Bank of Commerce & Trust Co. v. Commissioners Tallahatchie Drainage District No. 1
| Decision Date | 14 December 1931 |
| Docket Number | 29626 |
| Citation | 138 So. 558,165 Miss. 582 |
| Parties | BANK OF COMMERCE & TRUST CO. v. COMMISSIONERS TALLAHATCHIE DRAINAGE DISTRICT NO. 1 et al |
| Court | Mississippi Supreme Court |
1 DRAINS.
Judgment against drainage district for amount due for plans and specifications for abandoned improvements held not void because landowners were not made parties (Laws 1914, chapter 195, section 4, as amended).
2 DRAINS.
Decision of supervisors or of chancellor regarding which method of taxation should be adopted to pay preliminary expenses incurred by drainage district abandoning improvements is not re-viewable (Laws 1914, chapter 195, section 4, as amended).
3 DRAINS.
Collection of tax to pay preliminary expenses incurred by drainage district abandoning improvements cannot be spread over period of years (Laws 1914, chapter 195, section 4, as amended).
4 DRAINS.
Chancellor directing levy of tax to pay preliminary expenses of drainage district had only powers conferred by statute (Laws 1914, chapter 195, section 4, as amended).
HON. R. E. JACKSON, Chancellor.
APPEAL from chancery court of Tallahatchie county HON. R. E. JACKSON, Chancellor.
Suit by the Bank of Commerce & Trust Company against the Commissioners Tallahatchie Drainage District No. 1 and others. From the decree, complainant appeals, and defendant named and others cross-appeal. Affirmed on cross-appeal, and reversed and rendered on direct appeal.
See also, 157 Miss. 336, 128 So. 91.
Reversed on direct appeal, and decree here.
Julian C. Wilson (of Wilson, Gates, & Armstrong), of Memphis, Tenn., for appellant, Bank of Commerce.
The provisions of the Act of 1914 and 1918 are constitutional in that full notice is given to all landowners of the application for organization, the description of their lands to be embraced, and the making and approval of assessments.
Cox v. Wallace, 110 Miss. 526; Jones v. Drainage District, 102 Miss. 796; Yazoo County v. Grable, 111 Miss. 893; Wooten v. Hickhala Drainage District, 116 Miss. 787; Kramer v. Standing Pine District, 117 Miss. 387; Mabry v. Russell, 134 Miss. 239; Jackson v. Burns, 148 Miss. 7; Houck v. Little River Drainage Dist., 239 U.S. 254, 60 L.Ed. 266; Breholz v. Pocahontas County, 257 U.S. 188, 66 L.Ed. 159; Missouri Pacific R. R. Co. v. Western Crawford Road Improvement District, 266 U.S. 187, 69 L.Ed. 237.
The district as a corporate body politic, capable of suing, being sued, was a defendant to the suit on which the judgment was obtained, being represented by its commissioners who appealed to this court then and are appellees here now.
Tallahatchie Dist. v. Yocona Dist., 148 Miss. 182.
The establishment of a suit against a quasi-public corporation or improvement district without notice and hearing afforded the individual landowners of the district does not deny the individual landowners due process of law.
Voight v. City of Detroit, 184 U.S. 115, 46 L.Ed. 459; Bernheimer v. Converse, 206 U.S. 516, 51 L.Ed. 1163; Converse v. Hamilton, 224 U.S. 243, 56. L.Ed. 749; Selig v. Hamilton, 234 U.S. 652, 58 L.Ed. 1518; St. Louis & Kansas City Land Co. et al. v. Kansas City, 241 U.S. 419, 60 L.Ed. 1072; Gulf & S. I. R. Co. v. Ducksworth, 286 F. 645.
It is not necessary for the taxpayer to have notice of every preliminary proceeding if at the end and before final liability he may have an opportunity to object to all.
Jones v. Drainage District, 102 Miss. 796; Cox v. Wallace, 100 Miss. 526.
The statutes do not contemplate that the published notice to the owners of the land shall be directed to each owner by name.
Wooten v. Hickahala Drainage District, 116 Miss. 787.
The proceedings under Chapter 195, Laws of 1912, and the amendments thereto, are judicial, and notice given in pursuance of the statute constitutes due process of law, and judgments rendered are valid and binding.
Jackson & Eastern Ry. Co. v. Burns, 148 Miss. 7.
The statute for payment has been sustained.
Kramer v. Standing Pine Drainage District, 117 Miss. 387.
A reasonable and fair interpretation of the statute is that where an ad valorem tax is levied, the indebtedness is to be apportioned among the different counties in which the lands of the district are located, in the proportion that the assessed value of such lands in each county bears to the total assessed value of all the assessment rolls of such counties. An ad valorem tax so levied would appear to be more just to the landowners than a flat acreage tax.
The legislative mandate is that "the Board of Supervisors of the several counties shall thereupon levy such apportionate tax upon the lands of their counties respectively according to the ruling of the said chancellor." This seems to contemplate the levy of one tax and an immediate levy and does not seem to provide for dividing this into several levies extended over a number of years.
