Summary
In Jackson Equipment Service Co. et al. v. Dunlop et al., 172 Miss. 752, 160 So. 734, this court held that, on a collateral attack, nothing is presumed in favor of a court of limited jurisdiction, but the record must show on its face that such court had jurisdiction.
Summary of this case from Tullos v. Bd. of Sup. of Smith Co.Opinion
No. 31632.
April 8, 1935. Suggestion of Error Overruled May 20, 1935.
1. COUNTIES.
Order of board of supervisors which stated that seller's claim for goods was a legally valid and binding obligation on county, lawfully incurred, held insufficient to prove compliance with law regulating the making of county contracts so as to require finding by circuit court that contract was valid (Laws 1928, Ex. Sess., chapter 61, section 1; Code 1930, section 6064).
2. COURTS.
In a collateral attack on a judgment of a court of limited jurisdiction, record must show on its face that court had jurisdiction, since presumption of jurisdiction does not obtain.
3. COUNTIES.
Board of supervisors, while acting judicially, is a court of special and limited jurisdiction so as to require record of case on appeal to affirmatively show that board, when it allowed a claim against the county, had jurisdiction.
4. MANDAMUS.
Order of board of supervisors, which stated that seller's claim for goods was a legally valid and binding obligation, lawfully incurred, but did not disclose facts showing that the law regulating making of county contracts had been complied with held not conclusive on issue whether contract was legal so as to require issuance of writ of mandamus to compel payment of claim (Laws 1928, Ex. Sess., chapter 61, section 1; Code 1930, section 6064).
5. COUNTIES.
Parties contracting with a county must see that contracts are legal.
6. MANDAMUS.
In proceeding for mandamus to compel payment of claim for goods sold county which was ordered paid by the board of county supervisors, where order failed to disclose facts showing that contract of purchase was valid, Supreme Court could not presume that board of supervisors had complied with law regulating purchases by counties (Laws 1928, Ex. Sess., chapter 61, section 1; Code 1930, section 6064).
APPEAL from the circuit court of Webster county.
HON. JNO. F. ALLEN, Judge.
Petition for mandamus by the Jackson Equipment Service Company and others against W.C. Dunlop and others. From an adverse judgment, petitioners appeal. Affirmed.
L. Barrett Jones, Chambers Trenholm, and Niles Moseley, all of Jackson, and Brunini Hirsch, of Vicksburg, for appellants.
This is a proceeding for mandamus based on a judgment of the board of supervisors and all of the defenses heretofore raised constitute a collateral attack and cannot be availed of.
Section 170, article 6, "Judiciary," of the Constitution.
The judgments of the board of supervisors are valid and binding until reversed in the manner and mode prescribed by law.
Section 253, Code of 1930; Arthur v. Adam Speed, 49 Miss. 404; County of Yalobusha v. Carbry, 3 S. M. 529; Attala County v. Grant, 9 S. M. 77; Carroll v. Tishomingo County, 28 Miss. 38; Beaman v. Leake County, 42 Miss. 237; Jefferson County v. Arrighi, 51 Miss. 667; Warren County v. Klein, 51 Miss. 807; Taylor v. Marion County, 51 Miss. 731; Polk v. Tunica County, 52 Miss. 422; Howe v. State, 53 Miss. 57; Jefferson County v. Arrighi, 54 Miss. 668; Klein v. Smith County, 54 Miss. 254; Honea v. Monroe County, 63 Miss. 171; State v. Banks, 66 Miss. 431, 6 So. 184; Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210; Clay County v. Chickasaw County, 76 Miss. 418, 24 So. 975; Marion v. Waylard, 77 Miss. 343, 27 So. 619; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Simpson County v. Buckley, 85 Miss. 713, 38 So. 104; Robinson v. Itawamba County, 107 Miss. 352, 65 So. 461; Danis v. Lamar County, 107 Miss. 827, 66 So. 210; George County v. Bufkin, 117 Miss. 844, 78 So. 781.
The order of the board of supervisors allowing a judgment against the county is a judgment of a court created for that purpose, and such judgment is valid until reversed by an appellate court.
Arthur v. Adam Speed, 49 Miss. 404; George County v. Bufkin, 117 Miss. 844, 78 So. 781; Madison County v. City of Canton, 158 So. 149.
If the judgments hereinbefore set out cannot be collaterally attacked, then petitioners are entitled to their writ of mandamus.
Section 255, Code of 1930; Carroll v. Tishomingo County, 28 Miss. 38; Beaman v. Leake County, 42 Miss. 237; Howe v. State, 53 Miss. 57.
