Opinion
No. 30395.
February 13, 1933.
1. COUNTIES.
"Legal advertisement" by county for bids for motor vehicles and road machinery contemplates three weeks' advertisement (Laws 1928, Ex. Sess., c. 61, sec. 1; Code 1930, secs. 239, 240, 246).
2. COUNTIES.
Advertisement stating county would receive bids for road machinery, for two weeks in two issues of newspaper only held not "legal advertisement," invalidating contract (Laws 1928, Ex. Sess., c. 61, sec. 1; Code 1930, secs. 239, 240, 246).
3. COUNTIES.
Parties contracting with county are charged with notice of statutory requirements (Laws 1928, Ex. Sess. c. 61, sec. 1).
4. ESTOPPEL. Order of board of supervisors reciting due advertisement for bids for road machinery and acceptance of bids held not to estop county, or officers, from asserting noncompliance with statute requiring legal advertisement which rendered contract unenforceable ( Laws 1928, Ex. Sess., c. 61, sec. 1; Code 1930, sec. 246).
Order of county board of supervisors, reciting that advertisement was duly made for bids for road machinery, was not conclusive so as to work estoppel against county and its officers, because order did not recite what was done in way of compliance with legal requirements, or when proof of publication was actually made. Furthermore, order of board of supervisors was not judgment of court acting in judicial capacity, the minutes of which imply verity, but was a mere undertaking to certify generally, without reciting details of what was done in compliance with the law in making the contract.
APPEAL from chancery court of Scott county. HON. A.B. AMIS, SR., Chancellor.
Green, Green Jackson, of Jackson, and Jeff Kent, of Forest, for appellants.
Section 1, chapter 61, Laws 1928, Extraordinary Session provides:
"That boards of supervisors may purchase after legal advertisement, when the total amount of such purchases makes it necessary that such purchase be made upon competitive bids after legal advertisement thereof, trucks, tractors, motor vehicles, and road building machinery, and make a part payment in cash thereon, the balance to be paid in installments, and the deferred payments, above provided for, may be evidenced by an order of the board of supervisors, spread upon the minutes of said board, provided that the maturity of said deferred payments shall not extend beyond March 1st next succeeding such purchases, and in no event, beyond the term of office of the board of supervisors making such order."
True, there is a provision in our statutes (see section 4042, Hemingway's Code 1927), that payments shall not be made for bridges and other public work, except after inspection and acceptance, and that this must be entered on the minutes, but the furnishing of machinery and the like is not public work.
Peoples Bank v. Attala County, 126 So. 192, 156 Miss. 560.
Where there is a definition of a term, that same definition will be made applicable throughout the instrument, especially so when the legislature, as is here the case, reenacted this section with these precise terms used therein.
Harvey v. Johnson, 71 So. 824, 111 Miss. 566.
When there was to be a compliance with section 341, Code of 1892, there were three insertions, but when only a purchase, then one advertisement.
State v. Wall, 98 Miss. 521, 54 So. 5.
It has been specifically held that section 6064 applied to articles of this character and drew a distinction between section 6064, Code of 1930 and section 341, Code 1892.
Attala County v. Miss. Tractor, etc., 139 So. 628.
The supervisors having the right to do, and having induced appellant to rely upon that recited by their minutes, are not now privileged to repudiate their obligation while they retain the use of the tractor, which they have consistently employed on the roads from that day until now.
The board is the official organ of the county, and cannot be bound by any express contract unless its consent thereto is manifested by its official acts, in term time, entered on its records. It cannot impart verbal authority to the sheriff or any other person to contract for the county. The written obligation of the sheriff to Crump did not bind the county as a party to that contract, because there was not competent authority given by the board in the first instance, and there has been no subsequent ratification.
But since the county enjoyed the use of these five rooms, and such accommodations were necessary, the county is liable for the use and occupation on the principle of the quantum valebat.
Crump v. Board of Supervisors of Colfax County, 52 Miss. 107.
When the tractor was taken after the order of sale was revoked and continuously utilized by the county when there was work for it to be done, with a recital upon the part of the board of full compliance, they cannot escape obligation.
Henderson-Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716.
That kind of plunder which holds onto the property, but pleads the doctrine of ultra vires against the obligation to pay for it, has no recognition or support in the laws of this state.
