Paxton v. Baum

59 Miss. 531 | Miss. | 1882

Campbell, J.,

delivered the opinion of the court.

The act approved April 4, 1876 (Acts 1876, p. 46), requiring members of the board of supervisors to give bonds, intended to furnish a security to the public for the faithful performance of duty in the important matters confided to them ; and as § 1386 of the Code of 1871 made them personally liable for money appropriated to any object not authorized by law, and authorized suit to be brought therefor, for the use of the county, by any tax payer, such suit was authorized to be instituted on the bond required as a security for the responsibility of the principal obligor.

The jurisdiction over “roads, ferries and bridges,” conferred on boards of supervisors by the Constitution, is subject to regulation as to the manner of its exercise by the legislature, and must be exercised in conformity to law. Supervisors v. Arrighi, 54 Miss. 668.

By § 1878 of the Code of 1871, it was provided that “ the boards of supervisors shall direct the appropriation of the money that may come into the treasury of their respective counties, but shall not appropriate the same to any object not authorized by law,” and by § 1386 members were made liable personally for such sum of money as the board should appropriate “ to any object not authorized by law.” The question is as to the interpretation of the expression “ object not authorized by law.” The objects to which money in the county treasury may be appropriated are designated by law, and it is not legally appropriable to any other purposes. If it is appropriated by the board of supervisors to some other object than is authorized by law, members are liable personally for it, unless they voted against such appropriation. It is for money appropriated to something for which the law does not permit it to be appropriated at all, in any way or under any circumstances, that members are personally liable. It is for a diversion of money from its legitimate objects, and not for appropriation to a proper object, although in an irregular or unauthorized manner, that liability is imposed on members personally. It is what the money is appropriated to, and not how it is applied, that furnishes the test of personal liability for it. “ Object ” signifies the thing aimed at, the end sought to be accomplished. If this is not the true interpretation of the language mentioned, members of the boards of supervisors would be liable personally for every mistake or error of judgment or of information as to facts whereby money was appropriated even to proper objects, if not appropriated in strict accordance with law as to every circumstance attending it. Either members of the boards of supervisors are personally liable for every appropriation not made in strict conformity to law, or they are not liable except for a diversion of public money from authorized objects and its appropriation to such as are not authorized. The objects to which the boards may appropriate money are designated by law, and may be known to them ; and, in all cases of doubt, they may resolve the doubt against the appropriation, and avoid risk of liability ; and it may be supposed that for appropriations to objects not authorized by law, it was intended to make members of the boards of supervisors personally liable. But, in view of the well-settled rule of the common law that for errors or mistakes a public officer acting judicially or quasi judicially is not liable, it could not have been the purpose of the legislature to make members of boards of supervisors personally liable for errors or mistakes as to how to act in matters committed to such boards by law, and as to objects for which an appropriation of money is authorized to be made by them. It is when they disregard the law as to the objects to which it has devoted the public money, and divert it to some object to which the law has not devoted it, that personal liability attaches. Judgment reversed.

Suggestions of error were then filed by T. G. Oatchings, H. G. McCabe, and Warren Cowan, for the appellants,

accompanied by written arguments.

Mr. Catchings maintained that, if the meaning of the opinion is that supervisors are never liable for their appropriations to a legitimate object, no matter how fraudulently or corruptly they proceed in violation of law, it can not be sustained either under Code 1871, § 1386 and Acts 1876, p. 46 (c. 53), or under the latter statute considered with reference to the condition of the bond and § 1752 of the Code; that contracts of boards of supervisors for legitimate objects are often void (Supervisors v. Arrighi, 54 Miss. 668), and the appropriation of money to pay for work done under such void contracts renders the members liable on their bonds ; that the condition of the bond is broad enough to cover every breach of duty, whether of omission or of commission, and the same remedies may be had upon it as on other official bonds ; that the liaability imposed by Code 1871, § 1386, may be enforced by the remedy of tax-payers under § 1752, or a similar remedy given by the Act of 1876, which provides that the remedies on this bond “ shall be the same as on other official bonds; ” that not only is the personal liability of supervisors for illegal appropriations, which, under Code 1871, § 1386, may be enforced at suit of a tax-payer, extended by the Act of 1876 so as to include their bonds; but also that Code 1871, § 1752, affords a remedy to tax-payers upon the bonds of countjr officers, suitable and reasonable in its applicability to the bond of a supervisor, and that this remedy can be availed of to recover sums lost to the county, “ from the failure or neglect of ” this supervisor, by suit upon his bond, which is conditioned in accordance with Acts 1876, p. 46, “as the bonds of other county officers.”

