Smith County v. Mangum

• Court: Mississippi Supreme Court
• Writing for the Court: SYKES, J.
• Citation: Smith County v. Mangum, 127 Miss. 192, 89 So. 913 (Miss. 1921)
• Decision Date: 28 November 1921
• Docket Number: 22088
• Parties: SMITH COUNTY v. MANGUM

89 So. 913

127 Miss. 192

SMITH COUNTY v. MANGUM

No. 22088

Supreme Court of Mississippi

November 28, 1921

1 COUNTIES. Entry of order on minutes of board of supervisors necessary to validity of contract for bridge construction.

Where a board of supervisors, proceeding under section 361, Code of 1906 (section 3734, Hemingway's Code) through one of its members, awards the contract for the building of a bridge and fails to enter an order upon its minutes to this effect there is no express contract entered into for this work, and the county is not liable therefor.

2 COUNTIES. Order on minutes necessary for contract for public works.

Under this section the only way a board of supervisors can make a contract for public works is by an order spread upon its minutes, and in the absence of an order there is no express contract.

3 COUNTIES. County cannot be bound by implied contract under statute.

Under this section of the Code only an express contract is contemplated, and the county cannot, as to the subject-matter covered by it, be bound by an implied contract.

HON. W. H. HUGHES, Judge.

APPEAL from circuit court of Smith county, HON. W. H. HUGHES, Judge.

Action by J. J. Mangum against Smith County. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed.

Nobles & Lane, for appellant.

On the trial of this cause appellee insisted that he was entitled to recover against the county on either of two grounds: First, that he had a contract with the county for the building of the bridge in question, and second, that if it be held that he had no contract with the county for the building of the bridge, then he was entitled to recover upon a quantum meruit, because the bridge was necessary and was worth the amount asked and was being used by the public. It was held by the trial judge that appellee had no contract with the county for the building of the bridges, and so could not recover on the first proposition. However, the court held that appellee could recover upon a quantum meruit, because the bridge was being used by the public. We shall discuss these two propositions in the order stated above.

We contend that the appellee did not have a contract with Smith county for the building of the bridge in question. We desire to call the court's attention at this point to section 361, Code of 1906, section 3734, Hemingway's Code, which provides how contracts shall be let. Also section 369, Code of 1906, section 3742 of Hemingway's Code. These sections are the authority of the board of supervisors for the making of contracts with respect to the building of bridges, etc. The board of supervisors are agents of the county, with special and limited powers. They have no authority or power to make a contract except such authority and power as are delegated to them by statute. Any attempted contract that does not fall within the limitation prescribed by law for the making of contracts by the board of supervisors, is invalid and void. By an unbroken line of authorities the court of this state has held that before a contract can be made with the county all the necessary prerequisite steps must be taken and the statutes with reference thereto complied with strictly. This point was fully and ably covered in the case of Groton Bridge & Mfg. Co. v. Board of Supervisors, Warren County, 80 Miss. 214, 31 So. 711. In that case the court quoted with approval the case of Woolcott v. Lawrence County, 26 Mo. 277.

In the case of Lamar County v. Tally & Mayson, 116 Miss. 588, 77 So. 299, the court held that a county could only be bound by a contract evidenced by an order entered upon its minutes. Again in the case of Gilchrist-Fordney Company v. Keyes, reported in 11 Miss. 742, 74 So. 619, where members of the board of supervisors executed a deed to certain 16th section timber, and the deed was held by this court to be a nullity, because there was no precedent order entered upon the minutes of the board authorizing the sale.

This holding was very forcibly stated in the case of Bridges & Hill v. Board of Supervisors, 58 Miss. 817. Crump v. Colfax County, 52 Miss. 107; Benton County v. Patrick, 54 Miss. 240; Dixon v. Green County, 76 Miss. 794, 25 So. 665; Marion County v. Foxworth, 83 Miss. 677, 36 So. 36; Leflore County v. Cannon, 81 Miss 334, 33 So. 81; Marion County v. Woulard, 27 So. 619; Northern Drainage Dist. v. Bolivar County, 71 So. 380.

