Tallahatchie v. Yocona-Tallahatchie , 148 Miss. 182 ( 1927 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ. p. 745, n. 71; Counties 15CJ, p. 456, n. 54; p. 466, n. 9, 12; Drains, 19CJ, p. 615, n. 77; p. 627, n. 50; Pleading, 31Cyc, p. 78, n. 95; As to nature and powers of Drainage Districts generally, see 9 R.C.L. 644; 2 R.C.L. Supp. 848; 4 R.C.L. Supp. 618. Appellee, Yocona-Tallahatchie drainage district, brought this action in the circuit court of Tallahatchie county against the appellant, the Tallahatchie drainage district, to recover of the latter the sum of one hundred thirty thousand dollars, the purchase price of a lot of engineer's reports, surveys, stakes, monuments, tents, trucks, camp outfits, surveyor's instruments, and other personal property, sold by appellee to appellant. There were no issues of fact to be tried by a jury, the facts being embodied in the pleadings of the parties. The trial therefore was before the court without a jury, and resulted in judgment for the appellee for the amount sued for. From that judgment, appellant prosecutes this appeal. For convenience, appellant will be referred to as "Tallahatchie district," and appellee as "Yocona district."

The Yocona district was organized by decree of the chancery court of Panola county in 1917, under the provisions of chapter 195, Laws of 1912, and amendments thereto (Hemingway's 1927 Code, sections 4946-5003, inclusive). By a proceeding had in August, 1920, under chapter 281, Laws of 1920 (Hemingway's 1927 Code, section 5019), the Yocona district attempted to extend its boundaries so as to embrace about four hundred ninety-three thousand acres of additional land. McLemore v. DrainageDistrict, 129 Miss. 97, 91 So. 390, held these extension proceedings to be null and void. Large expenses were incurred, consisting of lawyers' fees, engineers' reports, and costs in securing data, surveys, stakes, monuments, maps, tents, trucks, camp outfits, surveyors' instruments, and other tangible personal property, in the attempt to annex the additional territory to the Yocona district. After the decision in the McLemore case, the Yocona district attempted to enforce payment of these expenses by a proceeding under chapter 159, Laws of 1912 (Hemingway's 1927 Code, section 4958); but this court, in the case of YoconaDistrict v. Love, 136 Miss. 760, 101 So. 684, held that the proceedings by which additional territory was sought to be included in the Yocona district were void; that the chancery court in that proceeding had acquired no jurisdiction over the lands sought to be included in the Yocona district, and that, therefore, the decree of the court assessing these lands with the expenses incurred in the effort to incorporate them into the Yocona district was void. Prior to the decision of the Love case, the Tallahatchie district was organized under chapter 195, Laws of 1912, and amendments thereto (Hemingway's 1927 Code, sections 4946 to 5003, inclusive), consisting exclusively, of lands sought to be included in the Yocona district. There was also organized the Panola-Quitman drainage district (which we shall call, for convenience, "Panola district"), embracing exclusively land sought to be added to the Yocona district. While the Love case was pending, the contract upon which this suit was based was entered into between the Tallahatchie, Yocona, and Panola districts. The Yocona district undertook to sell to the Tallahatchie district and the Panola district all the engineers' reports, surveys, stakes, monuments, tents, trucks, camp outfits, surveyors' instruments, and other personal property, which the Yacona district had acquired in its effort to incorporate within its boundaries the additional territory out of which the Tallahatchie and Panola districts were afterwards formed. The purchase price stipulated in the contract was two hundred thousand dollars, of which the Tallahatchie district was to pay one hundred thirty thousand dollars, and the Panola district the balance, seventy thousand dollars. The contract provided that, if the Yocona district failed in its proceeding under chapter 159, Laws of 1918 (Hemingway's 1927 Code, section 4958), to have the Tallahatchie and Panola districts taxed for the purpose of paying the expenses of the abortive attempt to extend the boundaries of the Yocona district, the latter districts would pay the Yocona district two hundred thousand dollars. The Tallahatchie district to pay one hundred thirty thousand dollars, and the Panola district the balance. This court having held in the Love case that the Yocona district, under the law, could not be reimbursed in this manner for such expenditures, the Yocona district brought this action to recover of the Tallahatchie district its agreed proportion of one hundred thirty thousand dollars. The Tallahatchie district defended the action on three grounds: (1) That the Yocona district had no title or interest in the property it attempted to sell, and therefore could pass none to the Tallahatchie district; (2) that the Tallahatchie district had no power, under the law, to make the contract sued on; and (3) that the contract was void, because the meeting of the drainage commissioners of the three districts at which the contract was authoried was held outside this state, and no meeting was afterwards held in the state to ratify and approve the contract.

