Merchants' Bank & Trust Co. Scott County

• Decision Date: 13 February 1933
• Docket Number: 30395
• Citation: 165 Miss. 91,145 So. 908
• Parties: MERCHANTS' BANK & TRUST CO. et al. SCOTT COUNTY
• Court: Mississippi Supreme Court

145 So. 908

165 Miss. 91

MERCHANTS' BANK & TRUST CO. et al. SCOTT COUNTY

No. 30395

Supreme Court of Mississippi

February 13, 1933

Division B

1 COUNTIES.

"Legal advertisement" by county for bids for motor vehicles and road machinery contemplates three weeks' advertisement (Laws 1928, Ex. Sess., c. 61, sec. 1; Code 1930, secs. 239, 240, 246).

2 COUNTIES.

Advertisement stating county would receive bids for road machinery, for two weeks in two issues of newspaper only held not "legal advertisement," invalidating contract (Laws 1928, Ex Sess., c. 61, sec. 1; Code 1930, secs. 239, 240, 246).

3 COUNTIES.

Parties contracting with county are charged with notice of statutory requirements (Laws 1928, Ex. Sess. c. 61, sec. 1).

4. ESTOPPEL. Order of loard of supervisors reciting due advertisement for bids for road machinery and acceptance of bids held not to estop county, or officers, from asserting noncompliance with statute requiring legal advertisement which rendered contract unenforceable (Laws 1928, Ex. Sess., c. 61, sec. 1; Code 1930, sec. 246).

Order of county board of supervisors, reciting that advertisement was duly made for bids for road machinery, was not conclusive so as to work estoppel against county and its officers, because order did not recite what was done in way of compliance with legal requirements, or when proof of publication was actually made. Furthermore, order of board of supervisors was not judgment of court acting in judicial capacity, the minutes of which imply verity, but was a mere undertaking to certify generally, without reciting details of what was done in compliance with the law in making the contract.

HON. A. B. AMIS, SR., Chancellor.

APPEAL from chancery court of Scott county, HON. A. B. AMIS, SR., Chancellor.

Suit by the Merchants' Bank & Trust Company and others against Scott county. From a decree dismissing the bill, the complainants appeal. Affirmed.

Affirmed.

Green, Green & Jackson, of Jackson, and Jeff Kent, of Forest, for appellants.

Section 1, chapter 61, Laws 1928, Extraordinary Session provides:

"That boards of supervisors may purchase after legal advertisement, when the total amount of such purchases makes it necessary that such purchase be made upon competitive bids after legal advertisement thereof, trucks, tractors, motor vehicles, and road building machinery, and make a part payment in cash thereon, the balance to be paid in installments, and the deferred payments, above provided for, may be evidenced by an order of the board of supervisors, spread upon the minutes of said board, provided that the maturity of said deferred payments shall not extend beyond March 1st next succeeding such purchases, and in no event, beyond the term of office of the board of supervisors making such order."

True, there is a provision in our statutes (see section 4042, Hemingway's Code 1927), that payments shall not be made for bridges and other public work, except after inspection and acceptance, and that this must be entered on the minutes, but the furnishing of machinery and the like is not public work.

Peoples Bank v. Attala County, 126 So. 192, 156 Miss. 560.

Where there is a definition of a term, that same definition will be made applicable throughout the instrument, especially so when the legislature, as is here the case, reenacted this section with these precise terms used therein.

Harvey v. Johnson, 71 So. 824, 111 Miss. 566.

When there was to be a compliance with section 341, Code of 1892, there were three insertions, but when only a purchase, then one advertisement.

State v. Wall, 98 Miss. 521, 54 So. 5.

It has been specifically held that section 6064 applied to articles of this character and drew a distinction between section 6064, Code of 1930 and section 341, Code 1892.

Attala County v. Miss. Tractor, etc., 139 So. 628.

The supervisors having the right to do, and having induced appellant to rely upon that recited by their minutes, are not now privileged ot repudiate their obligation while they retain the use of the tractor, which they have consistently employed on the roads from that day until now.

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. It cannot impart verbal authority to the sheriff or any other person to contract for the county. The written obligation of the sheriff to Crump did not bind the county as a party to that contract, because there was not competent authority given by the board in the first instance, and there has been no subsequent ratification.

But since the county enjoyed the use of these five rooms, and such accommodations were necessary, the county is liable for the use and occupation on the principle of the quantum valebat.

