53 Miss. 57 | Miss. | 1876
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
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
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
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.