It is an old adage in legal circles that hard cases make bad law. The case at bar is a conspicuous example of the applicability of that adage. The situation which confronted the levee board, the contractor, and public was such as to elicit the sympathy of all right-thinking persons, and I regret that I cannot concur in the majority opinion. But courts are constituted to administer justice according to the law of the land, and not according to the wishes of any person or persons not crystallized into law.
It seems to me that the proposition confronting us now is not what powers the levee commissioners had as an original proposition in making a contract, nor what liberties they would be allowed in departing from the directions and public policy of the Constitution and the legislature, acting within the scope of their jurisdiction or powers. The contract had already been let to build a specific levee, on specific terms and specifications, and for a stipulated price agreed upon by the levee commissioners and contractors which constituted a valid, binding contract between them, and the contractors were obligated to do precisely the work that they did do. After the contract became binding on both parties, the levee commissioners undertook to increase the compensation of the contractors without canceling or declaring the contract breached or avoided.
In my view, when the board let the contract, it exhausted its power with reference thereto so long as the contract remained in force, regardless of all other considerations. In other words, in letting the contract, the *Page 136 board had exhausted its constitutional powers with reference thereto so long as the contract remained in force. The hardships involved are of no legal consequence, and do not authorize the board to increase the compensation. What the board undertook to do in this case was merely to increase the contract price. The original contract was in full force, and the contractor had never abandoned the contract, but was then in the performance of his contract, although it appeared that he might not be able to complete it for the want of funds and credit, due to the greatly increased cost of labor and materials following the conditions brought about by the World War. This effort of the board to increase the compensation was directly prohibited by the Constitution itself in terms so plain, it seems to me, that "he who runs may read," and although reading in a run may understand. It stands out like a mountain in the landscape which no sympathy or sophistry or combination of them can obscure. This section reads: Section 96. "The legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections."
It appears that the levee commissioners and their attorneys and legal advisors did not have this section of the Constitution before them, and were, apparently, not aware of its existence; nevertheless, they must be assumed to have had knowledge of it, and its provisions cannot be defeated by the ignorance of any body, or any officer, or department of the government. The levee commissioners clearly had no jurisdiction to do that which the law, and in this case the supreme law, prohibited them from doing. The levee commissioners and their advisors *Page 137 were familiar with section 100 of the Constitution, which reads as follows: "No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the legislature from providing by general law for the compromise of doubtful claims."
The levee board and its attorneys, and the attorney-general of the state, being confronted with this provision of the Constitution, conceived that they could not release the contract in favor of a state made to the state's advantage with the contractor, by recognizing the hardships imposed upon the contractor, by the great rise in the cost of labor and material after the making of the contract, and the threatening inability to complete the work, although they thought they could relieve the situation by granting extra compensation to the contractor for the work done and to be done. Not only was the increase applied to the unfinished work, but it was applied to the work already done. This was clearly within the very teeth of section 96 of the Constitution.
In construing the constitutional provisions, all sections of the Constitution in pari materia are read together and construed as a whole. Let us then consider these two sections above set out with the sections of the Constitution providing for the levee system of the state, and see what a fair interpretation of all of them will be. Section 227 of the Constitution provides that a levee system shall be maintained in the state as provided in the article referring to article 11 of the Constitution. *Page 138
Section 228 recognizes the two levee districts formerly created by law, and provides that they shall remain so until changed by law, but that the legislature may hereafter add to said district any other alluvial land in the state.
Section 229 of the Constitution provides there shall be a board of levee commissioners for the Yazoo-Mississippi Delta levee district and names the territory to compose such district, and the members to be selected therefrom by counties, and provides that in the event of a new county, or counties, being formed out of the territory embraced, they shall have representation and membership in the proper board or boards.
Section 230 provides that the commissioners shall be qualified electors of the respective counties or parts of counties from which they may be chosen, and that each shall give bond for the faithful performance of his duties, and shall fix the penalty thereof; but the penalty of such bond in no instance shall be fixed at less than ten thousand dollars, and the sureties thereon shall be freeholders of the district.
