229 F. 593 | 5th Cir. | 1916
(after stating the facts as above).
The act of the Legislature of Mississippi, authorizing the creation of road districts and the appointment of road commissioners for them, was approved March 3, 1910, and is known as chapter 149 of the Laws.of Mississippi of 1910. It was amended by an act approved March 11, 1912, and known as “chapter 145 of the Laws of Mississippi of 1912.” The record shows that district No. 1, Lauderdale
We have reached the'conclusion that the suit was properly instituted against the county of Lauderdale as defendant. The title of the original act, viz., “An act authorizing the board of supervisors to construct and maintain public roads in any one or more supervisors’ districts of the various counties of the state; to issue bonds and levy taxes for that purpose; and providing for the manner in which said roads shall be constructed and maintained; and how bonds shall be issued and taxes levied for that purpose,” clearly indicates that the board of supervisors of the counties, and not the road commissioners of the districts, were regarded by the Legislature as the body intrusted with the ultimate duty of road construction and maintenance in the districts created by if. The caption of section 1 of the act is also persuasive of the idea that the Legislature intended to place on the supervisors, as representing their counties, the duty of road construction, and the caption of this section in the amended act is consistent with this idea. The former is “Board of Supervisors Authorized to Construct Highways and Provide Funds Therefor;” that of the amended act, “Public Highways — How Counties may Construct the Same.” The section itself imposes the duty of the construction. and maintenance- of highways, and the issuance and sale of bonds therefor, and the levy of taxes to pay the bonds issued, and to maintain the roads constructed, on the supervisors of the county. Section 5 provides for the appointment of road commissioners by the county board of supervisors and their duties. Their duties are defined to be:
“To have the management and supervision of the construction and maintenance of the roads built under the provisions of this act, subject to the approval of the board of supervisors; and for their services shall be paid their actual expenses, not exceeding fifty dollars each, per annum; and it shall be the duty of such commissioners, subject to the approval of the board of supervisors, to determine and fix what road or roads shall be constructed and maintained in such district or districts out of the proceeds of the sale of such bonds and the levy of such taxes; and it shall be their duty to let all contracts for the construction and maintenance of such roads in the manner now provided by law-for the letting of contracts for public work by the board of supervisors; and it shall be their duty to employ a competent engineer to survey and lay out such road or roads in such district or districts, as they shall determine upon.”
The section then proceeds to define the duties of the engineer so selected and to provide that his estimate and survey shall be adopted or rejected by the commissioners, and their action spread upon their minutes, and that all acts done by the commissioners shall be subject to ratification or rejection by the board of supervisors.
The character of the duties imposed on tire commissioner, and the requirement that in the performance of them they are subject to the approval of the supervisors, clearly demonstrates that the purpose of the Legislature was merely to create a subordinate administrative agency to relieve the supervisors of the direct management and supervision of road construction and maintenance in the road
The bonds are expressly required by the act to be executed by the president of the board of supervisors, and countersigned by the clerk of that board, and to bear the impress of the seal of the county. They are the bonds of the county, though issued for the account of a particular road district, the property in which is primarily liable for their payment. The county, however, is the obligor, and would be the proper party defendant in an action to enforce them. It is true that the proceeds of bonds sold and the taxes levied are directed to be kept as a separate fund by the county treasurer, whose bond is made liable for their safe-keeping; but this is made necessary, since the bonds are payable primarily out of the fund derived from taxes collected on the property in each road district, and the proceeds of the bonds are to be used exclusively for the construction of roads in that district. That there is not an entire separation of the administration of the district roads from that of the county roads appears from section 6 of the act. It provides;
“That the public highway or highways, so surveyed and adopted by such commissioners, shall be constructed and maintained out of the proceeds of such bonds; proceeds of such bonds to be used alone in their construction; and the board of supervisors shall levy an annual tax on the recommendation of such commissioners on all the taxable property in such district or districts of not exceeding one mill on the dollar, which shall he used to supplement the general road fund of the county in maintaining said road or roads and the culverts, bridges and levees thereon.”
That the Legislature of Mississippi intended to divest the county, through its supervisors, of jurisdiction over all roads in the various districts, is unlikely in view of the probable conflict of such an attempt with section 170 of the Constitution of the state, which provides that llie board of supervisors shall represent the county in the management of its affairs, and have full jurisdiction over the roads of said county.
