Opinion
March 14, 1949.
1. Drainage districts — lands benefited outside district — parties to petition to borrow money.
Where lands outside the boundaries of a drainage district are benefited by the use of the facilities furnished by the district, the owners of such lands must be made parties to a petition by the district for authority to borrow money to repair and preserve its system, and when in such case the petition is silent as to any outside lands, the owners of land within the district may raise the point and by showing the facts maintain the stated objection.
Headnote as approved by Alexander, J.
APPEAL from the chancery court of Sunflower County, J.L. WILLIAMS, Chancellor.
B.B. Allen, for appellants.
Section 4623 of the Mississippi Code of 1942 provides how landowners outside of district may use drains. Section 4624 provides that any such additional assessment made thereunder shall be "made in the same manner, under the same requirements, upon the same notice as is provided for making the original assessment".
It will therefore be seen that under 4623 above cited it becomes mandatory upon the Drainage Commissioners, where landowners outside the District are draining their water into the District, and benefiting by the work of the District, to bring them in under the machinery set out in said Section; it provides that those using the District "shall be deemed to have made a voluntary application to be included in such drainage district, and thereupon the commissioners shall make a complaint in writing, stating the description of such lands or lands benefited, the amount of benefits, and name of the owner or owners thereof, a description of the drains or ditches making connection with the ditches as near as may be, and file said complaint with the chancery court where said District was organized." It then proceeds to provide machinery to bring them in, which was not followed by the commissioners in the court below.
It cannot be denied by the commissioners that others outside the District, and adjacent thereto, are draining their lands into the District, and benefiting thereby, because in their petition they stated this to be a fact, and such admission becomes a part of the evidence in this case, binding upon the commissioners, and they cannot destroy the evidence by withdrawing, after such admission has been made. They had notice of it, and told the court they had notice, and they cannot "unnotify" themselves, and escape the mandatory requirement that they take the steps outlined in this section, and bring in these lands to be taxed, and required to meet their just portion of the taxes for the maintenance of the District, which benefits them equally along with appellants.
Section 4623 lays upon the appellees the obligation under the law, and under their bond, and under their oaths to perform, they cannot escape the performance of their duty in this case. We were entitled, as a matter of right, to exact this of them. Under their admission in their pleadings, and under the proof, shown in the record, they are bound to act. This case is in a court of equity, and they have invoked the jurisdiction of this court, coming in here subject to the rules of equity, and of law. This court, therefore, draws unto itself all of the rights, privileges, and obligations for the parties herein, and will require, by injunction or mandamus of the Board that they perform their duties under the law.
When it was brought to the attention of the lower court that there were absent from this lawsuit certain parties who under the rules of equity and law, and in order to preserve the rights and interests of the appellants, ought, in good conscience, to be before the court, it was the duty of the court to stop all proceedings until they were brought before the court, in order that the court might in one decree settle all of the matters in controversy.
That the court is invested with power to require the bringing in of those benefiting by a drainage district, and not paying any taxes thereon, and that it is the right and duty of the commissioners to bring them in, we cite the case of Self v. Indian Creek Drainage District No. 1, 128 So. 339.
We also invite the attention of this court to the case of Gillis, et al. v. Indian Creek Drainage District of Panola, Quitman, and Tunica Counties, reported in 134 So. 173.
We, therefore, conclude most respectfully, and insist that it is the mandatory duty of the commissioners, appellees here, to file a complaint in the chancery court, and get process according to law, as therein provided, on the owners of all lands adjacent to the district, who are draining into the district, and using its facilities and system for draining their lands, and who are not in the district, so as to bring them before the court in order that their lands may be assessed, and they required to pay their just portion of the taxes for the maintenance of the district. Appellees admit this is happening, — and yet refuse to comply with the law, so as to lighten the burden on the appellants who are now bearing the entire expense of the district. That the method by which the commissioners propose to do the work in this case is in violation of the law; that they are seeking to float bonds or certificates of indebtedness against the District for an amount in excess of the assessed benefits and betterments of the district by about $23,000.00 in violation of law; that there was absent from this hearing necessary parties that the lower court erred in refusing to permit us the right to show what outside lands were draining into the district, and what lands in the confines of the district were using the ditches to drain their lands, neither of which were paying any taxes thereon; that it is also in violation of Section 112 of the Constitution of the State of Mississippi, requiring that all lands in the District shall be assessed uniform and equal. One thousand acres of land within the confines of the District draining into the District are wholly untaxed, and about three thousand acres adjacent to the District have made themselves a part of the District by using the ditches, and are in fact a part of the District, and are not taxed. This being in violation of the constitution.
