Board of Directors of Crawford County Levee District v. Dunbar

• Decision Date: 10 March 1913
• Citation: 155 S.W. 96,107 Ark. 285
• Parties: BOARD OF DIRECTORS OF CRAWFORD COUNTY LEVEE DISTRICT v. DUNBAR
• Court: Arkansas Supreme Court

155 S.W. 96

107 Ark. 285

BOARD OF DIRECTORS OF CRAWFORD COUNTY LEVEE DISTRICT v. DUNBAR

Supreme Court of Arkansas

March 10, 1913

Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor reversed.

Decree reversed and cause remanded.

E. S Matlock, for appellant.

1. The court erred in sustaining the demurrer. It is within the power of the Legislature to tax all lands in the original district to pay the initiatory expenses of said original district. 97 Ark. 322; 72 Id. 119; 81 Id 562; 83 Id. 54; Ib. 344; 98 Id. 113.

2. No issue can be raised in the courts as to notice of special legislation. 48 Ark. 570; 72 Id. 119; 75 Id. 120.

3. The contention of appellee that it was the intention of the Legislature to let his lands out of the district because they would not be benefitted is not well taken. 76 Ark. 113.

P. C Barksdale and J. E. London, for appellee.

1. It is the province of the court to declare a tax void when the Legislature exceeds the Constitutional limits of its powers. 101 U.S. 153; 43 Cal. 335; 13 Am. Rep. 143; 19 Kan. 584; 59 Mo. 415; 20 Wall. 655; 22 F. 54. Whether a particular object of taxation is public or private is a judicial and not a legislative function. 107 F. 827; 111 Mass. 454; 15 Am. Rep. 39; 32 Conn. 118; 86 Minn. 111; 20 Wall. 655.

2. Local burdens require local benefits. 57 Ark. 554; 45 Ala. 370; 105 U.S. 275; 103 Id. 562; 97 Id. 284; 57 Ark. 554. One locality can not be taxed for the benefit of another. 57 Ark. 554.

3. Only those who are benefitted can be taxed. Taxation must be equal and uniform. 41 Am. Dec. 333; Cooley on Torts, 344; 22 Ark. 526; 11 Allen (Mass.) 258; 25 Ark. 289; 30 Id. 31; 117 Ala. 303; 34 Cal. 433; 43 Mo. 479; 28 Oh. 311; 43 Tex. 508; 57 Ark. 554; 105 U.S. 275.

MCCULLOCH C. J. KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1909 enacted a special statute creating the Crawford County Levee District for the purpose of constructing a levee along the Arkansas river between given points. The. boundaries of the district were prescribed in the statute. The validity of said statute was sustained by this court in the case of Alexander v. Levee District, 97 Ark. 322, 134 S.W. 618.

A stream known as Frog Bayou runs through the district from the north and flows into the Arkansas river.

At the session of 1911 the Legislature passed an act amending the act creating said district, by excluding therefrom all of the lands lying east of Frog bayou and by providing that the lands so excluded should be assessed to pay its proportionate part of the initial expense incurred in proceeding under the original act. The act contained the following provision with regard to such assessments:

"The total expense already incurred by and on account of said levee district for making the survey of same, maintaining offices and clerical force, and attorneys' fees, shall be bourne by the whole district as it existed prior to the passage of this Act; that the territory hereby excluded from said district shall be liable for its pro rata part of said total expense, to be based on the direct proportion which the total property value of said excluded territory bears to the total property value of the whole district as it existed prior to the passage of this Act; same to be determined from the valuations as they appear upon the real estate assessment book of Crawford County for the year 1909; and that the amount for which said excluded territory shall be liable, as determined from said assessment book in accordance with the terms of this Act, shall be collected as provided by said Act amended hereby."

