Craig v. Winston County
| Decision Date | 16 March 1936 |
| Docket Number | 32082 |
| Court | Mississippi Supreme Court |
| Parties | CRAIG, STATS AUDITOR, v. WINSTON COUNTY |
1. APPEAL AND ERROR.
On remand of cause after reversal of judgment of dismissal for insufficiency of plea to merits, trial court committed no error in granting defendant leave to plead further and overruling motion to strike plea in abatement; filing of such plea being in legal effect withdrawal of plea of general issue then on file.
2 COUNTIES.
State auditor may sue county for cost of auditing its books, in absence of disagreement between auditor and county board as to amount thereof, though statute imposing duty to collect such costs does not expressly confer power to sue therefor such power being necessarily implied (Code 1930, sections 3747--3754).
3 COUNTIES.
Statute requiring submission of itemized statement of cost of auditing county's books to Governor and declaring latter's decision thereon final, requires state auditor to submit such statement to Governor before instituting proceedings against county to collect such cost, if auditor and county board disagree as to amount thereof. (Code 1930, section 3748).
4. PLEADING.
Plea in abatement on ground that state auditor's suit against county for expense of auditing its books was premature because plaintiff had not submitted demand to Governor held bad on demurrer, in absence of allegation of disagreement between parties as to amount of charge (Code 1930, section 3748).
5. PLEADING.
Rule that demurrer to replication to plea may be extended back to plea and sustained held inapplicable, where county supervisor's order and facts rendering it void and ineffective as basis for defendant county's plea of res judicata, demurred to by plaintiff, first appeared in replication to such plea according to record on appeal, so that Supreme Court's ruling on plaintiff's subsequent appeal that demurrer to plea in abatement should have been sustained did not entitle appellant to final judgment (Code 1930, section 548).
APPEAL from the circuit court Of Winston County HON. JOHN F. ALLEN, Judge.
Action by Carl N. Craig, State Auditor, against Winston County. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Lotterhos & Travis, of Jackson, for appellant.
The state auditor has the right to maintain the action.
Section 3753 does not constitute a limitation on the state auditor's right to recover the cost of making an audit.
Price v. Gillis, 168 Miss. 139, 151 So. 157.
It was not necessary to submit the matter to the Governor.
Even if a disagreement as to the amount had been pleaded in this case, we submit thai under the terms of the statute the county could not plead the failure to submit the matter to the Governor as a defense, because the matter of submission to the Governor is a right granted to the county if it disagrees with the amount of the charge, and is not an obligation resting upon the state auditor. It is apparent that this is the intention of the statute when the statute provides that the state auditor shall be the judge of the cost of making the audit.
So far as we can ascertain there is no decision of this court or any other court which will throw any light on this particular point. The only thing to do is to read the applicable part of the statute and consider what the true intent and purpose of the legislature was. We think that it is perfectly clear from the language used that the intention was to give a right to the dissatisfied party of appealing to the governor, and that it was never intended to make it a prerequisite to the filing of a suit to collect the cost of an audit that the matter must have been submitted to the governor.
As pleas in abatement do not deny and yet tend to delay the trial of the merits of the action, great accuracy and precision are required in framing them. They should be certain to every intent, and must, in general, give the plaintiff a better writ by so correcting the mistake objected to as to enable the plaintiff to avoid a repetition of it in forming his new writ.
Shipman on Common Law Pleading, page 399.
Section 532 of the code requires that pleas in abatement, where the matter pleaded does not appear on record, shall be verified by the oath or affirmation of the party defendant, or some other credible person. This affidavit was not made to the plea in abatement in this case, but it was simply signed by the attorneys for the county.
Upon sustaining the demurrer to the plea in abatement, the order should be in the form of a judgment for the plaintiff.
In proper cases a demurrer to a replication relates back to the special plea.
State v. Washington Steam Fire Co., 76 Miss. 449, 24 So. 877; Y. & M. V. v. Adams, 77 Miss. 780, 29 So. 959.
We anticipate that the appellee will attempt to answer our demand for a final judgment with the claim that the general issue plea, which was filed in March, 1934, still presents an issue of fact to be disposed of in this case prior to a final judgment. But, unfortunately for the appellee, this court has expressly ruled to the contrary.
McNeely v. Y. & M. V., 119 Miss. 897, 81 So. 641.
Rodgers & Prisock, of Louisville, for appellee.
The state auditor does not have the right to sue a county.
171 Miss. 404, 157 So. 909; Section 3753, Code of 1930.
The state auditor is under section 3753 as chief inspector, authorized to sue officers and employees named thereunder, but it is just as evident thai; such section does not give the auditor the authority to sue a county or any political subdivision of the state.
Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318; White v. Lowery, 139 So. 874.
Counties are immune from liability to the same extent as the state, and suit cannot be maintained for a liability unless authorized by some statute, expressly or by necessary implication.
Appellant admits that the appellant does not rely upon section 3753 in any sense whatsoever for his authority to maintain this cause of action, that he has no right to sue the county under this section, and states why he has no right to sue thereon. Where then is this authority giving the auditor right to sue the county for fees for his audit, when that section expressly states that when his audit discloses misfeasance, etc., the chief inspector in his capacity, as state auditor shall not be entitled to any commission or fee for the collection of any amounts disclosed by any examination or service made under the provisions of this section, or by any of the inspectors hereunder whether the collections were made by him, or any attorneys or deputies that he may employ in his capacity as state auditor or whether the said collections were made by the attorney-general or a district attorney.
The auditor does not have the right to go out and get attorneys to annoy and harass the county with suits in court. The auditor's department is a sub-division of this state, just as is the county, and the legislature has in its wisdom fixed a way for a quasi-judicial determination of disputes arising between this very department and the county.
There is no mention in the section that the auditing department may sue the county, and the only system that it may be collected is by referring the matter to the governor.
City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Jackson County v. Neville, 131 Miss. 599, 95 So. 626.
The part of section 3748 which says that the matter shall be left to the governor am l the decision of the governor shall be final is a special enactment providing a mode of settling disputes between the county in its capacity as part of the state and the auditor's department in its capacity as a part of department of the state; or in other words, disputes arising between departments of state.
25 R. C. L. 1010; White v. Lowery, 139 So. 876; Gully v. State Hwy. Dept., 145 So. 351.
Section 134, Constitution of the State of Mississippi, provides of the office of auditor and section 1113 and section 115 gives some of the duties of the office, but there is no place giving the auditing department the right to employ outside attorneys to sue a subdivision of the state.
Henry v. State, 88 Miss, 843, 39 So. 856.
We submit that if the auditor's department had ever had the authority to bring a suit against a subdivision of the state the statute, sec. 3748, definitely prevents it (where it is for services); because it states that in the event that there is a disagreement the matter "shall be left to the governor."
The department desiring to impose such a cost or charge upon another is the party to submit it to the governor, and with his approval the case becomes a closed book. The attorney-general then upon the refusal of the department so charged brings mandamus proceedings to require the department to perform the duty fixed by the statute. The governor's approval in this case is in effect an audit and allowance, and the court has held that in that case the proper procedure is mandamus.
Section 2348, Code of 1930; State v. Gillespie, 142 So. 747; Price v. Gillis, 168 Miss. 139, 151 So. 157.
The only tribunal open to these gentlemen is the governor's office and when he passes upon it they need not doubt that the amount fixed by the governor will be paid before the attorney-general can force them to so do by mandamus.
Where this court reverses the judgment of the circuit court overruling the plaintiff's demurrer to a plea, the judgment final will not be entered here against the defendant, but the case will be remanded so as to allow...
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