Anderson v. Board of Supervisors of Issaquena County

Whitfield, J., delivered the opinion of the court. Responding to the request of counsel to dbtermine the questions which are vital, we proceed at once to the merits. The scheme propounded by the act of February 1, 1850 (Laws, p. 214), as amended by the act of November 19, 1857 (Laws, p. 87), was this: A board of levee inspectors for Issaquena county was created by the'act, called in section 8 “commissioners.” That board had a president, and levee treasurer, and its duties were “to examine and designate the lands where levees were necessary to be erected, for the generál good; to lay out the line of said levee or levees, and to determine their extent; to contract for the building of the same, as herein provided for'; to superintend the construction of the same; to see that the work was properly executed, and to prescribe the manner of doing it, the line at which it should be commenced and completed; and, generally, to do whatever else they may deem necessary, in order to have the same completed in the best manner and at the least expense to the public.” Section 1 of said act. Said board was to examine and lay out the best route for a levee from the upper line of said county to the lower line of the same; to employ, by contract or otherwise, a competent engineer to make the survey and location; to estimate the probable cost of said levee, and report the same to the president of the board of police. The board of police was then to levy a tax of not exceeding ten cents per acre on all lands in said county subject to taxation, and annually thereafter, at such time as they might deem expedient, a — 893 — like tax, until the amount of the tax should he sufficient for the erection of said levee and payment of all expensés incident to the same, or arising from the provisions of said act. The report and estimate of the board of levee inspectors was to be filed in the office of the clerk of the board of police, as a guide for the board of police in levying the tax. This tax was made a lien upon the lands in the county to the same extent to which they were liable for state and county taxes, and any lands in the county could be sold for nonpayment of this levee tax. Section 4 of the act. The board of police (section 6), as soon as the survey was completed, and the report of the location made to it, was to divide the levee into sections, and designate the sections first to be erected; the board of levee inspectors was then, as soon as practicable after such designation of the sections first to be built, to ‘ ‘ cause the same to be erected, by contracts or otherwise, as they should deem best, and, if by contract, should designate the.line where the same should be completed, and should pay from the levee funds in the hands of the treasurer [the levee treasurer], the amount due upon such contracts, and all expenses incurred in the erection of said levees, etc., by an order signed by a majority of said board." And in section 9 it is provided that ‘ ‘ said board might issue orders on said treasurer of said levee fund, payable six, twelve or eighteen months after date, for work done on said levee, ’ ’ which orders, says the section, ‘ ‘ shall be accepted by said treasurer, and when by him accepted, shall, when due, be paid out of any money in said treasury not otherwise appropriated.” The two orders in this case were manifestly drawn ünder the clause just quoted, as their face shows, and the board of inspectors clearly have the right to draw them, though there were no funds in the hands of the levee treasurer when drawn, against money to be in his hands, when due, which money the board of police was to raise by the tax, and out of this money, when raised, the orders, when due, were to be paid. This — 894 — section 9 completely disposes of the contention that the hoard of inspectors could not draw orders except against funds then, at the time they might be drawn, in the hands of the levee treasurer. The board of inspectors was a special tribunal created for the purpose of constructing the levees. To it was delegated the power to make all contracts touching that subject-matter, and having made the contracts and issued the orders, in compliance with the statute, for work done on the levee, and those orders having been accepted by the levee treasurer, the orders were, in effect, county warrants, and the board of police has no discretion as to paying them. It was its mandatory duty to levy the tax and pay the orders, no fraud being-shown; and the case is now here on demurrer only. The board of levee inspectors created by this act was as much a county agency within the sphere of its powers, as was the board of police within the sphere of its powers. The board of police issued warrants for all proper claims touching ordinary county matters, and the board of levee inspectors made contracts and issued orders, and it alone, “for work done on levees ” — an item of extraordinary county expense. These orders thus issued by this special county agency for this extraordinary expense, were as truly county obligations, under this particular act, as were ordinary county warrants under the general law. The taxes to pay them were levied on all the lands in the county, and were a lien on all the lands in the county. The collection of these taxes was to be made through the board of police and the ordinary fiscal agents of the county, but they were