Summary
In Gully v. Bridges, 170 Miss. 891, 156 So. 511, it was held: "If bill has some merits and construed as a whole shows good cause of action, it will stand as against general demurrer."
Summary of this case from Triplett v. BridgeforthOpinion
No. 31242.
September 24, 1934. Suggestion of Error Overruled October 22, 1934.
1. DISTRICT AND PROSECUTING ATTORNEYS.
Board of supervisors is not authorized to pay traveling expenses of its attorney in performance of his duties except those while representing board before State Tax Commission (Code 1930, sections 272, 3178).
2. COUNTIES.
County warrant issued under order of board of supervisors that does not specify statute under which it is allowed is void (Code 1930, section 255).
3. EQUITY.
If bill has some merit, and considered as a whole shows good cause of action, it will stand as against general demurrer.
4. DISTRICT AND PROSECUTING ATTORNEYS.
Bill against board of supervisors and its attorney, alleging illegal payment of attorney's traveling expenses, held not subject to general demurrer (Code 1930, sections 259, 272, 3178).
APPEAL from Chancery Court of Lamar County.
J.H. Currie and J.C. Floyd, both of Meridian, for appellant.
There can be no doubt that if the averments of the original bill are true, and they must be taken as true for the purposes of this demurrer, that the defendant, L.C. Bridges, is liable for the money which he unlawfully received.
Howe v. State, 53 Miss. 57.
Even if this were not true, if the bill is good as to any of the defendants, the general demurrer must be overruled as to all.
Section 305, Griffith's Chancery Practice; Wherry v. Latimer, 103 Miss. 529, 60 So. 563.
Section 3178 of the Mississippi Code of 1930 provides the only semblance of authority we have been able to find for the payment of the traveling expenses of the attorney for the board of supervisors. This statute has to do with a hearing before the tax commission when there is dissatisfaction over changes made in the assessment rolls by the tax commission, and provides for a hearing before the commission to be attended by the members of the board, its attorney, the tax assessor, and the chancery clerk, and provides that "the compensation and expenses, if any, shall be paid by the board of supervisors of the county affected.
We do not find that this court has passed on the specific question heretofore, but it appears to us that the question as a matter of principle was settled in the case of Miller v. Tucker, 142 Miss. 146, 105 So. 774, where this court refused to sanction the allowance of the traveling expenses of the county health officer. We can see no distinction between the question there and the one here presented.
J.A. Covington, Jr., of Meridian, for appellees.
The sole question involved in this appeal appears to be whether or not the bill in itself is sufficient to charge the defendants or whether or not the bill on its face states a good cause of action against the defendants.
There is a vast difference between a statement of the facts relied on and a conclusion of the pleader concerning the facts.
Griffith Mississippi Chancery Practice, 166.
When a material fact necessary to a recovery is omitted from a bill it does not state a cause of action.
Griffith's Mississippi Chancery Practice, 167, 179.
It is not sufficient for the bill to simply state that the allowances were illegal and unauthorized, constituted a misappropriation of funds and that the purposes for which the funds were allowed were unlawful and illegal. These are mere conclusions of the pleader and there is no allegation of the actual facts to support these conclusions.
The bill does not say as a fact that the county attorney received the money without incurring any expenses at all.
There are many allowances not specifically mentioned in the statutes which are legal and proper out of the very nature of things.
Miller v. Tucker, 105 So. 774.
Appellant, the state tax collector, filed the bill in this case in the chancery court of Lamar county against appellees, L.C. Bridges, attorney for the board of supervisors for that county, and the members of the board of supervisors of the county and the sureties on their official bonds, the United States Fidelity Guaranty Company, charging that the board of supervisors unlawfully allowed, during the years 1929 and 1930, to the county attorney the sum of three hundred seventy-eight dollars and fifty-five cents, expenses incurred by him in performing the duties of his office, and seeking to hold appellees jointly and severally liable therefor. Appellees interposed a general demurrer to the bill, which was sustained by the court, and, appellant declining to amend, a final decree was entered dismissing the bill, from which decree appellant prosecutes this appeal.
The bill alleged that the board of supervisors during the years 1929 and 1930 allowed and paid its attorney Bridges out of the general funds of the county threehundred seventy-eight dollars and fifty-five cents, the aggregate amount of traveling expenses incurred by him in the performance of his duties as such attorney in making eight trips to Jackson, one to Hattiesburg, and one to Meridian, and that there was no authority of law for such allowances; therefore they were illegal and appellant was entitled to recover them back for the county, plus interest and the statutory commission of twenty per cent.
Appellees defended upon the ground that the allowances were authorized by law, and whether authorized or not appellant's bill failed to properly charge the necessary facts to constitute liability. We will consider those questions in the order stated.
Section 272 of the Code of 1930 authorizes the board of supervisors in its discretion to employ counsel by the year at an annual salary not to exceed six hundred dollars, or to employ counsel in all civil cases in which the county is interested, and in criminal cases against a county officer for malfeasance or dereliction of duty in office, when, by the criminal conduct of the officer, the county may be liable to be affected pecuniarily, to conduct the proceedings, instead of the district attorney, or in conjunction with him, and to pay such counsel, out of the county treasury, reasonable compensation for his services.
Appellee Bridges was employed under the first clause of the statute, that is, by the year at an annual salary of six hundred dollars. There is no provision in that statute, nor in any other, authorizing the board of supervisors to pay the traveling expenses of its attorney in the performance of his duties, except those while representing the board before the state tax commission provided for in section 3178, Code of 1930.
Section 255, Code of 1930, provides, among other things, that when any claim against the county is allowed by the board, in whole or in part, the order making such allowance shall specify the page and particular section of the law under which such allowance is made, and on what account. Construing that statute, our court has held that a warrant issued under an order of the board that does not specify the statute under which it is allowed is void. Beck v. Allen, 58 Miss. 143; Land v. Allen, 65 Miss. 455, 4 So. 117; Newton County Bank v. Perry County, 135 Miss. 129, 99 So. 513.
The only statute authorizing the board of supervisors to allow its county attorney an expense account incurred in the performance of his duties is section 3178, Code of 1930. That section authorizes the payment of such an account incurred in attending the equalization meetings of the state tax commission held at the capitol. There is no provision of law for the state tax commission to hold such a meeting elsewhere.
There is no merit in the appellees' contention that the bill fails to properly charge liability as against the general demurrer, because its averments set out not facts but conclusions from facts not stated. Certainly, the county attorney's expense account incurred in going to Meridian and Hattiesburg could not have been in the performance of his duties before the state tax commission in representing his county, because under the law the state tax commission could not have held such a meeting at Meridian or Hattiesburg. The state capitol was the only place it could be held. The bill, therefore, was not entirely without merit. The rule is that if there be sufficient equity on the face of the bill to require an investigation of the facts, in other words if the bill has some merit, and considered as a whole it shows a good cause of action, it will stand as against a general demurrer. Griffith's Chancery Practice, sections 170, 291, 298, and 310, and cases in the footnotes.
The bill charges that all the allowances were unauthorized by law. An itemized expense account of the county attorney was made part of the bill. As above stated, two of those items were for expenses incurred in trips to Hattiesburg and Meridian. Those expenses were unauthorized because, as shown, the state tax commission could not meet at either of those places to perform the duties required of it by section 3178.
Section 259, Code of 1930, provides that if a board of supervisors shall appropriate money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum, etc. The appropriation involved was to a purpose not authorized by law, unless the expense account for the trips to Jackson was incurred by the county attorney in the performance of his duties under section 3178 of the Code.
Reversed and remanded.