I am of the opinion that the suit should be dismissed entirely as to the state, because the state was not at the time the suit was instituted, and is not now, subject to suit on a demand for the payment of which the legislature had not made an appropriation. It is true that this court, in a former opinion, State v. Woodruff, 83 Miss. 111, 36 So. 79, 37 So. 706, held that the state was a proper party to this suit. But as this court is an intermediate appellate court, on the question raised in this case, the decision does not constitute the law of the case, and we are not bound by it, and it should be overruled, because manifestly wrong. Louisville N.R. Co. v. State, 107 Miss. 597, 65 So. 881. In this case the supreme court, on two former appeals, had upheld the Law of 1908 (ch. 122), divesting a foreign corporation of its right to do business *Page 784 in the state if and when it removed a cause from the state court to the federal court. See 97 Miss. 35, 51 So. 918, 53 So. 454, Ann. Cas. 1912C, 1150; 104 Miss. 413, 61 So. 425.
In the decision of Louisville N.R. Co. v. State, 107 Miss. 597, 65 So. 881, the supreme court held that although the two previous decisions had held the law to be valid, a decision of the supreme court of the United States had held to the contrary, and that the former decisions did not constitute the law of the case. The court said: "Ordinarily, the opinions heretofore rendered would constitute the law of the case, and the matters therein decided would not be again examined by us; but the law of the case rule has no application here for the reason that the right claimed by appellant is one which arises under the constitution and laws of the United States, and with reference to all such questions this court is not one of final jurisdiction, but is simply an intermediate appellate court, from whose decision an appeal lies to the supreme court of the United States, the decisions of which court, in all such matters, are binding upon and must be followed by us. Black's Law of Judicial Precedents, p. 269."
In the appeal of this case from the state court, reported in66 Miss. 298, 6 So. 235, in the supreme court (162 U.S. 291, 16 S.Ct. 820, 40 L.Ed. 973) the ground of the attack upon the decision of the court in that report was based upon the provision of the federal constitution (art. 1, sec. 10) that the states shall pass no law impairing the obligations of contracts. The narrow point upon which the state court had decided that the bonds were void, was that they were payable in gold coins, the state court holding that there was no authority under the act to issue bonds payable in gold, or anything except lawful money of the United States. The clause of the United States constitution prohibiting states from passing laws impairing the obligations of contracts being the basis of the federal jurisdiction, it was, of course, a federal question, and the decisions of the federal court upon *Page 785 that question is final, and any state decision contrary to the federal holding upon the proposition involved is only the holding of an intermediate appellate court, and we are not bound by any holding of this court involving such question. The decisions in the former appeals of this case, under which the state court held that the state was a trustee, and suable as such, because of the taking away by the legislature of the right to sue the officers charged with the administration of the law involved, are contrary to the federal decisions, and as the decisions were predicated upon an erroneous conception of the impairment of the obligations of contract clause of the federal constitution, we should not follow them. I shall proceed to show that under the federal law the state is not suable unless it consents to the suit; and will show by a Mississippi statute that there was no authority to sue when this suit was instituted, and that there has been no authority since said time.
In 59 Corpus Juris, 306, section 462, it is stated: "A state's consent to be sued is not a contract, and it can be repealed or modified at any time at the discretion of the state, even though pending suits are thereby defeated. When the consent is withdrawn the jurisdiction of the court in which the case is pending is at an end, and the suit falls to the ground." In notes to this section the author cited South North Ala. R. Co. v. Alabama,101 U.S. 832, 834, 25 L.Ed. 973; Beers v. Arkansas, 20 How. U.S. 527, 15 L.Ed. 991; Ex parte State, 52 Ala. 231, 23 Am. Rep. 567; McDowell v. Fuller, Warden of Michigan Reformatory at Ionia,169 Mich. 332, 135 N.W. 265; Williamson v. Richards, 158 S.C. 534,155 S.E. 890; State v. Murray et al., as State Dispensary Commission, 79 S.C. 316, 60 S.E. 928, affirmed Murray v. South Carolina ex rel. Ray, 213 U.S. 174, 29 S.Ct. 465, 53 L.Ed. 752.
