Amite County v. Mills

• Decision Date: 12 January 1925
• Docket Number: 23750
• Citation: 138 Miss. 222,102 So. 465
• Court: Mississippi Supreme Court
• Parties: AMITE COUNTY v. MILLS. [*]

102 So. 465

138 Miss. 222

AMITE COUNTY v. MILLS. ^[*]

No. 23750

Supreme Court of Mississippi

January 12, 1925

(In Banc.).

1 HIGHWAYS. Road construction contract held void because of engineer's failure to make estimate of cost and report same, as required by statute.

Under section 5, chapter 176, Laws of 1914 (section 7162 Hemingway's Code), it is necessary that an engineer be employed to make an estimate of the cost of constructing and maintaining the highway or highways to be improved, and that such estimate embrace the work to be done and the approximate cost thereof, and that this survey and estimate be approved by the road commissioners and by the board of supervisors and be entered upon the minutes of the board of supervisors before a valid contract can be made for such work, and where there is a failure to comply with the terms of the statute a contract made under said law is void, and the board of supervisors is not liable for the work done or the improvements made.

2 HIGHWAYS. County held not liable on quantum meruit basis for road construction work done under void contract.

A county is not liable on a quantum meruit basis for the construction of roads authorized under chapter 145, Laws of 1912, as amended by chapter 176, Laws of 1914 (Hemingway's Code, sections 7158 to 7178, inclusive), for work performed under a contract made without having the preliminary survey and estimate made by an engineer. A county can only be bound by a contract entered upon the minutes of the board of supervisors showing a compliance with the mandatory provisions of such chapters. Smith County v. Mangum, 127 Miss. 192, 89 So. 913, cited.

ANDERSON, J., dissenting and HOLDEN, J., dissenting orally.

ON SUGGESTION OF ERROR.

(Feb. 2, 1925.)

APPEAL AND EFFOR. After sustaining or overruling suggestion of error, no further suggestion of error can be filed. After a suggestion that the supreme court erred in rendering a judgment either of affirmance or reversal has been sustained, or overruled, no further suggestion of error can be filed in that cause by any of the parties thereto. * Headnotes 1. Highways, 29 C. J., section 347; 2. Highways, 29 C. J., section 349 (1926 Anno).

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Amite county, HON. R. W. CUTRER, Chancellor.

Action by W. P. Mills against Amite county. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed. Suggestion of error dismissed.

George Butler and C. T. Gordon, for appellant.

The contract in this case is void, and Mills cannot sue upon it, because the engineer employed by the commission to survey and lay out the roads did not make an estimate of the cost of constructing and maintaining the highways for each separate mile covered by the survey and did not report such estimate to the commissioners, and the commissioners did not adopt such survey or estimates and did not report the same to the supervisors and spread same upon the minutes of the board and the board did not make an order adopting such survey and estimates as provided by section 5, chapter 176, Laws of 1914, under which the county was operating in connection with these roads. Their failure in this regard renders this contract absolutely null and void. This point was expressly adjudicated in the case of Ellis v. Tillman, 125 Miss. 678.

The wisdom of this provision in the statute, and we might say its absolute necessity, is clearly demonstrated in this case. The record shows that Mills has been paid for approximately seven thousand cubic yards of grading done on the Gloster road in excess of the amount the cross section notes showed was required to grade that road, and he is making a claim for an additional twenty-eight thousand six hundred ten cubic yards for maintaining the Gloster road, or a total of thirty-five thousand six hundred ten cubic yards on the Gloster road, more than the cross section notes showed was required to grade that road.

Moreover, complainant is claiming approximately fourteen thousand cubic yards more for grading on the McComb road than the cross section notes and the extras allowed by Stowell showed, and eight thousand and fifty-seven cubic yards additional for maintenance of the road bed on the McComb road.

