Box v. Straight Bayou Drainage Dist

delivered the opinion of the court.

The Straight Bayou drainage district was established in 1916 by decree of the chancery court of Yazoo county, under chapter 269, Laws of 1914 (Hemingway’s Code, section 4434, et seq.). The land comprised in this drainage district at that time was situated in the counties of Yazoo and Sharkey. There was no appeal from the order of the chancellor establishing the district as *862provided in section 3 of this act, and commissioners were duly appointed according to the provisions of the act. Humphreys county was created in 1918 by an act of the legislature. The land in this drainage district which had previously been situated in Yazoo county was all given to Humphreys county under this act. The land in this drainage district is now in the counties of Humphreys and Sharkey. Subsequent to the creation of Humphreys county and in 1919, the commissioners of this drainage district in due form gave notice that an assessment of betterments would be made. Such assessment was duty made by the commissioners and a report thereof made to the chancery court of Yazoo county. Notice was given as provided by the act to landowners that objections could be made and would be heard by the chancellor on a certain day. On that day there were no objections filed, and the chancellor affirmed and approved this assessment, from which judgment the appellant prosecuted this appeal.

The sole question presented to this court for decision is whether or not the chancery court of Yazoo county has jurisdiction to administer and supervise the affairs of this drainage district now, since no part of the district is now in Yazoo county. Under chapter 348, Laws of 1918, creating Humphreys county, there is no provision relating to drainage districts previously organized. Section 13 of this act provides:

“That all suits, both civil and crimina], now pending in the circuit ánd chancery courts of Washington Holmes, Yazoo, Sharkey and Sunflower counties shall remain and be finally determined in said courts.”

The general scheme of chapter 269, Laws of 1914, makes the proceding for the establishment and administration of the drainage district a judicial proceeding. Section 1 of this act provides for the giving of notice looking-to the organization of the district and to hearing objections, and the court, or the board of super*863visors, has to determine the sufficiency of the petition and pass upon the objection, etc. Section 3 provides that the order of the board of supervisors (or the chancellor or chancery court) establishing said district shall have all the force of a judgment and gives the right to appeal. Under this section the organization of the district by the chancery court of Yazoo county was a judicial act. In a broad sense of the word it was a “pending suit” in this court at the time of the decree organizing the district. After its organization, however, under this act there are many other things to be done, namely, the appointment of commissioners, the plan of the drainage district, the improvements to be made, and the assessment of betterments. Commissioners are appointed who attend to the administrative duties, who make reports to the chancery court, and there contests can be had áncl judicially determined. These contests are judicial questions and part of the general scheme and plan of administering the affairs of the drainage district.

At the time of the creation of Humphreys county, it is true there was no litigated question then pending before the chancellor in this matter for decision. The reports, however, of the commissioners and the assessments for betterments, had not been made. We think in its broad sense that this was a pending civil suit under section 13 of the act creating Humphreys county, and therefore that the chancery court of Yazoo county has jurisdiction of the affairs of this drainage district. One of the definitions of a “suit” in law in 37 Oye. pp. 522 and 523, is, “A proceeding in a court of justice for the enforcement of a right.” Another, “any legal proceeding of a civil kind; an action of any kind in a court of justice, whether commenced by writ, bill, or petition.” In defining what is a “suit” Chief Justice Marshall, in the ease of Weston v. City of Charleston, 2 Pet. 449, 7 L. Ed. 481, said;

*864‘ ‘ The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law . affords him. Themodes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceding by which the decision of the court is sought is a suit;”

The distinction between a mere proceeding administrative in its character, and a suit, is thus defined in the opinion in the case of Upshur County v. Rich, 135 U. S. 407, 10 Sup. Ct. 651, 34 L. Ed. 196:

‘ ‘ The principle to be deduced from, these cases is that a proceding, not in a court of justice, but carried on by executive officers in the exercise of their proper functions, as in the valuation of property for the-just distribution of taxes or assessments, is purely administrative in its character, and cannot, in any just sense, be called a suit; and that an appeal in such a case to a board of assessors or commissioners having no judicial powers, and only authorized to determine questions of quantity, proportion, and value, is not a suit; but that such an appeal may become a suit if made to a court or tribunal having power to determine questions of law and fact, either with or without a jury, and there are parties litigant to contest the case on the one side and the other.”

In the establishment of this district there were parties litigant with the right to contest the formation of the district. The chancery court as a judicial act passed upon the legality, regularity, and sufficiency of the proceedings establishing the district. Whether or not there was an actual contest over the formation of the district is not shown by the record and would in point of fact make no difference, as his decree establishing the district was a judicial act. The laws under which the district was formed expressly provide for the con-*865tinned jurisdiction of the court to pass upon the questions presented to it during the life of the district. It continues to be a pending suit.

A case very much in point is that of State ex rel. v. Riley, 203 Mo. 175, 101 S. W. 567, L. R. A. (N. S.) 900, which holds that the proceeding in the formation of a drainage district pending in a circuit court under the laws of the state of Missouri is a civil suit.

There may arise during the existence of the drainage district many different questions for adjudication, but all of the proceedings form a pending suit.

There is another reason, however, why the decree of the lower court must be affirmed, and that is this: Chapter 269, Laws of 1914, confers jurisdiction upon the chancery court where the land is comprised in more than one county. By this act the chancery court is empowered to continue this jurisdiction during the life of the drainage district. There is no provision whatever in the act transferring the jurisdiction to any other court under any conditions. There is nothing in the act prescribing any manner in which the court may lose this jurisdiction once acquired. The question is purely a statutory one, and the legislature has conferred this power in this case upon the chancery court of Yazoo county, and this court will continue to have jurisdiction of the affairs of this drainage district, unless the Legislature sees fit to deprive it of this' jurisdiction.

