86 So. 517 | Miss. | 1920
delivered the opinion of the court.
(After stating the facts as above). The first question presented is: Is chapter 241 of the Laws of 1918 unconstitutional as impairing the obligations of contracts? It will be noted that all of the parties to the alleged contracts are agencies of the state, that is, the Mississippi Centennial Exposition Company, the several counties and municipalities; no private corporation or person having any interest in or claim to the funds so donated or subscribed under the provisions of chapter 113, Laws-1916. The funds so dealt with are public funds over which the legislature has control, and we think that, if there be any features of contract in the several matters set forth, they are not protected by the constitutional provisions, either state or federal, prohibiting the impairment of the obligations of the contract. All of these boards are creatures' of the legislature, and there is no doubt in our minds of the power of the legislature to direct and control the funds in question so as to make them subject to the demands of the contract sued on if the power to sue exists.
iD|o the terms of chapter 241, Laws 1918, authorize the suit stated in the declaration? This chapter reads as follows:
“Be it enacted by the legislature of the state of Mississippi, that the Mississippi Centennial Exposition 'Company, created by statute approved March 28, 1916, shall be subject to suit by any person, firm or corporation now having an existing cause of action against said company*847 for material contracted for by, or furnished to said company, and such suit may be instituted and prosecuted in any court of competent jurisdiction in Harrison county; provided that this act shall in no way be construed to bind or hold the state of Mississippi for any judgment that may be obtained.”
It is familiar learning that the state and its subdivisions and agencies are not subject to suit unless made so by statute; and the statute, where a statute exists, is the measure of the power to sue such board or agency. the terms of this act as above set out, it appears that “any person, firm or corporation now having an existing cause of action against said company for material contracted-for by, or furnished to said company,” may institute, “and such suit may be instituted and prosecuted in any court of competent jurisdiction in Harrison county.”
The declaration declares on a contract, which is made an exhibit to it, which provides for the completion of a complete electrical system for a gross sum. Under this contract the plaintiff, and not the defendant, was to furnish the material, labor, etc., which made up the completed electrical system. • There is no obligation on the part of the exposition company to pay for materials as a separate item, or for labor as a separate item, or for any appliance as a separate item; but its obligation is to pay for the completed system, which, of course, embraces materials, labor, and supervision. The exposition company is not liable for the special or separate items. It may be and probably is true that the exposition company purchased from divers persons material for its use. The statute does not authorize a suit for damages for a breach of contract, and, taking the declaration as a whole and its several parts, it is essentially a suit for a breach of contract. It is true that the plaintiffs seek to limit their right to materials purchased by the plaintiffs (not' by the defendant), for the construction of the completed electrical light system. The declaration undertakes to aver a delivery of these mate
“And the plaintiffs then and there delivered same to the defendant by storing the same on the grounds of the defendant where the same now remains,” etc.
The specification of how the delivery was made does not carry with it the essentials of a delivery in legal contemplation. But independent of this the contract on which the declaration is founded does not bring the cause of action within the statute. The substance of the pleading must be looked to, and in its substance it is a suit for a breach of contract, and not for material embraced in the contract.
We think the court below should have caused the demurrer to relate back, to the plaintiffs’ declaration, and the demurrer to such pleading should have been sustained.
We do not deem it necessary now to pass upon the question as to whether or not the funds in the bank were subject to garnishment on a valid judgment against the defendant. That subject is not free from difficulty, and we will pretermit a consideration of it until it is necessary for decision.
From what we' have said it follows that the judgment or the court below must be' reversed, and judgment entered here for the defendant.
Reversed, and judgment here for appellant.
Reversed.