Opinion
No. 35668.
November 13, 1944. Suggestion of Error Overruled April 23, 1945.
1. OFFICERS.
At common law a public officer is not liable for errors or mistakes made by him in good faith when acting judicially or quasi judicially within the scope of the subject matter over which he has been given jurisdiction.
2. SCHOOLS AND SCHOOL DISTRICTS.
In issuing certificates against school fund for the purchase of fire extinguishers and the payment of premiums on bonds executed by bus driver, the County Superintendent of Education was not a mere ministerial officer but was performing quasi judicial duties, and where such certificates were issued in good faith, although erroneously under the law, the superintendent did not become liable on his official bond (Laws 1938, chap. 236, secs. 3, 14; Code 1942, sec. 4049).
3. EQUITY.
In action against County Superintendent of Education and sureties on his official bond to recover for money alleged to have been withdrawn from school fund without legal authority, bill was not bad for failure to negative good faith of Superintendent in issuing the certificates, since good faith was a matter of defense (Laws 1938, chap. 236, secs. 3, 14; Code 1942, sec. 4049).
4. OFFICERS.
A payment out of public funds by a public officer, although within the general field of officer's jurisdiction, may yet so clearly be one which the officer could not lawfully make as to bar him from justification in taking the position that he did it in good faith and honest error.
APPEAL from the chancery court of Webster county, HON. ALVIS MITCHELL, Special Chancellor.
W.E. Gore, of Jackson, for appellant.
The County Superintendent was not authorized by law to make the expenditures.
Moore v. State (Miss.), 45 So. 866; State v. Glennen, 93 Miss. 836, 47 So. 550; Kidder v. McClanahan, 126 Miss. 179, 88 So. 508; Griffin v. Board of Mississippi Levee Commissioners, 71 Miss. 767, 15 So. 107; State to Use of Lincoln County, v. Green, 111 Miss. 32, 71 So. 171; Trantham v. Russell, 171 Miss. 481, 158 So. 143; Adams v. Lee, 72 Miss. 281, 16 So. 243; Beall v. Board of Supervisors, Warren County, 191 Miss. 470, 3 So.2d 839; Miller v. Tucker, 142 Miss. 146, 105 So. 774, 780; Gully v. Bridges, 170 Miss. 891, 156 So. 511; Code of 1871, Secs. 308, 318, 2890; Code of 1880, Secs. 416, 2757; Code of 1892, Secs. 1226, 3057, 3066, 3067; Code of 1906, Secs. 1302, 3430, 3474, 3475; Code of 1930, Secs. 255, 272, 1066, 2902, 2903, 6064, 6732; Code of 1942, Secs. 2298, 2935, 2958, 3877, 3878, 3883, 4048, 4049, 6337, 6526, 8157, 8227, 8249, 9027; Laws of 1916, Ch. 102; Laws of 1920, Ch. 122; Laws of 1922, Ch. 160; Laws of 1930, Ch. 200; Laws of 1938, Chs. 157, 236.
Many duties of a County Superintendent are quasi judicial. But it does not follow that a quasi judicial officer may expend money in any way he sees fit, simply because he has the power to issue requisitions for it. In the exercise of judicial, quasi judicial or ministerial power, jurisdiction to deal with the subject must exist, and where the power does not exist, the act is neither judicial, quasi judicial nor ministerial. It constitutes diversion or conversion, pure and simple. Jurisdiction is lawful power and right to exercise official authority, whether executive, legislative or judicial.
Poyner v. Gilmore, 171 Miss. 859, 158 So. 922; State, to Use of Lincoln County, v. Green, supra; Trantham v. Russell, supra; School District No. 2 v. Lambert, 28 Or. 209.
There is liability at common law, for the wrongful payment of these claims out of the county treasury.
Adams v. Lee, supra; Griffin v. Board of Mississippi Levee Commissioners, supra; United States v. Prescott, 3 How. 578; United States v. Thomas, 15 Wall. 337; United States v. Keehler, 9 Wall. 83; United States v. Morgan, 11 How. 154; United States v. Dashiel, 4 Wall. 182; Bogden v. United States, 13 Wall. 17; Bevans v. United States, 13 Wall. 56; Throop on Public Officers, p. 238 et seq., Secs. 221, 222, 223.
Snow Covington, of Meridian, for appellee.
