Board of Sup'rs of Lee County v. Payne

• Court: Mississippi Supreme Court
• Writing for the Court: McGowen, J.
• Citation: Board of Sup'rs of Lee County v. Payne, 166 So. 332, 175 Miss. 12 (Miss. 1936)
• Decision Date: 17 February 1936
• Docket Number: 32064
• Parties: BOARD OF SUP'RS OF LEE COUNTY et al. v. PAYNE

166 So. 332

175 Miss. 12

BOARD OF SUP'RS OF LEE COUNTY et al. v. PAYNE

No. 32064

Supreme Court of Mississippi

February 17, 1936

Division A

1 COUNTIES.

Under statute requiring supplies for public works to be purchased by county board of supervisors upon competitive bids, suit by lumber dealer for unliquidated damages for breach of contract by county whose board of supervisors awarded lumber dealer as lowest bidder, contract for lumber to be used by county during year, and in violation of contract purchased lumber from others, held not maintainable (Code 1930, sections 253-255, 257, 270, 6064).

2 COUNTIES.

Counties are not liable for damages for neglect of public duty, since they are involuntary political divisions of state, created for governmental purposes, and organized without regard to consent or dissent of inhabitants, and since suit against a county, which is a subdivision of the state, is in effect a suit against the state, for which consent of the Legislature must be obtained.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Lee county HON. JAS. A. FINLEY, Chancellor.

Action by W. C. Payne against the Board of Supervisors of Lee County and another. From an adverse judgment, the defendants appeal. Reversed and remanded.

Reversed and remanded.

Mitchell & Clayton, of Tupelo, for appellants.

There is no statute making a county liable in damages for breach of contract. In the absence of such statute there is no liability and can be no suit.

Sections 6064 and 6065, Code of 1930.

The two statutes above cited considered together show the only penalty provided by statute for breach of a contract of this kind is punishment of the individual members of the board. There is no provision making the county liable for failure of the board to carry out the terms of a contract entered into under the provisions of this statute.

Any purchase of lumber made by the board, from other parties, was without authority and ultra vires; in fact was contrary to the provisions of the statute. We submit the board cannot bind the county by doing acts expressly prohibited by statute. The county is not like a private corporation.

A county is a political subdivision and complainant is charged with knowledge of the law to the effect that a political subdivision is not like a private corporation and is liable only where the statute provides liability.

Brabham v. Supervisors, 54 Miss. 364; Pidgeon Thomas Iron Co. v. Leflore Co., 135 Miss. 166; Redditt v. Wall, 55 So. 45, 34 L. R. A. (N. S.) 152; Ayers v. Agriculture High School, 98 So. 847; City of Grenada v. Grenada County, 76 So. 683; Sevier Lake Drainage District v. Kinney, 121 So. 117.

There is no section of the law permitting a claim to be allowed for damages for breach of contract.

Miss. Centennial Exposition Co. v. Luderbach, 86 So. 519.

This suit is solely for damages growing out of the refusal of the board to buy lumber from complainant and buying it from other individuals. Section 6064 under which this contract was made does not provide that the county would be liable for failure of the board to live up to the contract made under its provisions. The statute speaks for itself and does not create any liability for failure to carry out a contract.

Groton Bridge Co. v. Warren County, 80. Miss. 214; Smith County v. Mangum, 89 So. 914; Miss. Exposition Co. v. Luderbach, 86 So. 519.

C. P. & S. H. Long, of Tupelo, for appellee.

The contract for breach of which suit is brought in this case was made and entered into under Section 6064, Code of 1930, and the contention of the appellants in the court below was and will be that this statute authorizes no suit against the county and provides no liability for a breach of the contract. It is true that neither this section nor any of the sections contained in Chapter 151 Code of 1930, nor Section 272, Code of 1930, provide for any suit in case of their breach, but several other sections of the code provide how a claim shall be filed and passed on by the board which will be found from Section 254 down to and including Section 271, Code of 1930, and it is our contention that whenever the board of supervisors makes contract in the way and manner required by law and then wilfully and intentionally refuses to carry it out that there is an implied if not an express liability on the part of the county for the payment of any loss or damage suffered by reason of such breach to the injured party.

