Board of Sup'rs of Lauderdale County v. Wilson
| Decision Date | 21 November 1927 |
| Docket Number | 26536 |
| Citation | 148 Miss. 316,114 So. 609 |
| Parties | BOARD OF SUP'RS OF LAUDERDALE COUNTY v. WILSON et al. [*] |
| Court | Mississippi Supreme Court |
Suggestion of Error Overruled Dec. 12, 1927.
(In Banc.)
1 JUDGMENT. Decree refusing to prevent construction of road held not conclusive as to constructing another road questions decided not appearing.
Judgment that writ of mandamus did not lie to compel board of supervisors to award contract for building of particular road was not res judicata of questions presented in suit to restrain board from awarding contract for building of another road, where it did not appear what questions were decided in former case because board, in former case, had filed separate and distinct pleas based upon supposed questions of law and fact and it did not appear upon which court rested judgment.
2 HIGHWAYS. Board could not be enjoined from constructing road complying with purpose of statute, though deviating from road designated in resolution (Hemingway's Code 1927, section 8496 et seq.).
Where board of supervisors issued bonds and collected proceeds, acting under Hemingway's Code 1927, section 8496, et seq., it could not be enjoined from executing contract for construction of road, connecting with highway of adjoining county, complying with dominant purpose of statute, but which deviated several miles from established road designated in board's resolution relating to issuing bonds for intercounty highways, since where adjoining county changed route, board, under constitutional jurisdiction of roads, was compelled to choose between old route designated or new route connecting with road in adjoining county.
Suggestion of Error Overruled Dec. 12, 1927.
APPEAL from chancery court of Lauderdale county.
HON. G. C. TANN, Chancellor.
Suit by G. F. Wilson and others to enjoin the board of supervisors of Lauderdale county from spending money derived from the sale of bonds in the construction of a particular county road. From a decree for complainants, defendant appeals. Reversed and rendered.
Decree reversed.
Baskin, Wilbourn & Miller, for appellants.
Appellees G. F. Wilson and others, alleging themselves to be resident citizens, property owners, taxpayers, and qualified electors of the county of Lauderdale, state of Mississippi, filed their suit in the chancery court of Lauderdale county, Mississippi, in their own behalf and on behalf of any and all other taxpayers of said county who may desire to join or intervene in the proceeding, and prayed for and obtained a temporary injunction to restrain the board of supervisors from expending any of the proceeds of a certain bond issue of four hundred thousand dollars of the county of Lauderdale and state of Mississippi theretofore issued and sold and then in the hands of the official of the county constructing and extending the Meridian & Louisville road by way of Gum Log Church, Shucktown and Center Hill to the line between the counties of Kemper and Lauderdale, and from awarding any contract for the construction, extension and improvement of such road, to be paid for or satisfied out of the proceeds of such bond issue. Temporary writ of injunction issued on the mandate of the chancellor.
The cause was heard on the bill, answer and proof, and final decree was entered granting the relief prayed for and perpetuating the temporary injunction originally granted at the time of the filing of the bill.
The reported case of Board of Supervisors of Lauderdale County v. P. C. White et al., 108 So. 913, quotes practically all of the proceedings, with reference to the bond issue involved in the present suit and the agreed statement of facts on which the mandamus case was tried. A comparison of the mandamus suit with the present suit for an injunction will disclose that in the mandamus suit practically the same parties as the ones who are appellees in this case there sought to compel the board of supervisors to construct, extend and improve the Meridian & Louisville road along the route by way of Arkadelphia. Whereas in the present case practically the same parties are seeking to enjoin the board of supervisors from constructing and extending and improving such road by way of Gum Log Church, Center Hill, and Shucktown, to the Kemper county line.
From a comparison of the two cases the complaining parties have proceeded upon the theory that the board of supervisors, under the proceedings taken and had with reference to the bond issue, were without any discretion in the matter of the laying out of the route of the proposed extension and improvement of the Meridian & Louisville road, and were within power and authority to make such extension and improvement along any route excepting the one by way of Arkadelphia to the line between the counties of Kemper and Lauderdale, notwithstanding the fact that in the resolution authorizing the issuance of the bonds it is stated that the proceeds thereof are "to be used in construction and extending the public highways of the county so as to connect with the improved highways of the adjoining counties and to form a complete system of intercounty and interstate improved highways."
