Opinion
No. 33477.
April 3, 1939. Suggestion of Error Overruled May 1, 1939.
1. COUNTIES.
In order for county to incur indebtedness where there is at the time in the particular fund from which the debt must be paid insufficient money to do so, the qualified electors of the county must by petition authorize the indebtedness (Code 1930, section 5977).
2. COUNTIES.
Action of county board of supervisors which incurred debt for road work, although there was insufficient money in road fund to pay the debt, and delivered warrants and paid out money thereon, as money came into the road fund, violated statute prohibiting county, except on petition of electors, from incurring indebtedness without having sufficient money in the particular fund with which to pay it (Code 1930, sections 5977, 5979).
3. MANDAMUS.
Mandamus is available to enforce only those rights which are legal and complete as such, and is not available to enforce equitable rights.
4. COUNTIES.
Statute prohibiting a county from incurring indebtedness unless county has sufficient money in particular fund involved to pay indebtedness is not violative of constitutional provision vesting in county board of supervisors full jurisdiction over county roads, on ground that application of the statute might in some instances prohibit board from doing any road work, in view of fact that, under the statute, board is authorized to incur debts for work if authorized by majority of electors (Code 1930, sections 5977, 5979; Const. 1890, section 170).
APPEAL from the circuit court of Calhoun county; HON. T.H. McELROY, Judge.
Thos. L. Haman, of Houston, for appellant.
Plaintiff undertook to make proof of practically all matters of issue raised either under the general issue or by pleas. Defendant demurred to the proof introduced by plaintiff at the close of plaintiff's testimony and obtained a peremptory instruction to find for defendants, which action, of course, assumed as true the testimony of plaintiff, drawing with it all such favorable inferences for plaintiff as the jury might have reasonably have drawn.
Lowe v. M. O.R.R. Co., 116 So. 601, 149 Miss. 889; M. O.R.R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Jefferson Standard Life Ins. Co. v. Jeffcoats, 143 So. 842, 164 Miss. 659; Keith v. Y. M.V.R.R. Co., 151 So. 916, 168 Miss. 519; Gravette v. Golden Saw Mill Trust, 154 So. 274, 170 Miss. 15; Columbian Mutual Life Ins. Co. v. Gunn, 163 So. 454, 173 Miss. 897; Stricklin v. Harvey, 179 So. 345; Wheat v. Leche Lines, 179 So. 553.
Section 252 of the 1930 Code, until amended by Chapter 179, Laws 1932, approved February 19, 1932, required merely that a just claim against a county should first be presented to the board of supervisors for allowance, with right of appeal given only in case the board should refuse to allow it.
Chapter 202 Laws of 1932, amending Section 255 of the Code provides that demands against the county, if properly dated and itemized, shall be allowed or rejected. All of the allowances were for objects authorized by law. Only if the board shall refuse to allow a claim, is appeal or suit authorized. These claims were all allowed.
If the purpose of the required dating is solely to furnish the board information as a guide for investigation and evidence to be heard as to delivery or performance, it would seem that the board could investigate or hear evidence independently of such information. The requirement seems to us to be directory and affects only pleading. If a matter of pleading, it follows into any de novo trial and can be waived.
City of Okolona v. Chickasaw County, 157 So. 690, 171 Miss. 624.
Section 5979 provides that no warrant shall be issued or indebtedness incurred by any county unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness, but with the provision that such indebtedness may be incurred upon a petition of a majority of the qualified electors of the county.
Section 5977 requires that counties which have or may hereafter have legal and undisputed outstanding warrants or other legal obligations, and insufficient funds in the treasury to pay them, or any of them, to take same up by the issuance of bonds.
Section 5 of Chapter 235, Laws 1932, provides that no supervisors district may issue bonds in any amount, except to refund outstanding bonds, until May 2, 1934, that is, until two years after the effective date of the act.
Section 11 of the act, as amended by Chapter 47, Laws of 1935, effective October 2, 1935, provides for bonds or special levies by the counties to discharge and retire any legal indebtedness incurred prior to October 1, 1933, and evidenced by open accounts or other obligations of the county outstanding.
By Section 170 of the Constitution, the board of supervisors has full jurisdiction over roads and bridges, to be exercised in accordance with such regulations as the Legislature may prescribe (except as to state highways).
