Collins v. Hollis

• Decision Date: 29 May 1924
• Docket Number: 6 Div. 166
• Parties: COLLINS, Judge, et al. v. HOLLIS.
• Court: Alabama Supreme Court

102 So. 379

212 Ala. 294

COLLINS, Judge, et al. v. HOLLIS.

6 Div. 166

Supreme Court of Alabama

May 29, 1924

Rehearing Denied Dec. 18, 1924

Appeal from Circuit Court, Fayette County; R.L. Blanton, Judge.

Petition of J.S. Hollis for mandamus to J.N. Collins, as Judge of Probate of Fayette County, and J.T. Maddox, as Judge of Probate of Lamar County, to require the appointment of a member of the Board of Drainage Commissioners of Fayette and Lamar Counties Drainage District No. 2. From a decree awarding the writ, respondents appeal. Reversed and rendered.

Gardner J., dissenting.

R.F Peters, of Fayette, and O.E. Young, of Vernon, for appellants.

S.T Wright and W.W. Monroe, both of Fayette, Thos. C. McClellan of Birmingham, and James J. Mayfield, of Montgomery, for appellee.

MILLER J.

Under an act approved March 4, 1915 (Gen.Acts 1915, p. 167), to provide for the drainage of farm, wet, swamp lands so as to promote the public health and general welfare, a corporation known as Fayette and Lamar Counties drainage district No. 2 was declared organized by the probate court of Fayette county. The petition therefor was filed with the probate judge of Fayette county, and the probate judge of Lamar county acted with the probate judge of Fayette county, sitting together at the hearing, as the act directs, because the territory embraced in the district included land in both of the counties. The territory to be drained is known as Hell's creek bottom and swamp, the approximate length of the proposed drainage canals being about 20 miles, and the approximate area of the bottom land is about 4,000 acres. This act of 1915, p. 167, was amended on September 27, 1923 (Gen.Acts 1923, p. 514, art. 40), which forms a part of what is known as the Agricultural Code of Alabama.

When this corporation was organized and established by the probate court as aforesaid, three commissioners were appointed by the court, as section 10 of the original act directs, and they qualified as commissioners. John B. Wheeler was one of the three commissioners appointed by the court. He qualified on or about April 6, 1923, and on February 12, 1924, he tendered his resignation, as commissioner, and it was accepted by the court. Section 10 of the act provides all vacancies on the board shall be filled by the court, but, if a majority in number of the owners of real property in the district shall petition for the appointment of particular persons as commissioners, it shall be the duty of the court to appoint the persons so designated.

J.S. Hollis, a resident of Fayette county, owner of land in this district, and over 21 years of age, made written application to this probate court and the judges thereof to fill the vacancy in office of commissioner caused by the resignation of John B. Wheeler. The probate court, with both judges sitting as the act directs, heard the petition, and refused to appoint a person to fill the vacancy under it, because in their opinion this act (Gen.Acts 1915, p. 167) under which this corporation--Fayette and Lamar Counties drainage district No. 2--was created and organized, and the act amending it in General Acts 1923, p. 514, are unconstitutional and void. John S. Hollis filed petition with the circuit court, verified by affidavit, setting forth the facts as to the organization and establishment of this corporation, the appointment of the commissioners, the resignation of John B. Wheeler, the application to the probate court to appoint a person to fill the vacancy, the refusal of the probate court to make the appointment, and its reasons therefor. This petition seeks a writ of mandamus to compel the probate judges of the counties of Lamar and Fayette, sitting as a probate court, to appoint a suitable person to fill this vacancy on the board of commissioners as the original act and the amendment thereof direct and require.

The defendants J.N. Collins, judge of probate of Fayette county, and J.T. Maddox, judge of probate of Lamar county, answer this petition, and admit the facts stated therein, and say they declined and still decline to appoint a drainage commissioner to fill this vacancy for the Fayette and Lamar Counties drainage district No. 2, because the act (Gen.Acts 1915, p. 167, amended by Gen.Acts 1923, p. 514) is void, as it violates sections 222, 23, and 45 of the Constitution of Alabama, and because it attempts to give the power of assessments to unauthorized units.

