Opinion
No. 38170.
October 8, 1951.
1. Boards of supervisors — liability for money spent for lawful object.
Members of county boards of supervisors are not personally liable for money applied by them to a lawful object over which the supervisors had jurisdiction, no fraud being shown, even though they did not comply with the law as to the manner or method of making the appropriations.
2. Boards of supervisors — roads — statute authorizing construction — incidental acts necessary to accomplish purpose.
Where a statute expressly authorizes the board of supervisors to construct, repair and improve roads it confers authority, in the absence of some express prohibition, to do all incidental acts necessary to accomplish the ultimate object, and it would include the power, therefore, to rent draglines, to mine gravel from the pits and to hire trucks and labor to haul it from the pits and place it upon the roads. Chap. 219 Laws 1946.
3. Boards of supervisors — roads — statute appropriating money for — construction of provision prohibiting purchase of machinery.
Where a special statute appropriating money for the construction, repair and improvement of the roads contained a section prohibiting the expenditure of any of the funds for machinery or other equipment or tools, the prohibition is to be construed as applying only to the outright purchase of such articles.
4. Boards of supervisors — purchase price of gravel laid on the roads — personal liability none, although contract not lawfully let.
When the board of supervisors were acting under a statute authorizing them to construct, repair and improve the roads, payment by them for gravel placed on the roads by the contractor at the stipulated price, whether broken down into parts or by the unit price per yard, imposes no personal liability upon the members of the board, the expenditure being for an object authorized by law even though the law was not complied with in letting the contract for the purchase of the gravel.
Headnotes as approved by Arrington, C.
APPEAL from the chancery court of Hancock County; D.M. RUSSELL, SR., Chancellor.
Cornelius J. Ladner, and Creekmore Creekmore, for appellant.
I. The official records of the board cannot be impeached by parol evidence. Bridges Hill v. Clay County, 58 Miss. 817; Panola County v. Carrier, 92 Miss. 148, 45 So. 426; Humphreys County v. Cashin, 128 Miss. 236, 90 So. 838; Mullins v. Shaw, 77 Miss. 900, 27 So. 602; Smith v. Board of Supervisors, 124 Miss. 36, 86 So. 707; Watkins v. State Board of Pharmacy, 170 Miss. 26, 154 So. 277; Martin v. Newell, 198 Miss. 809, 23 So.2d 796.
II. The appropriations were to objects not authorized by law.
It seems rather clear that in handling the funds thus donated to the County the board violated practically every provision of the statute which undertook to set forth the terms and conditions under which said moneys might be expended, and the limitations placed thereon. Some of these violations may perhaps be treated as mere irregularities or careless or negligent acts but not so as to certain of the allowances made to Chester C. Lee. The allowances for drag line hire and for hire of trucks were not expenditures for labor or materials; they obviously constituted a diversion of these moneys from the purposes designated by statute to a purpose not authorized by statute. The allowances were to an object not authorized by law within the meaning of Secs. 2872 and 2944 Code 1942.
In Paxton v. Arthur, 60 Miss. 832, the declaration set forth sixty-two separate appropriations alleged to have been made to objects not authorized by law. A number of these appropriations were for lumber used in the building and repairing of bridges; a number for the employment of surveyors to lay out and survey public roads; and the balance were for work done in ditching, draining, grading or otherwise repairing public roads of the county. The court held that all of these appropriations except those for lumber were to objects for which the law did not authorize the board to make expenditures, and, therefore, Arthur and his bondsmen were liable.
In Miller v. Tucker, 142 Miss. 146, 105 So. 744, the Court carefully analyzed the doctrine of Paxton v. Baum, 59 Miss. 553, in the light of statutes subsequently enacted; and being equally divided refused to overrule the case, and reannounced and applied generally the principle that members of the board are not personally liable for appropriations to objects authorized by law, but are liable if they be to objects not authorized by law. In that case the Court considered numerous allowances of varied natures, holding some to be lawful appropriations and others to be objects not authorized by law. These examples furnish important guides for determination of the often difficult problem of whether particular allowances are or are not, such appropriations as would subject the members of the board to personal liability.
