Hutchins v. Board of Sup'rs of Alcorn County

• Decision Date: 23 April 1956
• Docket Number: No. 40112,40112
• Citation: 227 Miss. 766,87 So.2d 54
• Parties: W. V. HUTCHINS et al. v. BOARD OF SUPERVISORS OF ALCORN COUNTY, Miss.
• Court: Mississippi Supreme Court

Page 54

87 So.2d 54

227 Miss. 766

W. V. HUTCHINS et al. v. BOARD OF SUPERVISORS OF ALCORN COUNTY, Miss.

No. 40112.

Supreme Court of Mississippi.

April 23, 1956.

Wm. L. Sharp, Corinth, for appellant.

W. C. Sweat, Corinth, for appellee.

KYLE, Justice.

This case is before us on appeal by W. V. Hutchins and others, taxpayers, from a decree of the Chancery Court of Alcorn County Validating $80,000 of Alcorn County, Mississippi, road bonds authorized to be issued by the board of supervisors of said county for the purpose of constructing, repairing and/or rebuilding roads and bridges of said county. The bonds are to be issued pursuant to authority conferred upon the board of supervisors by House Bill No. 278, Chapter 30, General Laws of Mississippi, Extraordinary Session of 1955.

The record shows that during the month of March 1955, heavy rains fell over a large part of northeast Mississippi causing great damage to the public roads and bridges of Alcorn County and other counties in that section of the state, and on March 29, 1955, the governor submitted in writing to the legislature, which was then in session, the matter of amending Section 5, Chapter 241, Laws of 1950, as amended by Chapter 279, Laws of 1950, so as to provide that in cases of emergency in which floods had washed away bridges and roads in any county, the board of supervisors may issue bonds for the purpose of constructing and repairing such roads and bridges without the necessity of an election. The legislature thereupon enacted House Bill No. 278, which was approved by the governor on April 1, 1955.

Immediately after the new act became effective, the board of supervisors of Alcorn County made a survey of the damage done to the roads and bridges in the several supervisor's districts by the heavy rains that had fallen during the month of March; and on April 14, 1955, the board of supervisors adopted an order and entered it upon its minutes reciting that great damage to the roads and bridges of the county had been caused by the recent floods, and that by reason thereof an emergency existed, and declaring its intention to issue $80,000 in negotiable bonds of the county, under the provisions of said House Bill No. 278, for the purpose of constructing, reconstructing and repairing the roads and bridges of the county; and the board fixed Monday, April 18, 1955, as the date on which the board would pass the necessary orders providing for the issuance of the bonds. The board met again on April 18, 1955, pursuant to its adjournment order of April 14, and adopted a formal resolution and order providing for the issuance of the bonds. The board also ordered that the bonds be validated in the manner provided by Title 18, Chapter 1, Sections 4313-4318, Mississippi Code of 1942, and that the clerk advertise the bonds for sale on May 3, 1955. Notice of the sale was duly published, as provided by law, and bids were duly received on May 3, 1955, and the bonds were sold, subject to the approval of their validity by the purchaser's attorney.

A transcript of the record was properly submitted to the State's bond attorney for his approval, and after he had issued his approving opinion the record was filed in the chancery court for validation of the bonds. The chancellor signed an order setting the date for the validation hearing on May 25, 1955. Objections to the validation and the issuance of the bonds were filed by W. V. Hutchins and others, and a new order was then entered fixing the date for the hearing on June 9, 1955.

In their objections to the validation of the bonds, the objectors alleged: (1) That House Bill No. 278 was invalid for the reason that the subject matter of the bill had not been included in the proclamation of the governor by which the special session of the legislature had been convened, as provided in Section 121 of the State Constitution; (2) that House Bill No. 278 did not authorize the issuance of county-wide bonds; (3) that no county-wide emergency existed on April 14, 1955, such as to authorize the issuance of the bonds; (4) that the several supervisor's districts had sufficient funds on hand at that time to defray the costs of repairing the roads and bridges without resorting to a bond issue; (5) that the board of supervisors acted arbitrarily and without sufficient foundation in fact in determining that an emergency existed; and (6) that the bonds were attempted to be issued without legal notice to the taxpayers of Alcorn County and without any opportunity for the taxpayers to be heard, and that the issuance of the bonds under such circumstance would result in the taking of their property without due process of law, in violation of the Fourteenth Amendment to the Federal Constitution, and in violation of Article 3 of the State Constitution.

