Obion County v. Coulter

• Decision Date: 02 September 1924
• Docket Number: 1.
• Parties: OBION COUNTY FOR USE OF HOUSER CREEK DRAINAGE DIST., v. COULTER ET AL.
• Court: Tennessee Supreme Court

284 S.W. 372

153 Tenn. 469

OBION COUNTY FOR USE OF HOUSER CREEK DRAINAGE DIST., v. COULTER ET AL.

No. 1.

Supreme Court of Tennessee.

September 2, 1924

Appeal from Chancery Court, Obion County; V. H. Holmes, Chancellor.

Bill by Obion County, for the use of the Houser Creek Drainage District, against B. D. Coulter and others. Decree for complainant, and defendant Henry O. Head appeals. Affirmed and cause remanded.

H. O Head, of Sherman, Tex., for appellant.

C. N Lannom, H. H. Lannom, and F. J. Smith, all of Union City, and Hillsman Taylor, of Nashville, for appellee.

HALL J.

On September 17, 1919, a decree was entered by the county court of Obion county, Tenn., organizing Houser creek drainage district under chapter 185 of the Public Acts of 1909.

Defendant Henry O. Head (appellant here), who will hereinafter be referred to as defendant, owned 630 acres of land in one tract located within said district, which was assessed at 100 per cent., the tax amounting to $1,243.44 per annum, made payable in semiannual installments of $621.72 each on the 1st day of May and October.

All assessments against defendant's land having been paid except the October, 1922, assessment, and all of this assessment having been paid except $21.72 which amount defendant failed or refused to pay, the bill in this cause was filed by Obion county for the use of the drainage district on November 9, 1922, and is prosecuted to recover for the use of said drainage district said balance alleged to be due and unpaid on the October, 1922, assessment, and to recover other assessments due from landowners whose lands were included and assessed for taxes in said district, which had become delinquent.

The defendant answered the bill, challenging the validity of the assessment on the ground that the act under which the district was established and the tax levied is unconstitutional, and the assessment is therefore void and cannot be enforced.

The trial in the court below was had upon a written stipulation of facts entered into by the parties in lieu of proof. In this stipulation of facts it is agreed that all the requirements of the statute, with reference to the organization of the district, were complied with, and the only questions presented are the validity of the statutes under the Constitutions of the United States and this state, and whether the defendant is estopped to question its validity in this proceeding.

It was admitted that said defendant was made a party defendant to the proceeding had in the county court of Obion county to establish said district, and, being a nonresident of the state, was duly cited by publication as required by the act, but he at no time appeared either in person or by an attorney at any stage of the proceeding, or entered any defense to the establishment of said district.

It was further expressly agreed in the stipulation of facts that the only questions to be submitted to the court were those raised in the defendant's answer touching the validity of the statutes relied on to sustain the assessment levied against his land.

The written stipulation of facts contains this further statement:

"In this case the complainant assents and agrees to the above and foregoing stipulation and agreement, with the following reservations, to wit: The complainant reserves the right to insist that the defendant is precluded and estopped, in whole or in part, from attacking at this time the legality of the decrees and judgments complained of; that, as to the defendant, the judgments and decrees of the county court may not and cannot be set aside at this time in this proceeding, and the complainant reserves the right to have this question passed upon by the court in this case."

The stipulation was entered into by the complainant and the defendant on the 8th day of September, 1923, and is signed by counsel for complainant and the defendant Head.

Upon the hearing the chancellor sustained the bill and rendered a decree against the defendant for the amount of the unpaid balance on the October, 1922, assessment, interest, and attorney's fees, from which decree the defendant has appealed to this court and assigned errors.

The defendant in his answer challenges the constitutionality of the act and the validity of the assessment levied against his land upon the following grounds:

(1) That the act, as amended by section 5 of chapter 63 of the Public Acts of 1915, confided the question of whether the district should be established to the decision of the county judge of Obion county, who was interested in the event of the cause.

(2) That the statute expressly prohibits the landowner from showing that his land will in no wise be benefited by the improvement.

(3) That the act requires the landowner to file his claim for damages before he can know whether he is injured or his land damaged, and treats his failure to do so as a waiver of all claim to damages even for the value of the land actually taken in the establishment of said district.

(4) That the statute gives to the interested county judge the power to appoint commissioners to classify the lands included in said district and make the assessments without notice to the landowners, or the right on their part to participate in their selection.

(5) That the statute vests in the county judge, after the district has been established and he has become directly interested therein as a member of the board of directors created by section 18 of the act, the power to appoint commissioners to classify the lands, apportion the assessments, decide what lands are benefited and are to be assessed, and vests in the interested county judge the power and right to disregard the action of the commissioners in said matter, and himself finally determine them.

The answer averred that the vesting of all of these powers in the county judge, and the denial to the landowners whose lands have been included in said district the rights indicated above amounted to a taking of their property without due process of law, and denies them the equal protection of the law guaranteed to them by the Fourteenth Amendment of the Constitution of the United States and the due process clause of the Constitution of this state.

The assignments of error urged in this court by the defendant present substantially these questions, and we will now proceed to consider and dispose of them in the order stated.

With reference to the first question urged by the defendant, it is provided in section 18 of chapter 185 of the Acts of 1909 that, after a drainage or levee district has been located or established as provided for in the act, the county court shall appoint two directors for such district, said directors to be owners of lands, or interested in lands in such district, and at least one of those first appointed to be one of the petitioners for the establishment of said district, or his successor in estate or interest, said directors to hold their offices for two years from the date of their appointment, and these two thus appointed and their successors, together with the county judge or chairman of the county court, shall constitute the directors of such district, and as such directors they shall have the general control and management of the business affairs of such district and supervision of the same, and be vested with the power and authority to make contracts provided for in the act, for all improvements to be done in said district.

By section 5 of chapter 63 of the Acts of 1915 (the amendatory act), it is provided that each member of the board of directors shall receive as compensation for their services in attending to their duties as directors 50 cents per hour for the time actually consumed in attending to their duties as directors, but not to exceed 25 hours in any one month, and also their actual expenses.

It is insisted by the defendant that this provision of the amendatory act providing for compensation to the directors for their services as such includes the county judge, who is made a member of the board of directors by section 18 of the original act, and created in him an interest in the event of the cause which disqualified him under the Constitution of this state from presiding in said proceeding to establish said district, and prevented him from constituting an impartial tribunal guaranteed to the landowner by the Constitution.

It is provided in article 6, § 11, of the Constitution:

"No judge of the Supreme or inferior courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any inferior court, except by consent of all the parties."

In Shannon's Annotated Code, § 5706, it is provided:

"No judge or chancellor shall be competent, except by consent of all parties, to sit in the following cases: (1) Where he is interested in the event of any cause; (2) or connected with either party, by affinity or consanguinity, within the sixth degree, computing by the civil law; (3) or has been of counsel in the cause; (4) or has presided on the trial in an inferior court; (5) or, in criminal cases for felony, where the person upon whom, or upon whose property, the felony has been committed, is connected with him by affinity or consanguinity within the sixth degree, computing by the civil law."

If the defendant's contention were well grounded, the point could not now be made by him; he having failed to make objection to the disqualifications of the county judge in limine and at the hearing of the proceeding to establish the district. The incompetency or...