Bobo v. Board of Levee Com'rs for Yazoo-Mississippi Delta

• Decision Date: 29 June 1908
• Docket Number: 13,399
• Court: Mississippi Supreme Court
• Parties: FINCHER G. BOBO v. BOARD OF LEVEE COMMISSIONERS FOR YAZOO-MISSISSIPPI DELTA

46 So. 819

92 Miss. 792

FINCHER G. BOBO v. BOARD OF LEVEE COMMISSIONERS FOR YAZOO-MISSISSIPPI DELTA

No. 13,399

Supreme Court of Mississippi

June 29, 1908

FROM the chancery court of, second district, Coahoma county, HON M. E. DENTON, Chancellor.

Bobo appellant, was complainant in the court below, and the board of levee commissioners of the Yazoo-Mississippi Delta appellee, was defendant there. From a decree dissolving an injunction complainant appealed to the supreme court. The facts are stated in the opinion of the court.

Decree affirmed.

J. W Cutrer, for appellant.

The act was not published as required by sec. 234 of our state constitution, hence is unconstitutional. That it should have been so published is evident, since it affects the taxation and the revenue of the levee board. The language of sec. 234 of the constitution is plain and unambiguous, was mandatory upon the legislature, and should have been obeyed. 8 Cyc 762; Pollock v. Farmers' Trust Co., 158 U.S. 617; Newell v. People, 7 N. Y. Ct. App., 84; Beck v. Allen, 58 Miss. 177. This court, in construing sec. 234 of the constitution, held that relief to a person injuriously affected by an undue extension of levee boundaries could be had only in the manner provided by the section, and that by its terms even the legislature was prohibited from any consideration of change of boundary of the levee districts except upon four weeks' previous publication of the proposed bill. Smith v. Willis, 78 Miss. 243, 28 So. 878. See also Green v. Robinson, 5 How. (Miss.), 80, 100, approved in Brien v. Williamson, 7 How. (Miss.), 14.

There can be no question that in its practical workings and operation the act in question affects the revenue of the levee disstrict. Newell v. People, supra. And it seeks to divert the taxes collected, and collectible for levee purposes, from the channel marked out by the constitution. Sec. 234 of the constitution contains the mandatory requirement that the taxes, derived under the provisions of sec. 236, shall be paid into the treasury of the appellee. It was never considered by the framers of our constitution that there would be a peripatetic treasurer of the board, or that a dozen different persons would be at the same time authorized to perform any or all of the functions of the treasurer's office. The word, treasury, is used in a preceding section of the constitution, and one rule of constitutional interpretation is that where a word is used in a certain sense in a preceding portion of the constitution, it will be construed as having the same sense when subsequently employed. Epping v. Columbus, 117 Ga. 263; Green v. Waller, 32 Miss. 650; 8 Cyc., 762.

The act is a highly penal statute, and must be construed strictissimi juris. Certain penalties are pronounced against the treasurer, the commissioners themselves, and all tax collectors and custodians of funds of appellee. Yet the language of the statute, as to methods of procedure, duties of officers and disposition of funds, is so vague that the board and its agents cannot with certainty know whether in attempting to carry out its provisions, they are acting within its requirements.

The act fails in its title and in the subject matter to describe appellee as a corporation existing under the laws of the state. Unless the title is such as to leave it unquestionable that the subject matter of this legislation was intended to apply to the appellee, and to no other association or corporation, the act is bad. People ex rel. Howe, 177 N.Y. 499; Henderson v. Ins. Co., 20 L. R. A., 827; Ordronaux' Const. Leg., 590; Dixon v. Poe, 60 L. R. A., 308; Clark v. Board of Comm., 54 Kas., 634; Ham v. Levee Com'rs, 83 Miss. 557, 35 So. 943.

The title and the subject matter of the act do not in terms refer to and include appellee. The title of the act, and, accordingly, the act itself must be held defective. Sykes v. People, 132 Ill. 32; Griswold v. Sedgwick, 6 Cowan (N. Y.), 455; Commonwealth v. Perkins, 1 Pick. (Mass.), 388; Bates v. State Bank, 46 Am. Dec., 294; Clark v. Hills, 34 N.E. 13; Thompson v. McCorkle, 34 N.E. 813.

