Pearl Realty Co. v. State Highway Commission

• Citation: 170 Miss. 103,154 So. 292
• Decision Date: 23 April 1934
• Docket Number: 30918
• Court: United States State Supreme Court of Mississippi
• Parties: PEARL REALTY CO. v. STATE HIGHWAY COMMISSION

154 So. 292

170 Miss. 103

PEARL REALTY CO. v. STATE HIGHWAY COMMISSION

No. 30918

Supreme Court of Mississippi

April 23, 1934

Division A

Suggestion Of Error Overruled June 5, 1934.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by the State Highway Commission against the Pearl Realty Company wherein defendant filed a crossbill. From an adverse decree defendant appeals. Affirmed.

Affirmed.

Green, Green & Jackson, of Jackson, for appellant.

It was improper to have issued mandatory injunction without bond and notice.

Griffith's Chancery Practice, sec. 444; Pearman v. Wiggins, 103 Miss. 4, 60 So. 1; Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 So. 113; Quitman County v. Miller, 117 So. 263, 150 Miss. 841; 20 C. J. 9; Miller v. Phipps, 137 So. 182.

The state highway department is a separate corporation, not a state officer.

Section 250, Constitution; Miller v. Batson, 134 So. 567, 160 Miss. 644.

It acted in a proprietary capacity and not in a governmental capacity.

Section 5006, Code of 1930; Section 419, Code of 1930.

When the state, through a private corporation, or a subdivision thereof, is acting purely in a proprietary capacity, it has been held time and again that it is subject to the law of estoppel just as any private litigant would be.

Hinds County v. Railroad Co., 85 Miss. 631, 76 Miss. 714, 25 So. 667; 10 R. C. L. 704; 2 Lawrence Equity Jurisprudence, 1184.

This action against commission is not a suit against the state.

Section 5006, Code of 1930.

The individual signatures of the members of the capitol commission on the lease constitute sufficient approval thereof to validate the lease.

Hinds County v. Railroad Co., 85 Miss. 629; Section 16, chapter 47, Laws of 1930; Section 5006, Code 1930; 2 McQuillan Mun. Corp. (2 Ed.) 611; Corinth v. Sharp, 65 So. 888; 2 Dillon on Municipal Corporations (5 Ed.), sec. 603; Carter v. Supervisors, 95 So. 306; Tallahatchie v. Drainage District, 114 So. 264; Greenwood v. Jones, 91 Miss. 729; 43 C. J. 569; 2 Dillon Mun. Corp. (5 Ed.) 949; Martha v. Kingfisher, 18 L. R. A. (N. S.) 1238; Green v. City of Demopolis, 101 So. 529; Ex parte Bachman, 201. Pac. 537; Baker v. Combs, 239 S.W. 57; Elliott v. Council of Newark, 68 A. 400; Hardwich v. City of Independence, 114 N.W. 14; Landes v. State, 67 N.E. 189.

The chancellor erred in denying appellant the relief sought because, by its actions, by the allegations of its pleadings, by the affirmative injunctive relief obtained under the terms of the lease, the commission is estopped from questioning the validity of any part of the lease, even if initially invalid, which is not the case.

Usher v. Moss, 50 Miss. 211; State v. Industrial Com., 242 N.W. 321; Calihan v. Yellow Cab Co., 13 P.2d 931; 25 R. C. L. 392; Eau Claire Dells Imp. Co. v. Eau Claire, 179 N.W. 2; Odom v. New York Life, 56. So. 379; 10 R. C. L. 704; Bigelow on Estoppel (2 Ed.) 371; Salmon v. Rochester, etc., Co., 197 N.Y.S. 769; Quarles v. City of. Apelton, 299 F. 515; Davis v. Mayor, etc., City of New York, 93 N.Y. 252; Ettor v. City of Tacoma, 137 P. 823; State v. Horr, 205 N.W. 444; McQuillan Municipal Corporations, secs. 1357 and 1358, page 956; Scott County v. Advance-Rumley Thresher Co., 288 F. 740, 750; Loomis v. Fifth School District; Demars v. Same, 145 A. 571; State v. Mayor, 127 So. 704, 710, 157 Miss. 836.

If the court accepts as valid our contention that the state highway commission does not represent the state in a sovereign capacity, but purely in a private or proprietary capacity, then it follows that the state highway commission may be bound just as an ordinary corporation or private individual. This being the case, by their conduct and their pleading the lease contract, they will be deemed to have ratified the whole of the lease and will be estopped do now deny it.

Section 4992, Code of 1930, par. (m).

If the court disagrees as to our contention that the state highway commission can ratify or be estopped just as an ordinary corporation, and holds that the state highway commission represents the state in a sovereign capacity, even then we contend that the terms of section 4992 are merely directory. The failure to place the municipal proceedings on the minutes of the council does not invalidate an ordinance as such is directory only.

Martha v. Kingfisher, 18 L. R. A. (N. S.) 1238; Green v. City of Demopolis, 101 So. 529; Ex parte Bachman, 201 P. 537; Baker v. Combs, 239 S.W. 57; Elliott v. Council of Newark, 68 A. 400; Hardwich v. City of Independence, 114 N.W. 14; Landes v. State, 67 N.E. 189.

Irregularities in the making of a contract within the corporate powers which are directory merely will not necessarily invalidate contract.

