Witty v. Ellsberry Drainage District

Anderson, J., delivered the opinion of the court. This is a petition by the drainage commissioners of the Ellsberry drainage district of Leflore county, filed in the chancery court of that county, asking the court to make a decree ratifying and confirming the action of said drainage commissioners in reassessing and reapportioning the benefits to the lands in said district, which it is alleged will — 651 — accrue in carrying out a certain, drainage project set out in the petition; and also the action of said drainage commissioners in providing for the issuance of the bonds of said district for the purpose of- paying the expenses of such improvement. There was a decree in the court below, ratifying and confirming the action of.the drainage commissioners, from which decree the appellant, a landowner in said district, prosecutes this appeal. The bill sets out in substance the following facts: That the Ellsberry drainage district' was organized in 1907 under chapter 39, Code of 1906, and drainage commissioners for said district, appointed in accordance with the statute, assessed the benefits to the lands in- the district which would accrue by the improvement then contemplated and later carried out by the commissioners; that the bonds of the district were issued and sold and the proceeds applied to meet the expenses of the channels and drains then dug by the commissioners; that since that work was done the main drains and ditches have come to be in a very bad condition by reason of deposits of silt and debris therein, and also by the growth of weefis and undergrowth in the bottoms and sides thereof, and by reason of the fact that in many places the banks of such ditches have sloughed off and caved in; that in many places the drains and ditches are so clogged that the flow of the water therein is greatly impeded; that in part this was caused by the failure of the former commissioners of said district to have said drains and ditches dug according to the grade and scale planned by the engineer; that as a result even when the waters are not high they overflow said drains and ditches, and render the lands in said district to a large extent unfit for cultivation, and the entire district unhealthy and unsanitary; that unless such drains and ditches are cleaned out at an early date the benefit of the drainage system as designed will be entirely lost to the owners of the land in said district ; that the main channel in said drainage district drains into Turkey bayou, thence through Hotellum brake (both of which are natural water courses) into Quiver river; that — 652 — it is not only necessary to alter, deepen, and improve the drains and ditches already in existence in said district, but also to alter, deepen, and improve the drainage through Turkey bayou and Hotellum brake into Quiver river, in order that a complete system of drainage may exist, for agricultural and sanitary purposes; that said commissioners have found it necessary to that end to levy an assessment upon the lands nf said district in the amount of forty-five thousand nine hundred forty two dollars and forty cents, that the first assessment of benefits in said district did not contemplate such an extensive ditching and draining of said district as has since been found necessary, and now proposed to be carried out; and in estimating the benefits said drainage commissioners' only considered the improvement then contemplated and afterwards carried out. There is attached to the bill as an exhibit thereto the proceedings of the drainage commissioners, making a reassessment and reapportionment of benefits which will accrue to the lands of said district by the additional drainage proposed, and providing for the issuance of the bonds of the district in the sum of forty-five thousand dollars. These proceedings were had under chapter 39, Code of 1906, and amendments thereto (chapter 196, Laws of 1912; section 4264 to 4332, inclusive, Hemingway’s Code), and as specially authorizing the reassessment and reapportionment of benefits, section 1712, chapter 39, Code of 1906 (section 4301, Hemingway’s Code), and section 1723a, chapter 39, Code 1906, as added by Laws 1912, chapter 196 (section 4315, Hemingway’s Code). It is contended on behalf of the,appellant that the drainage commissioners had no authority of law to reassess and reapportion the benefits against the lands of said drainage district and issue bonds against the same for the purpose of cleaning out, straightening, and deepening Turkey bayou and Hotellum brake, natural water courses, so as to drain into Quiver river; that the drainage commissioners have no authority to so deal with a natural water course as to'materially change the flow and course of its waters, — 653 — as is proposed to be done with reference to these tivo natural water courses., . The appellant concedes'that chapter 39, section 1683, Code of 1906, as amended by chapter 196, Laws of 1912 (chapter 99, section 4264, Hemingway’s Code), expressly authorizes the drainage commissioners to do the very character of work contemplated with reference to these two natural water courses. That section, among other things, provides that drainage commissioners shall have the power £to alter, deepen or improve, any and all natural drains and water courses as it may be necessary to alter, deepen or improve for the purpose of carrying out its purposes, so that a complete system of such drains may exist in the district for agricultural or sanitary purposes, or both, and may also, in addition to the construction of such drains, construct or erect such levees over the lands of others, or over the lands' to be acquired by the drainage district or commission for that purpose, as may be necessary to protect or reclaim any lands from overflow from any source. The provisions of this section, as now amended, are hereby made applicable to all drainage districts which may have heretofore been organized under the provisions of chapter 39 of the Mississippi Code of 1906.” , But appellant contends that this statute is unconstitutional because it is a local statute dealing with natural water courses, and to sustain that position the case of Belzoni Drainage Commission v. Winn, 98 Miss. 359, 53 So. 778, is cited.' By an examination of that case it will be seen' that the statute the court was dealing with there was chapter 183, Laws of 1910, which was purely and simply a local act creating the Belzoni drainage district. The court held the-act unconstitutional because violative of paragraph (q), section 90, of the Constitution, which prohibits the legislature from passing any local, private, or special laws “relating to, . . . water courses,” etc; that the act in question was a special or local law creat • ing that particular drainage district and providing for drainage by artificial drains, and in addition by the straightening and shortening of natural drains. — 654 — When the Ellsberry drainage district was organized in 1907, chapter 39, Code of 1906, the act under which it was formed, was a local act, because in section 1727, the last-section in the chapter, the counties of Sharkey, Issaquena, Lauderdale, Amite, Wilkerson, Claiborne, Warren, Chickasaw, Tippah, and Union were expressly excepted from its provisions. Under that law as it then stood, as held in Belzoni Drainage Commission v. Winn, supra, if the statute had conferred the power to deal with natural water courses, it would have violated the provision of the Constitution in question. However, chapter 39, Code of 1906, and amendments thereto (chapter 196, Laws of 1912; sections 4264 to 4332, inclusive, Hemingway’s Code), which nov governs this drainage district, is a general law, because in section 12, chapter 196, Laws of 1912 (section 4320, Hemingway’s Code), section 1727, Code of 1906, which excepted the counties above named, is expressly repealed. Therefore we have here a general law applying to all counties and all parts of the state and any and all drainage districts organized under it, which expressly authorizes the commissioners to deal with natural water courses as is contemplated in the present case. The court is therefore of the opinion that there is no merit in the constitutional objections urged against this statute. It is contended that the bonds, the issuance of which was provided for by the commissioners, whose action in so doing was ratified and confirmed by the decree of the court appealed from, are invalid because not authofized by a majority of the electors of the drainage district, as required by section 2, chapter 209, Laws of 1918, which provides: ■ “That no interest-bearing debt, except as provided in section 1 of this act shall be incurred in any county, municipality or other taxing district, unless authorized by a majority of the electors who shall vote in an election called for that purpose,” etc. There is no merit whatever in this contention. The court has decided this identical question in Huston v. Mayo, 120 Miss. 523, 82 So. 334, in which it was held that a drainage — 655 — district was not a municipality nor taxing district in the meaning of this statute; therefore it had no application to such districts. Affirmed and remanded.