Upon the hearing before the chancellor many witnesses testified concerning damage done to the county roads and bridges by the excessive rains during the month of March. Testimony was also introduced to show the amounts of road funds on hand in the county treasury to the credit of each of the several supervisors' districts at the time the orders were adopted providing for the issuance of the bonds and the additional amounts that would probably be received during the remainder of the fiscal year.

At the conclusion of the hearing the chancellor found that the rains of March 19 to March 21 had caused unusual floods in the northeastern section of the state; that the main highways had been closed temporarily by reason of high waters; that the county roads and bridges were damaged much more than the main highways; and that the roads and bridges of Alcorn County had been damaged to the extent of at least $100,000. The chancellor found that, while it was true that some of the districts had sufficient funds on hand to defray the costs of repairs in those districts, if the extra expenditures were made out of the funds on hand, such expenditures would hamper the road and bridge maintenance and construction program during the year; and that other districts which had suffered still greater damages were faced with a real emergency because of the damage done by the heavy rains. The chancellor found that an emergency existed in the county within the meaning of House Bill No. 278, and that the board of supervisors did not abuse its discretion in declaring such emergency to exist.

The chancellor found that House Bill No. 278 had been constitutionally enacted, and that the act did not violate the due process clauses of the state or Federal constitution; and the chancellor entered a decree validating the bonds. From that decree the objecting taxpayers have prosecuted this appeal.

The first point argued by the appellants' attorneys as ground for reversal on this appeal is that the court erred in holding that House Bill No. 278 had been constitutionally enacted.

It is the appellants' contention that the legislature had no power to consider the subject matter of House Bill No. 278, for the reason that the subject matter of that act had not been included in the list of subjects submitted in the governor's proclamation convening the legislature in extraordinary session. But we think there is no merit in this contention. Section 121 of the Constitution of 1890 provides that: 'The governor shall have power to convene the legislature in extraordinary session whenever in his judgment the public interest requires it. Should the governor deem it necessary to convene the legislature, he shall do so by public proclamation, in which he shall state the subjects and matters to be considered by the legislature when so convened; and the legislature when so convened, as aforesaid, shall have no power to consider or act upon subjects or matters other than those designated in the proclamation of the governor by which the session is called, except impeachments, and examination into the accounts of State officers. The legislature when so convened may also act on and consider such other matters as the governor may in writing submit to them while in session.' The journals of the House and Senate showed that the governor on March 29, 1955, submitted to the legislature for its consideration the subject matter embraced in House Bill No. 278. We therefore hold that the legislature had the power to consider and act upon the subject matter stated in House Bill No. 278, and that the law was constitutionally enacted.

It is next argued that House Bill No. 278 is violative of the due process clauses of the State and Federal Constitutions, for the reason that the statute does not provide for the giving of notice to the taxpayers and an opportunity to be heard on the matter of the issuance of the bonds and the levying of a tax to pay the same, prior to the issuance of the bonds. And the appellants cite in support of their contention Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896, in which the court had under consideration Chapter 128, Laws of 1916, which authorized the boards of supervisors and the mayor and board of aldermen or other governing bodies of municipalities to erect sea walls for the protection of public roads or streets extending along the beach or shores of any body of water, and to lay special assessments on abutting property to help defray the cost of construction. The Court held in that case that the sea wall act was a local improvement measure, to be put into effect by the levying of special assessments, and that the act was inoperative and void for the reason that it did not require the giving of notice to the property owners and an opportunity for a hearing. But the decision in the case is not controlling in the case that we have here. House Bill No. 278 is not a local improvement measure providing for public improvements, the cost of which is to be defrayed in whole or in part by special assessments to be made against the property benefited.

House Bill No. 278 is an amendment to Section 5 of Chapter...