Corinth to Gulf Highway et al. v. Carothers & Co.
[92 South. 696,
No. 22343.]
Counties. Supervisors can only contract as provided by law; and contract must be evidenced by order on minutes; board cannot bind county for contracts not let on advertisement, to lowest bidder; board can-» not consent to decree having effect of making new contract not in accordance with statute.
The board of supervisors of a county can only contract as provided by law, and such contract must be evidenced by an order entered upon its minutes. Section 361, Code of 1906 (section 3734, Hemingway’s Code), requires certain contracts to be made only on advertisement and to the lowest bidder, and as to such contracts the board cannot bind the county by a contract unless the statutory conditions are complied with; and the board cannot, as to matters coming under the purview of this statute, consent to the entry- of a consent decree in a suit in chancery having the effect of making a new contract and bind the county as to such contract not made in accordance with the statute, and a decree so entered is void.
Appeal from chancery court of Alcorn county.
Hon. A. J. McIntyre, Chancellor.
Suit by Carothers & Co. against the Corinth to Gulf Highway and others, in which there was a consent decree. Subsequently a petition was filed in supplementary proceedings to compel the county to pay a balance of the retained percentages on theory that board had breached its contract embodied in its decree, and consequently plaintiff was entitled to all retained percentages. Decree for .plaintiffs, and defendants appeal.
Reversed and remanded.
IF. G. Sweat, for appellant.
*646Aii individual, wlio is sui juris ¿ can make any kind oí contract and enter into any kind of agreement, and such contract, or agreement, if not contrary to law, would be binding upon him but the county can make no agreement, unless it is specifically authorized by law so to .do; and the board of supervisors cannot bind the county, except in the manner prescribed by statute, and must be able to point out the particular statute which authorizes the doing of the thing or the making of the contract before it can be binding upon the county. The attorney for the county, who is employed by the board of supervisors, could certainly no more bind the county than could the board itself; and the fact that he appears in the suit could not give any validity to a decree otherwise void.
It is true that a person sui juris can enter a consent decree which will bind him, and his counsel may do likewise; but the county is not sui juris in the sense in which that term is ordinarily used, but is impotent to act, except as specially authorized by statute. The county cannot be bound by its board of supervisors or by its attorney, except by an order duly entered upon its minutes, and after all the formalities required by the statute are complied with which authorizes the board to take the action and its entry upon the minutes.
Rodins d Thomas, for appellee.
In the first inquiry that the court makes in its suggestion for additional briefs, is what jurisdiction and power did the chancery court have to enter this decree and what power had the board of supervisors and highway commissioner’s to consent to such decree to bind the county. As we understand it the board of supervisors aré the very parties to bind the county; and as to the question as to what jurisdiction the chancery court had to enter the decree, if the pleadings in the original case were before the court, it would be apparent that all the matters disposed of in that decree were incidentally, if not actually, in issue in the original suit.
*647The original suit was brought by Carothers & Company for the purpose of recovering the retained percentage and damages on the part of the county for breach of their contract in failing to furnish the contractor's material as required by their contract, and in failing to receive and pay for all the work done and to relieve Carothers & Company, the contractors, from doing any further work on the contract. It was especially set out in the decree and in the pleadings that there was a part of the contract on which no work had been done. The defendants the real parties in interest, the road district, and the hoard of supervisors, who as a board can act only for the county and road district, and the county itself through its legally retained attorney, Mr. Sweat, defended that suit and set out that the road district was not liable because it Avas claimed that the complainants in that case first breached the contract and prayed for damages against complainant, and denied the right to recover the seven thousand three hundred dollars retained percentage, or any part of it. So there was before the court in that suit the Avhole question of who was entitled to the retained percentage, who was entitled to damages, who Avas liable for the completion of the road, and hoAv it should be completed. The Avhole matter was before the chancery court, and the chancery court had jurisdiction of all the parties by the appearance of those parties through their attorneys. We knoAV that Mr. Sweat AA’ill not deny that he was the attorney for the county, and as attorney for the county, he had the direction of this particular road district affairs, as Avell as other road districts of the county, and that he appeared by virtue of his authority as attorney and counselor of the county of Al-corn, and the county of Alcorn acting for the road district, known as the Corinth to Gulf Highway.
The chancery court, as a court of general jurisdiction and especially as a court of equity, Avould have had the inherent poAver with the subject-matter before it and with the parties before it, and Avithout consent to have made a decree to do justice and equity between these parties and *648to fix the terms upon which the retained percentage should be paid and also to fix the terms upon which the work should be completed and paid for; or to assess damages to either party in case the other failed to do his part or perform the decree. We submit that a party cannot appear by his attorney, even though the appearance be made in the name of another, and contest and fight out a proposition and not be bound by what is done. He is as much es-topped Avhere he appears by his attorney in a case in another name as if that appearance had been in his own name, and this applies as well to municipal corporations and quasi-public corporations as to any ordinary litigant.
