Opinion
No. 34034.
January 15, 1940. Suggestion of Error Overruled February 12, 1940.
1. COUNTIES.
Lincoln county funding bonds were not subject to attack on ground that board of supervisors sought to issue county-wide bonds for obligations appearing to be in large part the debts of several separate road districts, where it did not appear that during time obligations were incurred public roads in county were being maintained under any separate district system (Code 1930, sec. 5977).
2. COUNTIES.
Lincoln county funding bonds were not subject to attack on ground that because order of board of supervisors recited that there were outstanding unpaid valid and undisputed accounts and other obligations against county, and that there were insufficient funds to pay them, the presumption must follow that county budget was exceeded, and that therefore debts would be invalid, where it was not shown how the condition was brought about (Code 1930, sec. 5977).
3. COUNTIES.
Taxpayers objecting to Lincoln county funding bonds could not contend that statute under which bonds were ordered to be issued was invalid because it gives the board of supervisors power to issue bonds without notice to taxpayers and without requiring board to hear protests, where objecting taxpayers were present, filed their objections, and had opportunity and right of appeal to the circuit court (Code 1930, sec. 5977).
4. COUNTIES.
Lincoln county funding bonds ordered to be issued under statute requiring counties to issue bonds to take up outstanding obligations were not subject to attack on ground that bonds could be issued under later statute to mature within and not beyond ten years, whereas bonds ordered had maturity dates running through 11 years, since that later statute deals with funding bonds to discharge an indebtedness incurred on anticipated tax obligations, and has no reference to bonds issued under the other statute (Code 1930, sec. 5977; Laws 1932, chap. 235, sec. 13).
5. COUNTIES.
Recitals in order of county board of supervisors which determined to issue funding bonds under statute to take up outstanding obligations, that board had examined and confirmed unpaid accounts and other obligations of county, showed that accounts were on file with board, and when so examined and confirmed as correct and owing, that was all that was necessary to give accounts the dignity required for application of statute (Code 1930, sec. 5977).
6. COUNTIES.
The ultimate jurisdictional facts, as distinguished from the antecedent or evidentiary facts, must be recited in an order of a county board of supervisors which determines to issue funding bonds to take up outstanding obligations of county (Code 1930, sec. 5977).
7. COUNTIES.
Taxpayers objecting to the issuance of county funding bonds and attacking the order of the board of supervisors on account of antecedent or evidentiary facts recited therein, must attack the order by appealing from the order (Code 1930, sec. 5977).
8. APPEAL AND ERROR.
Disposition of an appeal from chancery court's decree validating county funding bonds would not be stayed until circuit court had acted on a petition for a writ of certiorari filed after entry of decree, since in certiorari proceeding circuit court would be confined to the very same record made by the board which the chancery court had before it in the validation proceedings and the Supreme Court had before it on appeal (Code 1930, secs. 72, 73, 5977).
APPEAL from the chancery court of Lincoln county; HON. V.J. Stricker, Chancellor.
Price Harper, of McComb, and Price, Price Phillips, of Magnolia, for appellants.
A board of supervisors is a creature of statute and has no power other than that directly authorized by statute; there is no authority whatsoever for the board to issue county wide bonds to pay the obligations of the several legal taxing entities, or districts, of the county.
In re Walthall County Tax Anticipation Notes, 183 So. 565.
The record herein shows upon its face that the alleged unpaid accounts sought to be funded were incurred in gross, flagrant, unlawful and illegal excess of the budget and tax collections of the Board of Supervisors of Lincoln County, Mississippi, for the current fiscal year in which the bonds were authorized and issued without any allegation of a reason therefor such as an emergency; such proceedings are null and void upon their face.
Secs. 3970, and 3973, Code of 1930; Middleton v. Lincoln County, 122 Miss. 573, 84 So. 907; Brown v. Board of Supervisors of Simpson County, 187 So. 738.
The board wilfully denied the petition, plea and prayer of the appellants as taxpayers of Lincoln County, Mississippi, an opportunity to be heard in the proceedings herein and such action of the board and any and all statutes which may be construed to authorize such action are unconstitutional and void.
The law requires that funding bonds be issued to mature serially over a period of ten years when in the case at bar the bonds were authorized to mature serially over a period of eleven years.
Laws of 1932, Chapter 235, Sec. 13.
The issuance of the bonds in these proceedings caused district No. 3 of Lincoln County to exceed the 10% limitation on bonded indebtedness and such action is null and void.
Laws of 1932, Chap. 235, Sec. 3; Brown v. Simpson County, 187 So. 738.
A board of supervisors is a court of inferior and limited jurisdiction.
