American Oil Co. v. Interstate Wholesale Grocers, Inc.

• Decision Date: 06 April 1925
• Docket Number: 24670
• Citation: 104 So. 70,138 Miss. 801
• Court: Mississippi Supreme Court
• Parties: AMERICAN OIL CO. et al. v. INTERSTATE WHOLESALE GROCERS, INC. [*]

104 So. 70

138 Miss. 801

AMERICAN OIL CO. et al. v. INTERSTATE WHOLESALE GROCERS, INC. ^[*]

No. 24670

Supreme Court of Mississippi

April 6, 1925

Division B

Suggestion of Error Overruled May 25, 1925.

APPEAL from chancery court of Marion county, HON. T. P. DALE Chancellor.

Suit by the Interstate Wholesale Grocers against the American Oil Company and others. From a judgment overruling motion to dissolve, and sustaining bill, defendants appeal. Reversed and appeal dismissed.

Judgment reversed and appeal dismissed.

T. C. Hannah, James Simrall Jr., and Hall & Hall, for appellants.

Brief for appellant on the question of the right of the appellee to bring this suit. In the voluminous brief for appellee counsel contend that this suit does not come within the rule laid down by Section 309, Code 1906, Hemingway's Code, sec. 3682.

The question is not free from some difficulties, and to arrive at the correct answer, it will be necessary for us to look for a moment at our system of county government. Under our system of law the board of supervisors is vested with control over the affairs of the county. This control is over the property of the county, its officers and servants, its financial affairs, and, as expressly laid down by the statute just mentioned, over all suits by or in the name of the county. What was the purpose of the legislature in vesting the board of supervisors with this full and complete control over suits by or in the name of the county? In answering this inquiry we must not lose sight of the fact that the board of supervisors is a part of the judicial system of our state, a court just the same as our circuit and chancery courts and having just as full, final and complete jurisdiction over the subject-matters committed to it by the legislature as the circuit and chancery courts have over the subject-matters committed to them.

The legislature, recognizing this principle, came to the question of suits by or in the name of the county. It saw the wisdom at once of vesting sole control over these suits in the board of supervisors. A question arises as to whether or not it would be proper to bring a suit against some citizen. This question must be considered by the board of supervisors, sitting as a court, we must remember. The board of supervisors decide, and so adjudicate, that the proposed suit is not well founded and that it would be unwise to involve the county in this litigation.

The reason for this is apparent. Were the rule otherwise, it would leave the way open for the citizens of the county to be harassed and oppressed, needlessly, by suits brought against them in the name of the county and by the county, by other persons for their own selfish gains.

Appellee was required by law to submit to the board of supervisors the state of facts upon which it wished the county to predicate a suit. It did so, and the board of supervisors, sitting as a court and with full jurisdiction in the premises, decided that the proposed suit was not well founded in fact or in law. Did appellee complain of this judgment? It had the right of appeal from the order of the board of supervisors--the method and the only method pointed out by the statute by which it could complain of the action of the board.

The board of supervisors have adjudicated this whole matter once, and we maintain and have always maintained that its adjudication stands there as a bar to any inquiry into the matter by the chancery court. Now as to the second proposition advanced by counsel--that this suit comes within the exception provided by the last clause of section 309, Code of 1906, which provides that suit shall not be brought by the county without authority of the board of supervisors, "except as otherwise provided by law." However, counsel have failed to point out to the court the provision of law authorizing or permitting the appellee to bring this suit.

Counsel discuss three propositions at great length and cite many cases in support of their contentions. We submit that an examination of these three contentions, and of the facts and law on which counsel base these contentions will show that they are not well founded and that neither of them provides a basis on which appellee can rest its right to bring this suit.

(A) In the first place, we wish to take issue most emphatically with the correctness of counsel's statement of facts, particularly with the statement that appellee's fire insurance rate will be increased twenty per cent, and that the fire hazard to which appellee's building will be exposed will be greatly increased. The appellee made both allegations in its bill, and both allegations are copied into its brief, but it wholly failed to sustain either of them on the trial of the case.

