Hemingway, Treasurer, Etc., And Others v. Stansell

This is an appeal by 'William L. Hemingway, treasurer of the state of Mississippi, and Sylvester Gwinn, auditor of said state, and ex officio the levee board of Mississippi, district No. 1,' from a final decree of the district court of the United States for the northern district of Mississippi upon a bill in equity for the specific performance of a contract, filed in that court on the twenty-third of February, 1873, by Hiram A. Partee, a citizen of Tennessee, and Jephthah W. Stansell, a citizen of Arkansas, copartners under the name of Partee & Stansell, (of whom the appellee is the survivor,) against the levee board of Mississippi, district No. 1, and the five persons constituting that board. By an act of the legislature of the state of Mississippi of March 17, 1871, entitled 'An act to redeem and protect from overflow from the river Mississippi certain bottom lands herein described,' this board, consisting of commissioners to be appointed by the supervisors of Tunica and four other counties respectively, was incorporated for the purpose of constructing, repairing, and maintaining levees along a part of the Mississippi river. Its domicile was fixed at the county seat of Tunica county, in the northern district of Mississippi, and it was authorized to appoint a secretary and treasurer, and to let out and contract for the construction of the works, and to issue negotiable bonds to the amount of $1,000,000, and to sell and negotiate them in any market, but not at a greater rate of discount than 10 per cent. This suit was brought upon a contract made by the board with the plaintiffs for the construction of certain levees. While it was pending, on the eleventh of April, 1876, the legislature of Mississippi passed an act entitled 'An act to abolish the levee board of district No. 1, and to pay the debts of said board;' and enacting that the offices of commissioners, secretary, and treasurer of levee district No. 1, as existing under the statute of 1871, be abolished, and that the auditor of public accounts and the treasurer of the state be constituted and appointed the levee board of district No. 1, ex officio, and discharge all the duties of the levee board, and of the secretary and treasurer of the same; 'it being the intent and purpose of this act to substitute the auditor of the state and the treasurer thereof, ex officio, as such commissioners, secretary, and treasurer, in place and stead of the board of levee commissioners, secretary, and treasurer of levee district No. 1, now in office;' and that 'the auditor and treasurer shall have full power to settle up, under the laws now in force, the unfinished business of the said levee board of district No. 1, and to pay any outstanding liabilities of the same in such funds as may be applicable to the same.' The defendant thereupon moved to dismiss the bill, because by this statute the levee board had been abolished, and was no longer capable of suing or being sued. The court overruled this motion, and allowed the plaintiffs to file a bill of revivor against the auditor and treasurer, (both of whom resided at Jackson, in the southern district of Mississippi,) as constituting the levee board of district No. 1, and, after due pleadings and proofs, entered the final decree against the levee board, from which this appeal is taken. The appellee now moves to dismiss the appeal, because it is the appeal of Hemingway and Gwinn only, and not of the levee board. But we are of opinion that this motion, and the motion made in the court below to dismiss the bill, are equally groundless.