Gibbs v. Green

54 Miss. 592 | Miss. | 1877

Chalmees, J.,

delivered the opinion of the court.

The act of Feb. 13, 1867, was a legislative proposition to the holdefs of claims against the old levee board of 1858, by which they were asked to submit to heavy sacrifices on the debts due them, and to accept in lien thereof the new bonds to be issued under said act. For the extinguishment of these new bonds a specific tax of five cents per acre in some of the counties, and of three cents per acre in others, was levied upon all the lands in the levee district; which tax, it was declared, “ shall continue until a sufficient sum is collected, with which to pay off all the debts and liabilities contracted or assumed, and all the script or evidences of debt issued by the general board of levee commissioners, organized under the act approved December 2, 1858.” The taxes to be raised under this scheme went into the hands of a board of commissioners for the purpose of liquidating the new bonds authorized to be issued in extinguishment of the old debts. All lands which might be sold in future for non-payment of the specific tax imposed by the act became the property of the commissioners, for the like purpose of paying the new bonds. The holders of the old claims against the levee board of 1858, with singular unanimity, availed themselves of the invitation extended by the act, surrendered their evidences of debts long past due, which bore interest at the rate of eight per cent per annum, and upon which the accumulations of interest amounted to more than fifty per cent upon the face of their demands. They received in lieu of them new bonds, for the face of their claims only, bearing five per cent interest, and due at intervals of from one to five years.

If any thing is settled in American law, the act of 1867 became a contract between the State of Mississippi and the authorities of the levee district on the one hand and the holders of the new bonds on the other, which it was not competent for either party thereafter materially to modify without the consent of the other. This immunity from change would not extend to mere matters of detail, even though one party or the other might construe modifications made as more or less favorable or unfavorable to their respective rights ; and the presumption would always be in favor of the validity of such changes in the system as the legislature might from time to time adopt. But no fundamental alterations which affected the value of the security carved out for the bond-holder was permissible. It is manifest that the security in this case consisted of the tax which was fastened upon the land “ until ” (in the language of the act) “ a sufficient sum is collected with which'to pay off all the debts,” and of the lands which should be forfeited to the commissioners for non-payment of the tax. The tax, and the lands forfeited thereunder, alike became a fund pledged by the act for the redemption of the new bonds; and it was thereafter no more competent for the legislature to repeal the tax or to divert the lands than it was for them in express terms to repudiate the bonds. Among the countless-cases in support of this well-settled proposition we cite only two, which are strikingly illustrative of the principles upon which it rests. Von Hoffman v. Quincy, 4 Wall. 535 ; McGree v. Mathis, 4 Wall. 143. The doctrine deducible from these- and other cases is that legislative contracts, like that embraced in the act of 1867, are inviolable, and that so long as the courts can find persons or machinery by which their obligations can be enforced, no measures will be left untried to compel performance.

It is true that cases have arisen, where, owing to peculiar facts and circumstances, it has been found impossible to administer relief; but this occurred solely because there were no functionaries upon whom the courts could act, and because the judiciary has neither the power nor the machinery to levy and collect taxes. These cases, instead of being in conflict with, tend strongly to illustrate the general doctrine, and show that the interposition of the judicial arm will never be refused until it is conclusively shown to be powerless. Of this class are the cases of Reese v. Watertown, 19 Wall. 107, and Barkley v. Levee Commissioners, 93 U. S. 258.

