Mississippi Supreme Court, 1937

Fighting Bayou Drainage Dist. v. Leflore County

Mississippi Supreme Court · Decided November 22, 1937 · Ethridge, Smith

177 So. 6; 180 Miss. 223; 1937 Miss. LEXIS 102 (Southern Reporter)

Counsel

H.C. Mounger, of Greenwood, for appellant. This is an appeal from the chancery court of Leflore County, Mississippi. It involves the application of Section 5085, Hemingway's Code of 1927. Chapter 267, Laws 1924, provides that Sixteenth Section land shall be liable to assessment for drainage taxes. Code of 1930 provides for the same. Under Section 5085, Code of 1927, the lessee was to pay the drainage assessments. Under Section 767, Code of 1930, it is provided that the drainage assessments shall be paid in the discretion of the board of supervisors either by the lessee, or by the board of supervisors, but the liability for such drainage taxes shall be fixed by the lease contract when said lands are leased. In this case the lands are included in the Fighting Bayou Drainage District and were leased. The rent was collected and the amount of drainage taxes were collected during the years 1928, 1929, 1930 and paid to the drainage district. This was under the lease governed by Code of 1927. In the subsequent contracts the drainage assessments were not provided for in the contracts by the board of supervisors, enough money collected from the lessee to pay all said assessments, but none of it has been paid to the drainage district. Where one has in his hands money which in equity and in good conscience belongs and ought to be paid to another, an action for the money had and received will lie for the recovery thereof. 15 Am. Eng. Encyc. of Law, page 1096; Patton v. Pinkston, 38 So. 500; Shields v. Thomas, 71 Miss. 260 . This land was leased to G.W. Manning for five years beginning January 1, 1927, for thirty-six hundred dollars for the year 1927; thirty-eight hundred dollars for 1928; four thousand dollars for each of the years, 1929, 1930, 1931. This lease contained a provision that all taxes paid by Manning the lessee in any year of this lease on said lands shall be deducted from the rent note of that year. Drainage taxes are included in the word taxes. This lease recites that it was done with the advice and consent of the board of supervisors to be obtained by an order entered upon the minutes of the board. It was executed by the Superintendent of Education and Manning. The board of supervisors recognized the validity of these rent contracts, collected the money under them, recognized that the drainage assessments should be paid, recited that they had the money to pay them up to that time, but never paid a dollar of them. Under Section 5085, Code of 1927, which governed the first years the lessee was to pay the drainage assessments. It was a part of his rent contract. It was an obligation imposed by law. The board recognized this and provided for it, by incorporating the provisions that the lessee was to be allowed credit for all taxes paid. In the leases under Code of 1930 the liability should have been fixed by the board of supervisors in the lease contracts. Failing to do this the board of supervisors assumed the payment. There is no escape from this conclusion. The fact that the board of supervisors may not have the money on hand now, or that they may have used it for some other legitimate purpose, does not exonerate them. Nelson E. Taylor, of Greenwood, for appellant. Appellant shows that under the statute it becomes a beneficiary under any leasehold or rental agreement entered into between appellee Leflore County and a third party, (here appellee G.W. Manning, lessee) by which Sixteenth Section School lands lying within the boundaries of both Leflore County and Fighting Bayou Drainage District; Chapter 167 of the Laws of 1924, under which the five year lease contract entered into between L.S. Rogers, Superintendent of Education for Leflore County, and G.W. Manning on December 22, 1926, becomes a part of that contract. It is respectfully submitted that the only reasonable construction that can be placed upon the lease agreement is the one made by the parties themselves in first, the written contract, second, the statute under which it was made, and third, the order on the minute book of the board of supervisors, and such a construction is the reasonable construction, because it then fixes a definite charge for the use of the land to be paid by the lessee, whereas any other construction, would leave the liability to be paid a vague and indefinite thing, that no lessee of ordinary intelligence would assume. Appellant respectfully shows, therefore, that the drainage taxes were paid by lessee Manning for each of the years 1927, 1928, 1929, 1930 and 1931, but that instead of paying the drainage taxes to the tax collector, he paid them to the appellee Leflore County in his payment of the gross amounts called for in his rental agreement, and that appellee Leflore County, having received said drainage taxes, is now due to pay the same over to appellant, as charged in its amended bill of complaint. As to the lease contracts for the years 1932 and 1933, the record does not show any ratification by the board of supervisors by spreading the rental contracts upon their minutes. The record does show that the lease contracts for each of the years 1932 and 1933 were simple promissory notes executed by said Manning lessee, and given in payment for his rent for each of said years. The record shows that there was no liability fixed in the rent contract as to whether Manning should pay the drainage taxes or whether lessor Leflore