Hamilton v. Board of Sup'rs of Lafayette County

• Decision Date: 28 May 1923
• Docket Number: 23429
• Citation: Hamilton v. Board of Sup'rs of Lafayette County, 96 So. 465, 133 Miss. 14 (Miss. 1923)
• Parties: HAMILTON et al. v. BOARD OF SUP'RS OF LAFAYETTE COUNTY et al
• Court: Mississippi Supreme Court

96 So. 465

133 Miss. 14

HAMILTON et al. v. BOARD OF SUP'RS OF LAFAYETTE COUNTY et al

No. 23429

Supreme Court of Mississippi

May 28, 1923

Division A

Suggestion of Error Overruled June 18, 1923.

APPEAL from chancery court of Lafayette county, HON. J. G. MCGOWEN Chancellor.

Proceeding by the board of supervisors of Lafayette county and Taylor consolidated school district to validate bonds of such district, wherein J. I. Hamilton and others taxpayers filed objection. From a decree validating the bonds, the objecting taxpayers appeal. Reversed, and judgment rendered for the taxpayers.

Judgment reversed.

Harry M. Bryan, for appellants.

It is our contention that chapter 464, Laws of 1922, is clearly unconstitutional, null and void, for the following reasons to-wit: (a) The act is local, special, and private and directly violates paragraph "p" of section 90 of the state constitution. (b) The said act violates article 1, section 1, and section 170 of the state constitution and is an attempt by the legislature to exercise judicial functions. (c) The said act is a denial to appellants of due process of law. (d) The said act seeks to deny to appellants their suffrage rights guaranteed by the constitution.

In the first place, not only is it a fact that there was no notice of an election given prior to the issuance of these bonds, but such fact was determined by express order of the board of supervisors of Lafayette county at the time of calling another election.

Likewise, the proof of publication filed in the papers shows definitely that this is true. In Monroe County to Use of Splunge Consolidated School District v. Minga et al., 90 So. 443, it was decided that bonds issued without the notice required by chapter 207 of the Laws of 1920, were absolutely null and void. Bear in mind that at the time of ordering the election in the instant case and at the time the board declared the election to be void, chapter 207 of the Laws of 1920, comprised full jurisdictional directions to be observed by the board in predicating this issue. The said order of the board declaring the election to be void was entered on March 7, 1922, and the act of the legislature referred to above was approved April 4, 1922.

Haley v. State, 108 Miss. 899, 67 So. 498, held that: "By section 170 of article 6 of the constitution, board of supervisors are made a part of the judicial department of the state." The above being true, the legislature clearly exceeded its constitutional authority in declaring the above-mentioned election held on March 4, 1922, to be valid both as to its calling and holding. Since when has the legislature been given constitutional power to determine matters of fact in the face of a judicial board? The minutes of the board say on their face that there was no legal election--the legislature says that not only was there an election but that it carried. Lawson v. Jeffries, 47 Miss. 686, holds that the separation of the legislative, judicial, and executive powers of the government is fundamental both under the Federal and state constitutions and cannot be violated even by the ordinance of a constitutional convention. See 12 C. J. 807; Boutwell et al. v. Board of Supervisors of Jasper County, 91 So. 12; Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125; Edwards v. Board of Supervisors, 124 Miss. 165, 87 So. 8; Adams v. Bank, 103 Miss. , 60 So. 770. The case of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, is decisive of the question of the validity of these bonds.

It may be called by another name, but any act of the legislature of Mississippi which flatly contradicts an order of the board of supervisors of Lafayette county as to the holding of an election--its legality and how it resulted [133 Miss. 17] --and authorizes the board to issue the bonds of a single, isolated, named district is a local private, or special law within the express condemnation of the paragraph of the section referred to above.

