Haley v. Drainage Com'rs of Leflore County
| Decision Date | 05 June 1911 |
| Docket Number | 15211 |
| Citation | 55 So. 353,99 Miss. 556 |
| Court | Mississippi Supreme Court |
| Parties | M. E. HALEY v. DRAINAGE COMMISSIONERS OF LEFLORE COUNTY |
APPEAL from the chancery court of Leflore county, HON. M. E. DENTON Chancellor.
Suit by M. E. Haley against the Drainage Commissioners of Leflore county. Decree dismissing the bill and plaintiff appeals.
The facts are stated in the opinion of the court.
Affirmed.
Gwin & Mounger, for appellee.
Conceding for the time being, the validity of the law under which the order of the commissioners and the decree of the chancellor levying said assessment and providing for the issuance of said bonds were made, we submit that the chancellor and the said commissioners were without jurisdiction and without authority to pass said order and decree, for the reason that the original petition filed in said matter praying for the organization of said drainage district does not set forth or show the names of the owners of the several tracts of land mentioned therein, to be embraced in said district. Said petition set forth that "the proposed drainage district embraces the following lands in Leflore county, Mississippi to wit: Sections 19, 20, 21, 22, 27, 28, 29, 30, 31, 32, 33, 34, in T. 19, R. 2 W., also sections 3, 4, 5, 6, 7, 8, 9, 10, and 15 in T. 18, R. 2 W." In the next paragraph said petition recites that "the land embraced in the proposed drainage district are owned by the following named persons, with the postoffice address of each following his name," and thereupon follows the list of all landowners with their postoffice addresses, but said petition does not show which landowners owns any particular or part of said land.
The statute providing for the filing of said petition (Sec. 1684, Code 1906, sec. 3, chap. 132, acts of 1906), provides that said petition shall set forth the proposed name of said drainage district, the necessity for the same," with the description of the lands to be included in said drainage district, of the name of the owners, when known, together with the postoffice address of such owner, if the same can be ascertained."
We submit that this statute contemplates and requires that the owner of each several tracts of land shall be given in said petition as the owner of such tracts, and that this petition does not meet with this requirement, and as this is a proceeding in invitum the requirements of the statute must be fully met.
It is contended that section 1711 of the Code of 1906, section 30, chapter 132, of the Laws of 1906, obviates this imperfection in the organization of the district, and that the judgment of the chancellor providing for said assessment is conclusive that all prior proceedings were regular and according to law, but we submit that this statute could not have this effect if the court was without jurisdiction in the matter. It will be borne in mind that this is a proceeding by which it is sought to force supposed benefits upon the landowners, benefits unsought by many of them, and to force them to pay for the same, against their will, by confiscating and selling their land in case of their failure or inability to pay. Every step provided by the statute must be complied with, every requirement of the statute must be fully met in such a proceeding. " Whenever a new or special power is given by legislation, it must appear upon the face of proceedings thereunder that the statute granting the power has been strictly pursued, otherwise the proceeding will be void." Brown v. Owen, 75 Miss. 324. And if the legislature had the power to enact such a statute at all, it certainly did not have the power to make any decree or judgment or order in such a proceeding conclusive of facts contrary to the facts shown by the record in the proceeding; and this petition is an essential part of the record and that part of the record which gave jurisdiction to the court, if it had jurisdiction.
The decree of the chancellor and the order of the commissioners making said assessment, both of which were made on the 2d day of September, 1910, provide that the said assessment and the several installments thereof shall bear interest at the rate of six per cent per annum from date until paid paid.
The statute providing for said assessment (Section 1703, Code of 1906, section 22, chapter 132, acts 1906) provides that "the assessment and the installments thereof shall draw interest at the rate of six per cent per annum from the time of the confirmation until paid."
A deed of trust which secures the payment of a promissory note which bears interest from date until paid, could not beforeclosed until the maturity of the note, although it provides for its foreclosure upon default in payment of interest. There could be no default in the payment of said interest until the maturity of such note, because the interest would not be due until the date of the maturity of the note.
