Warren County v. Nall

I. Statutory Construction. Governmental grants. Ordinary con/ueyanees. Technical terms. A legislative grant of lands, acquired by the state from the general government in trust for a public purpose, to a county, in furtherance of such purpose, is not a donation, and rules for the construction of governmental gifts should not be strictly applied thereto. Such a grant does not require for its validity the use of the technical terms found inordinary conveyances of land, and should be-sustained if it can reasonably be done. 3. Same. Transposition of sentences. The canons of construction authorize a transposition of the sentences of a statute when so to do makes legislative intent manifest and harmonizes the entire statute. 3. Same. Laws, called session 1853, pp. 94, 95. Swamp and overflowed lands. The act of October 19, 1853 (laws called session 1853, pp. 94, 95). granting to Warren county the swamp and overflowed lands (acquired by the state under act of congress, approved September 38, 1850), lying in said county, between the Mississippi river and the hills, is not void for uncertainty of description. 4. ■ Same. Right of selection. The said act of 1853 by its proviso limited the county to 50,000 acres of said land, but conferred on the county the rig'ht to select the same from the larger quantity embraced within the description. 5. Same. Right continuoits. Yet in force. The right of selection and sale conferred on Warren county by said act is a continuous one and has never been impaired. ■6. vSame. Contemporaneous construction. A legislative grant which was treated as valid for nearly fifty years by the officials of the state, including its chief executive, should not be held void by the courts if it can reasonably be avoided. 7. Counties, Lands op. Excision. Placed in another county. The lands of a county do not cease to belong to it because they are excised by legislative act and placed in another county. 8. Same. Exempt from taxation. Code 1880, $468. Code 1892, $3744, par. (c). The lands of a county are exempt from taxation although situate in another county, under code 1880, § 468, and code 1893, $ 3744, par. (c). The exemption is as broad, notwithstanding variant language, under the one code as the other.

From the chancery court, first district, of Hinds county. . Hon. Henry C. Conn, Chancellor. Warren county and another, appellants, were complainants in the court below, Nall, state land commissioner, was defendant there. The opinion fully states the case. It is competent for the legislature to grant swamp lands to the different counties in the state and empower them to sell the lands and devote the proceeds to general county purposes. Bock v. Binehart, 88 Iowa, 37; Killer v. Brickey, 78 111., 133; Whiteside Bounty v. Burchett, 31 111., 68; Beaurreau Bounty v. Thompson, 38 111., 566. That the words employed in the act of 1852 constituted a grant in prwsenti has already been determined by this court, and is not now open to discussion. Fore r. Williams, 35 Miss., 533; Killer v. Brickey, 78 111., 133; Smith v. Miller, 105 Iowa, 688; Bailey v. Ballanan, 87 Iowa, 108; Bailroad Bo. v. Smith, 9 Wallace, 95; Shaw v. Kellog, 107 U. S., 312; Wright v. Boseberry, 121 D. S., 188. The validity of legislative grants does not depend upon technical terms. Ward v. Bartholomew, 6 Pick., 409; Rutherford v. Green?s heirs, 2 Wheat., 196. In the case at bar the legislature conveyed all the swamp lands in Warren county, between the Mississippi river and the hills, to said county, and authorized the county to sell and make good and valid titles. This language is plain, unambiguous and needs no construction, .and if there is any doubt created, it is by the terms of the proviso. But the defendants seem to argue this case as if the proviso constituted the entire act, by seeking to maintain that the language- of the proviso is indefinite and uncertain as to the land conveyed, and, by practically ignoring the granting part of the act, attempt to defeat the county’s title. The title of the county does not depend upon the proviso, but upon the granting clause, and the language there, as stated, is unmistakable and the character and boundaries of* the land conveyed are defined with technical accurateness. But considering the proviso with the granting part of the act and there can be no difficult}^ in determining the will of the legislature. All the land was conveyed to the county of Warren for a specific purpose, and being thus vested with the legal title to all the land, the legislature, possibly owing to the uncertainty as to the extent of the area granted, and not knowing positively whether there were fifty, sixty or more thousand acres in the grant, limited the county’s beneficial interest under the provisions of that act, in the property to 50,000 acres. It placed the title of all of it in the county with the right to-convey good and valid title, but the