If the board of supervisors saw fit to erect a filling station on this ground for the purpose of supplying gasoline for road trucks or for other legitimate county purposes, the appellee would have no more cause of action than if the owner of the private property adjoining appellee saw fit to put a filling station on his property. Indeed, if the appellant should take possession of the private property adjoining appellee, without a shadow of title, and proceed with the erection of a gasoline filling station thereon, most assuredly the appellee would have no standing in court to restrain the appellant because of the want of title.

In the second place, we maintain that there is no showing on this record that the location of this gasoline filling station increases the fire hazard to appellee or otherwise endangers his property.

Learned counsel for appellee laboriously endeavors to sustain their right to bring this action by showing that appellee's tax burden will be increased by this act of the board of supervisors. We feel warranted in saying that this contention is absolutely without support on this record either on fact or reason. The plain simple truth is: As the result of this lease, the appellant pays into the treasury of Marion county, sixty dollars per year, and the appellee and his fellow taxpayers, therefore, pay in sixty dollars less; and then the appellant proposes to erect a filling station on this piece of ground, and will naturally pay into the treasury of Marion county some more revenues, and then appellee and his fellow taxpayers will pay into the treasury that much less. We make no great claim as to the benefits that will accrue to Marion county from the erection of this filling station; but sixty dollars per year is six per cent on one thousand dollars, and sixty dollars per year for twenty-five years is fifteen hundred dollars, a very nice sum of money for a lot of ground forty by sixty feet.

When we come to look at the several cases and other authorities cited by counsel, we at once see their inapplicability to the facts of the case at bar. Every case and authority is one where the particular act or thing sought to be enjoined or abated was either a public nuisance or violative of some positive provision of law or resulted in an increase of the taxpayer's burden.

(B) Counsel's second main proposition is that the lease to the lot of ground here in controversy imposes or will impose, an additional burden upon appellee and the other taxpayers of Marion county. The only fact found by the learned councellor was the fact that, in law, the board of supervisors was without authority to make the lease in question, and that hence the lease was void.

In the face of the record, and especially this direct finding of fact by the lower court that the appellee's and other taxpayers' burdens will not be increased, we deem it useless to further answer or discuss counsel's contentions in this respect.

(C) We particularly object to the statement that "the dedicator of this courthouse square, the commissioners to whom the Townsite was conveyed by Lott, acting for the county, sold all the lots of the Phillips Survey, other than the courthouse square, and sold and conveyed this lot 17 (appellee's lot), and sold these lots and especially appellee's with the right in the lot owners and in this appellee to always insist that not only the dedicated streets, but the courthouse square should always be used for the purposes dedicated." There is not a word in the record anywhere, and we have examined it closely, to support this statement. A good part of the statements and conclusions of fact in counsel's brief, under this point of "dedication," are also without any basis in the record.

The lot of land on which the Marion county courthouse is located, and of which the lot here in controversy is a part, was conveyed to Marion county by a general warranty deed, without any restrictions as to its use.

The board of supervisors of Marion county, acting under the laws of this state giving them complete control over courthouse property, and the right to sell or dispose of same if not needed longer for the purpose for which acquired, made the lease in question.

What question of dedication is there in this?

Counsel have overlooked or disregarded the rights of the board of supervisors to dispose of courthouse property when not longer needed for county purposes, as announced by the supreme court in Rotenberry v. Board of Supervisors, 67 Miss. 470 7 So. 211, and conferred by sections 322 and 323, Code of 1906, sections 2695 and 3696, Hemingway's Code. Certainly this cannot be controverted, and yet under counsel's reasoning in this case the county must be deprived of this right. They may insist that this statute could not in any event be applicable to the case at bar, because they say that the lot of ground in question is now needed by the county for county purposes. But again they assume a fact not supported by the record, and expressly found against...