State v. Woodruff , 170 Miss. 744 ( 1933 )

This suit was begun by a bill filed in the chancery court of Hinds county on August 18, 1888. On February 21, 1931, forty-three years thereafter, an interlocutory decree was rendered and an appeal was allowed to settle the principles of the case. At the March, 1899 term, this court, in response to a similar appeal in this case, delivered an opinion, reported in Woodruff v. State, 77 Miss. 68, 25 So. 483, which substantially covered the merits so far as the law is concerned, and it seems to us that the appeal now allowed, thirty-two years thereafter, is for a construction by this court as now constituted of the opinion then delivered.

When a case on an interlocutory appeal has once been before this court, and the court has attempted to deal with the controlling principles in the case, it is not permissible to grant another interlocutory appeal to construe the former opinion, more especially after the lapse of long years, and this is true even when, as here, the former opinion is involved in obscurity or is difficult of exact interpretation. There must be an end to appeals. What was said by the court in this case on this subject in 83 Miss., page 110, 35 So. 422, is not the rule now and has not been since the amendment made in 1924 to the statute, and which appears as section 14, Code 1930. But the stated ground upon which an interlocutory appeal is granted is not controlling, Yazoo M.V.R. Co. v. James, 108 Miss. 656, 67 So. 152, and this court may entertain it upon other grounds apparent from the record. Two of these grounds are, "to avoid expense and delay," and because the decree, which we have decided upon, will do both in this case, we have accepted jurisdiction, and will proceed to a determination which will put this ancient litigation to an end so far as this court and the trial court are concerned.

The case came back also to the court at the October, 1903 term, on the question whether the state was subject to suit in the case, and the opinion is reported in State v. Woodruff, 83 Miss. 111, 36 So. 79, 37 So. 706. These reports give sufficient of the facts to form a general statement of what is now before us, and we will not here repeat them. And we consider that the law of the case as found in those opinions is binding upon us here, although those opinions were delivered by special judges appointed in the case in the place of judges of the court disqualified; but we think it our duty to add that we so definitely disapprove of the decision in 83 Miss., holding the state liable to suit in this case, that we hereby expressly overrule that opinion and decision on that point as to all future cases. We hold that the state cannot be made liable to suit out of implications gathered from a statute or any group of statutes, but the right to sue the state must be expressly granted by statute, without which express grant no allowance to sue the state exists.

The lands which are spoken of as being involved in this litigation are among those in six counties of the Delta lying north of a line projected eastward from the southwest corner of Bolivar county — hundreds of thousands of acres. Neither by the original bill nor by any amendment thereof was any individual liability sought to be imposed upon any owner or owners of any of the lands; nor could there be, for none of the many legislative acts relied on ever attempted to impose any such liability on any owner. There was never against an owner any liability in personam. But the contention was and is that the lands are liable or chargeable in rem and it is sought to enforce the amounts for which the several parcels are charged to be liable by having a commissioner appointed by the said chancery court to sell all these thousands of acres and thereby to make the money to pay complainants. So far as the lands are concerned, the suit is to enforce a charge in rem upon them.

There are occasional sentences or parts of sentences in the opinion in 77 Miss. which speak in general terms of the liability of the land for the No. 1 levee assessments as if it might be meant to hold that these lands could be reached herein by the complainant bondholders, that the assessments or charges imposed by the No. 1 levee act could be enforced by these complainants directly against these lands in the present suit. We have been in much difficulty in the effort to construe the exact meaning of the opinion in 77 Miss. as to what it intended to hold in respect to the liability, if any, of the lands directly to these bondholders. In numerous conferences and otherwise, through many tedious hours, the members of the court have earnestly striven to reach some certain conclusion upon the construction of that opinion, but without entire success. The difficulty is that in that opinion the court separately treated of the several elements which entered into the problem and clearly analyzed and announced in plain and definite language its holdings on the said several component elements, and then in combining those elements into the whole, or in attempting to outline the effect of each of the said separate elements in relation to the entire of the problem before the court, such general language was used that it is impossible to determine with entire confidence what was meant by the general terms employed.

