State v. Board of Levee Com'Rs for Yazoo

• Citation: 932 So.2d 12
• Decision Date: 15 June 2006
• Docket Number: No. 2005-SA-00104-SCT.,2005-SA-00104-SCT.
• Parties: STATE of Mississippi and J.K. Stringer, Jr., in his Official Capacity as State Fiscal Officer, and Jim Hood, Attorney General of the State of Mississippi, ex rel. The State of Mississippi v. The BOARD OF LEVEE COMMISSIONERS FOR the YAZOO-MISSISSIPPI DELTA.
• Court: United States State Supreme Court of Mississippi

932 So.2d 12

STATE of Mississippi and J.K. Stringer, Jr., in his Official Capacity as State Fiscal Officer, and Jim Hood, Attorney General of the State of Mississippi, ex rel. The State of Mississippi v. The BOARD OF LEVEE COMMISSIONERS FOR the YAZOO-MISSISSIPPI DELTA.

No. 2005-SA-00104-SCT.

Supreme Court of Mississippi.

June 15, 2006.

COPYRIGHT MATERIAL OMITTED

Meredith McCollum Aldridge, Harold Edward Pizzetta, III, attorneys for appellants.

William F. Goodman, Jr., John G. Corlew, George R. Fair, Jackson, John P. Henson, Greenwood, Richard G. Noble, Frank Owen Crosthwait, Jr., Indianola, attorneys for appellee.

Before COBB, P.J., DICKINSON and RANDOLPH, JJ.

RANDOLPH, Justice, for the Court.

¶ 1. Section 7(4) of House Bill 1279 (2004) reads:

During the period beginning upon July 1, 2004, and through June 30, 2005, the Board of Levee Commissioners of the Yazoo-Mississippi Delta Levee District, upon demand of the State Fiscal Officer, shall transfer to the State Treasurer a sum or sums not exceeding a total of Five Million Dollars ($5,000,000), which shall be deposited into the Budget Contingency Fund.

On July 1, 2004, J.K. Stringer, Jr., the State Fiscal Officer, made demand upon the Board of Levee Commissioners of the Yazoo-Mississippi Delta Levee District ("Board") for $5,000,000.00 pursuant to Section 7(4). Thereafter, the Board filed suit in the Coahoma County Chancery Court. In seeking a declaration that the legislation was unconstitutional and an injunction preventing its enforcement, the Board averred that: (1) Section 7(4) was unconstitutional because it had not been properly publicized or referred to committee as required by Article 11, Section 234 of the Mississippi Constitution; (2) the Legislature did not have the authority to require the transfer of Board funds and, therefore, Section 7(4) violated Article 11, Section 227 et seq. of the Mississippi Constitution; (3) the legislation violated the separation of powers doctrine in Article 1, Sections 1 and 2 of the Mississippi Constitution by "infring[ing] and encroach[ing] upon the constitutionally invested powers of the Levee Board"; and (4) the legislation violated Article 3, Section 17 of the Mississippi Constitution and the 14th Amendment of the United States Constitution by directing the taking of Board property without due compensation or due process.

¶ 2. The learned chancellor agreed with the Board and granted summary judgment in their favor, declaring Section 7(4) of House Bill 1279 unconstitutional and enjoined the State from enforcing the legislation. From that final judgment, the State appeals.

FACTS

¶ 3. Under Article 11 of the Mississippi Constitution of 1890, "maintenance of a levee system in the State was made mandatory." Yazoo & M.V.R. Co. v. Board of Mississippi Levee Com'rs, 188 Miss. 889, 195 So. 704, 705 (1940). Therefrom, two levee districts were created by the state legislature: the Mississippi Levee District and the Yazoo-Mississippi Delta Levee District. See id. "The Yazoo-Mississippi Delta levee district comprises all of the northern counties of the state which are subject to overflow from the Mississippi river." Ham v. Board of Levee Com'rs for Yazoo-Mississippi Delta, 83 Miss. 534, 35 So. 943 (1904). The Levee Board of the Yazoo-Mississippi Delta Levee District itself "was originally created by chapter 168, Laws of 1884, and was recognized and continued by section 227 et seq. of the state Constitution." Clark v. Miller, 142 Miss. 123, 105 So. 502, 505 (1925). Article 11, Section 232 of the Constitution of 1890 specifically provides that, "[t]he commissioners of said levee district shall have supervision of the erection, repair, and maintenance of the levees in their respective districts ...." Miss. Const. art. 11, Section 232 (emphasis added). Article 11, Section 237 states, "[t]he legislature shall have full power to provide such system of taxation for said levee districts as it shall, from time to time, deem wise and proper." Miss. Const. art. 11, Section 237 (emphasis added). Article 11, Section 234 mandates that:

[n]o bill changing the boundaries of the district, or affecting the taxation or revenue of the Yazoo-Mississippi Delta Levee District ... shall be considered by the legislature unless said bill shall have been published in some newspaper in the county in which is situated the domicile of the board of levee commissioners of the levee district to be affected thereby, for four weeks prior to the introduction thereof into the legislature; and no such bill shall be considered for final passage by either the senate or house of representatives, unless the same shall have been referred to, and reported on, by an appropriate committee of each house in which the same may be pending; and no such committee shall consider or report on any such bill unless publication thereof shall have been made as aforesaid.