county can sell only 50,000 acres thereof under the act. This state of facts does not present a case of the conveyance of 50,000 acres of unidentified lands, and 'all the authorities, therefore, applicable to uncertainties of description are not important. Statutes should receive a sensible construction, such as will effectuate the legislature’s intention and avoid, if possible, an unjust or absurd conclusion. In Re Cluvpmcm Petitioner, 166 U. S., 661;, United States v. Denver cb Rio Grande Railroad Go., 150 U. 5., 1; Wisconsin Central Railroad Go. v. Forsythe, 159 U. S., 55; United States v. Southern Pacific Railroad Go., 146 U. 5., 570; Mitchells. Wells, 37 Miss., 241; Lemonius v. Meyer, 71 Miss., 514; Smith v. Furbish, 47 L. A. Bep., 226. The aot of 1852 cannot be properly understood or valued without a preliminary consideration of the history of the swamp land grants made by the United States to the various states in the year 1850. The court will find that statute set forth in full in Wright v. Ros’eberry, 121 U. S., 488. The grant was properly accepted by the various states, and the lands were appropriated to the purposes designed. “ Soon after the passage of this act, the question arose as to the time the grant took effect; whether at the date of the act or on the issuance of the patent to the state upon the request of the governor after the lists and plats of the lands were made out by the secretary of the interior and transmitted to him. . . The language of the first section of the act indicates a grant in prtesenti to each state of lands within its limits of the character described. Its words, ‘ shall be, and are hereby, granted ’ import an immediate transfer, not a promise of a transieran the future. It was only when the other sections of the act were read that a doubt was raised as to the immediate operation of the act. On the one hand it was contended that those sections postponed the vesting of title in the .state until the lands granted were identified and a patent of the United States for them was issued. On the other hand, it was insisted that effect must be given to the clear words of the granting clause of the first section, which, ex vi termini, import the passing of a present interest, and that, in consistency with them, the other provisions of the act should be regarded as simply providing the mode of identifying the lands and furnishing documentary evidence of their identification, and not as a limitation upon vesting the right to them in the state. ’ ’ Wright v. Roseberry, 121 U. S., 488. The court will note carefully this decision, which is the accumulation of a long line of previous decisions on the same subject, that the inchoate title to these lands vested immediately in the state by the grant itself, and the fact that the statute called for the execution of a subsequent patent was not an arrest or suspension of the vestiture of the title until the patent should issue. The swamp land grant so made was for the specific purpose of protecting the lands so granted from overflow through their management and sale by the state, the manifest object of congress being to augment the values of property and of the lands in the states themselves, whereby the United States government would derive an immediate, though a secondary, benefit, the federal government not being provided with the machinery for developing the lands through its own agencies. It is true that, as subsequently has been decided, this grant did not constitute a contract between the state on one hand and the United States on the other that the proceeds should be applied exclusively to levee or drainage purposes, nor did it constitute a technical trust of such proceeds, but it was the institution of a relation between the state and the United States based on good faith between the sovereignties, and while no citizen could interfere in case such good faith was not observed, yet, nevertheless, the obligation of honor and good faith did exist, and is expressly asserted in the decisions of the supreme court of the United States. United States v. Louisiana, 127 U. S., 182, and earlier cases therein cited. It was this interest so created in 1850 with which the legislature of Mississippi in the year 1852 (being the first session of the legislature after the passage of the act of congress making the grant) undertook to deal. At the regular session of 1852 the following acts were passed: 1. An act, approved March 3, 1852 (laws 1852, p. 132), granting 35,000 acres of the swamp lands in Homochitto swamp to the commissioners of the Homochitto river, and also granting all swamp and overflowed lands on Leaf river to the commissioners for Leaf river. Sections 1 and 10. 2. An act, approved March 12, 1852 (laws, p. 99), granting the swamp and overflowed lands on Pearl river in certain counties named, to the commissioners of the southern district of Pearl river. Section 2. 