196 So. 779 | Miss. | 1940
On the second Monday of July, 1938, which was the regular time fixed by law for the election of an attorney for the Board of Mississippi Levee Commissioners, at Greenville, Mississippi, the appellee, Ernest Kellner, was duly elected by the board as such attorney for the term of two years, ending on the second Monday in July, 1940, as provided by law, at an annual salary of $3,000, payable $250 per month, and continued to serve in that capacity from the second Monday in July, 1938, until the second Monday in July, 1939, when he was summarily discharged as such attorney, effective instanter, by an order of the appellant, Board of Mississippi Levee Commissioners, without any reason being assigned for such action, and without any reason existing therefor so far as the record now before us discloses. In fact, the contention of the appellee that his contract of employment was arbitrarily terminated by the appellant is not seriously contested, it being the contention of the appellant that it had the right to discharge the attorney at any time either with or without cause for so doing. The only explanation suggested as to why the order of the board whereby the attorney was elected for the two year period was arbitrarily terminated at the end of the first year is the fact that there had been a change in the board's personnel. Inquiries made by some of the members of the board and by the appellee, Kellner, as to why he was being discharged met with no response. He was not only *239 ready and able, but expressed, both orally and in writing, a willingness to fulfill the contract. Thereupon an order was adopted by the board electing and employing another attorney for the ensuing year, at and for the same salary of $3,000 per annum, payable at the rate of $250 per month thereafter.
Chapter 175, Laws of 1912, entitled, "An Act to fix the tenure of office of the officers and employes of the Board of Mississippi Levee Commissioners, the time for holding the regular elections, and to provide for temporary appointments under certain circumstances," provides, among other things, "That the term of office of the present President, Secretary and Treasurer, Engineer, Attorneys and Cotton Reporters of the Board of Mississippi Levee Commissioners shall expire on the second Monday of July, 1912, or as soon thereafter as their successors are elected (or appointed) and qualify; and thereafter the term of office of the President, Secretary and Treasurer, Engineer, Attorneys, and any other employees that said Levee Board may deem proper to elect, shall be for two years from the second Monday of July of the even years or until their successors shall be elected (or appointed) and qualify."
Thus it will be seen that the tenure of office or employment of the attorney for the Board of Mississippi Levee Commissioners is definitely fixed by the provisions of this Act at the period of two years.
Chapter 152 of the Laws of 1918 provides, among other things, "That the engineer, attorneys and secretary and treasurer of said board [referring to the Board of Mississippi Levee Commissioners] shall be required personally to discharge the duties of their employment, as provided by section 267 of the constitution, for persons appointed to any office or employment of profit under the laws of this state, and said engineer, attorneys and secretary and treasurer shall be deemed employees of said board, subject to be discharged for cause at any time, *240 and shall hold their positions for the term for which they were employed."
The above quoted provision of said chapter 152, Laws of 1918, was amended by chapter 167 of the laws of 1922, so as to omit after the word "discharged" the words "for cause", and to add at the end of the provision of the statute above quoted the words, "unless sooner discharged by the board." And the statute, as so amended, was reenacted by chapter 245 of the Laws of 1926, and by chapter 110 of the Laws of 1930.
It is therefore contended by the appellant that the legislature, in omitting the words "for cause" from chapter 167 of the Laws of 1922, chapter 245 of the Laws of 1926, and chapter 110 of the Laws of 1930, intended in effect to confer upon the said Board of Mississippi Levee Commissioners the power arbitrarily to terminate the two year tenure of employment provided for under chapter 175 of the Laws of 1912 at any time the Board might see fit to do so.
On the other hand, it is contended by the appellee (1) that in view of the fact that the duties of such attorney are prescribed by law to the extent that he is required to pass upon the validity of securities for loans or deposits of the funds of the Levee Board, and is authorized by chapter 110 of the Laws of 1930 to file petitions to condemn property required for levee purposes, and is to perform other duties wherein the public has an interest, and which duties are continuing, rather than for a specific service; and in view of the further fact that his term of service and maximum compensation are fixed by law, the position to which he has been elected for each biennium, under the said chapter 175 of the Laws of 1912, is a public office, and that therefore he is not a mere employee. That, consequently, he could not be removed from office except in the manner provided for by section 175 of the Constitution of Mississippi; and (2) that even though such attorney should be deemed an employee of said Board, as he is designated by chapter 152 of the Laws of *241 1918, and subsequent statutes amendatory thereof, supra, the Board would be without power and authority to summarily discharge him without notice, hearing, or reasonable cause.
