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

Decision Date08 February 1904
Citation35 So. 943,83 Miss. 534
CourtMississippi Supreme Court

FROM the chancery court of, second district, Coahoma county. HON CAREY C. MOODY, Chancellor.

Ham and others, appellants and cross-appellees, were complainants in the court below; the board of levee commissioners appellee and cross-appellant, was defendant there. From a decree partly and largely in defendant's favor, the complainants appealed to the supreme court, and the defendant prosecuted a cross-appeal. The facts are fully stated in the opinion of the court.

Reversed cross-appeal.

Fitzgerald & Maynard and D. A. Scott, for appellants.

The fundamental law of our state, sec. 17 of the constitution of 1890, provides that private property shall not be taken or damages for public use without compensation first made, and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question and as such, determined without regard to the legislative assertion that the use is public. There is no contention that compensation has been given or offered to complainants, and no steps have been taken to condemn the land. Our courts have time and again held that an injunction would lie in such cases. We cite only a few authorities, as it is not necessary to cite more. New Orleans, etc., R. Co. v. Frederic, 46 Miss. 1; Cameron v. Washington County, 47 Miss. 264.

This is not a case of public emergency, which would justify the taking of private property for a public use without compensation being first made, upon the principle of imperative necessity for the public protection. As said by our supreme court in Penrice v. Wallis, 37 Miss. 172, "the necessity must be apparently present, and the apprehended danger must be so imminent and impending as not to admit of the delay incident to legal proceedings to condemn the property."

Under a proper exercise of the right of eminent domain, compensation must precede the taking, or be tendered before the taking, and the condemnation proceedings must conform strictly with the law, if this be not done, the corporation making entry is a trespasser. Canton, etc., R. Co. v. French, 68 Miss. 22. Two conditions are imposed as limitations on the right of eminent domain incident to every form of sovereignty: (1) The decision in some form, that private property is needed for the particular public use, and, (2) the assessment and payment or tender of compensation before it shall thus be appropriated. Pearson v. Johnson,, 54 Miss. 263.

But there is a graver question than that of compensation involved in this suit. It is the question touching the power of the board under its charter to build the projected new line of levees at all. It is not a mere question of discretion in the board to determine when the necessity has arisen and whether or not it is a public use. The legislature gave the board certain powers and certain discretion within those powers to do particular things, but this discretion, even when the board acts within its powers, is not final, but is at last a judicial question. Article 17, Constitution of Mississippi 1890; Stearns v. City of Barre, 87 Am. St. Rep., 721; Chicago, etc., Ry. Co. v. Morehouse, 88 Am. St. Rep., 930, 7 Am. & Eng. Enc. Pl. & Pr., 473, 535, and note 8.

The necessity must be proven when called in question. Power v. Kitching, 88 Am. St. Rep., 718, 18 A. Dig., 911 and 1556; Lynch v. Forbes, 42 Am. St. Rep., 406.

The affidavits for the complainants clearly show an attempted abuse of this discretion by the board, thereby invading and destroying the property of the complainants. A corporation never has the right to arbitrarily abuse the discretion confided to it by the law, or by its charter, and the chancery court will control it and correct such abuse. New Orleans, etc., R. Co. v. Frederic, 46 Miss. 1; State v. Board of Directors, 56 Am. St. Rep., 503. Under the charter of the defendant it is required to protect all property in this district from loss and destruction. Then the primary object of the law was to protect all property in the district, including that of the complainants, if possible. No question of the expense, of economy, can be given as a reason for throwing their property outside of this protection.

We come now to the discussion of the question of the powers granted by the legislature under the defendant's charter. Section 4 names these powers, to wit: (1) To build, rebuild, strengthen, elevate and maintain the levee along the Mississippi river; (2) to determine the base, height, slope and width of the levee; (3) they may abandon any portion of the old levee that they may regard as improperly built or unsafe; (4) they may repair the old levee or build a new levee on such grounds as they select, provided the board, in exercising the power and authority conferred on them by the provisions of this act may, in their discretion, adopt, strengthen, repair, elevate and rebuild the present line of levee as it now exists whenever and whereever it is practicable for them to do so.