3. An act, approved March 15, 1852 (laws, p. 41), providing for the issuance of land scrip to the counties of DeSoto, Tunica, Coahoma, Bolivar, Washington, Issaquena and Sunflower, such scrip to be located, among other lands, on the swamp lands aforesaid situated within said counties. Section 12. 4. An act, approved March 16,-1852 (laws, p. 31), making it the duty of the governor to take steps necessary to procure from the United States the location of the lands under the swamp-land grant and the patents thereof from the secretary of the interior. 5. An act, approved March 16, 1852 (laws, p. 33), providing that, ‘ ‘ on all of the rivers and streams east of the western base of the hills bordering on the Mississippi bottom, from the Louisiana line to a point opposite the mouth of the Yazoo river, and on all the rivers and streams east of the western base of the hills bordering on the bottoms of the Yazoo and Tallahatchie rivers, the swamp lands donated as above should be and were granted to the counties in which such lands were situated; and also appropriating 60,000 acres of the swamp lands situated in the counties of Tallahatchie, Holmes, Carroll and Sunflower to the improvement of the navigation of the Yazoo, Tchula and Tallahatchie rivers up to the mouth of Coldwater. Sections 1 and 7. It will be observed that in all this legislation there was no provision for Warren county and no appropriation or donation of the lands lying therein. The entire subject was not exhausted; wherefore, at the succeeding session of the legislature, which was a special session, of October, 1852, among other minor bills, the following additional legislation was had: 1. An act approved October 18, 1852 (laws, p. 73), appropriating to the county of Tunica 100,000 acres, and to the county of DeSoto 36,000 acres of the swamp lands aforesaid. 2. An act approved October 19, 1852 (l'aws, p. 94), entitled, “An act to aid the construction of levees in Warren county and for other purposes,” ceding 50,000 acres of lands to the county of Warren for levee purposes. And the last act is the one which is the basis of the conti’oversy in this case. It is strenuously contended by adverse counsel that this act making the session to Warren county is void on its face for uncertainty; that inasmuch as it is a grant of a determinate number of 50,000 acres out'of the larger quantity without any other terms of definition or identification, it is void. We dissent entirely from the view of counsel in this particular, and contend that the act is valid and enforceable. One fallacy in the argument of adverse counsel consists in the twofold proposition: (1) That this act is to be brought to the test of those rules which determine the validity of a deed between individuals; and (2) that in so far as a different rule shall apply because of the fact that it is a government grant, the rule of construction is even stricter in favor of the government than it would be in a deed between individuals. In this counsel is altogether in error. In the first place the court will remember that, as this •court was careful to observe in the case of Jones v. Madison Ooimty, 72 Miss., 798, this grant was not a donation in any proper sense of the. term, and the rule of construction applicable to donations does not apply. It was not a donation, simply because it was only the practical working out of an improvement scheme inaugurated by the Congress of the United States, and to the carrying out of which the state was pledged in good faith. In the second place the court will remember that the method of construction and treatment of a legislative grant was long since settled in the case of Rutherford v. Green, 2 Wheat., 196, where the supreme court of the United States said, “It surely cannot be necessary now to say that the validity of a legislative act depends in no degree on its containing the technical terms usual in a conveyance.” “It is the duty of the court to sustain and locate a grant when it can by any reasonable possibility be done. ’ ’ Phillips v. Ombbree (Tenn., 1899), 52 S. W. Rep., 787. “A-grant shall not perish if we can spell out its meaning.” Funna v. Manning, 11 Hum., 311. “A patent is not void for uncertainty unless both the exterior boundaries and the exclusions are uncertain.” Fall v. Martin, 89 Ky., 9; JBallowe v. Fill-man, 37 S. W. Rep., 950 (Ky.) It is manifest that" the proposition of counsel in connection with these government grants is not a practically working-proposition, and the construction for which he now contends has never been one which has been invoked or applied in all the antecedent history of this state. The statute contains terms which authorize the county itself to make the selection. The whole effect of the statute is, first, a grant of 50,000 acres out of the total area, and, secondly, a grant of authority to sell the 50,000 acres or any part thereof, for manifestly it was never intended that the board of police