In So. No. Ala. R. Co. v. Alabama, supra, the state had permitted itself, by a statute, to be sued, and had authorized the auditor to draw his warrant on the treasurer to satisfy the judgment; and made it the duty of *Page 786 the treasurer to pay the warrant so drawn out on the state treasury. The obligation involved in the suit accrued while this statute was in force, and while the suit was pending, the state repealed the law. The state moved to dismiss the cause, and it was dismissed by the Alabama supreme court, and appeal was taken to the supreme court of the United States, where it was contended that the state having had, when the debt was contracted, a provision by which it could be sued, and by which money could be collected to satisfy the debt, the repeal of the statute was inoperative and void so far as the demand of the plaintiff was concerned. Chief Justice WAITE, speaking for the supreme court, said:
"This case, like that of Memphis C.R.R. Co. v. Tennessee [101 U.S. 337, 25 L.Ed. 960], supra, presents the question of the constitutionality of a law taking away the right to sue a state on its contracts. The constitution and laws bearing on the question are much the same in Alabama as in Tennessee; but in Alabama it was provided `that if judgment should be rendered against the state, it was the duty of the comptroller, on the certificate of the clerk of the court, together with that of the judge who tried the cause, that the recovery was just, to issue his warrant for the amount, but no certificate could issue until six months after the recovery of the judgment.' Code 1867, section 2536. It was also the duty of the treasurer to pay all warrants drawn on him by the comptroller under the authority of law (Code, section 422); but the constitution, in force then and now, provided in express terms that no money should be drawn from the treasury but in consequence of appropriations made by law. Const., 1834 and 1870, art. 2, sec. 24.
"The proceedings in this case were begun while these laws were in force; but before final hearing the laws were repealed, and thereupon, on motion of the state, the suit was dismissed for want of jurisdiction. The supreme court affirmed this decision; and the question is, therefore, directly presented by this writ of error, whether *Page 787 the repealing statute is valid and constitutional as against this plaintiff in error, so far as it affects the present cause of action, which accrued while the right to sue existed.
"We are unable to see any substantial difference between this case and that of R.R. Co. v. Tennessee, supra. Under both the Tennessee and Alabama statutes the courts are made little else than auditing boards. If funds are not voluntarily provided to meet the judgment, the courts are not invested with power to supply them. In Alabama, a warrant for the payment may be secured, but the state may stop payment by withholding an appropriation. Perhaps the judgment creditor may take one step further towards the collection in Alabama than he can in Tennessee; but both states may refuse to pay, that is, may refuse to make the necessary appropriation, and the courts are powerless to compel them to do so. In neither state has there been granted such a remedy for the enforcement of the contracts of the sovereignty as may not, under the constitution of the United States, be taken away."
In Beers v. Arkansas, 20 How. 527, 528, 15 L.Ed. 991, it was held that it is an established principle of jurisprudence in all civilized nations that a sovereign state cannot be sued in its own courts, or in any other, without its consent and permission; but it may waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. As this permission is voluntary, the sovereignty may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. In exercising this latter power, the state violates no contract with the parties; it merely regulates the proceedings in its own courts. That case was an action of covenant, brought in the circuit court of the state of Arkansas by Beers to recover interest due on bonds issued by the state. The suit in the state court was dismissed, and the judgment affirmed by the supreme *Page 788 court of the state. Chief Justice TANEY, speaking for the court, said:
"This was an action of covenant, brought in the circuit court for Pulaski county, in the state of Arkansas, to recover the interest due on sundry bonds issued by the state, and which the state had failed to pay according to its contract.
"The constitution of the state provides, that `the general assembly shall direct by law in what courts and in what manner suits may be commenced against the state.' And in pursuance of this provision, a law was accordingly passed; and it is admitted that the present suit was brought in the proper court, and in the manner authorized by that law.
"The suit was instituted in the circuit court on the 21st of November, 1854. And after it was brought, and while it was pending in the circuit court, the legislature passed an act, which was approved on the 7th of December, 1854, which provided, `that in every case in which suits or any proceedings had been instituted to enforce the collection of any bond or bonds issued by the state, or the interest thereon, before any judgment or decree should be rendered, the bonds should be produced and filed in the office of the clerk, and not withdrawn until final determination of the suit or proceedings, and full payment of the bonds and all interest thereon; and might then be withdrawn, cancelled, and filed with the state treasurer, by order of the court, but not otherwise.' . . .
"The objection taken to the validity of the act of assembly cannot be maintained. It is an act to regulate the proceedings and limit the jurisdiction of its own courts in suits where the state is a party defendant, and nothing more.
"It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, *Page 789 and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.
