Entrican v. King

289 So. 2d 913
CourtMississippi Supreme Court
DecidedJanuary 28, 1974
Docket47266
StatusPublished
Cited by11 cases

This text of 289 So. 2d 913 (Entrican v. King) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Entrican v. King, 289 So. 2d 913 (Mich. 1974).

Opinion

289 So.2d 913 (1974)

Louie ENTRICAN et al.
v.
W. Hamp KING, State Auditor, etc.

No. 47266.

Supreme Court of Mississippi.

January 28, 1974.

Watkins & Eager, William E. Suddath, Jr., Jackson, Richard E. Stratton, III, Hobbs, Hobbs & Peeples, Brookhaven, for appellants.

A.F. Summer, Atty. Gen., by Maurice R. Black, Asst. Atty. Gen., Jackson, for appellees.

SMITH, Justice:

The suit, out of which the present appeal has arisen, was begun in the Chancery Court of Lincoln County by the State Auditor against appellants, four former members of the Lincoln County Board of Supervisors and the sureties on their official bonds, and the former clerk of the board (Chancery Clerk) and the sureties upon his official bond, as defendants. Following a trial of the case, the chancellor entered a money judgment against the defendants, *914 jointly and severally, in the sum of $54,414.18.

The gravamen of the complaint made against the former members of the Board of Supervisors was that they had, in their official capacities, expended on county road and bridge construction, maintenance and equipment, in the last three months of their final year in office, more than one-fourth of the funds budgeted to roads and bridges, contrary to Mississippi Code 1942 Annotated section 9118-15 (1952). It is not charged that total expenditures for the year, including those for the last quarter, exceeded the budget estimate for the year. As to the former clerk, it was alleged that he had issued the warrants for such expenditures.

The following facts are undisputed:

All of the money expended was devoted to county road and bridge construction, maintenance and equipment, conceded to be lawful objects over which the Board had exclusive, constitutional jurisdiction; the county received the full benefit of every dollar so expended; none of the defendants acted in bad faith or were guilty of fraud in making such expenditures; and none of the defendants personally profited or gained pecuniarily from any of the expenditures. All of this is conceded.

From the admitted facts, it will be seen that the suit was not for reimbursement for any loss or damages sustained by the county, nor for the recovery of any money of which it had been deprived. Consequently, if personal liability is to be imposed upon appellants, such liability necessarily is in the nature of a penalty. Since penalties are not favored in law, no penalty will be imposed unless it shall be clearly provided for, and statutes will be strictly construed against the imposition of a penalty.

In 1882 a general rule was established in this State in the case of Paxton v. Baum, 59 Miss. 531 (1882). The opinion of the Court in Paxton is relevant to the question now before us.

The act approved April 4, 1876 (Acts 1876, p. 46), requiring members of the board of supervisors to give bonds, intended to furnish a security to the public for the faithful performance of duty in the important matters confided to them; and as § 1386 of the Code of 1871 made them personally liable for money appropriated to any object not authorized by law, and authorized suit to be brought therefor, for the use of the county, by any tax payer, such suit was authorized to be instituted on the bond required as a security for the responsibility of the principal obligor.
......
The question is as to the interpretation of the expression "object not authorized by law." The objects to which money in the county treasury may be appropriated are designated by law, and it is not legally appropriable to any other purposes. If it is appropriated by the board of supervisors to some other object than is authorized by law, members are liable personally for it, unless they voted against such appropriation. It is for money appropriated to something for which the law does not permit it to be appropriated at all, in any way or under any circumstances, that members are personally liable. It is for a diversion of money from its legitimate objects, and not for appropriation to a proper object, although in an irregular or unauthorized manner, that liability is imposed on members personally. It is what the money is appropriated to, and not how it is applied, that furnishes the test of personal liability for it. "Object" signifies the thing aimed at, the end sought to be accomplished. If this is not the true interpretation of the language mentioned, members of the boards of supervisors would be liable personally for every mistake or error of judgment or of information as to facts whereby money was appropriated even to proper objects, if not *915 appropriated in strict accordance with law as to every circumstance attending it. Either members of the boards of supervisors are personally liable for every appropriation not made in strict conformity to law, or they are not liable except for a diversion of public money from authorized objects and its appropriation to such as are not authorized. The objects to which the boards may appropriate money are designated by law, and may be known to them; and, in all cases of doubt, they may resolve the doubt against the appropriation, and avoid risk of liability; and it may be supposed that for appropriations to objects not authorized by law, it was intended to make members of the boards of supervisors personally liable. But, in view of the well-settled rule of the common law that for errors or mistakes a public officer acting judicially or quasi judicially is not liable, it could not have been the purpose of the legislature to make members of boards of supervisors personally liable for errors or mistakes as to how to act in matters committed to such boards by law, and as to objects for which an appropriation of money is authorized to be made by them. It is when they disregard the law as to the objects to which it has devoted the public money, and divert it to some object to which the law has not devoted it, that personal liability attaches. (59 Miss. at 535).

Since Paxton, this Court has held, in several cases involving expenditures of public funds where such expenditures were devoted to lawful objects, the public sustained no loss, the officer making them did not profit personally as the result, and no statute imposed personal liability upon the officer, that the officer is not personally liable, although such expenditures were made in an unauthorized or prohibited manner. For example, see Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451 (1942); Clark v. Miller, 142 Miss. 123, 105 So. 502 (1925); National Surety Company v. Miller, 155 Miss. 115, 124 So. 251 (1929); Golding v. Salter, 234 Miss. 567, 107 So.2d 348 (1958); Barnett v. Lollar, 197 Miss. 574, 19 So.2d 748 (1944); Barnett v. Woods, 196 Miss. 678, 18 So.2d 443 (1944); National Surety Corporation v. State, 189 Miss. 540, 198 So. 299 (1940); State to Use of Lincoln County v. Green, 111 Miss. 32, 71 So. 171 (1916). See also Gully v. Bew, 170 Miss. 427, 154 So. 284, 721 (1934).

In Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451 (1942), the Court used this language:

Corruption not being charged, the appellant can recover if, but not unless, the appropriations here challenged were made "to an object not authorized by law." ... [N]o liability here arises, although the appropriations may have exceeded the amount authorized... .
[S]ince the appellees were authorized to appropriate money for the payment of the expense of the issuance of the bonds, no liability can here arise under Section 259, Code 1930, although the particular appropriation may have been unauthorized. (Citing Paxton).

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Bluebook (online)
289 So. 2d 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/entrican-v-king-miss-1974.