succeeding regular term, and not after.” If the answer is to be regarded as true, the application was made after the time limited by the statute, and we could not, consistently with the law, direct a mandamus to issue to compel the doing of that which the law says shall not be done.

The judgment of the court below was therefore erroneous, and' must be reversed.  