Board of Levee Commissioners v. Hemingway , 66 Miss. 289 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

The board of levee commissioners possessed the power to anticipate the maturity of the coupons for interest on its bonds, and pay them with money on hand for their payment. Such power may be said to have been an attribute of its being, and implied from its authority to contract and be contracted with, conferred by the act creating it.

The resolution or order of the board was a sufficient authorization for the payment of the money in discharge of the coupons, on their presentation in pursuance of the resolution.

By its terms the money was to be applied to the payment of the coupons, upon the direction of the president, if the rebate was satisfactory to him and the treasurer. Nothing formal or express to show satisfaction or contentment with the rate on the part of the officers named was required. It was only necessary for the fact to exist, and nothing was said as to its manifestation in any particular manner. Only a state of mind was involved, which would be manifested by the direction of the president and payment of the money by the treasurer in pursuance of it. Acting on the resolution, the president proposed to the holder of the bonds to prepay interest for a rebate of eight per cent., which was the rate of interest on the bonds, and this was agreed to by the holder, of which the treasurer was informed. He made no objection to the rate, and did not evince dissatisfaction with it, in any manner. It must be conclusively presumed, as against him, that he was content with the rate, as he did not object to it, and was silent under circumstances which required him to speak, if he had objection on this point, which was the only one he had any discretion about, or as to which he was entitled to a voice. Besides, the resolution of the board did not commit to the treasurer, its officer and servant, a capricious discretion, even as to the rate of discount. He must be presumed to have been satisfied with the rate, because he should have been in legal contemplation. The rate was the same that the bonds bore. It exceeded the prescribed legal rate of interest, which is six per cent. Also, when he did speak, so as to show his state of mind about the business, the treasurer did not express dissatisfaction with the rate, but excused his non-compliance with the direction of the president on other and distinct grounds, entirely harmonious with the assumption that the rebate offered was satisfactory to him.

The money of the levee board was not a “ special fund,” within the meaning of § 2, of the appropriation act of 1884. That has reference only to state funds for special purposes, as to which the inter-changeability contemplated would do no harm. It embraced only funds in the hands of the state treasurer as such, and did not include a fund, not disbursable in pursuance of acts of the legislature, which furnished data for calculation as to the use of money, but subject to the orders of the levee board.

The state treasurer was made ex-officio treasurer of the levee board, but this seems rather a discriptio personae than anything else, for he was required to give bond as treasurer of said board, and mention is made of his salary as such, and his accountability for its funds is to it, and not to the state, as in case of all money received by him for the state.

While it is clear that the treasurer erred in concluding that he had the right to use the money of the levee board as a “ special fund” under the act of 1884, we think his mistake a very natural one, under the circumstances, arising from a failure to note the distinction between his official relations as treasurer of distinct corporations with correspondingly different responsibilities and duties, and between the funds in his hands in the two distinct capacities — a duplex relation from which it is not surprising that some confusion arose, amid which it was quite natural that the treasurer should prefer the supposed interests of the state.

It follows that the. judgment must be reversed and the cause remanded for a new trial.