American Oil Co. v. Wholesale Gro. , 138 Miss. 801 ( 1925 )

^* Headnote 1. Counties, 15 C.J., Sections, 377, 378 (1926 Anno). The Interstate Wholesale Grocers, Inc., filed a bill in the chancery court of Marion county seeking to cancel a lease made by the board of supervisors to the defendants, the American Oil Company et al., and set out in said bill that the complainant is a corporation, under the laws of Louisiana, authorized to do business in Mississippi, and that it is engaged in the wholesale grocery business in the city of Columbia; that the appellant the American Old Company is a corporation under the laws of Mississippi; that the defendant Hubbard is an adult resident citizen of Marion county; that defendant Robertson is also an adult resident citizen of Marion county; that the defendants Broom, Newsom, Daniels, Forbes, and Simmons are the duly elected, qualified, sworn, and acting members of the board of supervisors of Marion county, setting up the districts each member of the board represented.

It is further alleged that Marion county is the owner in its sovereign capacity, and for the use and benefit of the public, and especially of the resident citizens, inhabitants, and taxpayers of said county, of that certain plot or tract of land situated in the city of Columbia in said county and and state known as "Courthouse square;" that said courthouse square is three hundred and forty feet north and south, and three hundred and thirty feet east and west, and is bounded on the north by Meek alley, on the east by Honey alley, on the south by Bone alley, and on the west by Beef alley; that said land was conveyed to the county on May 22, 1821. The bill further alleges that said courthouse square had been set aside, dedicated, owned, and used as the courthouse square for more than one hundred years, and that during that period of time a courthouse and jail had been built thereon, and that said buildings had been thereon, and especially the courthouse building, for more than one hundred years.

It is further alleged that the courthouse square is not actually covered by the courthouse and jail buildings, and has been used during all these years as a public commons, where horses have been hitched by people coming to said town of Columbia on public business, and where people have been wont to gather for various and sundry public purposes, and where of recent years automobiles have been parked, and that said square has been used for many other purposes, useful and beneficial to the general public, and that no part of said courthouse square has ever been set aside or dedicated by law or used for any private use or benefit, or for the private use or benefit of any individual or association of persons.

The bill then alleges that on the 5th day of September, 1923, and without authority of law, the board of supervisors of said county did attempt to lease for a period of twenty-five years to said Robertson that certain strip of land in the city of Columbia, Miss., and east of the courthouse proper and west of Honey alley, and south of the traveled way from said Main street to Broad street, and south of Broad street, and being more particularly described as: Commencing at a point on the east margin of Honey alley one hundred and twenty feet north of Bone alley, the same being the point where the south margin of Broad street intersects the east margin of Honey alley, thence running west thirty feet, or to the west margin of Honey alley, the place of beginning, thence west forty feet, thence south sixty feet, thence east forty feet, thence north along said west margin of Honey alley sixty feet to place of beginning; that on said date said board of supervisors pretended to pass or adopt an order or resolution authorizing and directing T.S. Lewis, the then acting president of said board, to execute a lease to the said premises on behalf of the board of supervisors, being a part of said courthouse square, for a period of twenty-five years to said Robertson, at and for the sum of five dollars per month, a copy of which order is made an exhibit to the bill.

It is then alleged that the board of supervisors, in pursuance of the said order, attempted to execute a lease for and on behalf of said Marion county to that part of the said courthouse square already described above to said Robertson, and that said Robertson attempted to convey a two-thirds interest in and to his pretended rights to the defendant Hubbard, and that said Robertson and Hubbard attempted to convey their pretended rights in and to said lease to the defendant the American Oil Company; all of which instruments of conveyance being made exhibits to the bill. It is then alleged that said order and pretended lease are absolutely null and void because the board of supervisors did not have power to make a lease to the said property; that said lease was not made to the highest bidder, etc.

The bill then alleged that complainant was the owner of a certain lot of ground described in the bill which faces the courthouse square; that on said lot complainant has a large frame building, in which it conducts a grocery and grain business; that complainant is a large taxpayer of the county, and charges on information and belied that the American Oil Company contemplated immediately or in the near future the erection of a gasoline filling station on said premises, where it proposes to deal in gasoline, oil, etc., and other inflammable materials; and that, if the American Oil Company is permitted to erect the same, it will cause great financial injury to the complainant. It is further alleged that the erection of any kind of a building upon the described premises will increase complainant's insurance rates and fire hazard, and that, if said American Oil Company is not enjoined from so doing, and if said pretended lease is not canceled and said property restored to Marion county as a part of the courthouse square, unincumbered by such lease, complainant will suffer great and irreparable damage and injury. The bill then set forth that the petitioner had requested the board of supervisors for authority to bring suit on behalf of the county to cancel said lease, which authority the board of supervisors refused to give.

