Tallahatchie Drainage Dist. No. 1 v. Yocona-Tallahatchie Drainage Dist. No. 1.

• Citation: 114 So. 264,148 Miss. 182
• Decision Date: 17 October 1927
• Docket Number: 26509
• Court: United States State Supreme Court of Mississippi
• Parties: TALLAHATCHIE DRAINAGE DIST. NO. 1 v. YOCONA-TALLAHATCHIE DRAINAGE DIST. NO. 1. [*]

114 So. 264

148 Miss. 182

TALLAHATCHIE DRAINAGE DIST. NO. 1 v. YOCONA-TALLAHATCHIE DRAINAGE DIST. NO. 1. ^[*]

No. 26509

Supreme Court of Mississippi

October 17, 1927

Division B

1 COUNTIES. Boards of supervisors have no implied powers, and can act only through minutes.

Boards of supervisors have no implied powers. and can act only through their minutes spread upon the records of their office.

2 DRAINS. "Drainage district" is political subdivision of state vested with necessary governmental powers (Hemingway's Code 1927, sections 4946-5003).

A "drainage district," under Laws 1912, chapter 195 and amendments (Hemingway's Code 1927, sections 4946-5003) is a political subdivision of the state, created for the purpose of draining and reclaiming wet and overflowed land, as well as to preserve the public health and convenience, and for the accomplishment of those purposes is vested with necessary governmental powers.

3 DRAINS. Drainage gistrict accumulating material in attempted annexation of territory had such title thereto as authorized sale to another district (Hemingway's Code 1927, sections 4946-5003, 5019).

Where drainage district organized under Laws 1912, chapter 195, and amendments (Hemingway's Code 1927, sections 4946-5003) attempted to extend its boundaries by proceeding under Laws 1920, chapter 281 (Hemingway's Code 1927, section 5019), which proceedings were held to be null and void, the district had sufficient interest and title in and to engineers' reports, surveys, stakes, monuments, maps, and other material secured in attempt to annex additional territory as authorized it to sell and transfer possession thereof to another district consisting of lands sought to be included by extension.

4. DRAINS. Drainage district had right to purchase material accumulated by another district in attempt to annex territory (Hemingway's Code 1927, section 4955).

Under Laws 1918, chapter 159 (Hemingway's Code 1927, section 4955), commissioners of drainage district had right to purchase and pay for engineers' reports, surveys, and other material accumulated by another district in attempt to annex territory of which district was composed.

5. APPEAL AND ERROP. Raising question of validity of contract by drainage commissioners at meeting outside state by insufficient pleas requires presumption that contract was properly executed. Where in suit to recover for purchase price of material sold drainage district question of whether contract was void because authorized by meeting of commissioners held outside the state was raised in pleas held to be insufficient in law, it will be presumed, under the rule that a plea is to be taken most strictly against the pleader, that contract was executed within the state and within drainage districts, parties to contract, and signature of all commissioners was sufficient to bind all parties.

Suggestion of Error Overruled Nov. 14, 1927.

APPEAL from circuit court of Tallahatchie county.

HON. J. F. DEAN, Special Judge.

Action by Yocona-Tallahatchie Drainage District No. 1 against Tallahatchie Drainage District No. 1. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Percy & Percy, Caldwell & Caldwell, Hays & Whitten, R. C. McBee, and John M. Kuykendall, for appellant.

I. The plaintiff had no title to or interest in what it attempted to sell. The acts of appellee in employing engineers making, surveys and accumulating data were all ultra vires. It had no power to purchase or pay for such information or to acquire it. It was an expenditure by the district which any taxpayer could enjoin. The issuance of bonds in order to raise money for that purpose would be invalid. The bonds, if issued, even in the hands of an innocent purchaser would be invalid and the payment of same could be enjoined. 19 R. C. L. 1018; Citizens Loan Ass'n v. Topeka, 22 L.Ed. 455; Lewis v. Shreveport, 27 L.Ed. 728; Freeman on Judgments (3 Ed.), 117; Lake v. Perry, 95 Miss. 550-73.

The appellee's power and rights are purely statutory. It is a creature of the statute. By what statute did it acquire the data which it proposes to sell? Our court says: By none and in violation of statute law.

By what authority does it propose to sell that to which it never acquired title? The appellee in making out its case disclosed to the court that it never had lawfully acquired the property which it contracted to sell, and that it is now seeking affirmative aid of a court of justice in the consummation of a wholly illegal course of conduct. Southern Reality Co. v. Tchula Coop. Stores, 114 Miss. 322; Dixie Rubber Co. v. Cato, 110 So. 670.