In that dilemma we have determined to resort for aid by borrowing from the principle which is available in the construction of statutes, which principle is that when there is in a statute a particular enactment in plain and definite terms, the particular enactment will prevail over general language contained in the same statute; and we also bring to our aid those fundamental and thoroughly established principles of law in the full view of which we must assume the said opinion was written.

Let us view the general language, above mentioned, touching the liability of the lands directly to these complainants, first, as regards the large number of owners of these lands who were attempted to be made parties defendant to this suit by designating them not by name but by a general description or sweeping inclusion. After naming several defendants, hereafter to be mentioned, the bill continued in its introduction in regard to those made defendants, as follows: "And all persons claiming to own lands within the bounds" of the No. 1 Levee District, "and who are too numerous to be made defendants individually and to be served with process herein."

The court in 77 Miss. made no mention of the abortive manner in which the parties so generally designated were attempted to be brought in as defendants. Certainly, however, the court could not have overlooked fundamental principles and could not have intended by any general language used by it to hold that the numerous owners, attempted to be made defendants by any such designation or description and without process on them, were in anywise effectively before the court, or that their separate lands, separately owned in numerous separate tracts, could in the slightest be affected by this suit.

In a suit concerning a tract or parcel of land, any and all persons holding legal or equitable interests therein of a substantial nature, and which interests would be materially impaired or otherwise adversely affected to a substantial extent by the granting of the relief sought against the land, must be made parties defendant. This rule is imbedded in fundamental right and is of imperative obligation, and when such a party is not actually made a defendant and given notice, any decree made against the land and in impairment of the said holder's interest therein is void as to him and his land as being without due process of law. And this rule is not, and cannot be, avoided by the fact that numerous separate owners of separate parcels or tracts own or hold by the same or similar titles however numerous those owners may be.

The numerous parties rule as to necessary parties defendant has only a limited operation and obviously so; and this is particularly true as to suits concerning lands. Trustees of express trusts and those within the force of a similar reason, may sometimes be allowed as defendants in the place of the numerous necessary parties whom they represent; but there is no such case here as to these so-called numerous defendants nor anything which may be substantially likened thereto. Nor are they averred to be unknown defendants, unknown after diligent search and inquiry, for the bringing in of whom, as defendants, summons may be served by publication. And even if they were sought to be brought in as unknown, there is no sufficient sworn averment to form the necessary basis for publication, for which reason any publication, if it had been made, would be absolutely void. These so-called numerous defendants are not, and never have been, before the court; there is, therefore, no jurisdiction of the lands owned by them, no valid decree could be made herein against them or their lands, and as to them and their lands the bill must be dismissed and the court in writing in 77 Miss. must have known that this would have to be done, from which it follows that the general language referred to must necessarily not have been intended to declare any direct liability of the lands of these numerous separate owners of separate tracts, that is to say, direct liability to these complainant bondholders in this suit.

And, second, the same result, so far as this suit is concerned, must follow as to the lands of the railroad company, of the two land companies, and of all the other defendants of which there were a few, named as defendants in the bill and who were served with process or have entered their appearance and have answered. The title by which these named defendants hold was dealt with particularly in the opinion in 77 Miss., and by the cases to which the opinion in 77 Miss. makes reference with approval; and the effect of the opinion in its particular treatment of the title and lands of the said named defendants is that those lands cannot be reached by these complainants in this suit, and for the following reasons: The title of the named defendants came through the decree in Gibbs v. Green, 54 Miss. 592, and became vested in them or their predecessors on the date of the confirmation of the sale made under that decree, which confirmation was in March, 1882. Previous to that confirmation, all the lands covered therein were held by the liquidating levee board and were not, while so held, subject to the No. 1 levee taxes, and therefore, were not assessable for complainants' bonds. Upon the confirmation of the sale, the lands did then at once become assessable for the 1882 No. 1 levee taxes — 1882 being the last year for which said No. 1 levee assessments could be made. The railroad company paid all the 1882 assessments on its lands except in one county. It is not shown whether the other named defendants paid any of their 1882 No. 1 levee assessments, and for the purposes of this case we will assume that they did not.

