Jones v. Little ( 1923 )

Holden, J.,

delivered the opinion of the court.

The appellee, J. A. Little, as a resident taxpayer enjoined the appellant chancery clerk from issuing Avarrants in payment for a bridge erected by J. J. Mangum across a stream in district 3 of Smith county, and from a decree of the chancery court making the injunction perpetual this appeal is prosecuted.

The question involved in the case is whether or not the order of the board of supervisors, allowing for the payment of the bridge out of the maintenance fund of district 3 the amount due Mangum for the construction of the bridge, was void; it being contended by the appellee that the order making the allowance was void, because it violated chapter 326, Laws of 1920, in that it “incurred an indebtedness” without sufficient money being in the particular fund from Avhich the indebtedness was to be paid. It appeared from the record that at the time the order was made by the board there was not sufficient money in the particular fund out of Avhich it was provided the amount should be paid.

The appellee opposes this view and urges the allowance was valid, even though it was the incurrence of an indebtedness to be paid out of a fund which at that time was insufficient, because of the enabling act granting such authority as appears in chapter 634, Laws of 1922, Avhich provides as follows:

“Smith County May Pay J. J. Mangum for Bridge.

“Section 1. Be it enacted by the legislature of the state of Mississippi, that the board of supervisors of Smith county, Mississippi, are hereby authorized in their discretion to pay J. J. Mangum the sum of four thousand, seven hundred seventy dollars in payment of a bridge constructed by the said J. J. Mangum across Ocohay creek on the Mize and Raleigh road, said amount to -be paid out of any proper funds at the disposition of the said board of supervisors.”

It is well to give here a brief statement of the matter leading up to the last-named legislative act. Mangum erected the bridge for the supervisors of Smith county under a void contract, as held by this court in Board of Supervisors v. Mangum, 127 Miss. 192, 89 So. 913. Following this, it seems that the board was satisfied with the work performed by Mangum and desired to pay him, but could not do so since the contract was void, and to pay for the bridge would have been without legal authority; so the last-named enabling act was passed in order that the amount due Mangum could be legally paid to him by the board.

Following this, the allowance was made by the board and warrants ordered to be issued at some time in the future when sufficient money to pay them would be placed in the fund of that district, out of which the allowance for the bridge was to be paid. But a,t the time the board made the order there ivas not sufficient money in the fund against which the allowance was made, but it was expected, and it became true, that sufficient money would come into that fund later on when the taxes were collected.

Now the precise question presented for our decision is whether or not the legislative enabling act of 1922 intended to authorize the incurring of the debt even though there be at the time insufficient money in the designated fund with which to pay it. If this act be so construed, then it would be in conflict with the said chapter 326, Laws of 1920, which provides:

“That no warrant shall be issued or indebtedness incurred by any county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness,” — and the enabling act would have the effect of repealing the 1920 act to the extent indicated; and it would necessarily follow that the allowance made by the board in this case would be valid.

After due consideration we reach the conclusion the enabling act of 1922 did not intend to contravene the said general law, chapter 326, Laws of 1920, with reference to issuing warrants or incurring indebtedness unless sufficient funds be on' hand at the time out of which the indebtedness could be paid. We are convinced the legislature in the -1922 act intended to go no further than to authorize the board to make an allowance with which to pay for the bridge “out of any proper funds at the disposition of the said board of supervisors.”

The act merely intended to authorize the board to pay for the bridge, or incur the indebtedness for it, “to be paid out of any proper funds (then on hand) at the disposition of the board” at the time the order of allowance was made. It did not authorize the incurrence' of the debt regardless of whether sufficient funds were on hand; nor did the act, as contended by appellant, intend to create a debt or a contract between the board and Mangum; or, to put it in another way, the legislative act by itself did not incur an indebtedness of the county to Mangum, because the act provides it shall be in the discretion of the board to incur the debt and to pay Mangum the amount of money due him for the bridge. Therefore the order of the board was void as being in conflict with the provisions of the said chapter 326, Laws of 1920.

Our decision is confined alone to the one question above; except we also decide now that there is no merit in the point made' by tbe appellee that sections 7134 and 7135, Hemingway’s Code, c. 170, Laws of 1916, are involved, and that the only remedy the board had was to take over the bridge under the authority of these sections. This method of acquiring private property by the board is independent and has no connection whatever with the question of the acquisition of the bridge by the board in this case.

The judgment of the lower court is affirmed.

Affirmed.