Pearl River County Bank v. Town of Picayune

Sykes, J., delivered the opinion of the court. The appellant bank by mandamus proceedings in the circuit court seeks to compel the appellee, town of Picayune, to. accept the bid of the appellant and select it as the depository for the town. The petition alleges that the mayor and board of aldermen of the town of Picayune advertise for bids for a depository of the funds of the town in accordance with chapter 253, Laws of 1914, and that in response to this advertisement the appellant, petitioner, submitted its bid, which bid is set out in detail in the petition, but which is unnecessary to be herein copied; that the only other bid submitted was that of the Bank of Picayune, in which bank the mayor of the town is interested and is its largest stockholder and president, and that another member of the boarcl of aldermen is vice president. The petition sets out the bid of the Bank of Picayune. The petition then avers the willingness of the appellant .bank to furnish proper bond as required by law. It then avers that the town through its mayor and board of aider-men, evincing a desire to favor the Bank of Picayune, en [478] tered an order accepting the bid of this bank, making it the municipal depository; that the mayor and board of aider-men did not question the safety of its money deposited with the petitioner, or the fact that it could and would furnish a proper bond, nor that the appellant bank would be in every respect a safe and secure place for the deposit of these funds; but that, solely for the purpose of selecting the other bank without sufficient reason, the bid of the appellant bank was declined, and the bid accepted was unauthorized and illegal, and a less advantageous bid; that by virtue of chapter 257, Laws of 1914, and' chapter 253, Laws of 1914, the mayor and board of aldermen are bound to accept the bid of the petitioner, which offered the best-legal terms to the board; that the bid of the Bank of Picayune was an illegal bid, and one not authorized by law, and one which could not be accepted under the law. There was a demurrer interposed to this petition, which was sustained in the lower court, and the petition was dismissed. From which judgment this appeal is prosecuted. While there are a number of questions presented by the demurrer, it is only necessary for us to consider but one, and that is whether or not in the selection of a municipal depository the mayor and board of aldermen are vested with any discretionary power. If they are, then the demurrer was properly sustained. Chapter 253, Laws of 1914 (sections 4251 — 55, Hemingway’s Code, provides for the establishment of municipal depositories. Section 1 of this act provides that the municipal authorities are required to select a depository in the same manner as in a county. It also provides for the making of a bond or giving of security by a depository, and the duties of the depository or depositories so selected. Chaptér 257, Laws of 1914 (section 4235 et seq. Hemingway’s Code), prescribes the mode and manner to be followed by counties in the selection of county depositories. In section 1 of this chapter (section 4235, Hemingway’s Code), it is provided what character of notice shall be given the banks in the advertisement for the county depository, [479] and that the board of supervisors shall receive such proposals as these banks may make for the privilege of keeping the county funds and the security proposed. Then follows this provision: “And the said board shall cause the county funds and all other funds in the hands of the connty treasurer to be deposited in the bank or banks proposing the best terms, having in view the safety of said funds.” Section 3, chapter 194, Laws of 1912, which was not amended by chapter 257, Laws of 1914 (which is section 4240, Hemingway’s Code), provides for the qualification of banks as depositories. In this section it is provided that — “If at any time the securities which may be deposited, shall become worth less than par on the market, the board shall have the right to demand other and different security.” This section concludes as follows: “The board of supervisors shall have the right to reject any and all bids where, in the opinion of the board, the security offered is not-sufficient.” By chapter 253, Laws of 1914 (sections 4251 et seq. Hemingway’s Code), there is vested in municipal boards the same power with reference to the selection of municipal depositories as is vested in the board of supervisors by the laws relating to the selection of county depositories. Under these laws the same power to reject bids that is vested in the board of supervisors is vested in the municipal board. It will be noted that in the selection of a depository, under chapter 257, Laws of 1914 (section 4235, Hemingway’s Code), the board selects as the depository the bank or banks proposing the best terms, “having in view the safety of said funds.” Under this section the board is not simply required- to accept the bid of the bank proposing the best terms, but must have in view the safety of the funds. It is a matter of primary importance to the municipality or to the county to deposit its funds with a safe and secure bank, where these funds are subject at all times to the use of the municipality. Under this section [480] if for any reason either a county or a municipal hoard should question the solvency of the bank offering the best terms as a depository, it would have the right to reject this hank because of this part of the section. That the legislature intended for these boards to carefully guard these funds is further shown by the concluding part of section 3, chapter 194, Laws of 1912 (section 4240, Hemingway’s Code), which gives these boards the right to reject any and all bids when in their opinion the security offered is not sufficient. By these laws they are enjoined: First, to have in view the safety of the deposits; and, second, to reject bids when the securities are insufficient. In the case of Powell v. Tunica County, 107 Miss. 410, 65 So. 499, Ann. Cas. 1916B, 1262, it was held that: “The very purpose of the legislature, by the enactment of the law for the establishment of county depositories, was to provide for the safe-keeping- of the county funds.” Under this scheme it is perfectly manifest that the board is vested, and wisely so, with a discretion in this matter, and that the first and primary question to be considered by the board, “having in view the safety of said funds,” is the solvency of the banks bidding for this depository, and the second consideration is the best bid of a solvent bank. These are necessarily discretionary powers vested in these boards. Being discretionary powers, their acts are not subject to judicial review in this proceeding. Swan v. Gray, 44 Miss. 393; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; State V. Henry, 87 Miss. 153, 40 So. 152, 5 L. R. A. (N. S.) 340. Affirmed,.