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3 F.(20) 623 involved, or certainly might be involved, in which jurisdiction is conferred by law.” By the changing of the course of a stream by none of the provisions of the statute is straightening the same, or by digging ditch- power conferred upon the quarterly court es or canals to draw off its headwaters in to issue bonds such as those in question, exdifferent channels, than would be involved cept where special provision is made by by the mere construction of a levee as pro- particular enactment. Furthermore by secvided for by chapter 131 of the Acts of tion 6045, provision is made for appropria1871. In neither of said Acts of 1871 ortions of county funds under sixteen specific 1901 is the power impliedly or expressly heads, none of which applies to bonded ingiven to construct such a drainage district as debtednesses, and it is specifically provided that for which the bonds in question were by section 6046 that the court shall have no issued.
authority to appropriate money for any  This brings us to a consideration of purpose "unless specially provided for by chapter 185 of the Acts of the Legislature law.” By decisions too numerous to menof Tennessee of 1909, with its amendments tion it has been repeatedly held in Tennesthereto embraced within sections 3871a7 to see that neither a county official nor the and including 3871a170 of Shannon's Code. county court possesses any power except
This law is commonly referred to and known that given by statute. as the "Drainage Law" of Tennessee. Man- Acts of 1909, c. 185, of the Legislature ifestly, if no authority existed for the is- of Tennessee was first before the Supreme suance of the bonds under either of the Court of Tennessee in 1911 in the case of acts above mentioned, and if there existed State ex rel. v. Powers, 124 Tenn. 553, 137 any authority whatsoever for their issu- S. W. 1110. In this case a mandamus suit ance, then it must be found within the pro- was brought seeking to compel the county visions of this latter act with its amend- judge of Gibson county to issue a warrant ments. This act would seem to be a com- to pay for certain preliminary expenses in plete scheme within itself. However, wheth- connection with the construction of a proer it should be so considered, or whether it posed drainage district. The expenses had should be considered in conjunction with the been provided for by the quarterly court actacts above cited and as a part and continu- ing under the provisions of the Act of 1909. ation thereof, is a question which need not The county judge declined to issue the warbe here determined, in view of the construc- rant upon the ground that the act was in viotion placed upon said former acts. But be- lation of the Constitution of Tennessee, for fore considering this act in detail it may several reasons, and particularly because it be well to consider certain other provisions was claimed it provided a system of taxaof the laws of Tennessee, relative to coun- tion upon a basis of particular benefits to ties and county officials. By section 493 of certain lands or individuals and that the Shannon's Code it is provided that every power of taxation was conferred upon an county is a corporation and the justices in authority other than the quarterly court of the county court are the representatives of the county. In construing the act in this the county and authorized to act for it. This case, it was held that it was not violative section is based upon the provisions of the of any constitutional provision of the state Constitution of Tennessee, article 10, § 4, as contended, and that the power conferred and article 2, § 29. By section 511 provi- by the act whereby assessments might be sion is made for a judge or chairman of the made against the lands within the bounds county court of the various counties, and of the proposed drainage district was not a the general duties of such official are set levy of taxes, but a fixing of special assessout under section 517. Nowhere is there ments according to the benefits to be derived found a statute which authorizes such offi- by reason of the improvements proposed, cial to issue bonds for any purpose binding and that inasmuch as the act did not prothe county.
vide for a system of taxation it did not fall By section 5993 of Shannon's Code it is within the provisions of article 2, § 29, of provided that all business in the county the state Constitution, requiring that taxes court which cannot be lawfully done by the should be according to value, or that an eleccounty judge or chairman shall be done at tion should be held before the credit of a the quarterly sessions to be held at stated county could be loaned in aid of any individperiods, and the general powers of the ual, etc. The court construed a drainage quarterly court are set out under section district such as proposed by the act as a 6027, the last subdivision of which confers county purpose for the construction of power upon the quarterly session of the which special assessments might be made county court to do "all other matters of against the property within such district according to the proportionate benefits to be and if, in the sale of said bonds, a premium derived by the particular owners. The is received, such premium shall be credited question of the validity of bonds issued un- to the drainage fund; and should the cost der the act was not considered, nor so far of such work exceed the estimate, a new apas investigation has revealed has that ques- portionment of the assessment may be made tion been determined by the Supreme Court and levied and other bonds issued and sold of Tennessee.