The decree of the lower court is affirmed.

Affirmed.

(dissenting).

In my opinion the beginning of this controversy was the filing of the assessment roll assessing the benefits, and, as that was filed after the passage of the law creating Humphreys county,' the proceeding should have *866been filed in that county. Section 13 of the act creating Humphreys county provides:

“That all suits, both civil and criminal, now pending in the circuit and chancery courts of Washing-ton, Holmes, Yazoo, Sharkey and Sunflower counties, shall remain and be finally determined in said courts.”

Inasmuch as the assessment roll of benefits was not filed until long- after the approval of this act, this suit cannot be said to be a pending suit unless it was a part of a suit pending prior to that time in the chancery court of Yazoo county, and unless the creation of the drainage district under chapter 195, Laws of 1912, as amended by chapter 269 of the Laws of 1914, was a judicial proceeding, and was undetermined prior to the creation of Humphreys county. Laws of 1914, chapter 269, section 1, provides for the creation of drainage districts, and that on the petition of the owners of real property, describing the territory to be created into a district, the board of supervisors, or the chancery court in cases pending there, shall publish notice in a newspaper having circulation in the proposed district of the intention to organize a drainage district and appoint a day to hear objections, if any are offered; and unless at the hearing a majority of the landowners, owning- a majority of the land proposed to be included in the proposed district, shall object to the organization, the district would be created as therein provided, but if such majority shall protest that such board, or such court shall determine whether it shall proceed with the organization, and maps out a program of procedure, unnecessary to set out in this opinion, and upon the filing- of the report that the clerk shall give notice by publication calling upon the persons interested to appear on the date to be fixed, not earlier than twenty days nor later than forty days after the first publication, to show'cause for or against the establishment of said district, and further provides for a hearing by *867the board, or by the chancery court in cases before it, by which the question will be determined. By section 3, chapter 269, Laws of 1914, it is provided that such order of the board or chancellor shall have all the force of a judgment, and that any owner of real property within the district may appeal from said judgment to the chancery court, or chancellor in vacation, if from a decision of the board of supervisors, or to the supreme court if from a finding of the chancery court or chancellor, within twenty days after such order has been made;. but, if no appeal is taken within that time, such judgment shall be deemed conclusive and binding upon all real property within the district and upon the owners thereof; and' that any owner of property in the district proposed to be organized may within a like time, and in a like manner, appeal from an order refusing to establish such district.

There was no appeal within twenty days as provided therein, and, if the matter was a judicial one at all, it was final under the very terms of the act long before the creation of Humphreys county and ceased to be a pending suit. In my opinion, however, this proceeding is not a judicial proceeding, but is a proceeding of a legislative and administrative nature, and the legislature could have created the district itself without the intervention of any other agency whatever. The legislature may not change the nature of a legislative function by imposing upon a board or other agency powers and discretions which the legislature itself may have exercised without the intervention of such proceedings or board.

The creation of the drainage district is analogous to the creation of a municipality, or any other taxing district. It is legislative in its very nature, and not be judicial. It is true the legislature may enact a law to come into force in certain territory upon conditions, and may create an administrative board to determine *868the facts upon which said law may come into force in such territory; but doing so does not make the determination of these facts a judicial function. The legislative department may determine the facts for itself, or it may intrust that function to another body; but doing so does not make such body a judicial body,nor its proceedings a judicial proceeding. The executive department in the exercise of its functions frequently has to determine facts, but such a determination of facts by the executive is not the exercise of a judicial function.

In Railroad v. Dodd, 105 Miss. 23, et seq., 61 So. 743, 49 L. R. A. (N. S.) 565, it was held that proceedings before the railroad commission were not judicial functions from which an appeal could be granted to this court, and that chapter 86, Laws of 1.908, granting an appeal, was invalid. For additional authorities, see the opinion in that case and the briefs of counsel.

Section 7, chapter 269, Laws of 1914, provides for the assessment of benefit to accrue to the land of landowners in such district, and provides for the filing of such assessment and the giving of notice by publication, and that parties aggrieved may have a hearing, and that such board shall “enter its findings thereon, either confirming such assessment, or increasing, or diminishing the same;” and its finding, whether protest is filed or not, shall be final and have the force and effect of a judgment from which an appeal may be taken within twenty days, and that such assessment “shall stand as a final assessment of benefits upon the lands of the said district, . unless in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than those assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain-the improvements of the district.” Clearly, the proceeding for assessment of the benefits is a suit en*869tirely separable from and independent of the original order creating the district and the filing of the assessment roll, and the giving notice thereunder is the beginning of the suit, as this and all proceedings subsequent to it was admittedly made and instituted subsequent to the approval of the act creating Humphreys county, and it should have been instituted in the chancery court of Humphreys county, or that of Sharkey county. Other sections of the act creating Humphreys county provide for transcripts of records from the old counties to the .new county so far as they affect titles or property in Humphreys county.

In the present case, the chancery court has undertaken to exercise jurisdiction over territory situated beyond the confines of its district. Section 261, Hemingway’s Code (section 505, Code of 1906), provides:

A chancellor shall be appointed for and from each of said districts. He may hold terms of court in any other district with the consent of the chancellor thereof when in their opinion the public interest may require-. ’ ’

Under this section he is to be appointed “for” and “from” each of said districts, and it is provided that he may hold terms of court in any other district “with the consent” of the chancellor thereof “when in their opinion the public interest may require. ’ ’ In all other cases his functions are limited to his own district, and it was clearly unlawful for him to exercise judicial powers affecting the citizens and property of people entirely bevond the confines of his district.