Saxon v. Harvey, 44035

• Citation: 190 So.2d 901
• Decision Date: 03 October 1966
• Docket Number: No. 44035,44035
• Parties: Kent SAXON et al., Complainants-Appellants, v. Hobson HARVEY, et al., Defendants-Appellees.
• Court: United States State Supreme Court of Mississippi

Page 901

190 So.2d 901

Kent SAXON et al., Complainants-Appellants, v. Hobson HARVEY, et al., Defendants-Appellees.

No. 44035.

Supreme Court of Mississippi.

Oct. 3, 1966.

H. C. (Mike) Watkins, Meridian, for appellants.

William A. Huff, O. G. Idom, Forest, for appellees.

PATTERSON, Justice:

This is a taxpayer's suit under the authority of Mississippi Code Annotated section 2944 (1956). It seeks an accounting, judgment and injunction against Hobson Harvey, President of the Board of Supervisors of Scott County, because of the alleged unlawful use of county machinery, materials and labor for the benefit of private citizens on unauthorized projects. After trial, a decree was entered denying all relief sought by the complainants. The complainants appeal here. We affirm in part and reverse and remand in part.

The nature of the suit, numerous allegations of unauthorized practices on various unauthorized projects in two counties by the defendant Hobson Harvey, the supervisor of Beat 2 of Scott County, Mississippi, hereinafter referred to as Harvey in his official capacity, necessitates a consideration of each of these charges. They are:

In Newton County:

1. That Harvey did a large amount of grading and filling work on the private lands of Lester Vance with the employees and machinery of Scott County, and that the reasonable cost of such work was $750;

2. That Harvey with the employees and equipment of his district built a gravel road on the private property of Robert G. Crosby, and that he furnished sand and gravel to Crosby in the construction of three chicken houses, the reasonable cost of these two projects being $3,000;

3. That Harvey graveled and graded the premises around the barn owned by Paul Tadlock with the employees and materials of Scott County, the cost of such operation being $310;

4. That Harvey graded, graveled and installed a culvert on the private roadway of Otho Easom at a reasonable cost of $300.

In Scott County:

1. That Harvey graveled and maintained a road within the private pasture of Earl Davis, the maintenance of such road during the past three years reasonably costing the county the sum of $2,000;

2. That Harvey used county machinery, materials and employees to improve the store lot belonging to Roy Aultman, including the moving of a house therefrom, at a reasonable cost to the county of $700;

3. That Harvey constructed a fence around the private pasture of West Waltman at a cost of $75;

4. That Harvey, with the employees and equipment of the county, removed stumps, installed a culvert pipe, and built a road in the pasture of J. T. McMillan, the reasonable cost to the county of these activities being $225;

5. That Harvey constructed a private road for Billy Guy Singleton which included clearing, grading, graveling and the installing of culverts by the use of employees, machinery and materials owned by the district, and that the reasonable cost of this road was $1,325.25;

6. That Harvey built a road over the private lands of Neal Smith and that the reasonable cost was $350;

7. That Harvey sold a lot to Junior Graham on November 13, 1964, and thereafter hauled twenty loads of sand and gravel for use on such private lot, the reasonable cost for these services being $200;

8. That Harvey used the employees and equipment of the county on his own farm in repairing fences, barns, and installing culvert pipe in his pasture, as well as using county employees in vaccinating and caring for his livestock; that the reasonable cost thereof was $150;

9. That Harvey installed one length of 48-inch galvanized culvert on the lands of Gene Houston; that the reasonable cost for this material and labor was $375;

10. That Harvey in July 1964 furnished county equipment and materials for the construction of a road on United States Government land in the Bienville National Forest in Scott County; that the contract for the construction of this road belonged to Eure Brothers Construction Company, and that the actions of Harvey in this regard amounted to a donation to such construction company, the reasonable cost thereof being $550;

11. That Harvey, without authority at law, constructed a road from U.S. Highway 80 to the Central By-Products Ltd., a private corporation, at a reasonable cost of $5,000;

12. That Harvey constructed a private drive and private pond for Irwin Clark by the alteration of a former road, no allegation as to cost being made; and

Finally, that Harvey has babitually, continuously, and unlawfully constructed private driveways and roads and will continue to do so unless emjoined therefrom.

