State ex rel. Bigham v. Powers

• Decision Date: 20 May 1911
• Parties: STATE ex rel. BIGHAM et al. v. POWERS, County Judge, et al.
• Court: Tennessee Supreme Court

137 S.W. 1110

124 Tenn. 553

STATE ex rel. BIGHAM et al. v. POWERS, County Judge, et al.

Supreme Court of Tennessee.

May 20, 1911

Appeal from Chancery Court, Gibson County; Colin P. McKinney Chancellor.

Mandamus by the State, on the relation of Ed. Bigham and others against W. W. Powers, County Judge, and others. From an order overruling defendants' demurrer to the writ, they appeal. Affirmed.

Wade Nichols & Wade, for appellants.

Cooper & Clark and Deason, Elder & Holmes, for appellees.

GREEN J.

This is a mandamus suit, brought in the chancery court of Gibson county, to compel the county judge of that county to issue a warrant to pay for certain preliminary expenses incurred in connection with the proposed formation of a drainage district. This expenditure was authorized by the Gibson county quarterly court, under the authority of chapter 185 of the Acts of 1909.

The resolution appropriated $2,500 out of the general county fund for the purpose, and directed the county judge to draw warrants for said expenses, which he refused to do.

A demurrer was interposed by the county judge, which challenged the constitutionality of the legislative act under which the county court proceeded, and from a decree overruling his demurrer the county judge has appealed to this court.

As stated, the act assailed is chapter 185, Acts of 1909, known as the "Drainage Law." Owing to its length, the entire act cannot be set out in this opinion, but only such portions quoted as are necessary to explain the points urged against it.

The objections to the act are made by demurrer, and the several grounds of demurrer correspond with the assignments of error here, and will be considered in the order made.

The general purposes of the act are concisely stated in the caption, as follows:

"An act to provide for the establishment of levee and drainage districts, for the purpose of the draining and reclamation of the wet and swamp lands and lands subject to overflow in the state, and prescribing the method for so doing and providing for the assessment and collection of the costs and expenses of such improvements and the manner of obtaining the means or funds therefor."

It will be seen that the caption indicated an act to provide for the establishment of drainage districts, with directions as to the methods to be used, with a provision for assessing and collecting the costs and expenses of the work, and a further provision as to the "manner of obtaining the means or funds therefor."

The first ground of demurrer is that the act violates section 17, art. 2, of the Constitution, providing that "no bill shall become a law which embraces more than one subject, that subject to be embraced in the caption."

The appellant sets out under seven heads the different and distinct matters which he alleges are contained in the act, and which he argues are incongruous with the title and with each other.

The first three matters mentioned, which are said to be distinctive and without the scope of the title, are:

(1) "The body of the act provides a system of taxation, and not only this, but provides for a basis of taxation according to the benefits bestowed." See section 11 of said act.

(2) "Not only this, but the districts created under this act are to have the power of taxation without regard to the quarterly court." See section 11.

(3) "The power of taxation under this act is unlimited as to rate or the frequency of the levy." See section 11.

Section 11 of the act will be quoted and referred to later in the progress of this opinion, and it will then be seen that we do not agree that the act, under a proper construction, can be given the meaning that counsel ascribes to it in the three paragraphs just above quoted from his brief. Considering, however, that the act means what he says, as we may do for the purpose of disposing of the particular constitutional objection here made, still we are not able to perceive that three distinct subjects are here treated of, or that any of the matters mentioned are incongruous with the caption of the act or with each other.

If the act did provide for a basis of taxation, and did confer on the several districts the power of taxation, and did give such districts unlimited power as to rate or frequency, nevertheless it could be said of none of these matters that they were not fairly included within the clause of the title as to assessing and collecting and providing the costs and expenses and funds for the work.

It is next said that under the fourth heading this act provides for a drainage or levee district to be created within a drainage or levee district, and so on; and this is urged as a distinct and foreign matter to the title. The language of the caption is that the act is to provide for the establishment of "levee and drainage districts," and it is not improper that a provision such as the one criticised should be enacted under that part of the title quoted. In addition, it is also said in the caption that the act shall be one "prescribing the method" for establishing these districts, and it is entirely appropriate, under the last clause of the caption, to enact that one district may be established within another.

The fifth distinct matter supposed to be included in the act is that portion providing that "the owners of land which requires combined drainage may provide by mutual agreement for the establishment of drainage districts, with the power given to the other districts." What has been said in disposing of the fourth objection just above is applicable here. This part of the statute only undertakes to prescribe a method by which a drainage district may be established, to wit, "by mutual agreement"; and this is covered by the caption, and is entirely harmonious with the other portions of the act.

It is next said, under the sixth head, that, as appellant construes the act, it provides for the exercise of the right of eminent domain in the establishment of these districts. If this construction be conceded, it is, we think, germane to the title, and also to the other provisions of the act.

It is argued, under the seventh head, that the act provides that the county shall build a bridge, when necessary, over any drainage ditch. This provision is clearly included in that clause of the caption as to the methods to be used in establishing these districts.

So that, upon consideration of all the different matters alleged to be inharmonious and incongruously included in this act, we are of opinion that they are not subject to such criticism, but, on the contrary, they are all related to each other, and fall well within the general scope of the act as indicated by its title. The act does not violate section 17, art. 2, of the Constitution in any of the particulars urged by the appellant.

The second ground of demurrer is that the act violates section 29, art. 2, of the Constitution, providing that "the General Assembly shall have power to authorize the several counties and corporated towns in this state to impose taxes for county and corporation purposes, respectively, in such manner as may be prescribed by law; and all property shall be taxed according to value, upon the principle established in regard to state taxation."

The provision of the act which it is said violates the above clause of the Constitution is section 11 of the act, which provides for the assessment and apportionment of the costs and expenses of the work upon each piece of land, according to the benefits accruing to that land by reason of these public improvements.

Section 11 of the act is as follows:

"Section 11. Be it further enacted, that when the drainage or levee district, or other improvements herein provided for, shall have been located and established as provided for in this act, the county court shall appoint three commissioners, one of whom shall be a competent civil engineer, and two of whom shall be freeholders of the county, not living within the levee or drainage district, and not interested therein, or in a like question, nor related to any party whose land is affected thereby; and they shall, as soon as practicable after their appointment, and after being duly sworn to perform their duty faithfully and impartially to the best of their ability, inspect and classify all the lands benefited by the location and construction of such drainage or levee district in a graduated scale of benefits, naming the tract or tracts of each owner and so classifying the same, each tract to be numbered according to the benefit received, as below provided, by the proposed improvement; and they shall make an equitable apportionment and assessment of the costs, expenses, cost of construction, fees and damages assessed for the construction of any such improvement, and make report in writing thereof to the county court. In making said estimate and apportionment, the lands receiving the greatest benefit shall be marked on scale of one hundred, and those benefited in a less degree shall be marked with such percentage of one hundred as the benefit received bears in proportion thereto. This classification, when finally established, shall remain as a basis for all future assessments connected with the objects of said drainage or levee district, unless the county court, for good cause, shall authorize a revision thereof. In making such classification, said commissioners are authorized to divide the land of one owner lying in one body into more than one tract, and classify each subdivision thereof, if they are of opinion that portions of such entire tract will be more benefited than other portions, and especially when such entire tract is a large one, and that it will be more equitable and just to so classify it in subdivisions.

"In the

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