Opinion
June 13, 1949.
1. Drainage districts — subdrainage districts — expenditures on parent district.
When a subdrainage district has been created out of lands wholly within the parent district, its funds cannot be expended for improving the condition of the existing canals of the parent district and the cost of such inprovements may not be taken into account by the commissioners of the subdistrict in ascertaining the amount for which its bonds may be issued.
Headnote as approved by Roberds, J.
APPEAL from the chancery court of Prentiss County, W.H. INZER, Chancellor.
Brown Ellege, for appellants.
It cannot be imputed to the legislature that it intended to establish a main drainage district with local commissioners in charge of its drainage system and charged with its maintenance, and then set up one or more subdistricts inside the main district each with local commissioners in charge of the main drainage system and charged with its maintenance, without making some provision for conflicting jurisdiction, and it has made no such provision.
Continuing with the third paragraph of Section 4737 " — and the proceedings thereafter shall conform in all respects to the provisions of this article relating to the drainage district", obviously the main or parent district. The third paragraph then authorized the issuance of the bonds of the subdistrict and continues " — and the proceeds of the sale, or money obtained on the bonds of any subdistrict shall be used and applied exclusively to the work of constructing and maintaining the internal drains of said subdistrict in the carrying out and perfecting its internal drains. Separate accounts shall be kept by the treasurer and depositories of said commission with each subdrainage district, so that there can be seen at all times the exact financial condition of each subdistrict, both as to its receipts and disbursements". Thus under a proper construction of this section one or more subdistricts — as many as may be necessary depending upon the size and area of the main district — may be established within a main district for the construction of internal drains; the commissioners of the main district (who are clearly brought in for the survey, estimates, and location of ditches, and who were so brought in in the case at bar), become commissioners of each subdistrict; negotiate its bonds; expend the proceeds upon its internal drains exclusively; and keep separate accounts with each subdistrict. Drainage district laws are to be given liberal interpretation to promote reclamation. Section 4728, Code 1942. This mandate comprehends also that such laws shall be given a practical interpretation. We submit that it would be more practical to back up in this proceeding; appoint the commissioners of the main district as commissioners of the subdistrict and give them the go ahead signal but with the caution that the funds of the subdistrict may only be used for internal drains and that the repair of the basic system of canals shall be paid for only with the funds of the main district, thus assuring that each land owner pays his proportionate share of costs, and assuring ultimately a complete reclamation of all overflowed lands in the main district as well as in each subdistrict.
This brings us to the assessment against which these appellants complain. The dominate factor in the assessment is benefits alleged to flow from work which the subdistrict may not lawfully engage in. The assessment should be recast upon factors comprehending benefits to flow from the construction of internal drains of local benefit to the land owner in the subdistrict. These appellants insist that if the basic canals are to be reconstructed, all the lands in the main district should bear a proportionate share of the cost. If not, and if the basic system of canals is to be reconstructed at their cost to the exclusion of land owners in the main district but outside the subdistrict, they will pay more than their proportionate part of the costs and therein lies their injury and damage by the decree appealed from.
We now refer to Watson v. Beaver Dam Drainage Dist., decided March 14, 1949, and reported in 39 So.2d 309; and Hobbs et al. v. Moorhead Drainage District, decided March 14, 1949, and reported in 39 So.2d 307.
It appears from the Watson case that Beaver Dam Drainage District was a local commissioner district the same as the main district and the subdistrict involved in the case before the court. The Beaver Dam commissioners sought to rework the canals of that district and sought authority to incur an indebtedness therefor and tax the lands in the district to pay such indebtedness. It appears that there were lands outside of the district which had been, and were then being, benefited by the drainage system, but owners of such lands had not been given notice and did not appear. The hearing was had as though no such outside benefited lands existed. The proceeding was objected to on the ground that there were benefited lands which would not bear their proportionate share of the taxes. Proof thereof was offered and rejected. On the basis of the somewhat similar Hobbs case the order of the lower court dismissing the objections was reversed and the case remanded.
In the case at bar, there does not seem to be a specific allegation in the petition of the commissioners respecting benefited lands outside of the subdistrict, nor does it clearly appear from the objections that such a situation exists. However, at the hearing there was considerable testimony respecting that part of the main district which had been gerrymandered out of the formation of the subdistrict. Certainly those lands in the south and of the district, approximately 1000 acres, will be benefited and should bear their proportionate part of the cost of any rehabilitation of the basic canal system. This principle of right and justice appears to have been applied in the Watson case and the Hobbs case, and on the basis of those cases and on the basis of principle and justice, should be applied in the case at bar.
