Huston v. Mayo

• Decision Date: 09 June 1919
• Docket Number: 2807
• Citation: 82 So. 334,120 Miss. 523
• Court: Mississippi Supreme Court
• Parties: HUSTON v. MAYO ET AL, DRAINAGE COMMISSIONERS

82 So. 334

120 Miss. 523

HUSTON v. MAYO ET AL, DRAINAGE COMMISSIONERS

No. 2807

Supreme Court of Mississippi

June 9, 1919

Division A

1 DRAINS. Local assessments. Taxing district. Tax.

The money to be collected from the landowners of a drainage district created under Laws 1914, chapter 269 (Hemingway's Code, section 4434 et seq.) for paying the expenses of the district is a local assessment and not a tax and may be collected without submission of a bond issue; the district so created not being a taxing district within Laws 1918, chapter 209, section 2.

2 DRAINS. Drainage district.

Under Laws 1914, chapter 269 (Hemingway's Code, section 4434 et seq.), relating to drainage districts, the creation of a drainage district, and the incurring of the financial obligations resulting therefrom, are not to be determined by the electors thereof as such, who, unless they own land are not interested but by the landowners themselves.

HON. A Y. WOODWARD, Chancellor.

APPEAL from the chancery court of Neshoba county, HON. A. Y. WOODWARD, Chancellor.

Bill for injunction by Henry A. Huston against A. J. Mayo and others, Commissioners of Luneluah Drainage District. From an order dismissing the bill, complainants appeal.

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

Affirmed.

J. B. Hillman, for appellant.

We submit that the court manifestly erred in dissolving the injunction in this cause and dismissing the bill. The court will understand that this suit is predicated upon chapter 209, Acts of 1918, and the decision of this court construing the said act in the case of Madison county, et al. v. Howard, 80 So. 524. We cannot understand upon what reason the lower court predicated his decree in dismissing the bill of appellant in the face of the language of the Act referred to and the decision of this court construing the said act. Since the institution of this suit this court has again been called upon to construe the same act in the case of Heidelberg, et al. v. Batson, Mayor, et al., and in passing upon the latter case adhered to the same construction as announced in the Madison County case.

It is true as we understand the contention of counsel of appellees that they will rely upon the idea that there is a distinction between drainage bonds, or bonds for drainage improvements, and the character of bonds under consideration by the court in the Madison County case, but the opinion of this court in the Forest County case, in our judgment, fully answers the contention upon the part of appellees, and establishes clearly that the Act of 1918, supra, applies to every character of bond that is provided for by the laws of the state of Mississippi. Relying absolutely, as we do, upon the Act of 1918 and the two decisions referred to, and feeling that it would be burdensome to the court to discuss these cases, the principals announced in them being fresh in the minds of the court we respectfully submit that the decree of the Chancellor rendered in this cause is manifestly erroneous and the cause should be reversed.

J. B. Harris, bond attorney, amicus curiae.

I am filing this brief as amicus curiae because, as state's bond attorney, I have had referred to me for the purpose of validation certain bonds proposed to be issued by a sub-levee district created under the provisions of chapter 276 of the Acts of 1914. The proceeding before the court arises under chapter 269 of the acts of 1914, relating to drainage districts, but the question presented in each case is the same.

When the matter of the bond issue for the sub-levee district was referred to me, after a careful examination of the statute, I rendered an opinion to the levee board that chapter 209 of the acts of 1918, section 2, had no application to such bonds, and that an election was not necessary. That in fact an election under the Acts of 1918, section 2, which provides that no interest bearing obligation can be created unless authorized by a majority of the qualified electors, who shall vote in an election called for that purpose might defeat the manifest purpose of the Acts of 1914, chapter 276, and work a great injustice to the landowners who were interested in the formation of the sub-levee district and further that no election was provided for in the Act, and that under the purpose and scheme of the Act, there was no one authorized to call an election. In other words in my view, to apply the Acts of 1918 to cases of this character would be unreasonable application of the Act and lead to practical absurdity in that the qualified electors in the sub-levee district not owning any land and not being at all affected by the assessment, might defeat the scheme, although all of the land-owners in the district who alone were to pay the taxes were in favor of the assessment. See; 2 Lewis' Southerland Statutory Construction, section 488; "Cessante Ratione Legis Cessat Ipsa Lex." 2 Broom's Legal Maxims, 149.