All this they have long since done. They, in their discretion, located their lines of levee, adopting in many instances the old levee, and in some abandoning and building new levees.

These lines of levee were built many years ago by the defendant, and are in fine condition, well sodded with Bermuda grass and built much higher and stronger than any other levees.

In no part of this charter can there be found any express grant of any powers to reselect or relocate these lines of levee after the most advantageous route has been once adopted.

The same principles governing railroad companies as to their rights and powers to relocate and abandon established lines applies to the relocation of levee and an abandonment of its established lines. Complainants have purchased their lands and improved the same with reference to the permanency of these lines of levees, and they have acquired property rights in the same. The only implied power the defendant can have is the right to enlarge the present levees, or to abandon and relocate the same when imperatively required. No consideration of a better, shorter, or more convenient route, or of economy in the expenditure of its money and of a more advantageous location in a new line is sufficient to authorize such change in location. There must be some imperious necessity for the relocation. These principles were so declared in almost the exact language we have used in this brief in Lusby v. R. B. Co., 73 Miss. 368, where it was held that the railroad company had exhausted its powers under the charter to relocate.

The discretion of the board, even in cases where unquestioned power is given to build levees at will, is not final nor so sacred as to be revised by a court of chancery. It was to curb this discretion so lavishly given to corporations by our legislature that caused those distinguished men who framed our fundamental laws to insert sec. 17 of our constitution.

J. T. Lowe, for appellee.

Injunctions will not lie to control or direct official judgments or discretion. Koehler v. Barren (C. C.), 25 F. 161.

"Where the public authorities are not acting mala fides the exercise of their discretion will not be reviewed in a court of equity on the allegation of a telegraph company that they are attempting to compel it to place its wires in insufficient and defective subways." Western Union Tel. Co. v. City of New York (C. C.), 38 F. 552, and 3 L. R. A., 449.

"When no excess of authority or actual corruption is shown, injunction will not be granted to restrain the commissioners of excise from granting licenses in the exercise of the discretion given to them by statute." Leigh v. Westervelt, 9 N.Y.S. Ct., 618.

"Injunction will not be granted to restrain or supervise the exercise of the discretion conferred by law upon officers in a discharge of their duties." Burwell v. Vance, 93 N.C. 73.

"The performance of a public duty, such, for instance, as the construction of a county fence, will not be enjoined, unless it clearly appears to be without legal warrant." Busbee v. Weight County Commissioners, 83 N.C. 143.

"Equity will not interfere by injunction with the different boards of municipality in reference to the price to be charged for gas, unless there has been a discrimination, and that discrimination compels the party to pay more than others similarly situated." Bellaire Goulet Co. v. Findlay, 5 Ohio Cir. Ct., 418.

"If municipal officers transcend their powers or neglect their duty, they are amenable to control by the court; but to warrant enjoining the exercise of power and discretion specially delegated by the legislature, the case should be clear from doubt." Ford v. Borough of West Pittson, 6 Luz. Reg., 54.

"To warrant interference by injunction with the exercise of process and discretion conferred by the legislature, the case should be clear beyond doubt." Rittenhouse v. Creasy, 12 Luz. Leg. Reg., 14.

"Equity will decline to interfere with a public officer in the execution of his duty when there is simply a disputed question of fact, and the plaintiff, if injured, has his remedy at law against those whom he claims are transcending their authority." Hay v. Easterbrook, 15 Wkly. Notes Cas., 222.

"Where the city of Philadelphia, by ordinance, appointed certain trustees to take charge of and have complete management of the gas works of the city, equity would not interfere by injunction to control such trustees in the exercise of their discretion in the method or process adopted by them in the administration of their trust, in the absence of fraud or mala fides." Chandler v. Gardner, 2 Pa....

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