Miller v. Tucker , 142 Miss. 146 ( 1925 )

^* Headnotes 1. Counties, 15 C.J., Section 196 (Anno); Construction of statutes in pari materia, 25 R.C.L., p. 1060; 3 R.C.L. Supp., p. 1439; 4 R.C.L. Supp., p. 1619; 5 R.C.L. Supp., p. 1363; 2. Counties, 15 C.J., Section 196; 3. Paupers, 30 Cyc., p. 1128 (Anno); 4. Paupers, 30 Cyc., pp. 1067, 1128 (Anno); 5. Highways, 29 C.J., Section 308; Statutes, 36 Cyc., p. 1151; 6. Counties, 15 C.J., Section 196; Highways, 29 C.J., Section 297; 7. Counties, 15 C.J., Section 102; 8. Counties, 15 C.J., Section 102; 9. Counties, 15 C.J., Section 196; Highways, 29 C.J., Section 297 (Anno); 10. Counties, 15 C.J., Section 196; 11. Counties, 15 C.J., Section 196; 12. Schools and School Districts, 35 Cyc., p. 867 (Anno); 13. Counties, 15 C.J., Section 196 (Anno); 14. Highways, 29 C.J., Sections 291, 297; On power of municipal body to employ attorney, see Note in L.R.A. 1917D, 240; 15. Counties, 15 C.J., Section 196; 16. Counties, 15 C.J., Section 196; Health, 29 C.J., Section 27; 17. Counties, 15 C.J., Sections 102 (Anno), 196; Statutes, 36 Cyc., p. 1002. These two suits were argued and submitted together, and are controlled by the same principles.

The state revenue agent brought a suit against the appellees in each case as members of the board of supervisors of Warren county, Miss. The appellees in one case were members of the board of supervisors from 1916 to 1920, and in the other case appellees were members of the board of supervisors from 1920 to 1924.

The suit involved the liability for allowances by the board of supervisors of various claims against the county. The validity of the allowances in many of the claims is based upon the failure of the board of supervisors to advertise for bidders, and in letting the contracts for the public work involved in the manner required by the statutes; it being alleged that many of these items involved contracts where the law required notice to be published to the bidders and the acceptance of the lowest and best bid to be submitted for such contracts. Other items in the bill, it is alleged, were paid by the board of supervisors where there was no legal authority to justify such allowances, and the revenue agent sued the members of the board of supervisors on their several bonds to recover the various amounts so allowed.

The decree of the court below was for the defendants, members of the board of supervisors, generally, but a small amount of the claim sued for was allowed in the decree to the revenue agent. The record before us is very voluminous, and it will be impossible to set out in detail all of the different items and accounts sued for. Wherever necessary for a proper understanding of the opinion, the claims and allowances will be referred to.

The defendants relied largely upon the case of Paxton v.Baum, 59 Miss. 531, construing section 346 of the Code of 1906, as it existed in the statutes at the time the cause of action there involved, arose. The appellant relies largely upon section 293 of the Code of 1906, section 346 of the Code of 1906, section 361 of the Code of 1906, section 369 of the Code of 1906, section 170 of the Constitution of 1890, section 341 of the Code of 1906, and chapter 142, page 184, and chapter 206, page 274, Laws of 1914, amending chapter 123 of the Laws of 1912, being sections 6660 and 6661 of Hemingway's Code. These sections will be referred to in this opinion hereafter.

In Paxton v. Baum, 59 Miss. 531, this court held that members of the board of supervisors are not liable on their bonds for an allowance made by the board of supervisors, where the allowance was authorized by law, although the board disregarded the provisions of the statute in making such allowance. It was there held that the board, in making an allowance against the county, was acting in a judicial capacity, and the members of the board were not liable on their bonds for an error or mistake if the money went to an object to which it could be lawfully applied, but held in that case that this rule did not apply where the members were making allowances to themselves for compensation, and the board could not act judicially where it was dealing with its own members, but that in other respects the members of the board were protected from personal liability and liability on their bonds. In the course of the opinion, the court there said:

