Franklin v. Ellis

Decision Date06 November 1922
Docket Number22880
Citation130 Miss. 164,93 So. 738
CourtMississippi Supreme Court
PartiesFRANKLIN et al. v. ELLIS et al

1. LEVEES AND FLOOD CONTROL. Act regulating manner of letting of contracts not unreasonable restriction of power given board by Constitution.

Chapter 169, Laws 1922, is constitutional and valid as a reasonable regulation of the administration of the affairs and functioning of the board of levee commissioners, and does not unreasonably restrict or impair the efficient exercise of the power given by section 232, Constitution of 1890.

2. LEVEES AND FLOOD CONTROL. Act regulating number, character and salaries of employees of levee board a reasonable regulation.

Chapter 170, Laws 1922, is valid as a reasonable regulation of the administration of the affairs of the board of levee commissioners in all respects except that it impairs and is ineffective as to contracts made by the board with employees before passage of act.

3. CONSTITUTIONAL LAW. Contracts between levee board and employees, cannot be annulled by legislature.

Duly authorized contracts made by a levee board with employees employed to perform certain and specific private duties could not be annulled by the legislature, in view of the provisions of the state and United States Constitutions forbidding impairment of obligation of contracts, and are valid and binding, notwithstanding Laws 1922, chapter 170.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Coahoma county, HON. G. E. WILLIAMS, Chancellor.

Suit by M. H. Ellis and others against L. C. Franklin and others. From the decree, defendants appeal. Affirmed in part, and reversed in part, and judgment entered.

Decree reversed.

Maynard, Fitzgerald & Venable, for appellants and cross-appellees.

Defendants in the court below attacked both of the acts of the legislature as being unconstitutional. The ground of attack upon chapter 169 with reference to contracting for work and material is that this law is an impairment and invasion and negation of the powers fixed by the constitution in the board of levee commissioners of the Yazoo-Mississippi Delta levee district, that it is unreasonable to such an extent that its observance would frustrate the whole purpose and object for which the levee board was created. The same attack is made upon house bill No. 752, chapter 170, of the Session Laws, which seeks to prescribe what officers and employees the levee board shall have and which fixes the maximum salaries to be paid.

In respect to this last law, it is also urged that it cannot have validity in this case in that it impairs the obligation of the contracts entered into by the persons mentioned in the bill with the levee board prior to its enactment for certain services to be rendered at a stipulated salary. We appreciate the fact that if these laws fall within the domain of legislative action, that their wisdom or unwisdom is not subject to review by the courts. But we say that as against unwise legislation of this character, we have the protection of the constitution and our contention is that the passage of laws such as the ones under review is beyond the jurisdiction of action by the legislature.

Chapter 169 provides that all contracts for work or material in connection with the location, construction, alteration, maintenance or repair of the levees of the Yazoo Mississippi Delta levee district should be let by public bids after advertisement in a newspaper for two and three weeks respectively, "provided, however, 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 board of commissioners shall find 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 a 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."

It will be noticed that when an emergency arises caused by high water or caving banks that the engineer shall certify its cause and probable effects to the levee board. This of course entails an inspection by the engineer. The board of levee commissioners must make a personal investigation and inspection and find that said emergency actually exists, and then the board must meet in formal meeting as a board and the findings of the board, together with the certificate of the chief engineer shall be placed of record. The members of the board, as the court will take judicial knowledge of, live in the various counties making up the district, and it is apparent that several meetings would be necessary to follow the procedure laid down by the legislature as being necessary before material can be purchased or contract for labor let in excess of five hundred dollars.

In chapter 170, the legislature undertook to say just what employees the levee board should have and to fix the limit of salaries which could be paid them. The attack upon these laws being that they are invasions and negations of powers granted to the levee board by the constitution, it becomes necessary to determine what are the effects of the constitutional provisions with reference to the levee board, its powers and duties.

The only purpose of putting a provision in a constitution is to remove the subject-matter dealt with from the domain of legislative action. This follows from the consideration that in the absence of a constitution or constitutional limitation, all governmental power is resident in the people and the legislature being the representatives of the people and agents through whom the people act, it follows that all power in the absence of a constitution or constitutional limitation is resident in the legislature.

As said by Justice JOHNSON in Livingston v. Moore (7 Peters 469): "The power existing in every body politic is an absolute despotism. In constituting a government, the body politic distributes that power as it pleases and in the quantity it pleases and imposes what checks it pleases upon its public functionaries."

It has been held that where a legislative power is undefined, it includes judicial and executive attributes which is but another way of stating the same thing. Cooper v. Tellfair, 4 Dall. 14.

Since all governmental power is resident in the legislature in the absence of a constitution, it would appear that the necessary effect of the adoption of a constitution by a people and the delegation of governmental authority and power to functionaries other than the legislature would be to deprive the legislature of the powers committed to others. It would therefore seem to follow that the only purpose for delegating by a constitution governmental power to some functionary other than the legislature would be to deprive the legislature of it. If this be a sound rule of constitutional construction, it would follow that the only purpose for putting the provisions relative to the levee board in the constitution of the state was to remove the subject-matters intended to be governed from the domain of legislative action. In other words, these provisions were intended and had the effect of placing the powers conferred upon the levee board beyond the domain of legislative annulment, interference or impairment. It would seem that this result follows from the principles stated and also from the rule that, in the absence of language clearly indicating a contrary intention, the conferring of power by the constitution on one governmental functionary is deemed to exclude the exercise of it by another.

The apportionment of governmental power among different functionaries is the outstanding characteristic and peculiar genius of American constitutional government, the evident purpose being to render tyranny impossible and to preserve the liberties of the citizen from official abuse by providing a system of checks and balances. The apportionment by the people of governmental power upon constitutional functionaries imposes upon each the duty of exercising its own powers for itself. And for the same reason that the powers cannot be delegated, they cannot be usurped. Reelfoot Lake Levee District v. Dawson, 97 Tenn. 151, 34 L. R. A., 725; Kilbourn v. Thompson, 103 U.S. 168.

As far as this phase of the question at bar is concerned, it would appear that the question resolves itself into the inquiry as to what powers were given the levee board and whether the laws in question amount to a deprivation, annulment or unwarranted interference by the legislature. In passing upon this question, it would seem to be proper to take into consideration not only the language of the constitution but also the purposes and objects sought to be attained; and it would appear that the constitutional provisions should receive that construction consistent with their terms which will promote these objects since their accomplishment was the reason for the adoption of the constitutional provisions. Rhode Island v. Mass., 12 Peters 657; Jarrolt v. Moberly, 103 U.S. 580; Brigg v. Pennsylvania, 16 Peters 539; Legal Tender cases, 12 Wall. 457; Adams v. Y. & M. V. R. R. Co., 77 Miss. 194.

It seems to be also true that the court will look to the history of the times as an aid to interpretation. Slaughter-house cases, 16 Wall. 36; Strauder v. West Va., 100 U.S. 303; Maxwell v. Dow, 176 U.S. 581.

The court will also test the...

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