EN BANC. This cause was submitted to and decided by Division B of the court. On that hearing the decree of the court below was affirmed. Thereafter a suggestion of error was filed by appellant, followed by an order entered, setting aside the judgment of affirmance, and remanding the cause to the docket for consideration and decision by the court en banc. The court enbanc, after argument and consideration, adopts the opinion handed down by Division B, and in addition the following opinion.
Ritchie v. Franklin County, 22 Wall. 67, 22 L. Ed. 825, supports the opinion handed down in this case. The Constitution of Missouri prohibited local or special legislation on the subject of the construction and maintenance of public roads and the issuance of bonds therefor. Franklin county in that state issued and sold bonds for the purpose of macadamizing and bridging certain of its roads. The statute under which the bonds were issued *Page 548 and sold required that the expenditure be first approved by the voters. This was not done, and for that reason the supreme court of Missouri held the bonds void. Steines v. Franklin County, 48 Mo. 167, 8 Am. Rep. 87. The legislature of Missouri thereupon passed a general curative act applying to the whole state by which all road bonds theretofore issued in any county of the state without authority of law were validated. The supreme court of the United States, as well as the supreme court of Missouri, held the curative act valid. In deciding that question the supreme court of the United States used this language: "There is no provision in the constitution of Missouri restraining the General Assembly from conferring on counties the authority to borrow money to improve their roads without asking the consent of the voters. If so, why cannot the legislature confer on counties the power to borrow money to pay for debts already contracted for this purpose. We agree with the supreme court of Missouri, that the act in question being an authority to do a particular thing, may be construed as an original power, but whether it be treated as an original power or as curative and confirmatory legislation, it is equally valid."
There is some force in the thought that chapter 278 of the Laws of 1926 merely embodied a handful of local laws passed in a single act; but the Missouri statute upheld by the supreme court in the above case was exactly that character of statute. The constitutional requirement that a certain character of laws shall be general, and not local, does not prevent a reasonable classification by the legislature. That decision of the Federal supreme court is in line with the decisions of this court. Cox v. Wallace, 100 Miss. 525, 56 So. 461; Toombs v. SharkeyCo., 140 Miss. 676, 106 So. 273; State ex rel. Knox,Atty.-Gen., v. Speakes, 144 Miss. 125, 109 So. 129. Cox v.Wallace involved the constitutionality of section *Page 549 371, Code of 1906. Sections 371 to 391, inclusive, of the Code of 1906, provide for the establishment and maintenance of drainage districts in the state. Section 371 provides that the act shall not apply "to land overflowed by backwaters of the Mississippi." Considerable territory in the Delta section of the state is subject to overflow by backwaters of the Mississippi river. Paragraph (q) of section 90 of the Constitution provides, among other things, that the legislature shall not pass local or special laws relating to water courses. The drainage statute under consideration in that case related to water courses. It was contended that it was a local or special act, because it did not apply to the whole state, and therefore violative of the Constitution. The court held that the exception in the statute of that territory in the state overflowed by the backwaters of the Mississippi river did not make the act a local or special law. InState ex rel. Knox v. Speakes, the court, in discussing the distinction between local or special laws and general laws, used this language: "In determining the question whether an act is a general law or a local or special law, the courts will look to the substance and practical operation of the law, rather than to its form and phraseology. The constitutional requirement that certain character of laws shall be general and uniform in their operation does not prevent a reasonable classification by the legislature. A law is general in the sense of such a constitutional provision when it applies to and operates uniformly on all members of any class of persons, places, or thing requiring legislation peculiar to the particular class dealt with by the law. A law is general and uniform, although it does not operate on every person in the state. It is general and uniform if it operates on every person who is brought within the classification and circumstances provided for by the law. Where a law is broad enough to reach every portion of the state and to embrace within its provisions every person and thing distinguished by marked characteristics *Page 550 of sufficient importance to make them clearly a class by themselves, it is not a local or special law, but a general law,`even though there be but one member of the class or one placeon which it operates.' [Italics ours.] 25 R.C.L., section 66, p. 815, at page 818. In the case of Toombs v. Sharkey, 140 Miss. 676,106 So. 273, at page 275, the language above quoted from 25 R.C.L., section 66, p. 818, is quoted with approval."
