Warren County v. Nall

78 Miss. 726

Opinion

Thompson, Sp. J.,

delivered the opinion of the court.

This case is an appeal from the chancery court, first district, of Hinds county. As the pleadings were primarily framed, Warren county was the complainant, and Nall, land commissioner, the representative of the state, and one Metzger, were defendants. Before the trial in the chancery court, by agreement of the parties, Metzger was treated, and is to be treated by us, as a complainant.

It is claimed in the bill that the lands in controversy were acquired by Warren county from the state under a grant made by the legislature in 1852; that the. particular land in controversy, or most of it, was sold by the county to Metzger a short while before the filing of the bill, the county retaining a lien on the land for the purchase money, a large part of which is yet unpaid; that by act of the legislature in 1876 the lands were excised from Warren county and put in Issaquena county; that they were exempt from taxation, but that, ignoring the exemption, they were sold for taxes by the tax collector of Issaquena county in 1890, and purchased by the state at the tax sale. It is further charged that the state, through the land commissioner, is asserting title to the lands, offering them for sale, etc.; and the bill seeks to have the title adjudged in Metzger, subject to the county’s lien as to most of the lands at least, if not all of them. It is difficult to tell from the record whether Metzger purchased all the lands in suit from the county, but the agreement that Metzger shall be treated as a complainant and appellant, has relieved us from the necessity of adjuding that fact; and the bill further sought the cancellation of the state’s claim as a cloud on the real title asserted to be in complainants. To this bill the state, through the land commissioner, demurred, contending (1) that the grant of 1852 was utterly void on its face, for uncertainty as to what lands were intended to be granted; (2) that, if the grant be held valid, it only invested the county with title for a governmental purpose, to wit, the erection and maintenance of levees, and that the act under which the county held was repealed, by implication, in 1858, when the state inaugurated a general levee system, and by further acts in furtherance of said system; (3) that, if the lands were not taken away from Warren county .by the levee acts, they ceased to belong to that county when they were excised from its territory and placed in the county of Issaquena; (4) that the lands, if they had not ceased before to belong to Warren county, were, after being placed in Issaquena, no longer exempt from taxation, and the state acquired title at the tax sale. The court below resolved some one or more of these questions against the complainants. It sustained the demurrer and dismissed the bill, and complainants, Warren county and Metzger, have appealed, and all of said questions were argued before and presented to this court and are now to be determined by us.

The principal question in this case requires us to construe an act of the legislature, approved October 19, 1852 (laws called session 1852, pp. 94, 95), entitled “An act to aid the construction of levees in Warren county, and for other purposes,” and which act is in these words:

“ Section 1. Be it enacted by the legislature of the stade of Mississippi, That so much of the land granted by congress to the State of Mississippi by an act to enable the State of Arkansas and other states to reclaim the swamp lands within their limits, approved September 28, 1850, as lies in Warran county between the Mississippi river and the hills, be, and the same are hereby, ceded to the said county of Warren, for the purpose of constructing, repairing and keeping up the levees in that county, and the board of police of said county may, and they are hereby authorized to, sell and dispose of said land in such manner and in such quantities as they may deem best calculated to accomplish the object aforesaid, and make good and valid titles thereto, the deeds to be executed by the president, under the order of the board; but the board of police of said county shall not sell or dispose of any portion of said land for any other object or purpose than for constructing, repairing or keeping-up the levees in said county; Provided, Said county shall not have or sell more than fifty thousand acres under the provisions ■of this act.

“Sec. 2. Be it further enacted, That this act take effect and be in force from and after its passage.

“Sec. 3. Be it further enacted, That the provisions of the above sections be, and they aro hereby, extended to the county of Adams, so as to include such swamp lands in the county of Adams as are included in the grant of swamp lands to this ■state, and not granted to the commissioners of the Homochitto river, for the purpose of constructing a levee from Ellis’ cliffs, ■on the Mississippi river, to the mouth of Buffalo bayou, and the said swamp lands are hereby granted for said purposes to the board of police of Adams county.”

