Opinion
No. 30880.
October 30, 1933.
1. COUNTIES.
Order disallowing city's claim for road taxes collected by county, made at adjourned meeting of board of supervisors, order for which failed to specify claim as matter of business to be transacted thereat, held invalid (Code 1930, section 203).
2. COUNTIES.
Consent of all parties to hearing of city's claim for road taxes collected by county at adjourned meeting of board of supervisors, order for which failed to specify claim as matter of business to be transacted thereat, held not to validate order disallowing claim so that appeal could be taken therefrom (Code 1930, section 203).
APPEAL from Circuit Court of Grenada County.
Cowles Horton, of Grenada, for appellant.
Whatever kind of meeting it may have been the board itself treated and regarded it — not as an adjourned one, but simply as a part, the second day — of its regular term.
Under the general law, it had the right to adjourn to meet, as part of its regular session, on any date prior to its next regular term, the first Monday of March.
Sections 200, 202, and 203, Code of 1930; 7 R.C.L. 990, section 18; Bank v. Withers, 6 Wheat. (U.S.) 106.
Unless there is something in the statutes which change that rule its meeting was, as the board intended, a part — the second day — of its regular term. None of these statutes expressly condemn this action.
Our position does not and cannot violate or offend (a) any express requirement of any statute, (b) any decision of this court, (c) any right, remedy or defense of the county, its board, or its people. On the other hand no possible loss or injury can arise, directly or indirectly, from a decision that by these statutes the legislature has required no more than that regular meetings should begin on a certain day and consume no more than the allotted time, however distributed, in any one month.
If this case, however, shall be affirmed, everything done by the board at that meeting — and it developed in argument that it was an important one — and everything done by this board and all other boards in meetings of that kind which, it was also developed, were many, must be absolutely void. If they are, the consequences cannot be other than injurious to the people and taxpayers whose interests are involved.
The consequences should be considered, whether they be good or bad.
Furniture Co. v. Fox Commission, 160 Miss. 197; Ferguson v. Monroe Co., 71 Miss. 532.
A trial in vacation by consent of the parties by a court having jurisdiction of the subject-matter is valid and neither party can question same thereafter.
Rice v. Locke, 59 Miss. 511; Owens v. Waddell, 87 Miss. 315.
As a litigant in this case, the county will be treated exactly as an individual and bound thereby to the same extent as an individual litigant would be bound.
Jonestown v. Ganong, 97 Miss. 83; Noxubee County v. Long, 141 Miss. 83; Yalobusha County v. Carbry, 3 S. M. 549.
S.C. Mims, Jr., of Grenada, for appellee.
The precise point on which the trial court denied appellant recovery, as suggested in appellant's brief, has never been decided by this court but the principle involved has been before the court in numerous cases.
Sections 202 and 203 of the 1930 Code govern and control the boards as to their meetings, and this court in an early case, Smith v. Nelson, 57 Miss. 138, construing similar statutes in purpose, held, that although dual in character — that is, legislative and judicial — the boards of supervisors judicial as to their times of meeting, and that their terms, duration and mode of calling special terms carefully prescribed by statute. This case was cited with approval by this court in the recent case of Hunter v. Bennett, 115 So. 208. Section 203 is plain and wise in its purpose. The board of supervisors expend a large part of the taxpayer's money and it is imperative that the public be advised of the time and purpose of an adjourned meeting of the board. The language of the statute is plain and unambiguous and not susceptible of any other construction than that given it by the learned trial judge. It manifestly carries out the intent of the legislature, i.e., protecting the public and taxpayers.
Appellant city presented to the board of supervisors of appellee county a claim against the county for a large sum demanded by the city on account of the ad valorem road taxes collected within the city by the county. This was on the 6th day of February, 1933, at the regular February, 1933, meeting of the board of supervisors. The claim being contested and it appearing that considerable time would be consumed in the examination of the issues presented, it was agreed between the city, the members of the board of supervisors, and all those concerned that the board would set the matter specially for a hearing in vacation, as it is termed in the briefs, and that the full and final hearing would be had on February 13, 1933. In accordance with that agreement and in the attempt to carry it out, the board, upon adjourning its regular session on February 6, 1933, entered the following order: "Ordered that the board do now recess until Monday morning February 13, 1933, at nine o'clock A.M."
On the date last mentioned, the members of the board convened and proceeded to the hearing, at the conclusion of which the board made an order disallowing a large part of the city's demand, and by a bill of exceptions the city appealed to the circuit court. The appeal was dismissed by the circuit court for want of jurisdiction and on the ground now to be stated.
Section 203, Code 1930, provides as to adjourned meetings of the board of supervisors that "the order providing for an adjourned meeting . . . shall specify each matter of business to be transacted thereat; and at such adjourned . . . meeting business shall not be transacted which is not specified in the order . . . for such meeting." The adjournment was beyond the six days allowed by law for a regular February term of the board of supervisors in Grenada county, and, as held in Davis v. Grice, 141 Miss. 412, 421, 106 So. 631, the assumption to transact further business on the day to which adjournment was attempted to be taken was without validity, because the adjourning order failed to specify what business was to be transacted at the said adjourned meeting. Appellant is mistaken in its argument that Davis v. Grice, supra, did not decide the question, as a careful examination of that opinion will disclose.
The further contention of appellant is that even if it be conceded that the attempted meeting on February 13th was not valid for the reason above stated, it was nevertheless effective in this case because it was held by agreement of all concerned and all then and there appeared and joined issue, without any objection by any person or official, and without the question as to the validity of the meeting having been raised from any quarter; that this was therefore tantamount to consent by all parties to a hearing in vacation. This contention is completely answered by the decision in Mississippi State Highway Dept. v. Haines, 162 Miss. 216, 227, 139 So. 168. The board of supervisors in attempting to convene and transact business on this unauthorized day was no more than an assemblage of private persons without official jurisdiction either as to parties or as to subject-matter. So far as this record is concerned the controversy is still a pending matter before the board of supervisors, no final disposition having been made of it by the board; and hence nothing has been done upon which an appeal could be taken.
Affirmed.