in like manner, but in no case shall the After the provisions in the Act of 1909 bonds run longer than twenty years. Any for the establishment of drainage districts property owner may pay the full amount and the assessment of the costs of construc- of the benefit assessed against his property tion against the lands embraced therein, it before such bonds are issued and receive a is provided by section 12 that
receipt in full therefor. • “The assessments shall be levied upon the “The terms and times of payment of the lands of the owners so benefited in the ratio bonds so issued shall be fixed by the board aforesaid, and shall be collected in the same of directors of the improvement district, manner as taxes for county purposes, ex- and such bonds shall be signed by the judge cept as herein specially provided, and the or chairman of the county court and counfunds so collected shall be kept as a sep- tersigned by the clerk of the county court, arate fund, and shall be paid out only for each of said officers signing his name offipurposes properly connected with such im- cially, and shall be verified either by the provement, and on the order or warrant county seal or seal of the county court clerk. of the judge or chairman of the county Said bond shall be issued for the benefit of court." The act provides that wherever reference trict shall be numbered by the county court
the district numbered thereon, and each disis made to the county court, except as oth- and recorded by the county clerk in the erwise specifically stated, it shall refer to drainage record, said record showing speand mean the court presided over by the cifically the lands embraced in said district county judge or chairman, and not the quar- and upon which the assessment has not terly county court. By section 24 it is pro- been previously paid in full. vided that “The assessments as provided for by this face that it is to be paid only by assess
"Each bond shall show expressly on its act shall be collected by the county trustee ments levied and collected on the lands as county taxes are collected, except as here within the district so designated and numin provided, and the funds so collected shall be kept as a separate fund, and shall be bered, and for the benefit of which district
such bond is issued; nor shall any assesspaid out only for purposes properly con
ment be levied or collected for the payment nected with such improvement on the order or warrant of the county judge or
of said bond or bonds, or the interest therechairman; but such assessments may be col- on, on any property, real or personal, outlected by bill filed in chancery, as hereinbe- side the distriet so numbered, designated, low provided, and no personal property of and benefited the owner of land so assessed shall be liable By section 33 it is provided thator distrained upon for such assessment, but “The assessments provided for by this the land so assessed only shall be liable for article, when made and levied, shall be and such assessment."
become valid liens upon such lands so asBy section 27 it is provided that, sessed just as state and county taxes are
“If the county court shall determine that liens upon lands”; and "when such assessthe estimated cost of reclamation and im- ments have been due and delinquent for provement of such district of land or levee sixty days, bills may be filed in the Chanor drainage district is greater than should cery court of the county, or chancery disbe levied in a single year upon the lands trict, in which the lands lie, upon which benefited, the court may fix the amount that such assessments are due and delinquent, shall be levied and collected each year, and for the collection thereof out of such lands may issue drainage bonds of the county, by a sale thereof in all cases, except in bearing not more than 6 per centum annual cases where the assessment is made against interest, said interest payable annually, and a railroad company or a public highway, as may devote such bonds at par, with accrued herein provided.
Upon confirmainterest, to the payment of expenses and tion of such sale by the chancery court, it work as it progresses, or may sell the same shall divest title out of the owner and rest at not less than par, with accrued interest, it in the purchaser, and award a writ of and devote the proceeds to such payment; possession, if asked for; but where title is
3 F.(20) 623 so vested in a purchaser the land so pur- ed; and it is hereby certified and recited chased shall still be subject, in the hands of that all acts, conditions and things required the purchaser, his heirs, or assigns, to any to be done in locating and establishing said other assessments not yet due, or unpaid, district and in equalizing and levying said that may have been made and fixed or assessment against the lands benefited therelevied upon it at the time of such confirma- by and precedent to the issuing of this bond tion of sale, for the benefit of the improve- have been done, had and performed in ment district on account of which such sale due form of law, and that the total has been made.
amount of bonds issued for the account of The amendments to the act do not alter said drainage district does not exceed the the effect of the provision above quoted. assessment so levied therefor and uncollect
The form of the bonds sued on is as fol- ed at the time said bonds are issued or any lows:
legal limitations thereon; and for the “United States of America.
prompt performance of all the covenants, “Number
recitals and stipulations herein contained "$500.00
$500.00 and for the collection and application of "Obion River Drainage District No. 2. said assessment, and for such other and fur
ther assessments authorized and required to "Obion County Drainage Bond.
provide for the prompt payment of this “6 Per Cent.