That the judgment of the board cannot be collaterally attacked is recognized in the case of Warren County v. Klein, 51 Miss. 807.
Jefferson County v. Arrighi, 51 Miss. 677; Board of Police v. Grant, 9 S. M. 90; Hinton v. Perry County, 84 Miss. 536; Wright v. Railroad, 101 Miss. 470, 58 So. 332; Borroum v. Purdy, 131 Miss. 778, 95 So. 677; Newton Bank v. Perry County, 135 Miss. 129, 99 So. 513; Choctaw County v. Tennyson, 161 Miss. 66, 134 So. 900.
This honorable court has been presented with situations where petitions for mandamus have been filed based upon judgments of the boards of supervisors. Further, this court has in these situations denied the writ because of the invalidity of the aforesaid judgments, but in all of these cases it is perfectly apparent that the sole reason for such decisions lay in the fact that the judgment did not recite the necessary jurisdictional facts.
American Oil Co. v. Bishop, 163 Miss. 249, 141 So. 271; Winston County v. Adams, 164 Miss. 162, 144 So. 476; Magee v. Simpson, 168 Miss. 318, 150 So. 753; Price v. Winston County, 157 So. 909.
In the absence of fraud or any irregularity apparent on the record, a judgment cannot be collaterally attacked by proof that, while the same was rendered on the day court adjourned, it was entered by the clerk several days thereafter on a blank page of the minute book next preceding the order of final adjournment and the judge's signature.
Childress v. Carley, 92 Miss. 571, 46 So. 164; Martin v. Miller, 103 Miss. 754, 60 So. 772; A. V. Ry. v. Grigsby E. Thomas, 86 Miss. 40, 38 So. 770; Cotton v. Harlan, 124 Miss. 691, 87 So. 152.
A judgment of a court having jurisdiction of the subject-matter and the parties is res judicata of all questions which were necessarily involved, and which could have been presented, and not merely questions actually presented by the pleadings.
Dean v. Board of Supervisors of De Soto County, 135 Miss. 268, 99 So. 563; Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Eastman-Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106.
Being in all things regular, the order "allowing a claim against the county is a judgment in favor of the claimant against the county, which, like any other judgment, cannot be collaterally questioned and is final and conclusive."
It has been frequently declared in general terms that all defenses relating to the validity of the claim on which a judgment against a county or municipality is based are concluded by the judgment, and that the validity of the claim cannot be litigated in mandamus proceedings to enforce the judgment.
Ralls County Court v. U.S., 105 U.S. 733, 26 L.Ed. 1220; Hill v. Scotland County Court, 32 Fed. 716; Fleming v. Trowsdale, 29 C.C.A. 106, 54 U.S. App. 574, 85 Fed. 189; Riverside County v. Thompson, 122 Fed. 860; Kinney v. Eastern Trust Bkg. Co., 59 C.C.A. 586, 123 Fed. 297; Clews v. Lee County, 2 Woods 474, Fed. Cas. No. 2892; Cairo v. Campbell, 116 Ill. 305, 5 N.E. 114, 8 N.E. 688; Stevens v. Miller, 3 Kan. App. 192, 43 P. 439; Territory ex rel. Custer County v. Yellowstone County, 6 Mont. 147, 9 P. 918; Stenberg v. State, 48 Neb. 299, 67 N.W. 190; Sherman v. Langham, 92 Tex. 13, 39 L.R.A. 358, 9 L.R.A. (N.S.), 40 S.W. 961; State ex rel. Carpenter v. Beloit, 20 Wis. 77; State ex rel. Wilson v. Rainey, 74 Mo. 229; Bear v. Brunswick County, 122 N.C. 434, 65 Am. St. Rep. 711, 29 S.E. 719; Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120; Davenport v. Lord, 9 Wall. 409, 19 L.Ed. 704; U.S. v. Orleans, 98 U.S. 381, 25 L.Ed. 225; Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U.S. 716, 28 L.Ed. 574, 4 Sup. Ct. Rep. 648; Hicks v. Cleveland, 45 C.C.A. 429, 106 Fed. 459; Rock Island County v. U.S., 4 Wall. 435, 18 L.Ed. 419; U.S. ex rel. Masslich v. Saunders, 59 C.C.A. 394, 124 Fed. 124; Chicago v. Sansum, 87 Ill. 182; New Orleans v. U.S., 1 C.C.A. 148, 2 U.S. App. 125, 49 Fed. 40; Helena v. U.S., 43 C.C.A. 429, 104 Fed. 113; Edmundson v. Independent School District, 98 Iowa, 639, 60 Am. St. Rep. 224, 67 N.W. 671; Lyons v. Cooledge, 89 Ill. 529; Cloud v. Lawrence, 12 Wn. 163, 40 P. 741; State ex rel. Abernethy v. Moss, 13 Wn. 42, 42 P. 622, 43 P. 373; People ex rel. Reynolds v. Rio Grande County, 11 Colo. App. 124, 52 P. 748; State ex rel. Ledger Pub. Co. v. Gloyd, 14 Wn. 5, 44 P. 103; Johnson v. Sacramento County, 65 Cal. 481, 4 P. 463.
