Jackson County v. Neville

• Citation: 131 Miss. 599,95 So. 626
• Decision Date: 12 March 1923
• Docket Number: 22727
• Court: United States State Supreme Court of Mississippi
• Parties: JACKSON COUNTY v. NEVILLE

95 So. 626

131 Miss. 599

JACKSON COUNTY v. NEVILLE

No. 22727

Supreme Court of Mississippi

March 12, 1923

CONSTITUTIONAL LAW. Statute empowering circuit judge and Governor to pass on accountant's bill for services is constitutional.

Laws 1914, chapter 241 (Hemingway's Code, section 4783) empowering the circuit judge and governor to pass on reasonableness and correctness of account for services of accountant appointed to audit county books, does not violate Constitution 1890, section 1, dividing the powers of government into three distinct departments, as the Governor and circuit judge are simply constituted an administrative board, and not a court.

2. CONSTITUTIONAL LAW. Hearing on bill of accountant appointed by governor not a judicial proceeding, and due process is not required.

Under Laws 1914, chapter 241 (Hemingway's Code, section 4783) provided that bill of accountant appointed to audit books and accounts of county officers shall be submitted to circuit judge, and then to governor for approval, the hearing before the circuit judge and governor is not a judicial proceeding and due process is not required.

3 COUNTIES. Revenues are subject to control of legislature, and it may direct their application to particuar purpose.

Revenues of county are not its property in the same sense as revenues of private person or corporation, but are subject to control of legislature, and, when it directs their application to a particular purpose, the obligation to so pay is imposed on the county.

4. COUNTIES. If hearing on bill of accountant requires presence of

parties, board sufficiently represents county.

If hearing before board composed of circuit judge and governor as to correctness and reasonableness of bill for services of accountant appointed to audit books and accounts of county officers is such a proceeding that the parties in interest have a right to be present, the statute provides for such presence, as the board represents the county.

5 COUNTIES. States. Finding of governor as to sufficiency of petition to appoint accountant, and finding of governor and circuit judge as to reasonableness of bill for examination of accounts, held not subject to review.

Under Laws 1914, chapter 241 (Hemingway's Code, section 4783), providing that bill for services of expert accountant appointed to audit county's books and accounts shall be submitted to the circuit judge and governor for approval, and that the act shall apply only when Governor is petitioned by electors to appoint accountant, the governor's finding that twenty-five per cent. of the qualified electors have petitioned for an examination of the record and the finding of the governor and circuit judge as to the correctness and reasonableness of the accountant's bill are final when the authority conferred is exercised within statutory limits.

6. STATES. Examiner of accounts cannot be allowed more than seven

dollars a day or anything for services of assistants. Under Code 1906, section 2389 (Hemingway's Code, section 4781), examiner of accounts appointed by the governor under the preceding section is limited to seven dollars a day while actually employed, and cannot sublet the work or employ others to do it, and charge for their services, and, under Laws 1914, chapter 241 (Hemingway's Code, section 4783), the governor and circuit judge cannot approve his account for any sum beyond seven dollars a day and cannot allow any amount for services of assistants.

7. STATES. Statute held not to authorize appointment of accountant in case not previously authorized.

Laws 1914, chapter 241 (Hemingway's Code, section 4783), providing for approval by the governor and circuit judge of bill of accountant appointed to audit books and accounts of county, and providing that the act shall apply only when twenty-five per cent, of electors petition for appointment of accountant, does not authorize appointment in any case not previously authorized, but merely provides for payment by the county when electors petition for the audit.

8. STATES. That examiner of accounts appointed for certain county does not affect validity of appointment.

That, in commissioning the examiner of accounts appointed under Code 1906, section 2388 et seq. (Hemingway's Code, section 4780 et seq.), he is named as examiner for a certain county, does not affect validity of his appointment.

9. STAIES. To recover for services examiner of accounts held bound to allege and prove issuance and delivery of commission.