"The question is as to the interpretation of the expression `object not authorized by law.' The objects to which money in the county treasury may be appropriated are designated by law, and it is not legally appropriable to any other purposes. If it is appropriated by the board of supervisors to some other object than is authorized by law, members are liable personally for it, unless they voted against such appropriation. It is for money appropriated to something for which the law does not permit it to be appropriated at all, in any way or under any circumstances, that members are personally liable. It is for a diversion of money from its legitimate objects, and not for appropriation to a proper object, although in an irregular or unauthorized manner, that liability is imposed on members personally. It is what the money is appropriated to, and not how it is applied, that furnishes the test of personal liability for it. `Object' signifies the thing aimed at, the end sought to be accomplished. If this is not the true interpretation of the language mentioned, members of the boards of supervisors would be liable personally for every mistake or error of judgment or of information as to facts where by money was appropriated even to proper objects, if not appropriated in strict accordance with law as to every circumstance attending it. Either members of the boards of supervisors are personally liable for every appropriation not made in strict conformity to law, or they are not liable except for a diversion of public money from authorized objects and its appropriation to such as are not authorized. The objects to which the boards may appropriate money are designated by law, and may be known to them; and, in all cases of doubt, they may resolve the doubt against the appropriation, and avoid risk of liability; and it may be supposed that for appropriations to objects not authorized by law, it was intended to make members of the boards of supervisors personally liable. But, in view of the well-settled rule of the common law that for errors or mistakes a public officer acting judicially or quasi-judicially is not liable, it could not have been the purpose of the legislature to make members of boards of supervisors personally liable for errors or mistakes as to how to act in matters committed to such boards by law, and as to objects for which an appropriation of money is authorized to be made by them. It is when they disregard the law as to the objects to which it has devoted the public money, and divert it to some object to which the law has not devoted it, that personal liability attaches."

The opinion discloses that the bond of the supervisors under review in that case was provided for in chapter 53, pp. 46, 47, Laws of 1876, in which chapter it was provided that it shall be the duty of all members of the board of supervisors in the several counties of the state before entering upon the duties of the office to execute a bond with good and sufficient freehold security in a sum equal to one and one-half per cent. of the amount of all the taxes assessed and levied upon the county the last year preceding the qualification of such board. It also provides that such bond shall be conditioned as the bonds of other county officers who are required by law to give bonds, and approved as other county officers' bonds, and the remedies on which shall be as provided by law on other official bonds. By section 309, Code of 1871, in force at the time of the decision in Paxton v. Baum, it was provided:

"All officers of this state required to give bond for the faithful discharge of the duties of their respective offices, shall, in addition to the special requirements in any statute pertaining to the office, give bond in the following form:

"`Whereas, the above bounden A B, was duly elected (or appointed) to the office of ____, on the ____ day of ____, for the term of ____, years from the ____ day of ____; wherefore the condition of this obligation is such, that if A B shall faithfully perform and discharge all the duties of the said office of ____, and all acts and things required by law, or incident to the said office, during his continuance therein, then the above obligation to be void, otherwise to remain in full force and virtue. But this provision shall be considered as directory only; and a failure to observe the form herein prescribed shall not vitiate any official bond; and all official bonds shall be valid and binding, in whatever form they may be taken, except so far as they may be conditioned for the performance of acts in violation of the laws or policy of the state.'"

It will be seen from reading this section that no specific liability was imposed. It provided that the officer should faithfully perform and discharge all the duties of the office which he assumed. By section 311, Code of 1871, it was provided that such bond might be put in suit in the name of the state for the use and benefit of any person injured by a breach thereof. By section 1752, Code of 1871, the assessor and collector, with their sureties, were liable and bound to pay on their bonds to the county or state the full amount of all sums lost to the state or county by the failure or neglect of such officers to assess or collect taxes.

By sections 1388 and 1389, Code of 1871, it is provided how the board of supervisors shall let contracts for public work, and it is provided in the concluding clause of section 1389, but "all such contracts shall be made and approved by the board in open session." By section 1394, Code of 1871, it is provided that no board of supervisors shall hereafter empower one or more members of the board or a person to make or let contracts in vacation or during the recess of the board, but all such shall be made or approved in open session; and that it shall be the duty of the board to accept the lowest responsible bid, and concludes, "and all contracts made in violation of any of the provisions of this act shall be void." This last section is brought forward in succeeding Codes, being section 2183, Code of 1880; section 344, Code of 1892; section 369, Code of 1906; section 3742, Hemingway's Code.

Section 293, Code of 1906 (section 3665, Hemingway's Code), reads as follows:

"Each member of the board of supervisors, before entering upon the duties of his office, shall execute a bond with sufficient sureties, but neither of them shall be surety for the other, payable, conditioned, and approved as bonds of county officers are required to be, in a penalty equal to five per centum of the sum of all the state and county taxes shown by the assessment rolls and the levies to have been collectible in the county for the year immediately preceding the commencement of the term of office of said member; 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 fail."