The points involved are practically identical.
Appellees are barred of any right to maintain this suit by the decision of the supreme court in the mandamus proceeding brought by practically the same petitioners as these appellees in which the questions upon which the right to an injunction in this suit depend were either actually and expressly decided, or were necessarily involved. The court will bear in mind that this present suit for an injunction and the former suit for a mandamus against the board of supervisors are both suits by taxpayers on behalf of themselves and other taxpayers, concerning a public question and a public right.
Both suits involved, necessarily and inescapably, the question as to the power and right and discretion of the board of supervisors under the resolution of intention to issue the four hundred thousand dollars of bonds, to lay out and prescribe the route for the extension and construction of the contemplated improvement of the Meridian and Louisville road for approximately nine miles so as to cause such road when so constructed and extended, to join to the improved part of the highway in the adjoining county and to become a part of a system of intercounty and interstate improved highways. Dean et al. v. Board of Supervisors of De Soto County, 135 Miss. 268, 99 So. 563. Town of Tallassee v. State (Ala.), 89 So. 514, 20 A. L. R. 1127.
There is an extensive note found in 20 A. L. R. 1133, on the following topic: "Judgment in favor of defendant or respondent in an action or proceeding involving a matter of public right or interest as a bar to a subsequent action or proceeding by a different plaintiff or relator." The cases cited in such note abundantly sustain our contention that the decision in the original mandamus suit of the public questions therein involved and on the principles that necessarily had to be determined in passing on such cause is res adjudicata as against taxpayers bringing this suit for an injunction.
It is contended by the appellants, who were also the appellants in the former mandamus suit, that the bonds in question were issued under the authority of Section 7241, Hemingway's Code, as the same has been amended by chapter 207 of the Laws of 1920. That matter was fully discussed in the briefs in said cause.
Even if we were mistaken in our conclusion that the authority and predicate of the issuance of the bonds in question was section 7241, Hemingway's Code, still the same result must be reached in the case for the reason that the resolution itself makes it manifest that the dominant thought and purpose of the board of supervisors in the adoption of the resolution of intention was to use the funds derived from the sale of the bonds in constructing and extending the various roads referred to in the resolution, for certain approximate distances, the precise locations and routes of which were not fixed, so as that when such roads should have been completed such approximate distances they would link up with improved highways in adjoining counties and form a part of a complete system of intercounty and interstate improved highways.
All of these points were extensively argued, and numerous authorities cited on both sides, in the former mandamus suit. We cite the following authorities on the power of the board of supervisors with reference to the public roads: Sec. 170, Con. of Miss., as amended, Laws of 1922, page 145; Grenada County v. Olsen, 118 Miss. 885, 80 So. 333; Claiborne County v. Callender, 128 Miss. 159, 90 So. 722; Brooks v. Board of Supervisors of Simpson County, 102 So. 777; Havens, Tax Collector v. Hewes, 128 Miss. 650, 91 So. 397; State v. Board of Supervisors, 111 Miss. 867, 72 So. 700; State v. Board of Supervisors, 113 Miss. 689, 95 So. 683.
The judicial discretion of the board of supervisors in matters of this nature may not be controlled by the writ of injunction. McCool v. U. S. F. & G. Co., 91 So. 566; Pearl River County v. Town of Picayune, 89 So. 10.
Amis, Dunn & Snow, for appellants.
The material facts in this case are substantially the same as those in the case of the Board of Supervisors v. White, et al., 108 So. 913. The only distinction between the two cases is the difference in the remedies invoked. The mere shifting from one remedy to another, as is the case here, does not alter the substantial equitable or legal rights of either of the parties. The decision of this court in the case of White v. Board of Supervisors, supra, settles the law applicable to the case in hand.
There are two dominant questions arising from the record upon which the case must...
To continue reading
Request your trial