should sell the whole 50,000 acres as one body or not at all, and under the statute every sale made operated, of course, as a selection by the county of so much of the 50,000 acres granted. Manifestly so. It is impossible that the county should sell the lands without selecting the lands to be sold, by the very act of sale. Hempstead v. Underhill, 20 Ark., 237; Bailey v. Oallanan, 87 Ga., 107. Now the. bill alleges, and that allegation is, of course, admitted by the demurrer, that the company has been, at intervals, selling these lands all along, and the bill alleges, furthermore, that the county has sold to its co-complainant, Metzger, and has executed to him deeds therefor conformably to the statute, all these very lands in controversy. And we claim that this is a selection made by the county in strict conformity to the authority of the statute. It is not contended, so far as we know, that this statute has ever been in terms repealed. Assume that the act does not contain any method of identification, it is yet a good ‘ ‘ float.5 ’ United States v. McLaughlin, 127 U. S., 428; Carr y. Quigley, 149 U. S., 652; United States v. Oregon,-etc., Go., 69 Fed. Rep., 899. Governor McRae’s patents were not needed to invest the county of Warren with a vested, vendible interest in the lands, or to invest the county with a vendible title to the same. All that these patents needed to do was to identify the lands and perfect the inchoate but vested and vendible title which had already been granted and vested by the statute. The statute created a vested interest although an inchoate title, and the only function of the patent was to identify and- segregate the lands. Rutherford v. Creen, 2 Wheat., 196; Wright v. Ro&eberi'y, 121 U. S., 488; Rogers Works v. Society, 164 U. S., 559; Bailey v. Cdllanan, 87 Iowa, 103; Downs v. Downs, 2 How. (Miss.), 915; Anderson v. Lewis, Freem. (Chy.), 178; ForeY. WilUams, 35 Miss., 533-; State v. Sioux City, etc., 7 Neb., 357. In Downs v. Downs, supra, the precise question was before the court. In that case the State of Georgia, in the year 1875, passed an act by which John Donaldson and others were each allowed 10,000 acres of land, to be located by them on the Tennessee river. The land was not located in the act, or otherwise described. It simply provided that the lands should be located by the grantees, but how or when was not prescribed. The supreme court said (p. 926): “It is here insisted that he had no interest which was the subject of the grant of'conveyance, that he had a bare possibility. Let us see how this is. The act or resolution of Georgia declares that 10,000 acres of land shall be allowed to William Downs, to be laid off by him on the Tennessee river. The terms used' clearly vest a present interest. ‘Allowed,’ when and how ? At the passage of the act and by virtue thereof. At what place ? ‘ On the Tennessee river. It is true the grant is not located to any particular spot or piece of ground by metes and bounds, and no right to enjoy any such was vested by the act of Georgia at the time of its passage, but an interest was vested at that time, which, by an act to be done by the parties themselves, is to vest an interest or right to a particular tract of land, and which it needed no further enactment to vest in him who was the subject of the grant. This view of the subject, were there any doubt, will be found to be amply sustained by authority. ’ ’ Now, the authority granted to Downs to make the location was not a whit more specific than the authority granted to the board of police of Warren county to make the selection by making sales. Whatever might be the question as to lands unsold out of the general lands, so far as the board has sold lands, there can be no question, But to go back to the governor’s patents. The county of Warren having received by the act of 1852 a vested interest, whether arising to the dignity of a legal title or only an equitable title, it only remained for the lands to be identified, and this was done by the governor’s patent. The issuance of that patent was not a legislative act, but was only ministerial. It was a purely executive function. Veeder v. Guffy, 3 Wis., 507; United States v. Stone, 2 Wall., 525; Saltmarsh v. Grommelin, 35 Ala., 5é. The constitution of 1832 was in force at that time. Under that constitution we claim the following provisions gave the governor full authority to make a patent having the effect claimed for the patent in question: Article 2, Section 1. — “The powers of the government of the State of Mississippi shall be divided into three distinct departments. and each of them confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are judicial to another, and those which are executive to another. ’ ’ This distribution was exhaustive, and all of the executive authority of the government was invested in the executive magistracy. Art. 5, Sec. 1. — “The chief executive power of