Board of Mississippi Levee Com'rs v. Kellner

Decision Date10 June 1940
Docket Number34175
PartiesBOARD OF MISSISSIPPI LEVEE COM'RS v. KELLNER
CourtMississippi Supreme Court

Suggestion Of Error Overruled September 4, 1940.

APPEAL from the circuit court of Washington County, HON. S. P. DAVIS, Judge.

Suit by Ernest Kellner against the Board of Mississippi Levee Commissioners to recover salary allegedly due. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Wynn Hafter & Lake, and Thomas & Cook, all of Greenville, Sillers & Roberts, of Rosedale, V. B. Montgomery and C. M. Murphy both of Belzoni, for appellant.

The appellee by the record is bound to the position that the attorney for the Board of Mississippi Levee Commissioners is not a public officer, that such an attorney is simply an employee. The suit as against the individual members of the Board has been abandoned.

Bank of McLain v. Pascagoula Nat. Bank, 117 So. 124, 150 Miss. 738.

The Board of Mississippi Levee Commissioners had the right to discharge the appellee at any time without liability on its part.

Chap. 110, Laws 1930; Chap. 90, Laws of 1904; Chap. 160, Laws of 1910; Chap. 152, Laws of 1918; Chap. 167, Laws of 1922; Chap. 245, Laws of 1926; Clay County v. Chickasaw County, 1 So. 753, 64 Miss. 534; 59 C. J. 1097, Sec. 647; 25 R. C. L. 1050; Gift v. Love, 144 So. 562, 164 Miss. 442; Rawlings v. Ladner, 165 So. 427, 174 Miss. 611; Alexander v. Graves, 173 So. 417, 178 Miss. 583; Easterling v. Howie, 176 So. 585, 179 Miss. 680; Sec. 1394, Code 1930; Oldham v. Board of Drainage Com'rs of Lafayette County, 99 So. 675, 134 Miss. 652; 29 C. J. 247; Young v. City of Ashland, 125 S.W. 737; Clark v. Miller, 105 So. 502, 142 Miss. 123; De Soto County v. Stranahan, Harris & Oatis, 131 So. 640, 159 Miss. 23; Universal Motor Co. v. Newton County, 131 So. 827, 158 Miss. 873; Green v. Bd. of Sup'rs of Adams County, 161 So. 139, 172 Miss. 573; Lee County v. James, 174 So. 76, 178 Miss. 554; Hartford Acc. & Ind. Co. v. Natchez Inv. Co., 132 So. 535, 161 Miss. 198; Tucker Printing Co. v. Bd. of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336; Adams v. Williams, 52 So. 865, 97 Miss. 113, 39 L. R. A. (N. S.) 853, Ann. Cas. 1912C, 1129.

Appellant paid out in salary all that it was authorized to pay, and the public fund cannot be made to suffer from discharge of appellee.

Chap. 110, Laws of 1930; Stokes v. Newell et al., 159 So. 540, 172 Miss. 289; Stokes v. Newell et al., 165 So. 542, 174 Miss. 629.

A public corporation can only be sued at the place, and in the court provided for by statute, and is not liable to be sued at all unless the place where, and the court in which suit can be brought is provided by statute, and unless the method and manner of bringing the public corporation into court has been prescribed by statute.

Simpson v. Neshoba County, 127 So. 692, 157 Miss. 217; State v. Woodruff, 36 So. 80 83 Miss. 111; State v. Woodruff, 150 So. 760, 170 Miss. 744; Fernwood Rural Sep. Sch. Dist. v. Universal Rural Sep. Sch. Dist., 154 So. 268, 170 Miss. 35; Storey v. Rhodes, 174 So. 560, 178 Miss. 776; City of Grenada v. Grenada County, 76 So. 682, 115 Miss. 831; Bd. of Levee Com'rs for Yazoo-Miss. Delta v. Foote & Davies Co., 71 So. 163, 111 Miss. 10; McCoy v. Watson, 122 So. 368, 154 Miss. 307; Burns v. Burns, 97 So. 814, 133 Miss. 485; Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 31 So. 790, 80 Miss. 343; Gully v. Williams Bros., 180 So. 400, 182 Miss. 119; Am. Oil Co. v. Marion County, 192 So. 297; Bd. of Sup'rs of Lee County v. Payne, 166 So. 332, 175 Miss. 12.

Appellee, Kellner, as cross appellant, seeks to have review of judgment of lower court sustaining separate demurrer of individual defendants below, Brown, Toney, Nicholson and Barry, without appealing therefrom and without process against said individual defendants in this court.

Sec. 22, Code 1930; Trolio v. Nichols, 132 So. 750, 160 Miss. 611; Buckley v. United Gas Public Service Co., 168 So. 462, 176 Miss. 282; Culpepper v. Holmes, 154 So. 726, 170 Miss. 235; Walter Fisher Co. v. I. Lowenberg & Co., 149 Miss. 761, 116 So. 91; Planters Lbr. Co. v. Plumbing Wholesale Co., 180 So. 793, 181 Miss. 782.