Section 338, Code of 1906 (section 3711, Hemingway's Code), provides that the board of supervisors shall direct the appropriation of money that may come into the county treasury, but shall not appropriate the sum to an object not authorized by law.

By section 343, Code of 1906 (section 3716, Hemingway's Code), it is provided that it shall be unlawful for the board of supervisors to allow a greater sum on any account, claim, or demand against the county, etc., and provides that, in illegal allowances by such board, it may be inquired into by the proper tribunal upon legal proceedings for that purpose whenever such matter may come into question.

Section 344, Code of 1906 (section 3717, Hemingway's Code), provides that if any person shall claim or receive from the board of supervisors of the county a fee or compensation not authorized by law, or if any member of such board shall knowingly vote for the payment of any such unauthorized claim or any appropriation not authorized by law, he shall be subject to indictment and conviction and for fine and imprisonment.

Section 346, Code of 1906 (section 3719, Hemingway's Code), reads as follows:

"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 liabe for costs in such case."

Section 361, Code of 1906 (section 3734, Hemingway's Code), reads as follows:

"All contracts by boards of supervisors for any public work not otherwise specifically provided for, where the amount of the contract shall exceed fifty dollars, shall be made upon at least three weeks public notice by advertisement in a public newspaper of the county, if there be one, and if not, by posting written or printed notices at the courthouse door and in each supervisor's district of the county, which notice shall distinctly state the thing to be done, and invite sealed proposals, to be filed with the clerk, to do the work, or such contract may be let out at the door of the courthouse at public outcry, as the board shall direct; and in all cases, before the notice shall be published or posted, the plans and specifications for the work shall be filed with the clerk and there remain; and the board shall award the contract to the lowest bidder, who will comply with the terms imposed by such board, and enter into bond with sufficient sureties, to be approved by the board, in such penalty as may be fixed by such board, but in no case to be less than the contract price, conditioned for the prompt, proper and efficient performance of the contract. The principal, or at least one surety on the bond, shall be a resident of the county in which the contract is let."

Section 363, Code of 1906 (section 3736, Hemingway's Code), provides for inspection of work before paid for where the contract price exceeds two hundred dollars and is less than five thousand dollars, and for payment as the work progresses on inspection, and estimates at a named percentage of the contract price not to exceed the value of the work performed under the contract, and in no event to exceed eighty-five per cent. of the total contract price until completion and inspection of the work. Section 364, Code of 1906 (section 3737, Hemingway's Code), provides that members of the board of supervisors shall not be interested in any contract let by the board.

Section 369, Code of 1906 (section 3742, Hemingway's Code), reads as follows:

"A board of supervisors shall not empower or authorize any one or more members of such board, or other person, to let or make contract for the building or erection of public works of any description, or for working public roads, in vacation or during the recess of said board; except in cases of emergency when a bridge has been washed away or damaged by floods that cannot be restored or repaired by the road hands within two days; but all other contracts shall be made and approved by said board in open session; and it shall be the duty of the board of supervisors to accept the lowest responsible bid for the erection or construction of all public buildings, bridges or public works, or for the execution of any other contract; and any bidder will be deemed responsible who will enter into bond, with sufficient sureties, according to law, to be approved by said board, in double the amount of the bids made by such bidder for the prompt, proper and efficient performance of his contract; and all contracts made in violation of any of the provisions of law shall be void."

Section 6660, Hemingway's Code (chapter 206, Laws of 1914), reads as follows:

"That all boards of supervisors, boards of school trustees of the common schools and all boards of mayor and aldermen, whether operating under a special charter or code chapter, shall purchase their supplies for public works, and for public buildings, and for public construction, upon competitive bids, letting contracts therefor for periods of not more than twelve months in advance; and no individual member of any such board shall, in any case, purchase any such supplies, nor shall any such board ratify any purchases made by any individual member thereof or pay for the same out of public funds; provided, that in case of emergency any such purchase, not exceeding one hundred dollars, may be made by an individual member without competitive bidding, after having submitted an itemized statement of the supplies needed, to at least two dealers in the supplies sought, and shall purchase from the lowest bidder; and provided, further, that the individual member so purchasing shall approve the bill presented therefor, certifying in writing thereon to whom such itemized statement was so submitted and the sum bid by the dealers not bought of it."

