Opinion
No. 32082.
March 16, 1936.
1. APPEAL AND ERROR.
On remand of cause after reversal of judgment of dismissal for insufficiency of plea to merits, trial court committed no error in granting defendant leave to plead further and overruling motion to strike plea in abatement; filing of such plea being in legal effect withdrawal of plea of general issue then on file.
2. COUNTIES.
State auditor may sue county for cost of auditing its books, in absence of disagreement between auditor and county board as to amount thereof, though statute imposing duty to collect such costs does not expressly confer power to sue therefor; such power being necessarily implied (Code 1930, sections 3747-3754).
3. COUNTIES.
Statute, requiring submission of itemized statement of cost of auditing county's books to Governor and declaring latter's decision thereon final, requires state auditor to submit such statement to Governor before instituting proceedings against county to collect such cost, if auditor and county board disagree as to amount thereof. (Code 1930, section 3748).
4. PLEADING.
Plea in abatement on ground that state auditor's suit against county for expense of auditing its books was premature because plaintiff had not submitted demand to Governor held bad on demurrer, in absence of allegation of disagreement between parties as to amount of charge (Code 1930, section 3748).
5. PLEADING.
Rule that demurrer to replication to plea may be extended back to plea and sustained held inapplicable, where county supervisor's order and facts rendering it void and ineffective as basis for defendant county's plea of res judicata, demurred to by plaintiff, first appeared in replication to such plea according to record on appeal, so that Supreme Court's ruling on plaintiff's subsequent appeal that demurrer to plea in abatement should have been sustained did not entitle appellant to final judgment (Code 1930, section 548).
APPEAL from the circuit court of Winston County. HON. JOHN F. ALLEN, Judge.
Lotterhos Travis, of Jackson, for appellant.
The state auditor has the right to maintain the action.
Section 3748, Code of 1930.
Section 3753 does not constitute a limitation on the state auditor's right to recover the cost of making an audit.
Price v. Gillis, 168 Miss. 139, 151 So. 157.
It was not necessary to submit the matter to the Governor.
Even if a disagreement as to the amount had been pleaded in this case, we submit that under the terms of the statute the county could not plead the failure to submit the matter to the Governor as a defense, because the matter of submission to the Governor is a right granted to the county if it disagrees with the amount of the charge, and is not an obligation resting upon the state auditor. It is apparent that this is the intention of the statute when the statute provides that the state auditor shall be the judge of the cost of making the audit.
So far as we can ascertain there is no decision of this court or any other court which will throw any light on this particular point. The only thing to do is to read the applicable part of the statute and consider what the true intent and purpose of the legislature was. We think that it is perfectly clear from the language used that the intention was to give a right to the dissatisfied party of appealing to the governor, and that it was never intended to make it a prerequisite to the filing of a suit to collect the cost of an audit that the matter must have been submitted to the governor.
As pleas in abatement do not deny and yet tend to delay the trial of the merits of the action, great accuracy and precision are required in framing them. They should be certain to every intent, and must, in general, give the plaintiff a better writ by so correcting the mistake objected to as to enable the plaintiff to avoid a repetition of it in forming his new writ.
Shipman on Common Law Pleading, page 399.
Section 532 of the code requires that pleas in abatement, where the matter pleaded does not appear on record, shall be verified by the oath or affirmation of the party defendant, or some other credible person. This affidavit was not made to the plea in abatement in this case, but it was simply signed by the attorneys for the county.
Moore v. Knox, 46 Miss. 602.
Upon sustaining the demurrer to the plea in abatement, the order should be in the form of a judgment for the plaintiff.
Section 548, Code of 1930.
In proper cases a demurrer to a replication relates back to the special plea.
State v. Washington Steam Fire Co., 76 Miss. 449, 24 So. 877; Y. M.V. v. Adams, 77 Miss. 780, 29 So. 959.
We anticipate that the appellee will attempt to answer our demand for a final judgment with the claim that the general issue plea, which was filed in March, 1934, still presents an issue of fact to be disposed of in this case prior to a final judgment. But, unfortunately for the appellee, this court has expressly ruled to the contrary.
McNeely v. Y. M.V., 119 Miss. 897, 81 So. 641.
Rodgers Prisock, of Louisville, for appellee.
The state auditor does not have the right to sue a county.