Code of 1930, sec. 6310, 6311 (amended Chapter 221, Laws 1934), 6312, 6313, 6340-6341, 6343, 6381, 6389, 6390, 6392 (amended Chapter 273, Laws 1936), 6394, 6398, 6413 and 6414; Sec. 7, Chap. 24, Special Session Laws of 1931; Chapter 247, Laws of 1934.
The Constitution gives to the board of supervisors full jurisdiction over roads and bridges to be exercised in accordance with such regulations as the Legislature may prescribe, but the responsibility laid upon and power given to the board may not be restricted, abridged or taken away by legislative regulation, or else the Legislature would have power by regulation to annul a very function of government, and destroy a power and responsibility vested by the Constitution.
We think that the Legislature is so limited in its power that it may prescribe only minimum standards to which roads must be kept with consequent expense, and that it may not prescribe maximum standards of construction and maintenance, as power is given only to board of supervisors to determine the necessity of the case.
We think that statutes, such as Section 5979, insofar as it undertakes to prevent the board of supervisors from incurring any indebtedness by the county for construction or maintenance of roads unless there be sufficient cash in the treasury to pay the debt, and such as Section 3 of Chapter 104, Laws of 1932, which undertakes to limit tax levies for road purposes, are restrictive rather than regulatory and undertake to abridge the power and responsibility of the board to construct and maintain roads, while the provision that no warrant shall be issued (if issuance means delivery or release for payment), unless there is money in the treasury to pay it, is regulatory only and merely withholds delivery of the warrant until money for its payment has accumulated in the treasury or been provided by order of the board.
Board v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Seal v. Donnelly, 60 Miss. 658; Monroe County v. Strong, 78 Miss. 565, 29 So. 530; Lang v. Harrison County, 114 Miss. 341, 75 So. 126; State v. Grenada County, 141 Miss. 701, 105 So. 541; Quitman County v. Self, 125 So. 828, 156 Miss. 273; Panola County v. Town of Sardis, 157 So. 579.
The required petition by a majority of the qualified electors of a county on behalf of a county or a supervisors district, seeking to incur an indebtedness for the general maintenance and construction of the roads in a district of the county, could hardly be expected, even if such authority could be delegated to petitioners. The exact amount of indebtedness, as required by the statute, could not be stated, because if the desire was to up-keep and construct the roads according to minimum standards, the expense would be unknown.
The members of the board were under oath to carry on the functions of government committed to their board. They did their duty as required of them. They made their estimates and tax levies, but taxes went uncollected and the revenue therefrom was insufficient with the other revenue to pay the expenses of maintenance and construction, notwithstanding which the board did maintain and construct the roads of the district in question as required, necessarily without paying as the expense was incurred, so that in January, 1932, there was owing therefor an amount in excess of $10,000.
The (budget) law ought not to be so strictly construed as to make it impracticable to operate under it.
Board of Supervisors v. Cranford, 131 Miss. 770, 95 So. 676; Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 288.
Claims are not presented in the order of the date of the incurring of the debt, and no rule of law requires it.
The maintenance and construction of roads and bridges in ordinary course for which the annual levying of taxes is required by laws made mandatory, is a function assumed by the government of the state and imposed on the counties and supervisors districts for which full jurisdiction is given to the board of supervisors. We think that the law imposing this power and responsibility on boards of supervisors is dominant and controlling.
Choctaw County v. Tennison, 134 So. 900.
There was cash sufficient in the treasury in 1931 and January, 1932 to have paid any one of the warrants involved as the allowances were entered, but not sufficient to have paid all of the allowances of those dates in the aggregate. If the orders of allowance were void as to the allowances involved for lack of cash to pay all, then the orders of allowance under which warrants were written and eventually paid in very much larger aggregate amounts, were void, but their payment legalized because in good conscience the holders were entitled to receive and retain payment. How does the necessity for the protection of the interest of the county prevent payment in one case, and justice to the recipient prevent recovery of payment in an identical case. What distinction in matters of conscience and law lies between the two cases. Section 88 of the state constitution requests the Legislature to pass general laws under which private interests shall be provided for and protected. Does this not mean equally provided for and protected in keeping with the requirement of Article XIV of the Amendments to the Federal Constitution that no state shall deny to any person within its jurisdiction the equal protection of the laws. About $9000 in amount of exceeding $10,000 in amount of unpaid allowances existing in January, 1932, all entered under precisely the same circumstances and conditions, have been legally paid because in good conscience the holders were entitled to payment, but certainly no more entitled to payment than the holders of the allowances involved. All of the allowances, both those paid and those which remain unpaid, were made in good faith for things of value furnished to and received and used by the county in good faith, for which the county in good faith expected to pay.
Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209; Town of Crenshaw v. Jackson, 84 So. 912, 122 Miss. 711.
Enabling laws rather than restrictive laws should have liberal construction.
Jackson v. Gordon, 163 So. 502.
Failure of the order of allowance to cite the law does not vitiate the claim, nor break down the correctness of its presentment. If the judgment of allowance is merely incomplete in that detail, the claim is left as a pending one which, however, on account of a judgment of allowance otherwise complete, may not be appealed or sued on. The board by its own fault in refusing to enter an order complete in every detail could thus take the property of claimant for public use without due compensation, if claimant is left without remedy. If suit for mandamus against the board to have it complete in this detail its judgment rendered in favor of original claimants, why cannot this be reached in a suit for mandamus to have the board provide means of paying the allowances, and why not, whether mandamus to have the judgments completed in this detail was or was not the proper remedy, where the proof shows that claimants were entitled to proper and complete orders of allowance.
The writ is not a prerogative writ, but one of right. We have no alternative writ. The judgment of the court shall be framed to meet the circumstances of the case (Section 2351 of Code of 1930). This remedy should be applied rationally, is quoted and used by the court in Chattus v. Coahoma County, 73 Miss. 352, 19 So. 107. The issuance of the writ is largely controlled by equitable principals. The court in Honea v. Board of Supervisors, 63 Miss. 171, ruling that warrants may only be issued in payment of claims previously adjudicated by the board and found to be valid charges against the county, directed that the lower court should refuse to let the writ issue as to those warrants issued without previous adjudication, but should grant the writ for payment as to those named in the petition which had been legally issued.
Newton County Bank v. Perry County, 135 Miss. 129, 99 So. 513; Carroll v. Tishomingo County, 28 Miss. 38; Klein v. Bd. of Suprs., Smith County, 54 Miss. 254; Klein v. Bd. of Suprs., Warren County, 51 Miss. 878; Beck v. Allen, 58 Miss. 143; Board of Police v. Attala County, 9 S. M. 77; Arthur v. Adams, 49 Miss. 404; Madison County v. City of Canton, 158 So. 149, 171 Miss. 547; George County v. Bufkin, 117 Miss. 844, 78 So. 781; Robinson v. Itawamba County, 107 Miss. 352, 65 So. 461.
W.J. Evans, of Calhoun City, amicus curiae.
As to the various claims upon which this suit is based, we submit that each and every order of the board of supervisors attempting to allow these claims is absolutely void and of no effect. And, of course, if they are judgments at all they are separate and distinct judgments made out to defendant parties, and it is our contention that the appellant does not have a valid assignment of a judgment as the assignments attempt to only assign these accounts and warrants, which is nothing if there is a judgment, and it is practically conceded by counsel that some of these orders are void and if that is true appellant is certainly not entitled to the extraordinary remedy of a writ of mandamus for the reason that he must stand or fall on the proposition that all of these claims are valid and he is counting them as one proposition, and if he makes this claim then certainly he could not stand if any one of the alleged judgments was void. And on the other hand if he is attempting to stand on each and every claim as a separate and distinct judgment of itself, then certainly he would not have any right to a writ of mandamus.
Haskins v. Bd. of Suprs., 51 Miss. 409; Ohlson v. Durfrey, 33 So. 973.
And further as to these accounts and orders of the board it merely requires a casual glance at the various alleged claims and orders of the board attempting to prove the same to see that they fail absolutely to comply with the mandatory terms of Section 255 of the Code of 1930 and amendments thereto.
None of these orders refer to either the section or the page of the law under which they could be allowed, for we take it that the board could not arbitrarily allow an account and just merely put in a section, say Section 100 of the Code of 1930, when that section was not applicable at all. Of course, under the plain provision of Section 255 of the Code of 1930 it requires both the proper section and page of the law, and the elimination of either would render the account void, and under Section 246, Code of 1930, all contracts made in violation of any of the provisions of the law are null and void.
Smith v. Covington County, 158 So. 919.