The cause was submitted to the court on petition, answer, and agreed statement of facts in writing signed by the parties; and on the hearing the court held neither the original nor the amended act is unconstitutional and void, but that both are valid acts under the police power of the state for promotion of the public health and general welfare. The court granted the petition, directed a writ of mandamus to issue ordering the judges of probate, the defendants, to proceed under the act and appoint a commissioner to fill the vacancy created by the resignation of John B. Wheeler. The defendants, the judges of probate, appeal from that judgment, and it is the error assigned.

The constitutionality of this act (Gen.Acts 1915, p. 167) has been before us and was considered by this court in Harkins v. Smith, 204 Ala. 417, 85 So. 812. It was held that this act did not contravene section 222 of the Constitution, because the territory embraced in the corporation known as "the Fayette and Lamar Counties drainage district No. 1" was not a county or city or town or village or district or other political subdivision of counties as contemplated by section 222 of the Constitution. The court in the opinion did not discuss or refer to sections 23 or 212 of the Constitution of 1901. The validity of this act depends on the construction of it in the light of these two sections of the Constitution when construed together. That part of section 23 of the Constitution pertinent reads as follows:

"The right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association."

Section 212 of the Constitution reads:

"The power to levy taxes shall not be delegated to individuals or private corporations or associations."

This act of 1915, section 1, authorizes and gives the court of probate jurisdiction and power to establish drainage district or districts. Under section 8 of the act upon the hearing of an application to establish a district the probate court may "declare the district organized as a body corporate, giving it a corporate name, *** with power to sue and be sued, to incur debts, liabilities and obligations, to exercise the right of eminent domain *** and the right of assessment as herein provided." The court of probate after the district is established must appoint three drainage commissioners and "such persons when so appointed, *** shall constitute, and are hereby declared to be a body politic incorporated by the name and style *** selected *** by the court of probate." Section 10 of the act.

Thus it is clear and evident that this district No. 2, as established and authorized by the act, is intended to be a corporation with power to sue and be sued; contract debts under its name given it by the court as Fayette and Lamar Counties drainage district No. 2; and the act gives this corporation the power and "the right of assessment as herein provided."

The act provides for the pay of the commissioners, the board of viewers, and rodmen, and gives the probate court authority to fix the amount of compensation for the engineers. The costs, expenses, costs of construction, fees, damages assessed for construction of any ditch or canal to drain the district or other improvement, and the cost of maintaining and repairing it, will be assessed under the act against all the land in the district according to the benefit received in the manner provided by the act.

The final report shall contain a copy of the assessment roll, and be filed with the probate court, and, if on the hearing in the opinion of the court the cost of construction together with the amount of damages assessed is not greater than the benefits that will accrue to the land affected, the court shall confirm the report of the viewers. Sections 20, 21, of the act.

These assessments against the land in the district when made to and are approved by the probate court as the act directs, shall have the force and effect of a judgment as in case of state and county taxes, and shall constitute a first lien and paramount lien, second only to state and county taxes upon the lands assessed for the payment thereof. These amounts are to be collected by the tax collector of the county as state and county taxes are collected, and the tax collector is authorized to sell any land for failure to pay any such assessment thereon. Section 35 of the act.

This act delegates to this corporation, the Fayette and Lamar Counties drainage district No. 2, subject to the approval of the probate court, the right to assess the contemplated improvements in the district on the land therein, which must be approved by the court, if in its opinion the cost of construction with the amount of damages assessed is not greater than the benefits that will accrue to the land affected, and when approved is a lien superior to all others on the land, except the lien for state and county taxes.

The Fayette and Lamar Counties drainage district No. 2 was authorized and organized as a corporation under this original act of 1915, p. 176. When John B. Wheeler resigned, and when his resignation was accepted and the petition filed with the probate judges for a person to be appointed commissioner to fill the...