this state shall be vested in a governor, who shall hold his office for two years from the time of his installation.” Saltniarshv. Cromme-Un, 35 Ala., 54. Art. 5, Sec. 9. — “He shall take care that the laws be faithfully executed.” Cunningham v. Afeagle, 135 U. S., 1. Art. 5, Sec. 12. — “There shall be a seal of this state, which shall be kept by the governor and used by him officially, and shall be called the great seal of the State of Mississippi. ’ ’ “The words of a private grant are taken most strongly against the grantor, though if the meaning cannot be discovered the instrument is void. But this rule is reversed in public grants. They are construed strictly in favor of the government, on grounds of public policy. If the meaning of the words be doubtful in a grant, designed to be of general benefit to the public, they will be taken most strongly against the grantee and for the government, and therefore, should not be extended by implication, in favor of the former, beyond the natural and obvious meaning of the words employed. Any ambiguity in the terms must operate in favor of the government. Whatever is not unequivocally granted is taken to be withheld. Whether the rule be of property, franchises or privileges, it is construed strictly in favor of the public; nothing passes but what is granted in clear and explicit terms.” Sutherland on Statutory Construction, sec. 378, and cases. In United States v. Arredondo, 6 Pet., 738, there is a compilation of the rules applicable to public grants, and therein it is declared that “ public grants convey nothing by implication; they are construed strictly in favor of the king..... The grantee is restrained to the place and shall have no lands out of it by the generality of the grant referring to it, as of land in A. in the tenure of B., the grant is void if it be not both in the place and tenure referred to.....The general words of a king’s grant shall never be so construed as to deprive him of a greater amount of revenue than he intendéd to grant, or to be deemed to be to his or the prejudice of the commonwealth.....In order, therefore, to ascertain what is granted, we must first ascertain what is included in the exception, for whatever is included in the exception is excluded from the grant. ’ ’ In Mills v. St. Clair, 8 How. (U. S.), 581, it is said: “ hirst, that in a grant like this, designed by the sovereign power making it to be a general benefit and accommodation to the public, the rule is, that, if the meaning of the words be doubtful, they shall be taken most strongly against the grantee and for the government, and therefore should not be extended by implication in favor of the grantee beyond the natural and obvious mean ing of the words employed; and, if these do not support the right claimed, it must fall.....Secondly, if the grant admits of two interpretations, one of which is more extended, and the- other more restricted, so that a choice if fairly open and either may be adopted without any violation of the apparent objects of the grant, if, in such case one interpretation would render the grant inoperative and the other would give it force and effect, the latter, if within a reasonable construction of the terms employed, should be adopted.....Now, in view of these facts and consequences, and applying them to language of an ambiguous character, and seeking assistance from a settled rule of construction in case of doubt, and finding that rule of construction to be that when two constructions are equally open to the court the one should be adopted most favorable to the government, the consequence must be,” etc. In Richmond Railroad Co. v. Louisa Railroad Co., 13 How. (U. S.), 81, it was said: “The rule of construction in all such cases is now fully established to be this, ‘ that any ambiguity in the terms of the contract must operate against the corporation and in favor of the public, and the corporation can claim nothing but what is clearly given by the act. ’ See Charles River Bridge v. Warren Bridge, 11 Pet., 541.” Slidell v. Grandjeau, 111 U S., 437. In Gaines v. Ooates, 51 Miss., 342, the foregoing rules were approved by this court, and wherein it is declared: “Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public. Minium v. La-Rue,, 23 How. (U. S.), 435. Public grants are to be construed strictly. 