Mississippi Road Supply Co. v. Hester

• Decision Date: 24 April 1939
• Docket Number: 33653
• Citation: 188 So. 281,185 Miss. 839
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI ROAD SUPPLY CO. et al. v. HESTER

188 So. 281

185 Miss. 839

MISSISSIPPI ROAD SUPPLY CO. et al. v. HESTER

No. 33653

Supreme Court of Mississippi, Division B

April 24, 1939

Suggestion Of Error Overruled June 5, 1939.

APPEAL from the chancery court of Copiah county HON. V. J. STRICKER Chancellor.

Bill by W. E. Hester, as a taxpayer, against the Mississippi Road Supply Company and others. From an adverse decree, the defendants appeal. Reversed and bill dismissed.

Reversed and bill dismissed.

L Barrett Jones and Chambers & Trenholm, all of Jackson, for appellants.

A board of supervisors has authority to purchase or lease machinery for road purposes.

Sec 170, Constitution; Quitman County v. Self, 156 Miss. 273, 125 So. 828; Sec. 6381, Code of 1930, as amended by chapter 196, Laws of 1932.

The term "implements, " regardless of its origin and former use, now includes printing presses, threshing machines, traction engines, steam engines, saw-mills (portable), cultivators and riding planters, lathes, a so-called buggy for elevating steel beams in bridge building, harvesters, portable engine and boiler with saw mill attachments, boot making machines, sewing machines, safes, etc.

Linde Air Products Co. v. American Surety Co., 168 Miss. 877, 152 So. 292; Reeves v. Bascue, 76 Kan. 333; Advance-Rumley Thresher Co. v. Evans, 103 Kan. 532; Jackman v. Lambertson, 71 Kan. 138; Bliss v. Vedder, 34 Kan. 57; In re Robinson, 206 F. 176; Seiler v. Buckhold, 293 S.W. 210; Pluckham v. American Br. Co., 93 N.Y.S. 784, 104 A.D. 404; Eckman v. Poor, 38 Col. 200, 87 P. 1088; Stemmer v. Scottish Union & Nat. Ins. Co., 33 Ore. 65, 49 P. 588, 53 P. 498; Daniels v. Hayward, 87 Mass. 43, 81 Am. Dec. 731; State v. Creech, 18 Wash. 186, 51 P. 363; Jenkins v. McNall, 27 Kan. 532, 41 Am. Rep. 422; Allee v. Waters, 17 Ala. 482; Talcott v. Meigs, 64 Conn. 55, 29 A. 131; In re McManus Est., 87 Cal. 292, 25 P. 413; Rayner v. Whicher, 88 Mass. 292; In re Robb, 99 Cal. 202, 33 P. 890; Spencer v. Smith, 121 Cal. 536, 53 P. 653; In re Kemp's Est., 119 Cal. 41, 50 P. 1062; Reg. v. Malty, 8 Ellis & B. 712; A. Wilbert's Sons Lbr. Co. v. Ricard, 119 So. 411.

Section 6381 as amended, is now the sole authority on the manner of constructing, reconstructing and maintaining roads by boards of supervisors, and we submit that when it is considered in its entirety it is manifest that the Legislature did not intend by the use of the word "implements" to limit a board of supervisors to hand tools for road work. Boards are given wide discretion as to having a commissioner or not, as to doing the work itself or letting contracts, and as to the use of funds, as well as being authorized to do "any and all things necessary, " the only express limitation being as to the duration of contracts.

Upon the history of section 6381 as amended, the word "implements" as therein used must be taken to have the same meaning as the word "equipment, " and the latter has been defined by this court as the "outfit, i. e., the tools, machinery, implements, appliances, etc., necessary to enable one to do the work in which he is engaged."

Linde Air Products Co. v. American Surety Co., 168 Miss. 877, 152 So. 292.

If the Legislature intended that boards of supervisors should not have the power to purchase or hire road machinery after it had repealed section 6382 of the Code of 1930 (the installment purchase statute), then why did it not repeal or suitably amend section 244 of that code, prohibiting members of the boards of supervisors from furnishing road machinery for the construction and maintenance of public roads, and section 217 authorizing the leasing or purchasing of grounds and buildings for storing county or district road machinery and trucks?

Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900.

Appellee, as a citizen and taxpayer, cannot maintain this suit as against appellants.

American Oil Co. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801, 104 So. 70; Weissinger v. Davis, 112 Miss. 625, 73 So. 617; Donald v. Staufer, 140 Miss. 752, 106 So. 357; McKee v. Hogan, 145 Miss. 741, 110 So. 775; State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566; Blakely v. Grenada County, 171 Miss. 652, 158 So. 483; Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Lincoln County v. Green, 111 Miss. 32, 71 Miss. 171; Gully v. Thomas, 171 Miss. 749, 158 So. 465.

We submit that the appellee has no right to attempt to control, by injunction, the acts of a board of supervisors within the scope of their authority, whether lawfully performed or not, and no right to maintain this suit to test, by injunction, the validity of the contracts between the board and appellants, and no right to maintain this suit to require these appellants to refund to the county the money paid to them. In fact, it appears that he has no right to maintain it at all, for any purpose within the scope of his bill.

We unhesitatingly assert that the contract here involved cannot be construed as anything but a lease, with an option to purchase.

