J.D. Guyton, for appellants.
It is not shown who are the landowners in the proposed district, nor is it shown how much land each landowner does own therein. This, we contend is highly important.
This drainage district is being created under chapter 197 of the Laws of 1912, as amended by chapter 215, Laws of 1922. This law authorizes ten per cent. of the landowners to file a petition with the chancery clerk praying for the creation of the proposed drainage district. The chancellor appoints three landowners of the county who constitute the county board of drainage commissioners. This county board is denominated by the statute as a "court of record." The district commissioners examine the land and make a report to the county board. When this report is made, notice is given to the landowners therein that at a day and place named a final hearing will be given by the county board on the organization of the district. At this hearing, it is evident that every person who owns land in the district can object. He not only votes as a landowner, but he votes his acreage also. There must be some way of knowing who are the landowners, and also how much land each owns. In no other way can it be determined who can object, or vote, nor the strength of his vote. True enough, the burden is on the objectors to vote down the organization; but we say the burden is not on the objectors to show that they constitute a majority, etc., or if they do have to do this they are entitled to be able to do so from a record to be made and filed by the organizers. The organizers have the organization machinery with powers of taxation behind them, and the objectors have no organization and no powers of taxation to cover their expenses. The reason why we say that the district commissioners should make out and file a list of landowners by names and addresses and showing the acreage of each, is because they are the administrative officers of the district under this law to a very large extent, and because further, under section 12 of the act, they are required to map out the district, ascertain the probable cost, locate all drains and designate what land will be benefited, and what lands will be damaged, etc. Under
section 20 of the act they are required to go upon the lands after the district is finally organized and apportion the costs of the proposed work upon the several tracts, according to the benefits received. It is apparent therefore, that at some time it is absolutely necessary that a list of the landowners showing the names and addresses and sub-divisions and acreage, of each landowner, be made and filed with the county board. The reason why we say that district commissioners should make out and file a list of landowners by names and addresses and showing the acreage of each, is because they are the administrative officers of the district under this law to a very large extent, and because further, under section 12 of the act, they are required to map out the district, ascertain the probable cost, locate all drains and designate what land will be benefited, and what lands will be damaged, etc. Under section 20 of the act they are required to go upon the lands after the district is finally organized and apportion the costs of the proposed work upon the several tracts, according to the benefits received. It is apparent therefore, that at some time it is absolutely necessary that a list of the landowners showing the names and addresses and subdivisions and acreages, of each landowner be made and filed with the county board. Another pertinent reason is because the objectors would have a sufficient and reasonable time to check over and ascertain whether or not the named landowners in such list are in truth and in fact landowners of the proposed district, and as such entitled to be counted in the contest between the proponents on the one side and the objectors on the other. It may be that under section 2 of the act of the proponents of the district should present the names of the landowners in their original petition. This, to some extent, was done in this case; but it is by no means complete or accurate. It would seem, however, that the first hearing on this petition is but preliminary. While under sections 8 and
9 (section 9 being amended by chapter 215, Laws 1922) there is a hearing had on the petition, and at this hearing the same number of landowners and acreage may defeat further proceedings, yet this is but preliminary, and fullness is not required. It is far more important to have this list of landowners accurately and fully at the final hearing. The parties must be in court at some stage before the land is taxed; otherwise there is not due process of law. Sections 22 and 54 of the act, about notice of assessment and confirmation thereof, do not fully satisfy the due process clause; for before that stage is reached considerable expense is put on the district. This contest arises before the assessment stage is reached; and therefore all rights of the objectors on the organization of the districts are preserved.
Wherefore, we submit that the county board did not have before it sufficient data and information to enable it to legally organize this district, and the chancery court was in error in holding that it did have and that the district was legally organized.
