Thomas v. Lee County

• Court: Mississippi Supreme Court
• Writing for the Court: MAYES, C. J.
• Citation: Thomas v. Lee County, 98 Miss. 232, 53 So. 585 (Miss. 1910)
• Decision Date: 07 November 1910
• Parties: J. MURPHY THOMAS v. LEE COUNTY

53 So. 585

98 Miss. 232

J. MURPHY THOMAS v. LEE COUNTY

Supreme Court of Mississippi

November 7, 1910

October 1910

FROM the chancery court of Lee county, HON. JOHN QUITMAN ROBBINS Chancellor.

Thomas appellant, was complainant in the court below; the members of the board of supervisors of Lee county were, personally made defendants and so were the sheriff and three road commissioners of the county. By order of the court the pleadings are set out in full. The bill of complaint was in words and figures following: J. M. Thomas, ,

v.

Board of Supervisors Lee county et al.

"To the Chancery Court of Lee County, Mississippi:

"Your complainant, a resident citizen of the city of Tupelo, and in the third board of supervisors' district of the county of Lee and state of Mississippi, would respectfully show and represent unto the court that he is a taxpayer in and for the third board of supervisors' district of said county and state and sues the following named parties, defendants: The board of supervisors of Lee county, Mississippi, comprised of B. F. Parker, president, and Will Milam, W. T. Pound, W. D McGaughey, and M. E. Conwill; also Norbin Jones, clerk of the board of supervisors; O. T. Thrapp, sheriff and tax collector; D. W. Robbins, H. B. Heard, and Emmett Whitesides the last three being commissioners appointed by the board of supervisors to construct and supervise highways in the third district of said county and state. All of the defendants above named being residents of the county of Lee and state of Mississippi.

"Your complainant would respectfully represent and show unto the court as follows:

"That on the 10th day of March, 1910, there was filed with the clerk of the board of supervisors of said county and state a petition, being numbered thirty-seven on the docket of the board of supervisors, entitled 'Petition of W. D Anderson, et al.,' signed by the said W. D. Anderson and more than four hundred others, resident citizens and qualified electors of the third board of supervisors' district of Lee county, Mississippi, as shown by a copy of said petition attached and marked 'Exhibit A.' All of the names to said petition, however, not being copied in said exhibit, said petition praying for the construction and maintenance of public roads in the third supervisors' district of said county, under and by virtue of chapter 149 of the Laws of Mississippi of 1910; same being Senate Bill No. 66.

"That on the 10th day of March, 1910, the board of supervisors made an order with reference to said petition, granting the prayer of said petition and ordering publication of notice to the qualified electors of the third supervisors' district of said county any state; the copy of said order containing said notice hereto attached and marked 'Exhibit B' to this bill.

"That on the 6th day of April, 1910, proof of publication was made and filed in accordance with the aforementioned order of the board of supervisors, being the notice to the qualified electors of the third supervisors' district, Lee county, Mississippi, was filed with the clerk of said board, as shown by Exhibit C.

"That on the 2d day of April, 1910, a petition or petitions of M. A. Reese et al. were filed with the board of supervisors as shown by Exhibits D, E, F, and G; said petition being signed by more than twenty per centum of the qualified electors of said district; said petitions asking the board not to issue bonds as contemplated for such construction and maintenance of said public roads; said petitions being copied, excepting that all the names signed thereto are not copied.

"That on the 6th day of April, 1910, the board of supervisors, as shown by a copy of said order hereto attached and marked 'Exhibit H,' recorded in minute book 10, pages 39 and 40 of the minutes of said board of supervisors of said county and state, by the terms of which it was ordered by the board of supervisors that an election should be held on the 29th day of April, 1910, that the qualified electors of said district might determine whether or not bonds of said district should be issued for the purpose of constructing and maintaining public roads. That on April 13, 1910, the commissioners of election gave a notice of the election a copy of which is filed as 'Exhibit H 1/2.'

"That on the 5th day of May, 1910, proof of publication of notice to the qualified electors of said district of the purpose of submitting said question to the qualified electors was filed with the board of supervisors, as shown by copy of same attached hereto and marked 'Exhibit I.'

