White v. Lake Cormorant Drainage Dist.

• Decision Date: 04 December 1922
• Docket Number: 22919
• Citation: 94 So. 235,130 Miss. 351
• Court: Mississippi Supreme Court
• Parties: WHITE et al. v. LAKE CORMORANT DRAINAGE DIST

94 So. 235

130 Miss. 351

WHITE et al. v. LAKE CORMORANT DRAINAGE DIST

No. 22919

Supreme Court of Mississippi

December 4, 1922

1 DRAINS. New assessment of benefits by drainage district authorized where lands assessed receive additional benefits.

Where a drainage district is organized under chapter 195, Laws 1912 as amended by chapter 269, Laws 1914 (Hemingway's Code sections 4434 to 4483, inclusive), and the funds realized from a sale of the bonds of said district prove to be insufficient to complete the improvement planned, which improvement had been begun and abandoned because of such insufficiency of funds, and it appears that by the completion of such improvement, the lands of the district will receive additional benefits to those found and assessed in the first assessment of benefits, then under section 7 of said statute (Hemingway's Code, section 4445) a new assessment of benefits is authorized for the purpose of completing said improvement.

2 DRAINS. Exclusion of lands in drainage district not benefited by second assessment within jurisdiction of court.

Where on the hearing of such new assessment of benefits, it is shown to the court that the lands of certain landowners in the district will not receive any additional benefits on account of such new assessment, and the decree of the court so finds, and releases such lands from such new assessment, and authorizes the withdrawal from the record in the case, the pleadings and proof touching said question, the other landowners of the district have no ground to complain at such decree, for the court had jurisdiction to render such decree, the proceeding being in rem on publication of notice as required by said statute, thereby giving all landowners in the district an opportunity to be present at the hearing and object to the action of the court complained of and have such pleadings and proof made a part of the record for the purposes of appeal.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of De Soto county, HON. E. N. THOMAS, Chancellor.

Proceeding to assess lands of the Lake Cormorant Drainage District. From a decree approving a second assessment, W. O. White and other landowners appeal. Affirmed.

Affirmed.

Burch, Minor & McKay, for appellant.

The whole case comes down to the question as to whether or not the statutory authority to make a re-assessment when "it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district" can justify a re-assessment for the purpose of completing the drainage project according to its original plans. For, in the face of the statute and of the decree, it seems idle to say that the decree was not final.

There is no secret about the facts that this reassessment is sought for the purpose of completing the district as originally planned. It is not sought for the purpose of maintaining or preserving improvements already made. To state the case in another way: The drainage commissioners have failed to complete the work of the district within the original estimates by fifty per cent. They are asking the right to make a re-assessment to the extent of fifty per cent of the old assessment, for the purpose of completing the work as originally planned. Surely, this cannot be said to present a case of absolute necessity for preserving and maintaining the improvements of the district.

Much of both briefs is devoted to the argument of inconvenience. We shall not dwell on that, for the court has plainly indicated in several cases heretofore that it will not undertake to supply defects in the legislation, but will leave that duty to the legislative department of the Government.

A mild and apologetic effort is made to support the action of the court below in relieving Mrs. Knight, the Richmond heirs and the Barbee estate from the additional assessment.

After all is said, we have a case where the assessment, as originally filed and advertised, must stand, unless the court upon pleadings and proof, sees fit to correct it. Here there is neither pleading nor proof to support the change in assessment. On the contrary, the protests against the assessment of these particular parties was by the court "dismissed" after all the evidence had been voluntarily withdrawn.

If the protests that were filed had merit and were supported by the evidence, what would any lawyer in Mississippi have done if the chancellor had thought the protests meritorious? He would have had the decree declared that the chancellor found the protests meritorious and sustained by the proof and also had the decree so adjudged, by all means leaving in the record both the protests and the evidence in order that the findings of the chancellor might have support.

