Cox v. Wallace

Mayes, C. J.,

delivered the opinion of the court.

In August, 1910', the board of supervisors of Tippah, county commenced the organization of a drainage district therein, called the “Muddy Bottom Swamp Land District No. 1.” The proceedings were initiated under secy tions 371 to 391 of the Code of 1906. The initial proceedings by the board were based on the petition required to be filed by section 371, and all subsequent proceedings show that every requirement of the various statutes dealing with this subject, and included within sections 371 to 391, were literally complied with in every particular. In truth, the pleadings raise no question as to any failure on the part of the board to follow every requirement of the law.. The object of the suit is to challenge the constitutionality of all the sections under which these-drainage proceedings were instituted, from 371 to 391, inclusive.

With this statement of the case, it is unnecessary to set out in this opinion any of the proceedings of the hoard. By merely looking at the statute and seeiug what is required to be done before the hoard has power to create the district, we see what the board did do, since the pleadings virtually confess that the board literally followed the statute. After the board had established the district, and before any tax had been levied, a petition *534 was filed, under section 382, praying that the board anticipate the tax as therein authorized and issue bonds to defray the expense of the reclamation and drainage of the land. This petition complied with the law in all particulars. In March, 1911, in pursuance of this petition, the board passed an order directing the issuance and the sale of twenty-five thousand dollars in swamp land bonds. Section 383 of the Code requires that notice be given by publication, and notice by publication was given to all persons having or claiming any interest in the lands in the district. At this stage of the proceedings appellant filed this bill, alleging that he owned fifty-five acres of land in the district, and prayed that the issuance and sales of the bonds be enjoined.

We shall discuss each of the constitutional questions raised by the bill, and will not, therefore, enumerate them at this point of the discussion. The answer admits all allegations of fact contained in the bill as of course, since the bill merely charges a compliance with the law, but denies the unconstitutionality of the sections in question. The case was heard on bill and answer, and the injunction dissolved by. the court, and from this judgment an appeal is prosecuted.

The constitutionality of drainage laws has been so frequently before the courts of this and other states, and so thoroughly and exhaustively discussed, that it becomes a matter of little difficulty to test the validity of laws of this character with the settled rules of law that control. We have nothing to do with the wisdom or necessity of laws enacted by the legislature. Such questions are for tbe legislature alone. It may be true, as is argued by counsel for appellant, that in view of the fact that chapter 39 of the Code of 1906 contains a perfect system of laws for the creation of drainage districts there is no necessity for the drainage laws found in sections 371 to 391 of the Code; but this is an argument to be made to the legislature in justification of the repeal of one or the *535 •other system of laws on this subject, but this court cannot invalidate or refuse to enforce either law on this .ground. If both laws are valid, the people in the districts to be affected may select either that suits their fancy so long as both stand in force.

Many of the questions raised by appellant require only ■passing notice. At this point it may not be amiss for us to consider this law from the standpoint of whether or not it is enacted for the accomplishment of a public, as •distinguished from a private purpose, within the definitions of the law. The whole law has for its object the reclamation of swamp and overflowed lands so as to make them productive and valuable to the owners and to the state. When this object is attained, a public and private good is accomplished. It helps the state, the individual owner of the land, and the health of the community. ' In Cooley on Taxation, in note on page 211 (volume 1, 3d Ed.), it is said: “The authority of the legislature to enact drainage laws.is derived from the police power, the right of eminent domain, or the taxing power, and is undoubted. It is founded in the right of the state to protect the public health and provide for the public convenience and welfare.” While we quote from Cooley, we may say that the right of the state legislature to enact such laws is not doubted by any state o.r federal decision that we have found, or that counsel for appellant had •directed to our attention, and it is now too thoroughly imbedded in our law to be uprooted or questioned. Such laws are not only upheld by the decisions of this court, but are found in the statutes from the early times and recognized by the Constitution of the state.

