Moss Point Lumber Co. v. Harrison County

• Citation: 89 Miss. 448,42 So. 290
• Court: United States State Supreme Court of Mississippi
• Decision Date: 07 May 1906
• Parties: MOSS POINT LUMBER COMPANY v. HARRISON COUNTY

42 So. 290

89 Miss. 448

MOSS POINT LUMBER COMPANY v. HARRISON COUNTY

Supreme Court of Mississippi

May 7, 1906

November 1906

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

Harrison county, the appellee, was complainant in the court below; the lumber company, the appellant, was defendant there.

From a decree overruling a demurrer to the bill of complainant the defendant appealed to the supreme court. The facts are fully stated in the several opinions delivered in the case.

The case was twice decided; at first the decree appealed from was reversed and remanded and the suit dismissed; upon suggestion of error a rehearing was granted--Justice TRULY leaving the bench and being succeeded by Justice MAYES after the first decision and before the second hearing. The second decision affirmed the decree, from which the appeal was taken.

Reversed and remanded.

Ford &amp White, and Green & Green, for appellant.

While the lease in controversy was made under the code of 1880, it is necessary to consider and define the status of sixteen sections, from the beginning.

1. The United States acquired title to Mississippi territory by the cession from the state of Georgia of April 24, 1802, Hutch. Code, 1848, pp. 55, 56, whereby: "The state of Georgia cedes to the United States all the right, title and claim which the said state has to the jurisdiction and soil of the land situated, " etc.

Then by the first clause of said cession it is provided that out of the proceeds of the sales of the lands ceded to the United States, Georgia was to be first paid $ 1, 250, 000; and third, "that all lands ceded by the agreement to the United States, after satisfying the above-mentioned payments of $ 1, 250, 000 to the state of Georgia, and the grants recognized by the preceding conditions, be considered as a common fund of the United States, Georgia included, " etc.

By the act of congress, May 10, 1800, 2 U.S. Stat., p. 69, supplemental to the act authorizing the establishment of Mississippi territory, section 7, it is provided: "That nothing in this act shall in any respect impair the right of the state of Georgia to the jurisdiction, or of the said state, or any person or persons to the soil of said territory, but the rights and claims of the said state, and all persons interested, are hereby declared to be affirmed and available as if this act had never been made;" and by section 10 the commissioners appointed were authorized to compromise, and to receive on behalf of the United States a cession of any lands therein mentioned, or of the jurisdiction thereof on such terms as to them shall appear reasonable."

It thus appears that under this act Georgia had the title to the lands in 1800, and provision was then made for acquiring Georgia's title by the United States, and this was done by the Georgia cession of 1802.

Whether the United States took title, as trustee, under the Georgia cession, as held in Jones v. Madison County, 72 Miss. 777 (s.c., 18 So. 87), supra, or not, this essential proposition is conceded by both lines of contention; viz: That the sixteenth sections were a trust for school purposes with the inhabitants of the township as cestui que trust.

The decisions of our court prior to Jones v. Madison County, had uniformly held that the title to these lands was in the United States, with power in the state, within the limits of the trust, to make regulations in regard thereto. Moreton v Grenada, 8 Smed. & M., 773 (1847), per Sharkey; Phillips v. Burrus, 13 Smed. & M., 36 (1849), per Sharkey; Hester v. Crisler, 36 Miss. 681 (1859), per Harris; Windham v. Chisholm, 35 Miss. 531 (1858), per Handy; Rabb v. Supervisors, 62 Miss. 594 (1894), per Arnold; Chamberlain, v. Lawrence Co., 71 Miss. 985 (s.c., 15 So. 40) (1894), per Cooper; and while these cases, we insist, set forth the correct rule, they were overruled by Jones v. Madison County, supra. The presumption would be that this court will follow its own last decision and leave the final decision of these matters to the federal courts, it being a federal question.

The rules announced in Jones v. Madison County favor our contention here, for it is there expressly decided that the lands were a trust for the inhabitants of the township. It matters not who the trustee is, the rights of the cestui que trust cannot be legislatively or otherwise impaired.