Watkins, Watkins & Eager, of Jackson, for appellees.
Section 1, Chapter 159, Mississippi Laws of 1918, as construed and enforced in this case, violates the Fourteenth Amendment to the Constitution of the United States.
Before the amount sought to be charged against the property of the land owners be apportioned and fixed as a lien, such property owners should have the right to be heard at some stage, of the proceedings to test the validity of the contract and the correctness of the indebtedness sought to be charged.
Bradford v. Creekmore, 107 So. 525, 142 Miss. 565; Redman v. Drainage District, 80 So. 300; Londoner v. Denver, 210 U.S. 373, 52 L.Ed. 1103; Turner v. Wade, 254 U.S. 64, 65 L.Ed. 134; Scott v. Toledo, 1 L.R.A. 688, 36 F. 401; Central of Georgia Ry. Co. v. Wright, 207 U.S. 127, 52 L.Ed. 134; Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443; Murray County v. District Court, 164 N.W. 815; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Kimball v. Board of Supervisors, 180 N.W. 988; 34 C. J., page 1028.
The intervening property owners in this case have a separate, private, personal interest from the district, which made it essential that they be made parties thereto or have an opportunity to be heard in any effort to apportion the judgment for assessment against their respective lands, and the judgment against the district on the contract sued on, should not be res judicata on an issue to apportion the judgment for assessment against their lands.
Aron v. Chaffe, 17 So. 11, 72 Miss. 159; Nelson v. Ill. Cent. R. R. Co., 53 So. 619, 98 Miss. 295; Brown v. Creegan, 62 So. 11, 105 Miss. 146; Coleman v. Smith, 87 So. 7, 124 Miss. 604, Commercial Bank v. Evans, 112 So. 482, 145 Miss. 643; Pyle v. Gentry, 127 Miss. 784, 90 So. 485; Hardy v. O'Pry, 59 So. 73, 102 Miss. 197; Rosso v. New York Life Ins. Co., 157 Miss. 469, 128 So. 343; James v. City of Louisville, Ky., 40 S.W. 912; Spear v. Bremerton, 156 P. 825; Northern Pacific R. R. Co. v. Snohomish, 172 P. 878.
Watkins, Watkins & Eager, of Jackson, and Jno. M. Kuykendall, of Charleston, for appellees.
When we turn to the statute, there is not a single statement in it to the effect that the tax should be levied at once. Upon the other hand, it is well susceptible to the construction that the chancellor might extend the tax over a period of years.
38 C. J. 781; City of Clevehand, Tenn., v. United States (C. C. A.), 166 F. 677; Amy v. City of Galena, 7 F. 163; State ex rel. Gregory v. School District No. 7, 22 Neb. 700, 36 N.W. 278.
Richard Denman, of Greenwood, and J. J. Breland, of Sumner, for appellees.
We adopt the brief filed by Gardner, Odom & Gardner.
The meaning of Chapter 159, Laws of 1908 leaves to the discretion of the chancellor as to whether or not an acreage tax or an ad valorem tax shall be levied on the lands to pay such indebtedness. It is clear to us from the text of this statute, that it was the intent and purpose of the Legislature, in the enactment of this statute, that the chancellor or the board of supervisors, as the case may be, should have the discretion as to whether an acreage tax or an ad valorem tax should be levied on the lands of the district.
This court did not have before it on the first appeal, the precise question in this case, which tax, to collect this particular judgment, would be most just to the taxpayers of the district. And the expression of the court is not now binding on this court on this appeal.
H. & G. Newman, Inc. v. Delta Grocery & Cotton Company, 144 Miss. 877, 110 So. 686.
Caldwell & Caldwell, and J. M. Kuykendall, of Charleston, for appellees.
We ask the court to consider the brief filed herein by Messrs. Watkins, Watkins & Eager on behalf of intervening taxpayers as adopted by the commissioners of the said drainage district.
Since the court has some measure of discretion in awarding mandamus, in requiring levies of taxes the writ will not be so employed as to impose an unnecessarily oppressive burden at one time, and it has accordingly been held that the court may direct successive levies to be made over a number of years.
The spreading of the tax over a period of years was justified.
City of Cleveland, Tennessee, v. United States, 116 F. 677; Phelps v. Lodge, 60 Kan. 122, 55 P. 840; Graham v. Quinlan, 207 F. 268; 38 C. J. 781, note 16; State v. Lehman, 131 So. 533.
Gardner, Odom & Gardner, all of Greenwood, for appellees.
We, in order to avoid repetition, ratify and adopt the brief of Watkins, Watkins & Eager.
The part of the court's decision in the former appeal, which declared in favor of an acreage tax was purely obiter dictum, and this announcement of the court is not binding on the parties to this appeal.
Fidelity Mutual Life Insurance Company v. Miazza, 93 Miss 422, 48 So. 1017; Middleton v. Davis, 105...
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