The defendant the American Oil Company answered the bill, and admitted the allegations as to its lease and purpose to erect a building, but asserted the validity of said lease, and denied that complainant would be injured or that its hazard or insurance rate would be increased, and challenges the power of the complainant to substitute its judgment for that of the board of supervisors, and alleges that the order of the board of supervisors conclusively adjudicates the fact, and avers that said plot of ground so leased was not then being used for any public purpose, and avers that the board of supervisors of Marion county is authorized and permitted by law, in their discretion, to lease any lands belonging to said county, when and for the time the same may not be required or needed by said county for any public or governmental purpose, and denies the allegation of the inadequacy of the consideration of the lease, and denies that the bids were not properly let in accordance with law, etc. The board of supervisors passed an order refusing to recognize said suit, and paid no attention to it.

The chancellor sustained the bill, and overruled the motion to dissolve, from which judgment this appeal is prosecuted.

When the cause reached this court for consideration, we raised the question as to whether the bill could be maintained without authority from the board of supervisors, and this question has been fully and ably briefed.

Section 309, Code of 1906 (Hemingway's Code, Section 3682), in its concluding part provides: "But suit shall not be brought by the county without the authority of the board of supervisors, except as otherwise provided by law."

We have found but two instances in which a private citizen is authorized to bring suit.

Section 293, Code of 1906 (Hemingway's Code, section 3665), under heading "Bond and its effect," provides for a bond by each member of the board of supervisors, and among other things provides:

"And such bond shall be a security for any illegal act of such member of the board of supervisors, and recovery thereon may be had by the county for any injury by such illegal act of such member; or any taxpayer of the county may sue on such bond, for the use of the county, for such injury, and such taxpayer shall be liable for all costs in case his suit shall fall."

The injury which this section provides for is the injury to the county resulting from an illegal act of a member of the board of supervisors. The bill here does not present any injury to the county as such by the act of the board of supervisors; conceding for the purpose of the argument only that such act was illegal, the section does not authorize any taxpayer to bring any action against the county as such. The action here brought is against the individual members of the board of supervisors, nor for an improper exercise of their powers and duties, but for illegal acts which they are not authorized to perform or which they failed to perform in the way provided by law to the hurt of the county as a county, and not for injuries which may result to particular persons.

Section 346, Code of 1906 (Hemingway's Code, section 3719), provides: "If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person who is a taxpayer who will sue for the use of the county, and who shall be liable for costs in such case."

The bill does not state a case under this section because the county has not appropriated any money to an object not authorized by law, and has not by its act created any obligation by the county to pay out any money in the future.

It is clear that the bill does not come under the provisions of either of the above sections.

It is a familar rule that, where the law specifies conditions upon which an action may be maintained or a thing done, the naming of certain things will by implication exclude the things not named under the rule "expressio unius est exclusioalterius."

It would be manifestly confusing to public business and troublesome to the officers charged with the administration of public affairs if any citizen of a county may at any time challenge the legality of the actions of the board of supervisors or of any of its contracts. Where the board undertakes to impose a burden upon a citizen without authority of law, he may then contest the legality of the action, not on behalf of the county, but to vindicate his own rights if he be affected by such action; that is to say, if he would have an additional burden imposed on him by such act of the board. But this does not authorize him to litigate contracts made by the county in which he has no property or financial interest. Prior to the enactment of the clause of section 309, Code of 1906, (Hemingway's Code, section 3682), above set out, a citizen who was a taxpayer could in certain cases intervene to protect the public rights. But the law has, as we think wisely, provided that the board of supervisors should have discretion to say when a suit should or should not be brought in behalf of a county where the law did not expressly provide to the contrary, and before a suit can be brought on behalf of the county the statutory authority must be pointed out authorizing it. We have statutes in certain cases that give to certain officers rights in particular cases to bring such suits, but, where no provision is made otherwise, the board of supervisors have the sole control of bringing such suits. In our opinion this status makes for the public welfare and for the stability of a county's business operations. A county cannot be harassed by suits brought by that class of benevolent citizens who feel called on to intermeddle by way of lawsuits with any action taken by the county authorities which does not meet with their approval.

In our view the suit here brought is unauthorized, and the judgment of the court below will be reversed and the appeal dismissed.

Reversed and dismissed.