"Arkansas, by its constitution, so far waived the privilege of sovereignty as to authorize suits to be instituted against it in its own courts, and delegated to its general assembly the power of directing in what courts, and in what manner, the suit might be commenced. And if the law of 1854 had been passed before the suit was instituted, we do not understand that any objection would have been made to it. The objection is, that it was passed after this suit was instituted, and contained regulations with which the plaintiff could not conveniently comply. But the prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the state consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards, if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the state, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this latter power, the state violated no contract with the parties; it merely regulated the proceedings in its own courts, and limited the jurisdiction it had before conferred in suits when the state consented to be a party defendant. *Page 790
"Nor has the state court, in the judgment brought here for review, decided anything but a question of jurisdiction. It has given no decision in relation to the validity of the contract on which the suit is brought, nor the obligations it created, or the rights of parties under it. It has decided, merely, that it has no right under the laws of the state to try these questions, unless the bonds given by the state are filed. The plaintiff refused to file them pursuant to the order of the court, and the case was thereupon dismissed, for want of jurisdiction in the court to proceed further in the suit. There is evidently nothing in the decision, nor in the act of assembly under which it was made, which in any degree impairs the obligation of the contract, and nothing which will authorize this court to reverse the judgment of the state court."
In the case of Ex parte Alabama, 52 Ala. 231, 23 Am. Rep. 567, the supreme court of Alabama discussed the question (page 571 of Am. Rep., beginning at the bottom of the page): "All obligations or liabilities resting upon the state, being creations of the legislative power of the state, it is the good faith of the state alone on which reliance is placed to perform the obligation or discharge the liability. Legal remedies, or their efficacy in enforcing the obligation or liability, are not contemplated as in cases of contracts between individuals. These are vain and useless against the state without the concurrence of the legislative power. Statutes are often passed permitting suits against the state. Such statutes are matters of grace, confer privileges, — they do not create rights, and are always construed like other statutes, conferring privileges or exemptions on the citizen. The power to withdraw is commensurate with the power to confer, and when the privilege is withdrawn the citizen is remitted to the condition in which he stood when it was conferred. Many illustrations of the principle are given by Judge COOLEY, in his work on Constitutional Limitations, and among others he mentions a statutory right to have cases reviewed on appeal which may be taken away by a repeal *Page 791 of the statute, even as to causes which had been previously appealed. Cooley's Const. Lim. 382."
See, also, Memphis C.R. Co. v. Tennessee, 101 U.S. 341, 25 L.Ed. 960, in which it was held that the right to sue which the state of Tennessee once gave its creditors, was not, in legal effect, a judicial remedy for the reinforcement of its contracts; and the obligations of its contracts were not impaired, within the meaning of the prohibitory clause of the constitution of the United States, by taking away what was thus given.
See, also, Baltzer v. North Carolina, 161 U.S. 240, 16 S.Ct. 500, 40 L.Ed. 684; Bank of Washington v. Arkansas, 20 How. 530, 15 L.Ed. 993.
It will thus be seen that the supreme court in former appeals was mistaken about the impairing of the obligations of contracts by repealing the act of 1871, and the act of 1876, by the act of 1884 (Laws 1884, ch. 174, p. 184). Neither of these acts gave a right to sue the state. Each of them gave the right to sue the levee commissioners under the first act, and the state auditor and treasurer under their bond by the second act.
At the time of repeal, and also at the time of the institution of this suit, there was no right to sue the state on any demand where the legislature had not made an appropriation, and given the auditor of public accounts authority to issue a warrant, and have the same paid out of the money so appropriated. Under the Revised Code of 1871, the state could be sued as an individual could be; but the state, during the existence of that statute, had not, in fact, assumed any liability, nor could any be implied on the state from the acts referred to in the former decisions. By chapter 1 of the Code of 1880 it is provided that the Revised Code should consist of the acts named in that chapter, among which is named, "An act in relation to suits against the state."
It was also provided in the said chapter in section 3, that "from and after the said first day of November, 1880, all acts and parts of acts, the subjects whereof are *Page 792 revised, consolidated and reenacted in this Revised Code, or repugnant to the provisions contained therein, shall be, and the same are hereby repealed, subject, however, to any express regulations relating thereto, which may be contained in this code."
There is nothing in the code specially contradictory to the act in relation to suits against the state.
Chapter 74, Revised Code of 1880, is the act in relation to suits against the state, and it is provided in section 2641 that "any person having a claim against the state of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may bring suit therefor against the state, in the court having jurisdiction of the subject-matter, which holds its sessions at the seat of government of said state; and, if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be."
This section has been carried forward in all of the subsequent codes in substantially identical language. It has been construed to mean that suits can be maintained against the state only upon claims which the auditor is empowered to audit. State v. Dinkins,77 Miss. 874, 27 So. 832; Hall v. State, 79 Miss. 38, 29 So. 994; Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281, in which it was held that the chancery court had no power to decree what the state should pay for the alleged breach of contract with reference to claims against the state which the auditor may not allow.
