Fighting Bayou Drainage Dist. v. Leflore County
| Decision Date | 22 November 1937 |
| Docket Number | 32739 |
| Citation | 180 Miss. 223,177 So. 6 |
| Court | Mississippi Supreme Court |
| Parties | FIGHTING BAYOU DRAINAGE DIST. v. LEFLORE COUNTY et al |
Suggestion Of Error Overruled January 3, 1938.
(In Banc.)
1. PUBLIC LANDS.
Where county superintendent of education leased school land which was not situated in city, town, or village, and tenant went into possession thereof, but no order was entered on minutes of board of supervisors directing or approving lease, it did not become effective as such, and lessee, at most, became only a tenant of land at will (Code 1930, section 6769).
2 DRAINS.
Where county superintendent of education leased school land for years 1927 to 1931, inclusive, and tenant went into possession thereof, but no order was entered on minutes of board of supervisors directing or approving lease, the tenancy did not shift liability for payment of drainage taxes from county to tenant under statute imposing liability on lessee (Laws 1924, chapter 267; Code 1930, section 6769).
3 DRAINS.
Right of drainage district to maintain suit against county for drainage taxes could not be defeated on ground that claim for taxes had not been presented to and rejected by board of supervisors, where allegation of such presentation and rejection was not denied (Code 1930, section 253, Laws 1932, chapter 179).
4 DRAINS.
Where county superintendent of education verbally leased school land to tenant for year 1932 and pursued same course for two succeeding years, lease did not relieve county of liability for drainage taxes under statute imposing liability on lessee (Code 1930, sections 6767, 6769).
5. PUBLIC LANDS.
Lease for school land, though only for one year, cannot rest in parol, and terms thereof must appear from an order on minutes of board of supervisors directing or approving the lease (Code 1930, section 6769).
6 DRAINS.
Where payment of drainage taxes on school land was not discussed at time lease was made with county superintendent of education, nor referred to in oral contract of lease therefor, liability for payment of drainage taxes remained with board of supervisors, under statute imposing liability on lessee (Code 1930, sections 6767, 6769; Laws 1924, chapter 267).
7. APPEAL AND ERROR.
Where drainage tax for year 1934 was not due when drainage district filed suit to recover drainage taxes on school land. Supreme Court would not determine whether board of supervisors or tenant was liable for drainage taxes for that year, since court will not give an advisory opinion.
8. DRAINS.
Fact that income obtained by county from school land for each of years involved in suit by drainage district to recover drainage taxes on school land had been spent for school purposes did not preclude recovery of taxes (Code 1930, section 6767).
HON. R. E. JACKSON, Chancellor.
APPEAL from chancery court of Leflore county HON. R. E. JACSON, Chancellor.
Action by the Fighting Bayou Drainage District, etc., against Leflore County and others. From an adverse decree, the plaintiff appeals. Decree reversed, and decree rendered for plaintiff.
Reversed, and decree here.
H. C. Mounger, of Greenwood, for appellant.
This is an appeal from the chancery court of Leflore County, Mississippi. It involves the application of Section 5085, Hemingway's Code of 1927. Chapter 267, Laws 1924, provides that Sixteenth Section land shall be liable to assessment for drainage taxes. Code of 1930 provides for the same. Under Section 5085, Code of 1927, the lessee was to pay the drainage assessments. Under Section 767, Code of 1930, it is provided that the drainage assessments shall be paid in the discretion of the board of supervisors either by the lessee, or by the board of supervisors, but the liability for such drainage taxes shall be fixed by the lease contract when said lands are leased. In this case the lands are included in the Fighting Bayou Drainage District and were leased. The rent was collected and the amount of drainage taxes were collected during the years 1928, 1929, 1.930 and paid to the drainage district. This was under the lease governed by Code of 1927. In the subsequent contracts the drainage assessments were not provided for in the contracts by the board of supervisors, enough money collected from the lessee to pay all said assessments, but none of it has been paid to the drainage district.
Where one has in his hands money which in equity and in good conscience belongs and ought to be paid to another, an action for the money had and received will lie for the recovery thereof.