"That a copy of said notice so ordered to be published and which was ordered by the board on the 6th day of April, 1910, is hereto attached and marked 'Exhibit J.'

"That on the 5th day of May, 1910, the board of supervisors of said county passed an order declaring the election held on April 29th to have been legally held and conducted and approving the returns of the commissioners of said election, and declaring the result of said election to be in favor of the issuance of the bonds of said third supervisors' district, and further ordering that D. W. Robbins, H. B. Heard, and Emmett Whitesides be appointed commissioners for said district, investing them with all the powers appertaining to said office for the term of four years; a copy of said order being hereto attached and marked 'Exhibit K,' said order recorded in Minute Book 10, pp. 61-64.

"That on June 14, 1910, the board of supervisors passed an order of publication of notice of the bond issue contemplated, as will be shown by copy of said order and proof of publication of same hereto attached and marked 'Exhibit L;' said proof being filed with the clerk of said board July 2, 1910.

"That on the 6th day of May, 1910, the board of supervisors passed an order, a copy of which is hereto attached and marked 'Exhibit H,' and which order is recorded in Minute Book 10, pp. 66-70, of the board of supervisors of said county by the terms of which it was ordered that bonds of said third supervisors' district in the sum of one hundred thousand dollars be issued for the purpose of constructing public highways in said district, and further ordering that all other matters pertaining to the manner and form of the bond and the series, and the denomination and date, and all other things pertaining thereto, were held up until a subsequent meeting of this board; said order being granted on the request and petition of H. B. Heard, D. W. Robbins, and Emmett Whitesides, commissioners, which request or petition is set out in said order of the board granted on said 6th day of May, and by the terms of which request or petition of said commissioners they asked for the sale of only fifty thousand dollars of said bonds at the present time, the balance to be sold from time to time as might be needed for the construction of said highways in said district.

"That on the 4th day of July, 1910, the commissioners before mentioned filed with the board of supervisors a petition asking that the entire issue of one hundred thousand dollars of said bonds be sold, instead of fifty thousand dollars, as before petitioned for; said petition being copied and exhibited herewith as 'Exhibit N.'

"That a copy of the petition of said commissioners for the issuance of said fifty thousand dollars bonds upon which the order of the board of supervisors was made and granted on the 6th day of May, as above set out and shown as 'Exhibit H,' is hereto attached and marked 'Exhibit O.'

"That on the 5th day of July, 1910, the board of supervisors passed an order, being a final order or decree, which is recorded in Minute Book 10, pp. 119-122, a copy of which is hereto attached and marked 'Exhibit P,' by the terms of which the form and manner of said bonds, together with their numbers, dates, dates of maturity, and all matters pertaining to the details as to the issuance of said one hundred thousand dollars of bonds, was set out, together with the details of the coupons to be attached thereto; and further ordering that the clerk of the board be instructed to sell said bonds at either public or private sale on the 5th day of July, 1910, or as soon as practical thereafter, and ordering that said bonds could not be sold for less than par value and at as low rate of interest as could be obtained, not to exceed six per centum per annum.

"That on the day of September, 1910, the board of supervisors of said county and state passed an order, a copy of which is hereto attached and marked 'Exhibit Q,' same being recorded in Minute Book, p. 216, of the minutes of the board of supervisors of said county, by the terms of which a levy of taxes was made, at the same time other levies of taxes were made, for county purposes, said levy amounting to two and one-half mills on the dollar, ad valorem tax on all property in the third supervisors' district of said county for the year 1910, for the purpose of raising funds to pay the interest coupons for said bond issue, and that the sheriff and tax collector of said county and state, O. T. Thrapp, had been furnished with a certified copy of said order and instructed to collect said tax, which he is now proceeding to do.

"Your complainant would respectfully show unto the court that said bonds have not been sold by said clerk or by said board of supervisors, but that both said clerk and said board are negotiating for and attempting to make a sale of said bonds.

"Complainant would show unto the court that the bond issue contemplated by the board of supervisors herein is void, in that there is no warrant of law by which the board of supervisors should cause said bonds to be issued, and, if there is such warrant of law, that the proceedings had and done thereunder are irregular and do not...