Jefferson County v. Grafton

74 Miss. 435

Opinion

Whitfield, J.,

delivered the opinion of the court.

The averments of the bill, so far as material to the solution of this case, may be thus condensed: That the county of Jefferson bought, for $4,000, on November 17, 1874, of Gilchrist, administrator, under a decree of the chancery court, a tract of land on which were the buildings constituting the Fayette Female Academy; that on September 4, 1883, the board of supervisors undertook to sell and convey said land to certain parties, purporting to be the trustees of the Presbytery of Mississippi, for $100, upon the express condition, set out in the order of the board and the deed, that the presbytery should £ £ establish and maintain a first-class white female school on said premises, within ten years from the date of confirmation of said sale, ’ ’ and that, if said presbytery should fail so to do, then ££ all of said property should revert to Jefferson county;” that on May 25, 1885, a new board of supervisors recited that the conditions had been complied with, in an order on their minutes, and directed an unconditional deed to be made to said board of trustees of said presbytery, which was made on May 28, 1885, said deed further reciting that it was given in “ full confirmation of the deed of September 4, 1883;” that on April 5, 1884, said presbytery passed an order providing that, in the event the board of supervisors failed to secure the State Industrial School, the board of trustees of the Fayette Female Academy should convey the land to Rev. D. A. Planck, upon his assuming all the obligations imposed by the original contract, and promising the ‘ ‘ support and encouragement of said presbytery ’ ’ when the school ‘‘ should ’ ’ become worthy of their interest; that on August 29, 1885, Rev. P. S. Shaw, president of the board of trustees of the Fayette Female Academy, executed a deed of the land for $100, to said D. A. Planck, said deed reciting that it was executed in pursuance of the “authorization and qualification ’ ’ set forth in the aforesaid order of presbytery of April 5, 1884; that afterwards said D. A. Planck and wife conveyed said land to appellee, Miss Kate Wharton (now Grafton), for $1,000 cash; that Miss Kate Wharton (now Grafton) afterwards conveyed one acre of the land to Mrs. Catherine Doyle, and the balance to Mrs. Bell B. Harper, for the considerations therein named; that the consideration of $100 in the deed from the board of supervisors to said presbytery was so grossly inadequate as to make the deed amount to a pure donation of public property to private individuals; and, finally, that the conditions set out in said deed were never complied with, but violated; that there was not established and maintained on said premises, ‘ ‘ within ten years of the date of the attempted confirmation of said pretended sale, a first-class white female school;” and that, hence, all said property had reverted to Jefferson county. And, with the bill, complainant tendered the $100 received by the county on the alleged sale to said presbytery. Respondent’s demurrer admitted all the facts well pleaded in these averments, and the demurrer was sustained.

It is first insisted by appellees that the county had no power to buy this land. Appellees went in under the county’s title, and it is not for them to say the county had no power to buy. That is a matter of which the state alone could complain. Quitman Co. v. Stritze, 70 Miss., 320; Hough v. Land Co., 73 Ill., 28; Mining Co. v. Clarkin, 14 Cal., 544; Cowell v. Springs Co., 100 U. S., 60; 15 Am. & Eng. Enc. L., 1062.

Appellees next insist that municipal corporations have, generally, the power to dispose of property not held for public use, as an inherent power belonging to such corporations (citing 15 Am. & Eng. Ene. L., 1063); but, as stated expressly therein, even municipal corporations proper have no such power when it is withheld by the law under which they are organized, and a county is not a municipal corporation proper.

It is next insisted by appellees that sales made by municipal corporations cannot be annulled because improvidently made, citing the same authority. But it is expressly therein stated that this is true only where the corporation has the power to sell, and the question here presented is one of power to sell at all this property.

It is next urged by appellees that one board of supervisors is bound by the acts of its predecessors. But the authority cited, correctly shows that this is true only where the acts of ‘ ‘ their predecessors were within the scope of their authority. ’ ’ 4 Am. & Eng. Enc. L., 375.

