Corinth to Gulf Highway v. Carothers & Co.

Ethridge, J., delivered the opinion of the court. The judgment appealed from in the present case was a proceeding brought, upon a consent decree rendered in the chancery court of Alcorn county on the 22d day of August 191!), in' a suit styled as this case is styled, in which original suit Oarothers & Oo. filed a bill against the commissioners cf the Corinth to Gulf road district in Alcorn county, Miss., and the commissioners thereof, and the board of supervisors, in which it was sought to have a contract between Oarothers & Oo. and the board of supervisors and the road district commissioners specifically performed, and for a decree adjudging whether or not the board of supervisors had breached its contract with the said Oarothers & Oo., and whether the said Ca-rothers & Co. were in default with reference to the said contract, and to compel the board of supervisors to pay over a certain retained percentage on the said contract to Oarothers & Oo. on a part of the work done by them upon said highway. The contract involved originally was for the construction of an improved highway, which was to be graveled for a width of nine feet with eight inches of gravel before the tamping of the gravel as provided in that contract. It seems that the work in the original contract was interrupted by the government control of the railroads in its war activities, in which for a period of time gravel was prohibited from being carried over the railroads, and in which the contractors would have to bring the gravel from the pit .to the road for the work. The suit was filed against the board of supervisors and the highway commissioners as such, and not against the county; and so is the present proceeding. The board of supervisors and the highway commission had filed an answer, and the case was at issue between the parties as before the court; the county not being technically — 652 — a party to the suit. Thereupon a decree was entered by consent which was in effect a new contract widely different in its terms from the original contract and involved a construction of a portion of the original highway embraced in the first contract to awidth of twelve feet of gravel highway, said gravel was to he also eight inches in depth before tamping, and that Carothers & Co. would enter into bond to guarantee that a portion of the highway to be constructed twelve feet in width with gravel laid as above stated instead of nine feet, at a cost not to exceed twice the amount for the graveling and hauling that was allowed under the first contract for that service; and it was further provided in the consent decree that this link of road, which was two and three-tenths miles in length, and which was to be embraced in the federal aid project, would be let as a separate link, so that Carothers & Co., could bid thereon to protect their said guaranty, and that, when the amount of road was constructed by Carothers & Co. which it was agreed that they would construct under the consent decree, the board would pay a certain amount of the retained percentages for such work on entering into the bond as aforesaid. There were certain variations also on the amount of gravel that would be regarded as a cubic yard under the consent decree from what it was under the original contract. There was no entry of this consent decree upon the minutes of the board of supervisors, nor was there any notice to contractors published as to such contract, and it was provided that the chancery court would retain jurisdiction of the cause to compel the carrying out of the consent decree. The consent decree is too lengthy to set out in detail, and it is unnecessary to set forth its provisions in detail. Carothers & Co. failed to complete the link of road to be constructed twelve feet in width of gravel within the time contemplated, and before it was ‘completed the link involved in the government aid project was let, and this project involved two and three-tenths miles above mentioned, and there was no separate advertising of the two and three-tenths miles in the notice, — 653 — nor was the two and three-tenths miles let as a separate link as agreed to in the consent decree. When the notice was published that the government aid project would be jet, it involved the letting of a link of road six miles in length, and the advertisement was seen by a member of the firm of Carothers & Co., and a member of that firm attended the meeting at which that government aid project-was let, and had five hundred dollars to deposit as a guaranty provided the two and three-tenths miles was let so as to give Carothers & Co. the right to bid thereon separately for the hauling and spreading of the gravel. But no request was made by him at the time that the said road be let as a separate link, nor that it be let to him as a separate item for the hauling and spreading of the gravel. At that time the link of road which they were to complete had not been completed, and no bond for two thousand five hundred dollars was made, filed, or tendered by Carothers & Co. and the six-mile link known as the government aid project, which also included the two and three-tenths miles above mentioned, was let to a third party at a cost greater than twice the amount of the original contract for the nine-foot gravel road. Thereafter Caroth-ers & Co. completed the link which they were to complete under the agreed decree and presented their claim to the board of supervisors, who caused its highway engineer to figure the cost under the contract let of graveling the two and three-tenths mile link twelve feet wide and eight inches deep, and from the calculation so made by the engineer the board of supervisors deducted the extra cost involved to the' county from the retained percentages and paid to Carothers & Co. the difference between the retained percentages and this amount, but refused to pay this amount. Thereupon the petition was filed