171 Miss. 404, 157 So. 909; Section 3753, Code of 1930.
The state auditor is under section 3753 as chief inspector, authorized to sue officers and employees named thereunder, but it is just as evident that such section does not give the auditor the authority to sue a county or any political subdivision of the state.
Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318; White v. Lowery, 139 So. 874.
Counties are immune from liability to the same extent as the state, and suit cannot be maintained for a liability unless authorized by some statute, expressly or by necessary implication.
Appellant admits that the appellant does not rely upon section 3753 in any sense whatsoever for his authority to maintain this cause of action, that he has no right to sue the county under this section, and states why he has no right to sue thereon. Where then is this authority giving the auditor right to sue the county for fees for his audit, when that section expressly states that when his audit discloses misfeasance, etc., the chief inspector in his capacity as state auditor shall not be entitled to any commission or fee for the collection of any amounts disclosed by any examination or service made under the provisions of this section, or by any of the inspectors hereunder whether the collections were made by him, or any attorneys or deputies that he may employ in his capacity as state auditor or whether the said collections were made by the attorney-general or a district attorney.
The auditor does not have the right to go out and get attorneys to annoy and harass the county with suits in court. The auditor's department is a sub-division of this state, just as is the county, and the legislature has in its wisdom fixed a way for a quasi-judicial determination of disputes arising between this very department and the county.
Section 3748, Code of 1930.
There is no mention in the section that the auditing department may sue the county, and the only system that it may be collected is by referring the matter to the governor.
City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Jackson County v. Neville, 131 Miss. 599, 95 So. 626.
The part of section 3748 which says that the matter shall be left to the governor and the decision of the governor shall be final is a special enactment providing a mode of settling disputes between the county in its capacity as part of the state and the auditor's department in its capacity as a part of department of the state; or in other words, disputes arising between departments of state.
25 R.C.L. 1010; White v. Lowery, 139 So. 876; Gully v. State Hwy. Dept., 145 So. 351.
Section 134, Constitution of the State of Mississippi, provides of the office of auditor and section 113 and section 115 gives some of the duties of the office, but there is no place giving the auditing department the right to employ outside attorneys to sue a subdivision of the state.
Henry v. State, 88 Miss. 843, 39 So. 856.
We submit that if the auditor's department had ever had the authority to bring a suit against a subdivision of the state the statute, sec. 3748, definitely prevents it (where it is for services); because it states that in the event that there is a disagreement the matter "shall be left to the governor."
The department desiring to impose such a cost or charge upon another is the party to submit it to the governor, and with his approval the case becomes a closed book. The attorney-general then upon the refusal of the department so charged brings mandamus proceedings to require the department to perform the duty fixed by the statute. The governor's approval in this case is in effect an audit and allowance, and the court has held that in that case the proper procedure is mandamus.
Section 2348, Code of 1930; State v. Gillespie, 142 So. 747; Price v. Gillis, 168 Miss. 139, 151 So. 157.
The only tribunal open to these gentlemen is the governor's office and when he passes upon it they need not doubt that the amount fixed by the governor will be paid before the attorney-general can force them to so do by mandamus.
Where this court reverses the judgment of the circuit court overruling the plaintiff's demurrer to a plea, the judgment final will not be entered here against the defendant, but the case will be remanded so as to allow the defendant to plead.
Trotter v. Parker, 38 Miss. 437.
This is the second appeal of this cause, which is an action by the state auditor against Winston county to recover, for the use and benefit of the state accounting department, the expense incurred in auditing the books of said county. On the first appeal there involved only the sufficiency of a special plea of res judicata and the replication thereto, and a more detailed statement of the averments of the plea and replication is necessary to make clear our views upon one point raised on the present appeal.
As the basis of its special plea of res judicata, the county merely alleged therein that upon consideration of the account sued on, the board of supervisors, a court of competent jurisdiction of the parties and subject-matter, entered an order allowing the appellant the sum of two hundred twenty-one dollars and twenty-five cents, and that appellant accepted a county warrant for the sum so allowed in payment of said claim. The order making this allowance was not set forth either in the body of the plea or as an exhibit thereto. To this plea the appellant replied that the said order of the board of supervisors was void for the reason that (1) it failed to show and disclose the purpose for which the allowance was made, as provided by law; and (2) because it failed to specify the statute under which the allowance was made. This replication further averred that an attempt of the clerk of the board of supervisors to amend the said order, after the final adjudication of the board, by entering thereon the Code section under which the allowance was made, was unauthorized and ineffective, and that the order was not res judicata for the further reason that it did not adjudicate that the allowance of the lesser amount was in final settlement of the account due by the county. A copy of the order of the board making the allowance of two hundred twenty-one dollars and twenty-five cents was set forth in the replication.
