National Surety Co. v. Miller

Decision Date21 October 1929
Docket Number27782
Citation155 Miss. 115,124 So. 251
CourtMississippi Supreme Court

(En Banc.)

1 OFFICERS. Members of public board, if acting in good faith are protected from consequences of erroneous decision on matten within their general jurisdiction.

Public board and members thereof, so long as they act in good faith and for honest motives and there is no express statute making them liable, are to be protected from consequences of erroneous decision when matter on which action was taken belonged to general class of cases within cognizance of board or was within subject-matter of general jurisdiction of board or within scope of such subject-matter.

2 OFFICERS. Rule protecting judge against liability for erroneous action applies to board having quasi-judicial powers if acting bona fide.

Rule protecting judge of court of general jurisdiction against liability for erroneous action in relation to matter within his jurisdiction applies to all boards which exercise semi-judicial or quasi-judicial powers, providing quasi-judicial officers act bona fide and without fraud or corruption.

3. LEVEES AND FLOOD CONTROL. Levee board empowered to build levees held authorized to contract for construction of levee and, though exceeding powers in amending contract, acted within general jurisdiction (Constitution 1890, sections 228-232; Laws 1884, chapter 168, sections 4, 27).

Where board of levee commissioners incorporated under Laws 1884, chapter 168; Constitution 1890, sections 228-232, was given general jurisdiction to build levees or to repair or construct same under Laws 1884, chapter 168, sections 4, 27, board had jurisdiction to enter into contract to build or repair levees and to pay contractor, and, though mistaking and exceeding legal powers in contracting for continuance of levee construction, nevertheless acted within scope of general jurisdiction.

4. LEVEES AND FLOOD CONTROL. Mistake of levee board in supposing prohibition against increased compensation applied only to legislature did not deprive board as matter of law of defense of good faith (Constitution 1890, section 96).

In suit by state revenue agent to impose personal liability on members of levee board for excess compensation paid contractors in violation of Constitution 1890, section 96, mistake of board, their attorneys, and attorney-general, in supposing that section 96 applied only to legislatures in prohibiting increased compensation after making of contract, held not so utterly indefensible as to divest members as matter of law of defense that they acted in good faith and committed honest error.

5. COURTS. Principles control decisions, but erroneous application in particular case does not overthrow principle.

Principles control decision, and when principle is clear, court applies facts of each successive particular case as best it can to that principle, and though erroneously done in some detail of one case, that alone does not overthrow principle.

6. LEVEES AND FLOOD CONTROL. Members of levee board held not individually liable for increased compensation unlawfully paid contractors under amended contract respecting subject-matter within board's general jurisdiction (Laws 1884, chapter 168, sections 4, 27; Constitution 1890, sections 96, 228--232).

Where board of levee commissioners for the Yazoo-Mississippi Delta was empowered by Laws 1884, chapter 168, sections 4, 27; Constitution 1890, sections 228-232, to build and repair levees, and board let contract for construction of levee, subsequent action in amending contract and providing for increased compensation to contractors was within subject-matter which was within general jurisdiction of board, though increase of compensation was prohibited by Constitution 1890, section 96, and hence members of board acting within scope of general jurisdiction and in good faith without fraud or corruption were not individually liable on their bonds for increased compensation unlawfully paid.

EITHRIDGE, J., dissenting.

HON. HARVEY McGEHEE, Chancellor.

APPEAL from chancery court of Leflore county, HON. HARVEY MCGEHEE, Chancellor.

Action by W. J. Miller, State Revenue Agent, against the National Surety Company and others. Decree for plaintiff, and defendants appeal. Affirmed in part and reversed in part.

Decree affirmed in part, reversed in part and bill dismissed.

Maynard, Fitzgerald & Venable, of Clarksdale, Wm. M. Hall, of Memphis, Tenn., and Pollard & Hamner, of Greenwood, for appellants.

A public officer, when acting in good faith, is never to be held liable for an erroneous judgment in a matter submitted to his determination.

Donahoe v. Richards, 38 Me. 379; Kendell v. Stokes, 3 How. (U.S.) 87; Crowell v. McFadden, 8 Cranch, 499; Tyler v. Cass County, 142 U.S. 288; Otis v. Watkins, 9 Cranch (U.S.) 339; Barry v. Smith, 191 Mass. 78, 5 L.R.A. (N.S.) 1028; Kendell v. Stokes, 44 U.S. 87; Commercial Trust Co. of Haggerstown v. Burch, 267 F. 907; Jenkins v. Waldron, 11 Johns 114; Olefiers v. Belmont, 159 N.Y. 550, 54 N.E. 1093; Comanche County v. Burks, 166 S.W. 470; Salt Lake County v. Clinton, 117 P. 1075, 39 Utah 462; Guild v. Goodwin, 94 Tenn. 486, 27 L.R.A. 660; Daniel v. Hathaway, 65 Vt. 247, 21 L. R.A. 377; Cocking v. Wade, 87 Md. 529, 40 L.R.A. 628; Black v. Brothers, 79 Conn. 676; Belks v. Dickinson County, 131 Iowa 244, 6 L.R.A. (N.S.) 831; 91 American State Reports 517.