I should here like to call to the attention of the court the cases cited by the late HON. J. B. HARRIS, State's Bond Attorney, in his opinion filed in the papers of this cause: Griffith v. Mayor, etc. Vicksburg, 102 Miss. 1, 58 So. 781. The validating act therein construed was a general statute applicable to "municipal bonds heretofore authorized by a majority of the qualified electors thereof voting," etc. It was effective throughout the state and applicable to a general class. Bacot v. Hinds County, 86 So. 765. The main question in that case was the constitutionality of chapter 28, Laws Ex. Sess. 1917, creating a state's bond attorney. The court did say, however, "Except in so far as the constitution may otherwise provide, the legislature has full power to provide both for the issuance of bonds by municipalities, counties, and other public bodies of like character, and for the validation before their issuance of bonds proposed to be issued by such bodies without authority so to do, so that chapter 28, Laws Ex. Sess. 1917, is valid unless it violates some provision of either the state or Federal constitution." It will be noted that the bonds sought to be validated were road bonds--a field not prohibited by section 90 of the state constitution. Parker v. Board of Supervisors of Grenada County, 88 So. 172, held that road bonds issued under the general statutes, chapters 207 and 276 of the Laws of 1920, and validated under the State Validation Act of 1917, could not be attacked after the decree of the chancellor was entered confirming and validating said bonds.

In not a single one of the cases cited by the State's Bond Attorney were the bonds issued for purposes enumerated in section 90 of the state constitution. Middleton v. City of St. Augustine, decided by the supreme court of Florida, 29 So. 421, and cited by counsel for appellees in the presentation of this case below, simply referred to "the rule in respect to statutes curing defects in legal proceedings, where they amount to mere irregularities, not extending to matters of jurisdiction, and in the absence of constitutional limitations." See Town of Enterprise v. State, 10 So. 740; City v. Stamps, 62 Iowa 303, 17 N.W. 518, holding: "The legislature, prohibited by constitution, art. 3, section 30, from making local or special laws, cannot indirectly accomplish that result by an act validating a void municipal ordinance." Read v. City of Plattsmouth, 107 U.S. 568, 2 S.Ct. 208, 27 L.Ed. 414, is distinguishable.

It is my firm conviction that one of the outstanding reasons for the unusually high taxation that is burdening the people of the state today is the ease in which solemn obligations, such as bonds and certificates of indebtedness, are issued. For some reason we have drifted into a system of lavish public spending. This cause presents a monumental example of how an issue can be made without the approval of a majority of the qualified electors of a district.

L. C. Andrews, for appellees.

The contention of appellants is that chapter 464, Laws of 1922, is unconstitutional, null, and void, in that it is special and private legislation, and is an attempt by the legislature to exercise judicial functions, and is a denial to appellants of due process of law and their suffrage rights. An examination of the authorities discloses that the act is neither special nor private legislation. It is a curative act and one which the legislature had full power to enact. There is no doubt about the act being constitutional and that the legislature had full power to authorize these bonds in the first instance without an election and without previous notice to the taxpayers. What the legislature could have done in advance it can do subsequently; there being no constitutional limitation upon the legislature effecting this act. See Griffith v. Vicksburg, 102 Miss. 1; Bacot v. Hinds County, 86 So. 765, 124 Miss. 231; and Parker v. Board of Supervisors of Grenada County, 88 So. 172, 9 R. C. L. 1099; Charlotte Harbor & N. Ry. Co. v. Wells, et al., Board of Commissioners of DeSoto County, Vol. 43, No. 1, advance sheets U. S. Rep. 4.

The contention that because the board of supervisors declared the election void the legislature was without power to pass the act curing the defect in the notice given is without merit. Givens v. Hillsborough County, et al., 35 So. 90.

The contention of appellant is that such legislation is a usurpation of judicial power by the legislature, and in contravention of the distribution of governmental powers made by the constitution of the state. The curative act did not question the correctness of this decision, nor attempt to adjudicate the regularity of the previous acts of the county commissioners, but, recognizing the binding force of the judgment of the court, undertook to confer authority where before there was none. The contention that the act is special or private legislation is also without merit. A statute intended to remedy or cure some particular condition is not regarded as special legislation as is illustrated by laws curing defects in the organization of road and school districts. State v. Squires, 26 Iowa 340; State ex rel, West v. Des Moines, 31 L. R. A. 186, 90 N.W. 527. The rule that curative acts are...