Opinion
No. 31118.
March 19, 1934.
1. COUNTIES.
Loan of sixteenth section township funds, made by county supervisors, being for purpose authorized by law, held not within statute making supervisors liable for illegal allowances (Code 1930, section 259).
2. COUNTIES.
Loan by board of supervisors of sixteenth section township funds to individualize executing trust deed held not invalid for failure to observe proceedings required in statute (Code 1930, section 6764).
3. COUNTIES.
County supervisors, in making loan of sixteenth section township funds, were required to exercise discretion, and there was no personal liability merely because statutory directions were not followed in making loan (Code 1930, section 6764).
4. COUNTIES.
County supervisors, not following statutory directions in making loan of sixteenth section township funds, would only be personally liable on official bonds if it developed that security was insufficient to bring amount of loan with interest (Code 1930, section 6764).
5. COUNTIES.
Board of supervisors may extend loan of sixteenth section township funds where security is adequate, since object of funds is to produce revenue for schools (Code 1930, section 6764).
6. COUNTIES.
Statute respecting loan by county supervisors of sixteenth section township funds imposes its own liability for violating statute, and statute regarding supervisors' bonds does not apply where supervisors do not comply with statutory directions (Code 1930, sections 197, 6764).
7. COUNTIES.
County board of supervisors not making loan of sixteenth section township funds would not be liable for failure to collect funds loaned by predecessors in view of statute providing for collection by superintendent of education (Code 1930, sections 6764, 6770).
APPEAL from Chancery Court of Leflore County.
Barbour Henry, of Yazoo City, for appellant.
The statutes involved are all from the Mississippi Code of 1930 and will hereafter be referred to by number only, being sections 197, 259 and 2888, which three sections enact the liability of boards of supervisors on their bonds; sections 6986, 6988 and 6996 outlining the powers, duties and limitations of the state tax collector; sections 247 and 5987 authorizing supervisors to make loans out of sinking funds and section 6764 authorizing them to make loans out of sixteenth section funds.
Even though the court should hold the word "security" in the bond to make the board indemnitors it would not hold that the board is improperly joined in at this time. When the board commits an illegal act such as making a loan contrary to the statute or appropriating money to an object not authorized by law, they thereby breach their bond and lay themselves liable for the consequences which follow.
Dixon v. U.S.F. G. Co., 117 So. 245; Gully v. Copiah County, 147 So. 300.
Without conceding that the loans must be appropriations to objects not authorized by law, in order for the state tax collector to recover, we say unquestionably that they are allowances to objects not authorized by law, and Miller v. Gore, 146 Miss. 327, is our authority therefor.
Miller v. Tucker, 142 Miss. 146; Tallahatchie County v. Harrison, 75 Miss. 744.
The board were not exercising judicial discretion in completely ignoring the law and even if it should be considered that they were exercising judicial discretion they have no authority to abrogate the provision of the law governing the amounts they may lend on property of a certain value, and of having the property appraised.
Paxton v. Arthur, 60 Miss. 830; Paxton v. Baum, 59 Miss. 531.
The general law is that boards of supervisors speak only through their minutes and there is no presumption that they acted legally. Even without the express statutes, interpreted in Miller v. Gore and Miller v. Tucker, the presumption is that all these loans are illegal because the jurisdictional facts to make them legal are not recited in the supervisors' minutes.
Smith County v. Mangum, 127 Miss. 192; Tallahatchie v. Yocona, 148 Miss. 182; Amite County v. Mills, 138 Miss. 322; Smith et al. v. Board of Supervisors, Tallahatchie County, 124 Miss. 36; McPherson v. Richards, 134 Miss. 282; Supervisors Harrison County v. Gully, 122 Miss. 46; Russell v. Copiah County, 153 Miss. 459; Board of Supervisors v. Snellgrove, 103 Miss. 898.
All defendants are liable even if these loans are not classified as objects not authorized by law.
