Prather v. Googe

67 So. 156, 108 Miss. 670

• Court: Mississippi Supreme Court
• Decided: October 15, 1914
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

Appellant, a taxpayer, filed his bill of complaint against the board of supervisors, the sheriff and tax collector, and the road commissioners of road district No. 1 for the third supervisors’ district of Prentiss county.

The purpose of the litigation is to test the validity of chapter 176, Laws of 1914, entitled:

“An act to amend chapter 145, of the Laws of 1912 entitled “An act to amend chapter 149, Acts of 1910, entitled “An act to authorize the board of supervisors to construct and maintain the public roads in one or more supervisors’ districts of the various counties of the state, to issue bonds and levy taxes for that purpose; and providing for the manner in which the said roads shall be constructed and maintained; ana 'how bonds shall be issued and taxes levied for that purpose,” so as to provide that the board of supervisors of any county in which one or.more supervisors’ districts, or parts of districts, which have or may come under the operation of said chapter 149 , of the Acts of 1910, may elect, by an order on its minutes to that effect, to work all of the public roads in such district or districts, or parts of districts, by contract, and to provide the manner in which the same shall be done,’ so as to provide for maintenance and upkeep of roads by other methods than by contract,” etc.

The bill sets out, in detail the proceedings leading up to the establishment or creation of the road district in question, and it appears that the procedure was in strict compliance with the provisions o'f chapter 176, Laws of 1914, and that the district is composed of certain described lands in the third'supervisors’ district of Prentiss county, but does not embrace the entire district. The area embraced in and composing the proposed district is less than the area of the supervisors’ district.

The prayer of the bill is as follows:

“The premises considered, complainant prays that he be granted your most gracious writ of injunction to restrain and enjoin said sheriff and tax collector of Prentiss county, and said board of supervisors, and the said road commissioners of said district No. 1 of the third supervisors’ district of Prentiss county, from imposing or collecting said road tax on his property in said proposed road district and that the said sheriff and' tax collector, and the said board of supervisors and the said road commissioners be made parties defendant to this bill by fit and apt process, returnable to the next term thereof, and that on final hearing said injunction shall be made perpetual, and for such other, further, and different relief as to the court may seem meet and proper, and as in duty bound will ever pray.”

The grounds for relief are thus stated in the bill of complaint, viz.:

“He assigns now the following special objections, as well as those appearing on the face of the proceedings, and papers against the organization and creation of said road district, the levy and assessment and proposed-collection of said tax, to-wit:

“First. Said chapter. 176, Honse Bill No. 750, attempting to authorize the creation of road district of part of supervisors’ districts, is unconstitutional and void.

“Second. The said act, chapter 176, House Bill No. 750, Laws of 1914, p. 244, does not authorize the creation and organization of a road district less than one supervisors’ district.

“Third. The third section of said act, chapter 176, wherein the board of supervisors are authorized to issue the bonds, only authorizes the board of supervisors to issue bonds of a supervisors’ district, or districts, and does not authorize the issuance of bonds on parts of a district, or districts. The said act, chapter 176 was an act amendatory of the Laws of 1910, known as chapter 149, and whereas sections 1 and 2- of said act authorized, or attempted to authorize, the board of supervisors to create districts smaller than one supervisors’ district, being in that respect amendatory of the former law, yet in carrying this forward in section 3 of said act, it directed that the levy should be made upon the supervisors’ district, or districts, thus levying the tax on the whole of a district for the benefit of a part only. Said act, chapter 176, is impractical and impossible in so far as it attempts to create a smaller district than one supervisors’ district, and is for that reason void.

“Fourth. If the legislature intended to authorize the creation of á road district as small as this proposed district, the act does not clearly express the legislative intent, and is so vague and. indefinite as not to be capable of enforcement.

■ “Fifth. Said act is impractical of enforcement and will work irremediable injury and damage, in that it proposes to create districts smaller than a supervisors' district into road districts without providing any practical means for ascertaining whether or not the residents of said proposed district shall be provided with proper voting precints in the proposed district to express their views for or against the issuance of bonds. Said act in no part of it requiring that the said proposed road district shall conform to the already laid out precinct voting places, so the said chapter 176, Acts of 1914, is impractical of administration, and no proper method is provided for ascertaining the correct expression of the qualified voters in said proposed road district.

“Sixth. Said act, chapter 176, contravenes the general policy of our- state in the creation of taxing districts, in that qualified electors, regardless of ownership of property, participate in the election, and thus there may be property owners in said district, who, under the provisions of said act, will be taxed without giving them the opportunity to express their preference for or against said bonds.

“Seventh. Said chapter 176, in its effort to amend the laws of 1912, is so cumbersomely worded as to fail entirely to convey the legislative intent, and throughout it fails to give complete efficacy to the amendment proposed in sections 1 and 2, where it attempts to broaden the act, so as to make it include less than one supervisors’ district, -and leaves the law in such a state of doubt and uncertainty that no bond issue under it can be sold and would not be valid or binding.

