Nugent v. Board of Mississippi Levee Commissioners

58 Miss. 197

• Court: Mississippi Supreme Court
• Decided: October 15, 1880
• Status: Published

Opinion

George, J.,

delivered the opinion of the court. ■

The plaintiffs in error were joint owners of two plantations situated in Bolivar County, and near the Mississippi River, and they brought this action in the court below against the defendant in error to recover damages which they sustained by the overflow of said plantations in the years 1872, 1874, and 1876. A demurrer was sustained to the declaration, on the ground that the defendant was not liable for the damages, and the plaintiffs sued out this writ of error.

The declaration sets out the ownership of the two plantations by the plaintiffs and describes their location, and avers that they are “ dependent for their protection from the overflow of the Mississippi River, and their successful cultivation as well as their value, upon the levee” extending along the bank of the Mississippi from Tick’s front to Stormville, and “ without such levee would be of very little value.” The declaration then sets out the incorporation of the commissioners by the act of November 27, 1865, and various provisions of that act, averring that by its terms it was the duty of the defendants-to rebuild, strengthen, or elevate the old levees on the liver, or make new ones where they should deem it necessary ; and that they were empowered to employ all engineers and agents necessary for the work, and to determine the height, slope, and base of the levee, and to make all needful regulations and do all acts necessary, in their opinion, to secure the counties of Washington, Bolivar, and Issaquena, under their charge, from overflow by water from the Mississippi River. It also sets out the provisions of the act levying ten cents an acre tax on all the lands in said counties, and one cent per pound on all lint cotton raised and gathered in the same, whereby an “ annual revenue to a very large amount, to wit, the sum of $300,000, was provided bjr said act for said defendants to enable them to carry out efficiently and thoroughly the objects of their incorporation, and said revenue annually came into their hands.” And it is further averred, “that, during the years' 1869 and 1870 it became the duty of said defendants to make a new levee from Vick’s front to Stormville, in such manner and of such base, height, slope, and size as to protect plaintiffs’ plantations aforesaid from overflow during seasons of high water, and to exercise due care, caution, diligence, and discretion in and about the same.” And it is averred, as a breach of this duty, “ that the defendants so carelessly, negligently, uuscientificalhy, and recklessly constructed said levee that during the years 1872, 1874, and 1876, the levee, because of the lack of a proper muclc-ditch, and other defects, gave way before the pressure of high-water against it, whereby plaintiffs’ plantations were inundated, their stock and fences destro_yed, crops ruined, and land severely injured.” The damages claimed are $30,000.