It is the contention of the defendant that a county Superintendent of Education, under our peculiar set-up, is vested with judicial and quasi-judicial powers, and is not liable officially and upon his bond for such expenditures as those complained of in the bill, even if they were unlawful, if he acted in good faith. In other words, if the Superintendent had jurisdiction over the subject matter of the expenditures, and exercised his discretion in good faith, he is not liable for an error of judgment or a mistake as to his power, any more than a judge on the bench is. The rule, as announced by many decisions of our Supreme Court, is that officers acting judicially and within their jurisdiction are not liable for wrongful acts done in good faith, unless there is a statute making them so liable.
Bell v. McKinney, 63 Miss. 187; DeWitt v. Thompson, 192 Miss. 615, 7 So.2d 529; Dixon v. Gully, 170 Miss. 438, 155 So. 184; Gully v. Bew, 170 Miss. 427, 154 So. 284, 288; Hartford Accident Indemnity Co. v. Hewes, 190 Miss. 225, 199 So. 93; Harper v. Gully (Miss.), 154 So. 288; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Paxton v. Baum, 59 Miss. 531; Pegram v. State, 121 Miss. 564, 83 So. 741; State, to Use of Lincoln County, v. Green, 111 Miss. 32, 71 So. 171; Trantham v. Russell, 171 Miss. 481; 158 So. 143; Gully v. Bradford (Miss.), 155 So. 172; Gully v. Thomas, 171 Miss. 749, 158 So. 465; Gully v. Wilson (Miss.), 155 So. 169; Gully v. McClellan, 170 Miss. 405, 153 So. 524; Haley v. Gully (Miss.), 155 So. 175; Hughes v. Gully, 170 Miss. 425, 153 So. 528; McBride v. Gully (Miss.), 154 So. 887; Laws of 1938, Ch. 200, Sec. 102(c), Ch. 236, Secs. 3, 14.
See also Kidder v. McClanahan, 126 Miss. 179, 88 So. 508; American-LaFrance v. City of Philadelphia, 183 Miss. 207, 184 So. 620; Gully v. Bew, supra; Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451; Code of 1942, Secs. 2941, 2944, 4048.
This is an appeal from a decree sustaining a general demurrer to a bill of complaint and dismissing the suit.
The appellee Lollar was County Superintendent of Education of Webster County and the appellant seeks to recover from him and the sureties on his official bond money withdrawn from the County School Fund on certificates issued by Lollar under Section 14, Chapter 236, Laws of 1938, which prescribes "the expenses of transportation of pupils in each county or school district shall be met in the same way as other expenses incurred in maintaining and operating the school. The cost of such transportation shall be paid out of the county school fund or any available funds of the school district by warrants duly issued by the chancery clerk upon certificates of the county superintendent of education." One of these certificates was issued to J.D. Seely for the "purchase of fire extinguishers for use in the school busses operated in the said county for the transportation of children in said county to and from school buildings located in said county," and two of these were issued to the United States Fidelity Guaranty Company for the payment of premiums on the bonds executed by these school bus drivers.
The appellee Lollar, who hereafter will be referred to as appellee only, makes no contention that he was authorized by any statute to issue certificates for the purchase of fire extinguishers and for the payment of premiums on bonds executed by bus drivers under Section 3 of Chapter 236, Laws 1938, his contention being that if these certificates were issued by him in good faith he is not liable for any mistake he may have made in issuing them, and that his good faith must be here presumed for the reason that it is not negatived by the bill of complaint. Two questions then arise, first, will good faith in issuing these certificates render the appellee immune from liability therefor, and should that question be answered in the affirmative, then, second, should the bill of complaint have negatived good faith on the part of the appellee in issuing these certificates.
No statute has been called to our attention which expressly provides what the liability of a County Superintendent of Education is, if any, for wrongly issuing certificates under Section 14, Chapter 236, Laws of 1938. Section 2903, Code 1930 (Section 4049, Code 1942), simply provides that if "any county . . . officer who has executed a bond for the faithful performance of duty . . . shall violate his official obligations in any respect" he shall be liable to the county for any damages thereby sustained by it. The first question here presented then is, did the appellee violate his official obligation to the county by the issuance of these certificates? Or, to express it differently, did he incur any liability to the county because of his issuance of the certificate? There being, as hereinbefore said, no statute here governing, we must resort to the common law for the answer to this question. At common law a public officer is not liable for errors or mistakes made by him in good faith when acting judicially or quasi judicially within the scope of the subject matter over which he has been given jurisdiction. 46 C.J. 1043; 43 Am. Jur. (Public Officers) sec. 274; Paxton v. Baum, 59 Miss. 531; State to Use of Lincoln County v. Green, 111 Miss. 32, 71 So. 171; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Trantham v. Russell, 171 Miss. 481, 158 So. 143.