Sections 4738 and 6986, Code of 1930; Gully v. Copiah County, 147 So. 300; Miller v. Tucker, 142 Miss. 146.
The case of Gully v. Copiah County, 147 So. 300, holds that section 6986 of the Laws of 1930 authorizes the state tax collector to do all acts which were authorized by the Code of 1906, section 4738, which section includes the words "and shall have a right of action and may sue at law or in equity in all such cases where the . . . county . . . has the right of action or may sue." These words do not actually appear in the Code of 1930 but by this decision it is held that section 6986 has the same meaning.
Walton v. Colmer, 147 So. 331.
The court has also held that the state tax collector has the same rights as the district attorney.
Greaves v. Hinds County, 145 So. 900; West Feliciana Railroad Co. v. Stockett, 21 Miss. 395; Garrett v. Baumont, 24 Miss. 377; Boyd v. Barringer, 23 Miss. 269; Murray v. Gibson, 15 Howard 421, 14 L.Ed. 755.
Maynard, FitzGerald Venable, of Clarksdale, for appellees.
The appropriations were to objects authorized by law.
Paxton v. Baum, 59 Miss. 531; Howe v. State, 53 Miss. 57; Brown v. Reece, 129 Miss. 755; National Surety Company v. Miller, 155 Miss. 115; Miller v. Tucker, 142 Miss. 146.
The appropriations being to objects authorized by law, there is no liability on either the lending or subsequent boards.
Miller v. Tucker, 142 Miss. 146; Paxton v. Baum, 59 Miss. 531.
The holding of Miller v. Tucker, decided November 2, 1925, is reinforced as a precedent by the fact that since that decision the statutes involved and receiving the construction, have been reenacted by the legislature in the Code of 1930, without change.
It is settled in this state that where the supreme court has construed a statute and it is reenacted afterwards by the legislature without material change, the interpretation or construction given by the court is adopted by the legislature and becomes a part of the reenacted statute.
Burk v. Moody, 141 Miss. 370, 378; Wamack v. Central Lbr. Co., 131 Miss. 201; Henry v. Henderson, 103 Miss. 48; Haner v. Yazoo Delta Lbr. Co., 100 Miss. 349; White v. I.C.R. Co., 99 Miss. 651; Shotwell v. Covington, 69 Miss. 735; Hoy v. Hoy, 93 Miss. 732, 17 Ann. Cas. 1137, 25 L.R.A. (N.S.) 182, 136 A.S.R. 548.
If the rule of section 6764, applicable to the loan of sixteenth section funds, is by construction held applicable to the loan of township, county and sinking funds, the bills cannot be sustained because it appears that no cause of action has yet arisen.
Sturges v. Bank of Circleville, 11 Ohio St. 153, 78 A.D. 296; Tucker v. Hoppack, 6 Wall. (U.S.) 94; Hay v. Hansborough, Free. Ch. 533; Dixon v. U.S.F. G. Co., 117 So. 245; Pierce v. Merrill, 128 Colo. 464, 61 P. 64; Cowles v. Pick, 55 Conn. 251, 3 A.S.R. 44; Jenkins v. Wilkinson, 107 N.E. 707, 22 A.S.R. 911; Cowan v. Roberts, 134 N.C. 415, 101 A.S.R. 845; Bebee v. Kirkpatrick, 321 Ill. 612, 47 A.S.R. 891; Cobb v. Vaughn, 141 Va. 100, 43 A.L.R. 177; New York Securities Co. v. Ins. Co., 73 Fed. 537; Allen v. Rundle, 50 Conn. 9, 47 A.R. 599; Duran v. Bowen, 73 Iowa, 573, 25 N.W. 644; Corpus Juris, Guaranty, section 123; Baruche v. Loutitt, 104 Colo. 230, 37 P. 902; Aldrich v. Chubb, 35 Mich. 350; Dewey v. Clarke Inv. Co., 48 Minn. 130, 31 A.S.R. 623; Dutton v. Pyle, 195 Pa. 8, 45 A. 429; 43 A.S.R. 177; 31 A.S.R. 623; Edwards v. Gaulding, 38 Miss. 118; Holiman v. Bennett, 44 Miss. 322.