The next question we want here to consider is, did the objectors have a fair trial before a fair and impartial and disinterested court? Section 165 of the Constitution guarantees this by providing that: "No judge of any court shall preside on the trial of any cause, where the parties, or either of them, shall be connected with him by blood or consanguinity, or where he may be interested in the same, except by consent of the judge and of the parties." All through this record, at every hearing wherein the objectors were called on to speak, the objectors objected to the members of the county board, J.D. Rimmer, Will Brooks, and G.D. Bell, sitting at the hearing of these contests, and at each time and place moved the members of the county board to recuse themselves, on the ground that they, and each of them, were parties to the original petition praying for the creation of this drainage district and were landowners therein
and therefore interested in the result of these contests, and disqualified to sit on said county board under section 165 of the Constitution. The chancery court holds that these commissioners are competent to sit, and affirmed the ruling of the county board to the same effect. This same question is not put up to this court for its ruling. We are all familiar with the recent case of Tunney v. State of Ohio, 47 Sup. Ct. 437, 71 L.Ed. ___, referred to by this court in the recent case of Bryant v. State, 112 So. 675 , holding that a justice of the peace is disqualified where his fee depends on a conviction. The case of Lemon v. Peyton, 64 Miss. 161 , 8 So. 235, holds: "One does not cease to be a citizen by becoming a judge, and he may vote as his judgment dictates, or petition for an opportunity to vote, and does not thereby disqualify himself as a judge in the matter which may come before him. The propriety of the rulings of the board of supervisors cannot be called in question by petition for prohibition. That could be done only by appeal." In that case, all the board of supervisors had to do in ordering an election under "local option law" was to determine that one-tenth of the votes of the county had signed and presented a petition therefor. The fact that some of the members of the board signed this petition and solicited others to do so did not disqualify them to order the election. The statute was there mandatory that the election should be called if one-tenth of the voters asked for it. In Dodd et al. v. Kelly et al., 107 Miss. 471 , 65 So. 561, it is said, "A judge who is disqualified to preside on the trial of any cause cannot make any decision therein, right or wrong, except by the consent of the parties." The record here discloses that the county commissioners did not have the consent of the objectors to sit in this case at any time; and under the above case these commissioners or members of the county board had no right at any time to render any decision, right or wrong, in this case. The
general rule on disqualification of judges to sit in some cases is stated in 33 C.J., Judges, secs. 128-131, p. 988.
We therefore find from the record that the members of the county board are parties to the petition asking that the drainage district be organized, and that they then get themselves appointed as the county board which is to determine whether or not the district shall be organized. On the presentation of the petition to them, they find their own petition being presented to them for determination, and they are being represented by their attorneys in this petition, and as a court to pass on the question are being advised by the same attorneys. One would not have to resort to imagination or suspicion to say that all discretionary matters had been by this county board prejudged and predecreed. The case of Pegram v. Drainage District, 108 Miss. 793 , 67 So. 453, said that this county board is not a court in the strict sense of the word, and that most of its functions are administrative; yet this same case admits that this county board does exercise some judicial functions. There is no provision for a de novo trial in the chancery court. We see no provision or authority for the chancery court to overrule the county board on any question wherein it has discretion. There is no decision of our own court holding that boards of this nature are not disqualified to sit when they are acting judicially — all the cases holding they are not disqualified are cases where in the particular case they were acting in an administrative capacity. Hence, to find cases directly in point, we must resort to the courts of other states. State of Alabama v. Aldridge, 212 Ala. 660 , 103 So. 835 , 39 A.L.R. 1470. The laws of Alabama had provided for a state board of accountancy. An accountant had been cited to appear before this board and show cause why his license should not be revoked. He did appear, and he presented his motion for the board or the members thereof to recuse themselves. One stepped aside; but the others remained. He went into
another court and filed his affidavit for a writ of prohibition, setting up the fact that the board was disqualified by reason of prejudice, bias, and prejudgment of his case. This was demurred to. The opinion of the Alabama court is strong and its reasoning convincing. Many authorities are cited. See note to this case on page 1479b. Another case well reasoned and supported by numerous authorities is Stahl v. Board of Supervisors, 175 N.W. (Iowa) 772, 11 A.L.R. 185. This case holds "one may not be judge of his own cause;" that the so called "rule of necessity" does not exist in such cases; that a member of a board of supervisors who casts the deciding vote in favor of a drainage district and who owns one hundred acres of the land that will be benefited, is disqualified to sit on the hearing for its organization. See note to this case in 11 A.L.R. 193; 4 C.J. Appeal Error, sec. 2646, p. 726. As before stated, the statute does not authorize a trial on the merits de novo in the chancery court on appeal there. Hence, the objectors, in taking their appeal from the county board finally organized this drainage district, confined themselves, and we submit properly, to such questions as it would reasonably seem the chancery court had any power to determine.
The two cases above cited from Alabama and Iowa, with the numerous authorities cited in each, are themselves a brief for the appellants in this case. Wherefore, we respectully submit that this case should be reversed; that there was not sufficient data before the county board to justify it in organizing the district by reason of their failure to make and file a list of landowners showing who owned the land and what land they owned and their addresses; and that the members of the county board are incompetent to sit in this case unless all the interested parties consent thereto, and their acts are invalid.
C.E. Morgan and J.G. Smythe, for appellees.
