Huston v. Mayo, 82 So. 334

Huston v. Mayo

82 So. 334 | Miss. | 1919

Smith, C. J.,

delivered the opinion of the court.

The Luneluah drainage district was created under the provisions of chapter 269,. Laws of 1914 (section 4434 *533et seq. of 2 Hemingway’s Code), and the commissioners thereof were proceeding to issue and-sell its negotiable bonds under the provisions of section 15, chapter 269, Laws of 1914 (2 Hemingway’s Code, section 4459) in order to obtain money with which to defray the expenses necessary to he incurred in providing the. drainage for the district, when the appellant exhibited his bill against them in the court below praying that they he enjoined from so doing “without first submitting the question of a bond- issue to the- qualified electors of the district.” On final hearing the bill was dismissed.

The statute invoked by the appellant in support of his contention is section 2, chapter 209, Laws of 1918, which provides:

“That no interest-bearing debt, except as provided in section 1 of this act shall be incurred in any county, municipality or other taxing district, unless authorized by a majority of the electors who shall vote in an election called for that purpose; but shall not prevent either a municipality or a county, from borrowing money in anticipation of taxes, as now provided by law.”

Section 7, chapter 269, Laws of 1914 (2 Hemingway’s Code, section 4445) provides that the commissioners of a drainage district created under the statute here in question shall assess the benefits to accrue to each tract of land embraced therein.

Section 9, chapter 269, Laws of 1914 (2 Hemingway’s Code, section 4450), provides:

‘ ‘ That the board of supervisors shall at the same time that the assessment of benefits is filed or at any subsequent time, when called, upon by the board of com-mssioners of the ^district so to do, enter upon its minutes an order which shall havé all the force of a judgment providing that there shall be assessed upon the real property of the district a special assessment, or levy, to pay the estimated cost of the improvement, with not less than 10 per cent, (ten per cent.) “added for un*534foreseen contingencies, the amount to he assessed upon each tract of land included within the district shall he such part of the estimated cost of the improvement as the assessment of benefits against such tract hears to the assessment of benefits against all the real property in the • district, and which said assessments are to be paid in annual'installments, not to exceed ten per cent. (Í0 per cent.) in any one year, as provided in such order, hut if any landowner, elects he may pay the whole amount of the assessment against his land before it becomes due, or at any time thereafter, or all or any part of said assessment at any time he sees fit, provided such payment is made before any bonds are issued by the district.

The assessment or assessments so levied shall be a lien on alLof the real property of the district from the time that the same is levied by the board of supervisors in an amount not to exceed the total amount of estimated benefits on' all real property in the district, and shall he entitled to preference to all demands, executions, in-cumbrances or liens whatsoever, and shall continue until such assessment, with any penalty and costs that may, accrue thereon, shall have been paid. . . . ”

Section 15, chapter 269, Laws of 1914 (2 Hemingway’s Code, section 4459) provides:

“That for the purpose of constructing and maintaining the. ditches and other improvements, provided for under this act, and for carrying out the purposes and provisions of this act, and for paying for the work incident thereto, the said board of commissioners shall have power to borrow money at a rate of interest not exceeding six per cent. (6 per cent.) per annum to issue its negotiable evidence of indebtedness, or serial bonds, therefore, not exceeding in amount the total amount of benefits assessed against all the real property in the district, such bonds to he in such sums and denominations, of not less than one hundred dollars each. *535as the said board of commissioners may prescribe; . but no bond issued under the terms of this act shall run for more than thirty years, and may be made to mature serially in such 'numbers as the board may elect, so that a portion thereof may mature each year as the assessments are collected,” etc.

The money to be collected from the landowners in a' drainage district created under a statute like the one here in question for the purpose- of paying the expense of creating and maintaining the district is a local assessment and not a tax within the meaning of our Constitution and statutes. Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; Daily v. Swope, 47 Miss. 369; Insurance Agency v. Cole, 87 Miss. 637, 40 So. 228; Vasser v. George, 47 Miss. 713; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Alcorn v. Hamer, 38 Miss. 653; Jones v. Drainage District, 102 Miss. 796, 59 So. 921; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Nugent v. Jackson, 72 Miss. 1040, 18 So. 493; Locke v. Dantzler Lumber Co., 81 So. 175.

Consequently a drainage district so created is not a taxing district within the meaning of section 2, chapter 209, Laws of 1918. To hold otherwise would, not only conflict with all of the former decisions of this court in cognate matters, but would reduce the statute under which this district was created to an absurdity, and also defeat its manifest purpose that the creation of a drainage district and the incurring of the financial obligations resulting therefrom shall be determined, not by the electors thereof as such, who unless they own land therein can have no interest in matter, but by the landowners, who alone will be benefited or injured thereby.

Affirmed.