Opinion
No. 35701.
December 11, 1944.
1. COUNTIES.
The district attorney was authorized to maintain suit against supervisor on behalf of county to recover for loss to county as result of supervisor's action in permitting county equipment to be used for benefit of individuals (Code 1942, secs. 3920, 3922, 3923, 4392, 4394).
2. DISTRICT AND PROSECUTING ATTORNEYS.
If district attorney may bring suit on behalf of county he may bring it where only a part of county is concerned (Code 1942, secs. 3920, 3922, 3923, 4392, 4394).
3. COUNTIES.
The district attorney was not required to obtain authority from board of supervisors before bringing suit on behalf of a district of county against supervisor to recover for loss to county from supervisor's action in permitting use of county equipment for benefit of private individuals (Code 1942, secs. 2955, 2956, 4392, 4394).
4. COUNTIES.
The chancery court had jurisdiction of suit by county to recover against supervisor and his surety for loss to county resulting from supervisor's action in permitting use of county equipment for benefit of private individuals (Const. 1890, sec. 161).
5. DISCOVERY.
In suit by county against supervisor to recover for loss resulting from use of county equipment for benefit of private individuals, supervisors could not defeat county's right to discovery as to loss, expenses and outlays thereby incurred on ground that such a disclosure would tend to incrimination where acts complained of were not crimes, even though they might involve moral turpitude.
6. INJUNCTION.
In suit by county against supervisor to recover for loss resulting from use of county equipment for benefit of private individuals wherein an injunction upon final hearing was sought, determination of right to injunction would not be made on demurrer, but would be left until the hearing.
APPEAL from the chancery court of Lee county, HON. ALVIS MITCHELL, Chancellor.
Mitchell Clayton, of Tupelo, and W.C. Sweat, of Corinth, for appellants.
The district attorney has no authority to file this suit in the chancery court.
Capitol Stages, Inc., v. State, 157 Miss. 576, 128 So. 759; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Code of 1930, Secs. 271, 4363, 4366, Code of 1942, Secs. 2956, 3920, 3923; Constitution of 1890, Sec. 174.
A suit of this character cannot be brought without consent of the board of supervisors.
American Oil Co. v. Interstate Wholesale Grocers, 138 Miss. 801, 104 So. 70; Freeman v. Board of Sup'rs of Lee County, 66 Miss. 1, 5 So. 516; Storey v. Rhodes et al., 178 Miss. 776, 174 So. 560; Code of 1930, Secs. 197, 259, 270, 271, 3923, Code of 1942, Secs. 2872, 2944, 2955, 2956.
The acts complained of do not amount to an appropriation. Appropriations can be made only by the board of supervisors and must appear upon the minutes.
Code of 1930, Secs. 255, 260, Code of 1942, Secs. 2941, 2945.
Since the acts complained of do not amount to an appropriation, then of course they are not appropriations to an object not authorized by law.
Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Barnett v. Woods, 196 Miss. 678, 18 So.2d 443; Lee County v. James, 178 Miss. 554, 174 So. 76.
The whole board of supervisors and not the individual members are responsible for use of road machinery and labor and no liability is shown against the individual member in this case.
Lee County v. James, supra; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Simpson County v. Panther Oil Grease Co., 185 Miss. 506, 188 So. 566; Code of 1930, Sec. 6381, Code of 1942, Sec. 8330: 22 R.C.L. 487.
The discovery prayed for would tend to incriminate defendant Shumpert. A defendant cannot be required to incriminate himself in answer to a bill in chancery.
Watts v. Smith, 24 Miss. 77; Rawleigh v. Hester, 190 Miss. 329, 200 So. 250; 27 C.J.S. 12.
Another reason discovery would not be required is that the part of the bill asking for discovery in only a fishing bill.
Rawleigh v. Hester, supra; Stiplin v. Mobile O.R. Co., 152 Miss. 512, 120 So. 193; Griffith's Mississippi Chancery Practice, Sec. 429.
The bill does not allege facts sufficient to justify issuance of an injunction. A complete answer to the question of whether or not injunction would issue is found in exhibit to the original bill. This is a copy of the bond executed by defendant Shumpert. This shows that his term of office expired the first Monday of January, 1944. At the time of the hearing the question was a moot one. Regardless of what his actions were prior to the first Monday of January, 1944, he could not be enjoined as a supervisor after his term of office expired.
State ex rel. Mitchell v. Smith, 87 Miss. 551, 40 So. 22.