It is necessary to inquire into the nature of the corporation sued in this action, and its purposes and powers. The act (Sess. Laws 1865, chap. 1) appoints six named persons (two residing in each of the counties of Bolivar, Washington, and Issaquena) as levee commissioners, each for the county in which he resides. It declares “they shall hold office until the first Monday in January,’ 1868, and until their successors in office are elected and qualified; ” that the commissioners thus appointed shall constitute and are hereby made a body politic and corporate, by the name of “ The Board of Levee Commissioners for the Counties of Bolivar, Washington, and Issaquena,” and by that name may sue and be sued, and have perpetual succession for the term of twelve years.” They are empowered to .have a common seal, and to make bylaws, not inconsistent with the charter and laws of this State, for the purpose of carrying into effect the purposes of the corporation, and to appoint all officers and agents whom they may deem necessary, and to do all other acts, not inconsistent with the laws of the State, which may be proper to carry ont and effect the purposes and objects of the act. The Boards of Police of the three named counties were required to meet on the first Monday in January, a. d. 1868, and every two years thereafter, and elect two commissioners for each county, “ to hold their term of office for two years, and until their successors were duly elected and qualified.” Said Boards •of Police were required to fill vacancies as often as they might happen. By the third section of the act it was declared that the said Board of Levee Commissioners should have the power, and it was made their duty, to rebuild, strengthen, and elevate old levees-or make new ones ; that they should have power to employ all engineers .and agents necessary for the work; determine the base, height, and slope of levees ; abandon old levees deemed by them unsafe, and make new ones, and to make all useful regulations and do all acts necessary, in their opinion, to secure the counties under their charge from overflow. Sect. 4 provided that, “ for the purpose of building, repairing, and constructing the levees aforesaid, and for carrying into effect the objects and purposes of securing the counties of Bolivar, Washington, and Issaquena from overflow by the Mississippi River,” there should be levied a uniform tax of ten cents an acre each year on all lands in said counties. By sect. 5 a tax of one cent per pound on all lint cotton grown and gathered in said counties was also levied for the same purpose. A president, secretary, and treasurer of the board were also provided for; and the board was empowered to issue bonds to the amount of §1,000,000 in order to raise money for building and repairing the levees. The board was required to meet at least twice-a year, at the county-seat of Washington County, on the second Mondays in April and October, and each commissioner attending was allowed $4 per diem and six cents a mile for each mile travelled in attending said meeting. The board was required to appoint levee inspectors in each county, and their duties were prescribed ; among which was the duty to examine the levees three times a -week during high water, “ and upon emergency and danger to the said levees, of which each inspector shall be the exclusive judge, he is authorized to call out all male persons over sixteen and under sixty years of age residing within ten miles of the work.” Provisión was made for punishing persons so named who refused to attend, and for compensation for work thus done. Provision was also made for condemning lands on which to construct the levees ; and it was made a felony to cut or injure the levees. Stringent provisions were enacted for the collection of the taxes by the sheriff and auditor of public accounts.' And by sect. 24 it was provided that if it shall appear to the Board of Levee Commissioners that the- proceeds of the' taxes therein levied and assessed will exceed the amount necessary to pay off and discharge the bonds, and interest, issued under the act, and also all other indebtedness and liabilities that maybe incurred by said board under the provisions of the same, the board might suspend and reduce in part the collection of the tax.

By :in act passed April 4, 1877 (Sess. Laws, p. 223), the corporate existence of the board was exteuded to fifteen years from the 1st of January of that year, and each member of the board was required to enter into bond, payable to the State, in the penalty of $20,000, “ conditioned for the faithful performance of the duties of his office.” By another act, passed January 27, 1877, the name of the corporation was changed to “The Board of Mississippi Levee Commissioners,” and an additional specific tax was levied.

Such are substantially the provisions of the several acts creating and continuing the board, so far as they affect the questions involved in this case. From them it is manifest that the corporation' is a'public one, the commissioners- being public officers, bound to discharge their duties by bonds given to the State; that it had charge alone of public interests ; and that it was created and set in operation solely by the will of the Legislature, without reference to the will of the people of the district over which its jurisdiction extended. The work for which it was constituted ivas one of public concern; so much so that it is deemed to be of that degree of national importance which demands the interposition of the general government, both as to the means and the manner of its accomplishment. The funds to be employed by it result from •a tax levied directly by the Legislature, without the consent of the tax-payers or of the corporation. It has no stockholders, no members even, except the commissioners charged with the duties prescribed by the act, who were selected in the first instance by the Legislature, and then by an agency prescribed by that body, to wit, the Boards of Supervisors of the several counties comprising the levee district. It has no property, and no rights which enure to it solely in its corporate capacity. It can make no gains either for its members, its own benefit, or the public. It can levy no tolls, and its work, when accomplished, is incapable of individual use. Its sole revenue consists of taxes levied by the Legislature, to be •expended solely in the performance of the public duty of protecting the district from overflow. If there were a recovery in ■this action, there could be no satisfaction of the judgment except by a seizure of a fund devoted by law to another purpose. This fund is also raised by a specific tax — a mode of taxation authorized by the Constitution only for the erection of works of this character; and this stamps it essentially as a trust fund devoted exclusively to the work provided for.

