McGraw v. Board of Sup'rs of Winston County

W. H. Cook, J., delivered the opinion of the court. Apjiellant, J. D. McGraw, filed a petition in the circuit court of Winston county, praying for the issuance of a writ of mandamus requiring the board of supervisors to issue to him a Avarrant for the sum of one thousand three hundred sixty-one dollars and tAventy-five cents, and from a judgment dismissing the petition, this appeal was prosecuted. The facts as developed on the trial of this petition were substantially as follows: In the year 1916, under the provisions of chapter 176, of the Laws of 1914, a road district was formed of a portion of Winston county. Commissioners Avere appointed, and a contract entered into betAveen the commissioners and F. D. Harvey & Co., a copartnership composed of F. D. Harvey and H. E. Harvey, for the construction of certain roads in the district. The con — 427 — tractors executed a bond conditioned for the faithful performance of the contract and proceeded with the work of constructing the selected roads. During the progress of the work, various links of the road were sublet, and prior to the July, 1917, meeting of the board of supervisors, the work was completed in accordance with the terms of the contract and to the entire satisfaction of the commissioners. At the July meeting of the board of supervisors the commissioners submitted to the board a report to the effect that the roads of the district had been completed according to tlie terms of the contract and had been accepted by them as finally completed, and that they were indebted to F. D. I-Iarvey & Co. in the sum of eleven thousand one hundred twenty dollars and ninety-two cents, and requesting the board of supervisors to accept the roads finally and treat the report as a final settlement. Thereupon the board of supervisors adopted the following order': “Came on to be considered the final acceptance of the good roads in the above-named district with F. D. Harvey as contractor, and on recommendation of the commissioners, to wit, W. C. I-Iight, A. S. Harris, and I. A. Sanders, commissioners, for the said district, that the said contractor F. D. Harvey had fully complied with said contract and that said road had been completed in all respects according to the plans and specifications adopted by the said commissioners, and that he, the said F. D. Harvey, was entitled to a final settlement on said roads, and the board, after being fully advised in the premises and being satisfied that the said commissioners and the said contractor had fully complied with the law in the construction of the said roads, and that the plans and specifications adopted in the construction of said roads had been carried out according to contract, it is therefore ordered by the board that the report of the said commissioners be, and the same is hereby, adopted and ratified, that said roads be fully accepted as being completed, and that the said F. D. Harvey and his bondsmen on his said contract be, and they are hereby, discharged and released from any further lia — 428 — bility on bis said contract as said contractor and in the construction of the said roads, and they and each of them are hereby discharged from any and all further liability in connection with the construction of said roads.” It further appears from an entry on the minutes of the board of supervisors that the contractor, F. D. Harvey & Co. authorized the board to pay a certain portion of the balance due. them to certain subcontractors, but there was a disagreement as to the amount due these various subcontractors, and the board withheld the sum of one thousand three hundred sixty-one dollars and twenty-five cents of the balance due the contractor, and entered on its minutes the following order: “Came on to bes considered the matter of final settlement between F. D. Harvey and the subcontractors in the above named districts in said county and state; and it appearing to the board that the said F. D. Harvey had prepared and 'filed a certain statement with the clerk of said board admitting certain amounts of indebtedness to certain subcontractors therein named, and authorizing that said amounts therein named as being due the parties therein named, be paid by the clerk on order of said board, and it further appearing to the board that there is a difference between the said F. D. Harvey and the subcontractors as to the whole amount due the said subcontractors by the said F. D. Harvey on the various amounts of work done on the said road, that is to say, the said F. I). Harvey is charging the said subcontractors for work of an extra engineer on said roads or in the construction of the said roads; and it appearing that the said subcontractors are denying liability for said extra work, and have filed with said board a legal notice claiming a lien on said work for the full amount due on said roads exclusive of any extra engineering service: It is therefore ordered by the board that the clerk of said board be, and he is hereby, authorized to issue to the said subcontractors named in the estimate furnished by the said F. D. Harvey to the said board warrants to be paid out of the good roads fund — 429 — now on hand in said good roads district; and, the same being funds derived from the sale of bonds in said good roads district in the amounts shown to be due said contractors by said F. D. Harvey, it is further ordered by the board that the amounts claimed by the said F. D. Harvey against the said subcontractors for the work of extra engineering, the same being now on file with said board and claimed by the various said subcontractors, and for which they claim a lien on the construction of said roads, be, and the same is hereby, held in abeyance, and the clerk of this board is hereby authorized and instructed to make an itemized account of said claims, and hold the same against the good roads funds in said district until said matter is finally settled and determined between the said F. D. Harvey and the said subcontractors, and in the event they fail to settle said‘controversy the same to await a judicial determination.” At the July meeting of the board of supervisors the various subcontractors who were, claiming a balance against Harvey & Co. also filed with the board a written notice of their claim for this balance, and claiming a laborer’s lien on the public roads for said sum, and demanding that this balance be deducted from any sum due Harvey & Co. It further appears that during the progress of the work of constructing the roads the contractor, Harvey & Co., had become indebted to appellant, J. D. McGraw, for supplies furnished, and for which the said Harvey & Co. had executed a promissory note. In August, 1917, this note was placed in the hands of an attorney for collection, and in settlement thereof Harvey & Co. executed to appellant a written assignment of the balance of one thousand three