County should pay them, although the law as to the leasing and letting of Sixteenth Section school lands had been changed by imposing a duty upon the board of supervisors and the superintendent of education to fix the liability for the drainage taxes in the lease agreement, as provided in Section 6767 of the Mississippi Code of 1930. In the leasing of said lands for the years 1932, 1933 and 1934, this provision of the statute was completely ignored and no liability was fixed against the lessee for the payment of the drainage taxes, neither did the lessor assume the liability, and neither party has paid the drainage taxes for either of said years, but the lessee Manning has paid his rents for each of said years, has had the benefit and use of the lands for each of the years, and the lessor Leflore County has benefited by the collection of the rents for each of said years, while the appellant Fighting Bayou Drainage District of Leflore and Sunflower Counties, Mississippi, remain without payment of the drainage taxes for each of said years, and the said Sixteenth Section school lands, although greatly benefited by improvements of the Drainage District, resulting from the $150,000.00 of bonds, the principal and interest payments of which must be met, have escaped wholly bearing their portion of the burden of drainage taxes for each and every year since 1927. Appellant respectfully maintains that the lessor in failing to fix the liability for the drainage taxes for each of said years 1932 and 1933, intended thereby to pay said drainage taxes for each of said years and that the said lessor Leflore County should pay said drainage taxes for each of said years. The lease for the year 1934, although written in a more extended form, is not shown in the record to have been approved by the Board of Supervisors by spreading the same upon its minutes, and the lessor in making such agreement again wholly failed to fix the liability for the drainage taxes as provided for by Section 6767 of the Mississippi Code of 1930, and in its amended bill of complaint in this cause in the prayer thereof, this appellant requested that the liability for the drainage taxes for 1934 be fixed by the court, but this was denied by the Chancellor summarily dismissing the bill of complaint. Howie v. Panola-Quitman Drainage District, 151 So. 156. The decision of the Honorable Chief Justice Smith in the case of Washington County v. Riverside Drainage District, 131 So. 644 , is very much in point and applicable to the issues as to the drainage taxes for the years 1928 to 1931 inclusive. Means Johnston, of Greenwood, and Berry D. Brown, of Sidon, for appellees. It is our contention that inasmuch as the lease contract in question was executed prior to the adoption of the Code of 1930, that Chapter 267 of the Laws of 1924 controls as to the lease contract executed on December 22, 1926, rather than Section 6767 of the Code of 1930. Washington County v. Riverside Drainage District, 129 Miss. 102 , 131 So. 644 . If the Superintendent of Education of Leflore County, Mississippi, had agreed in the contract of December 22, 1926, to pay said taxes, it would have been in the teeth of Section 2 of Chapter 267 of the Laws of 1924; and if the Board of Supervisors of Leflore County had attempted to fix the liability on the lessor instead of the lessee, it would have been in the teeth of Section 2 of Chapter 267 of the Laws of 1924, because Section 2 of said act specifically provided that all such taxes shall be paid by the lessee or his grantees or assigns; and any attempt to bind said rent for said taxes would have been illegal and unwarranted. The bill of complaint alleges, and the answer admits, that the Superintendent of Education of Leflore County, Mississippi, leased said lands to the said Manning annually in each of the years 1932, 1933 and 1934; in other words, that there was a separate lease contract for each of said years, and alleges that the Board of Supervisors of Leflore County, Mississippi, in each of said years, failed to fix the tax liability under the provision of Section 6767 of the Code of 1930, which provides that all such drainage taxes and assessments accruing thereon during such lease shall, in the discretion of the Board of Supervisors, either be paid by the lessee, his grantees or assigns, or by the Board of Supervisors, but the liability for such drainage taxes shall be fixed by the lease contract when said lands are leased. The bill alleges, and the answer admits, that said lands were leased during each of said years, but that the Board of Supervisors of Leflore County, Mississippi, never entered of record an order approving said lease contract or fixing said tax liability; and the bill further alleges that the said Manning, during each of said years, through mistake and error, failed to pay said taxes, and, instead of paying said taxes to the tax collector, he erroneously paid said taxes to the Superintendent of Education, and that the Superintendent of Education, through mistake and error, failed to pay said taxes, but erroneously paid the same into the Sixteenth Section school funds of said county, and that said funds have become, and are now, charged with a trust for the benefit of said district to pay said taxes; in other words, the negligence and failure of the board of supervisors to fix said tax liability created a trust in favor of said taxing district. Counties are political subdivisions of the State, created for the purpose of discharging public duties, and it is settled by numerous decisions of this court that no suit can be maintained against a county for the negligence of its officers unless such liability is created by some statute, expressly or by necessary implication. Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155 , 99 So. 677. A county can have no liability except as authorized, expressly or by necessary implication, by some statute. Counties are political divisions of the state, created for convenience. They are not corporations with the right to sue and be sued as an incident to their being, but are quasi corporations, invested by statutes with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute. Brabham v. Supervisors, 54 Miss. 363 , 28 Am. Rep. 352; Redditt v. Wall, 55 So. 45, 34 L.R.A. (N.S.) 152; City of Grenada v. Grenada County, 115 Miss. 831 , 76 So. 682; Stephens v. Beaver Dam Drainage District, 123 Miss. 884 , 86 So. 641. We cannot conceive on any theory how it is possible for appellant to contend that the negligence of the Board of Supervisors in failing to fix the tax liability for the years 1932, 1933 and 1934 could, under any circumstances, result in a trust for the payment of taxes due said drainage district in each of said years. Lee County v. Payne, 166 So. 332 ; Simpson Co. v. Kelley, 166 So. 532 . Appellee, Leflore County, insists that the Chancery Court of Leflore County, Mississippi, was without jurisdiction to render any judgment against it in this cause, for the reason that the appellant failed to prove that the several claims and demands which it attempted to assert against Leflore County, had been, in the manner required by law, presented to, or rejected by, its board of supervisors. Section 253, Code of 1930, as amended by Chapter 179, Laws of 1932; Covington County v. Morris, 122 Miss. 495 , 84 So. 462; Davis v. Lamar County, 107 Miss. 827 , 66 So. 210; Marion County v. Woulard, 77 Miss. 343 , 27 So. 619; Lawrence County v. Brookhaven, 51 Miss. 68 ; Taylor v. Marion County, 51 Miss. 731 ; Taylor v. Marion County, 51 Miss. 731 ; Polk v. Tunica County, 52 Miss. 422 ; Jackson v. Monroe County, 81 So. 787; Carroll v. State, 165 So. 813 ; Simpson County v. Kelly, 166 So. 533; Brookhaven v. Lawrence County, 55 Miss. 187 ; Board of Sup'rs, Lee County, v. Payne, 166 So. 332 . The appellee Manning was not personally liable to the appellant for drainage taxes. Mickey v. State, 167 Miss. 668 , 145 So. 630 . Appellees next contend that the several sales of the leasehold to the State, which sales are shown in evidence, relieve all of the appellees of all liability to all parties whomsoever, including the state, county and drainage district, on account of non-payment of taxes on the leasehold. McLaran v. R. Moore Co., 60 Miss. 376 ; Carrier Lbr. Mfg. Co. v. Quitman County, 124 So. 437 , 125 So. 416; Washington County v. Riverside Drainage District, 129 Miss. 102 , 131 So. 644 . The appellant may not recover the taxes due it alone by action in which the state is not joined as a party, And this is true, although the sale to the state is void. Carrier Lbr. Mfg. Co. v. Quitman County, 124 So. 437 . The appellant, in its brief, lays great stress and emphasis upon the order of the board of supervisors of Leflore County, entered on April 6, 1931, by which the board apparently attempted to authorize payment of drainage taxes assessed against the school lands for the years 1927, 1928 and 1929. The citation of the case of Bridges v. Clay County, 58 Miss. 817 , indicates that appellant desires to construe this order as a contract between the appellee Leflore County and appellant. It will be observed that no reference to this order appears anywhere in the pleadings and we insist that it is now too late for appellant to depart from the issues raised by the pleadings and predicate its right to recovery upon a proposition which the appellees were not called upon by their pleadings to controvert. Clearly the order is void. In the first place, it does not meet the requirements laid down in Section 255 of the Mississippi Code of 1930, which says: "All demands and accounts against the county shall be audited and allowed or rejected . . . and the order allowing such claims shall be entered on the minutes, specifying the name of the claimant, the amount allowed, the page and particular section of the law under which such allowance is made." The order itself fails to recite the jurisdiction of the board regarding the allowance, and nowhere in the pleadings is it shown that the board was invested with this jurisdiction. Broom v. Board of Sup'rs, Jefferson Davis County, 158 So. 344 ; Adams v. First National Bank, 103 Miss. 744 , 60 So. 770; Jackson Equipment Service Co. v. Dunlop, 160 So. 734 . The order mentioned is in the very teeth of Section 2, Chapter 267 of the Mississippi Laws of 1924, which was operative when the five-year lease contract was executed on December 22, 1926. The contract gave Manning an option to pay his taxes, and the right to have these payments, if made, credited on his indebtedness. He failed to exercise this option, and, therefore, was entitled to no credit on account of tax payments upon the amount of his rental. The Board of Supervisors could not, after the lapse of more than four years from the date of the execution of the contract, invest itself with authority to act for Manning and exercise this option for him, no matter to whom the benefit might accrue, when Manning, having been misled by no person whomsoever, let his option go repeatedly "by the boards." Moreover, the action of the board, taken after the various sales to the state, would have no effect of discharging the sales of the leasehold for the reason that the same had not expired.

