Eastman, Gardiner & Co. v. Adams

| Miss. | Oct 15, 1911

Smith, J.,

delivered tbe opinion of tbe court.

Appellee instituted tbis suit in tbe court below to recover of appellant damages, on bebalf of tbe state, alleged to bave been sustained by reason of tbe cutting by appellant of timber on sixteenth section land. From a decree in bis favor, tbis appeal is taken.

We will pass by all preliminary matters, and address ourselves solely to what appears to be tbe merits of tbis controversy. Some time prior to the institution of tbis suit, appellant bad cut timber from sixteenth section land, and the board of supervisors of Jones county, in which county tbe land was situated, instituted a suit in tbe chancery court of that county to recover the value thereof. On application of tbe defendant, tbis suit was removed to the federal court at Meridian. While tbe suit was pending tbe board of supervisors fixed tbe value of the timber cut at three hundred dollars and accepted from appellant tbis sum in full settlement thereof, and an agreed decree reciting tbis settlement was entered in tbe federal court. Tbe contention of appellee is that tbe timber, in fact, was worth more than three hundred dollars, that under tbe provisions of Sec. 100 of our state Constitution, tbe board of supervisors was without power to accept any sum less than the real value of tbe timber in settlement therefor, and that, consequently, tbe action of tbe board was a nullity, and did not operate as a discharge of appellee from liability for tbe actual value of tbe timber.

Under Sec. 4701 of tbe Code of 1906, tbe boards of supervisors of tbe several bounties in which are situated sixteenth section lands bave, under tbe general super vision of tbe land commissioner, jurisdiction and control thereof, and of all funds arising from any disposition thereof. When tbis timber was cut by appellant, it-therefore became the duty of the board of supervisors of Jones county to collect from it the value thereof, and to institute whatever proceedings necessary to enable it so to do. The claim of the county or state against appellant was unliquidated, and, in order that a settlement could be had, authority to ascertain and fix the amount thereof must of necessity be lodged somewhere; and since the board of supervisors had full jurisdiction and control of the matter, it follows that this power is lodged with it. Otherwise, no settlement of such a claim could ever be made, except at the end of a lawsuit, in which the amount of damages could not be agreed upon, but must be ascertained by the judgment of the court. It cannot be, therefore, that this character of obligation or liability is embraced within the meaning of these words, as used in Sec. 100 óf our Constitution.

In State v. Fragiacomo, 71 Miss. 425, 15 South. 798, this court, in responding to the contention of counsel that these words embraced liabilities of every character to the state and its subdivisions, used this very apt and pertinent language: “Aside from the restriction on legislative action, the section operated equally upon the levee board and upon the counties and towns of the state, and, if construed according to the contention of counsel, would disable not only the state, but all its subdivisions, from making any concession or agreement in reference to very many subjects as to which it may be of the very highest importance that the power should exist. As a litigant, the state or any of the corporations named would be precluded from conducting its suits with that freedom of action which is often found to be invaluable in the progress of litigation. No agreement of counsel, however honestly made, no concession, no compromise, the effect of which would be to ‘diminish’ or ‘postpone’ the demand asserted, would be conclusive, and therefore never would be accepted. From a consequence such as this the mind shrinks and retreats. A change so radical and serious can only be believed to have been contemplated when the language used is clear and unambiguous, and sufficient to impel to but one conclusion.”

Since it does not appear that this settlement was tainted with fraud or collusion, it must be held to be valid, and, consequently, the decree of the court below is reversed, and the bill dismissed.

Reversed and dismissed.