Opinion
No. 33714.
May 15, 1939.
1. HIGHWAYS.
The county board of supervisors' appointment of its members as road commissioners for their separate districts can be evidenced only by order on board's minutes (Code 1930, section 6381).
2. HIGHWAYS.
The statute requiring member of county board of supervisors to obtain at least two bids before making contract in vacation, where amount thereof exceeds $100, does not authorize member of board to make contract for construction and maintenance of public roads (Code 1930, section 6388).
3. HIGHWAYS.
A member of county board of supervisors had no power to purchase goods for use on public roads without authorization by board, in absence of emergency requiring repairs within 3 days (Code 1930, section 6365).
4. HIGHWAYS.
An oil company cannot recover from county price of goods purchased by member of county board of supervisors, not then in session, without authorization by board, for use on public roads, though such member was a road commissioner (Code 1930, sections 6381, 6386, 6388).
APPEAL from the circuit court of Simpson county; HON.E.M. LANE, J.
W.M. Lofton, of Mendenhall, for appellant.
As a matter of fact this suit is strictly against Hiram S. Tullos, president of the board of supervisors of Simpson County, Mississippi, and the sworn account, with the exhibit thereto attached, shows that he had nothing to do with it, and shows further that he never received any of these products mentioned in this claim, and the testimony fails to show that he had any knowledge of this matter until the claim came up for hearing before the board of supervisors of Simpson county, when and where it was rejected. The testimony of M.Q. Holbrook, who was introduced as a witness by the plaintiff says that he bought the articles mentioned in the sworn account on the street of Mendenhall, and so far as he knew the board as a board never knew anything about it, and he further testifies that the board as a board never knew anything about it until this claim came up before said board by the plaintiff for payment, and he further says that he did not know whether Hiram Tullos ever saw any of the articles mentioned in this order, and he says that he don't know what became of it.
The plaintiff could not recover under the facts in this case against Simpson County, if Simpson County had been made a party to this suit because there was no order entered on the minutes of the board showing any purchase of these goods from the plaintiff, and the board of supervisors speaks only through its minutes.
Board v. Patrick, 54 Miss. 240; Bridges Hill v. Bd. of Suprs., 58 Miss. 817.
Certainly there is no law that authorizes an individual member of the board of supervisors to make any contract binding the county except under our emergency statute, and nowhere is it shown that the board of supervisors passed any order, authorizing the said M.Q. Holbrook to make the so-called contract with the plaintiff, but to the contrary this witness, Holbrook for the plaintiff testifies and it is shown in this record that he made this contract with a salesman of the said plaintiff without the knowledge or consent of the board of supervisors.
Section 2902, Code of 1930; Kidder v. McClanahan, 88 So. 508; Franklin County v. American Dis. Co., 121 So. 271.
All contracts made with a county must be entered on the minutes of the board.
Dixon v. Green County, 25 So. 665.
We are of the opinion that from the authorities cites this court will reversed the judgment of the lower court and render a judgment here for the appellant.
Murphy v. Panther Oil Grease Mfg. Co., 179 So. 879.
Thos. S. Bratton, and Hilton, Berry Kendall, all of Jackson, for appellee.
If the learned counsel for the appellant is basing his argument upon the proposition that the original summons in the justice court summoned Hiram Tullos, president of the board of supervisors to answer suit of the Panther Oil Grease Company, we would call his attention to section 600 of the Code of 1930, which provides that no defect in the writ shall cause a reversal of the case after the verdict.
Section 755, Code of 1930.
The board of supervisors' duties as defined in section 6381 of the Code of 1930 were being performed as permitted and outlined by the statutes under the chapter on roads and bridges in section 6386 of the Code, in the making of the contracts, here as made by the individual member of the board of supervisors for Simpson County in purchasing supplies to work the public roads in his district.
Sections 6064, 6381, 6386 and 6388, Code of 1930; Laws of 1932, page 498; Choctaw County v. Tennison, 134 So. 900; Tucker Printing Co. v. Bd. of Suprs., Attala County, 158 So. 338.
