Herbon Bank v. Lawrence County

69 So. 209 | Miss. | 1915

Cook, J.,

delivered the opinion of the court.

The appellant began this suit by petition to the circuit court, asking that the court by mandamus require the board of supervisors of Lawrence county to levy a special tax for the purpose of paying certain school warrants issued by the clerk of the board of supervisors of said county upon pay certificates duly attested by the superintendent of education, according to the provisions of section 4566, Code 1906, and other warrants issued by order of the board of supervisors.

We get from this record that the school warrants to pay the salaries of teachers in the public schools were regular on their face, but it appears that the fund provided by law for the payment of such warrants had been illegally used to pay outstanding warrants for previous years. In other words, it appears that when the warrants were issued there were funds on hand belonging to the school fund of that particular scholastic year for which the warrants were issued but there was a shortage in school funds for some previous year, and the funds then on hand were used to pay warrants for previous years. The other warrants mentioned in the petition were warrants issued by order of the board of supervisors to Newh'ebron separate school district, on account of its pro rata share of the poll tax collections, according to the provisions of section 4574, Code 1906.

The petition avers that the certificates and county warrants were regularly issued, but that there was no money in the county treasury out of which the county could pay the indebtedness. The petition also avers that the holder of the indebtedness had presented the claims to the board of supervisors for payment, but the board refused to make provisions for the payment of same. A demurrer to the petition was sustained, and petitioner appeals.

As we understand the record, it seems to be the contention of appellee that inasmuch as the petition shows that the funds provided by law for the payment of these claims had been illegally used by the officers in charge of same, the remedy of appellant is plain and adequate against the officers and the sureties on their bond, and for this reason, if for no other, the lower court properly sustained the demurrer. We do not think this contention is sound. Appellant has a claim against the county, and the county is not released from its obligation to pay its indebtedness because the administrative officers of the county violated the law.

There were many grounds of demurrer, but we will only consider the grounds argued in the briefs. The record clearly shows that appellant holds a valid claim against the county, and is unable to collect same by any means known to the law, unless the courts will compel the board of supervisors to levy a tax to pay same.

Section 4566 authorized the issuance of warrants by the clerk of the board of supervisors upon the pay certificate of the superintendent of education, and without an order from the board of supervisors. The board of supervisors have nothing to do with these certificates, or warrants, and are never called on to deal with same until they become “outstanding” — “unpaid claims.”

The lawmakers anticipating that some of the counties might fall behind in the payment of school warrants, passed section 4627, Code 1906. This section covers and controls the case made by the record. If the unpaid claims are just, the board of supervisors may either take up and cancel the warrant and issue in lieu thereof a warrant on any county funds in the treasury, or in case there be no funds in the treasury a special levy may be made to pay same.

The hoard of supervisors contends that this section of the Code confers upon the board the discretion to allow or disallow the unpaid claims. We do not so read the law. If the claims are just and owing, the board has the discretion as to how the claims may be'paid, but no discretion as to whether they will be paid, or not. The statute provides a means by which boards of supervisors may pay the debts of the county, and by one of the means the board must pay. The opinion of this court in response to the suggestion of error in the case of Town of Carrollton v. Town of North Carrollton, recently rendered, and reported in 69 So. 179, is directly in point here. We think that section 4627, Code 1906, is peremptory, although the words employed are permissive in form.

If it be contended that the warrants issued by the board of supervisors to the separate school district are not such school warrants as are contemplated by section 4627, Code 1906, the allowance of these claims carried with it the obligation to provide funds to pay them, and mandamus is the proper and only remedy to compel the performance of the obligation. Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210. Obligations arising out of public acts and relations are enforced by mandamus, and with regard to the payment of the acknowledged indebtedness ‘represented by the warrants issued on the order of the board of supervisors no other remedy is adequate or appropriate.

The judgment of the circuit court is reversed, and the cause remanded for further proceedings.

Reversed and remanded.