Memphis & C. Ry. Co. v. Bullen

Appellant filed the bill in this case against appellees, the members of the board of supervisors of Tishomingo county, and Omer J. Bullen, sheriff and tax collector of that county, to enjoin the former from levying, and the latter from collecting, an ad valorem tax on the taxable property of the appellant in the Oldham road district. A temporary injunction was issued and served in accordance *Page 543 with the prayer of the bill. There was a trial on bill, answer, motion to dissolve the injunction, and proof, resulting in a final decree dissolving the injunction, and dismissing appellant's bill. From that decree, appellant prosecutes this appeal. The Oldham road district was organized under chapter 277, Laws of 1920. Appellant contends that the manner of the organization and establishment of road districts, under the provisions of that chapter, deprives property owners of such districts, not petitioning therefor, of due process, in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution; and, to maintain that position, appellant relies onBrowning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330. The Texas statute under consideration in that case conferred power on the property owners, petitioning for the organization of the road district, to arbitrarily fix, in their petition, the territory to be included in the district, and, therefore, the property to be taxed. The supreme court held that that was one of the essential elements which determined the burden to be borne by the taxpayers of the district, and that it was essential to due process of law that the property owners be given an opportunity to be heard on that question. Section 2, chapter 277, Laws of 1920, provides as follows: "That upon presentation to the board of supervisors of any county of a petition containing the names of twenty per cent of the qualified electors of any one or more supervisors districts of any territory proposed to be created and organized into a road district of such county asking that such district or districts or territory be permitted to come under the provisions of this act it shall be the duty of such board of supervisors to order an election to be held on a day to be fixed by them submitting the proposal to issue bonds of such district or districts to the qualified electors of such district or districts *Page 544 and the election commissioners of such county shall give notice of such election to issue such bonds by publication in a newspaper published in the county, having a general circulation therein, and if none be therein published, then in some newspaper having a general circulation therein, published elsewhere, for three successive weeks, which said election shall be held and be conducted according to the provisions of the chapter on `registration and elections' of the Code of 1906, so far as applicable; the tickets to be used in such election to contain the following: `For the issuance of bonds', and either below or above it, in the ticket, `Against the issuance of bonds.'" Appellant contends that that section of the statute provides substantially the same scheme for the organization and establishment of road districts as the Texas statute did that was condemned by the supreme court of the United States in Browning v. Hooper, supra. The view we take renders it unnecessary to decide this question, for we are of the opinion that, if it be true that chapter 277, Laws of 1920, violates the due process clause of the Fourteenth Amendment, as construed in Browning v.Hooper, nevertheless, the establishment and organization of the road district involved, the issuance of bonds therefor, as well as the other acts and things done in pursuance of the statute, were validated by chapter 278 of the Laws of 1926, section 8547, Hemingway's 1927 Code. That statute validates all road districts theretofore organized under any road laws of the state, and provides that the bonds issued for such districts shall be legal, and that all acts and resolutions of the boards of supervisors done and passed in pursuance of any such statute, as well as all levies of taxes on the property of such districts, under the provisions of any such law, shall be valid. Before the passage of chapter 278, Laws of 1926, and at the same session of the legislature, chapter 1080, Laws *Page 545 of 1926, was adopted. The latter was a special and local act applying alone to the particular road district involved. The title to the act fairly portrays its purpose, which is: "An Act to validate the organization of the `Oldham' Road District of Tishomingo county, Mississippi, to confirm the boundaries thereof, to validate the authorization, issuance and sale of certain road bonds thereof, to authorize the issuance of additional bonds thereof, and to provide for their payment." Section 1 of chapter 278, Laws of 1926, provides as follows: "That in cases where the board of supervisors of any county in this state has organized or attempted to organize a road district under the provisions of the statutes of this state, where the creation of such district or the issuance of the bonds thereof has been validated or attempted to be validated by any statute enacted during the 1926 session of this legislature, such district, with the boundaries set forth and described in the minutes of the Board of Supervisors, or set forth and described in any Act passed at this session of the legislature, be, and the same is hereby declared to be a valid road district of such county, and the organization and creation and all orders, resolutions and proceedings of the Board of Supervisors in connection with such organization and creation, be, and they are hereby confirmed and ratified." It will be seen from these two statutes that the legislature attempted to validate the road district involved and the bonds issued therefor, first by a local act specifically describing the boundaries of the district, and then by a general act, made applicable to all road districts in the state, regardless of what statute they were organized and established under. If the legislature had delegated to the boards of supervisors the legislative authority to establish road districts in their counties, fix the boundaries thereof, and prescribe the amount of bonds to be issued for such districts, and levy the necessary *Page 546 ad valorem tax with which to pay the bonds and maintain the roads of the district, without an opportunity of hearing on the part of the property owners of the district, and without an election on the question whether the bonds should be issued or not, such a statute would not have violated the due process clause of the Fourteenth Amendment to the Federal Constitution.Browning v. Hooper, supra; Valley Farms Co. v. Westchester,261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585; Hancock v.Muskogee, 250 U.S. 454, 39 S.Ct. 528, 63 L.Ed. 1081; St. Louis S.W.R. Co. v. Nattin, 277 U.S. 157, 48 S.Ct. 438, 72 L.Ed. 830, and Swayne v. Hattiesburg, 147 Miss. 246, 111 So. 818, 56 A.L.R. 926. In other words, if chapter 277 of the Laws of 1920, instead of the scheme therein set out for the organization and establishment of road districts, had conferred on the boards of supervisors the legislative authority to organize and establish road districts as just above set out, clearly, under the cases cited, the statute would not have contravened the due process clause of the Fourteenth Amendment. Appellee's contention is that each of these statutes validated the road district involved and the bonds issued therefor. The court is not in agreement as to whether the local and special act violates section 90 of our Constitution, but is in agreement that there is no constitutional objection to chapter 278, Laws of 1926, and that the district and its bonds were validated by that act, for the reasons given, which we will undertake to state again in a very brief manner. Under the Fourteenth Amendment, the legislature of a state may directly, by a legislative act, select and lay out local improvement districts and spread the costs of their improvement over the property of the districts in the form of taxes, or the legislature may delegate that authority (which is legislative authority) to the governing body of each county. Concede that such authority was not conferred on the *Page 547 boards of supervisors by chapter 277, Laws of 1920, still, it was accomplished by the curative act (chapter 278, Laws of 1926). It is beyond question that the legislature has the power, under the Constitution, to validate the bonds issued by any political subdivision of a state which it could have previously, constitutionally, authorized. Griffith v. Vicksburg,102 Miss. 1, 58 So. 781; Bacot v. Hinds County, 124 Miss. 231, 86 So. 765; Parker v. Grenada County, 125 Miss. 617, 88 So. 172;Jackson E. Railway Co. v. Burns, 148 Miss. 7, 113 So. 908;Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557. We are of the opinion that the other contentions of appellant are without merit, and are not sufficiently grave to call for discussion by the court. Affirmed.