Judges McGOWEN, COOK, and ETHRIDGE are of the opinion that section 293, Code of 1906 (section 3665, Hemingway's Code), construed with section 346, Code of 1906 (section 3719, Hemingway's Code), and the other statutes above set out, make the board of supervisors liable on their bonds for any damage flowing to the county from the failure to comply strictly with the provisions of the law governing the board of supervisors, and that where the law makes the contract void for failure to comply with the law, such failure, coupled with such allowance in violation of the restriction imposed by law, constitutes illegal acts within the meaning of section 293, Code of 1906 (section 3665, Hemingway's Code); and inasmuch as this section has been enacted since the decision of Paxton v. Baum, supra, that the principle of that case is abrogated in so far as it holds that there is no liability on the bonds of the board of supervisors for illegal allowances, provided the money goes to an object authorized by law. In their opinion, the liability of a member of the board on his bond extends to all injuries resulting from illegal acts of the board of supervisors, even though the money may go to the object to which it is appropriated.

Judges ANDERSON, HOLDEN, and SMITH, are of the opinion that section 293, Code of 1906 (section 3665, Hemingway's Code), construed with section 346, Code of 1906 (section 3719, Hemingway's Code), does not extend the liability of the board of supervisors on their bond, and that the doctrine announced inPaxton v. Baum, 59 Miss. 531, is still the law; that it has not been changed by the statutes hereinbefore referred to. As the chancellor below held to the view entertained by Judges ANDERSON, HOLDEN, and SMITH, the judgment of the chancellor will be affirmed as to the allowances which were authorized by law even though the contracts were not made in accordance with the statute, and as to all such items the judgment of the chancellor is affirmed by judgment of this court notwithstanding the views of the other judges. These items make up a large part of the claim sued for in the present case, and were disallowed by the chancellor, and which the majority of the court thinks should not have been allowed to the revenue agent suing for the county. A majority of the court thinks that some of the allowances made by the board and approved by the chancellor are not authorized by law. One of the items sued for, which it is contended is unauthorized by law, is premiums paid for insurance policies on tornado insurance amounting to two hundred forty-five dollars and eighty cents. It is contended by the appellees, and the chancellor so held, that under the general jurisdiction section of the Code, section 307, Code of 1906 (section 3680, Hemingway's Code), giving the board of supervisors full jurisdiction over levees, highways, and various bridges "and all other matters of county police," that the board had jurisdiction to insure the property of the county against damage and loss from tornadoes.

By section 319, Code of 1906 (section 3692, Hemingway's Code), it is provided:

"The board of supervisors may have the courthouse, jail, and other buildings of the county, the furniture thereof, and the books of the county insured against loss by fire, and the cost thereof shall be paid out of the county treasury."

This section, in the opinion of the majority of the court, is the limit of the authority of the board of supervisors to insure the property of the county, and that the naming of loss by fire precludes losses from other sources; and in the absence of a specific statute the board of supervisors have not the authority to carry insurance. Insurance is made up of the risks and the necessary expenses and profits of an insurance company. When the county insures its property, it does not only insure the risk that it runs in case of loss of property or the value thereof, but also includes the overhead expenses and profits of the insurance business. The county is solvent, and in the absence of legislative authority it cannot incur this obligation or liability. We do not think the authority to carry tornado insurance can be implied from either of the sections referred to, and we hold that the members of the board of supervisors in paying out the county's money for this purpose was appropriating it to an object not authorized by law; and therefore the members are liable on their bonds for the amount so paid.

It is next contended that the suit against the board of supervisors for the amounts allowed themselves in excess of the amount allowed by law is recoverable in this suit. In the case ofPaxton v. Baum, supra, it was held that the board did not act judicially in allowing compensation to themselves, and that therefore they were liable for all excesses paid out to themselves. It further appears that the chancellor allowed more than the board of supervisors were entitled to receive, and judgment as to this item will be reversed and remanded for proper allowance.

It is next contended by the revenue agent that the board of supervisors had no authority for certain allowances made to the King's Daughters of Vicksburg, as the minutes of the board of supervisors did not show that such funds were appropriated to any object authorized by law, and that the board of supervisors had no specific authority to allow such sums. These sums were in addition to certain sums authorized to be paid to them by statute as a donation. The board of supervisors not only appropriated the sums authorized by chapter 265, Laws of 1908, and by Acts of 1912, page 363, chapter 317, but entered other varied allowances to the said organization known as the "King's Daughters," and that the sums paid in excess of the amount authorized by statute amounted to fourteen thousand nine hundred forty-one dollars and ninety cents. The board of supervisors undertook to defend and justify such allowances on the theory that they were used by the King's Daughters in the relief and support of the poor, and that inasmuch as the statute authorized the board of supervisors to support paupers that these appropriations were to an object authorized by law and fell within the protection of Paxton v. Baum, supra.