F. H. Montgomery, of Clarksdale, and E. J. Bogen, of Greenville, for appellee.

Only one question is involved on the direct appeal of the defendant, Levee Board, in this case. Assuming that the plaintiff was an employee and not a public officer, as was held by the trial court, is the defendant, Levee Board, liable to plaintiff for actual damages sustained by him as the result of his discharge without cause prior to the expiration of his contract of employment?

Chap. 110, Laws of 1930; Chap. 175, Laws 1912.

The provision contained in Chap. 110, Laws 1930, that the attorney of the board shall be deemed an employee of said board "subject to be discharged at any time" and shall hold his position for the term for which he was employed and no longer, unless sooner discharged by the board, does not authorize the board to arbitrarily discharge the attorney without consequent damages.

Stokes v. Newell, 174 Miss. 629-642.

Under our form of government any exercise of arbitrary power is abhorrent, and even when the grant of such power is within legislative authority courts will never enforce the grant unless it is clear and express.

Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 46 L. R. A. (N. S.), 797; Yerger v. State, 91 Miss. 802-822.

The statute relied on in the case of Ware v. State, 111 Miss. 599, is identical in meaning with the statute relied on in this case. That statute provided "the State Board of Health may at any meeting remove any County Health Officer"; the statute here provides "subject to be discharged at any time." There is no difference in the power to remove "at any meeting" and the power to discharge "at any time". The proper construction of that statute did not vest the State Board of Health with arbitrary power of removal, so then, the proper construction of the statute here does not vest the Levee Board with arbitrary power of removal.

In this case any other construction of the statute would render meaningless the other provision of the Levee Laws fixing the term of office of the attorney at two years from the second Monday of July of the even years.

Ware v. State, 111 Miss. 599.

The distinction between a statute authorizing a removal for cause and a statute authorizing an arbitrary removal is clearly pointed out in the case of Ex Parte Brown, 112 Miss. 236.

The defendant, Levee Board, relies on the case of Oldham v. Board of Drainage Commissioners, 134 Miss. 652. In that case this court held that under the express provisions of Section 53, Chapter 197, Laws of 1912, the drainage board was authorized to discharge its attorney and other employees at will. There is no such express provision in the Levee Laws.

The attorney for the Levee Board is a public officer.

Shelby v. Alcorn, 36 Miss. 276; Act of November 27, 1865; Chap. 175, Laws 1912; Chap. 110, Laws 1930; Chap. 92, Laws 1904; Chap. 161, Laws 1910.

It is true that Chapter 110, Laws 1930, provides that he shall be deemed an employee of the Board. This designation does not and the Legislature cannot change the character of his service to the public.

Yerger v. State, 91 Miss. 802.

Section 175 of our State Constitution provides the exclusive method by which a public officer may be removed from office.

State Bd. of Health v. Matthews, 113 Miss. 510.

By Section 1 of the original act of November 27, 1865, creating the Levee Board, the Levee Board is authorized to sue and be sued and to plead and be impleaded in and about the things that are committed to their jurisdiction, one of which is the employment of an attorney whose compensation is fixed by law.

Under the decisions of this court which are in accord with the unanimous decisions of other courts, there being no express authority to the defendant, Levee Board, to discharge the plaintiff at its will or pleasure, said defendant, Levee Board, is liable to plaintiff for the salary under his contract of employment as and when the same becomes due, and that, therefore, the decision of the trial court should be affirmed on direct appeal.

Argued orally by W. C. Roberts and V. B. Montgomery, for appellant and by Ernest Kellner and F. H. Montgomery, for appellee.

OPINION

McGehee, J.

On the second Monday of July, 1938, which was the regular time fixed by law for the election of an attorney for the Board of Mississippi Levee Commissioners, at Greenville, Mississippi the appellee, Ernest Kellner, was duly elected by the board as such attorney for the term of two years, ending on the second Monday in July, 1940, as provided by law, at an annual salary of $ 3, 000, payable $ 250 per month, and continued to serve in that capacity from the second Monday in July, 1938, until the second Monday in July, 1939, when he was summarily discharged as such attorney, effective instanter, by an order of the appellant, Board of Mississippi Levee Commissioners, without any reason being assigned for such action, and without any reason existing therefor so far as the record now before us discloses. In fact, the contention of the appellee that his contract of employment was arbitrarily terminated by the appellant is not seriously contested, it being the contention of the appellant that it had the right to discharge the attorney at any time either with or without cause for so doing. The only explanation suggested as to why the order of the board whereby the attorney was elected for the two year period was arbitrarily terminated at the end of the first year is the fact that there had been a change in the board's personnel. Inquiries made by some of the members of the board and...

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    ...law in a couple of cases when the venue statutes were silent as to the defendant involved. In Board of Mississippi Levee Commissioners v. Kellner, 189 Miss. 232, 251, 196 So. 779, 786 (1940), the Court held that in the absence of a statute prescribing the place of venue for suing a public c......
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    ...board to be exercised at "its discretion", the grant means a legal and not an arbitrary discretion, Board of Mississippi Levee Commissioners v. Kellner, 189 Miss. 232, 196 So. 779. This was the rationale, supported by a specific decision of the Supreme Court of New Hampshire, on which the d......
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