Pidgeon Thomas Iron Co. v. Leflore County

99 So. 677, 135 Miss. 155, 1924 Miss. LEXIS 25

• Court: Mississippi Supreme Court
• Decided: April 21, 1924
• Docket: No. 23987
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

This is an appeal from a decree of the chancery court of Leflore county sustaining the demurrers of appellees, defendants below, to the bill of complaint of the Pidgeon Thomas Iron Company, appellant, filed against Leflore county, the members of the board of supervisors of Leflore county, individually, and the United States Fidelity & Guaranty Company, surety. The appellant filed its bill charging that the board of, supervisors of Leflore county advertised, as the law directs, for bids for the construction of a certain concrete bridge in said county, according to plans and specifications on file in the office of the clerk of said board, and at the same time required that the bidders should file with their proposals a surety bond, in the sum of two thousand five hundred dollars, conditioned according to law; that the Larimer & Burgett Bridge Company, in answer to said advertisement, filed its proposal for said work with the clerk of the board, and at the same time filed with its proposal its bidder’s bond as required by the advertisement for bids, in the sum of two thousand five hundred dollars, with the United States Fidelity & Guaranty Company as surety, conditioned that in the event the said contract should be awarded to the said Larimer & Burgett Bridge Company, that the said bridge company would thereafter execute and enter into a formal contract, within the time required by law, for the construction of said work, and execute a good and sufficient bond as required by law for the performance of the terms and conditions of said contract; that said proposal by the said Larimer & Burgett Bridge Company was accepted by the board of supervisors and the contract made with the said bridge company for the erection and construction of said work.

The bill further charged that the bidder’s bond filed with the proposal by the said Larimer & Burgett Bridge Company was executed by the United States Fidelity & Guaranty Company as surety, and was conditioned as follows:

“Whereas, the said principals have submitted to board of supervisors of Leflore county, Mississippi, a proposal for certain bridge work; and

“Whereas, it is required by the advertisement for proposal of said work that these presents accompany the proposal, now, therefore, the condition of this obligation is such that if, in event of the contract for certain bridge work being awarded the said principals, the principals shall execute and enter into a formal contract within the time required and will furnish good and sufficient surety to secure the performance of the terms and conditions of the contract, then this obligation to be void, otherwise to remain in full force and effect.”

The bill further charges that the work was done according to the plans and specifications and that upon completion of said work the same was accepted and paid for at the contract price by the board of supervisors, and the Larimer & Burgett Bridge Company thereafter released from any further liability to said county, and that more than six months had elapsed from the date of such acceptance and payment.

The bill further avers that the appellant is engaged in the business of furnishing material for the erection and construction of bridges, and that at the request of the said Larimer & Burgett Bridge Company it furnished certain material which was used and entered into the construction of said work, amounting in the aggregate to one thousand three hundred ninety-eight dollars and ninety-eight cents; that this amount had never been paid; that the said Larimer & Burgett Bridge Company7 is insolvent, and consequently the appellant was unable to collect from the bridge company the amount due it for the material furnished in the erection and construction of the bridge.

The bill further avers that under chapter 217, Laws of 1918, after the execution of the said bidder’s bond by the successful bidder, the said board of supervisors should have required a formal construction bond from the Larimer & Burgett Bridge Company for the protection of materialmen, and that the said board in disregard of its duty under said act, negligently and carelessly, and in disregard of the rights of the appellant, neglected to require said contractors to execute the bond as required by said statute, and permitted the said contractors to enter into said contract and complete the same without giving any security therefor, by bond or otherwise, for the payment of - materialmen, and that in consequence there is now no fund available for the creditors of the said contractor to collect the money for labor and material furnished, and that, as a result of the negligence and carelessness of the said board of supervisors and Leflore county, said county and the board of supervisors, officially and individually, have become liable to the appellant for the amount furnished by it to the contractors for material used in the construction of the bridge.

The bill further charged that the condition named in the bidder’s bond to-wit :

“The principals shall execute and enter into a formal contract within the time required; and will furnish good and sufficient surety to secure the performance of the terms and conditions of the contract.” — has been breached, and as a consequence of the violation of the condition of said bond, which inured to the benefit of appellant, a right of action has accrued to the appellant and the other creditors of the said bridge company, under chapter 217, Laws of 1918, against the United States Fidelity & Guaranty Company, surety, for the amount of material furnished in the erection and construction of said bridge.