The evidence fails to justify defenses.
Du Bose v. Board of Supervisors, 131 Miss. 770, 95 So. 676.
The testimony shows there was no register or book of any kind in the office wherein a notation could be made that the proof was filed, nor was there any definite place in the office for the keeping of such proofs. In other words, the whole thing was simply a "hit or miss" affair insofar as the officer of the board of supervisors was concerned.
The proof could have been filed with the clerk and misplaced. It could still be in the office, right at the present time without the knowledge of the clerk.
A. V. Ry. v. Thomas, 86 Miss. 40.
The board did not attempt to show by any record at all that there were insufficient funds. A.L. Ford, of Ackerman, and McKeigney Latham, of Eupora, for appellees.
If the orders of the board of supervisors of Webster county, allowing the claims here under review, on collateral attack, are valid judgments, then the judgment of the lower court should be reversed with judgment here for appellants. But the contention of appellees is that the orders or judgments of the board of supervisors, allowing appellants' claims, are void, and that, being void, they confer no rights, and are, because void, subject to collateral attack.
Howe v. State, 53 Miss. 47.
The orders of the board of supervisors involved in this suit do not show the jurisdictional facts. Nothing is presumed on collateral attack in favor of a court of limited jurisdiction, but its record must show on its face that it had jurisdiction.
Adams v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 660; Henderson Malpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Arthur v. Adam Speed, 49 Miss. 404.
It is the first and one of the most important of all the duties of courts to see to it, before proceeding in any case, that the court has jurisdiction both of the subject-matter and of the parties.
Brotherhood of Ry. Trainmen v. Agnew, 170 Miss. 614, 155 So. 205; 15 C.J. 827, 828; Broom v. Jeff Davis County, 158 So. 344.
Publication of notice is not sufficient. The filing of the proof of the publication is strictly necessary.
Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 446; Merchants Bank v. Scott County, 165 Miss. 91, 145 So. 908; Peoples Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192; Austin-Western Road Machinery Co. v. Webster County, 154 So. 723; Oliver v. Baird, 90 Miss. 718, 44 So. 35.
The proof of publication on file is the process of the court returned, and is the legal evidence that the board of supervisors has acquired jurisdiction in the matter.
If publication for bids and the filing of the proof of the publication were necessary to the validity of the alleged contracts of the board of supervisors of Webster county in the matters at bar, the orders of the board allowing the claims were void, because the evidence introduced before the court below shows not only that the proof of publication could not be found in the instant matters, but that no publication was made.
Section 1, chapter 157, Laws of 1928; Code of 1930, section 6386.
We respectfully submit that where it is contended that claims are allowable without publication for bids, because no single purchase exceeds the sum of two hundred fifty dollars, it is necessary that the record show that the material, equipment or supplies were purchased under the section. But more than this, it is also essential to the validity of the order or judgment of the board of supervisors, acting under this section, to show that the material, equipment or supplies were purchased by, or under the direction of the board of supervisors; and the order allowing the claim should recite the jurisdictional facts so that it shall appear in the minutes of the board of supervisors that the material, equipment or supplies were purchased by, or under the direction of the board of supervisors.
103 Miss. 744, 60 So. 660; Section 1, chapter 157, Laws of 1928; Section 6386, Code of 1930.
The appellants, Allis-Chalmers Manufacturing Company, Caterpillar Tractor Company, Ryan Manufacturing Corporation, Morrisey-Easton Tractor Company, Jackson Equipment Service Company, Mississippi Tractor Equipment Company, and Mississippi Road Supply Company, filed a petition for mandamus against W.C. Dunlop, J.S. Hood, J.O. Peeples, W.F. Brewer, and J.P. Wright, members of the board of supervisors of Webster county, and W.A. Peeples, chancery clerk, and ex officio clerk of the board of supervisors of said county, alleging that the board of supervisors is charged by law with the duty of providing funds for the payment of the county's obligations. They further allege that they are creditors of said Webster county for goods, wares, merchandise, machinery, and equipment sold and delivered to said county, and that the claims of said petitioners have heretofore been duly presented to the board of supervisors of said county and have been filed, docketed, considered, and allowed, as shown by orders of the board of supervisors entered at the December, 1931, regular term of said board, copies of which were attached as exhibits to the petition.
