Belzoni Drainage Commission v. Winn

• Decision Date: 19 December 1910
• Citation: 53 So. 778,98 Miss. 359
• Court: Mississippi Supreme Court
• Parties: BELZONI DRAINAGE COMMISSION ET AL. v. OSAMUS WINN

53 So. 778

98 Miss. 359

BELZONI DRAINAGE COMMISSION ET AL. v. OSAMUS WINN

Supreme Court of Mississippi

December 19, 1910

October 1910

APPEAL from the chancery court of Washington county, HON.E. N THOMAS, Chancellor.

Suit by Osamus Winn against the Belzoni Drainage Commission. From a judgment overruling a demurrer to the bill defendant appeals.

The facts in the case are sufficiently stated in the opinion of the court.

Affirmed and remanded.

R. B Campbell, for appellant.

The act does not violate section 90, paragraph (q). It does not relate to water courses within the purview of that paragraph. Water courses are not mentioned in the Act. It provides for artificial ditches, for the purpose of effecting a system of drainage; and, they are intended to carry water, to be sure and water will course its way down them, but they are not water courses, according to the ordinary meaning of the term. A water course is defined as "a natural stream of water usually flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water." 30 Am. and Eng. Ency. Law, 347.

The framers of the Constitution must have been familiar with the fact that drainage districts had been created, and drainage systems established, and were, of necessity, local in character, and created by local laws; and, if they had intended to forbid the creation of such ditches by local laws, they would have enumerated them among the other local laws designated in section 90, and would not have left it to a mere inference that they were included in paragraph Q thereof, as "relating to water courses."

Not having specified drainage districts and drainage among the things prohibited in section 90, it is fair to assume that they were among other matters which were left to the legislature to be provided for, either by general or local laws, as it might determine.

The only expression in the act that could possibly be stretched to mean, or relate to, a water course, are found in sections 7 and 8, wherein direction is given as to how the survey of the district, and of the several units, is to be made, and what the maps thereof are to show. In section 7, after requiring the survey to be made so as to show the best methods of effecting the drainage by artificial canals and ditches, it is further required to show the best method of effecting the drainage "by shortening and improving all natural drains in said district;" and in section 8, the maps of the several units, showing the system of drainage therein, are required to show, among other things, "improved natural water channels."

Granting that these quoted expressions in themselves are within the purview of section 90, paragraph (q), they may be stricken out, without affecting the remaining portions of the act; and the remaining portions will constitute a complete and harmonious law, capable of accomplishing the legislative purpose, in adopting the act.

Furthermore, the appellee has shown no right to attack the act on the ground that it violates paragraph (q) of section 90, nor that he will be injured in any way by an enforcement of the law. His attack is general and not allowable, under the general rule upon the subject hereinbefore cited.

Wynn and Watson, for appellee.

The act is unconstitutional, because violative of section 90 (q), relating to water courses, for section 7 of this act contemplates the dealing with natural drains, and the whole act shows that natural drains in this act means water courses, and that water courses have to be dealt with to effect the drainage contemplated in the act. The attempt to avoid the contention made in James v. Tallahatchie Drainage Commission, by using the words "natural drains" instead of "waterways" is ineffective; it is simply an attempt to violate the Constitution by the use of words. The court judicially knows the geography of the country, and that the water drained into the main drains must be carried by these main drains into a water course, either the Yazoo river or the Sunflower river, in order to be carried away. The act might just as well have the words water courses instead of natural drains, when the court judicially knows that the act is abortive unless something is done relating to water courses, and the main thing to be done under the act is to carry the water into a water course. The Constitution uses the words "relating to water courses." It does not say "interfering with, " "damming up, " "stopping, " but "relating to." Now to illustrate the soundness of our position, drainage districts have been formed in Bolivar county, precipitating rapidly--and so much more rapidly--into the Bogue Phalia the water therefrom (Bogue Phalia running through Bolivar and Washington counties), that realizing that Bogue Phalia will not be able to carry off the water thus so much more rapidly precipitated into it, so as not to overflow the lands adjoining it in Washington county, these same people who have organized districts in Bolivar county come down into Washington county and say, we desire you people in Washington county to organize a district in Washington county so as to have the Bogue Phalia cleaned out and so that the water thus precipitated so much more rapidly will be carried off and there will be no question of liability of our districts for damages.

It may be contended that the right to drain into a water course is a right which exists by law, but whether it exists by law or not the Constitution has provided that no special law relating thereto shall be enacted. Thus it will be seen that this act, in effect, relates to water courses, and that the lands cannot be drained without the emptying the waters from the main drains either into the Yazoo or Sunflower rivers, and when that is done then a thing very material relating to water courses is done.

A. J. Rose, for appellee.

One part of a statute may be enforced as constitutional, and another be declared inoperative and void, because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and to declare, that the intention of the legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact. Poindexter v. Greenhow, 114 U.S. 270, 305, 29 L.Ed. 185, 198.

The rule is: "If the law is...