Opinion
No. 35063.
November 16, 1942. Suggestion of Error Overruled December 14, 1942.
1. COUNTIES.
Where corruption was not charged, State Auditor could recover from members of county board of supervisors and their bondsmen on account of allegedly illegal appropriations of money, only if the appropriations challenged were made to an object not authorized by law (Laws 1936, chaps. 143, 308; Code 1930, sec. 259).
2. COUNTIES.
Where issuance of county refunding bonds by board of supervisors was authorized by statute and board of supervisors were authorized to appropriate money for the payment of expenses incurred in issuing refunding bonds, appropriation of money was for an "object authorized by law" within rule that where no corruption is charged, recovery may be had on account of allegedly illegal appropriations only if made to an object not authorized by law, and no liability existed for appropriations made to pay expenses of issuing refunding bonds although appropriations may have exceeded the amount authorized, or were forbidden by the Constitution (Laws 1936, chaps. 143, 308; Code 1930, sec. 259; Const. secs. 96, 100).
APPEAL from chancery court of Kemper county, HON. T.P. GUYTON, Chancellor.
Creekmore Creekmore, of Jackson, for appellant.
Members of boards of supervisors and their bondsmen are liable for appropriations to objects not authorized by law.
Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Brown v. Reeves, 129 Miss. 755, 92 So. 825; Walton v. Colmer, 169 Miss. 182, 147 So. 331; Code of 1930, Secs. 197, 257, 258, 259.
Compare Lincoln County v. Green, 111 Miss. 32, 71 So. 171; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251.
The allowances to R.S. Majure were unlawful.
The board had no authority to pay Majure on a quantum meruit basis.
Groton Bridge Co. v. Warren County, 80 Miss. 214, 31 So. 711; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Amite County v. Mills, 138 Miss. 222, 102 So. 465; Fitch v. Upshaw, 180 Miss. 298, 177 So. 57.
The allowances to Majure were prohibited by Sections 96 and 100 of the Constitution. Insofar as the total allowances made by the board exceeded those allowable under the contract with Majure, the same were made in direct violation of Section 96 and Section 100 of the Constitution, and were appropriations to objects not authorized by law, for which the board members and their bondsmen are liable.
Clark v. Miller, 142 Miss. 123, 105 So. 502; Miller v. Tucker, 142 Miss. 146, 105 So. 744; Moore v. Walley, 152 Miss. 539, 120 So. 197; Clark Co. v. Miller, 154 Miss. 233, 122 So. 475; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; State, for use of Wimberly v. White, 171 Miss. 663, 157 So. 472; Constitution of 1890, Secs. 96, 100.
The allowances to Majure and to Spinks McCully to the extent that the same exceeded one percent of the bonds refunded were appropriations to objects not authorized by law.
Lee v. Hancock County, 181 Miss. 847, 178 So. 790; Laws of 1936, Ch. 308.
If there be conflict between Chapter 308, Laws of 1936, and the General Refunding Act of 1934, the 1936 statute must control.
Madison County v. Stewart, 74 Miss. 160, 20 So. 857; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; White v. Lowry, 162 Miss. 751, 139 So. 874; Greaves v. Hinds Co., 166 Miss. 89, 145 So. 900; Gully v. Lumbermen's Mutual Cas. Co., 176 Miss. 388, 168 So. 609; Life Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47; Dunn Const. Co. v. Craig, 191 Miss. 682, 2 So.2d 166.
The allowances were not authorized by the General Refunding Act of 1934.
Boards of supervisors exercise limited jurisdiction and have no implied power and must find the same either in the Constitution or statutes.
Howe v. State, 53 Miss. 57; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Greene County v. Snellgrove, 103 Miss. 898, 60 So. 1023; State v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541; DeSoto County v. Stranahan, 159 Miss. 23, 131 So. 640; Lee County v. James, 178 Miss. 554, 174 So. 76; Green v. Board of Supervisors, 172 Miss. 573, 161 So. 139; Constitution of 1890, Sec. 170.
