Jackson & E. Ry. Co. v. Burns

• Decision Date: 13 June 1927
• Docket Number: 25958
• Parties: JACKSON & E. RY. CO. v. BURNS et al. [*]
• Court: Mississippi Supreme Court

113 So. 908

148 Miss. 7

JACKSON & E. RY. CO. v. BURNS et al. ^[*]

No. 25958

Supreme Court of Mississippi

June 13, 1927

Division B

Suggestion of Error Overruled Sept. 19, 1927.

APPEAL from chancery court of Scott county.

HON. G C. TANN, Chancellor.

Suit by the Jackson & Eastern Railway Company against W. W. Burns and others for an injunction. From a judgment for defendants complainant appeals. Affirmed.

Judgment affirmed.

Neville & Stone, for appellant.

Flowers, Brown & Hester and J. R. Rowzee, for appellees.

OPINION

ETHRIDGE, J.

A drainage district was created under the provisions of chapter 195, Laws of 1912, as amended by subsequent acts of the legislature, lying partly within Scott county and partly within Leake county. A proceeding was filed to organize the district on the 30th day of January, 1923, and the district was finally organized in September, 1923, and the proceedings were conducted in accordance with the provisions of that chapter; notice being given as therein required as to the organization of the district, the assessment of benefits and damages, and the assessment roll, when same was returned by the drainage commissioners, in pursuance of the act. Under the act, this notice was published in newspapers in Scott and Leake counties.

The appellant operates a line of railroad through said district, but at the time of the initial proceedings had not constructed its line throughout the length of the district.

When the assessment of benefits was made, the deeds to the right of way of a portion of the district had not been obtained, although the line had been surveyed and subsequent to the creation of the district and the assessment of benefits, etc., the validation proceeding was issued under chapter 28, Laws of 1917 (chapter 85A, Hemingway's Supplement of 1921), and notice was published as required by that act, and the bonds issued were validated by decree of the court, from which no appeal was prosecuted.

In the present case, the appellant filed a bill for injunction to prevent collection of the taxes assessed against it, setting up that the proceedings were unconstitutional and void as a denial of due process of law; that it had no notice of said proceedings until demand was made upon it to pay the taxes. It also complained that the assessments made against it were unfair, partial, and arbitrary and unjust, that its right of way contained eighty-four acres of land, and that it was assessed with a benefit of one hundred thousand dollars, and that the taxes levied for the year amounted to one thousand five hundred dollars, being seven hundred fifty dollars from Scott county, and seven hundred fifty dollars from Leake county. It also contended that the proceedings were had before a chancellor in vacation and outside the counties in which the district lay; that notice of the meeting at which the benefits and damages would be assessed merely gave notice that a hearing would be held at Hickory, in Newton county, and gave no place in said town where the hearing would be held.

A preliminary injunction was issued, and appellees answered, setting up the validation proceedings in chancery under chapter 28, Laws of 1917 (chapter 85A, Hemingway's Supplement of 1921), and also denying that the proceedings under chapter 195, Laws of 1912, and amendments thereto, were a denial of due process of law, or illegal or irregular in any respect.

On motion to dissolve the injunction, evidence was taken as to the amount of reasonable attorneys' fee, and damages for the wrongful suing out of the injunction were awarded against the appellant and its bond.

The proceedings under chapter 195, Laws of 1912, and the amendments thereto, are judicial, and notice given in pursuance of the statute constitutes due process of law, and judgments rendered are valid and binding. Jones v. Belzoni Drainage Dist., 102 Miss. 796, 59 So. 921; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Wilkinson v. Gaines, 96 Miss. 688, 51 So. 718; Wooten v. Hickahala Drainage District, 116 Miss. 787, 77 So. 795; Board of Supervisors of Yazoo County v. Grable, 111 Miss. 893, 72 So. 777. The validation proceedings under chapter 28, Laws of 1917, are conclusive, and cannot be questioned after the bonds have been validated. Parker v. Board of Supervisors of Grenada County, 125 Miss. 617, 88 So. 172.

Where the jurisdictional facts appear from the record, judgments on the organization of the district are conclusive and res adjudicata. Borroum v. Purdy Road District, 131 Miss. 778, 95 So. 677; Liddell v. Noxapater et al., 129 Miss. 513, 92 So. 631; Dye v. Sardis, 119 Miss. 359, 80 So. 761; Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321; Wofford v. Williams, 110 Miss. 637, 70 So. 823; Hinton v. Perry County, 84 Miss. 536, 36 So. 565.

It is contended, however, that the court had no jurisdiction to create a district and make the assessments here involved because, under the act, it is not authorized to do so in vacation. We think a careful reading of the statute shows that the legislature intended to confer jurisdiction on the chancellor to act in vacation as fully and completely as in term time, in all matters concerning the organization and an assessment of benefits and damages, the...