Howe v. State

| Miss. | Oct 15, 1876

Campbell, J.,

delivered the opinion of the court.

This is an action of covenant on the bond of A. R. Howe, as county treasurer of Panola County, to recover money illegally retained by him, and not delivered by him to his successor, at the expiration of his office. The defendants below pleaded performance of the condition of the bond sued on, and the Statute of Limitations of three years.. The latter plea was properly held bad on demurrer, and trial was had upon the issue joined on the plea of performance, and resulted in a verdict and judgment for the plaintiff below. On trial, the plaintiff, after reading in evidence the bond sued on, offered as evidence the different reports made by Howe as county treasurer to the board of supervisors during his term of office, and the orders of the board on those reports, from which evidence it appeared that Howe had retained, as commissions on moneys in his hands as county treasurer, a large sum of money, in excess of the compensation allowed him by law. This evidence was objected to by the defendants, but permitted to go to the jury. There was no just objection to this evidence, and it was properly admitted.

The defendants offered in evidence a report of Cooper and Hall, county attorneys to the board of supervisors, on the subject of the treasurer’s commissions, and an order of the board of supervisors on it; and, on objection, this was properly excluded. The defendant, Howe, testified that, at the time the commissions were allowed him by the board of supervisors, the matter was fully discussed and understood by the board.

The principal questions in the case are, whether the fact that the board of supervisors had approved the reports of Howe, as county treasurer, which distinctly show on their face the claim to excessive and illegal commissions, and thereby allowed to him this money, is a conclusive adjudication which protects him against the allegation of a breach of his bond; and whether, being a voluntary payment by the board of supervisors, the money so paid can be recovered back. There is no difficulty in answering the first question in the negative, and the other in the affirmative.

Howe’s duty as county treasurer, to secure the performance of which his bond was required, was, among other things, to deliver to his successor all money belonging to the county, at the expiration of his office. If he did not do this, the condition of his bond was broken. All money received by him as county treasurer, and not disbursed, agreeably to law, belonged to the county. Whether he had in his hands any money belonging to the county was á question to be determined by the facts as to his receipts and disbursements and the law applicable to such facts. The law required the county treasurer, at stated times, and at other times, as required by the board of supervisors, to make to such board ,a detailed report of all moneys received by him, and of the disbursement thereof, &c., and to bring all moneys belonging to the county treasury to the board of supervisors, to be counted by said board, and to exhibit, with his reports of receipts and disbursements, “ the vouchers for the disbursements charged therein ; and the board of supervisors shall carefully examine the same (i.e. the vouchers), and when the report shall have been approved, and such approval entered on the minutes, all warrants paid by the treasurer shall be stamped or otherwise marked cancelled, and shall be filed and preserved by the elerk.” The object of this is plain. The board is set as a watch upon the treasurer. The board is constituted the auditing office for the examination and approval of the reports of the county treasurer, with a view to secure the due performance of his duties in office, to receive and keep the moneys of the county, and to disburse the same agreeably to law; but it is nowhere declared that the approval by the board of supervisors of a manifestly illegal disbursement and misappropriation of the monejr of the county shall protect the treasurer from the just consequences of his illegal conduct. Nor does such effect pertain to an entry of such approval by the board of supervisors on the minutes from the nature of the functions of the board in receiving the report and examining the vouchers for the disbursements charged therein. The board of supervisors is the official agent of the .county to scrutinize the reports of the county treasurer, to discover if his statement of receipts is correct, and if his charges for disbursements are all supported by proper vouchers, and to count the money on hand to see if it is the true amount. All this is not to enable the board of supervisors to fix liability on the treasurer, by deciding any question against him as a court, or to discharge him by any judgment in his favor, but to guard the interests of the county, by causing proper legal proceedings against him for any breach of official duty. If the board should reject any voucher for any disbursement charged in the report of the county treasurer, he would not be concluded thereby in an action on his bond. No judgment could be rendered against the treasurer by the board. No judgment can be rendered in hjs favor, except an approval of his report; and that is no more than a declaration that the board is satisfied that the report shows all moneys received by the treasurer, and that his disbursements are sustained by proper vouchers; and the only effect of this is to cause the warrants paid by the treasurer to be cancelled, and the report to be recorded. The scheme is to have the board of supervisors to supervise the treasurer’s office, to insure faithful performance of duty by him, and to proceed against him, if necessary, according to law, to secure this result. The duties of the board are ministerial, and not judicial, in this respect. The board had no power to decide what commissions the county treasurer should have. The law fixed that at a certain rate per centum on receipts and disbursements. It was mere matter of calculation. That the board considered and decided that Howe was entitled to greater commissions than allowed by law, did not sanctify his wrong in claiming it, did not change the law, and did not make the money in his hands belonging to the county his money. The board of supervisors not having the power to transfer the money of the county in the hands of its treasurer to him, it follows that all of his receipts, not disbursed agreeably to law, remained the money of the county, and his failure, at the termination of his office, to pay it over to his successor was a failure of his duty, and a breach of his official bond.

A board of supervisors has no right to appropriate the money of the county to any object not authorized by law. Such appropriation is void. It confers no rights, and affords no protection to the person receiving it. It matters not whether its action in such matter be regarded as judicial, legislative, or ministerial. Excess of authority in either capacity is simply void. The boards of supervisors are invested with “ full jurisdiction over roads, ferries, and bridges', . . . and shall perform such other duties as shall be provided by law.” Constitution, art. 6, § 20. They can do valid acts, only as empowered by law. Armed with the power and. charged with the duty to audit and allow on due proof, in term time, all demands and accounts against the county, their judgments, within the limits of the law, have been treated as final and conclusive, as an evidence of the propriety of the allowance. But any appropriation of the money of the county to objects not authorized by law, any disregard of the law fixing the compensation of public officers, whereby a board of supervisors should audit and allow more than the law allows, and any pretended judgment by the board of supervisors, approving palpable illegality and fraud on the face of official reports, whereby extortion and misappropriation of the money of the county is sanctioned by such board, are of no avail to the party thus participating with the board of supervisors in defrauding the county.

There is but little support for the idea that examining and approving reports of a county treasurer is final and conclusive as the judgment of the board as a court, deciding on due proof of an account or demand presented as a claim against the county. The board had nothing to hear and decide as to the compensation of the county treasurer. That was fixed by law, and was a limitation as well upon the right of the treasurer to receive, as upon the power of the board of supervisors to sanction it. Boards of supervisors are constituted for the protection of the county, and not to swindle it. What they do in accordance with law is valid, and all beyond is void. They have no right to give away the money of the counties, or to appropriate it to any object not authorized by law, or to consent that an officer or other person shall have of the money of the county further than the law allows him. This results necessarily from the nature of the functions of the board of supervisors, and was expressly declared by § 11 of “ An Act in relation to boards of supervisor's,” approved June 3, 1870, the day when Howe gave the bond as county treasurer of Panola County sued on in this action. It follows from these views that Howe did not pay to his successor, at the expiration of his term of office, all the money in his hands as county treasurer; that the illegal action of himself, and the board of supervisors in approving his reports, did not exempt him from the obligation to deliver to his successor this money, and that the principle of voluntary payments being irrecoverable has no application to hinder a recovery of what was illegally withheld by Howe.

There is no force in the suggestion that the plaintiff’s demurrer to the plea of the Statute of Limitations should have been extended to the declaration, because it does not contain an averment that the action was ordered or authorized by the board of supervisors. Code, § 262.

We find no error in the record, and the judgment is affirmed.