J.S. Finch, and Cunningham Cunningham, for appellee.
We urge that appellants are in error in their construction of the part of the last paragraph of Section 4737 which refers to internal drains. The contention of appellants is that the words "internal drains" means only new ditches cut by the sub-district and does not apply to any drainage ditch or canal cut by the main district prior to the organization of the sub-drainage district. That portion of the statute applicable reads as follows: "The bonds of any sub-district shall be used and applied exclusively to the work of constructing and maintaining the internal drains of said subdistrict in the carrying out and perfecting its internal drains."
We do not find where our Supreme Court has construed the word "internal" in connection with drains, but by reference to Webster's Dictionary we find the word "internal" to mean "being within any limit or surface", or "situated within", or "within".
The Legislature must have had in its mind by the phrase "internal drains" that it was to be limited strictly to its boundaries. The parent district by Section 4712, Code of 1942, is vested with powers to go outside of their district for certain improvements, both for the construction of ditches and for the assessment of benefits. The Legislature evidently meant that the sub-district should be wholly limited to improvements within its boundaries.
Learned counsel undertake to say that the chancellor invades the parent district's jurisdiction by allowing the subdistrict to clean out drains. No more jurisdiction could be involved in the drain than in the territory and by that process of reasoning no subdistrict could exist.
We, therefore, urge that the lawmakers clearly intend to make the funds available for use on all drains of the subdrainage district being within the boundaries of the subdrainage district, provided it was deemed necessary to construct or maintain such internal drains.
We do not deem it necessary to argue the method of making the assessment for benefits for the record shows that these commissioners were thoroughly familiar with all of the lands within the subdrainage district, had been over all of the lands many many times and had all the information available to them with reference to the various tracts assessed, at the time of making the assessment, especially in view of the fact that counsel for appellants say their only contention is that the assessment is wrong for the reason the sub district does not inherit the properties and functions of the main district of which it is a part, and subdistrict funds cannot be expended lawfully upon the basic canal system of the main district.
To support their contention counsel for appellants cite the following: Hobbs, et al v. Moorhead Drainage District, 39 So.2d 307; Watson, et al v. Beaver Dam Drainage District, 39 So.2d 309.
Neither of these cases is authority directly or indirectly on the issue here presented. The Hobbs case was reversed because certain parties outside of the district, whose lands benefited from the canals to be constructed or maintained, were not made parties to the petition when both the original petition and the answer thereto stated that there were other lands not embraced within the district but benefited by the improvements therein.
The Watson case was controlled by the opinion in the Hobbs case. In the case at bar no such issue was presented by objectors and no such pleadings are on record in this proceeding.
The policy and purpose of drainage statutes is reclamation of overflowed and non-productive or insanitary lands. Buchanan v. Red Banks Creek Drainage District, 39 So.2d 321.
The landowners in about three-fifths of this fertile agricultural valley, faced with the forced plight of abandoning these fine fertile lands, did everything within their power to obtain drainage through the main district, but their efforts were broken by the combined opposition of the objectors in this case with that of the landowners in the southern part of the original district. In a final desperate effort these landowners petitioned the court and created this subdrainage district with the view of reclaiming their overflowed lands. Appellants, who teamed up with the southern part of this original district to successfully block further improvements in the main district, now contend that all of the main district should help pay for the work on the three canals originally cut by the main district and now practically destroyed for lack of maintenance.
We earnestly insist that a liberal construction of this drainage statute such as provided by Section 4728 will not permit a continued destruction of these valuable farming lands under the erroneous concept that funds of a sub drainage district cannot be used to reclaim fertile lands by spending a portion of the funds overhauling and reworking some of the old ditches and canals that might happen to be within its boundaries in such a way as to make it profitable to rework and use them for further and better drainage.
Brown's Creek Drainage District No. 2 was created and organized in 1919. It embraces territory lying within Prentiss and Itawamba Counties, Mississippi. The area is approximately a mile wide and five or six miles long. The benefited lands, as found by the Commissioners, consisted of 3003.4 acres. The principal, if not the only, improvement made in the district was the construction of three main canals, known as the Big Brown, Little Brown and West Little Brown. In 1947 proceedings were instituted in the Chancery Court to raise additional money to be used mainly in cleaning out, enlarging, and doing other incidental work upon said three canals. Many of the landowners of the district protested this expenditure and the additional levy of taxes therefor, and the court, by decree dated February 3, 1948, refused to approve it. The matter was then dropped.