to be paid out only on the order of the board of inspectors, 'who alone had the power to do all else, save the designation of parts of levees first to be built, that in any way related to the construction of the levees, and the making payment of contracts relating thereto. It, and it alone, was the county agency touching the contracts and their payment; the orders were therefore a county debt, and to be paid by these taxes, and were a lien on all the lands in the county. — 895 — It was not competent for the legislature, if it had attempted it, to substitute another debtor, or a different security, without the consent of the owners of the orders. But we do not think this was attempted. The change in the machinery for the administration of the levee matters, whereby the board of levee commissioners was created, expressly provided that the local board of levee inspectors should be retained in Issaquena county for three years, to pay all debts for .levee work done, and that such debts remaining unpaid were to be assumed and paid by that board. But the owners of these orders were not required to accept this new scheme of payment if they preferred the old, nor were they required by the fourth section of the act of February 10, 1860 (laws, p. 434), to surrender these orders for general levee scrip, nor to be barred if these orders were not registered by November 1, 1860. That act did not provide that claims not presented should be barred, but declared an order of priority in accordance with which claims or scrip should be paid. And the act of February 13, 1867 (see sections 1 and 5, p. 244, of laws 7 and 12), provided that those who had ‘ ‘ demands ’ ’ should present them to the secretary of the general levee board, on or before the first day of June, 1867, in order to share in the benefits of that act, and payment out of moneys collected under its provisions. But these orders had become county debts long before, at a time when the system of district leveeing was unknown, and under this particular act, which expressly made them county debts, and secured them by taxes, made a charge on all the lands in the county. The county remained the debtor, and taxes on all its lands a security therefor, notwithstanding the act of 1867. There are in the legislation subsequent to the act of 1850 many instances of recognition of claims like these as county debts. The holders of these orders held under this contract, might, and were entitled to, hold the same debtor, and to look to the same security provided specifically by the law of their contract, and we do not think legislation did, or could if it had attempted — 896 — it, impair their rights fixed and vested under the act of 1850, section 9. To protect such statutes against the inhibition of the constitution, against impairing the obligation of contracts, it is essential that they should neither take away nor impair any vested right. No presentation to the board of supervisors was necessary. Being of equal dignity with the usual county warrants, and, in essential nature, themselves county warrants issued by the board, which alone had the power to issue them, and being about a matter committed exclusively to it, they are to be treated just as county warrants. It follows, also, that they are not barred. See Taylor v. Chickasaw County, 70 Miss., 68, and authorities there cited. Being, in their essential nature, county warrants, though not of the ordinary kind, we do not think they bear interest. The county, a local subdivision of the sovereignty, cannot have the burden of interest imposed on it, except by statute either expressly authorizing such burdens, or by clear and necessary implication warranting it. Section 9 does not expressly authorize interest. Nor does it clearly and necessarily, by implication, authorize it. The holder of these orders, accepting them, to be paid six, twelve, and eighteen months from date, may well have taken them, expecting only to receive the principal amount named at these defined dates, because only then was it contemplated that there would be money raised by taxation to pay them. He may well be treated as having contemplated that he could only be paid at the end of the periods named, for the reason that no funds were then on hand, and that the sum required to pay could only be raised, and that sum precisely as named, without interest, by the accrual of the periods named. And we think this was the meaning of the statute, and the contemplation of the parties to the contract culminating in the warrants. Board v. Klein,, 51 Miss., 816. Warrants issued upon the allowance of a claim, whether by the board of supervisors in the ordinary way, for current demands, or by a special county tribunal on extraordinary demands committed by the legisla — 897 — ture exclusively to it, both being in their essential, nature county warrants, are not judgments or contracts in the literal sense of these terms, within the meaning of our statutes allowing interest. Dyer v. Covington, 19 Pa. St., 201; Board v. Klein, supra. See also, Camp v. Knox Co., 3 Lea (Tenn.), 199; Hall v. Jackson Co., 95 Ill., 353. The interest question was not presented or decided in Klein v. Board, 58 Miss., 543. The claim there was refused allowance by the board of supervisors, and the decision was merely that suit could be maintained. The interest feature passed sub silentio. The judgment is reversed, the demurrer overruled and the cause remanded.