Tucker Printing Co. v. Board of Sur'rs of Attala County

• Decision Date: 17 December 1934
• Docket Number: 31492
• Citation: 171 Miss. 608,158 So. 336
• Parties: TUCKER PRINTING CO. v. BOARD OF SUR'RS OF ATTALA COUNTY
• Court: Mississippi Supreme Court

158 So. 336

171 Miss. 608

TUCKER PRINTING CO. v. BOARD OF SUR'RS OF ATTALA COUNTY

No. 31492

Supreme Court of Mississippi

December 17, 1934

Division B

Suggestion Of Error Overruled January 14, 1935.

APPEAL from the circuit court of Attala county HON. JOHN F. ALLEN Judge.

Petition by the Tucker Printing Company against the Board of Supervisors of Attala county for a writ of mandamus to compel the defendant to issue and sell bonds of the county in sufficient amount to pay an outstanding county warrant held by the plaintiff. From a judgment refusing the writ, the plaintiff appeals. Reversed, and judgment rendered for plaintiff.

Reversed and judgment here for appellant.

Ralph L. Landrum, of Kosciusko, for appellant.

The authorities relied upon by appellant to sustain its cause are: Section 5977, Code of 1930; Section 2348, Code of 1930, and sections following and annotations thereunder; Yalobusha County v. Carbry, 3 S. & M. 529; Arthur v. Adam, 49 Miss. 404; Board of Supervisors of Jefferson County v. Arrghi, 51 Miss. 667; Klein v. Board of Supervisors of Warren County, 51 Miss. 878; Klein v. Board of Supervisors of Smith County, 54 Miss. 254; Taylor v. Board of Supervisors of Chickasaw County, 71 Miss. 87, 12 So. 210; Herbon Bank v. Lawrence County, 69 So. 209, 109 Miss. 397; Town of Crenshaw v. Jackson, 84 So. 912, 122 Miss. 711; Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900; Harvey v. Covington County, 138 So. 403; Chapter 178, Laws of 1926, particularly section 15, thereof, being section 4761, Code of 1930.

The ruling of the trial court was exactly the opposite of what it should have been had it followed the law as set out in section 5977, Code of 1930.

The board allowed the claim. Its allowance was strictly in conformity with section 253, Code of 1930.

Mandamus is the proper remedy in a case of this nature and it is the only remedy.

Klein v. Supervisors of Warren County, 51 Miss. 878; Taylor v. Board of Supervisors of Chickasaw County, 70 Miss. 87.

Section 5977 of Mississippi Code of 1930, was enacted to give creditors in situations like appellant's relief and it is particularly for their benefit.

J. D. Guyton, of Kosciusko, for appellee.

It has since the Code of 1871, been repeatedly held that an unlawful allowance is void and a void allowance can be inquired into at any time in any proceeding.

Taylor v. Supervisors, 74 Miss. 29; Supervisors v. Klein, 51 Miss. 807.

And since the Code of 1871, we now have section 5979, Code of 1930, forbidding the issuance of a warrant when there is no money to pay same.

The order relied on merely orders the clerk to issue a warrant on the fish and game fund. Impliedly it is an allowance of the claim, but primarily it orders the issuance of a warrant. The order providing for the issuance of a warrant in payment cannot be separated from the allowance. It is all an entirety.

The cases are very numerous in which it is declared that a judgment is an entirety. By this is meant that a judgment cannot be bad in part and good in part, but must stand or fall as a whole.

33 C. J., p. 1051, Judgments, sec. 5.

The order requiring or directing the clerk to issue this warrant was made at a time when there was not enough money in the fund on which drawn to honor it. This is in such direct violation of section 5979, Code of 1930, that further comment would seem unnecessary.

Marshall County v. Callahan, 130 Miss. 271.

When it comes to, dealing with the question of the preservation of wild life, such as birds, fish and game, the boards of supervisors have only such power as the Legislature may by statute give to them.

Ex parte Fritz, 86 Miss. 210, 38 So. 722.

Under sections 4754 to 4758 of Code of 1930, the boards of supervisors are given power to appoint a game warden and to fix his compensation and that of his deputies, such compensation to be limited to the revenues produced by this law.

There is not a single line, word or syllable in the law that gives to the boards of supervisors any right or power to expend county funds in its administration-- that is, county funds provided by any means of taxation within the power of the boards of supervisors. Every single expense incurred in the administration of this law is to be paid out of the revenues provided by it.