Another reason for refusal of an injunction is found in the fact that the board of supervisors are a part of the judiciary department.
Haley v. State, 108 Miss. 899, 67 So. 498; Constitution of 1890, Sec. 170.
The courts will not attempt to control their actions as to roads.
Berry v. Board of Supervisors of Jefferson Davis County, 156 Miss. 629, 126 So. 405.
It is a fundamental principle that an injunction, being an extraordinary legal remedy, will not be granted where there is an adequate and efficient remedy at law. There is nothing in the allegations of the bill before us that shows that an irreparable injury would result.
McKee v. Hogan, 145 Miss. 747, 767, 110 So. 775, 111 So. 357.
In the case at bar, the remedy at law is adequate. In fact, when the discovery feature and the injunctive relief are eliminated, the bill is only for collection of a sum of money which is alleged to be due the fourth supervisor's district of Lee County. The remedy at law is complete. No irreparable injury would result and it is not alleged that such would be the result.
The circuit court has exclusive jurisdiction of this case.
Constitution of 1890, Sec. 156.
It was contended in the lower court that Section 161, Constitution of 1890, gave the chancery court jurisdiction in this cause. This section does not give the chancery court jurisdiction of all suits on official bonds. It is limited to suits "for failure to account for money or property received, or wasted, or lost by neglect or failure to collect." It certainly cannot be argued that the suit at bar comes within that provision of the Constitution.
Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32.
Fred B. Smith, of Ripley, for appellee.
As we understand the contention of the appellant, it is, first, that a district attorney has no authority to bring a suit similar to this, and next, if he has such authority he cannot bring it in the chancery court, and third, if he has authority to bring it in the chancery court it is only where the entire county is interested and not where it was brought primarily for the benefit of a single supervisors' district. The statutes of Mississippi, under the interpretation of the decisions of this court, are amply broad to fully meet all the objections of the appellant.
The statute clearly provides that suit may be brought in the name of the county, where ony a part of the county is concerned.
Code of 1942, Sec. 2956.
The district attorney, in this character of case, has a right to institute a proceedings for the benefit of the county.
Capitol Stages v. State, 157 Miss. 576, 128 So. 759; Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318; Code of 1942, Secs. 3920, 3923.
If the district attorney had a right to bring the suit, then certainly he had a right to bring it in any appropriate court of competent jurisdiction, and the chancery court was such a court.
Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Robertson v. Bank of Batesville, supra; National Surety Co. v. Board of Supervisors of Holmes County, 120 Miss. 565, 81 So. 792; Brown v. Reeves, 129 Miss. 755, 92 So. 825; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Gully v. Bew, 170 Miss. 427, 154 So. 284; Code of 1942, Sec. 3920; Constitution of 1890, Sec. 161.
The suit need not be authorized by the board of supervisors. The appellant relies on Section 2955 of the Code of 1942. This section only means that a county may bring suit in its own name, but a suit in the name of the county shall not be brought without the authority of the board of supervisors, except as otherwise provided by law. This case, however, is not in the final analysis a suit by the county or in the name of the county, it is a suit by the district attorney, in the name of the State of Mississippi, for the use and benefit of the county and a supervisor's district thereof. It is a suit against a public officer, on his official bond, for the use and benefit of the injured subdivision of the county, and in every respect it complies with Section 4034 of the Code of 1942, which applies to such suits. Section 2955 of the Code of 1942, relied on by appellant, has no application here, where the suit is in fact in the name of the State of Mississippi by the district attorney, for the use and benefit of the county and a subdivision thereof. Certainly no action on the part of the board of supervisors is necessary to authorize the State of Mississippi, through one of its proper officials, to bring a suit on the bond of a public officer for his illegal actions. However, if this section did not apply, it specifically provides that suit shall not be brought without authority of the board of supervisors, "except as otherwise provided by law." The sections hereinbefore referred to, authorizing the district attorney to institute suit, is clearly "a provision otherwise made by law." It is our further position, however, that the alleged unlawful and illegal acts of the defendant supervisor constituted an appropriation of public money to an object not authorized by law, which is covered by Section 2944 of the Code of 1942. Again we call attention to the fact that this is an action on a bond of a supervisor to recover for an injury caused by the illegal act of a member thereof, and this situation is covered by Section 2872 of the Code of 1942. All these sections authorize suit in the name of the county for illegal acts, such as those charged in the original bill, and the sections previously cited authorize the district attorney to institute same without any request or authorization whatever from the board of supervisors. Suits on behalf of the county or part of the county are not brought in the name of the board of supervisors, but are brought in the name of the county.