It is to be remembered that funds appropriated by the Legislature to Hancock County and other counties under the 1946 statute are donations. Accordingly, the Legislature as it had the power to do, carefully imposed conditions, restrictions and limitations upon the use of those funds; and particularly designated the purposes for which the money should be expended, to-wit, for "materials and labor in construction and improvement of county roads and bridges selected by the Board of Supervisors of each county." If we but apply the rule of law announced in Paxton v. Baum, it would seem clear that the allowances here made by the board were to objects not authorized by law.
Gravel is a material commonly used in road building. Therefore as to the allowances totalling $4,378.60 made to Chester C. Lee for the purchase of gravel at 20c per yard perhaps the board is protected under the doctrine of Paxton v. Baum, although these allowances were made in flagrant disregard of the provisions of the statute. But as to the allowances for drag line hire and hire of trucks and drivers, it would seem to be clear that these appropriations were to objects not authorized by law. Truck hire and drag line hire, by no stretch of the imagination, can be considered to be materials or labor used on the roads. No where in the statute is there any provision that the funds may be spent for drag line hire or rental of trucks or other machinery, but on the contrary the statute expressly prohibits the expenditure of any of the funds "for machinery or other equipment or tools". (Sec. 11) The action of the board in making these allowances was obviously a diversion of this fund from its legitimate object to objects prohibited by the statute. Under the doctrine of Paxton v. Baum the members of the board and their bondsmen are liable.
Gex Gex, Robt. L. Genin, D.M. Russell, Jr., and Wallace, Greaves Wallace, for appellees.
I. Pertinent provisions of Constitution and pertinent statutes. Sec. 170 Constitution 1890, as amended; Secs. 2890, 2932, 2934, 2935, 2941, 2944, 8330, 8354; Chap. 219 Laws 1946.
II. Full jurisdiction over county roads is invested in boards of supervisors by State Constitution and by statute, and Legislature is powerless to take it away or to materially change it. Paxton v. Baum, 59 Miss. 531; Board of Supervisors v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963; Board of Supervisors v. Callender, 128 Miss. 159, 90 So. 722; State v. Board of Supervisors, 141 Miss. 701, 105 So. 541; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Board of Supervisors v. Self, 156 Miss. 273, 125 So. 828; Sec. 170 Constitution 1890, as amended.
Amendment of Section 170 of State Constitution in 1942 empowering Legislature to place certain designated public roads under jurisdiction of State Highway Commission neither takes away, nor affects, the full jurisdiction of boards of supervisors over all county roads. Alabama V. Ry. Co. v. Graham, 171 Miss. 695, 157 So. 241; Stigall v. Sharkey County, (Miss.), 42 So.2d 116.
Legal power of boards of supervisors to repair, reconstruct and maintain county roads under its jurisdiction is found, first, in Sec. 8330, Code 1942, and, secondly, in Chap. 219, Laws 1946.
There is a broad legal distinction between board's legal power to repair, reconstruct and maintain roads and its full jurisdiction over them. National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; State v. Green, 111 Miss. 32, 71 So. 171; Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451.
Enactment of Chap. 219, Laws 1946 did not remove county roads from jurisdiction of board of supervisors. Paxton v. Baum, supra; Board of Supervisors v. Black Creek Drainage Dist., supra; Board of Supervisors v. Callender, supra; State v. Board of Supervisors, supra; Miller v. Tucker, supra; Board of Supervisors v. Self, supra; Havens v. Hewes, 128 Miss. 650, 91 So. 397.
Inasmuch as no fraud or corruption is charged, members of board of supervisors are not personally liable for board's appropriation of county funds to county roads, over which it has jurisdiction, even if board made mistakes in the exercise of its legal power in relation to the subject matter. Paxton v. Baum, supra; State v. Green, supra; National Surety Co. v. Miller, supra; Causey v. Gilbert, supra; Barnett v. Woods, 196 Miss. 678, 18 So.2d 443.
