Pearl River County Bank v. Town of Picayune
| Decision Date | 11 July 1921 |
| Docket Number | 21949 |
| Citation | 126 Miss. 473,89 So. 9 |
| Court | Mississippi Supreme Court |
| Parties | PEARL RIVER COUNTY BANK v. TOWN OF PICAYUNE |
MANDAMUS. Selection of municipal depository by mayor and aldermen not subject to review by mandamus.
Under chapters 253 and 257, Laws of 1914 (sections 4251--55, 4235 et seq., Hemingway's Code), the mayor and board of aldermen in the selection of a municipal depository are vested with discretionary powers, which powers are not subject to judicial review in a mandamus proceeding.
APPEAL from circuit court of Pearl River county, HON. A. E WEATHERSBY, Judge.
Petition for writ of mandamus by the Pearl River County Bank against the Town of Picayune. From a dismissal of the petition on demurrer, petitioner appeals. Affirmed.
Affirmed.
Gex Waller & Morse, for appellant.
It is conceded by the appellants herein that, in matters where the board has any discretionary power, that mandamus would not lie, in the absence of any showing of fraud on the part of said board. But we contend that since the statute states specifically the kind of security which shall be acceptable as security for a depository, that when the bidder offers the security set forth in the statute, that then there is no discretion left with the board as to the acceptance of the bid.
In order that the court may have all of the statutes applicable to this cause before it, we here refer to them, in order. Sections 4235, 4240, 4251 of Hemingway's Code. Did the appellant comply with the statute in making its bid?
Section 4199 of Hemingway's Code in reference to the state depository provides: "That the amount to be bid by any and all banks under the provision of this act for the privilege of keeping such funds on deposit shall be computed on the average daily balance of the public money kept therewith."
Section 4194 of Hemingway's Code provides that the money shall be placed on deposit with the bank proposing the best terms, having in view the safety of such funds. The bid of the Pearl River County Bank was to pay three and one-fourth per cent on the daily balances. This conforms to section 4199, above mentioned. It filed its bid in due time, and its security was not questioned.
Section 4240 of Hemingway's Code provides that any bank in a county may qualify as a county depository by placing on deposit with the treasurer "United States Bonds--or surety bonds of any surety company authorized to do business in the state of Mississippi." The bid of the appellant states that it offers a security for its bid, either, the bond of a security company authorized to do business in the state of Mississippi, or Liberty Bonds of the United States, pursuant to the laws of the state." Therefore it will be seen that the bid of the Pearl River County Bank complied literally with the statute, in every particular.
The fact that the discharge of a duty by a ministerial officer depends upon the construction of the statute defining that duty does not necessarily make that duty a judicial one giving the officer judicial discretion, and if the officer failed to perform the duty as set out by the statute, then mandamus is the proper remedy. See Roberts v. United States, 176 U.S. 219, 45 L.Ed. 445; also 26 Cyc, page 161, p. B.
The only remaining question is: Was Mandamus the Proper Remedy?
It not only was the proper remedy, but it is the only remedy open to the appellants to compel the performance of the duty on the part of public officers. See section 2533 of Hemingway's Code; see, also, case of Adam v. City of Clarksdale, 95 Miss. 97.
In conclusion we submit that the lower court erred in holding that it had no authority to compel the mayor and board of aldermen of the town of Picayune to accept the best bid for the money of said town, accompanied by security declared by the legislature to be sufficient, and especially does that error appear more grave when it is considered that the bid accepted was a bid in which two members of the board of mayor and aldermen were directly interested, and further, in view of the fact that the bid accepted was a bid which provided for security unauthorized by law, was not in conformity with the advertisement for bids, and was wholly illegal in form and in fact because against the law and the public policy of the state.
J. E. Stockstill and W. W. Stockstill, for appellee.
Does the statute in question clothe the board of supervisors or board of mayor and aldermen with any discretion in the selection of a depository? We submit that it does. Notice that under the provisions of chapter 253, Acts 1914, municipalities are required to select depositories in the manner provided for the selection of county depositories. Notice also that under section 2, chapter 194, Acts 1912, as amended by chapter 257, Acts 1914, the board is required to cause the funds to be deposited in the bank or banks proposing the best terms, having in view the safety of such funds" and further that under section 3 of the same act the board shall have the right to reject any and all bids where, in the opinion of the board, the security offered is not sufficient. While there is room for the argument that the phrase, having in view the safety of the funds, refers to the security offered and means the same thing as the right to reject a bid because of the insufficiency of such security, yet it seems clear to us that there is also room for the argument that it has a broader meaning and authorizes the board to select and accept from a number of bids the one which, in the opinion of the board, offers the safest security, even though there may be higher bids which offer security not considered wholly insufficient.
If the board has the authority under the provisions of section 2, chapter 194, Acts 1912, of its own motion after the bids are all in, to select more than one depository and divide the funds among them, and this seems to be the holding in the Powell case cited above, then it necessarily follows that the board has some discretion in the matter other than the right to pass upon the sufficiency or the insufficiency of the security.
From a consideration of the statutes quoted above it occurs to us that said board could have rejected both bids submitted and readvertised for further bids, and neither bank could have complained. There can be no question about the right of the board to reject any bid where, in its opinion, the security offered is insufficient, and we submit that it could have rejected appellant's bid even if it had been the only one received and did not have to state any reason for its action. Furthermore, under the provisions of section 2, chapter 353 Acts 1914, no bank can be selected as a municipal depository until its security has been approved by the board of mayor and aldermen; and it nowhere appears from the record in this case that the security offered by the appellant bank was approved, or even considered sufficient in the minds of the individual members of the board. A rejection of a bid without openly questioning the sufficiency of the security is by no means equivalent to an approval, or even an agreement or understanding among the members of the board that the security is not sufficient. The bond or security must be approved and in approving or disapproving bonds the board is clothed with a judicial discretion which the courts cannot control. In the case of Shotwell v. Covington, 69 Miss. 735, 12 So. 260, it was held that: "In approving or disapproving bonds of county officers, the president of the board of supervisors acts judicially, and however unjust or arbitrary his...
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