Harvey v. Covington County

• Decision Date: 14 December 1931
• Docket Number: 29657
• Citation: 161 Miss. 765,138 So. 403
• Court: Mississippi Supreme Court
• Parties: HARVEY et al. v. COVINGTON COUNTY

138 So. 403

161 Miss. 765

HARVEY et al. v. COVINGTON COUNTY

No. 29657

Supreme Court of Mississippi

December 14, 1931

Division A

1 COUNTIES.

Validity of items of outstanding warrants and obligations cannot be adjudicated by chancellor in county bond validation proceeding, such objections constituting collateral attacks on county board's judgment (Code 1930, section 5977).

2 COUNTIES.

Failure of state's bond attorney to attend hearing in county bond validation proceeding did not invalidate proceeding (Code 1930, section 5977).

HON. T PRICE DALE, Chancellor.

APPEAL from chancery court of Covington county HON. T. PRICE DALE, Chancellor.

The Board of Supervisors of Covington county passed an order for the issuance of bonds, and at the validation proceeding, W. C. Harvey and others, taxpayers, appeared and filed objections to the issuance and validation of the bonds, and from a decree validating the bonds, the objectors appeal. Affirmed.

Affirmed.

E. L. Dent, of Collins, for appellants.

The bond attorney was not notified, and he did not appear and attend the hearing. This being a statutory requirement, the record should show that the bond attorney was notified, and that he appeared and attended the hearing. The statute appears to be mandatory and makes the state bond attorney a part of the court, and his presence is as necessary as that of the chancellor in a proceeding of this kind.

Sec. 313, Code of 1930.

Before a bond issue is authorized, the indebtedness must be of such character as to be legal and undisputed outstanding warrants or other obligations, and unless such indebtedness is legal and undisputed outstanding warrants or other obligations, the bond issue would not be authorized.

Sec. 5977, Mississippi Code of 1930.

Definitions of the word "legal" are:

1. Conforming to the law; according to law; required or permitted by law; not forbidden or discountenanced by law; good and effectual in law.

2. Proper or sufficient to be recognized by the law; cognizable in the courts; competent or adequate to fulfill the requirements of the law.

3. Cognizable in courts of law, as distinguished from courts of equity; construed or governed by the rules and principles of law, in contradistinction to rules of equity.

4. According to the principles of law, according to the method required by statute; by means of judicial proceedings; conformable to judicial law; conformable to the letter or rules of law as it is administered in the courts; lawful, opposed to that which is illegal or unlawful; that which is according to law.

Black's Law Dictionary.

The word "disputed" has a well defined meaning:

"To oppose by argument or assertion; to attempt to overthrow; to controvert; to express dissent or opposition to; to call in question; to deny the truth or validity of; as, to dispute assertion or arguments . . . seize goods under the disputed authority or writs of assistance; to strive or contend about; to contest; to struggle against or resist; to controvert; contest."

Webster's Dictionary.

The statute says that county cannot allow a claim without money in the particular fund wherewith to pay it. And if the board cannot allow the claim, it should not incur indebtedness, and therefore, neither the warrants issued are legal warrants or legal undisputed obligations.

Section 5979, Mississippi Code of 1930; Marshall County v. Callahan, 130 Miss. 271, 90 So. 5; Monroe County v. Strong, 78 Miss. 565, 29 So. 530; Universal Motor Company v. Newton County, 130 So. 791.

The board is the official organ of the county, and cannot be bound by any express contract unless its consent thereto is manifested by its official acts, in term time, entered on its records.

Crump v. Board of Supervisors, 52 Miss. 107; Russell v. Copiah County, 153 Miss. 459, 121 So. 133; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Amite County v. Mills, 138 Miss. 222, 102 So. 465, 737.

A county cannot, as to the subject-matters covered by section 344, be bound by an implied contract.

Groton Bridge & Mfg. Co. v. Board of Supervisors, of Warren County, 31 So. 711, 80 Miss. 214; Marion County v. Foxworth, 36 So. 36, 83 Miss. 677; Gilchrist-Fordney Co. v. Keyes et al., 74 So. 618, 113 Miss. 742; Bridges & Hill v. Board of Supervisors of Clay County, 58 Miss. 817; Lamar County v. Tally & Mayson, 77 So. 299, 116 Miss. 588; Jones, Chancery Clerk, v. Little, 97 So. 578.

All contracts made by the board of supervisors in violation of any of the provisions of law shall be void.

State v. Vice, 71 Miss. 912, 15 So. 129; State v. Wall, 54 So. 5, 98 Miss. 521.

Under section 4020, Hemingway's Code 1927 (section 341, Code 1906), an order of the board of supervisors allowing a claim is not a valid judgment unless it specifies the amount allowed, the page and section of law under which the allowance is made, and on what account.