Section 231 provides for the filling of vacancies and the terms of office of the commissioners.
Section 232 provides as follows: "The commissioners of said levee districts shall have supervision of the erection, repair, and maintenance of the levees in their respective districts, and shall have power to cede all their rights of way and levees and the maintenance, management and control thereof to the government of the United States."
By section 233 the levee boards are granted authority to appropriate private property for the purposes of constructing, maintaining, and repairing levees therein, and for awarding the compensation of any lands where compensation is required, but provides in its conclusion that the legislature shall have full power to alter and amend *Page 139 said several acts, and to provide different manners of procedure. The other sections of the article provide for methods of taxation and publication of expenditures, and are not pertinent to the present controversy.
Section 1 of the Constitution divides the state government into three separate departments of government, and section 2 provides that no person, or collection of persons, being or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of the said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.
In Haley v. State, 108 Miss. 899, 67 So. 498, it was held that the office of levee commissioner is a part of the executive branch of the government, and that if a person who is a member of the board of supervisors of the county, which office is in the judiciary department, accepts the office of levee commissioner, by doing so vacates his office as supervisor under section 2 of the Constitution. It follows therefore that the levee commissioner is not a judicial body, but is a member of the executive branch of the government.
By section 230 the levee commissioners are each required to give a bond for the faithful performance of their duties, and the same section provides for the penalty of the bond to be not less than ten thousand dollars. This section clearly recognizes that the levee commissioners are to be held responsible for the discharge of their duties, and that bond shall be given to see that such duties are performed, carrying with it fully and clearly the idea of liability for acts done contrary to law.
Section 2997, Hemingway's 1927 Code, section 3464 of the Code of 1906, reads as follows: "The bonds of all public officers shall be made payable to the state, and shall be put in suit in the name of the state for the use *Page 140 and benefit of any person injured by the breach thereof; and such bonds shall not be void on the first recovery, but may be put in suit from time to time by any party injured by the breach thereof, until the whole penalty shall be recovered."
This section expressly makes the bonds of all public officers required to give bond subject to suit for the use of any person injured by the breach of the bond; that is, by the breach of the legal duty for which the bond was given to secure the performance.
By section 3375 of Hemingway's 1927 Code, section 4805, Code of 1906, it is provided: "The state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case; it may maintain the action of unlawful entry and detainer in all cases, at its option, for the recovery of land." This section gives the state the same right to recover for breach thereof that other persons have, which insures the state the same right as an individual would have to bring suit. The state revenue agent is authorized by statute to bring suit on behalf of the state, county, levee board, and any municipality.
By section 8 of an act approved February 7, 1894, chapter 79 of the Laws of 1894, it is provided: "It shall be unlawful after the passage of this act for said board of Mississippi Levee Commissioners, their officers, agents or employees, to contract any obligation, or incur any indebtedness, or to pledge the credit of the board or its revenues in any manner not authorized by law; and each violation of this section is declared a misdemeanor, and punishable by fine of not less than one hundred dollars, nor more than five hundred dollars, and such obligation or such indebtedness incurred, or pledge of credit made, shall be void." Laws of Mississippi Levee District (Compiled 1921) p. 118. *Page 141
By section 3008, Hemingway's Code of 1927, section 3474, Code of 1906, provided: "An officer shall not enter into any contract on behalf of the state, or any county, city, town, or village thereof, without being specially authorized thereto by law, or by an order of the board of supervisors or municipal authorities."
