Alexander v. Board of Directors of Crawford County Levee District

• Decision Date: 23 January 1911
• Citation: 134 S.W. 618,97 Ark. 322
• Parties: ALEXANDER v. BOARD OF DIRECTORS OF CRAWFORD COUNTY LEVEE DISTRICT
• Court: Arkansas Supreme Court

134 S.W. 618

97 Ark. 322

ALEXANDER v. BOARD OF DIRECTORS OF CRAWFORD COUNTY LEVEE DISTRICT

Supreme Court of Arkansas

January 23, 1911

Appeal from Crawford Chancery Court; Charles E. Warner, Special Chancellor; reversed.

Decree reversed with directions to overrule the demurrer to the complaint.

Hill Brizzolara & Fitzhhugh and Jesse Turner, for appellants.

1. The rule of apportionment declared in the amendatory act of April 23, 1909, is unconstitutional.

(a) The power of levying local assessments for local improvements is a branch of the taxing power--and of the taxing power only. It finds its only justification in the theory that it is an exaction upon the property owner in return for special benefits, which the property owner receives by reason of the public improvement for the cost of which the assessment is made. The exaction must be in substantial proportion to said special benefits, and in no case in excess thereof. Page & Jones on Taxation by Assessment, §§ 8, 11, 87, 89 92, 99, 100, 147, 665, 653, 666, 678, 690, 691; 86 Ark. 1; 64 Ark. 258; Cooley on Taxation, 661-2-3; 172 U.S. 269; 65 Pa 146, 3 Am. St. Rep. 63; 57 Miss. 378, 34 Am. Rep. 451; 90 Am Dec. 634, 18 Am. Rep. 729; 69 Pa. 352, 8 Am. Rep. 255; 35 Mich. 155 44 Vt. 174; 51 N.E. 204; 57 N.E. 374; 67 N.E. 359; 48 Ark. 370; 52 Ark. 167; 64 Ark. 555; 68 Ark. 375; 69 Ark. 68; 71 Ark. 17.

(b) The legislative determination of the rule of apportionment on the property assessed, whether the rule be according to the actual value or according to the assessed value, for purposes of general taxation, or according to front footage, or according to area, is entitled to great weight, and will ordinarily be held as prima facie correct; but such presumption is not conclusive. If, therefore, a statute provides a rule of apportionment of taxes for local improvements which, in its practical operation, produces, in the case of any particular land owner, a burden which is not in substantial proportion to the special benefits conferred, or which is in excess thereof, it is, as to such a case, pro tanto invalid; and if a statute on its face provides a rule of apportionment which neither expressly declares that the tax shall be in substantial proportion to said special benefits (and in no case in substantial excess thereof), nor renders it reasonably probable that, in its practical operation, it will produce an apportionment in substantial proportion to said special benefits (and in no case in substantial excess thereof), such statute is, per se, unconstitutional and void. Page & Jones, Taxation by Assessment, §§ 34, 86, 691, 698; 57 Miss. 378, 34 Am. Rep. 651; 69 Pa. 352; 51 N.E. 204; 57 N.E. 379; 67 N.E. 359; 181 U.S. 324; 205 U.S. 138; 21 Ark. 46; Id. 60; 48 Ark. 370; 59 Ark. 513; 72 Ark. 119; 83 Ark. 54; 77 Ark. 283; 78 Ark. 581; 81 Ark. 563.

(c) The statute of April 23, 1909, neither expressly declares that the tax shall be substantially in proportion to special benefits (and in no case in substantial excess thereof), nor does it by its terms render it reasonably probable that in its practical results it will produce an apportionment in substantial proportion to said special benefits, and, in no case, in substantial excess thereof. The statute is therefore unconstitutional and void. Acts 1909, pp. 472 et seq., § 1; 2 Dillon, Municipal Corporations, § 809; Cooley on Taxation, 661-2-3; 35 Mich. 155, 24 Am. Rep. 535.

2. The original act of March 15, 1909, and also the amendatory act of April 23, 1909, are unconstitutional in that they exclude from assessment all that portion of the right-of-way and line of track of the St. Louis, Iron Mountain & Southern Railway, which is situate in said appellee levee district.

(a) The legislative will can be gathered only from the acts as interpreted in the light of existing law, and from this language so interpreted, it appears that it was the legislative purpose to exclude said railway right-of-way and line of track from assessment in the district. Acts 1909, p. 159 et seq., §§ 1, 4, 6 (original act); Acts 1909, p. 472 et seq.; 64 Ark. 432. Compare Acts 1909, p. 109; Id., p. 204; Id., p. 274, § 5; Id., p. 671; Id. 335.

(b) The effect of this legislative determination to exclude the railway right-of-way and line of track from the assessment is, unquestionably, to render the statutes discriminatory and unconstitutional. 52 Ark. 167; 64 Ark. 555; Id. 432; 69 Ark. 68, 78; 71 Ark. 17; 86 Ark. 1; Styles 12 (23 Car. 1); 48 Ark. 370; Id 252; Page & Jones, Taxation by Assessment, §§ 639-40; 197 U.S. 432; 68 Ark. 376; 84 Ark. 391; art. 19, § 27, Const. 1874.

Sam R. Chew and Jesse Turner, for appellants.