hundred sixty-one dollars and twenty-five cents due them by the board. At the September meeting of the board of supervisors, appellant presented this assignment to the board, and demanded the issuance of a warrant for this balance. This demand was refused, and the board entered an order in the language following: — 430 — “Came on to be considered the petition of J. D. McGraw, showing an assignment of F. D. Harvey & Co. of certain money, to wit, the sum of one thousand three hundred and sixty-one dollars and twenty-five cents, claimed to be a balance due the said F. D. Harvey & Co. for road work in district No. 1, township 14, range 12, and 15 — 12; said petition reciting that the said board of supervisors now held and retained in their hands or in the county treasury the said sum of money, the same belonging to F. D. Harvey & Co., and asking the board to issue a warrant on the said treasury for said amount in favor of J. D. McGraw. “The board, after considering the same, is of the opinion that the said sum assigned belongs to certain road contractors in said road district, and is not the property of the said F. D. Harvey & Co., and under the law and under his contract with the road commissioners in said district he had no authority to assign said money; that according to statement filed with said board on the first Monday in July, 1917, by the said F. D. Harvey & Co. they have failed to pay the amounts due all contractors on said road work, and that his said contract with the road commissioners of said road districts provides that before they shall be paid in full all claims for work done on said roads must be discharged and met and paid. “It further appearing to the board that they had been served by certain subcontractors with notice of certain amounts due them for road work, the same being admitted by the statements filed by the said F. D. Harvey & Co. with the said board, it is therefore ordered by the board that the petition and assignment in favor- of J. D. McGraw be, and the same is hereby, disallowed, and the claim denied.” On the 5th day of November, 1917, the various subcontractors who were claiming a balance due them for labor performed on the public roads of the county filed in the justice court an ordinary action on open account against F. D. Harvey & Co., and procured the issuance of writs of garnishment against the board of supervisors. The — 431 — summons for the defendants, F. D. Harvey and H. E. Harvey, was attempted to be served by publication in a newspaper and by sending the process to the sheriff of Attalla county, where it was served personally on H. E. Harvey. The board of supervisors answered these alleged writs of garnishment, and on December 17th the justice of the peace entered judgments in favor of the board of supervisors and against Harvey & Co. The petition for mandamus requiring the board to issue the warrant to appellant was filed on the 5th day of December, 1917. The holding of the lower court, and the contention of counsel for appellee, that the work of constructing public roads in a district or subdivision of a county was not a public work of the county, but a special improvement, and for that reason, by filing a notice with the board of supervisors, the subcontractors acquired a laborer’s lien on the public roads of the district, cannot be maintained. It is perfectly clear that the public roads which were constructed in the subdivision of the county were public roads of the county. The public roads and property of a county are not subject to the lien created under section 3074, Code of 1906 (Hemingway’s Code, section 2434), in favor of laborers and subcontractors, and by filing a notice with the board of supervisors claiming a lien the subcontractors acquired no lien on the funds in the hands of the county authorities. Board of Supervisors v. Gillen, 59 Miss. 198. At the date of the execution of the assignment to appellant the road work had been completed and the roads accepted; the contractor, Harvey & Co., had been finally discharged by order of the board of supervisors; the balance due the contractor had been finally adjudicated by the board, and there only remained the ministerial duty of ordering the issuance of a "warrant for this balance. The balance due the contractor had not been impressed with any sort of lien, and Harvey & Co. was free to assign this balance to appellant in payment of any indebtedness which the company then owed to him. The assignment executed — 432 — to appellant was valid, and upon filing this assignment with the board of supervisors he was entitled to have a warrant issued to him for the balance which had previously been adjudicated as due the contractor, and upon the refusal of the board to allow his claim and order the issuance of the warrant therefor, appellant, as assignee of Harvey & Co., was entitled to maintain a petition for a writ of , mandamus compelling the issuance of the warrant. Since the proceedings which were begun by the subcontractors in the justice court were filed long after the balance due the contractor had been assigned to appellant, no right which might have been secured by such proceedings, if valid, would. avail to defeat the prior rights of the assignee, appellant here. For this reason it will be unnecessary to discuss in detail the many defects in the proceedings in the justice court which rendered the judgments there entered invalid. It appears from the evidence, as well as from the briefs of counsel, that at some stage of the proceedings in the court below some kind of an order was entered by the court, directing that the balance claimed by appellant should be paid over to him upon the execution of a bond to repay it when ordered by the court to do so, and that in pursuance of this order appellant executed the required bond and received the money. This order and bond do not appear in the record, and we are unable to determine the exact nature of the order or the authority of the court to make such an order. The money in question having already been paid to appellant by the board of supervisors, it may be that, since we hold that appellant was entitled to receive this balance, and that, at the time he filed his petition herein, he was entitled to maintain the proceedings for a writ of mandamus to require the issuance of the warrant therefor, it would now be useless to issue the writ requiring that to be done which has already been done. We are unable to determine the exact status of this matter, for the reason that the order and — 433 — bond under which the payment was made are not before ns, but, in any event, we conclude from such evidence as is in the record that the court has full power to require that the money be repaid into the county treasury to await such orders as may be entered by the court in reference thereto. This cause is therefore reversed and remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.