Robb & Chichester v. Postal Telegraph-Cable Co.

• Decision Date: 10 March 1913
• Docket Number: 15,745
• Citation: 61 So. 170,104 Miss. 165
• Parties: ROBB & CHICHESTER v. POSTAL TELEGRAPH & CABLE CO
• Court: Mississippi Supreme Court

61 So. 170

104 Miss. 165

ROBB & CHICHESTER v. POSTAL TELEGRAPH & CABLE CO

No. 15,745

Supreme Court of Mississippi

March 10, 1913

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Suit by Robb & Chichester against the Postal Telegraph & Cable Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Wells &amp Wells, for appellant.

The court bases its peremptory instruction on the ground alone that the contract was void because the board of supervisors did not give the required three weeks' notice of the letting of said contract.

Our answer to this is:

1. That the notice put in the evidence gave notice of the February meeting, when the contract was awarded at the March meeting therefore, the notice given of the February meeting could not have any effect on the meeting held the first Monday in March.

2. The meeting in March was held according to law and the order made at that time was a distinct finding that the proper notice had been given and there is nothing in the record to contradict it, and this recital is conclusive. We cite the following to sustain this proposition: Yallabusha v Carben, 3 S. & M. 529; Ross v. Lane, 3 S. & M. 695; Carroll v. Tishomingo County, 6 Cush. 38.

3. But if there was no such recitation and the record is silent as to notice, then the presumption of law is that the board did its duty and the contract is valid, Briggins v. Chandler, 60 Miss. 862; Carburn v. Crittendon, 62 Miss. 136; Cason v. Cason, 31 Miss. 578; Hinton v. Perry County, 84 Miss. 536.

4. But if it be true that the contract was invalid, we contend that it cannot be collaterally attacked as is sought to be done here, and only the parties to it, the County of Hinds and Robb & Chichester, could take advantage of its invalidity in a litigation between them. Cason v. Cason, 31 Miss. 578; Hinton v. Perry County, 84 Miss. 536; Cannon v. Cooper, 10 Ga. 784; Monk v. Horne, 9 Ga. 100; Southern Bithulithic Co. v. Hughston, 58 So. 450; Grisham v. Lutric, 76 Miss. 444; Chaffe v. Benoit, 60 Miss. 34.

5. We further contend that no failure to give twenty-one day's notice is shown by the record; the court sat according to law six days, and the advertisement gave notice that the matter would be let at that term, beginning the first Monday in February and it is not shown that the matter was not taken up and adjudicated more than twenty-one days from the first publication.

6. The pleadings in no way give notice that the invalidity of the contract would be insisted upon as a defense to the action and it was error to admit any evidence on this point. Southern Bitulithic Co. v. Hughston, 58 So. 450; Grisham v. Lutric, 76 Miss. 444.

7. Both parties treated the contract as valid and fulfilled each its obligations and it is not lawful to allow a third person to insist that the contract was void after its terms, without objection, had been complied with by the parties to it. Grisham v. Lutric, 76 Miss. 444.

We respectfully submit that this case should be reversed and remanded.

J. T. Brown and Flowers, Alexander & Whitfield, for appellee.

Appellants attempted to show a valid contract with the county providing for the maintenance of the public roads in controversy, but failed to do so in that the minutes of the board of supervisors and proof of publication of notice introduced by them shows affirmatively that notice as required by statute for the letting of contracts was not given.

We have shown that, 1st, the wrong complained of was a public wrong; before a private citizen can maintain a suit for a public wrong it is necessary to show special damage to himself. Since no special damage to the person or property of appellant has been shown, his right to recovery must depend upon the existence of a contract whereby the duty of the county to repair the roads has been shifted to him. Has appellant shown such a contract? Was the existence of such a contract a condition precedent to plaintiff's recovery? These are the only questions presented by the record. We submit that appellant failed to show such a contract and that the existence of the same was, under the circumstances, a condition precedent to the right to recovery. There is but one way for a county to enter into a contract for public work and that is in the manner prescribed by section 361 of the Code of 1906. This section provides that "all contracts by boards of supervisors for any public work not otherwise specially provided for, where the amount of the contract shall exceed fifty dollars, shall be made upon at least three weeks' notice by advertisement in a public newspaper of the county, etc."

