Ballard v. Davis, 31 Miss. 525

Ballard v. Davis

31 Miss. 525 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

The complainant filed his bill in the Superior Court of Chancery, to enjoin the sheriff of Warren county from proceeding to collect a certain tax, assessed by the board of police of said county, on the lands of the complainant; and to enjoin the other defendants from constructing a levee upon said lands.

It appears that an act of the legislature was approved on the 23d day of February, 1846, declaring that levees should be constructed wherever necessary, on the bank of the Mississippi river, in said county, at the cost of the riparian proprietors of the soil. That the Board of Police, under another provision of this act, on the 16th day of March, 1846, appointed the defendants, Ballard, Henderson and Adams, levee inspectors; that by another provision *535of the law, it was made the duty of these inspectors to designate the lands necessary to levee, to lay out the line of the levee, to estimate the probable costs thereof, and to report the amount to the president of the Board of Police, who was required, thereupon, to convene the said board, “which, when so convened, should assess a tax on the said land, upon which a levee was necessary, for the requisite amount to construct the same, to be called a levee tax,” &c. It further appears, that the inspectors having qualified as required by tjie third section of the act, Ballard and Henderson entered upon the discharge of their duties, and designated the complainant’s lands, among others, as lands necessary to be leveed. It also appears that these two inspectors having made their report, which was required to be entered of record in the proceedings of the Board of Police, the board being convened as required by the act, assessed a tax upon the complainant’s lands, for a sum exceeding §>2000; to restrain the collection of which was one, and indeed the main object of this bill.

It appears that Adams took but little part in making the proper examination of the lands; but it is- said that he has conversed freely with the other two inspectors, and learning from them the manner in which their duties had been performed, he approves and ratifies their acts, as also their report, although his name does not appear to it.

The question arising for consideration on this state of the case is, whether the examination and designation of the lands by two of the three inspectors, must be regarded as a substantial compliance with the law. The jurisdiction exercised by the Board of Police, whatever it was, was derived exclusively from the statute under which they acted. There was nothing either in the nature of the subject, or in the application to be made of the money, which could bring their action within that general and sweeping clause of the Constitution which vests in the Board jurisdiction over “ all other matters of county police,” for the plain reason, that the sole object of the levee was to protect private property, and the money, when realized, was intended to be applied solely to this object, and not to any object in which the public had an interest. It was a contribution which an owner of land was required to make for the pro*536tection of himself; the necessity of such protection not to be judged of by the party directly interested, but to be submitted to the judgment of others, whose decision was at least to be the foundation of the tax assessed by the Board of Police. The jurisdiction of the Board of Police being then special, could only be exercised when the condition precedent had been performed, to wit, when the three levee inspectors had designated and reported the complainant’s lands as necessary to be leveed. Perhaps, if all the inspectors had acted together, and all could not agree in their report, or as the result of their judgment, the majority might control the minority. But even this might be questioned under this law, which must be strictly construed, not only because it is throughout one of great rigor, but because the jurisdiction created for the administration of the law is special, and may be exercised in a summary and oppressive manner. The question is, was the party to be bound upon the judgment of two, or of three men ? The law has not said that, in designating the lands, a majority should have power to conclude the minority; yet, when it comes to speak of repairing levees, a majority, and sometimes even one inspector, is authorized to act. The reason is manifest; the danger arising from the breaking of a levee may net admit of delay; prompt action may be absolutely necessary. But in regard to the construction of the levee, the proper examination of the land, &c., and from which aetion the pecuniary liability of a party is to arise, the law contemplated deliberate action. No haste was necessary ; ample time was allowed for the judgment of all to act, and for an examination by all to be made. The action of all would, therefore, seem to have been contemplated. The action of two, or the report of two of three inspectors, cannot be treated as the report of all, or of such number as the law required. The law only required the party to surrender his own judgment, and be bound in a pecuniary obligation upon the judgment of others, upon condition that the three inspectors all concurred in selecting the complainant’s lands as necessary to be leveed. All obligations, the performance of which is claimed, either arise from the party’s own consent, or from some duty which the law requires him to perform; or, in other words, the obligation must either be of the party’s own *537creation, or forced upon him by the law. When does the law create an obligation ? ■ The answer may be$ by operating upon facts; and hence, if the facts either do not exist, or do not exist in the manner required by the law, no obligation can be created, because the fact must not only exist, but exist in the proper manner, before the law will act. If the judgment of three inspectors had to be certified in a particular manner to the Board of Police, before it could assess a tax upon the complainant’s lands, and the Board proceeded to make the assessment without having such authority, its action would be void; or, in other words, the assessment would not create any obligation whatever on the complainant; the law only creates an obligation when it has been fully observed. .

As this point is decisive of the case, we have not deemed it necessary to examine the other points made by counsel. Under the Act of 1850, we do not think the tax could be collected, for the plain reason that it could not be applied to the construction of a levee on the complainant’s lands, as contemplated by the Act of 1846. If the money were collected, the complainant would be entitled to recover it back again. The fifth section must be construed to have reference to suits touching money, which may still be applied to levee purposes.

Decree affirmed.