Oldham v. Lafayette County Board of Drainage Com'rs ( 1923 )

Sykes, P. J.,

delivered the opinion of the court.

The appellant Oldham in his petition asks that the ap-’ pellee board of drainage commissioners of Lafayette county be required to pay certain fees due appellant by appellee for services in connection with the organization of several drainage districts. The prayer of the petition is that it be required to pay this indebtedness or show cause why it should not be peremptorily ordered to levy a sufficient tax on this district to pay this indebtedness.

The material facts stated in the petition are as follows: That the appellee board some time in June, 1921, made certain allowances to appellant as attorney for services in several drainage district matters. An appeal was prosecuted to the chancery court from this order, and the chancellor reduced these fees and ordered the clerk of the drainage board to issue warrants to cover. Pursuant to this order of the chancery court, certificates Of indebtedness were issued to the attorney in each matter, due and payable in February, 1922, with six per cent, interest. These certificates recite that they were issued in pursuance of section 52, chapter 197, Laws of 1912. The petition alleges that these certificates are past due and unpaid; that he has made demand upon this board to pay same, but that it has declined and refused to pay.

A demurrer was interposed by the appellee board, sustained by the court, and judgment entered in favor of the appellee, from which judgment this appeal is prosecuted. There are a number of grounds of demurrer. It is unnecessary, however, to state them in detail. Before passing td the main question in the cause, it might be well to state that the appellee contends that some of the drainage districts for which allowances were made are in two or more counties, and therefore the circuit court of Lafayette county has no jurisdiction of these claims. A sufficient answer to that contention is that the chancery court of Lafayette county, has adjudicated" that it had jurisdiction in all of these allowances and has adjudged that this board owed these fees to the appellant. The petition for mandamus before us does not show upon its face that the decree of the chancery court in allowing these • fees was void for want of jurisdiction. There is therefore no merit in that contention.

The drainage districts in this controversy were organized under chapter 197, Laws of 1912 (section 4833 et seq., Hemingway’s Code). This act provides a complete and independent method for the organization of drainage districts. The petition for mandamus shows that these districts were organized and are still in existence. At least the latter fact is not negatived, and we must assume that it be true.

The petition does not state that any bonds have been issued by these drainage districts nor that there are any funds in the hands of the appellee board out of which these debts can be paid.

It is the theory of the appellee that the petition is subject to demurrer for these two reasons: That section 52 of chapter 197, La'ws of 1912 section 4386, Hemingway’s Code), provides for these certificates of indebtedness to be issued before the formation of a drainage 'district, and further provides that if a district is not organized after the indebtedness is incurred the county board shall furnish to the board of supervisors the amount of such indebtedness, and the board of supervisors shall then levy an acreage tax to pay off this indebtedness, but that this act makes no provision for the paying off of an indebtedness of an existing drainage - district, except that the county board of drainage commissioners shall pay off the indebtedness When the bonds are sold.

Section 4358, Hemingway’s Code (section 25 of chapter 197, Laws of 1912), however, provides that at the time of the confirming of the assessments the county board of drainage commissioners may order these assessments to be paid in installments or may order the issuance of bonds for the total- amount of such assessments, or may make the total amount of said assessments, or any part thereof, payable at a given date, and may issue the bonds for any balance. Under this section it is the' duty of the county board of drainage commissioners to either issue bonds or provide for the payment of these assessments.

The scheme here provided, where a district is organized and is a going concern, is for the county board to provide for assessments to be made annually, or for a bond issue, or for both. In. other words, it is the duty of the board of drainage commissioners to provide for the payment of the debts and expenses of the drainage district. Sections 22 to 24, inclusive, of this chapter (chapter 197,, Laws of 1912; sections 4355 to 4357, Hemingway’s Code), provides how these assessments are made and when they become final. Section 4364, Hemingway’s Code (section 30 of this act) specifies how the bonds are to be issued. From a careful examination of the whole act, and especially of those'sections above referred to, it is the duty of the county drainage commissioners to provide for the satisfying of the indebtedness incurred in the.organization of the district, either by the levying of proper assessments or the issuance of bonds.

It is not necessary for the petition in this case to allege that this board has on hand sufficient funds of these various districts to pay these claims. It is to be presumed that the appellee district has complied with its duty under this law. • If for any reason it is not able to pay this indebtedness, this reason should be set up by way of defense. After a district has been organized, this board cannot supinely 'do nothing toward making- assessments or issuing bonds. It is its duty to make provision for past indebtedness incurred as well as for the current expenses for the carrying on of the drainage district. The petition states a good cause of action. If the board be unable to pay this indebtedness, it devolves upon it to show that it has fully complied with the s'ections of the act above referred to, but has not on hand sufficient money to satisfy these claims.

Reversed; demurrer overruled, with leave to appellant to plead or answer within thirty days after the mandate of this court has been received in the office of the circuit clerk.

Reversed; demurrer overruled.