While it is true that under the statutes the board may support paupers at the public expense, still the board is not authorized to pay out public funds to the support of those who do not come within the class of paupers. It is provided in section 3567, Code of 1906 (section 6184, Hemingway's Code), that to entitle any pauper to support by the county he must have been a bona-fide resident six months prior to his application for support, and the settlement of the parent or parents shall entitle the children to a settlement. It is provided by section 3574, Code of 1906 (section 6191, Hemingway's Code), that whenever any member of the board of supervisors shall ascertain that there is a pauper in his district probably entitled to relief, it shall be his duty to examine into the pauper's right to support, and if he is satisfied that such pauper has a settlement in his county, and is unable to support himself, or is entitled to be supported or provided for by the county; he shall report the matter to the board of supervisors and provide him with emergency relief until the board may act. Before a person is entitled to be supported at the public expense, his right thereto must be determined by the proper authorities and the facts adjudicated by some competent authority. This duty rests upon the board of supervisors with certain exceptions, in which temporary relief may be rendered, and the pauper is not entitled to be supported and the funds not authorized to be paid out, until such facts are satisfactorily established by the agency created by law to determine those facts. The board cannot delegate this duty to the King's Daughters, or any other organization or person, as public funds cannot be devoted to a private object or purpose. No persons are entitled to be supported at the public expense except those embraced in the chapter on paupers. To allow money to a private person or organization, to be dispensed according to the will and judgment of such private person, uncontrolled by law, would be to take the taxpayer's property without due process of law contrary to section 14 of the state constitution, and to the Fourteenth Amendment of the constitution of the United States.

By section 3577, Code of 1906 (section 6194, Hemingway's Code), the funds to be used for the relief of paupers are to be raised by an assessment of the board of supervisors and collected as other taxes. Taxes can only be raised and used for public purposes. In Tallahatchie County v. Harrison, 75 Miss. 744, 23 So. 291, it was held by this court that the board of supervisors had no power to allow a physician's claim for medical services rendered by authority of the member of a board to an indigent sick person, and that it was not proper when the person was never declared a pauper by the board nor that he desired to be so classed and provided for by the county. In view of what we have said, it is wholly immaterial whether the King's Daughters actually paid out the money allowed them to the poor or not. There were no attempts of the board to find that the persons were, in fact, paupers, and that they came within the class authorized by law to be supported at the public expense. Therefore the judgment of the chancellor as to these claims should be reversed and the cause remanded.

What we have said with reference to the allowances of the King's Daughters applies with equal force to the allowances made to the Ladies of Charity. These allowances were made, according to the proof, for the purpose of buying transportation for poor persons coming into Warren county for treatment at the Charity Hospital, and who did not have the means of paying their expenses back home. There was no adjudication adjudging such person to be a pauper, and no charge made of the expenses so incurred in removing them to the county of their residence. They were clearly not entitled to the public funds, and the board of supervisors cannot appropriate public money for the mere accommodation of individuals even though they may be poor, and even though it may be good economy to remove them from county or city.

It is next contended that the allowances to J.E. Gorman, of two hundred twenty-five dollars per month, to commence June 1, 1920, as general foreman of the Warren county dirt roads, was illegal and unauthorized, and especially that all in excess of five dollars per day was unauthorized. It appears that in 1912 two different acts were passed by the legislature amending chapter 150 of the Laws of 1910. The first of these acts appears in the Laws of 1912 as chapter 258, and was approved on February 24, 1912; the second was approved on March 6, 1912, and appears as chapter 257. Each of these acts amends chapter 150, Laws of 1910, and have somewhat differing details, though each was addressed to the same general scheme, and were later amended and brought forward separately, and were finally merged again in chapter 276, Laws of 1920. The board of supervisors, in adopting this scheme of road work, adopted chapter 258 instead of chapter 257. By chapter 258, Laws of 1912, the board was limited in case a commissioner was employed to five dollars per day for his compensation, and this was limited to actual days employed; whereas chapter 257 did not place any limit upon the board of supervisors as to what they should do for the superintending of the work under that act.

