Opinion
No. 35079.
November 9, 1942.
1. STATUTES.
In statutes conferring on administrative boards the "powers necessary" to be exercised to carry out provisions of the statute, although indispensable necessity is sometimes held to be the criterion, the quoted words are ordinarily construed to include means and measures which are reasonably useful and appropriate.
"Necessary" is not a word of fixed and inflexible meaning, but in a particular connection it may denote something indispensable, and in another connection something reasonably useful and proper.
2. COUNTIES.
Powers conferred on county board of supervisors under provision of General Refunding Act of 1934 giving the board all "powers necessary" to be exercised to carry out provisions of the act were not restricted to absolutely necessary means and measures, but included all reasonably appropriate and useful means to the end to be accomplished, and which, in the judgment of the board, would most advantageously effect it (Laws 1934, ch. 143, sec. 9).
3. COUNTIES.
Under provision of General Refunding Act of 1934 conferring on county boards of supervisors all "powers necessary" to be exercised to carry out provisions of the act, supervisors of county whose bonds were in default were authorized to employ a firm expert in the business of bond refunding to assist in devising and carrying out a refunding program, and appropriation of county funds in payment for such services was to an "object authorized by law" (Laws 1934, ch. 143, sec. 9).
APPEAL from the chancery court of Newton county, HON. A.B. AMIS, SR., Chancellor.
Creekmore Creekmore, of Jackson, for appellant.
Only one issue is involved in this case and that is whether the allowances to the Tennessee Securities Company were for objects not authorized by law.
The position of appellant is that neither the General Refunding Act of 1934 nor any other statute authorizes boards of supervisors to employ fiscal agents in connection with the refunding and exchanging of bonds; but, on the contrary, that payment of compensation for such services results in the exchange of bonds for less than par, in direct violation of Section 5 of the General Refunding Act.
Appellee takes the position that it was necessary to employ experts to plan a comprehensive refunding program and to effect an exchange of the refunding bonds for those outstanding; and for necessary services of this nature the board was authorized to make payment under Section 9 of the General Refunding Statute.
Before proceeding with a discussion of the general refunding act and of the authorities dealing with the powers of boards of supervisors and the personal liability of members thereof and their bondsmen for allowances not authorized by law, we think it well to point out the irregularities in connection with the series of transactions here involved and the failure of the board to follow the provisions of law in regard thereto.
It will be noted, firstly, that no formal contract was ever made employing the Tennessee Securities Company or fixing the compensation to be received by it, and no order in regard thereto was ever entered on the minutes of the board until the program had been completed and the order allowing claims for traveling and incidental expenses was made at the June, 1938, meeting of the board; and, secondly, that no claims were ever filed by the Securities Company setting forth the amount due it as compensation for services rendered, but the allowances thus made were for that amount which the board determined to be reasonable compensation for the services rendered, i.e., the allowance was on a quantum meruit basis.
It is quite clear that if this were a suit by the Tennessee Securities Company against the county to recover of it for the expenses incurred and the services rendered, the amounts which are involved in this suit, that such recovery could not be had. The board would plead, and properly so, that it could act only through orders entered on its minutes, that there was no order employing the Securities Company to perform the services and it had no valid contract of employment; it would plead, and properly so, as to compensation for services rendered that the statute requires all claims against the county to be filed and docketed and that no claim could properly and lawfully be paid unless such first be done; and it would plead, and properly so, that since there was no valid contract of employment the county could not be held liable on a quantum meruit basis for the value of services rendered by the Securities Company.
Although the foregoing principles are so well settled as to require no authority, see: Corinth to Gulf Highway v. Carothers Co., 129 Miss. 645, 92 So. 696; Jackson Equipment Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734; Lee County v. James, 178 Miss. 554, 174 So. 76; Covington County v. Morris, 122 Miss. 495, 84 So. 462; Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395; Groton Bridge Mfg. Co. v. Board of Supervisors of Warren County, 80 Miss. 214, 31 So. 711; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Amite Co. v. Mills, 138 Miss. 222, 102 So. 465; Fitch v. Upshaw, 180 Miss. 298, 177 So. 57; Code of 1930, Section 253, as amended by Chapter 179, Laws of 1932.
Members of boards of supervisors and their bondsmen are liable for appropriations to objects not authorized by law.
Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Brown v. Reeves, 129 Miss. 775, 92 So. 825; Walton v. Colmer, 169 Miss. 182, 147 So. 331; Compare Lincoln County, State to use of, v. Green, 111 Miss. 32, 71 So. 171; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Code of 1930, Secs. 197, 257, 258, 259.
The allowances were not authorized by the General Refunding Act of 1934.
Boards of supervisors exercise limited jurisdictions and have no implied powers and must find the same either in the Constitution or statutes.
