Honea v. Board of Supervisors

Cooper, C. J., delivered the opinion of the court.. — 178 — This is an action of mandamus to enforce the payment of several warrants held by the plaintiff, which for convenience may be classified as follows : First, warrants issued in 1867 pursuant to orders of the board of police (now supervisors), for the salary of the probate judge of the county—these warrants are without the official seal of the clerk, but signed by him as clerk of the board; second, a warrant issued by the clerk of the board in 1867 without any order of the board, for the payment of the salary of the probate judge; third, warrants issued by the clerk, in pursuance of a general order of the board, in lieu of certain scrip before that time issued and circulated by the board as money. It is settled by several decisions of this court that the right of a party to maintain mandamus to enforce the payment of a claim against a county must be founded on a judgment of the board allowing the claim, and not upon the warrant, which is but the order or authority to the fiscal officer to pay the judgment awarded to the creditor. Polk v. Supervisors, 52 Miss. 422 ; Arrighi v. Supervisors, 54 Miss. 672 ; Klein v. Supervisors, 58 Miss. 540. The warrant performs two functions. First, that of an authority to the fiscal officer to pay the amount to the holder, and secondly, as a voucher to the officer in his settlement with the boards of supervisors. But these warrants are not the judgments of the board, and are neither the foundation nor the measure of the rights of the creditor, who must sustain his petition for mandamus by the exhibition of a valid judgment of the board, and who, doing this, is entitled to its enforcement regardless of any informality in the warrant issued for its payment. Though claims against the counties have in almost all instances been required to be passed on by the county board before they could be paid by the treasurer, a different rule was declared in reference to the payment of the salary of the probate judges of the several counties by article 3, page 424, of the Code of 1857, which provides what salary shall be paid to each judge, and that “the boards of police shall assess sufficient county taxes to provide for the payment of the said salaries, and the receipt of the judge shall be á sufficient voucher to the treasurer therefor.” This — 179 — provision relieved against the necessity of presenting to the board this particular claim against the county, since its amount was fixed by law, and all departments of the government took notice of the person who filled the office to which the salary attached. But there was no reason why the incumbent of the office might not present his account, which still was a claim against the county, to the board and have it allowed as other claims, and since this was done, as to the salary of the judge, for which the warrants of the first class were issued, we approve the action of the court in awarding mandamus for the payment of the judgment on which they were issued. The absence of the seal of the court from the warrants detracts nothing from the validity of the judgments on which they were issued. So long as the Code of 1857 was in force, the treasurer of the county might, upon receipt of the judge, pay the salary due, but after the adoption of the constitution of 1869, in ,which the judicial system of the State was remodeled, there was no such office as that of judge of probates, and the Code of 1871 omitted the provision for the payment of the salary of such judge, and after its adoption one who had filled that office, and to -whom the county was indebted on account of his salary, was put to the necessity of presenting his claim to the board of supervisors for allowance, as other creditors were required to do. The Code of 1857 permitted the judge to have his claim paid upon receipting to the treasurer therefor, but one who failed to avail himself of this privilege while the law was in operation was, by its repeal, left to his remedy as a general creditor. The Code of 1857 did not contemplate that a warrant should be issued for the salary of the probate judge, but that the treasurer, knowing the amount of the salary and the person by whom the office was filled, should, upon the mere receipt of the judge, make payment of the salary due. The action of the clerk in issuing the warrant for the salary of the judge, without an order of the board of police, did not change the character of the claim; there was no authority for the warrant, and after its issuance as before, the judge might have collected his salary by receipting to the treasurer, or he might have presented his claim to — 180 — the board for allowance. Having failed to receive payment from the treasurer during the operation of the law, and having failed to procure an ‘order allowing it by the board, he cannot maintain mandamus to enforce its payment. The history of the warrants of the third class is this: On February 12, 1866, the board of police made an order authorizing the president and clerk of the board to issue warrants in certain specified denominations to the amount of fifteen thousand dollars, which warrants the board declared should be receivable for all dues to the county. On January 10, 1867, an order was made by the board directing that the warrants or scrip thus issued should be receivable for all taxes, and this order recites that, “ upon examining the settlements as made by the president of this board, with the clerk in vacation, in regard to the issuing of the scrip of the county in pursuance of an order of this board, it appeared to the satisfaction of the board that just, legal, and perfectly authenticated vouchers had been produced for the full amount of county scrip which