Weston v. Hancock County

| Miss. | Oct 15, 1910

Lead Opinion

Mayes, C. J.,

delivered the opinion of the court.

On Motion to Advance.

This case seems to involve the validity of a bond issue made by the county of Hancock in the Southern Supreme Court district, which is now on call before the court. A motion is made to advance this cause, as a preference case, under section 4907 of the Code of 1906. As we are now on the call of the docket for the Southern district, the district to which this case belongs, and since the case is one of public importance to the county from which it comes, without deciding whether the case falls within the above provision of the Code as a preference case, we sustain the motion and advance the cause. It is the rule of this court that, when upon the call of a particular district, cases from that district shall be heard in the order of filing. Still this rule is not so inflexible as that it cannot yield, in order to advance a cause of this nature under the circumstances here presented.

Motion sustained, leaving counsel to submit cause on briefs or fix date for oral argument agreeable to counsel for both sides, and with the consent of the court. '

Where oral argument is asked in any case, by consent of both parties the request may be withdrawn at any time, and case submitted on brief. This remark is occasioned by the fact that, while no oral argument is requested in this case, there is made a motion to advance for hearing, whereas, if argument is not desired, all that was necessary was a submission of the case, and the present motion was unnecessary.

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Opinion on the Merits

On the Merits.

J. H. Weston, a citizen and taxpayer of Hancock county, filed a bill for the purpose of enjoining the board of supervisors from issuing certain bonds which they were attempting to issue for the purpose of working the public roads and building bridges in the county. The bill was demurred to, the demurrer sustained, and bill dismissed, from which judgment Weston appeals.

It appears that in August, 1909, the board passed an order requiring the public roads of that county to be worked by contract agreeably to the requirements of sections 4465 to 4475, Code of 1906. On the 9th day of July, 1910, following, and while working the roads under the contract system as provided above, the board passed an order declaring it to be their purpose to issue the bonds of the county in the sum of one hundred and twenty-five thousand dollars, or so much thereof as might be necessary, for the purpose of working roads and building bridges in the county. This order directed the clerk to publish a copy of the resolution “in the manner required by'law,” and for the purpose of notifying the taxpayers of the county of the proposed intention of the board, so that, if there was any opposition, such opposition might be presented to the board and heard at the next meeting of the board, on the first Monday-in August. This notice was published for the full period of time required by section 333 of the Code. At the August meeting no protest was filed, but the board did not make an order issuing the bonds until the September meeting; that is to say, the board did not order the bonds issued at the meeting next succeeding the publication of the notice of their intention, but did so at their second meeting thereafter. When the board made the order for the issuance of the bonds, it issued only one hundred thousand dollars. At this same meeting in September the board passed an order reciting substantially that, whereas, the present method of working roads by contract had proved unsatisfactory, that thereafter the method of working the roads should be as provided in chapter 150, p. 145, of the Laws of 1910, approved April 8th. The bill of complaint makes as exhibits the various orders of the board, and, in addition to the facts already stated, further alleges that it was beyond the power of the board to issue bonds while working its roads by contract.

In view of the fact that section 331 of the Code expressly authorizes the issuance of bonds “for building bridges, constructing public roads,” etc., we need only give passing notice to this • allegation in the bill. The above section does not limit the right of the board to issue bonds for the purpose of accomplishing its objects to any particular method adopted for the working of the roads. If the roads are worked by the old method of having an overseer, or if the roads are worked by the more modern method of contract, or if the roads are worked under the latest method prescribed by chapter 150 of the Laws of 1910, in either event it is discretionary with the board, subject to certain restrictions imposed by the law, not necessary to be here named, to issue the bonds of the county for the purpose of “building bridges, or constructing public roads. ’ ’ When the statute' speaks of “constructing public roads,” it uses the term in its most comprehensive sense. It does not mean merely the building of roads not before having an existence, but it means the maintenance and betterment of roads already in existence, and for this purpose the bonds of the county may be issued, if authorized by the board and not vetoed by the taxpayers in the method allowed by law.

The further allegations of the bill are that the resolution providing for the issuance of bonds in the sum of one hundred and twenty-five thousand dollars, “or so -much thereof as may be necessary,” is void, because it does not state the exact amount of the bonds which the board intended to issue. There is no force in this contention. The board named the maximum amount that it might issue, at the same time stating, in effect, that it would issue a less amount if it thought a less amount would be sufficient. It did not issue the maximum amount named, nor did it issue an amount in excess of that permitted by the statute.- The board had a right to state the maximum of the amount of bonds it intended to issue, and when it actually made the issue of bonds, it might issue a smaller amount, if, in its judgment, -the smaller amount was sufficient for the county’s purpose. There is nothing in the law prohibiting a board of supervisors from using its best judgment in the management of the finances of a county. Because the board gave notice that it might issue one hundred and twenty-five thousand dollars in bonds, it was not necessary for it to stick to that resolution if the-county could get along on less. If no taxpayer protested against the greater indebtedness, it is reasonably certain that none would protest against the less. The only reason why the board is required to publish notice is for the purpose of giving the taxpayer an opportunity to protest. If it was not for this, to the board would be committed the discretion of issuing the bonds within the statutory limits as to amount, without notice in any way. If, then, the object of the notice is carried out in good faith, as is the case here, and the burden imposed on the taxpayer is even less than the board gave notice that they intended to impose, which greater amount has been acquiesced in by the taxpayers, how can the taxpayers complain because their burden is less than the board said it intended to impose? Law is found in reason. Safeguards are imposed for a real purpos.e, not as mere technical obstructions.