Dissenting Opinion

Ethridge, J.,

delivered an opinion, partly concurring and partly dissenting*.

I concur in the holding that the judgment of the court below should be reversed, and also that there is personal liability upon the lessee under section 2 of chapter 267, Laws 1924; but I dissent from the holding that the county is liable, and also from the construction placed upon section 6767, Code T930.

The bill alleges that there was a lease contract entered into between the superintendent of education and the defendant, Manning, and that this contract was approved by the board of supervisors in fact, but they failed to enter it upon their minutes. Both the super *237 visors and the defendant, Manning, admit the execution of this contract, and that it was actually approved hy the hoard of supervisors, hut through some oversight it was not entered upon the minutes at the time that the contract in writing was signed hy the superintendent of education and the defendant Manning; and they admit that Manning went into possession under the said lease, and actually used and worked the land during all the period covered, and had paid rents to the superintendent of education in full for the first three years, and in part for two other years covered by the written lease; and that for the years 1932 and 1933 there was an oral lease for a year in each instance, and that this lease was approved by the board of supervisors, but not entered upon the minutes, and only evidenced by the note taken for the lease money. The amount of the lease so agreed to was paid to the superintendent of education, and hy him paid into the county depository to the credit of township funds where the section is situated.

There can be no question whatever, in my opinion, about the right of Manning to have had the approval entered on the minutes by mandamus or other coercive proceeding at any time after it was actually approved by the hoard of supervisors. There is no doubt, furthermore, in my opinion, that the drainage district could also have coerced the board of supervisors into placing the approval of the contract upon the'minutes, since it was a beneficiary of such lease. The board of supervisors clearly had jurisdiction of the subject-matter, and actually approved the lease, so far as bringing to bear its judgment and discretion upon the matter is concerned; and the only thing unperformed by the board was the ministerial duty of entering the approval upon the minutes. This being true, and it being the legal duty of the board of supervisors to enter such approval on the minutes, and this duty being coercible by legal proceedings, it comes within the principle that equity will consider that as being done which should be done; and this suit *238 being in equity, and equity not being required to compel resort to legal proceedings to confirm the rights agreed upon in the lease, but having the power to act as though it had actually been done, a judgment should have been rendered against Manning for the taxes due the drainage district. This obligation is imposed upon Manning as a personal obligation, under section 2, chapter 267, Laws 1924.