It must be observed that the Drainage Act, chapter 269, leaves the matter of the establishment of the district entirely to the landowners, to be effected by the public improvement desired. The sub-levee Act, chapter 276, requires for its establishment a petition signed by a majority of the landowners of the district. In the drainage district the proceedings are inaugurated by a petition signed by at least ten per cent. of the landowners in the district. It might transpire that none of these landowners are qualified electors, they might all be nonresidents, as the case might be. They might all be women or all minors. Their qualifications to participate in the proceedings of the establishment of the subdrainage district or sub-levee district does not depend upon their being qualified electors, but upon their being landowners.

The manifest purpose of the Act of 1918, section 2, was to do away with the scheme which had heretofore prevailed by which the taxing authorities could, upon a petition of a certain number of qualified electors much less than a majority, issue bonds, unless a counter-petition was filed within a given time. In that scheme, a petition signed by twenty per cent. of the qualified electors in the taxing district could impose a debt upon the district unless a counter-petition was filed within a given time. Very frequently bond issues went through and the taxpayers did not wake up to the fact until after the debt had been imposed and it was too late.

Chapter 209 of the Acts of 1918, manifestly relates to the issuance of bonds by counties, municipalities and taxing districts which are to be liquidated by a general taxation, and where the burden falls upon all of the tax payers in the district, and does not relate to special assessments where only a certain class, not necessarily qualified electors, and a certain specific class of property bears the burden. The drainage Act expressly provides, section 2, that women, whether married or single owning land, minors and other parties, not qualified electors and parties acting in a representative capacity may participate in the proceedings for the establishment of the district. Another view is, that the issue of bonds does not create the debt or obligation; that the obligation or debt is created by the assessment of the land, which is in the nature of a judgment and fixes the liability. The bonding feature as shown by the Act is a mere matter of convenience to the land owners, enabling them to pay their assessment in installments and not all at one time. The act, however, provides that any landowner may pay the entire assessment at once with accrued interest, if any, against his land providing the payment is made before the bonds are issued by the district. The bonds are secured by a lien on the land in the levee district or drainage district, as the case may be.

I respectfully submit that the Act of 1918, section 2, does not apply to cases of the character under consideration and that none of the reasons for the passage of the act exists in cases of this character.

E. S. Cooper, S.E. Wilson and J. N. Flowers, for appellees.

I. The drainage scheme created by chapter 195, of the Laws of 1912, as amended by chapter 269, of the Laws of 1914, contemplates special tax assessments. The land in the district is burdened in proportion to its benefits. There is no burden of taxation to be borne except that which is placed upon the land and no land is burdened except that which is benefitted. There is no tax imposed analogous to the personal road, street or poll tax collected in other taxing district and under other schemes. There is no personal property tax. The organization of the district and the making of the assessments and the proceedings with respect to the issuance of bonds are in the nature of a proceeding in re. There is no ad valorem tax. Land is not paid on in proportion to its value but in proportion to its benefits. The cheapest land may pay the highest tax. It is a redemption plan, a reclamation scheme. The persons concerned are the owners of the land which has to bear the burden. A person in the district who owns no land is not interested, not even if he owns personal property. One may be a qualified elector but the creation of the district and the issuance of bonds in no wise affects his interest unless he owns land.

II. Before a district is organized publication is made in this published notice, the land proposed to be incorporated in a district is described so that every landowner may appear before the board of supervisors on a day certain and present his objections, if any he has. After the district is organized and the drainage commissioners have assessed the benefits and damages to accrue upon each piece of land by reason of the making of the improvement proposed, another notice is given to the...