Under Code 1906, section 2390 (Hemingway's Code, section 4782), providing that commission shall issue to examiner appointed by Governor to audit and examine county books and accounts, the commission is the only evidence of his authority and is indispensable, and it is essential to a recovery for services that the examiner allege and prove the issuance and delivery of the commission.

10. COUNTIES. Not sufficient to approve accountant's Mil as reasonable only.

Under Laws 1914, chapter 241 (Hemingway's Code, section 4783), providing that bill for services of accountant appointed by the governor to audit county books and accounts shall be approved by the county judge and governor if found correct and reasonable, an approval of the bill "as reasonable" does not comply with the statute.

HON. C. L. RUSHING, Special Judge.

APPEAL from circuit court of Jackson county, HON. C. L. RUSHING, Special Judge.

Action by J. H. Neville against Jackson county. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Denny & Heidelberg, for appellant.

We submit that every cause of demurrer set up by appellee, except the first cause to the first plea to the declaration is fully answered and overcome by sections 341 and 343, Code 1906 (Hemingway's Code, sections 3714 and 3716).

Under the allegations of the declaration, there was offered the board of supervisors no proof of lawful authority or duty to audit the books of said county; no proof of what books were audited; no proof of any authority in appellee to charge the per diem for himself and alleged assistants claimed in his said statement; no proof that said claim was correct, other than the mere certificate of the Judge and Governor that same is reasonable, whereas, the statute requires that such officers shall certify that the claim is both correct, and reasonable; no proof that the claim was not for a greater sum, dollar for dollar, than would have been actually due thereon had the claim otherwise been valid; no proof that appellee had made report of the result of said audit, under oath, to the Governor. Therefore, it would have been unlawful to have allowed said claim as it is shown by the pleadings here to have been represented, and it cannot be charged that the board of supervisors passed upon the claim, upon its merits, and until such shall have been done, this suit cannot be maintained.

Appellant submits that the first ground of error to the first plea to the declaration puts in issue the only question, or the chief question, to be answered in this case.

The Act of 1914 (section 4783, Hemingway's Code), provides that: "such accountant shall submit his bill for services, itemized, to the circuit judge of the district whose duty it shall be to approve the same, if found reasonable and correct. And thereupon the said account with a copy of the order of the judge, or court, shall be sent to the Governor for his approval, who if he shall find the same correct and reasonable, shall approve the same and thereupon it shall be the duty of the board of supervisors of the county the books of whose offices are audited, to allow said account." There is nothing in the act releasing the board of supervisors from the duty and responsibility of requiring due proof of the claim as a prerequisite to its allowance, as provided in said code section 341, nor relieving the board of liability for its allowance if not a lawful claim, under said sections 343 and 344 of code.

The act does not take from the board of supervisors any of its powers or duties pertaining to such matters. By the terms of said act, appellee was merely required to submit an itemized bill for his services to the judge and governor,--not proof of it even by oath of the accountant. Neither the judge nor the Governor are authorized to pass upon the validity of the claim, or any other matter or thing pertaining thereto, other than the correctness and reasonableness of the bill submitted to them. No more is meant by the clause in the act that "it shall be the duty of the board to allow the account," than is meant by statutory requirement in reference to any other claim presented to the board for allowance, which is: to allow it, if valid, just and due. The authority, duty and liability of the board of supervisors is not restricted, nor, in any manner affected, by such clause in said act. The board is no more bound by the certificates of the judge and Governor in this matter, than it is bound by the oath of the property owner, in giving in his assessment, and also by the oath of the assessor or the completion and filing of the assessment roll. There, it has the affidavit of the property owner as to the valuation of his property, and also the affidavit of the assessor that he has not placed upon or accepted an under-valuation of any property; yet, and notwithstanding these affidavits, the boards of supervisors are required to review and equalize such assessments according to the judgment of the members thereof, and on such proof as may be submitted. However, notice to the property owner must be given before any increase in the assessment is made, to render it valid, regardless of any statutory requirement therefor, because of the constitutional right of the...