Monroe County v. Strong

• Decision Date: 14 May 1900
• Citation: 29 So. 530,78 Miss. 565
• Court: Mississippi Supreme Court
• Parties: MONROE COUNTY v. WILLIAM B. STRONG ET AL. [*]

29 So. 530

78 Miss. 565

MONROE COUNTY v. WILLIAM B. STRONG ET AL. ^[*]

Supreme Court of Mississippi

May 14, 1900

October 1900

FROM the circuit court of Monroe county. HON. EUGENE O. SYKES Judge.

The opinion states the facts.

Case affirmed.

Calhoon & Green and Green & Green, for appellant.

The constitutions of 1832 (art. 4, sec. 20), 1869 (art. 6, sec 20) and 1890 (sec. 170), give the board of supervisors full jurisdiction over roads, ferries and bridges. This case is settled in its material features by the decisions in the cases of Rotenberry v. Yalobusha County, 67 Miss 470; Bank v. Duncan (defining "full jurisdiction"), 52 Miss. 745; Warren County v. Klein, 51 Miss. 807, and Gamble v. Witty, 55 Miss. 34. See code 1892, §§3937, 3938, and Dixon v. Greene County, 67 Miss. 794.

Walker & Tubb, on same side.

Congress, by act of July 7, 1898, having authorized the construction of the bridge over the Tombigbee river (an interstate stream), the supervisors needed (in fact already had by the state constitution itself) no further authorization from the state. Cardwell's case, 113 U.S. 205; Lake, etc., R. R. Co. v. Ohio, 165 U.S. 365; Escanaba Co. v. Chicago, 107 U.S. 678; Pound v. Turck, 95 U.S. 459; Gilman v. Philadelphia, 3 Wal., 713.

That the board had the power to adjudge the building of the bridge a necessity cannot be disputed. Constitution 1890, sec. 170; code 1892, § 289; Board v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Rotenberry v. Yalobusha County, 67 Miss. 470. The "regulations prescribed by the legislature" for the government of the board in the exercise of its "full jurisdiction" are found in code 1892, §§ 340, 341, 342 and 3937. These sections do not support the judgment appealed from. Code 1892, §§ 311, 312 and 313, have no application, as we submit, to the case.

Critz, Beckett & Kimbrough, on same side.

Code 1892, §§ 311, 312 and 313, were intended to enlarge and not to restrict the powers of the board of supervisors; besides § 313 is local, applies only to counties having more than 30,000 inhabitants, when the necessity of a bridge in such counties may not be greater than in those of a lesser number of inhabitants. Unless these sections are perverted from their true purpose, an enlargement of the powers of the board, they cannot be made to do service for the appellees in this case.

Houston & Houston, Bristow & Sykes, Gilleylen & Leftwich, George C. Paine and D. W. Houston, for appellees.

1. In the absence of authority from the legislature of the state the board of supervisors of a county has no authority to obstruct, by a drawbridge, with a central pier, a navigable river, like the Tombigbee, navigable both above and below the proposed bridge site, running through several counties of the state, thence into Alabama and thence into the Gulf of Mexico. Constitution 1890, sec. 81; Commonwealth v. Charleston, 1 Pick. (Mass.), 180, S.C. 11 Am. Dec. 161; Commissioners v. Withers, 29 Miss. 21; 4 Am. & Eng. Enc. Law (2d ed.), 923, and authorities cited; Bailey v. Philadelphia, etc., Ry. Co., 44 Am. Dec., 593; Attorney-general v. Stevens, 22 Am. Dec., 526; Dwyer v. Tuscaloosa, 2 Porter (Ala.), 296; Wisconsin v. Mouson, 51 Wis. 255; Fort Plain, etc., Co. v. Smith, 30 N.Y. 63.

2. Under the constitution and laws of the state of Mississippi the boards of supervisors have no jurisdiction over the construction of drawbridges of this character. Penn v. Wheeling Bridge Co., 18 How. (U. S.), 518; Allen v. Union Packet Co., 21 Wall. (U. S.), 395; Lake Shore, etc., R. R. Co. v. Ohio, 165 U.S. 363; Cardwell v. American, etc., Co., 113 U.S. 205.

3. For the construction of public works of the character and magnitude of this steel drawbridge, in the absence of ready money in the county treasury to pay for the same, the provisions of §§ 311, 312 and 313, code of 1892, are ample, proper and exclusive.

