Opinion
No. 28474.
May 5, 1930.
1. DRAINS.
Drainage districts are public as well as private corporations.
2. DRAINS.
Drainage district commissioners acting within scope of authority can bind landowners by contracts.
3. JUDGMENT.
Judgment aganst commissioners of drainage district for preliminary expenses incurred prior to abandonment of improvements was res judicata against all landowners of district.
4. DRAINS. Under statute, chancery court must apportion indebtedness of drainage district where improvements are abandoned, and direct whether it shall be paid by acreage tax or ad valorem tax.
Laws 1912, chapter 195, section 4, as amended by Laws 1914, chapter 269, section 4, Laws 1918, chapter 159, section 1, and Laws 1922, chapter 213, section 1, relates to apportioning indebtedness between counties and levying tax if improvements in drainage district are abandoned after indebtedness is incurred.
5. CONSTITUTIONAL LAW. Drains. Failure of statutes relating to taxes to pay preliminary expenses of drainage district abandoning improvements to provide for notice to landowners does not violate due process clause as regards ad valorem taxes ( Laws 1912, chapter 195, section 4, as amended; Constitution, United States Amendment 14).
Laws 1912, chapter 195, section 4, as amended by Laws 1914, chapter 269, section 4, Laws 1918, chapter 159, section 1, and Laws 1922, chapter 213, section 1, provides that if an ad valorem tax is levied to meet indebtedness of district for preliminary expenses where improvements are abandoned, the last land assessment rolls of counties in which lands are situated are to be used, and under the statutes the assessment of land values as represented by such rolls is made after due notice to, and an opportunity of hearing by, the landowners, and no other notice is necessary in order to furnish due process to landowners of district.
6. DRAINS.
Ad valorem tax levied for expenses of drainage district abandoning improvements must be apportioned among counties in proportion assessed value of lands each bears to total (Laws 1912, chapter 195, section 4, as amended).
APPEAL from chancery court of Tallahatchie county, First district. HON. R.E. JACKSON, Chancellor.
Julian C. Wilson, and Wilson, Gates Armstrong, all of Memphis, Tenn., for appellants.
The provisions of the Act of 1914, chapter 269 and 1918, chapter 159 are constitutional in that full notice is given to all landowners of the application for organization, the description of their lands to be embraced, and the making and approval of assessments. The proceedings are begun by initial notice to landowners in the chancery court, and they are to the knowledge of each landowner pending and open from the initial step to the close of the proceedings.
Chapter 269, Acts 1914, pp. 329, 331, 337; Cox v. Wallace, 100 Miss. 526; Jones v. Drainage District, 102 Miss. 796; Yazoo County v. Grable, 111 Miss. 893; Wooten v. Hickahala Drainage District, 116 Miss. 787; Kramer v. Standing Pine District, 117 Miss. 387; Mabry v. Russell, 134 Miss. 239; Jackson v. Burns, 148 Miss. 7; Houck v. Little River Drainage Dist., 239 U.S. 254, 60 L.Ed. 266; Breiholz v. Pocahontas County, 257 U.S. 118, 66 L.Ed. 159; Missouri Pacific R.R. Co. v. Western Crawford Road Improvement District, 69 L.Ed. 237.
The Drainage Law of 1912, page 217 is constitutional.
Yazoo County v. Grable, 111 Miss. 893; Buford v. State, 146 Miss. 66-82; Holmes v. State, 146 Miss. 351-360; Johnson v. State, 146 Miss. 593-599.
The district owes for the maps, plans, surveys, tents, stakes, etc., bought by the commissioners for the district. It was a necessary expense of the work of the district preliminary to making the assessment and digging the drainage ditches. The commissioners by the contract for that purpose bound the district to pay the agreed price for these things.
Tallahatchie Drainage District No. 1 v. Yocona Tallahatchie Drainage District No. 1, 148 Miss. 182.
That debt has been merged now in a judgment affirmed by this court. The district, as a corporate body politic, capable of suing and being sued, was a defendant to the suit on which the judgment was obtained being represented by its commissioners who appealed to this court, then and are appellees here now.
Tallahatchie Dist. v. Yocona District, 148 Miss. 182.
