Wooten v. Hickahala Drainage District

Decision Date18 February 1918
Citation116 Miss. 787,77 So. 795
CourtMississippi Supreme Court
PartiesWOOTEN v. HICKAHALA DRAINAGE DISTRICT ET AL

October 1917

Division B

Appeal from the chancery court of Tate county, HON. J. G. MCGOWAN Chancellor.

Suit by R. B. Wooten against the Hickahala Drainage District and others. From the decree, complainant appeals.

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

Affirmed.

M. H Thompson, for appellant.

The Constitution of the United States of America, section 1, of article XV, of the articles in addition to an amendment of the Constitution prohibits any state from passing any law depriving any person of life, liberty or property without due process of law.

Under the first drainage laws of Mississippi known as The Alcorn Act, the chancery clerk was required to mail notices of the intention of the board to create the district, as well as assessment of benefits, to each owner of the lands contained in the district and this method of the notice of the landowners was the embodiment of the legislature's idea of taking property by "due process of law" and also met the interpretation of the supreme court of Mississippi as to the meaning and import of "due process of law." Brown et al. v. Board of Levee Comrs., 50 Miss. 468.

But the laws under which the district in question was organized dispensed with this kind of process entirely, providing only that notice of the intention of the board to create the district, as well as notice of the assessment of benefits, to be published for two weeks in a newspaper having a general circulation in the district, no copy of said notice is required to be mailed to non-resident landowners or affidavit made that his residence or post office address is unknown. I submit that the legislature has not the authority and power to make such radical change in the notice to be given to landowners.

In Brown et al. v. Levee Comrs., 50 Miss. 468, the supreme court of Mississippi, in defining the power of the legislature over process says: "The provision of the bill of rights that no person shall be deprived of life, liberty or property, except by due process of law inhibits the legislature from dispensing with personal service where it is practicable and has been usual under the general law." It does not take from the legislature power to amend the law and change the formula of remedies; provided, the fundamental right of personal notice, actual or constructive in personal suits, is not taken away. This cannot be designated as an action in rem. Chapter 269, Laws 1914, section, requires that "notice be given to the landowners," and then proceeds to outline a method of giving this notice, which, we respectfully submit, falls short of the constitutional guarantee that no person's property shall be taken without "due process of law." See Balch v. Glenn, 85 Kan. 735; Amer. Ann. Cases, 1913, page 406.

The appellant does not contend that constructive notice in a reasonable and sufficient form, and likely to reach the congnizance of the landowners is not such, notice as is justified by the judicial interpretation of due process of law, and we respectfully submit that the notice provided for by the drainage laws of Mississippi in question is not sufficient or likely to reach the cognizance of the owner. Pierce v. City of Huntsville, 64 So. 301.

The drainage chapter in question provides that the chancery court, where the land is situated in more than one county shall proceed to organize the drainage district and sections 3913, 3920, 3921 and 3922, provide the methods by which parties may be brought into chancery court, Mississippi Code of 1906. None of which provision are contained in the drainage act in question; we therefore respectfully submit that one kind of process for one class of cases, and another kind of process for another class of cases, in acquiring jurisdiction in the same court, is not permissible.

While the legislature may change the form, the fundamental rights cannot be disregarded. Brown et al. v. Levee Comrs., 50 Miss. 468, 478. The publication in the case at bar does not meet the requirements of chapter 296, Laws of Miss. 1914, in the following particulars: First, notice to the landowners fails to meet the requirement of section 1 of said chapter 269, in that the landowners' names are not set out; second, notice to the persons, owning or interested in lands in said district of the filing of engineer's report is defective in that there is an erroneous description of the metes and bounds of the district, under which said defective notice, said district was organized, and later by a blanket order, under another notice attempted to be perfected; third, the notice of the assessment of benefits is vague, indefinite and insufficient, because the bulk description of the land is not such description as was and is contemplated by section 7, page 337, of said chapter 269, Laws 1914.

Appellant herein, complainant in the court below, respectfully submits that the drainage chapter in question, to-wit: chapter 195 of the Laws of 1912, as amended, violates sections 159, 160 and 161, of the Constitution of the state of Mississippi of 1890.

These sections of the Constitution confer and define the jurisdiction of the chancery courts of Mississippi, said section 159 enumerating matters in which the chancery court has jurisdiction; said section 160 giving chancery courts jurisdiction to cancel deeds, remove clouds on title, etc., while section 161 gives said court jurisdiction, concurrent with the circuit court, over suits on official bonds, and in no instance is the chancery court given jurisdiction over drainage matters, drainage systems being a modern project and unknown to the laws of Mississippi prior to 1890. Therefore the only instance in which there is a possibility for the chancery court to acquire jurisdiction in matters in drainage is in subsection A of section 159, of the Constitution, "all matters in equity or subsection F," all cases of which said court had jurisdiction under the laws in force when this Constitution was put in operation. However chapter 195, Laws 1912, as amended, invests the chancery courts with the authority to establish drainage districts where the lands embraced is situated in more than one county, and appellate jurisdiction where the lands are situated in one county.

