Coleman v. Shipp

• Decision Date: 21 March 1955
• Docket Number: No. 39446,39446
• Citation: 78 So.2d 778,223 Miss. 516
• Parties: J. P. COLEMAN, Attorney General, et al., for Use, etc. v. C. B. SHIPP et al.
• Court: Mississippi Supreme Court

Page 778

78 So.2d 778

223 Miss. 516

J. P. COLEMAN, Attorney General, et al., for Use, etc. v. C. B. SHIPP et al.

No. 39446.

Supreme Court of Mississippi.

March 21, 1955.

Murray L. Williams, Water Valley, for appellants.

Fred B. Smith, Ripley, Smallwood & Sumners & Hickman, Oxford, for appellees.

McGEHEE, Chief Justice.

A suit involving the matters hereinafter mentioned was originally filed by Armis E. Hawkins, District Attorney, covering about ninety alleged private projects some of which were constructed and the remainder maintained at the expense of Supervisors' District No. 4 of Lafayette County, from which district the appellee C. B. Shipp was elected as a member of the board of supervisors of said county in 1943 and began his term of office on the first Monday in January 1944 and in which capacity he has served continuously since that time, with the appellee United States Fidelity & Guaranty Company as surety on his official bond.

Thereafter the present suit was filed in the names of both Armis E. Hawkins, District Attorney, and J. P. Coleman, Attorney General of Mississippi, under a different chancery court docket number, for and on behalf of the taxpayers of the said Supervisors' District No. 4, and in which suit the number of the alleged private projects complained of was reduced to about sixty, by reason of the fact that such of the projects as required less than one day for construction or in work in connection with the maintenance thereof, were eliminated.

The instant suit asked for a discovery under oath by the defendant supervisor and the surety on his official bond as to the amount of the cost to the road fund of the said supervisors' district of each of the projects complained of. An amended answer of the defendants to the bill of complaint set forth the amount of the cost of each project as determined by a conference between the supervisor and the road hands of the said district, including the value of the use of the road machinery and equipment, the hours of labor employed, and the cost of the gasoline and oil used in connection with such projects as the supervisor admitted were maintained by him with the road machinery, equipment, labor and supplies. This discovery covered forty-two alleged private roads complained of in the bill of complaint, and claimed that the same were public roads, but did not cover the cost to the district of the other eighteen projects consisting of pools and ponds on the lands of private individuals, and for the reason that the answer of the defendant supervisor and his surety expressly denied that any of the pools and ponds complained of were constructed with his knowledge or consent.

As to such of the eighteen private pools and ponds that were shown to have been constructed with the tractors, graders, bull-dozers, and other equipment of the district, the proof discloses, without dispute, that it was the custom for this heavy road equipment to be left on the roadside, or at or near some local residence, from about 5 o'clock in the afternoon until the road hands returned the next morning, and also over the weekend, and that those private citizens who used the same for the purpose of constructing or cleaning out a pool or pond on their land would do so by arranging with some private individual, who knew how to operate such machinery, to do the work between 5 o'clock in the afternoon and the time for the return of the road hands on the next morning, and without the knowledge or consent of the defendant supervisor.

This officer testified that in one or two instances where he learned about the machinery having been so used for private purposes, he complained to the landowner in regard thereto and stated in substance that he could not permit the road machinery of the district to be used for such a purpose. His testimony in this regard was undisputed, and the trial judge therefore held that the road machinery and equipment, and the gas and oil paid for by the district, were used without the knowledge or consent of the defendant supervisor, and that he was not liable for the value of the use thereof. We are of the opinion that we would not be justified in reversing the decree of the chancellor in that regard. Hence we eliminate those alleged eighteen private pools and ponds from the complaint, and go to the consideration of the 42 alleged private roads which are claimed to have been maintained by the defendant supervisor with the use of the road machinery, equipment, gas and oil, and through the labor of the employees of the district, all of which projects are claimed by the defendants to have been public roads under the circumstances hereinafter mentioned.

