Summary
holding that a lifetime employment contract between the Town of Magee and a water-pump operator was unenforceable as binding successor administrations
Summary of this case from Tunica Cnty. v. Town of TunicaOpinion
No. 33104.
March 14, 1938.
1. EVIDENCE.
In suit on contract of employment to operate town water pump, where deed from plaintiff to town of land on which pump was located did not recite that plaintiff's employment was intended as part consideration for deed, but recited other consideration, such fact could not be shown by other evidence.
2. MUNICIPAL CORPORATIONS.
Under statute authorizing municipalities to install and maintain waterworks systems, municipalities may make all contracts reasonably necessary and expedient for the accomplishment of such purpose (Code 1930, section 2391).
3. MUNICIPAL CORPORATIONS.
Under statute authorizing municipalities to install and maintain waterworks systems, town could make contract for employment of operator of water pump for stipulated compensation, provided such contract was reasonably necessary and expedient for maintenance of waterworks system (Code 1930, section 2391).
4. MUNICIPAL CORPORATIONS.
Municipal officers may not bind their successors in the exercise of their discretionary authority to fix the compensation of employees engaged for the performance of public services.
5. MUNICIPAL CORPORATIONS.
A municipality is not estopped to repudiate ultra vires contracts of its officers attempting to bind their successors in exercise of discretionary authority to fix compensation of employees engaged for performance of public services, since all persons dealing with municipality are charged with knowledge of laws by which it is governed, which limit power of its officers.
6. MUNICIPAL CORPORATIONS.
A municipality has only those powers which are expressly conferred by statute, together with those granted by necessary implication, and such powers are those of the municipality, and not of its officers (Code 1930, section 2391).
7. MUNICIPAL CORPORATIONS.
A contract for employment, at stipulated compensation, of operator of town water pump for life with right of succession in operator's immediate lineal heirs, was enforceable only during term of town officers who made contract, and was ultra vires as respects contemplated employment thereafter, notwithstanding powers expressly and impliedly granted by statute authorizing municipalities to install and maintain waterworks systems (Code 1930, section 2391).
APPEAL from the circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
R.S. Tullos, of Raleigh, and McIntosh McIntosh, of Collins, for appellant.
All municipal corporations have expressed statutory authority to purchase real estate without the corporate limits.
Sections 2391 and 2315, Code of 1930.
It is evident that appellee, Town of Magee, had expressed power and authority under the aforesaid statutes to purchase appellant's spring as a source of supply for its waterworks system. The power to purchase by statute raises the implied power to contract and become bound to pay the consideration agreed upon.
Town of Magee v. Mallett, 174 So. 246.
Each new board of mayor and aldermen has ratified the original contract by continuing to use the spring as a water source for the municipal waterworks, and by continuing to retain appellant under his contract of employment. Since each new board has seen fit to accept all of the benefits under the original contract to purchase appellant's spring, the Town of Magee is bound to pay all of the considerations contracted for.
M.E. Church v. Vicksburg, 50 Miss. 605; Edwards House Co. v. City of Jackson, 103 So. 429.
It is respectfully submitted that the case at bar is similar to the Church case in that the contract for real estate as a water supply for the Town of Magee is expressly authorized by legislative grant, and is not prohibited by law as the leasing of a street as set out in the Edwards House case.
A municipal corporation exercises business functions in contracting for waterworks, etc., and is bound by its contracts as other corporations of private nature.
Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 259; Williams v. State, 60 So. 903; Brown v. Town of Sebastopol, 95 P. 365.
It is our humble contention that the Town of Magee was performing a business transaction in its contract with the appellant and should be held to the laws of the land applicable to private corporations.
An agreement for permanent employment is binding upon both parties when the employee purchases the employment with a valuable consideration.
