Elmore v. Alexander, 134 So. 144 (Miss. 1931). · Go Syfert
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Elmore Et Al.
v.
Alexander Et Al.
No. 29350..
Mississippi Supreme Court.
May 4, 1931.
Published opinion
134 So. 144
1931 Miss. LEXIS 183
Shands, Elmore Causey, of Cleveland, for appellants. Chapter 195 of the Laws of 1912 as amended in the section with regard to the appointment of commissioners, as will appear by section 4454 of Volume 2, Mississippi Code 1930, directs that the chancellor, after establishing such district shall appoint three owners of real property within the district to act as commissioners. We are unable to find throughout this record any evidence that C.F. Klingman owned any land in the district whatever. The evidence is affirmatively the other way; that is, that he owned no land in the district. According to the record, the court had no jurisdiction to enter the decree establishing this district. The record does not show that any publication of notice was made by the court as required by the statute. The record does show that there was an order for publication. On the evidence in this case, this district should not have been organized. The evidence goes no further than in a general way to say that drainage improves land. The court will note that the proponents did not rest upon any supposed right to have a decree establishing the district on the mere counting of noses and acres, but undertook to show rather feebly, it seems, that their proposed improvement was a thing of advantage. The agreed list of lands beginning on page 278 and running through to page 286, which was agreed to by appellants and appellees as being correct, shows on page 284, The Klingman Company as the owner of the 320 acres, and does not show Charles F. Klingman as the owner of any land whatever. There is a distinction between the corporation itself as an artificial entity and its members as corporators or stockholders quite as distinct as between natural individuals. McNamee v. Relf, 52 Miss. 426 , 429. W.B. Alexander, of Boyle, and W.W. Simmons, of Cleveland, for appellees. Section 4950 of Hemingway's Miss. Code of 1927 (section 4452, Code of 1930, being a part of chapter 195 of the Laws of Mississippi of 1912, as amended), provides that a majority of landowners, owning one-third of the land in a proposed drainage district, or one-third of the landowners owning a majority of the land, may have a drainage district established. In the case at bar more than a majority of the landowners in the district owning more than a third of the land were in favor of the establishment of the district. This petition was filed under section 2, chapter 269, Laws of 1914, amending section 2 of chapter 195 of the Laws of 1912. Under this section it is not within the discretion of the chancellor to deny the organization of the district, where it is desired by the statutory majority of landowners. Armistead v. Southworth, 104 So. 94 , 139 Miss. 723 . The primary purpose of this proceedings is the establishment of the drainage district, and not the appointment of commissioners. The commissioners are to be appointed after the establishment of the district, section 4952 of Hemingway's Code 1927 (section 4454, Code of 1930), and has nothing to do with the formation or establishment of the district. The final decree appointing the commissioners recites "which said commissioners now appear to be landowners in said district." It is reasonable to suppose that the court then found the facts to be as stated in the decree, and that it had been shown to the court after the evidence was concluded and the argument heard that Klingman was a landowner. Since the commissioners are appointed only after the district has been established, and such appointments are made only for the purpose of setting up the administrative board of the district as established, the validity vel non of Klingman's appointment should not suffice as a ground for reversal of this cause, as this is not a proper proceeding in which to test the qualification of this commissioner, for if he is not qualified he can be removed in a proper proceeding without affecting the organization of the district.
McGowen.
Published
[*365] McGowen, J.,

delivered the opinion of the court.

H. H. Elmore and other protestante appeal from a decree of the chancery court establishing Porter Bayou drainage district of Bolivar and Sunflower counties. The proposed district was established under section 2 (as amended) of chapter 195, Laws of 1912, which section 2 now appears' as section 4452, Code 1930. On the day fixed for the hearing before the chancellor, the appellants, with others, appeared and protested against the estab-' lishment of the district, but, after hearing much evidence, the court established the district after excluding certain lands of certain objectors therefrom. ■

As finally submitted here, there is no' question about the notice. Neither is there any question that the statutory majority at this hearing presented a petition for the establishment of the district.

It seems to be contended by counsel for the appellants that the evidence was not sufficient to warrant the chancellor in entering the decree organizing the district, because the evidence submitted by the proponents was. too general, and, in addition thereto, that, because of certain lands having been excluded from the district of the same kind and in the same category as those of the protestants, theirs also should be eliminated.

We think the testimony of Sector, sanitary engineer of the state board of health of Mississippi, and Clark, engineer, fully warranted the chancellor in holding that it appeared from the evidence that the establishment of the district was necessary for the promotion of public health and for agricultural purposes — at least, on a conflict in the evidence, we’ could not reverse the chancellor in this finding.

It is insisted by the appellants, and the point most strongly relied on in this appeal, that Klingman, named as commissioner, was ineligible, because he was not a landowner in the proposed district. It appears that, in[*366] the same order in which the court established the district, the three commissioners, provided for in section 4454, Code 1930, were appointed. Section 4452, Code 1930, supra, provides for the establishment of a drainage district; section 4453 provides for an appeal from said order, and that the order shall have the force of a judgment. Section 4454, Code 1930, provides as follows: “When the chancery court, or chancellor in vacation, has established such district, he shall appoint three owners of real property within the district to act as commissioners; and such persons, when so appointed, and their successors in office, shall constitute1, and are hereby declared to be, a body politic and corporate by the name and style selected, as mentioned in this article, by the court or chancellor,” etc.

It clearly appears from the quoted statute that it was contemplated that the order appointing commissioners should be made subsequent to the organization order, and, further, that no appeal is allowed therefrom. Such order should not have been included in the order establishing the drainage district, but its inclusion therein does not affect in the slightest degree, the validity of the order. Neither does the fact that this appointment-appears in the order establishing the district render the appointment of commissioners the subject of review in this court on appeal. We are therefore of the opinion that the eligibility of Klingman as a commissioner is not properly before this court, and cannot be determined by the court on this appeal. Klingman’s eligibility must be determined when and if he takes the oath of office in the manner prescribed by law.

We find no error in the order appealed from establishing this district.

Affirmed.