The statute here under consideration makes a class of all road districts organized prior to its passage under any of the road laws of the state, and validates such districts and the bonds issued therefor. The statute operates uniformly on all the members of the class, and all the members of the class are marked by like characteristics. The act is general, not special; it covers the whole state, not part of the state, regardless of where the road district is situated.
In view of the large public interests involved in the attack on the constitutionality of chapter 277 of the Laws of 1920 (many millions of dollars of road bonds having been issued under the act, and now outstanding) the court is asked to pass on that question, as well as the constitutionality of the local act, chapter 1080 of the Laws of 1926, by which the legislature undertook to validate the particular road district here involved, and the bonds issued therefor. We feel constrained for the reasons suggested to do so.
Appellant contends that chapter 277 of the Laws of 1920 is violative of both the due process and the equal protection clauses of the Fourteenth Amendment to the Federal Constitution. In considering these questions it should be borne in mind that the road district involved is an ad valorem taxing district, and not a special benefit assessment district. The property of the district, both real and personal, is taxed for state and county purposes in proportion to its assessed value, upon an advalorem *Page 551 basis, and is likewise taxed under the act for road purposes. The act makes no distinction between real and personal property.
The main case relied upon by appellant to sustain its position that the statute denies to the property owners of the district due process is Browning v. Hooper, 269 U.S. 396, 46 S. Ct. 141, 70 L. Ed. 330. In that case it was held that, where a local road district was created by petition of a certain per cent of the taxpayers of the territory composing the district, and there was no legislative determination that the property in the district would be benefited by the proposed local improvement, notice to the property owners of the district, and an opportunity to be heard, was essential to due process. The Texas statute, held to violate due process in that case, did not itself create the district, levy the taxes, or fix the amount to be raised for road purposes. There was nothing in the statute to guide or limit the action of the signers of the petition in selecting the property to be assessed and taxed. Subject to a vote of the district, the territory to be taxed was absolutely fixed by the petitioners. The county court had no power to deny the petition. It was bound under the statute to organize into a taxing district the territory as described in the petition. The court said, among other things: "But it is essential to due process of law that such owners be given notice and opportunity to be heard on that question where, as here, the district was not created by the legislature, and there has been no legislative determination that their property will be benefited by the local improvement. Appellants were denied all opportunity to be heard. No officer or tribunal was empowered by the law of the state to hear them, or to consider and determine whether the road improvements in question would benefit their lands. The act is repugnant to the due process clause of the Fourteenth Amendment." *Page 552
The court further stated, however, that, where a local improvement territory is selected, and the burden is spread by the legislature, or by some local administrative board to which the state has granted legislative powers on the subject, the property owners had no constitutional right to be heard, and, therefore, there was no denial of due process. St. L. S.W. Ry.Co. v. Nattin, 277 U.S. 157, 48 S. Ct. 438, 72 L. Ed. 830, involved the constitutionality of a road statute of Louisiana. Under the laws of that state the police juries of the parishes are the governing bodies of the respective parishes. The statute empowered the police juries to create road districts from such portions of their parishes as they might determine, and, with the approval of the voters of the district, to issue the bonds of the district and construct roads from the proceeds thereof. The constitutionality of the statute was challenged upon the ground that it failed to provide the taxpayers of the district with an opportunity to be heard. The court said that the sufficiently short answer to the contention was that under the repeated decisions of the supreme court that was not essential; that the tax sought to be enjoined in that case was a general ad valorem tax, and that its legality did not depend upon the receipt of any special benefit by the taxpayers; that other statutes of the state provided ample opportunities for the taxpayers to contest the value of their property for the purpose of taxation; that a local legislative body, as was the police jury, when properly authorized, could levy a general ad valorem tax upon all property within its jurisdiction, including common carriers engaged in interstate commerce, without violating the Federal Constitution — citing Valley Farms Co. v. Westchester,261 U.S. 155, 43 S. Ct. 261, 67 L. Ed. 585; Hancock v. Muskogee,250 U.S. 454, 39 S. Ct. 528, 63 L. Ed. 1081.
Now, applying these decisions of the supreme court to the act here involved: If the act confers upon the board of supervisors the legislative discretion of determining *Page 553 whether or not the territory described in the petition shall be organized into a road district, notice and an opportunity to be heard on the part of the taxpayers is not required. Putting it differently, if, in the organization of a road district under the statute, the board of supervisors acts in a legislative capacity, and not in a judicial capacity, and has the legislative discretion to organize, or refuse to organize, the district petitioned for, as they may deem to the best interest of those concerned, then an opportunity to be heard on the part of the taxpayers is not required. Can the act reasonably be so construed?