These sections clearly prohibit the contract undertaken by the levee board by which it undertook to grant increased compensation to the contractor for the performance of his contract. The provisions of sections 96 and 100 of the Constitution are clearly intended to preserve to the public the benefit of favorable contracts obtained by it, and it is substantially to prohibit any authority of the state violating these provisions. The history of the state as shown by the various enactments of the legislature prior to 1890, and some of them since, undertaking to validate illegal contracts and release legal liabilities, and to ratify actions of local boards and bodies giving away the public advantages of contracts, and the constitutional convention, having this right before it, determined that it should not thereafter be done, and no officer, agent, or department of the government has any right to change or modify or to limit and restrict these provisions. It is almost inevitable that hardships will arise in particular cases from the operation of any general law, and the legislative body, whether a constitutional convention, or the legislature itself, have a right to weigh the advantages and disadvantages, the justice and injustice of particular situations, and to determine whether a given policy will promote the general welfare or not, and when the state has spoken through its competent authority, it is the duty of the court to obey and to give full effect to the policy thus established. The courts have nothing to do with the wisdom or folly of legislation, but they are to administer the law accepting the public policy as determined in the law enacted by the proper lawmaking body. *Page 142
This court has held in a number of cases that public officers are insurers of the safety of money coming into their hands by virtue of their offices. See State v. Lee, 72 Miss. 281, 16 So. 243; Brown v. Lester, 13 Smedes M. 392; Baugher v. Land,40 Miss. 493; 46 C.J. 1038, section 310.
The foregoing section requiring the levee board to give bond for the faithful performance of their office is clearly an indication that they are responsible for their unlawful acts. As stated above, they are not judicial officers. Judicial officers are not required to give bond for their judicial functions. This court has solemnly declared in Haley v. State, supra, that members of the levee board are executive officers. The Constitution itself so classed them by requiring bonds for the faithful performance of their duties, and this bond itself certainly governs the duties named in the Constitution. It was therefore within the contemplation of the constitutional convention that the bond should govern the performance of all duties named in the Constitution itself.
The legislature, by chapters 169, 170, Laws of 1922, prescribed the method by which the levee board could make contracts and limited the number of employees, and fixed and regulated their compensation. The levee board took the position that this could not be done, as the Constitution had conferred jurisdiction upon the levee board, and the legislature could not control their jurisdiction thus fixed by the Constitution. In the case of Franklin v. Ellis, 130 Miss. 164, 93 So. 738, the court considered this contention, and held that said laws were valid enactments, and that the regulations thus prescribed did not unreasonably impair or restrict the jurisdiction given the levee board by the Constitution. See, also, Bobo v. Board of Levee Com'rs for Yazoo-Mississippi Delta, 92 Miss. 792, 46 So. 819. *Page 143
It is clear therefore that the levee board is governed by the law in the exercise of its jurisdiction, and that the legislature has the power to regulate and control the exercise of the jurisdiction so conferred upon the levee board within reasonable limits. This will be clearly seen by reading the different sections of the Constitution above set out, and others contained in the chapter on levee commissioners in the state Constitution.
In construing the Constitution, it is a familiar rule that all parts will be construed together where they are pertinent to the subject-matter of the litigation, and it is too clear for doubt, I think, that sections 96 and 100 of the Constitution of 1890 deny the levee board any power to make any such contract or agreement as that out of which this litigation arose.
A former decision of this court, in the case of Clark v. Miller, 142 Miss. 123, 105 So. 502, clearly settled the question in so far as the power to make a legal and binding contract is concerned, by holding that neither the legislature nor any subordinate bodies of the state could authorize a violation of the provisions of section 96 of the state Constitution.
I think the statutes and decisions above set out clearly establish the principles of liability for the doing of an act prohibited by law. How can any board or body have any jurisdiction to do that which is prohibited by law?
Something is said in the majority opinion about differences between "jurisdiction" and "power." I think these distinctions are fanciful. The principle, probably, that was operating in the mind of the writer of the majority opinion is the difference between jurisdiction and statutory directions. Black's Law Dictionary defines "jurisdiction" as follows: "The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) as court or judge to pronounce the sentence of the law, or to award the remedies provided *Page 144 by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient. (Authorities cited.) Jurisdiction is a power constitutionally conferred upon a judge or magistrate to take cognizance of and determine causes according to law, and to carry his sentence into execution." See other definitions on page 673, Black's Law Dictionary. It will be seen from those definitions that the basis of jurisdiction is the power to hear and determine the matter.
