Opinion
No. 37626.
November 6, 1950.
1. Appeal — interlocutory decree — full settlement of demand — moot question.
When pending an appeal from an interlocutory decree in a suit to compel payment of salary, there has been a complete accord and satisfaction between the parties so that no further demand by the complainant remains to be disposed of, the appeal on the motion of the complainant will be dismissed as moot, and in the absence of any demand for reimbursement or refund, the fact that otherwise a constitutional question would have been involved does not authorize an examination of, and an advisory opinion on, that question.
Headnote as approved by Alexander, J.
APPEAL from the chancery court of Pike County; R.W. CUTRER, Chancellor.
For the motion:
Cassidy, McLain Alford, and Barnett, Jones Montgomery.
We respectfully submit that the controversy between the parties having been compromised and settled as shown by the certified copy of the resolution attached to the motion, and appellee having received the settlement by the resolution, the issues here presented are moot. McDaniel et al. v. Hurt, et al., 88 Miss. 769, 41 So. 381; Smith v. Citizens Bank Trust Company, 125 Miss. 139, 87 So. 488; Day Lumber Mfg. Co. v. Citizens Bank, (Miss.) 48 So. 727; Rawlings, et al. v. Claggett, et al., (Miss.) 165 So. 620; Bank of Port Gibson v. S. Dickson, Tax Collector, 4 Miss. 698; State v. Standard Construction Company, 118 Miss. 469, 78 So. 675.
Contra:
Gordon Gordon.
We earnestly contend that the board of supervisors of Pike County had no authority under Local and Private House Bill No. 1088 of the Laws of 1950 to expend the money as the said Local and Private Act is and was void and invalid and was the same as if it had never been enacted. We further contend that the general law Article 19 of the School Law of Mississippi, Secs. 6475 to 6486 inclusive of the 1942 Code places the funds in charge of the junior college trustees and the superintendent of education and the board of supervisors had no authority to expend the said funds either under the said Local and Private Bill or the General Law and for that cause the motion should not be sustained and the cause dismissed. On this point we refer to Thompson v. Agricultural High School, 117 Miss. 621, 78 So. 547; Ladner v. Talbert, 121 Miss. 592, 83 So. 748. This Court should retain the cause and if it, in its learned judgment, is found that there was a contract under the law and that the appellee was entitled to be paid, then he should be paid. If there was no contract and the appellee was entitled to no pay and he could not maintain said suit as filed against the trustees, then the lower court should be reversed and the bill of complaint dismissed.
When we look into the order of the board of supervisors of Pike County, Mississippi, as attached to the motion to dismiss, we find that for some cause the board knew, or thought, it had no authority in the matter, or to pay the claim, or to pay it from the funds of the Southwest Mississippi Junior College for it took the unusual course of requiring that the appellee furnish them with an indemnity bond in the sum of $6,500 or for $800 more than the amount of the claim, which indemnity bond was to run for a period of two years. This is evidence of the fact that they knew that they did not have authority under the House Bill No. 1088 and under the general law and under the Constitution of the State to pay out the funds of the Southwest Mississippi Junior College in paying the claim that the trustees had refused to pay as it knew that the orders entered on April 19, 1947 and April 5, 1948, constituted no contract and that they were without authority to make a donation or to retire their president on a retirement pay.
We therefore submit that the motion to dismiss the appeal in this Court should be overruled and that this Court should proceed to hear this matter on the appeal as to the right of the appellee to bring said suit and to maintain the suit against the trustees and as to his right to collect from the school under the alleged contract. We respectfully submit that the cause should be kept before the Court.
Appellee filed his bill against the Superintendent of Education of Pike County, the Trustees of the Southwest Mississippi Junior College, and the board of supervisors of said county to clarify the terms of an alleged employment of appellee, and to compel payment of a stipulated salary which by an amendment was computed at $4,600. It was met by a demurrer setting up an absence of any equity and the immunity to suit of the defendants as agents of the State. A demurrer was overruled and an interlocutory appeal was allowed and perfected.
Subsequently a motion was filed by appellee in this Court to dismiss the appeal as moot. Our attention is directed to Senate Bill No. 144, Chapter 288, Laws of 1950, by which such college was made liable to suit. We need not draw aside to consider the validity or effect of such act as applicable to the instant case nor the validity of a special enactment, House Bill No. 1088 of the Laws of 1950, which purported to authorize the board of supervisors to pay to appellee the sum of $5,700 in full settlement of his claim.
Interesting questions are presented by the attack upon the validity of this latter act. However, (Hn 1) we are not authorized to examine the merits of the contention for the reason that by stipulation filed herein, it is shown that such amount has actually been paid to and accepted by appellee who makes disclaimer of any further demand.
Appellants insist that the constitutionality of the special act remains open for consideration and that it presents a matter of general public interest. We are unable to agree to this view. Since there exists no further demand by the appellee, there can be adjudicated no form of relief. Reimbursement and not refund is sought. Any opinion thereon would be purely advisory and would solve a contention now of only academic interest to prospective litigants. A complete accord and satisfaction between the parties has made the issues moot. Board of Supervisors of Kemper County v. Nevill, 95 Miss. 56, 48 So. 727; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Lockard v. Hoye, 113 Miss. 238, 74 So. 137; Yates v. Beasley, 133 Miss. 301, 97 So. 676; State ex rel. Knox v. Board of Supervisors of Pearl River County, Miss., 115 So. 343; White v. Franklin, 165 Miss. 729, 140 So. 876; Rawlings v. Claggett, 174 Miss. 845, 165 So. 620; Sheldon v. Ladner, 205 Miss. 264, 38 So.2d 718; 3 Am. Jur., Appeal and Error, Sections 733, 736; 4 C.J.S., Appeal and Error, Section 1354 (e).
Appeal dismissed.