Causey v. Phillips

*893 Alexander, J., delivered the opinion of the court. Appellant filed his bill against Joe B. Phillips and the surety upon his bond as Secretary of the State Board of Barber Examiners, for the alleged misapplication of funds of such board. The right of the State Auditor to bring the suit was challenged by demurrer and the bill dismissed pursuant thereto. The State Auditor is ‘ ‘ ex-officio the chief inspector and supervisor of public offices and public institutions.” Code 1930, section 3747. This section was amended by Laws of 1938, ch..l57, so as to add the following: “including all state boards and commissions handling public funds.” Code 1930, section 3753, as amended by Laws 1938, ch. 157, authorizes the State Auditor as chief inspector “to examine into all of the financial affairs of every state office . . .,” and “if such examination discloses any amount shown to be due the .■ . . state ... or other body by any officer or employee . . .” the chief inspector, after notice, “shall institute the necessary proceedings ... to recover any amounts shown to be due the . . . state ... or other body by such officer or employee, . . .” It may be interesting to follow the reasoning of appellant by which liability to suit is sought to be founded upon a classification of the Board of Barber Examiners as a “body” within the meaning of the act. So, a discussion may be undertaken as to the significance of the requirement in the amendement to the act creating this *894 board (ch. 176, Laws 1938), whereby power is given to the Governor in his discretion “from time to time to require an audit of the accounts of the board.” We decide neither of these questions for the reason that the members of the Board of Barber Examiners are state officers, and their offices are state offices. See Adams v. Williams, 97 Miss. 113, 52 So. 865, 30 L. R. A. (N. S.) 855, Ann. Cas. 1912C, 1129, in which the treasurer of a board of levee commissioners was held to be such officer, and his bond an official bond. The Board of Barber Examiners was created by the legislature under the police power of the state, and its purpose is to promote the health of the people of the state. Clark v. State, 169 Miss. 369, 152 So. 820. The organization and composition of the board are prescribed by the act; its members are appointed by the Governor for a period of four years and removable only for cause; the board is required to elect a president and a secretary. Whether the latter is a member of the board is not shown, but this is immaterial since in any event he would be either a public officer or employee. Moreover, the secretary is required to execute bond in a fixed amount payable to the state; all funds are to be deposited in a depository, as prescribed by Code 1930, section 7179, and as required of other state boards and institutions; it is integrated as to rules of health with the regulations- prescribed by the State Board of Health; all of its records are made “public records” and as such “shall be open to public inspection at all reasonable times”; members of the board are authorized to “enter upon and inspect any barber shop or barber school at any time during business hours,” Laws 1932, ch. 118, sec. 4; annual financial reports must be submitted to the Governor and tp the State Auditor. Other regulations of and limitations upon its powers indicate that it exercises part of the sovereignty of the state, and that it is not a private body, with any independent control over its funds nor any private rights therein. *895 It is manifest, therefore, that the appellant has the right to maintain suit upon the bond of the secretary of the board. The demurrer to the bill ought to have been overruled. Reversed and remanded.