Weissinger v. Davis

• Decision Date: 22 January 1917
• Docket Number: 18710
• Citation: 73 So. 617,112 Miss. 625
• Court: Mississippi Supreme Court
• Parties: WEISSINGER ET AL. v. DAVIS ET AL

73 So. 617

112 Miss. 625

WEISSINGER ET AL. v. DAVIS ET AL

No. 18710

Supreme Court of Mississippi

January 22, 1917

Division B

APPEAL from the circuit court of Desoto county, HON. E. D. DINKINS, Judge.

Suit by S. S. Weissinger and others, for the use of themselves and others similarly situated, against E. P. Davis and another. From a judgment sustaining a demurrer to the declaration and dismissing the cause, plaintiff appeals.

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

Affirmed and dismissed.

R. F. B. Logan, for appellant.

Shands & Montgomery, for appellees.

OPINION

COOK, P, J.

This suit was instituted by appellants, citizens and taxpayers of Desoto county against the appellee E. P. Davis, a member of the board of supervisors of said county, and the surety on his official bond, to recover for an appropriation made by the board of supervisors "to an object not authorized by law," which appropriation it is averred that Mr. Davis did not vote against. The court sustained a demurrer to the declaration, the cause was dismissed, and the plaintiffs appeal.

This suit was brought under section 346, Code of 1906, and, inasmuch as the averments of the declaration clearly show that the alleged appropriation was made to an object authorized by law, we can find no warrant of law for the maintenance of this action. The right to sue is fixed by the statute, and plaintiffs did not bring themselves within its terms. Averments of facts which would infer corruption do not alter the case. The statute fixes the terms, and if the object for which the appropriation was made was lawful, that ends the matter.

It may be that the attorney-general or the district attorney of the district would be authorized to bring the suit made by the declaration, but it is certain that members of boards of supervisors may not be harassed with lawsuits of this class by taxpayers. We do not, of course, express an opinion as to the case if brought by the proper authority, and only mean to say that, although the declaration may make out a case properly brought, we nevertheless hold that the parties to this suit were not authorized to bring the suit.

Affirmed and dismissed