Witty v. Ellsberry Drainage Dist.

• Decision Date: 11 July 1921
• Docket Number: 21950
• Court: Mississippi Supreme Court
• Parties: WITTY v. ELLSBERRY DRAINAGE DISTRICT

89 So. 268

126 Miss. 645

WITTY v. ELLSBERRY DRAINAGE DISTRICT

No. 21950

Supreme Court of Mississippi

July 11, 1921

1 STATUTES. Drainage Act held not a local, private, or special law relating to water courses.

Chapter 39, Code of 1906, when the drainage district involved in this case was organized, in 1907, was a local law, because section 1727 of said chapter 39 expressly excepted certain counties from the operation of said chapter; but since the amendments thereto by chapter 196, Laws of 1912 (sections 4264 to 4332 inclusive, Hemingway's Code), and especially section 12 Laws of 1912 (section 4320, Hemingway's Code), which expressly repeals said section 1727, chapter 39, Code of 1906, it is a general law applying to the entire state as well as to all drainage districts organized under said act, whether organized prior or subsequent to the amendments thereto; therefore said act is not violative of paragraph (q), section 0, of the Constitution of Mississippi, prohibiting local, private, or special laws relating to water, although such act deals with natural water courses.

2 DRAINS. District bonds held not invalid because not authorized by majority of electors; "municipality;" "taxing district."

The fact that the bonds, the issuance of which was provided for by the drairage commissioners, and their action in that respect ratified by the chancery court as provided for by the said act, were not previously authorized by a majority of the qualified electors of such drainage district, does not render them invalid under section 2, chapter 209, Laws of 1918, which provides, "That no interest bearing debt, except as provided in section 1 of this act shall be incurred in any county, municipality or other taxing district, unless authorized by a majority of the electors who shall vote in an election called for that purpose," because a drainage district is not a municipality nor a taxing district in the meaning of said act, as held in Huston v. Mayo, 120 Miss. 523, 82 So. 334.

HON. G. E. WILLIAMS, Chancellor.

APPEAL from chancery court Leflore county, HON. G. E. WILLIAMS, Chancellor.

Petition by the Ellsberry Drainage District to ratify a reapportionment of benefits. Decree of ratification and F. M. Witty appeals. Affirmed and remanded.

Affirmed and remanded.

F. M. Witty, for appellant.

In my brief heretofore filed, I have stated without more, that in my opinion, the plan of the drainage commissioners is not in accord with section 1683, Mississippi Code of 1906, as amended section 4264, Hemingway's Code.

The above section as originally enacted was as follows: "Drainage districts may hereafter be organized in this state for the purpose of reclaiming wet, swamp and overflowed land for agriculture and sanitary purposes, in the manner following." Section 1683, Mississippi Code of 1906.

Then follows the statutory scheme, and finally it is provided by section 1712: "The commissioners may, after the organization of said district, do any and all acts that may be necessary in and about the surveying, laying out, constructing and repairing, altering, enlarging, cleaning, protecting and maintaining any drain or ditch or other work for which they have been appointed; and they and their successors shall have charge of said ditch in perpetuity, and shall annually see that the same is cleaned out, and all obstructions, brush, willow or other growth removed therefrom, to the end that such ditches shall be kept thoroughly cleaned and in good repair so as to perfectly drain said lands, and they may make additional assessments from time to time as necessity may require, to pay for the expense of maintaining, cleaning out and keeping in repair the ditches of said district." Section 1712, Mississippi, Code of 1906.

This court has held that where the statute under which two drainage districts were organized, confers no authority upon the commissioners to deal with natural water courses, but are designed solely for the purpose of creating artificial channels for the drainage of wet, swamp and overflowed lands, the drainage commissioners of one district have no authority to contribute to the expense incurred by another district in cleaning, straightening and deepening a natural water course which constitutes the outlet for the waters of the two drainage districts. Ex parte Drainage Commissioners, 100 Miss. 821, 52 So. 223; Haley v. Drainage Commissioners of Leflore County, 55 So. 253, 99 Miss. 556.

