State v. Wall

• Decision Date: 23 January 1911
• Docket Number: 14762
• Citation: 98 Miss. 521,54 So. 5
• Court: Mississippi Supreme Court
• Parties: STATE v. J. N. WALL

54 So. 5

98 Miss. 521

STATE v. J. N. WALL

No. 14762

Supreme Court of Mississippi

January 23, 1911

APPEAL from circuit court of Carroll county, HON. G. A. MCLAIN Judge.

J. N Wall was indicted for neglect of duty as a road contractor. From a judgment of acquittal the state appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Hughston & McEachern, for appellant.

We submit that the record in this case will show that the board of supervisors, in letting the contract to the defendant for working the public roads of supervisor's district No. 4 complied absolutely with every essential of the road law as construed by the court in the cases of State v Edwards, 81 Miss. 399; Elmore v. State, 81 Miss. 422, and State v. Burkitt, 83 Miss. 301, up to and including its January meeting, 1908; and that there cannot possibly be any merit in any of the objections of the defendant to any proceedings of the board prior to that date.

We submit that there can be no question that the board of supervisors at its January meeting, 1908, had full jurisdiction and power to award a contract for working the public road of said district. We find that, at said meeting, the board rejected all bids for working districts 1 and 4, because the bids were in excess of the money available for said districts.

We find further that there were no bidders for working the roads for districts Nos. 3 and 5 and the board continued the awarding of the contract for working districts Nos. 1, 3, 4 and 5 until the first Tuesday in February, 1908.

We submit that the board of supervisors is a judicial as well as legislative body and its proceedings should not be tested by standards too rigid. Sullivan v. Lafayette County, 61 Miss. 271; and that the power to continue a cause is inherent in all courts. Encyclopedia of Pleading and Practice, vol. 4, 825; consequently the board of supervisors had the right to continue the awarding of these contracts until its next meeting and that it did not thereby lose any of the power and authority that it then had. A continuance is the adjournment of the cause from one day to another of the same or a subsequent term. Cyc., vol. 9, page 79.

If the board of supervisors had the authority and power at its January meeting, 1908, to let this contract and it was not divested of said power and authority by continuing the awarding until the next term; then, we submit that the notice required to be given in the newspaper as a part of that authority related back to the December meeting. For the same reason that it would not be necessary to again classify, link, adopt and file plans and specifications, it would not be necessary to again publish notice to bidders in order to meet with the requirements of law, and that part of said order of the board directing the clerk to give publication of notice to prospective bidders to file their sealed bids with the clerk on or before 12 o'clock on the first Tuesday of February was surplusage so far as it affected the jurisdiction of the board to deal with the awarding of the contracts.

We would call the attention of the court to the fact that the defendant filed his sealed bid for working the public roads of said district No. 4 of Carroll county; that the same was accepted by the board as the lowest and best bid; that the board and the defendant entered into contract for working said roads; and that there is no charge whatever of any fraud or prejudice on account of said continuance of awarding said contract, or the manner of letting said contract. In the case of Marion County v. Foxworth, 83 Miss. 677, the court held that a contract for extra work in completing the original contract be let without advertising for bidders to do said work, although the price thereof exceeded fifty dollars, if the original contract had been made after due advertisement; and we submit the reason for said holding was that the board having once had full jurisdiction and authority to award the contract, the same was not lost but retained by the board, and for the same reason the board of supervisors having attained full power and authority to let this contract, it was not lost by a continuance of the awarding of the contract.

We submit that defendant cannot be heard to complain because further publication was not made and because more bidders were not there to compete with him. Had suit been instituted by a taxpayer or other interested party such a complaint could possibly have been made, but a contractor cannot be heard to deny the contract and still hold the benefits. He cannot receive the benefits and repudiate the penalties at the same time.

We submit that the court should have sustained the motion of the defendant to exclude the contract entered into by and between the board of supervisors and the defendant, but should have permitted said contract to have gone with the other testimony to the jury.

James R. McDowell, assistant attorney-general, for appellant.

Your honors will observe that there is no charge of fraud or lack of competitive bidding by sealed bids, as provided by law and the order of the board, but that the sole reliance of the appellee is that the contract is not binding on him because of the one and only reason that it was not advertised for three weeks prior to the February meeting. Appellant's contention is that the fact that it was legally advertised for the January meeting empowers the board to receive bids at the February meeting without advertisement, and that any advertisement whatever would be surplusage, and would not add to or take from the boards the rights in the premises. The defendant is a party to this contract accepting benefits therefrom and now seeking to avoid responsibility thereunder.

Gardner & Whittington, for appellee.

It is assigned for error by the state and appellant that the court below erred in excluding the contract between Carroll county and the appellee, and in granting the peremptory instruction for the defendant and appellee; and that the court erred in ruling that said contract was void.

The record shows that the board of supervisors, at the December meeting, 1907, reclassified the public roads and determined to work the same for a period of four years, beginning the first Monday in March, 1908, and that at the December meeting, 1907, the board directed the clerk to give notice, as required by law, that the said board would, at its January meeting, 1908, receive bids for working the said public roads. The board advertised for the working of the roads in the whole county by supervisor's districts, and at said January meeting, 1908, under the notice given, a contract was made with some other party than the appellee, for working the roads in district 2, when the board rejected all bids for the working of the roads in district 4 and in the remaining districts of said county. It is to be kept in mind that the defendant is indicted for failure to work the roads in district 4 of said county. The order of the board of supervisors at the January meeting, 1908, rejecting the bids for working the roads in district 4, as shown by the record, is as follows:

"And it appearing that the bids for districts one and four were in excess of the money available for said districts, and that the said board has reserved the right to reject any and all bids made in the letting of said contracts, the board hereby rejects all the bids on said districts; and it further appearing that there were no bids for the working of the roads in districts three and five, it is therefore ordered that the awarding of the contracts for said districts, one three, four, and five, be continued until the first Tuesday in February, 1908, and that the clerk of the board be directed to give publication of notice to prospective bidders to file their sealed bids with the clerk on or before twelve o'clock of said first Tuesday of February, at which time said sealed bids will be opened by the board, and the contract awarded by said board, if any of said bids are satisfactory, and if not, the letting of said contracts will be offered at public outcry to the lowest bidder, at the courthouse in the town of Vaiden, Mississippi. The board of supervisors reserves the right to reject any and all bids." In pursuance of this order, made at the January meeting, 1908, the clerk gave notice to the bidders, which appeared in three issues of "The Conservative," a weekly newspaper at Carrollton, Mississippi, and it is admitted that said notice appeared for the first time in the issue of said paper dated January 18, 1908; and it is further admitted that there were not three weeks between the first appearance of said notice in said paper and the first Tuesday in February. There is no escaping this conclusion. The proof of publication shows it, and the counsel for the appellant frankly admit that there were not three weeks between the first publication and the day for the letting of the contract, as required by section 1607 of the Code of 1906. The case of Sullivan, v. Lafayette County, 61 Miss. 271, is not at all in point. A board of supervisors, for many purposes, is a judicial and legislative body, and the Sullivan case held that its proceedings should not be tested by standards too rigid, but this case was in a matter in which the board of supervisors were vested with certain discretions, and we understand that their proceedings are not to be tested in matters of this sort, in relation to the orders made and motions entered, by the same standards that should characterize other courts. It is contended by the state that the order made at the January, 1908, meeting continued the matter of letting the contracts, until the February meeting, 1908, and that a readvertisement was not necessary, in order to make...