Belzoni Drainage Commission v. Winn, 53 So. 778

Belzoni Drainage Commission v. Winn

53 So. 778 | Miss. | 1910

Mayes, C. J.,

delivered the opinion of the court.

This case involves the constitutionality of chapter 183 of the Laws of 1910. A statement of the case need not be here made, since it appears so clearly in the pleadings, and the case is here on bill and demurrer. The above act is a local and special drainage law, and created a drainage district known as the “Belzoni Drainage District,” applying to certain parts of the county of Washington. Osamus Winn, a resident and taxpayer in the drainage district created by the act, brings this. suit for the purpose of enjoining the enforcement of the act, alleging its' unconstitutionality in many respects, only one of which we notice. The bill filed by Winn was demurred to, and on the hearing the chancellor overruled *364the demurrer, and from this judgment of the court an appeal is prosecuted.

Section 1 of the above act creates the drainage district and fixes the boundaries. Section 2 provides that the object and purpose of creating the district is to provide adequate and effectual drainage by artificial drains, canals, ditches, or other drainage facilities, and to provide ways and means necessary to carry out same, etc. Section 7 of the act provides that the commission selected as provided by the act shall cause the chief engineer to make surveys of the entire territory in the drainage district, for the purpose of developing the topography of the land, and its facilities and possibilities for drainage, and the best method of effecting same by artificial canals and by shortening and improving all natural drains, etc. Section 8 provides that the chief engineer shall also develop, by the surveys, the natural drainage units in the drainage district, etc. Section 10 provides that after the survey has been made, together with report of estimate of cost by the chief engineer, etc., showing the main trunk drain or drains, and the natural drainage units in the district, fixing and defining boundaries, etc., the commission shall proceed to have the work done. Section 90, par. “q,” of the Constitution of the-state, provides that “the legislature shall not pass local, private or special laws in any of the following enumerated cases, hut such matters shall be provided for only by generals laws, viz., laws relating to stock laws, water courses, and fences.”

The question in this case is whether /or not this local act can be said to authorize the drainage commission to deal with water courses. In three different places in this act it authorizes the drainage commission to deal with “the natural drains,” “all natural drains;” and section 7 authorizes the survey for the purpose “of shortening and improving all natural drains,” thus giving effect to the declared purpose of section 2, providing *365for adequate and effectual drainage “by artificial drains, canals, ditches, etc., or other drainage facilities,” meaning, of course, “all natural drains.” The act is incomplete, and no feature of it can be enforced successfully, unless the drainage commission has the right to deal with and improve the natural drains in the district. The whole purpose of the act depends upon this, and if this feature of the act conflicts with the Constitution the whole act must fail, since without this power it is inseparable from the other provisions and wholly ineffective. In other words, the power to deal with natural drains is the warp and woof of the whole act, upon which all else- depends. Webster’s International Dictionary defines a “drain” to be a water course. Indeed, in the definition of the word there could be no other practical comprehension of it. A “natural drain” can be nothing else but a natural water course. Every creek, stream, brook, or river is included within the term “natural drain.” In volume 10, Ency. Law, it is said: “The term ‘drain’ has no technical- or exact meaning. As generally understood, it means any artificial channel, or drainage, for the removal of water, etc.” The section of the Constitution in question has no application to local laws providing for artificial drains; but the act precludes the idea that it should operate only on artificial drains, since it provides for the changing of “all natural drains,” all natural water courses. In 14 Cyc. of Law, p. 1023, “drain” is again defined to be an artificial channel, or trench, etc.

What is a water course? In the case of Ferris v. Wellborn, 64 Miss. 29, 8 South. 165, Judge Campbell, for the court, settled the law of this state as to this question. On page 34 of 64 Miss., page 165 of 8 South., in the above case, speaking for the court, he says: ‘ ‘ The proof is that Prairie creek is a natural channel, one-half or three-fourths of a mile long, with defined bed and banks, of varying width and depth, through which water *366is conveyed and discharged into the low land adjacent to Plum creek. It is undoubtedly a water course whenever there is water to run in it, and the fact that it is most of the time dry or not running is not enough to deprive it of the character of a water course, with its incidents, among which, is the right of the riparian owner to have it remain as nature made it as a drain for the adjacent land.” This case was cited with approval in the case of Rait v. Turner, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157. The question of what constitutes a water course has been a perplexing one for the courts, and there is a varying line of decisions on this subject. It is not our purpose to attempt any reconciliation of the authorities. Under every decision and under every definition, “all natural drains” must be held to include natural water courses, as well as swales or ravines which might not be held to be water courses. This act of the legislature violates paragraph “q” of section 90, and is void.

The appellee is a taxpayer in the district created by it, and, unless enforcement of the act is prohibited, he will be compelled to pay out money under a void law, and, of course, he can maintain this suit.

Affirmed and remanded.