4. On general principles boards of supervisors, with their limited jurisdiction under the laws, have no authority to make appropriations of this character, without recurring to the legitimate source of all authority, the people, under statutory provisions made expressly therefor.

5. The jurisdiction of boards of supervisors over roads, ferries, and bridges, under the constitution of Mississippi, is not unlimited; it can only be exercised when and in the precise manner the legislature may prescribe, and there are no legislative regulations in this state warranting the contract annulled by the circuit court.

6. The levy of a tax sufficient to pay for this bridge and its approaches, in connection with the absolutely necessary expenses to keep the county from bankruptcy and anarchy, will be compelled to exceed the limit prescribed by the legislature for state and county taxation, and, therefore, to carry out this contract, a debt against the county is necessarily incurred.

7. Extraordinary expenditure, like that for the building of this steel drawbridge over a navigable stream, useless to ninetenths, of the people of the county, and at a point where there is already a free ferry, and where the river is fordable eight months in the year, will not, in the apportioning of a limited amount of money collected by taxation, be preferred to the necessary and ordinary expenses of the county, the courthouses, jails, paupers, county officers, etc., but will be subordinate to these necessary and ordinary expenses.

8. Even if the expenditures, including said bridge and approaches, should not exceed the limit of legal taxation, still, on general principles, the board of supervisors are not authorized to appropriate large sums of money like this for extraordinary purposes, of their own will, when there are express provisions for a referendum to the taxpayers.

9. The official bonds of $ 2,000 required from the members of the board of supervisors, as a security for any illegal act of such member, and there being a majority able to pass any illegal measure, $ 6,000 is the limit of the board's jurisdiction to appropriate money in the ordinary way. Over that sum a referendum to the people is provided in §§ 311, 312, and 313, code 1892.

10. The laws of Mississippi for all public expenditures require contracts to be made for and paid in cash, whereas it is admitted by the record in this cause that for a portion, if not all the two appropriations, $ 15,775 and $ 920, in this case, an indebtedness will be incurred against the county, and thus the county will not be on a cash basis, as required by law.

Argued orally by M. Green and Monroe McClurg, attorneygeneral, for appellant, and by D. W. Houston, for appellees.

OPINION

ALEXANDER, Special J.

The board of supervisors of Monroe county, at its regular meeting in October, 1898, passed an order for the construction of a steel drawbridge across the Tombigbee river, a navigable stream which intersects the county. Due advertisement was made for bids, with the result that the contract was awarded to the Southern Bridge Company, of Birmingham, Ala. for the sum of $ 15,775, one-half to be paid on completion of the bridge and the other half one year thereafter. This action of the board was taken in response to a petition of taxpayers requesting that the bridge be built. On the other hand, it met with active and determined opposition from other taxpayers, who appeared before the board in person and by attorneys and protested against the building of the bridge and against the making of this contract. The objections of these contesting taxpayers were overruled, and from the order of the board accepting the bid of the Southern Bridge Company and awarding the contract an appeal was taken to the circuit court. This appeal resulted in a judgment in the circuit court reversing the order of the board of supervisors. Thereupon the board readvertised for bids upon the same plans and specifications, but changed the terms of payment, and provided that the entire contract price should be paid in a common county warrant or warrants, to be issued at the first regular meeting of the board after the completion and acceptance of the bridge, which, by the terms of the contract, was to be completed on or before December 1, 1899. The contesting taxpayers again appealed to the circuit court and a second time secured judgment reversing the order of the board, and from this judgment the county prosecutes this appeal. At the August term, 1899, a contract was also entered into by the board in like manner, and after like protest, with one L. D. Booth to build the approaches to the bridge for $ 920, to be paid upon completion. The same contestants appealed from the order evidencing this contract, and the two causes were consolidated in the circuit court.

Several of the objections set out in the protest of the taxpayers relate to the expediency of the proposed action of the board, and much evidence was introduced for the purpose of showing that the bridge was not a public necessity, and was not demanded by any consideration of the public interests. These objections cannot be considered. Courts will not interfere with boards of supervisors in the lawful exercise of the jurisdiction committed to them by law on the sole ground that their actions are characterized by lack of wisdom or sound discretion. Rotenberry v. Yalobusha Co., 67 Miss. 470, 7 So. 211.

We do not deem it necessary to pass upon all the grounds set out in the protest against the action of the board. Some of them are trivial, and in any view of the case, would not call for notice. We pass to the consideration of the objection prominent in the argument of the case on both sides, and which must control our decision. This objection is that the amount which, under this contract, was to be paid for the bridge, when added to the county's...