Memphis & C. Ry. Co. v. Bullen

• Decision Date: 22 December 1928
• Docket Number: 27496
• Citation: 154 Miss. 536,121 So. 826
• Parties: MEMPHIS & C. RY. CO. v. BULLEN, SHERIFF AND TAX COLLECTOR, et al
• Court: Mississippi Supreme Court

121 So. 826

154 Miss. 536

MEMPHIS & C. RY. CO. v. BULLEN, SHERIFF AND TAX COLLECTOR, et al

No. 27496

Supreme Court of Mississippi

December 22, 1928

Division B

En Banc, April 15, 1929.

1 HIGHWAYS. Curative act held to have validated road district bonds, without regard to constitutionality of law under which they were issued (Laws 1926, chapter 278; Laws 1920, chapter 277; Constitution, United States Amend. 14).

Laws 1926, chapter 278, validating all road districts theretofore organized, and providing that bonds issued for such district should be legal, held to validate bonds issued by road district organized under Laws 1920 chapter 277, without regard to whether law, under which district was organized, violated the due process clause of the Fourteenth Amendment to Federal Constitution, in that legislative authority to select and lay out local improvement districts was properly conferred on boards of supervisors by curative act.

2. CONSTITUTIONAL LAW. Legislature may validate bonds issued by political subdivision which it could have previously authorized. Legislature has the power to validate bonds issued by any political subdivision of state which it could have previously constitutionally authorized.

EN BANC.

3. CONSTITUTIONAL LAW. Law authorizing county supervisors to submit proposal to issue bonds for road district on petition of electors held not denial of due process (Laws 1920 chapter 277; Constitution United States, Amendment 14; Constitution, Mississippi 1890, section 170).

Laws 1920, chapter 277, authorizing county supervisors to order election on proposal to issue bonds for road district on petition of electors, held not denial of due process, in violation of Constitution, United States Amendment 14, when construed in light of Constitution, Mississippi 1890, section 170, vesting in the board of supervisors the legislative discretion to organize or refuse to organize according to their judgment the road district petitioned for and with discretion of deciding whether benefits to be derived from proposed district would be justified by necessary tax burdens.

4 STATUTES. Law validating organization of road district and issuance of bonds did not violate constitutional provision relating to local or special legislation (Priv. & Loc. Laws 1926, chapter 1080; Laws 1920, chapter 277; Constitution 1890, section 90, par.

i (l).

Priv. & Loc. Laws 1926, chapter 1080, validating organization of road district and issuance of bonds under Laws 1920, chapter 277, held not in violation of Constitution 1890, section 90, par. (l), prohibiting local or special legislation on the subject of laying out, opening, or altering public highways.

5. CONSTITUTIONAL LAW. Law authorizing county supervisors to order bond election for road district did not violate equal protection

clause as unreasonably discriminatory (Laws 1920, chapter 277; Constitution United States, Amendment 14).

Laws 1920, chapter 277, authorizing county supervisors to order election submitting proposal to issue bonds for road district on petition of electors, held not in violation of equal protection clause of the Fourteenth Amendment to the Federal Constitution as unreasonably discriminatory per se, on ground that the burden of taxation was not spread on the district in proportion to benefits.

6. HIGHWAYS. Failure to have proof of publication of notice of bond election for road district on file was cured by validating acts (Laws 1920, chapter 277; Laws 1926, chapter 278; Priv. & Loc. Laws 1926, chapter 1080).

Failure of board of supervisors to have proof of publication of notice of bond election under Laws 1920, chapter 277, on file and spread on its minutes was cured by both Laws 1926, chapter 278, and Priv. & Loc. Laws 1926, chapter 1080, validating organization of district and issuance of bonds therefor.

SMITH, C. J., dissenting.

APPEAL from chancery court of Tishomingo county, HON. ALLEN COX, Chancellor.

Suit by the Memphis & Charleston Railway Company against Omer J. Bullen, sheriff and tax collector, and others. Decree of dismissal, and complainant appeals. Affirmed.

Affirmed.

S. R. Prince and John B. Hyde, both of Washington, D. C., and Ely B. Mitchell, of Corinth, for appellant.

There is no distinction under the Fourteenth Amendment between so-called "ad valorem" districts and so-called "betterment" districts.

Browning v. Hooper, 269 U.S. 396, 70 L.Ed. 330; St. Louis & S.W. Ry. Co. v. Nattin, 48 S.Ct. 438.

Even if Chapter 277, Laws of 1920, is in all respects regular and constitutional and the Oldham road district has been duly and validly organized thereunder, still the assessment cannot stand since it violates the Fourteenth Amendment of the Constitution of the United States.

