Board of Sup'rs v. Wilson

114 So. 609, 148 Miss. 316, 1927 Miss. LEXIS 57

• Court: Mississippi Supreme Court
• Decided: November 21, 1927
• Docket: No. 26536.
• Status: Published

Opinion

McGtOwbn, J.,,

delivered the opinion of the court.

This is an appeal from a decree enjoining- the board of supervisors of Lauderdale county from spending money derived from the sale of bonds in the construction of a particular county road.

In December, 1924, the board of supervisors of Lauder-dale county submitted to the qualified electors thereof its proposal for the issuance of'three hundred thousand dollars of bonds, “the proceeds from the issuance and sale of said bonds to be used in constructing and extending of the public highways of the county so as to connect with improved highways of the adjacent county and to form complete intercounty and interstate highways,” which proposal the electors rejected. In January, 1925, the board' of supervisors adopted a resolution setting forth:

“That it is the intention of the board of supervisors to issue the bonds of the county of Lauderdale in the sum and amount of four hundred thousand dollars, the proceeds from the issuance and sale of said bonds to be used in constructing and extending the public highways of the county so as to connect with improved highways of adjoining counties and to form a complete system of intercounty and interstate improved highways, said roads being approximately ten miles on the Butler road; eight miles on the Meehan road; four miles on the Quitman road; nine miles on the Meridian and Philadelphia road; nine miles on the Meridian and Louisville road; eight miles on the iD'aleville road; and five miles on the Causey-ville road.”

This proposal to issue bond's was also submitted to the qualified electors of the county in an election called for that purpose and was, by them, approved. The ballot used in said election read as follows:

“Special 'Election, Lauderdale County, Miss.

“January 6> 1925.

“Proposition Submitted.

‘ ‘ Shall the board of supervisors of Lauderdale county, Mississippi, issue four hundred thousand dollars of the bonds of the said county for the purpose of constructing and extending the public highways of the county so as to connect with improved highways of adjoining counties, and to form a system of intercounty and interstate improved highways, as set out in the order of the board of supervisors, and as provided by lawl

“For the bond issue:-- — .

“Against the bond issue:-.”

On the coming in of the record of the election commissioners, the board ordered the issuance and sale of bonds to the amount of four hundred thousand dollars, the order therefor reciting that:

“The proceeds from the issuance and sale of said bonds be used in the construction and extension of roads within the county so as to connect with the improved highways of adjacent counties, and to form a system of in-tercounty and interstate highways, as set forth in the order proposing the issuance of said bonds.”

The bonds were issued and sold, and on their face recited that-they were issued “for the purpose of using the proceeds in building and extending the improved highways within the said1 county, under the authority of the statute laws of the state of Mississippi, and also pursuant to the orders duly passed by the board of supervisors of Lauderdale county, Miss.”

A part of the proceeds of those- bonds has been used in constructing some of the roads set forth in the board’s first order. The Meridian and Louisville road traverses Lauderdale and Kemper counties. The board decided not to improve the Meridian and Louisville road as it existed when the bonds were issued, but to improve another and different road from Meridian to the Kemper county line, which connects with another Kemper county road leading into the Meridian and Louisville road near Moscow.

During the pendency of these proceedings, the Kemper county board of supervisors had finally been permitted to issue bonds of road district No. 3 of said county for improving highways, See Board of Supervisors v. Calvert (Miss.), 106 So. 213. Thereupon the board of supervisors of Kemper county determined to improve from the Lauderdale county line, intersecting with the road via Shucktown, herein sought to be enjoined, which road has been constructed via Moscow connecting with the other road known as the Meridian and Louisville road.

No steps have been taken looking to connecting with the old Meridian and Louisville road by the construction of an improved highway in Kemper county toward Louisville. The action of the Kemper county board negatives the idea that any such action is contemplated. The proposed Meridian and Louisville road is several miles to the left of the old road, but is more nearly on an air line looking to Louisville as the objective from Meridian.

A number of taxpayers filed a petition in the circuit court praying for a writ of mandamus against the members of the board of supervisors of Lauderdale county, directing them to construct the Meridian and Louisville road as set forth in the order for their issuance of bonds. The writ was granted, but on appeal to this court, the judgment of the court below was reserved and the cause dismissed. Board of Supervisors of Lauderdale County v. P. C. White et al. (Miss.), 108 So. 913. The board then advertised for bids for the construction of the road from Meridian to the Kemper county line via Shucktown, which it had decided to construct in lieu of the original Louisville and Meridian road. Thereupon several taxpayers sued out a writ of injunction in the chancery court of Lauderdale county restraining the board of supervisors from making any contract for the construction of the road to be paid for out of the proceeds of the bonds here-inbefore referred to. On final hearing, the injunction was made perpetual, and the board of supervisors has brought the ease to this court.

