Wolford v. Williams

70 So. 823 | Miss. | 1915

Potter, J.,

delivered the opinion of the court.

(After stating the facts as above.) It will be noted that the original petition to the board of supervisors for the establishment of the proposed Topashaw swamp land district in Calhoun county was filed on the 3d day of January, 1912, under section 371, Code 1906. The requirements of this section were all complied with when the petition was filed. After the petition was filed, but before-the organization of the district had been completed, the legislature passed an act amending section 371 of the Code of 1906. This act was passed March 16, 1912 (T nws 1912, p. 284). It is contended by the appellant that this hct was intended as a substitute for section 371 of the Code, and that for all purposes section 371 was repealed. And it is contended that when the act of March 16, 1912, became a law, the board of supervisors should have disregarded all the proceedings had up until that time; that the persons desiring to create. the district should have started anew; that the board could declare a district established, acting under the provisions .of section 374 only when it should appear that all the provisions of the preceding section as they existed at tñe time the district was to be established had been complied with. In our opinion, however, the jurisdiction having already attached before the section of the Code was amended was not divested by the amendment of the section.

“Where one or more sections of a statute are amended in the mode prescribed by the Constitution, the amended sections cease to exist, and the sections as amended are, in effect, incorporated into the original act; but where the new law is a substantial re-enactment of the old, merely changing modes of precedure, but not changing the tribunal or the basis of the right, and where it takes effect simultaneously with the repeal of the old, it must be presumed, even without an express saving clause, that the legislature intended that proceedings instituted under the old law should be carried to completion under the new.” Mayne v. Board of Com’rs of Huntington County, 123 Ind. 132, 24 N. E. 80.

Being in court, it was the duty of the complainants in this case to come before the board of supervisors and object to such steps as they believed were unlawful; and if such proceedings were not regular, and orders were made by the .board of supervisors in furtherance of the purposes of this drainage district which they believed to be irregular, the right of appeal to the circuit court from such order was granted them by statute.

Before the bonds were actually issued and sold, it appears that every landowner was cited to appear to make objections to any and all irregularities that might have existed in any of the previous proceedings of the board, and in that notice all persons in the district were actually notified in compliance with all the provisions of the amended statute. It further appears that, at a regular time named in the notice, the board proposed to reissue tfie bonds in question. Tbe majority of tbe complainants, if not all of them, appeared at this meeting and protested against the action of the board; and time was granted them within which to file a bill of exceptions and appeal to the circuit court.

This idea was abandoned, and an injunction was sought restraining the collection of taxes in lieu thereof. In our opinion, the action of the chancellor in sustaining the demurrer to complainants’ bill for injunction was correct. At the most, the proceedings of the board of supervisors, after the passage of the am'endatory act of 1912, were irregular, and the complainants and all‘other persons owning property in the district were parties thereto, and, if they desired to challenge the correctness and regularity of the board of supervisors, they ought to have pursued the remedy provided for them by statute. The action of the board of supervisors was not subject to collateral attack.

The decree of the chancellor is affirmed.

Affirmed.