Flurry v. Jackson County
| Decision Date | 02 June 1924 |
| Docket Number | 24184 |
| Citation | 100 So. 279,135 Miss. 731 |
| Court | Mississippi Supreme Court |
| Parties | FLURRY v. JACKSON COUNTY. [*] |
COUNTIES. Employment of county bridge commissioner for one year fixing monthly compensation void.
Under section 5, chapter 276, Laws of 1920, an order of the board of supervisors employing a county bridge commissioner for a year and fixing his compensation at one hundred and twenty-five dollars per month is void because the statute does not authorize compensation except for each day of actual service rendered in the discharge of duties, not exceeding five dollars per day.
APPEAL from circuit court of Jackson county, HON. D. M. GRAHAM Judge.
Suit by J. L. Flurry against Jackson county. From a judgment sustaining a demurrer and dismissing the suit, plaintiff appeals. Affirmed.
Judgment affirmed.
L. W Maples, for appellant.
The appellant contends that: "it is shown on the face of the amended declaration that the order of the board of supervisors, under and by virtue of which the plaintiff claims to have been employed, and upon which this suit is founded was, and is, void because the board of supervisors were not authorized by law to employ such commissioner "for the year 1922," nor for any definite term or time other than by the day and for such days as he would be required to serve in the actual discharge of his duties as defined by the board of supervisors, and also because the board of supervisors were not authorized by law to fix the salary of such commissioner at one hundred twenty-five dollars per month; or otherwise than at a sum not to exceed five dollars per day for each day served in the actual discharge of his duties as defined by the board of supervisors."
This cause of demurrer is not well founded as the law provides: "That the board of supervisors, in addition to the present method of working public roads of any county or beat, thereof, may purchase implements, and material and employ labor and work and construct public roads and build bridges under the direction of a competent commissioner, to be employed by them, and the board of supervisors may do any and all things necessary to be done to work and construct the public roads and build bridges, as herein provided but all contracts for material and supplies in excess of fifty dollars shall be made on and after competitive bids for the same, and all labor shall be employed by and under the direction of said commissioner" (Hemingway's Code, secs. 7151, 7152, 7153, and 7154); and there is no provision in said law fixing the salary of said commissioner at the sum of five dollars per day or any other salary, and there is no provision prohibiting the board of supervisors from employing a commissioner by the month and for a definite term as "for the year of 1922." This is a broad and general statute authorizing the board of supervisors to do any and all things necessary to be done to work and construct the public roads and to build the bridges. This is a separate and independent method of working the public roads and building bridges from the law referred to by appellee in its cause assigned in support of its demurrer.
See Love v. Yazoo County, 111 Miss. 805, Chapter 177, Laws of 1916, provides an additional method for working roads independent of the Code of 1906, section 333. Ellis v. Darnell, 112 Miss. 129.
The appellant further contends in support of its demurrer that the words, in the order of the board of supervisors under and by which the plaintiff claims to have been employed and upon which this suit is founded, reading as follows: "For the year 1922," "and that his salary as such commissioner be fixed at one hundred twenty-five dollars per month," are each in contravention of the statute, therefore void and of no effect, but merely surplusage which can be stricken from the order and leave it a valid order." We have already shown that the board of supervisors had the right to employ appellant for the year 1922 and that it had the right to fix his salary as such commissioner at one hundred twenty-five dollars per month; and that neither the time for which he was employed nor the amount he was to be paid by the month is in contravention of the statute nor is it void or merely a surplusage to the order made and entered upon the minutes of the said board of supervisors; that the board of supervisors had the lawful authority to do each.
The law is made general in its purpose allowing the board of supervisors a wide latitude in which to exercise their judgment and discretion for the improvement and upkeep of the roads and bridges in their counties and beats. Martin v. Little, 115 Miss. 195; Bay St. Louis v. Hancock County, 130 Miss. 873; Lang v. Board of Supervisors, 114 Miss. 341.
Denny & Heidelberg, for appellee.
The authority of the board of supervisors to appoint a commissioner was dependent wholly upon compliance with the requirements of section 6, chapter 150, Laws 1910. Because the board made the order appointing appellant Bridge Commissioner, and the allegation in the declaration and the exhibition therewith of a copy of the order, does not carry with it the presumption that said act was in force in Jackson county. The court could not judicially know that it was. If the board had the power to appoint a commissioner, by having come under the provisions of said act, an averment to that effect in the declaration was necessary, and the failure to make such averment was fatal to the declaration, on demurrer. State v. Burkett, 83 Miss. 301, 35 So. 689; Bryant v. State, 65 Miss. 436, 4 So. 343; Norton v. State, 65 Miss. 297, 3 So. 665; West v. State, 70 Miss. 593, 12 So. 903; Hill v. Clay County, 58 Miss. 807; Howe v. State, 53 Miss. 57; Bullard v. Davis, 31 Miss. 523; Jefferson County v. Grafton, 74 Miss. 436; Lowndes County v. Hearn, 59 Ala. 371; Robb & Chicester v. Postal Telegraph & Cable Co., 104 Miss. 165, 61 So. 170.
The act is silent as to the term for which such commissioner might be employed, but provided that his "compensation shall not exceed five dollars per day for each day served in the actual discharge of his duties, as defined by the board of supervisors;" thus manifesting the intention of the legislature that such employment should not be for any definite, or fixed time, but only at such times, and for such days, as there would be work to be done on the roads; that such employment and payment for the service should be by the day, during the pleasure of the board of supervisors, or so long as, in the discretion of the board, the method of so working the roads, and the service of the person so employed, would best promote the general interest of the county or district. It was clearly the purpose of the legislature to place the matter within the control and discretion of the board, and for the board to exercise its control and discretion in such manner that, if at any time, the public interest would so require, the board could cease such method of road working, or cease employment of any person as commissioner.
It is familiar learning that "the board of supervisors can only bind the county by an affirmative act within the scope of its authority." Bridges v. Clay County, 58 Miss. 817, holds that Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; "that the powers of a county board of supervisors will be strictly limited to those conferred by statute." Adams v. First National Bank, 103 Miss. 744, 60 So. 770; that Adams v. Jackson Electric Power Co., 78 Miss. 687, 30 So. 58, also 79 Miss. 408, 30 So. 694.
Mindful of these restrictions on the authority of the board, and turning to the Statute of 1920 under which appellant was employed, appellee submits it is manifest that there is no lawful grant of power to the board of supervisors to contract with, or employ, anyone as commissioner for a year, or any definite period of time; and that it was intended by the legislature that the board should not surrender, or attempt to surrender, its right to employ and discharge such commissioner at any time that the public interest would require it. The board could not lawfully commit itself, or the county, irrevocably, to the employment of a commissioner for one year, regardless of whether or not the public interest would be served thereby, any more than it could employ such commissioner for ten, twenty or thirty years, which of course would be an absurdity and beyond the power of the board.
Moreover said order is void, because the board of supervisors were not authorized by law to fix the salary of such commissioner at one hundred twenty-five dollars per month. The statute limits the power of the board, in this particular, to a sum not in excess of five dollars per day served in the actual discharge of his duties--for each day only that work will have been done; whereas, the order fixes the salary at one hundred twenty-five dollars per month, which is in direct and positive conflict with the statute governing the matter. Appellant claims this order can be saved and rendered valid by treating certain clauses as surplusage, and...
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