15 Am. & Eng. Encyc. of Law, page 1096; Patton v. Pinkston, 38 So. 500; Shields v. Thomas, 71 Miss. 260.
This land was leased to G. W. Manning for five years beginning January 1, 1927, for thirty-six hundred dollars for the. year 1927; thirty-eight hundred dollars for 1928; four thousand dollars for each of the years, 1929, 1930, 1931. This lease contained a provision that all taxes paid by Manning the lessee in any year of this lease on said lands shall be deducted from the rent note of that year. Drainage taxes are included in the word taxes. This lease recites that it was done with the advice and consent of the board of supervisors to be obtained by an order entered upon the minutes of the board. It was executed by the Superintendent of Education and Manning.
The board of supervisors recognized the validity of these rent contracts, collected the money under them, recognized that the drainage assessments should be paid, recited that they had the money to pay them up to that time, but never paid a dollar of them.
Under Section 5085, Code of 1927, which governed the first years the lessee was to pay the drainage assessments. It was a part of his rent contract. It was an obligation imposed by law. The board recognized this and provided for it, by incorporating the provisions that the lessee was to be allowed credit for all taxes paid. In the leases under Code of 1930 the liability should have been fixed by the board of supervisors in the lease contracts. Failing to do this the board of supervisors assumed the payment. There is no escape from this conclusion. The fact that the board of supervisors may not have the money on hand now, or that they may have used it for some other legitimate purpose, does not exonerate them.
Nelson E. Taylor, of Greenwood, for appellant.
Appellant shows that under the statute it becomes a beneficiary under any leasehold or rental agreement entered into between appellee Leflore County and a third party, (here appellee G. W. Manning, lessee) by which Sixteenth Section School lands lying within the boundaries of both Leflore County and Fighting Bayou Drainage District; Chapter 167 of the Laws of 1924, under which the five year lease contract entered into between L. S. Rogers, Superintendent of Education for Leflore County, and G. W. Manning on December 22, 1926, becomes a part of that contract.
It is respectfully submitted that the only reasonable construction that can be placed upon the lease agreement is the one made by the parties themselves in first, the written contract, second, the statute under which it was made, and third, the order on the minute book of the board of supervisors, and such a construction is the reasonable construction, because it then fixes a, definite charge for the use of the hind to be paid by the lessee, whereas any other construction, would leave the liability to be paid a vague and indefinite thing, that no lessee of ordinary intelligence could assume.
Appellant respectfully shows, therefore, that the drainage taxes were paid by lessee Manning for each of the years 1927, 1928, 1929, 1930 and 1931, but that instead of paying the drainage taxes to the tax collector, he paid them to the appellee Leflore County in his payment of the gross amounts called for in his rental agreement, and that appellee Leflore County, having received said drainage taxes, is now due to pay the same over to appellant, as charged in its amended bill of complaint.
As to the lease contracts for the years 1932 and 1933, the record does not show any ratification by the board of supervisors by spreading the rental contracts upon their minutes. The record does show that the lease contracts for each of the years 1932 and 1933 were simple promissory notes executed by said Manning lessee, and given in payment for his rent for each of said years. The record shows that there was no liability fixed in the rent contract as to whether Manning should pay the drainage taxes or whether lessor Leflore County should pay them, although the law as to the leasing and letting of Sixteenth Section school lands had been changed by imposing a duty upon the board of supervisors and the superintendent of education to fix the liability for the drainage taxes in the lease agreement, as provided in Section 6767 of the Mississippi Code of 1930.
In the leasing of said lands for the years 1932, 1933 and 1934, this provision of the statute was completely ignored and no liability was fixed against the lessee for the payment of the drainage taxes, neither did the lessor assume the liability and neither party has paid the drainage taxes for either of said years, but the lessee Manning has paid his rents for each of said years, has had the benefit and use of the lands for each of the years, and the lessor Leflore County has benefited by the collection of the rents for each of said years, while the appellant Fighting Bayou Drainage District of Leflore and Sunflower Counties, Mississippi, remain without payment of the drainage taxes for each of said years, and the said Sixteenth Section school lands, although greatly benefited by improvements of tim Drainage District, resulting from...
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