Russell v. Copiah County

• Decision Date: 25 March 1929
• Docket Number: 27801
• Court: Mississippi Supreme Court
• Parties: RUSSELL v. COPIAH COUNTY. [*]

121 So. 133

153 Miss. 459

RUSSELL v. COPIAH COUNTY. ^[*]

No. 27801

Supreme Court of Mississippi

March 25, 1929

Division A

1 HIGHWAYS. Road work contract held void, where minutes of board of supervisors did not show adjudication that advertisement for bids was properly made (Hemingway's Code 1927, sections 4040, 4052, 8385).

Contract for working and maintaining roads of county held void, under Code 1906, section 369 (Hemingway's Code 1927. section 4052) where minutes of board of supervisors did not show adjudication that advertisement for bids had been made in manner provided by Code 1906, sections 361, 4441 (Hemingway's Code 1927, sections 4040, 8385).

2. COUNTIES. Payments by board of supervisors for work done under void contract did not constitute ratification, enabling contractor to recover.

Payments made by board of supervisors for work done under void road work contract did not constitute ratification of contract so as to enable contractor to recover thereunder.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS, Judge.

Action by George W. Russell against Copiah County. From a judgement for defendant, plaintiff appeals. Affirmed.

Judgment affirmed.

M. S. McNeil, for appellant.

We do not think that this case is controlled by the case of Smith v. Mangum, 127 Miss. 192. The minutes of the board of supervisors in this case disclose the fact that although the contract may have been void for technical reasons there was a ratification by the board of this contract, as the same appears from the minutes of the board by the payment of the quarterly allowances to Russell. See Groton Co. v. Warren County, 80 Miss. 218; 15 C. J. 554; Leathem v. Jackson County, 122 Ark. 114, 182 S.W. 570; Boydston v. Rockwall County, 86 Tex. 234; Spence v. Clay County, 122 Ark. 157.

J. H. Garth, Jr. and Wilson & Henley, for appellee.

The advertisement of a contract according to law is a necessary prerequisite to entering into a valid contract. Such advertisement is a jurisdictional fact which the board of supervisors must affirmatively find and adjudicate in the order awarding the contract, otherwise the contract is null and void. Robb & Chister v. Postal Telegraph & Cable Co., 104 Miss. 165; Sec. 8385, Hem. Code 1927; Sec. 4040, Hem. Code 1927; Sec. 4052, Hem. Code 1927.

It is our position that the board of supervisors are without power to ratify a contract which is absolutely void. 15 C. J. 584; 7 R. C. L. 947. There is a long line of authorities in this state to the effect that the board of supervisors can only be bound by an order regularly entered and spread upon its minutes. Smith Co. v. Mangum, 127 Miss. 192, 80 So. 913; Crump v. Board of Supervisors of Colfax County, 52 Miss. 107; Board of Supervisors of Benton County v. Patrick, 54 Miss. 240; Bridges & Hill v. Board of Supervisors of Clay County, 58 Miss. 817; Dickson v. Green, 76 Miss. 794; Groton Co. v. Warren County, 80 Miss. 214; Marion County v. Foxworth, 83 Miss. 677; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742; Lamar County v. Talley & Mason, 116 Miss. 588; Sawmill Co. v. Doglas, 107 Miss. 678; Harrison Co. v. Marione, 110 Miss. 592. We, therefore, insist that even if the board of supervisors of the county were permitted to ratify a void contract that it has not been done in a proper manner in this instance. See, also, Amite Co. v. Mills, 138 Miss. 222, 102, So. 465.

M. S. McNeil, in reply for appellant.

If we are incorrect in the idea that there was a complete ratification on the part of the board, as shown from its various orders and especially orders paying the contractor each quarter, then we insist that the appellant should recover on the quantum meruit basis The cases of Amite County v. Mills, 138 Miss. 22, and Smith County v. Mangum, 127 Miss. 192, should be overruled, and the case of Crump v. Colfax County, 52 Miss. 107, should be declared to be the law in this state. The appellant in this case worked and maintained the roads for a period of two years; the county accepted the benefits under the contract, and the public continuously used the roads, and, as expressed by Judge ANDERSON in the dissenting opinion in Amite Co. v. Mills, supra: "I say that good morals and even-handed justice demand that appellant should pay appellee the reasonable value of the benefits received by it." We insist that this is a just debt and should be paid.

Argued orally by W. S. Henley, for appellee.

OPINION

COOK, J.

The appellant, George W. Russell, a road contractor, filed this suit against Copiah county, seeking to recover a balance of one thousand eight hundred thirty-four dollars and eighty-seven cents alleged to be due him under a two-year contract for working and maintaining the dirt roads of district No. 2 of that county; the amount sued for being the payment alleged to be due under the contract for the last quarter of the second year of the period covered by the contract. The defendant filed a plea of the general issue, and gave notice thereunder that it would offer proof to show that the contract between the plaintiff and county was void, and that the plaintiff had breached the contract by transferring and assigning it to a nephew of the member of the board of supervisors from said district No. 2 of said county, in violation of the terms of the contract and the laws of the state, and also filed a special plea in recoupment, alleging that previous to that time the plaintiff had been paid the sum of seven thousand five hundred dollars in excess of what he had earned under the terms of the purported contract.

At the conclusion of the evidence offered by the plaintiff, the court below sustained a motion to exclude the evidence and direct a verdict for the defendant, and from the verdict and judgment entered in pursuance of the peremptory instruction for the defendant, this appeal was prosecuted.

The proof fails to show that the board of supervisors advertised, according to law, for proposals or bids to work and maintain the roads of the district, but, on the 6th day of November, 1925, there was entered on the minutes of the board of supervisors the following order:

"Whereas, bids were opened on this the 6th day of November, 1925, for the working of the dirt roads of district No. 2 of Copiah county, and it appearing that G. W. Russell was the lowest and best bidder for working said roads, who bid as follows, to-wit: 'I respectfully submit my bid for maintaining dirt roads in Dist. No. 2 of Copiah county for a period of two years, according to the plans and specifications for sixty dollars ($60) per mile per year.'

"Therefore, it is hereby ordered that the said G. W. Russell be awarded the contract for working the dirt roads of district No. 2 according to the plans and specifications on file, upon his entering into bond in the sum of seven thousand and fifty dollars and entering into a contract for the faithful performance of said award."

After this order was entered by the board of supervisors, a written contract providing, in detail, for working and maintaining the dirt roads of the said district, was prepared and signed by the appellant and the president of the board of supervisors, and a bond for the faithful performance of the contract was executed by the appellant and approved by the president of the board; but this contract was not spread upon the minutes of the board, nor was the bond approved by the board.

There was much testimony offered, bearing upon the question of whether or not the contract was transferred or assigned, and whether the roads were worked and maintained in accordance with the terms of the contract and the plans and specifications, which were a part thereof; but under our view of this case this testimony is not material to a decision of the question involved. The record fails to show that, in awarding the contract to the appellant, the board of supervisors adjudicated, by any order on its minutes, that advertisement for bids had been made in the manner provided by law--in fact, it is admitted that the minutes of the board of supervisors do not show this jurisdictional fact.

Section 4441, Code 1906 (section 8385, Hemingway's 1927 Code), provides that the board of supervisors "may determine to work the public roads, or some part thereof, by contract, and may thereafter so work the same, letting contracts in such cases as other contracts are let by the board of supervisors," provided that any contract to so work and keep in repair the public roads shall not be made...