In support of his contention that the attorneyship for the levee board is a public office, the appellee cites the case of Yerger v. State,
Also appellee cites the case of Ware v. State,
In support of his second contention that even though such attorney may be deemed to be an employee of the board he could not be arbitrarily discharged, the appellee argues that in view of the fact that the levee board had full jurisdiction and authority under the law to employ him for a definite term of two years, as provided by law, the contract could not be terminated except for reasonable cause for the reason that any exercise of arbitrary power by a public board is abhorrent to any notion of right and justice in this country.
Applying the principle thus contended for, the question arises as to whether or not in construing the provision of Chapter 152, Laws of 1918, giving the board the right to discharge an engineer, attorney, secretary and treasurer after they had been elected for a term of two years, it would be interpreted to mean that they could be discharged only for cause even though the words "for cause" did not appear in the statute. If these words would have been read into the statute by implication, the question is then presented as to whether or not the omission of them by the legislature from the provisions of Chapter 167, Laws of 1922, Chapter 245, Laws of 1926, and Chapter 110, Laws of 1930, would necessarily evidence an intention on the part of the legislature to grant arbitrary power.
In the case of a public officer, this Court said in the case of Yerger v. State, supra, where the statute designated the officer in question as an employee, that: "We will see that, in every instance where it was the intention of the Legislature to make a subordinate officer hold at the will or pleasure of the appointing power, it has said so." In that case the Court made the following quotation from the case of Hallgren v. Campbell,
In the case of Ware v. State, supra, the Court rejected the contention that authority on the part of the State Board of Health to remove a county health officer "at any meeting" meant that it could remove such officer at will. This would seem to answer the contention of the appellant levee board that the power granted the board to discharge the attorney at any time should be construed to mean that he could be discharged at will and pleasure. It is true that the Court in that case was considering the right granted by Section 2490 of the Code of 1906 to remove a known public officer — county health officer — at any meeting of the board, but we are concerned here with the same principle insofar as the interpretation of language is concerned. If the right to remove "at any meeting" does not mean at will, then does it not follow that the right to discharge "at any time" would not give the power to discharge at will.
The Michigan Court in the Hallgren case, supra, said [
It should be noted that the legislature in reenacting Chapter 152 of the Laws of 1918 and in omitting from *245 the statutes amendatory thereof hereinbefore mentioned the words "for cause" did not substitute in lieu thereof the words "without cause" or "at will." Moreover, wherever a power is granted to a public board to be exercised at its discretion, the grant should be construed to mean a legal and not an arbitrary discretion.
The appellant relies strongly on the case Oldham v. Board of Drainage Commissioners,
In that case the Court further said that: "It will be noted that this section confers upon a drainage board the express authority to employ attorneys and to remove or discharge them at will, and by reason of this provision we think this board had the legal right to dispense with the services of appellant at any time." Moreover, the statute in question only authorized employment of attorneys to assist in the organization of the drainage district and did not fix the term of the employment. And a member of the board testified that: "The action was taken because some five or six lawyers were employed by the old board and I considered that would work a hardship on the taxpayers." In other words, the action of the *246 board was not shown to be arbitrary even though the power to discharge the attorney at will was granted.
It is next urged by the appellant, in support of its contention that the appellee was not an officer of the board, that it was not required that an attorney be employed. We are unable to agree with this contention for the reason that the legislature beginning with Chapter 160 of the Laws of 1910, if not earlier than that time, has seen fit to specify in each of the successive statutes that the engineer, attorney, secretary, and treasurer shall be required personally to discharge the duties of their employment as provided by Section 267 of the Constitution and has also prescribed by the provisions of Chapter 175 of the Laws of 1912 that their terms of office shall be for two years from the second Monday of July of even years. The appellee was so employed and it is to be presumed that his employment at the time and for the period specified was under and by virtue of the authority of that Act since it is the only statute called to our attention which prescribes the term of such office or employment. It was clearly contemplated by the legislature that an attorney should be employed since the law requires that certain duties, hereinbefore referred to, should be discharged by the attorney of the levee board.