“One who has a right to make a defense, control the proceedings, examine and cross-examine witnesses and appeal from a judgment, though not technically a party to a judgment, may nevertheless have been so connected with it by his interest in the result of the litigation and by his active participation therein, as to be bound by such judgment. The courts look beyond the nominal parties and treat all those whose interests are involved in litigation, and who conduct or control the action and defense as real parties and hold them concluded by any judgment which may be rendered, as for example those who employ counsel in the case, assume the active management of the proceedings or defense, or who pay the cost and do such other things as are generally done by parties. In other words, by participating in the proceedings .one is estopped by the judgment as to any question actually litigated and decided therein.” (15 E. C. L., p. 1009, sec. 483). The above principle only applies to parties sui juris.
A consent judgment or decree is as much binding as where the case is tried out on its merits. BlacJdbourne v. Scnatobia Educational Assn., 74 Miss. 853. “Courts have the general power of entering judgment by consent of parties and a judgment may be properly entered by a court, for the purpose of carrying out a settlement and compromise of a suit. When made by consent it is presumed to be made in view of existing facts and that these were *649within the knowledge of the parties. 13 R. C. L., see. 86, •p. 643; Thompson v. Maxwell Land Grant, 9,5 U. S., 391, 24 L. Ed. 481.
An attorney of record in a court of general jurisdiction has the implied power to consent to a decree. 13 R. C. L., sec. 87, p. 644.
The second inquiry of the court is: The court desires to know under what statutes, state or federal, the alleged consent decree and contract thereby made is governed. We confess we do not know exactly what was in the mind of the court in propounding this inquiry. We do not think that the statutes, either state or federal, have anything to. do with the rendering of this consent decree. If the cour;t had jurisdiction of the subject-matters and the parties, unquestionably, it could enter a consent decree by virtue of the inherent power of the court. Of course a consent decree against a minor, or any other person not sui juris, would be void, but if the parties are sui juris and before the court, then a consent decree may be entered by the court just as effective and valid as if the matters had been litigated out and decided by the court.
The third inquiry says if we assume that the board of supervisors had authority to make a contract, such as the consent decree involved could it bind itself and bind the public without giving notice by advertisement and by an entry of an order'on its minutes to let any particular contract that would in substance change a former valid contract. We do not think there was any new contract; or rather we think that the consent decree merely related to the subject-matter of the former contract. All the matters decided by the consent decree were involved in the first suit. The decre merely directed the carrying out of the mutual obligations of the parties under a former contract. The county and the road district as to the two and three-tenths miles of road had decided that they did not Avant this road’ built as a nine-foot road, and they were going to let this out as a twelve-foot road by proper publication. This was a question of settlement merely as directed *650on the consent decree of the relative lights of the parties under the first contract and the .damages that might accrue to' either party by reason of the first contract not being carried out.
That would have been a legitimate inquiry if the matter had been litigated out instead of being settled by a consent decree. That consent decree is now being assailed collaterally, as we see it. There was no appeal from the consent decree. The bill and answer, on which the consent decree was founded is not before the court any further than the matter at issue was necessary tó be set out in the new suit.
* We do not understand that it is necessary in order that a consent decree may be taken in a suit in which the county is involved that the board of supervisors should make an order on its minutes. The board of supervisors, as the representative of the county, as well as the attorney of the county, would have the power to enter a consent decree and if no fraud were practiced, the decree would be valid. It is generally held that a consent decree may be entered by an attorney without special authority and it will be binding upon his client, unless there is fraud or collusion, or mistake.- (E. G. L., p. 644, sec. 87.)
We do not deny but that if the consent decree had been obtained by fraud, or by mistake, or that it really had not been by consent, or perhaps, if manifest gross injustice had been done, the court might, if it were attacked on this ground, vacate it; but there is nothing of this kind claimed in this case. The consent decree was manifestly fair and would manifestly dispose of the controversies between the parties in a just and equitable way, protecting the interests and rights of all parties to the transaction and as before stated, the fact of the order of the board of supervisors for the allowance of a part of the retained percentage and undertaking to keep the balance of the retained percentage by virtue of one of the clauses of the consent decree was an absolute.ratification and approval of the con*651sent decree, by the county for and on behalf of the road district.
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 *652a 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, *653nor 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*654titled 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 *655will 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 *656a 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.