The appellant's account is allowed under chapter 178, Laws of 1926, section 15, on a special fund created for a special purpose and provided by a special means. This account cannot legally be paid out of any other fund, such as the general fund.

15 C. J., Counties, sec. 283, p. 581, and p. 585; Morrow v. Pike County, 189 Mo. 610; State v. Pollard, 124 Tenn. 127.

If the board of supervisors in the first instance had no power to levy a tax for the support and administration of the fish and game laws, there cannot be mandamus to pay the debt created in its enforcement by levying an ad valorem tax.

Foote v. Brown, 60 Miss. 155; Whitehurst v. Smith, 155 So. 683; State ex rel. Attorney-General, v. Board of Supervisors, 133 Miss. 562, 98 So. 101.

Argued orally by Ralph L. Landrum, for appellant, and by J. D. Guyton, for appellee.

OPINION

Anderson, J.

Appellant filed its petition in the circuit court of Attala county against appellee praying for a writ of mandamus to compel appellee to issue and sell the bonds of the county in a sufficient amount to pay an outstanding county warrant for the sum of three hundred forty-two dollars and forty-three cents, held by appellant and issued against the game and fish fund of the county, being for necessary supplies furnished the county by appellant and used in the administration of the game and fish statute. The court rendered a judgment refusing to order the writ of mandamus. From that judgment, appellant prosecutes this appeal.

During the months of July and October, 1930, the sheriff's office of Attala county was supplied by appellant with certain printed license blanks and other printed matter and equipment necessary to be used in carrying out and administering the game and fish statute--chapter 178, Laws 1926; chapter 115, sections 4705-4763, inclusive, Code 1930. At the July, 1931, meeting, the board of supervisors allowed appellant's claim for three hundred forty-two dollars and forty-three cents and issued a warrant therefor. The order allowing the warrant recites that it covers supplies for the sheriff's office, "namely, hunting license and copies of the law that applies thereto. The law provides that this shall be paid out of the Game & Fish Fund authorized by Laws 1926, chapter 178, section 15 [Code 1930, section 4761]. It is therefore the order that the clerk hereof draw a warrant on the Game & Fish Fund in the amount of three hundred forty-two dollars and forty-three cents in favor of Tucker Printing House." There are other recitals in the order not material to the questions to be decided. The warrant was issued and delivered to appellant in accordance with the order.

At the December term of the board of supervisors, appellant filed its petition requesting that the board either pay the warrant or issue and sell bonds for that purpose, as provided by section 5977, Code 1930. The board declined to do either. When the warrant was issued, there was nothing in the game and fish fund in the county treasury with which to pay it, and there has not been anything since.

By chapter 123, Laws 1932, the entire game and fish chapter in the Code of 1930, except one section, was repealed, the section left standing being section 4751, dealing with federal power over "migratory bird refuges." The repealing statute made no provision for the payment of outstanding warrants issued on the game and fish fund.

Appellant contends that section 5977, Code 1930, applies and takes care of the unpaid outstanding warrants against this particular fund. That section provides that every municipality and every county which has or may hereafter have legal and undisputed warrants or other obligations, and insufficient funds in the treasury to pay them or any of them, is empowered and required to at once prepare for, and take up such warrants and other obligations, and for that purpose issue and sell serial bonds, as provided by law for the issuance of bonds for the payment of outstanding obligations, the bonds to pay such outstanding obligations shall be issued regardless of the amount thereof, and no election shall be held on the question of the issuance of the bonds, but the issuance thereof is made mandatory.

Appellee contends that the warrant was issued in violation of section 5979 of the Code, because there were no funds in the treasury with which to pay it. That section provides that no warrant shall be issued or indebtedness incurred by a county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made to pay such warrant, or unless the indebtedness is authorized by a majority of the qualified electors of the county or municipality. The other provisions of the section are not pertinent here.

Does the warrant held by appellant represent an indebtedness of the county Is it an undisputed outstanding warrant of the county? For a long time prior to the enactment of chapter 123, Laws 1932, certainly as far back as the Code of 1892 the boards of supervisors were given jurisdiction over the taking of game and fish in their respective counties. In Ex parte Fritz, 86 Miss. 210, 38 So. 722, 109 Am. St. Rep. 700, the court held that fish were incapable of absolute ownership until actually taken, except in artificial lakes or small ponds that were entirely landlocked; that in all running streams and lakes with outlets into other waters the right of the state to regulate the time, manner, and extent of the...