The provisions of section 2 of the act, which is copied in the opinion handed down in this case, furnish the principal grounds of attack on the constitutionality of the act. Appellant contends that this section of the act made it mandatory on the board of supervisors to organize the road district petitioned for, and that the board had no legislative or other discretion in the matter. We think this question has been, to a large extent, determined against appellant's contention. Chapter 277, Laws of 1920, is amendatory of chapter 176, Laws of 1914; chapter 145, Laws of 1912, and chapter 149, Laws of 1910. So far as they affect the questions here involved, sections 1, 2, and 3 of the act (sections 8429 to 8431, inclusive, of Hemingway's Code of 1927), have been substantially the same in all four acts. InRobinson v. Itawamba County, 105 Miss. 90, 62 So. 3, a road district was organized under chapter 149 of the Laws of 1910. The board of supervisors thereafter passed a resolution providing for the issuance and sale of the bonds of the district for the purpose of constructing improved highways. No further steps were taken by the board. On demand of interested parties, the board refused to proceed with the issuance and sale of bonds. Mandamus was sued out to force the board to proceed with the issuance and sale of bonds and construction of the roads. The *Page 554 court held that the board of supervisors could not be forced to issue and sell bonds for two reasons, namely, because the board had the right, under the statute, to exercise its discretion as to whether or not it would do so, and that the law furnished an adequate remedy by appeal to the circuit court from the action of the board in refusing to issue the bonds. The language of section 2 of the statute in reference to the organization of road districts is not any more imperative than the language of section 3 with reference to the duty of the board to issue bonds of the district after the district has been organized. Bryant v.Yalobusha County, 133 Miss. 714, 98 So. 148, does not hold to the contrary. The road district involved in that case was organized under the statute here under consideration. It was held that, if the board of supervisors organized a road district under the act, it had to be the district petitioned for — that the board had no authority under the act to organize either a larger or a smaller district. The question whether, under the act, the board was vested with the discretion whether or not it would organize any road district whatever, was not involved nor decided in that case. In Prather v. Googe, 108 Miss. 670, 67 So. 156, chapter 176 of the Laws of 1914, of which the act involved is amendatory, was challenged as unconstitutional on at least two grounds, one of which was that it violated section 170 of the Constitution, in that it encroached on the jurisdiction of the board of supervisors over public highways. It is true, the identical question here involved was not decided in that case, but the court said, in broad language, that the act did not take away from the board of supervisors its discretionary powers over public roads. Construing the statute in the light of section 170 of the Constitution, vesting in the board of supervisors jurisdiction over roads, bridges, and ferries, and the above decisions of our court, we are of the opinion that the act vested in the board of supervisors the legislative discretion to organize *Page 555 or refuse to organize, according to their judgment of the best interests of those concerned, the road district petitioned for; that although, under the Yalobusha county case, if a district is organized, it must contain the territory embodied in the petition — no more, no less — still the board is vested with the discretion of deciding whether the benefits to be derived from the proposed district will be justified by the necessary tax burdens. So construing the statute, it comes within the principles laid down by the supreme court in the Louisiana case [St. Louis S.W. Ry. Co. v. Nattin, 277 U.S. 157, 48 S Ct. 438, 72 L. Ed. 830], and falls without the class of statutes held by the supreme court as denying the process, in the Texas case [Browning v. Hooper, 269 U.S. 396, 46 S. Ct. 141, 70 L. Ed. 330.]