Miss. Const. art. 11, Section 234 (emphasis added).

¶ 4. House Bill 1279 was initially introduced on February 23, 2004 and thereafter referred to the Select Committee on Fiscal Stability of the House of Representatives ("Select Committee"). On February 27, 2004, it was transmitted to the Senate where it was referred to the Appropriations Committee. Section 7(4) did not appear in the bill initially referred to either the Select Committee of the House of Representatives or the Appropriations Committee of the Senate. Instead, Section 7(4) first appeared in the Conference Report negotiated by a six (6) member Conference Committee of the House of Representatives and Senate which was filed and adopted on May 9, 2004. On May 14, 2004, the state legislature signed and enrolled House Bill 1279, which was thereafter signed by the Governor, to become effective on July 1, 2004.¹

¶ 5. On June 24, 2004, the Board ("Appellees") filed a Complaint in chancery court against the State of Mississippi and J.K. Stringer, Jr. as the State Fiscal Officer, ("Appellants") seeking a judgment declaring Section 7(4) unconstitutional and enjoining the State from confiscating any revenue from the Yazoo-Mississippi Delta Levee District. Substantively, the Board alleged that Section 7(4) violated: (a) Article 11, Section 234 of the Mississippi Constitution (failure to publish Section 7(4) in some newspaper in the county in which is situated the domicile of the Board, i.e. Coahoma County, for four (4) weeks prior to its introduction in the Legislature; failure, upon information and belief, to have Section 7(4) referred to, or reported on by, an appropriate committee of either the House of Representatives or the Senate); (b) Article 11, Section 227, et seq. and Article 1, Section 2 of the Mississippi Constitution (Section 7(4) infringes and encroaches upon the constitutionally invested powers of the Board by delegating to the State Fiscal Officer the power to confiscate funds under the Board's exclusive control; also, Section 7(4) improperly authorizes the use of Board funds for non-levee purposes); and (c) Article 3, Section 17 of the Mississippi Constitution and the Fourteenth Amendment of the United States Constitution (Section 7(4) directs the taking of Board property without due compensation or due process).

¶ 6. On July 1, 2004, pursuant to Section 7(4), the State Fiscal Officer made demand upon the Board for $5,000,000.00. On July 30, 2004, the State answered the Complaint, denying the Board's allegations and affirmatively asserting that, "[the Board] cannot overcome the strong presumption of validity of Section 7(4) of House Bill 1279. See, e.g., Edwards v. State, 800 So.2d 454, 460-61 (Miss.2001)." The Attorney General filed a Motion to Intervene,² which was granted on August 9, 2004.

¶ 7. On September 9, 2004, the Board filed a Motion for Summary Judgment. The motion repeated the substantive allegations of the Complaint and was based in part upon affidavits of Sykes Sturdivant and Steve Stewart. Sturdivant, the President of the Levee Board for the Yazoo-Mississippi Delta Levee District since January 1997, stated that the Board was funded by revenues generated from properties within the Levee District and had never, to his knowledge, received funds from the State. He further submitted that the funds available to satisfy Section 7(4) were revenues generated from properties within the Levee District and were held as reserves for levee emergencies pursuant to the long-range plans adopted by the Board. As such, he opined that if required to comply with Section 7(4), the Board might be forced to tax lands within the Levee District which were not being taxed at the time. Steve Stewart was the editor and publisher of the Clarksdale Press Register, the only newspaper published or located in Coahoma County. He stated that, "[n]either Section 7(4), nor House Bill 1279, in its entirety, has ever been published in the Clarksdale Press Register."

¶ 8. On October 29, 2004, the State filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. Regarding Article 11, Section 234, the State asserted:

to the extent it is relevant, Section 234 contains an explicit recognition of the Legislature's authority to enact bills affecting and controlling the revenue of levee boards. Furthermore, the Levee Board's contention that Section 7(4) should be struck down because of the Legislature's alleged noncompliance with Section 234's procedural requirements presents a non-justiciable question.

As to Article 11, Section 227, et seq., the State contended:

[t]he Legislature has inherent authority over public funding matters, limited only by express prohibition. The Legislature is endowed with and [has] previously utilized its express authority and control over the Levee Board by virtue of constitutional and statutory provisions. Because there is no prohibition on the Legislature's inherent authority to enact Section 7(4), and because the Legislature has express control over the public funds of the Levee...