Culley v. Pearl River Indus. Commission

• Decision Date: 12 January 1959
• Docket Number: No. 41071,41071
• Parties: Lewis L. CULLEY, Dr. Ben N. Walker, Jr., and Hinds County, Mississippi, v. PEARL RIVER INDUSTRIAL COMMISSION.
• Court: Mississippi Supreme Court

Page 390

108 So.2d 390

234 Miss. 788

Lewis L. CULLEY, Dr. Ben N. Walker, Jr., and Hinds County, Mississippi, v. PEARL RIVER INDUSTRIAL COMMISSION.

No. 41071.

Supreme Court of Mississippi.

Jan. 12, 1959.

Avery & Putnam, John C. Sullivan, Lee, Moore & Countiss, Jackson, for appellants.

Watkins & Eager, Watkins, Edwards & Ludlam, Jackson, for appellee.

ETHRIDGE, Justice.

This is an appeal from a final decree of the Chancery Court, First Judicial District of Hinds County, creating the Pearl River Valley Water Supply District (hereinafter sometimes referred to as District). The District's purpose is to construct a large dam and water reservoir in the Pearl River Valley north of Jackson, Mississippi, covering lands in parts of five counties of the State. The issue on this appeal is whether the authorizing act, Senate Bill No. 1724, Miss.Laws 1958, is unconstitutional and void on its face and in the light of the record made in the trial court; or, conversely, whether the District was properly created by the final decree of the Chancery Court. Appellants raise five constitutional questions with reference to the statute which merit discussion. Their principal point is that the Act violates Sec. 17, Mississippi Constitution 1890, because, they assert, it empowers the District to acquire private property by condemnation, not for a public use, and then to rent, lease, or sell it for private use. We do not agree with that interpretation of the statute, or the other assignments of error. We hold that the Act is valid, and affirm the decree creating the District.

I.

Chapter 169, Mississippi Laws 1956, created appellee, Pearl River Industrial Commission. The Governor was to appoint one member to the Commission from each of the five named counties, and such other counties as may elect to affiliate with the Commission. It was authorized to make a survey of the region bordering the Pearl River, and to investigate the possibilities of developing that area from an industrial, irrigational, and recreational standpoint, for the purpose of attracting new industries, conserving available water for irrigational and industrial purposes, protecting against pollution, and adopting a long-range plan of sewage disposal for the area. The Commission was to cooperate with the State Board of Water Commissioners. The Commission was financed in its activities from funds made available by each of the associated counties.

Pursuant to the directions of that 1956 Act, the Pearl River Industrial Commission employed Lester Engineering Company of Jackson, and Ebasco Services, Inc. of New York, an international engineering firm, to make a study of the engineering and economic feasibility of the proposal. That was done, and the lengthy report by these engineers was favorable.

On May 5, 1958, the regular legislative session enacted Senate Bill No. 1724 (Adv.Sh. 13, p. 20), designated as the Pearl River Valley Water Supply District Act (hereinafter sometimes referred to as the District Act). This is a lengthy statute of some 19 pages and 33 sections. In Sec. 2, the Legislature found that the waterways and surface waters of the state are among its basic resources. The preservation, conservation, storage and control of such waters are necessary in order to insure an adequate supply, to premote the balanced economic development of the state, and to aid in flood control, conservation and development of state forests, irrigation of lands, and pollution abatement. Sec. 2 then states:

'It is further determined and declared that the preservation, conservation, storage and control of the waters of the Pearl River and its tributaries and its overflow waters for domestic, municipal, commercial, industrial, agricultural and manufacturing purposes, for recreational uses, for flood control, timber development, irrigation and pollution abatement are, as a matter of public policy, for the general welfare of the entire people of the state.

'(b) That the creation of the Pearl River Valley Water Supply District is determined to be necessary and essential to the accomplishment of the aforesaid purposes and that this Act operates on a subject in which the state at large is interested. All the terms and provisions of this Act are to be liberally construed to effectuate the purposes herein set forth, this being a remedial Act.'