We submit that section 6388 of the Code applies solely and wholly to the power and right of the individual member of the board of supervisors to purchase these supplies for the purpose of maintaining and working the roads of Simpson County in his District No. 2. The evidence of Mr. Holbrook, a member of the board of supervisors, is that he was a supervisor of District No. 2; he testified as to the system being what is commonly known as the beat ownership system, under the Laws of 1912 as amended by the Laws of 1928 in section 6381 of the Code. He testified further that the board of supervisors did not employ a road commissioner, and that each supervisor was the road commissioner in his district. The supervisors bought their supplies and materials paid for the labor and worked the roads in their separate districts. He testified that the greases here sued for were purchased by him for Simpson County in the working of the roads in Beat 2, and was used in the machinery and that they had to have this grease to operate the machinery; that it was for the trucks used in the road work. Mr. John Smith, chancery clerk, keeper of the minutes of the board of supervisors, was introduced and he introduced the minutes of the board of supervisors at its June, 1916 meeting, placing the county's public road works under the beat ownership system. He testified further that the board advertised for its supplies and equipment, machinery used in working the road, but where it was less than $100 that the individual members of the board bought the supplies usually themselves and same was allowed and paid for by the board of supervisors. Mr. Smith testified that the board of supervisors did buy these orders from various places for various supplies for less than $100, and these purchases were made by individual members of the board and the board would pay for them. It seems to us that one of the things that should be inquired into in this case is, did the individual member of the board of supervisors violate his rights and duties under section 6388 of the Code. In determining that question, we should look carefully into the proposition as to whether or not these separate and distinct sales at different times and in different months constituted separate contracts or purchases. If we are right in this contention, then, there can be no question but what the limitations placed by section 6388 were not violated by Mr. Holbrook in this transaction. Now, let us bear in mind that the evidence in this cause does not hint at the proposition that there was any contract standing between the appellee and the member of the board of supervisors, Mr. Holbrook, whereby Mr. Holbrook would buy through any set period of time or continually or continuously such articles of supplies as were purchased herein. It is not shown but that it was more than an incidental purchase for supplies needed in the maintenance of the highway which would have been made from any other salesman or any other company supplying such materials. But let us concede for the sake of argument that the reverse is true, still, there would be, if true, a contract for the purchase of indefinite quantities of separable commodities and each purchase would be a separate contract and so long as the separate purchases on separate days did not exceed the $100, Mr. Holbrook, as an individual member of the board would have a perfect right to make the purchase.
23 R.C.L., pages 1341 and 1342, sec. 164, and page 1342, sec. 166; 55 C.J., page 514, par. 508, page 235, sec. 196, and page 562, sec. 571; Tucker Printing Co. v. Bd. of Suprs., Attala County, 158 So. 336.
In the case of State for the use of Russell v. McRae, 152 So. 826, this court has held that the individual members of the board of supervisors became and were the road commissioners, for the board, under section 6381.
Section 6064 under the chapter on Public Purchases requires the emergency to exist for the purchase of supplies in the sum of $100 as meant in that chapter on public purchases, but section 6388, under the subject of roads and bridges, chapter 159, specifically provides that a member of the board of supervisors in vacation without competitive bids may purchase up to $100 and do this without getting competitive bids. In other words, so far as these purchases under consideration here are concerned, the question of emergency has no place in the argument.
Counsel also argues that the board of supervisors cannot contract except through its minutes. In contracts of this nature under section 6388 of the Code, the only contract for the board to ever make on its minutes is one paying or rejecting the account for less than $100 made in vacation by its member.
Argued orally by W.M. Lofton, for appellant, and by R.T. Hilton, for appellee.
Several interesting questions are presented by this record, but it will be necessary for us to consider only one of them, for our answer to it will determine the controversy, and the case will be stated only in relation thereto.
The action is by the appellee to recover the price of goods alleged to have been sold the appellant for use on its public roads. The goods were purchased by a member of the appellant's board of supervisors when the board was not in session, and were delivered to and accepted by him for the appellant, and used on its public roads. This purchase was not authorized by the board of supervisors. The court below, at the request of the appellee, instructed the jury to return a verdict for it, and there was a verdict and judgment accordingly.
The appellant constructs and maintains its public roads under the provisions of section 6381, Code of 1930, under the direct supervision of its board of supervisors, no road commissioner having been appointed. While there is no order on the minutes of the board so directing, parol evidence discloses that each member of the board acted as road commissioner for his district.
The appellee says that this contract of purchase, though made by a member of and not by the board of supervisors, is valid for two reasons: (1) the member making the contract was a road commissioner, and, therefore, under section 6386 of the Code, had the right to purchase these goods; and (2) that section 6388 of the Code authorized him so to do.
We are not called upon to determine whether under section 6381 of the Code a board of supervisors has the right to appoint its members as road commissioners for their separate districts, for the reason that if we should hold that the board has this right, its exercise can be evidenced only by an order on its minutes.
Section 6388 of the Code is as follows: "Where any contract is made, as provided herein, by any member of the board of supervisors in vacation, without competitive bids, and the amount of such contract exceeds the sum of $100, it shall be the duty of the member of the board of supervisors making such contract to obtain bids from at least two bidders before making such contract, and to file a statement of the amount of each such bid with the board at its next meeting."
This section does not confer any authority on a member of a board of supervisors to make contracts for the construction and maintenance of public roads; it assumes that such a power is elsewhere provided, and simply regulates what the member shall do when the contract exceeds the sum of $100. Its lanuage is "Where any contract is made, as provided herein, by any member of the board of supervisors in vacation," etc. The only section of Chapter 159 of the Code, in which section 6388 appears, conferring power on a member of a board of supervisors to contract for the maintenance of public roads, is Section 6365, which confers such power only in the case of an emergency requiring repairs on a road to be made or begun within three days. If we assume, for the purpose of the argument, that this section applies here, no such emergency is shown or claimed to have confronted this member of the board when he purchased the goods.
The appellee cannot recover and the court below erred in directing a verdict for it. Since no request for such a verdict was made by the appellant, we can only reverse and remand the case.
Reversed and remanded.