And it is further our contention that practically all of the authorities cited by appellant in the court below recognize such liability and that it is not necessary for it to be express, but if such liability is necessarily implied by law then the right, remedy and procedure provided by the various sections of the code above referred to for the collection of the same is open to the aggrieved party.

The cases in Mississippi recognize necessarily implied liability on the part of the county as fully as they do an express liability.

Brabham v. Supervisors, 54 Miss. 364; Sutton v. Board, 41 Miss. 236; Pidgeon Thomas Iron Co. v. Lefloro County, 135 Miss. 155.

It certainly cannot be the law that the Legislature intended such to be the law that the county, the state or a city could solemnly enter into a contract in the way and manner prescribed by law, require a bond from the Other party to the contract, to faithfully perform his part of the same, go to all the expense and trouble necessary to carry out and perform his part of the contract, and it be nullified by the county, by its proper and only ones in authority to act and the unoffending party is without recourse in any way whatever.

Leflore County v. Allen, 80 Miss. 314.

Where the board of supervisors is given power to enter into a solemn contract for supplies and other such things as it is authorized by law to contract for if the county breaches such contract through its board of supervisors the county is liable to the aggrieved party for such damages as follow such breach.

Appellee has a just claim by necessary implication and Section 253, Code of 1930, gives the right to collect by suit if payment is refused.

This section is supplemental to and a part of every section by and under which board of supervisors are authorized to contract.

OPINION

McGowen, J.

W. C. Payne, appellee, filed his bill in the chancery court against the board of supervisors of Lee county, appellant, and J. D. Christian, in which he sought to recover three hundred fifty-nine dollars and forty-three cents on account of an alleged breach of a contract entered into between the board of supervisors and Christian and himself. The appellant, the board of supervisors, filed a demurrer to the bill, which was overruled; and an appeal to this court was granted by the chancellor to settle all the controlling principles of the case.

The bill alleged that in December, 1931, the board gave notice of its intention to award contracts to the lowest responsible bidders who would furnish bridge lumber for the bridges for the county for the year of 1932, which notice was duly published; that pursuant to such notice the appellee and J. D. Christian submitted their bid to the board, in which they offered to furnish lumber for the building and repairing of the bridges in the county for the ensuing year at certain prices per thousand for heart pine, red oak, and white oak; that their bid was accepted by the said board, and an order was duly entered on the minutes of said board to that effect, and pursuant thereto the contract was entered into and signed by the president of the board and clerk thereof, and by Payne and Christian; and that on the same day they entered into bond as fixed by the board, which was duly approved by it for the faithful performance of their contract.

It was further alleged that it was the duty of the board to buy from Payne and Christian, during the year 1932, all of the bridge lumber that was necessary to be used in said county at the prices named in the contract, except that under and by virtue of terms of the contract it was provided that the board of supervisors of each district should have the right to purchase from any of the local mills located in said district, lumber, provided it bought the same at the prices set out in the aforesaid contract.

The bill further alleged that appellee and Christian, after the making of said contract, did procure sufficient timber out of which to manufacture and have on hand lumber of the various kinds and descriptions, named in the contract, that might be necessary and needed from time to time during the year of 1932, for the purpose of building and repairing the bridges of the said county, and that they were at all times during the said year, from the 6th day of January, 1932, until the end of said year, able, ready and willing to carry out said contract and furnish the lumber as needed; but notwithstanding the making and entering into of said contract, and notwithstanding the fact that the said board was under contract to purchase all of the lumber needed for bridge building and repairing for said county for said period of time, except such as might be bought from mills lying and being situated in the district of each supervisor, it totally ignored its duty to so purchase said lumber from the said Payne and Christian, and bought a large amount of lumber from other people who had no mill located in the district of the supervisors purchasing the same, and in many cases from persons having no mill located in the county of Lee.

There was then set forth an itemized statement of the amount of lumber purchased by the said board in each of the several districts of the county, for bridge purposes during said year, totaling one...