The expenses of drainage districts, like other local assessments, are maintained by local or special assessments on the property benefited, and, of course, it can never be an objection to such laws that all the persons in the country are not so taxed, because property of all may derive no benefit therefrom. The very basis of the *536 right to impose the tax rests in the benefit accruing to. those who pay the tax alone. In section 1844, Gray’s Limitations of Taxing Power, it is stated that local assessments may be laid on property for every public purpose which pertains to the physical benefit of the property assessed. That drainage districts can be created in this state and maintained by local assessment, and that such laws are in furtherance of a public purpose, has been settled in this state since the case of Daily v. Swope, 47 Miss. 367 . See, also, Gray’s Limitations of Taxing Power, sec. 1844. The Supreme Court of the United States in the case of Hagar v. Reclamation District, 111 U. S. 701 , 4 Sup. Ct. 663, 28 L. Ed. 569 , in upholding the right of the states to create drainage districts, uses the following language: “It is not open to doubt that it is in the power of the state to require local improvements to be made which are essential to the health and prosperity of any community within its borders. To this end it may provide for the construction of. canals for draining marshy and malarious districts, and of levees to prevent inundations, as well as for the opening of streets in cities and of roads in the country. . . . Such authority may be lodged in any board or tribunal which the Legislature may designate.” See, also, Mound City, etc. v. Miller, 170 Mo. 240 , 70 S. W. 721 , 60 L. R. A. 190, 94 Am. St. Rep. 727 .

In view of the unanimous authority upholding the power of the legislature to enact drainage laws and fix the burden of their maintenance on the districts benefited, it is idle for us to further pursue this branch of the discussion. Through the assertion of this power on the part of the legislature of this state, the richest and most desirable lands in the state have been rescued from the swamps and the marshes, and valueless and uninhabitable swamps have become healthful and productive communities. Lands that the state formerly found it difficult to dispose of for the tax due on same now command *537 higher prices than any other lands in the state. The ■enforcement of these laws has given practical demonstration that their object is both public and private in purpose, and that they have subserved a great public purpose. If the laws involved here violate either the state or federal Constitution, it is for some reason other than a want of power in the legislature to enact such laws.

One of the objections urged by counsel for appellant is that the whole act is void, because it conflicts with paragraph “q” of section 90 of the Constitution, which provides that “the legislature shall not pass local, private, or special laws relating to stock laws, watercourses, ■etc.” It is argued by counsel that the statutes in question violate the above paragraph of the Constitution, because the last clause of section 371 provides that it ■should not apply “to lands overflowed by backwaters of the Mississippi.” We are not familiar, with the reason of the legislature for excepting from the provisions of this act this character of’lands subject to overflow. We presume that it was because such lands are under the control of the levee districts created by article 11 of the Constitution, and the purpose of the legislature was to avoid conflicts of jurisdiction; but, whatever may be the reason, this exception does not make of the statute a local, private, or special law in relation to watercourses within the meaning of the above section of the Constitution. 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. It is true that the law excepts from its operation a certain character of land subject to overflow; but the law itself is applicable to every part of the commonwealth. The exception contained in section 371 does not make the law conflict with paragraph “q” of section 90 of the Constitution.

Another argument of counsel for appellant is that the ■statutes violate section 170 of the Constitution. Let us see if any provision of the statute conflicts with section *538 170. Under certain conditions named in the statutes power is given to the board of supervisors to create drainage districts. . "While it is true that section 170 of the Constitution confers on the board of supervisors, full jurisdiction over roads, ferries, etc., it is further provided that the board “shall perform such other duties as may be required by law,” and the duty imposed on the board in regard to these drainage districts under this statute is merely an additional duty “required by law,” in strict keeping with the power of the Legislature to require. That the statute is to be enforced by a board is no objection to its validity. In the case of Mound v. Miller, 170 Mo. 240 , 70 S. W. 721 , 60 L. R. A. 190, 94 Am. St. Rep. 727 , the court said: “The details of the laws may be different, the agencies employed by the state to carry the laws into effect may differ, but this in no wise affects the constitutionality of the law. The fact that under some laws the county courts are charged with the duty of carrying the law into effect, while in others commissioners are provided for that purpose, and in others, the people themselves are empowered to organize into-corporations called ‘drainage districts,’ makes no difference. It is competent for the state to raise up a governmental agency, for the enforcement of its public powers,, and for the purpose of enhancing its revenues and carrying its revenue laws into effect. The agency thus created is an arm of the state, a political subdivision of the state, and exercises prescribed functions of the government.” See, also, Hagar v. Reclamation District, 111 U. S. 701 , 4 Sup. Ct. 663, 28 L. Ed. 569 .

