Board of Supervisors v. Jones

60 So. 655 | Miss. | 1912

Cook, J.,

delivered the opinion of the court.

The board of supervisors of DeSoto county had adopted the contract system for the working and repair of the public roads of the county. In addition to the regular contracts, the board entered into a contract with appellee Jones’ assignor to grade, construct, and gravel three specific pieces of road, aggregating about six miles.

The contractor, it is charged, abandoned his contract after having been paid something like eighty-five per cent of the contract price, and the board was compelled to complete the contract, and now sues the contractor for breach of contract.

There was much pleading and repleading, but, as the essential point in the case may be decided without reference to the pleading precedent to the final judgment of the court sustaining the demurrer to the count declaring upon the breach of contract, we think it necessary to say only this: The lower court was correct in holding that appellant should elect upon which count it would proceed.

A count against one of the parties to a lawsuit cannot be joined with a count against this party and other parties not liable under the first count. The contention of appellee is clean cut, and, when decided, disposes of the case before us. The demurrer puts in issue the validity of the contract made by the hoard of supervisors, and claims that, the contract being ultra vires, no right of action exists for its breach. In the solution of this question are involved sections 4414, 4441, and 4465 of the Code of 1906, as well as the plenary jurisdiction of boards of supervisors over roads, ferries, and bridges. Section 4414 gives to hoards of supervisors in counties not working the roads under the contract system the power to do certain kinds of work by contract upon “especially bad places on the public roads. ’ ’ Sections 4441 and 4465 are substantially the same (so far as the point here involved may he affected), and, after providing for contracts for working the separate roads, the duration of the contracts, and the execution of bonds by contractors, there is added to both sections this clause: “But the board may make a contract for doing specific work, such as cutting down a hill, making a causeway over a marsh, or swamp, and the like.” We have said that section 4414 was involved in the construction of the present contract, because it is said that the language employed may serve as interpretative of the scheme worked out by legislation.

It is the position of appellees, if we correctly understand their briefs, that the powers given by the statute to hoards of supervisors must be strictly construed and as limitations upon their powers. It is contended that the last clause of sections 4441 and 4465 was intended to restrict the power of the board to make special contracts for specific work within exceedingly narrow limits, and that, if the hoard oversteps the hounds, its contracts are null- and void and cannot be enforced.

It is, of course, well settled that the legislature may prescribe the methods for the exercise of the constitutional jurisdiction of boards of supervisors, and it may be that the legislative department of the government at times seems to doubt the ability of boards of supervisors to do anything at all in the absence of elaborately worked out rules and regulations. However, this may be, we do not deem it our duty to hedge the board about, impugn its intelligence, and destroy its efficiency by limiting its power to provide for specific conditions, unless it appears that they have manifestly ignored and overridden the statute. Something must be left to the discretion of the board, and when they have decided, as in this case, that there are certain roads or stretches of roads which with due regard for economy and to the public service cannot be worked under the general contract system, we must assume that there is a real public necessity for their action. It is easily conceivable that it may be important and necessary to do certain work of a specific nature over many miles of roads which could not be done by contractors usually performing work under the general contract and repair system, confined within narrow limits, which system we feel justified in saying is a makeshift at best.

On the face of the present contract, we cannot assume that the board exceeded its authority; on the contrary, we assume that it was within its powers, in the absence of clear proof to the contrary. The willingness of property owners to be served by the roads contracted for to suffer a special assessment in aid of the enterprise seems to justify the inference that here was an exception to the general rule requiring a different sort of treatment under- a special contract which was sensed by the legislature, or, at any rate, should have been foreseen, and there is nothing in the law prohibiting this kind of a contract, hut there is enough to warrant us in holding that the contract was authorized, and therefore enforceable.

Reversed and remanded.