Holmes v. State, 53 Miss. 37; Andrews v. Hames, 95 Miss. 271, 48 So. 290; Jackson Equipment Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734.
And nothing is presumed in favor of a judgment of such a court even on a collateral attack.
Adams v. First Nat. Bank, 103 Miss. 744, 60 So. 779; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Jackson Equipment Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734.
And the record and proceedings in the case at bar fail to recite necessary jurisdictional facts in this, to-wit:
The record shows upon its face that many of the alleged unpaid accounts sought to be funded are for purchases of supplies for public works, public buildings, public construction and for roads and bridges and the statutes require publication of notice and competitive bids for such contracts if they are to be legally incurred; it was necessary for the record herein to allege as a jurisdictional fact that these statutes had been complied with.
Chap. 159, Code of 1930; Sec. 6064, Code of 1930; Jackson Equipment Serv. Co. v. Dunlop, 172 Miss. 762, 160 So. 734. The Board of Supervisors in the case at bar attempted to take jurisdiction of certain claims which it alleges were outstanding, undisputed, and unpaid. The statutes require that all claims which the board can even consider must be filed, docketed, numbered and audited. The records and proceedings in the case at bar fail to recite the necessary jurisdictional facts that the claims which the board considered in the case at bar had been filed, docketed, numbered and audited as required by law.
Chap. 317, Laws of 1938.
A reasonable construction of Section 5977 is that the "other obligations" mentioned therein must be of equal dignity with legal undisputed outstanding warrants before same can be funded under the provisions of this statute.
Chap. 209, Laws of 1918.
Section 5977 is mandatory; it cannot be claimed that the Board of Supervisors has the power voluntarily to do an act under the authority of this statute which it cannot be forced to do by mandamus, and this court has held that a board cannot be forced by mandamus to pay a claim until it appears upon the face of the record that the claim has been allowed, rather than the indebtedness which it evidences has been acknowledged.
Sec. 5977, Code of 1930; American Oil Co. v. Bishop, 163 Miss. 249, 141 So. 271, 765.
The failure to recite necessary jurisdictional facts is a question which can be raised in a validation proceeding.
Green v. Board of Supervisors, 172 Miss. 573, 161 So. 139.
Succinctly stated, it is the contention of appellee that if Section 5977 of the Code be construed so as not to require that claims evidencing the debts to be funded to be filed, docketed, audited, numbered and allowed and in the other meanings as applied and in the other meanings as applied by the Board of Supervisors in this proceeding the statute and the resolution of the Board of Supervisors under its authority are unconstitutional and void because it denies to the appellants as taxpayers of said county due process of the law and equal protection of the law as guaranteed by the constitution of this state and of the United States.
Hugh V. Wall and R.L. Jones, both of Brookhaven, for appellee.
Appellants argue that there is no authority for a county to issue county-wide bonds to pay obligations of several legal taxing entities such as road districts. We submit that there is nothing in the face of the resolution or order of the Board of Supervisors to show that there is any effort to pay the debts of separate taxing entities with county wide bonds, and an attempt to prove such an allegation would constitute a collateral attack upon the judgment of the Board of Supervisors.
Harvey v. Covington County, 161 Miss. 765, 138 So. 403; Hegwood v. Smith County, 140 So. 223.
We submit that even in the case of separate road districts the Board of Supervisors of a county has a right to maintain or construct roads and bridges in separate road districts from a county-wide levy. Having this authority, it necessarily follows that the Board of Supervisors has the right to incur obligations for maintaining or constructing roads in any district in the county to be paid from a county-wide levy. Having the authority to incur the accounts, the accounts, when incurred and unpaid, would necessarily fall within the provisions of Section 5977, Code of 1930. Our statement that the Board of Supervisors has the authority to work district roads from county-wide levy and to incur obligations for such purposes is based upon Section 3, Chapter 104, Laws of 1932.
Appellants' argument that the fact that the resolution recites that there are no funds in the treasury with which to pay the accounts listed disclosed the invalidity of the accounts and, therefore, the invalidity of the bonds proposed to be issued, likewise constitutes a collateral attack upon the judgment of the Board of Supervisors that "there was now outstanding the following legal and undisputed unpaid accounts and other obligations of said county, to-wit", and also its adjudication: "Whereas this Board has investigated each of the aforesaid outstanding, unpaid accounts and has found each of the accounts to be a valid and undisputed outstanding obligation of Lincoln County, Mississippi."
The recitation that there are not sufficient funds in the treasury to pay said accounts does not show that the budget has been exceeded, and does not render the bond resolution invalid.
Choctaw County v. Tennison et al., 134 So. 900.
We fail to see how the failure of the Board of Supervisors to grant the petition or to sustain the protest filed before them could render Section 5977, Code of 1930, unconstitutional.