In construing the statute, we must bear in mind the subject-matter dealt with, and the provisions of section 211 of the Constitution, prohibiting the sale of sixteenth section lands. The language of the statute is: “Where such sixteenth section land, or land taken in lieu thereof, shall be held by any lessee, whether his lease shall have heretofore been acquired, or shall hereafter be acquired, all such drainage taxes, and assessments accruing thereon during such lease, shall be paid by the lessee or his grantees or assigns.” It will be noted that the legal duty to pay or to charge is upon the lessee, and not upon the leasehold interest. It is quite possible that a lease might be made of sixteenth section land from year to year, or twelve months at a time; and the lease would expire before the leasehold interest could be sold under tax collector’s proceedings of distress, and the fee could not be sold; consequently, to make the taxes collectible, it was designed to impose a personal obligation upon the lessee to pay them. This is distinguished from the decision in the case of Nickey v. State ex rel., 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, which construed another statute differing in language and purpose from the present statute.

The doctrine that equity regards that as done which should be done is one of the fundamental equitable principles which treats legal requirements which may be coerced in judicial proceedings as having been complied with, without waiting for the circuitous action of courts. The doctrine also applies to certain duties and principles of an equitable nature not strictly coercible at law. In *239 21 C. J., 200, section 190, it states: £ £ The maxim that equity regards as done that which ought to be done has been said to be equity’s favorite maxim. The principle of it is the basis for many forms of equitable relief, and it has been said to be the foundation of all distinctively equitable property rights, estates and interests. It has no application in actions at law. The broad meaning of this maxim is that where an obligation rests upon a person to perform an act equity will treat the person in whose favor the act should be performed as clothed with the same interest and entitled to the same rights as if the act were actually performed.” See, also, 10 E. C. L. 383, section 133; Mississippi Digest, title Equity Key No. 57; Decennial Digests, title Equity Key No. 57.

It seems to me, therefore, that the fact that the lease was not formally entered on the minutes at the time of its execution is not a bar to charging Manning under the lease. So far as he is concerned, he had all the benefit of the contract, occupied and used the land, and could not be heard to say, and he has not attempted to say, that he is not liable therefor, but, on the contrary, specifically admits that he is liable therefor.

But the lease was approved by an order entered at the April term, 1931, at the instance of the superintendent of education, setting forth the lease and the lease agreement, together with the taxes for the several years, and directing and permitting the superintendent of education to pay them out of the rents of the year 1930. In this order, entered upon the minutes at the April term, 1931, it was recited: ££It appearing further that on December 22nd, 1926, said superintendent of education entered into a valid written contract leasing said section to one Gr. W. Manning for five consecutive years beginning with the year 1927, and that said lease provided as follows (quoting from the lease). And that said Manning has paid under said lease for each of said three years rent in the sum of $4,000.00 in cash but that no part has been paid out of said taxes, but that all of *240 said taxes are lawfully due, ’ ’ etc. It was not necessary to spread the contract in full on the minutes, but any order showing* approval of the written contract will suffice.

This is a solemn recognition of the existence and legality of the contract which would perfect it, and the contract itself, so approved, would relate back to the. beginning of the lease term.

The majority opinion, in its holding that Manning was only a tenant at will, cites Bay St. Louis v. Hancock County, 80 Miss. 364, 32 So. 54. In my opinion, that contract decision has no binding authority here for the reason that the contract there treated of was one which the board of supervisors had no authority to make at all. Here the board had full authority to deal with the subject-matter required of it, and the contract was fully performed by both parties, with the exception of part of the money for the lease for the last two years of the five-year period. A contract, although it may require writing for its enforcement prospectively, is cured and valid when it is performed, and even part performance gives equity jurisdiction to administer relief so' as to do justice between the parties. See Lawrence on Equity Jurisprudence, sections 58, 136 and 781.

I differ with the majority opinion as to the construction of section 6767, Code 1930, amending the statute, chapter 267, Laws 1924. The language of the statute, so far as it applies here, reads: “Where such sixteenth section land, or land taken in lieu thereof, shall be held by any lessee, whether his lease shall have heretofore been acquired, or shall hereafter be acquired, all such drainage taxes and assessments accruing thereon during such lease shall in the discretion of the board of supervisors, either be paid by the lessee, his grantees or assigns, or by the board of supervisors, but the liability for such drainage taxes shall be fixed by the lease contract when said lands are leased.”