bond and the interest thereon, the full faith “Know all men by these presents that the and resources of said county are hereby ircounty of Obion, in the state of Tennessee, revocably pledged. acknowledges itself to owe, and for value "In testimony whereof, the county of received hereby promises to pay to bearer Obion, Tennessee, has caused this bond to as hereinafter provided the sum of five be signed by the judge or chairman of its hundred dollars in lawful money of the county court and countersigned and recordUnited States of America, on the first day ed by the county clerk and verified by the of May, 1921, with interest thereon from county seal or seal of the county clerk, and the date hereof until paid, at the rate of has caused the coupons hereto attached to six per centum per annum, payable annual- be executed by the lithograph fac simile ly on the first day of May in each year, on signatures of said officials, all as of the first presentation and surrender of the annexed day of May, 1913. George R. Kenney, interest coupons as they severally become Judge of the County Court of Obion Coundue. Both principal and interest of this ty, Tennessee. bond are hereby made payable at the New "Countersigned and recorded: C. S. TalFirst National Bank, of Columbus, Ohio. ley, County Court Clerk. [Seal.]" “This bond is one of a series of one hun
"Interest Coupon. dred and twenty-four (124) bonds, aggregating of the principal the sum of sixty
"On May 1, 1921, the county of Obion, two thousand two hundred and twenty-nine in the state of Tennessee, promises to pay dollars ($62,229.00) issued by the county to bearer the sum of thirty dollars ($30.00) of Obion for the purpose of paying the lawful money of the United States, at the cost of a combined system of drainage in New First National Bank, in the city of said county known as 'Obion River drain- Columbus, state of Ohio, being one year's age district No. 2 of Obion county, Ten- interest due that date on drainage bond No. nessee, and in anticipation of the collection 60 issued for the account of Obion River of a special assessment of tax duly levied drainage district No. 2, dated May 1, 1913. upon lands benefited pursuant to an order
"George R. Kenney. made by the county court of Obion county,
“C. S. Talley." duly entered of record and in strict compli- It will be noted that not only does the ance with chapter 185 of the Acts of the Act of 1909, which authorized the bonds in State of Tennessee passed by the Fifty- question, specifically provide that such Sixth General Assembly of said state. bonds shall be collected out of no other
“This bond is based upon and constitutes property than that embraced within the a lien upon and is payable solely out of drainage district, but the bonds show upon the proceeds of the special assessment for their face that they are issued for the purbenefits heretofore legally levied on the pose of paying the costs of the particular lands in said District, and benefited by said drainage district of Obion county, and are improvements, and thereunto the said spe- in pursuance of an order of the county cial assessment is hereby irrevocably pledg- court “in strict compliance with chapter 185 of the Acts of the State of Tennessee, pass- his eyes to the specific provisions and limed by the Fifty-Sixth General Assembly of its contained therein in another portion said state." And further is it provided in thereof, nor could such contemplative purthe face of each bond that
chaser properly construe the wording of “This bond is based upon and constitutes the latter portion of the bond as pledging a lien upon and is payable solely out of any other resources of the county for the the proceeds of the special assessment for payment of the bonds than that to which benefits heretofore legally levied on the the bond and the act specifically referred. lands in said district and benefited by said If in fact the county officials issuing the improvements.
bonds had undertaken to bind the county, The provisions of the law by the recita- under the authorities above cited, such acts tions of this bond became a part of the on their part would have been void. bond as if written therein. Attention is It is earnestly insisted by plaintiff that again called to the quotation above set out the latter portion of the bond quoted shows from the opinion of the Supreme Court of that the county has pledged its entire rethe United States in Anthony v. County of sources and its good faith for the payment Jasper, 101 U. S. 693, 25 L. Ed. 1005, and of the bonds in suit, and that this wording under this authority plaintiff herein was means that not only the lands embraced charged with notice not only of the particu- within the drainage district, but the entire lar act of the Legislature cited in the bond, wealth of Obion county may be subjected but with the laws of Tennessee applicable to the payment of the bonds to the extent to such bonds.