In the present instance the protests were withdrawn and then dismissed by the court and all the evidence was withdrawn. This was done at the instigation and on the suggestion of the commissioners themselves and as a condition precedent to the change in the assessment.

It is not only a fair, but an unavoidable deduction, that the protests and the evidence contained matter which the commissioners were exceedingly anxious to suppress.

We respectfully submit that there is no warrant in the statute for this re-assessment. We submit further that the petition of the commissioners for the re-assessment has no inherent merit. Although the estimate was made at a time when prices were high and most of the work was done when prices were lower, the commissioners have not only consumed the amount of the original estimate, but the ten per cent additional (over fifty thousand dollars) fifteen thousand dollars derived as a premium on the sale of the bonds, and still need fifty per cent of the original assessment for the completion of the work. No amount of direct testimony can overcome the deduction that is unavoidable from these figures.

F. C. Holmes, for appellee.

Have the commissioners the right to make a new assessment roll of benefits in the state of case provided for by the statute? The objection urged to this is that the assessment roll heretofore approved stands as a final judgment. We recognize the rule that ordinarily a final judgment is final and cannot be set aside. In other words it is res adjudicata. Special attention is called to the language of the statute, specifying that the finding of the court shall have the force and effect of a judgment. In other words the statute undertakes to give to something that is not a judgment the force and effect of a judgment.

It is necessary to consider whether or not the determination of benefits is or is not a judicial adjudication. In other words we contend that it is a delegation of legislative power and not a judicial adjudication. We cite in support of this the case of Earle Rond Improvement District v. Johnson, appealed from the chancery court of Crittenden county, Arkansas, reported in Southwestern Reporter No. 224, page 965. This case affirmatively holds that the legislature may authorize an improvement district to reassess benefits. Pacific Railroad Company v. Izard County Highway Improvement District, 220 S.W. 452 (Arkansas.)

In the case of Missouri Pacific Railroad Company v. Izard County Highway Improvement District, above cited, the district was operating under a road law very similar to the drainage law under which we are now operating. The procedure for assessing benefits was very similar to section 4445 of Hemingway's Code. The language of that road law concluded with the same language of said section of said code to the effect that when the assessment roll had been approved, it should stand as a final assessment of benefits upon the lands of the district and should have all the force and effect of a judgment. The question before the court was whether or not it was a judicial proceeding and subject to be removed to the federal courts under section 28 of the Federal Judicial Code. In that case the court held that assessment for local improvements was not a judicial proceeding; that assessments for local improvements were not a tax; that assessments for local improvements were a legislative function, not judicial. Chicago M. & St. P. Railroad Co. v. Mosquito Drainage District (Iowa), decided December 14, 1920, 180 N.W. 170; State, by Revenue Collector v. Oliver Drainage District, 208 S.W. 112; Rosslet v. Green & Lawrence Drainage District, Ark. S.Ct. (1918), 207 S.W. 218.

From a consideration of the foregoing authorities, and the principles therein announced, we are irresistibly forced to the conclusion that this whole procedure is legislative and not judicial, except as made so by legislative enactment. Box v. Straight Bayou Drainage District, 121 Miss. 850.

In the case last above cited the sole question was as to the jurisdiction of Yazoo county chancery court to retain the drainage district cause when no lands were in that county. The court held that for that purpose only, and only in the broad sense of the word was it a pending suit. In our view, the drainage cause is not one suit, but is a succession of transactions legislative or administrative in their nature. We accept the legislative intendment. The decree of the chancellor establishing the district was a final judgment, not appealed from, and is a finality. Yet the statute provides for increasing the territory of the district.

The decree of the chancellor approving the plans and specifications for the district was a final judgment, not appealed from, and is a finality, yet the statute provides for altering the plans. The decree of the chancellor approving and confirming the assessment roll of benefits was a final judgment not appealed from, and is a finality. Yet the statute by necessary implication authorizes the making of a new...