A further objection urged is that the notice is defective. It is alleged that the notice was published on the 9th, 16th, 23rd, and 30th of July, but the board only authorized the notice to be published on the 9th, 16th, and 23d, and that the publication of the notice on ’the 30th was not placed in the order by the board, but merely left to run by the editor as a space filler; that if the notice had only been published on the 9th, 16th, and 23d of July as directed by the board, it would have left one week intervening between the 23d day of July and the 30th day of July and therefore the notice was not published for “three weeks next preceding” the first Monday in August, as required by section 333 of the Code. It plainly appears that the notice was published for three weeks next preceding the August meeting. It also appears that the order of the board directing the clerk to publish the notice directed him to publish it in conformity to the requirements of law, and tbe clerk did so. If the taxpayers got the notice in the manner and for the time required by law, by direction of the board, surely they cannot complain that they got more notice than they were legally entitled to.

While section 333. of the Code requires notice to be published for three weeks “next preceding,” it does not mean that, if the board fail to issue the bonds at the meeting of the board next after the publication of the notice, it may not do so at some future time. When the board has published the notice required by section 333 of its intention to issue the bonds of the county for the purposes named in section 331' for three weeks next preceding any meeting of the board, without protest, within that time, of ten per cent, of the adult taxpayers, exclusive of those who pay poll tax only, jurisdiction is acquired by the board to issue the bonds at the first meeting or any subsequent meeting of the board, as tbe discretion of the board may dictate, and jurisdiction is not lost by the failure to act immediately. The sole object of the notice is to give the taxpayers an opportunity to protest, and if they fail to enter their protest at the first meeting it is their own fault, and it is not reasonable to suppose that they would object at a succeeding meeting; but at all events the taxpayers have had their opportunity and let it pass without objection. If it be asked how long after this publication may the board continue to leave open the issuance of the bonds, and at what time this right expires, our answer is that the board may thereafter act at discretion. Powers of government must reside somewhere, and those in power must be trusted to carry out the powers intrusted to them in good faith and for the best interests of those whom they represent. So far as the taxpayer is concerned, when he fails to protest, the bonds then have a potential existence beyond revocation so far as he is concerned.

■ A further objection urged against the validity of these bonds is that the board is attempting to issue the bonds under .chapter 150, p. 145, Laws 1910; whereas on the date notice was published the bo.ard was operating under the contract system of working roads and was controlled by sections 4465 to 4475' of the Code. In short, the contention is that the notice given by the board of its intention to issue bonds was for the purposes authorized by law where the roads were worked under the contract system; whereas, after the publication of the notice, the board attempted to issue the bonds for working the roads in the different way provided for in chapter 150, Laws of 1910 — the argument being, therefore, that the taxpayers never have had an opportunity to protest against the issuance of bonds to be used for working the roads in the manner provided for by the Laws of 1910.

No material change was made in the road law by the Act of 1910, except as to the method of working the roads. The Laws of 1910 preserve all of the present laws on the subject of rbads, simply creating another way in which the roads could be worked. The Laws of 1910 allow roads to be worked by the board through a commissioner, a method not heretofore permitted; but the essential purpose for which the bonds are authorized to be issued in both cases is for the working of the road. The bonds are to be used for the same purpose, whether issued under the Laws of 1910 or the Code chapter, the notice required to be given is the same, the rate of interest is the same, and the amount of bonds authorized to be issued may be the same; and it is our view that the fact that the board did not adopt the Laws of 1910 until the September meeting, and after the published notice, in no way affected the authority of the board to issue.or the validity of the bonds when issued.

The authority to issue bonds for the purposes named in either section 331 of the Code of chapter 150 of the Laws of 1910 was not intended to be controlled by the method of working the roads adopted by the board; and, if we were to hold this, it would necessarily result in holding that, when an issue of bonds had been sold by the board for the purpose of building bridges or working public roads while the board was operating under one system, it could not change to another so long as it had not consumed all the funds raised by it while working under a particular method, because the taxpayers had acquiesced in the issuance of bonds for working of the roads only by the method in existence at the date of the issuance. This holding would hamper progress in the development of public roads. It would be out of harmony with reason, and would be contrary to the purpose and spirit of the law.

A further contention is that the Laws of 1910 violate section 85 of the Constitution of 1890 of the state. We can see no way in which the questions in this case can involve the above section. The section of the Constitution in question merely provides that: “The legislature shall provide by general láw for the Working of public roads by contract, or by county prisoners, or both. Such law may be put in operation only by a vote of the board of supervisors in those counties where it may be desirable.” This section of the Constitution does not provide an exclusive method for working the public roads, as a casual reading shows. Other ways of working the roads may be authorized by the legislature and adopted by the board of supervisors, and this was done by the Laws of 1910. Affirmed.