Crump v. Board of Supervisors of Colfax County, 52 Miss. 107.

When the tractor was taken after the order of sale was revoked and continuously utilized by the county when there was work for it to be done, with a recital upon the part of the board of full compliance, they cannot escape obligation.

Henderson-Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716.

That kind of plunder which holds onto the property, but pleads the doctrine of ultra vires against the obligation to pay for it, has no recognition or support in the laws of this state.

Watts Mercantile Co. v. Buchanan, 92 Miss. 544; Peoples Bank v. Lamar County Bank, 67 So. 961, 107 Miss. 952; Tallahatchie D. Dist. v. Yocona-Tallahatchie D. Dist., 114 So. 264, 267, 148 Miss. 182; New Orleans & N.E. R. Co. v. Jemison, 110 So. 785, 787, 144 Miss. 890.

Resolute good faith should characterize the conduct of the public in dealing with individuals, and there is no good reason in morals or in law that will exempt it from the doctrine of equitable estoppel.

Jennings County v. Verbard, 63 Ind. 107; 21 C. J., page 1186, note 77.

When the supervisors, with full power to publish if they didn't do that of them by law required, certified by an adjudication on their minutes, specific and precise, that as to both the time and the place that the advertisement was as should have been, and then having so thus certified, and in virtue of that certification obtained this tractor, of which they are still in possession, they may not as against the bank, assert their failure to do that which they ought to have done, when they have asserted in the most solemn form by their minutes that they have not left undone that which they ought to have done.

Aberdeen v. Sykes, 59 Miss. 240; Vicksburg v. Lombard, 51 Miss. 126; Madison County v. Brown, 67 Miss. 697; Grenada County v. Brown, 112 U.S. 261, 28 L.Ed. 706; Cutler v. Supervisors, 56 Miss. 123.

The city had the right to purchase brick and use them on its streets; and it was right to hold it liable for that which it assumed to do without a contract when it might have done the thing if it had contracted to do so.

Church v. Vicksburg, 50 Miss. 605.

Actions of the board not involving jurisdictional power are conclusively right in collateral litigation.

Hinton v. Perry County, 84 Miss. 546.

The obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.

Marsh v. Fulton Co., 77 U.S. 676, 684, 19 L.Ed. 1040; Springfield Furniture Co. v. School Dist. No. 4 of Faulkner County, 67 Ark. 236, 54 S.W. 217; Howard County v. Lambright, 72 Ark. 330, 80 S.W. 148; School Dist. No. 47 v. Goodwin, 81 Ark. 143, 98 S.W. 696; Forrest City v. Orgill, 87 Ark. 389, 112 S.W. 891; Greenberg Iron Co. v. Dixon, 127 Ark. 470, 192 S.W. 379.

Wherein as against the state there were presumed certain things and an estoppel substantially created.

Carruth v. Gilliespie, 109 Miss. 670, 679, 68 So. 929.

Section 6382, Code of 1930 supplements by authorizing installment purchases section 6064, which had been in effect since Chapter 123, Laws 1912, amended chapter 206, Laws 1914, whereunder continuously from that date competitive bids had been taken without the three weeks advertisement as to this type of property, and this departmental interpretation in case of doubt should aid and is almost controlling.

Furniture Co. v. Miss. State Tax Comm., 133 So. 652, 160 Miss. 185.

Assume, contrary to the fact, that section 1, chapter 157, page 212, and section 6328 do apply, contrary to its express terms, to advertisement, the only provisions therein found is "due advertisement therefor," and there is no reason why the contracts should not be advertised for in accordance with section 239, for there is as to them no other express provision, but as to purchases, there is the express provision of Section 6064, whereunder since 1912, competition in bidding has been the sole requirement.

J. Knox Huff, of Forest, for appellee.

Chapter 61 of the General Laws of the Extraordinary Session of the Legislature of 1928 predicates the action of the board of supervisors and the contract of the county, in such matters, upon the jurisdictional requirement "after legal advertisement." when the total amount of such purchase makes it necessary that such purchase be made upon competitive bids.

The requirements of the legal advertisement are at least three weeks' published notice by advertisement in a public newspaper of the county, if there be one, and if not, by posting written or printed notices at the court house door and in each supervisor's district of the county, which notice shall distinctly state the thing to be done and invite sealed proposals to be filed with the clerk.

Sections 239, 240, Code of 1930.

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