Power is defined in several aspects by the same authority, but, as applied to constitutional law, the following definition is given: "The right to take action in respect to a particular subject-matter or class of matters, involving more or less of discretion, granted by the constitution to the several departments or branches of the government, or reserved to the people. Powers in this sense are generally classified as legislative, executive and judicial."
The difference between "jurisdiction" and "power," it seems to me, is largely confined to the character or function which is being exercised. In judicial proceedings, the word "jurisdiction" is used instead of "power," but the meaning of the two words is practically synonymous. "Power" is the word used generally as to legislative offices, and especially executive offices. Strictly speaking, executive officers do not have jurisdiction, but have power or powers to do a particular act, but, no matter what character of officer is acting, he must get his power to act from the law. It is true the law frequently gives him power to decide questions of fact upon which his power to act may depend, and frequently directs him to that act in a particular manner. When the power to *Page 145 do a given act is conferred and no direction is given as to the manner of performance, the officer, of course, has the discretion to exercise power in any reasonable, practical way; but when he is given directions to act in a particular manner, the act is generally directory, and will be so construed unless a contrary intention is expressed in the legislative or constitutional act conferring the power. Exercise of a power, although in an improper or unlawful manner, will not make an officer personally liable, provided he acts in a reasonable manner and in good faith; but where the act is absolutely prohibited by law, he has no jurisdiction or power to do the act at all, and where bond is required of the officer, he will be liable on such bond for doing any act prohibited by the law. The condition of the bond to faithfully perform the duties of the office mean, of course, that the officer shall act therein conformably to the law in his official conduct. If he goes beyond the law and does a prohibited act, he, clearly, will be liable. This principle is recognized in all the authorities cited in the majority opinion, with the possible exception of State to Use of Lincoln County v. Green,111 Miss. 32, 71 So. 171, which will be referred to later in this opinion. The majority opinion cites Bell v. McKinney, 63 Miss. 187. That case does not support the position for which it is cited here. In that case the mayor of a town was given the powers of a justice of the peace within the municipality, and the powers of conservator of the peace throughout the justice of the peace district, having the power to try misdemeanors where they occurred within the municipal limits, and having the power, if such occurred outside the municipal limits, to bind over the offender to the proper authorities for trial. Thus he had jurisdiction in either case to arrest the party, and it depended upon the facts as to what course he should take, but he must, at all events, exercise jurisdiction. That was strictly a court and not an executive *Page 146 officer at all. Had the plaintiff in that case sued the marshal or other executive officer who had committed him to prison after tender of the proper bond, no doubt, he would have been permitted to recover. It is a far cry from that case to this one.
The case of Paxton v. Baum, 59 Miss. 531, cited in the majority opinion, clearly recognizes liability upon the bond of an officer for doing acts prohibited by law. At page 536 of that case, the court said: "By section 1378 of the Code of 1871, it was provided that `the board of supervisors shall direct the appropriation of the money that may come into the treasury of their respective counties, but shall not appropriate the same to any object notauthorized by law.' . . . The question is as to the interpretation of the expression `object not authorized by law.' The objects to which money in the county treasury may be appropriated are designated by law, and it is not legally appropriable to any other purposes. If it is appropriated by the board of supervisors to some other object than is authorized by law, members are liable personally for it, unless they voted against such appropriation."
As stated, what the board undertook in the present case was not to make a new contract or an original contract for building a levee, but was only to grant an increased compensation for a contract already let, and it was not within the power of the levee board to change or modify a contract under the above section of the Constitution. They were expressly prohibited from contracting for any obligation having for its object the increase of compensation on a contract after such contract was let. The compensation in the case at bar applied to work already done as well as to work to be done in the future, and the increase was not only made to cover loss that the contractor would suffer, but was to give him enough compensation to make twenty per cent. profit. *Page 147
In the case of State to Use of Lincoln County v. Green,111 Miss. 32, 71 So. 171, neither the court nor counsel, so far as the report of the case shows, referred to section 96 of the Constitution or section 100 thereof. It cannot well be said that said case has construed the provisions of section 96.