The act is bad, because it seeks to deprive the appellee of its property without due process of law, and to deny to appellee the right to contract with reference to its property, property-rights and franchises. There is a general impression among many legislators that the state can deal with its subordinate governmental corporations and their property according to its pleasure; that these corporations can be abolished at will and their property disposed of at any time by act of the legislature. This is an incorrect conception. People ex rel. Leroy v. Hurlbut, 24 Mich. 44; Gemmer v. State, 66 L. R. A., 82. The appellee and other bodies of like creation are separate and distinct corporations, having property rights under the constitution which must be protected, and of which they cannot be deprived without due process of law. Dartmouth College v. Woodward, 4 Wheat., 518; People v. Murray, 149 N.Y. 367; Lowell v. Boston, 111 Mass. 454; Allen v. Jay, 60 Me,, 124; State v. Foley, 30 Minn. 350; Grogan v. San Francisco, 18 Cal. 590; Re Mahon, 171 N.Y. 263; Bush v. Orange Co., 159 N.Y. 212. The discretion of the legislature, with reference to the use or possession or handling of funds and property of municipalities and of bodies of the same character as appellee, is not absolute, but is clearly restricted by the constitution. People v. Detroit, 28 Mich. 228.

Where a corporation, such as is appellee, is created for the benefit of an individual community, no matter how extended the community may be, the possession of property, the acquisition of rights and the administration of affairs, of the corporation, must be based and maintained solely upon the footing of private corporations; and such rights cannot be taken away without due process of law. Whenever property shall have been acquired by the corporation, whether it be personalty or realty, stocks, bonds or money, the property thus actually acquired, though acquired through legislative permission, belongs to the corporation for its private purposes, as for instance in this case, to do everything necessary to maintain a levee system and pay outstanding debts. Such a corporation is the constituent of state government, and is entitled to the full protection of the law as to its property. Kellyville Coal Co. v. Harrier, 69 N.E. 470; State v. Bobbins, 73 N.E. 470. The right to contract is one of the inalienable rights of corporations as well as of individuals, and any deprivation of such right is a deprivation of property right. Ritchie v. People, 29 L. R. A., 79; Marshall v. Nashville, 109 Tenn. 495. For the same reason also, the legislature cannot direct what contracts corporations shall make, or what disposition they shall make of their funds. Helena Consolidated Water Co. v. Steele, 37 L. R. A., 412; Re Brooklyn Ass'n, 60 N. Y. Ct. App., 399; People v. Batchelor, 53 N.Y. 128; Simon v. Northrup, 30 L. R. A., 171; People v. Chicago, 2 Am. Rep., 278.

This state has placed itself in line with the current of authorities in this matter by holding that amounts recovered by way of taxes or as revenue by municipalities cannot be controlled by legislative enactment, nor can the legislature interfere with the discretionary power vested in such corporations. Aberdeen v. Sanderson, 8 Smed. & M., 663. To the same effect is Aberdeen Academy v. Aberdeen, 13 Smed. & M., 645, where the legislature sought to direct the authorities of the town of Aberdeen to devote certain funds to the purpose of establishing and maintaining a certain public academy; the court holding that the legislature may take away the franchise of the municipality and abolish it entirely, but, if the municipality be permitted to continue to exist and to collect taxes, the disposition of such property of the municipality rested in the municipality.

By the third section of the act, the treasurer of the appellee is required to deposit in the bank named by appellee, all of its funds without compensation paid to appellee for the use of such funds, and the treasurer is required to keep the funds in such bank at all times "except when drawn in regular course of business. This is in derogation of the discretionary rights and powers of appellee to control its own affairs and to handle its funds vested in it by the state constitution. State v. Robbins, 73 N.E. 470; Kellyville Coal Co. v. Harrier, 69 N.E. 927. The legislature cannot require the appellee, a corporation, to lend its money or place the same on deposit with another corporation, or designate what kind of security shall be taken by appellee as collateral. Bowdoingham v. Richmond, 19 Am. Dec., 197; People v. Bachelor, 53 N.Y. 128, 13 Am. Rep., 480; Marine Bank v. Fulton Bank, 69 U.S. 256; State v. Bartley, 23 L. R. A., 67. If any depository should become insolvent, there is no power vested in appellee, in the act, to declare the office filled by such depository vacant and to elect or appoint a successor, nor is there power in appellee to stop the payment of further funds over to such insolvent depository. The act, in its actual requirements, will create a relationship of debtor and creditor between the different banks made depositories and appellee, which must of necessity be accompanied by great risks. As the officers of appellee are required to give bond for faithful performance of their trusts, and as the penalties mentioned in the act are severe, the operation of the act will be a great hardship on appellee.

The statute requires that the office of a depository shall be filled by, and only by, a bank or trust company having capital stock. The statute is therefore unconstitutional in that it discriminates illegally against all other par...