But, if there were any illegality in the organization of the road district and in the issuance of the bonds therefor, such illegality would be cured by the local act, chapter 1080, Laws of 1926, as well as by the general curative act already discussed. The local act did not violate paragraph (l) of section 90 of the Constitution, which prohibits local or special legislation on the subject of laying out, opening, altering, or working public highways. Robertson v. Leflore County, 112 Miss. 54, 72 So. 852, is decisive of this question. Chapter 424 of the Laws of 1916 was involved in that case. The act authorized the board of supervisors of Leflore county to issue the bonds of that county to an amount not exceeding six hundred thousand dollars for the purpose of improving the public roads of the county. The bonds were issued under the act, and the validity of the act was challenged, on the ground that it violated paragraph (l) of section 90 of the Constitution. That was the only question in the case. The court held the act constitutional, because it did not provide for the laying out, opening, altering, or working of public roads, but provided alone for the *Page 556 raising of revenue for that purpose; that the act had nothing to do with the method by which public roads were to be laid out, opened, altered, or worked, that being covered by the general laws of the state on the subject. Under the authorities cited in the opinion handed down in this case, the legislature has the power, by a subsequent act, to make valid, proceedings had under a prior void act, provided, under the Constitution, it originally could have authorized the proceedings had. In the light of this principle, the Robertson case means that, if Leflore county had issued road bonds without any authority of law, the legislature could, by a subsequent local act, applying alone to that county, have validated such bonds. In that case the local act authorized the issuance of the bonds of the county. In the present case, the local act validated the organization of the district and the bonds issued therefor. We see no difference in principle. The organization of a road district is a step further removed from the laying out, opening, altering, or working of public roads, than the issuance of the bonds of such a district. If the issuance of the bonds could be validated by a local act, the organization of the district could likewise be validated.
Appellant contends that chapter 277 of the Laws of 1920 also violates the equal protection clause of the Fourteenth Amendment, because it is unreasonably discriminatory per se, in that the burden of taxation is not spread over the district in proportion to the benefits, but only in proportion to the accidental facts, including the general wealth of the individuals and corporations chancing to have taxable property in the district; and for the further reason the act authorizes the taxation of real and personal property, based on its general assessed valuation, to pay the cost of local improvements to real property. To sustain that position, appellant relies on Road Improvement Dist No. 1 v. Missouri Pacific R.R. *Page 557 Co., 274 U.S. 188, 47 S. Ct. 563, 71 L. Ed. 992, and other decisions of the supreme court along the lines of that case. The taxing district involved in that case was not an ad valorem district, but a special benefit assessment road district. The assessment against the railroad company for road improvements was based upon personal property, as well as real property, while all other assessments in the district were confined to real property alone. The assessment against the railroad was thirteen and two-tenths per cent of the costs of a hard-surface road paralleling the railroad. The area of the railroad in the road district was eight-tenths of one per cent of the entire area of the district. The court held that the assessment was plainly arbitrary and discriminatory, and violative of both the due process and the equal protection clauses of the Fourteenth Amendment.
We have no such case here. All property in the district involved in this case, both real and personal, on which an advalorem tax is levied for general state and county purposes is likewise levied for road purposes of the district. Appellant lays stress on the following facts: The area of the district is two thousand nine hundred fifty acres, of which appellant owns only fifty-seven and seventy-nine hundredths acres, which is one and nine-tenths per cent of the whole acreage; the assessed valuation of appellant's property in the district is sixty-two and thirty-nine hundredths per cent of the entire assessed valuation of the district. The evidence showed, however, that the proceeds of the bonds issued for the district had been expended on public roads, and none of the roads constructed ran parallel with the appellant's line of railroad, but nearer at right angles with it; that the road district was composed of a little less than five sections, but that the sections were not strung along, one after the other, so as to take in as much of appellant's line of railroad as could be done; and, furthermore, the evidence tended to show, and the chancellor found as facts, that the improved *Page 558 roads in the district would benefit appellant's business as a common carrier, both directly and indirectly — that the direct benefit would be derived from an increased tonnage for appellant from the gravel mines in the district, which gravel mines were made more accessible to miners by virtue of the improved roads. In other words, that the improved roads increased the labor facilities in the gravel mines to such an extent that the output of the mines would be materially increased, the output of the mines being transported alone over appellant's lines of railroad. We are unable to see that the operation of the statute has worked any arbitrary and unreasonable discrimination against appellant. We do not think the cases relied on by appellant at all decisive in favor of appellant's contention.
The only other question which we think calls for discussion by the court is appellant's contention that proof of publication of the notice of the bond election was not on file with the board of supervisors when the board declared the result of the election, and provided by resolution for the issuance of the bonds. Appellant contends that proof of publication of the notice was jurisdictional — that it had to appear on the minutes of the board before provision was made for the issuance of the bonds. If appellant's position in that respect be sound, it appears that a complete and short answer to the contention is that the failure of the board to have proof of publication of notice on file, and spread on its minutes, was cured by both the general and local validating acts already discussed in this opinion.
Affirmed.