By section 10 of the Act of March 17, 1871, under which complainants' bonds were issued, two statutory remedies were provided by which the bondholders could directly enforce the assessment and collection of the assessment from and against the lands by direct proceedings in the name of the bondholders, these remedies being mentioned at page 109 of 77 Miss., 25 So. 483, 486. These statutory remedies were required to be pursued in the matter of jurisdictional venue where the lands are located. In accordance with long settled principles of law, these remedies were exclusive so far as concerned any direct procedure or remedy by the bondholders against the lands. They took the bonds under a statute which expressly provided those remedies in behalf of the bondholders, so far as concerned any direct proceedings by them against the lands, and having taken them in full view of the statute and all its provisions, it is but just that these bondholders must be referred for any direct proceedings against the lands to those statutory remedies, and that in the respect mentioned they shall be, as said, exclusive. These statutory remedies, as pointed out by the court in 77 Miss. top page 110, 25 So. 483, 486, were never effectively repealed and were in available force in 1882 and until the right to resort thereto was barred by the statutes of limitation which have now run and the bar has become complete. This suit in Hinds county is not the character of suit authorized by the said statute either as to its substance or as to territorial venue, and has had no effect either as an admissible remedy by the complainant bondholders directly against the lands or to keep the statute of limitations from running in respect to the remedy directly against the lands. The bill must therefore be dismissed as to all the lands and as to all the owners of the lands, past or present.

This brings us to the liability of the state. There is no question but that the former opinion and decision held the state liable as trustee for all moneys actually collected or received by the state for the account of the No. 1 levee bonds. Counsel for the state have admitted in the argument at the bar that the state is liable for the sum of twenty-one thousand eight hundred fifty-one dollars and seventy-three cents, which it was said was actually received by the state, but this admission was on the condition that that sum should be allowed without interest, and the only argument here upon the sum mentioned is whether interest should be added. Inasmuch as the state cannot be bound absolutely by consent of its counsel as to any monetary judgment to be entered against the state, we have looked into the matter of how the aggregate of twenty-one thousand eight hundred fifty-one dollars and seventy-three cents was made up or calculated, and in so doing we have been put in some doubt whether the entire of the principal of said sum of twenty-one thousand eight hundred fifty-one dollars and seventy-three cents is recoverable by complainants; but when interest is calculated on some of the amounts which the state is unquestionably due to pay, and has been for years, and this interest is added to the principal of those amounts, the said sum of twenty-one thousand eight hundred fifty-one dollars and seventy-three cents is substantially approached in the aggregate, and we shall therefore allow the admitted amount of twenty-one thousand eight hundred fifty-one dollars and seventy-three cents to stand, but without interest on that aggregate. There is no difficulty about the twenty-one thousand eight hundred fifty-one dollars and seventy-three cents, and we pass at once to the question whether the state is liable for the amounts not collected or received by the state, but which should have been collected.

The principal of the bonds held by complainants, and not barred on August 18, 1888, amounts to one hundred forty-seven thousand seven hundred dollars. Adding the interest at six per cent since their respective maturities, the total principal and interest would amount to more than one-half million dollars. It is said that the state must be held liable for this enormous amount, over and above the twenty-one thousand eight hundred fifty-one dollars and seventy-three cents already mentioned, because the state sold the lands sought to be brought herein, without collecting the district No. 1 levee assessments due thereon, that the state had at one time or another these levee lands in its possession or control, and was charged with the trust to collect out of them the assessments aforesaid, but that the various officers acting for the state allowed the lands to pass from the state into the ownership of individuals without making the collections; that the state has disposed of the property out of which it was the duty of the state as trustee to make the trust funds; and that although in so doing the state actually collected none of the levee assessments except as to the twenty-one thousand eight hundred fifty-one dollars and seventy-three cents, it is nevertheless liable therefor upon the same principle applicable to an individual trustee who has negligently or deliberately allowed the property out of which the trust interest was to be produced, to get out of his possession or control.