III. Reservation of legislative power to regulate exercise of legal power of boards of supervisors pertaining to repair, reconstruction and maintenance of county roads under its jurisdiction in Sec. 170 of State Constitution does not empower legislature to take away or materially change board's general jurisdiction over such roads. Miss. Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 574; Chap. 219 Laws 1946; Secs. 8330, 8354 Code 1942.
Last above cited statutes cannot be construed so as to impair full jurisdiction of boards of supervisors over county roads under its jurisdiction. Board of Supervisors v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963; State v. Board of Supervisors, 118 Miss. 867, 72 So. 700; Board of Supervisors v. Callender, 128 Miss. 159, 90 So. 722; Havens v. Hewes, 128 Miss. 650, 91 So. 397; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Board of Supervisors v. Self, 156 Miss. 273, 125 So. 828; Board of Supervisors v. Blissitt, 200 Miss. 645, 27 So.2d 678.
Last above mentioned statutes relate solely to board's legal power pertaining to the repair, reconstruction and maintenance of county roads under its jurisdiction; there is a broad legal distinction between board's legal power and its general jurisdiction over subject matter. Paxton v. Baum, 59 Miss. 531; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; State v. Green, 111 Miss. 32, 71 So. 171; Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451.
Boards of supervisors belong to judicial branch of Government. Paxton v. Baum, supra; Haley v. State, 108 Miss. 899, 67 So. 498; Jackson Equipment Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734; Board of Supervisors v. Blissitt, supra.
Boards of supervisors are courts of limited jurisdiction, but orders pertaining to matters within their jurisdictions are judgments of courts of competent jurisdiction. Jackson Equipment Service Co. v. Dunlop, supra; Board of Supervisors v. Blissitt, supra; Clayton v. Pedan, 198 Miss. 163, 21 So.2d 823.
Members of boards of supervisors in discharge of their official duties and exercising judicial functions are exempt from civil liability on same principle which exempts judges of courts in the judicial system from civil liability for errors and mistakes made in the exercise of their legal powers within their respective jurisdictions. Paxton v. Baum, supra; Miller v. Tucker, supra; National Surety Co. v. Miller, supra; Causey v. Gilbert, supra; State v. Green, supra; Bradley v. Fisher, 13 Wall. 335, 20 L.E. 651; Kendall v. Stokes, 3 How. 87, 11 L.Ed. 506.
This Court looks with generosity and indulgence upon acts of boards of supervisors in the making and entry of orders in the Minutes of their meetings. Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Peoples Bank v. Attala County, 156 Miss. 560, 126 So. 192; Martin v. Board of Supervisors, 181 Miss. 363, 178 So. 315; Hall v. Franklin County, 184 Miss. 77, 185 So. 591.
IV. Board of supervisors having jurisdiction of entire subject matter, board members are not liable civilly for appropriations and allowances of the county funds complained of, even if made contrary to Chap. 219, Laws 1946. Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451; Peoples Bank Liquidating Corp. v. Beashea Drainage Dist., 199 Miss. 505, 24 So.2d 784; Miss. Road Supply Co. v. Hester, 184 Miss. 839, 188 So. 281, 124 A.L.R. 574; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Chap. 219, Laws 1946; Secs. 1378, 1386 Code 1871; Secs. 2941, 2944, 8330, 8354 Code 1942.
That, absent fraud or corruption, members of a board of supervisors do not incur personal liability for appropriations and allowances to objects within board's jurisdiction is axiomatic in this State's jurisprudence. Paxton v. Baum, supra; Paxton v. Arthur, 60 Miss. 382; Miller v. Tucker, supra; National Surety Co. v. Miller, supra; Gully v. Bew, 170 Miss. 427, 154 So. 284; Gully v. Thomas, 171 Miss. 749, 158 So. 465; Causey v. Gilbert, supra, Barnett v. Woods, 196 Miss. 678, 18 So.2d 443; Peoples Bank Liquidating Corp. v. Beashea Drainage Dist., supra; Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 651; State v. Green, 111 Miss. 32, 71 So. 171.