National Surety Co. v. Board of Supervisors of Holmes County, supra; Capitol Stages v. State, supra; Greaves v. Hinds County, supra; Code of 1942, Sec. 4394.
Appellant takes the position that since the money wrongfully used by him was not paid out on a claim filed and allowed, it did not constitute an appropriation, and therefore he would not be liable therefor. In other words, under this argument, a supervisor would never be liable, so that the county could recover for his illegal acts, except where an appropriation was made out of the treasury as provided by Sections 2941 and 2945 of the Code of 1942. If this theory of the law is correct, then a member of the board of supervisors can steal or embezzle the funds or property of the county, and not be civilly liable therefor. Under such construction of law his bond is virtually a nullity. For certainly a supervisor stealing the funds or property of the county, or embezzling the funds or property of the county, would not be securing same through an appropriation. We respectfully submit that a supervisor cannot convert the property, materials and supplies of a county to an unlawful and illegal purpose, and yet immune from liability. He cannot avoid liability, merely by paying the money to an object authorized by law, and then taking the thing purchased and using it for his illegal and corrupt purposes. If his act is corrupt and illegal he is liable therefor whether it constitutes, in the strict sense of the word, an "appropriation" or not.
Paxton v. Baum, 59 Miss. 531; Miller v. Tucker, supra; Walton v. Colmer, 169 Miss. 182, 147 So. 331; Code of 1871, Sec. 309; Code of 1906, Sec. 293 (Code of 1942, Sec. 2872); Code of 1942, Secs. 2890, 8330; Constitution of 1890, Sec. 170.
There is unquestionably individual liability on the individual member of the board of supervisors for his illegal acts when he is called to answer same in a public suit brought on behalf of the county by the district attorney, and such a suit can be brought against one or more of the individual members.
Walton v. Colmer, supra; State ex rel. Bank of Commerce Trust Co. v. Forbes, 179 Miss. 1, 174 So. 67.
The mere fact that the conduct alleged in the original bill would indicate moral turpitude does not constitute such incrimination as to relieve one of a discovery. Watts v. Smith, 24 Miss. 77.
Certainly there is no merit to the contention of the appellant that this is merely a fishing bill.
Griffith's Mississippi Chancery Practice, Sec. 429.
The appellant takes the position that the term of the defendant Shumpert expired on the first Monday in January, 1944, and that regardless of his actions prior to that date he could not be enjoined as a supervisor after his term of office expired. Since the expiration date of his term of office was not definitely set forth in the original bill, he relies on the case of State of Mississippi ex rel. Mitchell v. Smith, 87 Miss. 551, 40 So. 22, to the effect that the court will take judicial notice of the beginning and ending of terms of office of a member of the board of supervisors. This is a well established principle of law, and we are happy that appellant brought it to the attention of the court. Because according to this principle of law, of course, the court will take judicial notice as to who the present occupant is of the office of supervisor of the Fourth District of Lee County, Mississippi, and taking judicial notice thereof the court will find that the defendant Shumpert succeeded himself in that office, and although his old term of office expired on the first Monday in January, 1944, his new term of office began on the same day. Appellant Shumpert is now the qualified and acting supervisor of the Fourth Supervisors' District of Lee County, Mississippi. This fact was not charged in the original bill, because at the time it was filed he had not assumed the duties of office under his new term, but the court will take judicial knowledge of that fact. The original bill charges that the defendant had continuously engaged in the illegal acts, and that he is continuing so to do, and there is no indication before this court that he has stopped this alleged illegal course of conduct, or that he has any intention so to do. But even if proof was produced that since the beginning of the new term of office of the supervisor he had ceased his illegal and unauthorized construction of private projects, by reason of a suit having been instituted against him thereon, still it would be within the sound discretion of the court as to whether an injunction should not nevertheless issue, because of his well established course of conduct in the past.
State ex rel. Whall v. Saenger Theatres Corporation, 190 Miss. 391, 200 So. 442.
But appellant says that Supervisor Shumpert is a part of the judiciary. It is needless to cite authorities to the effect that a supervisor acts in a dual capacity, both as an administrative and a judicial officer. It would be a rather grave stretch of the imagination to say that a supervisor could not be enjoined from an act which was wholly without authority of law, which was clearly illegal, which was corrupt, and wilful, merely because under some circumstances he acted in a judicial capacity.
