Hebron Bank v. Lawrence County

• Decision Date: 19 July 1915
• Docket Number: 17128
• Court: Mississippi Supreme Court
• Parties: HERBON BANK v. LAWRENCE COUNTY

69 So. 209

109 Miss. 397

HERBON BANK v. LAWRENCE COUNTY

No. 17128

Supreme Court of Mississippi

July 19, 1915

APPEAL from the circuit court of Lawrence county. HON. A. E WEATHERSBY, Judge.

Mandamus by the Herbon Bank against Lawrence county, to require the board of supervisors to levy a special tax to pay warrants issued by them. A demurrer to the petition was sustained, and petitioner appeals.

Section 4566, Code 1906, referred to in the opinion of the court, is as follows:

"Upon the presentation of a pay certificate for services rendered as a teacher, duly attested by the superintendent, the clerk of the board of supervisors, or of the municipality being a separate school district, shall issue a warrant on the treasury for the amount stated in the certificate, the warrant to state upon its face the number of the month of the term during which the services were rendered--as first month second month, etc.--and to specify the fund upon which it is drawn; the clerk shall keep a file of the certificates so received as part of the official records of his office, and shall be governed in every respect by the same laws that regulate the issuing of country or municipal warrants for other purposes, except that the warrants for teachers' salaries shall be issued directly upon the certificate of the county superintendent, without any action thereon by the board of supervisors or the mayor and board of aldermen by way of allowance or approval. For services rendered by teachers in public schools before the time when this chapter becomes operative, and for which a pay certificate or warrant has not been issued because of a want of funds in the treasury out of which to pay it, the board of supervisors or municipal authorities, as the case may be, are authorized to make proper allowances upon proof of such services rendered in good faith."

Section 4574, Code 1906, referred to in the opinion of the court, is as follows:

"The county common school fund shall be divided between the separate school districts of a county and that portion of a county not included in separate school districts. Within thirty days after every legal enrollment of educable children of the state, and within thirty days after the organization of a separate school district, or a change has been made in the limits of one already organized in the county, the county superintendent of education shall certify to the clerk of the board of supervisors the number of educable children, to be determined from the official roll of educable children on file in the chancery clerk's office, in each separate school district in the county, and the number of educable children outside the limits of separate school districts. At each regular meeting of the board of supervisors it shall be the duty of the clerk of the board of supervisors to apportion the amount of undivided county common school fund in the county treasury among the separate school districts of the county and the county outside of separate school districts, on the basis of the number of the educable children in each, as furnished by the county superintendent of education, and to certify the said apportionment to the board of supervisors, who, if the apportionment is found to be correct, shall order that a warrant be issued in favor of the treasurer of each separate school district for the amount due each district. At the first meeting of the board of supervisors after the passage of this act, all the poll tax collected since the last official report of the same to the auditor shall be divided as provided in this section."

Section 4627, Code 1906, referred to in the opinion of the court, is as follows:

"In any county where there are outstanding school warrants or indebtedness due teachers for teaching in the public schools the board of supervisors shall inquire into the justness of such unpaid claims, and if they believe it to be right and proper for the same to be paid, they may take up and cancel the same and cause a warrant to issue to the proper person on any county funds in the treasury for such amount as they may determine to be justly due. In counties where such outstanding indebtedness exists, and no funds on hand to pay it, the boards of supervisors of such counties may make a special levy, not to exceed one mill in any one year to pay the same."

Judgment reversed, and cause remanded.

G. Wood Magee, for appellant.

By sustaining this demurrer, the court puts appellant in the position of having to sue in an ordinary action based on these warrants and this I contend appellant would not be allowed to do under the unbroken line of decisions of this court.

Or the court says to appellant you must appeal to the legislature of the state for relief.

In this event, the legislature could only say to Lawrence county that the warrants may be paid if the county desires to pay them--could only encourage--not direct or command the county to pay them. This authority the county now already has without any enabling act of the legislature. The holder of these warrants cannot sue the county in an ordinary action based upon the warrants. Polk v. Supervisors, 52 Miss. 422. And especially is this true when by the board of supervisors or other proper authority the amount of the warrant is settled or adjudicated. Klein v Supervisors, 58 Miss. 540; Green v. State, 53 Miss. 148; Carroll v. Board of Police, 28 Miss. 38. The facts of this case on the pleadings as they stand now are in perfect harmony with the announcement of the law made by the court in the case of County v. Rhodes, 85 Miss. 500, because these warrants produced in court, copied in the record, recite what fund they are drawn on and what month's pay they are for.

If any of the items on the account sued on in this case are legal, mandamus should have been allowed by the lower court for such of them as are legal. Chattels v. Coahoma Co., 73 Miss. 352.

I therefore submit that all the pay warrants should have been allowed by the court because these are looked upon and recognized by the courts as judgments against the county, and an ordinary suit based on the warrants would put the creditor no nearer his money than he is now.

As stated above four of these were and necessarily had to be issued on the order or act of the board of supervisors, and the others were issued by the legally constituted authorities acting under section 4566 of the laws of the state.

The legal machinery of the financial part of our public school system is in a woeful, miserable condition if the local banks can't pay with perfect confidence the warrants issued to the poorly paid school teachers by the legally constituted authorities of the county.

I respectfully submit that the action of the lower court in sustaining the demurrer was erroneous and that the cause should be reversed and remanded.

McGeehee & Patterson, for appellee.

Section 335, of the Mississippi Code of 1906, provides that the board of supervisors of each county shall, at its regular meeting in September of each year, levy the county taxes...