Appellant again contends that the statutes are void because they violate article 11 of the Constitution. In our judgment this contention is without force. ' Article 11 is addressed to the maintenance of two levee districts named in section 228 of the Constitution. It only requires that the division made by .the legislature of the alluvial land of the state into two levee districts — that is *539 to say, the Yazoo-Mississippi Delta District and the Mississippi Levee District — be recognized and-continued as, then shown by the laws creating same “until changed by law.” This article has its application only to the levee districts therein named, and does not prohibit the-legislature from creating other districts not connected therewith. No part of the article under discussion intended to restrict the Legislature of the state in its full exercise of the police power in the creation of other drainage districts in any other parts of the state for reclamation of overflowed lands, wherever and whenever in the judgment of the legislature it was necessary. The article in question made it obligatory upon the legislature to maintain a levee system in the state as provided in that article, but as to all other overflowed lands the full power of the legislature to act at discretion was left undisturbed.

Appellant again insists that .the statutes violate section 17 of the Constitution of the state, in that they permit the taking of private property for use not public. In a former part of this opinion we had occasion to discuss the question whether or not the creation of drainage districts, having for their object the-reclamation of overflowed lands, was a public purpose. We shall not repeat that discussion.

Counsel for appellant further insists that section 17 of the Constitution is violated, because the statute provides no way for the judicial determination of whether or not the purpose is a public purpose. While section 17 of the Constitution declares that, “whenever*an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public, ’ ’ yet the fact that appellant is now in court litigating this very question shows that there is ample remedy in the law afforded to all interested parties to test this question.

*540 It is again urged that under section 33 of the Constitution it is provided that “the legislative power of this state shall be vested in the legislature, which shall consist of a Senate and a House of Representatives,” etc. Appellant contends, because the statute itself does not create the district, but leaves it under certain conditions for the board of supervisors to create, that in this way the legislature has delegated to the-board of supervisors its legislative powers. The cases of Williams v. Cammack, 27 Miss. 209 , 61 Am. Dec. 508 , and Alcorn v. Hamer, 38 Miss. 749 , are cited in support of this contention. In our judgment, these very cases destroy appellant’s contention on the record in this case. In both of the cases cited above it is correctly held that the legislature of a state cannot undertake to pass-a law and leave it to a vote of the people as to whether or not any statute is or is not a law. This is sxxbmitting to another forum, the powers of legislation. Such a law would not derive its force from the legislature, the lawmaking power, but from a source other than the lawmaking power. But, while this is true, the legislature may pass a law and leave its enforcement to the option of those affected by It. In such a case the law itself is complete. It derives no force as a legislative act from the fact that those of a particular district do or do not choose to put it into ■effect. The lawmaking power has finished its work when it passes the complete law. If its enforcement is rejected by those to whom the legislature delegates this right, this cannot be said to be delegating any legislative power, and this is what the two cases cited above hold. Laws of this character are not strangers to the statute books of this and all other states. Such are the local option laws and the stock laws of the state, and many others of a similar nature. Such laws are in the highest degree essential and considerate, and a legislature that is truly careful of the rights of persons on whom local assessments are sought to be imposed will protect them *541 from burdens and hardships by allowing those to be affected and who are to pay to invoke the tax themselves.