This brings us to the vital question in the case. Did the board of supervisors have, under the law as it then stood (the code of 1880, § 2144), the power to make the sale to the presbytery of this property? That section, after enumerating various powers, provides that the board £ £ shall have such further-powers as are, or shall be, conferred upon them by law. ’ ’ It is of significant aid in determining this question that not until § 304, of the code of 1892, was adopted, was there any provision made, as is therein made, that£ £ in case any of the real estate belonging to the county shall cease to be used for county purposes, the board of supervisors may sell and convey the same, on such terms as the board may elect. ’ ’ Counsel for appellees contend that this section is merely declaratory of what the law was without it. But it is well said, in 4 Am. & Eng. Enc. L., p. 375, that, “ being creatures of statute, endowed only with special powers, and created for special purposes, they can exercise only such powers as are expressly conferred by statute, or which are necessarily implied.” And, again, at page 379, that their powers will, of course, vary in different states, according to the differing grants of powers to them in such states. And the course of judicial decision in this state holds them to the strictest limitations of their powers. As clearly put, in Howe v. State, 53 Miss., 69: “It matters not whether its action : . . be regarded as judicial, legislative, or ministerial. Excess of authority in either capacity is simply void. They can do valid acts only as empowered by law. ’ ’ It was held in West Carroll v. Gaddis, 34 La. Ann., 928, that ‘c property donated to a parish, in fee simple, for its use and benefit, and upon which a courthouse was built and used, cannot be legally sold under a police jury ordinance, although, the parish seat being changed, the building was abandoned, and threatened going to ruin; that such sale, having been made without legislative authority, is a nullity, and conveyed no title; and that, in such case, the defendants are entitled to reimbursement of the purchase money, as a condition precedent to the recovery of possession of the land by the plaintiff.” This case is directly in point, and decisive of this controversy. The opinion of the court, by Bermudez, C. J., is so felicitously clear and accurate that we quote — to adopt' — the following, as applicable to our boards of supervisors: ‘ ‘ Parishes, like counties in other states, are involuntary political or civil divisions of the state, designed to aid in the administration of government, as state auxiliaries or functionaries, possessing no other powers than those delegated, ranking low down in the scale of corporate existence, and well distinguishable from municipal corporations proper, which are invested with more ex tensive powers, and endowed with more important functions, and a larger measure of corporate life. As a rule, they cannot acquire real estate unless for public utility, and cannot dispose of the same after it has been acquired and devoted to public service without legislative authority. They may, however, be objects of public or private bounty, in the absence of disabling or restraining statutes. They do not acquire for themselves as a political organization. They acquire for the benefit of the public — the people — ¡particularly the local community, which is represented primarily by the state and secondarily by them, but so far only as the state has delegated to them the power to do so. As state auxiliaries, they cannot dispose of public property, unless with formal sanction of the state, and even then in those cases only in which the state, violating no trust and no contract, and infringing the rights of no one, could herself legally act. Creatures they are wholly dependent upon and controlled by their creator. They have no life, no attribute, no power, no rights, no obligation, but such as have been conferred or imposed on them. ’ ’

The court clearly shows (at page 933) the distinction between .the powers of quasi corporations, like boards of supervisors and municipal corporations proper., in the disposition of property. To the same effect, strongly emphasizing the doctrine, are Com. v. Rush, 14 Pa. St., 186; City of Alton v. Illinois Tramp. Co., 52 Am. Dec., 479, and notes at pages 486, 487.

We are clearly of the opinion, therefore, that the deed of the board-of supervisors to the board of trustees of the presbytery, of date September 4, 1883, and the similar deed, between same parties,, of date May 28, 1885, and all the other deeds set out in the bill of complaint, are null and void, and, as such, should be canceled as clouds upon the title of the county; and, the complainants having tendered with their bill the $100 purchase money received by the county—

The decree is reversed, the demurrer overruled, and the cause remanded.