Robb & Chichester v. Postal Telegraph & Cable Co.

Reed, J., delivered the opinion of the court. Appellants, road contractors in Hinds county, brought suit against appellee for damages' resulting from the agents and employees of appellee cutting down brush and trees about the poles and under the wires of appellee’s telegraph line, which extends along a public road, and throwing the brush, trees, and cross-arms from off their poles into the road, causing a filling of the ditches and a flow of water across the road after a heavy rain, so as to seriously impair it, and render it necessary for appellants to rework it. Upon the trial of the case appellants offered their duly executed contract with the county of Hinds to prove that they were road contractors, as alleged in their declaration. Upon the objection of counsel for appellee, the trial court stated that this was not a complete proof, and ruled that appellants should show what authority the boards of supervisors had to enter into the contract with appellants. Appellants thereupon introduced the minutes of the board showing the original order letting the contracts for road work. The following is the portion of the order necessary for our consideration: “In the matter of letting the public road of Hinds county, to be worked by contract. The board having heretofore, in accordance with the statute, [175] advertised for bids for the -working of the public roads of the county by contract and sundry bids having been received and opened and considered by the board, and the matter coming on for final disposition at the present term, and the board having considered all of said bids and finding that the lowest bids made in accordance with the specifications on file and the advertisement for the same as follows. . . . Appellants, also introduced a bond given by them for the faithful performance of their contract and the original notice to contractors; but they did not introduce proof to show that the notice to contractors was published in a newspaper for the time specified by the statute. Appellants rest upon the adjudication that this was done by the board, as shown in its order. Appellee’s counsel thereupon moved the court for a peremptory instruction upon the ground that no.legal publication had ever been made as required by law, so that appellants had no legal contract with the county for working the roads. The court sustained the motion and gave the peremptory instruction, and from the judgment of the court based upon this instruction appellants appeal. Appellants contend that the recital in the order of the board to the effect that advertisement for bids had been made in accordance wih the statute was a distinct finding by the board that the proper notice had been given, and that such recital is conclusive. The appellee contends that the order of the hoard should have set out the facts showing that the publication had been made in accordance with the statute. We believe that the appellants have shown by sufficient testimony that they had a legal contract with the county of Hinds to work the roads in question. It appears to us that the order of the board sufficiently sets out the necessary, jurisdictional facts. As will be seen, the order contains the statement that, before the time of the letting of the contracts for working the public roads, advertise [176] ment for bids for doing the work was made in accordance with the statute. The statute shows where and how the advertisement is to be published and for what length of time as well as what the notice shall contain. According to the recitals in the order, all of this was done by the board before the contracts were awarded. In the case of Hinton v. Perry County, 84 Miss. 536, 36 South. 565, the court decided that it was not necessary in an order to set out the evidence of jurisdictional facts where such were found to exist. The trial court erred in giving the peremptory instruction. Reversed and remanded. OPINION ON SUGGESTION OF ERROR. Reed, J. By reference to thisi case as reported in 61 South. 170, it will be seen that on the first hearing we decide that the order of the board of supervisors in question was sufficient. In the opinion then delivered we said: “It appears to us that the order of the board sufficiently set out the necessary jurisdictional facts. As will be seen, the order contains the statement that, before the time of the letting of the contracts for working the public roads, advertisement for bids for doing the work was made in accordance with the statute. The statute shows where and how the advertisement is to be published and for what length of time, as well as what the notice shall contain. According to the recitals in the order, all of this was done by the board before the contracts were awarded.” We therein cited the case of Hinton v. Perry County, 84 Miss. 536, 36 South. 565. After again carefully considering the case, and in the light of the able arguments presented in the briefs of counsel for both appellant and appellee, we have concluded that we were in error. It will be noted that section 361 of the Code of 1906 provides two ways of publication, by advertisement in a newspaper for three weeks, [177] or, if no newspaper is published in the county, by posting written or printed notices at the courthouse door and in each supervisor’s district of the county. The record of the board touching this matter fails to show how the advertisement for bids was made ; and, in addition to this, we are not now of the opinion that the order set out sufficiently the jurisdictional facts necessary to authorize the board to act in the matter. The case of Hinton v. Perry County, supra, determined that it was unnecessary to set forth the evidence of the jurisdictional facts in the order. It is also therein held that the minutes must show that the jurisdictional facts were found to exist. We do not believe that this has been shown in the order in the present case. The writer, with some reluctance, joins in holding that the order in this case is insufficient. He understands that section 170 of the Constitution of 1890 of Mississippi gives to boards of supervisors full jurisdiction over roads, ferries, and bridges, and he cannot see that the decisions of our court, to the effect that the jurisdiction of the board in such matters is limited, are based upon sound reason. However, he bows in deference to the wisdom of the eminent jurists who have by their opinions settled this question. The suggestion of error is sustained, and the case is affirmed. Suggestion of error sustained. Affirmed.