Nobles v. McCarty, 61 Miss. 456; Puffer Mfg. Co. v. Dearman, 97 Miss. 622, 54 So. 310.

The board of supervisors is part of the judicial department of the state, under section 170 of the Constitution.

Haley v. State, 108 Miss. 899, 67 So. 498.

Where the record shows or recites the jurisdictional facts, the order of the board has all the effect of a judgment of a court of general jurisdiction, and cannot be attacked except by direct appeal.

Borroum v. Purdy, 131 Miss. 778, 95 So. 677.

Section 61 of the Code of 1930 provides for a direct appeal to the circuit court, without bond, by any person aggrieved.

A judgment of a court having jurisdiction of the subject-matter and the parties is res adjudicata of all questions which were necessarily involved, and which could have been presented, and not merely questions actually presented by the pleadings.

Dean v. Board of Supervisors, 135 Miss. 268, 99 So. 563; Bates v. Strickland, 139 Miss. 636, 103 So. 432.

Many other cases might be cited on the proposition that judgments of a board of supervisors which recite the jurisdictional facts, or judgments based upon a record showing the jurisdictional facts, are not subject to collateral attack, but can be reached only by direct appeal.

Arthur v. Adams & Speed, 49 Miss. 404; County of Yalobusha v. Carbey, 3 S. & M. 529; Attala County v. Grant, 9 S. & M. 77; Powell v. Tishomingo County, 28 Miss. 38; Beaman v. Leake County, 42 Miss. 237; George v. Bufkin, 117 Miss. 844, 78 So. 781; Madison County v. City of Canton, 171 Miss. 547, 158 So. 149.

We respectfully submit that all of the orders of the board of supervisors complained of by appellee which affect these appellants fully recite the jurisdictional facts, or are based upon a record which discloses such facts, hence they are not subject to collateral attack in this proceeding.

Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900.

As much as we regret having to go back to a subject which we had thought closed, we ask the indulgence of the court, and refer to the provision in section 6381 as amended with respect to the right of the board to "do any and all things necessary to be done to work, construct, reconstruct and maintain the public roads, " in which connection we call attention to the case of Town of Magee v. Mallett, 178 Miss. 629, 174 So. 246, in which this court held that under a provision in a statute with respect to the establishment of airports authorizing a municipality "to do all things and perform all acts necessary, proper or desirable to effectuate the full intent and purpose of this act, " the municipality had the authority to contract and pay for proper or necessary engineering work in connection with the airport. By the same token the purchase or hire of road machinery should come within the provision of section 6381 as amended.

Whitfield Pierce, of Jackson, and W. S. Henley, of Hazlehurst, for appellee.

Contracts in question are in fact installment purchase contracts and not leases.

71 A L. R. 1318, 1319, 1321 and 1323; American Can Co. v. White, 197 S.W. 695; Arnold v. Chandler Motors of R. I., 123 A. 85; Brunswick & Balke Co. v. Hoover, 95 Pa. 508; Babcock v. Williams, 75 Minn. 147; Billings v. Bankers' Bond Co., 199 Ky. 490; Baltimore & O. R. Co. v. People, 200 Ill. 541; Bryant v. Oakland City, 171 N.E. 378; Burr v. Gardella, 200 P. 493; Bramhall-Denee Co. v. McDonald, 158 N.Y.S. 736; Bank of Secured Savings v. Rudolph, 83 Pa. Super. Ct. 439; Sec. 6382, Code of 1930; Chapter 205, Laws of 1932; Clifton v. Norden, 178 Minn. 288; 3 Am. & Eng. Enc. Law, 426; Earles v. Wells, 94 Wis. 285; Enterprise Distributing Corp. v. Zalkin, 113 S.E. 409, 154 Ga. 97; Farquhar v. McAlevy, 142 Pa. 233; Grow v. Washburn, 115 A. 226, 95 Vt. 370; Herryford v. Davis, 102 U.S. 235; Ham v. Cerniglia, 18 So. 577; Hall v. Cedar Rapids, 115 Iowa 199; Hogan v. Anthony, 182 P. 52; Hartford Trust Co. v. Puritan Laundry, 111 A. 149; Hurnanen v. Nicksa, 117 N.E. 325; Hays v. Weikel & Marks, 76 Pa. 465; Jones v. Rutherford, 225 Ky. 773; Motor Power Equipment Co. v. Park Transfer Co., 247 N.W. 244; Mahoney v. San Francisco, 201 Cal. 248; Nobles v. McCarty, 61 Miss. 456; Oppenheimer v. Telhiard, 85 So. 134; Puffer Mfg. Co. v. Dearman, 54 So. 310; Press Printers & Publishers, 4 F.2d 159; Owen & Co. v. Keller, 173 N.W. 343; McCrary Co. v. City of Glennville, 100 S.E. 362; Mathewson v. Brigman Motors Co., 98 S.E. 98; Kelly Springfield Road Roller Co. v. Spyker, 215 Pa. 332; Reynolds v. Waterville, 92 Me. 292; Russell v. Martin, 122 N.E. 447; Stern v. Drew, 285 F. 925; Straus v. Victor Talking Machine Co., 243 U.S. 490; Spilman v. Parkersburg, 35 W.Va. 605; Re San Francisco, 195 Cal. 426; Stern v. Drew, 285 F. 925; Schmidt v....