Board of Supervisors of Yazoo County v. Grable

Citation72 So. 777,111 Miss. 893
CourtUnited States State Supreme Court of Mississippi
Decision Date23 October 1916
PartiesBOARD OF SUPERVISORS OF YAZOO COUNTY v. GRABLE

October 1916

APPEAL from the circuit court of Yazoo county, HON. W. H. POTTER Judge.

Proceedings on claim of R. L. Grable against the board of supervisors of Yazoo county. From a judgment of the circuit court reversing the action of the board of supervisors in disallowing the claim, the board appeals.

The Big Black drainage district was organized under a decree of the chancery court, and a survey was made of the territory embraced in that district covering several counties, and appellee was chosen as engineer of the drainage district, and incurred considerable expense in making his preliminary survey, part of which was paid by the Federal government, and the balance apportioned by decree of the chancery court among the several counties embraced in the district; the amount apportioned against Yazoo county being $ 1,438.46. The board of supervisors declined to allow the account when presented and an appeal was taken to the circuit court, which reversed the judgment of the board of supervisors and ordered the account paid. Thereafter the board of supervisors again declined to pay the account and appealed from the decision of the circuit court to the supreme court. The judgment of the circuit court appealed from allowed the appellee the full sum sued for with six per cent. interest thereon from the date of the judgment till paid. The opinion of the trial judge is as follows:

Under the provisions of chapter 195, Laws of Mississippi 1912, more than ten per cent. of the owners of land in a proposed drainage district embracing swamp land subject to overflow from the Big Black river, lying in Holmes, Yazoo, and several other counties, filed their petition in the chancery court of Holmes county, containing necessary description and averments, specifying an engineer and praying for his appointment, and the establishment of the Big Black drainage district. The engineer named in the petition was by decree appointed.

Afterwards there was filed in said cause a supplemental petition signed by the attorneys for petitioners, which set out that the engineer that had been appointed by the court had refused to qualify, and nominated the plaintiff, R. L. Grable, as a competent and suitable engineer, and prayed for his appointment, and thereafter plaintiff was appointed engineer by decree of the court, qualified, and later made a survey and maps of the proposed district, and appears to have faithfully performed all the duties devolving upon him under his appointment, and as provided in said act.

Later the engineer made full report to the court as to services rendered and expense incurred, and afterward the chancellor by decree apportioned the cost of the survey among the several counties, according to acreage, and decreed that the same be paid as taxed against them, out of the general fund the counties to be reimbursed by taxes to be assessed against the property holders.

The preliminary cost decreed against it was presented for payment to the board of supervisors of Yazoo county, and payment refused, by order duly entered, and from this order, by proper bill of exceptions, the plaintiff appeals.

The county contends that unless the district is finally organized there is no means by which it can be reimbursed, and this seems true; however, it was in the contemplation of the legislature that the district surveyed would be organized and the expense money refunded to the county. It further contends that the county had no notice and was not a party to the chancery proceedings, and that to compel it to pay the charge decreed against it would be taking its property without legal process.

It seems that, for the purpose of increasing land values and promoting health, the legislature has power to provide for the creation of necessary drainage districts and to require the counties expected to be benefited by the improvement to pay at least the preliminary expense, regardless of reimbursement.

In Jones v. Drainage District, 102 Miss. 796, 59 So. 921 the court said: "A mere reading of the act will disclose that the two main purposes of the organization of the districts are to improve the lands embraced therein for agricultural purposes, and to promote the public health of the inhabitants of that and contiguous territory. While it is true that the financial benefits may be limited to a few landowners, or it may redound to the material interests of many, nevertheless the improvement is for the welfare of the public, and some individuals may derive greater benefits than others. The legislature has decided all these questions, and to the legislature our laws grant this power."

"When any public work is authorized, it rests with the legislature unless restrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties, or other particular subdivisions of the state, or lay the greater share or the whole upon that county or portion of the state specially and immediately benefited by the expenditure." County of Mobile v. Kimball, 102 U.S. 691, 26 L.Ed. 238.

"The state may impose such a burden where, in the wisdom of the legislature, it is considered that it ought to rest." People v. Richmond County, 20 N.Y. 252.

"To declare a law unconstitutional on the ground that a locality is taxed for what might seem to the court more than its just proportion of an expenditure for a public purpose would be a usurpation of the province of the legislature." Gordon v. Cornes, 47 N.Y. 608; Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569.

The act does not seem to violate section 14 of our Constitution, and, the cost of the survey having been imposed upon the county by the legislature, notice was not necessary.

It is also contended by the county that the provision requiring the chancery court to "apportion all costs between the counties in proportion to the benefits assessed to each county, and such expenses as incurred prior to the time when such assessment is made shall be apportioned between the counties in proportion which the chancery court shall deem to be just and equitable," is a delegation of legislative authority. This apportionment of cost is a mere detail, necessarily arising after a general scheme to provide for drainage had beer adopted by the legislature, and is not a delegation of power within the understood rule.

"The legislature cannot delegate its power to make a law; but it can make a law and delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things, upon which wise and useful legislation must depend, which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation." Port Royal Mining Co. v. Hagood, 30 S.C. 519, 9 S.E. 636, 3 L. R. A. 841; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569.

"There is no merit in the contention that the act delegated to the board of supervisors legislative power. The legislature enacted a complete scheme of legislation, providing a method by which landowners may avail themselves of the benefits of the scheme, and the board of supervisors are not authorized to add to or subtract from the law enacted by the legislature. This is so well settled in this and other states, and such laws are so common upon the statute books of nearly all the states, that it is only necessary for us to reaffirm what has already been said before." Jones v. Drainage District, 102 Miss. 801, 59 So. 923.

It is contended that the engineer's appointment was not in accord with the provisions of the act. After the refusal of the original appointee to qualify, a petition was presented to the court setting up this fact, and praying the appointment of plaintiff. The act gives the county no voice in the selection. The petition was presented in the name of the petitioners, but none signed in proper person, but by their attorneys for them, and I think this was a valid selection, at least against this collateral attack.

Under this view, the county is liable, and judgment will be rendered accordingly.

On a former day of this court the judgment was affirmed without written opinion, and afterwards a suggestion of error was filed questioning the right of the court to allow interest on the amount of the judgment.

Judgment reversed.

E. L. Brown, R. R. Norquist and Mayes & Mayes, for appellant.

We are not denying the power of the legislature to provide for the formation of drainage districts. We simply say that it cannot do so, except by due process of law, that it must obey the mandate of the due process clause of the state, and the one of the Federal Constitution, and we say that counties, as well as municipalities, are within those provisions.

Therefore that it is not competent for the legislature to allow, or direct, the chancery court, or any other court, to contract for, or decree, its money to a private citizen, for public or private benefit, without notice to it on a basis deemed "equitable and just" by the particular judge who happens to be called upon to fix the basis. We insist that, if within legislative competency to expend the county funds for both county and intercounty purposes, it must state the basis, or else, if the judicial function of ascertaining the basis "equitable and just" is to be performed by a court, that the counties must have notice, and that the court is powerless to...

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