It is an admitted fact that there were more than 50,000 acres of land (about 56,000) within the description given in the first section of the act, and it is contended for the appellee that by reason of the proviso thereto the entire first section of the statute is wholly void, and the cession to Warren county inoperative. It is also an admitted fact that the board of police of Warren county and the board of supervisors thereof — the latter board being the successor of the former — since the passage of this act, more than forty-eight years ago, have exercised at various dates during the long number of years mentioned, the powers conferred upon them, and that the governor of the state in 1857 (forty-four years ago) executed, under the great S9al of the state, patents purporting to convey the lands here involved to the said county; but these acts by the county authorities are sought to be treated as utterly void because of the assumed invalidity of the statute above quoted, and the patents are claimed to be ineffectual to invest title, because no express legislative authorization for their issuance by the governor can be found. Is the act making the cession to Warren county void on its face for uncertainty ? Is it void because it purports to convey a determinative number of acres (50,000) out of a larger quantity, without any further terms of definition or identification % That is the question. It must not be overlooked that the act, were there no proviso embodied in it (and from the proviso,alone the difficulties of construction arise), was-in no proper sense a donation to the county. The legislative history of the swamp and overflowed lands granted by congress to the several states September 28, 1850, carries conviction to our minds that the act under consideration was an effort by the legislature of the state to work out the improvement scheme-inaugurated by congress, to which the swamp and overflowed lands were devoted, and to which the state had in good faith pledged itself. We do not think, therefore, that all the rules-to be found in the books for the construction of governmental gifts should be applied in their strictness to the legislative grant under consideration. Nor do we think that the validity of a. legislative act depends in any degree on its containing the technical terms used in ordinary conveyances of lands. We believe that the true rule applicable to the question before us requires the court to sustain this legislative grant, if it can be reasonably done. The rule should be observed, especially, we-think, in a case like this, where the state itself received the land from the general government, pledging its faith that it or its proceeds should be devoted to the accomplishment of a public purpose, the grant under consideration being a manifest effort to keep that faith and appropriate the land to the accomplishment of the purpose for which it was designed by congress. And this rule of construction should, we think, be most liberally applied in a case, also, like this, where to wholly condemn the grant would be suggestive of a violation by the state itself of its integrity and honor, or at least be seemingly to stultify itself, and where to annul the grant would be to reverse contemporaneous construction of the act by the county authorities and the chief executive of the state, fully acquiesced in' by the legislature for nearly a half century. We must sustain the grant here involved, or we must adjudge that the legislature-of the state in 1852 enacted a solemn farce. To declare an act of the legislative department of the government void because violative of the constitution has frequently been declared to be the most serious of the duties imposed by law on the j udieiary, and we are warned by the highest authority that it should never be done when there is some other ground upon which the litigation can be rested, and it should be done only when the rights of a party to a suit require it. It is equally as serious a matter for a court to adjudge an act of the legislature void on the assertion that, or because, its terms are so contradictory as to destroy it and deprive it of all meaning and effect. It should not be done if there be any reasonable way of escape from so doing.

With a desire, therefore, to give the act under consideration some effect, if it can be reasonably done, let us examine its terms. It must be presumed that the legislature intended to accomplish something. It must have meant to devote at least some portion of the swamp and overflowed lands in Warren county for the purpose of constructing, repairing and keeping up the levees in that county. If it did not mean to do that, it did not mean anything. Unquestionably that part of the first section of the act which precedes the proviso contemplated what we have just stated as the necessary meaning of the entire section, if any meaiiing whatever can be given it as a whole.

What, then, is the meaning of the proviso, “said county shall not have or sell more than 50,000 acres under the provisions of this act ? ’ ’ • In considering this, let us first determine to what the proviso is applicable. A careful reading of the section and the proviso leads us to conclude that the proviso is simply and only a limitation upon the quantity of land to pass by the grant. It is not a proviso to or limitation on the power of the board of police, conferred by the first section, “ to sell and dispose of the said lands [that granted] . . . and to make good and valid titles thereto. ’ ’ A simple transposition of the proviso, so as to place it just following that part of the section upon which it is a limitation, will aid, we think, in the construction of the act.' We then have the act thus: “So much of the land . ■ . . [granted to the state by congress September, 1850] as lies in Warren county, between the Mississippi river and the hills, be, and the same is hereby, ceded to the said county of Warren; . . . Provided, Said county shall not have or sell more than 50,000 acres under the provisions of this act; and the board of police of said county may, and they are hereby authorized to, sell and dispose of said lands in such manner and in such quantities as they may deem best calculated to accomplish the objects aforesaid, and to make good and valid titles thereto, . . . but the board of police of said county shall not sell or dispose of any portion of said land for any other object or purpose than for constructing, repairing or keeping up the levees in said county.” We think the canons of construction authorize this transposition of the act, and we think by so doing its real meaning is brought out with some degree of distinctness. Our observation of legislative proceedings leads us to believe that the proviso was, most likely, introduced by way of an amendment to the original of section 1, and that the proviso had no other purpose than to limit the quantity of land to be passed by the grant. So, transposing the proviso and reading the section, it is the exact equivalent of a grant of 50,000 acres of land out of the entire area, with power in the board of police to sell and dispose thereof — that is, of the 50,000 acres — in such manner and in such quantities as the board might deem best, and to make good and valid title thereto.

