American Oil Co. v. Bishop

• Decision Date: 18 April 1932
• Docket Number: 29958
• Citation: 163 Miss. 249,141 So. 271
• Court: Mississippi Supreme Court
• Parties: AMERICAN OIL CO. v. BISHOP et al

141 So. 271

163 Miss. 249

AMERICAN OIL CO. v. BISHOP et al

No. 29958

Supreme Court of Mississippi

April 18, 1932

Division A

Suggestion Of Error Overruled May 16, 1932.

APPEAL from the circuit court of Simpson county, HON. E. M. LANE Judge.

Petition by the American Oil Company for writ of mandamus against T W. Bishop and others, members of the Board of supervisors of Simpson county. From the judgment, petitioner appeals. Affirmed.

On suggestion of error.

Overruled.

For former opinion, see 141 So. 271.

Affirmed. Overruled.

Hannah & Simrall, of Hattiesburg, for appellant.

The declaration charges that the appellant contracted to sell and did sell and deliver merchandise to Simpson county. It charges that the appellant duly presented its account to the Board of Supervisors for payment; and at the December, 1930, meeting of the Board of Supervisors said account was audited, allowed and approved, as shown by the minutes of the Board of Supervisors. The demurrer, of course, admits the correctness of these facts, and most assuredly this establishes a legal and undisputed outstanding obligation of Simpson county.

The appellant in this case is not dependent merely on the allegation of the declaration as to the legal and undisputed outstanding obligation, and admitted by the demurrer; but the appellant may also rely on the solemn adjudication made by the Board of Supervisors.

Section 255 of the Code of 1930.

The declaration charges a legal and outstanding obligation and the demurrer admits it. The declaration shows a valid judgment rendered by the Board of Supervisors, and the demurrer admits it. Then there can be no question about the valid legal outstanding obligation.

If the claim has been allowed the creditor has a judgment and does not need another which would be satisfied with another warrant.

Klein v. Board of Supervisors, 51 Miss. 1878.

In the case of Taylor v. Board of Supervisors, 70 Miss. 87, 12 So. 210, the court says, "The allowance of the claims by the court authorities carried with it an obligation to provide funds to pay them. For failure to discourage this duty they are subject to suit by mandamus.

Attala County v. Grant, 9 S. & M. 78; Carroll v. Tishomingo County, 54 Miss. 38; Klein v. Board of Supervisors, 54 Miss. 254.

Strict legal technicality cannot be required of minutes of the boards of supervisors, for it is not a tribunal of legal experts. Supervisors are laymen, and some indulgence must be extended to the language of their minutes. All that is required is substance and good sense in the terms used.

People's Bank of Wier v. Attala County, 156 Miss. 560, 126 So. 192.

In the case at bar we are not even contending that the order of the Board of Supervisors was entered for the purpose of authorizing the payment of the money; but we do contend that the order of the Board constitutes a valid, binding judgment as to the amount and legality of the indebtedness due the American Oil Company.

It is our conception that the basis of the petition is an indebtedness from Simpson County to the American Oil Company. The indebtedness was for merchandise contracted for by Simpson county and sold and delivered by the American Oil Company.

A. M. Edwards, of Mendenhall, for appellees.

The order here involved does not follow the statute; it fails to name the section of the law under which the allowance was made or on what account.

Newton County Bank v. Perry County, 99 So. 513; Sec. 5977, Code of 1930.

The order involved in the case at bar is fatally defective, and does not constitute a judgment against the county.

Choctaw County v. Tennyson, 134 So. 900; Pearl River County v. Lacy Company, 128 Miss. 885, 91 So. 572; Newton County Bank v. Perry County, 99 So. 513; Attala County v. Mississippi Tractor & Equipment Co., Advance sheet South, of March 17, 1932, page 628.

Argued orally by Jas. Simrall, Jr., for appellant, and by A. M. Edwards, for appellee.

OPINION

McGowen, J.

The appellant, American Oil Company, filed its petition for a writ of mandamus against the board of supervisors of Simpson county, to which the board interposed a demurrer. The demurrer was sustained; the appellant declined to plead further; the cause was dismissed, from which judgment this appeal is prosecuted.

The petition alleged that the American Oil Company was engaged in the business of selling gasoline, motor fuel, and motor oils, greases, and lubricants; and that, during the years 1929 and 1930, it contracted to sell, and did sell and deliver, a large quantity of their merchandise to Simpson county, Miss.; that, from time to time, itemized statements of the merchandise so sold and delivered were presented to the board of supervisors; that, at the regular December 1930, meeting of the board of supervisors, its claim was audited allowed and approved, and the order so doing was made a part of the petition; said order being in the following language:

"The State of Mississippi, Simpson County.

"Board of Supervisors Court

"December Term, 1930

"Be it Remembered that at the above stated Term of the honorable Board of Supervisors of said County, an order was then and there made by said Board, which was in the following words and figures, to-wit; 'It is hereby ordered that the Board acknowledges that it is due the American Oil Company the sum of six thousand four dollars and forty-five cents for oil and gasoline furnished District No. 2 of Simpson County, up to November 30, 1930, and the sum of one thousand two hundred sixty-eight dollars and ninety cents for oil and gasoline furnished District No. 3 up to October 31st, 1930.'"

The petition further alleged that the item of one thousand two hundred sixty-eight dollars referred to in the order had been paid, and that five hundred dollars had been paid on the sum of six thousand four dollars and forty-five cents, reducing the amount due to the sum of five thousand five hundred four dollars and forty-five cents, which, it is alleged, is still due and unpaid; that the petitioner had called upon the board of supervisors to pay its account, but that said Board had neglected, failed, and refused to pay it, giving as a reason for their refusal that there were no funds, or insufficient funds, in the treasury with which to pay same.

It was further alleged that the appellant had demanded of the board of supervisors at their regular meetings that they issue bonds under the authority of section 5977, Code of 1930, and that said board of supervisors had refused so to do. The petition further alleged that the appellant has no other adequate remedy, except by a writ of mandamus, and, there being no funds in the treasury for the payment of its account, it would have been a useless thing for the board of supervisors to have issued warrants, and, in fact, would have been a violation of the law. It was further alleged that it was the plain, imperative duty of the board of supervisors, in event they did have the money in the treasury with which to pay the account, to have immediately directed the issuance of a warrant in favor of the petitioner for said amount, and, if they had not sufficient funds with which to pay said account, then it was the duty of the supervisors to issue bonds to pay same.

The petition further alleged that it was the opinion of the appellant that the board of supervisors did not have in the treasury funds with which to pay this account, and prayed for the issuance of a writ of mandamus requiring said board to either issue a warrant, or bonds, in order that the account might be paid.

The board of supervisors appeared and interposed a demurrer setting forth the following grounds:

"1. Petitioner has a plain, adequate and speedy remedy at law.

"2. The petitioner has another specific remedy against the defendant, to-wit, the right to sue defendant, if any indebtedness be due, or to appeal from the order of the Board of Supervisors rejecting its claim.

"3. The Board of Supervisors, defendants, had the right under the law, to judiciously determine whether the said account of petitioner should be allowed, and this in effect said Board did determine against the allowance of said account, when it neglected, failed and refused to pay same as alleged in the petition of plaintiff, and having acted thereon, the petitioner has no right to a writ of mandamus against this defendant, and can only exercise its legal and specific remedy by appealing from the action of the Board, or by suing the defendant for the amount of the claim.

"4. The fact that...