Opinion
No. 37427.
March 27, 1950.
1. Counties — claims against — order of board allowing — necessity of — mandamus.
The order of the board of supervisors allowing a claim against the county must be the foundation for proceedings against the board, not the action of the clerk in issuing a warrant.
2. Mandamus — counties — warrants issued without support of records of board.
Warrants issued by the clerk of the board of supervisors, when there was nothing in the minutes of the board in allowing the claims or therein theretofore to support the validity thereof, such as the calling for and submission of bids, the making of contracts as to the items for which the allowances were made, are not sufficient to support a petition in mandamus to compel payment.
8. Counties — board of supervisors — contracts by — jurisdiction special and limited.
A board of supervisors, when acting judicially, is a court of special and limited jurisdiction; and in making contracts, the record must show the necessary conditions to have existed before the judgment can be valid or the contract legal.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Smith County; SEBE DALE, Special Judge.
R.S. Tullos and J.D. Martin, for appellant.
We say that the orders of the board are valid orders and that the warrants were legally issued and should be paid by the county, and we rely on the following authorities which we contend are in point: A.H. Arthur, Clerk, etc. v. Adam and Speed, 49 Miss. 404; Byrd v. Byrd, 193 Miss. 249; Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902. In the latter case the Court held as follows: In the absence of proof to the contrary, it is presumed that public officers performed their duty in the manner required by law . . . this presumption applies to minutes of meetings of Board of Supervisors, and the burden is upon the person challenging the legality thereof to show that the meeting was illegal."
We submit that this burden has not been met as reflected by the record in this case.
We further submit that in a proceeding of this nature the chancellor or judge is without authority to adjudicate the validity of items of such warrants and obligations; such objections constituting collateral attacks on the county board's judgment. J.C. Hegwood, et al. v. Board of Supervisors of Smith County, 140 So. 223.
Appellee in the lower court argued that the statute of limitations barred this suit, but we submit that the lower court correctly overruled defendant's plea and held that plaintiff was not barred. That the lower court was correct in so holding we refer to the case of Fuqua v. Board of Supervisors of Itawamba County, 4 So.2d 350.
The claims involved in this suit were presented to the board of supervisors as provided by Sec. 2932, Code 1942 and said claims were then considered and properly allowed.
E.L. Dent and L.D. Pittman, for appellee.
We respectfully submit that before the writ of mandamus should issue it must be shown by appellant that the warrants issued were passed and issued legally and on a legal claim. Jackson Equipment Service Co., et al. v. Dunlop, et al., 172 Miss. 752, 160 So. 734; Jefferson County v. Arrighi, 51 Miss. 667; State Board of Education v. West Point, 50 Miss. 638; Beeman v. Leake County Board of Police, 42 Miss. 237; Attala County Board of Police v. Grant, 17 Miss. 77, 47 Am. Dec. 102.
In the case of Polk v. Tunica County, 52 Miss. 422, it is said: "In no case is the warrant, which is the act of the clerk, a cause of action. It is the order of the board allowing such claim which is evidence of the claimant's right, and the foundation of any proceeding against the board. The warrant is the evidence to the treasurer of the allowance by the board of the sum named, and is his voucher for the payment, but the validity of the claimant's demand depends upon the judgment of the board allowing his demand." See also Honea v. Board of Supervisors of Monroe County, and Board of Supervisors of Monroe County v. Honea, 63 Miss. 171.
In addition to the above cited authorities, the interesting case of Cleveland State Bank v. Cotton Exchange Bank, 119 Miss. 868, 81 So. 170, is somewhat similar to the case at bar.
We particularly refer to the case of Lee County v. James, 178 Miss. 554, 174 So. 76, and the authorities therein referred to, wherein, among other things, it is clearly and positively stated: "And always it has been the positive rule in this state, both by statute and by a long line of judicial decisions strictly enforcing those statutes, that boards of supervisors can bind counties, or districts therein, only when acting within their authority and in the mode and manner by which this authority is to be exercised under the statutes, and that their contracts, and every other substantial action taken by them must be evidenced by entries on their minutes, and can be evidenced in no other way."
In the mandamus suit the petitioner or plaintiff must show that he has a present, existent, actionable title or interest, and this title must be complete at the time of the institution of his action, and that such right must not only be complete but it must be clear. So announced this Court in the case of American Book Co. v. Vandiver, in a mandamus case reported in 178 So. 598, 181 So. 518.
As to contracts by such bodies as the board of supervisors to make the county liable, it is a familiar law that such boards can only bind the public by contracts entered on their minutes. See State Highway Department v. Duckworth, 178 Miss. 135, 172 So. 148, and the many authorities cited in this case.
Holmes Tullos instituted mandamus against the Board of Supervisors of Smith County to compel payment of three warrants, payable out of the Beat Three Maintenance Fund and alleged to have been owned by him. From a dismissal of the petition, he appeals.
One of the warrants, dated November 22, 1939, was issued to Mississippi Culvert and Machine Company. The other two, dated December 29, 1939, were issued to Dixie Culvert and Metal Company. Upon presentation, payment was refused by the County Depository because there was not sufficient money in the fund.
The orders of the Board allowing the accounts were dated November 22 and December 20, 1939. In the first instance, it was stated that the amounts were for rental on machine and for parts. In the other two instances, the payment was for culverts.
Appellant contends that the warrants were valid, and the orders of the Board, allowing the accounts, constitute judgments against the county.
However, there is nothing in these orders to show the existence of contracts between the Board and the original creditors. On the contrary, the clerk of the board testified that there was nothing in the records or minutes to show a call for bids, the submission of bids, the making of contracts as to any of these items, or whether the rental for the machinery was by the day, week or month. In fact, there were no bills or statements in the record even showing the existence of the accounts. In addition, it was shown that there was not sufficient money in the fund to pay the warrants at the time of issuance. It also appeared that the new board, at its meeting January 1, 1940, attempted to rescind the orders and warrants; and subsequently, in October 1940, ordered these claims and warrants disallowed, and directed the County Depository not to pay them. This suit was not even instituted until September 4, 1946. Holmes Tullos was the Clerk who issued the warrants, though the record does not show that he is the same person as the appellant.
(Hn 1) The order of the Board allowing a claim, not the act of the clerk issuing a warrant, must be the foundation of proceedings against the Board. Board of Supervisors of Warren County v. Klein, 51 Miss. 807; Polk v. Tunica County, 52 Miss. 422; Honea v. Board of Supervisors of Monroe County, 63 Miss. 171.
(Hn 2) Neither the petition nor the proof showed that the steps necessary to the making of valid contracts had been taken. The orders neither showed nor recited the jurisdictional facts. In Jackson Equipment Service Co. et al. v. Dunlop et al., 172 Miss. 752, 160 So. 734, this court held that, on a collateral attack, nothing is presumed in favor of a court of limited jurisdiction, but the record must show on its face that such court had jurisdiction. It pointed out, from a long list of authorities, that (Hn 3) a board of supervisors, while acting judicially, is a court of special and limited jurisdiction; and, in making contracts, the record must show the necessary conditions to have existed before the judgment can be valid or the contract legal. Board of Supervisors of Jefferson County v. Arrighi, 54 Miss. 668; Cleveland State Bank v. Cotton Exchange Bank, 119 Miss. 868, 81 So. 170.
Affirmed.