Tullos v. Town of Magee

• Decision Date: 14 March 1938
• Docket Number: 33104
• Court: Mississippi Supreme Court
• Parties: TULLOS v. TOWN OF MAGEE

179 So. 557

181 Miss. 288

TULLOS v. TOWN OF MAGEE

No. 33104

Supreme Court of Mississippi

March 14, 1938

Division A

1 EVIDENCE.

In suit on contract of employment to operate town water pump, where deed from plaintiff to town of land on which pump was located did not recite that plaintiff's employment was intended as part consideration for deed, but recited other consideration, such fact could not be shown by other evidence.

2. MUNICIPAL CORPORATIONS.

Under statute authorizing municipalities to install and maintain waterworks systems, municipalities may make all contracts reasonably necessary and expedient for the accomplishment of such purpose (Code 1930, section 2391).

3. MUNICIPAL CORPORATIONS.

Under statute authorizing municipalities to install and maintain waterworks systems, town could make contract for employment of operator of water pump for stipulated compensation provided such contract was reasonably necessary and expedient for maintenance of waterworks system (Code 1930, section 2391).

4. MUNICIPAL CORPORATIONS.

Municipal officers may not bind, their successors in the exercise of their discretionary authority to fix the compensation of employees engaged for the performance of public services.

5. MUNICIPAL CORPORATIONS.

A municipality is not estopped to repudiate ultra vires contracts of its officers attempting to bind their successors in exercise of discretionary authority to fix compensation of employees engaged for performance of public services, since all persons dealing with municipality are charged with knowledge of laws by which it is governed, which limit power of its officers.

6. MUNICIPAL CORPORATIONS.

A municipality has only those powers which are expressly conferred by statute, together with those granted by necessary implication, and such powers are those of the municipality, and not of its officers (Code 1930, section 2391).

7. MUNICIPAL CORPORATIONS.

A contract for employment, at stipulated compensation, of operator of town water pump for life with right of succession in operator's immediate lineal heirs, was enforceable only during term of town officers who made contract, and was ultra vires as respects contemplated employment thereafter notwithstanding powers expressly and impliedly granted by statute authorizing municipalities to install and maintain waterworks systems (Code 1930, section 2391).

HON EDGAR M. LANE, Judge.

APPEAL from the circuit court of Simpson county, HON. EDGAR M. LANE, Judge.

Suit by W. A. Tullos against the Town of Magee on a contract for plaintiff's employment to operate a water pump. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

R. S. Tullos, of Raleigh, and McIntosh & McIntosh, of Collins, for appellant.

All municipal corporations'have expressed statutory authority to purchase real estete without the corporate limits.

Sections 2391 and 2315, code of 1930.

It is evident that appellee town of Magee, had expressed power and authority under the aforesaid statutes to purchase a Dpellant's spring as a source of supply for its waterworks system. The power to purchase by statute raises the implied power to contract and become bound to pay the consideration agreed upon.

Town of Magee v. Mallett, 174 So. 246.

Each new board of mayor and aldermen has ratified the original contract by continuing to use the spring as a water source for the municipal waterworks, and by continuing to retain appellant under his contract of employment. Since each new board has seen fit to accept all of the benefits under the original contract to purchase appellant 's spring, the Town of Magee is bound to pay all of the considerations contracted for.

M. E. Church v. Vicksburg, 50 Miss. 605; Edwards House Co. v. City of Jackson, 103 So. 429.

It is respectfully submitted that the case at bar is similar to the Church case in that the contract for real estate as a water supply for the Town of Magee is expressly authorized by legislative grant, and is not prohibited by law as the leasing of a street as set out in the Edwards House case.

A municipal corporation exercises business functions in contracting for waterworks, etc., and is bound by its contracts as other corporations of private nature.

Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 259; Williams v. State, 60 So. 903; Brown v. Town of Sebastopol, 95 P. 365.

It is our humble contention that the Town of Magee was performing a business transaction in its contract with the appellant and should be held to the laws of the land applicable to private corporations.

An agreement for permanent employment is binding upon both parties when the employee purchases the employment with a valuable consideration.

18 R. C. L. 510, sec. 20; Jackson v. I. C. R. Co., 24 So. 874; F. S. Royster Guano Co. v. Hall, 68 F.2d 533; Pierce v. Tennessee Coal Co., 173 U.S. 1, 19 S.Ct. 335, 43 L.Ed. 591; Penn Co. v. Donald, 6 Ind.App. 109, 32 N.E. 802, 51 Am. St. Rep. 289; Usher v. N. Y. Cent. & H. R. Co., 76 A.D. 422, 78 N.Y.S. 508; Brighton v. Lake Shore & M: S. R. Co., 103 Mich. 420, 61 N.W. 550.

A municipal corporation, in the transaction of its bustness duties is obligated in the same manner as private corporations.

M. E. Church v. Vicksburg, 50 Miss. 605; Edwards House Co. v. Jackson, 103 So. 429; Maney v. Oklahoma City, 150 Okla. 77; Williams v. State, 60 So. 903; Brown v. Sebastopol, 95 P. 365; Washington Water Power Co. v. City of Spokane, 154 P. 333; Hitchcock v. City of Galveston, 96 U.S. 341, 24 L.Ed. 659.

The appellant has performed by conveyance of his valuable spring, and the town has at all times since said conveyance was executed used the water therefrom to sell to its inhabitants, and have accepted the appellant 's services in pumping water from the spring into the town's waterworks system. At the same time the towa seeks to retain the spring, work the appellant at the same water pump, but reduce the material consideration agreed upon for the original contract.

It is respectfully submitted that the authorities cited in this brief amply sustain our contention in this connection.

The Town of Magee was transacting a business duty when it agreed upon the consideration of perscmal seroice; it is bound to the same extent in such transactions as private corporations, and a private corporation is bound by its contract of personal service for permanent employment.

W. M. Lofton, of Mendenhall, for appellee.

Among the powers possessed by the Mayor and Board of Aldermen it will be seen that under Section 2408 of the Code of 1930 that they have power "to prescribe the duties and to fix the compensation of all officers and employees, and to require bond with sureties for the performance of duties from all officers and employees." It seems to us from the language just quoted from said Section 2408, without citing any further authority, that the Mayor and Board of Aldermen had an undoubted right to fix the salary of the plaintiff while in regular session on the 3rd day of January, 1933. If so, then the plaintiff has no case.

To argue that one municipal board had no authority to deal wth a subject, whether to pass an ordinance fixing the salary of an officer or an employee, and to change the amount of such salary as fixed by their predecessors in office, or to pass an ordinance dealing with misdemeanors as fixed by the Mississippi Code of 1930, would have about as much reason to support it, as to argue that one session of the Mississippi Legislature could not change what their predecessors in office had done. We take it that nobody would seriously contend that they did not have the same jurisdiction, in a legislative capacity, that their predecessors had.

We further contend that the Supreme Court has already settled the...