The Act of 1884, chapter 174, page 184, repealing the Laws of 1871 and 1876, recites: "Whereas, The time fixed by law for the collection of the taxes assessed against the lands embraced in the levee district known as District No. 1, has expired, and the further collection of said taxes has been suspended by the tax collectors in said District No. 1 in accordance with laws of the state of Mississippi, *Page 793 creating said levee board of District No. 1, and the various officers thereof; and
"Whereas, The further existence of the said levee board of the state of Mississippi, District No. 1, as a body corporate, can be of no further good nor benefit, nor furnish further protection to the said lands embraced in said district;" therefore, the legislature enacted sections 1 and 2, providing for the repeal of the act, and dissolution of the powers and obligations conferred upon the officers therein contained.
In section 3 it was provided that the auditor of public accounts, as state auditor, may receive the bonds and coupons of said former levee district No. 1 in the redemption or purchase of lands heretofore sold, or for the payment of district No. 1 levee taxes, "to the extent that said levee taxes are now due and unpaid, for all years preceding, up to and including the year March 17, 1883."
The act so repealing does not prohibit the parties holding bonds or coupons unpaid, from purchasing lands with them which have been sold for the nonpayment of the taxes.
The Act of 1871, creating levee district No. 1, provides, in section 8, that for the purpose of building, repairing, constructing, and maintaining the levees and works mentioned in the act, and for carrying into effect the object and purposes of the act, that a uniform charge and assessment of two per cent per annum, "on the value of every acre of unimproved and improved land, and cultivated lands in said levee district, is hereby fixed, levied and made, which shall continue and be collected in each and every year for the period of twelve successive years from the date of this act, and shall be due and payable, annually, on or before the first day of September in each year for said period, and the valuation of every acre of unimproved land so taxed is hereby fixed for the purposes of this act at five dollars, except Sunflower and Tallahatchie counties, which shall be three dollars, and every acre of improved and cultivated land at thirty *Page 794 dollars, except Sunflower and Tallahatchie counties, which shall be twenty dollars, and every acre of land improved and fenced, which shall not be cultivated at fifteen dollars, except Sunflower, and Tallahatchie counties, which shall be ten dollars per acre: Provided, That as soon as such unimproved lands shall have been improved, and said uncultivated lands shall have been put in cultivation in any year, the same shall be valued for the purposes of this act at thirty dollars per acre. The intention of this act in its exercise of the taxing power, being that every acre of land cultivated in any year during the period of taxation, shall be valued at the maximum assessment and made liable to taxation accordingly; and in all assessments made, the land described as cultivated shall be held to be such, when a crop shall have been pitched thereon, or the same shall have been used in anywise for production, or for any other use in the year, for which the assessment shall be made."
It will be seen that this act fixes the fund from which the bondholder is to receive his money, and limits it to the period of twelve years, which had fully expired when the Act of 1884, repealing the law, was enacted. The bondholders had no right to payment except from funds collected, or due to be collected, within said period of time. By section 10 of the act it provides, among other things, "And should any of the said charges and assessments not be collected as hereinbefore provided, then the holder of any bond or obligation of said board, which may be due and unpaid, may apply to the judge of the circuit court, or of the chancery court of any district included in the levee district, for a mandamus directed to said board, by which mandamus said board shall be ordered and compelled to proceed to have collected and paid over said charges and assessments, as herein provided, or instead of said mandamus, the said judges may, in their discretion, appoint one or more special commissioners, with authority to collect and pay over said charges and assessments, and for the collection of said *Page 795 charges and assessments; the said commissioners, so appointed, shall have all the powers given by this act, and shall proceed in the same manner, as by this act prescribed, to the collectors of said board, for the enforcement and collection of the same; and such commissioners shall, before they act, give bonds in proper penalties, with good and sufficient securities, to be approved by said judge; and such commissioners shall be allowed for their services, when performed, a sum not exceeding one per cent on the amounts collected and duly paid over by them."
It will be seen by this section that the bondholders are given a remedy to coerce the collection of the taxes provided in the act, for the payment of their bonds; and they might have resorted to that remedy to secure their funds, and their rights are measured by the said act. By the act and various provisions the officers charged with the duty of administering the act are made subject to suit. In other words, the statute prescribed ample protection for the bondholders, under that act.
No right, therefore, was impaired by the repealing act of 1884, above referred to. If the repealing act impaired these rights in a substantial way, so as to impair the enforcement thereof, the act as to them would have been void, but would not be void in other respects.