11 Pet., 420. ” Where two parts of an act conflict, the great weight of authority is that the whole act is void. Sutherland on Statutory Construction, sec. 220. In this state it was-held that where the first clause of a statute conveyed title, and there was a later clause in the same statute repugnant to the firsts that the former would prevail. Fore v. Williams, 35 Miss., 533, although the contrary was held by Oom. Banh v. Clumbers, 8 Smed. & M., 9. But while there is a division of opinion as to the effect of contradictory clauses of an act of equal dignity, there is no doubt as to the effect of a proviso upon the body of the act. ‘ ‘ By a singular caprice of the law, a saving clause totally repugnant to the purview is rejected, while a proviso directly repugnant t-o the main body of the act repeals the purview, as it is said to speak the last intention of the lawmakers. ” Sutherland on Statutory Construction, sec. 221; Sedgwick on Const. & Stat. Law (2d ed.), 49; 23 Am. & Eng. Ene. L. (1st ed.), 483; 23 Am. & Eng. Ene. L. (1st ed.), 228; Oom. Banh v. Q/iambers, 8 Smed. & M., 9. The fact that Governor McRae executed patents to Warren county for these lands could confer no title, as no authority was granted to the governor to make deeds or select the lands-to be conveyed. The act, if valid, is self-executing as a conveyance, and the patents executed by Governor McRae are void. Nor do these patents strengthen the county’s title as a recognition by the executive department of the right of the county to the lands. It would have the contrary effect, for, if the act was valid and conveyed the lands by its terms, no patent was necessary, and the attempt to make one was a recognition that the means selected by the legislature of vesting the title was inoperative and void. So, too, the alleged refusal of the legislature to interfere in the matter evidences the opposite of the contention. For, if the lands had always been the property of the state, and the legislature knew this fact, it would not commit itself to the recognition of Warren county’s title in any way. Besides, no interpretation by the officers of state, by conduct, could make certain the description of the lands on this grant and vest title in the county. If so, an acknowledgment by parol of a gift of land could vest title contrary to the statute of frauds. This grant was void ah initio. The change of boundary of Warren county so as to include these lands in Issaquena county, put them outside the purpose of the act of 1852. The donation was for the protection of the lands themselves by the construction of levees. This purpose is incompatible with the change of the lands themselves from the jurisdiction of Warren county to Issaquena county, and with the creation of levee districts and putting Warren in part in that district and putting the lands themselves in Issaquena county, which was, under the jurisdiction of the police power, delegated to the levee board of the Mississippi levee district. These lands thus became (1) outside the jurisdiction of Warren county, and therefore it was incapable of executing the purpose of the grant for levee purposes in its county; (2) in the j urisdiction of Issaquena county, and it, in turn, in the jurisdiction (quoad hoc of Mississippi levee district; (3) by a part of Warren county being added to Mississippi levee district the jurisdiction of this police power was expressly taken from it and vested in Mississippi levee district, in denial of the delegation of the power to construct levees in the county, and hence the purpose of the act of 1852 was abrogated. The revocation of the object of the agency certainly revokes the delegation of authority of the agent. By the legislative change of boundary and the transfer of the lands from Warren county to Issaquena county, the title to all of these lands became divested out of Warren county, if vested by the act of 1852 in it. When the land, public property, was excised from Warren county it ceased to be owned by Warren county. The legislative will is supreme, and unless, in changing the boundaries, conditions are imposed, none exist, and the public county property ceases to belong to the county from which it is excised. Chickasaw County v. Sumner County, 58 Miss., 619; Clay County v. Chickasaw County, 64 Miss., 534; Adams v. Railroad Co., 76 Miss., 721; Dillon on Mun. Corp., sec. 128 and note sec. 188; 7 Am. & Eng. Ene. L., 968 el sey., 966, 914; Harris v. Whiteside Co., 105 111., 445; Cooley on Const. Lim., 289, 293; 2 Wend., 209. The sale of these lands for taxes, if they are the private property of Warren county, conveyed a good title. The only objection urged in the bill to this tax sale is that the lands were not taxable, being the property of W arren county. The sale for taxes creates a valid title unless the taxes were paid or there are no taxes due. With the power to tax county property, and especially private property of the county, the statute declared that the following property and no other shall be exempt: “ Property real and personal belonging to the county within the same.” The property is territorially defined — that within the county. The exemption extended to that and none other. In the code of 1892 these words, within the same,” were omitted. The property being private property, as contended, and being in Issaquena county, was not property of Warren county “ within the same,” and, hence, was subject to taxation. Exemptions from taxation being in derogation of the common right, are strictly construed.