The judgment is fully and in all respects res adjudicata against the landowners and taxpayers.
Williams v. Board of Supervisors DeSoto County, 139 Miss. 78; Von Zondt v. Town of Braxton, 149 Miss. 461; Jonestown v. Ganong, 52 So. 692; Ashton v. City of Rochester (N.Y. Ct. of App.), 30 N.E. 965-968; Shanahan v. City of South Omaha (Neb.), 89 N.W. 285-288; Stone v. Winn (Ky. Ct. App.), 176 S.W. 933-940; Eaton v. Board of Trustees, Mocksville School Dist. (N.C.), 114 S.E. 689; Missouri Pac. R.R. Co. v. Sears (Ark.), 265 S.E. 653-655.
The chancery court having refused to treat this claim as a proper debt against the district and apportion the amount of it among the several counties of the district, either to be paid by the boards of supervisors direct or by the boards of supervisors by a tax levied on the lands in each county, the case should be reversed with specific directions to so apportion the tax among the counties and directions as to how the same should be laid.
J.M. Kuykendall and Caldwell Caldwell, all of Charleston, and Watkins, Watkins Eager, of Jackson, for appellee.
The drainage commissioners have the right to test the constitutionality of the act.
Section 14, Bill of Rights, Constitution of State of Miss.; Section 24, Bill of Rights, Constitution of State of Miss.; The Fourteenth Amendment to the Constitution of the United States; Section 33, Constitution of the State of Miss.; Pearl River County v. Lacy Lumber Co., 86 So. 755, 124 Miss. 85; Norwood v. State, 136 Miss. 272; State v. Grenada County, 105 So. 541; State v. Wheatley, 113 Miss. 555; Toombs v. Sharkey, 140 Miss. 676.
Section 1, chapter 159, Mississippi Laws of 1918, exclusive remedy, if appellants, at any time, entitled to relief.
Enochs v. Robertson, 91 So. 21, 128 Miss. 361; State v. Piazza, 66 Miss. 426; Woodruff v. State, 71 Miss. 115; Revenue Agent v. Stonewall Mills, 80 Miss. 90; State v. New River Dramage District (La.), 87 So. 310.
While the legislature of the State of Mississippi had the right to create by legislative enactment a drainage district, and had the right to confer the same authority upon some other tribunal, which was done in this case; and the Legislature of the State of Mississippi had the further right, by legislative enactment, to fix the costs in the event the district was abandoned, the legislature has not done so in this case, but has attempted to confer the right upon the chancery court, and the act wherein such result is sought to be obtained is unconstitutional and void, because the legislature, not having fixed the costs, property owners were and are entitled to notice, and the statute contains no such provision.
Fall Brook Irrigation District v. Bradley, 164 U.S. 112, 41 L.Ed. 369; Houck v. Little River Drainage District, 239 U.S. 254, 60 L.Ed. 266; Redman v. Drainage District (Fla.), 80 So. 300; Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818; Memphis Charleston R.R. Co. v. Bullen, 154 Miss. 536, 121 So. 826; Hancock County v. Shaw, 120 Miss. 48, 81 So. 647; Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818; Union Savings Bank v. City of Jackson, 84 So. 288, 122 Miss. 557; Bouslog v. City of Gulfport, 72 So. 896, 112 Miss. 184; Sick v. Bay of St. Louis, 74 So. 272, 113 Miss. 175; Hagar v. Reclaimation District, 111 U.S. 701, 28 L.Ed. 569; Spencer v. Merchant, 125 U.S. 345, 31 L.Ed. 763; Embree v. Road District, 250 U.S. 242, 60 L.Ed. 625; Russell v. Mabry, 99 So. 2, 134 Miss. 239; Bradford v. Creekmore, 107 So. 525, 142 Miss. 565; Redman v. Drainage District (Fla.), 80 So. 300; Londoner v. Denver, 210 U.S. 373, 52 L.Ed. 1103; Turner v. Wade, 254 U.S. 64, 65 L.Ed. 134.
There has been a statutory exhaustion of the power of apportioning expenses.