In September, 1948, the present petition was filed to create a sub-district known as Brown's Creek Sub-drainage District No. 1. The sub-district embraces lands lying entirely within, but not coextensive with, the boundaries of the original district. The territory covered by the boundaries of the old district on the east and west thereof is wider than that included within such boundaries of the sub-district and the south boundary of the sub-district lacks some two miles of extending as far south as the south boundary of the old district. The benefited area in the sub-district is stated to be 1858 acres in the uniform amount of $30.00 per acre, aggregating a total benefit of $55,763.00. The required expenditure necessary to make the proposed improvements, according to the estimate of the engineer and commissioners, is $36,305.87.
Certain landowners in the sub-district protested its creation, the issuance of bonds and levy of taxes, which protest was overruled by the Chancellor. He entered a decree creating the sub-district, appointing commissioners thereof, and authorized the issuance and sale of bonds, the levy of taxes, the performance of the proposed work and payment therefor out of the funds to be so raised, from which action this appeal is taken.
It is disclosed that of the said sum of $36,305.87, expected to be raised by issuance and sale of bonds of the sub-district, to be paid by yearly levy of taxes against the lands of the district, it is the intention to expend approximately $10,000 in the construction of a new canal, and to use the balance thereof in clearing, cleaning out, excavating, and improving the condition of the three existing canals which were constructed with funds of the original district, but all new work to be within the sub-district. In other words, about two-thirds of the funds of the sub-district are to be expended upon the canals of the parent district. The sole question raised on this appeal is whether the funds of the sub-district can be so used. We do not think so for these, and other unstated, reasons:
The wording of Section 4737, Code 1942, authorizing the formation of sub-drainage districts and defining the duties and powers of the commissioners thereof, negatives that conclusion. That Section directs the commissioners to ascertain the limits of the benefited area of the sub-district and to make ". . . suggestions as to the size of the drainage ditches and their location," and the latter part of said section provides that the funds of the sub-district ". . . shall be used and applied exclusively to the work of constructing and maintaining the internal drains of said subdistrict and in the carrying out and perfecting its internal drains." The quoted phrases do not contemplate, or authorize, the use of the funds of the sub-district in cleaning out, enlarging and improving the existing canals constructed by the parent district.
Furthermore, the existing canals, constructed by the original district, belong to that district. It has such title, or property interest, in the ditches, culverts, rights of way, etc., as may be essential to performance of the functions of the district. It may own equipment and machinery which is used for that purpose. It is the owner of the funds of the district. It has its own obligations. Now, the sub-district does not inherit the property, nor the obligations, of the parent district. The sub-district has no right, or power, to change, alter or interfere with the canals constructed with funds of the original district. It is not an answer to say that in this case the parent district might give its assent. That may be true in this case, but it would not be true in many other cases.
Again, the law provides for, and requires, separate commissioners for each district. The commissioners of the original district have functioned since its creation. Bonds have been issued, obligations incurred, taxes levied, work done, and money expended. Now, if the sub-district has jurisdiction over, and power to alter or change, the drainage system constructed by the original district, manage and handle its property, then there must needs be endless conflict of authority and confusion in performance of duties. For instance, suppose the sub-district spends its funds on the three existing canals, which set of commissioners will have authority and power over them? Who has authority to say when and where they are to be enlarged, cleaned out, altered or changed? In case of diversity of opinion as to the advisability, or feasibility, of the work, alteration or change, who has the final authority? The statutes require separate and independent commissioners. Each district is a separate, corporate entity.
And lastly, to permit the expenditure of the funds of the sub-district upon the old canals, to be raised by taxes levied only upon the lands within that district, would be unjust to the landowners of the sub-district. In this case, for instance, the recent attempt to raise funds in the old district and levy taxes against the lands therein, to improve the old canals, was defeated. The present proceeding is an effort to have the sub-district do for the original district what the landowners of the original district would not do for themselves. Much of the land of the parent district lies without the sub-district. These outside landowners will pay no tax for the proposed improvements. Two-thirds of the money is to be spent upon canals of the old district, and all of the work, including the proposed new canal, will supposedly inure to the benefit of all of the landowners of the original district, a large part of whom will be paying no tax whatever.
There was no error in creating the sub-district and appointment of the commissioners thereof, but its funds cannot be used upon the canals of the parent district. Therefore, the method of ascertainment by the commissioners of the amount of money necessary to be expended by the sub-district and of the benefits and detriments to the landowners thereof was not based upon the proper factors.
Affirmed in part and reversed in part and remanded.