The claim of the Allis-Chalmers Manufacturing Company so allowed was as follows:
For the use of District No. 1 ..................... $1,900.00 For the use of District No. 3 ..................... 2,400.00 For the use of District No. 4 ..................... 2,350.00 For the use of District No. 5 ..................... 2,000.00 __________ Total ......................................... $8,560.00 The claim of the Caterpillar Tractor Company so allowed was as follows: For the use of District No. 1 ..................... $1,129.70 For the use of District No. 4 ..................... 1,616.55 For the use of District No. 5 ..................... 1,120.10 _________ Total ......................................... $3,866.35 The claim of the Ryan Manufacturing Corporation so allowed was as follows: For the use of District No. 1 ..................... $4,789.69 For the use of District No. 4 ..................... 825.00 For the use of District No. 5 ..................... 766.75 _________ Total ......................................... $6,381.44 The claim of the Morrisey-Easton Tractor Company so allowed was as follows: For the use of District No. 1 .................... $3,998.63 For the use of District No. 3 .................... 3,960.10 For the use of District No. 4 .................... 4,255.14 For the use of District No. 5 .................... 3,000.33 __________ Total ........................................ $15,214.20 It was alleged that the county was entitled to a credit upon the above amount by reason of the assignment by Morrisey-Easton Tractor Company of the sum of eight thousand six hundred fifty dollars to the Allis-Chalmers Manufacturing Company, so that the balance due Morrisey-Easton Tractor Company is six thousand five hundred sixty-four dollars and twenty cents.The claim of the Jackson Equipment Service Company so allowed was as follows:
For the use of District No. 1 ..................... $5,333.82 For the use of District No. 3 ..................... 1,492.75 For the use of District No. 4 ..................... 878.51 For the use of District No. 5 ..................... 911.87 _________ Total ......................................... $8,616.95 The claim of the Mississippi Tractor Equipment so allowed was as follows: For the use of District No. 1 ..................... $2,781.26 The claim of the Mississippi Road Supply Company so allowed was as follows: For the use of District No. 5 ..................... $5,844.24 The total amount claimed by all the petitioners is forty-two thousand seven hundred four dollars and forty-four cents.It was further alleged that at this time there is no money in the county treasury against which warrants must be drawn for the payment of said claims, and that it is the duty of the board of supervisors to issue serial bonds to provide funds to pay said claims, or to levy and collect a tax therefor, and that petitioners have respectfully requested the payment of said claims, but that the defendants have wholly failed, neglected, and refused to pay same, wherefore a writ of mandamus was prayed.
The several claims referred to as being allowed and entered were substantially the same except as to the parties and amounts. One order will be spread out here for the purpose of this opinion, same reading as follows:
"The above claim having been considered and allowed at the November, 1931, meeting of this board, but it now appearing that there were certain omissions in the order allowing same, and said claim having been duly filed and docketed, and now coming on for hearing at a regular meeting of the board, and it appearing that said claim is in all respects a legally valid and binding obligation, lawfully incurred, and now due and owing, and that the same should be allowed, it is therefore; Ordered and adjudged by the board of supervisors of Webster county, Mississippi, in regular session that the claim of Jackson Equipment Service Company against District No. 1, of Webster county, Mississippi, for a balance due on road machinery purchased under section 1, chapter 61, page 101, Extra Session Laws of Mississippi 1928, and for road supplies purchased under section 1, chapter 206, page 274, Laws of Mississippi 1914 (section 6064, chapter 154, page 2497, Code of Mississippi 1930) in the sum of five thousand three hundred thirty-three dollars and eighty-two cents, and the same is hereby ratified, approved and allowed as a legally valid and binding obligation now due and payable out of the road fund of said district, and the clerk will issue his warrant accordingly when permitted by law."
