Opinion
No. 31438.
December 10, 1934.
1. COUNTIES.
In action against county to recover for use and benefit of state accounting department expense incurred in auditing county books, order of board of supervisors for payment to state accounting department held void for failure to set forth statute under which allowance was made, and therefore would furnish no basis for res judicata plea; and clerk of board was without authority to supply defect (Code 1930, section 255; Laws 1932, chapter 202; Code 1930, sections 3748, 3753).
2. COMPROMISE AND SETTLEMENT.
Entry of void order by board of supervisors for payment to state accounting department and acceptance of warrant thereunder held not to constitute estoppel to claim further payments for expense incurred in auditing county books, where neither order nor warrant recited that payment was in full, and therefore acceptance of warrant did not constitute settlement of controversy.
APPEAL from the Circuit Court of Winston County.
Lotterhos Travis, of Jackson, for appellant.
Appellant was carrying out the duties imposed upon him by the laws of 1924, chapter 325, and specifically section 3753 of the Code of 1930. At the conclusion of the audit the appellant determined the cost thereof under the provisions of the Laws of 1924, chapter 325, and particularly section 3748 of the Code of 1930, which said cost so thus determined was the sum of three thousand five hundred eighty-four dollars and twenty-five cents.
The order of the board of supervisors authorizing the payment involved in this controversy was void.
A casual reference to said order discloses that the same is fatally defective for the reason that it does not disclose the purpose for which the allowance was made, or on what account it was made, and for the further reason that the original order of the board did not show the page and particular section of the statute under which the said allowance was made.
Section 255 of the Code of 1930, as amended by chapter 202 of the Laws of 1932.
This statute must be meticulously followed in order for a board to make a valid allowance.
Gully v. Bridges, 156 So. 511; Magee v. Simpson, 168 Miss. 318, 150 So. 753; Beck v. Allen, 58 Miss. 143; Newton County Bank v. Perry County, 135 Miss. 129, 99 So. 513; Campbell v. Humphreys County, 133 Miss. 410, 97 So. 722.
A plea of res adjudicata cannot be predicated on a void order.
34 C.J., sec. 1310, p. 899; Freeman on Judgments (3 Ed.), sec. 117; Lake v. Perry, 95 Miss. 550, 49 So. 569; Reinecke v. Reinecke, 105 Miss. 798, 63 So. 215; Newton County Bank v. Perry County, 135 Miss. 129, 99 So. 513.
The facts of this case are not sufficient to raise an estoppel against the appellant, acting in his official capacity for the use and benefit of the state of Mississippi and in favor of the county.
Jackson County v. Neville, 131 Miss. 599, 95 So. 626; 21 C.J., sec. 190, p. 1185; 10 R.C.L., sec. 31, p. 704; 21 C.J., sec. 190, p. 1187.
Rodgers Prisock, of Louisville, for appellee.
Appellant's claims that one of the issues to be determined by this court was whether or not the order of the board of supervisors rendered at the April, 1932, meeting was void. It is not so much a question as to whether or not the order was void or valid as it is as to whether or not the state auditor can take advantage at this time of claiming said order to be void after having accepted the benefits derived therefrom and without having offered said benefits into court.
It is very clear that the order aforesaid, whether valid or not, with reference to paying said claim, is a refusal to pay an unjust and unreasonable greater sum claimed than was allowed. The board having refused to pay the greater claim made by the auditing department by paying a smaller sum left the state auditing department with three courses to pursue: (a) Appeal under section 61 of the Code of 1930, (b) Appeal to the Governor for a decision under section 3748 of the Code of 1930, or (c) to have given notice as required by section 3749 at the top of page 1667 of the Code of 1930 by giving notice thirty days before suit is brought.
The plaintiff having accepted the sum of two hundred twenty-one dollars and twenty-five cents, and acquiesced in said order paying same without appealing, said refusal became final.
George County v. Bufkin, 78 So. 781.
Having received the benefits of said order entered by said board of supervisors at the April term, 1932, the state auditing department is estopped to say that said order is void, especially when it claims damages in its declaration to the prejudice of Winston county and being estoppel to claim that said order is void and having failed to appeal before the next term of court as required by section 61 of the Code of 1930, which was construed to mean the next term after the appeal was perfected; or in other words, immediately after the adjournment of the board allowing thirty days for signing said bill of exceptions in the case of board of supervisors of Marshall County v. Stevens, 134 So. 142.
This is an appeal from a judgment denying the appellant a recovery for the use and benefit of the accounting department of the state of Mississippi of the expense incurred by him under section 3753, Code of 1930, in auditing the books of the county. This expense was apportioned to the county, and a demand for the payment thereof was made under section 3748, Code of 1930. Partial payments were made by the county on the bill so rendered, and failing to pay the balance thereof resulted in the institution of this suit.
A special plea of res judicata was filed by the appellee, to which the appellant replied, and a demurrer by the appellee to this replication was sustained. On the appellant's declining to plead further, the cause was dismissed. It appears from the special plea, and the replication thereto, that in April, 1932, the appellee's board of supervisors entered on its minutes the following order: "Ordered that the following accounts be paid out of the common county fund: — Warrant No. 420, state Accounting Department, Joe S. Price, Chief Inspector, two hundred twenty-one dollars and twenty-five cents." This order does not refer to the page and section of the law under which the allowance was made, as required by section 255, Code 1930, which was brought forward into chapter 202, Laws 1932, but the chancery clerk, after the minutes were signed and approved and the board of supervisors had adjourned, noted on the order the words "Code 1930, section 3748." No appeal was taken from this order, and a warrant was issued thereunder, accepted by the appellant, and cashed. This warrant reads as follows:
"Pay to state Accounting Dept. or order Two Hundred Twenty-one Dollars and Twenty-five cents, being the amount allowed by the Board of Supervisors at the above term for audit Joe S. Price, Chief Inspector (on Acct.) out of the Com. Co. Fund and for so doing this shall be your Warrant.
"Given under my hand and seal of office this 7 day of April, 1932.
"L.W. Adams, Clerk."
Leaving out of view and expressing no opinion on the sufficiency of this order of the board of supervisors to set forth the purpose for which the warrant was ordered to be issued, its failure to set forth the statute under which the allowance was made renders it void, Magee v. Simpson, 168 Miss. 318, 150 So. 753; Gully, State Tax Collector, v. Bridges (Miss.), 156 So. 511, and the clerk of the board of supervisors was without authority to supply this defect therein, Campbell v. Humphreys County, 133 Miss. 410, 97 So. 722. The order therefor furnishes no basis for a plea of res judicata. But, it is said by counsel for the appellee that, if the order is void, the entry thereof and the acceptance of the warrant thereunder constitutes, if not res judicata, an estoppel against the appellant to claim that any further payments are due on the bill rendered by him. Neither the order nor the warrant recites that the one was made and the other issued in full of the amount claimed by the appellant, and therefore the acceptance of the warrant does not constitute a settlement of the controversy.
Reversed and remanded.