It has also been held by this court as follows: "Laws 1910, chapter 183, creates a special drainage district to provide effectual drainage by artificial drains or other drainage facilities, and provides for a commission to develop a drainage system by artificial canals and by improving all natural drains. Held that the words "natural drains" as so used, meant a natural water course, including creeks, streams, brooks or rivers, and that the act was therefore in violation of constitution section 90, paragraph "Q" prohibiting the legislature from passing special laws relating to water courses." Belzoni Drainage Commissioners v. Wynne, 53 So. 778, 98 Miss. 359.

The record in the present case shows that "it is the purpose of the drainage commissioner not only to alter, deepen, improve, repair and enlarge, said drainage ditches, but also to alter, deepen and improve the drainage through Turkey Bayou, Hottullem Brake to Quiver River, for the purpose of carrying out the plan of said drainage district."

This plan was approved by the commissioners and is approved by the chancellor in the decree appealed from. The point that I mean to make, is that it is proposed here to drain these natural bayous, to-wit Turkey Bayou and Hottellum Brake, and that the drainage commissioners are lacking in authority, certainly under the code section above quoted, from Mississippi Code of 1906.

I am aware that this section has been amended as is now set out in section 4264, Hemingway's Code, but I submit that this provision for drainage of natural water courses, as this section seems to do, and to provide power "to alter, deepen and improve any and all natural drains and water courses as this section seems to do, and to provide power to alter, deepen and improve any and all natural drains and water courses as may be necessary," to alter, deepen or improve, is in violation of section 90, paragraph "Q" of the Constitution of Mississippi, and as authority for this conclusion, I beg to cite the case of Belzoni Drainage Commissioners v. Wynne, 53 So. 778.

It is also submitted that Laws of Mississippi 1918, chapter 209, render an election necessary. Section 2 of this Act of the legislature provides: "That no interest-bearing debt, except as provided in section 1 of this act shall be incurred in any county, municipality or other taxing district, unless authorized by a majority of the electors who shall vote in an election called for that purpose. Laws of Miss. 1918, chapter 209, section 2.

I am aware of the decision of this court in Houston v. Mayo, 82 So. 334. This case was a decision of this court, in which the issuance of bonds under Laws 1914, Chapter 269, Hemingway's Code 4434, et seq. was involved. The one here involved is that law provided by chapter 39 of Mississippi Code of 1906, as amended, and it is respectfully submitted that the decision in Houston v. Mayo, supra, does not include the act here in question. It of course, does not appear that any election was held, or sought to be held, and for that reason, I respectfully submit that the action of the drainage commissioners is unlawful.

pose.

Gardner, McBee & Gardner, for appellee.

Is section 4264, Hemingway's Code, authorizing drainage commissioners of a district organized thereunder to alter, deepen and improve any and all natural drains and water courses in violation of section 90, paragraph "Q" of the Constitution of the state of Mississippi?

Counsel seems to concede that the drainage commissioners are authorized by the above section to improve the natural drains and natural water courses. Whether this is conceded or not we submit that by this statute, clearly the commissioners have such authority.

We are met with the contention that this law is unconstitutional under section 90, paragraph "A" of the constitution. This section provides: "The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws namely,

. . . .

Q. Relating to stock laws, water courses and fences, Constitution, sec. 90.

The cause of Ex parte Drainage Commissioners, 100 Miss. 821, was a case in which an effort was made to combine the forces of two drainage districts improving a natural water course. The statute there involved as the court said, conferred no power upon the commissioners to deal with natural water courses. The present statute does not confer power to deal with natural water courses, and for that reason this case is not in point.

The act in question is not a special act. Chapter 30 of the Code of 1906, as originally written was a special act because of section 1727 thereof, which is as follows: "The law is not local, it is not special, it is not private, it is a law applying to every county and every locality in the state." Cox v. Wallace, 100 Miss. 525-527.

Was an election necessary under section 2, Laws of Mississippi 1918, chapter 309? The money to be collected from landowners in a drainage district created under a statute like the one here in question for the purpose of paying the expenses of creating and maintaining the district is a local assessment and not a tax within the meaning of our constitution and statutes. Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; Daily v. Swope, 47...