Where judicial decisions may fairly be presumed to have entered into the business transactions of a country and to have been acted upon as a rule of contract or property, it is the duty of the court to adhere to such decision — without regard to how it might be inclined to decide if the question was new.
15 C.J., Courts, sec. 342, and note 41; Robertson v. Puffer Mfg. Co., 112 Miss. 890; Becker v. Bank, 112 Miss. 819; Forest, etc., Co. v. Buckley, 107 Miss. 897; Webb v. R.R. Co., 105 Miss. 175; Lombard v. Lombard, 57 Miss. 171; Boon v. Bowers, 30 Miss. 246; Flannery v. Givens, 21 Ky. L. 705, 52 S.W. 962.
The tax collector is without authority to bring suits against either lending or subsequent boards.
The tax collector has only such authority as is conferred by statute.
Miller v. Coahoma County, 157 Miss. 404; Sections 6986 and 6988, Code of 1930; Sections 4738 and 7056, Hemingway's 1917 Code.
The liability, if any, being for consequential damages, the bills cannot be sustained because they do not show that the alleged delicts can or will cause damage, or how much the damage or loss will be.
Clarke v. Miller, 142 Miss. 123.
Even though it could be held that the lending boards made appropriations to objects not authorized by law and the bills could be sustained against them, they could not be sustained against subsequent boards because they made no appropriations, but their delict, if any, consisted in failing to collect a chose in action.
Miller v. Gore, 146 Miss. 327.
Officers are presumed to have done their duty.
Board of Supervisors v. Jones, 103 Miss. 602; State v. Ratcliff et al., 108 Miss. 242; Pierce v. Sharp, 118 Miss. 107; Revenue Agent v. Nursery Co., 121 Miss. 14.
Under any statute or liability other than section 259 good faith is a defense though the action taken be contrary to law and the decision of the board erroneous in law or fact.
National Surety Co. v. Miller, 142 Miss. 146; Paxton v. Baum, 59 Miss. 531; State v. Green, 111 Miss. 32; Bell v. McKinney, 63 Miss. 189; Miller v. Gore, 146 Miss. 327; Bell v. Tombigbee R.R. Co., 4 S. M. 549; Buckingham v. Bailey, 4 S. M. 538; Pass v. McRea, 36 Miss. 143; Garnett v. Cowles, 39 Miss. 60.
Particularly as to the 1932 board, the bills cannot be sustained because it affirmatively appears that this board acted in good faith in failing to collect and was guilty of no delict.
National Surety Co. v. Miller, 142 Miss. 146.
The bills cannot be sustained because the order of the 1932 board is binding on the tax collector.
Williams v. Hardee Sons, 140 Miss. 155; Robertson v. Ry. Co., 154 Miss. 182; Moss et al. v. Board, 154 Miss. 765; Harris et al. v. Harris, 150 Miss. 729; 15 C.J., Courts, sec. 583.
The bills are multifarious.
Clarke v. Miller, 142 Miss. 123; Roberts v. Burnell, 117 Miss. 469; Reece v. Salmon, 99 So. 382; Carter v. Kimbrough, 122 Miss. 543; Col. Co. v. Humphrey, 64 Miss. 258; Roberts v. Stark, 47 Miss. 257; Griffith's Chancery, sections 200, 205 and 206.
Means Johnston, of Greenwood, for appellees.
The state tax collector must look to section 6988 for his authority to institute this action. He is limited by the section to cases in which he discovers that the board has appropriated money "to a purpose not authorized by law." In other words, his authority is confined to cases only of ultra vires acts of the board. He has no authority whatever, because the statute gives him none, to bring a suit in a case where the board has sought to do a lawful act but has failed to follow strictly the method provided by statute for doing such lawful act.
