State v. Wall , 98 Miss. 521 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

The appellee, Wall, was indicted as road contractor of the fourth district of Carroll county, under section 4473, Code 1906; for neglect of duty as such contractor in failing to keep one of the public roads in his district in repair as required by his contract and bond, to which Indictment he interposed a demurrer, which was overruled by the court. There was then a trial, resulting in a verdict of acquittal; the court instructing the jury to return such a verdict on the ground that the order of the hoard of supervisors awarding appellee the. contract, and the contract itself, was void, because the publication of notice to prospective bidders was illegal, three -weeks not having intervened between its first publication and the time fixed at which the contract was let. From this-judgment of acquittal the state prosecutes this appeal.

The necessary facts to be stated are as follows: At the November meeting, 1904, the board of supervisors, by resolution adopted chapter 119 of the Acts of 1900,, providing for working the public roads by contract; and. at the January meeting, 1907, the board and the appellee, as such contractor, mutually agreed to come under the provisions of sections 4465 to 4474, inclusive, Code 1906, which also provides for working the public roads-by contract, and an order to that effect was entered on the minutes of the board, which action of the board and contractor was authorized'by section 4475 of the Code. At the December meeting, 1907, the public roads of the county were reclassified and- relinked, and plans and specifications prepared in accordance with law, by which they were to be worked for a term of four years, beginning with the first Monday of March, 1908, and an order made directing the clerk of the board to give notice by publication, as required by law, that at the January meeting, 1908, bids would be received and contracts let for working such roads, which notice was published legally, and at the January meeting contracts were awarded for the roads in district two, and all bids for the other districts were rejected; the order as to districts, one, three, four and five being in this language:. “ Arid it further appearing that there were no bids for working" the roads of districts Nos. three and five, it is therefore ordered that the awarding of the contracts for districts one, three, four and five be continued until first Tuesday in February, 1908, and that the clerk of the board be directed to give publication of notice to prospective bidders to file their sealed bids with the clerk on or before twelve o’clock of said first Tuesday of February, at which time said sealed bids will be opened by the board and the contracts awarded by said board, if any of said bids are satisfactory, and if not the letting of said contracts will be offered at public outcry to the lowest bidder at the courthouse in the town of Vaiden,'Mississippi. The board of supervisors reserves the right to reject any •and all bids.” Attempting to comply with this order, the clerk published the notice therein directed in three issues of a weekly newspaper in the county, the first publication being in the issue of January 18th, and therefore within less than three weeks of the first Tuesday of February, the time fixed for receiving bids and letting "the contracts. Appellee filed his sealed bid, and at the time named in the notice was awarded the contract for the fourth district, and filed the bond required; he being the lowest and best bidder.

The court is asked to pass on the question of the correctness of the action of the court below in overruling the demurrer to the indictment. The authority of this •court to entertain appeals by the state in criminal cases, and the limits of such authority, are fixed by section 40, ■Code 1906, which is as follows:

“The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a •criminal cause in the following cases:

“ (1) From a judgment sustaining a demurrer to, or a motion to quash, an indictment, or an affidavit charging •crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.

“(2) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but' in such case the ■appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the supreme court shall nevertheless decide the question of law presented.

“(3) From a ruling adverse to the state or municipality in every case in which the defendant is convicted ••and prosecutes an appeal; and in such case the whole record shall be carried before the supreme court on the-direct appeal, and the case shall be treated as if a cross-appeal had been formally prosecuted by the state. All questions of law thus presented shall be decided by the supreme court.”

Under paragraph one of this statute the supreme court is authorized to review the judgment of a circuit court sustaining a demurrer to an indictment, but not one overruling one thereto, as is the case here; and neither paragraph two nor three of the statute authorizes a review of this question, because by the provisions of the former the judgment appealed from must be one of acquittal, deciding a question of law adversely to the state, and by the latter a judgment of conviction, appealed from by the defendant, where there has been a ruling-adverse to the state. So it is clear this is purely a moot question, which this court is without authority to determine.

The other question involved, whether the court erred in instructing the jury to acquit the appellee, is, under paragraph two of this statute, properly before this court, because there was a “judgment actually acquitting the defendant, where a question of law has been decided adversely to the state,” which is whether the testimony offered tended to establish the guilt of the appellee; or, putting the concrete case, whether the appellee’s contract with the county to work the roads of district four is void, because three weeks did not intervene between the first publication of notice to bidders, and the time-set at which such contract was let.

.Section 4465, Code 1906, provides that contracts for working the public roads shall be let as other public contracts, “as provided in sections 361 and 362 of this Code, except that the board shall have the right to reject any and all bids,” etc.; and section 361, that where the amount of the contract for public work exceeds fifty dollars it shall be let “upon at least three weeks’ public notice by advertisement in a public newspaper of tbe county,” etc.; and section 362 prescribes what the notice so published shall contain; and section 1607, that “when, publication shall be required to be made in some newspaper for three weeks, it shall be. sufficient to publish once each week for three weeks, even though there be-not three weeks between the first and last publication, but there must be three weeks between the first publication and the day of the appearance of the party, or-other things for which the publication shall be made,”' etc.; and section 369, that “all contracts made in violation of any of the provisions of law shall be void.” Under the provisions of these statutes it takes no reasoning to-demonstrate that, under the publication of the notice in question (if required by.law to be made), it is void,, because less than three weeks intervened between its first, appearance and the February meeting .of the board. This is too patent for argument; and so is it that, if the-publication of the notice (if required to be made) is illegal and void, the order of the board awarding the contract to appellee is void, for section 369, supra, so expressly declares, as construed in State v. Vice, 71 Miss. 912, 15 South. 129.

And it is equally as plain that the publication of a new notice for the February meeting was required, for the one published for the January meeting was functus officio. In obedience to it, bidders had appeared at that meeting' and filed their bids, all of which had been rejected by the board; and for the purpose alone of calling-for other bids the matter was continued to the February meeting, and the clerk ordered to publish the necessary-notice to prospective bidders. This is not a case where-bids were received at one meeting and not acted on, action thereon being continued until the next meeting.

It follows from these views that the case is affirmed.

Affirmed..