We submit, therefore, that to tax the lands of appellants for the benefit of the thousands of acres of lands which benefit by the District, and yet are escaping taxes is inherently unfair, and unjust, and that this cause should be reversed and remanded to the lower court, with direction to require the commissioners, appellees here, to take further and necessary steps to bring into the District and tax all of those lands enjoying the benefits of the District, and yet not taxed, so that they may be required to pay their just portion of the cost for the maintenance of a system that benefits them along with the lands of the appellants.
Neill, Clark Townsend, for appellee.
Appellee, the commissioners in the court below, proceeded to have made an additional levy under the section of the Code under Article 2, which provides for the operation of drainage districts with local commissioners, same being section 4713 of the Mississippi Code of 1942.
The court will note that Section 4623 of the Code of 1942, with reference to how land owners outside of the district may use the drains, and how a district may make additional assessments by extending the district and such assessments, is found in the Code under Article 1, which provides that such districts will operate with county commissioners, whereas appellee operates under Article 2, as aforesaid.
The court will observe that the commissioners in the court below attempted to and did have made an assessment only on the lands in the district that had theretofore been legally assessed with benefits. They made no attempt to make a new assessment or extend the benefits to additional lands, and, of course, they made no attempt to change the benefits which had theretofore been assessed, and which had long since become final. The commissioners, in this proceeding, never had any intention whatsoever at that time of trying to make any such assessments on land outside of the district which had not been theretofore legally assessed with benefits. The funds sought to be borrowed by the commissioners were for emergency purposes, to preserve and maintain the district as heretofore organized and as its lands have heretofore been assessed for benefits, and which such assessments have long since become final. The commissioners knew what the result would be in the way of prolonged litigation if they made any attempt to bring in other lands and assess them with benefits, or make a new assessment of benefits, regardless of the area that might be involved, and too, they knew the delay that would be incurred as a result of any such litigation that might follow.
The court knew and understood that the commissioners were attempting to have additional benefits assessed against those lands, and only those lands, which had theretofore been legally and specially assessed for benefits in the proper manner. Any such assessment had long since become final, and the proceeding would have been entirely different had the commissioners decided, in their discretion, to attempt to make an additional assessment by bringing in and assessing lands that had not been assessed with benefits theretofore in any manner.
The objections offered by appellants to the assessment levy appealed from are that the drainage commissioners should be prevented from proceeding to preserve and maintain their district, which was organized and is operating under Article 2 of said drainage laws, until they first go in a separate proceeding and attempt to have made special assessments against other lands alleged to be benefited by the ditches within the district, and have them legally assessed, and thereby the benefits extended entirely in another manner, under the provisions of Section 4623 of the Mississippi Code of 1942, which section is found under the aforesaid laws where the districts operate with county commissioners, under Article 1.
If the drainage commissioners in the court below were failing in the performance of their official duties by failing to file a suit to extend the benefits and assessments so as to cover and embrace additional lands in the district and not otherwise assessed for benefits, or in having made a new assessment within the district, the appellants had a plain and adequate remedy at law by writ of mandamus, in a separate proceeding, by which they could have required the commissioners to assemble and go into the matter of making additional assessments, or a new assessment. They had the right by mandamus to require the commissioners to meet and consider whether a levy of additional benefits was justified, or a new assessment within the district should be made, in a separate proceeding, although the judgment of the commissioners could not be controlled by mandamus. Anderson v. Robbins, (Miss.) (1931), 137 So. 476; and Anderson v. McKee, et al. (Miss.) (1938), 179 So. 858. It is highly important that appellee, the commissioners in the court below, should have been given discretion in their manner of operating, maintaining and preserving the district. Of course, their discretion in such matters, when exercised, is subject to review by the court, and we should keep in mind that the operation and preservation of such a drainage district is for the public benefit.
The public is interested in what the commissioners in the court below are trying to do. In this proceeding, the proof is uncontradicted to the effect that the drainage system in this district was in a terrible shape. The commissioners are most competent and have difficulty enough in getting finances in a limited manner to do the things required to maintain and preserve the district. No reasonable objection was offered to what they recommended in their discretion, supported by the testimony of a competent engineer, and that which the court approved in reviewing such. In recommending the levy in the court below, the commissioners exercised some discretion, with which they were clothed under the law, and in reviewing such the court below approved their action in that regard. It is admitted that all of the lateral ditches within the district drain into Moorhead Bayou, which Bayou runs from the Southeast to the North or Northwest, into Quiver River. The commissioners knew that the best way to drain the lands in the district and give their owners one hundred percent relief would be to clean out and make larger all of the lateral ditches and Moorhead Bayou, but, according to the uncontradicted proof of their competent engineer, the commissioners were of the opinion that the cost of such would be more than they wanted to recommend for the land owners to pay during the time when prices for such work were so high. The testimony of the engineer is at length, and to the effect that the manner of work proposed by the commissioners to be done is the next best thing, and that which will come nearer giving a measure of relief equally to all concerned, by reason of the premises. About the only testimony offered by appellants in objection to the work being proposed was the testimony of the layman witness, W.E. Hobbs, whose testimony was to the effect that he believed the commissioners should clean out the lateral ditches and Moorhead Bayou with the $26,000.00 proposed to be borrowed. The court heard the disputed testimony as to such facts, and, by reason of the proof offered on the part of the commissioners and the lack of sufficient proof in support of any valid objections on the part of appellants, the court below has made a finding of fact in favor of appellee, as to which it cannot be said that the chancellor was manifestly wrong.