The appellees contend that although the minutes recited the adoption of chapter 258 of the Laws of 1912, the legal effect of such order was to adopt the chapter as it had been amended by chapter 257, and chapter 257 was, in legal effect, an amendment of chapter 258. In other words, each of these acts recited the amendment of chapter 150 of the Laws of 1910, and, as a legal consequence, that the law which really was in force was the latter expression, and that the adoption of chapter 258 was, in legal effect, an adoption of that chapter as amended by chapter 257. The result is that chapter 257 of the Laws of 1912, being the latest expression on the subject, was in force until it was amended by chapter 177, Laws of 1916, and that the law was in force until the 8th day of April, 1916, when the legislature enacted chapter 172 purporting to amend chapter 258 of the Laws of 1912, but in legal effect amended chapter 177, Laws of 1916, enacted on the 21st day of March, 1916, and therefore remaining in force until the 3d day of March, 1920, when the legislature passed chapter 276, Laws of 1920, purporting to amend each of the said acts.

In the case of Lang v. Harrison County, 114 Miss. 341, 75 So. 126, we considered the effect of these acts, and reached the conclusion that chapter 172 of the Laws of 1916 was the latest expression of the legislature upon the scheme created by chapter 150, Laws of 1910. By this chapter 172, Laws of 1916, the board was authorized to work the public roads of any county or beat thereof by purchase of teams, implements, and material, and employment of labor on public roads, "and may do any and all things necessary to be done to work the roads, as herein provided, but all contracts for material and supplies shall be made on and after competitive bids for same." "The board of supervisors are hereby authorized in their discretion, if they consider it necessary and to the general interest of the county, to employ a competent person to serve as road commissioner, whose compensation shall not exceed five dollars per day for each day served in the actual discharge of his duties as defined by the board of supervisors of each county;" labor for said roads to be employed by the board of supervisors in case there be a commissioner to be employed by him. The provision with reference to the road commissioner is carried forward in chapter 276, Laws of 1920, with a limitation to five dollars for each day served in actual discharge of his duties. We think, therefore, that the employment of Mr. Gorman under the law in force at the time was an employment of the road commissioner, and that the board was limited to five dollars per day in fixing his compensation, and all money in excess of five dollars per day paid on said account was payment of public money to an object not authorized by law, and that the revenue agent should have been allowed to recover the compensation in excess of five dollars per day paid to him by the board.

We think, under the provisions of the law quoted above, that the board may do any and all things necessary, etc., authorize the board of supervisors to furnish the commissioner means of transportation and to pay the expenses necessarily incurred in attending to his duties as road commissioner. His salary could not exceed the amount fixed by law, but it would be necessary where the county is working the roads of the county under this plan to have a number of crews in different parts of the county, for the road commissioner to be in different parts of the county at frequent intervals, and would even require rapid movements, and providing for the expense of the system outside of his salary was proper, and this would include the power to purchase an automobile for his use.

The appellant next contends that the court below erred in refusing to allow him to recover the allowances made to O'Connor, Mallett, Powell, and Barber, who were employed by the board of supervisors, under the above chapter, to look after certain matters in the road working business. It was necessary and proper to have overseers, or superintendents of working crews, and the fact that these persons were employed under Mr. Gorman does not mean that they are doing the work that Gorman is expected to do as road commissioner.

It is next contended that the court erred in refusing to sustain the revenue agent's contention with reference to allowances to road commissioners under chapter 176, Laws of 1914, under which chapter the bond issue of five hundred thousand one hundred dollars was authorized and issued. The fact that the bonds were only for one hundred dollars more than five hundred thousand dollars mentioned, and that this adding one hundred dollars was for the purpose of enabling the commissioner to receive the compensation and expense provided for where the bond issue exceeded five hundred thousand dollars, is a matter over which the court cannot supervise the county authorities. The legislature provided that such expense could be incurred when the bond issue was more than five hundred thousand dollars. The legislature itself drew the line, and it is not for the court to say that the commissioners could not fix the issue, as they did here, so as to bring themselves within the allowances therein authorized. The chancellor's holding as to this item is affirmed.

It is next contended by the revenue agent that he should have recovered the moneys expended in building the garage. By chapter 242, Laws of 1920, the board of supervisors of any county was authorized to acquire grounds and buildings, or erect buildings on grounds owned by the county, to be used by the county in storing and preserving road machinery, trucks, teams, or other county property. The board must be the judge of the place where this building is to be erected and the character and location of same. The legislature has not restricted their discretion in this regard, and the chancellor will be affirmed as to this matter.

