Wilkinson v. Gaines

1. DRAijstage Districts. Drains. 'Notice to nonresidents. Omission. Subsequent proceedings. Under Code 1906, § 1711, regulating drainage proceedings, failure-of the cleric to give notice of the organization of a drainage district to nonresident landowners by registered mail within five days of the first publication of the notice required by Code 1906, § 1687, touching the formation of districts, does not invalidate-subsequent proceedings. 2. Same. Constitutional law. Due process of law. Assessment. Notice. Where complainant had full notice of all proceedings subsequent to the publication of notice of the organization of the district, and was afforded full opportunity to question the validity thereof, and to object to the assessment, all the requirements of due process of law were met, even if the notice of publication was insufficient. 3. Same. Validity of proceedings. Objections. Code 1906, § 1693. An objection that a drainage district was invalid, because it embraced two watersheds, could not be made the basis of a bill to-enjoin the drainage commissioners from issuing bonds to complete the improvement, under Code 1906, § 1693, providing an exclusive statutory method for raising such objections.

Nbom tbs chancery court of, second district, Bolivar county.. HoN. MaNüel E. DeNtoN, Chancellor. Wilkinson, appellant, was complainant in tbe court below Gaines and others, appellees, were defendants there. Ero-m a final decree in defendants’ favor, complainant appealed to the supreme court. The facts are stated in the opinion of the court. Chapter 39 of the code, on drainage, which is commonly called the Alcorn Drainage Law, provides that when one third of the landholders owning one half of the land, or one half of the landholders owning one third of the land in the proposed district, desire to have a drainage district created, they shall sign a petition setting out the proposed drainage district by metes and bounds or by the proper description, and after the petition has been signed by the number, as above, it shall be filed in the office of the clerk of the chancery court. Section 1687 then points out what shall be done by the clerk before the court can have jurisdiction to act. That is, the clerk shall first publish a notice to all parties interested which notice shall be published in a newspaper for three weeks, giving the date of the hearing and the description of the district proposed to-be created. He shall also post ten notices in ten of the most conspicuous places in the district. In addition to this he must post a notice at the courthouse door for three weeks, and if one or more of the landholders or owners, are nonresidents of the district, and their postoffice addresses are known he must mail, under registered letter, a copy of the notice published by him. Each and every one of these things that are required of the clerk must be done and strictly complied with, before the court has jurisdiction to pass upon the subjects and matters required to be passed upon by it* under the provisions of the succeeding section. It is admitted in the statement of facts that instead of sending out these notices within five days of the first publication, as required by section 1687, the notices were not sent out by the clerk until eight days after the first publication and yet it is contended here that the failure of the clerk to send out those notices as required by law, is immaterial, and that the court bad jurisdiction over tlie subject matter and over the person, without complying with the plain mandate of the law. The failure of the court to acquire jurisdiction over the subject matter and person is plainly set out in 14 Oyc. 1034, which lays down the rule as follows: “Where the mandate of the statute is that the notice shall be given in a manner and for a time therein prescribed before the time fixed for the hearing of the petition the failure in any respect to give the notice thus required will render invalid, the hearing on the petition;” the authority cited under this text in note 5T will fully bear out the text laid down in Oyc. It was necessary under this doctrine, for the mandate of the statute to have been strictly complied with in order for the court to' have had jurisdiction. Manifestly the clerk’s failure in this .instance to mail the notice within the time required by law, rendered all subsequent' proceedings void. Williams v. Supervisors, 58 Oal. 237; Scott v. Brackett, 89 Oal. 413. In the last case cited the statute construed is very similar to ours and had a section which provided that any irregularities or imperfections in the proceedings prior to the order of the court establishing the district and levying the assessment should not be availed of by any party, after the order confirming the assessment. The drainage commissioners abused the power conferred upon them when they established one drainage district containing two separate and distinct water sheds and made the assessment of benefits practically the same. It is impossible to conceive how the drainage commissioners could possibly estimate the cost of draining two separate and distinct water sheds to be exactly the same and to assess the land on both water sheds exactly the same. If the other water shed in the district from that in which appellant’s land is. located should cost twice as much to drain as the one in which the land' is located, then manifestly, appellant is assessed for doing a piece of work that- does not benefit bis lands. Two questions are presented, first, did tbe failure of tbe clerk to send out notice by registered mail to tbe foreign or nonresident landholders of tbe drainage district within five days of tbe first publication of tbe notice render all of tbe subsequent proceedings void; and second, did the drainage commissioners •of tbe county have a right to embrace two water sheds in tbe same drainage district? Tbe following authorities are conclusive of both questions: Sykes v. Mayor, etc., 55 Miss. 115; Kenosha v. Lawson, 9 Wall. 457, 19 Law. Ed. 1725; Outler a)..Madison County, 56 Miss. 115; Rogers v. Keokuk, 18 Law. Ed. 75; Town of Thompson v. Perrin, 103 IT. S. 806; Bricson v. Cass, 92 N. W. 841; Stuart v. Board of Police, 25 Miss. 479; New Orleans, etc., P. Co. v. Hemphill, 25 Miss. 17; Ridley v. Ridley, 24 Miss. 648; Calhoun v. Ware, 24 Miss. 146; Brwin v. Heath, 50 Miss. 795; Kepler v. Wright, 35 N. E. 1017; Montgomery v. Wasson, 15 N. E. 796; Otis v. DeBore, 19 N. E. 317; Calkins v. Spaker, 26 Ill. App. 159; McMullen v. State, 105 Ind. 333; Ham v. Levee Commissioners, 83 Miss. 534, 35 South. 943; Phillips v. Wickham, 1 Paige, 590; Hartwell v. Armstrong, 19 Barb. 166; Cooper v. Williams, 27 Am. Dec. 745; Craig v. People, 188 Ill.; 'Sumner v. Union Drainage District, 17 5 Ill. 413; Pay son v. People, 175 Ill. 267; Cooper v. People, 139 Ill. 461; Drainage Commissioners v. Qriffin, 134 El. 330; Munsey v. Joest, 74 Ind. ■409; Reclamation District v. Burgess, 122 Oal. 442; Taylor v. Burnap, 39 Mich. 739; Camphugh v. Drainage Commissioners, 105 Mich. 422.