Opinion
No. 30407.
November 21, 1932.
1. COUNTIES.
Attempted borrowing of money from county sinking fund on county's unsecured note, to procure money for paying school salaries, held unauthorized (Code 1930, section 5988).
2. MANDAMUS.
Mandamus held not available against chancery clerk to compel action on order of county supervisors which on its face was unauthorized.
APPEAL from circuit court of Winston County. HON. JNO. F. ALLEN, Judge.
Rodgers Prisock, of Louisville, for appellant.
The Board of Supervisors of Winston County, Mississippi, met at its regular October meeting on the first Monday in October as shown by Exhibit two in the petition filed in the Circuit Court of Winston County, Mississippi, and after having been called to order entered an order under Sections 6615 and 6616 of the Code of 1930, which permits the Board of Supervisors or trustee of separate school districts to borrow money for the purpose of paying school teachers and school carrier's salaries.
Winston County had at that time funds in the Common County Sinking Fund which were not in use and were held by the County Depository to await the contingency for which said funds were accumulated, to-wit: for the payment of bonds and interest.
We are unable to see how the jurisdictional facts could be set out in plainer terms than to follow the words of the statute authorizing the lending of the sinking funds to said county of its obligations under Section 5988, Code of 1930; and Sections 6615 and 6616, Code of 1930, where the school fund is depleted the board is permitted to borrow money for the purpose of paying school carriers.
The order sets out the fact that there is no school fund with which to pay school carriers, thereby giving it the jurisdiction to borrow the money; and sets out the fact that there are sinking funds which will not be needed before the due date of its obligation. We, therefore, say that it is very evident that the jursidiction giving the board the right to borrow the sinking funds for the school, and the right to lend the sinking funds have been plainly set out in the order of the Board of Supervisors.
Board of Supervisors Noxubee County v. Long, 106 So. 83; Hinton v. Board of Supervisors, Perry County, 36 So. 565.
Appellee has set out many reasons under which she refuses to act in this case, none of which were seriously argued by her attorney, except the jurisdictional question, in the court below, and the ninth assignment which, of course, is answered by Section 5988, Code of 1930, quote: "The Board of Supervisors are also authorized to invest the sinking funds of any county in the bonds or other obligations issued by said county." And there is really no contention on that assignment.
E.M. Livingston, of Louisville, for appellee.
It is necessary for the board to pass an order that is full and complete showing the authority for a loan before a loan can be legally made from any fund belonging to the county or the districts thereof. The authority of law is jurisdictional and should appear in the order giving the Clerk notice and showing authority for the transfer or transposition of funds belonging to the county or its various taxing districts.
We admit that the county had sufficient funds in the interest and sinking fund to make the loan, and it is not contended that the board cannot borrow money under the provision of Sections 6615 and 6616 of the Code, but we do seriously contend that the board has no authority of law to borrow money from any other fund of the county under the provision of these sections. They could borrow money from an individual or a bank, but cannot transpose funds from one fund to another, and what the board did in this instance was to undertake to transpose funds from Common County Bond and Interest Sinking Fund to the Common School Fund, and the effort was made without authority so to do.
Sections 6615 and 6616, Code of 1930, nowhere give the Board of Supervisors the authority to loan the funds to another fund of the county, but simply give them the authority to borrow money.
Counsel for appellant cites Section 5987, Code of 1930, in support of their contention and quote part of the section only. They do not quote that part of the section that places them squarely under the provisions of section 247 above quoted. We submit that Section 5987 simply reiterates and makes the restriction on the board more rigid than does Section 247, Code of 1930.
In neither section has the Legislature made provisions for such loan as contemplated by appellant in this proceeding.
Section 5988, Code of 1930, is of no assistance to appellant in this case because they are not undertaking to make an investment in bonds or other obligations of the county, or at least the order under which they are traveling does not even hint at such procedure.
This court has held in numerous cases that boards of supervisors are creatures of statute and can do only such things as are expressly authorized by statute. They cannot enlarge upon the statute, nor can they make an investment in securities when the order they pass provides for a loan.
The powers of a county board of supervisors will be strictly limited to those conferred by statute.
Adams v. First National Bank, 103 Miss. 744; Green County v. Snellgrove, 103 Miss. 898.
