Austin-Western Road Machinery Co. v. Webster County

• Citation: 154 So. 723,170 Miss. 601
• Decision Date: 14 May 1934
• Docket Number: 31245
• Court: United States State Supreme Court of Mississippi
• Parties: AUSTIN-WESTERN ROAD MACHINERY CO. v. WEBSTER COUNTY

154 So. 723

170 Miss. 601

AUSTIN-WESTERN ROAD MACHINERY CO. v. WEBSTER COUNTY

No. 31245

Supreme Court of Mississippi

May 14, 1934

Division B

Suggestion Of Error Overruled September 11, 1934.

APPEAL from circuit court of Webster county HON. JNO. F. ALLEN Judge.

Suit by the Austin-Western Road Machinery Company against Webster county. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

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.

OPINION

Griffith, J.

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...