Opinion
No. 30558.
April 10, 1933.
1. OFFICERS.
County held not precluded from increasing salary provided for in budget, where increase could be taken from two thousand dollar budget allowance for miscellaneous administrative expenses (Code 1930, section 3970 et seq.).
2. COUNTIES.
County supervisors may insert in budget miscellaneous or contingent item, where small in amount and percentage as against total budget (Code 1930, section 3970 et seq.).
APPEAL from chancery court of Marshall county. HON. N.R. SLEDGE, Chancellor.
Lester Fant, Sr., and Jr., of Holly Springs, for appellant.
In fixing the amount to be extended in the budget for a county agent at one thousand dollars the board exercised an administrative act left entirely to their discretion; and their action, being administrative, was not subject to review by the courts but was a final judgment of the board of supervisors.
The board of supervisors of any county is authorized to revise the budget for expenses of its county at any one regular meeting of said board held not later than May of the first year in which said board enters upon the discharge of its duties.
Section 3986, Code of 1930.
The boards shall at all times keep within the sums named in its said budget and within the annual revenue always seeking to lessen expenditures, instead of exceeding revenue and budget estimates.
Section 3973, Code of 1930.
Section 3975, Code of 1930 provides that a violation of the chapter on budget shall make the members of the board voting for the same and the sureties on their official bond liable for the full amount of the claim allowed.
In accepting the employment under the order of the board of supervisors December 8, 1931, Mr. Barkley had specifically called to his attention that his term of office was not for a year nor any specified term unless the board should see fit not to remove him during that time.
E.C. Wright, of Holly Springs, for appellant.
The contract sued upon is void and because made in a manner and upon a basis and consideration in violation of the mandatory statutes regulating the financial and fiscal affairs of the county.
The entry of the order increasing the budget appropriation and granting a contract in excess of the budget appropriation, was expressly prohibited by law. Section 3973, chapter 91, Code 1930, section 3976, Code of 1930, governs changes and revisions of the budget and only permits changes to be made by a board at one regular meeting held not later than May of the first year in which the board entered upon the discharge of its duties.
The boards shall at all times keep within the sums named in its budget and within the annual revenue always seeking to lessen expenditures, instead of exceeding revenue and budget estimates.
Sec. 3973, Code of 1930.
An agreement in violation of positive law is necessarily contrary to that part of public policy expressed in the particular rule or statute violated.
62 So. 542.
A statute prohibiting making a contract except in a certain manner is ipso facto void if made in any other way.
13 C.J. 420, secs. 351-2, 13 C.J. 424, sec. 356.
If an act is prohibited by statute an agreement in violation of the statute is void, although the act is not penalized, for it is the prohibition not the penalty which makes act illegal.
The fact that the party seeking to enforce the executory provisions of an illegal contract, although consisting only of a promise to pay money and has performed the contract on his part, and that unless the other party is compelled to perform he will derive a benefit therefrom, does not induce the court to enforce the contract.
13 C.J. 507.
The fact that the budget contains an appropriation for miscellaneous administrative expenses, does not indicate it is a dumping ground for all expenditures over the budget allowance. The exhibit shows plainly that the "miscellaneous account" is just what it purports to be and what the word miscellaneous means, to-wit: special items of authorized expenditures for which there is no special budget made, such as appropriations for charities, rewards and other items which the board is authorized to allow. The account speaks for itself and shows plainly that it is not a dumping ground for deficits from other appropriations and no item in that account as shown indicates any such matter. This account, even if there was sufficient, could not be used, after being appropriated for that special purpose, to take care of a deficit deliberately made in the appropriation for county agent by this contract sued upon, and thereby consume amounts that were set aside for other purposes.
Smith Smith, of Holly Springs, for appellee.
A failure of the board of supervisors to make sufficient provision in its annual budget could not operate to invalidate legal contracts obligating the county to make definite payments, where the services were rendered.