Boards of supervisors must strictly follow the statutory provisions relating to the issuance of bonds.
Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321; DeSoto County v. Stranahan, supra.
No statute authorizes the board of supervisors to employ fiscal agents to effect the exchange of refunding bonds.
Code of 1930, Secs. 249, 5982-5986; Code of 1930, Secs. 247-249, as amended by Ch. 198 and Ch. 204 of the Laws of 1932; Laws of 1934, Ch. 142; Laws of 1934, Ch. 143, Sec. 9; Laws of 1932, Ch. 229, as amended by Ch. 234, Laws of 1932.
The allowance of brokerage fees resulted in an exchange of the refunding bonds for less than par in violation of the General Refunding Act.
Smith v. State, 99 Miss. 859, 56 So. 179; Laws of 1934, Ch. 143, Sec. 5.
Jacobson, Snow Covington, of Meridian, and Spinks McCully, of DeKalb, for appellees.
The board members are not liable unless the expenditures were to objects not authorized by law.
Paxton v. Baum, 59 Miss. 531; Paxton v. Arthur, 60 Miss. 832; Bell v. McKinney, 63 Miss. 187; State, to Use of Lincoln County, v. Green, 111 Miss. 32, 71 So. 171; Weissinger v. Davis, 112 Miss. 625, 73 So. 617; Pegram v. State, 121 Miss. 564, 83 So. 741; McNulty v. Vickery, 126 Miss. 341, 88 So. 718; Brown v. Reeves, 129 Miss. 755; 92 So. 825; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Reese v. Isola State Bank, 140 Miss. 355, 105 So. 636; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Smith v. Miller (Miss.), 115 So. 900; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Walton v. Colmer, 169 Miss. 182, 147 So. 331, 148 So. 635; Gully v. McClellan, 170 Miss. 405, 153 So. 524; Hughes v. Gully, 170 Miss. 425, 153 So. 528; Gully v. Bew, 170 Miss. 427, 154 So. 284; Gully v. Bew (Miss.), 154 So. 288; Harper v. Gully (Miss.), 154 So. 288; Gully v. Diamond, 170 Miss. 422, 154 So. 289; Gully v. Bew, 170 Miss. 427, 154 So. 721; McBride v. Gully (Miss.), 154 So. 887; Haley v. Gully (Miss.), 155 So. 175; Gully v. Bradford (Miss.), 155 So. 172; Gully v. Wilson (Miss.), 155 So. 169; Dixon v. Gully, 170 Miss. 438, 155 So. 184; Gully v. Bridges, 170 Miss. 891, 156 So. 511; Gully v. Thomas, 171 Miss. 749, 158 So. 465; Stokes v. Newell, 174 Miss. 629, 165 So. 542; State v. Forbes, 179 Miss. 1, 174 So. 67; Miss. Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281; Dewitt v. Thompson (Miss.), 7 So.2d 529; Code of 1930, Sec. 259; 22 R.C.L. 487; 15 C.J. 478 (132).
These expenditures were to objects authorized by law.
Dixon v. Greene County, 76 Miss. 794, 25 So. 665; Lamar County v. Tally Mayson, 116 Miss. 588, 77 So. 299; Peets v. Martin, 135 Miss. 720, 101 So. 78; Walters v. Walters, 180 Miss. 268, 177 So. 507; New Farley National Bank v. Montgomery County, 203 Ala. 654, 84 So. 815; Laws of 1934, ch. 143; Laws of 1936, ch. 308; 20 C.J.S. 1032 (198).
The expenditures were made under mandatory provisions of law, superior to ordinary statutory limitations.
City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771; Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900; Tucker Printing Co. v. Board, 171 Miss. 608, 158 So. 336; Board v. State ex rel. Knox, Attorney General, 144 Miss. 704, 111 So. 143; State ex rel. Attorney General v. Board of Stone County, 131 Miss. 639, 95 So. 683; Laws of 1934, Ch. 143.
