Brown v. Reeves

• Decision Date: 03 July 1922
• Docket Number: 22495
• Citation: 129 Miss. 755,92 So. 825
• Court: Mississippi Supreme Court
• Parties: BROWN ET AL. v. REEVES ET AL

92 So. 825

129 Miss. 755

BROWN ET AL. v. REEVES ET AL

No. 22495

Supreme Court of Mississippi

July 3, 1922

1 COUNTIES. Supervisor voting for appropriations for his own compensation acts ministerially and not judicially.

Under section 346, Code 1906 (Hemingway's Code, section 3719) which provides that, if a board of supervisors shall appropriate any money "to an object not authorized by law," the members of the board, voting for such appropriation shall be personally liable, therefor, to be covered by suit in the name of the county or in the name of any taxpayer of the county suing for the use of the county held, a member of a board of supervisors voting for an appropriation for his own compensation as such member does not act judicially but ministerially, for he knows the facts and is presumed to know the law, and therefore there is nothing about which he can exercise his discretion.

2 COUNTIES. Supervisor held liable on his official bond for appropriation for his salary exceeding that authorized by law; "appropriation to object not authorized by law."

Under the provisions of said statute, an appropriation by a board of supervisors to a member thereof as compensation for the services of such member, where the appropriation is in excess of that authorized by law, such an appropriation is "to an object not authorized by law," as defined by said statute, for which such member is liable on his official bond at the suit of a taxpayer of the county.

3 COUNTIES. Salaries of supervisors, where classified by counties according to population, determined by federal census in absence of state census.

Under sections 2194 and 2195, Code 1906 (sections 1878 and 1879, Hemingway's Code), which provide that the compensation of the members of the boards of supervisors shall be graduated in accordance with the number of inhabitants in the counties they serve, the classification of the counties for that purpose, in the absence of a state census, is determined by the federal census covering the period of the terms of the members of such boards.

4. EVIDENCE. Courts will take judicial notice of federal census in ascertaining population of state and subdivisions.

The court will take judicial notice of the federal census in ascertaining the population of the inhabitants of a state, county, city, town, township, village, or other political subdivision of the state.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH, Chancellor.

Bill by T. R. Brown and others against Icham Reeves and others. From a decree dismissing the bill, the plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

H. H. Creekmore, for appellant.

Section 293, of the Code of 1906, which provides for members of the board of supervisors to give bonds concludes with this clause: ". . . and such bond shall be a security for any illegal act of such member of the board of supervisors, and recovery thereon may be had by the county for any injury by such illegal act of such member; or any taxpayer of the county may sue on such bond, for the use of the county, for such injury, and such taxpayer shall be liable for all cost in case his suit shall fail."

Section 346 of the Code of 1906: "If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person, who is a taxpayer who will sue for the use of the county, and who shall be liable for costs in such a case."

On the statutes the appellants have the right to maintain this suit if the appellees received more compensation than fixed by law, and this question will be discussed later in the brief. Section 343 of the Code of 1906, declares that it shall be unlawful for the board of supervisors to allow a greater sum for the salary or fee of any officer than the amount actually due, and further provides that any such illegal allowance may be inquired into by the proper tribunal in any case.

Section 344 of the Code of 1906, denounces as a misdemeanor the reception by anyone of compensation not authorized by law and provides appropriate punishment of one convicted thereof. Section 343 was construed by this court in the case of Board of Supervisors v. Klein, 51 Miss. 807.

We find a case of the payment to an officer of an amount in excess of the compensation fixed by law and a discussion of the subject in our reports, being the case of Howe v. The State, 53 Miss. 57. Over and over again in the Howe case, in discussing an excessive allowance to the treasurer, the court not only holds that such allowance is not binding, but in language of no uncertain meaning holds that such appropriation was "to an object not authorized by law." And under section 293 of the Code of 1906, the appellants, as taxpayers, have a right to bring this suit, because the action of the board of supervisors under the cases cited heretofore is illegal, and certainly the payment of more compensation to an officer than provided by law is an injury to the county. Paxton v. Baum, 59 Miss. 531.

This case was construed by the chancellor to hold expressly that an overpayment to an object authorized by law is not within the statute, even if this overpayment is to a member of the board of supervisors in the matter of fees or compensation. With deference I submit that the learned chancellor misapprehended the effect of the decision in Paxton v. Baum.

Counsel for appellees cited and relied upon as decisive of this case the decision in the case of Weissinger et al v. Davis, 112 Miss. 625, 73 So. 617. In that case the court simply holds that the declaration filed by the plaintiffs clearly shows that the alleged illegal appropriation was made to an object authorized by law, and that there was no warrant of law for the maintenance of the action. Of course, if the declaration showed that the alleged illegal appropriation was made to an object authorized by law a taxpayer could not sue, but the decision does not state what the averments of the declaration were, nor are the facts of the case stated by the reporter.

Counsel for appellees in their brief claim that section 2194 of the Code of 1906, which is section 1878 of Hemingway's Code, fixes the compensation of a member of the board of supervisors at the sum of four dollars per day and mileage, not to exceed the sum of four hundred, dollars and mileage; and that section 2195 of the Code of 1906, which is section 1879 of Hemingway's Code, allows additional compensation for extraordinary services as much as six hundred dollars per year.

This statement of counsel is correct only as to counties having more than forty thousand inhabitants; and as to the pay of extraordinary services the statement is correct only in counties of more than forty thousand inhabitants, where the board works public roads with county convicts, or by contracts or both, and are engaged in permanent road construction, there being no road commissioner. The contention of appellants is that the compensation provides for members of the board of supervisors of Harrison county by the statutes just referred to, is four dollars per day and mileage for regular meetings, not to exceed for both per diem and mileage for any year the sum of three hundred dollars, and for extraordinary services three dollars per day, not to exceed two hundred and fifty dollars for any year.

This contention of the appellants is based on the fact that for the years 1916, 1917 and 1918, Harrison county has less than forty thousand inhabitants in the sense in which this expression is used in the statute and also in fact. The census for 1910, of which the court will take judicial knowledge, shows that Harrison county had less than forty thousand inhabitants and likewise the census for 1920, which is now available discloses that the county still has less than 40,000 inhabitants.

A similar question was presented in the litigation recently over the status of the City of Oxford, and in that litigation it was decided by this court, that the Governor had power to act under a statute as to classification of municipalities only after the census showing a change in the classification. It may be said that in that litigation there was a statute limiting the power of the Governor and fixing his authority in accordance with the census returns, but nevertheless, the decision follows the general rule as to the construction of statutes classifying counties or municipalities for any purpose according to population. Boone v. Metts, 88 So. 525.

Corpus Juris in discussing the subject of compensation of county officers uses this language: "Except where it is specifically provided that counties are not by operation of law reclassified under a new census, but remain in the old classification until reclassified by the legislature, statutes classifying counties according to population for the purpose of fixing salaries of county officers operate automatically to place a county in a certain class on the last census showing it to have the required population; but such statutes do not so operate merely on the county attaining such population, but only on the legal ascertainment of the fact by a census bureau, and they will not be allowed to operate so as to change an officer's compensation during his term in violation of constitutional provisions." 15 Corpus Juris, 499; McFadden v. Borden, 28 Cal. A. 47, 152 P. 977; Faucher v. Rosenoff, 65 Wash. 416, 118 P. 315; Lewis v. Lackawanna County, 200 Pa. 590, 50 A. 162.

I respectfully submit that the record shows a payment to each of the appellees of many hundreds of dollars in...