Watts Mercantile Co. v. Buchanan, 92 Miss. 544; Peoples Bank v. Lamar County Bank, 67 So. 961, 107 Miss. 952; Tallahatchie D. Dist. v. Yocona-Tallahatchie D. Dist., 114 So. 264, 267, 148 Miss. 182; New Orleans N.E.R. Co. v. Jemison, 110 So. 785, 787, 144 Miss. 890.
Resolute good faith should characterize the conduct of the public in dealing with individuals, and there is no good reason in morals or in law that will exempt it from the doctrine of equitable estoppel.
Jennings County v. Verbard, 63 Ind. 107; 21 C.J., page 1186, note 77.
When the supervisors, with full power to publish if they didn't do that of them by law required, certified by an adjudication on their minutes, specific and precise, that as to both the time and the place that the advertisement was as should have been, and then having so thus certified, and in virtue of that certification obtained this tractor, of which they are still in possession, they may not as against the bank, assert their failure to do that which they ought to have done, when they have asserted in the most solemn form by their minutes that they have not left undone that which they ought to have done.
Aberdeen v. Sykes, 59 Miss. 240; Vicksburg v. Lombard, 51 Miss. 126; Madison County v. Brown, 67 Miss. 697; Grenada County v. Brown, 112 U.S. 261, 28 L.Ed. 706; Cutler v. Supervisors, 56 Miss. 123.
The city had the right to purchase brick and use them on its streets; and it was right to hold it liable for that which it assumed to do without a contract when it might have done the thing if it had contracted to do so.
Church v. Vicksburg, 50 Miss. 605.
Actions of the board not involving jurisdictional power are conclusively right in collateral litigation.
Hinton v. Perry County, 84 Miss. 546.
The obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.
Marsh v. Fulton Co., 77 U.S. 676, 684, 19 L.Ed. 1040; Springfield Furniture Co. v. School Dist. No. 4 of Faulkner County, 67 Ark. 236, 54 S.W. 217; Howard County v. Lambright, 72 Ark. 330, 80 S.W. 148; School Dist. No. 47 v. Goodwin, 81 Ark. 143, 98 S.W. 696; Forrest City v. Orgill, 87 Ark. 389, 112 S.W. 891; Greenberg Iron Co. v. Dixon, 127 Ark. 470, 192 S.W. 379.
Wherein as against the state there were presumed certain things and an estoppel substantially created.
Carruth v. Gilliespie, 109 Miss. 670, 679, 68 So. 929.
Section 6382, Code of 1930 supplements by authorizing installment purchases section 6064, which had been in effect since Chapter 123, Laws 1912, amended chapter 206, Laws 1914, whereunder continuously from that date competitive bids had been taken without the three weeks advertisement as to this type of property, and this departmental interpretation in case of doubt should aid and is almost controlling.
Furniture Co. v. Miss. State Tax Comm., 133 So. 652, 160 Miss. 185.
Assume, contrary to the fact, that section 1, chapter 157, page 212, and section 6328 do apply, contrary to its express terms, to advertisement, the only provisions therein found is "due advertisement therefor," and there is no reason why the contracts should not be advertised for in accordance with section 239, for there is as to them no other express provision, but as to purchases, there is the express provision of Section 6064, whereunder since 1912, competition in bidding has been the sole requirement.
J. Knox Huff, of Forest, for appellee.
Chapter 61 of the General Laws of the Extraordinary Session of the Legislature of 1928 predicates the action of the board of supervisors and the contract of the county, in such matters, upon the jurisdictional requirement "after legal advertisement," when the total amount of such purchase makes it necessary that such purchase be made upon competitive bids.
The requirements of the legal advertisement are at least three weeks' published notice by advertisement in a public newspaper of the county, if there be one, and if not, by posting written or printed notices at the court house door and in each supervisor's district of the county, which notice shall distinctly state the thing to be done and invite sealed proposals to be filed with the clerk.
Sections 239, 240, Code of 1930.
Statutes relating to advertisements are strictly construed.
State v. Wall, 98 Miss. 521, 54 So. 5; Lay v. Shores, 112 Miss. 140, 72 So. 881.
All contracts made in violation of any of the provisions of law shall be void.
Sec. 246, Code of 1930; State v. Vice, 71 Miss. 912, 15 So. 129; State v. Wall, 98 Miss. 521; Board of Supervisors of Jefferson County v. Arrighi, 54 Miss. 668.
Members of boards of supervisors are trustees for the public and are bound by the limitations fixed by law upon their powers of the conditions under which contracts may be made. These being fixed by law, all persons are charged with notice of them, and, where it appears from the plaintiff's proof necessary to make out his cause that the law was violated by the board, the court will apply the law, although there is no special plea setting forth such illegal facts.