The record shows that the district drainage commissioners ascertained as far as they could from the records, both the land assessment and tax rolls, and the records of lands in Attala county, such names and the land descriptions as the same disclosed, and filed the same as a part of this record. These parties could not ascertain from such records the indefeasibility of interest of tenants in common, growing out of the death of landholders, and the descent of the land of such landholders to their respective heirs, and could not ascertain the respective interests of tenants in common from those records, but had to rely on their general information by going upon the lands and coming in contact with the owners thereof. You might say the entire complaint of this body of objectors is made up in their cry against the insufficiency of the facts for them to ascertain whether or not they wanted to object, yet this record shows from every angle that the same objectors rose in a solid phalanx and attempted to smite this district on its first appearance in the courts, and have continued in a body to object to every step in the proceedings. The appellants complain by saying there must be some way of knowing who are the landholders, and how much each landholder owns. That is true. The trouble is he wants to determine how they shall know it, what method he shall use to learn who are the landholders, and how much land they own. He is not satisfied with the legislature's method of fixing it. The law did not require the proponents of the drainage district to run down the family tree of every family in order to ascertain their interest in lands. It only required the proponents to ascertain such as they could from the assessment rolls and land deed records. The appellant says that the burden is not on the objectors to show that they constitute a majority. The court determined from a count of noses that the objectors did not
constitute one-third of the names owning one-half of the land, nor one-half of the landholders owning one-third of the land, which is a finding of fact, and unless this court can determine from this record that the court was clearly at error in his finding on the facts, then it is very clear that this court will not disturb the final decree of the chancellor. And in passing the court must not lose sight of section 65 of this Act, which provides that it shall be liberally construed to promote the ditching, dredging and reclamation of wet, swampy, and overflowed lands.
Mr. Breazeale, one of the district drainage commissioners, gives a complete list of the owners of the land and the acreage of each, with the exception of one or two parties where the ownership is in doubt. The chancellor heard this case on oral testimony and determined that the county board had some information. The notices published to the landholders in Attala county and circulated by mail to those outside of the county, by having the same posted with postage prepaid, was notice that Attala county drainage district Number Two was a proposition to drain Hokanookany river, and those parties owning land in said river bottoms did not need a list of landholders to know whether or not their lands were embraced in the overflow districts or not. Indeed they knew best of all parties whether their lands were subject to the overflows from this stream. All parties who own lands within the district have the same interests. It is nowhere shown that on account of the lack of information there was a single man influenced to vote against the drainage district or to fail to vote against it. The chancellor reached the same conclusion that the board of drainage commissioners reached on the finding of fact.
The second proposition raised by the appellants and urged by them is that J.D. Rimmer, G.D. Bell, and Will Brooks were held as competent members of the county board of drainage commissioners. 19 C.J., 626,
says: "The qualifications of drainage commissioners are such as are prescribed by statute, such statutes generally providing that they shall be competent or disinterested persons. Drainage commissioners are not disqualified by the mere fact of their ownership of lands lying within the drainage district, and some statutes specially require that they shall be owners of land within this district." "The term `competent' as used in certain statutes which provides that the court shall appoint three competent persons as drainage commissioners does not mean disinterested, and owners of land within the proposed district are not disqualified as commissioners, nor does ownership of such lands disqualify independent of the statute." ____ v. Cranberry Creek Drainage District, 107 N.W. 25. Our statutes provide that the commissioners shall be landholders. These provisions are made in order to insure the interests of the parties in draining their own lands with others, and where they conserve their own interest in the drainage of land they necessarily must safeguard the interest of all parties who own land within the district. The drainage commissioners of this district are not called upon to pass on any issue in this case that might be adverse to the objectors.
Pegram v. West Hatchie Drainage District, 67 So. 453, says, "since, though the board is given some judicial powers, most of its duties and functions are in the main administrative, and the legislature does not make it a court in the strict definition of the term." Telegraph Company v. Railroad Commission,
21 So. 15, says: "That the Mississippi Railroad Commission is a mere administrative agency, although in some respects, it exercises quasi -judicial powers." Quoting the Pegram case, supra, "If we see that the board is a court of record because it has been so denominated by the act, then the establishment of the board is authorized by section 172 of the Mississippi Constitution; for if a court, then it is an inferior court. It had limited and restricted jurisdiction
Its findings and determinations are not final and conclusive, and are subject to review or correction of a higher court under the very provision of act for appeal from its orders or decisions to the chancery court. So it seems that this court has already decided that there is no merit in the contention that this case is not triable de novo in this court. State of Ala. v. Aldridge, 103 So. 835 , deals with a board of accountancy, where the board preferred charges, and where the prosecutors in the case were set up as a court to try the defendant. That presents an entirely different state of facts.
The chancery court tried this case de novo and passed on all facts. The first assignment of error complained of being one of fact, and the last suggestion or assignment being one that is so firmly settled. And the Pegram case, supra, which holds that the findings of this court are not final and conclusive but are subject to review, we submit that the lower court should be affirmed.
Argued orally by J.D. Guyton, for appellants, and C.E. Morgan and J.G. Smythe, for appellees.