Section 170 of the State Constitution of 1890 provides, among other things, that 'Each county shall be divided into five districts, a resident freeholder of each district shall be selected, in the manner prescribed by law, and the five so chosen shall constitute the board of supervisors of the county, a majority of whom may transact business. The board of supervisors shall have full jurisdiction over roads, ferries, and bridges, to be exercised in accordance with such regulations as the legislature may prescribed, and perform such other duties as may be required by law; * * *'.

Section 2890, Code of 1942, reads in part as follows: 'The boards of supervisors shall have within their respective counties full jurisdiction over roads, ferries, and bridges, except as otherwise provided by section 170 of the constitution and all other matters of county police. * * *'

It will be noted that Section 170 of the Constitution, supra, requires that the jurisdiction of the boards of supervisors over roads, ferries, and bridges is 'to be exercised in accordance with such regulations as the Legislature may prescribe, * * *'; and that Section 2890, Code of 1942, gives the board of supervisors jurisdiction over roads, ferries, and bridges, 'except as otherwise provided by section 170 of the constitution * * *.'

From time immemorial it has been considered that the jurisdiction of the board of supervisors over roads has reference to public roads which have been established either by dedication, prescription, or under the method provided by statute.

Section 8314, Code of 1942, embodying the regulations prescribed by the Legislature, finds its origin in Chapter 10, art. 9(1), Hutchinson's Code 1848; Chapter 15, art. 1, Code of 1857; Section 2336, Code of 1871; Section 823, Code of 1880; Section 3892, Code of 1892; Section 4400, Code of 1906; Section 7080, Hemingway's Code of 1917; Section 6340, Code of 1930; and Chapter 226, Laws of 1926. This statute reads in part as follows: 'When any person shall desire to have a public road other than a road being maintained by the state highway department laid out, altered or changed, a petition shall be presented to the board of supervisors of the county, signed by ten or more freeholders or householders of the county interested in the road, setting forth the commencement and termination and general course thereof, and that the public interest or convenience requires the road to be laid out and opened or altered or changed, as shown in the petition; * * * and thereupon the board of supervisors shall hear the parties, and if it determine that the prayer of the petitioners ought to be granted, in whole or in part, it shall appoint a committee of two members, of districts other than that of the road or proposed road, which shall examine and view the contemplated route of the road, and, if they find the same practicable, they shall lay out and mark the road, or the alteration or change, and report their proceedings in writing to the board at its next meeting.'

Section 8286, Code of 1942, provides in part as follows: 'All roads now laid out and opened or hereafter laid out and opened according to law shall be deemed public roads and highways and shall be opened and worked at least sixteen feet wide, wherever practicable, and in any case not less than twelve feet, and any greater width that may be necessary. * * *' (Italics ours.)

After a careful reading of the testimony and a subsequent review thereof, we have concluded that there is no substantial conflict in the testimony that at least 18 of the 42 road projects were in truth and in fact private roads and driveways in which neither the general public nor a number of other freeholders or householders were interested in the sense necessary to constitute them public roads; that these 18 projects were either half circle driveways leading from the public road by the residence of a private citizen and then back into the public road or were roads merely leading from the nearby public road down to the residence in front of which the same made a circle and led back over the said route to the public road. Without classifying the same as to the above two designations, we now give the names of each of these projects and the cost to the supervisors' district of their maintenance by the defendant supervisor, during either the year 1950, 1951 or 1952, according to the testimony of said defendant, but entirely during the year 1951 according to the allegations of the bill of complaint. We give the cost of each of these projects as taken from the discovery under oath on January 3, 1953, by the defendant supervisor in his amended and supplemental answer to the bill of complaint filed herein in the name of the district attorney and attorney general. These were all constructed and maintained by the predecessor in office of the defendant supervisor for a long period of time and thereafter maintained by the latter, and consisted of the Stanley Browning road, costing the supervisors' district $10.43; the L. A. Jones road, costing the district $20.20; the Hubert Jones road, costing the district $4.75; the Henry Gray road, costing the district $26.95; the D. W. Varner road, costing the district $41.65; the Tom Browning road, costing the district $16;...