The appellee’s contention is that the bonds were issued for the purpose of constructing a certain designated road, and under section 4, chapter 207, Laws of 1920, which provides'that the proceeds of such bonds “shall be placed in the county treasury ... or county depository as a special fund and shall be used for no other purpose than the-purpose set forth in the original resolution of the hoard of supervisors,” the proceeds must be so used.

The contentions of the appellant are: (1) That the ap-pellees’ contentions were decided adversely to them on the former appeal here in Board of Supervisors v. White (Miss.), 108 So. 913, and that the judgment rendered then is res ad judicata: (2) that there is no substantial deviation between the route of the road which the board of supervisors intend to construct and the road they designated in the order proposing the issuance of bonds as the Meridian and Louisville road; and, if mistaken in this (3) that the board was without power to designate the roads to be constructed before issuing the bonds therefor, and, consequently, the designation thereof here is not binding on the board.

In the former case, the judgment of the. court below awarding a writ of mandamus was reversed by this court, and the petition for the writ was dismissed for the reason there set forth, that “a writ of mandamus will not lie on the facts disclosed by this record.” In the former case, the effort was to coerce the board into awarding a contract for the building of a particular road. Here, the effort is to restrain the board from awarding a contract for the building of another and different road.

Assuming, however, that a question decided in the former case will he res adjudicata of the same question here, it does not appear what questions were decided in the former case, for there the board of supervisors filed separate and distinct pleas, based upon supposed questions of law and of fact, and it does not appear upon which the court rested its judgment. Consequently, the judgment then rendered is not res adjudicata here of any of the questions presented by' the record before us. Greene v. Merchants’ & Planters’ Bank, 73 Miss. 542, 19 So. 350.

Appellant contends that the bonds'were issued in this case under section 8496, Hemingway’s 1927 Code (chapter 175, Laws of 1914); while appellee says they were issued under and pursuant to sections 4007 et seq.

We feel sure that appellants’ contention is correct, as there is no similarity between the two schemes, and the entire proceedings of the board show that section 8496 et seq. was in their minds, they using the latter part of said: section in the resolution, in the ballot, and on the bonds as issued.- This scheme is county-wide, for a definite, specific purpose, in the construction of intercounty, improved highways, from bond issues.

1. Was there such a substantial deviation from the purpose expressed in the original resolution of the board as to warrant an equity court by its injunction in restraining the board of supervisors from constructing this new, or Shucktown, road? We think not.

The purposes stated in the resolution were twofold: First, the construction and extension of the present highways of Lauderdale county so as to connect with the improved public highways of the adjoining counties,-to be maintained by such 'counties out of the proceeds of bond issues, so as to form a complete system of intercounty, improved, public highways; and, second, to construct the definitely known highway, “the Louisville and Meridian road.”

When the board came to the point of finally letting a contract for construction, it found that Kemper county had issued bonds and had proceeded to construct a road leading- from the county line across its county on towards Louisville, apparently, the kind of intercounty highway described in section 8496, and, by their action or non-action, had declined to improve the old Louisville and Meridian road. In Lauderdale county the new route decreased the mileag’e slightly, connected with a bond issue improved road at the Kemper-Lauderdale county line, was some miles distant from and to the left of the old road. In other words, this road would carry out the purpose of the law in virtue of which the bonds had been issued.

On the other hand, the people had voted on the bond issue in the light of that promise held out by the board that the old, established Louisville and Meridian road was to be constructed. If this old road shall be adhered to, the road will not connect with an intercounty highway. There is a deviation, no doubt, but, considering the fact that, in effect, two promises were held out to the people one of which must fail, we think the board, under its constitutional jurisdiction of roads, was compelled to choose between the two routes. It could not fulfill both of them, but, by the route proposed, they comply literally with the statute and secure a road from Meridian to Louisville.

The board, in this state of the record, chose the road which accomplished the purpose of the statute, authorizing the bond issue, and this deviation cannot be said to be unlawful, because it more nearly carries out the purpose of the law — the construction of an intercounty highway connecting the two objectives.

We conclude, therefore, that the board of supervisors, who, acting under section 8496 el seq., Hemingway’s 1927 Code, issued bonds thereunder and collected: the proceeds thereof, may not be enjoined by a court of equity from executing a contract and paying therefor, when the road contemplated, the Shuektown road, complies with the dominant purpose of said statute, even though the resolution specifically designated an established road, the Meridian and Louisville road, and notwithstanding there is a deviation, for the most part, of several miles to the west of the named established road. To hold otherwise might defeat the construction of any improved road connecting with the two- points, Meridian and Louisville.

2, We pretermit a decision of the question as to whether or not the board had the power to designate the particular road 'to be constructed before .issuing the bonds, and as to whether or not the board was bound by its.said designation of the road prior to the issuance of the bonds.

The decree of the court below perpetually enjoining the board of supervisors from letting the contract for the construction of the new Meridian and Louisville road, the Shucktown road, and paying therefor out of the proceeds of the bond issue, is reversed, and decree will be entered here dissolving the injunction and dismissing the bill.

Reversed, and decree for appellant.

Cook and Holden, JJ., dissenting.