We think it would be well to consider, first, the powers of drainage commissioners under chapter 195, Laws of 1912 (Hemingway's 1927 Code, sections 4046 to 5053, inclusive), for it will be observed at once that the extent of their powers has a very material bearing on the question whether the Tallahatchie district, under the law, was authorized to purchase the property sold to it by the Yocona district; and, furthermore, such a consideration may throw some light on the question as to whether the latter district had such title or interest in the property as to authorize its sale and transfer to the former district.

It is contended, on behalf of the Tallahatchie district, that, under the governing drainage laws, the drainage commissioners have no powers except those expressly given, that the exercise of any powers not so given is ultra vires, and not binding on the district, and that position is sought to be maintained by the decisions of this court with reference to acts of boards of supervisors in the exercise of their jurisdiction over county affairs.

It is true that it is the established doctrine of this state, as held in Amite County v. Mills, 138 Miss. 322, 102 So. 465, 737; Smith v. Mangum, 127 Miss. 192, 89 So. 912, and several other decisions of this court, and boards of supervisors have no implied powers, that all their acts must be expressly authorized by law, and, furthermore, that they can only act through their minutes spread upon the records of their office.

We do not think that is true of drainage commissioners under this statute. The statute itself expressly provides "that this act shall be liberally construed to promote ditching, drainage and the reclamation of wet, swampy and overflowed lands." Section 33, chapter 269, Laws of 1914; Hemingway's 1927 Code, section 4999. Furthermore, we think the case of Jones Bayou DrainageDistrict v. Sillers, Clark Sillers, 129 Miss. 13, 91 So. 693, is decisive of this question, by analogy. Therein the court held, in construing the statute here involved, that drainage commissioners have a wider discretion in the exercise of the powers conferred on them by law than boards of supervisors. The facts in that case, in brief, were as follows: The landowners, proposing the drainage district, held a meeting wherein it was decided to create the district, that three named persons should act as temporary drainage commissioners, and that certain named attorneys be selected as attorneys for the district. Thereafter the district was created as planned at this meeting. The attorneys selected at the meeting were accepted by the commissioners, and served the district; they prepared all necessary papers, and performed other services required in creating the district. There was no express contract between the drainage commissioners and the attorneys for the services of the latter, and no minutes were kept by the drainage commissioners showing their employment. The court held, under the facts stated, that an implied contract arose on the part of the district to pay the attorneys a reasonable compensation for their services.

It is true that a drainage district, under the statute in question, is a political subdivision of the state. It is created for the purpose of draining and reclaiming wet and overflowed lands, as well as to preserve the public health and convenience. For the accomplishment of those purposes, it is vested with the necessary governmental powers. Standard Oil Co. v. NationalSurety Co., 143 Miss. 841, 107 So. 559. But the governmental powers exercised by a drainage district under the statute, as compared with those exercised by boards of supervisors, are small. It is provided in section 4 of the act (chapter 159, Laws of 1918; Hemingway's 1927 Code, section 4952), that such a district shall constitute "a body politic by a name and style selected," and in the same section of the act, which is embodied in Hemingway's 1927 Code, section 4953, it is provided that the commissioners shall adopt a common seal for the district, and,"they may do all acts and things not inconsistent with this act,and with the laws of this state, that may be proper to effect thepurpose and object of this act." (Italics ours.) Under the statute, a drainage district is predominantly a business corporation engaged in the reclamation of swamp and overflowed lands for agricultural purposes. That is the outstanding purpose of the statute. The duties of drainage commissioners are more largely administrative than governmental; they have no authority to pass ordinances for the government of the district; their main duties are to administer the business affairs of the corporation. Nor are they required by the statute to keep minutes of their proceedings. On the other hand, boards of supervisors are invested by the law with large governmental powers. They not only administer the financial affairs of their counties, but havequasi-legislative powers. They are authorized by law to pass ordinances with reference to certain matters. The issuance of bonds for various county and county district purposes, which boards of supervisors are authorized by law to do, is legislative in its character rather than executive or judicial, although it involves, to the same extent, the exercise of all three of those powers; and that is true of the exercise by boards of supervisors of powers conferred on them by law to organize road districts, and issue the bonds thereof, for road purposes.