necessary. The bond will hardly bear the It is true the bond states in the beginning construction plaintiff seeks to place upon that the county of Obion acknowledges it- it. Furthermore, the bond must be conself to owe, etc., and promises to pay the 'strued as a whole. After it is stated in amount specified in the bond to the holder the bond that it is based upon and constithereof; but this general provision is but tutes a lien and is payable solely out of the the usual form in which such a bond would proceeds of the special assessments upon be issued under authority such as conferred the lands within the particular drainage disby the Legislature of Tennessee in the Act trict it is true, it is recited: of 1909, and certainly could not prevail "And it is hereby certified and recited over a special provision in the bond calling that all acts, conditions and things required the direct attention of any prospective pur- to be done in locating and establishing said chaser to the fact that the bond is issued in district and in equalizing and levying said accordance with and under the provisions assessments against the lands benefited of a particular power conferred by a par- thereby and precedent to the issuing of this ticular act and that such purchaser or hold- bond have been done, had and performed in er must look to certain specified property due form of law, and that the total amount for the collection of the bond, and when of bonds issued for the account of said such purchaser looked further to the provi- drainage district does not exceed the assesssions of the act he would readily see that the ment so levied therefor and uncollected at Legislature in unmistakable language was
the time said bonds are issued or any legal solicitous to limit the power to collect on
limitations thereon. any bonds issued to the lands within the The most that can be said of this recitadrainage district proposed to the exclusion tion is that the bonds state as a fact that of all other property, either real or person- the county has done, under the act, all that al, of the individual owners of such lands is required by law to be done to properly or any other parties. It would be difficult establish said drainage district and provide to conceive in what phraseology the inten- for the assessments, etc., in order that the tion of the Legislature could have been bonds may be issued as provided by the couched to make it more plainly appear
act. As above stated, if the officials signthat each drainage district created under ing the bonds meant more than this, there the provisions of the act should be made to was a total lack of authority for any atbear the expenses of its own construction, tempt to bind the county or to provide any and that no other method could be resorted other method for the payment of the bonds to for the collection of the costs of con- than authorized by the Act of 1909. It is struction than that provided by the terms also true that it is recited in the bonds of the act. A contemplative purchaser of thatthe bonds could not read the general provi- "For the prompt performance of all the sions of the first part of the bond and close covenants, recitals and stipulations herein
3 F.(20) 623 contained and for the collection and appli- ful value, or that the amount for which the cation of said assessment, and for such oth- bonds were issued was in excess of the er and further assessments authorized and value of the lands, it was a matter for the required to provide for the prompt pay- consideration of plaintiff, or any contemment of this bond and the interest thereon, plative purchaser of the bonds. The law the full faith and resources of said county gave notice that the security was thus limare hereby irrevocably pledged."
ited. While it is true a bona fide holder of This portion of the bond contains its own the bonds such as plaintiff is in this case limitation, and that is that for the prompt should be given great consideration with a performance of the provisions of the bond view of endeavoring to protect all rights as limited by the act, and any further steps such party may have, yet such a holder is necessary to provide for its payment out of no such favored object of the law as that the particular funds created therefor or his rights will totally obscure the rights of out of the lands assessed or to be further other parties who may be equally innocent assessed, the full faith and resources of of any intended wrongdoing. the county are pledged; but it does not It may be said that it is unfortunate that mean that the full faith and resources of the drainage district in question did not the county are pledged for the payment of prove a success, but this cannot alter the the bond out of any other fund or property status of the respective parties, for it was than that provided by the act. If such was a possibility that should have been withthe intention of the officials, they had no in the contemplation of the plaintiff for inauthority for their acts, or if such con- vestigation at the time the bonds were isstruction should be placed upon this lan- sued and purchased. guage, it finds no foundation in the act au- The rights of plaintiff are defined by the thorizing the issuance of the bond.
statutes, and to these rights it must be conNo language of the officials issuing the fined under the general principles of the bond which might be placed therein could law. create a right which the law had not given By this Act of 1909 and its amendments them, nor could they, by any recitation the Legislature has sought to provide a syswhatsoever, place a binding obligation up- tem whereby the low swampy lands of Tenon the county unless some authority so to nessee may be drained at the expense of do existed, nor could they by any such reci- such lands, and inasmuch as the act' protation give life and character to a totally ceeds upon the assumption that the lands invalid obligation, so far as the county gen- will be benefited, it follows that whatever erally was concerned—invalid because no benefits flow from the creation of the drainwarrant for its existence as such could be age district under the act would be in the found in the law which it is claimed was its nature of increased value to the lands prifoundation.
marily, and thus inure to the benefit of the The county officers signing the bonds had landowner, and secondarily such benefits as a right to issue the bonds in the form they the public might derive (a) by reason of did, and such bonds became and are an ob- the locality being made more healthful, and ligation against all the lands within the (b) by reason of increased taxes as the drainage district mentioned, to the extent of lands become more valuable. However, neithe proportionate benefits assessed against ther the consideration of the question of such lands. When the plaintiffs became the public health nor economic benefits would holders of the bonds, the duty rested upon warrant the drainage of such lands at the them to take cognizance of the statutes of expense of those living in sections of the Tennessee which became a part of the county remote from the drainage district bonds. There was nothing compulsory in who in reality derived no benefits theretheir purchase. There were the records of from. The act was sustained upon one the county open for inspection, which dis- ground by the Supreme Court of Tennessee closed the drainage district for the con- because the assessments were fixed against struction of which the bonds were issued. the particular lands sought to be benefited These records showed the lands within the and were not in the nature of general taxes. district, the number of acres, and their lo- By this act the Legislature gave to the cation. There was the legislative act which county judge authority to pass upon the plaintiff was bound to know. It was a mat- questions presented relative to the constructer for plaintiff to investigate. If investi- tion of a proposed drainage district, not as gation would have revealed that the lands the financial agent of the county, but in within the proposed district were of doubt- his judicial and ministerial character re