Coffman v. St. Francis Drainage District

• Court: Arkansas Supreme Court
• Writing for the Court: HILL, C. J.
• Citation: Coffman v. St. Francis Drainage District, 83 Ark. 54, 103 S. W. 179 (Ark. 1907)
• Decision Date: 13 May 1907
• Parties: COFFMAN v. ST. FRANCIS DRAINAGE DISTRICT

103 S.W. 179

83 Ark. 54

COFFMAN v. ST. FRANCIS DRAINAGE DISTRICT

Supreme Court of Arkansas

May 13, 1907

Appeal from Greene Chancery Court; E. D. Robertson, Chancellor reversed.

STATEMENT BY THE COURT.

The General Assembly of 1905 created a levee and drainage district, called the St. Francis Drainage District, in Clay and Greene counties, the purpose of said district being to maintain the levee then in existence on the west shore of the St. Francis River, and to construct such other levees on said shore line as in the opinion of the board of directors should be deemed proper and necessary, and for the purpose of constructing a drain or ditch in said territory, which was specifically designated. A board of directors was created for carrying out said public work, and corporate powers were given to said body.

For the purpose of building, constructing, repairing and maintaining the levees and drains provided for, the Legislature assessed each acre of land "a betterment of five cents per acre upon each mile of main line of railroad a betterment of fifty dollars per mile; upon each mile of side track a betterment of ten dollars per mile," etc. And provided that such assessments should continue annually until the objects of the acts were completed, or until the board of directors should deem it necessary to assess otherwise, in which event they should have the power to assess property annually for a tax thereon, which should be five per cent. upon the betterments estimated to accrue from the drainage provided for and for the protection given against overflow from the river, but said assessments should not exceed ten cents per acre on the lands and one hundred dollars per mile on the railroads; and further power was given to the board to elect assessors who should make the assessments, and provisions were made for hearing after due notice before said board of assessors. Acts of 1905, c. 171, p. 229.

Coffman Thompson, Donaldson and others, landowners within said district, brought a complaint in equity to enjoin the district from issuing the bonds or any certificate of indebtedness, from selling the same in such manner as to affect the interests of their property, and to enjoin it from letting any contract of any nature or character whatsoever to cut any ditch or build any levee in said drainage district which would affect their lands. The principal part of the complaint is as follows:

"That if the said ditch is dug or levee built at the point sought to be dug or built, plaintiffs will suffer great and irreparable injury and damage in this: The water that would flow through said ditch would empty into Bagwell's Lake, a lake and mud slough which have no outlet, and as consequence thereof said lake and mud slough, which are virtually without any channels, would overflow the whole country for miles around, inundating farms heretofore free from overflowing, and thereby render said farms unfit for cultivation and worthless as farms; that the building of said levee would in like manner destroy said farms by causing the water to seek an outlet through creeks, sloughs and bayous, and thus cause them to overflow plaintiff's lands, thereby rendering them unfit for cultivation as aforesaid.

"Plaintiffs and those who have a general common interest with them in this suit state that they and those from whom they deraigned title to said lands selected and settled said lands years ago by reason of being free from overflow, or by their natural lay of the country where their lands were situated they could be easily drained by turning the water into the channel of the creeks and other watercourses which have an outlet to overflow; that, by reason of said lands being so situated, they have established homes thereon, cleared up a large portion of said lands, and placed them in cultivation, which improvements, uses and rentals of said lands are of great value; that a greater portion of said lands situated in the drainage district are and have been many years prior to first settlement in said district low, flat islands, and subject to overflow, and water covers them most of the year, they are worthless for tillage; that the drainage or leveeing of said last-mentioned lands would be of no benefit, directly or indirectly, to these plaintiffs' lands or those having a general or common interest with them in this suit; but, on the contrary, if said ditch is cut or levee built, the cost of which is to be borne by these plaintiffs and others as provided in the above-named act, they will be taxed without any benefit to be derived thereby to them; not only that, but their lands will be valueless and unfit for cultivation as aforesaid."