in this suit, being the original suit with supplementary proceedings, to compel the county to pay the balance of the retained percentages on the theory that the board had breached its contract embodied in its decree by not letting the link of road separately, and that consequently Carothers & Co. w-ere en — 654 — titled to all of the retained percentages, and- the chancel-' lor decreed on the final hearing in accordance with Ca-rothers & Co.’s contention, from which decree this appeal is prosecuted. Some serious questions have arisen in the consideration of this cause, and it has given us some trouble. In the first place, the suit was brought against the board of supervisors and the highway commissioners. There is no provision in the statute for suit by or against the highway commissioners. They are mere agents or advisors of the board of supervisors and can do nothing without the consent and approval of the board of supervisors. The statute nowhere authorizes them to sue or be sued, and it is clear that the suit against them is improper inasmuch as they are the mere subordinates and agents of the board of supervisors. Shell et al. Commissioners v. Monroe County, 125 Miss. 562, 88 So. 162. So there is no authority for a suit against the commissioners, and they are improper parties. The statute (section 309, Code of 1906; section 3682, Hemingway’s Code) authorizes the county to sue and be sued by its name. It does not authorize suits against counties to be brought against the board of supervisors as such. This was held in a case Avhere the board brought a suit on behalf of a county in National Surety Co. v. Board of Supervisors of Holmes County, 120 Miss. 565, 81 So. 792, but on suggestion of error to that decision, reported in 120 Miss. 706, 83 So. 8, it ivas held that a suit brought in the name of the board of supervisors for the benefit of the county was merely a misnomer, and that, if the defendant failed to object thereto, in the trial court, where proper amendment could be made, it is precluded from making such point on appeal. So under this authority it is doubtful whether the failure to bring suit against the county would avoid the decree if it were otherwise proper where the county appeared and contested the right of the com--plajnant in the suit. It was probably its duty to raise the question so that an amendment could be made. We do not decide what effect such suit would have, as the judgment — 655 — will be reversed for another reason, and the cause will be remanded Avlien proper amendments may be made. It is clear in our minds that the consent decree was void, and the chancery court had no jurisdiction to enter such decree. Section 361, Code of 1906 (section 3734, Hemingway’s Code), provides how contracts for public work shall be made in all cases not otherwise specifically provided- for. There is no specific provision for a contract of the kind attempted to be made in this suit, and it falls under section 361, Code of 1906, and must be let in accordance with the provisions of law contained in that and the sections following it in the chapter on the board of supervisors. The chancery court has no jurisdiction to make contracts on behalf of the county, and contracts not made in accordance Avith laAV cannot bind the county even though the board of supervisors as individuals appear and consent for the chancery court to enter a contract upon its minutes. A board of supervisors in the matter of binding the public by contracts are limited by laAV and cannot in cases of this kind ignore the statutory restrictions. It is familiar learning that the board of supervisors can only contract by an order entered upon their minutes. Leflore County v. Cannon, 81 Miss. 334, 33 So. 81; Benton County v. Patrick, 54 Miss. 240; Dixon v. Greene County, 76 Miss. 794, 25 So. 665, in which case it was held that the board of supervisors cannot delegate their duties to other persons. The class of contracts which may be modified without advertisement and the limitations of that power are set forth in Marion County v. Foxworth, 83 Miss. 677, 36 So. 36. A contract by a county board of supervisors not made by an order spread on the minutes is invalid. Northern Drainage District v. Bolivar County, 111 Miss. 250, 71 So. 380. See, also, Kidder v. McClanahan, Mayor, et al., 126 Miss. 179, 88 So. 508; Smith County v. Mangum (Miss.), 89 So. 913; Bridges & Hill v. Clay County, 58 Miss. 817; Crump v. Board of Supervisors, 52 Miss. 107. In Lamar County v. Tally & Mayson, 116 Miss. 588, 77 So. 299, in which case it av&s held that a contract made by — 656 — a board of supervisors can only be varied, where it can be varied at all, by an order entered upon its minutes, it is also said that the board of supervisors are the trustees for the public, and it cannot delegate powers conferred upon them by law. So the chancery court was without power to enter the consent decree, and such decree amounts to a nullity. In section 8474, Code of 1906 (section 2812, Hemingway’s Code), it is provided: “An officer shall not' enter into any contract on behalf of the state, or any county, city, town, or village thereof, without being specially authorized thereto by law, or by an order of the board of supervisors or municipal authorities.” In Groton Bridge & Mfg. Co. v. Warren County, 80 Miss. 214, 31 So. 711, it was held that as to work of a kind there involved and here involved the board cannot be bound upon any implied contract, and that all contracts for such work must be made by the board as a board in open session and be evidenced by entry on its minutes. In view of these statutes and decisions the consent decree was void, and the decree attempting to enforce it is likewise void, and must be reversed and remanded, with leave to the parties to malee such amendments to the original proceedings as may be necessary to settle the differences between the contractors and the county. Reversed and remeutvded.