We do not think the action can be maintained. “A distinction is made between those corporations which are endowed with special grants of power for the peculiar convenience and benefit of the corporation, on the one hand, and the incorporated inhabitants of a district, who are by statute invested with particular powers, without their consent, on the other. On the latter the State may impose corporate duties and compel their performance, under penalties; but corporators who' are made such whether they will or no cannot be considered in the light of persons who have voluntarily, and for a consideration, assumed obligations so as to owe a duty to every person interested in their performance.” Cooley’s Const. Lim. 247. There is more reason for holding the taxpayers of this district not liable, in this case, than for holding the latter class above described by Cooley exempt from corporate liability ; for in this case it is clear that the Legislature intended merely to create a State agency — that the commissioners are in fact public, not corporate officers, endowed with a corporate being only for tbe convenience of administering a public trust confided to them. The State has defined this trust and its attendant duties, — the building and repairing of the levees, — and has furnished the means of performance — the tax fixed by the Legislature. The corporation has merely administrative duties to perform — a work prescribed by the Legislature, and with means furnished by the Legislature. This fund the commissioners may bind by acts done in pursuance of law, and to the extent allowed by law. Any other disposition of it would be a violation of law, and therefore void. Their inability to divert the fundís total. It cannot be removed or lessened by the commission of a wrong to another. Whoever has been injured by their wrongful act must look alone to the wrong-doer for redress, not to innocent tax-payers whose funds have been committed to the charge of the commissioners.

It is insisted, However, that, under the decisions of some English and American courts, the corporate funds are liable for the neglect of the commissioners in building the levee with a defect which has occasioned damage. We have examined maivy cases in England and in the United States on this subject, and wo find that they are irreconcilable, and some of them seem to be decided on improper principles.

As early as 1701, in Lane v. Cotton, 1 Ld. Raym. 646, it was decided that a public officer was not responsible for the acts of another whom he ivas compelled to employ. This case was afterward affirmed in Whitfield v. Le Despencer, Cowp. 760, Lord Mansfield delivering the opinion of the court. This principle was afterwards applied in exoneration of persons undertaking gratuitously to do a work for the public, if they acted bona fide. See Sutton v. Clark, 6 Taun. 29 ; Holliday v. St. Leonard’s Shoreditch, 11 C. B. (n. s.) 192; Coe v. Wise, 5 Best & S. 440; Hall v. Smith, 2 Bing; 156. But in exonerating such persons from liability for the omissions, negligence, and misconduct of those whom they were compelled to employ, it was admitted that they were liable for their own miscouduct. When, afterwards, such persons acting gratuitously were clothed with a corporate character, this principle was applied exactly as if they were individuals. And when they were sued in their corporate capacity, the inquiry began to be made whether the injury for which they were pursued was the fault of their employees or of themselves personally ; and the principle of their individual liability was applied so as to make them liable as a corporation. Whitehouse v. Fellowes, 10 C. B. (n. s.) 765 ; Ruck v. Williams, 3 Hurl. & N. 305.

The vice of this reasoning consists in regarding the commissioners, or executive body of the corporation, as being the same as the rate-payers whose funds -were to be applied to make good the damages occasioned by the personal fault of the managers. It would have been more logical to have held that, as the commissioners could only be held personally answerable for their individual misconduct, so the rate-payers would be answerable only for misconduct directly traceable to them. This obviously just view was attempted to be met by assuming that the commissioners were the representatives of the ratepa3rers. Thus, Lord Campbell, in Southampton and Itchin Bridge Company v. Southampton Local Board, 8 El. & Bl. 801, in answer to the objection that a recovery against the corporation would be a great hardship to the rate-payers, who would thus be compelled to pay for the neglect and blunders of the board of commissioners, said that the objection ivas met by the consideration that the members of the board are elected by the rate-payers, and are, therefore, their representatives.

In this case the}' are not representatives, even on Lord Campbell’s theory, which derived their representative character from an election by the rate-payers ; for here they are selected without the agenc}’ of those who contribute to the fund. But we desire to put the case on a stronger and broader ground. The Levee Commissioners are simply public officers clothed with a corporate capacity solely for the convenience of administration, and are endowed with no representative character as respects the tax-payers : and if they had such character, it would be strictly limited to those duties which by law the}'- were authorized to perform.