Adjudications not in point cited by appellant in opposition to foregoing principles. Impertinent portions of Miller v. Tucker, supra; Brown v. Reeves, 129 Miss. 755, 92 So. 825; Walton v. Colmer, 169 Miss. 182, 137 So. 331; Gully v. Bridges, 170 Miss. 891, 156 So. 511.
V. Chap. 219, Laws 1946 must be construed in connection with subject matter and purpose for which enacted and in connection with Sec. 170 of State Constitution and Sec. 8330 Code 1942. Miss. Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 574; City of Holly Springs v. Marshall, 104 Miss. 752, 61 So. 703; Ashcraft v. Board of Supervisors, 204 Miss. 65, 36 So.2d 820; Simpson v. Burkett, 178 Miss. 44, 172 So. 329; State v. County School Board, 181 Miss. 818, 181 So. 313; Board of Supervisors v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241; Barnett v. Woods, 196 Miss. 678, 18 So.2d 43; Chap. 219 Laws 1946; Secs. 8330, 8354 Code 1942; Sec. 170 of State Constitution as amended.
VI. Response to appellant's complaint of the action of the court below in overruling his general objection to appellees' testimony. Paxton v. Arthur, 60 Miss. 832; Board of Supervisors v. Blissitt, 200 Miss. 645, 27 So.2d 678; Stigall v. Sharkey County (Miss.), 42 So.2d 116; Jackson Equipment Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734; Newman v. Foster's Heirs (Miss.), 3 How. 383; Robinson v. Lane (Miss.), 14 S. M. 161; Shirley v. Fearne, 33 Miss. 653, 69 Am. Dec. 375; Burns v. Marsh (Mo.), 128 S.W. 834; Miles v. Caldwell, 2 Wall. 35, 69 U.S. 17 L.Ed. 755; Steam Packet Co. v. Sickles, 5 Wall. 580, 72 U.S. 18 L.Ed. 550; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; Campbell v. Rankin, 98 U.S. 261, 25 L.Ed. 435; Hornbuckle v. Stafford, 111 U.S. 389, 28 L.Ed. 468; Norton v. Larney, 266 U.S. 511, 69 L.Ed. 413.
Carl N. Craig, State Auditor, instituted this suit against John B. Wheat and others comprising the Board of Supervisors of Hancock County and the surety on their bonds for an illegal expenditure of county funds. From a decree dismissing the bill of complaint, the auditor appeals.
On March 9, 1946, the legislature of this state enacted Chapter 219, General Laws of Miss. 1946, authorizing the repair, improvement, and construction by the supervisors of roads and bridges in the respective counties of this state and appropriating money to be paid to them by the state for such purposes. Under this act, Hancock County was entitled to the amount of $53,305.40, which sum was duly paid to it. The supervisors of Hancock County paid to one Chester Lee $37,187.50 of this sum. This amount was paid to Lee under an oral contract with the Board of Supervisors whereby Lee was to be paid the sum of $2.00 per yard for gravel placed by him upon the roads at points to be designated by the supervisors. When Lee's claim for gravel was presented for payment, the Chancery Clerk of Hancock County, prompted by his conception of the law, requested that the claim be broken down as follows: (1) the price of the gravel at the pits, (2) dragline hire, and (3) hire for trucks and labor in hauling the gravel. This was done and the accounts were duly allowed upon the minutes in the manner thus indicated. The total of the accounts so allowed aggregated the contract price of $2 per yard for the gravel placed by Lee upon the roads. The State Auditor, on the assumption that the sums thus paid to Lee were paid and appropriated to an object not authorized by law, brought this suit under Secs. 2944 and 2872, Miss. Code of 1942, to recover decrees against the supervisors and their surety for the total amount paid to Lee, which was the sum of $37,187.50, together with interest, damages, and attorneys' fees.
