Simmons v. Hopson's Bayou Drainage Dist.

• Decision Date: 20 November 1916
• Docket Number: 19096
• Citation: 72 So. 901,112 Miss. 200
• Parties: SIMMONS v. HOPSON'S BAYOU DRAINAGE DISTRICT
• Court: Mississippi Supreme Court

72 So. 901

112 Miss. 200

SIMMONS v. HOPSON'S BAYOU DRAINAGE DISTRICT

No. 19096

Supreme Court of Mississippi

November 20, 1916

APPEAL from the chancery court of Coahoma county, HON. JOE MAY Chancellor.

Petition by Hopson Bayou drainage district for the confirmation of their assessment upon lands of the district. From a decree approving and confirming the acts of the commissioners, A. J Simmons appeals.

The facts are fully stated in the opinion of the court.

Decree affirmed.

D. W Cutrer, for appellant.

This appellant insists that the notice of this hearing by the publication of notice for fifteen days is not sufficient to put him on notice. It is, after all, a question of reasonableness, and two publications in a newspaper for two consecutive weeks is not sufficient to apprise the landowners that their assessments will be increased, and an added burden of taxation placed upon them.

The record shows that appellant's assessments of benefits have been practically doubled. While the total of bonds issued against the assessments of benefits are less than the amount of these benefits, still an opportunity of oppressive taxation is placed in the hands of the county drainage commission. At the pleasure of the commission, tax assessments for drainage purposes, may be increased to the point where they amount to confiscation.

The chancellor had no jurisdiction at this hearing. He set the hearing at Sumner, in Tallahatchie county, Mississippi instead of in Coahoma county, where this district lies. There is no authority of law for setting such a hearing in another county. In effect, this hearing is a suit and appellant is entitled to be heard in the county of his residence. Code section 707; Adams v. Kyzer, 61 Miss. 407.

We call attention to the fact that the first set of commissioners made an assessment roll of this district; that the present commissioners alleged that there were mistakes and misdescriptions in the old roll, and they prepared a new one correcting the said mistakes and misdescriptions. How can they now come into court and say that the first set of Commissioners confused, "Amount of Benefits" with "Estimated Cost of Work," and find that the actual benefits to the lands of the Hopson's Bayou Drainage District through the construction of these drainage canals was much greater than as shown by these two assessment rolls? Why did not these Commissioners ascertain that fact when in 1912, they made the corrected roll?

It is respectfully submitted that these commissioners are now estopped from alleging that the assessment of benefits on appellant's lands should now be increased, even in the face of the chancellor's ruling on the question of fact. To do so is to impeach their own classification. People v. Green, 90 N.E. 248, 242 Ill. 455.

The action of the commissioners in using the funds on hand to repair the damaged main canal was clearly illegal. Commissioners cannot undertake work in excess of the assessments of benefits on the lands of the district. Badger v. Drainage District, 31 N.E. 170. We respectfully submit that the ruling of the chancellor should be reversed.

Chas W. Clark, for appellee.

Appellant contends that the notice of this hearing, by publication for two successive weeks in a local newspaper was, as to him, insufficient notice. He states that this is a question of reasonableness, and he impliedly argues that this court should hold that such notice is insufficient to give the chancellor jurisdiction.

It is difficult to understand what this contention is based on. The first publication of notice was made on April 13th, the second on April 20th, and the hearing was had on the 28th. Applying the rule laid down by section 1606 of the Code, excluding the 13th and including the 28th, we have fifteen full days. This fills the statutory requirement to the very letter. (Laws 1912, chapter 196, section 1700, page 228.)

If appellant means that fifteen days is not sufficient time, the short answer is, that it is the time fixed by the legislature.

It is argued by appellant that his assessment of benefits have been practically doubled, and that this law places an instrument of excessive taxation in the hands of drainage commissioners, and that they may use it to oppress him.

But the actions of the commissioners must be confirmed by the chancellor after a hearing, and even the actions of the chancellor after a hearing, are subject to review by this court. Thus the appellant's constitutional rights are pretty well safe-guarded.

The allegation that the chancellor had no jurisdiction, because he set this hearing before himself at Sumner, Tallahatchie county, Mississippi, instead of in Coahoma county, is unsound.

To begin with, the hearing was in vacation, and it is well settled in this state, that where the chancellor has power to do any act "in vacation," that means anywhere in his court district that the chancellor may designate. Surely, if habeas corpus proceedings may be held by the chancellor anywhere in his district, matters in rem can be.

If it be argued that the "spirit" of this law be, that drainage hearings should be held in the county where the district is situate, it is a sufficient answer to state that the legislature did not say so. If the chancellor, who is generally pretty closely in touch with drainage districts, had any reason to apprehend contests, he would set the hearing in the county where the land is situate. If any landowner should telephone to the chancellor that there would be a contest and that numerous objectors desired to be heard, it is only reasonable to suppose that the chancellor would be glad to enter his order, re-setting the hearing at the court house of the county where the district lies, or at any place in the court district which would be most convenient to the objectors.

Section 707 of the Code has no application, for this is not a "suit." Even if it were, some landowner might contend that the "suit" was properly brought in Tallahatchie county, because he himself lived there.

Appellant raises the point that when the present drainage commissioners went on the lands of this drainage district, on October 4, 1912, and made a revised and corrected assessment roll, correcting the faulty descriptions of the first roll made by the old commissioners, that no other or further rolls could be made; and that these present commissioners were now estopped to say that the old commissioners had made the mistake of supposing that "amount of benefits" meant, not the actual benefits to be derived from installing a drainage system, but the estimated cost of the work.

Here appellant completely misunderstands the purpose of the present drainage commissioners in making the corrected roll of date ...