28 Am. Jur. 356, 357, Sec. 166; 32 C.J. 240, 241, Sec. 383.
Appellant says that a suit for an injunction can only be brought to prevent an irreparable injury, which is not the case in this action. The acts complained of will occasion irreparable injury or necessitate a multiplicity of suits.
See Hood v. Foster, 194 Miss. 812, 13 So.2d 652; Rosenblatt v. Escher, 184 Miss. 274, 185 So. 551; 1 Pomeroy Equity Jurisdiction, Sec. 245.
Appellant says that the discovery and injunction features of this action should be eliminated, and if this is done we simply have a suit for an alleged amount due the Fourth District of Lee County, for which there would be a full, adequate and complete remedy at law. We respectfully submit that neither the prayer for discovery nor the prayer for injunction should be eliminated, but we say that if same were eliminated there would still be ground for equity jurisdiction, and that there would be no full, adequate or complete remedy at law. The equities of the matter demand that this cause be heard before a court competent and capable of rendering justice between the parties.
Rockett v. Finley, 183 Miss. 308, 184 So. 78; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; State Constitution, Secs. 159, 160, 161; 21 C.J. 50, Sec. 27.
Original bill was filed by Jessie M. Coleman as district attorney, with the approval of the Attorney General, on behalf of Beat Four of Lee County against Mark M. Shumpert, a member of the board of supervisors for such beat, and his surety, the National Surety Corporation. The bill was by amendment revived in the name of Raymond Jarvis, successor in office to Coleman. The bill sets out the authority and duty of the board to build, construct and maintain the public roads of the county, and to this end to use the funds collected in the respective districts for such improvements. It further alleged that construction equipment, such as tractors, graders and the like, were purchased by the county, but the right to use them was confined to objects authorized by law for the public welfare.
The gravamen of the action is the alleged employment, by appellant as supervisor of Beat Four, of a tractor and other construction equipment belonging to the county, in the gratuitous construction of private pools, ponds, lakes, roads and ditches for individuals and friends in which the public had no interest. Such conduct was alleged to be "wilful, unlawful, corrupt and without any authority of law." Such alleged misuse of the property of the county was stated to involve an expense and loss to the county arising from the depreciation and deterioration of such equipment, the use of gasoline and oil, and the expenditure of considerable sums for wages and hire of its employees.
The bill sets forth eighteen private individuals to whom such gratuitous favors were extended, with the respective expenses detailed totaling a loss to the county of $1,284.09. The names of fourteen other recipients of such bounty were listed, but without information as to the respective amounts expended. As to these latter, and any others similarly favored, discovery was prayed for. Injunction upon final hearing was also included in the prayer which sought decree against Shumpert and the surety upon his official bond for the amounts represented by actual outlay and depreciation.
To the bill demurrer was interposed which raised the following legal defenses: No equity; lack of authorization by the board of the suit; lack of authority in the district attorney to sue; absence of right to discovery or injunction; and the objections which may be summarized as an absence of jurisdiction of the court to hear and of the appellee to sue. The demurrer was overruled and an appeal allowed to settle all the controlling legal principles.
Examination of the authority of the district attorney to maintain this suit brings into view several statutes. It can not be doubted that originally the duties, and hence the authority, of the district attorney were made consistent with his chief role of prosecutor in the circuit courts of his district, and involved actions that were criminal or quasi criminal. These duties were set out in Hutchinson's Code of 1848, Chapter 22, Article 3, Section 4, and are now embodied in Code 1942, Sections 3920, 3922, 3923. Yet, that portion of the original act as is found in Section 3923, Code 1942, authorizes this official, with the approval of the Attorney General, to "institute . . . before the proper court (suits against) all persons indebted to . . . any county within his district." See Greaves v. Hinds County, 166 Miss. 89, 101, 145 So. 900. Section 4392, Code 1942, authorizes the state to "bring all actions and all remedies to which individuals are entitled in a given state of case." Section 4394 adds the provision that "any county may have like remedies given to recover any property belonging to it, or damages for injury thereto; and action may be brought in behalf of the county . . . by a district attorney . . ." Unless the literal terms of such statutes are restricted by other inconsistent statutes, the authority of appellee to sue is there supplied. The allegation that the construction equipment of the county was damaged by depreciation, and its gasoline and oil used illegally would satisfy the letter of the statute.
