Brown v. Reeves

92 So. 825, 129 Miss. 755

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22495
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellants, taxpayers of Harrison county, brought this bill in the chancery court for the use of that county against four members of the board of supervisors of. said county and the United States Fidelity & Guaranty Company, the appellees. The case was tried on bill, answer, and proofs, and a final decree rendered dismissing appellants’ bill, from Avhich they prosecute this appeal.

Appellants alleged in their bill that they were taxpayers of Harrison county; that the appellees, other than the United States Fidelity & Guaranty Company, Avere members of the board of supervisors of said county for the term of four years beginning the first Monday in January, 1916; that the other appellee, the United States Fidelity & Guaranty Company, Avas the surety on each of the official bonds of said members of the board of supervisors; that during the yeai*s 1916, 1917, and 1918' said board appropriated to the four members thereof sued in this cause (hereinafter referred to as appellees), each of whom voted for such appropriations, large sums of money in excess of that authorized by law as compensation for their services as such members. The bill sets out the amounts of such alleged excess appropriations. The allegations of the hill were denied by appellees, and there Avas a trial on bill, answer, and proofs and a decree rendered dismissing appellants’ bill. There is no controversy as to the amounts appropriated by the board of supervisors to appellees as compensation for their services for the years -1916,1917, and 1918.

There are two questions only in this case: First, under the laAV has a taxpayer the right to maintain a suit of this character? Second, in vícav of the fact that the compensation of members of boards of supervisors is graduated by statute according to the number of inhabitants of the county Avhich they serve, hoAV is the population of such county determined? Our statutes having any hearing on the question of the right of a taxpayer of the county to bring a suit of this character are sections 293, 343, and 340, Code of 190(5 (Hemingway’s Code, sections 3665, 3716, and 3719), Avhich are as follows:

“293. Each member of the board of supervisors, before entering upon the duties of his office, shall execute a bond Avilh sufficient sureties, but neither of them shall be surety for the other, payable, conditioned, and approved as bonds of county officers are requirt'd to he, in a penalty equal to five per centum of the sum of all the state and county taxes shoAvn by the assessment rolls and the levies to have been collectible in the county for the year immediately preceding the commencement of the term of office of said member; and such bond shall be a security for any illegal act of such member of the board of supervisors, and recovery thereon may be had by the county for any injury by such illegal act of such member; or any taxpayer of the county may sue on such bond, for the use of the county, for such injury, and such taxpayer shall be liable for all costs in case his suit shall fail.”

“343. It shall be unlawful for the board of supervisors to allow a greater sum for any account, claim, or demand against the county than the amount actually due thereon, dollar for dollar, according to the legal or ordinary cash compensation for such services rendered, or for salaries or fees of officers, or materials furnished, or to issue county warrants or orders upon such accounts, claims or demands, when allowed for more than the actual amount so allowed, dollar for dollar; and any illegal allowance by such board may be inquired into by the proper tribunal, upon legal proceedings for that purpose, whenever such matter may come into question in any case.”

“346. If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person who is a taxpayer who will sue for the use of the county, and who shall be liable for costs in such Case.”

It will be noted that a taxpayer is only authorized to sue when the appropriation is “to an object not authorized by law.”

It is contended, on behalf of appellants, that any appropriation by a board of supervisors to the members thereof for their services as such members in excess of that authorized by law, is an appropriation “to an object not authorized by law,” as defined by said section 346, Code 1906 (Hemingway’s Code, section 3719) ; while, on the other hand, it is contended for appellees that the board in making such an appropriation, exercises a discretion given them by law, and that therefore it is an appropriation to an object authorized by law, although illegal, because the amount appropriated is in excess of that allowed by law. Appellants and appellees each insist that this question is settled in their favor by Paxton v. Baum, 59 Miss. 531. That case was most ably argued and presented to the supreme court, both at the first hearing and on suggestion of error. And judging from the opinion of the court by Judge Oa.ult.ele delivered on tlie .first hearing, and of Chief Justice Chalmers on the suggestion of error, it was considered with great (tare by the court. A proper analysis of this case shows, in our opinion, that it is decisive of the question here involved in favor of the contention of appellants. That was a suit in the circuit court by taxpayers of Warren county for the use of that county, against a member of the board of supervisors of said county and the sureties on his official bond, the declaration alleging that the board of supervisors had made forty-seven appropriations which were unauthorized by law, and which were voted 'for bv the defendant as a member of such board. The appropriations which the declaration set out as constituting breaches of the defendant’s bond were as follows : ‘

“(1) To G. M. Haszinger the sum of seventy-seven dollars and eighty-eight cents for material and work done on the Hall’s Ferry road,* under a contract not let out in the open session of the board; (2) the sum of thirty dollars to A. L. Bierce, for specifications for work done on Cowan road; (3) the sum of twelve dollars to E. Klein-man, a former member of the board of supervisors, for servicies performed by him as a member of the board in its recess, called ‘extra days’ services’; (4) to 1). Kennedy, the sum of ninety-nine dollars and seventy-five cents, for work done on bridges on the Warrenton road, upon a contract not let out in the open session of the board.”

