State v. Woodruff , 170 Miss. 744 ( 1933 )


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  • There has been a great deal written about this case — probably too much. I feel constrained, however, to briefly state my conclusions without elaborating the reasons therefor.

    I agree with the controlling opinion, written by Judge GRIFFITH, and the separate opinion, by Judge ETHRIDGE, that the decision of this case, as reported in 83 Miss. page 107, 35 So. 422, is unsound and ought to be overruled so far as the future is concerned. It is the law of the case, however, and must stand as such. I agree with the controlling opinion that the defendants whose names were not mentioned in the bill, and who, therefore, were not served with process, are not before the court, and therefore no valid decree can be rendered against them or *Page 799 their lands. I concur in the controlling opinion for the reasons therein stated that the bill should be dismissed as to the Gibbs v. Green lands; and I concur with it that appellees are entitled to a decree against the state for twenty-one thousand eight hundred fifty-one dollars and seventy-three cents, representing the taxes collected by it on certain of these lands.

    I disagree with the controlling opinion that appellees are barred by laches from recovering from the state the sums representing the taxes on the lands to which the state had title and sold without collecting the same. I agree with what Judge SMITH has written on this subject. I will only add this: I believe the rule is universal that appellate courts will not pass on any question not raised and passed on by the trial court, except the question of jurisdiction. All other questions, except that of jurisdiction, must have been decided by the trial court either expressly or by necessary implication. I am not willing to violate that rule in this case. That is what the majority opinion does; it amounts to the exercise of original jurisdiction by this court, which, under the constitution and laws of this state, the court does not possess.

    I disagree with the opinions written by Judges GRIFFITH, ETHRIDGE, and SMITH that the state is not liable as trustee for the taxes it failed to collect on the lands it sold.

    When this case was before the court, as reported in 77 Miss. 68, 25 So. 483, the court plainly decided, as it appears to me, that under both the Act of 1871 and the Act of 1876 the state held as trustee in possession, and was liable to the bondholders therefor, all lands acquired by it subject to these levee taxes. When the state disposed of these lands without collecting the taxes, it was guilty of a breach of trust and therefore liable to the bondholders for the taxes it should have collected. Undoubtedly that would be true of an individual trustee; I am unable to see why any different rule should be applied to the state. To hold that the state held these lands in *Page 800 trust for the bondholders, but, nevertheless, was not liable for a breach of the trust simply means to hold in one breath that the state is trustee and in the next that it is not. As trustee the state was not acting in its governmental capacity, but in its private capacity. The authorities which hold that a state is not liable for the negligence or misfeasance of its officers or agents have no application. The authorities relied on by the state will be found collected in 25 R.C.L., page 407, section 43, where it is stated: "The rule is well established that a state is not liable for the negligence or misfeasance of its officers or agents, except when such liability is voluntarily assumed by itslegislature." (Italics ours.)

    The court held in this case in 77 Miss. 68, 25 So. 483, that by legislative enactment the state had become trustee of these lands for the bondholders. In so doing the state necessarily assumed liability for the negligence or misfeasance of its officers.

    In my opinion the decree of the chancellor, in so far as the state is held liable for the taxes on these lands, ought to be affirmed.

Document Info

Docket Number: No. 29601.

Citation Numbers: 150 So. 760, 170 Miss. 744

Judges: <bold>Griffith, J.,</bold> delivered the opinion of the court.

Filed Date: 10/30/1933

Precedential Status: Precedential

Modified Date: 1/12/2023