Another section, concerning the levying of assessments for the purpose aforesaid, reads as follows:

"That for the purpose of raising money to pay for the survey and other initial expenses of the organization of the district heretofore mentioned, there be levied for the year 1910, upon all the lands in said district, as originally constituted, including these lands which are now taken out of said district, the sum of five per cent upon the value of said lands, as the same appears upon the assessment books of Crawford County for the year 1910, leaving all future levies to be made by the board of directors of the levee district, as provided in the Act creating the same. Said tax shall be certified by the county clerk of Crawford County, to the collector of the county, and the collector shall proceed to collect the same, whether the parties owning the same have paid their other taxes or not, and if said taxes for levee purposes aforesaid are not paid on or before the tenth day of April, 1911, the collection thereof shall be enforced as provided in the terms of said Act creating the said district."

Appellee owned lands in the excluded territory and instituted this action in the chancery court of Crawford County attacking the validity of said amendatory statute and seeking to restrain the collection of assessments on his lands.

The court overruled a demurrer to the complaint and sustained a demurrer to the answer. Appellant failing to plead further, the court rendered a final decree in appellee's favor, making the injunction perpetual.

If the amendatory statute is valid no cause of action is stated in the complaint, therefore the grounds of demurrer were not waived by pleading over. Martin v. Royster, 8 Ark. 74; Frank v. Hedrick, 18 Ark. 304. The demurrer to the answer reached back to the defective complaint. Logan v. Moulder, 1 Ark. 313; Hynson v. Burton, 5 Ark. 492; Carlock v. Spencer, 7 Ark. 12; State v. Allis, 18 Ark. 269; Yell v. Snow, 24 Ark. 554; Smith v. Thornton, 74 Ark. 572, 86 S.W. 1008.

The ground for attack on the validity of the statute is that it is beyond the power of the Legislature to impose on lands excluded from the district the burden of taxation to pay the initial expense incurred by the district as originally organized.

It is not alleged in the complaint that the lands of appellee would not have received benefit from the construction of the levee as originally projected when the expense was incurred, before the statute was amended. The case does not come within the principles announced by this court in Coffman v. St. Francis Levee District, 83 Ark. 54, 103 S.W. 179. All that is alleged is that those lands will derive no benefit from construction of the levee under the statute as amended.

The question presented is very important and its solution may be far-reaching in effect.

It may be well, in the beginning, to express our approval of some of the sound principles advanced by counsel for appellee.

"Whether a particular object of taxation is public or private is a judicial and not a legislative function." Dodge v. Mission Township, 107 F. 827.

"If the expenditure is in its nature such as will justify taxation under any state of circumstances, it belongs to the Legislature exclusively to determine whether it shall be authorized in the particular case; * * * on the other hand, if its nature is such as not to justify taxation in any and all cases in which the Legislature might see fit to give authority therefor, no stress of circumstances affecting expediency, importance or general desirableness of the measure * * * will supply the elements necessary to bring it within the scope of legislative power." Lowell v. Boston, 111 Mass. 454.

It must also be conceded that "special assessments for local improvements find their only justification in the peculiar and special benefits which such improvements bestow upon the particular property assessed. Any exaction in excess of the special benefit is, to the extent of such excess, a taking of property without compensation," and without due process of law. Kirst v. Street Imp. Dist., 86 Ark. 1, 109 S.W. 526; Alexander v. Levee District, supra.

But it is not essential that the benefits be actually realized. Expenses must be incurred in advance of the enjoyment of benefits and assessments must necessarily be levied upon the basis of anticipated benefits. Salmon v. Levee District, 100 Ark. 366, 140 S.W. 585; Ross v. Bd. of Supervisors, 128 Iowa 427, 1 L. R. A. (N. S.) 431.

This being true, if the district be dissolved or dismembered, the Legislature may, in order to provide for payment of expenses incurred in initiating or forwarding the improvement, authorize assessments based on the benefits which were anticipated.

The case of Ry. v. Pierce Co., 51 Wash. 12, 23 L. R. A. (N. S.) 286, 97 P. 1099 supports that rule, though the decision goes further in some respects than we are willing to approve.

In case of dismemberment of the district or of exclusion of territory therefrom, the assessments must be limited so as to cover only expenses incurred for the common benefit of property in the territory originally...