The revenue agent next contends that he should have been allowed to recover five thousand one hundred eighty-eight dollars claimed for the purchase of gravel from the Success Sand Gravel Company, of Vicksburg, Miss. His contention is that the highway commissioners could not make this contract because he alleges that one of the commissioners was an incorporator of the Success Sand Gravel Company. His proof as to this fact is that Mr. Williamson, one of the incorporators, who was also one of the highway commissioners, was a member when the board purchased the sand and gravel for the county for the use of the road, and was a corporator, but did not show that he still was such, and contends that he was forbidden by law to be interested in such contracts. The commissioners are agents of the board of supervisors in making these purchases, and it is not suggested that any member of the board of supervisors was interested directly or indirectly in the contract, and the chancellor was correct in holding that the revenue agent could not collect this item on the facts disclosed in the record.

It is next contended that the revenue agent should have been allowed to collect the moneys expended for gasoline and oil purchased, which were made without competitive bidding. These items are covered by rulings heretofore announced followingPaxton v. Baum.

It is next contended that the revenue agent should have recovered two hundred eighty-one dollars and eighty-four cents allowed to the Young Men's Business Club by the board of supervisors to reimburse for expenditures in having a county exhibit of agricultural products of Warren county at the state fair. It is admitted that there is no express provision in law authorizing the board to spend county money for this purpose, but it is insisted by the appellee that this could be justified by sections 3782 and 3783 of Hemingway's Code (Laws of 1908, chapter 103), authorizing the board of supervisors to establish a department of agriculture, the purpose of this department being to disseminate useful information among farmers and to develop the agricultural resources of the county. We think from a careful study of the act that it does not authorize the allowance, and that the revenue agent should recover this item.

It is next insisted by the revenue agent that he should have recovered an item of five hundred eighty-two dollars and fifty-five cents, sued for on an allowance to J.H. Culkin under warrant issued January, 1921, in payment of an automobile for the use of the superintendent of education, and also sixty-two dollars and eighty-five cents for insurance paid on such automobile. Under chapter 122, Laws of 1920, section 25, in counties where the assessed value exceeds thirteen million dollars, the superintendent of education may have a stenographer and assistant, or both, and his actual expenses incurred while attending to duties outside of the office may be allowed in the discretion of the board. In the providing of the expenses there is not authorized the purchase and upkeep of automobiles. There is also a special act, chapter 577, Laws of 1920, authorizing the board of supervisors of Warren county to pay the county superintendent of education a sum not exceeding seventy-five dollars per month in addition to his regular salary for his expenses while in performance of official duties so long as the county maintains its consolidated school system, and may, in addition, allow annually a sum necessary to defray his railway fare and hotel expenses in attending not more than two educational conventions in the United States. This act does not expressly authorize the allowances here made individually, and if it be construed so to do, it would violate clauses (o) and (p) of section 90 and section 91 of the constitution, which last section prohibits the legislature from enacting any law for one or more counties not applicable to all counties in the state

It is next contended by the revenue agent that he should have been allowed the recovery of the sum of eighty-four dollars and thirty-five cents, allowed E.S. Martin while a member of the board of supervisors, and the sum of sixty-three dollars allowed him within a year after he went out of office, at a time when he was prohibited by section 109 of the constitution of the state from being directly or indirectly interested in any contract of said district, county, or town, authorized by any law or order made by the board of which he was or may have been a member, and in violation of section 364, Code of 1906, on the same subject, and also in violation of section 1305, Code of 1906, making it a criminal offense to be so interested. We think the revenue agent should have been permitted to recover for these items.

The chancellor allowed an item of two hundred twenty-two dollars and twenty-six cents, allowed to Dr. Myers in December, 1920, as county health officer, for a trip to Washington to attend some meeting of a professional nature there, and there is a cross-appeal by the defendants as to this item. The appellees contend that it ought not to have been allowed to the revenue agent, as the warrant was properly allowed to the said Dr. Myers because it falls under the jurisdiction of the board under that clause giving the board jurisdiction "of all matters of county police." We think the chancellor properly allowed the revenue agent to recover this item, and his action in reference thereto will be affirmed.

