State ex rel. Stirling v. Board of Levee Commissioners of Yazoo-Mississippi Delta

• Decision Date: 08 February 1910
• Citation: 51 So. 211,96 Miss. 677
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI EX REL. J. B. STIRLING, ATTORNEY-GENERAL, v. BOARD OF LEVEE COMMISSIONERS OF YAZOO-MISSISSIPPI DELTA

51 So. 211

96 Miss. 677

STATE OF MISSISSIPPI EX REL. J. B. STIRLING, ATTORNEY-GENERAL, v. BOARD OF LEVEE COMMISSIONERS OF YAZOO-MISSISSIPPI DELTA

Supreme Court of Mississippi

February 8, 1910

March 1910

FROM the chancery court, second district, Coahoma county, HON MANUEL E. DENTON, Chancellor.

The State ex rel., etc., appellant, was complainant in the court below; the board of levee commissioners, appellee, was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court.

Reversed.

J. B Stirling, attorney-general, and George Butler, assistant attorney-general, for appellant.

The contract between the board of levee commissioners and D. A Scott, its president, and one of its members, is void because contrary to the public policy of the state; is void at common law, as well as under the constitution and statutes of this state. It is perfecly manifest that the members of the levee board are public officers and that the levee district is a municipal or public corporation, exercising certain governmental functions, and, therefore, simply a governmental agency of the state. The levee district and the board of levee commissioners are provided for in Constitution 1890, sections 227 to 239 inclusive. That the levee commissioners are public officers cannot be doubted. Yerger v. State, 91 Miss. 802, 45 So. 849.

It is a principle universally recognized that a trustee, whether private or public, cannot contract with himself. The members of the levee board are public trustees, individually and collectively, and, therefore, the contract falls within the condemnation of all the courts upon this subject.

It may be that if Constitution 1890, section 109 and Code 1906, § 1305, be considered without reference to the principles of the common law, this contract would not be void, proceeding upon the principle announced by this court in a recent case construing Code 1906, § 3894; but such effect has not been given similar statutes in other states.

However this may be, the contract is clearly violative of section 109 of the Constitution. That section, by its terms, applies to all contracts of the state, district, county, city, or town, and to all public officers of this state. It is intended to prohibit officers from contracting with themselves in regard to matters with which they are required to deal in their official capacity. It may be true that it is simply declarative of the common law in this regard, but it shows the intent of the constitutional makers forever to put it beyond the power of the legislature to change the law in this regard, or to validate such contracts and, thereby, make possible any maladministration in public affairs along this line. To illustrate, independent of section 109 of the Constitution a tax collector cannot purchase at his own sale: McLeod v. Buckhalter, 57 Miss. 65; and a chancery clerk cannot purchase at a tax collector's sale: Barker v. Jackson, 90 Miss. 621, 44 So. 34. The court, however, declined to extend the rule in Means v. Haley, 86 Miss. 557, 38 So. 506, so as to preclude the wife of the tax collector from purchasing at a tax collector's sale, and this answers appellee's contention that if the rule contended for is to prevail then there is no limit to be placed upon such contracts.

In 15 Am. & Eng. Ency. of Law, 975, it is said: "The rule of public policy which prohibits a public officer from placing himself in a position where his individual interest is in opposition to his official duty has often been applied to cases where public officers, empowered to contract for services, or the performance of other work, or the furnishing of supplies, contract with themselves therefor. And where the procurement of services to be performed for a public corporation is entrusted to several officers, it is equally against public policy to permit one of such officers to contract therefor, though he takes no action as an officer on the question of his employment.

In many jurisdictions statutes declarative of the common law rule have been passed, expressly prohibiting public officers from being interested in any contract for the furnishing of supplies, etc., to the corporation of which they are officers, and contracts entered into by them in violation of such a statutory provision are a fortiori illegal." The same doctrine is announced in 28 Cyc. 625; Smith's Municipal Corporations, 739; Abbott's Municipal Corporations, §§ 255 et seq.; Throop on Public Officers, §§ 610 et seq.; Berka v. Woodward, 125 Cal. 119, 45 L. R. A. 420; Michoud v. Girrord, 4 How. (U.S.) 503; Hardware Co. v. Macon, 90 Miss. 636, 43 So. 304.

A contract between a municipal or legislative body and one of its members or a firm, of which he is a member, to perform legal services for such body or the municipality is void. Young v. Mankato, 97 Minn. 696, 3 L. R. A. (N. S.) 849; Beebe v. Sullivan Co., 64 Hun, 377; Burkett v. Athens, 59 S.W. 667; West v. Berry, 98 Ga. 402.

A contract between a city and a member of its council to render a medical treatment to its paupers is illegal. Goodrich v. Waterville, 88 Me. 39, 33 A. 659.

Employment by the board of health of one of its members to vaccinate school children is not enforcible. Snipes v. Winston, 126 N.C. 374, 78 Am. St. Rep. 666.

Neither may it employ a member of its council to superintend the extension of the city waterworks or prepare plans therefor. Stone v. Bevan, 88 Minn. 127, 97 Am. St. Rep. 506; Mellis v. Shirley, 16 Q. B. D. 446.

Edward Mayes, for appellee.

First. We contend that the constitutional provision, and the statute, do not contemplate nor include such a contract as this.

Secondly. We also contend that even if the contract because of Mr. Scott's connection with the board, were voidable, it lies entirely with the board to avoid it; and that this proceeding which the board did not originate, does not prosecute, cannot be maintained.

Thirdly. We also contend that even if the contract was not binding, yet, nevertheless, the service being reasonable and necessary, Mr. Scott is entitled to recover on a quantum meruit, although not for a fixed amount by the terms of the contract; and on the quantum meruit it appears that the services were worth the amount involved; wherefore the injunction should be dissolved.

The leading proposition is that neither the Constitution nor the statute includes this case.

In the construction and application of the Constitution and statute, the cardinal rule must be followed that the old law, the mischief, and the remedy intended are to be held in view.

Prior to the adoption of the constitutional provision it came within common observation and experience that public officials were too much inclined to let out contracts for services in the construction of public works and for similar services, including printing and matters like that and be themselves interested in the execution of those services and in the consequent reception of the compensation paid. So, on the other hand, where large purchases were to be made for the benefit of the public, the same condition of things existed, all of which were detrimental to the public. And plainly we submit it was the making of contracts of that sort whereby large moneys were to be paid out, either for the construction of public works or the furnishing of public supplies or the acquisition of public property which induced the adoption of the constitutional provision, and the consequent enactment of the statute. Of course on contracts of exactly similar nature, the same principle would apply and the constitution and the law would also apply, even although these contracts should not call for the disbursement of large moneys from the municipal treasury.

The largeness of the evil that was suffered may have been the efficient cause by which public attention was attracted to that evil. But no doubt all instances, whether great or small, come within the prohibition of the constitution when they are instances of the prohibited class.

But this arrangement was not within the prohibited class. It was not a contract of that nature which either the constitution or ...