Greaves et al. v. Hinds County, 145 So. 900.
The state tax collector cannot maintain this cause because its institution is not authorized by statute.
The note and the deed of trust in the case at bar were valid, regardless of any irregularities in the making of the loan. The failure of the report of the committee to appear on the minutes is immaterial. Miss McClellan is bound by the note and by the terms of the deed of trust.
Littleworth v. Davis, 50 Miss. 403; Gaines v. Farris, 39 Miss. 403.
J. Morgan Stevens, of Jackson, for appellees.
The bills are multifarious.
Miller, State Revenue Agent, v. Gore et al., 146 Miss. 327, 111 So. 451; Clark v. Miller, 142 Miss. 123, 105 So. 502.
If a bill is multifarious, it is good practice to demur. Aside from the question of commingling an action based on contract and on tort, our court has expressly ruled that our statutes do not permit the unity in one bill of distinct and connected equities against disconnected defendants.
Georgia Railroad Co. v. Brooks, 66 Miss. 584, 6 So. 467; Columbus v. Humphries, 64 Miss. 158, 1 So. 232; Scottish Union National Ins. Co. v. Warren Gee Lbr. Co., 103 Miss. 816, 60 So. 1010; Guess v. Strahan, 106 Miss. 1, 63 So. 313; Nelms v. Brooks, 105 Miss. 74, 61 So. 985; Carter v. Kimbrough, 122 Miss. 544, 84 So. 251; Roberts v. Burwell, 117 Miss. 469; Griffith's Chancery Practice, sections 200 to 206; Ogden v. Amite County Bank, 139 Miss. 875, 104 So. 289; McDowell v. Federal Land Bank, 127 So. 288.
No liability as against the board members and the sureties on their bond has been alleged.
Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, 142 Miss. 146.
It is self evident that the loans made by the members of the board were matters within the jurisdiction of the board.
Dow v. Humbert, 91 U.S. 294, 23 L.Ed. 368; Commercial Trust Co. v. Burch, 267 Fed. 912; State ex rel. Sheldon v. Dahl, 165 Wis. 286, 162 N.W. 191; Farmers Merchants Bank v. Maines, 183 Fed. 42, 105 C.C.A. 329; Hupe v. Sommer, 88 Kan. 566, 43 L.R.A. (N.S.) 565; Hudson v. McArthur, 152 N.C. 454, 28 L.R.A. (N.S.) 115; DeYamfert v. Johnson, 54 Ark. 168, 15 S.W. 364; State v. Fleming, 124 Ind. 99, 24 N.E. 665; Missouri v. Rayburn, 22 Mo. App. 305.
In the Mississippi case of Lazana v. State, 109 Miss. 464, 69 So. 292, our court held that the measure of damages for which sureties on official bonds are liable in the absence of any statutory rule is just compensation for the injury actually sustained. The fact that the statute provides that the board members shall be liable on their official bonds for the safety of the funds must be read in connection with the specific requirements as to the conditions upon which any loan shall be made, or in other words, the entire statute must be read to determine the legislative intent.
It is elementary that the violation of a statute must be the proximate cause of the damage or loss complained of.
Gilman v. Central Vermont Railroad Co., 16 A.L.R. 1102; Davis v. Whiting Son Co., 18 A.L.R. 782.
The statute of limitations begins to run from the date on which plaintiffs might have commenced an action.
Central Trust Co. v. Meridian Lt. R. Co., 106 Miss. 431, 63 So. 575, 51 L.R.A. (N.S.) 151; Graham McNeil Co. v. Scarbrough, 135 Miss. 59, 99 So. 502; Johnson v. Pyles, 11 S. M. 189.
It is our understanding that the court below adopted this view and sustained demurrers in all cases where the loans were made more than six years prior to the filing of the bill. His action in that regard is correct and should be affirmed.
