Board of Directors of St. Francis Levee Dist. v. Bodkin

• Decision Date: 26 May 1902
• Parties: BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. v. BODKIN et al.
• Court: Tennessee Supreme Court

69 S.W. 270

108 Tenn. 700

BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. v. BODKIN et al.

Supreme Court of Tennessee.

May 26, 1902

Appeal from circuit court, Shelby county; L. H. Estes. Judge.

Action by Bodkin Bros. against the board of directors of St. Francis levee district. From a judgment in favor of the plaintiffs the defendant appeals. Reversed.

Turley & Turley and Gillham & Gillham, for appellant.

Greer & Greer, for appellees.

McALISTER J.

Plaintiffs below recovered a verdict and judgment against the board of directors of St. Francis levee district for the sum of $8,380.56 damages for the breach of a contract. The board appealed, and has assigned errors.

St Francis levee district is a public corporation created by an act of the legislature of the state of Arkansas. The act provides that a certain part of the St. Francis basin, which is particularly described, and containing all that area which has at any time, either directly or indirectly, been overflowed by water from the Mississippi river, shall constitute a levee district. The act then designates certain individuals as directors, and provides that they and their successors in office shall constitute a body politic and corporate by the name and style of the "Board of Directors St. Francis Levee District," and by that name may sue and be sued, and have perpetual succession for the purposes thereinafter designated. The duties of said board are declared to be to levee the St. Francis front, in the state of Arkansas, and to protect and maintain the same by building, rebuilding, repairing or raising levees on the right bank of the Mississippi river, or such other places as said board may select. It is further provided that for the purpose of building, repairing, or maintaining the levee aforesaid, and for carrying into effect the object and purposes of the act, the board of levee directors shall have the power, and it is made their duty, to assess and levy an annual tax on all lands within said levee district, provided two-thirds of the landowners, after being duly notified, vote for such assessment. Said board of levee directors are given power to employ all agents necessary to the execution of their duties, and to make contracts for the construction or performance of said work. By an act approved March 13, 1899 (Laws Ark. 1899, p. 101), said board was authorized to issue bonds for the purpose of building, repairing, and maintaining levees on the right bank of the Mississippi river. This general statement of the nature of said corporation, its powers and duties, will suffice to illustrate the bearing of the legal question arising upon the record. The plaintiffs below, Bodkin Bros., on or about October 22, 1898, entered into a contract with the board of levee directors for the construction of a portion of the levee on the western side of the Mississippi river in the state of Arkansas. It is alleged in the declaration that said contract was in all things complied with by plaintiffs, but was breached by the defendant in this: That after said contract was entered into and signed by plaintiffs and by the defendant, through their officers and agents, the defendant, in or about February 1899, without the knowledge of plaintiffs, so changed the line of said levee so contracted to be built by plaintiffs for defendant in various places along the original line of said levee as did great harm and damage to plaintiffs, and by reason of such illegal changes without plaintiffs' knowledge or consent plaintiffs were put to great expense and additional cost to properly construct said levee; and that defendant did illegally and wrongfully take away from plaintiffs, without notice to them, and without their knowledge, a large amount of work, and relet the same to other contractors. The plaintiffs, it appears, were residents of Shelby county, Tenn., and did their work in the state of Arkansas. It further appears that said board of levee directors had an office in the city of Memphis, where their fiscal operations were transacted. Said board also had to its credit various sums of money in several banks of said city. On the 11th of June, 1900, plaintiffs brought this suit by original attachment and summons in the circuit court of Shelby county, alleging as a ground of attachment the non-residence of said levee district corporation. The attachment was levied on certain personal property and by garnishment against several of the banks, including the Mercantile Bank, of the city of Memphis, where said board had a deposit of about $19,000, which had been deposited in said bank for the purpose of liquidating the interest on certain bonds issued by said levee district board under the authority of the legislature of the state of Arkansas. At the same time a summons was duly served on the secretary of said board, who was found at the time in Shelby county. On the 21st June 1900, said levee district board executed a replevy bond, and repossessed itself of the funds which had been seized by attachment. On the 18th of September, 1900, the original declaration was filed. On the 21st of September, 1900, defendant demurred to the declaration, assigning for cause that the alleged contract was not set out with sufficient certainty and definiteness, but that the allegations with respect thereto were vague and insufficient. The demurrer raised no question in respect of the jurisdiction of the court. On the same day defendant moved to quash the attachment upon the ground that said board of levee directors is a public corporation or agency of the state of Arkansas, and that its properties are not subject to seizure by judicial process. On the 16th of January, 1901, the court sustained the motion to quash the attachment. On the 3d of January, 1901, by leave of the court, the plaintiffs filed an amended declaration setting forth with more detail and particularity the contract alleged to have been breached by defendant. The substance of the amended declaration has already been stated, and need not be repeated. It should have been stated that defendant's demurrer was overruled. On the 18th of January, 1901, the levee district board, through its counsel, filed a plea in abatement, averring, in substance, that said board is a public and governmental agency of the state of Arkansas, created by the legislature of that state for the purpose of constructing levees from the Missouri line on the north to the mouth of the St. Francis river on the south; and setting forth the powers and duties of said board under the act of the Arkansas legislature. It is then averted that said board has its situs in the state of Arkansas, and that the contract sued on was made in said state, and was to be performed there. It is then averted that said board is not liable to suit in the state of Tennessee, or in Shelby county, of said state, and that the service attempted to be made in this case upon certain of its officers of the levee district in this state did not constitute a legal service on said board. The court, on the 15th of February, 1901, overruled this plea, and thereupon defendant filed pleas to the merits, which need not be noticed in this connection. The trial resulted, as already stated, in a verdict and judgment in favor of the plaintiffs for $8,380.56. Said levee district board appealed, and the first assignment is that the trial court erred in not sustaining defendant's plea in abatement and dismissing the suit for want of jurisdiction both of the subject-matter and the levee district board.

The supreme court of Arkansas has had occasion to consider the nature and character of this board, and has adjudged it a public corporation clothed with governmental duties and functions, including the power to buy and collect public taxes. Carson v. St. Francis Levee Dist., 59 Ark 536, 27 S.W. 590; Memphis Land & Timber Co. v. St. Francis Levee Dist., 64 Ark. 258, 42 S.W. 763. It is well settled that the property and taxes of municipal corporations held and used for public purposes cannot be seized and appropriated by creditors to the payment of...