State ex rel. Bank of Commerce & Trust Co. v. Forbes

• Decision Date: 03 May 1937
• Docket Number: 32640
• Parties: STATE ex rel. BANK OF COMMERCE & TRUST CO. v. FORBES et al
• Court: Mississippi Supreme Court

174 So. 67

179 Miss. 1

STATE ex rel. BANK OF COMMERCE & TRUST CO. v. FORBES et al

No. 32640

Supreme Court of Mississippi

May 3, 1937

(In Banc.)

1 COUNTIES.

Assignee of holder of loan warrants issued by county in series maturing annually under authority of statute which gave power to make special tax levy to pay warrants, but which did not provide for sinking fund, held not entitled to recover from supervisors who became members of county board in year following year when holder's warrants became due for attorneys' fees incurred in action to recover amount of warrants because of board's failure to levy tax, since statute required only annual tax levy, and board became derelict before such supervisors became members (Loc. & Priv. Laws 1928, chap. 768).

2 OFFICERS.

Public officer who is a member of a corporate body upon which a duty rests cannot be held liable for neglect of such duty, since refusal to exercise body's power is body's refusal and not that of individuals composing body, and members' official action is merged into body's official action as an entity.

3 COUNTIES.

Assignee of holder of loan warrants issued by county under authority of special statute held not entitled to recover from members of board of supervisors for attorneys' fees incurred in action to recover amount of warrants because of board's failure to levy tax as authorized by statute, where statute did not impose any duty upon board members as individuals or any individual liability for board's defaults, since boards of supervisors are not mere "ministerial" agents of state, and board's failure to levy tax was a failure in its corporate capacity (Loc. & Priv. Laws 1928 chap. 768; Code 1930, sec. 5993).

ETHRIDGE J., dissenting.

HON. HARVEY MCGEHEE, Judge.

APPEAL from the circuit court of Marion county HON. HARVEY MCGEHEE, Judge.

Action by the State, on the relation of the Bank of Commerce & Trust Company, against J. E. Forbes and others, members of the Board of Supervisors of Marion County. From a judgment of dismissal, plaintiff appeals. Affirmed.

Affirmed.

Leftwich & Tubb, of Aberdeen, for appellant.

The bonds or negotiable notes or warrants out of which this cause of action grows were issued on June 15, 1928, under and by virtue of authority of House Bill No. 1064.

In making provision for the issuance of bonds for certain purposes, our Legislature provided, in section 247 of the Code of 1930, as follows: "The board shall levy annually a special tax, to be used exclusively in paying the interest on such bonds, and in providing a sinking fund for their redemption."

And it is provided by chapter 152 of the Code of 1930, being that chapter dealing with public debts, in section 5984 of the Code of 1930, under the head of Issuance of Bonds -- Conditions Governing Same -- Time Within Which Bonds May Be Issued, as follows, to-wit: "Such bonds when issued shall constitute a lien upon all the taxable property in such county or consolidated or rural separate school district, or separate road district, as the case may be, and the board of supervisors shall annually levy a special tax on all such property sufficient to pay the principal and interest on such bonds as they fall due."

Section 5984, page 2474, Code of 1930; sections 5990, 5991, 5993, Code of 1930.

Judicial power is authority vested in some court, officer or person, to hear and determine when the rights of persons or property, or the propriety of doing an act are the subject-matter of adjudication. Official action, the result of judgment or discretion is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from designated facts, is a ministerial act.

Flournoy v. City of Jefferson, 17 Ind. 169; Tenn. & Coosa R. Co. v. Moore, 37 Ala. 371; Morton v. Comp. Gen., 4 S.C. 430; Comr. v. Smith, 5 Tex. 471; Lige & Fire Ins. Co. v. Wilson, 8 Pet. 291; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Poyner v. Gilmore, 158 So. 922, 171 Miss. 859; 79 Am. Dec., note, page 472; 46 C. J. 1036, sec. 303.

When, therefore, the defendants, as supervisors of Marion County, issued the bonds or notes of Marion county under the act cited and under the general statutes applying thereto, they were enjoined by statute with duties that were mandatory, that is, they were to make a special levy annually for the purpose of paying the interest on the bonds as the same became due and payable for retiring the principal as it matured; and at a meeting held thirty days before the interest or principal became due and payable they were to make an allowance for the principal and interest to be remitted to the paying agent and to reach that paying agent five days before the date of maturity so that the sums due could be promptly paid upon presentation of the bonds and coupons by the various holders thereof.

