House Bill 439

AN ACT TO AMEND SECTIONS 51-29-15 AND 51-31-9, MISSISSIPPI CODE OF 1972, TO REVISE THE SELECTION OF DRAINAGE DISTRICT COMMISSIONERS FROM APPOINTMENT TO AN ELECTION OF A MAJORITY OF THE LANDOWNERS WITHIN THE DISTRICT; TO AMEND SECTIONS 51-29-19 AND 51-31-1, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT DRAINAGE DISTRICTS AND THEIR COMMISSIONERS MUST COMPLY WITH THE OPEN MEETINGS LAWS; TO AMEND SECTIONS 51-29-17, 51-29-59, 51-29-103, 51-29-151, 51-29-153, 51-31-73 AND 51-31-141, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 51-29-15, Mississippi Code of 1972, is amended as follows:

51-29-15. (1) When the chancery court or chancellor in vacation has established such district, he shall appoint three (3) owners of real property within the district to act as commissioners; and such persons, when so appointed, and their successors in office shall constitute, and are hereby declared to be, a body politic and corporate by the name and style selected as mentioned in this chapter, by the court or chancellor. Each of these commissioners shall take the oath of office as required by Section 268, Article 14 of the Constitution of the state, and shall also swear that he will not, directly or indirectly, be interested in any contract made by the board of commissioners save and except insofar as he may be benefited as a landowner, in common with other landowners, by the work contracted for, and that he will well and truly assess all benefits resulting from said improvements, and all damages caused thereby. Any commissioner failing to take oath within thirty (30) days after his appointment or election and to give bond in the sum of not less than One Thousand Dollars ($1,000.00), to be fixed by the court or chancellor, shall be deemed to have declined to act as commissioner, and his place shall be filled according to subsection (2) of this section. Provided, however, where revenue for a drainage district is less than One Thousand Dollars ($1,000.00) per year from taxes or other sources, the chancellor, in his discretion, may reduce the bond to any amount he may deem sufficient.

(2) All vacancies on the board shall be filled by a special election following the terms of office as stipulated in Section 51-29-17. The provisions of this subsection shall govern the procedure for, and conduct of, any election of the board of commissioners of the district. The board may adopt any rules and regulations pertaining to the election of the board of commissioners of the district that are not inconsistent with and do not conflict with the provisions of this subsection.

(a) Notice of the election of one or more members of the board of commissioners shall be sent by regular United States mail to each real property owner within the district not less than thirty (30) days and not more than sixty (60) days from the election date. The notice shall state the time, place and manner in which the real property owners may vote for the board of commissioners.

(b) The election shall be held in a manner and according to procedures to be established by rules and regulations adopted by the board before the giving of notice of the election and a printed copy of such rules and regulations shall accompany the notice.

(i) To qualify as a candidate, a person shall not be a public official and must be a landowner within the drainage district;

(ii) Notice of the nomination of qualified candidates shall be sent by regular United States mail to the real property owner at least ten (10) days before the date of the election;

(iii) The method of voting on the date of the election shall be by personal attendance at the district's office or by proxy;

(iv) Each real property owner shall have one (1) vote, provided that when a billing for service is made to more than one (1) person at a single address or location, each such person shall be limited to casting a pro rata share of the one (1) vote to which the billing address or location is entitled; and

(v) The time of the election shall be fixed between the hours of 10:00 a.m. and 6:00 p.m. on a day of the week other than Sunday.

(d) A certified public accountant appointed by the board shall count all votes, whether cast by personal attendance or by proxy, and shall certify the results of the election to the board within ten (10) days of the election.

(e) A majority of the commissioners shall constitute a quorum. The chancery court, or chancellor in vacation, shall remove any member of the board of commissioners, on the petition of the majority of the owners of land in the district, who shall own a majority of the acreage therein.

SECTION 2. Section 51-31-9, Mississippi Code of 1972, is amended as follows:

51-31-9. (1) In every county in this state in which there is now a drainage district and in which a drainage district may hereafter be created or be proposed to be created under this chapter, the landowners within such a district shall elect three (3) county drainage commissioners at a special election.