Spencer v. Merchant, 125 U.S. 345, 355-357, 31 L.Ed. 763, 767, 768, 8 S.Ct. 921; French v. Barber Asphalt Paving Co., 181 U.S. 324, 338, et seq., 45 L.Ed. 879, 887, 21 S.Ct. 625; Houck v. Little River Drainage Dist., 239 U.S. 254, 262, 265, 60 L.Ed. 266, 273, 274, 36 S.Ct. 58; Myles Salt Co. v. Iberia & St. M. Drainage Dist., 239 U.S. 478, 481, 60 L.Ed. 392, 394, L. R. A. 1918E, 190, 36 S.Ct. 204; Branson v. Bush, 251 U.S. 182, 189, 64 L.Ed. 215, 220, 40 S.Ct. 113; Valley Farms Co. v. Westchester County, 261 U.S. 155, 163, 67 L.Ed. 585, 590, 43 S.Ct. 261; Kansas City S. R. Co. v. Road Improv. Dist. No. 3, 266 U.S. 379, 69 L.Ed. 335; Kansas City S. R. Co. v. Road Improv. Dist., 256 U.S. 658, 65 L.Ed. 1151, 41 S.Ct. 604; Thomas v. Kansas City Southern R. Co., 261 U.S. 481, 67 L.Ed. 758, 43 S.Ct. 440; Road Improvement District No. 1 v. Missouri Pacific R. Co., 274 U.S. 188, 71 L.Ed. 992; Thomas v. Kansas City Southern R. Co., 261 U.S. 481, 67 L.Ed. 758; In re Chicago, R. I. & P. Ry. Co., 28 F.2d 56.

Magruder, Walker & Magruder, of Starkville, J. A. Cunningham, of Booneville, for appellees.

The principle is universal that constitutional and statutory debt limits are not applicable to indebtedness secured by special assessments upon ascertained benefits to land. Such limitations apply only to ad valorem indebtedness.

Dillon on Municipal Corporations (5 Ed.), sec. 192.

Where the board of supervisors adjudicated the fact that the law had been complied with, and that ten days' notice had been given, as required by law, it was not necessary for it to set out in its orders how the notices were published.

Alvis v. Hicks, 116 So. 612.

The legislature has the power to validate bonds issued by any political subdivision of the state which it could previously have constitutionally authorized.

Charlotte Harbor & Northern Ry. Co. v. Welles, 260 U.S. 8, 43 S.Ct. 3, 67 L.Ed. 100; Tom Green County v. Moody (Tex. Sup.), 289 S.W. 381; Nolan County v. State, 83 Tex. 182, 17 S.W. 823.

Chapter 277 of the Laws of Mississippi 1920, is not unconstitutional as violating the Fourteenth Amendment of the Federal Constitution.

Gulf & Ship Island R. R. Co. v. Ducksworth, Sheriff & Tax Collector, 280 F. 733; Prather v. Googe, 108 Miss. 671, 67 So. 156; Brown v. New Jersey, 175 U.S. 172; Anderson County Road District et al. v. Pollard, Attorney-General, 296 S.W. 1062; Tom Green County v. Moody (Tex. Sup.), 289 S.W. 381; Dunn v. Fort Bend County et al., 17 F. 329; St. Louis & Southwestern Railway Co. v. E. H. Nattin, Tax Collector, et al. (U. S. Rep.), 72 Law Ed. 541.

Priv. & Loc. Laws 1926, Chapter 1080, validating the organization of road district and issuance of bonds under Laws 1920, chapter 277, is not violative of Constitution 1890, sec. 90, par. l, prohibiting local or special legislation on the subject of laying out, opening or altering public highways.

Toombs v. Sharkey, 140 Miss. 676; Robertson v. Leflore County, 112 Miss. 54; Oregon Short Line Railroad Co. v. Clark County Highway District, 22 F. Rep. 681; Gas Realty Co. v. Schneider Granite Co., 60 L.Ed. 523; Road Improvement Dist. No. 1 v. Missouri Pacific Railroad Co., 47 S.Ct. 563; Wright v. Police Jury of Parish of Avoyelles, Louisiana, et al., 264 F. 705.

Benjamin H. Charles, of St. Louis, Mo., for appellees.

A road district act such as chapter 277 of 1920 is constitutional; and the legislature was authorized to confer the discretion of organizing or not organizing the district to boards of supervisors alone.

Prather v. Googe, 108 Miss. 670, 67 So. 156, 159.

As the legislature of Mississippi had the authority in the exercise of the sovereign power of the state, to create the Oldham road district by a special act, it had the same power, subsequently, to validate the creation of the district by a special act, viz., Chapter 1080 of 1926.

Anderson County Road District No. 8 v. Pollard, 296 S.W. 1062; Charlotte Harbor & Northern Ry. Co. v. Welles, 260 U.S. 8, 67 L.Ed. 100; Kansas City Southern Ry. Co. v. Road Improvement District No. 3, 266 U.S. 379, 69 L.Ed. 335; Anderson v. Santa Anna, 116 U.S. 356, 29 L.Ed. 633; Bowles v. Brimfield, 120 U.S. 762, 30 L.Ed. 786.

The legislature of Mississippi had the authority, under the Constitution, to validate the proceedings for the organization of this district by general act; and this was done by chapter 278 of 1926, chapter 280 of 1926, chapter 285 of 1926 and House Bill No. 517 of 1928.

Mobile & Ohio R. R. Co. v. Trapp, 119 Miss. 170, 80 So. 553, 554; Griffith v. Mayor et al. of Vicksburg, 102 Miss. 1, 58 So. 781.

The legislature could have enacted a general statute making provision for the validation of proceedings for the organization of a road district or the issuance of its bonds, as has been done by chapter 28 of 1917, as amended by chapter 252 of 1922 and House Bill 466 of 1928.

Bacot v. Hinds County, 124 Miss. 231, 86 So. 765; Parker v Grenada County, 125 Miss. 617, 88 So. 172; Jackson & E. R. R. v. Burns, 113 So. 908; Von Zondt v. Town of...