It is not within the legislative competency in this State for the General Assembly to create a local subdivision smaller than any political division, with no power of self-defense, either by direct action or through representation, and "endow it with no capacity whatever except to be the bearer of a burden imposed on it without its consent," on the pretext that the landowners in such subdivision will be compensated for bearing these enforced burdens by more or less elusive benefits arbitrarily alleged to be expected to flow from the local works to be erected under the legislative fiat. 24 Mich. 44, 9 Am. Rep. 103; 67 Ark. 30; Cooley on Taxation, 688; 28 Mich. 228; 71 Ark. 556; 84 Ark. 390; Cooley on Taxation (last ed.), 1305-6, 1311, 1312, 1319, 1320-22; Cooley, Constitutional Limitations (3 ed.), 576 and cases cited; 37 N.J. 415, 18 Am. Rep. 730; 9 Dana (Ky.) 513, 35 Am. Dec. 159; 57 Miss. 378, 34 Am. Rep. 451; 83 N.W.130; 43 N.E. 587; 43 Ind. 83; 39 La.Ann. 391; 29 Wis. 400 and 664; 27 Wis. 147; 2 Kan. 115; 51 Ill. 17; Id. 37; Id. 130; 53 Ill. 302; 55 Ill. 133; 74 Ill. 406; 107 Ill. 372; 81 Ill. 49; 3 Heisk. 682; Cooley on Taxation, 1310, note; 67 Ark. 30; 9 Heisk. 349; 24 Am. Rep. 308, 319; Jones & Page, Taxation by Assessment, § 251.

The Carson case, 59 Ark. 513, did not decide the question here presented, because this question was not in that case. Neither do the cases relied on by appellees, 69 Ark. 284, 79 Ark. 228 and 78 Ark. 118, determine this question adversely to appellants. See also as tending to support appellants' contention: 67 Ark. 30; 71 Ark. 556; 84 Ark. 390; 13 Ark. 752; 12 Ark. 101; 42 Ark. 77; art. 2, § 29, Const. 1874; 3 Dallas 386; 39 Ark. 355; art. 2, §§ 1, 2 and 7, art. 3, § 1, art. 4, §§ 2, 3, 4, art. 5, § 25, art. 7, §§ 28, 30, 38, 39, 41, 46, 47 and 50, art. 8, § 1, art. 13, art. 14, § 3, art. 16, §§ 1, 9, 10 and 13, art. 19, § 4, Const. 1874.

E. L. Matlock and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. That the Legislature has power to create a levee district and authorize its commissioners to issue bonds without the consent of inhabitants or property owners residing within its limits has been settled by repeated decisions of this court. 69 Ark. 284; 83 Ark. 54; 79 Ark. 239; 78 Ark. 118; 80 Ark. 324.

2. The assessment for local improvements may be either upon the value of the land or upon an assessment of the benefits. 77 Ark. 384; 81 Ark. 562. The method of assessment provided by the act in this case, while, like all other methods of levying taxes, it will probably work a hardship in some cases, is, nevertheless, probably as just as any that can be devised. And it is not new in this State. Kirby's Dig., §§ 4939, 4942, 4948; 80 Ark. 466. See also 181 U.S. 325; Id. 389; Id. 396; Id. 399; Id. 394; 187 U.S. 544; 197 U.S. 434. This court has held that art. 6, § 5, Const. 1874, which requires assessments to be equal and ad valorem, has no application to assessments for local improvements. 24 Ark. 40; 87 Ark. 9.

3. If the amendatory act should be stricken out as unconstitutional, the only effect will be to reinstate the original act. 85 Ark. 346; 86 Ark. 343; 90 N.W.283; 121 Ind. 514; 16 Am. St. Rep. 411. The original act is not void because, as contended by appellants, no provision is made for the assessment of railroads. The statute provides for the assessment of all the real estate within the district, and the track and right-of-way of a railroad are real estate assessable for local improvements that benefit it. 72 Ark. 125; 68 Ark. 376; 81 Ark. 567.

4. Even if individual assessments should be held to be unconstitutional as taking property without benefit, that would not justify the court in enjoining the work or the issue of bonds by the district. 83 Ark. 54.

OPINION

MCCULLOCH, C. J.

This action involves an attack by landowners on the validity of an act and an amendatory act of the General Assembly of 1909, creating Levee District No. 1 of Crawford County, Arkansas, the name and style of the organization being stated in the act as "Board of Directors of the Crawford County Levee District." The original act, approved March 15, 1909, contains the following section relating to assessments to defray the cost of building and maintaining the levee:

"That for the purpose of building, repairing and maintaining the levee aforesaid, and for the purpose of paying such sums as may be necessary for the condemnation of property as hereinbefore provided, and for carrying into effect the objects and purposes of this act, the Board of Directors of Crawford County Levee District shall have power, and it is hereby made their duty, to assess and levy, annually, a tax upon the valuation as it shall appear each year upon the real estate assessment book of Crawford County, Arkansas, upon all lands and real estate within said district; provided further, that no error in the names of (or) residence of the owner of the land or real estate, or the description thereof, shall invalidate said assessment or levy of taxes, if a sufficient description is given to ascertain where the lands or real estate is situated....