Argued orally by W.A. Henry, for appellant, and by W.W. Venable and J. Morgan Stevens, for appellees.
J.B. Gully, state tax collector, brought suit against Pearl McClellan and various members of the board of supervisors of Leflore county, and against Means Johnston, trustee, in a deed of trust given by Pearl McClellan to secure a loan made to her by said board of supervisors out of sixteenth section township funds, to collect said loan. The bill sets out the various members of the board of supervisors and the sureties on their official bonds for various years, and alleges that the state tax collector, in pursuance of his official duty, made an investigation of the allowances of the board of supervisors of Leflore county, and instituted suit, as was his duty, to collect said loan. It was then alleged that in December, 1926, said board of supervisors (all members being present) voted for and made an unlawful allowance of two thousand dollars in favor of Miss Pearl McClellan, said amount being ordered paid from the funds of Leflore county, said order being passed on December 6, 1926, and said loan being evidenced by note and deed of trust dated December 30, 1926; and that said warrant was issued on December 30, 1926, for said amount of said loan out of the sixteenth section township funds of Leflore county, Mississippi. A copy of said deed of trust and note and the order of the board of supervisors making said loan are made exhibits to the bill. It was then alleged that the minutes of the board of supervisors do not show that any appraisement, as required by law, was made as to the value of the property, the order showing only that the property was inspected, and it was not shown that a committee reported that the property was ample security for the loan, not showing the value to be twice the loan, and the title was not approved by an attorney. It was then alleged that there was due two thousand dollars principal, two hundred twenty dollars interest, and two hundred twenty-two dollars attorney's fee, as provided in the note; that the loan to Miss Pearl McClellan was illegally made; and that each of the defendants are personally liable for the sum of two thousand four hundred forty-two dollars, and that the complainant is entitled to a decree for said sum, irrespective of the conditions, provisions, and stipulations of the order of the board of supervisors in regard to the making of said loan, and that it was past due and unpaid. It was further alleged that, by reason of the fact that there was no law authorizing the loan to Pearl McClellan, same was an unlawful, unwarranted, and abusive assertion of power, and rendered each member of the board of supervisors personally liable, with the sureties on their official bonds, for the entire amount. It was further alleged that on December 5, 1932, as appears in the minutes, the board of supervisors passed an order extending said loan, and that it was their duty to safeguard, protect, and safely invest all money in the sinking fund or the funds of said township, and not to make any illegal expenditures thereof, and, if a mistake was made, to correct same, and require the collection of loans, and to repay the money into the sixteenth section township funds, which duty the board of supervisors failed and refused to perform. The bill then prayed for a decree against Pearl McClellan and the various members of the board of supervisors, and for a foreclosure of the deed of trust, and for such other and further relief as complainant might be entitled to.
The order of the board of supervisors making said loan in 1926 recited as follows:
"Came on for consideration the application for a loan of two thousand dollars out of the funds of township 21, range 2 west, of Leflore county, now available for that purpose, for a term of three years, providing for the payment of six per cent interest per annum, annually, upon the following described real estate, to-wit:
"Lot 4 of Nichols subdivision of block 7 of West Kimbrough Addition to the city of Greenwood, and the said application having been referred to the loan committee of the board, and said committee having reported in writing and recommended said application, and the board being duly advised is of the opinion that said property offered is ample security, and that it is for the best interest of the county that said loan be made.
"It is therefore considered and ordered that said application for said loan upon said terms be and the same is granted, upon the following conditions, to-wit: Applicant must execute deed of trust upon above-described real estate, which shall be a first lien, and proper principal and interest notes for time mentioned, and also file a policy of fire insurance in the sum not less than two thousand dollars with loss clause payable to Leflore county, and an abstract of title showing the fee simple and unencumbered title, the same shall be examined, passed upon by the attorney for this board, and upon his approval, the clerk of this board is ordered to issue warrant to close said loan."