The Act of 1884 gave to them the rights to present their bonds, if they held any, to the treasurer and auditor in purchase of land, or in redemption of lands, and this was the only right that they then had. They could have proceeded against the auditor and treasurer under their bonds, under the law of 1876, for any default which impaired or injured their rights in any respect. The decision, therefore, in the former cases, holding the state as trustee, was erroneous, and should be overruled.
In chapter 108 of the Laws of 1876, page 174, appointing the auditor of public accounts and the state treasurer in the place of the former commissioners of levee board district No. 1, expressly provides that "they shall be responsible *Page 796 on their official bonds for the safe-keeping and proper management of the levee funds of said district, and discharge all the duties of levee board, secretary and treasurer of same, and all laws and parts of laws touching the levee fund of District No. 1, the collecting and disbursement of the tax levied on account of said district, shall operate and be as binding upon them as upon the commissioners, secretary and treasurer of said district. It being the intent and purpose of this act to substitute the auditor of the state and the treasurer thereof, ex officio, as such commissioner, secretary and treasurer, in place and instead of the board of levee commissioners, secretary and treasurer of Levee District No. 1, now in office."
The state, in this act was careful to protect the bondholders by rendering the auditor and treasurer, substituted as commissioners, liable upon their official bonds. The bonds and suit against said officers being specifically made a remedy, none other could be implied, and these officers were subject to suit on their bonds for any misconduct or mismanagement to the prejudice of the bondholders. It also provided that the sheriffs of the counties composing the district should be liable on their official bonds for any failure to collect the tax or account for the same according to law. Section 6, Laws 1876, p. 176.
But if I am wrong in the above views, still, the suit should be dismissed, because of the long delay and laches of the parties complainant. From a careful reading of the various acts, beginning in 1858, and another act in 1867, authorizing bonds to be issued for the construction of levees, and which provided that the lands sold for nonpayment of taxes to the levee commissioners should not be subject to taxation during the period in which they were so held. All of these acts gave remedies against the officers charged with their administration. The act of 1871 levied the taxes on the territory in the districts previously existing, and it does not except therefrom the lands therein sold for previous default of payment of *Page 797 levee taxes; and as the same were not subject to taxation, and as this act of 1858 and that of 1867 were each passed at a time when it was permissible, under the constitution, for the state to surrender its taxing power in favor of the creditor, the legislature had no power to impose other taxes upon them, to the prejudice of the bondholders during a period when the lands were held by the levee commissioners.
In Gibbs v. Green, 54 Miss. 592, it was expressly so held. The court pointed out in that opinion that the creditors of the old levee district, under the act of 1858, and the act of 1867, could not be compelled by the legislature to surrender their rights and take the bonds of the new district. Inasmuch as it is not now possible to gather all the facts pertaining to the collection of taxes under all these schemes, the doctrine of laches should be applied and suit dismissed, because of the unfavorable position in which the parties defendant, including the state, are placed. The levee commissioners, under all the acts, were required to keep a record, and were directed specifically in many matters by the legislature. It would be impossible now to ascertain the facts and administer full justice, because parties who had knowledge of the facts have passed from this life, and their testimony is no longer available. Whether the various tax collectors and the various commissioners performed their duties cannot now be known with any degree of certainty. Had the complainants pursued their remedy timely by suits against the officers, all the facts could have been known, and full and adequate relief could have been granted to them to fully protect their rights, and, at the same time, not hurt or damage any of the defendants, whose rights have been made uncertain by the delay, and the conditions now existing less favorable to the ascertainment of truth than would have been the case, had the action been timely taken, should bar them of any rights now. It is the duty of a complainant or plaintiff in a lawsuit to prepare, with reasonable diligence, his cause for trial, and *Page 798 press it. From the enactment of the laws of 1871 to this time, sixty-two years have passed. From the institution of this suit in 1888, to now, forty-five years have passed. It is unreasonable for a complainant to delay his cause for so long a time, even by the consent of the opposing party. This is especially true where the original defendants have died, and their legal representatives have been substituted. It is also especially true where the state is a party, for the state cannot be bound by the negligence or laches of its officials. This we have decided in many cases unnecessary to set forth here. Parties complainant must know, because it is the law, that an officer of the state cannot bind it by unreasonable and unnecessary delays.
In view of the criticism of the opinions applying the doctrine of laches to this suit, on the ground that the chancellor had not passed upon it, and that it was not raised by counsel, I desire to say that the case was appealed to settle the principles, which means all of the controlling principles arising on the record. We have the record before us, and it conclusively appears that laches exists. Counsel were given a chance to file briefs on that question, and have done so.