78 So. 781 | Miss. | 1918
delivered the opinion of the court.
E. M. Bufkin was the owner of a colt in George county, and carried the colt to a dipping vat in said county to be dipped, and in the process of dipping the colt slipped and fell, and injured itself in such manner that it- died during the day. Bufkin presented a claim for sixty dollars to the board of supervisors of George county in the spring of 1917. The board heard and allowed the claim to the amount of forty dollars. There was no appeal undertaken, and under the law as it then existed none would lie, because the amount of allowance under' the law in force at that time was entirely discretionary with the board. Bufkin, however, some months after the account was allowed by the
We held in the case of Horton v. Lincoln County, 77 So. 796, that there was no liability against the county for injuries to stock in dipping, but that the act then m force (prior to the enactment of chapter 38 of the Laws of the Special Session of 1917), being chapter 222 of the Laws of 1914 (section 3806 and section 3807 of Hemingway’s. Code), that such statute was a mere enabling statute, empowering the board of supervisors in their discretion to make an allowance for injuries in such sum as in their judgment was right and proper under the circumstances. This action originated prior to the passage of chapter 38, Laws Sp. Sess. of 1917, and prior to the enactment of such statute the plaintiff had presented his claim to the board under chapter 222 of the Laws of 1914, and had been allowed.
“A person having a just claim against any county shall first present the same to the board of supervisors for allowance, and if the board shall refuse to allow it may appeal from the judgment of the board to the circuit court, or may bring suit against the county, and in either case if such person recover judgment the board of supervisors shall allow the same and a warrant shall issue therefor.”
The board did not refuse to allow the plaintiff’s claim in the present case, but did not allow it in full. The judgment of the board is a judgment against the county for the amount of forty dollars, and, inasmuch as it was not appealed from, is final and binding upon the county. .It follows from the above that the plaintiff had no right to sue the county when this suit was instituted, and that the judgment of the court in rendering the judgment against the county under the facts in this case was error. The appellee may apply to the board of supervisors, or the clerk thereof, and obtain a warrant for the forty dollarsbut he had no standing in court on the. record in this case, and the judgment of the court will be reversed, and the cause dismissed.
We do not deem it necessary to decide in this case whether it was within the power of the legislature, by the mere enactment of a statute, to create a liability against a county, when the acts upon which liability is attempted to be founded took place or occurred prior to the passage of the law. This question is argued, and presents a constitutional question, upon which we would desire more argument, and deem it unnecessary in this case to pass upon the question.
B,eversed ancl dismissed.