Looking at the language of the act, and the purpose to be subserved, and the constitutional provision necessarily considered by the Leg
The case of Meath v. Phillips County, 108 U. S. 553, 2 Sup. Ct. 869, 27 L. Ed. 819, is different in its facts from this case. In that case levee districts were created by the Legislature out of lands in' different counties for the purpose of reclaiming the lands in such districts and of taxing the lands in the districts created to provide for the expense incurred. The act provided for levee inspectors and a treasurer, officers independent of any county organization. The levee districts might comprise lands in more than one county, and hence were not mere subdivisions of the county territorially, and could not be considered such for administrative purposes. The unit created was more extensive than the county, and so could not be a political subdivision of it. The county courts and the sheriffs were required by the act to perform certain services for the levee district, in the doing of which the Supreme Court held they acted as the representatives of the district, and not of the county. The conclusion reached was that the districts used the machinery of the counties already in existence for district purposes, and that the counties were not thereby involved. The Supreme Court in its opinion, distinguishing that case from the cases of County of Cass v. Johnston, 95 U. S. 360, 24 L. Ed. 416, and Davenport v. Dodge County, 105 U. S. 237, 26 L. Ed. 1018, as presenting entirely different facts, say (108 U. S. at page 555, 2 Sup. Ct. at page 870 [27 L. Ed. 819]):
“In the case of the County of Cass, the law provided in terms for an issue of bonds in the name of the county, and in that¿ of Davenport we construed the law to be in effect the same. Consequently there were in those cases obligations of the counties, payable out of special funds. Here, however, there was a manifest intention to bind the levee districts only by the obligations incurred, and not tornake the county, in its political capacity, responsible for the payment of the debts that were created for levee purposes under these laws. The machinery of the county was to be used in the levy and collection of the special taxes required, but the county, as a county, was to be in no way involved.”
In this case the act imposes on the county the duty of building the roads, and makes the bonds issued therefor the obligations ofr the county, .and merely creates additional county machinery, in the road commissioners distributed, among the various districts, for convenience of administration. As the use of the machinery of the county by the levee districts in the Cass and Davenport Cases was held not to involve the county, so the creation of additional machinery by the Legislature for the use of the county, in performing its constitutional functions with relation to public roads, should not be held- to release the county from liability, where it would otherwise have been so.
“They all proceed upon the idea that the Legislature has undertaken to create taxing districts or corporations with powers of taxation, or to carve out of a supervisor’s district a separate and distinct taxing district, with indefinite powers. The vice of this conception is made apparent by a mere reading of the law. The bill is drawn with due regard to the plenary jurisdiction over roads vested in boards of supervisors by section 170 of the state Constitution, and this thought runs through every word and phrase of the act. The exercise of the powers given by the act and the carrying out of the scheme is placed where it belongs, in the control and under the jurisdiction of boards of supervisors. The methods for the construction and maintenance of public roads, and the means through which the funds necessary to this end may be obtained, is a proper subject of legislation, and are without objection, unless they in terms or by necessary implication take away from boards of supervisors the powers conferred by the Constitution. Nothing can be found in the act justifying the inference that the Legislature was undertaking to confer upon a separate taxing district, or corporate entity, jurisdiction over public roads, or the power to levy taxes upon persons or property.- For convenience, and in order to identify the property to be assessed for the purpose of securing funds to liquidate the bonds to he issued, the act provides that boards of supervisors will issue the bonds of the district, upon which special benefits are conferred. The district gets the benefit of the general plan for working roads, and something more, and this something more is the thing the district is required to pay.”
“Progress of World and Forfeiture of Oontraet. — Tlie good roads commission reserves the right to declare the contract forfeited, if at any time it should appear to the engineer that the work or any part thereof is being unnecessarily delayed or that the contractor is willfully violating any of the conditions of the contract, or is executing the same in bad faith. Under such conditions the contractor will be notified in writing to discontinue the work, and all money due him, as well as his bond, will be held to protect the county from any loss in the completion of the work.”
