Weston v. Hancock County

• Decision Date: 06 February 1911
• Citation: 54 So. 307,98 Miss. 800
• Court: Mississippi Supreme Court
• Parties: J. H. WESTON v. HANCOCK COUNTY

54 So. 307

98 Miss. 800

J. H. WESTON v. HANCOCK COUNTY

Supreme Court of Mississippi

February 6, 1911

October 1910

APPEAL from the chancery court of Hancock county, Hon. T. A. Wood Chancellor.

Suit by J. H. Weston against Hancock county. From a decree dismissing the bill, complainant appeals.

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

Affirmed.

E. J Gex, for appellant.

1st. The first ground of objection is that while working of roads under the contract system that the board of supervisors of said county attempted to issue bonds for the purpose of working roads and building bridges, and the bill alleges that having chosen to work the roads by contract that the county had no right to issue bonds for the purpose of working public roads. Section 4441 of Mississippi Code, provides for working of roads by contract and section 4443 of the same Code provides the method of raising money for the purpose of working the roads, but nothing is therein said as to the issuance of bonds for the working of said roads. It is true that section 331 of the said Code allows the board to issue bonds for building bridges and constructing roads, but this section does not apply to those counties operating under the contract system, for the reason a separate method is provided for the working of roads under that system in section 4443.

2nd. It is next contended that the notice of the issuance of the said bonds is defective in not stating the amount that the bonds will be issued for and in not stating what amount will be used for building bridges and what amount will be issued for working roads.

We find the notice reads as follows:

"Be it resolved that it is the purpose of the board of supervisors of Hancock county to issue the bonds of said county to the amount of $ 125,000.00, or so much thereof as may be necessary for the purpose of working roads and building bridges in and for said Hancock county, state of Mississippi."

This notice is not sufficient because it does not state the exact amount of bonds to be issued nor does it state how much to be used for roads and how much for bridges. We find the rule laid down in the cases of Hillsborough County v. Henderson, 33 So. 997; Smith et al. v. Mayor, etc. of City of Dublin, 39 S.E. 327.

From the above authorities it will be seen that the notice in this case does not follow the requirements laid out in the list of authorities cited by us.

3rd. Next ground of attack is that the notice of the issuance of said bonds was not published three weeks next preceding the issuance of the bonds as provided for in section 333, Mississippi Code. The rule laid down for the issuance of bonds we find to be in the 21st Am. and Eng. Ency. of Law, 2nd Ed., p. 45, to be as follows:

"Conditions, Precedent to Issuance of Bonds. In general: Where the statute authorizing the issuance of municipal bonds prescribed the mode in which the power is to be exercised the municipality can only in the manner prescribed, and all conditions imposed by the legislature or constitutional provisions, with regard to the exercise of the power must be strictly complied with." City of Dawson v. Dawson Waterworks Co., 106 Ga. 732, 32 S.E. 907. We would cite the court to the case of Davis et al. v. Dougherty County et al., 42 S.E. 764.

4th. The next objection raised in the said proposed issuance is that the board did not issue the bonds at the August meeting but that the said bonds were ordered issued at the September meeting.

5th. The next objection to the issuance of the said bonds is that while the notice of the proposed issuance of the bonds was still pending and before the bonds were issued that the board of supervisors repealed the method of working the roads by contract and adopted the method provided for in the Laws of Mississippi 1910, ch. 150.

McDonald & Marshall, for appellee.

Appellant's first objection is that, while operating under the "Contract System," the board had no right to issue bonds and that the revenue for the purpose of working roads could be derived only under section 4443, Code of 1906. Appellee's response to the objection is that while acting under the "Contract System" or under said chapter 150 it had a right under section 331 of the Code of 1906, to issue bonds; and besides, section 4469 instead of 4443 is the law relative to raising funds applicable to Hancock county in July, 1910. Either section provides only the mode of taxation and the board had the right to issue bonds and the payment of the bonds would be by the mode of taxation prescribed in said section. Whether acting under the "Contract System" or under chapter 150 of the Laws of 1910, the board of supervisors could, in either event, issue bonds under section 331 and, therefore, the passing from one system to the other, pending the notice of the issuance of the bonds, did not affect the county's rights.

The second objection is that the notice does not state the amount to be used for roads and the amount for building bridges but that the amount for both purposes is lumped, and that the notice states that one hundred and twenty-five thousand dollars, or so much thereof as may be necessary, will be issued and that only one hundred thousand dollars was ordered issued. We content ourselves with stating that this objection has been fully answered and overruled in the case of Kemp v. Hazlehurst, 80 Miss., page 443.

The third objection is that the notice of the intention to issue bonds was not published for three weeks preceding the August meeting, which was the first Monday and the first day of the month. The notice had to be published for three weeks, and "three weeks" meant there must be three weeks between the first insertion, which was July 9th, and the first Monday in August, which was the first day. (See section 1607, Code of 1906.) Had July sixteenth been the first insertion there would not have been three weeks notice before the first day of August, as required by law. Therefore, the publications in the newspaper, of date July 9th, July 16th and July 23rd, constituted, under the law, the three weeks next preceding August the first.

However, if they did not, the notice was also published, as shown by the bill and admitted by the demurrer, in those three issues and also in the issue of July 30th. Appellant states that the proof of publication shows that the board intended the notice to be inserted only on the issue of July 9th, 16th and 23rd. The board intended what its order said: "According to law."

The fourth objection is that there was no order made at the August meeting, but at the September meeting. We do not think that it was incumbent upon the board to make the order at the August meeting. The notice of the intention to issue bonds at that time was for the purpose of fixing a date certain in which objecting taxpayers or others interested might appear and present objections to the contemplated actions.

Appellant contends that chapter 150 of Laws of 1910 is unconstitutional and cites section 85 of the Constitution. It was certainly not the intention of the framers of the Constitution to require the legislature to create simply two systems of working public roads, one by contract and the other by county prisoners, and to bind the state for all time by one of said methods. Looking to the poor results from the old overseer systems it was simply an injunction to the legislature to provide these other two means and was never intended to be exclusive of the other methods that might be provided by law.

The exhibits to the petition show that each step looking to the issuance of bonds has been carefully taken, having in view the action of this court in the case of Kemp v. Hazlehurst, and, so far as applicable to a county, using the same phraseology that was used in the orders and notices set out in full in the report of said case.

OPINION

MAYES, C. J.

On Motion to Advance.

This case seems to involve the validity of a bond issue made by the county of Hancock in the Southern Supreme Court district, which is now on call before the court. A motion is made to advance this cause, as a preference case, under section 4907 of the Code of 1906. As we are now on the call of the docket for the Southern district, the district to which this case belongs, and since the case is one of public importance to the county from which it comes, without deciding whether the case falls within the above provision of the Code as a preference case, we sustain the motion and advance the cause. It is the rule of this court that, when upon the call of a particular district, cases from that district shall be heard in the order of filing. Still this rule is not so inflexible as that it cannot yield, in order to advance a cause of this nature under the circumstances here presented.

Motion sustained, leaving counsel to submit cause on briefs or fix date for oral argument agreeable to counsel for both sides, and with the consent of the court.

Where oral argument is asked in any case, by consent of both parties the request may be withdrawn at any time, and case submitted on brief. This remark is occasioned by the fact that, while no oral argument is requested in this case, there is made a motion to advance for hearing, whereas if argument is not desired, all that was necessary was a submission of the case, and the present motion was...