Justice Mellor, in Coe v. Wise, 5 Best & S. 440, undertook to make a classification of the cases by which the individual and corporate liability of such bodies was to be determined. He said: “The cases on this subject are not easily reconcilable, but those which establish the liability of trustees or commissioners acting gratuitously in the execution of a public trust may be classed as follows: Firstly, cases of indiyidual liability,- where trustees or commissioners have exceeded or abused their powers. Secondly, cases in which the duty or obligation imposed on such trustees or commissioners has been violated by reason of directions or- orders given by them for the doing of the very acts from which damage to others has resulted. Third!}’-, cases of commissioners, trustees, or corporations authorized to construct or maintain works for trading, or the like profitable purposes, — such as dock trustees, corporations acting as proprietors of gas or water-works, and the like, —in which cases, although they may act without reward, yet the object of their incorporation or constitution is to make or maintain works yielding profitable returns, either by tolls and dues or payment for services rendered, and in their very nature are mere substitutions on a large scale for individual enterprise.”

In this third class the learned judge thought the liability of the corporate funds should be allowed to the extent that they were derived from the tolls received and gains made in the use of their works by the public; that, as they were carried on for gain, and were-substitutions for individual enterprise, they should, like individuals, be held liable in damages to those who used the works and contributed to their funds. The learned judge distinguished the case before him from this class, stating that “ the commissioners here are authorized, for public objects, to erect and maintain great works of drainage and navigation. They derive no other profit from the execution and maintenance of the works than a share in the beneficial results anticipated therefrom. The funds for their construction and maintenance are raised by rates imposed upon the district supposed to be benefited thereby; but no business is authorized to be carried on for profit, nor are any tolls authorized to be taken for any use of the works. The object is public, though the direct benefit is local. * * * The commissioners have no property except such as is strictly incident to the machinery for making and maintaining the works and raising the necessary rates, and have no power to levy a rate-for any other purpose.” It will be perceived at once how strictly analogous that case is to the one now before us, and how just the observations of the learned judge are, as applicable to this case. It is said, however, that the law has been finally settled in England the other way by the leading casé of Mersey Docks v. Gibbs, 11 H. L. Cas. 686, decided in 1866. There are many expressions in the opinion of Justice Blackburn which are inconsistent with-Coe v. Wise, in which case he sat, and dissented. But a careful reading of the opinion will show that the decision turns upon the fact that the trustees were a trading corporation, receiving tolls for the use of the docks, and that therefore they ought to be held to the same liability as individuals doing the same work and receiving pay for it; and, in fact, he bases the decision mainly upon Parnaby v. Lancaster Canal Company, 8 Ad. & E. 230, in which a private corporation was held liable for a failure-to repair its canal. Lord Chancellor Cranworth’s opinion in Mersey Docks v. Gibbs put the liability of the trustees also on the principles settled in the case of Parnaby v. Lancaster Canal Company, affirmed on error, in 11 Ad. & E. 223, and said : “ The only difference between that case and the one now before us is, that here the appellants, in whom the docks are vested, do not collect tolls for their own profit, but merely as trustees for the benefit of the public. I do not, however, think that this makes any difference in principle in respect to their liability. It would be a strange distinction to persons coming with their ships to different ports of this country that in some ports, if they sustain damage by the negligence of those who have the management of the docks, they will bev entitled to compensation, and in others they will not; such a distinction arising, not from any visible difference in the docks themselves, but from some municipal difference in the constitution of the bodies by which the docks are managed.” The cases of Winch v. Conservators of the Thames, L. R. 9 C. P. 388, decided in 1874, and Forbes v. Lee Conservancy Board, L. R. 4 Exch. Div. 116, decided in 1879, construe Mersey Docks v. Gibbs as having been decided on the principles above stated.

But the extension of the rule thus far was resisted in England by many eminent judges. In Mersey Docks v. Gibbs, Lord Wensleydale agreed to the judgment expressly on the ground of authority, stating if the matter were res integra he would hold that the trustees were public officers, and not responsible for the negligence of their empernes. Duncan v. Findlater, 6 Cl. & Fin. 914 ; Baker v. Harris, 4 Mau. & Sel. 26 ; Humphreys v. Mears, 1 Man. & R. 187 ; Hall v. Smith, 2 Bing. 156 ; British Cast-Plate Co. v. Meredith, 4 Term Rep. 794 ; Sutton v. Clarke, 6 Taun. 29 ; Coe v. Wise, 5 Best & S. 440 ; Feoffees of Heriot’s Hospital v. Ross, 12 Cl. & Fin. 506 ; Metcalf v. Heatherington, 11 Exch. 257 ; Holliday v. St. Leonard’s Shoreditch, 11 C. B. (n. s.) 192, all announce principles more or less at variance with those recognized in Mersey Docks v. Gibbs.

