Forsdick v. Board of Mississippi Levee Commissioners

• Decision Date: 15 May 1899
• Citation: Forsdick v. Board of Mississippi Levee Commissioners, 26 So. 637, 76 Miss. 859 (Miss. 1899)
• Court: Mississippi Supreme Court
• Parties: HENRY J. FORSDICK v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

26 So. 637

76 Miss. 859

HENRY J. FORSDICK v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

Supreme Court of Mississippi

May 15, 1899

March 1899

FROM the chancery court of Bolivar county, HON. A. H. LONGINO chancellor.

The board of levee commissioners, appellee, filed its bill against Forsdick, appellant, to cancel his title to certain lands described in the bill as a cloud upon the title of complainant, or in the alternate to fix a charge upon the land for certain taxes which complainant claims to be due and unpaid thereon, which taxes, the bill charges, were originally due to the board of levee commissioners for the counties of Bolivar, Washington, and Issaquena, a corporation created under the act of November 27, 1865.[This board is sometimes popularly called the "ten-cent board, " because by the act creating it a tax of ten cents per acre was levied on land.]The complainant charges that it is the successor in law of the board of levee commissioners for the counties of Bolivar, Washington, and Issaquena, and as such is the owner of the lands described in the bill, or has a right to fix a charge thereon for the unpaid taxes due said original board; that the lands were legally sold under provision of the act of November 27, 1865, and struck off to the old board; that the period of redemption expired after the sale, and that the lands were not redeemed, and the title of the board became absolute; that after the lands had thus been sold to the board, and after the passage of the act of February 21, 1867, by the provisions of which the collection of state and county taxes on lands held by the said board were suspended, the lands were illegally, at divers times sold by the tax collector of Bolivar county, and purchased by the state; and that afterwards, in the year 1888, the state conveyed the lands to one Williams, under whom the defendant deraigns title.The complainant claims in its bill that under the act of 1865 an irrepealable contract was made with the creditors of the original board to the effect that the taxes imposed by the act should constitute a special fund and trust for the payment of the debts and liabilities of the corporation created by the act, and that said taxes should not be subject to repeal, alteration, or suspension until all of the bonds, debts, and liabilities of the said board should be paid and discharged.It is further averred that the original board of levee commissioners incurred large debts and issued bonds in large amounts, for the purposes of doing the work specified in the act, and that such practice has been continued under said act and the several amendments thereto by the original board and by complainant, which under the statutes, is the legal successor of the said former board, charged with the burden of its debts and duties, and which is now in fact the same corporation, and is now the owner of all its assets; that such bonded or floating indebtedness has never been paid, except through the process of, to use the language of the bill, "borrowing from Peter to pay Paul, " and that the same now, in round numbers, amounts to about $ 1, 150, 000; that all of the revenues of the former board and its successors have been expended in the payment of interest, and salaries of officials and employes, and in the repairing of old levees, building new levees, and for lands, damages, etc., in condemnation proceedings, and in attempting to avert overflows when threatened.It is charged that none of the old indebtedness of said former board has ever been actually paid, but that the same is now existing and outstanding, but the same has been novated, and new bonds issued from time to time, in place of the old and expiring ones.The bill claims that, by the terms of the act of April 11, 1876, the legislature attempted to divest said board of its title to all lands theretofore acquired by it as aforesaid, and provided that, as to all such lands as should remain unsold on or before the first of January, 1878, the title should vest in the state.This act, the bill asserts, is unconstitutional, in that it impaired the obligation of the contract entered into between the state on the one part and the levee board and its creditors on the other.

To the billthe defendant interposed a demurrer, setting up, among other grounds, that complainant is not in law the successor of the board created by the act of 1865; that the bill does not show any outstanding liabilities for which the land or fund sought to be recovered in this case could be applied; that, if any such debts exist, they are barred by the statute of limitation of six and ten years; that, if complainant ever discharged any of the debts of the original board, it did so as a mere volunteer, and cannot be subrogated to the rights of the original board; that, if there are outstanding liabilities to which the land or the taxes due thereon could be subjected, it cannot be done at the instance of complainant, but only by the existing creditors of the old board.From a decree overruling the demurrer, defendant appeals to the supreme court.

Affirmed.Affirmed.

St. John Waddell, for appellant.

The proposition of complainant is that it is the successor in law of the old board.To a certain extent this is true, but whether any title in the land owned by the old board was given to the present complainant, must, in the nature of things, be determined by the construction of the act, for the purpose of finding what the legislature intended.It will not do to say that, because the legislature had no power to divest the title of the old board, therefore, it was necessary that it should devolve title upon a new corporation.The title of the old board had been, or attempted to be, divested by the act of April 11, 1876.This divestiture, whether legal or illegal, was not withdrawn nor waived by the act of January 27, 1877.Whether the legislature might legally, as against the creditors of the old board, vest its title in the state, is one question.Whether it intended to invest that title in the new board, is a totally different one; and that it did not, I submit, is too clear for contention.And so it is submitted that the present complainant has no standing in court, as the successor of the old board, to challenge the validity of the act of 1876.

The act limited the issue of bonds to one million dollars, and devoted the money raised by taxation to the payment of the bonds.According to the averments of the bill, this million of dollars, and more, were issued, and the money intended to be applied to the payment of the bonds was appropriated to other purposes.How much money was derived from taxes and applied to other purposes?Was there a million dollars, or more, or less?The bill does not aver, but it does distinctly state that, whatever the amount of the fund was, it was applied by the present board, and its predecessors, illegally.It was not paid out on the bonds, as the law directed that it should be, and the very party guilty of this violation of law comes into a court of conscience and asks its aid to collect other revenues to apply to the payment of the old bonds, which, under the law, ought to have been paid out of the revenues which have been misapplied.

All of the outstanding bonds issued under the act of 1865 are long since barred by the statute of limitation of six and ten years.It will be borne in mind that the act of 1865 expired by its own limitation, so far as the tax thereby limited is involved, on the first day of March, 1879.That the title of the lands was vested in the State of Mississippi by the act of April 11, 1876.The last of the bonds which could have been issued must have borne date prior to March, 1879, nearly twenty years before the bill in this cause was filed....