This statute only changed chapter 267 to the extent *241 of giving the board of supervisors discretion to obligate the board, in making a lease, to pay the taxes, when such agreement would redound to the interest of the township or the drainage district, as against the lessee. If this obligation should have been fixed in the contract, but was not fixed, in the absence of such an agreement the duty remained where it had formerly been placed, with the lessee or occupant of the land, who was getting and enjoying the usufruct of the land.

The statute here being construed is an attempt to divert the sixteenth section funds from school purposes, and for the benefit of the whole township, to the drainage district and the bondholders of such district. The state of Georgia, in donating these lands, or granting them to the government, granted them in trust for educational purposes, and it is -questionable, from the constitutional standpoint, whether that can be legally done. But that question is not presented here, and I do not discuss it. It appears to indicate that there might be such construction of the statute as would save it from questionable constitutionality, where that can be reasonably done.

I think, furthermore, that judgment should have been rendered against Manning, the lessee, regardless of whether the lease was technically valid or not. Under sections 6000, 6001, 6002, and 6004, which sections give public bodies, like the state and its subdivisions, rights of action in all cases where a private person would have the right of action, under similar circumstances. Section 6000 provides that: “ If any person shall unlawfully enter on, and intrude upon or hold land belonging to the state, or take possession of or hold any personal property belonging to the state, such person may be proceeded against by action to be instituted by the district attorney of the district, or by the escheator of the county in a proper case; and on the trial of the issue, the court or jury shall assess damages for rents and profits, and for injury done to the property by the despoilment of the *242 timber or otherwise; and if the trespass complained of be the cutting, belting, girdling, boxing, or otherwise injuring the timber, triple damages shall be recovered.”

In like manner, section 6001 gives a right of action in all cases where property, real or personal, has accrued to the state by forfeiture or otherwise; and 6002 provides that the state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case. It is too clear for dispute that an individual in the case before ns could recover any obligation flowing from the lease, from Manning, and could compel the performance of any obligation flowing therefrom, in a court of equity; or could recover damages in a court of law. Section 6004 provides that any county may have like remedies given to recover any property belonging to it, or damages for injuries thereto; and that action may be brought in behalf of the county either by a district attorney or some one employed therefor by the board of supervisors.

The drainage district is given by law the power to sue and be sued, and has by this gained the right to bring a suit in equity without joining the usee party.

It is argued by the appellee that if there is a personal obligation, it would have to be sued for by the tax collector; but this suit is in a court of equity, which has a right at the suit of any party entitled to sue, to protect his rights and give judgment in accordance with equity, regardless of any usee party, or any party who might be given the power to sue on behalf of the drainage district. Equity looks to the substance and not to the form in such cases, and loves to do justice, not by halves, but by entirety.

I am of the opinion, further, that if by default of the board of supervisors in not entering the contract on the minutes, Manning should escape liability, or if he should become insolvent, so that money could not be realized on judgment, the members of the board of supervisors would in such case be personally liable, but the *243 liability would not run against the township represented by the superintendent and the board of supervisors, who in this case are mere agents of the drainage district and the township for the purpose of leasing the lands.

Opinion of the Court

*233 Smith, C. J.,

delivered the opinion of the conrt.

The appellant is a drainage district in which lies section 16, township 22, range 2 west. The drainage taxes on the land for the years 1928 to 1933, inclusive, have not been paid, and the appellant sought in the court below to recover these taxes either from the county or from Manning to whom the county had attempted to lease the land for those years. The amount of the drainage taxes for those years is set forth, and there is no controversy relative thereto.

A number of interesting questions are presented in the briefs of counsel, but the conclusion we have reached as to one which lies at the threshold of the case will render it unnecessary for ns to consider most of them.

Chapter 267, Laws 1924, provides that sixteenth sections lying within a drainage district “shall he liable for its pro rata share- of the costs, expenses, taxes and assessments relating to said district the same as if owned by an individual, and shall he assessed accordingly, as other lands are assessed. But in case of a sale of such lands for such taxes or assessments, only the title of the *234 lessee holding such lands under lease at the time of the sale shall pass by the sale.