The court, with all deference, in Jones v. Madison County, 72 Miss. 777 (s.c., 18 So. 87), fell into error by relying upon Gaines v. Nicholson, 9th How., U.S. and upon the assumption that the state of Georgia, and not the United States, was donor, and in following Long v. Brown, 4 Ala. and other cases, contrary to the express decision of Trustee v. State, 14 How., U.S. supra.

The clear distinction between Long v. Brown, 4 Ala., as recited in Jones v. Madison County, p. 799-800, and the status of these titles in Mississippi is that the act of congress admitting Alabama as a state declared that sixteenth sections shall be granted to the inhabitants of such township for the use of schools, while the act of congress admitting Mississippi contains no such provision. Hutch. Code, p. 59.

It is difficult to understand that the supreme judges of this state, who were familiar with the early history of the state, and of the reasons for the act of 1833, Hutch. Code, 213, 214, should have, from the earliest times, and contemporaneously with the happening of the events, interpreted these acts of congress as being the source of the title to the sixteenth sections, and in holding that the legal title was and continued to be in the United States, if that had not been the true interpretation. This was the interpretation by congress in the passage of the act of congress of 1852, code of 1857, p. 696. This was the accepted interpretation of these titles by the supreme court of the United States, by congress, by the legislature, and by the supreme court of this state for a great number of years, and it was for the court in Jones v. Madison County to erroneously discover, for the first time, that this interpretation was a mistake. Judge COOPER, who delivered the opinion in the case of Jones v. Madison County, had concurred in the opinion of Bolivar County v. Coleman, 71 Miss. 832, in which it was held that if the record did not affirmatively show the consent of the heads of families, the lease was void, and this was overruled by Jones v. Madison County. Neither court nor counsel cited or referred to Davany v. Koon, 45 Miss. 71, on this point, which disapproved Phillips v. Doe, 13 Smed. & M., 35, and approved Wray v. Doe, 10 Smed. & M., 453, as applicable to leases under the act of 1833 and the act of 1841, and applying the maxim Omnia rite esse acta presumuntur.

There is no reference in "An ordinance for the government of the Territory of the United States northwest of the River Ohio, " of July 13, 1787 (Laws, etc., relating to Public Lands, p. 256), to the sixteenth sections. The only parts of said ordinance pertinent to the origin of Mississippi is transcribed into Hutchinson's Code, p. 53.

Under "An ordinance for ascertaining the mode of disposing of lands in the Western Territory, " May 1785 (Laws, etc., relating to Public Lands), two years before the ordinance for the government of the northwest territory, it was provided: That the territory ceded by individual states to the United States which had been purchased of the Indian inhabitants shall be disposed of as follows: Surveys are to be made, and "There shall be reserved for the United States out of every township, the four lots, being numbered 8, 11, 26, 29, and out of every fractional part of a township so many lots of the same number as shall be found therein for further sale. There shall be reserved the lot No. 16 of every township for the maintenance of public schools within said township, " etc.

Ordinance 23 (Laws, etc., relating to Public Lands, p. 362), styled "Powers of the board of treasury to contract for the sale of the western territory, " of July 13, 1787, authorizes the board of treasury to contract for the sale of certain tracts of land to be surveyed and contents ascertained by the United States geographer, the purchaser within seven years to lay off the tract into townships and fractions according to the land ordinance of May 20, 1785; "the lot No. 16 in each township, or fractional part of township, to be given perpetually for the purposes contained in said ordinance." And this purpose was for "the maintenance of public schools within said township."

The title to the land composing the state of Mississippi was, in 1802, under this Georgia cession, vested in the United States.

The United States then proceeded to dispose of the lands thus vested in it, and by the act of 1803, Hutch. Code, 1848, p. 563, it established a commission to settle the British and Spanish titles, and to sell the lands to pay Georgia, and generally to dispose of said lands by sale; and congress, by section 12 of that act, Hutch. Code, 568, for the first time, and long prior to the survey of the lands, reserved the sixteenth sections in each township from sale, providing: "That all the lands aforesaid, not otherwise disposed of, excepted by virtue of preceding sections of this act, shall, with the exception of the section number sixteen, which shall be reserved in each township for the support of schools within the same . . . be offered for sale, " etc.

Thus the trust is created by congress not in or for the state, but the title to the land then being in the United States was reserved from sale "for the support of schools within the same" (township).

Congress proceeded, after creating this trust, to make it effective by the creation of trustees; and so, prior...