H. L. Land v. Allen & McCool

• Decision Date: 16 April 1888
• Citation: 4 So. 117,65 Miss. 455
• Parties: H. L. LAND, CLERK, ETC., v. ALLEN & MCCOOL ET AL
• Court: Mississippi Supreme Court

4 So. 117

65 Miss. 455

H. L. LAND, CLERK, ETC., v. ALLEN & MCCOOL ET AL

Supreme Court of Mississippi

April 16, 1888

April 1888

APPEAL from the Circuit Court of Attala County, HON. C. H. CAMPBELL Judge.

On the 4th of January, 1888, the Board of Supervisors of Attala County made an order to the effect, "that Allen & McCool and H. C. Niles be employed and retained as county attorneys." On the 9th day of that month the attorneys mentioned brought an action in the name of the State, for the use of Attala County, against John T. Riley, ex-treasurer of that county, and the sureties on his official bond, to recover the value of certain United States bonds belonging to the county, and which Riley had conveyed to his own use or failed to deliver to his successor in office.

At the February, 1888, meeting of the Board of Supervisors, the attorneys reported to the Board their action in instituting the suit against Riley and his sureties; and thereupon the following order was made:

"STATE OF MISSISSIPPI, ATTALA COUNTY:

Order approving the action of attorneys in bringing suit, and allowing them a fee of $ 125."

SUPERVISORS' COURT, February 8, 1888.

"Ordered that the action of the county attorneys in bringing suit against John T. Riley, for the recovery of the United States Bonds, be hereby approved, and that they be paid the sum of $ 125 for their fee."

H. L Land, clerk of the Board of Supervisors, refused to issue a warrant in favor of Allen & McCool and H. C. Niles upon the foregoing order, and thereupon they presented to the Circuit Court a petition stating the facts above set forth, and asking for a mandamus to compel him to issue such a warrant. The clerk demurred to the petition on the grounds, that the Board of Supervisors had no authority to employ or pay attorneys except for special cases, and that the order relied upon by the petitioners was defective in not specifying the law under which it was made, and in not stating the names of the claimants. By the judgment of the Circuit Court the demurrer was overruled, and the writ of mandamus awarded as paid in the petition. Land, the clerk, appealed.

Judgment reversed and suit dismissed.

E. F Noel, for the appellant.

I insist that the provision of Sec. 2159 of the Code, requiring the page and section of the law under which an allowance is made, to be entered on the minutes with the order, is mandatory and not directory, and that the failure to make such entry would justify the clerk in refusing to issue the warrant.

It seems to me that the case of Supervisors v. Arrighi, 58 M., 668, overthrows both the proposition that the judgment of allowance in this case is conclusive, and that the Board can create a liability against the county by ratifying an unauthorized act.

Monroe McClurg, on the same side.

The original order, retaining appellees as "county attorneys" when no suit was pending, threatened nor anticipated, was void. Marion Co. v. Taylor, 55 Miss. 184.

Not having employed appellees according to the statute, the Board of Supervisors had not authority to approve what they had done when all necessity for it had ceased. Supervisors v. Patrick, 54 Miss. 240; Jefferson Co. v. Arrighi, Ibid., 668.

The statute requires supervisors to refer, by memoranda on their minutes, to the page and section of law authorizing allowances, and their orders must also show the name of the person, the amount allowed, and on what account allowed. § 2159, Code 1880. There being no such reference upon this order, it was the duty of the clerk to have exercised a discretion, and to refuse to become a party to an unlawful scheme. Ex parte Rowland. 04 U.S. 604; 18 Wall. U.S. 71; 95 U.S. 769; 99 U.S. 582,

Allen & McCool, and J. C. Niles, pro se.

It is immaterial whether there was previous direction to bring the suit brought by appellees or not, since an unauthorized act of attorneys and agents becomes authorized and valid by a subsequent ratification. The Board had legal authority to employ counsel, and a subsequent ratification of the unauthorized act of attorneys is equivalent to an original authority to do what was done by the attorneys, and the...