At the conclusion of the trial the chancellor held that 'the evidence submitted wholly and completely fails to meet the burden of proof required to show that the roads which are the subject of this suit are not public roads,' and in accordance therewith, the bill of complaint was dismissed at complainants' cost.

The appellants have filed twenty assignments of error. The substance of these assignments is as follows:

1. The court erred in failing to find that the use of public funds through the use of county equipment, machinery, supplies and services of county personnel for the benefit of private individuals both within and without Scott County constitutes appropriations of public funds to objects not authorized by law and directing an accounting thereasto, and in failing to enjoin such practices as they were habitually and continuously done.

2. The court erred in not finding liability on the part of Harvey as member of the board of supervisors, inasmuch as he did not vote against these appropriations.

3. The court erred in not allowing the complainants to amend their bill of complaint so as to change the allegations of unauthorized work and material on the land of Junior Graham to that of Sidney A. Graham so that the bill of complaint would conform to the evidence offered.

4. The court erred in not permitting cross-examination of the defendant as to prior declarations made by the defendant.

The appellees contend, though the point was not raised in the court below, that the appellants have no standing to maintain this taxpayer's suit against a public official. They rely primarily upon Mississippi Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 574 (1939) wherein the following were determined to be prerequisites to the bringing of a taxpayer's suit:

1. The suit must attack an appropriation to an object not authorized by law.

2. The suit must be brought on behalf of the public and the public must be invited to join therein.

3. The public official whose duty it is to bring suit must be presented with facts sufficient to convince the legal mind that the suit should be brought.

The appellees maintain that this suit is not an attack on an appropriation to an object not authorized by law, but rather that it is an attack upon an authorized appropriation, but which was made in an irregular or unauthorized manner, and as such, a taxpayer's suit will not lie. We are of the opinion that this point is not well taken, since in Coleman v. Shipp, 223 Miss. 516, 534, 78 So.2d 778, 786 (1955) we held:

(B)ut we are of the opinion that an appropriation of public funds for the construction or maintenance of private roads or driveways is to an object not authorized by law.

We hold that the allegations as to the use of county employees, materials and equipment on private projects for private benefit satisfy prerequisite number 1 of Hester, supra.

The second requirement, that the public be inivited to join the suit, was met inasmuch as the public was so invited.

Evidence was not introduced on the third prerequisite to show what facts were brought to the attention of the county attorney, the district attorney, the attorney general, and the state auditor. Nevertheless, the bill of complaint does allege that the matters complained of were called to their attention and that they were advised by the district attorney and the attorney general to file a 'taxpayer's' suit. Assuming the facts alleged in the bill of complaint to be consistent with those related to the officials, we are of the opinion that there were sufficient facts upon which to base this suit, as the charges are not frivolous, but are directed to specific unauthorized activities for the benefit of private individuals. We hold, therefore, that the appellants, as taxpayers, have legal standing to prosecute this suit.

The first assignment of error by the appellants is that the chancellor erred in failing to find that the expenditure of public funds through the use of county equipment, machinery and supplies, as well as the services of county personnel, was for the benefit of private individuals both within and without Scott County, and that these practices constituted appropriation of public funds to objects not authorized by law. This assignment of error is well taken, as the holding of the lower court, that 'the complainants failed to meet the burden of proof required to prove that the public equipment owned by District 2 of Scott County, Mississippi, the county employees paid by Scott County, Mississippi, materials and supplies owned by Scott County, Mississippi, have been used to construct, repair, improve and maintain private roads as complained of in the bill of complaint,' overlooks the admissions both in the answer and testimony of Harvey as well as the testimony of other witnesses, substantially to the point that the equipment and machinery were used on the private property of Lester Vance, Robert G. Crosby, and Otho Easom in Newton County, though the testimony does not sustain the charge as to the Tadlock property. Mississippi Constitution § 170 (1890) provides, among other things, the following:

Each county shall be divided into five districts, a resident freeholder of each district shall be selected, in the manner prescribed by law, and the five so chosen shall constitute the board of supervisors of the...