Boards of supervisors have no implied powers, and can act only through their minutes spread upon the records of their office.
Tallahatchie Drainage District v. Yocono-Tallahatchie Drainage District, 148 Miss. 182.
A warrant issued under an order which does not specify the statute which it is allowed is void.
Beck v. Allen, 58 Miss. 143.
And the clerk will act right to refuse to issue a warrant under such an order.
Land v. Allen, 65 Miss. 455.
Argued orally by Harry Rogers, for appellant, and by E.M. Livingston, for appellee.
At the regular October, 1932, meeting of the board of supervisors of Winston county, the following order was made and entered on the minutes of the board:
"Be it remembered that this day come on for consideration the matter of borrowing money to pay school carriers and teachers' salaries during the months of the session of 1932 and 1933, and there are no funds in the treasury for this purpose. It appearing to the Board of Supervisors that there are funds in the Common County Sinking Fund not needed to pay interest or bonds before March 1, 1933, and it further appearing to the Board that said School Fund is very much in need of funds to pay school carriers and teachers' salaries.
"It is, therefore, ordered by the Board of Supervisors that the sum of one thousand six hundred sixty dollars be borrowed from the Common County Sinking Fund by the Common School Fund at the rate of six per cent per annum from date until paid, and that said sum be due and payable March 1, 1933, and that said interest and principal in the sum of one thousand six hundred sixty dollars be paid out of the Common School Fund.
"It is further ordered by the Board that the President of the Board of Supervisors and the Chancery Clerk execute a note payable on the 1st day of March, 1933, in the sum of one thousand six hundred sixty dollars with six per cent interest from date until paid, payable to the Common County Interest and Sinking Fund and payable out of the Common School Fund of said county.
"It is further ordered that the Chancery Clerk L.W. Adams issue a warrant payable out of the Common County Sinking Fund in the sum of one thousand six hundred sixty dollars payable to the Common School Fund."
The chancery clerk declined to execute the note or to issue the warrant required by the order. The board by a petition in mandamus sought to compel her, but the circuit judge sustained a demurrer to the petition and declined to grant the relief sought, and in this we think the judge was right.
It will be observed from the terms of the order that the effort was to borrow from the common county sinking fund without compliance, however, with sections 251 and 252, Code 1930, which are the sections which deal with the specific subject of borrowing money by the board of supervisors. Appellants do not claim that they were proceeding under those sections, but aver that they were availing of the provisions of section 5988, Code 1930, which authorizes the board to invest surplus sinking funds "in the bonds or other obligations of the United States government, the State of Mississippi, or of any county, municipality, levee district, school district, road district, drainage district or any taxing district issued under the authority of any law of the State of Mississippi, and to pay a premium therefor if necessary, provided that no bonds or other obligations shall be purchased with such funds until the validity of said bonds or other obligations shall have been unqualifiedly approved by some reputable bond attorney," etc.
We think it fairly obvious from a close study of section 5988, in connection with other cognate sections and with the general system of county financial administration, that said section does not authorize the borrowing or transferring of money from a sinking fund on a simple promissory note executed upon any such an order of the board as that set forth hereinabove. If that could be done, which the board has here proposed, the sanctity and stability of the sinking fund, raised and laid aside for a special purpose and to which the good faith and credit of the county is most solemnly and specifically pledged, would be no longer more than a name — a shadow with nothing of real substance. If such a fund could be transferred or expended upon the simple note of the county without more, then for all practical purposes the sinking funds had as well be deposited in the first place in the general county fund. The borrowing or displacing of sinking funds by the substitution therefor of no more than a simple promissory note is in substance merely to transfer the said sinking fund to another fund and purpose. Such action is not authorized by law, and we are confident that it never will be authorized.
Appellant contends that the defenses interposed by appellee are collateral attacks upon the order of the board, and that her defense should have been by appeal. So far as concerns the writ of mandamus against a public officer, the petitioners must show a clear legal right to have the officer perform the duty sought to be compelled, from which it follows in the converse that mandamus cannot be availed of to compel an officer to do that which he has no legal right to do. The order of the board which is the basis of the petition in this case shows on its face that it is without authority of law, and therefore imposes no legal duty upon the clerk; it shows that if appellee clerk had acted upon said order, she would have done that which she had no legal right to do.
Affirmed.