II. The defendant had no power to make the contract sued on. If the appellant had power to make such a contract that power must be found in the statute which created it. Standard Oil Co. v. Nat'l Surety Co., 107 So. 559.

A board of supervisors can act only in the manner authorized by law. Jefferson Co. v. Grafton, 74 Miss. 435. The power to act must be clearly given by statute. Crittenden v. Booneville, 92 Miss. 277.

And so a municipality has no power except that conferred by statute. Hazlehurst v. Hayes, 96 Miss. 656.

The commissioners of a drainage district can exercise only such powers as are expressly conferred or necessarily implied from the powers which have been expressly granted. Keystone Drainage Dist. v. Drainage Dist., 180 S.W. 215. The drainage acts are complete within themselves and unless a right or power is there given, it cannot be looked for elsewhere. Bogue Hasty Drainage Dist. v. Napanee Plantations Co., 118 Miss. 493.

What is the power given this drainage district in regard to acquiring maps, plans and engineering data? The Laws of 1918, chapter 159, which is amendatory to the Acts of 1914, chapter 269, provides that the board of commissioners may employ such engineers and other agents as may be needful; such engineers to give bond for the faithful performance of their duties, etc., and shall provide for reasonable compensation to such engineers. The board is authorized to prepare plans and to procure estimates as to the cost thereof from a competent engineer or engineers. We submit that no authority is found here authorizing the purchase from another drainage district of maps, plans, data, etc., complied in some other proceedings. No such authority is expressed and no such authority is implied from the language used. Assuming that such a purchase was advantageous to the district, nevertheless the commissioners were without authority to make it. Wrought Iron Bridge Co. v. Board of Commissioners, 48 N.E. 1050.

The statute in respect to the matter sought to be contracted for entered into the contract. Standard Oil Co. v. Nat'l Surety Co., 107 So. 559; Mound City, etc., Co. v. Miller, 170 Mo. 240, 70 S.W. 721; Cincinnati v. Public Utilities Com., 98 Ohio St. 320; Hord v. State, 79 N.E. 1916, 167 Ind. 622.

Both parties to the contract being governmental corporations, the rule of pari delicto has no application. Noxubee Hdwe. Co. v. Macon, 90 Miss. 636; Edwards Hotel Co. v. Jackson, 96 Miss. 547-75.

Without statutory power the appellant district had no authority to make this contract. A statutory power for the contract cannot be found in section 4442-C, Hemingway's Code Supplement.

III. The contract is invalid and void because the meeting of the plaintiff district and of the defendant district, at which the contract was entered into, was held outside of the state of Mississippi and no minutes were made of said meeting, and no meeting was held within the state ratifying or approving said contract. Section 4441-A fixes the term of drainage commissioners and further provides: "They shall hold their meetings at a time and place in the county or counties in which any part of the district is situated upon the call of the president."

A contract of a governmental corporation, a political subdivision of the state (and there is no reason to differentiate between a drainage district and a municipality), must be made or authorized at a legal meeting of the corporate body. Kidder v. McCallahan, 126 Miss. 1888. Even a chancery court is without jurisdiction, by consent of the parties, to make a contract for a board of supervisors. The contract must be made as provided by law or it is void, so void as being incapable of ratification. C. & G. Railway v. Carothers, 129 Miss. 645. A corporation must act as a board. Star Mills v. Bailey, 140 A. S. R. 370, 3 Fletcher on Corporations, 3044.

In a number of cases the supreme court of Illinois has held that the powers of drainage commissioners are confined to the territorial limits of the district and must be exercised within its borders and all acts done at meetings held outside of the borders are null and void. People v. Camp, 243 Ill. 154, 90 N.E. 215; People v. Carr, 231 Ill. 502, 83 N.E. 269; People v. Schwank, 237 Ill. 40, 86 N.E. 631; People v. Anderson, 239 Ill. , 87 N.E. 1019; People v. Hepler, 240 Ill. 196, 88 N.E. 491. See, also, 3 Fletcher on Corporations, 2776. Corporate acts of a corporate body without the state are void. Aspenwall v. O. & M. R. R. Co., 83 Am. Dec. 329.

We are at a loss to conjecture a reason, in the face of a statute providing that meetings shall be held in the county where the district is located, for holding that a meeting held in the city of Memphis is valid, but that a meeting of the board of supervisors not held in the courthouse as required by statute, is void. Yet in a series of decisions, our court has applied this rule as to meeting of boards of supervisors. Harris v. State, 72 Miss. 960; Lester v. Miller, 76 Miss. 317; Lake v. Perry, 95 Miss. 573; Barrett v. School Dist., 123 Miss. 377; Board v. O'Neal, 130 Miss. 57; Jones v. State, 1414 Miss. 894.

It seems needless...