Franklin v. Ellis , 130 Miss. 164 ( 1922 )

Holden, J.,

delivered the opinion of the court.

This is an injunction suit filed by M. H. Ellis and others as resident taxpayers, against L. C. Franklin and others, who constitute the board of levee commissioners for the Yazoo-Mississippi Delta levee district chartered by chapter 168, Laws of 1884, seeking to enjoin the levee board from paying the salaries of certain employees of the board, namely, Major T. G. Dabney, consulting engineer, B. B. Bagley, superintendent of maintenance, Lee Trimble, foreman of maintenance, and O. S. Longino, paymaster. These employees were employed by the board for a term of two years by contract at certain salaries, to wit, four thousand fiv-e hundred dollars per annum for the said Dabney, two thousand four hundred dollars per annum, for Bagley, one thousand three hundred and eighty dollars per annum for the said Trimble, and one thousand eight hundred dollars per annum for the said Longino ; the contract of employment extending into the year of 1924.

The basis of the complaint against the payment of the salaries of these employees is that the act of the Legislature of 1922, chapter 170, passed March 31,1922, expressly provides for the number and character of employees of the board, and regulates the salaries to be paid- to them, and that the payment by the board of the salaries to the employees named above would be in violation of said act of the legislature.'

The bill further seeks to enjoin the board from paying out large sums of money for certain quantities of materials and labor contracted for and used in preventing a breach of the levee line at Devil’s Hole in Tunica county during the recent high water of the Mississippi river, because the contracts for said materials and labor were made by the board in violation of, and without first complying with, chapters 169 and 170 of the Acts of 1922.

Without setting out the entire legislative acts involved we shall refer to the substance of the pertinent parts applicable to the case. Chapter 169 provides that, except in cases of emergency to be mentioned later, the board is required to let all contracts for material and work in connection with the maintenance or repair of the levees by advertisement for three weeks in a newspaper, and the board shall receive bids for said work and award the contract to the lowest responsible bidder.

It is also further provided in the act that — “When a grave emergency caused by high water or caving banks shall exist along the levee line of said district and said emergency, its cause, and probable effect, shall be certified to said board of levee commissioners by the chief engineer of said levee district; and said levee board of commissioners shall find after personal investigation and inspection that said emergency actually exists; and the findings of said board of levee commissioners, together with the certificate of the chief engineer of said levee district as to said emergency, shall be placed of record on the minutes and proceedings of said board of commissioners either at the regular or special meeting of said board or in vacation ; the said board of commissioners may then, without advertising the same as above provided, proceed to let any necessary contract for emergency work.”

Chapter 170 provides that the board shall have a president, a chief engineer, an assistant chief engineer, an attorney or firm of attorneys, a pump engineer, a secretary and treasurer, a caretaker, and such other clerical and stenographic help as needed, and such common laborers as may be deemed necessary to carry on the work of the board, but that said board shall have no other paid officers or employees, except in cases of emergency. The act then prescribes that the salary or compensation of the officers and employees shall be fixed by the board within certain limitations, which we think is unnecessary to set out.

Thus it will be observed the bill is for the purpose of permanently restraining the board from paying the salaries of the employees hired by contract with the board prior to the passage of the said chapter 170, because such -contract of employment is contrary to the terms of the act.

And second, the suit is to prevent the board from paying for the work done or materials purchased by the board, because the board failed to comply with said chapter 169, in failing to advertise and let to lowest bidder, or declaring an emergency situation.

The answer and defense of the levee board, in short, is that the board had already contracted with the employees for a term of two years at certain and fixed compensation, and chapter 170 is void as an impairment of the obligation of contract, because it was enacted after the contract of employment was made by the board, and void as an unreasonable interference with the exercise of the constitutional power of the ievee commissioners in efficiently carrying on the necessary work to preserve the levee system.

And second, the board admits that it contracted for work and material used in repairing and maintaining the levee line without first complying with said chapter 169, but wholly disregarded the act for the reason that the work to be performed and the materials necessary thereto were needed and used in an emergency in an effort to preserve the levee against flood waters and protect the lives and property of the levee district; that the occasion being one of emergency the board could not have efficiently, and successfully functioned if it had waited and complied with the requirements of the act.

The levee board therefore contends that said chapter 169 is unconstitutional and void because it impairs or destroys the efficient functioning of the board in cases of emergency requiring quick action to prevent a breaking of the levee line. It is urged that the levee board is created by article 11 of the state constitution, and that section 232 thereof provides that “the commissioners of said levee districts shall have supervision of the erection, repair, and maintenance of the levees in their respective districts,” which power so granted cannot be unreasonably restricted so as to impair its efficient exercise by the levee commissioners.

