Ayres v. Board of Trustees of Leake County

• Decision Date: 11 February 1924
• Docket Number: 23490
• Citation: 98 So. 847,134 Miss. 363
• Court: Mississippi Supreme Court
• Parties: AYRES et al. v. BOARD OF TRUSTEES OF LEAKE COUNTY. AGRICULTURAL HIGH SCHOOL et al

98 So. 847

134 Miss. 363

AYRES et al. v. BOARD OF TRUSTEES OF LEAKE COUNTY. AGRICULTURAL HIGH SCHOOL et al

No. 23490

Supreme Court of Mississippi

February 11, 1924

Division B

APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.

Action by W. R. Ayres and another against the board of trustees of Leake county agricultural high school and another. From a judgment sustaining demurrers to the declaration and dismissing the suit, plaintiffs appeal. Affirmed.

Judgment affirmed.

James T. Crawley, for appellants.

The fourth ground of demurrer is the real bone of contention. The demurrer reads as follows, to-wit: "Defendants are not liable to suit; that plaintiffs, under the law, have no right of action against defendants as trustees of Leake county agricultural high school."

Counsel for defendant relied, in the court below, on McKinnon v Gowan Brothers, found in 90 So. 243. This case has absolutely nothing to do with the instant case, having been decided solely on the point that a materialman or mechanic has no lien on the buildings. The court did not hold that the trustees of an agricultural high school could not be sued and we are now facing this proposition.

Section 3421, Hemingway's Code provides that: "The trustees shall have control of the property, elect and fix salaries of all teachers in the agricultural department of the school and shall have full power to do all things necessary to the successful operation of said school."

The trustees, then, by virtue of this section are authorized to do all things necessary for the operation of the school successfully, and it being vitally essential that a school building be erected for the successful operation of the school, then, therefore, the trustees of this school had the authority to enter into a written contract for the material out of which to erect the said buildings of the agricultural high school. And having been vested with the authority to contract for the material necessary in the erection of said school buildings, and a special fund having been provided out of which to pay for said material, as furnished, then the appellee cannot now be heard to say that they cannot be sued for having breached their contract with the appellants for the material they furnished.

This case is different from Thompson & Company v. Lamar County Agricultural High School, 78 So. 547, where the principal of the school purchased supplies for the dining room of the school, and the courts held that this was beyond the power of the trustees for the reason that running a boarding house was not necessary in the operating of an agricultural high school successfully.

The intention of the legislature, in passing the statute referred to above, must be considered in determining this case. Evidently the legislature thought it necessary that a school building should be erected before the school could operate. Then, admitting that a school building is necessary, who is it that shall make the contract for the furnishing of the material, and the erecting of the buildings that are to be used by the school? Reason, of course, under the interpretation of section 3421, Hemingway's Code, says that the board of trustees of the agricultural high school shall be the proper parties to do the contracting in question.

I have found no decision that holds that the board of trustees of an agricultural high school are not suable on a contract which they were authorized to make. On the other hand, there are numerous authorities to the effect that the trustees of a school can be sued for the breach of a contract that they made, and which was within their authority to make.

It is my interpretation of the law that if the board of trustees have full authority over the property, and have full power to do all things necessary for the successful operation of the school, then they certainly have the authority to contract. And if they have the authority to contract, then they cannot be heard to say that they cannot be sued for a breach of a lawful contract.

Wells, Stevens & Jones, F. S. Harmon and J. L. McMillon, for appellees.

There is no liability upon the board of supervisors in this case. The board of supervisors could not, and did not, establish this agricultural high school. According to section 3419 of Hemingway's Code the county school board in each county is "authorized and empowered to establish not more than two agricultural high schools in the county."

Thus it is seen that the schools are created and established by the county school board, and not by the board of supervisors; that the "government and control" is in the hands of the board of trustees, and not of the board of supervisors. It is true that the board of supervisors, according to section 3420, "shall levy on the taxable property in the county at the time the annual tax-levy is made for the support and maintenance of said school," but this is nothing more than the board of supervisors does for every county institution.

There is nothing in the proposition that the trustees were the agents of the board of supervisors. It is no more reasonable to say that the board of trustees is the agent of the board of supervisors than that it is the agent of the county school board. There is nothing to be found under which it is to be assumed that the board of supervisors has had any of its powers delegated to the board of trustees as its agents. The truth is that the board of supervisors, under the Mississippi Constitution, is invested with a large measure of control over county affairs. The tax levies and bond issues are in their hands and to this extent only their powers and functions touch other phases of county business which are specifically in the hands of other boards.

The question is, whether a board of trustees of an agricultural high school is subject to suit on a contract for material used in the erection of the school buildings. The pertinent statutory enactments must be fully reviewed. Hemingway's Code, section 3682, 3684.

Thus "suits against the county" are those based upon claims which the board of supervisors had power to allow or to refuse. A condition precedent to one of these so-called "suits against the county" is that the board of supervisors shall first refuse to honor same. If therefore, the claim is one which the board of supervisors has no authority to allow or disallow, then it must follow that it is not such a claim as is embraced in the section in "suits against the county." National Surety Company v. Board of Supervisors of Holmes County, 81 So. 792.

That no suit can be brought "against the county" for a breach of contract made by the board of trustees arises from a consideration of sections 3422 and 3423 wherein it is provided that the school boards of two adjacent counties may unite in establishing an agricultural high school which is to be governed by a joint board of trustees, five chosen from each county, and the eleventh chosen by the other ten. Such a joint school board, covering two counties, is comparable to a drainage district embracing more than one county where specific authority to be sued is granted to the drainage commissioners.

It is a well-settled principle of the common law that a sovereign cannot be sued without his own consent. Blackstone, Book 3, chapter 17; Mississippi Centennial Exposition Company v. Luderbach, 86 So. 519.

Appellant, in his brief, strenuously insists that section 3421 of Hemingway's Code is sufficiently broad to permit this suit. We feel equally certain, and believe that the court will be convinced that the legislature did not intend to grant such power, and that the language does not justify the interpretation which counsel places upon it. The right to sue and be sued is very important. Immunity from suit is a privilege not lightly to be thrown away, and the states of the American Union have been very slow to deprive themselves of this immunity.

Counsel insists that the board of trustees could not do all things necessary for the successful operation of the school without being subject to suit. We insist that the mere absence of authority in the Mississippi Reports conclusively covering the question at bar is, in and of itself, sufficient evidence of the fact that the forty-nine agricultural high schools of the state have been able to function and function efficiently.

For the assistance of the court we desire to briefly refer to the various sections of Hemingway's Code dealing with the powers of similar bodies, in order to point out that when the legislature has intended to give authority to sue and be sued, it has said so, while in numerous instances language very similar to that used here has been used with reference to boards, which clearly, under our law, have no authority to be sued.

Authority to sue and be sued has been given: Drainage District, section 4295, Hemingway's Code; Mississippi Centennial Commission, section 5690, Hemingway's Code; Mississippi Centennial Exposition Company v. Luderbach, 86 So. 517. See chapter 164, Laws 1922, for further amendment conferring full authority on Centennial Commission to be sued.

On the other hand, by section 4923, dealing with the powers of the Illiteracy Commission; section 4950 dealing with the powers of the trustees of the Industrial Institute and College; section 4996, dealing with the trustees of the Blind Asylum; section 5709, dealing with the powers of the trustees of the Mississippi Insane Hospital; sections 6078 and 6081 dealing with the Mississippi Normal College, and its trustees; and sections 6214 and 6215, dealing with the powers of the trustees of the Mississippi Penitentiary, authority to be sued is nowhere specifically granted.

All these sections show that unless and until the legislature...