Oldham v. Lafayette County Board of Drainage Com'rs

• Decision Date: 26 November 1923
• Docket Number: 23601
• Citation: 133 Miss. 505,97 So. 885
• Parties: OLDHAM v. LAFAYETTE COUNTY BOARD OF DRAINAGE COM'RS
• Court: Mississippi Supreme Court

97 So. 885

133 Miss. 505

OLDHAM v. LAFAYETTE COUNTY BOARD OF DRAINAGE COM'RS

No. 23601

Supreme Court of Mississippi

November 26, 1923

Division B

(Division B.) January 1, 1920

1 MANDAMUS. Petition to require board of drainage district to pay certificates of indebtedness not demurrable for failure to allege existence of sufficient funds.

A petition for a writ of mandamus requiring a county board of drainage commissioners to pay certificates of indebtedness of a drainage district legally organized and in existence is not subject to demurrer because it fails to allege that the board has on hand sufficient funds to pay the certificates.

2 DRAINS. Duty to provide for discharge of indebtedness of existing district either by issuance of bonds or levying of assessments.

Under chapter 197, Laws of 1912 (section 4333 et seq. Hemingway's Code), it is the duty of the county board of drainage commissioners of an organized district to provide for the issuance of bonds or the levying of assessments to pay the indebtedness of the drainage district incurred in its organization and take care of current indebtedness of the district.

HON. T C. KIMBROUGH, Special Judge.

APPEAL from circuit court of Lafayette county, HON. T. C. KIMBROUGH, Special Judge.

Mandamus by L. E. Oldham against the Lafayette county board of drainage commissioners. Defendant's demurrer was sustained, and, from judgment for defendant, plaintiff appeals. Judgment reversed, and demurrer overruled, with leave to plead over.

Reversed; demurrer overruled.

Lester G. Fant, W. G. Boyett, James Stone and Oldham, Stone & Stone, for appellant.

The remedy sought by complainant cannot be denied because of the fact that two of the items of indebtedness sought to be collected were made by the Langston drainage district of Lafayette and Panola counties, and the Anderson drainage district of Lafayette and Marshall counties, respectively.

Section 48 of Chapter 197 of the Laws of 1912 provides: "In the event the lands of any drainage district organized as herein provided shall lie within two or more counties, the county board of drainage commissioners of all counties interested in which the lands shall lie, shall perform the duties herein required to be performed by the county board of drainage commissioners . . ."

Section 57 of this Act provides: "The provision of this Act applicable to organizing a drainage district, the lands of which shall lie in two or more counties, shall not apply to drainage districts containing less than ten thousand acres. In districts containing less than ten thousand acres that lie partly in two or more counties, the county board of drainage commissioners of the county having the largest number of acres shall do all things required by this Act to be done in the organization of said district, the same as if the district was wholly within their county."

The appellees, defendants below, cannot prevail because of any alleged lack of legal power to pay these certificates of indebtedness.

The requirements of a petition of mandamus, according to the decision of this court, are: 1. That the petition show a personal right on the part of the petitioner; 2. That it show a duty on the part of the defendant, by virtue of his public office, to perform the action demanded by the petition; 3. That the right of the petitioner is still unsatisfied, and that he has made demand upon the defendant to satisfy same; 4. That the petitioner has no other clear and adequate remedy; 5. That it show the nature of the relief sought; 6. That it be verified on oath.

With the exception of the point just argued above, there is no attack upon this petition except that the appellees, defendants below, have no power to do the thing which the petitioner seeks to require of them, that is to levy, assess and collect taxes to pay these certificates of indebtedness.

This question is now res adjudicata and cannot be raised by the appellees in this proceeding. The petition shows that this matter has been adjudicated by the chancery court of Lafayette county, the court which created this county board and these several drainage districts. This is alleged in the petition and admitted by the demurrer.