The Supreme Court of the United States held in a similar statute and under similar facts that the officer was liable for damages.

Amy v. Suprs., 11 Wall (U. S.) 136, 20 L.Ed. 101; Farr v. Thompson, 11 Wall (U. S.) 139, 28 L.Ed. 102; Walton v. Colmer, 169 Miss. 182, 147 So. 331; First National Bank v. Filer, 145 So. 204, 87 A. L. R. 267; Brown v. Reeves, 129 Miss. 755, 92 So. 825.

Public officers should be held to a faithful performance of their duties and made to answer to damages to all persons who may have been injured through their misfeasance, malfeasance or nonfeasance.

Lick v. Madden, 36 Cal. 208, 95 Am. Dec. 175.

Public officers, as a rule, are answerable to private persons for injuries resulting from neglect of ministerial duties.

22 R. C. L. 484, sec. 162; 40 A. L. R. 1358; 53 A. L. R. 381; Clark v. Kelly, 101 W.Va. 650, 133 S.E. 365, 40 A. L. R. 799; 46 C. J., page 1036, sections 303, 304, and 305.

The official bond of an officer is a contract which the law requires him to execute and by which he and his sureties agree that he will faithfully discharge all the duties of his office and which is breached by the failure of the officer to discharge any of his official duties.

State v. Smith, 156 Miss. 288, 125 So. 825; Poyner v. Gilmore, 158 So. 922, 171 Miss. 859; Pierce v. Chapman, 165 Miss. 749, 143 So. 845; State v. Hundley, 125 Miss. 355, 87 So. 890; Lewis v. State, 65 Miss. 468.

One of the first things an officer should learn on assuming the duties of his office is the law bearing on his office and its duties. He does not become the law of the land by assuming office and can do no act unless the law authorizes him to do so which will affect any other person's rights, property or liberty.

D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Sections 1365 and 1395, Code of 1930.

The duties which the boards failed to perform were simply ministerial. Under the statutes in force and under the very orders which appear on the minutes of the boards they were charged with the mandatory duty of annually making a levy for the purpose of creating a sinking fund in order that the interest on the bonds might be paid as it matured and in order that the bonds themselves might be retired when they became due and payable. They had no choice or discretion in the matter. They were compelled to make that levy.

The appellees failed and neglected to perform their duty and they have rendered themselves liable individually on their bonds to the appellant for the expense and damages incurred by the appellant. The damages here sought are actual damages.

The declaration is good on demurrer as to the appellees Hammond, Beacham and Hutson, although they did not serve on the board of supervisors prior to the first Monday in January, 1932. This fact would not relieve them of the duty of issuing a warrant, making a proper allowance and remitting the amount due to the proper paying agent.

The appellant in the case at bar points to section 5993, Code of 1930, and says "You are liable under this statute." That statute creates the liability and takes this case out of that line of decisions which have held that there can be no recovery unless there is an express statute creating liability. We say that this is the express statute which creates liability.

We insist that section 5993 means now just what it says, that is, that an officer failing to comply with the foregoing provisions, and they are those provisions which go immediately before section 5993, shall be liable on his official bond for any and all expenses incident to the collection of the same incurred by the holder of any bond or coupon for the failure to pay the same promptly at the place of payment at maturity. The revision and consolidation of the statutes and laws and their re-enactment, as the Code of 1930 was by one act of the Legislature, uno flatu, and that Code became the law of the state. The Code then superseded the Laws of 1920 and all other laws were repealed, and thus chapter 152 of the Code of 1930 became the law. That being true, the courts may not now look back to the Laws of 1920 or any other laws enacted prior to the Code of 1930 to determine what is meant by the term "foregoing provisions." What is now meant appears in the Code, chapter 1, Code of 1930.

59 C. J. 891; 25 R. C. L. 1009, sec. 249; Hunt v. Wright, 70 Miss. 298, 11 So. 608; Ex parte Wren, 63 Miss. 512.

Rawls & Hathorn, of Columbia, for appellee.

It is our contention that under the facts as alleged in the declaration there is no individual and independent liability of the members of the board, and this is true regardless of whether or not the acts complained of are ministerial or judicial or quasi judicial, as is...