Town of Gloster v. Harrel

• Decision Date: 09 April 1900
• Citation: 77 Miss. 793,27 So. 609
• Court: Mississippi Supreme Court
• Parties: TOWN OF GLOSTER v. EDWIN R. HARREL ET AL

27 So. 609

77 Miss. 793

TOWN OF GLOSTER v. EDWIN R. HARREL ET AL

Supreme Court of Mississippi

April 9, 1900

March, 1900

Reversed and remanded.

Theodore Mcknight, for appellant, on second appeal.

The receipt warrants provided for by code 1892, § 3027, should cut no figure in the case. Surely these warrants were never intended to enable a town treasurer to pocket public funds and escape liability because the officer received the money without them. A peremptory instruction ought to have been given in appellants' favor.

Cassedy & Cassedy, for appellees, on second appeal.

The treasurer was prohibited, by code 1892, § 3027, from receiving money from any source until the same had been reported to the clerk and audited and a receipt warrant issued therefor. These warrants are therefore necessarily the exclusive evidence to charge the treasurer. The tax collector, if sued (and he should have been, rather than appellees, in this case) could not escape liability by showing payments to the treasurer without showing the receipt warrants.

There was no lawful approved of the bond sued upon. Code 1892, § 2992 requires the approval to be by ordinance, and it cannot be done by a mere order or resolution. Nothing is an ordinance that does not conform to code 1892, §§ 3006, 3007 and 3008.

OPINION

WHITFIELD, C. J., (on the second appeal).

It was fatal error to hold that the receipt warrant provided for by § 3027, code of 1892, was the exclusive evidence whereby to charge the appellees. It was part of the fiscal machinery devised to be followed in keeping proper record of the town's moneys, intended for the convenience and protection of the municipality. But it is not the exclusive evidence of the reception of money by the treasurer; the statute does not so provide. Here there was sufficient evidence that both the original and duplicate informal receipt given by the treasurer, had been lost, and also of their contents to charge the appellees. It is not for the treasurer, or his sureties, the money of the town being traced to his hands by other competent evidence, to find shelter under the absence of a mere receipt warrant, or the fact that his bond was approved by resolution, instead of ordinance. Neither he nor they can be heard to make such defense.

Reversed and remanded.