The Act authorized the creation of the Pearl River Valley Water Supply District, as an agency of the State. Its Board of Directors is composed of the present members of the Commission during their present term, a member selected by the Board of Supervisors of each county which becomes part of the District, and one director appointed separately by the Board of Water Commissioners, State Game and Fish Commission, Forestry Commission, and State Board of Health.

The Pearl River Industrial Commission was directed to petition the Chancery Court of the First Judicial District of Hinds County to organize and establish the District. The petition must show the counties to be included, the engineering feasibility of constructing a dam and reservoir, its necessity and desirability, and the general description of the purposes of the contemplated works, including the lands to be overflowed or affected. The "project area' shall mean the physical location of the reservoir, dam and related facilities as shown on the plats filed with the Chancery Court and shall include and be limited to an area of one (1) mile from the shore line of the reservoir at high water. The words 'related facilities' as used in this Act shall mean the facilities indicated on said maps or plats filed with the Chancery Court or otherwise explained in the pleadings filed with the Chancery Court and shall include property, land or areas of land, adjacent to, or in the vicinity of, said reservoir or dam and within a distance of one (1) mile from the high water mark of the proposed shore line of said reservoir as shown on said map, which may be acquired, owned, rented, leased or sold by the District in connection with the recreational or industrial development and use of the Project.'

The defendants shall be each county named in the petition, the State Board of Water Commissioners, and any municipality having a population of over 10,000, which in this District applies alone to the City of Jackson. Sec. 5(d). Process by a publication and by posting notices of the hearing of the petition must be had in each of the counties affected. Sec. 6. The chancery court would then set a date for the hearing. Sec. 7. Sec. 8 provides: 'If upon the hearing of such petition, it is found that such project is feasible from an engineering standpoint and practical, and if the creation of the water supply district under the terms of this Act would meet a public necessity both local and statewide and would be conducive to the public welfare of the state as a whole, such court or chancellor shall so find and shall make and enter an order upon the minutes of the said chancery court stating that the said district to be known as the Pearl River Valley Water Supply District, should be organized subject to all of the terms and provisions of this Act.'

Following this final decree, the chancellor must then order an election in each county in the proposed District, with the required notice thereof. A majority of the qualified electors voting shall determine whether the county becomes a part of the District. After report of the elections to the chancery court, that court shall then enter a final order including the counties so electing within the District. Sec. 9.

Sec. 11 of Senate Bill No. 1724, which grants to the District its essential powers, is the principal section involved on this appeal. The District is empowered to impound overflow and surface water of the Pearl River or its tributaries within the project area by the construction of a dam, reservoir and related facilities, to control, store and preserve the waters, and to use, distribute and sell them. It has the power to construct within the project area all works, plants or other facilities necessary or useful to the project, for processing such water and transporting it, for domestic, municipal, commercial, industrial, agricultural and manufacturing purposes.

Subsection (e) of Sec. 11 grants this power: 'To acquire by purchase, lease, gift or in any other manner (otherwise than by condemnation) and to maintain, use and operate any and all property of any kind, real, personal or mixed, or any interest therein within the project area, within or without the boundaries of the District, necessary for the project and convenient to the exercise of the powers, rights, privileges and functions conferred upon the District by this Act'.

Subsection (f), Sec. 11, describes other delegated powers and their limitations: 'To acquire by condemnation any and all property of any kind, real, personal or mixed, or any interest therein, within the project area not exceeding one quarter mile from the outside line of the 300 foot above sea level contour on each side of Pearl River except as provided for rights of way under Subsection (g) of this section, within or without the boundaries of the District necessary for the project and the exercise of the powers, rights, privileges and functions conferred upon the District by this Act, according to the procedure provided by law for the condemnation of lands or other property taken for rights of way or other purposes by railroads, telephone or telegraph companies. * * * The amount and character of interest in land, other property and easements thus to be acquired shall be determined by the Board of Directors and their determination shall be conclusive and shall not be subject to attack in the absence of manifold abuse of discretion or fraud on the part of such Board in making such determination. * * * Provided further that where any site or plot of land is to be rented, leased or sold to any person, firm or corporation...