We submit that appellee is not entitled to recover on a quantum meruit. As above stated the legislative scheme provides for clear and distinct contracts with a county with respect to all of its public buildings, etc. In carrying out this scheme, the statute provides for the keeping of minutes for the entries of all orders of the board; for the allowances of all accounts, and in authorizing the payment of any claim that the section and page of the statute must be stated in the order. The purpose of this statute is manifest, it being to prevent the payment of any money that has not been authorized by law, or some contract made in compliance with some particular provision of the statute. This, of course, cannot be done in the absence of a definite and clear contract with the board in any case where the payment for any public work is the subject-matter. The supreme court of our state has held that this principle is not applicable to a recovery against a county. Groton Bridge & Mfg. Co. v. Board of Supervisors, Warren County, 80 Miss. 214, 31 So. 711, supra.

Appellee contends that because the public used the bridge in the county upon its completion that this constitutes an acceptance by the county. We do not so think. The bridge built without a contract was the property of the appellee and it took no affirmative act on the part of appellant to not accept it. The public's use of the bridge was not at the instance of appellant and could not by any sort of reasoning be construed as an acceptance of the bridge by the county. If the contention of appellee be correct, then the whole scheme of bridge building which our courts have held must be strictly complied with could be eliminated in the building of county bridges. John Doe could find a bridge that needed to be replaced with a new one, proceed to build the bridge, which of course the public would use when completed, and recover the price thereof from the county. He would only be required to show that the bridge was necessary and that the sum demanded was reasonable and that the public was using the bridge. This of course, cannot be the law. It is in conflict with the unbroken line of decisions of this and other states with respect to the making of public contracts by the county and the expenditure of the county's money. Such a holding would set aside every safeguard that has been thrown around the law of contracts and the expenditure of public money by the county for the last half a century, and would subject the building of public buildings and the expenditure of public moneys by the county to every kind of fraudulent and dishonest motives. It would open wide the way for the schemers and conspirators to be awarded public contracts by dishonest and unfaithful public servants.

We do not believe that the appellant in this case should be required to pay for a bridge which they did not only fail to contract for and refuse to award, but which they specifically and clearly objected to building and rejected the bid of appellee therefor.

We submit that this case ought to be reversed and judgment entered here for appellant.

R. C. Russell, for appellee.

This record presents two questions for this court for consideration, viz: First, did appellee have such a contract with the board for the building of the bridge as to bind the county? Secondly, if appellee had no valid contract, then was the course of dealing between the board and himself such as to bind the county on the doctrine of quantum meruit?

On the first of these two propositions appellant contends that he did have a valid contract with the county for the construction of the bridge, that there are sufficient orders and other written evidences of the contract appearing upon the minutes of the board and filed with its clerk to establish a contract when the same has been fully executed according to its terms and provision and accepted by the contracting party.

Appellant contends that appellee has no contract with the county, and that the county is not legally liable to the appellee in question; because appellant says that there is not a contract appearing upon the minutes of the board nor any order awarding appellee the contract. They therefore base their whole defense to this suit on the sole proposition that the board failed at its December meeting or at any other time to spread an order upon the minutes of the board awarding appellee the contract and in support of their contention on this point they cite section 361 of the Code of 1906, and numerous decisions of our own state holding that all contracts with the county must appear upon the minutes of the board, etc., but it is our view that this record discloses the fact that each and all of the decisions collated and cited by appellant were dealing with and based upon an entirely different statement of facts to those of this case. We take it that from an examination of the case cited by appellant that there was nothing appearing upon the minutes of the board indicating any purpose at all on the part of the board to make or enter into a contract, but that is not true in the instant case as the minutes of the board show that each of the ten prerequisites that we have above enumerated were complied with by the board.

There is not an intimation in section 361 of the Code of 1906 requiring the board to spread an order upon its...