Whether it was the intention of the court in 77 Miss. to hold with the contention that the state is unconditionally liable, for all the No. 1 levee assessments which should have been but were not collected, we are unable to determine with certainty from the said opinion. It may be that there was in the minds of the court that the state, by a cross-bill against its codefendants in this suit, could compel against the lands in the hands of the then owners the payment of the uncollected assessments, and thereby save itself of the effects of an absolute decree in this suit. If that was not what the court had in mind, then certainly it must have intended to hold that the state would have the right to take some appropriate action against the lands and thereby relieve itself of loss on account of its trusteeship. These suggestions would serve to account for, and to reconcile, to a large extent, the general language used in the opinion about the liability of the lands for the uncollected assessments; and the trial court took that view. But, being in uncertainty what exactly the court meant to hold with reference to the liability of the state for the uncollected assessments, we shall assume for the purposes of the further consideration of the state's liability for said uncollected assessments, that the court did intend to hold the state liable therefor, with the right of the state to proceed against the lands to enforce the said assessments, and that if that holding had been promptly followed up by complainants, a decree would have been thereafter entered against the state in complainants' behalf for all said assessments which the officers of the state should have collected, but did not collect. That was years ago. At that time the state, having paid the demand, could have pursued the lands and all the several then owners thereof and by proper proceedings against the lands could have recovered out of those lands a large part, at least, of the amounts that ought to have been previously collected from them for these levee assessments, and thus the state could, to a considerable extent, have reimbursed itself and restored to its treasury the large sum that it was required to pay to complainants.

But a generation has passed; and what is the situation now? If the state is now required to pay the staggering sum mentioned and should attempt to recover it from the lands in the hands of the present owners, the state would be met by the owners with the defense of laches or staleness, and from such a defense there would be no escape even by the state; for there the state would not be suing as a sovereign to enforce or protect a public or governmental right; but because of its occupancy of the position of a pecuniary trustee, the suits would be on account of the pecuniary obligations incurred as such trustee to private parties, in which case the defenses of laches and staleness may be interposed against the state as effectively as against an individual complainant.

The last assessment due on these lands, applicable to complainants' bonds, was that for the year 1882 — fifty years ago. By section 8 of the Act of March 17, 1871, the charge placed on the land for the levee purposes therein mentioned, and to secure the bonds sued on in this case, amounted to an annual charge of ten cents per acre on unimproved land, or one dollar and twenty cents per acre for the twelve-year period therein fixed, and sixty cents per acre annually on improved or cultivated land, or seven dollars and twenty cents per acre for the twelve-year period. And yet for years thereafter, large bodies of this and similar land were sold for six and eight cents per acre, and the state regularly sold its own land of the same character, title to which it had received direct from the general government, as well as that which it held as forfeited for ad valorem taxes, at twenty-five cents per acre. If it had not done so, the general settlement and development of that section would have been retarded for years. Small wonder, therefore, that the state did not undertake the stagnating process of attempting to collect the large and unreasonable charges placed on this land by the mischievous piece of legislation passed as aforesaid in 1871, and which was typical of much other of the same general character enacted in those dark and unhappy days.