The sole question for decision on this appeal, in view of the conclusions we have reached, is whether this money was appropriated to a lawful or unlawful object. No fraud or wrongdoing is charged, nor is it claimed that the county did not get the full adequate benefit from the money so expended. We are of the opinion that this case is controlled by the rule announced in Paxton v. Baum, 59 Miss. 531, which case has been consistently followed. Miller, State Revenue Agent, v. Tucker, 142 Miss. 146, 105 So. 774; Causey, State Auditor, v. Jones, 193 Miss. 495, 10 So.2d 356; Causey, State Auditor, v. Gilbert, 193 Miss. 756, 10 So.2d 451. In this case, Paxton v. Baum, supra, this Court announced the rule that (Hn 1) supervisors were not personally liable for money where it was applied by them to a lawful object over which the supervisors had jurisdiction, no fraud being shown even though they did not comply with the law as to the manner or method of making the appropriation. Was the money in this case applied to a lawful object over which the supervisors had jurisdiction? The question can only be directed to the money expended for dragline hire, and the hire for trucks and labor in operating them. The county certainly had the power to purchase gravel for improving and constructing the roads. (Hn 2) Said Chapter 219 expressly authorizes and empowers the supervisors to construct, repair and improve the roads. That is the ultimate object of the law, and in the absence of some express prohibition, it logically confers authority and power to do all incidental acts necessary to accomplish the ultimate object. Specifically, it would include the power to rent drag lines, to mine the gravel from the pits, and to hire trucks and labor to haul it from the pits and place it upon the roads. The only prohibition against or restrictions upon the power of the supervisors to do these incidental acts is Sec. 11 of Chapter 219, which reads as follows: "The board of supervisors shall not expend any of said funds for machinery or other equipment or tools."
(Hn 3) Is this prohibition restricted to the purchase of machinery, equipment, or tools, or does it extend the power to hire or rent these in the repair or improvement or construction of rural roads? We think the restriction applies only to using the funds in the outright purchase of these articles. This is the natural meaning of the words as used in the statute and we are aware of no rule which requires us to apply such a broad construction to the quoted clause as to deny to the supervisors the power to expend funds for hire or rental of the dragline and trucks and to pay for labor to operate them as above set out. Rather do we think the objects to be accomplished, the circumstances with which we are dealing, call for a strict construction as applied to limitations upon the powers of the supervisors to accomplish the main object of the law.
If the legislature had intended this limitation to apply to rentals, hire, etc., in addition to the prohibitions against purchase, it very easily could have so stated in the act. The primary purpose of the act was the repair and improvement of the roads and bridges of the county — not to purchase machinery for the counties. In construing the power conferred by said Chapter 219, it may be helpful to have in mind that Sec. 170 of the constitution of this state vests in the supervisors "full jurisdiction over roads, ferries, and bridges," subject to regulation by the legislature. Sec. 2890, Code of 1942, provides: "The boards of supervisors shall have within their respective counties full jurisdiction over roads, ferries, and bridges * * *", subject to legislative regulation as set out in Sec. 170 of the Constitution. Again, Sec. 8330, Code of 1942, confers upon supervisors the power and authority, among others, to hire teams and implements and pay for labor, etc., "and may do any and all things necessary to be done to work, construct, reconstruct and maintain the public roads * * *." Keeping in mind then the comprehensive powers vested in the supervisors by said section of the constitution and the statutes discussed above, and construing these with Chap. 219 and the wording of Sec. 11 of said chapter (Hn 4) it is our conclusion that the supervisors here had the power to pay for the hire of draglines, trucks, etc., as shown by the accounts presented by Lee to the supervisors, although the clerk was mistaken in his request that they be broken down rather than made out for the purchase price of gravel placed on the roads. Such payments of the accounts as filed, not being to an illegal object but to an object authorized by law, no personal liability exists against the supervisors and their surety even though they did not comply with the statutory requirement as to the matter of letting the contract for the purchase of gravel. This conclusion renders it unnecessary to pass on the other assignment argued.
Affirmed.
This opinion is adopted as the opinion of the Court, and for the reasons therein indicated, the judgment of the court below is hereby affirmed.