Drainage Dist. v. Clark Parker, 86 So. 859, 124 Miss. 382.
Argued orally by Julian C. Wilson, for appellant and by W.H. Watkins and J.M. Kuykendall, for appellee.
After the affirmance by the Supreme Court of the judgment of the circuit court of Tallahatchie county in favor of the Yocona-Tallahatchie drainage district, against the Tallahatchie drainage district ( 148 Miss. 182, 114 So. 264), the Yocona district transferred and assigned the judgment to appellant, the Bank of Commerce Trust Company. The drainage improvements in the Tallahatchie district had been abandoned before there was any assessment of benefits, and the judgment represented preliminary expenses incurred prior thereto. Appellants, the Bank of Commerce Trust Company and the Yocona district, joined in a petition to the chancery court of Tallahatchie county, which court was administering the affairs of the Tallahatchie district, to collect the judgment by having the chancery court, under the authority of section 4, chapter 269, Laws of 1914, as amended by section 1 of chapter 159, Laws of 1918 and section 1, chapter 213, Laws of 1922, to apportion the indebtedness represented by the judgment among the several counties in which the lands of the district were situated; and that such judgment be made a charge upon such lands. Appellants' petition was met by a demurrer by appellee, which demurrer was by the court sustained, and appellants' petition dismissed. From that decree appellants prosecute this appeal.
The Tallahatchie drainage district was organized under chapter 195, Laws of 1912, and the amendments thereto, which are embodied in chapter 269, Laws of 1914, chapter 159, Laws of 1918, and chapter 213, Laws of 1922. Commissioners were appointed for the district, and qualified and acted. A large amount of preliminary work was done by the commissioners and engineer, consisting of surveys and plans and specifications of the proposed drainage improvements. In connection therewith a considerable amount of personal property was acquired by the district. The sum total of these costs was large — part being the judgment involved in this cause. The commissioners assessed the benefits to the lands of the district, and gave notice to the landowners of the district of a hearing of the assessments. For reasons unnecessary to state, the assessments were withdrawn, and the proposed improvements in the district abandoned.
Section 4, chapter 195, Laws 1912, and the amendments thereto, being section 4 of chapter 269, Laws of 1914, section 1 of chapter 159, Laws of 1918, and section 1 of chapter 213, Laws of 1922, provide that in the event the assessment of benefits shall not be made, "or the improvements shall not be completed, or the same be abandoned, for any cause, after such indebtedness is incurred, the board of supervisors of the county in which the drainage district is located shall levy an acreage tax, or an ad valorem tax, on the lands in said proposed drainage district to pay such indebtedness. If an ad valorem tax be levied, the board of supervisors may use for that purpose the assessments of the land of the last assessment roll of the county in which said lands are situated; and in case the lands in the proposed district lie in more than one county, then the chancellor, aforesaid, shall apportion said indebtedness between the several counties, and the board of supervisors of the several counties shall thereupon levy such apportioned tax upon the lands of their counties respectively, according to the ruling of the said chancellor."
It will be observed that the statute provides for no notice to the landowners of the district of the hearing in the chancery court at which the indebtedness is apportioned between the counties, and made a charge on the lands of the district, to be collected either by an ad valorem tax or an acreage tax on the lands.
Appellee contends that, for that reason, the statute is violative of the due process clause of the Fourteenth Amendment to the Federal Constitution, and therefore is void and unenforceable.
The statute under which the Tallahatchie district was organized expressly declares that such a drainage district is a body politic; that it shall have a common seal, shall have power to make by-laws, rules, and regulations, and to alter and change the same, to contract and be contracted with, and to sue and be sued; and there is an express provision in the statute authorizing the drainage commissioners to incur, and to bind the district for, the preliminary expenses of surveys, plans, and specifications, regardless of whether the contemplated improvements in the district go forward or are abandoned. Under our laws drainage districts are public as well as private corporations. In addition to serving private gain, they are intended to promote the public health and convenience. Jones v. Belzoni Drainage District, 102 Miss. 796, 59 So. 921; Tallahatchie Drainage District v. Yocona-Tallahatchie Drainage District, 148 Miss. 182, 114 So. 264; Houck v. Little River Drainage District, 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266.