The bill in this ease, upon allegations which sufficiently show the necessity for the relief, seeks a subjection of the lands which have from time to time become forfeited to the levee commissioners. We think that the prayer should be granted, unless other reasons than those urged by the demurrer can be shown by answer. That the levee commissioners and their present successors, the auditor and State treasurer, are vested with power to sell the lands does not divest the Court of Chancery of its inherent jurisdiction to' administer a trust fund for the benefit and upon the application of the eestuis que trust. In making the sales, the court can employ the services of the trustees designated by law, or of its own commissioner, as it may deem most advantageous to all concerned. It will proceed, as far as may be, in accordance with the provi'sions of the act of 1867 and of the several acts amendatory thereof, disregarding and treating as unwritten all acts and parts of acts which were intended or had the effect of withdrawing the lands from the ownership of the levee commissioners and their successors, and thereby defeating the claims of the bond-holders. It will not interfere, however, with lands which have been redeemed or bought with the bonds or other evidences of indebtedness intended to be protected by the acts of 1867 and subsequent acts. As to these, the advantages conferred upon the bond-holders, by making their bonds receivable in the purchase and redemption of the lands for all State and county taxes, and their consequent enhancement in value, may be considered as fairly offsetting any loss sustained by the abatement of a portion of the levee taxes due on the lands so redeemed or purchased.

The bill seeks further to enjoin the auditor and treasurer who have succeeded to the position and duties of the levee commissioners from putting in execution tbe provisions of the act approved Feb. 1, 1877. This act, in several of its provisions, seems to be a flagrant violation bf those vested rights of the bond-holders which we have declared inviolable. It repeals the tax of five cents and three cents per acre, and substitutes therefor a tax of two and a half and one and a half cents respectively. It provides that all holders of levee bonds may surrender them by June 1,1877, to the auditor and treasurer, and receive in lieu thereof new bonds for one-third the amount due on those surrendered. The old tax is wholly repealed, and those who fail to surrender their old bonds are denied all participation in the new tax. This seems to be a mere scheme to repudiate two-thirds of the bonds, and to reduce the rate of taxation in consequence of such repudiation ; but yet we cannot see that any duties devolved by the act upon the auditor and treasurer, the performance of which we are asked by the bill to enjoin, are so harmful to the complainant that he is entitled to arrest their execution. Those duties simply are to give notice through the public press of the passage of the act, to receive such old bonds as may be surrendered, and deliver new ones in lieu of them. They have nothing whatever to do with the imposition or collection of the new tax or the abolition of the old one. With them, it is true, the levee tax collectors (who are the sheriffs of the several counties in the levee district) must settle when the proper time arrives ; and it is possible, therefore, that they might be enjoined from giving the sheriffs acquittances in full until those officers have accounted for the full amounts due under the act of 1867 ; but the period for such settlements is distant. No such relief is contemplated by the bill, and hence we express no opinion upon the subject. It may be that mandamus would lie against the sheriffs to compel the collection of the old tax; but this is a question also which we cannot decide in this proceeding. The fact that the complainant, who represents less than one-sixth of the bonded indebtedness, is unwilling to surrender his bonds and accept new ones, does not entitle him to enjoin other parties from doing so. The auditor and treasurer have no power either to compel or deny a surrender of the old bonds. They simply stand ready to receive them from all wbo may offer, and to deliver the new ones in the place of such as may be surrendered. Whether they actually receive any or not must be indifferent to the complainant, if, as alleged by him, the whole law is unconstitutional. Neither an executive nor a ministerial ofScer can be enjoined generally from putting a law in force. Mississippi v. Johnson, 4 Wall. 475. The complainant who seeks an injunction must be able to specify some particular act, the performance of which will damnify him, and it is such act alone that he can restrain. This court has no power to examine an act of the legislature generally and declare it unconstitutional. The limit of our authority in this respect is to disregard, as in violation of the Constitution, any act or part of an act which stands in the way of the legal rights of a suitor before us; but a suitor who calls upon a Court of Chancery to arrest the performance of a duty imposed by the legislature upon a public officer, must show conclusively, not only that the act about to be performed is unconstitutional, but also that it will inflict a direct injury upon him. The complainant has failed to show this as to any of the things which the act of 1877 requires the auditor and treasurer to perform, and consequently the injunction was improvidently granted, and must be dissolved.

Decree affirmed, and cause remanded for answer.