18 R.C.L. 510, sec. 20; Jackson v. I.C.R. Co., 24 So. 874; F.S. Royster Guano Co. v. Hall, 68 F.2d 533; Pierce v. Tennessee Coal Co., 173 U.S. 1, 19 S.Ct. 335, 43 L.Ed. 591; Penn Co. v. Donald, 6 Ind. App. 109, 32 N.E. 802, 51 Am. St. Rep. 289; Usher v. N.Y. Cent. H.R. Co., 76 App. Div. 422, 78 N.Y.S. 508; Brighton v. Lake Shore M.S.R. Co., 103 Mich. 420, 61 N.W. 550.
A municipal corporation, in the transaction of its business duties is obligated in the same manner as private corporations.
M.E. Church v. Vicksburg, 50 Miss. 605; Edwards House Co. v. Jackson, 103 So. 429; Maney v. Oklahoma City, 150 Okla. 77; Williams v. State, 60 So. 903; Brown v. Sebastopol, 95 P. 365; Washington Water Power Co. v. City of Spokane, 154 P. 333; Hitchcock v. City of Galveston, 96 U.S. 341, 24 L.Ed. 659.
The appellant has performed by conveyance of his valuable spring, and the town has at all times since said conveyance was executed used the water therefrom to sell to its inhabitants, and have accepted the appellant's services in pumping water from the spring into the town's waterworks system. At the same time the town seeks to retain the spring, work the appellant at the same water pump, but reduce the material consideration agreed upon for the original contract.
It is respectfully submitted that the authorities cited in this brief amply sustain our contention in this connection.
The Town of Magee was transacting a business duty when it agreed upon the consideration of personal service; it is bound to the same extent in such transactions as private corporations, and a private corporation is bound by its contract of personal service for permanent employment.
W.M. Lofton, of Mendenhall, for appellee.
Among the powers possessed by the Mayor and Board of Aldermen it will be seen that under Section 2408 of the Code of 1930 that they have power "to prescribe the duties and to fix the compensation of all officers and employees, and to require bond with sureties for the performance of duties from all officers and employees." It seems to us from the language just quoted from said Section 2408, without citing any further authority, that the Mayor and Board of Aldermen had an undoubted right to fix the salary of the plaintiff while in regular session on the 3rd day of January, 1933. If so, then the plaintiff has no case.
To argue that one municipal board had no authority to deal wth a subject, whether to pass an ordinance fixing the salary of an officer or an employee, and to change the amount of such salary as fixed by their predecessors in office, or to pass an ordinance dealing with misdemeanors as fixed by the Mississippi Code of 1930, would have about as much reason to support it, as to argue that one session of the Mississippi Legislature could not change what their predecessors in office had done. We take it that nobody would seriously contend that they did not have the same jurisdiction, in a legislative capacity, that their predecessors had.
We further contend that the Supreme Court has already settled the question and has expressly held that the incoming officers of any municipality has a right to select the various officers and employees, and also to fix their salaries.
Ott v. State ex rel. Lowrey, 78 Miss. 487, 29 So. 520; Brown v. Christmas, 126 Miss. 358, 88 So. 881.
It will be observed that the deed of conveyance makes no reference to the alleged contract to pump water, though of the same date, the same being the 9th day of November, 1927, but shows on its face that it is full and complete, and it certainly appears that the cash consideration of $200 for one-fourth of an acre of land and situated ____ miles from the town of Magee, with certain water connections therein mentioned, and all to be free, and this not only to be furnished to W.A. Tullos, but also his immediate descendants, and so it seems to me that he certainly got full value for this land. So we have two contracts in this case, the one providing for the sale of the one-fourth acre of land, and the other for pumping water, and they make no reference to each other, though they were made on the same day. In view of the fact that each one is full and complete in itself, and in view of the further fact that it is shown that the said W.A. Tullos, received, not only a fair consideration for the one-fourth acre of land in this case, but it occurs to us that it was far above the price for which land was being sold in that immediate section of Simpson County. Just think of it: one-fourth of an acre of land and situated ____ miles from the town of Magee, and receiving for it $200 in cash and also free water during his lifetime and that also to extend to his immediate descendants, but he is not satisfied with that, and the logical effect of the argument made in the brief of counsel is that he should continue to receive an extra sum of $20 per month, above and beyond the consideration expressed in said deed during his entire lifetime, and I suppose then to his immediate descendants. We think such a contract is absolutely unreasonable, and that this court will so hold.