(2) The provisions of this subsection shall govern the procedure for, and conduct of, any election of the board of commissioners of the district. The board may adopt any rules and regulations pertaining to the election of the board of commissioners of the district that are not inconsistent with and do not conflict with the provisions of this subsection.

(i) To qualify as a candidate, a person shall not be a public official and must be a landowner within the drainage district;

(ii) Notice of the nomination of qualified candidates shall be sent by regular United States mail to the real property owner at least ten (10) days before the date of the election;

(iii) The method of voting on the date of the election shall be by personal attendance at the district's office or by proxy;

(v) The time of the election shall be fixed between the hours of 10:00 a.m. and 6:00 p.m. on a day of the week other than Sunday.

(e) The term of office of each commissioner shall be six (6) years and until his successor is selected and has qualified, with said terms expiring at two-year intervals to insure the selection of one (1) new commissioner every two (2) years. * * *

* * *

SECTION 3. Section 51-29-19, Mississippi Code of 1972, is amended as follows:

51-29-19. The said commissioners may adopt a common seal of the drainage district and alter the same at pleasure. They may, from time to time, make such bylaws, rules, and regulations, and alter and change the same as they may deem proper, not inconsistent with this chapter and the laws of this state, for the purpose of carrying into effect the object of their incorporation. They shall elect a president from their own number and appoint such other officers, agents, and attorneys, and employ such persons as they may think necessary for the efficient management of their business, and remove them at pleasure. Commissioners shall comply with the requirements of Section 25-41-1 et seq. They may do all acts and things not inconsistent with this chapter and with the laws of the state, and proper to effect the purpose and objects of this chapter.

Upon their qualification, the board of commissioners shall prepare plans for the improvement within the district, as prayed for in the petition, and shall procure estimates from a competent engineer or engineers as to the cost thereof. For that purpose, the board of commissioners may employ such engineers and other agents as may be needful, such engineer to give bond in the sum of at least One Thousand Dollars ($1,000.00), payable to the drainage district and conditioned for the faithful performance of the duties required of the engineer, which bond shall be approved by the board of commissioners, or the president. Said board of commissioners may employ the services of an attorney or a firm of attorneys as may be needed in the prosecution of the work for which the drainage district is organized, may employ such other agents as may be needed, may purchase such material and supplies, and pay for such publications and printing necessary or incidental in the prosecution of the work. Said board of commissioners shall provide for reasonable compensation to the engineer or engineers, attorneys, and other agents, and for the cost of such material, supplies, publications, and printing, and the same shall be taken as a part of the costs of the improvements; or said board of commissioners may borrow money necessary to pay for the services of the engineer or engineers, attorneys, and other agents, and for the cost of such material, supplies, publications, and printing, at a rate of interest not exceeding six per cent (6%), per annum, and may execute a note or notes or other evidences of indebtedness therefor and may renew the same as may be necessary, and the money borrowed for such purposes shall be taken as a part of the costs of the improvements.

SECTION 4. Section 51-31-1, Mississippi Code of 1972, is amended as follows:

51-31-1. Each drainage district heretofore organized in this state and each drainage district hereafter organized therein shall be a body corporate, shall have authority to sue in its own corporate name and be sued therein, may contract and be contracted with, may plead and be impleaded, and where organized or operating under the provisions of this chapter in its name may do and perform any and all things necessary and authorized by this chapter. All such acts may be done by its commissioners in the name of the district.

As an alternative to any existing right, power, and authority given to any drainage district operated by a board of county drainage commissioners, or to such commissioners, by the laws of the State of Mississippi now or hereafter enacted, all the provisions of the statutes of the State of Mississippi now or hereafter enacted relative to drainage districts operated by local commissioners, and to such local commissioners, shall apply to any drainage district heretofore or hereafter organized and operated by a board of county drainage commissioners, and to such commissioners. Commissioners shall comply with the requirements of Section 25-41-1 et seq.