had been turned over to the clerk by the president of this board, in pursuance to an order of this board to that effect. It is therefore ordered by the board that each and every voucher as received by the president of this board, and destroyed, in pursuance of an order of this hoard, and each and every settlement be and they are hereby, singly and collectively, approved, and that the settlements as made by the president of this board in vacation be and they are hereby in all things approved and confirmed." At the April term, 1871, the board of supervisors entered an order by which all holders of the scrip issued as above stated should, within thirty days from the publication of the order, present the same to the clerk, who was directed to take up the same and issue warrants on the treasurer in lieu thereof, and the clerk was directed to make report of his action to a subsequent term of the board. It is admitted that one T. S. Hampton was then the holder of a part of this scrip, which he surrendered to the clerk, and' received in lieu thereof the warrants designated in this opinion as the warrants of the third class. The clerk made report of his action to — 181 — the May term of the board, and it was then approved and confirmed by the board, which also then directed the scrip so taken up to be burned in its presence. On the trial of this cause it was admitted that proof could be made that the scrip issued as aforesaid had been used in payment of valid claims against the county, but the court excluded such evidence as incompetent. The relator contended that the facts proved and offered to be proved sufficiently showed “ an order of the board allowing the warrantsor if they did not, that enough was shown to estop the county from defending against the warrants. The court below rejected these views, and declined to award mandamus for their payment. We approve the judgment of the court in this respect. There was no semblance of authority for the issuance by the board of the scrip directed by the order of February 12, 1866. On the con-r trary, the manifest policy of the law, as indicated by the statutes, is and always has been that these bodies shall only issue warrants in payment of claims previously adjudicated by the board and found to be valid charges against the county. Articles 31 and 32, page 419, of Code of 1857, provided that “all demands against the county shall be filed and preserved by the clerk, and numbered to correspond with the warrants to be issued therefor; and the order allowing such claims shall be entered on the minutes, specifying the name of the claimant, the amount allowed, and on what account.” This provision was brought forward into the Code of 1871, and is yet the law. Code of 1871, §§ 1380, 1381; Code of 1880, § 2159. The obvious purpose of these specific and restrictive provisions is to guard the public moneys from unlawful appropriations, and to charge every person into whose hands warrants may come with notice of any defect of authority or its exercise in making the orders upon which they are issued. As against the county, there can be no innocent holder of a warrant issued without authority of law, if the record provided by the statute discloses on its face the illegality of its issuance. The issuance of the scrip, the destruc — 182 — tion of the “ claims ” upon which it was paid out, the attempted delegation of judicial authority to the president of the board, to be exercised by him in vacation, the order directing the clerk to issue other warrants for the “scrip” surrendered by the holders, were each and all plain, palpable, and flagrant violations of unequivocal statutory provisions. Such illegal and vicious acts were not judgments of the board in any sense of the word, for the proceedings were not only irregular, but were illegal, and themselves exhibited a total want of jurisdiction over the subject-matter. No claims against the county were presented for adjudication by the board, but the scheme was to float scrip of the county as money, and it was paid out by the president and clerk in satisfaction o'f demands adjudicated by these officers in vacation, and the board, at a subsequent meeting, ratified and approved their action upon each and all of the claims “ singly and collectively.” So also when the scrip was to be retired, “presentation to the clerk” was substituted for that presentation to and adjudication by the board which the statute required; and the ratification by the board of his áction can add nothing to its validity, since there is no authority in law for his act, and none could be conferred by the board. Whether the holders of these warrants may disregard all these illegal acts and recover upon the consideration afforded by the “ claims ” paid by the scrip is not a subject for consideration in this action. It is only necessary to say that the warrants, payment of which is sought to be coerced by this suit, are not founded on any valid judgments of the board, and because they are not mandamus, does not lie. The act of 1876, requiring all outstanding warrants against the county to be registered, declared only that if they were not registered as directed they should not be receivable in payment of taxes. The warrants themselves were not declared to be outlawed. Honea, by accepting unregistered warrants in his settlement with the sheriff, was bai’red of his right to use them in settlements with the county; but since they were not vouchers in such settlements, their receipt by him did not operate as payment by the county, but — 183 — left the warrants in his hands as his property ; and though he was treasurer, this did not preclude him from coercing payment by any means open to all holders of warrants. The judgment of the court below is in all things affirmed.