The difficulty has been to reconcile the taking of a fund donated or raised by taxation for a specific purpose, and appropriating it to the payment of damages arising from the wrongful acts of its managers, with the just rights of the donors or. tax-payers. In Duncan v. Findlater, supra, Lord Cottingham said: “It is impossible to suppose that the framers of the statute [making the corporation] contemplated that any of the funds would be appropriated for the purpose of affording compensation for any act of the persons who might be employed under the authority of the trustees. * * * If the thing done is not within the statute, either from the party having exceeded the powers conferred by the statute, or from the manner in which he has thought fit to perform the work, why should the public fund be liable to make good his private error or misconduct?” And in Feoffees of Heriot’s Hospital v. Ross, 12 Cl. & Fin. 506, the same learned judge reiterated what he said in Duncan v. Findlater; and Lord Campbell used this strong language: “The case of Duncan, v. Findlater gave universal satisfaction, and the mistaken practice which it overthrew has been universal^ scouted am] he said of the opposite view, that “ it was contrary to reason, sense, and justice, and wholly unsupported by authority.”

In the United States we find but two cases on this precise principle. In one, Glavin v. Rhode Island Hospital, 9 Cent. L. J. 329, the principle of Mersey Docks v. Gibbs was applied so as to make the funds of a charity hospital, raised by donations, liable for the negligence of its employees in treating a patient; in the other, McDonald v. Massachusetts General Hospital, 120 Mass. 437, the contrary conclusion was reached. But the general principle that absolves from liability the tax-payers whose funds constitute the treasury of the public corporation established as a State agency, and without their consent, has full recognition in American jurisprudence (see Cooley’s Const. Lim. 247), and received the sanction of the High Court of Errors and Appeals in Sutton et al. v. Board of Police, 41 Miss. 236, and in Chandler v. Bay St. Louis, 57 Miss. 826. In this last case it is said: “ It is not possible for the officers of a municipal corporation to impose any liability upon the constituent body by their crimes and ■torts, even when committed colore officii, unless expressly authorized or subsequently ratified, or done in pursuance of some general authority on the subject-matter of their action. They may by such acts make themselves personally liable, but they impose no obligations on the public.”

In all the cases on the subject of the liability of these corporations, it is admitted that the liability in each case depends on the true construction of the statute creating the corporation. The difference in the cases seems to be in the mode of arriving at the intention of the Legislature. In some it is held that the liability arises from the constitution of the body and the business it is charged with, if there be no restrictive language ; in others it is said there ought to be an express provision for liability before it can attach. In this case the meaning of the act seems to be clear. The tax is levied, as expressed in the statute, “for the purpose of repairing and constructing the levees, and for carrying into effect the object and purpose of securing the counties of Bolivar, Washington, and Issaquena from overflow from the Mississippi Liver.” This does not include the very different object of paying damages for the default and misconduct of the persons charged with the execution of the act. This expression of the purpose of the tax in the act is an exclusion of all other purposes. If such damages were chargeable on the fund, their payment might prevent the accomplishment of the purpose for which the tax was levied. The whole fund might be consumed in compensating landowners for a failure to receive that protection from the levees which they were designed to afford. The taxes levied, instead of being a fund for securing this protection, would be converted, as was said by Lord Mansfield in an analogous case, into the capital of an insurance company to indemnify against losses from floods. The tax-payers would becom'e insurers against damages, instead of contributors to a fund to be used in preventing the recurrence of damages. To entail so alarming a liability on property-holders without their free consent ought to require a very plain expression of the legislative will, if indeed there be any power in a free government thus to deal with the property and business of the people. That a taxpayer living in the district should, on account of the negligence or misconduct of the persons administering the powers of the corporation, or their agents or employees, fail to receive the protection from overflow to secure which he was taxed, is indeed a hardship ; but we are not authorized to remove this hardship by the imposition of a burden on his co-sufferers. He must be left to his remedy against those by whose misconduct he was injured, whose liability for their own acts and omissions is to be determined by the rules of law applicable to such cases.

Judgment is affirmed.