“Where such sixteenth section land, or land taken in lieu thereof, shall be held by any lessee, whether his lease shall have heretofore been acquired, or shall hereafter be acquired, all such drainage taxes and assessments accruing thereon during such lease, shall be paid by the lessee or his grantees or assigns; but all such drainage taxes and assessments accruing on any such lands while the same are not leased shall be paid by the board of supervisors of the county in which such lands are situated, out of any sixteenth section funds belonging to the township in which such lands are located, which may be on hand at the time when such drainage taxes or assessments become due or which may be thereafter at any time collected or acquired. And for the purpose of paying such drainage taxes and assessments, the board of supervisors may borrow all money necessary to pay the same out of any public funds in the hands of the county treasury, or the same may be borrowed from any other person or corporation at a rate of interest not to exceed six (6) per cent per annum. But when any such funds are borrowed, as aforesaid, for the purposes, aforesaid, the same shall be repaid out of the first sixteenth section fund thereafter derived from the sixteenth section lands so taxed and assessed. ’ ’ Sections 1, 2.

In 1926, the county superintendent of education leased the land, which is not situated in a city, town, or village, to Manning for the years 1927 to 1931, inclusive, and Manning went into possession thereof; but no order was entered on the minutes of the board of supervisors directing or approving this lease, consequently, it did not become effective as such under section 6769, Code 1930. It is not necessary for us to determine what rights Manning had thereunder, except to say that at most, if that, he became only a tenant of the land at will. City of Bay St. Louis v. Board of Supervisors Hancock Coun *235 ty, 80 Miss. 364, 32 So. 54. This is not the character of tenancy contemplated by the statute, and it does not shift liability for the payment of drainage taxes from the county to the tenant. The statute contemplates a lease for a definite period of time covering that at which liability for the drainage taxes arises.

Counsel for the appellees say that this suit cannot be maintained under section 253, Code 1930, as amended by chapter 179, Laws 1932, for the reason that the appellant’s claim for . the taxes was not presented to and rejected by the board of supervisors. But there is no merit in this contention; for the bill of complaint alleges the presentation to, and the rejection by, the board of supervisors of the appellant’s claim for the taxes, which allegation the answers to the bill do not deny.

In 1932 the land was verbally leased by the county superintendent to Manning for that year, and the same course was pursued for the two succeeding years. These leases do not relieve the county of liability here for two reasons: (1) Leases for sixteenth section lands, though only for one year, cannot rest in parol; the terms thereof must appear from an order on the minutes of the board of supervisors directing or approving the lease, section 6769, Code 1930; and (2) section 6767, Code 1930, under which the last three leases were made, differs from chapter 267, Laws 1924, in this, in the latter, the payment of the drainage taxes on sixteenth sections is imposed on the lessee thereof; in the former, such taxes “shall in the discretion of the board of supervisors, either be paid by the lessee, his grantees or assigns, or by the board of supervisors, but the liability for such drainage taxes shall be fixed by the lease Contract when said lands are leased.” According to the evidence, the payment of the drainage taxes thereon was not discussed at the time these leases were made nor referred to in the oral contract of lease therefor; consequently, liability therefor remains with the board of supervisors.

The drainage tax for the year 1934 was not due when *236 the bill of complaint was filed, but it prays for an adjudication as to whether the board or Manning is liable- therefor. To respond to this would be to give an advisory opinion, which this court does not do; but, of course, the information requested is easily ascertainable from what we have hereinbefore said.

The record discloses that the income obtained by the county from this sixteenth section for each of the years here involved has been spent for school purposes. This fact is of no consequence; for, under section 6767, Code 1930, drainage taxes may be paid “out of any sixteenth section funds belonging to the township in which such lands are located, which may be on hand at the time when such drainage- taxes or assessments become due or which may be thereafter at any time collected or acquired. ’ ’

The decree of the court below will be reversed, and decree will be rendered here for the appellant against the county for the payment of the taxes for the years 1928 to 1933, inclusive, out of any sixteenth section funds belonging to township 22, range 2 west, which may be now on hand, or which may be hereafter collected or acquired.

Reversed, and decree here.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.