The complaint was met by demurrer, which was sustained, and the plaintiffs, resting upon it, have appealed.

Reversed and remanded.

W. W. Bandy and W. S. Luna, for appellants.

1. The act is unconstitutional and void, because it attempts to appropriate private property for public use without just compensation. Art. 2, § 22, Const.; 13 Ark. 207; 15 Ark. 43; 31 Ark. 494; 49 Ark. 167; id. 492.

2. It is also unconstitutional because it deprives the citizen of his property without due process of law. Art. 2, § 8, Const.; 14th Amendment U. S. Const.; Cooley on Tax. (2 Ed.), 50; id. 364; id. 606, 646; 96 U.S. 97; 125 U.S. 345; 36 F. 891; 39 F. 891; 164 U.S. 112; 95 U.S. 37; 92 U.S. 482; 111 U.S. 707; 115 U.S. 335; 13 F. 751; 122 U.S. 164; 181 U.S. 327; 172 U.S. 269; 170 U.S. 55; 21 Ark. 40; 48 Ark. 370; 49 Ark. 518; 47 Ark. 431; 72 Ark. 119; 52 Ark. 529; 33 Kan. 156; 125 U.S. 365; 92 Va. 561; 69 U.S. 68; 2 Dillon, Mun. Cor. (4 Ed.), 934, § 761; 2 Cooley on Tax. (3 Ed.) 1208-9; id. 1254 et seq.

Moore, Spence & Dudley and Jno. B. Jones, for appellee.

The whole subject of the formation of taxing districts belongs to the Legislature. It has full and complete power of legislation except as prohibited by the Constitution of the State or the Constitution of the United States. 72 Ark. 119; 2 Cooley on Tax. (3 Ed.) 1208. It has the power to fix the tax or to make what appellants call a flat rate. 72 Ark. 119, quoting from 125 U.S. 345. See also 14 La.Ann. 498; 2 Cooley on Tax. (3 Ed.) 1226; 27 Mo. 495; 21 Ark. 40; 13 Ark. 752. Norwood v. Baker, 172 U.S. 269, if still the doctrine of that court could be no authority upon the power of the Legislature to establish drainage districts and levy a tax. But that case has been departed from. 181 U.S. 399; id. 324; id. 371. The act is not invalid because of not providing for an appeal. Cooley on Tax. (3 Ed.) 1393; 52 Ark. 529.

HILL, C. J. Mr. Justice WOOD dissents.

OPINION

HILL, C. J., (after stating the facts.)

In Parsons v. District of Columbia, 170 U.S. 45, 42 L.Ed. 943, 18 S.Ct. 521, the following excerpt from Cooley on Taxation was approved by the court:

"I. The major part of the cost of a local work is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefited.

"2. The major part is sometimes assessed on estates benefited, while the general public is taxed a smaller portion in consideration of a smaller participation in the benefits.

"3. The whole cost in other cases is levied on lands in the immediate vicinity of the work.

"In a constitutional point of view, either of these methods is admissible, and one may be sometimes just, and another at other times. In other cases, it may be deemed reasonable to make the whole cost a general charge, and levy no special assessment whatever. The question is legislative, and, like all legislative questions, may be decided erroneously; but it is reasonable to expect that, with such latitude of choice, the tax will be more just and equal than it would be were the Legislature required to levy it by one inflexible and arbitrary rule."

In the same case, Dillon on Municipal Corporations was likewise quoted, as follows:

"The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury or be assessed upon the abutting property or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency."

Following this decision came that of Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443, 19 S.Ct. 187, which seemed to many legal minds in conflict with Parsons v. District of Columbia, supra. So much of Norwood v. Baker as is pertinent to the issue here was quoted approvingly by this court in St. Louis Southwestern Ry. Co. v. Red River Levee District No. 1, 81 Ark. 562, as follows:

"But the power of the Legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen's right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvement is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established, as a rule of constitutional law, that the...