Prior to 1918 the various counties of the state were heavily indebted and it was almost impossible for them to employ labor and purchase materials and supplies without paying enormous prices for the same, for the reason that in most counties parties dealing with the counties realized they would have to discount their papers. The Legislature at that time passed an act requiring the counties to go on a cash basis and pay up all outstanding legal obligations by bonds and not to issue any more warrants when there was not sufficient money in the treasury to pay the same; and in 1920, the Legislature realized that they should add another provision to that law so as to prohibit them from incurring any indebtedness, otherwise the board could go ahead and incur the indebtedness but not issue the warrant, and these wholesome statutes, as we see it, have been a great help to the taxpayers of the state, and when construed with the various other sections of the code dealing with emergency, right to borrow money, etc., there is plenty of latitude for a board to always do all legitimate and necessary work on roads or other matters that are really necessary to be done.
We certainly think under Section 170 of the Constitution that the Legislature cannot take the jurisdiction away from the board of supervisors but certainly they can regulate under that section, and if they can regulate in one instance they can certainly regulate an expenditure of money.
Of course, counsel could not successfully contend that any of these items involved in this suit were covered by the emergency statute. On this question we desire to cite one authority only, as follows: Attala County v. Mississippi Tractor Equipment Co., 139 So. 628. This case gives a complete and thorough definition of what is meant by emergency.
Patterson Patterson, of Calhoun City, for appellee.
Even through the mass of figures, accounts, orders of the board and bookkeepers opinions, and even after a careful study of the splendid brief and argument of the excellent counsel for appellant, presented in this case, it clearly appears that when the indebtedness on which this suit is predicated was incurred by the board of supervisors and when the respective allowances were made by them there was not sufficient money in the particular fund from which said allowances were made and upon which warrants were attempted to be drawn, to pay such warrants and indebtedness, as provided by Section 5979 of Code of 1930. Like many individuals and corporations, this political subdivision of Calhoun County was already faced with a heavy indebtedness at the beginning of the year 1930. Through the years immediately following there was not a sufficient sum of money coming into the public treasury and to the proper funds of the public treasury to meet the indebtedness of the district or the apparently necessary additional expenditures and accumulating indebtedness of the district, and they (appellees) and the sellers of county supplies and materials took a chance, vainly hoping and perhaps sincerely believing that the near future would take care of the troubles and indebtednesses, a fond hope and belief that leg thousands of individuals and private corporations into bankruptcy and ruin, and to prevent this happening to counties and political subdivisions thereof, Section 5979, Code of 1930, was wisely brought forward and retained as a part of the laws governing board of supervisors and the governing authorities of municipalities in this state in making contracts and creating indebtednesses to be paid by the taxpayers whom they seek to obligate.
To avoid the effect of this statute, learned counsel for appellant argues that boards of supervisors are by the Constitution of the state, given exclusive jurisdiction over roads and bridges in their respective counties, and that such authority cannot be taken away or impaired by legislative act, so long as such boards act without fraud and in good faith. This court has repeatedly held that the legislature may prescribe the methods for exercising this constitutional provision by boards of supervisors, and that they (such boards) are limited in their powers by statute.
Bd. of Suprs., DeSoto County v. Jones, 60 So. 655, 103 Miss. 602; Adams v. First Natl. Bk., 60 So. 770, 103 Miss. 744; Bd. of Suprs., Greene County v. Snellgrove, 60 So. 1023, 103 Miss. 898; Universal Motor Co. v. Newton County, 131 So. 827, 158 Miss. 873, 130 So. 791; State v. Bd. of Suprs., Grenada County, 105 So. 541, 141 Miss. 701.
If it be urged that appellant is a purchaser or assignee of the indebtedness in question and a loss that ought not to be is about to be sustained by him, a sufficient reply thereto is "that parties dealing with boards of supervisors and their acts, must take notice of its powers, and cannot acquire rights beyond their authorized powers."
DeSoto County v. Stranahan, Harris Oatis, 131 So. 640, 159 Miss. 23.
Another insuperable barrier to appellant's recovery in this case is that it is shown by the testimony of the then supervisor of District 4 that the supervisor employed the labor and purchased the supplies and materials sought to be recovered for in this suit, without any previous order of the board, and without the proper advertisement therefor. This question was recently before this court in the case of Lee County v. James, 174 So. 76, and has been theretofore before this court, and it has been consistently held that recovery cannot be had on such attempted contracts, even though made in good faith by all parties concerned.
Argued orally by Thos. L. Haman, for appellant.