The Laws of 1932, Chapter 235, Section 13, is limited by its own words to bonds issued under section 11 of that act, and by no stretch of the imagination could be made to apply to Section 5977, under which when bonds are issued their maturity is governed by the general statute on other bonds.
Appellants' Argument with reference to the indebtedness due by District No. 3 is inapplicable because of the fact that these are county-wide bonds, and in addition, is a collateral attack upon the judgment of the Board.
The necessary jurisdictional facts for the issuance of funding bonds under Section 5577 are: (1) That the county have legal and undisputed outstanding warrants or other obligations. (2) That the county have insufficient funds in the treasury to pay them, or any of them. (3) That the statutory limits on bond issues be not exceeded.
Each and every one of these jurisdictional facts is clearly recited and adjudicated in the resolution of the Board of Supervisors. The questions discussed by appellants might be relevant if the creditors were undertaking to force the Board of Supervisors by mandamus to pay a claim or if the Board were at this time being sued, but the only jurisdictional facts required to be recited for the issuance of bonds with which to pay accounts already incurred are the points hereinbefore recited.
Section 15, Chapter 235, Laws 1932, prohibits the issuance of any warrant until or unless there is sufficient money in the particular fund upon which it is drawn with which to pay same. Section 5979, Code 1930, also prohibits the issuance of warrants unless there is sufficient money in the particular fund on which it is drawn with which to pay it.
In Marshall County v. Callahan et al., 130 Miss. 271, it was held that these acts prohibit a county from allowing a claim against it as well as issuing a warrant therefor unless there is sufficient money in its treasury in the particular fund from which such allowance is to be made. So that the Board of Supervisors could not "allow" the claims herein involved in this resolution but can only allow the accounts for payments when the funds have been obtained.
Counsel's argument as to the denial of a hearing to the objectors is unsupported by the facts, all of which show that they had an opportunity to appeal from the order of the Board of Supervisors of which they did not avail themselves.
If the objectors can point out any accounts that are illegal they will still have their recourse and opportunity to be heard when the claims are taken up for allowance and payment by the Board. If the objectors were not satisfied with the action of the Board in ordering the issuance of the bonds and the sale thereof under the protest of the objectors, they had a perfect remedy by appeal to the Circuit Court.
We respectfully submit that none of the objections to the validation of the bonds are sufficient; that they are either insufficient in law or constitute collateral attacks upon the judgment of the Board of Supervisors, and that the validation of these bonds by the Chancery Court of Lincoln County, Mississippi, should be affirmed.
Argued orally by O.W. Phillips, for appellant, and by R.L. Jones and H.V. Wall, for appellee.
At the September, 1939, term the board of supervisors of Lincoln County determined to issue the funding bonds of the county in the sum of $54,000, as provided by Section 5977, Code 1930, which section is in the following language: "Every municipality and every county in this state which has or may hereafter have legal and undisputed outstanding warrants or other obligations, and insufficient funds in the treasury to pay them or any of them, is empowered and required to at once prepare for, and take up such warrants and other obligations from the proceeds of serial bonds which shall be issued for such purpose, as is provided by law for issuance of bonds for the payment of outstanding obligations. Such bonds to pay such outstanding obligations shall be issued regardless of the amount thereof, and no election shall be held on the question of the issuance of such bonds for the payment of such obligations, but the prompt issuance of sufficient bonds to pay all of such legal and undisputed warrants or other obligations is made mandatory on such counties and municipalities."
Several taxpayers, among whom were the present appellants, appeared and objected; but the board nevertheless made the order, reciting and adjudicating therein every ultimate jurisdictional fact required to be present and to be adjudicated in order to bring the provisions of the quoted statute into operation. No appeal was taken; but when the validation proceedings came on to be heard, the objectors again appeared and objected, and from the decree validating the bonds they have appealed to this court.
The argument has taken a wide range, and we must necessarily deal in the briefest manner with each point raised. The first point is that the order of the board seeks to issue county-wide bonds for obligations which appear on the face of the order to be, in large part, the debts of several, separate road districts. There is nothing in the record to show that during the time these obligations were incurred the public roads in the county were being maintained under any separate district system as regards the sole taxable source of and for the expenditures therein. Many counties work their roads out of county-wide road funds, but their boards require that the expenditures for the several supervisors' districts shall be set up on the county books in such manner that what each district is getting from these funds may be at any time readily ascertained. So far as anything to the contrary appears in this record, this is what was being done in Lincoln County.