The bill further charges that Leflore county and its board of supervisors, officially and individually, are liable to appellant for the amount of said material furnished to the contractor, by reason of the failure of the county and the board to require the execution of the bond required by chapter 217, Laws of 1918, and also charges that, in addition to the liability of the county and the board of supervisors, the United States Fidelity & Guaranty Company is also liable to appellant for the amount of material furnished by it because of the breach of the condition in the said bidder’s bond, and prays for a decree against all of the defendants or such of them as the court may find to be liable, and for general relief.

Each of the defendants demurred to the bill of complaint, the demurrers were sustained by the court, and complainant refusing to amend, the bill was dismissed, and from this decree this appeal was prosecuted.

The appellant in its bill of complaint seeks to fasten liability on the county and on the board of supervisors, individually, for the reason that the board neglected and failed to require the contractor to execute the formal construction bond as required by chapter 217, of the Laws of 1918; the provisions of this act being, in part, as follows:

“Any person entering into a formal contract with this state, any county thereof, municipality therein, or any political subdivision whatsoever therein, for the construction of any building or work or the doing' of repairs, shall be required before commencing same to execute the usual bond, with good and sufficient sureties, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying labor or material therefor; and any person who has furnished labor or materials . . > and where-for payment has not been made, shall have the right to intervene and be made a party to any action instituted on such bond, and to have their rights adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the obligee.” Section 1.

The first question that arises is whether or not a county is liable for the neglect or failure of its'officers to require a contractor who is engaged in construction work for such county to furnish a formal construction bond, with an additional obligation for the protection of persons furnishing labor or material to such contractor.

Counties are political subdivisions of the state, created for the purpose of discharging public duties, and it is settled by numerous decisions of this court that no suit can be maintained against a county for the negligence of its officers unless such liability is created by some statute, expressly or by necessary implication. In the case of Brabham v. Supervisors, 54 Miss. 363, 28 Am. Rep. 352, the court said:

“A county can have no liability except as authorized, expressly or by necessary implication, by some statute. Counties are political divisions of the state, created for convenience. They are not corporations with the right to sue and be sued as an incident to their being, but are g-wasi-corporations, invested by statutes with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute.”

In Redditt v. Wall (Miss.), 55 So. 45, 34 L. R. A. (N. S.) 152, the court held that: ‘ ‘ All the duty which a county owes to any member of the public is prescribed by statute, and all the liability which can be imposed upon it must be found in the same authority.”

In City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682, it was said that: “There can be no liability against either the state or a county unless it be expressly or impliedly created by statute.”

Again, in Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641, the court said: “In the absence of a valid statute imposing liability therefor, a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents, or employees.”

For the application of the same doctrine see, also, Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 36 L. E. A. 798, 60 Am. St. Rep. 516; Nugent et al. v. Board of Levee Commissioners, 58 Miss. 197; Harrison County v. Marione, 110 Miss. 592, 70 So. 702; Ayres v. Board of Trustees (Miss.), 98 So. 847.

Chapter 217 of the Laws of 1918, which requires any contractor engaged in construction work for a county to execute a formal construction bond, with an additional obligation for the protection of laborers and material-men, does not impose any liability on such county, either expressly or by necessary implication, for the negligence of its officers in failing to require such bond, and, since there is no other statute imposing such liability, it follows that the decree of the court below sustaining the demurrer of the county is correct.

The next question presented for decision is: Did the failure of the board of supervisors to take the bond required by chapter 217 of the Lqws of 1918 constitute such negligence on the part of the members of such board as to render them individually liable to the plaintiff for the value of material furnished the contractor?

The board of supervisors of a county is created by statute for special purposes, and it exercises only such powers as are conferred by statute, either expressly or by implication, and it is charged with the performance of such duties as are imposed by statute. In the discharge of the duties imposed upon the board the members thereof act in an official and not an individual capacity, and any neglect or failure in the exercise of its powers or discharge of its duties is the default of the board, and not of the individuals composing it, and they are not liable for such default unless made so by statute. Chapter 217, Laws of 1918, does not in terms impose any duty upon the members of the board as individuals, but only as officials representing the public, and it does not impose any individual liability for the defaults of the board in respect to the duties thereby imposed upon it.