It is familiar law that the court will neither raise, nor decide, constitutional questions that are not raised by counsel; but I have never been in love with this principle. I have always thought that, where constitutional questions are directly or necessarily involved, the court ought to proceed to decide them. I think the court is presumed to know the law and should decide the law that is involved in the case, although counsel representing litigants may not raise the question, and especially statutory or constitutional provisions. If the case of State to Use of Lincoln County v. Green, supra, was undertaking to decide section 96 of the Constitution it is so palpably and clearly a wrong and mischievous decision that it should be overruled, and it was overruled, in effect, in Miller v. Tucker, 142 Miss. 147,105 So. 774, 784 (read the Southern reporter for this case, as the official report was scrambled in the publication). As stated, in the State to Use of Lincoln County v. Green case, the court nowhere referred to section 96. The decision in that case was rendered at a time when the court was three years behind with its docket, and was making a desperate effort to catch up with the work, so that litigants could secure justice within a reasonable time. Confronted with such a situation, the court could not be expected to take up questions not raised, and specifically constitutional questions, and work out decisions on them. I think therefore that State to Use of Lincoln County v. Green, supra, even if not already overruled, is not authority, and we should now decide the question presented on its merits and give the constitutional section a fair *Page 148 construction to secure the object for which it was enacted. When the case at bar was here before we decided this principle of law inconsistent with that of the Green case, and it was necessarily overruled by implication in that case as well as in the case of Miller v. Tucker, supra. In the Miller v. Tucker case it was contended that although the allowance made to the Kings Daughters and Ladies of Charity, a charitable organization, may not have been in accordance with the law, still the legislature ratified what was there done, and the court, in responding to that contention, said: "The revenue agent challenges the constitutionality of this act. As we have seen above, the act was without authority of law, there being no authority under the statutes in force at the time the allowances were made to pay out the money in this manner. Section 96 of the state constitution provides that the legislature shall never grant any extra compensation, fee, or allowance to any officer, agent, servant, or contractor for services rendered on a contract made when there is payment or part payment of any claim under any contract not authorized by law." The court also quoted section 100 of the Constitution. It will be seen that in Miller v. Tucker the court construed section 96 by express and appropriate language, and that it is absolutely contrary to the principle announced in the Green case. Again, the Green case did not refer to sections 1 and 2 of the Constitution, but held that the county superintendent of education was possessed of both executive and judicial powers, clearly contrary to these sections, too plain to be misconstrued, and is in direct conflict not only with that section, but with the Haley v. State case, supra. It did not mention the Haley case, and it did not mention section 2 of the Constitution, and we certainly ought to assume that the court did not have either of them in mind. However, if it did, the later case of Miller v. Tucker, supra, would have the same effect, and it would be, in turn, overruled. *Page 149
It seems to me that the decision of the majority opinion is not only wrong, but that it will result in mischief; and I do not see how a distinction can be drawn between the case at bar, and others that will arise hereafter, where the board in the case at bar, and boards of supervisors hereafter, undertake to grant extra compensation on contracts already made. The effect will be that the wholesome safeguards of section 96 of the Constitution will be officially removed, where boards let contracts and pay out money in such cases to insolvent persons, or where persons become insolvent after the money is paid. It is often the case that boards of supervisors and municipalities are confronted with the fact that contracts are bid for at prices that will inevitably result in loss to the contractors. If the law permits such boards to do so, it would, in effect, relieve as to persons, but the trouble about this is that persons would appear and bid in competition with others, and take the work at a cheaper price, and after getting the contract, would approach the boards and secure extra compensation; such boards being liberal with its friends and having lawful authority to do so. As to what was done in the case at bar, by allowing not only enough to cover the losses that the contractor would suffer by performing his contract, the board granted enough compensation to amount to a handsome profit upon the cost of the work. The whole policy of the law, as announced in sections 96 and 100 of the Constitution, is to protect the public from this very evil.
I therefore think the judgment of the court below should be affirmed. *Page 150