Edmondson v. Board of Sup'rs of Calhoun County
| Decision Date | 03 April 1939 |
| Docket Number | 33477 |
| Citation | 185 Miss. 645,187 So. 538 |
| Parties | EDMONDSON v. BOARD OF SUP'RS OF CALHOUN COUNTY |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled May 1, 1939.
APPEAL from the circuit court of Calhoun county HON. T. H. MCELROY Judge.
Action by H. P. Edmondson against the Board of Supervisors of Calhoun County, for writ of mandamus to compel the board to deliver certain warrants and to make levies of tax sufficient to pay them. From an adverse judgment, the plaintiff appeals. Affirmed.
Affirmed.
Thos L. Haman, of Houston, for appellant.
Plaintiff undertook to make proof of practically all matters of issue raised either under the general issue or by pleas. Defendant demurred to the proof introduced by plaintiff at the close of plaintiff's testimony and obtained a peremptory instruction to find for defendants, which action, of course assumed as true the testimony of plaintiff, drawing with it all such favorable inferences for plaintiff as the jury might have reasonably have drawn.
Lowe v. M. & O. R. R. Co., 116 So. 601, 149 Miss. 889; M. & O. R. R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Jefferson Standard Life Ins. Co. v. Jeffcoats, 143 So. 842, 164 Miss. 659; Keith v. Y. & M. V. R. R. Co., 151 So. 916, 168 Miss. 519; Gravette v. Golden Saw Mill Trust, 154 So. 274, 170 Miss. 15; Columbian Mutual Life Ins. Co. v. Gunn, 163 So. 454, 173 Miss. 897; Stricklin v. Harvey, 179 So. 345; Wheat v. Leche Lines, 179 So. 553.
Section 252 of the 1930 Code, until amended by Chapter 179, Laws 1932, approved February 19, 1932, required merely that a just claim against a county should first be presented to the board of supervisors for allowance, with right of appeal given only in case the board should refuse to allow it.
Chapter 202 Laws of 1932, Section 255 of the Code provides that demands against the county, if properly dated and itemized, shall be allowed or rejected. All of the allowances were for objects authorized by law. Only if the board shall refuse to allow a claim, is appeal or suit authorized. These claims were all allowed.
If the purpose of the required dating is solely to furnish the board information as a guide for investigation and evidence to be heard as to delivery or performance, it would seem that the board could investigate or hear evidence independently of such information. The requirement seems to us to be directory and affects only pleading. If a matter of pleading, it follows into any de novo trial and can be waived.
City of Okolona v. Chickasaw County, 157 So. 690, 171 Miss. 624.
Section 5979 provides that no warrant shall be issued or indebtedness incurred by any county unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness, but with the provision that such indebtedness may be incurred upon a petition of a majority of the qualified electors of the county.
Section 5977 requires that counties which have or may hereafter have legal and undisputed outstanding warrants or other legal obligations, and insufficient funds in the treasury to pay them, or any of them, to take same up by the issuance of bonds.
Section 5 of Chapter 235, Laws 1932, provides that no supervisors district may issue bonds in any amount, except to refund outstanding bonds, until May 2, 1934, that is, until two years after the effective date of the act.
Section 11 of the act, as amended by Chapter 47, Laws of 1935, effective October 2, 1935, provides for bonds or special levies by the counties to discharge and retire any legal indebtedness incurred prior to October 1, 1933, and evidenced by open accounts or other obligations of the county outstanding.
By Section 170 of the Constitution, the board of supervisors has full jurisdiction over roads and bridges, to be exercised in accordance with such regulations as the Legislature may prescribe (except as to state highways).
Code of 1930, sec. 6310, 6311 (amended Chapter 221, Laws 1934), 6312, 6313, 6340-6341, 6343, 6381, 6389, 6390, 6392 (amended Chapter 273, Laws 1936), 6394, 6398, 6413 and 6414; Sec. 7, Chap. 24, Special Session Laws of 1931; Chapter 247, Laws of 1934.
