Robinson v. Board of Supervisorsp, Itawamba County

• Decision Date: 02 June 1913
• Docket Number: 16,597
• Court: Mississippi Supreme Court
• Parties: FLOYD ROBINSON, et al. v. BOARD OF SUPERVISORS, ITAWAMBA COUNTY

62 So. 3

105 Miss. 90

FLOYD ROBINSON, et al. v. BOARD OF SUPERVISORS, ITAWAMBA COUNTY

No. 16,597

Supreme Court of Mississippi

June 2, 1913

APPEAL from the circuit court of Itawamba county, HON. CLAUD CLAYTON, Judge.

Mandamus by Floyd Robinson, and others, against the Board of Supervisors of Ittawamba county. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court

Affirmed.

Wiley H. Clifton, for appellant.

The contention by appellee will be that, in all that the board did, only matters of discretion were involved, and that the discretion of the board cannot be controlled by mandamus. That if the board committed the error in refusing to amend its judgment the way to correct such error was by appeal and not mandamus.

That in the exercise of its full jurisdiction over roads the law vests in the board a discretion as to when, in such proceedings, the bonds should be issued and sold. That in this case the board had acted, and in acting has only decided that now was not a proper time to issue and sell the bonds of this road district. And by this decision they only exercised the discretion which the law vests in them and we are here asking the court to control that discretion.

We submit that appellees' contention on the merits that these bonds are void is a complete answer to this technical objection that we have resorted to the wrong remedy.

For if the bonds are not void then clearly we are entitled to the writ; unless the board has the right to indefinitely postpone the issuance and sale of the bonds. If the bonds are void then, we are entitled to the writ to compel the board to proceed with the issuance of a good series of bonds and their sale, for the same reason.

So the question finally reverts back to whether the board can in its discretion postpone indefinitely the issuance and sale of these bonds. We will be cited to the case of Weston v Hancock Co., 98 Miss. 800; 54 So. 307 as an authority for this contention. The facts in Weston's case material to this question are, that on a bill filed to enjoin the board from the sale of bonds under chapter 150, Acts 1910 the validity of the bonds were attacked on the ground that the board instead of issuing the bonds at the August meeting it being the meeting to which notice of intention to issue the bonds were returnable, they issued the bonds at the September meeting next thereafter. So it will be seen it was a delay of only one month. In passing on this state of facts the court says, "If it be asked how long after this publication may the board continue to leave open the issuance of the bonds, and at what time this right expires, our answer is, the board may thereafter act at discretion. Powers of government must reside somewhere, and those in power must be trusted to carry out the powers entrusted to them in good faith and for the best interest of those whom they represent." This, the fourth district was brought under operation of chapter 149, Acts 1910 at the June meeting 1911, of the board; at December term, 1911, these bonds were issued, and it was the February term, 1913, when the board refused to offer these bonds for sale, or to take any steps towards issuing other bonds.

Six months from the return term or earliest time in which they could have been issued, until they were actually issued, and fourteen months after issuance when the board refuses to advertise and sell the bonds. And if they are void twenty months from the return term when the board refuses to issue other bonds, or "make any order whatever in the case." I hardly think that it could be contended that the board acted in good faith with us; but before I pass to this matter of good faith, I want to call the court's attention to another point decided in this Weston case in the next sentence following the excerpt copied. 34 So. 310.

"So far as the taxpayers are concerned when he fails to protest, the bonds then have a potential existence beyond revocation so far as they are concerned."

That is the judgment of the board granting the petition which brings the district under the provision of chapter 149, Acts 1910, is final and conclusive on the taxpayer; provided the initial petition contains the jurisdictional facts; the notice is properly given, and the counter-petition filed against the issuance of the bonds does not contain twenty per cent of the qualified voters, all which is shown in this case. It is not only conclusive on the taxpayer, but it is a judgment which binds the board at its successive meetings and succeeding boards, and that cannot be attacked collaterally.

And yet if the board of supervisors be clothed with a discretion to indefinitely postpone the issuance and sale of bonds that have potential existence, that have been created by a judgment of the board that is even binding on it, then such discretion is greater than the powers and jurisdiction of the board. I don't think this dictum of Judge MAYES can be distorted into adding any such powers to a board of supervisors, which is a court of limited and special jurisdiction. This court decided in the Bookout case that where all subsequent proceedings to the initial petition were void the board had the power and discretion on a petition signed by a majority of the voters of the district to dismiss the initial petition without referring it to a vote of the district. But in this case the district has been properly and legally made a good road district, which gives the bonds a potential existence, whether issued or not; and neither the taxpayer nor the board and taxpayer can revoke or set aside the proceedings when they have reached this point.

There is no discretion involved at this point, only plain duty imposed on the board by statute, and having refused to perform this duty can be made to do so by mandamus. Monroe Co. v. State, 63 Miss. 135; Harris v. State, 72 Miss. 963 (18 So. 387); Arthur v. Adams, 49 Miss. 404. But it will be said that the board acted on the proposition before it, and not satisfied with that action we are now seeking to compel the board by mandamus to decide our way.

If the bonds were valid, or if the proceedings can be amended and the bonds made valid, then the mandamus will compel the board to sell the bonds. If the present bond issue be void, still the bonds have a potential existence and the board the power to issue a new series; in which case the mandamus will compel the board to issue and sell the bonds.

The duty in the first case imposed by the statute on the board is still the bonds; in the second case to issue and sell the bonds. Both ministerial duties involving no discretion; and required to be performed by the statute. This same question was thrashed out in the Bookout case; and the court took no notice of the appeal or certiorari, but held that mandamus was the proper remedy.

But even if there was a discretion in the board to postpone the issuance and sale of such bonds for the purpose of conserving the interest of the public; the board could not interpose such a defense when it was shown that it was a mere subterfuge and not done in good faith.

There is nothing in the record to show that the board at any time believed that it would be against the interest of this district to incur this bonded indebtedness for purposes of maintaining good roads in the district....