Magee v. Simpson

• Decision Date: 06 November 1933
• Docket Number: 30773
• Citation: 168 Miss. 318,150 So. 753
• Court: Mississippi Supreme Court
• Parties: MAGEE v. SIMPSON et al

150 So. 753

168 Miss. 318

MAGEE v. SIMPSON et al

No. 30773

Supreme Court of Mississippi

November 6, 1933

Division A

Suggestion Of Error Overruled January 1, 1934.

APPEAL from circuit court of Madison county, HON. W. H. POTTER Judge.

Proceeding by Mrs. Mamie Magee for a writ of mandamus to T. H. Simpson and others, constituting the Board of Supervisors of Madison county. From a judgment dismissing the petition, relator appeals. Affirmed.

Affirmed.

Ross R. Barnett, of Jackson, for appellant.

The proposition is too well settled to be controverted that a valid order of the board of supervisors duly entered on the minutes of the board is a judgment against the county which must be paid unless appealed from and reversed.

Arthur v. Adam & Speed, 49 Miss. 404; Campbell v. Humphreys County, 133 Miss. 410, 97 So. 722; George County v. Bufkin, 117 Miss. 884, 78 So. 841; Haley v. State ex rel. Mortimer, 108 Miss. 899, 67 So. 498; Crump v. Board of Supervisors, 52 Miss. 107; Carroll v. Board of Tishomingo County, 28 Miss. 38.

The order of the board of supervisors of Madison county, Mississippi, is not void because page and section of law not cited therein.

Sections 4400, 4401, and 4402, Code of 1906; Chapter 155, Laws of 1928; Sections 6340, 6341, 6342 and 6345, Code of 1930.

All of the proceedings of the board of supervisors of Madison county, Mississippi, in laying out this new road, were made and done in conformity with the sections of the code under the chapter on Roads and Bridges, supra, and all jurisdictional facts affirmatively found adjudicated and recited, and the allowance made Mrs. Mamie Magee was according to section 4402, Code of 1906, section 6342, Code of 1930.

It is the contention of the appellant that section 341, Code of 1906, being section 255, Code of 1930, pertains only to general claims against the county, and does not apply to the special statutory procedure and remedy allowed for taking of land under the chapter of the Code on Roads and Bridges.

The court has recognized the distinction between general claims against the county under chapter on boards of supervisors, and claims for damages for laying out, altering or changing a public road according to the chapter of the code on Roads and Bridges.

Ferguson v. Wilkinson County, 149 Miss. 623, 115 So. 779.

H. B. Greaves, of Canton, for appellees.

The order of the board of supervisors was void and no warrant should issue, because the section of the code, the book and page where found were not set out in the Order or Warrant.

Beck v. Allen, 58 Miss. 143; Clerk v. Allen & McCool, 65 Miss. 455; Bank v. Perry Co., 135 Miss. 129; American Oil Co. v. Bishop et al., 163 Miss. 249, 141 So. 271.

Argued orally by H. B. Greaves, for appellee.

OPINION

Smith, C. J.

This is an appeal from a judgment dismissing a petition for a writ of mandamus. The board of supervisors of Madison county made an order allowing the appellant damages sustained by her because of the laying out of a public road through her land. She failed to obtain the payment of the damages awarded her and filed this petition against the members of the board of supervisors, alleging, among other things, the county was without funds with which to pay, and prayed for a writ of mandamus directing the board of supervisors to levy a special tax for that purpose.

The record presents several interesting questions; but there is one at the threshold which, if decided against the appellant renders unnecessary...