Mr. Cowan contended that the liability of a member of the board of supervisors on his official bond is co-extensive with the liabilities of other officers on their official bonds (Acts 1871, p. 46) ; that the special liability imposed by Code 1871, § 1386, is in addition to all the other kinds of liabilities imposed by the statutory official bond of a supervisor; that his bond is a security against injury or damage accruing from any breach thereof to any person, the county included; and that whenever the appropriation of county money is made in such an illegal manner as to render it void, or whenever it is made to pay a void obligation or carry out a void contract, it is an appropriation to an object not authorized by law, and the member is liable for it on his official bond.

Mr. MeQdbe argued the same points, and also claimed that the decision in the case of Supervisors v. Arrighi, 54 Miss., 668, and in the case under consideration, are not consistent with each other. The result of the two decisions, when taken together, amounts to this: that while the legislature has the power to regulate boards of supervisors as to the manner of exercising the jurisdiction over roads, ferries, and bridges, conferred on them by the Constitution, the board may, nevertheless, with perfect impunity to themselves, disregard the rules and regulations prescribed, and set them at naught. The effect of the latter opinion is therefore to nullify the former, especially that portion of it which is of any virtue; viz., and the board “ are bound to exercise the jurisdiction in conformity to the law.”

Chalmers, C. J.,

delivered the opinion of the court.

We respond to the three principal points made by the suggestions of error.

1. It is said that our opinion relieves supervisors from liability where the appropriation made is within their jurisdiction, though it be corruptly made by them. No such question is before us. There is no allegation of corruption in the declaration. Judicial officers of all grades are liable for their corrupt judgments. Whether the sureties on the bonds of supervisors are, it will be time enough to decide when the case is before us. Certainly they would- be liable for all money illegally voted by the members to themselves, since no officer can claim to be acting as a judge in voting money to himself.

2. It is said that the bonds required of and given by supervisors are as broad in their terms as those exacted of other county officers, and should cover to the same extent every default of duty, whether of commission or of omission. But we cannot ignore the fact that supervisors, in the discharge of many of their functions, are judicial officers, and especially so in adjudicating upon the validity of claims against the county. A law which would make them personally liable for every erroneous judgment rendered, if constitutional, would certainly have the effect of preventing any solvent man from accepting the office, or of becoming the surety of those who did.

3. It is said that our opinion contravenes the doctrine laid down in Supervisors v. Arrighi, 54 Miss. 668, that a warrant issued in payment of a contract illegally made was a nullity, imposing no liability upon the county, and incapable of being-ratified by the board of supervisors. There is not the slightest conflict between that case and our opinion in the present one. The question there was, Whether payment of such a warrant could be enforced against the county ? The question here is, Whether the members of the board can be made personally responsible for having- issued it ? The building of a bridge or a court-house has been let out, we will say, after nineteen days advertisement, instead of twenty, as required by law; or the notice has been posted in three public places, instead of six; or no notice of the letting out has been given at all, but it takes place at an adjourned meeting, in open session, or in vacation by a committee appointed for the purpose. Is it not enough that, though the county gets the work, it cannot be compelled to pay for it? If some subsequent board, in ignorance of the facts or through mistake of the law applicable to the facts, issues a warrant in payment of the work, which warrant cannot be by law collected, shall the members of the board also be made personally liable for having issued it ? Where is the line, and what is the limit of this personal responsibility ? Shall we say that it exists if the letting out of the contract has not been advertised at all, but does not arise if there has been an advertisement for ten or fifteen days ? Shall we make the members liable if the contract was made in vacation, but not liable if made in open session at an adjourned meeting, which they had no authority of law to hold ? Shall we give judgment against them if the obligation was contracted at the wrong place, and acquit them if the place was right, but the time wrong ? Manifestly it is impossible, after • we pass the point of corruption, to draw any line other than that laid down by us, namely, liability where the subject-matter of the appropriation is beyond the jurisdiction of the board; non-liability where the object is within the jurisdiction, but there has been a mistaken exercise of legal power. Within this limit, every case must depend upon its own facts.