The state proceeded to place these lands, and all of them, in the hands of private owners at the best reasonable price it could get, so that the large territory so vitally affected could be reclaimed and put to cultivation and improvement, and the result of this policy has been that what was then to a large extent a dismal expanse, covered with brakes and matted underbrush, abounding in bogs and sloughs, and pervaded with miasma and malaria, has now, by industry and determined endurance, been converted into a broad region of highly developed farms, with roads, schoolhouses, and churches. Those who reclaimed this land from the wilderness and swamp have nearly all passed away, and their children and grandchildren remain in their place. Thousands of acres have been sold and transferred one to another by warranty after warranty; mortgages and deeds of trust constituting the chief basis of the credit structure of that vast agricultural section have been issued in numbers and amounts beyond the possibility of total estimation; bonds for public improvements have been issued; towns and villages follow upon each other every few miles. And these are the lands against which the state would have to go to recover the levee assessments now fifty years old, and of which none of these people have ever even heard, assessments which in aggregate amount, not including interest, is more than the great majority of the land was worth when the settler first went upon it, and which even now when the more than fifty years' interest is added, would equal in many cases the present value of the land even in its improved condition. There are other elements, such as the loss of records, the death of all witnesses who would know of the long forgotten facts, the impossibility of recoupment on warranties, the loss of valuable securities, the destruction of credit and of confidence in titles, these are some of the things; so that the statement, without more, of such an intolerable proposition, demonstrates that the state would not now, at this late and impossible day, be permitted to recover a penny against these lands for the account of these antiquated bonds. The delay has been utterly too long.

And because the delay to bring this cause to a final determination precludes the state from any recoupment if it should be now required to pay the enormous sum demanded, the question inevitably arises, whether the complainants who were direct actors in the delay that has ensued should be allowed to prevail, and thereby leave the entire loss on the state, or whether instead thereof the doctrine of laches or staleness should be applied in the present case, and recovery, except as to the admitted sum, be denied on that ground.

The doctrine of laches or staleness, which is constantly growing in favor among the courts of this country, is well established and clearly recognized in this state. It was applied, and some of the leading authorities on the subject were reviewed in Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307; and as disclosed by that case, it has its operation not only as to delay in instituting the suit, but also in the failure thereafter to bring the case to a final determination. The institution of a suit does not prevent the operation of the rule of laches; the failure to prosecute to a conclusion within such time as reasonable diligence could and would have accomplished an end of the litigation will have the same effect as if no suit had ever been brought. 21 C.J., pp. 217, 218.

No precise definition of laches or staleness is possible to prescribe, nor may any brief resume be made which will embrace all the considerations which are to be taken into view in the application of the rule; all the authorities agree that each case is to be determined according to its own particular circumstances. An approximation is found, however, in the general statement that when such great delay has transpired, that the conditions and circumstances surrounding the defendants and those whose interests would be inevitably affected, have become so changed as to seriously impair such advantages as they might have had, or will subject them to hardships that would have been avoided, if the cause had been seasonably brought to a conclusion, the court will not interfere to give relief. 4 Pomeroy Eq. Jur., secs. 1440-1457; 21 C.J., pp. 210-258; Comans v. Tapley, supra.

The language both of the opinions and the texts often contain references to negligence as an element in laches or staleness. This, however, is because usually negligence is what caused the delay, but the rule and the equitable policy involved therein are concerned not so much with the cause of the delay as with the fact that it has happened, and with the results that the delay has produced. And in applying the rule of laches and staleness in this case, as we have determined it is our duty to do, we prefer no charge of negligence against any of those who now or in the past have been concerned in it, either as litigants or counsel. Nevertheless the delay, intolerable in the extent thereof, is undeniable, and the disadvantageous results thereof have already been in part mentioned. For instance, after the cause was finally got to issue, it was referred to a master, and he made a partial report in 1910. Nothing further appears from the master until 1927, when another partial report was made by another master. It is shown that the first master died, and, seventeen years elapsed before anything like a final report was made. It was not until two years thereafter, in 1929, that the second master was able to respond to the exceptions filed to his report, and in his said response we note that he stated that there were in the case some further references to be made to him as master, "if he should so long live."