Yet, the said order and decree provide for the issuance of bonds bearing interest payable annually, although there is no provision in the statutes, nor in said order or decree, for any tax levy or assessment for the payment of said interest annually.
It is contended that section 1709, Code 1906, or section 28 of chapter 132, acts of 1906, provides for the levy of an annual tax by the board of supervisors. These sections simply provide for the report by the county treasurer of the bonds outstanding.
No where is the power conferred upon the board of supervisors to levy any tax and the power to levy such a tax cannot be implied. If it is implied, when is it due and payable, and how much does it amount to? It cannot be said that the amount is the amount of the interest due annually, because the cost of collecting the tax would not be provided for, nor would the treasurer's commissions be included, and if these costs of collection and handling are deducted the amount would be insufficient to pay the interest. It is contended that the legislature intended to confer this power upon the board of supervisors by these sections of the drainage acts. We are unable to say what the legislature intended to do in this regard, but we confidently contend that the legislature did not confer this power upon the board of supervisors and that said board is without authority so to do. We submit that if the legislature intended to confer this power, it is a case of failure to carry out its intention similar to the parts of the Code chapter upon municipalities relative to one municipality extending its boundaries so as to include the territory of another municipality, which were passed upon in the case of Village of Gandisi v. Town of Seminary, 75 Miss. 315. This being true, bonds bearing interest payable annually are not in conformity to the provisions of the statute nor are they issued in pursuance of the power conferred on the drainage commissioners by the statute, and we submit that the said commissioners can issue bonds only as provided by the statute and that any bonds issued by them which are not in strict conformity to the statute are invalid as to both the principal and interest.
We submit that the drainage law, as printed in the Code and as embodied in chapter 132 of the acts of 1906, is invalid and not a part of the public statutes of the state of Mississippi, and that there is no provision of law for the issuance of said bonds or for the creation of said district as attempted in this matter.
The court is presumed to know what the public statutes are, and it requires no evidence to show the court what is embraced in said statutes. It will look to the enrolled bills and duplicate of the Code in the secretary of state's office in order to inform itself in case of doubt. Nugent v. Jackson, 72 Miss. 140; Hunt v. Wright, 70 Miss. 298; Telegraph Co. v. Shannon, 91 Miss. 476; Telegraph Co. v. Morgan, 92 Miss. 108.
The memoranda signed by the Code Commissioners printed on the second page of the Code of 1906, immediately following the preface, and the foot note inserted by the commissioners immediately following section 1 of said Code, show that chapter 39 entitled "Drainage District" is not enumerated in section 1 of said Code nor is it named or mentioned therein.
The act adopting said Code describes the Code so adopted as "The Mississippi Code of 1906 of the public statute laws of the state of Mississippi, compiled by authority of the legislature by A. H. Whitfield, T. C. Catchings and W. H. Hardy, Commissioners, and reported to the legislature by them, and revised, amended and adopted by the two houses of the legislature, an enrolled draft (of) which has been prepared by the joint revision committee of the two houses appointed for that purpose."
The court knows that said chapter 39 entitled "Drainage District," as printed in the Code, was not compiled by said commissioners and reported to the legislature by them. Therefore, said chapter 39 is not described and pointed out as a part of said Code in said act of adoption. We must, therefore, look to section 1 of chapter 1 of the Code to determine of what the Code consists and we find that said chapter 39 is not designated as a part of the Code in said section 1.
It is contended that said chapter 39, although not named or enumerated in section 1 of said Code, is contained in the duplicate of said Code in the secretary of state's office and that, therefore, the same is a part of said Code. We submit, however, that if this is true, the court has no right to presume that the legislature made a mistake and that the legislature had the right, in adopting said Code, to omit from said Code any part of said duplicate that it saw fit. We submit that section 1 of chapter 1 of said Code shows definitely and certainly what the legislature intended to be the Code of Mississippi and that unless ...
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