The appellee was not a mere ministerial officer, he was charged with the performance of many quasi judicial duties, one of which was to issue certificates of the character here in question, for the payment of the cost of the transportation of pupils to and from the public schools. These certificates he was called on to issue when, but not until, an application was made to him therefor and facts submitted to him which disclose that the applicant was entitled thereto. If on these facts he erroneously but in good faith decided that the applicant was entitled to and issued to him, a certificate, he incurred no liability thereby.
But it is said that good faith in erroneously issuing such a certificate will protect the County Superintendent when, but only when, the money to be paid out of the school fund thereon is for an object authorized by law. These words "an object authorized by law" do not appear in the common law rule as announced by the courts but are taken from Section 1386, Code 1871, now Section 2944, Code 1942, which provides that, "If any board of supervisors shall appropriate any money to any object, not authorized by law, the members of such board shall be liable personally, for such sum of money" unless "he voted against such unauthorized appropriation of money." The question of liability vel non of a public officer for the wrongful act of a corporate body of which he is a member, in the absence of a statute imposing such liability, has given the courts trouble, and this statute was evidently passed to clear up this doubt as to the liability of members of boards of supervisors for the wrongful appropriation of public money made by such boards in their corporate capacity. This was the statute under consideration in Paxton v. Baum, supra, and Miller v. Tucker, 142 Miss. 146, 105 So. 774; Gully v. Bridges, 170 Miss. 891, 156 So. 511; Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451, and other cases dealing with appropriations of money by boards of supervisors out of the county treasury. Paxton v. Baum, supra, while dealing with this statute did announce what the rule at common law was, which announcement has been continuously approved and followed by this Court.
The first of these questions must therefore be answered in the affirmative.
The second question must be answered in the negative for the reason that the bill of complaint alleges a prima facie case of liability and leaves, as it should, "matters of defense to be stated by the defendant." Griffith's Chan. Prac., secs. 182 and 375. If the appellee desires to defend on the ground that he made an honest mistake in issuing the certificates he must plead and prove the real or apparent existence of facts which reasonably caused him to make the mistake. Paxton v. Arthur, 60 Miss. 832, at page 838.
The demurrer should have been overruled and the appellee given an opportunity, if he so desired, to plead his good faith in issuing the certificates.
What we have hereinbefore said in discussing the first of these questions deals with the general principles. We are not to be understood as holding, as respects the expenditure of public funds, that any payment, whatever it is, will be without any personal liability on the part of the officer if only the purpose of the payment was somewhere within the general field of his jurisdiction. A payment may be within that general field and yet so clearly and distinctly one which the officer could not lawfully make as to bar him from justification in taking the position that he did it in good faith and honest error. But this in a particular case we cannot safely determine until the full facts are developed, and they have not been here. Reversed and remanded.
PARTIALLY CONCURRING OPINION.
I concur in the reversal and remand of this cause, and I am also in accord with the view that if the first question stated for decision in the controlling opinion should be answered in the affirmative, the second question therein stated should be decided in the negative; but I am unable to agree that the first of said questions should be answered in the affirmative.
It is true, as stated in said opinion, that "at common law a public officer is not liable for errors or mistakes made by him in good faith when acting judicially or quasi judicially within the scope of the subject matter over which he has been given jurisdiction." However, I do not think that it was committed to the general jurisdiction of this official to purchase fire extinguishers for use in school busses when the law required the bus driver to furnish such equipment. Nor do I think that it was within his general jurisdiction as such officer to pay the premiums on the contract bonds of the bus drivers when the bus drivers are required by law to furnish the bonds at their own expense. In other words, the law did not commit to him the right to exercise any authority or jurisdiction whatever in the matter of equipping these busses with fire extinguishers, which were required to be furnished by the bus drivers as a part of the bus equipment, to any greater extent than he would have authority or jurisdiction to purchase a set of tires, or even a bus for a driver in order to see that the pupils were transported to school.
The bus drivers were under contract to operate busses with the proper equipment furnished by them and to keep ther bonds in force for the faithful performance of such contracts. If they should breach their contracts in either of these respects, the same were subject to be cancelled and to be awarded to someone else. It would seem to me that if an official is to be permitted to escape liability by coming into court and saying that he acted in good faith in engaging in the exercise of a supposed power so foreign to his jurisdiction as here alleged by the State Auditor, then the statutory limitations of his authority and jurisdiction would be rendered meaningless.
Anderson, J., concurs in this opinion.