Summary
In Austin-Western Road Machinery Company v. Webster County, 170 Miss. 601, 154 So. 723, this Court held invalid a contract of the county to purchase road machinery under Section 6064, because the proof of the advertisement for bids was not on file with the board when the contract was let.
Summary of this case from Beall v. Bd. of Suprs. of Warren Co.Opinion
No. 31245.
May 14, 1934. Suggestion of Error Overruled September 11, 1934.
COUNTIES.
Plaintiff could not recover price of road machinery furnished county under contract executed before proof of publication of notice to bidders was filed with board of supervisors, notwithstanding publication was made.
APPEAL from Circuit Court of Webster County.
McClellan Tubb, of West Point, for appellant.
The actual filing with the board of supervisors of a proof of publication of a notice to file bids is not jurisdictional and essential to authorize the board of supervisors to enter into a valid contract of purchase.
It would appear that this court has decided in the cases of Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Merchants Bank Trust Co. v. Scott County, 145 So. 908; Weir v. Attala County, 126 So. 192, that the proof of publication must actually be on file with the board of supervisors before the board has jurisdiction, the correctness of which decisions we here challenge and ask this court to overrule. The proof of publication is not jurisdictional but the publication as required by law is jurisdictional.
Hinton v. Board of Supervisors, 36 So. 565; Robb Chichester v. Postal Telegraph Cable Co., 61 So. 170, 104 Miss. 165; Russell v. Copiah County, 120 So. 133.
The scheme of the legislature requires notice and on affirmative finding thereof in the orders of the board but nowhere in the Act of 1924 or elsewhere in the code do we find that the exclusive way to make this proof is by proof of publication.
This court has held that the proof of publication is not conclusive.
Crump v. Tucker, 149 Miss. 711, 115 So. 397.
A.L. Ford, of Ackerman, and McKeigney Latham, of Eupora, for appellee.
The proof of publication must be on file with the board of supervisors at the time the contract is made in order to confer jurisdiction on the board to make a legal contract.
Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Merchants Bank Trust Co. v. Scott County, 145 So. 908, 165 Miss. 91; Weir v. Attala County, 126 So. 192, 156 Miss. 560.
This suit is to recover the alleged contract price of certain road machinery furnished by appellant to appellee county. Bids were invited by publication as required by law, and in response thereto appellant's bid was accepted; a contract was attempted to be made therefor and spread on the minutes of the board of supervisors. The machinery was delivered. But the proof of publication had not been filed with the board of supervisors or with the clerk thereof at the time the alleged contract was made; in fact it is not shown that it was ever on file, before or after; and the order of the board, while reciting that publication had been made, was silent upon the point whether the proof thereof was on file. And as stated, the evidence outside the recitals of the order fails to show whether the proof of publication was in fact ever on file.
In Board of Sup'rs of Lowndes County v. Ottley, 146 Miss. 118, 112 So. 466, Merchants' Bank v. Scott County, 165 Miss. 91, 145 So. 908, and People's Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192, we held that proof of publication must be on file as a jurisdictional prerequisite to enable the board to proceed. These cases followed the principle applied in Oliver v. Baird, 90 Miss. 718, 44 So. 35, wherein it was held that a judgment in attachment was invalid when there was no proof of publication before the court at the time the judgment by default was rendered. It was contended in the Oliver v. Baird case that inasmuch as the publication had actually been made, the absence of the proof thereof before the court at the time of the rendition of the judgment was immaterial, the law being concerned, so it was argued, only in the fact of the publication; and that is exactly the argument made here in urging us to overrule the three cases first above cited. With equal force it could be argued that the fact of the service by the sheriff of a personal summons is that with which the law is concerned, and that therefore a judgment might thereafter be taken although no return of the summons into court has ever been made by the sheriff. Where publication of notice is jurisdictional, as is the case here, the filing of the proof of the publication is the equivalent of a return in writing by the sheriff of a personal summons, and is equally indispensable.
It is to be regretted that parties dealing with these boards will sometimes, on account of procedural oversights, such as this, lose their demands for property furnished to and used by the counties; but we have no legitimate power, in order to prevent hard results in an occasional case, to set aside settled rules based upon sound legal principles.
Affirmed.