Howe v. State, 53 Miss. 57; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Greene v. Snellgrove, 103 Miss. 898, 60 So. 1023; State ex rel. Knox v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541; DeSoto County v. Stranahan, 159 Miss. 23, 131 So. 640; Lee County v. James, 178 Miss. 554, 174 So. 76; Green v. Board of Supervisors of Adams County, 172 Miss. 573, 161 So. 139.
Board of supervisors must strictly follow the statutory provisions relating to the issuance of bonds.
Johnson v. Board of Supervisors of Yazoo County, 113 Miss. 435, 74 So. 321; DeSoto County v. Stranahan, 159 Miss. 23, 131 So. 640.
No statute authorizes the board of supervisors to employ fiscal agents to effect the exchange of refunding bonds.
Code of 1930, Secs. 247-249, as amended by Ch. 198 and Ch. 204 of the Laws of 1932; Code of 1930, Sec. 249; Code of 1930, Secs. 5982-5986; Ch. 142, Laws of 1934; Ch. 143, Laws of 1934, Sec. 9; Ch. 229, Laws of 1932, as amended by Ch. 234, Laws of 132.
The allowance of brokerage fees resulted in an exchange of the refunding bonds for less than par in violation of the General Refunding Act.
Smith v. State, 99 Miss. 859, 56 So. 179; Laws of 1934, Ch. 143, Sec. 5.
C.E. Johnson, of Union, J.N. Ogden, of Mobile, Ala., Jacobson, Snow Covington, of Meridian, and Flowers, Brown Hester, Robert Burns, Jr., and H.M. Kendall, all of Jackson, for appellees.
The cases and statutes cited and relied upon by appellant either have no application to and are not authority for the position of appellant in this suit, or they support the position of appellees herein.
Before going into a discussion of the real issue in this case, it will perhaps be helpful to mention some things that are not involved herein, so that they can be brushed aside in the beginning and not be allowed to becloud the real question.
First, no question at all is raised by the pleadings in this case as to the validity of the refunding bonds here discussed, or of the power of the board under the subject statute to issue the same. It is recognized that the board had full power to issue them, that they were properly issued and all were duly validated in proper proceedings in the chancery court.
Again, the action of the board of supervisors in issuing these bonds and in employing and paying a refunding agent to assist in that matter was done in absolute good faith with the belief that it had full power and authority so to do, and no breath of fraud or collusion of any kind or character is alleged or involved in this suit. Neither is there any allegation or intimation that the individual members profited one whit by this transaction. So that any case cited by parties hereto having in it any element of fraud, corruption, selfish interest or any unfairness is not pertinent here. All that is material are the facts, circumstances and the statute.
Also, as already pointed out, this is not a suit by some individual or other party against the county or its political subdivisions attempting to assert some claim or contract right against it, which claim is being denied and challenged by the county, and where the claimant or the board has failed to comply with some statutory requirement necessary to fix liability on the county or its districts. That is an entirely different case than the one here, as will be more fully shown.
Finally, appellees have no quarrel with the general rule that an administrative board, especially the board of supervisors, has only the powers and the authority given it by the Constitution and the statutes of this state, as set forth in such cases as Howe v. State, 53 Miss. 57; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Green County v. Snellgrove, 103 Miss. 898, 60 So. 1023; State v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541; DeSoto County v. Stranahan, 159 Miss. 23, 131 So. 640; Lee County v. James, 178 Miss. 554, 174 So. 76; and Green v. Board of Supervisors of Adams County, 172 Miss. 573, 161 So. 139. The defendants say that they acted pursuant to authority conferred by the General Refunding Act of 1934.
A member of a board of supervisors is never liable for allowances made out of the county treasury when the appropriations are made to objects authorized by law.
The term "objects authorized by law" as used in Section 259 of the Mississippi Code of 1930, and other statutes, and as employed in the opinions heretofore rendered by this court, is synonymous with the term "jurisdiction of the subject-matter."
Walton et al. v. Colmer, 169 Miss. 182, 147 So. 331; Paxton v. Baum, 59 Miss. 531; Code of 1930, Sec. 259; 4 Am. Jur. 202, Sec. 29.
The board of supervisors of Newton County, in entering the orders and making the findings of fact contained therein providing for the allowances complained of, was acting judicially, and these orders and findings cannot be collaterally attacked, when the board is acting within its jurisdiction.
Paxton v. Baum, supra; Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738; Harvey et al. v. Covington County, 161 Miss. 765, 138 So. 403; Hegwood v. Board of Supervisors of Smith County (Miss.), 140 So. 223; Green v. Hutson, 139 Miss. 471, 104 So. 171; Johnson v. Board of Supervisors of Yazoo County, 113 Miss. 435, 74 So. 321; Hinton v. Board of Supervisors of Perry County, 84 Miss. 536, 36 So. 565; Board of Supervisors of Simpson County v. Buckley, 81 Miss. 474, 33 So. 650; Validation of Lincoln County Funding Bonds, 187 Miss. 392, 193 So. 26; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Peoples Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192; Gully, State Tax Collector, v. Bew et al., 170 Miss. 427, 154 So. 284; Walton v. Colmer, supra; Gully, State Tax Collector, v. McClellan, 170 Miss. 405, 153 So. 524.