The second point is that since the order recites that there are outstanding, unpaid, valid and undisputed accounts and other obligations against the county and that there are insufficient funds to pay them, the presumption or inference must follow that the county budget was exceeded, in which case, as appellants contend, the debts would be invalid. The answer to this is that this condition may have been brought about by disappointment in the collection of the expected amounts of taxes, as has so often heretofore happened throughout the state. There is no showing in the record how it was brought about here.
The third point is that Section 5977, Code 1930, is invalid, because it gives the board the power to issue the bonds without notice to the taxpayers and without requiring the board to hear protests of taxpayers. There are several answers to this, a sufficient one being that these objectors were present, filed their objections, and had the opportunity and right of appeal to the circuit court.
The fourth point is that under Section 13, Chapter 235, Laws 1932, the bonds could be issued to mature within, and not beyond, ten years, whereas the bonds here ordered have maturity dates running through eleven years. The statute last cited deals with funding bonds to discharge an indebtedness incurred on anticipation tax obligations, and has no reference to the bonds which may be issued under Section 5977, Code 1930.
The fifth point is a corollary of point one, and has, therefore, already been disposed of.
The sixth point is that the order failed to recite the necessary jurisdictional facts. It is said that many of the unpaid accounts mentioned in the order are for the purchase of supplies for public work in excess of $100 each, and yet the record does not disclose that these purchases were made after publication of notice for competitive bids; that the orders do not show that these several accounts had been filed, docketed and audited by the board, and that the order does not show that the unpaid accounts were of the same dignity as outstanding warrants.
The order recites: "Whereas the Board of Supervisors of the County of Lincoln in the State of Mississippi does now find and determine that there are now outstanding the following legal and undisputed, unpaid accounts and other obligations of said county to-wit:" (and here follow about 250 items, giving the name of each claimant, for what purpose and the amount of each account); "and whereas the aforesaid outstanding unpaid accounts and other obligations of said county aggregate the principal amount and sum of Fifty-Four Thousand Dollars ($54,000.00); and whereas this Board has investigated each of the aforesaid outstanding accounts, and has found each of the accounts to be a valid and undisputed obligation of Lincoln County, Mississippi; and whereas, insufficient funds are on hand in the county treasury of said county with which to take up, pay and redeem said obligations, or any of them, and that funds available and to become available from taxes levied in the year 1938 will be insufficient to take up, pay and redeem all of the aforesaid outstanding obligations, and whereas", etc., continuing thence with all the other requisite adjudications and recitals; and there is repeated in Section 1 of the resolution portion of the order as follows: "That each and every one of the aforesaid outstanding unpaid accounts of said County . . . be and the same is hereby approved and confirmed as a legal and undisputed outstanding obligation of said County."
These recitals show that these accounts or claims were on file with the board, else the board could not, as a board, have examined and confined them, as the order recites was done, Pettibone v. Wells, 181 Miss. 425, 437, 179 So. 336; and when so examined and confirmed as correct and owing, this was all that was necessary to give them the dignity required for the application of Section 5977, Code 1930. It was not necessary to recite the antecedent or evidentiary facts. In an order such as this, it is the ultimate jurisdictional facts, as distinguished from the antecedent or evidentiary facts which are required to be recited in the order of the board. Pettibone v. Wells, supra. If objectors to the issuance of bonds would attack such an order on account of the antecedent or evidentiary facts, it must be done by appeal from the order.
The seventh and eighth points raised by appellants are disposed of by what has been said in regard to the others.
A motion has been made to stay disposition of the present appeal until the circuit court has acted upon a petition for a writ of certiorari — the said petition having been filed in the circuit court subsequently to the decree of validation in the chancery court. In support of this motion appellants rely upon Pearce v. Mantachie, etc., Dist., 134 Miss. 497, 99 So. 134, wherein it was held that pending a direct appeal to the circuit court from the order of the board issuing the bonds, the chancery court shall not entertain validation proceedings. The reason for this is evident, in that the order of the board for the issuance of the bonds might be reversed and vacated on the direct appeal in the circuit court.
But when the circuit court is petitioned to act by way of certiorari under Sections 72 and 73, Code 1930, it is "confined to the examination of questions of law arising . . . on the face of the record and proceedings" The circuit court in certiorari is confined to the same, and to the very same record made by the board, which the chancery court has before it in the validation proceedings — and the same record which is before us in the present appeal from the chancery court.
A copy of the petition for certiorari in the circuit court is annexed to the motion, and it is apparent therefrom that much of the matter therein relied on would have been pertinent, and perhaps of controlling materiality, on a direct appeal from the order of the board, but are not at all available on certiorari. See Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773; Hamilton v. Long, 181 Miss. 627, 180 So. 615.
The motion to stay will be overruled, and the decree of validation will be affirmed.
Affirmed.