It is contended by the appellees that although the allowances made to the King's Daughters and the Ladies of Charity may not have been in accordance with law, still the legislature ratified what was there done by chapter 704, Laws of 1924, printed in Local and Private Laws of Mississippi 1924, p. 194. This act reads as follows:

"Be it enacted by the legislature of the state of Mississippi that the acts of the boards of supervisors of Warren county, in sustaining the poor of the said county, and in expending money therefor, be, and the same are

It is next contended that the revenue agent should have been allowed to collect attorney's fees paid to the attorney of the highway commissioners for preparing bonds, giving advice to the commissioners, and preparing certified records, etc. It is contended by the appellant that it was not any part of the duty of the attorney for the highway commission to prepare such papers, and the board had no authority to employ an attorney to prepare such bonds, because it had a regularly retained attorney for the board of supervisors other than the attorney for the road commissioners, whose duty it was to prepare these papers and render these services. We are of the opinion that the payment of the account of this attorney of the highway commission out of the funds of the road district involved was proper. Chapter 176, Laws of 1914, expressly authorized the employment of an attorney, and does not fix the particular duties of the attorney, and it is contemplated that the expenses of the bond issue be paid out of the proceeds of the bond issue of the district or the funds of the district, and that it is not to be paid out of the general county funds; and, while the board of supervisors have no authority to employ an attorney other than its retained attorney, except in litigated cases, still that does not render what is done here illegal, because the board did have authority to employ the attorney here to aid the road commissioners, and we think it is contemplated that this attorney would attend to the legal matters involved in such bond issue. Therefore the attorney's fee was properly allowed by the board, and the chancellor will be affirmed as to this item.

There were allowances for office rent for the highway commissioners which we think should have been allowed to the revenue agent, as there was no authority under the act (chapter 176, Laws 1914) for the board to rent offices for the highway commissioners, who are agents of the board of supervisors under the act. regulating costs, charges, and fees of officers. Under clause (o), section 90, no special or local act can be passed creating, increasing, or decreasing the fees, salaries, or emoluments of any public officer, and such statute could not be given the effect contended for here.

A large number of school allowances were challenged because not made in conformity to law. It appears that the superintendent of education and the trustees of the agricultural high school and the members of the county school board adopted a system of getting the board of supervisors to pass an order allowing all expenses in conducting the agricultural high school, and in the erection of buildings and equipping school buildings, and in the purchasing of supplies for schools, and in the letting of contracts for wagons and teams for transportation of pupils in consolidated school districts, and for the repair of such property. The system adopted was that the superintendent of education, Culkin, would O.K. or approve all accounts, and when they were approved by him, they would be allowed by an order on the minutes of the board of supervisors. The minutes of these boards showed this arrangement to be entered into with the board of supervisors by the said other boards, and the allowances were made in this manner and were paid out of funds which would have been used in such payments, but for which the law provides the board shall issue warrants on the order of the trustees of the agricultural high school, and the trustees of the consolidated schools, and of municipal separate school districts in certain cases. In other words, there was a departure from the method fixed by law, but under the views above stated, with reference to the decision of Paxton v. Baum, there is no personal liability nor liability on the bonds of the board of supervisors. The same ruling covers the conditions as to all contracts made by the board of supervisors in vacation, and without complying with the law as to advertisements, etc. hereby, in all respects, validated, whether such support was for the poor in the county home or county poorhouse, or in the private homes, or through agency of the King's Daughters."

The revenue agent challenges the constitutionality of this act. As we have seen above, the act was without authority of law, there being no authority under the statutes in force at the time the allowances were made to pay out the money in this manner. Section 96 of the state constitution provides that the legislature shall never grant any extra compensation, fee, or allowance to any officer, agent, servant, or contractor for services rendered on a contract made when there is payment or part payment of any claim under any contract not authorized by law. Section 100 of the state constitution provides:

"No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the legislature from providing by general law for the compromise of doubtful claims."

When the board paid out the county's funds to an object not authorized by law a liability arose under section 346, Code of 1906 (section 3719, Hemingway's Code), to the county for such sums both against them and their bondsmen, and it was not within the power of the legislature to discharge such members by subsequent act undertaking to legalize what they then did in violation of the law, and which was by existing law a personal liability against themselves and their bonds. It also provided in section 87 of the constitution:

"Nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association."

The statute last referred to, is a general law and was a general law at the time of the passage of the local private act, and also at the time of making the prohibited allowances, and these sections of the constitution are violated by the said chapter 704, and it is unconstitutional and void.

It follows from what we have said that the judgment of the chancellor is affirmed in part and reversed in part, and the cause will be remanded, with directions to the chancellor to allow the appellant to recover those items held in this opinion to be unauthorized by law, and such allowances as made to the supervisors in violation of the provisions of law.

Reversed and remanded for a decree in accordance with thisopinion.