Appellant contends, however, that the suit is one by the county and that under Code 1942, Section 2955, it "shall not be brought by the county without the authority of the board of supervisors," and that such authority is not disclosed. To this, the district attorney replies that this statute contains the proviso "except as otherwise provided by law," and that it is otherwise so provided by Section 4394, as well as Section 3923. If it be the fact that only part of the county is interested, inasmuch as the allegedly illegal use of property was that allocated to District Four, which we do not decide, it is a sufficient answer that under Code 1942, Section 2956, the contention has only such merit as may be assayed from the preceding section. If the district attorney may bring suit in behalf of the county, he may bring it where only part is concerned.
Appellant summarizes his answers to the several quoted statutes by saying that nowhere is found authority for a district attorney to bring suit in the chancery court in behalf of part of a county without authority of the board of supervisors. We have heretofore disposed of these contentions insofar as they attack the right of such official to bring all actions, Section 4392, in the proper court against all persons indebted to the county, Section 3923, or for injuries to its property, Section 4394. That suit was properly brought in the chancery court is hereinafter discussed.
There remains only the inquiry whether this suit on behalf of the county required precedent authorization by the board. Unquestionably, this is a suit on behalf of the county. But, is this a suit by the county on its behalf? Let it be supposed that all of the members of the board had been guilty of the illegal practices alleged. Would their consent to be sued be required, and if so, forthcoming? Had there been an illegal appropriation as denounced by Section 2944 those members only who voted therefor would be liable. Since a majority would be required to vote it, and a majority likewise required to authorize suit, it can be safely assumed that the legislature was aware of the resulting dilemma, and did not by Section 2955 contemplate suits where the interest of the individual member was adverse. In such case, there would not be involved any attempt by the board as such "to vindicate its rights." See Storey v. Rhodes, 178 Miss. 776, 783, 174 So. 560. Such view lends no encouragement to an officious intermeddling by authorized officers or taxpayers. See Code 1942, Sections 2872, 2944, wherein is indicated that, while the county and the board are mutually identified, the county and its interests may, by illegal act of the individual members, be arrayed against them.
Appellant makes a final stand upon the contention that in any event there is no chancery jurisdiction. The suit is against the member and his official surety. In this connection, Section 161 of our Constitution is pertinent. It provides "The chancery court shall have jurisdiction . . . of suits on bonds of . . . public officers for failure to account for . . . property received or wasted or lost by neglect . . ."
However, jurisdiction need not be grounded upon the constitutional provision alone if the bill states a case for discovery or injunction. Nor is it necessary to summon to our aid in the consideration that a multiplicity of suits is thus avoided. As above stated, discovery was sought as to the loss, expenses and outlays incurred by the rendition of unauthorized services to some fourteen named citizens of the county. Appellant insists that such a disclosure may not be compelled, and upon the ground that it would tend to incrimination. Our attention is not directed to any criminal statute which would visit upon appellant criminal punishment or penalty. That it might involve moral turpitude or even fraud is not sufficient if the act is not an indictable crime. Watts v. Smith, 24 Miss. 77. We find in the prayer for discovery additional basis for chancery jurisdiction.
That all the controlling legal principles may be settled, we consider finally the prayer for injunction even though answer to this question will not affect the issue of jurisdiction, already resolved. We are asked to take judicial notice of the expiration of the term of office of the appellant Shumpert on the first Monday of January 1944, wherefore so far as the record discloses he is not subject to restraint since he is no longer vested with power. In reply, appellee asks us to notice judicially his reelection and present incumbency. We need not probe our powers on this matter inasmuch as the bill, filed while appellant held the office, alleged such practices had been and were continued to be followed. See State ex rel. Whall v. Saenger Theatres Corporation, 190 Miss. 391, 200 So. 442. Moreover, the bill does not ask temporary or preliminary injunction but only upon final hearing. No injury could accrue to appellant by leaving this matter to abide the event of the hearing, whereas if the facts reveal its propriety a denial of the right may prove to have been prejudicial.
We have not rehearsed the many authorities cited to sustain the respective contentions which, in the absence of cases precisely in point, have furnished only analogies, made helpful only by attenuated reasoning. Inspection of these authorities will be made available by the Court Reporter. We have given them all painstaking care, a task augmented not inconsiderably by a failure of counsel to observe the suggestions of Rule 7(2) requiring an index of the propositions to be discussed, with supporting authorities. Cases successfully prosecuted under circumstances similar to those here presented seem either to have assumed the right to maintain such suits or to have ignored the question in the absence of specific attack. It is enough that we have culled from them and the applicable statutes a conclusion fortified by exigency and reason, and which upholds the decree of the learned chancellor overruling the demurrer.
Affirmed and remanded.
Anderson, J., took no part in this decision.