Universal Motor Co. v. Newton County, 130 So. 791, 131 So. 827.
Contracts made by the officers of municipal or quasi-municipal corporations in violation of law imposed no liability upon the body politic and no subsequent ratification by such officers of the void contract can impart to it validity. Having originally no authority to enter into the contract in the mode adopted, they can have no power to validate it by subsequent ratification.
Board of Supervisors of Jefferson County v. Arrighi, 54 Miss. 668.
It matters not whether its action be regarded as judicial, legislative or ministerial: excess authority in either capacity is simply void. They can do valid acts only as empowered by law.
Howe v. State, 53 Miss. 57; Jefferson County v. Grafton, 21 So. 247.
Parties contracting with a county are charged with notice of the conditions under which such contracts can be made.
Smith County v. Mangum, 127 Miss. 198, 89 So. 913.
Argued orally by Forrest B. Jackson, for appellant, and by J. Knox Huff, for appellee.
On the 18th day of February, 1929, the board of supervisors of Scott county, Mississippi, gave the following notice:
"Notice is hereby given that the board of supervisors of Scott county, Mississippi, will receive bids in writing on Monday of the next regular meeting of said board, on one grader for each of districts 3, 4 and 5, one Ford truck for district No. 5, and one caterpillar for district No. 5, No. 20.
"This the 18th day of February, 1929.
"B.R. NICHOLS, Clerk."
On the 6th day of March following, the board entered the following order on its minutes: "It appearing to the board that advertisement has heretofore been duly made in manner and for the time required by law, and that competitive bids have been filed as required by law for the purchase of tractors for road work; the board having investigated the entire matter, including the advertisements and bids, is unanimously of the opinion that the bid of The Munson Road Machinery Company to furnish this county one Cletrac Crawler Tractor, 30 HP, without electric starter, and lights, is the lowest and best bid, and the bid which should be accepted, and that said bid does not exceed advertised prices plus freight; It is thereupon ordered that said bid be and the same is hereby accepted, and the said The Munson Road Machinery Company, is hereby directed to deliver to Scott Beat # 5 County the foregoing described equipment at and for the sum of two thousand four hundred two dollars and twenty cents, and one used 2 Ton Holt tractor, of which amount the sum of four hundred dollars shall be paid in cash in April, 1929, and the balance shall be paid as follows: two thousand two dollars and twenty cents balance on March 1, 1930, in accordance with the term of Senate Bill No. 58, Extraordinary Legislative Session, 1928."
The proof of publication showed the publication to have been made in a newspaper of the county on February 21 and February 28, 1929, two issues only.
Said proof of publication does not appear to have been filed until March 26, 1932, and does not appear to have been filed prior to the 6th day of March, 1929.
Subsequent to the entry of the order by the board on the 6th day of March, 1929, and on or about the 3d day of June, 1929, the Merchants' Bank Trust Company sent to the board of supervisors an assignment of the latter's contract to pay two thousand two dollars and twenty cents, requesting that such assignment be entered upon the minutes. The deputy clerk in charge of the office entered the same reading as follows: "The board of supervisors hereby accepts notice of an assignment to the Merchants' Bank Trust Company, of Jackson, Mississippi, of a balance due on this tractor of two thousand two dollars and twenty cents to be allowed as follows: two thousand two dollars and twenty cents to be allowed March 1, 1930, and the clerk is hereby directed and ordered to issue the warrants for said amounts to the said The Merchants' Bank Trust Company of Jackson, Mississippi, and to deliver said warrants to the latter in accordance with the contract referred to hereinabove."
When the board of supervisors checked the minutes before signing same, this order was read and disapproved, the board not having authorized same, and the clerk was instructed to erase it, which he did by running dollar marks with the typewriter over it, but the lettering was visible nevertheless.
Subsequent to this time, and after the maturity of the alleged two thousand two dollars and twenty cent payment, a claim was presented to the clerk of the board by attorneys for the allowance in favor of the Merchants' Bank Trust Company of its assignment, which the clerk refused to do, stating that there was some controversy about the matter. The claim was not formally placed on the docket of claims, but the attorneys interviewed the member from the district in which the tractor was situated, and he stated to the attorneys that he could do nothing about the matter until he conferred with his attorneys. There was no entry of an order either rejecting or allowing the claim, and thereupon this suit was brought.
There seems to have been a discrepancy as to the machinery advertised for and that purchased, the advertisement calling for twenty horse power machinery, and that purchased being thirty horse power.