3 McQuillan on Municipal Corporation, sec. 1283; Commercial State Bank v. School District, 196 N.W. 373; Kinnear, Inc., v. City of Lincoln Park, 244 N.W. 465; Saginaw v. Consumers' Power Co. 213 Mich. 479.

There was no mandatory requirement that this contract be let by competitive bidding. This creates a strong presumption that with reference to paragraph (m) of section 5006, section 4992 was merely directory.

E. R. Holmes, Jr., Assistant Attorney-General, and Watkins & Eager, of Jackson, for appellee.

The mandatory injunction was properly issued as commission is agency of state acting in governmental capacity.

Section 5006, par. (c), Code 1930; State Highway Commission v. Gully, 145 So. 351; Stewart v. State Highway Commission, 148 So. 218.

Individual signatures of members does not constitute approval of state capitol commission.

4 C. J. 1464; Donora Light, etc., Co. Case, 27 Pa. 522; State v. Smith, 23 Mont. 44, 57 P. 449; Fuller v. Board of University, etc., 129 N.W. 1029; Brown v. City of Newburyport, 95 N.E. 504; Hunter v. Bennett, 149 Miss. 368; Attala County v. Miss. Tractor & Equipment Co., 162 Miss. 564; Amite Co. v. Mills, 138 Miss. 222; Smith Co. v. Mangum, 127 Miss. 192; C. & G. Highway v. Carothers, 129 Miss. 645; Thomas v. Railroad Co., 101 U.S. 71, 25 L.Ed. 950; Monett E. L. P. & I. Co. v. City of Monett, C. C. J. D. Mo., 186 F. 360; Hitchcock v. Galveston, 24 L.Ed. 659; Louisiana v. Wood, 26 L.Ed. 153; Chapman v. County of Douglas, 27 L.Ed. 378; Trans. Co. v. Pullman Co., 35 L.Ed. 55; Logan County Bank v. Townsend, 35 L.Ed. 107; Marsh v. Fulton, 19 L.Ed. 1040; Thomas v. Railroad Co., 25 L.Ed. 950.

Agent's authority is limited by minutes of commission, of which minutes appellant knew, or should have known.

Wellford & Withers v. Arnold, 140 So. 220, 162 Miss. 786; City & Suburban Homes v. Morrow, 133 N.Y.S. 968; Hamilton v. Federal Land Bank, 161 Miss. 743; Meader v. Inhabitants of Town of West Newbury, 152 N.E. 315; County Board of Education v. Durham, 249 S.W. 1028; Rural Special School District v. First National Bank, 292 S.W. 1012; Coulson v. Stevens, 122 Miss. 807.

The director, if agent at all, was a special agent.

Gruner Lbr. Co. v. Algonquin Lbr. Co., 123 Miss. 168.

A merely casual reading of section 4992 of the Code of 1930 shows clearly that there is nothing directory about the statute. It is clearly mandatory and its terms in that respect are as clear and unambiguous as it would be possible for the Legislature to make them.

The case at bar does not involve any mere directory powers of the highway commission, nor is our objection to the contract based upon the failure to comply with strict formalities provided for by statute. To the contrary the objection is based upon a mandatory provision of the statute and rather than our objection being based on failure to exercise the power with strict formalities, our objection is based upon the utter lack of authority to enter into the contract in the first instance. Our objection goes to the very heart of the contract itself.

Sections 4992, 5006 and 211, Code of 1930; Smith County v. Mangum, 89 So. 913, 127 Miss. 192; Groton, etc., Co. v. Warren County, 80 Miss. 214; Town of Bloomfield v. Bank, 121 U.S. 121, 30 L.Ed. 923; City of Fort Worth v. First Baptist Church, 268 S.W. 1016; Miller v. Alsbaugh, 2 S.W. 208; State v. Milling Co., 57 S.W. 1008; Smith v. Board of Supervisors, 124 Miss. 36; Hunter v. Bennett, 149 Miss. 368; C. & G. Highway v. Carothers, 129 Miss. 645; Oliver v. Miles, 144 Miss. 852, 110 So. 666.

As a general rule mere silence or delay will not be conclusive of ratification, unless the rights of innocent third persons have been prejudiced thereby.

2 C. J. 510; Thomas v. Railroad. Co., 101 U.S. 71, 25 L.Ed. 950; Plaza Amusement Co. v. Rothernberg, 159 Miss. 800, 131 So. 350; Norden v. Duke, 104 N.Y.S. 854.

Argued orally by Forrest B. Jackson and Marcellus C. Green, for appellant, and by E. R. Holmes, Jr., for appellee.

OPINION

Cook, J.

On February 27, 1933, the appellee, state highway commission filed its bill of complaint alleging, in substance, that it had leased certain floors in a building owned by appellant, known as the Tower building, for a period of two years, which expired on February 28, 1933; that it was ready, anxious, willing, and able to remove itself and all its effects, supplies, equipment, furniture, and other personal property from the office space then occupied by it in said Tower building, and had attempted to do so, but the appellant, in violation of law and in violation of the terms and provisions of said lease contract, had refused to allow appellee the use of its elevators in removing appellee's said property from the building; that the appellee had demanded, and been refused, in writing, the use of the elevators, and motive power necessary for the operation thereof, in the removal of its effects from said building; that there was no other practical way to remove said effects and office furniture from said building; and that a...