Summary
holding "boards of supervisors can bind counties, or districts therein, only when acting within their authority and in the mode and manner by which this authority is to be exercised under the statutes"
Summary of this case from Howell v. Board of Sup'rsOpinion
No. 32705.
April 26, 1937.
1. OFFICERS.
Official authority conferred upon board or commission consisting of three or more members must be exercised by legal quorum, and, generally, decisions to be executed or contracts to be awarded by board must be determined or decided upon only in or at a lawfully convened session, and proceedings must be entered upon minutes of board or commission.
2. COUNTIES.
Boards of supervisors can bind counties or districts therein only when acting within their authority and in mode and manner by which authority is to be exercised under statutes, and their contracts and every other substantial action taken by them must be evidenced by entries on their minutes and can be evidenced in no other way (Code 1930, sec. 6381).
3. COUNTIES.
Where county board of supervisors employed no road commissioner but had a gentlemen's agreement that work in each district should be done under supervision of board member elected from such district, who without previous order of board would employ labor and would submit pay rolls which would be allowed at subsequent meeting of board, person so employed by member to work on roads in district could not recover from county for such work, since such person had no legal contract with county (Code 1930, sec. 6381).
APPEAL from circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
Mitchell Clayton, of Tupelo, for appellant.
It is conceded that the roads of this district and of the entire county were being worked under the provisions of section 6381 of Code of 1930.
Under this section the board of supervisors as a board is authorized to employ labor for the roads. There is nothing on the face of this statute which would authorize each member of the board to employ labor in the separate districts. This statute certainly contemplates action by the board and not the individual members. Of course, if the board is to act it must do so by order on its minutes. This does not require citation of authorities. The board did not pass an order on the minutes authorizing the members to employ labor for the highways. The proof shows this to have been the custom, or gentlemen's agreement. We doubt seriously whether the board could have passed a valid order authorizing each member to employ labor for the roads, because of the fact that section 6381 of Code contemplates action of the board, and because the authority of the individual members in vacation is restricted to emergency cases, or to that permitted by section 246, Code of 1930.
Groten Co. v. Warren County, 80 Miss. 216.
Persons contracting with the county or any of its districts must see that the law relative to such contracts are complied with in making such contracts.
Jackson Equipment Service Co. v. Dunlop, 160 So. 734.
The proof failed to show that funds were in the treasury at the time the indebtedness was incurred sufficient to pay same.
Section 5979, Code of 1930; Smith v. Covington County, 158 So. 919.
Marshall T. Adams, of Tupelo, for appellee.
It is conceded by the appellant that the roads of Lee county and of the second supervisors district at the time the contract was made with the appellee were being worked under the provisions of section 6381, Code of 1930.
Under this section the board of supervisors can either contract for the working of the roads of the county and district or they may designate a county road commissioner, who will employ the labor, buy the material and work the road, etc., or the roads may be worked under the direct supervision of the board of supervisors, and this last method was the one employed by the supervisors of Lee county, Mississippi, which method had been in use in Lee county for a great number of years and under this plan or method of working the roads instead of the whole board employing the labor, buying the materials, etc., they had by an agreement of long standing authorized each particular member of the board to employ labor and buy materials for the purpose of working the roads of this district and had in fact constituted each member of the board a road commissioner for his particular district. And that as road commissioner for his particular district it was not necessary for the board of supervisors to pass any order authorizing the employment of labor for the working of the roads in each district. In other words it is our contention that under this gentlemen's agreement, which has been recognized by our courts, the particular members of the board of supervisors were authorized to act under section 6381 as though they were specially designated road commissioners. This practice and manner and method of working the roads under section 6381 has been approved by our courts in the following cases:
Pierce v. Chapman, 143 So. 845; Russel v. McRae, 152 So. 826; Jackson v. Gordon, 163 So. 502.
The contract made by the supervisor with the appellee herein was nothing more than an employment to work by the month and in view of the fact that the second supervisor's district had money in the treasury with which to pay this first month's labor contract, we contend that the contract of employment was perfectly legal and binding upon the district and county and that under all the facts and the law applicable to this case the judgment of the lower court should be sustained and the second supervisors district should be forced to pay D.A. James for his labor according to contract.
The public roads in Lee county, other than those under the actual charge of the State Highway Department, have for several years been worked, and exclusively so, under the provisions of section 6381, Code 1930, chapter 156, Laws 1928, which reads as follows:
"The methods of constructing, reconstructing and maintaining the public roads and bridges in this state, other than those under the actual charge of the state highway department, shall be as follows:
"The board of supervisors of any county may purchase and hire teams, implements and material, and employ labor, and work, construct, reconstruct and maintain the public roads and build bridges under the direction of a competent road commissioner, to be employed by the board, in its discretion, or under the direct supervision of the board of supervisors; and may do any and all things necessary to be done to work, construct, reconstruct and maintain the public roads, and build bridges as herein provided. If in the opinion of the board of supervisors any part of the work necessary to be done in working, constructing, reconstructing and maintaining the public roads and building bridges in such county, or supervisor's district or districts, or any part or parts thereof, can best be done by awarding contracts therefor, the board of supervisors may in its discretion, make contracts therefor; and the board of supervisors may, in its discretion, use any funds heretofore or hereafter raised by bond issue or otherwise for working, constructing, reconstructing, maintaining and improving the public roads and building bridges as herein provided."
No road commissioner was employed, nor was any of the work done by contract. But the members of the board had, what is termed in the record, a gentlemen's agreement that the work in each district would be done under the direct supervision of the member elected from that district, and that he, without any previous order of the board, would employ and direct the labor as he saw fit, and would submit the pay rolls at the next or some subsequent meeting of the board, at which meeting the same would be allowed. Appellee was thus employed by the member of the second district to work on the roads in that district. He claimed a balance due to him for such work in the sum of $185. For a reason, not necessary here to state, the board refused to allow this balance, and appellee instituted suit and recovered judgment, from which the county has appealed.
It is to be added that it is not claimed that the work done by appellee was within any of the emergency statutes, and it is admitted that there was no entry on the minutes of the board of supervisors of the county employing appellee or fixing his duties or prescribing the rate of his compensation. There was no order on the minutes of any nature relative to any contract for appellee's employment.
When official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. The reasons for the requirements aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority rather than the opinion or preference of some individual member; and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but that the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done. See upon the general principles stated, State ex rel. Baria v. Alexander, 158 Miss. 557, 562, 130 So. 754, and the recent case, State Highway Department v. Duckworth (Miss.), 172 So. 148, 150.
Except in a few instances of emergencies pointed out in the statutes, it has always been required in this state that boards of supervisors shall act as a body with not less than a quorum present and at a time and place fixed or provided by law. Such a board has no more authority by agreement among the members to parcel out the business of the board by districts to be transacted by the individual member elected from the particular district than would this court have the power to divide the state into six divisions or districts with the agreement that one judge shall decide all cases within the district assigned to him, the others to concur. And always it has been the positive rule in this state, both by statute and by a long line of judicial decisions strictly enforcing those statutes, that boards of supervisors can bind counties, or districts therein, only when acting within their authority and in the mode and manner by which this authority is to be exercised under the statutes, and that their contracts, and every other substantial action taken by them must be evidenced by entries on their minutes, and can be evidenced in no other way. See the discussion and the numerous cases cited in Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 115, 116, 154 So. 292.
It is unnecessary to prolong the discussion. Appellee had no legal contract with the county and was not entitled to recover. The peremptory instruction requested by the county should have been granted.
Reversed, and judgment here for appellant.