Under the authority of section 2391 of the Code of 1930, as brought forward from the Code of 1906, section 3314 thereof, the town of Magee, a municipal corporation, purchased in November of 1927 from the appellant, W.A. Tullos, a small tract of land outside the corporate limits on which was located a large spring, which was desired by the town as a source of water supply for the inhabitants thereof. A deed was executed therefor, which was thereupon duly placed of record, and recited a consideration of $200 paid in cash, together with the further consideration that the town should establish a hydrant and furnish water free at the home of the grantor, near the spring, and on certain lots in the town belonging to Sim Tullos. These were the only contractual obligations contained in the deed; but there was also an order adopted by the municipal authorities on that same day and placed on the minutes awarding a contract to the appellant to operate the pump to be installed at the spring for pumping water for the town, and a separate contract entered into whereby he was employed at a salary of $50 per month for such services, payable monthly, to continue during the life of appellant, and to be extended so as to give his immediate lineal heirs the right to perform such services under the contract after his death, provided they, or either of them, could show by actual work that they were qualified and capable of performing the contract to the satisfaction of the town authorities; and the contract to continue during the life of the appellant as long as his services were satisfactory or needed, and with the like provisions as to such heirs.
The contract was signed by the mayor and the clerk of the board under the authority conferred by the order on the minutes, and likewise signed by the appellant.
Neither the deed nor the contract refer to each other in any manner so as to be interdependent, or so as to constitute the contract of employment a part of the consideration of the deed. If such employment was in fact intended by the parties as a part of the consideration of the deed, such fact could not be shown aliunde, since the effect of such proof would add to the contractual obligations contained in the written instrument of conveyance.
The appellee continued to pay the compensation of $50 per month to appellant until its January meeting in 1933, when a new set of municipal officers assumed their duties; the terms of one new set having intervened in the meantime. At its January meeting, 1933, the new mayor and board of aldermen reduced the compensation to $30 per month, which has since been accepted by the appellant, under protest, and he has continued to perform the services required under the contract. At the time of the filing of this suit, this difference of $20 per month had accumulated until it amounted to $1,000, for which the suit is brought. From a judgment in favor of the appellee denying recovery, the appellant appeals.
The question presented for decision is whether a contract of such long-intended duration is enforceable, even if it be shown that it formed a part of the inducement for the sale of the parcel of land, but which is not shown by the writings themselves.
Appellant contends that by virtue of the authority of the statute conferring the power upon municipalities to install and maintain a waterworks system, there is given as an incident to such authority the right to employ some one to operate the plant and to fix his compensation therefore. This is true as regards contracts reasonably necessary and expedient for the accomplishment of that purpose. However, it is beyond the power of municipal officers to bind their successors in office in the exercise of their discretionary authority to fix the compensation of employees engaged for the performance of services rendered to the public. Such a contract, being ultra vires, does not estop the municipality, since all persons dealing with it are charged with knowledge of the laws by which it is governed, which limit the power of its officers. Only such powers are possessed by a municipality as are expressly conferred by statute, together with those granted by necessary implication by what is expressed in terms, and such powers as are either express or implied are the powers of the municipalities, and not of the officers who represent them.
It is necessary to hold under the authority of Edwards Hotel Co. v. City of Jackson, 96 Miss. 547, 51 So. 802, and Edwards House Co. v. City of Jackson, 138 Miss. 644, 103 So. 428, 42 A.L.R. 625, and the cases therein cited, that the contract in question is ultra vires, and therefore unenforceable, as attempting to fix the compensation of a city employee to cover a period of employment extending beyond any reasonable limitation.
Therefore the judgment of the circuit court must be affirmed.
Affirmed.