“Eighth.- Said act, chapter 176, in section 11 thereof, attempts to provide a means of preventing property owners in districts from pa3ring a double tax by being put into two or more road districts, but provides no practical means for carrying out this proposed idea, and thus leaves the law in confusion and uncertainty.

• “Ninth. No practical method of assessment and administration of the funds is provided for in said act, and hence there will be interminable confusion in an attempt to administer .the law under this act.

“Tenth. The legislature, of the state, in passing so many road laws, especially chapter # 173 of the Acts of 1914, 174, 175', 176, 177, and 178, have left the road laws of the state in such hopeless confusion and conflict as to be hopelessly irreconcilable and nobody can determine what the law is.

“Eleventh. Chapters 173 and 176 contemplate an entirely different and independent and contrary scheme for road building and maintenance, and for issuance' of bonds, and are so irreconcilable in their terms and provisions and general scheme and plan as to make it impossible to determine which is effective and in operation, and which is void; the one assessing and laying a regular ad valorem, tax and the other a benefit tax. There is no satisfactory provision of law preventing the enforcement of these two antagonistic schemes in the same territory, or supervisors’ districts, or counties, or parts of districts or county.

“Twelth. The attempt to create .districts smaller than one supervisors’ district would allow such districts to be organized and created with an irregular perimeter, and thus the sheriff and tax collector and the board of supervisors would not know how to separate the funds from other funds, and it would be impossible, or impractical, for the assessor to assess such districts, and for the collector to collect the taxes in such districts, and for the board of supervisors to administer the funds of said district.

“Thirteenth. Section 3 of the act, chapter 176, is in real and apparent conflict with sections 1 and 2 of the act.

“Fourteenth'. Under chapter 176, the effort to tax the small districts and issue the bonds of small districts, violates the due process clause of the federal constitution, in that no proper method is provided for ascertaining the will of the majority of qualified voters, or property owners, in that nonresident property owners of such districts are allowed no participation in the election or petition, although they may be large taxpayers in the district.

“Fifteenth. Said act of 1914, chapter 176, attempts to create territory not theretofore defined into something of a corporate character, but it is not clear and satisfactory what is intended, or what is created into such' corporate character, whether it is a taxing district merely, or a corporation with corporate functions and taxing power.

‘ ‘ Sixteenth. The attempt to create a part of a supervisors’ district into a taxing district, or into a district having taxing power, is not clearly and definitely expressed, and such part of a supervisors’ district is not by such act created into a separate taxing district, nor into a district having separate taxing powers.

“Seventeenth. The whole subject of road legislation in Mississippi is so hopelessly entangled that it cannot be straightened out without an entire revision and reenactment of the road laws by the legislature.”

The demurrer to this bill was sustained.

Chapter 176, Laws 1914, is an amendment to chapter 145, Laws 1912, which last-named chapter was an amendment of chapter 149, Laws of 1910'.

"We here copy section 1 of chapter 176, Laws of 1914 (the law under review), and the amending words appear in capital letters, viz.:

“Be it enacted by the legislature of the state of Mississippi, that the board of supervisors of any county in this state are hereby authorized and empowered to construct, or construct and maintain or maintain one or more highways for convenience of the traveling public by contracts in one or more supervisors’ districts of said county, or part of one supervisors’ district, or two or more or parts of two or more supervisors’ districts in such county, and for that purpose are authorized to issue and sell bonds and to levy and to collect taxes to pay such bonds and to maintain such roads so constructed in the manner herein provided.”

Section 3 of this act is as follows:

£ £ That the returns of such election shall be canvassed by the election commissioners of the county, and the result certified by the commissioners to the board of supervisors, at their next regular meeting; and should the result of such election show that it has carried in favor of the issuance of bonds by a majority vote of those participating therein, or if there be no election,, then it shall be the duty of the board of supervisors to’ issue the bonds of such supervisors’ district or districts,, in any amount not to exceed ten per centum of the assessed value of all the taxable property of such district, or districts, the amount within this limit to be fixed by the commissioners hereinafter provided for, subject to the approval of the board of supervisors, and such bonds to be issued and sold either all at one time or in installments from time to time as funds are needed for the construction of such highway or highways, in the discretion of such commissioners and the board of supervisors.”

It will be observed that section 1 authorizes and empowers boards of supervisors of any county ££to construct, or construct and maintain, or maintain one or more highways .... by contracts in one or more supervisors’ districts .... or part of one supervisors’ district. ’ ’

There seems to be no doubt that the power is given to establish the district in question — to construct and maintain the road which is the subject of this controversy — and we do not understand that appellant seriously contests the grant of power, but does insist: that section 3 of the act does not authorize the issuance of the bonds of a road district,, embracing less than a supervisors’ district.

It seems to us that the real controversy is narrowed and confined to the issuance of bonds for the proposed district and the levy of taxes on the lands embraced therein to liquidate the bonds. In other words, conceding the power to organize a road district embracing an area less than a supervisors’ district, is the power to issue bonds and collect taxes to pay the bonds also given by the act of the legislature?

