Board of Sup'rs of Harrison County v. Gully

• Decision Date: 12 April 1920
• Docket Number: 21049
• Citation: 84 So. 163,122 Miss. 46
• Parties: BOARD OF SUP'RS OF HARRISON COUNTY v. GULLY
• Court: Mississippi Supreme Court

84 So. 163

122 Miss. 46

BOARD OF SUP'RS OF HARRISON COUNTY v. GULLY

No. 21049

Supreme Court of Mississippi

April 12, 1920

March 1920

1 COUNTIES. Order for contract for abstracts of title need not recite opinion of board that necessity exists.

Under section 320, Code of 1906 (section 3693, Hemingway's Code), providing that, "when in its opinion the interest of the county would be subserved thereby," the board may procure by purchase of or have made an abstract of titles to land in the county, it is not jurisdictional to recite in the order the opinion of the board that such necessity exists. Jurisdictional facts must be recited, but a mental state or an opinion need not be recited.

2 COUNTIES. Plans and specification need not be filed under contract for making county obstract of title.

Under section 320, Code of 1906 (section 3693, Hemingway's Code), authorizing the board of supervisors to purchase or have made an abstract of title to lands in the county, it is not necessary to file with the clerk plans and specifications under section 361, Code of 1906 (section 3734 Hemingway's Code); the making of abstracts involving personal skill and confidence does not come within the purview of that section.

HON. W. M. DENNY, JR., Chancellor.

APPEAL from chancery court of Harrison county, HON. W. M. DENNY, JR., Chancellor.

Suit by George S. Gully against the Board of Supervisors of Harrison County for an injunction. From a decree overruling defendant's demurrer, it appeals.

Reversed and remanded.

Mize & Mize, for appellant.

Section 320, Code of 1906, is as follows: "The board of supervisors of any county may, when in its opinion the interest of the county would be subserved thereby, procure, by purchase or have made, a complete abstract of title to land in the county, and may provide all books necessary for the purpose, and the costs thereof shall be paid out of the county treasury. Such abstracts, when purchased or made, shall be kept in the office of the chancery clerk as a public record."

The board of supervisors, in pursuance of this statute, passed an order for the purchase of an abstract of titles of land in the county, but omitted to state in said order that, in its opinion, the interests of the county would be subserved thereby. In all other respects there is no objection to the order.

Objection is made by appellee to the order because the board failed to express in the order that, in its opinion, the interests of the county would be subserved by the purchase of such abstract; that this is jurisdictional and makes the order null and void, as all jurisdictional facts must appear of record. However, we say that this language applies to a mental operation of the board, which need not be expressed in the order. In other words, jurisdictional facts mean affirmative facts. Whenever a statute lays down a number of things that must be done before the board of supervisors can pass an order, the order must recite that all the things required to be done by the statute were done; but it is not necessary for the board to place its mental operation of record to make the order valid.

Further objection to the order is made on the ground that no plans and specifications of the kind and nature of the abstract were made and filed, and this was in violation of section 361 of the Code of 1906.

We do not think that this section applies to purchase of an abstract, as the procuring of an abstract is not the kind of public work contemplated by said section; as nobody but a lawyer or person trained in the work can make an abstract and a lawyer has to certify to an abstract, and it would be against the ethics of the legal profession to permit attorneys to compete by advertisement in such work. As to the index to the family names, we respectfully submit that it is a mighty good thing, and we think the board ought to have the right to install such index.

As to the contention that the revenue of the county is not sufficient to pay for the purchase of such abstract there is no allegation in the bill of complaint that the board of supervisors is without authority to levy for the needed funds; and, as the board holds the purse strings of the county, it has the right to raise revenue, if it so desires, as long as it is within legal limits, and there are no allegations in the bill of complaint that if the board had to raise the revenue to purchase said abstract it would not exceed its legal limitations in so doing.

We respectfully submit that the injunction granted in this cause should be dissolved.

Griffith & Wallace, for appellees.

Taking up first the order or alleged order of the said board of supervisors with reference to what they term a complete set of records showing abstracts of title: The first point made against same was that there was no recital in the order that the board had found that "in its opinion the interest of the county would be subserved thereby." This is a finding they must make before they may proceed. It is therefore jurisdictional, and it is a familiar rule in this state that the jurisdictional facts must appear from the recitals of the minutes or else the order has no validity. Hinton v. Perry County, 84 Miss. 546; Bolivar County v. Coleman, 71 Miss. 832. Counsel say rather plausibly that the omitted recitals were merely of a mental state, and that such is not of the facts such as the law insists upon. But nevertheless the mental conclusions must have existed, and the existence thereof should be made to appear, and inasmuch as presumptions do not aid such an order it would seem to follow as a logical result of the rule first cited that the recitals of the said jurisdictional matter should appear, from the minutes, for if not, they can be imported therein only by presumption, which latter we have said are not available to support an order of the board on jurisdictional matters. The rule is well understood now and is easy to follow. It could have been done in well understood terms easy to follow. It could have been done in this case easily if, as a matter of fact, the board did so find, and there is no occasion for engrafting upon it an exception which can serve no other purpose than to confuse a good and sound rule and to make it the basis for insistence upon other and further exceptions. So far as the order shows, the board may have done it with some other motive than to subserve the best interest of the county, and if their judgment and finding was that such action would subserve the best interest of the county they should go on record as the statute recites. Why should the law aid by presumption here, in this particular case when the rule is that it does not on these jurisdictional matters.

It is not necessary, however, to spend any time on the foregoing point, because it must be clear that on the second point of attack on this order the holding must be that the order is insufficient. It will be observed that the bill alleges and the demurrer admits: "That no plans or specifications for the doing of said work had been made and filed by the said board in that it is not shown what particular system of abstract making is to be used and complainant avers that there are various and different systems for the making of abstracts, all considered by their sponsors as being complete, and some systems are much more valuable and much more difficult to make than others and are much more convenient and usable when completed than others. The said order, or said invitation for bids would be merely or when to be completed. It does not state whether the contract price is to be paid in installments or whether on completion. It does not state what bond is to be required if paid in installments conditioned upon the completion of said work. And complainant avers in short that there is nothing definite or specific upon which any intelligent bid may be made for said contract, and that any bid thereon would be in accordance with said order, or said invitation for bids would be merely a matter lying within the mind of the bidders as to the detail of the performance of the contract and as to the specifications of the abstract books, when made and completed."

Under section 361, Code 1906, it is provided that "All contracts by the board of supervisors for any public work not...