It is not alleged that this board did not act in good faith. The law presumes that it did and the answer avers that it did. It is, therefore, respectfully submitted that the appropriations made were to objects authorized by law, where the board had general jurisdiction of the subject matter, with power and discretion to adjudge.
Argued orally by Rufus Creekmore, for appellant, and by J.A. Covington, Jr., for appellee.
The appellees were members of the board of supervisors of Kemper County for the years 1936-40, inclusive; and this is a suit by the appellant to recover from them, and the sureties on their official bonds, alleged illegal appropriations of money made by them from the county treasury. The case was tried on bill, answer, and proof, resulting in a decree dismissing the bill of complaint.
The record discloses that in 1936, the board of supervisors of Kemper County made an order, under Chapter 143, Laws of 1936, providing for the refunding of certain of the county's bonds, and employed R.S. Majure, an attorney at law, to assume full charge of the refunding operations for which he was to receive as compensation one percent of the amount of bonds so refunded. Majure proceeded to discharge this contract, prepared the necessary orders for the issuance of the bonds which were adopted and spread on the minutes of the board, obtained the validation of the proposed bonds, paid a number of expenses incident to their issuance, including the purchase of lithographic forms therefor, and nothing remained to be done except the signing of the bonds by the proper officers, and their exchange, which Majure had promised to negotiate with the holders of the old bonds. At this state of the proceedings, Majure advised the board that he would be unable to continue with his contract unless his compensation was increased. This the board declined to do, and, acting under the advice of the attorney general, settled with him for the work done and expenses incurred by him. The board then employed Spinks McCully, attorneys at law, to complete the issuance of the bonds and their exchange for the old ones, which they proceeded to do, receiving as compensation therefor one and one-quarter per cent of the amount of the bonds.
The theory on which the bill of complaint is predicated is that the appellees' authority to employ and compensate these attorneys is conferred by Chapter 308, Laws of 1936, and is limited therein to one per cent of the amount of the bonds issued. This is denied by the appellees, and it will not be necessary for us to determine this feature of the case. The recovery sought is the difference between the aggregate of the amount paid to Majure and Spinks McCully and one per cent of the amount of the bonds issued, which difference is, and is so stated in the bill of complaint to be, $2,307.90.
Corruption not being charged, the appellant can recover if, but not unless, the appropriations here challenged were made "to an object not authorized by law." Section 259, Code 1930; Paxton v. Baum, 59 Miss. 531. The issuance of these bonds being authorized by Chap. 143, Laws of 1936, is an object authorized by law, jurisdiction of which is conferred by that chapter on boards of supervisors; and since such boards are authorized to appropriate money for the payment of the expenses incurred in issuing bonds contemplated by that chapter, Causey, State Auditor, v. T.E. Jones et al., 193 Miss. 495, 10 So.2d 356; City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771, no liability here arises, although the appropriations may have exceeded the amount authorized, Paxton v. Baum, supra, the forthright and clearcut opinion in which has not been improved on in any of the opinions rendered in the many subsequent cases following it.
But the appellant says that the release of Majure from his obligation to exchange the new bonds for the old violated Sections 96 and 100 of the Constitution; consequently the payments made to him also violate those sections and are recoverable from the appellees, and we will assume for the purpose of the argument that these sections of the Constitution were here violated. Nevertheless, since the appellees were authorized to appropriate money for the payment of the expense of the issuance of the bonds, no liability can here arise under Section 259, Code 1930, although the particular appropriation may have been unauthorized, Paxton v. Baum, supra, or forbidden. National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251. In the second of these cases, the effect of violations of these sections of the Constitution by public officers when appropriating public money to objects authorized by law was considered and determined, and although Section 259, Code 1930, was not there involved, what was there said as to the effect of these sections of the Constitution on the liability of public officers for appropriating public money is pertinent and, in the light of Paxton v. Baum, controlling here.
Affirmed.