However, the recent judicial history of this state shows that no money can be secured to prosecute public works of the character here involved, until the approval of this court is stamped: upon each bond issue, and for this reason we will undertake the onerous task of considering all the arguments advanced in this case •without the faintest hope that any portion of this opinion will be hereafter accepted by would-be investors as applicable to any other ■ bond issue than the one involved in this appeal.

The sixth, fifteenth, and sixteenth criticisms of the statute and grounds for relief are of the same character and will be so considered. They all proceed upon the idea that the legislature' has undertaken to create taxing districts or corporations with powers of taxation, or to carve out of a supervisors’ district a separate and distinct taxing district with indefinite powers. The vice of this conception is made apparent by a mere reading of the law. The bill is drawn with due regard to the plenary jurisdiction over roads vested in boards of supervisors by section 170 of the state constitution,- and this thought runs through every word and phrase of the act. The exercise of the powers- given by the act and the carrying out of the scheme is placed where it belongs, in the control and under the jurisdiction of boards of supervisors.

The methods for the construction and maintenance of public roads, and the means through which the funds necessary to this end may be obtained, is a proper subject of legislation, and are without objection, unless they in terms or by necessary implication take away from boards of supervisors the powers conferred by the •constitution. Nothing can be found in the act justifying the inference that the legislature was undertaking to confer upon a separate taxing district, or corporate entity,. jurisdiction over public roads, or the power to levy taxes upon persons or property. For convenience, and in order to identify the property to be assessed for the purpose of securing funds to liquidate the bonds to be issued, the act provides that boards •of supervisors will issue the bonds of the district, upon which' the special benefits are conferred. The district gets the benefit of the general plan for working roads, and something more, and this something more is the thing the district is required to pay. Under the plan devised by the legislature, the resident qualified electors are permitted to express their preferences upon the subject of a road district. This was not a necessary, or important feature of the law. The legislature was authorized to confer the discretion of organizing or not organizing the district to boards of supervisors alone.

The first and second ground for relief will be considered together. It is not pointed out wherein the act is unconstitutional, unless the constitutional inhibition referred to may be found in the fourteenth ground for relief. In this ground it is said that the act is in violation of the due process clause of the federal constitution, “in that no proper method is provided for •ascertaining the will of the qualified voters, or property owners, in that nonresident property owners .... are allowed no participation in the election or petition.” This we think has been answered. It was not necessary to the constitutionality of the act that either qualified electors or property owners, resident or nonresident, should be consulted. There is nothing in the act which discriminates between resident or nonresident property owners.

The second ground is without merit, because the first section of the act clearly authorizes the organization of a road district less than one supervisors’ district. There is no merit in the fourth ground.

We can see nothing of merit in the fifth ground. There seems to have been no difficulty in ascertaining the will of the electors, and it is apparent that the alleged confusion and impracticability of the scheme is purely imaginary. The elector must reside in the proposed district before he can vote, and there seems to be m> reason why his qualifications could not be definitely and certainly ascertained.

The third and seventh grounds are in our opinion, the only grounds to be seriously considered. It is manifest that the legislature omitted to so amend section 3 as to harmonize same with the general scheme. This was obviously an oversight. To construe this section literally would result in, a miscarriage of the dominant purpose of the legislature in passing the amendatory act. We cannot escape the conclusion that experience had demonstrated that it would be frequently desirable to organize districts in certain localities which, would not embrace the entire supervisors’ district. Supervisors’ districts are not infrequently traversed by streams or swamps which oppose impassable barriers between the part on the one side and the part on the other side of the stream or swamp. In cases of this kind the construction of a road on one side would be of no earthly use to the people on the other side. Reasons of this kind, and no doubt many other conceivable reasons, suggested the amendment of section 1, which authorizes districts smaller than supervisors’ districts. It was manifestly not the intention of the legislature to confer a power without also providing the means for making it effectual.

It being clear that the legislature intended to amend the act in the particular mentioned the court should not nullify the purpose, if there are any sound rules of construction by which we can enforce the evident intention of the lawmaking department The bonds are the bonds of the board of supervisors, but the property within the road district is the security for their payment. The county authorities supervise and issue the bonds, and the security for their payment is the taxing power of the government to be exerted on the property peculiarly benefited by the special improvement. A reading of the entire chapter leads to the inevitable conclusion that it was .the intention of the legislature to provide a means by which the inhabitants of a district less than a supervisors’ district would be enabled to secure for themselves a ready and convenient means of transportation which would improve the moral, financial and social condition of the community, and to accomplish this end it seems reasonably certain that the legislature intended to give to the community the right to borrow money and to provide means by which the payment of the creditor could be insured’. Any other construction would nullify the amendment.

The criticisms of the administrative features of the act are without merit or foundation. It is perfectly competent to pass any number of laws providing different plans for improving the public highways and different methods for securing funds to accomplish that purpose, and there is no confusion or conflict in' the different schemes so far as we are able to see, and able counsel have not directed our attention to any law in conflict with the law under review.

The record in this Case clearly identifies and defines the boundaries of the proposed district, and the procedure follows the requirements of the law and all is made a permanent record. After the issuance of the bonds the record points with certainty to the property that will bear the burden of paying the bonds when due.

Af/irméd.