Chapter 197 of the Laws of 1912, gives this board express power to do the very act which the petitioner seeks to have them required to do. "The county board of drainage commissioners are authorized and empowered to employ attorneys, engineers and other necessary employees for the purpose of assisting them or the district drainage commissioners in the organization of any drainage district, and they are authorized and empowered to pay a reasonable compensation to such employees out of the funds of the district arising from the issuance of the certificates of indebtedness, sales of bonds, or otherwise." The defendants, appellees, herein, have implied power under the law to levy, assess and collect taxes to pay these certificates of indebtedness.

It is passing strange that drainage districts organized under chapter 197 of the Laws of 1912, should have such vast and numerous powers and should be able to place thousands of dollars of indebtedness upon its inhabitants, and to charge the whole topography of the country and still be unable to levy a little tax to pay off their just debts evidenced by their own certificates of indebtedness and adjudged to be due by a solemn and final decree in the court which makes the existence of such a powerful corporation possible.

It is interesting to see how similar statutes have been construed by the highest courts of the land. In Bates County, Missouri, v. Wills et al. (1917), 239 F. 785, at page 789, the court says: "The legal inference is that the grant of the power to make the contract also granted to it the power to levy, collect and pay over to the contractor the funds necessary to pay the agreed price of the labor and material the contractor furnished. "

In the case of the United States v. County of Clarke 1877), 96 U.S. 211, on page 215, the court says: "Limitations upon a special fund provided to aid in the payment of a debt are in no sense restrictions of the liabilities of the debtor."

In the case of United States v. New Orleans (1878), 98 U.S. 381, at page 393, the court says: "When authority to borrow money or incur an obligation in order to execute a public work is conferred upon a municipal corporation, the power to levy a tax for its payment, or the discharge of the obligation accompanies it; and this, too without any special mention that such power is granted."

In the case of Ralls County Court v. United States 1881), 105 U.S. 733, at page 735, the court says: "It must be considered as settled in this court, that when authority is granted by the legislative branch of the government to a municipality, or a subdivision of a state, to contract an ordinary debt by the issue of negotiable securities, the power to levy taxes sufficient to meet, at maturity, the obligation to be incurred, is conclusively implied."

As to the policy of this court in such matters, we call the attention of the court to the case of Jonestown v. Ganong (1910), 97 Miss. 67, 52 So. 579. In this case, one of the main objections to the issuance of the writ of mandamus asked was that the town was unable to pay the judgment recovered because the assessed valuation of all property to taxation was not more than sufficient, when taxed to the utmost allowed, by law, to meet the current expenses of the municipality. At page 87, this court, speaking through Chief Justice Mayes, said: "We cannot accede to the contention that a municipality may defeat a judgment by consuming all its revenues for general municipal purposes for current expenses. When the state incorporates municipalities, and gives them the extensive and important powers which are found in their charters, giving to them the right to make contracts and vesting in them important powers of government, the faith of the state is pledged to individuals dealing with them that the state will afford a remedy to compel payment of their just debts."

Chapter 216 of the Laws of 1922, applies only to the payment of indebtedness at the dissolution of drainage districts heretofore created, and provides how the same may be dissolved, and provides how the indebtedness of the dissolved district shall be paid, and we submit has no application whatever to the case at bar. The claim that the board of drainage commissioners have no authority to levy taxes, this court has held in the case of Kramer v. Standing Pine Drainage District, 117 Miss. 387, that the board of supervisors were bound by the act of the drainage commissioners, and that they have no discretion.

The petition did not ask that the board of drainage commissioners levy the tax, but that they have it levied, and under the law as interpreted by our supreme court in the case above cited, Kramer v. Standing Pine Drainage District, this board, and this board only, had the power to have this tax levied.

What can a person who has a just, due and owing debt do with a board of drainage commissioners in order to collect his debt? If he brings suit he could not get a more binding judgment than the decree in the present case, rendered by the chancellor on the 11th day of August, 1921.

The chancery court had exercised every act of judgment in regard to the debt; they found it was a debt that the drainage district owed; that it was a debt that should be paid by the board of drainage commissioners of Lafayette county, thereby adjudicating every single question that could be raised about the justness of the indebtedness; the right of the holder of the indebtedness to collect it; the ability and power of the board of drainage commissioners to pay it.

The case of...