Board of Mayor of Waveland v. Moreau

Cook, J., delivered the opinion of the court. The prayer of the bill of complaint in this case is in the following words, viz.: “The premises .considered, complainants pray that process issue for the defendants as required by law; that, on the final hearing of this bill, all the orders and undertakings of the said board of supervisors of Hancock county, under said act aforesaid, and all orders and undertakings of said sea wall commissioners acting under. said act, or under any orders of said board of supervisors, be declared null and void and of no effect; that a perpetual injunction be granted, restraining and enjoining said commissioners of sea wall district No. 1 of Hancock county, said Chas. G-. Moreau, Geo. R. Rea, John Osoniach, T. H. Herlihy, and William Ruhr, from entering into any contracts for the construction of sea walls in said district, and from assessing the property [413] of complainant or any other in said sea wall district for any supposed benefits, and from issuing or negotiating bonds or evidence of indebtedness or receiving the money, if any, derived therefrom; and that said sea wall district Ño. 1 of Hancock county be perpetually restrained and enjoined from assessing any betterment tax; and that said act be declared null, unconstitutional, and void. And, if mistaken in the relief prayed for, complainant prays for such other further general relief as the court may see proper.” The sea wall district was created under the provisions of chapter 275, Laws of 1914. After the establishment of the district and the appointment of commissioners according to the provision of section 4 of said act, and before the assessment of benefits, the board of supervisors, in response to a petition filed by the commissioners of the sea wall district, authorized the commissioners to borrow sixty thousand dollars and to issue the six per cent, bonds of the district therefor. The bill of complaint, after reciting these facts, prayed for relief as stated above. The sea wall district, defendants below, demurred to the bill, which demurrer was sustained and the bill was dismissed. There are two questions presented by this appeal: (1) Is chapter 275, Laws of 1914, unconstitutional, because the act does not fix the term of office of the commissioners? (2) Must an assessment of benefits be made as a condition precedent to the power of the board of supervisors to authorize the sea wall commissioners to borrow money and issue the bonds of the district therefor? ■ The first question is based on the theory that the commissioners ate officers in the constitutional sense, and for present purposes this will be conceded. To cover and cure just such statutory omissions, the legislature enacted section 3456, Code of 1906. This section of the Code automatically fixes “the terms of office of all offi [414] cers, not otherwise provided for by law” at four years. We think therefore that the failure to fix the term, of the officers in question will not invalidate the act. The act under review is a local improvement law, and the expenses of such works as are contemplated must be charged against the parties specially benefited, and be made a lien on their property. It is altogether probable that some of the lands in the district will receive more benefit than other lands, and it is therefore essential that the benefits be apportioned before the issuance of bonds. The act provides for appeals from the assessment of benefits — and it cannot be known how much each taxpayer will be required to pay until the assessment is made. It is true that section 24 fixes a lien on all lands as a security for the payment of the bonds, but it is also necessarily true that the amount to be charged against each piece of land will be apportioned according to its benefits. In fact, section 9, in express terms, makes it clear that the taxes assessed are to be “paid by the real property in the district in proportion to the amount of assessments of benefits thereon.” It will be noted, also, that section 12 of the act limits the levy in these words: “Provided that the total levy shall in no case exceed the value of the benefits assessed on said property.” Similar laws were discussed by the supreme court of the United States in Hager v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569. Without going into any detailed analysis of the act in question, it is our opinion that there must be an assessment of benefits before the board of supervisors is empowered to authorize the issuance of bonds. Reversed and remanded.