At the September, 1932, meeting, the board passed an order extending this loan for ninety days; and at the December, 1932, meeting a special order was passed by the board extending this loan for a period of one year.
The bill was demurred to by a general and special demurrer, the general demurrer setting up that there was no equity on the face of the bill; the cause of action was barred by the statute of limitations, and that the state tax collector has no authority to institute or maintain this suit, and the special demurrer, that the bill is multifarious. The court below sustained the demurrers, from which the tax collector appeals.
By section 6764, Code 1930 (chapter 283, Laws 1924), it is provided that:
"All funds arising from the disposition of the sixteenth sections now on hand, and all such as shall accrue, together with all unexpended balances of annual rentals which shall accumulate, shall be loaned out for a term not exceeding five years, to be fixed by the board of supervisors, at a rate of interest not less than six per cent per annum, to be fixed likewise, the borrower in all cases securing the same by a first trust deed upon improved real estate, duly filed and recorded; or may be invested in the state of Mississippi bonds, municipal bonds, county or county district bonds, or bonds of the United States; but a loan shall not be made until after the borrower shall have furnished at his own expense, a complete abstract of title to the land offered as security for such loan, together with a certificate attached signed by the attorney for the board of supervisors or some reputable attorney satisfactory to said board, setting forth that in his opinion the reputed owner has a perfect title to said land and that a trust deed executed properly, will be a first lien thereon. Provided, however, in all cases, the board of supervisors or a committee therefrom shall have first inspected the proposed security and appraised the same. No loan shall be made for a greater amount than one-half of the actual value of the land, to be determined by appraisement by the board of supervisors or its committee, and said appraisement shall be reported in writing and said report recorded on the minutes of the board of supervisors. When said loan is made the recorded trust deed and the abstract of title shall be turned over to and held by the county depository in which the funds from which the loan is made are deposited. The board of supervisors shall have authority to lend such funds to the board of trustees of any agricultural high school or consolidated school in the county, at the rate of interest heretofore provided and for a term not exceeding twenty years, for the erection, equipment or repair of county agricultural high schools, or consolidated schools. The board of supervisors of any county in which sixteenth section school funds shall have been loaned to the board of trustees of an agricultural high school or consolidated school shall levy annually upon a consolidated school district, in case the loan is to a consolidated school, a special tax to be used exclusively in paying the interest on such loans and in providing a sinking fund for their redemption. If any such funds shall be loaned or invested in any other manner, each officer concerned in making such loan and investment or suffering the same to be made, in violation of the provisions of this section, shall be liable personally and on his official bond for the safety of the funds so loaned. All evidences of indebtedness shall include a provision for the payment of ten per cent attorney's fee, in case of default in payment."
It will be noted from the concluding paragraph of this section that if any such funds shall be loaned or invested in any other manner than as thus provided, the officer making such illegal loan shall be personally liable on his official bond.
The loan made in the case at bar was for a purpose authorized by law, and it does not fall within section 259, Code 1930, consequently there would be no liability on the board of supervisors, unless imposed by the last part of the statute. We think the concluding paragraph, as quoted above, is the measure of liability of the board of supervisors. The making of the loan is not rendered illegal because the legislature expressly provided for failure to observe the proceedings required in the first part of the statute. It was recognized by the legislature that mistakes and errors might be made in the making of such loans, and if the loans were thereby declared to be void, it might impose needless hardships upon the borrower of funds being immediately required to pay the money borrowed to be invested in some legitimate business transaction.