The court below sustained a demurrer to this replication to the special plea of res judicata, and, upon the appellant declining to plead further, the cause was dismissed. On appeal this court held that the order of the board making the allowance of two hundred twenty-one dollars and twenty-five cents was void on account of its failure to set forth the statute under which it was made, and that it, therefore, furnished no basis for the plea of res judicata, and the judgment entered in the court below dismissing the cause was reversed and the cause remanded.
Upon remand of the cause, leave having been first granted, the appellee filed a further plea in abatement of the action, alleging (1) that the state auditor was without statutory authority to maintain the suit, and (2) that the suit was prematurely brought because the said demand had not been first submitted to the governor for approval. The appellant first filed a motion to strike this plea, which was overruled, and then a demurrer thereto, which was likewise overruled; and, upon the appellant declining to plead further, the cause was again dismissed.
The first point raised by appellant is that the court erred in overruling the motion to strike the plea in abatement, which was filed by leave of the court after a plea to the merits had been by this court held to be insufficient and the cause remanded, and at a time when a plea in bar was on file. Upon the remand of the cause, the court committed no error in granting the appellee leave to plead further, and the filing of the plea in abatement was, in legal effect, a withdrawal of the plea of the general issue then on file. McNeely v. Y. M.V.R.R. Co., 119 Miss. 897, 81 So. 641.
The next question presented is whether or not there is any statutory authority vested in the state auditor to sue the county for the expense of making a general audit of the county books and records. By sections 3747 to 3754, inclusive, of the Code of 1930, there is established a state accounting department under the direction and control of the state auditor, who is therein designated as the chief inspector and supervisor of public offices and public institutions. Section 3748, Code 1930, provides a method of accumulating a fund in the state treasury for the support of the department by requiring each board of supervisors, levee board, and public institution owned or supported in whole or in part by the state, to contribute a fixed sum for that purpose upon notice so to do from the said chief inspector; each county, board, or institution so contributing being thereafter entitled to credit for said sum upon any account for services rendered to it. By this method, and by the payment of the expenses and costs of specific audits, as hereinafter pointed out, a revolving fund is provided out of which the state auditor is required to operate the accounting department and pay the expenses of the department.
This section provides that upon completion of the work of auditing "for any state office, public institution, boards of supervisors, county officer or levee board, the said chief inspector shall render to the state officer, board of supervisors, levee board or public institution liable for such costs an itemized statement thereof as soon after the same was incurred as practicable, and the costs and expenses of the work and services under the provisions of this article so rendered by the said chief inspector shall be the actual estimated prorated cost thereof under the operation of this article, but the said chief inspector shall be the judge of the cost thereof, and in the event of a disagreement between him and the board of supervisors, public institution or levee board, the matter shall be left to the governor and the decision of the governor shall control and be final." It is therein further provided that, "all expenses and costs of inspecting and auditing the allowances and expenditures of boards of supervisors and all expenses of examining and auditing the county offices shall be paid on the said prorated estimated cost thereof, as aforesaid by the boards of supervisors of the respective counties and all of the expenses relating to the auditing and inspecting shall be paid by the respective institutions upon the completion of the work in said institutions out of the general support fund of such institution," and further that these expenses and costs "shall be paid within forty days after the notice of the said itemized statement thereof, as hereinbefore provided, with the same damages thereon for delay in payment as hereinbefore provided, and shall be paid to the state treasurer to the credit of the said auditing department fund, as hereinbefore provided for."