We respectfully submit that the establishment of a drainage district is not a matter of equity. "Equity is defined to be that system of justice which was administered by the high court of chancery in England." Smith v. Everett, 50 Miss. 575; Bank of Miss. v. Duncan et al., 52 Miss. 740.

The state Constitution is a limitation, and not a grant of power. The mandates of the Constitution are the supreme law to the legislative, executive and judicial departments of this government. State v. Skaggs, 46 So. 268.

The legislature cannot vest in the chancery courts duties and powers, other than those embraced in the sections of the Constitution creating and defining the powers and duties of the chancery courts of Mississippi. Bank of Miss. v. Duncan et al., 52 Miss. 740; Smith v. Everett, 50 Miss. 575; Powell v. McCamey, 143 Pacific, 752; State v. Tincker, 166 S.W. 1028.

The vesting in the chancery courts the authority and duty of organizing a drainage district cannot be justified under the police power of the state. While the courts cannot inquire into the wisdom of the legislature in exercising, in a reasonable way, the police power, however, the police power must be exercised within constitutional limitations. State v. Arminstead, 60 So. 778; State of Arkansas v. Kansas & T. Coal Co., 96 F. 353.

We do not contend that the creation of a drainage district is not within the power of the legislature and that the legislature may delegate the power and authority to create drainage districts to some body or tribunal, but we contend that the power and authority cannot be delegated to a court, the chancery courts of the state, whose jurisdiction over property and persons is prescribed by the Constitution, and which constitutional provisions do not specifically or inferentially include the establishment and supervision of drainage districts, and in fact said power being indirectly prohibited, in that it is not specifically granted.

The drainage laws in question, to-wit, chapter 195 of the Laws of 1912, as amended, violate section 170 of the Constitution of the state of Mississippi, in that the legislature delegates the fiscal and civil affairs of a county to a board other than a board of supervisors.

Said section 170 of the Constitution making the board of supervisors the sole agency for the handling of county affairs, and said chapter 195 of the Laws of 1912, as amended delegates certain acts in the creation of drainage districts to a board of commissioners, which said acts are not reviewed by the board of supervisors, to-wit the estimate of the costs of the ditch, location of the main and lateral ditches, and the probable cost of all work to be done, which filed with the clerk is not to be reviewed or approved by the board, said findings being final, no appeal therefrom being provided for. Section 6, page 335, Laws 1914.

Said chapter also provides that the commissioners shall issue the bonds of said district, which action of the commissioners is not reviewed or approved by the board of supervisors. Section 15, page 342, Laws 1914.

In Cox v. Wallace, 56 So. 461, at page 464, subsection 5 Chief Justice MAYES, substantially holds that the board of supervisors are to be the sole agencies through which drainage districts may be organized, or that the agencies must be an arm of the board of supervisors, and report all of its findings to the board of supervisors for adjudication. This...

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8 cases
  • Bank of Commerce & Trust Co. v. Commissioners of Tallhatchie Drainage Dist. No. 1
    • United States
    • Mississippi Supreme Court
    • 5 Mayo 1930
    ... ... 2 ... Drainage ... district commissioners acting within scope of authority can ... bind landowners by contracts ... Drainage District, 102 Miss ... 796; Yazoo County v. Grable, 111 Miss. 893; ... Wooten v. Hickahala Drainage District, 116 Miss ... 787; Kramer v. Standing Pine District, 117 Miss ... ...
  • Bank of Commerce & Trust Co. v. Commissioners Tallahatchie Drainage District No. 1
    • United States
    • Mississippi Supreme Court
    • 14 Diciembre 1931
    ... ... Cox v ... Wallace, 110 Miss. 526; Jones v. Drainage District, ... 102 Miss. 796; Yazoo County v. Grable, 111 Miss ... 893; Wooten v. Hickhala Drainage District, 116 Miss ... 787; Kramer v. Standing Pine District, 117 Miss ... 387; Mabry v. Russell, 134 Miss. 239; Jackson v ... owners of the land shall be directed to each owner by name ... Wooten ... v. Hickahala Drainage District, 116 Miss. 787 ... The ... proceedings under Chapter 195, Laws of 1912, and the ... amendments thereto, are judicial, ... ...
  • Branaman v. Long Beach Water Mgmt. Dist.
    • United States
    • Mississippi Supreme Court
    • 14 Enero 1999
    ...No. 1, 158 Miss. 7, 128 So. 339 (1930) (addressing the lower courts approval of an assessment of benefits); Wooten v. Hickahala Drainage Dist., 116 Miss. 787, 77 So. 795 (1918) (finding that the notices of the organization of the district and assessment of benefits as required by the statut......
  • Yocona Tallahatchie Drainage Dist. No. 1 v. Love
    • United States
    • Mississippi Supreme Court
    • 10 Noviembre 1924
    ... ... jurisdiction of landowners' petition to enlarge drainage ... district stated ... Under ... chapter 281, Laws of 1920, which provides that when ten per ... 111 Miss. 893; Grable v. Drainage District, 117 Miss. 387 ... The ... case of Wooten v. Hickahala Drainage District, 116 ... Miss. 787, holds that chapter 195 of the Laws of 1912, is ... ...
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