The budget may be revised prior to May of the first year in which said board enters upon the discharge of its duties, provided there be funds in the treasury of the county, or coming into the treasury during the fiscal year, not appropriated by the outgoing board, and there is a deficit in any one or more items provided for in the budget of the preceding board. Provided further, however, that this section shall not validate or invalidate any contracts made, executed, or entered into by the board of supervisors of the preceding term.
Section 3976, Code of 1930.
That these budgets are merely estimates, and in the case before us it was sufficient to estimate the amount to be expended for salaries of County Officers without setting out every particular office and the amount which would be required to pay the salaries of such office. It would be practically impossible to foresee many of the items which are to be paid out. Contracts will have to be let in many cases and the amount for which they will be let, of which certain expenditures must be made, cannot be known with any certain degree of accuracy. The law should not be so strictly construed as to make it impracticable to operate under it. The estimate of the budgets of expenditure cannot in all cases be accurate and at most can only be approximations and should be large enough to take care of the county expenses so long as they do not exceed the estimated sources of revenue. The sources of revenue also are more or less uncertain because the assessment rolls may be changed after the budget is required to be published, and it would certainly be unreasonable to require such a strict construction as to impose upon the members of the Board the drastic obligations and penalties provided in Section 7, or suffer the county affairs to become in such a state of confusion as to seriously cripple the general welfare of the County.
Dubose et al. Board of Supervisors v. Crawford, 131 Miss. 770, 95 So. 676.
To follow the contention of counsel for appellant to its logical and inevitable conclusion would require all parties undertaking to contract with the County, if they valued their services and wanted to be certain of the validity of their contract and compensation contracted for, to undertake an audit and examination of the budgets, of the expenditure provided, and the sources of revenue, which would make it utterly impracticable and unreasonable to expect the county affairs to avoid "such a state of confusion to seriously cripple the general welfare of the county.
Nor was there ever any such thought or purpose that Boards of Supervisors would become capable of superhuman foresight and would always be able to estimate with infallible accuracy what would be in every event the requirement of an ensuing year.
Choctaw County v. Tennison, 134 So. 900.
Argued orally by Lester Fant, Sr., for the appellant, and L.A. Smith, Jr., for the appellee.
Appellant county had an arrangement with the Department of Agriculture of the United States whereby the general government would supplement the salary of the county commissioner of agriculture, if and when such an agent should be employed by the county. Beginning with the year 1917, appellant continuously employed such an agent, and during the year 1931 appellee was so employed; the county paying to him two thousand, four hundred dollars for the year and the general government supplemented this sum by the additional amount of one thousand dollars. Out of the said sums the county agent was required to pay all his expenses, except that the county furnished him an office at the courthouse.
At the September, 1931, meeting of the board of supervisors when the duty of preparing the county budget for the ensuing year came on to be performed, under chapter 91, Code 1930, there was a clamor among the taxpayers for the reduction of expenses, and the board in fixing the budget for the ensuing year placed the salary and expenses of the said agricultural agent at one thousand dollars. It was found thereafter that this amount would not be agreeable to appellee, unless the general government would substantially increase its supplement. This the agents of the general government in charge of this branch of work declined to do, and the government agent in immediate charge thereupon made tentative arrangements to transfer appellee to another county, where the combined salaries would be acceptable to appellee.
Appellee's contract with appellant county would expire on December 31, 1931, and when at the December, 1931, meeting of the board, it was definitely made known that appellee would not renew his employment and contract for the year 1932 at the sum of one thousand dollars to be paid by the county, the board agreed to raise this sum to one thousand, five hundred dollars in order to retain appellee in the service of the county. This offer was accepted by appellee, and thereupon at said December, 1931, meeting of the board a contract was spread on the minutes employing appellee for the year 1932 at a salary of one hundred twenty-five dollars per month, this sum to include expenses. The board in the same order attempted to increase or amend the budget allowance for the county agent to one thousand, five hundred dollars instead of the one thousand dollars which was placed in the budget for this item at the September, 1931, meeting.