The appellees demurred to the petition on the following grounds: (1) That the petition states no cause of action; (2) that the exhibits to the petition are insufficient in law to constitute a valid judgment or reason why the extraordinary writ of mandamus should issue, because said exhibits failed to show that the machinery referred to was purchased after legal advertisement, or purchased by orders of the supervisors entered on the minutes of said board, or that the same did not exceed the budget for that year; (3) that the petition did not allege, and the exhibits do not show, that the county contracted to buy said machinery; (4) that the petitioners did not allege, nor the exhibits show, that the machinery was purchased by Webster county upon competitive bids, or purchased under a case of emergency; (5) that the petition does not allege and the exhibits fail to show that at the time said machinery was purchased the said county then had the particular fund from which the allowance for payment thereof must be made in its treasury, or that said indebtedness was incurred upon a petition of a majority of the qualified electors of Webster county; (6) that the petition and exhibits affirmatively show that at the time the supervisors allowed the claims there were no funds in the treasury of Webster county by which the claims could be paid, and the orders of the supervisors were, therefore, void and of no effect; (7) that the petition does not allege that the claims sued on were for purchases made by Webster county in any legal manner, or that same were included in the budget of the county.
This demurrer was, by the circuit judge who tried the cause, overruled. The appellees then plead the general issue, giving notice thereunder that they would offer evidence to prove that there were no legal contracts existing between the parties on the minutes of the board of supervisors, and no proof of publication, and no provision in the county's budget for the purchase of road machinery. They further set up that there were no funds in the county treasury to pay said claims at the time the alleged orders of the supervisors were made.
On the hearing, the clerk of the board of supervisors was introduced as a witness, and he testified that there was no proof of publication on file in his office, and nothing in the records of his office to show that such proof of publication was ever made. He also testified that the budget of the county for said several years when said purchases were made did not include said purchases, and that there were no funds in the treasury to pay said claims at the time the alleged warrants were issued.
The court below decided in favor of the county and against the petitioners, appellants.
The appellants did not prove that there was any publication of notice filed prior to the making of the contracts, or that there were any funds in the county treasury for the payment of said claims when the orders of the board of supervisors were passed, or that there was any provision in the county budget authorizing such expenditure of money for this purpose. The appellants stand upon the order of the board of supervisors, and contend that same is a valid judgment, and that the claims were legal, valid, and binding obligations now due and owing and should be allowed. They allege that the board of supervisors is a court of general jurisdiction; that all presumptions should be in favor of the validity of its judgments; and that they cannot be attacked collaterally.
It will be seen from the statement of the case above set forth that the petition for mandamus did not show that the steps necessary to the making of a valid contract had been taken. The order of the board of supervisors set out does not show or recite the jurisdictional facts. The statements in the order are as easily referable to a legal conclusion as to a finding of fact, and are not sufficient to show that the law was complied with in the making of any contract, and, therefore, there is no showing of a valid contract.
Nothing is presumed, on a collateral attack, in favor of a court of limited jurisdiction, but the record must show on its face that said court had jurisdiction. Adams v. First Nat. Bank, 103 Miss. 744, 60 So. 770; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716. The argument that the board of supervisors in this respect is a court of general jurisdiction cannot be accepted in the face of the numerous decisions of this court from the beginning of the state government holding that a board of supervisors, while acting judicially, is a court of special and limited jurisdiction, and not a court of general jurisdiction. It has always held that in making contracts the necessary conditions must be shown by the record to have existed before the judgment will be valid or the contract legal. If it was a new question, we might be inclined to hold that the board of supervisors in allowing claims against the county was a court of general jurisdiction. But, the Legislature, throughout the history of this state, has imposed conditions upon the jurisdiction of boards of supervisors. Both the statutes and the Constitution have been re-enacted several times since the court has held boards of supervisors to be courts of limited jurisdiction. Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Merchants' Bank Trust Co. v. Scott County, 165 Miss. 91, 145 So. 908; People's Bank v. Attala County, 156 Miss. 560, 126 So. 192; Austin-Western Road Machinery Co. v. Webster County, 170 Miss. 601, 154 So. 723; Broom v. Board of Supervisors of Jefferson Davis County (Miss.), 158 So. 344. In the case of Merchants' Bank Trust Co. v. Scott County, supra, the order recited that legal notice had been given, but the proof of publication showed only two weeks' publications, whereas the law requires three weeks, and the court held that such publication was insufficient, and that legal advertisement had not been made.
It is clear from what we have said, and from these cases cited, that the court below was correct in its holding.
It is incumbent upon persons or corporations making contracts with a county to see that they are legal contracts.
It is urged here that it should be presumed that the board of supervisors has done what the law requires it to do. However much force there may be in this argument, considered independently of the decisions of this court, in view of the history of the court for a long series of years, and of the statutes which have been re-enacted, after court decisions construing them, in such form as to incorporate said decisions, we must hold that the judgment of the court below is correct, and it is affirmed.
Affirmed.