Cox v. Wallace

Decision Date20 November 1911
Docket Number15487
CourtMississippi Supreme Court

56 So. 461

100 Miss. 525


No. 15487

Supreme Court of Mississippi

November 20, 1911

APPEAL from the chancery court of Tippah county, HON. D. M. KIMBROUGH, Chancellor.

Suit by J. E. Cox against W. E. Wallace et al., to determine the validity of the organization of Muddy Bottom Swamp Land District No. 1. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.


W. A. McDonald and Lester G. Fant, for appellant.

Our contention is that the said sections of the Code, 371-391 inclusive, which is chapter 70 of the Laws of 1902, brought forward in the Code of 1906, are repugnant to the Constitution of the state of Mississippi.

1st. Because it attempts to give to the board of supervisors powers in addition to the powers given to the board in section 170, of the Constitution.

2nd. The said sections are repugnant to the Constitution because in article 11 of said Constitution, providing for the levee system, the Constitution provides for such districts as shall exist in the state for the reclamation of all the alluvial land in said state.

3rd. Because under section 17 of the Constitution of the state of Mississippi, a provision is made for the taking of private property for public uses.

(a) Because said section provides whenever an attempt is made to take private property for a use alleged to be public, a question of whether the contemplated use be public shall be a judicial question.

(b) Because the use for which the land and taxes are proposed to be taken by said sections 371-391 inclusive, are not public uses.

4th. Said sections are repugnant to the Constitution because in section 33 the legislative power of the state is vested in the legislature, and said legislature cannot delegate to any board of supervisors of any county its powers.

5th. Because said sections provide for a tax that shall not be assessed according to the true value of the land as is provided in section 112 in said Constitution.

6th. Because under sections 371-391 inclusive, there is an attempt to take the property by the rights of eminent domain, and by taxation without due process of law.

Said sections are contrary to section 90, of the Constitution, providing that the legislature cannot pass local, private or special laws, in any of the following enumerated cases of such matters that shall be provided for only by general laws (See subhead "Q" relating to stock laws, watercourses and fences), citing the following authorities: Brown v. Beattie, 34 Miss. 227; Black on Constitutional Law, page 404; Alcorn v. Hamer, 38 Miss. 749; Williams v. Cammack, 27 Miss. 209; 3 Words & Phrases, page 2245, and the following cases; Catch v. City Des Moines, 18 N.W. 310, 312; McGabbott v. City of Omaha, 58 N.W. 543-546; Scutter v. Jones, 32 N.E. 221-223; Ulman v. City of Baltimore, 11 L. R. A. 224; People v. Mosier, 8 N.Y.S. 621; People v. Henion, 19 N.Y.S. 488-491; Violet v. City of Alexandria, 23 S.E. 909-11, 31 L. R. A. 382.

Thos. E. Pegram, for appellee.

In the original bill in this cause, complainant, appellant here, alleges and charges that sections 371 to 391, inclusive, of the. Code of 1906, are violative of, and repugnant to, five separate provisions of the state Constitution, namely section 170, article 11; sections 17, 33, and 112. In the brief of appellant's counsel, two additional provisions are named, which he alleges the said Code sections violate, namely section 14, and sub-section "Q" of section 90. Whether counsel for appellant may now submit and have considered by this court alleged grounds of unconstitutionality of said Code sections, which grounds were not mentioned or set up in the original bill, is here submitted to the court's consideration.

To warrant a court, in declaring an act of the legislature unconstitutional, the act must be clearly and plainly violative of the fundamental law. Cole v. Humphrey, 78 Miss. 163. The constitutionality of a law is prima facie presumed, and all doubts are resolved in favor of its constitutionality, and where there is a reasonable doubt of its constitutionality the courts must uphold it. Natchez & S. R. Co. v. Crawford, 55 So. 588.

