Jones v. Little

• Decision Date: 22 October 1923
• Docket Number: 23535
• Citation: 97 So. 578,133 Miss. 403
• Court: Mississippi Supreme Court
• Parties: JONES, Chancery Clerk, v. LITTLE

97 So. 578

133 Miss. 403

JONES, Chancery Clerk, v. LITTLE

No. 23535

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

1 COUNTIES. Enabling act held not to authorize payment for bridge under void contract, except where sufficient funds at disposition of board when allowance made.

Chapter 634, Laws of 1922, does not conflict with chapter 326, Laws of 1920, but merely enables the county to pay for a bridge erected under a void contract, provided sufficient funds are at disposition of the board of supervisors at the time the allowance is made, or the debt incurred as provided by the latter-act.

2. COUNTIES Laws providing independent method of acquiring property by county held not to necessarily involve acquisition of and payment for bridge.

Sections 7134 and 7135, Hemingway's Code, chapter 170, Laws of 1916, provides an independent, but not exclusive, method of acquiring property by the county, and is not necessarily involved in acquiring and paying for a bridge by the county.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Smith county, HON. T. P. DALE Chancellor.

Suit by J. A. Little against W. H. Jones, Chancery Clerk. From a decree for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

Hilton & Hilton, for appellant.

It should be noted that chapter 364 of the Acts of 1922--"Smith county may pay J. J. Mangum for bridge. section 1. Be it enacted by the legislature of the state of Mississippi, that the board of supervisors of Smith county, Mississippi, are hereby authorized, in their discretion to pay J. J. Mangum the sum of four thousand, seven hundred seventy dollars in payment of a bridge constructed by the said J. J. Mangum across Ocohay Creek on the Mize and Raleigh road, said amount to be paid out of any proper funds at the disposition of the said board of supervisors. Section 2. That this act take effect and be in force from and after its passage. Approved March 10, 1922."--gives the board of supervisors the right and power to pay for this bridge out of any proper funds at the disposition of the said board of supervisors. The board of supervisors is not limited to the county funds, but the board of supervisors could pay for this bridge out of any proper funds at its disposition.

The court below reasoned this to be a private bridge on the public highway because of the decision of this court in Smith County v. Mangum, 89 So. 913, and reached the conclusion that section 7133 of Hemingway's Code is the remedy by which the county could take this bridge over, and because section 7135 as a general statute directing that bridges privately owned should be paid for either out of the general county funds or bond funds, that this bridge could be paid for in no other way.

The court below lost sight entirely of the proposition that sections 7133 and 7135 are general statutes. There is no question of the right of Smith county under the general statute (section 7133 of Hemingway's Code) to have acquired this bridge and paid for it as provided by section 7135, entirely out of the bond or county road funds; but it seems that Smith county did not want to thus acquire the bridge; hence this special enactment (chapter 634, Acts of 1922) which gave to Smith county in this special cause and under the special circumstances the right to take this bridge over and pay for same out of any proper funds at the disposition of the board of supervisors.

The court below made the great mistake of ignoring entirely chapter 634 of Acts of 1922, or making it so subservient to section 7135 of Hemingway's Code that its enabling power was completely annulled. There is no conflict between this chapter 634 of the Acts of 1922 and any other statute referred to or brought into this case. Is the order void because at the time the order was passed there were no funds to pay for same?

We think not for the reason that the general statute, chapter 326, Acts of 1920, to have any force and effect whatever construed to it must make an exception to section 3, chapter 326, of the Acts of 1920, which limits or curtails the right and power of the board of supervisors to contract an indebtedness unless there are funds to meet same.

In other words that the board might take on the burden of this as a debt and obligation and that same could be paid for out of any proper funds at the disposition of the board of supervisors.

Chapter 326, Acts of 1920, is intended to curb the board of supervisors in contracting more debts than the tax funds would pay as also the issuance of warrants before funds are in the treasury to take care of them. There is really no conflict in this special Act of 1922 and the Act of 1920. By its order the board designated the funds for the payment of this debt and there was no attempt to issue any warrant until the funds became available. The legislature recognized there was no debt; gave to the board of supervisors the right nevertheless to pay for this bridge, and created the payment as a debt, provided the board of supervisors saw fit to do so.

Counsel below relied on Marshall County v. Callahan et al., 94 So. 5, which case construes section 3, chapter 326, Laws of 1920, which amends section 3, chapter 209, Laws of 1918. The two together prohibit the issuance of a warrant or the contracting of an indebtedness of the board of supervisors when there are not funds available to take care of the warrant or indebtedness. To place the construction on the Marshall County case, supra, in its applicability to the case at bar, which counsel for appellee contends, would be to extinguish chapter 634 of Acts of 1922 entirely.

The court below sought to abridge the authority of the board of supervisors given by chapter 634 of the Acts of 1922 by the general statute, which had no bearing on the authority and power of the board of supervisors to act, and if it did the general statutes should not be made so rigid as to absolutely annul the power and authority granted under the special statute.

S. V. Little and Tullos & Martin, for appellee.

The agreed statement of facts show that at the time the board of supervisors passed the two orders allowing the payment to J. J. Mangum for said bridge out of Beat Three maintenance funds, there were no funds to the credit of the maintenance funds of said beat, and said orders were in violation of chapter 326 of the Acts of 1920, and therefore void.

Chapter 364 of Acts of 1922 authorized the board of supervisors to pay to J. J. Mangum, in their discretion, the sum of four thousand, seven hundred seventy dollars for the building of the bridge in question, out of the proper funds at their disposition. But we insist that the said board of supervisors had no...