Tt will be noted that breach 3 as alleged consisted of the sum of twelve dollars appropriated to a former member of the board for services performed by him as such member in its recess called “extra days’ services.” There was a demurrer interposed to the declaration setting up the following grounds:

“(1) That the plaintiffs had no right to sue on the bond; (2) that nearly all the appropriations alleged as breaches were not ‘to objects not authorized by law’; and (3) that the board, under the state Constitution, had exclusive jurisdiction of the matters mentioned and the right to make the appropriations.”

The trial court sustained only the first ground of demurrer, which was that plaintiffs as taxpayers had no right to maintain the suit; and thereupon judgment was entered dismissing their suit, from which an appeal was taken to the supreme court. In the supreme court the judgment of the lower court was reversed. Under the reasoning of both opinions in the case the reversal was based alone on the ground that plaintiffs as taxpayers were entitled to recover under the third breach assigned in the declaration, that is, that defendant participated in the appropriation of a sum of money to another member of the board for his services, which ivas not authorized by law. As to the other breaches of the defendant’s bond assigned in the declaration, they were held to be matters in the discretion of the board, about which they had the right to exercise their judgment, for which therefore a taxpayer-had no right to sue. The opinion omthe suggestion of error made it plain that a taxpayer could not sue for any breach of the defendant’s bond assigned except the third, because the others involved, appropriations to objects authorized by larv, and therefore, even though illegal as to amounts, still a taxpayer could not sue therefor. On tjiis particular branch of the case the court used the following-language :

“But we cannot ignore the fact that supervisors in the discharge of many of their functions, are judicial officers, and especially so in adjudicating upon the validity of claims against the county. A lav which would make them personally liable for every erroneous judgment rendered, if constitutional, would certainly have the effect of preventing any solvent man from accepting the office, or of becoming the surety of those who did.”

On the other hand, the court made it equally plain that flie third breach assigned, consisting of the illegal compensation allowed one of the members of the board, was not an appropriation to an object authorized by law, and therefore a matter about which the board had no discretion, and for this reason a taxpayer had the right to maintain a suit therefor. On this proposition the court said:

“Certainly they would he liable for all money illegally voted by the members to themselves, since no officer can claim to be acting as a judge in voting money to himself.’’

In appropriating money for their own services it cannot be said that the members of a board of supervisors act judicially, because, as well said by Chief Justice Chal-mers in that case, one cannot act as judge in his own case. The members of the board in making appropriations for their own compensation act in a ministerial capacity. They know what services they have rendered. No evidence is necessary on that subject. They know the facts, and are presumed to know the law, and are so interested in their own behalf that they are not capable of exercising any discretion on the question of their own compensation. Therefore we hold that an illegal appropriation for this purpose is an appropriation “to an object not authorized by law,” for which a taxpayer may sue under our statute. In other words, such an appropriation, in so far as it is illegal, is an appropriation “to an objeét not authorized by law,” as defined by the statute.

The next question, in view of the fact that the compensation of members of boards of supervisors is graduated under sections 2394 and 2395, Code of 1906 (Hemingway’s Code, sections 1878 and 1879), according to the population of the county which they serve, is: How is such population ascertained? Appellants contend that appellees’ compensation for the years in question is to be based on a population of less than forty thousand inhabitants; while the appellees contend that it is to be based on a population of forty thousand inhabitants or more; and appellants contend that resort must be had to the federal census to delermine to which class'Harrison county belongs, whether to a county with a population of forty thousand inhabitants or more, or to a county with less than forty thousand inhabitants. There is no authority of law for a board of supervisors taking a census of a county, and, although the legislature is authorized by section 105 of the Constitution to provide once in every ten years for the enumeration of the inhabitants of the state, as well as the qualified electors thereof, no such census has ever been taken under the Constitution of 1890, and probably not since the Civil War. The legislature, in adopting the statutes referred to above, graduating the compensation of members of boards of supervisors according to the population of the counties they serve, doubtless had in mind the fact that this section of the Constitution had never been put in force by appropriate legislation, and probably would never be done because of the fact that, for all state •purposes, the federal census had been and would continue to be sufficient. By section 256 of the Constitution it is provided that the apportionment of the senators and representatives in the legislature may be according to the federal census of 1900 and decennially thereafter. This provision of the Constitution bears out the idea that the legislature intended, in the absence of a state census, to look to the federal census for all state purposes.

The authorities are all agreed that the courts will take judicial notice of the prevailing federal census; that they will take judicial notice of the federal census in ascertaining the population of the state, county, city, town, township and village. 23 C. J. 161. In 15 C. J. p. 499, section 163, this language is used:

“Except where it is specifically provided that counties are not by operation of law reclassified under a new census, but remain in the old classification until reclassified by the legislature,- statutes classifying counties according to population for the purpose of fixing salaries of county officers operate automatically to place a county in a cer--tain class on the last census showing it to have the required population but such statutes do not so operate merely on the county attaining such population, but only on the legal ascertainment of the fact by the census bureau, and they will not be allowed to operate so as to change an officer’s compensation during his term in violation of constitutional provisions.”

However, there can be no difficulty in classifying Harrison county so far as its classification affects appellees’ compensation for the years 1916, 1917, and 1918, for the federal census for 1910 as well as that for 1920 shows its inhabitants to have been less than forty thousand.

Reversed and remanded.