Beck v. Allen, 58 Miss. 143; Land v. Allen, 65 Miss. 455, 4 So. 117; Newton County Bank v. Perry County et al., 135 Miss. 129, 99 So. 513.

On the hearing the chancellor may hear additional competent, relevant and material evidence under the rules applicable to such evidence in the chancery court, so as to inquire into the validity of the bonds or other obligations proposed to be issued, and enter a decree in accordance with his finding.

Jones, Chancery Clerk, v. Little, 97 So. 578.

This being direct and not a collateral attack on the orders and judgments of the board of supervisors, and the evidence excluded affects materially the validity of the bonds. Certainly no bonds would be validated to pay void indebtedness.

Bryant v. Yalobusha County, 133 Miss. 174, 98 So. 148; Choctaw County v. Tennison, 134 So. 900.

Hannah & Simrall, of Hattiesburg, for appellee.

The presence of the state bond attorney is not legally necessary at such a hearing; and appellants did not raise this question in the lower court.

The statute makes it mandatory for counties and municipalities where they have "legal and undisputed outstanding warrants or other obligations, and insufficient funds in the treasury to pay them, or any of them, to issue bonds."

Sec. 5977, Code of 1930.

In a suit for the validation of bonds, issued under section 5977, Code of 1930, the legality and validity of the outstanding warrants and obligations cannot be inquired into.

Pearce v. Mantachia School District, 134 Miss. 479, 99 So. 134; Bacot v. Board of Supervisors, 124 Miss. 231, 86 So. 765; Green v. Hutson, 139 Miss. 471, 104 So. 171; Board of Supervisors of Prentiss County v. Holley, 141 Miss. 432, 106 So. 644.

W. U. Corley, of Collins, for appellee.

In such a validating proceeding there can be no inquiry as to the legality of the obligations for the payment of which such bonds are issued as a collateral attack cannot be made.

Lincoln County v. Wilson, 88 So. 516; Board of Supervisors Prentiss County v. Holley et al., 106 So. 644; Jackson & E. Ry. v. Burnes, 113 So. 908; Liddel v. Noxapater, 92 So. 631; Dye v. Brewton, Mayor, 80 So. 761; Board of Commissioners v. School District, 15 Wyo. 73, 11 Ann. Cas. 1058; Peolle v. Oederen, 77 N.E. 251; Hemple v. Hastings, 113 N.W. 187; State v. Parcels of land, 113 N.W. 810; Lang v. Bayonne, 68 A. 90; Ward v. Gradin, 109 N.W. 57; Carthage v. Burton, 111 S.W. 440; Board of Education v. Berry, 59 S.E. 169; City of Topeka. v. Dyer, 3 Ann. Cas. 239; People v. Powell, Clerk, 113 N.E. 614; Shriver v. Day, 114 N.E. 918; Borrum v. Purdy Road District, 95 So. 677; Pearce v. Mantachie School District, 134 Miss. 479, 99 So. 134; Bacot v. Board of Supervisors, 124 Miss. 231.

The state bond attorney is no part of the court and it was a matter of indifference to the court, or the legality of its acts, whether he appeared or not.

Bacot v. Board of Supervisors, 86 So. 765.

Argued orally by E. L. Dent, for appellant, and by T. C. Hannah and W. U. Corley, for appellee.

OPINION

Cook, J.

Having insufficient funds in its treasury to pay its legal and undisputed outstanding warrants and other obligations, the board of supervisors of Covington county passed an order for the issuance of bonds in the sum of twenty-seven thousand five hundred dollars, for the purpose of taking up said warrants and other obligations, as authorized and required by section 5977, Code 1930, which reads as follows: "Every municipality and every county in this state which has or may hereafter have legal and undisputed outstanding warrants or other obligations, and insufficient funds in the treasury to pay them or any of them, is empowered and required to at once prepare for, and take up such warrants and other obligations from the proceeds of serial bonds which shall be issued for such purpose, as is provided by law for issuance of bonds for the payment of outstanding obligations. Such bonds to pay such outstanding obligations shall be issued regardless of the amount thereof, and no election shall be held on the question of the issuance of such bonds for the payment of such obligations, but the prompt issuance of sufficient bonds to pay all of such legal and undisputed warrants or other obligations is made mandatory on such counties and municipalities."

The order of the board of supervisors providing for the issuance of said bonds expressly adjudicated that the county had outstanding against the general county fund in allowed warrants and other legal obligations, the sum of fourteen thousand four hundred twenty-two dollars and ninety-one cents, and against the general county road and bridge fund the sum of thirteen thousand fifty-six dollars and forty-six cents, amounting in the aggregate to twenty-seven thousand four hundred seventy-nine dollars and thirty-six cents; that there were no funds in the county treasury to pay this...