Counsel again argues that the statutes violate section 112 of the Constitution. This section provides that: ‘ ‘ Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value, ’ ’ etc. The answer to this is that we have held in the cases of Daily v. Swope, 47 Miss. 367 ; Vasser v. George, 47 Miss. 713 ; Nugent v. Jackson, 72 Miss. 1040 , 18 South. 493 , and Edwards v. City of Jackson, 91 Miss. 429 , 45 South. 14 , that section 112 of the Constitution has no application to local assessments. The paving of streets in cities and towns is done under local assessment laws. Parties owning property pay according to the frontage on the street. The actual value of lots on the street paved may vary thousands of dollars. One person may own a lot in the business portion of the city worth ten thousand dollars, and have only a frontage of forty feet; another may own a lot on the remote end of the same street, worth not more than five hundred dollars. The cost of paving per foot o,r yard in both sections of the city is exactly the same. The party owning the lot with one hundred feet front and worth only five hundred dollars may be required to pay two and one-half times as much as the party owning a more valuable lot. The benefit obtained by the person owning the large but cheap lot may be insignificant as compared with the benefit accruing to the person owning the small but more valuable lot. The cost to the "owner of the cheap lot is greater and the benefit less, but there is no such inequality of taxation as would avoid the right to impose the tax. Each is supposed to receive his just benefit. It is concededly impossible for any method of taxation to exist which works out exact equality. But some method of taxation must exist approximating equality as nearly as it can. The method of taxation adopted by section 375 *542 of the statute is so much per acre. This same method applies to all the lands in the district, though some maybe more benefited by the drainage than others, and though some of the lands may be more valuable than other lands; but this does not invalidate the tax. That an acreage tax in assessments of this character may be imposed, see 2 Cooley on Taxation, page 1226, and note 3.

Counsel for appellant again urges that the statute violates the due process clause of the state and the United States Constitutions, in that it does not provide for notice to be given to the taxpayer of the assessment. An examination of the statute, however, shows that there is nothing in this contention. The proceeding was for the purpose of issuing bonds; but before any bonds can be issued it must he on petition of the owners of the land to be taxed, as required by section 382 of the Code, and then section 383 requires that the petition filed with the board for this purpose shall be filed in the clerk’s office at least thirty days before the order is entered for the issuance and sale of the bonds; and it further requires that before the petition is acted upon the parties in interest shall be notified by citation, signed by the clerk and published for four weeks in some newspaper published in the county in which the land is situated, to appear before the board on a day named, to show cause why the petition should not be granted. The statute prohibits the board from taking up the matter for consideration until there shall be given a time for a hearing. It is thus seen that the law does provide that notice shall be given to the taxpayer, and when the taxpayer appears he may show any cause which he may have to prevent the levying of the tax or to impeach the proceedings leading up to the issuance and sale of the bonds. By this section he is given his day in court, and if dissatisfied with the action of the court he may do as appellant has done — enjoin further proceedings and bring the whole matter into the courts for judicial review. It is *543 needless to cite authority on the proposition that it is unnecessary to give personal notice. In volume 2, page 1241, Cooley on Taxation, citing many authorities from the United States courts, it is held that this notice by publication is sufficient if the statute so provides; and this statute does so provide. See, also, Londoner v. Denver, 210 U. S. 373 , 28 Sup. Ct. 708, 52 L. Ed. 1103 . Before the matter of final liability to this tax became imposed on the landowners of the district, they all had due notice, as was required by statute. In 2 Cooley on Taxation (3d Ed.), pp. 1238 and 1240, citing many authorities to support the text, the author says: “The .right of the taxpayer to be heard at some proper stage of the proceedings is as clear in the case of this species of taxation as any other,” but “it is enough if those who are to bear the burden have a right to be heard before the assessment becomes a final lien"upon their property.” It is not necessary for the taxpayer to have notice of every preliminary proceeding, if at the end and before final liability he may have an opportunity to object to all. See, also, Wilkinson v. Lee, 96 Miss. 688 , 51 South. 718 .

We have endeavored to answer each of the objections urged by counsel for appellant by which it is sought to invalidate this bond issue. We do not think there is any force in any of them. It follows, from the foregoing views, that the bonds issued by the board of supervisors under section 382 of the Code are valid, and that this cause is affirmed. Affirmed.