In view of what we have said with reference to the nature and purpose of the organization of drainage districts, we will consider: First, the question whether or not the Yocona district had such interest or title in the property involved as to authorize it to sell and transfer it to the Tallahatchie district. It is beyond question that, under the decisions in theMcLemore and Love cases, supra, the act of the Yocona district in acquiring the property sold by it to the Tallahatchie district was ultra vires and void; but, does it follow therefrom, as a logical result, that the Yocona district could not, under the law, sell and transfer the property to the Tallahatchie district? We think not. The Yocona district had possession of the property, and had a better title to it than any one else. Under the law, the engineer who made the surveys and records, and did the other necessary work which constituted part of the property sold, could not, in a suit for that purpose, recover such property from the Yocona district, and that is true of the persons who sold and delivered to the Yocona district the tangible, personal property which constituted part of the property sold by the latter to the Tallahatchie district. Here we have a corporation selling personal property to another, which property, under the law, it had no right to acquire and own. Its action in acquiring the property was ultra vires and void. The purchaser takes the property and agrees to pay for it. He is sued for the purchase price, and defends on the ground that the seller had no right to acquire and own the property, but, at the same time, retains possession and use of the property. The Yocona district had no use for the property it sold to the Tallahatchie district. Should it have given it away or destroyed it? We think not. We are of the opinion that the Yocona district had such an interest and title in and to the property it sold to the Tallahatchie district as authorized it to make the sale and transfer possession thereof. This view is supported by the cases ofMiddleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; Wall v. Darby, 132 Miss. 94, 95 So. 791; WattsMercantile Co. v. Buchanan, 92 Miss. 540, 46 So. 66; Kerfoot v. Bank, 218 U.S. 281, 31 S.Ct. 14, 54 L.Ed. 1042; 19 R.C.L. p. 1062, section 35.

As to the question whether or not the Tallahatchie district had the right, under the law, to purchase and pay for property, we think there is little additional to be said. Chapter 159, Laws of 1918 (Hemingway's 1927 Code, section 4955), provides, among other things, that the drainage "commissioners shall prepare plans for the improvement within the district, as prayed for in the petition, and shall procure estimates from a competent engineer, or engineers as to the cost thereof; and, for that purpose, the board of commissioners may employ such engineers and other agents as may be needful, such engineer [or engineers] to give bond, in the sum of at least, one thousand dollars," etc., ". . . and may purchase such material and supplies, and pay for such publications and printing necessary or incidental in the prosecution of the work; and said board of commissioners shall provide for reasonable compensation to the engineer or engineers, attorneys and other agents, and for the cost of such material and supplies and publications and printing, and the same shall be taken as a part of the costs of the improvements." Upon its organization, the commissioners of the Tallahatchie district found it unnecessary to employ an engineer to make a survey of the district and plans and specifications for the work to be done, and also found it unnecessary to purchase new tents, trucks, camp outfits, surveyors' instruments, stakes and other personal property required to carry out the plans of the district. They found all this information and property in the possession of the Yocona district, and they decided it would answer their purpose as well, or better, than to have the work done all over again and purchase anew the required stakes, tents, trucks, camp outfits, etc. The statute expressly authorizes the commissioners to prepare plans for the improvement of the district, and, if necessary, to employ an engineer or engineers for that purpose. We think the statute is broad enough to authorize the commissioners to adopt and purchase the plans and specifications made either before or after the organization of the district, if, in their judgment, such surveys, plans and specifications meet the requirements of the district. And certainly there is nothing in the statute which prohibits the commissioners from purchasing secondhand material and supplies for the improvement of the district. The statute provides that if an engineer is employed he shall give bond to the commissioners for the faithful performance of his duties. This provision is stressed in the argument as meaning that the commissioners are without authority to purchase and adopt the plans and specifications of an engineer who is not under bond. We do not think that position sound. An engineer for a drainage district who has faithfully and efficiently performed the duties required of him would be entitled, to the agreed compensation for his services, notwithstanding his failure to give bond as required by the statute.

The question whether the contract sued on is void because it was authorized by a meeting of the commissioners of the three drainage districts held outside the state, and outside their districts, was raised by the Tallahatchie district in two pleas, which were held to be insufficient in law. These pleas, in substance, set up that the contract was void because this meeting was held outside the state and outside the Tallahatchie district, and no minutes were made of the meeting, and no meeting was held within the state to ratify and approve the contract sued on. Under the rule that a plea is to be taken most strongly against the pleader, it will be presumed that the contract was executed within the state and within the drainage districts, parties to the contract. Putting it differently, it will be presumed that the commissioners of the Yocona district executed the contract within the borders of that district, and likewise the commissioners of the Tallahatchie and Panola districts executed the contract within the borders of their respective districts. We think this meets the requirements of the law. The statute, as we have stated, does not require the drainage commissioners to keep minutes of such contracts. All of the commissioners of each district signed the contract. Under the authority of Jones Bayou Drainage District v. Sillers, Clark Sillers, supra, that was sufficient to bind all parties to the contract.

The view we have taken of this case renders it unnecessary to decide whether or not chapter 159, Laws of 1918 (Hemingway's 1927 Code, section 4958), was intended only to provide against double taxation of a drainage district.

We find no merit in the other questions argued on behalf of the Tallahatchie district, and we do not think they are of sufficient seriousness to call for discussion by the court.

Affirmed.