In 22 R. C. L., p. 487, in discussing the question of the individual liability of a public officer for the wrongful acts of a corporate body of which he is a member, it is said:

“The rule, however, appears to be established that a public officer, who is a member of a corporate body upon which a duty rests, cannot be held liable for the neglect of duty of that body. If there be refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the official action of the board itself as an entity. ’ ’

In the case of Hydraulic Press Brick Co. v. School District, 79 Mo. App. 665, the court of appeals, in discussing a similar question, used the following language: “In the letting of the contract and in their failure to take the bond of the contractors, the directors did not act as individuals engaged in the enterprise of erecting a building but as a board of directors through which the school district manifested its will,” — and it was held that the individual directors were not individually liable.

In Bassett v. Fish, 75 N. Y. 303, the court said: “But it is not seen how a member of a corporate body, upon which body a duty rests, can be held individually liable for the neglect of its duty by that body. There is no duty upon him to act individually. TIis duty is as a corporator, and it is to.act in the corporation in the way prescribed for its action, and by the use of its powers and means. And if there is neglect to exert its powers or all its means, it is the neglect of the body and not of the individuals composing it.”

This language of the New York court was quoted with approval iu the case of Monnier v. Godbold, 116 La. 165, 40 So. 604, 5 L. R. A. (N. S.) 463, 7 Auu. Cas. 768, in which a similar question was under consideration. For an application of the same doctrine see, also, Blanchard v. Burns, 110 Ark. 515, 162 S. W. 63, 49 L. R. A. (N. S.) 1199.

In the absence of an express declaration of legislative intention to impose individual liability on the members of a board of supervisors for' the defaults of the board, we think it is clear that none exists, and that the demurrer filed on behalf of the members of the board was properly sustained.

The last question presented for decision, and the one raised by the demurrer of the United States Fidelity &■ Guaranty Company, surety on the bidder’s bond, is whether, by reason of the provision of chapter 217, Laws of 1918, requiring construction bonds to contain an obligation for the protection of laborers and materialmen, the surety on the bidder’s bond became liable to a materialman on account of the failure of the contractor to execute this bond.

Section 361, Code of 1906 (section 3734, Hemingway’s Code), provides that all contracts by boards of supervisors for any public work, where the amount of the contract shall exceed fifty dollars, shall be made upon public notice and proper advertisement, stating the work to be done, and inviting sealed proposals therefor, to be filed with the clerk, and that the board shall award the contract to the lowest bidder, who shall comply with the terms imposed by the board, and enter into bond with sufficient sureties, to be approved by the board, in such penalty as may he fixed by such board, but in no case to be less than the contract price, conditioned for the prompt, proper, and efficient performance of the contract. This is the “usual” bond referred to in chapter 217, Laws of 1918, and which by that act is required to contaiu “the additional obligation that such contractor shall promptly make payments to all persons supplying labor or material” for the work. There is no statutory requirement that the advertisement for bids for public work shall require a bond to accompany such bids when filed, and the bond executed by the appellee surety company and submitted with the successful contractor’s bid or proposal is not one required by statute. The bond was conditioned to guarantee that, in the event the contract should be awarded to the principal obligor, such principal would, within such time as might be fixed by the board, execute and enter into a formal contract, and furnish good and sufficient surety to secure the performance of the terms and conditions of the contract, and it is common knowledge that it is almost the universal custom, and a very wise one, to require some sort of security to guarantee the county against irresponsible bidders-, who might fail to qualify for the performance of the work, by entering into a formal contract'and furnishing the statutory performance bond. The bond is conditioned for the protection of the county, the sole obligee therein, and it is not for the benefit or protection of persons furnishing material to the contractor, who are not parties thereto and have no rights therein, either by the express terms of the obligation or by statutory enactment. The board of supervisors had the right, as was its duty, to have required the contractor to execute the performance contract and bond before it was permitted to begin the work, and upon the failure or refusal of the contractor so to do the county would have been entitled to recover of the bondsmen all loss or damage suffered by it by reason of such failure. The board of supervisors, however, permitted the contractor to enter upon the performance of the work without having executed either a formal contract or a bond for the satisfactory performance of the work, and it was completed according to the plans and specifications and to the entire satisfaction of the board. As to whether or not the county could have maintained an action upon this bond in the event it had suffered loss by reason of the contractor’s failure to satisfactorily complete the contract after being permitted to begin the work without complying with the preliminary statutory conditions, it is unnecessary to decide, but we think it is clear that laborers and materialmen, who were in no way parties to the bond, and whose only rights arise under the statutory bond provided for by chapter 217, Laws of 1918, cannot do so.

It follows from the views herein expressed that the decree of the court below must be affirmed.

Affirmed.