Opinion
No. 28285.
November 18, 1929.
MANDAMUS. Petitioner, not alleging bridges were built, could not compel county supervisors to pay for bridges from general funds rather than road funds.
Petitioner, not alleging that roads had been constructed and were without necessary bridges, or that bridges had been built and had not been paid for, could not compel board of supervisors of county to pay for bridges costing more than twenty-five dollars out of general county fund rather than from proceeds of road bonds.
APPEAL from circuit court of Wilkinson county. HON. R.L. CORBAN, Judge.
Jones Stockett, of Woodville, for appellant.
Boards of supervisors can do valid acts only as authorized by law; the powers conferred by statute will be strictly limited; they can exercise only such powers as are expressly conferred by statute.
Howe v. State, 53 Miss. 57; Adams v. First Nat. Bank, 103 Miss. 744, 60 So. 770; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; Board, etc., v. Sneelgrove, 103 Miss. 898, 60 So. 1023; Woodruff v. Okolona, 57 Miss. 809; Cutler v. Board, etc., 56 Miss. 115; Barnum v. Okolona, 148 U.S. 395, 37 Law Ed. 497.
Under the provisions of chapter 176, Laws of 1914, and all laws amendatory thereto, it is the mandatory duty of the board to pay for all bridges the cost of which is twenty-five dollars or more, and to keep them in repair.
There being no right nor power to use any part of the bond issue for any purpose other than construction and maintenance of the roads, and it being made the duty of the board of supervisors, out of county funds, to pay for all bridges in the district costing more than twenty-five dollars (sec. 20, chapter 277, Laws 1920, which is same as section 20, chapter 176, Laws 1914), appellant contends that this board should be compelled to do what the law requires should be done.
Hinton v. Board, etc., 84 Miss. 536, 36 So. 565; Hancock County v. Shaw, 120 Miss. 48, 81 So. 647; Jackson County v. Neville, 131 Miss. 599, 95 So. 626; 15 C.J., p. 420, sec. 53; Monroe County v. State, 63 Miss. 135; Monroe County v. Shell, 125 Miss. 562, 88 So. 162; Williamson v. Hossley, 127 Miss. 505, 90 So. 184.
Tucker Tucker, of Woodville, for appellee.
The petition of appellant fails to show any act by order of the board of supervisors the performance or omission of which the law specially enjoins as a duty of the board.
Sec. 3231, Code of 1906, sec. 2709, Hemingway's Code of 1927; Chapter 261, Laws of 1922; Hemingway's 1927 Code, section 8433; Ellis v. Tillman, 125 Miss. 678, 88 So. 281; Marshall County v. Callahan, 130 Miss. 271, 94 So. 5; Amite County v. Mills, 138 Miss. 222, 102 So. 465; Clark v. Claiborne County, 120 So. 190.
The petition of appellant fails to have annexed to or filed therewith any writing or order of the board refusing to raise sufficient funds to pay the cost of constructing such bridges.
There must be some order of the board refusing to raise sufficient funds to pay the cost of the said bridges.
Sections 531-532, Hemingway's 1927 Code; Lamar County v. Tally, 116 Miss. 588, 77 So. 299; Smith v. Tallahatchie County, 124 Miss. 36, 86 So. 707; Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Ellis v. State, 142 Miss. 468, 107 So. 757.
It is clearly in the discretion of the board to compel the district to build its own bridges.
The courts cannot control the discretion of the board of supervisors and compel it to comply with the prayer of the petition.
Attala County v. Grant, 9 S. M. 77, 47 Am. Dec. 102; Swan v. Gray, 44 Miss. 393; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; Board of Education v. West Point, 50 Miss. 638; Haskins v. Scott County, 51 Miss. 406; Floyd Robinson v. Board of Supervisors, 105 Miss. 90, 62 So. 3; City of Greenwood v. Provine, 143 Miss. 42, 108 So. 284; Board of Supervisors of Rankin County v. Lee, 147 Miss. 99, 113 So. 194; State ex rel. Cowan, Dist. Atty., v. Morgan, County Supt. of Education, 147 Miss. 121, 112 So. 865; Ruhr et al. v. Cowan, Dist. Attorney, 146 Miss. 870, 112 So. 386.
Nowhere in the record is it shown, that there exists an order of the board refusing to build the bridges of the said separate road district out of the county fund.
Argued orally by A.H. Jones, for appellant, and by H. Clay Tucker, for appellee.
This is an appeal from a judgment dismissing a petition for a writ of mandamus. The petition alleged, in substance, that the board of supervisors of Wilkinson county had created two separate road districts under the provisions of chapter 176, Laws of 1914 (chapter 207, Laws of 1920), and laws amendatory thereof, and had sold bonds of said road district to the amount of one hundred twenty-five thousand dollars; that thereafter contracts for the construction of the roads were let aggregating something over one hundred seven thousand dollars; that the road engineer estimated it would cost, in addition thereto, about thirty-one thousand four hundred thirty-three dollars to construct larger bridges on the roads; that, under the statutes, it was the duty of the board of supervisors to construct all bridges on these roads costing more than twenty-five dollars each, and pay therefor out of the general county fund, but that the board has, by resolution on its minutes, declared its purpose of paying for these bridges out of the proceeds of the road bonds. The prayer of the petition is that the board be ordered to pay for all bridges on these roads costing more than twenty-five dollars out of the general county fund, and to provide, by taxation, the money therefor.
It will be observed that the petition does not allege that the roads have been constructed and are without the necessary bridges thereon, so the petition presents no cause of complaint against the board of supervisors on that score.
Assuming, merely for the purpose of argument, that the appellant is correct in its contention that the board of supervisors should pay for these bridges out of the general county fund, it cannot be coerced into so doing by a writ of mandamus until it is made to appear that the bridges have been built and have not been paid for, even if mandamus would then lie. Should the board, after the building of these bridges, attempt to pay therefor out of the wrong fund, it can be restrained from so doing by any proper proceeding.
Affirmed.