Public officers in making contracts are acting judicially and where one makes a contract for a municipality which is invalid for want of authority, he is not personally liable thereon.

First, etc., Bank v. Whisenhurst, 127 S.W. 968, 94 Ark. 583; Olifiers v. Belmont, 159, N.Y. 550, 54 N.E. 1093; Commercial Trust Co. of Hagerstown v. Burch, 267 F. 907; Bell v. McKinney, 63 Miss. 187; Wilcox v. Williamson, 61 Miss. 310; Paxton et al. v. Baum, 59 Miss. 531; Paxton v. Arthur, 60 Miss. 832; Miller v. Tucker, 142 Miss. 145.

Members of the levee boards are public officers and exercise judicial or quasi-judicial functions.

State v. Levee Commissioners, 96 Miss. 677; Hamm v. Levee Commissioners, 83 Miss. 535; Acts of 1884, as Amended Acts 1888; Pidgeon-Thomas Iron Co. v. Leflore County, 135 Miss. 155; Bassett v. Fische, 75 N.Y. 303; Monies v. Godbold, 116 La. 165; 5 L.R.A. 463.

Members of levee board are not individually liable for increased compensation unlawfully paid contractors under amended contract respecting subject-matter within board's general jurisdiction.

Laws 1884, Chapter 168, sec. 4; Constitution 1890, sections 96, 228, 229.

Engle & Laub, of Natchez, for appellants.

Section 96 of the Constitution and section 100 of the Constitution do not govern a case where a new and different contract is entered into between the state or one of its subdivisions and a contractor on public work.

6 Ruling Case Law, p. 269.

The only way that a levee board or other public levee body can contract, is that the same should appear on the minutes of the board.

Acts of 1884, Chapter 168, page 141.

Shands, Elmore & Causey, of Cleveland, for appellee.

The provision of section 96 of the Constitution of 1890 prohibiting the legislature from granting extra compensation to a public contractor after contract made, binds not only the legislature but all subordinate state agencies created or controlled by it.

Clark v. Miller, 142 Miss. 123.

When a public officer goes outside the scope of his duty he is not entitled to protection on account of his office, but is liable for his acts like any private individual.

46 Corpus Juris 1043, 28 R. C. L., par. 153; 142 Miss. 144; Gray County, Texas, v. Hamer, 277 F. 155, 66 U.S. (L. Ed.) 258; Coughlin v. Gleason, 25 N.E. 4; Williamson v. Wilcox, 61 Miss. 310; Monnier v. Godbold, 40 So. 604.

Mere good faith on the part of public officers in making an improper payment of public funds is not recognized as any excuse whatever.

22 R. C. L. 463; Chippewa Bridge Co. v. City of Durand, 99 N.W. 603; Mueller v. Eau Claire Co., 84 N.W. 430; Northern T. Co. v. Snyder, 113 Wis. 516, 89 N.W. 460, 90 A. St. Rep. 867; Webster v. Douglas Co., 102 Wis. 181, 77 N.W. 885, 78 N.W. 451, 72 Am. St. Rep. 870; Egaard v. Dahlke, 109 Wis. 366, 85 N.W. 369; Burns v. Essling, 203 N.W. 605; Wilcox v. Parth, 143 N.W. 165; Neacy v. Drew City, 187 N.W. 218; Boyd v. United States, 29 L.Ed. 616.

If the court should hold that the members of the board are not personally liable for a willful violation of section 96 there will be a judicial repeal of such section, for if boards can with impunity ignore it the public revenue is without protection of any kind.

Argued orally by W. W. Venable, for appellant, and by A. W. Shands, for appellee.

Griffith, J. Ethridge, P. J., dissenting.


Griffith, J.

The board of levee commissioners for the Yazoo-Mississippi Delta was incorporated under chapter 168, Laws 1884, and sections 228-232 of the Constitution recognized and continued the said board in existence, with the jurisdiction conferred upon it now to be mentioned. By section 4 of the said chapter of said laws it was enacted that the said board "shall have power, and it is hereby made their duty to build, rebuild strengthen, elevate and maintain the levees upon and along the Mississippi river front, in and through the counties" of their district, and after further elaborations and grants in said section of this power, among which expressions is, "and may make all contracts for the work and all needful regulations and do all acts necessary to protect their said district from overflow by the waters of the Mississippi river," the act returns to the particular subject in section 27 and confers the widest discretion in these matters. Construing ...

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