SECTION 5. Section 51-29-17, Mississippi Code of 1972, is amended as follows:

51-29-17. The commissioners appointed as aforesaid shall hold their offices, one (1) for two (2) years, one (1) for four (4) years, and one (1) for six (6) years, from the date of their appointment and until their successors are elected and installed. On the expiration of their terms of office, their successors shall be elected for the term of six (6) years thereafter. They shall hold their meetings at any time and place in the county or counties in which any part of the district is situated, upon the call of the president.

The commissioners herein provided for shall receive per diem compensation as provided by Section 25-3-69, together with mileage as provided in Section 25-3-41 for the distance traveled from their homes to and from the place of meeting.

SECTION 6. Section 51-29-59, Mississippi Code of 1972, is amended as follows:

51-29-59. (1) The board of commissioners herein mentioned shall have control of the construction of the improvements in their districts. They may make purchases and contracts in accordance with Section 31-7-13.

(2) The chancery court or chancellor in vacation may remove any commissioner * * *, upon proof of incompetency or neglect of duty; but the charge shall be in writing, and such commissioner shall have the right to be heard in his defense and to appeal to the circuit court.

SECTION 7. Section 51-29-103, Mississippi Code of 1972, is amended as follows:

51-29-103. Any district which has heretofore been organized, including swamp land districts, or which may hereafter be organized under other statutes, may become a district under the terms of this chapter as follows:

If a third of the landowners owning a majority of the acreage or a majority of the landowners owning a third of the acreage of real property within any such district shall petition the chancery court, or chancellor in vacation, to constitute them a drainage district under the terms hereof, the clerk of the chancery court shall give notice of the application by two weeks' publication in some newspaper published and having a bona fide circulation in the county or counties in which the lands of said district lie, stating the time when said petition will be heard and the object of said petition. All owners of real property within the district shall have the right to appear and contest the said petition, or support the same. The chancery court, or chancellor in vacation, shall hear the evidence and shall either grant the petition or deny the same, as he may deem it most advantageous to the property owners of the district and to the public benefit. If he grants the petition, the said district shall have all the rights and powers and be subject to all the obligations and provisions provided by the terms of this chapter. If the majority of the landowners or the majority of the owners of the acreage therein petition for the adoption of this chapter, the court or chancellor must make an order declaring that such district shall henceforth be governed by the terms of this chapter, and shall appoint or elect commissioners according to its terms, who shall carry into effect without delay the proposed drainage improvements.

SECTION 8. Section 51-29-151, Mississippi Code of 1972, is amended as follows:

51-29-151. In the event of such consolidation as provided in Sections 51-29-145 through 51-29-157, the court or chancellor in vacation immediately shall proceed to name said consolidated district, and to appoint to govern the same a board of commissioners to consist of five (5) members, three (3) of whom shall constitute a quorum for the transaction of business, and who shall possess the same qualifications now required by law for drainage commissioners. Two (2) of such commissioners shall be appointed for a term of two (2) years, two (2) for terms of four (4) years, and one (1) for a term of six (6) years, and all shall serve until their successors are elected. Upon the expiration of the initial term of any commissioner, his successor shall serve for a term of six (6) years and until his successor is elected. The commissioners so appointed or elected shall take and subscribe the oath required by law, and enter into bond for the faithful performance of their duties in a penalty to be fixed by the court or chancellor, to be approved by the clerk of said court.

SECTION 9. Section 51-29-153, Mississippi Code of 1972, is amended as follows:

51-29-153. When said board of commissioners of said consolidated district have been appointed or elected and have qualified as required by law, the several boards of commissioners of the said separate drainage districts shall cease to exist, and their power and authority shall terminate. They shall be divested of all of the power and authority theretofore vested in said several boards of commissioners, and all of their said power and authority and jurisdiction in respect to the territory and drainage improvements of their said respective separate districts shall vest in, and thereafter be exercised by, said board of commissioners of said consolidated district.