This is the only provision of the contract which gives a special effect to the opinion of the engineer on this subject-matter. It confers on the good roads commission the right to forfeit the contract, upon report to them by the engineer that it appears to him, either (a) that the work or part of it is being unnecessarily delayed, or (b) that the contract is being willfully violated or is being executed in bad faith. In all other cases the rights and remedies of the county for a breach or contemplated breach of the contract by the contractor are unchanged from the common law. The plaintiff in error, in order to avail of the special effect given the engineer’s opinion by the contract, must bring itself clearly within the terms of the provision and act strictly in accord with the remedy there provided. It is conceded that to give the engineer’s opinion conclusive effect, even in the absence of fraud or bad faith on his part, the contract must provide either in express terms or by necessary implication (if that is sufficient) that it shall be final or conclusive. It has no such weight, in the absence of such an express or necessarily implied provision in the contract, and the remedy, then given, must be strictly pursued. By the terms of the provision of the contract relied upon by plaintiff in error, the report of the engineer as to what appeared to him only gave the good roads commission “the right to declare the contract forfeited.” If they did not declare the
The inquiry then presents itself as to whether the good roads commission did forfeit or declare forfeited the defendant in error’s contract with it. This is to be determined by what took place in their meeting of December 27, 1913, and by the resolution spread upon their minutes, and a copy of which was sent to defendant in error. The resolution was in these words:
“Therefore, be it resolved by said good roads commission in pursuance of the terms of said contract and the specifications, which are made a part thereof, that notice bo given forthwith to the said contractor and the United States Fidelity & Guaranty Company, surety on the contractor’s bond, that said contractor discontinue work, and that unless said surety shall forthwith take charge of said work, and undertake the performance of said contract, and so advise this commission, then the said good roads commission will forthwith forfeit the said contract, and will contract with other parties for the performance of the said contract, and will hold the said contractor and the said surety for any loss or damage incurred by their failure to perform said contract. Be it further resolved, that a copy of this resolution be delivered forthwith to said contractor and said surety.”
This resolution was afterwards approved by the county hoard of supervisors. A copy of it was sent defendant in error and his surety. Thereupon his corporate surety undertook to complete the contract, and did in fact do so, the defendant.in error protesting. Does this constitute a forfeiture of the contract? The defendant in error was required, when he entered into the original contract, to execute a bond with surety for its faithful performance. The bond contained this provision:
“Provided, however, that the surety shall, at its option, have the right, upon default of said contractor, to complete the work, and shall be entitled to such benefits and emoluments as may then be due the contractor.”
The contract, as between the county and defendant in error, gave the former the immediate right to forfeit it, when it appeared to the engineer that the work was being unnecessarily delayed. The bond, however, provided that the surety should have an option to take over the contract and complete the work, when the contractor was in default. ]f the county had exercised its right to forfeit the contract, without giving the surety the option to complete the work under it, the surety would have been released. It was not the purpose of the county to release the surety, and it was not its purpose to forfeit the contract, since to do so- would have had that effect. Its purpose was, as expressed in the language of the resolution, to declare the contractor in default and notify the surety to exercise its option to take over and complete the contract, and only to forfeit the contract in the event and after the surety had declined to exercise the option.
A forfeiture would have the effect to terminate the contract, and leave the parties only with a right to sue for its breach. To call upon the surety to complete the contract on behalf of its principal and for its own protection, while the effect might be equally disastrous to the
The resolution did not declare a forfeiture, but only threatened to do so, in the event the surety did not exercise its option to complete the contract. The surety did exercise that option, and the occasion for the declaration of the forfeiture did not arise.
A forfeiture never having been declared by the road commissioners or county supervisors, the' provision relied upon by the plaintiff in error, giving final and conclusive effect to the opinion of the engineer, to the effect that the work was unnecessarily delayed, had no appropriate place in the decision of the cause. If the road commissioners had forfeited the contract, without calling in the surety to complete it, or if the surety, having been called upon, had declined to take it over, and the road commissioners had then declared it forfeited, and relet the work to other parties, their action, under the provisions relied upon, would have been justified, if it had appeared to the engineer that the work was unnecessarily delayed, though in fact it was not so, provided the engineer acted without fraud and without bad faith. But this was not what the road commissioners in fact did. On the contrary, they purposely refrained from declaring the contract forfeited, but accomplished its performance by notifying the surety to perform and by its agreeing to perform and in fact fully performing the contract of its principal. The contract did not provide that the opinion of the engineer, even when entertained in good faith, was to be final and conclusive, and a protection to the county in ordering the defendant in error to discontinue work, unless the county also elected to forfeit the contract. The language of the contract, in terms, restricts the application of this clause to the case of a declaration of a forfeiture, and it is not within tire power of the court to enlarge or extend its application to a case not provided for by the parties.
The engineer’s opinion is final, only when made so by the express or necessarily implied agreement of the parties, deduced from tire language of their contract. As in this case the evidence without dispute ¿hows the contract was never forfeited, and as the engineer’s opinion was made final only in case of a declaration of forfeiture, we conclude that the only issue presented to the jury was whether the work had been in fact so unnecessarily delajred by the contractor at the time he was notified to discontinue work, as that it could not reasonably have been completed within the stipulated 500 working days.
We find no error in the record that was prejudicial to the plaintiff in error and would justify a reversal of the case, and the judgment is affirmed.