Michael v. West Hatchie Drainage District

Ethridge, J.,

delivered the opinion of the court.

Under chapter 197, Laws of 1912, a petition was filed by certain citizens for the creation of the West Hatchie drainage district, which proposed district had territory both in Tippah and Alcorn counties. A preliminary proceeding was had, by which commissioners and an engineer were appointed to survey and report upon the pror posed district and notice given of the hearing before the county hoard of drainage commissioners of the proposed creation of the drainage district. At this meeting protest was filed and the district was not created, hut the drainage commissioners certified certain items of expense incurred in the survey of the proposed district and certified a recommendation to the hoard of supervisors of Alcorn county to levy an acreage tax on the land situated in Alcorn county, and the board of supervisors did levy an acreage tax thereon.

The appellant,. Michael, prepared a bill of exceptions including the proceedings before the board of supervisors and an appeal bond wherein an appeal to the circuit court of Alcorn county from the board of supervisors in making the assessment wag prosecuted. At the next term of court a motion was filed to dismiss the appeal: First, because the file of papers in such cause was lost and could not be found, and because said Michael had made no effort to substitute such papers. Second, because the record of the proceedings before the board of supervisors of said county shows that the judgment of the said board from which said appeal was taken is not a judgment or assessment of taxes, but a levy of taxes upon the land of said Michael under an assessment previously made and confirmed. Third, because the appeal is without authority of law.

Upon hearing this motion the trial, judge made the following statement:

‘ ‘ On this motion to dismiss the appeal the only question being adjudicated by the court is the question of whether the appeal was rightfully taken to this court or not; the court deeming it unnecessary to pass on the other questions about which there is no proof offered with the motion. This district being organized under the Acts of 1912, which provide that if any landowner is dissatisfied with the assessment made by the board of supervisors that an. appeal should be taken to the chancery court; this being a special statute for an appeal in this case it is the opinion of the court that the appeal is governed entirely by this statute and not by any other statute either general or special. The court is also requested in the motion to enter a judgment against the complainant and the sureties on the bond for the amount of the taxes with ten per cent., which the court declines to do for the reason that it is of the opinion that it is absolutely without any jurisdiction about the matter except to tax the complainant and the sureties on his bond with the costs of the case in this court which is done, and for which execution will be allowed to issue.”

The court entered a judgment dismissing the appeal.

A number of interesting and important questions are presented, and this court requested additional briefs addressed to the constitutional questions as to whether an acreage tax could be levied constitutionally where a district was not created, and also whether a judgment in assessing an acreage tax could be cqnstitutionally made where no notice was provided to the taxpayer to appear and contest the levy of such taxes, and, third, whether the legislature could constitutionally confer appellate jurisdiction upon the chancery court.

Owing to the fact that only a small amount was involved and the extensive work required to prepare a brief, one side of the controversy declined to go to the expense necessary to brief these questions, and we have briefs only in one side with reference to the constitutional features. However, it appears that on February 11, 1924, the court struck out of the record the bill of exceptions taken from the board of supervisors to the circuit court of Alcorn county, including the bond and the judgment of the drainage district board certifying the amount of the indebtedness incurred by the • drainage commissioners to the board of supervisors Therefore this leaves only the motion and the judgment of the court with the statement of the circuit judge in the record ; and after a further consideration we have concluded that we are not authorized in the present state of the record to pass judgment upon these questions. So this will leave the judgment of the board of supervisors levying the acreage tax precisely where it stood at the time the bill of exceptions was signed and filed, leaving all questions open for further adjudication in a proper cause.

The judgment of the circuit court dismissing the appeal must be affirmed.

Affirmed,

* Headnote 1. Appeal and Error, 4 C. J., section 1627