When the new board came into office in January, 1932, they entered an order abolishing the office or employment of a county commissioner of agriculture, or "county agent" as he was termed in said order, and ordered that a warrant for one-twelfth of one thousand dollars be tendered appellee for the month of January, 1932, and that no further payments should be made. Appellee declined to accept the tender, and refused to be thus stripped of his contract for the year, and brought suit to enforce the same. Before the case came on for trial, appellee was employed by the Crop Production Bureau of the United States Department of Agriculture effective April 15, 1932, and by agreement between appellant and appellee the resignation of appellee was accepted by the county as of the date last aforesaid, but without prejudice to the rights of either of the parties in respect to the controverted salary from January 1 to April 15, 1932.
The principal defense of the county is that under the budget law the item of one thousand dollars for the county agent could not be increased at a meeting subsequent to the September, 1931, session of the board; that the attempt of the board to increase this item at the December, 1931, session was void, and that it was therefore not within the legal authority of the board for 1932 to pay more than the one thousand dollars per year, and that when appellee declined to accept the latter sum there was nothing left to the board to do except to abolish the office. There are other defenses interposed by the county which, upon mature consideration, we think are not well taken, and do not require discussion; so that we shall confine this opinion to the important question raised in respect to the budget.
The budget law in its general purpose and effect is a wise piece of legislation and has doubtless saved thousands of dollars to the taxpayers in preventing extravagance, waste, and in many cases losses to the counties which would involve criminal offenses. But it must have been as well known and appreciated by the members of the Legislature in enacting the budget law, as it is by every other reasonable person, that it would require a superhuman foresight on the part of members of the boards to say that for all the varied expenses of a county the board could a year in advance estimate with infallible accuracy exactly what would be required for every item of the numerous outlays which the interests of a sound county government would later require to be made. It will be observed that the language of the budget chapter is not couched in such rigid terms as to make the law a hindrance rather than an aid to good government. Appellant county in adopting its budget in September, 1931, evidently placed the several items as low as it was thought practicable. Appreciating what has above been said that the estimates cannot possibly possess the quality of infallibility, and that some small matter here and there would probably be underestimated or that unforeseen circumstances would surely arise that might interfere with the functions of a complete county administration unless some allowance or leeway should be provided therefor, the board at its said September, 1931, meeting inserted in the budget this further item or provision, "Miscellaneous Administrative Expenses, two thousand dollars," and the testimony discloses that it was the purpose in inserting this provision to take appropriate precaution, although small in amount, against just such unexpected or subsequently developed contingencies as we have above mentioned. The said miscellaneous item was small in comparison with the total budget, so small that it cannot be for a moment claimed that by means thereof there was an evasion of the purposes of the budget law. The additional five hundred dollars necessary to meet the contract with appellee could be taken out of this miscellaneous or contingent item. It is not shown that the miscellaneous item had otherwise been exhausted or had been drawn upon.
In Du Bose et al., Board of Supervisors, v. Cranford, 131 Miss. 770, 95 So. 676, there was an entire omission to provide in the budget for the salary of the county health officer, although there was a valid existing contract with that officer. The board refused to pay him further on his salary using the budget law as a defense thereto, but the court held that inasmuch as the budget for all the county officers included a sufficient surplus to allow the payment therefrom to the county health officer, the budget law was no defense. The same general principle applies here, and in affirming the decree in this case we might well have contended ourselves with a citation of the Cranford Case. We have written, however, to add that it is valid and legal for the board of supervisors to insert in the budget, as was done in this case, a miscellaneous or contingent item, small in amount, small in percentage as against the total of the budget, to take care of miscalculations, oversights, unexpected contingencies, and the like. This miscellaneous item will be void and inoperative, however, when it is made proportionately so large as to amount to a substantial evasion of the budget law.
Affirmed.