Appellant, as assignee of a large number of undelivered warrants ordered by the Board of Supervisors of Calhoun County, payable out of the road funds of District No. 4 of said county, sought by mandamus to compel the Board to deliver the warrants and to make levies of taxes sufficient to pay the same. The orders for these warrants were made at divers times from October 6, 1931, to December 30, 1935.
Proceeds from the tax levies of 1930 together with other revenues received up to October 1, 1931, were insufficient to pay the allowances made by the Board for road expenses of said district up to the latter date, so that on said date there were outstanding warrants with insufficient funds to pay them.
Instead of proceeding under the law to pay these previous obligations so far as they were valid, in the manner, as required by and under Section 5977, Code of 1930, and to draw a line by impounding the funds received after that date to be applied to current subsequent expenses, and keeping the current subsequent debts and expenses within the funds received, the Board adopted the policy of going ahead in the incurring of debts for road work without regard to whether there was sufficient money in the particular fund at the time to pay these debts, and would order warrants for these claims as they became due but without money then on hand to pay them; and as money would come into the road fund the oldest among the long series of warrants would be delivered and the money on hand paid out thereon, keeping closely up with the money as it came in; so that throughout the entire period of time above mentioned there were always warrants which had been ordered far in excess of any money that might happen at any time to be on hand, and debts were constantly being incurred in like excess. The ordered warrants here sued on were for debts so incurred. To quote from a well framed sentence in appellant's reply brief: "Under the system followed, old allowances were being paid from proceeds received for current fiscal years, and as the treasury was thus depleted, allowances of the current year went unpaid to become old warrants, paid generally out of a subsequent year's receipts."
This was a credit system, in the thinnest sort of disguise, and was squarely in conflict both with the letter and the purpose of Section 5979, Code of 1930, which reads as follows: "No warrant shall be issued or indebtedness incurred by any county by any county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness. Provided, however, that such indebtedness may be incurred upon petition of a majority of the qualified electors of the county or municipality. Any such petition shall clearly state the exact amount of the indebtedness sought to be incurred and the definite purpose for which the expenditure is to be made, and the original petition shall be entered together with the names of the signers, upon the minutes of the board of supervisors or municipal council. When a county or municipal board has incurred such an indebtedness, it shall be the duty of said board to make a special levy upon the taxable property of said county or municipality for the retirement of said indebtedness, and said special levy shall be made at the time, next succeeding the expenditure, when other levies are fixed. But nothing in this section shall prevent a municipality or a county from borrowing money in anticipation of taxes as now provided by law."
It will be seen that by that statute there are two express prohibitions: (1) That no indebtedness shall be incurred by any county unless there is at the time sufficient money in the particular fund from which an allowance must be made to pay such indebtedness, and (2) that no warrant shall be issued unless there is at the time of its issuance sufficient money in the particular fund to pay such warrant. To incur such an indebtedness when there is presently in the fund insufficient money to pay it, the qualified electors by petition must authorize it.
We do not need in this case to pursue the feature of the issuance of warrants. It is sufficiently shown by the evidence and is in effect admitted by appellant that under the course of conduct pursued by the Board there was not at the time the several indebtednesses were incurred, and for which the warrants in question were ordered, sufficient money actually in the particular fund out of which to pay them. The incurring of such debts was expressly prohibited, therefore, and being expressly prohibited was illegal, and being illegal could not become the foundation for any action in mandamus for their payment. Mandamus is available to enforce only those rights which are legal and are complete as such, not those which are equitable — as appellant contends that in any event his are. Hook v. Bank, 134 Miss. 185, 193, 98 So. 594; American Book Co. v. Vandiver, 181 Miss. 518, 527, 178 So. 598. To uphold the contention of appellant here would be to say that the Board and those dealing with them could at their option work a repeal of the statute so far as its practical aspects are concerned; which of course cannot be sanctioned.
Appellant argues that inasmuch as Section 170, Constitution 1890, vests in the Board of Supervisors full jurisdiction over county roads, ferries, and bridges, and although the section further provides that this jurisdiction shall be exercised in accordance with such regulations as the legislature may prescribe, the latter was without power to enact a statute such as Section 5979, Code of 1930, because its application would in some instances prohibit the Board from doing any road work, throughout a substantial period of time, although such work is essential to the proper performance of the duties of the Board in respect to road maintenance. It is necessary only to call attention to the fact that under the challenged section the Board can still go ahead and incur the necessary debts for the work if and when authorized by a majority of the electors.
Affirmed.