SECTION 10. Section 51-31-73, Mississippi Code of 1972, is amended as follows:

51-31-73. The commissioners may, after the organization of said district, do any and all acts that may be necessary in and about the surveying, laying out, constructing, repairing, altering, enlarging, cleaning, protecting, and maintaining any drain or ditch or other work for which they have been appointed or elected. They and their successors shall have charge of said ditch in perpetuity, and shall annually see that the same is cleaned out and all obstructions, brush, willow, or other growth removed therefrom, to the end that said ditches shall be kept thoroughly cleaned and in good repair so as to perfectly drain said lands. For those purposes, the commissioners may borrow money in anticipation of the collection of already levied taxes not to exceed in any one (1) fiscal year one percent (1%) of the amount of the benefits assessed against all of the real property in the district, at an overall maximum interest rate to maturity not greater than that allowed in section 75-17-105. They may issue in evidence thereof tax anticipation warrants, which warrants shall be paid solely and only out of the first funds collected from taxes levied prior to the borrowing of such funds and issuance of such warrants; and they may make additional assessments from time to time, as necessity may require, to pay for the expense of maintaining, cleaning out, and keeping in repair the ditches of said district and meeting the legal obligations of such district. The additional assessment for maintaining, cleaning out, and keeping in repair the ditches of said district and meeting the legal obligations of such district shall be made by the commissioners in the following manner: on or before the first Monday in September of each year the drainage commissioners shall assess on each tract of land or other property in the district, in proportion to the original and supplemental benefits assessed for construction, such an amount as is necessary to pay the expense of maintaining, cleaning out, and keeping in repair the ditches of said district and meeting the legal obligations of such district, and shall certify their assessment to the board of supervisors of the county in which the land lies; and it shall thereupon become and be the duty of the board of supervisors to levy a tax in accordance with such assessment sufficient to meet said expense of maintaining, clearing out, and keeping in repair the ditches of said district. The said tax levied shall be apportioned to and levied on each tract of land or other property in said district in proportion to the original and supplemental benefits assessed for construction, or as otherwise provided by law. As soon as the said tax levy is made, the secretary of the commission, at the expense of the district, shall prepare an assessment record of the district, which may contain any number of columns therein, in which may be inscribed the tax levied each year. He shall place therein the amount of the levy for the year, and the said record shall be certified by the commissioners, attested by the seal of the district, and filed with the tax collector of the county in which the land is located. The said secretary shall make a copy for each county in which any lands of the district may be situated, but only the lands situated in the county need be inscribed therein. Any person aggrieved at the action of the board of supervisors in levying the tax herein provided shall have the same right of appeal as is provided by law for appealing from the action of said board in levying county taxes. All taxes hereunder assessed and levied shall be collected at the same time and in the same manner as are state and county taxes, and the same penalties shall accrue for the nonpayment thereof as for nonpayment of state and county taxes. In the event a drainage ditch shall be totally destroyed by the construction of public levees, the drainage district commissioners shall strike the land affected by such destruction from the assessment rolls of the district; but such action shall in no way affect the lien of the bondholders of the district upon such land.

SECTION 11. Section 51-31-141, Mississippi Code of 1972, is amended as follows:

51-31-141. Any district which has heretofore been organized, including swamp land districts, or which may hereafter be organized under other statutes may become a district under the terms of this chapter as follows:

If a third of the landowners owning a majority of the acreage or a majority of the landowners owning a third of the acreage of real property within any such district shall petition the chancery court or chancellor in vacation to constitute them a drainage district under the terms hereof, the clerk of the chancery court shall give notice of the application by two (2) weeks' publication in some newspaper published and having a bona fide circulation in the county or counties in which the lands of said district lie, stating the time when said petition will be heard and the object of said petition. All owners of real property within the district shall have the right to appear and contest the said petition, or support the same. The chancery court, or chancellor in vacation, shall hear the evidence and shall either grant the petition or deny the same, as he may deem it most advantageous to the property owners of the district and to the public benefit. If he grants the petition, the said district shall have all the rights and powers and be subject to all the obligations and provisions provided by the terms of this chapter. If the majority of the landholders or the majority of the owners of the acreage therein petition for the adoption of this chapter, the court or chancellor must make an order declaring that such district shall henceforth be governed by the terms of this chapter, and shall appoint or elect commissioners according to its terms, who shall carry into effect without delay the proposed drainage improvements.

SECTION 12. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 13. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.