And in this connection it is perhaps well to point out that the cross section notes on the Gloster road were lost prior to the trial; that Mills was actually allowed seven hundred cubic yards more on the Gloster road than the cross section notes showed it required to grade that road, and approximately twelve thousand cubic yards more than Kramer's estimate showed. Whereas, in the case of the McComb road, Kramer's estimate showed an estimated quantity of thirty-one thousand six hundred cubic yards to grade that road as far as it was graded. The cross section notes showed that the actual grading to complete the road as far as it was completed was twenty-eight thousand six hundred five cubic yards, and the master found that the total yardage required to complete the road as it was finally completed was only thirty-three thousand, four hundred eighty-five cubic yards, which included four thousand eight hundred eighty cubic yards extra allowed under Stowell, or about two thousand more than Kramer's original estimate.

The very purpose of this statute was to enable the taxpayers represented by the board of supervisors to know what it cost to construct each mile of each road proposed to be built, so that they might exercise a judicious discretion in determining whether or not they would undertake the work.

The courts of this state have long since settled the proposition that a county cannot be bound except in the manner provided for by the statute, and by an order entered upon its minutes. In Holmes Co. v. Burton Construction Co., 267 F. 769, it is said: "We think it can be stated as a general proposition of law, that a public body can only be bound to the extent and within the limitations which its regularly constituted authorities have bound it. Text books and cases are uniform on that point, and it needs no citation of authorities to support the rule that no contractual rights can spring against a municipality except in strict accordance with the law, and the corollary is equally well established, that a municipality must act by order entered on its minutes with reference to its contract, and, having contracted, no additional burden or obligation can be imposed upon it except by an order duly entered upon the minutes of the board."

In Smith Co. v. Mangum, 89 So. 913, it is said: "Section 361, Code of 1906; Section 3734, Hemingway's Code, provides how contracts of this character shall be made by the board. It has been repeatedly held by this court that the board of supervisors can only act and speak through its minutes; that is, through orders entered upon its minutes."

In the case of Crump v. Board of Supervisors of Colfax Co., 52 Miss. 107, it is stated that: "It can only enter into an express contract by its assent thereto, in some form or other, entered on its minutes."

Again, in the case of Board of Supervisors of Benton Co. v. Patrick, et al., 54 Miss. 240, the court upon this question cites with approval the Crump case, supra, and adds the following: "If the contractors or the commissioners thought the alterations necessary, authority to make them ought to have been obtained from the board, and its consent manifested by its record."

In Bridges & Hill v. Board of Supervisors of Clay Co., 58 Miss. 817, speaking of a similar contract, it is there held that: "Boards of supervisors bind counties only when acting within the range of their authority, and in the mode and manner pointed out by the statutes. Their contracts are evidenced by the entries on their minutes, and can no more be varied by proof that the members failed to speak, though they knew that those with whom they were dealing misunderstood the purport of what they were doing, than they can be created and established by silence alone. It takes an affirmative act of the board within the scope of its authority evidenced by an entry on its minutes to bind the county by a contract, and when thus made, the contract is not to be varied, any more than created, by the mere silence of a portion of the board and the mistaken assertions of others."

In Dixon v. Greene Co., 76 Miss. 794, 25 So. 665, the court says that: "The only express contract made by the board was to be found in the order on its minutes, and the plans and specifications made a part thereof by reference."

In discussing the same question the court in Groton Co. v. Warren County, 80 Miss. 214, 31 So. 711, says that: "The board of supervisors may by a new contract, or an amendment of its original contract, or by a ratification (all of which must be by acts of the board in open session, spread upon its minutes) bind the county to pay in each of the cases named. And parties contracting with the counties are charged with the knowledge of this statute."

This doctrine is reiterated in the case of Marion Co. v. Foxworth, 83 Miss. 677, 36 So. 36, in the following language: "Such contracts, like all other contracts made by boards of supervisors, must be evidenced by orders duly entered on their minutes, or by papers in such orders referred to and made a part thereof."

To the same effect are Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619, and Lamar Co. v. Tally & Mayson, 116 Miss. 588, 77 So. 299. Under these authorities it is manifest that the board of supervisors of a county can only enter into an express contract by an order spread upon its minutes, and that there can be no such thing as a verbal or oral order of this board.

The two sections of the Code relating to...