If drainage commissioners such as appellee can be prevented and delayed in exercising their discretion and proceeding to maintain and preserve the district for the benefit of its land owners and the public, without sufficient valid reasons therefor, upon their said discretion being reviewed and approved by the court below, there is no chance for them to operate and exist for such purposes. In this case, one or more of the minority land owners in the district could object until assessments are made against additional lands outside of the district and not theretofore assessed for benefits, or until the commissioners could be required to make a new assessment against the lands within the district, and thereby, the commissioners might be delayed indefinitely in preserving and maintaining a district.
The Board of Commissioners of the Moorhead Drainage District filed their petition for authority to borrow the sum of $26,000 in order to repair and preserve the existing system. The petition exhibited a resolution of the board passed to this end. The original petition stated that there were "other lands not embraced within the said district but benefited by the improvements therein". Notice of such petition was published to "all persons owning lands in the Moorhead Drainage District of Sunflower County, Mississippi, and owning lands not embraced in said Drainage District but assessed for benefits, and all property owners and persons interested".
Objections by way of answer were filed by landowners in the district (some of whom later withdrew their objection), setting up that all interested persons were not made parties. Therein are listed considerable lands which are adjacent to the district whose owners are using the canals for drainage or are otherwise benefited thereby. It is argued that pursuant to this objection the language quoted from the petition was deleted in an effort to meet the grounds assigned. Regardless thereof, the deletion was made. The matter thereupon was presented to the court upon a motion to exclude the objections, which was sustained. This is the error here assigned.
Testimony was taken to support the petition, and although the motion to dismiss the answer has the effect of a demurrer in admitting the allegations therein, that testimony lent further support to the allegations of the objectors.
There is thus brought into play Code 1942, Section 4623, which is as follows:
"If the owner or owners of any lands, lying outside of a drainage district have made, or shall hereafter make connection with the main ditch or drain, or with any branch or lateral ditch or drain within the district; or if any such land is drained into the ditches and drains of a drainage district by ditches or drains constructed either before or after the organization of such drainage district and if in either case the lands outside of such drainage districts are benefited by the work done in such drainage district, the owner or owners shall be deemed to have made voluntary application to be included in such drainage district. And thereupon, the commissioners shall make a complaint in writing, stating the description of such land or lands benefited, the amount of benefits, the name of the owner or owners thereof, the description of the drain or ditch making connection with the ditches as near as may be, and file said complaint in the chancery court where said district was organized. And said court or chancellor in vacation shall fix a day, not less than twenty-five days from the filing of the petition, when it shall hear such complaint, and thereupon the clerk of said court shall give each of the landowners notice of said proceedings, by mailing each of them to their postoffice addresses, notice of said complaint, not less than ten days prior to the date for said hearing, or personal service may be served on each of them as provided in ordinary suits not less than five days prior to the date of the hearing. . . ."
Although the quoted section is part of the original drainage act providing for county commissioners (brought forward in Chapter 196, Laws of 1912), a similar provision dealing with districts under local commissioners, (Laws 1912, Chapter 195), as is the case here, is Section 4689 a relevant part of which is as follows:
". . . If the commissioners, at any time either before or after the organization of the district, find that other land, not embraced within the boundaries of the district, will be benefited by the proposed improvement or improvements already made, they shall assess the estimated benefit to such lands, and shall specially report to the chancery court, or chancellor in vacation the assessments which they have made on land beyond the boundaries of the district, as already established. It shall thereupon be the duty of the clerk of the chancery court to give notice by two weekly insertions in a newspaper published in the county where such lands lie, describing the additional lands which have been assessed; and the owner of real property so assessed shall be allowed not less than ten days after the last publication of such notice in which to file with the clerk of the chancery court their protest against being so assessed, or included within the district. . . ."
It is further provided by Section 4752, that "All of the provisions of the code chapter on drainage districts which are not contained in this article, and which do not conflict with any of the provisions of this article, shall apply to any districts organized or operating hereunder."
(Hn 1) It is seen, therefore, that the procedure for making parties those persons outside the district who are thereby benefited is not inconsistent, and that the court was in error in dismissing the objections in the face of their allegations.
The cause will be reversed and remanded so that proper interested persons may be made parties, and the merits of the petition thereupon heard.
Reversed and remanded.