Board of Sup'rs of Sunflower County v. State ex rel. Roberson
| Decision Date | 07 January 1924 |
| Docket Number | 23653 |
| Citation | 98 So. 593,134 Miss. 180 |
| Parties | BOARD OF SUP'RS OF SUNFLOWER COUNTY v. STATE EX REL. ROBERSON, ATTY. GEN |
| Court | Mississippi Supreme Court |
Suggestion of Error Overruled Feb. 4, 1924.
Appeal from circuit court of Sunflower county, HON. S. F. DAVIS Judge.
Suit by the state, on the relation of Frank Roberson, attorney general, against the board of supervisors of Sunflower county. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.
Reversed and dismissed.
Moody & Williams, for appellant.
The board of supervisors fixed the salary of the county attorney in the following order: "It is ordered that the salary of B. B. Allen, county prosecuting attorney be, and the same is hereby fixed at eighteen hundred dollars per annum from and after this date, until the further order of this board."
In May, 1922, the said board undertook to reduce the salary of the said Allen from eighteen hundred dollars per annum to twelve hundred dollars per annum. Thereafter the claims of the said Allen for his salary at one hundred and fifty dollars per month were rejected by the board. The petition alleges that the state of Mississippi is vitally interested in the performance by the said Allen of his duties as county prosecuting attorney, and that it is essential to such performance that he be paid not less that eighteen hundred dollars per annum, and that a failure so to do will amount to a virtual abolition of the office. The court erred in overruling the demurrer of the defendant to the petition.
The petition and exhibits showed on their face that Allen had a full, complete and adequate remedy at law, without resorting to the extraordinary remedy of mandamus. He could have appealed from the order of the board refusing to allow his account as claimed, or he could have sued the county in a direct action. Robinson et al. v. Board of Supervisors of Itawamba County, 105 Miss. 90, 62 So. 3; State Board of Education v. City of West Point, 50 Miss. 638, 26 Cyc. 168.
The petition was not verified as required by law, and for that reason the demurrer should have been sustained. C. S. Swan v. A. E. Gray, 44 Miss. 393; Hardee v. Gibbs, 50 Miss. 802.
This suit was begun on the petition of the state of Mississippi, by Frank Roberson, Attorney General, under section 3231 of the Code of 1906 (Hemingway's Code, section 2533). The only class of cases in which the statute authorizes the state to file the petition is that class of cases where is involved "any matter affecting the public interest." We have here a difference of opinion between Mr. Allen and the board of supervisors of Sunflower county as to the value of his services, a matter in no way involving any question of public interest.
The most that Mr. Allen was entitled to was to institute a mandamus suit, if the statute is applicable to a term of office that had already commenced when it was adopted, to compel the board to fix his salary for the term. The general rule is that where a municipal body has fixed the compensation of an officer, its decision, in the absence of fraud or bad faith, is not subject to judicial review, unless such salary is fixed so low that no competent person would accept the office. 22 R. C. L. 531.
By his acquiescence in the order of May, 1920, with the proviso, "until further order of this board" he has waived the right to object. 28 Cyc. 528, 79 A. S. R. 384; Levy v. Orlansky, 111 Miss. 331.
In Goetzman v. Whitaker, et al., 46 N.W. 1058, before the supreme court of Iowa it was claimed that the board of supervisors fixed the salary of one of the county attorneys at too low a figure, and they afterwards undertook to raise it. The court held that after being fixed by the board it could not be raised or lowered by them. The exercise of a power conferred by a statute exhausts the power of the municipal corporation. Gamble v. Witty, 55 Miss. 26. The allowance of a claim by a board of supervisors is a judicial act, and mandamus will not lie to control the amount allowed. 18 C. J. 1330-1331.
It is not contended that the services rendered are worth more than the one hundred dollars per month that has been paid by appellant in this case. If they had been that was a matter easily susceptible of accurate and exact proofs, and none has been offered. The legislature had to vest the discretion to fix the salary somewhere; they saw fit to vest that discretion in the board of supervisors; the board exercised that discretion, and we respectfully submit that the order appealed from should be reversed, and judgment entered here dismissing the petition.
H. C. Mounger, for appellee.
To sum up, we contend that the Act of 1920, chapter 126, was in full force and effect when the salary of said Allen was fixed at eighteen hundred dollars at the May meeting, 1920; that the board afterwards had no right to reduce said salary during the term of office of the said Allen; that any attempted reduction was void; and that Allen is entitled to his salary at eighteen hundred dollars per year, payable monthly for the balance of his said term. That mandamus is the only plain, adequate and complete remedy.
The authorities bearing us out are numerous. Hodnet v. Yalobusha County, 91 So. 455; Herbon Bank v. Lawrence County, 109 Miss. 397, 69 So. 209; Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210; Chatters v. Coahoma County, 73 Miss. 351; Ladner v. Tolbert, 83 So. 748; Taylor v. The State, 83 So. 810.
The same remedy of mandamus was pursued in the Wheatley case, 113 Miss. 555, 74 So. 427; Herbon Bank v. Lawrence, 119 Miss. 397, 69 So. 209; L. R. A. 1916B 622; ...
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