None of the Code sections, under consideration, violate section 170 of the Constitution, for the closing clause of that section provides that the board of supervisors may "perform such other duties as may be required by law." The reclamation of swamp lands, as provided in the Code sections, is certainly within the quoted clause. Howe v. State, 53 Miss. 57, and Ex parte Fritz, 86 Miss. 210. In rendering the opinion of the court in the Fritz case, Cox, J., named numerous duties and powers conferred on the board of supervisors by legislative grant, and among these powers, is specifically named, "the drainage of swamp lands" (see bottom of page 221, said opinion). It is true that the reclamation of swamp lands is not enumerated among the duties of the board of supervisors, as set out in section 307 of the Code of 1906. The fact that certain duties are enumerated in said section of the Code does not prohibit the legislature from conferring other duties on the board by additional legislative enactment, as it did in the sections under consideration.

How, by any stretch of the imagination, the sections are violative of article 11 of the Constitution, I am unable to see. Article 11 provides for a system of levees, the purpose of which is to keep the water from the Mississippi river from overflowing a large portion of the delta. The sections of the Code provide for an entirely different thing, namely, for the draining of lands which are swampy or subject to overflows. I take it that the court will not, for one moment, seriously consider a proposition so fallacious.

Appellant contends that section 372 of the Code violates section 17 of the Constitution, on two grounds, namely, (a) that by the said Code section a power is given to take private property for a use not public; (b) that the said act provides for the taking of property for a public use, without providing that the question as to whether the contemplated use be public, shall be a judicial one. In support of the first ground, he insists that the swamp land district, the subject of this litigation, is a private enterprise. There are four thousand acres of land in the district, and the exhibits to the original bill show that there are at least one hundred and fifty owners of the said land. "It is never deemed essential that the entire community, or any considerable portion of it, shall directly enjoy or participate in an improvement or enterprise in order to constitute a 'public use,' within the meaning of those words as used in constitutional provision relative to the condemnation of private property." In re Madera Irr. Dist., 92 Cal. 296; 6 Words and Phrases, p. 5830, right column, for numerous judicial definitions of the words "public use," in this connection, and in line with the above definition, see 6 Words and Phrases, pp. 5831 and 5827, inclusive. In regard to that portion of said section 372 which gives to a landowner of the district, whose land does not reach the channel, the right to have a right of way from his land to the channel, so that his land may be drained, by condemnation proceedings, in the name of the commissioners according to chapter 39 of the Code of 1906. This is a part of the general scheme of drainage, under these sections, and may be considered as a part of the general benefit and public use. Even though this small portion of the said section 372, might not be in strict accordance with the constitutional limitations, this court would not declare the whole law unconstitutional. In the case of Adams v. Standard Oil Co., 53 So. 692, it was declared that the general privilege tax laws were not unconstitutional, notwithstanding the fact that the provision therein, exempted confederate soldiers, was unconstitutional. The legislature would doubtless have enacted the swamp land law, without the provision in regard to the right of way, that might be procured by one landowner across the land of another, so as to reach the channel, had it thought that this feature of it might be invalid. In regard to the second ground, (b) The board of supervisors, under whose supervision, the swamp land statutes are carried into effect, is a judicial body, as well as a legislative and executive. I submit that since the use for which the land may be taken, as a right of way for the main channel, is so manifestly public, that the statute is well within the limitation. For a discussion of judicial question, see 6 Words and Phrases, page 5832, and authorities there cited.

On the proposition that these Code sections violate section 33 of the Constitution, that is, that they attempt to delegate to the board of supervisors of the several counties the powers which belong only to the legislature:

These sections are merely a statutory provision, which may be carried into effect, on a certain conditions, just like local option and other similar provisions, which have been declared constitutional; there are one of two conditions which must be met before the board can take any action whatever, viz., the original petition must be signed by one-third of the landowners, who own at least one-half of the land in the proposed district, or signed by one-half of the landowners who own at least one-third of the land in the proposed district. The fact that the statute fails to provide that a majority of the land or a majority of the landowners, or both, must be represented on the petition, does not in my judgment make it unconstitutional, nor do the authorities cited in appellant's brief so indicate. When this feature of the sections is viewed in the light of Alcorn v. Hamer, 38 Miss. 652; Barnes v. Board of Supervisors, etc., 51 Miss. 307, Lawson v. Jefferies, 47 Miss. 707,...

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