The commissioners of a drainage district, acting within the scope of their authority, are the representatives of the landowners of the district. They have the right to bind the landowners by their contracts. In that respect drainage districts are on the same footing as other political subdivisions of the state, such as counties and municipalities. A judgment against a county or a municipality affecting the general interest of its tax-payers is binding upon the latter, although they are not nominal parties to the suit. Every taxpayer, although not a nominal party, is a real party to such a judgment. Such actions are public, not private, suits. They are governed by a like principle to that which obtains in a taxpayer's suit against the governing board of a county or municipality, involving questions of general interest to taxpayers. A judgment in such a case is binding upon all taxpayers as fully as if they had been made actual parties. All taxpayers are affected with notice of the pendency of suits of that character — they are parties thereto, whether they would be or not. Applying those principles here, the judgment against the commissioners of the drainage district is res adjudicata against all the landowners of the district. Williams v. Board of Supervisors, De Soto County, 139 Miss. 78, 103 So. 812; Von Zondt v. Town of Braxton, 149 Miss. 461, 115 So. 557; Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 692; Ashton v. City of Rochester, 133 N.Y. 187, 30 N.E. 965-968, 31 N.E. 334, 28 Am. St. Rep. 619; Shanahan v. City of So. Omaha, 2 Neb. Unof. 466, 89 N.W. 285-288; Stone v. Winn, 165 Ky. 9, 176 S.W. 933-940; Eaton v. Board of Trustees School Dist., 184 N.C. 471, 114 S.E. 689; Mo. Pac. R. Co. v. Sears, 166 Ark. 104, 265 S.W. 653.
The statute provides that the boards of supervisors of the counties in which the drainage district is located shall either levy an ad valorem tax or an acreage tax on the lands of the proposed drainage district, to pay such indebtedness; and if an ad valorem tax is levied, the board of supervisors shall use for that purpose the last assessment roll of the county in which the lands are situated; and that the chancery court shall apportion the indebtedness between the counties, and the board of supervisors of the several counties shall thereupon levy the apportioned tax upon the lands of the counties respectively, according to the ruling of the chancery court.
The statute means that the chancery court shall make the apportionment of the indebtedness, and direct whether it shall be paid by an acreage tax on the lands of the district, or by an ad valorem tax. In the determination of this question the statute provides for no notice to the landowners. Does the failure to do so violate the due process clause of the Fourteenth Amendment to the Federal Constitution?
So far as the ad valorem taxes are concerned, we unhesitatingly answer that question in the negative. Due process has nothing whatever to do with the mere levy of ad valorem taxes. The ad valorem tax rate can be fixed by the proper authorities without notice to the taxpayers. Due process, however, comes into full force when property is valued as the basis for an ad valorem tax. Valuing and equalizing values of property as the basis for an ad valorem tax are in their nature judicial acts, and property owners cannot be bound by such values without notice and opportunity for a hearing.
The drainage statute involved furnishes such notice and opportunity of hearing, in this, it provides that if an ad valorem tax is levied to meet the indebtedness of the district, the last land assessment rolls of the counties in which the lands are situated are to be used. In other words, the land assessment rolls of the counties in which ad valorem taxes for state and county purposes are based are to be used. Under our statutes, the assessment of land values as represented by those rolls is made after due notice to, and an opportunity of hearing by, the landowners. No other notice is necessary, in order to furnish due process to the landowners of the district.
We do not decide the question whether notice to the landowners of the district would be necessary if an acreage tax were levied to meet the indebtedness. We have some doubt on that question, and therefore leave it undecided.
We think a reasonable and fair interpretation of the statute is that where an ad valorem tax is levied, the indebtedness is to be apportioned among the different counties in which the lands of the district are located, in the proportion that the assessed value of such lands in each county bears to the total assessed value of all the lands composing the district as shown by the current land assessment rolls of such counties. An ad valorem tax so levied would appear to be more just to the landowners than a flat acreage tax.
We find no merit in the other grounds upon which appellee argues that the judgment of the court should be sustained, and we do not think they are of sufficient seriousness to require a discussion by the court.
Reversed and remanded.