Summary
In Attala County v. Mississippi Tractor Equipment Company, 162 Miss. 564, 139 So. 628, the claim against the county was for articles sold the county for and used by it in the repair of road machinery, covering a period of several months, and were purchased with the approval of the individual members of the board of supervisors.
Summary of this case from Beall v. Bd. of Suprs. of Warren Co.Opinion
No. 29860.
February 23, 1932. Suggestion of Error Overruled March 21, 1932.
1. COUNTIES.
"Emergency" in statute authorizing members of board of supervisors to make emergency expenditures is unforeseen occurrence or combination of circumstances calling for immediate action (Code 1930, section 6064).
2. COUNTIES.
Statute empowering members of board of supervisors to make emergency expenditures held inapplicable, where articles were purchased as needed for county's road machinery (Code 1930, section 6064).
3. COUNTIES.
In absence of valid express contracts, county held not liable under implied contract for articles purchased for road machinery.
APPEAL from circuit court of Attala county. HON. J.F. ALLEN, Judge.
James T. Crawley, of Kosciusko, for appellant.
Even if the delivery was made, and the court holds that the evidence is sufficient so to show, then the county contends that the purchase was not made in accordance with the law.
A member of a board of supervisors cannot go out in the open market and without any competitive bidding or without any evidence to the contrary being shown, buy from any one from whom he pleases various merchandise, articles of machinery or equipment or things necessary for repairs of road work without first having sought from various persons competitive bids.
It takes an affirmative act of the board within the scope of its authority, evidenced by an entry on its minutes, to bind the county on a contract; and when thus made, the contract is not to be varied, any more than created by mere silence of a portion of the board and the mistaken assertions of others.
Bridges Hill v. Board of Supervisors, 58 Miss. 817.
The board of supervisors of a county in making expenditures on and awarding contracts for public work must observe statutory requirements.
Leflore County v. Cannon, 81 Miss. 334.
A new contract not spread on the minutes of the board is invalid.
Northern Drainage District v. Bolivar County, 71 So. 380.
The powers and authority of the board of supervisors is limited strictly to those conferred by statute.
Adams v. First National Bank, 103 Miss. 744.
All contracts made by the board of supervisors in violation to any of the provisions of the law shall be void.
State v. Vice, 71 Miss. 912.
If it can be said that a road foreman of a district or a county may go out into the open market and buy the various and sundry articles that are necessary to repair the road machinery of the county without regard to whom he buys them from, and without regard to competitive bidding, then the taxpayers over the state at large are entitled to have the court so pronounce the law, in order that the Legislature of the State of Mississippi at its next sitting may remedy this situation.
Niles Moseley, of Jackson, and D.H. Glass, of Kosciusko, for appellee.
Section 6362, Code 1930, provides for the appointment of overseers of public roads. Paragraph C, section 6363, Code 1930 in regard to the duties of overseers provides: to make immediate temporary repairs, etc.
All expenses of making the emergency repairs or for the emergency protection of road and bridge property, authorized and required to be done by overseers under the foregoing section shall be paid by the state highway department for state highways actually maintained as such, and by the board of supervisors out of the proper fund for those roads and bridges not under the maintenance of the state highway department; Provided that said expenses have been reasonable in amount and reasonable in point of emergent necessity.
Section 6364, Code of 1930.
If the emergency is such that repairs must be done or be begun within three days the member of the board of the district may order the work done, or contract for the same, with the same effect as if done by the board.
Section 6365, Code of 1930.
The board of supervisors has authority to do any and all things necessary to be done to work, construct, reconstruct and maintain the public roads, etc.
Section 6381, Code of 1930.
All contracts by boards of supervisors for any public work not otherwise specifically provided for, where the amount of the contract shall exceed one hundred dollars, shall be made upon at least three weeks public notice by advertisement in a public newspaper of the county.
Section 239, Code 1930.
Section 246, provides that any member of the board of supervisors may act in cases of emergency.
The board of supervisors, at every one of its regular meetings, had full knowledge of and approved such purchases and at various times, by making payments on these accounts has recognized their correctness and validity and, in addition to that, two of the supervisors have approved in writing the two accounts in controversy, and same have never been disallowed.
It was the duty of the board to act in a case of emergency as there would be occasions when, by reason of the limitations of human forethought, counties would be powerless for a disastrous space of time, to perform the imperative duties and to render the essential service which was and is the purpose of their organization and existence.
Choctaw County v. K.L. Tennison, 161 Miss. 66.
The obligation to do justice rests upon all persons, natural or artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.
Methodist Episcopal Church, South, of Vicksburg v. Mayor Aldermen of Vicksburg, 50 Miss. 605; Ward v. Love, 253 U.S. 24, 64 L.Ed. 756.
The appellant is liable on the theory of quantum valebat.
Crump v. Board of Supervisors, 52 Miss. 110.
Argued orally by Niles Moseley, for appellant, and by Jas. T. Crawley, for appellee.
This appeal is from a judgment for the price of articles the appellee claims to have sold the appellant for the repair of, and use in connection with, road machinery. The account sued on runs over a period of several months, and the various articles are said by the appellee to have been, and we will assume were, purchased by or with the approval of individual members of the board of supervisors.
The statutes (Code 1930, sec. 6064) relied on by the appellee as authorizing the purchases are those which empower members of the board of supervisors to make emergency contracts and expenditures.
An emergency is "an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; a pressing necessity." Webster's New International Dictionary. No such occurrence or combination of circumstances is here shown. The evidence discloses that the articles were purchased when and as needed for, and were necessary for the continued use of, the county's road machinery; but what "unforeseen occurrence or combination of circumstances" made it imperatively necessary that the articles be immediately purchased does not appear. The emergency statutes, therefore, have no application here.
But it is said by counsel for the appellee, and we will assume the evidence discloses, that the county received and appropriated the articles, and therefore the appellee is entitled to recover the value thereof without reference to the legality of the purchase. The statute contemplates that purchases by counties shall be made under valid express contracts, and, in the absence thereof, a county cannot be held liable under an implied contract to pay. Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Amite County v. Mills, 138 Miss. 222, 102 So. 465, 737.
The request of the appellant for a directed verdict should have been granted.
Reversed, and judgment here for the appellant.