The chancellor dismissed the bill filed by the appellants, and this is an appeal from the order of dismissal.
The statute under which the alleged transaction took place reads as follows: "Boards of supervisors of any county may purchase after legal advertisement, when the total amount of such purchases makes it necessary that such purchase be made upon competitive bids after legal advertisement thereof, trucks, tractors, motor vehicles, and road building machinery, and make a part payment in cash thereon, the balance to be paid in installments, and the deferred payments, above provided for, may be evidenced by an order of the board of supervisors, spread upon the minutes of said board, provided that the maturity of said deferred payments shall not extend beyond March 1st next succeeding such purchases, and in no event, beyond the term of office of the board of supervisors making such order." Chapter 61, section 1, Extraordinary Session 1928.
The contention is whether or not there was a legal advertisement under the terms of this statute, and whether the order of the board of supervisors, above recited, precluded the inquiry into that matter, and also whether the failure to file the proof of publication before the order was made invalidated it. There is also a question raised as to whether the claim could be allowed because the budget for that year did not contain a provision for such purchase.
But, in view of the conclusion we have reached, it will not be necessary to consider and decide that last question.
We think the provisions of chapter 61, section 1 thereof, Extraordinary Session of 1928, "after legal advertisement" contemplates a three weeks' advertisement, and that it refers, by implication, especially to notices required in making contracts for public work. Under sections 239 and 240, Code of 1930, notice is specifically required to be published for three weeks. Section 1 of chapter 61, Extraordinary Session of 1928, does not fix specifically what "legal advertisement" means, and does not fix any number of weeks to constitute a legal advertisement.
The general law throughout the statutes requires publication of public notices to be for three weeks, except in a few instances where the statutes fix another length of time. The reference in chapter 61 to publication, "when the total amount of such purchases makes it necessary that such purchase be made upon competitive bids after legal advertisement thereof," refers to the general rule before boards of supervisors to publish notice for three weeks.
We are satisfied that the statute contemplates publication for three weeks, and that publication for only two weeks was insufficient. It will be noted from the order set out that the board of supervisors did not undertake to direct advertisement for any specific number of weeks. Generally speaking, the statutes requiring the giving of notice by publication prior to the act are to be construed so as to require conformity to statutory directions. State v. Wall, 98 Miss. 521, 54 So. 5; Lay v. Shores, 112 Miss. 140, 72 So. 881; State v. Vice, 71 Miss. 912, 15 So. 129; Board of Sup'rs of Jefferson County v. Arrighi, 54 Miss. 668.
By the terms of section 369, Code of 1906, section 4052, Hemingway's 1927 Code, and section 246, Code of 1930, it is provided, in part, that "all contracts made in violation of any of the provisions of law shall be void."
The purpose of giving public notice for the time required is designed to secure the best bids for the county. The parties contracting with the county are charged with notice of the conditions under which contracts can be made. Amite County v. Mills, 138 Miss. 222, 102 So. 465, 737; Smith County v. Mangum, 127 Miss. 192, 89 So. 913.
In Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466, it was held that, in order for boards of supervisors to make contracts, where publication is required, the proof of publication must be filed before the board can act.
It is urged here that the order of the board above recited shows a compliance with the law, and that due notice was published in conformity with law, and that this estops the county from asserting the contrary; that such recitals are conclusive.
We do not think that they are conclusive, nor that the county is estopped by the act of its officers, and that if, in fact, the statutes were not complied with, and compliance is essential to the validity of a contract, the alleged contract is void, and, in fact, no contract. The order does not recite what was done in the way of compliance with the legal requirements, or when the proof of publication was actually made, and there was no making the proof of publication a part of the order by reference, as was done in the case of People's Bank v. Attala County, 156 Miss. 560, 126 So. 192.
The order of the board of supervisors was not a judgment of a court acting in a judicial capacity, the minutes of which imply verity, but was a mere undertaking to certify generally, without reciting the details of what was done in compliance with the law in making a contract. The board of supervisors may have thought, at the time, that it was complying with the law, or that legal advertisement was actually made.
There is a marked difference between private contracts between individuals, and contracts where one party is a board representing the public. The legislature has the right to impose restrictions on contracts, and to require parties making contracts with the public to observe the restrictions. If this results in hardships, as in the case at bar, it is a hardship that could have been avoided by observing the statutory requirements.
We find no reversible error in the decree, and it will be affirmed.
Affirmed.