As the making of a loan involves discretion, there would be no liability because the loan was for a purpose authorized by law, and the board would fall within the protection of the rule announced in the cases of Paxton v. Baum, 59 Miss. 531, State v. Green, 111 Miss. 32, 71 So. 171, and Miller, State Revenue Agt., v. Tucker, 142 Miss. 146, 105 So. 774, in all of which it was held that where a person was exercising a judicial or quasi judicial power in making allowances allowed by law, but not following statutory directions as to how the loan was to be made, there was no liability for so doing. In State v. Green, supra, the court held there was no liability because the money was expended for a purpose authorized by law, although not in the manner directed by the statute. Under section 6764, above quoted, the loan in the case at bar was valid, whether made in conformity to the directions of the statute or not. If, for any reason, the security taken had been insufficient, and if the funds should be uncollected when due, then the board would become personally liable on their official bonds for the loss occasioned thereby. They would only be liable to a suit when it developed that the security was insufficient to bring the amount of the loan with interest. Therefore, there was no liability against the board of supervisors until the maturity date should be reached and the security was exhausted.
Boards of supervisors are charged with the duty of keeping the sixteenth section funds loaned out for the benefit of the schools, and it is not the purpose of the law to forbid renewals of loans, where the security is adequate, from time to time. The object of the sixteenth section funds is to produce revenue for schools within the township. The funds are not expected to lie idle in the treasury, and when a loan is made which is satisfactory, there is no reason why it should not be renewed from time to time. The right of the board of supervisors to extend loans is recognized in Gaines v. Faris, 39 Miss. 405, where a note was executed, in part, for the purchase money of land sold under the trust deed, and partly for the residue owing on the original note which was admitted to be valid. The purchase was made by two of the obligors to that note who executed the note sued on. The transaction was really a continuation of the previous indebtedness, and the court there said that "it is very clear that the board of police or treasurer had the power to renew the note and continue the indebtedness, taking new sureties. This ground of defence is, therefore, not tenable."
See, also, Moore v. Redding, 69 Miss. 841, 13 So. 849, where it was held that the payment of interest was a sufficient consideration for an extension. See, also, 8 C.J. 425, and notes.
In considering this question, it must be remembered what the purpose of the funds loaned is. In the case of sixteenth section township funds, the purpose is to provide interest to be devoted to school purposes. They are expected to be loaned out so that the fund will be increased and the interest used for educational purposes.
The case of National Surety Company v. Miller, 155 Miss. 115, 124 So. 251, is in harmony with the cases of State v. Green and Miller v. Tucker, cited supra.
As to the effect of sixteenth section township funds, the case of Miller v. Gore, 146 Miss. 327, 113 So. 203, is not applicable. To begin with, the statute in that case did not provide what the effect of the statute would be should the security required be not given, and the court there held that giving the security was a condition precedent to the validity of the loan, and that the borrower not having given the security required by law was not entitled to retain the money. The question is different in the case at bar.
In Walton et al. v. Colmer, District Attorney (Miss.), 147 So. 331, 332, it was held a board of supervisors were liable on their bonds for failure to perform ministerial duties, but were not liable for judicial acts which involved the exercise of discretion. We held in that case that, "if the board were not discharging the duties of a ministerial office, but a judicial one, they would not be liable to the state or other persons for injury resulting therefrom."
As we construe these decisions, they are not inconsistent with Miller v. Gore, 146 Miss. 327, 113 So. 203. The conclusion reached by us in that section 6764, Code 1930, imposes its own liability, and neither sections 197 nor 259 govern in this case, the case being governed by the statute itself, which imposes an additional liability on the board of supervisors for a noncompliance with its directions. As to boards who do not make the loans, we do not see how they can be held liable for failure to collect funds loaned by their predecessors, and this would fall within section 6770, Code 1930. The legislature imposes upon the superintendent of education the duty of collecting loans, and imposes upon the auditor the duty to furnish the superintendent statements quarterly of the loans due, and authorizes him to employ an attorney, if necessary, whose compensation shall be not more than ten per cent of the collections.
It was probably the purpose of the legislature in enacting section 6770, Code of 1930, to save the public funds ten per cent of the cost of collecting.
We are therefore, of the opinion that the court below was correct in sustaining the demurrers.
Affirmed.