It may be, and we think it probable, that what has had more to do with the delays of this case than anything else has been the many changes of personnel in the attorney-general's office in the more than forty years since this litigation was instituted, and that because of the almost unlimited range of facts and of the enormous volume of the records that have been involved, that office has asked and has received undue indulgence from complainants in regard to the various steps in the progress of the cause; but the state is not to be bound by that course of conduct, and this for the same reason which makes it immaterial that the state has not expressly raised the defense of laches and staleness at any stage of this case, although its counsel have insisted upon it after the point was raised by this court.

The reason why the state is not bound in the matter aforesaid by the indulgences extended to its counsel, and at the same time the reason why it has become the duty of the court to raise the point aforesaid, is, of course, that when an office or attorney appears, representing the state or a county in litigation, he must actually take care of the public interests involved therein, and which he undertakes to serve, and if he does not and this becomes apparent to the court, the duty of the court then is to intervene and see to it that in some appropriate and effective way the public interests are protected. This principle was affirmed and pronounced in strong terms in Robertson v. Bank, 116 Miss. 501, 508, 77 So. 318. This has always been the law; every person dealing with officers and attorneys for the state is charged with knowledge of it, and the force and extent of its operation; the principle would seem to be obvious, and we, therefore, do not enter upon any prolonged discussion of it, except to add one final observation: Although the duty of courts in respect to the progress of suits wherein the state or county is a party is as above stated, nevertheless it is urged that this court is powerless here to take the course which that duty directs in regard to the question of laches even where the state is a party, as here, because that question was not expressly raised in the lower court. True, that question must ordinarily be raised in or by the lower court, and certainly so if the laches apparent upon the record be deniable or explainable. But here we have a case over forty years in court, nearly twenty years in the hands of masters and no entirely complete report or decree yet made. The matter speaks for itself, we need no formal introduction to it by the lower court, — the laches is incontrovertible upon that which is equivalent to judicial knowledge, whatever the lower court may have held upon it had the point been expressly raised therein. It has too long been the settled rule in this state to permit any question now upon it, that when a record brought before us introduces a fatal infirmity, and that infirmity plainly cannot be obviated were opportunity given to an attempt to do so, this court must act upon that infirmity although not raised or noticed in the trial court. Wilson v. Railroad, 77 Miss. 714, 720, 28 So. 567, 52 L.R.A. 357, 78 Am. St. Rep. 543; Gabbert v. Wallace, 66 Miss. 618, 620, 5 So. 394; Burke v. Shaw, 59 Miss. 443, 447, 42 Am. Rep. 370.

A judgment or decree against the state for the payment of money, although entered by its highest court, is not enforceable except by a legislative appropriation. If the case is clear, and there is no available defense to the liability, the court should enter the judgment, although it may be that at the time being it will meet with legislative disobedience. But in order to render such disobedience inexcusable, and therefore improbable, any such judgment should go to the legislature as an unreserved and solemn recommendation by the court that the liability is fair and free from serious doubt, and that there are no valid defenses known to the law or recognized in equity which the court has failed to discern and to apply. If this were not the course of conduct to be pursued by the court in rendering money judgments against the state, it had as well not render them at all.

We are authorized and directed by ETHRIDGE, P.J., to say that he concurs in all of the foregoing opinion except the paragraph which holds the state liable for the twenty-one thousand eight hundred fifty-one dollars and seventy-three cents therein mentioned; and by ANDERSON, J., and SMITH, C.J., that they concur in that particular paragraph and in the holding thereof. The result is that the entire of the opinion, and the judgment directed to be entered, have the concurrence of the majority of the court.

The decree of the chancery court is in part affirmed and in part reversed, and the cause is remanded with directions to enter a final decree in complainants' favor against the state for the sum of twenty-one thousand eight hundred fifty-one dollars and seventy-three cents, and to dismiss the bills as to all other relief. The chancery court will make such adjudication in the matter of costs as may seem to the court equitable and just.

Affirmed in part, reversed in part, and remanded with directions.