The above-quoted provisions of this section require the chief inspector, the state auditor, to make an itemized statement of the cost of inspecting and auditing the allowances and expenditures of boards of supervisors, and the cost of examining and auditing county offices, on an actual estimated prorated basis, and makes him the judge of the amount of such costs, and in the absence of any disagreement between him and the board of supervisors as to the correctness of such statement, it is made the duty of the board of supervisors to pay said amount within forty days after receipt of notice of said itemized statement. By this section, it is made the duty of the chief inspector to collect this prorated cost, and the stated damages thereon if not paid within the time prescribed therefor, and cover the same into the state treasury to the credit of the state auditing department. It is true that the section does not expressly confer on the chief inspector the power to sue the county or other board or state agency to collect this prorated cost of an examination and audit made under the provision of the act, but the power to enforce collection thereof by a suit is necessarily implied from the express imposition of the duty to collect. Consequently, we conclude that where there is no disagreement between the state auditor and the board of supervisors of a county as to the proper amount of the prorated cost of an audit of the expenditures of the board and the county books, the state auditor may maintain a suit for such cost and expenses in the event the board fails or refuses to pay the same.
In case of a disagreement between the state auditor and the board of supervisors of a county or other state agency as to the correctness of the amount of the cost prorated to it upon completion of any audit required by the act, the said section 3748 requires that the itemized statement of such cost and expense shall be submitted to the governor, and that the decision of the governor thereon shall control and be final. As to the effect of this provision, it is the contention of the appellant that the matter of submission to the governor is a right granted to the county if it disagrees with the amount of the charge, and is not an obligation resting upon the state auditor; or, in other words, that the purpose of this provision of the statute is to give the board of supervisors or public institution, involved in any particular case, the right to appeal to the governor and submit the matter to him for his investigation and action thereon, if it is dissatisfied with the amount of the cost of an audit as fixed by the state auditor.
We do not agree with this view as to the meaning and effect of this provision. We construe this provision to require that, in case of a disagreement between the state auditor and the particular board, or public institution, as to the correct amount of the cost of an audit, the state auditor shall submit the statement of such cost to the governor for his action thereon before instituting proceedings to enforce the collection thereof. In case of such a disagreement, submission of the matter to the governor, and his action thereon, is a condition precedent to the right of the state auditor to enforce payment of the charge, and the amount finally fixed by the governor is the measure of his right of recovery.
The mere failure or refusal to pay the amount originally fixed by the state auditor, however, does not necessarily evidence a disagreement as to the proper amount of the charge. The board may admit the correctness of the charge and still fail to pay all or a part of the claim; and in the absence of any disagreement between the respective parties, the auditor may proceed to enforce collection without submission or allegation of submission to the governor. In the case at bar the declaration merely alleged that the work was performed, the charge made, certain payments made on account, and that the county had failed and refused to pay the balance after demand therefor. The appellant was not required to negative a disagreement in his declaration, and the plea, which sought an abatement of the action on the ground that the payment sued on had not been submitted to the governor for his action thereon, does not allege any disagreement between the parties as to the amount of the charge. The record merely discloses a partial payment of the claim filed by the state auditor and a failure or refusal to pay the balance; and, therefore, the court was in error in overruling the demurrer to the plea in abatement, on the ground that the suit was prematurely brought because the demand had not been submitted to the governor by the state auditor before the institution of the suit.
The appellant next contends that under the provisions of section 548, Code 1930, a final judgment should be entered in his favor, in the event it is held that the demurrer to the plea in abatement should have been sustained. Section 548, Code 1930, provided that: "If the plaintiff demur to the plea of the defendant, and the demurrer be sustained, the judgment shall be that the defendant do answer over to the declaration; but he shall be compelled to plead to the merits, and the plaintiff shall not be delayed of his trial. And if the plea then filed be demurred to, and such demurrer be sustained, further leave to plead shall not be granted."
It is contended that when, on the former appeal, it was held that the demurrer to the replication to the special plea should have been overruled, that was equivalent in law and fact to sustaining a demurrer to the special plea, or, in other words, that the demurrer to the replication should have been extended back to the special plea, and that, consequently, under the specific provisions of said section 548, a final judgment for the appellant should follow the ruling of this court that the demurrer to the plea in abatement should have been sustained. In the record on the first appeal, the order of the board of supervisors which constituted the basis of the plea of res judicata, and the facts admitted by demurrer which rendered the order void and ineffective as a basis of the plea, first appeared in the replication to the special plea of res judicata. Consequently, we do not deem it a proper case for the application of the rule that a demurrer to a replication to a plea may be extended back to the plea and sustained; and such was the effect of the judgment of the court on the former appeal.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.