The position taken by the levee board was attempted to be sustained by proof before the chancellor, showing that the requirements of the act are such that the board could not efficiently exercise its constitutional power of supervision of the maintenance and repair of the levees in cases of emergency, because of the delay incident to the requirements of the act before work by the board could be commenced. The testimony was admitted over the objection of the appellee; and we think it was competent, and shall consider it in reaching our conclusions in the case.

The lower court decreed that said chapter 169 was unconstitutional because it was unreasonable and impaired the proper functioning of the board in cases of emergency, and thus restricted or destroyed the exercise of the full supervising power of the board as granted by the Constitution. And. second, the chancellor held that said chapter 170 was constitutional as a regulation, and not an impairment of the obligation of contract.

We shall consider and discuss chapter 169 first. This act was intended to regulate the manner and method of contracting for labor and material used in the erection, repair, and maintenance of the levees, by requiring that such contracts be let to the lowest responsible bidder after due public notice. But it also provides that when a grave emergency, caused by high water or caving banks shall arise, and this condition is certified by the chief engineer and the board of commissioners and spread upon the minutes of the board, either at a regular or special meeting, or in vacation, then the board may proceed to let any necessary contract for the emergency work without the delay of advertising for public bids.

We have fully examined the evidence in this record as to what is a grave emergency, and what should be done in such cases, and how soon or quick it should necessarily be done in order to successfully prevent a breach in the levee and overcome the danger of one. We also judicially know some things of common knowledge that are material to the issue.

We shall not discuss in detail the testimony offered by the board to sustain its view, but shall only point out that the testimony convinces us the requirements of the legislative act are reasonable and can in any case be complied with and not impair the efficient functioning of the levee board. It appears from the record the levee commissioners and other officers could be gotten together within a few hours, and the finding of the commissioners and the certificate of the chief engineer could be recorded upon the minutes of the board within a short while.

This may be done in vacation, which means that in cases of emergency the board may record the emergency facts at any time, and perhaps at any place in the district, and then proceed without delay.

The testimony offered by the levee board shows that the grave emergency situation can be certified, confirmed, and spread upon the minutes within a short time after it is discovered by the chief engineer or his associates. One of the witnesses testified that the procedure required under the act could he carried out in less than one-half of a day, and that the emergency could he properly met and the danger overcome if operations by the board could be commenced within a day after the discovery of the danger.

It does not appear from this record that any emergency arose in this cáse, or may arise, which could have been successfully dealt with in securing labor and material, considering that already on hand, under the act, if the authority to contract for it could be exercised within twelve hours, or even longer, after the emergency condition is found by the chief engineer.

We are of opinion that chapter 169 is constitutional as a reasonable regulation of the administration of the affairs of the board. The legislature has the right to prescribe, alter, or change at its discretion the procedure and method of operation of the board, so long as it does not infringe upon the proper and efficient exercise of the power granted the levee commissioners by the constitution. The legislative act here involved merely regulates the procedure and method of the functioning of the board, and may be considered as an additional regulation or an amendment to the charter under chapter 168, Laws of 1884. Bobo v. Board of Levee Commissioners, 92 Miss. 792, 46 So. 819.

Coming to the second proposition involving the validity of chapter 170, Acts of 1922, after a careful consideration we have reached the conclusion the act is valid as a reasonable regulation of the administration of the affairs of the levee board, and does not impair its proper functioning, and also reasonable as to the number and character of employees and their compensation. But the contracts between the levee board and its employees which were made and entered into before the passage of the act are not affected by the act because of the constitutional prohibition against impairment of obligation of contract.

We are satisfied the contracts of employment for a term of two years, entered into between the board and the employees named in the bill of complaint herein, is a valid contract which cannot be annulled by the subsequent act of the legislature. Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302.

The levee board ivas duly authorized to contract for the services for a term of two years, and having so contracted, and the services to be rendered being that of a mere employee employed to perform certain and specific • private duties for a public agency, it was not a contract that could be annulled at the pleasure of the legislature. Therefore the contract made with these employees prior to the legislative enactment is valid and binding.

In view of the conclusions announced above we decide that the lower court erred in holding that chapter 169 is void, and it was error to hold that the contract between the board and employees made prior to the passage of chapter 170 was void, and the upholding of the balance of chapter 170 as constitutional and valid was correct. Therefore the decree is accordingly reversed and judgment entered here to meet the views expressed hereinabove.

Reversed aAid judgment here.