83 So. 741 | Miss. | 1920
delivered the opinion of the court.
The appellant was indicted for knowingly voting for the payment of an alleged unauthorized claim while a member of the board of supervisors of Tippah county under section 344, Code of 1906, section 3717, Hemingway’s Code. The indictment practically follows the language of this section of the Code. At the conclusion of the introduction of the testimony for the state, the defendant made a motion to exclude same and for the court to instruct the jury to find the defendant not guilty because the indictment charged no offense and the proof in the case did not show that the defendant was guilty of any offense. This motion was overruled, and the defendant excepted to the action of the court. At the conclusion of the testimony introduced by the defendant this motion was again renewed and overruled by the court. The jury found the defendant guilty, and he was sentenced to pay a fine by the court from which judgment this appeal is prosecuted.
It is strenously insisted upon this appeal that the indictment charges no offense that the use of the word “knowingly” in the indictment is not sufficient, but that the indictment should have also charged that the defendant fraudulently and corruptly voted for the payment of the alleged unauthorized claim.
It is unnecessary for us to decide as to the sufficiency of the indictment because the case must be reversed upon the facts. The gist of the testimony for the state is to the effect that the claim was unauthorized because the road contractor, in whose favor the claim was made, had not worked the roads in accordance with the
Without narrating in detail the testimony of the state' suffice it to say that several witnesses testified that at the time his claim was voted and paid the road had not been worked hy the contractor in accordance with the plans and specifications; that in some places it was too narrow; that the ditches were not properly cleaned out and the bridges had not all been repaired; that the road was rough and there were some holes in it. On the plans and specifications under which the roads here in question were let to the contractor was the proviso that the roads were to be fourteen and sixteen feet in width, unless considered impractiable by the supervisor. The uneontradieted testimony in the case shows that, before this claim was allowed by the hoard the contractor had about five days on it; that this was during very dry weather, and it was very hard to work the road at that time. The defendant testified that before the claim was allowed, as it was his duty to do, he inspected this road, and that he approved the work done hy the contractor. He was then asked this question:
*578 “Did you in your judgment think that it was good enough to warrant you to issue that warrant? A. Yes, sir; I knew that the road -was not according to the contract and he must come back as soon as the ground got in order to make it wider.
“Q. How many places was that road narrow? A. I don’t recollect. The ground was so hard that he could not work it. He came back in May and made it wider.
“Q. 'With reference to the bridges and the holes in the road? A. Bedding the road up it made it dry and hard and made the bumps, and I told him to wait until it rained and then grade it. I told him it was going to be rough till the clods were broken up and it had been traveled on. That is why the road was rough because it was very hard and dry. Last March it did not rain any, and- the road was dry and hard. The place where they spoke of there it was impracticable to make it wide enough, and it was so hard that it was_ killing his mules to do that. It was made wider after that.”
There was no testimony whatever introduced from which the jury would have been justified in believing that the defendant in voting for the claim did so fraudulently or corruptly or through any bad faith. The testimony, taken- most strongly for the state, only shows that the defendant in knowingly voting for this claim either did so through error or mistake of judgment. There is no testimony to show that the defendant in voting for the claim acted dishonestly. In fact', the testimony shows that he believed the board of supervisors had the power to pay this claim at that time. He was acting judicially.
In the case of Paxton v. Baum, 59 Miss. 531, in the opinion in chief on page 537 this court said:
“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*579 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.”
Again on page 539 in the opinion in response to the suggestion of error it is stated:
“Judicial officers of all grades are liable for their corrupt judgments. . . . 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, woufd certainly have the effect of preventing any solvent man from accepting the office, or of becoming the surety of those who did.”
And more especially is this true if they are criminally liable for mistakes or errors of judgment in matters within their jurisdiction. This opinion concludes as follows:
“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; nonliability 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.”
In the case of State v. Green, 111 Miss. 32, 71 So. 171, Green as county superintendent of education and the surety on his bond were sued in the chancery court for failure of this officer to perform certain duties of his office. A demurrer was sustained and the bill dismissed. In affirming, the decree of the lower court, on page 35
“But for errors of judgment and discretion, in the absence of fraud, he is not liable on his official bond or otherwise.”
The opinion concludes as follows: “In view of the fact, therefore, that the work paid for by the superintendent and the several alleged irregularities were within the jurisdiction of his office and no corruption is charged, the bill fails to state a cause of action.”
The working of the public roads is peculiarly within the jurisdiction of the board of supervisors, and in voting for the payment of this claim the defendant could only be criminally liable for fraudulently or corruptly voting for an unauthorized claim. The proof in this case fails to show that his conduct was either fraudulent or corrupt. The court erred in not instructing the jury to find the defendant not guilty.
The judgment of the lower court is reversed, and the defendant discharged.
Reversed, and defendant discharged.