It takes but a moment's recollection to understand the wisdom of the legislative department in inserting into the statute this clause as to notice. Consider, if you please, the evil and corruption that might, and doubtless would, in some instances, grow out of a failure to require public notice and free and fair competition. Most of the governmental scandal of modern times had its origin in the power of some board or individual to privately let large contracts for public improvement. Regardless of this, however, and also of the fact that the only authority possessed by the board of supervisors in, the making of such contracts is derived directly from this statute, the statute was not complied with in that the notice required therein was not given. Two notices were published concerning the letting of the contract for this particular piece of road. The first publication was in the Jackson Clarion Ledger and was for sixteen days, the second was in the Raymond Gazette, which is a weekly newspaper and was for a period of eighteen days. The first notice was in January, 1908, and referred to a meeting of the board to be held in February, 1908. At this meeting all bids received were rejected. The second publication was with reference to the meeting of March 4, 1909, and was made from February 14th to 28th. It was at the March meeting that this pretended contract was let to Albert Harris, whose rights were later assigned to Robb & Chichester.

It may be contended by appellants that this statute does not require strict construction. In other words, although it calls for twenty-one days' notice, fourteen days are sufficient to satisfy the requirement. Fortunately for us, that is not the first time this question has occupied the limelight in an appeal. It has played the role many times, and as often as it has been reviewed by this court, just so often has it been declared that boards of supervisors, being creatures of statute, endowed only with special powers and created for special purposes, can exercise only such powers as are expressly conferred by statute. We feel warranted in quoting WHITFIELD, C. J., in Jefferson County v. Grafton, 74 Miss. 435:

"Parishes, like counties in other states, are involuntary political or civil divisions of the state, designed to aid in the administration of government, as state auxiliaries or functionaries, possessing no other powers than those delegated, ranking low down in the scale of corporate existence, and well distinguishable from municipal corporations proper; which are invested with more extensive powers and endowed with more important functions and a larger measure of corporate life. As a rule, they cannot acquire estate unless for public utility, and cannot dispose of the same, after it has been acquired and devoted to public service, without legislative authority. They may, however, be objects of public or private bounty, in the absence of disabling or restraining statutes. They do not acquire for themselves as a political organization. They acquire for the benefit of the public, the people, particularly the local community, which is represented primarily by the state and secondly by them, but so far only as the state has delegated to them the power to do so. As state auxiliaries, they cannot dispose of public property, unless with formal sanction of the state, and even then in those cases, only in which the state, violating no trust and no contracts, and infringing the rights of no one, could herself act. Creatures they are, wholly dependent upon and controlled by their creator. They have no life, no attribute, no power, no rights, no obligation, but such as have been conferred or imposed on them."

It will be noted that the learned chief justice was quoting from the supreme court of Louisiana; nowever, his quotation is prefaced by the remark, "We quote to adopt, etc." The following is applicable to our boards of supervisors.

We submit that since the board failed in a very material manner to comply with the statute from which they derived their power to make the contract with Robb and Chichester, the contract is void ab initio.

"The course of judicial decision in this state holds boards of supervisors to the strictest limitations of their powers." Jefferson County v. Grafton, 74 Miss. 435.

Since this is true it cannot be held that they can make a valid contract for public work without giving the notice provided for in the statute from which they derive their power to make the contract. The requirement as to notice is the most essential part of the act in question. It insures active compensation between all persons engaged in the particular class of work contemplated, and requires that the contract be awarded to the lowest bidder. No favors can be shown. The only way to secure a contract is to put in the lowest bid. The state of Mississippi primarily had the exclusive power to enter into contracts for public work and improvement. This power was delegated by statute to the various counties through their respective boards of supervisors; these boards...