We are strengthened in our conclusion that the proviso to the first section of the act is alone a limitation on the quantity of land granted, and in no way impairs the powers of the board of police to sell and make valid deeds to the land, by a consideration of the third section. That section extends the provisions of the first section (meaning, of course, the powers and rights of the board of police) to Adams county, and it defines the lands in that county to which the powers are to be applica ble with legal certainty. Certainly the board of police of Warren county, the whole act considered, had as great power over the 50,000 acres in that county as the Adams county board had over the lands mentioned in the third section of the act. We think that the legislature by the act under consideration meant to give the county of Warren the right to sell and make good and valid titles to 50,000 acres of the lands granted to the state by congress September 28, 1850, located in said county between the Mississippi river and the hills, and that the right to sell and make titles by necessary implication. invested the county with the right of selection. It must be remembered that the entire body of land was dedicated to the purposes mentioned in the act, as well as the 50,000 acres. The construction of levees in Warren county was in the line of carrying out that purpose. The legislature, by the act of 1852, practically said to the board of police of the county, “You may sell and dispose of 50,000 acres of said land, and you are authorized to make good titles thereto, the proceeds to be used in furtherance of the purpose to which the land is already pledged.” In such case the right to sell and convey must be held to have given the right of selection. The right to sell implies the right to find a purchaser, and under the grant, as we construe it,1 the board of police or supervisors could sell any'portion of .'the area within the description of the act for which a purchaser could be found, and this right continues until 50,000 acres are sold. Then the grant will be exhaused. W e think it likely that the inability of the legislature to determine what parts of the greater area could be most readily and promptly sold, coupled with a desire to speedily construct the levees, w7as influential in giving the form to the act in which it was passed, and we believe that it was intended to, and that the act did, invest the county authorities with the right of selection.

Governmental grants of a defined quantity of land within a larger area have frequently been upheld by the courts. Sometimes questions have arisen as to when the title passed to the grantee, whether at the time of the grant or upon selection; sometimes as to how and by whom selection was to be made, and sometimes between the grantee and subsequent purchasers from the government of lands within the larger area, and much learning is to be found in the books in respect to these questions. It is unnecessary for us to consider them, since the rights and powers conferred by the act of 1852 are continuing, and the sale by the county authorities of Warren county to Metzger, said sale and all previous Ones not embracing 50,000 acres of land, passed the title, and the state was thereafter without any claim thereto.

We find it unnecessary to decide whether or not, before sale by the county, it was in the power of the legislature to revoke the grant and select some other agency than the board of police or supervisors of Warren county for carrying its purpose into execution; nor are we now concerned with the right of the legislature to dispose of such of the lands, if any, as have never been sold by the county authorities. In our judgment, the legislature has never expressly or by implication repealed the act of 1852. No one of the levee laws, nor all of them combined, has or have this‘effect.

We do not think that the excision of the lands involved in this suit from Warren county and placing them in Issaquena county in any way affected the rights of Warren county. The sale of the lands for taxes by the tax collector of Issaquena county was void. The land belonging to the county was exempt from taxation, whether situate within or without the limits of the county owning the same. Code 1880, §468. The words of said section declaring that the £ £ property, real or personal, belonging to the United States, or this state, or to any county or incorporated city or town within the same, ’ ’ etc., shall be exempt from taxation, includes the lands of a county located in another county of the state. The terms, £ ‘ within the same,5 ’ in the phrase above quoted, relate to the location of the county, city or town, and not to that of the property. This meaning is brought out perhaps more distinctly in the code of 1892, § 3744, par. (c), which exempts from taxation ; ‘ all property, real or personal, belonging to this state, or any county or municipal corporation thereof,” but the exemption is as broad under the one code as the other.

Reversed and remanded, with lea/ne to defendant to answer the bill within sixty days after the filing of the mandate in the court below.