McKinnon v. Gowan Bros. , 127 Miss. 545 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is a suit at laAV to recover against the trustees of an agricultural high school and enforce a mechanic’s and materialman’s lien against the agricultural high school buildings for their construction and repair.

From the amended declaration of the appellees it appears that the school authorities of Attala county established an agricultural high school and a parcel of land was acquired in the name of the trustees of the school. A dormitory, Avhich, for convenience, may be styled “dormitory No. 1,” Avas erected and completed Avith the exception of the top story. This building Avas paid for from funds, donated in consideration of the location., of the school.

Thereafter, in the year 1919, the trustees of the school contracted Avith the appellees to furnish the top story of dormitory No. 1, and to erect an additional dormitory AA-hich may be called dormitory No. 2.

Thereupon appellees completed the Avork on dormitory No. 1 and erected and completed dormitory No. 2, furnishing both labor and materials necessary to accomplish this.

The county having declined to pay for the work and materials, the appellees have sued the trustees of the school for the alleged value of the work done and materials furnished, and for the enforcement of the mechanic’s lien on the building's, to satisfy their claim.

The circuit court adjudged the validity of the claim and the liability of the buildings to sale in satisfaction of the mechanic’s lien, from which judgment this appeal is taken.

The appellants demurred to the amended declaration, assigning many causes of demurrer, among which was one to the effect that the property sought to be subjected to the lien is county property and that it is not subject to a mechanic’s lien.

The demurrer was overruled, and we do not deem it necessary to go further than to consider this one cause of demurrer.

An agricultural high school, under the laws of the state of Mississippi, is a county institution, and such property as may be required for its proper operation is provided by county or is donated and belongs to the county. A dormitory is required before the state contributes to the support of the school, and it is a part of the school property.

In the instant case the title to the property was taken in the name of the trustees of the school, which was in effect, for all practical purposes, a conveyance to the county.

Dormitory No. 1 was erected and paid for and was county property. The trustees deemed it necessary to make certain additions to the top floor, and to provide an additional dormitory. Under the laws prior to the year 1920, the board of supervisors was authorized to make a tax levy for the support and maintenance of the school, and had the power to provide funds by means of a bond issue for the erection of buildings and the equipment thereof.

It does not appear in the record that the board of supervisors had provided funds for the completion of dormitory No. 1 or the erection of dormitory No. 2. The trustees and the contractors were presumed to know the law- which governs in the matter.

Without giving consideration to whether or not the trustees of such a school may be sued generally, as such, to obtain a money judgment, it is sufficient to say that no fund had been created from which to pay the appellees’ demand, and these buildings, being the property of the county, are not subject to sale to satisfy the'Claim of a mechanic or materialman. 18 R. C. L. pp. 881, 882, and United States Fidelity & Guaranty Co. v. Marathon Lumber Co., 119 Miss. 802, 81 South. 492; Panola County v. Gillen, 59 Miss. 198.

The board of supervisors possessed the sole authority to provide funds for the purpose of making these improvements, and not having done so, the contractors were presumed to know that the trustees were attempting to make a contract for work for the payment for which there was no available fund, and therefore there can be no judgment against the trustees in their official capacity. See Thompson v. Agricultural High School, 117 Miss. 621, 78 So. 547.

The legislature of 1920, by chapter 159, acts of that year, gave the boards of supervisors authority in their discretion to levy a tax for the building, repairs, and equipment of agricultural high schools, as well as the purchase of suitable lands or buildings, or both, or for the payment of debts theretofore created for any of said purposes.

We do not consider at this time the sufficiency of the organization of the board of trustees or the validity of the contract made by thém to justify the board of supervisors in its discretion to make a levy under the act of 1920 for the payment of appellees’ demand, because no such levy has been made, and such questions are not before this court.

It appears that the county accepted the work done and is using both dormitories for county purposes, and that the county authorities may be without authority to make a levy for the purpose of paying the claim, and that the law will not subject the buildings to the payment of the claim.

From the record it seems to be the wish of the authorities to pay for the improvements being enjoyed by the county if authority exists or can be obtained to justify such a course. In such situation the most certain and speedy relief can be found in the legislature.

The judgment is reversed, and the cause dismissed, without prejudice to any right that may accrue under chapter 3.59, Laws of 1920.

Reversed and dismissed.