School Dist. v. Board of Improvement of Sewer Dist. No. 1

• Decision Date: 28 May 1898
• Citation: 46 S.W. 418
• Parties: SCHOOL DIST. OF FT. SMITH v. BOARD OF IMPROVEMENT OF SEWER DIST. NO. 1 OF FT. SMITH.
• Court: Arkansas Supreme Court

Page 418

46 S.W. 418

SCHOOL DIST. OF FT. SMITH v. BOARD OF IMPROVEMENT OF SEWER DIST. NO. 1 OF FT. SMITH.

Supreme Court of Arkansas.

May 28, 1898.

Appeal from circuit court, Sebastian county; Edgar E. Bryant, Judge.

Suit by the board of improvement of sewer district No. 1 of the city of Ft. Smith against the school district of Ft. Smith. From a decree in favor of plaintiff, defendant appeals. Affirmed.

The board of improvement of sewer district No. 1 of Ft. Smith, Ark., brought suit against a large number of tracts of land within its district as delinquent for the improvement taxes for the year 1896. Among other defendants was the school district of Ft. Smith, and various tracts of land owned by it. The complaint is drawn in strict conformity to sections 5340-5345, Sand. & H. Dig. The school district filed a demurrer and an answer to this complaint. The answer set forth: (1) A denial of the assessment of the property set forth in the complaint, and a denial that such assessment was delivered to the city clerk; and denies that the officer authorized by law to collect the same published notice of the collection, and that return was made by the proper officer of the delinquent list. (2) That it is a public corporation, and its property is not subject to the taxes of plaintiff district. The court found in favor of the plaintiff, and rendered judgment against the property of the school district, and by default against the other property embraced in the complaint, belonging to other defendants. In addition to the tax and penalty found due against each of the tracts, the court fixed a commissioner's fee of $2 and an attorney's fee of $5, to be included in the costs. The school district excepted to the findings and judgment. The other defendants did not. The commissioner's fee was put at $1 per tract if paid on or before sale, and $2 if sold. The usual order of foreclosure and sale was made. The decree is in strict conformity to sections 5345, 5349-5351, Sand. & H. Dig. Subsequently the school district filed a motion for correction of the judgment, and to set the same aside, so far as concerned the commissioner's and attorney's fees. The court modified the commissioner's fee by making it $2 in case of sale, and no fee when property was paid on before sale, and changed the attorney's fee from $5 for each tract to $175 for prosecution of the case in circuit and supreme courts.

The case, as between appellee and the school district, was tried upon the following agreed statement of facts, treated herein as a bill of exceptions, to wit: "On the hearing of this cause it was agreed that sewer district No. 1 of the city of Ft. Smith was regularly organized, and improvement district taxes for sewer purposes were regularly extended against the property in the sewer district for the year 1896, as required by law, including the property of defendant school district, as hereinafter described. Such taxes were regularly made up, and, with a warrant for their collection, the tax list was delivered to Milton P. Boyd, collector of plaintiff district, as required by law. That pursuant to the warrant of the city clerk, and the statutes in such cases provided, the said Boyd gave the notice required by law for the collection of said taxes, and opened his office and the books at the time and place specified in said notice. That, all of the time specified in said notice, the collections were properly made by said Boyd, and he was recognized by the public, by the board of improvement of sewer district No. 1, and by the city clerk and county clerk as the collector of said district, and did collect about the usual amount of taxes which are collected each year by the collector before the penalty attaches. That during the year 1895 the improvement districts of the city of Ft. Smith, including plaintiff board, joined in a suit in equity against the city of Ft. Smith, the city collector, and the city clerk, seeking to enjoin the city from proceeding, the collector from acting as collector of improvement taxes, and the city clerk from delivering the warrant and tax list to the city collector. That by said judgment and decree of Sebastian circuit court for the Ft. Smith district the city clerk was enjoined from delivering the tax book and warrant to the city collector, and the city collector was enjoined from collecting improvement taxes, and the city of Ft. Smith was enjoined, through its officers and agents, from collecting or receiving any part of the improvement taxes. That the said judgment was based upon the ground that the act of 1895, requiring these collections to be made by the city collectors in cities of the first class, was unconstitutional and void. That subsequent to the decree aforesaid the defendant therein appealed the said case to the supreme court of Arkansas, and said injunction was dissolved on the day before the time for the collection of the taxes of 1896 expired. That on the day that the time expired the city collector sought by mandamus to have the custody of the said tax list, and the court aforesaid refused said petition for mandamus on the ground that the mandate of the supreme court had not been filed. That a few days thereafter said mandate was filed, but after the date of the time for collecting the taxes of 1896 had expired. When said mandamus was issued, the city collector got said books, and advertised that he would then collect the taxes; and, within a few hours after such advertisement appeared, the Sebastian circuit court enjoined him from collecting said taxes, upon the ground that the time for collection had expired. That said Boyd had been elected collector of plaintiff district at its organization, in 1888, and had continued from that time to collect the taxes, under and by direction of the board, as its collector. That for 1896 he completed the full time allowed by law, without let or hindrance from any one, and, as soon as the time expired, made his return of the delinquent property, and all of the property hereinafter described was so returned; and he attached the penalty of 20 per cent., and the board ordered suit. Subsequently the city collector also made a return of this property, among others, as delinquent. That Boyd made return several days before the court ordered the tax book delivered to the city collector. That, during all the time fixed by the law for the collection of 1896, the city collector was under injunction from Sebastian circuit court from collecting these taxes. That the school district of Ft. Smith owns the property in the judgments described, but none is used for school houses or grounds attached, or part of the school houses, or inclosures for school purposes. Nearly all of it is vacant and unoccupied lots and blocks, and the remainder improved lots and blocks, which are rented, and the revenue therefrom turned into the school district for school purposes. That all of said lands have been acquired by purchase at mortgage foreclosure sales and execution sales for the recovery of money loaned by said district, and at public sale made under act of congress donating the old military reserve to the city as trustee for the school district. The school district owns a fee-simple title to all the land in the judgment described, and has not paid the sewer taxes, nor offered to Boyd or the city collector, either, to pay the sewer taxes for the year 1896."

Charles E. Warner, for appellant. Hill & Brizzolara, for appellee.

WOOD, J. (after stating the facts).

The first question is, does the act of 1881, authorizing the organization of improvement districts, and the assessment of real property for local improvement, include within its provisions lands belonging to the public schools, but which are not used exclusively for public purposes? Section 5321, Sand. & H. Dig., provides for the assessment by the counsel of any city of the first or second class, or any incorporated town, "of all real property within such city, or within any district thereof, for the purpose of making any local improvements of a public nature." Section 5330, Sand. & H. Dig., provides that "the words real property whenever used in this act, shall have the same meaning and specification as are attached to said words in the act providing for the collection of state, county, and city revenue." The term "real property," in the act providing for the collection of the general revenue, means and includes, "not only the land itself, whether laid out in town lots or otherwise, with all things therein contained, but also all buildings, structures and improvements, and other fixtures of whatever kind thereon, and all rights and privileges belonging or in any wise appertaining thereto." Sand. & H. Dig. § 6401. The fact that the legislature enacted, in the law creating improvement districts, that the term "real property," as therein used,...