* Headnotes 1. Highways, 29 C.J., section 347; 2. Highways, 29 C.J., section 349 (1926 Anno). The appellee, Mills, filed a bill in the chancery court against Amite county to recover an amount he claimed *Page 233 the county was due him under a road construction contract. The county answered, denying the material allegations of the bill. Later Mills filed an amended bill by which he sought to recover from the county on a quantum meruit basis for the work done. The material allegations of the amended bill were denied by the county. A decree was rendered against the county in favor of the plaintiff for nine thousand two hundred sixty-four dollars and thirty-three cents from which judgment this appeal is prosecuted.
This cause was on a former day considered and reversed by this court, and judgment rendered for the county, but on suggestion of error being filed the judgment was set aside, the opinion withdrawn, and the cause remanded for argument before the courtin banc and has been considered by the court in banc de novo.
The facts necessary to an understanding of the controversy are as follows: Proceeding under chapter 145, Laws of 1912, as amended by chapter 176, Laws of 1914 (Hemingway's Code, sections 7158 to 7178, inclusive), the county let a contract for the construction of certain public roads in the county, and appellee, Mills, being the lowest and best bidder the contract was awarded to him, and he spend two or three years in the construction of the roads covered by the alleged contract, and received payments from time to time as the work progressed. Later a controversy arose, and Mills contended that the county had breached the contract, and he abandoned the work, and the county had another contractor to perform the work on said public roads. The county contended that Mills breached the contract and, as above stated, let the contract to another man.
The county contended in the court below, and here, that the alleged road construction contract between the county and Mills is void, because, under section 5, chapter 176, Laws of 1914 (section 7162, Hemingway's Code), under which chapter the board of supervisors was proceeding, the engineer failed to make an estimate of the cost of *Page 234 construction and maintenance of the highways therein embraced for each mile covered by such survey, and failed to report such survey and estimate to the road commissioners as was required by said statute, and that the making of such estimate and filing thereof with and the approval by the road commissioners and the board of supervisors was a mandatory requirement essential to the validity of the contract.
The following is a copy of the estimate made by the engineer for one mile of one of the roads embraced, and is an exact example of the character of survey and estimate of every mile of the roads to be built which the engineer made, and which was approved by the road commissioners and by the board of supervisors:
Embankment .............................. 2,955 cu. yds. Clearing and grubbing ................................... 2.4 acres Moving fence .............................................. 17 rods Culverts ...................................... ___________________ Bridges ...................................................... 1-30 Mining and loading ................................. 1,043 cu. yds. Spreading and rolling .............................. 1,043 cu. yds. Subgrading ......................................... 4,693 sq. yds. Hauling ................................. 1,043 cu. yds. — 2 miles.
The survey so made and the estimate so made by the engineer do not contain any estimate of the cost of the work either for each separate mile, or for each separate link as a whole, but is only an estimate of the work required to be done.
It is the contention of the county that this estimate is wholly insufficient, and that the making of the estimate and the filing and approval by the road commissioners and board of supervisors is essential to the validity of the contract under the statute above referred to, and rely upon Ellis v. Tillman, 125 Miss. 678, 88 So. 281. In that case the court considered this statute, and held it to be mandatory, quoting from the statute at page 685 of 125 Mississippi Reports (88 So. 282) as follows: *Page 235
"It shall be the duty of such commissioners, subject to the approval of the board of supervisors, to determine and fix what road or roads shall be constructed or constructed and maintained or maintained in such district or districts out of the proceeds of the sale of such bonds and the levy of such taxes; and it shall be their duty to let all contracts for the construction, or for the construction and maintenance or for the maintenance of such roads in the manner now provided by law for the letting of contracts for public work by the board of supervisors; and it shall be their duty to employ a competent engineer to survey and lay out such road or roads in such district or districts, as they shall determine upon, whose duty it shall be to make an estimate of the cost of constructing and maintaining such highway or highways for each separate mile covered by such survey, and report such survey and estimate to said commissioners before contracts are let for the construction or for the construction and maintenance of such highway or highways; which survey and estimate said commissioners shall have the power to adopt or reject and in the latter event to have another made; and when adopted, it shall be their duty to report the same to the board of supervisors, whose duty it shall be to order the clerk of said board to file the same among the records of the office, and spread the same on the minutes of the board and make an order adopting such survey and estimate so reported and adopted by such commissioners; all of which acts of said commissioners to be subject to the ratification or rejection by the board of supervisors."
The statute being mandatory, the failure by the engineer to have the estimate of the cost made and reported to and approved by the road commissioners and the board of supervisors, and spread upon the minutes, as required by the statute, renders the contract void.
It is next contended that, if the contract is void because of such failure to make said estimate and have it approved in the manner required by statute, nevertheless *Page 236 the appellee, Mills, should be allowed to recover for the work actually done on a quantum meruit basis; that the county having acquiesced in the work being done, and having made partial payments as the work progressed, makes it an implied contract, and the county having used the road so constructed, and having recognized the contract through its board of supervisors by making such payments, cannot now escape liability because of the failure to file the estimates and have them entered upon the records.
In our opinion this contention cannot be maintained, and this case is controlled on that branch of the litigation by SmithCounty v. Mangum, 127 Miss. 192, 89 So. 912, and the authorities referred to in that case. This being true, the appellee had no basis for recovery, and the judgment of the court below must be reversed, and judgment rendered here for the appellant.
Reversed, and judgment here.
ANDERSON, J., dissenting with opinion.
HOLDEN, J., dissenting orally.
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