55 So. 963 | Miss. | 1911
delivered the opinion of the court.
There is involved in this case the constitutionality of section 1721, chapter 39 (“Chancery Court Drainage
In Seal v. Donnelly, 60 Miss. 659, the court held that the right to deal with roads, ferries, and bridges could not be taken away from the board of supervisors and confided in another magistracy, but that the mode and manner of the exercise of such right could be regulated by the legislature. Is section 1721 a mere regulation of the manner of the exercise of this constitutional power conferred on the board of supervisors, or does it amount to a deprivation or abridgment of such power? If the latter, the statute is unconstitutional; if the former, it is valid. The statute expressly confers, in clear and unmistakable terms power on the drainage commissioners to determine to ■ what extent, if any, the public roads traversing the drainage district are benefited by the system of drains, and to assess such roads with such amounts as they may deem they are so benefited, which is made a charge on all the taxpayers of the county. The assessment of such benefits is not made subject to the approval of the board of supervisors. By the statute the supervisors are deprived of all power whatever to determine whether such roads are benefited, and, if so,
However, neither the remainder of this section nor the other provisions of chapter 39 are affected by the unconstitutionality of the provision under consideration. The invalid portion of the statute is clearly separable from the balance, and there is left a consistent drainage scheme, which doubtless the legislature would have adopted, had it known it was without power to pass this provision here condemned as unconstitutional.
Reversed and remanded.