Board of Supervisors v. City of Brookhaven , 51 Miss. 68 ( 1875 )

Simrall, J.,

delivered the opinion of the court.

The city of Brookhaven brought suit against the board of supervisors of Lawrence county to recover $689.91, being on account of the pauper taxes assessed by the board for the year 1869, and which had been paid to the tax collector by the inhabitants of said city. The plaintiff claims that, because of special legislation, growing out of the formation and organization of Lincoln county, in part of the territory of Lawrence county, Brookhaven should recover back this money. The grounds taken by the counsel for the appellants, for the reversal of the judgment, does not require an investigation of the merits of the claim against the county of Lawrence; and since the appellee is not represented by counsel in this court, we are not disposed to consider any other questions than those specifically made by the plaintiff in error. On overruling the motion for a new trial, the whole case, as presented to the jury, was embodied in the bill of exceptions. The board of supervisors had by plea made the defense that the city of Brookhaven had not presented its demands as a creditor to the board of supervisors for allowance, nor was there evidence on the trial that the claim had ever been preferred before the board to be audited and allowed. Was that an element in the plaintiff’s right of action in the circuit court? Sec. 1381, Code 1871, enacts that “ all demands and accounts against the county shall be audited and allowed on due proof in term time,” and a warrant shall be issued on the county treasurer. This implies that the board shall scrutinize “demands and accounts.” But the decision of the board, if adverse to the creditor, shall not be conclusive against him. He may, under § 1383, appeal to the circuit court, embodying the facts and evidence in a bill of exceptions, or under § 1381, he may bring suit in the circuit court. This section does not intend that the circuit court shall be open in the first instance to any and all creditors of the county. The board is assumed by the statute to be fit and competent to investigate, allow and order payment of all just claims. The statute assumes that the board will deal fairly and conscientiously with the creditors of the county. But if it does not reach a correct conclusion in a given case, and the creditor feels dissatisfied, he may appeal, or he may sue in the circuit court. But this access to the circuit court is only granted to a creditor whose claim has been rejected by the board. The language is, “Any person having a just claim against any county, * * which the board of supervisors may refuse to allow, may bring suit,” etc. The statute does not intend that the county shall be unnecessarily vexed with, suits and costs, and, therefore, declares that every person who has a claim must first submit it to the investigation and decision of the board, and must pass through the board before he can obtain a standing in the circuit court as appellant or as plaintiff in an original suit. The words of the statute quite plainly import that meaning and have been so understood. In the well considered case of Board of Police of Attala County v. Grant, 9 S. & M., 77, the court considered the character and functions of the board of police (supervisors), in passing upon claims against the county, and concluded that “ for such purpose it was a court,” and, therefore, its decision must stand unless displaced in some mode prescribed by law. One of these modes, as held in County of Yalabusha v. Carbry, 3 S. & M., 529, was by appeal to the circuit court. The principles of that case have been followed repeatedly. See Arthur v. Adam & Speed, 49 Miss., 410. In Carroll v. Board of Police of Tishamingo County, 28 Miss., 48, it is said, the judgment of the board (allowing or disallowing accounts), “ like that of any other court, having exclusive jurisdiction over the subject matter and person, must be treated as final and conclusive * * until reversed, or vacated in some mode known to the law.” The board is the only court that can, “ in the first instance, take jurisdiction of the subject matter.” The person, therefore, who sues upon his “claim” in tbe circuit court under § 1384 of tbe code, must show, as a condition of his right to that jurisdiction, that he has exhausted his remedy before the board; when his claim has been refused, he may reopen it on its merits in the circuit court. The statute denies access to the circuit court in the first instance to creditors. Such is the general rule. But a creditor whose claim has been rejected by the'board, can implead the county in the circuit court, that is the exception.

It follows, that the .plaintiff must aver and prove the special facts which entitle him to sue in the circuit court. The demurrer to the plea ought to have been applied to the first material defect in the pleading. The declaration is faulty in omitting to aver that the claim was presented to the board of supervisors and rejected. The law imperatively requires the board to audit and allow all just claims; and it must be presumed, if the demand of the plaintiff was of that character, the board would have allowed it if it had been presented. No testimony was offered on the trial that the claim had ever been before the board for allowance.

Judgment reversed, and judgment in this court, applying and sustaining the demurrer to the declaration and cause, remanded for further proceedings.