The Constitution gives to the board of supervisors full jurisdiction over roads and bridges to be exercised in accordance with such regulations as the Legislature may prescribe, but the responsibility laid upon and power given to the board may not be restricted, abridged or taken away by legislative regulation, or else the Legislature would have power by regulation to annul a very function of government, and destroy a power and responsibility vested by the Constitution.
We think that the Legislature is so limited in its power that it may prescribe only minimum standards to which roads must be kept with consequent expense, and that it may not prescribe maximum standards of construction and maintenance, as power is given only to board of supervisors to determine the necessity of the case.
We think that statutes, such as Section 5979, insofar as it undertakes to prevent the board of supervisors from incurring any indebtedness by the county for construction or maintenance of roads unless there be sufficient cash in the treasury to pay the debt, and such as Section 3 of Chapter 104, Laws of 1932, which undertakes to limit tax levies for road purposes, are restrictive rather than regulatory and undertake to abridge the power and responsibility of the board to construct and maintain roads, while the provision that no warrant shall be issued (if issuance means delivery or release for payment), unless there is money in the treasury to pay it, is regulatory only and merely withholds delivery of the warrant until money for its payment has accumulated in the treasury or been provided by order of the board.
Board v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Seal v. Donnelly, 60 Miss. 658; Monroe County v. Strong, 78 Miss. 565, 29 So. 530; Lang v. Harrison County, 114 Miss. 341, 75 So. 126; State v. Grenada County, 141 Miss. 701, 105 So. 541; Quitman County v. Self, 125 So. 828, 156 Miss. 273; Panola County v. Town of Sardis, 157 So. 579.
The required petition by a majority of the qualified electors of a county on behalf of a county or a supervisors district, seeking to incur an indebtedness for the general maintenance and construction of the roads in a district of the county, could hardly be expected, even if such authority could be delegated to petitioners. The exact amount of indebtedness, as required by the statute, could not be stated, because if the desire was to up-keep and construct the roads according to minimum standards, the expense would be unknown.
The members of the board were under oath to carry on the functions of government committed to their board. They did their duty as required of them. They made their estimates and tax levies, but taxes went uncollected and the revenue therefrom was insufficient with the other revenue to pay the expenses of maintenance and construction, notwithstanding which the board did maintain and construct the roads of the district in question as required, necessarily without paying as the expense was incurred, so that in January, 1932, there was owing therefor an amount in excess of $ 10, 000.
The (budget) law ought not to be so strictly construed as to make it impracticable to operate under it.
Board of Supervisors v. Cranford, 131 Miss. 770, 95 So. 676; Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 288.
Claims are not presented in the order of the date of the incurring of the debt, and no rule of law requires it.
The maintenance and construction of roads and bridges in ordinary course for which the annual levying of taxes is required by laws made mandatory, is a function assumed by the government of the state and imposed on the counties and supervisors districts for which full jurisdiction is given to the board of supervisors. We think that the law imposing this power and responsibility on boards of supervisors is dominant and controlling.
Choctaw County v. Tennison, 134 So. 900.
There was cash sufficient in the treasury in 1931 and January, 1932 to have paid any one of the warrants involved as the allowances were entered, but not sufficient to have paid all of the allowances of those dates in the aggregate. If the orders of allowance were void as to the allowances involved for lack of cash to pay all, then the orders of allowance under which warrants were written and eventually paid in very much larger aggregate amounts, were void, but their payment legalized because in good conscience the holders were entitled to receive and retain payment. How does the necessity for the protection of the interest of the county prevent payment in one case, and justice to the recipient prevent recovery of payment in an identical case. What distinction in matters of conscience and law lies between the two cases. Section 88 of the state constitution requests the Legislature to pass general laws under which private interests shall be provided for and protected. Does this not mean equally provided for and protected in keeping with the requirement of Article XIV of the Amendments to the Federal Constitution that no state shall deny to any person within its jurisdiction the equal protection of the laws. About $ 9000 in amount of exceeding $ 10, 000 in amount of unpaid allowances existing in January, 1932, all entered under precisely the same circumstances and conditions, have been legally paid because in good conscience the holders were entitled to payment, but certainly no more entitled to payment than the holders of the allowances involved. All of the allowances, both those paid and...
To continue reading
Request your trial