In the case of Stokes v. Newell et al.,
What was said by the Court in the case of Ware v. State, supra, in construing section 2490, Code of 1906, giving the state board of health the right to remove a county health officer "at any meeting" of the board, and in holding that the provision, "simply means that the state board may exercise the power of removal for good or reasonable cause . . ."; and that "if this is not the meaning of that section giving the board the right to remove, then the other provision of the statute fixing the term of office at two years would mean nothing," should apply with equal force to the removal of the attorney for the levee board whose term of office or employment is fixed by statute at two years; and this without regard to whether he be an officer or an employee. The point decided was that authority to remove "at any meeting" did not mean "at will," while the point at issue in the case at bar is whether the language of chapter 110, Laws of 1930, giving the right to discharge the attorney for the levee board "at any time" means "at will." Nor does the fact that the court later held in the case of Mississippi State Board of Health v. Mathews,
But it is next urged by the appellant that no recovery can be had in this case for the reason that the levee board is limited under the law to the payment of $3,000 per annum as salary for an attorney; that the attorney who succeeded the appellee has been drawing this salary each month since July, 1939, and, therefore, that the public funds cannot be subjected to the expense of twice paying the salary. That eventuality should have addressed itself to the thought and consideration of the members of the Board who voted arbitrarily to discharge appellee at a time when he was advising them that they had no legal right to do so, and who have been voting to pay to the second attorney the salary due appellee. Moreover, the public is presumably protected in the premises if any illegal allowances have been made. Any recovery to which appellee may be entitled cannot be defeated by showing that the sum due him has been paid to someone else over his protest.
In our opinion the case of Stokes v. Newell, when here on its first appeal, as reported in
"Superintendent of education who refused to issue contract to principal legally elected for two years could not be compelled by mandamus instituted at end of two-year period to issue principal a pay certificate where principal had no contract and had not taught." And the Court further quoted from the decision in the case of Whitehurst v. Smith, supra, wherein it was said: "A teacher entitled to such a contract may compel it by mandamus if the action therefor is taken before the school term has expired. But appellant did not do this and did not teach. Certainly there cannot be compelled by mandamus the making of a contract for the doing of a thing which has become wholly impossible to perform by reason of the complete elapse, when the petition is filed, of the time within which performance is to be accomplished."
After the Court held that mandamus would not lie to collect the salary sued for, Miss Stokes brought suit against the school trustees in an action of tort for breach of duty in failing to enter the contract of her employment as a teacher, and for arbitrarily refusing to permit her to teach in the school after her election to the position *250
and her acceptance thereof. The Court held that the trustees owed her the duty to reduce the contract to writing on the minutes, and the failure to do so was a breach of duty for which they became liable. Stokes v. Newell et al.,
If we have thus correctly stated the issues involved in the two Stokes cases, respectively, it will be readily seen that the appellee, Kellner, whose contract was of record, cannot be denied recovery under the principles therein announced. It is not contended that he would be entitled to recover against the public and its funds, in the absence of an order in the minutes of the Levee Board electing him as attorney for a fixed period and at a fixed compensation.
Nor does the case of Board of Supervisors v. Payne,
After having been discharged on July 10, 1939, appellee promptly instituted quo warranto proceedings to regain the attorneyship for the remainder of the term for which he had been elected by the appellant Levee Board, but soon thereafter a non-suit was taken, and the present suit was brought to recover the entire salary for the remaining year. However, the court below limited the recovery to the portion thereof which had accrued up to the time of the trial, and peremptorily instructed the jury to find, accordingly, in his favor.
The Payne case, supra, is discussed briefly in Wunderlich v. State Highway Commission,
Finally, it is urged that a public corporation, such as the Levee Board, can only be sued at the place, and in the court, and on the conditions, provided for by statute, and is not liable to be sued at all unless such place and conditions, and the method and manner of obtaining service of process shall have been prescribed by statute.
As to the absence of a statute prescribing the venue of a suit against such a public corporation, the same is true of suits against municipalities, but we held in the recent case of City of Jackson v. Wallace,
We think it clear under the law that the Levee Board may sue and be sued, plead and be impleaded, contract and be contracted with, in and about the things committed by law to its jurisdiction. It had the right, under the statutes hereinbefore discussed, to contract with an attorney, and to fix his compensation for the two-year period covered by his tenure of office or employment. And having the right to make the contract, recovery may be had thereon for damages for a breach thereof, as held in the Wunderlich case, supra, as to contracts of the State Highway Commission. We find naught to the contrary in State v. Woodruff,
We cannot consider the cross-assignment of error taken by the appellee, without an appeal bond, to the action of the court below in sustaining the demurrer of certain individual members of the Levee Board to his *252
declaration, for the reason that he neither plead further as to them after the demurrer was sustained, nor prosecuted an appeal as required by law. They are neither before this Court as appellants, nor as appellees, pursuant to any process. Trolio v. Nichols,
It follows from the views expressed on the several issues involved that the judgment of the court below must be affirmed as rendered.
Affirmed.