The "General Refunding Act of 1934," being Chapter 143 of the Laws of 1934, confers jurisdiction upon the board of supervisors to make the allowances complained of.
Abbott v. State, 106 Miss. 340, 63 So. 667; Moore Dry Goods Co. v. Rowe and Carithers, 97 Miss. 775, 53 So. 626; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Re Validation of Road Protection Bonds of Hancock County, 184 Miss. 727, 184 So. 815; General Laws of 1934, Ch. 143.
Statutes grant power and authority not only by express language, but also by reasonable implication from the language used and the ends sought.
State, to use of Lincoln County, v. Green, 111 Miss. 32, 71 So. 171; Peets et al. v. Martin, 135 Miss. 720, 101 So. 78; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Walters v. Walters, 180 Miss. 268, 177 So. 507; Hancock v. Karel, Sheriff (Fla.), 173 So. 274; National Surety Co. et al. v. Miller, 155 Miss. 115, 124 So. 251; City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771.
The provisions of Section 249 of the Code of 1930 are not applicable to the proceedings taken under Chapter 143, Laws of 1934, or to the allowances made by the board thereunder.
The allowances complained of in this suit did not violate the last sentence in Section 5 of said Chapter 243 of the Laws of 1934, requiring the bonds to be exchanged at par.
Smith v. State, 99 Miss. 859, 56 So. 179.
The expenditures to Tennessee Securities Company were made under mandatory provisions of law, superior to ordinary statutory limitations.
City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771; Tucker Printing Co. v. Board of Supervisors of Attala County, 171 Miss. 608, 158 So. 336; Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900; State ex rel. Attorney General v. Board of Supervisors of Stone County, 131 Miss. 689, 95 So. 683; Board of Supervisors of Grenada County v. State, 144 Miss. 704, 111 So. 143.
Argued orally by Rufus Creekmore, for appellant, and by Robert Burns, Jr., for appellees.
Owing to the consequences of the recent financial depression, the County of Newton was in default of many, if not most, of its county and district bonds, amounting to about $234,000. Because thereof its credit was greatly impaired and suits were being filed against it to compel additional levies to meet the obligations of the defaulted issues. In this situation the board of supervisors decided to avail of the provisions of the General Refunding Act of 1934, Chap. 143, Laws 1934. Such a volume and complication of records were involved, and the advisability of availing of the assistance of persons expert in the business of bond refunding and who, for the essential contacts, had an accredited standing in the business world, was deemed so manifest, that the board, acting under the provisions of Section 9 of the Act, which conferred "all powers necessary to be exercised . . . in order to carry out the provisions of this act," employed the Tennessee Securities Company to aid the board in making the necessary compilations and analyses and thereupon in devising and carrying out a broad and feasible refunding program for the rehabilitation of the county's financial structure. The company rendered the aid throughout both in services and expenses paid, and by means thereof the desired end was fully and efficiently accomplished. The board paid the company for its services and in reimbursement of expenses a total of $5,251.51; and this suit is by the State Auditor against the members of the board and their bonds, under Section 259, Code 1930, the contention being that the board was not authorized to employ such aid and that the payments therefor were to an object not authorized by law.
The contention brings to mind the most important, perhaps, among all the cases in the judicial history of this country, McCulloch v. Maryland, 17 U.S. 316, 416, 4 Wheat. 316, 4 L.Ed. 579. In the statute now under consideration, the means and measures which the board was authorized to employ in the accomplishment of the purpose in hand are comprehended solely in the quoted clause that it shall have "all powers necessary," — the legislature made no attempt to go into details in that respect.
The word "necessary" is not one of fixed and inflexible meaning. It may in a particular connection denote something indispensable, and in another something reasonably useful and proper. An examination of a sufficient number of the many cases in which the word has been used in conferring powers on administrative boards will disclose that in a few such cases it has been declared that an indispensable necessity is the criterion, but the majority holds that it includes means and measures which are reasonably useful and appropriate. See 28 Words and Phrases, Perm. Ed., p. 161 et seq.
Looking to the statute and the particular section thereof here before us, and taking into consideration the various and difficult situations for which it was intended to afford relief, we are of the opinion that the words "all powers necessary," as used therein, are not to be interpreted as authorizing only the means and measures which are absolutely necessary but as including all reasonably appropriate and useful means to the end to be accomplished and which, in the judgment of the board will most advantageously effect it. Compare Kay County Excise Board v. Atchison, etc., R. Co., 185 Okla. 327, 91 P.2d 1087.
Applying this definition to the stated facts, it follows that the board acted here within the authority conferred on it; that the appropriations were to an object authorized by law, and that there is no cause of action against the board members.
Affirmed.