Opinion
No. 34494.
May 12, 1941.
1. COUNTIES.
Note executed by president of board of county supervisors pursuant to an order of the board without authorization of majority of electors of county was void, where at time note was issued there was no money in county treasury for its payment when due, and the defect was not cured by curative act (Code, 1930, sec. 5979; Laws 1936, 2 Ex. Sess., chap. 16).
2. APPEAL AND ERROR.
In action on note given by county in consideration of conveyance of tract of land on which house was situated to county, court holding note invalid could not determine payee's right to recover value of house which county had removed from the land, but such right could be considered in a proper proceeding that might be instituted to cancel deed to land executed by payee to the county.
APPEAL from the circuit court of Yalobusha county, HON. JOHN M. KUYKENDALL, Judge.
R.F. Kimmons, of Water Valley, for appellant.
The loan warrant was not an interest-bearing obligation, and it was unnecessary that it be authorized by the vote of the majority of the electors in an election called for the purpose of determining whether such debt should be incurred.
The Board of Supervisors had full jurisdiction over the courthouse and the courthouse grounds, and it is their duty to provide a courthouse, a jail, and sufficient grounds around the courthouse for the conveniences of the officers and the public. The Board of Supervisors are given full jurisdiction over these things and all the powers necessary to perform their duties.
Choctaw County v. Tennison, 161 Miss. 66, 74; Code 1930, secs. 214-222.
The Board of Supervisors would not be hindered in the performance of their duties by such an interpretation of Section 5979 of the Code as would destroy that authority of the Board.
Choctaw County v. Tennison, 161 Miss. 66; Bd. of Sup'rs v. Gully, 122 Miss. 46.
The record discloses the fact that the Board of Supervisors did not intend to pay this indebtedness out of the revenues collected for the year 1935. Taxes had not been levied in August, 1935. The budget for the succeeding year had not been adopted, and therefore the Board of Supervisors bought the land and provided for the payment thereof after the taxes which were to be levied later in the year, and we find from the testimony of Mr. Bennett, and the agreement of counsel on the trial of this case that in the budget adopted by the Board there was the item of $10,000 to pay the General County Loan Warrants, and the taxes were levied by the Board of Supervisors to meet these obligations, and doubtless the money to pay this note or loan warrant was in the Treasury on February 1, 1936, the date the warrant became due.
When Chapter 16, Extraordinary Session 1936, is carefully analyzed, we believe that this act does ratify and make valid the contract sued on even though because of certain technicalities it might be held void when made.
The language of the first section is certainly broad enough to cover this case, and the act was enacted for the purpose of aiding in the enforcement of rights intended to be given to the parties when the agreement was made.
The contract under consideration is not within the exception, "Any warrants, certificates or indebtedness or other obligations issued in violation of Chapter 236 of the Laws of Mississippi 1920 and amendments thereto," in Section 2 of the Act, since it does not violate Chapter 326 of the Laws of 1920, which is brought forward in the Code of 1930 as Section 5979.
Choctaw County v. Tennison, 161 Miss. 66; Tucker Printing Co. v. Board, 171 Miss. 608; Bd. of Sup'rs v. Gully, 122 Miss. 46; Marshal County v. Callahan, 130 Miss. 271. Stone Stone, of Coffeeville, and Creekmore Creekmore, of Jackson, for appellee.
The loan warrant sued on is void because it is an interest-bearing obligation, and its issuance and the incurring of the debt purported to be evidenced thereby was not authorized by a vote of a majority of the electors of the county called for the purpose of determining whether such debt should be incurred.
Sec. 5978, Code of 1930; Moore v. Tunica County, 143 Miss. 839, 108 So. 900; Toler v. Love, 170 Miss. 252, 154 So. 711.
The loan warrant sued on is void because it purports to evidence an indebtedness incurred and/or the issuance of a warrant for a purported debt when there was not sufficient money in the treasury to pay the same.
Sec. 5979, Code of 1930; Marshall County v. Callahan, 130 Miss. 271, 90 So. 5; Choctaw County v. Tennison, 161 Miss. 66.
In Section 2 of Chapter 16, Extraordinary Session 1936, it is expressly provided that the Act shall not be taken or construed to validate any obligation issued in violation of Chapter 326 of the Laws of 1920, now Section 5979, Code of 1930. This statute provides that no warrant shall be issued or indebtedness incurred by any county unless there is sufficient money in the particular fund from which the allowance is or must be made to pay such warrant or indebtedness. The undisputed testimony shows, that the fund out of which the loan warrant sued on or the indebtedness incurred would have to be paid was overdrawn at the time in the amount of $31.57. So clearly the instrument sued on was in violation of this law.
This is an action at law by the appellant on a loan warrant or promissory note, dated August 12, 1935, executed by the president of the board of supervisors pursuant to an order of the board for $1,500 due February 1, 1936, with six percent interest thereon after maturity.
The consideration for this note was a conveyance to the county of a small tract of land adjoining the land on which the county courthouse is situated. The note was executed without being authorized by a majority of the electors of the county, either by petition or at an election for that purpose, and when issued there was no money in the county treasury for its payment when due. Consequently, the appellee says that the note is void under Sections 5978 and 5979 of the Code of 1930. Laying the question as to whether this note is an interest-bearing obligation within the meaning of Section 5978 on one side, and expressing no opinion thereon, it does violate, and consequently is void under, Section 5979 of the Code. The appellant says, however, that this defect in the note was cured by Chapter 16, Laws of the Second Extraordinary Session of 1936, by which certain enumerated outstanding indebtedness of counties, municipalities, and other taxing districts contracted in violation of governing statutes were validated. We will not pause to inquire whether this note is one of the debts intended to be validated by the first section of this statute, for it is excepted therefrom by the second section thereof which provides that the statute shall not apply to "warrants, certificates of indebtedness or other obligations issued in violation of chapter 326 of the laws of Mississippi, 1920, and amendments thereto." Section 5979 of the Code simply brought forward Chapter 326, Laws of 1920, with the amendments theretofore made thereto.
The county took possession of the land and removed a house therefrom, and the appellant says that she should be permitted to recover at least the value of this house. We will assume that a claim therefor is properly presented by the pleadings, but the appellant's right vel non to this compensation cannot be here determined and must remain for consideration in a proper proceeding that may be instituted by her to cancel the deed to the land executed by her to the county.
Affirmed.